THE MOSLEM INSTITUTION OF THE OTTOMAN EMPIRE
GENERAL DESCRIPTION
In a survey of the institutional history of the Ottoman Empire, a study
of the complex organization which was based upon and inspired by the
Mohammedan religion would demand as large a space as that given to the
Ruling Institution. In a discussion of the government of the empire,
however, a much briefer treatment will suffice. The Moslem Institution as
a whole will be sketched rapidly; fuller consideration will be given to
its juristic and judicial features, which especially affected and entered
into the government of the nation.
The structure of the Moslem Institution of the Ottoman Empire, as of
the corresponding institutions in all Moslem lands, was and remains to
the present time wholly different from that of any of the Christian
ecclesiastical organizations. As a mere church it claimed far less place
and influence than they do, but in other aspects it reached out far more
widely. It included all those Mohammedans in the Ottoman Empire, outside
of the Ruling Institution, who were in any way lifted above the level
of the ordinary believer. Islam recognized no organized priesthood, no
aristocracy, and no monks; yet the Ottoman Moslem Institution possessed
groups that were much like each of the three. In addition it had a graded
educational system, with a graded corps of teachers, it contained a
hierarchy of jurist-theologians, and it supplied a classified body of
judges, whose combined jurisdictions covered the whole empire. That which
all persons who constituted this institution had in common was a special
relationship to the Mohammedan religion, sometimes based on birth or
piety, but usually established by intellectual training in connection
with the Book and the Law of Islam. In contrast with the Ottoman Ruling
Institution, the Moslem Institution cannot as a whole be regarded under
several aspects. Like the former, it included component institutions;
but these all grew up from the Mohammedan population and rested on
one broad base, instead of being extended downward from the top. At
the same time, the sultan was the head of this institution, whether
it be considered as a whole or in reference to each of its component
institutions. He and his government appointed its most influential
personages, maintained careful oversight of its financial support, and
kept record of the appointments of all its members who shared in this
support. The two great institutions of the Ottoman Empire were therefore
joined together at the top, and, as will appear, they touched at every
other level both in financial and in governmental relations.
The fundamental difference of the two institutions lay in the fact that
the members of the Ruling Institution were drawn almost exclusively
from Christian families, and the members of the Moslem Institution even
more exclusively from Mohammedan families. While it is likely that the
majority of the Mohammedan families had sprung from Christian ancestors
not many generations back, it is also true that Islam acts rapidly upon
the spirit of converts. Accordingly the two institutions were very
differently constituted. Between them arose a rivalry of tendency and
influence which was to become extremely harmful to the Ottoman state.
In this treatise the financial side of the Moslem Institution will be
considered, the four great groups of its membership will be discussed in
the proportion of their relation to the government, and some attention
will be given to the institution as a whole.
FINANCIAL SUPPORT OF THE MOSLEM INSTITUTION[636]
As already stated, a large proportion of the land of the Ottoman Empire,
perhaps one-third,[637] was set aside as _vakf_, or religious endowment.
Much of this had been so devoted by sultans, and in such cases the
imperial treasury could use for its own purposes none of the revenue or
income from these lands. Other parcels of land had been set apart by
private individuals, in these instances the treasury receiving for its
own use the same revenues as before the endowment, while the surplus
income from the land was devoted to the purposes specified by the giver.
Each tract of such land was by the original act of endowment assigned to
a particular object, and a _Muteveli_ or administrator and a _Nazir_ or
inspector were appointed to take care of it. In a large proportion of
cases a high official of the government or household, such as the grand
vizier, the _Mufti_, the _Kapu Agha_, or the _Kizlar Agha_, was put in
charge _ex officio_ in one or the other capacity, on the theory that,
being near the person of the sultan, he would be subject to constant
control. In course of time the _Kizlar Agha_, the grand vizier, and
the _Mufti_ found it necessary to organize the properties under their
charge by holding private Divans of the subordinate administrators and
inspectors, and by appointing _Mufettishes_, or special judges, each with
a staff of subordinates and travelling inspectors.[638]
Although every tract of land was assigned for a definite object and
placed under specified guardians, the _vakfs_ were a matter of public
record, and the accounts of all were kept by the treasury department in
the appropriate bureaus. The subjects who lived on _vakf_ lands seem to
have been better treated than those on lands of other sorts, just as in
the West in the Middle Ages the serfs of the church were often better off
than other serfs.[639] There were three classes of _vakfs_,—the regular
_vakfs_ of the mosques, the _vakfs_ for charitable purposes, and the
customary _vakfs_ of the mosques. The last were chiefly in the nature of
investments of the funds of the mosques, and were according to _Kanun_
rather than _Sheri_.[640] In the second class were included endowments of
schools, libraries, hospitals, bridges, fountains, caravanserais, public
baths, convents for dervishes, and the like. The narrow provision of the
Ruling Institution for public service was in this way supplemented.[641]
The first class deserves further attention.
The chief material unit in connection with the Moslem Institution was the
mosque. Each great mosque was a large house of worship, with a group of
smaller institutions clustered about it, such as colleges, law schools,
hospitals, insane asylums, and soup-kitchens. For the support of these
and of all persons who conducted them, the income from the _vakfs_ of
the mosque was applied. In many cases the lands which had belonged to
Christian churches before the Ottoman conquest were assigned as _vakfs_
for the support of the mosques into which the churches were converted.
For example, the grounds of the sultan’s principal palace had belonged
to the church, and were assigned as _vakf_ to the mosque of Aya Sofia.
When Mohammed II took them for his palace he pledged a revenue of one
thousand and one aspers a day to the great mosque.[642] This church was
one of eight in the city of Constantinople which were so treated.[643]
The revenue of Aya Sofia was estimated at two hundred thousand ducats a
year.[644] The income of the principal mosques being much larger than
the expenses, a considerable portion of the surplus was used by the
guardians for their own benefit, although they were supposed to receive
no compensation, but to labor for the love of God. The fact is that
many of the sultan’s _kullar_ provided an inheritance for their sons
and descendants by setting apart for specific purposes lands in _vakf_,
of which the desired persons should be administrators, it being clearly
understood that a portion of the income should be retained by them.[645]
The remainder of the surplus was held in a special treasury by the
appropriate bureaus, or was reinvested in customary _vakfs_, or was lent
to the government. The _vakfs_ as a whole supported all the official
members of the Moslem Institution, except that the judges derived much
of their income from fees and fines.[646] The treasury department
received and controlled all the revenues from _vakfs_, and paid from the
appropriate funds all who were duly certified as recipients of salaries
and pensions.
All the _Ulema_, in connection with their support from semi-public funds,
possessed the noble privilege of immunity from taxation. Since the
rendering of justice was in their hands, they had their own justice. In
addition, their property was not subject to confiscation; and, since they
were not _kullar_, it passed by inheritance to their relatives and never
to the sultan. All these privileges gave the learned class in the Ottoman
Empire the prestige of nobility, besides great financial advantage.[647]
THE EDUCATIONAL SYSTEM
Like the Ruling Institution, the Moslem Institution contained and
embodied an educational system which was of its essential structure.
Through it, from the time of Mohammed II, the great majority of the
members of the institution, including all who expected promotion,
were required to pass; accordingly, they bore as a body the name of
the _Ulema_, or learned men.[648] The schools, supported by _vakfs_
and attached to mosques, were in three grades: the _mektebs_ or
primary schools, known in the sixteenth century as _okumak-yerleri_ or
reading-places; the ordinary _medressehs_ or colleges; and the higher
_medressehs_ or law schools, of university grade. The _mektebs_ taught
Arabic reading and writing and the Koran; the _medressehs_ gave a course
of ten studies resembling the Seven Arts of the West;[649] the law
schools taught the group of sciences connected with the Koran and the
_Sheri_ and including both law and theology.[650]
There was no compulsory education; nor could the system, by reason of
the individual character of its foundations, be universal for Mohammedan
children. But it may be supposed that any Moslem parent, the inhabitant
of a town of some size, who desired his son to learn the rather difficult
art of reading and writing Turkish and Arabic, or even to enter upon a
learned career, was not devoid of an opportunity. Furthermore, where
primary schools existed the instruction was free, and some students were
even fed and lodged;[651] the students in the _medressehs_ were also
partially supported, and those in the law schools received a sufficiency.
This system, which dated back at least to the twelfth century in Moslem
lands, probably in the Ottoman Empire in the sixteenth century gave
better opportunity for education to Moslem boys than was afforded to
Christian children in any land until a much later date. The Ottomans
believed thoroughly in education; but, unfortunately, their conservatism
was in course of time to turn a beneficent institution into a harmful
one. No change of consequence, either in methods of teaching or in
subjects of study, was permitted from century to century; hence the
training that had once carried its earnest pupils to the forefront of
human knowledge was in time to hold them firmly at a stage which the rest
of the world had long passed through and left far behind.
The _medressehs_ were very numerous in the empire;[652] the mosque of
the Conqueror had eight, that of Suleiman five. It was Suleiman who
set the gradations of the system in their final form. All who aspired
to any official position in the Moslem Institution must pass through a
_medresseh_ of some degree. On first entering they were called _Softas_,
or more properly _Sukhtas_, as those who were _inflamed_ with the
desire for learning. The students were in different grades, but there
seems to have been no fixed number of years of study; the instruction
being largely individual, each could proceed as rapidly as he was
able. On finishing, they received a sort of master’s degree and were
called _Danishmend_, which appears in several of the early sources as
_Talisman_.[653] Such students as were content to teach primary schools,
or to attend to ecclesiastical duties, needed to study no longer.
Those who aspired to become jurists or judges had to pursue a long course
in law in the higher _medressehs_. At the end of this time they were
examined personally by the _Mufti_, or chief jurist, and if successful
they were dignified with the title of _Mulâzim_, or candidate. Those who
did not aspire to the higher judicial positions ended their preparation
at this point. The more ambitious sought appointment, for which they were
now qualified, as _Muderisler_, or professors, in _medressehs_ of low
grade. The _Muderisler_ received large salaries, which increased as they
rose. They were in three classes,—the _Muderisler_ of Constantinople,
of Adrianople and Brusa, and of the other cities of the empire. The
_Muderisler_ of Constantinople numbered about four hundred; they were in
ten grades, distinguished according to the subjects which they taught.
Those of other cities than the capital, and those at the capital who
did not pass through all the grades, became either jurists or judges
of lesser degrees. Those who wished to reach the higher judgeships
were obliged to pass through all ten grades. Since this was so long a
process as regularly to bring a man to gray hairs before he reached the
top, the rigid grading early began to be circumvented by the practice
of inscribing the sons of _Ulema_ as _Muderisler_ while they were very
young, substitutes being hired to teach in their places.[654] By the age
of thirty or forty they would thus be able to attain high position. A
continuance of this process, combined with the immunities and privileges
of the _Ulema_, was in time to lead to great accumulations of wealth in
the hands of a few families, who would be able to keep most of the high
judicial offices within their own numbers.
CLERGY, SEIDS, AND DERVISHES
The clergy of the Ottoman nation were, as has been shown, of no great
education, and they seem to have possessed less influence than the
priests of any other religion.[655] They were in five classes: the
_Sheiks_, or preachers; the _Khatibs_, or leaders of Friday services; the
_Imâms_, or leaders of daily services; the _Muezzins_, who intoned the
call to prayer; and the _Kaims_, or caretakers of the mosques.
The _Seids_, also known as _Emirs_ or _Sherifs_, were a class apart
among the Ottomans. They were not properly members of the _Ulema_,
unless, like others, they passed through the schools; they owed their
distinction rather to a real or assumed genealogy which carried their
ancestry back to the Prophet Mohammed. They alone were privileged to
wear a green turban. They were numerous; but the claims of many were
doubted, and some of them seem to have possessed reputations that were
far from savory.[656] They constituted the only hereditary nobility among
the Ottomans, but their privileges appear to have been personal rather
than financial: they were not to be struck, for example, on penalty
of severe punishment, and they had their own justice. Great honor was
shown to two members of this nobility, descendants of the Prophet:
to the _Mir-Alem_, the sultan’s standard-bearer, who was regularly a
_Seid_, and had precedence of all the officers of the army; and to the
_Nakib ol-Eshraf_, head of the _Seids_, who ranked second in the Moslem
Institution, and at the ceremonies of Bairam had precedence even of the
_Mufti_. The _Nakib ol-Eshraf_ was appointed by the sultan for life;
that member of the _Ulema_ who was a _Seid_ and who ranked highest when
the place fell vacant was ordinarily chosen. He had a staff of officers
and clerks in the capital and the provinces, and was head of the separate
jurisdiction of the _Seids_. Under the sultan he held despotic authority
over all _Seids_; and, when the sovereign ordered the punishment or death
of one of them, the _Nakib ol-Eshraf_ was commissioned to carry out the
execution.
Dervishes also were not members of the _Ulema_. They were of many orders,
though sixteenth-century observers seem to have been impressed with but
four.[657] They represented in Islam the monks, the hermits, and the
begging friars of Christianity. Through them heresies spread, uprisings
were concocted, mobs were gathered, and holy war was preached. On more
than one occasion they endangered the power of the government.[658] Many
were honest, God-fearing folk, while others were scarcely more than
tramps and wandering thieves.
Clergy, _Seids_, and dervishes represented the merely religious side
of the Moslem Institution. Islam was fundamentally a religion without
priests, monks, or nobles; and these persons never grew to possess
permanent influence and power in the Ottoman state.[659]
JURISTS AND THE MUFTI
A number of the _Ulema_ who had finished the law course, and who at some
previous time had chosen to become counsellors and jurists rather than
to take up the severer and more active judicial career, constituted a
distinct body, the _muftis_, who were held in high esteem. One of these
was assigned as associate to the judge of every important city, to the
number of about two hundred in all, while others were counsellors for
the _Beylerbeys_ and _Sanjak Beys_. Appointed for life, they lived in
retirement, having no initiative of action. When the judge, _Bey_, or any
private citizen, confronted by a case or other matter which involved a
learned knowledge of the Sacred Law, submitted to one of them a question
in writing, usually in the form of a hypothetical case, it was the duty
of the _mufti_, after careful consideration of the question in the light
of the law books of the school of Abu Hanifa, to give an answer that
applied the Sacred Law to the matter concerned. These answers, which
were called _fetvas_, were usually extremely concise and unaccompanied
by reasoning; they were prepared and sealed in solemn form.[660] When a
judge or a _Bey_ proposed to his _mufti_ a question touching a pending
law case, the _mufti’s_ response ordinarily settled the case. Private
citizens who obtained _fetvas_ ordinarily did so to help their causes
in pending law suits; here again a pertinent question and answer would
usually settle the case. Since there was no class of professional
lawyers, the _muftis_ were a necessary and very useful body.
In ordinary cities the _mufti_ ranked after the judge. This was not the
case in Constantinople, where the sultan and his officers of government
frequently had questions to present which touched matters of the highest
public importance. As a consequence the _mufti_ of Constantinople became
_par excellence_ the _Mufti_. Mohammed II assigned to him also the title
of _Sheik ul-Islam_, the Ancient of Islam, which in later times was to
become his ordinary title. The _Mufti_ was not regularly chosen from
among his fellows, but was usually advanced by the sultan from the active
judicial service.[661] He had the right to appoint and promote all the
other _muftis_ of the empire. A special bureau called the _Fetva-khaneh_
was created by Suleiman to assist the _Mufti_ in preparing decisions.
The _Mufti_ was definitely constituted by Suleiman the head of the
_Ulema_;[662] and as such he outranked all officials of government,
except that he yielded place to the grand vizier on ordinary occasions.
He was almost the equal of the sultan himself, since he was the expounder
and representative of the Sacred Law, which was above the sultan.
Bayezid II was accustomed to stand to receive the _Mufti_, and to give
him a seat above his own.[663] Early in Suleiman’s reign it was said,
“The Turk shows his [_Mufti_] the greatest reverence of any man in
his realm, because he represents justice and the image of God.”[664]
Sixteenth-century Westerners compared the _Mufti_ with a “very great
cardinal,”[665] but more often with the pope.[666] The _Mufti_ had,
however, no temporal authority and no active part in affairs; like
his brethren in lesser cities, he could give responses only when his
opinion was asked. He could, however, rightly be compared with the pope
in dignity and in the magnitude of the matters with which he dealt. His
alone was the right to proclaim that war should be begun, and to send
out preachers to declare that the war was holy and incumbent on all
Moslems. He was frequently consulted by the sultan as to the conformity
of proposed _Kanuns_ with the Sacred Law.[667] In his hands rested the
extreme responsibility of pronouncing that a sultan had transgressed
the Sacred Law and ought to be deposed. In short, though he could claim
no divinely delegated power to create new rules of faith or law, he was
the final earthly authority in the interpretation of the Sacred Law as
completed by Mohammed the Prophet. He exercised a function similar to
what in the United States of America is the highest office of the Supreme
Court,—the power of defending the Constitution. In this capacity the
_Mufti_ often withstood the sultan. _Urf_ was subordinate to _Sheri_,
and in case of conflict the former must yield; therefore the sultan, who
embodied the former, could not override the _Mufti_, who represented the
latter. A century after the time of Suleiman it was said:—
“The _Mufti_ is the principal head of the _Mahometan_ Religion or Oracle
of all doubtful questions in the Law, and is a person of great esteem
and reverence amongst the _Turks_; his Election is solely in the Grand
Signior, who chuses a man to that Office always famous for his Learning
in the Law, and eminent for his vertues and strictness of Life: his
Authority is so great amongst them, that when he passes Judgment or
Determination in any point, the Grand Signior himself will in no wise
contradict or oppose it....
“In matters of State the _Sultan_ demands his opinion, whether it be in
Condemnation of any great man to Death, or in making War or Peace, or
other important Affairs of the Empire; either to appear the more just
and religious, or to incline the People more willingly to Obedience. And
this practice is used in business of greatest moment; scarce a Visier
is proscribed, or a _Pashaw_ for pretence of crime displaced, or any
matter of great alteration or change designed, but the Grand Signior arms
himself with the _Mufti’s_ Sentence; for the nature of man reposes more
security in innocence and actions of Justice, than in the absolute and
uncontroulable power of the Sword. And the Grand Signior, tho he himself
is above the Law, and is the Oracle and Fountain of Justice, yet it is
seldom that he proceeds so irregularly to contemn that Authority wherein
their Religion hath placed an ultimate power of Decision in all their
Controversies.”[668]
The power of the _Mufti_ in the sixteenth century may be illustrated by
one or two instances. In the early years of the century, shortly before
the appearance of the Reformation movement in Western Europe, the Ottoman
Empire was threatened by the presence of large numbers of heretics in
Asia Minor, simultaneously with the rise of a strong Mohammedan heretical
power in Persia. Selim the Grim disposed of the heretics in his dominions
by wholesale execution,[669] and punished, though he failed to crush,
the Persians by the defeat of Khaldiran and the annexation of a large
part of their territory. After he had got rid of Mohammedan heresy in his
dominions, he was impressed with the absence of unity occasioned by the
presence of the Christian subjects.[670] Accordingly he decided to order
all these Christians to accept Islam on pain of death. To say that he
desired to execute the Christians of his dominions would be to put the
emphasis in the wrong place. He seems rather to have had in mind such a
process as was carried through in Spain in the course of the sixteenth
century, as a result of which none were left in that land who professed
another than the dominant religion.
But here the _Mufti_ Jemali intervened decisively. He had readily given
a _fetva_ authorizing the extermination of the heretics as in accordance
with the Sacred Law, and he was later to sanction the Persian and the
Egyptian wars. In this case, Selim, it is said, deceived him by a
hypothetical question into giving a response which might be interpreted
to authorize the forcible conversion of the Christians. After the order
was issued, however, Jemali, awakened to the situation, put the Greek
Patriarch in possession of a sufficient defence by showing him that the
Sacred Law provided that Christians who had accepted Mohammedan rule and
agreed to pay _kharâj_ and _jizyeh_ (land tribute and poll-tax) were,
aside from certain regulations, to be left unmolested in the exercise
of their religion. This provision the Patriarch, as instructed by the
_Mufti_, claimed to be an irrevocable and eternal compact; therefore,
he urged, since Selim’s intention was contrary to it, his purpose
was unlawful and must be abandoned. The argument prevailed, and the
Christians were not disturbed as to their faith.
It may be remarked that Selim’s idea was an excellent one from the
point of view of statesmanship, and would, in the end, have resulted
in a great advantage to the Moslem Institution. As pointed out in the
first chapter, the Christian churches in the Ottoman Empire constituted
a group of organizations that were parallel and rival to the Moslem
Institution; hence their removal would have left it a free field. Whether
its unopposed action would, in the long run, have been an advantage to
the empire and to the world is a matter for speculation which would be
out of place here; but as a state the Ottoman Empire would have been
notably unified by the clearing away of these institutions. They were
old, strong, and of a tenacious vitality; in them centered the hopes and
aspirations of the subject Christians; while they persisted, complete
amalgamation of the population was impossible; they were to keep alive a
sentiment of nationality and separatism that three centuries later was
to break off great sections from the empire. It seems clear, then, that,
had Selim been able to carry out his purpose, the history of the Levant
since his time would have been very different from what it has been. But
the _Mufti_, as guardian of the Sacred Law, was right. The position of
the Christian subjects rested on a firm constitutional foundation.[671]
The Prophet Mohammed himself, nine centuries before Selim, had made the
religious and social unity of the Ottoman Empire forever impossible.
He had also made political unity impossible at that time; for in the
sixteenth century political, apart from religious, unity was not
understood in either the East or the West. Only in the twentieth century
was Turkey to arrive at a new hope of political unity through an attempt
to remove religious differences from a position of great influence upon
the state.
Another instance of the _Mufti’s_ power occurred in the reign of
Suleiman, who, as a willing servant of the Sacred Law, freely recognized
the greatness of the _Mufti’s_ position. The _Mufti_ Ebu su’ud was one
of the most distinguished ornaments of the Legislator’s reign. He had
passed through all the stages of advancement among the _Ulema_, and had
been _Kaziasker_ eight years when he was constituted _Mufti_. He wrote a
great commentary on the Koran, and it was he who collected the best-known
_Kanun-nameh_ of Suleiman.[672] This man was closely connected with
one of those sorrowful events which made the reign of Suleiman, great
as it was in victory, splendor, and learning, equally great in tragic
ruin of hope. Suleiman must have passed through many hours of torturing
indecision before he determined upon the execution of his eldest son,
Mustapha; and in so great a matter he needed to consult the guardian of
the Sacred Law. The story of the part which the _Mufti_ played shall
be told by Busbecq, who appears for the last time in the pages of this
treatise:—
“Solyman had brought with him [to Amasia, where he joined the army] his
son’s death doom, which he had prepared before leaving home. With a view
to satisfying religious scruples, he had previously consulted his mufti.
This is the name given to the chief priest among the Turks, and answers
to our Pope of Rome. In order to get an impartial answer from the mufti,
he put the case before him as follows:—He told him that there was at
Constantinople a merchant of good position, who, when about to leave home
for some time, placed over his property and household a slave to whom he
had shown the greatest favour, and entrusted his wife and children to his
loyalty. No sooner was the master gone than this slave began to embezzle
his master’s property, and plot against the lives of his wife and
children; nay, more, had attempted to compass his master’s destruction.
The question which he (Solyman) wished the mufti to answer was this:
What sentence could be lawfully pronounced against this slave? The mufti
answered that in his judgment he deserved to be tortured to death. Now,
whether this was the mufti’s own opinion, or whether it was pronounced at
the instigation of Roostem or Roxolana, there is no doubt that it greatly
influenced Solyman, who was already minded to order the execution of his
son; for he considered that the latter’s offence against himself was
quite as great as that of the slave against his master, in the case he
had put before the mufti.”[673]
The _Mufti’s_ power in reality went beyond the field of interpretation
and entered upon that of legislation. It is well known how much the
Supreme Court of the United States of America has extended the powers of
the federal government by the interpretation of the Constitution. The
_Mufti_ acted similarly, though with less freedom, in interpreting the
Sacred Law. His power in this direction was recognized by some Ottoman
Mohammedans: “The _Mufti_ hath a spacious Field for his Interpretation;
for it is agreed that their Law is temporary, and admits of Expositions
according to times and state of things. And though they Preach to the
People the perfection of their _Alchoran_; yet the wiser men hold, that
the _Mufti_ hath an expository power of the Law to improve and better it,
according to the state of things, times and conveniencies of the Empire;
for that their Law was never designed to be a clog or confinement to the
propagation of Faith, but an advancement thereof, and therefore to be
interpreted in the largest and farthest fetched sense, when the strict
words will not reach the design intended.”[674]
The _fetvas_ of the _muftis_ amounted in practice to a body of
legislation which was intermediate between the _Sheri_ and the _Kanuns_:
they partook of the sacred character of the former, as being based
directly upon it; they were, like the latter, of a modern and practical
nature derived from recent application to actual cases. In the _fetvas_,
however, nothing radical or startling could ever be attempted; novel
features were obliged to be of a most inconspicuous character. The
_fetvas_ as a whole caused some development in the Sacred Law, but their
combined additions were altogether too slight to keep it abreast of the
march of events.
In reality, the _muftis_ occupied the most influential position in the
Moslem Institution and perhaps in the Ottoman state. Usually inferior
to judges and officers of government in income and display, and giving
no direct impulse to affairs, they nevertheless wielded the greatest
continuous power in the state,—the quiet, steady, almost changeless,
almost irresistible, force of Mohammedanism. They were “guardians of
the laws” in as full a sense as any Greek could wish. Their authority
rested, first, on the acceptance by the entire Moslem population of the
absolute supremacy of the Sacred Law, and, second, on the recognition by
the same population that they, who had acquired learning in the Law by
long years of arduous mental labor, and who had chosen to continue in
its study rather than take up its more active and lucrative application
in service on the bench, were the persons through whom its supremacy on
earth was rightly to be maintained. Thus by popular consent the _muftis_
constituted the conservative, regulative force in the Ottoman state. They
were destined to contribute very largely to the empire’s durability,
which, despite frightful shocks, disasters, and losses, was to continue
far beyond the expectation of the world.
The _muftis_ did their work only too well. The idea of the changelessness
of the Sacred Law was essentially hostile to progress. Although
considerable flexibility was possible under its provisions, the
flexibility lay in its application to particular cases, and hardly at all
in the law itself. When the Ottoman power began to rise, scholasticism
was at its height, both in Christianity and in Mohammedanism. From
this blighting theological and philosophical bondage, which tended to
extend its deadening sway over all the activities of the human spirit,
Christendom was delivered by the Renaissance and the Reformation. The
Ottoman mind, on the contrary, continued to be held under it till the
most recent years. That it remained so long in bondage, with scarcely a
struggle to escape, was due very largely to the authority of the _Ulema_.
They who accomplished much toward building the Ottoman state into a solid
structure, and toward maintaining it against foes without and within,
also held it nearly stationary while the rest of the world moved on.
THE JUDICIAL SYSTEM[675]
The judges who belonged to the corps of the _Ulema_ had jurisdictions
that were based upon territory, and that covered the whole empire to
an even wider extent than did the administration of the government.
The Crimea and North Africa, though under vassal governments, formed
part of the Ottoman judicial system.[676] The tribunals of the judges
seem to have been competent for all kinds of cases, whether civil or
criminal, and whether covered by the _Sheri_, the _Kanuns_, _Adet_,
or none of these.[677] But, as has been seen, they were not competent
to try all persons. The _kullar_, the _Seids_, and the members of the
foreign colonies had their separate systems of justice; even the subject
Christians, in matters between themselves, had their own ecclesiastical
tribunals to which they regularly resorted. Cases concerning the
administration of certain groups of _vakf_ lands were tried in special
courts, which were, however, presided over by members of the regular
judicial body. The fief-holders had seigniorial jurisdiction in certain
matters; and the officers of local government seem also to have had
independent right to decide cases outside the sphere of the Sacred Law,
whether covered by _Kanun_, _Adet_, or unprovided for.[678] The judges
of the Moslem Institution, therefore, tried all cases involving the
Sacred Law which arose within the empire, and which were between Moslem
and Moslem or between Moslem and Christian (except when the Moslem was a
_kul_ of the sultan or a _Seid_), as well as a large proportion of the
cases which were outside the sphere of the Sacred Law.
Nearly all judges were judges of cities, having jurisdiction also over
the surrounding territory;[679] exceptions were the _Mufettishes_ of
the _vakf_ lands, the judge who accompanied the _Kapudan Pasha_ on his
annual cruise to the Aegean Islands, the two _Kaziaskers_, and the
grand vizier. The judges were all carefully graded in five principal
classes, three of which were each again subdivided into several groups.
By another grouping, on a geographical basis, they were in two divisions
under the _Kaziaskers_ of Europe and Asia. The five classes were the
greater _Mollas_, the lesser _Mollas_, the _Mufettishes_, the _Kazis_,
and the _Naibs_. The general name for judge was _Kazi_, and the popular
title of respect for them all was _Molla_;[680] but the official titles
were as described above. In general, a _Danishmend_ who aspired to the
judicial career chose while in the law course, according to his ambition
or ability, which of the five classes he would strive to enter and after
entering one of them he could not pass to another. Each had its ladder of
promotion.
The greater _Mollas_ were in six groups: the _Kaziasker_ of Rumelia;
the _Kaziasker_ of Anatolia; the judge of Constantinople; the judges of
Mecca and Medina; the judges of Adrianople, Brusa, Cairo, and Damascus;
and the judges of the three suburbs of Constantinople,—Galata, Scutari,
and Eyub,—and of Jerusalem, Smyrna, Aleppo, Larissa, and Salonica. These
seventeen were in later times nominated by the _Mufti_ for approval by
the grand vizier and confirmation by the sultan; in Suleiman’s time
the members of the last four groups were nominated by the _Kaziaskers_
subject to the approval of the pashas.[681] Their positions were
originally held for life, or until promotion, or during good behavior;
and they rose by promotion from group to group. Each had a number of
assistants, clerks, book-keepers, treasurers, and the like. They seem
to have had superior jurisdiction over the inhabitants, and control
of the lesser judges, in the entire dominion of the officer of local
government—_Beylerbey_ or _Sanjak Bey_—who resided in their city.[682]
The _Kaziaskers_ had each a large corps of subordinate officials. They
controlled the appointment of the judges of all other classes, subject
to the confirmation of the sultan. The five _Ulema_ who held high office
near the person of the sultan—his _Hoja_ or teacher, the head physician,
the head astrologer, and the two imperial _Imâms_—were reckoned as
adjunct members among the _Mollas_ of the first class. They had no small
influence on the destiny of the empire, as being the most disinterested
and trusted persons who had the ear of the monarch.
The lesser _Mollas_ were the judges of the ten cities of second
rank,—Marash, Bagdad, Bosna-serai, Sofia, Belgrade, Aintab, Kutaia,
Konia, Philippopolis, and Diarbekr.
The _Mufettishes_ were five in number, three representing the _vakfs_ in
Constantinople that were under the _Mufti_, the grand vizier, and the
_Kizlar Agha_, and two representing all three of these exalted officials
in Adrianople and Brusa. Cases concerning _vakfs_ that might arise
elsewhere were taken before the nearest _Kazi_.
The _Kazis_ proper included the vast majority of the judges, to the
number, in D’Ohsson’s time, of about four hundred and fifty, who were
stationed in smaller cities. About two hundred in Europe, in nine groups,
and those in the Crimea and North Africa, were under the authority of the
_Kaziasker_ of Rumelia. About two hundred and twenty-five in Asia, in ten
groups, and thirty-six in Egypt, in six groups, were under the control of
the _Kaziasker_ of Anatolia.[683]
The _Naibs_ were in several groups, as judges of villages, lesser judges
of cities, temporary substitutes for higher judges, and the like. They
ordinarily had no salaries, but lived upon fees and irregular earnings.
A group of these were important in the sixteenth century as a kind of
inspectors of public morals. They purchased their places, and lived upon
fines—and sometimes, it is said, upon extortions—from persons who did not
wish their private lives exposed.[684]
Exercising many of the functions of police and market judges, but not
belonging to the _Ulema_, were the _Muhtesibs_, or lieutenants of police,
of the various cities. Accompanied by soldiers and attendants, they
patrolled the streets and inspected the markets, giving special heed to
weights and measures. If they found that the law had been infringed, they
inflicted punishment, whether financial or corporal, on the spot.[685]
By reason of the duty of applying sumptuary regulations, the office was
often lucrative.[686]
In every court a single judge sat, with his clerks and other
subordinates. Cases were presented by the parties concerned, and
decisions were usually rendered immediately and in very concise form.
The judge coöperated with the _Subashi_ of the city, who brought before
the judge persons that were summoned and who executed the sentences
of the judges,[687] an arrangement in which lay a certain likeness to
the ecclesiastical courts of the West, which might condemn, but left
the execution to the secular arm. Appeal went up to judges higher in
the scale, and finally to the grand vizier.[688] Costs and fines were
moderate, and were fixed by _Kanun_;[689] they constituted, however,
a large part of the income of the judges and their subordinates. The
judges were salaried, and some of them had in addition large amounts of
irregular earnings. The judges attended to all the notarial work of the
empire.
The _Subashis_, _Sanjak Beys_, and _Beylerbeys_ had complete jurisdiction
over all members of the Ruling Institution who resided in their
districts, as well as a more or less undefined authority in cases
controlled by _Kanun_, _Adet_, or otherwise outside the sphere of the
Sacred Law.[690] In capital cases they never proceeded to execution
without obtaining the approval of the judge of the city, in order to
have the sanction of the Sacred Law.[691] The decisions of the judges in
criminal cases were regularly submitted to without a murmur, since it was
felt that the judges represented Mohammed, “wore the robe of God,” and
had power of “sovereign sentence.”[692]
The highest courts were those of the _Kaziaskers_, the grand vizier, and
the Divan. The _Kaziaskers_, besides attending to the cases that were
brought before them in the Divan and at the palace gate after its close,
held court at all other times in their own houses.[693] Mohammed II had
provided that, when cases were brought primarily to them in the city of
Constantinople, those which concerned Moslems should come before the
_Kaziasker_ of Rumelia and those which concerned non-Moslems before the
_Kaziasker_ of Anatolia. The titles of these judges show their original
functions as judges of the armies of Rumelia and Anatolia, offices
which they continued to exercise in time of war. In this capacity,
also, appeals came up to them in time of peace from the _Subashis_ and
_Sanjak Beys_ in matters touching _kullar_. The power of the _Kaziaskers_
had been extended to include the headship of all the judges of their
respective regions, and the appointment of all judges, subject to the
approval of the pashas. In the Divan, and as “Pillars of the State,” they
ranked next to the viziers; they had the first right of audience with
the sultan at the close of each Divan; and until the reign of Suleiman
they had had all the authority over the _Ulema_ that later came to the
_Mufti_. They had immense incomes and were highly honored and esteemed.
The grand vizier was actual head of the Moslem Institution as substitute
for the sultan; accordingly his court was the highest court of appeal for
all ordinary civil cases. It was also, however, like all other courts
in the empire, a court of first instance. He decided great numbers of
cases, large and small, for rich and poor alike. Justice was refused to
no one; it was rendered either by the grand vizier’s own decision, or by
reference for prompt settlement to one of the _Kaziaskers_ or to some
other judge.[694]
The Divan’s principal deliberative business as a court was the trial
of capital cases of great officials. Although many such persons were
executed, it is strenuously denied that Suleiman ever ordered death
without a trial.[695] Nevertheless, the process was usually held in
the absence of the accused person and without his knowledge; he might
be at the end of the empire. In case of conviction a _Chaush_ was sent
to the condemned man’s place of residence, bearing secretly a written
commission, which was given to the nearest official who had power to
execute. The condemned man had at best a few hours in which to settle his
affairs and make his peace with God; then he was executed, and his head
was given to the _Chaush_ to be taken to the sultan as proof that the
mission had been faithfully accomplished. It is said that forty or fifty
heads sometimes reached the court of Suleiman in a single day.[696]
Early in his reign, when filled with pride by his victory over the rebel
Ghazali, and feeling warm friendship toward Doge Loredano of Venice,
he wished to send the rebel’s head to the Doge by a special embassy,
and was dissuaded only with great difficulty by the Bailo of Venice in
Constantinople.[697] After Mohacs two thousand heads were set on poles
about his tent.[698] To Western eyes it seems a blot upon the noble and
generous character of Suleiman, that he treated the heads of his enemies
and of condemned criminals after the fashion of his time and country.
Aside from the question of barbarity and cruelty, however, the policy
of summary and certain execution of offenders was essential to the
maintenance of the Ottoman Ruling Institution in power. It was a process
of pruning, by which every dangerous growth was cut away. Had it not been
done, the system would have seemed today more commendable, but it could
hardly have failed to perish quickly. A century after Suleiman the remark
was made that what preserved the Ottoman state was the quickness and
severity of justice for crimes which had relation to the government.[699]
What was the general character of Ottoman justice? It is to be feared
that it was often venal. A few years after Suleiman’s death a Western
writer expressed the opinion that the only incorruptible courts were
those of the grand vizier and the Divan.[700] Another charged that
Christian subjects had unfair treatment before the courts, in which they
were not allowed to testify, since some of the Moslems considered it
almost a meritorious religious act to turn a case against a Christian by
false testimony.[701] It is probable, however, that the Ottoman courts
in Suleiman’s time were reasonably just. The judges were well-paid,
highly honored, and carefully inspected by honest men who were sent out
annually by the _Kaziaskers_;[702] nevertheless, many of them no doubt
yielded to the same desire for money that afflicted the _kullar_. In at
least one respect the Ottoman courts were highly to be commended: there
was a minimum of trouble because of the “law’s delay.” Cases were always
decided promptly, and in clear and simple terms. An unjust decision
quickly given is often less expensive and less annoying in the long run
than tardy justice.[703]
Some Western observers were as strongly impressed with the superiority
of Ottoman justice over that in their own lands as they were with the
superiority of discipline in the Ottoman camp, or of promotion by merit
in the Ottoman government service.[704] One of them said: “To understand
at length their diligence in justice, it would be necessary to write more
than I have done; and further, since there is nothing here [that is, in
France] so near immorality as the processes and extortions which men do,
it gives me shame to recite so great diligence among people proclaimed
wicked; this it is, without any doubt, which makes them so to rule,
conquer, and keep.... Of Sultan Suleiman, who rules at present, I do not
wish to speak, for his deeds are not yet accomplished, and he cannot yet
be praised, except for his humanity, justice, and fidelity.”[705]
The law which the judges administered was primarily the Sacred Law,
as given in the Koran and the traditions of Mohammed, but especially
as codified by the great doctors of the school of Abu Hanifa, and as
interpreted in collections of the _fetvas_ of great jurists. Next
the judges applied the _Kanuns_ of the sultans, and the customs and
immunities of the regions in which they served.[706] Finally, they had a
considerable field in which to make use of equity: “The good sense and
prudence of judges trained in reasoning,” says Postel, “supplies and
decides many things that are not written.”[707] The only resemblance to
the Anglo-Saxon system of case law seems to have been the use of the
_fetvas_ of the _muftis_. Since the hearing of ordinary cases was summary
and decisions were rendered very briefly, no extended reports were
possible. The absence of printing, which was not introduced into Turkey
until the eighteenth century, aided further toward making a general use
of the decisions of judges as precedents practically impossible. In
those days judges relied upon their own knowledge of law and custom,
on the few books they might possess, on their sense of equity, and, in
matters of difficulty, on the opinions of the local _muftis_. Since
the judges were not each surrounded by a group of trained and keenly
watchful lawyers, but acted alone except for their own subordinates,
there was more opportunity for unjust decisions by a dishonest judge than
among English-speaking peoples. Or, to state the matter differently,
Ottoman justice depended more upon the integrity of judges than does
Anglo-Saxon justice. Although the Sacred Law was rigid, its application
to the individual case was adjustable, and adjustment was ordinarily
accomplished by the decision of one man. Judges therefore possessed great
power over the fortunes of individuals, a fact which in part explains the
great deference and honor that was shown them.
THE MOSLEM INSTITUTION AS A WHOLE
A few words of summary will sketch the outlines of the complete Moslem
Institution in the Ottoman Empire. It represented and maintained the
entire system that was based upon the life and work of the Prophet
Mohammed. This system claimed to be sufficient for all sides of the
temporal, as well as for the eternal, life of all individuals, and
for the life of the state which they constituted; it also provided a
place for subject peoples and resident foreigners of other religious
affiliations. The power of the institution extended over the whole
empire, even beyond the limits of political control.
The Moslem Institution was firmly grounded in the allegiance, the
fundamental beliefs, and the affections of the entire Moslem-born
population of the empire. It is true that not all Moslems believed
exactly alike, nor did they all practise the Sacred Law according to the
system of Abu Hanifa. But they were all fiercely and proudly Moslems,
and devoted to the supremacy of the Mohammedan system in this world, as
expressed in an institution which might not be what every one wished,
but which revealed and maintained the power of Islam. All the Moslems of
the empire were in a sense members of the institution. In the sixteenth
century any one of them might hope to see his son mount to a very high
place within the organization, since industrious study combined with
native ability was all that was demanded. Opportunities in the way of
schools were present nearly everywhere; and a student who once had shown
his aptitude would be carried forward, without expense to his relatives,
by funds which had been provided by sultans and pious individuals “for
the good of their souls.” The Moslem Institution was fundamentally
democratic. It was united in complete solidarity and perfect harmony with
all in the empire who were attached to the doctrines of the Prophet. All
believers were equal before God, and all were supposed to have equal
opportunity to rise to places of honor in the system.
Distinction and membership in the institution proper rested upon birth
in the case of the descendants of Mohammed, upon profession of piety and
special religious service in the case of the dervishes, but upon learned
knowledge of the Sacred Law in all positions of public influence and
importance. The three highly-honored classes of teachers, jurists, and
judges were trained in the same superbly-planned educational system, in
the same text-books and the same ideas. Whether in Constantinople or
Cairo, the Crimea or Algiers, Budapest or Bagdad, old, grave, wise, and
learned professors, jurists, and judges taught, interpreted, and enforced
the same wide-reaching and changeless Sacred Law. As teachers, the
_Ulema_ conveyed to children and youth, in impressible years, that which
they had themselves received. The same learned persons, after fixing
each part of the whole round of legal studies in their minds by periods
of teaching, were advanced to places where they dealt not with boys, but
with men, where their work affected not the fortunes of individuals,
but the destinies of the empire. Yet their influence was exerted
strenuously in the same direction throughout, to impress and perpetuate
the changeless body of ideas in the Sacred Law. Professors, jurists,
and judges alike were, in all that they did and throughout their lives,
fundamentally teachers. The _Ulema_ taught all the Moslems of the empire,
from the young child to the aged sultan. They maintained schools for the
young; places of worship, courts, and offices of consultation for adults.
Every important officer of administrative government had a judge and a
_mufti_ at his elbow. Not only was the sultan himself in close relations
with the _Kaziaskers_ and the _Mufti,_ but he had always a spiritual
adviser to whom he showed great deference, and who bore the significant
title of the sultan’s _Hoja_, or teacher. There was an aspect in which
the Moslem Institution, based upon the Moslem population of the empire,
fitted the government as hand fits glove. This figure, moreover, can be
pressed beyond the mere comparison of shape; the hand is of much the same
efficiency with or without the glove, while the glove is useless without
the hand; furthermore, the hand may live to wear a succession of gloves.