fpcct to the writing of an abfentee, which ground cxifis Hill more
ftrongly in the cafe of a dumb perfon.— It is to be obferved that writings
are of three different forts or defcriptions : I. regular tejlimonials * ,
(meaning, fuch as arte executed upon paper, and have a regular title,
fuperfcription, arid fo forth, as is cuftomary,) which are equivalent
to oral declaration, whether the perfon be prefent or abfent: II. irregular
teftimoriials'i', (meaning, fuch as are not written upon paper,
but upori a wall, or the leaf o f a tree, or, upon paper without any
title or fuperfcription,) which are not admitted as proof farther than
merely as they figriify the writer’ s objedt or delign: and III. writings
which are not teftiirionials in any fenfe J, (meaning fuch as are delineated
in the air? or upon wulcrd) which, as they are merely equivalent
to words not heard, are no way cognizable, nor attended with any
effeft.— With refpedt to fg n s made by a dumb perfori, they arte recognized
in the cafes of marriage, divorce, and fo forth, (as- mentioned
above,) from neceffity, fence thofe are matters in which the
rio-ht rif the individual alone is concerned, arid Which are not reftridted
to any particular form of words, but are even, in fome inftances,
(fuch as of Beeya-Taata, or fale by a mutual furrender§,) effedted
without any words whatever ; and retaliation alfo is a right o f the
individual.— But there is no necejjity for punijhment, as that is a right
o f G o d , whence the prevention of it by the exigence of any doubt,)
and therefore, if a dumb perfon verify the report of a flanderer, frill
he is not liable to puniihment,— neither is punifhment inflidted upon
him if he himfelf flander another by figns, becarife the Hander is not
e x p r e f s , which is the condition of its being punifhable.— The difference
between puniihment and retaliation is, that the former is not
* Arab. Mmfl’bem Marforn. I t is a technical term, applied to all regular deeds,
.contra£ls, See.
f Arab.. Moofheen Gbayr Marfoonu T h is is the fame term, only with the addition
jpf the privitive Gbayr. J Arab. Gbayr Moojl been.
( § See V o l. I I , p. 3 6 1 .
eftablilhed
eftablilhed by doubtful evidence, whereas the latter is fo ;— for if wit-
neffes charge a particular perfon with “ illegal carnal conneBionf
or a perfon make confelGon of “ illegal carnal connection f ftill puniihment
is not to be inflidted; whereas i f witneffes teftify to “ a
“ murder” in general terms,, or a perfon make a confeflion o f “ a
murder,” retaliation is inflidted, although the term “ w ilful” Ihould
not have been exprefsly mentioned.— 'The ground of this is that retaliation
poflefles the charadter of reciprocity, as having been ordained
for the reparation of injuries ; and it is therefore admitted to be
eftablilhed notwithftanding a doubt, in the lame manner as all other
matters o f reciprocity which concern the rights of the individual.—
With refpedt, on the contrary, to fuch punilhments as are inflicted
purely in right of G o d , they have bpen ordained for the purpofe of
determent; and as that does not bear the charadter o f reciprocity,
puniihment, as not being a matter o f nepeffity, is not eftahlifhed
under any pircumftance o f doubt.— Mohammed, in treating of A ck
n o w l e d g m e n t s * , fays “ the writing of an abfentee is not cognizable
as proof, with relpedt to retaliation -(in other words, i f an
abfentee fend a written acknowledgment, inducing retaliation upon
himfelf, fuch acknowledgment is not cognizable.) Our author remarks,
upon this paflage, that it may fle taken in two, ways. F i r s t ,
by the abfentee may be meant any abfentee, whether dumb or other-
wife; and on this conftrudtion the point admits o f two determinations;
the one, what is here mentioned; and the other, what has.
been before recited. S e c o n d l y , by the abfentee may be meant a
perfon who is not dumb ;— as if he \Mohammef\ had faid “ the writ-
“ ing of an abfentee, not being dumb, is not cognizable as proof with
“ refpedt to retaliation, finee, having the power of fpeeeh, it is
“ poflible that he may himfelf appear, and make an exprefs confeflion
“ by word of mouth;— an expedtation which cannot be entertained
“ with refpedt to a dumb perfon, fince it is impoffible that fuch
Probably in the Mabfoot'.
4 D 2 “ perfon