Imatges de pÓgina

nishments incurred by crimes of a spiritual nature, those instituted for offences against person or property, being discuffed under their respective heads. The punishment of adultery is remarkably severe. The chief chapters of this book concern whoredom, drunkenness, and Nander. Discretionary correction, the subject of chap. VI. extends to all petty descriptions of personal insult, even to abusive language.

Book VIII. Larceny. On this extensive subject we shall beg leave to use all the remarks of Mr. Hamilton.

· The translator has adopted the term Larciny, as the title of this book, because that word expreffes every species of theft, from the most petty to the most atrocious. The uniform punilhment annexed to larciny, is the amputation of a limb, unless where the act has been accompanied by murder, in which case the offender forfeits his life by the law of retaliation.--Many arguments might be adduced against the law of mutilation in cases of larciny, founded as well on the inhumanity as the inefficiency and inconvenience of that mode of corre&tion. It is, however, the only method expressly authorised by the text of the Koran ;-and if we consider the force of religious prejudice, and the effect of long habit, it may perhaps appear very unadvisable to introduce any hafty alteration in the penal jurisdiction in this particular,—especially as we have nothing better to offer by way of substitute, (for surely our penal laws are still more sanguinary !) and also, as the Gentoo laws, with respect to theft, are strictly analogous to the Mussulman, in awarding mutilation under certain circumstances.-Chap. VII. of this book is particularly worthy of attention, as it respects the most daring and outrageous breach which can be made against the peace and security of society. To enter fully into the spirit of the text, in this and many other parts under the head of larciny, it is requisite that we keep in mind the peculiar manners of the people in those parts of the world where the Musulman law ope. rates. It is observable that, at the end of this book, a remarka ble instance is incidentally introduced of the forbearance of the law in a case of homicide upon provocation.'

But the grand objection to mutilation is, that the soldier who loses a hand in the service of his country, or the man who is the victim of accident, may be confounded with atrocious criminals.

Book IX. The Institutes. This important book contains a great part of the political ordinances of Mahomet, and is useful in a historical as well as in a legal view ; as it explains the princip es upon which the Arabs proceeded in their conquests, and asmany of the rules still prevail in the conquered countries. Book X. Foundlings. This book is chiefly a commentary



upon the precepts of Mahomet against the exposition of infants, a barbarous practice of his time and country.

Book XI. Troves. Book XII. Absconding of Slaves. Book XIII. Perfons missing. The rules laid down in these books arç strictly consonant to natural justice,

Book XIV. Partnership. This book contains a number of subtle distinctions with respect to property.

Book XV. Pious or charitable appropriations. In all Mahometan countries it has been a common practice to dedicate lands, houses, and other fixed as well as moveable property, to the use of the poor, or the support of religion. The various modes of alienation are here discussed with confiderable accuracy.

Book XVI. Sale. Book XVII. Sirf Sale. The former book embraces a great variety of matter: the latter seems chiefly calculated to provide against the practice of usury in the exchange of the precious metals.

Book XVIII. Bail. Under this head are comprehended all forts of security, whether for person or property;

Book XIX. 'Transfer of debts. Book XX. Duties of the Kazee. This last is of great importance, as it concerns the conduct of the magistrate or judge.

Look XXI. Evidence. Book XXII. Retractation of Evia dence. These books are extremely useful. Perjury is but slightly punished by the Mahometan law.

Book XXIII. Agency. Book XXIV. Claims. The laws concerning agents are analogous to the European. The latter of these books chiefly relate to the conduct of law-suits.

I ook XXV. Acknowledgments. In the Mussulman law an ackr:owledgment has the same effect in the establishment or t'ansfer of property, as a formal deed.

Book XXVI. Compositions. Book XXVII. Of Mozaribat, Those books contain much technical matter. Mozaribat seems to have been a device adopted in order to avoid the imputation of ufury, by which the monied man was enabled to obtain a profit from his capital, without the odium of receiving any intereft upon it. This species of contract is in common use in Hirdoftan,

Bock XXVIII. Deposits Book XXIX. Loans. Book XXX. Gifts. These books chiefly consist of plain rules applied to ordinary cases. It is to be iemarked, however, that the Muse fulman law with respect to gifts differs considerably from the Roman, in leaving to the donor an unrestricted right of refumption.

Book XXXI. Hire. Of great utility, as it comprehends (very description of valuable usufruct, from the hire of land to that of a workman or an animal.

Book XXXII. Of Mokatibs. Book XXXIII. Of Willa. These laws are little used in Hindoitan.

Book Book XXXIV. Compulfion. In the Muflulman code it appears that compelled contracts, or other acts, are valid in their effect; and that offences committed under the influence of fear have still a degree of criminality attached to them.

Book XXXV. Inhibition.

• The subject of this book comprehends every species of incapacity, whether natural or accidental. The second chapter exhibits one of the most striking features in the institutes of Mohammedanism.--How far legal restrictions upon adult prodigals are calculated for the advantage of the community at large, is not our business to inquire. It is, however, certain, that the imposition of wholesome limitations upon thoughtless extravagance, and every other species of folly, if more generally introduced, would operate powerfully to preserve the property and peace of families, and (perhaps) the virtue of individuals. The inhibitions apon debtors, as contained in chap. III. are well worthy of attention.

• Book XXXVI, Of Licensed Naves. That regulation of the Mussulman law by which a master is empowered to endow his slave. with almost all the privileges and responsibilities of a freeman, preferving, at the same time, his property in him inviolate, affords a Arong proof of its tenderness with respect to bondage. It in fact places the flave who obtains this advantage rather in the light of an attached dependant than of a mere servile inftrument, deprived of privilege and defitute of volition.

Book XXXVII. Of Usurpation. Book XXXVIII. Of Shaffa. The points of discussion which occupy these books are of some importance in every view. The regulations in the former are, for the most part, fan&tified by natural justice, and those in the latter, by many confiderations of conveniency and expedience. Several par. ticulars which occur in treating of ufurpation must indeed be referred to certain customs prevalent in Arabia. The right of preemption enjoyed in virtue of community or continguity of property, is perhaps peculiar to the Mussulman law. However accommodating to the interests and partialities of individuals, this privilege may nevertheless be considered as liable to some objection, on the score of affording room for endless litigation. Under eertain restrictions, it is both a juft and a humane institution.'

Book XXXIX. Partition. This book relates chiefly to the division of inheritable property.

Book XL. Compacts of Cultivation. Book XLI. Compacts of Gardening. These books are of use chiefly on account of the regulations concerning landed property, which incidentally occur in them. Book XLII. Of Zabbah. In the Mahometan, as in the 5


Jewish law, the eating of blood is strictly forbidden, and hence the various rules and precautions set forth under this head.

Book XLIII. Sacrifice. The rules respecting this religious ceremony are few, and simple ; and of little consequence in a civil light further than as they tend to affect property.

Book XLIV. Abominations. This part may be considered in the light of a treatise upon propriety and decorum.

Book XLV. Cultivation of Waste Lands. Mr. Hamilton observes that in most Mahometan countries, particular encouragement has been held forth to the reclaiming of barren or deserted grounds, by the powerful incentive of granting to the cultivator a property in the soil. To how little purpose ! One would rather imagine that the Mussulman religion had been calculated to deprive the earth of cultivation and of inhabitants.

Book XLVI. Prohibited Liquors. This book explains what liquors are forbidden, as being of an intoxicating nature.

Book XLVĮI. Hunting. This book is a supplement to that on Zabbah.

Book XLVIII. Pawns.

Book XLIX. Offences against the Person. The institutes of this book chiefly proceed upon the lex talionis.

Book L. Fines. This feature of the old European laws prevailed much among the Arabs, who rated the life of a man at one hundred camels, and established other fines in proportion. Some wife and falutary regulations are here given for the prefervation of personal security and public order. A man is made responsible not only for his overt acts, but likewise for any injury which may be more remotely occasioned by his care: lefsness, obstinacy, or wilful neglect.

Book LI. The Levying of Fines.

• The subject of this book is purely of a local nature, relating entirely to the levying of fines upon the Arabian tribes for offences unintentionally committed by any individual of them. These regulations serve to give us a pretty clear idea of the state of society in the native land of Islamism. However useless, and perhaps impracticable, in a more advanced state of refinement, these, as well as many regulations in the two preceding books, were well calcu. lated to reduce a fierce people under the restraints of law and civil government.

• Book LII. Of Wills. With respect to the forms of wills, the fame observations occur as have been already made in treating of mar. riage. - In fact, as writing was formerly very little in use among the Arabs, all deeds are, in the commentaries upon their laws, regasded and mentioned as being merely oral, Hence wills, as dis. cussed in this book, are folely of the nuncupative description.


The moft remarkable features in this book are, the restrictions imposed upon teftators with respect to the disposal of their proper. ty.

• Book LIII. OF Hermaphrodites. This book, and the succeed, ing chapter, which, because of its being detached from any particular subject, is termed chapter the last, are a kind of fupplement to the reft of the work. Hermaphrodites are probably a class of beings which exist in imagination rather than in reality. We shall there. fore leave this book to speak for itself. The last chapter is worthy of particular notice, as (if we except bills of sale and judicial letters) it is the only part of the work in which any thing is men: tioned concerning forms of writing.'

Mr. Hamilton, in concluding his Preface, observes, that this work is a complete code of Muflulman law, equally observed at Cairo, Aleppo, or Constantinople, as at Delhi; but we wish that he had informed us what grand variations the schism of the Shiyas has introduced into the Persian code. He adds fome remarks on the rapid decline of the Mahometan powers, and on the Muflulman legislation, which was well adapted to an age of fuperftition and ignorance, but is now wreichedly unfit

for the purposes of public security or private virtue. · In order to enable the reader to form a more intimate idea of this work, we shall lay before him an extract or two: and the first fhall be selected from book ii. ch. 1. on marriage.

• Marriage is contracted, that is to say, is effected and legally confirmed, -by means of declaration and consent, both expressed in the preterite, because although the use of the preterite be to relate that which is passed, yet it has been adopted, in the law, in a creative sense, to answer the necellity of the case.- Declaration in the law, fignifies the speech which first proceeds from one of two contracting parties, and consent the speech which proceeds from the other in reply to the declaration.

Marriage may also be contracted by the parties expressing themselves, one in the imperative, and the other in the preterite ; as if a man 'were to say to another “ Contract your daughter in marriage to me,"mand he were to reply “ I have contracted" (my daughter to you, ]—because his words“ Contract your daughter to me” are expressive of a commission of agency, em powering to contract in marriage; and one person may be autho rized to ađ on both sides in marriage, (as shall be hereafter explained ;) wherefore the reply of the father, “ I have contracted," stands in the place both of declaration and consent,-as if he had faid “ I have contracted, and I have consented.”

From vol. ii. p. 8. it appears, that the life of a Muffulman is only forfeited by three crimes: apoftafy, adultery, and mur. der.


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