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THE

MAHOMEDAN LAW

OF

SUCCESSION

то

THE PROPERTY OF INTESTATES,

IN

ARABICK,

ENGRAVED ON COPPER PLATES

FROM

AN ANCIENT MANUSCRIPT:

WITH

A VERBAL TRANSLATION, AND EXPLANATORY NOTES.

THE

PREFACE.

NOTHING

OTHING more seems neceffary, in order to explain the object of the following work, than barely to cite the late ftatute concerning the administration of justice in BENGAL; by the Seventeenth section of which it is enacted, "That the Supreme Court of Judicature at Fort Wil"liam fhall have full power to hear and determine all manner of actions "and fuits against the inhabitants of Calcutta, provided that their "inheritance and fucceffion to lands, rents, and goods, and all matters of "contract and dealing between party and party, fhall be determined, "in the cafe of Mahomedans, by the laws and ufages of MAHOMEDANS, "and, where only one of the parties fhall be a Mahomedan, by the "laws and usages of the defendant:" by the twenty-first section, the provincial courts of Adálet, or Justice, are expressly recognised, and the powers of the governor and council, as the Sedr Adálet, in determining civil caufes on appeals from thofe courts, are fully established in conformity to the old Mogul constitution.

But it may naturally be asked, how the judges of the Supreme Court, the provincial councils and council general, in India, or the great court of appeal in this kingdom, can justly exercise their several powers in fuits between Mahomedan parties, without being at all acquainted with the law, by which they are bound to decide. Perpetual references to native lawyers must always be inconvenient and precarious; fince the

folidity

folidity of their answers must depend on their integrity, as well as their learning; and at beft, if they be neither influenced nor ignorant, the court will not in truth bear and determine the cause, but merely pronounce judgement on the report of other men.

For these reasons it appears indubitable, that a knowledge of Mahomedan jurifprudence (I fay nothing here of the Hindú learning), and confequently of the languages ufed by Mahomedan writers, are effential to a complete administration of justice in our Afiatick territories; a knowledge I mean, though not equal to that of the MUFTI at Conftantinople, yet fufficient for the purpose of keeping a check over the native counsellors, of understanding and examining their opinion, and of rejecting or adopting it, as it may be oppofed or fupported by their books of allowed authority, to which they should conftantly refer.

A confiderable number of thofe books have been brought to England by the curious in different ages, and are now repofited in our Academical libraries: in the Bodleian, especially, we have many treatises and differtations in Arabick on wills, inheritances, contracts, and other important heads; particularly in the fine collection made at Aleppo by the learned Pocock, from one of whose most valuable manuscripts (n. 33.) this little work has been traced through transparent paper, and engraved with such accuracy, that the plates must have equal authority in Asia with the original pages, which are near five hundred years old.

The author, a native of Alrababa, in Mefopotamia, was himself an IMAM; and his decifions are, on that account, confidered as binding by the fect of Ali, which the Indian, as well as the Perfian, Mahomedans profefs; but IBNO'LMOTAKANNA informs us, that he drew his knowledge from the fountain head, and has epitomised the system of Zaid, who was recommended by MAHOMED himself as the fureft inter

preter

preter of his laws, and who had been implicitly followed by SHAFIEI, the first writer on Mahomedan jurisprudence, in the eighth century of our era, and compofer of the Ofúl, or Principles of law, with other tracts highly valued by the learned of his religion and country.

Hence it is certain, that the Bigyato'l báhith may be cited, as a book of authority, in all the Mufleman courts; and the European reader must not be surprised, to see such a work written in a kind of loose metre, and even in rhyme: a lawtract in verfe conveys, indeed, rather a ludicrous idea, fince poetry belongs to imagination, which law, whose province is pure reason, wholly excludes; but verfe, as numberless inftances prove, is not always poetry; and a regular measure is fo confiderable an aid to the memory, that, if the metrical abridgement of COKE's Reports were more accurate, and the couplets a little fmoother, every student should be advised to get it by heart. I may add, without enlarging upon the Agathyrfi and the Turdetani, who, as we are told by Ariftotle and Strabo, had laws in verfe of the remoteft antiquity, that the ALCORAN itself, the great fource of Mahomedan law, is compofed in fentences not only modulated with art, but often exactly rhymed; fo that in Afia this apology would have been needlefs. Verbal translations are generally naked and infipid, wholly destroying all the neatness and beauty of the original, yet retaining so much of the foreign idiom and manner, as to appear always uncouth, often ridiculous; but elegance, on a subject so delicate as law, must be sacrificed without mercy to exactness; and for this reason I have rendered the Arabian treatise, line for line, and word for word, with a fidelity almost religiously scrupulous.

As it was never my intention to compofe a perfect work upon the law of inheritances among the Mahomedans, it cannot be reasonably expected, that I should fubjoin a commentary, or prefix a long dif

courfe :

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