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Chapter I.—General Character of the Persian Legislation,
GENERAL CHARACTER OF THE PERSIAN LEGISLATION.
In treating of a Mahometan state, it is necessary to examine at one and the same time its religion and the laws to which it is subject, because the former serves as a foundation to the latter. The Koran is both a religious and civil code; just in the same manner as the sacred books of many nations of antiquity, and of the Israelites in particular, furnished rules for the various circumstances of life. The legislator, in thus stamping his works with the seal of the deity, undoubtedly had recourse to this expedient, as the only one calculated to ensure to them the veneration and obedience of men.
The Persians have but a single term, cheriet, to express the canon law and the civil law. That they have a legislation cannot be questioned; but there is every reason to believe that its application is frequently perverted or evaded, and that though there exist laws, there is no justice.
The Musulman legislation takes the lex talionis for its basis. It is the developement of the principle: do not to others what you would not have them do to you; or receive an equivalent for whatever you do for them. Murder is accordingly punished by murder, and one wound by another, provided the latter be not more dangerous than the former. Such is the rule, but its application is subject to various modifications.
In this legislation, no judgment or decision, that of the king excepted, is without appeal: the same cause may be carried successively before all the tribunals in the kingdom.
Judicial decisions should be founded on—1. passages of the Koran: 2. prophetic traditions, hadees, that is judgment nouneed by Mahomet. There is another authority, which is followed in the adjudication of punishments to be inflicted on criminals: this is the ourf, which might be aptly called the common law.
A celebrated Persian poet relates a story of a judge who committed a capital crime, and obtained pardon through the skill and eloquence of his defence. He might have cited also the example of a wealthy but stupid man who extricated himself from a very serious affair by the sacrifice of large sums of money. These two facts would perfectly characterize the spirit and manner in which the law is administered.
One of the peculiar features of Persian jurisprudence, is its exemption from judicial forms. The most important suit is terminated in a few days; so that the parties are not reduced to beggary by the law's delay. A Persian cannot form any idea of our system of procedure, and the delays attendant on it: he prefers arbiry but speedy justice, to the tediousness of a regular investigation. Still less has he any conception of the equality of all men in the sight of the law, though it is inculcated in the Koran, and though despotim and venality alone have destroyed it. The protection which the law affords to the poor against the oppression of the rich, appears to him as but a dream: because in Persia the humbler classes are always sacrificed to the opulent and the powerful; and the man of quality there enjoys a number of privileges, which are denied to people of low condition. A servant must not complain of the dishonesty or cruel treatment of a grandee; nor must a tradesman demand of him the payment of a debt. This is a species of injustice which custom has erected into a principle; but there is an infinity of other circumstances, in which the laws are violated. Hence arises the aversion of the Persians to lawsuits: they are too well acquainted with the iniquity of judges, to wish to expose themselves to its effects.
In Persia, there is no profession corresponding with that of attorney or notary. When a contract is made, the only way to ensure its validity, is to obtain the signature of several witnesses: for it is right to observe, that in this case the system of evidence in civil and criminal matters is generally pursued agreeably to the Koran: but the sacred book also recommends to the faithful to be sincere in their testimony, were it even against themselves or their parents that they had to give evidence. The Persians are at no loss for reasons for evading this precept; and giving evidence is with them a profession, which, like any other, they will exercise for money.