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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 perform ance of them is frequently recommended in the Korân. 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 Korân 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 put to death in such a manner as he shall think fit. In this particular Mohammed has gone against the express letter of the Mosaic law, which declares 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 or 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

Chap. 2, p. 34.

The same seems to

Kor. c. 5, p. 81, c. 17, c. 2, p. 34, &c. have been required by the Jewish law, even in cases where life was not concerned. See Deut xix. 15, Matt. xviii. 16, John viii. 17, 2 Cor. xiii. 1. Kor. c. 2, p. 34. Vide Chardin, Voy. de Perse, t. ii. p. 294, &c., and the notes to Kor. c. 5, p. 96. Kor. c. 4, Ibid. c. 2, p. 20, 21, c. 17. Vide Chardin, ubi sup. p. 229, &c. 1 Numb. txxv. 31. "This is particularly forbidden in the Korân, c. 17. Kor. c. 4, p. 72 See the notes to c. 37.

♪. 72.

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Kor. c. 4. D. 72

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 sto len 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 Korân:* but this law, which seems to have been allowed by Mohammed to his Arabians for the same reason 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 mulet or fine, which is paid to the party injured. Or rather Mohammed designed the words of the Korân relating thereto should be understood in the same manner as those of the Pentateuch most probably ought to be; that is, not of an actual retaliation, according to the strict literal meaning, but of a retribution proportionable to the injury for a criminal had not his eyes put out, nor was a man mutilated, according to the law of Moses, which, besides, condemned those who had wounded any person, where death did not ensue, to pay a fine only; 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 Korân, 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 the 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 Korân is by the Mohammedans in general regarded as the fundamental part of their civil law, and the decisions of the Sonna,

Ibid. ver. 32.

Kor. c. 5, p. 86.

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See Numb. xxxv. 26, 27, 28. 134, c. 13. Vide Puffendorf, de Jure Nat. et Gent. lib. viii. c. 3, sect 26. the notes to c. 5, p. 86. Exod. xxi. 24, &c., Lev. xxiv. 20, Deut. xix. 21. Chap. 5. p. 88. • Vide Grotium. de Jure Belli et Pacis. lib. i. c 2, sect. 3. • Vide Char. din, t. ii. p. 299. The talio, likewise established among the old Romans by the laws of the twelve tables, was not to be inflicted, unless the delinquent could not agree with the person injured. Vide A. Gell. Noct. Attic. lib. xx. c. 1, and Festum, in voce talio. • See Exod. xxi. 18, 19, and 22. Barbeyrac, in Grot. ubi sup. Vide Cleric. in Exod. xx: • See Deut. xxv. 2, 3. Vide Grelot, Voy. de Constani.

24. and Deut. xix. 21.

p. 220, and Chardin, ubi sup. p. 302.

mong 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 there fore distinction is to be made between the written civil law, as adminis tered 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 Mohainmed 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 suc cessors 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 behavesh 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

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Vide Chardin, ubi sup. p. 290, &c.

Chap. 22, c. 2, p. 22, c. 4, p. 69, &c., c. 8, 2. 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, 52, &c. See before, p. 34. Halach. Melachim, c. 7. • Deut. xx. 8

⚫ Jer. xiv. 8.

Job xiii. 14.

Jer. xlviii. 10.

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shall be bound up in the bundle of life with the Lord his God." 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 there. fore 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 con sistently 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.8 The same sentence was pronounced not only against the seven Canaanitish na. tions, 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 na. tions 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. ib. quæst. 8.

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Nicolaus, in Jure Canon. c. Omnium, 23, quæst. 5.
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Dissertaties Miscellaneæ. D. 86. Deut. xx. 16-18. and the notes there.

none of those nations made peace with the Israelites (except on's the Gibeonites, who obtained terms of security by stratagem, after thev had refused those offered by Joshua), it being of the Lord to harden their hearis, 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 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. Tnus 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: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, 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 Bedr3 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. 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. 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. Josh. xxii. 8. • See Kor c. 8. and the notes there. 1 Sam. xxx. 21-25.

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