I. English Of the Digests of Muhammadan law in English, the LECTURE first appears to be the Chapter on Criminal law of the Muhammadans as modified by regulations. This is incorpo- Digests. rated in Harrington's Analysis of Bengal Regulations. The above, so far as it extends, is said to have superseded reference to any other work on the subject. ANNOTATIONS. substance, he has not thought it necessary to notice, as it runs regularly through all the work, and he therefore conceived that a prefatory explanation of it would suffice for the whole. In the objections and replies, which frequently occur, the Moulavís have observed an arrangement, somewhat varying from the original, and which they probably adopted for the sake of greater perspicuity. The only remaining difference between the Arabic text and the Persian version of it worthy of notice, is, that in the latter we have a particular definition of terms, a point in which the original is totally defective, but which is, doubtless, indispensably requisite to persons not conversant in the Arabic tongue." The learned translator then adds: "It may perhaps be urged that, instead of having recourse to an intermediate version, the translation should have been made at once from the Arabic, by which means the work would have been presented as a more close and accurate picture of the original. Had the translator been at liberty to pursue this plan, much labour would indeed have been saved him; some reasons are, however, to be assigned, which, when duly considered, will perhaps be found to give an indisputable preference to the mode that has been adopted. 1. As the Persian version was designed for the use and instruction not merely of the English scholar, but also of the Native Magistrate, and was, therefore, likely to be introduced into practice, it was indispensably requisite that the English translation should be taken from it rather than from the Arabic, in order to preserve an exact and literal uniformity between the two standards of judicial determination. 2. The Arabic is remarkably close in its idiom. Hence a literal translation from the Arabic would have left the sense, in many places, as completely unintelligible to the English reader as the original itself. In following the Persian version, therefore, (if we except the interpolations already mentioned and accounted for,) the translator has done * Vol. I, p. 223, et seq., 2nd edition. LECTURE I. In his abstract of the Bengal Regulations, Mr. Richard Clarke has also given a concise exposition of the Muhammadan Criminal Law. ANNOTATIONS. little more than what he must have done, at any rate to render himself understood, namely, given the sense in a fuller and more explicit manner than the original author, but without in any degree departing from, or altering, the tenor of the text. 3. The persons employed in the composition of the Persian version were themselves possessed of deep legal knowledge, qualified, both by their academical rank and judicial stations, to pass decrees, and perhaps as well versed in the Mussulmán institutes as their author. Hence their interpolations proceed from an authority perfectly competent, and being (as in many instances they certainly are) of essential utility, must be considered as a valuable addition to the text. Their interpolations are, in fact, nothing more than explanatory remarks, inserted in the body of the work instead of being subjoined in the form of notes. Had the translator conceived himself at liberty to use his own unlimited discretion, he could perhaps have adopted this mode, as being more agreeable to the literary fashions of his own country, in all except original compositions. But this is a plan seldom adopted by Oriental writers; and the translator had a particular duty prescribed to him, which (except in some very particular cases) he considered himself bound implicitly to fulfil, for it was his business to give the Persian version of the Hidayah an English dress both in order and substance, since otherwise it would have been impossible to preserve the exact uniformity necessary to authenticate the English text in cases of future reference or appeal.-Hidayah, Prel. Disc. pp. xlv—xlviii. From what is above stated, the reader will be able to judge the merit and demerit of the Persian version as well as of the Translation made therefrom. Had the Persian Translators interpolated those explanations, expositions and illustrations from any of the commentaries of acknowledged authority, such as the Inayah, Kifayah, &c., with the mention of the author's name, they could, and would, have been considered as authorities. As to the learned Translator's remark, that 'the persons employed in the composition of the Persian version were themselves possessed of deep legal knowledge, qualified both by their academical rank and judicial stations, to pass decrees, and were perhaps as well versed in the Mussalmán institutes as their author,' I have to inform I. The Principles of the above law, as it was in force in LECTURE Bengal, were laid down by Mr. Beaufort in his elaborate and excellent Digest of Criminal Law for the Presidency of Fort William. ANNOTATIONS. my readers that the author of the Hidayah was a Shaikh-ul-Islám ;* that being a Mujtahid, was himself qualified to pass decisions upon cases (real or supposed) which should operate as a precedent with others; that his work is said to have, like the Kurán, eclipsed all the (law) books composed before it; and that the Muhammadan law being sacred to the Musalmáns, they do not acknowledge any lawyer to be an unquestionable authority unless he excelled by eminent virtue and piety as well as by learning, all of which were combined in the author of the Hidayah, and in all of which he excelled all the authors of Digests. The subjoined is a portion of what is mentioned with respect to the Hidayah in the Kashf-uz-Zunún by Hájí Khalifah, who is a high authority not only among the Muhammadans but also among the European Doctors.† هداية في الفروع لشيخ الاسلام برهان الدين علي بن ابي بكر المرغيناني قال الشيح اكمل الدین روی ان صاحب الهداية بقي في تصنيف الحنفي الكتاب ثلث عشرة سنة وكان صائما في تلك المدة لم يفطر اصلا وكان يجتهد ان لا يطلع على صوه احد فكان ببركة زهده و ورعه كتابه مقبولا ( بين العلماء ) - و هو الذي قيل في شانه ان الهداية كالقرآن قد نسخت * ماصنفوا قبلها في الشرع من كتب . فاحفظ قواعدها واسلك مسالكها * يسلم مقالك من زيغ و من كذب * . كشف الظنون عن اسامي الكتب و الفنون The translation of the above is as follows:- Shaikh Akmal-ud-Dín states that the author of the Hidayah took thirteen years to compose the work, during which period he fasted (every day) and did not break his fasting (during day-period). He took a great care that none be apprised of his so doing. By the blessing or The head of religion, i. e., the high priest, and the Mufti or lawgiver of Mussalmáns. See Kashf-uz-Zuún. † Vide Morley's Digest, Introduction, page ccxlii. i K LECTURE But, since the promulgation of the Indian Penal Code, the works as above have become almost useless. ANNOTATIONS. merit of his austerity and abstinence his book became approved (by the learned). So that it is said in respect thereof: "The Hidayah, like the Kurán, has rendered useless the books on law that were composed before it." "Commit, therefore, to memory its principles, and follow its vestiges or directions, and (then) what you say will not be erroneous and fallacious."* Thus no author of a Commentary or Digest even of Arabia can be compared with the author of the Hidayah, much less a Moulaví of India, be he ever so learned a man. The very idea of the interpretation of law given by a Moulavi or Moulavís of India being equal in authority with the Hidayah is considered to be absurd not only by the Muhammadans of other countries, but also of this country. It is, on the other hand, universally declared, that the Persian, as well as the English translation (the latter being made from the so-called Persian version,) are not translations of the Hidayah (in Arabic), but as of a different book containing the text of the Hidayah with other matters as already stated. It was for this reason that I had been requested by an eminent barrister, still attached to the High Court, to make a translation of the original Hidayah: and, accordingly, I had commenced the work, and rendered in English the Chaptér on Sale; but finding that my pains and labours in properly executing the work would far exceed the reward, I was dissuaded to continue with it. In translating the above Chapter, I, how *Professor Gustavus Fluegel's version of the above passage runs thus:-"El-Hidayet fi el-forú, institutio recta de articulis juris (Hanefitici) derivatis, auctore Sheikh el-islám Borhán-ed-dín Alí Ben Abi Bekr Marghinání Hanefita." "Sheikh Akmal-ed-dín tradit, auctorem libri Hedáyet in eo componendo tredecim annos consumisse jejunioque nunquam soluto per hoc spatium jejunasse, et omnem operam impendisse, ne quisquam se jejunare animadverteret. Ob benedictionem ab ejus abstinentia et temperantia proficiscentem liber hic (a viris doctis) magno cum applausu exceptus est, et hi sunt versus, qui ejus pretium describunt:" "Certe Hidayet Corani instar jam describendo vulgata est. Manda igitur memoriae praecepta ejus fundamentalia ejusque vestigia sequere ; Tum oratio tua ab erroribus incolumis erit et mendaciis."-Kashf-uz. Zunún, vol. vi, p. 479. I. An abstract of Muhammadan law, which is from the pen LECTURE of Lieutenant-Colonel Vans Kennedy, will be found in the ANNOTATIONS. ever, had a good opportunity of collating the existing English translation with the original Hidayah, and I subjoin the first passage in original of the above Chapter with its translation made as faithfully as it lay in my power to make, and also the translation which was already made from the Persian version, in order that the reader may collate them with the original, and form an idea of the translation which is still passing as being the version of the Hidayah : مثل ان يقول البيع ينعقد بالايجاب والقبول اذا كانا بلفظي الماضي . احدهما بعت والآخر اشتريت - لان البيع انشاء تصرف والانشاء يعرف بالشرع والموضوع للاخبار - قد استعمل فيه . فينعقد به - ولا ينعقد بلفظين احدهما لفظ الماضي والاخر لفظ المستقبل بخلاف النكاح وقد مر الفرق هناك. و قوله رضيت بكذا او اعطيتك بكذا او خذه بكذا في معنى قولة بعت معناه والمعني هو المعتبر في هذه العقود ولهذا يودي واشتريت - لانه ينعقد بالتعاطي في النفيس والخسيس هو الصحيح لتحقق المراضاة . قال واذا اوجب احد المتعاقدين البيع فالاخر بالخيار ان شاء قبل في المجلس وان شاء رده . هداية جلد ثالث صفحه ! . Translation:-"Sale is contracted by declaration and acceptance if these be (expressed) by two words of the past tense (in the indicative mood), as when one of the two (contracting parties) says, 'I have sold,' and the other, I have bought;' inasmuch as, sale is the taking place (insháa) of a transfer; and the taking place of a transfer is known from (the precept of) the law. In general acceptation, however, it (the word 'inshaa') signifies announcement,' in which sense it is used (in the dictionaries): so it is thereby contracted, and not by two words, the one of which is a word (verb) in the past tense, and the other in the future tense, or in the indicative mood, (though) it is otherwise in marriage : and the difference (between the contracts of sale and marriage) is known in this place. Thus the expression, 'I am contented with this,' or 'I have given you for this,' or 'take it for this,' used by him (one of the contracting parties), is the same as his saying: 'I have sold,' or 'I have bought,' because they indicate the meaning of it (the sale), and it is the meaning to which regard is to be had in such contracts: hence it may be contracted by mutual surrender (tuátí) of the goods of great as |