in a cafe of murder, is aided in bringing the murderer to juftice;
whereas a perfon under compulfion is prohibited, by the l a w , from
putting to death *. The reafoning of our doctors is, that the wit-
nefles, in this cafe, cannot be confidered either as aftual perpetrators,
or as inftrumental caufes'of the bloodfhed; for nothing can be confidered
as a caufe except fuch a thing as preffes upon, and joins to, the
agent; and the teftimony of the witnefles cannot be confidered in this
light, fince, notwithftanding they furnifh legal grounds for the retaliation,
yet pardon and forgivenefs being benevolent afbs, the probable
confequence is that the avenger of blood will pardon the perfon
againft whom they bore evidence. It is otherwife in a cafe of compulfion,
for the perfon compelled is induced to execute the murder with
a view to lave his own life, which the compeller threatens to take
from him in cafe of his refufal; whereas, in the cafe in queftion,
there is no compulfion on the avenger of blood to execute the retaliation;
on the contrary, he is at free liberty either to pardon the other,
or to execute the retaliation; and where a man adls from free liberty,
and not from any neceffity, the caufe of his actions cannot be afcribed
to the witneffes: at lead, it muft be allowed that there is a doubt with
refpeft to their being the caufe; and the exiftence of a doubt is preventive
of retaliation. The Deeyat, or fine of blood, however, takes
place; becaufe that is a matter of property, and, as fuch, maybe
eftablilhed, notwithftanding any doubt which may happen to at-
tend it.
wTtnefe r IF fecondary witnefles -j- retraft their evidence, they are refpon-
trafting their Able; fince the deftruclion of the defendant’s property is referred to
refponfibfc them, becaufe of their giving evidence in the aflembly of the Kazee.
* T h is will be more fully and clearly underflood by a reference to the article Itrab, or
Compulfion.
f Meaning, witnefles who atteft the evidence o f other witnefles. (See Chap. V , o f
the preceding book.)
if,
If, on the other hand, the primary witnefles retraft, alleging that
they had not authorized the fecondary witnefles to atteft their evidence,
they are not refponfible, fince they deny the evidence which
occafioned the deftruftion of the property of the defendant. In this
cafe, moreover, the decree of the Kazee, occafioned by this teftimony,
is not rendered null, fince the denial of the primary witnefles is fuf-
ceptible of doubt, (that is, it may either be falfe or true,) and the decree
of the Kdzee cannot be reverfed by a dubious circumftance; in the
fame manner as it cannot be reverfed by the retractation of evidence,
after it has palled on the ftrength of that evidence.— It is otherwife
where the primary witnefles make the denial prior to the palling of a
decree; becaufe in that cafe the Kdzee would not pafs the decree oh
the ftrength of the evidence of the fecondary witnefles.— If, however,
the primary witnefles avow that they had authorized the evidence
of the fecondary witnefles, but that they had committed an
error in fo doing, they are in that cafe refponfible for the lofs that
may have been occafioned.— This is according to Mohammed.— T h e
two elders are of opinion that, even in this cafe, the primary witnefles
do not become refponfible; fince the decree of the Kdzee palled
upon the evidence of the fecondary witnefles, from the neceffity under
which the Kdzee lies of proceeding on the proof before him, which iq
this cafe is the evidence of the fecondary witnefles.— The reafoning
of Mohammed is that the fecondary witnefles do only repeat the evidence
of the principals; and hence it becomes in effect the fame as if
the principal witnefles were themfelves prefent.
I f beth the primary and the fecondary witnefles retraft their evidence,
the two Elders are in that cafe of opinion that compenfation is
due only by the fecondary witnefles, becaufe of the decree having pafled
on (fleer evidence. Mohatmned, on the contrary, is of opinion that
the defendant has the option of taking the compenfation either from
the principal or the fecondary witnefles; becaufe (according to the
do&rine of the two difciples) the decree pafled on the evidence of the
5 fecondaries,
for the dam*
age:— but
the primary
witnefles are
not refpon-
flble i f they
retrattor dif-
avow.
Cafe o f re-
trattation by
both primary
and fecondary
witnefles;