capitally, till his sentence should, on a report of the case, have been confirmed by the Nazim ; and thirdly, a revenue court, which originally was also held by the Zemindar, but in later times by an officer of the Dewan's appointment. It is generally believed, that from these provincial courts an appeal lay to the correspondent judicatures in the capital; but the appeal was, in fact, usually preferred to the government, which was in the habit of exercising an unlimited discretional power over all the judicial proceedings of the country.

The laws enforced in the courts which have been mentioned, were the Mahomedan. This code, and particularly the criminal division of it, has been much the subject of European animadversion; nor, as it should seem, without considerable reason. Its frugality in the use of capital punishments, may appear to be nearly counterbalanced by its permission of impaling, the mutilation of limbs, flagellations atrociously severe, and the exaction of confessions by means of the torture. Independently of any reference to the penal or judicial processes which it enjoins, it seems chargeable with not a few defects in point of principle; but to convey a just impression of its general tendency and genius, would, in the present place, be impossible. No living and acting body of laws can be fairly described, without a specification of so many minute particulars, both in the provisions of the laws themselves,

and in the dispositions and circumstances of the people among whom they are established, as would be totally incompatible with the brevity requisite in the present sketch. All that can be done, apparently is, to select for exhibition two or three features of a code, so marked and so important, as to render it certain that, by whatever lights, and with whatever accompaniments they might be seen, their character could not be materially affected. In this view, it may not be improper shortly to bring before the reader some of the peculiarities of the Mahomedan law, in its regulations with respect to one of the heaviest offences against the peace of society,that of murder.

It is among the most elementary maxims of civilized jurisprudence, that the life of every citizen is the property of the state. The Mussulman law, however, regards murder as a crime, rather against the individual, if such a solecism may be allowed, than against the community. 'Under that law, therefore, although the murderer be capitally punishable, yet the punishment is placed, both in name* and in fact, wholly on the basis of retaliation; on this ground, it is demandable only by the heirs of the deceased, or, if he was a slave, by his master, and, what seems yet more singular, if inflicted at all, it must be inflicted by the immediate hands of those persons.

* Kisas or retaliation.

From this doctrine, traces of which may be discovered in the antiquated codes of Europe, and even of this country, the obvious deductions actually admitted under the Mahomedan government of Bengal, are most portentous. No man is pu nishable for the murder of his own slave; for, in that case, he would commit the practical absurdity. of retaliating on himself. No man is punishable for the murder of his child, grandchild, or other descendant; for resuming a life which he himself has bestowed, he is only considered as liquidating an outstanding account. So monstrous an exemplification of the rule, though undoubtedly conceded by the Mussulman law, can seldom, it may be hoped and believed, take place; but others, not far less shocking, were, in Bengal, of daily occurrence. The life of the murderer being forfeited to the heir or the master, the heir or the master was, very consistently, authorized, either to remit the penalty altogether, or to accept.in lieu of it a sum of money. In consequence of this liberty, it is plain that every man lay entirely at the mercy of those who were to inherit his. estate; and, at all events, the fact is, that compositions for murder were notoriously frequent, under the native government of Bengal.*

*Harington's Analysis of Laws and Regulations of Fort William, Part II. § 1, 2. Hastings' letter of 10th July, 1773.; Proceedings of Bengal Council,

The Mussulman code is not more defective in its doctrines as to the principle of the punishment, than in its definitions as to the nature of the offence. The criminality of murder it very properly places in the intention of the perpetrator; but, in the application of this idea, it does not require that the murderous intention should be deliberate. On the contrary, the pre-existence of the intention, even for a moment, is construed to be malice prepense. Although, therefore, homicide is in some cases justifiable under the system of the Koran, yet, those cases excepted, it is never allowed to derive any excuse from the impulse of sudden provocation. This regulation may perhaps be thought to err in favour of justice; but it is connected with others,—perhaps it originally led to them,—of a very different description. The evidence of a murderous design, the Mussulman law does not leave to be gathered from the circumstances at large of the case; but confines it by certain technical and apparently very preposterous rules. To cause wilfully the death of a man by an instrument formed for shedding blood, or by fire, is undoubtedly murder; but various other methods, however deliberately employed, of compassing the same end, the most renowned commentators resolve into culpable homicide,*

* Shibah-i-und; or wilful-like. That is, as it should seem, with an evil but not a murderous intent. See Harington's Analysis. Part II. § 1.

an offence subject only to a fine. Death by the iron edge of a hoe or spade, is generally reputed to be murder: whether death by the iron' back of the instrument be murder, is disputed; but all agree that it is not murder when inflicted by the wooden handle. According to some of the highest legal authorities, it is not murder to destroy a man wilfully, either by severe flagellation, or by keeping him in cold water in the winter season, or by exposing him bound hand and foot to the summer sun, or by throwing him from the roof of a house, or into a well; and it is the concurrent opinion of all the best commentators, that it is not murder to destroy a man wilfully by poison, or by throwing him, bound hand and foot, to be devoured by wild beasts.

These distinctions which, under a certain appearance of refinement, are in fact not more fantastic than they are barbarous, possibly owed their origin to that confusion between pre-existent and malicious intention, which has already been noted as a characteristic of the Mussulman system. If all intention, whether momentary or deliberate, equally exposed the offender to the last penalty of the law, it became at least necessary that the existence of the intention should be strictly proved. If sudden resentment was in no degree to palliate the homicidal act, it was no unnatural proviso, that at least the tendency of the act to produce' homicide should be obvious and palpable. That is, it was to be so obvious and palpable, that even