(H)erbert (G)eorge Wells - "Little Wars"

Oscar Wilde - "A House of Pomegranates"

P. G. Wodehouse - "Indiscretions of Archie"

L. Lamprey - "Masters of the Guild"

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Books: The Koran (without footnotes)

U >> Unknown >> The Koran (without footnotes)








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SECTION V.

OF CERTAIN NEGATIVE PRECEPTS IN THE KORAN.

HAVING in the preceeding section spoken of the fundamental points of the
Mohammedan religion, relating both to faith and to practice, I shall in this
and the two following discourses, speak in the same brief method of some
other precepts and institutions of the Koran which deserve peculiar notice,
and first of certain things which are thereby prohibited.
The drinking of wine, under which name all sorts of strong and inebriating
liquors are comprehended, is forbidden in the Koran in more places than one.
Some, indeed, have imagined that excess therein is only forbidden, and that
the moderate use of wine is allowed by two passages in the same book: but
the more received opinion is, that to drink any strong liquors, either in a lesser
quantity, or in a greater, is absolutely unlawful; and though libertines indulge
themselves in a contrary practice, yet the more conscientious are so strict,
especially if they have performed the pilgrimage to Mecca, that they hold it
unlawful not only to taste wine, but to press grapes for the making of it, to
buy or to sell it, or even to maintain themselves with the money arising by
the sale of that liquor. The Persians, however, as well as the Turks, are
very fond of wine; and if one asks them how it comes to pass that they
venture to drink it, when it is so directly forbidden by their religion, they
answer, that it is with them as with the Christians, whose religion prohibits
drunkenness and whoredom as great sins, and who glory, notwithstanding,
some in debauching girls and married women, and others in drinking to excess.
It has been a question whether coffee comes not under the above-mentioned
prohibition, because the fumes of it have some effect on the imagination.
This drink, which was first publicly used at Aden in Arabia Felix, about the
middle of the ninth century of the Hejra, and thence gradually introduced into
Mecca, Medina, Egypt, Syria, and other parts of the Levant, has been the
occasion of great disputes and disorders, having been sometimes publicly
condemned and forbidden, and again declared lawful and allowed. At present
the use of coffee is generally tolerated, if not granted, as is that of tobacco,
though the more religious make a scruple of taking the latter, not only
because it inebriates, but also out of respect to a traditional saying of
their prophet (which, if it could be made out to be his, would prove him a
prophet indeed), "That in the latter days there should be men who should bear
the name of Moslems, but should not be really such; and that they should
smoke a certain weed, which should be called TOBACCO." However, the
eastern nations are generally so addicted to both, that they say, "A dish of
coffee and a pipe of tobacco are a complete entertainment;" and the Persians
have a proverb that coffee without tobacco is meat without salt.
Opium and beng (which latter is the leaves of hemp in pills or conserve)
are also by the rigid Mohammedans esteemed unlawful, though not mentioned
in the Koran, because they intoxicate and disturb the understanding as wine
does, and in a more extraordinary manner: yet these drugs are now commonly
taken in the east; but they who are addicted to them are generally looked
upon as debauchees.
Several stories have been told as the occasion of Mohammed's prohibiting
the drinking of wine: but the true reasons are given in the Koran, viz., because
the ill qualities of that liquor surpass its good ones, the common effects
thereof being quarrels and disturbances in company, and neglect, or at least
indecencies, in the performance of religious duties. For these reasons it
was that the priests were, by the Levitical law, forbidden to drink wine or
strong drink when they entered the tabernacle, and that the Nazarites and
Rechabites, and many pious persons among the Jews and primitive Christians,
wholly abstained therefrom; nay, some of the latter went so far as to condemn
the use of wine as sinful. But Mohammed is said to have had a nearer example
than any of these, in the more devout persons of his own tribe.
Gaming is prohibited by the Koran in the same passages, and for the same
reasons, as wine. The word al Meisar, which is there used, signifies a
particular manner of casting lots by arrows, much practised by the pagan
Arabs, and performed in the following manner. A young camel being bought
and killed, and divided into ten or twenty-eight parts, the persons who cast
lots for them, to the number of seven, met for that purpose; and eleven
arrows were provided, without heads or feathers, seven of which were marked,
the first with one notch, the second with two, and so on, and the other four
had no mark at all. These arrows were put promiscuously into a bag, and then
drawn by an indifferent person, who had another near him to receive them,
and to see he acted fairly; those to whom the marked arrows fell won shares
in proportion to their lot, and those to whom the blanks fell were entitled to
no part of the camel at all, but were obliged to pay the full price of it. The
winners, however, tasted not of the flesh, any more than the losers, but the
whole was distributed among the poor; and this they did out of pride and
ostentation, it being reckoned a shame for a man to stand out, and not
venture his money on such an occasion. This custom, therefore, though it
was of some use to the poor and diversion to the rich, was forbidden by
Mohammed as the source of great inconveniences, by occasioning quarrels
and heart-burnings, which arose from the winners insulting of those who lost.
Under the name of lots the commentators agree that all other games
whatsoever, which are subject to hazard or chance, are comprehended and
forbidden, as dice, cards, tables, &c. And they are reckoned so ill in
themselves, that the testimony of him who plays at them, is by the more
rigid judged to be of no validity in a court of justice. Chess is almost the only
game which the Mohammedan doctors allow to be lawful (though it has been a
doubt with some), because it depends wholly on skill and management, and not
at all on chance: but then it is allowed under certain restrictions, viz., that it
be no hindrance to the regular performance of their devotions, and that no
money or other thing be played for or betted; which last the Turks and
Sonnites religiously observe, but the Persians and Mogols do not. But what
Mohammed is supposed chiefly to have dislike in the game of chess, was the
carved pieces, or men, with which the pagan Arabs played, being little figures
of men, elephants, horses, and dromedaries; and these are thought, by some
commentators, to be truly meant by the images prohibited in one of the
passages of the Koran quoted above.
That the Arabs in Mohammed's time actually used such images for
chess-men appears from what is related, in the Sonna, of Ali, who passing
accidentally by some who were playing at chess, asked, "What images they
were which they were so intent upon?" for they were perfectly new to him,
that game having been but very lately introduced into Arabia, and not long
before into Persia, whither it was first brought from India in the reign of
Khosru Nushirwân. Hence the Mohammedan doctors infer that the game was
disapproved only for the sake of the images: wherefore the Sonnites always
play with plain pieces of wood or ivory; but the Persians and Indians, who are
not so scrupulous, continue to make use of the carved ones.
The Mohammedans comply with the prohibition of gaming much better than
they do with that of win; for though the common people among the Turks more
frequently, and the Persians more rarely, are addicted to play, yet the better
sort are seldom guilty of it.
Gaming, at least to excess, has been forbidden in all well-ordered states.
Gaming-houses were reckoned scandalous places among the Greeks, and a
gamester is declared by Aristotle to be no better than a thief: the Roman
senate made very severe laws against playing at games of hazard, except
only during the Saturnalia; though the people played often at other times,
notwithstanding the prohibition: the civil law forbad all pernicious games; and
though the laity were, in some cases, permitted to play for money, provided
they kept within reasonable bounds, yet the clergy were forbidden to play at
tables (which is a game of hazard), or even to look on while others played.
Accursius, indeed, is of opinion they may play at chess, notwithstanding that
law, because it is a game not subject to chance, and being but newly invented
in the time of Justinian, was not then known in the western parts. However,
the monks for some time were not allowed even chess.
As to the Jews, Mohammed's chief guides, they also highly disapprove
gaming: gamesters being severely censured in the Talmud, and their
testimony declared invalid.
Another practice of the idolatrous Arabs forbidden also in one of the
above-mentioned passages, was that of divining by arrows. The arrows used
by them for this purpose were like those with which they cast lots, being
without heads or feathers, and were kept in the temple of some idol, in whose
presence they were consulted. Seven such arrows were kept at the temple
of Mecca; but generally in divination they made use of three only, on one of
which was written, "My LORD hath commanded me," on another, "My LORD hath
forbidden me," and the third was blank. If the first was drawn, they looked on
it as an approbation of the enterprise in question; if the second, they made a
contrary conclusion; but if the 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. This superstitious practice of divining by arrows was used by the
ancient Greeks, and other nations; and is particularly mentioned in scripture,
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."
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 Koran, 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. 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, as camels' flesh 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; and the Jewish doctors grant the same liberty in the same case.
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: this food they called
Moswadd, from Aswad which signifies black; the same nearly resembling our
black puddings in name as well as composition. 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: 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.
Swine's flesh, indeed, the old Arabs seem not to have eaten; and their
prophet, in 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, thinking it unlawful to feed thereon, and that very few, if
any, of those animals are found in their country, because it produces not
proper food for them; which has made one writer imagine that if a hog were
carried thither, it would immediately die.
In the prohibition of usury 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 Koran
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 Bahira, Sâiba, Wasila, 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 Bahira. Or the Bahira 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 Sâiba,
which was used in the same manner as its dam; or else an ewe, which had
yeaned five times. These, however, are not all the opinions concerning the
Bahira: 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; 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.
Sâiba 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 Sâiba, and, as a mark of it, one of the vertebrae or bones
was taken out of her back, after which none might drive her from pasture
or water, or ride on her. Some say that the Sâiba, when she had ten times
together brought forth females, was suffered to go at liberty, none being
allowed to ride on her, and 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
Bahira, and turned loose as her dam had been.
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: nay, a servant set at liberty and dismissed by his master, was also
called Sâiba; 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.
Wasila is, by one author, 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 Sâiba. Or Wasila 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 Wasila 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." Another 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 Wasila 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 fourth 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.
These things were observed by the old Arabs in honour of their false gods,
and as part of the worship which they paid them, and were ascribed to the
divine institution; but are all condemned in the Koran, and declared to be
impious superstitions.
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; the birth of a
daughter being, for these reasons, reckoned a great misfortune, and the death
of one as a great happiness. 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. 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.
In the time of ignorance, while they used this method to get rid of their
daughters, Sasaa, 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 Khalifs 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 Koran, "He who saveth
a soul alive, shall be as if he had saved the lives of all mankind." 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; and by the laws of Lycurgus 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.
This wicked practice is condemned by the Koran in several passages; one
of which, as some commentators judge, may also condemn 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
Koran, or having been occasionally taken notice of elsewhere, I shall say
nothing of them in this place.





______


SECTION VI.

OF THE INSTITUTIONS OF THE KORAN IN CIVIL AFFAIRS.

THE Mohammedan civil law is founded on the precepts and determinations of
the Koran, 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, Malec, al
Shâfei, and Ebn Hanbal, 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, is allowed by the Koran, 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, and others as many concubines, as he can maintain: whereas,
according to the express words of the Koran, no man can have more than
four, whether wives or concubines; 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), 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; and this 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; 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,
though their law confines them not to any certain number.
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; 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. 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. It must be observed that, though a man
is allowed by the Mohammedan, as by the Jewish law, 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, which she does not if
divorced by her husband, unless she has been guilty of impudicity or
notorious disobedience.
When a woman is divorced she is obliged, by the direction of the Koran, 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. Where a man divorces a woman
before consummation, she is not obliged to wait any particular time, nor is
he obliged to give her more than one-half of her dower. 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.
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: 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.
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, and an unmarried woman guilty of fornication
scourged with a hundred stripes, and banished for a year. A she-slave, if
convicted of adultery, is to suffer but half the punishment of a free woman,
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, 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. Fornication, in either sex, is by the sentence of the Koran
to be punished with a hundred stripes.
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.
In most of the last-mentioned particulars the decisions of the Koran 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. 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. By the same law no person was to be put to death on the oath
of one witness: and a man who slandered his wife was also to be chastised,
that is scourged, and fined one hundred shekels of silver. The method of
trying a woman suspected of adultery where evidence was wanting, by forcing
her to drink the bitter water of jealousy, though disused by the Jews long
before the time of Mohammed, 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, the taking of slaves to wife, and the prohibiting of marriage
within certain degrees, have likewise no small affinity with the institutions
of Moses; 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; which last was,
notwithstanding, too frequently practised, and is expressly forbidden in the
Koran.
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; 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. A third privilege was, that no man might marry
any of his wives, 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; 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.
The laws of the Koran 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. 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.
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: 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. The particular
proportions, in several cases, distinctly and sufficiently declare the intention
of Mohammed; whose decisions expressed in the Koran 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. 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.
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: but this law continued not
long in force, being quickly abrogated.
It must be observed that among the Mohammedans the children of their
concubines or slaves are esteemed as 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.
As to private contracts between man and man, the conscientious
performance of them is frequently recommended in the Koran. For the
preventing of disputes, all contracts are directed to be made before
witnesses, and in case such contracts are not immediately executed, the
same ought to be reduced into writing in the presence of two witnesses 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.
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.
Wilful murder, though forbidden by the Koran under the severest penalties
to be inflicted in the next life, 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. 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; 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, 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. The fine for a man's blood is set in the Sonna at a hundred camels,
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. I 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; nor could any satisfaction be made for the slayer
to return home before the prescribed time.
Theft is ordered to be punished by cutting off the offending part, the hand,
which, at first sight, seems just enough; but the law of Justinian, forbidding a
thief to be maimed, 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. 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.
As to injuries done to men in their persons, the law of retaliation, which
was ordained by the law of Moses, is also approved by the Koran: 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, 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. Or
rather Mohammed designed the words of the Koran 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, 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.
In injuries and crimes of an inferior nature, where no particular punishment
is provided by the Koran, and where a pecuniary compensation will not do, the
Mohammedans, according to the practice of the Jews in the like case, 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.
Notwithstanding the Koran 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.
Under the head of civil laws may be comprehended the injunction of warring
against infidels, which is repeated in several passages of the Koran, 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. 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: 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
Koran. Such a doctrine, which Mohammed ventured not to teach till his
circumstances enabled him to put it in practice, 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,
"rely on him who is the hope of Israel, and the saviour thereof in the time
of trouble; and let him know that he fights for the profession of the divine
unity: wherefore let him put his life in his hand, 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." 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 bundle of life with the LORD his GOD." 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 one 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 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." 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, 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. The same sentence was
pronounced not only against the seven Canaanitish nations, 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
theAmalekites and Midianites, 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, 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. Herewith agree the laws of war given to the Jews, which relate to
the nations not devoted to destruction; 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;" 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."
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, reserving thereout, in the first place,
one-fifth part 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. He was also
allowed in the expedition against those of al Nadir 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, but the whole army went on foot; and
this became thenceforward a law: 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, 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, 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: 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. 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: 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, arose on the same occasion as did that among David's soldiers in
relation to the spoils recovered from the Amalekites; 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 Koran 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: which
words are variously understood. al Shâfei 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, 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. 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. Abu'l Aliya wen according to
the letter of the Koran, 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. Abu Hanifa thought that the share of Mohammed 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. 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 Matam (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. 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 Koran, 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. 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.