«cufed' o f fucH flagellation, cither from the witneffes, or from the public trea-
titat, when a fury:- but if, in confequence of the evidence,, the perfon. accufed.
from the pub- ^ 0UU have been ftoned to death by a fentence o f lapidation,. the
lick treafury.' Deyit, or fine of blood, is due from the publiek treafury. This.is the
dodtrineof Haneefa. T h e two difciples fay that the fine of damage
is alfo due from thè publiek treafury in the former cafe. The compiler
of the He day a remarks-that this difference of opinion obtains
where the accufed happens to be cut by the flripes he has- received-
The two difciples alfo hold that if the accufed fhould chance to die in
confequence-of the correction by fcourging, the fine of blood is due
, from the publiek treafury ;— in oppofition to Haneefa ;— and likewife,
that if the witneffes fhould retradt from their evidence after the ac-
cufed has been cutby fcourging, or died in confequence thereof, they
[the witneffes] become refponfible-for the fine of damage in the fir ji
in fiance, or the fine of blood-in-the fecond. The argument of the two
difciples is that, in confequence of the tefrimony of the witneffes,
liripes are to be inflidted generally * , whether they be of a cutting
nature or otherwife, finee to avoid cutting is-not always in the-exe-
cutioner’s power;, the. fcourging,. therefore, which-is due in confequence
of the tefiimony- of the witneffes, comprehends both cutting
liripes, and alfo liripes which do not cut-, and 'confequently the cutting
is to be referred to the tefiimony of the evidences, whence they
are refponfible for the fame, where they retract from .their. tefiimony,
But where the witneffes do not retract, (that is where their evidence?,
is fet at. nought,, not by retrailation, but by one of them being afterwards
difeovered to be incompetent,') the fine of blood is due from the
publick treafury, becaufe the adt of the executioner is to be referred.
to the Kazee, and the Kazee. adts: on.behalf of. the community off
Mujfulmans, wherefore the atonement for the aft falls upon that which
is the property of all the Mujfulmans, namely, the publiek treafury,
in.the fame manner, as.in a cafe, of wounds, or retaliation. The argument
of Haneefa is that as nothing is due in confequence of the tefti-
* Thatis, not reftrifted to any particular delcription of liripes.
mony
many" of the witneffes, further than funijhment, (by which is under-
Hood fuch a fcourging as excites pain, but fuch as'evidently cannot
prove deftrudtive,- except through the fault of the flagellator, proceeding
from his careleflnefs or incapacity,) the cutting, therefore, is
to be referred to him albne, and not to the tefimony o f the witneffes
but- yet (according to the Rawdyet-Saheeh)’ the fcourger is not made
refponfible, left men fhould be deterred from the infliction of punifh-
ment, by an apprehenfion of being made anfwerable for the confe-
quences! of it-
I f four witneffes bear teftimony to an evidence given by four other The teffi-
witnefles, againft a man, of his having committed \ Q / o whoredom’, ap u- cmo0naVary witnifhment
is not to. be inflidted upon the perfon lb accufed, becaufe- neff<:s invali-
evidence in fupport o f evidence introduces an increafe of doubt, fince primary
wherever, in the recital of a faff, the channels of communication are neffcs'
multiplied,, the doubt of it’ s.’truth increafcs in proportion ; and there
fs in this cafe no neceflity for confidering the fecondary witneffes in
the light o f originalwitneffes.. And if the four original witneffes
fhould afterwards come and' bear teftimony of themfelVes to the
whoredom, in the place where the fecondary witneffes had before
given their evidence, here alfo no punifhment is to be inflidted on the
accufed, becaufe their teftimony has already been rejected in- one
fhape, in confequence of the rejedtion of the teftimony of the
fecondary witneffes, refpedting the fame fadt, as the fecondary wit-
nefles are the fubftitutes of the primary witneffes, from the circum-
ftance of thofe having diredted them, and thrown the matter upon
them. But here punifhment for flander is not to be inflidted an
either the original or the fecondary witneffes, becaufe both are com-
plete in point of number, although punifhment for whoredom be not
inflidted, on account of a doubt, which is fuch as fuffices in bar of
punifhment for whoredom, but is not fuflicient to fubject the wit-
nefles to punifhment for flander..
m
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