574 B A I L.
Sail for the
perfon cannot
be exafted in
cafes of
punijhment or
retaliation :
but may be
taken i f offered
by the ac-
cufed.
B o o k XVllI.
without a definition of their quality, is-invalid; whence no. obligation
lies' on the furety to produce the debtor; and as, where the produftion
of the debtor is not obligatory on the furety, the bail for the perfon is
of confequence-invalid, it follows that the bail for the\property is alfo
invalid, linee this-refts upon the other.-— (From what is here.advanced
it appears that the bail in queftion is valid if the quality of the
deenars be fpecified.)— The argument of the two elders,is that the
deenars mentioned by the furety do evidently, from the circumftances
of the cafe, relate to thole claimed.— It is, moreover, a frequent practice
to keep a claim in a ftate of doubt and uncertainty.— The claim
in queftion, therefore, is valid, in this way, that the claimant will
(it is to be expected) explain the quality, and fuch explanation will
be applied to the original claimt—-and upon th e claim becoming valid,
the fir jl bail (namely bail for the perfon) becomes valid; and in confe-
quence thereof the fecond bail (namely bail for the property) alfo becomes
valid.
B a i l for the perfon is not lawful in cafes lof punifhment
and retaliation, according ..to H a n e f a that is, the Kdzee has no
power to exabt it by compulfion.— If, however, the perfon upon
whom punilhment or retaliation is claimed, lhould in a voluntary
manner give bail of himfelf, it is admiffible in the opinion of all
our doctors; becaufe that which is the end of bail for the perfon
is in this cafe alfo -anfwered, fince the production of the perfon
•of the , accufed is hereby fecured.— It is to be obferved that the perfon
upon whom punifhment or retaliation is claimed, mull not be imprifoned
until evidence be given, either by two people of unknown
character, (that is, of whom it is not known whether they be juft or
unjuft) or by one juft man who is known to the Kdzee; becaufe the
imprifonment, in this cafe, is founded on fufpicion, and fufpicion cannot
be confirmed but by the evidence óf two men of unknown chara&er,
or of one juft man. It is otherwile in imprifonment on account of
property; becaufe the defendant, in that inftance, cannot be imprifoned
but
B A I L .
but upon the evidence of two ju fi men; for imprifonment on fuch an
account is a grievous oppreffion, and therefore requires to be grounded
on complete proof.— In the Mabfoot, under the head oi. duties o f the
Kdzee.,. it is mentioned that, according to the two difciples, the defendant,
in a cafe of punifhment for flander, or of retaliation, is not
to be imprifoned on the evidence of a«e juft man, becaufe, as the ex-
adtion of bail is in fuch cafe (in their opinion) lawful, bail is therefore
to be taken from him.
575
I t is lawful to take a.pledge-or .accept: o f bail for the payment a pledge or
of any fixed tribute, becaufe tribute being a debt of which the pay- j^cepted fo
ment is demanded, it may be difcharged by means of the pledge or he payment
the bail, and hence the objects of thefe contrails is. anfwered- tribote.
If bail for the perfon be firft taken from one, and afterwards from;
another, the bail in that cafe holds with' refpedt to bothfor the de-
iign of bail is to .fix the obligation of a claim, and this may be extended-
to many, fo as to. render them feverally refponfible- Bendes, as the'
object of bail is fecurity, this- is increafed by the taking- of bail
from another; and hence, there is-no incongruity in the exiftence of
both at the fame time.
A l l that has been here advanced relates to bail for the perfon.— Bair for
With refpeit to bail for property, it is lawful, whether the extent of .Perty is i*w-
the property be known or uncertain, provided it be founded on a juft “ üpo *Tj%
debt,— that is; a debt-which cannot be annulled but by payment or deif' whether
exemption r in oppolition to a claim of ranfomr which-is a debt due by or m -
a Mok&tib to his mafter,;—becaufe that may poffibly become null, with- C!rUun'
out payment or exemption, by an inability in the MokAtik to difeharge
it. Property known in the extent is (for inftance) where a perfon
fays to a claimant “ I have become bail for a perfon who owes you a
“ thoufand new dirms.” The nature of uncertain property may alfo be
explained by an. example; as. for inftance,. where a perfon fays “ I have
“ become