7 Sokeiker al Dimishki, and Auctor libri al Mostatraf, apud Hyde, ubi sup. p. 8. 8 Khondemir. apud eund. ibid. p. 41. 1 Vide Hyde, ubi sup. p. 9. 2 Vide eundem, in Proleg. and Chardin, Voy. de Perse, t. 2, p. 46. 3 Lib. iv. ad Nicom. 4 Vide Horat. l. 3. Carm. Od. 24. 5 ff. de Aleatoribus. Novell. Just. 123, &c. Vide Hyde, ubi sup. in Hist. Aleæ, p. 119. 6 Authent. interdicimus, c. de episcopis. 7 In com. ad Legem Præd. 8 Du Fresne, in Gloss. 9 Bava Mesia, 84, I; Rosh hashana and Sanhedr. 24, 2. Vide etiam Maimon. in Tract. Gezila. Among the modern civilians, Mascardus thought common gamesters were not to be admitted as witnesses, being infamous persons. Vide Hyde, ubi sup. in Proleg. et in Hist. Aleæ, § 3. 10 Kor. c. 5. 11 See before, p. 16.
third happened to be drawn, they mixed them and drew over again, till a decisive answer was given by one of the others. These divining arrows were generally consulted before anything of moment was undertaken; as when a man was about to marry, or about to go a journey, or the like.1 This superstitious practice of divining by arrows was used by the ancient Greeks,2 and other nations; and is particularly mentioned in scripture,3 where it is said, that "the king of Babylon stood at the parting of the way, at the head of the two ways, to use divination; he made his arrows bright" (or, according to the version of the Vulgate, which seems preferable in this place, "he mixed together, or shook the arrows"), "he consulted with images," &c.; the commentary of St. Jerome on which passage wonderfully agrees with what we are told of the aforesaid custom of the old Arabs: "He shall stand," says he, "in the highway, and consult the oracle after the manner of his nation, that he may cast arrows into a quiver, and mix them together, being written upon or marked with the names of each people, that he may see whose arrow will come forth, and which city he ought first to attack."4 A distinction of meats was so generally used by the eastern nations, that it is no wonder that Mohammed made some regulations in that matter. The Korân, therefore, prohibits the eating of blood, and swine's flesh, and whatever dies of itself, or is slain in the name or in honour of any idol, or is strangled, or killed by a blow, or a fall, or by any other beast.5 In which particulars Mohammed seems chiefly to have imitated the Jews, by whose law, as is well known, all those things are forbidden; but he allowed some things to be eaten which Moses did not,6 as camels' flesh7 in particular. In cases of necessity, however, where a man may be in danger of starving, he is allowed by the Mohammedan law to eat any of the said prohibited kinds of food;8 and the Jewish doctors grant the same liberty in the same case.9 Though the aversion to blood and what dies of itself may seem natural, yet some of the pagan Arabs used to eat both: of their eating of the latter some instances will be given hereafter; and as to the former, it is said they used to pour blood, which they sometimes drew from a live camel, into a gut, and then broiled it in the fire, or boiled it, and ate it:1 this food they called Moswadd, from Aswad which signifies black; the same nearly resembling our black puddings in name as well as composition.2 The eating of meat offered to idols I take to be commonly practised by all idolaters, being looked on as a sort of communion in their worship, and for that reason esteemed by Christians, if not absolutely unlawful, yet as what may be the occasion of great scandal:3 but the Arabs were particularly superstitious in this matter, killing what they ate on stones erected on purpose around the Caaba, or near their own houses, and calling, at the same time, on the name of some idol.4 Swine's flesh, indeed, the old Arabs seem not to have eaten; and their prophet, in
1 Ebn al Athîr, al Zamakh. and al Beid. in Kor. c. 5. Al Mostatraf, &c. Vide poc. Spec. p. 327, &c., and D'Herbel. Bibl. Orient. Art Acdâh. 2 Vide Potter, Antiq. of Greece, vol. i. p. 334. 3 Ezek. xxi. 21. 4 Vide Poc. Spec. p. 329, &c. 5 Cap. 2, p. 18; c. 5, p. 73; c. 6; and c. 16. 6 Lev. xi. 4. 7 See Kor. c. 3, p. 37 and 42, and c. 6. 8 Kor. c. 5, p. 74, and in the other passages last quoted. 9 Vide Maimon. in Halachoth Melachim. c. 8, § i., &c. 1 Nothr al dorr, al Firauz., al Zamakh., and al Beid. 2 Poc. Spec. p. 320. 3 Compare Acts xv. 29 with I Cor. viii. 4, &c. 4 See the fifth chapter of the Kor. p. 73, and the notes there.
prohibiting the same, appears to have only confirmed the common aversion of the nation. Foreign writers tell us that the Arabs wholly abstained from swine's flesh,5 thinking it unlawful to feed thereon,6 and that very few, if any, of those animals are found in their country, because it produces not proper food for them;7 which has made one writer imagine that if a hog were carried thither, it would immediately die.8 In the prohibition of usury9 I presume Mohammed also followed the Jews, who are strictly forbidden by their law to exercise it among one another, though they are so infamously guilty of it in their dealing with those of a different religion: but I do not find the prophet of the Arabs has made any distinction in this matter. Several superstitious customs relating to cattle, which seem to have been peculiar to the pagan Arabs, were also abolished by Mohammed. The Korân10 mentions four names by them given to certain camels or sheep, which for some particular reasons were left at free liberty, and were not made use of as other cattle of the same kind. These names are Bahîra, Sâïba, Wasîla, and Hâmi: of each whereof in their order. As to the first, it is said that when a she-camel, or a sheep, had borne young ten times, they used to slit her ear, and turn her loose to feed at full liberty; and when she died, her flesh was eaten by the men only, the women being forbidden to eat thereof: and such a camel or sheep, from the slitting of her ear, they called Bahîra. Or the Bahîra was a she-camel, which was turned loose to feed, and whose fifth young one, if it proved a male, was killed and eaten by men and women promiscuously; but if it proved a female, had its ear slit, and was dismissed to free pasture, none being permitted to make use of its flesh or milk, or to ride on it; though the women were allowed to eat the flesh of it when it died: or it was the female young of the Sâïba, which was used in the same manner as its dam; or else an ewe, which had yeaned five times.1 These, however, are not all the opinions concerning the Bahîra: for some suppose that name was given to a she-camel, which, after having brought forth young five times, if the last was a male, had her ear slit, as a mark thereof, and was let go loose to feed, none driving her from pasture or water, nor using her for carriage;2 and others tell us, that when a camel had newly brought forth, they used to slit the ear of her young one, saying, "O GOD, if it live, it shall be for our use, but if it die, it shall be deemed rightly slain;" and when it died, they ate it.3 Sâïba signifies a she-camel turned loose to go where she will. And this was done on various accounts: as when she had brought forth females ten times together; or in satisfaction of a vow; or when a man had recovered from sickness, or returned safe from a journey, or his camel had escaped some signal danger either in battle or otherwise. A camel so turned loose was declared to be Sâïba, and, as a mark of it, one of the vertebræ or bones was taken out of her back, after which none might drive her from pasture or water, or ride on her.4 Some say that the Sâïba, when she had ten times together brought forth females, was suffered to go at liberty, none being allowed to ride on her, and
5 Solin. de Arab. c. 33. 6 Hieronym. in Jovin. l. 2, c. 6. 7 Idem, ibid. 8 Solinus, ubi supra. 9 Kor. c. 2, p. 33, 34. 10 Cap. 5, p. 86. 1 Al Zamakh., al Beidâwi, al Mostatraf. 3 Ebn al Athîr. 4 Al Firauzab., al Zamakh.
that her milk was not to be drank by any but her young one, or a guest, till she died; and then her flesh was eaten by men as well as women, and her last female young one had her ear slit, and was called Bahîra, and turned loose as her dam had been.5 This appellation, however, was not so strictly proper to female camels, but that it was given to the male when his young one had begotten another young one:6 nay, a servant set at liberty and dismissed by his master, was also called Sâïba;7 and some are of opinion that the word denotes an animal which the Arabs used to turn loose in honour of their idols, allowing none to make uses of them, thereafter, except women only.1 Wasîla is, by one author,2 explained to signify a she-camel which had brought forth ten times, or an ewe which had yeaned seven times, and every time twin; and if the seventh time she brought forth a male and a female, they said, "Wosilat akhâha," i.e., "She is joined," or, "was brought forth with her brother," after which none might drink the dam's milk, except men only; and she was used as the Sâïba. Or Wasîla was particularly meant of sheep; as when an ewe brought forth a female, they took it to themselves, but when she brought forth a male, they consecrated it to their gods, but if both a male and a female, they said, "She is joined to her brother," and did not sacrifice that male to their gods: or Wasîla was an ewe which brought forth first a male, and then a female, on which account, or because she followed her brother, the male was not killed; but if she brought forth a male only, they said, "Let this be an offering to our gods."3 Another4 writes, that if an ewe brought forth twins seven times together, and the eighth time a male, they sacrificed that male to their gods; but if the eighth time she brought both a male and a female, they used to say, "She is joined to her brother," and for the female's sake they spared the male, and permitted not the dam's milk to be drunk by women. A third writer tell us, that Wasîla was an ewe, which having yeaned seven times, if that which she brought forth the seventh time was a male, they sacrificed it, but if a female, it was suffered to go loose, and was made use of by women only; and if the seventh time she brought forth both a male and a female, they held them both to be sacred, so that men only were allowed to make any use of them, or to drink the milk of the female: and a fourth5 describes it to be an ewe which brought forth ten females at five births one after another, i.e., every time twins, and whatever she brought forth afterwards was allowed to men, and not to women, &c. Hâmi was a male camel used for a stallion, which, if the females had conceived ten times by him, was afterwards freed from labour, and let go loose, none driving him from pasture or from water; nor was any allowed to receive the least benefit from him, not even to shear his hair.6 These things were observed by the old Arabs in honour of their false gods,1 and as part of the worship which they paid them, and were ascribed to the divine institution; but are all condemned in the Korân, and declared to be impious superstitions.2
5 Al Jawhari, Ebn al Athîr. 6 Al Firauz. 7 Idem, al Jawhari, &c. 1 Nothr al dorr and Nodhm al dorr. 2 Al Firauz. 3 Idem, al Zamakh. 4 Al Jawhari. 5 Al Motarrezi. 6 Al Firauz., al Jawhari. 1 Jallal. in Kor. 2 Kor. c. 5, p. 86, and c. 6. Vide Poc. Spec. p. 330-334.
The law of Mohammed also put a stop to the inhuman custom which had been long practised by the Pagan Arabs, of burying their daughters alive, lest they should be reduced to poverty by providing for them, or else to avoid the displeasure and the disgrace which would follow, if they should happen to be made captives, or to become scandalous by their behaviour;3 the birth of a daughter being, for these reasons, reckoned a great misfortune,4 and the death of one as a great happiness.5 The manner of their doing this is differently related: some say that when an Arab had a daughter born, if he intended to bring her up, he sent her, clothed in a garment of wool or hair, to keep camels or sheep in the desert; but if he designed to put her to death, he let her live till she became six years old, and then said to her mother, "Perfume her, and adorn her, that I may carry her to her mothers;" which being done, the father led her to a well or pit dug for that purpose, and having bid her to look down into it, pushed her in headlong, as he stood behind her, and then filling up the pit, levelled it with the rest of the ground; but others say, that when a woman was ready to fall in labour, they dug a pit, on the brink whereof she was to be delivered, and if the child happened to be a daughter, they threw it into the pit, but if a son, they saved it alive.6 This custom, though not observed by all the Arabs in general, was yet very common among several of their tribes, and particularly those of Koreish and Kendah; the former using to bury their daughters alive in Mount Abu Dalâma, near Mecca.7 In the time of ignorance, while they used this method to get rid of their daughters, Sásaá, grandfather to the celebrated poet al Farazdak, frequently redeemed female children from death, giving for every one two she-camels big with young, and a he-camel; and hereto al Farazdak alluded when, vaunting himself before one of the Khalîfs of the family of Omeyya, he said, "I am the son of the giver of life to the dead;" for which expression being censured, he excused himself by alleging the following words of the Korân,8 "He who saveth a soul alive, shall be as if he had saved the lives of all mankind."1 The Arabs, in thus murdering of their children, were far from being singular; the practice of exposing infants and putting them to death being so common among the ancients, that it is remarked as a thing very extraordinary in the Egyptians, that they brought up all their children;2 and by the laws of Lycurgus3 no child was allowed to be brought up without the approbation of public officers. At this day, it is said, in China, the poorer sort of people frequently put their children, the females especially, to death with impunity.4 This wicked practice is condemned by the Korân in several passages;5 one of which, as some commentators6 judge, may also condemn
3 Al Beidâwi, al Zamakh., al Mostatraf. 4 See Kor. c. 16. 5 Al Meidâni. 6 Al Zamakh. 7 Al Mostatraf. 8 Cap. 5, p. 77. 1 Al Mostatraf. Vide Ebn Khalekân, in Vita al Farazdak, and Poc Spec. p. 334. 2 Strabo, l. 17. Vide Diodor. Sic. l. I, c. 80. 3 Vide Plutarch, in Lycurgo. 4 Vide Pufendorf, de Jure Nat. et Gent. l. 6, c. 7, § 6. The Grecians also treated daughters especially in this manner-whence that saying of Posidippus: [Greek text],-i.e., "A man, tho' poor, will not expose his son; But if he's rich, will scarce preserve his daughter."- See Potter's Antiq. of Greece, vol. ii. p. 333. 5 Cap. 6, p. 101, 103; c. 16; and c. 17. See also chap. 81. 6 Al Zamakh., al Beid.
another custom of the Arabians, altogether as wicked, and as common among other nations of old, viz., the sacrificing of their children to their idols; as was frequently done, in particular, in satisfaction of a vow they used to make, that if they had a certain number of sons born, they would offer one of them in sacrifice. Several other superstitious customs were likewise abrogated by Mohammed, but the same being of less moment, and not particularly mentioned in the Korân, or having been occasionally taken notice of elsewhere, I shall say nothing of them in this place.
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THE Mohammedan civil law is founded on the precepts and determinations of the Korân, as the civil laws of the Jews were on those of the Pentateuch; yet being variously interpreted, according to the different decisions of their civilians, and especially of their four great doctors, Abu Hanîfa, Malec, al Shâfeï, and Ebn Hanbal,7 to treat thereof fully and distinctly in the manner the curiosity and usefulness of the subject deserves, would require a large volume; wherefore the most that can be expected here, is a summary view of the principal institutions, without minutely entering into a detail of particulars. We shall begin with those relating to marriage and divorce. That polygamy, for the moral lawfulness of which the Mohammedan doctors advance several arguments,1 is allowed by the Korân, every one knows, though few are acquainted with the limitations with which it is allowed. Several learned men have fallen into the vulgar mistake that Mahommed granted to his followers an unbounded plurality; some pretending that a man may have as many wives,2 and others as many concubines,3 as he can maintain: whereas, according to the express words of the Korân,4 no man can have more than four, whether wives or concubines;5 and if a man apprehend any inconvenience from even that number of ingenuous wives, it is added, as an advice (which is generally followed by the middling and inferior people),6 that he marry one only, or, if he cannot be contented with one, that he take up with his she-slaves, not exceeding, however, the limited number;7 and this
7 See Sect. VIII. 1 See before, Sect. II., p. 31. 2 Nic.Cusanus, in Cribrat. Alcor. l. 2, c. 19. Olearius, in Itinerar. P. Greg. Thoslosanus, in Synt. Juris, l. 9, c. 2, § 22. Septemcastrensis (de Morib. Turc. p. 24) says the Mohammedans may have twelve lawful wives, and no more. Ricaut falsely asserts the restraint of the number of their wives to be no precept of their religion, but a rule superinduced on a politic consideration. Pres. State of the Ottoman Empire, bk. iii, c. 21. 3 Marracc. in Prodr. ad Refut. Alcor. part iv. p. 52 and 71. Prideaux, Life of Mah. p. 114. Chardin, Voy. de Perse, t. i. p. 166. Du Ryer, Sommaire de la Rel. des Turcs, mis à la tête de sa version de l'Alcor. Ricaut, ubi supra. Pufendorf, de Jure Nat. et Gent. l. 6, c. I, § 18. 4 Cap. 4, p. 53. 5 Vide Gagnier, in Notis and Abulfedæ Vit. Moh. p. 150 Reland. de Rel. Moh. p. 243, &c., and Selden, Ux. Hebr. l. r, c. 9. 6 Vide Reland ubi sup. p. 244. 7 Kor. c. 4, p. 53.
is certainly the utmost Mohammed allowed his followers: nor can we urge as an argument against so plain a precept, the corrupt manners of his followers, many of whom, especially men of quality and fortune, indulge themselves in criminal excesses;8 nor yet the example of the prophet himself, who had peculiar privileges in this and other points, as will be observed hereafter. In making the above-mentioned limitation, Mohammed was directed by the decision of the Jewish doctors, who, by way of counsel, limit the number of wives to four,9 though their law confines them not to any certain number.10 Divorce is also well known to be allowed by the Mohammedan law, as it was by the Mosaic, with this difference only, that, according to the latter, a man could not take again a woman whom he had divorced, and who had been married or betrothed to another;1 whereas Mohammed, to prevent his followers from divorcing their wives on every light occasion, or out of an inconstant humour, ordained that, if a man divorced his wife the third time (for he might divorce her twice without being obliged to part with her, if he repented of what he had done), it should not be lawful for him to take her again until she had been first married and bedded by another, and divorced by such second husband.2 And this precaution has had so good an effect that the Mohammedans are seldom known to proceed to the extremity of divorce, notwithstanding the liberty given them, it being reckoned a great disgrace so to do; and there are but few, besides those who have little or no sense of honour, that will take a wife again on the condition enjoined.3 It must be observed that, though a man is allowed by the Mohammedan, as by the Jewish law,4 to repudiate his wife even on the slightest disgust, yet the women are not allowed to separate themselves from their husbands, unless it be for ill-usage, want of proper maintenance, neglect of conjugal duty, impotency, or some cause of equal import; but then she generally loses her dowry,5 which she does not if divorced by her husband, unless she has been guilty of impudicity or notorious disobedience.6 When a woman is divorced she is obliged, by the direction of the Korân, to wait till she hath had her courses thrice, or, if there be a doubt whether she be subject to them or not, by reason of her age, three months, before she marry another; after which time expired, in case she be found not with child, she is at full liberty to dispose of herself as she pleases; but if she prove with child, she must wait till she be delivered; and during her whole term of waiting she may continue in the husband's house, and is to be maintained at his expense, it being forbidden to turn the woman out before the expiration of the term, unless she be guilty of dishonesty.7 Where a man divorces a woman
8 Sir J. Maundeville (who, excepting a few silly stories he tells from hearsay, deserves more credit than some travellers of better reputation), speaking of the Alcoran, observes, among several other truths, that Mahomet therein commanded a man should have two wives, or three, or four; though the Mahometans then took nine wives, and lemans as many as they might sustain. Maundev. Travels, p. 164. 9 Maimon. in Halachoth Ishoth. c. 14. 10 Idem, ibid. Vide Selden, Uxor. Hebr. l. r, c. 9. 1 Deut. xxiv. 3-4. Jerem. iii. I. Vide Selden, ubi sup. l. r. c. II. 2 Kor. c. 2, p. 24. 3 Vide Selden, ubi sup. l. 3, c. 21, and Ricaut's State of the Ottom. Empire, bk. ii. c. 21. 4 Deut. xxiv I. Leo Modena, Hist. de gli Riti hebr. part i. c. 6. Vide Selden, ubi sup. 5 Vide Busbeq. Ep. 3, p. 184; Smith, de Morib. ac Instit. Turcar. Ep. 2, p. 52; and Chardin, Voy. de Perse, t. I, p. 169. 6 Kor. c. 4, p. 55. 7 Kor. c. 2, p. 24, and c. 65.
before consummation, she is not obliged to wait any particular time,8 nor is he obliged to give her more than one-half of her dower.9 If the divorced woman have a young child, she is to suckle it till it be two years old; the father, in the meantime, maintaining her in all respects: a widow is also obliged to do the same, and to wait four months and ten days before she marry again.1 These rules ar also copied form those of the Jews, according to whom a divorced woman, or a widow, cannot marry another man, till ninety days be past, after the divorce or death of the husband:2 and she who gives suck is to be maintained for two years, to be computed from the birth of the child; within which time she must not marry, unless the child die, or her milk be dried up.3 Whoredom, in single women as well as married, was, in the beginning Mohammedism, very severely punished; such being ordered to be shut up in prison till they died: but afterwards it was ordained by the Sonna, that an adulteress should be stoned,4 and an unmarried woman guilty of fornication scourged with a hundred stripes, and banished for a year.5 A she-slave, if convicted of adultery, is to suffer but half the punishment of a free woman,6 viz., fifty stripes, and banishment for six months; but is not to be put to death. To convict a woman of adultery, so as to make it capital, four witnesses are expressly required,7 and those, as the commentators say, ought to be men: and if a man falsely accuse a woman of reputation of whoredom of any kind, and is not able to support the charge by that number of witnesses, he is to receive fourscore stripes, and his testimony is to be held invalid for the future.8 Fornication, in either sex, is by the sentence of the Korân to be punished with a hundred stripes.9 If a man accuse his wife of infidelity, and is not able to prove it by sufficient evidence, and will swear four times that it is true, and the fifth time imprecate GOD'S vengeance on him if it be false, she is to be looked on as convicted, unless she will take the like oaths, and make the like imprecation, in testimony of her innocency; which is she do, she is free from punishment, though the marriage ought to be dissolved.10 In most of the last-mentioned particulars the decisions of the Korân also agree with those of the Jews. By the law of Moses, adultery, whether in a married women or a virgin betrothed, was punished with death; and the man who debauched them was to suffer the same punishment.1 The penalty of simple fornication was scourging, the
8 Ibid. c. 33. 9 Ibid. c. 2, p. 25. 1 Ibid. c. 2, p. 25, and c. 65. 2 Mishna, tit. Yabimoth, c. 4. Gemar. Babyl. ad eund. tit. Maimon. in Halach. Girushin, Shylhan Aruch, part iii. 3 Mishna, and Gemara, and Maimon. ubi supra. Gem. Babyl. ad tit. Cetuboth, c. 5, and Jos. Karo, in Shylhân Aruch, c. 50, § 2. Vide Selden, Ux. Hebr. l. 2, c. II, and l. 3, c. 10, in fin. 4 And the adulterer also, according to a passage once extant in the Korân, and still in force, as some suppose. See the notes to Kor. c. 3, p. 34, and the Prel. Disc. p. 52. 5 Kor. c. 4, p. 55. See the notes there. 6 Ibid. p. 57. 7 Ibid. p. 55. 8 Ibid. c. 24. 9 Ibid. This law relates not to married people, as Selden supposes; Ux. Heb. l. 3, c. 12. 10 Ibid. p. 288. See the notes there. 1 Levit. xx. 10; Deut. xxii. 22. The kind of death to be inflicted on adulterers, in common cases being not expressed, the Talmudists generally suppose it to be strangling, which they think is designed wherever the phrase "shall be put to death," or "shall die the death," is used, as they imagine stoning is by the expression, "his blood shall be upon him;" and hence it has been concluded by some that the woman taken in adultery mentioned in the Gospel (John viii.) was a betrothed maiden, because such a one and her accomplice were plainly ordered to be stoned (Deut. xxii. 23, 24). But the ancients seem to have been of a different opinion,
general punishment in cases where none is particularly appointed: and a betrothed bondmaid, if convicted of adultery, underwent the same punishment, being exempted from death, because she was not free.2 By the same law no person was to be put to death on the oath of one witness:3 and a man who slandered his wife was also to be chastised, that is scourged, and fined one hundred shekels of silver.4 The method of trying a woman suspected of adultery where evidence was wanting, by forcing her to drink the bitter water of jealousy,5 though disused by the Jews long before the time of Mohammed,6 yet, by reason of the oath of cursing with which the woman was charged, and to which she was obliged to say "Amen," bears great resemblance to the expedient devised by that prophet on the like occasion. The institutions of Mohammed relating to the pollution of women during their courses,7 the taking of slaves to wife,8 and the prohibiting of marriage within certain degrees,9 have likewise no small affinity with the institutions of Moses;10 and the parallel might be carried farther in several other particulars. As to the prohibited degrees, it may be observed, that the pagan Arabs abstained from marrying their mothers, daughters, and aunts both on the father's side and on the mother's, and held it a most scandalous thing to marry two sister, or for a man to take his father's wife;11 which last was, notwithstanding, too frequently practised,12 and is expressly forbidden in the Korân.13 Before I leave the subject of marriages, it may be proper to take notice of some peculiar privileges in relation thereto, which were granted by GOD to Mohammed, as he gave out, exclusive of all other Moslems. One of them was, that he might lawfully marry as many wives and have as many concubines as he pleased, without being confined to any particular number;1 and this he pretended to have been the privilege of the prophets before him. Another was, that he might alter the turns of his wives, and take such of them to his bed as he thought fit, without being tied to that order and equality which others are obliged to observe.2 A third privilege was, that no man might marry any of his wives,3 either such as he should divorce during his lifetime, or such as he should leave widows at his death: which last particular exactly agrees with what the Jewish doctors have determined concerning the wives of their princes; it being judged by them to be a thing very indecent, and for that reason unlawful, for another to marry either the divorced wife or the widow of a king;4 and Mohammed, it seems, thought an equal respect, at least, due to the prophetic as to the regal dignity, and therefore ordered that his relicts should pass the remainder of their lives in perpetual widowhood.
and to have understood stoning to be the punishment of adulterers in general. Vide Selden, Ux. Hebr. l. 3, c. 11 and 12. 2 Levit. xix. 20. 3 Deut. xix. 15, xvii. 6, and Numb. xxxv. 30. 4 Deut. xxii. 13-19. 5 Numb. v. 11, &c. 6 Vide Selden, ubi sup. l. 3, c. 15, and Leon. Modena, de' Riti Hebraici, parte iv. c. 6. 7 Kor. c. 2, p. 23. 8 Ibid. c. 4, p. 53 and 57, &c. 9 Ibid. p. 56 10 See Levit. xv. 24, xviii. 19, and xx. 18; Exod. xxi. 8-11; Deut. xxi. 10-14; Levit. xviii. and xx. 11 Abulfed. Hist. Gen. al Shahrestani, apud Poc. Spec. p. 321 and 338. 12 Vide Poc. ibid. p. 337, &c. 13 Cap. 4, p. 56. 1 Kor. c. 33. See also c. 66, and the notes there. 2 Kor. c. 33. See the notes there. 3 Ibid. 4 Mishna, tit. Sanhedr. c. 2, and Gemar, in eund. tit. Maimon. Halachoth Melachim, c. 2. Vide Selden, Ux. Hebr. l. I, c. 10. Prid. Life of Mah. p. 118.
The laws of the Korân concerning inheritances are also in several respects conformable to those of the Jews, though principally designed to abolish certain practices of the pagan Arabs, who used to treat widows and orphan children with great injustice, frequently denying them any share in the inheritance of their fathers or their husbands, on pretence that the same ought to be distributed among those only who were able to bear arms, and disposing of the widows, even against their consent, as part of their husbands' possessions.5 To prevent such injuries for the future, Mohammed ordered that women should be respected, and orphans have no wrong done them; and in particular that women should not be taken against their wills, as by right of inheritance, but should themselves be entitled to a distributive part of what their parents, husbands, and near relations should leave behind them, in a certain proportion.6 The general rule to be observed in the distribution of the deceased's estate is, that a male shall have twice as much as a female:1 but to this rule there are some few exceptions; a man's parents, for example, and also his brothers and sisters, where they are entitled not to the whole, but a small part of the inheritance, being to have equal shares with one another in the distribution thereof, without making any difference on account of sex.2 The particular proportions, in several cases, distinctly and sufficiently declare the intention of Mohammed; whose decisions expressed in the Korân3 seem to be pretty equitable, preferring a man's children first, and then his nearest relations. If a man dispose of any part of his estate by will, two witnesses, at the least, are required to render the same valid; and such witnesses ought to be of his own tribe, and of the Mohammedan religion, if such can be had.4 Though there be no express law to the contrary, yet the Mohammedan doctors reckon it very wrong for a man to give away any part of his substance from his family, unless it be in legacies for pious uses; and even in that case a man ought not to give all he has in charity, but only a reasonable part in proportion to his substance. On the other hand, though a man make no will, and bequeath nothing for charitable uses, yet the heirs are directed, on the distribution of the estate, if the value will permit, to bestow something on the poor, especially such as are of kin to the deceased, and to the orphans.5 The first law, however, laid down by Mohammed touching inheritances, was not very equitable; for he declared that those who had fled with him from Mecca, and those who had received and assisted him at Medina, should be deemed the nearest of kin, and consequently heirs to one another, preferably to and in exclusion of their relations by blood; nay, though a man were a true believer, yet if he had not fled his country for the sake of religion and joined the prophet, he was to be looked on as a stranger:6 but this law continued not long in force, being quickly abrogated.7 It must be observed that among the Mohammedans the children of their concubines or slaves are esteemed as equally legitimate with those
5 See c. 4, p. 53, 54, and 56, and the notes there. Vide etiam Poc. Spec.p. 337. 6 Kor. c. 4, ubi supra.1 Ibid. p. 54 and 72. Vide Chardin, Voy. de Perse, t. 2, p. 293.2 Kor. ibid. p. 54. 3 Ibid. and p. 72.4 Kor. c. 5, p. 86. 5 Kor. c. 4, p. 54. 6 Cap. 8.7 Ibid. and c. 33
of their legal and ingenuous wives; none being accounted bastards, except such only as are born of common women, and whose fathers are unknown. As to private contracts between man and man, the conscientious performance of them is frequently recommended in the Korân.1 For the preventing of disputes, all contracts are directed to be made before witnesses,2 and in case such contracts are not immediately executed, the same ought to be reduced into writing in the presence of two witnesses3 at least, who ought to be Moslems and of the male sex; but if two men cannot be conveniently had, then one man and two women may suffice. The same method is also directed to be taken for the security of debts to be paid at a future day; and where a writer is not to be found, pledges are to be taken.4 Hence, if people trust one another without writing, witnesses, or pledge, the party on whom the demand is made is always acquitted if he denies the charge on oath, and swears that he owes the plaintiff nothing, unless the contrary be proved by very convincing circumstances.5 Wilful murder, though forbidden by the Korân under the severest penalties to be inflicted in the next life,6 is yet, by the same book, allowed to be compounded for, on payment of a fine to the family of the deceased, and freeing a Moslem from captivity; but it is in the election of the next of kin, or the revenger of blood, as he is called in the Pentateuch, either to accept of such satisfaction, or to refuse it; for he may, if he pleases, insist on having the murderer delivered into his hands, to be put to death in such manner as he shall think fit.7 In this particular Mohammed has gone against the express letter of the Mosaic law, which declare that no satisfaction shall be taken for the life of a murderer;8 and he seems, in so doing, to have had respect to the customs of the Arabs in his time, who, being of a vindictive temper, used to revenge murder in too unmerciful a manner,9 whole tribes frequently engaging in bloody wars on such occasions, the natural consequence of their independency, and having no common judge of superior. If the Mohammedan laws seem light in case of murder, they may perhaps be deemed too rigorous in case of manslaughter, or the killing of a man undesignedly, which must be redeemed by fine (unless the next of kin shall think fit to remit it out of charity), and the freeing of a captive: but if a man be not able to do this, he is to fast two months together, by way of penance.1 The fine for a man's blood is set in the Sonna at a hundred camels,2 and is to be distributed among the relations of the deceased, according to the laws of inheritances; but it must be observed that, though the person slain be a Moslem, yet if he be of a nation or party at enmity, or not in confederacy with those to whom the slayer belongs, he is not then bound to pay any fine at all, the redeeming a captive being, in such case, declared a sufficient penalty.3 I
1 Cap. 5, p. 73; c. 17; c. 2, p. 31, &c. 2 Cap. 2, p. 31. 3 The same seems to have been required by the Jewish law, even in cases where life was not concerned. See Deut. xix. 15, Matth. xviii. 16, John viii. 17, 2 Cor. xiii. I. 4 Kor. c. 2, p. 30, 31. 5 Vide Chardin, Voy. de Perse, t. 2, p. 294, &c., and the notes to Kor. c. 5, p. 86. 6 Kor. c. 4, p. 64. 7 Cap. 2, p. 18, 19; c. 17. Vide Chardin, ubi sup. p. 299, &c. 8 Numb. xxxv. 31. 9 This is particularly forbidden in the Korân, c. 17. 1 Kor. c. 4, p. 64. 2 See the notes to c. 37 3 Kor. c. 4, p. 64.
imagine that Mohammed, by these regulations, laid so heavy a punishment on involuntary manslaughter, not only to make people beware incurring the same, but also to humour, in some degree, the revengeful temper of his countrymen, which might be with difficulty, if at all, prevailed on to accept a lighter satisfaction. Among the Jews, who seem to have been no less addicted to revenge than their neighbours, the manslayer who had escaped to a city of refuge was obliged to keep himself within that city, and to abide there till the death of the person who was high priest at the time the fact was committed, that his absence and time might cool the passion and mitigate the resentment of the friends of the deceased; but if he quitted his asylum before that time, the revenger of blood, if he found him, might kill him without guilt;4 nor could any satisfaction be made for the slayer to return home before the prescribed time.5 Theft is ordered to be punished by cutting off the offending part, the hand,6 which, at first sight, seems just enough; but the law of Justinian, forbidding a thief to be maimed,7 is more reasonable; because, stealing being generally the effect of indigence, to cut off that limb would be to deprive him of the means of getting his livelihood in an honest manner.8 The Sonna forbids the inflicting of this punishment, unless the thing stolen be of a certain value. I have mentioned in another place the further penalties which those incur who continue to steal, and of those who rob or assault people on the road.9 As to injuries done to men in their persons, the law of retaliation, which was ordained by the law of Moses,10 is also approved by the Korân:1 but this law, which seems to have been allowed by Mohammed to his Arabians for the same reasons as it was to the Jews, viz., to prevent particular revenges, to which both nations were extremely addicted,2 being neither strictly just nor practicable in many cases, is seldom put in execution, the punishment being generally turned into a mulct or fine, which is paid to the party injured.3 Or rather Mohammed designed the words of the Korân relating thereto should be understood in the same manner as those of the Pentateuch most probably ought to be; that is, not of an actual retaliation, according to the strict literal meaning, but of a retribution proportionable to the injury: for a criminal had not his eyes put out, nor was a man mutilated, according to the law of Moses, which, besides, condemned those who had wounded any person, where death did not ensue, to pay a fine only,4 the expression "eye for eye and tooth for tooth" being only a proverbial manner of speaking, the sense whereof amounts to this, that every one shall be punished by the judges according to the heinousness of the fact.5 In injuries and crimes of an inferior nature, where no particular punishment is provided by the Korân, and where a pecuniary compensation will not do, the Mohammedans, according to the practice of the
4 See Numb. xxxv. 26, 27, 28. 5 Ibid. v. 32. 6 Kor. c. 5, p. 78. 7 Novell. 134, c. 13. 8 Vide Pufendorf, de Jure Nat. et Gent. l. 8, c. 3, § 26. 9 See the notes to c. 5, p. 78. 10 Exod. xxi. 24, &c., Levit. xxiv. 20, Deut. xix. 21. 1 Cap. 5, p. 79. 2 Vide Grotium , de Jure Belli et Pacis, l. I, c. 2, § 8. 3 Vide Chardin, t. 2, p. 299. The talio, likewise established among the old Romans by the laws of the twelve tables, was not to be inflicted, unless the delinquent could not agree with the person injured. Vide A. Gell. Noct. Attic. l. 20, c. I, and Festum, in voce Talio. 4 See Exod. xxi. 18, 19, and 22. 5 Barbeyrac, in Grot. ubi supra. Vide Cleric. in Exod. xxi. 24, and Deut. xix. 21.
Jews in the like case,6 have recourse to stripes or drubbing, the most common chastisement used in the east at this day, as well as formerly; the cudgel, which for its virtue and efficacy in keeping their people in good order, and within the bounds of duty, they say came down from heaven, being the instrument wherewith the judge's sentence is generally executed.7 Notwithstanding the Korân is by the Mohammedans in general regarded as the fundamental apart of their civil law, and the decisions of the Sonna among the Turks, and of the Imâms among those of the Persian sect, with the explications of their several doctors, are usually followed in judicial determinations, yet the secular tribunals do not think themselves bound to observe the same in all cases, but frequently give judgment against those decisions, which are not always consonant to equity and reason; and therefore distinction is to be made between the written civil law, as administered in the ecclesiastical courts, and the law of nature or common law (if I may so call it) which takes place in the secular courts, and has the executive power on its side.1 Under the head of civil laws may be comprehended the injunction of warring against infidels, which is repeated in several passages of the Korân,2 and declared to be of high merit in the sight of GOD, those who are slain fighting in defence of the faith being reckoned martyrs, and promised immediate admission into paradise.3 Hence this duty is greatly magnified by the Mohammedan divines, who call the sword the key of heaven and hell, and persuade their people that the least drop of blood spilt in the way of GOD, as it is called, is most acceptable unto him, and that the defending the territories of the Moslems for one night is more meritorious than a fast of two months:4 on the other hand, desertion, or refusing to serve in these holy wars, or to contribute towards the carrying them on, if a man has ability, is accounted a most heinous crime, being frequently declaimed against in the Korân.5 Such a doctrine, which Mohammed ventured not to teach till his circumstances enabled him to put it in practice,6 it must be allowed, was well calculated for his purpose, and stood him and his successors in great stead: for what dangers and difficulties may not be despised and overcome by the courage and constancy which these sentiments necessarily inspire? Nor have the Jews and Christians, how much soever they detest such principles in others, been ignorant of the force of enthusiastic heroism, or omitted to spirit up their respective partisans by the like arguments and promises. "Let him who has listed himself in defence of the law," says Maimonides,7 "rely on him who is the hope of Israel, and the saviour thereof in the time of trouble;8 and let him know that he fights for the profession of the divine unity: wherefore let him put his life in his hand,9 and think neither of wife nor children, but banish the memory of them from his heart, having his mind wholly fixed on the war. For if he should begin to waver in his thoughts, he would not only confound himself, but sin against the law;
6 See Deut. xxv. 2, 3. 7 Vide Grelot, Voy. de Constant. p. 220, and Chardin, ubi supra, p. 302. 1 Vide Chardin, ubi supra, p. 290, &c. 2 Cap. 22; c. 2, p. 20; c . 4, p. 62, &c.; c. 8; c. 9; c. 47 and c. 61, &c. 3 Cap. 2, p. 17; c. 3, p. 47; c. 47; c. 61. 4 Reland. de Jure Milit. Moham. p. 5, &c. 5 Vide c. 9; c. 3, p. 47, &c. 6 See before, p. 37. 7 Halach. Melachim, c. 7. 8 Jerem. xiv. 8. 9 Job xiii. 14.
nay, the blood of the whole people hangeth on his neck; for if they are discomfited, and he has not fought stoutly with all his might, it is equally the same as if he had shed the blood of them all; according to that saying, let him return, lest his brethren's heart fail as his own."1 To the same purpose doth the Kabala accommodate that other passage, "Cursed be he who doth the work of the LORD negligently, and cursed be he who keepeth back his sword from blood.2 On the contrary, he who behaveth bravely in battle, to the utmost of his endeavour, without trembling, with intent to glorify GOD'S name, he ought to expect the victory with confidence, and to apprehend no danger or misfortune, but may be assured that he will have a house built him in Israel, appropriated to him and his children for ever; as it is said, GOD shall certainly make my lord a sure house, because he hath fought the battles of the LORD, and his life shall be bound up in the bundle of life with the LORD his GOD."3 More passages of this kind might be produced from the Jewish writers; and the Christians come not far behind them. "We are desirous of knowing," says one4 writing to the Franks engaged in the holy war, "the charity of you all; for that every one (which we speak not because we wish it) who shall faithfully lose his life in this warfare, shall be by no means denied the kingdom of heaven." And another5 gives the following exhortation: "Laying aside all fear and dread, endeavour to act effectually against the enemies of the holy faith, and the adversaries of all religions: for the Almighty knoweth, if any of you die, that he dieth for the truth of the faith, and the salvation of his country, and the defence of Christians; and therefore he shall obtain of him a celestial reward." The Jews, indeed, had a divine commission, extensive and explicit enough, to attack, subdue, and destroy the enemies of their religion; and Mohammed pretended to have received one in favour of himself and his Moslems, in terms equally plain and full; and therefore it is no wonder that they should act consistently with their avowed principles: but that Christians should teach and practise a doctrine so opposite to the temper and whole tenour of the Gospel, seems very strange; and yet the latter have carried matters farther, and shown a more violent spirit of intolerance than either of the former. The laws of war, according to the Mohammedans, have been already so exactly set down by the learned Reland,6 that I need say very little of them. I shall, therefore, only observe some conformity between their military laws and those of the Jews. While Mohammedism was in its infancy, the opposers thereof taken in battle were doomed to death, without mercy; but this was judged too severe to be put in practice when that religion came to be sufficiently established, and past the danger of being subverted by its enemies.1 The same sentence was pronounced not only against the seven Canaanitish nations,2 whose possessions were given to the Israelites, and without whose destruction, in a manner, they could not have settled themselves in the country designed them, but against the
1 Deut. xx. 8. 2 Jerem. xlviii. 10. 3 I Sam. xxv. 28, 29. 4 Nicolaus, in Jure Canon. c. omnium, 23, quæst. 5. 5 Leo IV. ibid. quæst. 8. 6 In his treatise De Jure Militari Mohammedanor. in the third vol. of his Dissertationes Miscellanæe. 1 See Kor. c. 47. and the notes there; and c. 4, p. 64; c. 5, p. 77. 2 Deut. xx. 16-18.
Amalekites3 and Midianites,4 who had done their utmost to cut them off in their passage thither. When the Mohammedans declare war against people of a different faith, they give them their choice of three offers, viz., either to embrace Mohammedism, in which case they become not only secure in their persons, families, and fortunes, but entitled to all the privileges of other Moslems; or to submit and pay tribute,5 by doing which they are allowed to profess their own religion, provided it be not gross idolatry or against the moral law; or else to decide the quarrel by the sword, in which last case, if the Moslems prevail, the women and children which are made captives become absolute slaves, and the men taken in the battle may either be slain, unless they turn Mohammedans, or otherwise disposed of at the pleasure of the prince.6 Herewith agree the laws of war given to the Jews, which relate to the nations not devoted to destruction;7 and Joshua is said to have sent even to the inhabitants of Canaan, before he entered the land, three schedules, in one of which was written, "Let him fly, who will;" in the second, "Let him who surrender, who will;" and in the third, "Let him fight, who will;"8 though none of those nations made peace with the Israelites (except only the Gibeonites, who obtained terms of security by stratagem, after they had refused those offered by Joshua), "it being of the LORD to harden their hearts, that he might destroy them utterly."9 On the first considerable success of Mohammed in war, the dispute which happened among his followers in relation to the dividing of the spoil, rendered it necessary for him to make some regulation therein; he therefore pretended to have received the divine commission to distribute the spoil among his soldiers at his own discretion,1 reserving thereout, in the first place, one-fifth part2 for the uses after mentioned; and, in consequence hereof, he took himself to be authorized on extraordinary occasions, to distribute it as he thought fit, without observing an equality. Thus he did, for example, with the spoil of the tribe of Hawâzen taken at the battle of Honein, which he bestowed by way of presents on the Meccans only, passing by those of Medina, and highly distinguishing the principal Korashites, that he might ingratiate himself with them, after he had become master of their city.3 He was also allowed in the expedition against those of al Nadîr to take the whole booty to himself, and to dispose thereof as he pleased, because no horses or camels were made use of in that expedition,4 but the whole army went on foot; and this became thenceforward a law:5 the reason of which seems to be, that the spoil taken by a party consisting of infantry
3 Ibid. c. xxv. 17-19. 4 Numb. xxxi. 17. 5 See c. 9, and the notes there. 6 See the notes to c. 47. 7 Deut. xx. 10-15. 8 Talmud Hierosol. apud Maimonid. Halach. Melachim, c. 6, § 5. R. Bechai, ex. lib. Siphre. Vide Selden, de Jure Nat. et Gent. Sec. Hebr. l. 6, c. 13 and 14; and Schickardi Jus Regium Hebr. c. 5, Theor. 16. 9 Josh. xi. 20. The Jews, however, say that the Girgashites, believing they could not escape the destruction with which they were threatened by GOD, if they persisted to defend themselves, fled into Africa in great numbers. (Vide Talm. Hieros. ubi sup.) And this is assigned as the reason why the Girgashites are not mentioned among the other Canaanitish nations who assembled to fight against Joshua (Josh. ix. I0, and who were doomed to utter extirpation (Deut. xx. 17). But it is observable, that the Girgashites are not omitted by the Septuagint in either of those texts, and that their name appears in the latter of them in the Samaritan Pentateuch: they are also joined with the other Canaanites as having fought against Israel, in Josh. xxiv. II. 1 Kor. c. 8. 2 Ibid. 3 Abulfed. in Vit. Moh. p. 118, &c. Vide Kor. c. 9. and the notes there. 4 Kor. c. 59, see the notes there. 5 Vide Abulfed. ubi sup. p. 91.
only, should be considered as the more immediate gift of GOD,6 and therefore properly left to the disposition of his apostle. According to the Jews, the spoil ought to be divided into two equal parts, one to be shared among the captors, and the other to be taken by the prince,7 and by him employed for his own support and the use of the public. Moses, it is true, divided one-half of the plunder of the Midianites among those who went to battle, and the other half among all congregation:8 but this, they say, being a peculiar case, and done by the express order of GOD himself, must not be looked on as a precedent.9 It should seem, however, from the words of Joshua to the two tribes and a half, when he sent them home into Gilead after the conquest and division of the land of Canaan , that they were to divide the spoil of their enemies with their brethren, after their return:10 and the half which was in succeeding times taken by the king, was in all probability taken by him as head of the community, and representing the whole body. It is remarkable that the dispute among Mohammed's men about sharing the booty at Bedr,11 arose on the same occasion as did that among David's soldiers in relation to the spoils recovered from the Amalekites;1 those who had been in the action insisting that they who tarried by the stuff should have no part of the spoil; and that the same decision was given in both cases, which became a law for the future, to wit, that they should part alike. The fifth part directed by the Korân to be taken out of the spoil before it be divided among the captors, is declared to belong to GOD, and to the apostle and his kindred, and the orphans, and the poor, and the traveller:2 which words are variously understood. al Shâfeï was of opinion that the whole ought to be divided into five parts; the first, which he called GOD'S part, to go to the treasury, and be employed in building and repairing fortresses, bridges, and other public works, and in paying salaries to magistrates, civil officers, professors of learning, ministers of public worship, &c.: the second part to be distributed among the kindred of Mohammed, that is, the descendants of his grandfather Hâshem, and of his great-uncle al Motalleb,3 as well the rich as the poor, the children as the adult, the women as the men; observing only to give a female but half the share of a male: the third part to go to the orphans: the fourth part to the poor, who have not wherewithal to maintain themselves the year round, and are not able to get their livelihood: and the fifth part to travellers, who are in want on the road, notwithstanding they may be rich men in their own country.4 According to Malec Ebn Ans the whole is at the disposition of the Imâm or prince, who may distribute the same at his own discretion, where he sees most need.5 Abu'l Aliya wen according to the letter of the Korân, and declared his opinion to be that the whole should be divided into six parts, and that GOD'S part should be applied to the service of the Caaba: while others supposed GOD'S part and the apostle's to be one and the same.6 Abu Hanîfa thought that the share of Mohammed and his kindred sank at that prophet's death, since which the whole
6 Vide Kor. c. 59, ubi supra. 7 Gemar. Babyl. ad tit. Sanhedr. c. 2. Vide Selden, de Jure Nat. et Gent. Sec. Hebr. lib. 6, c. 16. 8 Numb. xxxi. 27. 9 Vide Maim. Halach, Melach. c. 4. 10 Josh. xxii. 8. 11 See Kor. c. 8., and the notes there. 1 I Sam. xxx. 21-25. 2 Kor. c. 8. 3 Note, al Shâfeï himself was descended from this latter. 4 Al Beid. Vide Reland. de Jure Milit. Moham. p. 42, &c. 5 Idem. 6 Idem.
ought to be divided among the orphans, the poor, and the traveller.7 Some insist that the kindred of Mohammed entitled to a shire of the spoils are the posterity of Hâshem only; but those who think the descendants of his brother al Motalleb have also a right to a distributive part, allege a tradition in their favour purporting that Mohammed himself divided the share belonging to his relations among both families, and when Othmân Ebn Assân and Jobeir Ebn Matám (who were descended from Abdshams and Nawfal the other brothers of Hâshem) told him, that though they disputed not the preference of the Hâshemites, they could not help taking it ill to see such difference made between the family of al Motalleb and themselves, who were related to him in an equal degree, and yet had no part in the distribution, the prophet replied that the descendants of al Motalleb had forsaken him neither in the time of ignorance, nor since the revelation of Islâm; and joined his fingers together in token of the strict union between them and the Hâshemites.8 Some exclude none of the tribe of Koreish from receiving a part in the division of the spoil, and make no distinction between the poor and the rich; though, according to the more reasonable opinion, such of them as are poor only are intended by the text of the Korân, as is agreed in the case of the stranger: and others go so far as to assert that the whole fifth commanded to be reserved belongs to them only, and that the orphans, and the poor, and the traveller, are to be understood of such as are of that tribe.9 It must be observed that immovable possessions, as lands, &c., taken in war, are subject to the same laws as the movable; excepting only that the fifth part of the former is not actually divided, but the income and profits thereof, or of the price thereof, if sold, are applied to public and pious uses, and distributed once a year, and that the prince may either take the fifth part of the land itself, or the fifth part of the income and produce of the whole, as he shall make his election.
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IT was a custom among the ancient Arabs to observe four months in the year as sacred, during which they held it unlawful to wage war, and took off the heads from their spears, ceasing from incursions and other hostilities. During those months whoever was in fear of his enemy lived in full security; so that if a man met the murderer of his
7 Idem. 8 Idem. 9 Idem.
father or his brother, he durst not offer him any violence:1 A great argument," says a learned writer, "of a humane disposition in that nation; who being by reason of the independent governments of their several tribes, and for the preservation of their just rights, exposed to frequent quarrels with one another, had yet learned to cool their inflamed breasts with moderation, and restrain the rage of war by stated times of truce."2 This institution obtained among all the Arabian tribes, except only those of Tay and Khatháam, and some of the descendants of Al Hareth Ebn Caab (who distinguished no time or place as sacred),3 and was so religiously observed, that there are but few instances in history (four, say some, six, say others),4 of its having been transgressed; the wars which were carried on without regard thereto being therefore termed impious. One of those instances was in the war between the tribes of Koreish and Kais Ailân, wherein Mohammed himself served under his uncles, being then fourteen,5 or, as others say, twenty6 years old. The months which the Arabs held sacred were al Moharram, Rajeb. Dhu'lkaada, and Dhu'lhajja; the first, the seventh, the eleventh, and the twelfth in the year.7 Dhu'lhajja being the month wherein they performed the pilgrimage to Mecca, not only that month, but also the preceding and the following, were for that reason kept inviolable, that every one might safely and without interruption pass and repass to and from the festival.8 Rajeb is said to have been more strictly observed than any of the other three,9 probably because in that month the pagan Arabs used to fast;10 Ramadân, which was afterwards set apart by Mohammed for that purpose, being in the time of ignorance dedicated to drinking in excess.11 By reason of the profound peace and security enjoyed in this month, one part of the provisions brought by the caravans of purveyors annually set out by the Koreish for the supply of Mecca,12 was distributed among the people; the other part being, for the like reason, distributed at the pilgrimage.1 The observance of the aforesaid months seemed so reasonable to Mohammed, that it met with his approbation; and the same is accordingly confirmed and enforced by several passages of the Korân,2 which forbid war to be waged during those months against such as acknowledge them to be sacred, but grant, at the same time, full permission to attack those who make no such distinction, in the sacred months as well as in the profane.3 One practice, however, of the pagan Arabs, in relation to these sacred
1 Al Kazwîni, apud Golium in notis ad Alfrag. p. 4, &c. Al Shahrestani, apud Poc. Spec. p. 311. Al Jawhari, al Firauzab. 2 Golius, ubi supra, p. 5. 3 Al Shahrestani, ubi supra. See before, p. 95. 4 Al Mogholtaï. 5 Abulfeda, Vit. Moh. p. II. 6 al Kodâï, al Firauz. apud Poc. Spec. p. 174. Al Mogholtaï mentions both opinions. 7 Mr. Bayle (Dict. Hist. et Crit. Art. la Mecque, Rem. F.) accuses Dr. Prideaux of an inconsistency for saying in one place (Life of Mahomet, p. 64) that these sacred months were the first, the seventh, the eleventh, and the twelfth, and intimating in another place (ibid. p. 89) that three of them were contiguous. But this must be mere absence of mind in Mr Bayle; for are not the eleventh, the twelfth, and the first months contiguous? The two learned professors, Golius and Reland, have also made a small slip in speaking of these sacred months, which, they tell us, are the two first and the two last in the year. Vide Golii Lex. Arab. col. 601, and Reland. de Jure Milit. Mohammed anor. p. 5. 8 Vide Gol. in Alfrag. p. 9. 9 Vide ibid. p. 6. 10 Al Makrîzi, apud Poc ubi supra. 11 Idem, and Auctor Neshk al Azhâr, ibid. 12 See Kor. c. 106. 1 A. Edrîsi apud Poc. Specim. p. 127. 2 Cap. 9; c. 2, p. 20; c. 5, p. 73; c. 5, p. 85, &c. 3 Cap. 9; c. 2, p. 20.
months, Mohammed thought proper to reform: for some of them, weary of sitting quiet for three months together, and eager to make their accustomed incursions for plunder, used, by way of expedient, whenever it suited their inclinations or conveniency, to put off the observing of al Moharram to the following month Safar,4 thereby avoiding to keep the former, which they supposed it lawful for them to profane, provided they sanctified another month in lieu of it, and gave public notice thereof at the preceding pilgrimage. This transferring the observation of a sacred month to a profane month, is what is truly meant by the Arabic word al Nasî, and is absolutely condemned, and declared to be an impious innovation, in a passage of the Korân5 which Dr. Prideaux,6 misled by Golius,7 imagines to relate to the prolonging of the year, by adding an intercalary month thereto. It is true, the Arabs, who imitated the Jews in their manner of computing by lunar years, had also learned their method of reducing them to solar years, by intercalating a month sometimes in the third, and sometimes in the second year;8 by which means they fixed the pilgrimage of Mecca (contrary to the original institution) to a certain season of the year, viz., to autumn, as most convenient for the pilgrims, by reason of the temperateness of the weather, and the plenty of provisions;9 and it is also true that Mohammed forbade such intercalation by a passage in the same chapter of the Korân; but then it is not the passage above mentioned, which prohibits a different thing, but one a little before it, wherein the number of months in the year, according to the ordinance of GOD, is declared to be twelve;10 whereas, if the intercalation of a month were allowed, every third or second year would consist of thirteen, contrary to GOD'S appointment. The setting apart of one day in the week for the more peculiar attendance on GOD'S worship, so strictly required by the Jewish and Christian religions, appeared to Mohammed to be so proper an institution, that he could not but imitate the professors thereof in that particular; though, for the sake of distinction, he might think himself obliged to order his followers to observe a different day form either. Several reasons are given why the sixth day of the week was pitched on for this purpose;1 but Mohammed seems to have preferred that day chiefly because it was the day on which the people used to be assembled long before his time,2 though such assemblies were had, perhaps, rather on a civil than a religious account. However it be, the Mohammedan writers bestow very extraordinary encomiums on this day, calling it the prince of day, and the most excellent day on which the sun rises;3 pretending also that it will be the day whereon the last judgment will be solemnized;4 and they esteem it a peculiar honour to Islâm, that GOD has been pleased to appoint this day to be the feast-day of the Moslems, and granted them the advantage of having first observed it.5 Though the Mohammedans do not think themselves bound to keep their day of public worship so holy as the Jews and Christians are cer-
4 See the notes to c. 9, ubi sup. 5 Cap. 9, ibid. 6 Life of Mah. p. 66. 7 In Alfrag. p. 12. 8 See Prid. Preface to the first vol. of his Connect. p. vi., &c. 9 Vide Gol. ubi supra. 10 Kor. c. 9. See also c. 2, . 20. 1 See c. 63, and the notes there. 2 Al Beidâwi. 3 Ebn al Athîr et al Ghazâli, apud Poc. Spec. p. 317. 4 Vide Ibid. 5 Al Ghazâli, ibid.
tainly obliged to keep theirs, there being a permission, as is generally supposed, in the Korân,6 allowing them to return to their employments or diversion after divine service is over; yet the more devout disapprove the applying of any part of that day to worldly affairs, and require it to be wholly dedicated to the business of the life to come.7 Since I have mentioned the Mohammedan weekly feast, I beg leave just to take notice of their two Beirâms,8 or principal annual feasts. The first of them is called, in Arabic, Id al fetr, i.e., The feast of breaking the fast, and begins the first of Shawâl, immediately succeeding the fast of Ramadân; and the other is called Id al korbân, or Id al adhâ, i.e., The feast of the sacrifice, and begins on the tenth of Dhu'lhajja, when the victims are slain at the pilgrimage of Mecca.9 The former of these feasts is properly the lesser Beirâm, and the latter, the greater Beirâm:1 but the vulgar, and most authors who have written of the Mohammedan affairs,2 exchange the epithets, and call that which follows Ramadân the greater Beirâm, because it is observed in an extraordinary manner, and kept for three days together at Constantinople and in other parts of Turkey, and in Persia for five or six days, by the common people, at least, with great demonstrations of public joy, to make themselves amends, as it were, for the mortification of the preceding month;3 whereas, the feast of sacrifices, though it be also kept for three days, and the first of them be the most solemn day of the pilgrimage, the principal act of devotion among the Mohammedans is taken much less notice of by the generality of people, who are not struck therewith, because the ceremonies with which the same is observed are performed at Mecca, the only scene of that solemnity.
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BEFORE we take a view of the sects of the Mohammedans, it will be necessary to say something of the two sciences by which all disputed questions among them are determined, viz., their Scholastic and Practical Divinity. Their scholastic divinity is a mongrel science, consisting of logical, metaphysical, theological, and philosophical disquisitions, and built on
6 Cap. 63, ubi supra. 7 Al Ghazâli, ubi sup. p. 318. 8 The word Beirâm is Turkish, and properly signifies a feast-day or holiday. 9 See c. 9, and before, Sect. IV. p. 94. 1 Vide Reland. de Relig. Moh. p. 109, and D'Herbel. Bibl. Orient. Art. Beirâm. 2 Hyde, in notis ad Bobov. p. 16; Chardin, Voy. de Perse, tom. ii. p. 450; Ricaut's State of the Ottoman Empire, l. 2. c. 24, &c. 3 Vide Chardin and Ricaut, ubi supra.
principles and methods of reasoning very different from what are used by those who pass among the Mohammedans themselves for the sounder divines or more able philosophers,1 and, therefore, in the partition of the sciences this is generally left out, as unworthy a place among them.2 The learned Maimonides3 has laboured to expose the principles and systems of the scholastic divines, as frequently repugnant to the nature of the world and the order of the creation, and intolerably absurd. This art of handling religious disputes was not known in the infancy of Mohammedism, but was brought in when sects sprang up, and articles of religion began to be called in question, and was at first made use of to defend the truth o those articles against innovators;1 and while it keeps within those bounds is allowed to be a commendable study, being necessary for the defence of the faith: but when it proceeds farther, out of an itch of disputation, it is judged worthy of censure. This is the opinion of al Ghazâli,2 who observes a medium between those who have too high a value for this science, and those who absolutely reject it. Among the latter was al Shâfeï, who declared that, in his judgment, if any man employed his time that way, he deserved to be fixed to a stake, and carried about through all the Arab tribes, with the following proclamation to be made before him: 'This is the reward of him who, leaving the Korân and the Sonna, applied himself to the study of scholastic divinity."3 Al Ghazâli, on the other hand, thinks that as it was introduced by the invasion of heresies, it is necessary to be retained in order to quell them: but then in the person who studies this science he requires three things, diligence, acuteness of judgment, and probity of manners; and is by no means for suffering the same to be publicly explained.4 This science, therefore, among the Mohammedans, is the art of controversy, by which they discuss points of faith concerning the essence and attributes of GOD, and the conditions of all possible things, either in respect to their creation, or final restoration, according to the rules of the religion of Islâm.5 The other science is practical divinity or jurisprudence, and is the knowledge of the decisions of the law which regard practice, gathered from distinct proofs. Al Ghazâli declares that he had much the same opinion of this science as of the former, its original being owing to the corruption of religion and morality; and therefore judged both sciences to be necessary, not in themselves, but by accident only, to curb the irregular imaginations and passions of mankind (as guards become necessary in the highways by reason of robbers), the end of the first being the suppressing of heresies, and of the other the decision of legal controversies, for the quiet and peaceable living of mankind in this world, and for the preserving the rule by which the magistrate may prevent one man from injuring another, by declaring what is lawful and what is unlawful, by determining the satisfaction to be given, or punishment to be
1 Poc. Spec. p. 196. 2 Apud Ebn Sina, in Libello de Divisione Scientiar, et Nasiro'ddin al Tûsi, in Præfat. ad Ethic. 3 More Nevoch. l. I, c. 71 and 73. 1 Al Ghazâli, apud Poc. ubi supra. 2 Ibid. 3 Vide Poc. ibid. p. 197. 4 Al Ghazâli, ibid. 5 Ebn al Kossá apud eund. ibid. p. 198.
inflicted, and by regulating other outward actions; and not only so, but to decide of religion itself, and its conditions, so far as relates to the profession made by the mouth, it not being the business of the civilian to inquire into the heart:1 the depravity of men's manners, however, has made this knowledge of the laws so very requisite, that it is usually called the Science, by way of excellence, nor is any man reckoned learned who has not applied himself thereto.2 The points of faith, subject to the examination and discussion of the scholastic divines, are reduced to four general heads, which they call the four bases, or great fundamental articles.3 The first basis relates to the attributes of GOD, and his unity consistent therewith. Under this head are comprehended the questions concerning the eternal attributes, which are asserted by some, and denied by others; and also the explication of the essential attributes, and attributes of action; what is proper for GOD to do, and what may be affirmed of him, and what it is impossible for him to do. These things are controverted between the Ashárians, the Kerâmians, the Mojassemians or Corporalists, and the Mótazalites.4 The second basis regards predestination, and the justice thereof: which comprises the questions concerning GOD'S purpose and decree, man's compulsion or necessity to act, and his co-operation in producing actions, by which he may gain to himself good or evil; and also those which concern GOD'S willing good and evil, and what things are subject to his power, and what to his knowledge; some maintaining the affirmative, and others the negative. These points are disputed among the Kadarians, the Najarians, the Jabarians, the Ashárians, and the Kerâmians.5 The third basis concerns the promises and threats, the precise acceptation of names used in divinity, and the divine decisions; and comprehends questions relating to faith, repentance, promises, threats, forbearance, infidelity, and error. The controversies under this head are on foot between the Morgians, the Waïdians, the Mótazalites, the Ashárians, and the Kerâmians.1 The fourth basis regards history and reason, that is, the just weight they ought to have in matters belonging to faith and religion; and also the mission of prophets, and the office of Imâm, or chief pontiff. Under this head are comprised all casuistical questions relating to the moral beauty or turpitude of actions; inquiring whether things are allowed or forbidden by reason of their own nature, or by the positive law; and also questions concerning the preference of actions, the favour or grace of GOD, the innocence which ought to attend the prophetical office, and the conditions requisite in the office of Imâm; some asserting it depends on right of succession, others on the consent of the faithful; and also the method of transferring it with the former, and of confirming it with the latter. These matters are the subjects of dispute between the Shiites, the Mótazalites, the Kerâmians, and the Ashárians.2 The different sects of Mohammedans may be distinguished into two
1 Al Ghazâli. Vide ibid. p. 198-204. 2 Vide ibid. p. 204. 3 Vide Abulfarag, Hist. Dynast. p. 166. 4 Al Shahrestani, apud Poc. ubi. sup. p. 204, &c. 5 Idem, ibid. p.205. 1 Idem, ibid. p. 206. 2 Idem, ibid.
sorts; those generally esteemed orthodox, and those which are esteemed heretical. The former, by a general name, are called Sonnites or Traditionists; because they acknowledge the authority of the Sonna, or collection of moral traditions of the sayings and actions of their prophet, which is a sort of supplement to the Korân, directing the observance of several things omitted in that book, and in name, as well as design, answering to the Mishna of the Jews.3 The Sonnites are subdivided into four chief sects, which, notwithstanding some differences as to legal conclusions in their interpretation of the Korân, and matters of practice, are generally acknowledge to be orthodox in radicals, or matters of faith, and capable of salvation, and have each of them their several stations or oratories in the temple of Mecca.4 The founders of these sects are looked upon as the great masters of jurisprudence, and are said to have been men of great devotion and self-denial, well versed in the knowledge of those things which belong to the next life and to man's right conduct here, and directing all their knowledge to the glory of GOD. This is al Ghazâli's encomium of them, who thinks it derogatory to their honour that their names should be used by those who, neglecting to imitate the other virtues which make up their character, apply themselves only to attain their skill, and follow their opinions in matters of legal practice.1 The first of the four orthodox sects is that of the Hanefites, so named from their founder, Abu Hanîfa al Nómân Ebn Thâbet, who was born at Cufa, in the 80th year of the Hejra, and died in the 150th, according to the more preferable opinion as to the time.2 He ended his life in prison at Baghdâd, where he had been confined because he refused to be made Kâdi or judge;3 on which account he was very hardly dealt with by his superiors, yet could not be prevailed on, either by threats or ill-treatment, to undertake the charge, "choosing rather to be punished by them than by GOD," says Al Ghazâli; who adds, that when he excused himself from accepting the office by alleging that he was unfit for it, being asked the reason, he replied, "If I speak the truth, I am unfit; but if I tell a lie, a liar is not fit to be a judge." It is said that he read the Korân in the prison where he died, no less than 7,000 times.4 The Hanefites are called by an Arabian writer5 the followers of reason, and those of the three other sects, followers of tradition; the former being principally guided by their own judgment in their decisions, and the latter adhering more tenaciously to the traditions of Mohammed. The sect of Abu Hanîfa heretofore obtained chiefly in Irâk,6 but now generally prevails among the Turks and Tartars: his doctrine was brought into great credit by Abu Yûsof, chief justice under the Khalîfs al Hâdi and Harûn al Rashîd.7