P U N I S H M E N T S .
Hl
the wife fhould not have borne a child, yet if one naan and two women,
as witneffes, bear teftimony to the marriage of the accufed, in this
cafe lapidation is to be inflidted upon him. Shafe'i fays that the at -
cufed, m this cafe, does not fuffer lapidation^; and this his opinion is
founded on his dodtrine in the laws of evidence, that “ the teftimony
“ of women is not admiflible, excepting in cafes of property."— differ
remarks .that the circumftance of the accufed being a married man,
although it appear to be only the condition of the fentence, yet is in
reality the caufe, as rendering the offence more atrocious ; wherefore'the
fentence muft- bfi referred to that circumftance; and this condition
being, in reality, the occafian thereof, the evidence of women
cannot be admitted in it, any more than with refpedt to the original
offence, namely, the-whoredom. Thus it is the fame as where two infidel
fubjedtsof the Mujfulman government teftify concerning aMujfulman
flave, who has committed whoredom, that “ his mafter had emancipated
“ him before the perpetration of the fadt,” which teftimony would
not be admitted, becaufe the Ihfan of the flave [that is, his being a
free married man\ is fo far a condition of the fentence as to be, in
reality, a caufe of it. The argument of our dodtors is that marriage
in a ftate of freedom is an honourable ftatë, and is repugnant to the
commiflion of whoredom, (as was already ftated,) wherefore this 'circumftance
cannot be, in reality, a caufe of the fentence. The
teftimony, therefore, of the witneffes to the Ihfdn of the accufed is
the fame as their teftimony in any other cafe than whoredom ; and'
as their teftimony to his Ihfan would in other cafes be credited, fo
alfo in a cafe of whoredom: contrary to the cafe of the two infidel
fubjedts and the flave, as cited by Ziffer, becaufe there the freedom
of the flave is proved by the teftimony of thofe two witneffes : but
it is not thereby proved that thé date of the flave’s freedom was antecedent
to the commiflion of whoredom,, either becaufe a MuJJulman
denies fuch date,— or. becaufe that circumftance would be injurious
to a Mujfulman. I f the witneflès who teftify to Ihfdn retradt, yet
they are not refponfible for the fine of blood: contrary to the dodtrine
of Ziffer, according to what was before obferved.
C H A P .
C H A P . IV.
Of Hidd Shirrub, or the Punifhmtnt for drinking Wine.
I f a Mujfulman drink wine, and be feized whilft his breath yet
fmells of the wine, or be brought before the Kazee whilft he is yet intoxicated
therewith, and witnelles give evidence, that “ he has drank
“ wine,” punifhment for wine-drinking is to be inflidted upon him ;
and in the fame manner, punifhment is incurred by him when he
makes confejfion of having drank wine, whilft his breath yet retains the
fnaell; becaufe the offence of wine-drinking is proved upon him, and
fakddim, or diftance o f time*, does not appear, fince the flavour of the
wine ftill remains. This dodtrine is originally founded upon a precept
of the prophet, “ Whoever drinks o f wine, let him fuffer correftion by
“ fcourging, as often as he drinks thereof.”
I f a man make confeflion of having drank wine, after the fmell
has ceafed, in this cafe punifhment is not to be inflidted upon him,
according to the two Elders. Imam Mohammed maintains that it is to
be inflidted. The fame difference of opinion obtains in a cafe where
witneffes bear evidence againft a man that “ he has drank wine” after
the fmell has ceafed. The reafon of this diverfity of opinion is that
‘Takddim, or lapfe of time, forbids the reception o f evidence in a cafe
of wine-drinking, according to all the dodtors: but Mohammed fo es
the limitation of T’ak&dim, in wine-drinking, to a certain time, namely,
one month, (according to the moft approved authorities,) he conceiving
an analogy Between this, and a cafe of whoredom, becaufe delay
is eftablifhed by lapfe o f time, and not by the ceafing o f a fmell-, and
General rule.
Punifhment is
not inflidted
in a cafe of
confejfion or
accufation,
made after
the fmell ia
gone off i
* See the preceding Chapter; p. 35.
6 the