5 See c. 4, p. 53, 54, and 56, and the notes there. Vide etiam Poc. Spec.
p. 337. 6 Kor. c. 4, ubi supra.
1 Ibid. p. 54 and 72. Vide Chardin, Voy. de Perse, t. 2, p. 293.
2 Kor. ibid. p. 54. 3 Ibid. and p. 72.
4 Kor. c. 5, p. 86. 5 Kor. c. 4, p. 54. 6 Cap. 8.
7 Ibid. and c. 33
of their legal and ingenuous wives; none being accounted bastards, except such only as are born of common women, and whose fathers are unknown. As to private contracts between man and man, the conscientious performance of them is frequently recommended in the Korân.1 For the preventing of disputes, all contracts are directed to be made before witnesses,2 and in case such contracts are not immediately executed, the same ought to be reduced into writing in the presence of two witnesses3 at least, who ought to be Moslems and of the male sex; but if two men cannot be conveniently had, then one man and two women may suffice. The same method is also directed to be taken for the security of debts to be paid at a future day; and where a writer is not to be found, pledges are to be taken.4 Hence, if people trust one another without writing, witnesses, or pledge, the party on whom the demand is made is always acquitted if he denies the charge on oath, and swears that he owes the plaintiff nothing, unless the contrary be proved by very convincing circumstances.5 Wilful murder, though forbidden by the Korân under the severest penalties to be inflicted in the next life,6 is yet, by the same book, allowed to be compounded for, on payment of a fine to the family of the deceased, and freeing a Moslem from captivity; but it is in the election of the next of kin, or the revenger of blood, as he is called in the Pentateuch, either to accept of such satisfaction, or to refuse it; for he may, if he pleases, insist on having the murderer delivered into his hands, to be put to death in such manner as he shall think fit.7 In this particular Mohammed has gone against the express letter of the Mosaic law, which declare that no satisfaction shall be taken for the life of a murderer;8 and he seems, in so doing, to have had respect to the customs of the Arabs in his time, who, being of a vindictive temper, used to revenge murder in too unmerciful a manner,9 whole tribes frequently engaging in bloody wars on such occasions, the natural consequence of their independency, and having no common judge of superior. If the Mohammedan laws seem light in case of murder, they may perhaps be deemed too rigorous in case of manslaughter, or the killing of a man undesignedly, which must be redeemed by fine (unless the next of kin shall think fit to remit it out of charity), and the freeing of a captive: but if a man be not able to do this, he is to fast two months together, by way of penance.1 The fine for a man's blood is set in the Sonna at a hundred camels,2 and is to be distributed among the relations of the deceased, according to the laws of inheritances; but it must be observed that, though the person slain be a Moslem, yet if he be of a nation or party at enmity, or not in confederacy with those to whom the slayer belongs, he is not then bound to pay any fine at all, the redeeming a captive being, in such case, declared a sufficient penalty.3 I
1 Cap. 5, p. 73; c. 17; c. 2, p. 31, &c. 2 Cap. 2, p. 31. 3 The same seems to have been required by the Jewish law, even in cases where life was not concerned. See Deut. xix. 15, Matth. xviii. 16, John viii. 17, 2 Cor. xiii. I. 4 Kor. c. 2, p. 30, 31. 5 Vide Chardin, Voy. de Perse, t. 2, p. 294, &c., and the notes to Kor. c. 5, p. 86. 6 Kor. c. 4, p. 64. 7 Cap. 2, p. 18, 19; c. 17. Vide Chardin, ubi sup. p. 299, &c. 8 Numb. xxxv. 31. 9 This is particularly forbidden in the Korân, c. 17. 1 Kor. c. 4, p. 64. 2 See the notes to c. 37 3 Kor. c. 4, p. 64.
imagine that Mohammed, by these regulations, laid so heavy a punishment on involuntary manslaughter, not only to make people beware incurring the same, but also to humour, in some degree, the revengeful temper of his countrymen, which might be with difficulty, if at all, prevailed on to accept a lighter satisfaction. Among the Jews, who seem to have been no less addicted to revenge than their neighbours, the manslayer who had escaped to a city of refuge was obliged to keep himself within that city, and to abide there till the death of the person who was high priest at the time the fact was committed, that his absence and time might cool the passion and mitigate the resentment of the friends of the deceased; but if he quitted his asylum before that time, the revenger of blood, if he found him, might kill him without guilt;4 nor could any satisfaction be made for the slayer to return home before the prescribed time.5 Theft is ordered to be punished by cutting off the offending part, the hand,6 which, at first sight, seems just enough; but the law of Justinian, forbidding a thief to be maimed,7 is more reasonable; because, stealing being generally the effect of indigence, to cut off that limb would be to deprive him of the means of getting his livelihood in an honest manner.8 The Sonna forbids the inflicting of this punishment, unless the thing stolen be of a certain value. I have mentioned in another place the further penalties which those incur who continue to steal, and of those who rob or assault people on the road.9 As to injuries done to men in their persons, the law of retaliation, which was ordained by the law of Moses,10 is also approved by the Korân:1 but this law, which seems to have been allowed by Mohammed to his Arabians for the same reasons as it was to the Jews, viz., to prevent particular revenges, to which both nations were extremely addicted,2 being neither strictly just nor practicable in many cases, is seldom put in execution, the punishment being generally turned into a mulct or fine, which is paid to the party injured.3 Or rather Mohammed designed the words of the Korân relating thereto should be understood in the same manner as those of the Pentateuch most probably ought to be; that is, not of an actual retaliation, according to the strict literal meaning, but of a retribution proportionable to the injury: for a criminal had not his eyes put out, nor was a man mutilated, according to the law of Moses, which, besides, condemned those who had wounded any person, where death did not ensue, to pay a fine only,4 the expression "eye for eye and tooth for tooth" being only a proverbial manner of speaking, the sense whereof amounts to this, that every one shall be punished by the judges according to the heinousness of the fact.5 In injuries and crimes of an inferior nature, where no particular punishment is provided by the Korân, and where a pecuniary compensation will not do, the Mohammedans, according to the practice of the
4 See Numb. xxxv. 26, 27, 28. 5 Ibid. v. 32. 6 Kor. c. 5, p. 78. 7 Novell. 134, c. 13. 8 Vide Pufendorf, de Jure Nat. et Gent. l. 8, c. 3, § 26. 9 See the notes to c. 5, p. 78. 10 Exod. xxi. 24, &c., Levit. xxiv. 20, Deut. xix. 21. 1 Cap. 5, p. 79. 2 Vide Grotium , de Jure Belli et Pacis, l. I, c. 2, § 8. 3 Vide Chardin, t. 2, p. 299. The talio, likewise established among the old Romans by the laws of the twelve tables, was not to be inflicted, unless the delinquent could not agree with the person injured. Vide A. Gell. Noct. Attic. l. 20, c. I, and Festum, in voce Talio. 4 See Exod. xxi. 18, 19, and 22. 5 Barbeyrac, in Grot. ubi supra. Vide Cleric. in Exod. xxi. 24, and Deut. xix. 21.
Jews in the like case,6 have recourse to stripes or drubbing, the most common chastisement used in the east at this day, as well as formerly; the cudgel, which for its virtue and efficacy in keeping their people in good order, and within the bounds of duty, they say came down from heaven, being the instrument wherewith the judge's sentence is generally executed.7 Notwithstanding the Korân is by the Mohammedans in general regarded as the fundamental apart of their civil law, and the decisions of the Sonna among the Turks, and of the Imâms among those of the Persian sect, with the explications of their several doctors, are usually followed in judicial determinations, yet the secular tribunals do not think themselves bound to observe the same in all cases, but frequently give judgment against those decisions, which are not always consonant to equity and reason; and therefore distinction is to be made between the written civil law, as administered in the ecclesiastical courts, and the law of nature or common law (if I may so call it) which takes place in the secular courts, and has the executive power on its side.1 Under the head of civil laws may be comprehended the injunction of warring against infidels, which is repeated in several passages of the Korân,2 and declared to be of high merit in the sight of GOD, those who are slain fighting in defence of the faith being reckoned martyrs, and promised immediate admission into paradise.3 Hence this duty is greatly magnified by the Mohammedan divines, who call the sword the key of heaven and hell, and persuade their people that the least drop of blood spilt