6gz E V I D E N C E .
Theteftimony
is admiflible,
o f any one
whofe virtues
preponderate;
and o f fuch
as remain un-
eircumcifed
from any juf-
Sifiable caufe;
or o f an eunuch
3
»zofala/tard}
Book XXL
T he teftimony of him whofe virtues exceed his vices, and who
is not guilty of great crimes, is admiffible, notwithftanding he may
occafionally be guilty of venial crimes.—What is here advanced is an
explanation of the degree of integrity to which regard is paid in bearing
evidence: and this explanation is approved; for innocence with
refpeft to great crimes, and a preponderance of virtue over vice, mud
neceflarily be deemed fufficient, on this principle, that if any occa-
lional commiffion of fmaller crimes were deftrudtive of teftimony, the-
door of evidence would be fhut, whilft the prefervation of the ri°hts.
of mankind requires that it Ihould be kept open.
T he teftimony of on A ek lif (that is, of one who has omitted cir-
cumcifion on account of old age, or for fome other fufficient reafon).
is admiffible, becaufe the omiflion of this ceremony is not deftrudtive
of juftice;—excepting where it arifes from a contempt of religion, or
of the authority of the oral law by which it is enjoined, for in. that cafe
integrity no longer remain's.
T he teftimony of an eunuch is admiffible, becaufe Omar accepted
the teftimony of Alkia, who was an eunuch; andalfo, becaufe he has
been deprived of one of his members by violence, and therefore Hands,
in the fame predicament with one who has been mutilated.
T he teftimony of a bajlard is valid, becaufe he is innocent with
refpedt to the immorality of his parents. Imam Mdlik maintains that
the teftimony of a baftard is'not to be admitted with refpedt to whoredom,
as it may naturally be fuppofed he wifhes as many others as pof-
fible reduced to the fame level with himfelf, and his teftimony in a
matter of this kind is therefore liable to fufpicion—Our doctors, however,
argue that the prefent queftion relates merely to the point of integrity,
and if a baftard be a juft man, there is no reafon to fufpedt
him of fuch a wifh.
T he
C h a p . II. E V I D E N C E . 693
T he teftimony of a hermaphrodite is admiffible, becaufe fuch
a perfon is either a man or a woman, and the evidence of both is admiffible.
T he teftimony of a governor on the part of the fultan is admif- o x oM m y .
fible, according to a majority of the Haneejite do&ors, provided he do
not enforce oppreffionf but if he aft oppreffively his teftimony is not
admiffible; Some have faid that in the litter cafe alfo his teftimony is
admiffible, provided he be himfelf a man of generofity and charadter,
and be not guilty of boafting and vain talk ; becaufe it is in fuch cafe
natural to fuppofe that a regard for his reputation will prevent his af-
ferting a falfehoodand the dignity of his character will deter any one
from offering him a bribe.
W here two. brothers atteft that their father had appointed a par- Two brothers
ticular perfon to he his executor, if that perfon alfo claim the fame, .fwherYap-
tfieir teftimony is valid, upon a favourable conftrudtion,—but not if pomtment o f
he deny the appointment,— Analogy would fuggeft that their telti- mull be cre-
mony is not valid in either cafe;—(and a cafe where two legatees atteft ^ecutor ve-
that the teftator had appointed a particular perfon. his executor,—or §§£ their tef-
where two debtors or. creditors of the deceaied aliert the lame,:—or and the fame
where two executors atteft the jundtion of a third perfon with.them ^ J o f tw o 1
in the executorlhip,—is fubieft to the fame analogy;)—becaufe their legatees,, two
J t - debtorsorcreevidence
is in fome degree advantageous to the witnefles themfelves, ditors, or two
in. as much as the advantage to be derived from it refults .to them alfo. the fameef-0
The reafon for a. more favourable conftrudtion. in this particular is that
as it is. the duty of the. Kdzee to appoint an executor where it is required,
and where the death of the perfon is notorious, the evidence
in queftion is admiffible, inafmuch as it exempts the Kdzee from
this trouble, and not becaufe it eftablifties the proof of any thing.—It
is therefore a fubftitute for the caft of a. die, which faves the trouble
of eledtion.
8 O b j e c t i o n .