half, in con*
tracts-,
and for the
management
o f J'ui/s,
or criminal
profecutions;
or for the
payment or
exa&ion of
all rights
except retaliation
or
fUnifhmtnt.
caufe, as an individual is fometimes prevented from a fling in his own
perfon, in confequence of accidental c'ircumftances, (fuch as ficknefs,.
or the like,) he is therefore admitted, of neceffity,, to appoint another
his agent, in order that that perfon may expedite his wants by means of
the powers which he derives from fuch appointment. It isr moreover
related in the N a il Saheeh, that the prophet appointed Hakeem-Bin-
Khirdm his agent fo r pur chafe, in order that he might buy for him a
camel to facrifice;— and likewife, that he appointed Amir-Bin-Aum
his agent fo r marriage, | that he might conclude a marriage betwixt his
mother and the prophet.
I t is lawful for a perfon to appoint another his agent for the management
of a fuit relative to any rights whatever, (even to corporal,
punifhment or retaliation,) for the reafons already alleged; and alfo,.
becaufe every perfon is not himfelf capable of managing a bufinefs of
this nature.— It is moreover recorded,, in the N a il Saheeh$ that Alee
appointed Akeel his agent for the management of his fuits,. and that
when Akeel became old he difmifled him, and appointed Abdoola-Bin-
J a f r..— In the fame manner, alfo, it is lawful to appoint an a°-enf for
the payment of rights, or the exaction of them : excepting, however,
in cafes of punifhment or retaliation, the appointment o f an agent
in which (as if an agent were appointed to exadt thofe in the abfence
of his principal) is invalid ; becaufe punifhment or retaliation are remitted
in the exigence o f a doubt; and the abfence of the principal
creates a doubt; nay, the forgivenefs of the profecutor is probable in
fuch a circumftance, for this reafon, that it is praifewotthy and laudable
to pardon: contrary to where the witnejfes only are abfent [from
the execution,] as their retractation is moft probable: and contrary,
alfo, to where the profecutor is prefent, as in this cafe there is
no apprehenfion of his having forgiven.
O b j e c t i o n .— In cafe of the prefence of the principal, what neceffity
exifts for the appointment of an agent ?
Reply.—E ven in fuch cafe there may be a neceffity for the appointment
pointment of an agent; becaufe, as every perfon is not perfe&ly acquainted
with the mode of exacting thofe rights, it follows that if the
principal were debarred from the appointment of an agent, ybe door
o f exadtion might be altogether clofed.
— What is here advanced is according to Haneefa.— Aboo Toofaf alleges .
that agency for the eftablifhment of corporal punifhment or retaliation*
(as if the agent fhould produce the witnefles) is not lawful.— T h e opinion
o f Mohammed coincides with that oiHaneefa.— Some, however, maintain
that he agrees with Aboo Toofaf.— Others, again, fay that this difagree-
ment fubfifts only in cafe of the abfence of the conftituent, and not in
cafe of bisprefence; for, in this cafe, the agency is legal, according to all;
becaufe the words of an agent in the prefence of his conftituent refer
entirely to the latter.— T h e argument of Aboo Toofaf upon this point
is, that the appointment of an agent is the creation of a deputy, in
which there is always room for doubt reflecting the deputation; and
as, in criminal profecutions, every doubt m-uft be avoided, it follows
that the appointment of an agent for profecution is invalid, in the fame
manner as for the exadtion of punifhment; and that it cannot be admitted
; in the fame manner as evidence to evidence, refpedting the
profecution, is not admitted.—T h e argument o i Haneefa is, that profecution
is merely a condition of the exaction of the right; becaufe the
neceffity of the punifhment is founded, not upon the profecution, but
upon the criminality, which is rendered manifeft by the evidence
of the witnefles: and hence agency is admitted in this cafe, in the fame
manner as in that of other rights.— A fimilar difagreement fubfifts
with refpedt to the cafe,of a man againft whom an action inducing
corporal punifhment or retaliation lies, and who appoints an agent for
the management of his defence__T h e dodtrine o f Haneefa, however, a perfon unis
preferred in this inftance, becaufe the agent may make replies and re- cmfioT
joinders; and the doubt wtih refpedt to deputation (as before mentioned)
does not prevent this.— If, however, the agent fhould make a con- defence.
J n other words, fa r conducing a criminal profecution.
B 2 fe fo n ,