among the Turks, and of the Imâms, among those of the Persian sect, with he 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 Korân,' 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 Korân. 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 partizans, 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 4 2 Vide Chardin, ubi sup. p. 290, &c. Chap. 22, c. 2, p. 22, c. 4, p. 69, &c., c. 8, c. 9, c. 47, and c. 61, &c. Chap. 2, p. 18, c. 3, p. 51, 55, c. 47, and c. 61. • Reland. de Jure Milit. Moham. p. 5, &c. Vide c. 9, and c. 3, p. 52, &c. See before, p. 34. Halach. Melachim, c. 7. Jer. xiv. 8. i Job xiii. 14. 2 Deut. xx. 8 Jer. xlviii. 10. 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) whe 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 tenor 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 mili tary 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 into 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 the Amalekites' 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 surrender, who will; and in the third, Let him fight, who will; though 1 Sam. xxv. 28, 29. Nicolaus, in Jure Canon. c. Omnium, 23, quæst. 5. ib. quæst. 8. In his treatise De Jure Militari Mohammedanor, in the third Dissertationes Miscellaneæ. See Kor. c. 47, and the notes there; and c. 4, D. 86. Deut. xx. 16-18. Ib. c. xxv. 17-19. 2 Numb. xxxi. 17. and the notes there. See the notes to c. 47. 8 Deut. xx. 10-15. 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? 10 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 the 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 Nadîr to take the whole booty to himself, and to dispose thereof as he pleased, because no horses or camels were made use of in that expedition,1 but the whole army went on foot; and this became thenceforward a law:2 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,3 and therefore property 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 the 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 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 Hierosol. apud Maimonid. Halach. Melachim, c. 6, sect. v. R. Bechai, ex lib. Siphre. Vide Selden. de Jure Nat. et Gent. sec. Hebr. lib. 6, c. 13, 14, and Schickardi Jus Regium Hebr. c. 5, Theor. 16. 'Josh. xi. 20. The Jews. however, say that the Girgashites, believing they could not escape the destruction with which they were threatened by God, if they persisted to defend themselves, fled into Africa in great numbers; (vide Talm. Hieros. ubi sup.) And this is assigned as the reason why the Girgashites are not mentioned among the other Canaanitish nations who assembled to fight against Joshua (Josh. ix. 1), 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. 11. Kor. c. 8. • Ibid. 10 Abulfed in Vit. Moh. p. 118, &c. Vide Kor. c. 9, and the notes there. 1 Kor. c. 59, and the notes there. Vide Abulfed. ubi sup. p. 91. 3 Vide Kor. c. 59, ubi sup. • Gemar. Babyl. ad tit. Sanhedr. c. 2. Vide Selden de Jure Nat. et Gent. sec. Hebr. lib. 6, c. 16. Num. xxxi. 27. • Vide Maim. Halach. Melach. c. 4. 1 Josh. xxii. 8. Kor. c. 8, and the notes there. 1 Sam. xxx. 21-25. • See same decision was given in both cases, which became a law for the future, to wit, that they should part alike. The fifth part, directed by the Korân to be taken out of the spoil before it be divided among the captors, is declared to belong to God, and to the apostle, and his kindred, and the orphans, and the poor, and the traveller:1 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 Hâsham, 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.3 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 went according to the letter of the Korân, and declared his opinion to be that the whole should be divided into six parts, and that God's part should be applied to the service of the Caaba: while others suppose God's part and the apostle's to be one and the same." Abu Hanîfa 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 share of the spoils are the posterity of Hâshem only; but those who think the descendants of his brother al Motalleb have also a right to a distributive part allege a tradition in their favour, purporting that Mohammed himself divided the share belonging to his relations among both families, and when Othmân Ebn Assân and Jobeir Ebn Matám (who were descended from Abdshams and Nawfal, the other brothers of Hâshem), told him, that, though they disputed not the preference of the Hâshemites, they could not help taking it ill to see such difference made between the family of al Motalleb and themselves, who were related to him in an equal degree, and yet had no part in the distribution, the prophet replied, that the descendants of al Motalleb had forsaken him neither in the time of ignorance, nor since the revelation of Islam; 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 Korân, as is agreed in the case of the stranger; and others go so far as to assert that the whole fifth commanded to be reserved belongs to them only, and that the orphans, and the poor, and the traveller, are to be understood of such as are of that tribe. It must be observed, that immoveable possessions, as lands, &c., taken in war, are subject to the same laws as the moveable; 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 'Korân, c. 8. 2 Note, al Shâfei himself was descended from this latter. * Al Beid. Vide Reland. de Jure Milit. Moham. p. 42, &c. • Idem. • Idem. • Idem. • Idem. 4 • Idem. pious uses, and distributed once a year, and that the prince may either take the fifth part of the land itself, or of the fifth part of the income and produce of the whole, as he shall make his election. SECTION VII. OF THE MONTHS COMMANDED BY THE KORAN TO BE KEPT SACRED; AND OF THE SETTING APART OF FRIDAY FOR THE ESPECIAL SERVICE OF God. Ir was a custom among the ancient Arabs to observe four months in the year as sacred, during which they held it unlawful to wage war, and took off the heads from their spears, ceasing from incursions and other hostilities. During those months, whoever was in fear of his enemy lived in full security; so that if a man met the murderer of his father or his brother, he durst not offer him any violence:1 a great argument, says a learned writer, of a humane disposition in that nation; who being, by reason of the inde. pendent governments of their several tribes, and for the preservation of their just rights, exposed to frequent quarrels with one another, had yet learned to cool their inflamed breasts with moderation, and restrain the rage of war by stated times of truce.2 This institution obtained among all the Arabian tribes, except only those of Tay and Khatháam, and some of the descendants of al Hareth Ebn Caab (who distinguished no time or place as sacred), and was so religiously observed, that there are but few instances in history (four, say some, six, - say others'), of its being transgressed; the wars which were carried on without regard thereto being therefore termed impious. One of those instances was in the war between the tribes of Koreish and Kais Ailân, wherein Mohammed himself served under his uncles, being then fourteen, or, as others say, twenty years old. The months which the Arabs held sacred were al Moharram, Rajeb, Dhu'lkaada, and Dhu'lhajja; the first, the seventh, the eleventh, and the twelfth in the year." Dhu'lhajja being the month wherein they performed the pilgrimage to Mecca, not only that month, but also the preceding and the following were for that reason kept inviolable, that every one might safely and without interruption pass and repass to and from the festival. Rajeb is said to have been more strictly observed than any of the other three, probably because in that month the pagan Arabs used to fast;' Ramadân, which was afterwards set apart by Mohammed for that purpose, 'Al Mogholtaï. Al Kaswîni, apud Golium in notis ad Alfrag. p. 4, &c. Al Shahrestâni, apud Poc. Spec. p. 311. Al Jawhari, al Firauzab. 2 Golius, ubi sup. p. 5. Al Shahrestâni ubi sup. See before, p. 87. Abulfedâ, Vit. Moh. p. 11 Al Kodai, al Firauz. apud Poc. Spec. p. 174. Al Mogholtaï mentions both opinions Mr. Bayle (Dict. Hist. et Crit. Art. la Mecque, Rem. F.) accuses Dr. Prideaux of an inconsistency, for saying in one place (Life of Moh. p. 64), that these sacred months were the first, the seventh, the eleventh, and the twelfth, and intimating in another place (ib. p. 89), that three of them were contiguous. But this must be mere absence of mind in Mr. Bayle: for are not the eleventh, the twelfth, and the first months contiguous? The two learned professors, Golius and Reland, have also made a small slip in speaking of these sacred months, which, they tell us, are the two first and the two last in the year. Vide Golii and Lex. Arab. col. 601, et Reland. de Jure Milit. Mohammedanor. p. 5. • Vide Gul. in Alfrag. p. 9. Vide ibid. p. 6. Al Makrîzi, apud Poc. ubi sup. |