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11. Rules regarding Manumission and Sale of Slaves

CHAPTER XI
RULES REGARDING MANUMISSION AND SALE OF SLAVES

It has been seen in the preceding pages that a very prominent feature of Muslim polity, society and economy in this country was its slave system. Muslim history throughout the country and indeed in this world is incomplete without its slaves. The two main sources of obtaining slaves were by capture and purchase. The two main means of their disposal were by manumission and sale. We shall here briefly discuss the problems and rules associated with these two aspects.

Manumission of slaves was a pre-Islamic Arab custom for earning religious merit. It was recommended by prophet Muhammad also. His advice finds mention in both the Quran and the Hadis.  Manumission was widely practised in India for various reasons and causes. For instance, many are the blessings to those who fast during Ramzan, but if neglected intentionally the offender must expiate his guilt by the manumission of one male slave (ghulam) for every day that he broke the fast. Or, when the emperor Shahjahan was ill, his daughter liberated several slaves, made them walk round her father, and then sent them away to carry his infirmities with them. It is not mentioned whether these slaves were just sent away or released according to the rules of manumission, but since Islam is stickler about rules, it is probable that appropriate procedure was followed while freeing them.

After the compilation of the Quran and the Hadises, many schools of jurisprudence developed with many manuals of commentaries and interpretations on these two main source-scriptures. Named after their founders Abu Hanifa (c. 699-767), Abu Abdulla Muhammad bin Idris (c. 767-820), Ahmad bin Hanbal (c. 780-855) and Malik bin Anas (715795). and called the Hanafi, Sha�afai, Hanbali and Maliki, the four famous schools of Islamic jurisprudence developed in the eighth-ninth century. In the twelfth century Shaikh Burhanuddin Ali (530-593 H/1135-1196 C.E.) of Marghinan in Transoxiana wrote the famous Hidayah or the Guide, a well-known work of Sunni law. It is based on the Quran, the Hadis and the four schools of Muslim Jurisprudence mentioned above. Throughout medieval India Muslim Ulema, jurisconsults and judges (Qazis) depended on these scriptures and law books for deciding cases about slaves. Besides, during Muslim rule, spreading over several centuries, numerous judgements, Zawabits (Regulations) and commentaries appeared concerning matters of law and were referred to as precedents. Their large numbers were bound to create confusion and sometimes lead to decisions convenient or otherwise to particular parties and situations. Emperor Aurangzeb therefore decided to consolidate the main canons of Sunni law in one book. This resulted in the coming into being of his voluminous magnum opus entitled the Fatawa-i-Alamgiri. Bakhtawar Khan, a nobleman of Aurangzeb�s court, has this to say about the Fatawa-i-Alamgiri. �As it is a great object with this Emperor that all Muhammadans should follow the principles of the religion as expounded by the most competent law officers and the followers of the Hanafi persuasion and as these principles, in consequence of the different opinions of the kazis and muftis which have been delivered without any authority, could not be distinctly and clearly learnt, and as there was no book which embodied them all� His Majesty, the protector of the faith, determined that a body of eminently learned and able men of Hindustan should take up the voluminous and the most trustworthy works which were collected in the royal library, and having made a digest of them, compose a book which might form a standard canon of the law, and afford to all an easy and available means of ascertaining the proper and authoritative interpretation. The chief conductor of this difficult undertaking was the most learned man of the time, Shaikh Nizam, and all the members of the society were handsomely paid, so that up to the present time (early years of the reign) a sum of about two hundred thousand rupees has been expended in this valuable compilation, which contains more than one hundred thousand lines. When the work, with God�s pleasure, is completed, it will be for all the world the standard exposition of the law, and render every one independent of Muhammadan doctors.�

Fatawa-i-Alamgiri thus forms the most important source book for Muslim law in India. It was compiled in the later Mughal period, gathering information from books and judgements of Qazis through all the centuries of Muslim rule. And more importantly it was written in Indian environment. Besides citing from the treatises and scriptures from the Quran to the Hidayah, it quotes as its sources almost all great authorities like Imam Abu Hanifa, Imam Abu Yusuf, Imam Muhammad, Imam Karkhi, Fatawas of Qazi Khan, Fateh-ul-Qadiri, Sharah Ziadat-ul Utabi, Akhtiyar-i-Sharai Mukhtiyar, Muhit-i-Surkhi, etc., etc. The Hidayah and the Fatawa-i-Alamgiri thus form the most authentic volumes for the study of Muslim slavery in medieval India. Its corpus deals with all aspects of Muslim law concerning the life of Muslims including the two aspects under discussion - upkeep and manumission, sale and purchase of slaves - in great detail.

Manumission

Rules regarding manumission of slaves are given in the kitab al-�Ataq, and about sale in kitab al-Biyu�. But there is no book or chapter whether on Nikah (marriage) or Talaq (divorce), barter or oath, sale or purchase, mortgage or transfer of property, offspring and progeny, in which slaves or slave girls do not find a prominent and lengthy mention. This only shows that Muslim society was incomplete without slaves and the slave system permeated every sphere of Muslim life.

Manumission is of four kinds -wajib (obligatory), mubah or halal), in accordance with Shara), Mustahaj ( a pious act), and Haram (prohibited). Manumission can be done orally or in writing, but it has to be done in accordance with rules and in proper form and proper words. Captured slaves, if kafirs, could not be freed. To be kafir is a disqualification (aib) both in ghulam (male slave) and bandi (female slave). The Muslim detests the company of kafirs �because the object, in the purchase of a female slave, is cohabitation and generation of children.� T.P. Hughes on the authority of the Hidayah says: �The Imam, with respect to captives, has it in his choice to slay them because the Prophet put captives to death and also because slaying them terminates wickedness; or, if he choose, he may make them slaves, because by enslaving them the wickedness of them is remedied, and at the same time the Muslims reap an advantage; or, if he please, he may release them so as to make them freemen and Zimmis� but it is not lawful so to release the idolaters of Arabia, or apostates� If captives become Muslims, let not the Imam put them to death; � but yet he may lawfully make them slaves, after their conversion�� But kafir ghulam was not all useless. He could do work which was infra dig or prohibited for Muslims. Once a slave converts, there is provision for his freedom. If a slave apostatizes, he cannot be freed until he returns to Islam. �An exposition of the faith is to be laid before an apostate; who, if he repent not within three days is put to death.� A female slave or free woman who apostatizes is not to be killed, but she �must be daily beaten with severity until she return to the faith.� A Musalman slave, purchased by an infidel, becomes free after entering an infidel territory. The slave of an infidel, upon becoming Musalman, acquires the right to freedom.

A recognised method of getting manumission was through the custom of tadbir. It was so called when a master told his slave, �you are free after my death.� After this declaration a slave was known as mudabbir. A slave who was declared mudabbir by this master stood manumitted after the death of the latter. It appears that there was keenness on the part of the master, when he had grown old, to grant freedom to the slave. But the bondsman, also grown old, did not necessarily care to seek freedom in declining age. Grant of manumission in advanced age was more beneficial to the master than to the slave. The former could get rid of him; the latter could hardly find a buyer who would look after him at the fag end of his life. Slaves who were captured or purchased young, sometimes so young as to wet their beds - and there is mention of such cases in Islamic law books - would have felt relieved at their being declared mudabbir. They could have enjoyed their freedom because they might be still young when the master died. But most mudabbirs used to grow old in the service of the owner, in all probability too old to be bought and usefully employed by a new master. Therefore mudabbiri held no charm for him. He could have some hope if the master died early. He sometimes wished it to be so, and initiated or joined in a conspiracy to remove the master from the scene while he was still young. For this he would have cultivated the habits of exhibiting loyalty outwardly and practising hypocrisy by secretly harbouring hostility. But loyal or disloyal, old and incapacitated slaves were generally done away with by the new king or master. On the other hand, old slaves were also reluctant to join the new distrusting dispensation. As seen earlier, medieval Muslim society and polity is full of such cases.

There was provision for partial manumission of a slave in Islamic law. For instance, a slave could be exempted from doing a particular type of work from a specific date. A slave could be freed to the extent of one-half, one-third, or one-sixth. That is, if he is made one-third free, he will repay two-third of his price for getting total manumission. If the slave was shared by two masters, rules of manumission were different in his case. The slave on emancipation becomes atiq (freed man) or mawla (client) of his late master, who becomes his wali (patron). Slaves cannot marry without the consent of the proprietor. A master can permit a slave to marry more than one wife, but not more than two wives at the same time, according to most of the doctors. Marriage between slaves with the consent of the master is valid. If contracted without his permission, it is null. The marriage of an infidel couple is not dissolved by their jointly joining the faith. If only one of them converts, a separation takes place automatically. Apostates are incapacitated from marrying. If either the father or the mother be Musalman their children become Musalman invariably.

Every slave girl could be used as a concubine. As quoted from the Hedayah earlier, �the object in the purchase of a female slave, is cohabitation and generation of children.� Therefore for our purpose words like slave girl (bandi) and concubine should be considered synonymous. In a bandi physical fitness, correct menstruation and absence of physical and mental defects were the main considerations at the time of purchase. Odour in the mouth or armpits of a bandi was considered a defect as she was meant to be kissed and caressed, but not so in a ghulam who was required to do manual work. Bernard Lewis quotes many Muslims who describe blacks as �ugly, stupid, dishonest, frivolous and foul-smelling� and black women with the same epithets - �the blacker they are, the uglier their faces� there is no pleasure to be got from them, because of the smell of their armpits and the coarseness of their bodies.� Similarly, a blind, half-blind, squinted, deaf or dumb bandi or one having extra or less fingers was considered defective. If the breasts are large or vagina wide or baggy (which does not give requisite pleasure), whether in a bakira (virgin) or a taiba (non-virgin), the purchaser has a right to return her to the seller and claim refund of money. A desire to do a little make-up, speak or walk daintily is excusable, but too much sexiness, deliberate lowering of voice, blandishments and walking with a provocative gait or swaying the hips are definite defects in a slave girl. In short, whoredom and bastardy is not desirable in a slave girl; it was not considered so bad in a ghulam unless it was so excessive as to interfere with his normal duties.

The sale of an am-walad (mother of child), that is, a slave girl who conceives from her master and gives birth to a child, is 'null' and therefore wrong. The offspring of the master by a slave girl was considered to be free. The woman also gained in status through istawad, that is, right of the child. Henceforth the slave girl was called am-walad and used to become free after the death of her master. As the Prophet has said, �Her child hath set her free� (that is, her child is a cause of freedom to her). So an am-walad cannot be sold as she is free upon the master�s death. It is also not correct to lend, mortgage, or give on wages an am-walad slave girl, but if some stranger shares bed with her, the income is of the master. If he marries her off to someone, the amount of mehr (dower) also belongs to the master. To give her in marriage to a stranger is the right of the master. His control over the bandi is total. Parts of the slave girl�s body could be freed individually and collectively. If the master told his bandi that her farj (private part) is free or that her back or neck or head is free, she is freed according to some jurists but not according to others. A master may withhold permission from his female slave to dwell in the house of her husband. If one buys a pregnant bandi, the unborn would form part of the transaction. If she is collected in loot then the offspring is also counted as slave together with the mother and counted as property of the master. There are rules laid down to determine if a bandi is pregnant at the time of purchase or capture. if the master makes his slave girl mudabbir, then her pregnancy and progeny also become mudabbir. If the pregnancy alone is manumitted, then only the offspring becomes free, not the bandi. Even after a bandi is declared mudabbir or free after the master�s death he can continue to cohabit with her during his life-time.

Sale/Purchase

It may be mentioned at the outset, even at the cost of repetition, that the slave was the property of the master. �The slave forms the most fundamental form of property which, as in the case of every property, is a source of profit.� The master is empowered to endow his slave with almost all privileges and responsibilities of freeman, preserving at the same time his property in him inviolate, which rendered him an attached dependent rather than a mere servile instrument. This we have seen being universally practised in the case of early Turkish slaves who were treated well by their master merchants and sold at good profit.

In the Hidayah, rules about sale and barter of slaves are mentioned under the category of any other property or commodity like land, trees, clothes, fruit, grain and beasts. The price of a slave depended on physical strength and good looks and such other considerations like if he was shared between two or more masters or a bandi was shared between two men. in the case of partnership in a female slave, she becomes the property of the man who has carnal relationship with her with the consent of the other.

There were elaborate rules in this regard so as to avoid contentious sales. For example if a number of slaves were sold out of a big group, those to be taken out were determined by odd or even numbers of the slaves possessed by the seller master. A deception with respect to the sex of the slave invalidates the sale which stands cancelled (akala).

Sale of a mudabbir, an am-walad or a mokatib, is null. A man purchases a slave. He finds some defect in him and beats and tortures him. In case the signs of torture are visible on his person the buyer is not entitled to return him to the seller and receive compensation. If he flogs or slaps him two-three times but there are no signs of such infliction on his body he will have the right to return the slave to the seller. A ghulam or bandi who has absconded is not to be purchased at any cost but has to be restored to the master. �An absconded slave may, in every instance, be reclaimed by the proprietor.� There is a whole set of rules detailed in Kitab-ul-Abaq determining action about absconded slaves. Repeated mention of such rules leads to the inference that flight of slaves was not uncommon.

Slaves who could not be broken or made to submit, sometimes took revenge. In most cases they conspired to do away with the master. They could steal or even do such irritating things as soiling the bed by urinating. The all powerful master could strike back mercilessly. �The power which a Muslim possesses over the persons of his bondsman or bondsmaid is unlimited.� For example, a master is not slain for the murder of his slave. �Amputation of a slave for theft was a common practice recognized by law.� That is how even physically defective and mutilated slaves were put up for sale in the market. If a master killed his ghulam, it was taken that the latter had died a natural death. That is why slaves by and large remained loyal to the master and followed the rules laid down for them. For example, when Imadul Mulk Bashir Sultani, the slave noble of Firoz Tughlaq, became old and decrepit, he first got a letter of manumission for himself written by the Sultan, and only after that he freed his four thousand purchased slaves.

Sale of slaves was so common in medieval India that it is referred to by Persian chroniclers throughout the period.  Manumission too was common although it is not mentioned as often. It is a good thing in Islam that there are elaborate rules guiding their lives. There are some hundreds of rules about the treatment and obligations, manumission, sale and purchase of ghulam or bandi. All transactions were done in accordance with the rules laid down by the Doctors of Islam. But a bad aspect is that the rules went on multiplying and becoming complicated with passage of time. From the eighth to the seventeenth century rules became so numerous and so complicated because of fatwas and judgements of Doctors that it became necessary �to afford to all an easy and authoritative interpretation and standard canon� by launching the project Fatawa-i-Alamgiri. These rules could take care of all situations, serious or sober or even pornographic. Rules in the Kitab-ul-Talaq form an excellent treatise on sex-education. Still a plethora of rules contained contradictions leading to various interpretations. Owners of slaves and the Qazis could do a lot of manipulation in sale and manumission. Naturally, the slave, generally poor and exploited, was at the receiving end against the all-powerful master. For us these rules and laws have an importance of their own. It is on the basis of these historical and legal works compiled by medieval Muslims that an idea of the lives of slaves who could be sold, bartered, lent, mortgaged and used in so many ways, can be formed.
 

Footnotes:

Herklots, Islam in India, 112.

Manucci, I, 217.  Also Meer Hassan Ali, Observations, 215.

Mirat-i-Alam also known as Mirat-i-Jahan Numa, E. D., VII, 159-60.

We have depended on two versions of the Hidayah: 1. The Urdu translation done at Deoband by Maulana Jamil Ahmad Sukrodvi, Muddaris of Dar-ul-Ulum; it is entitled Ashraful Hidayah. It was published in 1980s, only vols. 1 to 5 and 8 to 9 were available to us. 2. The English translation of the work done by Charles Hamilton in 4 vols. in 1791; it is entitiled �The Hedaya (or Guide) - A commentary on the Mussulman laws�. Hamilton gives a valuable Discourse, iii-Lxxxviii, and an Introductory Address, ix-xii, at the beginning of vol. I.

There are two Urdu translations of Fatawa-i-Alamgiri. The one by Allama Maulana Syed Amir All and published by Hamid & Co Delhi in 10 vols. in 1988 is very well printed and beautifully bound. The other has been done by Maulana Mufti Kafi-ul-Rahman of Deoband. It is printed in 42 parts of about 100 pares each. The years of publication are not given. The translation of Deoband has been found to be better than that of Delhi in many ways.

Fatawa-i-Alamgiri, Delhi trs. by Amir Ali, II, 125-277; 278=620.  IV, 195-544.

Fatawa-i-Alamgiri, XII, 5-8.

Hedaya, Hamilton, II, 409.

Hughes, 597.

Ashraful Hidayah, Deoband, VIII, 138-39.

Hedaya, Hamilton, II, 225-26, 228.

Ibid., 190-91.

Ashraful Hidayah, Deoband, VIII, 134.

Hedaya, Hamilton, I, 422-23; Fatawa-i-Alamgiri, Deoband, XII, 11-12.

Hamilton, I, 437; Fatawa-i-Alamgiri, Deoband, XIII, 10, 20-21; Ibid., Delhi, VI, 445.

Ashraful Hidayah, VIII, 104.

Reuben Levy. An Introduction to the Sociology of Islam, I, 116.

Hamilton, I, 161.

Fatwa-i-Alamgiri, Deoband; Hughes, 600.  VII, 34.

Ibid., Delhi, II, 243 ff.

Hidaya, Hamilton, I, 174-76.

Ibid., 176.

Ibid., 177.

Fatawa-i-Alamgiri, Deoband, XII, 14-15.

Ashraful Hidayah, VIII, 137; Hedaya, Hamilton, II, 408.

Fatawa-i-Alamgiri, Deoband, XXIV, 5-6, 26-27.

Ibid., 7.

Ashraful Hidayah, Deoband, VIII, 138; Hedaya, Hamilton, II, 409.

Hedaya, Hamilton, I, 479, 482.

Ashraful Hidayah, Deoband, XII, 23

Fatawa-i-Alamgiri, Deoband, XI, 6, 8. Also Hedaya, Hamilton, I, 421-23.

Hedaya, Hamilton, I, 161.

Fatawa-i-Alamgiri, Deoband, XI, 18; XIII, 22.

Ibid., XII, 12.

Fatawa-i-Alamgiri, Deoband, XII, 18, 21; XIII,12.

Foreword by Paul E. Lovejoy to Claude Meillassoux, The Anthropology of Slavery, 8.

Hedaya, Hamilton, I, xxxvi.

Ashraful Hidayah, Deoband, VIII, kitab-ul-Biyu, 81-83.

Fatawa-i-Alamgiri, Deoband, XII, 26, 31-33.

Hedaya, Hamilton, II, 331-32.

Ashraful Hidayah, VIII, 149, 155-65, 178, 181, 187; Hamilton, II, 386-90, 419-20.

Hidaya, Hamilton, I, 456-64, 538. Fatwa-i-Alamgiri, XV, 57-71.

Ibid., 425, 465.

Ashraful Hidayah, VIII, 193-98; Hamilton, II, 468.

Fatwa-i-Alamgiri, XXIV, 26.

Hidaya, Hamilton, II, 189; Fatwa-i-Alamgiri, XXV, 22-31.

Fatwa-i-Alamgiri, Delhi, by Amir Ali, III, 485-501.

For example, Fatwa-i-Alamgiri, XXIV, 11.

Ibid., 11-13.

Hughes, 599; Hamilton, IV, 282.

Hidaya, Hamilton, II, 423-27; Ashraful Hidayah, VIII, 178, 181.

Ashraful Hidayah, VIII, 149.

Afif, 444-45.

Fatwa-i-Alamgiri, XI, Kitab-ul-Talaq, 26-27.