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AH 0006530 Code P-EN-90-930B94 Vol 2
03 UNIV. OF CALIFORNIA, BERKELEY
Permission for the publication of this book
has been o)ptaine4 ^Y the- Government of Sind,
Pakistan. "^
FIRST EDITION 1989
Published by : DARUL ISHAAT URQU BAZAR,
KARACHI-1 Pakistan.
Phone: 213768
DISTRIBUTORS:
Idara Tul Ma'arif Darul Uloom Korangi, KARACHI-14
Maktaba Darul Uloom Darul Uloom Korangi Karachi-14
Idara-Tul -Quran, 437-D G/E, Lasbella KARACHI-5.
Idara-e-Islamiat, 190, Anarkali LAHORE.
Siddiqi Trust, Nasim Plaza, Lasbella, KARACHI-5
PRINTED AT
SHAKEEL PRINTING PRESS
ARAM BAGH KARACHI
T K E V^. "2^
HE DATA, OR GUIDE; "^
COMMENTARY
OK THB
MUSSULMAN LAWS:
TRAKStATBD BIT ORDER OP THB
GOVERNOR. GENERAL AND COUNCIL
o P
B E N G A L,
■ T
CHARLES HAMILTON.
VOL. II.
L O N O O IT:
VKINTEO BY T. BXMSI.EY.
C ON TEN T S
or THE
SECOND VOLUME.
BOOK vir.
Of Hodood^ or Punijhments,
Chap. I. Of Zuwa, or Whoredom, - - - P*g« i
Sedion. Of the MaoQcr of Puniftiment, md the in-
fli£kion thereof, • - - - - 8
Chap. IL Of the Carnal CotguHliion which occafions Puni/hmentj
and of that which does not occaAon it, - 1 8
Chap. HI. Of Evidence to fVhorcdtm^ and of Retraftation there-
from, - - - - - 3S
Chap. IV. Of mJd Shirb, or the Punijhnunt for Jrkkmg IVme, 53
Chap.V. Of i//i/i//rtf««/; or the pK/i^Z»fl«fl/ for Slander, - 58
Chap.VL Ofyawrr, orChaflizemcnt, 75
A » BOOK.
W CONTENTS.
BOOK VIII.
Of Saraka^ or Larciny.
Chap. I. lotrodudoiy, • . • . Page 82
Chap. II. Of Thefts which occafion Amputation, and of Thefts
which do not occafion it, - .87
Chap. III. Of Hi'rz^ or Cujlody; and of taking away Property
from thence, - - - •98
Chap. IV. Of the Manner of cutting off the Limb of a Thief;
and of the Executioa thereof, - . lo'f
Chap. V. Of the ASs of a Thief with rcfpea to the Property
flolen, - - - - 126
Chap. VI. Of Katta-a/'TareeJt, or Highway Robbery, - 130
BOOK IX.
j^ Seyir^ or the Infiitutti^
Chap. I. IntroduSory, - - - - 140
Chap. II. Of the Manner of waging War, - - 143
Chap. III. Of making Peace; and concerning the Perfons to
whom it is lawful to grant Prote&ion, - 150
Seflion. (Mifcellanedus, upon the fame Subjed,) 154
Chap. IV. Of Plunder, and the Divifion thereof, « 159
Se&ion. Of the Manner of the Divifion of
Plunder^ - • 174
Sedion. Of Tan/eel: that b, a Gratuity bedowed
upon particular Perfons, over and above
their Share of the Plunder^ x 80
Chap.
CONTENTS.
V
Chap. V. OftheConquefts of Infidels,
Page 183
Chap. VI. Of the Laws concerniiig Moojaminst
192
Section. (Mifcellaneous,)
196
Chap. VII. Ot'7i/6eOind Tribute,
204
Chap. VIII. Oijizyaty or Capitation-Tax,
211
Seftion. (Mifcellaneous, concerning
Zimmees,) 219
Scclion. (Mifcellaneous, concerning
the impolls laid
upon Zimmees,)
222
Chap. IX. Of the Laws concerning Apoftates,
- "5
Chap. X. Of the Laws concerning Rebels,
247
BOOK X.
Of the Laws refpeiSling Lakeefs, or Foundlings, - 257
BOOK XL
Of Looktas, or Trovis,
264
BOOK XIL
Of Uiaif or the Abfconding of Slaves,
278
BOOK XIII.
Of Ma/kootis, or Mijftng Per Jons ^
- - 286
BOOK XIV.
Of Shirhaty or Partnerfhip,
- 295
Seflion. Of Invalid Partncrlhips,
326
Section. (Mifcellaneous,)
329
BOOK
vi CONTENTS.
B O O K XV.
O/Wakf, or Appropriations, - - P^gc 334
Scflion. (Concerning MofqueSj icc.^ • 353
BOOK XVI.
Of Sale.
Chap. I. Introduftory, - - - . ^bi
Chap. II. Of Optional Conditions, - - . o^q
Chap. HI. Of Opi'iQti of InfpfcJion^ - . . ngG
Chap. IV. Of Option from De/e^7, - - ^06
Chap. V. Of Invalid y NuU^ and Abominahk Sales, - 428
Scclion. Of the Laws of Invalid Sales, - 4^3
Seftion. Of Sales and Purchafcs which are abo-
minable^ - • - 460
Chap. VI. Of Akala, or the Diflblution of Sales, - 465
Chap. yil. Of Moordbihat and Tawkeai : that is. Sales of Pr^/
and of Friend/hip^ - - / - 469
Sedlion. (Mifccllaneous,) - - 481
Chap. VIII. Of Ribba, or Ufury^ - - - 489
Chap. IX. Of Right J zx\^ Appendages^ - - 501
Chap. X. Of Claims of Rights (preferred by others to the
Subject of a Sale,) - - 503
Seflion. Of Fatoolee Beea^ or the Sale of the Pro-
perty of another without his Confcnt, 508
Chap. XI. Of 5*////;w Sales, - - . - Ji6
BOOK
i
CONTENTS. vii
BOOK xvir.
Of Sirf Sale. - - - - 55 »
BOOK XVIII.
Of Kafdlit, or Bail.
Chap. I. Introduftory, - - - - - - 5^^
Sc&ion. Of ZdmittSj or Guarantees^ - 593
Chap. II. Of Bail in which two arc concerned, - 598
Chap. III. Of Bail by Freemen in behalf of ^/avw,. and by Slaves
m hehilf of Freemettf . - - 602
BOOK XIX.
Of Hawd/it, or the Transfer of Debts, - - 606
BOOK XX.
Of the Duties of the Kdzee,
Chap. I. Introdudory, - - - - - 612.
Scftion. Of Imprifbnment,- - - - 624
Chap. II. Of Letters from one Kdzee to another, - - 62B
SeAion. (Mifccllancous,) - - 633
Chap. HI. Of Arbitration, - - _ - 638
Sc£tion. (Mifcellaneous cafes, relative to Judicial
Decifions,) - - 641
Chap. IV. Of the Decrees of a Kdzee relative to Inheritance, 649
Sed^ibn. (Mifcellaneous,) - - 661
BOOK
Vill
CONTENTS.
BOOK XXL
Of Shahadity or Evidence.
Chap. I. Introduiflory, .... ^S^
Sc<^ion. (Mifcellaricous,) - - 675
Chap. II. Of the Acceptance and Rsjedikn of Evidence j 682
Chap. III. Of the Difagrcement of Witncfles in their Teftimony, 697
Chap. IV. Of Evidence relative to Inheritance, - ' 705
Chap. V. Of A tteftation of Evidence, - - 709
Section. (Concerning the Stigmatizing of Falfc
Witncfles,) - - 715
BOOK XXII.
Of Retractation of Evidence, - - ^ 'ji'j
TRANS-
(1)
TRANSLATION
OF THE
H E D A Y A\
COMMENTARY
OK THE
MUSSULMAN LAWS.
BOOK VII.
Of HOODOOD, or PUNISHMENTS,^
HOODOOD IS the plural of HiJJ\ and Hidd \n its primitive p^^^
fcnfc fignifies obftrudlion ; whence a porter or gatekeeper is ^'^'
termed the Hiddddy or obftnxdor, from his office of prohibting people
from cnteriog. In law it exprefles the corre£kion appointed and fpe-
ciiied by the hw on account of the right of God, and hence the
extenfion of the term Hidd to retaliation is not approved, fmce reta-
liation is due as a ri^t of man^ and not as a right of God; and in the
Thcfe are here cocifined foldj to whrrdom^ drunktnnrfs^ ^cAfiMdtr. The puniOi-
mems for thejk^ Ice, tre treated of under their proper heads.
Vol. II. B lame
iinition 0
PUNISHMENTS. Book VII.
fame manner, the cxtcnfion of it to Tazcer (or difcrctionary chaftife-
mcnt) is not approved, as Tazeer is a fpccies of corre£lion not fpcci-
fied or determined by any fixed rules of law, but committed to the
discretion of the Kdzee. The original defign in the inftitution of Hidd
is determent ^ that is, warning people from the commiflion Qf ofFcnfive
adlions : and the abfolution of the perfbn punifhcd is not the original
defign of it, as is evident from its being awarded to infidels in the
fame manner as to Mujfulmans.
Chap. I. Oi Zinnay or Whoredom *•
Chap. II. Of the carnal Conjun£lion which occafions Punifli-
mcnt, and of that which does not occafion it.
Chap. III. Of Evidence in Adultery and of Rctra£tion there-
from.
Chap. IV. Of Hidd'Shirruby or the Punifhmcnt for drinking
Wine.
Chap. V. Of Hidd-Kazaf^ or the Puniflimcnt for Slander.
Chap. VI. Of Ta%eer^ or Chaftifcment.
CHAP. L
Of Zinna^ or Whoredom.
"Wliow^M Whoredom is cftabliflied before the Kdzee ^ in two different
biiLd bv modes,— by Proofs and by ConfeJ/ion ; — ^by proofs becaufe that is a
-•i^T. dcmonftration founded on the appearance of fafts;— and by c^nfejfitn^
becaufe probability is moft in ^vourof the truth in fuch acknowledge*
meat, efpecially, where it is to be the occafioa of fuSering and
* Meaning either «^i//r/rfOry}r)i/Vtf/i0ff.
ftame
Chap. L PUNISHMENTS. 3
fhame to the perfon confcfling ;— ^and whoredom being an aft the
nature of which moft frequently excludes the poflibility of po/iihc
proof, it is neceflary that circumpantial evidence be admitted as fuffi-
cicnt to eftablifli it, left the door of correftioii might be (hut.
The manner of giving evidence to whoredom is, by four perfbns Tociiabliftit
bearing witnefs againft a man and a woman that they have committed four wicnefTcs
whoredom together, becaufe God has commanded in the Koran^ faying, *" «q">re<i#
" PRODUCE FOUR WITNESSES FROM AMONG YOU AGAINST THEM;"
and alfo, " if any person advance a charge of whoredom
^' AGAINST others OF CHASTE REPUTE, AND CANNOT PRODUCE
** FOUR WITNESSES IN SUPPORT OF HIS ACCUSATION, LET HIM BE
*^ PUNISHED WITH EIGHTY STRIPES */' moreover, the prophet once
faid to a man who brought before him an accufation againft his own
wife, ** Bring Jour men who may bear tejlimony to the truth of your
*' allegation i*^ and this degree of proof is alfo required, becaufe it
is laudable to conceal and cover infirmity, and the contrary is pro-
hibited ; and by requiring no fewer than four witnefles to a charge of
whoredom both thefe ends arc obtained.
When witnefles come forward to bear evidence in a cafe of «^K ««ft *>«
whoredom, it is neceflary that the /Ci/z^^ examine them particularly examined w
concerning the nature of the offence; that is, that he aflc of each wit- Jhc^^^^r^'u^"
neft refpeftively, ** What is whoredom?" and, ** in what manner ftanccsofthe
** have the parties committed it?" and ** where ?''^ and ** at what
*' time," and ** with whom?" — becaufe the prophet interrogated
M^z as to the manner of the faft, and the nature of the offence:
and alfo, becaufe examination in all thefe particulars is a neceflary
caution, ilnce jt is pofTible that the witnefles, by the term Zinna,
may mean fomcthing not direfkly amounting to carnal conjundion,
(fuch as feeing and touching^) Zinna being a phrafe occafionally
applied to thefe alfo: — it is poflible, moreover, that the whoredom may
have been committed in z foreign country, and therefore that it is not
cognizable ; or it may have been committed at a diftant period, prior to
B 2 the
faa.
4 PUNISHMENTS, Book VU.
the charge, which is therefore inadmiflible ; it may happen too, that
the fz£t may have been committed under an erroneous conception of
the parties with refpedt to its legality, fuch as would occafion remiflion
of puniftment, and fuch as neither the parties themfelves, nor the
evidences againfl them are aware of, (as in a cafe where a man has
connexion with the female flave of hls/tm) ; it is therefore requifitc
that the judge examine the evidence minutely withrefpcd to all thefc
particulars, fince fome circumftance may appear^ in the courlc of fuch
inveftigation, fufficient to exempt from punifliment.
Uponih<«vj. And when the witneflcs (hall thus have borne tcflimony com-
duiyVv«5nf pletely, declaring that '* they have feen the parties in the ver/ a£l of
^"TnTihmcnus '' c^^nal conjuuclion'* (dcfcribing the fame), and the integrity of
paOcd. fuch evidence is alfo known to the K&xee from both an open and a
fee ret purgation, let him then pafs fentencc oi punijhnent for ivhore^
dorriy according to fuch evidence. The apparent probity of the wit-
neffes docs not fuffice in the prefent cafe, but it is neceflary that the
magiftratc afcertain their probity, both by an open and a fecret pur-
gation, in fuch a manner, that (poflibly) fome circumftance may
appear fufficient to prevent the punifhmcnt, becaufc the prophet has
faid ** Seek a pretext to prevent punijhment according to your ability ;'•
contrary to all other cafes, in which the apparent integrity of
the witnefles is (according to Haneefd) held fufficient. The
mode of open and fecret purgation is fully fct forth under the head
of Evidence.
Mohammed has fald, in the Mabfoot^ that the Ka%ce may im-
prifon the accufed, until he make a purgation of the witneflcs, becaufc
the perfon againft whom the teftimony is ^ven ftands charged with
\<^horedom upon the evidence of witnefles; and alfo, becaufc the pro-
phet once ordered a perfon charged with whoredom to be imprifoned:
contrary to a cafe of debt^ fmcc a debtor cannot be imprifoned .upon
a charge of debt exhibited againft him by witneflcs, until their
probity
Chap. I. PUNISHMENTS, 5
probity be fully proi^ed. The nature of this diftinftion (hall be treated
of at large in another place,
TuE confcflion which eftabliflies whoredom is made by a perfon Confefllon
of found mind and mature age acknowledging himfelf (or herfelf) ^"wd four
guilty of whoredom four times, at four different appearances, in the ^}^^^^^
prefence of the Kdzee^ he [the Kdzee] declining to receive the confeflion ,
and fending the perfon away the firft, fecond, and third time. The
maturity and fanity of the perfon confeffing are conditions, becaufe
the declaration of an infant or an idiot is not worthy of any credit, or
becaufe the acknowledgment of fuch is not fufficient to induce a
fcntence of punifliment. The condition of the confeflion being made
four times at four different appearances is agreeable to our doftors.
According to SbafeU a (ingle confefTion, in a cafe of whoredom, is
fufficient, becaufe he conlidcrs the law to be the fame here as in all
other c'afes, the confeflion or ackiiowledgment of any circumflancc
being the means of difclofing or difcovering that which is fo con-
feflcd or acknowledged; and a fingle confeflion is fully adequate to
this purpofe, a repetition being of no manner of ufe, fince the dif^
clofure or difcovery is not in any degree increafcd or amplified by it :
contrary to plurality of witnefles, as the abundance of witnefles is 2
means of removing all doubt with refpeft to their veracity, and of
affording fuller fatisfaftion to the mind ; whereas, by the repetition
of the declaration of a Jingle perfon^ (as in cafe of confeffion^ no fuch
additional fatisfaflion is obtained. The arguments of our do£^ors in
oppofition to what is here advanced by Shafei arc twofold : first. The
cafe of Mdaz^ on whom the prophet would not decree -any punifti*
mem until he fhould have made coiifcffion of his offence four dif-
ferent tsmNes at four different appearances, where it is to be concluded
that if a Angle confeffion had fufficed, and it had been proper to
proceed to punifliment upon the force of it alone, the prophet would
not have delayed to inflift it until the confeflion fliould be four times
repeated as above ;~secondly, as in evidence to whoredom fout
witnefles
PUNISHMENTS. Book VII.
tritneflcs are requidte, (b al(b m the confeflion thereof four repetU
tloiis are requifite, and for the fame reafon, namely, that it is laudaUc
to conceal infirmity; and this condition of the repetition of confcflion
has a tendency to conceal infirmity. The reafons for eflablifhing four
appearances of the peribn confeflingas a condition are twofold ;-— first»
the tradition oi Mda%^ as already related; — secondly, a plurality of
confeffions is made .a coridition, and that cannot be obtained without a
plurality of appearances on the part of the confeflbr, liiKie one efie€t of
an unity of place or appearance is to render the feparate declaration of
the fame thing as one declaration ; and hence four confeffions, in a
' iingle appearance ^^ amount only to a fingle confeflion ; and* as con-
feffion relates only to the perfba confejing^ the unity, or otherwife,
of hiis appearance^ is regarded, and not that of the Kdzee*s alTcmbly :
and this appearance is made four feparate times, by the iG£z^^ repelling
the pcrfon's firft confeflion, and faying to him ** Thou art mad !'"
and fuch other words, the perfon, upon the KJzec thus repelling his
confeflion, going forth, fo as to be out of the JCazee^s ^ght, and re*
turning again, and repeating his confedion ;*-<tQd fb on to the fourth
time. This is recorded, from ji&oo Haneefa^ on the authority of the
conduft of the prophet in the inftance of Maav^ whom he tlius feat
out of bis fight three different times.
* The term MajVtt^ which, for the fake of perfpicuity, is in this place tranflated appear-
emu^ literaDy iignifiet t ftat or place rf fitting i and it maj cdmit of varioas cxplanstion?,
according to the circumfiance .under which it is applied, or the perlbn to whom it relates.
When it is mentioned as die Majlis of the Kizet^ it means the poibSc effimblf or fttrt of
that magiftrate : when it applies folely to the parties who come to make any declaration
before the Kaza^ it may be rendered the appearance of that party in cot/RT. It alfo fre-
quently refers to a private company^ and fometimes merely to the po/lttre of the party (as
in the cafe of divorce left at the o|)tion of the wife.) In fliort, to define the true and
precife application of the term Majlis in the prefent cafe regard maft be had to the AAifuU
mah udiges, it being cuftomary for the Kazee to admit people to deliver the fubftance of
thtir feftimony in zfittng pofture, and hence every time the party arifirs and again refumes
bis felt may be rendered a new appearance rfthat parly in ceurt.
When
CHAf.I. PUNISHMENTS, j
When confcffion fhall have been made ia chU manner four dif- "^ E^""
fereiit times, the K&ue mufl then proceed to examine the perfon {q muft be fsr-
confefling, alkingfiim "What is whoredom ?— and, «• wbtrt^ and £S!!^^**'
*^ iu what manner^ and with vibwn — ^have you committed this whore*
** dom ?••— AU which duly obfervedy the perfon confefling becomes
then properly obnoxious to punifliment, as tfc» proof b complete;
The advantages attending the examination of the confefling per(bi\
have been already explained under the head of witnefTes bearing evi-^
dence to whoredom: but it is to be obfcfrvcd that although it be
directed there that the KAue examine the witnefies with relpefi
to the thne of the perpetration of the fad, yet it is not requifitc
to puta fimilar queflioa to a perfon whoconfcjis^ becaufe that delay
which would impeach the credibility of a v)hntfs does not in any re«
iped impugn the credibility of a perfon who makes a voluntary con*
feiSon: fbme, however, have faid that if the KAz^e interrogate fuch a
perfon with refpeft to the time of the fa£k, it is lawful, fince it is
poiTible that it may have been committed tvLVOL^Infancy^
If the perfon confefling fliould deny the faft, and rctrad from A perfon may
his confcfSon, either before or during .the infliftion of punifhment, his S^^S.
retrafbition mufl be credited^ and he mufl forthwith be releafed.—
Sbi^ci and Ibn Lmke have faid that retra£bition after confefljon is not
to be credited, but that the punifhment muft be infli£bed, finceas it
has been already incurred by the coAfef&on, it cannot be done away
ia confequence of denial ; as in a dafe, where whoredom is efbblifhed
agsunft a perfon upon thetcflimony of witneiles ;— or as in a cafe </i«-
taliation, or of punifhment for flander ; — that is to (ay^, when retalia*^
tion or punifhment for flander arc once eftabliflicd upon the con-
feflkMi of the offender, they do not drop in confequence of his fubie-
qucnt denial of the faft ; and fo in this cafe Kkewife. The Argument
of our doaors is that denial after confeffioiv is an itoimatum^ which
(like the confcffion) may be tithtr falfe or truey and there is no
perion to difprovc fuch denial; and hence, from the inconfiflcncy
• betweca
PUNISHMENTS- Booc VIL
between the confeflion and the denial^ a doubt anfes concermng the
confefTion; and punifiiment drops in confequence of any doubt;
contrary to intimations which involve the rights of individuals,
(fuch as retaliation^ aiid punifhment for (lander,) as the claimant of
the right, in thofe cafes, is the difprover of the perfbn who has
confeflcd, when he afterwards denies, which is not the cafe in anjT
nuitter involving merely a right qf the law.
It is laudable in the KAzee^ or Intdm^ before whom confeflion of
whoredom may be made, to infbruft the perfbh confefCng to deny it,
by faying to him ** Perhaps you have only iijfed or touched her,'*
becaufe the prophet fpoke fo to Mdaz'i — and Mohammed, in the
Mabfoot^ adds that the judge may alfb examine the confeffing perfbn
with refpeft to fuch circumfbnces as, if made to appear^ would tend
to his entire exculpation, fuch as, ^^ whether the faA confefled may
'* not have been committed in marriagc^^ or ^^ under an erroneous
•* mifconception of its legality ?"
SECTION.
Of the Manner of Punijhmcnt^ and the Inflidion thereof.
A m^riii Whkn a perfon is ftilly convided of whoredom, if he be married
^Si ^" let him undergo the puniftunent of Rajim^ that is, lapidation, or
^■*2^*2^ '" fioning to death, becaufe the prophet condemned Maaz to be thus
ftoned to death, who was married; and he has alfo declared, ^* // is
*V unlawful to fpill the blood of a Muffulman^ excepting only for three
** caufes^ namely apostacy, whoredom after marriage^ and MUR-
** der" — ^and in this all. the companions likcwife unite.
It
Cha?L punishments. 9
It is ncccflaiy, when a whoremonger is to be ftoned to death, Mndcofnrc.
that he (hould be carried to (bme barren place, void of houfes or cuiti- (Ution.
vatibn ; and it is requifite that the ftoning be executed, — firft by the
witne^, and after them by the ImSm or Ktnaet^ and after tho(e
by the reft of the by-(hnders, becauie it b ib recorded from Akis^ and
alio, becatife in the circumftance of the execution being begun by
the witneiTes there b a precaution, fmce a peribn may be very bold
in delivering hb evidence againlV a criminal, but afterwards, when
directed himfelf to commence the iiiflidion of that puniftiment
which is a confequence of it, may from compuoSion retraA his
teftimony; thus cauHng the witnefles to begin the punifhment may
be a means of entirely preventing it. Shrfci has &id that the wit*
nefies beginning the puniftunent b not a requifite, in a cafe oi lafida^
ttMj any more than in a cafe oifcourglng. To thb our doAors reply
that reafbning upon a cafe of Upidation from a caie oifcourgmg is
fuppofing an analogy between things which are eflentially difterent,
becauie all peribos are not acquainted with the proper method of in-
Aiding flagellation, and hence, if a witneis thus ignorant were to
attempt it, it might prove fatal to the fuflferer, and he would die
where death is not his due : contrary to a cafi: cf lapidation^ as that is
of a deftnidive nature, and what every peribn is equally capable of
executing, wherefore if the witnefles ihrink back from the commenice*
ment of hpidation, the puniihment drops, becaufe their reludance
argues their retradation. In the fame manner puniil^ment b remitted
when the witneiles happen to die or to di&ppear, as in this caie
the condition, namely, 4ht twmencemtnt of it by tin wiineffes^ b
defeated. This is when the whoredom is eftablilhed upon the tefti-
mony of witneiles : but when it b eilabliihed upon thecotifeflion of the
oflfender, it is then requifite that the lapidation be executed, firft by
the Imim or the Kdzec^ and after them by the reft of the multitude,
becauie it is fo recorded from Alee ; moreover, the prophet threw a
imall ftone like a bean at Ghanakea who had confeftcd whoredom.
What is iaid upon this fubjcft is taken from the Zabir-Rawajef.
Vol. IL C Th*
10 PUNISHMENTS- Book VIL
The corpfe of a pcribn executed by lapidacion for whoredom is
entitled to the ufual ablutions, and to all other funeral ceremonies,
becaufe of the declaration of the prophet with refpc£t to Mda%f ^* D0
** fy tie body as yah by tbofs of other befieven*^^ — and alio, becaufe
the ofFender thus put to death is (lain in vindication of the laws of
God, wherefore ablution is not refused, as in the cafe of one put to
death by a Sentence of retaliation : moreover, the prophet allowed
the prayers for the dead to Gbamdeettf after lapidation.
AnunmBrricd jy the perfon conviSed of whoredom he free ^ but umarried. the
free perfon n , * . , .
tobefcour^ puni(hment with refpeA to him is one hundred firifes^ according to
d«d ftripSs?" y*^^ is faid in the Koran^ *' the whore and whoremonger shall
'* YE scourge with AN HUNDRED STRIVES ;" — for although thistext
be cancelled with refpeft to married pcxfons^ yet in regard to all other
than thoTc who are married the law muft be executed in conformity to it»
Modeofexe- OBSERVE that the hundred ftripes inflifted by the decree of the
i^. ma^ftrate muft be adminiftered with a rod which has no knots
upon it ; and that the ftripes muft be applied with moderation^ that is
to &y, neither with feverity, nor yet with too much lenity ; becaufe
jlUe^ when he was about to infli£t corrcftion, ufcd to fmooth off
firom the rod any knots which might happen to be upon it ; and as
too much feverity on the one hand tends to deftrudion, (b on the
other hand too much lenity is inadequate to the defign of correction.
And when punifliment is to be infiiAed, on any perfon, it is neccilary
that he be ftripped naked ; that is to fay, that all'the clothes be taken
oflF,. except the girdle; — ^becau(e ^/rr directed (b in this matter; and
alio, becaufe the punifliment is in this way adminiftered with the
greateft effeft: but as the removal of the girdle from the body would
expofe nakednefs, it is therefore to be left.
'"1'*"^ It is requifite that the hundred ftripes be given, not all upon
*"** "^ 8 the
Chaf.L punishments. i,
the £une part or member * of the perfba upon whom puniOimciit is ^ P^^^ ^
inflicted, but upon different parts^ as it might btherwife be attended ^e^^
with danger to life ; and none of the (Iripes mud be infllfted on the
JacCf the Jlftadf or the prhitUs^ becaufc the prophet once £iid to an
executioner, ** In h^HBing the punijhtmnt take care not tojlnke the
** FACE, the HEAD, 0r the privities ;'• and aifo, becaufe the firft
of thofe is the feat of expreflion and likemfe of beauty; and the
fecond is the central feat of the ienfes ; and the third is a part which
cannot be wounded without danger to life ; and it is to be apprehended
that in the firft and fecond inftance the appearance and the faculties
might fuftain material injury, and the injuring of thofe is a fpecies of
definition to the man; and that in the laft life might be endangered :
it is unlawful therefore to ftrike on any of thofe parts, the defign of
corrcftion being amendment and not deJiruHion. Aboo Too/of has faid
that one or two ftrokes may be given on the head, as jiboo Bibr
once faid to aix executioner, *' Strike on the bead^ becaufe there the
<« devil reJidesC^ in reply to this, however, we remark thzt Aboo Bihr
gave this dire£lion with refpeft to an infidel alien, who had been ufed
to feduce believers from the faith, and whofe life of courfe had been
forfeited.
Whbh a man is to be fcourged for whoredom he is to receive his Scoomng
punifhment in aftainding pofture, becauier^/rr has iaid, ** Correffion Sifted upolTa
'* is to be it^Qed upon men fianSng^ and upon women Jitting\^' and ^^^1'
alio, becaufe the proper mfii£fcion of punifhment depends upon it's womiii////v
being openmApubEcl, which is beft efiefted by its being received in a
fiandiug pofture; but yet as a woman is nakednefsf , in thus admini-
ftering the.corredion ta her there might be an apprehenfion of the
expofure of nakednefs. It is to be obferved that in adminiftering pu-
• In th£ original, Azit, t Kmiv which would mike this Tpectcs of corrcdion more
propfei'ly to »pply to the haJli$mU.
t *^ AwMom ii tuiiAtifif* Aat it to (ay^ tfcry part of a Woman's pcrfon is equally
mlecenf cobrfeesi.
C a nifliment
ij PUNISHMENTS. Book VII..
nifhmcnt it mtift not be infli£lcd in the way ofMid^^ Concerning
the meaning of the term Mid there are various opinions: — lotnt fay
that it fignifics laying a perlbn on Ids face upon the ground, and
ftrctching out his limbs;— forae, that it fignifies the exccutioiier
drawing the rod over his own head ; others, that it fignifies the exe-
cutioner drawing back the rod, after giving the blow ; but the correc-
tion muft not be inflifitcd in the way of Mtdf according to any of thefe
acceptations, as it is more than what is due.
Afr9itort' If the perfon convi£ted of whoredom be a fiavff male or female,
flSpw. ^^c puniihmcnt of fuch is fifty ftripes, becaufe the Almighty has
faid [in tlic Koran] fpcaking of female flaves " they shall be
•* SUBJECT TO . HALK THE PUNISHMENT OF FREE MARRIED
•• FEoPLef — 2nd the term Jlave in the text extends to wales as well
fls Xo femaifs, Morrcvcr, as bondage occafions the particii>atioii of
or.l)* half the i^Uljings of hfc, ir alfo occanoas the. futyering of only
iialf the funfjb,i]€ntSy bccaufc an uficnce incrcafcs in magnitude in
proportion to the magnitude ot4)lclilngs under the enjoyment of which
it is committed.
A womin is The punifliaicnt of whoredom is the fanic with refpedl toboth fcxes,
/r«>/f^. as all the texts which occur in the facrcd writings upon this fubjedk
extend cquaJl y to both ; but yet a woman is not to be ftrippcd, neither
is her veU to be taken off, but only her roAr, <» other outward gar-
ment, as the removal of any other part of her drcfs would be offenlive
to modefty ; but as the robe or outward garment would prevent the
cffca of the corrcAion, and the removal of fuch is not indecent. Ihe
istobeftrippedofthefe.
A WOMAN is to receive her punifliment in zfuiing pofture, accord-
mg to the dircaion of Alec before recited, and alfo, becaufe in this a
regard is (hewn to decency, which it is incumbent to preferve; and
• Literally hmithi ii admitt ofvarioui appUcatioos.
5 for
CiiAF.L PUNISHMENTS. 13
for the fitmc rc&(bn, where a woman is to be floned, a hole or exca-
vation (hould fcc dug to receive her, as deep as her waift, becaufc
the prophet ordered luch a hole to be dug for Gbaiudeca before-mcn-
tionedy and Alee alio ordered a hole to be dug for Shooraha Hamdeeanec:
it is however immaterial whether a hole be dug or not, bccaufc the
prophet did not iflue any particular ordinance refpe£ling this ; and
the iiakedneis of a woman is fufficiently covered by her garments ; but
yet it Is laudable to dig a hole for her, as decency is thus mod eSec*
tually preferved. There i& no manner of necefltty to dig a hole for a
nioHf becaufe the prophet did not fo, m the ca(e of Mda%. And ob*
fervcit is not lawful to brndz, perfon in order to execute punifliment
upon him m this cafe, unlefi it appear that it cannot otherwife be
tnfliacd.
A MASTER cannot mflifl corre£lion upon his male ov female flave SU%cf
[for whoredom] but by permiflion of the Kd%ce. — Sbafei has laid, that pjaJd^iSr*
it belongs to a matter to inflift corre£lion upon his flave, in this as well jj^^'^jijj.
as in any other cafe, becaufe a man's authority over his flaves is gene* rity.
rtf/and abfolute^ even preferably to that of the Kdzee^ as a matter is
empowered to perform a£ts with refpcfl to his flaves in which the
Xifsrr is not empowered ; this, therefore, is the fame as Tazeer^ or
di(cretionary correftion; that is to fay, the matter is at liberty to in*
fliA ftated punifhment for whoredom upon his flaves in the fame
manner as difcretionary corre^lion. The arguments of our do£bors
are twofold ;-^first, the prophet has declared that there are four
things committed to magittrates, and that one of thofe is Hidd^ or
ftated punifliment, which is here treated of; — secondly, Hidd^ or
dated punifhment, is a right of God, as the defign of it is to purify
the world from fin; and as it is a right of God, hence it cannot be
done away by the aft of any individusd, wherefore this right b to be
exafted by the prince, as the deputy of the law, or by the Kdzee^ as
the deputy of t^t prince: contrary to Tazeer^ or difcretionary cor-
rection,
dadott.
,4 PUNISHMENTS. BookVU.
cedion, bccaufc that is a rij^t of the tndtvidualt whence it is that
infants are fubjei9: to Tazfcr^ althou£^ the/ be not liable to HidJ..
Dcfifiitloa of The (bte of marriage necefiary to mduce lapidation, requires that
mnS'ge ^ the whoremongcr be of found underftanding and nwture age, and a
Wb a/HaLl. Mujfulman^ free, and who has confununated in a lawful iparriage
terer to bpt- ^i^ith a woman at a time when ihe alfo is iane, ixtc^ adult, and a Muf-^
Jlima. This is the definition of Hinrrg^ and^^ Toofaf. Accord*
ing to Mohammed and Sbafei the ftate of marriage in queAion requires
(imply that the whoremonger hcfr€c^ and a Muffulmm^ and one
who has confummated in a lawful marriage with a woman of the
iame defcription. It is to be confidercd, however, that fanity of in*
tclicd and maturity of age are conditional to the receiving of punifli*
mcnt, fmce without thefe men are incapable of reading or under*
Aanding the ordixiances of the law : and the other requi(kes, befides
thefe two, are made conditions in order that the fin may appear in its
grcatcd magnitude, from the confideration of the magnitude of tho(e
bleflings under which it is committed, as ingratitude for the bleflings
of Providence is greatcft, and moft atrocious, when thofe blefilngs are
enjoyed in the higheft degree; now the particulars aforefaid, namely,
the Mujfulman faith, and freedom, and the enjoyment of a woman
in a lawful marriage, are among the greateft ble/Iings of life, where*
fore lapidation on account of whoredom is^ordained in cafes where all
thefe circumftances exift ; and hence lapidation is enjoined when thefe
conditions exifl: contrary to the fuperiofity derived from the other
gifts of nature or of fortune, fuch 2& family^ learnings capacity^ beauty^
and wealthy which are not conditions, becaufe the law has no regard
to thofe circumflances, and alfb, becaufe thofe which have been fhted
are alone fufiicient to confHtute the magnitude of the fin of whore*
dom, fo as to fubjcd the offender to lapidation, fince, by virtue of
freedom a man is enabled to contraft himfelf in a lawful marriage,
and by virtue of a lawful marriage he is enabled lawfully to indulge
his
Chap.L PUNrSKMENTS. J5
hb carnal appetite, and by fuch indulgence to allay his paffions ; and
by virtue of bang a Mujuhnm^ he. is. enabled to marry a Mufflima%
which fixes and confirms the belief of &e prohibition of whoredom to
him ; all thefe things, therefore^ particularly forbid and inhibit a-maa
from the'commiffion of whoredom; and a fin is great in proportion
to the force. of the inhibitions under which it is committed. — ^The
fed oiSbrfei differ from our doctors with refpeft to that part of the
propofition which aflerts that the profeifion of the Muffidnum faith
is 1 requifite condition : and there is alfo a record from JUhm Toofiffto
the fiime efie&. Their argument is, that in the time of the prophet
a Jew committed whoredom with a Jrwe/jt and the prophet ordered
them both to be ftoned :— but to this our doAors rgply that the pro*
phet pailed that fentence in conformity to the Tawree/^ or Jewijh
law, which has fince been fuperfeded by the Muffidman law ; and
the declaration of the prophet, " Whofoiver is not a true believer
" Jball not be regarded as married^ ^^ is a confirmation of this* The
confummationnows mentioned as a condition is underftood in the
conjundlion having taken place fo far as to require the prefcribed ab-
lutions ; and as it is a condition eflential to fuch a marriage as induces
lapidation, that the uwmair, at the time.of confummation, be of the
fame defcription with the man^ in the points oifanity^ maturity^ free-'
dom^ and profefiion cftht/aitb^ it follows that if a man were to con*
fummate with a wife who is an i^ot^ an infant ^ zjloi/e, or an in/id^/^
be b not confidered as married in thb fcnfe, fince on account of thefe
drcumfhnces the advantages of the matrimonial enjoyment are in-
complete ; becauie a man has a natural averfion to confuounate with
a bmatick woman ;, and he can have but little gratification with one
under age^ wnere defire is not reciprocal; and in the fame manner^,
heiias not a ftrong defire to confuounate with zjlave^ as in that cafe
his children txtfim^e^bern \ and fb alfb^ the enjoyment of a wife who i$.
an infidel afG>rds the lefs fatisfaOion, becaufe of the difference of reli-
•Anki<f%i«i tlttis»inmied|iiiiderthefiiicuiiiftai^
gious
i6 PUNISHMENTS. Book VIL
gious principles ; in all thefe cafes^ thereforet the advantage of the
carnal enjoyment is defective, whenoe the hufl>and of (uch woman
does not, by confummation, become a Mahfm^ or married roan, in*
that fenfe which induces lapidation. — And the rule is the fame where
the huftand is an ijioti^zn infant^ zjlave^ or an infidel^ and his wife
fone^ adults and a MuJJlima* — Abco Toofafh^ Aiid that where the wife
is an iofidelt her hu(band, being a Mujfulman^ by confummating his
inarriage with her^ becomes as a marrttd man^ but in reply to this,
befides what has been above advanced, it is to be remarked that the
prophet has declared, *• A Mussulman // not rendered a married man
" by connexion with a Christian, nor is a freeman rendered mai^^
•* ried by connexion with a wife who is a slave ; nor a slave by con^
*' nexion with a wife who //FREe/V
tfw'mi and It is not lawful to unite the punilliments offoning ^ndjcourging
jKHSeiinitedi ill the (ame perfbn, becaufe the prophet has left no precedent of the
kind; and alfo, becaufe if they were to be united, the Jcourging
wQuld be ufelefs, fince the defign of correction is a warning from
vice, and this warning is etfcfled by lapidation in rcfpcft only to
others than the perfon fo punifhcd ; for a warning cannot be effe^ed,
with refpeft to the perfon punifhed^ after his dedruClion.
m (with fc Jf j woman guilty of whoredom be of mature age, in her punifh-
) /Mff - mewt fcourging and banijbment cannot be united. According to Sbrfet
*" ' thefe two may be united with relpeft to her by way of punifhment,— •
that is banrfhment may alfb be included in her puniHiment, — ^becaufe
the prophet has declared ^^ If a man^ being unmarried^ conuwt where^
'* dom with a woman who is of age ^ the punifhment offuch is one hun*
** dredflripes\ andhejhall be excluded from the city for the fjiace of
•• one year ^ as by his banifhment the doot isflmt againfl whoredom^ be*
•* caufe in an unfettkd fituafion a man meets with fenv female eampa-
" nions io tem/t him to commit ii^ The arguments of our doAors are
twofold ;-—FiRST9 God has declared " the whore and the
WHOREMONGER
Chap. I. PUNISHMENTS- 17
** WHOREMONOSE SHALL YB SCOURGE WITH AK KUNDRED
•*' STRIPES," from which it is evident that the fole punilhment of
fuch is one hundred ftripes, for if it were more, it would be there
mentioned, and one hundred ftripes alone would not have been de-
clared fufficient: — secondly, her banifhment ts opening the way to
the further commiflion of her crime, becaufe people are under iefs re-
fVraint when removed from the eye of ;heir friends and relations, as
thofe are the perfbns whofe cenfures they are mod in dread of: more->
over, in an unfettled fituation, and among Arangers, the necefiaries
of life are with difficulty procured, whence (he might be induced vo-
luntarily to proftitute herfelf for a fupply, which of all kinds of whore-
dom is the moft abominable ;' and the faying ot Alee that ** Banifh-
*** ment is a means of feduftion,*^ is founded on this fecond reafbn.—
As to the laying of the prophet quoted by Shcfei^ it is fupcrfedcd, as
well as the remainder of that faying, " If a Siyeeb (meaning -a man
** who has confummatcd a marriage) afterwards commti adultery with
** a Sx YEEBA, their punljhment Is one hundred fripes andlapidation ;•* —
the way in which this is fuperfeded is explained in its proper place.
In (hort, banifhment, with rcfpedl to a loofe woman, in the way cf
funlfhment^ is not lawful : but yet if the magiftrate fhould find it ad«
vi(eable, hemay banifli her for the fpace oi one year ^ or left, but this
banifhment is in the way of Tazeer or difcretlonary corredlton^ as
banifhment may in (bme cafes operate as a warning, wherefore it is
committed to the K&zee or the Im&m ; and what is recorded concern-
ing the companions, of their having banijhed ^eo^\t^ is to be regarded
in the way of T'azeer.
Itzfick perfon, being one whofe proper punifhment is lapldation^ The eiecc-
commit whoredom, he is to be ftoned, becaufe his deftruftion is due, ^^^J^*"^*^
and is therefore not to be fufpended on account of his illnefs; but if pcndedonac
he be one whofe puniflimcnt is fcourging^ the execution of it muft be ^"' "^-^^^
deferred until his recovery, left life (hould be endangered, for the fame
rea^as the limb of a fick thief is not cut off- until he be in a proper
faabit of body to endure the amputation without rilk of life.
Vol. IL D If
i8 PUNISHMENTS. BookVII.
but it if (boa Jjr a pregnant woman commit whoredom, and her punifiiment be
fr^mmmiy. lapUlottm^ the execution muft be delayed until hrr delivery, for if (he
were to be ftoned whilft pregnant, the child would be deftroyed in her
womb, and its blood is not to be taken ; and if her puniflimient be
fcourgifig^ the execution muft be deferred until (he (hall have re-
covered from her labour, as that is a fpecies of ficknefs, wherefore a
delay muft be made until her health be perfectly reftored : contrary
to a cafe djlowngj where the puniihment need not be delayed until a
perfeA recovery, fince the deby in this cafe is only with a view to
the prefervation of the child in her womb, which is feparated from
her upon the inftant of its birth. It is recorded, from Haneefa that in
fioning alfo the execution muft be delayed until the child become in-
dependent of her care, in cafe there (hould be no other per(bn to fofter
it in her ftead, becaufe by this delay the child is preferved from de-
ftruQion ; and it is moreover related that when Qbamdeta^ after her
delivery,, came before the prophet, that he might execute punifliment
upon her, be (aid to her " Go and remain until fucb time as your child
A ptegaut ** is independent rfyouy — hvi> observe, — ^If a pregnant woman be
^iatd%pra* convi£ted of whoredom upon evidence (he muft be confined in prifon
W«ir#,maft until (he be deUvered, left (he (hould abfcond ; contrary to a ca(e
ioQcd. * where a pregnant woman is convided upon her own confeffion ; for
in this ca(e (he is not to be confined, as her denial after confeflion muft
be credited, (for which reafon puni(hment is remitted in cafe of hei
denial,)vdiere(bre to imfrifon her would be ufdefs.
C H A P. n.
Of the Carnal ConjunBion which occafions Punijhmtnty
and of that which does not occafion it.
£^£^ ^ The carnal conjundlon which occafions puniftment is Zinna^ oi
"' ^ioreduni and this, both in its primitive fenfe» and alfo in its legal
acceptation^
Co AP. II. PUNISHMENTS. 19
acceptationy iignifies the carnal conjunftion-of a man with a woman
who is not his propeitjry cither fay right of marriage or of bondage,
and in whom he has no erroneous property, becaufe Zinna is the de-
nomination of an unlawful conjun&ion oftbefexes^ and this illegality is
univerially underftood where fuch cohjundion takes place devoid of
proprety, either oBualot erroneoujly fuppofed. What is here (add is
the definition of whoredom with refpeA to a manz — as to the whore-
dom of a woman^ it (imply iignifies her admitting the man to commit
the fad.
ERRoi^ in carnal conjunftion is of two kinds, — ^the frjl^ Dcfa'tion of
error in refpect to the aH^ which is termed Sboobba^IJhttbdb^ or error ^^ITcoiiiiuic-
of mijconceptioni the jfowu/, error in refpeft to ihtfuijed, which ***•
is termed Shoobba-Hookmee^ [error by effeft,] or Sbaba-Milk [errone-
ous propriety.]^— The firft of theiediftindionsof error is not e{bbli(hed,
nor underAood, but with refpedl to a man who miftakcs an illegal
carnal conjunction for legale becaufe IJbtib&b fignifies the man having
carnal intercourfe with a woman, under the luppofition of the fame
being lawful to him, in con(equence of his fuppollng fomething other
than that which is necefiary to conftitute legality as affording an ar-
gument of fuch legality ; it is therefore necei&ry that this miftake
ihould have operated in his mind in cfk-der to eftablifh IJbtibab^ or mif-
conception ; atid hence this fpecies of error is not underftood, except
in the cafe of a perfbn who is under fuch mifapprelienfion. — ^The
T^co/f ^ ipecies of error .is eflaUiflied, where the argument of the lega-
lity of carnal conjunction exifts in itfelf, but yet praAice cannot take
place upon it, becaufe of /bme obftacle ; and this does not depend
upon the apprehenfion or belief of the perfon who commits the un-
lawful z& • whence this fpecies of error is regarded in refpeCt to aU
men, that is to fay, men who fo conceive, and alfo thofe who do
«o^' — And punifliment drops in coniequence of the exigence of either
cftheie two ipecies of error, on account of a well-known tradition*
D 2
,a PUNISHMENTS- BookVIL
Patcfieise is Jj^ a cafc of cnoT of xhtfeccnd fpecies, the parentage of the diiid
acai^ofcffor IS effaibliflied in the man who has had fuch connexion, if he clain
w dl«>^, fuch child ; but in a cafc of error of thcjlr/l fpecies, the parentage of
bat 90C m a the child IS not to be efiabliflied in the man^ notwithftanding his
withicTpeaio clainit— -becau^ in a cafe where the error is ofihcjlrfi fpecies the
^ ^" z& of generation is f^ivc wboredomr. although puniflimeht be not in*
' curredy on account of a circumftance which has reference to the man
committing fuch aA^ (namely, that of the illegality of the a£k being
mifconcdved by him, according to his apprehenfion of it ;) but the
ad of generation, in a cafe of error of thcJicanJ fpecies, is not fofuht
£&E0» m refpeft to the aa exlfls in eight fcveral fituations^
namely,, with—
I. the female flave of a man^s mother ^-^^
IL the female flave of his^ift^r ; —
III. the female flave of his w^e ; —
IV. a wife repudiated by three divorces, who is in her Edit\ —
V* a wife completely divorced foe a compenfation, and in her
E£ti
VL an Am-Walid'^ -who is in her £i£r after emancipation with
re^)e& to her mafler;
VIL the female flave of a mafler, with refpeft to hb male (lave ^
VIIL a female flave^ delivered as a pledge, with refpeA to the
receiver of fuch pledge, (according to the RawfyetSa-
beeb in treating of punifhment ;)— «nd it is to be obferved,
tliat a borrower^ in thb point, ibnds in the £une pre-
dicament with the rcceher ffa fkt^e :-~
•ad tlim is — *and in all thole fituations the perfbn. who has carnal conjunftion
^ P*~^ does not incur punifhment^ provided he dedaie— *«-I conceived that
** this
Chap.IL punishments. ai
•< this woman was lawful to mc ;" — ^but if he ihould acknowledge his twmttacafc»
confciouiiiefs that the woman was unlawful U> him^ he incurs
punifliment.
Error in refpeft to thcjitifeff cxifts in fix fituations; namel/^
with—
I. the female flave of a man^s fbn ;
IL a wife completely repudiated by aa Implied divorce;
UL a female flave fidd, with reipeft to the ieller^ befbm the
delivery of her to the purchaier ;
IV. a female flave MMttboora^ — (that is, a flave ftipulated to be
pven In dower to a wife,) — ^with refpeft to the hufband,
before feizin of her being made by the wife ^
V^ a female flave held ia partncrfliip, with reipedt A> any of
the partners ;
VI. a female flave delivered in pledge, with reipeft to the re--
ceiver of fuch pledg^according to the Book of Pawnager
«-<Lnd in all thoie iituations a peribn who has carnal connexion does
not mcur pvoiifliment, even though he Ihould confels his coniciouf-*
neis of fuch woman being unlawful to him.
AccoRDrKO to Haneefa^ a contract: of marriage is a fufficienfi Acontnaof
ground of error, although the illegality of fuch marriage be uqiver* ^mtfnSS^
My allowed, and the man entering into fuch contrad be ienfible of 52*jwiw«.
this illegality. With our other doctors, on the contrary, a contrail c4V !%«/.
of marriage is not admitted as a legal ground of error, if the man be
ienfible of the illegality.— The tSt& of this di&rence of opbbn ap*
pears in a cafe where a xnan ittarries a woman related to him withia
the prohibited degrees,— -as (hall be hereafter explained.^
If a man pronounce three divorces upon his wife,, and afterwards Coanexlba
1 have '''^ • ^
ftiflioMnc.
42 PUNISHMENTS- Book VIL
Mud lie ^^^ carnal connexion with her during her EiSt^ and acknowledge
fofe the ex- Kit confcioufnfis of her being unlawful to him, punifhment is in«
!ie^£!^)oc- currcd, becaufe here pofleflion by marriage^ which legalizes genera-
Sft!!!!.^' ^*^"' ^^^ '^^^ totally annihilated, j^d hence there can be no error, as
the text in tht Koran (hews that legality is deftroyed in this cafe; and
all the do£lors coincide hi this opinion. But if he were to declare
that ^^ he conceived, or fuppofed, (he was dill lawful to him,** pu-
nifiiment is not incurred, becaufe his apprehenfion is to be regarded,
fince the efFefts of marriage ftill remain, with refped to the eftablifh-
ment of the parentage of children, and the matrimonial reftraint, and
alimony ; (for if the woman (hould bear a child, at any period within
two years from the date of divorce, the parentage of fuch child
is cftabliflied in the huiband, and flie remains under the reftiatnt
to which (he is fubjcA in marriage, and her alimony alio remains in-
cumbent upon her huiband ;) his apprehenfion, as above pleaded, is
therefore of force to prevent punifhment, on account o^ error by mif-
coficeftion. And an Am-^WoRd^ after manumiflion, and a woman in
a ftate of repudiation by Kboola^ or one divorced for a compenfation,
(who .are in their E£tf) fland in the fame predicament with a
woman cepudtated by three divorces, as their illegality is univer£illy
admitted, and certain efl^ds of marriage continue during their Edit^
as well as in- the cafe of a wife under thr^ divorces.
I
Coiinexioii Ir a man divorce his wife by imflication^ laying, ^^ You are
£i4rS • ^* dhefled^^* or " you arc at your own djfpofaU"' and (he chufe
«2^«f/«« divorcer--and he afterwards have carnal knowledge of her within the
term of Kcr E£t^ and (hould acknowledge that he knows her to be
unhwftii to him, yet punilhment is not incurred; becaufe concerning
this cafe there is a difference among the companions ; for Omar holds
that the forms above-mentioned are effedive of only a fingle divorce
reverfible ; and the lame in all exprellioiis of divorce by implication :
he alio holds the rule to be the fame, where the huiband intends three
divorces, as he nuintain» that here likewile a fingle divorce reverfible
only*
Chap.il punishments. x^
only takes place, and that the intention of three divorces is not re-
garded.
PuKiSHMENT is Hot incurred by a man having carnal connexion »» that with
with the feniale flave of hisy^^ or of his grand/on^ although he (hould iuVe of a >i
acknowledge his confcloufr -u of fuch female flave being unlawful to *»l'*»<^-
him, for in this cafe the txi^r is ty effeff^ fince it proceeds from an
argument founded upon the words of the prophet, who (aid to one
with whom he was converfing, ** Thou and thine are thy pa-
*• TH£R*s ;•• — and the p'on^atber is fubjed to the fame rule with
tht father^ as he is alfo z parent. The parentage alfo of the child be-
gotten in fuch carnal conjundion is eftabliihed in the father afbrefaid,
who remains refponfible to his ion for the value of the female flave.
If a perfbn have carnal connexion with the female flave of his orof^fithtr^
father^ or his tnotker^ or his wife^ and plead his conception that fuch ^, {Xm
flave was lawful to him, he does not incur punifliment ; neither is hb "*^^^j
accuier b'able to punifliment : — (but if he fliould acknowledge his cd.)
confcioufneis of the illegality, punifliment is to be inflidcd upon him,
— *and the fame rule obtains where a flave has connexioir with the
bondmaid of his mafler,) becau(e between theie there is a commu-
nity of interefls in the acquifition of profit ; and hence the man who
commits the a£l may in thofe ca(es have conceived, with refpeA to
the enjeyment^ that this fpecies of ufufruft is alfo lawful to him, —
wherefore error by mlfconception is applicable to him; but never-
thelefs this is aiJual wboredmn^ for wlhich reafb'n punifliment is not
incurred by the accufer. The law is the lame, (according to the Za^
bir Rawdyet^) if the female flave, in either of thefe cafes, were to
{dead her fuppofing that the aft was lawful, without any fuch plea
on the part of the man, — ^becaufe the carnal coajunftion of a man
and a woman being cne off /it follows that a plea of fuppofed legality,
made by eitber party, cftablifties err^r with refpeft to fotbi and
hence tht punifliment of both is abrogated.
2* PUNISHMENTS- Book VII.
Pmiihmeiitu jp a man have carnal connexion with the bondmaid of his
connexion^ brother^ OT oHm unck^ he incurs puntfliment^ although he (hould
S ?^£r P*^^ ^^*^ ^^ ^^^ conceived her to be lawful to him, becaufe between
fuch relations no community of interefl exifts. And the law is the
fame with refpefi to the female flaves of all other relations within the
prohibited degrees, excepting thofe who are related to the man within
the parental degree, (fuch as his father or his fon^) becaufe be-
tween him and thofe prohibited relations no community of iuterefl:
exifls.
CABnexioa Jp a man engage in a contraft of marriage with a woman, and
married b^ another woman be fent to him *, the female relations declaring her
noilKca^ to be the woman married to him by fuch contra£k, and he have canml
puniihaieot. communication with that woman, he does not incur any punifhment ;
but yet he muft pay the woman her dower, becaufe jlkc once pafled
a decree to this effedt ;— and he alio fubjoined, in his decree, that
the woman ihould pbferve an Edit : — moreover, the man has pro-
ceeded upon (^parent proof ^^ namely, the information of the woman's
female relations, with refped to the fubje^l of his error, (ince men
can have no perfonal knowledge of or acquaintance with their wives
prior to the matrimonial engagement ; and hence the man in this
cafe is the fame as a perfon ading under a deceptioiL And the
accufcr of this perfon does not incur the punifliment of (lander,
becaufe pofTeflion fay marriage^ reqviifite to legalize generation,
is in no reipe£k efhblilhed There is an opinion recorded from
jlboo Taofqfj that the accuier is liable to punifliment, becaufe the
carnal conjunction is to all appearance legal, with refpeCt to the man,
according to the information of the woman's female relations, and of
courfe his accufer becomes liable to puniihmenty as a decree muft be
ibunded upotx what h apparent.
* It is almoft unneceflarj to remark that, from the nature of the A/ir^Stiboi cuftom^ a
titan can nerer be fttppofed to have feen his wife until after marriage,— the iiroman being
utterly excluded from the fight of all nca except her lelatioas wisbim the frMUti4dtgrus*
If
Chap.il punishments. 25
If a man have caroal connexion wkh a woman whom he finds in
his own bed, punilhment is incurred by him, bccaule thoecan be no
error where he pailes any length of time in the company of his wife,
and thence his apprehenfion of this woman being his wife, from the
circumftance of his finding her in bed, is not regarded, fo as to pre-
vent punifhment : — the reafon of this b that iometimes a relation
of the %vife, refiding in the houfe with her, may deep upon her bed.
And the law is the &me where the man is blind^ becaufe it is always
in his power to aflc and difcover who the woman b ; and he may
alfo difcover thb by the (bund of her voice. But yet if he invite tlic
woman to the a£t, and (he confent, figni/ying that ^* (he is his
^* wife/* — ^and he copubte with her, in this cafe he does not incur
puniihment, as he is deceived by the woman^s declaration and be-
haviour.
If a man marry a woman whom it is not lawful for him to ConnexioQ
marry, and afterwards have carnal connexion with her, he does not uaaer aawi^
incur puni(hment, according to ifiw^^/i; but if he be at the time '^^"jJf'lL
aware of ittegality , he is to be corrected by a Tazeer^ or £fcretipnary iadme p«.
correction. The two difciplcs and Sh(^et have laid that he is Ibbte "*"*"^
to punilhment, when he marnes the woman, being aware of the
illegality, becaufe, as the contract has not been executed in regard to
its proper fubgeft, it is of courfe void ; for* here the woman b not a
proper lubjeA of marriage, becaufe the proper fubjed of marrbge, or
of any other deed, is a thuig which is a proper fubje£k of the effeBs
of fuch deed ; now one of the effedls of marriage b the legalizing of
generation ; but as the woman is among thole who are prohibited to
the man, the coutrad of marriage with her b conlequently nugatofy,
in the lame manner as a cr>utra<ft of marriage between man and umi .
The argument oSHaneefa b that the con^afl: hastaken place in regard
to its proper fubjecl, as the woman is a proper fubjeft of marriage, be-
caufe the proper fubjeft of any deed is a thing'which admits of the
ends intend(*d being obtained from It; now the end of marriage is
Vol. II. E the
16 PUNISHMENTS. Book VIL
the procreation of children^ and to this every daughter of Adam is
competent ; the cafe therefore admits of the contra^ being engaged
in with refpeft to all its effe^ts^ and of all its effeds being obtained
from it ; but on account of the prohibition in the iacred text, the
legalization of generation b not obtained ; and fuch being the ca(e
error is occafioned, as error is a thing which is the tspfearancs of a
proof, and not t\it fubjiance of one ; and as, in the preient die, the
man has perpetrated an oftence for which the Jiated puntfliment, or
HidJ^ is not appointed, Ta^^^'^s or difcretionary correftion^^ muft be
inflidted*
AAs of Ufcl- If a man commit any aft of lafcivioufiiefs with a firange woman
to be coma- fuch as 7aJt6fee% *, he is to be corre£):ed by Tazeer^ fince fuch a£b
tdbjrmtri jy^ aiegal and forbidden by the word of Goo : but a dated punifliment
is not appointed for them; Tazccr mufl therefore be inflifted upon
that perfon«
tad To Bke- Ip St man copulate with a ftrange wocnan in ano^ — (that is, commit
emmittl^' the afi of fodony with her,) there is no ftated punifliment for him,
%rtthaftfiBtt according to Haneefa\ but he b to be correded hy Matter. The
*^' JamaSagbeer dire£ts an aggravation of the ^azeer or corredion in
this cafe, and fays that the offender muft be kept in a place of con*
finement until he declare his repentance. The two dilciples have
iaid that as this a£t refembles whoredom, the perTon committing it is
fubjeft to the ftated punifliment for whoredom; and there is one
opinion of Sbrfei to this eSe£t ; but another opinion of his is that
thfs parties ihould be put to death, of whatever defcription they
maybe, — that is, whether they be marm^or not, — ^becaufe the prophet
has. laid •• 5/fly ioth the active and the passive,** (or, accocdbg
to another tradition, ** Stone both the AO^vr and t be st/BjBCT.**)—
The argument of the two difciples is that the z6l in quefUon has the
♦ Pimmfrkins intirfeBmra.
property
\
Chap- U. PUNISHMENTS. xy
property of whoredom, as that is defined to be ^^ an a£l of lufl com-
*v nutted in that which is the obje& of the pafliony completely, and
'^ under fuch circumftances as to be purely unlawful, and where the
^* deiign is the injedion of Semcn.^* Haneefa^ on the other hand,
argues that this conjun^on is not aGual wbore^m^ becaule the com-
panions of the prophet have difagreed conccniiiig their decrees upon
it, (oit ibme of them have faid that ofienders of this kind fhould be
bumt^ iome, that they fhould be buried alroe^ others, that they
ihould be cafi headlong from fome high flace^ fuch as the top of a
boufe^ and then ht Jioned to deaths — and fb forth: moreover, the
conjunction in queftion ha^ not the property of whoredom, as it
is not the means of producing ofispring, (b as (like wboredoui) to
occafion any default in birth or confufion In genealogy; — beHdes,
this fpecies of carnal intercourfe is of lefs frequent occurrence than
fvlnfredoin^ becaufc the defire for it cxiAs only on the part of the
a3rue and not of the pajjive^ whereas in whoredom the defire exifts
equally on bpth fides. As to the tradition cited by SbafeU it probably
relates to a cafe where an extraordinary and exemplary punifhment is
requifite ; or where the perpetrator inculcates and infifls upon the law*
fulnefsof thea£t.
If a man commit beJllalUy he does not Incur Hidd^ or Aated pu* uAh^UU^.
nifhment, as this aft has not the properties, of u;i6err^;;f, for whore*
dom is a hdnous oflence, as bemg a complete aft of lui^ to wh^
men feel a natural propenfity: but this definition does not apply to
copulation with ir^^x, which is abhorred fay an undepraved mind,
(whence it is not held incumbent to cover or conceal the gqiitals of
brutes;) and men can liave no reafbn for deiiring carnal cofmexioA
with brutes^ but from the mod vitiated app^e, and the utmoft de*
P^vity of ientiment:-—ii/^ therefore is not incurred by this perim:
but he is to be punifhed by a difcretionary corrcftion, for the realons
already fpecified. It is recorded, alfo, that the beaft ihould be flainan/
burnt : this, however, is only where the animal is not of an eatefkk
fpecies ; but if it be of the eatable fpecies it is to be eaten^ (accorAog
E a to
a8 PUNISHMENTS- Book VII.
loMo9 HMetfu^) and not butni. Aboo Ti^hdds that it (hould be
confumcd with fire in both cafes, the perpetrator (where it belongi
to another perfon) remaining refponfible to the owner for the valuer
but yet the burning of it is not obftduttly Incumbtntx nor is it to be
burnt for anj other rcalbn than as, by this means, ail recoUedion of
fo vile a iRsift may be oblitemted, and the perpetrator fiiidded from the
difgrace wiiich would attach to him in cafe of the animal remaining
alive.
Puniihrnent & Ip a Mttffiilman bc guilty of whoredom in a foreign country, or in
by commit* the territory of the rebels, and afterwards return into a MuJfubnan^saXt^
dom bi^Tft. P^^i^ni«^t is not to bc xnflifikcd upon him, on the plea that j^ man, in em-
fcigA cooa- bracing the Mujfulman faith, binds hlmfelf tp all the obligations thereof,
^' wherever lie may be. The arguments of our doflors. on this occafion
arc'twofold ;— first, the piophct has faid ** puniflimcnt is Aot to be
^« infliftcd in a foreign land ;" — secondly, the defign of the inftitu-
tion of puniftiment is that it may operate as a prevention or warning ^
now the Mujfulman magiftrate has no authority in a foreign country^
wherefore if punifhment were inAituted upon a perfon committing
whoredom In a foreign country, yet the in(Uturion would be ufdefs ;
for the ufe of the inftitution is that puniihment may be executed ;.
and as the magiftrate has no authority in a foreign country, the exe^
cutioA Is impoflitle \ whence it appears that the commiiiion of whore«
dom in a foreign country does not occafion puniihment there i and if
this peribn (hould afterwards come from the foreign territory into a
Muffulman Aate, puntihmetit cannot be executed upon him, becauie
as his whoredom did not occafion puniihment at the time of its being
committed, it will flo« ifiirwds occafion it.
PimUbmest The pcrlbn to whom the authority of inflicting punifhment ofB-
il^d h^^ ciaUy appertains, (fuch as the Kbilif^ for the time being, or the
mif ^H^' governor of Egypt,) when he carries forth his troops upon an expe«
kis camp. dition^ is at liberty to inflid puni(hment upon any peribn who may be
guilty
Chap- U. PUNISHMENTS. 29
guilty of whoredom within his campy (ince the perpetrator of the
offence is under his immediate authority; but chiefs or commanders
of an inferior degree are not at liberty to inflift punilhment upon per*
fons guilty of whoredom within their campy becaufe they are not
invefted with authority to inflift punifliment*.
If an alien come into a Muffiilmdn (bte under a proCeAiony and Cafe of
there commit whoredom with a Zimmeea^ or female infidel fubje^fcy— ]S^^i!^
or if a Zhnmee or mob infidel fubje£fc fo commit whoredom with a ^?w-^!^
female alien, punifliment is to be inflided upon the InfiJel fubjtS^ (ac- mLi "
cording to Hmeefd) but not upon the oEm. This alio is the opinion
Kit Mohammed vf'tAi refpeft to an infidel fubjeCt, where he is guilty of
whoredom with a female alien; but if an aHen be guilty of whore-*
dom with a female infidel futjeftf in this cafe he holds that there is
no punUhment for either party. Thdre is alio an opinion recorded
from jfboo Toofaf to this effed; but he afterwards delivered Another
opinion, that punifliment is incurred by all the parties concerned,
both by the alkn^ and the femak infidel fbtjedl,— ^ahd alfb by the
male infidel fubjeft; and the female alien,— ^for he argues that an alien
under proteftion,. during the time ihaf be eonfinuea in z Muffubnan
territory, fubje£ts himielf to all the ordinances of the temporal law^
in the fame manner » an infidel fubjeft does for life, whence it is
that punifhment for (lander may be irfliQed on an alien under pro-
ttdion, and that he may alio be put to death in retaliation : contrary
topuniihment for drinking wine, as in hti belief the ufe of wine is
allowable. The argument oliHamefm and Mohamtned ia (hat a pro*
teded alien does not come mto zMkjffubnan ftateas a refident^ butis
only br6ught there t)Ccarfonally, from fome i>articular mothre, fuch
as commerce, and the like, and therefore is not to be confidti-ed as
• Meaoing/fitf, MrUdibeifigarigbtor thcAniH i»a thingof Coo
^Co be committed to inferior peribos; but every peribo who aAs u a«c
^giftrate b cnthkd toinfliA Tkauvr, or dilcrctkMiarjrconcfiioiu
one
JO PUNISHMENTS. Book VIL
one of the inhabitants of a Muffulman country? (whence it is that he
is at liberty to return into the foreign country, and alfo that if a
MuJJulmaH or an infidel fubjeft, were to murder a protcded alien, no
retaliation would be exaftcd of them ;) now a protcfted alien fubjefts
himfelf to fuch of the ordinances of the law only as he himfelf derives
an advantage from; and thofc are all fuch as refpefl: the rights of in-
dividuals; for where he is defirous of obtaining juftice for himfelf
from others, he alfo fubjoSks himfelf to juftice being exaftcd on him
hi behalf of others ; and retaliatiM • and ptmjhnient for fiandcr arc
among the rights of mdividuals, hxApimJhmentfor wbarcdam is a right
of the law. Tlie argument of MoAmmteJh that in whoredom the
man is the principal^ and the woman only the accejfaryy according to
what was before ftated ; now the prevention of punifliment in rei'peft
to the/>/w//»^/occafioas the prevention of it in refped to the a«^y,
but the prevention of punifhment with rcfpeft to the accejfary 6Qe$ not
occafion the prevention of it with refped to Xhcprindpati as in a cafe,
therefore, where a protected alicii commits whoredom with a female
infidel fubjeft, there is no punifliment for the alien, (b neither is there
any for the infidel fubje£t ; but where an infidel fubjeft commits
whoredom with a female proteAed alien, punifliment is to be infliAed
on the fubjeft, but not upon the alien ; and the reaiiflion of punifli-
ment in refpcft to the alien does not occafion its remiffion with
refpeft to the infidel fubjeA, becauie the woman is only an aceejary.^-^
Correfpondent to this is the cafe of a nun committing whoredom
with a girl who is an infant, or with a- woman who is infiuie, where
punifliment is inflidted upon tlic man, but not upon the infiuit or the
lunatick; whereas, if a woman admit a boy or an idiot to commit
whoredom with her, neither of the parties is liable to punifliment.
The argument of Haneefa is that the ad of the pcotedod alien is
.wboredofn^ becaufe he is equally with Mujfulmam called to the ob-
^ TJitt it an spptrent conCnidiaiois u'lt it fiid above that clicre It M retaliation for
Chemufdcrofaiialicii: it it Co be confidmri, however, that although a A^^^Uvm, or an
infidel rubjcOi be not liable fo letaliacionlbr the murder of an alien, yet the alien would be
h for the murder ofa A/ij^Umi^ or an infidel fiibjea.
iervancc
Cm AF. IL PUNISHMENT $• 31
lervance of certain commsinds and prohibitionSy on acciount of the
torments and chaflifements of a future ftatc, (according to the Mom*
lat^SaAeebi) although he be not called to the religious obfervaiices
of the Law; but the woman*s admitting him to commit. the fa£l is
the occafion of punifhment to her :— contrary to the cafe of the ioy
or the idiot^ for they are not called, nor under any conftraint. A
difference fimilar to this obtauis in the cafe of a man, who being
poflefied, or under the influence of ma^ck, commits adultery with a
woma(h not under fuch influence ; that is to (ay, according to Haneefa^
punifhment is infli£led ; but according to Mohammed it is not izifli£ted
on either of the parties.
Ik a boy or an idiot comnnit whoredom with a woman who is of mtndm
mature age and found judgment, (he confenting thereto, in this ca(e ^rinfinM^
there is no punifliment, ncitlier to the ioy^ to the idioty nor te the " «^^ ^^
woman ; — Zijir and SAqfei maintain that in this cafe the woman in-
curs punifhment; and there is alfo one tradition oi Aboo Toofdf to the
(ame efFefi. * But if a man who is of mature age and found judgment
commit whoredom with a girl who is an idiot or an infant, capable of
copulation, in fuch cafe punifhment' is incurred by the man alone,
according to all the doctors. The argument of Ziffer is that a plea
on the part of the vwman does not occafion the remiflion of punifli-
ment with refpeft to tlie man; and in the fame manner, a plea on
the part of the man does not occafion punifliment to be remitted with
reipeA to the woman; becaufe each party is refponfible only for their
own ad. The argument of our.do£kors is that the aft of whoredom
proceeds from the man, the woman being no more than merely the
fntfeff of it, and hence it is that the man is denominated by the
mOhe term in copulation or whoredom and the woman by the
• [In the erigf imI] **Tlieiiiankdtiioiniiittedthe K^oia^ or Zmm^ ftnd the weooa
the MnuimMy or Mmmua. The two firft are the afihre jitrtiripiet meaning the i^fttham'
and thetwtir<iwiiy#r| thetwofocondafcthefelenmcxpfeflfid in the feminine parddple
fijfhi* ItisnoeeafyloconffydKMfeccitandnwaningoCfcchpaflifefinanytr^^
Objection.
3% PUNISHMENTS- Book VII.
Objection.— The woniaii is alfo termed Zd$uca^^ as appears ia
the Koran.
Reply. — ^The woman is termed Zdneea by a metonymical figure,
which (bmetimes ufes the aHive participle for the fajftve ; or it may
on this occafion be employed becauie the woman is the primary cau(c
of the a£t of whoredom, by her admitting the man to the commif&on
of it. Punifhment, with refpeft to a woman^ therefore, depends upon
the circumftance of her admitting a man to commit the a£t of whora-
doni with her ; but the adfc of a boy is not whoredom^ as whoredom is
an aft proceeding from a perfon who has been called upon to refrain
from it, and the perpetrator of which is an offender, by his com-
miflion of it ; and as the aft of a boy is not of this nature, it follows
that punifhment is not incurred by his aft.
Whoitdom If a fovereign prince (hould compel a man to commit whoredom,
SPIJ*^2Jj»/. there is no punifhment mcurred by that man. — Aboo Haneefa had held
^1^^^ a prior opinion, that the man is liable to punifhment, (and fiich is the
si&mcBc doftrine oiZiffer) — ^becaufe a man cannot commit the aft of whore-
dom unlefs the virile member be properly dlftended, which diftention
is a token of defire on his part: — compulfion^ therefore, cannot be
proved with refpeft to him. The reafon for the more recent opinion
is that ^the means of Compulfion, (namely, the power of the (bvereign^)
exifts both aftually and apparently; and the diflention of the virile
member is no certain proof of defire, fince it fomctimes occurs inde-
pendant of any operation of the mind, as in feep^ for inftance ; this
circumftance, therefore, is of no weight in competition with a faft
which admits of alludl froof^ namely, the comfulfion. But if any
other perfon than the fovereign fhould compel a man to commit
whoredom, the nun-fhereby incurs punifhment according to Haneefa.
The two difciples have faid that no punifhment is incurred in this
cafe, becaufe (he compulfion which is the obflruftioUftp the punifh-
• The la^^aa, part. ^tqqi.Zmm.
mcnt
Chap 11/ PUN I S H M E NTS. 33
meat in the former cafes may alfo proceed from o/iers than the iove-
reign: <but Haneefa argues that this fpecies of compulfion cannot be
fiippofed to proceed from any except the Jcvereign ; — ^becaufe no other
peribn is poflefled of the means of fuch compuUion, (ince the fbve-
reign is enabled to repel it in all inferior perlbns, as the fbvereign
authority is inftituted by the law for the purpofe of repelling tyranny ; —
and alio, becaufe all others ftand in awe of the fbvereignt ^ud iience
nc fuch compulfion can proceed from them. It is to be remarked
that the learned in the law impute this difference of opinion between
Haneefa ^nd the two difciples to the difference of the times in which
they lived, — ^for in the time of Haneefa others than the fbvereign were
not pofiefied of any power which it was not in the fovereign^s power
to repel ; but in the time of the^two difciples every petty ruler pol-
fefled a power independant of the fovereign, and hence the compulfion
o( ethers than the fovereign af!brded (in thofe times) a ground of
doubt fufiicient to prevent punifhment.
If a man make a confeffion four times, at four different appear- Cafe of one
ances, [before the Kdzee^ " that he has committed whoredom with io*f/fl^^
** fuch a woman,** and the woman fhould thereupon declare, ** that ^^^■'^^•c^
** he had married her,**— Or, if a woman fhould thus make confeffion pleading a
that •* fuch a man had committed whoredon\with her,** and the man "'•'^'^*
ihould plead that ** he had been already married to her^** — in this
cafe no punifhment falls upon either party, becaufe the plea of nur-
riage is pofiTibly true, and therefore occafions a demur ; but the man
owes the woman a dower, fince«the enjoyment of the woman*s peiw
(on cannot be admitted gratuitoujly^ as a Woman*s perfbn is an object
ofrelpe£t.
If a man commit whoredom with the fetiuile flave of another, to Cafe of
fuch a degree as that the faid female flave dies, the man incurs two J|JjJh*ti2rf«.
penalties, — p«, the punifhment of whoredom, and the other ^ the "**Kf*^^.
payment of the vslluc of fuch flave to her owner, — becaufe he has dietin ooafr*
Vol. II. F here '*■"''*
^ PUNISHMENTS. Book VIL
here committed two offences, whoredom and murder^ and hence the
law is to be carried into execution with refpeft to both. It is recorded,
from Aboo Toofaf^zt punifliment is not incurred by the man becaufe
the obligation of refponlibility, which lies upon him, is a cau(e of his
property in the flave ; and the occurrence of a caufe of property, be*
fore punifhment has taken place, prevents the infliftion of it, (as
where, a thief, for inftance, purchafes the property ftolen of the
proprietor before his hand is (Iruck off,) and is the fame as if a m n
were firft to commit whoredom with a female flave, and then to
purchafoher of her maAer, in which cafe he mcurs punifliment, ac-
cording to Haneefa^ but not according to jiboo Toofaf^ and fo in this
cafe likewife. Umeefa s[nd Mohammed fay that the refponiibility, in
this cafe^ b a refponfiKlity for murder^ (in the manner of the Deeyat^
orfm of bloody) which docs not occafion a right of property [over
the^orW.]
or wko |ocf Ip a man commit whoredom with the female flave of another, to
fuch a degree that (he lofes her fight, he owes the price of the (aid
flave to her owner, and punifhment drops, becaufe the flave, by the
man being thus refponfible for her value, becomes his property, and
(he is (Bll a£^ually exifling, wherefore the circum(bnce of his thus
obtaining a property in her occafions a demur fuflicient to prevent tlie
punifhment.
TM jjkir. Ir a fupreme ruler (fuch as the KhSIjf^ for the time being) com-
iSM^istl^ mit any offence puniftiable by law, fuch as whoredom^ thefu or
ttk fefiMl ^«^^^W^» ^^ ^ ^^' fubjeft to any puni(hment, (but yet if he com-
pcrT* u^ mit murder he is (ubjeA to the law of retaliation, and he is alfb ac-
countable in matters of property,) — ^becaufe punijbment is a right of
Goo, the inflidion of which is committed to the KhdJif [or othir
iupreme magiflrate,] and to none elfe ; and he cannot inflift punifh-
ment upon himfelf, as in this there is no advantage, becaufe the good
propofed in punifhment is that it may operate as* a warning to deter
• ibankind
Chap. IH. PUNISHMENTS. 35
mankind from Cm^ and this is not obtained by a perfon^s inflt^ling
puni(hment upon himfclf: contrary to the rights of the wi^/Ao/t
hich as the ]zwso( retaliation^ and of proper tyy the penalties of which
may be C3ca£led of the Kbdlif^ as the claimant of right may obtain
fatisfeaion either Jby the iaiZ/'empowering him to exaft his right
from himfclf, or by the claimant appealing for afliftancc to the col-
leQive body of the Mujfulmans. And punifliment for flander, (al-
though it be in fome (hape a right of the indhidual^yis fubjeft to the
fame rule with other punifliments which are a right of God, as the
learned have d^cLued that in the punilhment for (lander the right of
God is chiefly confidered.
Vft.
CHAP. III.
Of Evidence in Whoredom^ and of RetradUon therefromt
If witnefles bear evidence at a difhmt period * [after the perpetration IM7 » .
of the alleged offence,] wl\ere there had cxiftedno obflruftion (fuch X^^S
as their diflance from the magiftrate, and fo forth,) their teflbnony \y^^'^
is not to be credited, except iii a cr.fc otflafider. It is recorded in the cxccpc b
Jama Sagbeer^ — " If witnefles bear evidence againft any perfon, with ju^.
. ** reipe& to tiefi^ or wine^drinking^ or wboredamt after a certain pc*
'* riod of time (hall have ebpfed, fuch teftimony is not to be received ;
^* but yet the peribn fb accufed of theft is refponfible for the value of
'* the goods alleged to have been ftolen.** The principle upon which
this cafe proceeds is, that all evidence, with rcfpefb to fuch punifii-
* Arab. AAttUJm : this h the participle from TnkUlm \ hj which is underftood fuch
m £lbfice of time as fuSces to prevent puniflunent. It operates in a way fomewhat £milar
toouryf«M*#'7 HmMimu
F 2 ments
36 PUNISHMENTS. Book VU^
ments as are purely a right of God, is vitkted and rendered, void by
fuch a delay in the production of it as amounts to J'aAddim^. but with
Sbafei it is not rendered void, for he coniiders thofe puni(hments as a
right of the individual, and fuppofes evidence under this circumftance
to be the fame as confeflion inducing punifliment.; that is to fay, as .
diftancc of time [Tii^/t/rw] does not affeft the validity of confeflion,
inducing adifhiut punilhment, (o in the fame manner diftance of time
does not forbid the reception of evidence refpefting the rights of the
individual, becaufe it is apparent that the evidences fpeak truly ; and
the fame reafbn holds in fuch punifhments as are purely a right of
God. ^The argument of our doftors is that a witnefs in a penal
caufehas two things at his option, both equally laudable; the/iry?,
evidence to an offence committed againfl the laws ; — the JecanJ^ the
veiling and concealment of infirmity : — now if it be admitted that the
delay in givmg in. the evidence arofe from the charitable motive lad
mentioned, it follows that -any {ubfequent evidence could only arife
from motives of malice, or of private intereft, exciting the witnefs
thereto, in which cafe the witnefs incurs a fufpicion deftru£tiv« of
the validity of his evidence: if, on the other hand, the delay fhould
not have arifen from a wifh to cover infirmity, the perfbn ^ving evi*
dence after fuch delay mud be held unworthy of attention-, as having
for fo long a time negleded that which was incumbent upon him,
namely, ibeghmg of evidence :^-bom all which it follbws^that, after
fuch a lapfe of time as amounts to TaidJim^ the witneffes arc clearly
liable to fufpicion, either from their/i^(y, or their umuartbmefs ; and
this fufpicion impugns the crediUlity of their teftimony. This cafe
is contrary to a cafe of confejjion^ as men do not bear malice againfl
ibemfefvesi and punifhment for whoredom, or winc*drinking, or
theft, are purely a right of God, whence the retra6htion of a perfbn
who makes a confeffion inducing fuch punifhments is approved; and
for this reafon,diflanceof time in thofe inflances forbids the reception
of evidence: but punifhment for flander is a right of the individual,
as by it the fcandal is removed from the perfon accufed by the
4 flanderer;
Cjsa?.UI. punishments, 37
flanderer; (whence the retraAation of a perfon ackuovvlcdging his
liaving fiandcred another is not admitted ;)— and diftance of time, in
a cafe which regards the rights of the individual, does not impugn the
credibility of the evidence, as the witnefles here do not fall under
any fufpicion of iinifter motives from delay in tlieir te^limony, (ince
the claim of the plaintiff is conditional to the admifllon of evidence
concerning the rights of the individual, and therefore their delay in
giving evidence is to be attributed to the plaintiff not having called
for it. All this is contrary to a cafe of punifliment for tbeft^ in which
the evidence of witnefles is invalidated by delay, becaufe the witneilcs,
by their delay in bearing teflimony, becofiae fubjeiSb to fufpicion of
finifter myotives, as here the . Jaim is not a condil'ion of punifhment,
fmce the punifhment is purely a right of God, the claim being a
condition otify in matters of property; and alfb, becaufe theft is
chiefly committed during the night, at a time when the owner of the
property is afleep and unv/atchful, wherefore it is incumbent upon
the witneffes to apprife the proprietor of the theft, and to bear tefli-
mony to it; but as, in a cafe of diAance of time, or TaJtild/mf they
have riot fo borne evidence, they become criminal and unworthy of
credit from their neglefl.
TakAdim, or diflanct of time, as it prohibits the admifllon of evi- D^Lj Mx
deuce in the firfl inftance, fo it prohibits (according to our doctors) SlSISwt.^'fl
the infliction ef punifhment after the decree o(l\\c Kazee: if, there- ^<^^ ^^*
fore, the convidled perfon were to abfcond, after having received a ofii.
part of his punifhment, and, after the lapfe of a period fufiicient to
conflitute J'akaJim^ be taken and brought back, the remainder of the
correction cannot then be inflicted upon him, — becaufe the infli^ion
of the whole punifhment is included in the Ka%ee\ decree; and a part
of it (bnds in the fame predicament with the whole; and as the
Kdzee^ becaufe of difhnce of time, could not decree punifhment, fb
neither can he, in the fame circumflance, decree the inflidlion of the
remainder of the punifhment.
There
38 PUNISHMENTS. Book VII.
'-wilgrfoarf There arc various opinions among the learned refpefling the
^iicAion. limitation of the TaiMm^ or dijlance oft'mie^ now under conftderation.
In the Jama Sagbeer the limitation of it appears to be^;c months ; and
the (ame is mentioned by 7a&dvce, Hawefa does not prefcribe any
limitation, but leaves it to thcdifcretion of the magiftrate, to be deter-
mined according to the cuAoms o( each refpe£tivc age or country.
It is recorded from MoAamme J thzt he fixed the limitation of it to one
months as any lefs fpace of time falls within the deicription of ^V/*;
(and there is a record from Hantefa and Ahoo Tcofrfto the fiime ei&£l ;)
and this laft is the mod approved doctrine* where the witnefles are
not at the difhnceofa month*s journey from the Kd:se€\ but where
there is a diftance of a month*s journey between them, their teftt-
mony muft be credited, becaufe there appears on this occafion an ob«
ftru^ion to their givmg evidence, namely, their diftlnce from the
i&fcrr; and hence they are not in fuch a cafe liable to fufpicion.
The limitation of Taiddim^ in re(pe£l to the punifliment of wine*
drinking^ is alfo the fame, according to Mohammed. According to
the two £/aSrrx the limitation of it is confined to the gobg off of the
finell of the liquor, as (hall be hereafter demonftrated.
If witnefles bear evidence againft a perfon ** that he has com*
TkeevUeoce ^* mitted whoredom with a certain woman,** and tKe woman be
nei^fu^YaM ^^fent, yet punifliment muft be infli&ed on the man : but if witnefles
agiinft Mr of bear evidence againft a man that he has committed theft, and the
tiMMgiidie ' owner of the property ftolen be abfent, the hand of the accufed can*
MKen be«l. j^^j y^ ^^ ^£ ^j^^ difference between thefe two cafes is that in
theft the previous datm of the plaintiff is a neceffiiry condition to the
admiflion of evidence, but not in whoredonr; — and the owner of the
property ftolen being abfent, no claim can bd inftituted.
* Bf^fYbmeaiitalpiceoftimefoihortasnottoadiiutrfitstdcingt^
of 4r£tjr..^Thus the paymeitt of a debt is tcrincd MfijU [prompcj where it takes place
at any time within a month after it is due.
Objectiok.
CHAF-m. PUNISHMENTS. 39
Objbcvion. — ^It would appear that, ia the cafe of whoredom
alfo» puniihment ought not to be inflicted on the man, becaufe it is
poflible that if the woman were prcfent (he might advance fome plea
produftivc of a demur.
Reply, — ^This is a conclufion founded on mere conjedlure, and
therefore of no weight.
If witncffes give evidence againft a man •• th?it he has com- jj^^^
** mitted whoredom with a woman whom they dp not know," imwu.
poniflimcnt is not to be infliaed upon the man, becaufe it is poffible
that the woman may be his 4ifc, or his (lave, and this, with refpeft
to a MuffubnoH is rooft probat)le. But if a man make confei&on that
** he has committed whore^m with a woman uoknown,*' punifh-
ment muft be infli&ed on him, fince, if the woman vsrith whom he
committed the fad had been either his wife or his flave, ihe could
not have been unknown to him.
If two witneiies give evidence againft a man, that *' he has Cafcofacon
•* committed whoredom with fuch a woman, and forced her there- |h^J!^ni'.
'* to,** and two other witnefles give evidence to the lame fa£t, but
with this variation, that *' the woman was confenting,*'— ^In this
cafe, (according to Hamefn and Ziffer) punifhment drops with re-
lied to both the parties ; and fuch alfp. is the opinion of Sbafei-^
The two difciples iay that punifhment is in this cafe to be infliaed
•on the tnan alone; becaufe the varying witnefles do yet agree in this
that the man has coomiitted whoredom, which is the occaiion of
punifhment to him; for die only difference between the witnefles
b that one party of them teflifies to an additional ofiepce, (namely,
his having y«rcr«/ the woman,) which does not occaiion the remifBon
of puniihment with refpe& to him: contrary to the cafe ofa ^aoman^
with refpod to whom punifhment drops, becaufe her confent is the
condition on which her being liable to punifhoient depends^ and this
confent i$ not proved, becauic of the contradi£Uon among the wit^
nelTes..
40 PUNISHMENTS. Book VII.
uefles. The arguments of Haneefa on this point arc twofold ;—
FIRST, the evidence is contradi£lory with rcfpeft to the num^ becaufe
wlioredom is one aSI^ committed by two pcrfims^ the num and the
wonian^ — ^and as the evidence is contradictory with refpeft to the
woman J it muft be held fo with regard to the nUui likewife;—
SECONDLY^ the two witncfles who bore tc(Hmony to the conienc
of the woman zxtfiandtrtn^ and confequently their teftimony is un-
Avorthy of any credit.
Objection.— From this it would appear that punifliment for
flander is incurred by them, whereas it is not fo.
Re?ly.— Punlihment for flander cannot be infliAcdon them, .on
account of the evidence of the other two witneiigs, who have depofed
to force having been ufed by the man ; for the woman can no longer
be coafidered as fnarried^ in the fenfe which induces punifliment for
flander, fincethcdefcription of uwrr/V^ (in this itotf^ U not appli^^^
cable to a woman after flie has been enjoyed unlavfulfy^ although
flie ht forced.
Gon^tdiaini Ip two witnefles bear evidence againft a man, that "^^ he has com-
ti^Sb^in " mitted whoredom with fuch a woouut in Kwfa^^ and two others,
rttjard to tbe «« that he had committed fuch whoredom with diat woman in Bofra^^^
vents pmiiii* in.this cafe punifliment drops with refpe£l to both the man and the wo-
'■^^ man^ becaufe the circumftance alleged is the afl: of whoredom, and that
is contradiacd by the contradiaion ^ith rcfpefl to the place. The
evidence to the fad is here in both iiiftances dcfcaive, but yet the
witnefles are iiot liable to punifliment for flander, becaufe of a demur,
asthefaft oiwhoreiim^ to \xhich they hear teflimony, \% one Jingle
whoredom with relpeft to the perpetration of it, fince the whore-
monger is the iame peribn, and the whore is aifo the lame y^ticxi^ in
the evidence of the contradiAory witnefles on both fides, and there
is no difference except with refpe£b to the place in which the faA
was committed. But if witnefles contradid each other, by two
perfons bearing evidence that fuch a man .has committed whoredom
with
Chaf.III. punishments. 41
with fuch a woman in fuch a fpot of fuch a lioufc, ;uid by two
other perfbns giving evidence that the man had committed the
whoredom with that woman in another fpot of the houfe, in this
cafe punifliment is to be inflided upon that man. This is upon a
fiivourable conftruftion ^. Analogy would fugged that puniihment is
not incurred, iince there is alio in this cafe a pofitive contradidion
with reQ>e€t to the pbce in which the fz6!t was committed. But the
reafbn for a more favourable conflruflion is that a coincidence between
the teflimonies may be conceived, by fuppofing the a£k to have been
begun in Me corner of the houfe, and compleated in another comer, in
confequence of the motions of the parties ; and it is alio poffible that
the a£t may have been committed in the mtdJIle of the houfe, and a
perfbn feeing it from the front may conceive it to be performed in
they^r^^/ of the houfe, and another viewing it from the back part
may conceive it to be performed in the back part of the houfi;; and
each bears evidence according to his own conception.
If four witnefles bear evidence agamft a. man *' that he has been Evidcoc^
** guilty of whoredom with fuch a woman at fun-rife in Hmd^' (a ^S^tL^
place near Koqfa^ which is alio called the place of Abdd-HibmSn^ and ^^ contn- *
four other witnefles give evidence againft die man that ** he has p^^/L/,
*• been guilty of whoredom with fuch a woman at funrife, in ^ "** .^'
'Kookbla^^* (which is alfo a place near Koofa^) in this cafe neither the meat. """
man nor the woman are liable to punifhment for whoredom, nor are
their accufers Ibble to punifhment for Ilander. The accufed are not
liable to punifhment for whoreSom, becaufe the tefHmony of the cOn-
tradiding witnefles muft, on one part, h^falfi^ although it be im*
poflibleto afcertain on which fide of the evidence the fidfehood lies:
and the accufers are not liable to.punifhment iwJUmJer^ becaufe it is
poffible that the evidence on one fide may Ise true ; and as this poflt-
bility applies equally to both parties, punifhment for ilander cannot
be infused upon either,
• That is to Aj, wA u^ u ih$ witmJlk^ for i)* the evUcfioe be not fuffcient to
iiibjeft die pardes to punifliment, the wttneOa tre liable to puAiamcAt totJUmdir.
VouIL G If
42 1> U N I S H M E N T S. Book VIL
£Tid«ttee Ip four, witneffcs bear teftimouy againft a womatiy that ** (he has
mul'^who if ^^ committed whoredom with fuch a man,'*— and it fliould appear^
^^^dto be "P^" examination made by females employed for that purpofe, that
a«nrx/« ii the woman IS ftill a virgin^ in fuch cafe neither of the perfons thus
accufed are liable to punilhment for whoredom : nor are the accufers
liable to puiii(hment for flander, becaufe the evidence of the females
employed to examine the woman accufed is a proof which fuffices to
prevent the infli£tion of punifliment for whoredom upon the parties
accuied ; but it b not a proof fufficient to fubjeft the accufers to
punifhment for flandcr*: punifhment for whoredom, therefore, b
not infli^ed on the accufed ; nor are the accufers Uable to punifh-
ment for (lander.
iMtmj^Mi Ip four witneflesgive evidence againfl a man that ** he has com*
bearing tefii* *' mitted whoredom with fuch a woman,*' and it (hould happen that
JJ22^^ thefc witnefles are WW, or have ever been puniflied for (Under ; or
incur pttniOi- that onc of them b a flave, or has been puniflied for (lander ; in thb
flSwder. ^^ ^c witnefles are all liable to punifhment for (lander ; but the
accufed does not incur punifhment for whoredom ; becaufe, as. a
matter offro^rty cannot be determined by the evidence of fuch wit*
nefles, it is impolHble that funtjhmmt fhould be efbblifhed by it ; and
the witnefTts, where they are all blind, or have all before fuffercd
punifhment for flander,- are incapable of bearing evidence; and where
one of them is a (lave, he b totally incapable of bearing evidence;
and fg alfo of one of them who has before fuiFered punifhment for
(lander: — by their evidence, therefore, even a ^w^//ir/ whoredom b
not efhblifhed ; and hence their teftimony becomes converted into
gander % wherefore they 2xt Jlandenrs^ and punifhment for flander b
confequently incurred upon them.
?rjSjr ^^ ^^^^ witnefles bear evidence to whoredom at a time when they
• BecttiTe it is, notwichftanding, poflibfe that the aA may hare been performed upoa
the woman, althottjh not to fuch a degree as to deftroy the appearances of virginicj.
are
Chap. in. PUNISHMENTS. 43
are reprobate *, or if this charatter ihould be affixed upon diem bjr P^j^ ^
competent proofaftirthey have given evidence, they are not liable to umiJdwitii
^uniihment for flander; becaufe, although the evidence of a reprobate Kr" wSS!
perfon be defoCbive, fix>m his veracity being liable to fufpicion on ^^ to the
account of the badnefs of his charader, yet he is a competent wit- Ci'th^an^.
nefs, infbmuch that ifzKduce ifluc a decree upon the evidence of a J^«««w^«-
reprobate perfon, his decree is valid, according to our doAors. The irfm.
evidence oif reprobate perfons, therefore, goes to eftablifli a doubtful
whoredom, and they are confcquently not expofed to puniftiment
for (lander; and iince, moreover, from the defedt in their teftimony,
on account of their being reprobate, a doubt appears that whoredom
has not been committed, the accufed are therefore not liable to pmiifli**
ment for whoredom. Slnffi diflents from our opinion concerning
this ca(e, as he holds a reprobate perfon to be incapable of bdng an
evidence, and coniequently, that he ftands in the fame predicamqit as
It fewer than four perfons liear evidence to whoredom, punifli- Witneflbde.
ment for flander is applicable to them : — this tfkCt is induced, be- poiii^f!!!LiM
caufc, although their teftimony be good, yet teftimony to whoredom ^|^ ^
is ft> accounted only where it ainounts to evidence ; and the teftimony JUulidtr:
of fewer than four peribns, in a ca(e of whoredom, is not evidence, (o
as to be accounted good\ wherefore it \% flander.
If four peribns bear evidence againft a man, that <' he has been and lb aiib.
•* guilty of whoredom,^' and ikitKtaue fliould inflia punithment for ^^^^y^
whoredom upon the parties accordingly, and it ftiould afterwards ap- ^•^'*"'^-
pear that one of the witnefles is ^flaoe^ or has at any time been them^aft^.
puniOied for (Jander, punifliment is incurred by all the witnefles, as ^^L^JJ?*
the witnefles are oxi this occafion only three in number. Obferve how- but m fiac b
ever, that in this cafe no Arifh^ ox fine of damage^ is due on account ^/ ejelpt
• Arab. Fifk. It b dfewhcrc rendered miiufi \ but the term here adopted approaches,
periiaps^ nearer to the real meaning, /iytt figmfies a perfon who ncgleds decorum in his
inp and kttammr^ and tvhofe evideneei therefore, is not held to he adoiifliUe.
G a of
44 PUNISHMEN-TS. Book Vll
fitff **r^ ^^ ^"^^ flagcHation, either from the witnefles,. or from the public trea-
//M, when a furr: but if, in confequence of the evidences the per(bn accufed
Sm the pub- ^<>^^d ^^^e bccn (loned to death b)r a fenteiice of lapidationv the
lick ireifury. D^h^ OX finc of blood, IS due from the publick trcafury. This is the
do£lrineof i£i;irg/tf. iThe two difciples fay that the fine of damage
is alio due from the publick treafury in the former cafe. The com«-
piler of the Heddya remarks that this difierence of opinion obtains
where the accuf<Kl happens to be cut by the ilripes he has received.
The two difciples alfo hold that if the accufed ihould chance to dk in
confequence of the corre£kion by fcourging, the fine of blood is due
from the publick treafury ;^n oppofition to^Haneefa ; — and likewife»
that if the witneiles ihould retra^ from their evidence after the ac*
cu&d has been cut by (courgingy or died in confequence thereof, they
[the witnefles'] become refponfible for the fine oif damage in the/^y?
infhnce, or the fine of blood in thtfecond. The argument of the two
difciples is that, in confequence of the teflin\ony of the witnefles,
ilripes are to be infii£ted gencraffy^j whether they be of a cutting
nature or otherwife, fince to avoid cutting is not always in the exe->
eutioner's power; the fcourgbg, therefore, which is due in confe->
quence of the teftimony of the witnefle$> conoprehends both cutting
ftripes, and alfb flripes which do not cut, and confequently the cut«>
ting is to be referred to the tdftimony of the evidences, whence they
are refponfible forthei&me, where they retraft from their teftimony.
But where the wltnefles do not retra£fc, (that is where their evidence
is fet at nought,, not by ntraOation^ but by one of them being after-
wards difcoveredto be incom^tcnt^) the fine of blood Is due front the
publick treafury^ becaufe the a£k of the executioner is to be referred
to the KaT^e^ and. the Kazee a£ts on behalf of the community of
MuJhlmanSf wherefore the atonement for the aft faUs upon that which
if the property of all the MuJu/manSf namely, the publick treafury,
in the fame maqner as in a cafe ofwoundtf or rHaliation. The argu*
ment oiHaneefa is that as nothipg is due in confequence. of the tefti-
^ Tbatbb noCrtiUadtoanrpirticulirddMpliQneffkipc^^
fflony
CMAP.nt PUlflSHMENTS. 45
mony of the witaeiles, farther thiii funifl>ment^ (bjp which is under-
flood &cfa a fcourging.as excites pain, but fuch as evidentlj cannot
prove defini^voy lexcept through the fiuik of the flagellator, pro^
ceeding from- his careleffiieis or incapacity^) thccutting,. therefore, is
to be referred to Mm aimif and not to the Ufiinumy tf the voltnejfa :
but yet (acc9ording to the RawfyeP^SabaKy the fcourger is not made
reiponfibie, lefl: men fiiouU be deCerred £pom the infliction of puuifli«
ment, by anapprehenlioQ o£ bong made anfwerabk for the coniii>
%ueacesofit«
Lr four wibefles bear tteffimony tb an evidence given hjfovLt other The ted!-
^tneflesy agaunftaman^ of his having committed whoredom, pu- |^^^^
nifhment is not to be inflified upon die periba fb aocufed, becaufe "*^ jj"^^
evidence in fuHxirt of evidence introduces an increafe of doubt, fince ^m^wii*
wherever,, ia the recital of a faft, the channels of communf cation are '^^^^
multipUed, die doubt of it*s truth incredes in proportion ;. and there,
is in this caie nanecSeffiQrfiir confidering fStk^ficMJar/ wittiefles in
the li^t of arsgimU witneffiss^ And if the four original witnefles
ihould afterwards come and bear teffimony of themielves to- the
whorediom, in the place- where the ieeonchf^ wjtnefika had before
given dieir evidence, here alfe no pontAment is to be infiidcd on the
aocuied, becauie dieir teftimony has aktady been rgedlked in one
fliaper ia coniequenee of the rejection of the teftimony of the
ficoodary witneffis, reipeCting the fame h&, 2S die fecondary wit-
nefles aie die fubftitutes of the primary witnefles, fiom the drcum*
ftanoe of thofe havmg direfiSed* them, and dirowathc matter upon
them.. But here puniftiment for Ihnder is not to be inflided. on
^ber die ori^nai or the fecondary witne&s, becaufe both arecom*
piete in point of mmfcr, aKhoogjb puniflmient for whoredom be not
hiflified, on accounfc of a^i^/, which is fucb as fuffioes in bar of
pmiiihment for whoredom, but is not fuflicient to iiibjedt the wit-*
aeflct to pumflimcnf fer. (hnder.
4< PUNISHMENTS. BootVIL
^meA^ ne ^^ ^^^^ witncflcs givc evidence againft a man, that he has com*
traatof.^. mitted whoredom, aiid he fufierlapidation^ and caeof the witnefles
upon'tfair^ afterwards retraO, puniihment for (lander is to be laflidled upon lum
^^^» <»cttn alone, and he is alfo refponfible for one-fourth of the fine of Uood.
fer flaad(^. The reafon for mc'fourtb only of the fine of blood being due fiom
fiWefor^ow- ^^^^^ tJ^^' tbree-fourtbs of the veracity of the evidence remain, in
fourth ol the confequenceof the evidence of the three cemaining witnefles IHll conti-
' auing; by the evidence, therefore, of the witnefi who retra£b, only
om/ourtb of the veracity is affefted. — {Sbqfei (ays that the deatb of
the retracing witnefs is incurred, and not a fine upon his pnperty^
according to his tenets concerning witnefles in retaliation, as (hall be
hereafter (hewn in treating of JDy//.)— That pttni(hment for
(lander is incurred by the witnels is the optmon of our three doffcors.
Ztfftr fays that punifliment for (lander is not due, becau(e, if the dan-*
derer be confidered as the (landerer of a living perfon, his (lander is
rendered void by the iiotb of th«t perfon ; or, if he be confidered as
(he ibuiderer of a dtfunii^ the fiud defonfl has fufiS^red lapidation under
afentenee4)f thejClx^^, whence originates a demur refpeding the
propriety of puoi(hment iovjlander. The argument of our doAors is
that evidence to whoredom does not become (lander, in cou(equence
of retrafUtton, on any other account than as the evidence is thereby
cancelled; the evidence, therefore, at the time of retrafbtion, is ren«-
Aext^Jlander with refpeft to the dsadi and a perfon who (landers a
married perfon defunft is liable to punKhment for (lander. With
refpedt to what Ziffer advances, (that the defunQ has fufiered lapida-
tion tinder a fentence of the K6»ee^ which gives ti£t to a demur re«
(pedingthe proprie^vofpuniihment for (lander,) we reply, that upon
the evidence, which is the proof, being cancelled by retractation, the
decree of the Khee^ fentencing lapidation« docs not ^ve ri(e to any
demur in bar of puni(hment for dander;' wherefore puniihment for
dander is to be tnfliSed vpon him who retrafts from his teftimony :
contrary to what would be the cafe if any otber than- the retracting
perfon were to idander him who had fufi%xed lapidation, as the latter
S is
Chap. lit PUNISHMENTS, •4?
is not a Mabfan ia refpcA to aoj other pcrfon, fincc the (entence of
the Kd%ee againft the deceafed i$i with regard to that other ^ proper
and yij^.— What is now advanced regards a cafe where one of the *|^K ^ !••
witnefles retra£lS| afier lapidation ; but "if one of them were to retrad piaaboDTail •
before the execution of lapidationi after fentcnce has been paffed by Jjj ^^Sf^
the Kazee^ in this cafe punifhment for flander is to be iufli£ted on all pubUmmau
the witnefles ; and the puniflimcnt of the accufcd is remitted. This
isthedoArineofthe.two£/^r/. MoiamneJCxys that, in this cafe
alfot puniihment for flander is to be infli&ed on the retracting witnefs
alone, becaufe the evidence of the witnefles has been corroborated by
the KiMee\ fen'tence, and therefore is not cancelled except with re-
fpe£l to the retraElor alone, — ^in the fame manner as where the wit*,
nefs retrads after the execution of the fentence.— The argument of
•the two Elderi is, that the infliction of punifhment is only a fupple-
ment to the fentence of the K&%ee ; the retractation in the prefent
mftance therefore, is tlie fame in efTeCt, as if one of the .witnefles
were to retraft before the fentence had been pafled ; (for which reafbn
puniihment drops with refpeft to the accufed ;) and if one of the wit-
nefies were to retraCt previous to the Kdzce^s kvAcnct of lapidation,
puoifliment for flander would be inflicted upon all of them. Ziffer
fiiys tiiat in this cafe alfb puniihment for flander would be inflicted
on the retracting witnefs alone, because his retractation is not of ac-
count with regard, to any except hitnfelf. The. argument of our
doctors IS that the declaration of the witnclles is rzdicdWy JlanJer^ and
does not become evidence until it be ib rendered by a fentence of the
KdzeCf pafled in conformity to it ; and where this faitence has not
been pafTed, fuch declaration continues to be flander, as it radically
was ; wherefore punifhment for flander is to be inflicted upon* all of
them.
Irfiue perfbns bear evidence [to whoredom,] and one of the five <>»« of/w
retract after lapidation, no penalty whatfoever is incurred by the tnl^^dSL
witnefs fo retraCting, — ^becaufe, y^i^r witnefTes ftill remaiaiiig, the JSL'"^^.
evidence mmvtJUL
n.
does.
48 PUNISHMENTS Bo^VII.
evidence remains complete. But if^ afterwards, one of the remaining
four wztnefles ihould retrad, puniflnnent for flander k then due upon
both retradorsy and each is indebted in one*fourth of the fine of
blood. Punifliment for Hander is -due upon them, becaufe evidence
to whoredom is rendered flander by fubfequent retractation, as before
explained; and they are each itfdebted one-fourth of the fine of blood,
becaufe, by the three pcrfevering witnefies fHll remaining, three-
fourths t>f the validity of the body of evidence contmues unimpeached,
as 'the pcrfeverance of thole who remain is regarded, and not the re*
tra&ation of thofe who Jraw^hack^ (according to what is faid upon
that head in its proper place ;) and as only one/burtb of the veracity is
-deflroyed'by the retradation of .thefe two witnefies, it follows that
they remain refponfible for oneftmrtb only of the fine of blood.
WKere ju/ti^ If four witncfles give evidence of whoredom againft a man, and
^y? «£* *efe witnelTes be jufUfied by tazieeat'^, and the actfufed fufFer lapi-
wards dcfcc- dation, and it ihould afterwards appear that thofe witnefies were
of blood it idolattrsiorjlaves^ (by the purgators retraAbg their evidence of jufH«
^il^s of^ ficatiou, and declaring them to htjlavest or idolaters j) in this cafe the
<^ ^i(* fine of Uood is due from the purgators, according to Haneefa. The
two difdiples (ay that in this aUe the fine of blood falls upon the pub-
lick treafury. Some hold that this difference exifts only where the
purgators, in their retraction, declare that their juftification 6i the
witnefies had been according to the befl of their knowledge and be*
lief at that time. The argument of the two difciples is that the pur-
gators have done nothing more .than merely (peaking in conmenJatim
of the witnefies, in the ^mie manner as if they were to fpeak in
commendation of the accufed^ by teflifybg to his bebg within .the
• That b, bj accmin munber oTodMrivicad&s bearing lefttmony to fho tmf^
timfi &c. of witneffes who ar« fiviog cvidenea in any cattle, die fonner being denoiiii*
natoJ dio A/m( -iiv , or poi|iion I -te iMutiofihb nod^
Jar|e io taattiag if ^ttidber.
defcriptkMi
Chaf.III. punishments. 49
deicriptionof /i^2&i*9 in which cafe nothing is due from them, and
{o here likewile. The argument of Hanecfa is, that tcftimony of the
witnefles is not proof, nor worthy of any regard, but through the
juftjfication of the purgators; wherefore the juftification is, in reality,
the efficient caufe of the Sentence; whence the (enteuce mud be
referred and attributed thereto : contrary to their bearing tcflimony
to the Ibfin of the accufed, as that ftate b conditional to a perfon be-
ing confidered a Mabfan^ — that is, married^ under fuch circumftances
as (in cafe of whoredom) fubjed him to lapidation. It is alfo to be
cemarked that^ whether the before-mentioned juftifier (hould pro-
nounce the juftification in the proper and formal terms of evidence, —
(thus, ** We tefitfy that thefc witnefles ^xt freemen and believers'^) or
not in the formal terms of evidence,— -(as thus,—** Thefc zxtfreemen and
** believers y^) the effect is in both cafes the fame, and there is no difference
whatever between them; this, however, holds only where the pur--
^ors reftrid their juflification to iht freedom or fait b of the cvi-
dences, as above; but if they (hould &y, ** thefe witnefles are
*** ^//*f, and it fliould afterwards appear that they are flaues^ in
this ca(e the purgators are not refponfible for the fine of blood ; be-
cauie ftaoes are, in fome inflances, of the delcription of &dih:—
neither are the witnefles, in this cafe^ relponfible for the fine of
blood, as their declaration does not amount to evidence \ ; nor are
they fubjed to punifliment for flander, becaule their accuiation was
made agamft a Bving perfbuf but that perfon is now dead, and his
heirs cannot procure punifhment for (lander to be infliffced on them,
as it is not inheritable. If the purgators perfevere in their juflifica*
don, or have imknowingly borae teftimony therein, and it ihould
^ That is, Vf leflifyia| diacdM accded It marrhd^ under fiicb circttmftances cf/rv^
dm^ and fcferth, It (in cafcof whorcdoBijfyljcfls a peiibn Co hpidition,
t FetfiMS of ft^^cOaUe cbanaer, In oppoTidcMi to nfrdeM.
t BecMfetbc7ifarwiids'appev(fipomtbefCtnaatira
peccatcvidoioci*
VoL.IL H afterwards
50 PUNISHMENTS, BooKVIf.
afterwards appear that the witne(!es are of an incompetent defcription,
nothing whatever falls on the purgatori^— but in this cafe the Jlne
ff blood fidls upon the pybHc treafury.
IS^^im^ If four perfons bear teftimony of whoredom againft a man, and
Uood &Ua the Kd%ee fcntence him to be floned, and any perfon fhould flay
jH^^ ^ him, and it (hould aflewards appear that the above witnefles were in-
competent, in fuch cafe, the fine of blood falls upon the flayer, ac-
cording to a £ivourable con(lru£Uon of the la w.^— Analogy would
fuggeft, in this cafe, that retaliation is incurred, as the flbrjrer has killed
an innocent perfon without cauic: but the reafbns for a more favour-
able conJthruftbn of the law are twofold; FIRST, The JST^m/s feo-
tenceof lapidation was, in appearance, regular and valid, at the period
of flaying, and hence was eftabliflied an erroneous admiilibility of
flaughter : contrary to a cafe in which the acculed is flun before the
Kizie ifiues his decree of lapidation, as the teflimofiy of the witniefs
is not proof until then :— secoiidly^ The flayer has a£led under a
conception that the flaying t)f that man become allowable, he havin|^
a confidence in the argument of (uch permiflion, namely, the Kdxe^9
fentence of lapidatbn;' and hence it is the fame as where a perfon
flays another, fuppofmg him, from former drcumftances, to be an
enemy, in which cafe the fine of blood is incumbent upon that per-
fon, and fo here like wife. — It is to be obferved that ^he fine of Wood
thus incurred is a charge upon the ejlate of the flayer, and does not
fall upon his tribe^ becaufc it b wilful homicide^ for which the tribe
is not refponfible : and this fine of blood muft be difcharged within
three years, [after the perpetration of the fiift,] as bang due on ac*
count xX homicide. But if no perfon were in this manner to flay the
accufed^ and he fuflTer lapidation by the fentence of the KAzecy^xA it
fliould afterwards appear that the witnefles were incompetent,— the
fine of blood in this cafe falls upon the public treafuiy, bccaufe the
perfons who ftone th&accufed a^ in conformity with the order of the
Khee^ and hence their aft mud be referred to the KSxeei and as, if
the
\
Chap. III. PUNISHMENTS. 51
the KAtee were to execute the fentence upon the accuied with bh
awn banJs^ the fine of blood would fall upon the public treafury*
io al(b it £dls upon the famet where any other perfon executes fuch
(entence under the Kdzee\ authority. This ca(e is evidently con-
trary to one where the Kdzec pafies a fentence of lapidation, and
another perfon flays the accufed in a different manner, and not by
Jlcning ; for in io douig he has not afted in couforaiity to the order of
the magiflrate.
If witnefles bear evidence of whoredom againft a man, declaring Evidence to
that ** they had come to the knowledge of it by wilfully looking into ^S^^ "
** the perfon's private apartment at the time of the fad/* yet fuch ^J^^'pf
evidence is to be credited, nor is it to be rejedled on account of the dieftAbcttK.
manner in which the knowledge of the witnefles was obtained, as u^^/
their looking was allowable, in order that they might be enabled to
bear evidence ; they are therefore the fame z&fbyficians or mdwhes *•
If four witnefles bear evidence of whoredom againft a man, and The ec-
the accuied ihould plead that •** he is not a married man," and it ^^t^^^^
ihould happen that he has a wife who has brought forth a child to vofoundcd,
him, — (in other words, (hould deny the confumroation of^ his vtnt Upida-
marriage, after the eftablifhment of all the conditions of it,) he
is to be ftoned, becaule the effeft of the eftablifliment of the child's
parentage + b a confequence of his havbg had carnal, communica-
tion with his wife, (whence it is that if he were to pronounce a
divorce upon her, a divorce reverlible takes place;)— -and his being a
jEffitfnnAr^MOT is efbbliflied, on account of the aforefaid effect: and if
* To exphtn this it may be proper to remark dnt a perTon't looking into the prirate
apartment of another it an Hnlawfulttil^ which| if it was not juftified by the smihe^ would
•avalidate hit teftsmony.
*t EftaUiflied in him in virtue of his marriage.
H % the
ClOB.
5»
PUNISHMENTS. Book VII.
the wife (hoidd not have borne a childt yet if one man and two women^
as witnefles, bear teftimony to the marriage of the accuied, in this
cafe lapidation is to be inflicted upon him. Sl^qfei fays that the ac«
cufedt in this cafe^ does not fuffer lapidation ; and this his opinion is
founded on his do^lrine in the laws of evidence, that '< the teftimony
** of women b not admifCble^ excepting in cafes of fropertj^J^ — Ziffer
remarks that the circumfbnce of the accufed being a married moHj
although it appear to be only the condition of the fentence, yet is in
reality the caufe^ as rendering the of!ence more atrocious; where*
fore the fcntence mufl be referred to that circumfbnce; and this con*
ditioa being, in reality, the occdfion thereof, the evidence of wonien
cannot be admitted in it, any more than with refped to the original
oflence, namdy, ^^wboredom. Thus it is the fame as where two infi*
ddfutjeOsof theJIfi^/fTioff government teflify concerning zl^Jubmm
(lave, who has committed whoredom, that ^^his mafber had emancipated
*< him before the perpetration of the £i&,** which teftimony would
not be admitted, becaufe the IbJSn of the flave [that is, hb being a
free married man] is fo far a condition of the fentezice as to be^ in
reality, a cau/e of it. The argument of our dodors is that marriage
in a ftate of freedom is znbonourabk ibte, and is repugnant to tho
commifCon of whoredom, (as was already fiated,) wherefore this cir*
cumflance cannot be, in reality^ a caufe of the fcntence. The
teftimony, therefore, of the witnefles to the IbJUn of the accufed is
the fame as their teftimony in any other cafe than whoredom ; and
as their teftimony to his Ib/dn would in other cafes be credited, fo
alfo inacafeof tc;i6orr^: contrary to the cafe of the two in£del
futge^ls and the flave, as cited by Zifer^ becaufe there the freedom
of the flave is proved by the teftimony of chofe two witnefles : but
it is not thereby proved that the date of the flave*s freedom was ante-
cedent to the commiflion of whoredom, either becaufe a Mujubnan
denies fuch date,— or becaufe that circumftance would be injurious
to a Mujfulman. If the witnefles who teftify to Ibfln retraft, yet
they are not refponlible for the fine of blood : contrary to the do&rine
oiZiffer^ according to what was before obferved.
CHAP.
Chap IV. PUNISHMENTS- S3
C H A P- IV.
Of HiJJ Shirrub^ or the Pufiijhment for drinking Wine.
If a Muffulman drink wine, and be (eized whilft his breath yet Gcucnlnte.
fmells of the wine, or be brought before the Kdaee whilft he is yet in*
toxicated therewith, and witneiTes give evidence, that *' he has drank
*^ wine,'* puniihment for wine-drinking is to be infli£(ed upon him ;
and in the fame manner, puniflimcnt is incurred by him when he
makes confeJiM of having drank wine, whilft his breath yet retains the
fmcU ; becaufe the offence of wine-drinking is proved upon him, and
T^iMiif, or Sftanct of time* ^ does not appear, fmce the flavour of the
wine ftih remains. This doctrine is originally founded upona precept
of the prophet, " Whoever drinks ofwine^ let bim fuffer correhion by
•* Jcwrging^ as often as be drinks tbereof^
If a man make confeflion of having drank wine, after the fmell Pani Ament is
has ceafed, in this cafe puniihment is not to be inflifted upon him, i!r«*2!fcd?
according to the two Elders. Imam Mohammed maintains that it is to ^"^^ ^
be infliftcd. The fame dirfcrence of opinion obtains in a cafe where «»ie'aiSr
witncffes bear evidence againft a man that •* he has drank wine*' after Jw/'cSf i ^
the fmell has ceaied. The reaibn of this diverfity of opinion is that
Taiddim^ or lapfc.of time, forbids the reception of evidence in a cafe
of wine-drinking, according to all the dodlors : but Mohammed fixts
the limitation ofTakddim^ in wine-drinking, to a certain* time, namely,
one months (according to the moft approved authorities,) he conceiv-
ing an analogy between this, and a eafe of whoredom^ becaulc delay
is cftabliOied by lajfe of time, and not by the cea/lng of a /mil i and
* See the preceding Chapter; p. 35.
^ the
54 PUNISHMENTS. Book VII.
the extdencc or m/i-exifteiice of a fmeil is of do weight, as there arc
other thmgs the flavour of which refcmblcs that of wine. According
to the two Elders,^ on the contrary, T'akadim is eflabliflied by tlie
nonexiflence or departure of the Imcll, for two reafons ; — first, a
decree of Abdoola Ibn Majfaodj who, when certain peribns brought
before him a man charged with drinking wine, directed that *• they
*• (hould examine his breath, and that, if any flavour of wine were dif-
** covered, punifhment (hould thenbeinflided upon him ;•* secondly,
the exiiVence of the effect, (namely the^m^//,) is an irrefragable proof
of wine having been lately drank. And as to what Mobarmncd zA-
vances, that ** there are other things the flavour of which refembles
•• that of wine," it may be replied that the difference between the
fmcU of wine, and other articles, may be eafily diftinguiflied by one
who is poflcflcd of judgment and difcernment, nor can any but igno-
rant peribns be doubtful concerning it. Thus, according to Mobamned^
CONFESSION of winc-drinking is not rendered inefFeftual by diftancc
of time, in the fame manner as (according to him) confeflion of
tvboredwi is not rendered ineffeftual by diftance of time, agreeably to
what was before advanced : — with the two Elders^ on the contrary, —
punifhment for wine-drinking is not to be infliAed but on the con-
dition that the fmell dill remain, becaufe Ibn Majfaod ilipulated that
condition, as before (lated^
imfcTs this be If witnefles feize a drinker of wine * at a time when he is intoxi-
imavoi^bhr ^^^^^^ ^^ whilft he ftill retains the fmell of the liquor, and carry
^«y. »« him to a city where there is a KAzee^ and in the mean time the flavour
McyMcoihe or the intoxication Ihould ceafe, before they arrive at the (eat of
/caiofjuftice. j^f^j^^^ y^^ \^^ ^j^jj ^afe punifhment for wine-drinking is to be inflifted
upon that perfon, according to all our do£lors, becaufe there is an
cxeufe for the delay, analogous to that which is created by diflarice
* This caTc fuppofcs his being fcized in fome remote place, at a diftance firooi the feat
ofjufticc.
of
L
Chap. IV. P U NM S H M E N T S. 55
of place in a charge of'Vi^borcJomi and the wltncflcs are not fufpc£lcd
where fuch excufe exxlls.
If a peribn be intoxicated by drinking Na^r»*, puniihment is in- Pumflimem is
currcd by him, becaufe it is related ofOmer that he decreed punilh- *JrinS^**^
mcnt for wine-drinking upon a wild jirab^ who was intoxicated by -W«^^«-
drinking that liquor. — (The punifhment for drunkennefs^ and the
degree of Icourging in the punifhment for wme-drinking, fhall be
hereafter explained.)
If the fmell of wine be difcovcrcd upon a perfon, or he (hould The jmtt
vomit wine, yet if witneflcs have not aclually yJr;/ him drinAmglt^ ruffice^r"*^'
puniOiment is not incurred, bccaufe the fmell alone leads but to a ^ov*^^"^*^"*.
* , without •*»-
very uncertain conclulion, as this appearance may proceed cither demct:
from the perfon having drank wine, or from his having fat among
wine-drinkers, from whom he may have contracted the fmell ; —
and it is alfo poflible that wine may have been adminil^ered'to him by
Jorcc^ or menaces^ in which cafe no punifhment is incurred.
Punishment for wine-drinking is not incurred by intoxication nor inuxtcn.
alone, unlefs it be known that the perfon has been intoxicated by the ^iJnlJlJ^*^^^*
voluntary drinking - of tc;/»^, or of Naieez^ becaufe men are fbme- proceed from
times inebriated by the ufe of articles which are permitted, fuch as
the juice oi Henbane^ or fnaris milk ; and men may alfo be fbmetimes
ampelied to drink wine, which is not a punifliable offence, when
thus committed by cmnfulfion.
Punishment is not to be inflifted upon a wine-drinker, whilfl Puninnneat
he is intoxicated, nor until his intoxication ihall have ceafed, in order J^^J ^S^"'
that the end thereof (namely determent) may be obtained. iwi%xUmi»m.
• A rcrmented liquor made by fleeping iau%^ reifins^ Jcc. in hot \v«tcr. It Is dc-
tuSbei partictilarljr ia another place.
The
56 PUNISHMENTS. Book VIL
Paaiaimcnc The puniflimcnt of a free perfont for drinking wine or other in-
drmkias toa toxicatiug liquor, is eighty Jlripcs^ on the authority of all the compa*
■f^rl^SpeJp nions; and thofc eighty ftripes arc to be inflicted in every refpe£l
under the iame rules and re(hi<Sltons as in the cafe of whoredom, ac-
cording to what is' mentioned under that head : and (according to
the Raw&ytt Majhboor^) the wine-drinker muft be dripped naked to
receive his punifhnAent.* It is recorded from Mabommed that the of-
fender mud JM/ be ftripped, as nothing concerning the punifliment for
wine-drinking occurs in the facred writings, wherefore it is expe-
dient, for the fake of lenity, that a wine-drinker be not dripped to
receive corre&ion. The reafbn for what is recorded in the Rawfyei
Majbboor is that one kind of lenity is already (hewn in the number of
dripes prefcribed, thofe in whoredom being mu bufub-ed^ whereas in
wine-drinking there are only eigbty ; hence it b not requifite that a
fccond fort of lenity be (hewn in tbe mode of infliction.
and, to a 1^ the drinker of wine be a (lave, male or female, the punt(hment
§^. for wine-drinking, with rcfpe£k to fuch, ts/orty dripes only, becaufe
the date of bondage induces only baif puni(hment, as has been re-
peatedly mentioned.
Conle(Coa If a pcrfoQ make confcffion to the drinking of wine, or any other
SlacS "^^ intoxicating liquor, and afterwards rctraft from luch confe(rion, pu-
niflunent is not to be inflided upon him, as the puni(hment of wine-
drinking is purely a right of God.
Thaoflfeaceb WiNE-DRiHKiNG is provcd on the tedimony of two witnefles ;
SS[^'^ and alfo by confefTion once made. It is recorded from jlioo Toofrf^
J^^' that two confe(fions are requifite. But it Is to be obferved that the
evidence of women againd men is not admKfible in wine-driuking,
becaufe the evidence ^f females is liable to variation, and they may
be alfo fnQ>efted of abfence of xnindt or forgetfubief&
The
Chap. IV. PUNISHMENTS,
57
The degree of intoxication which occafions pumfhment amounts De^oftn
toxicaopn re-
to this,«— that the perfbn (o intoxicated be not able to diftinguifli what oaired to in.
is /aid to him in any (hape ;— nor to know a fnan from a woman. The mlSic.'*""**'
compiler of the Heddya obferves that this is the dodlriqe of Hanee/a.
The two difciples have iitid that the degree of drunkennefs which
induces punifhment is fufficiently found in the intoxicated perfbn
(peaking confufedly and indiftindly, as it is from this that drunken*
nefs is generally underftood. Many doctors agree with the two dif-
ciples in this point. The argument of Haneefa is that the drhdung
of wine is among the cauies of punifliment, M'herefore it is to be no*
ticed only in the exccfs ; for in afts which are cauies of punifhment
thzexcefs of them only is regarded, on account of feeking a pretext for
the purpofc of averting punifliment ; and excefs of druiikemiefs appears
in the intoxication (o far overpowering the reafon as not to leave the
perfbn a capacity of diflinguifhing one object from another.
(In afcertaining the illegality of intoxication produced by drinking
any other liquor than wine, regard is had to what the two dif-
ciples maintain concerning the punifhment for drunkennefs pro-
duced by te/m^-drinking.) — SlnfeU in the punifhment for drunken-
nefsy has regard to the appearance of the effeft produced by the
wine, in the intoxicated perfbn^s walkings or other aftions, by
his fiaggering or turning giddy when he attempts to walk ; but our
do&ors fay that fuch eiSeft may proceed from diflerent caluies, as
they fbmctimes do not attend drunkennefs, and fbaaotimes oocur ia
other cafes, (fuch as tveaknefs for infianoe,) wherefore this fpedes of
e0e£t is not regarded.
If a perfbn, during a fit of intoxication, fhould make confeflion of ConTefion of
any thing which occafions punifhment, (fuch as wboredom lor inflance,) ai^e^riS^g
no punifhment is to be inflifted upon him, as in fuch a confoffio.% &*lS^'
there is apprehenfion of wifehood, and this apprehenfion is to be re- v^:
garded fo far as to avert puaiihment, fince punifhment [HidJ] is
purely a right of God :— it is otherwife, however, in punifhment for
Vox-. II. I Jlander^
5« PU|JISHMENTS. Book VII.
pander ; for if a man in a (bte of intoxication were to make confeflioa
of flauder, punifliment for dander muft be decreed upon him, becaufc
this is not purely a right of GoD« but is alfo a ri^t of the indhtduaU
and therefore a ftate of drunkennefs is here the lame as a (late of
iobriety^ for the fake of inflicting z penalty^ in the fiime manner as in
all other matters, fuch as divorce^ fnanumiffioH^ and (b forth.
nor^^cf. If a man, during intoxication, (hould apoftatize from the Aitht
his wife is not thereby divorced from him, becauie infidelity depends
upon what may be a perfon*s beliefs and that cannot be afcertaincd
during drunkennefs.
CHAP. V.
Of HiJd Kazafy or the Punijhmcnt for Slander.
^^p^jH^^ ^ K.AZAP, tn it^s primitive fenfb, (imply means accufatien. BjKanqf^
in the language of the law, is underftood a man in(inuating a charge
of whoredom againfl a married man or woman ; the per(bn (b aCHng
being termed the KA^^ or ponderer ; and the man or woman (b (cau«
dalized the MaHocf^ expmdered
Paniihaent If any pcrfou exprefsly accu(e of whoredom a man or woman
tJj3£^ who is married •, in fuch cafe, if the accufed require the magiftratc
^ Widioitt prodiidog the smmber of witoeflb xcqiiifiiie to prove the charge.
to
Cmap. V. PUNISHMENTS- 59
to pais fetUencc of puaifliment for flandcr upon that perfon, the ma- ^ «««'^-
giftrate is bound to order its infliction.
The puniihtnent for (lander is eighty Jlripes^ if the (landered be The pttiih-
frcty beoaufe God has fo commanded in the Koran ^ ikying, — *^ But fmaLm. is
** AS TO THOSE WHO ACCUSE MARRIED PERSONS OF WHORBDOMt ^l^f^'^*
^* AND PkODUCE NOT FOUR WITNESSES, THEM SHALL YE SCOURGE
** WITH FOURSCORE STRIPES.** And the conditions upon which
this puniihment b to be inflided are twofold;— first. That the ac-
cuied make rcquifition thereof, becaufe of his right being involved in
it, in as much as (candal is by that means removed from him;—*
SECONDLY, That the accuied be a married man, this being particu-
larly (pecified in the text already quoted.
It is necei&ry that the eighty ftripes [or ftrokes] be inflicted on
different parts {or limbs] of the offender, m conformity to what has
been already advanced upon that fubjeft with refpeft to the punifli-
ment for whoredom : but it is to be obferved that the perfon fuficring
this corre£lion is not to be dripped naked, becauie the occalion of
the punifliment is not abfblutely certified, fince it is poifible that the
accufer may have fpoken truly, for which reafbn it mud not be in*
fliAed with^^vrrz/y, as in punifhment for whoredom. The outer gar-
ment or robe, however, together with any clothes which vtjiuffed
or quUtedy muft be removed, becauie fuch a covering would prevent
a perfixi from feeling his puniihment.
If the accufer be \JUw^ the puniflmient for (Under with refped ^*?jj ^*'
to him v^ forty Jlripcs ; as bondage induces only half punifliment, — ^'^'*
according to what has been before repeatedly obferved upon that
head.
The fate of marriage of the (landered peribn [which is Tkkn^nm
a requiiite condition of punifliment to t}xc Jlanderer'] requires that futtJ^
I 2 he
6o
iBdocet pu-
aiihmeflt.
PUNISHMENTS.
Book VII.
he or file be free, of found judgment, of anature age, and a Mufful*
man ; and alio of chafte repute ; that is to fay,«~free from any fufpU
cion of adultery : there are, therefore, five conditions required in it ;
viMT^^^Tlit freedom of the accufed^ becaufe the word of God (ays,
** Upok th£M,*' (that is upon female (laves) ** is due half the
*• PUHISHMENT THAT IS DUE UPON Afo^(Jr;i<w,'*— Where the word
Mabfanas^ by the context, implies yrir^ womcn^ in oppofition-to^ovr/,
whence it appears that the term married [Mah/an] here applies only
to yr«/rt>//ir;— SECONDLY, Sanity of inte/Uff^ and, thirdly. Ma-
turity ^^f, —-becaufe infants and idiots are not liable to be fcandalized,
as whoredom cannot be proved upon fuch;«<-F0URTHLY, Ifliimy be*
caufe the prophet declared, •♦ ^ Polytheijl is not a Mahsak :'' and
f^ifruLy f-^Aii/fiiy^ bi^raufe no (c&ndal attaches to any other per-
fons than thofc who are of ehafte refime^ and the accufer of an
unchafie perfon, moreover, (peaks truly.
CaTff which
conSiiitte
IbDdcf.
If a per(bn deny another*$ parentage, as if he were to (ay to him,
«« Thou art not thefon of thy [reputed] father !'' fuch perfon there-
by incurs puni(hment for (lander : this, however, is only where the
mother of the perfon thus addrefled is a married woman^ becaule fuch
denial is a pofitive accu(ation with refpe£fc to the mother of that per-
fon, ftnce the legitimacy of a child cannot be denied unlets it be
begotten in whoredom.
If one perfon, in the heat of pafliou, fay to another, ** Thou art
'^ not the Ion of fuch-a-one,** and* the perfon mentioned be his (a-
ther, and his defcent be eAablifhed as from him, in this cafe the
perfon fo fpeaking incurs puni(hment for (lander. But if thefe words
be fjpokai in any other circumftance than the heat of paflion, punifh-
ment for (lander is not incurred by the fpeakcil, becau(e fuch words,
if fpoken in wrath, imply malicious and wanton abufe, whereas, if
uttered in a calm and deliberate moment, they may mean no more
than an upbraiding, by denying any likeneis between the perfon
fpoken
Chaf.V. punishments. 6j
ipuken to and his fathcft in point of goodnels of difpofitioni fuch as
benevolence and fo forth.
Ir a man (ay to another ; '^ Thou art not the (on of fuch^a-one/*
and it (hould happen that the perfon named is the gran^atber of him
who is thus addrefled, the fpeaker does not incur punifhment for
flander, becaufe his aflertion is literally true. And, in the fame
manner, if a man fliould declare another to be the ion of one who is
Ym greauffaiber^ he does not thereby incur punifhment for flander, be-
€aule the child^s child is metaphorically referred to the granJfntber^
and is called bis child. *
If a man call another " zfin of a vobore^^ and it fliould happen Cifc cf t
that the mother of him who is thus addrefTed is dead, and had been nirbmcnc^or
a married woman, in fuch cafe, if he [the ion] require punifhment ^IH^^^^ ^
for ilander to be inflided upon the fpeaker, the iame muil be inflifted
accordingly, becauie the fpeaker has flandered a married woman
after her death. It is to be obferved, however, that a right to demand
punifhment for flander, in behalf of a deceafed perfon,^belongs only to
one in whofe parentage a flaw is created by the imputation, and this
is either the parent or the cbild^ becaufe fcandal attaches to the
child of the accufed, and hence the flander applies to the child alfb
in eflfed. According to Sbrfei^ any heir may demand punifhment
for flander in behalf of a perfcxi deceafed, becaufe punifhment foe
flander is held by him to be a matter of inberiiance^ as ihall be here-
after demonftrated. According to our doftors, on the other hand,
the power of demanding punifhment for flander in behalf of a perfon
dedeafed is not in the way of an mbentance^ but for a reafbn adready
intimated, that the fcandal arifing from the flander attaches to the
deceafed;— whence it is that the right to demand punifhment for
Ilander on behalf of a defunft appertains to one who may be excluded
firom inheritance by the murder of the perfon from whom he inherits t
and that it alio appertains to the child of the daughter^ in the fame
maimer
6t PUNISHMENTS. Book VII.
manner as to the child of they^, (contrary to the opinion of Mo^
bammed\) and alfo, that it appertains to the cbiU^z child during the
lifetime of the y^r^Tirr, (contrary to the opinion of Z^r ;) — and (b
alfot that if the deceafed perfbn who was flandered were married^ it
is lawful for that peribn^s child to demand the punifliment for flander«
although fuch child (hould be an mfdel^ or zflave. Thb laft is alio
contrary to the opinion of Ziffer^ who argues that if the right of de*
manding puniOiment for {lander« in behalf of a defunct, were to reft
with .the child, being an infidel^ it mud to appertain, either in the
manner of an inbcritance^ or on account of his being a party ^ becaulc
of the flander extending to him by effell^ (fince the icandal ariltng
from it attaches to him;) and both theie inferences are unfupported;
the frft^ becaufe punilhment for flander is not a matter of hibt-
ritance ; and the fiecffJ^ becaufe, as an exprefs accufation of whore-
dom made againil the child does not induce punifliment for flander,
(fince an infidel cannot be a married perfon in the lenfe which fubjecls
the accuicr to punifliment,) (b, in a cafe where the flander is efla*
1>liflied with refpeft to him h efeff only, it does not induce punifli*
ment afortiaru-^O^x dolors, on the other hand, argue that, in the
cafe in queflion, the flandcrer, byaccufinga married perfon, has fixed
a ftain upon thi dhild, for which he will leek fatisfaclion by puuifli-
ment for flander: — the principle upon which this proceeds is that
the circumftance of the accufed being a warned perfon is made a con*
dition [of puniflunent upon a flanderer] iii order that, in the charge
of whoredom, the imputation of a (lain upon him may be com-
pletely eflabliflied, after which fuch imputation of a ftain delcends
to his child; and fuch is the cafe in the preient; inflance : and
although the child be an infidel, yet infidelity docs not prevent a
claim tf right: contrary to a cafe where an exprefs accufation is ad«
vanced againft the child himfflf\ for m thid cafe puniOiment for
flander is not incurred, becaufe here the imputation of a ftain does not
completely exift, as marriage (in the (cnfe which would induce
punifliment for flander,) does not exift with refpcd to the accufed^ on
account of his being irif /i^i/ir/.
A SLAVE
Chaf.V. punishments. «j
A SLAVS is not permitted to demand punifliment for flander upon ^ '''** ^'^
his mafter, — ^wherc the latter has flandered his mother, being a mar* pyniOimenc
ricd woman; — neither docs it belong to a fon to demand puuiihment SSSr^'nor a
for flander upon his father, — where the latter has flandered his fon»ponhi»
mother, being a married woman ; — ^becaufe a mailer is not liable to
any chaftilement on account of his flave, nor a father on account of
his (on ; whence it is tliat retaliation is not executed upon a Either oil
account of his (on, nor upon a mafler on account of his flave. But
if the mother (hould have another Ton by another father, that fon may
demand punifliment for flander to be infli^led, on behalf of his mother,
upon the father aforefaid, becaufe the occafion for punifhment,^
(pamcly Jhifuferj) is in that cafe fully eflablifhed, and the obflacle to
die demand of it does not exift in the perfon who demands it.
If any perfon accufe another of whoredom, and the peHbn (b ^« decnfM
flandered die, punifhment for flander is not incurred. SAi^^ci main« dcied ^ny
tains that punifliment is not to be remitted. And in the fame ^Saemt.^'
manner, if the flandered perfon (hould die after theinfliAion of a fart
of the puni(hmenf upon the flandercr, the remaining part thereof
ceafes, according to our do£lors. — S&afei ziltges that it does not cea(e.
This difference of opinion obtains becaufe punifhment for flander is a
mzttCT of inientance^ according to Sbafei^ whereas according to ou^
dodors it is not (b. It is to be obferved that there is no difl^rence of
opinion concerning the punifhment for flander being a right of God,
and al(b a right of the individual ; — ^becau(e the puni(hment for
flander has been ordained by the law for' the purpofe of removing
icandal from the perfon flandered, and the advantage r^fults (bkly
to <he flandered, on which account, puni(hment for flander is a rig^t
of the tmBvidual i^^znA it has alio been ordained for the purpo(e
€)ideUmtcni^ (whence punifliment for flander is termed Hidd*^) and
• See the definidon of HUd in the beginning of this book.
to
64 PUNISHMENTS. Book VII.
the defign of the inftttution is to purify the world from fin, aad
this demonftrates that punifliment for (laader is a right of God:—
ibme of the ruks in it, moreover* prove punifhment for flaoder
to be a right of the in£viJnal^ fuch as that ** it cannot be decreed but
^* where (bme peribn fues for it/* which is a right of an indiv/duali^^
andy on the other hand, (bme of it*s rules prove puniflunent for (lander
to be a right of God, fuch as, that ** the exafidon of it is committed
^* to the magifirate^ and not to the ferfin Jldndend.^^ — In (hort, in
the puni(hment for {lander there are two contending principles ; and
fuch being the cafe, Sbafa gives the Jirft principle the preferencCf
namely, the right of the mJhidual^ con(idering that as fuperior
to the ri^t of God, the right of the individual being preferaUct
hecaufe of his being nece{ntous, whereas God is not nece(&tout :
our dodtors, on the other hand, give the fecMd principle the
preference, and hold it to be the fuperior, becau(e in whatever
degree the right of the creature may be concerned, the Creator
is the furety, and the guarantee thereof; and hence the conver(atioa
of the rights of the individual is therein obtained : but the ca(e is not
the(amein the rn;r);y^ of this propofition, hecaufe there is no autho-
rity to exaft the right of God, but in the way of a vicarious delega-
tion. The(e diffi^rent tenets, as held by each party, arc notorious ;
and from them proceeds a contradi&ion of opinion refpeding a variety
of cafes in puni(hment for (lander. Thus, according to Sbrfei^ pu-
ni(hment for (lander is an Inbcritance ; but in the opinion of our
doftors it is not (b, as inheritance obtains only in the rights of the m-
dividual^ and not in the rights of God. — ^Again, the rcmi(non of it is
not approved by our dpOors ; but according to Sbafei it is approved :
and again, it b not lawful to accept of any thing in lieu of punifli-
ment, iaccording to our doflors; but according to Sbifci this is
lawful. It is recorded that the opinion of ^^ Toqfafi^f^Qmg re-
miilion is the £une with that oiSbafeu
GonftOioa of jp j^ peribn make confcdion of (lander, and afterwards retraft from
fuch
Chap. V. PUNISHMENTS. 65
fucb confeflion, his retra£latiou is not to be credited, becaufc, as the ^^ ^ ^-
right of the (landered perjfbn is therein concerned, it is to be fuppofed
that he will faUify the retradation :— contrary to llich punifluncnts
as are purely « right cfGoD^ where the retmdation miifl be admitted,
as there is no perlbn concerned to oppofe the veracity of it.
If a man were to call an jfroA a Nabatbean *, punifliment for A lerm of
flander is not incurred by him, becaufe he is here fuppofed only to cimftiiuu "^
fpeak comfarathcfy^^mplyin^ merely that the perfcin he addreflcs is A^*^*
z Nabatbean in badnefs tf dijpofition^ or m want of virtue: and in the
fame manner, if a man were to (ay to an jlnJf ** Thou «rt not an
•• Arab^^ no punifliment would follow for the lame rcafon.
Ip a man fay to another, ^* O fon of the rain,** he is not a
flanderer, becaufe thefe words may be confidered as implying purity
and foftnefs of trnfiners^ as rain is diflinguifhed by the qualities of
purity 2XiA foftnefs.
If a man, in fpeaking to another, fhould declare him to be the
fbn of any of his parental relations other than \i\s father^ fuch as his
maternal or paternal uncle, or his ftepfather, he is not a flanderer,
becaulc it is common to beflow the appellation of father upon each of
thefe relations, in the fame manner as upon the natural parent.
It a man, being in anger, fay to another Zitttefeeal^Jiblee +, and Equivocal ac*
Hiould plead that he thereby meant " you climbed up the hill," yet SlSrSiif
punifliment for flander is to be inflidbed on him, according to the two "*"" P"-
EJders. hfohanmied mahitains that punifhment is not to be inflicted
* The IhhHbetm are a uibe open the confines of JM^ remarkable for the barbarity
and ferocity of thetr manners.
t This may be either tranflated ^ you xtnmlUed whreJmn in the mountaifi,'* or
<* you mfienJed xht mountain,*' u the term Zlnna fignifies not only whrid§m^ but alfo
Vol. 11. K on
66 PUNISHMENTS. Book VII.
on hiin» becaufe the word Zinte m»QS dfccndtng^ in its literal fenfe^
and the mention of a mountain proves that fuch is intended by it.
The argument of the two Elders is that Zinte is ufed toexprefs wbare^
dom alfo ; and the circumdance of anger proves that by the word
Zinte whoredom is intended ; wherefore puni/hment is to be infliAed,
in the fame manner as if the term Zinte had been ufed witb6ut any
mention of a mountain^ and he were to fay that by Zinte he meant
a/cent.
If one man were to fay to another Zinte ali-al Jiblee •, according
Xsifome doAors punifliment for flander is not incurred by him, be-
caufe the mention of a mountain, in this place, demohibrates that by
Zinte he meant afcending : but according to others^ punifliment for
flander is incurred, becaufe a fituation <>£faffion and abufe proves the
meaning of the fpcaker to be ^'boredom.
m^tumi neri
1/ "I^- ^^ ®"^ ^^^ fliould fay to another " Thou art a whoremonger,'*
and the other fliould anfwer " nay, but thou^^^ — they both incur
punifliment for flander, as attempting each to fix an imputation of
whoredom upon the other.
?*^between ^^ ^ ^^^ fliould fay to his wife ** Thou adultrefs !'• and flie
mhaibtndjuid fliould anfwer, faying, '^ Nay, but tiou !*' punifliment for flander
TOBiftmenT *^ incurred by the woman : and there is no Ladn ifi this cafe ; be-
*^' ca^fc the hufljand and wife are both equally accufers ; but the accu-
^^. fatten advanced by a hufband agsunft his wife iiiduces Ladn; and that
by a wife againft her hufband induces punijhment /or Jlanikr; and pu-
nifliment for flander is here firfl inflidled upon the woman in order to
prevent Ladn^ as a pcrfon who has fuffered punifhment for flander is
incapable of makmg Ladn ; for if this arrangement were reverfed,
• Diterally, ^ You afcendcfl vpM the mountain,'* or, « You have committed whpre-
*^ dom tfin the mouotaio." llie word Ala [upon] is the only dtlTerence between this and
thff preceding cafe.
(that
Chap.V. punishments. 67
(that is to (ay, if thcJL^ifi were previoufly required of the woman,)
neither the Loan nor the puiiifliment would' drop : the punilhment,
therefore, is to be firft mflifted, in order that Loan may be prevented ;
for it is laudable to (bek a remedy by which Ladn may be avoided,
becaufe that is al(b punishment in eAect *. But if the wife; in the
example hc^e recited, were to reply to her hulband, ^^ I have com*
^* mitted adultery with you,** in this cafe there is neither punifli-
ment for (lander, nor Ladn ; for there is a doubt roncerning both
puni(hment and Ladn^ as it is pofTible that the woman may allude to
a h€t of whoredom committed before marriage, in which cafe pu-
niflimcnt for whoredom would be incurred by the woman, and not
LaaH^ (he having, by her reply, confirmed the aflertion of her hu(^
band, in thus imputing whoredom to him ; but by the hu(band
nothing would be incurred, as he does not confirm her ailertion : and
on the other hand, it is alfo po(ilblc that (he may allude to carnal
comiexion after marriage, as if flie were to fay, [in explanation,] —
** My adultery confided in your having connexion with me, after our
*^ n)arrbge, againftmy will,** (and this, in fuch a (ituation-|-, is the
moft probable meaning of her words,) in which ca(e Lain would be
uicumbent upon the woman, and puni(hment for (lander would not
be incurred by her, as the accu(ation is made by the bujband^ and AOt
by the wife: and in confequence of the(e two contradictory pofli-
bilities, a doubt exi(b equally with refpeffc to Ladn and puntjbment for
Jlandsr ; wherefore neither is to be infifted on.
If a man (hould have acknowledged a child bom of his witc, and CtTe ofac-
ihould aftenvards deny it, in this cafe La&n is incumbent, becaufe the ^^i
^ And if the wife were firft required to make Laun^ and the |Htnilhment for flander
(which the Laun would not prevent^) were afterwards inflided on both panies, Ihe would
(by thi% mode of proceeding) fuffer, in effea, tw puni/bmnas^ which is unhwful. To
unJcriland this rightly it is nccefiary to remark that jtfie impofitton of an oath is copfidcred
as a wOcmt or banf/bip amounting to fMniJbment.
t Cif rgcTimintttiwuAJiMHg.
K 2 parentage
68 PUNISHMENTS. Book VII.
Mi, Md parentaee of the child has been 'eftabliflied in him by his previous
dMiiJ. acknowledgment^ and by his fubfequent denial an acculation is im-
plied with refpeft to his wife, who is the mother of the child ; he
mud therefore make La4n. But if he (hould frjl deny the child^
and afterwards acknowledge it, in this cale puntihment (or JJafuir is
to be inflicted upon him, becaufe when he thus £d(ifies, Loan is pre-
vented, as LoiiH is a fort of punilhment impofedirom the neceflity of
the cafe, owing to a mutual falfification *, in which punifliment for
(lander is the original, thing, and hence, in a cafe where the mutual
falfiiication is done away f , that which is the original muft be put in
force. The parentage al(b of the child is eftabliihed in this man, m
both thefe cafes, (ince he has acknowledged it, whether fuch acknow-
ledgment be made iefore denial, as iu the Jonncr inftance, or after
denial, as in the latter.
Objection. — In the former inftance, upon La^n becoming in-
cumbent, it (hould follow that the parentage of the child is not efta-
Ui(hed.
Reply. — ^Baftardy is not a neceflary confequence of Ladn^ for
Ijodn may be impofed without baftardizing the child, in the lame
ntinoer as where a man denies a child after a long lap(e of time from
the period of the birth, in which cafe Ladn is incumbent, and the
child is not baflardized, but its parentage remains e(labli(hed ; — as, on
the contrary, a child may be bafbrdized in a cafe in which Ladn is
not incumbent ; as where a hu(band denies a child born of his wife,
who is a (lave, in which cafe the child is bafbrdized, but LaJn is not
incumbent X*
• Where (he wife denies the hufl)and's aiTertion, and the huftind denies the chaftity
of Us wife.
t By one of the parties confeffing the other to be in the right}. as thehufband here
docs, by adcnowledgtng the child after having denied it.
t Owing to the wife being a/nrr.
Chap. V. PUNISHMENTS. 69
Ip a man were to fay to his wife ^^ This is neither my child, nor
*^ ytt yours f*' in this cafel^^f is not incumbent, nor is punifhment
fer dander due, as the huiband here merely denies the child being born
of his wife, and a hu(band is not a flanderer by fuch denial.
Ipamanaccufe of whoredom a woman who has children, the Accafadonof
father of whom is unknown, — or if he fhould fo accufe a woman hat cbudrea
who has made Ladn^ in confequencc of any of her children having f J[?*]J5^,^.
been denied [by her huiband], whether fuch children be living or k/ged father
not, — ^in neither of thcfe cafes is puniflunent for flandcr incurred, be- " ■^-^■■*''
caufe tbcjlgns of whoredom are found with the woman, namely her
cbtldren^ who are without any acknowledged father : the reputation
of this woman is therefore queftionable, on account of thefe figns;
^xAferftSl cbajlity of repute in the accufed is one condition of punifh-
ment for (lander being incurred by the accufer. But if a man were to
accufe of whoredom a woman who has made LmSh in confequencc
ofan imputation of adultery made againft her by her huiband, and
not on account of his denial of her children, in this caie puniihqient
fof (lander is to be infli£led upon the accuier, iince here no iigna tS
whoredom are found with the woman.
If a man have unlawful commerce with a woman in whom he AocvratkNi
has no right of cohabitation*, puuiihment for (lander is not to be in- if^^^][!^
fli&ed upon his accufer^ becauie cbaftity ^refute is Hot applicable to •nlawfiii
the accuied, (and this is conditional to his being married^ in the HcxA ^SH^^^m
which induces puniihment for (lander upon the accufer,)— 4nd alio, "■^^/••*^»
becauie the accufer in this inftance fpeaks truly.
It is to be obferved as a rule,, that puniihment for (lander is not under ccrula
incurred by the accufation of any perfon guilty of fuch a carnal con* '***^******
^ Thccc are many cafes of this defcription which do not amount to wbtnim^ as inajr
be fea wider die head ^Emnmu CmmxUn^ &c»
junAioQ
PUNISHMENTS. Book VIL
junAion as is in its own nature unlawful^ bccaufe the term nvbarcdom
[Zinnii] figniiics a carnal conjunction of this defcription : — but where
a perfon forfn« fuch a carnal connexion as is unlawful on fome other
account^ punifliment for flander is incurred by the accufation of him,
as a carnal conjundion of this defeription is not whoredom. — ^The con-
nexion of a man with a woman who is not his property in any fhape
whatever, (fuch as a Jlrange woman,) or with one in whom he has
no property in fomc one (hapc, (as in a fartnerjhipjlaroe^ for inftancet)
is unlawful in its own nature ; fo alfo is his connexion with a woman
who is his flave, but who is one with whom cohabitation is unlawful
to him by a pttffetual illegality^ (fuch as Yiis fojlerjijler ;) but his con-
nexion with a flave with whom cohabitation is unlawful to him by fuch
an illegality as is not of a perpetual nature, (as in the cafe of one with
vthokjijler he coliabits, either as his wj^, or as hiB Jlave^) is unlawful,
on another accoMnt *. Aboo Hatuefa^ (in the cafe of ///r^^tf/ cohabitation
under a perpetual illegality,) makes it a condition f that the perpetual
illegality be univcrfally admitted and eftablifhed upon the authority of
the moft generally accepted traditions, fo ^s to be determined and
known beyond all doubt or difpute : for example, if a man were to
accuie another, who had carnal connexion with a partner/hip female
Jkrve^ in this cafe punifliment for flander is not to be inflicted upon
the accufer, becaufe tlie accufed appears to have committed the zCt
with one who is his property in one fliape, but not in another. But
if a man were to accufe a perfon who has cohabited with his female
flave, being a Pagan^ or with his own wife during her courfe$» or with
his Mokdtiba^ punifhment for flander is incurred by the accufer, becaufe
here the illegality (fuppofing the exiflence of the right of property^)
is merely of a temporary nature, continuing only until the removal of
* That is to (kj, although it be not unlawful in its nyn nature^ jtt it is made (b by r/r«
enmftatiies: but this is not a perpetual illegality, as the prohibition (in the inftance here
cited) would be removed by the death or other means of removal of the fitter : contrary lo
ferpelMl illegality, which exilfmg in tht/uhjetl herfelf^ can by no means be removed.
t Of the aA amounting to whoredom.
thofe
Chaf.V. punishments. 71
thofe obftacleSy (namely 'Pagamfin^ or the courfes^ or the contrail of
JCr/^irf ;)— this illegality, therefore» is illegality on anatber account,
and hence the aA is not xvboredom. It is recorded from yiboo Too/of
that the carnal conjun^on of a man with his Moiatiba occaHons the
deftru£tion of IbJSn in him ; and fuch is alfo the opinion of Ziffcr^ be-
cauie a Mot£tiba is not her owncr^s property in reipe A to carnal enjoy-
mentf (whence it is that if a mafter commit that a& with his Mo-
JU/iba^ he becomes reiponfible for her jfiir : *)— our doAors, on the
other handy obierv.c that the perlbn cf the Mokdtiba is the property of
l)er mafier« but that the enjoyment thereof (with refpe£t to the
md^^r) is illegal on another Hiccount-^^ (ince it is an illegality which
continues only until fuch time as the Mokaiiba appears unable to
pay her ranfbm, or the contract of Kitibat be broken.-r-If a man
accufe a perfbn who has had carnal connexion with his fenuJeJlave^
being YM/o/lerJiJler^ punKhment for (lander is not due upon the ac-
cuser, bKajjfe carnal connexion with this flave is prohibited to the
mafter by z perpetual iUegaiity: and this is approved doArinc.
If a peribn accufe a deceaied Mokkib who may have left effeds FmiOiaeBtii
fufficient to difcharge h'ls rauifom, yet puni(hment for flander is not fl^dcrivy a
due upon the accufer, becaufe here is a doubt with ref|>ecl to die J^f^'^
perfect freedom of the Mokaiib^ the companions differing in opinion
upon this point.
If a perfbn accufe a Muffulman convert, who, whilft yet a Pagan^ » » /»mr#,
had married his mother, punifhmeut for flander is to be infliaed JSjii)
upon the accufer, according to Hanetfa ;— but the two difciples allege
that it is not due. The foundation of this difference of opinion is
that the marriage of a Pagan with his own mother is approved among
;tliepoitioairycbbtokpiidiolKriacfaeiiiaii^
t ThUiHMioflinmjMlMrv, biUOGcafioiMll^rms^
the
72 PUNISH ME NTS* Book VII.
the Pagans^ according to Haneefa^ — but the difdples hold that it is
not approved; as was explained at large in the book o{ Marriage.
Jjwj|^«J» If an infidel, refiding under proteOion in a Muffuhnan ftate,
mn iMriwhQ (hould accufe a Muffuhnan J puntfhment for (lander is incurred by him*
iU^ZwM. becaufe, in puniflimcnt for flander, the rights of the imSvlJua/ zre
concerned, and the protefted infidel has undertaken to pay a due ob*
fervance to the rights of individuals, fince, as he himfelf defires to be
fcreened from injury, it follows that he undertakes that he will not
offer injury to others ; and alio, that he fubjeds himfelf to the cou(e«
quence, if he fhould do fb.
A KmfwlmM If punilhmcnt for flander be inflicted upon a Mujfubnan^ his evi*
lammelu^* dence cannot afterwards be received, although he ihould repent. —
2r^*J'"' 5*A^i' alleges that, in cafe of repentance^ the credibility of his
from being \ evidence is reftored. This point will be further explained in treating
nmimfi. ^ Evidence.
wtAuiU^l If an infidel fuffer puntfhment for (lander, his evidence becomes
^^^!zim^ inadmiffible, not only with.rcfpeft to Mujfuhnans^ but alfo with re-
•^''•J fpcft to ZimmeeSy — becaufe competency in evidence appertained to
him with refpe£t to all of his own defcriptlon, (namely, Zitmnees^)
but his evidence is thenceforth to be rejected, — rejeAion of evidence
being one of the confequenccs of puni(hment for (lander. — But if this
infidel fhould be afterwards converted to the faith, his evidence then
becomes admiflible with rcfpeft to bi^A claflcs, (that is, both Mujful^
mans zniZifmneiSf) becaufe, upon his embracing the faith, he obtains,
Jenavoy a competency in evidence which did not before e^ift*, and
the rejection of which, therefore, is not a confequence of the punifli-
mcnt for flander : contrary to where a flave fuffers puni(hment*for
flander, and is afterwards emancipated ; for here his evidence flill
• Namely with refpea to Muffidmns.
I continues
Chap.V. punishments. 73
continues inadmiflible, (ince, as he was not competent to appear at
all as a witnefs, during his Jlavery^ fb as that the rejedion * of his
evidence might be the conicquence of his having fufFered punifli-
ment for dander, this circumfbnce will operate to that efTefl after
his emancipation.
If a (ingle ftroke be infli£led oti an infidel on account of flander, CtfeoTimiao
and he (hould then embrace the faith, and the remainder of the punifh- br^ng^^e
ment be afterwards infiided, m fuch cafe his evidence is admiflible, f^^^^JJ*^
becaufe the rejection of evidence b the means of rendering punifh- poniihmcnc.
ment entire and complete, and is therefore a fiumner of punifhment;
but as the degree of punifhment inflifted after his having embraced
the faith is only z partial correnioHj and not what can be properly
tctmtd punifhment^ the rejection of evidence is not to be confidered as
a manner of it-|-. — It is recorded from ^iboo Ywifaf^zX. his evidence
mufl for the fulure be rejected, becaufe the degree of punifhment
tnflidted fubfequent to hb converfion is the greater proportion of it,
and tiht /mailer is a dependent of the greater. But the former is the
more approved doArine^
If a man commit whoredom at feveral different times, or re* a fiagie p«-
peatedly drink wine, and the punifhment for either be afterwards in- ^^to^rT*
fli&ed, the (ingle punifhment, in dther infhuice, is confidered a^ "^f^^i-
anfwering to all the repetitions of ofience; and {o alfb, if a perioi^ mthnJhm or
were repeatedly guilty of flafider, and pimiihment for (lander be .2^7^^*
afterwards inflicted on him. The ground of this, in the cafe of
wuAoredom and wine^drinkingf b that the punifhmait in both thefe
• Meaning the inmim^Xtj.
t TU^ ftnuige tbphtftrjr turm entirely upon the meaning of the term HiJi^ wfiich is
defined to be a certain Hated corrcfiion imfteufy exiMed^ any thing Ihort of this not
being Hidd [punilhmemji but od/ €b4fiifem^
Vol. 1L L inftances
74 PUNISHMENT S, Book VII-
inftances is purely a right of Goo, and the defign, in the infli£lion of it*
is to deter people from the perpetration of fuch offences; and a proba-
bility of this end being obtained is eftabliihed by a iingleinfli^on of
puntfhmenty wherefore the obtaining of it by another iufii£lion of
puniihment is dubious * ; and hence puniihment cannot be inflicted a
lecond time, becaufe of this doubt : contrary to where a perfbn com«
mits whoredom, and is alfo guilty diJUmder^ and of wine^drinking^
for in this ca(e a punifhment is to be inflifted feparat^y for wcry
di(lin£l {pecies of ofience» becaule each of thefe a£ts is of a nature
different from either of the other two, and the defign of each of them
is different, wherefore, in the puni(hment of fuch a£ts there cannot
be any coalefcence': and with refpeft to foHJer^ in the punifliment
wfMdn. gf ij^ ^^ ipjgi^t Qf Qqjj .Jj j^^y jjy Q^j. ^jo^Qfs tQ be predominant^
whence the fame arguments apply to it as to wboreimnzxA wine^
drmiing. Sbafci maintains that, in the cafe of repetitkn of flandery if
the flandered perfbn be different, (as if the firft perfoh (landered were
ZeyJ and the fecond Anuury or, if the peHbn with' whom the flan-
dered is accufed be different, (as if a man were to accufe Zcyd of
whoredom firft with one woman and afterwards with another,} in
this cafe there is no coalefcence of puniffimcnt, but for each flander a
fcparate punifhmeiit muft be infliiled ; for according to SbafeU in the
punifhment for flander, the right of the individual is predominant.
r / ?ff^^* ^''^'^ ^"» probiWy, ahcady obtained^ it iit, (in thtt cafe) mipoSUc that
CHAP-
Chap.VL PUNISHMENTS- 75
CHAP. VI.
Of Tazeer, or Chaftifement*
1 AzsER, In Its primitive fenle, means prohibition^ and alio m- Definition of
ftruHion ; in taw it fignifies an InfliAIon undetermined In its degree ^
by the l a\\% on account of the right either of God, or of the indivi-
dual\ and the occafion of It Is any ofFcnce for which Hidd (or Jlaied
punijhment) has not been appointed ; whether that offence confift in
werdox deed.
Chastisement Is ordained by the law, the Inilltution of It being Ciuftiicneiit
cdabliflied on the authority of the Koran^ where God enjoins men to by the law;
chaftlfe their wives, for the purpofe of correction and aniendment ;
and the (ame al(b occurs In the traditions. It Is moreover recorded
that the prophet chaftifed a per(bn who had called another perjured i
and all the companions agree concerning this. Reafon and analogy
moreover both evince that chaftlfement ought to be inflidted for ads
of an ofienfive nature f. In fuch a manner chat men may not become
habituated to the commiifion of fuch ads; for If they were, they
might by degrees be led into the perpetratbn of others more atro-
cious. It Is alio written in the FaiSvee Titmor-^^ajbee of hndm Sirukbjh^
that in TCneer^ or cbaflifement^ nothing is fixed or determined, but
« It is AflkiiU to fepiraie the ideas of thmjlifimim and fumiJUunt^^Tht law, how*
ever, confiden them as beingeflcncially diftinO^ fince Che degree of i&U(oc fumi/^mnu) is
fpecificd'by the t aw itfcif, whereas, Tmtr (which for diftinaioo's lake we render ih^fiji^
mutt) is caiimitced to the difcretion of the laagiftrate^ and i>r this rcafen it is elfewhere
fendercd JBfarttimmry e§maim.
t Meaning pettj offences.
L z that
y6 PUNISHMENTS. Bcox VIL
that the degree of it is left to the difcretion of the KJnte^ becauie the
defign of it is correffion^ and the difpofitioiis of men with refpeft to it
are differentt fome being fufficiently correfted by reprimands ^ whiift
others, more obftinate, xtx^irt emfinement^ and even Mows.
•natiorroor In the Faulvee Sbrfee it isi faid that there are four orders or de-^
^'•^^' greesofchaftifement i^-piRST, the chaftilcment proper to the mojt
noble rf the nobU^ — (or^ in other words, pnnces, and men of learning,}
which confifts merely in admmttM^ m if the Kizee were to iay to
one of them, ^* I underftand that you have done thus^ or thus,** fo as to
make him afliamed ;— sbconoly, the chaflifement proper to the
noble^ (namely commanders of armies^ and chiefs of diftrifts,) which
may be performed in two ways, either by admonition, (as above,) or by
ytrr^ that is by dragging the offender to the door and expofmg him
to fcom ; — ^THXROLY^ the chaftifement proper to the miidk order^
(confiftmg of merchants and ihop-keepers,) which may be performed
by yirr^ (zs above,) and alfb by imfrifinment i and fourthly, the
chaftifement proper to the lowed order in the community, which
may be perforaied by Jirr^ or by io^rifonment^ and alfo by blows.
ciiaiUcmeBt It is recorded from jibto Ttef^^t the fultan nuy tnfli^l chaf-
|52^b^1iM tiieroeot l^ means oi prcfertyf^t\aX is, by the exaakmof a finall
Hp^*>m"' fum in the manner of a/nr, proportioned to the ofeice -, but this
do£biae is rge^ed by many of the learned.
iMAM-TiMooK-TAsHn &ys that efaaftifement, where it is inw
i^bi%; curred purely as the right of Goo •, may be iuflifled by any pcrlba
§«•«»«»• whttever; for Mo» ^^ Hmdooiiuet being a(ked whether a man,
finding another in the aA of adultery with his wife, might flay him,
* That i*,«riiefe it it incmitd bvMi oicnce comoiittcd metdr «£••"& ^ I-A^* *"^
replied.
CifAP. VI. PUNISHMENTS. 77
repUedf ^^ If the hufband know that expoihilatioa and beating w31
" be fufiictenttodeter the adulterer from a future repetition of his
^* ofience, he muft not flay him ; but if he iee reafim to fuppofe
'* that nothing but death will prevent a repetition of the offence, in
'* fuch cafe it is allowed to the hufband to (lay. that man ; and if the
*^ woman were confenting to his ad, it is allowed to her hulband
** to (lay her al(b ;**— from which it appears that any man is on*
powered to chaiHfe another by iJaws^ even though there be noma-
giibate prefent. . He has demonihated this fully in the Ationtaffie t
and the reafon of it is that the chaftifement in que(Uon is of the cla(s
oi tie remwal ^ evil whb tie AanJ^ and the prophet has authoriled
every peribn to remeve evii with the band^ as he has (aid «• IVbofoever
*' among ye fee the evi/^ kt bim retneJ^. it witb bis owm bauds ;
" but if be be unable Jo to d»^ let bim forbid it witb bis tougue^^^-^-^o
the end of the fpeech.)— Ci^^m^/r/, therefore, is evidently con-
trary to funi/bment^ (ince authority to inflicl the latter does hot
appertain to any but amagiilrate or a judge. — ^This fpecies of chaftife-
ment is alio contrary to the chaftifement which is incurred on
account of the right o( the individual^ (fuch as in cafes ofjlaudfr^ and
fo forth,) (ince that depends upon the complaint of the injured party,
whence no perfon can infii^ it but the magiftrate, even under a
private arbitration^ where the pbintifT and defendant may have re-
ferred the decifion of the matter to any third ferfou.
ChastisbmenV, in any inftance in which it is authorUed by it it to be in.
the LAW, b to be infliaed where the Imdm fees it advifeaWe. SSHt^uTTr
tlK)riftd.
Ip a per(bn accufe of whoredom a male or female (lave, an Am^ Oiftiftmctti
If^aBd, or an infidd, he is to be cha(tifed, becaufe this accu(ation is fl^criog a
an offenfive accufatbn, and punishment for flander is not incurred ^^^^^
by it, as the cm^tton^ namely IbJUn^ (or marriage in the (en(e
which induces puni(hment for (lander,) is not attached to the accu(ed :
dia(H(ement therefore is to be infli^ed. And 10 the fiunc nuurner,
if
78 PUNISHMENTS. Book VII-
if auy pcrCon accufe t Mt^klrtum of any otftior tlikfg tkati wh^nAm^
(that is» abufe him, 67 eaUing Mm a rtfr^b^m^ or a wf^i^, or aii in-
^1^/, or a thief ^ chaflifeoient il incurred, becaufe he iiijures^ iMgffi^^
fHon^ and defames him ; and puniflunent [KJd] cannot be conlidered
as du« irom analogy, finee analogy has no concem with the nccef*
Itty of punifliment : chaftifemcnt therefore is to be infltfted. Where-
the aggrieved party is zJUtve^ or (b forth, the chafti(ement muft be
infiiAed to the txtrtnuiy of it : but in the cafe of abufe of a Mufful-
num^ the meafure of the chaftiiement is left to the difcretion of the
magiftrate, be it more or le(s; and whatever he (ees proper let him
inflia.
It is HOC in. Jf a pcrion abufe a Muffulnum^ by calling him an afs^ or a b(^^ in
aJiii«itM/- ^^^ ^^^? chaftifemcnt is not incurred, becaufe the(e exprdlions are in
^otTLl.' no rcfpe€k defiunatory of the peribn towards whom they are ufcd, it
being evident that he is neither an a/s hot a Acrf. Some allege that,
in oi^r times, chaftiiement is itifli^ed, fmce, in the $nadtrn accepta-
tion, calling a man an ^ or a bog is held to be abu(e. — Others again
allege that it is efteemed fuch only whore the peribn towards whom
fuch expreffioas are uied happens to \^ o{ digmfcd rank (Cuch as a
prince^ or a man of Utters^ in wKich ca(e chafttfement m^ft be in-
(lifted upon the abufer, as by io fpeaking he expofes that perfbn of
rank to contempt ; but if he be only a camtnon perfon, chaftifemcnt is
not incurred: and our author remarks that this is the moft approved
doftrine*
Tii« ^«r« The grtattfl number of ftr^, in chaftiiement, is tbirty^nme ;
/irwaHpetio and x\it fpnaUefi nuitfber is tbnee. This is according to "Hamefa and
thinjmm. Mobmmn^i. Moo Toofrfbys that the greateft number of ftripcs, in
chafiifenuni^ is fiveniy-five. The reftriaion to tlnrty-fivi ftripcs is
founded on a faying of the prophet, «« tbe man wboJbaU tnfUafcourg^
'* ing to tbe amount j^pvnishmbKt, in a cafe where punishment
is not efiakHfied^ fhall he accounted an aookavatok/^ (meaning, a
I wanton
f
Chap^VI. punishments.
wanton aggravator of piuuihrnent,) from which laying it is to be in-
ftrved that the inffi£tion of a nuitiSer of (Iripes, iii tb^iftmmt^ to the
lame amount as in funlfiment^ is nnlawful ; and this being admtttedf
Haneefa and MobafmneJ^ in order to determine the utmoft extent t^
cbaJUfanefit^ conlidcr what is the Jmalkfl punifliment ; and this is
punifhment for flander with refpeft to a flave, which itfartyflripes ;
they therefore deduct therefrom omflnpe^ and eftablifli tbirty^nhu as
the greateft number to be inflicted in cbajiifefnent. Aboo Toofrf^ on
the other hand, has regard to the fmallcfl: puntfhmertt with refpeft to
^Jrecmen^ (as freedom is the origina^]ytate of maiit) which is eighty.
H/ipes ; he therefore dedudls five, and eftabliflies ieventy^five as the
{Ff^eft number to be infiiaed in chaftifement as aforefaidt becauie the
£uQe if recorded o{ AUt. whole example Aboo To^/^ follows in this
inftaucei It is in one place recorded oi Aboo Too/of thzi he deduced
only om ftripe, and declared the utmofl number <Mf ftripesy in ebaflifi-^
-^Mentf to htfevcntj^nme. Such, al(b, is the opinion of Zifgri and
this is agreeable to analogy*. Mobamned^ \xi his bopkf, has
determined the fnudlcft number of ftripes in chaftifement to tbree^
becauie in fewer there is no chaftifement. Our modem doftoi3.aflect
that the fmalleft degree of diaftifemcnt muO: be Itft to the judgment
of the Lnim^ or Kdwee^ who is to inflict whatever he may deem fufli-
cient for chadifement, which is different with refped to different
men. It is recorded of Aboo Too/of tJtizt be has alleged that the
degree thereof is in proportion to the degree of the offSmce ; and* it i»
dfe lecofided from, hkn that the chaAi(ement for pftty offi»ces
Ihould be infiiAed to a degree approaching to thej>unt(hciient allotted
for oflTences of a fimilar nature; thus the chaftifemeiit for Ithidinoua.
afts, (fttch n^'tifng and toucbing^ is to be inflifted to a degrets ap-
proaching to punifliment for njobore^mi and the cfaaftifement foe
4ibufivi Umguagf^ to a degree approaching to puntfhment bicfitmJkr.
^ • Becauie, in all odaer cafts the deduaion oTiw ton tk wkofe Maker b fbSdSHt
to reduce the .thing from an ktglier CO a lower cla&«
«a PUNISHMENTS. BqokVII.
**''^J|^^ If the KSwee deem it fit, in chaJHfement, to unite imprifmmeni
%9j€9mgit^ with icQurgingt it is bwful for him to do both* fince imprifonment
is of itfelf capaUe of conftituting chaiUfement, and ha$ been fo em«
ployed* for the ; rophet once impriibned a peribn by way of chaftifing
him. But a$ impiiibnment is thus capaUe of conftituting chaftifc«
ment, in offences where chaftifement is incurred by their being efta-
Ui(hedt impriibnment is not lawful before the ofience be proved,
merely upon/ij^cMiif fuice imprifonment is in itfelf a chaftifementt
contrary to oflfbnces which induce punUhmentf for there the accu(ed
may be lawfully impri&ned upon fufpicion, as cbafilfemmixs (hort of
funjflnmnti (whence the fuificiency of imprisonment alone in chaf-
tifement ;) and fuch being the cafe, it is lawful to unite imprlfimmnt
with blows.
inikaMftom
dM moft k*
aiiat to tlM
T^^Wbwi «r ^ The ievereft blows or llripes may be ufed in chaftiiement, becaufci
as regaM is had to lenity with. relpe6l to the number of the ftripes,
lenity is not to be regarded with reCpcA to tie nature of them, for
Jvir^ir otherwife the defign would be defeated; and hence, lenity is not
*^^ ihewn, in chaftifement, by inflicting the blows or ibipes upon i^«
rent parts or members of the body. And next to cJba/lj/ement^ the
ievoneft Uows or ftripes are to be infli^ed ib puniihment for wAare*
iom^ as that is inftituted by the word of God in the Koran. Whore-
dom, .moreover, is a deadly (in, infinnuch that hpidation for it has
been ordained by the law. And next to punifliment for wAoredomf
the fevereft blows or ftppes are to be idUfted in punifliment for
wine^drlnAh^^ as the occafion of punifliment is there fully certified :
and next to punifliment for wine^mking^ the ieverity of the blows
or ftripes is to be attended to. in punifliment fotflander^ becaufe {here
is a doubt in refpedl to the oea^on of the puniflimentt (namdy, the
ae^fathn^ as an accufation may be either h\(c or true; and alfo, be-
cauie feverity b here obferved, in difqualifytng the flandcrer from
appearing as an evidence ; wherefore ieverity is not alfo to be obfcrved
in the nature of the blows or flripes.
If
Chap.VL punishments-.
If the migiftrate inflift cither fumjhment.ox chajllfemint upoii a 5j*f***
peribiu and the fafierer (bould ik in conlequeiice of fuch puQifi^meut ooAiei of
or chaftlfemcnt, his blood is Uid$r ; that is to 6y, nothing what- rtSSft?
ever is due upon it; becaufe the magiftrate is atrthori(ed therein, Co^*
and what he does is done by decree of the f. aw ; and an a£t which is de-
creed is not redrifted to the condition oxfaftty. This is analogous to a
cale of pblehototity ; — that is to (ay, if any perfon deiire to be let blood,
and fhould die, the operator is in no refpcA refponfible for his death ;
and fo here aIfo« It is, contrary, however, to the cafe of a hufband in-
flifting chaftifement upon his wife ; for -his a£t is reftrtfled to iafety, as
it is only tf/Zmc^^toa hufband to chadife his wife; and an a£b which is
only allowed is reftrided to the condition tXfaftty^ like walUng upon
the highway. Shafei maintains that, in this ca(e, the fine of blood is
due from the public treafury ; becaufe, although where ebafti/enient or
funifinunt' prove definitive, it is KattlKbota^ or homciJe ly mifad^
Venturis (as the intention is not the defiruBm^ but the amend^nent
of the fuf!ercr,) yet a fine is due from the public treafury, fince
the advantage of the zCk of the ma^ftrate extends to the public at
large, wherefore the atonement is diie from their property, namely
from t\it public treafury. Our dodlors, on the other hand, fay that
whenever the nugiftxate inflids a rigbt ofQou upon any perfon, by
the decree of God, and Oiat perfon dies, it is the fame, as if he had
died by tbe vifitaikn g^GoD, without any vifible caule ; wherefocB
there is no rcfponfibility for iL
Vol- 11. M HEDArA.
( 8» )
H E D A r A\
BOOK vni.
Of SARAKA OF L ARC I NT.
Chip. L lotrodu&oiy.
Chap.IL Of Thefts which occafion Ampunnion, and of
Thefts which do not occafion it.
Chap. Iir. \)f iCrsi or Cufody^ and of taking away. property
thence.
Chap. IV. Of the Manner of cutting oflTthe Limbof a Thief,
and of the Execution thereof.
Chap. V. Of the A£b of a Thief with refpe^ to the Property
ftolen.
Chap. VI. Of Katta-al^tantk, or Highway Robbery.
CHAP. I.
tiot af O A R AK A literally means tbefecretfy taimg mtiayrfan^btr^s frth
^' O pertjf. In the hnguage of the kw it fignifies the taldng away
the property of another in a iecret duumer, at a time when fuch
property is m n^a^,-^hat is, when the edfeOs are in fuppofed
feciirity
CwAP. I. I. A R C I N y. 83
(ccurity from the hands of other people; and where the-v^ir^ is not
left than ten dirms^ and the efie^s taken the undoubted property ci
ibme other than of him who takes them.
CrsTODY is of two kinds; tirst, cuftody by /Airr, that is, by Cnji^vi^ ^
means of fuch zflaee as is generally u(ed for the preiervation of pro- Waad/gr.
perty, as a Ifoujef or ^Jiop; SECONDLVt hyperfonal guarJf that is, f^^*
by means of a fcrfinat watch over the property^
The pnm\xlveim{c6iSdraiator Larcm/t^^^ Dciutfaiior
away^) includes, (in z4egal view,) the ieginnmg and end of the tranf* m^HtSoM-
aaion, where the theft is committed in the ifa^-zimr,*— but the iigin- '^^ '^'
ifig only, where the theft is conmiftted during the n^htf when the
thief (ecretly breduinto theliotffe,' and tl^n takes away the property
by open violence. The rea(bn df this is that many thefts are com-
mitted during the nigitf by the }k\tSfirdbfy carrying away the pro«
perty, as at that time the mjured peribn cannot obtain any affiftance.
If, dierefore, fhe drcumftance of the thiefs ficretfy bnaikg htto
the place of cttftody, (irhouie of the proprietor, were not fulficient to
eftabliih a charge cS theft ^ puniihment would in many inftances be
prevented : cocftrary to where the theft is committed during the
Jay 'time i for as the injured perfbn can then obtain oi&ftaoce, thefts
are never attempted by open violence, at that feafon; and hence, in
the eftabUihment of a theft committed during the dajtrthne^ the
Jicretfy taking away includes both the hegintung and the end of the
trinfiAion.
In the grisater fpecies of brciny, (namely hig/fWay rebbery) the
Jecretfy taking awey is with reipeA to the Imdm^ whole duty it is to
guard the hi^ways by meant of his afliftants : in the inferior ipecies,
it is with reipeft to die proprietor, or the perfon who ftands as his
ftthftitute.
Ma If
84 L A R C I N Y. Book VIH.
Vaiiw of • Xr an adult,^ of ^nd uoder(bndine, ftcal out of undoubted cuAodv
dttccpatili. ten dirnu^, or property to the value of ten dirms^ the law awards the
M*!^^^ amputation of his hand; God having faid in the Karan^ " If a man
•* or WOMAN STEAL,. CUT OFP THEIR HANDS:" but regard muft
be had to^thc conditions of fanity of intelled, and maturity of age^
becauie mdependent of thefe criminality cannot be efiiiblilhed, and
amputatioais the reward of criminality. It iyalib requifite that the
property ftolen be of importance^ and not of trifling or infignificant
value ;• becaufe men do not covet property of a trifling nature ; nor do
perfbns take fuch property ^r^^, but openly i wherefore that which
conftitutes larciny ^r (namely, Jicreify taking away^ does not exift
in taking property of a trifling na(ure, nor does any pccafioa for J^ter^
wient appear therein, as determent is regarded only in matters of fre-
quent occurrence: befides, the theft of mere trifles is uncopamon^
bccau(e they are little coveted. It is therefore requifite that the pro-
perty for the theft of which the hand of the thief is ftruck off; be of
value and importance.— Concerning the ammmtoi the value there are
various opmions : according to our doctors it is ten£rms: according
to Sbafei it is the' fourth of a Jeendr\ in the c^inion of Malik' it is
three dirmt.^ The argument oSMdlik and Sbafei is that, in the time
of the prophet, amputation. was inflicted for the theft of any article*
of the value of a (hield^ now theloweft value of a (hiekl, upon re«>
cord, is three dirms ; and regard muft be had to the lawefi^ as that is
preciiely afcertained.. Sbafei alio obferves that the value of the
deenir^ in die time of the prophet, was eftimated at twehe dirms. the
fourth of which is tbree £nm. Our doClors argue that, in this par-
ticular, regard ought to be had to the bigbeflikdnxdzrA^ (as this is feek-
ing a means to* wand ofi^the inflidion of punifliment,) becaufe in left
there is a.doul)t concerning the criminality ; and doidft operates to
the prevention of punifliment. A corroboration of this tenet of
our doftors is found in a precept of the prophet, viz.. ** ^%ere is
• Areh. BrnknelSbteU^AiaX is, the ^Air oflarcinj.
CHAP. I- L A R C I N Y.
^ M ampiiatioifsr left than a deenAr, or rsK DIRMS V* It is
to be ob(erved that the term dirm is cuftomarily iifed to exprefs aini
from: which it appears that the property ftolea muft be tea coined
£mu:^ or ibmethbg to the value of ten coined £rm^ bang the fame as
is mentioned in the treatiic oiKadoaree^ and alfo in the ZSbir Rawfyet ;
and this is the moft approved doftrinet as herein regard is -had- to the
completeoefs of criminality. — Ifr therefore^ a peribn were to-Aeal to
the weight often ^rm; of fiiveryuncoined^ and it fall (hort, in value,
often coined iSrms^ amputation-is not incurred by him. In the weight
of the £rm thefeptimalwiigbt is regarded^ [that is» in the proportion
of (even Ml/kdh^ or lOr drams, to the dirm^\ as this is the ufoal
weight of it in all countries. What was before advanced — " or /r#-
•* feriy to ibe value of iendhrnu^^ means that any thing cUc is to be
valued by lArm/, although it confift ofgo/d — ^It is alio an indiipeniablc
requifite that the property be taken out of a cuftody refpeAing which
there is no doubt, (ince any doubt concerning that circumihince would
occafion the remi/Iion of punifliment, as (hall be demonftrated in it*s
proper place.
The (lave and'the freeman, with reipe£l to amputation, arc upon P«»>i.
an equal footing, as, in the text which occurs upon this head, no dif- c<i«a]|y Hp<
tindion is made between them ; and alfo, becaufe it is impoflible to Aahe ^*/* ^
amputatiori. The limb -of a flave, therefore, is to be ftruck off in the
fame manner as thatof a freeman, in order that mcn*s property maybe
preierved.
« The vakieoT Che ifrm team to be veiy indefinice. It it cUewhcre [Vol. I. p. 24.]
obSsnred thauhe dirm b tbont tJ. fterliiig, which prectfelx accofdt with it*i rehtive va-
\^ (as there iiicniioiM4} ia rdped to an Amkiyat of filvcr. But here we fee the Aenir
efttRiated ai^tenirVarfc now a dtttutr^ according to the beft authorities, is nearly of the
lame value -with « duett, namely d)outyh;M>0^fVff^^^ and hence it wouM appear that the
▼alue of theiSnn is from #»/&# pence to«fii# pencefteriing; and upon this calcuhcion the value
of a theft; to induce, amputationr muft be' a» leaft/ur ttmi tigki pmaJlirtUii. In fad, where
checflimatcs ace fe various (owing, probabi/} to diSeraicc of tines and countries) it is im«
poCUc 10 afecrtaio any p f ccift its ndard.
Amyutatioh
86 L A R C I N Y. Book VIII.
d""!l^°^^'* Amputation is to be inflicted upon a fingle confeflion, accord-
fin|i« COB. ing to Haiitfa and Mabommed. Abao Taofyf{zj% that the limb of a
' thief is not .to be ftnick off upon a finglb confeflion* nor until the
confeflion be twice repeated: and it is al(b recorded from Aboo Tocfaf
that the .confeflion muft be made^wice at twoieparate fittings [of the
KdMtis court,] becaui^ cMfeJJtm is proof as well as evidmc^f and is
therefore fubjc^ to a fimilar rule ; and as, in evidence, two witneflfes
are indifpenfaUe, (b iti' confeflion, Repetition is required; as in wSare'-
dom^ {for inftance) where, confeflion bemg held fubjed to the rule of
evidence, four cmf^ms are required, iii the (ame jnanner ^four i»it^
mjfis. Theai:gumaitof/&irr^andAibi&am»^^istluitthe^
apparpnt by a tinj^e confef&on, which therefore iuffices, in the lame
manner asin cafes of reuliatioa, or pucuibment ibr flander ; and there is
no ground to judge concermng this from the rule in emdmit^ fince bf
the abundance .of witije^., ia evidence* the £afpicion of fidfity is
leflened with ttS^!^ toxh^ witnefles; bu( a repetijtioa of confeflion
is altogether u(ele(s, fince no fufpicion ezifts with refpe^ to the per-
(on confefling, which might be leflened by a repetition of his coo*
fefllion: neither is this repetition of any advantage in precluding a
fubfequeipt retn£bt»on, «$ the door of retractation or denial, in a cafe
of fliniJbmtfU^ is not fhvX by a repetition of confeflion; and in a cafe
offraperty^ retractation or denial are AQt admitted after confeflion,
although it .be only wee made, becaufe the proprietor is ready to dif-
prove it : and the rule of repetition of- confeffion, in whoredom, is
contrary to analogy, wherefore confeflioA in theft cannot be judged
upon the fiime prindple»
and alio inm Ampvt ATioN bto be inflided upon the teftimooy of two witnefles,
Ike trftimoo^ becaufe by the teftimony of two witnefles the theft is made apparent,
ii^i^r * and fully eftabli/hed, in the fame manner as in all matters of rigut. But
it is incumbent on the nugiftrate to examuie the witnefles concern-
ing the mcrnierdi the theft, and alfo the ttmeukd pl4iee^ for the greater
caution, as v is mentioned in treating of whoredom. The thief muft
- alio
Cbaf. n. L A R C I N Y. «7
alio be held in confinement, on fufpicion, until the Witnefies be fuUj
examined.
If z party commit a theft, and each of the party receive ten Jtrms^ ^ nambjr
the hand of each is to be cut off: but if they receive lefs than ten one f«a m
dirms each, they are not liable to amputation, becaufe the occafion j^*i2to*pa-
thereof is dealing to the amount which conititutes larciny^ namely, BUbmenu
ten dirms: amputation, moreover, is to be infli&ed upon each on ac-
count of his offence, wherefore regard is had, with refped to eadi, to
the completenefs of the ftandard amount of theft ^ which is ten dirms.^
CHAP. II. ^
Of TTbefts which occafion Amputation^ and of Thefts
which do not occafion it.
Amput A'TiOK is not incurred by the theft of any thing of a trifling Jmpmmim \%
nature, and the u(e of which is allowed among Mujfulmans^ fuch*as ^auiUnf^
te^ooi/, bamboosy grafi^ ffi^fowh^ and garden-fluffs — ^becauie Ayeejba »»«» j'
has (aid that in the time of the prophet this punifliment was'not in« ^^^^ ^*
Aided for fuch pet^ theftis ;. and alio, becaiiie people are little
interefted in thmgs which, although in their own nature lawfiti^ jtX
are in no refpeft particularly deliraGIe : befides, men nor coveting
thefe things, it is not probable that anyone (hould uke them without
the owner^s confent; it. is therefore not requifite to make examples,
ib order to detbr people from fuch thefu ; (whence it isthat ampuution
is not incurred by a theft of left than ten dirms.) Cuflody; moreover,
with refpca to fuch articles, is defe£Hve^ infomuch that pieces of
timber (for inftance) are thrown down without the door, and are not
brought
88 L A R C I N Y. Book VUL
brought within the houfc, unlef^ for the purpofe of making repairs,
and not with a view to cujlody ; TAvi fowls run about at plcafure, and
game fly away ; and in the fame manner, things which are naturally
lawful (fuch as the articles before-mentioncd) are held, in their original
(late, to ht common property^ and this general participation occafions a
doubt, which operates to the prevention of puni(hment. Let it be
alfo obferved that fait dried fi/h^ arc here xonfidered in the fame pre-
dicament 2sfrejh: and in ihe fame manner, iame fowls, and geefe^
and pigeons are inclnded among the fowls before-mentioned, as the
precept of the prophet, to wit " Inhere is no amputationfor fowls," is
general, and extends Ko all the feathered fpecies. It is recorded from
Aboo 2^00/^ that amputation is incurred by the theft of any article
whatever, except water^fowers^ and Soorkeen * ; (and fuch alfo is the
opinion of Sbafei^ — but the tradition of Ayeejlm^ as before recited,
is in proof dgainft them.
or things AMPUTATION IS nQt incurred by the theft of fuch thbgs as
^yttf^lf^' quickly j^o/V and decay ^ fuch as milk^ JUfh-meat^ ox fruit ; becaufc of
the faying of the prophet, ** The bandJbaU not be cut offforJleaU
** ing DATES, PALM-^jFRuiTS-f^ OT VICTUALS/' By the word
viilualsf mentioned in this tradition, is meant fuch things as fooii
fpoil, fuch as viftuals cooked or ready for eatings and whatever clfe
is of the fame defcription, fuch ^flejh and fruits; but not grmn\
becaufe, if a perfon were to (leal wbeat^ (for inflance) or fugar^ all
the doctors agree that his hand fhould be flruck off. Sbrfet men-
tions that the hand is to be (Iruck off for the theft of ^/ the articles
aforcfaid, becaufe of the faying of the prophet ** ^be hand fhall not he
• CiiM/iyrr^ dried for /riM^.
f Arab* Knfa. It is not, properly fpeaking*, z fruity but a fpccies dt hrnel^ weighing
fix or eight ounces, and refembling, in taide, the kernel of the hazel nut. It grows at the
top of the palm-tree, and is a fort of crown to the ptth, each tree bearing only one : it is
commonly called the catiagi of the palm-tree.
<€
Jlruci
Chap. IL L A R C I N Y. 89
^^ Jlruck off for Jlealmg dates or palm-fruits, — but when thofe
** are kept in a barn*^ amputation is incurred by the theft of tljem.*^
Our dodlors, on the other hand, contend that this faying implies no
more than that the hand of a thief fliall be ftruck off for ftealing JrieJ
dates f according to what is the general ulagc, (for the general ufage
is to keep dried dates in barns,) and for dealing dried dates the hand of
a thief is ftruck off according to our doctors alio.
Amputation is not incurred by (lealtng fruit whilft upon the orfrukupoQ
the tree, or
griin upo
fidcrcd as in cujiody. t*^« ^^^
tree, or graia which has n6t been reaped, — thcfe not being con ^^^ „p^
The hand of a thief is not ftruck off for ftealing any fermented
liquor, becaufe he may explain his intention in taking it, by faying,
'* I took it with a view to fpill it ;** and alio, becauie fome fermented
liquors are not lawful property, fuch as wine for inftance, — and con-
cerning others there is a doubt, as to their being property.
The hand is not to be cut off for ftealing a guittar or tabor, the(e ormvficiria-
being of ufc merely as idle amufemcnts. flrumcuts.
Amputation is not incurred by ftealing a Korak although it be orAKo*Aj*,
ornamented f . This is the ZAhhr RanuiyeU Shafei (ays that by ftealing
a Koran amputation is incurred, becauie Kor ans are capable of valua-
tion, and therefore a faleable article. There arc two opinions recorded
from Aboo Toofafy^^n this point: according to one he coincides with
^afe'i ; but, according to another^ he maintains that the hand is to
be ftruck off for ftealing a Koran, where the value of the ornaments
amounts to ten dirmsy becaufe thofe ornaments are not a conftituent
* Arab. Jopfitn^ a fort oSdrylni-nm. t With gdioisjilvtr ctafpt^jiWils^ &&
Vol. II. N part
50 L A R C I N Y. Book VIIL
part of the Koran, and arc therefore to be cocSxAtrtAfeparatefy. The
reafons for the decifion in the Zdfjir Rawdyet zrt twofold: first, the
perfou who takes the Koran may plead that hb intention was merely
to look into and read it : secondly^ a Koran is not property, with
refpeA to what is tc/nV/rn in it ; and the cufiody and care of it b only On.
account of what is written in it^ and net for the fake of the bindings
the ornaments^ or i\iz, paper ^ rhefe being merely appendages i and, as
fuchy not to be regarded : — ^in the lame manner as if a perlbn were to
« ileal a (kin containing wne^ the vahie of the (kin amounting to ten
dirms ; in which cafe the hand of the thief would not be ilrugk off;
andfb in this iiiftaiKe likewifc.
•r diedoorof There IS no amputation foe dealing the door of a mofque^ as this
a m9/fue^ .^ ^^^ ^^ objeft ofcufiodyj and b therefore the fiunc as the door of a
houfe ; nay,, it b flilL lefs the objeA of cuftody than a bou/e-door^ fince
that ferves for the prefervation of the .efiefts within the houfe;
whereas the door of a tnofque does not anfwer thb purpole ; whence it
b that amputation is not incurred by dealing fuch t&&s as are kept
within a mofque«
•f a »*«^* Amputation is not incurred by fteafing a crucijlx^ although it
^^ ' ' be of gold, — ^nor by ftealing a chefs-board or chefs pieces of gold, as it is
in the thief's power to excufe himfelf, by laying ^f I took them with a
^ view to br€ak mULdeftroy them, as things prohibited/* It b otherwife
with refpe£t to corsbearing the impreflionof an /^/, by the theft of whick
amputation is incurred ;: becauie the mm^ b not the obje£k of worihipi
{q as to allow of its deftruAiqn, and thus leave it in the tikiers power
to excufe himfelf. It is recorded, as an opinion of Aboo Toofrf^ that
\Sz crucifix be flolen out of a Chriftian pbce 6f worfliip, ampuUtion
b not incurred ; but if it be taken from a houfe^ the hand of the thief
b to be flruck off,, fbr in fuch a fituatioa it b lawful property, and the
objcftofrvA^. >
The
Chap. II. L A R C I N Y.
9«
The hand of a thief is not to be cut off for Aealing ^free-horn ortfrcc-bom
infant^ although there be ornaments upon it ; becauie ^free perfbn is *" *"**
not property ^ and tlic ornaments are only appendages ; and alfb, becaufe
the thief may plead that ^' he took it up when it was crying, with a
** view to appeafe it, or to deliver it to the ^mrfe^^ Aboo TQof^{zy%
that the hand of the thief is to be cut off where the value of the orna-
ments upon the child amounts to ten dfr/iu; becaiife,* as amputation
would be incurred by the tlieft of the ornaments aloncy it is fo, where
they "are fblen along with any thing eUc.-^The fame difference
of opinion obtains where a peribn (Icals a veilel of fiher (for indance)
coMzmmg pottage^ or any other culinary preparation. It is to be ob*
fcrved that this difference of opinion hplds only where the child is
xacTiip^hXc of walking or JpeaAtng^ for«fuch a child is not //r it^s cwn
power or cuflody.
Amputation is not incurred by dealing an adult flave, asfuch wmmbA
an aft does not come under the dcfcription of theft, bcbg a ufurpa-^ ^^^'
tion^ or z fraud.
Amputation is incurred by ftealing an infani flave, as the con- It u incumd
firu£tion of theft is applicable to. this offbnce: but if this infant flave ^If^SS^
be fuch as can give an account of himfelf, in this cafe amputation is
Dot incurred, becaufe an infant of this deicription is the fame as* an
adult, in this, that both are equally in their own cuftody. Ahoo
Too/of fays that amputation is not to be inflidled for dealing a flave,
although he be an infant deditute of judgment, and unable to /peak.
This proceeds upon a favourable condruAion of the law, becaufe a
flave is a man in one relpeft, and in this view is not a property,
although he be fb in another refpcA. The argument of Haneefa and
Mobofnmedis that this infant flave is property, generally confidered,
as being capable of producing an immediate profit by the price which
would arife from the fale of him, and alfo of producing aySr/irr^ profit
by the fcrvice to be cxa^ed from him after he becomes capable of fer-
N z vice;
91 L A R C I N Y. Book Vnr.
\'ice; he is therefore profcrty at the fame time that he is alio a
man.
iy^^"" The hand of a thief is. not cut off for ftealing a bcok^ whatever he
Acaiing a the rctbje£k of which it treats, becaufe there the objed of the theft
^ a^'ui* "" ^^y ^ ^^ cQntents^ and that is not property. But yet it is to be
^memmii,) obferved that the hand is cut off for fteaUng a book of accounts^ becaufe
there the contents are not the objeA of the theft, but t)xt paper and
other materials of which the book is oompofed^ and that is appreciable
property<^
•r t €wr^. The hand of a thief is not cut off for itealing a cur-^d^^ becaufe
fuch an animal is in it's nature common' property *, and not an object
of atuchment ; and alfo, becaufe concerning it's being property there
is a difference of opuiion among the learned, and this occafions a doubt
upon that head^.
ttJrum, M. The hand ofa thief is not cut off for f!ealing a drum^ tabor ^ pipe^
fjmU^.^ ^ or pfaltety ; — according to the two difciples, becaufe, in their opinion,
thefe articles bear no price, whence, if any perfon v^ere to defhroy
them he is not rcfponfible; — and according to Haneefa^ becaufe the
perfon who takes them may excufe himfelf by faying that he took
them with a view to break them»
It islnmred THB'hand ofa thief IS cut offfor flealTng zfute made ofSihnanf^
by^»liiif t ^^^^ ^^^^^ ^^ ^^ ^^^ ^ .^ termed, in the HinJoofidnee dialed, a
Sakoon^ or Sawdn^ as fuch is an obje£t o( cujlody^ being held in efti*
mation, and not of a arnnon nature.
• Jlrei. Mnhah^UeJU^ that is, fra /# ingr 9m U toh huCfirtm/f..
The
Chap. H. L A R C I N Y. 93
The hand of a thief is ftruck off for ftealing a rmg&t with an or i thing (ct
emerald^ a ruby^ or a cbryfolUe^ as fuch arc rare articles, and not helcf pmtJT^'^
to be of an indifferent nature among Muffulmans ; neither are they
undefirable ; fuch articles, therefore, are the (ame zsfiher or gold:
The hand of a thief is ftruck off for ftealing utenfils made of ^^^'^
fvcod^ Tuch as z platter or a door (when not fet in a wait) or a trunk,
(although the hand would not be ftruck ofF for ftealing a piece of
timber^) — ^becaufe thefe articles derive an intrinfic value from their
fajhion^ and are therefore obje£ts oicuflodyx contrary to matts*^ as in
thcie the nuorkmanfhif does not exceed the value of the material of
which they are corapofed, for which reafon matts are fpread in places
where they are not incujiody: the learned, however, agree that am-
putation is incurred by ftealing Baghdad mM,%^ as in tbofe the value
of the worknumjblp exceeds that of the article. It is to be obferved,
that by ftealing a door^ or other article of timber not fet in the wait
of a houfe, amputation is incurred where fuch door or other article is
(b light as to admit of one man carrying it away, as thieve do not
covet articles of timber which are not portable.
A BREACH of /n^f , by a tniftee fecretihg any property com- ft i^ not in*
mittcd to his charge, does not mduce amputation ; as a depofit is not X^^tftJ^fl,
m cuHoAy of the proprietor. In the fame manner, the hand of a ^^^y^»^^
pftmderer^ % ^ of one vrho Jkatcbes away any thing, is not ftruck off, as '****
• Mouiiog any arddts iriikb are conftniAed- of fplie rods or fmh$t.
fAnik.aiimt:{fut.IUfiM.) ItintfattphesciridfliiiljmcaiislrMfiy'A^bythe
cootex^ biu Itbean a variexj ofochcr iiieaiiio(i,.fiick
t It is dUknltiodUKfigitilh betwten rapitu and nUivyi but diit and the next fet-
iMing term, (like Gi^/t, or a/trf]ptflif/i tf property,) hirc^ pcri»spi» a reference to m£6eeg.
Ifrevalioc aaocf die^^li*
Che
94 L A R C I N Y. Book VIIL
the aft of fiich is not theft ^ fmcc thofc carry away the property <?/rii^,
and not in afecret manner \ and the prophet has (aid, '* ^bc band of a
^^ PLUKDEREX, or a SNATCiiSR AWAY of property^ or a breaker
•* OF A TRUST, is not to be cut off'^
or liy ftealtng Thr hand of a Nibdjbj or plunderer of the dead, Is not ftruck off.
j^ This is the opinion oiHaneefa and Mohammed. Aboo Too/of zxA Sbqfet
hold that ampuution is incurred upon zNibd/h^ becaufe the prophet (aid
** Whoever Jlealetb a winding-Jheet bis bandjhalllcut ^;" — and alfo,,
becauie a winding-flieet is an objeft of cujlody^ and appreciable pro-
perty: the hand, therefore, is ftruck off for dealing it. The argu-
ments ofHaneefa tod Mobasmned upon this point are twofold: first,
the prophet has faid '^ The band of a Mookht afeb is not to be cut off\^^
and, in the dialeft oi Medina a plunderer of the dead is termed a il/ooiifi-
tafee: secondly, concerning the /re^r/y in a winding-flieet there
is a doubt ; becaufe the deceafed is certainly not the proprietor, as a
corpfe is mere dead matter ; and bis heir is not the proprietor, as the
neceflity of thp deceafed precedes the inheritance of his heir; and
there is al(b an uncertainty of the defign of amputation (namely warn--
ingj or determent^) being obtained in this cafe, as this is a fa£l of rare
occurrence. With refpe£t to the declaration of the prophet, quoted
by Yoofafzxs^ Shafeiy it is to be coniidered merely as a threat. The
fame diflference of opinion prevails ia a cafe of ftealing a winding-
(heet from a maufoleum, having a door fecured by a lock : or where,
a windlng-iheet is ftolen out of a coffin whUfl upon a journey *.
or from the Thsrs is no amputation for ftealmg from the public treafurjr,
/M€ ins- becaufe eveiy thing there is the conunoa property of all Muffulmanst
and in which the thief, as a member of the coomiunity, has a ihare.
• That is» iriiilft ctrrytng to die fiuntly pbice orintemen^ wliich maj fonetioMsi be
at the diftancc of fevenl dayt journey, ia which cafe the coipfe it put in a cofini for
otherwise the coffin is not ufed.
If
Chap. IT. L A R C I N Y. 95
Ir a perion fteal (torn property of which He is in pact owner, m or rrom pro-
this cafe amputation is not to be infli^ed. ^^c^h the
thief his a
ihare;
If a creditor Aeal from the property of his debtor, to the amount or by ir crv-
of his debt, amputation is not incurred, becaufe this is not tl>e/t^ but fl!^^)^^^^^
only an exertion of his right : and a Je/erreJ debt ^ is the iame as an ^'^'^*
undtftrrcd^ with refpeft to this rule. The fame rule obtains* where a
peribn fteals any thing which is originally his own property f , becaufe
a man has a right in whatever is his own. But if a creditor fleal from
his debtor any articles of his chattel property [that i&jgooJs or tffeSls^ ia
this cafe amputation is to be infliAed, becaufe a creditor is not at liberty
to take his right out of the debtor's goods or efFcfts, except by felling
ehem, with the debtof*s confent, and reimburfmg himfelf out of the
price. It is recorded from AbwiTfiafrfj^izt here likewife amputation
is not incurred, becaufe many of the learned hold that a creditor is at
liberty to feize the effedlsof his debtor for the purpofe of obtaining his
right, or by way of pledge. To this our dodlors reply, that as this
opmbn is not fupported by any authority, taking the goods as a
fatisfadion, or in the manner of a fledge^ is not admitted without a
plea : but, if the creditor fhould make a plea, by faying ^M took thefe
^* effe^s of my debtor only as a pledge in fecurity of my ri^t,**—
or, — ^' as a fatisfa£tion for my right,** — in this cafe puniihment is
remitted, becaufe he appears to have proceeded under a conception
grounded upon the oppofite opinion oi Ahto Toofrf^ as above recited.
The fame (fiffereuce of opinion alio obtains if the right of the creditor
confifl of^nm, and he.fleal deenSrs^ fbme bokUngthat he mturs am-
putation, aft <he deendts ace not his light,— ^whilft others maintain
** drA. Djni^MiwiUi mciniiiK a debt in the payment of which a delay it allowed for
a certain %ecified tiinc^ in oppofifioa to aI>)riMi^/f4 or /rni^f debt^diacis,adebt,^4K
Mi uftthiimani
t Ai having been kmwuf oChim by anodia for inftanee..
1 that
96 L A R C I N Y- Book VIIL
that hts hand is not to'be {truck off, becaufe nrniey^ (namely £rms
and dcendri) is all of one and the fame nature.
AmputMion jp ^ pcrfon fteal any particular article, and fufler amputation of
iKAed tyitu his hand for the fame, and after returning the property fiolen to the^
[he fanw'a^. Proper owner, again (leal that fame article, without, its having under-
cicie from the gone any change in the interim, his foot is not to be ftruck off for
Tuch repeated theft. This proceeds upon a fitvoraUe conftru£Uon of
the hw. Analogy requires that his foot be cut off; (and there
is an opinion oiAboo Yoofaf xtcovAcA to this efied ; and fuch alfo is the
do£trine of Sbafei\) becaufe the prophet has (aid '^ If be again Jical^
*' let amputattm Be again tnJliSed upon hm*C^ where no manner of dif-
tin^tion is made with refpe& to the .article (lolen in theyZron^ theffc
being the (ame as that which was (tolen in t\it Jirft^ or not, as the
feconi is a complete theft the (ame as i^xtfrfl^ and even more atrocious^
inafmuch as the thief, having already fufiered puni(hment, yet dares to
repeat the very (ame offence. The offence is indeed the (ame as if
the owner were to (ell the article (blen to the thief, and again to pur-
cbale it of him, and the thief then to fteal it of him a feoond time.
But the reafons for a more fitvourable conftrudion of the law herein
are /tiw^A/:— -virst, in con(equence of the amputation of the thiePs
hand, the prote£Uon * of the thing (blen ceafes,— that is, in confe-
quence of cutting off the thiefs hand, the article ftolen no longer
remains protected in behalf of the right of the individual, (as (hall be
hereafter demonftratcd;)— and although, on returning it to the
owner^ it revert to a (late of prote6kion, yet an apprehen(iQn of the
proteftion having ceafed (Hll remains, judg^ig from unity oi right of
property and of fubjed^ and from the exiftence of the eaufe of the
failure of protection,- -'.hat is, judging from the circum(bnces of this
property being that (ame individual property the protection of which
had been already dcftroyed by the former theft and fubfequent punUh*
• Ar0k Ifmut. Our lexicoDfl givt Tutimen u die ertiinsluA CtJIitoi mS die icc^Jlmot
meantfig of it.
ment,— •
Chap. II. L A R C I N Y. 97
mcnt, — and of the prefent proprietor being the fame who yt^% formerly
proprietor, — ^and of the caufe of the failure of proteftion (namely,
the amputation already inflidled) being ftill cxiftcnt : contrary to the
cafe adduced hy Sbafei^ becaufe in that cafe the right of property has been
of a different nature^ as being derived from a different fource^: —
SECONDLY, the repetition of the theft of the fame article by the fame
thief, after his hand being cut off, is a circumftancc of rare occurrence ;
wherefore the inftiftion of pimiftuiient a fecond time can anfwer no
end; for the end of punifhment is to reflrain from guilt; and that
end is obtained without a/crro/r^/ infliiftion of puniHiment; the cafe in '
queftion being analogous to one where a pcrfbn who had been punifhed
for (lander again accufcs the flandered perlbn of the fame faft of
whoredom with which he had before charged him, in which in-
ftance a fecond puniflimcnt is not incurred by flanderer ; and (o here
likcwife, — ^What is now advanced" proceeds upon the fuppofition that J|J|J'* '^J^*^*
the thing ftolen does not undergo any change after being returned to f***<' « tiie
the owner:— but if it be changed from it*s former ftate, (as if a tiveen the "
perfon were to fteal thread, and fuftcr amputation, and return .the '^*^"'
thread to the owner, and the thread be afterwards woven into dotb.
and the thief ihould then fteal the cloth,) the thicP^ foot is cut off,
becaufe the thing (lolen has been altered by tveaving ;- (whence it is
that if a perfon feize a parcel of thread by Gba/h^ [ufurpation,]
tind weave the thread into cloth^ he becomes proprietor of the cloth
in confequence of weaving it :-~and this is an. example* of change^
applicable to any fubjeft Whatever :} and where the thing ftolen under-
goes a cBahgCj the doubt arifmg from unity of fubjc£^, and amputa-
tion on account of the former theft of itj is removed ; wherefore
amputation is repeated, by cutting off the foot.
• Tht f§ur€e or t^uft^ of the £^ right of property being purcbafe frm thi thitf^ which
it totally diftina tnd different from fhe CMife of the firfi or •riiinal right of propcny,
whatever that may have been*
Vol.. II. O CHAP.
98
L A R C I N Y.
Book VIH.
CHAP. III.
Of HirZf or CuJlody\ and of taking away Property thence*
There is no*
imptttsitioti
for ftealiiig
fnm % fa'
or Midi
or from tn/
nrohibttedie-
ution;.
Ira perfbn ftcal any thing from the property of his/ati^r^ moiber^
' or fitly his hand is not cut off; bccaufc any of thofc is at liberty, by a
mutual right ofufufruSl^^ to take and ufc the property of thp other;
and' alio, becaufis the ef&dsvof either of them is held, in virtue of this
mutual right, to be within the cuftody of the other : and in the
fame manner, if a perfon fteal from the property of his relation within
the prohibited degrees, his hand is not cut off, for t\ic ficond of the
above reafons : contrary to. the cafe of perfbns who are mtxAyfrUnJs^
for if one of thele were to (leal from the other, his hand is cut o(F,
11 nee bis a£l of theft puts aa end to their friendihip. What is now
dated refpedting the cafe of theft from a relation within the prohi*
bited degrees is contrary to the doftrine o( Sbafii^ he accounting die
affinity of all ex(:ept parents and children to be a difiatit affinity, as
was before mentioned, ia treating of the emancipation o£ flaves.
or from a ^' ^ peribn fteal,. out of the- houfe of his relatioa within, the pro«>
'^JSISu^'^* hibited degrees, the effcfts of a ftranger, his hand i». not cut off;
relation*! but if he fteal the effefis of a prohibited relation out of the
It u inciirred Jlrongcr^ houfe, his hand, is ftruck off; hecaufe' in the yarmrr
from a^i^hi. ^^ ^^^ ^^^^ ^ ^^^ ^ violatioa of cuftody whereas ia the latter it
bited relation
inaftraafec**
boiafe;
is fa
• JreH. Mljk^ llttnny maniog « e mutuat Bhtrti:''
Chap. III. L A R C I N Y. P9
If a peribu commit a theft upon the property of his fofter^mothcr, ®' ^ •
his hand is cut oft This is the Z^iir Raw^'ei. It is recorded from
Aboo Taofaf that his hand is not to be cut off, becaulc men are at
liberty, at all times, to enter their foftcr-mother*s apartments without
form or permifiion : contrary to the cafe of a fodtv^jijier ; for the
reafon which operates in the inftance of a {odcT^moiber does not here
cxift« The ground upon which the Z/ihir Rawdy<t proceeds hereia
is that although frobibiiioft fubfiil between a man and his fofter-
mother, yet there is no relattmjl^ip betweea them ; and the prohibi-
tion which exifts independent of affinity (fuch as that occafioned by
nvboredom^ or touching in luft^^) has not the full cficCt of prohibition
by affinity, whence, if a man were to fteal any thing, out of the houie
of the daughter of a woman with whom he had committed whore-
dom, his hand would be cut off, although between him and the
daughter prohibition exift. Byftealing, therefore, from the property
of a fofter-mother, amputation is incurred. The foundation of this is
that fofterage is not conunonly a thing of notoriety^ wherefore men
have not a mutual right of ufufrud with theiry^^r*mothers, in or-
der to avoid giving room for fufpicion : contrary to the right which
fubfifts with refped to the natural mother.
If, of a hu(band and wife, either party ihould fteal from the pro- I< » •^ >»•
perty of the other,-^r a flave from the property of his mafter, or acsiinr from
of his mafter*s wife, or of his miftrefs*s hufband,— in none of thefe ^Ji^**^
cafes is amputation incurred, becaufc in all of them the thief is, by «^<rorM//.
cuftom, at liberty to enter the houfe or apartment of the proprietor, m^s n^iifi.
If, moreover, in the iamc cafe of a hufband and wife, either were to ^Mh^^'^
fteal any thing from a place of cuflody bdonging exdufively to the
other, (as if, out of an apartment fblely referved to the other*s ufe,
and in which they do not both relide,) in this cafe alfb the hand of
^ Sec Book U. chap. a.
O 2 the
loo L A R C I N Y. Book VIII.
the thief is not cut off", according to our doctors, (who in this in-
flance differ from the opinion of Sbq/iij) as there is a mutual right of
ufufru£t between hulband and wife, both according to cujiom^ and
7l(o by cofiftruil ton ^ for the contract of marriage demonflrates this mu*
tual right of ufufrud between them. This diflent of Sbafei^ in the
prefent cafe, correfponds with his difference of opinion with refpe£t
to giving evidence ; for the evidence of a hufband or wife regard-
ing each other is not admitted by our dodors ; but by Sbaffi it is
admitted.
nor by a If a mafter fteal from the property of his Mokdtib^ his hand b
?^^J^j^f, not (buck off, becaufe a mafter has a right in his Mokatib^s acquiii-*
hukdtih. tions. And in the fame manner^ the hand of a thief is not cut off
who fteals any thing out of publick plunder^ becaufe in that he has a
fhare. . This cafe, with its reafoning, is uken from Ale<.
•
Twodirmot Custody is of two kinds : firsTv that which b cufiody from its
^I^,^^ own nature^ fuch as a houfc or Serai ♦ ; secokdlt, cufiody^ by per*
fonal guard.— (The compiler of the Heddya obferves tlut cuftody
is an indifpenfable requifite to the eftablilhment of larciny, iince
without cudody the circxmifiance of fecreily taking awcy cannot be
c(labli(hed.) Thus cujlody b fometimes conflituted hj place ^ that b by a
place conflrufted or appomted for the fafe keeping of goods and effefts^
fuch as a boufe^ Jhop^ tent^ or trunk ; and it iialfo fometimes coniH*
tuted by perfonal guard, that' b, by perfbnal watch over the pro-
perty, fuch as if a man were to Xit in the ibiddle.of the highway, or
in a mofque, having his effeAs near him, in which cafe thofe efie£ls
are in keep or cujlody ; and the prophet once cut off the hand of a per-
fon who had ftolen . a quilt from underneatK the head of Sifvum^
whild he lay afleep in a mofque. It is to be obfervcd that an article
* A quadrangular building, having (heds or houfes all opening into the fquare within.
A high wall furrounding the whole forms the back of the houfes or (hops j and the only
entrance is by one or (at moft) two gateways.
I Dvhich
QiAP. lir. L A R C I N Y. 101
which is in cuftody by place is not in cuAody by perfonal guard:
wd this is approved, fince that article is in cuftody, without any
perfonal guards by the cuAody oi place ^ (fuch as a houfe, s^nd lb
forth,) although that place be without a <&ar, or have a door (landing
open, (whence if a perfbn (leal any of the furniture from that place,
his hand is cut oit,) becaufe a houfe or fuch other editice is ere^ed for
the purpofe of fecurity. The hand, however, is not to be cut off unlcfs
the article (lolen be carried out of the houfe, for until that happens it is
considered as in the hands of the mafter of the houfe : contrary to things
in cuilody by perfonal guard, for here the thiePs hand is ftruck ofT
fi>r the mere iaiing^ as on the inftant of taAing the property of the
proprietor is deftroyed ; wherefore the larciny is completed by the
taAifig alone. It is to be, further obferved that no diftindion is here
made between th^ keeper being ajleep or awake ^ or the effe£ts being
iMu&r him, or near him: and this is approved; becaule a per(bn fleep-
ing near his effe^s is accounted to be watching them, in common ac-
ceptation;, upon which principle it is that a truftee or borrower is
not refponfible, where the truftee fleeps near the depofit, or the
bornxwcf zicar the article borrowed, in cafe of any accident befalling
it, faecaufi^ their fleeping is not held a dcfertion of the charge of that
property : contrary to what is adopted in the Fatdvee ^, for in fome
decrees it is iaid that if the truftee or the borrower lie down with the
depofit or the loan under his head, and it be (lolen, he is refponfible.
If a perfon fteal things out X)fsi place which conftitutes cuftody, VarioQicurc^
fuch as a ^01^,— or from a place which does not conftitute cuftody, ^^^'/^^
whilft.the proprietor is near and has them within his guard, — ^his hand
is ftruck off, becaufe he has ftolen property from one of the two fpci*
cies of eufioiy.
• A colfcaion of decreet or aedfioos of the Mujfutwm Mifiti or Kaxas. There
ait nuay law faibokft which bear this tide*
If
w» L A R C I N Y- Book VIIL
It a perfon ftcal property out <if a batb^ or from a houfe which
the owner allows all men indifFerently to enter^ his hand is not to be
cut off, becaufe general accefs is allowed to a bath by cujlimi^ and to
- a houfe by a particular permiffion, whence there is a doubt with
re/peA to fuch a place couditutingrir/p/^. This is where the things
are ftolen out of the bath or houfe during the exigence of fuch gene-
ral leave of ingrefs : and the iame rule applies to (hops- or Carauan-
Serais^ becaufe the inafter allows men to enter a (hop. or Caravan-
Serai: — ^but yet, if a perlbn were to fteal any thing therefrom during
the night, his hand is to be cut off, as thoie places are conftrucled for
the proteclion of proi>crty, and people are allowed to enter them in
the day-time only.
If a perfbn fleal goods out of a moique, and the proprietor be near
thofe goods, the hand of the thief is {(ruck off, as they are under
cuftody by per fmal guard: but if a perfbn (leal goods out of a bath or
houfe the owner of which allows people to enter it, and the proprie-
tor of the goods be near them, the thiePs hand is not cut off. The
difference between a mofque^ end the bath or houfe now mentioned,
is that a mofque is not erefted with a. view to the fecurity of pro-
perty^ wherefore cuftody is in that cafe regarded as conftituted by
perfonal guards and not by means of the place: contrary to the boufe
or bath^ as thefe are conftTufted for the purpofeof fccority, wherefore
cuftody there is not regarded as depending upon perfonal guard :
and concerning (^h a place Conftituting cuftody there is a doubt, on
account of the general permiftion of ingrefs; for which reafon the
thief's hand is not ftruck dS.
iiflipttutloa Iv a gueft fteal the property of his hoft, his hand b not cut off*, as
cyrS»i"» ^^^ houfe of the hoft is not a place of cuftody with refpedl to the
^\^^' gueft» becaufe the gueft is alk)wed to enter it,— and alfo, becaufe a
gueft is as an inhabitant of the houfe of his hoft ; the aft of the gucft^
therefore^ is treachery^ or breach cftruft only, and not theft.
If
CHAr. III. L A R C I N Y. 103
If a peribn ftcal any thing tn a Scrm^ and do not carry it endrdy ^^l ^^
out of iuch Serai ^^ his hand is not cut off; becaufe the whole Serm JSiek the
is one place of cuftody, wherefore it is rcquifitc to the eftablilhment SdoiIrS^
of the theft that the thing ftolen be carried quite out of the &rW; — ^ «Ker
and alio, becaufe the Serai and whatever it contains is in the hands ** ' ^'
of the mafter of it^ by conftrudion, wherefore there is a doubt
whether the thief has yet conveyed it away. If, however, the Serm micfi iIm s^
be one of thofe which contain a number of independent habita- oiiviy'cMil
lions, the occupiers of which have no common u(e of the area or ftniAcd.
iquare, excepting merely as a faffage or thvrwgl^arf^ and a peribn.
were to fteal any thing out of one of thefe habitations, and' carry it
forth into the area, his hand Is to be cut off, becauie every one o£
thefe habitations is (with re^<t to the inhabitants) % feparate place
of cuftody; for which reaibn, if one of thefe were to fteal. any thing,
out of the lodge or habitation of another, he incurs amputation.-
Ir a thief break dirough the wall of a houie, and enter therein, OrfbsT lir
and take the property, and deliver it to an accomplice (landing at the ^^*
entrance of the breach, amputation is not incurred by dther of the
parties, becaufe the thief who entered the houfe did not carry out the
property ; and that property, before his cming w.^ fell into the poi^
ieilion of another, which pofleflion is regarded; and the other thief
has not committed any violation of cuAody, as he did not enter into
the place of cuftody; and hence the full (enfe of lareii^v^ not appU«
cable to the afi of dther of them. It is recorded from Ai^o Tanfef
that if the thief who goes vnthin the hou(e put hb hand through the
breach, and the thief without thus take thtf property finom him, the
hand of the former is cut off: but if he who remains nmtbmt put his
handthrouglithebreacb into the houfe, and thus take the property from
him who is wiiUn^ each of them incurs amputation. This example
is bonded upon another which will be hereafter recited.—- If the:
^ Tbtt is^.Mt«r te oeiss gM sftbi 9ia4ianKlt.
6 thief
104 L A R C I N Y. Book VIII.
thief within throw the property out, through the hole, into the high-
way, and then come forth, and take it away, his hand is to be cut
off. Ziffer (ays that his hand is not cut off, becaufe the a£t of throw-
ing the property out upon the highway aflbrds no pretence for am-
putation, any more than if he were to go away wUbout carrying off
the property, or than if another perfon were accidentally to come
and carry away the property from the place into which it has been
thrown, which would not occafion amputation. Our doctors ailert
that the throwing out of the property is a contrivance commonly
pra£li(ed by thieves, as it may be impoflible for a thief to get out
with the goods or efie^s in his hand,— -or, in order that the thief
may be unincumbered, and at liberty, either to oppofe the inhabitants
of the houfe, or to efcape ; and as, in the cafe in quedion, the property
does not fall into the pofleflion of any other perfon, the throwing out
and carrying away are both confidered as one aS. But where the
thief CiJmcs out of the houfe, and goes away without carrying off
the property, he ftands as the iefiroyer of that property, and not as a
thief. And if the tliief load the property upon an afs or other animal,
and leading the animal, thus take the property out of the houfe, in
this cafe his hand is cut off, becaufe the motion of the animal is re-
ferred to the thief, on account of his leading or driving him.
If a party, or band of robbers, come within the place of cuftody of
any perfon, and feme of them take away the property whilft the
others ftand by, they all incur amputation. The compiler of the
Hedaya remarks that this proceeds upon a liberal conflru£tion of the
law ; for analogy would fuggeft that thofe only incur amputation
who take and carry out the property^ (and fuch is the opinion of
Zijer^) becaufe, as they take the property out, the definition of larciny
applies only to them.— -Our dodlors, however, aflcrt that they are all,,
by conlh-uflion, equally concerned in carrying out the property, as
being all aiding therein, in the fame manner as in the greater Ipecies of
Jarciny, (namely, highway robbery^ where feme take the property,
whiUl:
%
Chap. lU. L A R C I N Y. I05
whilft others (bnd by prepared for an attack; becaufc it is cuflomary
for ibmc to carry off the property, whilft others (land ready, with
arms in their hands, to refill the proprietor ; if, therefore, thefe were
not liable to amputation, the door of puniflunent would be doled
If a peribn make a breach in the w^l of a houfe^ and extend his
hand through, and in this manner take any thing out, dill his hand
is not ftruck oflT. This is the ZMir Rmvdyet. Jiboo Toqfaf has (aid
that his hand is to be ftruck off*, becaufc he has taken the property
out of a place of cuftody, and as this is the defign of theft^ his en-
trance into the place of cuftody is not requifite ; in the fame manner,
as where a thief puts his hand into die chcft of a banker, and tak«
out monqTf vfiibaui himfelf entering the cheft; in which caie he
forfeits his hand; and fo here likcwife. The reafbn for the decifion
in the Zabir Rawiyet is that the eftablifliment of larciny n{i% upon a
cwipkte vioIaitM ofcufiodj^ in order that no doubt may remain re-
{pe£ting it ; and the violation of cuftody is cwnpUtely eftabliflied only
where the thief enters the place of cuftody, and where the place ad*
mits of this being fuppofed: as, therefore, it is cuftomary for thieves
to enter into the place of cuftody, regard muft be had to that dr*
cumftance. It is otherwife in the caie of a cbiJL^ as there the btmi
only can be introduced, and not the whole ferfim : it is otherwiie^
aKby in the caie before obferved, of ibme thieves carrying away the
property whilft others ibnd by, prqiared tooppofe the proprietort as
this is die cuftom of thieves.
Ip a perfon keep his money in his ileeve, and tic a knot upon it, in CdbpTtkcft
fudi a manner that the knot is on the wiJUk^ and a cutpurfc come, ^^JJ^JJ^
and tear off the part of the ileeve which contams the money* and take J^
it away, he does not incur amputation. If, however, a perfon keep his
money in his ileeve, and tie a knot upon it, in (uch a manner that
the knot is infiie the fleeve, and a cutpurfe carry it off by putting
his hand under the Ileeve and tearing off the part which contains the
Voi^II. P money.
io6 L A R C I N Y^ Book VIIL
money, Co taking it aWay, in this caie his hand is to be ftruck off,
as he here introduces his hand wiiAm the place of cuftody, (namely
the fleeve) whereas, in the former inftance, he took the money from
Without. If, on the other hand, he do'not tear away the part which con-
tains the money, but open or untie the knot, and (b take away the
money ^ the rule is reverfed; that is, in tlicfrfi of thefe cafes his hand
is cut oflT, but not in the fcamd. The reaibn of this is that, in the
former ihftance, where the knot is on the outfide^ by opemng it the money
falls within the fleeve, whence he is under a neceflity of putting his
hand within thefleeve, in order to tdce it away ; amputati<>n is therefore
incurred, becau(e here he takes the money out of a place of cuftody, and
thus commits a violation of cuftody : but in the Uuter inftance, where
the knot is i^fide the fleevcr by opening it the money appears outfide the
fleeve ; and as he thus takes it from the outfide^ and not from within^ his
taking it is not a violation of cuftody ; his hand, therefore, is not cut oft^
as he has not committed a violation of cuftody. It is to be obferved that,
by the word 5/m/, in this work, is to be underftood merely the pkcc
where the money is depofited in the fleeve, not a ieparate bi^ or
purfe. It is recorded from Jtboo; ToofrffStat io all theie cafes^ ampu*
tation is incurred, becaufe the property is in cuflodf^ — with tbeproprit*
tor^ in the one cafe,, and in Msjhrue^ in the other. Our do&ors, on
the other hand, aflert that the n^A^, in the cafe in queftion, b con-
ftituted by the perfon's^n;^, as he trufted ib it for fccurity ; * and his
defign in putting the money these is conveoiencet la going fram
place to place, and eafe whilft at reft^ wherefore the^Smrrnr^ of it is
not his defign, YiV&JUeve not being ooniidered as a bi^.
Aapnudoii If a perfon ftcal M^out of a Jlrit^ of camds^ or fteat a ioadtnoi
!td^s^' on^ of them, his hand b not cut off,, becaufo with re^ed to the camel
^a^^ or the load being in cuftody thctc is a doubt. The reaibn of this
candis or a is that the defign of the drivers and; riders is^ convenience upon the
cMd »ioad« JQ^j^igy^ j^^j jIj^ tranfportation of their goods, and not tht fecuri(y or
frotcffion of them. If» however^ there be a peribn attending the loads
1 for
Chaf. nr. L A R C I N Y. 107
for the puq)o{e of looking after them, the learned iity that in this ca(e
the hand of the thief muft be cut off! If; alfo, the thief break open the !^£|^be
package, and take its contents, his hand is ftruck' off, becaufe in fuch ^rakc open,
a caie the f adage conftitutes thcctfflcJyf as the defign in putting the
goods there is the iecuritjr of them, in the fame manner as a fleeve ; in
this cafe, therefore, the definition of theft; namely, taiing property
from cujloiy^ is applicable; and fuch bemg the cafe, his hand is cut olT
ofcourfe.
Ir a perfbn fteal a bag or package, containing goods, from a place Cafe of Oicft
which does not conftitute cujloijf^ (fuch as the highway C) whilil the (IfaL^^,
proprietor of the effects is watching or fleeping near them, his hand
is flruck off, becaufe thofe goods are in cuftody by means of the guard
of their owner, as regard is had to the cuftomary mode of watching
things, and the owner of the bag fitting near or fleeping upon it is ac-
counted to be in guard of it by cuftom : — ^his fleeping juar it is
alio, ftxun jcuftom, accounted as guarding it; — ^this is approved
doflrine.
C H A P. IV-
Of the Manner of cutting off the limb of a Thief ^ and
of the Execution thereof*
1 HE right hand of a thief is to be cut off at the joint of the wrifl, ForAefrft
and the flump afterwards cauterifed. The amputation is on die y^^,^
authority of the text of the Koran formerly quoted; and it is to be to be inck
the rigl^ hand, on the authority of the reading diVm hUfiaad^ who ^'
reads the paf&ge -alluded to— *^ cut off their eight hands/*
Pa The
io8 L A R C I N Y. Hook VIIJ.
The amputation ss particularly dircAed to be performed at the^nrtp^
becaufe the word yed, in the Koran, fignifies the whole arm up to
xYit Jhoulder^ and as the wrift joint is included therein, that is certified,
wherefore in that ienfe the text is followed :-^moreovert it is related
of the prophet, in the NakUSabecb^ that he ordered the hand of a
thief to be (ifuk off at the wrift. The cautery is to be applied to the
ftump ; becaufe of a precept of the* prophet, ** Cut of the band of a
** thi^i and cauterife the part \^^ — and alfo, becaufe, if the cauteiy
were not applied, the amputation might prove deftruAive ; and pu«
nifliment b iiiBi£ked witk a view to warning and dofttment^ but not
Uni^St ^^ deflruSton. — If the thief who has thus been deprived of his hand again
^>^t "^ commit a theft, his left foot is to be cut off! If, however, he again
yondXt the be guilty of theft, z third time, he is not to fufler any further muti-
^^y^^g^ lotion, but muft be imprifbned, and held in confinement, until he re-
pent. CQnceraing the thne fufficient to tStSt and confirm fuch
repentance there are various opinions; ibme fayi&g that this is to be
left to the judgment ot tht -Lndm or Kdzee i—ot\xtx%^ that the imi-
prifonment Ihould be fir one year i-^^-OLCid others^ that it ought to he
until death ; — ^whilft others, on the other hand, maintain that he is to
be held in durance until fuch time as repentance be afcertained from
his converiation and behayiow. What is here advanced,-— «« if he be
*^ again guilty of theft, a third time, he is not to fuflfer any further inuti-
*' lation, but muft be impriioned,** &c. proceeds upon a fiivourable con*
ftruftion of the law :-*and our modem dodlors fay that ^ineer^ or
difcret&onary corredion, may.alfb be bfli&ed. Shafei fays that for
the tlurdofknct the left hand is to be cut oflT, and, fbr thzfiurtB^
the right foot, becaufe the words of the pwjtfiefr are ** ff^a man com^
<* mit a theft cut off one rfhis Bmbs ; and ^ he again commit the famci
^^ cut off another limh; and if he again comm(i the fame^ a third tim^
«* cut off another limh ; and ^ a fourth time^ another; aud^he com*
'« mit theft a fifth time^ put him to deatHr^Thect is alfo an ordT-
nance of the prophet, ftill more partiailariy according with the tenets
of Shafn upon diis heady whidi is meatiocied by Aboo Hareera^ who
reports
Chap. IV^ L A R C I N Y. 109
reports the prophet to have faid, ," Wboro<r commits a theft ^ his right
^^-^ hand is to be cut oJ[\ itnd if he again comnit theft ^ his left foot \ and
** if^&^^^9 ^^ ^^fi i&^^; andifagain^ his right fool : hecaufe the third
•* th^t is an offence in the fame degree as tbcfirft^ and is even more atio^
** cious\ wherefore for the third thence the law awards funifhment in
*' afuperior degreed The arguments of our doftors upon this point
are threefold: first. Alee has declared,, refpefting a perfbn who had
been a third time guilty, of theft, ** WMfl Hive by the favour ofGod^
*• Jball I not leaoe him a hand with which to feed himfelf or afoot with
" which to walk /" — the propriety of which declaration being dif-
puted by (bme of the companions, jitee argued the point with them,
and overcame their fcruples; wherefore they all fubfcribed to his opi-
nion, and coniequently the whole of them are agreed concerning it :
SBCOHDLT, the amputation of the left hand in the third inftance,
and of the right foot in xht fourth^ is in faft a deftrudtioa of the
tliief, finceby cutting off the left hand he is totally deprived of one
faculty, and punifliment is inftituted with a view to determent and not
to defruSlion: thirdly, the repetition of theft a third time is a thmg of
r^r occurrence, and determents are inftituted concerning things which
are of frequent occurrence. It is otherwife in retaliation, with refpeft
to the members of the body ; for as that is si right of the individual ^,
fo the individual is to exaA it, as fiir as may be practicable, on his
own behalf^ As to the tradition adduced by Shafei^ it is either
luiworthy of being ferioufly regard^, (as having been ridiculed by
TCab&oee^ or elfe it is to be confidered merely as a threat.
If the left hand or ri^ foot of a tliief be paralytic, or have been thtt^hmi
loft by accident, his right hand or left foot muft not be.cdt off,, fihc^ «rr^Z/to !•
by the lofsof thefe he is deprived of one of his Acuities of walking pMudhlkl
or carrying. In the fame manner, the right hand of a thief muft ^^JJ^^
not be cut off where the thumb or any two fingers of the left hand hfiM^
• IaoppoGtioatopumflncnt,wiuchitarig1ttorGQ9,(n^o^
are
ito L A R C I N Y. Book VIIL
are loft or ufelefs ; becaufe in fucfa a ftate- the hand is held to be in-
capable of peiforming its officer : but if only m finger of the. left
hand be ufideis or loft, the right hand maybe cut off, becaufe there
b no apprehenfion of the hand bemg di&bled from carrying, by the
deprivadon of mt finger only.— It is Qtherwife where there are two
fngers wantmg; as twofngers are held to be equivalent to a ibumb^ in
ref^)e£k to the capacity of carrying ; hence from the want of them it is
to be apprehended that the hand b uieiefs.
^^2^J|>^^^ Ir the mapftrate order the executioner to ait ^thc right bandtf
ifigoflTchei^ A ctrtatH^tbkf^ and the executioner wilfully cut oflT hb iS^ hand,
of lL'"f^ nothbg b incurred [by the executioner,] according to Haneefa. The
Umc fv$Mi. two difciples allege that where the aft of the executioner b inten^-
tiatia/f he b refponfible for the hand, but where it b 6y mi/laJte^ he
incurs no retribution. Zifir £iy% that in a cafe %AmfiaU he b alfb
refponfiUe ; and thb b agreeable to anabgy. ^jwSfiakt b here meant
an error in jn4pnint ; in other words, that the executioner fuppoies or
conceives it b equally lawful to cut off the kft hand, oonfidering
the text of the AT^tm, according to which it would appear that either
nay be ffaruck ofFindifierently , the right not betug particularly fpedfied.
Where, however, the executioner mifbkes with refpcft to the hand
of the thief, ftying afterwards '* I fuppofed thb to be the right hand,**
thb b no excu^ fince ignorance b not admitted as an cxcufe in things
which are evident. (Some doftors allege that thb alfo is admitted
as an excufe.) The argument of Zjfir b that the executioner has
cut off an hand the amputation of which was not awarded ; and as a
mifbke which afiefts an individual b not an objeft of remiftion, he b
confequentlyjefponfible: but to thb we reply that the executioner
has only been guilty of an error in judgment arifing from the text in
queftion not having particularly fpccified the right hand ; and an error
in judgment may be forgiven. The argument of the two difciples is
that where the executioner afts intentionally^ he unrighteoufly and
without exphnation cuts off a limb the amputation of which is not
awarded;
Chap. IV. L A R C I N Y, irx
awarded ; and as, in Co doing, he commits a wilful and defigned jnjnry,
he cannot be forgiven, although his aft proceed from an error in-
judgment:' — it would appear, alio, that retaliation is due; jrct that
is not due, but is even prohibited^ on account of the doubt refpefting
his judgment. The argument of Haneefa is that, although the exe-
cutioner has deftroyed one limb, yet he has left another limb of the
fame kind and of greater value, whence this privation cannot be
accounted deJlruHion ; in the fame manner as if evidence were given
that a perfon had fold certain effeAs for an adequate price, and the
witnefs were afterwards to retraft from his evidence, in which caie
nothing lies againft the witnefs, fincc, although he have deftroyed the
other's property, yet the proprietor has received an equivalent in re-
turn, in confequence of the evidence. Agreeably to . this argument nor- h My
of Haneefa^ it in the (ame manner follows that, Mzny other than the exe- Mecmiolier
cutioner were thus to cut off the thieTs left hand, this other is alio frtt ^^^^
. under cm
from refponfibility : and this is approved.— If the (hief reach forth his iame oicua^
left hand, and fay •* This is my right hand," — and the executioner ^**^'
ftrike it off, he is not refponfiUe, according to all our doctors, fmcc
he here a£ls by the thiefs diredtions. — It is to be dTferved that where ^} *« *fef
the executioner wilfully cuts off the left hand of the thief, the latter nr^fiUe
is refponfible for the value of the property ftolen, according to all our S'flSiooorl
dodors: — ^according to the two difciples, evidently, for as they tyiKolea.
hold that, in a wilful cd&^ the executioner is .refponfible, the ampu-
tation is not, in faft, zpunifhmentfor theft ; and punifhment not being
inflided upoa the thief, he is refponfible for the property ft<^en» fince
agreeaUy to their tenets amputation and refponfibility for thd property
itolea cannot be united :-^-aad according to Hanetfa^ becaufe in his
opinion alfo the amputation of the wrong hand is not the funifbment
eillattedfor theft i for the realbn why he holds that no re4K)nfibility
attaches to the executioner is not becaufe the amputation of that hand
h z puttifhment for theft^ but becaufe he has, in lieu of that hand,
left another more valuable, as has been already ftated: and in a caie
oi error alfo^ the eficft is the fame, whence in this cife likewife Haneefa
confiders
iia L A R C I N Y. Book VUL
confiders the thief a$ relponfible for the property Aoietit for one reaibn,
becaufe the amputation of the wronghand is not» in faft^ funi/bment for
theft \ — ^but there b another reaibn why refponfibility for the property
ftolen does not lie agamft the thief, namely^ becaufe puniftunent for
theft is inflidedf according to the bed of the executioner's judgmentt
in conformity with the text of the Koran^ which is generally expreilcd,
as h^ been already dated.
Ampou^ A DSCiLXB of amputation cannot be pa&d upon a thief, unle(s the
mwarded, nor perion from whom the property was ftolen be prefent, and proiecute
b^rtrc^^ for the theft, becauie proiecution is ei&ntial to* the manifeihtion
S"?'*^IL -^^ ^^» *^^ wi^i^ refpeft to this rule, it matters not whether
injwedpir^. the theft be eftablilKed by confeffiim or hy evidence^ becaufe an offence
committed againft the property of another can in no way be rendered
mauifeft but by the proiecution of the aggrieved ^. This is accord-
ing to our doAors, Sbrfei maintains that* in cafe of confeffion^ the
preience or profecution of the perfon robbed are not requifite: it is
related, however, in the Faitabal^^eidoor^ that this was not a tenet
of £&^i; but that he held cwfeffion to be in all refpe£ts equal
to evidence.— It. is here to be obferved that, according to our doflors,
a fentence of atnputation cannot be carried into execution unlefs the
perfon robbed be prefent, becauie in puniihment execution is fupple-
mental to the Ki%ee\Atcxtts
Caletortheft If a perfon fteal a depoiit from the truilee, or ufurped property
fj^l^wb' from the ufurper, or property ufurioufly acquired from the ufurer,
^^'^ (as if a perfon were to take twenty dirms in lieu of ten dinns^ and
make ieizin of the iame, and another were to ileal from him twenty
dirms^ including the ten ^o acquired,) theie are at liberty to profecute
^ From dus it appears thai the confeiSoa of a thief it not attended with aoj coofe-
qucnct^ uiileft the perfim robbd coine forward to profecute.
the
Chap. IV. L A R C I N Y.
the thief and to procure the amputation of his hand. In the fame man-
ner alfot (in the czfes oUnifl^ox oiufurfation^ t\ic praprietor of the dc-
pofit, or of the property ufurped, is at liberty to proiecute the thief,
and to procure the amputation of his hand. Ziffer and Sbafii fay that
the thief *s hand is not be ftruck off at the fuit of the ufurper or
the truilee. The fame difference of opinion obtains where a perfbii
fleals property from an birer^ or Sorrower^ or Mazdriij or a holder
oiBazai flock, or a perfon having pofleflion of property with a view
to purchafe, or the holder of a pawn,— -or from any perfon in whofe
hands property lies, and in whom the charge of it is vefled, although
he be not the aftual proprietor, (fuch as the truflee of a charitable ap-
propriation, or z father^ or executor^) — in all which cafes the hand of
the thief is alfo flruck off at the fuit of xht proprietor of the property
fo flolen.— In the cafe of a/owx, however, the thiefs hand is not to be
flruck off at the fuit of the pawner, unlefs the property flolen remain
with the thief after payment of the pawnholder*s debt, becaufe the
pawner has no right to the property or claim upon it until thedebt be paid.
It is a rule with Sbrffi that the truftee^ ufurper ^ borrower^ &c. cannot
fue for the recovery of the property; and accordingly, that the thief
cannot fuffer amputation at their fuit. Z^er &ys that as their autho-
rity toprofecute, for the recovery of the property, is cfhUiihed, from
the neceflity of protecting it, they cannot poflefs the fame authority
with refpe£t to ampuiathn^ for if the thtcTs hand were cut off at their
fuit, the proteff ion of the property would be defeated, fince if the pro-
perty were deftroyed whilfl in die thiePs poUeflion, he wouU not be
refponfible for it aftdr having loft his hand, and therefore, if his hand
were cut oflFat their fuit, the proper^ no longer remnos proteded,
but is lofl to the proprietor. Our doctors fay that theft is, m i/s 0wn
na/ure^the occafion of amputation : and amputation, in the cafes in quef^
tioo» is efbblilhed by a decree of the Kizee^ tfliied in confequence of
a profecution which is admitted ^rifrrtt//|r, and not from neceffityi be-
caufe, as the prdfecution of thofe perfbns, for the purpofe of mani-
fefling the theft, is on account of their wifli to recover the property.
Vol.. IL Q^ their
X4
L A R C I N Y, Book VIIL
their prolecution ihuft be admitted generally^ in the fame manner
as that of the froprietar : (for, the admiflion of the profccutbn of
the proprietor for the purpofe of manifefting the theft is becavfe he
is ddirous of recovering the property from the thief, fo as that he may
be enabled to difpofe of it according to his own pleafure ; — ^and the
fime motive is applicable to the profecution of the truftee^ ufwrpcr^
borrower^ or- (b forth, fmce they are al(b defirous of recovering the
property from him, that they may be enabled to difpofe of it accord-
ing to their pleafure; as the borrower or hirer are defirous to recover
it, m order to tttaJU uft of it, and the pawner or truftee in order to
return it to the owner,, and thereby free themfelves from the reipon-
fibiUty for it, and from their obligation to the charge of it :) fincct
therefore, it is evident that their profecution muft be adnutted gtnt--
roily ^ in the fame cnaimer as that of the proprietor himfelf, what
Ziffer alleges Alls to the ground. With refpefi to what he further
advances, that '* if the thief's hand were cut off at their fuitthe
" proteilion of the property would be defeated,'* — we reply that
the £ulure of protection is in this cafe neceflarily involved, fince
as it appears that their profecution b the fiune as that of the adual
proprietor, it follows that at their fuit the hand of the thief mufl be
cut off; now one confequence of amputation is that the proteAion of
the property ceafes; and the failure of this prote&ion, a& being a
thing necef&rily involved, is not to be regarded.
Objection.— Although their profecutioa b^ admitted, yet it
would appear that the hand of the thief fhould not be cut offat their
fuit, fb long as the prop; ietor is not prefent, becaufe it is poffiUe that,
if he were prefent, he might declare the thmg fblen to be the pro*
perty of the thief.
Refly. — ^This flippofition is jnerely imaginary, and therefore of
oo wei^t ; in the £ime manner as a (imilar inuj^nary fuppofition would
not be regarded in a cafe where the proprietor was prefent, and the tor^
rower (or other perfbn from whom the pit^rty had been flolen>.ab-
ibu; for then the thiefshaod would be cut off at ^e fuit of the pro^
tor
Chap. IV. L A R C I N Y. 1x5
tor) according to the ZiblrRawdyet^) although it be poflible that, if the
borrower or other perTon were preient, he might dechre that hp had
given permiffiou to the chief to enter the place of cuftody where the
goods were kept, as this is merely an itfiagiHary fuppofition.
If the hand of a thief be cut off for dealing any property, and ^*^J^-^*
another thief fteal Uie property from this thief, neither the firft thief tojwj th]
fk»r the proprietor are competent to proiecute the fecond thief; be« §il^u2?
cauie the property is not a^ecii^le in refpeft to the firft thief,
{whence if it were de(fat>yed in his hands he is npt refponfible,) and
it is notfroteSeJ in refpe£t to the proprietor^ (whenc, if it had been
defhtiyed in the hands of the firft thief, he could not make him re-
iponfible;)'— the fecond theft, therefore, does not occafion ampu-
tation. There is one tradition, according to which the firft thief
nviy.take the property back from the fecond thief, in order to mtbon
it to the proprietor, which it is incumbent upon him to do? but,
according to another tradition, the firft thief is not at liberty to take
back the property from the fecond thief, as he had not been himfelf
Ic^gally po&Bkd of it, fince a kgd f^ffeffim oxfehun means a ieiziii
fkthcx cSfrsfrietary^ refpanfiniity^ octrufi^ and the fdzin of the firft
thief is. not of any of thefe deicriptions. It is (aid, in ^cF^ataial^
yaideer, that it is moft di^Ue, in this cafe, if the proprietor be
prefent, that the IQbue caufe the property to be reftored to him, or,
if not, that he keep it with himfelf, as- a truft, neither reftoring it to
the Jlrfi thief, nor yet leaving it with the^^raiM^ whofe offence is
snanifisft. — ^If, however, thcjicmtd thief fteal the property A^ore the
infli6&»n of amputation upon the Jirfi thief, or after the remiifion of
puniflunent in confequence of ibme doubt [operating in bar of punifli*
ment,] his hand is cut ofi^ at the fuit of the firft thief; becaufe, in
this cale, the property is appreciable with relped to the firft thieff
fince it would be unappreciaUe with refpe& to him only in confe-
quence of amputation ; but here amputation has not taken place upon
him; he is therefore, in this in(bnce» the lame as a s^/rr.
O a If
ii6 L A R C I N Y. Book VllL
R«iiorationor J|r a thicf rctum the property ftolcn to the owner, before the
LrorTproie- Letter has commenced any prolecutioti agaiiift him, and the owner
^^^' '^'vh. ^^^^ '^"^S ^*^ complaint before the magiftrate, in this cafe, (accord-
mcm: ing to the Z/tiir Rawdyei^) the hand of the thief is not ftruck offl.
It is recorded from jiboo Yoofafihzt his hand is to be (faruck off, on
account of the analogy between* this and a cale where the thief re-
turns the property to the owner, after the accufation. The reafon«
adduced in the Zabir Rawayei is that profecution is efiential to the
manifeftation of theft ; becauie a theft cannot be made mani&O: but
by evidence ; and evidence is adduced only for the purpofe of termi*
nating the profecution; and the temunatian of a prolecution with-
out the efiablijbmcnt of a profecution is inconceivable ; it is there-
fore evident that profecution is eilential to the manifeftation of
theft. Now, in the cafe in queftion, the profecution is terminated
[in other words, is predudeJ^'] by the reftocation of the property to
the owner, as this is the end of profecution, which is obtained by
this means ; and as that which is efiential to the manifeftation df theft
does not exift in this cafe, it follows that the theft is not manifefled ;.
and the theft not being made manifefl, the thief *s hand cannot be
cut oftV fmce without the manifeftation of his theft, a thicf cannot
fufler amputation. It is otherwife where the thief reflores the pro-
perty after accufation and the production of evidence, for in this cafe hts
band is- ftruck off, becaufe the profecution has arrived at its comple-
tion, and is therefore accounted f>ill to remain, though the thief have
reflored the goods at the time of infli£Uifg amputation.
and lb aUb, a If the KAzet decree amputation, and the owner of the property
g^^'ty ^^^ then take it, and make a pft of it to the thief, his hand is not
£ VSa'S^ ilruck off; and fb likewife,. if he fcU them to the thief* Ziffer and
ccr feiiMoe Sbafei lay that the thief is liable to amputation-, (and the fame is, in
ww£i ^® P**"» recorded from Moo Toofaf^ becaufe in this cafe, the theft
ha& been fully eflablifhed,. and it does not appear, from the gift or
£ak^ that the thief was the proprietor at the time of his flealing the
property;
Chap. IV. L A R C I N Y. 117
property; wherefore the j:^ w pde is not the occafion of doubt.—
Our doctors fay that execution is a fupplemtnt to the Kmee\
decree, in this in(hnce; (bfcaofe^ in the cafe in queftion, it is
not abiblutely neceflary that the Ki%te (hould fay *^ I decree in this
** manntr^^ fince this is iaid merely for the purpofe of declaring or t
(hewing forth a right, and announcing the (ame to the claimant of the
right; bvt amputation is a right of God, and is therefore known to the
claimant of right, namely God himielf, without the Kizee^^ decla-
ration;) it is therefore requiiite that profecution exift at the time of
inilifting punifllment; and as, in the cafe in queftion, na profecutioa
appears at the time of punifliment, it amounts to the fame thing as if
the owner of the property had conflituted the thief a proprietor rf it
prior to the Kd%ee^% decree*
Ip the value of the property flolen be, by depreciation^ dlminiflied era di^ik^
to nuitbin the fUndard of theft, (namely, ten £rms^) after fentence J^S^y^
and before execution, amputation does not take place. It is recorded l^^H^l^e
from Mohammed that amputation is to be inflifted, and fueh alfb is ilieft.
the opinion oiZiffer and Sbafei^ they conceiving an analogy betweeiY
this and a cafe where a deficiency occurs in the aSlud thing flolen,
as if, for inflance, a thief had ftolen ten dirms from fome perfbn,
and one of them fhould afterwards be loft or expended, — ^in which
cafe the thief's hand would notwithfbnding be cut off, — ^and fo
here likewife« — ^Our doctors fay that the completenefs of the ftandard
of theft bong a condition of ampuution, it is alfb a condition that
the completenefs exift at the time of inflicting the punifhment, ac-
cording to what was before faid, that ^^ Execution is a fuppJement
•* to the Kazee^s decree :'• contrary to where a deficiency occurs
in the affual article ftolen, for in this cafe no diminutioa appears
in refpeft to the Jandard of theft ; becaufe refponfibility for that
article lies againft the thief as much as if the whole property ftolen were
defboyed, whereas no refponfibility lies, lagainft the thief for a defi*
dency in the value, by depreciation : there is therefore an evident dif^
feiencc between the ^ wo cafes»
If,
ii8 LA R CI NY. BooKVra.
'SH !t^\ ^'' ^^^ witnefles bearing cirideQce to a theft, the thief plead that
/i^ m^ the article alleged to have beea Rolen is his owq property, his hand
^[^^^^^ is not.to be cut ofF although he produce no evidence in fdpport of his
mitoctt« plea. Sii^ei maintains that the punlfliment for theft is not remitted
upon this plea, becaufe every thief has it m his power to plead that
the property ftolen is his own, — and hence, if puniihment were to
be remitted upon fuch a plea, the door of puniihment would be alto-
gether dofed. Our doftdrs fay that douh 'Occafions the remiflion of
punifluncnt ; and doubt is cftaUiihed upon the plea, ^nce it is poffible
that it may be true : and with refped to what £6^7 urges, that ^^ no
^* thief can be at a lofi for fuch a plea,** it is not of any waght,
becaufe retra£bition duA denial are adnutt'ed after ooafeffion, although
a peribn confbllidg have it always in his power ta retsaft and deny \
aad fo fike. If two perfons confeis to a thdft, and one of them afterwards
cf^iJ^ffr plead that the property is his, amputation b not inflicted upon either;
^aJtbjrMrof becauie the retraiftation is admitted and approved with refpeft to the
perfoQ retnAing, and this gives rife to a doubt In regard to the other
thief, as the thdft is, in the prefent caie, eftabliflied upon the evi-
dence of both jomtly, and" hence the. a& of both isiw a6t
A pcHoa If two perfbnscommxt a theft, and one of them afterwards ab-
{^^^ fcond, and two wirnefies bear evidence to the theft, as comnutted by
aaocbcr in a ioth^ againft him who is prefnii^ his hand is cut <^, according to the
praicMed nrofi recent opinion of Haneefa ; and fudi is alia the opinion of the
*||j[P^i['^ two diidples. Hameftryn^ at firft of opinion that the hand of the
•b- /r^/ thief fliould not be cut off, fince, if the ^hfentte were prefent, it
IS poiBble that he mig^t advance ibme plea which might occafioo doubt.
The reafin On which the more recent opinion of Haneefa is founded
• This tabuing of die Hmtufu ioBbM is b cxccediiiglj ^^Ifitrd ud m^^Ohrf^
that it might perhaps be fufpeaed there is a miftake either ia thetranflatiooor the vetxi
but the fermer is Hutml^ and all the copies of the latter, both Pirjmm and ArMi^ perfeAtjr
coincide: certun it is that the argimientorSA^frcouias altogether iioaoTirtf^
Chaf^IV- LARCINY- 119
is that abfeocc prevents the eftaHiflunenc of theft with refpeft to the
ihientee, as a decree of the KSmh againft an abfentee is illegal ; there-
fore the theft of the abfentee is, as it were, noH'^xiJleni^ and a thing
which is non-exiftent does not give rife to doubt % and the mere ap-
frtbenfiw of the occurrence of a doubt is not regarded, on the grounds
before flated«
If a Mabjcor flave * make a confefiion that *^ he had ftolen thole Cafes of
'* tea iErmSf* — (there producing them,) his hand is cut o(F, and. the ti^ch^^lH
property ftolen is returned to the perfim who had been robbed of it. A^*
This is the doArine of Homc^o. Aboo Toofiif has aflcrtcd that his
hand u to be cut off, but that the tea dims belong to his mafter.
Mobammd^ on the other haiid, lays that his hand is not to be cut off,
but that the ten £rm belong to his mafter. All this proceeds upon
a fuppofttion that the maAer denies his {lave*s allegation. — ^But if this
llavc confels that ** he had Aolcn certain property, which no longer
** exifts, but is deftroyed,** his hand is to be cut off, according to all
our doctors as here enumerated. — \U moreover, the (lave be a Maum^
his hand is to be cut off, whether the property ftolen be remaining
or expended. Ziffer noaintains that the hand of a Maoau is not to
be cut oflfin any of tbefe cales; for it is a tenet of his that the con-
feilion of a flave, inducing dther puniihment or retaliation, is not to
be admitted ; becaufe, as fuch confeffion afteds either his w6a/e ftrfin^
or a part^ and as his perfon, and every part of it, is the property
of his mafter, his confeflion is a confeffion afieding another;
and a confeffion affefUng another is not be received: but yet the
Mbbom muft be conftrained to make iatisfiiAion for the property
fiolien, where it has been deftroyed; or, if it be remaining,, he muft
^litendftt/rwUl^ih/flave) dnt 2^ one wka if incompetent xx^ huj^pU^ or per*
fimn any odwaawliafiew. Mill nM M«f| inoppofitiontoa J£^
Hav^ wiio (under certain reftiiaioM^; iiatlibeiiqr loaftfer him(elf«.
«*o L A R C I N Y. Book VIIL
be defired to reftoreit ; fiace hb confeflion is valid with re(pe€k to the
frofertyi as he has been invefted, by his mafter, with power to make
confeflion in matters of property, whereas a Mabjoor flave^s confef*
iion refpeding/ro/^^r/y alfo is not admitted. Our do€kors allege that
a Mabjaor'% confeflion, inducing puniftiment, is admitted, as he b a
vum *, after which the confeflion proceeds, dependantly, to afleft the'
property, and thus thb confeflion is Valid with refpeft to the property
likewife : a flave moreover cannot htfufpcffid^ in a cafe of confeflion
inducing ponifliment, fince hb confeflion induces pain to himfelf,
as his hand is cut ofl^ in confequence of it; and a coi^flSon of thb
nature is admitted although it tend to affeft the ri^t of anothera-p-
The argument of Mobammed^ in the cafe of a Mabjwr^ b that hb
confeflion, as affe£king /ro^r//, is null; (whence hb confefliod with
refpect to an ufurfation of property, is not admitted;) any property,
. therefore, which is in the hands of t} Mabjoor^ b the property of
his mafler ; and the hand of a flave is not cut oiF for ftealing the pro«
perty of his mafler. A. drcumflance which confirms thb dofbrine of
Mobamaud b, tbit the property is the original thing in a proiecution
for theft, and the amputation only a dependant^ whence a profecutipn
may be heard reipefling the property^ independent of amputation, —
that is, if the proprietor fue fof Utit^property and not for pumflmni^
hb fuit b heard ;*^-aud fo likewife, property is eflaUtflxed independent
of amputation, where the evidence conflfts of one man and two wo«
men,— or, where xhe thief makes confefllion of the theft, and after-
wards retrafts and denies it : — bqt if the cafe were reverfed, — that b,
if the owner of the property declare *' I am defirous that hb hand
'* be cut ofl!^ aod do not want the property,*' his fuit is not beard;
and in the fame manner, amputation cannot be eftaUiflied unlefs the
property be eftabliflied: it is therefore evident that the property^ m
the cafe in (jucflion, is the original thing, and amputation only a i^-
* And therefore fiil^efl to the penalties of the law, in commoo with other people.
pendant ;
Chaf.IV. LARCINY. 121
pendant; and the confeflion pf a (lave not being valid with refpeet
to that which is the original^ (namely the fr^perty^) it necefiarily
follows that it b not valid with refped to amputation^ whidi is
only a dependant thereof. It is otherwife in the ca(e of a Maaoon^
as his confeflion with refpefl to the property in his hands is
valid, and conlequently his confeflion with refpedl to that which is
Its dependant (namely amputation) mnft be valid likewife. The ar*
gumait of Aboo Ye9faf\& that, in tlie cafe in queftion, the Mabjoor
has made a confeflion afFefUng two points;, first, amputation^ (which
aflfe^b hb own per/on^ according to what was before obferved, that
<*'he is a him,** and which is conlequently valid;) secondly,
property^ (which affefts his mafter, and is confequeatly invalid with
reQieft to the vafier:) now amputation may be incurred indepen-
dent of /nj^r/f; as where a free perlbn (for inftance).confefles to his
having ftden cloth, which is in the hands of Zeyd^ by faying ^* I
<< (ble this doth from Aumrw^ TxAZeyd aflerts the cloth to be his
** own property, in which cafe the hand of the perfim {^ confeT-
iing is ftruck off, although His confeflion be not recayed in relped
to that particular piece of cloth, whence it is not to be taken fiom
Z^d. Haneefa iays that the confeflion of a Mabjowr flave, where it
induces puniflunent for theft, is valid, (according to what was be«
fore Aated, that ** heis a'miif;'*)— and hisconfeflSon muft alio be
valid with tefyeOi to.^t pf^erty^ in confequence of its being fb with
reiped Xxipmuflment \ becaufe the confeflion is made ifter the perpetra«
tion of the theft, and not at the begmning of it ; and the property, efter
the dieft, is a dependant of amputation s whence it is that the protedioa
of that property ceaies in codequeuce of amputation; and alio, that
amputation is inflicted aftcrthedeftniAion of the property. It is other-
wife in the ca(e of confeflion made by zfreeman^ as hdEon cited; fiir
thero amputation only is due, but not the reftoration of the property %
bccauie the hand of a thief is to be cut off for ftealing property from
ztro^ttl and it is here pofliUe that the cloth is the aftuai property of
Zr^^, and that the iiteman had fiolen it from AumraOf in whofe hands
Voi.IL R it
Ill L A R C I N r. Book VIII.
it was dcpofited.— -In a caSc where a flave flcals the property of
his oulAm his hand is ^oe cut off*; whence there is an evident di(^
tin6tion between this cafe and that of a /rcenum.r^Thht however,
applies iblcly to where the mafter of the fiave faljifies his con-
feffioQ : — for if the mafter verify^ his confeffion, his hand is cut
off in all thefe cafes, on 'account of the 4ereti£tion of that which
would prevent it, niiinely, the rtglbt ofibe mafien
The pfopertjr If, after, amputation being inflifted upon ia thief, the actual pro-
S^d'iter perty flolen yet remain in his pofleflion, it mull be refbred to the
bw'iTfc^be ^wner, asit iliU remains within his proprietary : but if the property
loft or ex- remain not with the thief, he is not relponfiUe for it, whether it
£b noc have been anfwmdox itfiroytJU This is the opinion of Abmo Toafrf
rcrpooiible. ^^^ Haneefa^ according to one report ; and fuch alfo is the doftrine of
the Rawiftt Mafhbwr^ Hafan records, from Haneefa^ that fi^tisfac-
tion is due where the property has been canjumed or expended. Sbrfcl
fays that in every cafe fatisfadion is due for the property, and that
refponfibility for the property does not ceafe in confequence of am*
piftation, becaufe amputation and fatisfaflion for the property are both
equally rights^ although the caufe of each be different ; (for amputa*
tion is a ri|^t of the law, the occafion of it being the perfons not re*
Training from the comtniflion of an aft which the law forbids ; and fatif*
faftionforthe property isaright of the iVr^n/Mi/, the occafion of it bdng
the tdking away of the property ;) both, therefore, are due ; in the fame
manner as if a perfon were to deflroy game, the property of another,
and kept within an inclofiire ;--*or to drink wine, the property of
au infidel futgeft; in the frjl of whick inflances corredion and iaisCxC-
faOioa for the {property are both incurred; and, in the Jecmd^ punifh*
ment for wine-drmking, and fatisfaftion. Tlte arguments of our do£forsr
upon this point are threefold : f irst, the prophet has faid ^^ H^reff^^
** hility lies againjla thief Mfter amputatkn'^^^^-^JLQO^XXiri^ ali<^i^«
tion of refponfibility prevents punifhment; becaufcf if the thief vrefe
refpmftbk for the property (blen, he would, by making fittisfaCtion
6 for
Chat. TV. L A H C I N Y- 113
fiir it, txcome the proprietor from the time that he bad taken k^ lii
the manner of z/ucce^on^^ and it wotild then appear that he had
taken 6si cwn property, whence his punifhment would be prerenfed*;
but as amputation is held, by all the doctors*, to be unavoidably ihcutred
by him, he is not made refponfible, (ince his being made Co would pre-
vent it : THIRDLY,— the prote£Hon of the property ccafes ak the time of
the theft, — ^that is, it no longer remains in a ftate of protedtion on be-
half of the Individual, — ^for if it remain prote6ted merely to btibalftftht
snJfoidual^ it follows that it is in its own natun neutral f , and is pro«
hiUted X only on account of the right of the individual : now this is
a prohibation arifing from circumflances, and not exiting in the thing
itfdf; and as a thing which is in it*s own nature n^tral cztinot oc-
cafion punifliment, it would follow that amputation is not to be in-
fliAed upon the thief, oh account of the doubt re(pe£ting neutrality ;
but as amputation // incurred, according to all the doctors, it nece(&rily
fellows that the property, at the time of the theft, beccnes prohl*
bited in behalf of the right of the law, in the fame manner as
carrion; and (atisfaflion is not due for carrion. — The failure (on the
other hand) of the proteftion of the property, with refpeft to the confum^
//mont,i$nottf/>j»arm/, as the ra^i77///0;i is another matte
the iheft^ and it is not neceflary that the failure of protcdlion be re-
garded with fe(pe£k to'the confumption of the property alio — ^In the
fame manner, a doubt concerning neutrality is regarded in the thing
which occafions amputation, namely, the tbeft^ but not in the thing
which is diiftind from that, — ^namely, the confumption. Upon this
is founded what Hafan reports as the doctrine of Hancefa^ that, '* in
•* cafe of confumption (atisfa£Uon for the property is due/' The
argument advanced in the Rawdyct Mafhoor is that the confumptionis
^ That it, in the ininner of « trsnfiiM •ftr9p€rty.
t drmi. MMk^ \. t. tmmmfn^atj^ which it is lawful for aoy one, imliflferendy, Co
okraaddb.
% Jlf9k.HMrimy\MioeffM9ntQMMh.
R 2 the
114 LARCINY. BookVIU.
merely the completion of the i^gfit iS^ the defignf. in fteatUug the pro-
perty^ is, to cmfumt it;) xt^xA^ therefbrCt is paid to the imtbt ff
Kiutrality hefore-mentioned, and hence fatisfa£don is not incumi-
bent, fmcc the thief has. as it wercr deftroyed a neutral property.^^
The protcAion of the property, moreover, is held to ceafe-with
refpe^t to refponfibility, in a cafe of coufumptionr as ther£ulure of
proteAion in a cafe oiconfwnptlon b a necefiiiry confequence of its failure
ill a cafe of deJruilioni^^Qjx other words, the prote6Uon.of the property
ceafes in the prefent cafe alfo,, and hence the property is not in pr^
tiUrn in fuch a matmer .that refponfibility fliould be incumbent,. any
more thaain a caie oi deJlfiuRion\) for it is manifcft that if the protection
of property were to remain in a cafe oiewfumftitm only, and dtisfiidtion
for that were made due, the agreement. bet ween the property in queftioo»
(namely, the property fidtiC) and- the property on account of which
fatisfa£tion is due, would be deftroyed, fmce [if fuch were the caie]
this property is prote&ed on account of the right of the individoaU
both in the confumptm and alio in the ^firuSIku^ of it, in(bmuch.that
if any perfon were to ufurp it, he would be refponfible for it, whether
it be deftroyed, or confumcd by the ufurper,— whereas the property
in quefllon^ (namely, the property ftoten^\ b protefted on account dT
the right of the individual in a cafe of confumptUn only; and there ia
no agreement between property which is proteAed in two (ituations^
and property which is protefted in one fituation only :— but an agree-
ment between the property in queftion and the property for which
fatis&ftion is required is indifpeniable : it therefore appears that in a
cafe of confumpttou alfo the prote&ion of the property ceafes ; and no
latisfa£tion is due for it ;— -in the fame manner as holds in a ca(e of
defiruSion.
Om |wMMii> If a peribn be repeatedly guilty of theft, and then fufler ampu-
wi^Srpic! t^on ^^^ ^X particular theft, fuch amputation takes place as anfwer-
Am df^' ing to all the thefts : and there is no refponfibility for the pn^erty
I fblen in any one of them, according to Bne^a. The two di&iples
*wi9r.
Chap. IV. L A R C I N Y. 1%$
iky that the thief is refponfiUe for the property Aolen in every theft udthctiiier
excepting that far which he has fufiered amputation.— This b where fy/^Sw^
only one of the ieveral owners is prefent.— If, however, they be a// pre- i*'*^ ^^
fent, and the thief fuf&r amputation at the fuit of the who/e^ in this cafe mammi p^
he is not refponfible for any thbg to any one of them, according to
the united opinion of all the dolors.— The argument of the two
dilciples is that the owner prc;fent is not the deputy of thofe who are
abfent; and profecution by the proprietor is eifential to the manifefta*
tion of theft ; but, in the cafe in queftion, profecution does not ap-
pear on the part of thofe who are abfent^ .wherefore the Urciny of the
diief is not efbblifhed with refped to thtm ; their property, therefore,
remains in protedion, and hence fatisfa£tion is due for it. The ar-
gument of Hasieefa is that by all the thefts one amputation only is in^
curred as the right of God; becaufe, in puuifhments, the application
£s made as extenfive as poflibIe,-~(that is, one fingle purdfhment
fqffices *.)---*Now, as profecution is conditional to the manifeHation of
the theft with the Kh^ee^ and as that has taken place, (and punifh-
ment for theft is incurred on account of the offence,) fo when the
Kiaee ixSxBtA one fingle punifhment he inflicts the whole that is
due ;' for it is evident that the advahtage (namely detemunt)\& reaped
by all. The fmgle amputation, therefore, takes place as anfwpring
to ^//the thefts ; and hence fatisfa&ion is not due for any one of the
properties flblen. The fame difference of opinion obtains in a cafe
where a thief repeatedly fleals property from the fame perfbn, and
that perfbn profecutes upon one of the thefts, and the thief fu^fers
amputation for it: — that is, according to Haneeffi^ the thief is not
' refponfible for the property ftolen in any of the other infhnces ;— but
accordmg to the two difciples he is refponfible.
^ In other words, jf^hvn u oBHifrivkiu nfetiiinu tf,iii/um^^if§r wtUk tka
CHAP.
Hi L A R C I N Y. Book VIIK
CHAP. V.
Of the Ads of a Thief with refpcft to the Property Aolen.
If a thief (leal a piece of cloth, and tear ic in two» ia the boufaof
the ownci>»of the cloth, and then take it cut of the houfe, and ctriy
CaAcTttlikr it ofr, and the value of the cloth, after being thus divided, amount to
Mm\^. ten ifitms^ the hand of the thief is to be ftrbck off. It is recorded from
^Ni^otttor ^^^ rpc/a/ thzt his hand is not to be ftruck off; becaufe» upon his
dividing the cloth, a caufe of his right of property in it appears, as
the tearing of it in pieces * is a caiife of right of property, on account of
its fubjcfUnghim to refponfibility for the value; thus the fut^'eft
of refponfibility becomes his property upon his making fatbfa^on fee
it to theowner. Wherethe thief, therefore, conveys the cloth outof the
owner*s houfc after having divided it, theft is not eAablifhed, fincc
the thief here conveys out of the houfc a thing in which a cauie of
his right of property exifts; and in fuch a cafe the hand of a thief is
not to be cut off; in the fame manner as the hand is not cut off where
the purchafer of goods Aeals his purchafe in which the (eller happens
to have a referve of option, as a caufe of property exifls in that in-
ihnce ; — and (o alio in the ca(e in qu^ftion* Haneefa^ on the other
hand, argues that the taking of the doth, together with the tearing
of it in pieces, is a caufe of rejponfibilitjf^ but not of right rffr^ptrty ;
for*the only principle on which this right is eftabliOied, ^ttr making
fatisfa£lion, is that if it were not £>, the compenlation, and the thing
for which the compenlation is given, would be united in one Aate of
property; and this does not engender doubt, any more than the
fimple takini^ without tearing : in other words, as the (implc taking
mvay is alfp, in (bme infbnces, a caufe of right of property after iatil-
* ArA. KhMJik fMJk\ tint is, Umng fo as to deftroj or depreciate the value of the
artick.
faction
Chap. V. L A R C IN Y. 127
faftionbeing made, and jretxloes not engender doubt, Co the taking with
the tearing, which is a ctufc of refponfibility, and, after fatisfaEtion
being made, becomes a caufe of right of property, docs not engender
doubt. Similar to thii is a cafe where the feller deals from the pur-
chtfcr damaged goods which he h«id fold to him; for here his hand is
to be cut oflF, although the caufe of returning thefe goods, and thefe*
in, ultiipatcly, the caufe of the propriety reverting to the feller, be
eftabli(hed; forhis hand iscut oiFnotwithftanding; ana fo likewife ill
the prefent cafe. This is contrary to what is adduced by jibt^ I'hofaf^
that ** if a purcbafer (leal his purchafe in which the feller h<is a re«
*• ferve of option, his hand is not to be cut off," &c. Cmct/a/e is em-
ployed for the purpofe of fubftantiating the right of property. The
idif^ncc of opinion here recited obtains only where the owner of
the cloth chufes to take it back, together with fatisfadtion for the
damage it has*fufttined.— If, however,, he chufe to quit the cloth, and
receive of the thief iatisfaftion (or thc/uU vaha^ in this cafe his hand
is not to be cut off, according to all ourdoAors,. becaufe the thief is
here conlidered as the proprictorof that doth 'from the time of his
taking it, in the manner of fucceflton*, and hence it is the fame as if
the proprietor were to make a gift of the property ftolcn to the thief,
for there the thiePs hand is not to be cut of becaufe of doubt, and fo
here likewife« All that has been her« advanced proceeds upon a fup«
pofition that the cloth has, by tearing it, fuftained a confiderabk
damage ; for if the damage be trijfmg^ the hand of the thief is cut off,
according to all the doftors; becauie m this cafe no caufe of a right of
property appears, fmce here it is not in the proprietor's power* to
take the whole value by way of fttisfa^lion.
Ip a thief lay his hands upon a goat, and cut Its throat within the TMm »
honfe of the owner, and then convey it forth, his hand is not to be SlTfteaialJ
cutofft becaufein this cafe the- thfcft is, iu tho end, a theft of ^^ £1^1(^1?*
nuut\ and the hand is not cut off for dealing fldfli mcati thip.
• That is in the way cf « traiffiitm rfprtftrip
If
itS L A A C I N Y. Book VIII
^%*^ ^ '' ^ "^^ ^^ ^^ ^ fiWcTt to fuch an afooont as would occafion
^tHUm^jgM amputation, and then coin the fame into dimu^ or dcenirj^ his hand
orytfwrr into ^g to be cut off, and the dtKins or decndrs are given to the perfon who
had been robbed. This is the do£lrine of Hanetfsu The two difciplea
(ay that:the perfon who had been robbed is not entitled to take the
dirmi or deenirs. The difference of opinion hern .originatis i in a fimi-
lar difference of opinion in a cafe of .ufurpatm. Thus if a pcrfoa
were to ufurp dirm or dtendarSf and afterwards convert them into
onumatfs (fuch as iracekts^ for inftance) the proprietor!s right
in them is* .terminated, according to the two difciples ;«— contrary
to the opinion ofHaneefa. In the fame manner, .alfi>, in the cafe
ki queftion, by converting the gold or filver into Srmioc dandru the
right of the peribn robbed is terminatedf according to the.two difciples :•
contiary to the ofunion of Hmutfa. The reaibn of t&is difierence of
opinion isthat workmanfliip is appreciably, with the twodUcipleSt but
BOt vnnhHtmetfa. And here obiervo tbat^conceming amputation,.in the
cafe in queftion, (judging from the opinion of AMfg^f) there can .be
no manner of demuTt becaufe the thief is ootfrxfrk/ar of the ^Bnns
ot deenin: but (bme fay that (judging by the opinion, of the two
diiciples) there can be no amputation, becaufe the thief hu become
proprietor of the cdn previous thei^to. Some again fay that in the.
opinion of the two difciples alfo amputation is incurred, becaufe the
gold or (ilver has, by wwkmanfhip, become another tbrng^ and the
fUve becomes proprietor of tbat things and not of the a£fir«/ ti^/ig
ilblen, (namely, the^«^or tbcjfher;) and hence his hand mufl be
cut off.
o^ er A If a perfbo fteal cloth, and dye it nd^ and afterwards fufier am-
Stt'wS?^ putataon for the thefl, the dothis not to be taken back horn him;
lickattcka. nor is the value to be taken from him by way of iatisfii^Bon. This
b the dofibineof the two E/dcrs. Mabammdtkjt that the red cfeth
is to betaken from bili^ and he is paid for the espence of dying; in
the Uxat manner as where a perfon mfurfi cloth, and bfterwards dyes
it.
CttAT.V. LARCINY. 129
it, ill which cafe the cloth is taken back from him» and he is paid,
by the owner, fuch additional value as the cloth has received in the
dying, tor this reafon, that the cloth is t^e original article, and is ftiU
exifting, and the colour is a ikpendant upon it, whence a preference
is given to the owner; the cloth is therejfore returned to the owner,
and the ufiirper is paid the expence of dying ; and fo alfo, in the pre-
fent cafe, becaufe here alfo the &me reafon exifls. The argument
of the two Eidtrs is that the colour is extant both in appearance^ and
ftlfo in reaiitj^ whence, if the owner of the cloth were to take it
•back dyed^ he is re(poo(ible for the acceflion of value in confequcnce
of the dying; now the right of the owner of that cloth exifls in the
appearance of that cloth only, and not in the realty of it, (namely the
proprietary^ becaufe, if the cloth were deftroyedi the thief is not re-
fponiible; and fuch being the cafe, a pfeferenee is given to the thief.
It is otherwifein a cafe of ufurpaiion^ fince in that inftance the right of
the proprietor and alfo of the ufurper is extant and eftabliflied both in ap^
pearanerMi in rea/ityf for which rekfon they are both upon a footing,
whence a preferaiee is pven to the proprietor for the fame reaibn as
Mohammed gives the preference to him. What is now advanced
^rpplies Mety to where the thief has procured the cloth to be dyed of a red
colour : but if he were to get it dyed blacky the cloth is taken from
htm, according to Haneefa and Mohammed. Abw Yoofaf c<M^tvitsi this
caie tobe the iame with the preceding, becaufe he holds a black dye
fllib to inoreafe the value of the cloth, in the lame manner as a redAyt.
With Mobimmtedr likewife, blacJt is the fame as red; yet that docs noi
occafion a termination of the proprietor's right, her being entitled ro
take back the cloth in either cafe. With Haneefa^ on the contrary^
hlacJi is in iraKty a defeS in the cloth, and iberefure dtes not occafion
a ternnnatioo of the proprietor's right.
Vol. II. S CHAP.
ijo L A R C I N Y. Book VIII.
CHAP- VI.
Of Kalta-al-Tareeh^ or Highway Robiery.
Oefcripcioa Wheh a party gp forth* prepared for oppofitioii, (that Is. enabled
UiMm^i* '^ ""^P^^ ^^ oppofition of others,)— or, when a fingle perfon goes forth,
mtMyrMir. ready for oppoiitioUt from a confidence in his own prowefs, — with an
intent to commit depredations on the highway, they are termed, in-
the Arabick language, Katt&a-al-iartek *, and in the Pcrfian^ Rab^
Zini and the perfon upon whom a robbery is fo committed is termed
MaAtoo-a/i-bccf.
Itdsben ire
of lour dc-
ftrifiioDt,
HxoHW AY ROBBERS appear under four different defcriptions or pre*
dicaments. first, thofc who are feized before they have robbed or
murdered any perfon, or put any perfon in fear: sbcondly, thofc
who arc feized after having only robSed a Mujfutman or an iufidel fub^
jcft : — THIRDLY, thofc who arc fcizcdafter having committed murder
only without robbing: and fourthly, thofc who are feized after
having committed both murder and robbery. The law with refpeO.
!bil7^* ^^ ^^^^ ^^ the /rjl predicament is that the magiftrate (hall confine
fq/immaf, thcm in prifon until their repentaxicc he evident, — (that is, until it be
known from their demeanor that they have repented, by the marks
of repentance and contrition appearing in their countenances.) With
art fay Mm- tefyoGt to thofc in the fecond predicament, the law is that the ma-
!^ ULi giftrate (hall Arike off their nght hand and left foot, pipvided the
wadl^fiu, property uken be of fuch value as when divided amongft the
whole, would afford to each to the amount of ten dirms. (The rigbt
« Eitcnlly, « h/f/lin rfibiUttwaj.*' t Litenlljr, ih dtfredaiii.
3 hand
Chap. VI. L A R C I N V. 131
hand and left foot are here particularly fpecified, becaufe, if the hand
and foot were both taken from oncfidc^ one of the fmriiUies would be
totally deflroyed, which amounts to killings and the^ law <)oe» not
nward robbers of this defcription to be put to death.) With refpt&to w^y^k^k:
thofe in the third predicament, the law is that the Kince Ihalhpuc
them to death ^^ by way o( punijhment i whence, \iihcJValhe*ad-dam
or avenger of blood forgive them, no regard is paid to his forgiveneis,
punijhntent being a right of God f . (The rule with refpedt to thofe
three defcriptions is founded on a text of the Koran^ as the pa&ge
which occurs upon this* head evidently points to the rules. here ipe*
cilied. Let it alfo be obfcrved that the intent of the words ^^ after
'* having robbed a MuJfubnMi or an infidel fubjeHI^^^ — is tliat the property
may appear protected under a lining protection % : if, therefore, a robber
take the property of an alictty in the way of highway robteryj ampu-
tation of the hand and foot is not to be inflided upon him.) The ^^ ^ ^^.
law with refpeft to thefe in the Jhurth predicament is that the /'m*. or
magidrate has it in his option to puniih them in which ever way etatk. with
he fees beft: if he pleafe, he may firft cut off a hand and foot and amp'IlSJkln.
then put them to death, or crucify them ; or, if he pleafe, he may put «t die difac*
them to death at once, without inflidling amputation. Mohammed maguinte^.
holds that the magiftrate has it at his choice either to put them imme-
diately to death, or to crucify them ; but that he is not at liberty to inflidl
amputation upon them likevoife ; becaufe highway robbery is a (ingle of-
fence, and therefore cannot occa(ion two punifhments ; and alfo becaufe,
in punijbment^ robl^ery uuthout violence to the perfon is included in the
nttirdcr of the perfon, (whence it is that if a thief, being married, were
* Executed cither by bemging or htlHe£»g.
t In oppoficion to retaUatUny which being a right of the inSviiual^ may cither be (or-
given, or remitced for a compofition.
t In oppoficion to the property of an a/rrfi, which is iWifr^Mwrn only during h»s Jmim^
(or pMfpUn under which aliens are pcnniucd to remain ia a MuJiJmam territory lor the
Ijpaccofoncyear.)
32 to
ij* L A R C I N Y. Booic Vllf.
to commit wboredmn he fuffers lapidatim only* and not amputation.^
The argument of Haneefa and Aho^ Yoofaf is that the inflidion in
quefiion (namely death or crucifixion, together with amputation,)
is only a fingk funijhment^ more fevcre than ordinary, on account
of the fuperior atrocity of its caufe, (namely, a cwnpUte o^
fruSiim of the peace of the Afgbway^ by murdering a per/on^ and then
carrying of his property^)^^\vhexiCt it is* that cuttin? off the right
bond and left foot conititutes only zjing/e punilhment with refpefi to
a highway robber, whereas; with refpe^ to z common thief who is not
a highway robber^ it would be two punifliments; tod a variety
of crimes can only be comprehended in a* numerous^ but* not in a
JingU punifliroent. It is to be obferved that Kadooree^ in his abridge*
meat of his own work, has mentioned that it is in the option
of the magiftrate either to expofe the body upon a crofs, after putting
to death the robber, or to leave it. It is recorded from Jboo Toof^
that the body muft not be left uncrucified, becaufe crucifixion is par*
ticuhrly mentioned in the facred writings, and the defign of it is public
cit/f in order that others may take warning by it. Lawyers report,
from Haneefa^ thzt pub/icity is fuUy obtained'by putting to deaths the
crucifixion being only by way of aggravation, wherefore the magiftrate
has it in hiis option either to aggravate or not. Again, Kadooree fays
that the highway robber in queftion is to be crucified Wrur, and then
to he flain by thrufting a ipear through his body : and the fame i$
recorded from KoorcJthee. It is recorded from ^ehdvoe th»t he muft
firft be (lain and then crucified ; but the preceding opinioa [of Kooroi^
hee] is moft approved, becaufe crucifying b the way there mentioned
is calculated to excite men*s fears moft fordbl/, which is the defign.
It is alfi) requifite that the body of the criminal be not fufiertd to re-
main longer th^n. three d^s upon the crofii, becauie by thai time it
becomes putrid and conie-^uently noxious. .Moo Too/hf lays that it
ougjht to remaun there until it fidl to pieces, for the more ftnking
example: to tbis^ hc»wever# it may be replied that the example is
fuflickntly made by an expofure of three days.
If
CxiAP. VI- L A R C I N Y. 133
If a highway robber be put to death, (atisfaftion for the property Stiif&aion
he had taken is not due from him, becaufe of the analogy which this pcnv ukeii
bears to thefts in which the iamc rule obtains, as has been already ^^^^p^.
flated.
If any one among a band of robbers be guilty of nmrdir^ the Murdkr com.
puni(hment for it is inflicted upon the wbok^ becaufe the punifliment Mofaia!!^
is in this inftance confideredas a penalty for the aflault oitbewboU^^YCxK^i fabjeaf^be
is eflabliihed by each of them being aiding and abetting to the other; ''^^'^^
(whence if any of them, in lighting, be hard preflcd, the others aflift amrdcr.
him;) and the condition upon which the punifhment is infUAed on
them is this, that murder be committed by any one of them, which
is the cafe here. Let it alfo be obferved that it is the fame whether
the murder be committed with a cluhy a pone^ or Tifcymtar^ becaufe.
higbway robbery is equally eAabliflied In all theie cafes*.
If a robber be taken who has neither fimrtlered nor plundered^ but u\mdi^.m*
only wounded ^ perfon or perfons, in this cafe retaliation is exacted of Jf^ *^*^
him, where there is retaliation*, or a fine, where there is fine-f-. r^lfv.rab.
—The exaction of retaliation or fine is committed to thofe who are ^Umi^^faHi
entitled to claim it, becaufe in th« offence in quefHon there is no
fmijhmtnt^ whence it is evident that thefe are a right of them^fi;/-
dual^ and hence be is to exaA it to whom the right appertains,
namely, the Wake Jandyat or perfon upon whom the offence has
been committed.
If a robber be feized who has both ^undered and wounded any bm m if at-
perfon or perfons, his hand and foot arc to be cut off; buttheperfonal SS'U.
injury fufhined from him is remitted, (that is, neither/ifi^ nor retaliation i^ticdby m.
arc incurred;)— becaufe, where funi/hment is incurred as a right of '""'^
* Asiacafeorthslo&oranyi. .SoriTfM^ f As in cafe of rft/f or fr«i)h.
7 God,
134 LARCINY. BobKVin-
God, the proteclion, in behalf of the individual, of every thing (hort
of the whole per/on^ ceafes in the £ime manner as the protedion of
properly ceafes.
t^^'hc' ^^ ■ robber be taken after having repented, and he ihould have
J5« J^." been guilty of both rubbery and murder ^ in this cafe the Walee Ja*
liable to /if. niyct OX avenger of the ofl^nce has it in his oprion either to flay him,
btttSTtvcn- "* retaliation, or to forgive him; becaufe, in the offence of highway
(erofdie^* robbery, punifhment is not to be awarded after repentance^ accord-
bertyioexaa ing to what b written in the Koran^ '^ pukxshmskt shall be ik«-
JJf^f'fc^for. " PLICTED PPON THEM, EXCEPTING SUCH AS. REPENT BEPO&K
tr*^^^ ** THE MAGISTRATE LAYS HIS HANDS UPON THEM;*' and aUo, •
fibie for Che becaufc repeiitance only can be confirmed by the robber returning
^ciwaklTfl. tlie goods he had taken to their proper owner; in which cafe am-
putation is not incurred*: but amputation not b^g incurred, it
ncccflarily follows that the right of tHe individual holds tu refpeft
both to perfons and property i the avenger of the offence is therdbre
at liberty either to exa& retaliation or to forgive; and if he forgive^
the robber remains refponfiUe for the property taken, whether it be
deftroyed in his hands, or ccnlumcd.by him.
The aAoal Ip^ among a party of ro bbers, there happen to be aii infant or a luna*
EriS^*aa7«. /^f or a prohibited relation of the periba robbed, in this cafe puniflimenc
"^ransaJi^ IS remitted, not only with refpeft to this perfon, but alfb with reipedt to
pM^ffom all the reft of the party. What is now advanced concerning an in-^
font and lunatic is the opinion of Haneefa and Ziffer. It is recorded
from Ab90 jT^^^that this rule obtiains only where the infant, or the
lunatic, is the a£tual perpetrator of the murder or robbeiy : but If the
a£tual perpetrator be of mature age and found underftanding, in this
ca(e punifliment is infli£ted upon the reft of the party alfo, although
there be an infant or a lunatic among tliem ;— but yet punifliment is
not infljAed upon the infant or the lunatic. The fiuue difference of
• See p. ti6.
opinion
Chap. Vr. L A R C I N Y.
oplntonobtains in a cafe of theft committed by a party , of whom Ibme
are infants or lunatics; — ^that is, (according to Haneefa and Zifer^)
punifliraent is remitted with refpeft to the whole. The rule is the
fame with jlboo Toofcf likewife, — provided that only the lunatics or
infants carry forth the property out of the owner's houfe, and not the
others \ but if tlic revcrfe be the cafe, punifliment is not remitted
with refpeft to fuch of the party as are fane or adult. The argu-
ment of ^i&^ 21>^/^ is that the perpetrator is a principal^ and the
affiftant a dependant only : now where the perpetrator is poflcflcd of
underftandingy. there can be no demur refpeding the principal \ nor,
in fad,, can any demur exift but with refpeft to the dependant \ arid
that is not. regarded: but if the cafe be revcrfed, punifliment isre-f
mitted in rcfpea. tothe wbole^ becaufe here the demur concerns the
principal. — The argument of Haneefa and Ziffer is that highway^
robbery is a finglc offence, committed by the whole of the party,
and that is the caufe of the punifliment; but where it happens that
the zBioifomcoi them is not an occa(ion of punifliment, the aftT>f
the others is then only a part of the caufe, and an effe£b. cannot be
eflabliflied by zpart of a caufe; in the fame manner as. where two
perfbns kill a man by one of them flriking him wilfully^ and the
other accidentally^ in which cafe retaliation does not take place ; as
the aA of the perfbn who flruck. wilfully \% only a part of the caufe ;
and fb in this cafe.lik^ewife. — ^With.refped to the words ** or a pro-^
* Mbited' relation of the pcrfon. robbed," — fome obferve that this
defcription applies folel/toa cafe where the property oiay be held
in. common between fuch prohibited relation and the perfon robbed* ;
whilfl others maintain that the application is general, and not re-
ihifted to this particular cafe ; and this is approved, becaufe highway*
robbery is a fingle offence, committed by the whole, and hence a pre-
vention of punifhment in refpedt to any any one of them occafions -the
prevention of it in refpedtto the remainders
• Such » betwcea % father ixAJm. (Set /M*;/3/.)
Objectiok.
^IS
136 L A R C I N Y. Book VIII.
Objectiok.— Highway robbery committed on zMooJlamm^ is
is not an occafion of puniftiment any nu)rc than where it is commit-
ted upon a prohibited relation ; and as the circumftance of a prohibited
relation being of a caravan robbed would occafion the remiflion of pu-
niihment, it would alfo follow that the circumAance of a Mooflimtn
being ia the fame caravan is likewife an occafion of punifhmcnt being
remitted : this, however, is not the ca(e, as by the conimiflion of a
robbery upon a caravan punifiiment is incurred, although there be a
Moojldmin along with it.
ll£Pj:Y«— -Highway robbery committed on a Moojl&mn is not an
occafion of punifliment, becaufe of a doubt exiting with re(pe£t to
the protc£lion of his life and property : but this reafon is reftridled pe-
culiarly to a Mooji&min. — It is otherwifc where a prohibited relation
happens to be in the caravan ; fince, from his being there, a doubt
ariles re{pe£ting the cujiody^ as a whole caravan conftitutes one fingle
.cuftody, in the fame manner as a fingle bouje^ and hence by taking
property from the caravan punifhmcnt is not incurred ; in the iame
manner as where a perfon deals the property of his relation, and alio
the property of a ftranger, from a houfe in which the relation and
flranger refide together ; in which calc his hand is not cut off, on
account of a doubt refpcfting the cu/lodyi and fo here likewife.
As punifliment, however, in the cafe under confideration, is remitted,
it follows that the right of the individual takes phce, according
to what was before flated ; and hence, if the robber (hould have com-
mitted murder, the avengers of the offence have it in their option either
to put the murderer to death, or to forgive him.
Kohbcry If fomc of thc travellers in a caravan commit a robbery upon others
cr^nKiiiticUby ^ ^
* An alien infidel, who, not being a fixed refident of the Mujfulman government, has
yet a temporary proteAion from .it, (never exceeding the fpace of we jv^r,) either as a
fugitive from his own nation, or as a merchant, or as having been deputed on a particular
commi/Tion. (They are particularly treated of ia the next book.)
of
Chap. VL L A R C 1 N Y. 137
of the fame caravan, puniflimcnt is not incurred by them ; becatife a
caravan conAitutcs a fingle cuflodjr, like a finglc houfc; and as, if one
of two perfons living in the fame houfe were to ftcal property belong-
ing to the other out of that houfe, punifliment for theft is not to be
inflicted upon him, fo here likewife.
If a perlbn commit a highway-robbery by ^/]^i&/»— or by day within a loMcrf
a r//y, or in Koofa^ or Heera ♦, — ^tliis perfon b not accounted a rohbtr^ ^^h!%i!t\n
on a favourable conftruftion.— Analogy would require that he be con^ !*^5!?5!l|'***
fidered as z robber ^ (and fuch is the opinion of .Si^^i,) becauie an piacOdoet
iiUention of robbery here evidently appears. — It is recorded from ^iiuMii|
jiboo Toofrf that punifliment is incurred by him where he commits
a robbery without the precinfts of the city, although it be in the
neighbourhood of it, becaufe there no afliftance can be had : and he
further aflcrts that if robbers make an affray in the city, durhig the
day-time, with deadly weapons, — or if they make an affray during the
nighty either with deadly weapons, or with flicks and (lones, — they
are to be accounted as highway -robbers^ becaufe deadly weapons are too
quick in their etfeft to admit of afliftance coming, and in the night-
time afliftance comes flowly.— The reafbn for a more favourable con-
flru£bion of the fa£fc here is, that highway-robbery fignifies attacking
people upon the highway^ which does not apply to cities^ or inhabited
places in their vicinity, becaufe it is evident that in fuch places aflifhmce
maybe procured; the perfbns inqueftion, therefore, are not highway-
robbers^ and hence punifhment is not inflicted upon them. — They mufl, but the
however, be conftrained to make reflitution of the property taken, in accoanuble
fuch a manner that the claimant may obtain his right: and they are ^^^ff?'
alfo to be correAed and imprifbned, as they have committed an of- uke^aswell
fence. Iff moreover, they have flain any perfon, profecution for yiolmce'tSicy
* Hiera meanS) gencralljr, any incIoTurc.— In the prefent cafe it is fiiid to allude to
a particular Afanxil^ (or retting place for travellers,) near Km/u^ conftrtiAed by Naman Bin
Mandar^ in which the lodges, although not u:uhlmi^ are yet all ntar each other.
Vol. II. T that
138
may have
commtud.
L A R C I N Y^
Book Vtll.
that is committed to the avenger of blood for the reafbns before
flated. — It is to be obferved, however, that decrees have pafled ac-
cording to the opinion o(jlboo T^ofaf^ as appears in the Fattahal-Tak^
dter^ copied from TaAdvec.
If a perfbn provoke another to fuch a degree that he flays him,
the Deylty or fine of blood, falls upon the tribe of the flayer, according
to Hanecfa. — (This is a cafe of homicide upon provocation^ which will
be hereafter more fully treated of under the head of D^^//.)— Iff how-
ever, a man repeatedly aft thus, he muft be put to death for it, as he is
a common nuifance in the land of Goo, wherefore his iniquity muft
be removed by dcftroying him.
HluDATJ.
( «3P )
HE DA r A.
BOOK IX.
AL SETIR, or the INSTITUTES.
SEYIR is tbe plural of &m/, which, in its primitive fenfe, iigni- ])eSiddoii«f
fits reguUakitt in matters fpiritual and temporaL— &^, in the ^v^-
language of the law, more efpedally applies to the institutes of the
^tpbet in his wan.
Chap. L Introdtt£koTy.
. Chap. IL Of the manner of wa^ftg war.
Chap. III. Of making peace, and concerning the perfi)ns to.
whom it is lawful to grant protection.
Chap. IV. Of Plunder, and the diviiioa thereof.
Chap. V. Of the Conquefts of Infidels.
T a Chap.
HO INSTITUTES. Book IX.
Chap. VI. Of the I^ws concerning M^iww.
Chap. VII. Of Tiiie and Tri&ufe.
Chap. VIII. Oijixyat^ or Capitation Tax.
Chap. IX. Of the Laws concerning Apoftatcs*
Chap. X. Of the Laws concerning Rebels.
CHAP. L
Wtf naft be 1 HE facred injunAion concerning war* is fofficiently obferved when
■pd^ tSe ^' ^ carried on by any one party or tribe o(MuJfulmans ; and it is then
iii£dcli, acaii no longer of any force with refpeft to the reft* It is eftabliflied as a
feme Damof divine ordinance, by the word of God, who has fiiid, in the Koran^
the MMffiJ. 44 jj^^y ^^^ iKPiDELS + ; and alfo by a (aying of the prophet, " war
^* is permanently ejiablifhei until the day if juigpimt^^ (meaning the
ordinance refpe£ting war.) The obfervance, however, in the degree
above mentbned fufiices; becaufe VDar is not a pcfitive injiin^ion \j^
as it is, in its nature, murderous and deftru£):ive, and is enjoined only
for the purpofe of advancing the true faith, or repelling evil from the
^ Meaning the JihU For%f or $rdmiud wir^ enjoined, in various paflaget of the
£»rtfji, to be waged againft infidcb. It is Cenned, hy fome, tig holy vuur.
t Anb.JU$gJhorUiifii literall/, afi€i§t$rti\. e. pfytbeijlt^ oeiddatin.
t Arab. Ars Jitu This is a technical expreffion which cannot well be tranflated :
it means an injonAion or ordinance uneonditscmal in its nattirei and general in its applica-
tion,' and the obligation of which extends aUke to every individual. Thus fyfihm and
prayir are of the dafs of For% Jio: in oppofition to fuch dutie^as are merely €9aditlmuit
and HiaJUnuL
fervants
Chap.I. institutes. 141
iervants of G6d ; and when this end is anfwered by any (ingle tribe
or party oi Mujfulmans making war, the obligation is no longer bind-
ing upon the reft; in the fame manner as in the prayers for the dead*;
(iff however, no one Mujfulman were to make war, the whole of the
Mujfulmans would incur the criminality of neglecting it ;) and al(b,
becaufe, if the injunction y/cvt fofilhe^ the whole of the Mujfulmans
muft confequently engage in war, in which cafe the materbls for war
(fuch as borfcs^ armour^ and fo forth) could not be procured. — ^Thus
it appears that the obfervance of war, as aforefaid, fuffices, except
where there is a general fummns^ (that is, where the infidels invade a
Mujfubnan territory, and the Im6m for the time being iflues a general
proclamation, requiring all peribns to ftand forth to fight,) for in this
cafe war becomes a poiitive bjunftion with refpe£t to the whole of
the inhabitants, whether nun or nmmen^ and whether the Imdm be a
jufi or an unjujl perfon : and if the people of that territory be unable
to repulfc the infidels, then war becomes a pofitive injunction with
refpeCt to all in that neighbourhood; and if thefe alfi>d6 not fuflke,.
it then becomes a pofitive injunction with refpeCt to the next neigh-
bours; and in the fame manner, with re(peCt to all the Mujfuhnant^
from tufi to we^^
Thb dc(truCtion of the fword -f is incurred by bfidels, although inUeh may
they be not the firft aggreflbrs, as appears from various paflages in the l^jj^lSlIJ «.
facred writings which are generally received to this effeCt ?ociiioa.
It is not incumbent upon infants to make war, as they are ob- War is not m
jefts of compaflion: neither is it iucumbent upon /laves ^ or women ^ as ^^thJkSl]
the right of the mafter or of the hufband have precedence: ner is it
fo upon the MW, the maimeJ^ or the decrefid^ as fuch are incapable.
* All MhiJfUmont are dlrefied to pray for the dead : but the injunAioo it fuffcientlf
filfitledbythcattorthe/nmii ortheidatsonsor A£m«£riof thedecca&d.
t Arab. KattUi meaning war ia itt tfiratiin^ fiicb ^fghiimg^ /7'«/i ^
If,
t4»
nmtwumt or
ttnltfTfincife
INSTITUTES.
Bcor DC.
h\ however« the itifideU make an attack upon a city or territory, in
this caie the repuUion of them is incuml^nt upon all Mujfubmns^ in-
fomuch that a wife may go forth without the confent of her hu{l>aiid«
and a flave without the leave of his madcr, becaufc war then becomes
a pojitroe injunSm^ and poileflion either by bondage or by marriage
cannot come in competition with a pojithe injutiSion^ — ^as in prayer
(for inftance) otfafiing. — This is fuppofing a general fummons ; for,
before that, it is not lawful for a woman or (lave to go forth to make
war without the confent of the hufband or mafter, as there is, in this
cafe, noneceflity for their afliftance, fince others fuffice; and hence
no reafon exifts for deflroying the right of the hufbaud or mafter on
that account/
J!^«**^- If there T)e any fund in the public trcafury, fo long as the
aftioni mull fund lafts, any extraordinary exactions ^ for the fupport of the war-
^hiift'tbm rior& is aborninaUe; becaufe fuch exa£^ion refembles a hire for
h!^^J^ that which v^afervke of God, as much as prayer ox fa/ling \ and
^»fr* hire being forbidden in thefe inftances, fo is it in that which re-
fembles them.— In this cafe, moreover, there is no occafion for any
extraordinary exaftion, (ince the funds of the public treafury are pre-
pared to anfwer all emergences of ikktMuffulmans^ fuch as war^ and
fo forth. If, however, there be no funds in the public treafury, iu
this caie the Imdm need not hefitate to levy contributions for the better
fupport of the warriors ; becaufe, in levying a contribution, the greater
evil (namely, the deftru£lion of the perfon) is repelled; and the con-
tribution is the fmaller evil ; and the impofition of a /mailer evil, to
remedy a greater^ is of no confequence. A confirmation of this is
found in what is related of the prophet, that he took various articles
of armour, and fo forth, from Sifwan and Omar: in the fame man-
ner, alio, he took j>roperty froni married men, and beflowed it upon
^ Anb. Jmli ncaDingaatxtnordiiury donation or reward.
4
the
Chaf.II. INSTITUTES- 143
the unmarricdt m order to eacourage them* and enable them td go
forth to fight with chearfulncfs;— and he alio uied to take the horfes
from thofe who remained at home^ and beftowed them upon tliQfe
i¥ho went forth to fight, oa foot»
CHAP. II.
Of the Manner of Waging War.
Whbh iht Mujfulmans enter the enemy*$ country, andbefiegethe laUcliinttft
cities or ftrong holds of the infidels, it is ncceilary tq invite them to ^!^[^^^
embrace the faith, becaufe Ibn Mbas relates of the prophet that ** he ^^ ^
^^ never deftroyed any without previoufly inviting them to embrace
** the faith/* If, therefore, they embrace the faith, it is uuneceflary
to war with them, becaufe that which was the defign of the war is
then obtained without war. The prophet, moreover, has (aid ** we
^^ are JirefleJ to make war upon tnen until fucb thne as tbeyjhall cot^t/s
" THERE IS NO GoD BUT ONE GoD ; but wben tbsy repeat this creeds
" their perfons and properties are in proteElion.*^ — If they do not accept and, if ther
the call to the faith, they muft then be called upon to pay JVay^/, Siu,,t?pay
or capitation-tax •; becaufe the prophet direclcd the commaiiJer of his '*'«*•'*•
araiies ib to do ; and alfb, becaufe by fubmitting to this tax, war is
forbidden and terminated, upon the authority of the Koran. (This call
to pay capitation tax, however, refpe<5ls only thofe from whom the
• Tribute from the fitf^n^ in the fiune manner as Khltu} is tribute from laniu
capitation*
,44 INSTITUTES. Book IX.
capitation-tax is acceptable ; for as to apoftates .and the idolaters of
Arabia, to call upon them to pay the tax is ufelefs, fince nothbg is
accjcpted framfthem but embracing the £uth, as it is thu^ commanded
in the Koraf$.)—U thofe who are called upon to pay capitation-*
tax crnifcnt to do fo, they then become entitled to the (ame pro-
tection, and fubjed to the fame rules as Mujfulmans^ becaufe Ake has
dechred ^^ Infidels agree to a capliation-tax only in order to render ibeir
*^ blood the fame as Mujfulaum bloody and tbeir property the fame as
^* Mujfubna^ property:'
ht^S^^ It is not lawful to make war upon any people who have never
tfa«&itli,pr«- before been called to the £2Uth, without previoufly requiring them to
^mjSoit wtf embrace it; becauie the prophet fo inftruAedhis commanders, dire£fc-
lifoaiLn: jjjg iijgm « f^ call the INFIDELS to tbefaitb-C' and alfo, becaufe the
people will hence perceive that they are atucked for the fake of reli^
giont and not for die fake df taking tbeir property^ or making Jlavei
of tbnr children^ -ahd on this coniideration it is poflible that they
may be induced to agree to the call, in order to fave themfelves from
(be troubles ofwar.
b«i '^^^^ ^ ^ Ati^^if&iM attack, infidels without previoufly callyig them to
aad flaiA thefiuth, he is an oflfendert becaufe this is forUdden: but yet, if he
"j^ia!^ doattack them before thus inviting tbern^ and flay them, and take
•o/«,iccb their property^ neither/nr, expiatioHf (^ atonement 2re due^ becaufe
that which process, (naoaely, ^%Mt) does noc cxift b them, nor are
thqr under proceObn by ptace^ (nundy, the Muffuhum territwy^)
udibio tnae frobibitwn of the aift as not lufllcient to iim^Bon die
exa£^on other of fine, or of aconemeni lor proper^: in. the fime
manneras the Ikying of the women oe itfasa ^biUren of infidels is for-
bidden ; but if, notwithfbndmg, t ^cr&a were to ibqrfuch. I« is
not liable to a fine^
It is laudable to call to die fiudi a people to whom a call ha
already
Chaf. IL institutes. I4S
already comCt ia order that they may have the more full and ample
warning: but yec tliis is .not sncuniAeHt^ as it appears in the NaiU
Sabeeb that the prophet plundered and ddfpoiled the- tribe of MooJUkk
\^ furpriie; and he alio agreed, with Afbna^ to make a predatory
attack upon CiJma at an early hour, and then to fet it on fire ; and
fuch attacks are not preceded by a call. ^Cobna is a place in Syria :-^
ibme ailert it is'the name of a trlbe^
If the infidels^ upon receiving the call, neither cokifent to it, nor OninCacb)^
agree topay capitation^tax, it is then incumbent on the Mujfmmam to i^ '^Ibncc'
odl upon God for afliftance, and to make war ^^\ them ;* becaufe ^ ^^g^Mie
God is the affiftant of ihefe who ierve him, and the deftroyer of his tlicx m«f bs
enemies, the infidels; audit is necef&ry to implore his aid upon every ^*
occafion; the prophet, moreover, conunands us i^ to do«-*Aiid
having (b done, the Muffulmms muft then, with Goo*s affiilMcci
attack the infideb with all manner of warlike engines, (asthtf pro»
phet did by the peofde of Tipr^) and muft alfo iec ^be to their &abt4
tations, (in the fime manner as the prophet fired JSmcmt^,) and
muft inundate them with water, and tear up their plantations, and
tread down their grain; becaufe by thefe means they will become
weakened, and their reiolutkm will fail, and their force be broken;
thefe jneans are, therefore, all fiuidtificdby the law.
^ It is no obje£kion to ^fiooting arrows, or otlier miifiles, againft Tke vfe of
the mfidds, that there may chance to be among them a Aftt^&iM 'f^h^.
in the way either oibotulagi or of 'traffie\ becaufe the. flioodng of ^#aitiioiiti^
arrmis and fo forth amcxig the infidels remedies a gaeraitvil^ in JI»^iaJ«#
the repulfion thereof from the whole body of Mufu/numsi whereas s^^^**'
the flaying of a Mujulman flave or trader is only . a particular evil;
and to rq)el z.gentrai evil a fartieular evil mu(i be ;idopted ; and alfb,
becaufe it feldom happens that the ftrang holds of the infidels are
deftitute oiMuffulmam^ fince it is moft probable that there are Muf-
fulaums refidii^ in them, either in the lyay of bondage or of trit^\
VouIL U and
h6 institutes. Book DC
and hence^ if the yiCt of n^U weapons were prohibited on account of
tht& Mufu/manSf war would be obftniAed.
£ mSS^ ^^ ^^^ infidels, in time of battle, ihould make fliidds o(;MuftiU
place UmM* ivMcr children, or o£ Muju/mans vrho are priibners in their* hands, yet
orctpcimbe* the^^ i' no occafion,. on that account,, to refrain from the ufe of
Seldi*to** "wffil^ weapons, for the rcalbn already mentioned. It is requifite,
tghu however, that the Muffuhnans^ in ufing fuch weapons, aim at the in^
fdtht and not at the children of the Muffulman captives ; becaufe, as it
is inipofiible, in (hooting, to diftinguilh predfely between them and
the infidels, the perfbn who difiJiarges the weapon muft make this
diftinftion in his intentiomxA ikfign^ by mmh^ at the infiJeh^ and not
at the others^ (ince thus much is pradicaUe, and the diftindion muft
be made as far as is practicable. There is aUb neither ^;vr nor expla*
tm upon the warriors on account of fuch of their arrows or other
miffiles as happen to hit the children or the Mujfulnutns^ becaufe the
war is in obiervance of a (fivine ordmonce, and atonement is not due
for any thing; which may happen in the fulfilment of* a divine ordi-
nace, for otherwi(e men would negleft the fulfilment of the ordi-
nance from an apprehenfion of becoming liable to atonement. It is
otherwife in the cafe of a pcrfbn eating the bread of another when
perifhing for hunger, as in that inftance atonement is due although
eating the bread of other people, in fuch a fituatiou be a divine ordi-
nance^ ; becaufe a perfbn perifhing for hunger will not refrain from
eating the provifion of another, from th* apprehenfion of atonement,
fince his life depends upon it; whereas wmr is attended with trouble,
and dangerous to life; whence men would be deterred, by apprehen*
fion of atonement, from engaging in it.
wirrionauqr Thbrs is no objeAioii to the warriors carrying their Kwrans and
i£X#orwo- their women along with them, where the Muffulman force is confi-
* That is to hj^ if cnjoiiied and suAorilcJ ia fhc fiend writitigt.
dcrable.
Chaf. n- INSTITUTES. 147
derablc, to fuch a degree as to afibrd a protedioa from the enemy, ?^^*^
and not' to admit of any apprehenfion from thenii becaufe in that cafe vvkh ckcm/
fafety is moft probable, and a thing which is mojl friable ftaiids and
is accounted as a thing ^r/^».
If the force of the warriors be fmalL (fuch as is termed a Sirree- ^^^* the
faccA be la
yat*f) Co as not to afford (ecurity from the enemy, in this cafe their i^tU m not
carrying their women or Karons along with them is reprobated ; be- S5feS?*^**
cauie, in fuch a iituation, taking thofe with them is expofing them
to diihonour ; and taking the Koran with themt in jparticular, is ex-
pofing k to contempt, fince infidels icoffat the Kcran with a view of
infulting the Muffulmansi and thb is the true meaning of the (ayinjg
of the prophet ^* daiy not the Koran ahng with you intQ tie territory
*• of the wBWwy," (that is, of the i^/r.)
If a MuJJulman go into an infidel camp, tinder a protection, there
is no objection to his taking his Koran along with bin), provided thefe
infidels be fuch as obferve their engagements, becaufe from theie no
violence is to be apprehended*
It is lawful for aged women to accompany an army, for the per- ^^i^ wo»e«
foraumce of fuch bufinefs as fuics them, fuch as drefling viftuals, paay die *
adminiflering water, and preparing medicines for -the fick and !I]IIJ\^^
wounded;— but with refpe^ to young women, it is better that they
ftay at home,asthbmaypreventperplexityordifhirbvice. The women,
however, mufl not engage in fight, as this argues weaknefs in the Muf-
Jubnans^ women, theiefore, muft not take any perfbnal concem in
battle unlefs in a cafe of dfolute necefity: and it is not laudable to
carry yonng women along with the army, either ibr the purpoie of
•carnal gratification, or for fervice: if, however, the neceffity be very
urgent^ fcmakfiavet may be taken, but not wroes.
• Acdiorti ibod/qfiDCttimijootosoOt
U 2 A WIFE
I4S INSTITUTES. Book DC
^^T^^^T!^ A WIFE muft not engage in fight but with the conient of her
wilhMlem. hu(band« nor a flave, but with the conient of Bis owner» (accordio^g
to what was already ftated, that *' the right of the huiband and the
mafbr has precedence,**) unlefs from neceiSty, where an attack is
made by the enemy..
Mc^lm^ It does not become Mujfulmans to break tfeaties, or to aft iin-
fc«r Ac fairly with refped to plunder, or to disfigure people (by cuttbg off*
their ears and nofeSt ^^ ^ forth ;) for as to what is related of*&c
prophet,, that he dtisfigured the Oormans^ it is abrogated 'by fubfe-
quect prohibitions.— (The hiftory of the Owneans is this, A pfoty
of the inhabitants of.O&ma came., to Midinaj and there took oatha
[of fidelity] to the prophet, and afterwards ftll fickt upon whicH' the
prophet fent them to his camel flables, dh-eAing them to live upon
earners milk ; but when they recovered they flew the camel-keepers,
and carried off the camels; and the prophet difpatched people after
them by night; who overtook them, and cut off their ears and nofes-
WomcB»€ha. by the prophetV order.) — ^In the fame manner, it does not become
^MmT^^' Af^/moff/ to flay women or children^ or-menjiged, bed-ridden,, or
mft not be blind, becaufe oppofiiion and fighting are the only occafions which
" ^ make (kughter sdlowaUe, (according to our do&ors^) and fuch peribns
aro incapable of thefc. • For the fame reafbnalib, the jftaro^/AT are not
to be (bin,, nor thofe who are dlimembered of the right hand, or of
the right* hand^and left- foot. Shi^ei maintains that aged men, or
perfons bef-ridden or blind fuay be flain ; becaufe (according to him)
infidelity is an occafionof (laughter being allowable; and this appears
in thefe perfons. What was before, obferved, however, that ** the
^* paralytic or Hfmembered are - not to be (lain,** is in proof againfl
him» as infidelity appears in thefc alfo, yet (Vill they are not flain^
whence it ia evident .that mere infidelity is not a juftifiable occafion of
flaughtcr. The prophet, . mor^x)ver, forbad the flaying of infants or
fingle perfons^ i and once, when the prophet.fawa woman who was
• drth. Zlrrii\ memngfiirtkrid ahtti si randm.
flain^
Chap. II. I N S Tl T U T E S. 149
ilain, he (aid, " Jllasl this woman didnoifght: wfy^ therefore^ was
•*/&fy7^/Vf?*'— But yet, if anyofthefe perfons be killed in war, or imlefstKeybc
if a woman be a queen or chiefs in this cafe it is allowable to flay J^ L "^"iSe
them, they being qualified to moleft the fcrvants of God. — So alfo, ^fs^^««ii/.
if fuch perfons as the above fhould attempt to fight, they may be
flain, for the purpofe of removing evil, and becaufe fighting renders
flaying allowable.
A LUNATIC mufl not be flain unlefs he fight, as fuch a perfon is lunaHts mull
not refponfible for his faith : but yet where he is found fighting it ^y^ ^
is neccfliary to flay him,, for the removal of evil. It .is alfo to be ^i^^^
obferved that infants or lunatics may be flain lb long as they are
adually engaged in fight, but it is not allowed to kill them after they
are taken prilbners : contrary to the cafe oi others ^ who may be flain
even after they are taken, as they are liable to punifliment, becaufe
they are refponfible for their fiiith.
A rsRSON who is in&tie oceafionalfyj ftandii, durinj^ his lucid in-
tervals, in the fame predicament as zfane peribm
It is abominable in a Mujfulman to begin fighting with his ftther ^ Mmfijnmm
who happens to be among the infidds ; nor muft he flay him ; becaufe "^.*^^ "?<^&i^«
God has faid, in the Koran^ *^ honour thy father and thy ther.
** mother;** and alfo, becaufe the prefervation of die father's life is
incumbent upon the fon, according to a/i the do€tot^i and theper-
miifion tX} fgbi with him would be repugnant to that fentiment.
If, alio, the fon flfould find the fiither, he muft not fl;ty him hmfelf^
but mufl hold him in view until fbme other come and flay him,
for thus the end is anfwered without the fon flaying his father,
which is an offimce. If, however, the father attempt to flay the ^^^ ^1 ^*">'
fon, infomuch that the fon is unable to repel him but by killing him, Jl/na.
in this cafe the fon need not hefiute to flay him; becaufe the defign
of the fon is merely to repel him, which is lawful; for if a MuJfuU
man
ISO INSTITUTES. Book IX-
fnan were to draw his fword with a defign of killing his ion, in fuch
a way as that the (on is unable to repel him but by killing him^ it is
then lawful for the fon to flay his father, bccaufe his defign is merely
repulfifm\ in a cafe therefore where the fath**r is an infidel^ and at-
tempts to (lay his fon, it is lawful for the fon to flay the father in
felf-defcnce, <?yi/7;W.
CHAP. III.
Of maldng Peace; and concerning tbe PerfoDsto whom
it is lawful to grant Protedion.
Pcicemaybe If the Im&nt make peace widi aliens^, or with any particular
iHl^id^iir ^"*^ ^^ ^/ of them, and perceive it to be eligible for the Mujful-
**• marn^ there need be no hcfitation; becaufe it is faid» in the Koran^
^« If the infidels be inclined to >eace, do ye likewise
'« CONSENT THERETO ;''-*-and aifo, becaufe fhe prophet, in the year
of the punifliment of EuAea^ made a peace between the Muffulmant
and the people .of il&M for the fpace of ten yean ^ pcoci^ moreover*
is tfi/nr ia efied, where the intered of the M^JulmMs requires it,
iince the defign of war is ihe mmovaf of evil, and this is obtained by
means of peace: contiary to where peace is m/ to the iiitereft of the
Mujftdtnans^ for it is not, in that cafe, lawful, a« th»s would be abandon*,
ing war both ctpartntiy^ and tn effeSj. It is here, however, proper
** Ar^h. Hlrhii. This, in it& litfrnl fei/c, ficrafief an efawj^ the cenn, liowevir. or-
. teiidt to j/f iiMJiAfW except Mufih^f md Zhimeet^ whe4er thejr bt lAualljr u wv wich
the Mmjpdmmu or not, I c appears lo be fynonTnioui wish die X^aiyi }UfiU%
? Co
Chat. lU. INSTITUTES. 151
to obfcrre that it is not abfolutely ncceflary to redriGt a peace to the
term above recorded (namely, ten years ^^ becaufe the end for whicli
peace is made maybe fometimes more e^flually obtained by extend*
ing it to a itm^er term.
If the Imim make peace widi the aliens for a iinglc term, *^'^"^x
(namely, ten years^) znA afterwards perceive that it is mod ad van- km. when
tftgeous for the Mujulman mterett to break it, he may in that cafe J-J^j3;;j^
lawfully rcnc%v the war, after giving them due notice; becaufe, upon Weii due
a change of the circiunftanccs which rendered peace adviicablc, the
breach of peace is war, and the obfervauce of it adefertion of war*,
both in apptartmci^ and alio in effeff^ and -war is an ordinance of God,
and the forfiiking of it is not becoming [to Muffkhnans.'] It it to be
obferved that giving due notice to the /tntmy is in this ca(c indi(penr>
ably requiHte, in fuch a manner tliat treachery may not be induced,
fince this is forUdden* It is alio requiHte that fuch a delay be made
in rehewing the war with them as may allow intelligence of the
peace being broken off to be univcrfally received among them; and
for this fuch a time fuffices as may admit of the king or cbie/ofthc
enemy communicating the fame to the different parts of their domi*
nion, fince, by fuch a <lelay, the charge of treachery is avoided.
If the infidds aft with perfidy in a peace f , it is in fuch cafe mieft ihr^
lawful for the Imim to attack them without any previous notice, -^fly^J^"
fince che breach of treaty in this inflancc originates with tbem^ ^n^SLi
whence there is no occafidn to commence the war on the part of the w/iM# no-
Muffiilnums by giving .them notice. It would be otherwife, how- **^
* (Soiaiheor^nal:) in€Mng|th»v although, where it advancei the A/i;^^^
/cMfisthe&meuwir, u it aaTwtn the (ime purfNife (namd/ their adim
is Adl the cafe where advinc^ b no iMiger derived Aon it.
t Thitif tofii]r,breakihepeKeh7aajhoftilesft.
ever,.
ff%, INSTITUTES. Book IX.
ever« if only a fmall party of them were to violate the treaty, by
entering the Mufulman territory and there committing r^Atths upoii
the Mujfulmans^ fincc this does not amount to a .breach of treaty. I^
moreover, this party be in force ^ fo as to be .capable of pppofittoo,
and openly tight with the MuJfubwmSy this is a breach of treaty^ witli
re/ped to that party only, but not with refpcft to the reft of their
nation or tribe ; becaufc, as this party have violated the treaty without
any pemiiflion from their prince, the reft are not akifwerable for their
aft ; whereas, if they made their attack by permiffion of their prince* .
the breach of treaty would be regarded as by the nnbok^ all being vir*
tually implicated in it«
Peaof maybe If the Imam make peace with aliens in return for property, there
murn for" >s no fcruplc ; becaufc, fince peace may be lawfully made vxitbotU any
prapmy. ^y^^ gratification, it is alio lawful in return for a gratificatiAi^
This, however, is only where the Mujfulmans ftand in mrri/ of the
property thus to be acquired : for if they be not in ntcefftty^ making
peace for property is not lawful, fince peace is a delertion of war, both
in appearance and in efFe£t.<pf-It is to be obferv^ that if the Imam
receive this property by fending a meflenger, and making peace,
without the Mujfulman troops entering the enemy*s territory^ the
objc^ of di(burfcment of it is the fame as that ofJi%yat^ or capitation-
tax; that is, it is to be expended upon thew^/vsr/t and not upon the
poor. If^ however, the property be taken after the Mujfulmans have iti-
vaded the enemy, in this cafe it is as plunder^ one fifth going to the
Imam^ and the remainder to be divided among the troops; as the
property has in hd been taken hy force in this inftance^
b^'^ttnde^r"^ It is incumbcnt on the Itndm to keep peace with apoftatea^ and
ukenagaiaft not to make War upoii them, in order that they may have tinfb to
• Meaning trihet which apoftatifc and defert the AAfilman caufe^ as occaftonany hap-
pened in Che earlier times of M^banmudamfm.
confider
CiiAF. III. INSTITUTES. 153
confider their (ituatioii^ (ince it is to be hojiecl that they may again
return to the faith. — It is therefore lawful to delay fighting with
then), in a hope that they may again embraee IJIamifm ; but it is not
lawful to take property from them. If, however, the Imdm (hould
take pr<^rty from them, it is not incumbent upon him to return it,
as fuch property is not in protection.
If infideb harafs the Muffulmans^ and offer them peace in return MmfiimMmg
for property, the Imdtn muft not accede thereto, as this would be a fh^ t p^*
degradation of the Mu/fubmrn honour, and difgrace would be at* ^^^^^
tached to all the parties concerned in it;-— this, therefore, is not law-
ful, except where dedru^on is to be apprehended, in which cafe the
purchafing a peace with property is lawful, becaufe it is a duty to
repel deftruAion in every poflible mode.
Trb fale of warlike (lores to diens is not permitted; neither Is warlike
it allowed |^ fend merchants among them (or the purpofe of felling !!^i!^fi3d m
thdr hories and annaar; becauie the prophet has fiariudden us to ^'^'
(ell warlike (lores into the hands of aliens^ or to carry them to them ;
and alfoy becaufe the aliens, by felling them warlike (Ipres^ are
^renf^thened to fight the Mujfulmam. — Selling them bwrfes is like*
Wife unlawful for the fame reafon. , Selling thcni irm i3 alfo pro*
hibited, as it is the material from wliv:h arms are conftruded. — ^And
OS the (ale of the(e articles is difallowed before peacc^ fq is. it like wife
i^ter pea^ has been condudedt as peace is of uncertain^ duration. — It
is to be^ remarked that analogy would require that the rulip with rc-
fpe6l 10 (elling them ^Wj/ms or clothing (hould be the (^ne as with
refpeft to (eUiog them «rm : but to ftH them visuals and clothing is
lawfult in cooloipi^r with wh^itis recorded of the ^^fhit^ that he
ilire£le4 Simmitna to carry proviHofis to the people of Mtfica (ot (ale,
although thofe people were then alhns^.
• That i>, hid iM^jct (MBtee^ or «itei«^
Vol. II. X Ir
M+ INSTITUTES, BowclX;
SECTION.
^^^? If a free perfbn grant prote£lton to aa infidelt or to a body of in*
/«/// peHbo fidcls, or to the people of a fort or city, the protection is valid, wKe*
'' ' ' ther the per(bn granting it be a man or a wMian ; and no peribn of the
MuffuUnans is afterwards at liberty to mdeft them; becau(e the pro-
phet has faid ** iftlM h^ among ibe MussvLMAKt gront proUltim /#
** an infideU MdmakeacmpaS nvitb bhn^ it btbcfves the wbali to ob^
" fervc fucb protefHon and eompa^l^ and not to break it ;•* and the
learned agree that the word aAia^ [the leaft,] in this iiiyingt means a
Jingle per/on f—znd alfo, becaufe any (ingle MnJiUnum is empowered
to make war upon the infidels, wherefore they fear him, fmce he is
competent to oppole them ; by his granting prottAion, thereforet
prote^on isefl^U/hed as from him, itnce he is one of whom pro*
tedion may be afked; becaufe the otjeA of fear is the djefi to which
to look for protedion ; and a fmgle MMffitlman is the oljeft of fear,
(according to wluit was before aflerted, that ** tbe infidels fear iftib;**)
by his granting them prote£Bon». therefore, protedion is efbhltflied
as from him, and it then extends to all others befides the perfbn who
grants it;, in the £une manner aa in the cafe of fimng the new moMy
at the commencement of /{tfiifs4Sii^;---fbr, if a perfon teflify to fU-
ing the new-moon cfRmnzdnt £iybg ^^I fee it«^' the hlkofRMnman
becomes incumbent upon him, and the obligation then extends to all
' others; and fb in the prefent cafe likewife, the proteAion becomes
'^^Vfn^l^^'dl others befides the perfbn who grants it,--«ul the
'' mm^'iSt^f^ to aUthe ref(».««and they are not at
^"^lie^^^^l^liliti^iR^
.*itt':\\t nodi 010-ff alqooq sloffj li^uodtlt
• The modi iMiidi of die ^^kMMMU« ]KW, dwiM «liicb •.llrift M b <f^^
\
i
CiiAr.in. INSTITUTES. i55
prote£l;ion it not divlfibl«, and U therefore complete ;•— that is* the
proteQion granted by one MiiffitimaH it coufidered as proceeding from
the wboUt ui the fame manner as the exercife of guardi«nflitp in nur*
riage:—^ if one of ievenl guardians of an infiuit, who are all upon
an equalit/t. in point of guardian(hip, contract the infant in marriage,
die marriage is valid and binding upon iall the other guardians, and no
one of them is at liberty to annul it : thus, in the prefeht cafe, if an/
one Mi^nhuut grant proteftion to an infidel, the ianae is eftabliflied and
binding upon all others, and no Mn^jfiUmtm is at liberty to annul it, ^
fince the pratedioa is valid,-- <3(cept where it has aa evil tendency, ..i
in which cafe it muft be annulled, and inteUfgenee of the &ne muft <]
be communicated to the infidds, in the iame manner as if the /m^/ii ^^
bimi^ were to grant.a protection, and afterwards find it adviieable to
■annul it» in which caie he is at liberty to annul it, giving the in- ht
fidds notice of the annuhnenti as bias been already flated.— The hudm "ll
muft dibr^rahend any perfea who fingly^ves a protedion, where the ^|°^
protefiion is of evil tendency, as he has in thislnfiaace prefumed to n><i
iet his own judgmant above that of the Jmim^ and has confided in his !^«
own prudence. It is oUierwife where the proteaioo is aSoiJiaik* as
the periba ynho grantt it hu here an. exeuie, fince if he were to delay
9vinSthep*ot«diQn, the good to be deiivcd from it might be defeated.
Ir a ZMMM^grlVlt prateAion to an alien infidel, his protection is -ThepfotM.
not valid, becaufe the aAs of 4 Zmmm are liable to fufpici^^, with [j^ JS^
refpcd to gianting protection, on account of his infidelity ; befides, a
Zhmm* has noauthority with refpeft to Mmffitltmuu,
Ir a AAffkimm be refiding among the infidels> either as z<aflne Vj^^'W'
or a mnSni, and grant aproteftion to aliens, his protection is in- h^tml>t'
valid, becaufe he is in the power of the aliens, wherefore the aliens ''^^''
•i«.net m fear of htm, and proteaion is retb-iCUd to the objeCk of
ftwi and alfo, becaufe, as perfensin thofe fituations are liable to be
oonfiiained to grant a protection, they nay not be direCted by what
X a is
'5* INSTITUTES. Book IX.
is adviieable. If, moreover, the protection granted by the captive or
the merchant were valid^ whenever tlie iniiclels found themfelves
prefTed in war, and unable to carry it on, they might influence the
captive or the merchant to grant them a prote<flion, and through means
of that protection they might find relief, when the door of yi&ory
over them would be clofed.
uipcwt^ If a perion who has embraced the Mufu/man faith in the country
li»soocyet of the alie'us, but who has not yet retired into the Jlfk^//»wf territo-
dieMr^ZMv riesji grant protection to infidels, this protection is not valid, for the
m'i^." fame reaibns as arc ailigoed in the preceding cafe.
tios mmcd '' ^ [Miifu/man] Have grant protection, it is not valid (according
aot nJM ** ^ Hancefa) except where his maftef has given-bim permiiBon to cn-
mM he'bt gage in wir. Mobamtned (ays that the protection granted by a (lave
cnggfelit is valid, and luch alfo b the opinion oi Sbafci^r^Ab^o Tcejaf zlfo
^^* agrees with him,, according to one tradition.f-« According to anorhrr
tradition^ his opinion b the iame as that of Haneefa. The argumei4:5
ci Mobanwied zrc twofold :«— first, Jlboo Moofa Aflyiree relates that
the prophet declared the pipteCtion granted by a (lave to be a valid
protection :— SECONDLY, ^ flense may alfo be a belirotr^ and may con-
fequently poflefs a power of refiftance ^ : the protection granted by
an unlicenccd flave, therefore, is valid, . in the fame manner as the
protection granted by a flave who has been permitted to engage in
war; — and in the (ame manner.^ alio, as a contradt of fealty or Tub*
jeCtion is valid; (for, if an alien were to execute a contract of fealty
'^fore a flavct. atid the flave agree thereto, the contract is valid f ;—
ahd fo here likewife.)— The rcafon why a flave, not licenced to cn-
• In oppoTiiion to the ftiteof in infidil^ who not being sUoveJ to cacrjannt, is hdd
incapaMc of lefiftioce.
t That b, the alioi. is made a 2iMMr» or fubjeaoftheifaj^Umrff ftatc
CBAf. in- INSTITUTES. *57
gage m war, b held in the iacne light as one who is licenctd^ is that
f be caufe of the validtty of the proteaion granted bjr the Ucenced (lave
is his bdng a ieUewr^ and coniequentljr capable of reliftance ; and this
drcttinftance is eooftitated the caufe, oin the ground thzt faitb is coa-
ditional tofiety^ and war [with- infidels] is an aft of piety.-^This
fmver of refifimce^ mortovert is made a condition, iri order that the
proteftion may be eftaUifted as from its proper (burce, fince the ob-
jeft of fear b the objeft to which to look for proteftion- Now as the
flave in queition poflefles ^ power of refiftance, he \& feared^ and pro-
tedHon may therdbre proceed from liim ; and the advantage of protec-
tioQ (namely, the advancement of rdi^n^ and of the A/i^Amv in-
terefts) b alio obtained; for the qoe(tion fuppofes a- cafe in which the
mtereft of the wbok bofy^ MMfftdmmu b concerned. It being de-
menftrated, therefore, that the cau&s of the validity of a proteftion
grairted by a licenced flave trtkKef^ and a confequent/otcvr ofrefijlance^
and thefe eaufes exifting equally in the (lave who is #0/ licenced, it
fellows that hb proteOion b equally valid: — ^but yet it b not lawful for
him tofifit^ becaufe thb would be contraiy to his- mafter*s intereft *,
— "whereris the granting of protedHon bong only afpeecb^ the intereft
of die mafier can in narefpeft be endangwed T)y it. — The arguments
aSHmuefm on thb fubjeft are twofold;— first, a (lave who is not
MceMCid to fight b snAiUttdyhm^f^tkig^ whence- his proteiElion b not
valid; becauie the infidels have no fear of him, and'confequcritly he
cannot be the (burce of protedion, (fince the abjeff qf/ear b the ob«
jeft to which to look for prote&ion, as was already obferved;)— «nd
fiidk being the cafe,, a proteAion granted by him is of no eflTeA : con«
truy to a flave who is./ir#mr/to fig^t, fince he b efbbUfliedthe ckje&
•ffe8r«--^JKOK]>LT, fitting bnot lawful to the inhibited (lave, as
dd$. it an aft which aAfti hb. mafter in fiich a modeas to create an
iqnprwenfioQ of damage to him.; and the (hve's granting proteftion is
al^of the (amenature, bteaufe granting proteftioa b one branch of
^ AskiroyMcBfai(crtiiclifeof.tii€Jbvc, who it his ma/lcr'i property.
military
158 INSTITUTES. Book IX-
tnilitary authority, iince the dcfign oifybthig U to remove the wicked-
nefs of the itifideli, and this end is obtaiaed by granting proteAion ; the
flave*s granting protedtiout therefore, is one of the branches of war ;
and in this there is an apprehenfion of injury to his mafter ;«i*for a flave
fometioies makes a mUhke in granting proteOion, (nay, it is the
rather to be apprehended that htjbpuld make a miftake,) becaufc, as
ills time is chiefly employed about his matter, he cannot be expcri*
cnced in war^ and hence, if his proteOion were valid, plunder would
be precluded ; and this is an injury to all the Mujfulmam^ of whom his
maher is one. The protection, therefore, granted by an inhibited
flave is an a£fc of military authority, in which there is an apprehenfion
of injury to the mafter, and confequently is not valid. It is otherwiie
where a flave licenced to fight grants a proteOion, becaufe this is valid,
although it admit an apprehenfion of injury in reiped to the mafter,
fince the mafter appears confenting to his own injuiy. A licenced
flave, moreover^ is feldom guilty of a miftake, becaufe he is accus-
tomed to fighting. Thecafeinqueftionisalfi>differentih)macoa«
trad of fealty ; becaufe fuch a contra^ is a fubftitute for converfion to
the fiuth, and therefore fiands in the place of a call to the fiuth ; and
alfo, becauie fuch a contraA is as a balance to c^tatm-taxi and alio,
becauie conient to fuch a contra€fc, when the infidek defire it, is or-
dained; and the fulfilment of a divine ordinance is peculiarly advanta-
geous: hence there is an evident diftinOion between granting pro-
teOion and aflenting to a contrad of fealty.
TiMprotcc^ If a boy of immature underftanding grant tproteAioo to an infidd,^
^aS^F^aot htt pfote£tiont like that of a lunatic, 'is not valid.— If the boy be<if
^*^ mature underftanding, but not lioenoed to engage in war, thai ooo*
cerning his protedion there is a difference of opinioot the finae at
before mentioned refpefting the unlicenced flave: if, however, this boy
be licenced to engage in war, his proteftkxi is valid;— and this as ap-
proved.
CHAP.
CaAP.IV. INSTITUTES. 159
C H A P- IV.
Of PIuQder, and the Divifion thereof.
Ip.the Mm coiMjaer a country hy force of anni,. he i» *t liberty to
divide it among the Nbifubiumtt (in the £uae manner at the lira|Aet ^SS!^{^,
divided KMir among hit Mowert:>-or, he may leave it in the *iMtaoiig
handi of the original proprietors, cxaAing fiom them a capttatibn-tax, tXwK^
andimpbfingfttributeupontheirbndt,intheiamemanneratOiiiMfdid SftSSi^
with rkpeft tothepeopleof /ril.---The Jk^R, theKfoterhat-dHierof vrntmiu.
thefe at hit'epdon, and may prefer that mode which it moft adapted to »i§Mn
hit fitnatioo. Some, however, aflert that ^t former of theft it prefer-
able, where the troopt are neceflitout,— Hud that the latter it preferable,
where diejr are mt neceflitout, in order that die tax and tribute may
be reierved at a fund to anfwer contingendet.— Such it the law with^
lelpdSI to mmtveaUt property and hmdt .••-bot with refped to mcvetAU tnaMMM'
property, it it vnlawfiil to leave dut with the infiddt,. at no mention FogwijfuB
it inadeof it in the ficred writingt.— iS6^ maintaint that leaving «n- Sdi d!ni.
«9vr«^iSrprapcrty with them it dfo unlawful, fince thit would be de-
ftruaive to the lig^ of the troopt s— the lelioquiftment of it, thevtfore,
it Ukgd without an adequate return; and tribute b not aa adequate re-
turn, at it it, comparatively, of triflingvalue. It it otherwife with refpeft
to the feir/in of die infidelt, which the JM» may lawfully rdeafii in
confidcratiaa of 4 ca^tadoo-tax, becauie, at the Jiwte may hwfulty
deftrgy theni^ of the troopt in thdr per(bnt, by putting them all to
death, it IbUm that hit defttoying thit rig^tyir«r«rirrjv, ithwful
•fortkri^ aldiongli dM return be of alri^fii^ nature.— Thit realbning,
however, k nftted-by what it recorded of Q(wr, at above^— More-
over, kafiBg tl)e conquered country b the hands of die hihabitantt.
Up institutes. Book IX.
in the manner before mentioned, \% «dv9ntageou9 to the Mujfulmam^
and advtfeable m refpe^ (q theiQi becaufe in this cafe the inhabitants
are merely t^e pultlvatora of the (oil on behalf of the Mujfulnumsj as
pef AiTfning all th« labourt in the various modes of tillage* on their ac*
^QUnty without their being fubjeAed to any of the trouble or expence
attending it^— With refpeft to what Sbrfei alleges, that *^ tribute
«* is, comp^nti^yf of trifling Value/* we reply, that although tribute
be a trifi$ on the Inftant, yet with regard Xo property it is coofiderablet
on account of its being permaneni.
Airthir thaa If the ImAn ^fjlioquifli to the inhabitants <^ the territoiy their
^^ ^ lauds and perfons, it is incumbent on him to n&fgx to them fuch a
tT^tMT P^^^" ^ ^^ moveable ffsqperty as may enable them to perform
lM4i* their bu%e6^ and cultivate their lands, left abominatbn be induced ;
^nce if he wer« not to leave them thus much property, it would be
abominable.
CftDtiveintjr TifE Imdm^ with rcfpeQ to captives, has it in hb choice to flay
jimml^m^ them, b^ufe th«l prophet put captives to death, — and alio, becau(e
«!icM^ to i!#^ flaying them tenxunates wickednefi r-^-or, if he chufe, he may make
them flaves, becaufe by enflaving them the evil of them is remedied,
at the fame time th^t ih^MuJittmam reap an advantage :«— or, if he
pleaf^i h^ may rcleafe them (b as to make them freemen and ZimmeeSy
according to what is recorded of Omar :-«but it b not lawful (b to re-
leaie the idolaters ofArabht or apc^tes, for reafofts whidi (hall be
hereafter explained.
Mdififiaa It is not lawful for the InUbn to return the captives to thdr
own country, as thb would bo ftrengtbening the infidek againft the
MuffuttnoHs.
tmnoiMr
^>f t|i(iF If captives become Mu/fulmans^ let not the Imdm put them to
i^a^T^ dcathf becaufe the evil of them is here reaiedied withoutflaying them:
but
Chaf. IV. INSTITUTES. t«i
but yet he may hw AUly make them flavei, after tliar epaverfion, be- «»^ "^
caufe the rctfon for makiog them flavea, (namely^ their being le-
cured within i\xe Muffktman territoiy,) had exiftence previous to their
embracing the faith. It is otherwUe where infidels become MnJIkh
mans before their capture, becaufe then the fetibn for making them
flaves did not exift previous to their cooverfioo.
It is not lawful to releafe infidel captiv^ in exchange for the re« ExdiMftaf
Icafe of Muffiilman captives from the infidels.— According to the two ^«m!*
difciples this is lawful, (and fuch, alio, is the opinion cfShrfei^) be*
caufe this produces the emancipation of Mujfulmans^ which is prefiu*-
ablc to (laying the infidels, or making them (laves. — ^The argument of
Hanee/a is that fuch an exchange is an affiftance to the infideb; be-
caufe thofc captives will again return to fight the Muffulnums^ which
is an evil; and the prevention of thb evil is preferable to efieding.the
releafe of the Mujulmans^ (incc^ as they remain in the bands <^the
infidels, the injury only affe£ts them, and does not extend to the other
Mujulnums^ whereas the injury attending the releafe of infidel cap*
tives extends to the whole body of Muffidmans. — ^An* exchange for
property (that is, releafing infidel pnfbners in return for property)
is aifo unlawful, as this is affifting the infidels, as was before obfenred;
and the fame is mentioned in t^e MfaJnA MaJb6oor.-^ln the St/ir Km^
heer it is averted that an exchange of prifoners for fnperty may be
made, where the* Muffuhnmt are nec^tous, becaufe the prophet
rclcafed the captives taken at BldJir for a ranfonu
If a captive become a MuJJulmanni the hands pf the Muffktnums^ AcoBfcuil
it is not lawful'to releafe and ?end him back to the infidels in return for ^i^rS:'
thrir rclct&n^ zMuJiitfnan who is a captive in their hands, becaufe no Und^n-
atd vantage can refult from the tranfa£lion. If, however, the converted ^mcoiQiry.
captive confent to it, and there be no apprehenfion of his apoibtizing,
in this cafe the rdeaitag of kins in exdunge for a MnfiUmam captive is
a nutter of difcretion.
Vol. 11. Y I?
ti% INSTITUTES. BmkIX;
CniivM fr U not lawful to conftr a fiivottr upon captivta by rekafingtheat
rrimM |M. gmttttottfl/«— that U, without Kctivmg aaf thing m ratum* or thchr
f'f*'^' becoming Z/MMMir, or bairtg oiaik flavca. il^Sl ii^ that (hewing
favour to captives, in this wi^ ia UwM^ becaufe the prophac ihewcd
Avour, in this way, to ibme of the capcivea taken at cher battle of
BiJ£r. The arguments of ouriiofion upon this point are two*
fold: PiasT, Go» fays in the ASptm ^* slay ij>oi.atbr«»
«( vHSREvsa YK HMD TMSM;**— iKoiuM.x,.the r^jic of enflaving
theov Is eftaUilhcd by their bang oonquered and captured, awiheno*
it is not lawful to annul chat ri|^ without reoet^ng ibme advant^
in return, in the (ame manner as holds with refpeft to all plunder ;
and with refpea to what S6^a rebtes, that *' the prophet (hewed.
*< favour, in this vray, to (bme oTdte o^ves taken at the battle of
** BiMtf* it is abrogpdng by die tett of the Korm already quoted.
An emit
tJMMmwt Wmsmevek the Iiaim is defiroua oTretonuiy (^Nn^a heftile coun*
bt cwricd try into the Mi^tmm territory, if be (honld happca to have aloi^
MUMMiraa* with him baggage-cactte, fudi as oaan^ camds, and (b forth, and be
btdctroytd. not abk 10 convey them ioto the Jllij|^S(An«» terrilocy« it behoves hint
to (hy and burn them; and hemuft net haoiflring them» or turn them
loofe. Sbi^4il (ays that he (hould leaee then,, becaufi; the prophet
(brbidt us to flay animals (or any other pnrpoie dun to cat them.
Our dodors argue that the flaying ol aninab is lavrlul for any i^
proved end ; and what end can be more approved than breaking the
ftrength of the in(idds who aw cnenuea? After flaying them dicy
tanSt be burnt, in order that the infidda msf not^ derive any advantage
from them, whence this anfwers dur fi«M purpole aa deftroying
buifdings or dwelling phces * : contrary t» burning itfin flaying» at
tlte preset has (brbidden thisi and cootnry, al(^ to bam'/lraigi^g^
asthisis^j/!f«ri/ifg,andthatalfi»is(brbiddenf. b thc^wae manneci
• PhMUjr laMRtng Hit buiMnti^ C^- ^M* *»MtfUmm,4mi0% Mr fliy to *•
•••^ •••■••• y^ nnvy i^vw %aivBa«e^MP^v^l^ Wt&&t VW^^vvWiiHVVWlSP
t Chip. II. |l. lite.
CHAP. IV. IN ST I T U T E S. t(j
thc/mim moft bom all fudimilittrjr (lores asare capiMe of bring
bonit; and what aumot be deftrojrcd in this way muA be buried in
dime pbce which the infidek mc ignorant of, in order that they may
notmake advantage of it.
Tab im^m misft not divide the plunder in tlie country of the TKe pimidtr
enemy, but muft make the diftribution of it in the MitfidmoM territory. SIvJaJTiiMli
Sin^ holds that it may be divided in the country of the enemy. |^||j[|^f^
This diverfity of opinion b founded in a difierence of tenets; for M^£Lm
with our doAors the plunder is not the property of the troops, until
it be brought mto the MuJiUimm territory, — whereas, with SAqftX it
is the propeKy of the troops before it be brought intotlie hbijubmrn
Unktcfy. From this difference in princtpte proceed a number of ca(es
concerning which they dtfller, as related at large, by the author, in the
Krfiyat-4d^hl$mtibei. The argument ofSbi/ii is that the caufe of
right of property in plunder is conqaefi^ where that conqueft extendi over
property of allowable ufe, in the fame manner as conqueft is the caufe of
right of property with refpeA to game : now conquejl means nothing
more rhMnfukftSim uAfimin ; and thofe are fully eftablifhed with re-
fpeA td the plunder in queftion. The arguments of our doflors upon
this point are twofold : fitar^ the prophet has forbidden thej&/lr of plun^
der in the country of the enemy ; and as a ^ftribution of property is in
«f&a a/ifr, a pft^ibition in refpeft to ihit/ak extends to the (Hfiributkn
likewifb :-^BCOif dly, in the cafe in queftion conquefl is not efla-
Uifhed; becaufe Mif nr^ fignifiesySr^fv^isfr ^nAfei%in^ of fuch a nature
that the feizer is capable of prote£Ung the plunder, and aUb of
carrying it frooi place to phce; but in the cafe in queftion, the
captors of the plunder may poffiUy be incapable of carrying it off
into the Mmfmkmm territory, as the infidels may be able to tefcue it
from the hands of the Mufiifmans^ fince the property is iUll in their
"* ce^tr^w---Soaieallegethatthe^
v>jisi^^^ this queflion.---Do the <fr«.7i of right of
lY^P^@ » ^^ cmimjak. and fo forth%} uke
• Witt i«%«a t. iht WMNM or prapmjr Cikn.
Y a place
j64 institutes. Book IX.
place upon the divifion of the plunder in the enemy's country, where
the Iinam divides it at once without further trottblc»«--or do they not I
*»According to Sbafei^ the efic£te aforefiiid uke place immediatiely
upcb the diviiion ; but in the opinion of our dodors th^^ not take
place; and hence it follows that with Sbrfei the plunder becomes the
property of the troops before its being conveyed into the Muffuhum
territory, (ince the efieds of a right of property cannot exift without
the eiiftence of the property it(elf;-»but with our do£U>rs the' plunder
does dot become the property of the troops until it be brought into
the Mujfnhnan territory, (ince if it were their property, the efie6b of
a right of property would take place upon the diftribution of it in
the enemy's country.
IHa^^^x. ^^ fliaring tlie plunder, the warrior Mid the auxiliary (bang
^^^fal prefent with the army,) have an equal daim ; bccaufe the foun-
Septeadcri dation of a right to plunder, according to our doctors, is the <« going
^^ MP ^^ hwndary of the Muffulman territory with an intention
•* tofgbt(^ whereas, in the opinion ^^{Shrfti^ aSuat'^efence^ (that
is, hoingfrtftnt at the place where war is carried an,) is the caufe of
the right; and the warrior and his ailiftant are equal with refped to
the caufe of the right; -and fuch being the cafe, they are equal in
sharing the plunder* In the (ame manner, a perfbn who has retired
Ml alTa Ike from the lervke by the admifTion <^ an excufe, (fuch z%jkknef$^ for
inftance,).is on an equal footing with him who aAually jfPjfifr/x, be-
cau(e he alfo b, in point of rights upon an equal footing with him
who is aftually engaged*
«dlL» any ftl I' rdnfbrcements join the army in the enemy** country, before the
IrSyS"** pTunder is conveyed hito the Muffulman territory,, they are entitled to
chtMjrbt* a full (hare of the booty« Shefei (ays that if tbey join the army
4crMcJfM ^Hci} the fighting is finilhed, they are not entitled to (hare with the
^* warriors,, becaufc, in lus opinion, the plundtf becomes the propect/
of
CitAF. tV. i NS T I t tr T £ S. 165
of the troops on the in(hnt of its feizure, wherefore no perfbh is
afterwards entitled to (hare with them in it.-~ According to our
doAors, on the contrary, the plunder is rendered the property of the
Mujfulmnns^ only by the ctrcumftance of conveying it into the Muf-
falman tertitoryi or the diftribution of it hi the enemy*s country, or
the fale of it there, (for by any of thefe the right of the troops is
eftabliflied ;) here, therefore, no other peribu is entitled to (hare with
the troops, whereas, any pcr(bn who joined them previous to the
dLvi(ion« tec. would have a cbim to (hare with them^
Thz folkwers of the army have no right in the plunder^ unle(s Fa^wm^
they actually engage in fight with the infidels. According to one iatL^M?*
opitibn oiSh^iif they are entitled to a flitre in the plunder^ in con- J^ gjj
fctt^mity with a fa/ing of the prophet^ ^^ lie f binder hebngi ie ibofe
^^ wA§ are tf^ji«/(r/r^/;**-^4jnd alio, beciu(e the followers are
likewife engaged in effeff^ as they tncrea(e the gener^ ftreng^h of the
army. The argument of our doftors is that thofe do not go into
the enemy^s country, or pafs the Mufulman borders, witji any defign
of JlgAiingi and this is the apparent caufe of a right in the plunder;
and as the apparent caufe does not exi(l, regard is had to the aSiual
cau&t namely, enge^ng in fybt. \U therefbrct they ^/^/, their
right is e(fatbli(hed in proportion to their ftdtions ;— that ist if they
fight on Iwfeback^ thty are entitled to a horfemaA^s (bare, or if on
yoo/, to a foot-foldier*s (hare. With refpeA to the tradition cited
by Sbqfei^ it means that ** the plunder belongs to thole who are
^^ zSivaBXy ^feni w^^
Iv the /inlm be ndtpoflefledoF carriages fufficienjt fi^r the convey- i^ *Mof
ance of the plunder into the MnJIulman territoryt lie muft dtftributc Xm^MMJt
it among the troops, committing to each pcrfoithis refpedivc (hare, "1^*^!^
in the manner of a depofit, until they brmg it into the Muffulman *^^ '
territory, when he muft take it back from them, and again, make a
fcgulaj
tffoopt*
t66 INSTITUTES. Book IX.
regultr dUlribvUion oTit. The eompiler of the HeJdf^s remarlu that
this it what b inentioDed bf KadMree, b lus abridgment of his oWn
work : and he does not make the ttif/itit of the troops a condition.
The fiime is aUb mentioned in the Sej^ir Ktiter. In Ihort, if there be
among the plunder an/ carriage cattle, fuch as camlt, b»rfis^ afet^ or
' mukst the btim muft UMd the plunder upon them, bccauie here the
plunder and the carriage are both the property of the troops; and the
rule is the (aroe, if there happen to be any ^re carriage attached to
the public treafury, fince die eftfts in the public troiiurjr are the
property of all the MuJiihiaHs : but if there be any iiwre carriage at-
tached to the troops, or to any part of them, yet the ImSm muft not
forcibly icize them for this purpofe, beoaufe this is Airr, and compul-
fwn in bSre is not hwful; in the 6me manner, as when, a pertim's
animal periihcs, upon a retreat, and his fervant happens to have ftme
iptre carrnige, in which cale he cannot compel his fervant to hire him
fuch fpare carriage.— 'This is according to the Sej^ir Si^Aetr. Ac-
cording to the St^ KahtTt the itete is at fiberty to ufe compulfion,
for the purpole of havmg the plunder carried, becauie this is pre-
venting a gnenJ and jmMe ksjufy by the commiflion.of a frhuae
injury.
Tte fiMkt It is not bwful to^ plunder whilft in the enemy's oountiy, or
jM iTdM before it be regularly diftributed, becauie, until then, it is not piyferty.
"* According to SS^g'i the fale is lawful, becaufe he holds that the
plunder beoomes property upon tlteinflant of its capture.
^. Ir a warrior die in the enemy's country, he has np ri^t in the
fM». plunder; but if he die after the plunder » brought into the Mufti/'
rijS*Jlir "^ territory, in this cafo hu ihare goes to his heirs. The reafon of
2^**^ thb is that aftual right of property is eflcntial to inheritance, and the
warrior has not any right in the plunder-before it be brought into
the UMmtm territory, whereas ^fler it is faiuugbt within he has a
right
CfiAP. IV- 1 N S.T I T U T E S- 167
right in it, Sbufei^ on the contrary, tnaintains that if the warrior die
afi^ the defeat of the iiiBdelSt his (hare goes to his heirs, becaufe he
hoMs that the plunder becomes the property of the troops upon the
infidels being defeated.
There is no objefKon to the troops feeding their cattle with Th« ^'j^P*
plunder * whilfl in the enemy's country, nor to thcmfelves eating eatMt trti-
iiich plunder as is fit (or food^ fuch as hread^ oit^ and fo fortli. The ^**
compiler of the Hedaya obferves that Kddoaree^ in his abridgment,
mentions this abfolutely^ and does not reftriA it to the condition of ne^
cejjity. There arc, however, two reports relating to this fubjefl :
according to one^ the liberty is reftri^ed to the condition oi necef-
fity ; and according to the other it is cr/r-reftrided» The reafon
upon which the ^/y? report proceeds is that the forage or victuals
in queftion are a parttierjbip property^ and hence thefe z6ts are not
permitted with refped to them except through neceflity, agree*
aUytothe rule which ttfyt&s ammals^ or cloib: and the arguments
upon which the ficmd report proceeds is, first, that the prophet
&id, ztKbeeUr^ " Eat the TOOD/oufid in the plunder^ and feed your
** caitie wiib the FOKAGE, and da not carry it along with- you^ or
** board it up:^^ — secondly, the pomt of law rcfts upon the argu*
irimX c3f neccifity, and not upon aeceflity itfelf: now the argumeni of
neceflity is certified, namely, the circumftance'of the troops being in
an enemy *s country ; becaa(e a foldier does not carry along with him
into the enemy's country either fubfiflence for himfelf or forage for
hb cattle fufficient to ferv^ during his refidence there j,«and in.
time of war caravans catmot fupply troops witb fubfiibiice. The
food and forige, therefore, remsun allowable to u/e upon the groundof
thcargtanent ofnccdSty. It is otherwifc in regard taweapons or armour^
as it b notjawful for the trooplto take thefe firom i\it plunder^ becaufe
they carry arms abng with them, and hence thcargument ofneceflity, in
* Such as greUi^ &c.
I refpcffl
t68 INSTITUTES. BookIX.
reipeft to arms» is not eftabliihed : but yet regard is had to aSual ne«
ceflity in refped to the u(e of them; and hence, if any neceifity
occur for the ufc of fuch arms as may be among the plunder, it is
lawful for the warriors to make u(e of them, afterwards returning
them into the plunder: and cattle ftand in the fame predicament
with arms in this refpeft.
^'^\ ^^^^ There is no objection to the warriors udng wood [(eized as //irn-
my be con- ^^^] in the enemy *s country. It is aUb lawful for them to make
verted 10 ufe. gf^ of 0/7, fuch as oil of olives, and alfo greafe, for foftening the
hoofs of their cattle ; bccaufe there is fometimes a neceflity for thefe
articles.
Viattaii,(fr. It is not lawful for the warriors to fill vlQuah^^ foraj^t^ %tA
itfiTi^^J^ fo forth; becaufe the legality of ^Ar depends upon the article ibid
ht/M. being property ; and thele are not their property, (according to what
has been already advanced,) the eating of the victuals or ufing the
other articles being lawful only by allowance^ in the fame manner as
when a perfon allows another the ufe of his v]£tuals, in which cafe
the the other may eat them, but cannot feU them. It is to be ob-
lerved that the prohibition of /ale novt mentioned implies that it is not
at all lawful for the troops to fell thefe articles in return for either
goliyfiher^ or ejfe£ls. If, however, they (hould fell them iot gold,
filver, or' efieds, it is incumbent on them to lodge the price along
with the reft of the .plunder, becaufe this price is a thing held in
partnerihtp by the whole army. In the (ame manner, it is not law*
f(kl to difpofe of thofe articles in return for provifions or cloathing,
without neceflity ; but if a neceffity for provision or doathing occurt
the articles in queftion may lawfully be difpoied of in return for thefe
neceflaries.
fhmitr can. It would be abominable in the troops,- without neceiCty, to make
irife^bUItJ ^^^ ^^ ^'^'^ ^^ ^^^^ (imilar articles of plunder, before the regular dif-
tnbutioD,
Cha>. IV. INSTITUTES. 169
tribution^ bccaufc thcfc articles arc, until then, held in partner* ctfcsof «-
(hip.. If, however, the troops (land in need of cloth, cattle, or '^^
other articles, in this cafe the Imdm mud diAribute thefe among them,
although in the enemy's country, becauie as a t\\\v\%proh}bi:cJ by tht
law is fometimcs allowed in confidcration of neceflity, it follows that
a thing which is merely abominable*, is allowed in a fimilar cafe, a
fortkri. The foundation of this is that the divifion of the articles in
queflion is abominable only from the appreheufion of fuccours joining
the army in the enemy's country ; for thcTc arc equal panners with
the reft of the troops ; and if the plunder were divided before their ar-
rival, and they then join the army^ it would be impoflible to obtain
reftitution, for the purpofe of paying the auxiliaries their fhares,
(whence it is that the division of the plunder is delayed until it be
brought into the MuffuUnan territory and this apprehenHon re*
moved :) — but when the troops ftand in need of the cloth, cattle, or
other articles, in this cafe they may be diftributed among them in the
enemy's country, becaufe the right of the auxiliaries is merely frfh-
table J whereas the ncccfUty of the troops is certain^ a^d therefore of
prior confideration. Nothing is here faid concerning the rule with
reipe& to arms, znd armour: there is, however, no manner of difier-
ence between thefe 2nd c/of6 or other articles, for if afiy of the war*
riors fbnd in need of them,, the u(e is allowed to him, and if all the
troops fbnd in need of weapons and accoutrements, they muft be dtf^
tributed among them. It is otherwiie, however, in the cafe of a want
of male or female (laves, for of the captives no diftribution can be made
on any plea of neceffay^ becaufe they come under t)ie dcfcription of /Vi«
dmfitkplun^r f. .
!r, in tb'e langvage of the MuJ^lmam liw, oieaiis a thing not akfiikiiely
iB^d^ but Tifrti^tid or tlifapfnvid.
t The onljr method of dividing plunder which confiftt cttrnftiva is by felling them tt
ibe end of the expedition, and throwing the price for which they are fold into the general
ftock of plunder. Plunder cenfifting of iatiU is alfo divided in the iame way, but as they
afe,comparatively> of triSing moment, thi« is no objeAton to the ufe of them.
Vol. II. Z Tf
170
An alien, be-
coming a
€onveit» prt«
ferves hb
libcrcxand
propcrty« md
Lit infar.t
cfcitdren ;
INSTITUTES.
Book IX.
If a hoflile infidel become a Mujjulman in the hoftile country, his
perfon is his own, (that is, he cannot be made a flave,) becaufe a
perlbn who is firft a Muffulman cannot then be fubjeded to bondage,
as his IJldm forbids this. — In the fame manner* his infant children
belong to himfcif, becaufe they alfo are held as Muffiilmans^ in de-
peudance of their father.— rSuch of his properly^ alio, as is in his
hands is his own; becaufe the prophet has faid " whoever becomes a
*' MussifLMAN, and is poffeljid of property^ in his own hands^fucbpro^
** perty belongs to him *^^ — ^and alfo, becauib his hands have firfl laid
hold of that property, in the manner of the hands of a conqueror.—
In the fame manner fuch of his property as is a depofit in the hands of
a truflee, whether z Muffulman or a Zimmee^ is alfo referred to him,
becaufe the fcizin of the truflee is the fame as that of l\ic proprietor.
bat his lands
are public
property;
If the Imam fubdue a country by foice of arms, the lands which
were the property of one who has embraced the faith become the pro-
perty of the public treafury*.—- 5i&^i maintains that his bnds alfo
continue to belong to him, becaufe they are in bis bands^ and hence
-are fubjefl to the fiune rule as moveable property* Our doctors, on
the other hand, allege that bis lands are in the hands of the fiate^ or
•of the fbvcreign of that territory^ (as they are a conflituent part of the
country,) wherefore they are not, a ceriiori^ in bis bands. — Some
t>bferve that this is according to th^ opinion of Haneefa^ and a recent
opinion of Aboo Toofcf: for, according to the opinion of Mobammedy
and zfonner opinion of jibeo Toofaf^ the lands of this perfon are in the
fame predicament with his other property. — This difference of opi-
nion originates in a diiferenc9e of dofbine refpc£ling the tenure of land ;
for Haneefa and Aboo Tb^/^hold that feizin is not eflablifhed, a certi^
ori^ in lands ; whereas Mobasnmed holds that it is cflablifhcd. — The
* Arab, fu^ meaning that proportion of the plunder which i« the right of the fiate.-*
The tnuiflator avoids introducing it here, from its fioiilarity to the feudal ttrm/rr, which
bears quite a diflfertnt fenfe; and has thercfort rendered i^ throughout, pMU ffftrtj^ or the
tr^€rty •ftUfiaU^
wife
Chaf.IV. institutes. 171
wife alio of this per(bn is public property, as (he is an alien, and is ^n6{ot\(ohU
not a dependant of her hufoand with refpcd to I^afn: and her fcctus ybSC/'*" *'
is alio under the fame predicament. — S&q/i'i maintains that her foetus
is not public property, fince it is a MuJUman in dcpendance of the
father, in the (ame manner as infant children. — Our do£lors, on the
other hand, allege that the fostus is a portion of the woman, and is
therefore a (lave in confequence of her becoming a flave, (ince (he is
a (lave in all her parts: and with refpeA to what is advanced l)y Sbafc'i^
that ^* the foetus is a M^Jfiibumj in dependance of the father, in the
" (ame manner as infant children,** — they ohfcrvc that although the
foetus be a Mujftdman^ yet-a Mujfulnum mzy be a fubje^t of bondage in
dependance of another per(bn : contrary to the cafe of infant children^
as the faid children are free^ becau(e, after being born, they are no
longer a portion of the mother. — The adult children of this perfbn are and hit tf^«//
alfo public property ♦, becaufc they are infidel aliens, and arc not de- j^'Jf^?"' *"^
pendant of their father in ^/w:— and fo likcwife his (lave who fights
again(l the Mufubnans^ becaufc the (lave, upon throwing off* his fub-
je£lion to his mafter-f, goes out of the po(re(non of his ihaftcr, and
becomes a dependant on the people of that territory. — ^In the fame and his pro-
manner, fuch of his property as is in the hands of an infidel alien^ SaT/ZoriQ.
whether in the way of ufurpation or dcpojrtf is the property of the ^^f^J^Mp
date, becaufc the (eizrin of an infidel alien is not of an inviolable na- m«i, bf
ture : — and fuch of his property as is in the hands of a Mujfulman or a ■'*•*"••
Zlmmee^ in the way xX ufurpation^ is in the fame predicament. — ^This
laft is the opinion oiHaktefa. — The two difciples maintain a contrary
opinion, for they argue that the property i$ a dependant of the pcHbn,
and as the per(bn of the proprietor is under protection in confequence
of his converfion to the faith, it follows that his property is alfb \mdcr
protection, as a dependant of his perfon. — The argument oflianeefa
• That is to lay, are made (laves, and as fuch united to that pan of the plunder which
tt the property of the date.
t By uniting in (^ againft the believers, of whom his nuAer is now one.
Z 2 15
171 INSTITUTES. Book IX.
is thtt the property in quetlion is of ^ neutral nature*, and therefore
liable to be appnopriated by right of conqucft :— and as to what the two
difciples urge, we reply that it is not admitted that the perfon of the
proprietor is under protection ** In confequence of hU converfton to the
*• faith^^ for the molcfting of him is origiruUy unlawful, (as appears
by his being required to embrace the faith, fmcc if he were originally
deferving of death, he would not be required Ko to do,) and is ren-
dered allowable only by ^fupervenient circumilance, namely his wick-
ednefs, [that i»^ his infidelity;] but by his converiion to the faith his
wickednefs is removed : contrary to property^ as that is originally cre-
ated for the purpofe of being u/ed^ and is therefore a proper fubjed of
appropriation. Moreover, the property in queftion is not in his hands
cither a^ualfy or viriua/ly: its not hemg aciually (6 is evident; and
it is not virtually fo, becaufe the feizin of the ufurper does not ftand
^ the feiiin of the proprietor^ and hence the protection of the pro-
perty is not cftablilhed. — Thus it is demonflrated that Kis property is
diftindl from his per/on.
Thc/$r^t Upok the Mujfulman army evacuating the enemy *s country, it
uken awft' becomes unlawful for the troops to feed their cattle with forage be-
X^hccta. 'onging to the plunder ; — and, in the lame manner, it is unlawful for
cttttiooofihe ^hem to cat of fuch victuals as make a part of rhc plunder; — becaufe
country; the troops fubfiAing thernfelves, or feeding their cattle, our of the
plunder, is allowed only on the ground oinecejfity^ which is then re-
moved ; and al(b, becaufe the right of each individual [in the plunder]
is then confirmed, whence it is that the ihare of one who afterwards
dies is hereditable, whereas, before the evacuation of the enemy's
andfttchof it Country, no perfon's fharr is hereditable.— If, alfo, after arriving in the
" JTSf'*** Muffulman territory, there (hould chance to remain with any of the
turned into troops a part of the plundered food or forage, it mufl be returned into
HwtK*** " the Ibrcs of fpoil, provided the general diftribution of that (hould not
* Arab. Mciab: that is, not under any cflcAiul proccOioru
yet
C«AP.1V. INSTITUTES. 173
yet have taken phcc^—SAi^i in one place agrees with our doctors.-—
In another phce he aflerts that thofe articles are not to be returned into
the plunder ftores; upon the £ime principle .that a warrior, ifhc Jfeal the
-property of an alien, is not required to deliver it into the plunder ftores,
because this is property of a neutral nature, upon which he has laid
his hands firft. — ^^Our dodors, on the other hand, allege that the ap«
propriation of the food or forage to the perfon in whofe hands they
remain was only /rmn neceffity ; but upon arriving in the Mujfulman
territory this neccflity is removed : contrary to the cafe of a warrior
ftealing the property of an alien, becaufe, as he obtains an exdufive
ri^t in that property before his arrival in the Mujfulman territory, it
follows that he has the fame exclufive right in it efter his arrival
there. — ^If, moreover, the forage or provifion in queftion remain with
any one e^er the general divlfion of the plunder, in this cafe, pro-
vided the poifeflbr be rich, he mud beftow it in alms ; but if he l>e
fwr^ he may convert it to his own u(e, becaufe tlie food or forage
then ffamd in the fame predicament with a lAoktUy or trove property,
fince the reftorattion of it to the troops is become impoflible. — If, al(b, or, Vmfid.
any peribn ihould ufe the vi£fcuals or forage after arriving in the ilf^ muft beac
fidmam territory, and before the plunder is diftributed, it is incumbeht ^^^^ f^*
upon him to pay the value thereof into the plunder ; or, where the
plunder has been diflributefl, he muft, ifwea/tfy^ beftow the value
in alms.; but if/oor, nothing is due from him, fince the value of a
ifhing is a fubftitute for the thing itfelf, and is therefore fubje^ to the
iamc rule.
SfiCTIOK.
^74 INSTITUTES. Book IK.
SECTION.
Of the Manner of the Division of Plunder..
One fifth Ik making a divifion of the plunder, x}tit,lmiw muft (ct apart one
Stt.a^four ff^^ ^^ ^^ whole, and diftribute the xcm^xviyxi^four fiftht among the
fifths to the troops, as it was thus the prophet divided it.
troops*
TheiUre of The ftiare of a horfcman is double the (hare of a foot foldier, ac-
tJi^tha'l^of cording to /fowg/i.— The two difciplcs fay that the (hare of a horfc-
a foot foldier. j^-^a IS thrice that of a foot (bldier, (and fuch alfo is the opinion of
Shafci^ l^caufc it is recorded by Abdoola Ibn Omar that the prophet
gave to the horfeman three (hares, and to the foot (bldier one (hare,
for this reafon, that the right to plunder is in proportion to the duty
and the^/Qi//^«/,-^and the horfeman performs three (cveral duties;—
firft, Kirr^ or attack, — fccondly, Flrr^ or retreat, (made by way of
(Iratagem, or with a view to return to the charge with incrcafcd vio-
lence,)—and thirdly, Ijbat^ or (landing firm in one place,— whereas
the foot foldier performs only one duty, namely IJbdt or (landing in his
pod. The argument oiHaneefa is that Abdoola Ibn Abbas relates that
the prophet gave to the horfeman two (hares, and to the foot foldier
one (hare; now this is irreconcilcable with what is related hy Abdoola
Ibn Omar^ whence a contradiftion appears between two a£ts of the
prophet; and fuch being the cafe, the faying of the prophet is ad*
hered to, •• to the horfeman belongs two Jhares^ and to the foot foldier
** Q^zjharey — Ibn Omar relates, moreover, that the prophet gave
three (hares to the horfeman, and one to the foot foldier; and alfo,
in another place, that he gave to the horfeman two (hares, 9ad to the
foot (bldier one (hare; and as thcfc two accounts arc contradictory, a
6 preference
Chap. IV. INSTITUTES. 175
preference is given to the relation of another perfon, namely, Ibn
Abbas. — ^Befides, attacking and retreating arc of the (ame nature,
whence it appears that the horfeman performs no more than two
duties, and the foot (bldier m^ duty ; wherefore the (hare of the horfe-
man is only twice as much as that of the foot (bldicr:-— moreover^ a
regard to the heavier duty of the horfeman is impracticable, as it is a
matter which cannot readily be afcertained: hence the rule, with
refpc£t to the (hares, muft turn upon the apparent ground of claim to
plunder; and on the part of the horfeman two grounds of claim ap«
pear, namely, his perfon^ and his borfe^ whereas, on that of the foot
(bldier one ground only appears, namely, his ferfon ; — the horfeman,
therefore, is entitled to twice the (hare of the foot foldier. — It is proper • Ahorfemia
toobferve, however, that nothing more is to be allowed to a horfeman ul'^jr^ailog
than the (hare on account oione horfc, although he have along with fS^a^jEJ^^
him two horfes, or more. Aboo Too/of hy^ that if he have two horfes, ^^ **» «*
or more, the (hares on account of two hor(es are to be allotted him,
becaufe it is related, that the prophet once allowed a horfeman (hares
for two horfes,-*-and al(b, becaufe one horfe is liable to be (ick or
torn lane, whence there is a neceflity for another horie.*-^The argu-
ments of Haneefa and Mohammed are twofold.— *first, Birrayeen
Awoos carried with him to the wars two horfes, and the prophet al*
lowed him only a (ingle horfeman^s (hare: — ^secondly, one man can-
not fight upon two horfes at one time, wherefore two horfes cannot
he confidercd as affording two chims, whoice it is that where a per-
fon has three hor(es, yet he is not entitled to a (hare for three, — With
refpcft to what is related by Aboo To(^af^ it is to be thus explained,
that the prophet beftowed the (hare for two hor(es upon the horlemau
in the way of a gratuity^ — in the (ame maimer as he once allowed
Salima Bin Akooa two (hares, when he (erved as a foot foldier.-^lt is Hoiietorall
alfo proper to remark that a Birzoon ♦, an Arabf^ an HoojeenX% and a equ^iUy'^
Mokarrif^^ are all equally capable of giving a clahn to plunder: be- o^^^,^^
n K kcsvjr draft h$r/e. t A/^f hhut. J A facihrfi. f An Mf^M.
caufe
17^ INSTITUTES. BodK IX.
flwireas^A caufc thc cxprcffion in the Koran, IrhAb, (that is, flriking terror;).
has a reference to the preceding word khbbl, [a troop, ox fquadron^l
and the word JCift^^/ comprehends all thofe kinds without diftin^ion ;— •
and alibi becaufe akhough an Jlrab be apparently of the (Ironger
make, yet a Perfian horfe is the more docile and managable ; regard
is, therefore, had to the advant^s of each refpe^ively, and hence
they are both upon a footing. — ^The BtrsuHmlz a horfe of the Perfian
breed, and the jlrab is bred- in AnAiai the Hoyeen, on the other
hand, is zMoo/dnis, or ifrii^breed, whole dam is vijIraS and his fire
a Perfian\ and the Makarrifis. alio an bdf-breed, whoie fire is an jlrab^^
and his dam a Porfiani
TKe horfc ^ ^ perfbn enter the enemy^l country^as a iwfeman, and his hori&
ftrovcd^ be afterwards dedroyed, he is ftili entitled to a horfeman's (hare of
Mchnraiidtce plunder; but if a per(bn enter the enemy's country qq/m/j and then
Su^!!^^ purchafc a horfe, be is entitled to ^fiot Ibldier'i (hare only. This is
• koHeaua'f ^^ Zibtr^RTwdyeti-^^Sbrfn maintains the reverfe of what is here ad«
vanced; and Ibn al Mobdrkk records, from Hmuefa^ that, under
dieySram/circuQiftance, the perfon is entitled to a borfinuof^ (hare.-~
Ih fliort^ with our dodors regard is had to the (tation in which a per-^
fenpofles the Muffidman boundary, whereas with Sbrfei regard is had
to the ifadon the perfon holds at the end of the fervice. The argu-
mentof 5i&^ is diatit is the aft of making war which is the caule
iDf a rig^tia the plunder^ and'hence regard is paid to the ftation in
which a perlbn is at the time tf fighting, the pafling of the Mufulman
boundary being only an /if/r0i£v^/M to the caufi:, in the fame manner
as going ourof a.hou(e:<^*and if (as the Haneefites maintain) it were
impoffible to aicertatn the zQml fighting, it wouU follow that the
mere affual ffe/encevrovlA be a caufe of right in the plunder, fincc
aftual prefence is eaftly afceruinable.-T-The arguments of our doftors .
upon this head are twofold.— first, going forth is the commence^
mcAt of the war, bccaufe it impreflcs terror upon the infidels ; and
the continuance cohAitutes the war itfelf :— but regard is not paid to
3 ^hc
Chaf. IV. INSTITUTES. 177
the continuance^'^BECoVDLY^ it b difficult to obtain any certain in-
formation refpefting the djEtuzl/gbfmg; — and (6 alio, concerning the
a£tual prefcnce^ becaufe that has regard to the time when the two ad-
verle armies are drawn up in battle array againft each other, at which
time it is not ea(y to afcertain who adtuaily engiages in fight, or who
does not,— or who is prefent, or who is not;— the a£l, therefore^ of
faffing the boundary is made the fubftitute iovfgbiingj ox prefence^ be*
caufe the ad of pailing t{ie boundary extends, with regard to appear^
anctf either to o/^r, or ta prefencc^ where fuch ad was performed
with a de(ign of fighting. — Regard, therefore, is paid to the ilation a
peribn fills (whether that of a borfcman or o( zfoot faUicr) at the time
of pafSng the MuJ/ulnum boundary.
I7 a ipttioix enter the enemy *s country as zUrfcnum^ and after«* a kofiemm
wards fight on foot ^ on account of wanting room, he is entitled to a a^^!^^
horteman*s ihare, according to all our dodors.— If, alfo, he enter the ^^VJ^
enemy's country as a borfcman^ and afterwards fell his horie, or give Ibm as •
him away, or hire or pledge him, he is entitled to a horimun^s ^^'^*"*^>
ihare, (according to what Hoofn reports from Hampfa^ regard being
bad to thelhtion in which he went lbrth.~*According to the ZibirRa^
wiy€t he is in this cafe entitled on\y to fhare as ^Joot fbldier, becaufe his
difpofing of his horfe in any of the ways here mentioned denotes that
he did not go forth with a defign to fight as a horfeman.— If a per- uAmuVl
fbn fell his horfe when the fervice is at an end, his right, which is a ^^^^
horJi9nan\ fhare, does not drop.— Some hold the rule to be the iamef ^'^z ^*^*
if he fellhb horle during the fervice; but the more approved doc* kudaitt.
trine is that he is not in this cafe entitled to a horfeman*s fhare,
becaufe the fale here denotes tluit his defign was traffic, but that
he waited until the fervice began, with a view to enhance the price
of his horie.
VoL^II. A a There
178 INSTITUTES. Book IX-
SUveu w- Theue is no fliarc of the plunder allotted to JIavfSf ivomctt^ cAiU
^Zimmus ' ^cn^ or Zimmees: but yet it is incumbent on the Lnim to bellow
b«ti« te^' fomething upon them, to fuch amount as he may deem advifcable ; be*
pud feme- caufe the prophet, although he did not fix- any (hare for women or
children, yet was acctiftomed to allow them a fmall part ; and alfo,
becau(e the prophet once demanded aid from a certain party Q(Je%vs
againft another party of the (ame people,, and yet did not allow them
any thing in the manner of a Jhare or lot ; and alfb^ becaufe Jibdd
[war with infidels J is an ad of piety, of ^hich Zimmees are held in-
capable ; and women and children are unable to perform- this duty,
whence it is not an.injuadion upon them;, and in tlie fame manner,
a (lave alfo is unable,.as he cannot engage in war or battle without the
confent of his owner:: yet it b requilite that they be allowed fome*
thbg, in-order that they may be encouragedto fight, and that the in-
feriority of their ftation be rendered manifeft. (A.Mai<fr/^isinthefame
predicament with an abfolute flave in thi&particular, lince he is (till in
a (bte of bondage,, and it is po(ni:^e that, as he may'be unable to dif-
charge his ranfom,.his mafter will not pernut him to engage in fight;) —
It is proper to remark,. however, that thb fmall allowance out of the
plunder is not paid to a flave^ except, where, he. aBualfy fights^ as he
goes into the enemy'^ country merely for the purpofe of waiting upon
his mafter, and is therefore in the fame (ituation with a merchant
who goes mto the enemy*s country for the purpote of traffic^ and not
with a view Xofgbtmg. In the (ame manner, this allowance is not
paid to a woman unlefs (he attend the (ick and wounded and prepare
their medicines; becaufe (he is unable aAually to fight \ but her at*
tendance and afliftance are admitted as fubftitutes for fighting: con-
trary to the cafe of zfiave^ as he is able actually to etigage in fight.
ztmmm. aft- In the fame manner, this allowance is not paid to a Zimmet^ un-
Burbeptid' lefs where he fights, or where he z&a as a guides which is al(b of
;;2,JJ[22^ advantage to the Muffuhums ; and in this laft ca(c it is lawful to pay
him even morethzn the (hare oif a Mufulnumi if hb acting as a guide
be attended with any eminent advantage :«r-but wbcn he ^y fights^
what
Chap. IV. INSTITUTES. 179
what is paid him mud be fhort of z Mujulman*^ (hare, bccaule Aghting
is Jihad ^ and a Zimmce cannot be put upon a footing with a Mujful^
Man in the rules of JibaJ: contrary to the caft of acting as a guide,
iince that is not Jihddj and hq may therefore receive a confideration
for it, to any amount, in the fame manner as for any other fertrice.
The Kbamsj or fifth, of the plunder ♦ muft be divided into three Ruk^refoea.
equal portions, one portion for orphans^ one for the poor^ attd one for *"*
travellers +.
If one or two particular perfbns enter a hoftile country, with a
view to pillage, without authority from the /i//^/i, and make a cap*
ture of property, it is not fubjeft to Kbams ; becaufe there is no Kbams
in any thing but flundet^ and the property in queftion is not plunder^
as this term is applied folely to fuch property as is taken from the in-
fidels by open force ^ and not by tbefi or piliage\ and the property in
queflion is not taken by open force.
It one or two particular perlbns enter a hoftile country, by au-
thority of the Jmam^ and make capture of property, there are two
opinions related concerning it; but the mod genendly received opi*
nion is that a fifth is to be deduced from it, becaufe the /i7i«m, in
giving them this authority, undertakes to fupport thorn with fuc-
cours, if ncceifary, and hence they in this cafe (hnd as peribns en-
gaged in war in a puhUc fenfe.
If a party enter a hoftile country, in force, and maScc a capture of
property, what they take is fubjeft to Kbanu^ although they a€k
• Set apart by the Imim^ » berore-mmthmeA.
t A long train of reafoning, chiefly confifting of verbal ertticifins, and the legality of
beftowing a part of the fifth upon the HafHmit tribe, is here omitted, as beiog quite lOeiefi,
and in Cmc places not admitting of an JntelligtUe tnuiflaCi^K
A a a without
i«o INSTITUTE S. BookIX-
without the authority of the ImAn; becaufe this property has been
taken openly, by force of arms, and therefore fsdls under the defcrip-
tion oi plunder ;-«4nd aKb, becaufe it is incumbent upon the Imam to
aflift them, fince if he were not to do (b, the Mujfulmam might appear
weak and unable to oppole tbdr enemies :— -contrary to the cafe of
we or two particular perfons, iincc to afiift ticm is no way incumbent.
Vfon the hubiB.
S ECTIO N.
Q^TAiCFEELy that is^ a Graimty bcfiefwei upon particular Pcrjbnsf
over andabiXDe their. Share ^Plvhdzk.
Gfatwiict It is laudable in the ImAn to hcRow gratuities, in timt of war^
fiooany be. and by means thereof to encourage the troops- to fighty^or more pra*
^*^' perly to render them zealous in fighting,«^by declaring (for in(huice)
^* Whoever kiUs an infidel fliaU have his garmentSt"— and foSorth^
(as will be hereafter more particularly mentioned ;)—-or9 by promifing
to any particular body of troops^ *^ 1 have allotted you one fourt]^ qf
** the plunder, after dedu&ing the j^i&;** — ^becau(eit is-JaudaUe to
encourage and fiimulate to fighting, and making war upon the in.
fidclsy God having commanded his prophet in the KaraUf faying
** £XCiT£ THE BRLiEVBRs TO BATTLE !i— and bcftowing a gnituit/
in the manner fpecified is one way of exciting them.— (It is proper to
obferve that gratuity is fometimes held forth in the manner above
defcribedy and fometimes. in another manner, as if ti^t.Imdm were to
declare " Whoever /ifir any thing, the fame fhallbe his!'')— It is
not laudable in the Imdm to befbw the who/e of the plunder in gra*
tuity, becaufe that is deflni£tive of the right of the troops: — ^if, how*
ever, he bellow the whole, in gratuity, upon any particular partjr
ordivifion of the army,, it is lawful, becaufe the management of the
plunder
Chap. IV. I N S T I T U T E S, r8j
plunder is committed to the bidm^ and he may ibmetimes deem it
advifeable thus to make gratuity of the whole.
It is not lawful for the lm£m to beftow any gratuity after the ^J^JJp*'
plunder is (ecured within the Mujfulman territory, becaufe the right bioaght into
of others in it is then confirmed. If, however, he fee fit, he nuy beftow tcnii«7.
gratuity out of the Kbanu^ or rcftrwed Jlfth^ becaufe in that the troops
have no right.
If the Imdm IhouM not beftow in gratuity the Si'M (or perlbnal J"'^^^
property) of one who is (lain, upon the flayer, it becomes a part of >»««/pro|»erty
the general plunder^ in which the flayer and others have all an equal ^^-^"
fliare. SAafei maintains that the perfbnal effeds of the perfbn flain
belong to the flayer, provided the latter be obe of thofe who are en-
titled to fliare in the plunder, and that he killed the flain in open
fi^t, becaufe the pro^et has iaid, *' Wb^er Jlays tfn infidel is
" entitled to bis ferfinal property^
Objection^ — It b poflible that the prophet may have mentioned
this merely in zgnauitotu fcnfe, and not as the award of the law.
Reply.— *It b evident, from the fituation of the prophet, that he
fpokc this as an award of the law, fince he was fent to enforce the
awards of the law. A perfbn, moreover, who kills another prepared to
oppoie him in open, fight expofes himlelf in a fuperior degree, and
hence the perfbnal property of the flain goes to him, for the purpofe of
making a diftin£lion between him and others.
—The arguments of our doctors upon this point are twofold.— first,
the perfbnalproperty in queftionhas been taken, virtually, by the force
of the whole army *, and is therefore plunder ; and fuch being the cafe,
it is to be generally fhared, in the fame lAanner as other fpoil, in con-
formity with the words of the fiicred text :<*-secokdlt, the prophet
^ BecauCr, without being accooiganicd and fupported by the #niix, the /i^er never
could hive come at the/rijiw
i8a INSTITUTES. Book IX.
once (aid to Moorkheeb-Bin-Abec-Silma. ♦* No mare appertains to you of
*' the property of the per f on you havcjlain^ than your ImAm may think
" proper toaUow^ — With refpe^ to the faying of the prophet cited by
Shafeiy it bears the conftrudion both of the award of the law^ and alfo
o{ gratuity \ and' our doftors receive it in the latter fcnfe, becaufc of the
faying above quoted, and alfo, becaufe no regard is to be had to any fupe-
rior degree of expofure or fatigue in i^-ar, as was already demondrated
in treating of the operations of cavalry. By SUlib is unJerftood what-
ever nruy be found upon the pcrfon of the flaii , fuch as clothes^ wea^
ponu and armour; and alfo the animal upon which he rode, to-
gether with the equipage, fuch as the faJd/e and fo forth,— or what-
ever may be found upon him in his girdle or pockets, fuch as a purfe
of gold and fo forth : — ^but any thing beyond thefe is not Si/hh ; noc is
any thing ib which is carried upon another auioial by his fervant.
Craiui()r<3oes It is a rule, with rcfpeft to gratuity, that the right of others in
pmp^y uniU whatever may be fb bcftowed is terniinated : but yet it does not bc-
jt be brought ^qj^^ |||g property of the perfon to whom it is awarded until it be
into the Muf- /r
/i,/m^o terri- fecured within the Mujfulman territory, according to what has been
^^^ already advanced; and coniequently, if the Imdm> were to declare,
** JVhoever finds a fanale flave^ Jhe is his^^ and a Mujulman after-
wards fmd a female (lave, and afcertain his right in her, yet it is not
• lawful for him either to have jcarnal connexion with her, or to fell
her, in the hoftiie country « — ^This is according to the two Elders.
Mohammed aflerts that he may lawfully do either, becaufe he holds
that gratuity eftabliflics a right in a thing in the fame manner as
diftribution of plunder in a hoftile country, or purchafe from the hands
of an alien :^-and fome allege that MoAammcd 2l{o holds that fzxiC-
fadion is due from any perfon who fliould deftroy this fpecies of plim-
der^-^whercas, with the two Elders, it is not due
C«AP.
Cif AF- V, INSTITUTES. 183
CHAP. V.
Of the Conquefts of htfideli.
If mfidelsof 7icn(i^0ir tonquer infidels oiKome^^ and make captives Infidels ac
of them or fcize their property,. they are the rightful preprietors f, ?„"'Jhc*p?|. *
becaufc here is cftabliftied a fubjugation over neutral J property, ^^l^^l^
which is a.caufe of propriety, as (hall be hereafter Ihewii: and if oueft, whether
Mujultnans (hould afterwards conquer thofe infidels of "turkifian, ^^^'"/^^'^
whatever property of the infidels of Rome they may find with thcfc
infidels of J'ltrkijian is lawful to them, in the feme manner as their
other original property. In the fame manner, li infidels obtain poflef- or fromjiv-
fion, by conqueft, of the cffcdls of Muffulmam^ and fccure the fame ^ '"
(that is, carry them into their own country,) they are the rightful
proprietors thereof. Sbafet maintains that they do not become the
proprietors, bccaufe their conqqcft over the property ci'MuJfulfnans is
unlawful both in the beginning and. alio in the end ; and he holds
that what is unlawful cannot create a right of property. Our AoSioxSi
however, allege that as the conqueft of infidels over the property of
Mujfulnuzns is a conqueft over neutral property, it creates a rights in
the fame manner as the conqueft oi Mufulmam would give them a
right over the property of infidels. The ground of this opinion is
* Tbis term it ufisd hf die people ^ JJm ia a very extenfive lcflfe» comprehending
the -whole of the antient Rman empire: it here applies, in particular, to the eafiera pro-
vtnces of the Turiljb empire, which feme Ewnptan writers diftinguifh by the appellation
cf RuneKd. Turkjftan is a large region lying to the eaft and fouth-eaft of the Caffian (ea.
t Meaning that the right ofthe original proprietors is dlfTolved and rendered void.
t Arab. Mokab. The meaning of this term is explained at large elfe where.
2 that
i84 INSTITUTES. Book IX.
that the property in queftion becomes neutral upon being fccurcd
within the alien territory ; bccaufc property is originally neutral with
refped to any perfon whatever, as God has (aid ** the whole that
*' THE EARTH CONTAINS HATH BEEN CHEATED FOR YOU/* (that
is, for mankind\) every thing, therefore, upon the face of the earth,
is dcfigned alike for the ufe of all, and is not appropriated to any
perfon in particular; whoever pleafes may enjoy it: but yet, certain
of that property becomes appropriated to certain individuals by one
or other of the cavfes of right of property, foch as purcbafe^ inkeri-
tance^ and fo forth, in order that the individual may be enabled to
make ufe of it; for if property were not thus appropriated, others
would be continually interfering in the enjoyment of it : for this rea*
ion, therefore, and of neceffity, certain property is afligned to certain
mdividuals, who are refpe£tively the proprietors. Now, when the
infidels carry the property of the Muffulmans into their own territory^
the proprietor is difabled from enjoying it any longer; and fuch being
the cafe, the caufe aforefaid, which was the occafion of the property
being appropriated to the Mujfulman^ ceafes ; and the caufe ceafmg,
the property becomes neutral, in the fame manner as it was
originally neutral: it being demonftrated, therefore, that the pro-
perty, upon being carried by them into their own territory, be-
comes neutral^ it follows that the conqueft of the infidels over it is
then a conqueft made by them over neutral property, which is a
caufe of propriety ; and hence they become the proprietors. It is to
be remarked, however, that their conqueft over the property is not
eftabliftied until after its being JecureJ within their territory ; becaufe
fecuring fignifics being endowed with power over the article fecured,
(namely, the property) with regard both to clrcumjlance and to fub^
fiance ; now, fo long as the infidels do not carry the property into
their own territory, their power over it is not fubftantiatcd, fince
whilft it continues in the MuJJulman territory it is evident that the
Miiffulmant may rally and recover it out of the hands of the infidels.
With refped to what is alleged by Shafet^ that " their conqueft over
*' the property of Muffulmans is unlawful^ and a thing which is un-
*♦ lawful
Chap. V. INSTITUTES. ,85
" lawful cannot be a caufc of a riglit of property,** — wc reply, that
the conqueft is unlawful, for another reafon*; liccaufe the property
in qucftion is in its original nature neutral^ (as has been already ex-
plained,) and conqueft over neutral property is not unlawful ; the
conqueft, alio, in the prefent inftancc, is unlawful only from ^fu^er^
venient caufc, namely the proprietory of the owner: it therefore ap-
pears that it is unlawful for another rcafon\ and a thing which is un-
lawful for another reafon may yet caufe a right, as in the inftance of
fale during the time of calling to public prayers. It is to be obferved, ^^ thcii/*/
however, that if the Mujfulmans afterwards fubdue fhe infidel terri- prietors have
tory, and the original proprietors of the property in queflion find it \\xJ^^i('
before the chief has made the diftribution among the troops, fuch bJj^^JeukeT^
property is rcftored to the proprietors without any return: and if before the in-
they find it after the diftribution, they arc entitled to take it upon madetdltfri-
payment of the value; becaufe the prophet, in a fimilar cafe, faid to J"^^?^^**'
the owner of a property, ** If you find your property before the diflri^ ^^•ffiT ***•
** butim^ it is yours without any return \ and if j attek the difrihu- f^^^^
** //ot, // is your s for the value; — ^and alfo, becaufe the right of the "^^ ®^***
former owner has been deftroyed without his confent, and hence he
has a right, out of tendernefs to his fituation, to reclaim it : but if he
were allowed to take it, after diflribution, without giving an equiva-
lent, an injury would follow to the pcrfbn in whofe fhare it may
happen to be included; and hence it is faid that he is at liberty to
take it from that perfon in return for the value^ in order that tender-
nefs may be obferved cowards both. Previous to the diftribution, on the
other hand, the partnerfhip in the property is general^^'{xhzt is, it ap-
pertains equally to all the warriors,) — ^and hence if the proprietor thei;
take it, without any return, the injury to each individual is trifling,
for which reafon the owner is then allowed to take it without paying
an equivalent. — If, alfo, a merchant go into the inndel territory, -^eMdl
• Vnkuffutfcr m9therrg^fim\ that is, not uidawful m iu msmnatKre^ but rendered
fi> by Ibnie cxuaocous circumfiance.
Vol* IL B b and
i86
with rf fpf ft
to property
recovered la
the way of
tra§(.
INSTITUTES.
Book IX,
and there purchafc property which had been phindercd from the
Mujfuhnansj and bring it into the Muffulman territory, in this cafe the
former proprietor has it in his choice cither to take the property from
the merchant, paying to him the price for which he had purchafed it,
or to leave it ; but he is not at liberty to take the property from the
merchant without a return, as this would be injurious to him, (ince
he obtained pofleflion of it by paying the value. The rule here laid
down is therefore an adl of tendernefs to both. If, moreover, the mer-
chant had purchafed the property by paying other property for it, the
former proprietor is at liberty to take it upon paying the value of fuch
property : — and if the infidels have made a gift of the property to the
merchant, the former proprietor is at liberty to take it up(m faying
the value J becaufe, as the merchant had become poflcflcd of it by aa
exclufive right, fuch right cannot be dcftroycd but in retura for the
value. — What is here advanced proceeds upon a fuppofition of the pro-
perty in queftion being a thing of a nature not compenfable by its like.
\Vhere, on the other hand, it is compenfable by its like,, if it be brought
into the Mujfulnian territory as plunder^ the former proprietor is at li-
berty to reclaim it at any time before the diflribution ; but he is not at
liberty to reclaim it in return for its like after the diflribution, fmce
in taking it in return for its like there is no advantage. In the fame mair-
ner, alfo, if the infidels fhould have prefented it as zgift to the mer-
chant, the former proprietor is not at liberty to reclaim it in retura
for its like, fincc in this there is no advantage; and fb alfo,. there is
no ad\'antagc, where the merchant had purchafed it in return for its
like with refpcct to quantity ov quality. If, however, the merchant have
purchafed it for lefs than its quantity, or in return for fbmethin<r of a
different kind, or for an article of the fanu kind, but in a fhte of
decay J in either of thefe cafes the former proprietor is at liberty to re-
claim it in return for the like of whatever the merchant bad purchaled
it with.
Cafes of the
ilaves of
If the infidels fhould make captive and carry off into their own
country the (lave of a Mujfuhnan^ and an)^ pcrfon were afterwards to
J purchafc
Chap. V. INSTITUTES. ,87
purchaie and bring him back into the Mujfulman territor}-, and any "pturfd by
one were after that to put out the flave*s eyes, and this perfon exact
the fine,-^the former proprietor is at liberty to reclaim the flave in re-
turn for the price for which this perfon had purchafed him of the in-
fidels : but he muft not deduft any thing on account of the eyes^ bc-
caufe the eye-fight is a natural quafity, ovfenfe^ and thtfeufes are not
cftimable at any price; — neither is he at liberty fe take from this per-
fon the amount oft\itffu on account of the eyes, bccaufe the flavc,
at the time of putting out his eyes, was the lawful property of
the perfon in queftion, whence be took the fine, as being the pro-
prietor.
If the infidels take and carry oflT the flave of a Mujfttltmn into their
own territories, and a perfon there, purchafing him for one thoufand
Jinm^ bring him back into the Mujfulman territory, and the infidels
again take him and carry him off into the infidel territory, and another
perfon fliould then, in the fame manner, purchafe him for one thou-
fand iirms^ and bring him back into the Mujfulman territory,— in this
cafe the former proprietor cannot demand the flave of the fecond pur-
chafer; becaufe, when taken and carried offzfectmd^^jftic^ he was not
j&/r property: but \\\t frjl purchafer may demar^l the flaftr of the
^rM^ purchafer for the price at which he had bought him of the in-
fidels, bepaufe-the flave, when taken the fecond time, was bis pro-
perty; and then, if the fi)rmer proprietor chufe, he may take the
flave of the firft purchafer on paying him two thoufand dirms^ be-
caufe tke flave has fallen to the latter at that fum ; the original pro-
prieter may therefore, if hepleafe, take him for two thoufand ^r/jix*—^
It is a rule that the original proprietor is riot empowered to take the
flave of the ^tfdW purchafer, where thtfrjl liappcns to be abient, in
like manner as he \s not empowered to take jiim of the fecond pxir-
chafer where the firA purchafer \%frefent.
B b 2 Ir
iSS INSTITUTES. Book IX.
infidels do Jf the infidels attack and conquer a Mujfuhncai territor}% yet they
ture, make « do uot, by conqucft and conveyance into the infidel territory » become
tiie^#!^5 proprietors of the Modabblrs of Mujfulmans^ nor of their jlpn-IP'alids or
^r/.yw- MokStiln^ or of freemen, y;htt)xtx Mujfuhtans or Zivifnecs \ whereas
MMiihiof Mujfulnianiy on the contrary, by conqueft in the infidel territory, be-
Muffidmani\ ^^j^e proprietors o^-U thofc ; bccaufe conqueft, which is a caufc of right
of property, produces a right of property in rcfpedl to a fubjed which
is capable of it ; ;uid the fubje£t capable of it is neutral property ; now,
a free Mujjulti/Um^ and fo alfo a free Zimmee^ are not neutral property^
being in their own nature protefled and inviolable; and in the fame
manner, rhdr MoJabbirs^ Am-lValids^ znd Moidtibsy becaufe in thefc
alfo-freedom exifts in one (hape: contrary to the perfons of infidel aliens,
whether they be free^ Am-IVaUds^ Modabbirs^ or Makdtibsy becaufe
the legiflator has withdrawn proteftion from them, and has made
them neutral proper ty^ in retribution for their fin of infidelity.
fior of an «^ If the flavc of a Mujfuhnan defert into the infidel territory, and the
/i$9de^fizrc. jjjgjgig ixiake him captive, they do not become his proprietors, ac-
cording to Hanee/a.'^Thc two difciples fay that they become the
proprietors, becaufe the protection of the flavc on behalf of his pro-
prietor exifted in virtue of the proprietors feizin, or aftual poflcffioo
of him ; and in the cafe in queftion this pofleflion is deftroyed ; whence
it is that if the infidels were to take the dcferter within the MuffulmaA
territory, and carry him off to their own country, they would be-
come his proprietors. — The argument of Haneefa is that the flave,
upon going out of the Mujfuhnan territory, becomes at his own dif-
pofa), in the fame manner as a freeman ; becaufe a regard to his being;
in poflcflioii of his own perfon had ccafed only in order that the pof-
feflion of his mafter might be eftabliihed, to enable him to
giakc uic of it ; and, io the cafe in queftion, upon the poflclfion of
the mafter being deftroyed, the flavc's poflcftion of his own perfon
takes place, and he becomes in his own nature inviolable, in the fame
manner
Chap. V. INSTITUTES. 189
manner as a freeman ; wherefore he no longer remains, a fubjcft of
acquiiltion: contrary to an abfcondcd flave whilfl in the Mujfulman
territory, fince he ftill continues in the pofieflion of his mafter, in vir-
tue of the continuance of the Mujfubnan power within that territory.
So long, therefore, as the pofieflion of him by the mafter continues,
his poffeflJon of Iiis own perfon does not appear, wherefore he is not
at his own difpofal; and hence, if the infidels were to take and carry
him off to the infidel territory, they would become his proprietors.- —
It is proper to obferve in this place, that as the flave, in the prcfcni ^^'^^^j'^r^i^
inftance, is not the property of thefc infidels, the former proprietor is every ia-
cntitled to redlaim him without any return in all the cafes before Mimidby^
treated of, — that is, in cafe of the infidels having prefentcd him in gift **** P«>P"^
to any perfbn, who afterwards brings him into the Mujfulman terri-
tory,—or m cafe of any pcrton purc&a/Ifigj and {o bringing him into
the Mujfubnan territory,*— or in cafe of the Mujfulmans making him
captive in the way of plunder, and bringing him into the Mujfubnan
territory. In this laft cafe» alfb, the former proprietor is at liberty to
reclaim him without any return either bejore or ajier the diftribution o'"
the plunder; and if he fliould take him, after the diftribution, from
the perfon to whofc fliare he has fallen, that perfon mufl be reim-
burfed out of the public treafury^ a proportionable reimburfement
from each intSviJua/ being impoflible, fince the warriors are by that
time all feparated and gone different wtiys, and cannot again be brought
together.— It is alfo to be obferved, that the perfon who had obtained
the flave by gifl, purchafe, or plunder, is not entitled to take any
reward on account of the flave from the proprietor ; becaufc either
of thefe appears to have a£ted folely on his own account, and under a^
conception that the flave is thereby rendered his property*
If a camel, the property of a Mujfulman^ Aray into the country A flmy aiU-
of the infidels, and they lay hands upon it, they become the propric- Ihepro^^^Tty*
tors, in virtue of the ellablifhment of their fupcrlority over it; fincc ^^ ^^ 1"^^"^**^
a brute is incapable of being at its own difpofal, in fuch a manner that-
the
\go
INSTITUTES. Book IX.
the camel ihould become poflcflcd of his own pcrfon upon quitting the
Mufulman territory :— contrary to the cafe of a flave, according to
but may be ^yhat was before dated. — If, alfo, a nerfon were to /trrrArj/Z' the came!,
fcclainiccl by
the owner on aiid bring it back into the Mujfuhnan territory, the original proprietor
back^ ^^ * is entitled to take it upon paying that perfoa the price for which he
had purchafed it.
Cafcofaflave Jf the flave of a Mujfulman abfcond Into the infidel territory, car-
wtth'proper- ^ying witfi him a horfc, or other ef7e£ts, and thd infidels feize the
*^' whole, and a perfon afterwards purchafe the whole, and bring them
back into the Mujfulman territory, the former proprietor is at liberty
to take his flave without any return, and to take the horfe or cf7c<fls
upon paying the price for which they had been purchafed.— This is
the doAriaeof i/j;i^g/a.-~Thc two difciples aflert that the former
proprietor is at liberty to take, in return for the price, the flave, to-
gether with<he accompanying property.— This difference. of opinion
arifes from Haneefa holding that the infidels do not in this cafe become
pfOpHetors of the flave, in the fame manner as where the flave ab-
fconds alone mto the infidel territory, (that is, without carrying any
thing along with him,) in which cafe the infidels do not become his
proprietors, as has been already explained; — whereas the two dif«
ciples hold that they become proprietors in this cafe, in the fame man-
ner as where the flave abfconds into the infidel territory without car-
rying aay thing along with him ; as was before flated.
A Mnjiiimam If an infidel alien come under protcAiou into the Mujfulman ter-
chaiLa^by'an "tory, and there purchafe a flave who is a Mujfulman^ and carry him
come<'(v!e ^^^^ ^^^ infidel territory^ the flave becomes free, according to Ha*
upon enter- nccfa. — The two difciples fay that he does. not become free, bccaufe
temt«y! ^^^ ^*g^^ of the former owner has been deflroyed by l\\c /ale<^ and the
flave has become the property of the infidels, and the power of con-
troul over the flave no longer remains to the former proprietor ; the
flave, therefore, continues in bondage with the infidel.— The argu-
mcr^t
Chap. V/ INSTITUTES. 191
ment o( Haneefa is that it is incumbent to releafe a Mujfulman from
the degradation of fubjefcion to an infidel ; wherefore (eparation of
country, which is the condition of the deftru£tion of proprietorfliip, is
made the fubftitute of manumiilion, which is a caufe of the deftru^oii
of proprietorfliip, for the purpofe of releafmg a Mujfulman^ in tho
fame manner as the lapfe of three menflruations is a fubftitute for fe*
paration, in a cafe where a huiband or wife embraces the fiuth in a
foreign countrj'.
If the flave of an infidel alien htcomt z Mujfuhnan^ and tbea pafg ***< *J^««'
into }Aifi Mujfulman territory, or x\\z Mujfulmam conquer the infidd nponbe/
territory, fuch flave is free ; and in the fame manner, if the flave of fi£^f^
aiiinWcl alien embrace the faith, and defert to the Mujulman camp, '*^2?2?^
he is fhee; — becaufe of what is recorded, that certain flaves of the
people of Tayeef, having embraced the faith, came over to thf^
prophet, and he announced their freedom, faying •• thofe are the
•* freedinen of God T* — and alfo, becaufe the flave in queftion, where
he takes refuge within the Mujfulman territory, has placed hb pcrfoq
in protedlion, in virtue of his coming there againft his owner!s will ;^i.
or, where the Mujfulmans conquer the infidel territory, has placed
his perfon in protection, by joining the Afuffulmans; iince his poflei^
(ion of his own perfon is to be regarded preferably to the ppfieflioa
obtained over him by the Mujfulmans^ as the former took place previ«
ous to tlie latter, he being at his own dilpofal; and he has no occafior
to take formal, poflcflion of his own perfon,— nay, he requires no
more than that his pofleflion over his own perfoxl fliould be more fuDy
confirmed,, iince that pofTcflion.is unconfirmed| on accoum of the
appearance of the mafler^s , right : contrary tn others, as they are
defirous of eftablifliing a poflcffion over him ab Jnitso; — his poflfcflioa
of his own perfon, therefore, is to be regarded in preference*-
CHAP.
roi INSTITUTES. Book IX.
CHAP. VI.
Of the Laws concerniDg Moojlamins *.
A MyfilmMH If a Mujfulman go as a merchant into a hoftilc country f, it is not
if? a pfo«c. ^^wf"l ^^^ ^^^ ^^ molcft the inhaVitants cither in pcrfon or property,
tion in a becaufc he, in his acceptance of a protcftion, has undertaken to ob-
trx muft DOC fcrve this forbearance towards them ; any moleftation of them after-
SSiiMtt!*'*' wards would therefore be a breach of agreement; and a breach of
agreement is prohibited. — It is therefore unlawful for him to moleft
them in perfon or property, unlefs where the fovereign of the coun-
try breaks the engagement with rcfpeft to him, by feizing his pro-
perty, or throwing him into prifon,— or where others do fo with the
fovercign*s knowledge, he not preventing them, — in which cafe it is
lawful for the merchant to moleft them in peribn and property, as here
the breach of contraA is on tBcir part. It is othcrwi(e in the cafe of a
captive 9 to whom it is lawful to moleft them in- perfon and property,
although they fliould releafe him of their own accord, becaufe a cap^
five is not under protection.— -It is proper, however, to obferve that
if the merchant break his agreement with the people of the country,
and feize any of their property, and bring the fame into the Mujfulman
territory, he becomes the proprietor^ becaufe hi$ acquifttion of power
over neutral property is eftablifhed ;— 'but yet in his pofleflion of it
there is an abomination, becaufe the property has been obtained by a
breach of treaty, and this is the occafion of abomination with refpe£t
* Pcrfons reriding in a foreign jcountry, under a proteAtoa procured from the flats of
fovereign of that counU'y.
t Arib. Dar-al-birt: meaning, anf/jr/i/ii country uodcr the goveromeat of fM/Ed!r&»
The tranflator general!/ renders 'itfiroiH ctuntry.
to
Chap. VI. INSTITUTES.
to that property; and hence the merchant muft be dircfted to bcftow
it in alms.
^93
If a Mujfuhnan^ having procured a protection, go into a foreign No decree
country, and there purchafc goods of an alien upon credit, or difpofe inajw^A
of his goods to the alien upon credit, or ufurp the property of an alien, S^f^"" ""
or an alien ufurp his property, and he afterwards return into the Muf- »f*«raaioni
fulnuui territory under a protection, in none of thefe cafes is the KAzce Mujkimam
to pafs any decree againft one of thofc in favour of the other: — not in (Srbciww
xhtfrfi inftancc, becaufe the validity of a decree of the Kazee refts *«j?«>««w)
upon his authority, and here the Knzee was pbffcflcd of no authority country,
whatever at the time of the debt being contracted, with reipeA either
to the debtor or the creditor, on account of feparation of country; —
neither is he poflcflcd of any authority with rcfpcfl; to the protefted
alien at the time of the decree, as the alien has not undertaken to fub-
mit to the Mujfulman laws with regard to afts done in time paft, he
undertaking only for the /uturef- that is, from the period of his being'
admitted to protection : — nor in the fecmd inftance, becaufe the pro-
perty ufurped has become the property of the ufurper, as the ufurper*s
acquifition of power over what he has ufurped is an acquifition of
power over neutral property, according to what has been before
ilated.-^If, moreover, both of thoie perfons were aliens, and one of
them aCt by the other as above defcribed, and they both afterwards
come, under a protection, into the Muffiilman territory, the rule is
the fame, for the reafons here mentioned: — ^but if both becon^ Muf-^
fulmans^ and th^n come into the Mujuiman territory, in this cafe the
K&^ice may pafs^a decree with refped to the debi^ becaufe the debt of
the one to the other is a Uwful debt, as having been voluntarily en-
gaged in ; and the authority of the K6zce exifts witli refpeCt to both,
at the time of the decree, as they have then both fubmitted to the laws of
IJldm^ by embracing the faith.— If, however, one of them (hould have
ufurped ^TO^ny belonging to the other, in this cafe the Kdzce cannot
Vol. II. C c pafs
194
INSTITUTES.
Book IX.
pafs any decree whatever, according to what was before ohferved,
that ** the ufurper becomes proprietor of what he has ufurped/'
Cafe of a
Mwffulmmm
ttfurpinf the
ptopeityof
an mien who
afierwtnl
hccone^a
If a Mujfulman^ having procured a prote£lion, go into a foreign
country, and there ufurp the property of an aUen, and the Mujjulman
and the alien (having become n Mujfulman) come into the Mujfulman
territory, a notice is to be iflued to the Mujfulman ufurper, in the man--
tier of a decree, directing him to reftore the ufurpcd property to the
converted alien; but the Kdzee muft not ifluc any pofitive decree upon
the lubjc^fl, for the rca(bn before mentioned, that the ufurper becomes
proprietor of what hc^ has ufurped. — The notice in the manner of a
decree is becaufc the article ufurped has become the property of the
ufurper by aii invalid appropriation, on account of the breach, of com.-
^ pa&y which is unlawful.
foreign
try.
Cafe of one jp two Mujfulmans go under protection into a foreign country, and
ilaying an- onc of them kill the other, either wilfulfy or accidentally^ no retalia-
^"in'a^ ' *^^" *5 incurred; but the fine of blood is due from the flayer's pro-
perty,— and an expiation is alfo incumbent upon him, where the aft
was accidental. — ^The reafoa why expiation is incurred is that the text
of the Koran^ upon which the obligation of it is founded, is general,
and is not reflrifted to the Mujfuhnan territory. — ^The reafon why
the fine of blood is due, is that the protcdion of the perfbn, eftablifti-
ed by refidencc within the Mujfulvian tcrritor}s is not annulled by
the fupervenicnt circumftance, namely, the going under protection
into a foreign country : — and the reafon why retaliations not incurred
is that the infliction of retaliation is impradticable without the power*,
and no power exids in the foreign country in the prefent inftance, as
power cannot be cftablifhed but through thc/Mf/n, and the coUedlive
body oi Mujulmatts. — ^The reafon why the fine of blood is due from
* Meaning the txautlvi pewtr^ aAing under the regular bwful authority.
the
Chap. VI. INSTITUTES. 195
the properly of the flayer, in the calc of ijuitfid homicide, and not from
hi^ tribe ^ is that the fine for wilful murder is in no cafe due from the
tribe\ — and the reafon why it is not due from the tribe^ in thc-cafc of
accidental homicide, is that, in the cafe in qucflion, the tribe of the
flayer hare it not in their power to prevent the flayer from committing
the homicide, or to guard againfl it ; as they are in the Mujfulman
territory, and the flayer in a foreign country; and the fine for
homicide falls upon the tribe of the flayer, only on account of
their neglefling to guanl againft it, which is not the cafe in this
inftance.
If of two Mujftilmam^ who are captives in a foreign fiate, one kill Ctfc of one
the other, — or, if a Mtijfuhian rcfiding as a merchant in a foreign ^^l!^^\.
country kill another who is a captive there, — in either cafe nothing is ing*no«^»*
due from the flayer, except expiation where the aft was occiietitaL —
This is according to Haneefa. — ^The two difciples maintain that, in
the former cafe, the line of blood is due, whether one of the captives
liave flain the other wilfully or accidentally ; becaufe the proteftion of
their perlbns is not annulled by the fupervenient circumdance^
(namely captivity ^^ in the (ame manner as the proteftion of a Muf-
fulman\ pcrfon is not annulled by the fupervenient circumftance of
iiis obtaining protection and going into a foreign country under its in-
fluence,—as was before demonftrated : — but retaliation is not incurred,
becaufe power does not exifl in a foreign country, and the exaftion of
retaliation depends upon the exiflence of power, as has been already
ftated. — The fine of blood is alfo due from the property of the flayer,
and not from his tribe ^ as before mentioned. — The argument of i&-
neefa is that a Mujfulman^ by becoming a captive to the infidels, is a
dependant on them, as he is fubjectcd to them, and in their power;
(whence it is that he is ftationary from their being fiationary^ and a
traveller from their travellings) and fuch being the cafe, the protec-
tion of his perfon is abrogated; he is therefore in the fame predica-
ment v/ilh a Mujfulman who has never yet retired out of the infidel
C c 2 territory;
196
INSTITUTES.
Book IX.
territory*. — The reafon for rcfti idling the neceflicy of expiation, ia
all thefc cafes, to accidental homicide, is that (according to our doc*
tors) there is no expiation in a cafe of wilful homicide.
SECTION.
An alien re.
iidinf; in the
MmJiilMjm
territory
above zjeur
it fubjcS to
capintion-
ux.
If ^ui alien come, under a proteftion, into a Mujfulman territory,
the Im&m muft not fufFer him freely to refide there for the complete
termof a^r^ir, but muft give him notice that " if he (hould remain
" the full year he will impofc yt^yat [capitation-tax] upon him." —
The reafon of this is that an alien is not to be allowed to continue in
the Mujfulman territory for any confiderable fpace of time, except in
flavery, or in confideration of pay ing the capitation- tax ; becaufe, if
an alien were to continue for a confiderable term in the Mujfuhnan
territory ill any other than one of thofe two ftates, he might become
^fpy ^^ behalf of the alien infidels, to the detriment of the Mujfulmam.
He may be allowed, however, freely to remain for ^Jhort time, for if
zjbort refidence were prohibited, all intercourfe would be prevented,
and the door oicomnerce would of courfe be clofod. — ^Our do£lors have
fixed the definition of a long fpace of time to the term of one year ^ [or
upwards,] becaufe a year is the term in which capitation-tax-jbecomes
due. — If, therefore, the protected aEen return to his own country
before the completion of the year, after the Imdm (hall have given him
notice, as above, he is not to be molefted, itor can the fmdm demand
any capitation-tax from him : — but if he continue in the Mujfulman
territory for a whole year, he becomes a Zimmee^ or fubje£l ;. becaufe,
when he remains a year in the Mujfuhnan territory after the Im6ns
^ Meaning an aUtn converted to the MuJJkUnan (aidu
notice
Chaf. VI. INSTITUTES. 197
notice to him, it is known that he undertakes to pay capita-
tion-tax ; and he becomes a fubjcft of courfe. — It is lawful for tlic
Imdm^ however, to refh-id the free continuance of an alien in the
Mujfuhtan territory to any term Jhort of a year, (fuch as one or two
months^ for inftance,) by giving him notice, that ** if he fhould re-
^^ main beyond luch a time, he will impofe a capitation-tax upon
" him;'* after which, if he continue beyond the time prefcribed, he
becomes ^Zlmmee: — and after becoming a Zimtnee^ if he be defirous
of returning into his own country, he may be prevented ; becaufc a
contraft of fealty cannot be diflbl ved, fince by the diflblution of it a
ilop is put to the receipt of capitation-tax ; and another coniequence
aUb is induced, that fuch children as are born to him after the diffolu-
tion of the contraft are aliens, and of courfe encnnes to the Mujfuhiansy
which would be injurious to the latter.
If an alien come, under a protc£Hon, into the Mujfulman territory. An alien be-
and there make a purchafe of tribute-land, and the tribute thereof be mu upoa '"*
impofed upon him, he becomes zZhmnee^ or fubjcA; tecaufe tribute ^.^^y^^^.
upon land is the fubftitute of a tax upon the perfon, (i\zmt\y^capita- <he impo^on
iioH'tax'O and hence, when he undertakes the payment of /r/^ir/r, it ''"'*"" '
is known that he has become a refident in the Muffuhnan territory. He
does not, however, become a Zitnmee immediately on the purchafe of
the land, nor until fuch time as he undertakes the payment of tribute, .
fincc an alien may purchafe land in the way odrcffic: — but upon be-- ««J « «k«
coming fubjcft to tribute^ he alfo becomes liable to capitation-tax for plstiu^uu.
the enfuing year, becaufe by fvbmitting to tribute he becomes a-Z/m-
nie€j atid hence the term of his capitation-tax is to be accounted from
the time of his fubmitting to tribute.
If an alien woman come, under a protedHon^ into the Mujfulman p^^ aliai>w>.
territory, and there marry a Zimmee or infidel fubjeft, flic becomes a "i". .^"***
Zimmeedj becaufc flic undertakes to refide in the jlftt^/uw/i ftate, as mwilngl
being a dependant of her hulband. Zmwmt.-
If
xpS INSTITUTES. Book IX-
bataaitien Ip a protcflcd alien marry a female iniidel fubjcft, yet he does not
come zZi'm- htcome ^Z/mmtff becaulc it is in his power to divorce her, and (b
jy\njs!h' return into his own country ; his marriage, therefore, docs not neccl-
?btd "^ iarily infer his dcfign of becoming a rtftdent.
Cafe of an If a protected alien return into his own cojuntry, and leave pro-
tngtohiftoirii pc^ty in depoHt with a Mujfulman or ZltmneCy or leave a debt due from
Slwngpro^ -them to him, — upon going into his own country his blood becomes
percyinthe ^ncutral *, bccaufe by that ad he annuls his protection: and with re-
temuxj!' 'fpcA to fuch of his property as remains in the Mujfulman territory,
the rule to which it is fubjedl depends upon circumftances; — for if the
alien, after returning to his own country, be made a captive, — or, if
an army of Mujfulmans conquer that country, and he be flain, the per-
(on indebted to him becomes difcharged from the debt, and bis pro*
perty left in depofit becomes public property -j-, becaufe the depolit is
ilill virtually in his hands, iince the feizin of his truftee is equivalent
to his own feizin; the property in depofit, therefore, becomes public
property in the fame manner as his perfon if he were made captive. The
xeafbn why the debt due to him is remitted is that any thing due to a
perfon is accounted to be in his pofleflion, only as he is empowered to
claim it; now, in the prefent inftance, his claim has ceafed ; and as the
debtor has poileflion of it prior to any other perfon, it becomes his ex-
clufive right; and he is confequently exonerated from the debt« — If,
however, the perfon in queflion be flain, without the Mujfulman army
fubduing the country, — or, if he happen to die, in either cafe the debt
or depofit goes to his heirs; becaufe as \i\% perfon^ in this cafe, has not
become fubje£l.tothe laws of plunder, it follows that his property is not
plunder, for this reafon, that the effedl of the .protedion dill remains
with refpe£t to his property^ which therefore goes to him, or to his
heirs after his deceafe.
* That is, he may be flatn without incurring any psnaTty.
t J^rab yr/.— Meanin; that portion or the plunder which belongs to ii\tJl$U.
It
CifAP. VI. INSTITUTES. 199
It is to be obfcrvcd that whenever property belonging to aliens is ^wy thing
feized by Muffulmans^ without vjar^ it mud be expended in defraying aitenswiihout
all charges of a public nature, in the fame manner as tribute. The jJ^'onKT
learned define this to be land^ (for inftancc,) the proprietor of which ^^
has been ejected by the Muffulmans^-'-ox cQfitation-taxi — and this pro*
perty is not fubjed to the impofition of a fifth. — Sbafei holds that a
fifth is due both front the land in queAion; and alio from capitation-
tax.— The arguments of our dodlors upon this point are twofold*-
YrRST, it is recorded of the prophet that he exacted capitatioit-tax,
and lodged it in the public treafury, without deducing the fifth :
SECONDLY, the property in queftion has been fet^cd in confequence
of fear for the Mt^ulmans operating upon the hearts of the infidel?,
without fightuig. It isothcrwifc with plunder^ as that is feized in con?
fequence of two circumfhinces ; — one^ the prowefs of the^ warriors in
fight; — the other ^ the collc£live force of the Mufulmans ; whence a fifth
is due to the ftate on \ht former fcore, and the remainder to the war-
riors on the latter I and as the former reafon does not cxift with
refpe6t to the property in que(Uon, it follows that a fifth is not due
from it..
If an alien come, under a prote£lion, into the MuJJulnum territoryi Oife of an
and his wife and children remain in the alien country, and he have fimif^J^d^
alfo property there, lying as a ^ir^/, fome with an alien, ibme with cffeasareio
a- Zimmee^ and fome with a Mujfulman^ and he become a Mufjulmattin mnt^?l>e.
the Mujulman territory, and the Mujfulmam afterwards fubduc his ^^f * .
country, m this cafe the whole of his property, together with his ^^MMffmlmM
wives and children, as aforefaid, arc public property ,^ — that b, plun^ "**'^*
ier. His wives and adult children«are public property, as being aliens^
and adults^ and therefore not dependants; and in the fame manner, .
the embryo in his wife*s womb, ^according to what has been already
ftated, in treating of the diftribution of plunder;) and fo alfb, his in-
fant children are public property, becaufe an bfant child is not held
to be a MuJJulnum^ in dependance of the Ijl&tn of his father, unlefs he
he
too INSTITUTES. Book IX-
be in the father*s hands, and fubjcA to hb authority ; and in the pre-
fent cafe the infant children of the peribn in queition are not fufcjeft
to his authority^ fmce he is in the Mujfubuan territory^ and tliey in a
foreign country. In the fame manner, alio, his property is not under
protection, in virtue of the protection of his/r/y&jtr, on account of dif-
ference of country, (for he is himfelf in the Muffultaan territory, and
his property in another country.) The whole of his wives and chil*
drcn, therefore, together with his property, 2it plunder. -^li^ however,
the alien in queilion become a Mujfuhnan in his own country, and then
come into the Mujfulman territory, and his wives and children conti-
nue in the alien country, and he have alfo property there, ibmc de-
pofited with a Zimmee^ fome with an alien, and fome with a MuffiU'^
tnan^ and the Mufulmans afterwards obtain the fuperiority in that
country, — ^in this cafe his infant children are accounted Mujfubiam^ ia
dependance of their father, becaufe here they were under his autho-
rity at the time of his embracing the faith, as he was then in his own
country along with his children. Such of his property, alfo, as is in
depofit with a Mujfulman or a Zimmee appertains to him, as being vir-
tally in his pofleiHon, fuice the feizin of his truftee amounts to the £une
as his own feizin. — Any thing beyond thefe, however, is public property:
— *his wives and. adult children, according to what was before dated,
that they arc aliens and adults ; — and fuch of his property, alio, as is in
depoiit with an alien, becaufe that is not in a fhite of protection, fince
the feizin of an alien is no proteclion : contrary to the ieizih of a Zhn-^
tnee or a Mujfulman^ as tlieir feizin i^ a protection, whence it is that
fu*ch property as he may have in their hands docs not become the pro*
perty of the public.
Cafe or Ml If an alien embrace the faith in his own country, and a Mujful-
lyteflainb/ man fl«y him, either wilfully or accidentally^ and his heirs alfo cm-
UilkMMul^* \ynLZt the faith there, nothing is due from the flayer, except expia^
teffiiory. fi^n wherc the ad was accidental. According to Shafei^ he is liable,
to the fine of blood wherc the act was accidental^ and to retaliation
where it was wilful \ becaufe he has fpillcd the blood of one whofe
8 blood
CiMP. VI. INSTITUTES.
blood was protcAedt fince yi&m is a protection, as men by Iflatii ob«
fain a claim to reverence* The reafbn of this is that the Ifnmt Mow/ma
ox Jm-<reating proteAiony (that is, the protefiion in confequence of
which the flayer of the protected is an of&nder,) is the original prin-
ciple» fince through that principle determent is obtained ; — for who-
ever is aware that the murder of the protected is a crime will refrain
from committing (uch murder; thus it is proved that thc^n-creating
protection is the orrginal protection ; and this protection is efbblUhed
with refpeCt to the Mujfulman in queAion univcrfally, fince no per-
ion prefumes to allege that the flayer of this man is not an ofFeuder.
The Jfmut-makkfhwm^ on the other hand^ or proteSiion nvbicb bears a
price^ (that is the protection in coniequence of which the fl^yep of the
proteded becomes liable to the Deyli^ or fine of blood,) is not the original
principle, but is rather the perfection oithc^n^creating protection, fince
by its means determent is more perfectly obtained, firom its inducing
both^« and lofs of property. Now fuch being the cafe, it is evident
that the upprectabk protection is one defcription of the fin-creat^
ing protection, and it follows that the appreciable protection al(b is at-
tached to IpSm in the fiime manner as the original oxftn-^reatlng pro-
tection is attached to it. Fine and expiation are therefore due for
killing an alien who has embraced the faith in a foreign country with-
out retiring into the Mujulman territory. — The argument of our
doctors is that Goo has faid in the Koran ^^ if the slain be of
'* A people at enmity with you, and be a true believer,
** it is INCtmBENT UPON HIS SLAYER TO EMANCIPATE A TRUE
^ BELIEVER ♦.'• With reipeCt to the arguments oSSbafel^ wc reply that
his aflertion, tha\ ** thcjln-creatlng protection is attached to ^4w,'* is
not admitted ; for, thejfn^&eatlng protection is attached, not to I/Idm^
but to theperfon ; becaufe man is created with an intent that he ihould
* Tkjc is, loprocure the eiiMOicipation ofa M^^pJmonpm: uA nofineihaH be pid,
beoRifein this cafe the rdadoai of the murderer,- bciiig it^b uA oHens^ have no right to
Moent after hwi*
Vol. n. D d bear
ft02 INSTITUTES. Book IX.
bear the burthens impofed by the law, which men would be unable
to do unlefs the moleftation or flaying of them were prohibited, fmce
if the flaying of a perfon were not illegal, he would be incapable of
performing the duties required of him. The ptrfon therefore is the
original ixMjt^ of protedion, ^nAfr^periy follows as the dependant
thereof, fmce property is, in its original ftate^ muiral^ and created
for the ufe of mankind, and is protected only on account of the right
of the proprietor, to the end that each may be enabled to enjoy that
which is bis own : but the appreciable prote£liou applies to pr^rty^
becaufe Its being appreciable evinces that the atonement for damage
mud be made in an article of the lame nature with tha£ which is the
fubje£k of prote£tion : and this is poflible with refped to property^
but not with refpe£t to the/^r/^;!, becaufe the condition of it is that
there be a fimilarity Ixtween the thing damaged and the thing in
which the atonement is made, and this ftmilaicity may exiil between
property and property ^ but not between property and a man's perfon^
fmce fome property refembles other property, whereas property can-
not rcfemble a man's perfon. — In appreciable protcilion, therefore,
property is the original^ and the perfon is a dependant thertof ; and
when the appreciable protection is eftabliflied in property by means
of the fecurity of country ^ (which is the protection of the fiate^ it
follows that the protection extends alfo to ^^ perfon by means of the
fecurity of country: but this docs not exift with refpeCt to an alien
who embraces the faith in a foreign country, without retiijuig into
the Muffulnuxn territory; wherefore the price of bis blood (namely,
the Deyit^ or fne of blood) is not due.
Odjectxon. — A protected alien, who embraces the fsuth and
afterwards apoflatizes, enjoys Jecurity, of country from refidcnce in*the
Mujfulman territory; wherefore it would follow that the fine of blood
would be due for flaying fuch a. one; becaufe appreciable protection
is occafioned by reddence in the Muffulman terntory, and that exifls
with refpeCt to perfons of this defcription : but wc find that the fine
of blood is not due for flaying a perfon of this defciiption *•
* Recattfe, as being an mfjteu^ he hat forfeited the procefiion of the Am.
Reply.
CiTAP. VI. INSTITUTES- zoj
Reply. — A protefled alien, in the Mujfulman territory, is vir-
tually an inhabitant of a foreign country, (ince he intends to return
thither: and folikewifean apojlaie^ becaufc he aifo is defirous of go-
ing into a foreign country, for fear of his life; fuch a perfon, there-
fore, does not tnpyfecurity cf country from rcfidcncc in the Mujfulman
territory.
If a perfon flay, inadvertently, a Mujfulman who has no relations, Ciftofaper*
or an alien who, having come under a protection into the Mujfulman $551^511?*
terricory^ has there embraced the faith, the fine of blood falls upon ^^.>^ ^
the tribe of the (layer; and the flayer owes expiation for the homicide, afoftign'pro-
becaufe, a& he has flain a perfon of protefted blood, the rule hblds the jj^i*^*
iame as with refpedl to all other protected perfons. It is alfo to be ob* ttmiory.
fcrved that the hnim takes the fine, as the perfon flain has no heirs*
If, on the other hand, a perfon wilfully flay fuch Mujfulma^i or alien,
ill this cafe it is at the option of the Imam cither to put the murderer
to death, or to exa£l the fine of blood, becaufe here the flain is of pro*
tefted blood, and the lulling i% wilful: and the relations of the mur-
dered peribn are found either ia the whole body of Mujfubnans^ or in
the Sultan, as the prophet has faid ** Tbc Sultan // ibe relation ^
*' tboji who are witboui relaiions.^^--^V/hzt is here advanced, that
** it is at tbe option of the Jmdm to exaA the fine of blood,** means
that if the Im^ choofe, he may accept of the fine in ibe manner of a
compofitioni becaufe the law, in a cdSto{ wiljul murder^ awards only
retaliation ^ thus the Imam is at liberty to accept of a fine, as thatr in the
cafe here treated of, is more advantageous than retaliation. The ImJm^*
is therefore authorifed to accept of a compofition in property: but he
is not at liberty to fiardon ; becaufe, in the cafe in qucftion, fine or re*
taliation is the right of the coUedivc body of Mujitlinansi and the
Imam^B authority is eftabliflied for the purpofe of guarding the interefts
of the public; and the remiflion of their right without fomc return is
a defertion of their intercft.
Dd 2 CHAR
204 INSTITUTES- BookIX.
CHAP. vn.
Of Tsthe and TrUate.
De&iitioA of 1 HE term jljkar [tithci] in its primitive feafe^ fignifies /m. KAtr^
%J^d [tribute] figmfies the produdk of lands, and the hire of flaves; in the
^^^^'» language of the law ic denotes any eftabliflied impoft exaded as a tax
upon land, or upon the perfbns of Zimmecs^ which laft is termed Jfs-
yat^ ox ca^tailon^iax.
J^^'JJ Thi? length of the territory of -rfrtf^iii Proper is from the banks
tkecoantriet of the rivec C/s^/^ to the firtheft part of 2>mif , which is termed ^m-
aaicritoe/ boora: and the breadth thereof from Beretn^ and Ribna^ zvA RamA^
jiJIijto the borders of Syria: and the breadth of the territory of Irik^
Arabia is from the U%tib to thq back of HUlwdn ; and die length
thereof from Loalba zadjSIcas to the extremity thereof, which is the
^rt of Koi^buck upon the Tea fide. Of this region, the lands of yira^
bia Proper are A/boaree^ or fubjeA to ///ifir ,— -and tbofe of Arabia-^
Irdi are Khirijee^ or fubjcd to tribute. The reafons for the farmer
of thefe two arrangements are twofold, first, the prophet and the
commanders of thq faithful^ did not take tribute upon the lands of
Arabia: secondly, tribute is a fubftitute for that part of the plun-
der which goes to the Aatc, and is therefore not impofcd upon the
iauds of the ^oop]c of Arabia^ in the fame manner as capitation*tax is
not impoifid upon their ferfau^ f<n dus reaibn, that one condition of
smpofing tribute vpon land ii that the people to whom the land be*
• Arab. JOmlfa^tUJKSne. Tkc irfMitf KMifis it moie ptrtiedtrly appliei to tha
prophet*! immidiat* fit€€ifiru
3 l^ngs.
CHAP-Vn, INSTITUTES. 205
longs, be eftaUiflied there as infidels^ fuch as the people of Irak (for
jii(huice) who were permitted to continue in infidelity, whereas we
are enjoined to make war upon the infidels of jirabia till they em-
brace the faith. The reafon for the y^rM^ arrangement is that Omar^
when he fubdued Irak^ impo(ed tribute upon the lands in the prcfence
of all the companions: jtmroo Ibn ^a/,. moreover, when he con-
quered Egypt, impofed tribute upon the inhabitants ; and the whole of
the companions, in the fame manner, agreed to impofe tribute upon
the people of 5)'r/tf. It is to be obferved, however, that the lands of
the territory of Irak are the property of the inhabitants, who may
lawfuUyyc/Zorothcrwifedifpofcof them; becaufe the IinAin^ when-
ever he fubdues a territory by force of arms, is entitled to re-eflablifii
the inhabitants in their pofleflions, and to impofe tribute upon their
lanJs^ and capitation-tax upon their perfons ; and fuch being the cafe,
the land continues the property of the inhabitants, as was before Aated,
in treating q( plunder.
Lands, the proprietors of which become Mujfu/mam^ or which y^^^ ^^^^
the Intdm divides among the troops, are Ajhooree^ or fubjcft to tithe \ ^%l^J^'^
becaufe there is a neceility that fomething fliouid be impofed and dc- are fabjca to
duded from the fubfiftence oi Mujfuhnansy and a tenth is the propor- '" *
tion moft fuitable to them, as that admits the conftru£lion of an
oblation and a£t of piety ; and alfo, becaufe this is the mod equitable
method, fmce in this way the amount of what is levied depends upon
the actual product of the lands.— Lands, on the other hand, which the ^^ ^^^ ^^
Im&tn fubdues by force of arms, and then reftores to the pcopli of the tiorcdto the
conquered territory, are /ri6fr4r^^, or fubjeA to /r/^ir/^; becaufe there is a r!!^cdiD^*
neceffity that fomething be impofed and deduced from the fubfiftence of ''"''
infidels ; and tribute is the moft fuitable to their (ituation, as that bears
the conilru^on oi z punljbment^ fmce it is a fort of hardship, the
tax upon tribute land being due from the proprietor although he
ihouldnot have cultivated it. It is to be remarked, however, that
Mecca is excepted from this rule^ as> the prophet conquered that
territory
206 INSTITUTES. Book IX.
territory by force bf arms, and then reflored it to the hiliabitants,
fwixin^utj^f without impofing tribute. It is written, in the JamaSagbeer that
or /r/W 311 i3,jj lubducd by force of arras, if watered by canals cut by the
upon uind* , . ^ . t •
jijimcesy is iubjcA to tribute^ whether the Imim have divided it among
the troops, or rcllored it to the original inhabitants :— sind if there be
tio canals, but the land be watered by fprings, which rife within it,
it is uljf^ooree^ or fubjec): to tltbc^ in either cafe ; becaufe iitbe is pecu*
liar to produdhe land, — that is, land capable of cultivation, and which
yields increafe; and the increafe produced from it is occafioned by
water. The (landard, therefore, by which tribute is due is the land
being watered by tribute water, namely, rivers ; — and the flandard by
which tithe is due is the land being Watered by iitbe-wzltt^ namely.
Springs.
Wa/ii Und, If a pcrfon cultivate 'Ufape lands, the impofition of tithe or tribute
coldrticd'^is upon it (according to jiboo Toofaf%) is determined by the 'neighbour-
Omc^imp^^ ing foils: in other words, if the neighbouring lands be fubjeft to
with the titbe^ a tithe is to be impofed upon it, or tribute if they be fubjcA to
grouttds.""^ tribute i becaufe the rul^ refpefting any thing is determined by what
is ncarcfl to it ; as in the cafe of a boufe^ (for indance,) the nile
with refpeifl to which extends to its court-yard *, infbmuch that the
owner of the houfc is entitled to make ufe of the court-yard, although
it be not his immediate property.
Objection. — According to the tenets of Abco Taofaf^ it would
follow that the lands of Baffra (hould be fubjeA to tribute^ whereas
they are not fb, but are fubjcA to tithe.
Reply. — ^Analogy would fuggcfl: this; but the companions im-
pofed tithe upon it; wherefore the rule is in that inftance fet afide,
becaufe of the determinatbn of the companions.
^ Arab. Finnai meaning anj open fpace immediately about and eomifuoos to the
wal!t of k c'^veUing : but to render it of /nc/W ufe, it muft be a ibiniiglffrn^ or belong to
the dwelling itfelf.
7 Mohammed
Chap. VIF. INSTITUTES. ao;
Mohammed alleges that ifa perfon cultivate wafte lands by means
of water drawn from wells dug in them, or by means of fprings
which rife in them, or with the waters of the Euphrates or the T/f /"/>,
or with the water of any large river or lake which has no exelufivc
proprietor, fuch lands are fubjccl toihhci and in the fame manner,
lands cultivated by means of raSn-waUr : — but if he cultivate thole
lands with the water of canals cut by the kings of Per/ia^ (fuch as the
Kijfree^ and the TczdejUd^ they are ful^eA to tribute \ according to
what has been already obferved, that with him the water is regarded^
as water is the ccca/ion of increafe; — ^and alio, becaufe the impoling
of tribute upon a Mujfulman without his previous conient is im-
praaicable:— in the impofition,. therefore, the water is to be regarded,
becaufe the tilling of. the land with tribute water evinces that the
proprietor fubmits to pay tribute..
Thb tribute eftabliihed and impofed by Omar upon the lands of lUut of trU
Irak was adjufted as follows. Upon every Joreeb ♦ of land through ^"^'
which water runs, (that is to fay, which is capable of cultivation)
one Sdu f and one dirm % ; and upon every Jwreeb of pa/lure^hixd^ five
dinns § ; and upon every Joreeb of gardens and orchards ten £rms (|,
provided they contain vines and date trees. (A Joreeb of land figni*
fies fixty Zirrda ♦♦, oT the Perfian Zirra^ which is fcvcn Kabxas \\^
This rule for tribute upon arable and pafture lands, gardens, and or-
chards, is taken from Qmar^ who fixed it at the rates above-
mentioned, none contradiAing him; wheiefeite it is confidered as
* (According to the Ltxum^ e% miuh land, at udU fndau ahmsp^m kmnini and
fixtj^iighp§indt tuaiht •ffm: its extent is afterwards panicularijr deferibcdi from which
ic would a^ear that this calcuhtion muft be erroneous,
f About twaot]r.oiie pounds fterltng; lUb a weight of about leiren pounds.
t A finail filter coin from two-pence to eight- pence fierling, but now of uncertain
iralue,
% From ten-pence to two {hillings and fixpence fterling. | Fmn one fttding and
eight-pence to five IhiUinp fterling*. •^ Afiiusft/eri/ or iMu ft Kahta\ a
>».
agreed
xo8 INSTITUTES. BooKlL
ngreed to by all the companions. Upon all land of any other defcrip-
tion, (fuch as pleafure-grounds, Jafron^ficld^f and (b forth,) is im-
pofed a tribute according to ability ; fince, although Offtar has not bid
down any particular rule with refpedt to them, yet as he has made
aii/iiy the ftandard of tribute upon aratk land, &c. fo, in the fame
manner, ability is to be regarded in lands of any oiJ!>er defcription.—
The learned in the law allege that the utmoft extent of tribute is cm
kalfeftbeaStualproduff^ nor is it allowable toexa£fc more; but the
taking of a balf\% no mor; than JlriS jufitce^ and is not tyrannical,
becaufe, as it is lawful to take the whole of the perfons and property of
infidels, and to diftribute them among the Mujfubnans^ it follows that
taking half their incomes is lawful a /oriiori.--^By the term ganfens
[Boofiafi] is here und^rftood grounds furrotmded by a Jence^ and
planted with fruit-trees, either Jate-trecs or others. The compiler
of the Hedaya remarks that in our country * tribute is levied upon all
lands in r^: but this is immaterial, becaufe the amount of the tri-
bute is due, according to ability, either in ca/h^ or in the actual pro-
duA of the land. If the land be incapable of yielding the eftablifhed
tribute,- the hUbn muft make an abatement; and it is lawful fo to do,
Trtboce majr where the produd falls (hort« According to Mohammed it is alio
aUr mkati] lawful to ezaffc heyond the eftablifhed tribute, where the product hap-
JjJJ^^'^ peiu to exceed, judging of a cafe of tncreafe from a cale of defciency :
vMdiheeaa- but, according to jiboo Toofafj it is not lawful to take more than the
tfiabtijhed tribute: and this is approved ; becaufe Omar never exacted
any thing beyond what was eftablifhed, upon being informed of any
increaie of produce: if, however, any thing be voluntarily given in
addition to what is efhtUifhed, it may be accepted.
fiSiM%9tA» If tillage be rendered impra£kicable in tribute lands, from floods
mfiAoii J or draughts,— or if, after fowing, the crop fhould fail from any other
inbmc. unavoidable caufc, fuch as locuflSf or blights^ or violent beats^ in
* Meaoii^ ibt mrtbcro Pa^.
any
Chap.VII. institutes. 209
any of fhcfe cafes tribute is not due from it ;— becaufe the landholder
is unable at all to cultivate the foil, either in a cafe of inundation^ or
of zfcarcity di water ; and in a cafe of failure of the crop from other
accidents (of locufisy blights^ and (b forth «) he is debarred from the
advantage of tillageyir a part of the year \ in both cafes, therefore,
there is no increafe (in. the degree which conAitutes ability) for the
wbokyeari and it is conditional to the exaflton of the tribute that
this ability be found (ot the whole year, in the fame manner as in-
creafe to the like dc^cc/ar the whole year is conditional to the pay-
ment o(Zak6f.
If a landholder, where no obftruAion to cultivation exids, keep Triboie {•
tribute lands untilled, and thus reap nothing from them, tribute ^\wi\lt
is neverthelefs due ujx)n them. The two f/t/^rj allege that if the ■»^«^W.
landholder, being enabled to low grain of t\\t/rji quality, fbw grain
of a^iTM^ quality, he is accountable for the highejl degree of tribute:
for inftance, if his ground be capable of producingy^^^ir, and he
ihould therein fbw lentils y in this cafe tribute as fovfaffron ground is
due from him :— decrees, however, mufl not be pafled to this effeA^,
lell tyrants might be encouraged to opprefs the landholder.
If any perfbn fubjeft to tribute become a Mujfulman^ tribute con- A tribour/
tinucs to be impofcd upon him after his converfion to the faith, in 2Sea*"
the fame manner as before; bccaufe tribute bears not only the fenfe <n^"i« ^^^
of a pemd impojl levied upon infilels^ but alfo, of a prwitionfor the ST fSuT ^
expenees of the Jlate\ and in this lenfe the continuance of it upon a
MuffubnoH is pra^icable.
It is lawful for a Muffulman to purchafc tribute-lands of a Zim* Tribntc-laod
mec\ after which tribute is to be ukaifrom him {the Mufulman^) Tmm^
as it is faid, in the NaJH^Saheeh^ that the companions purchafbd gg'^y .
biitc.
• That Is, <mpi$tfmH mud not be uTed fo cxaA the tribute at this rate.
Vol. II. E e tribute-
110 INSTITUTES. B00& IX.
tribute-Iandy and paid the tribute upon it, which demonftrates that it
is lawful for a Muffubnan fo to do^ and not any abomination.
T'^iflL^ Tithe is not due from the produd of /r/^/^*lands. Sbafn af*
hmAuA. firms that tithe and tribute are both due from it, as they are two
feparate claims, due from twodidinft fubjefts, and for two different
reaibns. TYitfubjeSs are different, as tribute \% a debt upon the pro-
prietor's perfon, zni tithe is due from the aOual produS <if the lands :
and the reafom for their being due are diflFerent,. as the reaibn for /n*
bute being due is, land being productive to. the amount of ability j aird
the reafon for tithe being due is, land being produAive in fall. In the
fame manner, the 6bge£t's of dilburfement of each are allb* different,
as tribute is expended upon the troops^ and tithe upon the fo$r.
The exaAion of the ofA^ therefore, does not forbid the exadlion of
the o/ifT.— The arguments of our dolors upon this point are three-
fold.— FIRST, the prophet has faid ** tithb and thibute are
** not to he united in the land of MuJfulmansC^ secondly, no inftance
has ever occurred of any magiftrate attemptmg to unite tithe with
tribute: — ^thirdly, tribute is due upon fuch lands as have been
conquered by force of arms, zndtithe^ upon lands^ the proprietors -of
which'bave voluntarily embraced the faith, — and thefe two defcrip-
lions cannot both apply to one foil ; but the re^i/on^foT tithe and tribute
is one^ .namely, a froduGiveJoi/ i!-^viiitnce it is that tithe and tribute
have-a refcirence to /W, and it is commonly faid, '* the tithe ^
** iand^^' and *• the tribute ofland^^ which (hews that the reafon
for both is a froduQroe ftnL, — intithe^ produce aSualfy^ and in tribute^
£ffiM«SL P^^**^^ *^ '^^ degree of ability. — A fimilar difference of opinion
irihi^ obtains concerning the\initmg of Zahdt with tithe or tribute: that
isv if a- perfon- purchafe ///&*Iand.or tributcAsnd^ in the way of mer-
chandiiCf our do£ldrs«hold that nothing but tithe or tribu/e is due,
^and. that Zaidt is not due;, yhereaif Shafe'i maintains that together
with tithe or tribute Zahdt is alfo due, on account of the tr^\—
and dtr&me ii the opinion oiMi^hammed.
If
Chap. VIII. INSTITUTES. ill
Ip tribuieAaxA ihould yield two crops m one year, from a double ^'*^'^
cultivation, yet tribute is not to be levied a ^^mi^ time on account of fecoad d^.
the lecond crop; as (hnar did not levy a y?coif^ tribute, for a ficrnid "^'nJ^'^**
crop. It isotherwiie with titbe^ as that is repeatedly levied on repeated ^'^'•
produce, in titbcAznA^ becaufe )£ tithe were not repeatedly levied on
account of a repeated crop, the coUe&ion of it would be uncertain.
CHAP. VIII.
Of Jizyat^ or Capitation-Tax,
JiZYAT, or capitation-tax^ is of two kiiids. The firft fpccies is that Capiatioii.
which is eftabUflied voluntarily, and by compoiition, — the rate of }^'^ ^J^
which is fuch as may be agreed upon by both parties, — becaufe the uty, [whkh
prophet entered into a compofition with the tribe of Binney Bijran^ by*co«5pofi^
for twelve hundred pieces of cloth, and not more, — ^and alfo, becaufe ^'^"*)
the fixing of tribute in this mode is a mutual aft of both parties, and
therefore it is not lawful to fwerve from what has been fb mutually
agreed upon* Thtfecond fpccies is that which the Imam himielf im* ^^j mv/^/«
pofes, where he conquers inficjcls, and then confirms them in their
pofleflfions, the common rate of which b fixed by his impoting upon
ever^ ayowedly rich perfbn a tax of forty-eight dirms per annuM^ or Katci of im-
four ^/r/w ^r month ;«— and upon every perfoii in nudMing circum- S!^|^*"*"
fiances, twenty-four dirms per annum^ or two dirms per month;— <uid
upon the labouring poor twelve dirms per annum^ or one dirmper mouth.
This is according to our doftors. Skafei maintains that he fhouldexaft
from each fane and adult peribn, one deenar^ or Ibmething to that
amount; — and the poor and wealthy arc on an equal footing in this
point ; becaufe the prophet faid to AfJ/is, ** TCakefrom every male and
*^ femau adult one d££NAK, or cloth to that value i^* — ^from which it
£ e 2 appears
zt2 INSTITUTES. Book IX
appears that there is no manner of diflere nee between the n'cA and the
foor^ as the prophet {poke grnfr a/// j without making any diftinAion:
moreover, capitation-tax is due only in iieti of deftrutlion ^^ (whence
it is that it is not due from perlbns the deAru^lion of whom on ac-
count of infidelity is illegal, namely wnfHtn and cbiUren^) and in
this feafe it applies equally to the rich and the poor. — The arguments
of our dodors upon this head are twofold. — first, their dodrine is
adopted from Omar^ Othman^ and Ali^ with whom all the compa-
nions agreed upon this point : sEcoWDty, capitation-tax (erves as an
aid to the troops, and therefore differs in its rate, according to the
difference of men*s circumftances, in the fame manner as tribute
upon land. The ground of this is that capitation-tax is due in lieu of
afliftance, with perfon and property-]- ; but as property isdiftcrent with
refpeft to being more or /j/i, fo in the fame manner that is different,
which is a fubAitute for it. — With refpc£t to the tradition adduccti
by Sbafeu we are only to underfland from it tliat the taking odkmarsn
and- fo forth, from the tribe to whom he alluded was in the way
of a comfofiiiOH^ m which there is no difference between the poor
and the ricbf as is further proved by the tctrnfrmaie aJuIts^ in the
faying referred to, lince capitation-tax is not incumbent upon nuomen.
It is to be obferved that in the exaction of capitation-tax from the
labouring poor, it is a condition that the perlon upon whom it is levied
be in a ibtc of health for the greater part of the year.
Itittmporcd Capitation-tax is to be impoM upon KMbces^ becauie
ttdJ&ji^/' ^^^^ ^^ mentioned in thei&m: and it is in the lame manner to be
impofed upon Majoofees^ as the prof^et impoled capitation-tax upon
Mnjoofees. — Capitation-tax is alfo to be impofed upon the idolaters of
Jfim^ [Pirfia.'] This is contrary to the opinion of Sb4^fi^ for he
* That it toby, is impored as a return from the mercy and forbearance (hewn by ihc
Muffulmam^ and as a fubftitute for that dtfiruUlm which is due upon infidels.
t Namdy, chat affiftance which every fubjeA of the Mujfmhnan goverf ment is by
Ihc law cqoioed fo afford cowards carrying on the injoiaed war with iafidtls.
j argues
Chap. VIII. INSTITUTES. aij
aqgues that dcftrudion is Iiioirrcd by all infidels ; but tlte legality of
at^iiiiig from it, in confideration of a capitation-tax, with refpedk
to Kitdbees^ is known from the word of the Koran, and with rcfped
to Majoofies^ from the traditions; any others, therefore, than thofe,
(namely, idolaters^) remain fubjeft to the original penalty, which is ^«
JlruRton. The argument of our doctors is that as it is lawful to make
flaves of the idolaters of Ajtm^Xt follows that it is alio lawful to impofe
capitation-tax upon their l becaufe, in the lame manner as, by reducing
them to flavcry, they ar^e deprived of power over their own perfons,
io alfo, thty are deprived of po^vcr over their own perfons by theim-
pofition of capitation*tax, fince they mull: in this caie work, and pay
the Mujfubnam the produce of their labour, and their fubfiftence is
funiiflied from their labour.
If a Mujiilmah army fubdiie an infidel territory before any capi- The iaiiabi.
tation*tax.bee(bhliflied, the inhabiunts, together with tlicir wives ^J^
and chiklren, are all plunder^ and the property of the ftate, as it is ?"*J2^
lawful to reduce to flavery all infidels^ whether they be Khcbets^ Ma- fd^SX^
jwife€S^ or tdotaten^
becaufetheirinfidelity is particularly atrocious, fmce the prophet was l!^ft
fent among them, and manifeiled himfelf in the midft of them, and j^'^«
tstu:
Cafitatiok-tax is not impoied upon the idolaters of- Arabia^ NocMpoC.
lion to be ac-
liom
the Koran was delivered down in their language; wherefore thdr
depravity is moft evident. In the fame mantier, capitation-tax is not ^^^f^
impofed upon apofhces, as their infidelity is alio of an atroctoas na-
ture, becauie they have apoftatifed and become infidels after having
been led into the way of the faith, and made acquainted widi its ex-
cellence. — ^From neither of thefe, therefore, is any thing to be
accepted, but they mud embrace the faith, or be put to death. Sba^
fit holds that it is lawful to make flaves of the idolaters of Arabia i —
the reply to him is contained in the arguments of our dudors as before
recited.
ai4 INSTITUTES. Book IX.
f^ "P^*^ If a Muffiihium army conquer the klohters of Arabia^ or apoftates*,
fhry brcocii« thctr wivcs and children are plunder, that is, become the property of
P^hc pie- ^1^^ ^9Xt\ becaufe Sideek made flaves of the women and-children of
the Blnnty-Wanetfa tribe, when they -apoftatifed, and divided tboie
(laves among the troops, and flew fuch of the men as did not return
to the faith, for the reafbns before alfigned.
Capiration. Capitation-tax IS not duc frOKi wwnen or ihilJrenx becaufe it
fram «»JOT«, is due either in return for a remiilion of dcflru£tion, or in lieu of
€hU^nm. afliftance in the wars of the faith, and women and children are not
liable to be flain)-— nor do they engage in war, ai they are incapable
thereof. In the fame manner, capitation-tax is not due from the
maimed^ the i/inJ^ the paralytic^ or the ageJ^ becaufe theic are inca*
pable of engaging in war. It is recorded from Aico I'oofqf that
capitation-tax is impoied upon the ageJ^ where they are poflefled of
property, becauie an aged perfbn, of Ibund underftanding, is liable to
be flain.
cif^tf^si Capita TroK-TAX is not due from fuch poor as do no workf .-—
Sbqfe'i maintains that capitation-tax is due from them, becaufe of the
tradition of MaS%^ (before recited) which is generally exprefled.
The arguments of our do£lors are twofold. — ^first, OibmoH refrained
from, impofing capitation-tax upon the poor of this defcription, — and
this, in the prcfencc of other companions: — secondly, as tribute
on land is not impofed upon ground incapable of bearing it, to in like
manner capitation-tax is not impofed upon ope who is unable to pay
it: and with rcfpeCt to the tradition of Aftfoss, although it h^ generally
expreflcd, yet it rehtes to the labouring poor only.
^ Tne tcTfn af$fiMi applies not only to tnJividtigh^ but llfo to tobtltirihet^yAk^ after
cmlMneing the Ciith, renounced it, and returned to their former waj of wreiihip.
t Niuodf, F^lan^ or others vho ftibfift hj ku'V^
Capitatwn-
Chap. VIIL INSTITUTES. 215
Capitation-tax is not impofcd upon Jlaoes^ Moidiils^ Mo- ^^^^ " »^-
dabbirs^ ox Am^Wallds^ hcczvift capitatiofi-tax is a fubftitutC'for dc- ^4^/ of any
ftruiHon, with rcfpcft to t6em, and; with rcfpcft to us, it is a fubfti- ^^«"P"«»-
tutc for aiJ [in the wars of the faith;] now in conformity with the
Jlrfi of thcfe, it would follow that capitation-tax is due from them,
and, in conformity with the Jecon J, that ic is not due; a doubt there-
fore arifes with refpeft to its being due; and as this is the cafe, it is
determined not to be incumbent upon them : neither is it incumbent
upon their owner tq pay capitation-tax for them, becaufe he himfelf
by their means pays -an increafed capitation-tax, as he through them
becomes ric&, or obtains a mediocrhy of circumftances ; and in either
cafe he pays capitation-tax m a degree fuperior to the labouring poor.
Capitation-tax is not impofed upon RdAibs, (that is» Chriflbin nor upon
or Pzffin monis and hermits^ who do not mix with the reft of man- ^/^^'
kind:)— :thc fame is mentioned by Kadoorte: Mobanmedj m the
Jama-Sagbeer, rt^xtsitom Haneefu that capitation-tax may be im-
pofed upon -thofe, where they are capable of labour, (and fuch is the
opinion d[ Aboo Too/of \) becaufe where, being capable of labour, they
refrain from it, they wafte their ability^ capitation-tax, therefore, is
due from them, in theTame manner ^s^ tribute from the landholder,
where he (being able) fuffers his land to remain untitled^— The rea-
ibn for what is related by Kadooree is that a- monk is not to be de-
ftroyed where he does not toix with mankind ; and capitation-tax,
with refpeft to them,, would be for the purpofe of warding oflF. de-
ftruAion;
If a per&n b^ome a Mujfulman, who is indebted for any arrear Amar ofca-
of capitation-tax, fuch arrear is remitted: and in the fame manner, ll^^lSht^.
the arrear of capitation-tax due from a Zimmee is remitted upon his JS?^*^*
dying in a ftate of infidelity. Sbafei holds that the tax is not remitted ir Jnverfio^'
in either cafe; becaufe it was due either in return for protcflion to *****«^»«^-
the perfbn, or in return for permiflion to rcfidc in the Mujfulman -
territory,
ai6 INSTITUTES. Book DC
territory ; and the Zhnmee or convert has continued under protedion,
andrefided in the Mujfulnum territory: the return from him, theie*
fore, is not to be remitted in confequehce of the liipervenient circum- •
ilance of death, or converlion to the faith; in the fame manner, ai
in a caie oi hire^ or of compofition for blood;— in other words, if ca*
pitation tax be a return for reJiJtnce^ it comes under the confiru£lion
hire^ and is not remitted in confequence of ieatb^ or converfion to the
faith, in the fame manner as if zZimmec were to hire a houie and refide
therein for the period agreed upon, and then die, or embrace th&
faith, in wkch cafe the rent of the houfe does not ceale; and fb like-
wife with refpe<9: to capitation-tiix :— or, if capitatipn«tax be a return
for prote&ion tc the per/on^ it cotnes under the conftf u&ion of a com-
pofition for blooQ, and is not remitted in coniequence of death or con-
verfion to the faitli, in the fame manner as if zZimmee were wilfully
to kill a perfon, and afterwards enter into a compofition for the mur*
der with the friends cf the deceafed, for a certain confideration, and
then become a Msiffulman^ or die, in which cafe the confideration is
not remitted from him; — and fo likewife capitation-tax, (which is
the confideration for protection to his perfon,) is not remitted* The
arguments of our dolors upon this point are threefold.— first, the
prophet has declared that ^^ capitatm-tax is not incum&ent upon Muf-
"^//M»x:*''-SECONDi.Y, capitation-taj[ is a fpecies of punijbmeut^
infilled . upon infidels on account of their infidelity, whence it is
termed Jizyat^ which is derived from Jizya^ meaning retrsAution;
now the temporal punifhment of infidelity is remitted in confequence
of converlion to the faith ; and after death it cannot be inflided, be-
caufe temporal punifhmeuts arc inflitutcd folely for the purpofe of
removing evil, which is removed by either death or ^^//i;— thirdly,
capitation-tax is a fubftitute for aid to the Muffulmans^ and as the
infidel in queflion, upon embracing the faith, becomes enabled to aid
them in his own perfon « capitation- tax confcquently drops upon his
j^tf/».— With rcfpeft to the argument adduced by Sbtfei^ we reply
that capitation-tax is neither a confideration for proicSion to the perfon^
nor
Chaf. VIII. INSTITUTES. 217
nor for refiJknce^ becaufe protedion to the perlbn is eftabliflicd in
virtue of humanity, and a Ztname refides, in the Mujjfulman territory,
within his own dwelling; wherefore the cafe does not admit that a
confidention, for protection to his perfon, or for relidencc, fhould be
cxaded from him.
If a Zinonet owe capitation-tax for two years, it is compoundedv— in t cafe of
that is, the tax for mi year only is exafted of him: — and it is re- yean, 9m
corded, in l\it Jama-Sagbeer^ that if capitation-tax be not exafted of a f,^^^'
Zhnmee until fuch time as the year has elapfed, and another year
arrived, the tax for the paft year cannot be levied. This is the doc-
trine oiHaneefa. The two difciples maintain that the tax for the
paft year may be levied. If, however, a Zhnmte were to die near
the clofe of the year, in this cafe the tax for that year cannot be
exafted, according to all our doAors : and fb likewife, if he die in the
middle of the year, (which inftance has been already treated of.)
Some aflcrt that the above difference of opinion obtains alfo with rc-
fpe6l to tribute upon land : whilft others maintain that there is no
difference of opinion whate\'er refpcfting it, but that it is not com-
pounded, accord'ing to all our dossiers. — ^The argument of the two
difeiples (where they diflent) is tliat capitation -tax is a confideration^
(as was before (aid,) and if the coniiderations be numerous, and the
exaction practicable, they are all to be exafted ; and in the ca(c in
queftion the exadion of capitation-tax for the two years is pradicable:
contrary to where the Zimmce becomes a Mujfubnan^ for in this cafe
the exa£lion is impracticable.*— The arguments of Haneefa upon this
point are twofold, first, capitation-tax is a fort oi puntjhment in-
flided upon infidels for 'their obftinacy in infidelity, (as was before
ftated;) whence it is that it cannot be accepted of the infidel if he
fend it by the hands of a meifenger, but muft be exacted in a morti-
fying and humiliating manner, by the coUeAor fitting and recdving
it from him in a^dif^irjpofture: (according to one tradition, the
collector is to feize him by the throat, and ihake him, laying.
Vol. ir. F f " Pay
2xS INSTITUTES. Book DC.
** Pay your tax, Z//wi^r/)''— it is therefore evident that capitation*
tax is zfuni/bment; and where two puniihments come together, they
are compounded, in the fame manner as in HiiU^ xx fiaUd pumjhnient.
Secondly, capitation-tax is a fubftitute for deftrtiftion in refpe£t to-
the infidels^ and a fubftitute for perfbnal aid in refped to the Muffiil^
tnofiSf (as was before obferved;) — but it is a fubftitute for deftruOion
with regard to ihz future^ not with regard to iht pafit becau& infidels
are liable to be put to death only m future^ in.confequence of future
war, and not in the pajl. In the fame manner, it is alio a fubftitute
for aid with regard to the future^ becaufe there is no neceffity for
aid in the fafi. With refpeft to what is quoted from the Jama Sag^
beer — ^^ and another year arriYe,"* fbme ailert that the paflage is to
be taken in its moft extenfive fenfe, that is to fay, that it means-—
** and another year alfopafsC^ fo as to make /wa years,— for it is there
mentioned that capitation-tax is due at the endoixht year, wherefore
it is requifite that another year be elapfed, fo as to admit of an accu*
mulation of two year's tax, after which the two years* taxes are
compounded: — Others, again, allege that the paftage is to be taken ia
its literal fenfe ; and as eapitation-tax is held hyHaneefa to be due upon
the commencement of the year, it follows that by one year pafling, and
another arriving, an accumulation' of the tax for /u;o years takes place.
Tlie tax for It is certain that, with our doctors, capitation*tax is due on the ctm^
ywitdue mencement of the year, — and with Sbafei^ at the end o£ it, in the
^^«7^ manner of Zakdt. The argument of our dodors is that the thing for
the year. which the tax is a fubftitute has regard folely to the future^ (as was
before explained,) wherefore, it cannot be due after the year haa
elapfed; whence it is that, with our do£kors, capitatioa-tax is due
on the ccmtttcncement of the year»
SECTION.
CflAF. VIIL I N S T I T ty T E S, «i9
SECTION.
The conftru&ioa of cburebes ox Jynag^ues in the Mujfulman Thecoaftntc-
tctritoiy is unliwfuli this being forbidden in the traditions:— but if JSe^lrfwS
places of worfhip originally belonging to Jews or Cbrijlians be de- ^JP«*^V^
ftroyed, qrfiUl to decay*, they are at liberty to repair them, — be* toryisuiiUw.
cauie buildings cannot endure for ever, and as the Imam has left thefe air^yfomd-
people to theezercife of their own religion, it is a neccflary inference . jJ^JS^^
that he has engaged not to prevent them from rebuilding or repairing
their cHurches and fynagogues. If, however, they attempt to re«
move thefe,. and to build them in a pbcc different from their former
iituation, the LtiSm muft prevent them, fmce this is an aftualroir-
^ruRitm: and the places which they ufe as bermiiages are held in the
fame light as their churches, wherefore the conftruAion of thofe alio
is unlawful It is otherwife with refpeft to fuch places of prayer as arc
within their dwellings, which they are not prohibited from con(bii£t*
ing, becaufethefeare an appurtenancetothe habitation. What ishereiaid
is the nile with refpe£t to ciiies ; but not with refpeft to villages or bam^
letsi becauie as the tokens oiljlam (fuch ns public prayer, feilivals, and
fb forth) appear in cities, Zhnmees (hould not be permitted to cele-
brate the tokens of infidelity tl)g;c, in the face of them; but as the
tokens odJUm^o not appf-^*- in vi/f^es or bamlets^ there is no occa(ion
to prevent the conftruQion of (ynagogues or churches there. Some
alkge that in our country*]- Zimmees are to be prohibited from con«
ftruffing churches or iynagogucs, not only in cities^ but alio in v/A
l^es and banUets ; becaufe in the villages of our countiy various tokens
of J/Um appear ; and what is recorded from Haneefa^ (that the prohi«
• Tbectfeittppoleticicf orcouDCryconqucrdby tht JUj^Ubsw, a!id the inhabt-
ttotifepcflafaliflied ia 1
t CJfSfir A^ the coonliy «rthe aothor.
F f 2 bition
aao INSTITUTES. Boot IX.
bition againft building churches and fynagogues is confined to chieSf
and does not extend to villages and bandeti) relates folely to the vil-
lages oi Kwfa\ becaufe the greater part of the inhabitants of thefe
villages arc Zlntmees^ there being few Mujfulmans among thern^
wherefore the tokens diljldm do not there appear: moreover, in the
territoiy of Arabia^ Zimmees are prohibited from conftru£ling churches
or fynagogues either in cities or villages^ becaufe the prophet has faid
* * Two religions cannot he frofejfed together in the feninfula ofArabia^^
Rdbiaioift It behoves the Imim to make a diftinftion between MuJTulmans
ia Mint of and Zimnues m point both of drefs and of equipage. It is therefore not
tm^T^' allowable for Zimmees to ride upon borfes^ or to ufc armour, or to ufc
the fame faddles and wear the fame garments or head-dreiles as MuJfuU
tnans; and it is written, in the JamaSi^Aeer^ that Zitnmees mud be
direSed to wear the Kifieef openly ^ on the putfide of their clothes;,
(the Kjfieefis a woollen cord or belt whfch Zimmees wear round thar
waiils on the outfide of their garments;)— ^and alfo, that they muft
be direfted, if they ride upon any animal, to provide themfelves a
faddle like the panniers of an afs. The reafon for this diftindion in
point ofdothing and fo forth, and the dire£tion to wear the KiJleeJ
openly is that Mujfulmans arc to be held in honour ; contrary to Zim^
mees^ who are not to be held in honour (whence it is that they are not
faluted/f^;) and if there were no outward figns to diftingui(h Muf-
fulmans from Zimmees^ thefe might be treated with the fame refpedt,
which is not allowed. It is to be obferved that the infignia incum-
bent upon them to wear is a woollen rope or cord tied.round the waift,
and not tjlken belt.
Their wivts It is rtquifitc that the wives o£ Zimmees be kept feparate from the
S^£i^^^' wives cfMifubmmSf both in the public roads, and alfo ia the Aatbs:
U>m!^ and it is alfo requifite that a mark be iet upon thdr dwdlings, in
order that beggars who come to thdr doors may not pray for them.
The learned havealfo remarked that it is AVthaX^immees be not per-
mitted
chaf. VIII. institutes; uh
mitted to ride at all, except in cafes of abfolute neceffity\ and if a Zim^
mee be thus, of neceflity, allowed to ride, he mud alight wherever
he fees any Mujfulmans aflemUed ; and if there be a neceflity for him
to ufea faddle, it muft be made in the manner of the panniers of an
cfs. Zimmees of the higher orders muft alfo be prohibited from wear-
ing ridi'garments.
If a Ztmmee rcf\i{t to pay capitation-tax, or murder a Muffklnum^ ^^'^S^rf
or blafpheme the prophet, or commit whoredom with a Mufflima^ yet rubjceUoii U
his contraft of fubjedion is not diflblved; becaufe the thing in virtue ^^£.
of which the deftruftion ofZinmues is fufpended is thtfuhuiiing to »ifl«»of i
capitation-tax, not the z&mz\ payment thereof; and thc/uhmj/^an to it ^'""**'
ftill continues. Siafici has faid that the contraA of fubjeOion is dif-
folved by a Zimnue\ blafpheming the prophet ; becaufe if he were a
believer,. by fuch blafphemy his faith would be broken^; and hfnce,
in the lame manner, his proteftion is thereby broken, fmce the con-
tra£k of fubjeftion is merely a fubftitute for belief. The argument of
our doflors is that the blafphemy in queftion is merely an a^a of /;j/W^-
/f/)f proceeding from an infidel ; and as his infidelity was noobdruc*
tion to the contraf^ of fubje£lioii at the time of making it, this fupcr-
venient a£k of mfidelity docs not cancel it.
A CONTRACT of fubjcftion is diflblved only by Zimmees abfcond- normikfs he
ing to the territory of the infidels, or making an attack upon the Muf |J£j? ***^*
fubnansi in either of which caies the coiitraffc ccafes to exift; becauie ucktHej/^
the advantage propofed from it is the. removal of the evils of iMr and ^ '*'*'•
blood/bedi •and this advantage ceafes to exift upon their engaging in
hoftilities.
t Tbac it, be would become a Tirtial ^Mi€^ and forfeit the procedioii and privileges
^nkSivtr. The conTequencc attending a breach of the contniA of fidjedion Is ne^^
* l»litdeliirtbecoo..
221 INSTITUTES. HocKlH
when he b«. A Zm&t£E» cpoa brcalung hU cooMnA of fubieftioa, Auda k
fomei liable ^. ,. * ,, ^ ^ i.t. •
to the fame the liusxc prcdicameat with an afqftattf'^thzt 18, he u cocxietmied to
Vn'^'^Z^^!^ cteaih upoQ abfconding to thctwitory of ifackifideU, ia the fame
manner as holds ia the rule with reipcft to apoiktes. The rule
aUb with refpofb to fuch property as he majr carty off along with him
into the (kid territory, is the fame as with reijpe£t *to the property^ cf
an apoftate; — thatis, if the Mujfu/mans afterwards conquer that terri-
tory ^ the property aforefaid is forfeited to thefbte, in .the fame manner
as the property of an apoftate : — ^but if the Zimmee be made captive^
he is zjlave: contrary to thecafft of an apoflatCi who^Jf he repent
not, is put to death.
SECTION.
ChriAians of Qf Zakdt twice asmuch is levied upon the property of ChriiHans
Iribc ffbjcA of the Binmy Togblib tribe as is levied upon the property oi Mufful-
^Aif^^^^^* ;7W»/, becaul'e Omar made peace with them upon this coiidition, and
this in the prcfcncc of the other companions, none of whom difputed
it : — and in the fame manner, twice as much is taken from the wo^
men of that tribe as from the Mujfulmans^ becaufe the above peace
edabiiflied the taking of double Zaiat^ and Zaidt is incumbent upon
women; double Zaidt^ therefore, is exaAed of the wofnen of that
tribe, — but not of the children^ becaufe ZaAdt is not incumbent upon
children. Zijer fays that the women of that tribe are alfo exempted from
-this, (and fuch is like wife the opinion of SAqfci^) becaufe 'the double
Zaidt in queftion is aftually capitation^tax^ as X)mar declared to them
** I'bh is JiZYAT, and name it wbicb ever ye pleafe^ ]izy hr^ or Za-
^^ K AT ;** (whence it is that whatever is exacted from them is expended
upon the fame objefts of expenditure as capitation* tax:)— it is therefore
evident that this is capitation^tax^ and women are not fubje£t to it.—
The
Chap- VHL INSTITUTES. 223
The argument of our doCton is that the thing in queftion has been
made obligatory by the terms of a peace, and women are capable of
being fubjeft to fuch obligations :— and with refpedt to what is urged
by Zjfermd Sbafch that *^ whatever is exaded of them is expended
** upon the fame obje£ks of expenditure as cafitatisn^tax^'^ it may be
replied that this is nol applied to the purpofes of the Mujfulmans^ as
the property which is applied to the purpofes of thd Muffulmans is the
property in the public treafury, to which the purpofes of the MuffuU
iffMj is the ob)e£t of expenditure) and this objed of expenditure is
not reftriAed to capitatiM^tax alone, (o al to afford an argument of
the thing in queftion being capitaim^iaxi^^hi ihort, the impoft in
queftion is not eapitaiiou^taXf and hence the xx>nditions ^f capitation-
tax are not regarded in theexa^on of it.
CAFitATioK-TAX is impofcdupott the fittdmcn'^ of the Binncy^ /tokofcipiw
Togblib tribe, and alfo tribute upon their lands, although capitation^ w^l^to
tax and tribute be not exa&edfrom their maAers ; in the fame mann^^r T^UtsjuA
as thefe impoft» are levied upon the frcedmen of the Korcijb tribe, ^''"^'^
although a K^mjkhe not fubjeft to them. Ziffcr (ays that there is
levied upon their property a twofold proportion of what is levied upon
the property of Muffidmans^ in the fame manner as a twofold pro-
portion is levied upon the tribe of Binney-T^ogblib ; — ^becaufe the
prophet has iaid ** nefreeJmen ffa$iy tribe are of tbat irtbe ;•* whence
it is that it is unlawful to beftow alms upon thtfreedmen of the tribe
iAHtfinm^ in the fame manner as it is unlawful to bedow it upon
the^rMMM of that tribe f. Our doftors, on the other hand, argue
that the exaAioti of a twofold proportion from the Binney-fogbKb
tribe, by the terms of a peace; is an a£t of favour with rcfpeft to them ;
becaufe that is not taken from tbem in the way that capitation-tax is
taken from Zimmeetf with humiliation and degradation ; and a freed-
man b not conne£led with his inafier in any thing which is a fiwour
* Jni. Abkkks^ mesniflg imemfeid fievtu f Vol. I. p. 58.
4
114 INSTITUTE S. Book IX.
to the imder, whence it is that capitatioii-tax is impofed upon the
freedman of a Muffulmany who is a Chriftian. — It is otherwife with
refpecl: to the prohibition of alms^ becaule prohibition is eftablilhed by
doubts whence it is that the freedman oizHa/bimee is conne£ted with
the Ha/himee^ with refpedt to the prohibition of alms.
Objection.— It would hence follow that alms are unlawful to
the freedman of a rich perfon, in the fame maimer as they are un*
lawful to the rich perfon himfelf ; whereas the ca(e is otherwife.
Reply. — Alms are not unlawful to the freedman of a rich peribh^
becaufe the rich perfon himfelf may be one to whom alms are lawful,
but prohibited by wealthy which caufeof prohibition does not-exill
With refpedl to his freedman : — a Ha/hhnee^ on the contrary, is utterly
incapable of receiving alms, as he is, by the dignity and fuperiority
of his rank, precluded from accepting of them; and hence his freed*
man is conne^ed with him as hx as refpeds the illegality of alms.
Tnbou,cipi. Tribute, and all other exa£Uons from the property of the
and public Binncy'Toghlib tribe, as well as the prefcnts fent by foreigners to (he
Xx^td^n I^^% together with capitation-tax, is expended upon the purpofes
^^y'^V*^^ of x\\t Muffubnans^ fucb as the conftrudion of fortrefles upon the
ttmiffu Mujfulman frontiers, building of bridges, and fo forth.-^Out of
thefc, alio, a fuflicient allowance is to be paid to ^t^Muffulman ma*
giflrates, public officers, and learned men.— -Subfiftence is alio paid
out of this property to the warriors, and their families; beatufe the
acquifitions in queftion are the property of the public treafury, as be«
ing obtained by the Mujfulmans without^i&/m^; and the property in
the public treafury is referved for the purpofes of the Muffubmnu and
ofthewarrbrs in their fervice;— for the maintenance of a family refb
upon the head of that family, wherefore if he do not receive what
may fuffice for their fupport, he will be under a continual neceffity of
(eekiiig a fubfiftence for them, and confequently, by a variety of en*
jg^Scmcuts, will be occafionally dtfaUed from iervice.
Chap. IX. INSTITUTES. a25
If any wairior, or other peribot die in the middle of the year, Anean of
having a fubftftence appointed to him out of the public treafury, his dpon the de*
heirs are not entitled to any of the pay fo appointed for him, bscaufe ^l^[^^
this pay is a fpecies oi gratuity^ and not a. debt^ (whence it is termed ^^^^ the/.
j1/fa^^) and therefore does not become his property until he has ob-
tained pofleflion of it| and ceafes upon his deceafe, and confequently
is not an inheritance. If, however, a perfbn die towards the ^;i^of the
year, it is laudable to give his pay to his relations. {j4ita is the ap-
pointed allowance entered in the books of the Sultan^ for foldiers, and
for the minifcers of religion, who are, in the prefent times, Kdzees^
Mooftas^ and DoSlorsf^. In the beginning of IJliin^ Jitta was ap-
pointed for any peribns of didinclion, fuch as the wives of the fiuthful,.
and the families of thofe who were perfccu ted.)
CHAP. IX,
Of the Laws concerning Apojlatis.
When a Mufu/man ^podztizts from the faith, an cxpofition thereof Atexpolitioa
is to be laid before him, in fuch a manner that if his apoftacy fhould ^<^^f><l>»<
have arifen from any religious doubts or fcruplcs, thofe may be re- fore tn tptf:
moved. The rcafon for laying an expofition of the faith before him *****
b that it is pofHble (bme doubts or errors may have arifen in his mind,
which may be removed by fuch expofition ; and as there arc only two
modes of repelling the fin of apofbicy, namely, deftruSion or IJUimi
aiid IJlim is preferable to deftruSion, the evil is rather to be removed
by means of an expofition of the fiuth ;-^but yet this cxpofition of the
♦ AnieM^ SOUNTT. t Arah. MMrit: z tide for any //^nwrfpcrfim.
Vol. IL G g faith
236 INSTITUTE S. Book IX.
fiiith is not kcumbeHt^^ (according to what the learned ha\*e reniarked
upon this head,) itnce a call to the faith has already reached the
apofbte.*
*jJ^^'^*JJ.JJ* An apoftate is to be imprifoned for three days, within which time
in tkrti A/I, if he return to the faith, it is well : but if not, he muft be flain, —
IJ^i ^ It is recorded in the Jama Sagbeer that ** ^n expofition of the faith is
** to be laid before an apoftate, and if he rcfufe the fiiith, he muft be
** flain:''-^and with relpcft to what is above ftated, that " he is to
^' be impriibned for three days,** it only implies that if he require a
delay, three days may be granted him, as fuch is the term generally
admitted and aUowed for the purpoie of confideration* It is recorded
from Haneefa and Abwi Taofqf that the granting of a delay of three
days is laudable, whether the apoftate require it or not : and it is re-
corded from Sbrfei that it is incumber on the lifiafn to deUy for three
days '«^n<l that it is not lawful for him to put the apoftate to death
before the lapfe of that time ; fince it is moft probable that a Mujful-^
man will not apoftatife but from ibme doubt or error ariling in his
mind; wherefore fome time is neceflary for confideration ; and this
is fixed at three days. The arguments of our dolors upon this point
are twofold. — first, God fays, in the Koran^ ^^ Slay the uk-
<^ BELIEVERS,*' without any referve of a delay of three days being
granted to them; and the prophet has alfo faid ** Slsy the man wbo
^* changes bis refigioh^^* without mentioning any thing concerning a
delay: secondly, an apoftate is an inf^l enemy ^ who has received a
call to the faith, wherefore he may be flain upon the inftant, with-
out any delay. An apoftate is termed on this occafion an infdel
enemy ^ becaufehe is undoubtedly*fuch ; and he is notfroieffeJf fince
he has not required z protection; neither is he a Zimmee^ becauie
capitation-tax has not been accepted from him; hence it is proved
^ That is it h lawful to kill an apoftate widiout oialuiig any attempt to iccovcr Una
Coom his apoftacy.
that
Chaf. IX. INSTITUTES. ja;
that he is an infidc/ enemy *• It is to be obferved that» in thefe niles^
there is no difference made between an apoflate who is z freeman^ and
one who is zflaw^ as the arguments upon which they arc eftaUifiied TfiS^^^tk
apply equally to boch tlefcriptions.. A^^*
Thr repentance of an apoftate b fufiiciently manifefted in his for- Hii ivpent-
mally renouncing all religions except the religion oi IJl&n^ because Jnoled^ji'
apoftatcs arc not zftR: or if he formally renounce the religion which ^^P^ ««••
he embraced upon his apoftacy, it fuffices, fmce thus the end is
obtained.
If any perfbn kill an apoflate, before an cxpofition of the faith ^^|||^ ^
Bas been laid open to him, it is abominable, (that is, it is laudable to let tKeprtmicm
him continue unmolcfted.) Nothing however, is incurred by tHe flayer ; ^^*f|J ^ •*
becaufe the infidelity of an alien renders the killing of him admiflible ;
and an exfofitim of the fidth, after a callxo the faith, is not neceflary*
If a Mujitlnum woman.become an apoftate, (he is not put to death, ^fimdf^-
but is imprifoned, until flic return to* the fiith. Sbrfe'i maintains ibocTMiu'
that flic, is to be put to death ; becaufe of the tradition before cited ; — ^ ^^ ^
and alfo, becaufe, as men are put to death for apoftacy fotdy for this
reafbn, that.it is a crime of great magnitude, and therefore requires that
its puniflunent be proportionably fevere, (namely, deaib^) (b the apof*
tacy of a woman being likewife (like that of man) a crime of great mag-
oitude, it f(^ows that her punifhment fliould be the fame as that of a man.
The arguments of our dodlors upon chis point arc twofold. — First,
the prophet has forbidden the flaying of women, without making any
diftin£tion between thofe who are afofiatts^ and thofe who are original
infidels. Secondly, the original principle in the retribxition of offences
is to delay it to a future flate, (in other words, not to infiiA punifh-
^ Arth^ Htrheii t term which the tnoflitor has genenlly rendered oliiM^ and which
applies CO aoj infidd not being a fiibjeA of the Mnjfulman giWerRinont.
Gg 2 ment.
228 INSTITUTE S, Book IX.
•meat bcre^ but to refer it to hereafter j^ fincc if retribution were
executed in this world, it would render defed^ive the ftate of trial^.
as men would avoid connmitting iin from apprehenfion of puai(h«
mentt and therefore would be in the (bte of peribns acting under
compuluon, and not oi free agents: but in the cafe of apoftacy of
men the punifhraent is not deferred to a future fhtc,^ becaufe ic is in-
difpenfably requifite to repel their prefent wickednefs, (namely,
their becoming enemies to the faith,) which wickednefs cannot be
conceived of 'u.-omen, who are, by natural weaknefs of frame, in-
capable thereof: contrary to tnen. — A female apoftate, therefore, is the
fame as an original female infidel; and as the killing of the one is for-
bidden, fo is the killing of the other alfb. She is however to be im-
prifoned, until (he return to the faith; bccauic, as (he refufes the
right of God after having acknowledged it, flie mu ft be compelled,
by means of imprifonmcnt, to render God his right, in the fame
manner as (he would be imprifoncd on account of the right of the
individual. It is written in the yama Sagheer^ — " A female apoftatc
** is to be compelled to return to the faith, whether fhe be free^ or a
•* Jlave** — ^The flave is to be compelled by her mafler :—4!tit is to be
^mpelled^ for the reafohs already recited ; and this compulfion is to be
executed by ber mafer^ becaufe in this a regard is had to the right
both of God and of the mafter. It is elf-where mentFoned that a
female apoftate muft be daily beaten with feverity until (he return to
the faith.
An tpoftate'i Ak apoftate's right over his property Is diflTolved by his apoftacy,
cisht ever hit by ay^/^^/^i/ diflTolution : if, therefore, he again become zMuJfulman
/l^iMM.ud he again becomes endowed with a right over his property, in the
wdlldlMd^ (arae manner as before. Lawyers obfcrve that this is an opinion of
ceafe. Haneefa. According to the two difciples, his right over his pro-
perty Is not diflblved, becau(e he is necc(ntous, and alfo liable to de-
* Meantn; that ffhatUn which il the chief defign of the prefent date of man.
mands;
Chap. IX. I N S T 1 T U T E S. 229
mands ; and it is requifite that fuch a pcrfon's right over his property
be not diflblved, fincc a pcrfon not pofleflfed of this right is incapable
of anfwering fuch demands as may be made upon him : his right over
his property, therefore, endures until he be put to death, in the lame
manner as that of a perlbn under a fentcnce of retaliation^ or o( la^i^
dation. The argument of Hanecfa upon this head is that an apoftate
is an infidel enemy *^ and is in our hands until he be put to death.
Now the killing of him is only lawful in confequence of his (hewing
himfelf an^umy: and this circumdance proves that his right oven
his property is dcAroyed ; but yet, as his being invited back to the
faith affords room to hope that he may again become a Muffuhnany it
is for that reafon laid that his right over his property is diffolved by a
/i{^rWc^ diilblution. If, therefore, he again become a M^Z/rm, it
is accounted the fame as if he w^rc always a Mujfulman^ and he
ftands, (with rcfpeiSt to the dijfolution of his rights) «is if he never had
apoftatifed, that is, theapoAacy which occafioned a deftrutflion of his
right is in this cafe of no effeft. If, however, he do not again be-
come a Mujfultnan^ but die or be flain in his apodacy, or abfcond to
a foreign country, and l\itKmee iflue a decree of expatriation f againd
him, his infidelity becomes then confirmed and eftabliflied, and the
caufc above-mentioned takes effeft in the deftruflion of his right, and
his right is deftroyed accordingly.
If an apoftate die or be ilain in his apodacy, his property acquired Upoa at
during his profeffion of the faith goes to his heirs who are Mujfulmans^ SfiS JL
and whatever he acquired during apoftacy is public property of the '2^*2***
community of Muffulmans^ — that is, it goes to the public treafury.— - bcMam^
This is according to Hmeefa. The two difciples allege that his i£?»^'i
t Literally, ^ iffue a decree tmauitmg bim with a b§JU/e fuarjy The term exf0*
4riatm is aibptcd by the tnnflator, as the decree in queftion docs not amount to k^tm/b^
Jtumt^ but only to a fufpenfion of tivU lift.
• 4 property
230 INSTITUTES. Book IX^
hi^fcS^* *® proj^rty of both dcfcriptions goes to his heirs who arc Mujfulmam.
Sbafei^ on the other hand, holds that they arc both public property,
becaule he died in a ftatc of inhdelity, and a MuJfuLnan cannot inherit
of an iufidel ; and as he is an infidel cneirjy^ his property is forfeited to
the fubllcj — that is, to tht Jlate. The argument of the two difciples
is that what the apoftate acquired during his profeClIon of the faith,
and alfo, what he acquired during his apoAacy, are both equally his
property until his dcceafe, for the reafon already mentioned: the
whole of his property, therefore, devolves to his heirs in confequence
of his decea/e, in virtue of their right of inheritance reding upon a
time when he was not an apoftate ; becaufe apoilacy occafions deaths
and hence it is placed in the fame Aate as if hie had acquired the whole
property during his profelHon of fhe faith ; iuid as his heirs are heirs
to that property from the period of his profefiion of the &ith, it foU
lows that a Muffiihian inherits of a. Mujfulman^ not that a Mujfulmau
inherits of an /f2/f^(r/. — The argument oiHaneefa is that the fuccefliou
to inheritance, in fuch a way that a Mujfulman inherits of z Mufr
fulnum^ is poflible with refpe£t to the property acquired, during IJldvh^
as that property exifted before apoftacy, which was a fpccies of civil
death : but this fucceflion to inheritance is not in fuch a way poffibtc,
with refpcfl t^ the property acquired during apoftacy, becaule this
property did not exii't whilfl the perfon in queflion profefled the faith;
and the cxiflencc of the property during his profeflion of the faith is
wko man a Condition of fucceflion to inheritance. — It is neceflary to obferve that
oinliM 10 ^^^ perfon can inherit of an apodate but one who was competent to
»?^«'|"* *^ inherit at the time of his apoftacy, by being thenyrr^ and a Muful^
MfoSij£f. man^ and who continued of this deicription till tlie time of the apoi-
tate*s deceafc or defertioiiinto a.foreign ftatc^ This is recorded from
Hamefa by Haofn-Bm^Zeeydd^ and proceeds upon the ground that in
inheritance regard is had to fuccejjion ; and in fucceiZion it is a condi-
tion that the fucceflbr be iirft certified, and then his (ucceflion.de-
cbred ; and it is requifitc that the qualities which entitle to inheri-
tance exift in the fucceflbr at the time of certifying his right to
fucceflioa.
Chap. IX. INSTITUTES. iji
fucccfilon, which are, hi> being a Muffulman TLXv^frec. It is alfo a re-
quifire that thel'e qualities cxifl in hini at the period of fucccfHon ;
infomuch tfiat, if any of the apoftate*s relations were to become Muf"
fulmtins iipn his apoftacy, or if a child be born to him begotten in his
apoftacy, they cannot (according to this do£lrine) inherit of hm».
There is, however, another doctrine of Haneeja recorded upon this
head, which is, that any perfon inherits of the apoftatc who wa^
entitled to inherit of him at the time of his apodacy ; and that the
continuance till the time of his deceafc of thofe qualities which entitle to
inheritance IS unneceflary ; — according to which doctrine the right of
the perfon entitled to inherit of the apoftatc at the time of his apof^
tacy is not annulled by his deceafc*, but hh heir fteps in as his fub-
ftitute, becaufc apoftacy is a fpecies of death, and hence in cftablifhing
the right to inheritance the pcrkd ofapofiacy is regarded. This is the
fubftance of what, is faid by Aboo Toofaf. — A /A/r^/doftrinc is that re-
gard is had to the exiflence of the heir at the time of the apoftatc's
death or defertion into the enemy's country; and fuch is the opinion
of Mohammed^ who has faid in the Mabfoot that this is the moft ap-
proved doftrinc, becaufc whatever occurs fojlerior to the exiftence of a
caufe, but before the cmnpkthn thereof, ftands in the fame predicament
with that which occurs /rrv/cirx to the exiftence of the caufe; — in the
fame manner as a child born of a purchafed flave previous to the feizin
of the purchafer; — that is, a child bom of a purchafed female flave
pofterior to the purchafe, but previous to the leizin of the purchafer,
is confidered as exifting at the time of the contraft of fale, fo fsir as to
be a fubje£t of the contract, and to have a part of the price fet againft
it :— contrary to where it is horn fub/ejuent to feizin. — An heir, there-
fore, difcoycTcd/ub/ejuent to the apoftacy, is in the fame predicament
with one who exifted previous to the apoftacy, and at the time of
the apoftate's profefting the faith ; and confequcntly inherits of the
apoftatc.
• That is, fuppoftng him to die in the interim between the date of the apoftacy and
th^ death of the apoftate.
The
The HiMfHh
man wife of
anapoflatein<
hcrUsofliiin.
INSTITUTES.
Book IX.
The wife of an apoftatc, being a MuJJlima^ inherits of him, where
he die or be (Iain during her edit (rovafeparaiion in confequence of his
apoAacy, bccaulc the huiband, in this cafe, becomes an evader* ^
although he be not Jick at the time of his aix)ftacv.
Tiic w^^of The property left by a female apoftatc goes to her heirs, whether
ute's pro. * it have been acquired during her profcilion of the faith^ or in her
ScrLS!*^^ apoftacy; becaufe the woman*s pcrfon is inviolable '|*; and the pro-
teftion of her blood is not dcftroycd by her apoftacy ; (whence it is
that (]ie is not put to death;) and as the protection of her blood ftill
holds good, and her perfbn continues inviolable, it follows that the
protection pf her property alio is not deftroyed, (fiticc property is a
dependant of the perlbn;) — ^and hence her property does not become
forfeited to thejlate. — It is otherwife in the cafe of a ma/e apoftate ; bc-
cauic he (according to the doctrine of Hanecfa) has made a di{lin£tion
between his property acquired during I/Iamj and his property acquired
during apojiacy^ — ^as a male a[X}(btc is liable to be put to death.
<ioes not in-
herit of his
apoftate wifc«
uiilcfs fhe
apoftacixedu*
tmgJiekMefim
The hu(band of a female apoftate (being a Mujfulman) inherits
of her, provided (he have apoftatifcd during ficknefs, with .a view to
invalidate her hu(band*s right: — but if (he have ap9(lati(ed whilft in
healthy her hu(band cannot inherit of her, becaufe a female apoflate is
not put to death for her apoflacy, and hence her hu(band's right does
not, in confequence of her stpoftacy, become connected with her
property : — contrary to the cafe of a ino/^f apoflate. ,
If an apoflate go off to a foreign country, and the magiftratc iflue
a decree uniting him to the infidels, his MoodAblrs and Am-fVedidt
Upon an
apoftace be-
iog expacri-
^thdt. ^^ ^^^ ^^^» ^"^ ^^ deferred debts become undeferred, (that is, the pay-
* For a full explanation of this term, fee Vol. I. p. 183.
t ^rah. Mapun-at^m: dut is, ^fntefled tMi meaning, not liable to be ilaiA'(oa
account of her offiacy.)
ment
Chap, IX. INSTITUTES- 23^
m^nt of them becomes immediitely due,) — ^and his property acquired «"<! ^w«^.
during his profcfllon of the feith goes to his Mufulman heirs. Sbafei JS hTi J^/
maintadns that his property continues in fufpenfc; becaufe his ex- ^^1^}^^
patriation is merely a fpecies of abfcnce^ and therefore operates in goes to hit
the fame manner as his abfencc within the Muffulman territory; hb^ebttbct"
and as in the latter cafe his property remains in fufpenfe, fo in ^^
the ^«^r cafe likewife. The argument of ourdoftors is that an ibJ«/ ^^
apoftate, by going into a foreign country^ becomes an alien ; and
as aliens are the fame as the dead with re(pe£t to the laws oliljldm^ on
account of the termination of the power of fubje€ting themfelves to
thole laws, (in the fame manner as that power ceafes with the dead^
a defertion to a foreign country amounts to icatb. His deiertiou
however to the foreign country is not confirmed but by a decree of
the magiflrate, as there is ftill a pofBbility of his returning into the
Mujfuhnan territory, and hence it is requilite that the K^e iiTue a
decree, uniting him to the foreign country, to that fuch union may
be confirmed and become cftablifhed : — and as his defertion to a fo-
reign country (lands (upon the£lzrr*s deoree) in the place of his deaths
thofe things which have a connexion with death do then become
cfbblifhed, (namely, the freedom of his Moddbbirs^ and fo forth, as
aforefaid) in the fame manner as they become efhblifhed upon his
^aual deceafe. In taking pofleflion of the inheritance, Mabammed has
regard to the heir being entitled to inherit at ibe time rf tbe af^ftatc^i
Jifertm^ becaufe it is fuch defertion which ii the occafion of the in-
heritance, no regard being had to the decree of thd Kdzee farther than
as being a confrmattM thereof, — ^in other words, by the Kdnee^s decree
all pofitlnlity of a return into the Muffkbman Xwitatf 1$ cut o|l^ and
the defertion becomes confirmed. Jb$o T§$fif^ on the other hand^
maintains that regard is had to the hdr bdng entitled to inherit «/
tbe time of the KSzee's decree^ becaufe the apofbte is accounted as dead
upon the Kizee iffuing fuch decree. The fame difference of opnion ^^/JSS^
obtams where ^ female apoflate abfconds into a foreign country. — ^SS^^^
The debts contraded by the apofbte during bis adherence to the KdeiaAe
VoL,IL Hh faith ««u«i.rf
234-
INSTITUTES. Book IX.
an apofliic'j faith arc to be dlfchargeJ out of his property acquired during the
famc^ and the debts contracted during his apoftacy are to be dif-
chargcd from his property acquired in apoftacy. The compiler of the
Heddya remarks that this js one opinion of Haneefa, — Another opinion
recorded from him is that his debts arc all to be difcharged ffom the
property acquired during his adherence to the faith; and if that be not
furticicnt, but a part of the debts ftill remain unpaid, then fuch re-
maining debt Is to be difcharged out of the property acquired during
apoftacy. — There is alfo a /A/>^ opinion recorded from him, the rcverfe
of this. — The reafon for thc/rjl of thcfe opinions is that each of thofe
two defcriptions of debt has been contrafted on a diftinft and fcparatc
account, as the debts incurred during adherence to the faith have
been contrafted in the courfc of tranJadiions undertaken for the acqui-
lition of property during adherence to the faith, fuch as purchafc^
iaie, and fb forth, — and in the fame manner, the debts incurred
during apoftacy have been contraclcd in the courfc of tranfa6lions
undertaken for the acquifition of property during apoft-acy ; and as
the cau/e of incurring each defcription of debt is different, each is re-
fpcftively to be difcharged from the property acquired by the tranl-
aclion in the courfe of which the debt was incurred : the debt, there-
fore, contrafted during adherence to the faith is difcharged out of
the property acquired during adherence to the faith ; — and the debt
contrafted during apoftacy is difcharged out of the property acquired
in apoftacy, as the caufc of the acquifition of each property, rc-
fpeaivcly, is the caufc of each defcription of debt being incurred. —
The reafon for the /ectmJ opimon is that the property acquired by the
apoftate during his adherence to the faith is 6is rights whence it is
that his heir liecomes proprietor thereof by fuccejffion : now it is a
condition of fucceflion that the property defcending be free from
incumbrance on the part of the original pofleflbr; and as his debts
are an incumbrance upon it, the payment of thofe precedes the rijjht
of the heirs: — but as the property acquired during apoftacy is not bis
right (the power of appropriation being deftroyed by apoftacy, accord-
ing
Chap. IX. INSTITUTES. 235
i»g to Hentefa^ his debts are not to be difcharged from tluit except
where they cannot be difcharged out of the other property, in which
caie what remains unpaid is to be difcharged out of this property; — -
in the fame manner as where a Zimmee dies without heirs, in which
cafe his property goes to the colleftivc body of Mufjulmans\ but yet if
any debts lie againft the Zimmee^ fuch debts are previoufly to be dif-
charged out of his efhte ; and io alfo, the property acquired by the
apoftate during apoftacy is not bis property^ but if, not withftanding, any
debts lie againil him, the difchargc of which cannot be eStded from
his other property, fuch debts are to be discharged out of the afore-
iaid property.— The reafon for the third opinion is that the property
acquired by an apoftate during his adherence to the faith is the right
of his bars ; — but the property acquired during his apofhcy is purely
bis own right, wherefore the payment of his debts is firfl: made out of
this property, except where this is impradticable, (from the property
not lufficiiig for that purpofc,) in which cafe the remainder of them is
to be difcharged out of the property acquired during adherence to the
faith, as bis right precedes the riglit of i6/j bcirs.
Objeci'ion. — It was before undertlood that the property acquired
by anapoftate duruig apoftacy is not his rigbtr, but here it is aflerted
that it is ** purely bis tnvu right ^'^ — which isa contradidion.
Reply. — ^The exprcflion that the property is ** purely bis tnvn
•** right ^^ implies only that the right of others is not conneSed with it^
in the manner that the right of another is conneded with the property
of'a dying per(bn ; nor does it hence follow that the property in quef-
tioii )% birrigbt^ (o as to occafion a contradi£tion.-»The two diictples
inaintaiu that his debts are to he difcharged out of his property cf
both defcripttons, fince both (according to tbei^ tenets) are oqaalij
bis right 9 whence it is that the right of his heirs extends to both.
All a6ts of an apoftate with refptd to his property, (fuch as pur^ Certiin aAi
thajif/a/e^ fnanumij^on^ mortgage^ and gift^) done during his apofbcy, treVafpTnded
are fufpended in their efFed. If, therefore, he become a Mujfuhnan^ iniheirdFca.
thofe ads are valid ; but if he die, or be (lain, or defert into a foreign
H h 2 country,
136 INSTITUTES. Book JX-
country, thofc afts arc null. This is the do&rint o£ Hanecfa. The
two diiciplcs fay that thofc z&s on his part arc lawful in cither cafe,
that is, whether he become a Mujfulman^ or die, or be (lain, or defert
into a foreign country. It is here proper to obfervc that the afts of
an apoilatc arc of four kinds. First, thofc which arc uiiivcrfally ad-
mitted to be of authority, fuch as claim of oftspring, and divorce, —
becauie claim of offspring does not depend upon aSunI right ofpo^
ferty^ infomuch that if a father lay claim to a child born of his ibn*s
female flave, his claim is valid, and the female (lave becomes his Am*
Walii^ although (he be not his aSual property^ but he has a dubious pro-
perty in her ; — ^and fo alfo, divorce does not depend upon a complete
power, (tnce divorce proceeding Uomz flave is lawful, although his pow^
er be defedlive.
Objection. — ^Upon the inftant of his apoftacy, feparation takes
place between the hufband and wife : how, then, can he pronounce
divorce upon her?
Reply. — This fuppofes a cafe where the hu(band and wife
apoibitifc together; as is mentioned in the Kqfce.
—•Secondly, thofc which are univerfally held tabe null, fuch as mar-
riage and facrifice,bccaufe the validity of marriage and (acri(ice depend
upon the per(bn'$ (k&,^ and an afojlatc is of w (eft.— Thirdly, tho(e
which are univer(ally held to remain fufpended in their cfkSt^
lucb as contrafts of copartner(hip, as the validity of thefe depends
upon fimilariry of religion, and there is no fimilarity between
the religion o(zMu£uIman and that of an apo/late. — ^Fourthly, tho(c
concerning the fufpen(ion of which there is a difFerence ^ong our
ddiftors, Hanetfa holding that they arc fiifpended,. and the two dif-
cipleS) that they sue not fufpended^ and thefe are the ads before-
mentioned, Toxodyf purcbafcyfale^ manumjionj fnortgage^ and ^•—
The argument of the two difciples is that the legality of thofe ads
depaids upon competency, and the validity of them upon the right of
property : now there is no doubt of competency appertaining to an
apo(bte, (ince he is fubjeft to the fame civil obligations with other
people; and in the (ame nunner (according to them) there is no
doubt concerning his power of podefltng, fmce (by their tenets) Ms
I right
Chap. IX. I N S T I T U T E S- aj;
right over property continues unafFciSlcd until his death, according to
what was before ftated, that " he is neceflitous, and alfo liable to dc-
•* mands/' (to the end;) — his right over his property, therefi)rc,
ftill endures, whence if a child be bom of his Mujfulman wife within
ftx months from the date of his apoftacy, fuch child inherits of her ;
but if his child die after his apoftacy and before his deccafe, fuch child
does not inherit of him; — ^and luch being the cafe, his afts, as aforc-
faid, arc legal and valid. According to Aboa Toofaf the a£ls of an
apoftatc in a ftate of health are lawful, becaufe it is probable that he
may again become a Muffulman^ upon perceiving his error, and confe-
quently may not fu(i^r death ; and (uch being the cafe, a maU apoftatc
is, with rcfpeft to all afts, in the fame predicament as a female.
Mohammed^ on the other hand, holds that the adls of an apoftate are
legal and valid, in the fame manner as the afts of a fick perfon, be-
caufe it is not probable that a perfon who is converted and embraces
any religious perfuafion will readily abandon it, efpecially where he
embraces it after having forfaken his former faith in which he has
been educated; it is therefore moft probable that he will fufter death
for his apoftacy : .contrary to z female apoftate, flic not being liable to
be put to death.— The argument of Haneefa is that an apoftate's right
over his property is diflblved by a fufpended diffolution, (as was be*
fore ftated,) and the diilblution or continuance of this power remain-
ing in lufpenfe, it follows that the afts in queftion alfo remain
fufpended in their cffcft, as they arc founded upon the right. An apof-
tatc, moreover, is (according to iifo>fr(/fl) in thp lame predicament with
a hoftile infidel who comes into the Mujfuhnan territory without a pro-
tection ; becaufe an apoftate is alfo a hcjlik infidel^ and is in the MufuU
maA territory without a proteAion ; and as the hoftile infidel is liable to
be impriioned and profecuted, and his a£(s remain fufpended. until it
be ieen whether be is made a flave, or flain, or rcleafed out of cour-
teiy, fo in the fame manner the afts of an apoftate remain fufpended,
until it be feen whether he become a Mujfulman^ or be flain in his
apoftacy. In reply to the arguments of the two difciples, we obfervc
that
238 INSTITUTES. Book IX,
that an apoftate is liable to be put to death in confcquencc of the abro-
gation of h\$ proteflion, in the (ame manner as a hoAile infidel, who
comes into the Mujfuhnan territory without a proteiflion, is liable to
be put to death, from being deditute oif prote^ion to his perfon; —
and the expofure to death for fuch a n^rafon occafions a doubt with
refpeft to the competency of the peribn who is liable to it. It is other-
wife in the cafe of an adulterer or a murderer^ becaufe, although thele
"be liable to death, yet their being fo is not in confequcnce oidcjiniflkn
to ibcprotcJiion of i/jcir pcrjhns^ but as a retribution for their offence;
and as this does not occafion any doubt refpefting their competency,
their acis arc all legal and valid. — It is otherwife, alfo, with refpcft to a
fcmak apoftate, l^caufe, as Ihc is not accounted an inf del enemy ^ (he is
net liable to be llain.
AnalCconaid If an apoftate, after a decree being iifued uniting him to the infi-
e^Mdn^h^ dels, become a Mujfulman^ and return into the Mujulman territory,
fAirh, an<i rt jj^ ^^^ yj^^ \^^\^ whatever of his property he finds remaining in the
theAf^^/M« hands of his heirs, becaufe the heirs have not taken the (ame, in
^t^mi^^ virtue of their right of fucceilion^ for any other rcafon than as he has
P^rtvVu re "^ further occafion for it ; but when, becombig a Mujuhum^ he rc-
.maiiiing in turns into thc MuJfulmaH ttxTiioiy ^ he has occafion for the property;
kii heirs. and as his -neceflity precedes the right of the heirs, he may refume the
property out of their hands. — It is otherwife where there is no property
remainhig in the bands of the heirs, for in this cafe he is not entitled
to feek indemnification from them^ becaufe the heir has expended the
propertVf from his own pofleffion, at a time when it was lawful for
him fo to do: neither does the above rule apply to his Am^lVallds or
Modabbin^ becaufe they are free, and the apollatc is not at liberty to
recover them, as thc decree of the Kd^ec^ awarding their freedom,
has been rendered valid by the circumilance which imparts to it that
property ^, and hence cannot be rcverfed.
^ Probabfy, meaning) hli dfertUn ($ af9fiign nuMtrj.
It
Chap. IX. INSTITUTES. 1139
If an apoftatc who had deferred into a foreign country, becoming
a Mujfulman^ come back into the Mujfulman territory, before the
Kazee (hall have ifliicJ any decree refpefting him, in this cafe it is
accounted the fame as if he had continued uniformly a MuJJufman, and
had never apoftatifed ; as was before-mentioned.
s
If an apoftate have carnal connexion with a Chriftian female ^^\ f^ * ,
cktra born of
Have, who had been in his poflbflion during his adherence to the faith, iheflivf of
and this flavc produce a child after more than fix months from the *" ^^ *'*'
date of his apoftacy, and he claim the child, in this cafe the flave
becomes his Jm-lValiJ^ and the child is his child, but yet does not
inherit of him. If, however, the female flave become a Muf-
Jlimd^ the child inherits of him, ujKjn his death, or expatriation.
His claim of offspring * is valid, for this reafbn, that the validity
of a claim of offspring does mu depend upon a^ual pojfcffion^ (as-
was before ftated :) — and the child's inheriting where the mother
is a Mujflima^ and not inheriting where fhe is a Chrijliany is becaufc
the child of an apoftatc is a dependant on ihey^z/w- where the mother
is a Cbrijlian^ (fuicc the father is more nearly related to IfUm^ as
compulfion will be ufed to make him return to the faith, and it is
probable that he may again become a Mujfulman\) and fuch being the
cafe, the child is accounted the fame as an apoftate, and an apoftatc
cannot inherit of an apoftatc ; but where the mother is a Mufflimdj
the child is a Muffulman^ as a dependant on the mother, — and a
Mujfulman may inherit of an apojlaie.
If an apoftate go ofF, with his property, into a foreign country, Theproptrty
and the Mujfulman forces afterwards obtain poflcflion of that pro- fc[,jIdV«of.
* ^ruh, IJIiilid: the term of law for a mafter laying claim to (or acknowledge
ing) a child born of -his female flave, and declaring it to be of his own begetting, which
legalifci the child to him. It it treated of at large under the head of Manumiffm •£ SUn/et.
pcrty*
240 INSTITUTES. Book IX.
uIglK b' P^^y"^^'^^ ^h»5 cafefuch property is plunder, and the right of the ftate:—
the righc of but if tlie apoftatc A/defert to the foreign country, and tAa come
the flitc. . i^i^iTf. t.i. '. ^
into the MMj/uimaH territory and take his property, and carry it off
into the foreign country, and the Mujubnan forces afterwards obtain
poflefliou of that property, and the apoftatc*s heirs difcover it before
the general diftributionf , in this cafe it muft be delivered to them;
becaufe, iu the former cafe, the property is a property in which no
inheritance had over exifted, whereas, in the Ai//^r cafe, inheritance
had exifted, (whence it became the property of the heirs upon the
Kdzees decree of outlawry) and therefore the heir is, in faft, already
the proprietor of it.
Acontnaof If an apoftate delert to a foreign country, leaving a Have iu the
ttrad into by Mujfulman territory, and the Kdue decree the (lave to belong to his
aATcondol*^ ion, and the fon conditute the flave a Mokitib^ and the apoftate
^oftite holds afterwards, becoming a Mujfulman^ return into the Muffulfuan terri-
tory, the AkidKitSbat or contract of ranibm is lawful; but the ran-
fom, as well as the ff^ii/a-nght over the Moiditi^ appertains to the
reconverted apoftate; — ^becaufe the contract of ranlbm was legal and
valid, as the fbn conftituted the flave a M^iitib after the A&r/s
decree of expatriation, and the flave then fell under the ibo's abiblute
authority, whence it is that the contract is Ugid. The ion, there*
fore, who is his father*s heir, is made to ftand as Ym agent: now the
rights of a contraA appertain to the conjiituent^ and hence the lanibm
belongs to the Either; and as the flave becomes liberated upon paying
his ranfom, the ^//a*right refts with him of courie, iince the IVsUa
of emancipation refts with the perfon from whom the flave becomes
emancipated*
• That is 10 lay, uh h in umt, in a military excurfion agaiaft the people of chat
country.
t Oftbeipoil, atiheeadof tbeexcuriioOf
Chap. IX. INSTITUTES, 241
If an apoftatc flay any pcrfon accidentally, and then dcfcrt to a |J^^^|^**J
foreign country , or be flain in his apo(hicy, the fine of blood is due anapoftateit
only from his property acquired during his adherence to the faith, J^m his^.
according to iJi/rrg/i.— The two difciples hold that it is due from his ^^1^^
property of every dcfcription, — (thit is, both from that acquired
during his adherence to the faith, and alfo, from that acquired in
apoflacy,) — bccaufe the tribe of an apoftate are not liable for the fine
of his offence, lince the tribe never pay the fine impofed upon a mur-
derer, unlefs where a connexion flill fubfifts between them ; and as no
connexion continues between the apoflate and his tribe, the fine for
the apoftate^s ofTeuce falls upon his property: — ^for the two difciples
hold that property of either deicription is bis property^ and, of courie,
that inheritance holds equally in both (as was formerly mentioned;)
whereas Haneefa^ on the contrary, maintains that nothing is his pro-
perty except what he acquired during his adherence to the faith,-—
and that, as the property acquired during his apofbcy does not belong
to him, inheritance does not hold with refpeft to it, but it is forfeited
to the flate.
If a perfpa wilfully cut off the hand of a Muffulman^ and the An U/knt
Mttjfulman afterwards apodatize, and then die in his apoftacy in conic- ftr iwofence
quence of the lofs of his handi — or go off to a foreign country, and ^SSTrt^ptr-
theJCi&^rifluc a decree of expatriation again ft him, and he afterwards j??^*^>^
become a Muffiihutn and return into the Muffulman territory, and then aTterwanls '
die in coafequeuce of the lofs of his hand, — in either cafe an balffint aS?S5S*re-
only is due from the maimer to the apoftate*s heirs: — ih the first ^^ ^ ^
iKSTANCEt becauic no regard is had to the amftquence of the aCt of ' " ^
maiming, as this confequencc followed upon an unprote^ed fubjcfi,
(namely, the ftrfm tfan efojiate^ wherefore nothing is regarded but
the original aft of maiming, which took place during the adherence
of the deceafed to the faith, at which time he was in a flate of pro-
teftion, whence zaba^fint k due:-— contrary to where a perfon cuts and nochlng
off the hand of an apoflate^ and the apoAatc afterwards becomes a *^^^**
Vol. II. V I Miifulmn^
Z42 INSTITUTES, Book IX.
mmed gpon Mujfulmati^ and then dies in confcquencc of the' lofs of his liand ; for
t^tLa^^^pif' in this cafe no fine whatever is due, bccaufc here the adt occurred
Ikmr drcum- during apoftacy, and is therefore h\d£r *, and of no account ; and a thing
iicnce; which IS hlddif cannot afterwards obtain any regard; — for as a thing
which is in itfelf worthy of regard may become biddir^ (as where the
avenger of blood difcharges the offender) fo in the (ame manner an
aft is rendered biddir by apoftacy ; — and in the second instance,
becaufe the apoftatc is in this cafe accounted as deadj and death pre-
cludes the confcqucnce; — that is, if a perfon cut off another's hand,
and this perfon die from fbme other caufe, the conlequencc of the
maiming can never take pbce ; — wherefore in this cafe alfo no regard
is had to any thing but the maiming^ on account of which an balf-^
fme is due; and no regard is had to the confequcnce after his again
becoming a Mujfulman^ which is a fpccics of rc-animation to him, be-
caufe^ as his becoming again a Mujfulman in this manner is a new birth
to him, no effect can afterwards take place from the former offence.
This is where the Kazee has iffucd a decree uniting him to the infi-
lanlefs where dels. But if the Kdzee have not iffued any fuch decree, whether the
been iffucd by apoftatc abfcond to a foreign country or not, — and he become a Afj^
iihichfn^^ yi/wtf//, and thcn die, in confequence of the lofs of liis hand, in this
a trnpitu fine cafe a Complete fine is due from the maimer. This is the dofbrine of ^
irtheconver- the two Elden. Mohammed and Zijer maintain that in all the(c caies
^T%\^^i an bajf fine is due, becaufe, from the maimed perfon apoftatizing
tsce. ^Jter the lofs of his hand, any cffeft attending the maiming becomes
biddir^ and does not afterwards occafion a complete fine in confe-
quence of his becoming a Mujfubnan^ any more than where a perfon
firikes off the hand of an a^ojlate^ and he becomes a Muffulman^ and
dies in confequence of the lofs of his hand. The argument of the
tvfo Elders is that, in the cafe in queftion, the offence of maiming was
committed upon a perfon Who from being a Mujfulman was, at the
time of maiming, in a (late of protection, and its confequence alfo takes
* Shedding bloodi or permUciiig it to be flicJ, unrcvengeJ.
4 place
Chap. IX. INSTITUTES. 243
place upon a prbte£i:ed perfon, as the perlbn maimed is a Muffulnuui
at the time of hi5 deceafe, wherefore a complete jine, (being the re-
/poniibilit/ for the perfon) is due, in the fame manner as it would be
due if he never had apo(hitized. The ground of this is that no regard
it had to the permanency of prote^ion throughout the duration of the
offence, regard being had to the exiftence thereof only at the time of
the cauie taking place (the maiming^ for inftance,) and at the time of
the cftablifliment of the effcft of that caufe. Now the time oi dura-
tion of the offence is neither the time of the caufe taking place, nor
of the eAablilliment of the etfedt of that cauie, and therefore no regard
is had to the permanency of protection throughout the duration of the.
oitcnce; in the lame manner as no regard is had to the permanency of
property throughout the duration of a vow ; — that is» — ^if a man fay
to his flave, *' If you enter this houfe, you are free,*' and he afterwards
fell that flave, and again purchafc him, and the (lave then enter the
houfc, he 16 free, although after the vow, and in its duration, he had
not been in the pofleilion of that pprfon.
Tf a Mok&tib become an apoftate, and defert to a foreign country, careofaAf#.
and there acquire property, and be afterwards made a captive with ^/V* ^^IX
fuch property, and brought back, and refufe to embrace the faith, and fi^riing to «
do not become ViMufuhnan^ he is^to Ix: put to death ; and the pro- ^*'^"^^"'
perty is to be paid to his owner in difcharge of his ranibm; — but if
any thing remain after difcharging the ranfom, it goes to his hetr^,
according to all the do£tors. This, according to the tenets of
the two difciples, is evident ; becaufe, as they hold that whatever is
acquired by an apoftate belongs to him if he hcfrce^ (o in the fame
maimer, whatever is acquired by an apoftate belongs to him, if he be
a Mokitlb : and it is (b according to Haneefa likewi(e ; becaufe a Mo-
msib is proprietor of his own requifitions folely in virtue of his con-
trad of ranfom; and as this contratSt is not fufpended by his apoftacy,
hut continues in full force, {o in the fame manner his power ovrr
property is not fufpended by his apoftacy, he continuing proprietor
li 2 of
144 INSTITUTES. Book IX.
of hisown acquifitions ; and his acquiiition, as beiog hU own property^
mud be applied to the dilchargc of his ranfbm ; and whatever may
remain goes to his heirs; for this reaibn, that as the acts of a
Makdtib' are not fufpended by the Jironger obftrudbn, {flaveryj) it
follows that they are not fufpended by the weaker obftru&ion, (apof-
tacy,) tf yir//<9r/.— Bondage is here termed the granger obftru£tian^
and apofbcy the weaker^ as feveral afts of an apoftate are univerlally
admitted to be legal and valid, fucfa as the claim ofiffspring; for in*
ftance, as was formerly (bted, (and moft of his ads, fuch as fale^
furcbafe^ and {o forth^ are by the two difciples held to be fo,)-—
whereas no ad whatever of zjlave is of any force.
aMtt^faA^ If a huibaod and wife both apoftatize, and deiert to a foreign
abTcoiuled country, and die woman beeome pregnant there, and bring forth a
fijTiJSn! child, and to this child another ch'dd be after\vanls born, and the MuJ^
^*vu^^ f^^'^^ troops then fubdue the territory, the child«and the ri&fATs. child
the property both are plunder, and the propefty of the flate: — the Mid is €6^
becaufe as the apoftate mother is made a flave, her child is {o like-
wi(e».as a dependant on her ;— -and the cbilJts child is (b, becaufe he is
an original infidel and an enemy ; and as an origin^ infidel vifec^ or
the property of the ihtc, fb is A^: the nvwnan^ child may moreover
CafcftAwKick be Compelled to become a Mujfulman^ but not the cbild^% child. Hajpm
^^y^ records from Ha$ieefa that compulfion may be ufcd upon the chUdl's
Ib^'Vr^^- child alfo, to make him e.mbrace the ftith, as a dependant of the
ttttcinrrfpea gromffatbcr. — It is to be obferved that there are four things relpeft-
^^^^ ing which, (accordbg to a tradition of Haffan^ the gran^atber noay
t)e made the father's fuhftitute, — and according to the Z&bir Rexvdfet
he may $ict be made the father's fubflitute*,r-:/ry7, ^ii,.-^^£l^^
SaJka-jfittir^ — tbirJUy^ devolution of tVilla^^zxA fourtbfy^ bcqaefts
tt> relations. — ^l*he cafe of Ifidm is (lated above ;<>— the cafe of SaJia
Fittir is, that if a Either be poor, or a flave, and the grandfaiber be
rich, and free, the Sadia-fiuir of the grandchild is incumbent upon
the grandfather, according to HaJan^-^hyA according to the Zdbu-
3 Raivdiyei
^'^^tWfh. ^' ^« not i.^r " "'°"' o^ ** hiTr^'^'^^is
^'^ and J4«C? r '"« ^K6» « .^ ** parents if *l '^^"ptio/
T* tot an infidel , ^* '"/urioos f« . ? *'*°» ^e is /:,/,.« " « con.
*45
I
246 INSTITUTE S, Book IX-
being had to his Ifldm are alfo twofold : — ^first. Alee embraced the
faith whilft he was yet a boy ; and the prophet confidcred his IJldm as
valid and fufiicient, infomuch that Alee obta'uied much honour by the
aftion :— SECOKDLY, the boy acknowledges • the faith in his hearty
and teftifies to it with his lips, and this is the fub(bnce of IJlam^ and
l\\t fubflancc of any thing is not liable to be iet aiide : the confequences
oi IJlatn^ moreover, zvt eternal bafpinefsznA future fahation^ and thefe
being the greatefl advantages and natural effects o(I/ldm^ they are accord-
ingly e(labli(hed ; — and any injury to which he may be fubjcft in confc-
quenco of his IJ!^ (fuch as incapacity to inherit, and fo forth) is
comparatively of little moment. The argument of Aboo Taofafy Zif^
fer^ and Sbefei^ in fupport of their opinion that no regard is to be paid
to his apoftacy, is that the apoftacy is injurious to himielf *. The argu-
ment ofHaneefa and Mohammed^ to prove that no regard is to be paid to
bis apoftacy, is that the apofbcy fubftantially exifts, and what \sfub-
Jlantial is not liable to be (ct aiide, as was before urged in fupport of
the opinion which aflerts that regard is paid to his Ifldin. — It is to be
obferved that the boy may be compelled to return to the faith after
apofiacy, as this is for his advantage; but he is not to be put to death
on account of his apoftacy, as that is funijhmcnt^ and punifiiment is
fufpended with refpeft to in£in£s, th^ being objects of mercy.—
b«it not other- AU that b here Aatcd applies to boys under age, but arrived at years of
^^^^- £fcretwHr^h% to a boy who has not yet attained diicretion, no re-
^urd is had to his apoftacy according to all the doctors, becaufe the
declaration of fuch does not amount to k. change offaitb. The fame
rule applies to lunatics :— aod z.iptxfyn intoxicated with Kqupr (b as to
be deprived of his rcaiba is accounted the iame as a lunatic.
• A peHbn under age it not lieU in lawto Mb ctpoUe of aoj ad by wUch homay
injure himmf, fuch at contraAing deb^ emancipating flatcs, and the like; and the fiar
nik is by thofe doaori applied 19 the cifCOOiSance offtch apeifiMi's aff^^.
CHAP.
Chaf.X institutes, 247
CHAP. X.
Of the Laws concerning Rebels.
Persons who rcfift the ImatrCs authority arc of four defcripticas. — *^^J*?'* ^
L Thofc who live iii a ftate of difobcdicncc to the Imdm without ifallt/
afliguing any rcafon, whether in open force or othcrwifc ; and who
rob and myivdcT Mujfulmans^ and put travellers in fear; — and thefe arc
termed Katta-al-T'areek^ or h'lghvoay robbers^ the laws refpe£Ung
whom have been already treated of. — IL Thofe who are not engaged
in open force, and who rob and murder Mujfulmans^ and put travellers
in fear; but who proceed upon fome avowed pretext; and thefe arc
alfo fubjeft to the fame law with hig/nvay robbers. — III. Thofe who
being in a large body, and poffcflcd of a power of open refiftancc,
withdraw themfelves from their obedience to the luuim^ under an ap-
prehenfion which leads them to fuppofe that he condu£ls himfelf
improperly, and which impropriety of condudk is in their conception
a fuificient caufc of war, whether it be tyranny, or infidelity : and
thcfc arc termed Kbarijces^ or infurgents \, and they hold the deftroy-
ing of Mujfulmans^ the feizing of their property, and enflaving their
women, to be lawful, and accufc the companions of the prophet of in-
fidelity: the laws therefore refpefting fuch, according to all the
learned, and all the traditionifts, are the fame as the laws concerning
UFBELS. — IV. Muffulmans who withdraw themfelves^ from their obe-
dience to the Iffidm^ and who hold it lawful to dedroy Mtiffulmans^
and to feize their property, and enflave their women, in the fame
manner as infurgents. People of this fourth defcription are termed
Bagbdt^ [rebels:] Bagbdi is the plural oiBdgbee: the word Bdgbee^
in its literal fenie, means prevarication;, alfo injuflice and tyranny: —
24 8
INSTITUTES.
Book IX.
ia the lan5'jagc of the law it is particularly applied to injujilcc^
namely, withdrawing from obedience to the rightful Imdm^ (as ap-
Dcfinitien of pears in the Vaitabal-Kadccr^ — By the rightful Imam is underftood a
r»(hfuihnam. perlon in whom all the qualities eflential to magiftracy arc united,
fuch as IJlamifm^ freedom, lanity of intellcdl, and maturity of age, —
and who has been eleclcd into his office by any tribe oCMuJJitlmansy
with their general confent ; — whofe view and intention is the advance-
ment of the true religion, and the ftrengthening of the Muffulmam^
— and under whom the MuJJulmans enjoy fccurity in pcrfon and pro-
perty ;— one who levies tithe and tribute according to law ; — who, out
of the public treafury, pays what is due to learned men, preachers,
Kdzees^ Mooftis^ philofophers, public teachers, and fo forth ; — ^and who
is iuA in all his dealiiigs with Mujfutmans: for whoever does not
anfwer this defcription is not the right Imdm^ whence it is not incum-
bent to fupport fuch a one, but rather it is incumbent to oppofe him,
and make war upon lum, until flich time as he cither adopt a proper
mode of conduft, or be flain ; as is written in the Mcdin^al-bikkdyeA^
copied fromdthe Fawdyed.
The I man
muA kfX en-
deavour to
reconcile re-
keU;
It is incumbent upon the Imdm to recal rebels to their allegiance,
and flicw them what is right, in fuch a manner that the mifundcr-
ftanding which occafioned their defcftion may be removed ; — becaufc
yilee thus conducted himfclf with refpeft to the people o(Hirroo (a
diftricl in the territory o( Koofa,) when they rebelled; — ^and alfo, be-
caufc this mode of proceeding is ealier thanyir^r, and it is poflible
that this more cafy mode of proceeding may fucceed in removing the
evil, fo as to afford no occafion for more violent meafures: — it is
therefore requilite that they be recalled to their allegiance to th%-
Jmdpij and (hewn what is right.
baimuiknot Tug f^/ifjj niyft jjqj^ however, neglect more forcible meafures,
ufing force, but in thc beginning of an infurrcAion may oppofe rebels by force of
ry. gj.^5^ fufficicnt to qucll them. Our author remarks that Kadoorte
has
Chap. IX. INSTITUTES. 249
has thus aflcrtcd in his compendium: and Imam Khdbir ZaJa fays
that our dodtors hold it to be lawful for the Imam to begin by making
war upon them, where they are levying troops and collccling thcm-
fclvcs together. SAqfc'i maintains that it is not lawful to make war
upon rebels, until they commit a£ks of hoftility, becaufe it is not law-
ful to kill Mujuhnans but for the purpolc of rcpulfion, and rebels arc
Mujfulmans : — contrary to the cafe of infJcls^ the commencing war
With whom is lawful, as their infidelity (according to ShaftT) lega-
lizes the putting them to death. The reafoning of our doftors is
that the propriety of commencing war upon rebels refts upon a cir-
cumftancc which argues that they will commit hoftilities on thtir
part ; and their levying troops, and colle<Sting themfelvcs together,
and withdrawing themfclves from their obedience to the Imam^ are all
circumftances which argue an hoftile intention ; for if the Imam were
to wait until they had actually commenced hoftilities, it is likely that
he might afterwards find the rcpulfion of them imprafticable ; it is
therefore highly rcquifite that he commence hoftilities againft them,
under any of the above circumftances, in order that their wickcdaeis
may be repelled.
Upon the /jwfi/« being informed of rebels purchafing arms and in- The /!«»>
ftruments of war and preparing for hoftilities, he muft inftantly mikillicwr
fcize and imprifi^n them, until they turn from their rebellion, and re- **" ***' ^^^ ^
pent, in order that their wickednefs may be (ai far a.< is poftiblc) «« imurrcc.
repelled.
lion.
If the rebels have a body of forces to which thofe who fly from Rub of <
rebels where
battle may join themfclves,. in this cafe it is ncceflary, without lofs
of time, to put to death all the wounded, and to purfuc thofc who iheyhavea
fly, in order that they may not join that body, and that their wicked- jtrvt.
ncfs may be repelled: but if the rebels have not a b<Kly of this kind m
rcfcrvc, their wounded muft not be flain, nor thofc of them purfrcu
who fly from battle, as in thia cafe their wickednn^ io rcj>c!lrd with-
Voi, II. K cur
ISO INSTITUTES. Book IX.
out further bloodflicd. — SAafei Cxys that ia neither cafe arc their
wounded to be flaiu, or thole of them who fly from battle purfued^
becaufe the Having of them is not lawful but for the purpofe of repul^
fion^ and upon a rebel being difabled, or flying from battle, the flaying
of him is no longer for the purpofe of repulfion^ and confequently is
illegal. To this, however, it may be replied that the flaying of them
turns upon the izr^j/;?;^;// of hoflility, not upon o^Whoflrlity, (as was
before ftated,) and where they poflefs a referved force to which the
wounded or the fugitives may join themfelves, this argunvent of hoftU
lity cxifts.
tn/propcr^ The families of rebels arc not to be reduced to flavcr>', nor their
^*1!ttTiol P^^P^^'^y divided among the Mujfulmans^ [in the manner of plunder.\
Utc. The rcafons for this are twofold: — first^ AUe^ in the war of Jaml^
ordered that " the flavcs of the rebels fliould not be flain, nor their
** wives or families enflaved, nor their property taken/*' and he is
legiflator in this particular ; (the expofltion of that paflage, in the or-
ders of ^/rr, that "-^ tbejlavesjhouldnot beflasn^ is, that they arc not
to be flain, ivbcre there is no body of the rebels to which they might
unite themfelves y iffuffered to go; — for where there is fuch a body,
it is at the difcretion of the Imam cither to kill the flavcs, or to im-
prifon them, fo as to prevent their jobingthis body:) — secondly,
rebels are Mujfulmans^ and IJlamifm occaflons protcdtion to perfbn and
property.
The irmi of The Muffulmans need not hefitatc to fight rebels with fuch of their
mm^gttoft ^'■"^5 ^ ^^ ^"^^^ ^^^^ hands, provided they have occafion for them,
.theafchrei. Shafei maintains that this is unlawful: and the iamc difFerence of
opinion fubfifls refpefting fuch horfes of the rebels as fall into the hands
of the Muffubnans. The argument oi Shafei is that as thtfe arc the
property of Mujfulmans^ the ufe of them, unlef s with confent of the
owner, is illegal. The arguments of our doftors upon this point arc
twofold, — FIRST, Alee divided the arms of the rebels among his foU
lowen
Chap. X. INSTITUTES.
*5^
lowers in Bafra^ and this divilion was made on account of necejfity^
and not as a transfer of property : — secondly, as it is lawful for the
Inidm to take tha^arms o( others who are not rebels, and to divide them
among the troops, to u(e according to neceffity, it follows that the
fame aft with refpeil to the property of rebels is lawful in the hmim a
fortiori^ on thb ground, that it is lawful to adopt zfmall evil, for the
purpofe of repelling a great one. It is incumbent on the hn&m^ more- of re£S?muS
over, to detain the property of rebels in cuftody; and he muft neither ^^^ **
(hare it as fpoil, nor reftore it to the owners until they repent; but
upon their repentance, he may reftore to them their property : their
property is not to be (hared as fpoil, becaufe rebels are Mujfulmans^ and
I/lamifm occafions prote&ion to perfon and property, as was before
ihted ; — but it is to be detained in cuftody, as their wickednefs may
be repelled by cutting off their refources ; their property, therefore, is
to be held in cuftody although the Mujfulmans hzvt no occafion for it :
(fuch horfes, however, as are among their property, muft be (old,
becaufe keeping the fria b both eafy, and alfo advantageous to the
owner:) — ^and their property muft be reftored to them upon repent- Slii^2^ft
ance, becau(e the rea(bn of detention ceafes upon repentance, and the their lepcac-
property is not^^ofill *****
If the rebels (houU have exa&ed titbe or tribute of the inhabitants Thhiw iri-
of a territory which they had overcome, the LnUm muft not again tSihfrX^^
levy thie or tribute there, becaufe the Imam is- vefted with authority ^^^ |^
to coUeft tho(e taxes of the people, in virtue of the proteOion be affords ^c:
tbem ; and ia the ca(e ia quefiion he has not prote&ed them. If, thed,
the rebds expend the titbe and tribute upon their proper objects, it
fuffices with refpeft to the people of whom tho(e taxes bad been col-
lected by them,- and the titbe and tribute owing by them is duly ren-
dered, as theclaioumt to them has received his. right: — ^if, however,
the rebels have not expended the tithe or tribute upon their proper
objects, the people of that diftrid are bound in confcience to pay them
over again, beciufe what they (irft gave has not been applied to the
Kk a proper
j^z INSTITUTES. Book IX.
proper objcfl:. Our author remarks it as an opinion of the learned In
the law, that it is tiot incumbent upon the people to pay tribute over
again, bccaufc the rebels are alio warriors^ who make war upon infi"
deh^y and arc therefore proper objcdts of expenditure of tribute, al-
though they be rebels ; and in the fame manner, it is not incumbent
upon them to pay tithe a fccond time, where the rebels are in a ftate
bot upon the of poverty, fmce tithe is a right of \\\tpocr: — buty^r the future the
th^ wrntory, ^^^^ ^*l^ colleA tithe and tribute from thofe people, becaufe he
theyconiinue (h^n protefts them, and confequently his authority over them is
asbehire. evident.
J"? '•^^ If> in an army of rebels, one of them kill another, and the rebels
other does bc afterwards overcome by the troops of the rightful Imiimj no fine of
not incur any yood is cxafted of the flayer; nor is he fubjeft to retaliation ; becaufe
the authority of the rightful Lnim did not extend over him at the
time of the murder, and hence the a£fc does not occafion either re-
taliation or fine; — ^in the fame manner as a murder coh^ntiitted m a
foreign country; that is, if one MuJfuIman\iS!L another in a foreign
country, and the Muffulman forces afterwards overcome that territory,
the murderer is not liable to any punifliment; — ^and fo alfo in the ca(c
in qucftion ; — becaufe the reafon (namely, non-exiftencc of the hnan%%
authority at the time of the fa£t,) appears in both caics alike.
Mardjr,com. If rebels overcome a city, and one of the inhabitants wilfully
city pofTeired murder another, and the troops of the rightful hudm afterwards re-
whe'ri^Jh'eJ"* cover the city and drive the rebels away, before they have been able
have nocefta. to e(labK(h any jurifditQion over the inhabitants, in this cafe retaliation
jaliWiafoiT, n^wft be executed upon the murderer, becaufe in fuch an inftancc the
orihc dl*'^ authority of the In^m has never been completely terminated there;—
occafions rt- retaliation \i therefore due.
talttcioiu
« As being Mnjfulmant^ and confequently fubjcA to the divine injunAion in this par.
titular.
If
Chap. X. 1 N^ S T I T U T E S. 2-53
If a pcrfon, not a rebels (lay a rebel, the murderer ncvcrthelcfs in- A 'M.p«'-
hcrits of the rebel*, where connexion of inheritance fubfifts between rebel may yci
the parties (liich 2s father znd/cn for inftancc.) — If. moreover, one rcM 'h"^" and[ in
kill another, and declare that *' he had flain him in the right f^^' and ihcfameman.
perfift in this declaration, in this cafe alfo the flayer inherits of the flain : ^ly inherit
but if the flayer aver that •* he had killed him unrightfully y' in this ^fn"" Wc'^K
cafe he cannot inherit of him. This is the doftrine of Haneefa and lif/iiic aft-
Moharmned. Aboo Toofaf maintains that the flayer cannot inherit of
the flain in either cafe, and fuch is alfo the opinion of Shafei. This
difference of opinion has its foundation in the rule of our dodors,
that where any perfon,. not a rebeU dcftroys either the perfoa or the
property of a rebel, nothing whatever is incumbent upon him, neither
fim^ retaliation^ nor indemnification for the property, — nor is he an
offender^ bccaufe every perfon not rcbcUigus is commanded to make
war upon rebels, for the purpofe of repelling their wickednefs ; — and
in the fame manner a rd^el^ if he kill one who is not a rebel, is not
liable cither to fine or retaliation : — but yet he is an offender. — Accord-
ing to Sbafeij on the other hand, (in conformity with an opinion of
his before delivered,) the rebel is liajble iofne, retaliation^ or indemnify
cation for the property : — and the fame ditFerence of opinion obtains
in a cafe where an.apoftate dies, or deferts to a foreign country, after
having deflroyed the pcrfon or property of any one. The argument
oiShafei is that the rebel in queftion has dcftroyed protc£kcd property,
or has flain a perfon of protefted blood, and is confequently anfwer-
ablc, in the fame manner as is the rule with refpeft to an apoftate
who is guilty of a deftruftion of perfon or property before he has
become independent of the Mujfuhnan government X by uniting him-
* By the law of inheriunce, a murderer \% incapaciated Aom inheritiiig of the peifoo
whom he has murdered, whatever be their relative comiexion^
^ That is, in the caufe of the rightful Imtm^ as being ^ rehL
X Literally, hefire hi has ac^uind a pnver 9/ •pen nfijianct^ for upon this fmutr $f9ptu
TtJiJtMnii being (by whatever means j acquired, a perfoa is no longer conftdered as beiHg
fihjiH t$ the Ittw. %
felf
254
INSTITUTES. Book IX.
fclf to a foreign power. The arguments of our doftors upon tliis
point arc twofold : — first, what they maintain is the united opinion
of all the companions, as recorded by Z&hreei — secondly, the rebel
in queiHon has committed tb deflru£tioa under an invalid pretext ;
and an invalid pretext (lands the fame as a valid pretext, in rcfpcdt to
the obligation of refponfibility, where, together with the invalid
pretext, there is alfo a power of open refifbtnce ; — in the fame manner
as where an alien kills a Mujfuhnan in a foreign country, in which
cafe the alien, if he afterwards bccomr a Muffuhian^ is not refponfiblc
for the murder; becaufc (at the time of the murder) he poflcfled
a power of open refiftance*; and alfo a pretext. — ^The principle
upon which this proceeds is that in order to the law taking efteft
upon a perfon againft whom any thin? lies, it is requiiite that he
cither acknowledge the law, or that there cxift a power of enforcing
the law upon him at the time of the fa£t : — now a rebel does not ac-
knowledge the illegality of flaying one who is not a rebel, fince in his
belief (in conformity with his invalid pretext^ the flaying of fuch a
perfon is allowable ; — neither is there a power of enforcing the law
upon a rebel, (ince the InidnC% authority is terminated with rcfpeft to
a rebel, in confequcnce of the rel^cl being poflcfled of a power of open
refiftancc. — The cafe is othewife previous to the cftabliflimcnt of
the power of open refiilance, as the Itndtns authority is then not extin-
guiflicd. — It is alfo othcrwife where he flays "without a pretext, as in
this cafe an obligation of refponfio'dity reds upon him according to
his own belief. — It is contrary, alfo, to criminality^ as a rebel is an
offender in flaying a perfon who is not a rebel, although he be poflefled
of a power of open reflflance; for the pofleflion of this power does
not prevent a circumftance bemg^jyiv/, fiace the finfulneis of an t€t
is on account of thtf right of the law, and his pofleflion of the
power of open rcfiflance is not cAabliflied with refpcA to the
LAW. — ^This point, therefore, being -eftahliflied, it is to be obfcryed
* ThiC is, was altogcthec aodepcndeiit of the MuffJmem govemawnc
3 that
Chap. X. INSTITUTES. %s$
that the (laying of a rebel by one who is not a rebel is not an uhrigA^
/u/:k&j (the rebel licing flain by him in the riglt^) and therefore nei-
ther prevents inheritance nor occaiions refponfibility, — The argument
of Moo Toofafy (in the cafe of a rebel killing a loyalift) is that an in-
valid pretext has no regard paid to it further than merely to prevent
rcfpoufibility ; refponfibility therefore is not incumbent: but yet the
flayer does not inherit, becaufe his being the heir depends upon the pre-
vious cAablifliment of his right of inheritance; and an invalid pretext
is of no confideration to eflablifh a right of inheritance; wherefore he
does not inherit of the flain. The argument of Haneefa and Mobam^
nied upon the point in qucftion is that the folc realbn why one re-
lation inherits of another relation is becaufe rclationfliip occafions
the eftablifliment of a right of inheritance ; — and relationfliip exifts
in the cafe here fuppofed : now inheritance is rendered illegal only
by the aA of killing, which being lupervenient, there is a neceifity
to abrogate the lupervenient illegality ; and an invalid pretext is fuf*
ficicnt for this purpofe, in the fame manner as it fuflices to abro-
gate the obligation to refponfibility : the invalid pretext, therefore,
is regarded for the purpofe of doing away the illegality :— one
condition of it, however, is that the murderer continue fteady
in his invalid pretext, and in his belief ;-^for if he were to fay,
" I now am fenfible that I flew him unrlgbifully^^ — in this cafe he
would be refponfible for the aA, as the pretext afore(aid, which had
prevented refponfibility, no longer exifts.
The fale of armour or warlike ftores to rebels, or in their camp^ aiwi or tr-
is abominable^ becaufe felling arms into the hands of a rebel is an !^',J**"*
afliftance to defection. There is, however,, nothing objcftionable in belt:
the felling of arms in a city (fuch as Koofa^ for inftance,) either to
an inhabitant, or to a perfoh. of whom it is not known whether he
be a rebel, although he fliould aikually belong to the rebels, becaufe
the bulk of people in cities are commonly of loyal principles.— It is L"li3cSi
to be obferved, alfo, that it is not criminal to feU to rebels any thing "^^^^^
except
zs6 INSTITUTES. Book IX.
except what may be driAly tcrmcdtanm^ infbmuch that materials
to conftrufl arms, (fuch as iron^ and fo forth,) may be fold to them
without offence;— in the fame manner as it is illegal to fell mufical
inftruments ((uch as luies^ for indance,) but it is not illegal to fell
the wood of which they are niade;-^and analogous to this is alio the
fale of grapes, or winc^ — that is to fay, the felling of grapes to a
perfon who will make wine of thofe grapes is not illegal, although
the fale of "Mttc be prohibited.
HEDArj.
( *57 )
HE D J Y A.
BOOK X.
Of the Ltftt;/ refpcdling Lakects^ or Foundlings.
LAKEET, in its primitive fenfcy fignifies any thing Tifted from Defialtioa of
the ground: — the term is chiefly ufed to denote an infant aban- ^^^'
doncd by fomc perfon in the highway: — in the language of the law
it figniiies a child abandoned by thofe to whom it properly bcJongi,
from a fear of poverty, or in order to avoid deted^ion in whoredom. —
The child is termed Laktctj for this reafon, that it is eventually li/teJ
from the ground^ wherefore this term \% figuratively ^^^X\eA. oven to ihe
property which may happen to be found upon it. The perfon who
takes up the foundling is termed the Mooltakit^ or tairr^up.
Thb taking up of a foundling ia laudable and generous, as it may The raking
tend to prefervc his life- This is where the finder fees no immediate SSg u Uod^
rcafon to fiippofc that if the child be not taken up il may perifli ; — j!W«^» ^^ (»'•
VoL.IL L but hcumhM.
25? F O U >♦ D L I N G S. Book X.
but where he fees refelort to npprchcnd that it may otherwifc periih,
the taking of it up is hicumbe^i.
AfbuRdlingls A POUNDLTKG is rVec; }xQZ}ik freedom is a quality originally inhc-
^^ rent in man; and the Muffuhnan territory, in which the infant is
founds i$ a territory of freemen^ whence it is alfo free : morcover,^^^-
men^ in <i Mujfulman territory, abound more than flavesj whence the
foundling is free, as the Jhia/fer number is a dependant of the greater.
and is main- The maintenance of a foundlitig is to be defrayed from the public
uinefi by che j p^afury ; becaufe it is fo recorded from Omar ; — and alfo, becaufe, where
the foundling dies without heirs, his cflate goes to the public treafury ;
and as that is the property of the Mujfulman community, his mainte-
nance muft be furnilhed from this property, fincc as the advantage
refults to the community, the lofs alio falls upon the community ;
— whence it is that the Deyii or fine of blood is due from the puUic
treafury, where a foundling commits mandaughter.
A foundling TrtE Mooltakit is not to exaft any return from the foundling on
tohis mJm^ account of his maintenance, iince in maintaining him he z&s gra-
mu^" MitA ^^*^^^y» ^^ ^^ ^^^ "^ authority over him : — ^hc therefore cannot cxa£k
he forniih h any return from the foundling, — except where he ba» fumilhed him
S/'m^if maintenance by order of the magiftrate, in which cafe this m:untc*
trace. nance is a debt upon the foundling, becauib, the magiftrate^s autho*
rity being abfotutey he is empowered to- exad tlic ceturn from the
foundling.
Noperfoncan If any perfon take up a foundlings no other per/on is at Hbcrty to
liti^ from hit ^^^^ ^^^ foundling from him, becaufe the right of charge of the
Sf^inJ^if[ ^^^^^'*"g i* eftabliflicd in him, as he firft laid hands upon it.— If,
jjr^%'* however, any pcffon c/aim the foundling, faying ** This is my child,''
reio^. the claimants declaration is credited on a principle of benevolence.
This is where the Mooltakit docs not advance any clahn of parentage:
but if the Mooltakit alfo make a claim, fiying " This is my child,''
he
Book X. FOUNDLINGS ^$9
he has the preference, becaufc both parties arc upon an equal footing
with rcfpecl to their claim; but one of them, namely, the Mooltakit^
IS in immediate pofleflion, and is therefore preferred to the other.
Analogy would require that the declaration of the claimant be not credit-
ed, becaufe in confequence of it the right of the Moo/iaih is deftroyed :
but the reafbn for a more favourable conftru£tion of the law in this
particular is that the claim of the plaintiff is a declaration upon a -point
which is advantageous to the infant, as he thereby obtains the honour
of an avowed parentage, and the difgrace of a want of parentage is by
the claim removed from him. Some have aflerted that the declara*
tion in queftion is valid only with rclpedl to the cftablifliment of paren-
tage, but not with reipect to the dcilrudion of the Moo/iahYs right of
poilciTion; — and fome, again, fay that upon the parentage being
edablifhed, the Moo/taiiYs right of poiTcflion is deftroyed, becaule
one confequence of an eftablifhment of parentage is tliat the father
has a pxeference, in the charge of his child, over all others.
If a Mooltakh declare his foundling to be bis awn cbilJ^ after iiav- AMc^Ujhrs
ing already declared it to be afoundlingy fome fay that his declaration i^^J^
is valid, both from analogy, and alfo on a principle of bencvcdencCf be- ^^•^ ^^
caufe his claim rtfpedbs a thing already in his hands, and is uncontro- admitted
verted, — nor is any other pcrfon's .right thereby deftroyed. The better
opinion, however, is that his claim is valid only on a principle tfbene^
volenccj and not from anahgy^ becaufc the Maoltakit conCradifts
himfelf, as he at firft declared the child to be a foundling, and after-
wards avers it to be bis own cbild\ — ^and the rcafon.for a more favour*
able conftrii^on is that the cc<ntradiAion refpcAs a thing of a con«>
ceded nature, iince it is poflible that this child may have been bom
of his wife, without his knowledge, and that he afterwards comes to a
knowledge of the circumftance.
If two perfons advance a claim together, each aflerting — " the Cafe of t
^^ foundling in the hands of fuch a perfon is my child," and one of ^r^<\^e
LI 2 them
2do FOUNDLINGS. Book X-
by two per- them point out a particubr tnark upon the foundling's body, and not
the other, the foundling is adjudged to hiin, iKCaufe apparent cir-
tumAanees bear teftimony in his f^-^ur, as the mark corrciponds
with his declaration. But if neither of them point out any particular
mark, the foundling is adjudged 5 both of them, becaule they are
both npon a footing with refpeft to the ground of their claim. If one
of them, however, lay his claim firft [that is„ before the other,] the
foundling is adjudged to him, becaufe his right is eftabliflied at a time
when no perfon controverted it; — except where the other brings
evidence, as evidence is more powerful than a iimple clahn.
A fimnaiing If a foundling "be taken up in a Mujfulnum city or village, and a
f l?I!^!i!S?« Zhnmee claim it as bU chtld^ the parentage is eftabliflied m the Zim-
MitfmlmaHicT' fjj^^^ but th« child is a Mujfuhtan* This proceeds upon a. favourable
MMfulmmi conflru£Uon; becaufe the claim of the Z/mmr^ involves two points,
L a declaration of parentage, which is advantageous to the child>
— ^^11, a deftruftion of the IJlamifm eftabliflied from the circum-*
ftance of the child being found in a Mujfulman territory, which is /»•
jurious to the child ; and his claim is admitted fo far as it is advan-
Md if » « tageous to the child, but not fo far as to be injurious to him. If,
iory» he is a however^ the child be found in a city or village of the Zimmeesj or in
Zimmee. ^ cburcb ov fynagoguej it is a Zimmee. This laft opinion is univer&l,
(that is to iay, is unanimoufly admitted) where the foundling is
taken up, in thofe places, by a Zimmee: — ^but if a foundling be taken
up in any of thofe places by a Mujfuhnan^ or if a Zimmee take up a
foundling in any Mujfulman pbce, there is a difierence of opinion ;
for it is (aid in the Mabfoot^ treating of foundlings, that in this cafe
the place is regarded, and not the Mooltakit or taker-up of the found*
ling ; — ^that is, if it be found in a Mujfulman place, the foundling is a
Mujfulman^ and if not, it is a Zimmee^ whether it be taken up by a
Mujfulman or an infidel: and the reafon is this, that the foundling
has been firft difcovered in that plice. In fome copies of the book of
claims from the Mabfoot it is iaid that in this cafe regard is had to the
Mooltakit ;
Book X. FOUNDLINGS. i6i
ilfa0//ai//;-— that is, if a Mujfulmart have taken up the foundfiDg, it is.
a Mujiilman^ and if a Zifmnee have taken it up it is a ^ifunce:-^
(and the iama is mentioned by Ibn Shnaia from Mobawned:) wd the
reaibn is this, that pofejjion is mo t powerful than fLacn becaufe, if
parents were brought as captives, with their infant child from a
foreign country into the Mujfuhian territory, tl^e infant is an infidel in
conformity with the ftatc of the parents, from which it. is evident that
fojejjion is more powerful than place. In other copies of the book of
claims it is faid that, out of tehdernefs to the child, regard muft be in-
variably had to IJldmi — in other words, if the child be found in a place
belonging to Zimmefs^ and be there taken up by a Mujftdman^ it is a
Muffulman\ and if it be taken up by a Zimmee in a Mujfulman place^
it is in this cafe alfo a Mujfulman.
If any perfon lay claim to a foundlingr as being btsjlme^ his chim a foundling
is not admitted, becaufe as it is apparent that the foundling x^free^ cuSmcd^Ts a
it caimot be fuppofed a flavc unlefs the claimant produce evidence to Jiam.
prove tluit it belongs to him asfucb. Obfcrve, alfo, that ifzjlave Aflavc'sdaim
were to cLnim a foundling, faying ** this is my child," the parentage Wnh^J^t^fviQ
is cftablifhed in him, becaufe this is advantageous: the foundling, *^""*i^"f "
however, tsfree^ becaufe the child of a man who is a fl^vc is free the foundUng
when bom o(zfree woman, and it is a (lave when born of a woman '*-^'^*
whoisa/^v; concerning the child being a flavc, therefore, there is
a doubt ; and hence MsfretJom^ which is (hewn by apparent circum-
flances, cannot be deftroycd, becaufe of the doubt. A freeman, in
claiming a foundling, has preference to a flavc, and a Mujfulman has
preference to a Zimmee^ becaufe the claim o^tl freeman or of a Mufful-
numis mod advantageous to the infant.
If there be any. property upon a foundling (fuch as bracelets and The property
fo forth,) fuch property belongs to the foundling, becaufe apparent ^»^<>'^'^;'^ ^
circumitances argue this: and m the fame manner, and for the fame Hngiti^//;
reafon, if tlierc be any property faftened on the animal upon which a aj5rJ^i[oWs
5 foundling
262
afe upon the
Muihoriiy of
th« Kdxti.
FOUNDLINGS.
Book X.
foundling is expofed, fuch property alio belongs to the foundling.
The Mooltakii moreover mull expend this property in fupplying the
wants of his foundling, upon an order from the Kd%ee^ becaufc no
perfbn is known as proprietor of it, and the Kdzee has authority to
expend property of this nature upon fuch an objefk. Some fay that
the MooliakU is at liberty to expend the property in fupplying the
wants of his foundling, without any order from the Kd%ee^ becaufc it
appears that the property in qucftion belongs to the foundling ; and a
Mooltakit is authoriled to provide fubliftence for his foundling, and to
purchafe fuch articles as arc rcquifitc and neceflary for him, fuch as
viSuals and clothing.
cannot con-
traa hU ^
foundling in
mtniage:
nor perform
any a^s in
refpcA to his
property
(without au-
thority:)
It is not lawful for a Mooltakit to contrafl his foundling in mar-
riage, becaufe he has no authority for fp doing, (indc the rcafon for
fuch authority, (namely, relation/hi^.^ proprietorjhipy oxfovereignty^
do not exift in him. In the fame manner, it is not lawful for a Aibo/-
//i/vV to perform any adls refpedling the property of his foundling,
analogous to the reftridlion upon a mother ; — that is, a mother has a
right to the charge of her infant child, but yet is not at liberty to
perform any a£ls refpefting his property; and a Mooltakit flands in
the fame predicament. The principle upon which this proceeds is
that authority to acl with refpeft to the property of an infant is cAa-
blilhed with a view to the incrcafe of that property; and this is
nflured only by tviocAVcyAicSxznces^ perfefl difcretiofiy and complete ajfec-
tion: now in each of the perfons in queftion only one of thefc quali-
ties exiAs; for a mother, although (lie entcruin a complete affeflion
for her child, is deficient in point oi difcrction\ znd:i MocliaJtit^ zU
though he be pofiTefled ofper/eff dijcretion^ is deficient in aJefJion.
bur
uicc
ofx*>
lie may It is lawful for a Mooltakit to take poileflion of any thing pre*
E^poocfiioa ij^j^j^j jjj i^jj foundling as a gift^ becaufe this is of fmgular advantage
to the foundling: and for this realbn it is that an infant is at liberty to
take pofleflion of a gift, where he has attained difcretion; and in the
7 I'iin^c
Book X. FOUNDLINGS. 263
fame manner the mother oizw infant, or her executor^ arc at liberty to
take poffeffion of any gift prefcnted to the infiuit.
A MooLTAKiT is at liberty to fend his foundling to fchool for »nd fend him
the purpofe of education, becaufc tK^s comes under the head of fuifion
and inflru^ion^ and attention to his welfare.
A MooLT AKiT is at liberty to hire out his foundling. — Our author He cinnot let
remarks that this is recorded by Kadooree in his compendium. In hjj^.^"' ^
the Jama Saghccr it Is faid that it is Mi lawful for a Mwltdkit to hire
out his foundling ; — ^and this is approved. The ground upon which
the report of Kadooree proceeds is that letting out to hire is one mode
of inftruilion. The rcafon for the oppofite doflrine, as ftated in the
Jama Sagbeer. is that a Mooltaiitis not at liberty to turn the faculties
of his foundling to his own advantage; he is therefore in the fame
fituation as an uncle: contrary la the cafe o{z mother^ fmce (he is at
liberty to turn the faculties of her child to her own advantage, as
ihaU be hereafter demonflrated in treating of Abominations.
HEDATA.
( «<4 )
H E D A r ji.
BOOK XL
Of L^ltMS^ or Trtfof/.
DdUiiMflf y OO K.T A fignifio piopcity whidi a peribn 6ndt lying lyoo Ac
'^''^ ,1 r* ground, and takes away ibr die poipofe of piefervtng it, in the
manner of a tri^. It it proper to oUerve that the terms Lakeet and
Lotktm have an alBnity with relpeft to iharjhft, the difewnee be-
tween them being merely this, diat Lmkigt u u(ed with i^tid to
the human (pedes, and Lm(/« with regard to any thing dfe.
A«>*wpf*> ALooKTA, or Tnve property, tsconfidered as a tnift in die
^i^ hands of the MMskit or finder, where he has called perions to wit-
W(«rtkt neft that ** he takes fudi property in order to prefinre it, and that
** he will refiore it to the prapiietor,**— becaufe thb mode of takmg
it is authoriied by the law, and is even the m^ e^iUe conduA*,
• Tlntkteftj, dw taking •p«ftlwprapatfk /vnairMtftj the &AV,aai it cvm
aMrv W^cM dua fiiferipg k to MoniaiilMC k tt IowmL
according
Book XI. TROVES. 265
according to many of our do&on. This is where there is no appre-
henfion of the property being damaged or deftroyed*: — but where
that is to be apprehended^ the taking of it up is incutubent^ accorduig
to what the learned in the law have remarked upon this point. Now wiw m Mt
fuch being the cafe, the property b not a fubjeft of refponfil^Uty ; that rwuiy da-
is, indenmiiicatton for the trove property is not incumbent upon the ^^. ""^
finder, where it happens to perifli in his hands: and in the fame handf.
manner, the finder is not refponfible in a cafe where himlelf and the
proprietor both agree that he had taken tlie property avowedly *^ for
** the owner;** becaufc thdr agreemait in thb point is a proof with
refped to both ; and hence the declarat4on of the proprietor that ^' he
[the finder] *' had taken them for the owner** amounts to the lame
as if the finder were to produce evidence that he had taken them
for the owner. — ^If, however, the finder declare *' I took them for Bokfiheavoir
'* my/e^^^ refponfibQity is incumbent upon him according to all au- ^ pimrc^
thorities, becaufe he here appears to have uken the property of JJJS^^JiJ^JJ
another without that other*s content, and without the permiifionof fciiowsafe.
the LAW.
If the finder (hould not have called any perfi>n to witneis, at Tbc Coder l»
the time of his taking the property , that *^ he took it for the owner,** ^^!^'!^^
•od he and the owner afterwards differ upon this point, the finder ^^*? *^
faying ** I took ilfir the vwrntr^ — and the owner denying this,-~ teSify ikat y
indemnification is due, according to Hmieefa and t/tobmmmd. Aboo \mJ^^
nrfrftkyt that indemnification is not due, aind that ihtjlftdtr\ declar-
ation it to be created, as appearances tefUfy in his behalf, becaufe it
is probable that his intention wasv«r/mir/, and not ^mtW n/. The
argument of Hmiefa and AUAammd is duit the finder has already
acknowledge the Mt which occafions refponfibility, (namely, his
taking the property of another,) and afterwards pleads a circumffamoe
ia coofequence of which he is diicharged from refponfibility, by de-
imi^^iii wti kiwg Ukm «^**
Vol. II. M m daring
a66 TROVES. BooicXI.
daring that he had taken the property for i/je owner ; but as this is
a doubtful piea, he is not difchargcd from refponfibiiity : and with
refpcd to what is urged by Aboo Too/of^ that ** appearances teftify in
•* the finder's behalf/* they reply that in the ianie manner as appear-
ances argue that the finder took the property for the owner ^ fo do they
likcwife argue that he has taken them for himfetf^ as it is probable
that a pcrfon who performs a£ls with refpe£l to property does fo for
bimfelf and not for another ; and hence, as appearances on both fides
lead to oppofite conclufions, (hey are on both (ides dropt-
H^Sy^ In calling people to witnefs it fufficcs that the finder fay to the
witneflcd by byftanders " If ye hear of any one Iccking for this /rw^-property,
Mcificiti^^f " &xt&, him to me;'' — and this, whether the trove property confift
fi^lSkr^ ^^ ^ ^^G^^ article, or of numerous articles, bccaufe, as the terra
Lookta is a genenci noun, it applies either to a fingle article, or to
feveral different articles.
ten!!^*'*^ If the trove property be of lefs value than ten Jsnnsj it behoves
be advertiied the finder to advertife it for fome days, — (that is, for fo long as he
amlonc^Y deems expedient,)-r-but if it exceed ten Ji'rms xr value, he muft ad-
tca^iw/fov vcrtifc it for the fpace of a year. The compile* of the HeJdya re-
marks that this is one opinion from Haneefa. Mohammed^ in the
Mabfoot^ maintains that the finfder fhould advertife it for the fpace of a
year, whether the value he great or fmall^ (and fuch is alfo the opi*
nion of Sbafei^ as the prophet has faid " the ferfon who takes up a
•* trove property niufl advertife it for a year^ — without making any
diftii\^ioft between ay?W/ property and a great property. The rea-
fon for ihe former opinion is that the fixing it at the fpace oizyear
occurred refpeding a trove property of the value of one hundred
deenars^ which are equal to a thoufandV/rm/; now ten Srmsj or any
tbiqg »bovc thai fum, are the fame as a thoufand dsrms with rcfycGt to'
the amputation of a thief's hand, or the legalizing of generation*
^ Ten ihrmt is die finallcft <lower admitted ia imrriage.
,wheiicc
Book XL TROVES. 267
whence it is enjoined to advcrtifc a trove property for a year ^ out of
caution ; but any ySxvx^Jbort often dirmi does not refemble a thoufand
dirtns with reipeft to any of thofc particulars, whence this point is
left to the difcretion of the finder of a property of that value. Some
allege that the approved opinion is that there is no particular (pace of
time, this being left entirely to the difcretion of the finder, who
muft advertifc the trove property until lie fee rcafon to conclude that
it will never be called for by the owner, and muft then beftow it ill
alms. All that is here advanced proceeds upon a fuppofition that the
trove property is of a lading and unperifhable nature : but if it be of a
perifliable nature, and unfit to keep, it muft be advertifed until it is in
danger of peitlhtng, and muft then be beftowed in alms. It is proper
to remark that the finder muft make advertifement of the trove pro-
perty in the place where he found it, and alio in other places of public
refort, as by advertifmg it in fuch places it is moft probable that the
owner may recover it.
If the trove property be of fuch a nature as that it is known that a trove of an
the owner will not call for it, (fuch as date-ftones, or pomgranate ^^f^^^^v^
ikins) it is the fame as if the owner had thrown it away, infbmuch converted by
that it is lawful to uie it without advertifement : but yet it ftill conti- his oWn ufe.
nues the. property of the owner*, as transfer to a perlbn unknown is
not valid.
If the finder duly advcrtife the trove property, and difcover the if the owner
proprietor, it is well : — ^but if he cannot difcover him, he has two l^^^l^^
things at his option; — if he chufe, he may beftow it in alms, becauie '^^^fJJJf
it is incumbent to reftore the property to the owner as far as may be iW oroperty
poflible, and this is to be cfFefted either by giving the a£lual property Ecp*h*for
the owner.
« That is to lay, although it be lawful for the finder lo ufe it^ yet die owner has a
*€btm upon him for the value.
M m a to
a68 TROVES- Book XL
to the owner, where he is difcoveredt or by beftowing it in alms«
fo as that a return for it, (namel/, the merii) nuiy reach the owner,
as he will aflent, upon hearing of its having been (b beftowcd: or if
the finder chufe, he may continue to keep the property, in hopes of
difcovering the owner and refloring it to him.
JJJj^*{^ Ir the finder of a trove property di(cover the owner, after having
beiowfdl u bellowed it in alms, the owner has two things at his option:— if he
«wiier ma/ chufe, he may approve of and confirm the charity, in which cafe he
S^X^sSl ^^^ <^^ ^^* ^ ^^ i becaufc, although the finder has beftowed it in
alms by permiflion of the law, ytt as the owner has not coniented
to his {o dcung, the alms-gift remains fufpended upon his confent to
it: as the/tfir^, however, becomes endowed with the property in
queftion previous to his confent, it does not remain fuQmided upon
the continuance of the ful^e^l * : (contrary to a cafe of fek fay an un-
authorifed perfon ; in other words, if an unauthorifedperfen execute a
fale, the validity of it depends upon the continuance of the fubjeft ^,
that is, of the article feld, becaufe the purchafer does not become en-
^^J^ dowed with it until ^^rconfent:) or, if die owner chofe, he may
fiom dM take an indenmificatkm from the finder, becaufe he hat beAowed a
property upon the poor without confent of the proprietor.
Objbctiok. It wouU appear that indemnification is not inoun*
bent upon the finder, as he bias beftowed the property in alms, with
the confent of the law,
Rbpltw — ^His beftowing it in alms, with the confent of the law,
does not oppofe the obligation of refponfibility, in behalf of the ri[^
oftheowner; in the fame manner u where a perfen eats the property
of another when perifliing with fiimine; for in this cafe lie
t nat ii, apon *t cofliiMMt af dit pfepcrcjr, «^
haadiarditMMr.
Book XI. TROVES. 269
denuiificatiaii, akhoug^ he be permitted by the law to eat aKother't
property in fuch a fitmtion; and ibaUbinthecaieinqueftioo.
^-Or, if the owner chuie, he maj take indemnificatioa from the/oi^, * <<"* ^
when, the trove property has perifhed in his hands,— becaufe he hu whom b W
taken pofleflion of the property of another perfimwithoat his coofent; — «owcd:
or, if the property be renuuning in the hands of the pauper, the owner ^^ tm
may take it from him, as he thus recovers his •OMti fnptrty* cWa tJSSL
Objictioh^— 'It has been already ftated that the pauper beoomes "^^^^
tadowed with the property freviuu to the owner's conient; whence
it would appear that the owner has no right to reffitutido.
R»LT.^-E(bWi(hmenr of property does not oppoie a right to
feiUtuUoos in tho fime manner as a donor is at liberty to refume lus
gift, akhoa^ the donee have become proprietor upon taking poflef-
ikn of it.
It it fandabk to feeofe and take care of ftrayed cattle; fuch u layariad
«M»,gMr/,orMMr/r. ii^ and 5%» maintain that where a per- SSIi*L!<
Ibaflodi ftrayed camdt or «ten> the de(ert«, it is moft eligible to 2|£*^*
leave ^htm, the ionngof diem bong abominable:— and concerning
the fieoAig of ftrayed Am^s there is the fime difterenoe of opiiuoa.
The argMMokof JMSdEI and5A^ is that %»% is mrigma/fy con-
neded with ttkiag the prapertjb of another, which is not allowable
doe^t Whne there it apprehenfion of its perifliing ifit be not taken:
boC where t trove properqr it of fvch a nature as to be capable of re-
pdfing beaftaof prqr» (fticb ttomi, who may repd them with their
bocntt or tmrn/t aaid imfis, who vot^ rqtd them wkh their Uooft
or their teeth,) there it little apprehenfion of kt perifliing: k k ftiU
however to be foipeacd that k «nff pcrifli, and hence k k declared abo-
• iMwIllM. TkisiidwiM«anBaiia(MMnli»dwMiii^MiltataMm
«ribM«i ksHbaMsaaf Mftter aaMcMUlMl
minflM^
zfo TROVES. Book XT
mlaable to Iccure it, and moft Inud&blc to leave it*^^ The argument
of our do^lors is that the animals in quedioa are irove property^ and
there is reafon to apprehend their perifhihg^ whence it is laudable to
fecure and advertife them, in order that the property may be pre-
fcrved, in the fame manner as the iccuring of ftrayed goafs is laudable
reT^fibicTo ^ccording to all. If, moreover^ the finder give fubfiftcnce to troves
ihc finder for of this dcfcription without "authority from the raagiftratc, it is a gra-
encc, ufilefs tuitous aft, becaufe of his not poflcfling any authority : but if he give
b'^orfe^irth^ fubfiftcnce by order of themagiftrate, it is a debt upon the owner, be-
jnagiftratc; caufe the magiftrate is endowed with authority over the property of
anabfcntce, for the purpofe of enabling him to a£t with kindncfsf
to the abfentcc; and the giving of fubfiftcnce is a kindnefs on fome
b^fi'f^ iJ^c <^c^**'0^s, as (hall be demonftrated elfewhcrc. If the queftion re-
muR direa fpecting the fubfiftcnce of the troves be brought before the magif-
hircSouifor tratc, hc muft inquire into the particulars; and if the troves be
thatjwrppfe, capable of htre^ (fuch as borfes^ ^amels^ or oxen) he muft order them
to ht hired out, and fubfifted from their hire, becaufe in this caic the
animals continue the property of the owner without fwbjcifting him
to any debt: (and a fimilar judgment muft be paflcd with rcfpeft to
or, if unfit, to fugitive flavcs:) — but if the troves be unfit for hlre^ (fuch ^s goafs or
the p*ncc re" fi^^fi^) ^^d it bc apprehended that, if the finder were to fubfift them,
tainedforthe ^^^ fubfiftciicc would cqual thcir value, the magiftrate muftdireft
owner; * *
them to be fold, and the price to be kept, in fuch a manner that the
troves maybe v/V/Wj^preferved, in their va/ucj becaufe the prefer vation
uniefs hc of thcm \xi fuhjiaficc is imprafticable. — If, however, the magiftrate
order them*a dccm it fit to give fubfiftcncc, he muft adjudge fubfiftcnce to be
whf h^ri 8*^^"» making the fame a debt upon the owner of the animals,— be-
ihat cafe a paufe thc magiftrate is appointed for the purpofe of exercifing liuma-
* This is ftnmge rcBfoning: it majr perhaps have rome reference td frtieJHnas\%n\
i. e. ai thcfr aninuilsfiem destined ffirlfi^ it is imft^kf u aiftfffft tf prevent tki* deftinj^
\ By the term kindnefi is here and dfe where meant a ive attention U the inureft cfthe
fartj evuerned.
nit?
Book XL TROVES. 171
iiity and kindncfs; aiid the giving of fubtiilencc is a kindnefs both ^«tH«ponthe
to the owner aiid to the^/r^r;— to the owner ^ becaufe his property
is thus prefcrved to him in fubfUnce; and to thtjinder^ becaufe the
fubfiftciice he furniflies is thus xnade a debt upon the owner. The c^e^^*^
learned in the law,, however, have fasd Jthat the magiftrate is to iflue ^JJ^*|^^'
the order for fubfiftencc only for the term of two or three days, in fimi^n
hopes that the owner may appear; and that if the owner do not ap-
])ear, he mud then order the trovei to be fold, becaufe to afford fub-
iiftence to them for a continuance would be to eradicate the property,
whence there would be no kindnefs in affording them fubAdence for
a long term (thatTS, for a term beyond three days,)-=— It is obferved, in
the Mahfoot, that the produAion of evidence is requifite,— that is, 2^""^J^?*
the magiftrate is not to give an order for fubfifting the animal, ex- ^*«cc evidence
ccpt where the finder produces evidence to prove that ** fuch an ani- trove.
** mal is a /rwr;** and this is approved, becaufe it is poflible that; he
may have obtained pofleflion of the animal by ufurpation^ and in a.
cafe of ufurpation the magiftrate does not give an order for fubfiftcace,.
but direfts the thing ufurpcd to be rcftored to the owner, except in a
cafe of Jepojlt^ which cannot be proved without evidence; the pro-
duftion of evidence^ therefore, is eflcntially requifite, in order that
the a£kual (fate of the cafe may be afccrtaincd.
Objectiok. — Evidence is not admiflible without an adverfary;
and in the cafe in queftion there is no adverfary; — how, therefore,
can evidence be admitted ?
Reply. — The evidence, in the prefcnt cafe, is not required for
the purpofe of a judicial decree ^ lb as to make the exillcncc of an ad-
verfary a neccffary condition,
—If the finder lay ** I have no evidence of the animal being irthe finder
** with me as a /rw^," ftilf as it is apparent that it is a trove, dc^^thTw.
the magiftrate muft fay •• fubfift this animal provided your decla- JiencTiS'
** ration be trueT and then, if the finder's declaration be true, ^ «<>«"*•-
he will have a claim upon the owner for the fubfiftence, but not IhTvcwSlJ
If he be an u/urper. It is here peceflary to remark that what is tiit!''*"*^
advanced above, that " the magiftr^c muft adjudge fubfiftence to be
4 ** given,
t7« T JL O V £ S. Book XL
tw §u» •• pven, making iLe fime • debt upon the owner of the aninnls,**
•yaT^iki phiiily in^liet that Che finder will have no claim upon the owner fbr
uSSJUi,^ fttch fttbfiftence» vpoa hit appearing at a time when the trove hatnot
wM**' jfct been ibU, unle^ the mapftrtte, in hit decree, SxtCt that ** he
iii/iWySh *' Aall have iiidi a daim upon him;*^—- hot if the magiftrate fliodd
MScr.dMtdv '""'^ '^^ ^^^ rendered the Ibbfifience a defa» upon the owner, the
'V*: finder would have no claim upon him fi>r it: — this it approved doc-
1/ trine, Sone figr diat die finder has t daim upon the owner figr the
Ibbfiftenoe, where he fumiflies it hjr order of thft magiikate, whether
the maplkntt may have explidtfy declared dw fiune to be a ddit
vpon the owner or not.
UvoM the owner i^pearing,. the finder is at liberty to detain die
MMltiMM fgffiff^ xnlSi he pay him for the fvbfifience; becauie the finder has
mmmmfM pfffcrwed die trove, and kept it alhre, hf fahfiftmg it. The cafe is
*• flu. ihiwfiwe the fiune as if the owner had cbtiined hb ryAr iffnfnp
*^' thfotti^ dM hnder; and conlequendy the trove refembles an ardde
affiles thittis, in die fiune manner u the ieller b entitled to detan
tht artide AM until the pnrchaier prodoee the pcioe, fi> aUb» die
findsr is eadded to detun the trove until the owner prodnce an eqm-
irilaat fiir die fabfiflence. The finder, moreover, reicmbles a perfim
whn ypwhwids and brings backs fugitive flave, that is, in the fiune
aiaiiMrasdiat peribnb entitled to detrin die flave on account of a
wcompmfe (fince it may be fiid that Ar Aer pr^kroU Aim) ib alio,
tht finder b at Uberty-to detain the trove on account of the fiibfift-
%kmm, oiee to be afirded to it, finoe he has thus prderved it alivei Itb
Sb?S/^ lobeoUerveddiatdiedebtlbrfubfiAencebnotexdngiiifliedfaydie
{ffg^ dicwnftanoe of the trove periihing in the hands of the finder, d|^
7iMrii!?ii hbdctcntioacfit: bntitbexdnguidiedby thetroveperifluminhb
^**"^ hands ^1^ detmtion, becauft hfJmmimk b plaoed in die fime
Hale as a/fa^, and tt debt b exdngiiiflied by the deftruAion of the
pledge, ib in die fime manner die debt IbriiibfiAMcebfttinfnilhed
by the tiovtperifliing after dcteatioo.
TftoTii
XI. TROVES. a;j
Trovbs o[/m^9i/ articles and of mlawfml^xc the iamet in thb ?!^^*'*
refpedt that the finder is to advcrtife them for a year. Sbrfn coo- SdSimis
tends that an mn/mvfit/ article is to be advertifed until the owner ap- HiniS!rfj
pear, becaaie the prophet has declared •* jf irwe 9f m foubiddsk •'JJ**'^
^< thing is not Imvfni to nny but the moonshid/* (that is, the c/nfwumt MbfUmn
or the oumeri) — ^and it thus appearing that the trove b unlawful to /***'^^***'
any except the owner, it is indifpenlable that the finder advettiie it
until the Qwner appear, and he reftore it to him; for it rouft not be
befiowed in nAm. The arguments of our doOors upon this point are
twofold: — ^PiRST, the prophet has £iid, ** AJtvertift tbt trove fy its
*^ marks^^ mni then iontinne to adoertift it for m ytmt^ in which no
*diftin£lion is made between a larjjfni article and an nnfavfutz^^-^ii'-
coNDLY, the unlawful article in queftion is a trove \ and if, after the
expiration of the term of advertiiement, it be beftowed in alms, the
owner's right of property in it ftill continues in fercef ;— and fuch
being the cafe, the finder may beftow it in alms, after the expiration
of the term aforefaid, in the lame manner as any other trweu—^
With refpeA to the iaying quoted by Shaft! ^ the expbnation <if it is,
that a* trove cfz forbidden thing is bwful only to the Moonfiid^ (that
is, to the advertifcr^ ocfajon who makes noti/lcation cf tt^') and that
it is not lawful for any peribn to take it for his own ufe|. A tiove
€iz forbidden thing is particularly adverted to in this fiiying, becaulb
fuch a trove muft be advertifed, although it appear to be the property
fdjlrangen^ (who are contmually pafling through the eoontry,) and
if it were not for (iich an injundion, people might apprehend thit, tl
• Literalljr, « oJhnrtifi ihi%Mer mass fiotoioit^ the ftvwb oniilt mWQf'oni
« 'iImi odoee^ At rwoiftjor o vt At.**
4 AskelilhiiachtaeriiftiMioa. {Ut^oh^)
X The mlhtoeoo ksia larw CMjr apoa dit mw la wnM tbt lifai MoeK^pei is la to
a4AriptioawlMisn«iitVisll^t0dit%6rarilis>fidbr. «l«^if iatoskia*s/ir«fr
kok^wAUmnfo^tk^keke.
Vol. II. N n beinj
174 TROVES. Book XI. ..
being the property of ftrangcrs who will probably never return to de-
mand it, the ad vert ifing is ufelefs.
of^^cwc^* If aperfon appear, and lay claim to a trove, it is not to be given
nuftprovehis tohim Until hc produce evidence. If, however, the claimant dcfcribe
a(fn«/boik t^ tokens of the trove, by mentioning the weight of the dirnuy (for
"veredithim ^"^^^^^0 ^^^ ^^® P^^^^ "^' which they arc contained, and its tying, it
upon his de- may be lawfully given to him: — ^but the magiftratc is not to u(e any
tJuMoi \u compuffion upon this point. Malik and Sbafei allege that the magii-
h" '**ver*the ^^^^ ^^V ^^^^ ^^ fiudcr to givc up thc trovc ; bccaufc he merely
nuginrate difputcs With the claimant the poffcjjion of thc trove, and not thc right
a?u°Kiid«N ,^f^^^^y V^ i^» and fuch being the cafe, a dcfcription of thc tokent
is made a condition, aj thc parties difpute concerning the pojfejion^
but the prftdudion of evidence is not made a condition, as they do not
difpute concerning the right of property. . The argument of our doc-
tors \s\\\^t pojfefion oxfeiiim is a right which may l)c defirable, iu thc
(kme manner as aAual property in a thing, wherefore no perfon is en-
titled to plaim thc fjfejfion of it but tlirougli proofs that is, through
rjidence^ in the fame manner as no one is entitled to claim the proper//
in it, butthrottgh evidence: — but yet it is lawful for the finder to
<urrender the trove to the claimant, upon his defcribing the tokens,
becaufe the prophet has faid ** If the owner appear y and defer ibe t hi
'* thing ij^hkb contains the trove^ and the quantity of' the contents y kt
** tbefndtrfurrenderit to bim\^ — that is, it \% alloraahle to furrender
it to him; for the ordinance here is vazx^y oi ^ permijftve nature, fince
it appears, in the Hadees Mafhboor^ that the claimant mtifi produce evi-
dence^ and the defendant mujifwear^ — which evinqcs that thc com-
mand contained in this iaying is oi z permijffivi and not of an injunilhe
nature, otherwife it would not be incumbent upon thc claimant to
produce evidence.
The finder When tbc claimant defcribes the tokens of the trove, without
a"tit)ve upon producing evidence, and the finder furrenders it to him, it is incum-
5 ^^
Book XL TROVES. 275
bent on the finder to take (ccurity from him out of caution* ; and cotx^ dcfcrjDtion of
ccniing this point there is no difference of opinion (according to the Ra- withour evV
wayei Sabeeb) becaufe here the finder requires the fccurity for hmfelf\, JJjj^e fccuH?/
This is contrary to the cafe of (ccurity required in behalf of an abfcnttt fr«n the
beir\ — that is, where the Kixet diftributes the effeAs of a pcrfbn de-
ceafed among fuch of his heirs as are preient, — in this cafe there is a
difference of opinion concerning his requiring fecurity of the^r^n/.
heirs, in behaUf of an djtnt heir, provided fuch flunild hereafter ap«
pear, -*-for, according to Hancefa^ (ccurity is not required in behalf of
the abfentec heir, — but according to the two diibiples (bcurity is (b
required.
If any pcrfbn claim a trove, and the finder verify his claim, yet The finder is
fome (ay that the Kdzee muft not compel him to furrendcr die trove; l^^t^fu*
— limilar to the cafe of an agent empowered to take pbflcffion of a '«««J«r the
depofit; in other words, ifany perfon plead that ** he h an agent though hc'ac
" empowered to take poflcfHon of a dcpolit from fuch a perfon/^ tVc^rilSifof
and the truftce vtnfy his declaration, yet he is not compelled to fur- thcdanmnt.
, render the Jepo/it to the agent ; and fo here likr wife. Some, on the co.i -
trary. (ay that compulfion :nay be ufcd, becaufe in the cafe in qucf-
tlon, the owner is a perfon unkr;own, whereas, in the cafe of a
J^po/it^ the owner of the d(*po{it is a perfon who is knowHy whence the
poflcflbr cannot be compelled to furrendcr it to the agent, he not being
the owner.
The finder muft riot bcftow the trove In alms upon a rich perfbp, A trove can.
becaufe the prophet has faid, *• If no owner of a irove property appear^ ^ -^ ^^ *
* Left another pexfon'lhouU afterwards appear, and prore the trove to belong to htipj
by eviJrnce*
t He takes the fecurity in his own behalf, and not in behalf of any future poifible
claimant, who, if he Ihould appear, has rccourfe to him for reftitution.
N n 1 -f BESTOW
S76 TROVES. Book XI.
*
iifM • wk^ u s£STOW XT IN alms;** — and it is not lawful to beftow alms upon
an 0fuJtnt perlbn ; a trove, therefore, relcmbles Zm/Ut.
MTcn the Ip thcjhijrr be in opulent ctrcumftanccs, it is not lawful for him
immy^M' to derive any advantage from the trove. SJ^ci affirms that this » :
mi iua Ut lawful, beeaufe the prophet tudtoTit/Mee^ who had found an hundred
dgmirSf *^ If the owner cmu^ fwmnder the tme to bimi but ifmU^
^* nutke mfo cfiti^^znA yet Tewdieo was in opulent circumftanoes.
Moreover, the uie of the trove is allowed to the finder, where he
happens to be in indigent circumfbtices, only in order that this per-
miffion may be a motive to him to take up the trove, in fuch a manner
that it may be preferved; in other words, the finder, in hope of this
advantage, will take up the trove from the ground, and it will thus
be preferved from perifhing. Now, the foor and the ricA are both
aUke in this particuhr; and oonfoiuently, the finder who is rich may
hwfuUy convert it to his own uiot in the £ime manner as one who
b/MT. The argument of out dodtors is that a trow is the property
clttmotbcr^ and hence it is not allowably td derive an advantage froa»
it without his permifiion, beeaufe the pafiages in the ficrcd writings
whidi prohibit the enjoyment of anothcr^s property ^r^getier^ ex*
preflfed.-— The ufe, moreover, is permitted to the /sor, (contrary to
what Mohgy would fuggeft,) in coniequence of the faying of the
prophet already mentioned, andofthe opinion of all the doftors; and
therefore, any others than thole remain under the or^ptuJ predica-
meott which is an mUbitkm of the v^t —With refped to what 5;&^
lurges, (that ^ the uie of the trove is allowed to the finder whero he
** happens to be in indigent circumfbnoes, only in order that this
^ pemiffioa may be a motive to him to take up the trove, S^ that
<^ it may be preferved^ ia which particular iSbitricb and the /iar are
«^ bothalike,**) — we reply that this reafiming is not admitted; beeaufe
a rkb perfbn may ibmetimes take up a trove fcpm the ground under
the idea that he may himlelf poflibly beooone tf^ttper within the term
profirribed for advcrtifing; and a poor peribn, on the other hand, may
ibmetimes.
Book XL T R O V B S. %^^
ibmetimes negleft to take up a trovct under the idea that he ma/,
poflibly, become rich within that term; what 5*4^1 urges, thereforCt
under this idea, is no ground of argument. With reipeft to the in*
Aance adduced of ITtc/tiC^f it is to be confidered that he converted the
trove to his own uie by permiflion of the ibte; and the uic of a
trove, bjr permifiioo of the ImSm^ is lawful
. If the finder of a trove be Mor, he need not hefitate to make uft Ttela'tr^ir
of the trove^ fince in fuch a dilpoial of it a kindneft is performed vMAtrnM
both to the mmur and to the^^ikrf .r— Upon the fiune principle, alio, 2|^^Jj[f
it is lawful to beftow it upon any a/Arr poor perfim : thus if the finder ^"^^^
be tkb^ and his parents, children, or wives /tor, he may beftow tho Mtp!wiSL
trove in alnu upon them, for the reafbn above alleged. *'***
• After hnriof diUjradvmifed it, as bcfoce «i«asd.
t BecMfeteAdkrthttsobtMiisaralicrftemMswantt, aa4ihcowiitrlias Atmrit
erikechark7.
UEDJrJl
( »7» )
H E D J r A.
I
BOOK XII.
Of IBBJK, or the Ahfconding of SLAVES,
AN abfconded male or female flavc is termed Abth^ or fugitive \
but an infant flave, who wanders away in confequence of want
Diilin^ion
between a
/ugiiivt flave
^^^/^^^ of underftanding, is termed Zdlj ox ftrayed^ and not fugitive.
It is littdable The apprehending of a fugitive flave is laudable with refpe£l to
Tfi^iUvc"^ thofe who are enabled to apprehend him, becaufe this gives . life to
fi*^i the owner's right, fince a fugitive flavc is the fame as one who h
dead with refpcft to his owner. With refpe£l to frayed flaves,
fome (ay that the taking of them is alfo laudable ; but others, on the
contrary, maintain that it is laudable to let them go, (ince it is moft
probable that fuch a one will not wander ^or, and confcquently, that
the owner will recover him*.
* Without b^ing fubjecled to the cxpence of a J$il^ or reward, Tor the recovery of
him.
The
Book XII. ABSCONDING, 279
The })erfi>n who fcizcs an abfconded (lave muftfering him bctbrc ll\^^^^^^^
the Sultan*^ he not being of himje/f equzl to the charge of him: forethrStti-
contrary to the cafe of a trme^ which any pcrfon is equal to the care ImpViifi^him^
of. And upon this perfon delivering the ilave to the Sultan^ he [the
Sulian] miift imprifoti him : — ^biit if a perfon deliver zJirayeJ flave to
the Su/iaHf he muft not imprifbn him ; — becaufe no confidence can be
phced in ^fugitive flave, as it is to be apprehended that he may again
abfcond : contrary to one who is otAyJlrayed.
If a perfon, having feized and brought a fugitive flave from the The reOcm
diftancc of three days journey, or upwards, deliver him to his maftcr, fllve"^**!'^
it is incumbent upon the mafter to pay that perfon the ^arf/, or re- titled to ajt-
ward, which \% forty dirms. And if he have apprehended and ^l^^^^^^
brought htm from a diftance /6or/ of three days iourncv, he is entitled ^^'J^f^wpro-
to a proportional recompence. This is upon a favourable con (true- diruncefron
tion. Analogy would require that nothing whatever be due to fla^*^,-,'*^*
him, except wherc.it has been ftipulated before-hand; (and fiich '^^u
is the opinion of Sbafei\) becaufe the perfon in queftion, in feiz- ]hj57ooV^ii;5;
ing and bringing back the flave, has a^cd gratuitoujly. Thus the cafe
refcmbles that of zjirayed flave; in other words, as nothing is due
to a perfon who reftores a frayed flave to his maftcF, (becaufe of
this being a gratuitous aft,) fo in the fanae manner nothing is due
for the fugitroe flave where he is reftored to his mafter, for the
fame reafon. The reafons for a more favourabte coaftra£tion of
the law upon this point are threefold :-^pirst, the companions all
agree that a reward is due ; fome of them, however, contend that this
reward isybr/y dirms, whilft others fay that it ts./^than.forty; and
hence it is that we txy forty dirms are due in a cafe cf diftance of
three days journey, and iefs than forty, where the cfiftanet \%Jbart
of three days, in order that the different rates [cftabliihed by the
• Bythistcnnkiialwa|ttok«iidcfitood|be/#wf?f^^^
companions]
iSo ABSCONDING Book XIL
companions] may be thus reconciled :^-h»condz.t, if a reward be
made incumbent, men*s property will be fecared, becaufe people will
feize fugitive (laves and reftore them to the owners, in hopes of the
reward; — for the perfonnance of ads merely from a motive of cm-
fcience (eldom occurs in the world, more efpecially in the pre/tnt
times: — (the rating the premium at forty ^Srms^ or kfs^ is grounded
upon oral teftimony *; but no report has reached us concerning^rtffA/
(laves, and hence, in their cafe, nothing is declared to be due :)—
THIRDLY, in the inftancc of ^r^yr^ (laves the ncce(fity of con(erva-
bat no re. xxovi is lefs urgent than in the c^lh of fugiihe (laves, becaule a flrayed
tothercrioier flave does not conceal himfelf^ — whereas a fugitive (lave endeavours to
2^ Ae^' j^cep concealed ; a/ugiihe (lave, therefore, is edentially different from
zJlraytJ (lave ; and hence a premium is e(labli(hed in the cafe of the
former^ and not in the ca(e of the latter. As to what was before ad-
vanced, (that, '^ if a peribn apprehend and bring back a fugitive
'' (lave, from a diilance (hort of three days journey, he is entitled to
** a proportional rccompence,*' — (it is to be obferved that if the fer-
vice be calculated at the rate of value of the efhblifhed premium,
there will be thirteen dirms and one third of a dlrm due for each day
* invariably, which is what fome have, alleged. The heft method,
however^ is to refer this point to the diicret'ion of the magiftrate, or
to leave it to the parties themfclvcs, (namely, the reftt^er of the
(lave ar)d the jowner^) in which cafe the reftorer is entitled to what-
ever fum they may agree upon.
Rale where If the value of the fugitive (lave hcjhari of forty dikus^ the
th^SieVSif owner muft be diredcd to pay tathe rcftorer thirty-nine dirms, pro-
ihortof forty y^^j he luve l.izcd and brought him back from a diftance of three
'"^' days journey. — Our author remarks that this is the opinion of Mobam-
fneJ.-^/ikoToifaftnsimtdjns thai he is eiuitlcd toj/c/V/ DiRMs, bc-
• This phrafe is applied (in Jaw iangoag^) to sny tMng which is not fiNtoded eldier
upon the text of the Kiran^ or the ordinances uf the prophet.
caufe.
Book XII. of Sh A V ES. 281
caufe, as the rate is fo eftablifhed upon the authority of the facred
writings ''^^t it cannot be Icflcned; whence it is that if the rcflorer of
the flave and the owner were to enter into a compofition at a rate
abwt forty D1RMS9 it would be unlawful;— rbut if, on the contrary,
they agree (or fiwer than/orr/, it is lawful, becaufo as the reflorer is
at liberty to decline accepting oftf;ir/ pari of the forty Jirms^ it follows
that he may lawfully accept of Icfi than that fum. The argument
of Mohammed is that the defign, in cAabliOiing a reward, is to excite
and encourage men to rellore fugitive flaves to their owners, m order
that the proprietor may recover his property ; and hence ons dirm is
deduced, in order ih^lfontc part of the fugitive may remain for his
maftcr, and that the advantage of inAituting a reward may be afccr-
tained -f-.
Am-Walids and Modabbin arc, with refpect to the reward, Arwardii
confidered in the fame light as abfolutejlaves, provided they be reftored. //^/.^Jld
before the demilc of their owner, becaufe flavcs of the above defcrip- ^^?*{:
tions are a /r^^^r/y to their owner, and the reAoration of them is a httthtttl'S.
vhif canon of them with refpeck to him; the reward, therefore, is S^dlMiT'*''
due • — but where they are reftored after the owner's deceafe, no part
c 'the reward is due, becaufe Haves of boih the above defcriptions are
free upon the demife of their mafter : contrary to the cafe o^ abfotutr and for a^/s-
(laves, fince they do not become (tcc upon their niaftcr's death,, for Sugl^ o^ey '
which reafon the reward for reftoring them isdue, although they be benoirenorrd
reftored after the mafter*« deeeafe. death.
* This apparently contradiAs what was before mentioned^ that tbt rating rftbe primlmn
at fifty DiaMt, 9r left, is grmndtd trftn ORAL TESTIMONY: the 0ral t^immj however
relates foldjr to the addhional words, tr kft.
t The docirine of M9l>itmmii^ as ftated in the cife in queftion, is according to the Pirfi§H
verfion of the HM^m. The tranflitor, conniving it his duty to adhere clofely to his text,
has not ventured to alter it. The piflage, however, is much moce clearly exprelled iii
the ArMi copy, and in a way to which tiie reaiboing tUM^hanmei is diredly applicable
(which is not the caic Arr/:)— >Ic fimply fays <* If tite valuff the Jtave hi Jbvrt rffirty
DIRMS, ht tbi rtjtvnr ht decreed the valtu^ exetft a dirm.**
Vol. 11. O o If
aSi AFSCONDING Book XII.
^*^*^*iii* If thc/aihery or the Jon of the owner, living in the fame &mily,
reftoriog a reftore a fugitive (lave, no reward whatever is due; (and the fame
n^T^jm' ™^^ obtains where, of a hufband and wife, either reftores a fugitive flavc
(living ta the to the Other;) becaufe, it is cuftomary for fuch relations to z& gra-
crtoa^^iii/ t4jitoufly towards each Other.
TKedettkor l^ ^ fugitive flave ab(cond from the hands of the perfon who ap*
the^o^d* P^^^^^ ^^> ^^ ^^^ whilft in his poflellion, no md^tnnification
tile pef«i» whatever is due from htm to the owner, becaufe the (lave is a trufi
rim does^Mt *^^ ^^ hatids. This, however, obtains only where the perfon who
r^fibUi'** took him has called people to witnefs that ^^ he feized fuch a flave,
" with a view of reftoring him to the ower," — (in the manner al-
ready mentioned in treating of troves.) — In the calc here fuppofed,
no re\yard whate^ver is due to the perfon who apprehended the
flave, becaufe Ac ftands in the predicament of zfeUer^ and the mafier
of the flave ftands as a purchafer\ (whence the former is at liberty to
detain the flave on account of the reward, in the fame manner as a
feller is at liberty to detain the article fold, until he receive the
bttttkeukcf P"^^ 0 ^ ^^ being the cafe, no part of the reward is due to the
»«B««^«* perfon who Ukes the flave, in the fame manner as no part of the
price is due to the feller^ where the article fold perifhes in his hands..
The reward ^' ^^ mafter of a fugitive flave emancipate him on the ihfUnt of
tannoi be his being brought to him, and before the perfon who took him has
wm^tft^mg delivered him up, he is confidered as being feized of the flave at the
tb^ kilmor n'^'^^' of emancipation, in the fame manner as where the purchafer
lefloratioD. . of a flave emancipates him before feizin, in which cafe he is contU
dered as hamg taken pofleflion of him on the moment of emancipa-
tion ; and upon the fame principle, if the mafter of the flave^// him.
to the perfba who apprehended him, he is. confidered as bdng feized
of him on the inftant of fale, on account of his thus Securing to him-
(elf a lecompencc for the flave in tfae/irM^r of him.
It
BookXU. ^slaves. 283
It is incumbent upon the peribn apprehending a fugitive (lave to ""m aker
aittidecbfe*
call fome perfbns to witnels that ^^ he takes this flave in order to re* »
«« flore him to his raaftcr,** It is moreover to be obferved that it ^^^1**3^^*
is incumbent upon the taker (according to Haneefa and Mohammed^) iUvc»
thus to call witnefles at the thhe tfbis taking tbejlave\ infbmuch that ^r lie & •oe
if a perion reftore the flave to his mailer nvitbtnit having called people cnddedtatlM
to witnefi at the time of ieizing him, he is not entitled to any reward $ '^^^"'^'
becaule his negle£ting to call witnefles argues that he has taken the
Have for bim/e^i and the cafe is coniequently the (ame as if a noan were
to purchafe the flave from the perfim apprehending himt— -or to accept
of him, from the fiune peribn, as a gifty—- or, as if the flave had defecndcsd
to him from the £une*peribn by inheritance,— «nd this man, (b pofiei&ng
him by purchafe, gift, or inheritance^ Jthen refbre the flave to his
owner, in which cafe no reward is due to him, becaule he here re«
flores the flave to the proper owneryor his &nm advantage i in other
words, in confequence of getting pc^eifion of the flave he becomes
refponiiUe for him, and by returning him to his owner he is dif-
charged from the rerpoofibility ; his returning him, therefore, with
a view to difcharge himfelf from refponfifaility, is in h)6t returning
him with a view to his mm advantage: no reward, therefore, is
due to him,— unleft, at the time of purchafe, he had called fbme
perfons to witnefs that *^ he purchafed this flave with a view to re*
*^ fbre hira to his owner," in which caie the reward is due to him *
but fltit purchafinr^ in this iiiffauKe, is coiuldered as having wStcdgra^
tnitmjfy in paybg a price for the (lave *•
Ip the fugitive flave be infawn^ the reward for refbring him is The itwirj
due from the perfon detaining him in pawn ; becaufe the reflorer has ^tiw^iLi-
given life to the property involved in the flave by bringing him back; ^^^ ^^ n
and the property involved in him is tl>e rigbc of the perfon to whom /Tll^ ^
^ And eonfeqacndy, Ae purchaier has no daim upon the proprietor for the priu He
haipsid.
Oca he
284 A B S C O N D I N G Book XII.
he is pawned, (ince it is only through means of this property that he
can recover what is due to him: the reward, therefore, is due from
the pcrfoii who has him in pawn, — and this whether the flave be re-
Aored during the life of the pawner, or after his dcccafe, becaule a
contract of pawn is diflblvcd by the deceafc of the fawner. This is
where the value oixhc flave does not exceed tlie debt of the pawuer:
but if the value exceed the debt, the reward is due from the peribu
who has him in pawn, to the amount of the debt, and the remainder
from the pawner^ becauie the right of the creditor who receives a
pawn extends only to what it involves. The reward, therefore, is fub-
yA to the fame rule with the price of medicine^ or quittance for an
ofience;— that is to fay, if a pawned flave fijl fick, arid medicine be
purchafed for him, the price for the medicine is due from the perfon
having him in pawn to the amount of the debt involved in the flave,
and the remainder from the fawner ^ where the value of the flave ex-
ceeds the debt;— *and in the fame manner, if a pawned, flave commit
an o6fcncc, it is incumbent upon the creditor who has him in pawn
to pay the quittance of offence to the amount of the debt involved in
the flave, and thus rdeafe him, the pawner paying the remainder;
and the fame in the cafe here treated of.
Cafecfafu. If a furtive flave be involved in debt, the reward for appre-
h^/1^ hending him is due from his owner, where he chufes to (Ufcharge the
^'- debts: but if the owner do not chufe this, the flave is to be (old for
the difcharge of the debts,— the reward to be previoufly paid out of
the price .for which he is fold^ and the remainder afterwards diftri-
buted among his creditors; becaufe the reward is an expence atten-
dant upon the right of property i and the right of property in the flave
reCemblfs tfufpended^vof^y^ as it is held in fufpenfe between two
parties; (flnce, if the mafter chufe to defray the debts, the right of
property xt^ with &>/!,— or, if he ^t^ct felling the flave, it refls
with the creator s\) and the right of property thxis remaining in fuf-
penfe, that which is an expence attendant upon the right of property
4 ftuunely
Book XIL s^ S L A V £ S. 285
(namdy the nwari) alio remains in fufpen(e:— the reward, there*
fore, is incumbait upon him in whom the right of property reds.
If a nude or female fugitive (lave commit an offence, the reward for ^*["fl*^^"'
apprehending is incumbent upon the mafter, provided he agree to pay Cable to fine
the FUdteyaJaOSyat^ or quittance of oflfence, bccaufc the advantage '^*"®^*""*
of the flave refults to his mafter : but if he prefer furrendM-ing him t6
Ac party- aggrieved, (or avenger of the offence,) the neward in this
cafe is due from the party to whom the advantage of the flave accrues.
If a perfon make a gift of a (lave to another, and the other take Caftof axiyi-
pofleflion of him, and the flave abfcond from the dom^^ and a third i^f£^'
peribn feize and reftore him to the donee^ the reward is due from the ^*^«
dofue although the dfm$r refyme his fliare from the donee after reftor-
ation; becaufe it is not in coniequencc of the reftoration to the donee
that the advantage of the flave accrues to the donor ^ [after refump-
tion,2 but rather in confequence of the donee not having difpofed of
die flave ia any way after reftoration,— lince, if the donee had (b dif-
poied of him, (by mamtndffion^ faie^ or. fo forth,) the refumption could
not have beoi tSkBitA.
If the mafter of a fugitive flave be an Infant^ the reward is due TkegMi^m
from his property, becaufe the reward is an expeiice attendant upon J^^lJuS^,
the rig^t of property. If, however^ the reftorer of the flave be the noccmitkdto
infint** purJSem^ no reward whatever is due to him, becaufe he is k!tSSSg%
matmger of the infant's coiicems, and confequently it is hh-duty to wsW^^efc'^.
feek after and recover the flave* In the fiime manner, al(b, if an-^r*
fAan be reiideot in any pcrfen^s Amtly, and thb peribn ieize and re-
ftore a fu^ve flave bolong^ig to the orphan, no reward whatever is
due to him, as it is his duty to ieek for and reftore the flave. In the
iaaoe manner, moreover, no rewand b due to the Sultan where he.
reftoce^ 1 fuptive fl«re to the owner.
HEDArj
( ^86 )
HE DA r A,
BOOK XIII.
Of MA FKOODS,«r MISSING PERSONS.
IMbutioaor ^^yTAFKOOD, in its literal fen(e, means lojl tnd/ot^h/ rfur.
*^fl^^ jSjL In the language of the law it fignifiesiperfbn who <U£ippearSt
and of whom it u not known whether he be living or ind^ or where
herefides.
Wlm ftpcr« ly a peribn difappear, and it be not known whether he be dead
^^i^dieJCf- w ^^t ^ where he refides, the KSxa muft appomt fome peribn to
Mjrmiift «H look after his property, and to manage his affidrs, and mainUm his
Mmai^lS rights; becaufe the Ji^^ is appomted for the purpofeof attending to
^'^^ the iiiterefts of all fuch as are unable to attend to their own concerns ;
and as a wiJUing per/on is of this defcription, (whence be ftands in the
fame predicament with an irfant or an ideot) — it is for his intereft to
appoint a per(bn to look after his property and manage hb afiairs.—
By what is above fiated, that ^^ the peribn appointed by the Kd%ee
•• ihall
BooKXim MISSING PERSONS. 187
•* ihall mamtaiM the rights of the miiling pcrfon/* is meant that this JjJjJ^^J^
periba (hall take poileflion of all acquiikioas ariling to the mi^g per^- takcBoftfiM
Jm from his tenecneots, lands, oreficfts^ andalfo of fuch debts as i^,SStg
are acknowledged by his debtors; — and that he (hall alfo profecute toUmi
ibr debts owing in tonfequence of contrsAs entered into by bimfelf^
and* which are diluted by the debtor, as the rights of the contraft
appertain to himt he being th^ amtra£ler: — but he is not to profecute J|^^"*^
to account of debts owing in confcquaite of any contra^ entered S^mT
into by ihtmi^ng per/an^ and which are difputed by the debtors; nor **j^
can he profecute for the miffing perfm^% ihare in lands or eJeSs^ in the ^ ^i^^
hands of a third perfon, who difputes the fiune; becaufe he is neither
the frincifa/^ nor the dtfut/ of the principal, being no more than
merely an agent /or Jtixin on the part of the K&zie^ who is not em-
powered to profecute, according to the united opbion of our three
doQors; — im their only difference of ofnnion is with reiped to an
agent for ieizin appointed by the proprietor himfelf, in a cafe of debt,,
whom Haneefa holds to be empowered to ptofecute, whereas the
twadifciples deny him this power. — The reafon of this is that if it
were hwful for the Kdue\ agent for ieizin to profecute, and he wece
to profecute accordingly, and the debtor to produce evidence provm|;
that the mffingfcrfm had already received the debt, or di&harged it,
the KS%u muft neceflarily pais a decree accordingly, and this would
be a decree againft an abfentee, which is unlawful-— It is not lawful
for him, therefor^,, to profecute, except where the K&ue is of opi-
nion (with the fed.of 5'i&^/,).thatit is lawful to pais a decree againft
an abfentee, and he ^direfts accordbgly, in which cafe it islawful^
lijecauie a decree is of force where it is pafled in^any cafe concerning
which, there is a diftemnce of opinion f •
Objection.
• On bdudf of the Mafkmiw nuiEhg perfba-
t Tbat ii, where tht JCIsw ntj happen to dtfem in epUkaon fiom tbb Hui»^
koBMt. The ArMt copjr fiflipl]r. 6ye «" ia nhich stfi it it Umfid^ hem^ ik KJi^
^misM fiffm Juff^ii u hi tiffijii rfj^tmeutjmi barmd in th fiAW.** W^it
hcrv
iM MISSING P£R SONS. BoonXm;
Objection.— The point upon which the difl^rence of opinion
rcfts^ on the prefent occafion^ is the decree it/elf i and hence the ctfe re*
quires that the validity of the decree be fufpended upon the warranty
of another /iCtfJsr^*.
Reply. The decree itfelf is not what the difference of opbion
refts upon in th6 prefent infbnce, but the caufe of the decree^ name*^
ly, the evidence^ the pomt of difference being, merelyt whether evi«
dencet where there is no a£tual profccutor, amounts to proof ?— and
where the K&ee is of opinion that the evidence amounts to proofs
and directs accordinglvt his decree is legal and valid.
n^ ^t — It is to be obferved that, if there be^ among the effe£ts of the
Mtt!^% * mtfling pcrfon^ articles of a perifliable nature, (fuch u fruity and
miift be ftM; ^^ ^^^y^y^ ^^^ y.^^^ ^^^ ^^^ ^^^ . becaufe, i» the prefervation of
them both xvifubfiance and in effeR is imprafticablet they are to be
irat mpc diofe prcferved iti effeH. But he is not to fell any articles not liable to perUh,
pcriihaUtf. dther on account of fubiiftence, or for any other purpofe ; becaufe the
Knee is invefted with authority, with refpeft to an abfentee, for the
confervation of bis property^ and hence it is incumbent upon him to
preferve it \nfubfiance where that is pra£lticabte.
S^A^nce Xhe K&xee is to give fubfiftence to the wife and children of a
ferMtOtttof miffrngperfm out of his property. This rule is not reftrifted to his
the j^i^^ wiwiif/&i/^ children^ but extends to all related to him in the line of pa-
and dkiUhnr tcrnity, fuch as the father, the grandfather, the ibn*s fon, and fb
^>;'£'w forth; for it is a rule that every perfon entitled to a fubfiftence from
^^thlMMt '^^ property <rf* the miffing perfon whilft he was prefent, independent
admce.wm of an order from the Kdzee (fuch as his infant children, and adult
TSSSm^ daughters, or adult fons who arc dif?Med) muft in his abfence be
• kcreadvtncedsirardsaftrikiiig inihiiccortlieiMWcrora JEiscr,anddiebticiideanawed
to him in ptfing his decites.
« Bemle thU J»m bdng bimtUf arcpfdentativeorfbsJU;Mf « "^^
fee, aadconfequcndjB party coAcemMl in the decree^ eumot cany it imo jeSca» mdiA
out fiich amhoricf*
fumiihed
BcocXIIL MISSING PERSONS. l8^
fomiflied with a fubdftence, out of his property, by the Katee: —
but to thoic who, wbilft the mifling perfbn was prefent, had iio
right to fubfiftence independent of an order from the Ka%e^^ (fuch as
brothers, (ifters, or maternal uncles or aunts,) no fubfiftence is, in
his abfence, to be furniflied by the Kd%ee^ becaufe thefe are entitled
to a fubfiftence only through a decree^ and a decree againft an abfentcc
is illegal. By t\\t property of the milling perfon, as here mentioned, 15
meant tnoney^ becaufe the right of the above perfons is me^t and
clothings and where thofe are not to be found among the mi/Ting per-
lbn*s effects, there is a neceflity for the Kdzee to decree the va/ue\
and the value confifts of cajh. Bullion (that is, uncoined gold and
filver) is in this refpeA fubje£k to the fame rule with cajh^ fuice that
alfo admits of being given as value, in the fame manner as jco/L This
is where the Kizee has money in his hands. If, however, there be \nerr tlim
no money in his hands, but there happen to be fome in trufl, in the \7^m^\
hands of anothe perfon,— or a debt owing from fome other peribu, }SJJ^*X!J*^
the Kazee is in that cafe to provide the fubfiftence from fuch depofit fubfiitnce
or debt, where the truftee or debtor acknowledges the ^p^t otdett^ J^^^ii^
and alfo the marriage or parentage. This acknowledgment, however, fjJ^^S? ^
is neceflary only where thefe points are not fully known to the KSxee ; t^*bm.
for if they be fully known to him, the acknowledgment is not re-
quiiitc— If, on the other hand, fome of thefo points be known, focb
as the deht and the depofit^) and others unknown (fuch as the mar-
riage or the /iir^«//if f )— or vice verfa^ in this cafe the acknowledge-
ment is rcquifite with reiped to that whi«li is unknowns this is
approved. If the truficc or debtor funiilh the fubfiftence without an
order from the Kdue^ the trufiee is rcfponitble for fuch difbiiHement,
and the debtor is not difcharged from his debt, becaufo in fo doing
they have not paid any thing cither to the owner or to his rcprefen-
tatjve: contrary to where they furnifii fubfiftence by order of the
Kdzeef becaufe he appears as rcprcfcntativc of the owner.
If the truftee or debtor deny the dcpofit or debt, together with
Vol. II. P p the
290 MISSING PERSONS. BookXUI.
the marriage and parentage, or if they deny the marriage and paren*
tage only, in this caie the perfbns entitled to fbbfiftence cannot be ad«
roitted, as plaintiffs, to prove and eftablifli tho(e points which the
truftee or debtor denies ; becaufe a elaim is not admitted, uiileli it He laid,
againft either the principal^ or his reprefentatiwi and the principal,
in the prelent infbnce, is abient; and the debtor or traftee are not
either a3ualfy or virtually his repreientatives : — ^they evidently are
not aRually (b, becaufe he has not conftitutedany perfon his agent;
nor are they virtual^ fo, becaule, in the profecution of tlie plaintiiTs
claim againfl the ab(entee» the fpecification of the occa/im * of the
claim is no good plea for the eftablHhment of his right, — (namely,
fubfiftetice fiom th^ property in thedebtor^s or traftee^s hands,)—
fmce, in the (ame manner as fubnftence is due from that proper^, it
is alfadoe from any other property belonging to the miffing peribn :—
the debtor or truftee are therefore not virtually the miffing perfbn^a
reprefentatives.
^T^ '^^ ^^ JiL^r is not empowered to efied a feparatm between a
r^micm miffing perfon and his wife. MMik maintains that^ at the expinttioiu
^S!rY^' of four.yeara, the Kdteemzy pronounce a feparation, after which the
m4 ku wife, ^ife \g to obfenre an edit of four months and ten days, fuch being the
e£t of widowhood, — ^and ihe may then marry whoever ihe pleaies;
becaufe Omdr thus decreed with refpeA to a perfou who difappeared
from Me£nai and alfo, becaufe a miffing peribo, by his abfence, 6b-
flru£ks the woman*s right: — the Xiferr, therefore^ muft pronounce 1
feparation between the parties after the lapfe of a certain time, be*
caufe of the analogy this cafe bears to that of Jila^ or of smfotiuce;—-
that is to ikjf in the fame manner as^ m a cafe of ^iAi,anirreverfible
^ Mcaniiii, dw dfcamfiance pf << thi tntfia^r dik$r bevhn fetfer^Uu^'tf U ihi
^ mlgmifirJmmKM kgmb,'' which is mc admtfledas a pka on behalf of the plaincii;
ftnce hit UMAenc^ is equally due from any §iitr part of thrmifing perfon't property.
diYorce
BookXIII. missing persons. 291
divorce takes place at the end of four months*, on account of the *
hulbandy by JUa^ dbflru£ling his wife*s right, — and in the fame
manner alfo as, in a cafe of impotence, the Knzce pronounces a fepa-
ration f at the end of a year, on account of the*hulband thus obftru£t«
iiig his wife's right, — fo likewtfe, in the cafe in queftion, the Kizee
' mud pronounce a feparation, for the fame reaibn :— and the cafe of
obfenee being equally analagous to a cafe xX Aila and 6[ impotence^ the
length of the term is adjufted with a regard to botb^ by adopting
the numberyii/r from yf/Af, and the term /^^r from impotence, 15a as
to make pra£lice in ibis particular accord in the fame manner with
the other twa The argumaits of our dodlors upon this point are
twofold. — First, the prophet once declared, with refp^ to the
wife of a mifling perfon, ** Sbe is his %vife until fucb time as bis death
** or DivoKCKjba/I appear:^* and yt/ee alfo (aid, with refpeft to the
wife of a Mafkoody ** She is a mourner ^ wherefore fhe muft be patient,
^* until fhe be perfefUy informed of his death, or of his having
** divorced her." — Secondly, the exiflence of the marriage is no-
torious; and as the mere difafpearance of the hufband is not a fufficieDt
caufe of feparation, and his death is a matter of uncertain^, it foUows
that the marriage cannot be diflblved, becaufe of the Mbt. With re-
fpeA to the authority of Omar^ as cited by MiJik^ we reply that he
afterwards adopted the opinion of Akc. — ^As to what he farther
urges refpefiing the analogy between the cafe in quefUon, and a
cafe of ^/Af, it is not admitted; becaufe Aila^ in times of ignorance,
was an immediate divorce, but the law afterwards conftituled it a ^-
Iterate divorce |, and hinu it is that Aila occaftons a fepaiation§*— *
In the fame manner alfo, the analogy urged by him between the cafe
in quefHon and a cafe of impottnce is not adiAitted;— becaufe where a
• See Yd. L p* 306. t See vol. 1. p. 3S4.
X Jr§kn Talat AAwjU, meaning a divorce which 11 to tike phct wiAh a ttruin time.
§ Hutis to fay, it is for this reafon, and n§t becaufe of the kidbaiid obAniAing his
wife*i righ^ as fuppofed by MiSf.
P p 2 hufband
29< MISSING PERSONS. Book XIIL
httiband SJapptars^ it is pofiible that he 11127 re-appear, whereas it
is not poffible that an impotent pecfon (houkl recover bis virilUy, after
his impotence has continued for above aijear,.
Tlie«ifliB| Wrbn one hundred and twenty years fhali have eEipied', from the
iiccimda^. day of the miflitag peribn*s4>irth, he is to be declared JkfunB^. — ^The
^'*^' compiler oSHeddya remarks that Haffim has rehted this as ac opinion
ofHantefa. According to the Zibir RtmSyeti this point is to be de»
terminod by the deceafe of the co-fvak of the miffing perfon, or of
his equals^-that is, tho(e wlio are known to refemble hiib in health
and habits of body. It is recorded from Moo Too/of Utal the term \s one
hundred years.— -Some of the learned, again, fix it at ninety jem.
Analogy requires that the term fliould not be fixed at any particular
period, iiich as one bundredytan^ or ninety yes^rs^ (ince to fix a time
merely from Judgment or opinion is illegal: but yet ^t is requifite that it
he fixed by fome fpecific ibndard, fuch as the demife of the miffing
perfon^s co*evals, becaufe, if no criterion whatever were e(bbli(hed,
his deceafe could nevc!r be declared. The benevolence oi the law, how-
tctkttBdor cycf^ iuggefts that the term be fixed it ninety years, as this is the
franUsbinli: i\^or^c^fxed term mentioned*}-, and it is (fifficult to aiccrtain.any
thing refpe^ng the eircumftances of the oaiffiag perfbn*s co-evals or
equals.
wkcAluiwife Upom the death of the miffing pcrfon Being dbly declared, his
m!!*^^- "^^^ ^^^ obferve her edit for four months and ten days from the
do«rlMod| date of the declaration, fuch being the e£r of widowboodi and his
hit pro. ptoperty is to be divided among iiich of his heirs as are then living:
^'among *^^ ^^^f therefore, is the fame as if he had a^ually died upon the
petty ii di*
Yidcd among
• This is die rule in the Scnn/r. Thf compiler of the HiiSfo^ koire?er, has fixed tc
•<t mtiity jears, as appears a litde below.
t B/anyofthelaw^ortorcoaimeiitatcn*
inftant
Book XIII. M I S S I N G P £R SON S. 295
iiiftaut of the declaration) and hence anyperiba who died previous to ^V^^^<*S
the declaration does not inherit of him.
If the relation of a mifling perlbn die during his difitppearance^ AmKwg^
the tniifing perfon b not an heir, becau(e his exifteuce at the time is iDk^n£c«
eftaUiflied merely from dram^anceSf as having been once known, filSTcaniiiKbe
and confequently accounted to continue fb long as nothing appears to eiUbiUhed
the contrary:-— «ow mere riinrin^^iiir/W evidence is but wr^i, and appcanwcc;
therefore mcapable of conilituting proof to a claim (that is* to the
eftablilhment of i thing as yet m^eftabliihed) — although it conilitute
proof fuilicient for repulfimi^ (that is to fay, to prove the continttanc6
of a thing olreaiy efiabH^d.) With rcfpcft to the expreflion " the **« ^^ P*.
mifling perfon is not an- heir,**— it means tliat, whatever may be his M^^i
portion of inheritance, he does not obtain a property in it, but it is
held in fufpence; — becaufe his being in life is doubtful; and this is a
fufficicnt caufe of fufpence-— If, therefore, he afterwards appear to
be living, it goes to him;— but if there be no evidence o£ his being and, at tbe
in life when ninety, years have elapfed, his portion, which has bfeea J^f Jf'h?
{o fiifpended, is then to be diftributed amoag thofe who wereheirv to ^Mcapptar
the original proprietor at the period of bis demiie, as in the caid of rim) it diH-
embryos in die womk In the fame ntianner, alfd, if a perfon make a ^o^eribeLa
bequefl lu a.iniffing perfon, and the.tedator die, the bequefl does not
take place, but is held in fufpence, becaufe hfuefi flandsupon a £milar
fix)tiiig. with m^m/MTir.-
It is a rule that if there be another hdr befide the mifling peffim; Di^^oAu
who is not entirely precluded by the miffing perfon, but whofe right is caft of a ^
diminifhed by his intervention, this heir is to receive that which is ^^*
the Uaft of the two portbns of inheritance, and the remainder is held
m fufpence. If» on the other hand, there be another heir, who is
entirely precluded by the miffing ferfirn^ no part of the inheritoKice is
to be paid to him, but the wbok fertm of bheritance mufl be field
in fufpence. An example, in illuflration of this cafe, is as follows.
A perfoa.
294 MISSING PERSONS. Book-XIH.
A perfon dies, leaving two daughters, and a ion who has di(appeared ;
and alfo, a (bn*5 (on, and a fotCs daughter ; and his efiate is in the
hands of a Aranger ; — ^and the above heirs, and the firanger, all
agree that the Ton of the deceaied is a nufing fer/m-; and the two
daughters' demand their inheritance ; in which cafe they are jpaid
their moiety out of the deceafed*s eftate, as this is their undoubted
(hare: but the-other moiety, which is the portion of thoi»^f perfon, is
hdd in fufpence, and no part of it psud to the ibn*8 children, becaufe
they arc entirely precluded by the miffing perfon .if he be living, and
arc therefore not entitled to receive the inheritance, Aecauie of the
doubt :-— and this remaining moiety is not to be taken out of the hands
of the ftranger, unleis he be discovered in ibme dilhoneft pra&ices.-*-
Appofite to the example of the miffing peribn is ihe ca£e of a foetus in
the womb, for whom a child's inheritance is .referved, according to
an ojmiion.tipon which decrees are pailed. — If, alio, there be another
heir faefide the foetus, who is not in any circumibnce precluded,
nor his portion altered by the interventba of the fcttus^ his
compleat pocfiou is paid to him: but if this heir be fuch as is eu*
tirely precluded by the intervention of they2r/tf/, nothing whatever
is paid to him: — thus, if a man die, leaving a maternal iifter, and a
pregnant wife, nothing whatever is paid to the (ifter, as (he is entirely
precluded from inheritance by the intervention of a child, whether
male oxftmak. if, on the other hand, the heir be one whofe fliarc
is altered by the intervention of lY^t foetus^ in tliis caie xh^fme^lkr of
the two portions is paid to him, as this/ma//er (hare is his undoubted
right,^n^e fame manner as in the cafe of a miffing peribn«— For
infiance, a man dies, and leaves a pregnant wife, and a mother who
acknowledges the pregnancy, in which cafe the wife is paid an eighth
and the mother a^^cf A,— becaufe, if the fatus be bom iifix^, the wife
would receive an eighth, and the mother a (ixth ; but if it be not born
alive/ the wife would receive a fourth, and the mother a third:—
a iixth and an eighth are therefore paid immediately, as thefe are their
portions at all events.
7 HEUJrjf.
( «95 )
H E D J T A.
BOOK XIV.
OJ SHIRKA% or PARTNERSHIP.
SHIRK AT m its primitiTe fenfcf fignifies the cci^un^on of Ddiattionar
two or more eftatest ui fucb a manner, that f^€ of them is not ^^^*
diftingniihable from the other. The teim Shirkat^ however, is ex*
tended to cmttraffs^ although there be no actual cgnjunfficn tftflatts^
becaule a contrail is the cauft of fuch conjun^Hon. In the language
of the LAW it fignifies tie union of two or morefcrfom in one conam.
pAElrmuuHip ig lawful, becaufe in the time of the prophet men Pttomftiplt
were accufiomcd tohave tran(a£dons in partnerfiup, and the prophet ^^'^'^
confirmed them therdn*
Pakthusbi? b of two kinds, Sbhrkai Mitk^ or partnsrflup bj JjJ^^^^^
the rqfit fffnfcrt/^ and Shiriat Md^ or partnerlbip fy cmlr^. V>T^^
Shirkat
296 PARTNERSHIP. Book XIV.
PartnerOiip Shirk AT MiLK applies whcrc two Of itiorc pcHons arc proprietors
/r»/^f if of one thing; — and it is of two different natures* optional and compul-
cith«rv//#M , fi^ei^optional^ where two perfbns make a joint purchafe of one fpe-
cific article ; or where it is prelentcd to them as a gift, and they
accept of it ; or where it is left to them, jointl/t by bequeft, *and
they accept of it ; — or where they both obtain pofieflion, by con-
quell, of one fpecific article in an enemy's country ;— or where they
unite their relpcflivc properties in fuch a way as that one is not dil-
tinguifliable from the other, (fuch as the mixture of wheat with
wArtf/,)— or where it may be difficult to diftinguifh them, (as in a
oitmf»ffiv€i mixture oi wheat with ^or/ry:)— and compuljhe^ where the properties
of two perfbns become united without their aft, under fuch circum*
ftances as render it difficult or impofliblc to diftinguiih between them ;
and does noc q^^ where two perfbns inherit one property. In this fpecies of part-
ther partner nerfliip, therefore, it is not lawful for one partner to perform any aft
rrfpJ^ loihc witl^ rtfpeft to the other's (hare, without his permiffion, each bebg
ochcr'aflure. ^3 zjlraugcr with refpeft to the other's (hare. It is, however, law-
ful for either partner to (ell bis own (hare to the other partner, in all
the cafes here ftated : — 7nd he may alfo fell his (hare to others^ with-
out his partner's confent, excepting only in cafes oiaffbciation or ad^
wixture of property, for in both the(e in(hinces one partner cannot
lawfully (ell the (hare of the other to*a third pcrfon without bis
partner's permiflion. The di(tin£tions upon this point are reUted in
the Kafiyat-al-Mooniibee.
p2itncHhip Shirk AT Akid, ox partnerjhip by contrail^ is cSe€ted by propo/al
^''""^ and confent^ — that is, by one peHbn faying to another, " I have
** made you my partner in fuch a property,*' &c. and the other re-
plying ** I confent:" and it is a condition of the contract that the
concern refpeAing which it is made be of fuch a nature as to admit of
delegation, in order that the acqui(rtion ari(ing from it may be par-
ticipated in by both parties, and that thus the efFedb or deiign may
be
Book XIV, PARTNERSHIP. 297
be cftablifliod^ — ^in other words, that the acqutfitioa may become
equally the property of botli.
Partnership by compact is of four kinds, viz. fLullws^b'
I. Sbirkdt-Mofdwizai, or partncrihip by reciprachf. ^#S^
IL Shirkat^Aiman^ or partncrfhip in traffic^. jkmJ^JSit'
IIL SbirAat^Sinnaia^ or partnerfhip in arts.
IV. Sbirkai-H^oodjoob^ or partnerihip upon perianal credit.
Shiri^at-MopAwizat, or partnership hy reciprocity^ is where two Defcnpcionof
men, being the equals of each other, in point o( property y privileges^ and ^J^* ^
religious perfuafion^ enter into a contraft of co-partnerfliip ; — becaufc
this fpecies of partnerfliip is an univerfal partnerfliip in all tmnf-
aftions, where each partner reciprocally conrimits the buHnefs of
the partnership to the rthcr, without limitation or reftriftion ; for h re^uim
the term Mofdwizat^ in its literal fenfc, means equality. It is there- ^^X«]mv
fore indifpeniable that a perfeA equality exift throughout, in the pro- ^^
perty^ that is, in the partnerjhip capital^ fuch as dirms and deendrs.-^
(No regard, however, is paid to an excefs in any thing beyond the
partnership capital, fuch as goods or eiFe^ts, lands, or debts.) In ta^ of privi-
the fame manner, it is indifpenfable that an equality exift with re- ^"*
fpcft to privUegesf; becaufe, if either partner were endowed with
privileges not veiled in the other, there could be no pcrfeA equality.
In the fame manner alfo, eouality is indifpeniable in point of religion JflJ^'^"^
and oSfeil^ as (hall be hereafter dcmonftrated. Partnership by re* u^Sfia.
dprocity is lawful, upon a favourable couSlni£tion ;— but» according
to analogy, it is j^irlawfuL This, alfo, is one opinion of Sbrfa.
^ The commentafors define \tpartnerfiip tn fufdnfi uAJUt. The term doer uoc
admit of aajr Eurol traaOatioiu
t Anb. Tiffirrtfi thit is, fmer rf^hn.
Vol.. II- Malik
298 PARTNERSHIP. Book XIV..
A£S/iifzyt *^ I know not what Mo/dwizat is!**— Analogy would fug-
geft that a partnerfhip of this defcription is unlawful,-^becaufe it
includes a power of agency with refped to an unknown fuljcft, and
alio an obligation of fecurity with refpeft to a thing undefined; and
as each of thefe, individually, is illegal, it follows that, when united,,
they are illegal aforttorL The realbn for a more favourable con-
ftru^tion upon this point is that the prophet has faid *^ Enter into
** partnerfhips by reciprocity, for in that there is great advantage.'*
In this manner, alfo, men had tranfa^tions together, no perfon for-
Udding them. Analogy, therefore,, is abandoned* IgMrmce^ more-
over, in the contra6t in quefiioii, is lawful as a dependant of another
circumftance,-«-tbat is, as a dependant of equality \—^ the fame
manner as in a coutrad of MozSriiat^ where the contraA compre-
hends a commiflion of agency for the purchafe and (ale of articles un-
known, which commifiion is in itfelf illegal, but is neverthelefs leg^.
in a central of Mozdribat^ as a dependant q£ the contrad;. and io al£)
in the cafe in quefHon*
Thetcim !«• A CONTRACT of redprocity is not complete unlefs raapncityXic
^S^l^ exprefely mentioned in it, by the parties declaring **^ we- are partners^
^^tnA* *^ *' "^ * fartnerjhip by reciprocity f^^--\xc9M(c the conditions of it cannot
othecwiic be known. If, however, in entering into fuoh ar contcaA,
they declare all the conditions of it, the contra£l is \vm(^ akhcugh
the teitn reciprocity be not particularly expreflcd in it». becaufe r^acd
is bad to thcjen/ef. and not to^^Utter-.
It as hivAiI A CONTRACT of reciprocity isUwful betweea two adults who $n
mITJ^ free, whether they be both Mufnlntans, or both Zimmea^ fince^ m
l!!^ of£* other cafe, an equality eiufts between the parties. If one of them,
alio,, he zfaripiural Zimmee^f and the other a Pagani, the contraft is
lawful^ becaufe infidelity is one general defcription with reipefib to
faiths and hence equality in point of rel^n exUb iii thb inftaoce*
^ A yiwjk or Cbrifttan fitfcjcSof dip Jiv^UMttgOYeramciic.
A CONTRACT
Book XIV- PARTNERSHIP. 199
A CONTRACT of reciprocity is not lawful between a (law and a '^/\?^ ^^'
freemant or between an infant and an adult ; bccaufe equality does not y/«tv and a
exift in thofc inftanccs j-^-as au adult freeman is competent to tranfaft {^^i JJa
buHnefs, and to give b^l, whereas a flavc is not competent in either ^ ^^
of thofe pcMntSy but by confcnt of his mafter; and an infant is not
at all competent to give bail, nor to traniafl bu(inefS| but by permiiHon
of his guardian.
A coKTRACT of reciprocity is not lawful between a Mttfulaum ^ * ^%/^^'
and an iffidg/f according to Hanafa and Mobammed. Aboo Twfaf itf/M:
allies that it -is lawful, bccaufe equality exifts between thofp in point
6[ agency and bail^ fince in the £une manner as it is lawful for a Muf^
fuhum to be an agent or a furety, (b is it alfo for an infidel: and with
ccfpeft to thofe particuUr tranfaftions which are lawful to mt of theie,
and not to the ^ber (fuch, for inftance* as dealings in wine or /0r4,)
they are not regardedi in the fame manner as a fimilar-difference is not
regarded where a Hemeejite enters into a cootraft of reciprocity with
aibUowxr ciSbrfci^ for here the contiad is hwful, notwithfbmding
the difiereodt tenets of thole fods refpeding wilful dealings in the off>
fpringof fafnueas^^ which are held to be lawful by the followers of
Sbrfni but which are deemed illegal by ^cHaneefiies^ as being (ac»
cording to them) forbidden. Such a contrad, however, between
a Muffiibnan and a Zimmee is neverthelefs abondnaik (according to
Aboo Toofrfi) as Zimmees frequently enter into engagements oi an
unlawful nature, in confoquence of which a Mufulman might 611
into what is prohiMted. The argument of Haneefa and Mobammei
is that the two pcrfons in quefcion are not upon an equality in point
of/0Utfr £/'a^/(Mr»~-becaule, if a Zimnr^ purchafo whu or fork with the
capital fiock, the purchafe is valid, whereas, if a Muffulman were to
• T^fmn^tutcnmAgtsmitiloisAuA
as being dedicated to Goo»
purchafo
300 PARTNERSHIP, Book XIV-
purchafe thefe articles it is /Vivalid : hence the parties are not upon an
equal footing in point of tranfatVton.
uor between A CONTRACT of reciprocity IS not valid between two Jlaves^ two
two i^/»//» infants^ or two Mokdtibs^ bccauic a contraft of reciprocity is founded
TihH^ ^'^*'' ^P^^^ ^^^ ^^^y '^'"S furcty for the other, and the bail of fuch perfons
is invalid. It is to be obferved, however, that on all occafions where-
a contract of reciprocity proves invalid from the non-exiftence of fbmc
of its conditions, and thofe conditions arc not requifite in jtinin^ (or
partnerfliip in traffic^) the contraft of reciprocity becomes a coi>-
tra£t of partnerfliip in traffic bccaufc of the exiflence of all the con-
ditions requiltte in fuch a contrail.
h coRiDre- A contAact of reciprocity comprehends the properties both of
ttwimj and agency and bail. It comprehends the property of agency^ becaufe if
^ each of the contracting parties were not the agent of the other, the
cnd^ (namely, a mutual participation of property^) would be defeated.
It alfo comprehends the property ofiail^ becaufe if each party were
not furcty for the other, the equality, in certain particulars efiential
to traffic (fuch as the demand of payment from cither of them for
purchafes made by the other,) could not exift.
A mtrebafe Whatbver IS purchaicd by either of two partners under a cot>
iherpira^ls traft of reciprocity is participated of by both, except the food and
C^c^^bofb- c'^*^"^o purchafcd by the partner for himfelf and hb family; — bc^
exceptin tr- caufe a contraft of reciprocity requires that both parties be upon a
^^^if^"^' perfea equality: and as each is the other's fubftitute in all dcalitogs»
it follows that a purchafe made by one is equivalent to a purchafe by
both. This, however, is exclufivc of fuch articles as arc horc ex-
cepted, (which exception proceeds upon a favourable conftruftion,)
as the articles in queftion mufl be excluded from a contrad oC reci-
procity, neccilarily, because there is perpetual oecsfion ibr them:
for one partner cannot be made anfwerable for the other's wants i
neither
Book XIV, P A R T N E R S H i F. 301
neither can one of them expend the property of the other in the
fupply of his own wants; yet the.purchafe of thefe articles is indif-
pcnlable ; and, on accouilt of this indifpcnfable ncccflit^' *hr food
and other articles mentioned appertain folely to the purchafer. (Ana-
logy would fuggeft that thofe articles al(b are participated in by both
partners, in conformity with what was before advanced that " a con-
** traft of reciprocity requires that both parties be upon a perfcft
" equality/*) The feller of the food or clothing is, however, at
liberty to take the price of his commodity from either partner, as he
pleafes ; from the purchafer^ evidently, fince it was he who bought
the article; and alfo from the other partner, fince he is furety for the
purchafor; and in this laft cafe the other partner takes from the pur-
chafer a moiety of what he has paid to the feller, as having difcharged
a debt of the purchafcr out of property common to both.
Whatever debt is incurred by either of two partners in recipro- A debt incur-
city, for a thing in which partnerfliip holds, the other partner is re- ^nwrTi*^^^
fponfible for the fame, in order that equality may be cftablifhed. Of ^^^*^^jJJ
thofe things in which partncrihip holds areyi/r, purchafc^ and receipt other.
di hire or voa^es\ — ^and of thofe in which partner(hip docs not hold
are marriage i ^vAdhorcefor a compenfation^ compojition for blood wit*
fully floed^ and compofttion for a fubfijlencey and offcntt^t agamjl the
perfon.
If a partner in reciprocity become, in behalf of a third perfon, jj^n for /r,.
furety for property to a ftranger, it is binding upon the other partner ''^?'\
likewife, according to Haneefa. The two difciples allege that it is cither part*
not binding upon the other partner; becaufe a perfon's becoming ?„g'uyon Ae
furety for another is a gratuitous a6i* ; (whence it is that the bail ^^^
of an infant^ a Mazoon^ or Mokatib^ is invalid, — and alfo, that if a per-
« All cMceffmuu or a& «f a gr^natma defcription, ar« admitted in law to nScSt oxif
the ador himiUf,
fon
301 PARTNERSHIP. Bo«XlV,
(or give bail upon hit deathbed it is valid with refpeft to « tbirdxX
his property ODly ;)'— and as becoming fursty is a graiuitaus -all^ it is
equivalent to the aft. of granting a loan, or giving bail for the
perfonal appearance of any one^; in other words, if one of two
partners in reciprocity were to grant a ioan to a ftranger out of the
partnerihip Aock, it docs not affeft the other partner, infomuch that
the right of exacting repayment re(b folely with the kntkr^ as
kn£ng is a 'gratuitous a€t; — ^and in the iame manner, if one of two
partners in reciprocity become bail for the perfonal appearance of any
one, a requifition for the produ&ion of the perfon bailed cannot be
made to the other partner ;--4nd io likewife in the cafe in queftipn. .
The argument of HMnufa is that bail for property is gratmUaus in its
principle, but in its confequence induces a kind of obligation or con«
traAi becauie, in confequence of the bail, the furety is entitled to
exa£t of the perfon bailed whatever he pays to his creditors,*, provided
the ba3 had been given with his concurrence: it is therefore com-
prehended in a contrad of reciprocity, with regard to its amtinuoficei
(and the circumftance of its continuance is the point in queftion, as we
(ky ' Mt becomes binding upon his partner ^ur becoming fo upon Ahn*
«' fe^.'') With refped to what the two difciples urge, that *' a per^
^* fon^s becoming furety for another is a gratuitous aSi whence the
«« bail of an infant, a Mazoon^ or Mokdtib^ is invalid ; and confe-
^* quently, that it is not comprehended in a contra£l of reciprocity,**
we reply, that a contract of Uil entered into by incomfetent perlons
is invalid in its principle ; but in the ca(e in queftion it is binding
upon the other partner in the circumftance of its continuance only«
fiail, therefore, with regard to its continuance^ as being an aft of ex^
change^ bears a rdation to traffic i and traffic is comprehended in a
contract of reciprocity. If a dying perfon, on the other hand, enter
into a contra£t of bail, it is valid with refpefk to a third of his pro-
perty, in regard to its execution^ as well as its continuance. Thus
* Tliere is a auterijl^diirerence between bsllyir/r^^rt^ and bail lor iUfirJimy as is
ibewn at large elfewbere, (See BmL)
4 baU
BooicXIV. PARTNERSHIP. 303
bail ioT property is not ofzgratuiiMs nature in its cMtinumct^ where-
as bail for tbeperfin on the contrary, is grMtuitous^ both in its <ariar-
t3M and its continuance. Hence bail for property is in net refpeft
analogous to bail for the per/on. As to \Aizt the tviro diiciptei
further urge,, that ** if one of two partners in reciprocity were to
^* grant a loan to a ftranger out of the partnerfliip ftock, it does n^C
^< ztkSt the other partner, z& lenSng is z gratuitous aS^^^ — ^it is not
admitted ^ becaufe it is recorded from Hamrfa^ that the zBi of lending
does affe£t the partner : if however it even were admitted t^ Hanerfa^
as not affeding the other partner, we reply that a loan in money is
equivalent to the ad: of lending any article of goods or eJfeHf^^ and
hence die property paid to the lender by the borrower may be faid to
He l)xc fame identkal property which he had borrowed, and sot a oysy
penfation for it, (whence a flipulated time or place of repayment are
not valid in it,) and therefore, that lending does not bear ihe property
d exchange. AU which is here advanced proceeds upon a fuppofition eniN^ ^
of the bail for property haying been contraOed with the concufrenoc f^ ^
of the perfon bailed. If, however, it/ be entered into without his >r/«f.
concurrence, it is not binding upon the other partnert (according to
the Raw&yet Sabeeb oiHaneefa^ becaufe in a bail fo contraaed the
property of mutual obligation or excbangf does not <xift in its rmti-
nuance. Let it be obierved, alfo, that indemnificatMn fbr uforped
property, or indemnification for damages, Aand on the fame ground
as bail for property^ as thcfe are of a retributive nature in their.
prinaple.
If ^ property^ ^ of fuch a nature as that partncrfliip in it is valid, An
(hould fidl to one of two partners in reciprocity, by inheritance,— or, SS^SmS
if any perfon prefeixt him with fuch property, by gift, and he take JjP^***^
pofleilion of it,—- the contrail of reciprocity is null, and the partner* foim a mis-
Bcrfhtp 4r n^
• Arab. MIL Meaning propertj ia r^A hyBn^ or odici artide capiUe of conftU
cutiiigr#/f^#//Ki^ m ofvofitioo 10 iUAraM *Aforir,jhac i%i^^
(hip
304 PARTNERSHIP. Book XIV-
a'^'n^ fliip becomes a Sbirkat Amin^ bccaufe equality in point of property
b/ftt/ri (fuch as is capable of conftituting capital fioci) is a condition cflential
to a contra£): of reciprocity throughout, and this does not exift iiftiie
preient cafe, as the other partner is not a participator in the property
lb acquired by gift or inheritance* no principle of partnerfliip therein
appearing with refpeft to him. The partner(hip by reciprocity^ how-
ever, is refolved into a Sbirkat Aindn^ or partnerfliip in traffic^
as the cafe admits of fuch a partnerfliip, equality not being eflential
thereto; in reciprocity^ on the other hand, it is eflential, and bonfe-
quently reciprocity no longer continues. The reafon of this is that a
contraA of reciprocity is not of an abJblutcmXMtti now, in a contract
which is not of an abfolute nature, the rules with refpefl to its continue
ance and its cr.wnencanent are one and the fame ; hence an increafe of
the capital flock [of either parties] during its continuance is equiva*
lent to an inequality in its commencement \ and as au inequality of
capital, in the commencement of a partnerfliip of reciprocity, is prohibi-
tory to contracting it, fo, in the fame manner, fuch inequality taking
place during its continuance prohibits it: — the contrad of reciprocity^
petty bt St therefore, terminates. If one of two partners in reciprocity inherit
BMorc bca- g^^Jj or effe£ls*^ thefe are his folc property ; but the coiitradk of reci-
aiutbg/ki! procity does not become null; (and the lame rule alio obtains if one
of them inherit land\) becaufe, as thofe articles are incapable of
conflituting capital Jlock^ equality with refpcdt to them is not a
conditbn.
Arab. Rakbt wa Matti. In oppolitioa to MU.
SECTION.
Book XIV. PARTNERSHIP. 3^5
SECTION,
Partnership by reciprocity ^ cannot be contraded but in dirm% « ^^^
Jeendrs^ or ^uCtyyztmgfaloos*. Mdiik alleges that fuch a partnerfliip ii)rcdprodc7
is lawful in goods and cffe&s, and alfo in all articles eftimable by ^^aed
weight, or raeafurement of capacity, where the (pecies is the fame, ^»^ '«'*/«
becaufe a partnerfhip fo contracted fefpeAs a known and fpecified
capita], whence thofe articles are equivalent to money. It is other-
wife in a contraft o( Mozdribat\ for that is rcftriaed folely to cajh^
the legality of it being contrary to analogy,^ (ince under this fpecies of
engagement a profit is acquired on property concerning which there is
no refponfibility, (as* the manager is not refponfible for the Mozdribat
ilock,) and the prophet has forbidden the acquiiition of gain upon
property in which there is no refponiibility ; the coatra£t, therefore^
muft not go beyond what is prefcribed by the law ; and the only thing
in which the law declares Mazdribat to be lawful is cajh. The ar-
guments of our doctors upon this point are twofold. — First, if a
contraft of reciprocity, in goods and efiefts, were held to be legal (as
maintained by MSIik^) it would neceflarily induce a profit upon a pro-
perty concerning which there is no refponfibility ; becaufe, upon each
partner in reciprocity felling his own particular capital, (confifting of
goods and effeils^) if the goods of one partner produce a greater price
than thz goods of the other, the excefs of profit upon the good& of the
former would be due to the latter \ and this would be a profit fiom
property for which the pcrfon who gains by it is not refponfiUe, an4
in which he has no right; becaufe in this infbnce the contrail is
^ Anb. Fahtz^RMhe. FaUot is t copper coin of oneertain value. FtJmt^RaUba
tncattt copper coin #« vikUh ^ aiotmtagt m^ h gautiJ^ (owing to the fluAoation in its
ynl\K^)9M hence ^t^mRMioi$htrtTCiacttiJluat$athij:.
Vol* II. R r conneded
3o6 PARTNERSHIP. Book XIV.
conneQed with aflual goods^ and not with the femblanci of them,
fuch as debts ; and the goods are a iruft in the hands of each partner
rerpeflively ; — whence it is evident that a profit is induced upon
property concerning which there is no r^fponiibility. It is otherwife
with cajht becaufe whatever cither partner may purchaie with the
capital ftock, confiding of calh, the purchafe thereof is not oonneded
with the aAual capital, but with xtzfimblanct^ namely deht^ (iince the
frkc of it is a debt;) — now the purchafe being connefted with the
femblance of the capital, (namely debt^) and the other partner alio
being liable to be called upon for it, (as a contract of reciprocity in*
volves mutual bail^) it follows that the coniequence objedoi (of pro-
fit upon property concerning which there is no reffmftbility) is not
induced, (ince this is a property in which there is refponfibility. — Se-
condly, The firft tranfa^ion in goods and effeSs is ^tfak of them;
and the firft tranfaflion in cajh is purchafe made with it: — now a
perfon felling his property under the condition of another being his
partner in the proceeds is unlawful, fince this is endowing with a right
of property in the debt, and an endowment of right in a debt, made to
any other than the debtor himfelf, is illegal : on the other hand, .
his making a purchafe with his own property, under the conditioa
of another being his partner in the article purchafed, is lawful, fince
this is endowing with a right of property in an a&ual fubfimeccj and
^ffTu JW* i» * debt. — Faloos-Rabiha^ or fluftuating copper coins, are con-
cooprelieiid. neCted With Srms and deenirs^ [ca(h,] as they pais current, in the
hctdofrij/r^O ^^c manner as gold and iUver coin. Mohannned is of this opinion,
becaufe he holds ihzifaloos are cafi^ infomuch that they cannot be
particulariied by fpecification; whence it i^ that if any peribn were
to purchaie an article, for certain yZi/o^x, he is at liberty to ^ve any
other ya/<i0x in place of them; and alfo, that two fpedfied ya/^ox
cannot be ibid for one faloos^ according to what is eftabliihed. Ac-
cording to the two elders^ partncrfliip, or Mozdribat^ are not lawful in
faloos^ although they be current^ as the valuation of them flu^biites
from time to time, and they at length become the fame as goods or
eSeOs.
Book XIV, PARTNERSHIP. 307
cfTcfts*. Jiboo Toofqfis elfewherc faid to entertain the fame opinion
with Mohammed upon this point. It- is alfo recorded^ from Haneefa^
that a contraA ofMozdribtU is lawful in c\irxtnX.faloos\ but not a con-
trad of rtciprocUy* Thus partnerfhip by reciprocity is not lawful
in any thing beyond dlrmi^ deenSrsj and current yi/oo/f. It is to be or m gold or
obferved, however, that if gold or filver bullion^ by general ufage, fiJj|«'Wlion»
pafs current for value |, in this cafe partnerfhip by reciprocity is ptfoUair*
hwful in it. This is alfo related in the Kaioorea It is aflcrted, in '^^^
the ^ama Saghter^ that partncrfliip by reciprocity is not lawful in
gold or niver bullion; for^ according to that authority, uncoined
gold and filver are the fame as houfehold fiuff, diftinguifliable by
identic fpecification, and therefore incapable of con(Htuting capital in
txxhti partner/hip or Mozdribat. It is faid in the Mabfoot^ treating of
exchange^ that gold or (ilver cannot be identified by fpecification, in-
ibmuch that a contrail of (ale is not broken in confequence of any
accident to the bullion before delivery ; — (that is, if a perfon purchafe
any article, agreeing to give for it certain gold or filver uncoined,
and it be loft before delivery, the contraA of (ale is not broken, be-
caufc the gold or filver cannot be particularly fpecified.) — Now fuch
being the cafe, it follows (according to this ftatement) that uncoined
gold or filver are capable of conftituting capital ftock, in either Mo-
tJribat or ^artnerjhlp^ on this ground, that the precious metals
were originally introduced for the purpofe of valuation §• The opi-
nion delivered in the Jama Sagbeer^ however, is the moft approved ;
becaufc, although the precious metals were originally introduced for
the purpofes of traffic, yet their capacity to repreient property depends
upon their being mn^^, as when once coined^ they are no longer'liable
^ That is, are no longer cumnt.
t That is, fuch as have not yet become depreciated bebir the current ftandard.
X Arab. Sinrn (or Thimni) meaning a reprifimetiverftnfenj^ and therefore ufed (in
purchaTe and (ale) to exprefs price.
§ Arab. SU^SlnuuM i diat is, yir the fwrfift •fctn/iUtaingfrUi^ or (in other woids) f
refrtfinting frtftrtp
Rr 7 to
3o8 P A R T N B R S H? ?• Book XIV.
to be uied for any other purpofe (fuch as making ornaments for the
per(bn» and (o forth:) uncoined gold or filveri therefore, does not
conftitute value, except v/here the ufe of it in that way is cuftomary,
in which cafe it is the {zinc as coin^ and confequaUly a reprefentative
oJF property, and as fuch capaUe of conftituting capital flock. It is to
be obferved that what was before advanced, that ** partnerfliip by re«
'* ciprocity is hot lawful in any thing beyond dirms^ deendrs^ and
^* currtatja/oos^** applies to all articles of weight and meafurement of
capacity, or which are of a beierogineous nature*. The illegality of
reciprocal partnerfliip in thefe articles is admitted by all our doctors,
frwlded the partnerjhip be coutra3ed frevious to the union or admixture
rfftoch^ in which caie it is illegal, and each partner receives the pro-
fit arifing from his own particular commodity, and the lofs upon it
alio falls on him. If, alfo, two perfons mix bwiegeneoui flocks, and
then enter into acoutra& of partnerfhip, Aboo To^^ holds the rule to
be the fame, and that a partnerfliip by right of property is here efla-
blifhed, not a partnerfhip by reciprocity. Such, alio, is the do£lrine
^m^^h ^^ ^^^ Z&hir Rawdyet. According to Mobanuned^ the coatra€l of
in honogc- partnerfliip, in this ihflance, holds good. The refult of this difFer-
^a^Mix' ^^^^ of opinion appears where the property .of both partners is equal,
tuf«. and they flipulate a larger profit to ane^ and a fmaller profit to the
otber\ — ^for in this cafe, according to Aboo Toofaf each is to receive
in proportion to his property, and he in whofc favour ^^ larger
profit had been flipulated is not on that account entitled to receive
any excefs; but, according to Mohammed^ each is to receive agreeably
to what was flipulated. The ground upon which the Z&bhr Rawdyet
proceeds is that articles of weight and meafurement of capacity -|-, and.
fo forth, are diflinguifhable by fpecification after admixture, in the
fame manner as before. The argument of Mohammed is that - the
articles in queflion are, in one fhape, value ; for if a perfon were to
• Arab. Jdwte M9$tUril^ that is, rcrembling In appearand^ but differing in Jf edit.-
t Meaning tiwiys infin^^r Jififuii, fucb U arcca|able ofadmijctuni in oppoCtion to
Jteibt2ndMattS^itat\siȤdiZDdfffiaf
fell
Book XIV. PARTNERSHIP. 309
fell goods for fuch articles, fb that the price of the goods, (confiding
of thofe art'tcles,) is a debt upon the purchafer, it is Uwful ; and, in
another (hape, they are fubjeds oifale^ as admitting of fpecificatioti :
attention, therefore, is paid to both tliefe circumftances, with refpe£t
to fituations both oi admixture audpf m/i-admixture: in other words,
partnerfliip in them, before admixture, is unlawful, as they are then
fubje&s oijale ; but after admixture it is lawful, as they then confU-
fute value: contrary to the cafe of goods and effelli of any other
defcription, fincc thefe are not value in any (hape. If the (locks [of h cinnot be
the refpe£tive parties] be of two different fpecies, fuch as bart^ and fpeaingAifr-
wbeat^ or tdhjes and pepper^ aiid the proprietor unite them, and then JJ^^'
enter into a contract of partnerfliip, it is unlawful according to all our
dodors. The reafon for this diftindion, according to Mohammed^ is
that whatever is mixed, of one fpecies, is Zooital Imfdl* \ and what-
ever is mixed, of two different fpecies, is Zoodtal Keem^ : now as
things of different fpecies, when mixed together, are Zoodtal-Keem^
ignorance exids with refped to them; (becaufe, it is requifite that
appraifers fix the value of them J,) and they are therefore incapaUc
of conftituting capita! ftock, in the fame manner as any other goods
or eflfedls: — a partnerihip in them is confequently invalid; and fuch
being the cafe, they become fubjed to the rules in admixture of pro-
perty, as treated of under the head of Decrees^ in the Jania Sagheer^
and which (hall be fully fet forth (in this work) when we treat of
defofts §•
Where
• Things compen&Sle bj an equal quantity of their own fpecies, (fuch as whiot for
sahtei^ for/47 for for/7, &c.)
t Things coopenCible only by an equivalent in m»ney.
X Before the refpedive propordon of each partner, in the capital ftock, can be
afccftaMied,
4 The trgamenU throughout this and the precedmg paflages are (b much involved
in fubtk diftinOion and perplexing cafuiftry, and are in many places fo little capable of
an intelligible tranflation, ((com the impoffibQity of rendering clearly the Ucbmcai term
which
Jio PARTNERSHIP. Book XIV.
JJ'^^^J^ Where two perfbns arc defirous of entering into a contraft of
/;i^{^ttcr. paitneiihipin jfW/ zvAefeHs^ each.muft fell one half of his own
||j2f^j5[^ gcxxis in lieu of one half of the good? of the other, fo that a Sbirkai^
WJHpe Mtt, oc partnerflyip fy right £^^f^r/y may be e(bhli(hed between
flock w the them; and then let them enter into partnership by compaft. — (Our
author remarks that m thb inftance a partnerlhip m right tf property
is eftablilhed, but that a partnerihtp iy reaprocity is not hwful, as
goods and eflfeds are incapable of conttituting (lock in fuch a part-
ncrfiiip.) With refpeft to what is adva.iced above, that *^ each
^^ partner muft fell one half of his own goods in lieu of one half of
*^ the goods of the other,** — ^it means, that each is thus to fell a
moiety of his goods to the other, prwiScd the value of the goods rfeacb
be equal. If» however, the value of the goods of each be different^ it
is requifitethat he whole goods are odeaft value (ell fuch a proportion
as may fuffice to eftablifh a partnerihip; for inftance, if the value of
the goods of one htfour hundred dinns^ and that of thofe of the other
be one hundred dirms^ then let the latter kWfoMr^Jtfths of his goods
to tht/ormer^ in lieu of one-fifth of bh goods, fo that the whde of
the goods may be held in paxtnerfliip between the parties, in five lots,
or ihares. With refpeA to what is advanced by our author, as above,
that " a partnerfliip in right of property is eftabliflied, but a partner-
" (hip by reciprocity IS not lawful,**, it is of no wci^t; for, ren-
dering goods and effefts capital (bck in a contra£t of reciprocity is
illegal, only, becau(e this would induce a. profit upon property concern-
ing which there is no refponfibility, — or, becaufe the relpedive capital
of each would be unknown at the time of divifion : but ndther of
thefe realbns exJft in the cafe in queftion : — the firfi rea((» does not
mkh h frequently occur in them,) u greatly to obfeure the matter. The prioctplc upon
which the whole turns is that ^ a partnerfhip bjr ndfruity cannot be entered into with
** refpca to any articles which are notjlandardt tfvatiui^ and the queftion is, ^ what
« ankles they are which may be confidered as ftandardsJ**— which (one of the dofiors
confine folely tp tafi m the precious metals : others extend it to taJlimi and others, again,
to copper coins [/aIo9s ;] whilft ibme include iram^ contending that this is a fiandard of
Wttf, and may therefore be ufcd to ttpitkat property, in the iame manner as cafli.
cxift,
Book XIV. PARTNERSHIP. 31J
exift^ becaufe upon each (elliiig a moiety of his eflate to the other,
the half of each partner) refpeAively, is a fubjedl of refponfibility to
the other, with refpeft -to its value, and hence the profit which
accrues from the property of both is a profit from property whicb is
a fubjed of refponfibility : and the feconJ TcsSon does not exift evi-
dently, becaufe there is no occafion for fpecifying the refpedive
capital of each partner at the time of divifion, (b as to require the
valuation of apprailers, thence inferring ignorance refpefttng it, be-
caufe the property of both is epial^ and they are both partners in that
property, and confequently, whatever price the property may bring
muft neceflarily be divided between them in equal (hares.
Shirkat-Ainan, or partnerfliip in /r^, is contrafted by each Befcriptiom
party refpe&ively becoming the agent of the other, but not his iaU. ihipiii/^j&.
This fpedes of partnerlhip is where two perfons become partners in
any particular traffic, fuch as in c/o/bs or wbeat^ (for inihnce}— or
where they become partners in all manner of commerce indifferently.
No mention, however, is to be made concerning iailj in their agreement, J^miTinuiuti
as bail is not a condition in a partnerfhip of this nature : — but it is indif- ^«'A bot ic
penfably requifite that each aft as agent on behalf of the other ; fince, tual aiem^^
without this, the defign, (namely, partnerfhip in property,) cannot
be obtained ; as a£ts done on behalf of another are performed either in
virtue of (bme avowed authority, or #f agency i and no authority
cxifling, agency is conftituted, in order that each may aft for the
other, fo (hat the property may, be held in partnerfhip between
If the ftock of one of theie partners exceed that of the other, it ft adnits of
b lawful, beca^ufe there is occafion for this equality, (as fhall be here- ^tof (^:
after demonftrated,) and the terms in which fuch a partnerfhip is
contrafted do ndt require eqnaKiy.
In
Jii PARTNERSHIP- BookXIV-
3jj?^jf * In partiier(hip in tr^ffic^ it is lawful that the ftock of each partner
f ioAatc pro- be equal, and yet the profit unequally fliared,^— that is^ that it be
ftipuUted that the profit to one partner exceed the profit to the ^ther.
Ziffer and Sbqfa maintain that this is not lawful ; for if, with equality
o( flocks^ an inequality of profit be admitted, it induces a profit upon
property concerning which there is no refponfibility; becauie, if the
capital appertain to the two in equal ihares, and the profit be divided
into three lots (for infiance,) the Iharer in the larger proporti(»i of
profit is entitled to a fuperior profit without any refponfibility, fince
the refponfibility is in proportion to the capital ; — and alio, becaufe a
partnerfhip in the profit exifts in virtue of partuerihip in the capital^
(according to their tenets, whence they like wife hold the adnuxture
of the property to be a condition;) — the profit upon the property,
therefore, is the fame as increafc of living <(lock ; and each is coale-
quently entitled thereto, in proportion to bis original right of pro-
perty in the capital. The arguments of our dodors upon this pwit
arc twofold. — First, the prophet has faid •• ^be profit between tbem
•* is according to tbeir agreement^ and tbeir lofs in proportion to tbeprfh
" pert/ of eacb reJ^Rroely ^^^ — where no didinftion is made be-
tween the equality or inequality of their properties. — Secondly,
in the fame manner as a perfon is entitled to profit in virtue of
property^ he is alfo entitled to it in virtue of labour^ (as in a
cafe of Moz&ribat^ for inftancc :) it may alfo fometimes happen
that one of the partners is more Ikilful and expert in bufinefs
than the other, and confcqucntly, that he will not agree to the
other fharing equally in the profit, whence it is requifite that one
have a larger (hare than the other. It would be otherwife if the
nubole profit were reftridlcd to one of the partners, becaufe in this in-
ftancethe contraft is not a contraft oi partnerjhip: neither is it a
contraft of Mozdribat% for if, in Mozdribat^ the whole profit be
afiigned to the Manager^ it is a loan ; or if to the proprUtor oftbejlock^
it is a BasAt. With refpeft to what is objeAed by Zifftr and Shafeiy
that •• if, with equality of (locks, an inequality of profit be adnutted,
6 " it
Book XIV. PARTNERSHIP. 313
^^ it induces a profit upon property concerning which there is
" no rcfponfibility/' — ^wc reply that a contraA of partnerihip
in traffic refembles a contraft of Mn&rlbat^ in this particular,
that each party rc(pe&ively manages with the ftock of his part-
ner; and it alfo refembles partnerfliip by reciprocity, both with
regard to its name^ (as \^vci%% partnerjhip^ and likewife with regard
to the conduR of it, becaufe both partners ad in it. In confideration/
therefore, of its refemblance to Mozaribct^ we determine that it is
lawful to ftipulate a profit upon property concerning which there is
no refponfibility ; and, in confideration of its refemblancc to partner-
ihip by reciprocity, we determine that, if it be ftipulated that both
partners (hall aA alike*, yet the contraA of partnerfhip in aAuai
fiock is not invalidated.
It is lawful for either party, in partnership in traffic^ to engage in A perfea
the contract with refpedi: to a /^r/ of his property only, and not the a ^rrMily *
wbok^ becaufe an equality in point of flocks is not efiential to it, fmce ^rty"i/h!'
the term Aln&n does not require it.
Partkership in traffic is not valid except in fuch property as 1^ Theftockcm
hwful in partnership by reciprocity. ^^^ l^^^^^
in rt€ifr9<ai
pirtnerihipi'
It is lawful for two men to engage in a partnership in traffic^ but the f«t
where the flock of one party confifls of dirms^ and that of the other ^'t^^J!*
party of ikendrs^ or where on one fide it confifls of white JirmSj and
on the other of black dirmsj^. Ziffcr and Sbafei allege that this is
illegal. This difference cf opinion is founded on a difference of fenti-
meats rcfpeAing the admixture of flocks ; for, according to thofe
* Although a greater (hare xi the profit be conditioned to wt of the partners.
t The tranflator has not been able to difeover the difference between hUck dirms and
white dirms :«— it is probably fomc 1§cm/ diftinfiion^ known in Pirfia and JraHa.
Vol. II. S f two
314 PARTNERSHIP. Book XIV.
two ioGtoiSp z eochfiiHce of the capital is efiential to Ac partnerfhip ;
and that cannot take place where the two ftocks axe bct^rogineous.
This point will be more fuUy treated of hereafter.
^^h^ WttERS one of two partners m tn^ makes a purchafe,. the de«
cbiaiea from maud for the price lies agsuoft hina^ and not againft the other partner ;-
wiM^lfiMn (becaufe* as has been already demonftrated, the contrad of partner-
<^»* fliip in queflion comprehends agency ^ but not taili and the agent is
the original with refped to rights^;) and on making payment, the
purdia^ is to take from the other partner his proportion of the
in^ Am part^ pricc, (provldcd he has latisfied the demand out of his own particular
»^w|^y- property, and not out of the partnerfliip ftock,) becaule he is the
coorfc tothc* other^s agent with, refped to his (hare. If, however^ it be not inawfk
J^^^** whether he has paid the price out of the partnerfliip ftock, or out of
his own property,, except from the declaration of the purchafer himfdf;,
it is in this ca& iocumbeut upon him to produce proof; becaufe the
purchafer here^advanccs a claim, for property againft his partner ; and
the partner refifts his claim: and the declaration of a defendant^
(delivered upoa oath^) is to be credited*
fatn^Xato ^* *^ yvhcic partncrfliipt /lock, or the ftock of either partner in
tilt loft of particular, periih before any purcha(r. be m^de, the contract of part-
S^ttil^or ncrihip is annulled: becaufe,. in a contraft of partnerlRip, ^tfubjcA
2«J«J^ of the contraft isprop$rtyf (tlut being fpecificd in a contra^ of part-
inptiuadar^ nerfliip, in the fame manner as in a ikedofgifi^ or a w///,) and,, in
confequence of dicdcftruaion of ;hc fubjedl, the contraft is diflblved,
in the (ame manner as in/a/c. It is otherwife in Mozdriiat^ and
Jivgulcr agauyff becaufc in thofc the Jlrms or tenors cannot be
identified hy J^cjficaiimXf or in any other mode than by affual.
^ Thatk, £# is the perfon upon w*oin all demands are to be mide.
t Arab. fyUiSt-Adotfrmiiii meaning, agency witb rejffO ufme ptriJaJar o^.
t That is,. Ij tbinitnii9H rfthmhiAi iMraQi..
/• • •
BookXIV. P a R T N E R S H I Pi ji5
/mki. The agency herein mentioned is reftrided to ^tjinpihr de*
icription, for the purpole of di(Boguiihing ic from the agency impli-
cated in a conttaA of partnerfliip or of pawnage, becaule that is
annulled by the difK)lution of the partnerfhip or the pawnage> as a
thing which is comprebenJed is annulled by the difiblution of that
which comprehended it. An example oijingular agency is where a
perfbn commiffions another to purchafe him z flavin (for bftance,)
in which ca(e> if he ^ve the agent money for that purpofcr,
and the money perifli in the agent^s hands, yet the agency is not
annulled. — «< It is otherwife** (fiiys Fakr-al-Ifldm in his commen-
tary on the Z^^if^,) <^ in cafes ofM^zSriht zni partMtr/h^^ be^
^* caufe the Sms and deendrs are in both identified by fpecifica«
^^ tion, inibmuch that if the money be. loft before ddivery, the
*^ Moziribai is annulled.** This is contradiftor7to what our author
has above advanced, that, ^* in M&zdribat znA finptlar zgmcy^ the
^^ dirms and deenirs cannot be identified by ipectfication, nor in any
*** other way than by a£lual (eizin.** It is, however, probaUe that
there are two opinions recorded on this point. What is above iaid,
that ^* if the Wi60/r partnerfhip ftock, w the ftock of dther partner
in particular^ perifh before any purchaies be made, the contraft
of partnerfhip is annulled,**-— is evident, where the whdc ftock
of both partners pcrifhes;. and where the ftock of one of the partners
perifhes the contract is alio annulled; becaufc the partner whofe pro-
perty has not pcrifhed had agreed to the other participating in his
property for no other reafon than that he fhould alfb participate in
iht viber^z property; but, upon this being rendered impoffible^ he
will not agree that the other fhould participate in bis prof^rty. The
contrad, therefore, is void, as its continuance is ufelefs: and, to
whomfoever the dcftroyed property belonged, the lofs affefts bim UA^^
only, and not th&o/Arr, whether it perifh in bis oum hands, or in the ^^^*^
handsof his/tfrMrr;~ifin^/iOTVii hands evidently; and alfb, if in ciMMmIS
Che hand» of bis partner, becaufe it is a irujl in the hands of that perfoo *• «!idH^^
loQacd^
• A truftee it not refponfibk for his cnift in caTa odfi wdf/TnOiiiB* (S^c Difffts.)
Sf a It
HI
3t6 PARTNERSHIP Book XIV.
""rift^'aftf It is othcrwife, however, where the (lock periflies after admixture;
admixcure. for in this caie thelofsMs upon thepartnerflup ftock generally, fuicet
as the property of each is no long^ diftinguifhaUei it follows that the
lofsmuftaffe^^/^.
A f'j^^^'^ I^ ^^^ of the partners in queftion make a purchafe with his own
Hrtner. ^^ ftock, and the ibck of* the other afterwards perifli before he has
fti^dTof^dM ™^^^ ^'^y pui^^^<^ ^ith it, in this cafe the thing purchafed by the
other «y>rr. firft partner is in partnerfliip between the two, agreeably to ftipula-
rithes/upar- tion; becauict as partnership fubfifted between them at the time of
by'£!fA;and the purchafc, the article purchafed became a fi:^jed of partnerihtp
itrp^cMtn' ^^w««^ *«« at that time; and the tSeSt is not altered by the dc-
anet in force, flruabn of thc other^ property after the purchafe. This partner-
^SHonuiat ^ip in the purchafe is a fartnerjbip by eantraS^ (according to Mo^
bammed^) infomuch that, whoever of the twtf fells it, the faie is
hwfuL Haffm-Ibn^Zceydd alleges that the partnerfliip is merely a
partnerfliip by right tf property j^^ inlbmuch that it is not lawful for
either partner to fell more than his owa fliare, becaufe the contrafb
of partnerfliip was diflblved ia the prefent inftance, in con(equence of
the deftruQion of flock, in the fame manner as where the deflruAion
takes place before any purchafe being made ; nothing, therefore, xt^
nmt^i except thc eJeS of the purchafe, namely,- right ofprtfperiy [iu
the thing purchsfed,} and hence it is a partnerjhip by right of pro-
ftrty. The argument ci Mobmnmed is that the cMrrroA. has-been
completely fulfilled with reipeft to the article purchafed, and conle-
quently cannot be rendered void by the deftruftion of property after
fuch completion. It is to be obferved that, in the cafe now under
confideration, the purchafec is to take from his partner his propottioa
• Meaning, that the partneiihip (with rcTpeA lo the^miv^) comiaiiet in foroe
under the original comraa,
t That is| exifting neiely in.Tirtue of « m^u$l rigU ff fnferir, and not oC the
tmtraH^
of
Book XIV. PAR T N E R S H I P. 3^7
of the price [of the article purchafcd], becaufe he bought a mmety of
k hyagMcy^ and paid the price, out of his owa fubftancc, as was be-
fore mentioned.— What is now advanced proceeds upon a fuppofition
of the purchafe made by one partner having been effcAed i^ore the
deftruAion of the other's ftock. If, however, the ftock of one bMiritomfli
partner firft perifli, and the other partner then make a purchafe with ocker't p«r-
his own fubftance, and it ihould have been exprefsly agreed,, in the ^;^^
contrail, that each is to aA a» an agent on behalf of the other, in |^^^^^
this cafe whatever thepurchaier may have bought is divided between acHhip by
the two, according to their prevbus (Upulation; becauie,. although ^^f*^
the contra£k of partnerfiup be annulled, yet the agency, which waa
exprelsly mentioned in it, continues in force; the purchafe is there-
fore participated in by both, in virtue of the agency; the connexbn
continues a partnerfiup by right of property i and the purchafer is ac-
cordingly to take from his partner hb proportion of the price,, for the
reafon before ftated. If,, on the other hand, the partfurjhip only be «akfi thm
mentioned in thecontraA, and nothing exprelTed in it reading each doiior«JLi/
partner a&ing as an agent on the other's behalf^ the article purchaied 2!Sia" .*!&
fagr one partner appertains folely to hm\ becaufe, if the article were <» lUtcaicit
participated between the two, it. could be fo only in virtue of the )!!!aFI^^
mutud agency implicated in die contra^; but, that bebg aimulled, ^^^^
the power of agency implicated in it is aUb annulled*. It is othei Ife
where the parties have exprefsly mentioned a mutual power of agency;
becaule in this ca(e the ag^cy is not annulled by the annulment*
of thrpartnerfliip, as agency is here one efpecial dofign of the QM-
traA, andis not merely tm^attdva it.
A FARTHBMKift is legal, although the parries (hould not have PirtteHUp
mixed ftocks. Ziffer and Sbafei mamtain that it is iUeg^^ bcScauie ^^J^^
the ^r^/ 19 a brAich of the y?0ri, and iheHranch is -not to be partid^ uitofioeb.
pated in except where the original ftock itfcif is alfo participated,
which cannot be lb but by toakfcenct or sdmixtkre. The ground
upon, which they proceed is that, in a contrafV^ of partnerfliip, the
Jloci
3*« PARTNERSHIP- Book XIV-
Jioch is tlicy&i^irfi of the contraft, (whence it is that the paitnerdiip
is referred to liatjlock^ fajr each partner faying to the other ^* I make
" you my partner in foch ftock^'^^-and alfo, that the fpecification of
the capital is an eflential>)~^nd, fuch bong the cafe^ it is indifpenf-
aUy requifite that the ftock be partidpatei in by both. It is other-
wife in M$%dntut^ as that is not ^tmrjhip^ fince it implies nothing
more than, that, as the manager is to aft for the proprietor of the
fiock, he is coniequently entitled to \ <hare in the profit, as VDogtt m
accwnt tf his labtmr^ which is different from the cafe in queftion,
where the pmfit is a branch cf tbeftoeJt^ and not wages for labour.
This is a grand leading principle with Ziffcr and Sbrfei^ infbmuch
that (arguing upon this ground) they allege it to be indifpenfaUe, in
a contraft of partnerfhip, that the ftbck of both partners be of the
fame ipedes; fort if otherwife* (as where one is pofleflcd ti £rms
and the other of ieenSrs^) they hold that the contrad is invalid be-
cauieof khe capital not being participated in by both: and they alfb
allege (upon the fame principle) that admxture is an eflential: and
likewiie, that It is unlawful to ftipulate an excels of profit to either
partner, where their ftocks are equal, as the profit is a branch of the
{lock : — ^and alfb, that partnerfhip in arts^ and traics\ is illegal/ as
in thofe there is no flock, (as (hall be hereafler explained.) — ^The
arguments of our dodors upon this point are twofold.— First,
paitnerfhip in profit is referred to the contra3^ and not to tbe^oci;
becauie^ as the contraA is termed ^^ a concrad of partnerfhip/* it is
indifpenftbk that the /r0/<r/f of the term /tfT/iifi^ and«
fuch being the cafct it fbUows that the adxxuxture is not eflential.-~
Skconoly^ as the money [of which the flock confifb] is not fpecified,
the profit is not derived from the capital^ nor indeed from any thing
cUethan the iamfailhtts [which are had with the dock;] becaufe
each party is a /riMTj^y witk refpeft
o Arab. ShlrUt TahIM (fyiionynotis irilh tbirUi Kmim.)
t hsA. Wrioi JmmT
^ent
BooK3aV. PARTNERSHIP- ji^
i^iatfwkbfe^efttotbefi/ierlulf; uid,as.it hence appears tint part*
nerfhip may be efbbliihedy in pobt of trmtfaaion^ wi^outadmiztQr&
of ftockst it follows that it maj aifi> be eftablilhed in the thing which
accrues from traniaftion,. (namdyt thc^^,) without fuch admix-
ture; and, as the contrad of partnerihip thus becomes fimilar to a.
contraft oi Moziribat^ a fimilarity of {pedes in the ftocks^ and an
equality of pn^t, are not eflentialsy althou^ the ftock of each be
equaL A partnerfhip ia arts is alfo lawful on the £une principle*
A CONTRACT of partnerfliip, wtuch ftipuhtesany particular fum PartMifiip
out of the profit for one of the partners, is unlawful,, as this condi- fST^^^
tion is a means of deftrojring partnerihip^ fince it is poffible that no t^heSt^
more profit may be acquired altogether, than the fum {o fHpulated. ^ ^dier
Correspondent to this is % cafe of cultivation; that is to faj, where '*'*'^*'
the parties, in a compaA of cultivation,. {Hpulate a particular quantity
of produce to one of them, (that is, to the cultivator or to the landlord,)r
thecompaA is invalid; becaule fuch a ftipulation is a; means of de»
firo^ng partnerihip; and in cultivation it is eflential that th& produce
of the bod be equally participated between tho(e perfbns.
Each of the partners^ln a contraft either of ceciprocalpartnerl&ip or Ether ptl^
of partnerihip in aftual ilock, isat liberty to give bis ibck in the manner S^JSSdJ
of afios^/; becaufe it is cuftomary fa todo in coolra&s of partner&ip; *^^^^^
and alib^ becaufe either partner is at liberty to hire any periim to ^ ^
work for the acqoifitioaof pmfit; and as the acquifttion of profit
without aay return b itill leis objedionaUcthan biring with the &me
^iew, he is confequently authorifed to adopt the other mode 0 fir^
tiori. In the fame manner alfo,. dther of them b at liberty Co lodge ortodpirw
ibb cajutal as a depofit, as thb is cuilomajy, and ibmetimtt neceffiuy, * ^M^<
among merchants. £ach of them b alfo at liberty to give hb capiod or hma k
in the way of Madbiiat^ becaufe, as Mmdrlbat b fubordinate to ^^g?^
partnerihip either fy reciprocity or in tn^Cr it follows that % hfMmSrtC
contract of partnedbg comprehenda jMndri6a(^ li b recorded firom
5 Haneefk
3«> PARTNERSHIP. Boos XIV.
Hdneefa that a partner has not this in his power, becaufe MusAribat
is alfe a mode of partnerfhip. The former opinion^ however, is ac-
cording to the Mabfiot^ and is the moft approved, hcczxXt partnerjl^
is not the defign of a contra^ oiMniriimt^ the ooiy view in it being
the acquifition of profit. It is therefore lawful to give the capital in
the way of Moauiriiat^ in the fame manner as it is lawful for the pro-
prietor of the (bck to hire a labourer with wages. It is lawfiaU in-
deed, in ^fupcrhr degree, becaufe, where the Mo%m6 manages^ ind
no profit is acquired, there are no wages owing to him from the pro-
prietor of the ftock, whereas, in a ca(e of hire, where the hired per-
fon manages the ftock and no profit is acquired, waga ^^ neverthe-
IcTs due to him from the hirer. It is otherwife with reipeft to a
contract of partnerjhif^ for neither party is at liberty to engage in
fuch a contraA with a third perfon, with regard to the capital, be-
caufe a thing cannot be a dependant of a funilar thing.
Bitkcrptr^ EiTHER of two partners, by reci^ocity%, or in traffic^ is at
a^^tf M liberty to conftitute a perfon his agent to tranfafi for him, becaule
2m bSdft ^^ appointment of an agent for purchafe and iale is a dependency of
traffic; and contracts of partnerfliip are formed for the purpofe of
traffic It b otherwife with an agent for pwrcbaft^ for he is not at
Eberty to conftitute another perfon his agent, to make the p[urchafe
on his behalf, as the appointment of an agent for purchafe is a parti-
cular central, the end of. which is the acquifition of {otat fpeci*
fied and exiflent article, and a thbg cannot be the dependant of its
fimilar.
lidipirtacr Th£ pofleflion of each of two partners, hy nciprochy or in
Ibi^iatht '^6^^« ov^r ^he partnerfliip ftock, is confidered a the poilefliou of
MAMrcTa a trujl^ fincceach poflefles the property with confent of the proprie-
tor, for this reafon, that he is to give ibmething in lieu of it, in the
fame manner as M'hcre a perfon takes pofleflion of a thing with a view
to purchafe it; (n6t becaufe it is zfkJ^e^ as mfawm^ei) the ftock
is therefore a defbfit.
Book XIV- PARTNERSHIP. 321
Shirkat SiNKAi,«or partncrihip in arts^ (which i$ alio termed ^^^^
SAiriat TaJtoMal*) fignifies where two taylors^ or two dyers ^ (for iu^ttttT^
inftance) become partners, by agreeing to work and to (hare their
earnings in partqerihip; which is lawful, according to our dodlors.
Ziffer and Sbrfei allege that this b unlawful; becaufe the defign of
partnerfliip is a participation of gain between the parties^ and the
partnerihip in quefticm is not calculated to anfwer this end, fmce a
capital is indifpeniable, as partnerihip in profit is founded on partner-
ihip in ftock, (according to theu: teitets, as before let forth,) and in
the cafe in quellion there is no capital. The argun^ent of our dodors
is that the delign of the contraft in queftion is the acqui/itlon tffrc^
fifty ^ which is attainable by each party conftituting the other his
agent; becaufe upon each b<»oming agent on the part of the other
with refpeft to one half, an4 zfrinafd with refpeft to the other half, a
partnerihip is elbblilhed in the property to be acquired. — Unity of It ;t not ic*
trade and of dwelling-place are not eflentials in this fpecies of part« 3ie pLtk/
nerlhip. MSHk and Zj^ • controvert this; for according to them ^J^'JJL
unity of trade and of reiidence are eflentials. or refide ia
Objection. It was before mentioned that, according to Zifftr^ place,
partnerihip in arts is unlawful ; but here it appears that he holds it to
be lawful; -which is a contradidion.
Reply. There are two reports of the opinion of Ziffer upon this
point. That before recited is conformable to one report ; and what is
now mentioned is according to another report*.
— The argument of Zjj^r in fupport of his latter opinion is that if
the parties be of different trades (fuch as where t^iyer and a bleacher
become partners,) each will be at a lofs with refpeft to the bulinefs
undertaken by the other, as that is {lot his trade; the end of part-
nerihip, therefore cannot be obtained: in the iame manner alio, if
their places of refidence be differient, each is at. a lofs with refpeA to
the bufmefs of the other. The argument of our dodors b that the
• LitenHy ^ a paurtnerfiiip by mMSuetleptmtnt.^*
Vol. II. Tt caufe
Ic
321 PARTNERSHIP. Book XIV.
eauft of the lenity of the partnerfliip (namely, the acquifition of
property) is in no way affefted by unity of tradtf and place of rcli-
dence, or the reverfe : — ^it is not affe£led by unity of trade^ or the
reverfe, becaufe an appointment of agency made by agreement » with'
relped'to any bufinefst is approved, whether the perlba who under-
takes it be able to execute it in a good and fufiicient manner, or not at
all, fince the perfon who fb agrees is not uiider aay obligation to per-
form the bufinefs himfelf, but is at liberty to appoint any other perfba
to perform it; and as each party has it in his power thus to appoint
a periba to perform the bufinefs in queftion^ the contra^ is confe-
quently val^ : neither is it affected by unity oi place^ or the reverfe,
becaufe, if one of the two partners work in tme ihop, and the other
m oMtbcr fhop, yet it is evident that no difierence whatever is there-
by created in eflential circumftances^ — ^It is ta be remarked that if, in
pro&u ' the cafe now under confideration, the partners ftipulate to perform
equal labour, and to divide the acquifition arifing from it in three
lots*, the &me is lawful, upon a favourable couftrudion. Analogy
would fuggeft that this is unlawful, becaufe the refponfiUlity is in
proportion to the labour, whence, if this itipulation were admitted,
it woidd induce a profit from a matter concerning wluch there is no
refponfibility:.any excefs to either party, therefore, is unlawful in
the prelent mAance,. in. the fame manner as it is unlawful in zShiriat
JFa^'ooA^ or partnerfliip u/^n credtf^^ (2s fhaU be hereaifter demon-
ftrated.)— The reafon for a more favourable conflru£tion is that what
each of the partners takes he docs not take in the manner of profit i
as gain does not bear the denomination of profit except where the
flock and the gain are of the fame nature; but they are not of the
fame nature in the cafe in queflion, becaufe the capita/^ in this in-
fbnce, is mdujfry^ and the profit fuifioMce ; the property lb acquired^
therefore, is not profit^ but merely a return/or ihduftry: now induflry
is appreciable by means of eflimation; and confcquently, where
• Two lots for one ptrtner, tad one iQt for the QCber.
7 both
Book XIV. PARTNERSHIP. 323
both partners agree to receive a certain fpecific proportioiii fuch pro-
portion is an eftimate of the induftiy of each refpedively : the exc^fs^
therefore, is not unlawful with refpe£l to him in who(e behalf it is
ftipulated. It is otherwife in a partnerfliip nfon cre£t^ becaufe in that
inftance the gain is of the fame ipecies with the capital^ (as both con«
fid offubftancei) and profit is eftaUi/hed where the capital and the
gain are of the fame nature; and as profit, on property concerning
which there is no refpondbility is unlawful, except in a contraft of
Mozdriiatj it follows that it is unlawful in a contract of partnerfhip
upon credit : the cafe in queftion, therefore, is in no refped analogous
to a cafe of partnerfliip upon credit.
Ik a partnerfhip in arts^ what^cr work one partner tgrca to is The mA
incumbent upon him, and alfo upon the other partner, infomuch- ^SSaputZ
that the employer may require the performance of it from dther; and ''* ^"'^
each is entitled to demand payment fr>m the employer for the bufi- oZt' aad
nefs performcid. Upon the employer, alfb, thus paying dther, he is htnft^aa
thereby difcharged of all demands. This is evident where the partner* JE^ffcJ"*
(hip in arts is of a reciprocal nature, (fay both partners being upon aa pqrMot
equality with refpeftto thofe particulars in which equality is requi*
lite in a contract of reciprocity;) — and where the partnerfhip ia
queftion is not of a reciprocal raturt^ but in the manner of a partner*
(hip in traffic^ the fame is admitted, on a ftvouraUe conftniftion,
Analogy would fuggefl otherwife; becaufe the partnerfhip has been
contrafled in ^Mfr^r/ terms, without any mention of Bail; zndiaUis
not one of the articles of a partnerfhip in traffic: it would therefore
follow that the employer is not empowered to require the performance
of the bufineis from either of them indificrently ; and alfb, that they
are not ^0/i& empowered to require payment from the employer;—^
and likewife, that the employer is not difcharged from all demands^
by paying either indifferently. The reafon for a more favourable
conflruftion is that the partnerfhip is an occafion of refponfifaSlity ;
that is, in confequence of the partnerfhip, the petformance of work
T t 2 is
3«4 PARTNERSHIP. Book XIV.
is incumbent upon the parties ; whence anybufihefs engaged in by either
is incumbent upon the other klfor and the other is accordingly entitled
to the payment, as one of them engaging to perform any work
cquaUy af{e£ks the other; for if the other *alfo were not fubje£t to
this obligation,, he would not be entitled to payment: the partner-
(hip in queftion, therefore, is equivalent to a partuerihip by recipn*
cit/f with refpeft to the obligation of work, and the taking pofleffioa
of the payment for iU
Jftnition SuiRKAT Wadjooh, or partnerfhip ufon creSt^ is where two
ft^^^^^ perfims, not bdng poflcilBed of any property, become partners by
^' agreeing, to purchafe goods jointly, upon their perfooal credit*,
(without immediatdy pajring the price) and to felt thenr <ki their
joint account. This i^iecies of partnerfliip is termed H^a^oobf for
thtt reaibn, that no perfim can purchafe articles upon credit but one
ft~f^- poflefled 6f perfonal notoriety \Wij£bit\ among mankind. It may
ii^. *^ lawfully conftitute a fartnerjhip by reciprocity \ bccaufc each partner
may become both bail and agent for the other. Where, therefore,
two peribns, capaUjeof bail, make a purchafe of any article, on con*
dition that it ihall be hel4 between them in equal (barest introducing
the term *^ ty rectprocitf^ into their agreement, it is a contra^ of re*
ciprodty. If, on the other hand, they exprefi their agreement
hierely in general terms, it is a Sbirkat Aindn^ or partnerjhip m
tr^c^ bccaufe when thus generally expreiTed, it is conduced in the
manner of fuch a' partnerihip. The legality of the partnerfliip in
queftion \i according to our dolors. Shafei alleges that it is illegaL
The arguments on both fides have been already xjecited..
In partnerfliip upon credit, each partner is agent on behalf of the
SkScr^ other, with reipeft to what he purchafcs;— becaufe any ad. which
afieds wother is unlawful, except it be performed in virtue cither of
• Anb. WijaiU latenDxi ftrfml fre/Mt^ or mfmetj.
agency
Book XIV. PARTNERSHIP. 335
agency or of authority^ ; and as authority does not esdft in the pre*
ioit infiance» agency is certified.
If the partners agree that what they purchale fhaU be held be* Thepioficor
cween them in equal (hares, and that the profit alfo ihall be equally muaCuT'
divided, it is lawful : but it is not lawful, in fuch a cafe, to ftipulate ^^^S^J^
an excefs of profit to one of thenu If, however, they agree that each in cIm
what they purchafe (hall be held between them in three lots, and that ^^"^"^
the profit alfo (hall be divided into three lots f, it is lawfuL In (hort,
if the profit be in proportion to the right of property it is lawful, but
otherwife not. The reafon of this is that men are aititled to profit
only on account of^ori, management^ or refprnfibility ; thus the pro-
prietor of a ftock is entitled to profit in virtue of the ftock; a ma-
nager in. virtue of his management ; and a mafter arti(an, who em-
ploys a fcholar or apprentice at ^^wages or /i/r^ wages (fen infhnce)
is entitled to the profit arifing from his work in virtue of his refpon-
(ibility for fuch work; — (whence it is that if a per(bn &y to another
^* Tranfaft with your own (lock on condition that the. profit be
^^ mine,** it is unlawful, becaufe in fuch a cafe, no one of the above
particulars exifts.) As men, therefore, are entitled to profit only on
(bme one of the(e three principles, and as, in a partner(hip of credit,
the title to profit is in virtue of re(ponfibility (as aforefiiid,) — and as,
alfo, re(ponfibility attaches in proportion to the right of property in
the thing purchafcd, — it follows that whatever exceeds the proportion
of fuch right of property is a profit upon a thing concerning which
there is no refponfibility. Now the (Hpulation of profit from a thing
concerning which thtre is no refponftbility is not valid except in a
contrad d^ Mosdritat; and a partncr(hip upon credit has not the
property of a contra^ of Moziribat. It is otherwife in a partner(hip
^ Arab. fFUUf^i. Meaning the aittboricy derived from natural or perfimal i^k^.
taAu€tai6(%gUr£MMWupr9fnii§r»
t That ir, two lets to one, and one lot to the other.
m
.3^^ PARTNERSHIP. Book XIV.
nt iraffic^ as that has the property of a contraa ot Mozdrtbut, inafmuch
as each partner m traffic franfaas bufincfs with the ftock of the other
partner, in the fanie manner as a manager tranfads with the ftock
of Hx^ proprktor^ whence a partnerfhip in tn^ is, in effeft, a
MumSribat.
SECTION-
CyiMVALiD Partnerships.
2«Miftfe Partnership is not lawful in wW, grafs^ or game. If, Utitxt-
UkuAdtk^ fore, two perfons enter into a contract of partnerihip with rei^fb to
'■^ fuch articles, and afterwards colleA wood, or grafs^ or kill game in
hunting, the wood or grafs (b coUefled, or the game fo killed, by
dther of them, belongs to him folely, and not to the other partner.
The fame rule holds in cafes where two perfons enter into a contrafb
of partnerihip with reiped to any other articles of a neutral nature,
(fuch as fruit coUefted from the trees of the foreft, which are com-
mon property;) becaufe a contraA of partnerihip comprehends a
commiffion of agency; and the appointment* of an agent l<>r pro-
curing things of a miy/ra/ defcription is null, becaufe the inftru&ions
of a conftituent to this efted are invalid, fince an appointment of
agency fignifies an endowing with authority to tran(aA concerning a
matter originally fubjed to the ads of the cmfiitutnt only, and not of
the agent \ but it is otherwife in the cafe in queftion, as the agent is
here at liberty himfelf to take the neutral article without the inftruc-
tion of his conftituent, and conlequently is' incapable of appearing as
his deputy concerning it. In fliort, a right of property in a neutral
article is eftablifhed only by the ads of taking and putting it in
cuftodyi if, therefore, both partners Uke it jmtfy^ it is equally in
partnerihip
L
Book XIV. PARTNERSHIP. 327
paitnerfliip between them, as they are both equally entitled to it:— ^^^^^^
but if one of them only exert himfelf in taking it, the other doing doaofJ^iMtfy:
nothing, it belongs wholly to the one who ads: if, on the other
hand, one be the chief aSlor^ and the other only an a/Jtftant^ (as where
one plucks the fruit, and the otiier colleSs it, — or, where one both
plucks and gathers it, and the other carries it away,) in this cafe the
afliftant is to receive wages in proportion to his labour. — This is ac-
cording to Mohammed. {Moo Toofaf^Mtgcs that this rule holds only
where the wages do not exceed half the value of the article in quef-
tion ; but tliat, if the wages exceed this, one half of the value only
is paid to the aflifbnt, becaufe, as he had agreed to accept one half
of the article fpecified^ his right fails with refped to any larger pro*
portion.)
Ip one man poflcfs a mule, and another a Majhack^ (or leather P^^in tUt*
bucket, fuch as is ufed in drawing water,) and they enter into a wiiert tke
contraft of partnerfhip in drawing water*,, by agreeing that whatever "ulSVuicm
may be acquired thereby fliall be in partncrfliip between them, fuch ^^if"^-
partnerfliip is invalid,^ the whole acquilition going to the perfbn who
aftually draws the water ; and if this be the owner of the muUf he
owes the other the adequate hire for the huciet ; or, if it be the owner
of the bucket, he owes the other an. adequate hire for the muk. The
reafon of the paitnerfliip being invalid is that it is contradted with
refpeft to an article of a neutral nature, (namely, wafer,) and is
therefore unlawful. The hire of the mule or the Inicket is due, be*
caufc the neutral article (namely t\it. water) becomes the property of
the peribn who drew it ; and as he derives an advantage, under an inr
^ Water is in many ptrts of /Ji^i proqored froai dtrnv-weUs^ funk to a cosfiieraUc
depth. From the edge o( fuch welk % road is coaftnided or cut, going off finoa twttitj
to thirty yardf, in an imRntdpUini and over the weilisereAed xfranuottvfupigct^ fur-
niflied with a pulley, through which a lime runs, having furpended at one, end a large leather
bucket, [Mafiiacki] the other end is faftcned to traces, in which a mule, bullock, or
other animal, moving to and fro* on the inclined load, by this means draws the water.
valid
328 PARTNERSHIP. Book XIV-
valid contract ^^om the property of another perlbn, (namely, from
his muk or his bucht^) it follows that he owes a hire finr the fatne.
Tte profit 10 In jji ^*3f^s ^f invalid partnerfhip, the profit is in proportion to the
muft te in ftock; any ftipulation, therefore, of an excels of profit .to either part-
Sw^todT*^ nerisniilL Accordingly, if the ftock be between the partners in
equal fiares^ and they agree to their profit being In /2r^f hts^ (uch
agreement is null, and the profit muft be equally divided; becaufe, as
the profit which accrues is a dependant of tlie ftock, the degree of it
muft be in proportion to the ftock, in the fame manner as, in a CQntraS:
of cultivation, the* grain which is reaped is a dependant of thcJeAl.
The reaibn of this is that a claim to an excels profit can exift only in
virtue of a previous fpedfic agreement: but in the cafe in queftion
this agreement has become invalid ia confequence of the inifAidity (^
the central of partnerfiiip it/e{f: the daum, cherefiKCt ftmains in
force only in proportion to the capital ftock.
A contna of If One of two partners die, or apoftatize, and be united to a
SndildV foreign country •, the contraA of partnerflnp is annulled;— becaufe
the death or a coutraft of partncrftiip comprehends an appointment of agency,
23lS^. wbich is cflcntial to the exiftence of partnerfliip, for the reafims al-
■^' ready afligned: now agency is annulled by Jeaihi and it is alio
annulled by the circumftance df deiertion to a for^n country during
apoftacy, where the KSzee iftues a decree in confoquence of fuch de-
fertion, becaufe that is equivalent to death,-^as has been already ftiewn
in treating of afojlates: upon the agency ^ therefore, bong annulled,
whether the the contra£t of partnerfhip is alfo annulled. It is alio to be obierved
" Slir<^Sat *«t the furviving partner being aware o£ the deceafe of hb fellow,
event or aoc ^f otherwifc, makes no difference whatever with n£pe& to the dif-
(blution of the partnerftiip; becaufe as, in thecaie in queiHon, the
• Thacii, be cxpttriated bjr t decieeofdie JDbrr, USmtm coiiftinwiirc ef to apoT-
ticy and defotion. (See hJIUuiis^ P- 209.}
furvivor
BOOK XIV: ? A It T N £ R S H I t^. 319
iurVivbr is viituaUjr dtfchargq} from the ageit^ hy the deceaie o(hk
ptrtiiert it b not efiential that he be informed of that event. It is
QtherwKe where one of two partners iresis the contrad of partner-
ihipt for the efieft of fudi a breach depends upon the knowledge of
the other partner, as the ^4§cA is a defigned ^Jiiutm rftbe mUr^O^
SECTION.
It is not lawfiil f<ir either partner to pay the ZaUd upon the Aperfmcta.
t)ther*s property without his permiilion, as the* payment of Zak&t is nprnT'iiU
not a branch of traffic. SSitCTt
If each of the partners give a general pefmiflion lo the othef to Cafeof ««.
pay the Zak&t upon his property, and each (hould afterwards iirft pay vUEbocoVt/
the Zakit upon his own particular (hafe iii the ftock, and then pAy ^^^'
Zak&t upon \i\%fartner\ (hare, in this cafe he who lajl paid the ZeMi
is refponfible, whether he be aware of the other having already paid it
or not. Thb is according to Hanetfa. The two difbiples allege that
he is not refponfible, where he is not aware of that circumikmce*
What is here advanced proceeds upon a fuppofition of each partiler
having paid the Zakdi upon their refpeftive fhares of ^o(S<fucceffivety^
and not all together; for where they have paid it all together, each is
refponfiblc for the othcr*s proportion of it. A correfpondcnt cfiffer-
ence of opinion obtains where any indifferent per (on directs another to
pay the Zakai upon his property^ and the other accordingly pays the
Zak&t upon his property after the perfon who fo directed him
had already paid it; for, according to Haneefa^ the perfon a^ing
under inch dire&ion is refponfible, whether he pay the Zatai
with a knowledge of the above circumffance, or otherwife. The
two difciples, on the other hand, maintain that he is not refpon(ible
\oL,IL U u unlefs
3y>
PARTNERSHIP. Book XIV.
unlefs he pay it, having'a knowledge of that circumibnce, as he has
afted by dircAion, and confequently cannot be held aofweiable.
They admit, indeed, that it may be objeded that what the peribn*
aftiug under fuch direftion pays is not Zakii*^ and confequently he
ought to be refponfiUe: — but to this they reply that the order which
the perfon in queftion received was not in fa£k an order topnyfo much
Zakat, but rather, merely, an order to transfer fo much to the poor,
(ince the payment of adual Zakat is not within his province, as this
is connected with the intention of the principal, and no more can be
required of the perfon fb directed than what is within his province and
ability: — ^the perfon in quedion, therefore, (lands in the fame predi-
cament with one who is direfted to perform facrifice on behalf of
another, in a cafe of detention 7 thus, if a perfon engaged in the cere-
monies of pilgrimage were to £illinto the hands of an enemy, and to
du-ea any other perfon to perform facrifice at the temple on his be-
half» and the other perform facrifice accordingly, after the principal
bad been releafed from the enemy, and had completed his pilgri-
mage, yet he does not bear the lofs-f-, whether be be aware of the de-
tention having ceafed, or otherwifc* The argument oiHaneefu is that
the perfon in quefUon. has been directed '^ to pay Zakat ;** and as
what he pays is not in fzO. Zakat ^ it is evident he has a£ted contrary to
the orders of his principal^ whofe dcfigain giving fuch orders was to
diicharge himfelf from aa obligation incumbent upon him^ (for it is
evident that his fole view in fubjeding himfelf to fuch. an expence is
to ward off the divine anger attending the negleft of Zaidt;) — now,.
as (in the cafe in queflion) this defign has been fully anfwered by the
payment of the principal himfelf ^ It can no longer be fo by the pay-
* Becaure Zakit has been already paid by Hit principalj,znA hence what this perfon pijt
i$ not properly Z^kSt^ but rather gratuity or abm-gift.
t That is to (ay, the expence attending the iacrifice, (although it be infufficient and.
nugatory under fuch acircumllancei) nevertbdcfs falls upon the Mnffvrj not upon thc/ir.
ment
Book XIV. PARTNfeRSHIP. 331
xnent of \i\% fubfiUute^ and hence it follows that the fubftitute is dif'^
charged from his commifiion, whether he be aware or not, becaufc
diis is a t;ir/iM/diicharge, and to that knowledge is not eflentiaU
With refpeft to the cafe of facrifice under a circutnftance of detention^
as adduced by the two difciples, fome in reply to it allege that the
prmciple there advanced is not generally admitted, as concerning that
alfo there is a difference of opinion. Others, agaui, maintain that
there is an efiential difference between that cafe, and the cafe under
confideration. The reafon they give for this difference is, that facri-
fice is not ineumbtnt upon the detained perfbn, as he is permitted to
delay it until his detention fhall ceafe. The payment of Zakit^ on
the other hand, is sncumbcni^ whence the defign in appointing an
agent to pay it is to difcbargt an obligation ; and as this defign is not
fulfilled *, it follows that the agent has no eredit for his payment,
and that what he pays is a wafle and deflruflion of the property of
his principal, for which he is confequently refponfible. The caie-of
facrifice under a circumflance of detention, therefore, is not analo*
gous to the cafe now under confideration, as facrifice in fuch a cir-
cumfhnce is merely lawful but not incumbent ^ ^nd hence the facrifice
performed by the delegate is not to be regarded as a wafle and de-
ftru£lion of the property of his principal, for which reaibn he is not
refponfible.
If one of two partners by reciprocity permit the other partner to Afemdeflnff^,
purchafe a female flave with the partnerfhip flock, and to have carnal Sera^tnla
connexion with her, and the other adk accordingly, in this cafe the ^l^^^l^
flave appertains to the purchafer, and he is not rcfponfible for any the propen/
tiling. This is according to Haneefa. The two difciples allege that LrJko^tii
the other partner is entitled to take half the price of the flave; be- 5[I?J£"^
caufc the purchafer has paid for the flave out of the partnerfhip flock, canjti con-
and confequently his partner has a. right to be repaid his fhare in the hm
* As it has Wen already fulfilled by the payment of the primlp^l hhiftff.
U u a fame
33* PARTNERSHIP. Book XIV.
fame manner a$ iathe parcbafe ofvUluab or rib/i&/«^;—- (that iS| ag,.
where one of two partners by reciprocity purchafea vi&uals or clotb«>
ingy paying the price cxfi of the partnerihip ftoekt the other partner
is entitled to take half the price from the purchafer, fo alio in tb9
cafe iaque^oQ.) The ground upon which this proceeds is that tha
flave in queilion has become the fole and exclufivc property of the
purchaicr beeaufe of the neceffity of legalizing generation; and as
the ^ice is due in proportion to die rigbi offrcpert/f it follows that
the price of the flave is folely and excluiively due from the purchafer^
The Ugument oiHciihcefa is that the flave has fallen into the poflel«
fion of ioib partners^ a certiari^ according to what partnerihip re-*
quires, (for they cannot alter the requifites of partnerihip;) the flave^
therefore, is the property of htbi in the fame manner as if no per*
roiflion had been given : now the fermffiM implies that the perfin
who grants it makes a gift of his fliare to the purchafer; for carnal
connexion is lawful only in virtue of right tffroperty \. and there is no
mode of eibbUfhing that in the prcfent cafe but by gifti hecsjuttfah
cannot be fuppofed on this occafion *» as. the efbblifhment of a right
of property hjfale would be repugnant to the requifites of a contraA
of partnerihip; for if the partner were to fdl his fhare to the pur*
chafer, fliU ibai fhare is in partnerfhip between the two, and doe»
not belong exclutively to the purchafer. His fhare, therefore, is
made the property of the purchaicr by gift implied in the permiflioa
granted to the purchafer to have carnal connexion with the flave.
It is otherwife with refpeft to viffuals and clothings beeaufe as-thefe
are excepted from the contraft tfnecejity^ they are the fble property-
• of the purchafer in virtue of the fpirit of a contrafk of purchafe and
fale; he, therefore, mufl pay half the price thereof to his partner,,
beeaufe he has difcharged a debt due from bi$nftff\f<x the above ar-^
tides] out* of the partnerfliip flock, whereas, in the cafe under con(i«
deratbn the purchafer difcharged a parinefflnp debt, which was.
• Meaning a riN^^ fide from CM psrtQia: ta die oih
5 equally
2odx Xnr. PARTNERSHIP. s33
equally due from iotli pastoiersy for the reafbns already alleg^—
It is to be obfenred that, in the cafe in quefUon, the feller of the Ixttthe ftifer
(lave is at liberty to take the price from either partner, according to |wice fma
all our do&ors, becaufe this price is a debt incurred by an aA of ^^'^^
traffic A contra& of reciprocity, moreover, comprehends bail; and
hence the price of xixtptDc refemUcs (in this refped) the price of
vidiuab or clotblng.
( 334 )
H E D J r A,
BOOK XV^
Of WAKF^ or APPROPRIATIONS*.
Defittltaoi of TXZ^^^* *^ ^'^ primitive fenfe, means detentm. In the language
^]^*J^^ VV of the LAW, (according to Haneefa^) it (ignifies the appro-
aionsrcfpca^ priation of any particular thing in fuch a way that the appropriator*s
^l^* right in it IhaU ftill continue, and the advantage of it go to fome
charitable purpofe, in the manner of a loan. Some give it as the
4Dpinion of Haneefa that, as the advantage of a thing is a nonentity,
and as the alms-gift of a nonentity is invalid, if follows that appro^
priation is utterly illegal f • It is, moreover, recorded in the Mab^
foot that Haneefa held appropriation to be invalid. The moft ap-
proved authorities, however, declare it to be valid according to him ;
but fince (like a loffn) it is not of an abfolutc nature |, the appropri-
* Meantng always rf a ftna ar thwritoVi natwu f Thu is, has no force im Itw.
X That is, it is mi luirocABti*
ator
BookXV. appropriations. 335
ator is held fo be at liberty to refume it, and the Tale or gift of It is
confequently lawful. According to the two dilciples, i^i^figniHes
the appropriation of a particular article, in fuch a manner as fubje^s
it to the rules of divine property, whence the appropriator*s right in it
is extinguiflied, and it becomes z property ofGoT^ by the advantage of
it refultingtohis creatures. — The two difclples, therefore, hold appro-
priation to be abfolute ; and, confequently, that it cannot be refumed,
or difpofed of by gift or fale ; and that inheritance al(b does not obtain
with refpe£t to it. (There is, indeed,, one point upon which the diiciples
differ in opinion : for, according to Aboo Ttiofaf^ the appropriation is
abfolute from the inftant of its execution ; whereas A/^iAammA/hoIds
it to become abfolute only on the delivery of it to a MtH>twaIee^ or pro-
curator*;— as will hereafter appear.) Thus the term JVakf^ in its
literal fenfe, comprehends all that is mentioned both by Harieefa and
by the two difciples. Now, fuch being the cafe, no preference can
be given to the tenets of one party over that of the other, as drawn
from the meaning of the term\ this preference, therefore, muft be
given as drawn from arguments. The arguments of the two difoiples
upon this fubjcft ape twofold: first, when Omar was defirous of
bcftowing in charity the lands of 5/wrfj, the prophet faid to him *« Tou
1* mujlbejlow the actual land itself, in order that if may not re-
** main liable to be either sold or bestowed, and that inherit AKCE
" may not bold in it: — secondly, there is a neceflity for the appro-
priation being abfolute^ in order that the merit of it may refult for ever
to the appropriator; and this neceflity is to be anfwered only by the
appropriator relinquifliing his rigHt in what he appropriates, and de-
dicating it folely to God ; which dedication, as being agreeable to the
LAW, in the {ame manner as that of a mofque, muft therefore be made
in the feme mode. The arguments of Hanrefa concerning^ it are
• Literall)r, a firf§n imhwid with eutUrityi the tcnn pmuraUr \% adopted bj the
tianflator, as being peculiar to the management of a r(liii9ut foundation^ and as diftinfpiifli*
lag this o£ke from.thatof a cmmn ^mt.
various.
it
336 APPROPRIATIONS. Book XV^
\lrious. Fii^sT, the prophet has fiitd ** Property cannot^ rfur the
** deceive ef the proprietor^ hdetmneijrmdhijionan^
:(ia other words^ appropriations are not absolute^ but inherit abl£.)
Sbirrab moreover Ikys *^ the prophet determined the (ale of an appro*
** priation to be 'lawfuU"— which is as much as to fay that ** before
the promulgation <if the law by the holy Mohammed^ (on whom
be tfaie Ueflittg and peace of God) appropriations were absolute;
^* but our LAW has rendered them otherwife.*' — SECOHOLt, the ap-
propnator^s right in the article appropriated muft fiill continue in
tbrce, for this reaibn, that it is lawful for the creatures of God to de«
rive an advantage from it, either by tillage (if it confift of lanJi) or by
refidetice^ (if it conlifl of diveliing-boujesi) iot if no one had any
ri^t in it, any a&s with refped to it would be unlawful, in the fame
manner as widi refped to a mofyue. It is, therefore, evident that x
right of property in it ftill continues: and it is alfo evident that this
right of property muft reft with the appropriaior^ and not with any
^i60r perfbn, as he alone is entitled to expend the revenue arifing fix>m
it upon theobjcAs of the appropriation, and to appoint a procurator
over it : but yet, as the term /i^i^ implies giving in charity j the ufe
of it reiemUes that of a Joan. Thirdly, the appropriator wifhes to
apply the revenue arifing from what he appropriates to feme charitable
purpofe in perfetuity^ wbich is impoflible, unlefs his right of property
in it continue. FouRTfiLTt it is impoffible that the appfopriator*8
right of property in.the^^4^ihould be extinguifhed, during its exift*
encip, without its becoming the property of fome other peribn, as the
LAW does not admit the idea of a thing, during iu exiftence, gomg'
out of the pofleflion of m^ proprietor without falling into the pofieftion
di another proprietor. H^akf^ therefore, in this particular reiemUes a
Sayeeba. {kSeyeeha is a fwiale camel, fet at liberty in purfuanceof a
vow, (as where a man (ays *^ if I return home from this journey,** or,
** recover from this diforder a cert jun female camel of mioe v^Saye^^^
""Utcnily^namiMtoiitaoiairi;. Itm^yhtvUtomAtkmtkttknuufinudo
otmommaffim,
which
BookXV. appropriations. 337
which the owner prohibits himfelf from any further u(e of; in the
fame manner as a Baheera^ or female camel, which, after producing
teA colts, it was cudom'ary, in times of ignorance, then to fet at
liberty, rendering it unlawful to be ufed or eaten.) Appropriation,;
in fliort, refembles the Pagan aft of ietting a camel at liberty, in this
rei!ped, that the thing appropriated does not go out of the right of
property of the proprietor :*— in other words, if a man confUtute his
quadruped a Sayaba^ (till it continues his property; and io alfin i^ ^
perfbn appropriate his lands or quadruped. It is otherwife in a cafe
o( fiimmmi/jlion^ as that is a JereliStan of property. It is otherwife alfb
in the cafe of a mofque^ as that is dedicated purely to God, (whence it
is unlawful to derive any aJvantage from a moique,) whereas, in a cafe
of appropriation, the right of the individual ftill continues in force, and
that, confequently is not dedicated purely to God.
It is reported by Kado$ree^ from Hanetfa^ that the appropriator*s ABe«i^ of
right of property is not extinguifhed^ except where the magiflrate fb profmatc/r
decrees, or where the appropriate himfelf fufpends it upon his de- ^''^^
ceafe, by declaring ** When I die» this houfe is appropriated to fuch a oT^Hc map^
** purpofe,'* (and fo forth.) Ahoa Toofrf alleges that his right of decUntioiior
property is extlnguifhed upon the inftant of his faying *' I have appro- ^^f^*
*' priated ;*'— (and fuch alfo is the opinion oiSbrfei^ becaufe that is
a derelifUon of property^ in the fame manner as manumi/Jiotu Mo^ ^J^^aT^
hammed fiiys that it is not extinguifhed until he appoint a procurator, ^ to a proct-
and deliver it over to him : and decrees are pafled upon this prin-
ciple. The reafbn of this is that the right of God cannot be efh-
bliflied in an appropriated article but by implicatbn, in the confign'-
mentofit to his creature; (as a transfer to the Almighty, who is
himfelf the' proprietor of all things, although it cannot be effcAed
a3ua/fy znd exfre/sfyf yet may be fo^f/^ir^/^'O^it therefore be-
comes fubjed to the rules of divine property dependanify^ and confe-
quently refembles Zai^t and' alms-gift. With refpedt to what is re-
ported from Haneefgf that ^* the appropriator^s right of property is
Vol. II. X X "• cxtinguiflicd
338 APPROPRIATIONS. Book XV^
^' extinguidied by adecrec ofthe magiflrate/'*— our author remarks
that this is approved doArine, as fuch a decree removes all dif-
ference of opinion. With refpcd, however, to what is further re-
ported from him, that " the appropriator's right of property is extin*
** guiihed in coufequence of his fufpeuding that upon his deceaie/^
it is altogether unfounded, as his right of property cannot be extin-
guiihed but by his beflowing the ufe of the article for charitable pur-
^itzin ferpciuity^ in which cafe it is the (ame as a bequeft of perpe-
tual ufufruft : — in this inftance, therefore, his right of property
^ ^^^\f ^^"^^ extinft, and the appropriation is abfolute. It is rdated, ia
crate fixes to the Fatovee Kdtee KAdn^ that judicial degrees are ifTued on the fub-
ajppropra. j^ ^^ appropriations only in cafes where a perfon having appropriated
a particular artile, and delivered it over to a Mootwalet or procurator,
is afterwards dcfirous of refuming it ; and the latter difputes the re**
fumption, on the plea of the appropriation being abfolute ; and they
carry the matter before zK^zeCf who decrees it to be abfolute. — Con-
cerning a cafe where the parties authorife any third perfon to decide
upon this point, and he decides the appropriation to be abfolute, there
fion of a rtfJ' is a difference of opinions it is certaia, however, that fuch a decifion
m doei not j^ ^^^ binding upon the parties,
Cafeofanap. Ip a perfoa make ai^ appropriation upon his death-bed, Tebdvec
n!a^"^pM a ^cp<»'^^ ^^^^9 according to Haneefa^ it flands in the fame predicament
it^ibkJ. withabcqucfl after death, — (that is to fay, is abfolute:) contrary
to an appropriation made during beattbi which v held by Haneefa not
to be of an abfolute nature. The true ftatement, however, is that
the appropriation in queflion is not abfolute^ according to Haneefa i
but it is (Afolute^ according to the two difdpUsi with this diftindion,
however, that the appropriation here treated of is regained as from
the third of the appropriator*s eftate, whereas an appropriation made
during health i& regarded as from the w6ok of the appropriator^s
property,
Ufo»
Book XV. APPROPRIATIONS. 339
Upon an appropriation becoming valid, (that is, abfclute^ accord- The appro,
ing to the various opinions of our dolors, as here ftatcd,-^according to Df nropeny \%
Haneefaj in confequence of the appropriator*s declaration, and the bat^hoata
magiftrate^s fubfequent decree,— -<uid according to Moo Too/of^ by his ^J*"*^?"/*^
iimple declaration,-^and according to Mobananed^ by his declaration anyodierpcr-
and delivery to a procurator,) — ^it pai!es out of the pofleflion of the ^*
appropriator; but yet it does not become the (nroperty of any cither
perfon; becaufe, ifthb were the cafe, it would foUow that it is not
in a ftate oidetsntton^ but may be fold in the fame manner as other
property; and alfo, becaufe if the peribn or perfbns to whom it is
afligned were to become the proprietor of it, it would follow that it
could not aftenvards pafs out of his pofleflion in confequence of any
condition flipulated by the former proprietor, — ^whereas it is noi (b,
for if a perfbn were to appropriate a dwellmg^boufe (for inftance) to
the/0or of a particular tribe, and the povertyof any one of theie Were
afterwards removed, the right in it pafles to the others, which it
could not do if this perfbn were a proprietor.
The appropriation of an undefined part or portion of any thing ^ Any niifmi
is lawful, according to Aboo Toofaf. Mohammed ^t^ that an appro- {^ u^
priation of this nature is unlawful ; becaufe, as dSual pojfeffion is held P>'Bpn*<^
by him to be an efTential, (by the procurator taking poflleflion of the
srticb appropriated,) fb, in the fame manner that without which
po&fTion cannot take place is alfo an efTential, namely divifi»i\ and
this can only be in a thing capable of divifion. (With refped, how^
ever, to a thing incapable of divifion, the appropriation of an indefinite
portion of it is held to be legal by Mohammed alfb^ as he Conceives an
analogy between this and a glft^ or charitable donation^ The ground
vpon which the opinion oi Aboo Too/of^ proceeds is, that the feparation
of an indcfinitapart of any thing is indifpenfable to the taking pofleflion
of it ; but as the taking poffejjion is not (according to him) eflential in
• Such ai the ikrj^ or ^fwrA^%f4i% hm^h <^^*
Xx a 4 cafe
34P APPROPRIATIONS. Book XVr
a cafe of appropriation, (whence the means of taking poflfeffion b alio
uneilentialy) it follows that the appropriation of an indefinite part of
any thing is held bj him to be lawful From this rule, however, be
excepts a mofque^ or bwytng-gnmnd^ the appropriation of any undefined
portion of which is unlawful, although it be of an indivifible nature;
becaufe the continuance of a, participation in wy thing is repugnant
to its becoming the ezdufive right of God ; and alfo, becaufe the pre-
fent difcufiion fuppoies the place in queflion to be incajKible of divifion,.
' as being narrow and confined, whcnce.it cannot be divided but by aa
alternate application of it to difierent purpofes, fuch as its being ap*
plied one year to the interment of the dead, and the next year to tU*
l^gc,. oi, at one time to prayer,, and at another time to the keeping,
of hocies^ whick would be fingularly abominable. It is otherwifc
with ttfpxA to the s^ipropiatioa ^ any thing el(c than a mofque or bu^
rying^graundi becauie the appropriation .of an undefined portion of
moy other matter, where it is of an auSvifibk nature, b decreed to be
lawful by all our dofkors, as^it may be hired, (for inflance,} and. the
parties may divide the naU
JJiiJoJSf I» a pcrlbtt appropriate land^, and it (hould afterward* appear
2n7wiMfe that aa indefinite portion of the land (fuck as zJourtA) was the
portiMioru property of another peribn, the appropriation is void with feipeft
J^^^J^j^ to the remainder, alft, according to Mobammedi bceaufe,. In this.
the propertx inftaiioe, the feparationinto inJcfiniu Jroi/lous is aflbdated with the ^
pecte. propr»ition, which b confequently invalid, in the* fiune manner as a
gift. It is otherwife where a donor refumes a part of his gift ;. or
where the beirs of a donor who bad made the gift upon jus death-bed
refume/iw thirds of his- 1^ after his deceafe : for if a perfbn^. upoa
lua death-bed,, make a gift or apprc^riation of the whole of his^ pro-
• hfA.^'kUri neuitiv S17 immoveable prapertf ^vliaievrr, w&eAer kHitoLUm^
wuBts. Zhnam is the tcm ia Ae Pfr/oM rcitiotH snd die uanflacor. therefoce lenders it
Amfthroyghoiit.
perty.
MtOK.
Book XV. APPROPRIATIONS. 341
perty, and the heirs refume two thirds, ftill the gift or appropriation
are not rendered vend, becaufe, in this inftance, the ieparation into
indefinite divifioQS is yi^rv^r/rff/y and not affociatedi thatis, at the
time of the g^ or appropriation the article was not divided into unde-
fined portions, but became fo afterwards. If, however, it (hould
appear that another is entitled to a portion of the land, of a J^cific
and not an undeftud i!at\3Xt in this cafe the appropriation is not void
with refped to tke remainder, becaufe of no indefinite divifion exift*
ing in thisinflance: and gift&and charitable donations are alfo fubjeft
to the iame analogy..
An appropriation is not complete^accorcfing to Hasieefa and MoAam^ The afia»6t
medf unle& the appropriator deftine its ultimate application to objefts d^|^^^*
not liable td become extind ; as where^ for infiance, a%nan defHnes tl*^!^**'
its application ultimately to the u(e of the foar^ (by faying ^ I appro-
^^ priate this to fuch a perfon, and after bim Co the /Mr/') — ^becaufe
thefe never become extind. ^tdo To^^.maintdns that where the
appropriator names an otjed liable to termination (as if he were to
iay ^^ I have appropriated this to Zeyd^) it is valid, and after the death-
£iZeyd It pafles, as an appropriation, to the poor, although the ap-
propriator had not named them. The argument of Haneefa and Aib*
^mifs^^upon this point is that appropriation requires an extmffim of
right of property, without a transjer of it; and as this, like manu-
jBrfffoff, is of a perpetual nature, it follows that if a thing be appropriated
to a finite obje£k, the appropriation is imperfed; whence it is that aa
appropriation is rendered void by makbg it tempordryi^ in the fame
manner as zfale is made void by limiting its duration..
Objection. — This argument of JE&iirg^ that the right of pro*
perty becomes extinfi without ^^ a transfer of it,"** contradi£b what
was formerly fiud, that, ^ according to Haneefij in appropriation the
^^ rig^t of property b net extinguifhed.**
Reply.— There are two reports from Haneefa upon this futgeft..
One of them is that which was before flated. Another makes the
8 opinioa
342 APPROPRIATION- Bo6kXIV,
opinion of Haneefd to agree with that of Mobammti. Some alio
allege, in reply to this objeAion, that what is here advanced from him
proceeds upon a fuppofition of the magiftrate havingdecreed the ap->
propriation to be abfilute^ under which circumftance it pafles out of
the pofleiHon of the appropriator according to all our do£tors.
-^The argument of Almo Toofaf\& that the defign of the appropriator
is to perform an aft of piety acceptable to God ; and this is fully an-*
fwered in either cafe ; becaufe piety on ibme occafiims may confift in
the appropriation of an article to a termnable objefk, — and it may at
other times confift in the appropriation of a thing to an /^terminable
objed; — the appropriation,- therefore, is equally valid in both in-
ftauces. Now ibme iay Utial perpetuity is eflentbl to it. Ab(» Taopsf^
however, does not confider the. mention of perpetuity as an eflendal,
as the terms appropriation or charity do clearly argue thus much, ac-
cording to what was before advanced, that V Appropriation, like ma-
:*' numiffion, (x^AtA ajt extinSion of a right of (voperty without a
'^ /ra»i/rr of that right/' According to Mobammed^ on the other
hand, the mention of perpetuity is an eflential ; becaufe appropriation
is a charitable donation of the u& of a thing, or oi adual produft ; and
.as thofe are Ibmetimes temporary and fomedm^ perpetual, the gei^
ral mention of it cannot be underftood as a perpetuation : it is there-
fore indiipen&ble that perpetuity be exprefsly mentioned.
^^F^i- ^^^ appropriation of land b lawful; becauie feveral of the pro»
w$vimUe, phet's Companions appropriated their lands: t}ut the apjMpriatioQ of
Stprap^. sfuveabk property is altogether unlawful, whether purpofely, or ar a
dependant. This is the opinion otHaneefa., Aboo ToofifiS^ie^ that
if a perfon appropriate lands, together with the cattle and (laves at-
tached to them, it b lawful; and the &me of all inftrumentr of hus-
bandry ; becaufe thofe are all dependants of the (oil .in the fulfilment
of the defign; the appropriation of thefe, therefore^ as dependantt
of the land, is lawful; for many things are ^skarSSiA!^ iependantly^
which are not (opofitivefy ; thus the fide diwinc (for inftance) by it*
BookXv. appropriation: 343
ftlfvs, unhwfulf whereas, ^ihng vntb Umi it is lawfali and in the
iame manner the appropriation of the beam of a houie is unUwfuU
whereas abmg vntb the honfe it is dearly legal. The opinion of
lAohammi^ alfb, accords with that of Aboo T^ofafvx this point,
becaufe as he holds the appropriation of moveables to be hwful
merely in virtue of the appropriator*s declaration,, it follows that he
admits the appropriation of them as a dtfcniant to be legal afortioru
Mobanmed is alio of opinion that if a perfim appropriate borfes^ cmmls%
or armsj to carry on war againft infidels, it is lawful; — in which
opinion^ (as lawyers report,) jUtoo jT^/S/^coiQcides with him« This
proceeds upon a £ivoufable conffandion ; for analogy would fuggeft
that fuch an appropriation is unlawful^ for the reafons already alleged.
The reafon for a more fiivourable conftru&ion, however, is that the
prophet, once faid ^' KhAlid bos a^prafriaied bis horsb smd armour
^^ in tbe way g/" God;— and Tblliha bos apfrafriaied bis horse m
'^ tbe Wiy £/*GoD ^/*— According to Mobamnud^ the appropriation is
lawful of all moveables, the appropriation of which is coomionly
pradifed, {uch 2&fpades^Jbwels^ axes^ faws^. planks^ coffins (and their
appendages)^aiir or brazen vejfels^ and books:, but according to jttoa
Ti^^it is unlawful; becaufe analogy cannot be abandoned but on
the ezpreis authority of the facred writings ; and as borfes and armour
only are there mentk»ed, the admiffion muft be reftricled accordingly.
Mobasnmed fays that anabgy may be abandoned on account of utiRtj/^
(as in arts or mata^aSures^ for inftance;) and utility exifts in the ar-
ticles in queftion. It is, moreover,, recorded of Naffeer Bm Tebu
that he appropriated his books, as conceiving that to be anabgous to
the appropriation <^ a Koran: (in other words, as the appropriation
of a Koran is hwful, lb alio is the appropriation df any olher book :)
and this is approved, becaufe other books as well as Korans are kept
for the purpofe of roidmg and inftru^on. Moft lawyers have paflU
decrees according to the opinion d[ MdMomnedm this particular. It
b written in the FatSeote^Kha-KMn that there is a dificrence of opl-
nioa
3U APPROPRIATIONS. BoocXV.
nion bAweca the Eldtn concerning the appropriatkm of hoofcti —
Fikkea-Jiboo-id-Seyb^^ however, holds it to be lawful; and 'decrees
pafs accordingly.
JJ[j5»5r It is not lawful to appropriate moveables, the appropriation of
wddcf ttt which b tmufual or uncommon, according to our do^rs. Sbrfii
cdtiamuj it alleges that the appropriation is lawful of every thing which admits of
■■^^ the ufe without a deftruftion of the fubjeft, or of every thing hw-
fuUy £deable, becau(e fuch articles as admit ufufrud reiemUe /am/,
horfeSf or arms. The argument of our do£tors t» that appix)priation
requires perpetuity^ according.to what has been already ftated ; and
this cannot ezift in moveables^ (ince thefe are not of a lifting nature:
aiudogy therefore fuggefts that the appropriation of moveables in genera/
is unlawful :^t is admitted, however, in ibme articles, (although con-
traiy to analogy,) becauie of the traditions already reoorded,<-«and in
other articles (fuch as axes^ Jaws^ and {o forth,) bccaufe of ntWiy:
but the ai^ropriation of furniture, clothes, and flaves, is unlawful, as
bemg contrary to the fuggeftions of analogy, beOiufe they have nei*
ther tradition nor utility to fupport the legality, and therefore reiemble
Jirms and deenars. With refped to what Sbifei has advanced that
" thole articles are analogous to lands ^ borfes^ and a/iroirr,** we reply
that no analogy can be admitted between them ; bccaufe land endures
perpetually; andhorfes and armour are inftruments of waragainft
infidels, which is among the highcft religious obligations, whence the
property of piety exifts in the appropriation of thefe articles in a much
ftronger degree than In the appropriation of other moveables ;<--*the
analogy, therefore, is not allowed.
ii« tppiopri* Upon an appropriation becoming valid and abfblute, the fale or
hT/M^T '™^sfer of the thing appropriated is unlawful, according to all lawyers :
trM^aredi the transfer is unhwful, bccaufe of a faying of the prophet, " Be-
^^ Jlaw the ACTUAL land itself incharity^ in fuch a numner that
•* itfialino Imger befaleaile nor inheritable. An appropriation, there-
fore.
BookXV. APPROPRIATIONS- 345
fore, is incapable of (ale or transfcTt upon becoming valid and ablb«
lute. If, however, the appropriation confift of an undefined part of ^^J^^
any things and (in conformity with the doftrine of jttoc Tcof^ be- wii« itcoa*
come abfolute, and the partner require it to be divided off, fuch divi« ^i^fiMi^ir«r
fion is lawful; becaufe Mvi/lm tmi^Sucsftparaiian and SJUnakn. In ^»V*
all things, indeed, except thole which are computable by wdght or
meafure, exchange chiefly prevails: in apfropriatkn^ however, a
fuperior regard is hkd to ieparation and diftin£tion, in order that the
appropriation may be valid : the dividing it oflT, therefore, is not to be
regarded in thel^t of afale or transfer, and is coniequently kgaL
If a pcrfon appropriate his (hare in partneirfliip lands, be muft
divide it otTand detach it from thofo of lus partner; becaufe he alone
has authority to do this during his life, or his executor, after hb de-
ceafc. If, on the other hand, a peribn appropriate the haff (for in-
fiance) oi his ewn land, in this cafe the Kdue is to divide it off, and
alienate it from the appropriator: — (or the appropriator may fell one
half (for inftance) of his land to any other per^, and then <£vide off
the portion appropriaited and alienate it from that perfon, and after-
wards repurchafe the remainder from the purchifer^ :) — ^for the appro-
priator is not at liberty himfelf to divide off the portion of hmd which
he has appropriated, or to feparate it ftom that portion which he hfs
noi appropriated, becaufe om perfon is incapable of ifti/ij/E'^ making a
divifion and thus giving to bimfe^^ fince divifiou can tsdLC place on^
between tnvtu
If, in dividing offappropriated land, any ^tfiSMT/ occurs, hcdtsf^f-
a perloti appropriates 1^ ihare in partnerfliip land^ and he and his SmmiiIim
partner accordingly make a divifion of the land, and the ihare of one ff^^jf^
of them proves defeflive, and the other makes up the difference by a afpyiaiat
payment in money,) it is unlawful, where this bahnce is paid to the ;f,^^^i*£
« Thisismerelysi&v-r/, rordiepttipofeofobfiatinsl^o^
Vol. IL Y v apfro^iat9r^
346 APPRO P«.IATIONS. Book XV.
ff|^{7^^' ^^^/rM/ar,as the £de of an appropriated artidebui^
ticqppiopri. is the afpr^iator who pays the halancey it is lawful, and what he
gets in return is his property ;—if» therefore, he bedefirous of having
it divided off from the part he has appropriated, he nraft r^ the
matter to the Kdxee^ in order that he may iqante the- portion
appropriated from what he [the appropriator] gets in ittnm for the
bahnce.
ne income j^ j^ incumbent that the income of an qipropriation be in die
mauoa«ttft firft inftance expended in the repairs^ of it, whether the appropri-
i^nl^%t ^t<>f <^y b^v^ ftipuhted this or not ; becaule his defign was that the
^^*"^ in ^come ihould ferve as a perpetual fund; and as a perpetual income
at in repair; cannot be drawn from the article appropriated unlefs it be prelerved
in continual repair, that is a neceflaty attendant upon it; and alfe,
becaule all acquifition muft be attended with expence, — (in odier
word^,* he who enjoys the profit muft al(b bear the lois.)— In ihbrt,
upon the perfon to whom the advantage of a thing accrues mad reft'
the inconveniencies attending it ; and fuch being the caie^ it follows
that the repair of an appropriation refembks the fubfiftence of a Have
whofe iervice has been bequeathed to any one, for the iiibfiftence of
fuch flave refts upon the legatee of ufufruS. If, therefore, the ap-
propriation be to the /O0r, and the requifition of repairs from them be
impdSible, (becaufe of the appropriation itfelf being their ible de-
pendahce,) the repairs muft be afibrded out of the income arifing from
w^Aea^ it. If, however, the appropriation be to fome particular peribn, ia
^^!^t^&^ the firft inftance, and after him to the poor, the repairs are in this pie
UmSuSt* due out of that peribn^s property, (but he is at liberty to fumiih the
^ rcpaii9| means out of whatever part of his property he chooicfet) during ^
life; and in this cafe no part of the income is laid out in repttrs, be-*
• Arab. Tmeer: mcaiungi tbi fmitrn^ « fUxi hUuMe^ by iMmHim^ if ft W
bmd, or by retuiUuig^ &c. ifit be i^^A
cauie
B<K)kXV. appropriations. 347
ctule the requifition from the perfon who enjoys tks benefit is in fuch ^
infiance poffiUe, fince he is fpectfied and known* It is to be under- aeg^e, onif.
Aoodt however, that the repairs are to be made out of the property, Xc^^!
only infucha degree as may be requifite to preferve it in the ftate in ferve hm h$
wluchit was appropiiated: if, dfe, it faU to ruin [or run wafie] it is ^^
to be teftored to the fiate in which it was appropriated, becaufe the
income of it lAras made over to others, and was to be derived from it
asim THAT ^4tfr, and ntitasin any/kferiorfia/ei and as fuch mcomc
is the right of him to'whofe ufe it is appropriated, it is not lawful,
without his pemiiffion, to expend it in repairs to a degree beyond the
original flate of the iappropriatiou^ Some are alio of opinion that the
fiune rule obtains where the appropriadoa is to the poor at large^ ^nd
not to w^ particular inSvidital^'^ihzl is to fay, the income is not to
be expended in repairs beyond the original fiate of the approprtatioo.
Others allege that this is lawful. The former, however, is the
better Ofnnioo.; becaufe the income arifing from an appropriation is
expended in the repairs of it only from the necclfity of preferving it
as it was origtnaUy, and there is no neceflity for repairs beyond what
nay iisffice £or this purpole.
If a perion appropriate a Imifey with this condition, that his^ or The .
any other perfon (hall refide therein during life, the repairs are in- incmabeat*'*
combent upon him who has the right to inhabit it, becaufe be who ^^* '''.
enjoys the profit muft alio bear the lofs, (as has been already ftated,) /Mr/rt^'
and the cafe coniequently refemUes the fubfifience of a flave whofe ^^'
fervice has been bequeathed to any pedbn by his mafier« If, ther^ jSSuSe
fore, the perfon^in qoeftion refufe or negleft to repair the houfe, or be M|iftf»u
iQcapabk of fo nlobg, from poverty, the magiftrtte muft in this caftf |||!|^^
kcit, andpiovidefbrtherepatfsout of therenti and mttft return it '^^^^
to him upon the repura being completed i becaufe, by this means at- SemtT*
tentionis paid to the rights both of the appropriator and of thoperibn
to fhofe ufe it is appropriated", fince, if it wete not duly repaired, the
tenement %vould be loft, and the rights of both wouU beconfequcntlv^
Yy 2 dc(hroyed;
348 APPROPRIATIONS. Boor XV/
dcftroyed; the repair muft therefore be provided out of the rent*
cim^f iTiioc ^ ^^^^^ '^^ '^^ rights of the parties may be (ecured. It is to be ob»
Krae loany ferved, however, dbat where the perfbn to whom the article is ap-
'*'^^' propriated r^ujes to make the repurs, he b not to be compelhJ^ becaufe
the repairs would be at hislofs^ his cafe bong the fame as tiut of the
proprietor of the feed, in a oontraft c£ cultivation^ who, if he re&ie
to cultivate the land, is not liable to any compulfion, as the cultivatbn
cannot be effedled without the loft of his property, namely the SaiL
Objection. — ^Upon the occupant refufmg to make the repursv
it would appear that the magiftrate flioutd not return the houie to him
after the repairs are completed; becaufe, as he dius aflented to the
deftrufUon of his right, any attention to that; is unneceflaiy.
Refly. — ^The refuial of the occupant to repair the houie does
not argue his aflent to the deftruftion of hb right, as there b a doubt
with n(pt€t to the motiw of his refo&l, fince it is poilible, that he has
refuied merely on account of the expence to his property; his right,
therefore, is not deftroyed, becaufe of the doubt.
Hr'hTwiSr *^^' ^ proper to ofaferve that it is not lawful for the occupant to let
hut tlM M- the houie, fince he is not the frpprktwr. The magifiratc^ on the
iV^^* contrary, pofleffi^s a general power^ as bdng the agent of the com-
muttity^
Pgyd mi^ Such buibfings or materiab of an appropriation as become da-
bs aMfer^ maged or ui^efi, muft be employed by the magiftrate in the repairs
'^** of it» where neceffiuy ; and if thefe be not immediately neceilaiy , he
muft keep the articles in queition until fuch time as occafion offers,
when he muft employ them in making the neceilary repairs; as re-
pairs are required from time to time, in order that the* appropriation
fliay be continually preferved, and the defign of the apprc^'uttor an-
fwered. If the materials of the decayed place be damaged fo much as to
render it imprafticable to empby them in the repairs, (by the timbers
bdag hrokent for inftance,) it is incumbent on the magiftrate to fdl
themt and expend the price in fuch repaint but it is not lawful for
5 him
Book XV. APPROPRIATIONS 349
htm to give them to the occupants^ becaufe the timbers, and Co forth,
are coolHtoeot parts of the a^ual appropriation, in which no peribn
has any ri^^t,— their rig^t bong merdjr to the m/c^ and not to the
thing itfelf.
If a per(bn impropriate an Awji (for inftance,) with t referveof the O^ofappro.
income to his own u(e during life, and after his death to go to the r^l^rre^ef
poor, this b kwfulr according to jlioo Ttfo/af. Our author remarks JJl^^^jJ^
that this is deemed lawful bf Aho Too/of ; but that, judgingfrom the Aumg Uft»
opimon of A&bmmudf it is unlawfol;— and fuch is the opbioa of
EEUal KAuemASA^a refpe6Bng it. Some allege that the difference
between j1io9 Tcdfafmd MoUmmed yj^om this point is occaiioned by
thdr difierence of opinion concerning the neceffity of amfigmnenti
for, acconfing to Mobanimed^ the configument of the appropriation to
the Moatwa/eef or procurator, is an eflential, and confequently it is
unlawful for the appropriator to re&rve the income to himielf : ac«
cording to A6eo Tiofiiff on the contrary, thb is lawful, as he does
not hoid the confignmeot to a procurator to be an eflentiaL Others,
again, allege that their diffiu'cnce upon this point is not occaiioned h|f
their difierence upon any other point, but is merely an orig^uI dif«
fcrence of opinion with refpeft to the prefent cafe itielf. This
£fference of opinion between the di(ciples fubfifls in every cafe, that
b, whether the appropriator referve the wboie or a part only of the
intome.to himfelf durbg life, and after hb death to go to the poor. If,
alio, the appropriator rderve the whole or part of the income fiom
hb appropriation to the ufe of hb Am-fVaiids^ or hb ModMtrs^ during
thor Uvea, and after thdr deaths defline it to the poor; iboie fey that
thb b bwfoi aodbrding to all our doAocs. Others, however, main^
tain that, in thb inflance alfe, the above difierence of ofWHoa obtainsi
juid this b approved, becaufe his referving the income. to ihcir ufe for
* their lives is equivalent to hb referving it to iftii oum ufe. The argu«
ment in fevour ofMabammcd't opinion b that appropriitian b a^tf*
tm/MS aO^xSketcd in the transfer of a piopeity to GoD^ by delivering
over
Ijfo ABPROPHXATIOKS. B6toic KIT.
ovtt the tiling appropriated to a M6oMfalee or pracurAtor ; (for a tranafef
to the Ahn^QTy who is himielf the proprietor of all things, although
it caonoe be t£ki&nSia3uaUy and exfrefsfy^ yet may be fo dtfenJantlyi)
and therefendng of the whole or part of the income arifing from it to
his own tt(e is repugnant to thb, becaufe* the delivery cannot be
made to /Mififf.^^Thc cafe, therdbie, refembles .the referve of an
4ifaf-^«— and alio the iderve of a part of a mofque:-i^Kn other
wotds, if aperfen were to aflign certain property to the poor, ftipu-
being at die fime time» that his lig^t ia part of it ihonld continuei
the alms under fuch a condition are unlawful ;-*-or, if the founder of
a molque iUpulate that his ri^t in a part of the moique (hall cooti-
Que, this oppofes the legality of the whole foundation ; "andfb alfi> in
the cafe in quelHon* The arguments of jfi^o Trnfiffxprnt this point
are threefold. FiftSTf the prophet was aocofiomed himielf to coq«
fiimc the revenue ariiing fiom what he had appropriated* Now the
u(e would not at any rate be lawfulf unleft the appropriator had previ*
oufly iHpolated it for himielf at the dme of appropriation ; the pro*
phet ctefuming the revenuct therefbrct argues that it is lawful for an
appropnator to rderve that to his own ufe. SBCoitDLT, 4^rafri^
^im imjdies the owner of a property deftrojring his rig^t in that pro-
perty by a transfer of it to GoDfUtider ibme pious inteatioo, {n was
formerly iftatedi) andfuch being the cafo, wheie an appropriator leferves
apart or the whok of the revenuearifing from what he appropriates to ^^
own uie, it follows that, in fo doing, he refeiyes to himil^a th^
mtJk^fr9pirty0fGoDf (M/thatherdervestohinifUfwhatisi&u^smf;)
and a perfim^s refermg to bimfelf a thing which is the property of
OoB is hiwful; thus, if a man build a ^armkuifora^ or cooftru^k a
leferroifv or give ground for a buriaKpIaoe, reifarving to JUafii^ the
fight of refiding in die cmmum/ira^ or oF drinking water out.of the
refenmr, or of interment in the burial-place, itis lawful} and fo like-
wifo m the cafo in queftion^i^THiRDLY, the defign^ in appropria*
tion,is the performance of an a£k« of piety: and piety is confiflent
irith die cifcomfiaoce of a perloa reforvingdie revenue to his own
5 "^^»
BookXV. appropriations. 3SI
ufc, as the prophet has fad " A man giving ufuhfijlince U HiMiEL* it
" ^WJf^ ALMS*.
If the appropriator refcrveto himfelf a right of changing the lands «"• ^ •^
he appropriates for any other lands, at pleafure, it is.lawful, accord* ben^ to
ing to Aboo Toofaf. Mohammed maintains that the appropriation it- ^^§1 ^
felf is valid, but that the condition referved is void ; becaufe the con*
dition does not prevent an extindion of right of property ; and the ap-
propriation is confequently complete, becaoit of the extinction of this
right ; but the ctmdiftm^ as beitig Invalid, is void, in the fame manner
as thereferve of a right of change, in the foundation of a mofque„
b void.
If the approprhtor rcferve to himfelf a right of option with «^.witlitfei.
refpeft to his appropriation, for three days, by faying (for infhnce) rigliKor^-^
" I appropriate this houfe to fuch and fuch purpofes, with this con- ^^»
" dition, that I (hall have a right of option for three days;" accord-
iiig to Aboo To^y both the appropriation and the condition are lawful.
According to Mohammed^ on the contrary, the appropriation is null.
I'heir difference of opinion upon this point originates in the difference
ti their doftrine refpcding a referve of the revenue of an appropria-
tion to the ufe of the afprofrlator: for as, according to Aboo Toofrfy
an appropriator may lawfully rcfcrve to his own ufe, during life, the
revenue arifuig from what he appropriates, it follows that he deenas-
it lawful that the appropriator referve a right of option for three
days, for the purpofe of conlideration. Mobammed^ on the other
hand, holds that the pofTedion of a Mootwalee or procurator, is aa
eflential, and as a referve of option prevents pofleilion from heing
• Ai v^ere (for tnlbnce} a mm appfopriitei thi wb§U oThU propertji thus reducing
himfelf to poverty^ in which cafe the charhj it at effeAuat undi refpeft to him (where he
iieceilarily refervei a fuficiency from the prodiiA for bit own fyftcnaace) at with rafped to
completeljf
35* APPROPRIATIONS. Book XV.
£ompletdy Uken^ it Mows that, according to him, the appropriation
is void. An appropriation, moreover, is not complete without the will
of the appropriator ; and as, where he makes a reierve of option, this
cannot be afcertained, it follows that the appropriadon is void; and
being once voiJ^ its validity caxmot afterwaids be reftored by the con-
dition ceafmg to operate.
ft re*
firveofMif ^' ^ pcrfim appropriate land, with a reierve of his authority over
w^. it, it is lawful, according to jUoo 3 oq/^— Our author remarks that Ka^
doarce has ezpreisly declared this. Such alfo is the dodrine of M7-
W: and it is, indeed, the generally received opinion* ££^partica«
larly mentions it in treating of appropriations. Some do&ors allege,
that if the appropriator particularly ftipulate a rcfervation of authority
over the lands, this authority remains to him accordingly; but not
junlefs it be particularly fiipulated by him. Our modem doctors,
however, coniidcr it as very doubtful whether this be an opinion of
Mohammed^ becaufe it is a tenet of his that delivery into the hands of
a procurator is eflential to the validity of an appropriation; and where
fuch delivery takes place, the appropriator can no longer poflefs any
authority over it. According to the tenets ot Aboo Toofrf^ on the
other hand, the delivery to a procurator is not an ciTential, and confr-
quently the* authority remains with die appropriator, although he
ihould not have fb fiipulated. What was mentioned above, con-
cerning the opinion of Mobammd^ that ** where the delivery to a
** procurator takes place, the appropriator can no longer rcf^iin any
** authority over the appropriation,** applies to a cafe whr«'e the ap-
propriator had not (Hpuhted any reiervation of authority to himlelf at
x\itj!rft\ — ^for if he had ftipulated this at the time of nudcing the ap-
propriation, his authonty is not rendered void by delivery to a procu-
rator; becaufe as Im authority continues where he Aipulates a right of
authority in behalf of M^/A^r, it follows that, wb^ro he ftipulates it
JO hehalf of bimfelf^ it continues a /ortiarL— The arguments in
fuppoct of the opinion of Aboo Tc^qfl (which is the moft ge-
nerally
Bdoc XV. APPROPRIATIONS. 355
nerally received dodhine,) are twofold* f IRST, the ^procurator
enjoys his tutbority, only on behalf of the approriator, in con*
feqiie^ce of his refervatioa; and it is impoflibletha^ the apprp^
priator h|iinfelf flipuld not be pofleiTed of any authority, at the fame
time that another pcrfbn enjoys an authority held on his behalf.-—
Sbcomdly, the appropriator (lands in a nearer relation to what he
appropriates than any other perfon, and it is confequently prc^r that
. he jpofTefs an authority over it ; in the fame manner as where a perfon
builds a moique, in which cafe the bufmefs of repairing it, as well
as the appointment of all the officers, &c. appertains folely to him;
or as where a perfon emancipates a (lave, in. which cafe thtWiOa
appertains folely to him, as he {lands in a nearer relation to the flave
than any other perfon.
If, however, the appropriator who makes this condition, (namely,
a reicrvation of authority to himfclf,) be a perlbn of infamous du-
xa£ler and im worthy of confidence, the magiftrate vcay take the ap»
prcpriation out of bis hands, from a regard to the intereft of the poor ;
in the fame manner as he is at liberty to fufp^ the powers of an ^xr-
cutor^ where he happens to be a perfon of bad character, from a re*
^4 to the intcreft of the orphans. If, alfo, an appropriator conftitute
another t\ic Mo^twalu or procurator, declaring that ^^ the ibvereign
** or magiilrate (hall not take the appropriation out of his charge,**
yet tbe(&aresat Uberty to take it from hini, where he happens to be a
peribn of bad chara&er;---*becauie, as fuch a declaration is lepugaot to
the pr«c;epta of the law, it is confequently void*
SECTION.
If a perlbn build a mofque, his right of property in it is not ex- A nofipais
tingui(hed fo long as he does not feparate it from the reft of his pro* tn^ a«
VoL.II. Z 2 perty.
35* APPROPRIATIONS. Boot X V^
^^S^tk P^X« ^ 6^^'^ ^cnl aoftitffim to people to come and worflitp in k;
tk»ii ^ the but as foon as th6 people in general^ or a fin^ peribn, fijr tliiir
Sf/SX^!!^. prayers in it, his right of property is esttinguiihedi aoooctKog to JSn
A/ w it. M/k. Theutter ieparatkm of it from the reft of tho appr^mfeof^a
property is indifpeniiible, for this realbn, that the mo(que cannot ht»
come dedicated loldy to God until that be eSeOed: and the perfirm«
anee d[ prayer vx it is*a condition ; hecanic* as i confignment (ac«
cording to Hmieefa and MoBammei) is indiipenfable, it fbllowtf dUK
confighrocnt is requifite in this way, fince confignment muft be ear-
ried into execution iq whatever way may be proper to die nature dT
the appropriatbn, and the mode of confignment proper to % moiqoe
is public vktjhip ; or» the peiformance of prayer is a condition^ be*
caufe as it cannot be conceived that God ifrfiPi^^ihould takepofleflfiofi
of a mofquet it follows that that which is the defgn muft fiand as a
fiibftitute for the toting fofefim of it. It is propser in tfiis plaoe to
obferve that \£ zfrtgk ferftm £xy his prayers in th( mofipie it ivSoes«
(according to one report fitxn Hatuefa and M^bOmmedi) becattfe, aiic-
is impoflible that all men ihould perform thdr prajrers in it, the cir«
cum/lance of a fingle individual' perfemoibg hb prayers is the condi-
tion. It is alio reported, from ibmnfa and hhbmmii^ that die
performance of prayer by a wAodr tmptgaim is a neoeffiry condip*
cion, becaufe a naoiqoe is founded with a view to pMk W9rj/k^
Aboo Ti^i^maintains that the founder^s rif^t of property is deftiuyed
immediately upon his fiying '** i confututc this a as^wf .^*— beeaufo
he does not hold conitgoiuent to be a condition, fince accoiding to
him appropriation fignifiei a nlmpajbmmt ^^f rigbi m thipmi^th^
mJhiidwdx the thing appropriated, therefore, appertains folely to
God merely in conlequenoe ^ the rig^^f tba iodividoai ceafing,-«aa
was before demonftrated.
2£r!^J If a perfon ered a building of two ftories, making the under
^■ftWsil ftoiy a moique, and the upper ftory a dwelling, or v/rr vri^Sr,— with
^ plaet. the door of the moique towardt the public road, and detach the
mofl^ue
BftoKXV. APPROPRIATIONS. 355
fnoique from his own property [in the manner before deicribedt] he
is ncfirertheleis at liberty to (ell it ;— or, if he dic^ the mofque is an
kibleritanoe;— ^s the mofque does not, in this inftancc, appertain
foMj to God, becaufe of the individual's right in it ftiU iubfifting*
Thb, however, is only whese the dwdUng has not been conftruAed
naerely for the porpo(es of the mo(qoe; for if it have been con*
ftrufied for the purpofos of the mofque, (as in the great moique at
Jirmfmkm^) the appropriatton is ablblute. Hafm reports, from £b-
uri/tf, that if the lower ftory be a moique, and the upper ibcy a
dwelling, the former continues for ever a mo(qc; becaufo a mqiqoe
is one of thofe thin^ which are defigned to continue in perpetuity,
and an irMSrr ftory anfwers this purpoie better than an uffn' ftory«.
The rn^rr^ of this is reported from Mabammed^ becaufo revtrcMCi as-
indi^penlaUy due to a mofijue, and where an upper Aory is con--
ftni&ed over a moique, for the purpoie either of dwelling in, or of
letting out to hire, this reverence cannot be obferved. It is recorded,,
alio, that when jiboo Toofaf went a^&agiad^ and beheld the narrow
and crowded condition of the place, he held the appropriation to be
lawful and abfokite in either caict— ilfat is, whedier the moique be in
the Ivwtr ilory and the dwelling in the ufper^ or vice V€rfu:^^\»xt thia
he admitted out of neceifity. The fame is recorded dLMohmamii^
yhenbe went to JRat*, and for the lame reafon.
If a perfon convert the center hall of his houic into a mofque,
living goieral admiiiion into it, ftill it does not (bud as a moique^
but remains fitleaUe and inheritable ;-*becaufe a mofque is a place in
which no perfon pofieffes any right of obilruftion;— and wherever &
man has fuch a right with reipefi to the furrounding parts, the iame
muil necei&rily aflS^ the place indofed in them ; this place, there*
'fore, cannot be a mofywi — befidcs, it is neceffiu-ily a thoroughfore
for the £imily, and confequently does vfiH appertain folely to God., k
Zz 2 is
356 APPROPRIATIONS. Book XV.
is reported from Mohammed thzt the center hall of n houfe^ thus con-
ftituted a mofque, cannot afterwards be given away, fold, or tnbe*
rtted : he confequently confiders it to fiand as a mofque ;— -and Abo$
Tocfaf is of the fame opinion ;-*-4)ecaufe, as the perfon in queftion
was dciirous that this place (hould bteome a mofque^ and as it cannot
become {o M'ithout a road, or entrance into it, the road is mcluded
without fpecification, -n the fame manner as in a cafe of bhre.
Cioundap- If a pcrfon appropriate ground for the purpoie of ere£ling a
52^*1*^ mofquc, he cannot afterwards rcfume or fell it, neither can it be in-
*^bc3/or ^^''^'^» becaufe this ground is altogether alienated from the right of
fmUrittd. the individual, and appertains folely to God. The reafi)n of this is
that all things whatever are originaJly the property of the Almighty :
when, therefore, the individual relinquifhes his right in the ground,
it reverts to its original ftate, and his power over it terminates; in the
fame manner as a mafter^s power over a flave terminates in confe*
«|uence of nuuiumiflion, and cannot be refumed.
Am/fMtan- If the place in which a mofque is fituated (hould become deferted
iufiaooeAe^ or umahabited, infbmuch that there is no farther ufe for the mofque,
nj^"*^* no perfon coming to worfhip therein, ftill it continues to fhtnd as a
thc/fwUrr. mo/que (according to Jivo Too/of^) and does not revert to the founder ;
becaufe, as he had put it out of his own poffefHon, it cannot again
become his property. Moba$mned iSlt^ that the mofque again be«
comes the property of the founder, or of his heirs, in cafe of his de**
ceafe ; becaufe he had erected it for the purpofe of public worfhip ; and
as that has ceafed, the mofque is in the fame predicament with the
tnateriak for building a mofque: In other words, if there be no
farther occafion for materiak (fuch as bricks and fo forth) defigned
for the ereftion of a mofque, they revert to the founder, and fo alfo
to the cafe in quefUOm This, however i is a condufion which does
not accord with the doArine of MooT^faf^ for he holds that whece
there is no farther occafion for thcfe materials in the conftruAion of
ibis mofque, they muft be carried to another.
4 I'
Book XV^ APPROPRIATIONS. 357
If a pcrfbii coaftrOd a rcfervoir for public ufc, or a ccer^anftra CaAi of ap.
for traveUerSi or ered a houfe upon the kifidd frontiers for the ac- male to the
commodation of the Mujfulman warriors in their excurfions, (which )!^^/^ ^
is termed a Ribdt^) or. dedicate ground as a burying*place, his right ^np*
of property therein is not extinguiflied until the magiftrate ifliie a
decree to that tfk& ;~«becauie no termination of the proprietors ri^t
ukes place in this inifance^ inibmuch that he may (till lawfully con*
tinue to ufe thofe things, (by reliding in the hou(e or RibSt^ or drink-
ing water out of the refervoir, or interring in the burial-place.) It is
therefore requifite either that the nugiftrate iflue a decree, in order
to complete the alienation, or that the founder himielf refer theap-
propriation to his deceafe, in order that it may (land as a bequejl^ and
become abfblute upon that event ;-*4n the fame manner as in the
caieof an appropriation made to the uie of the poftr. It is otherwife
in the cafe of a mofque, becaufe in that inftance no right of ufufrudl
remains to the founder, as the mofque appertains (blely to God inde**
pendent of any niagtfterial decree. All that is- here advanced is ac*
cprding to Hanetfa. jiboo Yeofaf is of opinion that the per(bn*s
right of property cea(es on the inftant of his faying ^* I have made
** this for fuch and fuch purpofes,** (of refidcnce, interment, or to
forth,) becaufe with him it is a rule that appropriation is abfUute, and
that coniignment is not a condition of it» M^hamuJ maintains that
as fbon as people drink water out of the refervoir, or enter the Cora*
van/era^ or warriors take up their refidence in the Ri64t^ or iiitei^
ment takes place in the burying-ground, the proprietor's right is exv
kinguKhed ; becaufe coniignment (which he holds to be a conation) is
eftabliihed by fuch afts, as the confignment of any thing muft be made
in the mode proper to that thing. It is fuffictent alio, (accocding to
him,) if thefe ads be performed by, or with refpeft tO| only a /li^/e
huEpiduuli becaufe as the wbok cotrnnunity cannot engage in thoie
aOs, regard muft neceflarily be had to them as performed in any (ingk
Inftance. Wells and fountains arc alio fubjed to the fame ruiCi
SS% A P PROPRIATIONS. Book XV
JjT^^ If^ in Ac cafes laft recited, the founder conlign the article to a
a procomor. Mootiimtct OT procurator, fuch cotifigiiineiit is approved, becaufe the
procurator is in the chara&er of a deputy, and the tlQl of the deputy is
the z€l of the principal. With refped to a mofque, indeed, fome allege
that the delivery of it to a procurator is not a complete configiimeut,
becaufe there is no bufinefs for a procurator in a mofque. Others
again fey thatconfignment is eftabliflied, as it is neceflary, in a mofque-,
that there be fome perfon to keep it in order, and lock up the doors ;
the confignment of a mofque, therefore, to a procurator, is approved*
Some alfb aflert that a burying-ground is confidered in the fame light
as a mofque in this particular, becaufe the procurator of a burying**
ground is an office not in ufe. Others, again, maintain that it re-
femUes a refervoir, or €aravtmfcra\ if, therefore, it be delivered to a
procurator, confignmcnt is eftabliihed; becaufe fuch an appointment
is valid although it be contrary to general ufage»
Appioprui- If a man, having a houfe in Mecca^ appropriate it to the accom-
cMfi^Sto xnodation of pilgrims, or, if a perfon, having a houfe in any other
^^F"^^^^ place, appropriate it to the accommodation of the poor, or miendicants,
cnu. or, having a houfe upon the frontiers, dedicate it to the accommoda*
tion of the Mujfulman warriors aiid their cattle, or dedicate the reve-
nue from his lands to the fupport of the warriors in the way of God*,
and make over or confign thofe houfes or lands to the prince, (who
isimpowered to a£t in thofe particulars,) fuch confignmcnt is lawful.
If, therefore, the perfoii in queftion be afterwstfds defirous of revoking^
his appropriation, he cannot lawfully do fo, for the reafens before
alleged. The revenue arifing from the hnds, however, is lawful to
the foar mfy^ and not to the rnrift:— but the ufe of any of the other
articles (fuch as reiidingtn the caravanferuj or drinking water from
the well, fountain, or refervoir») arc lawful to rich and fw^ alike*
^ That 1% mttgid m w§r ^gmnfi ike hJUth.
The
Book XV. APPROPRIATIONS. 359
The reaibns of thisdiitio£lson are twofold. First, people in generalt
tn the appropriatioa of m reveaue, itttend only the rdtef of the needy^
whereas, inthatoftheotherartides, theacoommodatioaQf richand
poor is equally intended. Sboonoly, the arddes of drink and lodg-
ing are requifite, equally, to the rich and to the poor; but in the
artick ofpecuiuafyaffifiance the rich are not neceffitous^ 00 account of
their wesdth^ whereas the poor aic neceffitou&
H^EHArA.
( 3^0 )
H E D J r ji.
BOOK XVI.
OS SALE.
DciaiiiM «r T> E£ Y A, otfaUt in the language of the law figniiies an excbaitg^
"^iwftlf. JD of property for preptrty vitb the foutual confent ^ the forties,
SbirraC\ga^tsp$irc6a/e. The feller is termed B^ee: die purcfaafer
Meo/hterretz die thing toUMooiea: and the price Stmma,
Ou^ I. Introdndtoiy.
Chap. II. Of Optional Conditions.
Chap. m. Of Option sf Infpeaion.
Chap. IV. Of Option of DefeO.
Chap. V. OfmwUiJ, null, and aimmiuile Sales.
Chap. VI. Of.<l<4&,orthe^ij;M»lM»ofSaIes.
Chap.Vn. OfSaksofPre^/andofFrw»^>.
Chap. Vm. OtRM^t, or Ufwy,
Chap. IX. Ot K^svaAJpfeiidagitH
Cha|>.X. Of Claims of Rig^t.
Olup.XL Of jSaSKii Sales.
Book XVI. SALE. 361
Sale is completed by declaration and acceptance, the fpeech of Stie is c<m-
thc Jlr/i fpeaker, of the contrading parties, being termed the Jeclara- \urmu- and'
iion^ and that of the laft fpeaker the acceptance. Thus, if Zeid Aould ^"^^^^
firft (ay to Omar •* I have fold to you a particular article belonging to
>* me for ten dimu^^ and Omar fhould then fay ^^ 1 have bought
** that article belonging to you for the faid price,** the fpeech ofZeiJ
is in that caic termed the declaraiion^ and that of Omar the acceptance.
If, on the contrary, Omar ihould firft fay to Zeid ^^ I have purchafed
^* a particular article belonging to you for ten dirmst^ and Zeid Hiould
then fay ** I have fold the fame to you for the (a^ price,** the (peech
ofOmar is inihis cafe termed the dec/arationf and that of Zr/^ the
acceptance*
It is a neceflary condition that the declaration and acceptance be cxpreilcdci.
expreflcd in the pre/ent or preterite tenfc indicative; for if either fJ^J^J^
be expreffed in the imperative ox future the contrad is incomplete, t^fi^^
Thus, if the feller /hould £iy to the purchafcr, ^* Buy this article be-
longing to me for ten Jirms^^ and the purcbafer reply, ** I have
bought the iaid article for ten £rms^^ — or, if the ieller ihould fay
^' I have fold this article to you for ten ^rffi/,** and the purchafer
reply ** I will purcbafc the faid article for ten ^£!n7i/«**— -in adther
cafe would the fale be binding.
It is to be obferved that in the (ante manner as a £de is eftabliihed «r br aayex.
by the words, " Ibme h^bt;' or ** / bmefild-:' fo alfo is if efta- Xm^
bliftied by any other words cxpreilive of the fame meaning; — as if ««^ *«
either of the parties, for inftance, fhould fay ** I am contented with b^.
** this price,** or " I have given you this article for a certain price,** or
** Take this article for a certain t>nce; becaufe, m (ale, regard is
had to xhcjpirit of the contra£t, and the part'cohr uleqf the words
iougbt znAJo/d is not required ; whence it is that fide may be contracted
fimply by a Tadta or mutual furrender^ where t'le feller gives the
article ibid to the purchafer^ and the pUrctiafer la return ^?cs the
pntfe to the fpUer, without the intcrpofition k£ fpeech. Some have
Vol. II. A a a alleged
4<
362 . SALE. BooKXVh
alleged that this mode of (ide by a mutual furrenier k valid with re-
hcion to things ^ fnudl value; but not othefwiie. It is, Hourever^
certain that fale by a mutual furrender b valid in everjr caie, as it efta«
Uiflies the mutual conlent of the parties.
Objection. It would appear that the iale, as recited above |o be
rendered complete by the words ** t'ake tbis^ &c. b not valid^
as it was before declared to be a neceflary condition that both
declaration and acceptance fiiould be exprefled in the frefent.ocfretente
tenfe indicative, and neither of them in the imperative.
Reply.— In thb cafe the words •• Tiir/* &c. are not of them«
iidves a declaration, but merely indicate the exiAence of a declaration
in the preterite tenfe; — as if the feller had firft fiud *^ I have ibid thb
^ thing,*^ and. were then to add ** Take thb/^ &a for the comnuuid
b conieqiient to the dedaration.
The iccept- Ip either of the parties make a declaration, it b in the power of
aefentd ua- the Other to withhold his acceptance or ref\ilal until the breaking up
inVtiofifc ^^ '^^ meeting; and tlus power b termed the i^/im ^acceptance*.
ncetuif; The reafon of thb b that if fuch a power did uuk ^xftjnone of the
decUntiott parties, it muft necefiarify foHow that the fale would take efiea with-
^^^' out his confcnt. It b to be obfcrved, in .this inftance, that as the de-
claration is not of itfelf efficient to complete die cootraft, die peribn
making the declaration b at Kberty to recede froru it.
or hy Utttr, jp either the buyer or feller ihould fend t letter or a nuffi^e to the
^' '^ ^^'' other, that other has the power of fufpending hb acceptance or re-
fuial until he leave the j^ace or meeting where he recdved fuch
meflage or letter.
mL^h^'tii^ If the purchafer make a declaration of hb purchaie of merchan-
piifchaier difcat a particular price, the feller is not in that cafe entitled to con-
Arue hb acceptance as limited to a part of the merchandife only at a.
• AxA.aiir^at^K0M.
rate
casoocbcrc-
BoocXVL SALE. 363
rate proportionate to the declaration for the whole; — and, in the fiime Ar^«<U ^
mannert if a ieller ihould make a (imilar declaration, the purchnfer i$ %ny^rtkiJat
not at liberty to conftrue his purchafc after that manner; — bccaufe ^!^^.^
this is a deviation from the terms proffered ; and alfo becaufe the de«
clarer has not exprefled his aflcnt thereto. If, however, the perfon '»»^^*^«p-
who makes the declaration (hould fpecify a particular rate, oppofcd ^^^ ^^^ or
to particular parts of the mercliandife, the acceptance may be limited. cXr/^Stlor
Thus if a perfon Ihould fay " I will fell this heap of grain for ten ^*^*
" Srms^^ the purchafer, if he dechre his acceptance, is not in that
cafe at liberty to* limit his purchafe to half the graui for five dhrms ;
whereas, if the feller ihould iay ^* I will fell this grain at the rate of
** one mm for a £nn^^ the purchafer, after declaring his accept-
ance, may limit his purchafe to what quantity he pleafes.
If either a feller or purchafer make a declaration, and ^Me of the Ifthe accept-
parties quit the place before any acceptance be exprefled, the dedara- tx^edk
tionfo made is void- txt^tl
anil.
Whsn the declaration and acceptance are abfoluUly exprefled, Deciaracioa
without any flipulations, the fale becomes binding, and neither party ^^£^'
has the power di retracing unlefs in cafe of a defeft in the goods, or ^"^^^^
their not having been iofpe&ed. According to SLfei^ each of tlie Sertbe*i^
parties poffeffes the cptim rfthe mtttng^^ — (that is, they arc each at ****'*"^-
liberty to retraft until the meeting break up and a feparation take
place,) becaufe of a faying recorded of the prophet ^^ ^be huyitr and
^^ fclUr bos each am option until they fcparatc^^ Our doctors argue that
the diflblution of die contraft, after being confirmed by dedaration
afid acceptance, is an injury to the right of one of the parties ; and
that the tradition quoted by Shrfel alludes to the optim of acceptance^
as already es^lained.
Iff at the time of concluding a contrad of fale, either the mer- Whm the .
than^fe. or the prreCf or both, be prefent and alluded to in it, (as if tic |rk« m
Aaa a ihe
364 SAL E. Book XVI.
a?id'"die ^^^ ^^^^^^ fliould fay " I hare Ibid this wheat to you for thcfc J/rm^'*
faleiscoro- or the purchalcf, ** With thcfc ii;rms now prcfcnt I have purchafed
out'^nrfpcl *• fuch an article belonging to you,") in this cafe the (ale is valid, al-
'^iS^'li?^ though neither the quantity of wheat, (fuch as ^'/o many loads^*' for
smMMi; inftance,) nor the amount of the money (fuch as ^^/o many dirms^^)
be mentioned ; for the reference made to them is fufficient to afcer-
tain the fubje£ts of the contract, and does not leave room for any
difputc.
batamentioa jp^ ^t the timc of Concluding the contrad, the dirms or deenSrs
without a fpe. be not preicnt, fo as to admit of being referred to; in this cafe the
thc>»!*(un. general mention of them, without a fpecification of the numbers or of
a^H^^* the quality^ is not valid; becaufe the delivery of them on the part of
tk« fp«.) is the purchafer is requifite ; and as the general mention of them would ocr
cafion a ccntentioa between the purchafer and feller, (the one wifhing
to give a few and of a bad quality, the other infiftiog on a greater
number and a better quality,) the delivery would therefore become
imprafticable. (It is here proper to obfcrvc that every fpecies of un-
certainty which may prove an occaCon of contention is invalid^ in a
contract of falc.)
Afiyemybt A SALE is valid cither for ready money, or for a future payment,
2Sr*fe^ F^v*<i^^ ^^c period be fixed ; becaufe of the words of the Koran, «« ab-
'^^aT'I " SOLUTE SALE IS LAWFUL ;" and alfo, becaufe there is a tradition of
oficatumoTii the prophet having purchafed a garment from a Jew, and promifing
tSTofiay- ^^ P^y *^® ?^^ ^^ * fixed ftJture period, pledging his coat of mail for
ment. the performance of it. It is indifpeniably requifite, however, that
the period of pyment be fixed, as an uncertainty in this refped might
occafion a contention, and b^ preventive of its execution, fmce the
feller would naturally demand the payment of the prlcc>fiaii, and the
buyer would defire to defer it.
Tbe price A SALE, ftipukting z payment of dlmu in an abfolute manner^
iBttftbeAiptt« i^
Book XVI. SALE. 365
(as if a i^crfon (houU fay " I have fold this for ten Hirms^^*) is valid ; '»^«^.«^ ^w*
provided however that all the different fpccies of ifinns he of the d^mminate
fame value: and in that cafe the purchafcr is entitled to pay the price "'*•
in any of the fpecies hepleafes. — If the different fpecies of dinw he of
different value, the fale then refts upon that which is mod generally in
ufe. Ify however, the different fpecies be of different values^ and ic
be impolfible to afcertain the one of rood common ufe, the ablblute
expreflion of dirms in this cafe renders the fale void, becaufe the price
being thereby rendered uncertain, a contention mufl necef&rily en-
fue : fUll, however^ if the parties choofe to remove the caufe of con-
tention by voluntarily fixbg the rate, the fale is valid.
It is lawful to fell nvbeat^ or other kinds of grain, either by means GndamayU
of meaAires, of capacity, or by conjefture*, provided it be in ex- *JWfor«iief
change for a different kind of grain ; becaufe the prophet has faid, %Suwi fpe.
" Sell any thing that is in exchange for a different kind^ in whatfoever ****•
** tnanneryou pleafe and without regard to the quality ;*• and alfo, becaufe
the uncertainty in this cafe proves no bar to its delivery. It is not law-
ful, however, to fell grain in exchange for Hit fame kind by con*
}e£ture, becaufe this is of an ufbrious nature.
It is lawful, in fale, to ufe the meafure of a particular veffel, of q^^
which the exa£t capacity may not be afccrtained, — or the weight of a be fold by a
particular flone, the exaft weight of which is not afcertained, — be- ^^uptmcht
caufe the uncertainty in this cafe cannot be produftive of contention, ^bidiitiiot
fince either of thefe iititruments of eflimation may be ufed and the colv ftm.
delivery take place immediately after ; and it is not probable that the ^^^^
vef&l or ftone fhould be lofl or deflroyed in the interval between the
meafurement and the delivery, the only cafe in which a contention
cotkld arife. A meafurement of this kind, however, is not allowed in txccpe in a
Sfffim^kt (that is, Where the price is advanced, and the metchandife g^/^ ^^'^
• Mcanifigi by BftlmU*
ddivered
366 SALE. Book XVI.
delivered afterwards,) becaufe in fuch cafe there is a probability of the
veflel or ftone being loft or deftroyed during the long interval that
takes place between the concluiiou of the contrad and the delivery of
the goods ; in which cafe, as the parties had no other criterion (during
the cxiftence of the ftone or veflel) than their tye-Jigbt to judge from^
a contention might afterwards arife as to iHtizfivx or wtght of the
ftone or veflel.
A ikle fixing If a pcrfon fell a heap of grain, by declaring ** I have fold this
Jr«Sl1?iadi " '^^P ^^ ^^^ "^^^ ^^ ^^^ ^^^ ^^^ ^^^""y ^^^^t^ in this cafc (ac-
particular cording to Honctfo) the (ale takes place in one Krfeez only; nor can
tkmofgoods, it extend beyond that quantity, utilefs the feller ftiould explain, in
^^aoltw^^^ the lame meeting, the fum of the/r^»*s.-^The two difciples are of
CO MM iwli opinion that the (ale of the whole is valid in both cafes. The rea-
^'^' foning of Haneefa is that it is impraAicable to extend the fale to the
whole of the heap, becaufe both the goods to be delivered and the
price to be received are in this cafe uncertain : it muft therefore be
conftrued as exifting in one K/i^te%^ the only afcertained quantity.
It is rendered valid, however, wkh refped to the whole quantity, by
the removal of the uncertainty,— that is, by the feller either ex-
plaining' the totals or afceruining it by meafurement during the
meeting. The argument of the two difciples is, that the power of
removing the uncertainty rcfb with the parties: and that the uncer^
tainty^ in this cafe, ought not to be deemed a bar to the validity of
the fale ; in the fame manner as it is not a bar where a perfon fells
meJUtoe out of f«w, leaving it in the option of the purchafer to fix on
ri/Zirr of them*
•»J*W^- I»a periba fay " I have ibid my flock of goats at the rate of one
f^|M»; *^ £rm for each,** the fale in that oUe is altogether invalid,— in other
tuj. ta thif y^ojds, it is not extended even to Me gpat^ — ^according to Hamefai
* A ncafure contaiiuog about fixfj-Jbiir pooads weight.
and
Bd0KX\'I. SALE. 367
2nd ill the fame manner, the fale is altogether invalid if a perlbn fell ||^* >r^
cloth at the rate of one Jirm the yard, without explaining the number ^^^j^^ ^^ *
.of yards; and the fame of every other article, fuch zsnuoaJ^ pots^ or amooncoftlif
the like. — ^The two difciples are of opinion that, in all thefe cafes, dcuUrly ^•
the fide is valid with refpeft to the wbo/e quantity \ becaufe the re- ^^^^^
movalof the uncertainty is in the power of the parties; and alio,
becaufe fuch uncertainty does not prevent the validity of the fale,
as is demonftrated in the preceding cafe. The arguments of Ha-^
neefa in fupport of his opinion are alfo the (ame as thofe advanced by
him in the preceding cafe ; — in which, however, be has admitted the
validity of the fale with refpeft to one iT^n of wheat, becaufe aU
KafeaCz of wheat being the fame, no contention can arife in the
delivery of it,-^ whereas, in the cafe in queftion, the different articles
comprehending in themfelves unequal unities^ the delivery could not
be made without contention.
If a perfbn purchafe a heap of grain for one hundred JimUf on the ^^|^^H*^'^
condition of the heap amounting to one hundred KrfeeJz^ and it rStevdM
be afterwards difcovered to fall fhort of that amount, in this cafe the ^"^^
purchafer has the option of either taking the afkual amount, at a rate talu it. or
proportioned to the terms of the con trad, or of undoing the contrad J^^**"*'
entirely; becaufe a breach of the terms ukes place before the deed is
rendered complete, iince, in order to render the deed complete, it is
neceflary that the a£tual qua^itity fUpulated be taken poilefHon of.
If, on the other hand, the heap be afterwards found to contain an bttt^ifttcffw
excefs beyond the ftipulated amount, the fale is valid with refped to is valid 10 die
the amount of the one hundred Krfeez^^ and the excefs continues the "^^^fjjl
property of the ieller; becaufe the fale is reflrided to ^ffec\fic quan^ ^miibi. '
istj\ and the execfs is not included in the defcription, fo as to be a
4;^^/ thereof, and not zfefarati article.
If a perfbn fell a piece of doth for ten £rms^ on the condition of irchefaae.
its contents amounting to ten yards,— or a piece of ground for one ^^^ ^^
8 hundred
3*8 SALE. Book XVI.
We of fpe. hundred Hirms^ on condition of its meafurlng one hundred yards, —
fall (hort. the and a deficiency afterwards appear, the purchafer has in that cafe the
may etfher ^?^^^^ ^«^her of cancelling the bargain entirely, or of taking the ground,
take it, or or cloth, thus dcfcdive, at the ftipulated price; for the fpecification
gainV ^ **' of^^r^jis ameredefcription of theA»^/A and ^r^odSrii; and no part of
the price is oppofed to the defcripiion of the wares ; — in the fame
manner as in cafes with rcfpe£t to animals ; — ^in other words, if a
perfon purchafe a goat^ which afterwards appears to want an ^ar^ he
would have the option of taking the dcfcftive goat for the price ftipu-
lated, or of undoing the bargain : but h*e would have no right to dimi-
nidi the price on account of fuch defe£t, becaufe no part of the price
is oppofed to the ear in particular, fo as to admit of any fixed (Umi-
nution on account of its deficiency ; — and fo alfo in the cafe in quef-
tion. It is otherwife in the preceding cafe, relative to wheat i be-
caufe there the deficiency comes under the head of the quantity and
not the Jefcription of the wheat; and the price being oppofed to
quantity, a proportionate diminution is accordingly made from it.
Still, however, the purchafer has the option of undoing the contract
if he pleafe, on account of the difference from the terms; his confent
butifttf*. having been given to the purchafe of one hundred Kifee%\. If,
«^.^5 f«l« however, the ground or the cloth ihould prove larger than the defcrip-
^animi tion, in this cafe the excefs becomes the property of ^t purchafer y
agreed for. ^^^ ^^^ option remains to t\it feller i becaufe (as has been already ex-
plained) the fpecification of yards relates merely to defcription and not
Xofubjlance. The cafe, in (hort« becomes the fam^ as if he had
fold zflaroe on the fuppofition of his being defeftive, but who after*
wards proves to be perfed.
irthe ooami- If a perfon fcU a piece of cloth, by declaring ^ 1 have (old this
^^edaTto ** piece of cloth, which meafures one hundred yards, at the rate of
fcUttbochto *< one ^rm for each yard,** and a deficiency fhould afterwards ap-
"vtfiJ^^i^ pear, in this d(fc the purchafer has the option, either of taking it,
^P^^^ with a proportional dedudion from the price^ or ofdiilblving the
"*' contraft
Chap. L SALE, 369
contrad entirely; becaule, although the fpectfication of yards comes ^"^ ^ ^
under the head of dejcriptm^ yet in this cafe the yards are confidered nin, whether
as relating to thcjiibfiance^ the feller having oppofed the price to each ^InT^^^
of them, which renders each (as it were) a fiparatt piece of cloth, the aooont
Befides, if the feller ihould take the defe&ive quantity at the rate pro- ^^^^^^ *
pofcd for the wbole^ it would follow that the terms of the contract
(namely the payment of one Jinn per yard) did not take place : — if^
on the other hand, the amount of the cloth exceed one hundred jf^r^jr,
the purchafer has the option, either of taking the whole ^ at the rate
of one <&77ifor each yard, or of diflblving the bar^in; for although
he has an advantage in the receipt of more cloth than he had con-
tracted for, yet this being tempered with a lofs, in the ncceifity it
la)rs him under of pajring an additional fum^ he is therefore left at
liberty either to abide by the contra^ on thefe conditions, or to
undo it.
If a perlbn purchaie ten 3rards of a hjoufe or bath meafuring one ^u fak oft
hundred yards, fuck, purchafe is invalid, according to Haneefa^ whe- ^^^^ "um*
ther the buyer may or may not have known the meafurement of the of a twLat
whole houfe. The two difoiples maintain that it is valid. If, on the ^"^ ^^
contrary, a perfoa purchaie teajhares of a houfe oc bath containing iakoft>M.
one hundredy&sr^x, it is valid, in the opinion of all our do&ors* The
argument adduced by the two difciples in fupport of their opinion is,
that ten yards of a Iioufe of an hundred yards in capacity arc in fa£fc
the fame as ten Jbares out of an huodcedy&^r/. Haneefa^ in fupport
of his doArine, argues that a yard^ in its original meaning, is a ftick
applied to the purpoie of meafurement ; but it is aifo ufei to denote
the tlnr^ meafured^ and the thingib meafured muft be r^/a/n;« and nor
an abfiroR idea of the mind^ fuch mjbare t now it is impoffitde, in
this cafe, to render fuch yards re/a^ve^ iince there exifts an uncertainty,
as no mention b made of ih^ particular fide of the houfe from which
they have been meafured; and fuch uncertainty would occaiion con-
tention between the parties. It is otherwife with refpedl to Jbares^
V0L.II. Bbb for
370 SAL E- BookXVL
for the{e are abftraA ideas of the mind and not undefined rdatives ;
and although, of confequence, an uncertainty cxift with rcCptSt to
i6eM aUb, yet fuch uncertainty cannot occafion a contention, iince
the poileflbr of ten /hares of the houfemay either enjoy them indefi*
nitely, or may receive 4u$ (hare according to the mode prefcribed in
thcdivifion of joint property.
Theporchafe If a peiibn purchafe a package containing cloth, on condition
of cS^ iF of there being /en pieces in it, and it afterwards appear that there
nuH.tficcoB. ^j.^ nine or eleven pieces in it, the falc is invalid, becaufe of the un*
am more or ^ ' - i i
left thaa ike certainty, with regard to the price^ in the one calc, and to the mer^
piecM agmd cban£fe in the other ; for in cafe of there being nine pieces, as the
*^' price of the piece wanting is unknown, that of the remaining nine is
of confequence alfo unknown; and where, on the other hand, there
is one too many^ it is unknown which are the fpecific ten that ought
?lkfpmt- to be delivered. If, however, the feller (hould explain the price of
TUf^fK^ each piece of cloth, and there be too fnvy the falc is valid ; but the
each partica- purcbaler has the option of undoing it if he pleaie; whereas,
irfucce. .£ ^Yicxt be too inany^ it is invalid, becaufe of the uncertainty with
refpe^ to the goods, as it would be impoflible to afcertain the
particular ten that art included in the fale. — Some have faid that in
cafe of deficiency alfo the iale is invalid, according to Haneefa^
But this is unfounded*
A fric it n«n If a pcrfon fell two pieces of cloth, on the condition ohheii" being
deferipcicMior Heritee^ and one of them afterwards prove to be Murnvdllee^^ in that
!!mJ[^u!^ cafe the fale is completely invalid, that is, does not hold good even
with refpe£l to the true one, although the ieller (hould have fpecified
the prices of both ; for when the feller joined together both pieces in
the declaration of a fale of Her&tee pieces, he, as it v^ere,'eftabli(hed a
* Of the manitfiiftitre of the provinces of Hcrit and %A Murwa.
condition
clous.
Chap, h SALE. 371
condition that die purchafer (hould accept a piece of Murnvilke^ which
being zfolfe condition the falc is therefore annulled*
If a peribn purchafe a piece of cloth, on the conditic^i of its mea- Cafe of the
furing ten yards, and at the rate of one £nn for each yard, and the p^^^cbih
meafurement afterwards prove to be ten prds and a half, or nine '*^t^
yards and a half, in this cafe the purchafer (according to Hame^a)
muft pay ten. dirms in the frjl injftaiice, and nine in t\it fccond; fttO
having the option of undoing the contra£k if he pleafe. jitoo Toofa/^
alleges that if the purchafer cbufe to aUdc by the contract, he muft
pay eleven ^m/ in the^r^ inftance, and ten in ^t^ fecund. The
opinion oi Mobammed\&^ that in cafe the purchafer chuies to abide by
the contrail, he muft pay ten and a half dhtns in ^tfrjl inftance, and
nine and a half in the^^W; bccaufc the meafurement of a yard having
been fixed at one dirm^ it necellarily foUo^^'s that bal/z yard muft be
rated at half a Srtiu The reafonkig of Moo i'^oofafv^ that a$ the price
of each yard was fixed at one dirm^ it follows that each yard becomes
virtually a difUnft piece of cloth ; and as one of thcfe proves defective,
it follows that the purchafer has the option either of undoing the bar-
gain, or of taking the goods according to the terms of the contra£t^
The arguments adduced by Hatuefa in fupport of his opuiion are, that
the fpecification of yards is confidered as referring to the defcription^
and not the real quantity of the thing, excepting only where the
price of each given mcallirement is fpecifically ftipulatcd as a condi-
tion of the contrail. Now as, in the cafe in qucftion, the rate is
oppofed to each complete yard^ but not to ^ny fmalkr quantity, it fol-
lows that fuch fmaller quantity muft be confidered as remaining la
its original form, — that is, as applybg merely to defcriptm^ and
therefore cannot involve an adcfitional payment* Some liavc obfcrved
that in coarfe cotton cloths, of which the extreme and interior parts
are of a fimilar texture, it is not lawful for the purchafer to take any
excels beyond the terms of the coutradl; as it may be cut off and re*
ftored to the feller without any injury to the piece, in the manner of
B b b 2 thmgs
37* SALE- BookXVX
things cftimable hyw^tf; and hence the leanied deem it lawful
to fell even z/ingkjtarjoi it.
Ift the fide of If a peribn fell the place of his abode (in other words, his Jbou/e)
the foundation and fiiperftro£hire are both included in fuch fale, al-
ar^6bin^ thou^ they may not have been fpocificd by the fclkr; becaufe they
^^>a* are comprehended in thecoounon acceptatbn of the term; and alio,
becauiCf being joined to the ground in the nature of Jlxtures^ they zrt
confidered as dependant parts of iL
iL^tiSffi^i In a fale cflanJ^ the trees upon it are included although they be
tipcm it an not fpccified, becaufe they ate joined tp it, in the fame manner as
* foundatbn and fuperftru^ure in the preceding cafe.
bat not the In a ialc of ground, the grain then growing oh it is not included
nnlefs particularly fpccified by the feller; becaufe k is joined to the
ground, not as zfxiurej but for the purppie df being cut away from
it, in the fame manner as -goods of any kind which, may have been
placed upon it.
S2*o?i*Il^#, So alfo. if a perfon fliould fell a tree on which fruit is growing,
St the/r.^ the fruit belongs to thc/el/cr^ unlefs it had been fpccifically included
in^dedT in the fale; bc^ufe the prophet has faid ** If a perfon fell a date tree
" With fruit upon it^ the fruit belongs to the feller^ untefs the fur-
chafer fhould have ftlpulated its JeFruery to bim as a comCtion gf
= faleJ"' l^-ifides, although the fruit be, in faft, a part of the tree,
yet as it is Intended to be plucked and gathered, and not to
be fufiered to hang on the tree, it is therefore the fime as gnun.
chafer muft* It is to be obfervcd, however, that in the (ale of a tree with
2JJf^[2fe^ fruiti or of ground with grain upon it, the feller muft be immediately
Awaf. defired to clear them away, and deliver the property to the pgi chafer ;
becaufe, in thefe cafes, the property of th6 purchafer and feller being
implicated
Chap. I. SALE. 373
implicated together, it becomes incumbent on*the fdler to clear away
what belongs to him ; in the fame manner as if he had placed any of
his goods upon the ground, in which cafe the clearance of them
would have been requifite. Sbrfei maintains that in both, theie
cafes the grain and the fruit fnuft be fufiered to remain until they be-
come ripe, becaufe there ought to be a period ftipulated ibr the de*
Jivery of the things fold, and thai period ought to be extended to the
complete growth and maturity of thefe veg^ts^bles; in the fame
manner as in the cafe of a leafe of ground, where if, at the expira-
tion of the leafe, the grain on the ground hcffreen^ it is fufiered to
remain until it ripen. Our doftors, on the other hand, argue that
die obligation is the &me on a /e^/; and if he be permitted to extend
the leafe on account of the unripenefs of the grain, he muft, however,
pay additional rent for it, which'is a fubflitute for the delivdry ; and
the fubfiiiute is in effcd the fame as the thing itfeffl It is to be ob«
ferved that in the ^e of a tree^ the Jruit is not included, whether
it be of an appreciable naturie or otherwife, unlcffs it be fpedfically
meatiooed.
If a perfon fell a piece of ground in which feed has been fbwn. In tbe ftU of
but of which the growth has not appeared above ground, in this cafe ^^Tfowa b
the feed is not included in the fale. If the apparent growth fhould ^*!7***^*
have taken place, though not in fuch a degree as to render the vege-
table of any value, in this cafe there is a difference of opinion. Some
allege that the vegetation is not included in the fale; and others, that
t //. This difference of opinion has its foundation in the difiirent
Tentiments which the parties entertain with regard to the validity of
the fale of vegetation, prior to its being fit to be cut down by the hook,
or ufed by animals in the way of forage: for thofe who confider the
Separate fale of fuch vegetation to be valid are of opinion that it is
not included ; whilfl thofe who confider the fale of it as invalid are
of opinion that it is included in the faleof the ground.
Grain
37* S A L E* BookXVL
^uQU^ Grain vAfrmt are not included in a £ile of ground, or of a tree,
included, in although the puidiaier and feller fpectfy the lights and appen*
Wor /r^, dages, (tn^thcr words, although the feller declare *^ I have foU this
riJto^IiiJ* •* ground, or this tree, with all its ri^ts and appendages,'^) becaufc
appcndafcct grain and fruit do not fall under thefc defcriptions. (The r^bts of a
m thrcon- thing are thofe without which it cannot be enjoyed, and which form the
^^^ ' principal oliyeft of poiiefSon, fuch zszwater cwrfe or a roaJ: — tba^foi-'
dttges are things from which we derive ufc, but which are more par-
ticularly confidered as dependafU parts, fuch as a cooi-raom^ or a houfe
for icifing water. ^-^In the fame manner, if the feller ihould (ay ** I
*^ have fold this tree, or this piece of ground, with every thing iinall
<« and ^eat of its rights and appendages which I poflcfs in it,** fUU
hTd^-*** neither the fruit nor the grain is included in it. — ^If, however, &e
^*n«*« ^ ihould fay in a general manner, ** I have fold this tree^ (or this piece
pKlTcdf ** ofgroundj) with every thing great and fmall which I pofleis in it,**
norcas anf ill this cafe the grain and the fruit are necelTarily included in it. — It
fncia^^- is to be obfervcd that grain which has been cut, or frmt which has
tcr being x«- been plucked, cannot by any conftru£lion whatever be included in the
4/M«. fale, unlefs exprefsly mentioned as fuch.
Ffttit may be The (alc of fruit upon a trcc is valid, whether the ftrength of
tree IB every the fruit bc alccrtamed or not; — that is, whether it may or may not
grawth f have reached fuch a degree of ftrength as may preferve it from com-
mon accidents; — becaufe fruit is a property of certain value, either
immediately^ in cafe of its being rife^ or hereafter^ in cafe of its being
in an unripe fiate: — ((bme have iaid that the (ale of fruit in a weak
(late is invalid: the firft doctrine is, however, the moft authentic:)
and the fale of fruit in an ab(blute manner bdng valid, the purcha(er
muft immediately take it from the trcc, whether this be particularly
^trla^in- ^^P^^ff^^d ^ a condition in the (ale or otherwife. If, however, the
vdve any condition of fuf&ring the fruit to remain on the tree be (lipulated, the
yn^tXy ap- (ale is null, becaufe fuch a condition is illegal, fince it implicates tog^-
Selriri/A ^^^^ ^^ ^^g^' ^^ property of the two parties, which is repugnant to
4 the
CRAf.L SALE. 375
the ittture of iale; and everjr condition of this kind invalidates the
fak. Befidesi in this cafe it muft ,neceflarily follow that one deed is
interwoven with another; in other words, that dther aloaa or a leaie
is implicated with the (ale, which is unbiwfuL In the iame manner,
the fale of gnun, with a ftipulation of leaving it on the feller^s ground,
is nohwfuU and for the fame reafon. The lame rule alfo obtains
(according to Hanetfa and Aho T$ofif^) where the fruit or corn has
attained \l»fullgr$wtb^ as this implkates the rig^t of property of two
parties. Mfbanvmd is of opinion that, in this inftance, fuch a condi-
tbn is lawful, becaule of die exiAence of the wh^k of the (hing ia
queftiont whereas, in the fimner cafe, the part of the property
which afterwards vegetated was not in being at the time of the con*
clufion of the deed;, and the fllpulation of a condition with regard to a
nonentity being illegal, the fiJe is therefore nulL
If a prffon purdiafe fruit upon the tree before it ha^ reached its Tke ti&-
full growth, in an §bfdf$U manner, (that is, without flipulatmg the ^rMtMi^
condition of its remaining upon the tree until it become ripe,) and <fc**^sa*>
afterwards, with the permiifion of the feller, fuffer it to hang on the cd cocoftd.'
tree, in this cafe the additional growth becomes his lawful property.
it»
Ifi however, he aft in this manner without the confent of tlie feller; ^f^*,,^
* brcofSfentaf
tke
oft
duftr:
he muft then heflow the difierence in charity, as being the produce of of de yw •
the property of another without the confent of that other.— If, on the
other iund, the iale ihould have taken place when the fruit had at*
tained its full growth, and the purchaicr fuffer it to remain until it
become ripe, he is not on that account required to beflow any thing
in charity, becaufe in tliis mfhnce a change from one fhte to another
takes place without any increafe being made to the (ubftance»
If a perfon, havmg in an abfolute manner purchafed fruit which and fo aiib.if
had not attauned its .full growth, ihould afterwards fuffer it to remain uke'?!^^^
on the tree till it became ripe, by taking a leafe of the tree tiB that ^« ^tw
period.
376
SALE.
Book XVI.
but this rale
does not hold
with rcfpcA
10 ^ratn pnr*
cwued ttpoa
the ground.
period, in this' cafe the increafc of lubftande is lawful to him, bccanfr
the leafe is null, on account of a want of precife knowledge with re*
{pe&, to the period of it^*— and alfo, on account of its not having been
warranted by abfoiute neceflitj, fmce it was in the power of the
lefiee to have purcbafed the tree itfelft^-^nA the leafe being null,
there remains only the confent of the feller, to which regaid muft
be had. It is othcrwife where a perfou purchafes pain upon the
ground, and having then taken a Icafe ci the ground until the grain be
capable of being cut down, fuffers it to remain until that time; for
the incrcafe of fubftance is not in fuch cafe lawful to him, fince the
leafe fo made is invalid, and an invalid leafe is the occafion of bafc**
nefs and abomination.
Any
hull which
my grow in
the interim,
is the pro-
perty of the
€b0jir.
Rule in the
purchal^ of
vegetahkf.
' If a peribn, in an unconditional manner, purchafe fruit upon a
tree which had not completely vegetated, and afterwards, before
he had received a formal feizin of it, new fruit (hould grow, in this
cafe the fale is invalid, becaufe of the impra£Hcabi!ity of delivery on
the prt of the feller, from the impoflibility of diftinguifliing between
what was the fubje£t of the iale and what was not. But if new fruit
fhouU appear after the feizin of the purchafer, fuch fruit is in an
equal degree the right of htb^ becau(e of its intermixture with the
property of both. The affcrtion of the purchafer^ however, Mrith
regard to the quantity is credited, becaufe the fruit is in his poflfeflion.
(The fale of artichokes or melons which are growing is ibljeft to the
&me law as that of fruit growing upon trees.)
If a perfon wiih to purchafe fruit, artichokes or melons, and after-
wards to have it in his power to let them remain until they become
ripe^ or until they (hall yield a new crop, fo as to have a lawful claim
to the property, the expedient to be pra£tifed, in order to render fuch
conduA legal, is to purchafe the tree or btd it/elf^ and after clearing it
of
Chap. !• SALE. 3^7
of the fruit when ripe, to undo the contrad of fale with regard to bcibUoiitKe
the tree or bed*. any ^^.
If a peribn ihouM (eil fruit, with a refervation of a fpecific num-
ber oiRash of it, the Ude is invalid, whether the fruit be upon the
tiMoroflfit; becaufe although the refervation be itfelf fpecific and
known, yet the refidue is lorknown. It is otherwife where a refer*
vation is made of a fpecific /r«r ; becaufe there the remainder is known,
being obvious to the eye. — Our author remarks that this doflrine is
conformable to a traditbn of Hafm^ adopted by ToAdvet: but that
fuch a fale is valid, according to the ZaAir RawwfeU and alio in the
opinion of Sbrfti^ becaufe it is a rule that whatever may be lawfully
fold, feparately, may alfo be lawfully excepted from a deed of fale.
Thus the fide of one FUftn from a heap of grain being lawfrd, the
exceptiM of it is aUb a lawfrd aft — ^It is otherwife with reipeft to a
fatus in the womb, or«any particular member of an animal ; bec&uie
as the feparate fide of (iidi lilies is illegal, fo alfo b the refervation
ofthenu
The fide of wheat in the ear, or of beans in the htiiki is Tafid; OtdBMvW
and the law is the fiime with ttfyeBi to lice or rape feed in die htrfL £!{J|^p^
5&j^i is ofopinion that the fide ofgreen beans in the hulk, or of wal- adkkBik.
nuts, almonds, or Piftachb nuts in the fhell, is not valid; but with
refpeft to wheat in the ear, he has given two oppofite opinions; All
thefe fales are, however, valid in the opinion of all oirr do£brs. The
reaibning of Sbafn is that the fubjefi of the fiile, in thefe cafes, is
hidden within a thing of no value in itfelf, namely the lm/!k^ and that
therefore the csXt becomes the lame as if a goklfinith fliould fell a
heap of earth mixed with particles of ^Id, inexchange for another
* ihf coiwcnt of lbs loicf Nrhcic picwippowBd i won miflwr of ui^ pviNS' epA wmo a
vw wiDMMc ine coflKK oi !■« OTBcr* I W9 f B|iimii> m lancioic wnnns on s ■■ppni'*
tioo of die fiityic mMif of die fidt bdiif ofiollj agraca^
Vol. II. Ccc heap
378 SALE. BookXVL
heap of a (imilar nature, which is invalid. The arguments of our
doctors upon this point are twofold. First, the prophet has faid
" The file qH fruit upon the tree^ or of grain in the tar ^ is invalid^ un*
•* lefs it approach to ajlate qfripeneji^. Sbcondly, wheat is an ar-
ticle capable of yielding advantage ; and hence the fale of it in the ear
is valid in the fame manner as that odar/ey^ the one being an appre-
ciable article as well as the other. It is otherwife with gold <]u{l,
for the (ale of that, mixed with earth, is unlawful from the poflibility
of its being ufurious.
Tlie iak of a If a perfon fell a houie of which the lock» are not of the hanging
dadet 'the ^^^ ^ ^cjxeJ kindt ii^ this cafe, the keys of fiich locks are confidered
^aresand 2$ iocludcd ji\ thc (alc; becaufe the locks themfclves are included in
dMgs^!^^^ the houfcy in confequence of their hting fxiumi and the fale of a
lock includes the key, without its being exprefsly ftipulated, becaufe
it is^ confidered as a conftituent part ofit^ finct a lock without a key
is of 00 ^«
^^v The wages of thc meafurerf of the goods, or of the eflayer of tlic
tkc cvflntt money, mufl be paid by the feller :-r!!the wages of the metfurtr^ \^'^
^^^ cauft, as meafqrement is e^ntiat to enable the feller to deliver over
/•w^'* j«^ thc good^> the payment of the ej^pence attending that falls properly
-wmm^^jiyirm ^^^ ^^ ^^^^ ^ ^^^^^ ^^^ wagcs of Wiigkers Of ti/IfTj:} — and thc
wages of the i^#r. bscaufe of a tradition^ delivered by lAn Rooftim^
that iUch is the doiSUini^ of Mobanrnudi and alfo fer this reafon that
the eflay of the money takes place after the delivery, when it becomes
the bufineis of thtfdkr to have it eflayed,.in ocder that he may dif-
tinguiih what is his right and what is not;, and that he may afcertain
the bad coin in order to rejeft them. Jin SoomSi relates it as the opt*
^ Wknict it maybe nrfemdtbitliie'fide, in die mt, cr vpon die im, it admiffible.
t Meamiig, properly, igcnc pfflbn wko is emplpje4 as ^finm Vffftffid meaTurer.
7 nion
Chap. L SALE. 379
ninn of Mobamntd that the purcbafer fliould defray the wages of the
fflayer, bccaule he Aands iii need of afcertainhig the good Unm
which he has (lipulated to deliver, and the good Jinns are known by
means of an ejiiyer^ in the (ame manner as quMtrty^ by means of a
meafurer.
Thb charge of weighing the price is due by the purchafir^ becaufe batthcchargt
he is under the neccflity of delivering it to the icUer, and the dc- Jhe7riS&
livery is completed after the afcertainment of the weight. In a fale fti- ^ «f«yed
pulating immediate payment, the purchafer muft firft deliver the rL>.
price to the feller, becaufe his rigiit (namely the goods fold) is of a
Axed and determinnte nature, whereas ^tprkt is not fo; and it is
therefore incumbent on him, in order that both parties may be on a
par, to deliver the price to the feller, Which fixes and detemMnes it;
for it cannot be determined but by delivery**
Ik a fale of goods for goods^ or <^ money fbrmoney,it is neeeflky h lunfr or
that both parties make the delivery at the fame time; beonife being 2?!l!S!i'de?^
on a par in point cf certainty and uncertaioty, there is no iMocffity '^"'^P'"!"^^
fora/n^dclivcry* MitictBctiM
fiUBCdBMb
• Tiuif if the {Vice fti|iii|ated b« tm Orm^ and the purthafer be in foBfittm of a r&««-
find£rms{hr example) in this cafe, although the number ten ht ditinrnnati^yd die uniti
to compoTe that number and to be taken fcom a great number, are not fpecific and deter-
minate, until adually delivered. This do£krine is frequently and pirilcularly enlarged
upon in the fequel of this book.
CHAP.
j8a SALE. BookXVL
CHAP- TL
Of Optional Conditiosi *.
Maldoaof Ak Optional condition is where one of the parties iUpulates it as a
condition that he may have the option, for a period of two or three
days, of annulling the coatiaft if he pleaie.
A cmriidoR Th£ ftipulation of a condition of option, on the part either of the
bc^B^^ feller or purchafer, is hwful; and it may be ftipulated to continue /or
^P^^ W three days or lefs; but it miift not be extended ieyomJ that term ; be*
cade it is idated that A^ini having been defhtuded in ieverd of 1^
bargauosy the prophet addrefled him thus, ^' Hoobah, when you matt
a purcbqfe bar deceit^ andfilfuUut a cwJkim ffopUm.^
«c
• Anb. nUr^l-SUrt. In cMtnStt of fide dim ace five different options. Thefe
MKt li. Opciba of acceptance. 2. Optional condidoni. 3. Option of determination.
4. Option ofinTpeaion: and, 5. Option from dtfea. Amftim^^ciptaMeiiMM liberty
which ciriier of die parties in a oomraft of fide, has of widiholdi^ his acceptance^ after
Ihetender of die odier, until dM breaking up of die meeting. An i^tMi/ ^ainfirMi is
where one of the parties ftipubtca a period of thiue days befcre he gives his final aflent to
dMOonorad. An ^im tf iiUrmmHitm h where a perfan, having purehafed one out of
two or diree homogenous things,, ftipuhiesaperiod to enable him 10 fix his choice. Op*
tlm9fh^^Mm^\% die power which die purchafarofanunfeendiing hu of rc]eati«ic
after fi|^ Ofdmfrm AfiO k die power which a pordiafer has of diflbhring die conmft
ontiMdifeoveryofadefcaonthemerckandife.— The ttanflatorhasdxMiiJht it proper, in
diisnots 10 bring int» one point of view an explanation of die feveral kinds of option, as
it mqrpoSUyiend to give a clearer idea of diem dun what couU. be coUeaedfiom die
fanered defiititions of them as dicj occur In die cottife of die work.
Ak
Chaf-IL sale. 381
An optional condition^ ftipulated to remain in force for a period ^^^^^
exceeding three days, is unlawful according to Hancc/a; and Zljcr the term of
and Siqfei are of the £ime opinion. The two difciples, on the con- ^ ^^'
trary, maintain that it may be fHpulated to continue to any length of
time whatever; becaufe it is related that Jin Omar extended it to fwa
fwntbsi and alfo becaufe it is ordained, by the law, for ihe purpofe
of anfwering the neceflities of man, In enabling him to confider and
let afide what is bad ; and as a period of three days may not be fuffi-
cient for this purpofe, the Indulgence is therefore extended with re-
ffcGi to the mcrcband^Cy in the fame manner as with reipe<£l to the
frke. The argument oiHaneefa is that an optional condition is re*
pugnant to the nature of the aft, which fixes an immediate obligation
on the parties, and is allowed only becaufe of the faying of the pro-
phet already quoted ; whence it cannot be extended to a period beyond
what has been there fpecified*
Alt&ovgh a conditioned option beyond three days be nef per- If it c^rmuf
mitted, ftill if fuchr a condition be ftipulatcd, and the perfon making JllduJSJii.
fuch iUpuhtion, before the lapfe of the three days, declare his accept- ^^>^
ance of the contract, the fiile is in that cafe valid, according to Haneefa. accepuoce
Ziffer^ however, is of a different opinion; for he argues that the (£i^^i^!i^
fide bcmg mvalid from the beginning, on account of the illegality of J^tie^u^l
the condition, it cannot be afterwards rendered valid by the removal A>1*
of inch conditbn* The arguments of Haneefa oh this point are two^
fold* FruT, as the acceptance of the fale was declared before the
lapfe of the three days, the cauie of its invalidity has not began to
operate. Secondly, the invalidity takes place on ihtfourtb day;
and as the acceptabce is declared before that period, the Ikle is confe-
quently kept btt from any caufe of invalidity. From this fecond ar*
gument feme have confidered that the invalidity of the fale does not
take placeljntil the commencement of the fourth day ; — whilft others,
(founding theic opinion osLtJbtfrfi argument,) hold that thecoutraa
was
38a SAL E. BoosXVL
wtl iavalid from the beginning; but is afterwards rendered valid by*
the removal of the cauie of its invalidity pnvioHS to its cpa*atm.
Tht/tf^MMwi It is lawful for a per(bn to niake a purchafe on this condition,
may hTfub^ that ^^ if, in the courfe of three days, he do not pay the price, the fale
JiagiMthi <c fl^au be null and void." If, however, inftead of tbra days he fti-
pulatey^trr, the fale is not valid, according to Hanafa and Aboo Tcofdf.
Mbbmuned li of opinion that it is valid, whether he (lipulate four days
or more. All our doctors however agree, that, in cafe of fuch a ftipu-
lation having been mide, if the purchafer, in the mean time, pay the
price, previous to the lapfe of the third day, the fale is valid. The
reafpn of this is that a conditba of this nature is of the (ame nature
ytxth an optimuJ cwditm^ becaufe, in cafe the purchafer cannot fur-
nifli the price, thcjillcr ftands in need of a -power to annul the a£t
As, moreover, Hmeefa holds that a file is invalid, where the condi-
tion of option extends beyond three days, but may afterwards be ren«
dered valid by a formal conSrmation previous to the kpfe of the third
^y, Co alfo in the cafe in queftion. As MoAammeJf on the contrary,
holds that the extenfion of the condition of option ieycndtht third
day is lawful, (6 alio in the prefent inftance. jfboo Too/kf^ on the
other -hand, aldiough (contrary to analogy) he hold the extending of
a eondiim tfoptm beyond three days to be lawful, 'becaufe of a tra-
dition which he quotes to this effeA, yet is of opmion that the fame
extenfion is uaUwful in the prefent iaftance, (arguing from analogy,)
as there is no tradition in fupport of it. There is another explana*
tion, from analogy, with refpeAto this cafe, which has been adopted
by Ziffer^ to the following effefi, that, in the (ale in quefticn, an inva^
//^/diilblution has been ftipulated, (for the didblution is invalid, as it
depends upon a condition ;) and as a iaie is rendered void by the fti«
pulation of a.vfl/n/ diflblution, it follows that by the ftipulation of an
/>nWA/difiblution it is rendered void a fortiori. The reafon, however^
fur a more liberal conftrudion in this particular is, that the condition
here
Chap. ir. SALE. .38^
here (Upulated h conHdered um an equivalent to a coiidkioa of c//iM|
as has silready been explained.
Ip lYitfitlir fiipulate a condition of option, the right of property ThMjklkr.hf
over the goods does not in that cafe ffuft from bim^ becaufe the coadidoa'of
completion of the fide depends on the mutual confcnt or the parties, not wSinSft
and the condition of option eviixces that the feller has not completely ^ V^^*^
conlented. L', therefore, under thcfe circumfhnces, the feller fliould ibU:
emancipate a (lave whom he had in that manner ibid, the emancipa-
tion would hold good.— Neither is the purchafer in fuch a caie en-
titled to ufe or employ the goods, although he (hould have taken
pbfleffion of thefn with confent of the feller.— If, after the purchafer
had poflefled himfelf of the goods, they fhoukl pertOi or be deftroyed
previous to the exptratbn of the period of optbaal condition^ he be-
comes in that cafe riefponfible for the value; becaufe by the de-
ftru£lion of the goods the fale is annulled; (for the execution of it
refted only on the confent ofthefi/fen and where the fubje£fc of it is
loft, the exccutbn of it becomes imprafticable; and it is null of
courfe;) and as the goods were in poiTeflion of the purchafer with a
view to purchafe, (which circumftance renders a purchafer refponftble
for the value,) he is refponiible accordingly. If, on the other hand, '
the goods be loft in the poflefHon of the feller, the deed is an-
nulled; and no payment is incumbent* on the purchafer, in the &nie
manner as in the cafe of ah abfolute fale, that is> a iale whei^ no cbn-
&ionisftipulated.'
Ip the condition of option be ftipulated by the purcia/er^ the nght Wtth^ m^.
of property over the goods (hifts from the feller, becaufe the fale is 5^**"**
rendered complete on his part. The right of property, however, the psrcU^
althou^ it fliift from the Icller, docs not veft in the purchafer, ac- jJbS^u^^^
cording to Hmeefa. The two dilciples have faid that the purchafer "»icoai/#
becomes the proprietor; for, if this weir not the cale, it muft ne-. Jim^^
ceflarily follow that, after it moved from the feller, it would remain J^S/'^
fubjeft '^
SU SALE. BookXVI.
ckejofieriiM {vth^ to 90 pedoii; and this is a ftate not fuppofed by the law«
*****^ The arguments of Haneefa on this point are twofold* First, as the
right of property with refpcft to the price has not (hifted jfrom the
purclufer, it follows that if the right of property with refpeft to the
goods alfo vcft in him, the property with refpeft both' to the thing
purcbaftd^ and the return for it is concentered in one perlon, which
is abfolutely illegal. Secondly, If the right of property with refpeft
to the goods were to veil in X^cvt furcbafer^ it might frequently hap-
pen that the goods would, in the interval, * before the completion of
the fale, be made away, without any intention on the part of the
purchafer; (as if the purchafei; had bought a flave rebted to himfelf
within the prohibited degrees*;) aAd as the fole object of the relerve
of option is. the benefit tftbe purcbafer^ in allowing him titne for con*
iideration, it follows, that if the right of property were to vet) im*
mediately in him, he might be deprived of the advantage which Is
the objeft of the referve of option.
irdMpor- If the merchandiie, where the ftipulation of option is on the
tbt opdoa! pi^ ^^ the purcbafer^ perifii or be deftroyed, the purchafer is in that
h^^^A^ cafe anfwerable for the price. In the fame manner alfo, if the goods
dtftfoycd ia receive an injury^ the purchafer is relponfible for the price ; becauie the
uS^Ssm' S^^^t &fter fuibuning an injury, cannot be returned, and the iale con-
ttU lor the iequentljc becomes binduig. The purchafer, therefore, is relponfible
for the price in either inilance; iox defiruQion neceflarily implies pre*
vious injury \ and hence in a cafe where the purchafe is utterly ^-
flroyed^ the tiXtfirJI becomes binding and complete, and the deftntc-
Wc ific icft tion takes place afterwards ; and as, in a cafe of injury, the payment
la^^laSSSi ^^ *^ P"^ becomes obligatory, fo alfo in a cafe of deftru£tion. It is
iiidipofiiibk otherwife where the merchandi(c periflies in the pofieflion of the
^, ^ furcbafer when the option had been ftipulated by ihe/el/er; for in
• lo which caft the flave would becom immediately fiee. See Vol. I. p. 432.
this
CifAF.n. SALE. j^s
this caie the purchafcr is anfwerablc only for the value ^; becaofe the
csrcumfiance of the injury docs not render the reftitution impracti-
cable, (ince the feller, in that cafe, has the option either of Ukttig
the merchandiie thus injured, or of rejeding it, if he pleafe, as the
optional condition remains with him : and hence, as the fale does not
become binding on the occurrence of the injury, if tbte fdler chufc to
confirm it, the purchafer in that cafe only pays the value of the in-
jured merchandiie.
If a perlbn purchaie his own wife, with a referve of option for '^•^•'j'
three days, in this cafe the marriage fubfifts during that interval, as pofchiicof a
the right of property does not take place becaufe of the optional condi^ ][2kaiS br
turn: and if he have carnal connexion with her during that interval, cc^tatm
*the condition of option is not thereby annulled; becauie he has it fHU tbttBiaia
in his power, after fuch connexion, to undo the iale, fincc his coha- ^****
bitation with- her is the exerciie of a right in virtue of his K:arriage^
and not of his right cf property. — If, however, his wife be a virgin^
his cohabitation with her annuls the condition of option, and e(k-
bliihes the (ale, as it is a damage to her, and a diminution of her
value.— -This is the dodrine ofHaneefa. The two diiciples are. of
opinion that the hufband becomes immediate proprietor of his wife by
the optional purchaie, whence the marriage is immediately annulled.
If, therefore, he ihould have cohabitation with her, he cannot after-
wards rged her, although ihe may have been a woman j^; becauie,.
the marriage being null, the cohaUtation was not in virtue of imt*
riage^ but of property. — ^This difference of opinion httween Haueefa
and the two diiciples, reipefting the property veiling immediately in a
conditional purchafer, has giyen rife to oppofite deciiions in a variety
of different cafes. Of this number are the following.
^ And Mf fortfae ^a fet upon it ia the umr^a.
t That is to by, not a wgim.
VoL.IL Ddd If
jW SAL E. BookXVT.
Caftof op. • Tp a perl«n mak^ au .optional porchaie of a flave related to him
SSS^ Jf^ within the prohibited degrees, the emancipation, in the opinion of the
flave relaitd t^o diicjples, takes place immediately; whereas, according to Ha-
chaAn mtfa, it does not take place until after the cotiiim»tion of the con-
udofaOaft traS.-»If, aUo, a perfi>n make a vow to emancipate a (lave whenever
fSfdtai^ he becomes proprietor of one, then, according to the two diiciples,
yjj^^ if he make a conditional fwrcbafe of one, the emancipation takes place
«A>| immediately; whereas, according to Haneefot it does not take place
•r«ran«: till after the confirmation. Jf, alio, a perlbn make an optional pur-
^rawtyiMft ^^^ ^ ^ female flave, and her. monthly courifes happen during the
term of option, thefe courfes are included in the prefcribed term of
ajbftinence*, according to the two difciples; whereas, according to
Vm^a^ ^hey are not included. And if the purchafer, availing him-
ielf of his optional condition, Ihould return her to the feller, the feller
qeed not obferve the prefcribed term of abflinence, according to Ha-
mtfai whereas, the two difciples hold that fuch obfervance is in-
" ^^iS?" ^^'^^'^°*^ ^ him.— If» on the other hand, a perfon make an optional
purchafe of his own wife, and if flie, during the interval of option,
bring forth a child, (he is not an jim-Walid to the purchafer, accord-
ing to Hatutfai whereas, according to the two difciples, (he is To.
If, alfo, a perfon make an optional purchafe of merchandifc, and
having, with the confent of the feller, received poflcffion of it, aftero
. wards ^ve it ia depofit to the (eller, and it be loft in die interval, in
this cafe, according to Kanetfa^ the tnift is null and void, as the de-
pofit was not the property of the purchafer, and therefore he is cf
opinion that the lofs refults to the &ller; whereas- the two difciples,
hoUing the faid'depofit to be valid, are of opinion that the lofs refults
to the /ttrcA^, agreeably to the law of dcpofits — ^If, on the other
• The |M|cclu6r of a female flave is reqoired to aBftain fimn canuT connexion with her
■adl Ak IbaU bve had three different cowfet from the period of her hecooMog his propertj,
thatitnaybeafcaainedwbMhferihebepnsnateriiof. (SbeilA.)
hand.
Chap.IL sale. 387
baiidy a privileged flave make an optional purchafe, and the feller, Optional
during the interval of option, exempt him from the payment, in this midebxa
cafe, according toHanetfa^ the condition of option remains in force; SJJJ^^*!**^
because if he fhould return the merchandife, it follows that he does
not chufe to accept of the property, and a privileged flave has the
power of accepting or rejeftiiig as he pleafes :-^but, according to the
two difciples, the condition of option is annulled by the exemption of
payment; becaufe (in their opinion) the property having vefted from
the beginning, it follows that if he were to return the merchandife to
the feller it would be in tStOi a gift to him, and a privileged ilaye has
not the power of making a gift.— If, moreover, a Z/im»^ purchafe ^^^'^^'
fpirituous liquors from a ZimmeCf on a condition of option, and the chafe of «««f
purchafer, in the interval, become a Muffkbnan^ in this cafe, ac- w^ia^tbir'
cording to the two difciples, the condition of option rtiiuuns no longer ^JJ^,^'
in fbrce^ becaufe the purchafer having (agreeably to their tenets) be- &itlu
come proprietor of the liquor, it follows that if be were pormicted to
rejeft it,, he would create in another a right of property with refpeft
to liquors which no Mujfubnan is allowed to nfe.— According to Jifa-
n^efa^ on the contrary, the fale becomes void, becaufe die pujichafer,
(agreeably to his tenets,) not being then the proprietor, and the dr«
cumfbnce of becoming a Muffidnum putting it out of his power to
become the proprietor by removing the condition, the fale is of necel^
fity annulled^
Ik cafe of a fale on a condition of option, it is lawful, according Thepofleffor
to Hantefa and Mobatntned^ for the party poflcf&ng the option. to annul uax«m^the
the contraA within the flipplated. period, or to confirm it; which j^JJSw^rf
Litter he may do without the knowledge of the other party; but it ii t]i« other
not lawful for him to annui it without the knowledge of the other.-^ mfm it
AboQ 27x^/2/* alleges that the party poffefling the option may annul the J^JjJrf^.
contraft without the knowledge of the other.; and fuch, alfb, is the
opinion of 5i6^i. — Thearguomit o( Aboo Yoofaf\% that the party
poflefling the option is empowered, on the part of the other, to annul
D d d 2 the
388 SALE. BooxXVt
the coQtnA; and that, thereforct fuch aontilinent cannot reft upon
that other*! knowledge of it; in the fame manner as his knowledgie
of it is nnneceflaiy in cafe the pofleflbr of the option cmfrm thecon«
traft; as in the cafe of an agent iw faU^ (for inftance,) who maj
lawfully a& in every matter to which his agency extends, without
the knowledge of his conftituent, in virtue of the powers ^ven to
. him on lus hdialf^^^The arguments of Homg^ and MoiMmmeJ are,
that a contraft. of iale bvolves the rig^t^ of both parties ; and that the
annulment of the fale by one party only is an exerciie of a right partly
belonging to the oiAer^ whilft at the £une time fuch exerdfe may
eventually be attended with a lo/s to the other: for fuppofing the
pofleiS)r of the option to be the JcUcTf and that he annul the iale
without the knowledge of the purcha&r, and the purchaier, in the
mean time, in the confidence of the iale bdng- complcSte, take pof«
ieffion of the inerchandiie, then, in caie of its deibru^on, he muft
of coniequence be refponfible for it :--or, fuppofing the furcbafer to
be the pofleflbr of the option, and that he annul the fide with-
out the knowledge of the feller, then an eventual lofs may refult to
^t filler^ as it is poifible that, on die prefumption. of his goods being
already £)ld, he may enquire out another purchaier. Hence^ as
fuch an exerciie, on the part of either, of the ri^t of the other, m^ be
attended with an eventual injury, the annulment of an optional file is
theriefore made to reft upon the knowledge of the other party.—
This cafe, tii ihort, refembles the difmiifion of an agent: for if a
perfon, having appoint^ an agent, ihould afterwards difmifi him
without his knowledge, it would not be valid until the agent was
himfelf informed of it; and to alio in the cafe in queiHon.-^It is
otherwiie with the con^rmatian of a fale} as the exercife of fuch &
rig^t by one party only does not entail an bjury.— The aflertion of
Jbo9 ToofifHtkzl *^ the pofleflbr of the option is empowered to make
^* foch annulment on the part of the other,** is not admitted; for how
can the other, who does not himfelf pofieis fucb power, beftow it
upon the pofleflbr of the optioaf
Cam.U. S a L £• 3H
If tbeperfbn pofleffiog the Optioa annul the (ale without inform* g'j^
sng the other party, and fuch knowledge, neverthdefi, reach him ^^^^/^
hefore the expiration of the itipulated period, then, becaufe of his'ac- Mgef m4
qmrement of fuch knowledge, the annuknent is rendered coo^lete. Sj^^S^tt-
If, ontheotber hand, it (hould not have reached him until the exptr- ^^^^
atioa of the itipulated period, then the annulment is rendered com- ciMicfffli,k
plete, becauie of the expiration of the itipulated period.
If a peribn poileifing the right of option in a iale ihould <fie, the Ang^trf
iale is then complete, and the right erf* option becomes void, and does OtVcaMot
not defcend to his heirs.----iS:&^7 maintains that the option deice^ sST^^^
the heirs, becaufe, being a fixed and eibUiihed right in fide, it may
be inherited, in the iame manner as an option in: die of defeS, or an
option of determination* The arguments of our dofiors are that an
option is in reality nothing hut i^, or 4^g^Ms, which is not cspia*
Ue of being transferred from one to another; and nothing but what
is capaUe of devolving from one peribn to another can be inherited^-^
It is otherwife with reipeft to option in caie of dtff3^ as that is
granted to the heir, becaufeof hu ri^t to obtain pofleffionof athing
whole and complete, in the fiime manner as the deceaied, and not
becauie of his ri^t ^ inkeritatiee^ iince option is inopaUe of being a
futgea of mheritance. It is othorwiie, alfi), with reipeft to an option
e£ dttermmatiMf as the heir becomes the proprietor in that inibnce,
becaufe of the mxture rf ft^firty^ and not becaufe of, his r^ht rftt^
teritmce.
If a perfon, in purchafing any artide, itipulate the qition of an< A r%h «^
other peribn, in this cafe, provided dther th« purchaier or the poi^ ^ttiShmT
feflbr of che option confirm the iale, it is vdidf or, if either of them ^^^^
annul it, it becomes void*— The reafon of this is, that the itipulatipn '^'^
ofthec^tion^pfanother is admitted, upoa zfovauraAJe €Oi^ruai$n.^^
Anahgy would fuggeil that it is ioadioifliUe, and fuch is the ojunion
cfZifer^ becauie option beingone of theaiticlesof the contrad^ it
follows
390 S A L E. Book XVI-
follows that the flipulation of it for mtatierr who is not one of the
contrafting parties^ is Blegal^ in the fame manner at if it wen fti«
pulated that (bme other than the purchafcr fliould pay the price.-—
The arguments of our dodtors are, that the eihUiihment of the right
of option, in oAe who .is not a party to the cqntrad, is hy .way of ap-
pointment from him to aft as his fubftltute. — In diis cafe, therefore,
the option is vefted both in the party and in hisiuhftitute; andconfe*
qucntly It is lawful for either of them to confirm or annul the contra^.—
y one of them Ihould confirm, and the other annul the contraft, in this
cafe xhefrfi of theie ads which may havelieen performed becomes
valid. If both ihould have been* performed at. the fame time, then
(according to one tradition) the a£fc of the cmtracting party is valid;—
or (according to another) the validity of the iomulment is preferred to
that of the confirmatiim. The principle on which the firft traditi<Mi
proceeds is that the ad of the contrading party is of fuperior force to
that of a fubftitute who derives his authority from him ; and the prin*
ciple on which the fecond tradition is founded is that annulment is of
fuperior force to confirmation, becaufo annulment may take place
after confirmation, but confirmation cannot take place after annul-
ment. Some have aflerted that the firft tradition is .conformable to
the dodrine of Mduunmed^ and the fecond to that oi Mao Toofyfi-^
arguing from their diflferent decifions in the caie of an agent of iale and
his conAitucnt: for if both of them ihould at the £tme time (ell the
fame thiug to diflfcrent perfons, the fide of the conftttuent is valid, ac*
cording to Mohamnud\ — ^whereas, according to Aboo Toofrf^ both iaks
are valid; but the article fold muft be divided between the two pur-
chafers.
Cafe offeO. ]p a pcribn fdl two ilaves for a thoufand £rmSf iUpuIating an op-
fll^esr^tiia ^^^^^^ condition with refped to one of them, the cafe admits of four
r^Witif <Ji*f<^*'^"^ ftatcmcnts.— I. Where the fdler does not oppofo a (pc^ific
refpcaiow price to cmB of the (laves, nor fpecify the one refpeding whom the
optional condition is to operate; and this is illegal, becaufe of the un^
6 certainty
CflAP.IL SALE. 391
certaintj both as to the {uhjcSt of the fale and the price; for as the
(lave, concerning whom the condition of option is ftipulated, is not (as
it were) indiukd in tbefak^ and as he is not fpecified, it follows that
theother, who is the iubjcA of thefale^ is alfo unknown. — 11. Where
the feller fets a particular price upon each of the (lavcs^ and alio fpeci^
fies to which the condition of option relates; and this is valid, be* .
caufe of the certainty with refpecb to iht fubjeH of the fale and. the
price.
Obj£ction. — It would appear that the fale is in this cafe illegal;
becauie the flave who is the fubjed of the conditbn is not, in effed^
included in the ≤ and as both are joined together in one declaration^
it foUo:w9 that the acceptance of the ^e with relation to what is not
the fubjefl of i^ becomes a conditinii of the validity of the.iale with
regard to what £f ; it being the fame, in (hort, as if a perfon (hould
join a freeman and a flave in one declaration of fale, which is illegal,
becaufe the acceptance of the fale with regard to what is not capable of
beiag the fubjed of it (namely, tht/reanan) is here made a condition
of the validity of the fale with refpcd to tht Jlave; and this conditiou
is the caufe of annulling the fale; it therefore follows that the fale is
in the fame manner invalid in the caie in queflion, as the iame con-
dition (which occafioos an annulment of the fale) is equally induced in
thisinftansa
RsFtY.^~The fade, in the cafe in queflion, is lawful ; becaufe,
although the acceptance of the fale, with reiped to the flavc concerri*
ing wboix\ the option is ftipjilated, be a condition of the validity of
the fale with refpeft to the other (Uve alfo, ftill fuch condition does
not annul the iale, fince the optional (lave is a fit fubjeft for fale: it is
therefore, in faft, the fame as if a perfon were to join a Modabbir and
an abfoluU ibtve in one declaration; and as the fale is in that inftance
valid^ {q alio i^ the cafe ia queltion :— contrary to where a feller joins
a (bveand zfrteman in one declaration; becaufe z freeman b not a i!t
fubieaof£ae.
39* SALE. BoocXVL
—III. Where the i^ler oppofit a particiilir price to each Ibvey
but does not fpecify to which of them the conditioa of option
relates.— IV. Where the feller ipectfies the flave to whom the ooodi-
tion of option rehtes, but does not oppofe a fpecific price to each qf
them.— In both thefe caies the £dc is invalkly becaufe of the un-
certain^ of thtfuifea of the fide in the c&e infiance» and of the price
in X^cwtber.
Pp|^^*- If a peribn purchaie one of two pieces of cloth for ten £rm^ on
the condition of his being at liberty for three days to determine on die
particular piece which he may approve, fuch iale is valid; and die
rnxM^oLT ~^^*^**^ ^® ffipulated » called an cptim tfdttemiifiaikH^. — ^A iale is
of/Arvr, bui in the fame mamier valid, where a peribn purchaics, with a referve
of option^ one out of /Arif^ pieces; but it is not lawful to purchaie in
that manner one out ^Sfutr pieces.-— What is here advanced proceeds
upon a favourable con(lru{B<m. — Analcgy would fuggeft that the iale is
not kwful in either of thefe diree cafes ; becauie the futjeft 6i file is
uncertain ;— and fuch, alio, is the opinion oiZiffer and j&^.-— The
reaibn ibr a more favourable conftruftion is, that opdonal conditions
have been ordained for the benefit of man, in order that he may
thereby be enabled to fet afide the bad, and to chufe the good for
himfdf : — ^it is, moreover, evident that man ilands in need of con-
tniAs of this nature, in order that he may be enaUed to ihew the
merchandiie to ibme peribn in whoie judgment he confides ; or, if an
agent be employed, that he may ihew it to his conilituent ; and diis
the feller would not penmt him to do iinlefs foch a condition were
ilipulated.— This ipedes of fale, therefore, bdng in effeA the fame as
an eptumal xxit^ it follows that it b in a fimihr manner lawibL— This
neceinty on the part <^man, however, is fdly aniwered by means of
three pieces, as this number comprehends the three qualities ofgooJf
Cha?. IL SALE. 393
bad^ and nie£um\ and there can be no uncertainty with refpe£l to
the rubje£t of the rale9 in this fpecies of contract, to occafion con*
tention, as regard Is had folely to the price on which the purchaler
determines.
OBjECTiON.*»Why then is it not lawful with refped to four
pieces, as in that cafe alfo no contention would take place ?
Reply. — Although, in this cafe alfo, there would be no uncer-
tainty with regard to the fubjc£t of the falc, to occafion contention,
flill the efficient canfe of the legality (namely^ the neceflity of man)
does not here exift ; and it is therefcsre unlawful.
Some have obferved that^ in a cafe of option of determnaiion^ a Ab ppiioii of
condition of option is alfo indifpenfable ; and this is recorded in the ^Tiavoiwl
Jama Sagbetr. Others again, (following the Jama Kabeer^) lay acooiUtiaorf
that the condition of option is not requi(ite ; and. hence it is inferred
that what has been recorded in the Ja^rta Sagbtcr is that fuch a con-
dition i^tcn takes place \ not that it is abfolutefy necefary. It is to be fo^^jJ^S^
obferved, however, that if, in a (ale ftipulating an option of determi- tbedctermil
nation, it (hould not be thought neCeflary to in&rt a condition of op* |!^^c^^
tion, the period for determming the choice muft in that cafe, accoid- e»wt.e»oeed
ing to Haneefat be limited to three days : but according td the two dif-
ciples it may be fijced to whatever period they plcafe* It is aUb to be or the v-
obferved that in acafc oi option of determination^ the fubjeft of the fide JL^^ p^
is one piece of cloth (for example), and the other piece is a depofit ^^^^
in the hands of the purchafer^. If, therefore, one of the pieces be the rufjcflof
loft or fpoilcd, the fale takes pkce with refped to it in exchange for Jj^^^J
the ftipulated price ; and the other price is as a depo/Sti bccaufe it as tt dep^i:
impolllbleto rejeft the piece which is loft or (polled. If, on the other
hand, both pieces be loft at the lame time, the purchafer muft in that
cafe pay the half of the price of each» bscaufe the determination of
• And confequendy (accofdiiig to the laws of iif^fn) be is re^AllUe in cafe of acci-
dents, for •m pitet $nly.
Vol. II. £ e e purchafe
394 SALE. • Book XVI.
purchaie not having been made with refped to either of the pieces, it
follows that iaie and truft operate indefinitely with refped to each.
andbotKnay Jp^ befides the Option of determination, a conditional option be
in oOe ofa alio ftipulatcd, thr purchafer is in that cafe at liberty to return both
coodition of
pieces.
The heir of Jp a perfon poflefling an option of determination (hould die, his
d^J!S^S^ heir. is empdwered to retum one of the a:rticles; for an option of de-
dcte^M^ termination (as has been before explained) ncceflarily dcfccnds to an
tion mxf fc. heir, becaufe of the implication of his property with that of another;
^nvo tr. whence he is not, in his option of determiiiation, rcftridcdto ibree
t^ S^* days.— If, on the contrary, a perfon recently pofleiied of a power of
pufchafer't cpftM die, his heir hae no opt'ion, as was before explained*.
<muon»tiiaife
othisdetth.
Opdcioitde. 1f a perfon purcha(e a houie utider a condicion.of option, and the
'^oLmde ^pi^^^g houfe be sifterwards fold before the expiration of the period
blading, by of optxon, and the purchafer under the condition of option claim the
pIi!cW'tf in* right oiSbqffa^ in this cafe his aflcnt to the firft (ale is thereby vir-
'♦^•^w» tually given, and his right of option exifts no longer; — ^becaufe his
fokL daim iASbaffa prefuppofes him to be confirmed in the adjoining pro-
perty, otherwife he would have no right to make fuch a chim ; and
it is therefore inferred, that he firft tacitly annuls his condition of op-
tion, and then urges his churn* It is to be obferved that the neceflity
of this explanation arifes from the do£trine^ of Haneefa\ for, by his
taiets, a purchafer under a tooditton of option does not become pro-
prietor of the article of fate during the interim of option. The two
difciples hdd, on the contrary, that he becomes immediate proprietor
under the condition of option; whence this explanation is, with re«
gard to ibcir do£krine, unneceflary.
^ Bccanfe a cmdidoo oT option is not inheritable. (See p. 389.)
Chap.il sale. 395
If two peribns purchaie a flavc, on this condition, that both pur- An option of
chafers (hall have the option of rejecting him, and one of them after- tkm, veiled
wards exprefs his confent, the other cannot rcjcdl him, according to j^^JfoJ/^jT^
Haneefa. The two difciplcs allege that if the other chufe, he may determined
r^t€t iisjharc ia the flave. The fame difagreement fubfifts with li^uencoon-
refped to two purchafers in a cafe of oft ion ofin/peilion or option from ^\^^^
defcSi. The argument of the two difciplcs is that as the- power of ^^<*
rejeftion was vefted in both the purchalcrs, it confcquently operated
ii) each oli them ; and the rejedion of one cannot abrogate the right
of option with refpe^l to the other, as that would Ix: a deOruftion of
Kis right, which is not lawful. The argument oi Haneefa is that the
fubjea of the fale, when it iflued from the tenure of the feller, was
not injured by the defeat o{ participation^ but if o«^ of the purchafers
lave the liberty of J cjcfting his portion /i«^/v, it ueceflarily follows
that upon the rcjeftion the feller holds the article in partnerfhip with
one of the purchafers ; and this is a defeSfm the tenure, to which he
was not before fubjcft.
Objection. — It would appear that the rcjeftion of me of the
purchafers is valid although attended with an injury to the feller,
iince the feller has himfelf virtually aflented to it, becauie in giving
fuch power to two perfons, it is evident that he aiTents to a poflible
rejeftioil by one of them.
Reply. — The confent of the feller to the injury is inferred from
from a fuppofition of his having conlented that 0;?^ might rejeA where
the power of rejcftion was given to two. This, however, is not the
cafe in the prefent inftance ; for it is to be fuppofed that the feller
underftood that both fhould declare their rejedion together i and on
this fuppofition his confent was given, not on the other.
If a perfon purchafe a flave on account of his being zfcribe^ or a I^*^ anidc
baker ^ and he prove to be neither of thefe, the purclufer is in thjit teM dc-
cafe at liberty either to abide by the bargain, or to undo it, as he J^"^ ^
pleafes ; becaufe the defcriptive quality being, the objed he had in ^^^
ee 2 view*
396 SAL £. BookXVI.
tiM|Nndiaftr view, and beuig fpcciHed as a condition in the contraft, is therefore
ccmfi^ ^ his right ; and the want of it gives him the power of diflblution if
^^^^ he pleafe, becaufe his aflent fignified was on this condition, and not
otherwife.
Objection. — It would appear that the fide is in this cafe invalid,
in the (ame manner ^^^VrMe cafe of purchafing a ma/^ flave who after-
wards proves to be z female.
Reply. — The fale in the caic quoted is invalid becaufe of differ-
ence ofJeXf which idoes not exift in the cafe in queftion. Thus a
perfon that is a baker or $tot a baker is of the fzmcjex and differs only
in the quality; and hence the analogous application of the one cafe to
the other is unfounded. It is to be obferved that a difference of the
fextioes not invalidate the fale, unlefs it defeat the purchafer*s objed.
Thus the objc£l in the purchafe of a $nan (for inftance) is different
from that in the purchafe of a wmnan^ and therefore the fale is invalid
incafcofadifference: if, on the contrary, a man (hould purchafe a i&f-^M/
on the fuppofition of its being z female^ the fale would not be invalid, but
it would remain with the purchafer to abide by it or not, as he pleafes.
It is to be obferved, however, that, in the cafe in queftion, if the
purchafer chufe to abide by the bargain, he muft pay the whole of the
price ; as no diminution is admitted on account of the defcA ofquatiiy^
which (as has been before explained) is of a dependant nature.
CHAP. III.
Of Option of Infpeaion*.
A pufcliaCer 17 z perfon purchafc an article without having fecn it, the fale of
vSde?!^ fuch article is valid, and the purchafer after feeing it has the option
• Arab. KUSr-d-Rft/ttt.
Chaf-III. sale 397
of accepting or rcjcaing it as he pleafes. SbrfH xhamtains that JJjJJji;;^^^
a (ale of this nature is wholly invalid, becaufe of the unceT-
Uinty with reg;ard to the objcA of it« The arguments of our
do&ors arc, — first, a faying of the prophet, that ** wbofieverfuir*
" chafes a thing without feeing it^ has the Hbert/ ofrejeaion^ ^terfght
" if it. Secondly, the uncertainty with refped to the objeft can-
not occafion litigation, fince, if it be not agreeable, the purchafer is at
liberty to rejedl: it.
If a peribn, having purchafcd an article unieen, ihould fiiy, ** I tltKoagli»be-
" am fiitisfied with it,** in this cafe alfo he is at liberty, after fight of £*£l^'"''
it, to rcjcft it if he pleafe, for two rcafons. First, as the i^titm rf h»vefi|«Uicd
infpeaion^ (according to the tradition already quoted) refts entirely don. ^
\2pon infpe^ion, it follows that it becomes cfbblilhed by the infpec-
tion, whereas before that it was not eftabliflicd : and as the acquiefcence
fignified previous to the infpedlion is not repugnant to this, it confe-
quently remains eftabliflied.
Objection. — ^If the right of option do not exift previous to the
aaual fight of the article of £de, it would follow that the purchafer,
before infpe£tion, has not the power of annulling the contrad;—
whereas we find, on the contrary^ that he is actually poflefled of this
power before infpefkion.
Refly. — His right to diflblve the contraft, previous to this in-^
fpeAion, proceeds from the contra£^ not bemg then bindmg; and not
from any reference to the tradition above quoted.
— Secondly, The purchafer^s acquiefcence in the article before be at-
tains an aAual knowledge of its qualities, is perfeftly nugatoiy; and
hence no regard is paid to his acquiefcence previoufly fignified :— con-
trary to his reje^tion^ which is regarded, becaufe the contrad has not
as yet become binding.
If a perfon fell a thing which he himfqlf has not (een, he has no sjOir baa
option ^^V^^
398 SAL E. Book XVI.
^"rWe^*^* ^//w of infpetlim* \ bccaufe the tradition before cited limits this
option entirely to tlie purcbafer: moreover, it is related that OfinA^
fold a piece of ground belonging to him at Bajra to lUba-Bin-AbeC''
J(^la\ when a perlbn faid to Tilba^ " you have been injured in this
•* matter ;'* but he replied, I poflefs the liberty of rejection, baving
furcbafeda thing unfeen: — ^aftcr which another faid to O/rndfty •• You
•• have been injured in thisyi/r," and he replied, " I have the liberty
** of retractation, having fold a thing which I bad not feen*?* upon
which Mazim was appointed arbitrator between them ; and he de-
creed that the right of option refted only with Ttlhai and this decree
was given in the prefence of all the coiiipanions of the prophet, none
of whom objefted to it.
Theoptiotoof The right q( Option ofinfpe£lion is not, like an optional condition^
^aue^iQ confined to a particular period: on the contrary, it continues in force
^SSicr rf^ until fomcthiiig take place repugnant to the nature of it, — It is alfo
timcafcertlic to be obferved that whatever circumdance occafions the annulment
^Icif deftroyed of an Optional condition^ (fuch as a defeat in the merchandife, or an
^[^^"' cxercife of right on the part of the purchafer,) in the fame manner
occalions an annulment of the option of infpeftion. If^ therefore, the
facd as would ^xercife of right be fuch as caiuiot afterwards be rctrafted, (fuch as
tStionof the emancipation of a flave, or the creating him a Modabbir^--^r^ if
option. jj 1^ ^^^ ^ ^Q involve the rights of others (fuch as abfohtte fale^
ffiortgagCy or A/W,)— the option of infpeftion is immediately annulled,
whether the thing have been feen or not; becaufe thefe ads render
the falc binding, and the exiftcncc of the option is ihcompatiUe with
the obligation of the fale. If, -on the contrary, the eatcrcifc of right
be not fuch as to involve the right of others, (fuch as a (ale with an
optimal cmdition^ a fimple tender to purchafe, or a gift without dc-
• That i$, he has no power o( retraaatm^ if| upon infpcaion of die irticlc fold, he
fliould happen to repent of the (ale.
Kvery,)
Chap. III. SALE, 399
livery,) — the option of infpeflion is not annulled previous to the aHual
^i&/ of the article fold ; becaufe ads of this deicription are not of a
ftrongcr nature than the pur^bafer^s acquiefctnce ; and as the pur-
chafer's txprefs acquiejcence to infpe&ion is hot the caufe of annulling
the option of infpeclion, (as has been already demonflrated,) it fol-
lows that the ads above defcribed do not annul it, a fortiori \ — where-
as thofc ads after infpedion annul the option of infpedion, as they
indicate an acquieicence, and an acquiefcence after the fight of the
thing occafions the annulment of the option.
If a perfon (hould look at a heap of grain, or at the outward ap* Option of ia-
pearance of cloth which is folded up, or at the face of a female fiave, ^^^^
or at the face and pofteriors of an animal, and then make purchafe of the ^^^^^^
fame, he has no option of infpedion. In (hort, it is a rule that the ticlc, yA^m
fight of all the parts of the merchandife is not a necefiary condition^ be- m tlkmpkof
caufe it is often impradicable to obtain it, and therefore it is fufEcieat ^ **'^*
ta view that part whence it may be known how far the objed of the
purchafer will be obtained. In the purchafe, therefore, of articles of
which the parts are limilar, (fuch as articles (old hy weight or m^a-
furemnt of capacity^ ^nd the mode of afcertaining the goodaefs of
which is by prcfcnting a fample to the purchafer) the fight oizpart
b fufficient ; that is, no option of infpedion can afterwards be claimed
unlefs ^he other parts of the article (hould prove inferior to the part
which has bcen^^;i. In the purchafe, on the other hand, of things
of which the individuals are not fimilar, (fuch as cloths or animals,) the
fight of one does not fufficc ; — on the contrary, the purchafer muft fee
each individual article. Of this kind are eggs and walnuts, according to
Koorokbee. (The compiler of this work obfcrves, however, that thefe are
of the nature ofwbeat and 6ar/ey^ lince their individuals are nearly alike.)
— Now fuch being the eflablilhed rule, it follows that the fight of a
heap of wheat is fufficient, as the quality of what is hidden may be in-
ferred from what is feen, wheat b^g an article fold by meafurement
of capacity, and the quality of which may confequently be afcertained
'5 by
400 SAL £. BookXVL
by means of a /ample: and in the fame manner, the fight of
the outfide of a piece of cloth fuffices, unlefs there be a particular
part within the folds neccflary to be known, fuch as (iu^a^;i/f^ cloths)
thepaiterHf in which cafe the option of infpeAion is not annulled until
the purchafer fee the infide of the piece. In the cafe of a man*, on the
other hand, a fight of ihe/ace is fufficicnt ; and in animals a fight of the
/ace niKl pojfenors. --^Somc allege that m animals a fight of the fore and
hinder legs is uecefiary. What was fird related is on the authority
of /ilfoo Too/a/ In goats purchafed on account of their flefli it is ne-
ccflary to fquccze and prcfs the flcjfh in the hands, as that afcertains
the goodnefs of it. But if purchafed for breeds or for giving milk^
it is neceflary to look at their dugs. In purcha(ing victuals ready
drefied it is necefiary to ta/le them, to afcertain their goodnefs.
Option of If a perfon look at the front of a houfc, and then purchafe it, he
thcpjixhafc has no option of in/pe&ion^ although he (hould not have feen the apart-
of «^-/^- ments: — and fo alfo, if a perfon view the back parts of a houfe, or
the trees of a garden from without. Ziffer has faid that it is requi-
(ite that the purchafer infpefl the apartments of the houfe. Our au-
thor alfo remarks that what is here advanced with refpefk to a fight of
the /ront or back part of a houfe being fufiicient, is founded on the
cudoms of former times, when, all their buildings being of an uni-
form nature, the fight of the front or back parts fufficed to afcertain
the interior parts ; but that in the prefent time it is ytxy neceflary to
enter in, as buildings are in thofe days varioufly conftruAed, whence
a view of the outfide is no flandard by which to judge of the infide ;
and this is approved.
An mifiafif TiiE infpc&ion of an agent appointed to take poflefilon of an ar-
rpeft*"iA^th€ ticle purchafed is equivalent to the infpeCtion of the purchafer^ and
^ Meaning z^t fet up to laic.
confequently.
Chap. IIL SALE. 401
confequentlyi after the infpeaioa of fuch agent, the pwchafer has fartmamr
no power of rcjeding the article purchafedt vivdc{$ ia a cafe of a de* ^[^ ^*
ft&. The iufpe£tioa, however, of a mcjfen^er on the part of the pur-
chafer is not equivalent to his vmn infpccUoiu This is the do£trinc
oi Haneefa. The two difciples hold that an agent and a msjfcnger are
in efieA the fiune, (that is, the infpe£tion of neither is equivalent to
<that of the purchaleri).and confequently, that the purchafer has after*
wards the liberty of rge£tion in both iuftances. The argument they
adduce in fupport of theii opinion is, that as the conftituent has ap-
pointed the agent merely to take poffejjion^ and not to annul his option,
it follows that fuch annulment does not belong to him;— in the fame
manner as holds with relpeA to option from dtfcR\ in other words,
if an agent (hould knowingly take pofleflion of a ^eSlroe article, the
option of the purchafer is not thereby annulled ;*~and in the (ame
manner, alfo, as holds with refpe£t to a condition of op/ion; that is, if a
perfon (hould purchafe any article, with a referve of option, and his
agent, in the interval, take poflellion of the article, the purchafer^s
right of option is not annulled ;-*and in the fame manner alfb, as
holds in the fW^/ annulment of an option of infpedlion; as if an
agent (hould take pofleiTion of an article concealed, and after luipedlioii
exprefsly declare the q>tion to be null; in which cafe the purchafer*s
right of option would neverthclefs flill continue in hrcc-^Haneefa^
on the other hand, argues that^/sm, or the aft of taking poffeffion^ is
of two kinds. — I. Perfeil^ which is the fetzin of the article with fight
and knowledge^ II. ImperfeSl^ which is the feizin of it without fight,
that is, wbi^ it is concealed. The Jirji is termed ferfeil^ and the
fecond imperfeQ^ becaufe the completcnefs difeifsin depends upon the
complctcnefs of the bargain ♦, which, cannot be complete whilft an
option of infpc£tion remains; and as, in ^\t former inftancc, this
option has been done away, it follows that the bargain is in that in-
flarice complete and perfcft; but as, in the latter inflance, on the
• Arab. Safka^ literally, the ad cf/rikitig hanih "» making » baigain.
Vol. II. Fff contrary,
40t SALE. BookXVL
contrary, it flill continues in force, it follows that the bargam is in
that inftance imperfeR. — ^Now as the cmftituent is empowered to take
pofleffion in either of thefe modes, it follows that the agent is equally
empowered, imce his conftituent has appointed him, in an abfoluie man-
ner, his agent for feizin. Where, however, aa agent takes pof&flion
of an article without feeing it,, his power is terminated by fuch im-
perfeA feizin, and he confequently cannot afterwards exert an option
of infpedtion, (o as to deflroy that privilege on die part of his confH«
tuent by any exprefs declaration. It is othefwiie in the cafe of an ep^
tmfrom defeR^ becaufe, as that is. no bar to the completenefs of the
bargain, the feizin is in that infbnce ferfcBy notwithfbnding the con-
tinuance of the option of defeft.— ^Concermng the czkcS amStitm §f
9ptlon there is a difierence of opinion. — Admitting, however, that the
agent has not the power of anmsICng fuch option, it is becauie the
cmjiituen* bhnfdf is not in this cafe empowered to make a perfeft^
iazin, in as much as the 0^^ of fuch conditi6ual option \% experience
and trtal^ which can only be acquired ifter feizin ;- and as the confti*
tuent himlelf is not empowered t& miike a perfect feizin, it follows
that his agent cannot be fo. — With rcfpcflt tx> a mejfenger^ he poflefles
no power, being barely commiffioned to deliver a meAge, and
cannot therefore be capable <£ taking foraial poflbffion of any
ching.
The iofpcc- Sale or purchafe,. made hy a hlhli perfon, \s vaCci: and' after
|!^^my^ purchafe, he has £K11 an option, as having purchafed in article with-
ua^\rittmih. out feeing it ; which option is. determined by. the /^«ri& of the article,
'^' provided it be of fuch a nature that the touch may lead to a kYiow-
ledge of It; or by the ftnelU if it be of a nature to be known by the
finell; or by the tafte, if the article be of an efcuknt nature ;-^n
the fame manner as all thefe modes determine the option of a perfca
poUefled of fight.
This
Chap. IIL SALE. 4^3
Ths option of a blind perfon, in the purchafe of bnd, is not de- or fm i pur*
termined until a defcription of the qualities of it be given to him; be- ^^^^lifJh).
caufe fuch a defcription is equivalent to zjigbt of the objeft, as in the
cafe oiSHUm fales.— It is recorded from Aboo Twfaf^ that if a blind
perlbn, in purchafing land, (hould (hnd on a fpot whence, if he
poflefied his fight, he might infpeft the whole, and (hould then declare
^M am content with this ground which I have purchaied,** the right
tif option is annulled; becaufe the fhnding on the Ipot in this manner
is analogous to the 4iRual view of it ; and the femblance is equivalent
to the reality where the reality is unattainable ; as in the cafe of a dumb
perfbn, the motion of whofe lips is deemed equivalent to the reading of
the Kcrani or, as in the cafe of a bald peribn, with re(pe£t to whom
the motion of the razor to and fro over his head is deemed equivalent
(in caie of his making a pilgrimage to Mecca) to mRwdJhceomg.^^
Hoofn-Bin-Zeeydd has faid that a bl'md peribn muft appoint an agent
for {gaziVLy who may infpeft and take poflefHon of the article xm his
behalf; and this is conformable to the dodrine oi Kahufa^ who is of
opinion (as has been already explained) that the infpe£tioh c^an agttit
is equivalent to that of his cmftiiuent.
Irapcrfon, having fcen one of two garments, fiiould purchafe A fight of
both, and (hould afterwards fee the other, he has then the option of ^tc?«?iSch
rrjeflifig both; becaufe, as garments differ cfTentially from one an- ^^^f}^^^
other, a fight of one is not equivalent to a (ight of bctAi and there- ftnilcavcsa
fore his right of option remains with refpc£t to the one he had not j^^^^
fcen. He has it not hi his power, however, to rejedk that one (ingly;
for in fuch ca(e an alteration in the bargain would take place before
the completion of it *, as a bargaui is not complete whilft an option of
infpedion
* A coniraA of die, when fettled by the parties, <loes not become complete until the
execution of it ^ yet it cannot admh of any aUeratlon of the terms of it in the interval* .
Thus, if two bulhcls of wheat be fold for two Jirms^ and the pardes, before the execution
Fffa of
dufc.
404 S A L E. Book XVI.
inrpeftion remains: and hence it is that the purchafer may rgeA the
article, independant of an order from the Kdze^^ or the confent of tho
feller; and fuch reje^on is adifiblution of the fide from the be«
ginning^ — in other words, it becomes the fame as if the contraft had
never exiftcd.
Theopcjonis If a perfon poiiefltng the option of inipe£dbn ihould die, the op-
^^l^^h^ tion in fuch cafe becomes null ; for (according to ourdodors) it is not
^^P^ a hereditament, as has already been explained in treating of qWrnui/.
vra%ii ^vSHNB ■«
itfcftcd. conauioni.
f^S^^^' Iv ^ perionr, having once ieen an article, (hould* afterwards, at a
' r to pur- dtftant period^ purchaic it, and the article, at the time of purdiale,
exift in the form and defcription tn ^rfaichhe firft faw it, he has not in
this cafe any option, bccaufe he is poflefled of a knowledge of the
qualities from his former infpedioii; and an option is allowed only in
deffS of fuch knowledge. — If, however, the purchaier ihould not te*
cognife or know it to be the fame article, he has in that cafe an op-
tion ; becaufc under fuch circumfiances his confent cannot be sm(Aied:
or if, on the other hand, the nature of the article be changed, he has
an option ; becaufe the qualities being changed, it becomesiu faA the
fame as if he had never feea it*
If a purchafer and feller difpute concerning any recint * change
in the nature of the article, — the purchafer aiTerting this circumftance,
of the coDtnAi mtttuAliy tgrec to reduce the fide to «i# bufliel for mu £rm^ this agree-
menti as being an alteration of the terms previous to their fulfilment, would be unlawluL
In Ibort it is requifite, in this inftance^ eidier that the parties previoufljr diflblve the firft
contrafi, and thai enter into a new contraA of fale of one bufliel for one £rm\ or that they
Ibrmallj complete the firft contraA by mutual fetzin, and that the purchafer then Icll one oif
the buflids to the feUer for one ^irw.
• Arab. Hi£s^ [or HMtb^} meaning, fupervtntent 9ip§n tbe imtrgff.
and
Chaf.IIL sale. 405
and the feller denying it,— in thi$ cafe the allegation of the felldfr
confirmed by an oath, muft be credited; becaufe the interv^ between
the fight and the purchaie being ihorti. the probability is in favour ot
the aflertion of the feller, that fuch change did not liappen till aftci
the purchafe had taken place. If, however, a long period (hould in«-
tervene between the fight and the purchafe, our doAors are in this
cafe of opinion that the allegation of the purchafcr is to be credited;
becaufe, as it is the nature of every thing to decay in courle of tiine,
it follows that his aflertioa is fupported by probability.
Jf the parties difpute concerning the period when the ar-
ticle was infpefled, the feller aflerting that the .purchafer had firft
feen and then purchafed the article, and the purchafer denying
this, — in that cafe the allegation of the furcbafer^ upon oath» is to be
credited^
If a perfon purchafe- a- btrndlc of clothes of a Zeota^ with- ^fJI^Vf*
out feeing them, and afterwards fell or give away part of th6m; of «/«?<?
in this cafe he has not the power of rejedling any of thofc that re- ii£|^£;
main unlcfs they IhouW prove defeaive. In the fame manner, if ^^^^^^^^^
he pordiaie a bundle of clothes of a Zcotd^ ftipulating a con-
dition of option, and afterwards fell or beftow in gift part of
them, his right of option is annulled; becau(c it is not in his power to
rejeft what he has no longer any property in ; if, therefore, he were to
rejeA the remainder^ it would induce a deviation from the bargain before
the completion of it ; (Jbr the exiftcnce of an option of infpeftion, or
of a condition of option, is a bar to the completenefs of the bargain.)
It is otfaerwilo in an optmfrom iefe3\ as the bargain, notwitfaftanding
the exiftence of fuch option, is completed tipon iiuzing the article
« A tribe of black drAi.^si Z«*f.-. A tribe of AraU who foraieily inlabited the
«fcimy region lying bclweeaWWff and Jtf/rtf; they were defeated sod reduced to fcnri-
« tudc by Mntafim^ the eighth J:*itf/,--^X)# Huhikt.)
fold.
A^ SALE- BookXVL
fifldy although it be not •complete iefore fdzin i-^jA the prefent cafe
proceeds on the fuppoiition of pofieffion having been taken. If, how^
ever, the fupervenient deeds of fale or gift, on the part of the
purchaier, 1)e rendered ndl, (as if the Jkdndary purchafer (hould
undo the bargain on account of the 4li(co¥ei7 of a defcd,— or, as if the
purchafer himfelf (hould recede from his gUt,) in this cafe the opdon
of infpeftion ftill remains.-^This is from Sbimfly-al-jfytna. It is re«
lated, as an opinion of jtboo Toofrf^ that an option of in^£Bon once
annulled cannot again revive, any more than a conStional option; and
KaJoore has adopted this dodrine.
CHAP. IV.
Of Optical from DefcSl^
A iwrchafer, If a pcrfou purchafc and take pofleflion of an article, and ihoidd
di^7n"iL* afterwards difcovcr it to have been dcfeSivc at the time of lale, ft is
article jmr- ^t his Option ^her to take it for the full price, or to rejc^ it ; becaufe
Kber^'to re. onc rcqulfite, in an -unconditional contraft [of fale,] is that the iub*
feS^? ^ ** jeftof it be free from dcfea;~when, therefore, it proves otherwife,
the purchafer has no option; for if the contrad were obligatory upon
liinit without his will, it would be injurious to him. He is not^
however, at liberty to retain the article, and exad a compenfation,
on account of the defcA, from the feller; becaufe, in a contrad of
fale, no part of the price is oppofed to the qtmRiy of the article ;-^nd
alfb, becaufe the feller does not confeiit to be divefled of the property
for
CitA». IV. SALE. 407
hr a lefi priee ihrn, that which he ftipulaiM^:-«»if, therefore^ the
purchafer weft to retain the defe^Uve article, and exaft a compcnfa-
tion from, the Mer on account of the defcA^ it woul4 be injurious to
the latter t'-'but it is poflible to obvbte the injury to the purchafer
without entailing an mjury on die feller, by permitting him either to
ttban the article, if he approve of it with the defeft, or to rejed it. —
If, however, the purchafer,. at the time of fale, or of taking poflcf- "^jJof t'ht'
fion, be aware of the defed* and neverthelefs- knowingly and wilfully ^^ hf^^*^
make the pxirchafe, or take pofleffion,. no option remains to him; be*
cauie when he thus purchafirs or takes pofleffioaof the* article, it is
evident that he aflent» to the defed*
WiTA^TEVsa. may be a caufe of diminiflung the price amongft ^^^Huittver
merchants is confidered as a Aefed; bccaufe injury is occaiioned by fmUtt an'
deficiency in point of vahie ;• and deficiency in point of value occafiions jJJ^f " *
deficiency in. price i and the nvDde of afcertaining this is by con*
fulting merchants who are praAifed in eftimating the value of
arddesw
. A DisposiTiOK to abfcond, or to make urine upon carpets, or to Defeasind-
commit theft, are defe£ks in chifdren during their nonage, but not drcnaffeaihe
after they attain to the age of maturity. If, therefore, any of thcfc Srini*iJ*'^
defeats appear in an infiint flave during childhood whUft in the hands ^^^^y* ^^
* * not after "*
of the (eller, and afterwards-appear in him during childhood whilft in urity.
the hands of the purchafer,,he [the purchafer} is in that cafe at liberty
to return him to the feller, in virtue of option from Jefe&i bccaufe
this is the fame defcft that exifted whilft in the poileflion of the feller.
If, on the other hand, any of thefe dcfeds fliould occur in him, in
-the purchafer^ hands^ after he attains to maturity, the purchafer is
not at liberty to return him by optimfrom iefeH\- becaufe this defect
is different from tfa:^ whidi appeared during childhood in the hands of
the feller, fince dieie efidts proceed firom different caufes in^the pe-
riods of childhood, and maturity; for the niaking of urine upon a
J carpet
AoZ SALE. BookXVI.
carpet (for iniUnce) during the tune of childhood, is owing to a
weakneii in the bladder, — whereas, after maturity, it arifes from a
difeafe in the interior parts; and, in the fame manner, the running
aw(y of a child is from a defire of plaj; and thecommiflion of theft
from tbou^tkffnefsi but theie, where thejr occur after tnaturity^ are
the effcft of innate vfickednefsj^Hj a child is here meant one in its
perfeQ ftnfiix for a child not in its perfeft (enfes is incapable ofrun^
ing away ; whence it is that the term ufed in that cafe is Jo/l ox firmed^
not ahfcwdei: — the running away, therefore, of fuch a one is not a
defeO.
L«Biqreper. Madness during infancy operates as a perpetual defed: — ^in
p^4cJ«ai other words, if an infant flave be fubjeft to lunacy in the hands of
emtcotr ^^^ icUcr, and the lunacy recur whilft in the hands of the purchaier,
after ckciak. whether during childhood or after nuturity, the purchafer is at liberty
to return him to the feller; becaufe this madnefs is in effect the (ame
as had originally exided whilft the flave was yet in the fcUefs hands,
as being occafioned by the fame caufe, namely, an internal malady.—
It is not, however, to be underftood (as fome have imagined) that the
return of the madnefs is not required as a condition to enable the pur-
chafer to diflblve the bargain ; for God Almighty, as being all power-
ful, may remove the madnefs, although that feldom happen. Hence
it is neccflary that the madnefs return, to enable the purchafer todif-
folve the bargain; for, unlefs it actually return, he has not this privi-
ledge.
Dcl»at A BAD fmell, from the breath or armpits, is a defeA in regard to
r"i?ih?Se ftmak (k ves, becaufe in many inftances the objeft is toJUtp with them ;
^i£!^y^ and the cKiftence of fuch defeats is a bar to the accomplifhment of thai
t^^mtda. objed. — ^Thefe, however, are not defers with regard to mak flaves;
becaufe the objeA, in purchafmg them, is merely to ufe their fervices;
and to this thefe defeds are not obftacles, fince it is poifible for a flave
to ferve his maflcr without the neccflity of the matter's fitting down
with
Chap. IV- SALE. 409
with him» (b as to receive annoyance from thcie dcfe£ls. — If, how*
ever, they proceed from difeafe, they are confidcrcd as defects with
regard to nude flaves alio.
Whoksdom and ia/lardj are defeats with regard to zfemak (lave,
but not with regard to a nuJe ; becaufe the objeft, in the purchafe of
zfanale flave, is cohaUtation and the generation of children, which
muft beaffedled by either of the above circumftances; whereas, the
objeA in the purchafe of a $nalc (lave is the ufe of bis Jirvicesy the
value of which is not depreciated by his committing whoredom. — If,
however, a male flave be im^ift a£&%^ to whoredom^ our lawyers are
of opinion that it is a defeat, becaufe in the purfuit of women he negledts
the fervioeof his matter.
Infidelity is a defefk in both a male and female flave *; becaufe tnfidelitx is &
the difpofition oizMuffuhnan is averie to the fociety of hifidels; and mah^/i-
alfo^ becaufe as, in 'the expiation of murder, the emancipation of an «^^*^^
infidel (lave does not fuffice, it follows that the pofTeiTion of fuch a
(lave is not wliat is de(ired, (ince a part of the objeft is thus defeated.
If, on the contrary, a perlbn (hould purchafe a dave, on condition of
his being an infidel^ and he afterwards prove a Mujfuhian^ the purchafer
has no power of diflblving the bargain, (ince the exemption from infide-
lity is no defbCL
A TOTAL fuppreflionof the courfes, or an exceflive evacuation of CoDfticu.
them, are defers with refpeft to a female (lave, as they proceed from a^swe dc
internal maladies. It is to be bbferved, however, that the want of ^j^^
the courfes is not confideied as a defed uptil the extreme period of ma-
turity be dapfcd, which m/cnudes (according to Haneefa) i^fewnieen
ycarsi and this knowledge muft be had from the information of the
• iTkic iS| fiippofiiig tlie flave to be puidufed u 1 MHftJmn^ and he prove co hare
been an infidel at the time of iMircbafe.
Vol. II. G g g (lave
410 SALE. BookXVI.
(lave herfdf. — ^If, therefore, a perfbn purchaie a female (lave ar-
rived at full maturity, (that is, (Wenteen jeara bf age,) and
learn from herfelf that her courfes have fiot -appeared, he is then
entitled to return her to the feller before taking pofleflion ;. and
even afttr taking pofTeilion, provided the feller (imply deny the cir-
cumdancc, and refufe to confirm it with an oath» If, however, the
feller deny the circum(hnce upon oath, the purchafer is not entitled to
return her.
b emidtd^ ^y ^n ^»cle, after being fold, (hould receive a blemi(h in the
ST^^ hands of the purchafer, and the purcha(er (hould afterwards leara that
in in trttde it had alfo a blemifh at the time of (ale, he is, in that cafe, entitled
ISifijJnc^ a to receive from the feller a compen(iKion for the defed; but he is not
fimherble. permitted to return it to him, as that would be attended with an m-
hands I bvt^ jury to the (eller, fince it would neceiiitate him to receive again into
this cafe, ic- his property a thing with two blemi(hes which, in iflliing from him,
twm hiotbc i^ad only ene. As, therefore, the return of the article is in this cafe
impracticable, and as it is neceflary to remove injury from the pur-
cha(er, the expedient of entitling him to a compenfation from the
feller for the defeft has-been devi(ed: uniefs, however, the (eller
(hould confent to receive it with the two blemi(hes^ and voluntarily
acquiefce in his own lois, — ^By the phrafe comfenfatknfor defeSl^ is to
be utiderftood, throughout this work, the difierence between the
value of an article in its ferfea (late, and the value it afterwards bears
in its iefidlvoe (late.
Af"f^^er If a perfon purchafe clotb^ and cut it up, and then, before he
compeniktioD had bcguu to few it, difcover it to be dcfe£ltve, he is in this ca(e en-
J^J^^ titled to a compenliition for the dcfcft from the feller; becaufe al-
'm^k**** though, in confequcnce of the cloth being cut, a bar be oppofed to
cut^up? '^ the returning of it to the feller, (as the cutting is a defcft which the
purchafer himfelf Is theoccafionof,) yet the return is eventually pof-
fiblc, by the feller's acquiefcing in it, which he may do if he pledc,
(ihce
Ghap.IV. 3 a li E« 4'<
fince the bar u oppofed only in t^nderaefs to his dght ; .and this right
it is in his power to forego. If, however, after cutting the cloth, the ^|j^'*^^
purchafer (hould iell it to anotherj he is not then entitled to any com- w it mc of
penfationforthedefeft; fo&jUthougH, after cutting the cloth, the bar niM^ht^
-to -his returning it to the feller may be eventually removed, by his ^t^^^*
[the feller*s] acquiefeence, yet when the purchafer afterwards dif-
'pofes of it to another, he himfelf fixes a bar to the pofHbiltty of its
being returned to the ieUer, for which reafon he is not entitled to a
compenfatbn for the defe^
If a perfon purchafe cloth, and, after cutting, either dye it or few or, if die re*
4t,— or purchafc fiour, and niix it up with oil, — and afterwards dif- cnrSimpnc/
cover the article to be defeaivcf/he is in that cafe entitled to a com- ^^^^
pen&tion for the defeA ; becaufc the return of the article to the feller wro^hcmm
is in either of thofe inffainces impraAicable, as it has become implicated pri$r m the
with a thing which cannot be feparated ; it is therefore impoflible to SSa^^ •*"'
return the article fimply hyitfelf\ nor can it be returned with the ad- T^^ut^
Jitian^ fince the addition was not in any refpcft a fubje£l of the fale; noiwitk. '
and the feller, moreover, is oof at liberty to receive it back with fuch [^^f^
addition, becaufe the-obfbcle to the return, in thefe infhnces, is nibt
in right of the feller j but in right of the law *• If the purchafer,
therefore, in any of thefe inflances, fhould fell the article, after dif-
covering it to be defeftive, he is flill entitled to a compenfation from
the feller ; becaufe, as the bar to his returning the article to him ex*
ifled previous to the fale of it on bis part^ he cannot by fuch falc be
confidered as the caufc of detaining it from the feller.
If a perfon purchafe cloth, and cut it out for dothbg on account Agptyt^
of an infant fon, and after having fewn it up difcover a defeA m it, dudbtoc^
he is not entitled to a gompcnfation for the defeft from the feller. If, f^rmJSu
• Becaufe the law (meining the text of the JE«mi) faUdi ^kf, under wiudi
head this tran&aioa falls, u being the receipt of an addliieM, wAAiceniiwgi.
Ggg z however.
4X2
in My sft
coQcerning it
which has a
rcfemice lo
the infant)
by prcclad*
ing a Rtiini
to die feller,
leaves the
purchaferno
ri^hccocom-
renfation for
adeftfA.
SALE.
Book XVI.
however^ the ion in this inftance be an adult, the purchafer is en-
titled to fuch cocnpeniation.— The reafon of this diftinf^ion is that, in
the former inftance, the right of property, with regard to the infant,
takes place immediately on the cutting of the cloth, and previous to
its being fewn ; and confequently, as the purchafer by this aA invefts
the infant with a right of property immediately upon cutting the cloth,
he becomes the caufeof the detention of it from the feller previous to
its being fewn, and is therefore not entitled to the compen&tion : — isi
the latter inftance, on the contrary, the right of property with regard
to the adult does not take place upon the fewing, nor until he aAually
take f(^ejfim of the garment; and hence, as it is by \!ci^ fewing^ and
not by the tnvefiiture in the adult ^ that the return of the cloth to the
feller becomes itnpradicable, it follows that the purchafer, by making
this inveftiture, does not detain the cloth from the feUer, and confe*
quehtly, that he is entitled to a compenfation^.
The pur-
chaier of a
Javi it en-
tilled to a
cooipeniatioa
for deffA,
after the
death or
cmaQctpatton
of the flave:
If a perfon purchafe a flave, and afterwards emancipate him, —
or the flave die in his hands, and the purchafer then become ac-
quainted with his having been defective, he is in either ca(e entitled
to a compenfation from the feller : — ^in cafe of the (lave dyings becaufe
death renders his property in- the (hve complete and p^eft, and the
impra^icability pf returning him does not arife from any z6l of the
purchafer^ but from an unavoidable calamity ;— and alfo in cafe erf* his
emancipating the flave, upon a favourable conftru£tion of the law —
Analogy would fuggeft that in this laft cafe the purchafer is not
entitled to a compenfation, becaufe the obftacle to the return proceeds^
in this iuflance, from the 2& of the purchafer: the cafe, therefisre^
^ As an infant is tocapabk of taking poflcffioabi cafe of x'A die proper^
him immediatdy on the dedaraciM of the donor, or on his [the dooor*s]«performing Ibme
aa which nanifefts his inttndoo, as inthecuCtiag of the doch by the purchafer in the
above cafe: in the cafe of an cdUr petfen, on the contrary, etHval fihiu b re^iaifise to
an inreftiture with right of prdpertjr.
is
Chaf.1V: sale. 4«3
is the fame as if he had iilUJ tht flave; and as, in that cafe, he would
not have been entitled to any compenfation for defe^, fo in this
inftance likewife. He is, however, fo entitled, upon a favourable
conftruftioti, becaufe by the emancipation his property attains to its
height and completion; for man is not, in his original nature, a fub-
jeft of property, all men being originally created free; nor can any
right of property exift with.refpe£t to him but under reftri^ion, and
of limited duration, continuing iii force no longer than until he be
made free: emancipation, therefore, like death,, occaiions a comple-
tion of right of property, and it may confequently be faid that a right
of property ftill remains in the fubjea of the fale, notwithftanding the
impoifibility of returning it, as a thing is rendered fixed and unalter-
able by its completion.— It is to be oblerved that conftituting the flave
a Mada66ir or an Jm-fFaliiiiSf in this particular, equivalent to enuifH
Cipation.
If a perfon purchafe a fllve, and afterwards emancipate him in re- imt not after
turn for property *, and then difcover him to have been defedive, he //«/ wkm^
is not entitled to a compeniation from the feller, as the detention of Ji^J^I^
the ntwm is, in efFed, a detention of the confid$raikn. — ^It is recorded, »<«» ^or
imsBLHanttfa^ that the purchafer is in this cafe alfo entitled to a ^^"^*
compeniation ; becaufe an emancipation, whether it be gratuitoufly
made Or otherwife, oocafions tho completion of the right of pro-
perty-
Iir a perfon purchafe a flave j and afterwards put hin> to death, and aorvfterius
then difeover him to have been defefikive, he is not entitled to a com- jlTttl^
pen&tionfbr the defeft, according to jFfofrg/i,— This alfo is agree- ^^^JS^
able to the Z4bir-Rduuiyet^—4t is reported, fromutioo Tcofaf^ that
the purchafer is entitled to a compenfation ; becaufe the law annexes
^ See MmamifftmfiT 0 CtmperfathK.
no
414 SALE. Book XVI*
no workny punifliment to the murder of a Have faj Us mailer *, and
the cafe is therefore the (ame as if he had died a natural death. The
principle on which the Zdhir-RAvayft proceeds is that murder^
wherever it takes place, occafioos refponfiUlitj; and as^ in the cafe
of a mafter killing his flavct the refponfifailitj is remitted only <m ac-
count of the mafter*s right of property^ the mafter coniequently, as
it were» takes the refponfibility f in return for his right of property:
the cafe is therefore the fame as if he had fold^ flave. It is other*
wife where he emancipates him without any return, as that zd does
not occafion refponfibtlity, any more than where a poor perfen eman-
cipates his portion mzpartnerfiip flave |,
A purchaicr If a pcHon purchafe any articles of food, and eat them, and be
cnmied txiT then informed of a defeA in them, in that cafe, according to Ha^
r^idwllSf: ^^5^» ^^ *^ "^^ entitled to any compenfetion from the fdler. — Ac-
ter having cofding to the two difeiples he is entitled to a compenlation«~-The
^^'^' fame difl^eace of opinion fubfifts with reipefi to the cafe of a perfen
who, having purchafed garments, and worn them until they had be-
come ragged, then difeovers that a defeft had formeriy exifted in
them. — ^The arguments of the two difeiples are that the purchafer
having performed no z6i with refpe£k to the fubjeft of 'the fale but
what is agreeable to the objeft of the purchafe, and what is cuftom«
ary, the cafe is therefore the feme as if he had emancipated a (lave.-—
The argument olHaneefa is that the return of the food to the feller is
impradlicablc, becaufe of the purchafer having performoJ an ad with
regard to it which induces refponfibility ; and the cafe i^ thercfere the
fame as that of felc or of murder. The ad of a purchafer, moreover^
although it be the objed of the purchafe, is neverthelefs difregarded:
whence it is that the purchafer is entitled to no compenfetion for a
* That is, it onlj iASfBt% the murderer Co cxpUtton by charity, falling, or odier re«
Jigious pennances.
♦ In other w#f ds, « htm iht Irft.^ I See Vol. I. p. 440.
defea.
Cha?.1V. sale. 4»5
defea, after having fold the goods, notwithftandingySi/if be one of the
objeds oSpurcbrfe.
If a peribn purchafe certain articles of food, and eat part of them, *^fo dfiy»
and then dilcover them to be defe^ive, he is not, according to J%- Mt/ttoniya
neefa^ entitled to return to the feller what remains, and to demand ^^^^
from him a compenfation for the defed in what he had eaten ; becaufe
provifions are m the nature of an unity; and the cafe is thdrefbre
the fame as if a perfon were to fell part of goods purchafed by him,
and then to difcover a defeft in them ; in which cafe he would not be
entitled to return the remainder to the feller, and demand a compenia*
tion for the defe£l; and fo alfo in the cafe in queftion. — ^Therc are
two opinions of the two difdples on this cafe. — ^According to one
opinion, thepurchafer niay retain^the remaining part of the provifions,
and receive from the feller a compenfation for the defe£t of the
whole: tnd, according to the other, he may return the remaining
part to the feller^ and receive a proportionable compenfation for the
defeft of what he had eaten.
If a perfon purchafe eggs, mufk melons, cucumbers, ^valnuts, odeorae-
or the like, and aiter opening them difcover them to be of bad quality? SJiiM?^
in that cafe, if they be altogether unfit for ufe, the purchafer is en- commoditict.
titled to conlpkte reflitution of the price from the feller, as the fale
is invalid, becaufe of the fubjeft of it not being in xtdXily property. —
If, on the other hand, notwithffanding their badnefs, they be fliU fit
for ufe, the purchafer is not entitled to return them to the feller, be-
caufe the openiog tff them is an additional defeft of his own creation:
he is, however, entitled to a compenfation for the defe£t; as by this
meante the injury he would otfaerwife fuflain is remedied to the greateft
poffible extent. Sbrfei has faid, that he is entitled to return them
lafter opening them ; becaufe tl^at is the exercife of a power committed
to him by the feller. In reply to this our do6tors argue, that the
feller has empowered him to open them in virtue ef his becoming the
5 proprietor.
4i6 SAL E. BookXVL
proprietor. Hence the cafe is the fame as where a peifon purchafes a
gamiciity and, after having cut it, difcovers a defedt in it ; in which
cafe the purchafer is not entitled to return the garment upon the feller*s
hands, although he [the feller] had authorizol hini to cut it down. —
In fliort, if the articles prove defective only in z/nuU/farlj the fale is
valid, upon a favourable conftruftion, becaufc it is incident to wal-
nuts, and fuch other articles, to be bad in a Jinall part; (by a finall
part is meant what is comiumfy the cafe, fuch as one or two in a
hundred :) but if, on the other hand, a great part prove bad, the (ale
b invalid, and the purchafer is entitled to a complete reftitution of the
purchafe-money; bccaufe in this cafe the fcUer has united together
entities and non-entities with regard to value; and the cafe is there-
fore the fame as if a perfbn were to fell together freemen and
Jlaues.
^Qifdufer ^^ ^ perfon, having purchafed a flave, ihould fell him to another^
felling what and that other return the flave to him on difcovering him to be de-
chtTed.whidi fcftive, and he agree to receive him back, on the Kd%ee^^ ifiliing a
mme^to* decree to that efFeft, founded on the proof of the defedt by witnefles»
htm in cob- or jon the refufal of the firft purchafer to confirm his denial upon oath,
^cfi. ^^^^ ^hat cafe the firft purchafer is entitled to return the (lave to the
feller; becaufe, although it be not lawful for a purchafer, after the
fale of the article on his jKirt^ to return it to the feller, ftill in this ca(e»
the (econd fale having been annulled by the Kdzee^ it becomes the fame
as if no fuch (ale had ever exifted.
Objection. — As the fird purchafer denied the defeft, and ob-
liged the fecond purchafer to eftabli(h the fa€t by witncfles^ it would
appear that he is not entitled to return the (lave; bccaufe, if he ground
his right on the defed, he is guilty of prevarication, fuice he firft Je^
nlcs the dcfcft, and then afferts it.
Reply. — ^The difproof of the denial by the Ka%ee\ decree,
founded on the proof of the faft by vvitneiTes, renders fuch denial of
no validity in hw ; hence the apparent contiaricty of his denial and
'aflertioQ
Chap. IV. SALE. 417
affertion is reconciled, anfd as the firft falc continues in force, and the
defcft is at the fame time proved, it follows that he is entitled to re-
turn the flave to the fellen— If, therefore, he chufe to return him, it
is a valid rcjeftion: — but if he (hould rather chufe to keep him, the
fale continoes in force. — It is otbervvifc where aA iigent for fait dif-
pofes of an artiClei and the purchafer returns it to the agent in conie-
qucncc of a defcd r— for thii^ is in reality a return to the r^i^/Vi/r/r/;
and the agent is no( rccfuired to return the article to his conflituent,
becaufe, in this ca(e, there is only me fale, whereas in the cafe in
qneftion there are «y^, whence the diflblution of the fccond (ale does
not diflblvc the jfr^.— In fliort, if the feccnd purchafer, on the dif-
covery ofa defed, return the (lave, and the firft purchafer receive
him back, in conlequence of a decree of the K&ue^ he [the firft pur^
chafer] is in that cafe entitled to return him to the original feller. — If,
onnhe other hand, the firft purchafer agree to receive him back with*
out a decree of the Kizee^ he in that cafe is not entitled to return him
to the original feller, becaufe, although the fecond fale be annulled
with regard to himfelf and the fecond purchafer) ftill it is equivalent
to a fale de novo with regard to all otAcr perfbns; and the original feller
is another perfon. — It is recorded, in X\ityamaSagbeer^ that when the
fubjed of the fale is returned to the firft purchafer, without a decree of
the Kdzeej on account of fuch a defeft as very rarefy happens, (fuch
as an additional finger^ for inflance,) the firft purchafer has not the
power of returning it to the original feller; and this (as our author re-
marks) is a dircd proof that the effeft is the fame in both cafes; that
is, whether the dcfc£t be of fuch a nature as may have recently hap«
pened, or fuch ai never recently happens.-«-Iu fbme traditions it is
mentioned, that in the latter cafe the purchafer may return the
iubjeft of fale to the original feller, as there is then a certainty
that fuch defeft did cxift whilft v\ the hands of the original
feUer.
Vol. 1L H h h If
4i8 SALE. BookXVL
Co^^io Ip a perfoii purchafe a flave, and take pofleffion of him^ and then
b^ the ma. afleit a dcfc£t inhim, the Kdsee in fuch cafe muft not enforce the
f^tS% TOf P^yineut of the price on the part of the purchafer until he (hall have
ttkb''^ kivcfUgated his aflertion, either by the declaration of the ieller, upon
^n, al- oatby that the (lave had no defe£k, or by the proof of the (aft on the
f^ m die P^rt of the purchafer by witnefles. The fufpenGon of the Kdue"^
*'^*^* decree with regard to the payment of the price is requifite, left fuch
decree (hould be rendered vain and ufelcfs by the fubfequent proof of
the defcA; and alfo, becaufe the tenor of fuch decree is that the
purchafer Jhall pay the cwnpkte price m fulfilment rfthefpeafic claim tf
the y^/^r^-— whereas the purchafer, by afierting a de£rft^ demes the
obligation on lum to pay the complete price. The Kizee^ therefore^,
muft firft proceed to examine into the circumftance of the defeft ; sad
if the purchafer (hould fay that l>is witnefles are in Syria* ^ he muft
then exaft from the feller his denial upon oath. If the feller (hould
take the oath accordingly, the Kdzee muft then decree the payment
of the price; — ^becaufe in fufpending the price till the arrival of the
witnefles an injury would refult to the feller; and the immediate en-
forcemoit of the payment does not in fo great a degree injure the
purchafer, becaufe after the return of the witnefles from Syria^ ifhe
(hould eftabliih his proof, the purchafe-money will be returned to him
on his returning the flave to the feller.. — ^If, however, the feller (hould
refufc to rake an oath in fupport of his denial, the aflertion of the pur-
chafer is then efhblUhed,. as fuch refufiil is an argument in fiivour of
the exiftence of the defc£t.
£Sf X"* If a perfon, having purchafed a flave, flioiild afterwards a(rert
le|iBg 1^ that «< he hsAnmaWi^ from him, and had alfo run away w6i{/l in the
df/M^ffl *^ poffeffion of the feller ^'^ and the feller ofier to take an oath that ^« he
^{^^^ ^^ had never run away from hini^ [the purchafer,] the KSaue muft in
iKepoichafei that cafe refufe to receive his depofition, until the purchafef fir(k
* That is, at fuch adiftancc as renders their appearance is court impcafiaeaUe.
prove
Chap. IV. SALE, 4>9
prove by witnefles that <^ he had run away from hinC^ [the feller »^
after which the Kd%ee muft tender an oath to the feller to tbii pur*
port». ^« by God, I have fdd the faid flave and delivered him to the •J^i^^^f"*
^* purcfhafer, and he never ran away whiljl be belonged to mi^^ (as is tobert^aiitd
mentioned by Mobammed in. the jr^/M;)— or to tbh purport, ** by "^ *^i^^^
^* God, the purchafer ha$ no right to return to me^uch flave, on ac* >A^ncr.
«< count of the defoSk which he aflerts:" — or in this manner, ^* by
^^ GcD, fuoh flave never ran away whilft he bebnged to me/'-r-He
nuft not, however, tender an oath to him to ibis puiport, '^ by God,
^^ I fold .tbo iaid (lave at a period when he had not the faid defed:'*—
jior va^tbh maniver^ *^by God, I fold the faid flave and delivered him
*^ to the purcfaaier, at z period when he had not the faid defed;**— *
bectfufe, in taking fuch oaths, the meaning of the feller may be, that
although he bad fuch a defeft formerly^ yet he had it not at ibe
idcnticfd period of fale or delhefyi^* and thus, without any deviation
from truth, he may defraud the purchafer of his right. If the pur-
chafer fhould not be able to prove, by witnefles, that the flave had
run away from him [the purchafer,] the oath, in that cafe alfo, (ac-
cording to the two difciples,) mufl be tendered to the feller. — Our
modem doAors have differed concerning the opinion of Haneefa upon
this point; as fome of them fay that, according to him, an oath is
not to be adminiflered to the feller in this inftance. — ^The argument
of the two difciples is, that as the aflertion of the plaintiff is worthy
of regard, and fuch as would be attended to in cafe of its being proved
by witnefTes, it follows that in default of fuch witnefles the feller
mufl be required to deny the aflertion upon oath.— The reafbning
K& Haneefa (as recorded by thofc who have faid that, according to
him, an oath is not to be adminiflered to the feller) is that the form
of fwearing a defendant has been ordained by the i-aw for the purpofe
of removing any litigation that may happen to arifc, — not for the pur-
pofe of exciting litigation. Now, in the prefent cafe, the exaction of
an oath from the feller will only give birth to a new litigation ; be*
caufe^ in cafe he fhould refufe to take it, and the proof of the fad be
H h h a thence
420 SAL E. BookXVL
thence eftabliihed, it will become a new fubjefifc of contention whether
the faid defeft did exifl: or not during his being in the feUb-*8 poifef-^
fio(i, and there will be a neceflity for tendering to him another
o&thy upofk this point) for the purpofe of Fcmovitig this frefli cauic
ofdiipute.
If a perfou purchafe z femak ilave, and having received her
from the leller, fhould) on the diicovery of a dcfe£lr, defire to re-
turn her^ and the feller afiert that ^* he had fold two female flaves to
*^ the purchafer of which he only produced one^^ and thetpurchafer
maintain, on the other hand, that ^*^he had only ibid mt/* — ^in that
cafe the declaration of the purcha£er9 upon oath, is to be credited;
for, as the di&greement here relates to the quantity taken pofleflion:
<^9 the perfoii who took fofftlfan muft be credited, as being the moft
competent judge; — in the iame manner as holds in a cafe of ufurp«»
ation; — ^that is, if the perfon whofe property is ufurped aiiert the
ufurpatkm diz particular quantity^ and the ufurper deny thcquantity^
his declaration upon oath is to be credited ;•— and fb alfo in the cafe ia
queftion. If, on the other hand, the purchafer and feller agree in the
extent of the ^r, but differ with rcfpeft to that of the^/Wjv, (as if
both fliould allow the two female flaves to have been the fubje£fc of the
yjr/r*— the feller aflerting that " the purchafer had received both^^^
and the purchafer, on the other hand, nudntaining that ^* he had only
" received a«,'*)— in that cafe alio the declaration of the purchafer^
upon oath, is to be credited, for the reafoa already explaihed.
Cileorapcr* If a perfon purchafe two flaves by one contract, and take poflcf-
hg ^^m^ fi^ ^^ ^^» *™^ *^^ difcover the jither to be defeftive, he is not in
/tw#, one of tiiat cafe permitted to retain the one he had taken poflcflion of, and
dcfc^^eT^ to relinquifli the other; but he has the option of either retaining or
rclinquifliing both; becaufe until both be taken pofleffion of the
terms of the contrad are not fulfilled; and hence, if he fliould retain
one and relinquifh the othcr^ it would induce a deviation from the
Vargain
Chap. IV. SALE. 4at
bargain previous to its falfilment, which (as was before explained) is
vnlawfiiL If the defeat (hould lie in the flave of which poflcilion had
been taken, in that cafe there is a difagreement among our doctors.
It is recorded, fromjfioo Too/of^ that thcpurchafer is in fuch caie en*
titled to return the dejcdhe (lave only. The more approved doctrine,
however, is that he muft retain both or reliuquifli both ; becaufe the
fulfilment of the bargain refts upon a complete poflcflion of the fub-
jeA of the fale, namely the two JUrces. This cafe, therefore, refem*
bles a caie of detention of the article fold, in fatisfadlion for the price :
that is, if the feller (hould detain the goods in fatisfadion for the
price, fuch detention quinot be abrogated until heaftually receive
complete pofleflion of the price ; and in the fame manner, in the cafe
in queftion, the bargain is not perfe£ted, until the purchafer receive
complete pofleflion of the articles fold. If, however, in the. cafe in
queftion, the purchafer (hould have made feizin of both, and ^Kould
afterwards difcover a defe£t in one of them, he is then entitled to re-
turn the defective one Jingly. Ziffer has given a different opinion ;
becaufe in this cafe a deviation from the bargain takes place ; and it is
not free from injury, fmcc it is an cftablifhed cuftom, in fales, to unite
good and bad things together: the cafe is therefore the fame as if he
had rejefted one before the feizin of the whole, — or, as if he had
made the purchafe under a condition of option, or, with an.option of
infpeftion. Our dolors, on the other hand, allege that in this cafe
the deviation from the bargam ukes place after the fulfilment of the
contract ; becaufe the feizin of the goods renders the contract com-
plete ; and the exiftence of the option of defed does not operate againft
the completion of the contrad after feizin. A devbtion, moreover,
from the bargain, after the fulfilment of it, is lawful, as has been al-
ready demonftrated : whence it is that if, after taking poffeflion of
both (laves, one of them (hould be found to be the property of an-
other, the purchafer is not in that cafe at liberty to return btah to the
feller ; but muft retain one, and receive from the feller a dcduAion of
the price, on account of the one belonging to another, notwithftand-
6 ing
4«« SALE. BookXVI.
ing this be a deviation from the bargain :— contrary to cm£tmal cp^
tions^ or §ptioHs ofinjj^^kn^ for the exigence of fuch conditions is a bar
to the fulfilment of the bargain, notwithftanding feizin may have
taken place.
rfUfe^JT'' If a perfon purchaic articles eftimable by weighty or by meafure oj
tides of * capacity^ (fuch as filver o? wheat, for inftance,) and he afterwards
M^>£^^ difcovcr the article to be in part defeftive, he is entitled, in that cafe,
M^fVjr. the cither to return the whole to the feller, or to retain the whole; but
proTM de. he has not the power of returning the Jefeahe part only, becaufe the
b^t^ffM?io ^^^^^ of articles eftimable by weight or by meafure of capacity are
the iclkr. coniidered as forming one individual, provided they be all of the
famefpecies. Some have alleged that this proceeds on a fuppodtion di
the articles in queftion being contained in one veflel ; but that, if they
be contained in two^ the one containing the defective article may be
returned, and the other retained.
lt%p4art^ If, after the purchafe of articles eftimable by weight, or meafure*
|Kov/ the * "^^"t of capacity, a part of them ftiould prove to be the property of
V^^y ^^f. ai^hcr, the purchafcr is not in that cafe allowed to return the re-
the purchifer mamdcr to the feller ; becaule no injury can reiult to him from his
beitTco re!' being obliged to keep them, as articles of this nature may be feparated
turn the rc; and divided without (uftaining any bleroifti, and the proof of part of
the fubjett of the (ale having been the property of another is no impe-
diment to the completion of the contrail, (ince that depends on the
CQiileiit o(xhc/e//er and purcbafer^ and not of the perfon who is dif-
covered to be the proprietor of a part. Tiiis is where pofteifion has
been taken by the purchafer, before a part of the fubjeA is difcovered
to be the right of another ; — ^for if the right of property of the other
fee difcovered previous to the purchafer tsdcing pofleftion, he is, in that
cafe, entitled to return the remainder, fince a deviation from the con«
tra£t takes place previous to the completion of the bargain. If the
articles be not fuch as are eftimable by weight, or meafurement of
capacity^
Chap.JV. S a L £• 4a3
captcity, but ck/if for inftance, then the purchafer is entitled to re-
turn the remainder to the feller at all events, as divifion and feparation
of the article would, in this inftance, prove an injury to it.
If a peribn purchafe a female flavct and dilcover that flie has an A pvrchaferp
ulcer or fome other fuch ailment, and apply a remedy to it,— or, if a ^\^^^
peribn purchafe an animal, and difcover it to be defective, and ride upon «J>e.^eftft«^
it on fome bufineis of his own, — the application of a remedy in the one mkiiig uleer
cafe, or the a£t of riding in the other, indicate an acquiefcencc in the hiaSSdhiL
defeft on the part of the purchafer, and he is therefore not entitled to P^ ^^^
return dthef the (lave or the animal oo the plea of an option from the the fiMr.
difcoveiy of a defe&. It would be otherwife if he had purchafed the
animal on a comCtian of option ; for the objeft of fuch condition is an
expcnmtn/a/ knowledge^ which cannot be obtained but by a trhi. If^
moreover, he were to ride upon the animal, not on his ow» buiineis,
but merely with an intention of reftoring it to the feller, no inference
could be drawn of his acquieicence in the defeft; — and (b alfo, if he
were to ride upon the animal with an intention of giving it water or
forage \ provided, however, the riding for thefe purpoles be unavoid-
able, either becaufe of the animal being unruly and ungovernable, if
not mounted, or becaufe of the purchafer himfelf being incapable of
walking.
If a perfon purchafe and take pofTeflion of a Have, not knowing ifaimdmffld
that he had formerly, whUft in the poflcffion of the feller, been guilty ^ Jjgj^
of theft, and the theft be afterwards proved, and the (lave fufier am- for a^tfaeft
putation for it in the feller's hands^ the purchafer is, in that cafe, en- ^"^^J^u.
titled, according to Haneefa^ to return him to the feller, and receive ***^ P~^-
back the whole of the price. According to the tW!Q di(ciples, the mnm hw
purchafer is ftill to keep poflcflion of the (lave, and to receive from JSIcIm^^
the (2Uer the diflference between the value whilft in his perfeA (bte, v^-
and that which he bears after his hand is cut offl The fame difa'gree- ud lb aUb, if
loent fubiifoin cafe of a (lave fuffering death whilft in the pofTcflion !L?^a
of
4U SAL E. BooxXVI.
^J^«^ of the porchafert for a crime he had committed whilft in the pofiei^
the UXn. fion of the feller ; Hmeefa being of ofmuon that the purchafer is en-
titled to a reftitution of the whole of the price; and the two diiciples*
that he is entitled only to the difference between the value of
the flave before his blood has become neutral, and that which he
bears after it has been neutral *• In (hort, according to. Ha^
neefa^ the exiflence of a caufe of mutilation or death is equivalent
to a claim cf right j^^ — whereas, according to the two diCiplcs, it is
equivalent to a defeih The reafbning of the two di(ciples is that the
eaufe only of mutilation or death occurred with the feller, but not the
a^ual death or mutilation itfelf ; — now the exiftence of a caufe of
death or mutilation is not repugnant to the fubjeft hcing property i
the llave, therefore, notwithftanding the exiftence of the cauje of mu-
tilation or death, is neverthelefs property, and capable of being the
fubje£t of a fale; as, however, a flave in whom exifts a caufe of
death or mutilation is defeSlive^ it follows that the purchafer is entitled
to receive from the feller a compenfation for the deficiency, where
the return has become impra£ticable; and in either of thefe infhmces
the return // impradicable ; — ^where he fufiers death evidently ; and
alfb where he fuffers mutilation ; becaufe fuch mutilation is a defe£k
that has taken place in the hands of the purchafer;— in the fame
manner as where a perfon purchafes a pregnant female flave, being
ignorant of the circumftance^ and the flave dies la labour, in which cafe
the purchafer i3 entitled only to acompen^ition for the difl^ence be-
tween the price which fhe bore when, not pregnant, and that which
fhe bore when pregnant. The reafoning of Haneefa is, that the
caufe of mutilation and death occurred with thcje/ler; and as a qiufe
induces its cfFeOs, the death or mutilation muft he referred to the
period of the caujc. The cafe is, therefore, the fame as if a perion
• That is, has become forfeiccd to the law, and coirfeqaeiitly liable €0 be Ank
without rcfponCbility.
t In other words, is the lame^ in efiefi, tt if the llafe, after the poxthal^ tbaiAl
prove to be the property of annter ferfin*
CHAr.IV. SALE. 4»5
were to ufurp a flatet and the flave, whilft in his pofleflion, were to
commit a crime inducing mutilatbn or death, and the ufurper then
reftore him to his proper owner ; and the flave then fuffer death or
jQUtilatiOQ ; for in that cafe tlte ufurper would be refponiible for the
wMf.cf the value to the owfier ; in the fame manner as he would
have been in cafe of the flave*s having been put to death whilft in his
<iwn pofleflibn ; as the cauie, in either inftance, occurred with him.
With refpeft to the cafe of pregnancy, adduced by the two dilciples,
it is not admitted byHM^efk. If, however, it were admitted, flill
there is no analogy between it and the cafe in queftlon,- fince
pregnancy Ia the caufe of delivery^ and not of deaths except in a icvr
iafiaaoes.
If a (lave firft conmiit theft with the feller, and then, after be- Cafeoraflive
mg feld, OMnmit theft with the purdiafer, and afterwards fufier am- ^^"f f^'
putatioa for both thefts, in that cafe, according tothe two difeiples^ ^^ ^^"^
the purdiafer is entitled to the difierence of relative value of die flave cd unch the
at the tiine of fele, and after the oommiiiion of the fecond theft. ^*i!^^
Accoiding to Hanufa^ on the other hand, the purchafer is not en- ^f^^hfir*
titled to return him, unlefs the feller ihould of his own accord con-
fent to recdve him t but he is entitled to a compeniation for the fourth
of his valut; and if the feller ihould himfelf agree to receive him, in
that cafe hemuft reftore to the purdiafer three fourths of his price ;
becaufe the haml of a inan is efteemed equal to half his perfen ; and
as, in thb cafe, the hand is forfoted i^r the comxniffion of two
theics^ it fellAws that a dedu&ioik of One quarter oug^t to be made
0a account of the theft comtmtted whilft in the pofleflion of the
fitrcbafir.
Iv alhv^ having been fevenUy feld, and delivered to three differ- db of a
ent perfens, flionld then fufler amputation for a theft which he had {^STgiW
committed whilft in the pofleffioo of the firft feller, and of which the MdfyWmng
ciftereat purdufera were not apprized at the period of cooduding for a theft
Vot..II. lii their
4»« SALE. BooKlCVt
^"£t^ *^^ rcfpcftivc contraas,— in that cafe, aocordiag to Hnnfa^ the
Mr. laft purchafer has a right to return him for a full retribution of the
price to the peribn from whom ho bought him ; and he agaia is en«»
titled to return him, on the fame condition, to the perfon ftom whom
he bpu^t him ; and in this manner the return may be made tEroog*i
the different gradations of purchafers to thdr immediate ieUers, until
at length the (lave he returned to the fdler in whofe haAds he com-
nutted the theft ; — in the fame manner as in a c&fsictBim^f right ;
for the exiftence of a caufe of amputation is (aooordiojg to Htmufa)
equivalent to a claim ofrigbu ^ was before explained^ Accocdm^
to the two difciples, on the other hand^ the laft purchafer is entitled
to a compenfation from the immediate feller ; but te again is not en*
titled to any compenfation from bis immediate ieller ; in the £une
manner as in a cafe of JkfeS\ for the exiftence of z. caufe of ampu-
tation is (according to tbem) equivalent to a JefeSl^ as was before
explained *• — (It is to be obierved that the mention of the purchafer
being ignorant of the theft committed by the flave, is infifted on in the
twopieceding examples, on account of the particular tenets of the two
difciples ; for as, in their opinion, the exiftence of a caufe of mutib*
tion is equivalent .to a JdfeR^ it follows that if the purchafer had
previous knowledge of the exiftcnce of fuch caufe, he would appear to
have acquiefced in the defeft, and oonfequently have relmquifhed
any right to a compenfation. As Haneefa^ on the contrary, holds the
esdftence of a caufe of mutilation Co be equivalent to a clum rf right i
and as the knowledge or ignorance of this drcwnfbnce makes no
difierence with refped to the purchafer, it fbUows that fuck fpedfi-
cation, with regard to Ins tenets, is perfe&ly inmiateriaL)
wiMie Ac If a perfon fhodd feU a (lave, ftipukting sin exemption to him--
j;;^^ felfofaUrefponfibiUtyforhisdefefts,asifhefhouldfay,<'Ihaveibld
Mttij«^ «• this flave with all his dcfefts/*— in that cafe, if the purchafer ac-
• S€cp«aa4.
quiefce
Cha>.IV, sale. 4«7
quiefcc m fuch conditioa« and exempt him from any refponfibiltty, ^^ ^^
he is not afterwards permitted to return him to the feller on account wudi mum
of any defeA, notwithftanding the condition of the feller may have wkatmr Jm
been genera/^ that b, without fpecifying the particular names of the ^[^^^^ ^
defeAs from the refponfibility of which he exempted himfelf. — SAqfci
is of opinion that fuch exemption is not valid, unlefs the uzmc of
every defeft to which it refers he ipecified ;— for it is a rule, with him,
that exemption from undefined claims is invalid ; becauie exemption
has (bme oif the properties of invejtiture^ (whence it is tibat it may he
rejected,) and inveftiture of an undefined nature is invalid. The ar-
gument of our doAors is that the grant of fuch exemption is in fid
avduntaiy fiirrender of one*s own ii^t, the uncertainty with re-
fpeft to which can be no caufe of contention, iince delivery is not
requifite. It is to be obferved that Jjbao Toofrfis of opinion that the
exemption, in this cafe, includes all defeds adually exifHng at the
time of fale, and alfo all which may happen in the interval between
that and their delivery. Mohammed and Ziffer^ on the contrary, are
of opinion that the defeA which may happen in the interval ought
not to be included. The argument c£jf6oo Toofifh that the pro-
baUe objeft of fuch furrender on the part of the purchafer is to ren-
der the fale biuMng and eonclufive^ which would not be the cafe
unlefs the defeds that may happen in the interval betwcea the iale
and the feizia werb alfo included*
III a CHAP.
42B S A L & Book XVI.
CHAP^ V.
Of Invalid, Null^ and * Abominable Salet.
A SALE is INVALID wbcTC it it Ixwfutwith refpeB tfiu essshck^
but not with refpedl of its oyALiTY ; and null, wbert the ftdj^B is
not of an affreciaile nature i mul tit tf run IWALIV and VVLh^ are
often inSfcriminately itfedc—Ae ABOHINABLB fak is Juch as is lawful
both in its esskncb a«^QjrAUTr» but attended with fmae circwnfiance
g^ABOMIKATION»
DiAiBaiont A SALS vtk exchange for eurrum^ bloody ot the perfixi of z freeman^
ad/ and an ^ nuU^ bocaufe iionc of ^bcXe cafes bears the chanifteriftic ofy^r^
*"^' ^- (namely^ an excl^nge of property for ^operty^ fincc thcfe articles do
not conftitute property with any perloA. A fiie in exchange fin: wine
or fork (on the other hand,) is merely invalid i bocaufe the charac*
teri^lc c^ £de does exift in thefe inftances^ as the£e attides are con-
fidered as property with ibme deicriptions of people, inch as CAq/Hans
and Jews; but they do not conftitnte prqmty with Muffulmam^ and
a contra^ comprehending thefe articles is therefore invalid*.
^eofMeny Jk a fale that is null^ the purchafer is not empowered to perform
S^a null any aft with refpeft to the fuljea of the iak, but it remains as a
* The word in the original is i£nb«rf^ iriiidi die tranlalor (fbOomng its 1^^
common acccptttion) hu rendered alMRiMMr. The temvhovcvery b this wock, k not to
be underftood in the ill fenfe in which it is geoeraHj cmpfejed in the Englilb hnguage;
the cafes to which it rehtes being fiieb u are in cvcrj icTpeft legaly but whidi being it*
tended with circumftances of imprDprieCj^ an aUUnence from them b recommended.
truft
>
Cha?. V* SALE. 4^9
truft in hishandsy according to fomc of our modern dodors; becaufe, **^^^^^
as the contra^ of fide, in (uch an infbnce, is totally difregarded, there ourchafer't
remains only the feizia of the purcbafcr with the confent of thtfeUer: *
and accordingly, if the article were to perifli in the purchafer's hands,
in this inftancct he is not refponHble for it. Others are of opinion
that the fubjedt of the fale, in this cafe, is not a depofitj but that the
purchafer is not refponfible for it ; — (in other words, if it periih in
the purchafer's hands, he is anfwerable;) — ^becaufe the article is as
inudi in his polleflion, in this inftance, as an article detained in a
peribn^s hands with an intention of purchafe, and for which he is re«
iponfiUe. Some allege that Haneefa\s of tSxtfift ojnnion, and the
two difcipitt of xhtfecond. The reafons for this difierence of doc-
trine will be explained in treating of the deceafe of an Jim IValid or
Modaiblr^ in the hands of a purchafer.
Ik a cafe of invalid fide, the purcha(er becomes proprietor of the hot dut por-
article upon taking poiTcflion of it; and is refponfible for it [if it be ^^ysHs/
loft in hb ^ands.] SAi^ci is of a different opinion, as will be here- f^^JJ^f^ST*
after ez[dained.
The lale of carrion, blood, or the perfbn of a freeman, is null,
in the fame manner as a iale in return for thole articles is null ;
becaufe, as thofe articles do. not conftitute property, they are un-
faleaUe.
. A SALB of wine or pork, if in return for money^, is nul/i and if in f:^^^
return for any other article, {z% clotb^ for inftance,) it is invalid^ i((arm$m^!^
— *wbence it is that the feller of pork or wine, for cIotA^ becomes the SI of *n^ rf
proprietor of fuch cloth, althou^ the aOual pork or wbe do not be- jg^* i* '**
come the property of the purchafer. The diftin£tion in thefe cafes
is, that wine and pork are held by Zimmces to be property, whereas
Mt^ulmmu confider them as articles from which no ufe can be de-
rived, becaufe the law has commanded the contempt of them, and
6 prohibited
430 SALE. BookXVL
prohibited all regard to them among Muffulnums. Now, a MuJfuU
man's purchafing either of theie for fpecie implies a regard to them,
becaufe it is not snofuy (which coniHtutes the price) that is the ob-
jeA of the fale, as // is merely the inftrument of acquhrm^ the otje£t ;
fot in fad it is only the wne or fork that is the objed; and asthele
articles ace not appreciable with re(pe& to Mujfulmans^ it follows that
the iale of them is $udL It is otherwife if a Mujfuinum purchafe cloth
for pork or wine, becaufe that can admit of no other conftrudion
than that he regards the ckib as the objeA of the tranfaftiocv, confi-
dering tho pork or the wine only as the means of attaining fuch ob*
je£k, and not (as m the other cafe) as the objeA itfelf. The fpecifi-
cation of the pork ^)r wine, therefore, is regarded merely that the
purchafer may become the proprietor of the clotb^ and not in order
that the feller may become proprietor of the \^ine or pork ; and hence
the mention of thofe articles is invalid, and the payment of the /rib
^ibe clotb^ and not the delivery of xhtfefl> or liquor^ is incumbent
cH the purchafer; — (and (o alfo, where a perfon fells wine or pork
for cbdi;) for, as doth is a ialeable article, the cltab muft, in this
inftance, be confidered as the fubjeft of the fale ; for tvhicb feaibo
this is an invalid and not a null (ale ; becaufe where, b a eontraft of
fale, the fubjeA on both fides confifls of fomething elfe than, money^
either may with equal propriety be confidered as the fubjeft of the
file. (Tim fpecies of fale is termed a Beeya Mcoidyexa^ or barter.)
ThtfikoTA Thb fale of ,txi jtm-ff^alid^ a Modabbir^ or Mokdtib^ is null; —
£S%iS becaufe an Jm-JFaSJlm a claim to freedom^ as the prophet.has faid,
iMMia'u ^^ Her cbild batb/et berfra,'^'' (that is, her child is a r«^ of free-
dom to her ;)— and the caufe of freedom, with refpeffc to a MutMir^
is not efbblifhbl vfcn tbe decea/e of bis awner^ but muf^ be confidered
as aQually extant in him at frefent^ as the owner is incapaUe of
emancipating him rfter bis dtceafei^^nAzMoJtdtibf on the other
^ SeeVoLLf«479*
hand.
aUIi
OiAF. V. sale; 431
hand* is poflefled of his own perfbn as a 'right eftaUiflied in himt
and binding upon his owner, infbmucfa that the owner cannot of
himfcif break or infringe upon it:— if, therefore, the fale of any of
thefe were valid, that which is eftabliflied in them would be rendered
null;— hence the fale of them is null.— Refpefling a cafe where a
Mokdtlb himielf acquiefces in being fold, there are two opinions re*
corded. According to the Zabtr Rawfyet^ the fale in fuch cafe is
valid. It is to be obferved that by a ModaiUr is here meant fuch as
is abfiluiely fo, and not one whofe cpndition of freedom is reflriAed
to the non-recovery of his mafter from .the illnefp under which he
laboured at the time of granting the tadbeer^.
If, after the fale of an jim-WaGd or Modabbir^ and the feizin of and the pur-
the purchafer, oae or other fhould die, in this cafe, according to Ha^ ^^fiblTif
neefa^ the purchafer is not refponfiblef . According to the two dif* ftj^^JSi*
dples he is refponfible for the value :— ^(and there is one tradition
which reports that Hantcfa comcides with them on this point.)-*
Thereafoningof the two difciples is, that as the purchafer took pof*
iefltOQof the A^M^n^^/r or AnhWolidxn virtue oi^fak^ he is therefore
refponfibba for the bfs; in the fame manner as for the lofs of any
other property after purchafe and feizin ; — ^for this reafbn, that an
Am^JVdid or Modabbir may be included ^ in a contract of fale;
whence it is that any article united with thexQ in a contraft of fale
becomes the aftual property of the purchafer. It is otherwife with
refpeft to a Mokdiib^ as the purchafer is not relponfible for the lofs of
him, becaufe, being pofTeflfed of his own perfon, the purchafer's feizin
of him is not fully eflablifhed; and the reiponfibility attaches in vir«
tue of the feizin. The argument oiHaneefa is, that ailualfatc can-
not operate with refpeA to what is not in reality a fit fubje£t of it ;
• Ses Vd. I. ^ 477.
f Tim is, the left if coafidmd as fidliiig iipoa die)^
X Thatis, ^ m^ k jduiwUh tAn ^rtidiu^
and
43^ SALE. Book XVI.
and as a MddaUir or AnhWialidzxt not ia realitj fit iulje&s of (ale,
they are therefore confidcred in the £tme light with a MokdiiL In
reply to what the two difciples urge it may be obferved^ that an j9m-0
fValid oc Modabbir are nia included in a fale for the fake of their per-
fons^ but only in order that the eSeft of fide may be efbibliihed with
refpeft to fuch articles as may have been united with them in the
contraft; in the fame manner as where property of Utit purcbafer
happens to be involved in the contrail ;^— in other words, if a perfbn
purchafe two (laves by one contraft, and one of thofe (laves happen
to be his property, fudh (lave is neverthele(8 included in the con-
traft» — not indeed for the fake oibisperfm^ but merely in order that
the effeft of the (ale may extend to the other (lave, who is united
with him in iL
Hie fide u Thk (ale of fi(h which is not yet caught is null, as it b not in
SSiS'^ that (hite property.— In the fame mamier alfo, the fale of a fi(h
which the vender may have caught, and afterwards' tErown into a
large fountain from which it cannot be taken without difficulty, is
hull, becau(e there the ddiveiy is impraOicaUe. (It b lawful, how-
ever, in ca(e the fountain be (b fmall as to admit its bong cau^t
with eafe.)— If fifh ihould of them(elve$ come into a fountua with-
out the proprietor's having taken any means, by the eredion of a
dam, or the like, to prevent thdr egre(s, they ate not con(idered 41s
property, and the (ale of them is therefore nuU.
^oTabiid Thb £deof a bird in the air, or of one which after having been
« tkc •». caught b again fet at liberty, b nuU ; becaufe in the one cafe it b not
property, and in the other the delivery bnndered imprafticable.
oroTt fflBcst The fide ofz foetus in the womb, or of the offspring o£ ihatfatus^
btKewMh* is null; becaufe the prophet has prohibited it; and aUb, becaufe
^Ia^,) ' there b a probability of fraud, from there bebg a want of .certainty
in the cafe.
The
Chaf.V. sale 4J3
The (ale of milk in the udder is null ; bccaufc there is a pofTibi- gj^jff^ *•
lity of fraud, in the udder's being perhaps void of milk, and full of
wind; or, becaufe there might arife a contention with refpeft to the
mode of eztni£ting the milk ; or becaufe it might happen that the
udder contained more milk at the time of extrading it than at the
time of iale; and hence there might be implicated in the fale fome*
thing not properly the fubjeft of it.
The (ale of wool or hair growing upon an animal is null; be* or of tub (or
wooi)ttpOHm
cauie, whilft joined to the animal, it is confidered as a couftituent
part of it ; and al(b, becaufe it cannot be cxzQly cut away from the
aaimal» without either leaving a part of it or taking away part of the
(kin, (ince it is not pra&icable to puil it out. It is, moreover, re-
corded in the Nakl Sabeeb^ that *' the prophet prohibited the fale of
** wool upon the animal, of milk in the udder, and of butter in the
«* milk V It is recorded oi jiboo Teofaf^ that he admitted the le-
gality of the fale of growing wool : but to this the above tradition is
an anfwec
It is not lawful f to (ell a piece of wood fuftaining a weight, TlMfibb
fuch as zpillar or a bcan^ although the piece of wood be fpecified and !i!?!|^dde
determinate. Neither is it lawful to fell a yard from a piece of cloth "^f^ «^
which is (ewed, whether the parties fpecify that the yard (hall be cut fimDjc^fitvu
oS'firom it or not ; becaufe in this dMc a delivery without injury is £lij**^
impraaicable. It is otWwife where a perfon agrees to fell ten drams
((or in(buice,) from an mgot of filver, for thefe may be cut off (torn
the ingot without injury to iL It is to be ob(ervcd, however, that
if the feller, before the diflblution of tlie contrad, (hould cut off the
• That is, befim it hat been cxtnaed hjikmrmni.
t B7tiieplirafe<«frfiii#fte^«risheic(airimdiefblloi^
4cr«ood,«icuf«M/ri."
Vol. II. K k k yard
43+ SAL £• BookXVT^
Set<^i^ yard of doth^^or pull away and fcparatc the piece of wood, the fale in
ejDftcBcecan. that cafc becomes complete^ fiuce the cauie of its invalidity is re*
^^ **^ moved. It is otherwife with rcfpeft tO the (ale of the ieneis rfdates^
becaufe that continues null, although the fiones be afterwacds opened
and the kernels taken out; (ince (contrary to the caieof thejrar^^
clotb^OT t\it piece tfwood) the exifleace of them was arighuUfy un-^
certain.
It is not lawful for a game-catcher to fell ^* what be may caicb
^^ at one pull of bis net ;'* becaufe the fubjeft of the fale is uncertain ;
and alio becauie the purcha(er may be deceived, as it is poliible that
none may be caught.
tiiyor »Udi ^^ *^ *^^' lawful to fell dates growing upon a tree in exchange for
OA only be dates which have been plucked, and which are computed, from con-
coB^ttft/^ jedure, to be equal in point of meafurement to thole that are upon
the tree. This fpecies of fale is tei'med MnJOnat^; and has been
prohibited by the prophet, as well as the fale termed Mobdiila^ which
is the iale of wheat in the ear, m exchange for a like quantity of
wheat by conjecture.. The law is theiame with refpe£fc to the fale
of grapes on the vine in exchange for raifins. Sbafei holds thefe (ales
to be lawful, provided they be not extended to a quantity exceeding
five^Pi^f ; becauie, althou h the prophet has prohibited a fale by
Mozdbinat^ yet he has permitted what is termol Orfya\ which he
exphuns tq be, a fale of dates upon a tree, provided the quantity be
left than five Wuflks^ m exchange for a quantity which have been
plucked, and which are fimilar, in point of meafurement, according
to computation. Our doctors, on the other hand, exphtin Oriya in its
• Properly, t (kk mtb9ut wri^ er mafure.
t XKas/f literally meuit a camel^f burthen, which if cooipiited to be CixtfJUi. (See
VoLI. p. 44*)
( literal
43S
Chap.V- sale,
literal fcnfe to mean a gift ; and the nature of it is this. A perfbn
makes a ^ft of the dates of his orchard to another, who thereupon
comes and enters the orchard. This gives difguft to the proprietor,
as his fiunUjr reiide in the orchard ; but being, at the fame time, un*
willing to violate his agreement, he prohibits the other from entering
into the orchard, and gives him a quantity of dates which have been
pulled in exchange for thoie which were growing in the orchard.
This is the proper interpretation of the traditional faying of the pro-
phet, quoted by SAi^ei ; and this mode of Tale, which is termed Moth
jdr^ is valid in the opinion of our doctors. It is not, however, in
reality z/aU^ becaufe the right of property had not vefled in the
douee, on account of his not having made feiziu of the dates, and
therefore the dty dates which were afterwards given to him is con-
lidered as a new gift.
It is not lawful to fell goods by the way oi MMndfa^ Mon&uUe^ orwlm iIm
or Ma HiJgiri'-thzt b, the iPUcA of the goods, the throwing of the )!m^t^
goods; or the cafting rf a J^aney—vs where, for infbnce, a perfon JiCJ^S?'
havmg exhibited his goods to another, and fpedfied the price, the s!^^« <bc.
parties agree between themfelves that ^ the. contrafi fhall be binding,
either on the pi)Fcha(er*s touching the goods, or the feller^s throwing
them towards him, or the purchafer's cafting afimc at them. Thefe
modes of fale were common in the days of ignocance : but were inhi-
bited by the prophet.
It is not lawful to fell grafs growing on a common, becaufe it is Tte ikie !•
not the property of the feller; for it is declared in the traditions that JJ2J^.
•* in grafs all men are alike fharcrs;** — (that is, it is emmm to all.)
Neither is it lawful to let it out on leafe ; becaufe, als if is not pa*-
mitted to fiirm any thing, where the ol^eft is the defbu£tion of it,
even though it be the property of the leflTor, it is confequently in a
fuperior degree unlawf\]i to let in leafe an article of which the property
Kkka is
43^ SAL E. Book XVI.
is common to all, where the object of the ieflee is the dcftnidioii
ofit*
ZJL b? ^^^ ^^ ^^ '^^^ ** ^^^ lawful according to the two Eldtri. Mo^
itw, or with bammed xz of opinion that it is bwful, provided the bees be in a phce
*«««fc#) Qf cuftodyf , and not wild J; and fuch is alfo the opinion diSbafeli
becaufe a bee is an animal 3rielding good; and as we are permitted
by the law to enjoy the good which that creature yieldsi it folbws
that thtfak of the animal is permitted. The reafbnihg of the two
Elders is that, the animal being of an oScnfive nature, the (ale of it is
therefore unlawful, in the fame manner as in the cafe oSwaJ^. Bc«
fides, the good is derived from its produce^ not fix>m ixsjuifiance^
whence no advantage can be derived from it until the honey be
produced. If, however, the comb be fold, with the honey in it, and
the bees, the Tale of the bees is in this cafe lawful, as a defendants
Kairokbee is alfo of this opinion.
«r«r ilk.
It is not lawful to (tWJilk-worms^ according to Haneefa^ as thcj
are animals of an ofienfive nature. Moo Too/of thinks that if the
filbhave appeared they may then lawfully be ibid, as a dependant.
Mobonmedis of ofwion that the fale of them is lawful in any cafe^
* The bbjcA of t leafc is rfufraO^ or (in the language of the MvffJbmn bwyert) m
iifinia\wafth€fr9dMa rftbt tbing^km mtrftbithing itfelf: thuf if a pedbci flioiiU take a
kafe of a piece of ground, or a fruit tree, he would be entitled lo appropriate to hiaifelf the
produce of the ground, whether grun or gra6, or the fruit that might grow upon the tree;
bttthewouMhave no right to ufe the ground or the tree (the immedial; fiibjeasof the
leafe) (b as to occafioo any deftruaion of their fubOance. Hence prooeeds the ill^galitj
ofaleafeofa field of graft, of gcain, of the fruit of a tree or the. like; fcrthekife in uq
difisA calcs, would be entirely ufelefs,fince the Ieflee, being entitled only to the ufe of the
fndMceitfht fubjeA of the leafq would not be entitled to the ufe of any of tfacfe which aie
themfeives the immediate fubjcft of die fcafe,
t Such as a Am, or lf#-i(f«^ t Literally, «< Ml nillf mt.^
as
Chap.V. sale. 437
as being an animal whence an advantage is derived. Hanetfa is of
opinion alfo, that the file of their eggs is unlawild. The two dtf*
ciplesy on the contraxy, are of opinion that fuch fale is lawful of
oeceflity.
THs(aleof//jf^Mx, of which the number is afcertauned, and the ^*|*^
delivery praOicable, is lawful, as in fuch circumfhmces they cbnftitute b film,
property*
It is not lawful to fell an abfconded flave, becaulc the prophet ]^^|2^J^
has prohibited this; and alio, becaufe the delivery is impra£Ucable. flaTcbin-
If, however, the purchafer ihould declare that " the fugitive is in hebc'mthe*
*« his poffeflion," the fale is lawful, becaufe the obftaclc on which J^^^^J^
the prohilntion is founded is in this cafe removed. — ^It is to be obferved
that if the purchafer, in this indance, ihould have declared, before
witnefles, that *^ he had taken poflef&on of this (lave with intent to
" reftore him to his owner," he is not held, on the conclufion of the
cootraO^ to become feized of him in virtue thereof; becaufe the
former fdzin, being in the nature pf a truft^ cannot ftand in the room
of that made On account of purcbafe. If, on the other, hand, he
ihould have made no fuch declaration^ in. that cafe he is held to be
ieized of the flave, in virtue of the iale, immediately on the conclu-
fion of the contraft; becaufe the fomierfeizin, being in the nature of
an ufurpattm^ may therefore ftand in tbe room of a feizin for fale ; for
both are the fame in efic^,. as they both equally induce reiponfibi-
lity* If the flave ihould have eloped to fome other perfco, and the
purchafer fay to the proprietor ^* fell Vne your flave who has con
^ away tafuch an one,** and the feller accordingly agree, the fale is
in that cafe aUb unlawful, becaufe of the impijidicability of the
ddarery*
Ip a perfon, having fold a fugitive flave, fhould after the fale re- aiciio«rh Ac
cover him, and deliver him to the purchafer, the fale is neverthelefs ^^J^^
unlawful^
438 SAL £. BooxXVL
dc&fcrUm unlawful^ becaui^it was originalljr null, in the fame manner as if it
chaftr«'^* had related to zbird- in the air. It is recorded, as an opinion dlHa^
neefa^ that the fale in this cafe is valid, provided it was not undone
previous to the delivery, becaufe it Wa3 founded on property, and there
was no bar to its ef&ft except the imprafticaixlity of the delivery,
which is removed by the recovery of the ilave; (and fuch is alio re-
lated as the opinion oiM^animed\j^)Xi the iame manner as if a Have,
after having been fold, ihould run awayprevious to the feizin of the
purchafer, in which cafe, if the feller flioulU afterwards recover him,
and deliver him to the purchafer, the fale is binding, provided it was
not diilblved in the intervaL
T^^ is' The £de of a woman^s milk is unlawful, although it be xmvejfel.^
woBum't Sbi^ti is of opinion that if it be in a vefTcl the fale of it is lawful,
'^^ beciufe it is a pure' beverage. The argument of our dodors is that,
as being part of a human creature, it ought to be rcfpcded; and the
expofure of it to fale is an aft of difrefpefi. In the Zahlr-Rawfyet
there is a diftinftion between the milk oiz fanaJeJlwe and zfree wor
num. It is related, as an opinion of Aboo Toofaf^ that the fide of the
milk ofz/emakpave is lawful, becaufe the fale of the Jlave btrfeff^is
lawfuL The anfwer to this is that the fale of the Ifemale is legal,
becaufe of the bondage, which is a quality of her perfon; but fuch
quality does not relate to the milA ; the one being aihe^ and the other
dead.
m tlie Males Trb file of the brifUes of a hog is unlawful, becaufe the animal is
^ ^* eflentially filth, and becaufe the expofure of this article to file is a de*
gree dtreJfeSf which is reprobated and forbidden. It b lawful, how*
ever, to apply it to ufe, fuch as (Htchbg leather, for inffamce, in the
romn of a needle, as this is warranted by neceflity.
Objection. — ^It would appear that ihtfale of it is warranted from
xieceflity, in the fame manner as the ufe of it
Rbplt.
Chap.V. sale. 439
Rbplt.— There is no neceflity for theiale of it, (ince any quantity
of it may be had gratuiteujly and vntbout furcbt^e. — It is to be ob-
lerved that hogs* bridles failing into a little water * renders it impure,
according to Aim Too/of.— Mobamnied b of a dtflercnt opinion, be-
oaule the legality of the ufepf the. article in queftion,. is (according
to him) an argument of its purity. Moo Toofrf^ on the other handi,
argues that &e legality of the ufe of it is founded on ncceffity^ and not
on its furtty ; and there exifis no neceflity in the cafe of its falling into
water.
orbamaa
ludr«
The fale of human hair is unlawful, in the £ime manner as is the
ir^ of it ; becaufe, being a part of the human body, it is neceflary to
preierve it from the difgrace to which an expofure of it to iale necef«
iiirily futjeSs it. It is moreover recorded, in the Hadecs^Sbareef^
that ^^ God denounced a curfe upon a fVSfila and a MooftwSfik.^* —
(The frfi of thefe is a woman whofe em|^yment it is to unite the
ihoni hair of one woman to the head of another, to make her hair
zffcu long; and the fecond means the woman to whofe head fuch
hair is united.) Befides, as it has been allowed to women to increafe
their locks by means of the wool of a camel, it may thence be inferred
that the ufe of human hair is unlawfuL
Thb ialeof the hides of animals is not lawful until they be drefled, wmixtSki
becaufe the ufe of them, until then, is prohibited in the traditions of ^^^^
the prophet. It is lawful, however, to fell dreffid hides.
It is permitted either to fell or apply to ufe the bones, fioews, batammil
wool^ horns, or hair, of all animals which are dead, excepting thofe ^^^f ^
^nuntnAbogs. The reafbn of this is that thefe articles ace ^^, and tioM(cic^
aie not ooofidered as corrMr: befides, dcatbdoeinot aficdt them as it "^j^^y
• Bya ftifnwter {kf Ac cxHnmentitois) is here meut fiidia qiiaatiqrssmt|rbe
'lASoyvodierTdU.
does
440 S A L E« BoocXVr.
ninrbceitlier docs the ammaU as thcTe articles are not poflefled of life. — It is to be
verted to life, obferved that Mohammed^ coafideriag an elephant as effenttal Jikb^ like
a hog, holds the iale of it to be unlawful : — ^but the two difciples, con-
fidering it in the nature of a w/A/animalt regard the £de of it, or of the
bones of ity as la wfuL
^^^Sa ^^ *^^^ houfe, of which the upper and under apartments belong to
ttnicTsitin- dtflfcrcnt pedons, the whole, or the upper fiary only, ihould fsill
vdve/r^^frff down, in that cafe the proprietor of the upper ftory is not per-
mitted to fell his right, (namely, the right of building another upper
(lory,) becauiethis, as behig. only a r/]g;6/, vi u^ property.
OBjBCTioN.-*-It would hence appear that the (ale of a right to
water *• (that is, of a (hare in water ufed in tillage) & not lawful, as
it is not the {eller*s property^ but merely his right ; whereas fuch a iale is
allowed^ if made along with the lani^ according to all authorities;
and acoording to one tradition (which has been adopted by the Sbeikbx
q{ Balkti) the fale of the r^t to water by itfelfi% lawful.
Reply. — ^The (ale of a right to water is valid, becaufe the term
Shirb means a Jhare in water ; and that is an esdftent article, and in
the nature of property ;-*-whence it is that if a peribn, in a cafe where
it is enjoyed by rotation, (hould deftroy it during the term of bis right,
he is refponfible for the value of it; — and alfo, that, when it is ibid
along with the ground, a part of the price is oppoied. to the right to
water.
Any tbin^ If a pcrlon beftow or fell a road f it is lawful : but neither the fale
11^ admitt ^^^ ^^ g^ ^^ a water<tmrfe is valid. Thefe cafes admit of two fup-
9i%t^fi portions. — I. The £ile may be of the abjolute right to the road or
• Arab. ^H.— Thb term properij figmfiei irmio^mUt dug for the purpofe (pf wa-
tering lands and the right to the ufe of wfaicb is transfcnUe, in the fiune manner as any
other property.
t Bjr a TMuf is here meant a hne or narrow paflage leading into a ftreet or high-road.
water-courie.
Chap- V- S A L £• 44^
water<ourfe9 without defining the length or breadth of either.— IL It stfitnmMmai:
may be of the right of pafling upon the road, or receiving the benefit wife,
of the water |. — ^Upon the Jlrjl {uppofition, the difference between the
two cafes is that the road is certain and afcertained, becaufe the
known breadth of it is equal to that of a door^wiy: — ^buC in the cafe of
a water-courie there b an uncertainty, becaufe it is not known how
much ground the water covers.— Upon the Jeamd fuppofition, there
are two traditions with reipedl to a iale of a right of paflage on the
road:— according to one tradition the £de is lawful; and according to
another it is invalid.— The difference between the fale of a right of
poflage on the road, and a right of benefit from the water, (as inferred
from the firft tradition,) is that a right offaffi^e is a point which ad<«
xnits of being predfely afcertamed, as it is conne&ed with a known
oMytSCf namely, the road ; whereas the right of benefit from tbe water
is of a nature which cannot admit of being precifely afccrtained,— and
this, whether the water be conveyed in a trough fupported upon a
wooden frame, or in a trench cut in the ground.
If a peribn fell a (lave as zfemakf who afterwards proves to be a Adccepiioa
ntaU^ in that cafe the fale is utterly nulL — ^It is otherwife where a ^^"5*?^
perfon fells ^goat (for infbnce) as a male^ and it afterwards proves to TiUdaiciUie
be z female ; for in that cafe the contraA of fale is complete: the pur* b«t wJliI
chafer, however, has the option of kee{Mng the aiumal, or reje^ing ^''^^
it. The difference between thefe two cafes is founded on this general
rule, — that wherever denomination ipA feinted reference are united, by
the feller pcunting to the fulled of the fale, and mentioning its nmm^
(as if a perfon fhould fay ^^ I have fold this^oo/, for infbnce,) — ^ia
this cafe, if the article referred to prove eflentially different from what
was mentbncd, the fale is fuppofed to relate to the artkk named \
and therefore if the article referred to prove of a different J^cies from
what was named, the fale is null. — ^If, on the other hand, the article
* LttcnDj, unj/bi iiiwour t§ nm, (byopenbg a fluke, «fo forth.)
VoL.Ii: Lll referred
442 SAL E. Book XVI.
referred to prove of xhtfoniefpecies with the article named, but of a
difitretit quality, ia this cafe the iale relates to the article referred to ;.
tod where the article referred to is found, the ialc is complete: the
purchafer, however, has in this inftance an option, bccaule of the
(jualiiy noentioned not exifting in the article; — as where, for inftance,
a peribn fells a flave as a baker ^ and he proves to be a fcriSe.-^Now it
is to be obferved that a male and a female flave are not of tbefame^ but
of tvDQ £fferent fexes, which is accounted, in this inftance, as eqniva*
lent to being of different fpecies, becaufe of their different uies;
whereas in goats the object for purchafe (namely, to eat their flejhj)
is the fame, with refpe£l both to the male and tht female^ and there-
fore they are not held to be of two different (pecies.— It is proper to
remark, ' in this pbce, that, amongft lawyers, the unity or dif-
ference of the objeffj and not the unity or difference of the ejence^
determines the unity or difference of lYit fpecies. Thus vinegar of the
grape is held to be of a different fpecies from the fweet juice of the
grape.
A fe-lalc to If a perfon purchafe a female flave for a thoufand dinns^ flipulating
^^^Sil^£ cither a future or immediate payment, and having taken poflcflion of
tbe ori^i hcxj (hould fell her to the perfon ficm whom he had purchafed her,
payoiencof^ for five hundred dirms^ previous to his having made payment of the
i^a£!^' ^ thoufand dirms^ this fecond iale i3 invalid. Sbife'i is of opinion that
as the right of property in the flave had vefled in the purchafer, be-
caufe of his having taken pofteflion of her, fuch fale, on the part of
the purchafer To the feller, is valid, in the fame manner as it would
have been valid to any other perfon,-^r as it would have been valid
to the ^ler in cafe the fecond price had been equal to or greater than
the firft,— or in cafe it had been in exchange for other goods, although
thefe fWnjld have been of a Icfs vsdue. — The arguments of our dodors
ve, — First, a tradition that Ayeefha^ having heard of a woman who,
Jhaving purchafed a female flave from ZeydBinBMim for eight hundred
Srms^ had afterwards fold her to the faid Zeyd for fix hundred £rms^
4 fpoke
Chap.V. sale. 443
fpokc to her thu5 » " 7%h purcbafe and fak en ywr part is ^aj; in^
^* form Zeyd^ that certainly God will render null his pilgrimages
** and enterprtfes achieved along with the prophet unlefs he repent offucb
" ro«^/»i5?."— -iSECONDLY, if the iale in qucftion be valid, it follows
that the firft feller remains indebted to the purchafer for Jive hundred
DiR MS, and the purchafer to him for one thoufand dirms. No\tr if their
account ihould be balanced, and five hundred £rnis be flruck off from
the debt of the purchafer, in liquidation of his claim upon the feller,
there remains five hundred due by the purchafer, for which he has
received no return, and this is unlawful. It is otherwifc where the
feller, in the fecond iale, .gives the purchafer goods in return ; be-
caufe there the difference is not obvious ; being apparent only with re-
fpeft to articles of the fame kind.
If a perfon, having purchafed a female flare for Jive hundred bat the con-
DiRMS, and taken poflefiion of her, fhould afterwards, before he had Invalid SliA
difcharged the price, fell her, in conjunction with another, for Jive '*!|*^*?.*y
hundred 1}IKIAS^ to the perfon from whom he had purchafed her, in H-hichmay
that calc the fale. is valid with rcfpeft to the female flave whom he had tjJtSgfaS
not formerly purchafed from that perfon, but null with refi)e£k to the »*«w-^*
other. The reafon of this is that, as a part of the price is neceflarily
oppofed to the new flave, it follows that he purchafcs a flave, andiells
her again to the (amc perfon for a Icfs price than he had pur«
chafed her for, which is not lawMl, as has been already fhewn.— -
No fuch reafon of illegality, however, exifling with regard to the
fale of the other flave, it is therefore valid, in a prices proportioned to
her value.
Object 10 K.— It would appear that the fale of the other flave is
alfb invalid, becaufe the perfon has fold both by one contraft, }nd as
the fale of the one is invalid, it would follow that the fale of the other
is alfb invalid, (according to the tenets ofHaneefa^) in the fkcne man-
ner as where a freeman and a (lave are ibU by one coninuSt tb«
LII2 fale
SALE. Book XVI.
fale of the Jleeoc being in that cafe invalid as wcU as that of tho
^freeman.
Reply.— The (ale of the other ilave is valid; and the invaliditj
of fale with refpeft to ow does not afieA the fale of the ^iher ; becaofe
the invaliMty; in this inftanccy is weak^ as there is a difierence of
opinion regarding it amongft our doftors; and alfo^ becaufe it is
founded on a iiifpicion of ufury^ the efFeft of which fulpidon
cannot extend bejrond the /ubje£l of fufpiciout namely^ the firft
(lave.
Tkcffipoli- If a perfbn purcbafe oilt on this condition! that it beweij^ed
dSc M^m!* ^^^^ ^^^ ytiSA in which it is. contained, and that a dedu&ion of fifqr
11^^ ^ rails (hall be made on account of the weight of the veflel, fuch fale is
not valid; whereas, if the conditbn be, in general terms, that ^^ a
^' dedudbn fhall be made for the weight of the veflel,*' it is valid ;— -
becaufe the fohner condition is not eflential to the contia&y whereas
the latter is efTcntiaL
Cifeort«r. If a peribn, having pufcha&d oil in a leathern bag, ihould cany
KJJfJ^"' it away with him, and afterwards return a bag to the fisUer weighing
£ki!^ ten ro/i^, and the feller aflert that '^ this is not the bag he had car-
ttMBd tbi* ^ lied away with him, as that weighed ocXyfive R atls ;*' in this caie
the averment of the purchafer is to be credited, whether the quefHon
of diiagrpement be conlidered.as Idating to the Ih^ bdng difierent,—
or to the confequent-difierence it creates with refpeft to the quantity
of oil; becaufe^: if the dii&rence be confidered as relating to the iden^
tity of the bag of which the purchafer "had taken pofleifion, bis afler^
tion muft b6 credited^ iince the word of the pofleffiir is to be credited,
whether he be rejpos^bk for the article (as in the caie.of an ufitrfer)
oc toi^f^f zcMfident (as in the caie of a /^j^#;)— or if, on the other
hand^ the difference be ooniidered as relying to the quantity of oiU
this refolves itlelf intoa difference with lefpeft toithc amomt 4^tba
Chap.V. sale. 445
frke^ the ieller claiming rnorc^ and the purchaler acknowledging le(s :
the purchafer is therefore the defendant ; and the aflertion of a* de-
fendanty Upon oath, muft be credited.
If a Mujiilmm defire a Cbrlftian either to purchaie or fell wine or ^ i^JF^^
a hog on his accodnt, and the Cbriflian a£k accordingly, in that cafe mkwk a
(according to Haneefa) fuch fale or purchafe is valid: but an order of feu^'^r-
a Muju/num to this efFeft being in the higheft degree abominable,, he £^j-"£'^
b therefore enjoined (where it refpefts the fale of thofe articles) to dc- ^JV^!J"iL
vote the price obtained for them to the poor.-^The two difoiples orporchafie,
maintain diat the purchafe or fide of wine or*a hog by a Cbriflian^ on ^^^^^
account of a Mujfubnan^ is invalid; (and the fame difference of opi- ^*
nion alfo obtains with refpeft to the cafe of a Mobrim appointing an
agent for the fale of the game he may have caught, when it became
unlawful for him to make fuch fale.) The argument of the two
difciples is that the confHtuent, as not having himfelf the power of
felling or purchafing thefe articles, cannot of confequence kivefl
others with fuch power; — ^befidcs, as all the afts of an agent- revert
to the conitituent on whofe behalf they are performed, it is therefore
the fame sa if the Mujfulman were bimfelf to fell or purchafe thefe ar-
ticles, which would be illegal. The argument of Haneefa is that the
amtroBor (that is, the furcbafer or the Jeller) is, in this infhnce, no
other than the agent ;^(or this reafon,* that be is fully empowered to
perform thefe afts: the reverting, tnoreover, of the property to the
conftituent is a necef&ry and unavoidable efFed", and therefore is not
prevented by his f/Um; — ^in the fame manner as the artfcks in quefHon
may defcend to a Mujfulman by inberitance ; — (in other words, if a
Cbrifumt whofe heir is a Mujfuhnan^ fhould himfelf embrace the re*
figioa Q^IJUim^ and afterwards die^ before releafing his hog, or con-
verting his liquor into vbegar, in that cafe they would defcend to his
Muffubium heir.) — It is to be obferved, however, that althou^ Hd-^
netfa admits the validity of the fUrcbaft'of thefe articles by a Cbrijliaa
agentt on behalf of a Muffulman^ ftili he^bolds it incumbent oa
the
44^ SALE. BookXVL
the Muffiiliium to convert the liquor into vkkgar^ and to iet free
the hog.
A fide is reti- If a pcrfbn fell a male flave^ on condition that the pntchafer (hall
l^die inf^. "emancipate him, or make him a AbJabbir^ or a MoJUitUf'-^or if a
cMd^M al. P^'^^ ^^^^ ^ /emalc Have, on condition that the porchafer (hall make
vantaseonsto hcr an y//7f-/^////,— fuch falc is invalid; becaufethisis a(aleyij/^if<^^
orreptt^Mt ^^ condition; — and fuch iales are condemned bjrthe prophet. — The
totof'Sf* rule, in this particular, is founded on a tenet of our doftors, -that the
coomai or mfertion of any condition which is a neceflary refult of the central
occifiofi am- (fuch as where the feller bargains that ^^ the purchaier (bsM become
^Mnff^ •* proprietor of the article fold,") can no way aflfcft the validity of the
advantage to coutraft, fince that would be e(labli(hcd indepaidant of any ftipuh*
iifejjt: tion ; — ^and, on the other hand, that the in&rtion of any conation
which is not' a neceflary refidt of the contrad, and in which there is
. an advantage either to the buyer or the feller,— or to the/uiJe3of the
fale, if capable of enjoying an advantage, (fuch as where the feller bar*
gains that ** the purchafer ihall emancipate the flavchefcUs to him,")
renders the con trad invalid; becaufe an additional and esctraneous a£t
is, in this inftance, required from the purchafer, without ftipulating
a recompence to him, and which of confequeoce is of an nfurious na-»
ture;— and alfo, becaufe as there is an advantage in this condition to
xYicfubjeS of the fale, who is capable of claiming it, it follows that a
contention muft neceflarily endie, and hence the object of (ale
(namely, the prevention of Arife) is fruftrated. — Conditions of this
nature are therefore unlawful, excepting where cudom and precedent
prevail over analogy; as where a per(bn purchaies uniewed (hoes on
condition of the feller*s fewing« or cauiing them to be fewed for him.
The infertion, on the other hand, of any condition which is not a
neceflary refult of the contract, and which, moreover, is not attended
with advantage to any particular perfon, does not invalidate the con*
tra^.— An example of this occurs where a per(bn fells an animal, on
condition .that ** the purchafer (hall yrJ7i/i;^im;** which condition
is
ChAP.V. SALE. 447
is lawfuly becaufe there is no particular peribu.whofe right it is to
cbum the performance of it, (fince the animal is incapable tif fo
doing,) and hence neither ufury nor ftrife can attend fuch a flipulation.
Now, having explained the tenets of our dodors, it is proper to re-
mark that the conditions recited in the cafes in queiUon are repugn
nant to the nature of the cotitrad, as they tend to deprive the pur-
chaier of every rij^t to which the iaie entitles him; and they alio
involve an advantage to the fubjeft of the £tle, who is capable of
claiming it :*-^they therefore invalidate the contra^ — SAafe'l diffcats
from our do&orsi as he holds the ^e of a flave, on condition 4)f his
emancipatioui to bo valid.
If a periba fliould emancipate a flave whom he had purchafed on ^^n^fiickC^te
that condition, then the fale, which, becaufe of fuch condition, was ynJaixy. hv
previoufly illegal, becomes valid, according to Haneefax and the pcr£LiA^
purchaier is refponfible to the fcUer for the price. The two difci[dies ^^^^'^^^
are of opinion that the emancipation does not render* the fale valid ; ^^ p^-
and that therefore the payment of the valuta and not of the/r/rr, is ^
incumbent on the purchaier; becaufe, as the fale was originally in*
yalid, in confequence of the condition, it cannot afterwards be ren-
dered valid by means of the emancipation,, any more than by the
purchafer^s murdiring or fetiing the flave.. The. reafoning of HoHftfa
is, that although the condition of emancipating the flave be not, m
it/elf^ agreeable to the rcquifites of a contrafl of fale, (as was before
explained,) {till it is fo i^ iffeSi becaufe it completes the right of
property on the part of the purchaier; and a thing becomes eila-
Uiihed and confirmed by its completion;, whence it is that the
emancipation of a purchafed flave is no bar to a right of compepfation
from the feller in cafe of a defed.
If a perfon fell zjlave^ on condition that ^* he ihall ferve him for |^^ ^:
*^ the fpace of two months after the iale,**-*or a boufe^ on condition h^ ^ tAntH
that *^ he (hall refide in it for the foacc of two months after the S^^!^*^^
4*8 SAL E. Bock XVL
^/tfjnrrrom ** falt^^^'^^x^ if a perfbn fell any other article^ on conditkxi of the
AU^ purcha(er*s lending him a Arm (for inftance») or making him fome
prefimtf— the (ale fo fufpended on any of thefe conditions is invalid :
FIRST, becaufe thefe conditions are not agreeable to the nature of a
iale, and are attended with an advantage to the feller. Sbcondly^
becauie the prophet has prohibited a iale on condition of a han : and,
TkiRDLY, becaufe, if any dimuiution be made in the price, on ac-
count of the iervices of the flave, or the refidcnce in the houfe, it
folbws that a contract olirent is interwoven in. that offalei or if, on
the other hand, no diminution be made in the price on the(e accounts,
it follows that a deed of loan is interwoven in the iale; and both of
thefe are illegal
•r.b^clieili. If a perfbn fell goods on condition of his being permitted to
Sikr^the fufpend the delivery for a month, the fiile is in fuch cafe invalid,
ttHiify^fixi i^ecaufe a fufpenfion with refped to the delivery of goods which are
extant and fpecific is an unlawful condition. The reafbh of this is
that a fufpenfion in point of time has been ordained by the law,
merely for the purpofe of eafe^ .and is therefore only applicable to a
debt^ in order that the debtor may have time to cxAltBi the fum within
tlie prefcribed period and pay it accordingly ;*— but with refpeft to a
thing afkually extant, (fuch as clotb^ for infbnce,) there can be no
occalion for fuch fufpenfion.
or^bythein- The fale of a pregnant flave, with a rcfervation of thc/aius in
invalid Cm- her womb, is invalid; becaufe it is a general rule that nothing, the
fale of which by stje/f is illegal, 'can be made an exception to a con*
traftoffale; and of this nature is n fains. The fale, therefore, is
in\*alid, becaufe of the invalidity of the condition. It is to be ob-
fcrved that a contraft of Kitibat^ of hire^ or of pawnage^ are the
fame with a coutraft of fale, in this rcfpeA, that an invalid condition
is a means of invalidating the deed. In the cafe of KsidbaS^ how*
ever, the invalid condition muft actually exift in the deed; as when a
perfon
Craf.V. sale. 449
perfon enters into covenant with ht€ flave to emancipate him on con-
dition of his pving him w/iif » or a io^. It is alio to be obferved tliat
in the cafes of gift, alms, marriage, KAoo/a^ and compofition for
wilful murder, the exception of the /atiu does not invalidate the
deed; on the contrary, the deed takes phce in full; but the ecndition
is uivalid. In the (ame manner, an exception of the fatus docs not
invalidate a legacy ^ £>r in this cafe the exception is a valid condition.
If a perfon purchaie cloth, on condition that tlie feller iew it into or of a con*
the form of a veft on his account, the iale is in fuch. caie invalid; ll!|^^|h!e
itnce this condition^ befides being attended with an advantage to the ^^^i^ ^
purchaier, is iiot a requifite ofxhecontraa of £de. Moreover, this tr^ai
neceflarily fuppoies the implication of terms of two diffennt con*
traAs ; that is, either olfak and loan^ or oSfok and hire.
If a perfon purchaie one (hoe from another, on condition that the
feller prepare z fellow to it on his account,— or purchafe a /tf/r of
ihocs on condition of the feller making ftraps to them, for the purpoic
of tying them, the £de in ather caie is invalid*-— (The compiler of the
Hfddya remarks that this b according to 4mi/!^; for a more fiwour-
able conftruftion would fuggeft that fuch* ftle is lawful, on account
of its being cuftomaiy amongft men.)
If a perfon fliould purchafe an article, and ilipulate the payment erbjraAW
J period BOl
yews^ the fale, under fuch conditions, is invalid, provided both parties peciMy
be not mforracd with certainty reipeding thoie periods. The £de, both pv dci»
of the price on the day of the new year, or on the Mibrjdn *, or on ptyatM oi
the faft of the Chri/Hansf^ or the day of breaking lent amongft the JjJ^;^
• This it alio termed MrhUk. A feftival bbfenred \j the aadcnt ?ii/m on the
day of the autumiul equinox. f Btjfltr.
Vol. II. Mmm however.
450 S A L £• BooKXVIr
howcver« is lawful, if thdc periods be aicertamed within the know-
ledge of both parties.
w the date of ^ jji^^E IS hot valid where the price is ftipulated to be paid on the
fence of fcturn of the pilgrims, or, on the catting of the grain, or on the
cemin" "^ gatherbg of the grapes, or on the (hearing of the fliccp, — ^bccaufc in
none of thefe cafes is the period aUbktely determinate: contrary to
the aft of ghing tail;, for the giving of bail, unril any of thefe pe«
riods, is lawful: ; becaufe z/mx/I degree of uncertainty does not inva-
lidate a bail-bond, in^tfae £ime manner as it does a contradl of fale.— -
Sdwhm^ If, however,, a fide be made in an abfolute manner, and the fcUcr after* .
'Of mr- wards agree to receive the price at any of the periods in queftion, it
b/a>Sri^. is law^l, becaufe, this ftipulatibn not being included in the contraA
fwjjV». ^ u^Ye^ jj becomes aft^idatwn with- regard fy payment of dbbt, (not
ihtfrke) which admits of a fmall degree of uncertainty.
A ftl^Mi^ Ip a fide be made, ftipulating payment of the price at any of the
qveneeof tt- pcriods above ftated, and afterwards the purchafer and feller jointly,
JjJjJ;? Sir " '^^ purchafer alone, remove the obftacle of uncertabty ♦, prbr to
of paxment, the a£bial occurrence of the period ftipuhted,. the fale then becomes
XSS^hf vaUd. Ziffer maintains that, the iaie being originally ^invalid, the
Sulwon- fubfequent removal of the obftade cannot render it valid; in the
t^i^r* fiune manner as a marriage origiaally contraded for a fixed period
would not hpcome valid by rendering it perpetual The argument of
our do£^ors is, that the invalidity of the fide, in this cafe, is. merely
becaufe of the apprefaenfion of the litigation, ta which the uncertabty
may give rife; and of courfe, when this -uncertabty is removed, the
fale remabs valid Moreover, as the uncertabty, b this cafe, re*
lates only to an accidental circumfiance^ that is, to the period when
the price is to be paid, and not to the price itjelf^ which is one of the
* By pajnog Aefrici^ or Bxing the time of pajment to tmtj^ifie period fiich as
)irf)F^ for inftaocc*
eflcntials
CHAf. V: SALE. 451
cflcntials of fale, the uncertainty is capable of being removed. It is
odierwife where a periba fells one Jirm for two Jirms^ and altter*
wards relinquiihes the additional £rm% for the file does not in con-
fequence of fuch relinquiihment become valid^ fince the invalidity
related to the price itfelf which is an eflentisl of Uie &Ie. R is al^
otherwife in a cafe of tiuarriage for a particular period, becaufe this, in
fad, is not zmarriage^ but a feparate deed called Madt *, and by no
fubiequent a&s can one deed be traaCnitted into amtber deed.
If a peribn expofe to filea freeman and a (lave, and fell them botCi Tbc&kofa
in one cbntn^,— or, in the fame manner, fell a carrion goatf , and \tmMiMi
one that has been flain by the prefcribed form c£Zibfy^ — fuch file, ^^**"'
according to Hanecfa^ is utterly invalid with refpeft both to the free-
man and the flave, as in the JS/^cafe, and the carrion, and flain goat,
as in thcJecanJi — and this, whether the feller have oppofed a fpedfic
price to each or not : (the two difciples are of opinion that if a fpeci*
ficpricebepppofcdto each, thefale is valid with refped to the^/^r, b«tif£hem.
or the fiiin goat.) If, on the contrary, a pcrfon unite in fale, an abfo* '^i^u^
tc Jhrve and a Modabbir^ or a (lave that is his property, and another (^» ™J^'
hAeJlevc and a Modabbir^ or a (lave that is his property, and another {^ •!!?*
that is m/, the fale is in either cafe lawful, with refped to the abfb- with r^ea
lute flave, or the flave which is his property, in return for a proper- ^ma/^
tion from the whole price ftipulated. This is, according to our doc-
tors, (namely, Haneefa and the two difciples.) — Zrffer is of opinion
that the fale is not lawful in^ithef cafe, with refpe£l to either fubjeA.
The two difciples argue, that where a fpecific price is oppofed to each
particular fubje£t, the invalidity of the file extends only to that fub-
jeft which contains a caufe of invalidity, (namely, tht freeman or the
carrion) but does not reach to the other fubjefts, (namely, the flave
or the flain goat ;) — in the (ame manner as where a perfbn marries a
ftrange woman and his own (lOer by one contra^, in which cafe the
marriage is valid with rcfpeft to the flrangcr, although it he invalid
* Set' Vol. I. p. 91. t Meaning mj dead fpat, not flain according to lav*
M m m a with
45^ SALE. Bod< XVL
with refpeft to his^^,— Ibr that invalidity does not extend to the
firanger ;— and fo al(b in the caie in queftion. It is otherwift
where the price of eadi particular fubjeft has not been fpecifieJ ; for in
that cafe the invalidity extends to the whole* HaHeefa argues that
there is a material dtfierence between the two cafes;— namely, the
cafe of joining in fale zfrunum with a (lave, and Chat of joining a <Alb-
Jabbir with- a flave; beeauie a freeman, as not being property, b ut-
terly incapable of being included in a contraft of iide^ and as the
compreheofion of him in the fale neceflarily efbblifhes the conditioa
of the acceptance of the £de with refpe£b to bim^ it follows that the
iale is invalid, becaufeof &e invalidity of the condition: pontFary to
nuarriage^ as that is not rendered invalid by an iavalid condition.
The fale, on the other hand, of a fUive the property of another, oc of
a Mokitibf Modabbir^ or Am-fVaBd^ is merely fuJpmieJ^ fi)r thefe
may be included in a contrad of falcj, as they are property^-^whenoe
it is that the fate of them may be carried into execution, in the cafe of
t\ic Jlranger'^ flave, by the confent of theproprietor,-^n the cafe of a
Mokitib by his aic;ii.confent,r-wd in the cafe of a Mtnlabbir or Am-Wa^
Hi (m the opinion of the two £/dSrr/) by a decree of the KSmc to this
efieft; — but as it is tabe fuppofed that the proprietor of the flave, on
account of his right to the iubje^of the fale^ and the Mokitib^
M^iabbhr^ or Am-WalU^ becaufe of the claims efbbllfhed in thdr per*
fons, will repel the fale, the fale therefore is executed only with rela-
tion to the abfblute flave ;' in th^ fame manner as where a perfon
purchafes two flaves, of whom one dies previous to the purchafer
taking pofTcffion of them; in which qife the fale holds good widx
rcfpedt to the other.
SfiCTIOK.
Chap.V. sale. 453
SECTION.
Of the Laws of InvoTtd Sales.
Whenbvsr the purchafer, in an invalid falc, takes pofleffion of in ta imvmiid
the goods, with the confcnt of the feller, then, provided both the ^J^****^'
goods and the price be property*, the purchafer becomes proprietor ipcmfibte, Mt
of the article foU, and remains refponfiUe, not for the prke^ but for the fci f^^^**
value of the goods, in cafe they be deftroyed in his pofleffion. ^^•^.^
Sbrfn maintains that the purchafer does not become proprietor, al- ^V lu m.
though he takepoffeffm of the article, becaufc an invalid fale is for- iSlRwhSe
bidden, and therefore cannot fubftantiate a ri^t of property : befides, ^ Ha« taken
any thing which \% forbidden is not ian£tioned by the law, iince fro^ n^^^^
Aiiition is repugnant to crdinaace; an invalid lale, therefore, is in no '^^^^^
refpea fandioned by the law: (whence it is that the purchafer of
goods does not become proprietor before feizin ;) and the cafe b con«
iequently the £uae as if a peifon fhould &U ibmething in exchange
for carrion, or (hould fell wine in exchange for memey. Our doQors,
on the other hand, argue that, in this cafe, the ^ential of £de
(namely, an exchange of property for property) exifts. The fui/ea
of the ialc, moreover, is property^ and is therefore zft fulgeft* The
buyer and feller alfb are both competent to the aA:^— and where all
thefe circumfbnces exift, the iale is duly contraAed. Befides, the
prohibition is no way repugnant to the leg^ity cfibeJaU hfelf be«
caufe the prohibition relates only to an acceffary circumffamce, name-
ly an invalid irniMtion I the right of property, therefore, after feizin,
accruer to the purchafer in virtue of the falc itfelf which is legal, and
* That IS, be oTfoch a nature as to cooftitute propcrtf*
I not
454 SAL E. BookXVT.
not in virtue of any matter which is prohibited^ or contrary to the
LAW. The purchafer, moreover, dods not become proprietor of the
goods before feizin, for two reafons :^— first, becaufe, 'although an
invalid (ale be a caufe of right of property, yet it b a weak caufe, and
therefore (lands in need of the aid of fetzin topve it eflfed: — sb-
coNDLV, becauTe, if the purchafer become proprietor /rw/^AX to the
feizin, it would neceflarily follow that a ian&ion is given by law
to the invalidity, whereas it is incumbent to remme the invalidity.
With xtfydSt to the cafes of a iale of any thing in exchange for cor-
.r/M, or of wine in exchange for mmey^ the efientials of £de do not
exifl in ather of thefe, as has been already demonflrated. It is efb-
blifhed as a condition, in this inflance, that the fdzin be made wiib
tbe con/int of ibe %blvzk; it is fuificient, however, (according to a
favourable conftnidion of the law,) if this conient be by im^ication ; as
if the purchaier fhould make the feizin in the place offak^ and inprefence
tftbefelUr. The realbn for zfguourabic conffarudion of the law, in
this particular^ is, that as the feller, by the contra€b of fale, virtually im-
powers the purchafer to make feizin, and as the purthafer does fo in his
prefemce, without his making any objection thereto, it is therefore con-
ftrued to have been made ic;//^i&/i£::^9i/: inthefiunemanner as thefeizin
of a ^t, in the place where the deed of gift b' executed, b valid ac-
cording to a £ivourable conflrudion of the law. It b alfb a condition,
that both the goods and the return be property ^ in order that an ex^
change rf property for property (which' is one of HxtpUtars of fale) be
efhUifhed; hi if thb were not the cafe^ the fale would ben^iy, in the
fame manner as a fale in return for carrion^ Ueod^ the perfbn of a
freeman^ asr^ or the like; and hence if, in thefe cafes, the purchafer
fhould take pofleffion of the goods with the confent of the feller, flill
an' the v^ he b not refponfible for them. With refped to what was flated, that
bjMrffor the feller ^^ remains refponfible, not for the priee^ imt for the veJue
Imf^oa^to "*** ^^ ^^^ S^s," it relates only to fuch goods as are of a nature to be
.die smre of compenfated for by nicney ; for with refpefi to fuch as are com*
penfable hyfmilars^ the purchafer is refponfible for ^Jmiiari becaufe
7 *h*t
CiiAP. V. SALE. 455
that which is a fimilar both in appearance and in effect is a more equit*
able compenlation than that which is fimilar in effeS only.
Ik an InoaUd falct either of the parties^ previous to the ieizin, has Btcber pan,
the power of annulling the contrary in order that the invalidity of ^uiu?bc«^
it may be removed. The law is aUa thD fame after feizbt provided ^^^ ^*****'
the invalidity ezift in the body of the contraA. If, however, the in-
validity be occafioned by the addition of an invalid coniCtionf the per*
fon ftipulating the condition is alloiwed to annul it, but not the oiier
party.
If the purchafer, in an invalid fSde^take pofieflion of the article^ Apuithaier
and then fdl it, in that cafe the fecond Tale is valid,— as the firft pur- valid &?e''
chafer,.having become proprietor in virtue of feizin, is fully compe- ^jj^J^^f
tent to icU the article : — ^and, upon his ib doing, the right of return- tick,
log theartidcto thefirft feller expires 2— first, Becaufc the right of g/J^J^
the iaSviJual (namely tht fecaad purcbafer) is conneded with the amidLgdM
iccond iale;.and the aimulment of the firft fale in confequence of its ^*^**P^*
invalidity, is on account of the right of GoDr*^; but the right of the
individual has preference to the right of God, as theindividual is ne*
ceflitous, whereas God is m/ ib :— ssco2<dly» Becaufe the Jlrfi fale
is legal in its effencef hut Jwaiid in its quality ^ — ^whereas the JeccnJ
fale is legal in point of both ; and it follows that the lafUr cannot be
cbflrufted in its operation by the Jbrmer: and, thirdly, becaule
the iecond (ale is made with the virtual aflent of thc/rfi feller, as the
power to that effca was by him beftowed on the firft purchafer*— It
is otherwife wherethe purchafer of a houfe, .in which there is a right
oiSbaffa^ fells it to.another ; fpr there the perfon entitled to the right
of Sbaffa has neyerthelefs a juft title to it ; becauie it is the right of
the indlvidua!^ in the fame manner as that of the fecpnd pyrchafer ; is
^ la ocher voidv-^i^ riSe^' !r'A# MW«
equal
456 SALE. BookXVL
equal to it in point of legality; and has not been forfeited by any
power given by him to the purchafer to make the fale.
Theporcliarcr jp a pcrfou purchafc and take poflcflion of a flave, in cx-
artklc in re- change for wtjte^ or a 6ogj and afterwards either emancipate him,
wMchTs tfT- ^^^^ ^^^^ ^^ bcftow him in gift, all of thcfe afts are valid, becaufe of
^*/*'« »jjy the purchafer, in virtue of the feizin, having become proprietor ; and
fioQ dtfpore he is refponfibic to the feller for the value of the flave. In the cafe
fit;' remain-* <il emancipation^ as the property immediately ceafes, the flave becomes
fibVonT^for (^^ ^^ were) dejlroyed^ and hence proceeds the refponfibility of the
ihew/4tf. purchafer for the value. In the cafe oifale or gift ^ the refponfibility
arifes from the right of returning him to the (eller being annulled hi
coniequence of theie deeds, as has been already explained. It is to be
obierved that ptrwnage^ or the making a flave a Mokdtib^ is equivalent
to fale^ and therefore annuls the right of return to the feller. The
redemption of the pledge, however, or the inability of the Mokdtib
to perform -his covenant, reftores the right, becaufe the bar to its
opcratioa is removed.
TheicUer Ix an invalid iale, the ieller Is not allowed to refume the gpods
S!I!c*thear- from the purchafer, until he (hall have firft reftored the purchafe-
r'^rn^ihe^ money; becaufe the goods, being oppofed to the purchafe-mon^,
psrchife-mo- are retained in the nature of a pledge until the reflitution of it. If
"^'.^ . the feller fliould die, then the purchafer has a prior cUum to the fub-
and 11 the , ^ _ ^ ; , - , • - , , ^ ,
feUcrdie,the ject of lale; that IS, he IS permitted to take payment of the price
cniUWdTofci fr°^ *^^ ^^^ of the goods, giving the remainder (if there be any) to
"P^« *"'^'* ^^ other claimants; becaufe, as he has a right in the goods fuperior
deronifyhim. to any Other pcrfon, during the lifetime of the ieller, he confequcntly
price he has has a right preferably to the feller^s heirs or creditors after his de*
^* ceafe ; in the lame manner as the holder of a pawn. It is to be ob-
ferved, that if the price was paid in £rms^ the purchafer has a right
to exa£t from the feller the identical (Erttts he paid him; fmce the
purchafe-money, in the cafe of an invalid fate, remains in the hands
of
Chap.V. sale. 457
of the feller in the nature of an ufurpation. h\ however, the identi*
cal dirms be not in his poiTefHon, then the purchafer is entitled to an
equivalent.
If a perfbn purchafe a houfe by an invalid fale, and afterwards Cafe of aa
convert it into a mofque, he is in that cafe rcfponfible, according to pioperty* m
Haneefa^ for the value of the houfe. . This is alfb related by Abco ^^^^\
Toofqf^ in the JamaSagbeer^ as the opinion oi Hamefa: but he after- wrongbt bya
wards entertained doubts refpe£ling it. The two difciples maintain dor m invalid
that the houfe muft be reftored to its original (hite, and then returned ^'^
to the feller. — ^The fame diiierence of opinion obtains, if the pur-
chafer fliould plant trees in the court-yard of the houfe. The argu-
ment of the two difciples is that the right of the neighbour^ \s of
weaker coniideration than the right of the filler i — (whence it is that
the right of a neighbour requires to be fupported by a decree of the
KaseCf and aiilv that it becomes null, by any delay in tlie demand of
it,— nrither of which is the cafe with refpeft to zfilkr's right;) and
as the right of the neighbour, which is the weaker right, would not
be annulled by the coiiverfion of the houfe into a mofque, it follows
that the right of iht filler^ which is the JlrMger^ is not thereby an-
nulled a fortiori The argument of Haneefa is, that the a£t of build-»
ing or planting proceeds on an idea of perpetual pofieffipn; th^t the
purchafer in fo doing ads in virtue of a power to that efieA which he
holds from the feller ; and that therefore the filler has no right to the
reflitution, in the fame manner as in the cafe of its being refold by
the purchafer. It is otherwife with the right of a neigUour^ as he
does not give power to the purchafer to buUd or plant on the place
over which his right extends ; whence it b that if the purchafer had
dther beftowed it in a gift, or foldit^ hi) right of neighbourhood
would neverthelefs {till have remauned in force. Aioo Torftf^ who
reported what is here advanced as^the opinion oi Haneefa on this fub-
* Arali. Sbojfiii iQcaniag die perfen entitled lo the right of pre-coiiitioa in virtue oT
Slmfn.
Vol. II. N n n jecl.
45^ SALE. BooxXVL
jed, afterwards diftrufted his memorj, as has been already obienred.
Mobammedj howeveri in treating ofSbaffa*^ expreisly infers the dif-
ference of opinion here recited ; — ^for, he (ays, " where a purchaier^
** under an invalid (ale, builds .upon the ground he has purchafed,
*< the neighbour has no right oiSbaffa therein, according to the two
*< difciples, any more than previous to the purchafe/* Now as Ha^
neifa^ on the other hand, has oiauntamed that in fuch cafe the nei^-
hour is entitled to take the place, upon paying the value, in virtue
of his right oiSbaffa^ it clearly follows that in his opinion the right
of the feller is annulled; becaufe it is on this circum(bnce that he
founds his opinion of the exigence of the right of Sbaffa^ (ince (b long
as the right of thc/eJ/cr remains in force, that of the neigbbour cannot
Uke place; — whereas, according to the two difciplcs, the right of
the feller is not deftroyed by the building of the purchafer, and thece-
fore the claim of Sbiffa does not take place.
The piofit If a peHbn purcha(e zfemak fiave (for inllance) by an invalid coti -
d?^^^, 'f*^t *°^ ^*^^ po(reffion of her, aind the fdler take po(re(rion of the
opon a a^ purchafe-money, and the purchafer then di(pofe of her, by (ale, to
purcbafed ' another per(bn at a profit, it is in that ca(e incumbent cm him [the
vaK?SD^* purchafer] to beftow in charity the profit fo acquired :— -but if the firft
uaa.mu^be feller (hould have acquired a profit upon, or by means of, the pur*
dttS^; "* chafe-money, he is not required to bc(h)w fuch profit in charity.
The reafon of this diftinftion is that as ^c female Jlaoe, ^fov inftance)
is a defnite article, ^tfecond contraft of fale relates identically to her,
and the profit acquired by the fale of her is accordingly bafc. — Dirms
and Jeenars^ on the other hand, are not dejinite in valid contraAs ; and
as Xhtfecond contraft is of a valid nature, it confequently does not re*
late to them identically, and accordingly the profit acquired by them
is Mi bafe. This di(tin£tion, however, obtains only where the ba(e*
ne(s is founded on the invaliStjf of the right ; for where it is founded
•IncbeiCi^
on
Cba?. V. SALE. 459
on the abfalute nothcxijlence of right of property,— (a< where, for and fo alio*
inibncet a ufurper acquires a profit upon the property he has qlliitd'opon
ufurped,) — there is no difierence whatc%'cr; — that is, from which- JISJ^JS^J^*'*
ever fubjed the profit is obtained^ it is tinlawful, and mufl be be* right of pro-
flowed in charity*; becaufe, where a perfbn fells an article, the ^"^•^
identical property of another, (fuch as any article oi hcufeboli goods C)
the contfafi of fale rdates to that aftual article, and the profit acquired
by it is accordingly unlawful; — where, on the other hand, a perfon
purchafes a thing with mtmey belonging to another, although thie
coatraA do not relate to that a£tual money, (fmce, if other money
were given inftead of it, the contract nevertheiefs holds good,) ftill,
however, there is a fmblanct of the contract relating to that par-
ticular money; for if he were to give that a£lual money to the fdler,
the article purchafed in return would remain appropriated to him ; or
if, on the contrary, he- were ovXy to point to that nraney, and then
give other money inftead of it, the amount of the price of the article
is, virtually, in that money :-**for this realon, cherctore, there is a
femblance of the contract relating to that money, and confequently
that the profit is acquired by means of the property of another perfbn.
Now, as the bafenefs occafioned by an invalidity of right is of lefs
moment than that occafioned by the abfblute non-exiftence of right, it
follows that the bafeneis occafioned by the invali£ty in the right of
property occafions a femblance of bafeiiefs in any thing in which
the abfblute non^exiftence of right occafions tf^M/ bafenefs; (and that
is any thing of a definite ntvaitt^ fuch as tfiavegirl^ for inftance, ae
in the cafe in queftion ;)— «nd, on the other hand, that it occafions
tn apprtbenfion of a femblance of bafenefs in any thuig in which the
abfolute nm^exjflenee of right occafions only a femblance of bafe-
nefs;—<uid regard is had to a femblance of bafenefs, but not to
* For aneiplaiitdonortho principle on which thii praecedi, fee Purtmrjkip^ (Vol. II.
p. 325.) whert tt b declared dial «« prtfii een/nt h hwfulfy ecfuini np^ m frppirtj r#«-
^eimiiitwkkkiitnhmr^m^if.*'
N n n a an
46o SALE. BookXVL
an apprthtnfion of a femblance. — It is to be obferved that if a per-
{on claim a debt from another of a thoufand dirfns^ and obtain pay-
ment of the fame, and both parties afterwards agree that the debt was
not due, — in that cafe the profit which the claimant may in the meaa
time have acquired by pofleilion of the. money is lawful to him; be-
caufe the bafenefs^ in this inftance, is occafioned by invalidity of right;
for this reafon, that the debt had been owing in confequence of the
demand of the claimant, and the defendant's acknowledgment of it ;
and it afterwards appears that this debt is not the right of the claimant^
h\xt of the otAer^ (namely, tht defendant :) ftill, however, the thou*
fand dirms which the claimant took in fiti$fa£lion for his demand have
become his property, as the iatisfaAioa for a daim becomes the pro*
perty of the claimant, although it be under an invalid right; — ^aud as
the bafenefs, in this inftance, is occafioned by the mere imalidity of
right of property, and not by theabfolote nM^xiftntce of ihzt right,
it confequently caimot operate, nor have any tfk& with refpeft to a
thing of an indefinite nature, fuch as moneys for infhnce.
SECTION.
Cy Sale^ and Purchases which are abominable.
Itbabotola* Thb prophct has prohibited the pradUce of Wy]^,— that is, the
able to «. enhancement of the price of goods, by making a tender for them,
(ricTof ner- without any intention to purchafe them, but merely to incite others
f&SS^ to the offer of a higher price. The prophet has alfo prohibited the
Mdcrofa purchafc of a thing whidi has already beenbargamed for by another;
^'^^ but this prohibition fuppofes that both parties had before conje to a
mutual
Chap.V. sale. 461
mutual agreement; for otherwife there is no 'impropriety in fuch
fub(2quent purchafe.
The phopret has alfo prohibited an anticipation of the market, — or, to imici-
as where people meet the caravan, at a diftance from the city, with Jiif uli mL".
a view of purchafing the grain brought by the merchants, in order to l^<<»
fell it to the people of the city at an enhanced price. This prohibit
tion, however, proceeds on a fuppofition that the foreftallers deceive
the merchants with refpe£t to the price of grain in the city; for
otherwife there is no impropriety in this practice.
Thb profhbt has alfo prohibited a citizen from fellxne for a or 10 enhance
the nr>j* Af
country fMn; — as where, for inibnce, a countryman brings grain or gnS^hl
other goods into a city, and one of the citizens takes care of it, and *^*fe[i*
a£ts as his agent, in order that he may fell it at a high price to the fbrthc^racri
people of the city. — Some have given a different explanation of this
prohibition, by fuppo(ing it to allude to a c;///x^ii*s felling any thing at
a high price to a countryman: but in the FattabalKadeer oiMoojtibba
t\it former is mentioned as the moft au^entlc explanation. — It is to be
obferved, however, that this prohibition fuppofes that a fcarcity
of grain prevails in the city, as otherwife fuch conduf^ is not im«
proper.
It is abominable to buy or fell on a Friday ♦, after the cryer pro- » «o bay or
claims the hour of prayer, bccaufe God has faid, in the Koran^ ds^T^ "'
•* When ye are called to prayer, on the pay op the
" assembly, hasten to the commemoration op god, and
•• LEAVE MERCHANDISING.'*. Morcovcr, if at fuch time purchafe
and fale were allowed, an abfolute duty (namely, attendance at
prayers) would neccflarily be omitted. It is to be obferved, however,
that although fudi purchafes and fales be abominable^ (lill they are upL
• Fridiy is the MiffitlmoM Sabbath.
imalid;
4^a SALE. Book XVI.
iMvaJiJi for the invalidity, in fuch iiiftanceSt exifts with rdpeft merely
to points that are extraneous and aMtionnl^ and not with refpeft. to the
ejfentials of the contract, nor with refpedt totheeAabliflunentof any
condition eflential to its obligation.
Merdiandife A SALE to the bigbcji bidder is not abominable. Thus, if a mcr-
for fair to the chant, for inftancc, having (hewn his wares to a purchafer, fliould
kiihrjtUddir. ^^^y^ f^^^ jjijij J tender for them, but, before he hpd exprefled his
acquiefcence, ihould receive a higher tender from a$iother^ in that
cafe it is not abominable in him to fell them to the latter;— becauie
the prophet fold a cup and a fheet to a higher bidder; and alio, be«
caufe (ales of this kind arc for the intereft of the /oar.
It b abwri»> It is abominable for a perfon pofleiTmg two infant daves, rekted
^10^ to each other within the prohibited degrees, to feparate them from
(ot^^'m^ each other; and the rule is the fame where one of them is an infant
•adiAM^.) and the other an adult. This decilion is founded on a declaration
tktproUbiied of the prophet, '^ IVhefoever caufes a feparation between a mother
^STJ!^^ ** Md her children^ Jball himfelf^ on the day of judgment^ be fepar^
efthmi «< atedfrom his friends fy Goo.'* It is, moreover, related that
the prophet gave two in^t brothers to Aleef and afterwards en-
quired of ^i!r^ concerning them, and being an(wered, by him, that
<< he had fold one of them,** the prophet then (aid '* taJte heed!
<* taJte heedr and repeatedly enjoined him to take him back. Befides,
one infiint naturally conceives an attachment to another, and an adult
per(bn partidpates in the forrow of an infant, and hence the feparation
of them is cither cafe trguci t want of tendeme(s to a child, which
has been reprobated in the traditionit where it is declared *' tnofoever
** does n^fiew tendernrfs 'to a child, andref^a to an slbsr, // not
of* nff people.^^ A feparation, therefbrCf either between two inf ant s^
or between an aduit and an i$fantf is prohibited. It is to be obferved
that the cau(e of the prohibition, in this inftance, is qfinity within
fuch a degree mfy as prohibits marriage betweea the (laves in queftion,
and
Chap.V. sale. 463
and not ginerd affinity, for which raibn any Hfiam relation, fuch as
a/f^mother, or one prohibited by fbfteragc, or by affinity with the
fofierer, are not included ; nor the (on of the uncle ; nor any one that
is not within the prohibited degrees. Neither are a bujbmut and a wife
included in this prohibition, notwithfianding they be both infiints,
and they may confequeutly be feparated, becaufe the tradition which
contains the prohibition, as being contrary to analogy, muft therefore be
obierved in its literal fenfe ; that is, it muft be applied to Tuch only as
are within the prohibited degrees* Moreover, iu the aforeiaid tradi-
tion, both relations are required to be the property of one mafter: if,
therefore, one infant brother belong to Zeyd^ and another infant
brother to Oinar^ each is at liberty to fell his refpeftive property.
It is allowed, likewife, to feparate two infimt flaves related to each ^^^ » the
other, if with a view to fulfil an incumbent duty, as where one of the JTbdiS^ni^
two commits a crime, and is ^v«n up, as a compenfation for fuch ^^^2t^
crime, to the avenger of the o^ce. In the fame manner, alfb, one iiuvoidabk
of the two may be fold, for the payment of a debt incurred by him ^^^^^*
in the courfe of purchafe and iale, in confequence of his being a pri-
vileged flave,--or, by the defhruftion of the property of another, — i^
either of which cafes that (lave may be fold alone, in difchargc of the
debt, although this mduce a leparation. — So alfo, it is lawful to return
one of the two to the (eller of them, in cafe he (hould prove defcAive.
The adjudication^ in all thefe cafes, proceeds on this principle, that
the objeft of the prophet in this prohibition was to prevent an injury
to the infants without detriment to the frofrietori an object which,
if the prohibition were extended to thefe cafes, muft neceflarily be
dcfeated.-^It is to be obferved, however, that if a perfon feparate m^ buefodiiUi
mfant from nnotber^ or an infant from an adult ^ hy filling one of them, kOtiSL**
fuch (ale is valid : yet (HU the a& d[fiparation is atominaib. It is re-
corded, from JSoo Too/of^ ihat a iale of this nature is invalid only
where the relatbn of paternity (fuch as motier and fin. for inftance)
cxifts between the parties; but thAt in all other cafes it is valid.
5 Another
464 SALE. Book XVI.
Another reportt from j1bo9 Toofrf^ mettfions that Tales of this nature
are invalid in all cafes whore the feparatm is abominable, becaufe of
the tradition already mentioned with refpeA to Ahe\ for the prophet
fdfithefy tnjwied him to take back the (lave he had fold, whence it
may be inferred that he confidered the (ale as invalid, fnice a return of
the commodity is not admitted but in an invalid lale. The rea(bning
xAHane^A znd Ma&amme J is that, in the cafe in queftion, thefalc is
traniafted by a competent perfbn, and with rerpeft to a fit fubje£fc : it
is therefore vaKd; and the abomination does not apply to any thing
except what is merely a concomitant^ or immeSatc cffcH of the fale,
namely, the diilrefs occaiioncd to the two infants, which is a degree
of abomination exa£lly equivalent to that of a perfon purcbajing a thing
over the head of another, from whence no invalidity arifes. — ^More-
over, the order of the prophet to Alec to take back the flave muft be
conftrued either into a diffolution of the £ile, or a repurchafe of the
llave from the perfon to whom he had fold him.
wldbfrlbm. It is not abominable to feparate two flaves that zvc adults^ not-
mi^&^ withftanding they be related within the prohibited degrees; for this
^^^'^^ cafe falls not under the ordinance before mentioned; and there is
an authentic tradition of the prophet having occafioncd a fcparation
between Maria and Sirecn^ two female flaves that were fitters.
CHAP.
CHAP-VIt S A L £• 465"
C H A P. VI.
Of Akdla, or the Dijfolution of Sales.
Akal A literally fignifies to cancel — In the languas^ of the law it Definition of
mtxci%^^ cancelling wdiffoluttondizf ok. ^^^*
The diflblution of a fak is lawful^ provided it be for an equivalent a faie ma/
to the original pricc» becaufe the prof^et has faid " wbofomer makes ^ ^^^^^
*< an Ak Al A vfitb we who bos repented of bis bargain^ Jhall receive an ation of an
** AkAla cfbisftns from God, on tbe day of judgtmnt^r^wA alfo, Se""?&' "*
becaufe, as the contract of fale comprehends the rights of both parties,
namely, the buyer and the feller^ they have therefore the power of
diiiblving fuch coatrad, to anfwer their own purpofes.— If, however, t^ „^ ^^
either a greater or lefs fum than the original price be (lipulated as the ^l <^(ng
condition of the diflblution, fuch condition is null, and the diflblution *''**'"'^'*^*
holds good ; and the fcUer mud return to the purchaser a fum equal
to the original price. — It is a rule with Haneefa^ that zdljjolution is a
breakipig offoftlic coutraA with rcfped to both the parties, but a fale
de norjo with refpcft to others. If, therefore, the breaking off be im-
pradicablc, the diflblution is null. — According to Aboo Toofaf^ on the
other hand, it is. a fale de novo: but if a new fale fliould from any
caufe be iniprdflicable, then it mufl be confidercd as a breaking off:
and in cafe of that alfo being impra£(icablc, the diflblution then be-
comes null.— The opinion oiMobammtd is that it is a breaking off\
nnd in failure of this, from impradicability, a fale de novo; and in
cafe of that alfo being imprafticablc, it is null — ^The argument of
Mohammed \s that Mala^ in its literal {cixCc^ fignilics djffolution; and,
in its conflru&ive fcnfe, fedei (whence it is a fale di novo with relation
Vol, II. Ooo to
466 SAL E. BooKXVr.
to all others than the parties:) it is therefore regarded -as a dijfolution
or breaking off^ agreeably to the literal meaning of the term; or, if
the breaking effht imprafticable, it is regarded as ^fale^ agreeably to
the cmJlruRive meaning. — ^The argument oi Abw Yeofafi^ that Akila
means an exchange of freferty fwr property with the mutual confent of
tbe parties f which correiponds with the definition offale, and is alfo
fubjeft to the fame rules ; whence it is that, in cafe of the lofs of the
wares in the pofleflion of the purchafer after the conclufion of the
Mttla^ or eEj^utiMf it [thtjfJUla] b null ;. and alfo, that the feller
is allowed to return the wares to the purchafer in cafe of theirhaving
been blemiflied or become defe&ive whilft in the hands of the pur-
chafer ;, and. that the right of £&;^ is alfo elbblifhed by it.'^Hanetfaf
on the other hand> argues that ^id/» means a diff$lution^ or breaking
off^ and cannot, by any conftruaion of it,, be fuppofed to mean/i/^,
although the breaking off ihould be impraOicable;. becaufe fak and
fiffiktvm are teems of oppofite import, which no we word can be
fuppofed to bear:«^ift thaieforctthe breaking cffht impra£ticable, the
Jlkila is null* With regard to its being a Jkle de ncv9^ in relation to
others, this is a mere matter of necefftty j as to tbem it exhibits fimilar
effeds with fale ; that is to fay, the feller, in virtue of the Mdla^
becomes again proprietor of the wares; and it is accordingly a y^/r
with refpe£fc to.all others than the fcller and purchafer, for /^at reafon,
and not becaufe of the meaning of the word, which in reality is the
^^^^/rof fale.—Such are the opinions and arguments of our three
dof^ors with regard* to ufMa.— Hence it appears that if a flipuhtion
be made, that the feller fhall retum to the purchafer a {\xm greater
than the original* price» the J^olution^ agreeably to the tenets of i/a-
neffuf would hold good to the amount of the original priee; becaufe
(according to hit tenets) Ak^ is t £ffoluiion ; and a diflblution can*
aot ppffibly rektelo the excefs, as there is no fale which mij^t be
oppofed to fuch excefs; and it is impofHble to diflblve what d6es not
exift:— -therM^/Mi, thteeforc, is invalid, but not the diflblution, u
that is not rendered null by invdving an invalid condition.-— It is other-
5 wife
Chap.VL sale. 467
yfifc with TcCptSt to Jikf — (that iS| the fale of ime oirm for two
BiRMs^ for inftance,)— ^for if a pcrfon ihould fell one Jirm for two
Jirms^ fuch fale would be invalid; nor could it be conftrued as ex-
ifting with refpeft to one dimh and as null with refpeft to the addi-
tional one, fb as to render fuch fale lawful; becaufe the eftablifhment
of an cxcefs in fale is poflible, as that is an eftaUifliment of a nutter
as yd uneftablifliedy and it is no way difficult to efbblifli an irnefbt-
bli(hed p<Hot; but if the excefs dirm were efbUifhed, it would induce
i^kry: — a fale of this nature, therefore, is invalid* — The conclufion
therefore is, that the diilblution in queftion is valid, but the condi-
tion is otherwife. The law is alfo the fame where a flipulation of a
Jinalltr amount than the original price is made; that is to (ay, the
diflblution holds good, but the condition is void ; becaufe, the fale
being edabllfhed with regard to the original price, and the deficiency
not then exiAing, it follows that the diflbiution can apply only to
what does exift,— -namely, the original price, — fince it is impoflible to
diflblve what does not exift. — If, however, this deficiency be fttpu-
lated on account of a defeat which had taken place in the wares, it
is lawful. — In the opinion of the two difciples, the ftlpulation of a
fum exceeding the original price, in a diflblution, amounts to a fakz
— according to Abw Too/of^ becaufe (as has been already explained) he
confidcrs jikala as zfale\ — and alfb according to Mohammed^ becaufe,
although he be of opinion that a dtjfolution is a breaking off^ yet he has
faid that, iii cafe of the impracticability of a breaking off^ it mufl be
confidercd as zfale \ and as the diflblution in queflion is of that nature,
he is therefore of opinion it is ayiAr.— With refjied: to a diflblution in
which is ftipulatcd an amount lefs than the original price, Abao Too/of
(proceeding on his general opinion concerning dtflblutions,) confiders
it zszfak: but in the opinion of Mohammed it is a difoluthn with
rc{pc£t to the whole of the original price; becaufe he confiders the
deficiency to be a ftlence maintained with rcfpeft to a part of the
price ; and as the diflblution would have been valid if a filence had
been maintained with refpedt to the wbole^ fo it is in a fuperior degree
O o o 2 valid
468 ^ SALE. Book XVI.
valid when the filence is maintained only with refpeft to a part. A
diilblution, (lipulating a fmaller fum than the original price» in a cafe
where the wares have been blemifhed in tlie hands of the purchafer,
is confidered by Mobammedz&z diflfolution ; the dejicitncy being op-
posed to the blemjh.
piflbltttwn, Ip a diflblution be agreed upon, flipulating, in lieu of the original
tion of an price, an equivalent of a different kind, it is a breaking off*, accord-
r^«^/ *"g ^^ Haneefa^ for the original price ; and the ftipulation of a differ-
Wfi«' fi: ^"^ ^^^ ^ nugatory. The two difciples confider this diflblution as
ay^/r, founding their opinion on their ideas of the nature of difl^u-
tions, as already explained.
2Lfc fla^^* If a diflblution of fale take place with refpeft to a female flavc
cmiocbctQ. who had borne a child whilft in the pofleflion of the purchaler, it is
SSLlSie ^^^^ according to Haneefa^ bccaufe (agreeably to his tenets) a diffo-
• child. i^fiof^ is ^ breaking off% and the birth of the child is preventive of a
diflblution, as this is a fupervenient addition of a feparate thing; and
fuch addition, after feizin, prevents a diflblution of the bar^dn.—
This diflblution, however, is confidered as ^falc by the two difciples.
Afilenttjbe The diflolution of a (aleprcvious to taking pofleflion of thearticlc
vkMif n> Se!' fold, whether of a mmeablc or immveabk defcription, is a breaking
jySofdL £^> according to Uanafa. According to Aboo Taofaf it is a breaks
trtide. i^g £^ with regard to moveable property only, becaufe a fale of move-
able property, previous to uking pofleflion of it, is not lawful, and
hence a diflblution with refpeft to moveable property, previous to the
feizin of it, caimot be confiderid as a fale^ and is confequently a
breaking of. A diflblution with refped to immaveab/e property, on
the contrary, previous to the uking pofleflion of it, is z/ale^ (accord-
• And confequeody va&d, as il coo^ilctcly anoub the contraft.
4 »^S
CriAP-VII. SALE. 469
ing to Ahoo Toofaf^) as he holds that the falc of immoveable property,
previous to the feiziii of it. Is lawful.
The lofs or deftrudkion of l\it wares is a bar to the legality of a
diilblutiont but not the dcftruftion of the/r/rr; bccaufe a ^/ir//M
is the breaking off of fale\ and the breaking off of a fale reds upon
the exifteace of the £Je ; and this again relates to the nxiares not to
the/r/cr.
Ik cafes (^ MookSyeza^ or a (ale of goods for goods*, a diflblution Bmrtirmvfh^
agreed upon after the deftru£lion of one of the two fubje&s is vaUd ; ler a deiimc-
becaufe each of them falls under the defcriptioa of the fubjeft of the SfbbjSaif
fale; and applying this term, therefore, to the one that remains, it
follows that the diflblutbn is lawful, becaufe of the exigence of the
fubjeaofthefale.
CHAP. VII.
Of Moordbihat^ and Tawleeat, that is. Sales of Profit and
of Friend/hip-^.
MoorAbihat, or zfale of profit^ means the fale of any thing for the Definiilcm of
price at which it was before purchafed by the ieU^r, with the fupcr- ^••rMkkt
addition
• That is, jtfrf^r;— the term by which M$ckayixa will be hereafter always expreflcd.
t MMriUhal and Tawkeat are technical tenns, which (like many others in this work}
do not admit ofa literal tranflauon* Neither is the definitioa of them, as here given (ac«>
cording to the Ptrfi^n verfion of the Hiiijf^) completely fiiiisfaaory. In the ArMc
copy,
470 SALE. Book XVI.
additioa of a particular fum by way of profit. Tawkeatf or zfrundfy
falc, is where one pcrfon icUs any thing to another for the exaft
price which he himfelf paid for it. Both thefe modes of fale are law-
ful; becaufe the conditions eflential to the validity of a fale exift in
themj; and alfo, becaufe mankind ftand in need of them. For
example, a man who has himielf no ikill in making purchaies is ne*
ceifitated to confide in a purdafe from a perfon (killed in fuch mat-
ters; in other words, he will purchafe the article from this perfon at
the faroe rate at which be had purchafed it, without allowing him
any profit upon it, as in a cafe of TawUcai^ or friendly ^c^ — or, he
will purchafe it from him, at the fame rate at which be had purchafed
it, allowing him an addition* by way of profit, as in a cafe 0t Moord^
hihat^ ov profitable fale: and this will leave him fatisfied and at ea(e
in his mind ; fince a pcribn di^itute of Ikill is by either of the(e modes
fecurcd from fraud, whereas, following any other mode, he would be
expofed to great impofture. Mankind, therefore, having occafion for
both thefe modes, they are both permitted: — and as, in both in«
ftances, the purchafer is under a necefiity of placing an ab(blute con-
fidence in the word of the feller, who is (killed in the bufinefs of
traffic, it is therefore incumbent on the feller to be jufl and true to his
word, and to abflain from fraud, or from the femblance of fraud*
Fraud i%yi\ittc a perfon avers that he had purchafed a certain thing
for twelve dirms^ when, ia fad, he had only paid ten dirms ; and the
femblance of fraud is where a perfon fells any thing by a profitable fale,
•
cop7i 1 MttrUibat it defined to mean ^a trantfir^ wuJk 9j thi fnfnuwy under the erlfi''
^ nal eentroQ^ at the m^inatfrke^ with the MeUitieM tfa ^r^i,*'— and Tenduat ^ « tr^mf-
^fer^h '*' frefrieter^ under the §rtgiual eeHtrsa^ at the erS^mal frice^ witheut am ^ddi-
^' tien ^ prefit.'' Hence it would appear chat^ in a cafe of MeerMhut, the contraA
[of MetrMbut] refers itfelf merely to the frefit agreed f§r^ and not (as in other (ales) to
the wMr friee t§ he paid^ fince that (exdufiire of the/r^ alone) is dctermimcd by the
M«/irrr of the contiaai without fpecific^oo; andjdut, m a cafe dtTawleent^ on the other
hand, tfaeconcnia[ofrtfiiiilrr4nr]reib«itfeir to ^original price, fioce thatis fixed at
^ prime ij/lf from the nature ofthe;congaft»
Aipulating
CHAr.VII. SALE. 47^
ftipulating prompt payment, whenv in reality, he had himfelf pur*
chafed the fame thing on credii.
Profitable and friendly fales are lawful only where the ^itY They require
of the wares is of the defcription olijimlhn^ fuch as dirms and deentars^ confiaof/w-
for inftance; becaufe, if the price iHpulated be an article of which the o'r^iVoiher.
unities are not ii'milar, (fuch as a^m;^, for example,) it follows' that ^Jfo^^V**
the purchafer becomes proprietor of the wares for a price of which enteri into
the value is unknown, a circumftancc which induces illegality in a 10011*^11 .
fale- If, however, the purchafer ♦ Ihould, in the meantime, have JouGhi^^
acquired pofleflion of the price, (as if, for inflance, the price be a obtained pof-
Jlceot^ and that identical (lave be then the property of the purchafer) in price in the
fuch cafe a fale o( fricndjhip is lawful ; and alfo a fale of profit,— pro- Se*^")^^
vided the profit be ftipulatcd in money, or in articles efUmable by ^^^ (^
weight, or meafurement of capacity, which are de(cribcd and a{cer« monejorfpe^
tiuned ; — ^becaufc the purchafer is in this cafe enabled to make delivery o/wd^t*or
of the thing which he has rendered obligatory on himfelf. It is not »?*f««»w
lawful, in a fale of this nature, to (lipulate a profit proportionate to and mod bl
part of the price, (fuch as a profit of one dirm upon ten, two upon fiipnltted
twenty, and fo forth ;) becaufe the particular value of the price [the w^e mIc^
flave] not being afccrtaincd, this could not be carried into praAice: — *2^
it is necel&ry, therefore, to ftipulate a general profit upon the whole ^oi^iJSf
price. -ppntepirtt.
It is lawful for the feller -j-, in a profitable or friendly file, to add ^ interfea-
to the capital fum J the wages of the bleacher, the dyer, or the w£?^^
• Meaning the peribn who enters into the Tawletut or AfMriiiA«f agreeneat inth the
firft purchafer.
t Meaning the party who firft purchafed the artklci and then agrees to transfb' it bj
Tmukiot or a Mt$riKUii (The terms ftlUr and furd»€ffir are thus to be iinderibod
throughout this fedion.)
X Arab. Ris Mai: meaning (In this place) die prune coft or oricnal price of die
artick.
figorer
47^ SALE. Book XVI.
Ki*"of thelrl figurer (of cloths,) the (pinner (of cotton or v^ool,) or the porter (of
lick nxAybc whcat^ and fo forth ;)*~becaufc it is a cuftom amongft merchants to
prune cott. ^ ^^^ (uch cxpences to the capital fum ; and alfb, becaufe whatever is
the caufeof an increafe either to th^/ubftance of the thing purchafed»
or to the value of it^ is an addition to the capital: — this, moreover, is
a general rule, applying to all the articles here mentioned ; for the
dying^ifguring^ ox fpimting is an increafe to ^^fubjlancc of the article;
and the bieachiag of linen, or the porterage of wheats and fo forth, is
an increafe to their value, becaufe cloths are rendered more valuable
by being bleached, and the price of wheat varies in different places.
It is requifite that the fdler, in making or including fuch additbn,
fliould fay " this article has coft mc/o mucb^^ and not ** I have pur-
^* chafed this at fuch .a rate,** becaule the latter aiTertion would be
falfe. It is to be obfcrved that the driving of goats from city to city
is equivalent to the porterage of wheat ; but neither the wages of the
fhepherd, nor the rent of the Jioufc in which the wares are kept, is
to be included, as no increafe with refpcA either to thefubfiance or
the Vtf/»r arifes from thefe circumftances : — neither are the wages of
a teacher of the Koran, or the like, to be included*, becaufe the
increafe of value obtained by inJiruQion is acquired through the
wifdom and ability naturally exifting in the fcholar, which loft is the
immediate caufe of an increafe of value : — the charge, therefore, muft
be placed to the head of the wifJom^ or natural ability^ which is the
immediate caufe, and not to the teachings which is a remote cau(e.
l^?5ate-*'' If, in a fale of profit, the purchafer (hould difcover that the feller
mcnicfihc had praclifed a fraud in ftatingthe price of the wares, in fuch cafe,
chl^r^My" accordbig to Haneefa^ the purchafer is at liberty either to adhere to
JafnV*^ ^* ^^^^^^ ^^ ^^ ^»^do ^^^ bargain, as he pleafes ; and in cafe fuch fraud
or (in r-w. Ihould be praaifcd in a fale offriatJJbif, the purchafer is at liberty to
iTLSsf ^^"^^ ^^c amount of the fraud from the price. Aboo Toofafvi of
♦ In tbc&Icofi/ro^.
•>piniofi
CHAP.Vn. S A L E. 473
opinion that a deduflion proportionate to the fraud mud be made in
cither cafe; but that, in the fale of Jrrcfu^ip the deduAion is made
from the f nee; and in a (ale of pro/it^ from both the price znd the
profit. Mobamned maintains that in both cafes the purchafer has the
option of adhering to or relinquiihin^ the contrail as he pleafes : — for
he argues that the mention of the price is to be regarded, as that is
known ; and the mention of friend/hip ox profit^ is made with a view
to incite delire, and is therefore to be confidered as the inducement^ in
the fame manner as the inducenient of (ecurity againft a blemifli or
defedl; and coniequently, if the inducement fail, the purchafer is at
liberty with refpeft to the contratt. The argument of Aim Tfiofaf
is that, in cafes where friendfliip or profit are mentioned, it is an efien-
tial that friendfhip or profit be eflablilhed: — whence it is that the
fale in queftion is concludedt if the feller fay to the purchafer, ** I
*< have fold this thing to you, by way of friendfliip, for its original
" price^^^'-^v^ " I have fold this thing to you for a profit on its ori*
^^ ginal price,** provided its original price ia both cafes be known
and afcertained. Now, fuch bdng the cafe, it neceflaiily follows
that a deduction mull be made in proportion to the fraud of the pur^
chafer, in order that fawleeat or Moordbibat may be eftabliflied:«-^ a
cafe of Tawleeat the dedudion is made from the price ; and in a cafe
of Moordbibat from the price and the profit. The argument of £Ki-
neefa is that if, in a fale of friendfhip, no deduftion be made for a
fraud, the defcription of Tawleeat no longer appertains to it, fince the
price, in fuch a cafe, mail otherwife exceed the original price, and
confequently the tranfa£lion, wnich is fuppofed it tranfa£tion of Jriend^
Jhip9 would be altered in its nature: a dedu&bn is therefore ad-
judged : — ^if, on the other hand, no deduction were made in zprofit^
able fale, yet the fale would ftill retain its original nature of a pro^
f tabic fAt^ with the diflference only of the extent of it; forMrhich
reafon the purchafer is at liberty to abide by 6r undo the contraft as
he pleafes. Hence if, in a profitable fale, after the purchafer had
become acqusttnted with the fraud, the wares Ihould be lofb or de-
VoL. IL P P P ftioycd
4H SALE. BookXVI:
{Iroyed in his poflcffion, — or, if they (hould have contracted ibrac
blcmifli preventive of a diffolution of the falc, the purchafcr is refpon-
fible, according to all the moft authentic traditions, for the whole price,
— fince in fuch a cafe no proportion whatever of the original price is
oppoied to the option of the purchafcr, fp that be might dedudt fuch
proportion, becaufe of the deftrudtion of his option ; — as holds in
cafes of option of infpeAion or condition of option. It is otherwiie
in cafes of option of defetl ; for there the claim which the purcha(er
has on the feller relates to a lofs with refpeft to the wares, arifing
from a defed ; and a dedudion is accordingly made from the price
on account of fuch lofs, provided it be not in the power of the (eller
in any other way to repair fuch lofs ariling from defeft.
A profit by t If a pcHon purchafe ckth (for infbuKc,) and afterwards difpofe of
fai^ln'notbc it to another by Moorabifjot^ and then repurchafc it, from that other
la'Sotofj'' ^^ ^^^ P"" ^^^ which he had originally purchafed it, in that cafe, if
fiuDc trude. he fliould again wi(h to (ell it by MaorSiAat^ it is neccilary that he
dedud from the price fixed in the lafi fale (calculating that at the
rate of price in the frfi falc,) the fums of the profit he acquired in
the intermediate &le : — ^but if after fuch.dedu£tion nothing remain,
he is not allowed to fell it by Moordbihat. This is according to i£?*
ncefa. The two difciples maintain that it is lawful for him to fell it
with an addition of profit grounded on the laft fale. To exemplify
this cafe: — fuppofe that a perfon purchafes cloth at ten dirms^ after-
wards fells it to another for fifteen dinns^ and aga'ui purchafes it from
that other for ten £rmsi in this cafe, if he ihould wifh to refell it by
way o( profit^ he muft fix the price at five dinns^ being what in reality
the cloth has cod him, and what he ought therefore to found a profit
upon : — fuppofe, on the other hand, that a pcrfbn purchafes a piece
of cloth for ten dimUj^ and having fold it to another for twenty £nns%
afterwards repurchales it from that other for the original price,
namely ten dirmsi in this cafe he is not entitled to fell it again with
aa addition of profit. The two difciples maintain that he is in both
cafes
Chap. VII. SALE. 475
cafes entitled to fell it for a "profit on the hft price; namely tea
dinns\ and thdr reafons are, that the repurchafe is a new coniraQ^
and has no connexion with the effects of lYic former fale; and that
therefore a profit may be impofed, founded on thcJcconJ contraft; in
the fame manner as if the fecond purchafcr (hould fell it to a t&ird
purchaier, and the firft purchafer repurchafe it from the third one,
in which cafe it would be lawful for the firfl purchafer to fell it at a
profit on the lafi price, and (b alfo in the cafe in queftion. The argu-
ment of Hamefa is, that in the cafe in queftion, there is an appre-
henfion of x}xcfrji profit being obtained by means of the fecond con-
tra£t, fince until the perfon repurchafed the cloth there was a
poflibility that he might return it upon the feller's hands in confe-
quence of a defed, and that his [the feller*s] profit might thereby
have been loft, although upon his repurchafing it from the purchafer,
this poflibility' vaniflies, and the profit remains confirmed and efta-
bliihed. The apprehenfion, however, had exifted ; and in MoonU
blbat iales apprehenfion is regarded as equivalent to certainty, out of
caution ; (whence it is that a profit of this nature is not allowed upon
anything given in compofition; in other words, if a perfon be in-
debted to another to the amount of ten dirms for inftance, and he
compound the debt with bis creditor by a piece of cloth, it is not
lawful for the creditor to fell this cloth at a profit of this nature ovci
and above ten dirms^ becaufe in the compofition it is to be apprehended
that the value of the cloth w;is Jbort often iSrms^ as compofition is founded
upon ramjftm of a part.) — In the cafe in queftion, therefore, the
feller, becaufe of the apprehenfion above flated, appears, in confe-
quence of the fecond contra A, to have purchaied^^ Srtns^ together-
with the clothy iox ten dirms; he muft therefore dcdvA Jhe d/rmi
from the whole, and declare that " the cloth has fallen to him for
-•• five iffrmx;*' and take his 'profit upon tiofe fve. It is othcrwifc
where the fecond purchafer fells the cloth to a /iSir^ perfon, and the
firft feller then repurchales it from this perfon; for in this cafe the
acquifition of the firft profit is confirmed and eftablifhed by means of
P p p 2 the
ifcwtthhb
476 SALE. BookXVI.
the iecond purchafer's having fold it into the bands of another, and
not by means of the firft ieller repurcbafing it from the tbirJ peribn
ib as to leave any room for apprehenfion in this cafe alfo. There is
therefore a material difierence between this cafe, and the cn«b under
confideration, and confequently it is evident that the analogy adduced
by the two difciples is unfounded..
CM£tf£M9H If a privileged Have, involved in debt, Ihould purchafe a piece of
adcd bf a * doth for ten £mu^ and afterwards fell it to his mafter (or ff teen dimu^
and the mafter wiih to fell the iaid cloth in the manner ofMoordii^
6atf he.muft fet his profit upon ten £rms^. In the fame manner,, if
a mafter purchafe a piece of cloth for ten £rms^ and fell it to his pri-
vileged (lave for fifteen £rms^ the flave is not entitled to di(jpofe of it
at a profit upon moro than ten Jirtns.. The reafbn of this is thatj in
both cafes, there is zfemblance of illegality in the fale; becaufe the
property of the (lave being,, as it were^ the property of his mafter^
it appears that the mafter, in the firft cafe, purchafes hb own property ;
and that, in the iecond cafe, he fells hi$ own property to himfelf.
Ofe oTIKm* If a perfon give to another ten £mu^ in the way of Mth-
Idedbnwee^ zSriiat^ ftipulating that the profit acquired therefrom ftiall be equally
OM^nd divided between them,, and the Jlfw^/^ or manager fo conftituted,
ihefn/Ham'. purchafe with the (aid money a piece of cloth, and then fell it
to his conftituent for fifteen irrmx^.and the conftituent afterwards
wi(h to dilpofe of it by a profitable iale, he is not allowed to fix the
price at more than twelve and a half ^irmr. The reaibn of this is, that
although the purchafe made by the proprietor of a MoorMbat ftock
from his manager be, in fiift, the purchafing of his own property
with his own property, yet fuch purchafe is held to be lawful by our
dodors; becaufe the proprietor of the ftock has no power over it
whi^ft in the hands of the manager; and as this power, which is a
deitrableobjeft, refulted to him from the purchafe, the faid purchafe,
becaufe of its being the means of procuring to him an objed of defire,
is
Chap. VII. SALE. 477
is therefore lawful ; ncverthclcfs, as there is In thii cafe an appear-
ance of invalidity of fale, (fince the conftituent did as it were pur-
chafe his own property with his own property, by which means a
mutual exchange of refpeftivc property did not take place) the pur-
chafe is therefore reckoned null fo far as regards the half of the pro-
fit; and accordingly, in the cafe in qucAion, the profit mufl be
impofed upon twelve and a half ifinfts.
If a perfbn purchafe a female (lave, and fhe afterwards^ without Ar ^^^
any appearance of violence, but merely from a natural caufe, become ^Id of by
blind of an eye^—or if, being a womanly he cohabit with her, with- ^^^^1
out harm accruine, — ^it is in either cafe lawful for him to difpofe of feajusia.
her by Moordbibat^ without giving any explanation of either of thefc proceeding
circumftances ; for neither in confequence of the blindnefs or the co- ^J^ ^
habitation does any thing remain to him in oppofition to which a de- "r^i^y^^ ..
duftion might be made from the price; becaufe no part of the price the article' ia
is oppofcd to the quality of the article, (whence it is that if the qua- J'thS"'
lity be dcftroycd previous to fcizin by the purchafer, no dcduc- ju^w«'
tion from the price would on that account be allowed;) and in the
fame manner, no part of the price is oppofed to. the ufe of a woman's
perfon. It is reported, from Aboo Twfrf^ that in Uticfrft cafe the
flave mufl not be difpofed of in the manner of MoorSibat^ without
an explanation being given of the blindnefs^ any more than where
blindnefs has been occafioned by violence : and this opinion has been
adopted by Sbafeu-^At is to^be obfcrved, that if the purcbafer bimfelf )^^lj^^^^
had occafioned the blindnefs, or If it had been occafioned by another fioned b/^ or
from whom the purchafer either had or had not received an amerce- tSrtSic^felJer^
ment, he is not in either of thefe cafes entitled to difpofe of the flave by ]^^^'
Mooribibat^ without giving an explanation of the blindnefs; becaufe tioomuiibe
fluuic noA
the price.
^ Arab. Sayuha: in oppofition to a virgin. The realbn for reftridtng die cafe to
muUehritj^ in this i'nftance, is that cohabitation widi a vmm§m it not coofidered as a depre-
ciation of her vdue>-€onUarj to die cafe of deflowering a «jrx«»
here
478 SAL E. Boor XVI.
here the purchafer, (or another,) did with defigii or intciitioa deftroy
the eye; and it is coiircqueiitly requifite that a proportionable deduc-
tion be made for a defed fo occafioiied. The .£une rule alio obtains
where a purchafer has cohabitation with a female, flave who is. a
virgin ; becaufe virginity^ being merely a tcftder manbrane^ is a confti-
tuent part of the flave, and tliis the purchafer has deftroyed.
i^'d^mTscd ^^ ^^^^^ which a perfon had pnrchafed be burnt by fire, or daaiaged
by an kcci- \yy vermin, in that cafe it is lawful for the purchafer todilpofe of it by
ccedingfrom Mooribibat witliout explaining either of thefe circumftances: but if
t^'^t^ the cloth be torn in the folding and opening of it, it is not lawful for the
1^^^ purchafer thus to difpofe of it without noticing the fame to the
^ ' * party, becaufe tlie damage, in thb cafe, is occafioned by his own
deed.
A miiUte« If a perfon, having purchafed zfiave (for inilance) for one thou-
frmfi pay ^ind £rms^ payable at a future period, fhould afterwards fell him for
er^AAmtd ^"^ thoufand dirms^ payaUe immediately t with a profit of one hundred
Daymen^ dtrms^ without noticing to the other the refpite of payment he him-
^w^ of Che ielf has obtained, — in that cafe the other, if he (hould afterwards dif-
S^So^^cto- ^^^ ^^ circumilance, is at liberty either to abide by or undo the
«in in a bargain at his option; becaufe the fufpenfion of the payment re-
^•fa^^ femUes an addition to the fubflance of the wares ; and hence it is a
cuftom amongft merchants, in grantmg a refpite of payment^ to in-
creafe the price of the merchandiie. Now a fmblmce^ in a fale by
profit, is deemed equivalent to rtaTsty ; and hence it follows that the
laid perfon did, as it were, purchafe two things for one thoufand
£rms^ namely, a flave and a fufpenfion of payment; and afterwards
fold only one of.thefe things by way of profit, grounded on the price
which he paid for both; a fraud from whidi.an abfUnence is parti-
cularly enjoined in cafes of McorSbibat : — the purchafer, therefore,
has an option of adhering to or und(ung the bargain as he pleafcs, as
in the option from defe& If!^ however, the purchafer fhouM deflroy
the
Chap.VII. sale. 479
the wares,, and then receive notice of the fraud which had been prac-
tifed upon him, he is not in fuch cafe entitled to make any deduftion
on tliat account from the price, becaufe no part of the price is in rea-
lity oppofed to the fufpeniion of payment.
If a perfbn, having purchafed zjlav^ (for inftance) for a thoufand w^fiUai^
£rms^ payable at a future period, (hould afterwards difpofe of him to ^^'
another, by a Tawiceatj for a thoufand Jirms ready money, without
intimating the refpite of payment, in that cafe the other, on dif-
coveiy of this circumftance, is at liberty either to abide by, or annul
the contrail, as he pleafes; becaufe an abftinence fron& a fraud of this
nature is equally enjoined in friendly as in profitabk fales.^~If, how-
ever, in this cafe, the purchafer, having deftroyed the fiave,. fhould
then become acquainted with the fufpenfion of payment that had been
granted to the feller, it is incumbent on him to make a prompt pay*
ment, according to the agreement ; nor is he entitled to make any
dedudion from the price on the fcore of fufpenfion of payment, as
before explained.— It is related, as an opinion oiAlm T^ifaf that the
purchaf<U' is in this cafe to pay the value to the feller, and to receive
from him the whole of the price; in the fame manner as holds (ac«
cording to him) in a cafe where a creditor, having received payment
of the debt due to him in a. bad fpecie,. difcovers this drcumftance
after having expended them ; — in which cafe he has a. right to return
to the debtor a fimilar number of the fpecie he had received, and to
demand firom.him.a like number of jfW Q>ecie.— Some have (aid that
an appraifement ought to be made of the value in the cafe di prompt
payment, and aUb.in the cafe of a Afiant payment ; and that the dif-
ference fhould be given by the feller to the purchafer. — ^AU that has
been here advanced proceeds on a fuppofition of the fufpenfion of the
payment lung included in the contract of iale; for if, without fuch
ftipulation, it fhould happen that the payment be made at zdiftant
period, (as is often the cafe amongfl merchants,) there fubfifls, in
iiich cafe, a difference of opinion upon this point, whether, under
thefe
48o SALE. Bock XVI.
thefe circumftanccs, in a fubfcquent fale of profit or oifrknijhip^ it
be incumbent upon him to make known this matter. — Somt have
faid that fuch notification is incumbent on him, lince an cftablifliecl
cuftom is equivalent to a condition.— Others, again, allege tliat he is
under no neceflity of giving fuch notification, linfcc it is evident that,
as no condition was ftipulated, the falc was therefore for prompt
payment.
Ina&leof If a perfon difpofe of a thing to another by a fale o^ fnenJ/hip^
«?2S te declaring that ** he fells it to him at the rate it had ftood him in,'* —
/peci£c<U 3|^j [he purchafer be not acquainted with that rate, the falc is invalid,
from the uncertainty with regard to the price: — if, however, the
feller ihould afterwards inform the purchafer of the rate, at the (ame
caddie par- meetingi the fale then becomes valid, but it flill remains in the op*
rijfrofqi^ tion of the purchafer to abide by or recede from the contract as he
S* iS?f P^^^» fi^^ '^^ acquicfcencc he bad before exprcfled was not fully
eftablifhed, from bis ignorance of the price, and after the knowledge
of it he has an option, in the iamc manner as in the cafe of an option
of inipe^on. The reafon cf the validity of this fale is that the in«
validity does not become firmly eilablifhed until the departure of the
parties from the meeting. — ^When, therefore, the purchafer, in the
meeting, is informed of the price, it becomes the fame as if a new
contraft bad taken place after the purchafer had acquired this know-
ledge; and it is for him to withhold his acquiefccnce until the end of
the meeting. — ^If, however, the parties ihould feparate, the invalidity
then becomes fixed ; nor can it be removed by any knowledge which
the purchafer may afterwards obtain of the amount of the price. —
Similar to this is the cafe where a perfon. fells cloth for the value
which is marked upon it, but of which the purchafer is ignorant;
for fuch fale is invalid, but may be rendered otherwife by the explana-
tion of the feller, before the breakbg up of the meeting.
SECTIOK.
Chap.VII. sale. 481
SECTION.
It U not lawful for a pcrfon to fell moveable property, which he Ai^ut^iepr^
may have purchafed, until he receive poflcffion of the fame; becaufe J^.^JS"^
the prophet has prohibited the fale of a thing prior to the (cizin of it on bc^w ««>»•
the part of the feller; and alfo, becaufe there is an unfairncfs in it,
fincc, if the merchandilc (hould be loft or deftroyed before the feizin,
the firft fale Becomes null, and the property reverts to the former
proprietor, in which cafe it muft neceflarily appear that the perfoa in
queftion has fold the property of another without his confent.
The fale of land*, previous to feizin, is lawful, according to hatimflmxf
Haneefa zxAAboo Toofrf. Mohammed maintains that it is unlawful; prenoosto
becaufe the traditional faying of the prophet before quoted is abfilute^ Mt"^?*
and not particularly confined to mweabk property; and aUb, becaufe chafer,
of its analogy to mmeabU property. Beudes, ihtfale of land is fimilar
to the hire of it ; in other words, as it is unlawful to kt land before
feizin, fo is it likewife to fell land before feizin. The reafoning of
the two difciples is that, in the cafe in queftion, the fale is effected by
competei\!t parties with refpedk to a fit fubjcft; — that there is noun-
fairnefs in it, fince the deftrudlion of ground \z rare, whereas that of
moveable property is probable i — and that the prohibition of the pro-
phet is founded on the poffibility of the unfairuefs already explabed,
which does not exift in the^ cafe of land^ the deftniftion of it being
rare. — Some have afferted that a leafe of land before fdzin^, as ad-
duced by Mobmnmedy is lawful in the opinion of the two difciples.—
Admitting, however, that it were unlawful according to all our doc-
• Arab. Akkar\ meaning any fpecies of immoveable property. Zlmtn is the teni
u£»l in the Pirjk verfion, whoiGc the tranflator renders it kmi.
Vol. IL tow
48a SALE. Book XVL
tors, it proceeds evideatly on this principle, that a leafe is made with
a view to the produce, the deftruftion of which not being uncommon,
the unfaime& already explained (with refpeft to the fale of moveable
property before feizin) may confequently take place in it. This,
however, cannot happen with refpeft to the fale of grounJ^ the dc-
ftru£tion of which is rare, and confequently the one cafe is not analo-
gous to the other.
In the rc-fik h a perfon puichafe articles eftimable by a meafure of capacity,
^^^^ fuch as wieat^^t articles of wdght, fuch as butter ^^zs if hefhould
mafiurcnient {^y <i j \^^^ purdiafed this wheat, on condition of its bebg equal to
hisrequifite " tcn bufliels,"— OT ** this butter, on condition of its weighing ten
mtfiirj,**— -«id if, having meafured or weired thefe articles accordingly,
he (hould then take them and fell them to another, on the £ime con-
^B by tke dition of meafure or wdght, in that ca(e it is not lawful for that other
cha&r.'^ to icU or uie thefe articles, until he has meafured or weighed them on
his own account; becaufe the prophet has prohibited the* fale of wheat
until it be meafured both by the buyer and the feller; ^d alfo, be-
caufe there is a poffibility of thefe. articles exceeding the warranted
quantity ; in which cafe the excefs, as being the property o£xhe /e/fer^
would nc^ be lawful to the purchafer ; and an abftmence in the cafe of
thj^ pofliUlity is neceflary.— It is otberwife where the fide is made by
ctmjtiiure^ without any condition of meafiirement ; for the ex*
cefs, in that cafe, b the right of the purchafer; and h is alfb
otberwife in the fide of cloth by yards, for there likewife the
excefs is the right of the purchafer; fince yards (as has been
already explained) are a defaiftkn of the cloth, and not a fuanthy^
as in the cafe of articleaof weight or meafure of eapacity. — ^It is to be
obferyed that the meafurement of the dofh by the feller, previous to
the fale, is not valid, although it fhould have been dene in the pre-
fence of the purchafer, becaufe the meafurement of both Hdt feller and
^chafer is required, and thefe terms are not applicable to the parties
iIMil after the fide takes place. So alfb, the meafurement made by
5 the
Chap. VII. SALE. 483
the feller ifter the fale is invalid, unlefs it be in the frefence of the
purchafer, becaufe the objedl of meafurement is delivery, and de«
livery without the prefence of the purchafer is impra^cable.
If the fitter only ihould meafure the merchandife after the ^e, 'c fuffices,
in prefence of the purchafer, a queftion has arifen, whether this be theardciebe
fuffident?— or, whether it be not neceflary that the purchafer fliould jSuSlly
alio examine it by his own meafure? — Some have (aid that the mea- ^« ^w^* «
furementof it by the feller only, is not fufficient,'according to the ctufo'Vpre.
plain fehfe of the tradition already quoted. The more approved doc- ^"^'
trine, however, is that it is fufficient, fmce by the meafurement of
the feller the quantity is afcatained, and delivery completely efta-
bliflied. The tradition before quoted alludes to the jun£lion of two
contrads; as where, for inftance, a peribn having purchafed, mea-
fured, and taken pofleilion of a thing, afterwards fell it to another;
in which caie it is neceflary that the iecond purchafer himfelf mea-
fure it ; and the meafurement of the firft purchafer, who fbnds in the
relation of feller to him, is not fufficient, as v^U hereafter be more
fully explained in the chapter cSSilhm fales.
It is related as an opinion of the two difciples, that articles oitale b tke lerfib
are analogous to thofe of bmgltu£nd meafurement ; that is, if a perfbn, Qjeor longi.
having purchafed and received* article of this nature on condition of jwfi««i««-
their amounting to a particular number, ihould afterwards felt them tdiing or
to another on the fame condition, there is, in that cafe, no obligation ^^^^
on that other ta enumerate them on his own account, becaufe fuch purchafo' is
articles are not fufceptibleof ufury.«— It b related, alfo, as an opinion "*^'^^'" ^"
of Haneefa^ that articles of tale are fimihr to thqfe of weight, becaufe
in regard to them the receipt of any exoefs bqf ond the flipulated num*
ber is unlawful to die purchafer : articles of tak arethereforeanidogbua
to articles ofufcigbt.
484
SALE.
Book XVL
ouc hiving
taJcea poi-
Icffloa ofiu
A feller may Ahy dccds of the fellcf With regard to the price of .the merchaa-
pdw^ofhiif* ^^'^9 prior to the aftual receipt of it, fuch zsgi/tj fa/cj bire^ or be*
5**ff*_^>«|»- quefl^ is lawful, whether the price be flipulated ia money or. goods i —
becaufe the f^/(/? of legality, namely, right of property^ is ellabliflied
in the feller; zxA the aft is attended witli no unfairnefs,. (fuch ashds
been (hewn to exift in the cafe of felling moveable property prior to
the receipt of it,) becaufe the price, if expreiled in dirms and deemurs^
is indetermtnatjC, and is therefore incapable of being deftroyed; and if
it confift of any thing elfc, ftill the fale is not invalidated by a deftruc-
tion, fince the value remains due from the fetter. — It is otherwife
with refpe£l to the article purchafed, as the fale of that before receipt
oif it induces fraud, as was before explained.
Thcpardes
are at liberqr
to make any
fubfequent
tdaitiooor
witkrefpca
either to the
/•Mdrorthe
fnu%
aodiochaiL*
ditionora-
bateneatare
wcoipoeaieQ
10. the 000-
tnd.
It is lawful for the purchafcr to make an increafe of the price in
favour of the feller ; and for the feller to make an increale in the
merchandife in favour of the purchafcr; — ^and it is alfb lawful for the
fdler to make abatement from the price in favour of the purchafcr;
and this increafe or abatement is incorporated in the original contrad*;
(that is to fay^ in caft of an increafe, the original and additional form
of the price/or the article; and in cafe Of an abatement, what remains
after the deduction is the price of the article.) Hence, in thtfrfl
cafe, the feller poflTefTes a right to the original price, together with
the increafe fuperadded to it; and, in tht Jecond Qz(t^. the purchafei
has a right to the original merchandife with the increafe fupperadded.
Sbi^et and Ziffer are both of opinion that fuch increafe is. a mere ad
oi favour t and therefore cannot be incorporated in the original fale;
foV, if fo, it mufl neceflarily follow that a perfon gives his own pro-
perty in exchange for his own property, fince, previous to the increafe
of the price, the article was the property of the purchafcr in exchange
for the ori^nal price; and, confequently, if the increafe be made in
the price, the property of the purchafcr is given in exchange for what
was before his property: in the fame manner, alfb, in the^^rM^ cafe,
as the price, previous to the increafe, was the property of the feller,
6 it
Chap. VII. SALE. 485
it follows that in increafing the wares, he gives his own properly in
exchange for his own property.— Neither can an abatetnent from the
price, by the fdler, be incorporated with the original contract ; but
it muft rather be confidercd as an aA oi favour ; becauie, prior to the
abatement, an exchange of the merchandife for the whole of the price
had taken place; and it is impoflible to fet afide any part of the price,
fince in fuch cafe it mud follow that a part of the merchandife
had no correfpondent exchange oppofcd to it ; and this is un-
lawful.
Objection. — This confequcnce docs not follow; becauie the re-
maining fum, after the dedu&ion of the abatement, is conlidered as an
exchange for the whole of the merchandife.
Reply. — It is impoffible to coniider the remainder as an exchange
for the wbole^ becauie no new contrad has taken place with regard to
the dtminijhed price, and the old contract relates only to the full
price.
— ^The rcafoning of our doftors is, that the buyer and fdlcr, by
means of the increafe and abatement, do only alter the contraft from
one lawful accident to another lawful accident ; and that, as the parties
poiTefs the power of annullmg the contrad, they are, if^/^r/isr/, en-
titled to make an alteration in the non-eifential properties of it. The
cafe is therefore the fame as if the parties ih'ould annul an optional
power, or ftipulate one after the conclufion of the contra£l. — Now,
fince it is lawful for the parties to alter the accident of the contrail by
means of increafe or abatement, it follows that fuch increafe or abate-
ment is incorporated with the original contraft; becaufe the accident
of a thing adheres to that thing, and docs not exifl abflraftcdly of itfclf.
It is otlierwife where a feller abates the whole price ; for fuch abate-
ment could not be incorporated with the original contrafl, fince in
that cafe a change would take place in regard to w*hat is an ejfential
froperiy^ and not zxtacddent of the contradl. — It is alio to be obferved,
that from the increafe and abatement being incorporated with the
original contrad, it does not neceflarily follow that a perfon gives his
own
48^ SALE- Book XVI.
own property in exchange for his own property, becaufe the original
contraft does as it were relate to fuch increafe or abatement. — ^Thc
advantage of the incorporation of the increaie and the abatement in
the original contrail is evident, in a cafe oi friendly ox profitable iaie;
for if a perfon fell fbmething by a profitable fale to a purchafer who
increafes the price in the feller's favour, in that cafe it is lawful for
' him [the feller] to charge his profit on the original and the increafe
united; as, in aStoi^n abatement^ on the other hand, his profit mufl
be charged on the refidue after the deduftion.*— The advantage arifing
from this is alfb evident in a cafe oiSbaffa\ for the perfon pofTeffing
the right ofSbaffa is entitled to the fubjeA of the fide, in cafe of an
abatement in exchange for the diminifhed price.
Objection.-— Since the abatement and increafe are incorporated
with the original contrafit, it would follow that, in a cafe d increafe^
the perfon poflefling the right oi Sbaffa is to take the fubjeft of the
iale at the aggregate amounc of the original price, and its increafe,—
infkad of taking it (as is the cafe) at the original price only,
Rbpl Y. — In cafe of an increafe of the price, the proprietor of the
nf^ of Sbaffa t^kes the fubjed of the &le at the oripnal price
only, faecauie his right relates to the original price, and it is not
in the power of the buyer and feller, by any ad of their*s, to annul
ftich right.
Tiiepriee Akt increafe of the price, after the deftrudion of the wares in
miM ate* ^'^ poflcffion of the purchafer, is not valid, (accosding to the Zibir^
diedeftnic- Rdwiyetj') becaufe of the wares not having been in a fbte that ad«
goods in ^ mittol of the lawful oppofition of an exchange for them.
5]|JJ^'* Objection. — ^It would appear that the increafe of the price re-
mains in force ^ier the deflcudion. of the goods; for akhoog^ the
goods be. not thea in a fbte to admit any exdiange bang oppofed to
them, yet the increafe incorporates with th^ or^;ioal contraft, which
was concluded at a time when, die goods beings extant, it was lawful
to oppofe an addition to the exchange for them.
Reply.
Chap.VIL sale. ^
REFLT.-^If the wares had remained in a condition to adnut of an
exchange of property for diem immediatdy^ then fuch eicfaange
mi^ have been immediatdy eftablilhed, and referred afterwards to
the period of formii^ the contrad;, for a thing is firft eftaUiflied on
the ii^btttt and is then referred to the formation of the contraft ;«—
but aSf in the prelent inftancot the immediate ezdiange of the pco-
perty cannot be eftablUhedt the wares no kmger exiftingt the refio^^
back is impoffible; and hence any incitaie of die price is evidendy
invalid.— It is odierwife widi ttfycSt to an abatement of the price
after the deftniOion of the warest beca^ theie, after thdr deffaruc-
tion, are in a ftate which admits of a diminution of the prioe; which
is therefore referred to the formation of the cootra£L
If a perfon, having fold fomething on condition of prompt pay« a^m^mtw
ment, fiiould afterwards agree to receive the price at a future fixed ^^^
period, it is lawful, becanfo the price is folely the right of the feller; ^J^^
and as it is in his power, if he chufo, to forego it altogether, he is *"'''*"'*
confequently entitled, for die convenience and cafe of the purchaier,
to take a fyture payment inftead of a framft one, a Jirtittis-^
If the period ftipulated be not certain, and the uncertainty be vay .
greats (as if he (houM ftipulate psjrment wBen tbe wind Ifyws^ for
inftance,) it is not lawfuL If tbe period, on the contrary, be only
in a fmali degree uncertain, (as if he fliould fi^nilate itut payment
at tbe cutting of the corn^ or tbe tbrefimgdiiii^ it is lawfol, in the
iame manner as in the caieof Aci/» of whidi an explanation has already
beeng^ven«
EvxXT debt inunedilitdy due may be fufpended, in its ofaligttion, fad M»
toafotureperiod, by the creditor, on die prindples kid down in the SSSti^e
preceding ode,— excepting a Am*, the fufpenfion of the bUiption '^
of
• kA. Isrzi tipiffaig a Ion of amw^ in oppolition to jtm^ wbich neam a
Ion of any chiog but money. Tbefe dkcdl are coofidered, by iA^ANr^
diftina
488 SALE. BookXVL
cf'whtcli 18 not approved. — ^The reaibn of this is that the lending of
money, is, in the immedbte aft, equivalent to a loon of any other
thing f, and an aft of benevolence; (whence it is that if a perfin
fliould tender a loan of money to another, expreffing his intention by
the word Areeat^ — as if lie flioutd fay, ^^ I deliver the(e ten £rnn as
*^ an Areeat^^^xt b valid ; and alio, that no perfon who is incapable
of any gratuitous aft, fuch as an infant or a bmatic^ is oompetent to
this deed :) — but in the end it operates as an excbmqp^ iince the bor*
rower gives to the lender an equal fum^ hut not the Identical fpecie he
recrived.-^In confideration, therefore, of the inanediatc off ^ a refpite
is not binding upon the lender, as there can be no conftraint in an
aft purely gratuitous; and, in confideration of the enJ^ the refpite is
not approved, for in this cafe the tranfaftion would rcfoWc itielf into
a iale of money for money, which is ufitry.—lt is otherwi(e, in the
hcfueft of a loan for a fixed period; for if a perfon bequeath the loan of
one thpufiuid ^£rwii to another, for a year, (for inftance,) the per-
formance of this is incumbent on the executor; nor is he entitled to
make any demand on the legatee until the expiration of the term,
iince this bequeft is of a gratuitous nature, and refemUes the bequeft
of the fervices oUz flave, or the ufe of a hou^
difliiift and fepuita mtiire. lodieonetfaeuMeotbntfladelfaoj^fiiUbnceoririiaiit
borrowed, diac is, to fpend the identicil money received, and afterwards letnm an eq«l
number of fimilan. In the Other, the intention is to enjojr the iifiiftiift witbont injurii^
the fiibftance, which is to be returned in its identical Sate.
t Liurally, «< c kaxz f/, i«r its wmuMaUHaarriMef^ it^dvalmi i$ au AaaiAT.**
CHAP.
CifAf.VIII. SALE. 4«9
CHAP- VIII.
Of JUihha, or Ujfury.
RiBBAt in the language of the law, fignifies an excefi, according DdUuciMor
to a legad (bndani of mcafuremcnt or weight, in one of two homoge- ^ ^
neous articles [of weight or meafurement of capacity] oppoied to
each other in a contrail of exchange, and m which fuch excels is fH*
pulated as an obligatory condition on one of the parties, without any
return,— that is, without any thing bong oppofed to it. The fale,
therefore, of two loads cH barley (for inflance) in exchange for one
load of wheat does not confHtute ufuiy, fince thefc articles are not
homogeneous:— and, on the other hand, the (ale of ten yards of
Herit doth in exchange for five yards xA Hitrit cloth is not ufury,
iince, although thefo articles be homogeneous, ftiU they are not
cftimable by wei^t or meafurement of capaci^«
UsvRT is unhwful; and (according to our doftors) is occafioned Ufti; (sea
by rate^^ united vfxlhfpeeies.^—Sbafei maintains that ufury takes place inited^ndi
only in things of an efeuknt nature, or in imikp^.-— It is neceflary, in ^^"^ **
order to the operation of the illegality, that the articles be homoge-
neous; but an equality b point of weight or meafurement of capacity
annihilates the ufury.— It is to be obferved that a fuperiority or inferi-
ority in the fuafitj^ has no cffeft in the eftablifhmcnt of the ufury;
aftkksorwdg^oriMaryfcmciicorcapftett)!^ aid iwcio anklet of i^f/laitfjM/meafitrc-
menCi fudiMrkiK or the like-^Thcphiafebcrc ufied implies m uufMoHtf^tLkTZ with
^oh. IL II r r and
490 S A L E. BookXVL
and hence it is lawful to fell a quantity of the better fort of any ar-
ticle in exchange for an equal quantity of an inferior fort.
AcSe^ftti '^"^ ^^^' ^' ^^ unequal rate, of articles of weight or mcafurc-
article (of ment of Capacity, in exchange for homogeneous articles, is ufurious,
^l^iremciit according to our do£tors^ although the ^ticles be of a defcription
^cxSmwc "^^ ejcuknt^ (fuch as loam or Won^ for intlance;) — becaufe they hold
for M «ii- that the caufe of ufury exi(b, in articles of weight and meafurement
S^o?"^ of capacity, although they be not of an efculent nature. Shafti
iaoe article; ujaimaij^ that fuch (ale is lawful, agreeably to his tenets with refpe£k
to ufury. Suppofing, however, the equality of the rate, fuch (ale is .
lawful in the opinion of all the doctors. — (It is to be obferved that
hani!\&^ an article of meafurement by capacity^ and iron oi weight.^
^'ftfShCTT The- file of" any thing not meafured out according to the legal
iheqaantitiet ftaudard, at an unequal rate^ is lawful. Thus it is lawful to fell one
^n? by * handful of wheat in exchange for two handfuls ; or two handfuls in
^tfdTof ^^^^S^ ^ four ;— and alfo, one apple in exchange for two apples ;
aeafitfenenu becaufe, in fuch cafe, the meafurement not having been made accord-
ing to a legal ftandard, it follows that a fuperiority of meafurement
(which is eilential to the eftablilhment of ufury) has not, according
to the rules of meafurement, taken place. Sbrfei maintains that
fuchfale IS unlawful; becaufe the article is, in thisinfiance, ofan
efculent nature, which (accordbg to his tenets) is the efficient caufe
of ufury^; and alfb becaufe the equality deftruAive of ufury does not
here exifV. (It is to be'obferved that whatever is lefs than half of a
SaA is coofidered equivalent to an handful, fince the law has fixed, no
ihndard of meafure beneath that quantity.)
hit occalioB- WuEREthe quality of being weigbabk or tmefmreile by capacity^
M b^£!^y and corrcfpondence oi ffedes (being thecauies of ufury) both exifl,
in peine of the ftipulation of inequality, or of a fufpenfibn of payment to a future
by afofpca. period, are both ufurious. Thus it is ufurious to fell either §tte mea->
furc
Chap. VIII. S A L E. 49 «
fure of wheat in exchange for iwo mcafurcs, — or one mcafurc of «•« of repay,
wheat for one meafure deliverable at a future period. If, on the con- unkft' the
trary, neither of thcfc circumftances exift, (as in the fale of wheat Sa'Shr^j^
for money,) it is lawful cither to ftipulatc a fuperiority of rate, or the ^ ^trn^
payment at a future period. If, pn the other hand, one of thefe cir-
cumftances only exift, (asin thefale ofw^^tf/ for barky ^ or the fale
of one flave for auothcfy) then % fuperiority in the rate may legally
be fiipulatedy but not a fufpctiTion in the payment. Thus one mea-
fure of wheat may lawfully be fold for two meafures of barley, or one
Have for two flaves : but it is not lawful to fell one meafure of wheat
for one meafure of barley payable at a future period ; nor one flave for
another, deliveraUe at a future period. Sbafei is of opinion that cor^
refpondencc of /pedes alone does not render illegal a fufpenfion of
delivery ; becaufc where, in an exchange, a prompt delivery is oppofed
to a future delivery, there is only zfemhlance of a fuperiority of rate^
founded on the preference given to prompt payment. No^^ if a
fuperiority of rate, in reality^ be not preventive of the legality of the
iale (as in the cafe of one flave for two flaves) it follows that the
femblance o\\\y oi ^ fuperiority is not preventive of fuch legality, afor^
/tori. The arguments of our doctors are, that wherever cither corre-
fpondencc of fpecies, or the quality of being weighable or meafuraUe
cxifts, the wares are, in one fliape, of that defcription in which ufury
takes place ; and accordingly, a femblance of ufury takes place in
them, which is repugpant to the legality of the fale in the fam6
manner as aHual ufury. The ground of this is what is written in
the Hadces Sbireef^ that ** articles of different fpecies may be fold in
** any manner the parties plcafe, provided the bargain be from hand
•* to hand.'"
Objection. — Since correfpondcnce of fpecies, or the quality of
being weighable or meafurable does either of them fingly prevent the
legality of a fufpenfion of delivery, it would follow that acontrad rf
Sillim fale ftipulating an exchange of faffron for dinns or deenars^ is
invalid, as both are articles of ^i^^/^i&/:^- whereas fuch a fale i^ valid
R rr 2 Keplt,
492 SAL E. BookXVL
Rbfly.— The contnSt is lawful, notwlthftandlng &Sron and
dtenars be both articles of weight, becaufe the]r do not agree in
the qua^ty of the weight, as (aflTron is weighed hy MJ$u^ and being a
fubjeft o(Ja/e onljr, is therefore definite bjrfpecificatiou; whereat
iSrms and deenars are wdghed byjloms^ being only /r^^ and not a'
fiijfSoiCdc; and therefore do not become definite by ijpecification.
In the £iine manner, alfo, if a peribn (hould ftU iaffiron to another for
one hundred dlrmSf ready money, that other may lawfully employ the
faid iErm either in purchafe or in any other mode without reweigh-
ing them: — whereas, if a perfon fell laflSron, on condition of its bdng
twoMdMSf thepurchaferisnot afterwards at liberty to difpofe of it by
file or by any other mode without reweighing it ; as holds with refpeft
to all articles of weight or meafurement of capacity. Now it being
thus demouftrated that the waght of fiiflron and other articles is dif«
ferent firom the weight ci£rm and danars^ in appearance, iubftancct
and efie£k, it fiillows that they do not unite in any drcumftance with
lefped to the quality of the weight ; and confequently, that the
femblance of ufury, in this cafe, is only an i^ibenfian of a femUance,
which is not regaurded.
AU articfet EvBRY thing in which the ufurioufnefi of an excels has been
2hfj^'0[ effatUiflied by the prophet on the ground of mafiirtment rf cmpadty^
rfildS!** ^^^^^ ^ wheats ^^» Jaies^ mdfa/t^) k for ever to be confidertd as
ncBt. coad- of that nature, although mankind (hould forfiike this mode of eftima-
^^bs ^^ ;— uid in the (ame manner, every thing in which the ufurioufnefs
^"^^*|^^}^ of the excefs has been efbbUihed by the pro^et on the ground of tcM]fi(/,
toni— continues for ever to beconfidered as an article of weight, like goUw
ertUordak- JUven becaufc the cuftom of mankind, which regulates the mode of
bimidMor meafurementt is of inferior force to the declaration of the prophet ;
wfi/^. andafuperiorcannotyiddtoan inferior. (^iooTi^g^isofopinioQthat
in all thinp pra&ice or cuftom ought to prevail, although in oppo-
fition to the ordinance of xht prophet ; for the ordinance of the pro*
phet was founded on the ufage and practice of his own time : — ^in
8 ordbanceSy
CttAF.Vm* S ALE. 493
otdinancest thereloFe, the prevalent cttftoms among manldnd are to
be regarded; and as thefe are liable to alter, thcj muft be attended
tOt rather than the later of an ordinance.) If, therefore, a perfbn.
ihould (dXiUfieat in exchange for an equal quantity, by weighty or gold
in exdiaage for an equal quantity, by a meafurement of capacity^
neither of thefe fides would be lawful, (according to Hamefa and
MAaamud^ althov|^ thefe modes of we^hing wheat and meafuring
gold ihouU beoome &o£tified by the cuftom of mankind.
Whatever is referred to Rath is confidered as an article of ASirdda
noagbt. Thb the compiler of the Hidfya explains to mean that |[!^|']^[2^
whatever is idd by die Awl^ai^mM^ be confidered as an article oT ^m^oT
weight; for an JwJtiyatU a fixed fiandard of wdght in oppofition to eoiSdci^tt
all other meafures of capacity, as none elie are ftandardsof weight, ^^^y
Kow tt every thing fold by the AwJtiyat comes under the defcrip*
tion of an article of weighty it follows that if this thing be* fold by the
meafurenoient of any other veflel not of a fixed ftandard of wdgfat, op-
poied ta a fimihr veflel, fuch fale is unlawful, becaufe of the proba«
bili^ of a dKparity of weight, notwithfianding the equality in point
of meafurement of capacity; for this, in fa£l, is the fimibas if one
peribn Ihould fell one article of weight in exchange for another of the
iame kind and adjuft the quantity by conje&ure..
It is to be obferved that a Shf (ale means the fale of price in Note coc-
cxdutnge for price; and price implies £rm and deeKoru In this ^j^t^^'f
mode of fale it is a neceflary condition that the interchange of pro-
perties take place at the meeting, becaufe the prophet has ofdained
the iale of filver in exchange ibr filver, from hand to. hand,— -as ihalL
be expbdned at large in treating cSSillim fides i but tn. every other ar-
ticle^ provided it be of that kind in which uiuxy takes place (fuch as
•TlntcnnlwbeenfimaeriyiimtioMto^iifyaao^ (SeeVoLLp.a4.}
FiM tbe coftfBi^ hewmr,^ & voaU apBcar diat it ^
nabeat
494 SAL E. BookXVL
wheat in exchange for wbeat^ for iQibnce,) the mterdiange upon
the fpot is not a condition, it being only required that the article be
fficifie. Sbrfei maintains that in the iale of wheat for wheat mu-
tuai (azin is a condition, becaufe of the ordinance of the piophet,
<< Sill It frm band Hbcmd^^ and alfo becaufe, if one paityOionld
make iozin, and not the other, it follows that an appearance of ufury
takes place, inafmuch as /nM/r payment is fuperior to Jwttn pay-
ment. Our doOors argue that wheat, as bong a determinate lulijeft
of iide, does not, like cloth, ftand in need of iHsin, finoe the ohjeft of
the contraft is the attainment of a power over the article, which is
fully eftabliflied by its bdng determinate. It is otherwife with le-
fpe€k to Srf iales, for there the iozin is made a condition in order that
the price and fubjeft of the fale may be rendered detaminate, whicfai
is only to be eficdcd by means of finzin. IVith refpeft to theoidi-
nance of the prophet, enjoining the iale from hand to hand, OUUUk
Bin Sdtnat^ has explained it to mean the fide of one determinate thmg
ill exchange for another. Be(tdes, on^the poftponement of the feixin,
no lofs is reckoned to rcfult, m the opinion of mankind :•— contrary to
where a prompt and future payment is ftipulated; becaufe the Litter
in .the opinion of maukiud is a detriment.
^^'feTfeM '^^^ falcof one egg in exchange for two eggs, from hand to hand,
fo^cack is lawful; and the f<une with rclpea to dates and walnuts; becaufe
oSTlilA^t '*^^ articles are neither fubjea to meafurement of capacity or wd^t,
-^ with regard to which only ut'ury reUtes. Sbafih in this'cafe, differs
from our doOors; becaufe ufury, according to has opimon, rdalcs to
; of an {Mntf nat«e» of whkh kind thde are.
^S^SffbM ^^^ ^ ^ooe fpectfic Fmhu^^ in exchange for twootfaer fpe-
^i&^ cific Fofasr, is valid, according to Hmuefa. JUbAoiMmri maintains it
SdL7iiuL '^ ^ tmhwful; becaufe, as the fitnefs to conflitute price is efbfalifhed
(See Vd.IL^ 3050
Chap. VIII. SALE- 495
in Fatpost withtfae coulent of mankindy it cannot be annulled bjr any
agreement of a ieller and purchafer ownter thereto; and as the fitnefs
to Gonftitute price (till conttuues, the Fakas cannot be rendered de-
termuute by means of a (tipulatbn to that efied in the contract. The
caie^ therefore, becomes the fame as if a peribn (hould fdll one un-
determsnateFtf/o^/ in exchangefortwoundeterminate;-^r9asifa peribn
ihottld fell one Srm in exchange for two. The reafoning of the
two diiciples is- that Ab fitnefi to oonititute/rm in Falaos cannot
fobfift with relation toa buyer and feller, uole& by their mutual agree*
ment to that effeft^; and, confequently^ where they agree to the
contrary, the Itneft to reprefont price is, with refpeft to them, null ;
nor can the general confent of others, to admit Faloas as a reprefenta«
ftive of price, operate as an argument with refpcft to them, fince in
this matter others have no power over them. Hence it follows that,
as the fitnefs to conftitute price is, with refped to them, null, the
Fatoos may be identified by their fpecification..
OEj£CTioN.^-*Upon the fitnefs to conftitute price being done
away by the agreement of the parties, the Fahos wUl of confequence
revert to their primary nature, mmAy weighty (for the Faloos was
ori^^nally a vjcigbt.^ — It would therefore follow that the file of one
FaliHuiox two Faloos is not valid, although the fitnefi to conftitute
price be done away by the agreement of the contracting parties.
Reply*. — The Falcos do not revert to their ori^nal nature, be*
caufe, by the agreement of mankind, thqr are confidered as articles
of /a/r, and this agreement remams in force. Hence they fluid in
the iame predicament as walnuts^ or other articles iX taltf and tho
unequal fale of them is of confequence in the iame manner lawfo!.-— *
It is otherwife with rdpeiSt to £rnu and Jetnars^ becauie thefe sm-
turally conftitute price.— It is alfo otherwife with idpeft to tlie file
of one undeterminate Fakos in exchange for two ondetenninate Es«
• That IS to fiqr, copper coiiis are not to be coofUeccd as priu but bf a pienoos
sgitemcBt of the parties*
kot\
49« SALE. BookXVL
I^osi for this k, in faft^ a ftipulation of future payment and future
delivery, a ^iesofiide which has beenfbilsiddenl^ tbeprophet.---
It is alio otherwife where the (Hpulation of snt of the parties relates to
undeterminate FaAot, for this is equivalent to a poftpooement of
payment, and fucfa poflponcment is rendered mStmML fay homoge^
neity alone.
^^yH^ 1*HB fiile of wheat In exchange for the Jhur or mrtf/ of wheat is
teiAeat. unkwful, becaufe wheat, and the meal and flour of it, arie all of one
ipedes. — ^It is impoflible, moreover, to aibertain the equality between
thoie articles by mealurement^ fince flour and meal are of a cifi and
enmpoB nature, and wheat b not. Hence this kindof fide is eflenti«
ally invalid, even in the exchange ^ one meaiure of the one (m one
meafure of the other*
Fiotfmnrbe Thr fale of flour in cxdiangc for flour is valid, provided the quan«
AMIbr/Nr, ^^ ^ ^^ ^ mcafurcment, becaufe the condition of legality
(namely, ejuaUt/) is here efbblifhed.
bMMilor Trb iale of flour m exchange for meal ^ is notvalid, accordingto
Hmifaf in any mode ; neither at an equal, nor dt an fmipuJ rate ;
for as it is not lawful to fell flour in exchange for ^cbedythtzt, or
meal in exchange for rm» wheat, fo alio it is not lawfiiL to fell either
of thofe articles for the other, becauie of their homogeneity.— Ac-
cordbg to the two diiciples the fale in queftion is lawful ; becauie
flour and meal are of different fpcctes, in as much as the objeQ to be
^derived from each is diffci ent ; for the objcA of flour is bn^ul, and that
of meal b a culinary preparation, mixed up with water or oiL — ^But
the anfwer to thb b that the original object of both b the fame,
n^^cndyi fiodi which b not affeded in its nature by the modification
^ Anb. SiVMi. AfartcfcoariemcdpivptftddltofiomwiiMf o^
witti fcottim after fifuiig off the fine flour.
of
Chat.VIIL sale, 497
of kf (ince raw wheat and parched wheat are confidered as of the
iame (pecies, and likewiie wheat affeAed by vermin and wheat that
is whde and preferved, — although, in anfwering particular ol:je£ts»
thefe kinds bedificretit.
Tbs iale of flcfli in exchange for a livuig animal is kwful, accord- Tte bk of
ia% to Hamrfa and Aim Toofaf. Mohammed is of opinion that the (ale j^i^^mit
of fleih in ezdunge for a living animal t>f the fame (pecies is unhiwfttU ^^ ■"^^
iinleTs the quantity of the dead fldh exceed that of the living fielh^ ia
order that the exceft may be oppofed in exchange to the other parts of
the living animalf independant of fiefli ; and the remaining part of the
flain flefli remain oppofed in an equal degree to the living fiefli; be*
caufe otherwife ufoiy muft nece(&rily take place, fince, if the quan*
titles of flefli were exaAly equal, it muft neceflarily follow that the
other parts of the living animal had no exchange oppofed to them;—
or if, the quantities f^ fiefli bdng equal, a dedufUon be made from
the dead flefli, in oppofidon to the other parts of the living animal, it
would necefiarily create an inequality in the exchange of fiefh for
fieflu The fale in que(Bon, therefore, refembles a fiile of fe(ame ieed
in exdiange for ie(am^ oil which is unhwfuL The arguments of
the two dilaples in fupport of their opinion is, that the cafo in quef-
tion is in fad the fldeof an article of weight for what is m/ an article
of weight; flnce it is not cuflomaiy to wd{^ liWng animals, it being
indeed impraAicable to afcertain their weight, as they are not at all
times of equal wd^t, an ammal bdn^ lighter when hungry, and
heavier when filled with food.— It is otherwife with oil-feeds, as
by wdg^g thoie may at once be afcertained the quantity of oil con-
tained in them when foparated fiom the dregs or refufo.
Th£ fide of frefli dates in exchange for dried ones is lawful, ac« MrthcfrieoT
voiding to JXmr^/k. The two difoiples hold a difierent opinion, be- i£rSSu^
caufe of a traditkm, in which it is mentibned that a perfon having
interrogated the prophet regarding the legality of fuch fide, the pro-
Voi.IL Sff phet,
49t SAL £* Book XVI.
phet, in return, defired to know whether frefli dates did not di«
mmUh m drying r — -and upon that peribo anfwering in the affirma-
tive, he declared that, fuch being the cale, the £de of frefli date» iii
exchange for dry ones was not hwfuL The arguments cfHtmnefk
in fupport of his opinion are twofold : — ^first, the word Tmnmir^ ex-
preffive of ^ dates, is aUb applicable to/rejb dates, becaufe there is
a tradition that a peribn brou^t fcNtne frefli datea from KJkebir to the
prophet, who, on their being prefented to him, inquired if all tho
Yanmr cfJCJbifeiir were of that kind i and as frefli and diy dates art
from tbb circumftance heU to be of the fame kind, it follows that the
iaieof the one in exchange for the other, on condition of anequaii^
in the rate, is lawful, fince the prophet has (aid, ^^ SeUTAUUiKtin
** exibat^i for Tammirs, at m tqual rtflr.^'-^BCONDLT, if it be
not admitted that frefli dates fall under theappellatioa oi^amnUr^ ftiU
the £ile is hwful, becaufe of another faying of the prophet, «^ tVben
^^ two tbvgs are tf Afferent ffecies^ tbin let them be foid mmAaUwr
^ nuumer ibe parties pkafe.^- In regard to the faying quoted by the
two dif<dples, it refb entirely on the anthority oiZefdIbn Jbbas^
which is codfideTed weak among the traditbnifis.^— It is to be oh*
ferved that the iiuxie difagreement fubfifb with refpeA to the &le of
dried and frefli ir^^f founded on the fame arguments as thofe already
cited. Some have*aflerted that the fale ci dried grapes in exchange
for frejb is unlawful, according to all our doOors, grounding this
aflertioQ on the anak)gy which fubfifts between this cafe and that of
pafdied and raw wheat, the fale of which in. exchange for each other
is univerfidly declared to be invalid*
Thb fale of frefh dates in exchange far frefli dates, at an equal
ate m point of meafurement of capacity, is lawful, in the opinion of
allourdo&ors*.
• The remainder of this cafe, which 1i of eoofiderable length, as weA ai die ceniplfCe
fbocecdbf cafis^ has been ooiittcd in the tranflation, becaufe the d^patsUoos coniilawt in
dma arc fcojided cQ^jrop vc^ criikUb«| whkh
The
Chap. VIII. S A L £.
499
TuE Tale of olives in exchange forptl ni dives is unlawAiU ex- Thtlafcor
ceptin^ when the adlual oil is greater in quantity than the oil con- **•"■"**"
taincd wjthia the olives, in which cafe the excefs bdqg oppofed to jf Sdu?*
the dregs that will neceflarilj remain after the expreflion of the oil, ftrai»hr
prevents the eftablifliment of ufuiy. — ^The law is the ftme with «• _^ ^
fped to the fale of walnuts for the oil of walnuts, of fefami feeds for li!^*lSJJ
the oil of fefeme, of mtik for butter,, or of the juice of the grape or vna^*
datis in exchange for grapes or dates. With refpe£k to the fele of
cotton in exchange for the thread of it there is a ditlerence of o^ioo.
The fele of cotton, however, in exchange for callico is univerfeU/
allowed to be legaL
It is lawful to fell one fpecies of fleih, in any imaaer, in ex* One Atdct
change for another fpecies of flefli, (fuch astheflefliof ar^w forthat JUJ^
of a camel or a goat.) It is to be obferved.that the flefli of a cow and saoAcrfpc
of a bufHilo are of the fame fpecies, as is alio the flefh of a (heep and
that of a goat.
The milk of a cow and of a goat are of different kinds, and tniy TheUtdT
therefore be lawfully ibid in excluuige for each other at unequal rates. ^ *^ ^
It is related, as an opinion of SAafci^ that thefe are of the iame kind, ^^ "^
becaufe the obje£t to be derived fi-om each is the iame. But our doo* Utf of nrflk
tors argue that the fleih of thefe animals is evidently of a difierent ^JSm^T
kind, iince it would not be lawful for a peribn, on whom the gift of **
a cow in alms was enjoined, to fufailitute a goat in lieu of a cow, tifiiry.
if it prove defedive; the milk of thefe animab, therefore, differs
in point of fpecies in the iame manner as thdr fleih. It is to be ob-
ferved that the vinegar of dates b of a different kind from the vin^gaur
of grapes^ becaufe of the difference of their ori^nals. So alio, the wool
of zjbeep is of a difierent kind from that of a gcat^ becaufe they anfwer*
different objeds.
S f f a It
50O SALE. Book XVI.
Bread maj Jr is lawful to fdl bread made of wheat in exchange for wheat, or
loor tt M the flour of wheat, at aa unequal weight, becaufe bread is coa(ideied
imeq«ai rate, ^j^j^^^ ^ ^ ^^^ of tale or of wdght, and confequendy is of a dif-
ferent kind from wheat or fiour, which are fubjed to msafureraent of
caiacity.—'It is rdated as an opiiuon <£Haneefaf that foch iale is ut-
terly invalid; but decrees pafs according to the firfl adjudication, and
this, whether the ddiveiy <tf other the wheat or the bread be ftipu-
hted to take (dace at a future period. According to Umufa the bor*
rowmg of facead is utterly unlawfttl,-*-that is, whether it be coad-
dered as an jirdde of tale orwdg^, becaufe there is great difirence
with refpeft to cakes of bread, other in re^eft to tbemfdvcs, or the
workmanfhip of the baker. Actocding to Mdmnmi it is abfblutdy
legal ; that is, whether the bread be coofidered as an at6dtaitale or
weigit. Accor£ng to Jio9 Thq/^k is lawful, if oonfidered u an ar-
tide of tiv/]g:i6/ ; but not if Goofidered as an article of Hofr, becaufe of
the ^fierence of the unities.
^S^SS^ Usury cannot take place between a mafber and his fkve, becaufe
bMvwRT whatever is m the poflfeflion of the flave is the proper^ of the mafler,
Sbtb^ ^ ^*' ^^ ^^ <^*^ poffibly take place betweea them,, and hence the
impofrilxlity of ufury.— 'This i^oceeds upon a fuppofition of the flave
mh&jiiM bdng frhUegeJ md Jree Jrtm Mt i far in the oUe of a privil^ed
ii/Ummtb- fl>v« ^^ ** infolveat, ufuiy may take (dace between him and his
■MTf mafler, accor£ng toHaneefa, becaufe (agreeably to lus tenets) the
pofiefSons of fiich flave do not bdong to die roafler ;— and accoiidiag to
the two difcifdes, becaufe although (agreeably to didr tenets) the
pofleflions of fuch flave be the property of bis mafier, ffill as die
daims of the creditors are connefted with them, the fhve fbnds in
the fame rdatioa to lus mafier as a fbanger, and confequently ufbry
may exifl in thdr dealings.
Usury cannot take place between t Mtffukum and a hofiile iu>
fidd.
Chat. IX. SALE. 501
fidd, in a hoftile country.— This is contrary to the opinion of j4S(o0 iTIiIJSI
31fofi^zQd Sbrfei^ who conceive an analogy between the cafe in quef- conAiry.
tion and that of a prote6ted alien within the Muffulman territory. The
arguments of our doAors upon this point are twofold. FxrsTi the
prophet has iaid, ^* There is no ufury between^ a Mussulman md m
^ bofiik infidel^ in a foreign land!^ — Sbcokdlt» the property of a
hoftile infideLbeing free to the Mujfulmans^ it follows that it is lawful
tp take it by whatever mode may be poflibie, provided there be no
^ceit ufed*— It is otherwife with rcfpeft to a proteded alien, as hit \^^^^
property is not of a neutral nature, but iacred,. becaufe of the protec- « fronted '
tioa that has beeaafibrded to him..
CHAP. IX.
Of IRights and Afpeniages^
Thb righu cf a faie are things eflentially neceffiuy to the uie of the DdbMMi of
fubjeft of the£de, fuch as, in the purchaie of a houie, the ri^t of !^|^^i^^
paffing through the road that leads to it; or^ in the purchafe of a conMacd
welly the right of drawing water from it^— -^^m^^x iinply things ^"""^^
from which an advantage is derived, but in a fubordinate degree, (udi
aa a coehrcmn^ or a drmn.
If a peribn purchafe a ItSannil above which there is another Mm* OURmm af
«i/, he is not entitled to the upper Mannil^ unlefi he have IHpuIated jSj^,^^
the purcliafe of the Manzi/ «* with all its rights, and all its append- wiAicf^a
4 ^'ages.-*^^"'-'^
502 S A L £. Book XVI.
&Mr»nda ^^ ages,**— or, ^^ with every thing great and fmaU upon it, in it« or
**^ •• of it/' — If, on the ether hand, a perfbn purchafe a Bait above
which there i$ another Bait^ with a ftipnlation of all its rights, ftiU
he is not entitled to the upper Bait. But if a peribo purchafe a DJr
(that is, zjerai) with its -endofure, he is entitled to the upper ftories
and the offices ; becaufe the term X)dr fignifies a phce comprehended
' within an enclofure, which is coiifidered u the original^fobjedt, and
of which the uffcr ftory is a dependant part. Bait, on the contraiy^
fimpiy Ggpides any place ^frefiJmce; and as the upper fioiy of a
houle is of this nature as well as tlie under, it cannot be in*
duded in the purchafe of a Baitf unleft by an ezprefs fpedfica-
tion, fince a thing cannot be a dependant of its fellow. A Mtmzi/^
on the other hand, is a mean;— that is, it is greater thati zBmt^
and fmaller than a Dir;— for although it comprdiends every
thing neceflary to a dwelling-place, iBIl it is defident in having no
place for cattle: a Mmtzilj therefore, is in one refped fimilar to a
D&r^ and in another refpeft fimilar to a Baiti and hence, from its
(imilarity to a D&r^ the upper houfe is included in virtue of its being a
iubordinate part, whenever a fpecification of the rights is made; and,
from its (imilarity to a Bmt^ the upper houfe is not included in the
iale, unlefs a fpecification of the rights be made. — Some have (aid that,
in the pra&ice of the prefent age, the upper houfe is neceflarily in-
cluded in all the above caies; becauie a Bait (which means a
baufe in the Perfian language) does Acoefliuily include the upper
Aory.
A poichovcr A PORCH over a road, of which the beams in one end are laid
Macd*«idi ft vpon aDir [or baitfc] which is the ful^eft of a fale, and in the other
IH^I^^ end upon the oppofite houfe, or upon a pillar, is not mduded in the
Ike fiite of 11* iale of the houfe, unlefs a fpecification of rights be made in the fiJe ;
IsM^r^ becaufe the porch covo-in^ the road is held to be of the fame nature u
cifad. 2 /oad.— Tlie two difdples have obfervda that if the fiud porch
ihould form the entrance into the houfe, it is then virtually induded
in the fale.
If
Chap. X. SALE. 5^3
If a perfon purchafe a room [Baii] in a houfc [Ddr] or dwelling- Thewnuc
place [Mms/V,] he is^not entitled to the ufe of the road, unlefs he doded in the
have fiipulated the rights and appendages, or the great and fm^H be- an'aMrtmenr
longing to it.— In the fame manner, in the fale of land, a well or «©* wcSfoT
drain is not included, unlefs by a fpecification of the rights or ap- ^«*n» « ^^
pendages ; becauic they are not confidered as a part of the ground, Unds, aoieft
but as a depmdant on it. — ^It is othcrwife with refpeft to a kafe^ for J^*£S\'!f."
thai virtually includes the well and road without any fpecification, P**^^*" ^^
becaule the objeft of a leafe is an ufufru A, which is not to be obtained
but by the ufe of the road and well; and it is not a cuftom amongft
farmers to rent a road or a well. But the objeA of a (ale may be
anfwered without the neceffity of including the road or well^ finceit
is cuftomary, amongft purchafers, to fell and trade with the fubjefts
of their purchaie, and to difpofe of them into the hands of another;
whence an advantage is derived from the tranfaftiont without the.
road or other appendage being included..
CHAP. X.
Of Claim of Right (preferred by other to the
Subjea of a Sale )
If a female flave, being ibid, bring forth a child whilft in the pur«
chafer's poflcflion, and another perfon afterwards efiablifli, by wit- 2*^«»^«e^
neifes, that (he was originally his property, and had not belonged to produced a
the feller, fuch perfon is entitled to the female (lave, and alio Co the b'Se^^dlf
child.
A female
504 S A L £• BookXVL
cHafcr'spor- chiM. — If, howcvcr, the proof be eftabU(hed by the acknowledgment
£cthe/wi:h of thc puichafcr, the claimant is in this ca(e entitled to the female
J^^^J^'o?' *1^^'^ ^"^y* ^'"^^^^ ^^ ^'^ fpccifically include thc child in the claim,
the claimant. Jn v/hich cafc the acknowledgment of the purchafer entitles him to
ci^jSm btc/u- both. Thc diftindion between a cafc of evidence and a ca(c of ac-
ci^dcnce^— knowlcdgment is, that teftimony is abfolute proof, being adapted for
but if rhc the elucidation of the h&^ By evidence, therefore, it is manifefied
ported 4 t£e that the flave belonged to uhe claimant ai initio^ that is to fay, from a
i»SJ««f **"^^ P^^ ^^ ^^ purchafc of her; and as, at that period, thc child
only, the child vvas a dependant part of her, (fince it had not ifliied from thc womb,)
perty. it foUows that thc claimant has a right to it as well as thc mother. —
Acknowledgment J on the contrary, is Jefeilhe proof, fince it e(hbli(hes
the right of property of thc thing claimed in thc claimant, purely
from thc neceffity of verifying acknowledgment ; becaule an acknow-
ledgment is a declaration; and if the eftablifiimcnt of thc right of pro-
perty did not in any degree take place, thc declaration muft of courfe
be falfe. — ^Now this confequence maj be prevented by thc clhibliih-
ment of thc right of property at the time of thc acknowledgment;
and the child, at that period, not being a dependant part, as having
liTued from thc womb, is therefore not included in the property of
thc claimant. — ^Some have faid that, in cafc of thc eftablifhment by
teftimony, when xhtKdzee iflues his decree for thc claimant totakc
the flave, the child, from its dependance, is viitually included; and
that there is no neceflity for a fpeciilcation of it in thc decree. Others,
again, have £ud that the fpecification of thc child is an abfolutdy ne-
ceflary condition, of which the adjudication in (everal analogous cafes
is a clear proof* Thus Mohammed has declared that where the K&ssee
decrees the original to any perfon, without having any knowledge of
thc fubordinate parts, fuch fubordinate parts are not comprehended in
thc decree. Where, alfb, in a cafe of a clam of right to a female
Have, purchafed by another, the KA%ee decrees the flave to the claim*
ant, and it £> happens that the child (he has brought forth is in thc
hands
Chap.X. sale. 505
hands of (ome other pcribn than the purchafer, fuch child i$ not com-
prehended in the decree.
If a per(bn purchafe a flave, and the flave afterwards prove bj ApcrfiNileU-
witneffcs that he is free, notwithftandmg that, at the time of con- Zh^^^
cludins: the contraA, he had faid to the purchafef ** purchaie me, •*© •ftw-
^ ft ST r wards proiret
'* for I am a (lave/' — and the feller be prefent, or aijeni at a place to be free,
that is known, the purchafer is entitled to recover the price from htm : ^ p^^riufe.
but if the feller be abfent, and the place of his fojournment unknown, jj^^jj^.
the purchafer is in that cafe entitled to take the price from the (lave, ed fltvc luye
who is to recover the fame from the (eller whenever it may be in his pufchafcr to
power. — Iff on the contrary, a perfbn accept of a flave in pawn^ on ^Jjl^"*
the ground of the flave faying to him, ^* accept of me in pawn, for ^on U hide-
^* I am a flave,*' and it afterwards appear that he is free, the pawnee juier.
is not in that cafe at liberty to take payment from the flave of the
fum due to him, whether the pawner be abfent or prefent, but mufk
at all events feek it from the pawner, y^too Too/qf holds that the fame
rule alfb obtains in the cafe of falCf — that is, that the purchafer has no
light, under any circumftances, to an indemnification from the flave,
becaufe he has no right to take the price from any but the feller, or
his fecurity,«— and the flave b neither of thefe, but merely a liar^
which docs not fuperinduce refponfibility.— The argument of the two
difciples is that, in the cafe in queftion, the purchafer engaged in the
contract on the fble ground of confiding in the flave's declaration,
** purchafe me, for 1 am a flave ;" and hence it follows, that where
a flave has been guilty of a deceit, he is liable for the price, in cafe
the recovery from the feller be impradicable, in order that the injury
occafioned by his deceit may be removed from the purchafer. The
recovery from the feller, however, is impra^cable only in cafe of his
being abfent at a place which is not known. — As, moreover, fale is a
contraft of exchange, it is poflible to render the direffor of it refpon-
Able for the conitderation, (namely, the price,) when the fubjcA is
lofl or deflroyed to the purchafer, this being what a contra£t of fale
Vol. II. T 1 1 requires.
506 SALE. Book XVI.
requires. It is otherwife with refpeft to pawff^ as that is not a
contradl of exchange, but merely a contraft of fecurity for the receipt
of the fubdance of the pawnee*s right ; for which reafbn it is lawful
to give a pawn as fecurity for the price, in a Sirf &le» or for the
goods, in a Sillim iale, although an cxc/Hutge with refpe£b to either of
thefe be unlawful: — in other words, if a pledge fliould be deftroyed
whilft in the pofTeflion of the pawnee, the pawnee is in that cafe held
to have received the fubfbnce of his right;— whereas, if a contra^ of
pawn were in the nature of a contract of exchange, it would fol-
low that in thefe cafes an exchange for the price in a SitfUX% or for
the goods in a Sillim fale, h^d been made previous to the feizin, and
this is unlawfuL The perfon, therefore, who diredts others to enter
into a contract of pawn cannot be rendered refponfible for the debt
to which the pawn is oppofed. Analogous to this is a cafe where
the mafter of a flave fays to merchants, " trade with this (lave
" of mine, for I have privileged him to trade;*' and the merchants
having traded with him accordingly, it becomes afterwards known
that the faid flave is the property of another; for in this cafe the
creditors have a right to receive payment of their debts from the
mafter. — It is to be obferved that the difficulty, in this cafe^ arifes
from the tenets ofHaneefai for, according to him, a claim is a ne-
cefTary condition for the eftabliftiment of freedom ; and here a claim is
out of the queftion, fince, if the flave, after the acknowledgment of
his flavery, (hould aflert a claim to his freedom, he would be guilty
of prevarication; and prevarication is deftrudlive of the validity of a
claim. It is therefore impoflible that, after his own declaration, his
freedom fhould be made apparent ; and hence the ftatement of this
cafe, according to the tenets of Ha$icefa^ is erroneous.— But, in reply
to this objedion, fome have obferved that the proper ilatement of this
cafe is, — that a perfon purchafes a flave at a time when the flave him-
felf faid ** purchafe me, for I am a flave,'* and it afterwards appears
that the perfon fo purchafed was originally free; for this ftatement is
firi£Uy agreeable to the tenets of Hantcfa^ flnce (according to him)
•the
CffAP. X. SALE. 507
the claim of freedom is required as a. condition only in the cafe
of a freedman^ and not in that of a perfon originally free. — Others
again maintain that the claim of freedom, in this ftatement of the cafe
alfbt is a nece^ry condition ; and that the prevarication fo occafioned
is not deftruQive of the validity of the claim; for generation is a con-
cealed circumlbnce ; and the perfon not knowing that his mother was
free at the time of bis generation, he on that account declared himfelf
a (lave; but afterwards, attainmga knowledge of his mother^s free-
dom at that period, he therefore claims his freedom. — If it be thus
flated, that, a perfon having purchafed a (lave, it afterwards appears
that the perfon fb purchafed was free, as having been emancipated by
his majler^ fuch flatement is corre£t, as it does not involve prevarica-
tion, fince the mafter is empowered to emancipate his flave. — This
cafe is therefore, in fa£l, the fame as if a woman (hould purchafe her
divorce from her hufband, and fhould- afterwards eflablifli, by wit-
neiles, that previous to fuch bargain he had divorced her three times ;
or, as if a Mokdtib (hould eftablilh, by witncfies, tliat, previous to
the contract of Kitdbat^ his mafter had emancipated him ; — for in both
thefe cafes the claim and the evidences are admitted, notwithflanding
the prevarication ; and fo alfo in the preceding cafe. The ground of
this is that the mafler being competent to emancipate his (lave, he may
have done it during his abfence, and the flave may afterwards have
preferred his claim immediately on its coming to his knowledge; and
on this fuppofition the prevarication is not held to be deflruflive of
the claim.
If a perfon cliiim a right in a houfe, in an indefinite manner, and Cafe of claim
then compound his claim with the pofleflbr of the houfe for an hundred mo^Uepni
eSrms^ and a third perfon afterwards prove a right to the whole of the SJmpitSa*
houfe excepting the quantity of a cubit ^ for infhnce, in that cafe the ^*l** ^^
poflfeflbrof the houfe has no right to any reftitution from the perfon
with whom he entered into the conipofition; becaufe that perfon,
having before made an indefinite daim without explaining the extent
T 1 1 2 of
5o8 SALE. Book XVI.
of it, may now lawfully declare it to have been the quantity excepted
by the third peribii. — If, on the other hand, a perfon, having claimed
the whole of a houfe, fliould then compound with the pofleffor for an
hundred dirms^ and another perfon (hould afterwards lay cldm to part
of the houie, in that cafe the poileilbr of the boufe is entitled to a
reftitution of a part of the fum he had paid in compofition, propor*
tiooate to the amount of the fecond claim. — It is to be obfervcd
that a compofition of an undefined right for defined property is
lawful, becauie the annulment of an undefined right cannot occafion
contention.
SECTION.
Of Fazooleb B£EA» or the Sale of the Property of mother without
his Cottfent.
AfclccoB- If a perfon fell the property of another without his order, the
I^^^ contraa is complete, but it remains with the proprietor either to
«vj« ^- confirm or dtflblve the fide as he pleafes. Slufei is of opinion that
piopnctoror the contra£b, in this cafe, is not complete; becaufe it has not ifllied
ilicfQljca. £j^^ ^ lawful authority; for that is conftituted only by property or
penmffian^ neither of which exift in this cafe. The arguments of our
doctors are, that fuch a fale is a tranfaflion of transfer, performed by
a competent perfon with refpeft to a fit fubjed: it is therefore indif-
penfaUe that the contrad be regarded as complete; for, befides that
there is no injury in this to the proprietor, (as he has the power of
diflblving it,) it is attended with a gre^t advantage to him, inafmuch
as it frees htm from the trouble of feeking for a purchafer, fettling the
price with him, and other nuitters.-*Moreover, it is attended with
an
Chap. X. SALE. 5^9
an advantage to the icllert whofe word it prefcrves (acred, and to the
purchafer, to whom it confirms a bargain, with which, as having
voluntarily concluded it, he may be fuppofed to be pleafed. — In order,
therefore, to obtain thefe advantages, a legal power is eflabliihed in
the Teller of another's property, more eipecially as the confent of that
other has beea given by implication, fmcea wife man naturally aflents
to a deed attended with advantage to himfelf. — It is to be obfervcd
that it is requtfite that the proprietor give his confent on the condition
of the fubjeA of the fale, and the buyer and feller being extant ; be*
caufe, as his aflent is a deed relative to the contraft, it is ncccflary, of
confequence, when he gives it, that the contrad be in exigence;
and the exigence of the contra£t depends on the exiflence of the parties,
and of the fubjeA of the fale.
When the proprietor of an article, in a Fazoolee fale, ^ves his af- ifaflented u>»
fent to it, the price becomes his property, and remains in the hands J* fro^*?/
of the Fazoolee feller as a depolit, in the fame manner as if he had been o^.^« P^-
an agent for (ale; becaufe the affent is equivalent to a previous ap- rdr^ofutJiih
pointment of agency. tvi[rT^'
It is in the power of the Fazoolee^ or perfbn who fells the pro- who ii at C-
perty of another without authority, to diflblve the contradk without SiflbivlTthc
having obtained the conferjt of the proprietor. It is othcrwife in the ^^l^^*^,.
y \#. • n. J i_ w # 1 • ,.^ Without his
cafe of a marriage contratted by a Fazoo/ee^ as that cannot be dif- concurrence,
folved without the confent of the perfon on whofe account he con-
cluded it.
It is to be obferved that the cxiftence of the parties, and of the
fubjefl of the fale, is fufficient towards the confent of the proprietor
only in cafe of the price being in money ; for, if It be ftipulated in goocfs^
then the exiftence of the price alfo is a neceflary condition. — In this
cafe, however, the confent of the proprietor is not an aflent to the
contra£t of fale, (becaufe the fale is, in this inflance, a fort of pur-
I cbaje^
510 SALE- Book XVI.
c/jajc^ and a FazooUe purchafe does not red upon the aflent of the
perfon on whofe account the Fazoo/ee made the purchafct inafmuch
as the purchafe is confidered in la^v to have been made for himfelf,)
but merely an afleiit to the Fazaolee purchafer making over the pro*
perty he has agreed to give in return for the property which has been
conftituted the price of it. This price, therefore, confiding of goods ^
becomes the property of the Fazoolee^ who remains refponfible for the
fubjeft of the fale, payable in a fimibr, if it be of a nature that admits
of fimilars,— or, if otherwile, for the value of it.
If the proprietor (hould die, then the confent' of the heirs is of no
efficacy in the confirmation of the FazMlee fale, ia either cafe; that is,
whether the price have been ftipulated in money or \n goods; becaufe
the contra£t refted entirely on the perfonal aflent of the deceaied.
If the pro- If a perfon, having given his aflent to a Fazoolee fale, (hould after-
and?hc fub- Wards die, and it be not known whether the fubjeft of the fale was
l^^cificd^'hc ^^^^"^ ^^ "°^ when he gave his afTent, in that cafe, (according to
ulcisinvalid. one Opinion of Aboo Too/of^ which has been adopted by Mohammed^)
the fale is valid, becaufe of the probability of the exigence of the fub-
je£k of the fale at the period of afTent. Aboo Too/of^ however, after-
wards receded from this opinion, and declared this fale to be unlaw-
ful, becaufe of the doubt with regard to the exiftcnce of the fubjcft
of the fale, which in his opinion is deftruAive of its legality.
Theeo.anci Ip a perfon ufurp a flavc, and fell him to another, and, that other
Su'orlgiMl having emancipated him, the original proprietor afterwards confirm
ora"flav« ^^^ ^^^^» "^ ^^^ ^^^^ '^^ emancipation, according to Haneefa and
urorpcd and Toofaf^ is valid, upon a favourable conflrudion. Mohammed main-
oAirDcr, is tains that it is not valid, fince an emancipation cannot be made except
valid. ^jjj^ reUtion to property^ in conformity with a tradition of the pro-
phet to that elFeft ; and the purchafer was not proprietor of the flave
at the time of the emancipation, becaufe the validity of the fale then
retted
CuAir.X. SALE. 5><
reftedon the aflent of the proprietor; and a fufpended fale docs not
endow with a right of property. Where, moreover, the right of
property is confirmed by the mafte/s aflent to the fale, it becomes
confirmed, firfl in the ufurper and then m the emancipator, by a retro-
fpe£t and devolution; and a right of property thus confirmed is efla-
bliflied in one ihape but not in another (hape ; and manumiflion is not
valid except where the right of property exifts in every fhape, in con-
formity with the tradition above cited. Upon this principle it is that
emancipation is not lawful where a perfon, having ufurped a flavc, gives
him his liberty and afterwards makes a retribution to the proprietor;
—or, where a peribn, having .purchafed a flavc, allowing an option to
the feller, -emancipates him, and afterwards receives from the feller a
confirmation of die fale. On the fame principle alfo the /ale is un-
lawful^ where a perfon, having purchafcd a flave from an ufurper,
^s him again to -another, and the proprietor afterwards confirms tiiC
fale of the ufurper ;--<tnd emancipation is likewife invalid, where a
perfoA) having purchafed a flave froou an ufurper, gives him his
liberty^ and the ufurper afterwards makes a retribution to the pro-
prietor. The argument of the Vno Elders is that, in the cafe in
queftion, a fufpended right of property is efbblifhcd in the purchafer
in virtue of an abfolute ^iff^inflituted for the purpofe of enjoymait of
property, namely, an abfolute fale without any ftipulatbn of option ;
and as, in the eftablifhmenc of this right of property, no injury refults
to any one, it follows that the emancipation of the purchafer, (which
refls upon his right of property,) Is alfo eflablifhed in fufpenfe, in the
fame manner as the right of property. When, therefore, in virtue of
the aflent of the proprietor, the right of property operates, it follows
that the fufpended emancipation alfo operates :— in the fame manner
as where a perfon purchafes a flave in pawn frgm the pawner, and
afterwards emancipates him,— in which cafe the. emancipation re-
nuiins fufpended in its operation, as well as the right of property
of the purchafer, until the confent of the pawnee be obtained,
or the pawn be redeemed by the pawner:— or, as where an heir
6 emancipates
5 '2 SALE. BqoicXVI.
emancipates a {ijLve belonging Co the deceafed, at a time when the
cftate was encumbered with debt, — in which cafe the emancipation
remains fufpendcd in its operation until the debts be liquidated, when
it immediately takes place. It is otherwife where an ufurper, having
emancipated the (lave he had ufurped, afterwards makes a compoiition
with the proprietor ; becaufe ufurpation does not entitle to the enjoy-
ment of property : — or, where a purchafer of a flave, under a fale
ftipulating a condition of option to the feller, emancipates the (aid
flave; becaufe in that cafe the fale is not abfolute^ and the exiftence of
the option is preventive of the operation of the right of property in
the purchafer:— -or, laiUy, where a per(bn, having purcha(ed a flave
from an ufurper, fells him to another, and afterwards the original
proprietor gives his aflfent to the fale of the ufurper ; becaufe in virtue
of the aflent of the proprietor the right of property vefh in the pur-
chafer, upon fuchaifent being iignified, but not before: the right of
property, moreover, of the fecond purchafer Vfzs fufpendcd \ and con*
fequently, as the right of property vefts in the firfl purchafer now
(and not before^) it necei&rily follows that fuch fufpended right of
property becomes null.
w^lrtd^foT* ^^ * perfon purchafe a flave from one who had ufurped him,
masminff a and the flave be maimed ♦ by any perfon whilft in the poflefHon of
under a afar- the purchafer, and he [the purchafer] exact the fine of trefpafs from
th^jllrfw^ the maimer, and the original proprietor then give his aflfent to the
if the former fale, — in this cafe the fine is the property of the purchafer \ becaufe
aflSt*UMrucli the flave. is in fuch cafe confidcred as the property of the purchafer,
^*' from the period of the purchafe, whence it is evident that he was (b
at the time of the maiming: and this is an argument againfl: the
doilrine of Mohammed^ exhibited in the preceding cafe, fmce as the
fine is, in this inftance, the right of the purchafer folely in virtue of
the eflablifliment of right of property in him from the period of the
* By dirmemberment of a //m(, fuch as (be hunt.
purchafe.
Chap. X« S A .L E. 513
purchafe, it follows that the emancipation of the purchafer would t)c
valid for the fame reafbn. The reply o( Mohammed to this is, that a
right of property eflablifhed in one (hape only (that is, in an m-
complett manner) is fufficient to entitle to a fine, but not to the
performance of emancipation, which requires that the right of pro-
perty be perfect and complete. It is to be obfcrved that although the
fine, in this cafe, be the right of the purqhafer, ftill if it exceed the
balfoi the price, it is requifite that he beftow the excefs in charity ;
becaufe the fine for the deflrudion of the limb cannot exceed half
the price, as ihtfne of trefpafs for maiming z freeman is one half of
t\iz fne of bloody and confequently, the fine for maiming a flave is one
half of his value. Now nothing can be Included in the refponfibility
beyond what may beoppofed to the price, and implicated in it. Any
•excefs, therefore, over half the price, is an acquifKion to which the
proprietor is not entitled, or to which his claim is doubtful, and is
therefore not perfectly lawful to him.
If a perfon purchafe an ufurped flave, and fell him to another, and the The nfrii of
proprietor afterwards give his alTent to the firft fale, in that cafe the dia^S^
fecond fale is Livalid; becaufe the right of property then efbblrfhed J^JS^c?"
in the firfl purchafer deflroys the fufpended right of property of vaiiabxthe
the fecond purchafer, as has been already explained; and alfb, be- Im^i^hts
caufe there is an urifairnefs in it, fince it is pofTible that the proprietor ^V^}^!^
mzy not give his afTcnt to the fale. But if, after the fale of the flave \^^ if ^t,^
by the purchafer, he fhould then either die or be killed, and the pro- ?*J« P?"*
prietor afterwards give his aflent to the fale, fuch aflent is not valid ; rim chetflcnt
becaufe the exiflence of the fubje£t of the fale is requiftte to the
aflent, and that no longer exifts in either inflance.
Objection. — The reafon here alleged is a valid one where the
flave dies a.natural death ; but it is not fb where he isflain^ becaufe in
that cafe the fbve, in virtue of the exiflence of the amercement j is
confidered, as it were, to be himfelf in exiflence, — for if a flave, hav-
ing been fold by a valid contraA, ihould afterwards be murdered whilfl
Vol. II. U u u m
iiof noac*
COttAC.
514 SALE. Book XVI.
in the pofTcffion of the feller, ftill the falc i$ not null, fincc the con-
fideration for the fubjeft of the falc (namely the amercement) b ex-
tant,— whereas, if he die a natural, death in the hands of the fcUcr,
the fale is null. It would therefore appear that the alTent, in ca(e
of the murder of the flave, is of no eflfcd.
Reply. — In the cafe in queftion it is not poffible to confider the
fine as the right of the purchafer, (ince not having been the pro-
prietor of the flave at the period of the murder, he can have no right
to the amercement, nor can the flave, in virtue of the exiflence of the
amercement, be confidered as extant with refpect to him. The flave^.
therefore, is not extant with relation to him, either aQually or v/r-
itudly. It is otherwife in the cafe of a valid fale^ becaufe there the
purchafer had acquired a right of property to the flave which may be
transferred to the con/ideratian for him ; and coafequently the flave
may be confidered as extant with refpe£t to him.
An article If a perfon fell a flave, the property of another, and the purchafer
S!!^^ eftablifli by witneflcs that the feller had acknowledged that he had
"**^"" w ^^^^ ^*"^ without the aflent of the proprietor,— -or, that the proprie-
perim can* tor had declared that he had not given his aflept to the fale, and the
tlS^S wthc pwchafer wifli to return the flave, the evidence adduced by him is
SSSThUie ^^^ ^^ ^ admitted ; bdbaufe there is a prevarication in his plea, fincc
purchiSer bis aft of porchafmg the flave amounts to a declaration of the validity
S^Tof itt. ^f *^ f^l^t ^^ ^^ pl« ^^ afterwards prefers is contradiftory of this :
^^neto/?* his plea, therefore, is not valid ; and teftinu>ny is to be taken only
aflent to the where the plea it tends to eflablifli is of a valid nature. If, however,
bm iTthe the feller fliould declare before a magiftrate that be had made the
^fMc^Mae ^^^ without the authority of the proprietor, the fale in that cafe be-
aatKorised, comes uull, provided the purchafer defire the diflblution of it> becaufe
the inconfiflency of the purchafer is no bar to the validity of the de-
claration of the (eller, and when the parties both concur in the fiime
wiih the fale is rendered null of cdurfi^. — ^but the concurrence of the
purchafer is a neceflary condition. What is hereadvanced, that " the
** evidence
thefide is
Chap.X. sale. 515
** evidence adduced by the purchafer is not to be admitted/' is the
doftrinc of the Jama Sagbcer. The connpiler of the Heiaya obferves
that it is mentioned in the TLeeddaty that if a perfon purchafe a female
(lave (for inftance) for one thoufand dirms^ and take poflcflion and pay
the price, and afterwards, in confequence of another perfon claiming
her as his property, and ailerting his right to her, furrendcr her to
him, — ^and he [the purchafer] eftablifh, by witncffcs, that the feller
had acknowledged that the (lave was the property of the faid
claimant, the teftimony fo given is inadmiflTible. Between thefe two
cafes, therefore, there is an evident contradiction, which, however,
our modem dodors thus account for In the cafe alluded to in the
Jama Sagbeer^ the (lave was in the pofleflion of the purchafer whai
he produced the witnefles; but in that from the Zeeaddt the (lave
was in the pofleflion of the claimant and not of the purchafer \ and
the condition on which a reftitution of the purchaie-money from the
feller is warranted (namely, non*exiftence of the fubjeft of the fale
with relation to the purchafer) not exifting in the^r/ cafe, but exift-
ing in \\\tfecond^ the evidence in the firft cafe is therefore rejeAed,
and in the fecond it is admitted.
If a perfon fell a houfe belonging to another, without his per- h the r«le of
mi(rioni and makedelivery of it to the purchafer, and afterwards declare JJ^IS^ty
that he had fold it without the permiflion of the owner, then (ac- ^**"^'
cording to Haneefa and the laft opinion o^ Aboo Yoofef) the feller is thefeUerh
not refponfiUe** The firft opinion of Abao Too/of was that the 2Se. ^"'
feller is refpon(ible, and this opinion has been adopted by Mohammed.
This cafe is one of the examples of ufurpation over immoveable pro*
perty, concerning which there is a difference of opinion, as will be
fully explained under the hcp J of Ufurfaiions.
* Meaning that the proprietor is not to look to tht/elUr for the price of his houfe,
but to the pur€bafiri'~<>r^ that the feUer is not lecurity for the purchafer.
Uuu 2 CHAP.
St6 SALE. BooxXVL
CHAP. XL
Of Sil/im Sales.
Definitio* of Kadooree explains Si/lim literally to fignify, a contrad involving a
prompt delivery in return for a diflant delivery. In the language of the
LAW it means a contraA of fale, caufing an immediate payment of the
price, and admitting a delay in the delivery of the wares. In this kind
of fale, the wares are denominated Moojlimrfce-bee^ ^ the price Rdfal^
AUIf^ the feller MooJlim-ali-U X.^ «<J *« purchafer RubulSillim §•
A^« Wc A siLLiM fale Is authorized and rendered legal by a particular
paiEigc in the Koran, and alfo by an exprefs declaration of the pro-
phet prohibiting any one from the fale of what is not in his poflefllon,
but authorifing a Sillim fale. It is to be obferved that Sillhn fale is
contrary to analogy, becaufe of the non-exiftence of the fubjeft of it,
fince it is a (ale of a non-exident article, as the fubjeft, in a «$/////;». fale,
is merely the thing for which the advance is made, and that does
not appear. Analogy, however, is abandoned in this inftance, becaufe
of the text and tradition above cited.
iaal! artidet A SILLIM fale, with relation to articles of weight, or meafurement
tcpt^Irm^ of capacity, is lawful, becaufe the prophet has faid ** Wbofotver enters
m^(!!^ent ^ kto M SILLIU fak with you^ let htm Jlipuiate a determinate weight
•fapactc7» " and meafurement^ and a determinate period of dellvery^^* Dirms and
deenars^ however, are not included in the defcription of articles of
^ Literally, tbt advanai w acauni $f. t The cafiial/ccl.
X Lttenlly, tbiaiwmuit§. $ LtCenJIy, ^mkuauer.
weight,
Chap. XI. SALE. 517
weight, becauie both of thefe are reprefentatives of price, and in a
Siliim fale it is requifite that the futje^ of it be otherwife than a re-
prefentative of price. Hence if a pcrfon (hould enter into zSilltm
iale^ ftipulating the immediate payment of ten yards of cloth to the
feller in lieu often dirms to be delivered to him by the feller at a
fiiture period, the ^IBm (ale ib contradled is invalid. Some have faid
that this fale is abfolutely null. Others, again, have faid that although,
confidering it as a SilKm fale, it is certainly invalid, iflill it is not null^
fince it may be executed fo as to anfw«r the views of the parties as
£u: as poffible, by eonfidering it (imply as a fale of cloth for a price
pajrable hereafter; more e(pecially (ince, in all contra&s, the Jpirit is
what is to be attended to. The former, however, is the better opi-
nion; becau(e, although (ales may lawfully be rendered valid in every
poflible degree, with relation to the things concerned with the parties
have contraded, yet as, in the cafe in queftion, the things fo con-
tracted for are dtrms and JeenarSf which from an exprefs prohibition
are incapable of being made the fubjedt of a Si7/im fale, the contract
with, relation, to them cannot in any degree be rendered valid.
A SI LLIM fale with refped to articles of longitudinal meafurement^ bngitadtiul
fuch as cloiby or the like, is hwful, becaufc it is poffible to define "^"^"^
them exadly by fpecification of the number of yards in refped to the
length and breadth, and the quality and workmanihip of it. (By the
quality is meant xiit fnenefs or coarfenefs j and by the workmanjhip the
loofenefs or dofenefs of the texture.) The fpecification by a recital
of the(c particulars, moreover, is reqtiifite, in order that ignorance
may be avoided : it is therefore e(rential to the validity of the contraft.
In the fame manner alfo, a SUlim fale is lawful with refped to all ar»
tides of tale, which do not eflentially differ in their unities, fuch as
tggs and walnuts I becaufe, in all articles of tale between the unities
of which the difference is trifiing^ the rate is afcertainable, the quality
definable, and the delivery to the purchafcr piaaicable: a contradl of
Siliim^ therefore^ with refpeflk to fuch article is lawful In artides of
this
S«8 SALE. Book XVI.
this nature, A(6^ the great and the fmall are confidered as the iamet
faecaufe mankind have agreed in malcmg no account of the difitrence.
*It is other wife with refpeffc to melons zxi^ftmegranatesj becaufe the
diflference in them is confiderable. It is to be obierved that where
there is a difference in the individuals of any kind, it may be known
whether fuch difference be of any account or not by the effeft it has
on the price. Thus articles of which the individuals of the fame
kind bear a different price are confidered as different ; but where the
price is the fame with refpeA to the individuals they are confidered
as (imilar. It is related, as an ofmiion ofHaneefa^ that oftrich eggs
are not fimilars, as they bear different prices.
It is to be obferved that in the iame manner as a SiUim contraA
is lawful with refpeft to fimilars of tale according to number, fo is it
lawful with refped to theni according to a mea(urement of capacity*
Zifer has faid that it is not lawful accordmg to a meafurement of
capacity, as that does not apply to articles of tale; and it is alio a tenet
of his, that a SU/im (ale with refpeA to articles of tale is unlawfiil be-
caufe of the difference between the individuals of the kind. The
reaibningof our dolors is, that quantity is ibikietimes ascertained by
number and (bmetimes by meafurement of capacity ; and that fimilars
of the fiime fpedes being confidered as -articles of tale only becauie
of the confent and pradice of mankind, they may for the fame reaibn
be futje&ed to a meafurement of capacity by the confent of the
parties. A Siffim fale is likewife lawful widi refpefl to Fa/oos. Some
have fiiid that this is the opinion of the two difciples; but that Mo-
Aamme J is of a different opinion, fince, according to his dodrine, Fa^
ttnos arexeprefentatives of price. The do&'ine of the two difciples on
this head has been already explained in treating of Ufury.
Ic If Boc hw- A siLLiM fide with refpeft to animals is unlawful. Shafei deems
fpeatoanil ^^ lawful, as the article may be afcertained by an explanation of the
genus, the age, the fpecies, and the quali^; after which only a fmall
3 difference
CflAP. XI. SALE. 519
difiecence can take place, in the fame manner as in the cafe of cloth.
Our doctors, on the other hand, .argue that after fuch explans^tions
die difference may ftillbe great with tc{^c& to various qualities and
hidden circumflances,. which mud occafion a contention : in oppo«
fitioh to the cafe of ckih^, becaufe, as being the workmanfliip of
num^ there is rarely any material difference in two pieces of the £ime
kind.. Beiides, it is recorded in the Nai/ Sabeeb that the prophet
forbad the Siliim (ale of animaUi and this prohibition, extends to
every fpecies of animals^ eventoj^^zmowi.
S11.LIM (ale is not lawful with refped to the parts of anaiumal, ortbe/«n^.
fuch as the bead^ or the feet ^ becaufe thofc are not fimilars of tale, ©r fldwjSre-
Hor is there any meafure by which the fize of them might be afcer- JJ^^wJ^^^*^'
tained. In the fame manner alfo, zSlllim fale is unlawful with re(pe& quality be
to ikins, according to number, ox firewood according to bundles^ or
i&^ according to packages^ except the quantity be afcertained by fpe-
cifying the length of the firing that ties them; for then the Siliim
iale with refpeft to them is lawful, provided the mode of binding be
not fuch as to create ^ difference.
A sxLL'iM fak is not lawful, unlefs the fubjed of it be in exifi:^ normiferftht-
cncc,. from the conclufion of the contraft, until the ftipulatcd period JJf^Jj'**
of its delivery. Hence the fale b not lawful if the fubjefi be not in extacaoera.
exiflence at the formation of the contraA, but be extant at the period ddimj*
ftipulated for its delivery; or vice verfai^-^x if, being extant, at the
formation of the contra^, and the time of delivery, it fhould have
been non-exiflent at fbme period of the intervening tio^e. SbafU
maintains that the exiflencc al the period of delivery is fuffident,
whether the article have been extant before or not; becaufe in thb
cafe the feller is capable of delivery at t^e period on which delivery
isrequired. The arguments of our dodors upon this point are two-
fold.—First, zUjuigoixhtTpa^^^
<i
520 SALE. BookXVL
" ^«ILLIM until their ripenefs be afparent^^ which evidently implies
that the capability of the d;^ve^y from the formation of the contra^ is
necelTary. Secondly, The capability of delivery is founded on the
article being fit to be takeit pofleflion of by the purchafer, and it is
therefore indifpenfable that it be in uninterrupted cxiftence from the
formation of the contraft to the inftant of detivery*
If, at the promi(cd period of delivery, the ful:geA of the SilUm be
loft or difappear, the purchafer has in that cafe the option of diflblving
the contract, and receiving back the price from the feller,— or of
waiting until the fubjeS of the fale may be recovered. This is ana-
logous to the absconding of a flave after the fale of him but before the
delivery, in which cafe the purchafer. has the power of either dif*
folvbg the contract or waiting until the flave may be recovered.
It II lawful A siLLiM (ale is lawful with refpeft to dried and falted fifh, pro-
urtickf vidcd it be according to a ftandard weight, and the fpecies be known ;
rtl^h*pc. *^^^"^^ *" ^^ ^^^^ ^^ fubjeft of the fale is of an afcertained nature,
riflullc iA the quality is defined, and the delivery is prafticable, fincc fuch fifh
•fekeptiaa ^^ always fit to be taken pofTeflion of. This fpecies of fale, how-
fei^m * ever, is not allowed according to tale^ fince the individuals amongft
fifh arc not fimilar:— nor is it allowed with refpeft tofrejh fifh,—
or ia fuoa- unlefs at fuch a particular period of the year as renders the procure-
J^^^ ment of them certain, in which a Sitlim fale with refpedk to them,
n^y^^^Ts according to a fixed weight, is lawful, provided the fpecies be defined.
The reafon of this is that frefh fifh is not always to be had, being
fometimes withheld, in the wipter feaibn, in confequencc of the water
behig frozen. In any city^ however, where frefh fifh are always to
be procured, ia Sillhn fale with refpe£t to them is perfedly lawful, pro-
vided it be according to iveigAt^ and not by tafe. — It is related, as ac
opinion of Haneefa^ that it is not lawful to make a Siilim fale with
regard to the flcfh of fifh of fo large a nature as to occafion their flefh
to be cut in the fame manner as that of oxen or goats for inftance, be-
caufe.
Chap. XL SALE. 521
caufe, being illegal with refpeA to all other atiimals, it follows that it
is likewiie fo with refped to^, of which the fiefli is equivalent to
that of anj other creature.
A siLLXM fale of Jkjh is utterly unlawful^ according to Haneefa. XtMBotUw.
The two difciples maintaift that it is lawful with refpeft to the fle(h tojkji^tmu
of quadrupeds, provided a notification be made of the flefli of a known
and determinate part, (fuch as the bauncb^ for inftancc,) and that a
defcription be given of the quoTtties^ (fuch ^fatncfs or kantiefs for
iufhnce;) becaufe in this cafe the weight of the flefh is determined,
and the qualities are aiccrtained, — whence it is that, in cafe of its de-
finition, a compenfation of a fimilar is given, and al(b that it is law-
ful to borrow it according to weight, and that ufury takes place with
regard to it. It is otherwife with relped to the flefh oibirds^ for a
Sillim fale of that is unlawful, (ince it is impoifible tQ fpecify the
fle(h of a particular part, inafmuch as it is not a cuftom to feparate
the parts of birds in (kle, becaufe of their fmallnefs. The argument
oiHaneefa is that the quantity of flefh is uncertain, becaufe of the
difference occafioned by the bones, m regard either to their number or
grojfnefs ; and alfo, becaufe of the difference which takes place with
refped to the fatnefs or leannefs, as animals are fat or lean ac-
cording to the feafbns; and as this uncertainty is a caufe of contention,
fuch fale is therefore inadmiflible; — and for the fame reafon, the
Sillim fale of flefh without bones is not lawful. This is approved.
With refpeft to the cafes quoted by the two difciples of a compenfa«
tion of a fimilar being made for flefh in ca(e of its deflrudibn, and of
its being lawful to borrow it, the legality of fuch compenfation, &c.
is not admitted: but admitting the legality, dill the principle on
which the compenfation of a fim^iir proceeds is evidently becaufe the
retribution of a fimilar is more equitable than that of money ^ fince
money anfwers only to the obje^^ whereas the fimilar anfwers both
obje£fc and appearance ; and the legality of borrowing flefh is becaufe
Vol. II. X X X a feizin
S%z S A I. £. BookXVL
a ieizin made by borrowi|i|; b an obvious and perceptible one ; in op«
pofition to that of a Sil/m fale* which refts upon ^/criptian.
o?ir** ^ siLLiM fale is not bwful unlefi the period for the delivery of
fluiftbc fpc- the wares be fixed. — SB^t has (aid that it is lawful in either cafe;
^*^* (that is, whetlier the period of delivery be fixed or not;) fince it s^
recorded In the traditions that the prophet authorized Sffim Gies in
an abiblute manner, without any reftriiftions regarding the limitation
of the period* The arguments of our dodors upon this point are
twofold — FmsT, The prophet has orduned diat all SiUki&les (ball
be made with a fiipuhtion of a fixed period for deUvery.-rSECOKDLT^
The prophet has prohibited man 'from felling what is not in' his po£*
ieffion, but has neverthelefs authorized and rendered legal 5//Zrm iales,
on this principle, that poor people ftand in need of fuch engagements,,
in order that, by mpans of the money they recdve in advance, thej
may acquire the fubjeft of the £de, and deliver it to the purclialer.-—
It is therefore requifite that a fixed period be ftipulated, becaufe if the
(eller were liable to an inftantaneous deUvery on demand, the prin-
ciple on which the legality of fuch fade is founded would not be an-
fwered. Moreover, an indefinite period is unlawful, becaufe of the
uncertainty; in the fame manner as in a fale where the price fettled
is to be paid at a future period without defining it. It is to be ob-
ferved that the fmallefl term that can be fixed for a deliveiy, in a
Si//im fale, is one month. — Some allege the fmallefl term to be three
days; others, again fixt it at any term exceeding half a day. The Jlf^
opinion is authentic; and decrees are pafled accordingly.
^^. . The flipulation of a private meafure of capacity or longitude is not
aeifurement lawful in a SiUim fale, becaufe of the uncertainty, founded on the
Sdb£ poffibility of the criterion being lofl in the interval between the con-
clufion of the contrad and the delivery ; as has been already explained.
It is ncccflaiy alfo that the inflrumcnt of meafurement be of a fub-
5 fhuicc
CuAF.XL SALE. s^3
ifauiceiiot liaUeehfaer to coatrad or expand, but that it be of a/Kr^
naturet fuch na a lar;ge cap. Leathern bags, however, (fuch aa (faofe
in whkh water is contained,) are allowable for this purpofe, acoord*
ing to JSSO0 1'tf^^ becaufe of the praftice of mankind.
A siLLXM iale, with refpefi to the grain of a fpeciQc viUage, or 'qi"^*^
the fruit of a (pccific orchard, is not lawful; £9t if any accident feftriaioa of
ihould happen to thefe particular places, the deliveiy becomes im- . the p^i^^
practicable: fuch pradice has moreover been pn^bited bj the pro- ^t^/f^^'*'^
phet.— -This (pecification is, however, lawful according to ibme doc-
tors, provided it be to define the quality^ as where a (pedfidtion is made
of thegrainof JC^/Siffiar^inBtfiSA^ or of B^hiiee m Farg^buu
A siLLiM fale is not lawful, according to Haneefd^ except onieven ^^ requim
conditions. I. That the genus of the fubjedt of the (ale be ipecified, be fpealtS^
fuch as wheat or iar/ey.- it That the fpccies of it be fixed, fuch as Sii!^ q^T-
wheat of a foil that is watered by means of a canal^ or other artificial l;>r» q^u-
mode, or wheat of a foil watered by rah. III. That the quality of deil^,
ofitbefixcd,fuchasofthebeflorworflkind. IV. Thatthequan- TddSiS'^
tityof it be fixed according to a fbndard of weight, ormeafurement of ^i/^^'
capacity. V. That the period of the delivery be- fixed, according to
the ordinances in the traditions. VI. That the rate of the capital ad«
vanced be fixed, provided it be of a nature definable by a rattf as
where it is an article of weight, of -meafurement of capacity, or of
tale. — ^And, VII. That the place of delivery be fixed, provided the
fubjc£tof the fale, onaccountof its weight, require /or/rr^^^. — ^The
two di(ciples have £iid, that if the capital to be advanced be prefent,
and exhibited, there is then no need of any mention of the ratci and
alfo, that there is no need of explaining the place of delivery, fince
the delivery mufl be made in the place where the contrad is con-
cluded. Thus there is a di&greement of opinion with refpeft to thefe
two conditions between Haneefa and the two difciples. — ^The argu-
ment of the two difciples in fupport of thAc former pofition, is that as
X X X a * the
J
iS4 SALE. BoosXyr.
the price ii prefent and exhibited, the ol^ aay be obtiined bjr a re-
ference to it, the cafe being, in h&, the fime u tb«t c£cbt6 ftipu-
lated aift the price, in a SUlim ftle, of which fpedficarion is not a re-
quifite condition, provided it be^produced to view and capable of- a re-
ference. The argUQXentii of Htmetfa are twofold. Fi&it, u it
often happens that manj of the £rm and ^kenan are of a bad kind, and
that the pnrcfaafer during the meeting is incapable of exchanf^ng them*
the i^er therefore returns them ; and a proportionate dedu^Uon bong
made fixxn the wares, the iale remains extant in a degree proportionate
to the fum recdved fay the (eUer. Now, in this cafe, and under fuch.
cireomflinces, if the ainount of the &rm be not known; it followa
that it cannot be known in wh|t extent the SISm iale exifts.
Sbcokolt, as it fomethnes happens that the feller, bdng bcapable
of acqittring the ful^eft of the fale, is under the peceffity of reftoring
the price, it follows that if this (houM not have been explained, it is
impoffible to judge what fum he oughtto return.
Ob|bction. — Thefe two fuppofitions are merely imaginary, and
therefore of no weight.
RiPLY.— Ima^nations» with refpeft to ^Um iajes, are equivalent
to reilities; becaufe fuch fales are of but a weak nature, being au-
thorized (as hu been already explained) in oppofition to analogy. —
Hence iroapnations with refped to them are of weight; and it is ne-
cehary that the price be definite with refpeft to the rate,, provided it
bie of fuch a kind as that the cotitra£k may relate to a rate ; but if it
be chtbt the fpecification of a number of yards is not required as a
condition, fince thefe are not coofidered as the retti but the ^
fcriftm,
—As, alio, (according to Huueja^ an exphuntion of the rate of the
price is an eflential condition to a ^im ^e, it'foUows that (agree-
ably to his tenets) a (ale of this, nature is not lawful where the wares,,
beii^ of dtfl^nent kinds, (fuch as noheat and barkjf^ are oppoied to
any fpeofic fum, (one hundred Srmtt for inftance,) without a fe-
parate price bang fpedfied in oppofition to each of the kinds^ becajifo
the
Chaf.XL S a L £. 5^S
the amount being here oppofed generally to bothi the particular price
of each remains unknown.— In the fame manner alfo^ it is not lawful
where, the price being of different kinds, (fuch as Jirm and Jeenarj,)
an explanation is given of the quantity of one of thefe kinds and not of
the otJ^ri foron this cafe the contraft of Sil/im is not lawful in the
degree to which an unknown quantity is oppoied to it ; and confe-
quently, it is alfo invalid with refpedfc to the degree in which it is op*
pofed to a Jbiown quantity, fiuce one contra£t relateli to both. Ac*
cordmg to the two ^fciples both thefe modes of SiNim are lawful,
iinte in thdr opinion an exhibition of the price without any explana-
tioQ of the rate is valid.— The argument of the two difciples in fup*
port of their j/S^M^pofition is, that the place of the contraft is fixed
for the delivery, becaufe the contraA, which is the caufe of the de-
liveiy, did there take place : the cafe is therefore the fame as that oft
tcrrcwir or u/urper^ on each of whom it is incumbent to deliver what
be may have borrowed or *ufurped at the place in which thefe deeds
took place.— The reafoning of Hafiiffa is, that u the delivery of the
fubje^ of a ,St7&n file. is not immSatHy incumbent, the place in which
the contrad » concluded is not abfolutely fixed as the place of de-
liyeiy.— (It is otherwife in cafes of han or ufurpatm^ fince the re*
payment of the loan sind the reftitution of the ufurped article are in*
cumbent upcn tie /ij^m/.)— Now as the plaa ofconchuEMg.tbe cmtra^
is not nccei!arily fixed as the place of delivery, it is requifite that fome
phce be fpedfied, as the uncertainty in this particuhu* may otherwiic
produce a contention, fince the price of gpods varies in different places:
it is therefore indifpenlable that a place of delivery be fpecified by the
parties. — Ignorance, moreover, with refped to the phce of delivery, is
equivalent to uncertainty with refpeft to the quality of the goods or
the quality of the price:— and accocdingly, fbme of our modem doc*
tors have (aid* that if a contention arife between the parties with
refpeft to the place of delivexy, then, agreeably to the tenets of Ha*
ntefa^ their oaths muft be (everally taken, as in the cafe of a con«*
tention regarding the quality of the price;— whereas, agreeably to
tlv:
526 SALE. BookXVI.
the tenets of the two difciples, their oaths are not to be taken.-—-
Others, again, have faid that, agreeably to the tenets of Hancefa^
their oaths are not to be taken; whereas, agreeably to the tenets of
the two difciples, their oaths are to be taken, becaufe, according to
(hem, the place of delivery is virtually involved in the contradl itfelf,
and con(equently a contention with refpeft to it induces the neceffity
of the oaths of both parties, in the fame manner as if it related to the
goods or price :-*<uid that the delivery, in the opinion of //oirrg^, not
being involved in the contrail, but exifting only as a condition, is
therefore equivalent to a condition of option, or a determination of the
period of the payment oJF'the price ;— and a contention regarding thefe
does not mduce the neceflity of the oaths of the parties, but is deter-
mined by the affirmation of the feller.
It is to he oblerved that, in th& fame manner as Haneefa and the
two difciples difagree regarding the fpecification of the place of de*
livery in a SiUirn. fale, fb al£b they difagree regarding the fpecification
of a place fc^ the payment, of the price, (where it is flipulated at a
future period,) — the fpecification of a place for the payment of rent^ —
and alfb, the fpecification of a place for the payment of a fum due
from a partner in a divifion of flock. — ^An example, with refpcA to
pigment of the pricc^ appears where a perfbn purchafes any thing in
exchange for articles of weight or meafurement of Capacity, — or for
fbme definite price, — in which cafe, according to Haneefa^ it is re-
quifite that the place of payment be fpecified, provided the price be
payable at a future period;— whereas, according to the two difciples,
fuch condition is unneceflary, as the place of concluding the contradt
is abfolutely fixed fpr the payment. — (Some have faid chat Hanetfa^
in this particular, coincides with th^ two difciples. This, however,
is erroneous, fince it is certain that a difference of opinion obtains, as
has been already fbted; and fuch, alfo, is the opinion of Sbimfal-
jtyma.) — An example, with refped to rent^ appears where a perfbn
tents a houfc, a quadruped, or the like, ftipulating the price to con-
fift
CHAP.Xt SALE. 527
fift of fomr article of weight or meafurcmeaf of capacity, or of foiiic
fpecific article fuch as is capable of being a debt upon theperfoii, — ^iti
which cafe, according to Hantefa^ It is requifitte that the place of pay-
ment of fuch rent be particularly mentioned, — whereas, according to
the two difciples, the mention of it is not requifitc, but the houfe
itfelf is fixed as the place of payment, — or (in the cafe of hffe of an
animal,) the place where the hirer returns the animal to its owner.—
An example with rcfpeft to a divifion of property, appears where two
perfons, jointly poflcfling a houfe, agree to divide off their (hares,
and one of them, having obtained a larger portion than he is entitled
to, agrees to compound with the other by the payment of a particular
fum, — in which cafe, according to Haneefa^ the fpecification of the
place of payment is a neceflary condition, — whereas, according to the
two difciples, this is unneceiTary, as the place of concluding the agree-
ment determines the place of payment.
If the article for which the advance is made be of fuch a nature as The/iw^/
does not require any expcnce of porterage, fuch as mujk, campblre, tSSjSS
faffron, or fttiall pearls, there is no neceffity, according to all- our ^^^^™^
doctors, for fixing the place of delivery; becaufc the difference of fpcatovw
place occafions no difference of price ; and in this cafe the delivery muft IljSoTlfi,
be made where the contraft is concluded.— The compiler of the He- ^\^ ^'
J&ya remarks that this is the doftrinc laid down in the Jama Sagbeer, ™**'
and alfo in the Mabfoot treating of 7^/?/:— but that in the Mabfooi
treating of hire it is faid that the feller may deliver ihz goods
wherever he^plcafcsi — and this is approved; becaufe the delivery is
not immediately due; and alfo, becaufe, all places in this cafe being
fimilar, there is no neceffity for the^particular determiiiation of any.
Now, the queftion is, if the parties agree upon a place of delivery,
whether it be abfolutely fixed thereby or not. — Some are of opinion
that it is not fixed, becaufe in fo determining it there is no advantage
Others, again, maintain that it is fixed thereby, as its being fo is ad-
vantageous, fiiice the danger of the roads is thereby avoided.—- Ify ia
cafe
|»« SALE. Book XVI.
uiSt^ cafe of the ^oods requiring porterage, a clt/ be fixed on for the dcii-
•d, Mcd dM very, there is then no neceAitj for fpecifying the particular ftreet or
Sv^bi^ lane, bccaufe a citj, notwithftanding the variety of its parts, is con-
dM. fidered as one /Ai^.— Some havp faid that this proceeds on a fuppofi-
tion of the city not being large; — but that, if its extent be a Fara*
/ang^f the fpecification of a particular part is, in that cafe, a necefTary
condition.
Tkt vriet A sxLLiM fale is not valid unlefs the feller receive the price in the
oIm vrOm meeting, prior to a reparation from the purchafer ; becaufe if the price
^^^^ti be ftipulated in moMcy^ it would otherwife follow that one debt is op-
pofed to another dtfbt; a practice which has been prohibited by the
prophet ;— or, if the price be (Hpulated in wanSf it is invalid, becaufe
the cbarafteriftic ofSilSm is ^^ a prompt receipt of fomething in lieu of
^* fomething'to be given,*' which would not beeftabli(hedifaprompt
delivery of the price did not take place. Befides, the payment of the
price is neceflary, to enable the feller to acquire the goods, that he
may become capableof delivery;— and hence lawyers have faid that a
Siifim fale, containing a condition of option in favour of both or one of
the parties, is invalid, becaufe a condition of option is a bar to the
completion of the feizin, inafmuch as it prevents the concluHon of the
cpntraA in regard to its efie£k, namely, the eftablifhment of right of
property ;— and alfo, that the purchafer has no option of infpedtion,
becaufe it is vain and ufelefs; fince the goods are a debt due from the
feller, and confequently .undetermined ; whereas a thing (een becomes
determined.! — It is othenvife with re(peft to an option of defe£t ; be-
caufe that is no bar to feizin ; — and hence, if fuch a fiipuhtion be
made, and the parties annul it before the dofe of the roeetbg, and the
feller be in poiTeflion of the price, fuch Sil/im fale is valid : in oppofi-
tion to the opinion ofZiJirs
^ A league, aboe^ ll^MO fee^ or 21 mOcs 19 kngtL
h
Chap. XJ. SALE, 5*9
If a perfon purcbafe a Koor^ of wheat, by a Si/iim comrafl, for ]J^||J^//*
two hundred ^/n/r/, and, the feller being indebted to him one fromtkefiluer
hundred Viurm, he [the purchafer] make the advance by immediately ctiferSecon.
paying to him. [the feller] one hundred ^>;/»x, and oppofing the debt JfJ^^effi
of one hundred Jirm to the remainder,— in that cafe the contra£k is i* in^iiid ia
invalid in the amount of the debt of one hundred i£frin/, —becauie a tioa:^
prefent feizin is not nSade of them ; but it is valid in the amount of
the one hundred iSrms paid down, becaufe of the obfervance of the
conditions of legality with reipe^ to that proportion, and becaufe it is
not afiedled by the Invalidity of the other proportion, as fuch invalidity
is fupervenient, the iale being valid originally; and hence, if the
purchafer, in this cafe, fliould pay down one hundred dinns on ac«
count of the debt before the end of the meeting, the fale becomes
valid: but as, in the prefent indance, the purchafer does not' pay off
his debt, but merely oppofes a cUarattce of his debt in lieu of ready
payment of one hundred dirnu^ and the contra£ling parties feparate
from the meeting, the fale is therefore invalid in that degree.— -The
reafon of this is, that if a dibt be edabliihed as the price, in a oon-
tra£fc of fale, ftill that is not abfoluuly fxed as the price; (whence if
a peribn purchafe goods in exchange for a debt due to him by the
fellerof the goods, and both parties afterwards agree that the debt »
was mt due, yet the fide does not become null ;)->-and fince the debt
is not abfilutely fxed as the price, fo a^ to be capable of conftitutlng
papital (lock, it follows that the contradl, in fuch cafe, does
originally take place, and afterwards becomes invalid from that cir-
cumftance.
It is not lawful for the feller to convert to ufc, or, by any deed, to ^JjJ-J^^
difpofe of the price advanced, in a Sitlim fale, (as if he (hould fell it, of ^ the
for inftance,) prior to hi? feizia of it, becaufe in this cafe the feizin akcpo^ffion
of the price, which isan eflcntial condition in zSilliut fide, would be ^^*
* A dry BakjUmfi mcafiire of 7,100. lib.— (See Rlcbmr^t^i Diaiooaiy.)
Vol. II. Y y y defeated.
530 SALE- BookXVL
iiorctiittie defatccL—- In tKe iame manner, alib, it is unlawful for a purchaier,
^^^bnn utf in a SiUim laic, to perform any z£t with refped to the goods previous
^Am tius ^^ *® receipt of them ; becaufe an a£t with relauon to the fubjeft of
|o^ ttQta a fale previous to the fcizin is unlawfaL — ^For the fame reafon, alio,
them. it is unlawful for the purchafer, prior to fdzin, to admit another to a
(hare in the goods, or to difpofe of them at prime coft.
^ dT^^M If both parties agree to diflblve a contraft of A7//in, the purchaler
tlieiiockcaa. is not, in that cafe, entitled to accept or purchafe any thing froxu the
^ lo^e ^^^ ^*n exchange for the (lock he has advanced, until he has firft re-
2J^***^ ceived it hack complete; bccaufe the prophet has (aid, " ffTftre ye
Oon ^.^ ^^ SJfohe a cent raff of fait upon which an adxnmce has been made^ take
fMncdved *^ not from him to whom ye have paid the aJhance any thing except
^* that which ye have advanced to iSim;**— and aUb, becau(e, as die
capital advanc^, in this in(bnce, is re(embling and like unto the fub-
jcft of the fale, it follows that any afl: with refped to it, previous to
feizin, is invalid. — The rea(bn why the capital advanced refembks the
futjed of the fale is, that a diflblution is equivalent to a new (ale with
relation to a third perfon, (that is, to any other than the parties them-
felves,) and it is therefore neceflary that the ful^e€t<^ the (ale be ex-
tant. Now it is'impoflible that the goods contraAed to be provided
can be confidercd as thciubjea of the (ale, (ince they are not extant;
it is therefore neceflary to coniider the price in that light; and this
confequently becomes a debt due by the feller, in the (ame maimer as
the goods were.
Objection. — Since a diflblution is equivalent to a new contrail,
fimilar to the fir(l, it would follow that it is indi(ptfn(able that tne ad-
vanced .capital be received back by the purchafer at the meeting In
which the diflblution is determined on, in the £ime manner as it is i^
quifite that it be advanced to the (eller at the time of cqpdudmg the
contraa: whereas it is othcrwife.
Reply.— It is not indifpenfitUe that this be received back at the
interview
XI. SALE. 531
interview of diflblution, becaufe the diflblution is not in all refpcfts
fimilar to the firfl: contraA.
— Concerning the cafe in queftion Ziffa^ has given a different opinion,
for, according to him, any deed relating to the price, previous to the
ieizin, is lavi^ful : — but the reafoning above ftated is a Sufficient refuta-
tion of this opinion.
If a perfon fell a Koor of wheat by a SUUm fale, and afterwards, An ardde
when the period of delivery arrives, purchafe the fame from another, ^^wSSki^
and then defire the purchafer to receive it from that other in difcharge bilS^^f'
of hb claim upon him; and the purchafer accordingly take poileflion ora5//tf«(iie,
of the fame, dill he is not confidered to have made feizin of the fub- bs delivered,
jeft of the ^//////i, fale, and confequcntly, if the wheat be loft or dc-
ftroyed whilft in his pofteffion, the feller b refponfible for the fame. '
But if the feller fhould have defired him to receive it firft on hh [the aale& the
' feller^ {\ account, and afterwards on bis cwn account, and the pur- SS!S!hfifr*
chafer, accordinjgly, firft meafure it out and receive it on account of ^ ^j«Jf «^
the feller, and afterwards meafure it out and receive it on his own Md thea
account, the fubje£t of the SlUim fale is m that cafe delivered, and oricoQi«#
the purchafer becomes completely feized of the lame. The reafon of 1^^^^*
this b, that there is here a conjunction of two contrads ; frjl^ the ^i^m& mca-
Silftm (ale; and, fecondly^ the iaic between the feller of the &tUhn fale
and the third perlbn; and it is a necei&ry condition that the meafure-
ment take place in both, becaufe the prophet has prohibited the (ale
of wheat until the meafure both of the purchafer and the feller (hall
have been applied to it ; and this prohibition (as has been already ex-
plained) evidently alludes to the conjundUou of two contraAs, fuch as
in the cafe in queftion.
Objectiok. — As the Siirm fale b previous to the purchafe of
wheat made by the SiUim feller, it follows that the two contracts are
not conjoined.
Reply. — The SiUim contrad b antecedent, but the feizin of the
fubjedt of it is pofterior; — and the feizin here is equivalent to a fale
it fiovoi becaufe, although the fubjeft of the St7/im fale was a debt
Y y y 2 incumbent
53^ SAL E. Book XVI.
incumbent on the feller, and what the purchafer had received was a
determinate thing, and confequently, in reality, dlfercnt from a debt»
yet they are in this cafe confidered as one and the fame thing, left it
ihould follow that the exchange of the fubjed of a Sillim fale has
been made previous to the feizin of it ; for if they were to be coufi*
dcred as two things, it would follow that the fubject of the SiHim (ale
prior to the feizin of it was given in exchange for what the purchafer
made feizin of, namely, a determinate thing and not zdebt. — Now (ince
the feizin is proved to be in the nature of a (ale Je novOf it follows
that two contraAs are conjoined, namely, the purchafe of the wheat
by the Sil/im feller, and the feizin of it by the Si//im purchafer, which
is equivalent to a fale Je novo; that b, the cafe is the fame as if the
SiUim feller, having purchafed it from the purchafer, were to re-(eU it
to the Sf/Iim purchafer.
A>M^n€a* If a perfbn, indebted. to another in a Kvor of wheat, not on ac*
MK^oiicd count of a Sillim fale *, but on account of a /oan^ ihould purchafe zKoor
Iba fimtUr of wheat from another, and then defire his creditor to receive the lame
ardcle bjr a from the Other, in lieu of what he had borrowed, and the creditor, having
^*^* meafured out the fame, Ihould accordingly take pofleflion of it, fuch
feizm Is valid, and a re-pay ment of the loan is eftablilhed ; becaafe a
loan of iif^jv//^ property [Karz] is equivalent to a loan of Jpeci/lc
property. [^«aa/,]— and hence the Koor of wheat fo meafurtd and
received by the lender may be*faid lo be his a£tual right, for which
reaibn the traniaAion is not regarded ps a canjunfUm ^two contraflSf
[with refpeft to one fubjed] and it b confequently not requiiite that
the wheat be meaiiired zJeconJ tioie.
mc^rcdc ^^ * peribn, having purchafed a JT^at of wheat hj^ Sillim fale,
«nicie,Mbe- fhould order the feller to meafure it and put it into his (the pur-
fmhMkx. itt <^h^^f*0 ^^ck, and the feller having accordingly meafured it out*
E^Jlf?ddi! ^^^ ^^^ ^ ^^^ ^*^^ ^^^ *^ * '*"^ ^^^ ^^^ purchafer is not himfelf
prefent,
^ That v^ M an artlck fir wbith be had nceheJ etn a^Mnue.
Chap. XL SALE. 533
prefent, in this aft a delivery of the goods is not held to have taken .^*^^
place, (infomuch that if the wheat ihould ia that £tuation be de- into the par-
jftroyed, the lofs Ms entirely on the^^iKrr;) becaufc thepurchafer, in ^^*^*'** ***
a SiHim fale, does not become proprietor of the article^ for which he
makes the advance, until a£tual feizin, as his right is of an indefinite
nature and not determinate: now the wheat ^ in the cafe in queftion,
is a deternnnate articlct and haice the order given to the feller by the
purchafer to meafure it out was not valid, — (ince the order of a di-
rector is of no account except with refpeft to his own property.—
Thus the feller, as it were, borrowed ^t lack of the purchafer^ and
put wheat which was his own property into it ;— in the £ime manner
as if a peribn, having a debt of fome Mrms due to him by another,
ihould give his puife to the debtor and defire him to weigh xkttdirms
and jput them into it ; in which cafe if the dd>tor aft accordingly,
fllll the creditor does not by the performance of this aft become
feized of thofe Smu. — If, on the contrary, a peribn, having purchafed
wheat that is determinate and prefent^ ihould direft the feller to mea-
fure it, and put it into his [the purchaier*s] fack, and the feller aft
accordingly, at a time when the purchafer is abfent, the purchafer is
neverthclefs feized of the fame in virtue of that aft, becaufc his di-
reftions to the fcUer were efficient, as the property of the wheat had
veiled in him m confequence of his purchafe of it. — ^Hence it appears
that in a common iale the purchafer becomes proprietor of the article
previous to the feizin, — whereas, in a Si/Iim fale, the right of property
does not veil until after the feizin. — Hence, dHo^ in a Si/Ism fale^ if
the purchafer defire the feller to grind the wheat, put in the manner
above recited into his bag, the flour is the property of the feller ;— «
whereas, if the fame were to be done in caie of a c^.mnon iale, it would
be the property of the pm^afer. In the iamc manner, alfo, if the
purchafer ihould defire the feller to throw the wheat into the river,
and he aft accordingly, then, in a SiUim fale, the lois would refult to
theyj/fer,— whereas, in a common (ale it woUld fall upon the purchafer^
and he would remain refponfible for the price, fince his order was ef-
ficient.
534 S ALE. BooxXVL
ficient. Hence, in the Rawdyet-Sabeeh^ it is declared to be fufficieAt
that the feller, by the direction of the purchafer, meafure out the ar-
ticle and put it into the purchafer's fack ; and there is no neceflity
for another meafurement, (ince in this cafe the feller a£ts as agent for
meafurement to the purchafer; and the feiztn is completdy efta-
bliihed, becaufe of the falling of the wheat into the purchafer's lack.
•7"t?*** If a perfon purchafe wheat, and direffc the ftUer to meafure it out
faicd by tke and put it into his own fack, and the feller zd accordingly, the pur-
^i^fiick ^ chafer is not fdsed c^it, inafmuch as he borrowed the fack of the
the MTckif. fcUer without taking pofleffion of it, and c<xifequently does not be*
Althottgh the come feized of its contents.— *The cafe is therefore the fame as if the
P[|^^ ^ purchaibr had direftcd the feller to meafure out die wheat and place
it in a particular comer of his own houfe, which being completely ia
the poflcflion of the feller, the purchafer caimot confequently be
(eized of any thing in it.
Cafe of deli- Ip an undctcrminate and a (pecific thing be joined together, by a
i«rM»Mr#arti- pcrfon (for inftauce) purchafing a fpecific Koor of wheat, and aUb
p!u«ei«i^ entering into a Siirm contrad for another Koor of the fame (the
MiMMracff former of which \s fpecific and the latter undctcrmnate^ and then di-
reAing the feUer to meafure out both into his own. fack, in. that
ca(e, if the feller ftrft meafure the j^c^ wheat into the lack, and
afterwards the undctcrminate wheat, the purdiaie is fdzed of bub the
meafures-of wheat ;— of the detemunate wheat, becaufe his directions
to the feller with refpeft to it were efficient^ as it was his undoubted
property;— *and of the undetermmate "whtdX^ becaufe, upon the feller
meafuring it out, and placing it in the bag, it then becomes impli-
cated with the property of the purchafer, and on account of fuch im-
plication tlie purchafer becomes feized of it. — ^The cafe therefore b
analagous to where a perfon^ having foficited the loan of fome wheat,
defires the lender to fcatter it on his (the borrower's) ground,— or,
where a perfon configns his ring to a jeweller with directions to add
to
Chap. XL SALE. 535
to it more gold, to the weight of half a deeuar i-^(or m both thefe
cafes the feizin takes place immediately on the implication with the
property .-^Ify on the contrary, in the cafe in qoeftion, the feller firft
meafure out the smdetermmate wheat, and place it in the purchafer^s
lack, and afterwards the J^ljic wheat, the purcbafer does not be-
come feized of either; becaufe his direftions to meafure out the un-
determinate wheat were not efficient, and confequently the property
of it remained with the &Uer, as before :-— and having afterwards
mixed the determnate wheat with- his own property, he thereby de^
itroys and annuls the right of property of the other. — This is
founded on the dodnne of ibautfa^ according to whom the implica-
tion of the property of another with one^s wm is deflru£tive of the
right of property of that other; and on this principle he holds the
fale with refpe£): to the determinate wheat to be difTolved.
Objection.— *The above implication is with the confent of the
purchafcr, (ince it was by his order that the feller made the meafure-
ment, and hence the fale ought not in this cafe to be diflblved.
Reply. — ^The implication is not made with the confent of the
purcbafer^ finre there is a probability that hb objeft was that the
fpecific wheat fhould firft be meafured out.
—What is here advanced is founded on the dodrine of Hmeefa^ as
above (iated. The twodifciples are of opinion that the purchafer
\ias the option of either diflblving the fale or fharing with the feller
in the mixed property; becaufe, according to them, the implication,
of the property of another with one's own is not in all cafes deflruc-
tive of the right of property of that other.
If a perfon purchafe a JCwr of wheat by a Sillim contraft, making ifthecmraA
a female (lave the price advanced, and afkcr the feller taking poffcf. J^^'JJ^^
fion of the flave ^e parties diflblve the contraA, and the flave after- cfe admiccd
wards die whilfl yet in the poflefTion of the feller, in this cafe the SSlHtii?^
feller IS refponfible for the value fhe bore on the day of feizin.— If, jS^^Si^
aTfo, the difToIution be made rfier the death of the female flave, it
is
536 SAL E. BookXVI.
IS viilid, and the (eller iii the (acne manner remains refponfible for
the value at the period of feizin. — The reafon of this is that the va-
lidity of a dtfiblutjon refts upon the exigence of the contraA, and
that, again, reds upon the exiftence of the fubjec^ of it : now, in a
contrail of 5V7/noi, the article advanced for is the fubjeii of the con-
trad ; and as that, in the cafe in queftion, ftill continues in exiftence,
it follows that the diflblution is valid : — and the difiblution being
valid, iuid the contra& of SilHm confequently cancelled with refpeft
to the article advanced for, it follows that it is alfo cancelled with
reipefi to the flave, (being the price paid in advance,) as a dependant
of the article advanced for, although it be not valid with refpeft to
the flave, originally^ becauie of her non-exiftence, (ince there are
many things which, although not valid originally^ are yet (b depend-
antly. — ^The contraA, therefore, being cancelled with refpeft to the
flave, it becomes incumbent upon the feller to return her ; but as
this is impracticable, he muft pay her value.
The dtflbltt. If a per(bn, having purchafed a flave, (hould agree with the feller
is rendered to <liflolvc the bargain, and the flave afterwards die in his poflefllon,
'znSw^^^. the diflblution is invalid ;— or, if the flave die/ir/?, and the parties
ing before re. then agree to diflblve the contradl, in this cafe alfo the diflblution is
invalid ; — becaufe, the flave being the fubjeft of the fale, and his death
of confequencc dcflroying the exiflence of the contra£t, the diflblution
is therefore invalid from the beginning in the fecond ca(e, and be-
comes invalid in the end in the firft cafe,— as the fubject no longer
remains. It is otherwifc in a cafe o( Beea Mookaye%a^ or barters be-
caufe a diflblution in that cafe is valid after the decay or deflruAion
of one of the articles ; fuice either of them being capable of becoming
the fubject of the fale, the exifting one is therefore confidered as fuch.
In a dirmite '^ ^ pcrfon enter into a contra^ ofSillim for a Koor of wheat, at the
with T^pttCi p2^c of (^,j dirms^ and the feller afterwards aflcrt that ** hehadagrecd for
the ijii,ta. ** wheat of an inferior fort,*' and the purchafcr deny this, aflerting that
4 •* the
Chap. XL SALE. 537
^* the AipuUtion of wheat was made in an abfolute manner, and the airmtoa
*• therefore the contrail is invalid/* in fuch cafe the aflertion of (oponwih)
the feller, corroborated by an oath, muft be credited, fince lie pleads J"^^ ^^'
the validity of the contract, by virtue of the declaration of a condi-
tion of it ; and the aflertion of the purchafer, notwithftanding his
denial of the validity of the contract, is not credited, becaufe it
tends to a defh-udion of his own right, fince it is a cuftom, in
Sill'm fales, that the goods advanced for be fuperkr to the fum ad-
vanced.—-If a v/Vr verfa difiigreement take place between the parties,
the learned (ay that, agreeably to the dofirine of Haneefa^ the afler-
tion of the purchafer is credited, fiilce he claims the validity of the con •
tradl.— According to the two difciples, the alTertion of the fcUer is
credited in both cafes, as he is the defendant in both, notwithftanding
that, in the htter, he deny the validity of the contraA. This will
be more fuUy explained hereafter.
If a difagreement take place between the parties to a SiUim (ale, ifthefcllcr
by the feller :d(ierting that a period of delivery had not been deter- fSwme" o^
mined in the contrad, and the purchafer aflertihg that it had, the af- » pfnod of
fertion.of the purchafer muft be credited, becaufe a determination of aflbtion'of^
a period for delivery is a right of the feller, and his denial is therefore ^Jg^^l
a wilful injury to himfelf. ^i^ ^
Objection. — The feller denies the determination of a period for
delivery from a view to his own advantage ; fince fuch denial is the
caufe of annulling the contra^kt by which means he obtains the pro-
perty of the goods he had engaged to deliver. Hence his denial is ad-
vantagtous and not injurious to him(elf.
R&PLY. — ^The invalidity of a Si/Hm contraA, becaufe of the period
of delivery being undeterminate, is not certain, fince our do£tors have^
difagreed on this point. The advantage, therefore, in this view, is
of no account; — ^whereas the advantage to the y^/&r, from the deter-
mination of fuch period, being obvious, his denial of it thereupoit is
an injury to himfelf.-— It is otberwife in the cafe of a difagreement
Vol. II. Z 2 z between
53« S A< L E. BookXVL
between the parties with regard to the exifteiice of a conditioo con-
cerning the quality of the article; becaufe in that inftance the mva-
lidity of the contrary from a want of a definition of the quality^
is certain.
— If^ on the other hand, the fdler aflert that the period had beea
determined, and the purchafer deny this, in that caie, according to
the two difciples, the ailertion of the purchafer* muft be credited, be-
caufe he denies the ri^t which the feller claims from him, althougjh,
at the fame time, he deny the validity of the contraft; — ^in the fame
manner as holds with refped to the proprietor of the ftock in a con-
tn€t of Mndniat ;«~that is to fay, if the prc^rietor of the ftock were
to fay to his Mozirtb^ or manager, ^* I ftipulated that a half of the
<* profit (hall go to you eiccepting ten^'nni;** and the manager
deny this, and aflert that he had ftipulated a half oi the profit in
hisfiivour, in this cafe the aflertion of the proprietor of the (lock is ere*
dited, fin9e he denies the claim .of right of the agent, notwithftanding
he thereby at the fame time deny the validity of the contract be*
tween thcm.^^^Hantefa fays that, iii the cafe in queition, the aflertion
of xhtfelkr is to be credited, becaufe he claims the validity of the
contrad. Bcfides,^hc purchafer and feller both agree in their having
made a SUFim contraft, and confequently they both apparently agree
in the validity of it : — but, agslin, the purchaser, in denying the af-
fertion of the feller, denies the validity of the contra&, which is
the denial of a thing he at the (ame. time admits, and is confequently
not worthy of credit*— It isotherwife in the cafe of Mndritat^ be-
caufe a contrail ofMozaritat is not binding upon dther the manager
or the owner of the ftock, fince the manager may refuie the execu-
tion of the Mozdriiat at any tune, and the conftituent may difmifs
him when he pleafes : fuch a difagreement, therefore, in the cafe of
Mazdriiat^ is of no confequence, the plea oiinvalidity^ iitthisbftance,
amounting, m faft, to nothing more than a refufal, to cari'y the
contrail into execution, which it is lawful for either party to do.
There remains, therefore, only the claim to profit on the part of
the
CuAP. XL SALE. 539
the manager; aad as this is oppofcd by the proprietor of the ftoc4Cthts
declaration muA coafequently be credited. — A Sil/im contract, on the
contrary, is a&foltite^ and therefore of a different nature.
— From the above dilcuflion it appears to be a general rule that the af-
fertion of a peribn who denies his own righti and not the right of ano-
ther upon him, is not credited in the opinion of all our doflors ;— -and
that whoever pleads the validity of a contract muft be credited in his
aflertiont according to Hantefa^ provided both parties be agreed in the ,
uniformity of the contraA, fuch as that of Sillim^ which, whether
valid or invalid, is of an uniform nature; in oppofition to Moninbat^
which, in cafe of its vilidity, is a contradl of participated profit, and
in cafe of its invalidity is nierely a.contra£k of hire. — The two fchobrs
are of opinion that, in the cafe in queftion, the aflertion of the dt^
ftndant muft be credited, notwithftanding lie thereby deny the vali-
dity of the contra^
Ip a perfon enter into a &iHlm contra£fc with refpedt to ckthr de- In«i»«aifi
icribing its length, breadth, and quality of finends or coarfenefs, fuch IjiMm Satu!
iMe is valid, becaufe it is a contraft tfSiJiim which relates to a known ^{^^L^
thing, and of which the delivery is practicable. If the {uhjeCt of the ^t^iML.
fale be a piece of ^^ (luff, it is neceflary, in addition, to fettle the
weighty thai alio being an object in this inflance.
A siLLiM fald of jewels or marine (hells is not lawful, becaufe sil^tf^tU
the unities of thefe vary in their value. Scfli^qf /JIn
ell t bat it is
valid is fmaJI
A SILLIM fale of finall pearls that are fold according to weight is p«vy<^^r
lawful, as the weight afceruins the fubjeft of the iale. '^
Thsxe is no impropriety in a fale of bricks^ whether they be in in kHth,
a wet or dry (late, provided a defcription be given of the mould in
which they are formed, becaufe bricks, in their unities, are of a (imi-
hr nature, more efpecially where their mould is defcribed. — In ihort,
Z z z 2 every
540
asd (in Aon)
ia til »niclef
wfakb adait
a gtneral de*
fcripcion of
quality, and
aJcerainmenc
of quantity }
SALE. BooRXVf.
iViry thing of which it is poffible to comprize a defcription of the
qualities, and a knowledge of the quantity, is a fit fubjccl of Silltm
fale, as it cannot occafion contention; on the other hand, a Silim fale
is not lawful with refpeA to things incapable of being defined by a
defcription of quality or quantity; becaufe the fubje£t ofzSitHm fale
is a debt due by the feller ; and if its quality be not known there
confcquently exifts a degree of uncertainty from which a contention
mud arife.
or wliicJi are
fiardcularly
defined.
There is no impropriety in zSIUim fale of pots or veflels for boil-
ing water, or oi boots ^ or the like, provided thcfe articles be particu-
larly defined, becaufe the conditions eflential to the validity o(z Sillhn
fale are here observed : — but if the articles be not defined, the fale is
abfolutcly invalid, the fubjeft of the fale being in fuch cafe an un-
defined debt. It is alfo lawful to befpeak any of thefe articles from
the workman without fixing the period of delivery. — Thusifaperlbn
ihould defire a boot-maker to make boots on his account, of a parti-
cular fize and quality, fuch agreement is lawful, on a fisivourable
conftruftion^ founded on the ufagc and praftice of mankind, although
it be unlawful by analogy, as being the ialc of a nonentity, which is
prohibited..
Articles be-
fpoke from
tne manufac •
tiirtr» in a
contraA of
iiliim^ are
confidered at
It is to be obfcrved that a contract for workmanfliip is z/aU and
not merely a fromije. This b approved. The fubjecl of the fale,
moreover, in fuch cafe, although in reality a nonentity, is yet confi-
dercd, in effeA, as an eniiiy^ and the thing upon which the contrafl
xtd^ is Confidercd as a fubftance, (that is, as boots^ for inftance) and
not as the work of a manufaAurer in an abjir ailed manner ; — and ac-
cordingly, if the nuuiufaAurcr bring boots that had been worked
by another, or boots which he had himfclf worked prior to
the contrail, and the perfoii who had befpoke them ihould approve
of the fame, the contraA is legally fulfilled.— Befides, articles that
are befpokcn are not determined for the perfon who befpoke them
3 until
Chap. XL S A L E« 541
until he appiove of them; and hence, if the workman ihouki fell
them to another befort he had ihewn them to this perfoo, it is hiv-
fuL— All this is approved^
Whosobvbr befpeaks goods of a workman has the option of tak- and mty be
ing or rejeding them, becaufe of his having purchaied articles which dS^raro^,
he has not feeu. — The workman, however, has no option, mfbmuch *P^ ^^*
that the perfon who befpoke them may, if he pleafe^ take them from ^'^^
him by force.— -This is recorded by Mobammd^ in the Maifiott and
is the moft authentic iD@annc^ — It is related howevert as an opinioa
of Hmtefa^ that the workman alfo has an opt ion, inafinuch as it is
impoflible for him to furnifli the articles befpoken without detri«
ment, fince m order to make boots j (for inftance,) it is neceflary
to purchafe hides, dfid infiruments to cut them, and this is not free
from lofs« It is related, as an opiniofn of Jioo Toojafl that neither
party pofiefles an option ; for the workman, as being the JiUer^ is not
entitled to an option,---in the (ame nunner as, ia a fale of goods
unfeen, the feller bath no option ; and with regard to the perfon
who befpeaks the goods, if an optioa were ^ven to him it wouU
be an injury to the ieUert fince if he rqeAed the goods other peo«>
pie mi^t not chufe to purchafe them for the value; — as where, for
infbnce, 9 commander of high rank befpeaks goods, and the workman
accordingly makes them ia a ftyle fuitaUe to his rank, and he after-^
wards rgeOs them;-— in which cafe the cosunoa rank of people
would not purdiaie them for their value^
A CONTRACT with a'workman for the fumiihing* of goods is not ab enme.
lawful with refped to fuch articles as it is not cuftomary among man-- ^oft^bm
kind to befpeak^—as cktb (for inftance,) becaufe the beipeaking of ^^"^^^i^
-goods is in itfelf unlawful, and is therefore admitted by the law only ttbaoc cn^
§0 iar as it is authorised by the cuftom of mankind, which is confi- fy^jTi^^oC
dered as a neceflary inftrutnent of its legality.— It is alfo reqaiiite, in ^^^*
befpeaking articles authorized by the cuftom of mankind, to defcribe
their
54« SALE., Book XVI.
*thcir quality^ in order to enable the workman to fumifh them ac-
cordingly ; and unlefs fuch de(cription be given, the contract is un-
lawful.—It is to be obferved that the prohibition of i ftipulation of
a period for ddiveryt as recited in the firft of thefe cafes relative to
contra^s of this ktudt proceeds upon this ground, that if a period
were (lipulated in a coutraft.fbr the fupply of work of articles autho-
rized by cuftom, and the price paid immediately to the workman, it
would then become a SUlhn fale in the opinion of jibpo Taofafi in op-
pofition to that, however, of the two dilciples, who hold that it
would ftill remam merely a contradt for the fupply of work : — ^but
if the period (hould be (lipulated in the cafe of articles not autho-
rized by cuftom, it then becomes a SilHm (ale in the opinions of
all our doAors.— -The reafbning of the two difciples in fupport of
their opinion in the firft cafe is that the word J^^find literally means
a nquifithn of nmrknumfl^^ and ought of confequence to be ufed
in that fenfe, fo long as the context does not determinate it to
fome other fenfe.
Objection.— The ftipulation of a period is a context which
clearly indicates that Ififini is to be taken in a (enfe different from
its littral meaning ; and that it is to be underftood as implybg a &IBm
agreement ; otherwife what need for the (UpuUtion of a period ?-~It
would therefore appear that in fuch a ca(e it aofiounts to a SiUm.
Reply. — The (Upuhtion of a period, as in the firft cafe, is not a
convincing argument that the word IfifinA is not to be taken In its li*
teral fenfe, but ought to be underftood as implying an agreement of
^iinm\ becaufe the ftipulation of a period may be fuppofed to have
been made with a view to expeJUim^ — and it may be fuppofed that
the objedt of the be(|)eaker, in fixing a period, was to prevent delays :
ill oppofition to the cafe of things not authorized by cuftom, (or there
a contraft for a fupply of workman(hip, as being invalid, is conftrued
to mean a SiUlm fale, which is lawful.
^— — The reafbning of Haneefa is that, when a period is (Upulated,
it fixes the fubjcA of the (ale to be a debty becaufe periods are not
fixed
Chap. XL SALE. 543
fixed except with regard to debts; — ^and the.fubjed: being proved to
be a debt, the conflruAion of the contract into a SiUim, fale is eafy and
natural. It is .therefore conflrued to be zSiUim fale, which is lawful,
in the opinion of all our dodors, beyond a doubt ; whereas, there i$
a doubt with refpeA to the other, fmce pra6ltce means the deeds of -
all people of all countries, and this can never be known with cer-
tainty: as, therefore, the legality of a Sillim fale is certain, and prac-
tice is not free from doubt, it follows that It is preferable to con (true
a contract for a fupply of work to mean a contra^ otSilUm.
SECTION*.
MZSC£LLAKB0V« Ca^ES.
It is lawful to (ell a dog or a hawk, whether trained or other- Itbhwfdco
wife. It is related, as an opinion of jiboo Too/of^ that the fale of a dog ^k^!^
diat bites is not lawful; — and Sb^fei has faid that the fale of a dog is
abfolutely illegal; becaufe the prophet has declared ** the wages of
•« ivbortdom^ and the price of a dog^ are in the number of prohibited
" things \'' and alfo, becaufe- a dog is aftual filth, and is therefore
deferving of abhorrence ; whereas the legality of fale entitles the fub*
je6tof it to refpeft; and is confequently incompatible with the nature
of a dog. The arguments of our doftors upon this point are twofold.
First, the prophet has prohibited the fale of dogs, excepting fuch as
arc trained to hunt or to watch. — Secondly, dogs are a fpecies of
property, inafmuch as they arc capable of yielding profit by means of
hunting and watching; and being property, they are therefore fit fub-
jeAs of fale ; in opppfition to the cafe of noxious animals, fuch zsfnakes
otfcorpionsy which arc not capable of yielding ufc. With refpeft to
the
544 SAL E. Book XVI.
the tradition quoted by Sbafti^ it applies to the infancy of Iflim^ at
v^hich period the prophet prohibited every one from eating the price of
a dog, in order to reftraiu men from a fondnefs for dogs, as it was
then a cudom to keep dogs for breed, and to fufFer them to fieep on
the fitme carpet. But when this cuflom fell into /llfufe, and men ab-
ftained from a fondnefs for dogs, the prophet ordained the fale of them*
With refpea to the affertion of Shafei^ that dogs are aBuat filthy it is
not adniitted ; but admitting this, fiill it follows that the eatings and
not ^z fitting of them is unlawful.
ItbMCbv. THBiale of wine or pork is not lawful; becaule» inthefime
wMor/iri. nianner as the prophet has prohibited the tailng or drinking of theict
io alio has he prohibited xhtfale of them, or the eating of the price of
them ; and alio, becaufe thefe are not fubftantial property With re-
gard to Mujfubnans^ as has been before frequently expUined.
J^^A ZiMMEES, in purchafc and fale, are the fame z&MuJfulmansi —
T'-f-iifj it becaufe the prophet has faid ** Be regardful rfTAiiiiax%^ far tbey are
^^ ** entitled to the fame rights^ and fubjeR to the fame rules with Mus-
*^ suLMAKs;*'— and aifo, becaufe* being under the fame neceflities,
in the traofaftion of their conceraSt as Muffulmans^ they (land in need
of the fame iomiunities. They are therefore the iame as Muffubnans
with reipeA to purchafe and fale,— exceptbg, however^ in the fale
of wine mdpori^ which is lawful to them, as the fale of wine^ bj
them, is confidered ia the fame light with that of the crude juice of
the grape by the Mufu/mans; and the fale of pork by them is equi-
valent to that of the flefh of a goat hyMuJulmans; becaufe theie
things are lawful in their belief, and we are commanded to fufier
them to purfue thdr own tenets. Moreover, Omar commanded
his agents to empower the Zimmees to fell wine, taking from them
a tenth part of the price: a proof that the iaie of wine is lawful among
them.
Chap. XT. SALE-
S*5
If a perfon (ay to another^ ** fdl your (lave to a particular perfon a periba in-
<^ for one thoufand dirms^ on condition that I be rcfponfiblc to you for oIlIcftpfcD
** Rvc hundred Jirms of the price, iudepcndant of the one thoufand h»propertjr
<* iGrnu^^^ and the faid perfon aft accordingly, it is valid, and he is ^Hbo^byof-
entitled to one thoufand dirms from the purchafer, and to five hundred (^'I"^ *■ ^
dirms from thefccurity; whereas, if he were fimply to fay, *• I will indaboveiiie
** be rcfponfible for five hundred Amis^^ without mentioning the E^ITfiMefof
words ** of the price," the /cller is, in that cafe, entitled only to the ^^^^ ^'-
one thoufand Smu from the purchafer, and has no claim on the ankis thit
furcty.— -The rcafbn of this is, that an increafe in the price; or in ^^Sd^
the wares, is lawful, according to all our doctors, and is joined femin^ %
to the original contraft, (as has been already explained,) being only ^^
an alteration of the contrad from one lawful quality to another lawful
quality ; — and as it is lawful for the purchafer to make an alteration in
the price, although he be no gainer in other refpeds by it, (as if he
fhould increafe the price, notwithfbnding it be adequate to the value
of die goods before the increafe,) fo alfo it is lawful for a flranger to
lay himfdf umder an obligation for an increafe of price, although he
have no advantage in other refpe£ls ; — in the fame manner as the con-
iideration for Kboola becomes incumbent upon a wife in virtue of her
aflent to the Khoola^ although fhe receive nothing in exchange, for
woman is originallyyr^f^, and the procurement of a divorce adds no-
thing to her original freedom. It b eflenttal, therefore, to the va-
lidity of the feller's claim upon this peribn, that the increafe be op-
pbfoi to the goods by the fpecification of the words ^^ of the price;**
and if thefe words be omitted, the declaration or fiipulatton is of no
account.
If a perfon, having purchafed a female flave, malce her over in a rcmife
marriage to another before fcirin, aad that other cohabit with her, JJjJ^f^JJSi^
fuch marriage is lawful, as having been concluded in virtue of the au- marriagf by
thority of the proprietor:-<Lnd it «lfo determines the feizin of the wuiimhii
purchafer. If, however, the. huftand fhould not cohabit with her, ^^|^?J[*
VolJL 4 a the *
54^ SALE. BooKXVr.
the marriage does noty in that cafe, determine the feizin according to
a favourable conftru6tion of the law«— Analogy, indeed* would ftig-
geft that the purchafer becomes feized of the flave on the inftant of
the marrbge»contra£tt (ince, in confequence thereof, the right of
property over the flave is rendered virtually defe&ive;— it would
.therefore follow that the feizin becomes eftabliflied as an effeft of the
contrad, in the lame manner as in the cafe of an actual de£e& occa-
(ioned by any aA of a purchafer. — ^The i^eafon for a more favourable,
conftru^ion, on this occafion, is that any ad by which an aSua/ de-
fed is occafioned inff^rs an exertion of power .over the fubjed, which
confequently eftabliihed a fdzin of the fubjed: but an ad which-
merely induces a virtual de£c& doea not admit of this in&rence, (b as*
to eftaUiih feizin.
glj^^^y Ir t perfoQ, having purcfaaied a flave, fliould afterwards abfeat
mcariog. hsmTeif without taking pofleflion, or paying the price, and the feUer
uUtiTpo^^ prove by witnefles that he had fold the flave to the abfentee, in that
^Bm^Ui cafe, provided the place of hb retirement be known and afcertained,
m^aT the flave cannot be re-fold on account of the exigences of the feUer,
f^^ for the(e may be otherwiie anfwered, and fuch fide would deflroy the
right of the firft purchafer: — but if the abfentee^s place .of retireitient
be not known, the flave may be re-fold, and the debt of the pur-
chafer to the ieller paid by means of the price; for the feller has
proved, by witnefles, that the flave is the property of the purchafer,
and that he has a ctsum upon, him; and confequently, when the place
of retirement of the purchafer is unknown, it is incumbent on the
magiflrate to dired the flave tt> be fold for the fatisfadion of the feller,
which could not otherwiie be obtained ;— in the fame manner as where
a pawner dies before having releafed his pledge, in which cafe it is
fold for the difcharge of his debt to the pawn^bolder. — ^It is othcrwife
where the purchafer difappears after feizin, for in this cafe the flave
cannot be fold to anfwer the right of the feller, fmcc his right is not
particularly conucdcd with the flave, as he, in fuch a circumfbnce,
flands
Chap. XI. SALE. 547
ftands in the fame predicament with the other creditors.— It is to be
obfcrvcd that, in cafe of the flave being fold on account of the feller,
if any thing remain after the difcharge of his claim by means of the
price, the feller muft keep fuch remainder in behalf of the purchafer,
to whom it is due as an exchange for his property: — ^but if the price
(hould not fuffice to anfwer bis claim, he is in that cafe entitled after-
wards to the remainder from the purchafer. — Suppofing there.be two or of m« of
purchafcrs, and only one of them difappear, the one that is preient is ^ P*"^*
entitled to pay the whole of the price of the (lave, and to take com- appearing
plete pofieffion of him; and if, in this cafe, the other purchafer af- ^[n^circiim-
terward appear, he is not entitled to receive his fiiare until he fhall fiaace.
have paid to his partner the price of it. — ^This is the adjudication of
Haneefa and Mobamnud. Aboo Toofaflizs (aid that, if the prefent pur-
chafer pay the wbok of the price, dill he is only entitled to take pof-
feflion of his own (hare, and that, as the payment of the debt of the
abfentee was a gratuitous and unfolicited a^ in his favour, he is not
entitled to recdve it from him, (ince he paid it without his authority.
Bciides, as the prefent purchafer is, as it were, a fir anger- y/\i\i re-
fpeft to the abientee, he is not entitled to take pofleifion of his (hare.
Thereaibning oi Haneefa is that the prefent purchafer, in making
payment on behalf of the abfentee, afted from necejfity^ and not from
choke \ becaufe it wastiot otherwife poflible for him to enjoy his own
ihare, fince, having purchafed the flave jointly with the other by one
contract, it was impoilible for him to detain him in his pofleflion
whilft there exifted the claim of another with re(pe£V to part of him.
Now whoibever pays the debt of another from necellity is entitled to
repayment, notwithilanding his having a<Sted without authority; as
in the cafe of the loan of a pledge ; for if a per/on lend to another
fomething in order that he may pledge it, and that other having
pledged it accordingly, the lender afterwards, from a ncceiiary want
of the faid thing, redeem it from the pawnee, he is, in fuch cafe,
entitled to repayment from the borrower, although he have redeemed
the pledge without authority from him. — Since^ therefore, the pre-
4A 2 fcnt
54« SAL E- Book XVI.
foit purchafer, in the cafe in qucftion, has a right to repayment from
the abfentee^ it follows that be has alfo a right to detain in his pof*
feifion the Hiare of die abfentee until he receive payment of the fum
due to him; in the- fame manner as an agent for purcfaafe^ who pays
from his own property the price of the goods purchafed on behalf of
his conftituent, is entitled to retain pofleflion of them untiL he receive
payment of the price from his conflituent*.
G*gf gold jp a peribn purchafe a female flave in exchange for one thoufimd
lm» iadc mjk6h of gold and (ilver,: — ^&ying ^ I purchafe this flave for one thou<»
Om^i^ ^* ^d nafkiU of gold and filver/'' in that cafe it is incambent on him
J^*^*- to pay five hundred im/kihoi gold^. and five hundred mJkBh of filver j
for the reference of the myk&l to the gold and filver having been in an
equal degree applicable to each» an equal proportion b the payment is
of confequence incumbent.!— If, oa the other hand, the purchafer
fhould fay, *^ I have purchafed this flave in exchange fisr one tfaoufand
^ of gold, and filver,** in this cafe he mufl pay five hundred mJkSkx£
gold, and five hmidred £rmi of filver, (of iht^fiptimal weight;) for
die term one tboufand having been referred to the gold and filver ia
a general manner, it is therefore confer aed to apply to the weight in
common ufe with refpeft to. each in particular-
Tlieitedpt Jp a perfon indebted to another in die amount of ten dhns^ix
iafleaddW good fort^ afterwards pay him this amount in an inferior fpecies, and
^loiiforcx- the other, being ignorant of this drcumfhnce^ receive them, and af--
P«»^»"* terwards expend them, or lofe them, in. this cafe the debt is com^
charge. pletdy difcharged, and the creditor is not entitled to any ccfmpenfa*-
lion for the difierence of quality. — ^This is according to Haaeefa and*
Mobamuud. — Jlbo$ Tcofafhz^f^^ that in this cafe the creditor is en^
titled to return to the debtor a tantamount of ^mj of the fort he re-
ceived^ and to demand from him ten.^rmr of a fuperior fort, to which
iie has a right; bccaufe, in the fame manner as his right relates to
7 the
Chap. XI- S A L E. 549
the fubjiance of the £rms^ fb alio is it eftahliflied in the quality. A con*-*
iervationof^iir^ right is therefore indifpeniable: but as the conferva-
tion of the fectmd right, by means of an allowance in exchange for
the difference of quality, is imprafticable, (fmce quality in homoge-
neous articles is of no relative value,) this mode muft neceflarily be
adopted. The reafoning oiHaneefa and Mobammei is, that the bad
£rm are of (he iame fpecies with the good; and that after the re-^
ceipt and expenditure^, or deftru^lion of them, the debt is difcharg^ ;.
becaufc the claim which remains relates to quality, and this is impof-
iible to fatisfy by the granting of a compen&tion, inafmuoh as quality
in itielf bears no value.
If a iMrd incubate its eggs in the land of a particular perfbn, the AitkleMpft
right of property over the brood does not, in virtue of fuch incuba- SoS be?"
tion, veft in the proprietor of the ground; on the contrary, rfiey re- 2JJ!^J^
main free to the perfoa who fliall firft (eize them. — The law is alfo the sStml/UMm.
£une with refpeft to eggs which a bird lays upon any particular
ground.— So alio, if a deer (hould fleep for a night in a fidd^ it does
not by that z& become the property of the proprietor of that field ;
on the contrary, it remains free to whomibever it may be caught by.
The reaibn of this is, that both the young ones and the deer are oon«
iidered in the nature of ^^mr, and as fuch are free to the peribn who
catches them, although no fbatagem be ufed for that purpoie^-*
and the fame,, alfo, of eggr^ whence, if a Mobrim fhould either
break or broil them, he is fiibjeft to make expiation.r— More-
over, the proprietor did not purpofely prepare his land that the \kA
ihould lay or incubate her eggs,, or that the deer fhould ileep- upon
it. — It is therefore the fame as if a perfoa fhould fpread out his
net for the purpofe of drying it,, ia which cafe, if any game fhould
£aU into it, it would not become immediately the property of the pro-
prietor of the net, but would continue neutral until fome one feize it;—*
or, as if game ihould come into a houfe, in which cafe it does not
become the immediate property of the proprietor of the houfe ;«— or,
as
550 SALE Book XVI.
as if a pcrfon, fcattcring fugar or dirms (for inftance) among the
people, (houid chance to throw thcfe into the clothes of fotne one; in
which cafe the property does not immediately vefl: in that perfon,
until he wrap it up or prepare to feize it. — ^It it otherwife with refpeft
to honey ^ for the property of it vefts in the proprietor of the ground
ia which it is gathered together; becaufe honey is confidered as the
produce of the ground, and hence the proprietor of the ground ob-
tains a property in it as a dependant of the foil, in the fame man*
ner as in the trees which grow in hia land, or in water which flows
through it.
HELATjf.
( S5i )
H E D A r A.
BOOK XVII.
Of S I R F SALE.
BE £ YA S I R F means a pitn (ale, of which the articles oppofed jhtniiim «f
' in exchange toeach other are both reprefentatives of price. This ^'V^^
is termed Strf, becaoie Siifmcuisz remnaL, and in this mode of (iile
It is neceffiuy to-iemoye the articles oppofed to each other in exchange
from the hands of each of die parties, refpe£tively, into thoie of tne
other. Shfaifo means a fuperwrity ; and in thb kind of iale a fuperi-
ority b the only ol^ed; that is, a fuperiority of quality, ^fliion, or
workmanfliip ; for gold or filver being, with refpeft to thar fubftance,
of no tife, are only defireable from fuch fupcriority.
The
554 S I RF SALl^S. Book XVIL
an abfiluie manner, and not to the ten dinns of the Sir/fzle in a^r-
ci/fc manner. Our doctors, on the other hand, argue tl\at pnccj hi a
Syf/falc, is alfo a fubjcct of the falc ; becaufe, as every fale muft have
a fubjcft, and as the articles, in a Sir/Cdlc^ are both reprefcntatives of
price, without any of them having a preference over the other, it fol-
lows that either of them is the fubje£l ; and the fale of the fubjeft
previous to the feizin is unlawful.
Objection. — ^Thc confideration, in a &V/"fale, is a reprefenta-
tive of price, and therefore of an undeterminate nature; whence it
would follow that it cannot be confidered as the fubjedt^ (Tnce the/uA-^
jeSl of a lale is required to be deierminate.
Reply**— The fubjeA of a fale is not required to be determi-
nate; for, in a SiUim lale, the thing on account of which the advance
is made is the fubjeA of the fale; but (till it is undeterminate.
Gddmavbe The fele of gold for filver, by conjecture*, is lawful, becaufe
^^w^caurei ^q^ality, in a fale of this nature, is not required.— It is unlawful,
fwwSd^tor ^^^^^^^» to fell ^oA/ for ^oA/, or Jlher iov Jihcr^ by conjefture, be-
ftlver for fil- caufe in fuch fale there is a fufpicioa of ulury.
vcr.
Jn ihe (ale of If a pcrfon fell, for two thoufand Mijkdls of filver, a female flavc
ingrnjljidor ^^^^^^ '^ ^^^^^ ^^ One thoufand Mj/kdls, and on whofe neck there is
Civcr uponi% a coUar of filver equu^alent to one thoufand Mi/kils of filver, and the
down is op- purchafer having paid a thoufand Mijk&ls of filver, ready money, the
£dd^ur filvcn P^^^^ ^^^ fcparate from the meeting, fuch payment is confidered to be
the price of the colhr, becaufe the feizin of fo much of the price of the
whole was a neceflary condition, as the fale in that proportion was a Sitf
fale; and hence it is reafonable to conclude that the feller paid the exaA
amount of which he knew the feizin to be indifpenfibly necef&ry. In the
fame manner, alfo, if he purchafe the faid flave with the collar, for two
thoufand Mtjk&h of filver, of which one thoufand is prompt and the
other thoufand poftponed, the prompt payment is confidered as
^ That is, by a loofe undeterminate cftimate.
the
Book XVII. SIRF SALES,
the price of the collar, becaufe the ftipulation of payment at a future po-
riodnot being lawful in a iS/V/*fale, and being permitted in the fale of a
flave, it is reafonable to fuppofe that the parties, in contracting the fale,
and flipulating the diftant period, intended to proceed according to law.
— If, alfo, a perfbn fell, for one hundred dirnts^ a fword, of which the
filvcr ornaments amount to fifty <//m/, and the purchafer pay immedi-
ately fifty dirtfu of the price in prompt payment, fuch fale is lawfuL
and the payment made is confidered to be for the price of the orna-
ments, although the purchafer may not have fpecificd this. — ^The
fame rule, alfo, holds if the purchafer fay to the feller, ** Take thefe
*• fifty Jinm in part of the price o( botb^^^ (that is, of the ornaments
and fword,) becaufe two things are fometimes mentioned where only
one is intended, and this fuppofition is here adopted from the proba-
bility of it. If, however, the parties fcparate without a mutual feizin,
the fale is null with refpefl to the filver ornaments, becaufe of its
being in that degree a SirfCzlc^ to the validity of which mutual feizin
is eflential :— or, if the fword be fo framed as not to admit a fepara-
tion of the ornaments without fuftaining detriment, the fale of it
is in this cafe al(b null, becaufe fo fituated the feparate fale of it is
not permitted, in the fame manner as it is not permitted to fell the
beam of a roof. — If, on the other hand, the fword admit of a fepara-
tion of the ornaments, without detriment, the fale, in the manner
above-mentioned, is valid with refpeft to the JivorJ; but with refpedl
to the ornament it is null. — It is to be obferved that the fale of a fword
with filver ornaments in exchange for £nns is lawful only where the
filver of the Jlrms exceeds that of the ornaments ; and that, if the
filver of the Jinns be either barely cjua/ to, or U// than, that of the
ornamcnts,^r, if it be not inawn whether it be more or lefs, the fale
is invalid. The reafon of the invalidity in cafe of its not being known
whether it be more or lefe is, that the probability is in favour of its
being invalid ; fince there are two caufes of invalidity, namely, ejua^
Uty and inferiority ; whereas there is only one caule c^ validity, viz.
Jiiperiority.
4B 2 If
5i^
55^ SIRF SALES- BookXVU.
In die por- J? a perion, having (bid to another a filver veflely (hould receive
if thc%arties p^ynent in part, and both parties then feparate, in that cafe the fale is
feparate be- imii ^Jth tefpefi to the amount remaining to be paid, but valid in the
of the full amount taken poiTeflion of; and the parties have each a fliare in the
£^5sd**oniy* property of the veffel;— becaufe this falc is Sirf^ or furcj with regard
*"rtion*^ia- ^^ ^^c whole of the fubjcfl, and confequently valid in that degree in
which the conditions of a pure fale have been obferved, and invalid ia
the degree in which they have been omitted ; for the invalidity, in
this cafe, is not ejfcntial^ but accidental^ inafmuch as the fale was
valid in its formation, and afterwards, in confequence of the fepara^
tjon of the parties after the receipt of a part^ became invalid with re*
lation to part of the fubjed ; and hence the invalidity, which is acci-
dental, does not operate upon the pact in which all the conditions of the
fale have been obfcrved.
or. if it be If a pcffon fcU a filver veffel which afterwards appears to be in
bcirpm the P^ ^^^ property of another, in that cafe the purchafer has the op-
pfo?j|«y <^ lion dther of retaining a right of property in the remaining part
^hafer of the vcffel, or of cancelling the bargain entirely; becaufe part-
"^olft thebar. ^^^^V "* ^ ^^^^^ ^^ equivalent to a blemijb in it.
gain:
(but this does If a perfon fell an ingot of filver, and part of it afterwards
«fpea*\ran appears to be the property of another, the purchafer is in that cafe
^X^O conftrained to take the remaining part at a proportionate price :
— ^and he is not allowed an option, in this inftance, becaufe the
divifion of an ingot of filver does not in any fliape injure it*
Where the The fale of two dirnis and one Jecnar^ in exchange for two deenars
«Ich%<S *"^ ^"^ ^''^» ^^ valid; becaufe in this cafe the £rms are confidered as
coofififor/wt oppofcd to the deenars; and as they are of a different genus, an inc-
iw7,^he Se" quality in the proportion is therefore admitted. SAqfei and Zjfer main-
rit^bSrS ^^ ^^*^ *^*^ ^*^ ** unlawful; and they have difagreed in the fame
manner with refpeft.to the legality of the fale of one Kcor of barley
and
BookXVII. SIRF sales. 557
and one Kopr of wheat m escchaoge for two Koors of wheat and two
Koors of barley. Their reaibning in fupport of their opinion is that
the feller and buyer have oppofed one total to another total ; and this
requires that every feparate part of the one be oppofed to tvtry fcpa-
rate part of the other^ (in an imkfinite and not a iefinite manner ;) —
now in the oppofing of each genus, refpe£tively, to a different genus,
a modification is induced in this particular, which b not lawful, not-
withllanding fuch a conftru£tion of the iale be the means of rendering
it valid. — In the fame manner as where a perfon, for ten iirms^ pur-
chafes a filver bracelet weighing ten ilrms^ and again, for other ten
dlrms^ purchafes a piece of cloth, and then difpofes of both articles .
together, by a Mooribibat contract, (fuppofe) for thirty dirms^ in
which cafe the Moordbibat iale is invalid, although it be polTible, by
fuppoiing the whole of the profit to be exadled on the clotb^ to ren-
der it valid: — or^ where a perfon purchafes a flave for one thoufand «
£rmsj and, previous to the payment of the price, fells him, along
with another, for fifteen hundred <4>ww, to the perfon from whom
he had bought the flave for one thoufand dirmsi for in this cafe the
fale is invalid in relation to the (lave of a thoufand dirm^ becaule
there is a poilibility that the other- (lave may have been worth
more than five hundred dirmsi and fuppoiing this, it neceflarily
follows that the feller has purchafcd the flave for a fmallcr price
than that for which he formerly fold him; although in this
cafe it be pofTible to render the Iale valid by fuppofmg the one.
flave to be oppofed to one thoufand dtrms^ in a fpecific mani-
ner, and the other to five hundred dinns^ fo as to remove the
poiTibility of the feller having received him at a fmallcr price than that
for which he had fold him :— -or, where a feller, having exhibited
two flaves, of which cm only is his property, fays to the purchafer,
** I have fold to you one of thefc flaves,*' m which cafe the fale is
invalid, notwithftanding it be poflible to render it valid by fuppofing
that the feller meant his own flave :--or, where a perfon fells a Snn
and a piece of cloth for a di'rm^nA a piece of cloth, and both parties
then feparate without making fciltin,— in which cafd the fale is in-
valid
558 STRF SALES. Book XVII-
valid, although it be poflible to render it valid by fuppofing the dirms
on each fide to have been oppofed to the cloth of the other : — ^for, in
all thefe cafes, although there be a poflibility of rendering the fales
valid, dill they remain invalid, for the reafon already alledged. The
arguments of our dodors are, that the oppofition of a total to a total,
provided it be in an abfclute manner, (that is, without any particular
fpecification,) admits of this fuppolition, that the feparate parts are
oppofed to the feparate parts ; — ^as in the cafe of an homogeneous fale,
for inllance, /uch as a fale of two dinns for two Jinns^ in which the
unities on each fide are oppofed to thofe on the other refpe&ively;
whence if each of the contra£king parties refpeftively take me Jirm^
and they then feparate from the meeting, the fale is valid to the
amount feized ; — whereas, if the feparate parts of the fubjed of the
fale, inftead of being oppofed to each other in a tkfinite manner, fhould
be oppofed to each other in an indefnlte manner, the fale in the amount,
feized would not be lawful, fince it mufl neceflarily follow that the
amount feized by each of the parties would fland oppofed, indefinitely,
to what was feized and what was not feized. — It is therefore evident
that the oppoHtion of a total to. a total infers the oppofition of the uni-
ties rcfpeftively ; and as this, to give validity to the contra£k in quef*
tion, mufl be in a definite manner, it is prejumedio be fb, in order
that the contract may be valid. — With refpect to what Ziffer and
Sbafn urge, that ** a modification is induced with regard to the re-
'* quifitcs of the contract:,** we reply, that a modification is induced
with relpeft to the quality of the contra£l, but not with refpc& to the
original requifites of it, becaufc the original requifite of the contraft is
that a total fhall be transferred in exchange for a total, and this con-
tinues unaltered. — Analagous to this is a cafe where a perfon fells
the half of a flave, fhared in an equal degree between him and an-
other ; for in that cafe the law fuppofes the fale to apply to his own
ihare, in order to its validity. The cafes enumerated by Ziffer and
Sbefeu on the contrary, are not analogous to this in queflion. — The
firfi caie (naaidy, that of a Moorikibat &le) is not analogous, as it is
uot poflible to ftippofe that the whole of the profit is eudted on
the
BookXVIL SIRF sales. 559
the clotb^ for, if fo, the fate of the bracelet would be rendered a
iale of friend/hip^ and hence an alteration would take place in the
eflenceofthe contrad. The y^rW cafe, alio, is not analogous, be-
caufe the mode there propoled for legalizing the (ale is not determinate,
fmce in the fame manner as it is pofllble to conftruc the fum oppofed
to the flave to be one thoufand £rms^ fo alfo is it poflfible to conftrue
it to be mare than one thoufand, in every different gradation, until it
amount to one tlioufand four hundred and ninety-nine dirms : in op-
pofition to the cafe in queftion, where the mode propofedis determinate.
The /A/Winftauce, alfo, is not analogous, bccaufe the force of the falc
there refts upon an indefinite object, which is incapable of being the
fubjeft of fale; and as indefnity znAfpecif cation are of oppofite import,
it is impoiTible to cdnftrue the fale as applicable to any fpecific article.
In the lajl iudance, on the other hand, the fale i$ originally valid,
and becomes otherwife from an accident, namely, the reparation of
the meeting : but the prefent queftion relates to a contract in its origin
nal formationy and not to any adventitious circumftances.
A SALE of eleven dirms in exchange for ten dirms and one deenar^ and fo alfo,
is valid : — ^and in this cafe ten dirms are confidered as oppofed to Jidc^^^one
ten £rms^ and the remaining dirm to the (ingle deenar; becaufe in fi^«#confifts
a fale of dirms for dirmr equality is indifpenfible, and it is therefore namber of
reafonaUe to fuppofe that fuch was the intention of the parties ; jiciw!'^!^.
and with refpeft to the remaining part of the fale, namely,, the op- <>« ^ ^^^'»
pofition of one dirm to one deenar^ equality is not requifite, as they are number, of
not homogeneous. i^ (ptck%.
If, in a iale of gold for gold, or filver for filver; the AibjeA', A deficiency
on one part, be inferior in point of weight to the other, and there one fide, b
be joined to the inferior fomething equal in value to the deficiency £5^®^„,
atifing from the difference of weight, in this cafe the fale is valid, be nude op
without being abominable. If, on the other hand, the value of the 2L'ofJiV*
thing fo added be not equal to the difFcrencc, ftiU the falc is valid, Sjl^^^nJ!
but ontble value
s6o SIRF SALES. BoocXVIL
but abominable. But if^ on the contrary, the additional thing bear
no value, (fuch as JuJ^^ for inftance) the fale is not valid« becaufe of
its being ufurious, inafmuch as nothing is oppofcd to the difference
of the weight.
A ^f^ vMj If a perfon, indebted to another to the amount of ten JirmT^ fell
in t?ecottrfe ^o bis Creditor one Jtenar for ten Jirms^ and having delivered thcJcMor
cfzSir/Uc. iQ j^ijjj^ jj^^ parties then commute the ten Jirms which they recipro-
cally owe to each other, it is bwful. This cafe, however, fuppofes
the iale of the deenar to relate to ten Jirms in an abfoluie manner, and
not to the debt.
Ontfmrt and TiTS (alc of one pure dirm and two bafe ones in exchange for two
inay bf fold' P^**^ ^^^'^ ^^^ ^^^ ^^^ ^°^» ^^ lawful. — By z baft dirm is to be un-
ff» two hajk derftood, fuch as pafles amongft merchants, but is reje£led at the pub-
oae/r«r«. j.^ treafury. — The reafbn of the legality, in this inftance, is that an
equality according to «;^/]^i&r is eftablifhed, and the quality of ^^r//^
is of no account.
Deferimion DiRMs in which ^c JthcT is predominant are confidered as fil-
^^^.^""^^ ver, and deenan in which the gold is predominant are confidered as
baiecoiiiige. gold\ and a difference in the proportion with reipeft to them in a
fale is confequently unlawful, in the fame manner as in the cafe of
pure Mrms or deenan. Hence it is unlawful either to fell bcfe money
in exchange for pure^ or bafe in exchange for bafe^ unlefs upon a
footing of equality in regard to weight.— In the fame manner, alio,
it is unlawful to borrow bafe money except according to weight : fa*
dirms and deenars^ in conunon, tsc not free from a mixture of bafe
metal; becaufe gold and filver do not receive the impreflion well
without a mixture of it, and it is fometimes innate in them.
If, however, in £rm and deenars^ the bafe metal predominate,
they are not, in effcft, dirms 2nd Jecnarsj becaufe the law adverts to
the
BookXVIL SIRF sales. 561
the predominancy. Hence if a perfon (hould purchafe pure filver in
exchange for Jirws of that nature^ the law is the fame as has been al-
ready ftated in the cafe of a fword with filver ornaments. It is law-
ful, moreover, to fell dirms and dcenars of this nature in exchange
for others of the fame kind, at an unequal proportion ; for as thefc
confift of two different materials, (namely, gold and bafe metal, or
fiher and bafe metal,) one genus may therefore be oppofcd to an-
other.— ^This, however, is neverthelefs a Sirffzle^ becaufe of tliere
being an oppofity)n of gold or filver on each fide; and hence mutual
feizin in the meeting is neceflary : and in the fame manner as feizin
of ihtjiher or gold is neceflary in the meeting, (b alio is that of the
bafe metal, becaufe a feparation cannot be effeded without detriment.
— ^The compiler of the Hedaya obferves that the modern lawyers of
his country* do not pafs decrees agreeably to this do£lnne; for as
bafe money is there much in ule, it follows that if the fale of it at an
unequal proportion were permitted, the door of ufiiny would thereby
be opened.
With refpeft to money in which the bafe metal predominates,
it is to be remarked that, if it pafs current by weight, purchafe, fale,
and loans are tranfa£ted in it by weight. If, on the other hand, it
pafs current by tale^ all nutters aretranfaded in it by talc. — ^If, how-
ever, both modes prevail, it is in that cafe permitted to follow either;
for cuflom is decifive with refpeft to matters of this kind, provided
they be not otherwife determined by the ordinances of the l a w.— .
It is alfo to be obferved that money of this kind, whilfl it continues in
ufe, is a reprefentative of price, and is therefore incapable of -being
rendered determinate : but if it fhould not be in ufe, it is confidered
as other wares or articles of merchandize,, and is therefore capable of
being rendered determinate.
• MmwT ttl Nlbr.
Vol. II. 4 C If
56a SJRF SALES- Book XVU.
If Jfrms be adolterated to fuch a degree as to pafs current with
JimCf but not with otbcrs^ they are equivalent to Zejf or bafe £rms.
Hence, if a perfon enter into a contrad for fbmething in exchange
for a hundred fpeciBc dirms of this defcription, the contract does not
relate to thofe fpecific £nns in particular, but to a fimilar amount of
bafe dtmis^ provided the feller were aware of the circumftance ; — but
if other wife, it relates to a (imilar number of pure dirms % — ^becauiein
xhzfrji cafe the aflcnt of the feller to receive the bafe fpecies is efta-
bli(hed by his knowledge of the bafenefs,—- whereas in tht JicwJ cafe
his ailcnt is uneilablifiied becaufe of his ignorance of the bafenefs.
A iale for If a perfon purchafe wares in exchange for bafe dirmSf and, pre-
ni»Uf Ser ^'*^^^ ^^ ^^ payment of them, they (hduld fall into general difufc,
!S*^f«" "^ ^^^* ^^^ *^^ ^^^^* according to Haneefa^ is null, Aboo Toofaf
the penoTof maintains that it is incumbent on the purchafer to pay the value
liaymcnt. >vhich thcfe dirmi bore on the day of falc. Mohammed^ on the other
hand, alledges jthat it is incumbent on him to pay the value which they
bore on the laft day of their currency. The arguments of the two
difciplcs are that the contra6t in itfelf is valid; but the delivery of the
dirnti becomes imprafticable from the difufe of them i % circumftancc,
however, which docs not induce invalidity ; — any more than where a
perfon purchafes an article £qt frejb dates y and the fcafbn for thofe
pafles away; — in which cafo^thefale is not invalid; and fo al(b in the
cafe in queftion. — ^As, therefore, . the contraA is not invalid, but (till
endures, it follows that, according to Moo Too/of^ the value the dirms
bore at the timeof thefale is due, becaufe from that period refponfi-
bility for them takes place ; in the fame manner as in a cafe of ufurp-
ation; — ^and that, according to ilfoi&^i;i;/7i^^, (on the .other hand) the
value they bore on the laft day of their currency is due, fince at that
period the right of the feller (hifted from tbem to their va/ue.-^The
argument ofHanee/a is, that the price is deftroyed by the difufe; for
money is the reprcfenfitive of price Iblcly from cuftom, and fitwicc
this property is annulled from difufe. The falc, therefore, remains
without
BookXVII. SIRF sales. 563
without any price being involved in it, and is confequently null ; and
as the /ale is null, it is of courfe incumbent on the purchafef to re-
flore the goods to the feller, provided they be extant ; or, if otherwile,
the value which they bore on the day he obtained pofleflion of them;
in the fame manner as in an invalid (ale.
A SALE in exchange for Faloos is valid, becaufe they are confidered Rules with
as durable property. If, therefore, ^c Faloos pafs in currency, the /irmufe!*
fele is lawful, although they may not have been fpecified, — becaufe
Faloos arc, from cuftom, reprefentatives of price, and confequently
fland oot in need of fpeci6cation. If, however, they fhould not pafs
in currency, it is in that cafe requifite that they be particularly fpe-
cified, in the £ime manner as other articles of merchandize.
If a perfbn purchafc wares for Faloos^ which at that time paf!ed in
currency, but which previous to the payment of them fal\ into difufc,
the fale is in that cafe null, according to Haneefa: contrary, however,
to the opinion of the two difciples.— -The difference of opinion upon
this point is analogous to what has been already mentioned in treat-
ing of dinns in which the alloy is predominant.
If a perfbn borrow Faloos^ and their currency fhould afterwards
ceafe, then, according to Haneefa^ the borrower miifl make re-
payment in iimilars*; becaufe Kiar% [a loan oinioney\ is equivalent to
Areeat [a loan oi fubjlance^ and therefore requires the reftoration of
the actual article with rcfpe£t to its nature^ that is, its "oalut. — ^I'he
property of rcprefenting price, moreover, is merely an adventitious
property, in copper coin, to which no regard is had in the bor-
rowing of them; on the contrary, they are borrowed on the principle
^ By fimlars is always underftood anj articles compenlable hf an equal number of the
fame dcfaripcion, fiich as eigs for eigt^ Falm for A&ti, 4cc. It is treated of at large in va-
rfous other partt oF the work.
4C Z of
5^4 SIRF SALES. Book XVIL
of their hting^mi/arsi and this quality they retain after the difufe of
rhcm as money, whence it is that a loan in them is valid after they
have loft their currency, — ^According to the twodifciplcs, on the con-
trary, the borrower muft in this cafe pay to the lender the value of
the Ea^oos ; for their quality of reprefentation of price being amiuUed
by the difufe, it is therefore impradlicable for the borrower to reftore
them with the qualities they poflcffed when he received them; and
hence, as the payment of Jimi/ars would be an injury, it is required
that he pay the value i in the fame manner as holds where a perlbn
borrows any articles of which the unities are fimilar, and the whole
genus of which afterwards becomes extinft. — According to ji6oo
Toofaf^ their value muft be fixed from the day of feizin ; and accord-
ing to Mohammed^ from the laft day of their currency, in conformity
with what has been already explained. This difference of opinion
originates in a difference of dodb-ine refpefting a cafe where a perfbn
ufurfs an article of the clafs of fimilars, and of which the fimilars af-
terwards become extinft*, when, according to Abo^ Toofaf^ the
ufurper is refponfible for the value the article bore on the day of ufurp-
ation ; and, according to Mobatnmed^ for the value it bore on the laft
day of its exiftcnce.~It is to be obfervcd that the opinion of Mobam-
fneJ is founded upon tendernefs to mankind, and that of A600 Too/of
on conveniency.
It is lawful for a perfbn to purchafe any thing in exchange for a
half dirm of Faloos'\\ and in this cafe he is required to pay the num-
ber of Faloos adequate to the price of half a dirm. — In the fame man-
ner, it is lawful to purchafe any thing for the Faloos of a ddnik J of
* Such as fruits^ ox other articles which are to be had only at |>articular feaTons of the
year.
t That is. For Fek^s to the value of half a ^irw.— (The diftinAion, in this inftance,
turns entirely upon the nature of the j)hnfe in the original idiom*)
1 A fmall Sitver coin, the fixth part of a £rm.
filver,
BocxXVn. SIRF SALES. s^S
fdvcr, or a Kcrdt^ of filver. — In all thefe cafes, Ziffer b of«opinion
that the bargain is unlawful, becaufe Fa/oos being an article of tale,
eftimated by number and not by their relation to Jirms or Sniks^ a
fpecification of the number ought therefore to have beeii made. —
The reafoning of our doftors is, that the exad number of Faloos ade-
quate to the price of a half dirm^ or a ddnikj is known, (for the ca(e in
queftion proceeds on the fuppofitioii of fuch a knowledge,) and that
a fpecification of the number is therefore unneceilary.— If the pur-
chafer were to fay, '^ I have bought this thing f^r the Faloos of one
** dinn^ or two dxrnu^* the bargam in that cafe alfo is valid, accord-
ing to AboQ Toofafi for this expreifion means the number of Faloos to
which the price of one or two dirms is adequate, and not the weight.
—-It is rehted as an opinion of Mobainmed, that a fale for the Falws of
one dirm is not lawful ; but that a fale for the Fdoos of any thing Ufukr
a iCrm is lawful, as it is cuftomary to purchafe things for Fa/oor^
where the value is not adequate to a {Smt^ but not otherwise. Law-
yers have obferved, that the opmion o( uiboo Toofaf\% the moft ap-
proved, efpecially in countries where the practice of fell'mg. and pur-
chafing for FaIoe»s is common, and where, ofcourfe, the rate they
bear, with refpeft to £niu^ is known and afcertained.
If a perfon, having delivered a dirm to a S/Vr^ or money changer,
ihould fay to him, " Give me Faloos in exchange for one half of this,
" andahalf i/Zm wanting one grain of filver in exchange for the
" other half,'* in this cafe the fale, according to the two difciples, is
valid with refpeA to the one half in exchange for Faloos^ and invalid
with refpeft to the other ; becaufe the fale of a half dirm in exchange
for Faloos is lawful (as has been afready explained;) but the exchange
of a half i//m in exchange for a half dirm wanting one grain of (ilver,
IS ufurious, and confequently unlawful. Agreeably to the tenets of
• A Girtf/, the twtnty-fourtb part of an ounce,
Haneefa^
$66 SIRF SALES. Book XVII.
Haneefa^ the fale is In this cafe completely nulU becaufe the whole is
comprehended under one contract, and the invalidity being ftrong,
with refpeft to a parU does therefore communicate itfelf to the whole.
If, however, the word " Give" be repeated, by the perfon faying,
** Give me Falaos in exchange for one half, and give me a half Urm
^^ wanting one grain in exchange for the other \i7\{y^ the opinion
of Haneefa^ in fuch cafe, accords with that of the two difciples,
becaufe here exifl two feparate fales, one valid, and the other invalid*
— If the purchafer, without oppofing the halves of the dirm^ were to
fay, " Give me, in exchange for this dirm^ the Faloos of half a dirm^
^^ and a half dinn wanting one grain ;** the fale is valid in full, be-
caufe, in this cafe, it is conflrued to be an oppofition, on the one
hand, of one half dirm wanting a grain in exchange for one half dirm
wanting a gndn ; and on the other, of a half dirm with the fuper*
addition of a grain for the Faloos of a half dirm ; and this is hwfuL
HEDjtrj.
( 56; )
HE D A T A,
BOOK XVIIL
Of Kafdlit, or Bail
KAFALIT literally mcansyif«5w/i. In the language ofthc LAW it Dcfaidon of
fignifies the jundion of one perfon to another in relation to a t^^^nW
cUdm: (fome have faid, in relation to a debt only ; but the firft is the mofl:
approved definition.) — ^The perfon who renders obligatory on him-
felf the claim of another, whether it relate to perfon or property,
is termed the KafceU or furety : — the claim itfelf, in favour of
which bail is given, whether it relate to the perfon or property,
is termed Makfool-be-bee : — the claimant Is termed MaJtfool-le-hoo%
and the principal, or perfon who gives bail, is termed Makfool-ttn-boo.
—In cafes of bail for the perfon^ however, the terms Makfooi-be-
bee and MaJtfooUan-boo relate to the fame thing.
CHAP.
568 BAIL Book XVIII.
Chap. L Introduftory.
Chap. 11. Of Bail in which two are concerned.
Chap. III. Of Bail J3y Freemen in behalf of Staves^ and by Staves
in behalf of Freemen.
CHAP. I.
DiiKnaions. BaIL is of two defcriptions. I. Bail for the perfm^ which is
termed Hdzir-ZSminee. II. Bail for property^ which is termed Mil- ,
Zdminee. j
Bin for the Bail for the pafon is valid ; and in virtue of it the furety is bound
^ ^"' to produce the principal, or perfon whom he has bailed. — Sh(fet is of
opinion that bail for the per(bn is not valid, bccaufe the furety un-
dertakes and renders obligatory on himfelf a delivery whiclx he is hot
capable of performing, inafmuch as he poilefles no power or autho;*
rity over the perfon of the pnncipal : contrary to bail ifor property^ at ix
that cafe the furety pofftfling power and authority over his own pro*
perty is thereby enabled to difcharge the obligation he has contra&ed.
— The arguments of our doAors upon this point are twofold. First^
the prophet has faid " ^e furety is refpmfible^^ which is a proof
that both modes of bail are lawful. Secondly, the furety is in
a degree capable of delivering the perfon for whofti he is bail, as. he
may inform the claimant of his place of abode, and thus remove the
bar between them, fmce, after obtaining fuch knowledge, thexrkiimant
may demand the aid of the officers of the JGrs^r, by whofe means he
may
Chap. I. BAIL, 5^9
may fccurc his prefcncc. There is, moreover, a nccefTity amongft
mankind for this kind of bail; and the characlerifticof bail, namely,
a jundion of one perfbn to another in relation to a claim, Is obfervcd
in it.
Bail for the perfon is contrafted, where any one fays; ** I have under what
" become bail for the perfon of a particular man," or, " for his ^XV,^"
" neci,'* or " for his>«r/," or ** for bis iody,'* or " for hisi&W,"
or ** for his Jacc;*' becaufe fome of thefc words really mean, in their
common acceptation, the wAok of the perfon, and others bear that
fenfe metaphorically, as has been already explained under the head of
divorce. — The eSe& is alfo the fame when a perfon fays, " I have
** become bail for the Aalfof a certain perfon," or " for a iiirj of
•* him," or ** for zpart of him;" becaufe the perfon, in the cafe of
bail, being incapable of divifion or difmemberment, the mention of a
part indefinitely is therefore equivalent to the mention of the wioU,
It is otherwife where a perfon fzys << I have become bail for the hand^^
(or " thcyio/,") becaufe neither of thefe par*s are ever ufed to denote
the whole of the perfon, and the bail fo given is therefore invalid.
If a perfon fay ** I am refponfible \Z6min\ for fuch a per-
^' fon," it is a valid bail; becaufe this is an exprefs declaration of the
intention of baiL It is alfo a valid bail, if a perfon fey, " This
•* is ufon me," or, ** This is towards me-," becaufe both thefe ex-
preflions indicate an obligatory engagement. — In the fame manner,
alfo, bail is contra£ted by the words Zeyim and Kdbeelj for both of
thefe (ignify bail, and hence it is that bail-bonds and other inftru*
ments of obligation are termed Kabila. If, on the contrary, a perfon
lay, ** I am refponfible for the notoriety of a certain perfon,**
bail is not contracted, iince the refponiibility, in fuch cafe, relates
merely to the notoriety and not to the claim. Hence if a perfon (hould
fay, in the Perfian language, *^ His acquaintance is upon me," he
does not thereby become baiL— If, however, he (hould fay, ** He is
Vol. II- 4 D " my
570 B A I L. BookXVIII.
*^ my acquaintance/* lawyers arc of opinion that he bcconnes bail be-
cauie of ancient cuftom.
The furety If, in a contraft of bail, it be ftipulatcd that " the furcty (hall, at
up"fhfiSon " ^ ^^^^ period, deliver over the principal or perfon bailed to the
for whom he ** claimant," it is in that cafe neceflary that he be delivered to the
ftipuiaccd pc. claimant, if it be required, either at the fixed period, or at any time
flulrcSfhU ^^ftcrwards, in order that the furety may acquit himfelf of the engage-
is lUbictoim- ment into which he has entered. — If, therefore, he deliver the perlba
P omenu )^[\^^ qjj ^j^^ demand of the claimant, he then becomes releafed from
his engagement ; but if he refufe to deliver him, the magiftrate muft
in-that cafe imprifon him for ^ilure in the performance of his en«
gagement. He is not, however, to be iroprifoned on the ^rfi fum-
mons, as he may not then know for what reafoa the Kdzec had fum-
moned him*
Iftheprincipat ^^'» in a cafe of bail for the perfon, the principal fhould difappear,
fSmaft te ^^^^ ^^^ ^^^ incumbent on the Kdzce to afford the furety a fufficient
IndvLigcdwhh period to go and come in fearch of him; and afterwards to imprifon
fOThim; and ^im^ in cafc of his not producing the principal, becaufe he is then
J^"®"^" proved to have failed in his engagement. — If, however, he produce
aeiiveiinf^up the principal, and deliver him to the claimant^ in fuch a place as may
It \n^*^ce enable him to litigate his fuit with him, the furety is then releafed
rf uu|a£ ^^^^ ^*^ engagement of bail, becaufe of his performance of the obli-
gation he had contraded; and the end of the contract is likewife an-
fwered, as it only requires that he deliver him once. If he fhould
have agreed to deliver hinl " in the aflemUy of the K&xee^^ and af-
terwards deliver him in the market place, flill he is releafed from his
engagement, becaufe the objeA of the bail is anfwered. (Many have
obferved that in the prefent age the furety would not in fuch cafe
be releafed from his obligation ; becaufe, as the probability in this age
is that the ^ple would aid the defendant in preventing his appear-
ance in the aflembiy of the K&^e^ and that they would not afilfl:
8 the
Chap. I. B A I U S7^
ihc claimant in enforcing it, fuch a claulc is therefore beneficial. )
•—If, however, the furety deliver over the principal in a de/erf^ lie
is not releafed from bis engagement, becaufc the claimant could not
in fuch place litigate his fuit with him, and the obje<ft of Ixiii remains
therefore unaccompliflied. In the fame manner, he is not releafed
from his obligation in cafe he deliver him up in a village where
there is no Kdzee ; becaufe, where there is no Kazce^ the claimant can
obtain no decree. If he fliould deliver him up in another city than
that in which he had entered into the contn£t of bail, he is then
(according to Hanecfa) exempted from any further obligation. — The
two difciples.are of a different opinion, becaufe it may often happen
that the witnefles are in the city in which the contrad was formed.
—If, moreover, he deliver over the principal in the prifon^ where
he had been previoufly confined by another for a ditFerent caufe, he
is not releafed from his engagement, becaufe the claimant has no
power, in fuch fituation, to litigate his fuit with him*
If, in a cafe of bail for the perfon, the principal fliould die, the ThedeitKof
furety is then releafed from his engagement ; firjl^ becaufe of the !^fgJ?"°^J{^
impradlicability of producing the perfon; ^i\A^ feconJfy^ becaufe, in furety i
the fame manner as the appearance of the principal is by fuch event
defeated, fb alfo is the enforcement of it on the part of the furety.
The fame rule alfo holds in cafe of the death of the furety; becaufe md the death
it then becomes impra£licable for him to deliver up his principal; and, ^^J^i! SU**^
alfo, becaufe his property is not of an analogous nature, (b as to admit co°tr^*
a difcharge of the obligation by means of it.-— It is othcrwife in the
cafe of bail for froperty\ for if the furety for property die, the ob-
ligation of bail does not then ceafe, fince it is neceflary to difcharge
it by means of his property, to whatever amount he may have ren*
dered himfelf liable.
If the claimant fliould di6, his executor (if there be any) irtherAt/ifMe
or otherwife his heirs, arc entitled to claim the fulfilment ^'«'«^«''c«"
' Of exccuturi
4 D 2 from
S7^ B A I L. BooKXVin.
may demand from thc furctv ; bccaufc heirs and executors reprcfcnt the
thcfulbimen:. • *
dead.
The furft) i$ If, ill a cafc of bail for thc pcrfon, thc furcty fliould not ftipulate
SLuvc^Hng^up ^^^ releafe from thc bail on thc delivery of thc perfon, he is never •
his furccee ; thclcfs rclcafcd on fuch delivery, bccaufc this being thc intention of
thc contraft, it is confequently cftablifhcd indcpendant of an cxprcfs
declaration. It is to be oMcrved, likcwifc, that thc furcty becomes
cxfcmpt from his obligation on thc delivery of thc pcrfon, without the
acceptance of thc claimant being required as a condition, in thc fame
or, by dcK. manner as in thc payment of a debt. The cftea is alfo thc fame,
/jTup; * ^^ cafe thc principal fliould of himfelf prefcnt his pcrfon, as if he fliould
fay ** I have prefented myfclf on account of the bail of a particular
** pcrfon who has become furcty for mc.'* This is approved, bc-
caufc the furcty bemg entitled to contend with him, in order that he
of.bvhwbc. may deliver himfelf up, it is therefore permitted to him to deliver
Iip^by rmef. himfelf up voluntarily to prevent contention. It is alfo lawful for the
fenger. ^^^^^ ^^ mcfltngcr of thc furcty to deliver thc pcrfon, as thefc are thc
reprefcntatives of thc furcty himfelf.
Thcpiymcnt If a pcrfon bccomc bail for the appearance of another, on this con-
naJbc^^S ^**^^^"> ^^^^^ '^^ ^^ ^^ ^^^ ^c^i^^f ^^^ "^'^^^^^ ^ particular period, he fliall
pendcd upon thcn bc rcfponfiblc for thc claiqi upon hirn, (a thoufand Jirms for in-
duAionofdie flancc,) and he afterwards fail of producing him within thc fixed pe-
principal: ^.j^^ j^^ j^ ^y^^^ bound to make good thc claim upon the furctec; —
bccaufc in this cafc a bail for property is fufpended on thc condition,
namely, thc failure in producing thc pcrfon within a fixed period ;
but ft'iil the and fuch fufpcnfion is valid, beoaufc of thc cuflom of mankind. Hence,
^^HZxi^i ^^^^^ ^^ condition is not fulfilled, thc furcty becomes rcfponfiblc for
in force. thc claim ; and he is not, ncverthclefs, relcafed from thc bail for thc
perfon ; bccaufc bail for thc perfon and bail for thc property are not in-
compatible.— Shafei maintains that the bail in this inflancc is not
valid ; bccaufc bail for property induces a rcfponfibility for property in
thc
Chap. I. BAIL. 573
the fame manner as fale; and hence it is unlawful to fufpend it on a
matter of doubt and uncertainty ; in the lame manner as iti the cafe
of fale. — ^The reafoning of our do£lors is that bail for property is ulti-
mately XxVtfale^ inafmuch as it entitles the furety to repaymentyr(?;w
the principal of what he advanced to the claimant on his account, — and
that in the beginning it rcfembles a gift, being an acquiefcencc in re-
fponfibility without any exchange. — In due obfervance, therefore, of
both thefe circumftances, it is declared that the fupenfion of it, on an
uncertain condition, (fuch as the blowing of the wind, the falling of
the rainr, and the like,) is invalid; but that it is valid if fufpended on
a certain condition, fuch as in the cafe in queftion^
If a perfon be bail for the appearance of another " on themon- If the time be
** row," under a condition of anfwering the claim upon the other ii^tee*dicin
himfelf, in cafe of failure, and the principal die before the morrow, he ^ /"**"?•
is in that cafe furety for the property, becaufe here the condicion on comare^pon-
which he agreed to the refponfibility clearly takes place* '^^
If a perfon claim one hundred (Ulnars from another, either with or Ctfc of b^i
without an explanation of their quality, and a third perfon become bail ^,fJa??'^'
for the perfon of the debtor, under a condition that ** if he do not de- ^"^ ^}^ ^^
the pcnon*
** liver him on the morrow, he fhall be refponfible for an hundred
** deenars^^ and he fail in the delivery of him on the next day, he is
in that cafe refponfible, according to Haneefa and Ab^o Toofaf^ for the
one hundred deenars.^^Mobammcd maintains that if the yW//y*of the
deenan be not explained previous to the- acceptance of the bail, the
claimant has no right afterwards to explain their quality and demand
them from the furety. — ^His arguments in fupport of this opinion
are twofold. First, the furety has refled indefinite money upon.a
matter of doubt and uncertainty, inafmuch as he has not fpecifically
referred the one hundred decnars to thofe which were claimed ; (for
which reafon the bail is invalid, even if a diefinitioa of the quality have
been previoufly given.)- -Secondly, the claim of an hundred deenarsy
without
574 BAIL. Book XVIII.
without a definition of their quality^ is invalid; whence no obligation
lies on the furety to produce the debtor; and as^ where the produfliou
of the debtor is not obligatory on the furety, the bail for the perfon is
of confequence invalid, it follows that the bail for the property is alfu
invalid, iince this reds upon the other. ^* (From what is here ad*
vanced it appears that the bail in queftion is valid if the quality of the
deenars be fpecified.)— The argument of the two elders is that the
detnars mentioned by the furety do evidently, from the circumfUnces
of the cafe, relate to thofe claimed. — It is, moreover, a frequent prac*
tice to keep a claim in a flate of doubt and uncertainty. — The claim
in queftion, therefore, is valid, in this way, that the claimant will
(it is to be expected) explain the quality, and fuch explanation will
be applied to the original claim : — and upon the claim becoming valid,
t\itjirft bail (namely bail for the perfon) becomes valid; and in confe-
quence thereof the fecond bail (namely bail for the property) alfo be-
comes valid.
Bail for the Bail for the pcrfon is not lawful in cafes of punifhment
CrcxaaS"S ^"^ retaliation, according to Hamefa\ — that is, the K6zec has no
cafes of power to cxaft it by compulfion.— If, however, the perfon upon
^^'J^ilmr whom punifliment or retaliation is claimed, fliould'in a voluntary
but max be manner give bail of himfelf, it is admiHtble in the opinion of all
if bySSi our doftorsj becaufe that which is the end of bail for the perfon
cttfed. Js in this cafe alfo anfwered, (ince the production of the perfon
of the accufed is hereby fecured. — It is to be obferved that the per-
fon upon whom punifhment or retaliation is claimed, muft not be im-
prifoned until evidence be given, either by two people of unknown
character, (that is, of whom it is not known whether they be juft or
unjuA) or by one jufl man who is known to the Kdzec; becaufe the
imprifonment^ in this cafe, is founded on fufpicion, and fufpicion cannot
be confirmed but by the evidence of two men of unknown character,
or of one jufl man. It is otherwife in imprifbnment on account of
property ; becaufe the defendant, in that inftance, cannot be imprifbned
but
Chap. I. B A I L. $75
but upon the evidence of twojujl men\ for imprifonment on fuch an
account is a grievous opprcflion, and therefore requires to be grounded
on complete proof. — In the Mabfoot^ under the head of duties, of the
Kazee^ it is mentioned that, according to the two difciplcs, the de-
fendant, in a cafe of punifliment for llander, or of retaliation, is not
to be imprifoned on the evidence of one jufl man, bccaufe, as the ex-
aftion of bail is in fuch cafe (in their opinion) lawful, bail is there-
fore to be taken from him.
It is lawful to take a pledge or accept of bail for the payment a i«:c ige or
of any fixed tribute, becaufe tribute being vi debt of which the pay- ^^I*^! for
ment is demanded, it may be difchargcd by means of the pledge or ^^!- wyn^nt
the bail, and hence the objects of thefe contrafts is anfwered* uibiuc.
If bail for the perfon be firft taken fron:i one^ and afterwards from
another, the bail in that cafe holds with refpeft to both; for the de-
fign of bail is to fix the obligation of a claim, and this may be extended
to many, fo as to render them fevcrally refpcnfible. Bcfides, as .the
objeft of bail is fecurity, this is increafed by the taking of bail
from another; and hence there is no incongruity in the exiftcncc of
both at the fame time.
All that has been here advanced relates to bail for the per/oit. — g^ji ^^ p^
With refpeft to bail (or property^ it is lawful^ whether the extent of P^«y " ^^"f^
the property be known or uncertain, provided it be fbunded on a juft ed \x^Tjii
debt,— that is, a debt which cannot be annulled but by payment or ^^^\^^^
cxcitiption: in oppofition to a claim of ranfom^ which is a debt due by ^*'w« or w
a Mok&tib to his mafter, — becaufe that may poffibly become null with- '"^'*'*'
out payment or exemption, by an inability in the Mokaiib to diichargc
it* Property known in the extent b (for ioftance) where a perfon
fays to a claimant ** I have become bail for a perfon who owes you s
" thoufand new dtrtm^^ The nature oiuncertoxn property may alfo be
explained by au example;.as for inftance,. where a pecfoi fays ** I have
" become
576 BAIL. Book XVIII-
** become bail for the debt which a particular pcrfon 5wcs to you ;'*
or, ** I have become bail in this fale for whatever claim may hcrc-
** after be made on the fubjcft of it/*— which bail is termed Kafdlit^
beUdh'k^ or bail for accidents, that is, for whatever viay happen. In
fhort, bail for certain or uncertain property is lawful, bccaufc bail
reds upon a broad foundation, and a fmall degree of uncertainty in it
is therefore of no confequence. Befidcs, all our doctors arc agreed in
the legality o( Kafalit-be'l-dirk^ or bail for what may happen ; which is
a convincing argument of the legality of bail for uncertain property.
Moreover, bail is lawful in the cafe of unintentional Sljoodja [a wound
occaGoned by the throwing of a ftone] although there be in it a great
degree of uncertainty ; becaufc it is pofliblc that death may cnfuc,
which induces retaliation ; and it is alfo poflible that a recovery may
take place, in which cafe zfne of property only is required. Now if,
notwithftanding this degree of uncertainty, the bail be lawful, it fol-
lows that it is in the fame manner lawful in the cafe of uncertain
property.
Inacaleof Thz perfon to whom the bail is given is at liberty to demand
*r ' m's P^y"^^*^^ cither from his debtor, who is the principal, or from his
liberty to furety, becaufe bail (ignifies a junftion of perfonal refponfibility to the
mana cither" pcrfonal rcfponfibility of the debtor, in a claim; and this does not im-
frainthe/irrr(f pj^ ^^ exemption to the debtor from the claim ; on the contrary, it
M marks the continuance of his refponfibility ; — unlefs fuch exemption
(hould have been fpecified as a condition in the contract of bail, in
which cafe the contradl of bail becomes a contraft of transfer, in the
fame manner as a transfer becomes bail, if a condition of exemption to
the debtor be not fpecified ; becaufe regard muft be had to the jfpirit of
the contra£t; and in the former inftancc the contraft bears the fcnfe
of a transfer, in the fame manner as, in the latter, it bears the fenfe
of 6aiL
and may cili If thc pcrfon to whom the bail is given call upon one of the two
parties,
Chap. I. BAIL. 577
parties, — that is, upon cither the debtor or the furctj%-i-hc is entitled upon f#>^rror
alfo to call upon the other; and he may, if he plcafe, call upon kath. — *''**
It is othcrwifc where the proprietor demands compeniation for his
property frcm one of two ufurpers, — (that is, from the original ufurpcr,
or from another who has ufurpcd it again from him;) f(ir he can-
not then demand it from the other; becaufe upon his agreeing
to accept compenfation for the ufurped property from one of them, he
thereby conflitutes him proprietor, fincc option of compenfation iu-
volves inveftiture with right of property ; and hence the impoflibility
of his afterwards conAituting the other proprietor. A claim in virtue
of bailj on the contrary, does not involve an inveftiture with right of
property.— There is therefore a difterencc between thcfc calcs.
The fufpcnfion of bail upon a condition is lawful. — Thus if a B,iiim*ybe
perfon fay to another " If you fell your <;oods to ZeyJ^ the price is ©n^n'Jrfiialld
•* upon me,'* — or, •* If any thing be duo to you from a certain per^ ?'^<JPCf<:o«<**-
** fon, that is upon me," — or, *• if a certain article be ufurped from
** you, the damage is upon me,** — in ail thefe cafes the bail is lawful,
becaufe all our dodors have agreed upon the legality of Kafdlit^bel^
Srk^ when fufpended on a condition. — It is to be obferved, however,
that although conditional bail be lawful, dill it is requifite that the
condition on which it is fufpended be of a nature adapted to the con-
traft of bail,— either by refting upon the obligation of a right, (as if
the furcty ftiould fay, ** If the fubject of the fale be not claimed by
*^ another, 1 Jiold myfclf rcfponfible for the price,**) — or, by refting
upon the poffibility of the cxaftion of a debt, (as if he were to fay,
** upon Zeyd [meaning the principal'] arriving,** &c.) or, by refting
upon the impoffibility of the exadtion of a debt, (as if he were to fay,
" upon fuch a perfon [meaning the principal] difappearing,** &c.)
for the fufpcnfion upon a condition not of a fit nature, — (fuch as, upon
the falling of rain, or the blowing of wind,) is unlawful. — In the fame
manner alfo, it is unlawful to ftipulate thefe events as the period for
payment of debt;— as if a perfon fliould fay, " 1 have become bail for
Vol. IL 4 E *' the
578 B A I L ^ Book XVIII.
** the debt due to you by a certain perfon^ u$uU the rainfall^ or the
" windhlw)^^ in which cafe the bail is valid, but the condition is
Invalid, and therefore an immediate paynnurnt of the money is required ;
becaule the fufpenfiou of bail on a condition is valid, and it docs not
become invalid from the invalidity of the condition^ being fimilar to
the cale of divorce and emancipation.
Where the If the furety fay to the claimant ** I am bail for the debt due to
•^'V •f/z^iV- ** y^^ ^y ^ particular perfon," and it be afterwards proved, by wit-
f/manocr, ncflcs, that the debt amounts to one thoufand ilnm^ in that cafe the
afcfruioedby furety is anfwerablc for that fum, becaufe proof by tefiimony is equiva-
IhS^foSfn^' lent to that by aaualfigbt. But if the amount of the debt (hould not
by the decU. be proved by witncflcs, the averment of the furety is in that cafe to be
fttfety. credited in the amount which he may acknowledge ; for, with refpeft
to whatever fum may be alleged beyond his own acknowledgment, he
is confidered as the defendant, — Hence if the principal acknowledge a
greater amount than that acknowledged by the furety, it cannot be ad-
mitted to operate ag^inft him ; becaufe, confidered as an acknowledg-
ment or declaration with regard to another, it is invalid, as an ac-
knowledger has no power over another. — It muft be credited, how-
ever, with rdatbn to himfelf; for he has power over his own
perfon.
BaU may be ^'^ ^ lawful to bccome bail either with or without the defirc of
cooiriaed ^ the principal; becaufe the tradition with refpcdk to it is abfolute, and
^t the con- docs not redri^t it to the defire of the principal. Bail, moreover, being
Jiidpaol* an obligatory engagement, is a deed rchtive to the furety himfelf, in
which there is an advantage to the claimant and no detriment to the
principal : for if he (hould have become bail without the defire of
the principal, then he has no right to apply to him for what he may-
pay on his account ; or if, on the other hand, the bail was contraded
by his defire, then the principal has exprefled his acquiefcence in his
claim of repayment from Kim, to which he is entitled becaufe of his
having
Chap. I. BAIL. 579
having made the payment in virtue of authority from him, — whereas
he has no riglit to repayment in cafe of having become bai^ without
the dedrc of the principal, as the payment (b made was a gratuitous
deed. — It is to be obfcrvcd that the furcty has a right to a repayment, Ciicum.
from the principal, of the fum which he may have advanced on his ac- which a fure
count in virtue of the refponfibility he contrafted by his defire.— As J^5*'"yjgh^^^^
for inftance, if the debt be one thoufand good dinns^ and he pay the demand com-
claimant one thou fand good ^/mi, he is then entitled to the repay- from his prin-
ment of one thoufand good t£rms. — But if he fliould make a pay- ^^ '
ment of a nature difSsrent from his engagement, — as if, having be-
come bail for one thouiand good dirms^ he fhould pay the claimant one
thoufand bad^ orvice verfa^ — he is in that cafe intitled to receive from
the principal the full amount for which, by his defire, he had become .
refponfible; becaufe the furety, from the payment of the debt, be-
comes proprietor of it, and ftands therefore in the place of the creditor ;
— ^in the (ame manner as if he had become proprietor of it by virtue of
a gift, or of inheritance ; — (that is, as if the claimant had beftowed on
him a gift of the debt due to him by the principal, and permitted him
to take poflcflion of it,— or, as if the furcty had fucceeded to the debt
in right of heritage ;— or, in the fame manner as where the perfon to
whom a debt has been transferred acquires a property in the debt by
either of thefe modes.) — It is otherwife in the cafe of a peribn intruded
to pay a debt; for if a perfon be defircd by another to pay a debt 011
his account, and pay it accordingly, he is in that cafe entitled to receive
from the other the cxaft fum he has j)aid on his account, although the-
debt relate to bad dlrms^ and he pay it in good% becaufe z perfon {o
inflru£ted, having incurred no refponfibility, has therefore no right
to become proprietor of the debt in virtue of his having paid it. — It i&
otherwife, al(b, if a peribn, having become bail for a debt of one thou-
fand iirms^ fliould compound with the claimant for the payment of
five hundred dirms;— for in this cafe he is intitled to receive only five
hundred dirms from the debtor, becaufe compofition is fimilar to annul-
ment of part of the debt, and the cafe is thereforethe fame as if the
4 E 2 claimant
580 BAIL. Book XVIIL
chumant had remitted part of the debt to the furcty ; and as, in cal'e
of rcmiflion of the debt by the claimant, the furety has no right to re-
ceive any thing from the debtor, — it follows that, in the cafe o(com^
fofttio7i alfo, he has no right to receive more than he has afkually
paid.
He cannot A SURETY has no right to advance any claim on the principal until
bttf^incnt * ^^ make payment on his account, becaufe he does not become pro-
aft lu^ dT P^*^^^'' °^ ^^^' ^^^^ ""^*' ^^ P^y^*^ it.— It is othcrwifc v^'ith relpeft to an
ckirged the agent for purchafe ; as he is entitled to receive from his conftituent
^iht$rhK^: ^^^ P"^<^ <5f ^he merchindizc previous to the payment of it on his prt.
The realbn of this is that there virtually fubfifls acontraft of exchange
between the conflituent and his agent ; becaufe the right of property
is firft eftabliflied in the agent, and afterwards Ihifts to the conftitu-
ent ;— and hence they ftand to each other in the relation of buyer and
feller^^^whence it is permitted to the agent to detain the merchandize
from his conftituent until he receive the price from him.
bot he mix If the claimant importune the furety in purfuit of his claim, then
S2^j*ji5! the furety may in the fame manner importune the principal or furetce.
"*^- If, alio, the furety be imprifoned by the claimant, he is in the fame man-
ner entitled to imprifbn the principal.
Hcisrelealed If the claimant remit the debt to the furctee, or receive payment of
w Sfjrina- *^ ^^^^ *^*"^' ^^^ furety is in that cafe releafed from his engagement,
pal; but the bccaufc the debt, in reality, is due by the furetee:— but if he exempt
im releafed theyJ/rr/v, thc furctcc (or principal) does not thereby become ex-
iio.*"trK ^'"P^^^ ^^^^ ^^^ ^^^^ » becaufe the fqrety is merely a dependant \ and,
alfo, becaufe he is liable only to a Mm^ whereas the debt exifts in the
principal independent of fuch claim.
o?lytV^« ^P the claimant allow the principal a refpite from his claim, or
rfiKe claim, fufpend his claim upon him to a morc dlftant period, fuch refpite or
fufpenfion
Chap. I. BAIL- 584
fufpenfion of claim operates alfo in favour of the farcty ; — ^but if he
grant a refpite of his claim to the furety, it docs not operate in favour
of the principal ; — ^becaufe rcipite or fufpenfion, as being a temporary
remiflion, is therefore analogous to an abfolute rcmiflion. — It is other-
wife where, the debt being immediately due, the creditor accepts bail
for the payment at the period of a month afterwards; for this fu(pen*
lion of his claim for a month operates alio in favour of the principal,
becaufe here the period of (ufpenfion agreed upon is a circumftance
annexed to the debt, which, at the time of contrafting the bail, was
immediately due.
If a furety, in a debt of one thoufand dirms^ compound with the A farety.
creditor for a payment of five hundred dlrms^ in that cafe both the tKbfS
principal and the furety become exempted from their relpeftivc obli- ^^^^"^
gations for the remaining five hundred dirms\ — becaule the furety cUtmant.diT-
having referred the compofition to the thoufand dirms due by the ^^^i^Iyfo*
principal, the principal becomes thereby releafed from his obligation ^^wleounds;
by the payment of five hundred dirms \ for compofition is a cancelling
of part of the debt;— and the releafe of the debtor from his obligation «nd has a
occafions the releafe of the furety, — ^He is alfo in this cafe entitled to Jhefuretyfor
five hundred dirmr from the furety, provided he entered into the i^^ ^f^^*
bail with his confent. — It were otherwife if the furety (hould «>».
compound the debt for fome thing of a different fpecies, (as if, in-
ftead of the dhrms^ he (hould agree to pay a particular number of deenars\
or any article of merchandize ;) for in fuch cafe he is entitled to a fiill
payment of the debt, fmce fuch compofition is vx the nature of a con-*
traft of exchange, and the furety becomes proprietor of the debt ia
virtue of his having given a confideration for it*
If the furety compound with the creditor for an exemption from Aforetycom-
the obligation contra£ied by him in virtue of the bail, the principal is » e»mpiiott
not thereby exempted, becaufe the faid compofition is merely an ex- ^j^Jf^Xt
emption
58» B A I L^ BookXVIIL
Aoc dircHari»e eoiption granted to the furcty from a claim upon him. — ^Thus, for in-
e priocipai. ^^^^^ -f ^j^^ furcty for one thoufand iCrnis compound with the creditor
for one hundred Jirms^—m other words, if the creditor agree that, oa
condition of his paying one hundred ^rms^ he will exempt him from
the reft of his obligation, — in that cafe he becomes exempted from re-
fponfib'dity ; and, provided he had become bail by defire of the prin-
cipal, he is entitled to receive one hundred Jirms from him, whilft the
creditor retains his claim on theprincipal fur the remaining nine hun-
dred Jinnu
Caresmwhick If a claimant fay to the (urety, who had become bail by de(ire of
Hrht"agw^^ the principal^ " You are enlarged from the claim towards me," in
?* P""^*P*^ that cafe the forety is entitled to receive the. amount in queftion from
theurmsof theprmcipal; becaufe, according to the rules of grammar, this ien-
UoiT w"lif. tence, in which the prepofitionyr^m with refpcft to the objcft, and
***«*• that of towards with refped to the claimant of fuch objcft, are ufed,
means that the claim has been difcharged.— Hence the claimant, in
this cafe, is held to have made an acknowledgment of the difcharge of
the claim; and for this reafon the furety is entitled to receive the pay-
ment of it from the principal.— But if he ftiould merely fay " I have
** enlarged you,'' the furety is not entitled to any thing from the
principal ; becaufe his enlargement, being here exprefled without any
mention made of its operation towards another, is confidered as
an annubneni^ and not as a declaration of dlfcharge.-Ai he fliould only-
fay *^ you are enlarged,'* without adding, ** towards me," in that
cafe there is a difagreement amongft our doftors.—AibA^/wwr^ alleges .
that it is fimilar to the fccond inftance— *' I have enlarged you."
Jiboo Toofaf^ on the other hand, is of opinion that it is fimilar to
the firft inftance^— " You arc enlarged from the claim towards
" me/*— Some, again, have faid that, in all thefe cafes, if the
claimant be prefent, it is rcquilite to demand an explanation from
him^ lince he lias ufed a dubious exprcilion.
Thr
Chap. L BAIL- 5^3
The fufpcnfion of enlargement from bail on a condition is not law- An enlirje-
ful ; becaufe an enlargement of this kind, as well as that of other defcrip* baU cinaot
tions, involves an endowment with right of property, and the/u/^^Qn ^«on Tew-
of an endowment with right of property is not lawful*.— There is a ***^-
tradition that fuch fufpenfion is lawful; becaufe, in fa£l:, a furety is
refponfible for a c/aim^ and not for a ^ir^/,— whence fuch enlarge-
ment is, like divorce, a mere annulment f, and therefore cannot be
undone by the rejedlion of the furety §: — ^and the enlargement from
bail being a mere annuIme$U^ it follows that the fufpcnfion of it
upon a condition is lawful, in the fame manner as the fufpcnfion
of dhoree or emancipation : in oppofition to the enlargement of the
principal I as that is an endowment with right of property, and
may therefore be reje£ted by him*
Bail is not valid with refpe& to any right of which the fulfilment Bail, m a6$
is impra£Ucable by means of bail, as in cafes of punijbment or rttalia- ^j^iaiioA.
//M,~becaafe proxies are not admitted in cafe of corporal punilh- ^^^J^
mcnt. But bail for the perfons of criminals under the lentcnce of fuch
punifhments is lawful.
* An endbwmem with a right of piopeit/ (fiich as a /j/?, for inftance) RMtft opente
immediately^ odicrwiie it is not valid.
t This doarine is founded on the metivhyfical diftinaion which the MMjilmans draw
betwixt a debt and a daim. Thus where a perfon remits to another a debt contraaed by
hrnwing^ pttrcbafiy or the like, he, as it were, conveys or makes over fo much property
to that other : — but where he remits an obligatory claim upon another to anfwer the debt of
a thicd perfon, he then merely annuls a right of bis own i for as that other bad not in real-
ity received any property from hiiA, he cannot by fuch remiffion be (aid to have made over
lb much property to hinu
$ A gift, or any deed veiling property in another, cannot operate wichout the confent of
diat other. On this principle a gift is not held to take place until the feizin of the donee,
as, until then, it is in his power to render it void by ti rejeaion. But it is not in the
power of the fureqr to prevent the operation of the exempriontin his favour by the rejec-
tion of it, as it is held to be an annulment of a right on the part of the claimant^ and not
a deed convqriag property to hiou
7 A PERSOK
584 BAIL. BoocXVnL
Sail max be A PERSoK may lawfully become bail^ on the part of a purchaler,
/rl!^ bttCM for the payment of the price^ becaule price is a debt : but it is not
in'a^&lcf^'' lawful to bccomc bsuly on- the part of the feller, for the merchandize ;
for that is fubftance, of which the compenfiition, in cafe of deftruc-
tiont is infured, by means of fomething of a different kind, namely,
the f rice; and although bail for infured fubftance be lawful in the
opinion of all our do£lors, fiill it is required that the fubfiance be in-
fured for a iimibr in kind, fuch as ttke fubje£k of an invalid iale, an
article feized in virtue of an intention to purchafe, or an article
ufurped ; but not for any fubftance which is infured for fomething of
a different kind, fuch as the fubjeft ciz'veJid fale, or zpawni nor for
any fubftance held in the nature of tnift, fuch as a depofit, a (ul:ge& of
rent, a loan, Mtadrlbat (lock, or partnerjhif ftock.^ — ^If, after the pur-
chafer, in a cafe of fale, had- paid the price, a peribn become bail for
the delivery of the goods to him, — or if, in a cafe of pawnage, a perfon
become bail for the pawnee's reftitutiou of the pledge,— or, in a cafe
of hire, for the renter's reftoring the article hired, — ^in all thefe
cafes the bail is valid, becaufe of the furety having engaged for the
performance of what was due and incumbent.
BaU for the If a pcrfon hire a quadruped for the carriage of a burthen, and an-
ofMrk^bTa ^^^^^ ^ ^^ ^^^ ^^^ animal carrying the faid burthen, it is not valid,
fpccific tni. becaufe of the animal being the property of another. — ^This, however,
valid. proceeds on a fuppofition of the hire having related to a fpedfic ani-
mal;— ^for, if the animal be not fpedfic, the bail is valid, as in that
cafe it & in the power of the furety to fupply an animal of his own for
the carriage of the burthen. In the fame manner, in cafe of a peribn
hiring a (lave for fervice, bail given for his performance of the fervice
is invalid, as the (lave is not the property of the furety, and he has
coiifequently no power of enforcing what he has undertaken.
A contriA of A CONTRACT of bail is not valid unleis it be formed with the con-
!S^" whh ^<^nt. of the claimant.— This is according to Haneefa and Mobammed.
Abac
Chap. L BAIL 585
•^AbooYcofrf^t^ that a contra^ of bail is valtd^ if, having been tlieconfentor
formed without the knowMge of the claimant, it receive his affent ^ ^ "''
on its being notified to him : and (according^ to feveral copies of the
Mabfoot) his aflent is not a condition.-<»This disagreement relates
equally toTxtil for thtferfon^ and bail &>r fraferfy.— The reaibning of
jfbco Taqfqf^ in fupport of his opinion, is, that as bail iignifies an oblU
gatoiy engagement, it is therefore binding on the perfon who under-
takes it; and hence it would appear that it does not depend on the
aflent of the claimant : but the reafbn for fufpending it upon his con-
currence is the fame as occurs under the head cfmarriiige^ treating of
Fazoo/ee marriages ; *^ The dechration of the furety that he has be-
^^ come bail for a particular thipg, on th part of a particular perfon,
*^ renders the contrad complete ; but as it is a deed affedlng the
<< claimant, (inafmuch as it invefls him with a right to a claim,) it is
^^ therefore fufpended upon hb aflent.*' — ^The reafbning of the other
two do£tors is that bail creates a right ; in other words, the furety con^
flitutes the claimant proprietor of a claim upon him, which he accord-
ingly demands from him after the completion of the contrad.— Hence
it follows that two points are neceflary to the completion of the con-
tract, namely, the fpeech of the furety, (which is equivalent to a
declaration with refpeft to the claimant,)— and the fpeech of the
claimant, (which is equivalent to acceptance.)— Now in the cafe in
queflion there exifb only one of thefe two requifites: the contrad,
therefore, is not fufpended beyond the meeting; and confequently a
contrad of bail b not valid but through the confent of the claimant
at the meeting:— excepting only in one infbnce,«-namely, where a
fick* perfon £iys to hb hdr, '^ be you bail for whatever debts I may except wiieie
** owe," and die heir becomes bail accordin^y in the abfence of the 5^^******
creditors; for in thb cafe the bail b effe&ual, notwithfbnding the
abfence of the creditors, upon a fiivouraUe cohfbudion, — for two rea-
fbns ; First, the bail fb contrafted b, in efiedt, a wi^, and b therefore
* Arab. JUSvMak— Always meaoiiig a perfon lick of a MNti/ Oliiefi.
Vol. n. A^ ^i^
586 BAIL. BooxXVnL
valid without the intervention of the* claimant; — (and hence lawyers
have remarked that this fpecies of bail is not lawful unlefs when the
fick peribn is in pofieflion of property; becaufe a will would not other-
wife be lawful ;) Secondly, the (ick perfbn is the reprefentative of his
creditors, becaufe he fiands in need of being fo, in order that he may
diveft himfelf of his obligations ; and alib^ becauie this is attended with
an advantage to the creditors. — The cafe is therefore the fame as if
creditors had ihemfelves been prefent*
Objection. — ^If the lick peribn rq>reienthis creditors^ it follows
that his acquiefcence is a neceflary condition, in the ianEie manner as
that of the cre&wn^ had they been prefent ; and that the expreffion of
^* Be you bail on noy part for whatever I owe^** is not conclufive of
the contrad ; — ^^where^s this renders it concluitvcv
Reply. — The bail founded on this (peech of the fick perfbn is
valid, anihisacquief^ence is not required as a condition; becaufe the
meaning to bededuced from the fpeech is, evidently, a defircon the
part of the fick man that the bail be concluded, and not merely a coji-
fultation refpeaing it; and his fpeech therefore refembles an order
for the conclufion o£ a. marriage^ as already explained under the Head
of marriage. — (It is to.be obferved that if the fpeech of the iick per-
fon be addreiled to a firanger^ there is in that cafe a. difagceement with
xeipeft ta the. validity of the bail.)
Cai^ of bail It a debtor die without leaving any property, and another become
fSt& ^^^ ^^ ^is creditors, fuch bail is not >ndid,. according to Hamefa.-^
^"^W*^*^ The two difciples allege that it is valid*; becaufe it is undertaken on
defuao. account of a debt, eftabli(hed as the rig^t of the creditors,, and which
is ftill extant,, fince no peribn has diiciiarged.it, whence it dill exifts
ib far as rebtes to the laws of futurity ; that is to fay,, the debtor, if is
be not difchargcd, becomes a criminal before God Almighty. — As,
alio, if the furety were aAually to difcbarge the debt,, fuch difchargc
would be valid, being a gratuitous a£b of juftice, in the fame manner
^tf/7for it is confcqucntly valid* — The argument of Hancefa in fup-
poet
Chap. I. B A I JL 587
port of his opinioo is, that the bail is in this ca(e given for a debt which
is annulled with relation to the laws of this world; and the validit/
of bail being founded on the laws of this world, it cannot be legallj
given for what no longer legally exifts.
If a perfon, hy defire of another, ihould become his bail for one Ad^iorpayu
thoufiind i£rms which he owes, and the debtor give the furety one ^^'"^
thouiand iBrms by way of figment ^ prior to his [the furety's] having ^j^J^*^
paid the creditor, he [the debtor] is not in that ca(e permitted to take hoJtSm.
from the furety the money he has advanced to him, for two reaions. ^SS^itc^
First, the right of the pofieflbr (namely, the furety) is conneded Jfe^^^
with the one thouiand dirms on the probability of his havmg occafion f o
pay them to the creditor, and therefore whilft fuch probability exifts
the principal furety has no right to take them from him ; (imilar to a cafe
where a perfon haftily (that is, before the (hited time) pays Zakdt to
the coUedqr, in which cafe he would not be entitled to take it back
from htm. Secondly, the furety becomes proprietor of the faid fum
in virtue of the feizin, on a principle which (hall be prefently ex«
plained.— It is otherwife where the debtor gives the fum to the furety
by way of commjIJioH ; (as if he were to fay to him, *^ Take this fum
^* and deliver it to the debtor;*') becaufe the furety does not become
proprietor in virtue of fuch a feizin: on the contrary, he is in fuch
cafe merely a tn0ee.—\t is to be obferved that where the furety thus
receives the thouiand £rms^ and becomes proprietor in virtue of Tuch
receipt, he is not required to devote in charity whatever profit he
may acquire from it*; becaufe in this inilance the property veils in
him immediately on the receipt. , Where he receives it after having
himfelf paid the debt, the reafon of the property then veiHng in htm
is evident; and where he receives it before he has paid the debt, he
• That if to br, whmm jirofic may srife from it betwcea the period orhii rccetviiy \h
and thac of gmif f ing the dsinuuit.
4F a . becomes
^88 BAIL BooKXVnr.
becomes proprietor immediately on the receipt.—- The reafbn of this
is, that the furety has a claim on the debtor for an article fimHar to
that for which the creditor has a claim iipon him r hut the claim of
the furety upon the debtor b fufpended until he pay the debt to the
creditor. — The claim of the furety, therefore, is in the nature of a
debt to become due hereafter \ (whence it is that if the (urety (hotfld,
previous to his having difirhargcd the debt to the creditor, exen^t the
debtor from the claim he had upon him, (uch exemption would be
valid.)^— Now as an article f«milar to that for which the furety is re-
fponfible to the creditor is due to him by the debtor,, it follows that on
his receiving payment from the debtor he becomes proprietor in virtue
of fuch receipt.i— The degree oibafenefs^ moreover, which obtains ia
fuch a tranfȣfcion, (as (hall be hereafter fet forth) does not take eScCt^
where a right of property exifts* with refpeft to indefinite things ; as
has been already explained in treating of invalid £^cs.
Cafe oTa da- Iw bail be. given fi)F a Ko^ of wheat, and the principal deliver a
iIIm bv die JTdor of wheat to the furety,.and he fell and acquire profit by theiamc^
jS^* ^ ^^ *^^ ^^^ '^ ^^^^ ^^ acquired is, in the eye of the law, the right
^^ agisaft of the furety, on the princi{4e already explained, of the property hav-
ing vefted in him in virtue of the receipt.— The author of this work
obfervest that in his opii>ion it is moft laudable that the furety give
the faid profit to the debtor, although, in the eye of the hw, this be not
incumbent upon him : ai^d fuch (according to one paflage in the yama
Sagbeer) is the opinion of Haneefa upon this point* — ^The two difci-
ples maintain that as fuch profit is the right of the furety, he ought not
therefore to give it to the debtor :— and this alfo is related as an opinion
of Haneefa^ as well as wother, namely, that the furety ought to
beftow it in cbarity.^^Tht argument of the two difciples is that the
profit, as having rcfulted from the property of the furety, becomes
of confequence his right. — Haneefa^ on the other hand, argues that,
notwithfbnding the exiflence of the property, there is ftili a degree
7 of
CaAf.L BAIL- 589
of baieneis in it, becaufe it was in the power of the debtor to retake
the JCmt of wheat from the furety^ and deliver it himfelf to the credi*
tor; or, becaufe, in delivering it to the furety, it is probable that he
did it with a view that he (hould deliver it to the creditor. Now the
bafenefs here operates in confequence of the thing to which it relates
being ^/mUi and the mode of purging fuch bafenefs is (according to
one tradition) by devoting the profit in charity, or (according to an*
other) by g^vbg it to the debtor, as the bafenefs is occafioned by bis
right, and not by the right of the law.— This latter is the moft au*
thentic do£faine ; but it prefcribes only a laudabk^ and not an in^
eumbcnt duty; for the. right of the furety is clear.
If a peribn become bail, by defire of the principal, for a debt of one Cafe of btO
thouland Jhrm^ and the principal afterwards dcfire him firft to pur- i^^JlUJ^Sef
chafe on his account filks to the value of one thoufand five hundred
£rmsi in the manner of an aynlt^ and then to refell the iame, and dif*
charge the debt by means of the price, and the furety a£l accord-
ingly, the purchafe ib made is confidered as on bis own account,
not on account of the principal, and he muft, of confequence^ fu(lain
the lofs arifing from the aynit fcle. — An aynitfak is where a mer-
chant, for inftance, having been iblicited by a peribn for a loan of mo-
ney, refufes the fame, but offers to (ell goods to the other on credit
at an advanced price; as if he fliould charge fifteen dirms for what is-
worth only ten, and the other perfon agree to the fame* This is termed
an aynit or fubfianlial iale, becaufe it is a receiTion from a loan to a
fpecific fiAftanc€\ (in other words, the merchant declines granting
the loan required of him by the borrower, but agrees, in lieu thereof,
to fell him the doth, which is a fpecificy^^ancr;)— and it is abomi-
nable, as bemg a recefiion from a loan of money, which is ^ laudable
aftion, on a principle of avarice, which is a fordid quality. — ^With a^^t
ipe£fc to the nature of the ca(e in queftbn, our dodors have dilagreed.
..Some have aflerted, that the direOion given by the principal to the
furety infers his [the principals] being refponfible for any lois that
may
590 BAIL* BoocXVin.
may be fuftained by the putthafer in eonfequenee of the ^ymt falet
and that his direftionia this particular is not a commifnon of agency ;
for this raXovi^ that the oixitf of the principal (** purchale filks pm
** my account,**) implies this aflumptioii of refponfil^ty:— but a
refponfibility of this nature is invalid, fince refponfibility cannot hold
except in an article in which the perfon who is refpdniible huibme
intereft^ and 4io perfon has any iiitereft in the kfs on the prefent oc-
cafion. Others again fiy, that the dire£Uon in queilion amounts to a
commifTion of agency: but that it is an ktvalid commiflion, as the
filks to which it relates are not definite, neither is the frke of them
definite from an ignorance of how much it may exceed thc-amount of
the debt.— -The purchaie of the filks is, in fiift, confidered as having
been made on account of the furety, and the lofs refulting from it
falls entirely uponhim, (jr«/ upon the principal,) fince it was con*
traded by hioL
Evidence If a perTon become bail on the part of another, for whatever may
heard^ia^up- ^ provcd to be due by him, or for whatever the Kizee may decree
portortnjf agatnft him, and the'debtor afterwards difappear, and a claimant ofifer
afareiy which to prove, by evidence, that the fum due to him is one thoufand Mrms^
^hiaU^'!k! ^uch evidence is not to be admitted; becaufe here the baU b Umited
*j2P«"o»j" (o whatever the Kina may decree, as is evident from the expreflion
^baU. *' Whatever the Kdxit may decree,^* and like wife from that of
** Whatever may be proved to be due by him,'* fince nothing can be
proved but by the decree of the KSaee^ and the claim in queftion has
not this limitation:— it is therefore invalid, and accordingly the evi-
dence in fupport-of it cannot be heard.
AdccieeMfl- If ^ perfon prefer a claim before the Kdzee to this efTed, ^^ That
^rtt'ln the ** ^ abfentee owes him a thoufand dirnut and that a particuUr per-
abicAceorihe «< fon pTcfent is, by defire of the debtor, bail for the fame,^* and efla-
M^^ti^ blUh his aflertion by teftimony, in that cafe. the Kdut muft pafs a dc-
JrUliiJit* *^^ agabft both the debtor and the furety.— If, however, the bail
have
Chaf. L bail. 591
hzve been given without the defire of the debtor, the Kdzee muft in ^^^^
that cafe decree the debt folely againft the furety ; and in this inftance ^
the evidence adduced by the claimant is admitted as fufficient, becaufe
the bail is abfalute^ and not quoRJUi^ as in the preceding cafe.— >It is
to be obfervcd that the different decrees which the Kdue gives in the
cafe of bail.ti;i/i&9 and without^ the defire of the debtor, (that is, the
decree againft botb^ in the one cafe^ and againft the /uret/ only in the
other,) is founded on the difference which obtains in the nature of
thefe two modes of bail;— for bail by defire of the debtor is a ^ratui-
tous deed in the origin, and a contraft of exchange in the end; but
bail witlxnU the defire of the debtor is a gratuitous deed both in its
origin and its confequences.— Now where the claim relates to one
only, the decree cannot be extended to the other. But if a decree
ihould be pafled relative to a furety by defire, it muft neceffarily in^
elude the principal, fince the defire he exprefTed is a virtual acknow-
ledgment of the exiftence of the debt.— It is otherwife with refped
to a voluntary furety ; for as the exiftence of the debt in that cafe b
proved by his belief of it, in having undertaken the bail with regard to
it, and not by any virtual acknowledgment of the debtor, the decree
is therefore folely referred to him.— In tht former cafe, (namely, that
of bail by iijirt^ the furety is authorized to receive from the feller
what he may have been obliged to pay on his account.- Zj^ main-
tains that he is not entitled to fuch compenfation ; becaule, having
bimfelf refufed to pay, and having been compelled to it, he is of con*
ftquence in his own opinion opprcfTed ; and it is not permitted to fuch
as are opprefled ft> opprefs others.— Our doctors, on the other hand,
argoe that whenever a refufal is undone by law, the opinion. founded
upon it becomes of coniequence null.
If a perfon (ell a houle» and another become Kafocl-biUiirk^ orfo^ CaAofK^M.
CMrity againft acciJint\ on his behalf, the fecurity fo given is a dircft *''''^^*
« Dkk^ iifnilicf, praperl/, M7 p^iUi nn^imf. X^fetUUIi^iirk^ thertrore^meuit
hnlfir fiAif mej htfpm.^lti die prefent inftuice if alludes to the poffihBttj of ft daim
being afterwards fet up lo thahoufe by fone other peribo, which, if.iiibftantiatcd^ would
annul the fale.
declaration.
59» BAIL. BocMcXVIIL
declaration of the houie being the property of the feller.^ — ^If, there-
fore, the furcty Oiould afterwards prefer a claim of rig^ to the houfct
fu;ji claim is inadmi(&Ueir~The reaibn of this is, that if the fecurity
be a condition of the fale, (as if the purchaicr ihould have faid, ^* I
will buy the faid houfe, provided a particular pexibn will be fecu-
rity againd any future claim to it,**) in that cafe the completion of
the fde refts upon the agreement of the furcty ; and afterwards, when
he prefers a claim of right to tfaehoufe, he endeavours todeftroy that
which he had him(elf rendered complete : — if, on the other hand, th ^
(ecurity (hould no/ be a condition of the (ale, the furety, in that cafe,
by agreeing to the bail, did, as it were, incite the buyer to the bar*
gsun^ (fince his defire of purchafe was founded on the procurement of
bail.)— The bail fo given, therefore, is equivalent to a declaration of
the right of property of the feller*
AttirtffflMion 1^9 in the &leof a houfe, a peribn ihould atteft the bill of (ale, and
cS'fate ii Mc P^' ^^ feal to it, witliout giving any fecurity, fuch teftimony and af-
Mtttvakac to fixture of feal is not an acknowledgment of the feller*s right of pro-
^^''^*^' P^Xt ^nd hence the witnefs may, if he plea{e, afterwaids claim the
houfe, becaufe atteftation is neither a condition of fale, nor a declara*
tion of the property of the feller, as it fometimes happens that men
fell their awn property, and fometimes that of o/Arrr.— Befides, the
witneft may have made this atteftation merely as a menu>randum of
the traniadion; a fuppofition which the cafe of ^01/ could not admit
of,-*Lawyers have remarked that if it be cxprefled, in the bill of fale»
that ** a certain perfon had fold fuch a houfe, wAich is bis property^
^* fy a emnplfte and valid fale ^^^ and the peribn atteil the writing to
thb effed, '* Witnefs thereto,** this is an acknowledgment and decla-
ration of thefeller*s right of property. — If; on the other hand, he at-
teft it thus, ^^ Witnefs to the agreement of the buyer and feller/*
this is m/ a declaration of the fellcr*s right of property.
S£CTX01C.
Cbap.L bail. 59J
SECTION.
OfZAMINSt 0r GvAHANTESs.
If an agent fell the cloths of his conftltuent, and hold him(elf re« hm gw.
iponfiUo for the payment of the price to his confHtuentt— ^r^ if a Mh '^^^ ^
%irib fell the goods of his employer and hold himfelf reiponiible for uSr «•
the payment of the pricey-^he refponfibility in either cafe is ouU: J^T^ ^
FIRST, becaufe furety or bail is an engagement compelling the under*
taker to anfwer a claim; and as, in thefe cafes, the agent zxAhUzdrii
are themfelves the claimants for the price of the goods, it follows that
if they wer< refponlible for the fame, they woxild be ficurity m tbeir
wm btbalf^ which is abfurd:— and, secondly, becaufe the goods
remain in their hands in the nature of a trufl; and truflees are not
held by the law to be liaUe to refponfibility.— If, therefore, they
were held refponfible, \t would be contrary to the precepts of the
LAW.— Hence the taking of fecurity from them is null, in the fame
manner as a condition of refponfibility is null with refpcfltoatruflee
or a borrower.
If two fharers in a flave fell him by one conttaft, and each of them Tht gn*
be fecurity to the other, on behalf of the buyer, for his payment of the ^SulHim %
proportion of the price due to that other, fuch fecurity is null; be- gp^jy*
caufe if the fecurity were valid under a general copiutncarfiiip in the oilwr,iiiHA
price, it neceflarily follows that each is in part fecurity on behalf of
timjilf^ fince every member of the flave is indefinitely fhared between
them;— or if, on the other hand, the fecurity of each were valid with
refpeft to the Other^s fhare in particular, this induces a divifion of a
debt before the receipt of it, which is unlawful— It is otherwife where
two partners in a fbve fell their fhares by JUffermt contradsi-as their
fecurity to each other, for the prices refpeftivcly due, is valid, finctf
Vol. IL 4 G there
594 BAIL. BoosXVm.
there » iio fartntrjhlp in- this inftance; becaufe whatever is owing C9
each, refpeflively, in virtue of his particular contrad, appertains fblely
to himt without any participaebn of the other;— whence it is that
the purchafer is at liberty to accept the (hare of oirr of them only and to
take pofleflion of it, after the payment of the price; and alfo that ho
may take pofleiHon of the (hare of one of them only after paying to
him his proportion, notwithftaiiding he may have pucchafed both
Ihares*.
Gosmiit If a perfon become fecuriCy in behalf of another for tribute due by
Md'aShBdMHT ^^^ ^^ ^^f ^ nawiyeeb levied upon him, or for his kijfmii^^ fuch fe-
tilaUe r^*'^ curities are valid.^— Security for tributt is valid, becauic tribute is in
pofttfUwfi/. the nature of a debt, and may be a lawful fubjed of daimv a» has been
already expUined ; (in oppofition to Zakdt^ as that is a matter foldy
afFe£ting him who pays it, in the- manner of a^^, and of which bk
property alone can be the fufcgeft ;«— whence, after his death, it cannot
be dtfcharged out of his eflbas, unlefs prefcribed in his will i)^-and
with refpeA to ntwiyeek^ ifit extend only to what is juft, (fueb as
cxaJUoQS for digging a canad, for the wages of fafe guards^ for the
equipment of an army to fight againft the Infi'dclsv for the releafe of
Mtsffiilhum captives, or for the digging of a ditch, the mending of a
fort, or theconftruaionofabridge,) the fccurity is lawful in the
oj^ion of the whole of our doAors.— But linawiyteb extend to ex-
adions wrongfully impofed, that is, to fuch as tyrants extort ftom
their fubjeds, (as in the prtfent age,) tn that cafe, concerning the
validity of fecurity for it, there is a difference of opinion amongft our
modem AoGcon^^SbeiAb ImSmAke is of the number of thofe who hold
the fecurity in this infiaucc to be valid— With refpeA to kiffmit^ these
is a difference of opinion concerning the meaning of the word.-^Some
allege that it iignifies the fame with nawiyeeb^9 whalft others define
•Mmii^SfetDcxtfaordiiiirftidtWyo^ tbrYftabliiMcoatnlMlioiM, krM at
dM^fereCioA of govenunent toanfwcr anjriHirttctihs emergency of the Ibte.
A it
Chap. I. . BAIL. 595
it to be the ikcne witli Mwjsifa Ratiba^ that is, fixed impofls which
an exa£ted at (bted periods, fuch as once in the Rionth, or once in
every two or three months.— Now nawityteb means the cafual ex*-
adions made by the fovereigti, which have no fixed or ftated period.
The law, however, is as above explahied, with refpecfc to both. If,
therefore, the exa<£tion be right, then the Security for it is bwful, ac-
cording to all our doctors ; or if wrong, there is a dilagreement with
nfped to the validity of the fecurity*
If a peribn lay to another, '^ Lowe you a debt of one hundred l^i^^frace
^ Srms^ payable a month hence,** and the other aflert that the debt ^t
28 inunediately due, his aflertion, as claimant, is to be credited.— But flf^Jj^lff"
if a perfon (hould declare to another, ^^ I am fecurity to you, in be-
^ half of another, for a debt of one hundred dirmi payable a month
^* hence,** and the other aflert that the debt is due immediately, the
declaration of the furety is to be credited.— The difference between
thefe two cafes is, that in the^nix^ cafe the debtor makes an acknow«
Icdgment of the debt, and then claims his right to a fufpenfion of pay-
ment for one month; whereas ui the htttr cafe the furety makes no
acknowledgment of the ^^/, inafmuch as the obligation of the debt
does not refl upon the bail or furety, as has been often before ex-
plained.— In fit&, he has fimply acknowledged a claxtn^ to which he is
refponTible after the lapfe of a niontb^ which the claimant denies, af^
ferting that he is anfwerable for fuch claim inmie£aiefy\^zxA regard is
paid, in law, to the affirmation of the defendant.— A claufe olifuf-
fenfion^ moreover, is meiely an accidental property of a debt, and not
an eflential, whence it is that it cannot be proved unlefs it have been
exprefsly Itipulated.— The affirmation, therefore, of the perfon who
denies the (tipulation of fuch condition is creditable,— in the £ime
mamier as in the cafe of a caidition of option, in fale.*-^^// under
afufpenfim^ on the contrary, is one fpecies of bail, in which the
being fufpcnded in its operation is an inherent quality, and not an
accident; whence this Ipecies of fufpenfion may be proved without
4 G a having
596 BAIL. BookXVIII.
having been ftipulated; as where, for inftance, the debt due by the
principal i$ a fufpended debt. According to SbifiU the affirmation of
the clamant is to be credited in either cafe;* and the (ame is related as
an opinion of Aim Too/of.
Baa «gi!iift If a perfon purchafe a female flave, and another warrant her to be
Sr^'of'a the property of the feller^, and flie afterwards prove to be the pro-
*^^^ P^>^7 of fome ciber perfon^ the purchafer is not entitled to exad the
price from the furcty, until the Kdxee ihall have firft palled a decree
againft the feller for the reftitution of the price; — becaufe, according
to the ZibhrRawSyet^ the fale does not become null immediately on
the proof of the fubjed of it being the property of another, but en-
dures until the Kdzee pafs a decree in favour ofUxe purchafer, direft-
ing the feller to return the price* Smce, thereforct previous to the
iffuing the faid decree, it is not incumbent on the principal (that is,
the feller) to make reflitution of the purchafe money, fo neither is it
inciunbent on the furety. It would be otherwife if the flave were
proved to htfree^ and the Kdzee pafs a decree to that efied, for in
f lich cafe the fale becomes null immediately on the ifluing of fuch de*
cree, fince freedom is incapable of being the fubjeft of £Je, and the.
buyer would, therefore, be entitled to exaft the purchafe -CDoncy
either from the furety or from the feller, without waiting for a decree
of reflitution from the Kdzee. — It is related as an opinion of jiboo Tach-
Jaf^ that fale becomes null immediately on the proof of the fubjed of
it being the property of another ; and that, confequently, the buyer
has in fuch cafe a right to exa£^ the price either from the furety or the
feller, without waiting for the decree of the K&zce to that efieft.
Sccttfity for lp a peHon purchafe a flave, and another be fecurity for the fulfil-
-jjjf^ *• rocnt of the bargain f, fuch fecurity is null; becaufe the word Qbda^
^ Litciallf, « eni emUr hi leilegahjl 4aUintr f Arab. Zimin ha Ohde.
5 [fulfilment]
CuAv.L BAIL. 597
[fulfilment] is of a comprehenfive nature, as having a variety of mean*
ings. L It ftlates to the former bill of fale, which the feller received
from the perfim who fold the flave to him ; and this being the pro-
perty of the feller, any fecurity with refpeft to it is invalid. IL It
relates to the contrail and its rights. 111. It relates to a warrant or
iecurity agamft accidents. And, IV. To option.— As, therefore, the
term comprizes fo many things, the particular application of it is du«
bipus ; and hence practice cannot take place upon it.— It is different
with refped to the term ^/ri(, for although that fignify whatever
nuy hafptn^ yet the cuftom of mankind has retrained the application
of it to one particular fenle, namely, a fecurity againfi any future
clmm\ and Zhntn-bil-dirk^ or fecurity agauift accident, is therefore
valid*
If a perfon fell an article, and another be fecurity to the pur- Sccariixfera
chafer for the relfeafe* of that article, fuch fecurity is invalid, ac- -fij^i^io
cording to Haneefa^ as the intentbn of it is the releafe of the ar- !^^!^^^
tide, and the delivery of it to the purchaler, which the fecurity
is not competent to perform. — The two difciples bold this to be
valid, as in their opinion it is equivalent to a fecurity againft ac-
cident ;«^in other words, it imports an obligation to deliver to the
purchafer either the article fold, the value, or the price;— and fuch.
being the cafe, it is valid of courfe.
• Anb. KkStlu: fBcaning, tbe)!imn&r pf the utidc^ by the (dler,.cc ihepai€liife&
CHAP.
598 BAIL IJcoitXVIlI.
CHAP. II.
Of Bail in which two are concerned.
Cafe cif two If two men owe a debt in an equal degree, and each be fecurity on
a^jointprin- behalf ofthc other, — as where, for inftance, two pcrfons purchafe a
d b*'***dLil "^^^'^ jointly, and each is fecurity on behalf of the other,-^in this
foreicbothcr. cafe, if either of them pay off a part, he has no right to make any
claim on the other :-*-unlefs, however, the payment fo made exceed
a half of the whole debt, in which cafe he has a right to exaft fuch
excels from the othen — The reafon of this is, that each of them is a
principal with refpe£t to one half of the debt, and a fecurity with re-
fpe£t to the other half; — ^for what each owes in virtue of his being a
principal is no bar to the obligation upon him as a fecurity, the one
being founded on debt, and the other on a claim, which is fubordinate
thereto. — ^Whatever payments, therefore, either of them may make
are held to be in virtue of the former, namely, the debt, as far as
that extends; and any excefs is referred to the latter, namely, the
fecurity.
Cafe of two If two perfons htballfor property in behalf of another, — ^in this way,
mbSS*^« that each furcty, rcfpeaively, holds himfclf refponfxble for the other
third, to the furety,— in this cafe, whatever either furety may pay, [in virtue of
whouT claim! the bail,] whether the fum be great or fnudl, he is entitled to exa£t
JJiSl^'Sl ^^ half of it from the other furety. — This proceeds upon a fuppofition
h * w I ^^ ^^ ^^ ^^^^ ^^^ furctics, reipefldvely, is bail for the whole pro-
sify, perty on the part of the principal, and likewife for the whole obliga*
tion on the part of his co- furety. Hence in each of the two fureties
two bails are united ; one on behalf of the principal, and one on behalf
of the co-furety ; and bail on bdialf of ayicrr/f is lawful, in the fame
manner
Chap. IK BAIL.
manner as on behalf of a principal^ or as a transfer on behalf of a
transferee; becaufe the intuition of a contraftof bail is undertaking tlje
Mgatmofa claim; and this end is anfwcred by bail on behalf of
a furety.— -Asy therefore, two bails are ia this cafe united ia each of
the fureties, it follows that whatever pajrments are made by either of
them are made, in an indefinite manner, on account of both ; for the
payment {q made was purely in virtue of the bail; and each, with re-
fpeA to the bail, frauds in the fiime predicament; that is to fay, neither
has a fuperiority over the other.— (It is otherwiie where each furety
is a frincipal with refpe£t to part of the debt, as in the ^rji example i
for in this cafe neither has a right to exaft any thing from the other on
account of the payments he may make, unlefs fuch payments exceed
the fum for which he is a principal, becaufe the principal has a fupe-
riority.)— Now fince, in the cafe in queftion, whatever payments
either of the two may make are made indefinitely, on account of both,
it follows that the perfoh making fuch payments is intitfed to exact
the half of them from the other. And this induces no unncceflary re-
volution, becaufe the intention of the contra^, in the prefent inflance,
b that the parties be on a footing of perfect equality with rcfpeft to the
bail, which can only be anfwered by the one party taking from the
other the half qf what he may have paid.— The other, therefore, is
not entitled to retake it again from the perfbn who has flrfl paid,
becaufe this, if permitt«I, would deflroy the equality aFready efla-
Blifhed. — (It is otherwife in the prtctUng cafe, for there each of the
parties is a principal with refpeft to a ponion of the debt, and confe-
quently they are not on a footing of perfedl equafity with refpcA to
the toil.)— When, however, one of the parties (hall have taken the
half from the other, then they are jbintly'rntitled to exa£t the whole
of what has been paid /rom the principal; fuice they paid*the fame
on his behalf; the one making the payment inmiediattly from himfelf,
and the other doing it, as it were, by his fubfHtute:— or the furety
who paid is at liberty, if he pleale, to exa£b the whoFe of what he paid
from the principal, becaufe he was bail for tfie whole of the property
by
599
«oo BAIL. BooKXVin.
by his de(ire.-^Ify in this inftance, the creditor txen^t one of the two
fureties, he has a right to claim the whole from the other, becauie
the exemption of a furetjr does not operate as an exemption in favour
of the principal, and therdbre die whole of the debt remains doe bj the
latter ; and the remaining furety being ftill bail for the wbok of the
property, it is coniequently lawful to claim the whole from him.
Uitut dtflb. If two partners by redprocity diflblve their copartnerfhip, and (e-»
l^i^pafu P^r^te, whilft (bme of their debts ftill remain due, the creditors have
BcHkip. nek j,j j^jt ^{^ ^ ngh^ xo claim the whole from whichever of them they
piftacr 1$ re- ° ^
fponiabie for pleafe; becaufe each of thefe partners is furety for the other, as has
cotitriAed been already explained in treating of partnerfliip. — Ndther of the
^^^^p^ partners, moreover, has a right to make any claim upon the other
for whatever payment he may have made to the creditors, unleis
^ fuch payment exceed the half of the debt, in which ca(e he has
a right to exaA from him the payment of fuch excefs, for the
reafou already explained, in difcuiling the cafe of reciprocal bail by
two.
Cafe of two If 3 mafler conflitute two of his flaves Mokdtibs^ by one con-
oQoidMtliCT'^ traft, for a thoufand Jinns^ (for infbncc) and each of them become
behalf, for bail foT the other, in that cafe, whatever fum, from the whole anK)unt
covenanted to be paid by the mafter, is difcharged by either, the half
of that fum may be exacted from the other. — Analogy would fuggefl
that the bail, in this infhnce, is not valid ; becaufe bail is valid only
when oppofed to a valid debt : and the confideration ofKitSat^ or the
degree of freedom beflowed upon a Mokattb^ is not a valid debt, as
has been already explained.— It is lawful, however, upon a favour-
able confh'udion, by conftdering each of the flaves as a principal with
refpeA to the obligation of the whole confideration o^KhSbat^ namely,
a thoufand Snnsi-An other words, by coufidcring each of them,
refpeAively, as being refponfible to the mafler for the payment of the
whole; and, confcquently, that upon his making payment of the
wholct
Chap- II. B A I L. 60 1
whole, the other obtains his freeddcn as a dependant, — in this ^vay,
that the freedom of both is fufpended on their payment of one thou-
land dirms^ and the mafter is at liberty to claim the faid fhoufand from
t»ch of them; refpedively, as a principal^ not as a furety. Each,
however, is confidered as furety on behalf of the other, with refpedh
to exa^'ng a moiety of what he pays on account of the confideration
of Kitdbat. — (A particular explanation of this will hereafter be given in
treating of Mokdtibs.) — From the explanation of the law in this cafe it
appears that both flaves are «qual with refpeA to the payment of the
thoufand Jirms^ which is the confideration of their KitSbat ; and hence
each is refpeftively entitled to take from the other a moiety of what-
iever part of the £iid thoufand dirms he may pay. — If the mafter, in
this cafe, fhould emancipate one of the flaves pfior to bis having made
any payment on account of his Kitdbat^ in that cafe he becomes free;
becaufe his maftcr, whofe property he then was, chofe to emancipate
him. — He becomes likewife exempted from any obligation to pay his
half of the confideration of Kitdbat^ becaufe he acquicfced in that ob-
ligation merely as a means to obtain his freedom : but upon his be-
coming free in confequcncc of the emancipation of his mafter it exifts
no longer as a mean, and therefore ceafes altogether. — The obliga-
tioni however, for the payment of an half, ftill continues incumbent
upon the other ^ who remains a flavc ; becaufe the whole amount of
the confideration was oppofed to the bondage of both; and the whole
was confidercd as due from each, refpcf^ivcly*. merely as a device, in
order to rendfer the bail of each in behalf of the other valid, and thereby
to enable each to take from the other a moiety of what he pays.
Bud when the maftcr emancipates ont of them, there exifts no further
ncceflity for this device; whence the debt is then confidered as oppofed
to them both, jointly^ (not, in toto.Xo each refpe^ivcly,) and is ac-
cordingly divided into t^vo feparate parts, of which one ftill conti-
nues due from him who remains a flave. — In takiiig this portion, the
mafter Is at liberty either to exa£k it from the JreeJman^ in virtue
of his being fecurity^ or from the Jlaroe^ becaufe of his being the
Vol. II. 4. H prlnclpaL
6o2 BAIL. Book XVIII.
principn/.-^U he take it from the freedman, the freedman is then
entitled to retake it from the flave, becaufe of his having paid it by his
defire : but if he take it from the flavCf he [the flave] is not entitled to
take any thing from the freedman, becaufe he merry pays a debt
which be juftly owes.
CHAP. III.
Of Bail by Freemen in bohalf of Slaves^ and by Slaves in
behalf of Freemen,.
A perfon be- If a perfon be furety in behalf of a flavc^ for fbroe thing not
on'behfffrfii claimable from the flave until after he recover his freedom, without
flave for a fpccifying whether the thing m quedion is claimable immedLitely^ or
which' the hereafter, in that cafe it is to be confidered as immediately due; —
^br"T f ^^^' ^^ ^^ ^^y^ *^ *^ claimable immediately from the furety. — ^For in-
ter emaiicipi- fiance, if an inhibited flave acknowledge his deftru^ion of the pro*
chTi^lffm* pcrty of any perfon,— or that he owes a debt which his mafter dif-
ifiediaidy. avows,— or if, having married without the confent of his maAer, he
fliould have had carnal connexion with the woman on the fuppofltion
of fuch marriage being valid, (in all which cafes nothing could be ex-
acted from the flave immediatefy^ nor until he become yr«,) and a
perfon be a furety for the compenfation eventually claimable from the
flave, he is liable to an immeJiate claim for it. The reafon of this is»
that the flave ought immediately to difcharge the compenfation, be-
caufe there exifls an evident caufe of its obligation upon Kim, and a
flave, in virtue of his being a man, is capable of being fubjcA to ob-
ligation. He is, however, exempted from an immediate cbim for the
compenfation»
Cha?. III. BAIL. 603
compcnfation, becaufe of bis poverty, fince everything he podefles
is the property cf his mailer, and his mailer is not alienting to
the obligation. The furety, on the contrary, is not poor, and
is therefore liable to the claim immediaUfy^ in the fame manner as a
perfon who becomes furety for an abfenue or a pauper, — It is other*
wife where a peribn becomes bail for a Jibt not immediately due, tor-
there the yZrrr/yalfo is not liable to an immediate claim, any more
than the debtor, flnce the debt is fufpended in its obligation to a future
period by the confent of the creditor.— 't is, however, to be obfcrved
that, in the bafe in queftion, the furety, onrdifcharging the claim upon
the flave, is not entitled (o demand it from the flave until he ihall
have obtained his freedom; becaule the creditor had no right to de-
mand it until that event; and the iiirety ftauds iu the place of the
creditor.
If a perfon advance a claim on an unprivileged flave, and another Biil for the
become furety for his perfdn, and the flave afterwards die, the furety is flm'is' €«n.
in that cafe relealed from his engag^ent, becaufe of the principal being J^ ^^ ^'*
releafed.— *(The law is the (ame where the flave, in whofe behalf bail
for the peribn is given, is imancipated)
If a perfon claim the right of property in a flave, and another be- Bailtoaciaim
come furety in behalf of the poflcflbr of him, and the flave then die, SlJfLbJai
and the claimant eftablifli his right by witnefles, the furety is in that J^ ^"^yil^
cafe refponfible for the price ; — becaufe it was incumbent on the pof- in ^ «vcet
feflbr to repel the claim, or, if he failed in lb doing, to give the value deceafe. *^^ '
for which the furety became anfwerablc; and as the obligation, after
the flave*s death, refts upon the principal, fo alfo it now rcfls upon
the furety. — It is otherwife in l\it preceding cale; for there the obli-
gation was merely to produce the perfon of the flave, which is can-
celled by his death*
4H2 If
6o4 BAIL. Book XVIIL
B«ii by * If a flavc, who is not in debt, be lurcty for property in behalf of his
hair or hit' mafter, or any other man, and be afterwads made free, and then pay
Tmafterlii*^ thc amounc for which he was furcty, — or, if a mailer become furety
behalf or his for property in behalf of his (lave, whether he be indebted or not, and
a^ord rnV" ^^^ emancipating him, pay the amounc for which he flood lecurity,
cSm V^thc ^^ neither of thefe cafes is cither of thc parties entitled to take any
fttfcty ufion thing from thc other. — Zifer maintains that in both iheie caies the
I c princip . pj^j.jj^g i^j^y^ ^ j.jg|jj j^ j^g^^j. j^ ^^^ ^jj^^ . ^jjjjj ^^ ^^ '^ entitled to-
take from the other what he may have paid. — (It is here proper to
remark that the reafon for reftricUng the flave, in the firft cafe» to
one that \%frcefrwn debt is, that if he were otherwiie, he could not
be furety for property in behalf of his mafter, (incc this would atFe£t
the right of his creditors^ — ^The argument oiZifir is that a ground, of
claim, (namely, bail by defire of the principal,) exifts in both cafes;
and the bar to its operation (namely, JUfotry) is removed and done
away. — ^The argument of our do^rs is that the bail in thefe cafes* is
not in thc beginning a ground of claim, fince neither can the mailer
have a debt due to him by his (lave, ilor can the (lave liave a claim of
debt upon his mafter. — ^Hence as no ground of claim exifted in the be-
ginning, it does not afterwards take place, in confequence of the re-
moval of the bar to it, (namely, flavery;) for tKe law here is the
fame as where a perfon becomes furety for another without his delire,
in which cafe the iuhfequent a(rent of the furety is of no eJcd.
Thecoafider. Baxl for the confidcration of Kit6bat^ whether the furety be a
^hM^iAt^'X ^^<^ ^^ ^ freeman, is not valid; brtcaufe. the con(ideration of KUdbat
blSf' ^^ ^ allowed to exift as an obligation merely from neceffity, it being re-
pugnant to reaibn, inaiinuch as a mafter cannot have a claim of debt
upon liis (lave; and in the cafe in queftion thcAftiiri^, or per£>n who
owes the confideration oiKitibat^ is fuppofed the (laveof the claimant* —
Hence the confideration of Kiiibat is not fo fully eftabliihed as to ad-
mit of bail for it,— becaufe wherever a thing is eftabliihed from ne-
ceffity.
Chap. UL B A I L. 605
ceflity, it is re(lri£ted entirely to the point of neceility. Befides, the
debt ofKitdiat ceafes entirely in cafe of the inability of the flave to
difcharge it ; nor is it polHble to revive it, by claiming it from the
furety, becaule the meaning of bail is *^ i6e juniiion of one perfin to
^^ another per/on in relation to a claim.— h%^ therefore, the claim
does not operate upon the principal, it of confequence ceaies with re-
gard to the furety; becaufe it is a rule that a principal and his lurety
are both equally liable for the fame daim.
A CONSIDER ATXOK, in licu of emancipatory labour, refembles the lot & coi^.
confideration oiKtdbat^ in the opinion o^Haneefa^ becaufe, (accord* 1!^^^.
ing to him,) a flave that works out his freedom by labour is in the j^'^ '^
fame predicament with a Mokdtib.
hedAta.
( 6o6 )
H E D A T A.
tCfflU.
BOOK XIX.
Of HAWALir, or the TRANSFER of DEBTS.
DefiaitioB of TTAWALIT, in Its literal fcnfc, means a rmoval; and is derived
Xx from Tabooi^ which imports the removal of a thing from one
place to another. — In the language of the law it fignifies the re-*
moval or transfer of a debt, by way of fccurity and corroboration, from
tlie faith of tlie original debtor, to that of the perfon on whom it is
transferred. The debtor or perfon who transfers the debt is termed
Nhbetl: the transferee, or per(bn upon whom the debt is transfeired,
Mabtal'oli bre^ and the creditor, or transfer receiver, Mobi4L
The
Book XIX. TRANSFER OF DEBTS. 607
The transfer of a debt is lawful ; becaufe the prophet has (ald^ The trinsffr
•* IVbenever a per/on transfers bis debt upm a rich man^ and the ^^ * ^^
" crediter ajfents to the fatne^ then let the claim be made upm the
*^ rich tnan*^^ and alfo, becaufe the perfoa upon whom the debt is
transferred undertakes a thing which he is capable of performing;
whence it is valid^ in the fame manner as bail. — It is to be obferved^
however, that transfer is reflrided to debt ; becaufe it means an ideal
removal; and an /Vm/ removal, in law, applies to i/^^/, and not to
fubjlance^ which requires zfenfible removal,
A CONTRACT of transfer is rendered valid by the con fent of the u rendered
creditor and transferee. The confent of the creditor is requilite, be- conL^onhe
caufe the debt (the thing transferred) is his due; and mankind Iwng creditor and
of difrercnt difpofitxons with refpect to the payment of dcbts^ it is *""•'•••
therefore neceffiiry to obtain his confent. — The confent of the tranf-
ferae isalfo requifite, becaufe by the contrail of transfer an obligation of
debt is impofed upon him, and fuch obligation cannot be impofed with-
out his confent. — The confent of the piincipal^ on the contrary, is not
requifite, becaufe (asMoAfl/ziwr^obfervcsin the Zeeaddt") theengagement
of the transferee to pay the debt is an acl relative to himfelf, wliich is
attended with a benefit to the principal, and is no way injurious to
him, inafmuch as the transferee has no power of reverting to him, in
cafe of having accepted the obligation without his dcfire.
When a contra^ of transfer is completed, the Mobeelj or perfon It excmpct
who makes the transfer, is exempted from the obligation of the debt, Jvom^^^
becaule of the acquiefcence of the transferee.— -Z^r has faid that he "^^»
is not exempted, becaufe of the analogy which fubfifts between this
cafe and that of bail ; for they are both contrads of (ecurity or corro-
boration; and as, in the. cafe of bail, the perfon who is bailed
does not become exempted from the debt, fo neither ought the trans-
ferrer iu this cafe. — Our doctors, on the other hand, agree that Ha*
wdlit literally means removal; and when a debt is removed from the
7 hdih
6o« TRANSFER OF DEBTS. Book XIX.
£uth of one perfont it cannot afterwards remain upon it. — Bail, on
the contrary, means a jundion; and the intendment of it is, that the
bailer unites his faith to that of the furetee with refpecl to the claim.
— Now the decrees of the law proceed according to the literal mean-
ing; and the object of transfer, namely, corrataraiion^ is obtained
when a perlbn that is rich and a fair dealer acquicfces in the obligatioa
of the debt, as it is to be fuppofed that he will readily fulfil his
obligation.
Objection. — If the debt (hift from the faith of the debtor to that
of the transferee, it would follow that there can be no compulsion on
the creditor to receive payment from the debtor, where he oSen to
difcharge the debt ; in the fame manner as a creditor is not com*
pellable to receive payment of his debt from a ftranger in a gra-
tuitous manner.
Reply. — The creditor is compellable to receive payment of the
debt from the debtor, if he offer to make payment, becaufc the daim
may eventually revert upon him, in cafe of the deftru£Uon of the debt;
fmce if the transferee were to die infolvent, without having paid th»
debt, the claim would revert upon the transferrer, for reafoDS that
will be fhewn in the next cafe. — Hence, the payment of the tnaf^
ferrer cannot in every refpect be conlidered as gratuitous^ like that of
a flranger.
ttnkfi the The Creditor is not entitled to make any claim upon the tranl^
dMvf^be. fcrrcr, excepting where, his right on the transferee being deftroyed,
CMC onable he cannot otherwile obtain it ; in which eafe the debt reverts upon
cngagtiLcnu the transferrer. — Shafii alleges that the creditor has no right to make
any claim for his doe upon the transferrer, although his right be de-
(Iroyed ; bccaufe, in coniequence of the transfer, the transferrer be*
comes exempted from the debt; and this exemption is abfolute, and
not reftri^ed to the condition of payment ftooi the transferee.*—
Hence the debt cannot revert upon the transferrer, except onaccoiint
of fome new caufe ; and none fuch is to be found in this cafe.— The
6 argument
Book XIX- TRANSFER OF DEBTS. 609
argument of our doctors is that, although the exemption be abfolute,
in the Urms of the coiitra£t, yet it is reArifted, in t)^tfettfc^ to the con-
dition of the right being rendered to the creditor. The transfer is there-
fore diflblved in cafe of his right being deilroyed ; becaufe the con-
trad is capable of diflblution, and may be diflblved by the agreement of
the parties.— -The condition, moreover, of the fafe delivery of the debt
to the creditor, is equivaicot to that of warranting the fubject of a fale
to be free from blemifti ; that is to fay, luch a warranty implicitly
exifts, as a condition, in every fale, although it be not fpecihcally
mentioned; and, in the ikme manner, the lecurity of the debt ezifts,
as 1 eofidition^ in a contraA of transfer, although not fpecified in it.—*
The deftrudion of the debt due to the creditor in a cafe of transfer
Is eftabliflied, according to Haneefa^ by one of two circumftances.
L Where the transferee denies the exigence of the contraA, upon oath,
and riio creditor cannot produce vitnefles to prove it. II. Where
the transferee dies poor. — In the event of either of thefe circumdances
the ^ebt is deftroyed, iince in neither cafe is it pra£Ucable for the credi*
tor to receive payment from the transferee. — ^This is the true mean-
ing of a deftru£Uon of the debt in a cafe of transfer. — ^Thc two diiaplcs
maintain that % deftruftion of the debt is occafioned by one oi three
circumftances. Of thefe, two are the fame with thofe above recited;
and the /i6/r</ is, — ^ declaration, by the magiftrate, of the poverty of
the transferee during his life- time.-'— This third circumftance is not ad-
mitted by Hanufa ; becaufe, according to his doctrine, poverty cannot
be eftabli/hed by the decree of the magiftrate, fmce property comes
in the morning and goes in the evening ; but, according to the two
difciples, the decree of the magiftrate eftabliihes poverty.
Ip the transferee ftiould demand, from the transferrer, the netnaf-
amount of what he has paid in virtue of the transfer made upon hinit ^f^^^
and the transferrer aiiirm that *^ he* had made fuch transfer upon dcdcbm Ar
•• him, in exchange for a debt of the fame amount which be owed fefitjJSJij
** bm^^ the affirmation of the transferrer is not admiflible, and
he is bound to pay the demand of the transferee, becaufe the
Vol* IL 4 I reafn
6io TRANSFER OF DEBTS. Book XIX.
reafm of iuch demand^ (namely, the alinal payment cf it by bis
defirt) is eftablifhcd.— The transferrer, moreover, aflerts a claim
which the other denies; and the afErmation of the defendant is
creditable.
Objection.*— It would sfppear that the aiHrmation of the tranf-
feree is not to be credited, although he be the defendant ; becaufe
he has acknowledged what he afterwards denies, inafmuch as his
acceptance of the transfer is a virtual acknowledgment of the debt ho
owes to the transferrer.
Reply. — The acceptance of the transfer is not an acknow-
ledgment of debt due to the transferrer, becaufe contrafbs of tian(^
fer arc fometimes made sirithout the transferee's owing any thiag
to the transferrer.
A debtor may If a perfon, having depofited a thouiand Arms with another^
ddb/tji' « Should afterwards make a transfer on it, (as if he were to defira
fhT^hwit'of ^** creditors to receive payment of his debt, from a depofit placed
anocher per. by him with fuch a perfon,) fuch transfer is valid, becaufe the
truftee is capable of difcharging the debt from the depofit.-— If^
however, the depofit he deftroyed, the transferee (who is otherwife
a truftee) is in fuch cafe releafed from the engagement of transfer;
becaufe the transfer was reftri£ted to the depofit, fince the truftee
engaged no further than the payment of the debt from the amount
of the aftual depofit. — ^It is otherwife with refped to a transfer re-
ftrifted to ufurped property ; for if a peribn were to make a tratiA
fer on an ufurper, on account of fpecific property ufurped by him,
and the laid property be afterwards deftroyed, the transfer fo made
does not become null: on the contrary, it is incunibent on the
ufurper to pay the creditor a fimilar,— or the value, in cafe the
property in queftion had not been an article of which the unities
were fimilar;— becaufe,^ as a fimilar or the value is a reprefentative
ci the thing itfelf, the property in this cafe is not held to have
been dcftroyed.
It
Book XIX. TRANSFER OF DEBTS. 6m
It is to be obferved tbat transfers arc fometimes reftritScd to A tranifer
debts due by the transferee to the transferrer;^ — and in all cafes of iiriactf to'
fuch reftrifted transferSt the law invariably is that the transferrer Jj^ jj^^^
has no right to make any claim upon the transferee, for the fub- •J*"^?* ^
fiance or the debt upon which he lias made fuch transfer ; be-
caufe the right of the creditor is connefted with it, in the fame
manner as that of a pawnholder is conneded with the pawn ;
and alfo becaufe, if fuch a right remained with the transferrer, the
z& of transfer (which is the right of the creditor) would be ren-
dered null««~It is otherwife with refpedl to an ai/o/uu transfer;
(that is, where a perfbn (imply fays to his creditor ^* I have tranf*
** fered the debt I owe you upon a paiticular perfbn,** without
making any mention of debt being due to htm, or of fpecific pro-
perty of his being in the pofleiHon of that perfbn, whether from
depofit or ufurpation ;) for in this cafe the right of the creditor
does not relate to the property of the transferrer, but refb entirely
upon the faith of the transferee ; and hence if the transferrer fhould
receive payment of the fubfbuice or debt due to him from the tranf-
fereci ftill the transfer does not become nulL
SiFiTjA is abominable-)-; fiai is tojay^ the giving of a loan of Thclou of
any thing in fuch a manner as to exempt the lender from the danger ^21/ of^
of the road ; as, for inftance, where a perfbn gives fbmething by ^'^}ff^*
way of loan, inflead of a depofit, to a merchant, in order that
he may forward it to his friend at a difbnce. — ^The abomination in
this cafe is founded on the loan being attended with profit, inafmuch
as it exempts the lender from the danger of the road^ and the pro-
phet has prohibited our acquiring profit upon a loan.
t That is CO iky, it is difiipprovcd, although not abfolutdjr UlqaL (See the loeaa-
iiig of the term 4ibcmiiaUi^ p. 428.)
*•-
4 I a HEDATJ,
( 6X2 )
HE DATA,
BOOK XX^
Of the Duties cf the KA ZEE.
Chap. I. Introductory.
Chap. II. Of Letters from one K&sie to another.
Chap. III. Of Arbitration.
Chap. IV. Of the Decrees of a Kazee relative to inheritance.
C H A P. L
XKmwmA^ I ^HE authoVity of a K£zee is not valid, unlefs he pofIe($ the quali-
^^^£^a, X fications neceflary to a witnefs; that fs, unlefs he be free, fane,
of amr«^. adult, a Mujfulman^ and unconvicted of flander ; becaufe the rules with
refpeCt «to juriOiCtion are taken from thofe with relpcA to evidence,
fince both are analogous to autboriiy ; for autbcrity fignifics the faff-
i^g or giving effeU to a fenttnu orfpeecb affeSing anothr^ either \uiih
«r Without bis cmfenti ^ evidence and juiifdiftion are both of this
nature.
Chap. I. DUTIES OF THE KAZEE. 613
nature^ — (The rules with rcfped to jurifdiaion are here faid to be
•• taken from tbofe with rtffeH to tvidence^^ becaufe, as the fcntencc
of the KSxet is in oooformity with the- teftimonv of the witnefs, it
follows that the evidence is, as 'it were, the principal^ and the decree
of the Kizic the confejuent.)—A% therefore, jurifdi£kion, like evidence,
is analogous to authority,.it follows that whoever pofleiles competency
to be a witnefs is alTo competent to be a Kdzeei and alio, that the
qualifications requifite to a witnefs are in the fame manner requifite ta
a ATilss^r— and like wife, that an unju/l^ man is qualified to be a KAsee ;
ti^hence if fuch a perfbn be created a lOb^e^ it is valid, but ftill it is
lK>t advifeablei in the fame manner as holds with fefped to evidence;
^-thatis, \SzKizee accept the evidence of an unjuft man, it is valid,
in the opinion of all our do£brs ; but ftill it is not advifeable to ad-
n ^ the teflimony of fuch a perfbn, fince an unjuft man is not de-
ferving of credit.
If a Kjkee be a juft man at the time of his appointment, and after- He does aoc
wards, by taking of bribes, prove himfelf an unjuft man, he does not ^^f^^JJ?*^
by fuch ooKiduA become difcharged from his office,-— but he is, never- coodua.
thelefs, dcferving, of a difiniffion. — ^This is the do£krine of the Zibir
Raw/fyet; and it has been adopted by modem hwytrsr^Sb^ei main-
taLis that an unjuft man is incapable of the office ciKduCf in the £une
manner as (in his opinion) he is incompetent to.give evidence.~-It is
related in the Nawadhr^ as an opinion of our three dodlors, that an
unjuft' man is incapable of difcharging the duties of aiC&s^.— Some
of the moderns have alio given it as their opinion that the appointment
of a man originally unjuft, to the office ofKdzee^ is valid; but that
if, having been juft at the time of his appointnient, he afterwards be-
* Arab. P4/Q.— In fixne inftances the torn applies merelf to a pcrfon of loofe cha-
nSta and iodeoorous behaTiour. (See Vol. I. p. 74.} In die prefenC inftance, bow-
Ofcr, Oe chancer aUb includes mmi tfimipit:^^ as.appeaiaa litdeJower down.
come
6i4 D U T I E S O F Book XX.
come unjuft, he (huids difchdrged from his office; becaufe, a$ the
Sultan appointed him from a confidence in his integrity^ it is to be
prefumcd that he will not acquicfce in his diicharge of the duty
without integrity.
A Mr/iei A QyESTioK has arifen, whether an unjuft man be capable of
UMofp^' ^uig ^ Moaftee^x and on this fubjed difi^rent opinions have been
**''"^^* given.— Some have faid that he is incapable of being a Mixftee^ be-
caufe the giving of a Fitwa (or ftatement of the law applicable to any
cafe) is conne^led with religion, and the word of an unjuft man is not
creditable in matters relative to religion.— Others again have faid, that
an mijuft man is aipable of b^ng a Motftee^ becaufe of the probability
that he will tdl and labour in thedtfcharge of his duty, left the people
charge him with his faults. The former, however, is the better opi-
nion.— Some have eftablifhed it as a condition, that a Kdzec be a Mooj*
tabid^ : the more approved dodrine is, however, that this is merely
frefcrabU^ but not indifpenfabk.
An iffnrmn The appointment of an ignorant man to the office of Kdsee is
C'wJbil ^^*^» according to our doaors.— ^A^i maintains that it is not valid;
ft iUiii. fof he argues that fuch appointment fuppofes a capability of ifluing
decrees, and of deci<Ung between right and wrong; and thefe a£ts
* ifii^iV/i an expounder of the l AW.r-At the offices of JUsh and M^/ut are fre-
quently confounded by European writers, it nuy not be improper to remarlci in this places
that the word JUza (or Cs£) h derired from Kaxi^ fignifyiiig jurifiSaUn^ and MhJU^
from Fltwa^ meaning an ^ippButhm or Jl^mai of the t aw.— The M^ofiee^ therefore^
is the officer who txpnauU and appUcs the law to cafis, and the KJUu the officer who gives
it operation and eSe^l.
t M-yMi is the higheft degree to .which die learned in the law can attain^ and
was formerly conferred by the MUrifis^ (or colleges); of which one of the firft in.
fiances occurs in the life of lUn^tfa^ whom all the katncd acknowledge as their fuperior.
cannot
Chap. I. T H E K ji Z E K 615
cannot be performed without knowledge. — Our dolors, on the other
hand, argue that a Kdzee*s bufinefs may be to pals decrees merely on
the opinions of others. — ^Thc obje£k of his app<nutment, moreover,
is to render to every fubjeS his juft rights ; and this objed is accom-
pliflied by pafling decrees on the opinbns of others.
It is incumbent on the Sultan to feled for the office oi K&cee a u it tbe aut^
perfon who is capable of difchargtng the duties of it, and pafling de- ^^ ,J7^
crees ; and who is aUb in a fuperhtive degree juft and virtuous; for P*« *^^-
the prophet has faid, ^* fFhoever affoMs a^rjan to tJk dijcbarge of office.
cn^ office^ wbiljl there is another amongft bis fubjeSs more qualified for
the fame than the ferfonfo appmUei^ Joes furely commit an injury with
re/pe£lto the rights ^GoD,/i6^pROPe£T,aii^/^r Mussulmans/*— It
is to beobierved that zMooftibiJ means either aperfon who is in a high
degree converlant with the Hadees or aftions and traditional iayiiigs
of the prophet, and who has alio a knowledge of the application of
the bw to cafes ; or one who has a deep knowledge of the application
of the law to caies, and alfo fome acquaintance with the Hadees. —
Some have faid that he ought alfo to have a knowledge of the cuftoms
of mankind, as many of the laws are founded upon them.
Tm£M is no impropriety in fele£ting for the office of K4sue a Aperfimmf
perfon who has a tborou^ confidence in hb ability to difcharge the iU*tf '•***
duties of it; becaufe the companions of die prophet accq»ted this ap- confideooem
pointment ; and alio, becaule the acceptance of it is a doty incumbent Utkst
OB mankind.
It is abominable to feleft a perfbn f>i- the office of S5f»ee who hn mc^
fulpeds that he is incapable of fulfilling the duties of it, and who b "SSSST^
Bot confident of being able to aft with»ilri£t r^rd Co juftice, becaufe
the i^ftioQ of fuch a peHbn b a cau& of the propagation of evil —
Several of our doftorst however, have fiud that the acceptance of the
office iAKiau without compulfioo bahnminaMe, becanie the prophet
6 has
6i6 D U T I E S O F Book XX.
has (aidt ^' Wboewr is appointed KSzn fuffers the fame torture with am
*' anima/f wbofe throat' is mangiti^ inftead of being cut by a Jharf
^^ knife** — lAzixy of the companions! moreover, declined thu ap»
pointmeot; and Haneefa perfiftcd in reftifing It, until the Sultan
caufed him to be beaten in order to enforce his accqitancc of it ; bat
he fuffered with patience rather than accept the appomtment. Many
otherSt in former times, have alfo declined this office. — Mohammed re-
mained thirty and odd days, or forty and odd days, in imprifenm^t,
and then accepted the appointment. — In faft, the acceptance of the
office of Kdzee^ with an intention to maintain juftice, is approved, al-
though it be more laudable to decline it; becaufe it is a great under-
taking, and not with (bndiiig a peribu may have accepted it from an
opinion that he ihould have been able to maintain jufHce, yet he may
have erred in this opinion, and afterwards ftand in need of the affift-
ance of others when fuch affiftauce is not to be had.— Hence it is moft
laudable to decline it; — unlefs, however, there be no other perfbn
fb capable of difcharging the duties of it, in which cafe the acceptance
of it is an incumbent duty, as it tends to preferve the rights of man-
kind, and to purge the woiid of injufUoe.
Tbe tppoint- It becomes Mujffiihnans neither to covet the appointment oiKdzee
wA^jiJUtU- in their hearts, nor to deiire it with their tongues; becauie the pro-
a^anmid. phrt has faid, " Wbofoever feeks the appointment rfKdue Jhall be left
^^ to himfe^\ but to him who accepts it on compu^tm^ an angel Jhall de*
^^ fcend and giw direSionsC^ and alfo, becauie whofoever deiires this
appointment (hews a confidence in himfelf, which will preclude him
from inftru^on; and whoever, on the other hand, puts his tnift in
God, will be fecretly in(piied with a knowledge of what is right in
the diicharge of his office.
It is lawful to accept the office of K6%ee from a tyrannical Sultan^,
in the fame manner as from a jufl Sultan ; becaufe fbme of the com-
* The tenn QTMsJcill irticn applied to
XMUUOQ0
Chaf. I. T HE KA Z E E. 617
panions accq>ted this office from MoaviaA^^ notwithftanding the right
of government darLig his time remained with jlUe; and alio, because
fbmc of the followers •{• accepted it from HijiJX^ who was a tyrant. —
Hence the acceptance of the office of Kixes ffxmi a tyrant is lawful ;
—•provided, however, the tyrant do not put it out of the power of the
KJzee to render right to the people ; for otherwiic the acceptance of
it would not be lawful, as the end of the appointment conid not then
be anfwered.
Whenever a perfon is appointed to the office ofKdzee^ it is in- a Xmza.on
cumbent on him to demand the Dnvan of the former Kizcc-^By the Sn^^aft
Dewan is meant the bags in which the recordi and other papers are ^^«j»fl«ffi<»
kept ; for thofe muft be prefcrvcd to (erve; as vouchers on future occa* cords^arc sp.
fions. — Thefe bags, therefore, muft always remain in the hands of the ^^Sccf **
perfon poflefiing the judicial authority; and as the judicial authority
re(b, for the time being, with the perfon appointed to the office, he
muft therefore require them from l\kcK£%tc who has been difmifled. —
It is to be obferved that the papers, in which fuch proceedings ice.
are written, muft ncceflarily be the property either of the public trea-
fury, of the litigants, or of the difmifTed/T/fz^r.— -StilU however, in all
thefe cafes, the new-appointed Aji^sr^ has a right to demand them from
the hte one: — in thcfrfl cafe, evidently; and in tYi^feamd^ becaufe
the litigants left the faid papers in the hands of the late JCi^f, that he
* Misvs4J^ the fen of Ma Si/wm. He had htw oriciiiftllj jppoimed, hf CMaMii^ to
the govcnunent of Sfria; and (vfytBSxigJla to be tnftniinciiad to th« death of his patron
OffciMn, (who was fometiiiie after flain in an infuneAioo) refilled to acluiowledge him on
hiiheins clewed to fuccced Othmam^ and in the end obtained the Xl«i^ fiir himlelf, being
die firft KhtS/cfilbc houfe of OmmiM^ comouMily tennrd theOMsiNitf Jtbi^.
t Arab. T^^iK.^h title given to thc4e doSon, kt. 1H10 fucceoded the jt»(, or
ntkfgmwi at At prophet.
I ajif Bin rtofifil SiK/ii.—Ht had been origimOj appointed Governor of Arabian
M> bjr iMbidfil^ the 5th JQk^of the houle of O^^
Mi ZMr^ who had afliimed the tide.
Vol. II. 4 K might
6i8 D U T I E S O F Book X3C
tniglit aft according to them; and as his power of adion afterwards
devolves upon the new ¥iibue^ he is of courie entitled to receive them ;
and alfo in the third cafc^ becaaie the late K6»c€ did not prefiarve them
as property^ bat merely as the inflrumais tfjufiiai and hence it is
the iame as if he had devoted them to the public
vat tttveiiu take pofieilion of the bags of the Dewan in the prefence of the late
£!« ^thcn ^^^^^^ ^^ '" ^^^ prefence of his Anucn. It is alfo neceflary that thqr
afk and inquire of the late KAue^, which are the papers that re^er
his proceedings ? and which are thofe that efbhlifli guardians for the
property oi orphans ? and that then the late KSxee arrange the feveral
defcriptions of ps^^ers in difl&rent bags, in order that no doubt may
arife to the new K/mec. — ^It is to be obferved, however, that this in*
veftigatiou is merely for the fake of knowledge, and not fior the pur*
pole ot ixxipeacfament.
tod »«ft is. It is rcqiafice that the new-appointed Kmuc ezammc into the
vldTconcem. fi^te of the pcifimers, becauie this is one of the duties of his office. —
^S^^ Whoever of them makes an acknowledgment of right ia favour of
^j^y legal others, the new KJhtec muft render it obligatory upon him, as acknow-
ledgment induces oUigation on the acknowledger.— Whoever of them,
wi the contrary, makes a Jemal^ the new KSzet mxift not credit the
affirmation of the late KSxee with relpe^ to him unlefs fupported by
evidence, becaufe, in confequence of his diihuffion, his affirmation
carries no more authority than that of any of the people in general;,
and the evidence of one perlbn is not proof, more efpecially whea
fach evidence relates to an afiion of his own.— If the late KSzee
ihould not be able, in this laft inflance, to produce evidence, ftiU the
new one mud not immediately reieafe fuch prifbner ; on die contrary^
• iAfCtf, tnifteet orconfidatits* Ittt diefiaiiie€faiioficeindieJCSB«rVcoafi»ia
ihemaiiiicrofanxsf^. It alio figmfies aa MfHi^*
he
Cra?. L the KAZ EE. 619
he muft ifliie prodaauttloa tad ufi: ctrcumipediM ; that is, he muft
ctufe a perfixi to prodaim, ev^erjr day^ that ^* tbe KAke dircCb that
** whoibever has aiiy datm agaioft fuch a prifbocr do appear and be
*^; coofronted with han.**--*If any perfim appear accordingly, and pre*
feraclaimagaiuft theprifimer» the Kamee muft defire him to produce
evidence :--4Hit if no per£xi appear, he muft then reka& the priibner,
provided he fee it adviieable.— He muft not, however, frteipitmte his
*enhrgement, before thefe precautions have been taken; becaufe the
imprilbnmeot of him by the former Kixu having been done appa*
rently with rcaibo, it is probable^ iif he ihould haftily rdeafe him, that
the claimant againft him might bfe his right.
It b nquifite that the new Kixit examine into the depofhs^^ avdalfii
which the diftntfled Kiue may dedare to be in the hands of parti* fooTco?^
cdar per&ns, and alfiy into die proceeds arifing fimn the lyakfs ^^[^'^
[charitable appropriations] of Afs;^yiiaii»-*--and that, he a& with thele
acconfiog to fuch evidence as may be eftabliflied concerning them,.pr
accordmg to tbe adoiowledgaieiit of the peribn in whoie hands are
the depofits or the proceeds of IVittfi becauie evidence aixl acknow-
ledgment are both proofe:— but he muft not credit the affirmation of
the late Kizie\ — ^unleis the perfbn in whofe hands fh^ property hes
avow that *^ the ftid property w^ given in charge to him by the
Kdssiii'^ in wluch cafe the new* KSzee may credit the affirmation of
the old one with regard to fuch property, as it here appears,
from the trufteas acknowledgment, that tbe property in queffion had
heen in the pofleffion of the difinifEbd IGlur, whence it nuy be idd
tobejKtf in his bands:— his affirmation, therefore, with refpedk to
fuch property, muft, in this cafe, be credited.—- This proceeds oh a>
fuppofition that the a£hial pofleflbr hzAfnm the bet^mmng acknow-
ledged the difinifled Kheiz confignment of the property to him : for
• Moaini^ controverted propertj, heUbfdieXIsiiriiatfldMMriieortheruitorliti-
gatioiii andwhkhlwdcUvcffiovcrlolbmepekbiitokcrp^iadKaMiiacrofr.^
4K a if
6ao DUTIES OF Book XX.
if he (hould firft have decbrcd ^^ this property fadkxigt to Zeyi^^ (for
inftance») and siterv/ards, *^ the difmified KAxei dtfrfiud this with
'^ me/* and the Kazet affirm it to he the property of fi>me o^Arr thaa
Zeyd^ in this cafe he [the pofleflor] mull give the property to Z^^
in favour of whom he made the firft acknowledgroentt as his n^t is
rendered preferaUe by fuch acknowledgment ; and he muft then ^e
a compenfation, alfb, to the diiinifled KSxee^ becaufe of his having af-
terwards acknowledged chat *^ the iak) property was in his cnftody ;**
«-4ind thedifmifled Ktztt muft give the compeniation ft^ received to
the perfea in favour of whom he makes the.affirmatiosi.
clw'wf Am ^"^ ^ requifite that the Kdzee fit openly in a mofque for thcexecn^
in ajii^-. tion of his office* in order th^ his pkce may not be uncertain to tra-
Uc^i vellers or to the inhabitants of the town«*~The7<fnMmof<}ue* is the
moft eligible place, if it be fituated within tlie city, bccauie it is the
moft notorious.— nS&^ maintains that it is abominable for zKdxato
fit in a mofque for the execution of his du^, fince pdy theifts are ad*
mitted into the ccurt of the KAm^ and thefe are declared in the
KoRAK to be/fti.~Morwver, women during their monthly couries
may enter the court of the Kdtue^ but are pot allowed admiifion into
a mofque.---The arguments of our dodors on this point are twolbkL
First, the prophet has faid '^ m^jpas art mlaidid for tie fraifo g/*
^^ God and the faffing of d€ar€ti*r and he moreover decided diiputes
between litigants in the plsce of his Y€ttMf\z particular penance] by
which muft be underftood a mofque: befides, the RaflieSan Kh^s
fat in moiques, for the purpole of hearing and deciding caufes.—
SscoNDLYt* the duty of a Kha is of a pioos oaturet and is thertifere
•performed in moiques in the fame manner as prayers are pfiered there.
, — In anfwer to SbapH^ it is to be obierved, that as the impurity of
* The Jimi mofi|ue ii die prtneipil mofi|oe in a town, where piUic prayer Is lesl
every Friday: in oppoficion to a MiiU^ which fignifies a finaller moiquey wbeca pidbBe
prayer ii not read.
polythdfis
Chaf.L the KAZEE. fei
ppijrtheifts relates to thwfmtb aiid not to their exftnmli^ the/ are not
therefore prohibited from entering a mwfque; and with refpeft to
menftruoQs women, they have it in their power to give notice of their
cafe to the Kdneg^ who may then go out and meet them at the gate of
the floofiiue, or depute fbme other for that purpofe, as is done where
the cafe is of a nature unfit for pul)iic difcuffion.
THKaR is no io^Hfopriety in the Kaui% fitting in his own houfe f^l^
to pais judgment J hut it irrequifite that he give orders for a fireeac- ^
ceis to the people^
kodti
It is requifite diat fiich people fit along with the KAkh as were —< ■•ifct
uled to fit with him prior to his appomtment to the office; becaufe, if bylibaSSa
he were to fit alone in his houfe, he would thereby give rife to fuf- *^****'^
INcion*
TasiCbrr muflnot accqiCofaiij pfdents, excepting from rda- HemftMc
tions allied to him widiin tlK prehibtoed degrees, or thoie from whom ^^SSJfS^
he was ufi^l to recetve them prior to his appraitment; neither of 2Slf^'^'
which can be efteemed to be on account of bis offibe, the one being in mm/Ht^dti
confequence of relationfhip, and the other of old acquatntance.~-Ex-
ceptingthefe, therefore, he muft not accept prefents from any perfon,
as thefe would be coofidered as given to him on account of his office,
and fuch it b unkwiulforhim toenjt^.<— *If, alio, bis relation within
the prolubited degrees, havinga caofi^ dependmg before him, fhoold
ofier him a prefent, it is incumbent on him to refufe it.— So likewiie,
if any perfbn accufbmed to fend him prefents prior to his appoibtment
ihould fend him moce than ufiial,«-?or if, having a iuit before him, he
ihould fend him any prefents whatever; in neither cafe is it htwful
for him to accept them, fince they would be confidered as given to
him in cpnfequeaoe of his office, and hence an abflinence from fuch
is indifpeafible.
The
6xs DUTIES OF Book XX.
aor of aar Thb Kdue muft not accept of an invitation to any entertaininent,
tSmmi. excepting a general one; becaufe a particular entertainment would
be fuppofed to have been given on account of his office, and his ac-
ceptance of it would therefore render him liable to ftffpicion : in op-
pofitbn to the cafe of a general one.— This ordinance, which has been
adopted by the two E/dtrs^ applies equally to the feafts of relations and
others. — ^It is related, as an opinion of MobanumJ^ that the Kixee may
accept of an invitation to a £nft from his rtktm^ although it be a
fartkular one, in the fame manner as he is permitted to accept of
frtftnu from him«-!->It is to be obferved that a particular entertainment
means fuch as depends entirely on the prefence of the Kdxee ; that is,
fuch as would not take place in ca& oif bis abfence; and zgettcral one
is the reverie.
HtMiis. It is fitting that the JCCmt attend at funeral prayers; and alio,
aaavUkdM that he vifit the fick; ibr theio are ainoogil the duties of a Afig^l^^
*^ inafmuch as the prophet, in eouaeratisg fix incumbent oflkes of the
Mi^Unkms towards eadi odieet nKBitiwied funeial prayers and the
vlfitingof the fick«— But it is requifite that, on thefe occafions, ho
make no unncoeilary dday, nor permit any peribn to hold a convert*
tiononthe fulyeftoffaisrintt left hcihould thereby afibid roooi for
fuipicion.
_^^. Thb <K&r#.muil not pve an entertainment to one of the parties
^^^^ in a fuit without the other; becauie the prophet has prohibited this^
«An^be- 2QJ 3jfQ^ becauie it b of a fuipicious oatiire.
Whbm the two parties meet in the aflbnUy of the £<wr, he
muil behaveto both {m regard to making them fit im$m^ and the
like) with an equal degree of attention; becaufo the prophet has find,
^^ Let aJlriS ejuaBty be Afirvti towards tie parties iarafiut with
^^ re/peS to their fittis^ dewn^ or SreOing tbein^ er UMitg towards
•* tbem^ 5
Thb
ChakL the KAZEE. iti
The Kimet muft not (peak privatdjr te either of thefartiett or
make figiis towards him, to pve him inftruOioos or &pport his argu-
ment; for, befides pving rife to fufpicion, he would thereby depre&
the other partj, who might be induced to forego his cbum, from an
<^ion that the Xlftry wis Imfled towards the other.
Thb Kdzec muft not fmile in the face of one of the parties, be-
caufe that will give him a confidence above the other; neither muft
he give too much encouragement to either, as he would thereby de-
ftroy the proper awe and refped due to his office.
It is abominable in the Kdzee to prwnpt or infiruR a witnefst by •^'"M»oy
faying to him, (forinftance) ^^ Is not your evidence to this or .to wteMfitte
•* that effca ?•• Becaufe affiftance is thereby, m effea, given to one ^gj; j;,^
of the parties ; and it is therefore abominable, in the iame manner, as tvidsMt.
it would be to inftruft either of the parties diemfdves.— ^^(0^ Twfrf
has faid that inftruftion to a witoefs, on an occafion free from fu^i-
cion, is laudable ; — ^becaufe a witnels may femetimes be at a ftand from
the awe with which he b ftruck m the af&tobly of the KA%€t\ and
in fuch cafe to encourage him, in order to give life to the rij^t of Jus
party, b the fame as the deputing of a perfbn to compdi the appear-
ance of the defendant in court, which b lawful, notwithftanding it
be an afliftance to the plaintiff. — ^As, alio, it b lawful to exaft bail
from the defendant, .although an affiftance be tlierebjrpvea to the
plaintiff; in the fame manner it b lawful to ^vc encouragement to a
witnefs, to prefervc hb right, althoagh -affiftance be thereby ofiered
to one of the parties.
The JUmic muft not give judgment when he b hungry or thirfty , Ht ■wgooi
becaufe fuch fituations diminilh the intdleft and ^dtfftandmg of the SaSlC
perfon afleaed by them. Neither muft he give judgment when he JSJK
b in a paffion, or when he has filled hb ftoiuch with food, becaufe Mcp^if
the *"«*'^
<»4 D U T I E S O P Book XX.
the pn^ihet has laid ** Lttmttbe mt^^nte Ateidt Utwem t^futattts
when be «r tmgy vrfutt.**
4(
A T09K0 KSmee ought to fiAi^ his palSon with his wife before
he fits in the couit, that he ifnjr not be attraded bjr the view of wo-
men that maj be pre(eot there.
SECTION.
(y iMPHItOirMBNT.
When a claimant eftabliihes bis right before the Kiue, and de-
mands of him the impriionment of his debtor, the Kdzee muft not
precipitately comply, but muft firft order the debtor to render the
right; after whidi, if heihould attempt to delay, the Kdtee may im-*
priibn him. — Tliis is related in Kadewet; and it proceeds on the
principle, that mfrifiiiment is the punifliment of <^i!af;— whence it is
neceffiuy firft to order him to reftore the right to its'owner, that his
dehy may be made apparent. — This is where the right is eftaUiihed
by the dd)tor*s acknowledgment; fac in that caie the non>payment
on the firft demand is not conftnied into ir/o^; becaule it is pebble
that the debtor expe& a refpite, and therefore has not brou^t the
money along with him. But if He fliould dday after the decree of
Che JCIsM, he muft then be imprifimed, as his delay is then evident.—
Where, on the other hand^ the right is eftabliihed by. evidence, the
defendant muft be imprifixied immediately on the eftablifliment of it;
becauie his denial, which occa6ooed the neoeffity of proof by evidence,
fumidies a fttiBdent afpncotof hit intcotioii to dday.
CuAi'. I. THE KjfZEE, W
If a defendant, after the decree of the Kazee agalttft him, ddaf h i
of^cbCa iIm
the payment in a cafe where the debt due was oonttafted for feme McmitM
equivdent, (as in the cafe of goods purchafed for a price, or.of monejr^ ""ft^'UH
or of goods ism-rowod ott pramtfeof arctum ,) ihtK4zeemn(k iminedi- ■idjMjy»>
atefy impnfaa hkat bceaiiile tht property be received is a psoof of liis ^SSS^^iuL
being po^0cd of wealthf^Iu tlut&me Q^nner, thcK^asei miiftim* A^^jgh*^
prifba a refrafiofy defendant who has uiidertaken an oUigatioo in Si^I^ JLr
virtue of fome coutraft^ fucb as marriage or bail, be^aufe bis i^dlun* ^|T^[^^||^
tary engagement in an obligation is an arKuocnt of his pofleiuon of tnaofaMr*
wcakh, fince no one is iufpofed to undertake what he is not compe* '^^
tent to ftiUiL—If, sifo^ in this cafe, be plead pW9tty^ this plea is
oevertfaetefs rejefied, and the plaintifPs aflertion (of his being po(^
fefled of wealth) credi^d•~It is to be obfervcd, that the obligation
cootraAed from marrUigi^ as here mentioned, relates only t6 ti:icMskr
Moodjal^ oxfrmnpt dower, and not to the Mibr Mowjii^ or deferred
ibwer, beconte m e^gq^emeot to py a future debt does not argue
the polielfion of wealth.— in calest aifo, of debt of any other defcrip-
tion, (fucb as a compcniation ior ujurfed property, amercement for a
cjimct the confideration oiJOidlfatf compcnfation for tbe freedom of a
partnerihip flavc, the maintenance of ^ wife^ and fo forth,) the
Kdsee mull not imprifoa the defendant when he pleads pover^;
becaufe none of tbeie ads indicate tbe poflcflion of wealth, and there-
fore bis declaration of poverty niuil be. credited.— If, however, the $mit
plaintiff prove that be is ppflcfTeJ of wealth, the JCizee muft iu that
cafe impriibn tbe debtor, niider any of the above circumTcaoces.-— ^
Tbe di(KucUons hero ilated are irom the Zdiir Rawiyet^^-Ai is iaid, ^HS^St
by other authorities, that the ailertion of the plainti^ muft be ere* ^^"V^
jited in every cale of debt; that is, wbetber the debt be oontqiaed
in exchange for an equivalent, or voluntarily engaged for by the
par|y ; becanie povecty is tbe original ffauc of man^ and wealth merely
ibpervenietit,. and tbiis the natural condition of man is an .argu*
AMU of the troth of the defendiutt^a jeclantiw of poverty >->Tbefe
is alio another tiaditioa» that the defendantfa declantioa of poverty
Vol. IL 4 L is
M DUTIESOF Boos XK.
h Cft^table id every ofe of debt^ eioqptiog fuch at itcoiitnii&ed
ia extfaange for aa equivaknt.
ttM^hv Iv a wifedemand her fubfiftence from her huftand, and he pfeal
po?arQr, his ifeclarationy corroborated by an oath^ ia to be created.*-
In die fime manner, if a peribn emancipate bis fliare in a partner fhip
flave,. and hb partner demand a compeniation for his fliare, and he
plead poverty, his declaration is to be credited.
OBjxcTioK.—Thefe two aki are coofbraiable to the two laft
quoted tni&ions: but they are repognant to the doftrine of the Zl&»r
JUw^l for allliou^, in ^irtue^the marriage in theonc caict
and the emancipation of the joint ihve in the other^ there eaifts in
both a voluntary engagement of refponfibifity, . which indicates the
pofleffion of woJth, ftill his dedantion of poverty is neverthelefi de-
clared to be creditable.
RspLT. — SubJSftence to a wife is not an tfi^/SA/r debt, (that is, fuch
as can be rendered vdd only by ps^rment or exemption,) for it be-
comes void, according to all our dolors, without payment oc exemp-
tion, in cafe of iro/J.— Ia the lame manner alio, compeniadon for
freedom is not an abfblute debt, according to Hanetfa^ being in his
opinion the (ame as the conflderation of JC^iftor;— and Uie doftrine of
die TUUnr Rmvfyet alludes only to abfoluti debts.
—In a cafe where the defendant pleads poverty, and the pfaondflfproves,.
by e^ence, his pofleflion of wealtbt die KSzee muft impriibn him [the
defendant] for two <x three months ; after which it is requifite that he
make an inveftigatbn into his drcumfiances ; and if, upon (u'ch invefti-
gation, the people (ay he is wcailthy,. let him be continued in confine-
ment:—but if they fay he is poor, let him.be rdeafed; becaule he
ftandsin need of an allowance of time to enablehim to acquire wealths
and the continuance of bis imprifonment b, in fiich cafe, an oppref^
iion.<^In KaJoorti^ abridgement, it is rdated that he is to be relealed
from confinement, but that the plaintiff is not to be prohibited from
ufing importunity with him.~The cafe of hnportunity willbe moie
fidly
Chap. L THE KjI Z EE. €%j
fully diicuflcd hereafter in treating of H^.— The period of tmpriibii«
ment is fixed at two §r thru muub$^ for this reaibn, that as the im-
prifbnment is infit&ed on account of contumacy, in the debtor*s with*
holding payment of the debt, notwithftanding the Kixet^% order, the
KSzi€ muft therefore imprifon him until fuch time as he reveal his
property, in cafo he have any concealed ; and as it is requifite that the
term be of (bme duration, to the end that this advanuge may be ob-
tained from it, MUmnmi has therefore fixed it at the period above-
mentioned. — Other authorities fix it at one month, at five monthst
and at fix months^— In fii£t, this is a point which muft be left to the
diicretion of the Khs€€\ becaofe t,he conditions of men are various ia
regard to their endurance of the bard(hips of imprifonment, ibme
bdng capable of bearing it longer than others ; and hence the neceffity
of leaving it to the JUoi^ to aft as he nuy deem beft.— If the debtor
prove his poverty by witnefles, prior to the expiration of the prefinbed
period*, in that cafe there are two traditions. According to one,
the witnefles are to be credited: but according to the other their evi«
dence is not to be admitted. — Many of our modem dodtors fellow the
latter opinion. — ^It is related, in the ^ama Sagbur^ that if a perfen make CMt cT ae^
an acknowledgment of debt before the JG&w, he [the JQbui] mlift in
fuch cafe imprifim him, and muft then make enquiry of the people
into his circumftanoes. Ifit appear that he is ridi, he mnft inthat
ca(e continue his impriibnment : hot if hit poverty be made appasentt
he muft rdeafe him.— The compiler of the Htdifm lemarks tlut this
alludes to a perfon who, hainng at onetime made an aduttwle^ment
of debt to the Kixee^ or to fome other, afterwards difiuwefs an mten*
tion of delay; for otherwiie it would difier fimn the doftrine of JGf»
do^ree^ before quoted, in which it is expnfily declared thatdie jQknr
ou^t not immediately to imprifon a dd)tor after acknowledgment!—
• This ir an apparsat contta^abn la ubit liiiwiiinrtrlj gwcafcs
AcRtioiivypoivcrcrdK JSisirvrith itfpea to dit period of Iavri(b««i^-4ca%
cw^ Bwrdy a condnwiion cf thedofbuieaf JfWbiiwid; wha tas prcferibaSaiwa,
4 L 2 (The
6i9 DUTIES OP Book XX.
(Hie compiler ffve» tins qtplanatina wkh « view to recoocife the
doarioe of the JmaSagbeer with that oiKdukont.)
A Mbtmi ^ A RirsBAKD may be imprifimed for the muntenance <^his wife,
SwdAMiw t>6cauie in wtthhoWng it heb guilty of oppreflron : hot a ftther can-
yjySiy '^^ ^ impnioned for a debt due to his fon, becauie impriibnment »
im a^aihcr a fpecies of (everity, whidi a fim has no right to be the caule of in-
^ Aiding on his ftther; in die &me manner as in cafes of retaliadon or
be
^fiut tlkk puni(hment.— If, however, a fether withhold maintenance from an in-
fiuit ion, who ha^ no property of his own, he muft be imprifoned;
becaufe this tends to preserve the life of the child; and alfe becatiie
there is no other remedy, iince ma*tenance (in oppofition to Mt) is
annulled by the lapfe of time, and therefore it is neceflaiy to prevent
its deftru^on for the future.
CHAP. XL
Of Letten from one Kdzee to anotfaen
LttunwK
A LBTTU from one Khu to another is adraiffible rdattve to all
hr«vidcae> ""^^ ^'^^P^ punifluncnt and letiKtioB. prmAUi k he anA.^f L^»^
madMiSbU by evidence exhibited befese Use Khit to whom it is addsefled, toe
"J^f which there is an abfelute neceffi^, as will be (hewn hereafter.
PiCayt If witnefles exhibit evidence, before a KSxee, againft a defendant,
^"^S^r the fut^ea of che fuit being at adiftance, the Kdsee may pafi a decree
Xfi»<'*lcticr. upon fuch teftimony, becaufe it eftablilhes proof. The decree ib
made is written down, omI this writing is termed a SS^ilocncord, and
CiiAF. II- THE KAZ EE. 6a^
is not conisdercd as the letter of one Kbsee to another^.— 4f, howevtrt-
the evidence be ^ven in the abfence of the defendant, the Kiue muft
not pafs a decree, it being unlawful to do f^ in the abfence of the per-
ion whom it aflfc^b; but he muft take down the evidence in writing,
in order that the KSzee to whom fuch writing ihall be addrefled may
life it at evidenced—This writing is termed KUSb^Htobme^ or the let-
ter f^ODcKdza to anodier, and is a truiicript of real evidence.— Jt is „,*|j|]^,
to be obferv«d that the tranfiniffion of letters of one JUzee to another Miy m c^-
b reftri&ed to ievend conditions, which will hereafter be explained; !
and the Icgdky of it is fboaded on its neceflitj, itoce it maj ofken bo
impoffible for the plamtiflF to bring the defendant and the eridenco>
together in the fame place, becaufeof the difbnce of their abodes.*-*-^
Uencethe letter of one Xdza to another is, as it were, the evideaoo
of evidence, or a branch from the trunk.— *It is alfo to be oUerved
that the term rights^ above ufed, comprehends debts, and alfb marri*
age dowers, portions of heirs, ufurpations, contefled depofits, or JIjk
vi&rihat fbck denied by the manager ; becaufe all thefe are eqmvaknt
to debt, and are capable of afcertainment by defcription, without the
neceffi^ of a&ual exhibition.— Letters from one Kdza to another am #
alio admiffible in the cafe of immoveable property, becaufe it is capable
of afcertainment by a defcription of its boundaries : — ^but they are not
admiflible with regud to iwvria^ilf property, becaufe, inthatcaie, there
is a necefBty for aftual exhiUtion.— It is related as an o^nion of Mob
Tarfrf^ that letters from one KSzee to another areadmiffilde with refpe£t
toamoiSp flave, but not with refpefi to zJemaU^ becaufe the probability
of elopement is fbonger in the one than the other.— ft is alfb rebted
aaan opinbn of his, that they aio admiffible with rc^)e& to both male
and female fhv«s, but that particular conditions are requtfite to efb-
• Tkit cafe fiippotb dK thii« ia dUpiiU to be fitiiatcd in die juriOiffiott of a dif*
fatot JUbt fiem bin before whom dM parties Mngcbctr bit; and the decree which in
iUs cafe the XIm gnrcs bciM wiittca domi it csi^
SDfeetteafeicoL
bGlh
630 DUTIES OF BookXIC
bli(h thdr admiflibilitjr, which will be explained in their proper place*
^^It is rehted as an OfMnioa ofMaAmnmdf that the letters of a KJzf^
are admiifible with ttfytSt to ererjr fpecies of moveable property; and
this opinion has been adopted by our tnodern do«ors«
'^*^^^ Thb letters cfKJzets ere not adaitflibie» nnleis anthenticatcd by
mbcaticM the tcftimony of two men, or of one man and two woAien; becaofe
^ there is a fimihrity between all letten, and it b therefore neceffiiry to
eflaUiih their authenticity by complete proof,*^bat is by evidence*
—The grounds of this is, that thefe letters are binding in their nature,
and therefore require to be completdy pnwed.^-»It is otherwife with
refpeft to the letters of jHZri«^x [Infidel aliens] to the/Ub, foliating
proteftion; for thefe require not to be proved by evidence, fince tb^
not bindmg in their nature, ioafinuch as it rd(b with the isate to
gnmt the proteflmn or not at his pleafore. — ^It is alfi> otherwife with
refped to the meflage of a KdtM to a AAoziee [purser of wit-
nefles,] or with refped to the mefliige of a piugator to the KJzee^
for fucha mefl&ge has no force, confideredas the meflageof a purgator^
but merely as being a corroboratioa of the teftimony of witnefles.
Tht cMMu It is ipcuthbent on the JOIzee to read his letter in the prefence of
Smilrfr^ ^^ witnefles who are to authenticate it, or to exphun the contents of
jWjjJ»*« It to them, that they may have a knowledge thereof; becaufe evidence
iagwiiaifa. cannot be given without knowledge. Afterwards he muft dofe the
letter, and affix his feal to it in thdr prefence, and then*coniign it
over to thcm,^ that they may have a fecurity againfl any poffiUlity of
alteration in it.— This is according to Hmuifm and ^hbammJi and
the reafen is, that a knowledge of the (bbje& of the letter, and an evl-
dence of the affixture of the feal, are inc^fpenfible reqoifites; and in
the feme manner a remembrance of the contents is aUb requifitei
whence it is that the Kizee muft fumifh them with an open copy of
the letter, with which they may refrefh their memory*— It is how-
ever related, as the laft opinion of Aho Toofrf^ that no one of thde
8 particulars
Chap. II. THE KJZEE. 631
particulars is rcquifite, it being fufficient to attefl that this is the letter
and this the feal of the Kdzee; and it is alfo reported,, from him, that
the affixture of the feal is not neceflary. — Hence it appears that, after
his attaining the dignity ofKazce^ he confidered this matter as of little
confequence; and his opinion is of great weight, (ince thofethat only
bear are not (b competent to determine as thofe that fee.^-^bimfal^
jfyma has adopted the opinion of jlioo Toq/af.
When a letter from a Kdzee arrives, the Kdzee to whom it is ad- Icnraftaotbe
dreflcd ought not to receive it unlefs in thcpr^/cncc of the defendant ; [rSIfaiwof
becaufe as fuch letter is equivalent to an exhibition of evidence, the ^ ddciuL
prefence of the defendant is therefore indifpenfible.— It is otherwife
with refped to the other Kdzee^s hearing the evidence, becaufe that
is done merely with a view to tranfmit it, and not to j^afs fentencc
upon it.
When the witnefTes bring the letter to the Kdzee to whom it is Formi to be
addreffcd, let him firft look at the feal of it, and after hearing their SiV*J22^^
tcftimony, (that ** this is the letter of a particular -Kfe^^,**— that "he ^ *«•
** delivered it to them in his court of judgment," — that " he read
" it in their prefence,'* — and, that " he affixed his feal to it before
** them,'*) let him then open and read it in the prefence of the de-
fendant, and pafs a decree agreeably to the contents. — ^This is accord-
ing loHaneefa tlvA Mohammed. — j^boo Too/of hzs faid it is fufficient for
the witneflcs to attcd that " this is the letter and feal of fuch a
" KdzeeJ"* — ^In the Kadnorec^ the proof of the integrity of the wit*
ne(!es prior to the opening of the letter is not made a condition. — ^The
better opinion, however, is that it is a neceflary condition ; and the
fame has been declared by Kbaftf\ for this rc^on, that there may
eventually be a neceffity to recur toother evidence, in cafe of a want
of proof of the integrity of thofe that brought it ; and it would be im-
poffible for any others to gl«pe their teftimony unlefs the feal itill
remained upon it : it is therefore auioiutely neceflary that the Kdue
defer
^3^ D U T I E S O F Book XX.
defer breaking the fcal of the letter until the integrity of the bearers
be proved.
It if rendered
void by Che
death or dif-
miflton of the
writer in the
inictim;
or (unlefs gt"
utralJy ad-
drefled) by
the death or
difmii&oii of
him to whom
it is tranf-
iniiied«
One Kdzee muft not accept a letter from another, unlcfs the KAzee
that wrote it be, at the time, ftill fixed and cftablifhcd in his office.
If, therefore, prior to the receipt of the letter, the Kdzee that wrote it
(hould have died, or have been difmified from his office, or have be-
come difqualified from the duties of it, from apoftacy or infanity, or
from having fuffered puiiiflimcnt for flander, — the Kdzee to whom
the letter is addreflcd muft then rcjcd it ; becaufc the author of it bcino-
at that period reduced to the level of the people, any information
from him, independent of what relates to himfelf, or mutually to them
both, is not admiffible. — So like wife, if the Kdzee to whom the letter
is addreflcd (hould have died, another Kdzee muft not open it, unlefs
the addrefs run in this manner, " To the fon of Kdzee of the
** city of or to whatever Kdzee it may concern, this letter, '' —
in which cafe another Kdzee may receive it, becaufc he is compre-
hended in the addrels from the fpccihcation of his office and city. — If
the addrefs, however, be merely, " To whatever Kdzee it may con-
** cern,'* he is not entitled to open it, from the uncertainty of the
addrefs.
Ip the defendant die previous to the arrival of the letter with the
Kdzee^ judgment muft be pafled upon it in prefence of his heir, as
being his reprefentative.
It is not ad*
fi^tflible in
cafes of pu-
nifbment or
retaliaiioa.
A LETTER from one Kdzee to another is not valid in cafes of reta-
liation or puniftiment ; becaufe as in fuch a letter there exifts a fern-
blance of fubftitution, (for the letter is not itfelf evidence, but merely
z/uifiituU for evidence,) it is therefore equivalent to evidence upon
evidence ; and as evidence upon evidence is not admitted in thefe cafes^
the letter of a Kdzee caiuiot be admitted.
SECTION
Cmaf. II. THZKAZEE. 633
SECTION.
A woMAK may execute the duticsof aJCifa^r In every cafe except a \
puntfhment or retaliation, in conforniity with the rule that the evi- ^^^^
dcncc of a woman is admiflible in every cafe except in cafes of punifli- iK«w» ia all
ment or retaliation; for the rules of jurifdiftion arc derived from the pert/. '"*"
rules of evidence, as was before Aated.
It is not permitted to a KSzee to appoint a deputy, unlefs he have a Ktom it '
received a fpecial power from the Imdm to that effe£l; for although ",^,"*i^'^^
he have been himfelf appointed to the office of Kazee^ yet he has not '•w* ^^'
been empowered to confer fuch appointment on another. — ^Hence» in* ntrofcbc
the lame manner as it is unlawful for an agent to appoint an agent ^^"^
unlefs with the permiflion of his condituent, (o is it unlawful for a
Kdzce to appoint a deputy unlefs by the authority of the Imdm. — ^It is
othcrwife with refpeft to a pcrfon appointed to read the Friday's
prayers ; for he may appoint a deputy to adl for him, fince if any
delay (hould happen in the performance of this fervice, the prayers
would become void and null, as the period for them is fixed : the ap-
pointment of a peribn to read thcfe prayers, therefore, is virtually an
argument of his being empowered to appoint a deputy to ^fX for him,
with a view to prevent the nullity of the fervice: — contrary to jurif-
di^ion^ which not depending on a fixed period, is not therefore de-
feated by delay.
If a Kdzct^ not having power to appoint a deputy, fhould never- but the 4e.
thelefs appoint one, and the laid deputy, either in prtlcnce of the Kazee^ ^aTI^^ *flfed
or in his abfence but with his approbation, pafs a decree,* the decree »» *»" ?'•:
fo paflcd is valid ; — in the fame manner as where the agent of an agent hU «pprobt.
performs any aft in the prcfcnce of the agent, or with his content, ^^•"^*W.
in which cafe fuch aft is valid. — The ground of this is that the dc-
Vol. II. 4 M crcc
634 D U T I E S O F Book XX.
cree being pafled in the prefence of the Kizee^ or with his approba«
tion, and the a£l being performed in the prefence of the agents or with
his approbation, the judgment and refle&ion of the K&zce himfelf is
therefore cxercifed in the cafe of the decree pafled by his deputy,—
and the judgment and refleftion of the agent in the cafe of the deed
done ly his agent, — ^which is wliat was required.
If hetppoifit If the ImSin give authority to the K&zee to appoint whomibever-
a^ority'.^^e ^^ pleafcd his agent, the pcrfon whom he appoints becomes in that
S^JiSfs cafe the deputy of the Sulton ; and the KAsuc is not entitled to <lilhuis .
l&im* him..
Hcmuftmtin. It is incumbcnt upon every Kazce to maintain and enforce the
fSxc"thc*'*' decree of another K&axe^ unlcfs fuch decree be repugnant to the doc-
^w^'SS" ^^"^^ of the Koran^ or of the Sonna^ or of the opinions of our doaors j
Kwi. in other words, unlcfs it be a decifion unfupported by authority.—
It is related, in the ^ama Saghter^ that if a K&zee pafs a decree in a
matter concerning which different opinions have been given, and be
afterwards fuccceded by another K&zec of a different opinion with re-
fpcd to that matter, the latter K&zec muft nevcrthelefs enforce the
decree fo made; for it is a rule that when .a K&xc pafles a decree ia
a doubtful cafe,, the decree is executed accordingly ; nor is it permitted
to a fucceeding K&zee to refcind it, becauie although the fucceeding
Kdzee be equal in point of judgment to his predeccffor, ftill the judg*
mcnt of the predeceffbr is in this inftance allowed a fuperiority, be-
caufe of its having been exercifed in paffing the decree; and there-
fore it cannot be afieded by the judgment of his fucceffbr, which is
deemed inferior from its not having been exercifed.
His detcrmi- If a K&zec^ m a doubtful cafe, determine contrary to his tenets,
d^mhtfmi dfe from having forgotten the principles of his feft, fuch decree muft ne*
tho^h'it* be verthelcfs be enforced, according to Hanecfa. — if, on the contrary, he
repugnant lo pafs fuch dccrce knowingly, and. not through forgetfulnefs, there are
ia
Chap. II. THE K jf ZEE. 635
in that cafe two opinions recorded.— According to one, the decree *• *«^ ^
muft DC enforced in that iiiflance alfo, becaufe the error iii it is uncer-
tain—In the opinion of the two difciples the decree muft not be
enforced in either ca(e; that is, whether the error Ix: wilful, or pro*
ceed fram forgetfuhiefs : and tliis is the approved expofition.— By a
doubtful cafe is meant one in regard to which there is no particular
ordinance, either bjr the word of God, or by the prophet, and con-
cerning which, confequeiitly, different opinions have been fupported
by the companions and their followers. — Where a great number^ how-
ever, have concurred, and only a^he; have differed, it is not confidered
^ z doubtful cz!k.
Every thing of which the Illegality is decreed by the K&xeeitom Aaarddede.
apparent circumflances, that is to fay, from the teftimony of wit- fvUvpone^.
neflcs, although in reality fuch teftimony be falfe, is neverthelefs /}^ a^jTo,^?-**'
fa8o unlawful. — ^ This is according to Haneefa : and he is alio of the ^«{8^ ^
fame opinion where the Kdsee decrees the legality of a thing; pro- praf^fiOft,
vided, however, that the claim of the plaintiff be founded on fbme
determinate plea, fuch as purcbafe^ leafe^ or marriage^ — as if, for in-
ftance, he (hould claim a female flave by aflerting that he had/i^-
thafed her.
The K&ue mud not pafs a decree againft an abfcntce unlefs in (he Adecreectn*
prefcnce of his teprefentotive,— ^W^j/?/ maintains that it is lawful for J!^J^b?
a K&zie to pafs a decree againft an abfentee ; becaufe, upon the efb- ^entee but io
blifhmcnt of proof by tcflimony, the right in the judgment of the {}jrepre^a*
K6zec becomes evident.— The arguments of our dodors upon this •**^^*
point are twofold. — ^Fxrst, the paffing of a decree on the teftimony of
witnelfes is with a view to put an end to contention ; and as conten-
* For infiance, if two people dechre dut there is a drop of wine in a particular veflel
of water, and the Kaut in confequence decree it Co be unbwful, it muft be confidered as
luch, aUaottg^ the fidfitjr of their dedaratioA be afterwards proved*
4 M 2 tion
636 DUTIES OF Book XX.
tion /uppofcs a refulal on the part of the defendant, it follows
that as his abfence precludes the poflibility of his refufal, no conten-
tion can have exifted. Secokoly, the abfence of the defendant
admits of two fuppofitions, namely, that (if prefent) he would cither
have acinowleJged iht claim, or ^nied it: if tht former^ the Kizee
Diuft have pafled a decree upon that ground; or, if the latier^ upon
teflimony. Now decrees pailed on thofe different grounds are of 2
diftind nature, lince that which is founded on teftimony is binding on
all men, whereas the other is not. — ^Where, therefore, the defendant
is abfent, it becomes a matter of doubt with the KSzee what kind of
decree he ought to pafs ; and hence it is requifite that he fuipend it
until the arrival of the defendant^ when the nature of the decree he-
ought to pafs will be afcertained.
Mrigatnfl jp a defendant, having firft denied the claim, ihould afterwards
oopoTctthc* difappear, in that cafe alio the iu/s^^ muft: fufpend bis proceedings
5^aSp. during his abfence, becaufc it is requifite that the denial exift at ibe
V^m. time of faffing i/jc decree^ which is not the cafe in the preient in-
ftance. — ^Thc opinion o( yiioo Tco/af^ on this cafe,. is different. — It is
to be obferved that the reprefentathe of an ahfeutee is either one ap-«
pointed by himfelf to a£t for him, (fuch as an agent j^ot one appointed
by LAW, (fuch as an executor nominated by the Kdzcc^ ) or, laftly,
one who (lands as virtual reprefcntative, by the claim which the
plaintitF prefers againft the abfentec being alfo a caufe of claim againfl
fome perfon prefent. This bft may occur in various modes ; and the
following may fcrve for an example.— A perfon eflablillics, hy tefti-
mony, his right toa houfe in the pofleilion of a particubr perfon, in
virtue of his having purchafed it from an abfentee, who was at that
time the proprietor of it, and from whom the. prefent poiTef&r has
ufurpcd it ; — in which cafe, if the poiTeflbr deny all this, and the
plaintiff eftablilh if by evidence, the Kdzee may pafs a decree re-
lating both to the abfeni ee and the perfon prefent ; nor would the
denial of the fale by ilic abfentee, if he fhould afterwards return* be
credited.
Chap. IL THE KJZEE. 637
credited, becaufe the purchafe of the houfe from its proprietor is the
cau(e of that which the plaintiff claims from the perfbn prefent,
namely, the right of property in the houfe. In fuch cafe, therefore,
the perfon prefent fland^as the agent for the abfentee, and his denial is
confequeiuly equivalent to that of the abfentee, — ^The ground of this is
that the plaintiff is not capable of proving his claim againfl the perfon
prefent, unlefs he firft eftablifh it againft the abfentee. The perfon
prefent is therefore confidered as the reprefentative of the abfentee;
and hence the decree of the K&ue againft the perfon prefent fbnds as
a decree againfl the abfentee. — ^Where, however, the claim of the
plaintiff upon the abfentee is the condition of fomething which he
claims againft the person prefent, the latter is not in that cafe confi*
dered as the reprefentative of the abfentee. A full difcuflion of this is
to be found in the ydnuii
It is lawful for a IQlzc€ to lend the property of orphans, keeping The KSzu
a record of it in writing; becaufe fuch loan is advantageous for the ^ope^of
orphans, lince it tends to preferve and fecure their property ; and the ^P******
Kdzee has the power of enforcing the reftitution of it. — An exe^
cuior^ on the contrary, is refponfiblo for the property he lends, as is
alfo a father^ becaufe neither of them has the power of enforcing a
reftitution of it»
CHAP.
638 ID TJ T I E S O F Book XX.
CHAP. III.
Of Arbitration*.
An aibitrator If two pcdons appoint an arbitrator^, and exprefs their (atisfadUon
the^iuJhiiM ^*^^ *^^ award pronounced by hinit fuch award is valid; becaufe, as
dTenttai to a tbefe perfons have a power with refpeft to themfelves, they confe*
^"^' quently poflefs a right to appoint an arbitrator between them, and his
award is therefore binding upon them. — ^This is where the perfbn {o
appointed poiTeiles the qualifications of a Kd%ee ; for as be ftands in that
relation to the other two, it is therefore requifite that he be compe-
tent to difcharge the fundion of a Kdzce.
He mull act It is not lawful to appoint a flave, or an infidd, or a perfbn that
^li^'M' has been puniflied for flander, or an infant, to aft as an arbitrator;
^fr, or aa becaufc uonc of thefe is competent to be a witnefs.
botbcmax If an unjuft man be appointed an arbitrator, it is valid, becaufe
ftdM^ of the validity of his appointment to the office ofKdzce^ as has been
already explained.
Either pin/ If two men appoint another an arbitrator, Aill it is lawful for
ilroB OMtr. either of them to recede before he gives his award, becaufe as the ar-
fol«*'Se *^" Ktrator has received his powers from them, he cannot exert thofe
Mvd. powers without their confcnt. The award, however, when given,
is binding upon them, as the power of the arbitrator over them was
edabliihed by their own agreement.
* Arab. Tabiirm. f Arab. Hahm.
Chap. Ill- T HE KJZ EE. 639
If the parties refer the award of the arbitrator to the Kdzeci and On a refers
It be conformable to his opinion, he muft caufe it to be carried into x^^ he
execution, becaufe it would be ufclefs to annul it, and then pafs a ^ 8«^ rf-
iimilar decree. — ^But if it be contrary to his opinion, he muft annul it, award, if ap-
as the award of aa arbitrator is not binding on the Kazct^ iince he did ^^
not authorize it.
The aopointment of an arbitrator is not valid in cafes where pu- *«^«»»n«f
* * * to an arbitra-
ni(hment or retaliation is incurred, becaufe the party has no power tor is invalid
over his own blood, and is therefore not capable of afligning it to JUm^iflimenc
others. Lawyers have ofaferved that the particular exception of rcta- of w«»^*«>on.
liation and punilhment afibrds an argument of the legality of arbitration
in all other contefted queftions, fuch as divorce, marriage, and the
like. This is approved.. Still, however, there is a neceflity for a
ratification of the award in thefe. cafes by. a decree of the KJzee^ in
order that a controul being maintained over mankind, their preflimp*
tion may be reftrained^ for otherwife men would continually fettle
&eir differences by a private reference^ without regard to the
JtAW.
If, in a cafe of homtctde from error, the flayer and the heir of |^,^^^"
the deceafed appoint an arbitrator, and he award a fine of blood to be of a fine
paid by the tribe of the flayer, fuch award is of no effeft ; in other /*r^o^ w.
words, the heir is not entitled to exaft fuch fine from the tribe in no"Sia -^^
virtue of the award, for it has no force over them, as they did not
authorize the arbitrator.— If, alfo, the arbitrator award the fine to be "^^^^
paid by ihtjltycr^ thtKdxie muft annul it, as being contrary to the fc«»feifi «»•
LAW, which prefcribes the fine to be paid by the tribe; — excepting, knowMge
however, where the fa/ft is proved by the confeflion of the flayer ; for ^ ^^^^
in that cafe the tribe are not liable to the fine.
An arbitrator is empowered to hear the witnefles of the plaintiff. He nny ex.
8 and nci^t.
640 D U T I E S O F BookXX.
and alfo to pafs an award upon the denial or acknowledgment of the
parties, becaufe this is agreeable to the law.
The parties*
acknowFed^-
ing an arbi-
trator's de-
crec» cannot
afuTwards
rctradlroa
it.
If an arbitrator ^ve information to the Kdzee of the acknowledge-
ment of one of the parties, or of the integrity of the witnefles, at a
time when both the parties continue to adhere to his award, fuch in-
formation mud be credited, and the Kizee mud not afterwards credit
the denial of either of the parties, as the arbitrator's authority ftill
continues unfhaken. — If, on the other hand, he give information to
the Kdzee relative to his awards — (that is, if the parties difpute con«
cerning his award,— one of them faying that. *• it was tofucb or fucb
effe£t,** and the other denying this, and the arbitrator inform
the Kdzee that ** he has awarded ^ am/ ^,*')r— his informatbn
muft not be credited, iidce in fuch cafe his authority no longer
endures.
Any award
pafled in fa-
vour of a Da-
rent, child,
or wife, if
null.
The determination of every perfon a^fling in the capacity of a
judge (whether he be a Kdzee or an arbitrator) in favour of his fa*
ther, his mother, his child, or his wife, is. null and void, becaufe
evidence in favour of any of thefe relations being unlawful on account
of the fuipicion which it fuggefls, a determination in their favour is
alio unlawful, for the fame reafbn. — A determination, however,
againft any of thefe relations is valid, becaufe evidence agaiufl them is
accepted, fmce it is liable to no fuipicion.
Joint arbitra- jp (^yo perfons be appointed arbitrators, it is mcumbent upon them
tors mail aa ^ . ^. , . . . i -. • • i.- •
cocjunaite. to a£l conjuDaivcly m giving a determination, as this is a matter
^* which requires wifdom and judgment.
6ECT20K.
Chap, III. THE KjS ZEE. 641
SECTION.
Miscellaneous Cases relative to Judicial Decisions,
In a houfcy of which the upper ftory belongs to one man» and the Noaacinbe
under ftory to another, the proprietor of the under ftory is not en- S^J^Tida
titled to drive in a nail, or to make a window, without the permiflion to the under
of the proprietor of the upper ftory. — ^This is the do£lrine of Haneefa. J^2fc? which
The two difciplcs hold that the proprietor of the under ftory may do "^j^*"/ ^^^
any ad whatever with refpe£t to it, provided no injury rcfult to the boUdiog.
upper ftory. The fame difagreement alfo fubiifts with regard to this
proprietor of the upper ftory building upon that foundation. Some of
our lawyers remark that the doArine afcribed to the two difciples is
only an explanation of that of Haneefa^ and that, in reality, there
exifts no difagreement between them. — ^Others again fay that, ac-
cording to the two difciples, there is a perfect freedom ; — ^in other
words, either of the proprietors is at full liberty to do whatever aft he
pleafes with relation to his property; for ^r^r/y, in its very nature,
implies a perfeft freedom with regard to it, reftridions ugon it being
merely fupcrvenient, and fixed in order to prevent any detriment to
another. Hence if the detriment be only doubtful^ and iiot inevitMe^
the proprietor cannot lawfully be reftrained from ading upon his own
property. According to Haneefa^ on the other hand, there is a re«
ftridion; — in other words, neither of the proprietors is permitted to do
any a£ls with regard to their refpeftive property without the perraif-
fion of the other, becaufe fuch ads afFeft a place with which the
right of another is connefted, and that right is facred from any z€t
of his, in the fame manner as the right of a mortgager or a leflee. —
Befidcs, the freedom and abfolutenefs of the property to its owner is
here fupcrvenient, fmce it depends on the confent of another : fo long.
Vol. U. 4 N therefore.
6^2 D U T I E S O F Book XX.
therefore, as that coiifcnt is doubtful, the original reftridion operates.
Ill thcfe cafes, moreover, the detriment is not eveniual^ but is in
fome degree certain ; fmce the driving in of a nail or wedge, or the
breaking of the wail to make a window, tends to weaken the edifice^
whence thefe a£ts arc prohibited.
A paiTaM jp there be along lane, parallel to which, either on the right or
oiidc into a left, runs another long lane, not a thoroughfare, (that is, not open
private lane. ^^ y^^ ^^j^^^ j^ j^ ^^^^ permitted to any of the inhabitants of the firft
lane to make a door to open into the fecond lane ; becaufe the objeA of
making a door is to obtain a paflage to and fro ; and the fecond lane b
not free to the inhabitants of the firfl, fince not being a thorough-
fare, the right of pafiage through it belongs only to the inhabitants of
it. — Some have faid that it is perfedly lawful for any of the inhabi-
tants of the firfl lane to open a door into the fecond ; becaufe the
opening of a door is nothing more than the breaking of a wall by its
proprietor, which, is lawful; but that the prohibition againfl pafling
to and fro ncvcrthelefs remains in force. The authentic doSrine
however is, that the opening of a door, in fuch cafe, is unlawful;
becaufe after the door is opened it will be difficult to prevent a con-
tinual thoroughfare ; and alfo, becaufe there is a poflibility that after
fome time the right of paflage might be claimed by the pcrfon who
made the door, and the very circumfVance of the door might be
pleaded as a proof of his right. If, however, the fecond lane be not
long^ but Jhort^ the inhabitants of the firfl lane have a right to open,
doors into it; becaufe they have a right of paflage through it, fince
on account of its (hortnefs it is confidered as a courts in which
all have a right of participating, whence it is that they have all
an equal claim of Sbaffa in cafe of the fale of any of the houfes
in it.
An indefinite If a pe* fon vagucIy claim fomcthing belonging to a houfe, and
conpoTi^ed. *c proprietor of the houfe deny his right to any things but after-
5 wards
Chap. IIL THE KJZEE. 643
wards compound with him for his claim, fuch compofition is valid ;
for although the article in difputc was .not known, yet a compofition
with a ^nown article for one that is ir/iknown is lawful, according to
our do£lors, fince as the article compounded for merely Jrofis^ the
tuiccrtainty concerning it can never create ftrife ; — for uncertainty,
in a matter which drops ^ leaves no room for contention, as this can-
not occur but in cafes of uncertainty reipefting things the delivery of
which is required*
If a peribn claim a houfe in the pofTeflion of another, on the plea Cafe of a
that ** the poffeffor had, at a former period, made a ff/t of it to him," S**^%"'^'
and upon being required to produce evidence, (hould then fay ** he tnd /»«*•;?.
** denied the gift, and I therefore bought the houfe from him," and
produce witneiTes, and they atteft the purchafe, but fbte the date of
it to be antecedait to the gift, fuch teflimony is not admiflible, be*
cau(b of its differing from the ailertion of the claimant with refpeft to
the date of the deeds ;— ^whereas, if they were to atteft the purchafe
as having been made pojlerior to the gift, their teftimony would in
that cafe be admitted, becaufe of its conformity to the claimant's plea.
If, on the other hand, he plead a gift, and then bring witneiles to
prove the purchafe previous to the gift, without mentioning the de-
nial of the gift by the donor, in this inftance alfo the evidence is not
admiflible*— This is mentioned in various copies of the Jama Sagbeer\
and the reafon of it is that the claim of the houfe, in virtue of a gift,
is an acknowlcdigment of its being the property of the giver; but
from which the claimant afterwards recedes by declaring that he had
purchafed it prior to the gift, which is a contradidion^ — ^It is other*
wife in the former cafe; for there the purchafe is declared to be fojlc'-
tlor to the gift ; and a declaration to this^ffed, fo hx from denying
the property to have esdfted in the donor at the time of the gift, is
rather a confirmation of it«
4Na If
644 DUTIES OF Book XX.
If the pwt- If a perfbn poflciled of a female flave fay to another ** you pur-
m)efl!mbe " chafed this flave from me, and have not paid me the price," and
^*"*hlftr^* the other deny the fale, and the poffcflbr of the flave determine in his
the mafter own mind to drop the fuit, and of confequence refrain from any fur-
whh ten^** thcr contention with the other, he may then lawfully cohabit with
her, fmce the denial of the purchafer annuls the fale in the fame man-
ner as where both parties deny it.
Objection. — How can the fale be annulled by the mere deter-
mination of the feller in his own mind to relinquifli the fuit, flnce no
contrads can be annulled by the mere determination to annul them ;
whence it is that, in a fale with an option, if the pofleflbr of the op-
tion determine to annul it, flill the annulment does not take place im-
mediately on the forming of fuch refblution ?
Reply. — la the cafe in queflion the fale does not become null
merely by the determination, but becaufe of the determination
being joined to a conduA that manifefts it, fuch as the detention
of the flave in the proprietor's pofleffion, his carrymg her away
from the place of contention to his own houfe, and his uiing her as a
fervant.
Intheieceipt If a perfon acknowledge that he had received ten £nns from an-
2J5^J^ other, but afterwards afTert that they were Zejf^ or bad^ in that cafe
fher«r#MP#r }^|$ declaration mud be credited; becaufe bad £rms^ although of an
ditedwithre. inferior value, are neverthelefs of the fpeciesof ^/^ix, whence if, in
^^^. ** a SirfiAc^ a perfon take poflcffion of bad ones in exchange for gooJ^
it is valid. As, moreover, a receipt of £nn$ is not reftrifted to good
oqes, it does not follow, from his acknowledgment of the feiztn, that
the dirms were good; and fuch being tho cafe, his declaration mufl
be credited, becaufe he denies the receipt of good dirms^ which is his
right. — ^It would be otherwife if he were to declare that ** he had
<* received ten^ooi/DiRMs,** or that ** he bad received his right ^^^ or
*^ the price of his wares,** or ** a difcharge of bis claims,** and af-
ter wsrds to allege that the dirms were badi for in neither of thcfc
cafes
THE KAZ E E. 645
cafes would bis declaration be credited; becaulc in the firft cafe he
cxprclsly acknowledges the receipt of good Jirms; and in the three
following he makes fuch acknowledgment by implication^ and there-
fore his fubfequent declaration to the contrary, being confidcred as a
prevarication, is not credited ♦.
If one perfbn (ay to another ** I owe you one thoufand dirms^^ A credicor
and the other reply " you do not owe me any thing," but afterwards, acbwv ac-
in the fame meeting, fay " you owe me one. thoufand dtrms^^ hi ^""JJ^^J^a^^^^
that cafe he is not entitled to any thing unlefs he adduce proof, or afterwards
the debtor verify his aflertion ; becaufe the debtor's acknowledgment hu claim but
was virtually annulled .by his denial ; and his fubfequent affertion of ^h^^'^Sw^
courfe Incomes a claim de novo^ which therefore requires either to be ▼«>ficadoii.
proved, or to be verified by the debtor. It is otherwife where a
pcrfon fays to another ** you bought certain goods from me," and
that other denies; for he might neverthelefs afterwards, without
prevarication, confirm the declaration of the p?rlbn in queflion in the
fame meeting ; becaufe in a contrail of fale one of the parties only
cannot annul it ; in the fame manner as one of them is incapable of
making it. — ^The reafon of this is that the acknowledgment of a con-
traft of fale is the right of the buyer and feller jointly, and therefore
the contrad is not annulled by the denial of the purchafer only: the
confirmation of* the purchafer, therefore, after hb denial, is valid,
fmce his denial did not occaiion an annulment. — A peribn, on the
contrary, in whofe favour an acknowledgment is made, may of him-
felf annul fuch acknowledgment by a rejedion of it; and his fubfc*
quent affertion correfponding with the acknowledgment is not a cor-
roboration of it, becaufe the acknowledgment did not then exift, it
having been virtually done away by his rejeftion of itr-Hence the fub-
^ Here follows an account of tbo different gradations of JSrm from good to bad,
wbidi tt omitted indie traoaatioo, as tc will hereafter be fully explained in its ficopcf
fequent
646 D U T I E S O F Book XX.
fequent afTertion is a cblm de ncvo^ which confequentiy requires either
proof by witneffes, or the verification of the debtor.
In a claim Jf a perfon make a claim upon another, and that other declare
evidence of that he never owed him any thing, and the plaintiff* prove, by wit*
provinJaaif. ^^^^^^t that thc defendant owes him one thouland Jinns, and the dc-
b^*'Si^^ fcndant, on the other hand, prove by witneflcs that he has paid
the fame, in that ca(e the evidence of the defendant mud be credited :
and in the fame manner alfb, the evidence of the defendant muft be
credited, in cafe it tend to edablifh his having obtained a releafement
or difchaige of the claim. — Ziffirr maintains that the evidence of the
defendant muft not be credited, fince payment is a branch of obliga-
tion, and the defendant having denied the exiflence of the obligation
at any period, is therefore evidently guilty of prevarication. Our
doctors, on thc other hand, argue that a confiftency with regard to the
denuil and thc proof is here poflible, becaufe unjuft debts are forae-
times paid to avoid litigation, and releafements from them are like-
wife ibmetimes given. Sometimes, alfo, a defendant, after denying
the validity of the claim, compounds with the plaintiff*; and in fuch
cafe he is bound to pay thc compofition, notwithfbnding the debt for
which it was made may have been unju(l. — If the defendant declare,
'* I owe you notbing^'^ in that cafe alfo his evidence, to thc cffeft
above recited, is creditable, becaufe of its perfeA conformity with the
aflertion that '* he owes him notbing^^ which evidently means at ibat
iime^ m as much as he proves that he had afterwards paid it to.him««—
But ifhe wereto fay ** I never owed you any thuig, and I do not
" know you,'-*— the evidence he might afterwards produce of his
having paid thc debt, or of his having obtained a releafement from it,
would not be credited; becaufe thc contradiiftion between his affcr-
tion and the evidence cannot in this cafe be reconciled, fincc no mail
enters Into thc bufincfs of giving or receiving with one of whom he
has no knowledge. — Kadoorce remarks that in this cafe alfo the evi-
dence mufl be credited, becaufe the contradiction that fubfiils is not
wholly
Chap. lU. THLKJZEE. «47
wholly irreconcikablet in as much as women who are kept concealed
often tran£id bufinrfs mediately through others, without knowing
the perfon with whom the bufinefs is concluded; and it alfo often
happens that men of rank, when a aiob aiTcmble at their door and
make a noifir^ define their agents to give them fome money to pacify
them.
If a perfon. declare that *^ he has purchafed a female flave from CaTeoridid
" another," and that other deny that he had ever icrfd her to him» and SSjfTae.
the purchaler having proved his afiertion by witoefies, an additional ^«^k«^**v«-
finger be difcovered on the hand of the flave, and the feller prove by
evidence that the purchaler had exempted him from refponfibility for
every defe&« hi that cafe the teftimony of the feller mull be rejected,
fince he is evidently guilty of prevarication. This is the dodrlne of
Htkt Zibir RffiffAjfet. It is rebted, as an opinion of .Aboo Toofrf^ that
the evidence df the feller muft be credited, becaule of the analogy of
this cafe to that of debt, as before explained, in which it was (hewn
that there was a pofliUlity of reconciling the ccntradi6Hon ; for a re*
concilement of the contradi^on is alfo poflible in this cafe, hy fup«
pofing the feller to have been an agent for another, on which fuppofi-
tbn the declaration of the proprietor, that *' lie had not fold the
<* (lave,** would have been true, and his fubfequent plea, of having
been exempted from a re(ponfibility for defe&s, would alfo have been
valid. Thus the apparent contradi£Uon is capable of reconcilement.
The ground on which the Zihir Rmvdyct proceeds is, that the plea
of having been exempted from a warranty agauift defe&s Is an acknow-
ledgment of the esiftence of the fide, which he had before denied,
and hence it neced^y fbUows that he prevaricated.— It is otherwife
in the ca(e of ddit, for in that cafe the payment is no argument of the
refpondent*i acknowledging the exigence of it, fince (as has been
before explained) unjuft debts arc often paid to avcnd flrifc.
If
<4« D U T I E S O F Book XX.
Adccd far* If a perfon, havmg acknowledged a debt toanother, (hould fub-
Smu HpnT* ^i^be a deed to that efieft, and at the cooclufion of it infeit the fol-
G^UfbtdL ^^^i fcntencc, " Whofoever produces thb deed of acknowledge-
** menty and claima the thing recited thercbt is proprietor thereof^
^* if* it pleafe GoDt**— ort if a per(bnt having ibid ibmething to an-
other, ihould at the end of the bill of fale inieit the foUowmg (en-
tencct ** If any perfbn (hall hereafter chum the propertj^ of the fub«
^* }t€t of the fide, in that cafe I am anfwerable for the fiune, if it
'^ pleaic God/' — in both thcfe cafes the deeds are of uo effc&i
whence^ in the firft cafe, the acknowledgment is nulU and in the
(econd, the fide is invalid. The two difciples hold that in the
former caie the debt is binding, and in the latter cafe the fale is valid ;
bccauie in thdr opinbn the condition ** if it pleafe Goo*' applies,
not to the general purport of the deed, but merely (in the former
inftance) to the expreflion ** Whoever produces this deed of acknow-
" ledgment,'* and fo forth,— or (in the latter) to the expreilion •• If
^' any perfon (hall hereafter claim,** and (b forth; becaufe the defign,
in drawing up deeds of acknowledgment and of (ale is merely to cor*
roborate and confirm the a£t; and if the expreflion in queftion bad a
reference to the whole deed, this defign would be defeated. Haneefa^
on the contrary, being of opinion that this condition applies to tbc
wbok of the deed, therefore holds it to be invalid *• — It is to be ob-
(crved that if a blank be left at the end of a bill of fale or deed of ac-
knowledgment, and the words ^^ if it fUafe God** be afterwards
written, our lawyers are of opinion that the cbufe does not afi^
the bill or the deed, becaufe the blank, in either cafe, marks the coa*
dufton.
^ Tbearjumcnts both of die two difciples ind of ASrai^ are more fully defaild in the
original ; but as fhejr relate to princi^ks proper to the JbMi language, the tranflator has
giren oidy ^fiifiwna of thcou
CHAP.
Chap.IV. the KAZEE. 6+9
C H A R IV-
Of the Decrees of t Kdzu relative to Inheritance.
If a chrUlian die, and hb widow appear before the Kdzee as a Muf- Cafeofthe
fiimJ, aiid declare that •* {he had become fo /ncc the death of her cm/^« *
hufband/* and the heirs declare that Ihe had become fo iefort his ciuming her
... inhericaiice
death, their declaration muft be credited. Ziffer is of opinion that after havinr
the declaration of the widow muft be credited ; bccaufe the change of f^^iT^
her religion, as being zfifervenicnt circumftance, muft be referred to
the neareft poffiblc period. The arguments of our doilors arc« that as
the cau/c of her exclufion from inheritance, founded on difference of
faith, exifts in the preient, it muft therefore be confidered as extant
in the preterite, from the argument of the prefent ; — ^in the fame man-
ner as an argument is derived from the prefent, in a cafe relative to
, the running of the water courfe of a mill ; — ^that is to fay, if a difpute
arife between the letibrandlejQke of a water-mill, the former aflerting
that the dream had run from the period of the leafe till the prefent
without interruption, and the latter denying this, in that cafe, if the
ftream be running at the period of contention, the aficrtion of tlie
lejir muft be credited, but if otherwife, that of the /(fee. As,
moreover, an argument drawn from apparent circumftances is proof
fufficient to fet afide the claim of a plaintiff, it follows that the ar-
gument in queftion fuffices, on behalf of the heirs, to defeat the plea
of the widow. — ^With refpeA to what Zijir objecls, it h to be ob-
ferved that he has regard to the argument of apparent circumftances,
for eftablifliing the claim of the wife upon her huiband*s eftate, and
Vol* II. 4 O an
650 DUTIES OF Book XX.
an argument of thb nature does not fuffioe as proof to tftJfBJb a
right although it would fuffice tOMiitf/one.
CA oTile If a Muffubum^ whofe wife was onoe aChriftian, ihould die, and
mdovMira ^^^ widow appear before the KSom as a Muffimi^ and declare that
jgjg[^ (he had embraced the fstth prwr to the death of her huiband, and
teSlltt^' the heirs afiert the contruyt— in thb cafe alfo the aflertion cf the
cwcaaSaMt. ^^^ ^^^^ ^ credited, for no regard is paid, in this inftance, to any
argument derived from preient drcumftances, (as in the cafe of the
water-mill,) fince fuch an argument is not capable of cftahliflung a
claim, and the widow is here the claimant of ber hu{band*s property.
With refpeft to the bars, on the contraiy, they are repellants of the
claim; and probability is an argument in their £ivour, fince the i^Iaai-
ifm of the widow is fupervenient, and is therefore an argument
agaihft her.
A treict, M Ir a perfon who had depc^ed four thoufand £rm in the hands of
£ m£^ another fliould die, and the truftee acknowledge a certain perfon to be
»wp*y ^ the fon of the deceafed, and bis trueand only heir, he is bound to pay
fdMifecvcr to that perfon the four thoufand Arms which he held in truft ; becauie
JjJjJJJ;^^ m this cafe he makes an acknowledgment that what he retains in truft
* is the right of the heir, and confequently it is the fame as if, during
the life of the perfon from whom he recdved the depofit, he had ac^
knowledged that it was his righL It is otherwife where a truftee
makes an acknowledgment that a certain perfon has been appointed an
agent for fitTun by the proprietor, or that fuch an one has purcbafcdiikt
depofit from the proprietor ; for in that cafo he could* not be defired to
deliver up the depolit, becauie this acknowledgment proves the aftual
exiftence of the depofitor, fince it ihews him to be (till living. His
acknowledgment, therefore, of the agency or the purchafo, is an ac-
knowledgment afieding the proper^ of another: but this cannot be
objeded to an acknowledgment made by a truftee after the death of the
proprietor, for upon that event the property devolves upon the heirs.—
6 It
Chaf-IV, the KJ zee. 65*
It it otherwife where a debtor acknowledges that a certain perTon has
been appointed agent for ieizin by his creditor; for the acknowledge-
ment here relates to his own property, in as much as he pays the debt
1^ means of his own property^ and the agent receives the lame ; and
hence, after fuch acknowledgment, he becomes bound to pay it«— -If
the tniftee, after making an acknowledgment in favour of the Ton
and heir, in the manner above related, fliould again make an acknow-
ledgment in fiivdur of anodier fbn, and the one firft acknowledged
deny the fame, in that cafe he [the tmftee] is bound Co pay the whole
to that one; becaufe after fuch acknowledgment became binding (in
the manner already exphined) his tenure of the property was no Imiger
valid ; and hence his fubfequent acknowledgment in favour of the
other ion is an acknowledgment with refpeA to the abfblute property
of the firft (on, and is confequently invalid,— in the fame manner as
holds where the firft fbn is notorious;— and alio, becaufe, as at the
time when he [the truftce] made the acknowledgment in favou): of
the firft fon, no other fen appeared to afiert his right, the acknow-
. ledgment was therefore valid; but as the firft ion is prefent to deny
the acknowledgment afterwards made in fiivour of the fecond ion, that
acknowledgment is therefore invalid.
Wh£K a divifion is made of the effects of a deceaied perfbn be- hcWMSoa
tweeu his heirs and creditors, the KJzee muft not require iecurity gT"*^*
either from the heirs or the creditors, as a precaution in cafe of the mdlMcat^
appearance of more heirs or more creditors, fer this would be op- ^!^1S!m
preflion, as being a deviation from common pradUce. This is ac- '^^^y
cording loHanccfa. The two difciples maintain. that he muft re- behalfarthoA
quire fccurity. — This difagrccmciit relates to a cafe where the debt of JbSat*^**
the creditors and the right of inheritance is proved by evidence, and
where they feverally declare that they know of no other debtors or
heirs than thcmfelves.— The reafening adduced by the two difciples
in fupport of their opinion is, that the Kd$ut is the confervator of the
rights of the abfent ; and it is moft probable that feme of the creditors
4O a or
6i2 D U T I E S O P Book XX.
or heirs may be abfent, fince death is often fuddenv and may happea
at a time when they are not allpreient; and as the taking of fecuritjr
is on this account an adviieablc precautiont the Kdzee muft therefore
take this precaution, in the fame manner as he exa^s fecurity when
he delivers a trove, or a fugitive (lave, to the owner^ or when he
awards maintenance to a wife from the e(bte of her ab(ent hufband.
The arguments d Haneefa upon this point are twofold.— First, the
right of thofe that are prefent is efhbltflied with certainty in cafe of
there being no abfent heirs, and nappareiufy eftaoliflied in the meaa
time, even if there be abfent heirs; and as it is iucumbent on the
Kd&ii to z€t according to what is aff^rmt to him, he muft not fuf*
pend his proceedings in favour of thofe that are prefent, by exa£tiug
fecurity for the rights of the abfent, whofe adual exiAence is uncer-
tain i — in the (ame manner as where a perfon cftablifhes tht purcbafe
of any thing in the hands of another,-^or a debt due to him by a flave ;
that is, if a perfon prove a right by purchaic to a thing in the pof-
fdfion of another, it is the duty of the Kixee immediately to order it
to be delivered to him without exacting fecurity, although another
may eventually appear and cbim it in virtue of a prior purchaie; — ^and
in the (ame manner, if a perfon prove a debt due to him by a (lave,
the Kdzee muft order the flave to be fold, to the end that payment
may be made from the price, without exadiug any fecurity, although
there be a poflibility of another creditor afterwards appearing.-—
SscoNDLY, the principal is unknown, and iecurity is invalid if the
principal he not clearly pointed out,— as where, for inAance, a per(bn
fays to feveral debtors *' I am bail for cne of you,^' in which ca(e the
fecurity is invalid, becauie the actual principal is not (ignified, not*
with{bnding there be a certainty of his exiAence. In the cafe in quef*
rion, therefore, the fecurity rs invalid -a fsrtkri^ fmce even the tx^
iftence of the principal is uncertain. — It is otherwife in the cafeof de«
creeing iruintenance to the wife of an aUentee from the effe£U of her
hulband, becaufe her right being known and eAabliihed, the perfon
in £ivour of whom the fecurity is gnrea is not uncertain.— With re*
%ea
\
Chaf. IV. THE KA ZEE. 653
fpeft to the cafe of a fu^ivc (bvct or a tfove property, there are two
traditioii&--*Coiiceraiog tho(e, however, there is alfo a differeace of
ofnnion. — Some have fidd that if the J!(^f give a trove property to the
proprietort oo his defcribing the marks, or a fugitive flave to his
mailer, on the acknowledgment of the flave that^^ the (aid pcrfoii is
his matter,** it is incumbent upon him, in either cafe, to take (eca«
lity.— And aU our dolors coindde in this opinion; becaufc tho right
of the receiver is not proved, whence it is in the power of the K&ut^
if he pleafe, to withhold the flave fiom the perfon in queftion ako»
gether.
If a perfon pmve, by evidence, that a houfe then in the pofleffion h the Joht
of another had been kft between him and his brother, who is abient, a pmcnx
in that caTeonehalf of the houfe muft be given to him, and the other 2£/^fa|,
half left in the hands of the perfon who has pofleflion; and no fecu- ^F«^
rity muft be exa&ed firom liim.— -This is accordingto JF^MMg^— The Us sure; Uc
two diiciples are of opinion that if the poOeflbr deny the right, the m^^S**
fliare of the abient brother muft be put into the hands of a truftee ^^^^
until his return; but if he admowledge the rij^t, it muft then be left
in his pofleffion ;*-ibr they argue that a denkr^ as being an ofpmnt^
cannot be truibd with the property; whereas it may be entrufted to
an Mebmtfk^gar^ as he is a friend and confident. — ^The argument of ^i»-
9^a is that the decree c£ the iC&sar, awarding that ^* the deceaied left
^^ the houie to his heirs,'* is adecree merely m £ivour of the Jeeeafeii
for inheritance cannot take place unlcis the property of the p^lba
throuj^ whom it devolves be proved; and.as there is a probabBity of
the deceaied having oonilituted the pofleflortniilce^ itfiiUowsithattbe
houie cannot be taken ftom him; as holds m the caie of his acknow-
ledg^ it — ^In rtpxA to his JmuJ^ it is virtually annulled by the do*
creeofthelC£sir; and thefoia a probability of his not denying the
n§xl agab, becauie the diipute in queiUon hiSi become known bodi
to himfelf and the JCifaw.— If the cbdm, in the cafe in quefiion, relate
to mnea^k property, ^ibme have iaid that the article is to be taken
firom
654 D U T I E S O F Boos XX.
from the poflfeflbfi according to all our dolors; becaufe there is a ne*
ceflity for the confervation of it ; and this is aofwered an the beft
manner by the taking of it from the poflcilbr, who, on account of his
denial of die right of the other, may convert it to hb own ufe, either
from oppofition, or from a belief of its being his own right: but when
the Kdzee takes it from him, and depofits it with a truftee, the pro*
bability is that the trullee, fiom his integrity, will take care of it.
The cafe is different with re(pe£fc to immovable property, for that is
preferved in itfelf ; whence it is that an executor, although he have
power to fell the mweailes of an abfent heir, arrived at the age of
maturity, yet cannot do fb with regard to his immoveable property.-—
Others, however, have faidthat the fame diflerence of o{nnion Tub*
fids with regard to moveable as obtains with refpeft to immweabk pro-
perty.— It is to be obferved that the opinbn of Haneefa^ that the half
ought to be left in the hands of the poileilbr, is the moft authentic,
bccaufe there is a necefHty for confervation, and this is anfwcred in
thebefl: poflible manner by putting it in the hands of one who is re-
fponfible in cafe of its lofs, fince it is likely that he will be moft care-
ful of it. — The poileilbr, moreover, is refponiiblein coufequence of
his denial, whereas a truftce is not. — ^With refpeA to what is further
faid) that ** no fecurity muft be exa£ted,*^ it proceeds on this prin-
ciple, that the exaction of bail is an occafion of litigation and conten-
tion ; and it is the duty of the Kazee to prevent thele, — not to excite
them. — If, in the cafe in queftion, the abfentee return, there is no
nccelTity for again producing evidence, bccaufe he is entitled to the
half in virtue of the Kdzee's decree in fiivour of the heir that was pre-
fent ; for any one of the heirs of a deceafed peribn ftands as litigant oa
the part of all the others, with refpeft to any thing doe to or fy the
deceaicd, whether it be debt or fubftance; (ince the decree of the
KJzee^ in fuch cafe, is in reality either in fiivour of or againft the de-
ceafed; and any one of the heirs may ftand as his reprefentative with
reipeft to fuch decree. — It is otherwife with refpeft to taking pof-
IcfTion of the portion due to another from the eftatc of a perioQ de-
ceaied;
Chaf. IV. r HE KjIZ EM. 6$$
ceafed; that it to fty, a part of the heirSt althooi^ they be fitigants
on behalf of another heir, caonot, however, take pofieflion of his
portion on his behalf, bccaufe a perfon, in taking poileifion, a^ for
himfelf, and is therefore incapable of afting in it, a? agent, for an**
other. Hence the perfon prelcut is not entitled to receive any other
portion than his own ; in the fitme manner as where an heir claims a
debt due to the deceafed, and the Kd%ee pafles a decree in his favour;
in which cafe the heir, although he ftood as litigant in behalf of
the other heirs, is yet not entitled to receive tbdr (hares of the
debt.
Objection.— If one heir be litigant in behalf cf the other; it
would follow that each creditor is entitled to have recourie to hin\ for
payment of his demand; whereas, according to bw, each b only ob-
liged to pay his awn (hare.
Reply. — ^The creditors are entitled to have recourfe to one of ie-
veral heirs only in a cafe where all the eflfe&s are in the hands of that
heir^ This is what is (bted in the Jama Kaieer; and the reafon of it
is that although any one of the heirs may z& as flmntiffin a caufe on
behalf of the others, yet he cannot ad as defendant on their behalf^
unlefs the whole of the efiedfcs be in hb pofleflion.
Ip a perfon fay, «* I devote my /n^/^ in alms to the diftrefled,** Analw^
m that cafe the wom^^r/y, thus generally nfed, is con(bued to doS^d
mean that part of his property which is fubjed to Zakat ; whereas, if CJ^IJJJt
a perfon (ay " I bequeath the third of my proferty^^ the term property
is in that cafe con(fa'ued to apply to hb property of every de&ription.
Thb dKtinftion b aoconfing to a favourable cooftmdioii.— -Aiudogy
would fuggeft, in iht former in(fauice alio, that the wbak property b
tinderftood; and tbbopbion has been followed by Zj^; becaufethe
term property [Mif\ appliettoand includes property of every dcforip-
tioo, in a cttcciedms^f^, in the (ame manner aa in a ctffoof AryM^.
Thefea(bnsfor«morofiivourabl€cotiftniaioQoftheIaw in thb par-
ticular are twofoll--Fu:sT, n cUigatioii smpoied by t perfoaupon
bimfelf
<56 DUTIES OF BoQcXX.
himfitfttwdogomtoanobUgatioiii^^ ia other wocds,
if t perfon iropoic toy obligation on himielfy it it valid only with le*
fped to thofe articles concerning which God hu impoied oUig^itiooi
vpon mankind: an obligation oialm^ thereferai impofed fay a peribn
vpon him&lf, takes efibft only with refpeft to fiicb property as Goo
has impoied alms upon.— Bequeft, on the cootraiy, refemblea inherit
tanoe, as the legatee fucoeeds to the property of the deceafed in the
manner of an heir; and hence a beqneft of /ri^/ir/y is not reftri&ed to
any parliatkr defcriptim of property.— Sscohdly, from his mode of
expreflion it is reafonaUe to fuppofe that he undertakes to beftow in
alms that part of his property only which is fuperfluoust and beyond
the occafion of his wants; and this is the part on which Zakit is im-
pofed. Bequeftt on the contrary, as it takes place at a time when
the teftator is free from want, is confidered as extending to the wbok
of his property.— *It is to be obferved that the ipeaker*s dedaration
** I devote my property in alms, &c." includes alfo his Afho^rte lands,
according to Ab^ ^^f^% becaufe land of this defcription is fubjeft to
the obligation of alms, agreeably to his tenets, that, in ///ir, the
confideration of elms is predominant.— According to Mohammed^ oq
the contrary, his jijhoarte land is not included, becaufe, agreeably to
his tenets, the confideration of fufpart to ibe fate is predominant in
/i/Af.— His Kbirijtt^ or tribute lands, are however not included, ac-
cording to all our doftors, becaufe tribute is defigned purely as a (up-
port to the ihtte, and o/mx are no confideration in it.
Cafcorta iFaperlbn%^Idevotemy/Q^!^|^^ [AdSZ^] in alms to the dif-
d».giftor citicflU,** there is in that caie a difeoior of opinio Some have
(aid that this muft be confinied to mean the nAok of his property;
becaufe the term here uled \MiUi\ is of a more gsneral nature than
the term Mdl ufid in the (brmer cafe;— the occafioot moreover, of
re(biAing the applicatkmt in thatinftance, tofuch property as is fub-
ject to Zakit^ is purely becaufe of AA/ b^g the term ufed on that
occafion in the Koran ; and foch being the cafe, the term Mi/A muft.
therefore
Chaf, IV. r HE KJZ EE. *59
therefore be explained in its common acceptation. Othen, agun,
have faid that the teraiis MM and Ma/ import the iame thing in e£feft ;
and this is the better opinion; fince both terms impljr that part of his
property which exceeds his wants, u was -before mentioned ; and that
is the part of his property fnljeft to ZaUi^^£^ however, a peribn
have no other property befid^ what he obliges htmfelf to bdtow in
alms, he muft in that cafe reierve a fufficiency for his own fubfiftence,
and beftow the renuinder; and afterwards, upon his acquiring more
property, beftow a part of it adequate to what he had before re(erved.
With nfyc& to a fuffkiei^ for fahfifitnee^ MfAwmmi has not deter-
mined the quantity, becaufe of the diderent conditions of men. Some
have faid that a ^x^oxa is to Ttitnt only one day^s fubfiftcnce, in cafe
of his being an artificer or labourer; one month*s fubfiftence, in cale
he pofiefs houfes and (hops let out upon leafe; ooft year*s fubSAencc,
in cafe he poflefs immoveable property of lands ; and foTiOOt— *in pro-
portion to the length of time of receiving the income of his property ;
—and on this principle a mercbant is to referve as much as may fuffice
till the probable return of his property.
If a peribn be appointed executor to another, and he be not in- Tfct afttsf
formed of that ctrcumfiance, but neverthdefi fell ibme part of the ^ 'jJiftf "^
tSe6t% of the deceafed; the appomtmoit becomes confirmed, and the ^i'***^^!^^
fide is valid; whereas fale by an agent, on the contrary, is not valid, icttMafUt
unlefs he be informed of his agency.— This diftindion is according to
ihc ZMr JUwdyet. ^i^Ts^/V^isofopinioQtbat the fide by the exe-
cutor is alio invalid, becaufe an executor is, in tUk^ a perfbn ap-
pointed to aft as agent after the death of the teftator, and muft there-
fore be confidered in the fame light with an agent itfon death.— -The
realbn of the difUnftioo, as ftated in the ZdSir Rawfytt. b Uiat the
oflice of an executor is to refrefent^ not to aft as ^gtnt ; for it refers to
a period when the appointment of agency would be null. The ^BtM of
an executor, therefore, do not reft upon his knowledge of the teih-^
tor*s will any more than the afts of an heir;— in other words, if an
Vol. II. . 4P heir
«58 D U T I E S O F Book X)L
hdr were to fell ibme ptrt of the effeOsof thedecaafed, not knowiag
that he wu dead, the iale would be good; audio dib of iale b^ an
executor. — Agmcy^ on the contrary, is merely a delegationt fince in
the cafe <^ ag^icy the power and authority of the conflituent ftiU en«
dure: the afts of an agent, therefore, reft upon his knowledge of his
appotntment. — ^Tho ground of this is, thtf in reftmg the a£b of agents
upon a knowledge of their appointments there b no injury to the con-
ftituent, fince he is himfelf capable of performing fuch a&s ; whereas,
if the aAsof an executor were fufpendcd on his knowledge of his ap-
pointment, an injury would refult to his conftituent, who b bimfdf
incapable of performing fuch aAs.
mMmiami ^' ^ ^^^^ appoint another his agent, and, a perfon having
■MybecSab. biouj^ him ioidligcoceof thb^, he immediately, upm the receipt
cafBti \^ of it, perform fome a&, (fuqh 7%fak fw mftuce,) in that cafe the
aA is vaUd, whether the mformant be firee or a (kve, of mature ago
or odierwife, an nnjuft or juft man; becauiea fissile information of
hb appointment eftaUifhes hb right to aift, although it be no way
hm&ng upon Iiim.
Thb dtfmiflion of an agent is not efiaUiflied until it be attefted t^
be cSiMiiia Ae agent by two perfens of unknown chara£ler, or by one juft num«
Sifc*'^ Thb b the doftrine of Haneefa. The two difciples have (aid that the
law, hi thb caic, b the fame as in the preceding; for » the difmif-
fioo and appointment of agents are concerns of frequent occurrency,
the notification of one perfon is therefore fufficient. The arguments
^Hmuifa are that tlie (imple notification of difmifiion is binding, as
bdog a caufe of the agent*s defifting from adion, snd inducing refpon-
fibility for the property in hb pofilefiion. The notification in queftion,
^ Bf«/i^bbcie lobe underftood t peribn not de|Nttc!d fcjr Ae conaitiieiie, buC
eat iriiolmiif csfinBy hcsid of tbe appoinoaeot hoop lAbnnatioa ef it la the
therefore.
Chaf. IV. THE KjIZEE. <59
therefore, is in one fhape evidence, and conieqoently requires one of
the two conditions of evidence, namely nmmUr [of the witnefles] or
iHiegrity\ in other words, it requires to'be attefted by one juft perfbn,
or by two perfons of unknown charaQer. It is other wiie with refpeft
to the ratification of an apfointment tili agency, fiuce that is no way
binding, as has been already mentioned.— It is alfo otherwtfe where
the dilmiffion is notified by a meffenger from the conAituent, becaufe
the word of a meflage*bearer is equivalent to tint of the fender oiiU
from neceflity, and in that cafe, therefore, the atteftation of one juft
man or two unknown men is not required.— The (anae dtfierence of
opinion obtains in cafes of information conveyed to a aiafter of the
crime of his (lave,*-to the Sba/ee of the iale of a houiet«— to a virgin of
her marriage,— or ro Myffielman converts in a hoiUIc coontiy, who
have not yet taken refuge in the Mi^num territoiy, of particular
ordinances iu regard to religion. Thus if an unjuft perfon inform a
mafter that a particular flave belong|ing to him had conunitted a crimet
and the mafter afterwards fell or emancipate the faid flave, it is not ia
that cafe incumbent upon him to pay the atonement, unlefs the no*
tification of the crime be attefted by one juft man, or by two men of
unknown character, according to Htmeefa: contrary to the opinion of
the two diiciples.— In die (ame manner alfo^ if an unjuft poibn no-
tify the (ale of a houie to the SAij/feef or peribn having the right of
pre-emption over it, and the S/uffee ftiould not thereupon put in his
claim dfSbafa^ ftill, according to Hmeefa^ his right is not avoided ;
whereasi according to the two difciples, it is forfeited. So alib^ if
an unjuft peribn notify her marriage to a virgui, and ihe thereupon
remain filent, fuch fUenccy accofdtng to Hmurfa^ is not an aflnt ;
but according to the two difciples it is.-— So like wife, if an unjuft man
inform an abfent Mufulmem of new ordinances in refpeft to religbiif
and he fliould not conform accoidmg^y, Haiuefa holds that he b not
in that cafe guilty of any offence; whereas the two difiuples are of
opinion that he is.
4P2 I»
tf6o DUTIES OF BoosXX.
Jk'fTntn J^^XS^, or.^AM9mappoiatedb3rliim, rdltheflaveofacerUm
MtiUkibr periba, in order to ififcharge the demands of h'u credttofs, and the
mS^mSt nionqr, after the receipt, be loft or deftrqjred in the handt of the
MijSii If ^^^'^^ otVdJmten, and the flave be then proved to have been the
MMbtrfa piopertj cffbme other pcHoDa in that ca&ndther the Aifafr nor ht^
iStmSSfy ^f^n it lefponfible for the lofi; becabfe MKSatu were fubjea to
luch refponfibilitjr, no one would accept of the appointment ; and the
ri^s of die peo|Je would consequently be deftrojred.— The £&«r,
therefore, net being reipoofible for the lois, the purchaler is entitled
toan indemnifieition from the creditors on whole account the iale was
made, becanfo of die impiadicabflitjr of his being indemnified bjr the
par^widifdiomhenadethebargun. — In the j&me manner as where
an ina^ahlb inftnt* or an inhibited flave appdnts an agent for file,
who aooonfinglj iUls faneihing on hb bdialf, and, the price being
loft after he had received it, a i^ht to the thing fdd is proved fay
anodier; for in that cafo the daira is made on the«MyKr/a»tf, aod
not the tigjMt although be be the patty with whom the bargain was
made.
1» a Kbue command an ezeeotor, whom he lumi^ had ap-
pouted, toi^aflavetofidsfythe creditors oradeceafodpcrfon, and
the executor in obedienoe to diis order acooidio^yidl the (lave^ and
die flave afterwards prove die lig^t of anodier) or £e previous to his
bang ddhrered to the purchafor, and the price in die mean time be
loft after it had been recdved by the executor, — the porchafor muft
m dttt cafe itcqve an indemnification from the «x»ea/«r, not from the
K/Saie\ becaufe^ having been q>pokited by theiC&er to aft at exe-
cutor to the deceafed, he is dier^Me a repidentadve of the Seeetfti^
and not of the JCiur; and hence, m the fiime manner as die decoded
would have been refjwnfibfe under fodidrcumfiances, incafehehad
himi^f made the file during his lifodme, fo alfo is the executor for
* Menlif MiiAatfeiMagMiDbeinapUeofaAiiif fcrltetiC
die
Chaf. IV. THE KJZ EE. 66t
the iaie made after his dead)* The purchafert tbere£9Fe» is enutM
to exaft the price from the executor; and he, again^ is entitled to in-
demnify himlelf from the creditors, fince he aded in the bufinefs of
the file on their behalf. — If, however, any more property of the de«
ceafed be afterwards dtfeovered, the creditors are entitled to rqocive
from it the payment of their debts, which are dill held to remain in
force. — Lawyers have alfo faid that the creditors aje, on their
part, entitled to receive an indemnification from the efUtc for
the competifation they made through the executor, to the pur-
chafer, fmce they incurred that lois in behalf of the deceaftd.
An infant heir, on whofe account any thing b ibid fiom the y|gT^
efbte of a deceafed peribn, is oonfidered in the light of a creditor ; in the um pw-
other words, if an infant heir (land in need of felling ibcnething, and widTm-
the executor accordingly make fuch fcle for him, and the fut^of fSaJh^*
the fale afterwards prove the right of another,— *in that caie the pur*
chafer is entitled to a compenfation from the executor, and thecxe*
cutor from the heir.— If, on the other hand, the jhieim of the lObut
fell anything in behalf of an heir which afterwards proves the light
of anodier; the proprietor is in that caie entitled to recehre a compen-
fiition dire^y from the heir, provided he be an adult ; but if the heir
beaninftnt, theiiQbir muft appoint a perfon for the diichargt of the
debt from hb proper^*
SECTION.
IraJCilMr faytoaperfon^^Ihaveibitenceda certainmantobe AarpcHbo
^ fbned; do you therefore itone him ;**---<)r, ^Mlttveioitence^ apnStaaii
" a man to have his hand cut off; do you therefore cut it off ;*•— or, ^^^*?*'*
^ I have fentenced this peribn to be fcourged; do you therefore icourge
•« him^
66% DUTIES OF BookXX.
*^ him r*^t is lawful for that perfon to z€t according to the Kizee\
orders.— This is the dodlrine of the ZMir Rmsfayet. — ^It is related of
Mobammd^ that he receded from this doOnne, and gave it as his
opiition that the Aasr/s dire^ions, as here fiated, are not to be
obejed unlefs his fentcnce be attefted by one juft man ; becaufe there
is a poAbiKtjr of his bsing in an error ; and if that (houU appear after
the perfbrroance of any of thefe aAs, it would be impoflible to repair
the injury thereby occafioned«— >From this it would appear that the
letters of one Kdzee to another are not valid: — and our nx>dem doc*«
tors greatly approve of this opinbn, becaule many KSaees of the pre-
ient age are loole and irregular: they, however, admit the validity
of letters from one Ktue to another on the ground of neceffity. — The
arguments of the Zilmr Rmnfyet upon this pouit are twofokL — First,
tlie KAm here gives information of a matter which he is competent
to order; becaufe it was in his power to have ordered the execution of
theientenceimiMdiatdy; hence, as he is liable to no fufpicion, he
ou(^t to be credited.-^£CONDLV, obedience to a magiftrate in au-
thority, fuchastheiCtfs^, is declared to be an incumbent duty; and
as obedience to him is manifefted in a belief of his word, it is there-
fore incumbent to believe him* — ^Befides, ImSm Aim Manfior Mati*
rady has (aid, <^ If a Kisee be learned and juft, believe and obey him^
*^ as there is then no reafon tofufpeahim.— If, on the other hand,
^^ he be juft but ignorant, it is then rcquifite to make enquiry of him
V conceraing the cafe; and if, after a full inveftigation, it (hall appear
^< that his fentence was legally founded, in that cafe (and not other-
«^ wife) he muft be believed.— If, on the contrary, he be learned
'* but unjuft in his conduA, or ignorant and unjuft, his orders muft
** not be obeyed, unlefs the perlbn to whom he addreflcs himiclf
^* difcover the reafon that prompted them.**
Q^^oTadir* If a difmiflcd K^ste fay to a perfon ** I have taken one thoufand
Ih^JcS^l •• ^'^w from you, and paid it to another, according to a decree which
^* I padcd to that effed ;* and the perfon in que(Uon deny this, and
aflcrt
Chap. IV. T HE KJ Z E E. 663
aflcrt that the Kdztc had taken it from him unjuftly, ftill the declara* ^^™ ^" ^^*
tion of the Kdzee mud be credited, and confequently he is not re- .
fponfible for the iaid fum. In the fame manner allb, if a difmifled
Kdzte fay to a perfbn ^' I pafled a jufl Icntcnce of amputation againft
^^ you,** and the other afiert that it was unjuil, the word of the
Kazee muft be credited. The law here proceeds on the fuppofition
that in both thefe cafes the perfbns acknowledge that the decrees were
pafied at a time when he was adually Kdzee ; and the reafbn of it is,
that after fuch acknowledgment on their part, probability is an argu-
ment in favour of the Kdzee; becaufe the probability is that no Kdzee
will pafs an unjuft decree. Neither is: it neceflary to cxzSt an oath from
the Kdzee in either of thefe cafes, becaufe an oath is never put to a
Kdzee J and both the pirfbns in quefUon acknowledge that he was ac-
tually iTiis^^ when he paffed thefe decrees. — It is to be obferved that if
the perfon who, in the firft cafe, by order of the Kdzee^ took the
money, or who, in the fecond cafe, cut off the hand,— fhould ieve-
rally declare that they had done fo by order of the Kdzee ^ they are not
reiponfible for the confequences, iince the Kdzee was in office when
he gave thefe orders, and the reftitution of the property to its owner
was. an approved adl on the part of the Kdzee, in the fame manner as
if he had made the reftitution in the prefence of the defendant.—- If,
on the other hand, the perfon afTert that the Kdzee hzd iffued fuch
orders either antecedent to his appointment or after his difmiflion, then
alfb the declaration of the Kdzee mud be credited, becaufe he has re-
ferred the decree to a period which exempts him from refponfibility.
His declaration, therefore, is credited ; in the fame manner as where
a perfon fubjed to periodical madnefs at fixed and certain times, having
divorced his wife or emancipated his flave, afterwards declares that
** he did thefe during bis /wjdJi^/S;**— which is credited ; whence the
divorce or emancipation are rendered void. — ^In this cafe, however, if
the executioner of amputation, or the receiver of the money, acknow-
ledge thefe deeds, they become refponfible for them, becaufe they
thcmfelves acknowledge the performince of afts, which induce rc-
j fponfibility.
664 D U T I E S O F Book XX,
refponfibility ; fince the authority under which they a£ted is doubtful;
for the affertion of the Kizet is credited in thefe inftances merely to
procure an exemption to himfelf from refpoolibility, and not to pro*
cure it to others. It is otherwife in the firfi caie, where thc(c z6t%
are allowed to have been performed in virtue of an order from him
when he was actually Kdxec. — All this proceeds on a luppofition that
the money no longer remains in the hands of the perfon who had re-
ceived it in virtue of the Kdzee\ decree : for if the money be llill in
the pofleflion of the receiver, and he coincide with the Kizse con-
cerning the amount, it muO: in this cafe be taken from him, whether
the perlbn from whom it was originally taken confirm the Kdzeet
allegation, that ** he had paid the money to that perlbn whilft he was
^^ in office,** or whether he plead that he [the Kdzee] had taken and
paid it whiUl he was not in office ; becaufe as the receiver here in fa^
acknowledges that the money had formerly been in the poileflion of
this perfon, his plea of having hecomz proprietor of the money cannot
be admitted but upon proof; and the mere allegation of the difmifled
Kdzee is not proof, fince after difmiffion he becomes as a common
perfbOi
HBDJrA.
( 6^5 )
H E D Jl r A.
BOOK XXL
Of S HA HAD IT, or EVIDENCE.
Chap. I. Introductory.
Chap. IL Of the Acceptance and Rejeftion of Evidence.
Chap. III. Of the Difagreement of Witneiles in their Teftimony,
Chap. IV. Of Evidence relative to Inheritance.
Chap. V. OftheAttefbtion of Evidence.
CHAP. I.
IT is incumbent* upon witneflb to bear teftimony, nor is it law- gyMgceit
ful for them to conceal it, when the party concerned demands ic apMilitm.
from them; becaufe God fays, in thcKonAV, •• Let not wit- SJ^J^L*'
coBcnaedi
• Arab Arxi ncaabt aa irvfam/ 4^9^ aaddicrdbrtLM^fai/fNSr.
VOU II. 4 0^ •• HBMW
666 EVIDENCE. Book XXL
^' KESSES WITHHOLD THEIR TESTIMONY WHEN IT IS DEMANDED
" FROM them;" — andalfo, "Conceal not your testimony,
" FOR WHOEVER CONCEALS HIS TESTIMONY IS AN OFFENDER/*
— The rcquifition of the party, however, is a condition ; bccaufe the
delivery of tcftiraony is the right of the party, and therefore rcfts
upon his requifition of it, as is the cafe with refpeft to all other
rights.
both is not Ik cafcs inducing corporal ptinilhment, witnefies are at liberty
acafcTn-^" either to give or withhold their teftimony as they pleafe; becaufe in
ilwL»/!^ fuch cafe they arc diilradled between two laudable a£Hons; namely,
'^'^» the eftabliftiment of the punifhment, and the prefervation of the cri-
minaFs character : tlie concealment of vice is, moreover, preferable ;
bccaufe the prophet faid to a perfon that had borne teftimony, ** Fc-
** rih it would have been better for you^ if you bad concealed it x^* — and
alfo, becaufe he elfewhere faid, ** Whoever conceals the vices if his
** brotUr Mussulman Jhall have a veil drawn truer bis own crimes in
•* the two worlds by God." — ^Belides, it has been inculcated both by
the prophet and his companions as commendable to aiEil in the pre-
vention of corporal puniihment ; acid this is an evident argument for
onkisitin. the Concealment of fuch evidence as tends to eftablifii it. It is in-
ZThc^^iheVaa cumbent, however, in the cafe of tbeft^ to bear evidence to the pro^
rLtlwlJ /^'•(Tt ^y tcftifying that ** a certain perfon took fuch property," in
as may not order to prcfcrve the right of the proprietor: but the word taken muft
niflunenu be ufed inftcad oi folen^ to the end that the crime may be kept con*
cealed: bcfides, if the woxA folen were ufed, the thief .would be
rendered liable to amputation; and as, where amputation is* incurred,
there is no refponfibility for the property, the proprietor's right
would be deftroyed.
Theerideiice EVIDENCE IS of feveral kinds. The evidence reqmred in a cafe
^IXI/yJ'is oi whoredom is that of four men, as has been ordained in the Koran;
iKn of/tar and ihc teftimony of a woman in fuch cafe is not admitted; becaufe
8 Zshr'a
Chap. L EVIDENCE. 667
Zibra fays, *^ in the time of the prophet and hb two immediate (lie*
^* ceffi>rs it was an invariable rule to exclude the evidence of women
^^ in all cafes inducing punllhment or retaliation ;*' and alfo, bccaufc
the teftimony of Women involves adegreeof doubt, as it is merely a
fubfiitute for evidence, being accepted only where the tcftimony of
men cannot be had ; and therefore it is not admitted in any matter
liable to drop from the exigence of a doubt. — The evidence required « other crl-
in other criminal cafes is that of two men, according to the text of the mm mtmi
Koran ; and the teftimony of women is not admitted, on the ftrength
of the tradition oi Zibra atx>ve quoted.—- In all other ca(es the evidence and in all
required is that of two men, or of one man and two women, whether ^tm^J^^'
the cafe relate to property, pr to other rights, fqch as marriage, di- •^'^^
vorce, agency, executor(hip, or the like.— ^i&^< has faid that the
evidence of one man and two women cannot be admitted, excepting
in cafes that relate to property, or its dependencies, fuch as bire^
bail^ and (b forth; becaufe the evidence of women is originally in*
admiflible on account of their defed of underAanding, their want of
memory, and incapacity of governing, whence it is that their evidence
is no.t admitted in criminal cafes.
Objection. — Since, according to 5i6^i, the evidence of wonoen
is originally invalid, it would follow that tbeir evidence alone is not
admiflible even in a cafe of property % whereas the evidence of four
women alone is, in his opinion, admiilible in fuch cafe.
Reply.— The evidence of four alone is neceflarily admiflible i(\
cafes of property, becaufe of their frequent occurrence;«^contrary to
the mode of proceeding with refpfe£t to marriage^ (for inibnce,)
which being a matter of greater importance and more rare occurrence
than mere matters of property, cannot therefore be clafied with
them.
«— The reafbning of our doctors is that the evidence of women is
originally valid; becaule evidence is founded upon three circumfbuices,
namely, fight, memory, and a capability of communication ; for by
means of the firfl the witnefs acquires knowledge; by means of the
4 Q^ fecond
668 EVIDENCE. Book XXI.
fecond be retains fuch knowledge; and by means of the third he is
enabled to impart it to the KSzee\ and all thefe three circumftances
cxift in a woman ; (whence it is that her communication of a tradition
or of a meflage is valid:) and with refped to their want of memory,
it is capable of remedy by the junftion of another; that is, by fubfti-
tuting two women in the room of one man; and the dcftft of me-
mory being thus fupplied, there remains only the doubt oifuhflUut}on\
whence it is that their evidence is not admitted in any matter liable
to drop from the exiftence of a doubt, namely, retaliation or puuifh-
mcnt : in oppofition to marriage^ and fo forth, as thofc may be proved
notwithftanding a doubt, whence the evidence of women is admitted
in thofe inftances.
Objection. — As the evidence of two women is admitted in the
room of that of one man^ it would follow that the evidence of four
women alone ought to be admitted in cafes of property and other
rights ; whereas it is otherwife.
Reply.— Such is the fuggeftion of analogy* The evidence of
four women alone, howe\'er, is not accepted, (contrary to what ana^-
logy would fuggeft,) becaufe if it were, there wouH be frequent oc^
cafions for their appearance in public, in order to give evidence;
whereas their frhacy is the moft laudable..
TkecTUcoce The evidence of one woman is admitted in cafes of t'^tbj (as
aiosTfoflUct where one woman* for infhnce, decbres that <* a certain woman
2|JJ2?w&h ** brought forth a certain child/*) In the fame manner alfo, the
* kib!!^ evidence of one woman b fufficient with refpeft to virginity, or with
\tmSr^ refpea to the defcAs of that part of a wonoan which is concealed from
man.— The prbciple of the law, in thefe cafes, is derived from a tra-
ditional faying of the prophet, ** The evidence of women is valid ufitb
*^ refpeH to fuch things as it is not fitting for man to bebotd.^^ — Sbafei
holds the evidence o(four women to be a necef&ry condition in fuch
cafes. The foregoing tradition, however, is a proof again(b him ;
and another proof againft him b that, ia the cafes in queftion^ the oe-
ccflity
Chap. I. EVIDENCE. 669
ceflity of male evidence is remitted^ and female evidence credited,
becaufe the ocular examination of a woman^ in thefe cafes, is lefs in*
decent than that of a man: and hence alfo, as the fight of two or
three perfbns is more indecent than that of one, the evidence of more
than one woman is not infifted on as a condition in thoie tnftances*
It is to.be remarked, however, that if two or three women give evi-
dence in fuch cafes,, it is a commendable caution, becauie the evidence
may be of an obligatory tendiency. — ^Thc law with refpe£t to the evF-
dence of women iu cafes of birth has been fully fct forth in the book
of divorce, treating g^/A^ ejJailiflmieHt ef parentage*^ where it is faid,
that *^ if a man marry a woman, and (he bring forth a child at a pe-
*^ riodof fix months, or more, after her marriage, and thehufband
** deny the parentage^ in that ^-''r the evidence of one^oman is fuf-
•* ficient to efiablifh it •/* — and there arc alfo other examples recited to
the fame effeil. — ^Thc law with rcfpcft to the evidence of a woman
in cafes of virginity, is that if a wooun complain of the impotencyof
her hufband, and afiert that her virgmity fliU exifts, and another
M'oman bear evidence of the fame, in that cafe one year muft be fuf-
fered to elapfe, and then a feparation mufl be effefled between the
hufband and wifefl becaufe virginity is a real entity, and the ex-
iftence of it has here been attefted by evidence.— The fame rule alfo
holds where a perfon purchafcs a female (lave on condition of her being
a virgin, and afterwardis dcfircs to return her, becaufe of her being a
womaa: for if^ in that cafe, another woman fhould examine into hec
condition, and then declare her to be a virgin, her evidence muft be
credited, as virginity is an entity, and the exiftence of it is here
proved by evidence:— or if^ oa.the contrary, (he declare her to be a
womani her muliebrity (which is a defeft) is eftablifhed in. virtue of
fuch declaration, and the plea of the purchafer holds good : whence
the feller is required to take an oath, that fuch defeft did not exift
• See voK I. p. 38a.
t That is, provided be fhew no proof of virility in the interim. (See vol: L p. 354*)
When
672 EVIDENCE. BookXXL
fleet, except- ^^*o liis cliaracler in fuch a manner as to give the oppofite party an
inf Jcln^ik!. opportunity to (com him ; becaufe the prophet (according to a tradi-
mijimmt or tion related by Omar) has (aid, " :/1I/ Mussulmans are jufi with re^
isiica. ^^ fpcil to evidence^ excepting fucb as have been punijhed fw' JIander i
and alfoy becaufe the probable charafter of all that profefs the religion
oiJJldm is an abftiuence from every thing prohibited by that religion;
and here it is neceflaiy to reft fatisfied with probability ^ as the attain-
ment of certainty is impra£Ucable. — In caies, however, inducing re«
taliatiou or puni(hment9 mtvc probaii/ity is not (uffident; and there*
fore a purgation of the witnefiEes muft be made; for punilhment and
retaliation are ca(es in which all poflible pretexts of prevention are to
be fought : it is therefore requifite that, in fuch cafes, the charader
of the witnefies be (hi£lly inveftigated :— moreover, doubt is preven-
tive in tho(e inftaoces.
^«>o^^^» If the defendant throw a reproach on the witnefies, it is in that
ileqoeiiioncd. Cafe incumbcnt on the Kdzee to inftitute an enquiry into their cha-
L required? '^^^l becau(e, in the (ame manner as it is probable that a ilii»^iKAM9f
abftains from ^fehood, as being a thing prohibited in the religion he
profe(res, fo al(b is it probable that one Mufulnum will not unjuftly
reproach another: — here, therefore, is a conflift between two proba-
bilities; and hence the nece(rity of the enquiry of the Ki%ee into the
charadler of the witnefles, that he may dilcover which of the proba-
bilities preponderates.— It is related as an opinion oiAboo Toofaf zvA
Mohammed^ that a (crutiny muft be made, with regard to. the wit-
nefles, both openly and privately, in all cafes whatever; (ince thede-
trree of the Kdzee reds upon proof, and proof refts upon the integrity
of the witnefles. BeGdes, an enquiry into the integrity of the wit-
nefles tends to preferve the decree of the Kdzee from annulment ; be*
caufe if he (hould pafs a decree upon the probable charaAer of the wit-
nefles, and their fallehcod (hould afterwards be difcovered, the faid
decree would be rendered nulL— Several have alleged that this dif<-
agreement between Haneefa and the two diiciples is founded on thr
diflTcrence
Chap. I. EVIDENCE. 673
dificrence of the times* In the prefent age, however, decrees are
pafled in this particular according to the do£trine of the two difciples.
— Kfecret purgation is made hyzKdzee writing a letter, privately, to Nature of a
a Moozieef or purgator, (that is, a perfbh whofe buflnefs it is to en- ^^
quire into the charaAers of others,) and defcribing to him the family
and countenances of the witneflesf and likewile their place of abode ;
and the purgator, in like manner, returning his anfwer privately to
the Kdzce^ left if it were known to the plaintiff, he might attempt
to injure him. In an 0^ purgation it is requifite that the Kazee udwatfem
fummon together the purgator and the witneffes, and hear the exa* P"*****®"*
mination himielf.*— During the firfl age (that is, in the time of the
prophet and his companions) an t^n purgation was pradlifed; but in
the prefent times a Jecret one is adopted, in order to avoid quarrels
and contentions between the purgator and the witneiles ; for it is re-
lated as an opinion oi Mobamtncd that an open purgation tends to {edi-
tion and contention. Some have faid that it is requiilte that the pur-
gator report the witnefs not only to beyi^, but ziiofreei for a (lave
may be jufl, but his teilimony is nevcrthelefs invalid. Others* have
faid that his report of the integrity of the witnefs is fufiicient ; for his
freedom is eAabliihed [in probability] by his abode in a Muffulmah coun-
try;— and this is approved.
It is to be obferved that, according to that doQrine which main- joaifictdpft
tains the necefiity of the Kdzee^ purgation of the witneflcsi whether ^*tlic ^^
the defendant challetige their probity or not,~the jufUiicatbn of them iicndani.
by the defendant is not of any weight ; in other words, if he declare
the witneflcs of the plaintiff to be upright men, yet his word is not
credited; and fuch is the doArine of the Zdhir Rawdyet^ from Jlboo
Toofaf and Mummed. It is alfo related, as their opinion, that the
juftification of the witneiles by the defendant is valid; under this con*
dttion, however, (according to Mobmrnned^ that there be alio an*
other juftilication; for he holds that two are always required, one
being in no cafe fufficient.-— The realbning on which the dodtrinctof
Vol. II. 4 R the
<74 EVIDENCE. BookXXL
the ZdAir Rawdyet proceeds in this particular, is that the defendant
i$» in the conception of the plaintiff and his witnefles, a liar, and his
denial of the claim unjuft and unfounded, but in which he neverthe*
lefi perfevcres. He is therefore incapable of appearing as a purgator,
fince a purgator muft be a perlbn of integrity, according to all. — ^This
proceeds on the fuppofition of the defendant having declared the wit-
nefles to be juft men, but that in the delivery of their teftimony they
had committed an error; or that they had been overpowered by for-
getfulnefs* If, however, he declare that " they have fpoken truth,'*
or that *< they are jufl men and true fpeakers,** this amounts to an
acknowledgment of the plaintiff's right, and the Kdaxe muft in fuch
cafe pafs a decree againft him,— *not on account of his purgation oftbc
viitneffis^ but of his ackncwitdgmenf.
0«f purgator One purgator is fufficient, and two are fuperfluous, according to
fiiiSccs. Haneefa and Jboo Toofaf. Mohammd^ on the contrary, maintains that
purgation is not valid unlefs performed by two. — ^A fimilar difagree-
ment fubfifts between them, with refpeft both to the meflcngcr who
goes to the purgator on the part of the KSzee^ and alio the interpreter
employed to explain and interpret the depoGtion of the witnefles. —
The argument oi Mohammed it^ that as the power of the KSzee to pa&
a decree is founded \ipon the evidence of the proUty of the witnefles,
and as the evidence of their probity is founded upon purgation, it fd-
lows that plurality is in this inftance requifite, in the fame manner as
probity^ — or as, in cafes inducing punifhment, it is required that
the witnefles be males. — The n%WKnt 6i Hanerfa znA ^boo Toofrf
is that purgation is not^coniidered in the nature of evidence; whence
neither the aflcmbly of the Kdztc^ nor the u(c of the ^\inStSbabi£t^
are required as conditions with regard to it. Befidet, the neoeflity of
a plunJity in evidence is a mere niatter of rtBgion^ — in other words,
is founded on a paflagc in the Koran, in oppofition to anabgy ; ffx
the truth of any aiTertion obtains an afcendancy from the dedaration
of one juft perfon, fo far as relates to praftice, as b evident from this
c circumftance,
)
Cha?- I. EVIDENCE. 67s
circumfiancct that many of the traditionary precepts which it b ne«
ceflary to follow, have been delivered by one man ;) — ^and as the ne-
cei&ty of a plurality in evidence is contrary to analogy, the eftablifli*
ment of fuch necefCty in purgation, by inference from that rule,
would be abfurd.
As the qualifications requifite to a witnefs are not required in a kjbvi uof
purgator, a (lave b capable of being a purgator in a fecret purgation. uKin^e!^
In an open purgation, however, the purgator mud, according to all our ^** P*^^*
dolors, -be pofleiled of the qualifications neceifary to a witneis, be-
caufe of what is recorded by Kbajqf^ that ^* an open purgation is re«
" ftridled to the alTembly of the jKifz^^."— Lawyers have obferved,
alfo, that in the purgation of witnefies to whoredom four purgators
are neceflSuy, according to Mohammed.
SECTION.
The things which witnefies retain, and bear teftimony of, are of Bvidenct It
two kinds.— The firfl are thofe which produce effed in themfdvcs; 1^2 S£
fuch as fale, acknowledgment, ufurpation, murder, and the fentence •^l^^f*
of a judge; in all of which the efTedk refults from the things them- **** '
(elves; and confequently, whenever a perfon hears or fees any thing
of importance relating to thefe matters, he may lawfully give evi*
dence of it, without its being demanded from him; becaufe in thefe
cafes, immediately upon his hearing or feeing, he becomes acquainted
with a circumfhnce which occaiions efiefl in itfelf, and there b
therefore no need of fuch evidence being demanded from him.— -In
fuch cafe, ^o, it b requifite that be defiver hb teftimony thus, ^^ I
•• give evidence that a certam perfon bought, &€•** and not, •* cvi*
4 R 2 ** deace
6j6 EVIDENCE. Book XXL
*^ dence has been demanded from me, &c/' becaufe this latter mode
of delivery is falfe. If, however, a perfon from without a door, or
from behind a curtain, hear any thing fpoken by another that is
within, in that cafe he is not entitled to give evidence of the fame;
and if he fliould atteft it, the K4zee muft not accept it, becaule it is
illegal, (ince, as voices are often fimilar, they cannot be didinguiflied
with certainty. But if, having firft entered into the houfe, he dif-
cover that there is only one perfon within, and haying then retired,
and fat without the door, he hear that perlbn* make* an acknowledg-
ment, he may then lawfully atteft the fame, becaufe in fuch cafe he
"gA^tke acquires certain knowledge.— The fecond kind of things to which
whick itftt evidence relates, are thofe which do not occafion cffeCL in themfelves;
^^ttce. fuch as /^/mtiry *, which does not occaiion efTed in itfelf ; becaufe,
as it is merely if^ormatm^ it admits the fuppofition of being either
true or falfe; and fuch things as are doubtful are not decifive proof.—
Upon teftimony being given, therefore, the hearer does not immedi-
ately know that the right is proved; and confequently, if one periba
hear another give evidence of fomething, he is not empowered to give
evidence of the fame, unlefs the witnefs defire him to atteft his evi-
dence; .becaufe evidence does not occafion efFe& in itfelf, nor until it
be removed to the aflembly of the Kdzee. — Befides, as the atteftation
of the evidence of another is an overt aft with refpeft to that other,
it is requiiite that the other previoufly appoint this pcrfbn his deputy ;
and in the cafe in queftion this is not fuppofed. — In the fame manner,
alfo, if a perfon hear another defire a tAirJ perfon to atteft his evi-
dence, it is not lawful for him .in fuch cafe to give evidence of the
fame, becaufe the original witnefs appobted anot/^r^ and not bim^ his
deputy for that purpofe.
Thcfignatm If a perfon fee his own fignature to a bill of fale, or the like, he
J^jJ^^ijJ muft not, merely on account of the fight of his fignature, atteft it,
• Meaning teftimonjr to evidence given by anodier.
unlefi
Chap. I. EVIDENCE. 677
unlefs he otherwife recolle£t to have witnefled the fatd bill ; fince ttBlefichewiu
hand writings are often finnilan— Some have iaid that this is the doc- the ctraim-
trine o(Haneefa\ but that the two difciples arc of a different opinion. JjJ^**"'
—Others, again, have faid that all are agreed in its being unlawful to
give the attefhtion merely on the (ight of the fignature ; and that the
only cafe of this kind in which there is a difagreement is that with
refpeil XozKdzee\ for if he fliould difeovcr, in his ZVtcfm, or records^
the evidence of any one, or a decree of his own, he may, in fuch cafe,
(according to the two difciples) pafs a decree agreeably thereto, not*
withllanding he have forgot the circumftahce ; becaufe the records of
the Kazee^ being kept under his feal, are therefore fecured againft
alterations, and confequently afford certain knowledge. — It is other-
wife with refpecl to bills of lale or the like, becaufe thefe, as being
kept in the hands of others, are not fecured againft alterations. — ^lii
the fame manner, alfo, if aperfon recoUefl the place in which his evi-
dence had been taken, without remembering the affair to which it re-
lated, it is the fame as his feeing his fignature without remembering
his fubfcription of it, and therefore he is not permitted to atteft it:-—
and the fame rule obtains where people in whom he places credit lay
to him, *< you and we did formerly jointly atteft fuch particular
«* matter."
It is not lawful for a perfon to give evidence to fuch things as be Evidence
has not aftually fecn, excepting in the cafes of birth, <? th, marrbge, ^^^
cohabitation, and the jurifdiction of a Kizce^ to all of which he may ir«o/spr* er-
lawfully bear teftimony on creditable bearfay.^Tliys proceeds upon a ^Smmal»U
favourable conftruftion.— Analogy would fuggeft that it is not lawful J*^* 'Jnl'rf
for him to give evidence in thofe cafes alfo; becaufe evidence is ly^w:
founded entirely on fight, from which knowledge is derived j and as
no certain knowledge can be acquired without (i^t, it follows that
evidence, in the cafes above excepted, is not valid unlefs founded upon
fight.— The rcafon for a more favourable conftruftion, in this paiticuiari
is that thefe events are of fuch a nature as admit the privacy only of a
few:
678 EVIDENCE. Book XXL
few:-— thus birth (for iuftance) is an event at which none is prefcnt
but the midwife; the authority of the Kizee is founded on the ap*
pointment of the Sultan^ which is.ieen only by the Vtzicr^ or at moft a
few others; marriages and deaths are feen by but few; and cohabita-
tion by none. All thefe, however, arc afts from which originate
many important concerns. If, therefore, the reality of theie things
were not admitted upon hearfay evidence, many mconveniences would
refult: in oppofition to cafes oifak^ or the like, where privacy is not
required.*-It is to be obferved that it is requifite, in thefe cafes, that
the information have been received from two juft men, or from one
juft man and two women*^ Some have advanced that in cafes of death
the information of one man or one woman is fufficient, becauie death
is not feen by many, fince as it occafions horror the (ight of it is
avoided.
ttditmvft When aperfbn, in any of the above cafes, ^ves evidence from
aa 4/iiMti cre(Utable hearlay, it is requifite that he give it in an at/c/ute manner,
by faying, for infbnce, ^^ I bear teflimony that A. is the fon of B/*
and not, ** I bear teflimony fo and 1o^ btcaufc I ba%:e heard //,"—
for in that cafe the Kizee cannot accept it; — tn the fame manner as if
a perfbn, having feen a thing in the hands of A. were to fey, «< This
** thing is the property of A.*' in which cafe his teflimony is valid:
but if he fhould flate that *^ he gives evidence hecaufe he has feen the
** thing in the fojfejfton of Jl.^^ the KSzee could not accept his tefli-
mony. — ^So alfo, if a perfon fee another fitting in the court of juflice,
decidmg in a fuir between plaintiff and defendant, it is lawful for him to
^vc evidence that " that perfon was a JCi«rr;"— or, if a perfbn fee a
man and woman dwelling in the fame houfe, and conducing them-
(elves towards one another in the manner of hufband and wife, he may
hwfuDy give evidence of their being hufband and wife; in the fame
manner as it is lawful for a perfon who fees a melon in the hand of
another to give evidence that it is the property of that perfon.
If
Chap. 1. EVIDENCE. 679
Ira perfon (ay that he was prefent at the burial of another, or that Evidence t*
he had read the funeral fervice over him, this amounts to the fame as l^tST'**'
an a£lual fight of the death, infomuch that if he (hould explain to the *^"** ^
Kdzee the principle on which he gives his evidence, it will ftill be hii dtmh.
valid.
What is above advanced, that ^^ it is not lawful for a perfon to
*' give evidence to fuch things as he has not afluaily feen, excepting
^* in the cafes of birth, death, marriage, cohabiution, andthejurif*
** diction of a /iTifs^r,** is taken from Kadocree; and from thefe par-
ticular exceptions it may be inferred that bearfay evidence is unlaw-
ful in vitxy other in(hince, fuch as Wtlla^ charitable appropriations,
and fo forth. — It is indeed related, as the lad opinion of Abf^o Toofaf^
that evidence from hearfay is lawful in a cafe of ffll/a; becaufe ffi/Ia
is equivalent to relation by confanguinity, as the prophet has £ud
•* WiLLA is a conneciion Ftke ctmfanguinity^^ — It is allp related, as
the opinion of Mohammed^ that hearlay evidence b lawful in a cafe of
appropriation ; for as appropriation continues to operate for a long pe-
riod of time, the laws with refped to it would be rendered null if
hearfay evidence were not admitted to prove it. — Our doAors, how-
ever, argue that WiUa is founded upon a relinquishment of right of
property; and as, m bearing evidence to that^ adual fight is required,
it follows that it is in the fame manner required with reipedfc to a mat-
ter derived therefrom, namely, /^//a.— With reipedl to charitable ap-
propriations, on the contrary, hearlay evidence muft be admitted lb
far as regards the appropriation itfelf, (fuch as where the witnefs fiiys,
** I atteft this to be a waif:) but it is not admitted with refped to
any conditional reftridlions impofed by the appropriator ; for al-
though the appropriation itfelf be notorious, yet the conditions of it
are not fo.
If a perfon fee any article, (excepting an adult male or female a rlfhc •r
flave,) in the hands of another, he may in fuch cafe lawfully atteft ^SPISIm!
its
68o EVIDENCE. Book XXL
from fecinf tts being the property of that other, becaufe pofc/lion' argues pro-
^ ^^m'" P^'^Yf ^"^c^ *^ ^^1 caufcs of property, fuch 2S purcbafe^ faU^ or the
of another: [jj^^^ poffcffion is the argument of its exiftencc. — For tnOauce; if a
perfon fell any thing, his pofleflion is an argument oi the legality of
the fale; and in the fame manner, alfo, the right of property is efta-
blifhed in a purchafe from the poflefTion of the feller, and the right of
property in an heir, from the pofleliion of him from wham he in-
herits.— ^Hence, in giving evidence of a thing being the property of
another, it is fufficient to have feen it in his poflefllon. — It is recorded
from Abo^ ^oofaf^ that bcfides x}\cjtght of the polTeliion, it is re^uitite
that the witnefs verily believe the article to be the property of the
pofleflbr, infbmuch that if he do not really think lb he cannot law-
fully atteft on the pofleflbr's behalf. — Several of our do<£tors alio re-
mark that this explanation applies to the opinion of Mohammed^ above
related, rcfpcfting the legality of attcfting marriage, birth, and coha-
bitation on hearfay ;— that is, that it is lawful for a perfoti to atteft
any ofthele incidents upon hearfay, provided he bclicve^t in his own
m'md, but not otherwife. — Sbt^ei has (aid that poflcffion, together
with traafailion*, argues property ; (and many of the Haneefiie doc-
tors are alfo of this opinion ;) becaufe poffcffion being of two kinds,
namely^ either in virtue of truft or of right of property, does not ar-
gue right of property unlefs when united with the performance of
ads. — Our doctors, on the other hand, argue that tranfa^tion is al(b
of two kinds; one, in virtue of delegation, and the other in virtue of
original authority ; — ^and hence the junction of traniadion to pofieflioa
leaves Aill a doubt in regard to the property.— In Ihort, if a fr§iaPic
argument be adopted, pofleffion is then fufficient ; but if a certain one
be required, pofleffion, even when joined to tran(a£Hon, could not be
fufficient. — It is to be obferved that the cafe here treated of admits of
four ftatements. L Where a perfon fees both the proprietor aud the
• Arab. Tifarif\ meaning (in this pbee) anj aft «f oMllery perforuHid wilh le^edt
to the propertj m qucftion, fuch as Itnin^ ic out tv ittfir, for inflance..
propcny,
Chap. I. EVIDENCE. 68i
property, and is acquainted with both,— that i§, with tiie countenance
and the family of the proprietor, and with the boundaries of the pro-
perty, which he fees him poflcfs without ftrife ; and afterwards fees
the fame thing in the poffefiion of another ; and the hrft pr»?»prietor ap-
pears to claim it ;— in which cafe it is lawful for him to give evidence
of its being the property of the flrft ^trion^ becaufe ofhis having lecn it
in his poflefi>on. II. Where he fees the property, and its limits^ but
not the proprietor ; — and here alfo it is lawful for him to give evidence
of the property, (upon a favourable conftruftionofthe LAw)bccaulc
the proprietor is known, fo far as regards Wis Jam// ^ from hearlay. —
III. Where he neither fees the proprietor nor the property; — and,
IV. Where he (ccs the proprietor but not the property ; in botk of
which cafes it is unlawful to give evidence with regard to the right
of property.
If a perfon fee a (lave, male or female, in the pofTeflion of another, a«a Ae right
and know the faid perfon to be a flave, he may lawfully give evidence fn ^Ju^
to fuch flave being the property of that other; — for a flave not being "Jfi^^a^J^
his own mafler, and of coniequence not entitled to go where he the fime
pleafes, is apparently the property of that perfon in whofe hands he
remains. So alfo, if he fliould not know the per(bn feen in the oof«
fefiion of another to be a flave, and being an infant, it fliould be inca«
pable of explaining its own condition, he may in that cafe lawfully
give evidence of its being the property of the poflTeflbr; for an infant
is not its own mafter. — ^But if the perfon feen be arrived at the age of
maturity, — that is to fay, be capable of explaining his condition, — and
he fliould not know whether he is a flave or not, then it is not lawful
to give evidence of his being the property of the poflefibr, floiply oa
the flght of the pofleflion. — This is the reafon of the exception, in the
preceding cafe, of a flave arrived at the age of maturity; and the
ground of it is that perlbns arrived at the age of maturity are in a
manner in their own pofleflion ; and therefore the poflcflion of another,
v'hich indicates the right of property of that other, is not to be dtf-
Vol- IL 4 S covered
682 EVIDENCE. Book XXI.
covered from the fimplc fight. — It is related as an opinion of Hanetfa^
that even in this cafe evidence to the right of property may lawfully
be given: but what has been before related is die moft* authentic
do£trine.
CH APT. II.
Of the Acceptance and RejeSion of Evidence.
Tr*^/w"^^* The evidence of a blind man is not admifliblc. — Ziffer maintains
is inadimfi- that the cVidencc of a blind man is admilTible with rcfpect to matters
^* in which hearfay prevails ; (and there is alTo one report of the doArine
of Haneefa to the fime tSeOi ;) becaufe in fuch matters hearing only
is required, and in the bearing of a blind man there is no defect. —
Atoo l^oofaf and Shi^ei ha^e faid that the evidence of a blind man in
thefe matters is lawful, provided he was poilefled of fight at the time
of their occurrence; for by means of that he acquires a certain know-
ledge, which he is afterwards, notwithfbnding his want of fight, ca«
pable of communicating, as that depends entirely on the tongue,
which in a blind man is not defective ; and it is in his power to (hew
his knowledge of the perfbn with regard to whom he gives the evi«
dence, by a defcription of his birth and family. — Our doctors, on the
other hand, argue that in the delivery of evidence there is a necefilty
to diilinguiHi between the perfons for and againft whom it is given ;
^d a blind man is incapable of doing this otherwife than by the voice ;
and this is attended with a doubt ; which may be avoided, • by the
party producing a witnefs pofleflcd of fight. — ^With refpect to the af-
fertion of Sbafii and jlbco Tolftf^ that *' it is in his power to (hew
^ his knowledge of the perfou with regard to whom he gives the
5 •* evidence
Chap. II. EVIDENCE. 683
^* evidence by a defcription of his birth and fiimily/' it may be re-
plied that this mode has been inftituted for a defiiutbn of the abfent^
not of the prefent. — In fliort, in the fame manner as the evidence of a
blind man is inadmiiiible in cafes relative to retaliation or punilh-
mentSy fb alfo is it inadniiffible in all other cafes whatever*
If a perfon, having given evidence^ (hould afterwards become blind ^^ if « p«f *
previous to the palTing of the decree, in that cafe (according to Haneefa d«icr!^id[^*
and Mohammed,) it is not lawful for the Kdzee to pafs a decree there- J 2S^**Si
upon; for the exiftence of the competency of the witnefles at tie time notUTttcopoo
ffffalfag the decree is a neceflary condition, as the validity of the evi-
dence, at that time, conftitutes the proof; and in the cafe here fup-
pofed the evidence has at that period becontie oulK This cafe is there-
fore the fame as if a witnefs, after having given evidence, (hould
either become infane, dumb, or uifjuft, in any of which cafes the
K&tee could not pafs a decree upon the evidence ib given.— It is other-
wife where the witneffes, having given their evidence, either difappear
or die; for in that cafe the Kazee may lawfully pals a decree upon it {
becaufe the competency of evidence is not annulled, but rather con-
cluded, and rendered complete, by death} and abfence does not deftroy
this competency.
The teftimony of any perfon who is property i^^'CcaU is to fay, a Tkeendeact
flave, male or female,— is not admiflible; becaufe teftimony is of an noTfefll
authoritative nature ; and as a flave iias no authority over his own ^*
perfon, it follows that he can have no authority over othen^ a
fortiori.
Th& teftimony of a perfon that has been punifhed for dander is orof a/ttf
inadmiffiUe, even though he fhould afterwards have repented; becaufe ^'^*
God has (aid, in the Koran^ — ** But as to thos£ who accuse
^* MAHRIBD persons OF WHOREDOM, ARD PRODUCE NOT FOUR
•* WITlCESSEi OF THE FACT, SCOUROE THEM WITH FOURSCORE
4 S 2 «« 8TRIPES1
ASi EVIDENCE. Book XXI-
'* STRIPES, AKD RECEIVE JfOT THEIR TISTIMOKY FOR EVER;
'* FOR SUCH ARE IKFAMOVS PREVARICATORS, — EXCEPTING THOSB
" WHO SHALL AFTERWARDS REPENT." — ^Thc rcjcAion of his evi-
dence, moreover, is included as a part of the puniHiment pre(cribed
for the crime, as this tends to prevent the commiflioa of it in future ;
and as the rejeAion of his evidence is a part of the punifliment, this
ejfieft muft evidently remain after his repentance, on the fame princi-
ple us the puniflimcnt it&lf is not remitted although he repent. It is
orfierwife with ref|>ea to^a-perfon {Mmifiied foe any oilwr crime; for
the cvidMce of Awh a p«ri^ k admiiuble after repentance, fince the
rejection of it, in regard to biwj proceeded from the ftigma attached to
his oftence, which is done away hy repentance. — According to Sbafn
the evidence of a perfbc punifhed for flaader is admiuible, provided he
have afterwards repented, bccaufc Gvo, in enjoining the reje^ien of
the evidence of hich, has particularly excepted penitents. — Our doctors,
on the other hand, argue chat the exception in the divine ordinance
relates to tliat part of it which declares llandcrcrs to be hifauKKs fre^
vark\jtorsy and not to that jMrt which declares dicm to be iaccmpc-
Mit as witneires« Penitence, therefore, removes the Uigma from the
chftrtctcr of fuch a perfon, but does net reftorc his competency to give
evidence.
bttt aa infdtl If an infidel, who had fuffered puniHimcnt icv fjandcr, (hould af-
cwm ki*""^ terwards become a Muffiilman^ his evidence is then admililble ; for al-
competcnc]r though, on account of the faid puniflvmcnt, he had loft the degree in
■fwnemWac- which hewas before qualified to give evidence, (that is, in all matters
io^ihcuith. j|^2j related to his own feci.) yet by his converfion ro the MuJfulmM
faith he acquires a new competency in regard to evidence, (liamely,
competency to give evidence relative to }AuJfuhn.n.s^^ which he did
not poflels before, and which is not alTcftcd by any matter that hap-
pened prior to the circumftance which grxve birth to it. — It is cthcr-
wife with refpccl to a flave, who, having fuftcrcd punifhmcjit for
Hander, after wards becomes free ; for his teftimony is not admiffiWc
after
Ghap. II. EVIDENCE. 685
after emancipation;^ becaufe in his former condition of (lavery he did
not poffefs, in any degree, ability to give evidence, and confcquently
the punilhment ivas incomplete, fince it was impoi&ble to fubjcft him
to any greater degree of difcredit than what was before impofcd on
him : the credit, therefore, >vhich he would otherwife have acquired
afterwards in virtue of his emancipation, is taken from him in order
to complete the preicribed puniflunent.
Testimony in favour ofaibh. or grandibn, or in fiivouir of a fa- Evidmce is
ther or. grandfather, is not admi(!iUe; becaufe the prophet has fo or* in f«voor of
daiued.— Beiides, as there is a kind of communion of benefits between ^jt^-^'^tiie
thefe degrees of kindred, it follows that their teftimony in matters ^gwof/*-
relative to each other is in feme degree a teftiibony in\&rvour of them* "^
i^ves, and is therefore ItaUif to fufpicion.
The prophet has faid,^' We arc not A) credit the evidence tf a nor between
*< wife concerning her bujbandj or of a hujband concerning his wife*\ and^S^'a
** or of ajlave concerning his mafleri or of a tnajler concerning his V^%^
^^ Jhruci or^ i^(y% ^f ^ i6/Wr concerning bis hire/ing.-^'Xhc author an-^/r/rand
^ his biriltng.
• This doSrihe of the inadmiAbtlity of the evidence of huflxuid and wife in favour of
each other prevails only amongft the Siuih^ [the followers of Omar^] and has given rile to
much contention with the ShiytiSy [ths followers of >/i>/]» who maintain the oppoAte doc-
trine.—The origin of their difagreement on this octafion it thus related.— -The prophet
in the courfe of his wars having been prefented with the viUage of Faithi by fome ChnT-
tians, who faw the impoJibility of refifting his power, determined to have divided *t
amongft his companions, as was his ufual practice in regard to the fpoils u^e in ar«
He was afterwards, however, induced to give it to his daughter Fatima^ in confequencf
of a revehtion he received from heaven, ei^oiiiing him not to give ou of ffis c >
family what had been freely conferred upon him.— After his death it was fixed up , b/
his fucceflor iAfo Biini and when Eathna chimed i: in canfequence of th gif 'sf h r
lather, and produced her hufband jila^ -znd her two fons, as wttnefles, her chba was re
jeAed by //Am Bfkit^ on the groviids of the teftimony of relations in that degree having
been declared inadmiflible by the prophet. Thi« tradition, thus quoted by j/pto BiUr^ has
ever fmce amongd the So9nh occafioned the inaJmifllbility of the evidence of hufbapd at i
wife
686 EVIDENCE. Book XXL
^ of this work obfcrves that by the term birer \/ijeer\ as ufcd ia this
place, is to be underftood (according to the explanation of the Lwyers)
a fcleft fcholar who confidcrs an injury to his teacher as an injury to
himfelf. — Others have faid that it is underftood to mean a perfon who
lets out any thing by leafe for a month or a year; for as, at the time
of giving evidence, he b entitled to the rent, in return for the ufufrufk
enjoyed by the other, a fufpicion arifes of his having conftituted this
perfon his tenant merely with a view to procure his evidence. — ^With
refpeft to the evidence of ahufband and wife concerning each other,
Sbrfii maintains that it is admiffiUe; becaufe the property of each b
di(lin& and feparare; and alfo becauie di(tin& feizins are made, by
each, of their reip^ive property; whence it is that retaliation is ex-
ecttted upon dther for the murther of the other, — and alfo, that either
may be imprifoned for a debt due to the other. — Betides, the benefit
which they i&utually derive from each other*s property is of no account,
becaufe the exiftence of fuch benefit b of an involved nature*;— in
the iame manner as the evidence of a creditor in favour of hb indi-
gent debtor b admiiftble, notwithftanding he derive a benefit from
it, as this benefit is of )ui mvohed nature.-— The arguments of our
dodors upon this point are twofold. First » the traditionary precept
of the prophet above quoted. Secondly, the benefit which, from
cuftom, the hufband and wife derive from the property of each other,
which occafions their teflimony in favour of each other to be, in a
manner, teftimony in favour oitbemfehts^ and confequently liable to
fufpicion. — ^It is otherwife with refpeA to the teftimony of a creditor
in fiivour of hb indigent debtor, becaufe he has no power over the
>Mfe !q 6vo«r of each other. The Sklnm^ howc\'er, (whorfoUmr acomfafjdoOriiie)
msMttiiii that this pretended precept of the prophet was purpolUy fergedl by the JChi^^ to
^AmA Fmimf of her right j and in fitpport of this opinion they argue that if fiidi apre-
cepc had cxifted, it could not have been unknown lo Jkii and chat if he bad katHm
of it^ he never would in fuch cafe have appeared aa a witnefe in fcvour of his wife.
• That is to (17, ii inter woren widi, and neceflaril j arifes from, the pvticular circuoi*
ftanccs of their lelative fituation.
property
Chap. II. EVIDENCE. , ^87
property of the debtor, whereas a hulbaod and wife have fuch power
from ufage and cuilom.
The teftimonj of a mafter in favour of his flave is not admiflibte; The teSiBo.
becaufe of the tradition above quoted; and alfo becaufe, if the flave ^n^b^
be not indebted to any perfon, fuch teftimony is in ewry refpe£l in ^^^J^
favour of himfelf ;<— or iff on the other hand, he be indebted, ftill the flare 1
teiHmony of the mafter is in fime refpeft in £ivour of himfelf, as
the matter remains in fufpence; for if the mafter (hould choofe
to pay the debts, the teftimony would be completely rdative to him-
{elf, whereas it would not be (b in any degree in caie he fliould per-
mit the flave to be fold in liquidation of the debt; — and as it is not
known which mode he may follow, the teftimony is therefore confi*
dered to be in (bme refpeft relative to himfelf. — ^It is to be obferved
that the evidence of a mafter in favour of \x\&MQkAtib is not admiffiUe,
for the reafon here ftated.
The teftimony of one partner in favour of another, in a matter nor of one
relative to thdr joint property, is not admiflihle; becaufe it is in fomc 5wof*aiSr
degree in fiivour oibimfelf. — ^Thc teftimony, however, of partners, in «J»«r(«iidirc
favour of each other, in matters not relating to their joint property, toncm^
is admiflible, becaufe in it there is no room for fufpicion.
Testimony in £sivour of a braiber or an rnick is admiflihle, Teftiomj h
becaufe the property and the immunities of thefe dafles of rcla- j^^^lJ^j^JJ.
tions are feparate, and each has no power over that of the other. » admitted.
The teftimony of women that lament or fing is not admiflihle, Tlie teftimo.
becaufe they are guilty of forbidden aftions, inafinuch as the prophet SlfibkV^'
has prohibited thefe two fpecies of noife. — (It is to be obferved that F«biicmoani.
this cafe alludes to a woman who laments for the adverfity oi others^ enor fiajenp
not for her erra, and who hires herfdf out for that purpofe.)
The
688 EVIDENCE. Book XXI.
orof commott The tcftiiTiony of a pcrfon who is continuallj intoxicated is inad-
orof/tf/rcAw, tniiiiblc, becaufe of his comaitflioa of a prohibited aft. — ^In the £icne
^^' manner, alfo, the teftimonj of a peripn who amufes liimfelf with
birds, fuch as pigeons or hawks, is inadmifliUe ; becaufc fiieh ttnufe-
mcnt engenders forgetfulnefs ; and alfo becaufe, an the pnftice of it,
he fcts the nudities of ftrange women, he having occafion to fit on
the top of his houfe to fly thefe birds.— In fome copies, inftead of the
amufement of ^eyoor or birds, that o{7amboor^^ or muiical inftru-
ments, is written, which alludes to public fingers; and the teftimon/
of a public finger is not adnaiflible, becaufe he is the occafion of aflem*
bling a number of people to commit a prohibited aftion-f.
orofatrocl- Thk tcftimony of a perfon who has committed a great crime,
fuch as induces punilhment, is not admifiible, becauie in eonicqucnce
of fuch crime be is un/u/t
cf :oni^- The teAimony of a perfon who goes naked into the public bath
^ ' is inadmiffible, becaufe of his committing a prohibited adion, in the
expofure of his nakednefs.
orof ufurcrs/ The tcftimony of a perfon who receives ufury is inadmiilible; —
or game «>. ^^^ ^^^ alfo, of one who plays for a ftake at dice, or chefs,— becaufe
gam'mg in that manner is ranked in the number of grcsX crimes;— and
iu the fame manner, alfo, the evidence of a perfon who omits his
prayers, from an attention to thefe games, is not admifliUe. — It is to
be obferved, however, that fimple playing at chefs without a ftake is
• In the Arabic and Perfian, the woitls Ttyi^ and Tamhicr arc written exaaijr fimilar;
and as they can only be diftinguiOied from each other by the piofier pofition cf the
diacritical points, they are therefore very iiabk to be coafbuadcd kj Ac frequent omtSon
of thefe points,
t NameTy, n/lfmni to mu/u,
6 not
Chaf.II. evidence- 689
not deftru^ve of credk* fince fuch play does not induce a vant of
integrity, becaufe all our Imhts are not agreed in its illegality, Mdlik
and Sbafei having declared it to be lawful.— It is recorded in tho
Mobfoot^ that the evidence of an ufurer is snadmiiTible only in cafe
of his being fo in a notonoui degree ; becaufe mankind often make
invalid coutrads ; and thefe are, in fome degree, ufurious.
Thx evidence of a perfon guilty of bafe and low aftions, fuch orofperfont
as making water or eating his yiduals on the 'high road, is not Jewum/*'
admiflible; becaufe where a man is not reAraincd, by a fenfe of
flitmc, from fuch actions as thefe, he cxpofes himfelf to a fuipicion
that he wiU not refrain from falfehood.
Thx cTtdMcc of a peribn who ope^jr knrdigiw againft the eom- or ofywr-
panions of the prophet and their difeiples Is not admiifible, becaulb ^^Vw
of his apparent want of integrity.— It is otherwift, however, where «*^' *^-
a per£>n conceals his fentiments in regard to (hem, becaufe in fuch
cafe the want of integrity is not apparent.
The evidence of the fe£t of Hifva* (that is, fuch as are not Soonis) ine evidence
isadmiflible; excepting, however, the tribe of Aj&r/a^w, whofe cvi- ^/^tr/^d^
dence is inadmiffiblc, for reaibns that will be hereafter explained. — othcrhcrciics,
Sbafei maintains that the evidence of no tribe whatever of the fed of burnot ihit
Hawa is admiflible, becaufe the heterodox tenets they profefs argue ^[^^J^]^^
the higheft degree of depravity.— Our dodors,. on the other hand,
argue that although their tenets be in reality wrong, yet their ad-
herence to them implies probity, fmce they have bw.^a led to embraco
^ Anglice, the mr\ a deriCve appellatton pven bj die S9wis to ^tSbiyat.^Hawa^
aifo, it ufed 10 exprtft the fenfual peAoni, whence the Unn /bU Haw* fignifies fenfualifth
Vol, IL T them
ho EVIDENCE. Book XXL
them from an opinion of their being right ; and there i$, moreover,
reafbn to think that they will abfbin from falfehood, becaufe it ss
prohibited in every religion. Hence the cafe is the fame as if a perfbn
ihould eat of an anim^ which had not been flain according to the
prefcribed form oiZabbabj becauie of its bdng lawful amongft his &&.
It is otherwife. where the bafenels proceeds from the affions^ not from
the Mief. — ^With refped to the fed x^Kbeiabim^ it is to be obferved
that they are in a high degree heretics; and amongft them it is hwfui
to bear pofitive teftimony to a circumftance on the grounds of another
having fwom it to them* Some have faid that it is an incumbent duty
upon that feft to give evidence in &vour of each other^ whence
their teflimony is not irec from fuipicion.
ZflMiif/ nay The teftimony of Zi)wnr^j with refpe£fc to each other is admir-
cmiagcach iible, notwithftanding they be of different religions.-— A£<//i and
Sbafei have iaid that their evidence is abfblutely inadmiffible, becaufe,
as infidels are unjuft *, it is requifite to be flow in bdieving any thing
they may advance, God having faid (in the Koran) ^^ When an
^* UNJUST PERSON TELLS YOU ANT THING, B£ SLOW IN BELIEVING
*^ him;^* — whence it is that the evidence of an infidel is not admitted
concerning a Mujfulnuin ; and confequently, that an infidel flands (in
this particular) in the fame predicament with an apoflate. — The ar-
guments of our do£l:ors upon this point are twofold.— First, it is re*
Uted of the prophet, that he permitted and held lawful the teflimony
of fbme CbriJUans concerning others of their fed.-— ^Secondly, an
infidel having power over himfelf, and his minor children, is on that
account qualified to be a witnefs with regard to his own fed ; and the
depravity which proceeds from his faith is not defhru&ive of this qua-
lification, becaufe he is fuppofed to abftain from every thing prohi-
bited in his own religion, and falfehood is piohil»ted in every religion.
It is otherwife with reipeft to an apofbte, as he pofiefles no power,
• Arab. FJjfiki mauitD^ iatUspbcc, degitur^ ot itfrm^d.
either
Ckap.il evidence. 691
cither over his own pcrfon, or over that of another; and it is a]fo
othcrwife with refpeft to a Zimnee in relation to a Mujfubnan^ becaufe
a Zimmee has no power over the perfon of a Mujfulman. — Belides, a
Zunnue lazy be fuipefted of inventing fidfehoods againft a Muffubnan^
from the hatred he bears to him on account of the fuperiority of the
Muffiilmans over him.
Objection. — In the fame manner as there fubfifts an enmitjr
between Mujfubnans and Zitnnucs^ fo aUb is there an enmity between
the followers of other religions, fuch as the Jews^ the Cbriftlans^ and
the Magians: it would follow, therefore, that amongft thefe the
teftimony of thofe of one religion caimot be admitted with relation
to others of a different religion ; — whereas it hath been declared ad-
miflible.
Reply. — ^Although the religions of thefe be different, yet none of
them being under fubje£tion to another, fb as to engender reciprocal
hatred, there is no caufe to fuiped that they will invent fididioods
againft each other.
The teftimony of an infidd Mooftdnun with relation to a Zhnmee is a MOq/iMm
not admifnble, becaule he has no power over the peribn of a Zhmmif ^^^^gffi
as the latter is a fixed refident in the Muffubnan territory. Thc.evi^
denccof a Zhnmee^ however, is admiflible with refpeA to an infidel uyKfti^
Mooftdmin^ in the fame manner as the evidence oiMuJfulmans with re- ^y^f?y *
lation to them is valid.
The teflimony of one Mooftdmln is admiflible with refped to an- „
other Mooftdmin^ provided he be of the lame country. If, however, JJ^^Sm^
they be of different countries (fuch as a native of RMiffia and of Ijtrhy) >air^.
their teftimonies with re(pe& to each other are not admiffiUe; becaufe of th«>If
this difference precludes the operation of their power over each other; ^""^
whence it' is that they cannot inherit of each other.
4 T a The
69X EVIDEKCl. Book XXL
Theteftimpny The teftiHimy of him wbofc virtues exceed his vices, and who
of any oae*' « not guilty of great crimes, is admiflible, notwithftanding he may
^« ^*ndc»M- <>ccafxonally be guilty of venial crimes. — ^What is here advanced is an
explanation of the degree of integrity to which regard is paid in bear-
ing evidence: and this explanation is approved; for Innocence with
rcfpcft to great crimes, and a preponderance of virtue over vice, muft
neceflarily be deemed fufident, on this principle, that if any occa-
fional commiflion of fmaller crimes were deftrudive of teftimony , the
door of evidence would be (hut, whilft the prefervation of the rights
of mankind requires that it (hould be kept opeiu
aod of foch 'Yhe teftimony of on AckKf (that is, of one who has omitted cir-
as remain un« ^ /• t i /- Vr i -
clrcumcifed cumciuon on account of old age, or for lome other lumcient rea(bn)
tifi2)k wifci is admiifible, becaufe the omiifion of this ceremony is not dcftruftive
of juftice;— excepting where it arifcs from a contempt of religion, or
of the authority of the oral law by which it is enjoined, for in that cafe
integrity no longer remains.
or of aa /« The teftimony of an eunuch is admiflible, becaufe 0$fuar accepted
"'^^' the teftimony oiAUda^ who was an eunuch ; and aHb, becaufe he has
been deprived of one of his members by violence^ and therefore ftands
in the fame predicament with one who has been mutilated.
orofaii^^r/; The tcftimony of a haHari is valid, becaufe he is iniioceat with
refpccl to the immorality of his parents. Imim Mdlik maintains that
the teftimony of a bafbrd is not to be admitted with re(pe£fc to nvbore-
^flf, as it may naturally be fuppofed he wiihes as many otliers as pof-
fible reduced to the faoie level with himfelf, and his teftknoiiy in a
matter of this kind is therefore liable to fufpicion— Our dofttrs, how-
ever, argue that the prefent queftion relates merely to the point of /«-
tegrity\ and if a baftard be a juft man, there is ju»'reafoa to fuipeft
him of fuch a wifli.
Thi
Chap. II- EVIDENCE. 693
Tks tcilimonj of a hermaphrodite is admiflible, becaufe fuch or of an ^r«
a pcrfon is cither a man or tl woman, and the evidence of both is ad- '^^ ^* '''*
ini/liblc.
Tkid leAimony of a governor on the part of the fultan is admif- orofawV#r<F.
(iblc, according to a majority of the Haneejit: doAors, provided he do
not enforce oppreilion ; but if he aft opprcfiivcly his tcftimony is not
admiiltble. Some have faid that in the latter cafe alfo his tcftimony is
admiflfble, provided he be himfelf a man of gex^erofity and character,
and be not guilty of boafting and vain talk ; becaufe it is in fuch cafe
naturaL to fuppo(e that a regard for his reputation will prevent his af-
ierting ^ falfehood ; and the dignity of his charafter will deter any one
from offering him a. bribCiu
Where two brothers atteft that their father had appointed a par- Twobrorlm
ticular pcrfon to 1% his executor, if that perfon alfo claim the fame, ^^^^5?^^**
their tcftimony is valid, upon a favourable conftru£l)on, — but not if poinuacm of
he tienyt the appointment. — Analogy would fuggeft that their tefti- auft'b^^cK-
roony is not valid in either cafe ;— (and a cafe where two legatees atteft fi'^jjj^ *^t
that the teftator had appointed a particular perfon his executor,— or "^r ^^ «<f-
whcrc two debtors or creditors oi the deceafcd aflcrt the fame,— or AfldTciiefime
where two executors atteft the junftion of a third perfon with them •Z^***"*^*-
• /> « • >• tioo Of two
in the executorship, — is lubiect to the fame analogy ;)-*-4)ecau{e their lexatees. two
evidence is in fomc degree advantageous to the witnefles themfelves, diiert, or two
in as much as the advantage to be derived from it rcfults to tUm alio. SrfcmTef^
The realbn for a more favourable conftru£tion in this particular is that ^^
as it is the dttty of the K&sut to appoint an executor where it is re*
<)uircd, and where the death of the perfon is notorious, the evidence
in qveftion is adaiffiUe, inafmuch as it exempts the Kizee from
this trouble^ and no/ becaufe it elftabliflies the proof of any tbing.-^Xt
is therefore a fubflitute for the caft of a die, which faves the trouble
cf ctcQjon.
8 Objection.
*94 EVIDENCE, Book XXI.
Object roK. — ^Wherc there are two executors, thcrq is no occa-
fion for the Kdzeis appointment of a third, and therefore the appoint-
ment of a tbird^^ upon fuch a ground, is unwarrantable.
Reply. — The two executors having acknowledged that the dc-
ceafed had joined a third perfon with them, the Kixee is therefore
required to confirm him, fince, in confequence of (iich acknowledge*
ment they cannot a£t without him.
— ^It is to be obfervcd that where the debtors of the deceafed atteft the
executorfhip of a particular perfon, their evidence is admiilible, whe-
ther the death of the other be notorious or not, becaufe fuch evidence
is an acknowledgment affecting themfelves ; and the death of the cre-
ditor is therefore edabliflied with reipeft to them, becaufe of their ac-
knowledgmenL
Att«^««tt> If two brothers bear teftimony that their abfent father had ap-
pointment of pelted Zeyd an agent for the receipt of debts due to him at Koofa^
^StK^ivS. ^^^^ evidence is inadmiflible, whether ZcyJ claim the faid agency or
not ;— for the Kazet has no power of himfelf to appoint an agent in
behalf of an abfentee; and the evidence is not in this inftance fufficicut
to warrant it, fincc it is liable to fufpicion,
Aderen4ant't If a defendant reproach a witnefs with a thing which would im-
of the intcl"^ peach his legal integrity, but which does not involve any of the rights
gmyofwit. of the fpiritual or temporal law, and produce evidence in fupport of
credited. im- his aflertioo, the Kdzce muft not hear them, nor pafs a decree of the
tkdr com!^ injuftice of the witnefles ; becaufe this injufHce is a thing of a nature
n|^ ^, which comes not within the juri(<Ii£tion of the Kisee^ inafinuch as it
crioc/^ is not permanent, being removeable by repentance. — Befides, the
evidence adduced in this cafe tends to lay open fitults * : — now the
concealment of faults is incumbent, and the manifeftatton of them
^ Byfiuitt is here underftood vmal trejftjfit^ fiich as might deficojcbe legal inttgriqf
of a wimefs, but which do not amount to erimts.
prohibited:
L
CHAF.n. EVIDENCE. 69s
probilnted: as^ therefore, a witnefs, in giving evidence to this efFeft,
is himfdlf guilty of irregularitj, his teftimony cannot be heard; for
the manifeftation of faults is- admitted only where it tenids to maintain
the rights of others i and that is only in fuch caies as fall within the
jurifdidlon of the JC£z^^ ;-^but the cafe in queftion is not of that na«
ture; and therefore the evidence cannot be admitted. — ^If, however, or lAloce
witnelles were to give evidence that the plaintiff hr^l himfelf acknow- thepUIncirt
Icdgcd the irregularity of the witncfsj the evidence would in that cafe ^^^'^g,
be valid; becaufe acknowledgment is* a thing which falls within the in^darit/.
jurifdidion of the Xtfz<^
If a defendant bnng witnefies to prove that the praintiff had Ore J Hen aoial^
his witnefles for tm£rms (for inftance,) fuch evidence muft not be £l^tva«ct
admitted; becaufe, although it tend to prove fomething more than a ^!^}^
mere frregu/arity^ yet the defendant not being a regular adverfary of pUiatur»
the plaintiffin regard to this matter, has no right to eilabliih it by evi*
dence, fince, with refpe& to this point, he is as it were a ftranger. —
If, however,, the defendant be a regular adverfary^ — (as if, for in- wJefihisown
fiance^ he (hould aflert that the plaintiff had hired his witnefles to wrSfS.
give evidence for ten £rms from property which he [the defendant]
had put in his hands,.) — in that cafe the evidence he produces in fup«
port of his allegation muft be admitted; becaufe the defendant is in
this !'^(hince a regular adverfary of the. plaintiff* in a matter of pro*
petty ; and the proof in i^^gard to. the property neceflarily involves the
proof, of the reproach.— In the fame manner alfb, the evidence ad<*
duced by the defendant is admitted where he afierts that*^ he had
compounded with the witnefles for a certain fum of money that
they ihould withhold their teftimony in.fupport of fuch unfounded
claims— and that, havbg accordingly paid the Aipulated fum, they
** had neverthelefe given their evidence, and he therefore prefers a
** claim for the fum paid to them ;** — for here the proof with refpe£t
to the claim would alfo efiahlifh the proof of the reprMch. Lawyers
haveobferved that as the tcltimony of witnefles is admitted with re-
fpeft
696 EVIDENCE. Book XXI.
fped to any thing that Ms within the jurircS&ion of the Khbtt^ it
follows that if the defendant bring witnefles to prove chat the witnds
of the phintiffis %Jlave^ or that he has been pucifhed for fiauder, or
that he is a drunkard, or a flanderer, or a partner of the plaintiff,—
in all thefe cafek the evidence i[^ adduced mud be admitted.
^^m^^'^ If a per&n give evidence, and before moving from the place, or,
ackaowiedg* the Kdzte pafling a decree upon it, declare that ** he had ^ven a part
S^imc!^* ^^ of his evidence under the influence of apprehenfion,** (Ull, if he be
^J^^^>^> a perfon of charafter % the depofed matter to which he adheres muft
Atm/JifS^ be credited. — The term €ffrehaificK\^ as here uicd, implies that a fkuk
H^te^u ^^ t^^^ committed, eithdr bjr withholding part of the evidence which
it was incumbent to have mentioned, or by reciting, from forgetful-
nefs, ibmething that was £dfe.— «The reaibn of admitting the cvi*
dence, in this ca&, is becaufe the apprehenfioa probably arole from
the awe excited by the aflembly of the Kizeei whidi is excuftd pro-
vided the perfiin be juft, and that he re£dfy his error in time. — ^It is
otherwife where a perfon feparates from the afiembly of the Kdzee^
and afterwards returns and fiiys, ^* I have omitted part of my evidence
^* £rom apprchenfionf ' for in that cafe his evidence would not be ad-
mitted ; becaufe there is reafbn to fuipeft a coUofion with the plaintiff,
which requires that caution be ufed ,* and alfo, becaufe although any
addition or diminution, after the delivery of the evidence, be accepted,
and either added to, or deduced from, the original evidence, pro-
vided they be made in the fame meeting, fHU this is not allowed in
cafe of thdr being made at a deferent meeting. The fame nik al(b
holds with regard to the mifhkes of a wimefs in explaining the
boundaries of a houfe;— as if he fhoold fiiy (for infbnce) the eajl in-
ilead of the 10^; or in explaimng genealogy, as if he fhould lay (for
infbnce) «' MaAammtd, tie Jin ^ Aumid,*" inftead of '' tlefm ff
• Artb. jUl: liienlli^ a/yTpeifai) (boppofidoaco/ii/B.)
•• Albb."
CUAT.UL EVIDENCE. 697
^^ AistJ'^—lt » to be oblerved that the expofitioa of the law, in
this cafe, applies only to the addicion, hy the witnefs, of ibme cir-
cumibnce which ma; be ia its nature doubtful ; for if it (hould be in
ao refpe& doubtful, then he may at any time afterwards, whether at
the &me imeetiag or not, lawfully add it to his evidence.— Thus if a
witneis omit the ufe of the wdrd Sbabdditi or the like, and afterwards
declare this omffiion, it is in that caie admitted, whether it be at the
fame meeting or not,~provided he be a juft man.— It has been related,
as an opinion dlHanufa and Ahfto Toofrff that whatever addition or
diminution a witxie& may make after the delivery of his evidence,
fliall in every cafe be admitted, although it be at a difterent meeting,*—
provided the witnefs be a juft man.— But the nift doftrine is the moft
authentic, and decrees pais accordingly*
CHAP. ni.
Of the Difagreeraent of Witneffes in their Tcftimony.
Wh£RB the evidence adduced by a claimant is conformable to Evidcnctre-
the claim, it is worthy of credit; but not where it is repugnant to f||**cUim^
it; becaufe, in matters cuuceraiug the rights of the individual, the ciiiijotbc%a-
priority of the claim is requifite to the admimon of evidence ; and this
exifts in Reformer inftance, but not in the /atur^ fince in the former
the iki^Qi of evidence, (namely, a verificatioti of the cbim) is an-
Twered, — whereas in the loiter the evidence tends to a falfmcation
Vol. II. 4 U of
698 EVIDENCE. BookXXI.
of it, and it is therefore the iamc as if no evidence at all were pro-
duced*.
Thewitneflb Thb ccncurrence of the witnefl^, in wordraad noieaning, is re*
UAj ^w quifite, according to Hantefa.-^lff therefore, one witncfs bcsir te(H-
bi^ icfti* nnony to one chouland iSrms being due, and the other to two thou-
fahd, no credit is to be given to either.— The two <£fciples are of
opinion that the evidence is to be credited to the amount of one thou*
fand Jirms: and a iimilar difagreement alfo fubfifts in a cale whert; one
witnels attcfts one divorce, and the other ItM or /ifir^rdivorces.— The
arguments of the two difpiples are that Ac wimefles- agree in the
fmaUep amount, (fuch as in a»r thouland Hms^ oic in me divorce ;)
and one of them, beftdes his agreement in diis amount, atteib an ad-
ditional quantity. — Their evidence, therefore, muft be admitted in
the degree in which they concur; and the tefiimony of one, fo far as
it relates to the excejs only, muft be remedied.— The reaibning of H^
neefa is that the witneiles difier in worJx^ and confequently in meamng^
£nce meaning is extraded from words. Thus tw thoufand (for
in(bnce) can never be conftrued to mean mt thoufand, as the terms
are cifentially di'iferent. — In the cafe in queition, therefore, the mt
thoufand, and ihctwo thoufand, refpedively, are attefled by only one
witncfs ; and the cafe is confequently the £unc as if their telUmoiiy had
related to different articles^— -as if one were toattefl iimu^ and the
other ditnars^ for inflance.
Theintneffci If a pcrfon claim a debt of one thoufand five hundred dirms^ and
dited to the one of his witnefles bear teftimony to one thoufand, and the other to
one thoufand five hundred, in that cafe the teftimony muft be credited
* Toexemplify this cafe^— Tuppofe a pcrfon were to daim the right of property in a
houfe^ on the pka of his having purchafed it ; and his witnefi atteft the right of propeft]^
from ics having been given to hioii^in that cafe the evideaee (b given woidd bt
rejcAed.
in
Chap. HI. EVIDENCE. 699
in the amount of one thoufand £rm*\ for the witnciTes concur in anMnt in
that amount/ both in words and meaning, as one thoufand is agree boch in
mentioned by both, and five hundred is an additional part of the fpeech, ][^ *"*
which adds force to the former part, inftead of deflroying it.«-*Ana-
logous tQ this is one divorce and one divorce and an half; or one hun-
dred Jirms and one hundred and fifty (Srmsi that is to fay, in both
thefe cafes the evidence is admitted in the lead degree, namely, in
the degree of one divorce, and to the amount of one hundred dirms.-^
It would be otherwife if one ^ttnefs Ihould atteft ten Jlrms^ and
the other fifteen ; becaufe this is fimilar to the attefbition of one
thoufand and two thoufand, the effeA of which has been before
fbtod.
In a cafe where one witnefs attefls one thoufand Jlnns^ and the Themdence
other one thoufand five hundred, and the claimant exprefsly declares who atKciu a
that only one thoufand £rms is due to him*, the teftimotiy for one XSit^'^
thoufand five hundred is null, as being falfified by the claimant +. — ^"" ■• .
The effc& is alfo the fame where the claimant alleges one thoufand boU.
JirmSf and one of the witnefles attefls one thoufiind, and the other
one thoufand five hundred ; for here alfb the claimant fiilfifies the
teftimony of one of his witnefiles, inafmuch as his claim is different
from it, A conformity, therefore, between the claim and the evi*
dence is indifpenfably ncceflary : and hence, if the claimant fhould
fay *' my original claim was one thoufand five hundred iCrms, but I
^* received five hundred,'* or *^ I exempted the debtor from five
* The diflference between this and the pceceding cafe turns entirely on the terms in
which the teftimony is delivered ; for in the cafe here confidered the witneft, in mentioa-
ing au thiuJMfive Inmirel^ mentions the term wi thwfini^ which To fu coincides widi
the teftimony of thd other witnefles ;-— whereas, in the former infiance, the witneflb coin-
cidc only in the term dmfmi^ which is not perfeAly definite.
t Confequently the daimant muft produce another witoeft, a isdv are reqmred to
caablift his claim.
4 U St " hundred ;••
TOO EVIDENCE. Book XXL
** hundred;^* in that cafe each of th« above mentioned teftimoiues
vfould be credited, becaufe of their conformity with the claim.
Evideaee to t I? t WO peribns give evidence to a debt of one thouiaod iSrms^ and
•imJbdby a <^^ of them afterwards declare that the debtor had paid five hundred
^^J2^^ £rms of it, dill the evidence of one thoufiuid*i£mr being due muft be
of pmoTthe credited, and that of the five hundred having been paid mnft be re«
bm M^ jefted.—- The reafbn of thu( is, that 6oih witnefles agree in the debt of
^^*V* one thouiand i&Tnif whereas Mr witneft only attefts the payment of
five hundred Swsi and as two witnefles are requifite to eftabliih
ptxK^f the teftimony in the firft infianoe is therefore admitted as proof;
and the additional declaration (of one thouiand i£nnx having been
paid) is rgefted. — ^It is related as an opinion cfAho T^fif that in
this cafe the cUmaht is entitled only to five hundred^rmx, becaufe
the fum of the teftimony of the witneis who attefb the payooent of
five hundred iirms is, that th« debt in fafi ahsounts only to fvc
hmirti. The above explanation, however, is a full refutation of this
opinion. It is to be obferved that when the witneis is informed of
any partial difchargc of the debt, (as in the cafe, fi>r inftance^ of/tir
bunirid out of the tbcmfMi^ he muft not bear teftimony to the
debt of one tboufimd until the creditor make an acknowledgment of
the receipt of five hundred; for otherwife he would be confidered as
aiding the injuftice of the creditor.^n the Jama S/aghetr it is related,
Aat if two peribns attefl a debt of one thouiand Unas due by Otnar to
Z^JU and one of them afterwards bear teitimony to Onuur having paid
five hundred of it, and the claimant deny the fiime, — ^tn that cafe their
evidence of the debt, in which th^ both agree, muft be oredited;
and the fingld teiKmony of one, with regard to rhe payment, raufl be
rqe£tod.---7kMorir reports it as txi opinion of our doftors, that the
evideoceWthod^is not to be credited; (and Zsj^r has adopted- this
opinioa;.) becaufe the chimant cootradiAs the teflimpay of the pay*
ment— To thist however, it is anfweitd, that although the claimant
do contradift this htter teftimony, yet he does not ^^^»r?4ift the
fiiil
Chap. IIL EVIDENCE. 7^^
firft evidence, which is eihUilhed in its validity bj the concurrence
of two.
Jp two perfons bear teftimony that a certain perfbn had killed THeevidence
Z^d^ on the feftival of the (acnfice, at Mecca; and two others bear who igm
teftimony that the fiud perfon had killed ZeyJ, on the ianne day, at ^^[^/^
Koqfa; in fuch ca(e, if all thefe witnefles be alTcmbled at the (ame ''•'• bu< ^>^*
time, in the prefence of the KdseCf the whole of their teilimonies rpee> to/Mrr.
muft be rejeficd; becaufe, of the evidence of the two parlies, it is j£j^ *••
undoubtedly certain that thai of one of them muft be falfe, and there
is no criterion to afcertaiu to which the preference belongs. — If, on
the contrary, the evidence of one of thefe parties precede .that of the
other, and the K&sa in confequence pafs fentence, and afterward
two others exhibit evidence of a different nature, in that cafe the Kd-
zee muft not admit the evidence of the latter, becaufe the firft evi-
dence, in virtue of the iflue of the decree confequent upon it,
acquires a fuperiority over the latter, which prevents its annul-
ment.
Ip two perfons atteft the theft of a cow, but differ in regard to the Evulenee to
cofaur of it, their evidence is neverthelefs valid, and the hand of the ^^^i^
thief muft in confequence be cut off. — If, on the contrary, one of the »« *jJJ£H*^
witnelTes declare the animal to be a cote;, and the othec allege that it cMbem-JeA
is a iu//^ thdr evidence, in fuch cafe, is not admiffible, and the hand l^clTi^^'
of the thief muft not be cut off.— This is the dofbine of Hamefa. — ^•";*.<^*5*
The two difciples maintain that the thief is not to fuffer mutilation in a^iiiflmace
either cafe. Some have faid that this difiigreement proceeds on the Il^uJI^j^
fuppofition of the attefted colours being in fbme degree fimilar, fuch as
red and hlackt and not where they differ completely, fuch as black and
nnhitt. Others again have faid that it fubfifts in all cafes where the
witnef&s differ with refpeft to the colour. The reafdning of the two
difciples is, that the theft of a black cow is different from that of a
viihUe cow ; b other words, they are two diftinA animals ; and hence
3 the
702 E V I D E N C E- Book XXI.
the due quantity of evidence (namely, that of /wo witneffts) does not
appear with refpe^l to either allegation of theft.— -It is therefore the
fame as if two perfons were to teftify that a certain perfon had ufurpei
the cow of fuch a perfon, but to difagree with refpeA to the colour oi'
the cow ;— in which ca(e the evidence of both would be rejected ; and
fo alfo in the prefent inftance, a fortiori^ becaufc the penalty annexed
to theft (iumely» amputation) is of a mod grievous nature. Hence a
difference of the witneilcs with refpedt to the colour is the fame as a
difference with refpeft to the gender. ^^Yxt argument oi Haneefa b,
that in a cafe of difference between the witneiles concerning the colour
of the animal, it is poiiible to reconcile the contradiAion by fuppofing
the witneiles to have viewed the cow from a diftance, and in the nighi«
time, fmce thefts are mod commonly perpetrated at that feafon ;-»
and colours are of a deceptious nature :— cattle, moreover, are often
fye-balUd\ and it is therefore pofTible that the cow may be black on
one fide, which was fccn by one of the witneiTcs, and white on the
other fide, which was fccn by the other witncl's.— It is othcrwife in a
cafe of ufurpatmu fnice that moft commonly happens in the day-time,
and conlequently the fa A is moft probably {ttn in the light, and near
at liand. It is alfo otherwife with refpcA to the fcx of the animal,
fincetwo fexes cannot unite in the fame creature. Befides, a know-
ledge of the fex requires a clofe inipe£tion, and hence the cafe does not
admit of uncertainty^
Evidence to Tf One perfon atteft that Zeyd had purchafed a (lave for one thou*
Xn&\%^ fand dirm^ and another that he had purchafed the faid (lave for
dSrmice**^ fifteen hundred dirm^ in that cafe the evidence of both is null ; be-
with refiMa caufe the obje£fc of the evidence is to eftablifh a caufe of property,
tke\oiKfia, n^^niely, the contrad of fale ; but the mention of two prices necelTarily
implies the exigence of two contrails ; and the proof of either of thefe
is defedive, as there is only one witnefs to each. This cafe proceeds
on the fuppofition of the buyer being the pla'mtifF; but the effe^l is the
fame in cafe of the claim having been (nade by the feller \ — ^and it
8 matters
Chap. III. EVIDENCE, 703
matters not whether, of the two fums attefted, the plarntiiF claim the
largeft or the fmalled ; becaufe the proof is defective on either fuppo-
fition, for the reafbn already explained.--— The fame rule alfo holds
with refpe£t to a contract of Kitdbai ; that is, where a Moidiib and
his maAer di(agrec with refpe£t to the* amount of the ranfom or con-
iideratjon of Kifdiat^ and the two witnefles likewifc difagree in their
teflimony, the evidence, in fuch cafe, is null, (ince the ohje£l of it
(namely, the eftahliftiment of the contraft of Klidhaf) U defcftivre,
for the reafons already explained; — and this, vvhethcr the majier or
the Jlave be the plamtiF. It is alfo the fame with refpcA to K/joola^
manumiflion for a compenfation, and compofition for wilful murdLT,
provided the claim be preferred by the wife, the (lave, or the mur-
derer;— becaufe in all thcfe cafes the obje£t of the evidence is the fame,
(namely, the edabliihment of the exigence of a contra£b,) and is
defeated by any difagreement of the witnefibs.— But if, in any of thefc
cafes, the claim be preferred by the oppofite party, it then becomes
equivalent to a cafe of debt, and the law takes place accordingly.—-
Thus, if the claim be for one thoufand Ave hundred dirms^ and one
of the witnefTes declare it to be one thoufand, and the other one
thoufand five hundred, in that cafe, according to all our dotStors, a
decree muft be given for one thoufand dirms. — If, on the contrary, the
claim be for two thoufand dirms^ and one witnefs atteft to one thou-
fand, and the other two thoufand, in that caf? nothing can be de-
creed, according to Haneefa ; whereas, according tc the two difciplcs,
one thoufand muft be decreed. — The principle on which thefe cafes
refemUe debt is, that the pardon for murder, the freedom of a flave,
or the divorce of a wife, is eflabliHied by the acknowledgment of the
perfon to whom each of thefe rights appertain. — Hence, in fuch cafe,
his chim of debt only remains, and there is no occafion for the proof of
the contrafl.— In the cafe of z pledge^ if one witnefs attcfl that it was
pawned for one thoufand dirms^ and the other that it was pawned for
one thoufand five hundred, arid the cLiim be preferred by the pawaer^
the evidence is in that cafe inadmifliblei becaufe the pawner has no
advantage
7«4 EVIDENCE. BookXXL
«
advantage in preferring fuch a claim, fince be cannot refume his pawa
until he pay ^e debt oppoled to it. — ^His claim, therefore, is not re-
garded; and fuch being the. cafe, the evidence he adduces is, as it
were, evidence without a claim; and evidence without a ^bum is in-
admiflible.— >If, on the contrary, the claim be preferred by the pawn-
holder, it is the fame as a claim for debt.— In a cafe of btre^ if one
witnefs teitify to one thoufand dirms^ and the other to one thou&nd
five hundrod, then, provided this difference happen at the beginning
of the term of hire, it b analogous to a fimilar difference concerning a
falci but if it happen after .the expiration of the term, and the daim
prdft iwT' ^ preferred by the hirer, it is a claim of debt. — ^In a ofe of marru^e^
^^ta^' if one of two witnefles teftify to a dower of one thoufand £nm^ and
catided co the Other to a dower of fifteen hundred, the dower is efbUifhed ia the
raattiaficd. ^i^o^nt of one thouiand Jitms^ according to ffm^g^, whether the
claim be preferred by the hufband or wife, and whether it be for the
fhiallefl or greateftof the attefled fums. This is according to a favour-
able conflru£Uon. The two difciples, arguing from analogy, main-
tain that the evidence is totally inadmiflible. — (It is, however, re-
corded in the Amdlce^ that the opinion of Aboo Toofrf^ id this inflanc^
accords with that oiHane^a.) — ^The reafoning of .the Jtwo difciples,
in fupport of their opinion, is that the difagreement of the witnefles
with regard to the amount of the portion is in hd a difagreement with
cegard to the marrii^t contnUl^ fince the object of both is the e(b-
blifhment of a caufe^ namely, the faid contract; — the difagreement in
this inflance, therefore, is analogous to a fimilar difiigrcement with
regard to fale. — ^The reafbn for a more favourable conftruOioii of the
LAW in this particular, as adopted by Haueefa^ is that frafertj^ in
the cafis of marriage, is merely a fubordinate point, the ori^nal otjeft
of it being to legalize generation, to unite the fexes, and to ecdow
the man with.a right in the woman's per&n. Now as there is no dif-
ference whatever upon thefe points, they are accordingly efbbiifKedin
thefirfl inflance; and if any difagreement then occur concerning tb?
fubordinate or dependant pcunt, the iinalleft (urn attefled is decreed,
(foce
L
Chap. IV. EVIDENCE. 705
fince to that amount both witnefles agree.— What is here advanced,
that the cafe is the fanie ^^ whether the claim be for ihcftnalkft or for
the greateft attefted fum/*-~is approved. — Some of the learned have
faid, that the difference of opinion between J^M^f/tf and the two dif-
ciples proceeds only on the fuppo(ition of the claim havmg been pre*
ferred by the woman : foi that, In cafe of the claim being made by
the hufbandy they are all agreed in regard to the inadmiflibility of
the evidence; (ince his object can only be the eftablifhment of the
contraS^ whilft the objefl of the woman is the ^ro^r/y.-— Others
again have faid that this difference of opinion obtains in either cafe ;
and this is approved.
CHAP. IV.
Of Evidence relative to Inheritance.
It is a rule« that if an inheritee*s * right of property in any thing be Evidence
proven« ftill a decree cannot pafs in favour of the beirs, until proof be ^uccd co
adducedofthedeath of the inhcritee, andof their right of heritage.-— 5^^^
This rule obtains with Hnneeja and Mobamnui. Jlboo Too/of main* iakeriut sad
^ Meanii^f the pcrfon from whom inhericaoce is derived. The tranflacor is awaro
tbat this term is not fiio&joiied by authority, ifju^ir being the phrde geoenBy iiCrd in our
bw-books.— -The nature of the Mt^dmm Uwt of inheritance, however, renders it nece&
fary 10 adofC feme term of more general import, fince, according to thefie^ inherituice may
either tfstmi or itfttni. — ITw. tranflator, therefore, has adopted this term, both in order to
avoid the inconvenience of a perpetual pariphrafis, and alfo becaufe it literally expreflea
the fenfe of Che Artik urm Mmurit^ fign^iog ** nhniud frmu**
Vol. IL 4 X tains
7o6 E V I D E N C* E. ' Book XXL
thcn|iitor tains that the thmg muil be itnnicdiatcly decreed to the heir;, for he
foi'iSiir alleges that the property of the heir ist m ftft, the property of the
u^cML w^^^"^^t *f*^ conlcqucntly that evidence to the inherkee's right of
property in any thing is, in fafi, evidence to his heir*s right of pro*
perty in that thing. — Haneefa and MotammeJ^ en the contrary, aUege
that the right of the heir is inchoate and extant de novo^ with refpeft
to all the rules to which the inherited property is fubje^t; (whence it
is that a courfe of abftinence is enjoined opon %n heir, with regard to
an inherited female flave,«— and likewife, that whatever a pnor inhe«
ritee may have received by way of charity is lawful to his rich heir;)
and the right of an heir being inchoate and extant de ncvo^ it is indif-
penfable, in fuch cafe, that the witnefib bear teftiniony to the fliift*
ing of the right from the inheritee to the heir,— in other words, that
they atteft the inheritee to have died, and to have left the article in
IcfiificMikM qucftion as an inheritance to his hcirs.-^They deem it fufficicnt,
Aitcft cichcr however, in order to prove the (hifting of the right of property, that
they
atteft that " it was in the keeping and foffeffiM of the inheritee at the
** time of his death;** for although the pofleflion of an article may
have been in virtue of a depolit, or of ufurpation, yet the pofleflion
at death, in either cafe, is in h& a pofleflion in virtue of the right,
becaufe of the obligation of refponfibility which then takes place:— in
a cafe of ufurpation evidently; and alfo in a ct<t of depofit^^ becaufe
of the death of the truflee without any explanation ; — ^in other words,
if a truflee fliould die, without explaining that a particular thing in
his pofleflion is the depofit of a particular perlbn, it occafions refpon-
fibility, becaufe the truflee, in dying without explaining the cafe,
was inofl certainly guilty of a want of care of the dcpoflt ; and a want
cf care of a depofit is a tranfgreffion with refpeA to the depofit, whiob
* See Dif^fit.
induces
Chap. IV. EVIDENCE. 707
induces refponfibirity.— Evidence, therefore, of a thing being in the
poflcflion of a certain perfon at his death, is equivalent to evidence of
its being his property.
Having thus explataed the tenets of each of our AoAoh itpon fj^t}^ ""^
this (ul^eft, it foUbws that if witnefles were to give evidence that a tide inpof/
particular houfe was in the poflbllion of a certain man at his death, S^t^
the evidence fo given nnift be admitted with refpcft to the claimant K^^JL^dJ^
being the heir of the deceafed. Irt the (ame manner alio, tlie tefli- frw^rtjciii*
tnony of witneiles muft be admitted, where a perion adduces evidence "i^l^*^
to prove that a particular houfe, in the pofleflion of a certain peribn, /JJ^^«««
was the property of his ^ther, and that his father had lent it, or had
delivered it in depofit to the perfon then poilefling it. In this cafe,
therefore, the faid perfon is entitled to take the houfe from the prelent
occupier, without being required to prove, by witnefles, that his Ei-
ther had died, and that the faid houfe had been le/t to him in inhe-
ritance.-^This, according to the tenets of ^^00 Tw^frf^ is evident:—
and fo alfo according to the tenets ofHaneefa and Mohammed; becauie
in the cafe in queflion it has been ihewn, by the teflimony of wit*-
nefles, that the father was in poffeflion at the time of his death, inaf-
much as the pofTeffion of a borrower or truflee is equivalent to bis own
poffeflion; and on this account there is no necefltty for proving the
(hifting of the property to the heir, fince that is a confequence of the
proof of the pofleflion, as lias been already explained. — It is to be ob-
ferved that the law is the fame where, under thefe circumftances, the
claimant afTerts the pofTeffion of the other to have been in virtue of a
leafe ; becaufc the pofleflion of a leffee is equivalent to the |K)fIeflion of
the lefTor.
If a perfon claim a right of property to a houfe in the pofleffion of ''^^ ^'i^ \^
another, and the teflimony of the witneflcs produced by him fhould noc eftabfifli-
nin in this manner, ** we tcflify that the faid houfe was in the pof- Stnce wthc
feffion of the claimant one month ago^^ — fuch evidence mufl not be f^T^^:
2 admitted.
7o8 EVIDENCE. Book XXL
«dinitted.«-This'is the dodtrine of the Zdhir Rawfyet.~It is related as
an opinion of ^l&oo Twfuf^ that the evidence, in this cafe, is adinif-
fible; becaufe poffejion 15 an obje£t in the fame manner as property i
and as the tcflimony of the witnefles would have been accepted, ui
cafe they had faid that the houfe in queftion was the property of the
claimant one month ago, it follows that it muft be admitted in this
cafealfo. — ^Befides, if the witncfTcs had depofed that the other had
taken the houfe from the hands or pofleflion of the claimant, their
evidence would have been admitted^ and the claimant would, in con-
iequence, have been put in pofTeilion of the houitf. The dodrine of
the Zahir Rawdyet^ in this particular, has been adopted by Haneefa
and Mohammed: and the arguments in fupport of it are twofold.-—
First, the (eizin of the prefent pofleflbr is actually feen with the eye;
whereas that of the claimant, which formerly exifted, is only heard
from the tongue of the witneiTes; and knowledge from bear/ay can
never be put in competition with that from actual fight. — Secondly,
the evidence, in this cafe, relates tc a matter of uncertainty ; fince
the former fetzin of the claimant, not being definitely known, adauts
of three fuppolitions, as it may have exifted in virtue either of right
of property, ofdepofit, or of ufurpation;— and where the point is of
fo uncertain a nature, it is impoflible to pafs a decree upon the pof-
feflion— It is otherwife where the witneflcs attefl: the right of pro-
perty, as that admits not of various fuppofitions ;— -or, where they at-
teft that the houfe had been talcen from the claimant; becaufe this is
a matter of certainty, of which the law is known, namely, the obli-
gation of reftitution, or of replacing the thing, as it formerly flood, in
the pofTeilion of the claimant.
SSiif*^' If the poflcflbr of the houfe (hould himfelf acknowledge the former
kwMrkdse oofieflion of the claimant, in that cafe a decree muft pafs for reftoring
^ ^ the claimant to his pofiefiion; for the uncertainty with regard to the
fubjeA of an acknowledgment is no bar to the validity of the acknow^
ledgment itfelf.
If
f«eli fbrmer
Cmaf.V. evidence. 709
If two pcrfons attcft the acknowledgment of the defendant, that ^;j|^
*• the thing in his poiTeflion had formerly been in the poffcffion of the hU havi«g
" claimant/* the article in queftion muft in that cafe be reftored to Sfi^^g.
the claimant; bccaufe, although the fubjeft of the acknowledgment «*««•
be a matter involved in uncertainty, yet the evidence here relates, not
to it, but to the acknowledgment itfelf, which is a matter of cer-
tainty;—and the uncertainty in the fubjeft of it is no bar to the de-
cree of the Ki%eej iince he may afterwards defirc the acknowledger to
explain the nature of the uncertainty*
CHAR V^
Of the Attefiation of Evidence.
Ak atteftation of evidence is adnufllible in all fuch rights as & not Atteftatioaor
drop in confequence of a doubt ; becaufe there is a neceffity for this, I^^ u
fince it may happen that a witnefs, from various* caufes, (fuch as ■" ^vS^
pckfufs^ may not be able to give his evidence in perfon ; whence, if be affeOcd
an atteftation of his evidence were not admiffible, the rights of man- *y**^'*
kind would often be deftroyed. There is, however, a degree of doubt
attending it ; becaufe Uti^ftcmiary witneis, in fuch cafe, is merely a
fubftitute for the primary witnefs;— and if there be numy gradations
between him and the primary, the fufpicion of fSdiehood becomes ftill
ftronger. — There is, moreover, a poflibility of avoiding this expedi-
ent, by defiring the party to produce, independant of the witnela
whofe attendance b impracticable, fome other who is alio a primary
witneli«.
710 EVIDENCE. Book XXL
witnefs. — An att^ftation of evidence^ thertfore, is never adnutted
where it tends to eftablifli a matter which is repelled hy the exiftence
of a doubt, fuch z^funijhmtnt or reiaSaiion.
T***^*' The atteflation of two men with regard to the evidence of lwo
iame rwt Others is valid. Shafci maintains that the evidaice of four men is
fi^ M^prm necefiary to authenticate that of two men; becaufe, in his opinion^
^ecvuicnce ^g (ocondaiy witnefles are equivalent to one principal, in the fame
manner as two women are equivalent to one roan. The arguments
of our dodors in fupport of their dodrine upon this point, are two-
fbld.-^FiRST, Alec has declared that am attcfiation of the evidence of
one man is not admiflible UBlefs attefted bj two. — Secondly, the
dating the evidence of a principal or original witnels is included in the
number of rights. If, therefore, two men teftify to the evidence of
a principal witncfs, and afterwards tefHfy to the evidence of emitter
principal witnefs, both evidences are valid ; nor is it required that the
evidenteof each principal witnefs ihould be teftified bjr twt^Jcparaic
fecondary witnefles.
tettlieevi The atteftation of one perfon to the evidence of one witnefs is
i3*liat not admiffiblc, becaufe of the opinion of-/^/rr, as before quoted.r-
^^^^ ^T ^ AUffi admits the atteflation of one perfon to the evidence of one wit*
civclf. nefs.— The precept of ^iif^, however, is in proof agaiafl him.-^Be-
fides, the evidence of one principal witnefs is included amongft the
number of rights, and therefore requires to be proved by two wit-
nefles.
The attella. It is requifite that the prinapal witnefs defirc the iecondary to
S^riiTdSiS bear teftimony to his evidence, after the following manner, — *« Bear
^ *** '^ ** tcftimony to my evidence, which is, that A. the fbn of B. has made
wli7iRU ' ^^ sui acknowledgment before roe to a particular efTefi, and has defired
5 hu te™ " ^^^^ ^"^^ thefaid acknowlcdgroent.*'— -The rcafon of this U rhiJ
moax 10 the the fecondary witnefs is a deputy of the principal, and it is therefore
neceflarjf
I
Chap-V- evidence. 71 r
ncceflarjr that he appoint him his agent, and defire htm to bear evi* aueriing
deuce in the maimer above rehted. — It is alio requifite that the prin-
cipal give his evidence to the (econdary, in the fame manner as he
would have done in the aflembly of the KXtee^ in order that he [the
iecondarjr] may report the (ame literally, in thataflembly.—- It is to be
obfervcd, however, that if the principal fliould not mention that *' A.
^^ the Ton of B. had called him to witnefs his acknowledgment/* (till his
atteftation is valid; becaufe whoever hears another make an acknow-
ledgment may lawfully give evidence of the (ame, although the ac-
knowledger (I»ould not have de(ired htm to bear teftimony.
It is requifite that a (econdary wicne(s deliver his teflimony in the Form of an
following manner: — *^ ZeyJhas called upon me to atteft his evidence ^^ ^*
** that Omar has made an acknowledgment before him to a particular
^' effc&f and that he had defired him to bear teftimony to his evi*
^^ dence of the £ud acknowledgment/*— All this is required, becauic
it is nece(rary that a fecondary witneis recite the fubftaiice of the evi-
dence of the principal, atid fpecify that he had called upon him to bear
te(timotiy to it.
Ip Omar hear ZeyJ aflert that a particular per(bn had defired him a pnfencaii.
to bear teftimony to lome circumfiance, it is not in that cafe lawful 1IS^*JS,J*^
for Omar to atteft the faid evidence oSZeyd^ unlefs Zeyd (hould have MMJier. «•-
particularly called upon him to atteA the fame ; becaufe, m the attef- dcOfc kim f/
tation of evidence, that of having been called u^on to atteft it is a ne-
ceflary condition. This is according to all our doAors : — according to
Mobammed^ becaufe, in his opinioti, the decree of the Kdzee pa(ie9 on
thcfirength of both evidences; that is, of the principal and the fe-
condary ; and alfo becaufe both of them are liable, in an equal degree,
to the penalty io ca(e of a receflion from tlieir evidence:— and accord-
ing to Hmie^a and jfboa Trnfaf^ becau(e, in their opinion, a repeti*
lion of the evidence of the principal witne(s before the Kdzct is necef-
(ary
io4o»
712 EVIDENCE. Book XXF.
fary for tiic cftabliHiment of proof; nnd therefore the circumftance
which cilabliflies the proof ought to be expla'uied.
-ATtcSitioc U The attcftation of evidence is not admifiible excepting where the
only incifc principal witneflcs have died, or have departed to a diftance of three
^^^^'^^'^jj days journey or upwards, or are {o iick as to be unable to attend at the
•^[ft^ntpUce) aflTembly of the Kazec. — The reafon of this is that the attcftation of
the prinury evidence is admiffible only ifrom neceflity ; and this ncccflity cxifls only
*'""* ' where the. principal witnefles are unable to give their teftimony per-
fonally, which mability exifts in all thefe cafes. — ^It is to be obfcr\'ed,
that, in cafe of tlie abfence of the principal witnefles^ the difhmce
mud be eftimated by the time requi(ite to travel it ; becaufe the ia-
capability of appearing to give e\'idence is founded on the diftance,
which the law efticnates from the length of time. It is related, as
an opinion oiAboo Toofaf^ that if the abfent perfon be at a place io
(ituated as that, having occafion to appear in the aflembly of the Kasu
in the morning, he could not return to his family that day, in that cafe
it is lawful to accept, for the prefervation of the rights of mankind,
an attefhtion of his evidence. Lawyers, however, remark that the
former dodlrine is the moft authentic, as in this btter cafe there is
no great inconveniency ; and Aboo Leys has alfo given this expofitioa
upon the point.
ThtMefi^ The judification of the original witnefles by the fecondary is ad-
^^^at^^ mitted, becaufe they are capable of being purgators. — In the (ame
tSSifofthe n^anneralfo, the juftification of one witnefs by another wttnefs is
frimarj wit' x^alid, for the like reafon ; and al(b becaufe the efFe£l of it is advanta-
geous to him, fince the Kazee will in confequencc of it pafs a decree.
It i.' likewife to be obferved, that this degree of advantage does not
fubjed a juft man to any degree of fufpicion ; .in the Ame manner as
he lies not under any fufpicion from the delivery of his jwn evidence.
A juft man indeed cannot poflibly lie under fufpicion from his ju^-
7 cation
Chap.V. evidence, VS
cation of another witnefs, bccaufc his tcftimony is credible in itfelfy
although that of the other be rejedted.
If fecondary witncffcs remain filcnt with refpecl to the juflifica- butihtlmot
tion of the principal witneflcs, it is valid ; that is to fay, the tcftimony „^1J,^'*rhI
of the principal witnefles, as recited by them, muft te admitted ; and •'?^^
the Kd%ee muft fcrutinizc into their charaftcrs from others. This is atied.
according to Aboo Toofaf. Mohammed has faid that in this cafe the ori-
ginal evidence, as recited by the fecondary witneflcs, muft not be
admitted; becaufe the validity of evidence is founded entirely on the
probity of the witnefles; and it confequently follows, that unlc/s the
fecondary witnefles explain the probity of the principals, their tefli-
mony repeated by them cannot be received as valid evidence. The
reafoningof ^^00 Toofaf \%j that the buGnefs of fecondary witneflcs is
merely to recite the evidence of the principals, and not to exhibit a
juflification of them, fince it may often happen that they areignor<int
of the probity of the principals. Befidcs, after they have recited their
evidence, it is the bufinefs of the Kdzcc to examine into their probity,
in the fame manner as if they were actually prefent.
If the principals deny the evidence recited on their part by the fe- Th« denial of
condaries, the evidence of the fecondarics muft not be admitted, be- lI^taeff^YiT.
caufeofthc want of proof, from the contradiiftion which fubfiftsbe- ""|»\>^««-
J . . , teiUuon.
twcexi them and the prmcipals.
If two men bear tcftimony to the evidence of two others, to this jftfcetttcft.
cfTe&y that " a certain woman, the daughter of a native o( Soinarcand^ L" vJISTa^
** has made an acknowledgment of one tlioufand dirms in favour of ciearDcrfoiuJ
" Z/y//," — ^and thcfe fecondary witncflTes further declare, that the thJ^^efcS^
principals bad informed them, that they knew the perfonof the wo- "^•J|J*a^^
nuuiy'-^^nd the plaintiflf produce a woman, and the fecondary wit- proved hy
hefles declare that •• they do not know whether fhc is the woman in ndk$r^
«< queflion or not/'— in that cafe the plaintiflF muft be defired to pro-
Vol. II. 4 Y duce
7«4 EVIDENCE. Book XXJ.
duce two witneflcs to tefttfy the woman*s identity; for here the evi-
dence of the witnefles tends to prove the claim upon an-uncertiin
pcrfbnt whereas the phintifF claims his right from a perlbn (pecific
andprcfent; and hence a doubt arifes, to remove which it is re-
anAfo^. quifite to afcertsun the perfon. — ^Analogous to this is a cafe where
•0 dJlM^ two witnefles bear teftimony to the evidence of two others^ that ** a
flfckcdiia. •< Certain perfon fold a piece of ground circumfcribed by particular
'^ boundaries^ and the price is due by the purchafer;**-*for here it is
requifite to produce two other witnefles to atteft that the (aid ground,
ctrcumiaibed by the faid boundaries, had been delivered oyer to the
purcha&r, who is the defendant ; — and in the fame manner alio, it is
requiftte to produce two other witnefles, in cale the defendant deny
thit the boundaries of the ground he had purchafed are the £une with
thofe dcferibed in the evidence of the witnefles ; to the end that thcfe
additional witnefles may bear evidence that thofe boundaries were the
ianfie with thofe of tlie ground in the poflSsflion of the purchafer. —
ItVJfeSlJ. ^^^ '^^ " exaftly the fame with regard to the letters of one Kdxte to
Med bv I another ;— as where one Khee writes to another, that '* t wo witnefles
oisli ht ^ ** have given evidence that a debt of one thouiand dtrms is due to a
** certain peribn, the fbn of a certain peribn, of a certain family, by
** the daughter of a certain peribn of a certain lamily, and that he
^^ muft pafs a decree for the faid daughter's payment of the £dd fum;**
for here, if the plaintiff^, after delivering the letter to the Kazee to
whom it b addrcfled, produce a woman, the Kdzee^ before he pafles
the decree, muft defire him to bring two witnefles to atteft that flie
is the lame woman as deferibcd in the letter of the other Kdsee.-^lt is
to be obfervcd that if, in either of thele cafes, (namely^ atteftation
of evidence, or of the letters c/ffOotKAue to another,) in the Ipecifi-
cation of the family of the woman, the witnefles make ufe of the term
Tameemui^ it is not valid; it bemg necellary to ipecify feme nearer
and more particular branch to which the woman is related, in order
that a particular knowledge may he acquired, whidi cannot be done
in cafe of the fpecificatioa of fe gcpc^ahranchastlut<^7MeM
5 whofe
Chap. V. EVIDENCE. 7«5
whofe defcendants arc innumerable.— It is the opinion of Come that
the word Fargbamd implies a general, and Auzcbandid a particular
faroiljr.— Some, alfo, think that the words Samarcindia or Bokbdria
are general; and (bme have faid that the reference to a fmall lane is
particular, and to a ftreet or city general — ^It is to be obferved that,
according to the ZJAir Rawdyet^ the opinion ofHanee/a and Mobam*
nied (in oppofition to that of AbiH^ Yhofaf) is that defcription is ren-
dered complete by the fpecificatton of the fffrmdfatbir ; but that the
fpecification of the particular family (which is termed F«ii/s*) is
equivalent to the mentbn of the grand&ther; iince it is the name of
a SJiant progenitor, which is equivalent to a mwrcr one.
SECTION.
Hakbepa is of opinion that a falfe witnefs muft be ftigmatizedf , A ftlft wie.
but not chaftized with blows. The two diiciples are of opinion that ^|^T.uJr
he muft be fcourged and confined \ and this is alfo the opinion o^Sbrfel.
The arguments of the two difciples upon this point are twofold.-—
First, It is related of Onuur^ that he caufed a ^fe witnefs to be
icourged with fdrty ftripes, and to have his face blackened with the
foot of a pot. Sbcokdlt, falfe teftimony is a great crime, of which
the evil refults to othert ; and as no ftated punifhment has been or*
duned for it in the law, it muft therefore be punifhed.by TMuer^
or diibretionary corredion. The arguments of Hmuefm are alfo two*
• Tovaderlfauid.tlit«lioleoftfaitpiffiigt,kispfepertoraiu^
^uAfMm dme are fucdegmi, I. SImU. U. Mdab^ IIL Fioutk, IV. Ominu
V. BshH VI. Atf»i-^ which Isft m indudedtht nesrcft kbdnd. (JUdbnjfri'j
t Arab, rmhi/kr^, fiom I^I^mt, which Bierdlj fignifies «9^ ^ amode
ef pioiftmctt teewhat finnifa^
4Y a fold.
7i6 EVIDENCE- BookXXI.
fold.— First, Sblrreeb ftigmatized a h\(t witnefs, but did not icourge
him. SscoNDL Y, prevention of the crime ta future may be efieded
by ftigmatizing, and it ought therefore to be adopted as fufficieat; for
were beating or (courging enjoined in fuch cafes, it might operate to
the concealment of the crime, and the confequent deftrudion of the
rights of others;— in other words, as being a grievous puniihmcnt,
the fear of it might deter falfe witnefles from a confeflion of their
falfehood. With regard to the rebtion concerning Omir, it evidently
alludes to the inflidion of punilhment on a criminal, as appears by the
number of ftripes, (namely forty,) and the blackenmg of the counte-
nance.
Modeofftrg. The mode of ftigmatizing a falfe witnefs« as prefcribed by SJ^sr^
aifewaodt. reebj is this.— If the witnefs be a fojourner in any public ftreet or
market-place, let him be fent to that ftreet pr market-place; or, if
otherwife, let him be fent to his own tribe or kindred, after the
evening prayers, (as they are generally aflembled in greater numbers
at that time than any other ;) — and let the fligmatizer inform the
people that *^ Kdzee Sblrreeb falutes them, and informs them, that he
^< has deteAed this perfon in giving falfe evidence; that they muft
** therefore beware of him themfelves, and likewife defire others to
*^ beware of him.** Sbimfal Aynia has (aid that afidfe witnefs ought
alfo to be fiigmathcd^ according to the two difdples ; and that the
degree of correction and imprifonmcnt ought (according to them) to
be left to the difcretion of the iiulstfr.— -(The nature of difcretiouary
correction has been already explained under the head c( Puni/kments.)
It is related in the Jama Sagbeer that if two witnefles confefs that they
have given felfe evidence, they mud not be (courgcd. The two dif-
ciples maintain that they arc to be fcourged at the difcretion of the
KSzct.
HEDJrA
( 7«7 )
H E D A r A.
BOOK XXII.
Of RETRACTATION of EVIDENCE.
IF witncflbs rctraft their tcftimony prior to the Kdzee pailing any Evidence re-
decree, it becomes void ; (that is to fay, tlic Kazie muft not pafs ^«^ ^'fr'
any decree upon it ;) for the right of the claimant cannot be eftablifhed void :
but by the decree of the Kiizee; and the Kdzee cannot pals a decree
upon contradictory tcftimony : — and in this cafe the witneiTes are not
liable to make. atonement, fince they have not occafioned any injury
to either of the parties. If, on the contrary, the KAue pafs a decree, bur not if re-
and the witneflcs afterwards retracl their tcftimony, the decree is not i'5cawe*hai
thereby rendered void ; becaufe, although the firft allegation on which p&flcd.
the decree pafled be contradicted by the latter, and although the firft
and
7i8 RETRACTATION Boor XXII.
and the laft in point of credit ftand upon an fqual footing, yet the firft,
becaufe of the fentence of the Khit having paflfed in conformity to it,
acquires a fuperiority which prevents its annulment. — In this ca(e,
however, the witncffes are bound to atone for the injury they may have
occafioned by their fitlff teftimony ; for they themfelves acknowledge
a thing which is the caufe of refpoufibility ; and fcontradiclion is no
bar to the validity of acknowledgment, as (hall be hereafter ex«
plained.
Th« fctnai- Thb retra£btion of evidence is not valid, unlefs it be nuule in the
nadelaopcA prcfcnce of the KJMi\ becaufe, being a deftrudtion of evidence, it
^^^ muft confequently be reftri^ed to that place which is particuhrly ap-
pointed for the reception of evidence,~namely the aflemUy of the
X'isrr,— (that is to fiiy, of anyXfsM whatever.) — Befides, retra£b-
tion of fidfe evidence refembles repentance of a crime ; and repentance
of a crime, if committed privately, muft be performed privately, and.
if committed openly, muft be performed openly .—As, therefore, re-
tradation of evidence b not valid, unleft made in the aflembly df the
Kix^r it follows that if the defendant (hould aver that the witnefles
had retraced their teftimony fome where out of the aflembly of the
Kbsiix and (hould either require that an oath to this tSkSi be admi*
niftered to them in the aflembly of the KisM^ or ofler to produce wit-
nefles there to prove his aflertion, yet neither would the oath be ad-
miniftered to thofe witnefles, nor would the evidence he offers to pro*
duce be accepted, fince the plea on which he proceeds (namely, an
mWiu/retradation) is of no effeft. If, on the contrvy, his plet be
of an eflTeftual nature, (as if he (hould a(rert that the witnefles had re-
traced their teftimony before a certain iCIsM, who had in confequence
pafled a decree for thdr nudcbg reparation,} the evidence he ofiers muft
be admitted, becaufe he in thisinffamoe grounds his plea upon t valid
retrafUtion*
If
Book XXII. O F E V I D E N C E- 719
If two witneiles bear teftimony that a parttcttlir fum u due by a ^^'^'^*
certain perfoii to another, and the Kiue accordingly pafs a decree for shimmy aA
the payment of it, and the wttnefles afterwards retraQ their evidence, kl^t^MT
they are in that cafe refponfiUe to that perlbn for the futn decreed ^^fi^ *
againft him ; for whoever, by a tranfgreiSon, performs an z€t deftruc- liM 10 cht
tive of another^s property, becomes refponfiUe for the fame; (in the |2IS^|
fame manner as the digger of a well on the high road ^;) — ^and in this
cafe the witneiles have been guilty of* a tranfgreflion in pving falfe
evidence, which occafioned the lofs of the defendant's property w—
Sbifii maintains that they are not refponfiUe; for they, in faA» only
produce the caufe of the deftru£don, and that is not regarded where
thofe are prelent who aAually worked the defbruftion, namely (in the
prefent infbnce) the Kha and the plauitiff.— In reply to this, our
dehors argue that to impofe the refponiibility, in the cafe in queftion,
upon the aAual operator of the deflruflion (namely the Kbui) is im«
practicable; becaufe, in paifing the decree, he aAed as it were from
neceflity ; and alfo, becaufe, if a Kixa were thus liable to rcfponfi-
btlify, no one would accept the office of ICfe«r, from an apprehenfion
of being fubjeft to fuch penalties.— In the fiune manner alA, it is im«
prafticable to exaft the compeniation from the plaintiff, becaufe the
decree of the Kaui takes ettcd independant of him. In this cafe,
therefore, regard is neceflarily had to the producer of the roi^.— It is P^^M iIm
to be obferved, however, that the witnefles do not beornie refponfiUe bna&idl/
unlefs the plaintiff obtain poffeffion of the property in queftion, who- •^gyf
ther it be fubfbnce or debt; becaufe the deftruftion of it is not efU« ^^^
blifhed until after the feizin of the plaintiff; and alio becaufe the de-
fendant is not, until then, fubje£tcd to any thing except the mere^^
Itgafion of debt f whereas what he is to take from the witnefles xs 4V«
tualfubflmtci ; and it is not hwful to take fubfbnce as a compenfatkm
* Ifa perfen dig a wdl in die high road (where no pcfGm it entided to dig a mO,
and which it of courfe %im^Mfm)\m iiliabkloaiiiiefor aafacddaic which asay
happen by peopkfrUiiigiaCo if, dec Thiiisfull/cxpfattflediftlicatii«ef/«w»*
for
720
If iMwicnefi
ibos retrtA»
he aiOQCf for
ajMt/#i/ofthe
damaf e s
and tSe Cime
of any num-
bcr who may
rctraA,where
one vvtinefs
perievcm in
nisceftimony.
RETRACTATION
Book XXIL
for the mere obligation of a debt, fince compenfation can only be made
in zfimlar^ and there is no fimtlarity between debt 2i\Afubfiance.^lU
in the cafe i;i queftion* only one of the witnefles retrad his evidence^
he becomes rcfponfible for a half oirht property: for it is a rule that
where part of the witnefles retrad, the right fhall remain eftabliflied
fo far as relates to the remaining witneffes. — ^Hence if three perfons
give evidence concerning property, and one of them afterwards re^
trail his teftimony, he is not fubjeft to any refponfibility, bccaufe the
whole of the right remains eftablifiied in virtue of the two remaining
witneiTes. The reafon of this is that the right of the claimant is efta-
bliflied becaufe of the complete proof, namely, the tellimony of two
witncfTes. If, however, another of tbofe three witnefles afterwards
retract his evidence, the two receding witnefles are in that cafe re^
fponfible for one half of the property, fince, in virtue of the exigence
of one witnefs, one half of the right remains in force.
Cafetof rc-
tra£Ucion
where the
wiinefleicon-
fiftofboch
mmiit MxAJt*
If one man and two women give evidence, and one of the women
afterwards retrad her teftimony, (he is liable for one fourth of the
right; becaufe, in confequcnce of the exifting evidence of one man
and one woman, three fourths of it ftill remain in force. If, alio,
both the women retra£k their teftimony, they are refponlible for an
half, fmce in virtue of the exifting teftimony of one man an half of
the right ftilt remains in force.
If one man and ten women give evidence, and eight of the women
afterwards rctrad, thofe ei^it are not liable to any compenfation,
fince the remaining evidence furnilhes complete proof. If, on the
contrary, nine of the women retraft, thofe nine are refponfible for a
fourth, fmce the remaining evidence of one man and one woman efta-
blifhes three fourths of the right.— If, in the cafe in qucftion, the
wbok of the witnefles recraft, the man \% in that cafe refponfible for
one fixth of the right, and the ten women for five fixths, according to
Haneefa. Aboo Toofqf\io\A% that tlie man is liable for an half, and the
ten
Book XXII. O F E V.I D E N C E. 7^*
ten MTomea for an half; becanfe, although they greatly exceed in
point of number, yet they are in h€t only equivalent to one man,
fince their evidence is not admiffiUe unlefs it be in conjuncltou with
that of a man. Haneefa^ on the otKer hand, argues that the evidence
of every two women is equivalent to that of one man ; bccaufc the
prophet, on account of the weaknefs of their underflanding, has or-
dained that the evidence of two women (hall be equivalent to that of
one man. Hence, in the cafe in queftion, it is the fame as if fix men
had given evidence and had afterwards retra£led it. — If the ten women
retract, and not the imm, they are refponfiblc for an half of the right,
according to all our doctors, in conformity with the rule before-
mentioned.
If two roon and one wonian give evidence in a matter of property,
and all of them afterwards retraft, the whole of the refpoafibility
it^i on the two men, and none on the woman, becaufe one woman
is no more than half of a witnefs, whence the law regards not her in
this cafe, inafmuch as no effect refults from the mere part of a
caufe.
If two witn^flie give evidence concerning a woman, of her bcbg Therctna*-
married on a Mtbr Mijl^ or fropcr dower*, and afterwards ret raft their ^'®" ^^^^'
teftimony, they arc not bound to make any compenfationf ; and fo m«rn«tc md
iikewife, if they teHtfy to any thing y&jr/ of the proper dower; be- ^jTuk.
caufc the advantage to be derived from the woman's pcrfbn is not an *!^^''*'*'
article of value where it is bft to her by falfc evidence; for compenfa- nfpolSmty.
tion, in caie of the deftru£lionof any thing, implies the return of a
iimiiar ; and there is no fimilarity between fubfiantial property and the
coiumbial eiijoymeat*
• This cafe fuppofes that the woman claims zJlipulateJ dower, freatir than her proper
dower, and that the huihand endeavours to refift her daioi by evidence*
t That is, they are not to compen(ate for the difference
Vol. 11- 4 Z
7" RETRACTATION Book XXIL
Ip two witneiles give evidence concerning a mint of his having
married a woman on a proper dower, and afterwards rethSt the famev
ftill they are not bound to make any compeniation, although by their
teftimony they have deflroyed the property of that man; becau(e the
deftruftion in this xnftance is attended with, an equivalent, inafinudi
as the connubial enjoyment is confidered as an article of value, when-
ever it becomes ther/^i6/ of any* one; and deftrudion attended with a
confideration or equivalent, is the fame, in eSe&, as no deftrudion.
The ground of this is that refponfihility is founded upon (imilarity.
Now there is no limilarity between deftruftion with an exchange and
deftru£tion without an exchange. If, therefore, in the cafe in que(Hon,
a compenfatinn were taken from the witnefles, it would be a deftruc-
tion of their property without any thing in return.— If, however, the
•witnefles were to teftify to any amount beyond the proper dower, and
afterwards retra£fc, they are in that cafe reiponfible for the excels, as
having deftroyed that much without any confideration in return.
Thtrttnat- If two witneflcs bear evidence to a fide for a price tantamount to,
SmfTa or greater than, the value of the tbbg fold, and afterwards retraft^
*^{gyy they are not in that cafe IbUe to any compen&tioni finoe deftruOioa
fpo^UB^ attended with an equivalent is, in effeft, m deftrudion.— If, on the
llLlbMa^ contrary, they (hould give evidence of the (ab/or a price Ufi than the
St^iltr^ ^^^» **y ^^ ^^ '^^^ "^^ refponfiblefor the deficiency of value, be*
cauie, in that amount, they have occafioned a deflniAion without
any equivalent. The law here applies equally to fide witb^or without
an option to the feller; becauie, in the cafe of an option, the caufi^
of right of property is the original/iAr, and not the determination of
the i»//iM.— The efieft, ther^re, is leferred to the/Ub, upon the
determination of the options Md hence the dcftruftian is referred to
the evidence of the fale.
BoorXXIL OF EVIDENCE. 7»3
If two witnefles give evidence of a man having divorced his wife JJ5[|S^f7|j^
prior to confummationy and afterwards retraft, they are in that caie fvidcfccto
rcfponfible for a moiety of the dower; becaufe they have eftabliftied £^"Si£^
upon that man a thing which ftood within the pofTiUlity of dropping, j[;]^^j^j^Vi^|
(in other words, which might perhaps have bera altogether cancelled, ihe dower,
by the wife apoftatizing from the faith, or admitting the ion of her
huiband to carnal connexion * ;)-~and alfo, becaufe feparation prior
to the confummation is equivalent to an annulment of the marriage,
and therefore annuls the whole of the dower, as has been already ex-
plained f; but afterwards the half of the dower is efiabliflied de naw^
in the manner of a Matdt or prefent |, and hence the £ud half is ren-
dered due by the teftimony of the wiuiefles.
If witnefles attcft that a certain perfon had emandpated his flave, wimeiTes re-
and afterwards retraft their teftimony, they are in that cafe refponfible e'^i^e*© '
to the perfon in queftbn for the value of the faid flave, becau(e of- manvmiffioii
their having deftroyed his property in the flave without any equivalent the ttloc of
in return.— The right of l^/Ai, moreover, with refpeft to the flave, •^^*^*
kAs with that perfon and with the witnefles; becaufe as the emanci-
pation of the flave is not, on accwnc of their refponfibility, afcribed
to their teftimonjr, Ji fellows that the /f7//tf does not go to them.
If two witnefles hear evidence againft a perfon, in a cafe of reta- WitadrctK.
liation for murder, and then retra£l their teflimony after the perfon ^S^^^ ^
fCtft*
has been put to death, they are in that cafe bound to pay a Deeyat^ or |?^^ ^*
fine of blood, but are not to fufTer death by way of retadiation. Shrfa Ut mc»#!^
maintains that th^ are to fufler death, fmce they were the efficient
caufe of death, inafmuehas the retaliation was executed on the ftrength
of their evidence; and they therefore fefemble a MbiriB^ or cmnpelkr^
(in other words, they compel the commiflion of murder ;)~nay, they
are ftill more criminal than a Ntokrib^ inafmtich as the aveogerof Mood
• Vol. L p. 182. t Vol. I. p. 145. X VoL I. p. las.
4Z a 10
7-4 RETRACTATION Booic XXII.
in a cafe of murder, is aided in bringing the mwderer to juftice;
whereas a peribn under compullion is prohibited^ by the law, from
putting" to death *. The reafouing of our doctors is^ that the wit-
neflcs, in this cafe, cannot be conndered either as aftual perpetrators,
or as inllrumental caufes of the Uood/hcd; for nothing can be confi-
dcred as a caufe except fuch a thing as prefles upon, and joins to, the
agent; and the teftimony of the witncflcs cannot be confiderediiithis
light, (ince, notwithftanding they furnifh legal grounds for the reta-
liation, yet pardon and forgivenels being benevolent a£ts, the probaUc
confequence is that the avenger of blood will pardon the peribn
againft whom they bore evidence. It is otherwife in a cafe ofcompul*
pon\ (or the peribn compelled is induced to execute the murder with
a view to lave his own life, which the compellcr threatens to take
from him in caieof his refufal; whereas, in the caie in queilion,
there is no compulfion ou the avenger of blood to execute the retali-
ation ; on the contrary, he is at free liberty either to pardon the other,
or to execute the retaliation ; and where a man acls from free liberty,
and not from any neceifity, the caufe of his anions cannot be afcribed
to the witnciles: at leail, it muil be allowed that there is a doubt with
refpecl to their l^eing the caufe; and the exiilence of a doubt is pre-
ventive of retaliation. The Dceyat^ of fine of blood, however, takes
place ; becaufe that is a matter of property, and, as fuch, may be
eilabliihed, notwithilanding any doubt which may happen to at-
tend it.
Smiui^ If fccondary witneflfes f retraft their evidence, they are refpon-
iftaim'iheir fible; fmce the deilruftion of the defendant's property is referred to
wSfiblV'* them, becaufe of their giving evidence in the ailcmbly of the JiT^nirr.
* This will be more fulljr and clearly underftood by a reference to the article IkrA^ or
\ Meaning, witneflcs who attcft the evidence of other witnefies. (See Chap. V. of
the preceding book.)
If,
Book XXII. O F E V I D E N C E. 725
If, on the other hand, the primary witneflcs rctraft, alleging that for the dam.
they had not authorized the fecondary witnefles to attcA their evi* che/rfJiMiy
dence, they are not refponfible, iince they deny the evidence which "l^^^^
occaiioned the deftruftion of the property of the defendant. In this ^^e if cbgr
cafe, moreover, the decree of the Kdzee^ occaiioned by this teftimony, jtow,
is not rendered null, fince the denial of the primary witnefles is fuf-
ceptible of doubt, (that is, it may either be falfe or true,) and the de-
cree of the Kdzee cannot be reverfed by a dubious circumftance; in the
fame manner as it cannot be reverfed by the rctra£Ution of evidence,
after it has pafied on the (Irength of that evidence.— It is otherwife
where the primary witnefles make the denial prior to the pafling of a
decree; becaufe in that cafe the Kizee would not pafs the decree on
the ftrength of the evidenoe of the fecondary witnefles. — If, how-
ever, the primary witnefles avow that they had authorized the evi-
dence of the fecondary witnefles, but that they had committed an
error in fo doing, they are in that cafe refponfible for the lofs that
may have been occafioned. — ^This is according to MoiammeJ.'^-^ht
two elders are of opinion that, even in this cafe, the primary wit*
nefles do not become re(ponflble; fmce the decree of the Kdzee paflcd
upon the evidence of the fecondary witnefles, from the neceflity under
which the Kazee lifit-of proceeding on the proof before him, which in
this cafe is the evidence of the fecondary witnefles. — ^The reafoumg
of Mohammed is that the fecondary witnefles do only repeat the evi*
dence of the pr'mcipals ; and hence it becomes in efie£t the iame as if
the principal witnefles were themfelves prefent.
If beth the primary and the (eeondary witnefles retraft their evl- Cak^ttt^
dence, the two Elders are in that cafe of opinion tjjat compeniation is SffSJ?
due only by xht fecondary witnefles, becaufe of the decree having pai&d «^f<««"^
on their evidence. Mohammed^ on the contrvyt is of opinion that ^ ^
the defendant has the option of taking the compeniation ehher from
the principal or the fecondaiy witnefles; becaufe (according to (he
do^ne of the two difciples) the decree pafled on die evidence of the
5 fccoadaries.
7i« RETRACTATION BoosXXIL
ieooodiriei,— or (accordinf to hb owa dodrine) k ptfle$ oo the eti-
denoeoftheprincipak; and hcooe the defendaot has the optiooof
taking the compen(atk» fnm wbom&ever of the two he pleafea :—
butasoriginaUt/anddependaocjaieofdtftfentnataret, it it not per-
mitted to unite both the prinetpoli and the feoondaries in the payment
of the compenlatioof -that is to £7, the deundant cannot take it from
both.
JJ^J3fci* ''» "* *^® •**'*** ^^*» the fecondary wttnefles affert that the pri-
•iiitrtiAf tht marjr wttnetlci had either been guilty of fallehood, or had committed
mor «r tht an error in their evidence, die KSue muft not attend to this aflertion,
iSk^^ becauiehis decree, at having pafled and iflued, cannot be afTefted by
McAA. any sflertion of theirs. And n dm cafe thfe iecondary witnefles are
not liable to any compenfilioa, finee diey have not retnfted their
own evidence but iMmmcfdly reperted the evidence of the prin^al
witaeflb, notwithftandbg th^ lud fetn£ted it.
i^|S^"n*** Ir purgMors recede from dicir jofBficatbn, diej become le^Mn-
SSILiStt- fibkb according to ASmas^— The two diidples are of opinion that
*'«•»'«* dwy do not become refpoofible, becaufe they have merely performed
a generous aOion in behalf of the witnefles, and dMrefoe rdanUe
witneflb who bear evidence to the marriage of « perlbo aocuied of
whoredom*, and who, in caie of retra£ting thdr evidence afler the
floning of the per(bn to whom it rehted, io not become reiponiibk
for the fine of bkwd. — The reaibning of Huutfa is that juftification is
the cauie of credit given to witnefles, inafmuch u the Kbue proceeds
not upon the evidence itfelf, but i^nni the juftiflcatioo of it.— Hence
the joftiflcation is, in efleA, die moving caofe of the decree.— It »
etberwife with witnefles to the marriage of a periboaocnfed of whore-
dom, becaufe in that inflaace the drcuroftanceof the accofedbdng «
MffTM/peribn is parttcularly eflential to induce hpdation f.
•Litmll]r-^«habtac«videMetei^''(SeeV«II. p.4t.) tS«V«I.IL^f;
3 1»
BooKXXn- OF EVIDENCE 7x7
If two witnefles give evidence of a Tameen (or fufpennon on a Cafe 61 n^
condition) of divorce or emancipation^ and tv^o other witneifes give JJJ^JSkl*"
evidence that the condition had taken pbce^ and both parties af- miaumifion
terwards retract their evidence, compenfation b in that cafe due only
bjr the witnefles who attelled the deed. of Tameen^ which i$ the caufe
of the damage, and not by thofe who attefted the occurrence of the
evtot on which the divorce or emancipation was fufpended; becaufe
the decree of the KSzet proceeded on the evidence to the deed^ and not
on the evidence to the roifi/rV/oji>—-*If only the witnefles to the occur-
rence of the condition retrad, there exifts in that cafe a difference of
opinion amoagft the Haneefiu dolors. — It is to be obferved that by the
dharcehttt mentioned is to be underilood divorce before confumma*
tion; for in a cafe of ^"^orccfubfiqueni to confummation neither party
of the witnefles are liable to make compenfation^ becaufe the wife's
right to her dower is eftabliflied by the confummation *•
• See VoLL p, 123.
BKD OF THE SBCOHD VOLUME.
ERRATA ifi the SECOND VOLUME.
Fi^ 12, line 11^ fir •< of bleffine^" r. «< ofiir Ucfluigii.'*
a6t (noce,) — /vfla, x.fiicau.
31, (note,) — Cffulata, r. C^pttlaior.
3^, line f8» — fufpenikm* r. fiiipickxu
48, {nMhi — Mnikka^ t. Motxhr.
50, line 5, «- fait)eiioed» r. fentenee.
76, — 30t — 74^f r. 7-^.
83t*«<*- 8» — " or (laicinjy namely,***-* r. << or Larciny, (namely,**-
84, ■ ■ HOf — 4ttrmSf r. ifinv.
■*», ■ 30» "* oonoofnUon, r. oonwMation*
icS, — — 3, «— ind;^ r. inclirAd.
'3^» •— • o, "* ol^ r# q£
163,—— I, •-« /iMiciai, r. iiidbr.
166, ■■ I, — Imiamf r. i!ii«iir.
tio, .——27, — obtained, r. bfataim.
936, 1 1 12, — • penony r. power*
396, — — 6, — •* manner in the,** r. «« manner as in the'*—
43Sf 29, — Icflcr, r. kflbr.
45I9 —.14, — whrdier, r. whither.
452, ^— — 2, — ftnmgen, r. Aianger.
484. 19» »n *' fcimj/^the price,** dele ^.
492, 24, — relatet, r. exiftt.
503, (title Cbap. X.)fir other, r. othen.
508, f 3, — fell, r. fell.
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607, line 23, for Ataba^ r. Mobeel.
690, (notejyir depravjd* r. icpneveJ.
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BARISBT1 ZBITAR BY MAOLANA ASHRAP ALI
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tabuOmi nisab by maulana zakariyya
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the feckings of Islan and will help a nan to fdkM*
his religion easUy. PRICE RS. MO^OO
OSWAI RASOOL-B-AKRAII BY DR. ABDOL HA(
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14.S im X 22.S en 468 pp.
\ complete code of life. How to live and how
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DISTRIBUTION OP WEALTH IN ISLAM
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SIX POINTS OF TABLIGH BY MAULANA
12 en X 18 en 88 pp. MOHAMMAD ILYAS
This book Is very useful for those persons, who
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THE LIFE OF MUHAMMAD BY MUHAMMAD
S.A.W. HUSSAIM BAIKAL
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