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.
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]
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.
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]
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 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.
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.