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About Google Book Search Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web at jhttp : //books . qooqle . com/ ■\ ■ >*J -M lt>,W AS. K 17^ if/*'"*) HARVARD UNIVERSITY LIBRARY OP THE PEABODY MUSEUM OF AMERICAN ARCHAEOLOGY AND ETHNOLOGY BOUGHT FROM ROLAND BURRAGE DIXON FUND Received Digitized by ' Google Digitized by Google Digitized by Google Digitized by Google HARVARD UNIVERSITY LIBRARY or THE PEABODY MUSEUM GIFT OF ROLAND BURRAGE DIXON (A.B. 1897, Ph.D. 1900) OF HARVARD, MASSACHUSETTS Received May 7, 1936 Digitized by Google PAPERS ON MALAY SUBJECTS. [Published by direction of the Government of the Federated Malay States.'] R. J. WILKINSON, FM.S. Civil Service, General Editor. LAW. PART I. INTRODUCTORY SKETCH. BY R. J. WILKINSON, FM8. Civil Service. KUALA LUMPUE: PRINTED BY J. RUSSELL A.T THE P.M.S. GOVERNMENT PRESS. 1908. 500-1/08. Digitized by Google 4*. P 197 fa*'*) Digitized by Google PREFACE. This pamphlet is only intended to give a brief intro- ductory sketch of the three Malay Schools of Law. Each school will, I hope, be dealt with more adequately in special monographs that are being independently prepared by different writers. I am indebted to the Resident and to Messrs. Parr, Rigby and Hale for much helpful criticism and to the Hon. R. N. Bland for some very valuable material relative to Menangkabau Jaw. E. J. w. Digitized by Google Digitized by Google MALAY LAW. INTRODUCTION. OP all branches of Malay research the study of juris- prudence is the one that presents the greatest difficulties. Malay laws were never committed to writ- ing ; they were constantly overridden by autocratic chiefs and unjust judges; they varied in each State; they did not harmonise with the doctrines of Islam that they professed to follow; they were often expressed in metaphors or proverbs that seem to baffle interpretation. The following examples of Malay legal maxims will give some idea of the difficulty of understanding what a native jurist really means : Kambing biasa membebek. Goats bleat. Ay am itek itu raja pada tempat-nya. Poultry are kings in their own domain. tlnggang lain ranting patah. The twig breaks as the hornbill flies past it. Kusut menyelesaikan, Hutang membayar, piutang menerimakan, Qleh iempat semenda. To settle quarrels, To pay debts, to collect dues : These things are the business of the wife's relations. AJcar sa-kelai ahan pengihat, Kayu sa-batang lembing peniJcam, Dahan sa-herat ahan penyalang, Puchoh bernama pedang pemanchong, Itu-lah Tcata adat dengan pesaka. The piece of rattan typifies the bonds, The tree-stem means the spear, The bough means the heris of punishment, The shoot is the sword of execution : So say the law and our ancient traditions. Digitized by Google PAPERS ON MALAY SUBJECTS. It is extremely doubtful whether any European will ever succeed in thoroughly understanding every intricacy of the law of Menangkabau; but although sayings like those above quoted may seem to be intended for lovers of the unintelligible, the cryptic doctrines of the old Negri Sembilan jurists are full of meaning and interest if only they are studied in the right way. The first key to all law is, of course, history. The Peninsular Malays are believed to have originally come from the Menangkabau highlands of Sumatra, but they did not all come at the same time or in the same way. Some came almost direct ; these men brought with them the pure Malay law of Menangkabau, the matriarchal aclat pgrpateh piuang sa-batang. Others came by way of Palembang ; these men brought the patriarchal aclat temenggong, for the ancient Malay kingdom of Palem- bang had come under the influence of the old Hindu civilisation of Java and had entirely abandoned its Me- nangkabau customs. We thus get two absolutely distinct schools of law : the adat perpateh in the Negri Sembilan and Naning, and the adat temenggong (or its fragmen- tary remains) in the other Peninsular States. To these two schools we must add a third : the hukum shara 9 or Muhammadan law. The Malays, as good Moslems, pro- fess to accept the legal teachings of Islam even where those teachings conflict with the local adat ; they pretend, indeed, to regard the adat as explanatory of Moslem law or as supplementary to it. All this is mere fiction ; the three systems of law are absolutely irreconcilable. The adat perpateh is democratic ; it addresses itself to the commons and finds expression in quaint sayings that seem to belong to the homely province of proverbial philosophy. The adat temenggong is autocratic; it is Digitized by Google LAW: INTRODUCTION. supported by Malay princes and finds expression in long legal digests (undang-nndang) drawn up by court scribes for the glorification of the raja and (incidentally) for the purpose of displaying their own learning. The huhum *hara* is, of course, theocratic ; it appeals to the edu- cated classes and is embodied in elaborate treatises that have been translated from the Arabic. No three legal systems could be more unlike one another. The first duty of the student is therefore to clearly understand the composite nature of Malay law. He must not look for uniformity where no uniformity can possibly exist. Above all, he must not allow himself to be blinded by any European preference for written or recorded laws. He should not take the so-called " codes " (tindang-undang) too seriously. When he reads about the "Malacca Code" or the "Malay Maritime Code" or about the " Laws of Bencoolen and Palembang," he has to remember that these so-called " codes " were never actually enacted by any legislative authority; they are only digests of Malay law. There is a very great differ- ence between a digest and a code. A digest may give a very faithful picture of its subject, but it is, at best, a picture and not the actual law — no man can be charged in court with violating some section or sub-section of a digest. This distinction would not matter so much if the authors of our so-called Malay " codes " were great legal artists who faithfully depicted what they found to be the law, but they were courtiers who were fonder of theories than facts. When, for instance, the author of the "Malacca Code" assures us that a fisherman is entitled to the ownership of his catch, even if he clumsily happen to hook a passing damsel, we need not imagine that there ever was a time when the hooking of casual Digitized by Google PAPEPS ON MALAY SUBJECTS. spectators was allowed to become a profitable branch of the piscatorial art; it is more reasonable to suppose that the learned author of the " Maritime Code " was an extremely argumentative person who pushed his doctrines to absurd extremes. Of course these published undang- undang are interesting and valuable because of the evi- dence they give of the legal theories that underlie the adat tgm&nggong, but they do not possess the authority of enactments nor do they help us in any way to understand the adat pfr-pateh or ancient customary law of Menang- kabau. Great weight may, however, be attached to the curious Malay legal maxims, the sententious sayings that have been handed down by oral tradition and are accepted in the Negri Sembilan as good law. They correspond to such English proverbs as " Possession is nine-tenths of the law" and "An Englishman's house is his castle," but they are far more numerous and more authoritative. They deserve very careful study, for they embody nearly the whole of the adat perpateh and are based upon actual experience more than upon the opinions of individual jurists. These sayings are a great power in the Menang- kabau States: being known to all and having the full force of public opinion behind them, reference to them is sufficient to compel even an unjust judge to do justice to the litigants before him. The student of old Malay law should also remem- ber the political conditions under which it was adminis- tered, since he is apt to be misled by the position of affairs under British protection. In the principal centres of government — Taiping, Kuala Lumpur and Seremban — he sees that the largest public buildings are the gaols and the largest public bodies are the police, so that he is Digitized by Google LAW: INTRODUCTION. apt to forget that police and prisons had no part in the^ simple village life of the old Malays. Although a few native princes (especially in the Northern States) were sufficiently advanced to establish at their capitals some cages that might be called rudimentary gaols and to maintain small bands of disreputable followers who might by extreme courtesy be described as their police, the minor headmen who controlled the destinies of the remote villages could not afford these evidences of higher civilisation. In the Negri Sembilan life was largely communal. Imprisonment and mutilation — such as the lopping off of a limb — rendered a man a burden to the community instead of an aid. Torture, scourging, branding and disfigurement were dangerous punish- ments to inflict because of the desperate thirst for vengeance that they roused in the heart of a sensitive and self-respecting Malay. Death, enslavement and exile were extreme penalties that could only be applied to incorrigible offenders. We therefore find, as we might have expected, that the adat perpateh was an extremely mild system of law, lenient to first offenders and always ready to condone a wrong if due restitution was made. Its great feature was the system of collective responsi- bility — the liability of a family for the faults of its members. In inflicting nothing more serious than a fine upon an offender, the administrators of the law could rest assured that all possible family influence would be brought to bear on the criminal to induce him to amend his ways and to become a source of profit instead of loss and disgrace to his relations. By this means the adat perpateh tended to reclaim the wrong-doer and to keep its own leniency from degenerating into an undue tolerance of crime. On the irreclaimable offender — the Digitized by Google PAPERS OX MALAY SUPJECTS. man whom his own family rejected — the law pressed severely: it had no option except to banish, kill or enslave him. Taken all in all, this adat of Menangkabau may claim great merit as a system of law ; it was just, it was humane, it tolerated no delay in criminal matters, it secured compensation for the injured ; it never brutalised or degraded a first offender; it was understood by all and even went to childish extremes in its desire to explain itself clearly and intelligibly to the very humblest intelligence in the community. The autocratic adat tgmenggow>g was different. The interests of a Malay chief lay in the direction of exacting heavy fines, reducing offenders to slavery under him, and vindicating his authority by the cruel punishment of any man who dared to gainsay him or disregard his commands. The justice of a Malay prince, even when impartial, was a cruel and pitiless justice, seeking to deter rather than to reform. The theocratic huhini shara' (which came into prominence whenever a native ruler was frightened by illness or old age into a sudden zeal for reforming his neighbours) was, in its way, even more unsatisfactory than the adat t&mgnggong. It multiplied offences intolerably. Cock- fighting, opium-smoking, gambling, illicit intercourse, irregular attendance at mosque, and even such technicalities as wearing the wrong kind of clothing and beating gongs at weddings are liable to be severely punished under Muhammadan law. If the adat tSm&nggong brutalised the people, the hokum sharcC put a premium on hypocrisy. Zeal for piety, like zeal for law and order, may easily be pushed too far. As a corrupt judiciary will discredit any legal system however excellent in itself, it is necessary to Digitized by Google LAW: INTRODUCTION. discriminate also between the law and its administrators when we estimate the merits and demerits of the old Malayan adat. When compared with English law the adat tgmenggong seems very faulty indeed ; it was crude and primitive in its legal theories, uncertain and unmethodical in its pronouncements, cruel and brutal* ising in its punishments. The hukum shara' or Moslem law stands on a much higher plane of intelligence, but it wa£ rather inhuman in its penalties and unpractical in its inability to distinguish between crimes and sins. The primitive adat p&rpateh bears the comparison with English law best. English law is not, of course, above reproach; it owes its reputation in the East more to the integrity of its judges than to its own merits. It is notoriously slow ; it is full of formalities and techni- calities; it is costly to suitors; it is constantly being amended or modified ; it presses hardly on jurors and witnesses and is not easily understood by the people. Moreover, although it may seem paradoxical to accuse English law of comparative brutality, its system of admin- istering punishment as a deterrent suggests the cruel adat temenggong rather than the kindly adat perpateh which treated crime as a mere civil wrong until an offender was shown to be incorrigible. The interest of the study of the different systems of Malay law with their varying merits and demerits lies in these comparisons of one with the other. From this point of view, the adat perpateh is exceptionally interesting because it shows how these primitive Menangkabau Malays overcame many difficul- ties that English law has failed to surmount. The men of Menangkabau succeeded in creating a jurispru- dence so simple that the humblest villager could under- stand it, so well known that no judge could excuse Digitized by Google PAPERS ON MALAY SUBJECTS. or defend an unjust decision, so little vindictive that it sought the interest of the injured party rather than the punishment of the wrong-doer, and so humane that it could dispense with mutilation, scourging, torture, slavery, and imprisonment. In fact, throughout all the old Sumatran adat we can trace the underlying idea that the worst use to which a criminal can be put is to cripple him or to kill him or to dishonour him by degrading punishments or to brutalise him by unproductive prison- labour. As all members of a little community were connected by marriage, they constituted one family and called the village-headmen the ibu-bapa or "parents" of the hamlet. The system of justice so administered by one's " wife's relations " was a happy mean between the over-indulgence of close blood-relationship and the utter indifference of stranger to stranger. THE ADAT PfiRPATEH. The States that make up the modern Negri Sembilan are not ancient communities. They date back, at farthest, to the middle of the seventeenth century, when a number of Sumatran Malays began to migrate in small detach- ments from Menangkabau to the inland districts behind Malacca. The descendants of these old immigrants still speak of themselves as " Sons of Menangkabau/' Kita anak Menangkabau yang di-bawah langit dan di-muJea bumi, sa-linglcar Ounong B8rapi, sa-hingga pintu raya, hilir hingga Silagundi, mudek yang bernama Tanah Samata, Pulau Andalas. We, sons of Menangkabau, who dwell with the heavens above us and the earth beneath our feet, who once held the lands round the Mighty Burning Mountain as far as the great pass that opens the way to the plains, who migrated down to Silagundi, to the territories below the State of Sumatra in the isle of Andalas. Digitized by Google LAW: THE AD AT PERPATEH. The " Sons of Menangkabau " came down first to Siak ; then they crossed the Straits to the Linggi River ; thence they made their way to Naning, Rembau and the other Negri Sembilan States. When few and weak they pro- tected themselves by admitting the supremacy of Johor ; gaining courage as time went on, they selected a prince of their own blood from the royal line of Menangkabau. This prince, Raja Melewar, appointed about a.d. 1770, was the ancestor of the present Yang-di-pertuan Besar of the Negri Sembilan. These and many other facts of local history are recorded in the quaint old sayings (perbilangan) that have been handed down from generation to generation by way of making the Negri Sembilan Malays ever mindful of their origin. These old sayings are not likely to be forgotten ; they are a source of pride, an unwritten pedigree or patent of nobility to the men who quote them and about whom they are quoted. Old sayings, even when historical in character, are generally considered by Malays to be included in adat, " law," for although they are not really law, they serve to explain or elucidate the law. Here is one of them : B&raja ka~Johor, Bertali Jca-SiaJc, Bertucm ha-Menanglcabau ; Sultan Bfoar di-negeri Seri Menanti, Pertuan Muda di-negeri RVmbau. Our suzerain is Johor, We have ties with Siak, Menangkabau is our master ; Our highest local chief is the Euler of Sri Menanti, Our second local chief is the Yamtuan Muda of Rembau. This saying explains the political position of the confederation in its relations with foreign States. Digitized by Google IO PAPERS ON MALAY SUBJECTS. Again — Alam Mraja, Luhalc berp&nghuhi, Suku b&rtuha, AnaJc buah b8ribu-bapa. The world has its king, The district has its chief, The tribe has its headman, The family has its elders. This saying gives the gradations of rank within the State. Before, however, we can examine the constitution of the Negri Sembilan as a whole, we have to study the units, the little matriarchal communities, of which the population is made up. Tribal descent goes through women — a man is a member of his mother's tribe until by marriage he is received into his wife's. Land can be owned by women only. Women may not travel ; the husband settles in his wife's village — not the wife in the husband's. Exogamy is insisted on. These points summarise the constitution of the " family." The effect of these curious rules — the very reverse of what Europeans are accustomed to — is not to be realised without some thought. Let us suppose that a small party of men and women belonging to the Payakombo tribe 1 settled at a certain village in Naning. The daughters of the original settlers would belong to the same tribe, would possess all the land, and would continue to reside in the same place. The sons of the original settlers would — owing to the law of exogamy — be com- pelled to leave their native homes, to marry into other 1 Of course there are no actual tribal districts ; the whole of the Payakombo tribe did not settle in one place. The unit is a family group (pSrut), a sub- section of a tribe (suku). Digitized by Google LAW: THE AD AT PERPATEH. II communities, and to take up their abode in the houses of their wives. This process goes on from generation to generation. The women of a family group (perut) constitute a wealthy, powerful and united body, banded together by the bond of a common descent, sharing a common tradition and owning all the land. Their hus- bands, the men of the community, are a nondescript crowd, drawn from many different tribes and villages, not united by ties of blood, and not owning any of the lands and houses. In such settlements the position of women is an immensely strong one. Any idle or criminal husband would at once incur the hostility of " his wife's relations," the whole clan, and would be practically compelled to mend his ways. Should he prove irreclaimable he might of course be divorced and expelled; he would lose his livelihood and would find that no community would accept him, and th^t no other woman would marry or support a man who had so hopelessly failed in his duties. If we try for a moment to realise the enormous hold that one of these communities must have over its members, we can at once understand why the " family " could answer for the deeds of its members : Kumt menySlfoaikan, Hutang membayar, Piutang m$n£rimakan, Oleh t&mpat semtinda. To settle disputes, „ , ^ To pay debts, To receive dues — These things are the business of " the wife's relations." I now venture to quote from Mr. Hale's " Folk-lore and the Menangkabau Code in the Negri Sembilan:" Orang semenda bert&mpat s^m^nda ; Jika ch&rdek teman b&runding, Digitized by Google !2 PAPERS ON MALAY SUBJECTS. Jika bodoh di-suroh dia arah ; Tinggi banir tempat berlindong, Rimbun daun tempat bernaung. The married man shall be subservient to his mother-in- law; If he is clever I will try to cajole him, If he is stupid I will see that he works ; Like the buttresses of a big tree he shall shelter me, Like the thick foliage he shall shade me. One can imagine the satisfaction a Malay mother derives from thinking over this saying and reciting it to her cronies and her daughter, when she has made up her mind to receive a son-in-law into the family ; be he sharp or slow, clever or stupid — either way she cannot be a loser. Her daughter's house will be built behind her own ; if the man is clever he will get enough money to build the house by easy means ; if he is stupid she will so bully him that the poor man will be glad to labour with his hands at her bidding : it would seem to the anxious mother that she and 'her daughter cannot but be gainers by the contract. This passage bears rather amusing testimony to the power of " the wife's relations." Although the quotation is not likely to prejudice anyone in favour of the women of Rembau, common justice ought to make us recognise that the system worked well. The people of the Negri Sembilan are the most industrious, most intelligent and most artistic Malays in the Peninsula. They owe these qualities largely to the pressure put on them by "the wife's relations." To the communal system they also owe the merits of their law. If a man was wronged he was indemnified by the wrong-doer's " wife's relations." If a man committed an offence in a foolisli moment of thoughtlessness or passion, he was not turned into a criminal; he compounded the wrong by the help of his " wife's relations." The quarrels of the community were settled by the elders — the ibu bapa 9 or " parents " of the community, as they were called — men who were Digitized by Google LAW : THE ADAT PEPPATEH. 13 connected by marriage with both disputants and might be expected to temper justice with mercy. The com- munal system explains both why the law was humane and why it could afford to be humane. The women of a place constituted a bond of relationship between one man and another and gave to a settlement something of the unity of a family with the elders or " parents " at its head. The highest quality of the adat perjpateh was its humanity ; its next great merit was the extreme simpli- city that brought its provisions within the knowledge of everyone. It was embodied in a vast number of homely sayings that covered almost every branch of law, tradi- tion and proverbial philosophy. Adat, in fact, meant more than mere law. In the quaint and primitive jurisprudence of Menangkabau the meaning of the word adat is explained by the proverb : Bujur lalu, lintang patah. Lengthways, you get through ; Crosswise, you get broken. If you take a stick and thrust its point at an aperture, the stick goes through ; if you press the stick athwart the aperture you only break the stick. The aperture is the same, the stick is the same, the intention is the same, but the procedure is not the same. Adat is right pro- cedure. In all matters there is a right way of doing things and a wrong way of doing things; adat is the right way. If a man obeys the laws of nature and the customs of society he is likely to get on; if he flies in the face of convention he is sure to be broken like the stick in the proverb. In English the word " law " is used in a loose popular sense as well as in a technical sense; adat is law in the loose popular sense. Adat Digitized by Google 14 PAPERS OS MALAY SUBJECTS. includes the laws of nature, the conventions of society, the rules of etiquette, and even the doctrines of common sense. Adat is right action in the matters of everyday- life as well as in obedience to the law of the land. The English word " law," as defined by a great jurist like Austin, is adat in a very limited sense indeed; it does not cover the so-called laws of nature or of health or of etiquette. An English jurist would say that the law compelled a cabman to wear a badge but not a tie or a water-proof ; a Malay would say that adat compelled the driver to dress decently and to protect himself from the rain. Curiously enough, the modern Menangkabau Malays have been clear-sighted enough to appreciate the difference between law and adat, as the following verse will prove : Orang Makkah inembawa teraju, Orang Baghdad membawa tclor, Di-makan dalam puasa ; Rumah yang bersendi batu, AdaJt yang bcrsendi law, Itu-lah akan raja. " Houses built on a framework of brick — customs (adat) built on a framework of law — are kings among their kind." In this passage we see very plainly the idea that law lies at the very heart of adat but is not coex- tensive with it. " Law," then, in the English sense, is virtually a government order backed up by a penalty for non- compliance; the source of law is legislative authority. What, then, are the sources of right action (adat) ? The Menangkabau jurists say that there are six such sources: primitive justice, revelation, tradition, treaty- Digitized by Google LAW: THE AD AT PERPATEH. 1 5 convention, promises and the course of events. 1 All these things determine what is right action and what is wrong. Primitive justice (cfaipak yang adi) is practically equity or common sense. To illustrate the application of common sense to law the Negri Sembilan jurists have evolved a most curious series of axioms or maxims so homely in their terms that they could not fail to explain the adat to the intelligence of any villager however stupid or ignorant. To us, of course, they seem childish : Kambing biasa membebeh, Kerbau biasa menguah, Ayam biasa berhuhoh, Murai biasa berhichau. Goats bleat, Buffaloes bellow, Cocks crow, Magpie-robins twitter. This only means that every living thing, through birth, natural aptitude or surroundings, has some allotted function in life. Applied to humanity the same axiom is thus expressed : Penghulu biasa menghuhumhan adat, Alim biasa menghuhumhan shara\ Hulubalang biasa menjarah, Juara biasa melepas, Saudagar biasa bermain bunghal teraju, Perempuan biasa berusahahan Jcapas dan benang. The penghulu administers customary law, The jurisconsult administers religious law, The warrior raids the enemy's country, The trainer lets fly the fighting-cock, The merchant fingers weights and measures, The woman works with her needle and thread. 1 A man's promises and the course of events may determine right action, but they do not affect law. They are not discussed in this chapter. Digitized by Google |6 PAPERS ON MALAY SUByECTS. ThesG axioms have even been versified to enable them to be more easily remembered : Chempedak ambilkan gulai Di-gulai dalam puasa ; Apa-kan chupdk pegawai ? Beroleh Utah daripada raja. Menchampak tirriba ka-hulu, Kena-ldh udang oleh orang ; Apa-kan chupdk penghulu ? Bermain undang-undang. Menchampak ka-tengah sawah; Mendapat buah delima ; Apa-kan chupak memerentah ? Mengetahui jatoab empat perkara. We have also a similar set of quatrains in a slightly different form : - ' - Berperak ka-tengah kota, T empat bertanam selaseh jambi ; Jika td-banyak kitab terbacha Tiada sah menjadi kadzi. Burong kenari berkekah, Berkekah di-tengah padang ; Jika td-berani menjarah, Tiada sah menjadi hulubalang. Lalu berempat orang kvbong, Ka-baroh membawa petai ; Jika td-tahu kata berhubong Tiada sah menjadi pegawai. All these verses — and many others like them — only mean that every man has his own business and that he should try to mind it. The next maxim is that a man should not only Digitized by Google LAW: THE ADAT PERPATEH. 1 7 attend to his own business, but should attend to it in the proper way : Menumbok di-ttaong ; Menanak di-periok. Pound rice in a mortar ; Boil rice in a cooking-pot. If you go pounding rice in a cooking-pot, you will only break the pot ; if you boil your rice in a mortar, you will not get an appetising dinner. Such action is not right action ; it is not the right way to do things ; it is not adat. The next item in this homely jurisprudence is that if a person is doing his proper work in the proper way, he is not to be thwarted or interfered with. Every person is "king in his own domain." , „ Penghulu itu raja pada tempat-nya ; Pegawai itu raja pada tempat-nya ; Hulubalang itu raja pada tempat-nya ; Kanak-kanak itu raja pada t&mpat-wya ; Segala binatang itu raja pada tempat-nya ; Ay am itek itu raja pada tempat-nya. " Even poultry are kings in their own domain," When it comes to laying eggs the wisest man on earth cannot successfully compete with a humble hen. The next maxim is a very important one; it deals with the treatment of offences against adat The rule is expressed as follows : Yang menchinchaug, yang memapas ; Yang membunoh, membangunkan ; Yang menjual, memberi balas. l Who wounds must heal ; Who slays must replace ; Who sells must restore. 1 A shorter variant is chinchaitg j?o.^a«, bunoh baltis. Digitized by Google 1 8 PAPERS 0iV MALAY SUBJECTS. In other words, the wrong-doer must pay for the wrong done. This axiom has been versified. Orang Silongkang mimbawa kapas, Orang Butun membawa ayer ; Yang mvnchinchang yang memapas, Yang berhutang yang membayar. This is, of course, like the doctrine of "an eye for an eye, a tooth for a tooth, a life for a life." But there is this important difference : the aclat perpateh aimed at restitution and not at vengeance; it concerned itself chiefly with securing adequate compensation for the injured party or his relatives. We may conclude with one final axiom of this axiomatic law — Chupak yang pepat, Gantang yang piawai, Bungleal yang bet id, Teraju yang baik, Tiada boleh di-paling lagi. Let your measure be just, Let your measure be full, Let your weights be correct, Let your scales be even — And no one will go back on what you do. This saying is intended to imply that a seeker for justice should not be put off with half-measures, that compensa- tion should be adequate and that debts should be paid in full. Half -measures satisfy nobody ; they only lead to vendettas and to the continual reopening of a quarrel. It is easy to see how this quaint old sententious jurisprudence could be applied to the settlement of simple disputes. Let us suppose that A drives over B. If A does not know how to drive we condemn him at once because "a goat should not attempt to bellow." Digitized by Google LAW: THE At AT PERPATEH. li) If A has been using an unsuitably restive horse we also condemn him because he should net " pound rice in a cooking-pot." If A has been driving on B's side of the road we decide in U's favour for B is "king in his own domain. " We follow up the decision by making A pay damages because "whoever destroys shall also replace/' and then we fix the compensation at a sum proportionate to the injury, for " the measure should be full, the weight should be correct, the scales should balance fairly." Finally, if A meets the claim in a fair spirit we can insist on his obtaining a quittance in full from B — "the measure is sufficient, and there is no going back on what you do." If the trained jurist is inclined to sneer at a law so childish in its terms as to suggest the nursery or the kitchen rather than the court, he should remember that this very simplicity made it comprehensible to the humblest members of the primitive communities for whom it was intended. As with the great truths of religion — Truth iu closest terms shall fail, When truth embodied in a tale May enter in at lowly doors. The simplicity of the law of Menangkabau was its strength. If a suitor had a perfectly clear case he either got what he wanted or he made it clear to the whole country-side that he was being unjustly kept out of his rights. He could not be put off with any misrepresen- tation of a law that the very children of the country knew and understood. The difference between the adat perpateh and the adat tem&iiggong is visible in these days of British administration. Whenever a miscarriage of justice occurs in Perak, Pahang and Selangor, the Malays Digitized by Google 2o Papers on Malay subjects] take it very calmly ; but in the Negri Sembilan the whole population is excited by any non-recognition of the local adat. The passionate interest taken by the people in their old traditional law is surely a testimony to its practical value. To quote one of their own sententious aphorisms, " A man who deals in jewels is the best judge of a gem." According to Menangkabau jurists, the axiomatic justice that we have been discussing is only one of six great branches of adat. Embodied in a few homely sayings, primitive justice (chupak yang asli) may suffice for the settlement of very simple issues, but has to be supplemented by something more elaborate whenever we come to complicated questions such as the title to land, the succession to property, the validity of marriages and divorces, and the proper election of chiefs. The more elaborate branches of jurisprudence are accordingly known to the Malays as artificial law (chupak yang buatan), treaty- law (kata muafakat) and tradition (kata pgsaka). If we accept the unhistorical belief that the whole of the adat perpateh was invented by a certain Dato* Perpateh Pinang Sa-batang and that the whole of the adat temenggong was the work of a Dato* Ketemeng- gongan, we might go so far as to describe all higher law as "artificial"; but, of course, these great opposing legists are mere personifications of schools of jurispru- dence and could not historically have sunk European ships or argued with each other or done the other wonderful things that are ascribed to them. Under the circumstances, it will make for clearness if we discuss the peculiarities of the adat perpateh as " tradition " (kata pSsaka) and the Negri Sembilan constitutions as " treaty- law" (kata muafakat). By this classification we limit Digitized by Google LAW: THE ADAT PERPATEH. 21 the term "artificial law" {chupak yang buattin) to the additions imported into adafbj the influence of Islam. We use the term " additions " intentionally. In theory the Menangkabau Malays are good Muhammadans and are bound to accept the whole of Muhammadan law, but in practice they limit that acceptance to matters in which it does not disagree with their own customs. When it €6mes to choosing between the adat and the huhum sham 9 they allow the latter to go to the wall. Of course there are many points on which the two need not conflict: questions of mosque management, for instance, lie entirely outside the adat. Even in points in which the two laws contradict. each other, the Negri Sembilan Malay affects to believe that Moslem law agrees with adat, and that his local hadzi is only misinterpreting the law. The Negri Sembilan Malay in fact looks upon the adat as the application of divine law to mundane matters — Adat yang kawi, Shara* yang lazim. Custom is real law, Eeligion is ideal law. He argues that there is really very little difference between the two : Pada adat, Mgnghilangkan yang burok, MVninibulkan yang baik ; Kata shard' \ Menyurohkan berbuat baik, Menegahkan berbuat jahat. Our customary law bids us Remove what is evil And give prominence to what is good ; The word of our religious law Bids us do good And forbids our doing eviL Digitized by Google PAPERS ON MALAY SUBJECTS. One law is satisfied if a man abstains from evil; the other goes further and expects him to do good. Although adat may not go as far as religion it must surely be based on the same right principles; how, then, can the two come into collision ? So argues a Menangkabau chief whenever he dismisses a kadzi for not seeing his way to reconcile the canons of religion with the accepted law of the world. As the huhim sham 9 or law of Muhammad is the subject of a special chapter of this pamphlet we may pass it over for the moment and proceed to examine the next two branches of Malay jurisprudence, " treaty- law" (kata muafcikat) and "traditional law" (kata pesaka), as we may roughly translate them. We use the term "treaty-law" advisedly because the constitu- tions of the various States of the Negri Sembilan were so elaborate and differed so much from one another as to bear out the theory that they were the result of of conventions (mvafakat) between the different village- communities. The titular head of the country, the Yamtuan Besar, was a hereditary ruler who succeeded to his title according to descent in the direct male line. The Dato' of Naning (the oldest State) was also a hereditary ruler, but he inherited and bequeathed his title according to the matriarchal system of descent through women. The Dato' of Johol was chosen by the chiefs of the aboriginal tribes. The Dato' of Rembau was elected in the most elaborate way from a certain limited clan of waris or possible heirs. This clan was divided into two branches, each of which took it in turn to provide the Dato'. In theory the eight subdivisions — the ivaris villages — ought also to have taken in turn the provision of a chief, but in practice the stronger were apt to override the weaker. Digitized by Google LAW: THE A DAT PERPATEH. 2$ The State of Rembau also presents us with the curious anomaly of a Sakai chief * reigning over a popu- lation of Malays. The wains clan was only a subdivision of the great biduanda tribe, the descendants of the aboriginal inhabitants of the country. But though the Dato' was, in a sense, a Sakai, the "electors" were Malays. The " electors " were the Umbagas or tribal headmen representing the twelve Malay tribes. 2 The Dato' was a Sakai, but his own people had (in theory) no voice in the final stages of his election. The constitutional adat of the Negri Sembilan dealt with many things besides the appointment of the rulers. It defined the position and precedence of the minor chiefs, it settled their powers, and it covered the whole of what we may term their court etiquette. It is summarised in a large number of sayings, of which the following are examples : Ada-pun raja tin tiada rnempunydi negPri dan tiada boleh menchu- Jcai kharajat, melainkan berkPadilan sahaja serta pirmakanan-nya. The King does not own the soil nor can he levy taxes ; he is the fountain of justice and may levy definite fees for his maintenance* This passage explains the position of the Yang-di-pertuan Besar. His precedence was unquestioned; his powers were limited. He was the Iceadilan or " fountain of justice," but the great chiefs executed his justice as they thought fit. All executive authority lay with the great local chiefs : Raja b&rdaulat, penghulu berandika ; Raja bertitah, penghulu bersabda ; 1 The Dato' would be a Sakai in the direct female line. By blood he must be largely a Malay — owing to the law of exogamy. Bat he claims the heirship by virtae of the Sakai element in his ancestry. The Dato' of Johol is also a " Sakai " in this sense. 2 The " electors " approve or confirm the election ; they do not directly choose the Dato', Digitized by Google 24 PAPERS ON MALAY SUBJECTS. Raja b&rkhalifah, penghulu bersuku ; The king has Majesty, the chief has Honour ; The king decrees, the chief orders ; The king rules the world, the chief rules the tribe. These last sayings do justice to the titular dignity of kings. Raja mSnobat didalam alam ; Ftinghulu menobat didalam luhah ; Lembaga menobat didalam lingkongan-nya ; Ibu bapa menobat pada anak buah-nya ; Orang banyak menobat didalam teratak-nya. The king rules his world ; The chief rules his province ; The lembaga rules his tribe ; The elder rules his own people ; The peasant rules his house. This last passage deals of course with the territorial limits of power. The next deals with the character of that jurisdiction : Tali pengikat daripada Umbaga, K&ris menyalang daripada undang, Pt-dang pemanchong daripada raja. Bonds are the lembaga 's, The execution-fc£ri's is the chiefs, The sword of execution is the king's. Petty disputes were settled by a system of arbitra- tion, the arbitrators being the village-elders or " parents " of the village. If the dispute was serious enough to demand stronger measures the lembaga or tribal headman was called in, with power to bind the culprit and, if necessary, hand him over to the chief, the undang, who had authority of life and death. But why was there a distinction between the sword and the Jceris ? Digitized by Google LAW: THE AD AT PERPATEH. 25 In theory the power to shed a man's blood was only- vested in the king. This power was very jealously guarded and might even provoke a war if a sultan believed that a great vassal was putting criminals to death without sufficient deference to the supreme authority, the " fountain of justice." The full power of life and death was defined as — Tikam ta'-bertanya, Pan-chong ta'-bfrJchabar. To stab without question, To behead without reporting the matter — a passage that is sometimes misinterpreted into suggest- ing that a prince could execute a man without trial. The real meaning is that the chief can execute without appeal. The full authority conveyed in these two expressions was essentially a royal prerogative and was not delegated. In practice, however, the power of exe- cuting criminals had to be exercised (without appeal) by the chief local authority in the outlying districts of a sultanate. A distinction was therefore drawn between death by the sword and death by the kens. The long rapier-like Iceris of execution, forced downwards from the collar-bone through the heart and lungs, slew the criminal without (theoretically) causing more external bleeding than could be absorbed by the little piece of cotton- wool through which the 7ran accept office. The second, Malik (a.d. 716-795), was flogged by order of the Caliph Al-Mansur on the charge of holding mis- taken opinions. The third, Shafei (a.d. 767-820), was a yery retiring student and teacher, who only began to write in his forty-seventh year and died in his fifty- fourth. The fourth, Ibn Hanbal (a.d. 786-863), was scourged by order of the Caliph Al-Mamun for holding the view — now accepted by Islam — that the Koran was not created but had existed from the beginning of time* These four jurists agree on all major points ; whenever they agree, their "consensus" settles a question for- good and all. On some minor issues they differ. Abu Hanifah was essentially a lawyer. He was described by Malik as " such a person that if he were to assert that a wooden pillar were made of gold he would prove it to you by argument." Malik was a true theologian ; on his death-bed ho severely condemned himself for having allowed his own fallible reason to occasionally influence his legal opinions. Malik was the instructor of Shafei; Shafei taught Ibn HanbaL There is, therefore, a certain distinction between the followers of these last three (who are known as " traditionists," ahl-i-surmat) and those of Abu Hanifah who are called ahl-i-lcias, or " disciples of reasoning by analogy." Modern Turkey is Hanifite; so are Northern India and Turkestan. Morocco and Algeria Digitized by Google 48 PAPERS ON MALAY SUBJECTS. are Malikite countries. A few fanatical Hanbalites are found in the wilds of Arabia. Egypt, Southern Arabia, Southern India, and the Malay Archipelago are Shafeite. The student of British Malaya is, therefore, mainly con* Cerned with the teachings of ShafeL The Imam Muhammad bin Idris ash-Shafei, an Arab of the tribe of the Kuraish, was directly descended from Abdu'l Muttalib, the Prophet's grandfather. From his teacher, Malik, he had derived a very great respect for tradition, but he did not blindly accept it all. Modest and unassuming in character, he did not force his views on his disciples; he allowed people to disagree with him so long as they showed proper respect for the main doctrines of Islam. The weakness of Shafei's system is, perhaps, best shown in the character of the most famous follower of his school, the great Saladin, who was a pattern of personal merit, but whose horror of impiety led him to put to death any- one who broached very unorthodox views about religion. The Malays never accepted Moslem law in its entirety. They were quite prepared to adopt it in purely religious matters, such as the control of mosque- lands and the levying of tithes; but when it came to the serious business of life — such as contract, sale, slave-right, land-tenure, debt and succession to titles and real property — the chiefs continued to observe their own adat or customary law. They were probably right to do so ; an abrupt transition from one legal system to another leads to innumerable cases of injustice. Law should be coincident with what may be called national common sense. No Englishman knows the whole of his law, but he feels that if he acts in accordance with morality, custom and common, Digitized by Google LAW: MUHAMMADAN LAW IN MALAYA. 49 sense he is not likely to go far astray; would he feel as safe in a foreign land even if the alien system of jurisprudence was logically superior to his own ? The Malays recognised the theoretical merits of Moslem law but they decided that in matters of every- day life they would do well to adhere to customs that were known to all. The religious law gained ground very slowly. It had to fight against the ignorance and innate conservatism of the people, against the lawless ways of the chiefs, and against the discreditable be- haviour of its own unjust judges. There can, however, be no doubt that Moslem law would have ended by becoming the law of Malaya had not British law stepped in to check it. An unwritten code can only be perpetuated by constant observance; every violation of the adat by some powerful chief had the effect of weak- ening the customary law. Moslem law was in a different position. It rested on something stronger than mere observance and was recorded in imperishable litera- ture. It was gaining ground everywhere when the British authorities came into Malaya and limited the scope of religious law (in the Colony, at all events) to issues affecting the validity of marriages and divorces and the legitimacy of children. Muhammadan jurisprudence regards marriage as having for its primary object the perpetuation of the human race. It confers upon the husband such rights over his wife as may be absolutely necessary to carry out this theory, but it does not permit him to reduce his wife to the position of a household slave or instrument of pleasure. Marriage is effected by a nuptial contract. This contract must be made in the presence of competent witnesses and must be assented to by both husband Digitized by Google 50 PAPERS ON MALAY SUBJECTS. and wife either directly or through their accredited representatives. It must be absolute and may not contain any provisions irreconcilable with the theoretical aim of marriage. It must be entered into for an inde- finite period (till death or divorce), not for a specified time like a week or a month. It must be actual and not promissory : a mere agreement to marry at a future date is not a valid contract. Under Shafeite law a marriage may be declared null and void if either party is scrofulous, leprous, insane or a sufferer from certain permanent congenital defects which prevent it becoming a reality. A Moslem man may marry a Moslem or Kitabiah 1 . woman, but not an idolatress; he may be the husband of not more than four women at one and the same. time. A Moslem woman may only marry a Moslem and must not have more than one husband at a time ; she is entitled to as much time in her husband's company as he devotes to her fellow-wives, but she cannot claim an equal share of his affections, for love is not to be given at will. The prohibited degrees of affinity are summed up in the statement that a man may not marry : (a) his mother, grandmother, daughter, grand- daughter, sister, aunt or niece ; (b) a present wife's mother, grandmother, daugh- ter, grand-daughter, sister, aunt or niece ; (c) a woman bearing to him any of the above relationships by fosterage ; (d) a widow or divorced wife of his father, grandfather, son or grandson. It should be added that the above rules do not prohibit a man marrying the sister or near relative of his deceased 1 Christian or Jewish. Digitized by Google LAW: MUHAMMADAN LAW IN MALAYA. 51 or divorced wife; they forbid his being married to two very near relatives at the same time. The above statements summarise the Moslem law of marriage except in so far as it deals with the obsolete question of slavery. The law seems simple enough, but its interpretation in special cases has inspired a vast literature. What are the necessary words in a marriage contract ? Is a Christian a competent witness ? Can he give a Muhammadan girl in marriage ? What is the legal effect of a guardian's carelessness in attending to the in- terests of his ward ? What is to be done when an agent exceeds his instructions and marries his employer to the wrong woman or to two women — especially two sisters— at one and the same time ? What course is a husband to pursue if a Christian wife demands payment of her dowry in pork ? What exactly constitutes relationship by foster- age? If a man is married to two wives — the one an infant, the other an adult — and he finds the elder wife suckling the younger, what does the law expect him to do ? If the law compels him to divorce both (one being now a wife's foster-mother and the other a wife's foster- child) must he forfeit their dowries through no fault of his own? It is quite clear that we cannot follow the marriage law through all its intricacies. A Malay bride's wali or guardian usually employs an agent or wakil. This wakil is a man versed in the law ; he knows the proper Arabic formulae by heart and he supplies compe- tent witnesses for the ceremony : in this way the validity of a marriage is ensured. But it must always be remem- bered that the average Malay looks upon the true religious ceremony much as a French father looks upon the civil procedure which validates a marriage; it is sufficient for legality but for nothing more. The true Digitized by Google 52 PAPERS ON MALAY SUBJECTS. Malay wedding-ceremonies lie outside Moslem law: the henna-staining festivity, the bridegroom's proces- sion, the mimic fights, the ceremonial ablutions of the newly married pair — all these prominent features of a Malay marriage belong to an older law than that of Shafei. A wedding before the religious authorities is like a marriage before the registrar ; it is tolerated only. A Malay would consider that his daughter had disgraced herself if she was satisfied with a marriage before the local kadzi. Again, according to Shafei, no woman cau give her- self (or anyone else) in marriage. If a girl is a virgin and under age, it is considered immaterial if she even consents to a marriage, for what can she really know about the meaning of the contract ? In its eagerness to protect the interests of virgin minors the Shafeite law has rather overreached itself. It trusts no guardian except an ascending agnate. It presumes that a father or grandfather will have sufficient affection for a young girl to allow of his being entrusted with the power of giving her in marriage, but it does not presume the same of an uncle or even of a brother. This point creates a difficulty in countries like Malaya where immature orphan girls are occasionally wanted in marriage. The difficulty is got over by the fact that Shafei allows his disciples to differ from him on isolated points. The marriage of minors is therefore a point on which guardians find it occasionally convenient to disagree with Shafei ; they adopt the view of Abu Hanifah that a guardian can give an immature ward in marriage provided that she is permitted to repudiate an unsuitable marriage contract when she comes to years of discretion. This expedient is known as baleh madzhab or balek madahap — "going Digitized by Google LAW: MUHAMMADAN LAW IN MALAYA. 53 back on one's school of law." Not that the average Malay parent understands the real points at issue. He does what he is told to do by his legal advisers, who take advantage of this expedient in order that they may surmount a difficulty. Sometimes the hindrance is of another sort. It may happen that a girl's legal guardian puts difficulties in the way of her getting marrried. In such cases the kadzi is entitled to step forward and to call upon the guardian to do his duty by the girl or to renounce the position of her custodian. "To her that hath no icaM" — so runs a traditional saying of the Prophet — " the civil authority is ivali " : the guardian by birth resigns his position, and the guardian by law takes his place. If there be no kadzi available, a girl may go with hier prospective husband before any person who has the education of a kadzi and can ask that person to act as arbitrator and even to give her in marriage should he think it advisable. Islam considers that it is the duty of a guardian to find a suitable husband for his ward. The Malay rules regarding the "dowry" or settle- ment made by the bridegroom on the bride are very interesting because they represent a curious compromise between Muhammadan law and ancient Indonesian custom. Moslem jurists recognise one payment, the mahr; Malay customary law insists on a whole series of conventional presents, beginning with betrothal and sometimes continuing till the birth of the first child or even later. A sort of compromise has been arrived at by identifying one of these many presents, the mas kawin> with the Arabic mahr or dowry. The mas kaivin ap- pears, in former times at least, to have been a mere fee or customary wedding-payment and to have been some- times fixed so high as to discourage marriage in im- Digitized by Google 54 PAPERS ON MALAY SUBJECTS* poverislied districts and sometimes so low as to be no check on hasty divorce. All this is quite wrong, from the Moslem point of view. The mahr is not a payment or present to a woman's relatives ; it is a settlement on the bride herself who can claim it as her absolute right. This Moslem view is gaining ground. Every Malay woman now gets either a dowry or a deferred dowry — a sum of money which the husband must pay her if he divorces her without sufficient cause. This deferred dowry is a real check on hasty separations. The old theory of a " customary payment/' however, shows itself in the fact that in many districts the amount of the dowry is conventional and does not depend on the wealth of the contracting parties. The Moslem check on hasty divorce is the mahr ; the old Indonesian check seems to have been what is known as the sharikat. In districts where the dowry is more or less fixed by convention we find that a divorced wife or widow has a claim on her husband's property to the extent of one third of their "joint earnings." The calculation of this third is of course a matter of great difficulty and leads to endless disputes. An arbitrator is usually called in ; he makes an approximate estimate of the increase in value (if any) of the husband's pro- perty during the period of the marriage and he allows the wife or widow her share. Malay public opinion is also in favour of considering that all jewellery and all household requisites — such as pots and pans — are the absolute property of the divorced wife or widow. The fact is that ancient Malay custom gives a woman a better status than she gets from Moslem theory. In Rembau, a Malay may not even marry a second wife without obtaining the special sanction of the ruler of the country, Digitized by Google LAW: MUHAMMADAN LAW IN MALAYA. 55 while, in other States, the first wife's consent is expected before a second wife is taken. All this is quite un- necessary according to Muharamadan law. In order to avoid disputes as to the paternity of children the law forbids the speedy remarriage of widows, of divorced women and of women whose marriages have been annulled after consummation. It prescribes a period of time (called the iddah) 1 during which a woman is not free to marry again, and it gives her the right (if divorced) to claim maintenance from her husband during the whole duration of her iddah. An ordinary decree of nullity of marriage is treated as a divorce ; it does not render the children illegitimate, nor does it deprive a woman of her rights to dowry and maintenance. Like the law of marriage, the Moslem law of divorce is very simple in its main provisions but difficult of interpretation in occasional instances. A man may divorce his wife at any time, with or without cause for complaint against her ; a wife may divorce her husband by simply " redeeming " herself or paying him compen- sation for the loss of his conjugal rights. Divorce does not even entail the parties going before a court or registrar: it is perfectly valid wherever pronounced and whether witnesses are present or no. Such, at least, is the theory. In practice, however, things are very different. A man who divorces his wife has to pay her a certain amount of money for dowry and maintenance and has to meet a good deal of hostility on the part of her relatives and a good deal of unwillingness on the part of others to allow him to marry a second time. 1 Three clear periods of purity, or about 100 days. But if the wife is pregnant she may not re-marry till she has been delivered. Digitized by Google 56 Papers oft Malay subjects. Moreover, if a raau does not divorce his wife formally and with proper publicity he is liable to have the facts disputed and to expose himself to expensive litigation. In practice, therefore, an ill-assorted marriage is only dissolved after much family discussion and with the full knowledge of the lcadzi, who listens to both parties and tells them what to do and how much they will have to pay or to receive. In theory there are two kinds of divorce — the talak or divorce by the husband, and the Ichula 9 or divorce by the wife — but from a popular or practical point of view, there are six different kinds of divorce : (1) the provisional divorce, (2) the incomplete divorce, (3) the full divorce, (4) the absolutely irrevocable divorce, (5) the divorce by mutual consent and (6) the divorce by redemption or purchase. The provisional divorce comes about more or less in the following way : when the marriage ceremony is over the bridegroom is sometimes requested to pronounce a talilc or formula of conditional separation, such as " If I absent myself for six months without sending any letter or money to my wife she is divorced." In a country whence people are apt to emigrate in search of a living or to disappear on pilgrimages to Mecca, the position of a deserted wife would be intolerable but for some expedient like the tali/c which enables her to go before a lcadzi, prove her case, and obtain from him an assurance that she is free to marry again. An incomplete divorce (the first or second talak, as it is called) arises as follows : if a man says to his wife, " I divorce you," and then repents of his action, he may "recall her" at any time up to the expiration of her iddah, but he can only exercise this right of recall twice ; on Digitized by Google LAW: MUtiAMMAbAN LAW IN MALAYA. 57 the third talak the separation is permanent. The complete divorce (the third talak) takes place when the period of recall has been allowed to lapse unutilised or when the privilege of recall is no longer allowed, or when three successive divorces are pronounced — e.g., "I divorce you once, I divorce you twice, I divorce you thrice." In such cases the husband usually counts out to the wife three articles such as three pieces of paper or three bits of areca-nut so that there may be no misunderstanding about the number of divorces pronounced. After a complete separation of this sort the parties cannot come together again without a formal marriage ceremony. Muhammad, however, to check hasty and. ill-considered separations, made it a law that the remarriage of fully divorced persons was not to be permitted unless the woman had in the interval been married (by a fully consummated marriage) to a third party. This intermediate marriage is, of course, a very serious check on hasty divorce. In the very rare event of a man fully divorcing and remarrying the same wife twice — making with the original marriage three marriages and divorces in all — he is not permitted to remarry her any more ; this is the absolutely irrevocable divorce. The divorce by mutual consent takes place when an arbitrator is called in by both parties to decide what is to be done ; technically, this is an ordinary divorce by the husband (who is made to pronounce it), but it does not necessarily involve the financial consequences of the ordinary talak. The sixth kind of divorce or " divorce by purchase " is a separation at the instance of the wife. A tradition of the Prophet tells us that a certain woman went to Muhammad and made a complaint against her husband. Muhammad advised Digitized by Google 58 PAPERS ON MALAY SUBJECTS. her to surrender her dowry so as to induce her husband to divorce her. " I will give that and more," said the woman. " Nay, not more," was the reply. Moslem law sets its face against the husband using his position to extort an unfair amount of compensation from the wife, but it allows him to claim something more than the dowry that he himself has paid. Malay custom has it that the dowry shall be returned doubled. This form of divorce does not entail an intermediate marriage should the parties repent of their action and decide to marry again. It is, however, rare. A Malay woman cannot usually afford to pay a double dowry and she has other methods of exasperating her husband into divorcing her — one favourite method being to lock him. up in his house and then (in the hearing of the neighbours) to scream out some interesting but abusive details about his most private affairs. We have now dealt with the principal elements in the Moslem law of marriage and divorce. We can easily see that the strictly legal position of the wife is unsatisfactory owing to the preponderant consideration given to the authority of the husband. Muhammad found woman in a state of subjection; he could not release her altogether from the results of centuries of hardship, but he did much to improve her position. He insisted on her being treated with respect, he gave her certain absolute rights to dowry and maintenance, and he checked hasty and inconsiderate divorce. Modern Moslem law, however harsh in theory, can be readily adapted to meet a woman's interests. If a father wishes to secure his daughter against the risk of her husband marrying other wives, he can do so by stipu- lating for a heavy deferred dowry and for a conditional Digitized by Google LAW: MUHAMMADAN LAW IN MALAYA. 59 divorce to come into effect if a second wife is taken. The husband, in such a case, has so much to lose that he dares not marry a second wife in the lifetime of the first. If a man wishes to protect his daughter against the evils of desertion, he can do so by the talih process which has been already explained. If a man who is married to four wives wishes to keep them and yet legitimize his son by another woman, he can do so by arranging for one of them to divorce him by the Jchula' process; he thus becomes free to marry and divorce the child's mother and then to remarry his original wife without the unpleasantness of seeing her wedded to someone else as required by the ordinary ialah procedure. If a marriage is pronounced invalid through no fault of the wife, English law brands the children as illegitimate ; Moslem law on this point is kindlier than ours. Much may be made of the fact that a Muhammadan, besides having four wives, can have as many slave-mistresses as he pleases. Moslem law did not, however, create or insist upon slavery ; it found the institution in existence and regulated the position of the slave. Apart from the slave question — now, happily, a thing of the past — Muhammadan law does not allow a man to have mistresses ; it punishes the adulterer with death. The profligacy of wealthy or princely Malays is not to be attributed to their religion, but is largely ascribable to the fact that English law tolerates the laxer features of Islam without enforcing the stricter.Even, as matters stand, a special enactment l has been introduced of late years into the Malay States to enforce more rigid rules of morality among Moslems than among Christians. This step was taken at the request of the Malays themselves. 1 " Muhammadan Laws Enactment." Digitized by Google 60 PAPERS ON MALAY SUBJECTS. The law of marriage and divorce is the only branch of Muhammadan jurisprudence that is fully recognised in the Straits Settlements courts, but certain other branches are worthy of special notice. The first is the law of testamentary and intestate succession which is accepted by Moslems in the Federated Malay States and is often followed (though not the true law) in the Straits Settlements. On the question of testamentary succession the following tradition (recorded by one of the Prophet's contemporaries) is worth quoting in full : In the year of the conquest of Mecca, on my being taken so extremely ill that my life was despaired of, the Prophet of God came to pay me a visit of consolation. I told him that, by the blessing of God, having a great estate but no heirs except one daughter, I wished to know if I might dispose of it all by will. He replied, " No," and when I severally interrogated him if I might leave two thirds or one half he also replied in the negative, but when I asked if I might leave a third, he answered, " Yes, you may leave a third ; but a third to be disposed of by will is a great portion and it is better that you should leave your heirs rich than in a state of poverty which might oblige them to beg from others." In accordance with the principle so laid down, a man may dispose of one third of his property by will> but he has no right to use his power in such a way as to defeat the aims of the law of intestate succession. In actual practice, when a Malay makes a will, he does so in order to leave money to charity or to the mosque authorities as a sort of fine for having neglected his religious obligations during his lifetime ; he does not make a will to favour one heir at the cost of another, nor has he the power to disinherit. If all the heirs are willing to agree to an unequal distribution of the property among themselves, they are at liberty to do so, but they are not compelled to recognise any special legacy made to one or more of Digitized by Google LAW: MUHAMMAD AN LAW IN MALAYA. 6 1 them out of the available third of the estate. The object of this limitation of testamentary power is to prevent favouritism and family disputes. The Colonial courts recognise wills that are in accordance with English law even though the wills may violate the doctrines of Islam ; but no respectable Malay would use the privileges granted him by an " infidel " government to commit an offence against Islam. We thus really get a double system. The judge or district delegate gives powers under our law to an administrator or executor — and then this administrator or executor, with the full approval of the legatees or heirs, distributes the property on the lines of Moslem custom. One law is professed and another is followed. On the whole, not very much in- justice is done; but it is, perhaps, to be regretted that British courts should subsidize, so to speak, the violation of the commands of the Prophet. In the matter of law, as on the question of morality, the Anglicised or "en- lightened " Malay of the Straits Settlements may often be the worst offender against his own national or re- ligious codes. The Muhammadan law of intestate succession differs materially from that of England. To begin with, there is no law of primogeniture in the disposal of real property. Next, there is the rule that a man's share is twice the share of a woman. Thirdly, we have the Moslem principle that the nearer heirs exclude the more remote — thus, children exclude grandchildren from inheriting, even though some of the latter may represent deceased sons or daughters of the legator. Finally, there is the point that people inherit per capita and not per stirpes: for instance, if a man leaves no surviving sons but five grandsons, all the grandsons Digitized by Google 62 PAPERS ON MALAY SUBJECTS. inherit equal shares even though four are the sons of one father and the fifth an only son. If the rules as to dowry are considered to be a set off against the reduced rights of inheritance allowed to women, the only point that seems thoroughly inequitable in the Moslem law of intestate succession is the exclusion of the children of a deceased son from participation in their grand- father's estate should their uncles be alive to inherit it. Yet, even here we must not be too hasty in condemning. Muhammad himself, a posthumous son born in the lifetime of his wealthy grandfather Abdu'l Muttalib, suffered from this very rule of law, but such was the bond of family feeling (which compelled uncles to look after their fatherless nephews) that the Prophet, on becoming all-powerful, did not alter the law though it had deprived him of a share in the ancestral estate. The whole aim of Moslem law is to maintain the moral bond connecting the members of a family, and we very rarely hear of any Malay who has wealthy relatives being thrown upon the charity of the community. The Muhammadan law regulating religious endow- ments (ivakf) deserves attention owing to the frauds than can arise out of the differences between it and English law. Unlike many religions Islam is very chary about accepting endowments. If a man build a mosque with the avowed intention of giving it to the public, the gift is not legal until a public religious service has been held in the completed building. If a man presents a fountain, the fountain must have been built and used before the man and his heirs lose their right to it. If the gift takes the form of an appro- priation for mosque revenues, the property must be actually handed over to the local authorities before it Digitized by Google LAW: MUHAMMAD AN LAW IN MALAYA. 63 ceases to belong to the donor. English law is different ; it attaches great value to documentary transfers. It therefore allows certain abuses to spring up. In some cases, trust-deeds are drawn up that reserve rights to a donor's family, the object of such deeds being practically to secure an entailed income for a man's descendants, thereby evading death-duties, defeating the law of in- testate succession and keeping up a lasting position for a family. Another abuse rests upon the English rule that thirteen years' undisputed and absolute possession of landed property gives a title to it. A Muhammadan trustee may not sell or alienate mosque-property, but he is enabled by English law to convey it away by collusion. The Acheen Street Mosque in Penang has lost property of enormous value through adverse occupancy. A third abuse has now been put an end to by recent land laws. In former times, a man could convey land to a mosque by a trust-deed without registering the conveyance or actually handing over the property in the manner required by Moslem jurispru- dence. Under its own religious law the mosque could not claim the property; under English law the man's creditors could not seize it. In this way a man might go on for years drawing revenue from lands and houses that ought either to have been devoted to religious objects or to paying his lawful debts. Finally, at the man's death, the mosque (under Moslem law) lost all claim to an endowment to which effect had never been given. This last point invites attention to a very interesting difference between Malay and English legal notions — the importance attached by the former to oral and by the latter to documentary forms. The Malay desires Digitized by Google 64 PAPERS ON MALAY SUBJECTS. proper publicity where the Englishman wants a durable record. If a Malay wished to convey a house to his son, he called in all the neighbours, told them all the facts, and then installed his son as master of the house. His idea was that such proceedings and such publicity made future disputes impossible. He would have looked upon a deed or document as a very tricky business when compared with the honest method of taking the whole world into one's confidence. Although the old Malay practice is more suited to primitive societies than to the requirements of modern commerce, it rests upon foundations of sound common sense. In Penang, at least, a good deal of fraud was perpetuated by secret convey- ancing before the present registration laws gave a certain publicity to land ownership. The reasons given for introducing partnership registration in Singapore also rest on the fact that secrecy helps fraud. When once the proper publicity has been secured, the Malay— like all Asiatics — prefers the evidence of things to the evidence of words. He likes to have something to show. If a man wishes to trump up a case against his enemy, he hides stolen goods or illicit chandu or coining im- plements in his enemy's house. He does not trouble himself so much about suborning false witnesses, he leaves that to the defence. As prosecutor, he is content with the , " sign " (tanda) or corpus delicti, and with the evidence of the police. A legal detail of some importance is the question of the form of oath to be administered in courts of justice. Contrary to the generally received opinion in the Straits, the Malays (and many other Asiatics) have the greatest possible respect for the sanctity of an oath, provided that the oath is taken on something really binding. It Digitized by Google LAW: MUHAMMAD AN LAW IN MALAYA, 65 • is quite a common occurrence in the Straits courts for a case to be stopped in order that the parties may take an oath in a mosque or at a shrine (kframat) or by cutting off a cock's head. Men who would disbelieve a whole host of witnesses will abandon a prosecution at once if the defendant will swear in proper form that he is innocent. Purgation by oath is not simply a Malay custom ; it is fully recognised by Moslem jurists and goes far to disprove the reckless assertion that a native is ready to perjure himself at a moment's notice. Unfor- tunately, the formula prescribed in the Straits courts 1 is not a valid oath. The form at present in use runs : " I swear in the presence of God Most High that I will speak the truth, the whole truth, and nothing but the truth." Muhammadan law insists — on the authority of the Prophet himself — that oath shall be either " by God," " by the name of God," or by God under some such designation as "the All-Merciful." "Whoever takes an oath other- wise," said the Prophet himself, " is verily a pagan." To swear " in the presence of God " is precisely one of those evasions that Muhammad so severely condemned. Nor does the formula even possess the merit of being a real affirmation ; it omits the prescribed technical term. The fact is that the swearing of witnesses in our courts is looked upon by many respectable Malays as a profane farce ; the famous writer Abdullah tells us in his auto- biography that he refused a well-paid interpretership rather than administer the oath to witnesses. Another very radical difference between Moslem and English ideas of jurisprudence lies in the relation between the executive and the judicial power. The English theory separates the two functions ; the Muhammadan 1 The F.M.S. formula is different. Digitized by Google (?6 PAPERS ON MALAY SUBJECTS. ideal unites them. Tbe model judge, according to Malay- ideas, is the man who will listen to a tale of wrong and then take steps to help the oppressed and to bring the oppressor to justice. The English idea is to give a man a summons and then let him fight his own case as best he can, though he may have no legal knowledge and no notion of what can be admitted as evidence. In country districts a District Officer, knowing a good deal about the parties to a case, is inclined to be indulgent to a respectable but garrulous witness who will not keep to the point or observe the rules of evidence, but, in the towns, every native has to work up his case and arrange his testimony before he comes into court. If he can afford it, he engages counsel ; if he cannot pay for a pro- perly qualified advocate, he engages a native hedge-lawyer who tells him what to say and how to say it. Of course, this system of working up cases rather puts a premium on perjury and on professional witnesses, and tends to turn a judicial proceeding into a mere contest of cunning* Secret societies, though they aid malefactors, are often only a sort of insurance against the risks of malicious prosecution. The Moslem theory of jurisprudence takes the view that a judicial proceeding is an investigation in which the judge is not an umpire but an active seeker after truth. It also draws a more marked distinction than we draw between issues of fact and issues of law. The kadzi, or judge, investigates a matter and decides as to the facts. If he is doubtful as to the law, he states a case for the consideration of the legal adviser or mufti. In no case does Moslem jurisprudence allow a doubtful or novel point of law to be decided by a man whose sym- pathies may be affected by the facts that are in issue. The doctrine that " hard cases make bad law " is very Digitized by Google LAW; MVHAMMADAN LAW IN MALAYA. 67 practically applied. Another difference between English and Muhammadan law is that the latter is theoreti- cally unchangeable. A ruler may supplement but he cannot alter the law of the Prophet, however unjust the law may seem. It is a great tribute to the virtues of Moslem jurisprudence that ten centuries have not made it out of date. We, who suffer from the uncer- tainty of an ever-changing statute-book, will do well to compare the enduring character of the work of the ancient and primitive Arab jurists with the composition of the highly educated draftsmen of our own local laws. Another striking feature of Moslem jurisprudence is the fact that a man learned in the law is forbidden to seek office as a judge and is even directed to refuse a judgeship should the post be offered him, provided, of course, that other satisfactory arrangements can be made for carrying on a necessary work. It was not for a mere whim that the great Arab jurist, Abu Hanifah, suffered scourging and imprisonment rather than become a kadzi. The Moslem ideal was that the study of the divine law should be absolutely free from the taint of self-seeking. In a sense this was only an ideal, for in the days of Malay rule and even in the days of the caliphs the official judges were usually subservient to the ruler and were occasionally ignorant persons who could neither read nor write. But a judge was not necessarily an official. Any man learned in the law could be called in as an arbitrator to settle a dispute or to investigate the details of a question of marriage, divorce, or intestate succession. If the official judges were not to be depended on, the people were permitted to refer their doubts and quarrels to the true juris- consults, the men who like Abu Hanifah sought neither Digitized by Google 68 PAPERS ON MALAY SUBJECTS. office nor money. Such men have usually been forth- coming. The self-denying example of the great Arab jurists was not wasted ; it turned the study of Muham- madan law into something more than a mere profession for earning a livelihood. There is no more painful contrast in British Malaya than the difference between the native votary of English law — the lawyer burok, as he is contemptuously called — who seeks to earn a dishonest fortune by perjury and fraud, and the true student of the law of the Prophet who can hope for no worldly advantage, but who loves the law either for its own sake or for the sake of the Prophet who inspired it or for the sake of its high ideals of truth, of justice, and of unselfish service to one's fellow-men. Digitized by Google PRINTED AT THE F.M.S. GOVERNMENT PRESS. KUALA LUMPUR. Digitized by Google Digitized by Google Digitized by Google Digitized by Google PAPERS ON MALAY SUBJECTS. [Published by direction of the Government of the Federated Malay States. 4 ] R. J. WILKINSON, F.M.S. Civil Service, General Editor. LAW. PART II. THE NINETY-NINE LAWS OF PERAK. EDITED AND TRANSLATED BY J. RIGBY, Supervisor of Customs, Land. KUALA % LUMPUR: PRINTED BY J. RUSSELL AT THE P.M.S. GOVERNMENT PRESS. 1908. 500-10/08. Digitized by VjOOQIC Digitized by Google PUBLIC 11. Rules and customs regarding rajas and penghulus 99. Relations of rajas and chiefs 93. Duties of chiefs 78. Selection of chiefs 98. Rules applying to penghulus 79. Rules applying to kathis 58. Rules applying to officers of mosque 25. Conduct of judge 1. Judicial procedure 73. Persons deciding cases 32. Principles on which cases decided 22. Procedure LAW. 12. Duties of officers in charge 21. Rules as to litigation 24. Appearance before raja 77. Claims to throne 97. Interruption of proceedings 92. Bases of prosperity 52, 3, 23. Homicide 91. Person found dead. Some- one suspected 4, 56. Infidel slays believer 2. Wounding 8. Abusive language 70. Keeping of elephants 71. Keeping of buffaloes 14. Wounding by tame animals II. PROPRIETARY RIGHTS AND DUTIES. 90. Camel dies while in posses- 34. Person dies childless 89. 88. 87. sion of hirer Shop burnt while in posses- sion of hirer Carriage of goods Person damages hired boat 76. Effects of foreigners 50. Duty to strangers 69. Dog bites someone 44. Padi eaten by another's animals 47. 46. Goats damage property Buffaloes lost after sale 42. Crops eaten by another's animals 43. Person clearing land 15. Crops destroyed 13. Abandonment of tenement 45. Keeping of lions and ele- 20. Things lost by travellers phants 19. Behaviour of lodger 48. Killing of poultry 33. Division of estate 26. Negligence 35. Division of estate of young unmarried man 17. Law of debt Digitized by Google 4 i III. SLAVERY, SOECEET AND MISCELLANEOUS. 36. Slavery 49. Person visiting foreign 16. Fugitive slaves country 9, 10. Marriage of slaves 74. Warfare 63. Persons in search of know- 59,80. Pawangs ledge 29. Payment of pawangs 64. Persons who have attained to 60. Midwives wisdom 27. Medical fees 55. Conduct of rich 28. Cure of demoniacal possession 18. Conduct of poor 95. Medical fees 62. Care of boys 96. Ceremonial bathing 72. General conduct 41. Old women IV. EELATIONS OP 66. Points to be considered before marriage 85. Prohibited degrees 83. Marriage of foster children 61. Duties of parents with mar- riageable girls 65. Eules applicable to persons newly wedded 9. Amount of dowry 84. Man marrying woman suckled by his own wife 37. Woman pregnant before marriage, then divorced 5, 38. Woman pregnant, father uncertain 67. 86. Man seducing wife of another 68. Man seducing girl betrothed to another THE SEXES. 6. Penality for seduction 30. Girl refuses to cohabit 41, 7. Girl asks divorce, no suffi- cient cause 54. Grounds for divorce by woman 82. Custody of children 39. Maintenance of divorced woman 75. Devolution of inheritance 31, 53. Division of property after divorce 50. Adultery 81. Husband wants divorced wife back 57. Dowry on second marriage i i 1 Digitized by Google GENERAL EDITOR'S PREFACE, This little pamphlet on an old Perak Code is being pub- lished to illustrate the working of the adat thnhxggong or "autocratic custom" of the ancient river States. The "Ninety-nine Laws" (as this code is called) were not altogether what they profess to be. They had never been enacted by any legislative authority and were always liable to be overridden at the arbitrary will of the king. They were a compromise between the law of the Prophet and the ancient adat of the country. In some respects they bear the impress of fraud, whether intentional or otherwise, for they explicitly claim to be the work of Nushirwan and Buzurjmihr, who certainly had nothing whatever to do with their compilation. Who then drew up these laws ? I have never seen the original text of the code. Of the two copies upon which our text is based, one was given me by the late Mr. D. H. Wise ; the other was lent me by Mr. A. Hale. One of them has the following note : These laws were brought to Malaya by Saiyid Hasan. In the days of Sultan Ahmad Tajuddin (Marhum Tanah Abang)—hi8 chief minister was Saiyid Abdul Majid. From him (Saiyid Abdul Majid) they came down to To* Tambak, and whenever any member of this family of Saiyids became Mant$ri he used these laws, ranking them in importance as second only to the Law of the Prophet. In this way the code does not claim to be a national code ; it is merely a book of reference kept by a private family and used by the members of that family when called upon to advise the Sultan on legal issues. This Digitized by Google PAPERS ON MALAY SUBJECTS. book of reference enabled the descendants of Saiyid Abdul Majid and Saiyid Hasan to pose as experts in matters of law and to have a hereditary claim to the office of Adviser or MantfH._ .The same version of the code also contains the following note : Dato' Saiyid Jafar, of Kuala Teja, allowed this copy of the law to be made for Mr. Leech, District Magistrate* Kinta. The editing presents no difficulty. The two versions (they are almost identical) have been collated by Mr. Rigby to produce a text that may be taken as : authoritative so far as these "Ninety-nine Laws" go. But who were Saiyid Jafar, Saiyid Abdul Majid, Saiyid* Hasan and To' Tambak? And why do they refer to T Nushirwan and Buzurjmihr? ' Ut * Saiyid Jafar of Pulau Teja was a person of consider- able importance in Perak during the closing years of the nineteenth century. A few months before his death he was given the title of Orahg Kaya Bestir, 1 the highest local dignity short of royalty. He had therefore the right • to speak as an accredited representative of the great Saiyid family that had the custody of these laws. We now pass to the history of that family. Saiyid Abubakar, the first great Manteri, liv&d in the reign of Sultan Iskandar Dzu ' 1-karnain. We know only four things about this Saiyid. He was a son of IV Tambak ; he had a brother, Saiyid Hasan, who married the Sultan's sister; he was a Manteri; and he acted as Bendahara. From these four facts we can infer a good deal. Sultan Iskandar Dzu 5 1-karnain, better known as Marhum Kahar came to the throne in 1765. He was a strong-willed ruler and took away the great title of Bendahara from the descendants of Megat Terawift.;; 1 I overlooked this in my "Notes on Perak History." '^History I and II, p. ?$. Digitized by Google THE NINETY -NINE LAWS OF PERAK. He must have been very friendly to Saiyid Abubakar whom he made Mantgri and acting Bendahara, and whose brother married his sister. We can easily imagine the position of affairs at the Sultan's court. The Saiyid was a religious aristocrat; the Bendahara represented the old native nobility. The Sultan fa- voured the former; the chiefs probably favoured the latter. By making the Saiyid his advising minister (Manteri) Marhum Kahar struck a blow at the Benda- hara, who was ex-officio Prime Minister of Perak. The Saiyid then pressed his advantage and succeeded in ousting his rival and even in crowning the title of Manteri with the time-honoured dignity of Bendahara, the highest honour in the State. He triumphed for a time, and then the Sultan stepped in and made the position of Bendahara an appanage of his own royal house. Saiyid Abubakar was succeeded in the title of Mant&ri, first by his brother, Saiyid Husain (known as (To 9 Mantgri di-Bota)> and then by his son, Saiyid Shamsuddin, known as To' Manteri Ghegar Galah. His descendants still live at Chegar Galah. The policy of ambition that he initiated was kept up by his relatives, who ultimately succeeded in wresting the title of Orang Kaya BSsar from an old Malay family that had pre- viously possessed it. This dignity ranks immediately after the Bendaharaship. It was allowed to remain ever afterwards in the family of these Saiyids, but in 1862 the title of Manteri was taken from them and given to Che* Ngah Ibrahim, Ruler of Larut, on the pretext that one family should not monopolise two great dignities. Such then is the history of the title of Manteri. If further evidence were needed to show that the date of Digitized by Google PAPERS ON MALAY SUBJECTS. Saiyid Abubakar can hardly go back further than the reign of Marhum Eahar it would lie in the pedigrees of the two families, that of Saiyid Abubakar and that of the Megats whom he supplanted : Saiyid Abubakar Mggat Abu Kasim (2V MantSri BVndahara) (Bendabara ; d. at Pulau Tiga) Saiyid Shamsuddin Megat Mashhur (To 9 Mant?ri Chfyar Oalah) (Dato* Sri Maharaja; d. at Kota Lama) Saiyid Hitam Besar Megat Abdullah Saiyid Muhammad Megat Pendia (whose grandson is now living (who was alive in 1881 and whose at Chegar Galah) " descendants are now living at Kota Lama) The Saiyid Abdul Majid mentioned in the "Ninety- nine Laws " was the grandfather of Saiyid Abubakar, The full pedigree at this point is as follows : Saiyid Husain al-Faradz (who first came to Perak) Saiyid Hasan Saiyid Abubakar I Saiyid.Mustafa Saiyid Abdul Majid Saiyid Jalaluddin (2V TambaJc, of Pulau Pisang) Saiyid Abubakar (To 9 Mantfai B^ndahara) If we assume the truth of Saiyid Jafar's assertion that Saiyid Abdul Majid was Mantgri to Sultan Ahmad Tajuddin, the assumption may help us to date the Sultan, but it will not explain how Saiyid Hasan could have had Digitized by Google THE NINETY-NINE LAWS OF PERAK % the foresight to anticipate that his descendants would be Legal Advisers to the rulers of Perak. Moreover, as the " Ninety-nine Laws " are coloured by local custom, it is hard to believe that they were brought to Malaya in their present form by Saiyid Husain or Saiyid Hasan. There is a better explanation. This family of Saiyids was always distinguished for learning and holiness. 1 It numbered among its members To 9 Tambalc, of Pulau Pisang, who is reckoned as a saint, and Saiyid Abdullah al-Mashhur (brother of Saiyid Abdul Majid), another saint, whose shrine is at Limau Purut. It is therefore likely enough that these ancient Saiyids were, by family tradition, students of the religious law and that the author of the code only put into written form what had been handed down to him by his ancestors. The " Ninety-nine Laws" are a compromise between religion and adat. The author's traditions were on the side of religion ; but his long family connection with Perak caused the strict letter of the law introduced by Saiyid Husain to be much modified by the actual practice of the people of the State. Another point next suggests itself. We can under- stand the Malay element and the purely Moslem element, but why is the Persian element so strongly marked in this code ? Why does the author try to impress his hearers by referring to Nushirwan and Buzurjmihr instead of quoting Abu Hanifa and Shafe'i ? Here again we have to go into the family history of these Saiyids. They claim descent from Muhammad through his grandson, Husain, and his great-grandson, Zainu'l- 1 I am inclined to think that the Saiyid Jamalullah, who lived before the family came to Perak (and of whom they are very proud), was also a great Moslem saint. Digitized by Google PAPERS ON MALAY SUBJECTS, abedin ; they assert that they can go still further back and trace their descent without a break to Adam. I have not seen the full pedigree to Adam — it is mislaid or lost — but there is no difficulty about reconstructing it. The ordinary Malay royal pedigrees (such as those of the Malacca Kings or of the Sultans of Perak) go through Sang Sapurba to Raja Suran, from Raja Suran to Alexander, through the Sasanian Kings of Persia, and from Alexander to Kaiomorz, "son of Adam," through the Kaianian Kings of Persia. All this account is Per- sian; it was probably brought into the Saiyid family history by the old tradition that a daughter of the last Sasanian king married Husain, the Prophet's grandson, and became the mother of Zainu'l-abedin, from whom these Perak Saiyid s claim descent. The political effect of this story was that it made the Persians strong parti- sans of the family of Ali as against the Ummayad Caliphs of Arabia and Syria. It helped to split the Moslem world into Sunnites and Shiites — and curiously enough this Saiyid family "code" of Sunnite Perak takes the Shiite side in the controversy. Mr. Rigby refers to the rules about the Hashimites - as an " unpractical " detail in the code. So it is, from the point of view of the State of Perak. But the Perak Saiyids were themselves Hashimites, and they lay it down that it is a humiliation for a Hashimite woman to marry any one but a Hashimite. Here again we have the Persian view as against the Arabic view that a Kuraish is the only fitting mate for a Kuraish. The Kuraish is the whole clan of the Prophet; the Hashi- mites are the descendants of Ali. Moreover this family of Saiyids succeeded in establishing its arrogant claims. Its daughters married into other Perak f amiliesj but the Digitized by Google THE NINETY-NINE LAWS OF PERAK. children of these marriages bore the title of Mir and took precedence of their fathers. Even the great house of the Sri Adika Raja gave up its ancient and historic title of Tun as soon as it could claim the dignity of Mir through a marriage with the daughter of one of these Saiyids. The character of the " Ninety-nine Laws " is there- fore intimately associated with the history of this great Perak family. I am not prepared to suggest that the Saiyids were of Shiite origin, but I feel sure that they got their family history from Shiite sources. They played a great part in the little Perak world. They overthrew the old Bendahara, the greatest of the ancient Perak Chiefs; they usurped the position of the Orang Kay a Besar ; they virtually absorbed the house of the Sri Adika Raja ; and they raised their own special title of Manteri to the highest grade in the State. So much of their history we know. We also know that they held the six golden keys of the State Treasury, that they were Legal Advisers and that they laid down in these " Ninety-nine Laws " what they thought the laws should be. The influence of such a family must have been even greater than its power, and the Persian tinge that it gave to all Malay tradition and law makes it unnecessary for us to build upon references to Buzurjmihr and Nushirwan any far-fetched theories about Persian expeditions to Malaya. I am very much indebted to Mr. Winstedt for assistance in revising the translation and text for the press. E. J. W. Digitized by Google Digitized by Google EDITOR'S NOTE. My best thanks are due to M. Hanif , who has read the MSS. with me and elucidated many difficulties. I am also greatly beholden to Mr. C. W. Harrison, who has, with me, revised the whole and made many helpful corrections and suggestions. Without his sup- port this pamphlet might never have seen the light of day. I am fully aware that greater perfection might be attained, and errors and omissions are doubtless fre- quent, so that criticisms of value will be gratefully acknowledged and, if possible, embodied in some later edition. The translation is made from a MS. which I collated with another and does not purport to be a word- for-word translation of the MS. printed. To translate strictly any particular MS. as it stands would be to commit oneself to the vagaries of some particular copyist, and there is nothing whatever to be gained by differentiating between the values of MSS. or discuss- ing readings on the principle of dijjiciliov lectio potior. Malay is not the best vehicle for the expression of legal, moral or philosophical conceptions. I therefore decided that to devote myself to elucidating corrupt Malay phrases was labour merely lost. This translation at- tempts to be a reasonable rendering into English of so much of the available MSS. as is intelligible, which, after all, is far the larger portion. J. KIGBY. Digitized by Google Digitized by Google INTRODUCTION. The institutes of the smaller States — as of Selangor, Perak and others — may only require notice as far as they differ from the general codes of the superior States. — Raffles. The laws of Achin are interesting in so far as they may have been generally adopted by the Malays in the Straits of Malacca. — Eafflbs. For a long time Perak was a mere dependency of Achin, and it may be fairly supposed that some of the conquerors settled in the former country. — ^Maxwell. The Government is despotic. Perak has been ruled during the last three centuries by a race of chiefs, under the title of Sultan, who were connected with the ruling dynasties in Johor and Achin. — "Note on Perak " — Newbold, vol. 2, p. 25.] A Code being generally understood to be a complete and systematic body of law, or a complete and systematic statement of some portion of the law, it will be at once apparent that the " Ninety-nine Laws of Perak" cannot be called a code. They are very far from being systematic and complete. A fact which is of considerable importance in considering the general nature of this "code 5 * is that there are a number of similar " codes " spreading wide through the Archipelago. To mention a few, there are : (1) the Suria Alem, which seems to me to be one of the most ancient and to contain the strongest evidence of Hindu origin. A modern version of this code is to be found translated in Raffles' " History of Java " ; (2) the Malacca Code, translated by Newbold in his "British Settlements in the Straits of Malacca "; (3) the Johor Code, translated in the "Journal of the Indian Archi- pelago ":; (4). the TJndang-Undang of Moko-Moko, in "-Malay Miscellanies "j (5) -the Maritime Code," iir- the Digitized by Google 12 PAPERS ON MALAY SUBJECTS. "Journal of the Straits Branch of the Royal Asiatic Society," translated by Sir S. Raffles. And again a code translated by Saleeby in " Studies in Moro History." Crawfurd mentions the book of the Laws of Goa as forming one of the principal articles of the Macassar regalia. W. E. Maxwell says, in J. S. A. S., 1890, " Two codes of laws are known to the Perak Malays, though copies of them are extremely scarce among them. The Undang-Undang Kerajaan, or Law of the Monarchy . (also called TJndang- TJndang Delapan, because they were the laws administered by the Orang Bgsar Delapan, or the Eight Constitutional Chiefs) ; and the TJndang- Undang-Duablas" The former collection professes to be the Laws of Perak, Pahang and Johor, and contains many provisions identical with those of the Malacca Code. It appears, then, that these codes extend over a very considerable area from Perak to the Philippines. The question as to whether these laws were ever enforced strictly is not worth debating. It is sufficient to say that their mere existence proves that they reflect so much of the life of a Malay people as had ever been .reduced into legal shape. The following passages will give the reader a good picture of Malay law-makers at work : The term luwaran, which the Mindanao Moros apply to their code of law, means " selection " or "selected." The laws that are em- bodied in the luwaran are selections from old Arabic law, and were translated and compiled for the guidance and information of the Mindanao Datus. The chief authority quoted is the MinhdjurLAri- feen. In making the luwaran, the Mindanao judges selected such laws as in their judgment suited the conditions and requirements of order in Mindanao. They used, the Arabic text as a basisj but Digitized by Google THE NINETY-NINE LAWS OF PERAK. 13 Constructed their articles in a concrete form, embodying genuine examples and incidents of common occurrence in Mindanao. In some places they modified the sense of the Arabic, so much as to make it agree with the prevailing customs of their country. In a few instances they made new articles which conform to the national customs and common practices. It is very clear, then, that these codes are not indi- genous. Turning from the grand legal systems of the Hindus and Muhammadans the reader will be struck by the poverty of these codes. There is no attempt whatever at system, and system is the very life of juris- prudence. The extent to which these codes are based on Muhammadan law is sufficiently clear from the passage quoted from Saleeby. But the idea of a code is not Muhammadan. The Muhammadan system is based wholly on the Koran. The Koran and its commentaries contain the whole law; a lawyer in a purely Muham- madan country who produced a code would probably be regarded as an infidel and a dangerous revolutionary. For an explanation of the beginnings of these codes we must probably look for Hindu influence. The follow- ing passage from Friedrich's "Island of Bali" will show- how the problem of the origin of Malay codes is to be approached. Balinese Law Books. — These are written in prose. The accounts of them differ from each other. Eaja Kasiman names them : 1, Agama; 2, Adigama; 3, Devagama; 4, Sarasamuschaya ; 5, Dustakalabaya (the fear of the malignant Kala), a law book in which in particular the faults committed by children are punished; 6, Swara Jambu — i.e., the command, the law of India ; 7, Devadanda, — it comes in use when Wishnu appears incarnated upon earth; 8, Yajnasadma. The principal law book from India (" Manawa Dharma Sastra ") is wanting, according to all enquiries for it which I made among several / r / r Digitized by Google 14' PAPERS ON MALAY SUBJECTS. priests and persons of rank. They, however, are aware that all their laws have been derived from Prabu Manu, who, in different ages, under different names, holds the Government of the world. I found it mentioned only in the Sivasasana, the law book of the Brahmans, under the name " Dharma Sastra Kutara Manavadi," or, the law books, that of Kutara Manawa and the others. Kutara appears to me to be the same as Uttama— viz., the name of the third in the line of Manus. Possibly the original Balinese law book has been derived from Another Indian one, although the contents are upon the whole the same as that of Swayambhuwa, the first Manu. This Dharmasastra Kutara Manawa is either now in Bali and kept secret, or is one of the works . which existed in Java but were lost and not brought to Bali. There further exists in Bali a law book called Svara, issuing from the Deva Agung, and in force for all princes and persons of rank. It cannot as yet be ascertained whether it is the same work as the. Svarajambu, but it seems to be a different one, since the addition of Jambu in the latter points to its Indian origin. It is remarked by Sir W. Jones that among tie laws of the Sumatrans two positive rules concerning sureties and interest appear to be taken word-for-word from the fndian legislators. 1 The Perak Code is not the work of an Arab scholar or lawyer; it is written in homely Malay and was pro- bably pieced together by a Dato* or Saiyid who relied on the Malacca code, or Muhammadan law as taught orally and modified by custom, and in places on the genuine adat of the country. That it reflected local practices (at all events at some period of its existence) can be seen from the use of the phrase yang di-adatkan and the provisions as to paivang and bidan. Slavery was in full swing at the time. On the other hand, its unpractical nature can be seen from the mention of camels and lions, which of course are not found in Malay countries, and its rules as to the Hashimites. The most profitable way of reading these laws is to compare them closely with genuine adat. 1 As. Res. vol. III. p. 9. Digitized by Google THE NINETY -NINE LAWS OF PERAK. 1$ : A poiftt of interest in connection with the Ninety- nine Laws is the ascription of them to Nushirwan. Nushirwan or Khosru of Persia was an infidel, a Majusi; he was a contemporary of Justinian, succeeding to the throne of Persia in 531 a.d. We have, then, the remarkable fact that a Muhammadan author derives what purports to be Muhammadan law from a fire- worshipper. Furthermore, the Persians are the great schismatics of the Muhammadan world. "The clergy laugh inwardly at their own functions, the ' educated ' believe nothing at all or hold secretly to a Sufi pantheism. The Sunnite takes his sortes biblicx from the Koran, the Shiite uses a copy of the songs of Hafiz. Ali the national saint is more popular than Muhamad," says Professor Muller, We have a tempting explanation (of this Persian origin) ready to hand, "Raja Chulan, King of Ecbatana in the Persian mountains, came down with an army of Klin gs and conquered the King of Bruas. Then he went on and attacked the King of Johor, and, giving up the idea of conquering China, he descended into the sea and married a mermaid, and had three sons who became great Kings of Sumatra." 1 It happens oddly enough that Bruas (a district roughly between Larut, -the Dindings and the Perak river) was the first seat of government of the Sultanate of Perak. Is it possible that the King of Ecbatana brought the laws of Nushirwan to Perak ? Hardly. We must accept Wilkinson's explanation that the above story is mythical. But even if these laws came from Persia they must, in transit, have sadly degenerated. They are not " the law of the Medes and Persians which altereth not." If anyone supposes that we have here any Persian law let 1 " Malay Literature" I. Digitized by Google 1 6 PAPERS ON MALAY SUBJECTS. bim examine the following extract from the Zend Avesta : "0 Maker of the material world, thou Holy One ! How many in number are thy contracts, Ahura Mazda ? " Ahura Mazda answered : "They are six in number, Holy Zarathustra. The first is the word-contract; the second is the hand-contract; the third is the contract to the amount of a sheep; the fourth is the contract to the amount of an ox ; the fifth is the contract to the amount of a man ; the sixth is the contract to the amount of a field, a field in good land, a fruitful one, in good bearing. The word-contract is fulfilled by words of mouth. It is cancelled by the hand-contract ; he shall give as damages the amount of the hand-contract. The hand-contract is cancelled by the sheep-contract; he shall give as damages the amount of the sheep-contract. The sheep-contract is cancelled by the ox-contract; he shall give as damages the amount of the ox-contract. The ox-contract is cancelled by the man-contract ; he shall give as damages the amount of the man-contract. The man- contract is cancelled by the field-contract; he shall give as damages the amount of the field-contract." " Maker of the material world, thou Holy One ! If a man break the word-contract, how many are involved in his sin ? " Ahura Mazda answered : " His sin makes his Nabanazdistas answerable for three hundred years." " O Maker of the material world, thou Holy One ! If a man break the hand-contract, how many are involved in his sin ? " Ahura Mazda answered : "His sin makes his Nabanazdistas answerable for six hundred years." " O Maker of the material world, thou Holy One ! If a man break the sheep-contract, how many are involved in his sin ? " Ahura Mazda answered : " His sin makes his Nabanazdistas answerable for seven hundred years." " Maker of the material world, thou Holy One ! If a man break the ox-contract, how many are involved in his sin ? " Ahura Mazda answered : " His sin makes his Nabanazdistas answerable for eight hundred years." Digitized by Google THE NINETY-NINE LAWS OF PERAK. 1 7 / * It is worth noting that this Persian law is stated in this form of question and answer. So are the Ninety- nine Laws of Perak. None of the other codes are so stated. The explanation of allusions to Persia is without doubt that given by Dr. Hurgronje. It (the Qanoon e Islam) has especial interest for us because the work of this writer relates to a non-Shiite people, the inhabitants of the coast lands of the southern part of British India, whence the creed of Islam would appear to have made its first advances towards the Eastern Archipelago. The Muhammadans of the Deccan, whose manners are portrayed in this work, are Shafiites just like those of the Malay Archipelago, but their national ideas and customs have arisen to a great extent under strong Shiite (i.e., Persian) influences. The intellectual ascendancy of the Persians in the zenith of Arab greatness must also be remembered. Simultaneously with the accession of the Abbasids, Persian influence began to preponderate. The Persian Khalid bin Barmak was entrusted with the administration of the finances. The office of Prime Minister was of Persian origin. The word diwcun applied to all Government offices in Persian. The registers of the diwan were kept by Greeks, Copts and Persians, the Arabs being too illiterate. Legal dissertations load the shelves of every Arab bookcase, but the authors themselves were mostly of extra- Arab origin, and often reflect the Persian, Turkoman, and even the Byzantine, rather than the genuine Arab mind. 1 To sum up then, we have here a strange mixture of influences. Effects of Persian predominance in things of the intellect acting at a vast distance through the medium of Indian Muhammadans of the Deccan. In the dim background is the great legal system of the Brahmins; most prominent is the living and ever- increasing force of the religion of the Prophet. By an 1 " Encyclopaedia Britannica." Digitized by Google 1 8 PAPERS ON MALAY SUBJECTS. analysis into these elements, not forgetting the constant presence of fragments of the ancient customs of the people, these "Ninety-nine Laws of Perak" will be made intelligible. I may fitly end with the following quotation from Dr. Hurgronje : One might even assert that where codification of the customary law has been purposely resorted to (as in the Undang-Undang of certain Malay States) this embodiment in writing is a token that the institutions in question are beginning to fall into decay. (The case is of course somewhat different with regard to certain codes dealing with the decrees of sovereigns in regard to a limited number of subjects, such as the Hukum Kanun of Malacca, and others. These are ex- pressive not of decay, but of a temporary desire for order and reform. The real living adate are therein for the most part silently taken for granted and not committed to writing). Collections of documents of this sort offer to the conscientious enquirer a string of conundrums impossible of solution unless he be thoroughly conversant with the daily life of native society, of the traditions of which such legal maxims form but a small part. We should be wandering altogether off the right track in seeking for the laws and institutions of such countries as Acheh in lawbooks of Arabic origin. Such works have only a limited influence on the life of the people. Their chiefs would be very slow to admit that any of their institutions was in conflict with Islam — and indeed are, as a rule, quite ignorant as to whether such is the case or not, being neither jurists nor theologians. They are all trained up in the doctrine that adat and hukum should take their places side by side in a good Muhammadan country. A very great portion of their lives is governed by adat, and only a small part by hukum. These adats are nowhere to be found set down in black and white. The non-Muhammadan institutions of the Achehnese are really indigenous. J. E. Digitized by Google TRANSLATION. MALAY INTRODUCTION. THIS is the explanation of the books which have been given to the world by Almighty God. They are one hundred and forty and four in number : one hundred were digested into forty and four, these again into four, and those four books were summed up in a single volume. Also there was delivered to us a Law in seven parts to order the affairs of the servants of the Most High God in this world. One part was delivered to the Prophet Adam; a second to the Prophet David; a third to the Prophet Solomon ; a fourth to the Prophet Moses ; a fifth to the Prophet Jesus ; a sixth to the Prophet Abraham ; a seventh to the Prophet Muhammad. The Prophet Muhammad then bequeathed to his four companions the Law in four divisions. Abubakar received the Law of Equity, the Caliph Omar received the Law of Unbending Severity, the Caliph Osman received the Law which is a compromise between Equity and Severity : to the Caliph Ali was delivered the Law of Charity. Thus was legislation provided for all the servants of God of the generation of Adam. Wherever there was a cause to be decided among the servants of the Lord in this world and the guilt or innocence of the parties to be established, such cause had to be tried in accordance with the Law of Equity if no injustice would result. Similarly, the Law of Unbending Severity would be applied if justice would admit it. If the nature of the offence required it, the Law administered would be a compromise between Equity and Severity. Lastly, if it seemed fit, the Law of Charity would be applied. Digitized by Google 20 PAPERS ON MALAY SUBJECTS. Subsequently laws were delivered to a country named Medayan, ruled over by Nushirwan the Just, Lord of Bast and West, the name of whose chief minister was Khoja Bardza Amir Hakim. In all cases where litigation arose this prince would call his chief minister and apply to the case the law as stated by him. Nushirwan was overlord of seven terri- tories : Medayan, Damsek, Zabin Seradin, Sabi, Turan, Udaya, Satin Dulin. 1 These laws were brought to the Far East by Saiyid Hasan at a time when Ahmad Tajudin 2 was Sultan and Tuan Saiyid Abdul Majid was his chief minister. Wher- ever a Saiyid was minister these laws were adopted, so that there came to be a dual system in use, the Law of God and the Law of the Constitutions (Edicts). 1. These are the rules for Judicial Proceedings: Said Nushirwan the Just to his Minister, " What is the law to be followed when complainants come daily and accuse a man of thefts ? " The Minister made answer, " Your Majesty, if it is a first offence the case may be compounded and restitution ordered, a second offence would involve loss of a finger, and a third expulsion from the mukim." 3 2. Said Nushirwan the King, "If one man has wounded another, what is the law applicable?" The Minister made answer, " If the wound is situated above 1 Medayan is Ctesiphon, Damsek is Damascus, Sabi is Sheba and Toran is Turkestan. " Satin Dulin w is probably Kastan Dzurian, the traditional ancient name of Perak. — R. J. W. ' Vide p. 41, Malay Literature, II, of this series. 3 A thief is, according to Achehnese law, punishable with death, even if not caught red-handed. They consider the punishment an act of private vengeance. According to Muhammadan law the thief should be deprived of his right hand ; for a second offence of his left foot. But theft, as denned by that law, is exceedingly difficult to prove. Digitized by Google THE NINETY-NINE LAWS OF PERAK, 21 the navel, diat or blood money of twenty-five dollars must be paid ; if the wound is situated below the navel, five dollars must be paid ; if the wound has caused slight bleeding only, to clear his conscience the offender should offer a piece of white cloth." l 3. Said Nushirwan the King, "What is the law relating to manslaughter ? " The Minister made answer, " Strictly speaking, the slayer must answer with his life ; but in the case of true believers, if the murderer appears before the court, the death penalty will not be inflicted. But a fine of five tahil of gold must be paid, and a funeral feast provided, either a buffalo, a white goat or a white camel, as the price of his liberty." 4. Said Nushirwan the King, "What is the law where an infidel slays a believer? " The Minister made answer, " The infidel shall not be put to death ; because, if he is put to death he can never be converted to Islam. 2 The relatives of the deceased can only require a money payment to be paid by the murderer's kin, whatever amount they think fit. If an infidel is slain by a believer, the latter shall be put to death ; but if he can compen- sate the kindred of the deceased (and the law stipulates for a payment of ten tahil of gold) he shall be let go." 5. "What is the law applicable in cases where the paternity of a woman's child is doubtful ? We may con- sider the case under three headings : firstly, where the woman states that a particular man is the father of her child (the Lord establishes truth, and His decrees cannot be changed, nor does He oppress His people); the second case is where the woman is not pregnant, but declares that some man has outraged her." On this point the 1 Oajahilan, a roll of calico, is paid as a fine under the Mindanao Moro Code. 8 The meaning of this is obscure and the translation conjectural. Digitized by Google 22 PAPERS ON MALAY SUBJECTS. Minister replied, " If she can produce as a proof some piece of the trousers he was wearing, the man suspected will have no defence ; again, if no such proof is produced by her, but if the woman was surprised in the act of coition by her relatives, the man will have no defence. In such cases let the judge, after careful consideration, make an order for the parties to get married. And the reason of this is, that a multiplicity of illegitimate Moslems is a reproach to a country and to its rulers. Again, if a woman is pregnant, the father of the child must marry her. If a woman makes a complaint but cannot produce any of the three kinds of evidence mentioned, her case must be dismissed, as it does not fall within the provisions of the law." l 6. " What is the law relative to seduction ? " The Minister replied ; " The offender should be expelled from the mukim; but if not, he should at least be fined a paha and three tahil of gold. The woman should be pilloried at the door of the mosque and her head should be shaved ; but if she can pay a fine she may be allowed to go free." 7. "What is the law where a woman wishes to be divorced from her husband?" The Minister replied, " The law is, if she establishes a complaint at the court on three occasions, she can have a divorce, but she must redeem herself by returning an amount equivalent to her dowry, and she must pay to the court a paha of gold by way of a court fee. If the husband wants a divorce he must pay within three months two paha of gold (for her maintenance) and pay the whole of the dowry in 1 This passage is obscure, because the text has become confused. But the meaning of it is that there are three forms of proof of illicit intercourse : (1) pregnancy; (2) the testimony of eye-witnesses; (3) the woman's testimony supported by her possession of portions of the man's clothing. — R. J. W, Digitized by Google THE NINETY -NINE LAWS OF PERAK. 23 cash (if not already paid). The universal rule is that the dowry should not exceed a tahil and a paha. In making payment of the dowry, only if it is impossible to pay cash can other things be received instead, and this because of the passionate nature of man." 8. " What is the law when men use loose and violent language to one another, lightly taking the name of God and of a man's father and mother ? " The Minister made answer, " It is an offence against the law and the offender must pay a fine of one paha of gold." 9. Said Nushirwan the Just, " What is the law as to the amount of a woman's dowry ? " The Minister made answer, " The fixed amount for all ordinary persons is a tahil and a paha at the most. The payment in the case of rajas is ten paha of gold : in the case of Hashimites five tahil of gold. Rank has to be considered in such cases. It is not permissible for a woman of the Hashi- mites to wed an ordinary person, but if the ordinary person pay five paha of gold in consideration of his low status, then the marriage can take place, but one tahil and a, paha of that gold must be distributed in alms." 10. "What is the law as to the marriage of female slaves? " The Minister made answer, " If a man commit fornication and then observe the proper customary law and make those preparations for marriage which custom enjoins, marriage may take place, 'the usual obser- vances waived.' But if he commits the offence without the preparations custom enjoins and without any offer- ings, he is said to disobey custom and he may be thrust out with force. If he brings a sufficient amount according to the custom, and wishes to be married, his suit may be refused, but the girl's guardians must pay him the amount of the woman's dowry. If a virgin who has Digitized by Google 24 PAPERS ON MALAY SUBJECTS. relatives wishes to marry a man and the relatives are opposed to it, the marriage cannot take place. If she has no relatives she may do as she pleases, but the law is that the elders of the village shall take the place of relatives as guardians. If the woman is a widow she may follow her inclinations, provided they be right." 11. Said Nushirwan the King, "What are the rules and customs regarding rajas and penghulus of states and parishes, as the case may be?" His Minister replied, "A penghulu's first duty to the peasants will be to see that the dead are buried, secondly he must search for the missing, thirdly he must resolve per- plexities, fourthly he must see that justice is done when offences are committed. The peasants owe a twofold duty to their penghulu — namely, to come when he summons them and to go where he orders them to go. Furthermore, when a case is heard, he (the penghulu) should study the demeanour of the parties. If a man is guilty his face will show it, his postures will be uneasy, his shuffling will show the state of his mind, and his guilt will appear in his speech. The guilty must then be pronounced guilty, the innocent must be declared innocent. This is the law. Distinctions must be main- tained between what is trivial and what is serious in the cases before him. And then his decisions in all cases must be strictly upright, and no consideration must be taken from either party in any proceeding." 12. Said Nushirwan the King, " What are the rules applicable to officers in charge of a mukim?" His Minister replied, " The following are entitled to main- tenance from the faithful. Firstly, the judge, who has jurisdiction over that division; secondly, the imam; thirdly, the penghulu, who is responsible for the mainten- Digitized by Google THE NINETY-NINE LAWS OF PEEAK. 2$ ance of the mosque; fourthly, the reader; fifthly, the muezzin (caller to prayer) ; sixthly, the pawang (medicine man); seventhly, the midwife. The welfare of the community depends on these. If a man, after receiving notice, neglects to attend the Friday prayers, he should be fined half a paha of gold. It is the duty of the imam to regulate the calendar, and to control the teaching of religion by giving true rulings on all points that are obscure. The duty of the reader is under- stood to be to stop all disputings. The caller to prayer, while in the mosque, holds the position of a king. The pawang holds a similar position in the house of the sick patient, in the rice-field, and in the mine. The midwife is a queen in the house where a childbirth is in progress. But all are in subjection to the penghulu." 13. " What is the law in the case of the abandonment of a kampong or dusun ? " His Minister replied, " If the owner of the crops is dead, whoever passes by that place may take and eat the fruits thereof, and he need pay nothing, but only the bond fide wayfarer may so eat. But if the owner of an orchard is still alive and another person is in possession, they shall take the fruits jointly, the owner of the orchard and the man in possession. In the case of an abandoned dusan, if a neighbour has been looking after it he may share the fruits with the owner. But when the owner appears and wishes to take his fruits, he must give notice to the occupant; if he enters without warning his action is illegal, and he may be fined a paha of gold. On the death of an owner of a kampong or dusun, the usufruct goes to his female child- ren, but the property reverts to the raja and is under the charge of the penghulu." Digitized by Google 26 PAPERS ON MALAY SUBJECTS. 14. " What is the law regarding the keeping of tame animals, buffaloes, goats and other domestic animals?" The Minister replied, " If any one wound such an animal he must pay compensation, half the value of the beast must be paid to the owner. If an unclean beast is kept and it wounds a man, the owner must dispose of it, and he must pay a fine of one paha. If a domesticated animal kills a man, the animal is forfeit to the relatives of the deceased and, besides, a fine of a tahil and a paha must be paid. If an unclean animal kills a man, only a fine of one paha of gold has to be paid." 15. " What is the law when a man destroys another man's crops?" The Minister replied, "If they have been abandoned and are useless, and even if their owner has never demanded their price, half their value must be paid, besides a fine of one paha. If the crops were of any value, the full price must be paid, and a fine of one paha." 16. "What is the law dealing with fugitive slaves ?" * The Minister replied, " If they succeed in escaping beyond the first rivulet, they may be redeemed from their captor for half a paha. If they succeed in reaching the second rivulet, beyond the limits of the mukim, they can be redeemed for two paha and a half. If the slave enters a house, unless the owner of the house informs the slave's master, who is in pursuit, the owner of the house shall be mulcted a paha for the offence. If the fugitive is a slave by birth, he may be seized by force, if he was born free and anyone tender his value, the offer must be accepted." 1 The rules of the " Perak Code of Slavery Law " are very much more elaborate. The penalty for harbouring is, if a male, to have his ears filipped with rotan s8ga. If a female, her head is shaved and she is beaten with rotan Digitized by Google THE NINETY -NINE LAWS OF PERAK. 2 J 17. "What is the law of debt?" The Minister replied, "Consider carefully whether the contract was made under pressure of want, if so it is void. If a man contemplates incurring pecuniary liability, the judge has to consider if due diligence was used, what were his means of support, and what was his object in contract- ing this liability. Contracts are void where the con- sideration is immoral." l 18. "What is the law applicable to the case of a man who comes and complains that he is in financial difficulties or that his accounts are in a state of con- fusion?" 2 The Minister replied, "Firstly, pecuniary assistance should be given him, or, failing that, good advice. If help cannot be given in his case, or with his accounts, give him a recommendation, or if not that, then give him actual physical assistance. To a man in such straits, help of at least one of these kinds must be given." 19. "What are the rules relating to lodgers?" The Minister replied, " Your Majesty, the lodger must inform the owner of the house every time he enters or leaves the house; if this is done, the owner of the house can be charged in the event of his murder or of the theft of 1 "A contract to do an act illegal because prohibited by law is void. So a sale of pork or wine is void [according to Muhammadan law." — Holland, Jnrisp. p. 261. The law here is exceedingly lenient. Muhammadan law is very favourable to the debtor. If, says the Koran, there be any debtor under a difficulty of paying his debt, let his creditor wait till it be easy for him to do it. But if ye remit as alms it would be better for you if ye knew it. So we may take it this section is Arabic law. As for the Perak custom, see Cap. 69 of the Perak slavery law — viz : ic Cap. 69. Debt is of two kinds, either repayable on a particular date agreed upon or repayable on demand. In the case of a debt of the former kind, if the period within which payment has to be made is exceeded, even by a single day, the debtor may be sent to work in the tin mines of the creditor, and if he runs away he forfeits his status of a freeman and becomes the slave of the tin miner. If the debt is payable on demand and the debtor absconds, he loses his status and becomes a slave." 2 This section gives the mild law of Arabia. Digitized by Google -a8 PAPERS ON MALAY SUBJECTS. his goods. If, owing to the lodger going in and out of the house, the house is burgled, the lodger is responsible, and must bear half the owner's loss. If the lodger was negligent, he must bear all the loss and be fined one tahil and one paha" 20. " Take the case of two men travelling together, they arrive at some place where they wish to spend the night, and then one of them loses something, what would be the law applicable ? " The Minister replied, " If the loss occurred during the night, the loss should fall equally -on both ; if the loss occurred in the daytime, the owner must bear the whole loss himself." 21. "In the case of litigation between neighbours, what are the rules applicable ? " The Minister replied, "If complaints are brought, such as family disputes, or mere verbal wrangling, no fines should be imposed; the parties should be warned, if they persist, they may be dealt with strictly according to the custom." 22. "What are the rules to be followed when com- plaints are brought before the chiefs ? " The Minister made answer, " Be just in judgment, for on this depends much good or evil, and what is thought good may be found to be the reverse. First, the judge must investi- gate, then make diligent search, then the accused should be confronted with his former misdeeds, then the effects of anger, cajolery and deception should be tried. Then his better feelings should be appealed to. And lastly he should be severely cross-examined. Lastly, we must remember the omnipresence of the Almighty and our office, and then only look our enemy in the face. For all men hold a judge as their enemy." 23. Said Nushirwan, " What is the law dealing with manslaughter, where both parties are Muhammadans ? " Digitized by Google THE NINETY-NINE LAWS OF PERAK. 29 His Minister replied, " Your Majesty, if a Muhammadan slays his co-religionist, he shall not be put to death ; if he is, both slayer and victim would be lost, dying the death of unbelievers. The judgment of the court should be a fine to be paid as compensation, four tahil and two paha> or one - tahil and one paha, but at least two derharrtj and he must dispense in charity one paha, so that he may pay the fine and be absolved." 24. Said Nushirwan, " What are the rules regulating the appearance of people before a raja or chief ? " His Minister replied, "When they sit in the presence, people must bow the head, they should not allow their eyes to wander, they must not look in his face, the voice must not be raised, each man must regulate his behaviour as required by custom." 25. " What are the rules governing the conduct of a judge sitting for the trial of cases?" The Minister replied, " A judge must ever be mindful of the Almighty and His Prophet; secondly and thirdly, consider the respective positions of himself and his litigants ; fourthly, he must be on guard against charms and persuasions. After this he should address himself to the enquiry considering the whole of the evidence. When this has been done [it will be found that] guilt will be apparent in the face of a guilty man, in his speech, his postures and his gait." The King then inquired if this was the whole law, to which his Minister answered, " The judge must conduct the enquiry according to his intelligence." 26. " What is the law where a person receive goods for delivery and intentionally fails to deliver them?" The Minister replied, " The goods must be replaced and a fine of twenty dinar paid ; but if the failure to effect delivery was due to force ttiajeure and the carrier, replaces Digitized by Google 30 PAPERS ON MALAY SUBJECTS. half the goods if the goods were eatables, or the whole amount if they were not eatables, he will incur no criminal liability." 27. "What is the law regarding medical fees for attendance on sick persons?" The Minister replied, "If through the agency of any treatment a lunatic re- covers his sanity, the fee shall be one paha ; in case of rodent ulcer the fee will be half a paha; for other diseases one paha,, as the cost of the materia medica hunted after by the pawaug." 28. " What is the law regulating the fee in cases of demoniacal possession ? " The Minister replied, " If the person possessed recovers so far as to be able to undergo purification, the fee will be a paha and five derham. If the devil is utterly cast out and the evil influence removed, one paha and fourteen derham — that is, one gold dinar is the fee." 29. "What is the law regarding the payment of the wizard l who looks after the spirits of the village ? " The Minister made answer, "The fee for watching over the village is a paha, besides which the wizard has a right to any materials left over from the ceremonies. If he has charge over the spirits of a mine, the fee is a paha with the materials as before. He is also entitled to receive a suit of clothes, jacket and black head cloth. The wizard's duty where he finds matters have gone wrong is to set them right if he can find the proper spell. When he succeeds his fee is, in the case of a padi field or other matter, a piece of white cloth and the materials. Once in three months the wizard will vivify the padi, and each person will give him two derham as his fee." 1 For an account of a mining wizard see Skeat's "Malay Magic," p. 250 and following. . . ; Digitized by Google THE NINETY-NINE LAWS OF PERAK. 31 30. "What is the law applicable to the case of a woman seeking a divorce from her husband, she being a virgin, her husband not having deflowered her on account of her unwillingness ? " The Minister replied, " She can have a divorce, but she forfeits her dowry and pays for the divorce a tahil and a,paha of gold." 31. " What is the law relating to the division of property after divorce ? " The Minister replied, " If the divorce is at the instance of the husband and there is no blame attached to the woman, he must provide her with maintenance for three months, and the personal property will be divided. Weapons and instruments of iron go to the husband, vessels of brass and house- hold utensils go to the wife. To the wife also belong the house or plantation, to the husband debts and dues. If a divorce is sought owing to the misbehaviour of the woman — that is, on account of either adultery or neglect of service at bed and board, or refusal to do works of charity and to pray to the Almighty — she forfeits her settlements only, and the law is that the husband must pay a paha. If a woman seeks a divorce, if she thrice makes out a case of misconduct on the husband's part, she can certainly obtain a divorce; but she must redeem herself by returning the settlements, and the movable property goes to the husband. The husband suffers no disadvantage. If the husband wishes to remarry the same woman l he may do so if the woman is agreeable, but lie must pay her settlements as before." 32. "What are the rules when one person sues another? What does justice require?" The Minister made answer, "In the laws which have come down to us from your sire Kubad, the courts could take 1 Without the medium of a muhalUl. Digitized by Google 32 PAPERS ON MALAY SUBJECTS. no cognizance of cases between children and their parents; otherwise it would be regarded as a piece of tyranny on the part of the raja or chief. The case must be amicably settled. Of cases between brothers and sisters, the judge may take cognizance as an arbitrator only. Parents and children, brothers and sisters, share the family fortune and the family repute ; if one suffers, all suffer, so they should not sue one another in court. If the raja take action against such it would be a violation of the law of Muhammad." 33. " What is the law relating to the division of the estate of a deceased person?" The Minister made answer, " House and garden, crockery, kitchen-utensils and bedding, are taken by the female children. Imple- ments of iron or weapons, padi lands or mines, go to the sons. The debts and assets of the estate are divided as follows : a son takes double a daughter's share. The remaining property is equally divided, for all children are on an equality, all have the same origin. And it must be mentioned that if there are unmarried children their shares are increased by ten per cent." 34. Said Nushirwan, "What is the law regarding the case of a person of property dying childless ? " His Minister made answer, " At the time of the burial the effects are given to the authorities of the mukim where he or she died. Any part of the estate that may be a marriage settlement should be given for charitable purposes to the kadzi. 1 If there still remains anything over, a feast of one hundred days should be given for the benefit of the dead man, and if there is any over, then only do his relations get it or (if no raja) the people of the mukim, in such proportions as may seem right." * This passes is obscure. Digitized by Google THE NINETY-NINE LAWS OF PERAK % 33 r 35. "What is the law if a young person dies un« married leaving a considerable amount of property, and if the father and mother, and brothers and sisters of the deceased are still alive ? " The Minister made answer, "The father and mother shall not inherit, 1 the property goes to the brothers and sisters. The brothers and sisters must pay all liabilities. The parents are allowed to take the clothing of the deceased. If the deceased left no parents or kinsfolk, the property will revert to the kadzi or to the Ruler of the State." 36. "What is the law of slavery?" The Minister made answer, " If the slave is an infidel, of a people having no scripture, 2 and not a debt-slave, he may be sold for a fair price. 8 If he is a Muhammadan, the child of debt-slave parents, his price will be a tahil and a paha" 37. "What is the law applicable when a woman becomes pregnant and the child's paternity is uncertain ? " The Minister made answer, " If it occurs in a Muham- madan country, her seducer must marry her, for nothing 1 I do not think that this means that the parents actually get nothing. Under Moslem law they get a definite percentage, but the estate proper goes to the " residuaries," not to the so-called "sharers" whose shares are limited. Brothers and sisters are " residuaries," parents are " sharers." — R. J. W. 2 Kitdbi : all who believe in a heavenly or revealed religion and have a Kitdb or Scripture such as the Pentateuch or the Psalms of David are Kitabis (ScripturaHsts) and marriage with their women or eating meat slaughtered by them is lawful. 9 This institution of debt bondage is wholly opposed to Muhammadan law, which is most lenient to debtors. " The institution of slavery as it exists among the Malays is a national custom which they have in common with other Indo-Chinese races, and it is a mistake to suppose that it is the offspring of Muhammadan law and religion. Muhammadan law has, however, largely influenced Malay custom respecting slavery, and Arabic terminology is noticeable in many of the details incidental to the system. So far from being identical with the slavery lawful among Musleras in Egypt, Arabia, etc., the Malay institution is in some respects completely at variance with it." — Maxw., J. S. A. S. " A debt bondsman, though often called hamba, is more correctly termed kawan (companion). He is a free man (merdheka) as opposed to a slave (abdi), though from his being obliged to serve his creditor in all kinds of menial employment the two condition* are not always readily distinguishable." — Maxw., ibid. Digitized by Google 34 ." PAPERS ON MALAY SUBJECTS. tends more to the destruction of a country than the paultiplication of bastards. If the woman cannot manage to find the father of her child, the raja administering the country should help her to do so. If the raja of the country is an infidel, the woman is not obliged to marry." 38. "What is the law applicable to the case of a woman becoming pregnant before marriage, and then after marriage being divorced ?" The Minister made answer, "The woman can be divorced, but after the birth of her child the father must support it for forty-four days. If the child dies, the father need support the mother for seven days only. He mu3t also pay the fees of the midwife and the other expenses." 39. " What is the law as to the maintenance of a divorced woman?" The Minister replied, "For her maintenance about a paha will suffice, but if there are young children, or if the parties live in a large village, the amount will be two paha and a half; if the place where the woman lives is in the jungle, or if she can earn her own livelihood, like the people of the country, she is not entitled to maintenance, she must support herself." 40. "Are there any rules applying to particular persons dwelling in the village?" The Minister made answer, " Your Majesty, if there is a hag in the village, not belonging to the tribe, she must not be received or allowed to remain there, in case she may be keeping an evil spirit to cause disorders and quarrels in the village. So too any wrong-doer is certain to influence the people, (for how can the elders of the village watch him) and he should be similarly ejected." 41. "What is the law applicable to the case of a woman wishing for a divorce, there being no fault on Digitized by Google THE NINETY-NINE LAWS OF PERAK. 35 the part of her husband ? " The Minister made answer, " She shall not have a divorce ; let her be thrown into the jungle for seven days by herself. If she returns she is carried round the mosque, so that it may be known to others what she has done, and that she may serve as a warning to others." 42. "What is the law applicable to the case of a man who keeps beasts which destroy crops?" The Minister made answer, " The crops must be replaced or their value paid. If any man is wounded by these beasts they may be killed, and their owner fined apaha. But this only if the crops are properly cared for. If the creatures are only small ones, no fine can be inflicted ; if they are destructive they can be thrown into the water." 43. " What is the law applicable to the case of a man clearing and irrigating a piece of land?" The Minister made answer, " A person arriving later will not be allowed to take land higher up, but he may take land lower down, provided that he does not interfere with the work of the first arrival. The newcomer must com- pensate the first settler for half his loss." * 44. "What is the law applicable to the case of a man holding high padi land whose crops are eaten by animals kept by another?" The Minister made answer, "If the clearing is strongly fenced, so that shaking does not break down or move the fence, buffaloes and other animals that get in may be killed. If the animals first make a hole in the fence, the owner of the beasts can recover them if he is willing to pay the full 1 The Malay law of real property is not complicated. It is not surprising, therefore, that we find only two sections, 13 and 43, dealing with real property. Anyone interested in the subject should consult W. B. Maxwell's article in the J. B. A. S. and the modern land law of the Federated Malay States, which crystallises Malay practice and carries it to its logical end — i.e., that if a holder abandons land, it reverts to the Ruler of the State. Digitized by Google 36 PAPERS ON MALAY SUBJECTS; damage done, otherwise lie stall lose them. If they are unclean beasts, such as lions, the owner shall be liable [for all damage]. If there is no fence, he must pay half, as required by custom. If the beasts enter from the side of a person who has no fencing, and destroy crops within the land which has been strongly fenced, the man who has no fence pays one-third of the damage, the owner of the beasts two-thirds." 45. " What is the law applicable to a person who keeps lions and elephants and other large animals?" 1 The Minister made answer, " If he lets them be at large it must be at a distance of three miles from the village. If they are still in sight, and they damage crops as they pass by, the owner must pay damages and 25 d&rham. If co ws or buffaloes graze in the fields in the daytime, no damages need be paid; if at night, damages must be paid." 46. " What would be the law where after a sale of buffaloes or goats they were lost ? " The Minister made answer, " If a man buys a buffalo and it is lost the same day, and cannot be found in that place, if the buffalo has not been removed from the parish, half the cost must be returned. If it dies the same day on which it was bought, in the village where the sale took place, half the price must be returned. If the buffalo is stolen the loss falls on the purchaser only. If the purchaser belongs to the village in which the sale took place and if he takes the buffalo outside the limits of the village where the sale took place, whether it dies or is lost he has no cause of action against the seller; but if the loss occurs within the limits of the village, half the price must be returned." 1 Negri Sembilan custom says " Siang Upas, malam tSrtambat, " which enforces fencing on the landowner by day and penning on the cattle owner by night. Digitized by Google THE NINETY-NINE LAWS OF PERAK. 37 47. "What is the law dealing with the rearing of goats ? " " If they eat plants which are fenced in, the owner must pay for them. If there was no fence the owner need not pay anything, because it is the nature of such animals to browse within the kampong." 48. "What are the rules applying to the case of a poultry farmer whose birds are killed by some person ? " The Minister made answer, " If any person kills the birds when they are under their owner's house, he should be condemned to pay their price and a fine of ten dinar. If the birds are killed outside the house, the price only need be paid. If an animal which was created fit for food is improperly slaughtered, the person who does this will be guilty." 49. Said Nushirwan the King, " What are the rules applicable to persons visiting foreign countries ? " The Minister made answer, " When passing through a village a man should not allow his nether garments to be tucked up. If he enter a house, and there be no male person present, he may only sit at the threshold with one foot on the steps. If he finds the inhabitants of the country at war with some foreign power, he should be on the side of the inhabitants. If the country is in a state of civil war, he must not interfere on either side. If a man resides in a foreign country, he must observe the following rules: firstly, he must render honour to the rulers of the State ; secondly, he must pay due respect to the chiefs; thirdly, to the elders and officials of the mosque. By these means he will escape unfair treat- ment. The customs of a country should be observed, but one should riot go beyond them." 50. " What is the law applicable in the case of illicit intercourse, where the parties are brought before the Digitized by Google 38 PAPERS ON MALAY SUBJECTS. penghulu of a mukimP" The Minister made answer*, " If both parties admit their guilt, let them be married, and let them pay a fine of one paha. If there is no penghulu, and their guilt is clear, the parties may settle things themselves." * 51. "What are the rules to be observed when a stranger visits the village, wishing to pass the night there ?" The Minister made answer, "The villagers will be blameworthy unless they give him lodging and food sufficient for one night's sojourn." 52. Said Nushirwan the Jusfc, "Well, sir, I compli- ment you on your learning and perspicacity, and now I must ask for your opinion as to the law on another point ; for we are the sole King of this world from east to west, from south to north. What, sir, is the law applicable in the case of an affray, ending in fatal consequences ? " The Minister made answer, " Well, your Majesty " then, after hesitating, he rose and, shaking his head, replied, "there is yet another pro- vision of the law. It has been decreed that the children of Adam should have five chupak of blood apiece. If one man slay another, shedding his blood, blood money must be paid, one tahil and one paha, and a fine must be paid, five tahil. And this because blood is spilt from the body of a son of Adam : for the blood is the life and is ever the property of Almighty Grod." Furthermore the Minister stated, " The use of gold and silver coins, and the reason why they were sent into this world is, firstly, to free all sons of Adam of tender age, who would otherwise have been put to death by their rajas for crime. When the fine is paid, the man shall go 1 A Penghulu of Rembau in the Negri Sembilan once remarked " Pakatjalan dalam gMap, adat jalan dalam t&rang" Digitized by Google THE NINETY -NINE LAWS OF PERAK. 39 i^ee, 1 and cannot be put to death. Such is the use for which gold is sent to us ; gold, the filth of this world. 2 Its other uses are to do good works, and for food and clothing. God gives us gold in plenty to serve us in the hour of calamity. And," continued the Minister, " whatever fault men may have committed, Your Majesty, if they are able to pay the proper fine to the raja, their pins shall be pardoned in this world with the help of this gold. If this were not so, of what use would be gold?" 53. "What is the law regulating the division of property after divorce?" The Minister replied, "If the property was brought from their parents' homes, being acquired before marriage, each party will keep possession of it. Such property is known as separate estate and is not thrown into the property to be divided on divorce. But if the parties have lived three years together and have children, it shall be thrown in." " If a man marries a woman, has children, acquires property and is subsequently divorced, and if he then marries a new wife, has children and acquires property as before, and # after that dies, what will be the law governing the case ? " The Minister replied, " Property acquired during the former coverture cannot be inherited -by children of a later wife. If he acquires property by a second wife, the children of a former marriage cannot inherit it ; they may only take a small article each as a memorial." 54. "What is the law where complaints are received from a woman who wishes for a divorce?" The 1 A man slayer (yang bawa darah mati) or other criminal who is unable to pay the price of blood or other fine (diyat) and who surrenders (hvlwr) himself and family to the raja becomes a slave (dbdi). — Maxw., J. S. A. S. 2 Or : " Gold that washes away the filthy sins of the world." Digitized by Google 40 PAPERS ON MALAY SUBJECTS. Minister made answer, " She can get a divorce if &he has failed to receive from her husband either satisfaction for her feelings or nourishment for her body." 55. "What are the rules governing the conduct of -wealthy persons?" The Minister made answer, "If the mukim contains many wealthy persons, it may be considered extremely fortunate. These wealthy persons must behave with generosity towards the poorer classes. They must pay proper respect to the rajas and peng- hulus, give small sums to the devout, and make a feast at least once a year without fail, and they should earn, repute in this world by being charitable to the needy." 56. Said Nushirwan the Just, " Now, sir, how is it that if an infidel slays a believer, the infidel cannot be put to death?" The Minister made answer, "If ven- geance is taken, it does not profit the murdered believer in this world or the next, for to the child of Islam existence is twofold; first, there is this world, and eternity. But the unbeliever has only one existence. And besides, if vengeance is taken in the event of a believer being slain by an infidel, the infidel and his slayers are all accounted as infidels." 57. Said Nushirwan the Just, " Kegarding the rules as to a second marriage, how is it, sir, that a woman marrying for the second time should receive as settle- ments the same amount that she received on the first occasion ? " * The Minister replied, " Your Majesty, if a woman of the Hashimites or any Muhammadan woman marries a raja or chief of a country, though she be a widow, she receives the same dowry as when she first married, and no less. If a Hashimite or raja marries 1 This question is not properly answered. The answer seems to be that the rank of the woman has to be paid f or, and that she does not lose her rank by becoming a widow. Digitized by Google TH$ NINETY-NINE LAWS OF PERAK, 41 a,n inferior, the woman can get a divorce for five tahil of gold. The dowry of a Hashimite woman is five tahil of gold. Five tahil of gold are equivalent to five hundred ingots (bidur)" 58. Said Nushirwan the Just, "What are the rules applying to the officers of the mosque in a mukim?" The Minister made answer, " Your Majesty, a man who is a priest, a reader in the law, or a caller to prayer must firstly be a man of good appearance, with no blemish of body ; then he must have a good voice ; then he must understand the calendar ; next he must be of an industrious disposition ; after that he must be polite in his speech with the people ; lastly, he must be up betimes of a Friday morning, entering the mosque before the other people. And also he must repair the dilapidations of the mosque." 59. "What are the rules applicable to pawangs?" The Minister made answer, "The pawang must be a man of great prudence, a clever speaker, a careful and industrious man, refusing to speak a lie to any man, not lusting after women. If a man is sick, he must attend immediately. His reward is that he escapes taxation and forced labour." 60. "What are the regulations applying to mid- wives?" * The Minister made answer, " Mid wives should be strong-minded, upright in their dealings, not given to scolding. When a woman is in labour they must .attend immediately. The fee payable by all sons of Adam is two and a half derham and five ingots, a piece of cloth and a bottle of Perak oil. She must nurse her patient for seven days." 1 The functions of a bidan are described by Skeat, p, 332. See Gerrard's . Vocab. Med. T. See also section 12. Digitized by Google 42 PAPERS ON MALAY SUBJECTS. • 61. "What are the rules applying to the case of parents who have a young unmarried daughter ? " The Minister made answer, "Your Majesty, having. a virgin daughter is like having gold ; there are its uses and its drawbacks; it is like having fire in the kampong. When she comes of age, at seventeen, her parents must seek a husband for her. If an inferior person wishes to wed her> she must be informed, and similarly if her proposed husband is in a superior position. If they are both in the same station of life, after a short interval the marriage can take p]ace. ,, 62. " What are the rules applying to the case of parents who have a young unmarried son?" The Minister made answer, " The parents need not provide jacket or cloth, nor need they give him capital if he wishes to start trading. If they wish him to marry, they should seek for a girl of moderate station. They should never praise their son in conversation. The responsibility of the parents consists, firstly, in seiiding their son to school to read the Koran ; secondly, teaching him some knowledge of the world; thirdly, getting him a wife. After this is done their responsi- bility ceases." 63. "What course should a man follow who is in search of knowledge?" "He must learn [from all]-r-from men who are liked and from men who are disliked; from men who are religious and from men who are ungodly. In each case he will find a lesson to learn." 64. "What are the rules applicable to persons who have attained to wisdom ? " " Firstly, let their wisdom be apparent to all men from afar ; secondly, a teacher should not seek his reward in money ; thirdly, he should Digitized by Google THE NINETY-NINE LAWS OF PERAK % 43 not do as the proverb has it *; fourthly, he should reverence learning in his heart ; fifthly, let him not bo&st to others of his pupil's cleverness ; sixthly, he should not receive as scholars persons of low origin ; seventhly, he must not give instruction to the irreligious ; finally, his wisdom must be fruitful of good works." 65. " What are the rules applicable to persons newly wedded ? " The Minister made answer, " The husband shall give due respect to his wife's relations. For seven days after the marriage he should not be too much in the house, but should visit different places. When he does come into the house he should refrain from entering the bed. For forty days he must keep his passions within bounds, so that the faith of the newly married couple in God shall not be impaired." 66. "What is the law as to a man's duties to his wife?" The Minister made answer, "Your Majesty, his first duty is that he should provide medicine for her in sickness; secondly, he must provide treatment for her in pregnancy ; thirdly, he must provide meat, drink and apparel according to his means ; fourthly, she will require a house wherein to dwell ; fifthly, his land must be planted to provide her with sustenance. If the lady is displeased for lack of any of these arrangements, her husband cannot quarrel with her. If her wants go beyond these, let her husband pay no attention what- ever, and he should pay no heed to her various opinions, entrusting her with no secrets; for a woman is a thorn in one's side (lit. a foe in one's blanket). He should entertain no feelings of jealousy, though if there be no jealousy [exhibited] things will not work properly. It 1 This may refer to the proverb that a teacher's bad example is reproduced to an exaggerated extent in his pupils. Digitized by Google 44 PAPERS ON MALAY SUBJECTS. is wrong for another man to use the husband's dish pr the husband's bed. Do not trust a man in the company of a woman. A strange man is to a woman as the sun is to the moon ; they should be always apart. If a woman misconducts herself with another man, the penal- ties are these : firstly, divorce ; secondly, death ; thirdly, expulsion from the country ; and fourthly, the woman may be forced to marry her paramour. These four methods of procedure settle the matter in this world." 67. Said Nushirwan the Just, "What is the law where a man seduces the wife of another ? " The Minister Bardza Amir Hakim replied, "Your Majesty, if the husband comes upon the guilty pair within the four posts of the house, he may stab them without fear of prosecution, and the woman's head shall be shaved. If the case should come before the raja or chief of the district, the adulterer shall not be put to death. The law is that the woman shall leave her husband's house stripped of everything, and for her debts her seducer shall be liable. Her dowry shall be returned to her husband, and for the wrong she has done him her seducer must pay a tahil and a paha of gold ; to the village also he must pay a fine of a tahil and a paha of gold. If these fines can be paid, the parties are free and can marry. But if they fail to pay the customary fines the .marriage shall not take place and the parties are expelled from the village and fined a tahil and a paha, and if this is not paid, any articles on their persons may be taken and they will be treated as beasts." 68. "What is the law applicable to the case where a man seduces a girl betrothed to another?" The Minister made answer, " He shall not be put to death, but only beaten. If the offence is brought before a Digitized by Google THE NINETY-NINE LAWS OF PERAK, 4$ pengtiulu they can be married, but a double dowry must be paid, half of it to go to her former lover, and a fine of a tahil and a paha must be paid. If the girl has received gifts from her suitor they must be returned doubled. If the gifts were eatables or wearing apparel, which she has worn, these things cannot be returned. If the seducer cannot pay according to the custom of the country and the demands of the relations, marriage cannot take place ; the offender may be expelled from the country, beaten and plundered, because he has been guilty of outrage, as it is called." 69. " What is the law applicable to the case where a man keeps a dog which bites somebody, drawing blood ? " The Minister made answer, " The dog may be killed and the owner must pay for all medicine required, a paha at the very least ; and besides thia he must pay a fine of twenty dirham" 70. Said Nushirwan, "What is the law applying when a man keeps an elephant and it kills someone ? " The Minister made answer, "Your Majesty, if the elephant kills somebody in the jungle, three miles from the kampong, the owner incurs a fine of a tahil and a paha, and he must pay the funeral expenses. If an elephant kills a man within the limits of the kampong, it is a serious matter for the man who keeps the elephant* The elephant must be killed and the owner fined a tahil and a paha, and he must pay another tahil for the funeral expenses. And, moreover," said the Minister, " if anyone keeps the unclean animal in question, the order made is considered lenient. And the same orders are made in the case of other unclean [not eaten as food] animals." 71. "What would be the law in a case where a man kept buffaloes, one of which killed somebody? " The Digitized by Google 46 PAPERS ON MALAY SUBJECTS. Minister made answer, "If the man was killed in the jungle, the owner of the buffalo would have to pay the funeral expenses, and the buffalo would furnish meat for the funeral feast. If the death occurs in a kampong, the owner is responsible, and may be fined a tahil and a paha, and the buffalo will pass to the estate of the deceased and be used for his funeral expenses. If a buffalo wounds a man in a kampong, the buffalo is forfeited to the wounded man, and the owner is fined a paha. If the man is wounded in the jungle, the buffalo is forfeited only." 72. "On what principles should an intelligent man order his conduct in this life?" The Minister made answer, "Those who dwell in this world below should firstly see that their bodies are free from disease; secondly, that they have money enough ; thirdly, that their opinions are respected by men ; and fourthly, they should seek to hold office. When a man is endued with intelli- gence above his fellows, then only will the milk of kindness flow from his heart. The intelligence of less- gifted folk never emerges from its dungeon in the flesh." 73 " What are the rules applying to persons engaged in litigation?" The Minister made answer, "Firstly, they should realise that they are God's creatures; secondly, they must be acquainted with the customs of the country; thirdly, they should know the difference between truth and error. If a man know the established law of his country, he may be pardoned for a first offence." 74. Said Nushirwan, " What are the rules regulating warfare ? " The Minister made answer, " Firstly, accu- mulate money ; secondly, accumulate men ; thirdly, you •must have weapons; fourthly, brains; fifthly, military Digitized by Google THE NINETY -NINE LAWS OF PERAK. 47 science; sixthly, allies; seventhly, courage before th$ enemy ; eighthly, strategy ; ninthly, calculation ; and lastly, a man among men must be discovered (for the command), and if the rank and file clamour, let them clamour! But your commander will be hard to find. In warfare his orders must be obeyed, and not the clamouring of the soldiery." 75. "What will be the law as to the devolution of the second husband's inheritance in the following case : A woman marries, has children, and i? then divorced; she marries again, and has children by her second husband ; then her second husband dies ? " The Minister made answer, " The children by the former husband get a quarter share." * 76. Said Nushirwan, "What is the law regarding the disposition of the effects of a foreigner dying away from his own country and leaving large property?" The Minister made answer, "The custom is that the property goes to the raja or penghulu of the mukim, who are to be regarded as occupying the position of parents to him. If the foreigner dies penniless, the raja and penghulu of the place must bear the cost of burial and the funeral expenses. If there is any property — much or little — it goes to the penghulu in charge of the mukim." 77. Said the King, " My good Minister, what is the law to be followed in the case of a raja dying, when all his surviving descendants claim to succeed ? " The Minister made answer, " Firstly, the eldest child will 1 This probably means that (suppose) A (the woman) marries B, has a child C, is divorced, and then marries D, by whom she has no children, a quarter of D's estate goes to his widow A (as a sharer) and at her death to her only child C. The stepson C can only inherit through his mother A ; he gets nothing if A predeceases D. — R. J. W. Digitized by Google 48 PAPERS ON MALAY SUBJECTS. Succeed; in default of him, a younger may take Big place, provided he is of fully royal blood." 78. Said Nushirwan, "What are the rules to be followed in the selection of the chiefs of a country ? " The Minister made answer, " Firstly, they should be men bf birth; secondly and thirdly, they must be men of property; fourthly, of sufficient age. If these four qualifications are present, the mukim will have peace and the peasants will prosper." 79. Said Nushirwan, " What are the rules applioable to the appointment of the kathis of a country or mukim ? " The Minister made answer, " Firstly, they must be ac- quainted with the Law of God and His Prophet ; secondly, they must know the laws and customs of the coimtry ; thirdly, they should have a good voice and read well ; and fourthly, their bodies must be sound and without blemish, and they should be of good appearance." 80. "What are the regulations applying to the pawang of a mukim?" The Minister made answer, " Firstly, he must not be a speaker of lies ; secondly, he must not be arrogant; thirdly, he must not be hot tempered; fourthly, not too anxious to grasp his fees. If a man has these failings he should not become a pawang. 81. "What is the law applicable to the case of a woman who is divorced, and whose husband wants her back within three months and ten days, but she is un- willing to return?" The Minister made answer, "The law is that if the woman is unwilling she may be forced to return to her husband within three months and ten days of the divorce ; but the husband must give her her settlements in cash; if he is forcibly rejected, the woman must pay him the amount of the marriage settlement, Digitized by Google THE NINETY-NINE LAWS OF PERAK. 49 because he is prosecuting his suit as custom enjoins; if his suit be declined, as custom ordains, by formal return of the prof erred settlement, that settles the matter." 82. "What is the law regarding the custody of children after divorce?" The Minister made answer, " If the child is under nine years of age it will live with the mother, if it is over nine it can please itself whether it lives with its father or its mother, but in the case of a girl it is right that she should live with the mother." 83. Said Nushirwan, " What is the law when foster- children marry ? " The Minister answered, " According to the law 1 of this world they may do so, but their respective mothers must meet and forgive them, that they may obtain pardon. And the reason of this is that in this world father and mother and kings must be considered sovereigns paramount, taking the place on earth of Almighty God." 84. " What is the law applicable to the case of* a man marrying a woman who has been suckled by his own wife?" Bardza Amir answered, "The marriage can take place, but alms must be distributed in the mosque-— gold and silver. For in this world, provided the parties are able to pay, any offence against custom can be compounded. Even sentence of death may be commuted if compensation be paid according to the customs of the country and its rulers. For the use of money and the reason of its having been given to us by God is this, 1 This seems a statement of Indonesian law. Muhammadan law prohibits marriage in such cases. * The ceremonial pardoning is a formal recognition of the usual illegality of the marriage. — R. J. W. " It is considered that if a woman take a child to nurse she contracts a sort of maternity towards it, and that if a boy and girl are nursed by the same woman they become brother and sister, and in. a general way it is said that -whatever is prohibited in consanguinity is prohibited in fosterage j but it is doubtful whether the law goes so far," — Mabkby. Digitized by Google 50 PAPERS ON MALAY SUBJECTS. that the possessor of it should live in comfort and get clear of the consequences of his misdoings. If it were otherwise, what would have been the use of Almighty God having sent it into the world for his servants ? " 85. This is the law concerning prohibited marriages : Persons who may not marry are — Mother and son -\ r Jt , » Father and daughter I t°° ^.f ound of con " Brother and sister ) b j'J Widower or widow with a stepchild [by . reason of affinity.] Thq true believer with an infidel. Foster brother and sister. A man who cannot pronounce the " bismillah." This is the table of prohibited marriages. All but those mentioned may intermarry according to the law of nations and these constitutions. 86. " What is the law where a man seduces the wife of another?" The Minister made answer, "If the husband finds (1) the seducer in his house, he may kill -him outright, without fear of consequences. If the husband does not kill the seducer while in his house, when the latter comes before the raja or penghuju (2) the husband is no longer at liberty to kill him (3) but he has to pay a fine according to the custom of the country, besides twice the womau's marriage settlements .and a fine of one hundred ingots." 87. " What is the law when a man hires a passage in a boat and it is damaged ? " Said the Minister, " Each bears his own loss (the owner the loss of the boat, the passenger the loss of his goods) ; no recompense can be got from either party." 88. " What is the law applicable to a carrier of Digitized by Google THE NINETY-NINE LAWS OF PERAK. 51 goods by water ? " The Minister made answer, " If the boat is damaged unintentionally, the carrier need not make good the loss ; but if the goods are lost otherwise, the carrier — i.e., the owner of the boat — must replace them." 89. Said Nushirwan, " What is the law where a man hires a house or shop which is subsequently burnt?" The Minister made answer, "The landlord loses the rent from the commencement of the tenancy, and the tenant must pay the value of the house." 90. Said Nushirwan, " What is the law when a man hires a camel or other animal and it dies while in the possession of the hirer?" The Minister made answer, " If the beast dies at the end of its journey, the owner will receive the hire, but entirely lose the value of the animal. If the animal dies in the middle of a journey, the owner will lose his fare, and the hirer will pay the value of the animal." 91. Said Nushirwan, "What is the law in the following case : a man is found dead, or certain events take place ; the neighbours assert that a certain person is the cause, but no one was an eye-witness, though it is certain that someone killed him. There are many accusers, but the person suspected will iiot admit it, and, as before stated, there are no eye-witnesses." The Minister made answer* " Your Majesty, if a white fowl flies in the daytime, everyone can see it and the thing is certain. If a black fowl flies at night time, who will know it ? The flapping of its wings only will be heard.* 1 With regard to a Malay's mental attitude towards a case where the evidence is slight and circumstantial, a police officer of an (unprotected) Malay State told me this. A Malay hakim had a case before him of buffalo stealing. The evidence was not clear. The hakim, on summing up, remarked, " Dalam J&rja Mlamjddi kita mau buat dalam k&lam sikit juga" (for an offence in the dark, the reasons for the verdict may be also somewhat obscure), and sentenced the man to five years' imprisonment. This occurred about January, 1907. Digitized by Google $2 PAPERS ON MALAY SUBJECTS. So the person aforementioned cannot be convicted. But many persons are aware of the flight of the black fowl on that night ; it will suffice to fine the suspected man in silver and in gold ; or he may be put away privily." 92. " What are the conditions that promote peace in a country ? " The Minister made answer, " Firstly, just laws; secondly, cheap food. Thus shall the country prosper." 93. Said Nushirwan, " What are the customs govern- ing the chiefs of the country?" The Minister made answer, " The chiefs must support their raja ; and, secondly, they must consider the welfare of the peasantry. And thus shall the country prosper." 94. " What would be the law in a case where a man received medical attendance, but was only partially cured?" The Minister made answer, "If a man is partially cured the patient must pay the cost of medicine only ; if entirely, fees as fixed by these constitutions." 95. "What is the law regulating medical fees and their amount?" The Minister made answer, "For attendance on a lunatic the fee is a tahil and a,paha — i.e., the price of a man's freedom. The fee in other cases will be one paha" 96. " What are the rules regarding ceremonial bath* ing to finally cast out evil spirits ? " The Minister made answer, " The bathing platform for a raja shall be nine stages high ; for a chief, five stages high ; the common people shall have three stages only, and it will be an offence for one of the last mentioned to irave more than three, he will have to pay a paha for transgressing the customs of the country." 97. v "What are the rules where people are talking in assembly?" Said the Minister, "Let no one interrupt Digitized by Google THE NINETY-NINE LAWS OF PERAK. 53 a conversation between two persons or answer query of chief or raja if addressed to another individual." 98. "What are the rules applying to the penghulu of a district ? " The Minister made answer, " His first duty will be to collect revenue ; his second, to see to the administration of justice ; his third, to reprove men, but not to bear malice ; his fourth, not to turn cases before him to his personal gain. If a woman require a lodging on account of sickness she must be accommodated at once ; but do not humour other persons." 99. Said Nushirwan, " What are the rules regulating the relation between rajas and the chiefs and peasants, and between the peasants and their chiefs ?" The Minister made answer, "Your Majesty, whether it be good or evil, let not the raja keep the thing to himself, but let him speak of it to his chiefs. Similarly, in trouble or prosperity, let the chiefs report to the rajas, they should not keep anything back. And the chiefs should inform the peasants of good and ill, so that the people may hear and take notice. It is the duty of the raja or chief to see that his decision in a case, if at first concealed, be made known afterwards, so that the customs of the country may not be allowed to slumber." Digitized by Google Digitized by Google MALAY TEXT. EASAL menyatakan kitab yang di-turunkan Allah ka-dalam dunia ini, banyak-nya sa-ratus empat- puloh empat buah ; yang sa-ratus itu masok kapada empat [puloh] buah y [yang empat-puloh masok kapada empat] ; yang empat itu masok kapada sa-buah. Maka di-turunkan pula hukum tujoh perkara meng- hukumkan hamba Allah taala di-dalam dunia; satu hukum kapada Nabi Adam, kedua hukum kapada Nabi Daud, ketiga hukum kapada Nabi Sulaiman, keempat hukum kapada Nabi Musa, kelima hukum pada Nabi Isa* keenam hukum kapada Nabi Ibrahim, ketujoh hukum kapada Nabi Muhammad . Maka Nabi Muhammad turun- kan pula empat perkara hukuman kapada sahabat empat itu : hukum dunia kapada Abubakar, hukum yang lemah ; kapada Baginda Omar, hukum kuat keras ; kapada Ba- ginda Osman, di-beri hukum lemah sa-dikit, kuat sa-dikit ; kapada Baginda Ali di-beri hukum yang murah. Maka demikian itu-lah di-hukumkan di-atas sakalian hamba Allah anak Adam, apa-apa bichara berhukum salah dan benar, sakalian hamba di-dalam dunia ini. Maka tiap- tiap di-hukumkan hukum yang lemah itu pun, jika betul tiada dengan aniaya boleh juga di-hukumkan; maka hukum yang kuat keras itu pun jika tiada aniaya boleh juga di-hukumkan, dan hukum lemah sadikit keras sa- dikit itu pun jika betul dengan salah-nya boleh juga, dan hukum yang murah itu pun, jika betul boleh juga di- hukumkan dengan benar-nya anak Adam. Bahwa maka ini-lah undang-undang sembilan-puloh-sembilan keturunan dari-pada Raja Nasruan Adil, anak Raja Kobat, nama negeri-nya Medayan, raja mashrek maghrib. Maka Digitized by Google 56 PAPERS ON MALAY SUBJECTS. ada sa-orang menteri-nya bernama Khodja Berdza Amir Hakim anak menteri Bahatek Jamal terus mata-nya, ia-lah jadi menteri di-bawah Raja Nasruan Adil sakalian menteri di-dalam dunia ini semua-nya di-bawah hukum- nya; jadi ini-lah undang-undang di-turunkan ka-bawah angin ini, turun-temurun menjadi ikutan pada mana-mana negeri yang ada beraja dan orang besar-besar, supaya boleh di- jalankan hukum undang-undang ini. Dan jikalau ada kadzi di-atas itu boleh sama-sama di-jalankan hukum seperti hukuman yang dalam Koran itu dengan hukum undang-undang ini. Sebab pun maka di-turunkan undang-undang ini karna ada-lah tiap-tiap negeri itu ada raja-nya dan orang besar serta dengan penghulu-nya dan anak baik-baik supaya menentukan pangkat-nya; jika di-dirikan hukum Koran dengan hukum undang-undang di-dalam sa-buah negeri neschaya aman-lah isi negeri itu. Maka barang siapa tiada mengikut hukum seperti yang tersebut di-dalam undang-undang itu, maka orang itu kena dudok di-luar negeri dan diam di-dalam hutan. Maka aman-lah orang memerentah negeri-negeri. Jikalau tiada mau memakai undang-undang dan apa-apa hukum Koran, maka tersebut di-dalam undang-undang " Orang itu tiada boleh memegang perentah di-dalam negeri, ,, demikian-lah titah Raja Nasruan Adil sama Menteri Khodja Berdza Amir Hakim, karna sakalian raja-raja dan orang besar-besar di-dalam dunia ini taalok di-bawah perentah Raja Nasruan Adil dan menteri Berdza Amir Hakim. Maka turun ka-bawah angin ini di-bawa Saiyid Hassan, tatkala masa itu Sultan Ahmad Tajuddin marhum Tanah Abang, nama menteri-nya Tuan Saiyid Abdul Majid, undang-undang jatoh kapada To* Tambak mana bangsa Saiyid jadi menteri, itu-lah utidang-undang di-pakai, satu hukum shara' dua hukum undang-undang. Digitized by Google THE NINETY -NINE LAWS OF PERAK. 57 1.' Undang-undang orang mengadir: maka titah Raja Nasruan Adil, "Apa-lah hukum-nya bilang-bilang hari orang datang mengadukan orang menchuri harta orang ?'* Maka sembah Menteri, " Ya tuan-ku, jika sa-kali boleh di-muafakatkan, siiroh ganti barang itu ; jika sampai dua kali di-potong jari-nya; jika sarapai tiga kali di-biiang orang itu daripada mukim itu." 2. TJndang-undang orang berlukaan : maka titah Raja Nasruan Adil, " Apa hukum-ny a ? ' ' Maka sembah Menteri, "Jika luka itu di-atas pusat, kena diat sa-tahok emas: ada pun di-dalam sa-tahok emas paha, di-dalam sa-paha emas itu harga-nya $5 perak, jadi-nya sa-tahok sa-paha emas itu harga-nya $25 : jika luka-nya di-bawah pusat, kena diat sa-paha emas ; jika luka berdarah sa-dikit sa- dikit dengan berputeh hati kena sa-helai kain puteh." 3. Undang-undang orang membunoh orang: maka titah Raja Nasruan Adil, " Apa-kah hukum-ny a ? " Maka sembah Menteri, " Orang yang membunoh itu, di-bunoh juga; akan tetapi jika sama orang Islam, apa-bila sampai kapada hakim, tiada boleh di-bunoh hanya di-hukum lima tahil emas sahaja dan kena khandurikan kerbau atau kambing puteh atau unta puteh supaya lepas." 4. Undang-undang orang kafir membunoh orang Islam : maka titah Raja Nasruan Adil, " Apa linkum-nya?'* Maka sembah Menteri, " Tiada boleh di-bunoh kafir itu, karna tiada-lah dapat Islam dunia akhirat : hingga minta supaya boleh mana-mana suka hati oleh kaum-nya. Jika orang kafir di-bunoh oleh orang Islam boleh di-bunoh anak Islam, akan tetapi jika lalu mengeluarkan emas pada kaum-nya dan kapada hukum emas jua sa-puloh tahil emas, boleh lepas." 5. Undang-undang orang perempuan tiada tentu faapa- nya, " Apa hukum-nya ? " Maka sembah Menteri : " Di- Digitized by Google 58 , PAPERS ON MALAY SUBJECTS. atas tiga perkara ; pertama kata perempuan itu sipolan bapa-nya anak-nya itu, karna Allah berdiri kapada yang benar tiada boleh di-buat, jika betul pada fikiran tiada dzalim kapada hamba-nya; dan jika perempuan itu tiada bunting kata-nya laki-laki membuat dia binasa." Maka sembah Menteri, " Jika dapat tanda seluar di-pakai-nya, tiada-lah boleh dapat di-jawab laki-laki itu jikalau tiada tanda, perempuan itu tengah berlutut bertemu dengan waris-nya tiada-lah dapat di-jawab oleh laki-laki itu taalek dahulu baik-baik, hukum-nya nikah juga; karna anak Islam itu jikalau banyak di-dalam negeri anak yang tiada nikah, jadi tertanggong di-atas raja-nya, karna Vanyak anak tiada nikah itu. Jika sa-orang perempuan bunting di-nikahkan juga. Dan lagi jika perempuan mengadu, tiada tanda tiga perkara itu, tiada boleh di- terima dan tiada boleh di-terima yang tiada berjalan di- dalam undang-undang." 6. " Undang-undang orang mengambil perempuan orang, apa hukum-nya ? " Maka sembah Menteri, " Di- buang dari-pada mukim itu, jika tiada di-buang di-denda sa-paha tiga tahil emas; perempuan itu di-derakan di- pintu masjid di-chukur akan dia tetapi jika lalu meng- adakan denda lepas-lah dia." 7. " Undang-undang sa-sa-orang perempuan hendak cherai dengan laki-nya, apa hukum-nya ? " Maka sem- bah Menteri, " Hukum-nya, jika sudah sampai tiga kali ka-balai ia mengadu, boleh juga di-cheraikan, tetapi kena perempuan itu menebus talak sa-banyak belanja nikah- nya, dan kena undang-undang balai sa-paha emas. Dan jika laki-laki hendak cherai, neschaja kena timbang di- dalam tiga bulan dua paha emas, belanja nikah di-bayar semua-nya dengan emas ; karna jikalau mana-mana anak Adam nikah, belanja-nya tiada lebeh daripada sa-tahil Digitized by Google THE NINETY-NINE LAWS OF PERAK. 59 sa-paha emas. Maka timbangan itu, jika tiada emas, baharu-lah boleh yang Iain-lain, karna dalam tuboh anak Adam itu darah ada-nya." 8. " TJndang-undang perkataan sahaja marah akan sa- sa-orang serta menyebut nama Allah dan nama emak bapa mereka itu, apa hukum>nya?" Maka sembah Menteri, " Salah kapada hukum kena denda sa-paha emas," 9. TJndang-undang belanja orang kahwin. Maka titah Raja Nasruan Adil, " Berapa banyak belanja tuboh perempuan itu." Maka sembah Menteri, " Sakalian dari- pada anak Adam tiada lebeh daripada sa-tahil sa-paha emas : maka timbangan-nya jika Iain-lain daripada itu ya'- itu bangsa raja-raja sa-puloh paha emas dan jika bangsa Hashim belanja-nya lima tahil emas ; karna di-ambil murtabat-nya di-lebehkan di-dalam dunia. Dan bangsa Hashim yang perempuan-nya tiada boleh kahwin dengan mereka-mereka anak Adam, melainkan jika di-tebus-nya bangsa mereka-itu; ya'itu lima paha emas baharu-lah boleh kahwin, akan tetapi emas itu hendak-lah di-sede- kahkan sa-tahil sa-paha, baharu-lah lepas." 10. " TJndang-undang abdi orang, apa hukum-nya? " Maka sembah Menteri, "Jika sa-orang jahat dengan adat-nya di-bawa-nya chukup istiadat kelengkapan di- timbang-nya boleh-lah di-nikahkan, pechah adat nama* nya ; dan kalau sa-orang hendak nikah tiada tertimbang- nya seperti itu hanya tuboh sahaja, jadi engkar nama-nya; boleh di-turunkan dengan keras. Dan jika mereka-itu membawa genap seperti adat-nya sa-olah-olah sunggoh ia hendak nikah juga: Maka jika hendak di-turunkan boleh juga, akan tetapi kena timbang kapada-nya sa- banyak belanja tuboh si-perempuan itu, dan jika sa-orang perempuan ya'itu anak dara dan ia ada mempunyai sa* orang saudara kemudian ia-nya hendak kahwin dengan Digitized by Google 60 PAPERS ON MALAY SUBJECTS. barang siapa pun, jika saudara-riya itu iiada suka, maka tiada-lah boleh ia kahwin; dan jikalau perempuan itu tiada bersaudara, boleh-lah ikut suka-nya yaani boleh-lah nikah, tetapi hukum-nya mana-mana orang besar-besar di-dalam mukim itu boleh-lah ganti saudara atau waris- nya dan jika si-perempuan itu sudah janda boleh juga mengikut kehendak hati-nya yang patut." 11. Undang-undang orang jadi raja atau jadi peng- hulu di-dalam sa-buah negeri atau mukim: maka titah Raja Nasruan AdO, "Bagaimana adat-nya?" Maka sembah menteri, "Ada-pun hntang penghulu kapada rayat-nya, pertama-tama mati rayat-nya di-tanam, kedua hilang rayat-nya di-chari, ketiga kusut di-selesaikan, ke* empat jika salah di-patutkan. Maka hutang rayat ka- pada penghulu dua perkara : pertama-tama di-laung oleh penghulu, datang ia; dan di-suroh, pergi ia; dan lagi tatkala orang mengadap bichara itu lihat baik-baik rupa- nya jika orang yang salah itu, salah rupa-nya, salah dudok-nya, salah berdiri-nya, salah perkataan-nya serba yang salah sa-barang laku-nya, maka mereka yang salah itu di»salahkan juga ; dan demikian pula yang benar itu hendak-lah di-benarkan juga hukum-nya, ^tetapi boleh di-bedzakan antara salah kechil dan salah besar di-atas mereka-mereka sakalian, dan lagi di-atas bichara mereka itu di-hukumkan betul-betul, jangan di-ambil paedah di- atas mereka-mereka itu tatkala di-dalam mana-mana bi- chara pun." 12. Undang-undang orang jadi pegawai perentah di- dalam mukim mana-mana : maka titah Raja Nasruan Adil, " Apa hukum-nya ? " Maka sembah menteri, " Boleh dapat makanan pada di-atas orang Islam ; pertama hakim yang menghukumkan daerah mukim itu, kedua-nya imam, ketiga-nya penghulu yang memeliharakan masjid, ke- Digitized by Google THE NINETY-NINE LAWS OF PERAK, 6 1 empat khatib, kelima bilal, keenam pawang, ketujoh bidan. Sebab ada pelihara-nya di-atas mukim; jikalau ada di-kuatkan siapa mereka yang tiada sembahyang jumaat, kena dam sa-tengah paha emas ; ada pun imam itu mau-lah membetulkan tahun dan bulan dan harf, betulkan apa-apa ugama Islam, ya'itu petua di-atas sa* kalian ma'amum-nya ; dan hukum orang menjadi khatib itu menegahkan daripada sakalian benchana; dan bilal itu raja di-dalam masjid dan pawang itu raja di-dalam rumah orang yang berubat karna sakit dan ladang atau di-tempat galian ; bidan itu raja di-dalam rumah orang yang sakit hendak bersalin tetapi sakalian-nya itu taalok kapada penghulu semua-nya." 13. " Undang-undang kampong atau dusun yang sudah tinggal, apa hukum-nya ? " Maka sembah Menteri, " Jikalau yang empunya tanam-tanaman itu sudah mati, barang siapa orang yang lalu-lalang pada tempat itu boleh-lah di-makan oleh mereka itu akan buah-nya, tiada dengan harga di-atas buah-buahan yang telah di-makan»- nya itu antara lalu pada tempat itu sahaja, dan jika hidup lagi tuan dusun itu maka orang asing pula diam di-situ^ tooleh-lah bersama-sama memakan buah-nya itu mereki yang empunya dan orang yang menumpang itu : jika dusun yang sudah tinggal, barang-siapa orang yang dudok clekat serta menolong peliharakan tanam-tanaman. itu, boleh-lah berbahagi dua dengan tuan-nya itu, tetapi tatkala datang tuan yang punya tanah itu, hendak meng- «,mbil buah-nya, mau-lah bersama-sama juga memberi khabar kapada orang yang diam atau menunggu dusun itu ; jika di-ambil sahaja dengan tiada berkhabar neschaya salah mereka-itu, dan di-denda sa-paha emas : dan jikfe sa-kira-nya sudah mati pula yang empunya chuohok tanaman kampong atau dusun itu, maka bahagian itu Digitized by Google 62 PAPERS ON MALAY SUBJECTS. pulang kapada anak-nya yang perempuan; karna yang tinggal itu adat-nya menjadi harta raja; dan penghulu em puny a milek." 14. " Undang-undang orang menghidupi binatang jinak seperti kerbau kambing atau Iain-lain binatang yang halal, apa hukum-nya?" Maka sembah Menteri, " Jika binatang itu di-lukai oleh barang siapa-siapa orang lain hukum-nya kena diat bahagi dua harga-nya kapada yang etapunya itu ; dan jika binatang haram di-hidup oleh orang, maka ia melukai atau membinasakan orang, hukum- nya binatang itu di-buang dan tuan-nya kena membayar sa-paha emas pada orang itu : dan jika mati pula sa-sa- ofang oleh binatang hidup-hidupan itu, maka binatang itu terpulang-lah kapada waris si-mati itu dan tuan-nya itu kena denda pula sa-tahil sa-paha emas; dan jikalau bina- tang haram berbuat demikian itu ; hanya di-bayar denda sa-paha emas sahaja." 15. " Undang-undang tanam-tanaman di-bunoh oleh orang, apa hukum-nya ? " Maka sembah Menteri, " Jika tanam-tanaman itu tinggal tiada berguna lagi; kalau tiada di-minta oleh tuan-nya sa-kali pun bayar harga-nya bahagi dua harga dan kena denda sa-paha emas, jika ta- nam-tanaman itu berguna, bayar harga-nya dan kena denda sa-paha emas." 16. Undang-undang hamba atau kawan orang lari. Maka titah Raja Nasruan Adil, " Apa hukum-nya ? " Maka eembah Menteri Khodja Berdza Amir Hakim, " Jika lepas sudah di-jalahi-nya suatu anak sungai di-dapat oleh orang, kena tebus sa-tengah paha emas ; jika sampai dua anak sungai keluar daripada mukim itu, kena tebus tengah tiga paha emas; jika orang-nya lari itu masok kapada rumah orang, maka tiada di-khabarkan-nya oleh ^uan rumah itu kapada tuan yang mengikut-nya itu salah^ Digitized by Google THE NINETY-NINE LAWS OF PERAK. 63 kena denda di-atas tuan rumah sa-paha emas ; jika hamba orang lari itu anak emas, boleh di-ambil dengan kuat, jika anak merdeheka kalau ada orang membayar-nya boleh bayar." 17. " TJndang-undang orang hutang piutang, apa hukum-nya ? " Maka sembah Menteri, "Lihat dahulu baik-baik jika ia sesak apa-apa janji-nya pun jangan di- pakai ; jika orang hendak berhutang pertama-tama betul ijtihad ada pencharian-nya yang betul apa-apa maksud- nya sebab ia hendak berhutang itu. Jikalau sebab pe- kerjaan jahat jangan di-beri berhutang." 18. "TJndang-undang orang datang mengadu sesak hutang atau sesak kira-kira-nya, apa hukum-nya ? '* Maka sembah Menteri, "Pertama-tama tolong derham; jika tiada duit tolong dengan akal ; jika tiada akal tolong dengan bichara kira-kira di-surohkan ; jika tiada tolong kudrat dengan kerja, salah suatu jangan tidak atas orang yang kesesakan itu." 19. " TJndang-undang orang menumpang rumah orang, apa hukum-nya?" Maka sembah Menteri, " Ya tuan-ku, si-penumpang itu tiap-tiap ia masok keluar daripada rumah itu mahu-lah di-nyatakan kapada tuan rumah itu ; jika di-nyatakan-nya, kalau penumpang hilang kechurian atau mati di-dawa orang di-atas punya rumah itu, dan jika sebab orang menumpang itu turun naik, maka rumah itu kena churi orang lain, maka kena ganti di- atas orang menumpang itu, bahagi dua; jika orang menumpang itu segan kena ganti dan kena denda sa- tahil sa-p$ha emas." 20. "TJndang-undang orang berjalan sama-sama, maka sampai pada suatu tempat bermalam di-mana* mana, maka sa-orang kawan-nya kehilangan barang- nya, apa hukum-nya?" Maka sembah Menteri, "Jika Digitized by Google 64 PAPERS ON MALAY SUBJECTS. hilang-nya itu pada malam hari mau-lah berbahagi sama-sama banyak mana-mana orang itu; jika hilang- nya pada siang hari barang siapa yang pnnya barang sendiri-lah sahaja ada-nya." 21. " Undang-undang orang sama sa-kampoug ber- dawa, apa hukum-nya?" Maka sembah Menteri, "Jika -dapat perdawaan sebab kelakuan atau sebab kata-kata mulut-nya sahaja tiada-lah boleh di-hukumkan dengan emas, mau-lah beri tegah sahaja dahulu; jikalau di- 43uat-nya juga Iain-lain kali, boleh di-adatkan yang betul." 22. XJndang-undang orang besar-besar tatkala datang Wang membawa aduan : maka titah Raja Nasruan Adil, ' ■" Bagaimana hukum-nya P" Maka sembah Menteri, " Ya tuan-ku, mau-lah di-chari fikiran dahulu yang sempurna karna di-atas tersebut ada baik-nya dan ada jahat-nya; inaka di-dalam baik itu ada pula jahat-nya: pertama- tama pereksa, kedua selidek, ketiga ungkit orang itu, , keempat marah, kelima pujok, keenam tipu dahulu, .ketujoh di-terangkan kebaikan di-iati-nya, kemudian baharu-lah lawan berkata-kata dan mau-lah ingat akan Allah taala dahulu apa-apa diri kita baharu-lah pan- dang inuka seteru itu, karna mana-mana Hakim itu seteru pada orang sakaliaru" 23* '" Undang-undang orang membunoh sama-sama Islam : maka titah Raja Nasruan Adil, " Apa-lah hukum- nya ? " Maka sembah Menteri, " Ya tuan-ku, jika di-bunoh orang Islam sama Islam tiada boleh di-bunoh ia jika di- bunoh jadi di-belakan binasa-lah kedua-nya, jadi mati kafir yang membunoh; yang boleh di-hukumkan kena ^diat empat tahil dua paha emas sa-kurang-kurang-nya ~dua derham, di-sedekahkan supaya lepas denda sa-tahil sa-p&ha etoas." Digitized by Google THE NINETY-NINE LAWS OF PERAK. 65 24. " TJndang-undang orang mengadap raja-raja atau orang besar-besar: maka titah Raja Nasruan Adil, "Apa hukum-nya ? " Maka seinbah Menteri, " Tatkala dudok di-balai itu mau-lah tundokkan kepala dan tiada boleh di- liarkan mata dan jangan memandang muka-nya dan suara jangan di-besarkan, tetapkan diri seperti dudok diam di-dalam adat." 25. " Undang-undang orang menjadi Hakim di-balai tatkala datang perdawaan, apa hukum-nya? " Maka sembah Menteri, "Hakim itu pertama-tama dahulu ingat- kan Allah dan Nabi, kedua ingatkan diri sendiri, ketiga semua-nya orang itu, keempat ingatkan cbucha pemanab hati-nya; kemudian baharu di-pereksa daripada mula datang kesudaban-nya, jika sudah demikian itu jikalau orang yang salah rupa muka-nya dan chakap-nya pun salah, dudok-nya pun salah, berjalan pun salah, dari- pada rupa-nya." Maka titah Raja Nasruan Adil, " Apa pula hukum-nya ? " Maka sembah Menteri Khodja Berdza Amir Hakim, " Boleh charikan mana-mana jalan- nya." 26. " TJndang-undang orang membawa kiriman orang tiada di-sarapaikan dengan di-sahaja-nya, apa hukum- nya?" Maka sembah Menteri, " Barang itu di-gantikan kena denda dua-puloh dinar; jika sebab sa-suatu aral-nya tiada di-sampaikaii jika barang-barang makan-makan di-ganti-nya bahagi dua, jika bukan barang makanan di-ganti semua-nya tiada-lah salah mereka itu." 27. "Undang-undang upah ubat orang sakit, apa hukum-nya P" Maka sembah Menteri, "Jika gil'a jadi baik sebab ubat itu, sa-tahil emas upah-nya itu; jika chabok sa-tahil emas; jika Iain-lain sakit sa-paha emas tiap-tiap belanja perkakasan ubat itu di-chari oleh pawang-nya." Digitized by Google 66 PAPERS ON MALAY SUBJECTS. 28. " Undang-undang orang membela hantu, apa hu- kum-nya?" Maka sembah Menteri, " Jika orang masok hantu sampai mandi balai, upah-nya sa-paha lima derham emas; jika membuang hantu atau menolak hantu sa-paha empat-belas derham emas ya'itu emas dinar upah-nya." 29. " Undang-undang orang membela kampong, apa hukum-nya?" Maka sembah Menteri, "Jika membela kampong sa-paha emas upah-nya, barang-barang yang lebeh itu pulang kapada pawang; jika membela galian dengan hantu, pawang itu upah-nya sa-paha emas, barang-barang yang lebeh itu pulang kapada pawang- nya juga, dan salinan pawang itu dengan baju tengkolok- nya hitam. Maka pawang-pawang itu mana-mana benda yang binasa di-poleh-nya, boleh dapat chachat-nya jika ladang atau lain-nya kain puteh satu kerat barang yang lebeh itu pulang kapada pawang dan pawang itu tiga bulan sa-kali datang memoleh padi itu supaya dapat pengkeras-nya tiap-tiap sa-orang dua derham." 30. "Undang-undang orang perempuan anak dara hendak cherai dengan laki-nya, maka laki-nya belum dapat bunga tuboh-nya lagi sebab keras perempuan itu, apa hukum-nya?" Maka sembah Menteri, "Boleh cherai belanja tuboh-nya hilang, kena tebus talak sa-tahil sa-paha '?mas. 31. " Undang-undang orang cherai, dan bahagi harta- nya, apa hukum-nya?" Maka sembah Menteri, "Jika laki-laki hendak cherai tiada-lah salah perempuan itu, bayar belanja-nya di-dalam tiga bulan, dan barang-barang bahagi dua ; mana-mana barang besi atau senjata pulang- lah kapada laki-laki, luar bahagi barang-barang tembaga atau perkakasan minum makan pulang kapada perem- puan; jika ada rumah atau kampong pulang kapada perempuan, hutang piutang pulang kapada laki-laki; jika Digitized by Google THE NINETY-NINE LAWS OF PERAK. 67 cherai sebab salah perempuan itu, pertama-tama zina, ke- dua tiada mau memerentahkan makan dan tidur, ketiga tiada mau beramal dan ibadat pada Allah, hingga di-bayar belanja tuboh sahaja, dan undang-undang di-balai sa- paha emas atas laki-laki, jika perempuan hendak cherai sampai tiga kali dia mengadukan salah laki-nya, boleh juga di-cheraikan, tetapi kena tebus talak sa-banyak belanja tuboh-nya, barang-barang pulang kapada laki- nya dan tiada-lah boleh kena apa-apa pada laki-nya; jika laki-nya itu mau nikah boleh dengan perempuan itu, kalau perempuan suka boleh juga, akan tetapi mau bawa belanja-nya seperti nikah dahulu juga." 32. "Undang-undang orang perdawaan ka-mana- mana, apa-apa yang di-patutkan ? " Maka sembah Menteri, "Di-dalam keturunan undang-undang paduka ayahanda Raja Kobat, jika perdawaan orang anak-ber- anak dengan emak-nya atau bapa-nya, maka tiada-lah boleh di-hukumkan, jika di-hukumkan neschaya dzalim raj a itu atau orang besar-besar-nya, hingga di-patutkan sahaja. Jika orang bersaudara adek-beradek boleh dengan hukum mufakat, karna adat orang anak-beranak dan adek- beradek sa-malu sa-aib rugi bersama rugi ; tiada boleh di- ikutkan ; jika di-ikutkan oleh raja-nya binasasharaV* 33. "Undang-undang orang berbahagi harta pesaka, apa hukum-nya?" Maka sembah Menteri, "Jika ada kampong dan rumah dan pinggan mangkok periok belanga tikar itu di-buat bahagi pulang pada anak yang perem- puan ; jika barang-barang besi atau senjata atau bgndang atau galian pulang pada anak laki-laki ; jika ada hutang-* piutang satu bahagi pulang pada anak perempuan, dua bahagi pulang pada anak laki-laki dan mana-mana harta barang-barang yang Iain-lain bahagi dua semua-nya, karna anak itu tiada-lah lebeh dan kurang, sama-sama di- Digitized by Google 68 PAPERS ON MALAY SUBJECTS. jadikan belaka ; dan di-dalam itu jika ada pula anak yang belum nikah dapat lebeh sa-puloh satu." 34. Undang-undang orang mati tiada beranak ada berharta : maka titah Raja Nasruan Adil, " Apa hukum- nya ? " Maka sembah Menteri, " Tatkala di-kabumikan itu, beri harta-nya ka-pada orang yang memerentah mukim daerah itu; sa-banyak belanja tuboh-nya (isi kahwin) daripada harta itu di-sedekahkan pada kadzi, jika ada lebeh lagi khandurikan sampai sa-ratus hari lagi diri-nya ; jika lebeh lagi baharu-lah dapat pada kaum-nya, kapada raja atau orang daerah mukim itu, di-beri mana- mana patut-nya barang itu." 35. " Undang-undang orang bujang yang muda belum nikah mati, maka ada harta-nya banyak dan emak bapa- nya dan saudara-nya ada belaka hidup lagi, apa hukum- nya?" Maka sembah Menteri, "Tiada-lah boleh emak bapa-nya itu dapat barang-barang-nya, yang boleh pulang pada saudara-nya, akan tetapi saudara-nya itu mau-lah di-belanjakan atas yang mati itu, dan mana-mana pakaian tuboh-nya itu pulang pada emak bapa-nya; jika orang itu tiada emak bapa-nya dan saudara-pun tidak pulang pada raja atau kadzi barang-nya itu." 36. Undang-undang abdi orang: maka titah Raja Nasruan Adil, " Apa hukura-nya ? " Maka sembah Men- teri, "Jika bangsa-nya daripada orang kafir tiada ber- kitab boleh di-jual (bukan hamba berhutang) tiada dengan hutang sa-penoh harga-nya, jika Islam emak bapa-nya sahaja yang berhutang dahulu-nya, boleh di-terima sa- tahil sa-paha emas pada sa-orang jadi penebus-nya." 37. "Undang-undang orang bunting yang tiada tentu bapa-nya, apa hukum-nya ? " Maka sembah Men- teri, "Hukum negeri Islam di-nikahkan juga, jika tiada nikah binasa negeri Islam, ya'itu banyak anak Digitized by Google THE NINETY-NINE LAWS OF PERAK. 69 tiada nikah; jika tiada lalu perempuan mencharikan bapa-nya, mau-lah raja-raja memerentah negeri itu mencharikan bapa-nya; jika negeri itu kafir raja-nya, boleh juga orang bunting itu tiada nikah." 38. " Undang-undang orang bunting dahulu, kemu- dian nikah-nya dan tatkala sudah nikah itu lalu cherai, maka apa hukum-nya?" Maka sembah Menteri, "Boleh juga cherai, tetapi-nya apa-bila beranak itu mau-lah pelihara sampai empat-puloh-empat hari oleh bapa-nya itu, jika anak-nya itu mati, di-dalam tujoh hari sahaja di-pelihara di-atas perempuan itu, upah bidan atau lain-lain-nya kena bayar oleh laki-nya." 39. " Undang-undang nafkah orang cherai?" Maka sembah Menteri, "Nafkah-nya di-dalam sa-paha emas, tetapi jika ada beranak yang kechil atau tempat di- dalam pekan besar bolfch di-beri tengah tiga paha emas; jika di-dalam negeri hutan tempat perempuan itu, ada- lah tempat membuat permakanan, seperti orang negeri itu, maka tiada-lah boleh di-beri nafkah, karna boleh ia membuat kerja sendiri-nya." * 40. "Undang-undang orang di-dalam kampong, apa hukum-nya?" Maka sembah Menteri, "Ya tuan-ku, jikalau ada sa-orang tua perempuan yang tiada beranak buah di-dalam kampong itu maka tiada boleh di-terima diam orang tua itu, kalau-kalau seperti ia menaroh hantu yang jahat mendatangkan benchana dan per- gadohan di-dalam kampong itu, dan lagi jika ada sa- orang yang jahat di-dalam kampong itu, tentu-lah di- ikut oleh orang yang banyak, mana-lah terjaga oleh ketuaan tempat itu." 41 " Undang-undang perempuan hendak cherai, tiada dengan salah suami-nya suatu pun, apa hukum-nya?" Maka sembah Menteri, "Tiada-lah dapat perempuan itu Digitized by Google 70 PAPERS ON MALAY SUBJECTS. cherai; boleh di-buang ka-dalam hutan tujoh hari sa- orang diri-nya, jika sudah balek di-kelilingkan ka-masjid supaya tahu pada orang yang di-dalam mukim itu, boleh ia ingat masing-masing." 42. " Undang-undang orang menghidup binatang itu merosakkan tanam-tanaman orang, apa hukum-nya? " Maka sembah Menteri, " Granti tanam-tanaman itu atau di-bayar harga-nya. Jika binatang itu melukakan orang, boleh di-bunoh binatang itu, tuan-nya kena denda sa-paha emas, akan tetapi tanaman itu mau-lah dengan pelihara- nya. Jika binatang kechil tiada-lah kena denda hingga di-buang sahaja ka-ayer jika ia jahat." 43. " Undang-undang orang membuka tanah dan ayer, apa hukum-nya ? " Maka sembah Menteri, " Jika datang orang yang kemudian, sa-belah ulu tempat itu tiada boleh jadi ; jika sa-belah hiKr-nya boleh jadi, tetapi jadi rosak kerja orang yang di-ulu itu tiada boleh mau- lah pulangkan belanja-nya boleh dapat bahagi dua." 44. " Undang-undang orang berladang padi di-rnakan oleh hidupan orang, apa hukum-nya?" Maka sembah Menteri, " Jika ladang itu kukoh pagar-nya, di-gonchang oleh sa-orang tiada rebah atau bergerak, jika di-masok oleh kerbau atau Iain-lain binatang boleh di-bunoh binatang itu jika binatang mula-mulakan buka pagar; jika tuan-nya itu mau bayar sa-penoh harga-nya boleh di-pulangkan hidupan-nya itu, jika tiada boleh di-ambil; jika binatang haram seperti singa atau Iain-lain binatang, salah tuan-nya itu, jika ladang itu tiada berpagar, bayar bahagi dua harga-nya yang di-adatkan, jika binatang itu masok daripada tempat orang yang tiada berpagar lalu di-makan-nya pada tempat yang kukoh pagar-nya kena- lah orang yang tiada kukoh pagar itu satu bahagi bayar, pada orang yang punya binatang itu dua bahagi*" Digitized by Google THE NINETY-NINE LAWS OF PERAK. 71 45. " Undang-undang orang mengidup singa atau gajah ya'itu binatang yang besar, apa hukum-nya ? " Maka sembah Menteri, " Jika hendak di-lepaskan kira- kira sa-keroh bumi jauh-nya daripada kampong orang, jika di-lepaskan tampak daripada kampong, jika rosak tanam-tanaman orang harga-nya bayar kena denda dua puloh lima derham ; jika kerbau atau leinbu makan pada siang hari di-dalam ladang itu, tiada bayar harga-nya, jikalau malam bayar harga-nya/ ' 46. " Undang-undang orang berjual beli kerbau atau kambing, kemudian hilang, apa hukum-nya?" Maka sembah Menteri Khodja Berdza Amir Hakim, " Jika sa- orang membeli kerbau pada hari itu hilang kapada tempat-nya, di-chari tiada dapat, serta belum lepas dari- pada mukim itu, maka pulang harga-nya bahagi dua; jika mati hari itu di-dalam tempat dusun membeli itu, pulang harga-nya bahagi dua; jika hilang di-churi orang kena atas orang yang membeli sahaja; jika orang mukim itu yang membeli-nya, jika sudah di-bawa-nya lepas dari- pada di-dalam kampong tempat membeli itu hilang atau mati, tiada boleh di-dawa lagi; jika di-dalam tempat membeli lagi hilang-nya, pulang bahagi dua harga-nya." 47. " Undang-undang orang menghidup kambing, apa hukum-nya ? " Maka sembah Menteri, " Jika di-makan- nya tanam-tanaman orang yang ada pagar-nya bayar harga-nya, jika tiada pagar-nya tiada bayar harga-nya, karna bangsa kambing itu di-dalam kampong tempat- nya. 48. "Undang-undang orang menghidup ayam dan itek di-bunoh orang, apa hukum-nya?" Maka sembah Menteri, "Jika sa-orang membunoh ayam dan itek di- bawah rumah orang, salah, harga-nya bayar, dan kena denda sa-puloh dinar; jika di-bunoh di-luar rumah bayar Digitized by Google 12 PAPERS ON MALAY SUBJECTS. harga sahaja; jika binatang halal di-jadikan haram di- bunoh salah." 49. Undang-undang masok ka-negeri orang, maka titah Raja Nasruan Adil, apa hukum-nya ? " Maka sembah Menteri Khodja Berdza Amir Hakim, "Jika me- lalui kampong orang kain labohkan; jika naik rumah oraog kalau tiada orang laki-laki di-dalam rumali itu boleH dudok hingga muka pintu sahaja, sa-belah kaki di-tangga; jika bertemu di-dalam negeri itu dengan orang berperang orang dagang dengan anak negeri masoki sa-belah anak negeri; jika sama-sama anak-anak negeri berperang jangan di-masoki; jika hendak dudok di-negeri orang, pertama-tama beri hormat kapada raja- raja yang memerentah negeri, kedua kapada orang besar-besar di-negeri itu, ketiga pada ketuaan atau pegawai masjid, supaya tiada boleh terkena aniaya ; apa- apa adat orang daerah itu ikut dan jangan berlebeh- lebeh." 50. " Undang-undang orang berzina dengan sa-orang perempuan sudah sampai aduan kapada penghulu mukim itu, apa hukum-nya?" Maka sembah Menteri, "Jika mengaku antara kedua-nya boleh-lah di-nikahkan dan kena denda sa-paha emas; jika penghulu mukim itu tiada-lah, salah, salah boleh muafakat." 51. "Undang-undang orang dagang masok kampong orang hendak bermalam, apa hukum-nya P " Maka sem- bah Menteri, "Jika tiada di-beri tempat, salah, serta di-beri chukup makan, hingga sa-kal^malam.' , 52. Undang orang berbunoh-bunohan ; maka titah Raja Nasruan Adil, " Hai Menteri-ku yang budiman lagi terus mata: mau-lah chari hukum-nya yang satu perkara lagi ini; maka sebab perkara raja di-dalam dunia ini tiada-lah dua (tiga) lagi raja mashrek raja Digitized by Google THE NINETY-NINE LAWS OF PERAK. 73 4 — __ __________^__ ftiaghrib daksina dan paksina?" Maka sembah Men- teri, " Baik-lah tuan-ku." Maka Menteri itu pun ber- pikir sa-ketika kemrudian baharu-lah bangkit meng- gerakkan kepala-nya; maka sembah Menteri Khodja Berdza Amir Hakim, "Ya tuan-ku, ada-lah juga satu perkara hukum-nya; ada pun sakalian anak Adam ini di-hukumkan kapada sa-orang, lima chupak sahaja darah-nya, jika mati sa-orang bunoh sa-orang keluar darah-nya, maka diat-Hya darah itu sa-tahil sa-paha emas ; dan kena denda itu lima tahil emas, karna sebab mengeluarkan darah daripada tuboh anak Adam, maka seperti nyawa itu bila-bila pun, Allah taala yang em- punya milek." Dan-lagi sembah menteri itu, "Ya tuan-ku ada pun gunaan emas perak derham, di-turun- kan ka-dalam dunia ini, pertama-tama melepaskan sa- kalian anak Adam yang di-bunoh oleh raja-raja yang belum umur apabila ada bersalahan, denda atas ke- salahan diri-nya, ya'itu supaya terlepas tiada boleh ter- bunoh lagi itu-lah guna-nya emas, daki dunia ini di- turunkan; dan yang Iain-lain buat amal dan buat makan, dan buat pakai mana-mana yang di-beri Allah, kalau banyak emas itu boleh lepas apa-apa dosa-nya, karna mana-mana mereka yang dapat emas itu Allah memberi-nya kalau jadi apa-apa di-atas-nya kemudian." Maka sembah Menteri, "Ya tuan-ku jika apa dosa-nya mereka itu kalau lalu ia mengeluarkan timbangan-nya emas, boleh lepas semua-nya dosa itu di-dalam dunia ini, jika tiada yang demikian itu, tiada-lah berguna emas mi. 53. " Undang-undang orang bahagi harta fasal cherai, apa hukum-nya ?" Maka sembah Menteri, "Jika barang-barang itu di-bawa-nya dari-pada emak bapa-nya, tatkala belum nikah masing-masing ada Digitized by Google 74 PAPERS ON MALAY SUBJECTS. ■ jnembawa harta : maka harta itu-lah yang di-namakan harta sa-belah, tiada boleh masok ka-dalam perbahagian . cherai itu. Tetapi-nya jika sampai tiga tahun sudah bersama-saraa serta dapat anak boleh di-masokkan." "Dan mereka itu nikah dengan sa-orang perempuan, dapat anak dan dapat harta kemudian cherai, maka laki-laki itu nikah pula dengan lain perempuan dapat anak dan harta, kemudian mati, bagaimana hukum- nya?" Maka sembah Menteri, "Jikalau harta itu mana-mana yang dapat di-dalam isteri dahulu, tiada- lah dapat pesaka anak yang kemudian ibu itu; jika harta itu dapat pada isteri yang kemudian tiada-lah boleh anak yang dahulu itu pesaka-nya, hingga yang boleh dapat harta kenang-kenangan sahaja masing- masing." 54. "Undang-undang orang perempuan mengadu Jiendak cherai apa hukum-nya?" Maka sembah Menteri, " Pertama-tama tiada nafkah batin, kedua tiada nafkah dzahir, boleh-lah cherai." 55. " Undang-undang orang kaya, apa hukum-nya?" Maka sembah Menteri, "Jika banyak orang kaya di-dalam mukim itu sangat-lah baik-nya di-atas mukim itu, tetapi- nya orang kaya itu mau-lah murah atas orang-orang dan hendak hormat kapada raja-raja dan pada penghulu, hendak-lah beri sadikit emas kapada orang yang berbuat taat, dan lagi khanduri sa-kali sa-tahun sa-kurang-kurang- nya tiada boleh tidak, dan besarkan nama dunia dan sedekah pada miskin." 56. Undang-undang (perbunohan) : maka titah Raja Nasruan Adil, "Hai menteri-ku, apa sebab-nya maka di- dalam negeri orang kafir membunoh orang Islam tiada boleh di-bunoh kafir itu." Maka sembah Menteri, "Jikalau di-belakan tiada-lah dapat baik-nya di-atas Digitized by Google THE NINETY-NINE LAWS OF PERAK. 75 Islam dunia dan akhirat, karna anak Islam itu dua per- kara di-pakai-nya, pertama dunia kedua akhirat, dan ka- fir itu pakai dunia sahaja, dan lagi jika Islam itu mati di-bunoh kafir jika di-bunoh kafir itu di-belakan, jadi kafir-lah mereka-itu sama-sama." 57- Undang-undang orang nikah dua kali: makatitali Raja Nasruan Adil, " Hai menteri-ku, apa sebab-nya sa- orang perempuan yang nikali kedua kali-nya belanja tuboh-nya sa-banyak yang mula-nya juga?" Maka sembali Menteri, " Ya tuan-ku, ada pun sa-orang bangsa Hashim atau mana-mana bangsa Islam nikah dengan raja atau orang besar-besar di-negeri itu jika sudah janda, janda-nya tiada kurang belanja-nya, seperti dahulu juga. Maka suatu bangsa Hashim atau raja nikah dengan bangsa di-bawah dari-pada-nya boleh dapat tebus talak lima tahil emas, dan belanja-nya bangsa Hashim itu lima tahil emas bayaran, timbangan lima tahil itu lima ratus bidur banyak-nya." 58. " Undang-undang orang pegawai masjid di-dalam mukim : maka titah Raja Nasruan Adil, " Apa hukum- nya?" Maka sembah menteri, "Ya tuan-ku, ada pun orang jadi imam dan khatib dan bilal itu, pertama- tama hendak baik paras-nya, sipat-nya tiada binasa, kedua baik suara-nya, ketiga hendak tahukan hari bulan dan tahun, keempat suka hati-nya bersusah-susah, kelima murah perkataan kapada orang-orang, keenam pagi-pagi jemaat terdahulu masok ka-dalam masjid daripada orang yang banyak, dan mana-mana rosak masjid mau di- pelihara-nya." 59. " Undang-undang orang jadi pawang, apa hukum- nya?" Maka sembah Menteri, "Ada pun pawang hendak panjang akal-nya, dan ia berkata-kata dengan baik dan usaha bersusah-susah, dan tiada boleh berbuat Digitized by Google j6 PAPERS ON MALAY SUBJECTS. bohong kapada orang-orang dan jangan berjahat dengan perempuan laic-lain; maka orang sakit jika ada, mau segera pergi, karna pawang di-dalam mukim itu balas- nya tiada kena rapai dan surohan raja-raja dan orang besar-besar." 60. " Undang-undang orang jadi bidan, apa hukum- nya ? " Maka sembah Menteri, " Ampun tuan-ku, ada- pun bidan itu hendak keras hati-nya, hendak betul-betul kapada orang-orang dan jangan menyerapa-nyerapa orang dan waktu orang beranak pergi segera; maka sakalian anak Adam ini upah bidan-nya tengah tiga derham lima bidur, dan kain sa-helai, minyak chara Perak satu, di-dalam tujoh hari mau-lah bidan pelihara di-dalam rumah itu." 61 . " Undang-undang orang menaroh anak perempuan bujang, apa hukum-nya ? " Maka sembab Menteri, " Ya tuan-ku, ada-lah menaroh perempuan bujang itu seperti menaroh emas baik-baik-nya dan jahat-nya seperti menaroh api di-tengah kampong. Jika sampai umur-nya tujoh-belas tahun, mau-lah di-charikan suami-nya, jika orang kurang hendak suamikan itu beri khabar kapada- nya dahulu, dan jika orang lebeh pun beri khabar juga, jika sama-sama antara nanti sahaja boleh jadi." 62. "Undang-undang orang menaroh anak laki-laki bujang, apa hukum-nya?" Maka sembah Menteri, " Jangan-lah di-beri oleh emak bapa-nya kain baju, jika ia hendak berniaga jangan-lah di-beri mudal dari-pada emak bapa-nya ; jika hendak [di-pinangkan chari orang per- tengahan, jika berkata-kata dengan orang jangan di-puji anak itu, yang menjadi hutang kapada emak bapa-nya di-atas anak itu, pertama-tama surohkan mengaji Koran, kedua elmu dunia, ketiga tatkala ia nikah jika sudah lepas itu lepas-lah hutang emak bapa-nya kapada anak." Digitized by Google THE NINETY-NINE LAWS OF PERAK. 77 63. "Undang-undang orang menchari elmu, per- tama-tama pada orang yang di-kaseh orang, kedua ka- pada orang melawan orang, ketiga kapada orang yang beriman, keempat pada orang jahat; itu-lah tempat elmu." 64. " Undang-undang orang menaroh elmu ? " " Per- tama-tama pengetahuan-nya itu panjang di-nampakkan kapada orang, kedua jika orang berguru jangan peng- keras-nya karna duit, ketiga jangan di-buat seperti pantun, keempat di-dalam hati hendak-lah di-muliakan, kelima jangan di-besarkan murid pada orang, keenam jangan bermuridkan orang yang kurang bangsa, ketujoh jangan di-ajarkan pada orang yang tiada beriman, ke- delapan elmu itu hendak-lah di-amalkan." 65. " Undang-undang orang baharu lepas nikah bagai- mana hukum-nya ? " Maka sembah Menteri, " Laki-laki itu hendak-lah hormat kapada saudara pererapuan itu, di-dalam tujoh hari jangan tetap sangat dudok di-rumah mau berjalan pada Iain-lain tempat, tatkala datang di- rumah dudok di-luar kelambu, dan mau tahan nafsu di- dalam empat-puloh hari, supaya baik iman di-atas kedua- nya. 66. "Undang-undang orang beristeri, bagaimana hukum-nya? , ' Maka sembah Menteri, "Ya tuan-ku, kehendak-nya pertama-tama jika badan-nya dapat sakit mau ubatkan dan yang kedua keberatan-nya pula, ketiga atas makan minum dan pakai-nya mana-mana kadar-nya, keempat hendakkan rumah tempat dudok, kelima ia hendak bertanam-tanam jalan membuat ke- hidupan, jika sebab itu ia marahkan suami-nya jangan di-lawan oleh suami-nya, jika kehendak-nya yang lain dari-pada itu sa-kali-kali jangan di-ikutkan suami-nya, apa-apa perkataan-nya jangan di-dengarkan dan apa-; Digitized by Google 78 PAPERS ON MALAY SUBJECTS. apa rahsia jangan di-khabarkan kapada-nya, karna perempuan itu seperti menaroh seteru di-dalam selimut ; dan jangan di-chemburukan, tidak di-chemburukan pun tiada-lah juga boleh jadi, dan tempat makan atau terapat tidur jangan di-beri laki-laki yang lain dudok tidur tiada baik, dan lagi jangan perchayakan sama- sama sa-orang laki-laki dengan perempuan, karna laki- laki dengan perempuan itu seperti mata-hari dengan bulan, tiada-lah boleb berdekat-dekat karna seperti perempuan jika sudah jabat dengan Iain-lain orang hukum-nya pertama-tama cherai, kedua di-bunoh, ke- tiga tinggalkan negeri itu, keempat di-nikahkan : maka yang empat perkara itu sudah-lah di-dalam dunia ini." 67. Undang-undang orang mengambil perempuan orang: maka titab Raja Nasruan Adil, "Apa hukum- nya P" Maka sembah Menteri Khoja Berdza Amir Hakim, " Ya tuan-ku, jika bertemu di-dalam tiang empat itu, boleh di-tikam oleh laki-laki tiada apa-apa dawa sa-belah perempuan itu dan kerat rambut-nya, jika sudah sampai pada raja atau pada penghulu mukim itu, tiada-lah boleh di-bunoh lagi, hukum-nya perem- puan itu turun badan sahaja, jika hutang pulang pula mereka yang mengambil perempuan itu, dan- lagi belanja nikah perempuan itu pulang pada laki-nya itu, dan salah kapada laki-nya itu kena denda sa-tahil sa-paha emas, dan-lagi kapada mukim kena sa-tahil sa-paha emas. Jika lalu di-bayar-nya boleh mereka- itu lepas dan boleh nikahkan, dan jika tiada terbayar- nya apa-apa adat negeri itu, tiada boleh cE-nikahkan, orang itu di-halau daripada mukim itu serta di-denda- kan sa-tahil sa-paha emas; jika tiada bayaran-nya ambil barang-barang-nya apa yang ada pada badan-nya, sebut seperti binatang." Digitized by Google THE NINETY-NINE LAWS OF PERAK. 79 68. " Undang-undang mengambil tunangan orang, apa hukum-nya ? " Maka sembah Menteri, " Tiada boleh di-bunoh hingga boleh di-pukul jika kesalahan itu sampai pada penghulu boleh di-nikahkan tetapi belanja-nya ganda, yang ganda itu pulang pada tunang-nya dan kena denda sa-tahil sa-paha emas; dan jika ada sa-suatu tanda tunang-nya itu yang beri kapada perempuan itu, satu pulang dua, jika barang makan barang pakaian yang sudah di-pakai oleh tunang-nya, tiada-lah boleh pulang balek, jika laki-laki yang mengambil itu tiada lalu membayar mana-mana adat negeri serta kaum-nya pun tiada boleh di-nikahkan, dan boleh di-halau dan di-pukul dan di-rampas; mereka-itu membuat angkara nama-nya." 69.