D. S. (David Samuel) Margoliouth.

The early development of Mohammedanism; lectures delivered in the University of London, May and June 1913 online

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attack on Khaibar was five years after Badr. Later
exponents of Shafi'i's code make it a condition of the
employment of Unbelievers as troops that the sove-
reign has convinced himself of their loyalty, and that
they do not outnumber the Believers in the army.
Malik appears to have confined the possibility of
employing Unbelievers in campaigns to work that
was not, strictly speaking, fighting — as sappers or
engineers.^ He is unaware of any precedent whereby
the Prophet's practice with regard to Badr was
annulled ; indeed, he asserts that when Medinah was

1 Mudawwanat iii. 40,


itself attacked in the following year he declined to
avail himself of the help of the Jewish residents.
The assignation of the spoil in the case of raids
occupies a large space in Moslem law, and such a
share so clearly falls to the fighter in virtue of his
being a Moslem that there are difficulties about
assigning it to an Unbeliever ; Shafi'i therefore
prefers that when such persons are employed they
should be treated as hirelings/

The introduction of weapons of precision must
have made a great difference in the question of
bearing arms, and the meaning of the word "disarm "
have come to be far more definite than when personal
strength counted for everything in warfare. Until
the attempt to introduce universal service in the
Ottoman empire, when Christians fought side by
side with Moslems, it would appear that the former
were regularly members of independent communities;
it is highly improbable that the loyalty of the
Christians resident within the Islamic empires could
be trusted, and this, as we have seen, is a condition
of their employment. Even when Islamic cities
were undergoing siege, it is probable that the
Christian population could not be trusted to take
part in the defence ; but our records seem singularly
silent on this subject. The fact appears to be, that
after some futile attempts at rising in the provinces
which contained Christian communities, the latter
gave up the idea of forcible resistance to oppression
as hopeless ; at times they welcomed invaders, and

1 Ummiv. 177.


on certain occasions indulged in short-lived triumphs
when those invaders had been successful. The jurists,
however, forbid them to possess arms, and about this
there would seem to be general agreement : the aban-
donment of arms is one of the conditions to be
demanded when they capitulate. It is rather curious
that in the Prophet's biography the Jews figure as
dealers in arms and armour just as they do in the
mediaeval England of Scott. Apparently they could
be trusted not to use them effectively.

Another matter, for which, however, some guidance
might be found in the old Roman law, was the extent
to which the JNIoslem government should interfere
with the practices of the protected communities.
Shafi'i poses the interesting question whether if a
protected community were raided by a foreign power,
which proceeded to prevent it from exercising its
rights — i.e. drinking wine and eating pork — it would
be the duty of the Moslem powers to rescue these
clients, and so enable them to go back to practices
which the law of the Moslems condemned : and he
decides that this would be the JNIoslem government's
duty. He holds also that the contract whereby the
Jews and Christians are protected involves in it
obedience on the part of the members of these
communities to their own magistrates : these magis-
trates are as much officers of the ruling powers as
are the Moslem magistrates. If a dispute between
members of these communities be referred to the
Moslem magistrate, he is not obliged to decide it ;
if the parties refuse to submit to the ruling of their


own magistrate, they may be charged with violation
of their contract with the Moslems ; only, if the
Moslem magistrate choose to decide the case, then
he must decide it according to Moslem law. And
that Moslem law precludes the acceptance of any
but Moslem witnesses.

This last seems a harsh enactment, and one system
admits the evidence of the tolerated cults against
each other ; but difficulties followed from accepting
any other doctrine. For if witnesses be accepted
from any other community than the JNIoslem, they
must submit to analogous tests ; and then, just as
the most pious Moslem is the most credible witness,
so the most pious Jew or Christian will be the most
credible among his co-religionists : which leads to the
strange result that the persons most averse from
Islam will be those to whose witness Islam attaches
value. Dating by the Christian Easter was forbidden
on the ground that its calculation was made by
Christians ; it is not clear whether Shafi'i was aware
that the dating had anything to do with the moon.^
Moreover, the law of Islam only accepts the evidence
of freemen ; if it were to admit that of Jews or
Christians it would be placing the free Unbeliever
above the believing slave ; which is expressly against
the valuation of the Koran. ^ And, indeed, the fact
that the free Moslem is not necessarily a qualified
witness without attestation to his character makes
this question of employing witnesses of other com-
munities exceedingly difficult. For the character

1 Umm iii. 85. 2 ^ 221.


of a witness in the case of a JNloslem means his
observation of Islamic ordinances.

Still, it was impossible to reject all non-Moslem
attestations, and an oath may be exacted from a Jew
or a Christian. An interesting case of such exaction
is where a Jew or Christian has sold a Moslem wine
and declares that he was not aware that such sale
was forbidden. The magistrate is to demand an
oath, and if the dealer takes it he is acquitted.^
Different views were held as to the formula of the
oath to be employed. Some said it was to be by
Allah only ; others allowed an oath by the Law or
the Gospel. And some, in order to ensure greater
sanctity, maintained that it should be taken in some
place which the member of the tolerated cult held

It was, of course, impossible for the government
to avoid the exercise of all jurisdiction in the case
of members of tolerated cults. To a certain extent
Islamic law had to be imposed upon them, and that
distinction between civil and criminal law which the
Moslem jurists are on the whole justly charged with
ignoring forces its way to the front. Malik is asked
why he enforces on a Christian .the INIoslem penalty
(handcutting) when he is found guilty of stealing,
but does not enforce it in the case of adultery,
when the crime is committed by non-Moslems : his
reply is that the former only is injurious to the
community. In the main, then, the principle was
to leave these communities to their own practices

1 Umm iv. 126.


when the Hfe and property of the public were not
thereby endangered, but to interfere when such
danger was involved ; the IMoslem government does
not, however, undertake to protect the honour of
the subject sects, and only interferes to protect it
when Moslem interests are involved. An exceptional
case of interference with custom is its refusal to
tolerate the incestuous marriages with which the
JNIazdians were charged. It acknowledges property
in wine and swine, when Christians are the possessors,
but does not acknowledge it when they are in the
possession of Moslems. This ruling, though appar-
ently in accordance with justice, was not approved
by many pious sovereigns ; in Egyptian history we
read not unfrequently of general raids on the wine
stores and wholesale destruction of their contents.
The excuse in such cases was doubtless that Moslems
could not be prevented from procuring them when
stores existed in their neighbourhood.

For cases of murder wherein members of tolerated
communities were involved assimilation of some sort
to Moslem law was necessary, and complications
arose from the diiFerences of social organisation which
resulted. A murder, by the law of the Koran, was
regarded as an injury to the family which thereby
lost a member, and which might either retaliate by
taking the life of the murderer, or might instead
take a sum of money or its equivalent in goods ; a
difficulty being that the whole family of the murdered
man had to agree before execution could take place,
and this, according to one system, involved waiting


until any minors in the dead man's family had grown
up/ Shafi'i regards all non-Moslem sects as one
community for this purpose ; idolaters are to be
allowed to retaliate on Jews, and conversely. He
also gives these sects the right of mutual inheritance,
which, as has been seen, some jurists disapproved.

With regard to the relative value of Moslem and
Unbelieving lives, it would appear that the view of
the earlier period was more equitable than that of the
later ; as has been seen, a number of traditions are
cited according to which such convinced and even
fanatical Moslems as Omar and Ali, when a Moslem
had murdered a Christian, handed the murderer over
to the family of the murdered man, or else themselves
ordered his execution ; and a tradition even ascribed
an act of strict justice of this sort to the Prophet
himself Other traditions were cited to show that
in the earliest period the blood-money was the same
for all denominations ; and both these theories were
accepted by Abu Hanifah, whose code is official in
the Ottoman empire. Shafi'i, however, while de-
manding the execution of an Unbeliever for the
murder of a Moslem,^ emphasises the maxim,
" Believer is not to be slain fpr Unbeliever," and
assesses the blood-money for a Jew or Christian at
one-third that due for a Moslem, while he fixes that
for a Mazdian at one-fifth. The JNIoslem murderer
of an Unbeliever is, however, according to him, to be
punished, but not excessively, whether the punish-
ment take the form of stripes or of imprisonment.

1 Umm vii. 136. 2 n,ifi.^ vi. SS.



The former should not be numerous ; and the period
of imprisonment ought not to be longer than a year.

The maxim quoted is, of course, ascribed to the
Prophet, though different views were held as to the
occasion whereon he delivered it. In mitigation of
it, it must be observed that murder was not regarded
as a criminal oiFence, and the state provided no
executioner for such cases : the executioner was to
be a member of the injured family, who had to
obtain their authorisation before he could proceed
to retaliate : and it might well be undesirable to
permit the execution of a member of the ruling caste
by a tributary in any circumstances. To us it seems
extraordinary that whereas in the case of some other
crimes commutation of punishment is not permitted,
in this case it is.

Even in modern times there has been sfrave
difficulty in forcing Islamic sovereigns to introduce
equality between their subjects in this matter.
It was asserted that the first time when any inde-
pendent Moslem community had executed Moslems
for the murder of Christians was after the lamentable
massacres of Adana ; and it will be remembered that
English journalists dreaded the results of the execu-
tion of Butrus Pasha's murderer on the ground that
in Egypt the execution of a JNIoslem for the murder
of a Christian was contrary to the law. One w^ould
fancy that this was a case for the application of the
maxim mala consuetudo abolenda est. There would
seem to be a probability that cases must have
occurred before the Adana affair in which such


executions were ordered by Moslem sovereigns, for
the death-punishment was inflicted in all Moham-
medan states with great readiness and capriciously.
The maxim of the Prophet which has been quoted
ordinarily regulated procedure.

The law-books assume that both Jews and Chris-
tians recognise the institution of slavery no less than
Moslems ; and indeed they could scarcely do other-
wise, living in a civilisation that was based on this
institution. It is, however, a legal principle that a
Moslem may not be slave to a member of a tolerated
cult ; he may only be the slave of another JNIoslem.
So soon, therefore, as a slave adopts Islam, it is the
duty of the governor to enforce his sale by his
Christian or Jewish master ; just as, if a Christian
or Jewish wife adopts Islam, her husband is com-
pelled to divorce her, or else to adopt the religion
himself. Cases of difficulty arise, when the woman
is converted during the husband's absence ; the
governor is instructed to see whether the absence
is likely to be long or short ; and to delay the
divorce or enforce it accordingly. Malik forbade
a Moslem to hire himself out to a Christian in any
capacity, e.g. as agricultural labourer.^ He forbade
him to let his house to anyone who intended to use
it for the sale of wine or pork.

A peculiar case of disability is recorded in the
legislation of the pious Caliph Omar II., who enacted
that the tax on trade should in the case of Christian or
Jewish traders be double of what was paid by Moslems.

1 Mudawwanat xi. 75, 159.


It would seem that the relations between Moslems
and Christians steadily deteriorated, doubtless owing
to the natural effect of communities with different
rights and of different status living side by side.
During the earliest period the relations would seem
to have been friendly and at times even affectionate.
The persons who are accused of doing mischief in
the land are said to raid the protected cults. ^ Gover-
nors who are sent out to take charge of provinces are
commanded to deal justly with the people of the
dliimmah^ and Ali in his dying injunctions to his
sons insists upon this.^

A scene is described by Tabari which occurred
after the defeat by one of All's generals of a body
of rebels who had been joined by their Christian
neighbours. In accordance with the Caliph's orders
the Moslem captives are released, but the Christians
with their families are to be led off. Their Moslem
allies accompany them until the general bids them
return ; compelled to part, they embrace, and the
scene was the most affecting which its narrator had
ever witnessed. Presently these Christian captives
find a Moslem chief who redeems them and gives
them their liberty at tremendous cost ; in the
attempt to pay this in full he afterwards loses
his liberty. It is true that All's general in his
despatch states that it was his intention to give
these Christians a lesson and remind them that they
are humble and degraded ; but it would appear that

1 Tabari i. 2922, 7 ; 2993, 21 ; 3303, 15.

2 3247, 1; 3430, 14. s 3453^ 5.


this doctrine had not yet sunk in the Moslem

In the references to the condition of the Christian
subjects of the Moslem empire for the rest of the
Umayyad period we find evidence of a condition of
things which is on the whole satisfactory. The
authorities regularly regard the defence of the Chris-
tian populations as their duty.^ The usurper Yazid,
who defended his usurpation by the iniquities of his
predecessor, in his manifesto declares that he means
to watch over the interests of these subjects, and do
nothing which will tend to drive them from their
homes or reduce their birth-rate.^ A son of the
Caliph Hisham (who died in 125) complained to his
father that a Christian employe had struck his slave ;
the Caliph told him that he must bring an action in
the ordinary way, and when another slave of the
prince took the law into his own hands, he was
punished by the sovereign.* Deserting soldiers are
charged with desiring to pillage the Christian com-
munities which they are likely to pass on their home-
ward journey, an act which the authorities do not
countenance.^ The accusation which meets us so
frequently at later times of undue favour being
shown to Christians who usurp the public offices
scarcely is found in Umayyad times. Possibly the
idea of working the bureaux themselves was not yet
quite familiar to the Moslems. Some fanatics in the

1 Taban i. 3438, 19- ^ ii. 934.

3 ii. 1831. ^ ii. 1731.

^ ii. 1873.


year 119 are represented as charging a somewhat
notorious governor with destroying mosques to build
churches and synagogues, and giving Moslem women
to men of the tolerated sects, but our historian does
not confirm the accusation.^

From the third century onwards we find repeated
allusions to the Ordinance of Omar, or general regu-
lation of the conduct to be observed by members of
subject cults, on pain of losing their treaty rights.
The account of the ordinance is correctly given by
Sir William Muir : " The dress of both sexes and of
their slaves must be distinguished by broad stripes of
yellow ; they were forbidden to appear on horseback,
and if they rode a mule or an ass, the stirrups must
be of wood and the saddle known by knobs of the
same material. Their graves must be level with the
ground, and the mark of the devil placed on the lintel
of their doors. Their children must [not] be taught
by Moslem masters. Besides the existing churches
spared at the conquest, no new building must be
erected for the purpose of worship ; no cross must
remain in view outside nor any hammer be struck.
They must refrain from processions in the streets at
Easter and other solemn seasons." Further, it would
seem that the churches already in their possession
must not be repaired, and that they must be em-
ployed in no government office, wherein Moslems
would be under their orders. The nature of the
saddle permitted was such as to suggest humiliation ;
it was used for parading persons who had incurred

1 Tabari ii. l623.


some serious punishment about the streets/ The
intention of the regulation about the dress was to
render it impossible to mistake one of them, even
from a distance, for a Moslem.

It can scarcely be said that these ordinances are
contrary to the spirit of Islam in the second century,
if the great jurists are authoritative interpreters of the
latter. " Malik was asked concerning certain persons
who went raiding, and disembarked in Cyprus, where
they proceeded to buy sheep, honey, and butter, and
payed for these articles with dinars and dirhems ;
Malik disapproved. He further said to us of his own
initiative : ' I strongly object to coins which contain
the mention of God and His Book being taken and
given to one that is unclean. I disapprove most
strongly of such a practice.' I asked him whether
we might make purchases with dirhems and dinars
of traders who disembarked on our coast, or of
members of the tolerated cults. He replied that
he disapproved. He was asked whether money
might be changed by changers in Moslem markets
who belonged to these cults. He replied that he

According to the same jurist the capitulation of
the subject cults involves their paying a poll-tax and
a land-tax. Supposing such a land-owner sells his
land to a Moslem, he, the Christian or Jewish owner,
will continue to pay the land-tax, because this was
one of the conditions of his capitulation ; and he is
not even allowed to contract out. Supposing, how-

1 Tabari ii. 192, 7 ; l653, 6. ^ Mudawwanat x. 102.


ever, that the Christian owner adopts Islam, then he
ceases to pay either poll-tax or land-tax.

The enactment that Jews and Christians may not
ride horses, or use a saddle resembling that of a
horse, is found in the code of Abu Hanifah, who is
ordinarily the most tolerant of the four. It is agreed
that both men and women belonging to these com-
munities must distinguish themselves in their dress
from the Moslems, and also that their houses must be
distinguished by a mark, doubtless no honourable one.

The pious Caliph Omar II., in a rescript to a gover-
nor, told him to destroy no churches which came
within the contract, but also to let no new ones be
built.^ The question whether new churches may
be built is discussed by Malik, who replies in the
negative. His pupil, however, makes a distinction
between cases. Suppose the Christians are left in
possession of a village, having agreed to pay tribute :
in such a case, since the land theoretically still belongs
to them, there can be no objection to their doing what
they like in this matter. Where, however, the chief
community is Moslem, or where a city has been built
by Moslems, as, e.g., Fustat, Basrah, or Kufah, they
should not be permitted to build. The same code
forbids a Moslem to sell his house to a Christian who
has any intention of turning it into a church ; to let
his house for similar use ; to sell an animal to the
member of a non-Moslem community who is likely
to use it for a sacrifice ; or to hire out a beast to be
ridden at one of their feasts.^

1 Tabari ii. 1372. 2 Mudawwanat xi. ^^.


The distinction between the case in which a com-
munity dwelHng in a place was originally Christian,
and that of Christian residents on what was from the
first Moslem territory, is also emphasised by Shafi'i/
He is particularly concerned with the outward display
and conduct of the religious ceremonies belonging to
these communities. These may be permitted in the
former case, if the original contract involved such
permission ; but are prohibited in the latter. If the
Christians assemble at all for religious worship, it
must be in private, and their voices must not be
raised. Abu Hanifah gives permission for the repair
of such churches as need it, but it is probable that
this was not permitted by the other jurists. i

The question to whom the ordinance goes back
does not concern us ; what is certain is that it was
frequently enforced. The historian Tabari was born
in 224 or 225 a.h. ; in his Chronicle he records
the events of the year 235, and even produces
a copy of a proclamation issued by the Caliph of
the time, al- Mutawakkil. This letter contains the
strictest regulations concerning the dress which the
Christians are to wear, and the nature of the saddles.
In Tabari's account the Caliph also commanded
that all new churches {i.e. such as had been built
since the capitulation of the community) should be
destroyed, that the tenth part of their quarters
should be seized, and a mosque be built upon it if
it were of sufficient space, otherwise be left vacant ;
wooden demons should be nailed to their doors in

1 iv. 126.


order to distinguish a Christian house from a Moslem
house ; they were to be expelled from all offices in
* which they had any control over Moslems, their
children were to be turned out of all Moslem schools
and Moslems were not to give them instruction, their
graves were to be levelled with the soil in order that
they should not resemble the Moslem graves.^

Tabari is, as we have seen, recording an affair that
took place when he was ten years old or more. In
the year 239, when he was fourteen years old,
Mutawakkil introduced even severer measures, for-
bidding them to ride horses ; they w^ere only to be
allowed asses or mules.

Tabari records these enactments wdth no comment,
and without adducing any justification for them.

And what we gather from the chronicles is that
the Ordinance of Omar was at any time liable to be
enforced, and the members of the tolerated com-
munities were never safe from it. It was not found
possible to keep them permanently out of the bureaux ;
for the public business had somehow to be transacted,
and few Moslems were qualified to transact it, while
little confidence was reposed in those who were
qualified. The disabilities of the subject communities
in a way ensured their fidelity. But their promotion
to high office provoked jealousy, and their employers
could not always protect them, unwilling as they
doubtless often were to get the business of the
bureaux into disorder. When therefore the cry was
raised that the Ordinances of Omar had been violated,

1 Tabari iii. 1390.


the jurists naturally went with the people in the
matter, and it was difficult for the sovereign to
refuse to listen. In the year 500 a vizier is cashiered
and restored to office on condition that he is to
employ none but Moslems. In the year 529 a
Christian vizier is appointed by the Egyptian Caliph ;

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Online LibraryD. S. (David Samuel) MargoliouthThe early development of Mohammedanism; lectures delivered in the University of London, May and June 1913 → online text (page 8 of 18)