if divorced by her husband, unless she has been guilty of impudicity r notorious disobedience. When a woman is divorced, she is obliged, by the direction of the Korân, 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 a 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 mean time, 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 are also copied from those of the Jews, according to whom a divorced woman, or a widow, cannot marry another man till ninety days be past, after the 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. 9 Whoredom, in single women as well as married, was, in the beginning of 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 forni cation scourged with an 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.2 Fornication, in either sex, is by the sen tence of the Korân to be punished with an hundred stripes.3 If a man accuses his wife of infidelity, and is not able to prove it by suffi. cient 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 if she do, she is free from punishment, though the marriage ought to be dissolved. 65. 65. 184. Smith, de Morib. ac Instit. Turcar. Ep. 2, p. 52, and Chardin. Voy. de Perse, tom. 2. p. 169. 2 Korân, chap. 4, p. 62, 63. Idem, chap. 2, p. 26, and 27, and chap. Ibid. chap. 33. a Ibid. chap. 2. p. 27. Ibid. chap. 2, p. 27, and chap. Mishna, tit. Yabimoth, c. 4, Gemar. Babyl. ad eund. tit. Mainon. in Halach. Girushin, Shylhan Aruch, part 3. Mishna, and Gemara, and Maimon, ubi supra, Gem. Babyl. ad tit. Cetuboth, c. 5, and Jos. Karo, in Shylhân Aruch, c. 50. sect. 2. Vide Seldeni Ux. Hebr. lib. 2, c. 11, and lib. 3. c. 10, in fin. cording to a passage once extant in the Korân, and still in the notes to Kor. chap. 3, p. 37, and the Prel. Disc. p. 48. See the notes there. Kor. chap. 24. Ibid. And the adulterer also, acforce as some suppose. See "Kor. chap. 4, p. 61, 62. Ibid. p. 63. 1 Kor. chap. 4, p. 61, 62. See notes there. This law relates not to married people, as Selden supposes, Ibid. See the notes there. In most of the last-mentioned particulars, the decisions of the Korân also agree with those of the Jews. By the law of Moses, adultery, whether in a married woman or a virgin betrothed, was punished with death; and the man who debauched them was to suffer the same punishment. The penalty of simple fornication was scourging, the general punishment in cases where hone is particularly appointed: and a betrothed bond-maid, 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 dur ing 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. 5 As to the prohibited degrees, it may be observed, that the pagan Arabs abstained from marrying their mothers, daughters, and aunts both on the father's side, and on the mother's, and held it a most scandalous thing to marry two sisters, or for a man to take his father's wife; which last was notwithstanding too frequently practised," and is expressly forbidden in the Korân. Before I leave the subject of marriages, it may be proper to take notice of 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.1 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 un Lev. xx. 10. Deut. xxii. 22. The kind of death to be inflicted on adulterers in common cases being not expressed, the Talmudists generally suppose it to be strangling; which they think is designed wherever the phrase shall be put to death, or shall die the death, is used, as they imagine stoning is by the expression his blood shall be upon him : and hence it has been concluded by some, that the woman taken in adultery, mentioned in the gospel (John viii.) was a betrothed maiden, because such a one and her accomplice were plainly ordered to be stoned. (Deut. xxii. 23, 24.) But the ancients seem to be of a different opinion, and to have understood stoning to be the punishment of adulterers in general. Vide Selden, Ux. Hebr. lib. 3, c. 11, and 12. Levit. xix. 20. xix. 15, xvii. 6, and Num. xxxv. 30. Num. v. 11, &c. • Vide Selden, ubi supr. lib. 3, c. 15, and Leon. Modena, de' Riti Hebraici, parte 4, c. 6. Kor. chap. 2, p. 26. Ibid. chap. 4, p. 60, and 63, &c. See Lev. xv. 24, xviii. 19, and xx. 18. Exod. xxi. 8-11. Deut. xxi. 10-14. Lev. xiii. and xx. Abulfed. Hist. Gen. al Shahrestani, apud Poc. Spec. p. 321, and 338 Deut. xxii. 13-19. ' Vide Poc. ibid. p. 337, &c. Chap. 4, p. 62. Kor. chap. 33. and the notes there. 1 Kor. chap 33. See the notes there. 'Deut. Chap. 4, p. 62. See also chap 66 Kor. chap. 33. Jawful, 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 Korân concerning inheritances are also in several respects conformable to those of the Jews, though principally designed to abolish certain practices of the pagan Arabs, who used to treat widows and orphan children with great injustice, frequently denying them any share in the inheritance of their fathers or their husbands, on pretence that the same ought to be distributed among those only who were able to bear arms, and disposing of the widows, even against their consent, as part of their husband's possessions. 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.5 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 Korâns 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 that 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."0 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 Mishua, tit. Sanhedr. c. 2, and Gemar. in eund. tit. Maimon. Halachoth Melachim, c. 2. Vide Selden, Ux. Hebr. lib. i. c. 10. Prid. Life of Moham. p. 118. • See c. 4, p. 59-62, and the notes there. Vide etiam Poc. Spec. p. 337. Kor. c. 4, ubi sup. Ibid. p. 60, and 80. Vide Chardin, Voy. de Perse, t. ii. p. 293. Kor. Ibid. 1 Ibid. p 60, 61. c 8. Inio. and p. 80. Ibid. and . 33. Kor. c. 5, p. 96. io Ibid. c. 4, p. 60. 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 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. 3 Kor. c. 5, p. 81. c. 17, c. 2. p. 34, &c. The same seems to 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. xxxv. 31. This is particularly forbidden in the Korân, c. 17. See the notes to c. 37. Kor. c. 4, p. 72. 3. 72. 3 Kor. c. 4, p. 72 204531 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.2 As to injuries done to men in their persons, the law of retaliation, which was ordained by the law of Moses,3 is also approved by the Korân: but this law, which seems to have been allowed by Mohamined 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 mulct 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 facts 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. 9 • Novell. * See • Chap. Vide Char 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. 5. p. 88. Vide Grotium, de Jure Belli et Pacis, lib. i. c. 2, sect. 3. 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 Constant. 24, and Deut. xix. 21. p. 220, and Chardin, ubi sup. p. 302. |