P U N I S H M E N T S B o o k VII.
4S
evidence remains complete. But if, afterwards, one of the temainincr
four witnefles fhould retraa, puniftiment for flander is then due upon
both retraftors, and each is indebted in one-fourth of the fine of
blood. Punilhment for flander is due upon them, becaufe evidence
to whoiedom is rendered flander by fubfequent retradtation, as before
explained; and they are each indebted one-fourth of the fine of blood*
becaufe, by the three perfevering witnefles ftill remaining, three-
fourths of the validity of the body of evidence continues unimpeached,
as the perfeverance of thole who remain is regarded, and not the re-
tradiation of thofe who draw-back, (according to what is faid upon
that head in its proper place;) and as only one. fourth of the veracity is
deftroyed by the retractation of thefe two witnefles, it follows that
they remain refponfible for one fourth only of the fine of blood.
> ] ’ witneffes I f four Wltne~fl'es g‘ve evidence of whoredom again!! a man, and
prove after, thefe witnefles bejuftified by I'azkeeat* , and the accufed fuffer lapi-
iiv e fth ffn e datl0n’ and 11 Ihould afterwards appear that thofe witnefles were
dLfrom L Mat. ers’ or/awr, (by the purgators retrafting their evidence of jufti-
turgater, of fication, and declaring them to be Jlaves, or idolaters,) in this cafe the
a e i f a " fine of blood 1S d“ e from tlle purgators, according to Haneefa. The
two difciples fay that in this cafe the fine of blood falls upon the pub-
lick treafury. Some hold that this difference exifts only where the
purgators, in their retradlation, declare that their juftification of the
witnefles had been according to the belt of their knowledge and belief
at that time. The argument of the two difciples is that the purgators
have done nothing more than merely fpeaking in commendation
of the witnefles, in the fame manner as i f they were to (peak in
commendation of the accufed, by teftlfying to his being within the
* That is, by a certain number of other witnefles bearing teflimony to the competency,
&c. of witneffes who are giving evidence in any caufe, the former being denominated
the Moz&kkees, or purgators j the nature of this mode of juftification is exhibited at
large in treatmg of Evidence.
defcription
C h a p . I I I . P U N I S H M E N T S . 49
defcription of Ihfdn*, in which cafe nothing is due from them, and
fo here likewife. The argument of Haneefa is, that teflimony of the
witnefles is not proof, nor worthy of any regard, but through the
juftification of the purgators; wherefore the juftification is, in reality,
the efficient caufe of the fentence; whence the fentence muft be
referred and attributed thereto: contrary to their bearing teflimony
to the Ihfdn of the accufed, as that ftate is conditional to a perfon being
confidered a Mahfan,— that is, married, under fuch circumftances
as (in cafe of whoredom) fubjetl him to lapidation. It is alfo to be
remarked that, whether the before-mentioned juftifier Ihould pronounce
the juftification in the proper and formal terms of evidence,—
(thus, “ We tejify that thefe witnefles are freemen and believers' ’) or
not in the formal terms o f evidence,— (as thus,—1 ‘ Thefe arefreemen and
“ believers,” ) the effeftisin both cafes the fame, and there is no difference
whatever between them; this, however, holds only where the purgators
reftridt their juftification to the freedom or fa ith of the evidences,
as above; but i f they Ihould fay, “ thefe witnefles are
“ ddi/s” ft, and it ffiould afterwards appear that they are /laves, in
this cafe the purgators are not relponfible for the fine of blood; he-
caufe /laves are, in fome inftances, of the defcription of adils:—
neither are the witnefles, in this cafe, refponfible for the fine of
blood, as their declaration does not amount to evidence J ; nor are
they fubjedt to puniftiment for flander, becaufe their accufation was
made again!! a living perfon, but that perfon is now dead, and his
heirs cannot procure puniftiment for flander to be inflicted on them,
as it is not inheritable. I f the purgators perfevere in their juftification,
or have unknowingly borne teflimony therein, and it ffiould
* T h a t is, by teftifying that the accufed is married., under fuch circtimftances o ifr e e dom,
and lo forth, .as (in cafe o f whoredom) fubjedts a perfon to lapidation.
t Perfons .df refpedlable charadter, .in oppofition to reprobates.
J Becaufe they afterwards appear (from the retradlation o f the purgators) to be incompetent
evidences.
V o t . II. I! afterwards