Case: Translation of the Court Record
The woman called Radiya bt. Abd Allah, of Georgian origin and medium stature, appeared in the courthouse. She is known as the former slave of her recently deceased master, Küçük Hasan Beşe. She initiated a claim against [fakhr aqranihi – pride of equals] al-Hajj Sinan Beşe ibn Hasan, the legal guardian (wasī) of Küçük Hasan’s minor orphans Mustafa, Hasan, and Aisha, and against Shaykh Ahmad b. Shaykh Abd al-Qadir, the legal representative (wakīl) of Hafiza bt. Receb, Küçük Hasan’s widow. Her wakīl-ship is confirmed in the below-mentioned matter. Radiya insisted in her claim that during the lifetime of her aforementioned master Hasan Beşe, about 10 months prior to the current date, she became pregnant by him. The pregnancy continued in her womb for more than four months, and then she miscarried [the fetus], all human features being apparent. [She claims that], because of this, she became “the [slave] mother of a [master’s] child”[1] [umm walad] and that her aforementioned deceased master declared before a gathering of Muslims that “my concubine, the aforementioned Radiya, became pregnant by me and miscarried [the fetus] after four months, all human features being apparent,” about five months before he died and while he was in full possession of his health and faculties. He insisted upon this. Now, the defendants want to include [Radiya] in the estate of the aforementioned deceased without legal right.
[The defendants] were questioned and replied by denying [Radiya’s claim.] They asked Radiya for evidence to support her claim, so she presented two witnesses: Mahmud b. Mahmud and Mansur b. Shams al-Din, who affirmed in the presence of the defendants that the aforementioned deceased, Hasan Beşe, had acknowledged in their presence in full possession of his health and faculties that his concubine, the aforementioned plaintiff Radiya, had become pregnant by him and that the pregnancy had continued in her womb for more than four months, and then she had miscarried the fetus, all human features being apparent. The legal testimony from the two witnesses was accepted by the court.
After the two witnesses had testified thus, our master, the aforementioned judge, let the defendants know that Hasan Beşe had stated during his lifetime that [Radiya] had become pregnant by him and then miscarried after four months, the fetus having all human features. Because of this, she had become a child’s mother [umm walad], and [the hand of others was lifted from her; no one else had a claim to her as property.] She no longer owed anyone anything except legal clientage.[2] So it is his legal right, as the Imam Qadikhan (peace and blessings upon him) mentioned in his Fatāwā, that if he said “this concubine of mine became pregnant by me” or “the child inside her belly is from me,” and then she miscarried, she becomes umm walad. It is made clear in the book Al-Qunya that in the case that “he affirms a month before his death ‘that my concubine is pregnant by me,’ then she miscarries four months after his death with the fetus clearly having all human features, she becomes umm walad.” The judge, may God support his judgements, ruled that she had become an umm walad and free as any free Muslim. He forbade the defendants from interfering with the plaintiff regarding the claim of slavery and forbade the legal cases against her. This occurred and was recorded on the 14th of Rabi’l-Awwal in the year 1090 [25 April, 1679].
Witnesses: [Shuhūd al-hāl]
Mawlana Abd Allah Efendi, ziyda fadlahu [may God increase his knowledge]
Mawlana al-Shaykh Muhammad, ziyda fadlahu
Mawlana al-Shaykh Muhammad Nasreddinzade
Husayn Celebi al-Halabi
Fakhr aqranahu Ali al-Juqdar
Recorded by Mawlana al-Shaykh Mustafa
Commentary:
The case of Radiya bt. Abd Allah emerges from a small cluster of court cases involving the estate and household of a low-ranking Janissary officer in Tripoli in modern-day Lebanon. The cases are held in the second register of the Tripoli Islamic Court Records, which cover the years 1078-1090 hijrī/1668-1679 CE.[3] Like the Islamic court records of most early modern Ottoman cities, these registers contain a mixture of personal-status cases, property transactions, pious endowment deeds, and correspondence with the Ottoman state.[4] This case offers a view into Islamic laws of slavery, manumission, sexuality and reproduction in a middling-elite, early modern household. In particular, it illustrates forms of exploitation endured by female slaves within the household, but suggests that enslaved people could be empowered by the sharī’a court system and had knowledge of the legal strategies available to them under Islamic law. In this case, a female slave successfully wins her manumission after her master’s death. According to the record, she is exploited first by her master for sexual purposes, and subsequently by her master’s widow who attempts to own her as part of her late-husband’s estate. Ultimately, the case offers an example of how the sharī’a court could work in favor of the socially weaker party at the expense of more politically and economically powerful actors.[5] At the same time, the case highlights several ways in which the formulaic structures of the sijills obscure crucial aspects of motive, consequence, and interpersonal relationships between legal actors joined together by blood, affection, and misfortune.
The plaintiff, Radiya bt. Abd Allah, was the concubine of a recently-deceased, low-ranking Janissary officer named Küçük Hasan Beşe. She appeared in the courthouse to raise a claim against her master’s widow, Hafiza bt. Receb, and their children (the orphans of Hasan Beşe). Hafiza was represented in court by Shaykh Ahmad b. Shaykh Abd al-Qadir, while the children were represented by their legal guardian (wasī), al-Hajj Sinan Beşe b. Hasan, who was a Janissary like their deceased father. Radiya seems to have represented herself in court, as there is no mention of a male representative (wakīl).
Radiya’s case presents an unusual, but not unprecedented, twist on a well-known point of Islamic law surrounding slavery and manumission: by the rule of umm al-walad (“the [slave] mother of a [master’s] child”[6]), a female slave who gave birth to her master’s child could expect to be manumitted upon his death. The child, meanwhile, was a freeborn and legitimate heir of the Muslim father. As explained by Mary Ann Fay and Madeline Zilfi, manumission in such a case was likely, and encouraged by law, but was not guaranteed for an umm walad.[7] Radiya’s case is unusual because she had miscarried four months into her pregnancy. Thus, not only was there no “evidence” of her umm walad status (in the form of a baby or visible pregnancy), there was also some disagreement among jurists about whether a miscarriage qualified a slave for this status at all.[8] Thus, while there was widespread consensus among jurists that an umm walad should gain her freedom, Radiya’s umm walad status was not so straightforward.
Küçük Hasan’s widow and the guardian of her minor children wanted to include Radiya as property in Küçük Hasan’s estate. As a female white slave, Radiya was a valuable asset. To avoid being sold, Radiya brought her master’s widow and heirs to court to claim her umm walad status. When Hafiza bt. Receb denied Radiya’s account and asked for evidence, Radiya told the qāḍī that Küçük Hasan had acknowledged her pregnancy and his paternity before a “gathering of Muslims” prior to his death. By declaring the news before a group of Muslim men, Küçük Hasan had created witnesses to support her claim. These witnesses proved to be the crucial factor in Radiya’s success in court. Two men of Küçük Hasan’s acquaintance, Mahmud b. Mahmud and Mansur b. Shams al-Din, came to the court to testify that Küçük Hasan had announced Radiya’s pregnancy and miscarriage “during his life and while still in possession of his faculties.” Their testimony was deemed valid and accepted by the court. Since the testimony of two adult, male witnesses was the standard burden of proof in the sharī’a court system, their testimony was sufficient for the judge to adjudicate in Radiya’s favor. The judge granted her the status of umm al-walad, and thereby her freedom. Perhaps to dispel any remaining controversy surrounding the case, the judge also cited fatwās by two Hanafi jurists, Qadi Khan (d. 1196)[9] and al-Zahidi (d. 1260),[10] that confirmed that a concubine who became pregnant by her master and then miscarried still gained umm al-walad status. The reference to these fatwā collections in the setting of the Islamic court is unusual. But, taken together, the two fatwās address the precise confluence of unusual circumstances–a pregnancy miscarried after four months, a deceased master’s decision to announce the pregnancy of his concubine before death–that might have raised objections to Radiya’s right to claim umm al-walad status.
Additional details of Radiya’s case underscore points of Islamic jurisprudence and prevailing scientific understandings of fetal development that proved crucial to Radiya’s claim to manumission. All references to Radiya’s miscarriage describe the pregnancy as having endured longer than four months, at which point the fetus had “all human features apparent” (mustabin al-khulq). A concubine who miscarried in the early stages of pregnancy, before the fetus was “formed,” did not gain her freedom.[11] The court’s repeated description of the fetus as having all human features apparent was therefore a key point in Radiya’s favor. The Ḥanafī school, which was the official madhhab of the Ottoman state, was the only one of the four main Sunnī madhhabs to require a master to openly acknowledge paternity of his slave’s child; the other three schools assumed that if a slave became pregnant, the child belonged to her master.[12] Ḥanafīsm was the dominant school in 17th century Tripoli, where Radiya’s case unfolded.[13] Thus, Küçük Hasan’s act of declaring Radiya’s pregnancy in the presence of future witnesses fulfilled two important requirements: the Ḥanafī requirement that a master acknowledge paternity, and the need to acknowledge Radiya’s umm walad status in the absence of a child or visible pregnancy.
Finally, it is worth reflecting on the court’s close attention to the timing of Radiya’s pregnancy, which progressed for four months before her miscarriage. Following Galen and Hippocrates, and in accordance with the Qur’ān and ḥadīth, Muslim jurists held that the fetus “became a human being” after 120 days (four months) of pregnancy.[14] The “ensoulment” of a fetus at 120 days was a crucial milestone in Islamic law. Some schools of jurisprudence held abortion to be permissible up to 120 days, but no jurists considered the abortion of an ensouled fetus to be permissible.[15] Radiya’s self-declared miscarriage after four months might be read through another lens if we imagine that the pregnancy ended intentionally (by abortion), rather than by accident, since only the latter case would entitle her to be manumitted. We have no way of knowing whether Radiya’s pregnancy was ended intentionally or unintentionally, but the question of abortion is an important one. Radiya herself may have desired and induced an abortion, or it may have been desired and compelled by Küçük Hasan, or even forced upon her by Hafiza, Hasan’s wife. Given that Hasan arranged for Radiya’s pregnancy and the ensoulment of the fetus to be recognized after his death, Hafiza would appear to be the only party with a motive to end Radiya’s pregnancy (thereby eliminating an heir who would split the father’s inheritance with her children, and further retaining Radiya as property).[16]
Beyond these facts, Radiya’s case raises a number of questions about how slaves and households understood and made use of Islamic law in what might appear to us as highly sensitive matters. Specifically, we might ask why Küçük Hasan opted to create witnesses to support Radiya’s claim to umm walad status, but did not simply manumit her himself before his death? If he did not intend to deprive his wife and children of her service or monetary value (through selling her), then why did he announce her pregnancy and miscarriage publicly, being very careful to describe the pregnancy as continuing just long enough to ensure Radiya’s claim to freedom? Finally, although we may celebrate Radiya gaining her freedom from the court, it is sobering to consider her options as a former slave without the patronage of her master; would she find employment or a good marriage of her own, without Küçük Hasan’s benevolence and connections, and having probably antagonized his widow? Former slaves in Tripoli and elsewhere sometimes inherited property or were married to their former masters’ clients and retainers. As far as we can tell from this case, Radiya was free but she was on her own. The prospects for Küçük Hasan’s widow, Hafiza bt. Receb, were also left in doubt. Just two weeks after the judge ruled in Radiya’s favor, Küçük Hasan’s heirs were back at the Islamic court. He had died with significant outstanding debts, and the family was forced to sell two mulberry orchards on the outskirts of the city to pay his creditors.[17] Could Hafiza contract another suitable marriage while raising three minor children and carrying the burden of her late husband’s debts? Without any further evidence, we are left only with questions and varying degrees of sympathy for the women whose fates were complicated by Küçük Hasan, his death, his debts, and his dalliances.
Notes:
[1] Translation of umm walad from Madeline C. Zilfi, Women and Slavery in the Late Ottoman Empire: The Design of Difference (Cambridge University Press, 2010), 111.
[2] According to Mary Ann Fay, freed slaves remained in a legal state of clientage (wala’) for the rest of their lives to the owner who freed them. Mary Ann Fay, Unveiling the Harem: Elite Women and the Paradox of Seclusion in Eighteenth-Century Cairo (Syracuse University Press, 2012), 87. This may mean that Radiya was entitled to financial support from Küçük Hasan, but the case does not elaborate on the nature of this clientage relationship: “The manumitter acquires responsibility for the payment of diya on behalf of the freedman and qualifies for the role of marriage guardian to his freedwoman or freedman’s daughter.” A.J. Wensinck and P. Crone, “Mawlā,” in Encyclopaedia of Islam, Second Edition, eds., P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, and W.P. Heinrichs. Consulted online on February 19, 2019.
[3] The relevant documents are Tripoli Islamic Court Records (TICR) 2:344 (14 Rabi’l-Awwal 1090/April 25, 1679), 2:347 (28 Rabi’l-Awwal 1090/May 9, 1679), 2:349-351 (five entries, dated 25-30 Rabi’l-Awwal 1090/May 6-11, 1679). The second register of the TICR spans the years 1078 to 1090 hijri (1668 to 1679 CE). The register contains 367 pages, but nine years’ worth of cases are missing for the period between 18 Rajab 1079/December 22 1668 and 5 Rabi’l-Awwal 1088/May 8 1677. Pages 1 through 173 cover cases from 1668, while pages 175 to 367 cover the years 1677 to 1679. This information is noted on page 174 of the register.
[4] For a detailed discussion of the Tripoli Islamic court, see Beshara Doumani, Family Life in the Ottoman Mediterranean: A Social History (Cambridge University Press, 2017), Introduction and ch. 1.
[5] The role of courts in upholding social hierarchy is explored in Boğaç Ergene’s Local Court, Provincial Society and Justice in the Ottoman Empire: Local Practice and Dispute Resolution in Çankırı and Kastamonu (1652-1744) (Leiden: Brill, 2003).
[6] See note 1. Zilfi notes “an often-cited hadith of the Prophet, ‘her child has set her free’”, which she cites from al-Marghinani, Hedaya, 267.
[7] Mary Ann Fay, Unveiling the Harem: Elite Women and the Paradox of Seclusion in Eighteenth Century Cairo (Syracuse, NY: Syracuse University Press, 2012), 81. She could not be sold during her master’s lifetime and would likely be freed upon his death. If she were not freed, she would become part of her master’s estate and could be sold. Only the Ḥanafī school of law required the master/father to acknowledge that the child was his. The other three schools assumed it if a slave became pregnant.
[8] Joseph Schacht, “Umm al-Walad,” in Encyclopaedia of Islam, Second Edition, eds., P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, and W.P. Heinrichs. Consulted online on January 11, 2021.
[9] al-Ḥasan ibn Manṣūr al-Ūzjandī al-Farghānī Qāḍī Khān, Kitāb Fatāwa Qāḍī Khān (Miṣr: Maṭbaʻat Muḥammad Shāhīn, 1865). See also Th.W. Juynboll and Y. Linant de Bellefonds, “Ḳāḍī K̲h̲ān,” in Encyclopaedia of Islam, Second Edition, eds., P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, and W.P. Heinrichs. Consulted online on February 26, 2021.
[10] Najm al-Dīn Abu’l-RajāʾMukhtār al-Zāhidī al-Ghazmīnī, Qunyat al-Munya li-Tatmīm al-Ghunya, Bayerische Staatsbibliothek, Munich, BSB Cod.arab., 289. See also Şükrü Özen, “ZÂHİDÎ,” in Türkiye Diyânet Vakfı İslam Ansiklopedisi, https://islamansiklopedisi.org.tr/zahidi. Consulted online on February 26, 2021.
[11] Basim Musallam, Sex and Society in Islam: Birth Control Before the Nineteenth Century (Cambridge University Press, 1983), 57.
[12] Fay, Unveiling the Harem, 81.
[13] Doumani notes that the Tripoli Islamic court was presided over by a Ḥanafī judge until the late-eighteenth century. See Doumani, Family Life in the Ottoman Mediterranean, 30.
[14] Musallam, Sex and Society in Islam, 57. Musallam discusses the origins and evolution of Islamic theories of fetal development based in Greek and Roman thought. See ibid., 53-59.
[15] Ibid., 57-59.
[16] I base these speculations partially on the case of Shemsigül, a Circassian slave woman in nineteenth century Cairo, who was impregnated by a slave dealer and then sold, in contradiction of Islamic law. The slave dealer’s wife beat Shemsigül to try to force her to miscarry. Ehud R. Toledano, “Shemsigul: A Circassian Slave in Mid-Nineteenth-Century Cairo,” in Struggle and Survival in the Modern Middle East, eds., Edmund Burke III and David Yaghoubian (UC Press, 2006), 48-63.
[17] Küçük Hasan’s debts are settled over the course of five entries spanning about 5 days: (TICR) 2:349-351 (five entries, dated 25-30 Rabi’l-Awwal 1090/May 6-11, 1679).