Imprifonnrnt
may be added
toJ courging,.
The blows or
ftripes may be
inflidted from
the molt lenient
to the
fewerefl degree.
If the Kdzee deem it fit, in chaftifement, to unite imprifonment
with fcourging, it is lawful for him to do both, fince imprifonment
is of itlelf capable of conftituting chaftifement, and has been fo employed,
for the prophet once imprifoned a perfon by way of chaftifing
him. But as imprifonment is thus capable of conftituting chaftifement,
in offences where chaftifement is incurred by their being efta-
blilhed, imprifonment is not lawful before the offence be proved,
merely upon fufpicion, fince imprifonment is in itfelf a chaftifement:
contrary to offences which induce punilhment, for there the accufed
may be lawfully imprifoned upon fufpicion, as chaftifement is fhort of
punijhtnent; (whence the fufficiency o f imprifonment alone in chaftifement
;) and fuch being the cafe, it is lawful to unite imprifonment
with blows.
T he fevereft blows’or ftripes may-be ufed in chaftifement * becaufe,
as regard is had to lenity with refpedt to the number of the ftripes,
lenity is not to be regarded with refpedt to the nature of them, for
otherwife the defign would be defeated; and henfce, lenity is* not
fhewn, in chaftifement, by inflidting the blows or ftripes Upon different
parts or members of the body. And next to chaftifement, the
fevereft blows or ftripes are to be inflidted in punifhment for whoredom,
as that is inftituted by the word of G od in the Koran. Whoredom,
moreover, is a deadly fin, infomuch that lapidation for it has
been ordained by the l a w . And next to punifhment for whoredom,
the fevereft blows or ftripes are to be inflidted in punifhment for
wine-drinking, as the occafion of punifhment is there fully certified :
and next to punifhment for wine-drinking, the feverity of the blows
or ftripes is to be attended to in punifhment for fancier, becaufe, there
is a doubt in refpedt to the occafton of the punifhment, (namely, the
accufation f) as an accufation may be either falfe or true; and alfo, becaufe
feverity is here obferved, in . difqualifying the flanderer from
appearing as an evidence; wherefore feverity is not alfo to be obferved
in the nature of the blows or ftripes.
If
If the magiftrate inflidt either punifhment or chaftifement upon a
perfon, and the fufferer fhould die in confequence of fuch punifhment
or chaftifement, his blood is Hiddir ; that is to lay, nothing whatever
» is due upon it; becaufe the magiftrate is authorifed therein,
and what he does is done by decree of the l a w ; and an adt which is decreed
is not reftridted to the condition offafety^ This. is. analogous to a
•cafe of phlebotomy ;— that is to fay, if any perfon defire to be let blood,
and fhould die, the operator is in no refpedt refponfible for his death;
and fo here alfo. It is, contrary, however, to the cafe; of a hufband inflidting
chaftifement upon his wife; for his adt is reftribted to fafety, as
it is only allowed to a hufband to chaftife his wife; and an adt which is
only allowed is reftridted to the condition o f fafety, like walking upon
the highway. Shafe'i maintains that, in this cafe, the fine of blood is
due from the public treafury; becaufe, although where chaftifement or
punifhment prove deftrudtive, it is K attl Khota, or homicide by mifad-
venttine, (as the intention is not the deftrudijon, but the amendment
o f the fufferer,) yet a fine is due from the public treafury, fince
the advantage o f the adt of. the magiftrate extends to the public at
large, wherefore the atonement is due from their property, namely
from the public treafury. Our dodtors, on the other hand, fay that
whenever the magiftrate inflidts a right o f G od upon any perfon, by
the decree of G od, and that perfon dies, it is the fame, as i f he had
djed by the vfttation o f God, without any vifible caufe; wherefore
there is no refponfibility for it.
V ol. II. M HE D AT A.
If a perfon
die, in confequence
of
chaftifement,
there is no
fine.