Evidence
againft a woman
who is
afterwards
proved to be
a 'virgin is
void.
Incompetent
witnefles, by
bearing tefti-
mony to
whoredom,
incur panifli-
ment for
flander.
The evidence
o f reprobate
I f four witrrefles bear teftimony againft a woman, that “ the has
“ committed whoredom with fetch a man,”— and it Ihould appear,
upon examination made by females employed for that purpofe, that
the woman is ftill a virgin, in fuch cafe neither of the perfons thus
accufed are liable to punilhment for whoredom : nor are the accufers
liable to punilhment for flander, becaufe the evidence of the females
employed to examine the woman accufed is a proof which fuffices to
prevent the infliction of punilhment for whoredom upon the parties
accufed; but it is not a proof fufficient to fubjeift the accufers to
punilhment for flander * : punilhment for whoredom, therefore, is
not inflifted on the accufed; nor are the accufers liable to punilhment
for flander.
If four witnefles give evidence againft a man that “ he has eom-
f‘ mitted whoredom with fuch'a Woman,” and it Ihould happen that
thefe witnefles are blind,, or have ever been punilhed for flander ; or
that one-of them is a Have, or has been punilhed for flander; in this
cafe the witnefles are all liable to punilhment for flander ; but the
accufed does not incur punilhment for whoredom ; becaufe, as a
matter of property cannot be determined by the evidence of fuch witnefles,
it is impoffible that punijhment Ihould be eftablilhed by i t ; and
the witnefles, where they are all blind, or have all before fuffered
punilhment for flander, are incapable of bearing evidence; and where
one of them is a Have, he is totally incapable of bearing evidence;
and fo alfo of one of them who has before fuffered punilhment for
flander :— by their evidence, therefore, even a doubtful whoredom is
not eftablilhed; and hence their teftimony becomes converted into
fiander; wherefore they are fianderets, and punilhment for flander is
confequently incurred upon them.
If four witnefles bear evidence to whoredom at a time when they
* Becaufe it is, notwithftanding, poflible that the a£t may have been performed upon
the woman, although not to fuch a degree as to deftroy the appearances o f v irginity.
are
are reprobate*, or if this character Ihould be affixed upon them by
competent proof after they have given evidence, they are not liable to
punilhment for flander; becaufe, although the evidence of a reprobate
perfon be defective, from his veracity being liable to fufpicion on
account of the badnefs of his character, yet he is a competent wit-
nefs, infomuch that if a Kdzee iflue a decree upon the evidence of a
reprobate perfon, his decree is valid, according to our doctors. The
evidence of reprobate perfons, therefore, goes to eftablilh a doubtful
whoredom, and they are confequently not expofed to punilhment
for flander ; and fince, moreover, from the defedt in their teftimony,
on account of their being reprobate, a doubt appears that whoredom
has not been committed, the accufed are therefore not liable to punilhment
for whoredom. Shafe-i diflents from our opinion concerning
this cafe, as he holds a reprobate perfon to: be. incapable of being an
evidence, and Confequently, that he Hands in the fame predicament a^
a Jlave.
Ik fewer than four perfons bear evidence to whoredom, punilhment
for flander is applicable to them :— thdsseffedt is induced, be-
caufe, although their teftimony be good, yet teftimony to whoredom
is fo acrcbunted only where it amounts to evidence ; and the teftimony
of fewer than four perfons, in a cafe of whoredom, is not evidence, fo
as to be accounted good; wherefore it is fancier.
If four perfons bear evidence a.gainft a man, that “ he has been
“ o-uilty of whoredom,” and the Kdzee Ihould infli<ft punilhment for
whoredom upon the parties accordingly, and it Ihould afterwards appear
that one of the witnefles is a fiave, or has at any time been
punilhed for flander, punilhment is incurred by all the witnefles, as
the. witnefles are on this occafion only three in number. Obferve however,
that in this cafe no Arifh, or fine o f damage, is due on account
* Arab. F a ß . I t is elfewhere rendered u n ju ß ; but the term here adopted approaches,
perhaps, nearer to the real meaning. Fafik fignifies a perfon who neglefls decorum in his
drefs and behaviour^ and whofe evidence, therefore, is not held to be admiflibie.
G z of
perfons is
neither attended
with
punifhment
for whoredom
to the
accu/ed, nor
with punishment
for flander
to the ac-
-cufert.
Witnefles defective
in
point o f number
incur pu-
niihment for
flander:
and fo alfo«
o f the complete
number
o f witnefles, •
where one o f
them afterwards
proves
incompetent:
but no fine is
due in this
cafe, except