irig of whom
induces pu-
niJhment.
Cafes which
conftitute
Hander.
he or fhe be free, of found judgment, of mature age, and a Mufful-
man ; and alfb of chafte repute ; that is to fay,— free from any fufpi-
cion of adultery : there are, therefore, five conditions required in i t ;
f i r s t ,— The freedom o f the dccufed, becaufe the word of G o d fays,
“ U p o n t h e m , ” (that is upon female Haves) “ is d u e h a l f t h e
Pj p u n i s h m e n t t h a t is d u e u p o n M a h fa n a sWhere the word
Mahfanas, by the context, implies free women, in oppofition to fa v es,
whence it appears that the term married [Mahfan]' here applies only
to free people-,— s e c o n d l y , Sanity o f intellect, and, t h i r d l y , Maturity
o f age,— becaufe infants and idiots are not liable to be fcandalized,
as whoredom cannot be proved upon fuch;— f o u r t h l y , I flam, becaufe
the prophet declared, “ A Polytheifi is not a M a h s a n and
f i f t h l y ,— Chafity, becaufe no fcandal attaches to any other per-
fons than thofe who are of chafte repute, and the accufer o f an
unchafte perfon, moreover, fpeaks truly.
If a perfon deny another’s parentage, as if he were to lay to him,
“ Thou art not thefon of thy [reputed] father!” fitch perfon thereby
incurs punilhment for Hander : this, however, is only where the
mother of the perfon thus addrefled is a married woman, becaufe fuch
denial is a pofitive acculation with relpedt to the mother of that perfon,
fince the legitimacy of a child cannot be denied unlels it be
begotten in whoredom.
I f one perfon, in the heat of paffion, fay to another, “ Thou art
“ not the fon of fuch-a-one,” and the perfon mentioned be ftiis father,
and his defeent be eftablilhed as from him, in this cafe the
perfon fo fpeaking incurs punilhment for Hander. But if thefe words
be Ipoken in any other circumftance than the heat of paffion, punilhment
for Hander is not incurred by the fpeaker, becaufe fuch words,
i f fpoken in wrath, imply malicious and wanton abufe, whereas, if
uttered in a calm and deliberate moment, they may meail no more
than an upbraiding, by denying any likenefs between the perfon
Ipoken
fpoken to and his father, in point of goodnefs of difpofition, fuch as
benevolence and fo forth.
If a man fay to another; “ Thou art not the fon of fuch-a-one,”
and it Ihould happen that the perfon named is the grandfather of him
who is thus addrefled, the fpeaker does not incur punilhment for
Hander, becaufe his aflertion is literally true. And, in the fame
manner, if a man Ihould declare another to be the fon o f one who is
his grandfather, he does not thereby incur punilhment for Hander, becaufe
the child’s child is metaphorically referred to the grandfather,.
and is called his child.
If a man call another “ a fon o f a whore f and it ihould. happen ^"e °t a*
that the mother of him who is thus addreffed is dead, and had been nlftme°mPfbV
a married woman, in fuch cafe, i f he [the fon] require punilhment flanderinSa
for Hander to be inflifted upon the Ipeaker, the fame muft be inflifted
accordingly, becaufe the fpeaker has flandered a married woman
after her death. It is to be obferved, however, that a right to demand
punilhment for Hander, in behalf of a deceafed perfon, belongs only to*
one in whofe parentage a flaw is created by the imputation,, and this,
is either the parent or the child, becaufe fcandal attaches to the
cMd of the accufed, and hence the Hander applies to the child alfo
in effect. According to Shafei, any heir may demand punilhment.
for Hander in behalf of a perfon deceafed, becaufe punilhment for
Hander is held by him to be a matter of inheritance, as lhall be hereafter
demonftrated. According to our doctors, on the other hand,,
the power of demanding punilhment for Hander in behalf of a perfon'
deceafed is not in the way of an inheritance, but for a reafon already
intimated, that the fcandal arifing from the Hander attaches to the
deceafed; whence it is that the right to demand punilhment for-
Hander on behalf of a defunft appertains to one who may he excluded:
from inheritance by the murder of the perfon from whom he inherits
and that it alfo appertains to the child of the daughter, in the fame
manner