THE Muhammadan civil law is founded on the precepts and determinations of the Quran, 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 Hanifa, Malik, al Shafai, and Ibn Hanbal,1 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.

Laws regulating polygamy

That polygamy, for the moral lawfulness of which the Muhammadan doctors advance several arguments,2 is allowed by the Quran, 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 Muhammad granted to his followers an unbounded plurality; some pretending that a man may have as many wives,3 and others as many concubines,4 as he can main-

1 See Sect. VIII.

2 ee ante, Sect. II., p.72.

3 Nic. Cusanua, in Cribrat. Alcor., I. 2, c. 19. Olearius, in Itinerar. P. Greg. Tholosanus, in Synt. Juris, l. 9, C. 2, § 22. Septemcastrensis (De Morib. Turc., p.4) says the Muhammadans 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.

4 Marracc. in Prodr. ad Refut. Alcor., part iv. pp. 52 and 71. Prideaux, Life of Mah., p. 114.


tain: whereas, according to the express words of the Quran,1 no man can have more than four, whether wives or concubines;2* 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),3 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;4 and this is certainly the utmost Muhammad 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;5 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, Muhammad was directed by the decision of the Jewish

*Muir (Life of Mahomet, vol. iii. p.303) says, "There is no limit, as supposed by Sale, to the number of slave-girls, with whom (irrespective of his four wives) a Moslem may, without any antecedent ceremony or any guarantee of continuance, cohabit. Female slavery, being a condition necessary to the legality of this illimitable indulgence, will never be put down, with a willing or hearty co-operation, by any Mussalman community." E.M.W.

** Surely the "peculiar privileges" of the prophet, whereby all limit as to the number of his wives and concubines was set aside, added to his example, wherein he appeared as the possessor of ten wives besides his concubines, must have gone far to weaken the

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., 1.6, C. 1, § 18.

1 Cap. 4, v.3.

2 Vide Gagnier, in Notis ad Abulfedæ Vit. Moh., p. 150. Reland, De Rel. Moh., p.243, &C and Selden, Ux. Hebr., l. I, C. 9.

3 Vide Reland, ubi sup., p.244.

4 Quran, c. 4, V. 3.

5 Sir J. Mandeville (who, excepting a few silly stories he tells from hearsay, deserves more credit than some travellers of better reputation), speaking of the Quran, serves, among several other truths, that Muhammad therein commanded a man should have two wives, or three, or four; though the Muhammadans then took nine wives, and lemans as many as they might sustain Mandev. Travels, p.164.


doctors, who, by way of counsel, limit the number of wives to four,1 though their law confines them not to any certain number.2

Law concerning divorce

Divorce is also well known to be allowed by the Muhammadan 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;3 whereas Muhammad, 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.4 And this precaution has had so good an effect that the Muhammadans 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.5 * It must be observed that, though

force of his explicit precepts, given for the guidance of his followers. Would not the holy precepts of Jesus, as recorded in the Sermon on the Mount, have lost much of their power over Christian hearts, had he claimed for himself the special privilege of total exemption from them, and, more so, bad his example illustrated a lower grade of moral rectitude? E.M.W.

* The large dowry, fixed on the bride by the groom before the marriage is consummated, to be paid in case of a divorce without proper cause, is more potent than the Quran in preventing divorce. E. M. W.

1 Maimon, in Halachoth Ishoth., c. 14.

2 Idem, ibid. Vide Selden, Uxor. Hebr., l. I, C. 9.

3 Deut. xxiv. 3, 4. Jerem. iii. 1. Vide Selden, ubi sup., l. I, c. II.

4 Quran, c. 2, v. 230.

5 Vide Selden, ubi sup., 1. 3, c. 21, and Ricaut's State of the Ottom. Empire, bk. ii. 0.21.


a man is allowed by the Muhammadan, as by the Jewish law1, 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,2 which she does not if divorced by her husband, unless she has been guilty of impudicity or notorious disobedience.3

When a woman is divorced, she is obliged, by the direction of the Quran, 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.4 Where a man divorces a woman before consummation, she is not obliged to wait any particular time,5 nor is he obliged to give her more than one-half of her dower.6 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.7

These rules are also copied from those of the Jews, according to whom a divorced woman or a widow cannot marry another man till ninety days be past, after the

1 Deut. xxiv. I. Leo Modena, Hist. de gli Riti Hebr., part i C. 6. Vide Selden, ubi sup.

2 Vide Busbeq., Ep. 3, p. 184; Smith, De Morib., ac Instit. Turcar., Ep. 2, p.52; and Chardin, Voy. de Perse, t. 1, p. 169.

3 Quran, c. 4, v. 18, &c.

4 Quran, c. 2, v. 228, and c. 65, v. I, &c.

5 Ibid., c.33, v.48.

6 Ibid. c. 2, v. 237.

7 Ibid., c. 2, vv. 233-235, and c. 65, v. I, &c.


divorce or death of the husband;1 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.2

Laws concerning adultery and fornication.

Whoredom, in single women as well as married, was, in the beginning of Muhammadism, very severely punished, such being ordered to be shut up in prison till they died; but afterwards it was ordained by the Sunnat that an adulteress should be stoned,3 and an unmarried woman guilty of fornication scourged with a hundred stripes and banished for a year.4 A she-slave, if convicted of adultery, is to suffer but half the punishment of a free woman,5 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,6 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 four-score stripes, and his testimony is to be held invalid for the future.7 Fornication, in either sex, is by the sentence of the Quran to be punished with a hundred stripes.8

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

1 Mishna, tit. Yabimoth, C. 4. Gemar. Babyl. ad eund. tit. Maimon. in Halach. Girushin, Shylhan Aruch, part iii.

2 Mishna, Gemara, and Maimon., ubi supra. Gem. Babyl. ad tit. Cetuboth, c.5, and Jos. Karo, in Shylhan Aruch, c. 50, § 2. Vide Selden, Ux. Hebr., l. 2, c.11, and l, 3, C., c .10, in fin.

3 And the adulterer also, according to a passage once extant in the Quran, and still in force, as some suppose. See the notes to Quran c.3, V.23, and the Prel. Disc., p. 111.

4 Quran, c.4, vs. 14, 15. See the, notes there.

5 Ibid., V. 24.

6 Ibid., c. 4, V.14.

7 Ibid., c. 24, V.4.

8 Ibid., vs., 1-3. This law relates not to married people, as Selden the supposes, Ux. Heb.,1. 3, C. 12.


imprecation in testimony of her innocency; which if she do, she is free from punishment, though the marriage ought to be dissolved.1

What the law of the Quran owes to Judaism

In most of the last-mentioned particulars the decisions of the Quran also agree with those of the Jews. By the law of Moses, adultery, whether in a married woman or a virgin betrothed, was punished with death; and the man who debauched them was to suffer the same punishment.2 The penalty of simple fornication was scourging, the 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.3 By the same law no person was to be put to death on the oath of one witness;4 and a man who slandered his wife was also to be chastised, that is, scourged, and fined one hundred shekels of silver.5 The method of trying a woman suspected of adultery where evidence was wanting, by forcing her to drink the bitter water of jealousy,6 though disused by the Jews long before the time of Muhammad,7 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 the prophet on the like occasion.

The institutions of Muhammad relating to the pollution

1 Quran, C. 24, VV. 6-9. See the notes there.

2 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, and to have understood stoning to be the punishment of adulterers in general. Vide Selden, Ux. Heb., 1.3, c. 11 and 12.

3 Levit. xix. 20.

4 Deut. xix. 15, xvii. 6, and Numb. xxxv. 30.

5 Deut. xxii. 13-19.

6 Numb. v.11, &c.

7 Vide Selden, ubi sup, 1.3, C. I 5; and Leon. Modeaa, de' Riti Hebraici, parte iv. C. 6.


of women during their courses,1 the taking of slaves to wife,2 and the prohibiting of marriage within certain degrees,3 have likewise no small affinity with the institutions of Moses;4 and the parallel might be carried farther in several other particulars.

Prohibited degrees

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 sisters, or for a man to take his father's wife;5 which last was, notwithstanding, too frequently practised,6 and is expressly forbidden in the Quran.7

Peculiar privileges of Muhammad as to marriage.

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 Muhammad, as he gave out, exclusive of all other Muslims. 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;8 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, with-out being tied to that order and equality which others are obliged to observe.9 A third privilege was that no man might marry any of his wives,10 either such as he should divorce during his lifetime, or such as he should leave widows at his death; which last particular exactly agrees

* They, however, did permit a son to inherit his deceased father's widows, which custom Muhammad abolished. See Muir's Life of Mahomet vol. ii. p.52, and vol. iii. p.303. E.M. W.

1 Quran, c. 2, v. 222.

2 Ibid., c. 4, v.24, &c.

3 Ibid., vs. 20-22.

4 See Levit. xv. 24, xviii. 19, and xx: 18; Exod. xxi. 8-11; Deut. xxi. 10-14; Levit. xviii. and xx.

5 Abulfed., Hist. Gen. al Sharistani apud Poc. Spoc., pp.321, 338.

6 Vide Poc. Spec., P.337, &C.

7 Quran, c. 4, V.20.

8 Ibid., c. 33, V.49. See also c. 66, and the notes there.

9 Ibid., c. 33, V. 51. See the notes there.

10 Ibid., v.53.


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 1 and Muhammad, 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.

Laws concerning inheritance.

The laws of the Quran 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 husband's possessions.2 To prevent such injuries for the future, Muhammad 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.3

The general rule to be observed in the distribution of the deceased's estate is, that a male shall have twice as much as the female;4 but to this rule there are some few exceptions a man's parents, for example, and also his brother's 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,

1 Mishna, tit. Sanhedr., C. 2, and Gemar. in eund. tit. Maimon. Halachoth Melachim, C. 2. Vide Selden, Ux. Heb., 1. 1, C. 10., Prid., Life of Mah., p. 118.

2 See C. 4, vs. 21, &c. and the notes there. Vide etiam Poc. Spec., p. 337.

3 Quran, C. 4, vs. 31, 32.

4 Ibid., vs. 10 and 175. Vide Chardin, Voy. de Perse, t. 2, p. 293.


without making any difference on account of sex.1 The particular proportions, in several cases, distinctly and sufficiently declare the intention of Muhammad, whose decisions, expressed in the Quran,2 seem to be pretty equitable, preferring a man's children first, and then his nearest relations.

Law concerning wills

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 Muhammadan religion, if such can be had.3 Though there be no express law to the contrary, yet the Muhammadan 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.4

The first law however, laid down by Muhammad touching inheritances was not very equitable; for he declared that those who had fled with him from Makkah, and those who had received and assisted him at Madina, 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;5 but this law continued not long in force, being quickly abrogated.6

Children of concubines legitimate

It must be observed that among the Muhammadans the children of their concubules or slaves are esteemed as

1 Quran, C. 4. v.10.

2 Ibid., and v. 175.

3 Ibid., C. 5, v. 105.

4 Ibid., C. 4, v.7.

5 Ibid., C. 8, V.73.

6 Ibid., and o 33, v.6.


equally legitimate with those of their legal and ingenuous wives, none being accounted bastards except such only as are born of common women and whose fathers are unknown.

Law concerning private contracts.

As to private contracts between man and man, the conscientious performance of them is frequently recommended in the Quran.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 Muslims 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 plantiff nothing, unless the contrary be proved by very convincing circumstances.5

Murder and its penalty

Wilful murder, though forbidden by the Quran 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 Muslim 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, or be put to death in such manner as he shall think fit.7 In this particular

1 Quran, c.5, v. 1;c.17;c. 2,v. v.282., &c.

2 Ibid., c. 2, v.282.

3 The same seems to have been required by the Jewish law, even in cases where life was not concerned. See Deut. xix. 15; Matt. xiiii. 16; John viii. 17; 2 Cor. xiii. I.

4 Quran, c.2, v.282.

5 Vide Chardin, Voy. do Perse, t. 2, p.294, &c, and the notes to Quran, c.5, v. 106.

6 Quran, c. 4, vs. 91, 92.

7 Ibid., c. 2, v. 178; c. 17, v. 35. Vide Chardin, ubi sup., p. 299, &c.


Muhammad has gone against the express letter of the Mosaic law, which declares that no satisfaction shall be taken for the life of a murderer;1 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,2 whole tribes frequently engaging in bloody wars on such occasions, the, natural consequence of their independency, and having no common judge or superior.

Manslaughter and it penalty

If the Muhammadan 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.3 The fine for a man's blood is set in the Sunnat at a hundred camels,4 and is to be distributed among the relations of the deceased according to the laws of inheritance; but it must be observed that though the person slain be a Muslim, 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.5 I imagine that Muhammad, 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

1 Numb. xxxv. 31.

2 This is particularly forbidden in the Quran, c.17, v.35.

3 Quran, c. 4, v. 91.

4 See the notes to c. 37.

5 Quran, c. 4, v.91.


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;1 nor could any satisfaction be made for the slayer to return home before the prescribed time.2

Penalty for theft.

Theft is ordered to be punished by cutting off the offending part, the hand,3 which, at first sight, seems just enough; but the law of Justinian, forbidding a thief to be maimed,4 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.5 The Sunnat 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.6

Law of retaliation.

As to injuries done to men in their persons, the law of retaliation, which was ordained by the law of Moses,7 is also approved by the Quran 8 but this law, which seems to have been allowed by Muhammad 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,9 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.10 Or rather, Muhammad designed the words of the Quran relating thereto should be under-

1 See Numb. xxxv. 26-28.

2 Ibid., v. 32.

3 Quran, c. 5, v.42.

4 Novell, 134, c. 13.

5 Vide Pufendorf, De Jure Nat. et Gent., 1.8, c. 3, § 26.

6 See the notes to Cap. 5, v.42.

7 Exod. xxi. 24, &c.; Levit. xxiv. 20; Deut. xix. 21.

8 Cap. 5, c.49.

9 Vide Grotium, De Jure Belli et Pacis, 1. I, c.2, § 8.

10 Vide Chardin, t. 2, p.299. The tailo, 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., 1. 20, c.1 and Festum, in voce Talio.


stood 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,1 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 judge according to the heinousness of the fact.2

Penalty for petty crimes.

In injuries and crimes of an inferior nature, where no particular punishment is provided by the Quran, and where a pecuniary compensation will not do, the Muhammadans, according to the practice of the Jews in the like case,3 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.4

Distinction between civil and ecclesiastical laws.

Notwithstanding the Quran is by the Muhammadans in general regarded as the fundamental part of their civil law, and the decisions of the Sunnat among the Turks and of the Imams 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

1 See Exod. xxi. 18, 19, and 22.

2 Barbeyrac, in Grot., ubi supr. Vide Cleric. in Exod. xxi. 24, and Deut. xix. 21.

3 See Deut. xxv. 2, 3.

4 Vide Grelot1 Voy. de Constant., p. 220, and Chardin, ubi supra, p. 302.


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

The command to was against infidels.

Under the head of civil laws may be comprehended the injunction of warring against infidels, which is repeated in several passages of the Quran,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 Muhammadan 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 Muslims 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 Quran.5 Such a doctrine, which Muhammad 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 over-come by the courage and constancy which these sentiments necessarily inspire?

Jewish doctrine concerning war in defence of religion.

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

1 Vide Chardin, ubi supra, p. 290, &c.

2 Cap. 22; c. 2, v. 190-193; c. 4, v.83, &c.; c.8; c. 9; c. 47 and c. 61, &c.

3 Cap. 2, v. 155; c. 3, v. 142; C.

4 Reland, De Jure Milit. Moham., p. 5 &c.

5 Vide c. 9; c.3, v.143, &c.

6 See ante, p. 83.

7 Halach. Melachim, c.7.


on him who is the hope of Israel, and the saviour thereof in the time of trouble;1 and let him know that he fights for the profession of the divine unity: wherefore let him put his life in his hand,2 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; 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.3 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. 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 of bundle of life with the Lord his GOD."5 More passages this kind might be produced from the Jewish writers, and the Christians come not far behind them.

Opinions of Christian Crusaders on the same subject.

"We are desirous of knowing," says one,6 writing to the Franks Crusaders 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

1 Jer. xiv. 8.

2 Job xiii. 14.

3 Deut, xx. 8.

4 Jer. xlviii. 10.

5 I Sam. xxv. 28, 29.

6 Nicolaus, in Jure Canon., c. omnium 23, quaest. 5.


another 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."1 The Jews, indeed, had a divine commission, extensive and explicit enough, to attack, subdue, aud destroy the enemies of their religion; and Muhammad pretended to have received one in favour of himself and his Muslims 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 practice a doctrine so opposite to the temper and whole tenor of the Gospel seems very strange; and yet the latter have carried matters further, and shown a more violent spirit of intolerance than either of the former.

Laws of war among Muslims.

The laws of war, according to the Muhammadans, have been already so exactly set down by the learned Reland,2 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 Muhammadism was in its infancy, the opposes

* Though Muhammad undoubtedly took Moses as his pattern, and supposed himself following in the footsteps when he gave the command to fight against the infidels, yet there is no comparison between them whatever so far as warring against infidels is concerned. The Israelites were commanded to slay the Canaanites as divinely ordained instruments of destruction but Muhammad inaugurated war as a means of prosleytism. The Israelite was not permitted to proselytise from among the Canaanites, Exod. xxiii. 27-33; but Muslims are required to proselytise by sword-power. E.M.W.

1 Leo IV., op. cit., quaest. 8.

2 In his treatise De Jure Militari Mohammedanor, in the third vol. of his Dissertationes 'Miscellaneae.


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,1 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 Amalekites 3 and Midianites,4 who had done their utmost to cut them off in their passage thither. When the Muhammadans declare war against a people of a different faith, they give them their choice of three offers, viz., either to embrace Muhammadism, in which case they become not only secure in their persons, families, and fortunes, but entitled to all the privileges of other Muslims; 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 he sword, in which last case, if the Muslims prevail, the women and children which are made captives become absolute slaves, and the men taken in battle may either be slain, unless they turn Muhammadans, 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

* The difference seems to me to be very great. The Israelites might make peace with idolaters on condition of their becoming tributaries. The Muslims might not do so on any condition but that of conversion to Islam. With the Jew it was a case of policy- with the Muslim, of religion. E.M.W.

1 Quran, C. 47, v.5, and the notes there; and c. 4, v. 89; c. 5, v. 38.

2 Deut. xx. 16-18.

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.


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 surrender who will;" and in the' third, "Let him fight who will;"1 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."2

Law regulating the division of spoils.

On the first considerable success of Muhammad 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,3 reserving thereout, in the first place, one-fifth part4 for the uses after mentioned; and, in consequence hereof, he took himself to be authorised, 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 Hawazin taken at the battle of Hunain, which he bestowed by way of presents on those of Makkah only, passing by those of Madina, and highly distinguishing the principal Quraish, that he might ingratiate himself

1 Talmud Hierosol. apud Maimonid. Halach. Melachim, C. 6, § 5. R. Bechai, ex lib. Siphre. Vide Selden, De Jure Nat. et Gent. Sec. Hebr., 1. 6, c. 13 and 14; and Schickardi, Jus Regium Heb., C. 5, Theor. 16.

2 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 in defending themselves1 fled into Africa in great numbers. (Vide Talm. Hieros., ubi sup.) And this assigned as the reason why the Girgashites are not mentioned among the other Canaanitish nations who assembled to fight against Joshua (Josh. ix. i), 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.

3 Quran c. 8.

4 Ibid.


with them after he bad become master of their city.1 He was also allowed in the expedition against those of al Nadhir 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,2 but the whole army went on foot; and this became thence-forward a law 3 the reason of which seems to be, that the spoil taken by a party consisting of infantry only should be considered as the more immediate gift of GOD,4 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,5 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 the congregation;6 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.7 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;8 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 Muhammad's men about sharing the booty at Badr arose on the same occasion as did that among David's soldiers in relation to the spoils recovered

1 Abulfed. in Vit. Moh., p.118, &c. Vide Quran, c. 9, and the notes there.

2 Quran, c. 59, v.6. see the notes there.

3 Vide Abulfed., ubi sup., p.91.

4 Vide Quran, c. 59, v.6.

5 Gemar. Babyl. ad tit. Sanhedr., c. 2. Vide Selden, De Jure Nat. et Gent. Sec. Heb. lib. 6, c. 6.

6 Numb. xxx. 27.

7 Vide Maim. Halach. Melach.,

8 Josh. xxii. 8.

9 See Quran, c. 8, and the notes there.


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.

God's fifth of the spoils - how to be used.

The fifth part directed by the Quran 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 Shaffi 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 Muhammad, that is, the descendants of his grandfather Hasham, and of his great-uncle al Mutallib,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 Malik Ibn Ans, the whole is at the disposition of the Imam or prince, who may distribute the same at his own discretion, where he sees most need.5 Abu'l Aliya went according to the letter of the Quran, 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 Kaabah; while others supposed GOD'S part and the

1 I Sam. xxx. 21-25.

2 Quran, c. 8.

3 Note, al Shafii himself was descended from the latter.

4 Al Baid. Vide Reland, De Jure Milit. Moham., p.42, &c.

5 Idem.


apostle's to be one and the same.1 Abu Hanifa thought that the share of Muhammad and his kindred sank at that prophet's death; since which the whole ought to be divided among the orphans, the poor, and the traveller.2 Some insist that the kindred of Muhammad entitled to a share of the spoils are the posterity of Hasham only; but those who think the descendants of his brother al Mutallib have also a right to a distributive part, allege a tradition in their favour purporting that Muhammad himself divided the share belonging to his relations among both families; and when Othman Ibn Assan and Jubair Ibu Matam (who were descended from Abd-as-Shams and Naufal, the other brothers of Hasham) told him that though they disputed not the preference of the Hashamites, they could not help taking it in to see such difference made between the family of al Mutallib 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 Mutallib had forsaken him neither in the time of ignorance nor since the revelation of Islam, and joined his fingers together in token of the strict union between them and the Hashamites.3 Some exclude none of the tribe of Quraish 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 Quran, 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.4 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

1 Reland, De Jure Milit. Moham., p.42, &c.

2 Idem.

3 Idem.

4 Idem.


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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