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hostile sects, called respectively Sânnís and Shiâhs—and to shew the character of this division the first may be represented as comprising Turkey, the second, Persia.
These differ materially in the interpretation of the Korân, but more with respect to religious rites and ceremonies than on questions of property, or mere right and wrong. Both sects were found in India; but since the English have become rulers, the contentions and mutual persecutions of these two sects have ceased, and they live in India in comparative harmony together.
The Mahomadan law-book to which I have had recourse in my endeavour to extract the principles of this law, has been the one called the Hidáýah, before alluded to, composed by Burkun, ud-Deen-ali, who died about the year 1200 of our
This work has been translated by Mr. Hamilton, and is well known to Indian scholars. Warren Hastings was the first Englishman who brought it into notice, and he directed it to be translated from the original Arabic into the Persian language, as a standard work for the guidance of the native Mahomadan courts in India (a).
Lieutenaut-Colonel Vans Kennedy, in an elaborate paper published in the Journal of the Royal Asiatic Society (b), has endeavoured to classify the principles of Mahomadan law in the same form as Blackstone had done with respect to English law, viz. :-1. As touching the rights of persons. 2. The rights of things. 3. Private wrongs. 4. Public wrongs, or crimes and misdemeanours; and he has, in my opinion, effected his object by imparting a clear understanding of their principles. I purpose slightly to refer to the principal points of Mahomadan law according to this division.
There can be no doubt that the Mahomadan Code is, in theory, distinguished by the principles of justice and freedom, but, in practice, it has degenerated into nearly a pure despotism; nevertheless, there are instances on record of the most despotic of their princes being forced to submit to the control
(a)“ The Hidáyáh, or Guide; a Commentary on Musselman Laws, translated by Charles Hamilton, Esq. 4 vols. 4to, Calcutta, 1791."
(6) Journal of the Royal Asiatic Society, vol. ii. p. 81.
of the law; and even, what may to some ears appear almost incredible, by the force of a public opinion. This latter has been obtained by one of the fundamental rules of their law; that every case should be discussed and decided upon in public; and also from the fact, that their Kazīs or judges are represented to have been generally superior intellectual men, public observance preventing them, if disposed, from pronouncing an ignorant or unjust decision.
1. As to the rights of persons :-
The duties of the prince or sovereign are accurately defined, as are those of the Kazïs, Mufties, College preceptors, teachers, and others. The collection of the revenue, and the persons liable to assessments, forms also a most important chapter under this head; at the present moment it seems to be one of deep interest to all who feel for our future position in India, and may be thus summed up. Their jurists hold that revenue is paid to the king and his officers in trust for defraying the expenses of protection and government, and for the subsistence of certain classes of the people. That it is lawfully derived from three sources, tenths, a land-tax, and a capitation-tax. The first they called ushr or a tenth, which alone was paid by the true believer-the other was called khiraj, and amounted to one half of the produce of the land, levied on such people as were subjected either by capitulation, or by force of arms. The revenue of Mahomadan princes arises therefore either from a land or a capitation tax. At first Omar fixed the land-tax according to measurement; each jarib of dry or wet cultivation, or of fruit-trees, being assessed at a certain sum; but this mode of collecting the revenue was soon discontinued, and, in lieu of it, the land-tax was fixed at one half of the gross produce, to be paid either in kind or in money. The Author of the Hidayah says, “ This tax ought not to exceed what the land can afford to pay; be it therefore known that our jurists have decided that the utmost which the land can afford to pay, is one half of the produce, and more than this ought not to be taken; one half is just, and not oppressive, because it was lawful to capture both the persons and the lands of the conquered
people, and to divide them amongst the Moslems; and therefore taking one half only of the produce of their lands must be equally lawful; but if the land cannot afford to pay one half, the prince must take less ; for to take less is lawful, but to take more than the half is not lawful.” If the crop fail either from excess or want of water, or from any other accident, such as locusts, droughts, &c., the tax shall not be levied, because it was not in the power of the proprietor to bring the crop to maturity. “But if a crop fail through the neglect of the proprietor, he shall pay the tax. If land produces two crops in the year, the tax shall be taken from the first class only." These are sound principles, upon which all assessments on land should be regulated. The capitation-tax was levied only on such persons as were not Moslems, was insignificant in amount, considered more as a mark of subjection, and a distinction between the true believer and the infidel.
In Mahomadan law there is no separation of the clergy from the laity; every Moslem individually makes his ablutions, repeats his prayers, and performs all other religious acts; and even in their general assemblies on the Friday, any Moslem may perform the duty of Innâum or Priest. The words of D'Osshon (a), a French writer of great repute upon this subject, are, “ Au reste l'ordination et la consécration sont des rites inconnus aux Mahometans, ils s'en tiennent à la cérémonie de l'institution, et pour les Docteurs, et pour les magistrâts, et pour les ministres de Culte-aucun de ces trois états n'exige, ni veux soit de pauvreté, soit de chasteté; aussi presque tous sont engagés dans les liens de marriage; ils ont même la faculté de quitter leur carrière, et d'entrer dans une autre si bon leur semble."
The rights of persons to property, and their powers of alienation, are also well defined. The opinion of Hanifâh is thus stated :-“A man may in his lifetime aliene the whole of his property, but he cannot bequeath more than one-third of it. Property aliened to charitable uses cannot be affected by gift, sale, or inheritance. Such property cannot be divided, but
(a) D'Osshon. Tableau Général de l'Empire Othoman.
the rents arising from it may be divided. The alienor may annex conditions to the alienation, and may appoint an administrator of the property aliened, and these depositors are protected by the law. The rents arising from alienators shall first be employed in the cultivation of the land, the repairs of buildings, and such necessary expenses ; and then appropriated for the purposes of the foundation. Whenever waste or negligence takes place, the magistrate shall interpose his authority, and either cause the administrators to observe the laws, or, in case of disobedience or inability, take the management of the foundation into his own hands."
The relations of private life are equally well ascertained ; those of husband and wife, parent and child, guardian and ward, defined. That of master and servant, as known to us, can hardly be said to exist, as it is not acknowledged by the Mahomadan law, which considers the employment of one free man by another free man to be merely a contract, and treated as such. The law does not sanction or impose any peculiar duties or obligations either on the part of the employer or that of the person employed. Domestic duties are performed by slaves. The most stringent rules are laid down for their treatment-full of humanity and mercy. In the Hidayah it is said, “ It is incumbent on the master to furnish his slave, male or female, with necessaries (residence, food, and clothes, according to the degree of the master)—for the Prophet has said, “Slaves are your brethren, whom God has placed under your subjection; therefore feed them with the same food which you yourselves eat, and clothe them with the same clothes which you yourselves wear; and oppress not the servants of your God.'” And as to them a right of manumission exists, the legal effect of which is the admission of the slave, if a Moslem, to all the rights and privileges of a Mahomadan: his previous bondage leaves no disgrace nor disabilities behind it.
2. As to the rights of things :—Sir William Jones on this head says, “ Unless I am greatly deceived, the work (the Sirájiyáh) now presented to the public, decides the question which has been started, whether by the Mogul constitution the sovereign be not the sole proprietor of all the land in his emfurther on,
pire, which he or his predecessors have not granted, and his heirs ? for nothing can be more certain than that land, rent, and goods, are, in the language of all Mahomadan lawyers, property alike alienable and inheritable; and so far is the sovereign from having any right of property in the goods or land of his people, that even escheats are never appropriated to his use, but fall into a fund for the relief of the poor”—and
“I am fully persuaded that no Musselman prince, in any age or country, would have harboured a thought of controverting these authorities” (a).
One word only as to the Inheritance of Property :—The division of an estate amongst the legal heirs is the most intricate chapter of the Mahomadan law. The right of primogeniture is unknown amongst Mahomadans, and the Inheritance is consequently divided in certain proportions amongst all the children, or heirs :- a wife, if there be no issue, receives à fourth, and if there be issue, an eighth, and a male receives as much as the share of two females. But every free man of sound mind, and arrived at years of discretion, is at liberty to bequeath by testament one-third of his property without the consent of his heirs ; and for a larger proportion the consent of the heirs is requisite in order to give validity to the bequest. If he have no legal heirs, he may bequeath the whole of his property by his last will. A Legatee cannot be one of the legal heirs of the testator ; for in this case he would receive a larger share than that to which he is entitled by law. A will, as with us, has no effect until the death of the testator—and he may appoint one executor or more for carrying it into effect after his death. The Kazi may, however, deprive his executor of his executorship for malversation, or on a complaint of heirs, duly substantiated by evidence. Indeed the general scope of the law is, in this respect, precisely our own :-If he die intestate, his property may either be divided by the heirs amongst themselves, or the Kazi may appoint an executor.
3. As to Private Wrongs :-The Kazi is the sole magistrate and judge, and in almost all cases, whether of public or
(a) Fol. Calcutta, 1792, Sir Wm. Jones's Works, vol. iii. p. 503.