Calé in which
the fine o f
blood falls
upon the
Jlajer,
afterwards appear that the witnefles are of an incompetent defcription,
nothing whatever falls on the purgators:— but in this cafe thzfine
o f blood falls upon the public treafury.
Ip four perfons bear teftimony of whoredom againft a man, and
the Kdz ee fentenced him to be Honed, and any perfon Humid flay
him, and it fliould aftewards appear that the above witnefles were incompetent,
in fuch cafe, the fine o f blood falls upon the flayer, according
to a favourable conftruftion of the law.— Analogy would
fuggeft, in this cafe, that retaliation is incurred, as the flayer has killed
an innocent perfon without caufe: but the reafons for a more favourable
conftrudtion of the law are twofold; first, The Kdzee’s fen-
tence of lapidation was, in appearance, regular and valid, at the period
of flaying, and hence was eftablifhed an erroneous admiflibility of
flaughter: contrary to a cafe in which the accufed is flain before the
Kdzee iffues his decree of lapidation, as the teftimony of the witnefs
is not proof until then :—secondly, The flayer has afted under a
conception that the flaying of that man become allowable, he having
a confidence in the argument of fuch permiflion, namely, the Kdzee's>
fentence of lapidation; and hence it is the fame as where a perfon
flays another, fuppofing him, from former circumftances, to be an
enemy, in which cafe the fine of blood is incumbent upon that perfon,
and fo here likewife.— It is to be obferved that the fine of blood
thus incurred is a charge upon the efiate of the flayer, and does not
fall upon his tribe, becaufe it is wilful homicide, for which the tribe
is not refponfible : and this fine of blood' muft be difcharged within
three years, [after the perpetration of the faft,] as being due on account
of homicide. But if no perfon were in this manner to flay the
accufed, and he fuffer lapidation by the fentence of the Ka zee, and it
fliould afterwards appear that the witnefles were incompetent,— the
fine of blood in this cafe falls upon the public treafury, becaufe the
perfons who ftone the accufed aft in conformity with the order of the
Kdzee, and hence their aft muft be referred to the Kdzee-, and as, i f
the
the Kdzee were to execute the fentence upon the accufed with his
own hands, the fine of blood would fall upon the public treafury,
fo alfo it falls upon the feme, where any other perfon executes fuch
fentence under the Kdzee's authority. This cafe is evidently contrary
to one where the Kdzee pafles a fentence of lapidation, and
another perfon flays the accufed in a different manner, and not by
fioning ; 'for in fo doing he has not afted in conformity to the order of
the magiftrate.
I f witnefles bear evidence of whoredom againft a man, declaring
that “ they had come to the knowledge of it by wilfully looking into
“ the perfon’s private apartment at the time of the faft,” yet fuch
evidence is to be credited, nor is it to be rejefted on account o f the
manner in which the knowledge of the witnefles was obtained, as
their looking was allowable, in order that they might be enabled to
bear evidence ; they are therefore the feme asphyficians or midwives * .
I f four witnefles bear evidence of whoredom againft a man, and
the accufed ftiould plead that “ he is not a married man,” and it
fliould happen that he has a wife who has brought forth a child to
him,— (in other words, fliould deny the confummation of his
marriage, after the eftablifhment of all the conditions of it,) he
is to be ftoned, becaufe the effeft of the eftablifliment of the child’s
parentage + is a confequence of his having had carnal communication
with his wife, (whence it is that i f he were to pronounce a
divorce upon her, a divorce reverfible takes place;)— and his being a
married man is eftablifhed, on account of the aforefeid effeft : and if
* T o explain this it may be proper to remark that a perfon’ s looking into the private
apartment o f another is an unlawfulaSl, which, i f it was not juftified by the motive, would
invalidate his teftimony.
t Eftablilbed in him in virtue o f his marriage.
H 2 the
Evidence to
whoredom is
valid, although
the
knowledge o f
thefa&be unlawfully
obtained.
The accu
fed’s plea of
celibacy, i f
unfounded,
does not prevent
lapidation.