the civil law prevalent in Christian countries, especially in the inaccessible parts of Greece proper, in the Greek islands, and in Servia, Moldavia, and Wallachia. In some of the Greek territories, as, for instance, in Cyprus, there were preserved, in the local customs and dominant laws, relics of the Western occupation in the times of the Crusades, as, for instance, feudal usages based on the Assizes of Jerusalem.* Up to the present century the people of Moldavia and Wallachia have, in common with the Greeks and Greek-speaking populations, been governed by the works above described of Blastaris, Harmenopulus, and Malaxos. The Moldavian law was first codified in 1816, and it was not till 1865 that it had a code following the type of the Code Napoléon.†

In Greece proper the Promptuarium of Harmenopulus had legal force given to it, in anticipation of further legislation, by a law of the 23rd of February, 1835. It had already been recognized since 1828, in substitution for the Basilica, which had been enforced soon after the outbreak of the revolution in 1821. Various codes have, since 1835, been published of different branches of the law.

In Servia, in Montenegro, as well as in Russia, there are formed, for the use of the Greek-speaking part of the population, various combinations of the canon law and the old civil law. The history of the civil law in Greekspeaking countries is thus one of unbroken continuity.

It now remains to be seen how far the system of law established by Mohammed and his followers in other parts of their dominions was a new system, or was in fact only, like the Basilica, a re-publication of Justinian's system in an Arab dress.

*

See Gibbon ch. lviii., sub. fin., and Zacharia's "Delineatio," p. 137. + Rivier's "Introduction Historique au Droit Romain,” p. 451.

§3.-The Civil Law in the Arab dominions generally.

The sudden appearance of what purports to be an entirely new, original, and independent system of law in the East, professedly based on the Koran and the learned commentaries upon it, is so unique a phenomenon that the question instantly suggests itself, What is the historical foundation for the claim to originality of the so-called Mohammedan law? There is, antecedently to considerations of evidence, the strongest historical presumption against the validity of this claim.

It has been so much the custom to connect a prevalent system of law with the name of either a real or a mythical lawgiver that it need occasion no surprise to find that the complicated legal system prevalent in Mohammedan countries is connected with the name of Mohammed, just as other equally celebrated systems have been associated with the names of Moses, Lycurgus, Draco, Solon, and even Numa Pompilius. It is now understood that a legal system which is actually in use, and really represents the sentiments and habits of a people, has never been the product of a single mind or even of a single age. A Justinian, a Basil, or a Napoleon may digest, codify, or amend existing laws, but he can go only a very little way towards creating an original system of laws. If ever there was a country in which definite and uniform laws are urgently needed it is the territory included in the British dominions in India. Yet, with the unhampered power and full disposition to legislate systematically for this territory, the British Government are compelled to leave the bulk of family law, a vast portion of the land laws and village customs, the whole of the religious laws, no small part of the local governmental laws, and even some of the criminal laws, wholly untouched. is only in the procedure of the central courts, in the law relative to the more modern contracts, and in the general body of the criminal law, that the notable legislative efforts of the last half century in India have been felt.

It

Thus there is a strong presumption to start with that

the systematic and compact system of law which the Mohammedan conquerors generally introduced into their conquered countries was a mere transformation of some highly perfected system of law already existing.

Now it happens that the rise of Mohammedanism and the first outburst of the Mohammedan successes in Arabia, Syria, Persia, and Egypt, belongs to the century which intervened between the completion of Justinian's legislation in A.D. 565 and the publication of the Ecloga by Leo the Isaurian (and Iconoclast), in A.D. 740.

During all this time, in spite of the reverses which, in military matters, the Byzantine Empire had experienced, there is every reason to believe that the elaborate organization and method of legal education prescribed by Justinian in the chief towns of the Empire were uninterruptedly maintained. Berytus, indeed, which was a chief centre of the faith from the time of its conquest by the Mohammedans, had exclusive privileges bestowed upon it as a law school (Const. omnem reipub. §§ 8, 9, 10). Owing to an earthquake and fire which destroyed the city, the school was temporarily removed to Sidon before Justinian's death. A school of law had existed here from the time of Alexander Severus.

We know of a body of advocates at Cæsarea from passages such as that in the Institutes which recounts how, on Tribonian's suggestion, an important law, defining the responsibilities of guardians in respect of giving receipts to their ward's debtors, was first promulgated in the presence of advocates from Cæsarea ("Cæsarienses advocatos," § 2 Inst. (ii. 8)).

Even after the law teaching had been suppressed by Justinian at Alexandria (which itself is a testimony to its prevalence), Agathias, in his life of Justin (Justinian's successor), recounts his own legal studies in that city, which, about the same time, suffered heavily, like Berytus, from the shock of an earthquake.'

The fact of this organization of legal studies in the

* See Montreuil's "Histoire du Droit Byzantine,” vol. i. p. 110.

chief towns, coupled with proofs of the assiduous attention bestowed on Justinian's compilations,—supplied by the Greek dress in which compendiums of them appeared from time to time,-sufficiently establish the conclusion that, at the time of the Mohammedan conquests, the civil law in a Greek garb was not only practically in force throughout the dominions of the Greek Empire,—especially in the towns of Asia Minor, in Syria, in Egypt, and in the Greek islands, but that it was a subject of earnest and unremitting professional study.

So much for a presumption in favour of the influence of the civil law exercised over the Mohammedan legislation, and against the notion that this legislation could have sprung up of itself and have instantaneously superseded the ubiquitous and deeply rooted system which preceded it.

The general character of the Mohammedan conquests and settlement in the conquered countries tends to convert a presumption into a conviction.

What the Mohammedan conquerors insisted upon in all cases was either tribute or conversion, and both the one and the other meant plenary and ostentatious submission. But it meant no more. There were no attempts to organize and administer the conquered countries like those of the Romans and English in respect of their successively annexed dominions. It will shortly be seen that the Koran only professed to legislate broadly on a few characteristic practices and institutions interesting to the natives of Arabia. There was neither in the Koran nor elsewhere during the first few caliphates any attempt to interfere with the complex details of civil life in the richly civilized communities brought under Arab sway. There were neither the leisure for this, nor the requisite intellectual capacity, nor the sort of men needed for the task.

It was only when in Bagdad, in the cities of Spain, and in Cairo, there was repose and opportunity for study and reflection, that medicine, mathematics, logic, and the fine arts, were studied and made to flit with a meteoric radiance

across the midnight of Western thought. If Aristotle supplied the Arabians with their logic, it was Basil, Leo, and their Greek commentators who supplied them with their law. The question only was how to weave these Greek and Roman ideas, which were at the root of the national habits, were the basis of a long established system of academic learning, and were expressed in treatises of the highest and widest celebrity, into the language of the Koran, and to amalgamate the institutions familiar to the Greek world with those which had become characteristic of the Mohammedan rule.

This task has been achieved not without success, and the result is a system which, if not quite homogeneous, is yet practically uniform for all Mohammedan populations in the world.

It remains to illustrate this reasoning by stating clearly what is the amount of true law applicable to the purposes of civil life in the Koran, and what are the chief points of analogy or identity to be found in the current systems of Mohammedan law and the civil law of Justinian.

The chapters of the Koran (Sale's edition) in order, not including every scattered rule of law throughout that very disjointed treatise, contain the following legal rules and principles which, in an occasionally expanded form, exhaust all that the authors of the Koran have to say about strict law as distinguished from ethics and religion.

CHAPTER II. OATHS, DIVORCE, USURY, WRITTEN CONTRACTS, WITNESSES.

"Make not God the object" (that is, says Sale, as a bull to shoot at with arrows) "of your oaths. ... God will not punish you for an inconsiderate word in your oaths; but he will punish you for that which your hearts have assented unto: God is merciful and gracious."

"Ye may divorce your wives twice, and then either retain them with humanity, or dismiss them with kindness.

But if the husband divorce her a third time, she shall