D. E. Ü.İlahiyat Fakültesi Dergisi

Sayı XX, İzmir 2004, ss.J67-199

THE JUDICIAL REGISTERS OF THE BAKCHISARAY/CRIMEA LAW COURT: A STUDY OF GHASB(ILLEGAL POSSESSION AND OCCUPATION)

AND İTLAF(DESTRUCTION) o V •

Recep ÇIGDEM

· Abstract

Although studies on the judicial records have recently been increasingly appearing, they tend to concenırate on social, economic and adminislrative history. Legal analysis or the court records is not as much as expected. Most of the studies employ the registers held in Turkey. This study, however, employing the judicial records of Bakchisary/Criema, an autonomous republic of our neighbour Ukraine, does legal analysis. This work mainly concentrates on cases of gfwsb and itlaf Having given the theoretical basis of Hanali doctrines, Uıe cases are analysed for Uıeir legal properties. The primary purpose of Uıis work is to explore the way in which the cases were hrought to the court, and to tind out how they were deall witlı by the court authorities. W e hope that Uıe article. will shed light on the application or Hanati law in 1711

' century Crimea. In particular, it will contribute to the understanding of Hanati law by the l71 ıı century Crimean courts.

BAKCHISARAY/KIRIM MAHKEMESi TUTANAKLAR!: GHASB VE İTLAF KONUSU ÜZERİNE BİR ÇALIŞMA

O zet

Son zamanlarda mahkeme tutanakları üzerine yapılan çalışınalar artrnakla birlikte bu araştırmaların büyük bir bölümü sosyolqji, ekonomi ve siyasetta­rihi üzerine olmaktadır. Hukuksal analizlere yönelen çalışınalar ise azınlık­tadır. Ayrıca, mahkeme sicillerine ulaşılabilme imkanı dikkate alındığıııda, çalışmalar genelde Türkiye hudutları içinde kalmaktadır. Bu çalışına ise, komşumuz olan Ukrayna'nın özerk bölgesi Kırım/ Bakellisaray mahkeme sicillerini esas alarak hukuki analizler· yapmaktadır. Çalışma, gfwsb ve i tl af

Yrd. Doç.Dr., Harran Üniversitesi. Ilahiyat Fakültesi. İslam Hukuku Anabilim Dalı, recepcigdcın @yahoo.co. u k

Yrd.Doc.D1:Recep dGDEM

konuları üzerine yoğunlaşınaktadır. Bu iki konuda, Hanati hukukuna ait ge­nel prensipler verilmekte ve mahkemeye gelen davalar incelenmektedir. Ta­rathmn, davaları mal1kemeye nasıl getirdikleri, mallkemenin davaları nasıl ele aldığı ve davaları nasıl sonuçlandırdığı sorularına cevap ~ıranmaktadır. Çalışmanın, 17. yüzyılda, Kırını' da, Hanati hukukunun uygulanmasına ışık tu lacağını, özellikle de, 17. yüzyıl Kırım m allkerneleri t~mıfından Hanati hukukunun nasıl anlaşıldığıncı kalkıda bulunacağını ümit ediyoruz.

Key words/Anahtar kelimeler: Hanali law, ghasb, itlaj; court of law, Bakchisaray, Crimea

Introduction

This article is based on the records of the proceedings · of the Bakhchisaray/Crimea law court. Tjıe original registers 'öf the Bakhchisaray court are located in the National Libı:ary of Russia in Saint-Petersburg. The Tatarian Library in Crimea/Ukraine holds photocopies of these records, from which I extracted my photocopies. I was told and assured by the library staff that the photocopies were made ü:om the micromms of the original registers. The cas es we have examined in this article da tc from 1609 to I 677.

The reader should bear in ınind that the documents and the period covered by this study are very sımıli compared to the enormous amount of court registers available and the pedod they cover. This smail portion of the docilments may give us some clues about the ways in which the cases were dealt with, and about the rules of procedure of the court, but it is unreasonable to draw general conclusions Ji·om them. It is also worth highlighting the fact that these are the cases that made their way into the court records. We know almost nothing about the cases that were never brought to the attention of the court. For this reason, it is almost impossihle to estimate the. number of disputes broke out in tl1e society. Despite these shortcoıiıiügs, the registers under study provide us valuable information making their close scrutiny worthwhile.

I will atteınpt to clarify the !ega! issues raised in the cases to be examined here by referring to the Hidaya or Burhan al-Din al-Marghinani (d. 593/1197), and the Multaqa al-AIJJıur compiled by Ihrahim ai-Halabi (d. 956/1549). These two texthooks were handhooks for law students and the

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Muhammed &ed'in Hirlihe !E.~krı>ahkJ Suçtrı>la İlgili Avetler İçin Yapiiğı Meal-Teti·ir Uzerine

qadis~judges. 1 Other legal texts will he also consulted when necessity arises. Since our aim here is not to examine the juristic texts in detail, the reader should not expect to see the minute legal details discussed hy the jurists.

' . As the close exanıination of the registers reveals, the court was headed

hy a single qadi who carried out notarial and judicial ii.ınctions as well as . certain adnıiııistrative duties. He had two priınary assistants, namely a clerk, and a Mııhzır. While the former recorded the cases in the records with certain adnıinistrative duties, the latter executed the duty of . summoııing the defendants to the co urt. 2

We see at the battom of each case several names, techı)ically known as slıulıud al-hal. They were in the court to ensure its fairness, and witness the procedure and the outcome of a case. Analysis of the registers further indicates that they were familiar with the law. The documents also hint that they served as mediators between the contestants in resolving the disputes via sulh (coınpromise) and worked as lawyers telling a plaintiff how to proceed and present his/her case. 3

Hanaiilaw: glıash and itlr-{f'

Having introduced our documents, Jet us now look at the legal principl,es surraunding g!ıash and itlqj: The former literally means the forcibly taking a thing by sameone which belonged to another. 4 As a legal term, it corresponds to "the aımulment of legitimate possession by establishing an iliegitimale possession".5 In Hanan view, gluısb constitutes a civil offence (tort), and brings about a moral responsibility (itlım).6 There is no puııishment for the

2

:ı

4

5

6

S. S. Has, 'The Use of Mullaqa al-Abhur in the Ottoman Mcclrcscs and in Lcgal Scholarship'. Osmanlı Araşiirma/an Vll-VIll (1988), p. 402: Ö. Özyılmaz, Osmanlı Medreselerinin Eğitim Proğrmnlan. pub. Kültür Bakanlığı, Ankara, 2002. R. Cigdcın, 77ıe register of t/ıe law r·ourt c~f' IsiCinbul 1612-1613; A /ega/ Analysis, Unpublislıed PlıD thcsis, The university of Manchester, 2001. R. C . .lennings, "Qadi. Couıt. and Lcgal Proceclurc in l 7111 Ccntury Ottoman Kayseri". Sıudia Islami ca llL ( 1978); Cigdcın. 1'l1e register c!f' the lmv r.ourt oflsımıbul, pp. 84-60. Burhan al-Din al-Marglıinani. Al-Hidaya, pub. Matha'a Mustafa a!-Halabi, Egypt. 1971, voL ın, p. ll: H. A. Wclır, /Jir:tionm:l' of Modern Written Arabic; Arabic-Englislı, cd. Cowan, M . .1. pub. Libnıirie du Li han, Wiesbaden, 1980. Ihrahim al-Halabi, Al-Multaqa al-Ab/mr, pub. Güryay Mathaasi, Istanbul, 1981, p. 392. Halahi, Multaqa, p. 392.

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culprit. This does not however ınean that he ınay not receive any punishınent at all. If the judge sees that it is appropriate for him to get punishınent, ta 'zir (discretionary punishınent) is at his disposal to do so.

Since glıasb is viewed as a civil offence, the wrongdoer is under an obligation to return the nw.glısub (unlawJully obtained item) to its owner· in the place where s/he seized it. 7 In addi tion, the u surper is liable for any damage that he has ca u sed. 8 The illegal possessor is further liable for a . diıninution of value. However, the usuı·per is not held liable to return the profits that s/he has made out of the usurped object unless the iteın belongs to a waqf,9 or to an orphan. 10 To put it diiierently, Hanafı jurists condone'the violence by letting the usuı·per take the:pronts out of his erime. However, the other thı·ee Sumıi scholars, Malik (d.· 179/785), Shaü'i (d. 204/819) and Hanbal (d.2411855) have the opposite view. They maintain that profıts made out of a usurped object are to be coınpensated for. In other words, in their view, protits derived from a usurpcd o~ject have to be paid to the owner of

. ll the maglısub'.

If the usurped object is destroyed or consuıned and the item was from those. known as mitlıliyyaı (weighed or measured objects such as wheat and sil ver; articles whose value is very similar to each other such as eggs), 12 the usurpeı-...replaces it witlı a simUar item. If the object was an irreplaceable one,

7 Ibid. p. 392. B Ibid. p. 393. 9 Ibid. p. 396. 10 Ö. N. Bilmen, Hukuku İslmniyye ve lsttlcthctll F1kluyye Kanmsu, pub. Bilmen Basıınevi.

Istanbul. 1969, vol. VII, p. 346; Karaın:.ın, H. Mukayeseli İslam Hukuku. pub. Ne~il Ya-yınlıirı, Istanbul, 1996, vol. II. p. 481. -

11 Abu Hasım al-Quduri al-Baghdadi, Al-Quduri, pub. Salıaf HtJCI Şakir Efendi. Istanbul. 1312, p. 98 (ınargiıı ııote); Mulıaınmud al-Siıarbibi ai-Klıatihi. Al-Mug/mi al-Muhwj ila Ma'rifcıt Ma'ani al-A/faz al-Min/ıaj, pub. Mustafa ai-Halubi. Cuiro, 1958, vol. II, p. 286;

. Ibn Ruslıcl, Al-Bidayat al-Mujtahid, pulı. Dar al-Fikr. Beirut, no da te, vol. II, p. 241; Ibn Quclııma, Al-M1tghni, pub. Dar ai-Fikr. Beirut, 1992, vol. V. pp. 414, 423; Bilmen, Hu­kulw İslamiyye, vol. VII. pp. 346-9.

12 Marghinani, Hi d aya, vol. III, p. 62; Balıaıti, Mulıaınınad b. Mahmud. Slwrlı al-' lnaya in the ınargins of Al-Fat/ı al-Qadir, pub. Matba'a Mustafa ııi-Halalıi. Egypt, 1970, vol. VII, p. 4 and vol. IX. p. 321; C. R. Tyser, et al. trans. 77ıe Maja/la, Nicosiu, 1901. articles. 133, 134. 147. 223, 224.

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Muhammed &ed'in Hirabe (Er/aya/tk) Suçuvla İlgili Ayetler İ cin Yaptığı Meal-TeMr Ozerine

its value which it bore on the day in ;ıvhich the case was taken to the court is to be paid. This is according to Abu Hanifa (d.1501767). Abu Yusuf (d.182!798) holds him liable to the value that it bore on the day of usurpation. Whereas, Muhaımnad al-Shaibani (d.l89/805) has the opinion that its value on the day in which it cannot be found any more in the markets should be paid. 13 If the thing usurped is of the class that has no equivalence in the · markets (adad al-mutaj'awita) such as an animal, the two jurists join Abu Yu­suf in holding the usuı·per responsible for the value of the article that it bore on the day of usurpation. 14

Having given the basic rules or glıasb in relation with ınoveable objects, I would now like to discuss the principles regulating the illegal occupation of inunovables. To begin with, everyone has the right to freedam of property. and may do as he pleases with his property .. However, he is not allawed to go beyond the liınits; if he does, he will be legally and ınorally liable. The law entitles the person whose property is illegally occupied to ask the illegal occupier to ınove out of his property. If the occupier does not correspond to his request, the owner of the iımnovable property is entitled to seek help from a court.

If crops or trees were planted on the usurped land, or a building was · erected, they must be removed before vacating the I and. 15 According to a view . attributed to Muhammad, if the building or plant~ are ınore valuable than the land itself, the illegal occupier is allowed to own the land by paying its value to its owner. 16 To put it another way, he endoı·ses the illegal occupation of inunovables and lets the usuı·per receive benetit ti·oın the erime he has conunitted.

Lastly, itlaf (destruction) of articles in all cases entails liability of the culprit. In other words, the person who destroyed or damaged a property pays

~:ı Marghinani, Hidaya, vol. IV, pp. 11-2. 14 Ibi d. vol. IV, p. 12. 15 Halabi, Multaqa, pp. 394-5. 16 Bubarti, 'lnaya. vol. rx. p. 342; Halubi. Multaqa, p. 395 (ınargin notc).

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its value. 17 It is worth mentioning here that although the HanaJi madlıah (school of law) eonsiders itlt{f" as a tort rather than a erime, legal texts exaınine it u nder the heading 'jinaya (erimes against the person)', giving the iınpression that it eonstitutes a erime. However, the Majalla, the Ottoman Court' s Manual, puts it in the plaee where it should be.

The court cases:

The register of the Bakhehisaray law court which is under study eontains ı 4 distinet eases. While the two of theın dea! with the usurpation of slaves, one ease coneerns the glıasb o{ golden eoins. Five eases are abo!-!_t the illegal possession of eertain animals. Whereas, four eases are related to the

· illegal oeeupation of immovables. Fin,ally, while one is ahout the destruetion of agricultural produee of a land, the other deals with a daim of shooting an animal by an arrow. ·

Let us now start examining individual eascs. In order to give an idea to the reader l)ow eases hegin, develop, and end, we will give the translation of the cases as they appear on the records. And then, legal analysis Jöllows the original eases.

Case ı:

1/?/7,18 The case is as tollows:

Hahibe bt. (daughler ot) lsa, the wife of Mustafa Paslıa b. (son ot) Abdullah, racil (low ranking soldier) 19 who died

17 Qasani, Abu Bakr b. Mus'ucl. AI-Bada"i AI-Sina·i. pub. Dur ui-Kutub ai-'Arııb. Bcirut, 1982, vol. VII, pp. 165-8: Marglıinani. Hidaya, vol. IV. p. 196; Halabi. Multaqa, p. 474; Tyscr, Majalla, ıııticle, 922.

18 This identifics the casc as rcgistcr 1. page ?, and cntry 18. The question mark means that it is illcgible.

19 R. C. Jeıınings, "The Society und Economy of Maçuka in the Otıoman .luclicial Registers of Trabzon, 1560-1640" in Continuity and Change in Lar e Byzantine and Early Otımnan Society, cd. Bryer, A. & Lowry, H., pub. University of Birminglıam Ccntrc for ByL:ııntinc Studies, Birıninglıum. 1986, p. 137; M. C. Zilfi. "Wc do not gel ulong; Women und Hul Divorce in the 18 11

' Century" in Women in tlıe Ottoman Empire; Middle Eastern Women in the Ear~l' Modern Era, cd. M. C. Zilfi. pub. E . .1. Bri11. Lcidcn. 1997, pp. 280, 294: M. Z. Pııkulın. Osmanl! Tari/ı Deyimleri ve Terimleri Sözliiğii, pub. Maarif Busııncvi. Istanbul, l 954. vol. I, p. 317: Serto

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Mulıauvned Ered'inHirahe (Eşk1ya/ık) Suçııvla İlgili Avetler İ cin Yapt1ğ1 Meal-Teti'ir Ozerine

while on the cmnpaign in Hungary, [originally] resident in the village oı· Ogrukasta, in the judicial district oı· Yanbol (Ymnbol-Bulgaria), in her own personal represenıation, as well asa guardian or the min or daugbters of the said Mustafa Pasha, Falima and Cennet, [Habibe] brought a lawsuit agaiııst Hasan b. Mehmet. In his presence [she stated]:

"The atüresaid Hasan usurped a slave, worth of 40 tlorin (gol d coins of Europe)/0 trom my husband' s estate and sol d him tür 40 11orin and tür a Çllha (woollen doth) in an amount sufticient tbr a wedding cereınony. He should be in­terrogated."

After interrogation, the afon:said Hasan replied:

"The aforeınentioned plaintitl', Habibe, received the said slave troın the esı.ate or Mustafa Pasha liJr heı: rnalır. 21 Once [the slave] became her own property (lıaqq-t. slıar'iyyasi), her present husband, Ali Pasha b. Ihrahim and her son-in-law, Cafer b. Mustafa, the lady (sic), sold [the slave] to me tür 32 llorin. After I took possession or the ·said slave and they re­ceived the ınoney, a dispute broke out between us. When we were about to caneel (iqala)12 the sale transaction, receiving arefund of 32 tlorin trom Ali Pasha and Cater. and returning the slave to theın, [she] approved or lhe sale transaction. However, l did not hand Lhe said mnount of ınoney [32 tlo­rins] over to theın, instead, ı kept the money [for myselfj and I walked away with the slave. I sold [the slave] for 40 tlorin. I can [now] deliver 32 tlorins [to her]."

20 Bayer! e. G. Pas/ıas. Begs. and J:../(mdis; A Histarical Diclionary of Til/es and Temıs in the Olloman Empire, pub. The lsis Press, Istanbul, 1997, p. 66.

21 Ma/ır is a tixt:d aınount of ınoney or property given by the grooın to the bride at the wedding cereınony or in divorce or on death. Marghinani. Hidaya, vol. I. pp. 204-14.

22 In legal terıniııology, iqala ıneaııs the dissolution of a transaction of sale in consicleration of an cquivalent of the original price. Aclditionally, the ma bi' (the article whiclı has bcen sold) should be in existence. In doctrine, tlıere is a discussioıı as to whether the iqala is ııfask/ı (canccllation of the contnıct as if it has never existed) in respect of the purchaser and the vendor. However, there is u unaniınous opiııion that it is a new sale in respecl of third persons. Marghiııaııi, Hidaya, vol. m, pp. 54-5: Halabi, Mulıaqa, p. 256: Tyser. Majalla, articles, 163. 190-6: Sclıachl. .1. An lntrodm:tion to lslamic Law. pub. The Ciarendon Press, Oxford, 1964, p. 148.

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When the case was asked from the said plaintiff, Hahihe, slıe stated that she had not taken the slave för her ma/ır. and that witlıout her consent, tlıe said Hasaıı had taken tl\e said slave away h.efore tlıe division of the estate <unong the heirs.

When evidencc contirıning his daim was souglıt from Hasan, he was not able to produce evidence.

When the said Hahihe was called upon taking an oatlı tlıat

after the said slave hecame her own property, slıe had not had the said s la ve. sold by Ali Paslıa and Cafer as heing her agent, slıe swore by God Almighty.

A judgeınent was passed tlıat since Hasan admitted tlıat tlıe value of the slave had been 4Q tlorins, and the slave·was not available (mawjud olmayub ), ·Hasan was ordered to han d a total of 40 tlorins over to Hahibe·as tlıe value of the slave.

What happened was written upon request.

Written on 6 .lumad al-Aklıira 1018 [6.9.1609].

Slıulıud al-hal (witnesses to tlıe proceedings of the court): V asli ÇelebP3 h. Abdulgafütr Efendi,24 S/wyklı (the lıead of a spiritual path) Islam Efendi b. Sabir, Halil Efendi b. Hacbi, Mudarris (Protessor), Mustata .b. Hüseyin, Racil, Baynun b. Abdullah, and otlıers.

Here, we see a woman named Habibe tiling a complaint against a man called Hasan, accusing him of usurping a slave from her diseased husband's estate. The del'endant, however, rei'uted her claim and her version of the case. According to him, the case was developed as follows: The slave belonged to her Iate husband. When he died, the slave was given to her as her deferred mahr. When she took possession or the slave, her relative.) sold the slave to him tür 32 11orins. He denied illegally taking the slave into his posse.)sion. Rather, he tried to establish the case as a normal sale transaction. However, he adınitted that he had not handed the money over to the plaintiff. He offered

23 Çelebi was dcsigııatcd from 15 111 century onwurds to the litcratc pcoplc us u titlc of respcct. flowcver, according lo Zilfi, it "probably dcnotcs ussociation witlı a trade". Scrtoğlu, Osmanli Tarihi, p. 65; Baycrlc, Paslıas, p. 30; Zilfi, "Wc do not gel along". pp. 280. 294.

24 Titlc for pcoplc wlıo wcrc educaleel in a madrasa. Baycrlc, Paslıas. p. 44.

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Muhammed &et/'in Hirfibe (Eşkıva/ık) Supıvla İlgili Avetler İ cin Yaptığı Meal-Te(';ir Ozerine

her the payınent of the original price, that is 32 11orins. He was not able sustain his version of the case with an evidence. Furthermore, he did not ask the court to summon her relatives who had sold the slave. This iınplies that he was in fact lying, and making up the case in order to free himself from the accusation.

. The plaintiff did not corroborate the defendant's statement. Rather, she

reiterated her own statement and underlined that illegal possession had been . before the division of the estate. She r~jected the defendant's daim that the slave had been given to her in exchange for her malır.

The case resulted in her favour upon her oath that she had not had the said slave sold to the del'endant arter he became her own property. This suggests that the slave was not given to her as her ma/ır. Rather, she took him ·· as a part of her inheritance.

The defendant was ordered to pay 40 11orins, as he adınitted that "it had been his value. He was not ordered to return the slave, because the slave was not available as he was sold to a third person. Yet, the court could have ordered the return of the slave, cancelling the sale transaction, as a third person without authority (jiıdlıulf-glıôsıb) did the transaction. The courtdid not opt for this, because although it is not entered into the record, it is likely that when her decision was asked about what she wanted, she preferred ınoney but not the slave. Once the usurper made the payment, his transaction becomes valid. To quote Marghinani: "If a person usurps a slave and then sells it, the sale becomes effective, once the usuı·per pays his value to its

. . 1 " rys orıgına . owner . --

It is to be noted that in a normal procedure, the plaintiiT is the person who brings evidence, here, however, the opposite occurred. The defendant is asked to produce his evidence, and not the plaintifi'. This is due to the fact that the defendant becaıne plaintii'f when he produced a counter claim. As in this instance, a person may begin the case as a defendant but end up asa plaintiff or vice versa. In Islaınic law, there is no distinction between t.he del'endant and the plaintiff. They become distinct according to the development of the case.

25 Marghiııani, H itfaya. vol. IV, pp. 19, 6L): Halabi, Multaqa, p. 396.

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We see a number of dignitaries Jtom ıniHtary and religious dasses among slıuhud al-hal; this is hecause the plaintiff's hushand was a soldier died in a military campaign. Dignitaries did not leave his wife alone, on the

contrary, by coming to the court they showed their sympathy to her and gave the iınpression that they were on her side. This probably shows that Crimean society was caı·ing for and supporting vulnerahle people. This along with ınany other documents may indicatc that society was made up of class hased coınmunities. For instance, wc see dignitaries present in the court when a case involved a dignitary. The same applies to farıners or other groups of the society. Each group inteı'ested in the cases that involved someone from 1tıeir own group. Otherwise, they do not come to the cmırt.

Case 2:

22/70/6, The case is as follows:

From the viiiage of Tayke, Mevlüt Gazi (veteran) h. Murat Suji (follower of a spiritual path), in the presence of Asir Ali h. Murtaza, an agent of his step motlıer, Kerime, his ageney heinn verined accon.linn to the re()Uireınent of tlıe law [Mev-o e ' Iüt] stated:

"My fatlıer owed one lıundred and lifty gold [coins] as de-~ ferred debt to Kerime, the principal of the said Asir Ali. She

donated it to my t~ıther and ahsolved him of his debts. Now, the principal of t.lıe said Asir Ali, took away (akhd/ı.) [my] twenty two gold [coins] wit.lıout any legal reason. He should be interrogated."

Arter interrogation, the said agent replied:

"lt is a üıct tJıat tweııty two gold [coiııs] were usurped,. but it is wrong tlıat tJıere was a donation [by my step ınotlıer to his üıtlıer].

Ceınalıer Suji b. Süleyman and Akbolaıı b. Hasan testitied as witııesses in accordaııce witJı the [statement of the plaintitl].

It is recorded that tlıe testimoııy or tlıe witnesses was ac­cepted.

[Tlıe case was prohahly recorded sonıetime in Rabi' al-Aklıir 1088 (6.1677), siııce one of tJıe entries in tlıis register ınen­tioııs tlıis date. R.C.]

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Muhammed El'ed'in Hirftbe C&lavaltkl Suçuvlaİlgili Avetlerİcin Yaptığı Mecıl-Tet~ir Ozetine

In this case, contrary to the case above, it was a man who brought a charge agaiııst a woman. She was accused of usurping twenty-two gold coins ihlln the plaintiiT. She did not coıne to the court. Rather, she sent her stepson to represent her in the court. The case suggests that she did iıot want to face the plaintiff, as she was guilty of usurping certain aınount of gold coins. Her agent con11rıned her guilt, as he adınitted that s he had usurped the plaintiff' s· money. However, the agent di d not touch the statement of the plaintiff that his father had been one hundred and fii'ty gold coins in debt to her. The agent, rather, stuck to the question of usurpation. His statement, however, iınplies that there w as .a debt.

The corroboration of the staı.ement of the plaintiff by the witnesses coni1nns as a fact that his father was in debt to her, and that she ii:eed him · from his debts. This suggests that although she gave up what is owed to her w hile he w as ali ve, s he changed her mi nd when he di ed, and wanted to .get at least some or her n10ney back. When she could not do it peacefu11y, she did it forcefully.

Although it was rccordcd that the court acccpted the testimony of the witnesses in favour of the plaintiff, the court's judgemcnı was not entered into the record. However, it is high1y likely that following the rules of glıash, the defentlant' s principal w as ordered to return the usurped twenty-two gol d coins to the plaintiff.

The entry does not make it clear whether Oıe diseased had children other than the plaintiff and why the dispute broke out. Furt:hermore, there is no due on the question of what the reason helund debt was and why she gave it up. It is, however, evident that there was some sort of relation between the diseased and the plaintiff.

Case 3:

22/70/8, The case is as follows:

From Tayir, when the priest of Top in K~U'asu (Nijniygorsk) nmned istemehan deınanded that HaCI Pir Ali, an agent of Benci hl. Bolan, his ageney heing estahlished, should [return] twenty live gold [coins) which were illegally taken away [ti'om him], lhe said agent !Pir Ali] denied lhe accusation bul was noL able to estahlish lhis denial].

177

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A judgemeııt was passed orderiııg [Pir Ali] to lıand the said moııey over to the said priesı..

[The case was probably recorded sometime in Rcibi' al-Aklıir 1088 (6.1677), since one ol' the entries in this register men­tioııs this date. R.C.]

Shuluıd al-hal: Fahruddiıı [h.] Salih, Birmirza Hmnza Tok, Çoray Ketlıüda (clıief of a crafl guild), ai-Ma'nıf (known), Mustat~ı b. Karasu, Abvas [h.] Hartok'?, and others.

As in the case above; it was a woman who was accused of illegally taking possession of certaiıı amount of.money. Although, the emry writes-that it was the money of a priest, it is possible that it was not his ownmoney, but ·the money of his church. The entry does not revcal how the· mo ney was taken away. Did she pick it up while H WqS being collected from the church attendants or did she receive it as a debt but did nôt return it on time? None of these were clariiied, so it is not known why she did this. Was she in need of money and could not get it in any other way? Whatever the reason ınay have been, her agent was ordered by the court to return the money, since the court was firmly convinced of her being guiıty.

· It is worth highlighting that in a normal procedure it is the plaintiff who briııgs his evidence when his case is· denied. In the case of failure, the defendant takes the oath. Here, the court clearly did not follow this procedure. The reason for this might have been that the judge relied on his personal knowledge that the incidenl had certainly taken place. ln law, the qadi can pass his judgment · in favour of the plaintiff, without any evidence, if he personally knew that the incident had happened and the case was related to lıaqq al- 'ibad (rights of huınans) such as ghasb. This is however limited to events .occurred in his district. 26

·· ·

As in the previoi.ıs case, here an agent represented the defendant. She did not attend the court. On the qucstion of why she preferred an agent, it is perhaps because she did not want to face him, as she was guilty. These two entries along with many other documents show that women preferred not to

26 Hıılabi, Multaqa, p. 291.

178

Muhammed &ed'in Hiıiibe(}Jskoıa!tk) Suçuvla İlgili Ayetler İçin Yaptığı Meal-Tet~ir Ozerine

attend the court when they were defendants. Whereas, they did not show any hesitation to come to the courl when they were plainti1Ts.

As the case involved a leader of the coınmunity, we. see a dignitary (Ketlıiida) among shulıud al-hal who witnessed the proceeding of the couı·t. Since it was a case involving dlıimmis (non-Muslims residing in a Musli~n territory), people fi·om the dlıimnıi community also attended the court. This · clearly indicates that a case involving dlıinınıi community was taken to a Muslim court. It is particularly interesting, as it was a priest, a leader of the conununity, but not an ordinary person, who brought his case to the Muslim. court. This in turn shows that they were not able to resolve their issues within their own comınunity.

Case4:

22/117, The case is as follows:

From the residents of Bakhchisaray, a dhimmi called Sefer stated in Uıe court in Uıe presence of Abdi, from Uıe residen ts of Gül:

"The said [Abdi] forcibly took a sheep, worUı of 100 akçe, away from my possession and consumed it. He should he in­tcrrogated."

After interrogation and adınission of guilt, he [Abdi] was or­dered to pay 100 akçe.

[The case was prohably rccorded in Uıe last decade of Mu­harranı 1088 (3.1677), since one of the entries on Ulis sheet mentions Uıis date. R.C.]

Sluılıud al-hal: Abdurrahman, Tıntar (a lief of less Uıan 20.000 akçe)21 holder, Mevlüt, Mitilah (teacher or a scholar)2

M [and] Sefer, Suji.

This is a case of glıash of an animaL As appears in the entry, a certain Abdi illegally seized a sheep and consuıned it. A certain Seter Hled a coınplaint against him. When the accused adınitted that he had coımnitted the

27 Baycrlc, Pas/ıa.\', pp. 147-8. 28 Ibid. p. 11 l.

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offence, the court accordingly issucd his judgement. The ruling of the court was in accordance with the requireınent of the law, which says if a usurped object such as an aniınal is consumed, or destroyed, it' s value is to be paid. ·

Although the case was brought to the court by a certain Sefer, it is highly tinlikely that he was the owner of the beast. The presence of a certain Abdurrahman with the title of Tınwr holder among slıuhud al-/ıal suggests that he was the owner of the aııimal and that Sefer was his shepherd. Since the animal was taken :l:i'oın his possession while it was under his control, it is highly likely that it was lıii; master who asked him to take the case to the court. They might have tried to resolve· the matter outside the court but failed to arrive at any satisfactory conclusion. So, the court became their last resort

Case 5:

221?/3, The case is as follows:

A person called Mcvlüt Gazi b. Dösir sı.ated in the court in the presence of a ınan ıımned Recep b. Haccmet:

"Niııe ınoııths prior to this document, the al()rementioııed man called Recep aloııg witlı a number of men ccune at niglıt, [and] at the corııer of the dty wall or mir'u [they] heat me and usurped my own cin? h orse,. worth of two gold coiııs, ac-

~ cusing me of stealing and slaughtering his [Recep's] ox. I re­quest that he should he iııterrogated and Uıat justice should be fully establislıed."

Arter interrogation, the said Recep replied:

"ll is correct Uıat I took away his cin'! horse. He wanted to give me seven lion coins (esedf gumş).29 l requested Uıeın, bul he did not give [thcnı lo me]. Owing to this, I seized [his h orse]. I sol d it !br eiglıt lion coins, I kepl seven [ coins} for myself and gave one [coin to him]."

[Recep's] coııfession was rccorded in 1088 [1677] from the ınigr~ılion of the Proplıet.

29 Tlıesc are the ı.:oiııs ol' Hollaııd. As wc have secıı above. one lıorse cquals two gold coins. Here, the value ol' the lıorse is giveıı as ciglıt lion coiııs. This meaııs one lion coiııs

cquals approximately to 1/4 gold coins. Serloğlu, Osmanlı Tarihi. p. l 1 B.

1HO

Muhammed &ed'in Hir/ihe (Eskn>a/ık) Suçuvla İlgili Avetler İ cin Yaptığt Meal-T'e(rir Oze~ine 1 •

Sluıhud al-lıal: Adakar Efendi, Ahmet Autlik (I could not tind what this title stands for), Abdulaziz Çelebi, Murat Gazi, MltllZir.

In this dispute, a person called Mevlüt filed a coınplaint against a ınan naıned Recep. According to the statement of the plainti1I, Recep along with. his men seized the plaintiff' s horse and beat him at night accusing him of stealing his ox. The del'endant admitted to dragging his horse away but brought a counter daim that he did it as the plaintiff had not kept his promise of giving seven lion coins to him. Although the court recorded his confession, it di d not record tl1e outcome of the case.

On tl1e quest:ioı1 of why the plaintiff promised to give seven Halland coins to the defendant, it is possihle tl1at it was for the ox which he. was .accused of stealing. Although in his stateınent, tl1e plaintilT suggested tl1at he had not been the thief, he ınight have been so as the del'endant statenrent implies. Altl1ough tl1e del'endant did not ret'er to physical attack as alleged by tl1e plaintitl', it is highly likely that he did it. It is to be underlined that in the attack, he was not alone and it was at night. This clearly indicates tl1at the attack was premeditated. They made a plan and executed it quite sınootl1ly.

. . He did not prei''er going al(me at night, because this might have reversed his· plan as it is easy to ilght against a man but not that easy against severaL It is . very likely that these men were his friends or from his own community.

As for the question of why the plainti1T delayed tl1e case for a nine month, it is possible that he was intiınidated by the men of the del'endant not to bring it to the court or else he waited expecting a mutual sôlution. When iliere was no coınpromise, and the intimidation got out of control, he turned to the couı;t for help. The presence of a Mulızır among slıulıud al-hal suggests this possibility as the defendant did not voluntarily come to the court but he was brought by the executivc authorities.

Since the outcome of the case is missing, we do not know how the dispute was resolved. However, according to the requirement of tl1e law, the plaintiff should get his horse back and face the charges agaiı1st thef't. IJ the sariqa were to be proved as such, he would be asked to pay the value of the

un

Yrd.Doç.D1:Recep CİGDEM

ox.30 He cannot receive a sai-iqa punishment, siınply because the case was not brought to the court within six months, which is the upper liınit to bring such a case. 31 For the physical attack, in the view of Abu Yusuf, the victim ·is entitled to demand coınpensation for the pain, which he suffered. 32 It is unlikely that the plaintiff deınanded compensation for the attack.

Case 6:

22/70/11, The case is as follows:

From the viiiage of Cehbar, in Uıe judicial districL of Karasu, Ömer b. Hüseyin stated in the court in llıe presence of Ihra- ., him b. Halil, from Şahkerman:

' "Six monllıs ago, I lost my inotley horse which is standing here. [It is] marked willı a staınp of boğdan'! on one side of his right ear. Now, I hmnd it [in tlıe possession ot] fbrahim. I request [tlıat it should be returned] to me."

After interrogation, the aforementioned Ihrahim replied:

"I went to Botkali along with other ten men. We forcibly took it into our possession and drove it and released it from its holders (sawkan suftayıni daj' eyledi/k). I don not know whellıer it belonged to the aforesaid Ömer."

Arter his denial, he [Ibrahim] was not ahle to produce his eviden ce.

When evidence contirming llıe statemenl of the person who re-claimed [the horse (musıahaqq)] was s(mght [trom Ömer], trom upright persons, Ahdulgani St!/1 b. Hüseyin, Ali vetice Suji b. Apak, and Raınazan b. Hüseyin testitied in sense and word (lqf'zan ve ma'nan) inaccordance with the statement [of Ömer].

Their dispositinn was föund acceptable.

30 Marglıiııani, Hidaya. vol. ll, p. 105. :ıı .

lbıd. vol. Il, pp. 105-6. 32 Ha!abi, Mulıaqa, p. 471.

182

Mulıanvned Esed'in Hirabe (Esli!ya!tk) SUÇtl)'laİlgi/i Avetler İçin Yapuğr. Meai-Tet'çir Ozerine

When the said Ömer was asked to lake an mıllı llıat he had not ended his ownership of llıe said horse [by any transac­tion], he took the mıllı.

According Lo the requiremenL of Lhe mıllı, a judgmenL was passed.

[The case was probably recorded someLime in Rab i' al-Aklıir 1088 (6.1677), since one of llıe entries in lllis register men­tions llıis daLe. R.C.J

Sluıluıd al-ha/.: Alunet Çelebi, son of Mujii, Karabaş, Mtıhztr, Bekrullah ~!.,!endi, Abdulhaki, Ata/ik, Muqıt Gazi, Mtılızır,

and ollıers.

This is an interesting case, as the trial was taken in the presence of the horse as the p1aintitT' s s tatement 'it (hoı·se) is standing here' indicates. W e see · here a man named Ömer reclaiming his lost aniınal fi·oın its present holder. Although the plainti1T did not mention how the beast got lost, the defendant's stateınent indicates that it was usurped. Moreover, his renmrk that they released it from its holders implies that it was taken away while being under the control of the shepherds. His statement l'urther included that he had accoınplices.

The del'endant Iistened to the plaintiff, but brought a cl ai m· that he · usurped the animal from a third person. By producing such a claim, he atteınpt~ to cease the Iitigation, because in law, "if the holder (dhu'l-yad) of [an item, animal and so on] claims that he usurped it from someone [other than the plaintiH], and brings evidence, the Iitigation ceases".33 This means that the plaintii'f should be the person ii·om whom the animal was usurped, but not the person who originally brought the case. However, he failed in his atteınpt, as he was not able to substantiate his allegation with evidence. This is why the court recorded his statemcnt as denial without evidence.

In the third step, the court demanded evidence fi·oın the plaintiff. Three persons testiJied in his favour. 34 Lastly, the plainti1T was called upon taking an oath that he had not ended his ownership of the horse by any transaction and

33 • Halabı. Multaqa, p. 324.

34 Two of the witııesses pnıhably were his brothers as they had the same father, Hüseyin.

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he answered to it. On the question of why he was asked to take such an oath, it is because there was a possibility that the horse had heen sold or donated and so on. In order to verify that thcre was no such transaction he was called upon taking an oath. The outcome of case was positive for him. Although the precise judgınent is lacking, it is likely that the horse was handed over to the plaintiff, as he established his case.

The incident took place six months earlier than the date of the record. On the question of why the plaintiff did not take the case to the court immediately, it is perhaps because they were not able to identify the usur.pers. Oııce they found out who he was, they took the case to the couı·t. When the court was infonned of the incident, it issued a warrant Jor the defendant to be brought. to the court. As appears in slwlıud al-hal, two Mulızırs, naınely Ah­met and Murat were authorised to bring the defendant to the court.

Case 7:

1136/1, The case is as follows: From the residents of Salacik (a districL in Bakchisaray), Ab­dullah b. Ibralıim, a butcher, summoned, from Uıe residents of Olakli, Mehmet b. Abdullalı to the court and in his pres­ence, he stated: "The aforesaid Mehmet and I had sale transactions and pur­chase. I owed [him] a total of 72 tlorins. [Initially,] I paid otl' my debt, except 30 tlorins. Later on, I paid 28 tlorins [out of remaining 30]. Now, . Uıe said Mehmet usurped my h orse. I request [Uıat Uıe horse shouldbereturned to me]." When the case was asked from the said Mehmet, he admitted Uıat he had received more than 30 11orins. rHe Uıen claimed] that he had received 18 out of28 tlorin as interesL (faida) buL denied his receiving it [18 tlorin] asa [part of Uıe] debt. · He (the plaiiıtifl] admitted that Uıey had ınade a mu'c1mala-i slıar'iyya agreement. According to slıari 'a, it [Uıe debt of mu'ômala-i shar'iyya] is considered as a principal dehl. When eviden ce conlirming the said plaintiff s stateınenL Uıat .ııe had paid 28 tlorins was sought from him, he was not able to produce (evidence]. When the detendant was oftered to take an oatJı, he ab­stained. A judgement was passed that [the plaintit1] had paid his debl of 28 tlorins.

184

Muhanvned &ed'in Hiriibe!&lm•alık) Suçuvlaİlgi/i Avetler İçin Yaptığı'Meal-Tet''lir Ozerine

When [the detendaı)t] was questioned aboul the horse, he re­plied: "I took it into my possessionfor my right." A judgement was passed that the said Abdullah has to give 2 tlorins to Mehmet, and [in relurn], the said Mehmet has to hand the horse back to the said Abdullah. What happeued was recorded. ll was written on 12 Rantadan 1018 [9.12.1609]. Slıulıud al-hal: Hasan Efendi b. Mehmet Efendi, pride of the judges, judge in Kerşin, Kayd? b. Hızır, Memi b. Abdullah, Memiş b. Abdullalı, Pervizb. Abdullalı, and others.

Before exmnining the case, it is worth giving the detinition of mu' amala-i shar'iyya, as Uıe main argument of the case surrounds this term. Asa legal term, il reters to a special transaction tlıat bypasses the prohibition on interest. lt works at either of the föllowing:

1

1-A wants to take a lmın from B. B sells a tlıing to A for 1000 dirham on credit. Then A seli s it to C in ad van ce t()r 900 dirhani and C seli s it to B for -the price at which he purchased it. The ditTerence between Lwo prices, 100 dirham, or 10%, is the protit.

2-A takes 1000 dirham as a loan from B and also purclıases sometlıing else for 100 dirham from B. Then A donates it to C. Afterwards, C donates it 1to B. Consequently B gains 100 dirlıam, or 10%.35

In tllis case, a person named Abdullalı tiled a complaint against a certain Mehmet, charging him witlı usurping his h orse. Iıi his statement, tlıe plaiutitl' said· that he had owed tlıe delCndanl 72 llorins, but he had paid off his debt in two instalments (42+28), except 2 tlorins. 'The defendant partly~corroborated the . ' plaintiff s statement. He, however, alleged that he had received 18 out of 28 tlorin as interest tbr mu' ilmala-i shar'iyya. When asked whetlıer tlıere had been such an agreement, tlıe plaintiff veritied tlıat they had made such a deal. The plaintiff was tlıen asked to establish witlı evidence the fact tlıat he had paid 28 tlorins. He failed to do so. Following tlıe standard procedure of judgement, tlıe defendant was called upon taking an oatlı that he had not received 28 tlorins, he abstained. This indirectly established tlıat tlıe plaintiff had paid 28 tlorins. This was tlıe tirst judgement of the court.

:ıs A. Akgündüz, İslam Hukukunda ve Osman lt Tatbikat i nda Vakıf Müessesesi, pub. Türk Tarih .Kurumu Basımevi. Ankara, 1 9RS. pp. 160-2. For a discussion on this su~jecl in the coııtext of ıvaq/: see E . .1. Maııdaville, "Usurious Piety; The Cash Waqf Coııtrovcrsy in the Ottoman Empirc", International .Journal (!1' Middle East Studies, X (1979), pp. 289-308.

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The detfmdant was then questioned about the horse to which he replied that he had taken it away in exchange for Uıe debt. Upon his confessioıı, Uıe court ordered Uıe defendant to returu Uıe horse to its original owner and Uıe plaintiff to pay his remaining deht of 2 tlorins.

As has been seeıı, Uıe main argunıent of the case was not the payınent itself but fbr which it had been ınade. While the plaintill' argued Uıat it was tJıe payınent for the de ht, Uıe delendan t alleged that it was U ı e paymen t for Uıe in terest. AIUıough it is coniirmed by tJıe plaintifT tJıat Uıere had been a mu' amala-i slıar'iyya agreeınent and the court noted that its debt is considered as principal debt, it did not take it into account. This is perhaps because Uıe rate of interest was very higlı, being %25 - 18 tlorins for 72 tlorins. The court did not view it as ıı,valid interest agreement as it went beyond tJıe perınilted Jim it, wlıich is 15%.36

As has been stated in the entry,; it was the plaintiff who sumınoned the defendant to the court, but not the executive auUıorities. It is Iikely tJıat when he intbrıned the court of the incident, he n!ceived a .warrant from tJıe court, and showed it to the detendant who then voluntarily atten'ded Uıe court.

Case 8:

1/26/5, The case is as follows:

Kalaburdi b. Botürk as an agent of his motlıer, Fatiına, his ageney heing estahlislıed, 1 stated] in Uıe pres e nce of Can Mullalı h. Tenıohurdi:

"Since, I was in deht to [Can], because of washing; he [Can] usurped a red ox whiclı was the share of my principal, Fatima. I ·request as an agent [tlıat Uıe ox should be re­turned]."

When the case was asked ti'om Temohurdi (sic) tiıce to tiıce, he said:

"The said ox was [taken away] tbr Uıe debt of waslıing".

When evidence was souııhı. ti'om Kalaburdi, he estahlished ~

[his case] witlı Uıe testimony of Mehmet preaclıer b. Bağsan-dan and Başbolal h. Bokan Hoca (teacher).

36 U. Heyd, Studies in old Ottmnan Criminal Law, pub. The Ciarendon Press, Oxford. 1973, p. 122; N. Çağatay, "Riba and Interesl Coııcept and Banking in the Ottomuıı Empire", Studia !slamir.a, XXXII (1970). p. 65.

186

Mulıanvned &ed'in H iriibe (E,çfavahkl SuÇtıvla İlgili Ayetler İ cin Yaptı.ğt. Meal-Tet~ir Ozeıine

Accordingly, ajudgeınent was passed.

ll was recorded in Uıe tirst ı.lecade of .lumad al-Akhira 1018 [9.1609].

Sluıhud al-lıal: Mehmet Efendi h. Hacı Hüsmneddin [and] Abdurrahman ~'('em/i b. Mansur Bali.

This is also a glıasb related dispute. On this occasion, we see a man accused of usurping a beast of a woınan because of her son' s debt to him. A certain Kalabuı·di who was in debt to a certain Can accused him of illegally seizing an ox of his mother in return for his debt. He deınanded that the aıtimal bereturned to his ınother, as she has nothing to dowith his debt. Upon interrogation, the del'endant cnnfessed to the ghasb of the animal. In a normal procedure, a confession brings about conviction and no further evidence is needed . .In this case, however, wc see evidence being asked by the court from the plaintiff. On the question of why the court deınanded evidence, we areı of course, not in a position to answer this question with absolute certainty, but . the most probable answer in our opiıtion is that the couıt wanted to ensure that the case was as presented by the plaintiff, as there remained the possibility that the ox belonged to the plaintiff hiınself, but presented his ınother as its owner. In other words, the court might have had a suspicion on the question of who the owner of the aniınal was. Once the plaintiff presented his evidence convincing the court that the case was as he presented, the court issued his judgment. Although the precise judgement is lacking, it is highly likely that the deibndant was ordered to returu the aıtimal to its owner, because, in lslamic law, a person cannot be held responsible for other person's deht unlcss thcre is a special agreeınent such as kafala (bail) or lıawala (transfer of debt). 37 In other words, it is illegal to get someone to pay for the fault of another. The law does not allow someone to recover his debt via the glıasb of an animal of another. Recovering a debt has its own procedure to follow.

37 For the rules of kafala and /ıaıvala, see Mıırghiııaııi, Hidaya. vol. ID. pp. 87-101; Halahi, Multaqa, pp. 275-85.

187

YrdDoç.D1:Recep CİGDEM

It is to be noted that since rhe del'endant was a Mulla!ı, the plaintiff eınployed two witnesses lrom the religious class. Since the case involved a Mullalı, we see two dignitaries among slıulıud al Jıal.

Case 9:

22/69?/9, The case is as follows:

A woman called. Ayşe bt. Ihrahim bö!ftes baş1 (Uıe head of a bölflk), resident in Uıe quarıer;of Kosllu in Bakhchisaray, in Uıe presence of Hac1 Ahdulgani, Miiezzin, resident in Uıe vii­Iage of Gülen hengi, in Uıe town of Kacihda, [Ayşe] stated:

"A vineyard [which is] located in Uıe aforesaid village [and] hound on one side by the property of Şahan, and Uıe hounda­ries of the oUıer sides are known by the people was Uıe prop­erty of my t~ıUıer, lhralıim, bölilk baş1. Afler his deaUı, I in­lıerited it. The said Abdulgani iHegally occupied il, wlıile I am alive?. He should be interrogated."

After interrogation, the said Aböulgani replied:

"In fact, Uıe aforesaid vineyard was the property of the said Ibralıiın, bölilk baş1. It is 1 al so] a tiıct Uıat after his death, [the vineyard] was inherited by the aforementioned Ayşe. However, Uıe guardian of the said Ayşe, Mustaüı Suji, from Gönlüz, sold it in front of a qadi to my son, Abdullalı, tür twenty four gun~/9 because [Uıe vineyard] was on Uıe verge of ruin. After his death, I inherited it." ..

. The atoresaid' Ayşe admilted Uıat Mustafa Suj/ had been her guardian but denied Uıal Uıe said vineyard had been on Uıe verge of ruin at the time of the sale transaction.

When evidence conlirming his statement was s<ıught from Abdulgani, from Uıe upright persons, Hac1 Alıınet b. Hact

38 A military u nit of 20-200 men. Bayeri c, Paslıas, p. 23. 39 Silvci· coins of Europe. Ibid. p. 71.

188

· Muhcnruned &ed'in Hirftbe CEskn•alık) Suçııvla İlgili Avetler İ cin Yaptığı Meal-Te{.i·ir Ozerine

Murt.aza and Necip Mıtezzin b. Recep l~f'endi testitied that tlıe said vineyard had bcen on the ver ge of ruin at Uıe time of the sale transaction.

After their testiınoııy was found acceptable, a judgement was · passed tlıat tlıe atbresaid vineyard had been Abdulgani's per­sonal property.

[The case was probably recorded in Uıe tirst decade of Rabi' a1-Akhir 1088 (6.1677), since the second preceding docu­ınent mentions this dale. R.C.]

S/uıluıd al-lıal: Çoray Ketln'lda, known as Şah Gazi, shoe maker, Ahdulhaki, Ata/ik, Mulızır, Kurt, M11hztr, Karabaş,

· Muhzır, [and] Murat Gazi, Muhztr. This is a case of illegal occupation of an iınmovable, a vineyard .. It was

a woınan, daughter of a high ranking ınilitary personal, who t1led a coınplaint agaiııst a ınan holding the title of Müezzin. In her statement, she alleged that a certain Abdulgani had illegally occupied her vineyard that she had inherited from his late father lbrahim. When asked, the del'endant did not deny that the vineyard had been Ibrahim' s personal property and that the plaintin' ·had inherited it. He, however, hrought a counter daim that her guardian called Mustafa had sold it to his son, Ahdu11ah, for the reason of its heing on the brink of ruin. "After his [Abdullah' s] death, I inherited it," he added.

When it was her turn, she partly accepted the stateınent of the defence. She however vehemently refuted the daim that the vineyard had been on the edge of destruction at the time of s ale. By this, her plan was to caneel the transaction retrospectively since in Hanali law, a guardian is not allowed to sen immovable properties, unless they are on the ver ge of ruin. 40 The defendant, however, reversed her plan by producing evidence in contradiction with her allegation. The court rati11ed that the vineyard had heen the defendant' s personal property.

It is to be underscored that as we mentioned above, sometimes a person may begin the da 'wa (suit) as the plaintiff and i1nish it as the defendant or vice versa depending on the nature of the claim. Here, Hact Abdulgani was

40 Marghinani, Hi d aya, vol. IV. pp. 260- l; Hal abi. Multaqa. pp. 494-6; Bilmen, Hukuku İslamiyye. vol. V, p. 185.

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Yrd:Doç.D1:Recep C.1GDEM

the del'endant at the hegiıming, but later he became the plaintiff. The rules of the mudda 'i (the prosecution) such as presenting evidence were applied to him.

As appears, she tried to get her vineyard hack, but she failed, as she was not able to establish her version of the case. On the question of why she applied to the court to get her vineyard back, it is perhaps because she was in need of money and wanted to sen it again, or else, she wished to enjoy her vineyard.

The presence of several Mulızm· in the case suggests that the defendant was brought to the court by a warrant. This in turn indicates that the won1an had come to the court and had reported her case before the del'endant was taken to the court by the executive authbrities.

It is to be underlined that it was a woman who t11ed the complaint, hut not her agent. As we have mentioned ahove, usually, hut not always, women personally attended the court when they were plaintiffs. However, they eınployed an· agent when they werc defendanıs. They di d not want to face accusations, as it could be damaging. It is easy to me a complaint but it is not that easy to sit in the defendant's doı.;k, answering the questions.

Lastly, the defendant was a Miiezzin and so was one of the witnesses he eınployoo. This along wHh many other entries indicates that colleagues, ü·iends, and relatives playcd a signifıcant role in the cases as they were fi·equently employed as witnesses. This also shows that people did not do any legal contract or transaction withoul the presence of the witnesses. They were aware of the fact that without evidence there is no way of winning a case except the confession of the defendant.

Case 10:

22/?/5, The case is as follows:

Ali Efendi b. Hacı Cauhek, in Uıe case to be related lıcreaf­ter, an agent of Güneş Klıan, full sister of Uıe diseased Şah Merdaıı Eınlos, his ageney beiııg veritied by Uıe testinıoııy of Alunet b. Musli and Mu/lafi Mevlül, in the preseııce of Ihra­him Çelebi, an agenl of Uıe widow of the said diseased, Huri

190

Mulıcınvned Esed'in Hirfibe Ohkıva/ık) Suçııvla İlgili Avetler İçin Yaptığı. Meal-Te/Mr Ozerine

Khan bt. Timur, his ageney heing veritied by the testimony· of Tahir hey h. Hasan Ağa,41 and Mehmet Mirza h. Rruna­zan, [Ali] stated:

"The tield (ça.wr) [ which is! located in the town of Bestir ak, [and] hound on the directinn of Mecca by the property of Gazi Mııllah, and [on the direclion] ol' the casl and the west altached to the pasture, and !on the direction] ot' the south at­tached to the puhlic road, with l'ruil hearing aı,ıd fruitless trees and with two stone mills are Uıe property or my princi­pal, Güneş Khan. The atbrcsaid Şah Merdan, white he was ali ve, declared a number of times that he had no connection witlı the aforesaid tield and mills. The aforesaid Huri Khan

·is keeping il witlıout any reason. She should he interro­gated."

Arter interrogation, Uıe said agent [Ibrahim] replied:

"The ınills and the tield were Uıe al()resaid Şah Merdan' s property. When his estate was divided after his death, Uıey were given lo her [Huri] as her del'erred mahr of 500 dirhwn. We do not know whetlıer il belonged to the aforementioned Güneş Khan."

Buris Mu/lafı b. Es Gazi and Mustafa b. Etagöz testitied as witnesses in accordance wilh the statement of Uıe plainliff.

When Uıey bore wilness, their lestiınony, after ohserving the conditions reqnired for the acceptance [of a disposition], was found acceptable.

A judgement was passed thal the said tield and mills had been Güneş Khan' s own property.

[The case was probahly recorded in Uıe l'irst decade of Rabi' al-Akfıir1088 (6.1677), since the succeeding document men­Lions this date. R.C.]

Sluıhud al-hal: Abdurrahman Mu/lah, from Kırmacı, Uıe said Ahmet, the said Tahir, Uıe said Mehmet Mirza, Murat Gazi Mrıhzı.r, Karabaş, Mulızır, [and] Abdulhaki, Muhzır.

41 Title borne by officials or offiı.:ers. Bayerle, Pashas, p. 2.

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This is a case involving two women. They were very close relative..'> being sisters-in-law. As recorded in the entry, their dispute involved a particular field and two stone mills. Each claiıned that they had been hers. · Each had her own reason. The defendant, who is the present holder of the field and the stone mills, claiıned that they had been her husband' s property, and that when he died, they had heen given to her as her del'erred malır. Whereas the plaintifT' s reason w as that they had been her own property even before her brother' s death. O nce the plaintiff established her case with the testiınony of the witnesses, the court accordingly issued his judgınent. It con11rıned that they had been the plaintiffs own property. This in turn established as a fact that the del'endant had been keeping tı:ıem without any !ega! reason. S he was a usurper, and so has to s trip on· her hands lhmı them.

It is worth underscoring that the defendant' s s tatement that they had no knowledge of their being belonged to the plaintiff suggests that s he was aware of the fact that they did not belong to her and that she was illegally holding them. This indicates that her reason presented in the court was a total fabrication. She made the reason up in order to free herself from the nceusation of glıash. She knew the fact that she was going to loose the case, but stie did not care about it.

. Neither the plaintiff nor the defendant attended the court. Their

respective agents represented them. This is perhaps because they di d not want to face each other. They might have had disputes and 11ghts over this issue.

The presence of several Mulızırs in the court indicate..o; that the defendant's agent was taken to the court by the executive authorities. It is very 1ike1y that the warrant was issued on her name but she did not come,

rather, sent her agent. Her agent's !ille 'Çelebi' suggests thatlle was someone from the military unit of the diseascd lbrahim. He ınight have beeıı a close friend or rdative of her family.

Case ll:

22/?/7, The case is as föllows:

From the residents of Uıe viiiage of Açka, Gazi Balat Sııti h. Arslan stated in Uıc court in Uıe presence of Can'! Timur h. Mahmut, from Uıe atoresaid village:

192

Mu/ıanv11ed &ed'in Hirclhe (Eı·kıvaltk! Suçııvla İlgili Avetler İ cin Yaptığı Meal-Tet.i·ir Ozerine

''ln the west or the said village, within the territory known as. three o!Ja, I own eight plots of !and whose houndaries are known. The said Timur prevents me trom having the use or [tlıese landsj. He should he interrogated."

Atler interrogatiori, tlıe said Timur replied:

"My üıtlıer had tlıe disposal oı· tlıe said !and for twenty years. The said Gazi Stıfl kept his silence witlıout any legal reason, and did not hring any lawsuit [against my nıtlıer]."

When Azamet h. Seler Gazi and Abdi [illegible] b. Ömer Mu/lah, trom tlıe upright persons, testilied in word and sense in accordance witlı [tlıe stateınent of tlıe plaintift], tlıeir tes­timony, arter observing tlıe conditions required for tlıe accep­tance [of a disposition], was found acceptable.

The hearing and the acceptance of a lawsuit tlıat is hrought afler 11fteen years has elapsed are prohihited. For tlıis reason, the aforesaid case was not heard.

I'It was recorded ini Rabi' a/-Aklıir 1088 [6.16771.

S/wluıd al-hal: Ahdurrahim Mu/lah, the aliJresaid, Hüseyin bey [h.) Yakup hey. illegihle, Keılu:tda, Mahmut Mirza, Os­man Mirza troın Tahir, illegible, · the doorkeeper, illegihle, scholar. Sefer Gazi b. Açka, Abdulhalim b. Kurban, Gazi, Suj[, and others.

Here, a person called Balat tried to bring a case against a ınan named Timur. He was accused of preventing the plaintiff from having the disposal of his own lands. However, the plaintifl' failed as the court did not accept the hearing of the case on the basis of prescription. At the beginning, the court let · the plaintiff to proceed with his case. He med his coınplaint and supported his version of the case with the testiınony or two witnesses. When the defendant said that the plaintifl' had not brought any case agaiııst his rather who had the disposal or the disputed land for twenty years, it became clear that the case was not brought to the couıt within the time-limit For this reason, the court did not accept the case.

It is worth underlining that heaı·ing a case of 15 years old was prohibited by royal decrees hut ımı by !ega! texts. We see this prohibition retlected in the fatwas of the MııJiis or Slıayklı al-lslanıs. For instance, A­bu's-suud, who held the post or Slıayklı al-Islam between 952-82/1545-74,

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ret1ects this prohibition in his fatwas: 'excepl waqf' lands, !and related disputes should not be heard after 15 years' .42

It is to be noted that such a prohibition does not alter the fact that prescription does not produce a new right or a title to a !and. The person who does not !et someone get his right because of presription will be ethically responsible. He is deemed as a sinner. However, such a case cannot be followed ina court oflaw.43

On the question ofwhy he delayed the suil for so long and then suddenly decided to reclaim his lands, it is possihlG that sincc he was a Sqfl, expecting to acquire merit in God's sight, he let the defendant's fathe!· use the !and. When he died, he did not want to Jet his son have its disposaL He might have been a sinner or else. It is al so possible that. he did not need the !and when the defendant's father was alive, but needed it after his death. Whatever the reason may have been, it cost him his lands.

Case 12:.

16/'!/4, The case is as follows:

From the residen ts of the viiiage of Tcberti?, a dcpcndency of Baklıchisaray, Tevkiymn v. (dıild ol) Tcradayul stated in the f.Jresence of Tenırini b v. Kalyor, from the aforesaid village:

"The said Temrinib has been having the use of tlıe tield (çayir) which I inherited from my Iate fatlıer. wortlı of 15 gold [coiıls]. [It is] located in the said village, [and its] boundaries are known [to usJ. I request [tlıat the tield should be returııed to me] according to slıari'a."

After interrogation, the said Temriiıib statecl:

~2 E. M. Düzclıığ, ŞeyJuılislam Ebussud {~/'endi Fetvalan lştğmda 16. Asır 1i'irk Hayart. pub. Eııderun K.itabevi, Istıınhul. 1972, p. 168. For ınore di.~cussioıı on this issue. see lbıı Abidiıı, Haslıiycı ;ata ai-Raıld ai-Muk/ıtar. pub. Dar al-Fikr. Bcirut. 1979, vol. V, pp. 419-22: S. R. Buz. Slwrlı Al-Majalla. pub. Matba'u ai-Adabiyyn, Bcirut. !923. pp. 985-90; Bilmen, Hukuku İslctmiyye. vol. vnı, pp. 109-118: Karaman. Mukayeseli. vol. m. p. 196.

43 For u discussion on this issue. see F. Demir. İslam Hukukmıda Miilkiyer ve Serııer Dağt­lmu, pub. Diyaneı Yuyınlun, Ankuru, !998, p. 227.

194

Mu/ıanvned Esed'in Hin?/Je !E'.sktva/rk.) Supıvlaİlgili Avetler İ cin Yaptığt Meal-Tei~ir Ozerine

"[Ttıvkiyınn's] liıther was my hrothtır. When I got marritıd, his thther gave the said fitıld to my wile as htır dtılerrtıd 1nahr. [It is thtı] propeny of my wife, and wc have hecn having tlıe disposal of [the said field] for twenty-six yecu·s. Tcradayul, tlıc father of tlıe said plaintiffTevkiycun, has heen deatlı ti.>r twenty tlıree years."

The aföresaid plaintift: Tevkiycun acknowledged the state­ment of tlıe aforementioned defendant, Temrinih.

The dispute has been for tlıree years. He dropped the suit bc­causc of prescription.

It was recorded that his suit was not valid.

[The case was prohahly recorded in the second decade of Shawıval 1082 (2.1672), s ince tlıe second preceding entry mentioı1s tlıis date. R.C.]

Slıulıud al-hal: Kerim Efendi [b.] Arslan, Abctuş [b.]

Abdulgaffar, Hüseyin [b. l Abdullah, [and] Ali Çelebi

[b.] Selim? E;(endi.

Here, we see a dhimmi giving up his suit because of prescription. At tirst, he tried to bring a lawsuit against his paternal uncle who had been having the use of his father's 11elds. When the del'endant stated that they had been holding it for 26 years, the plaintiff gave up his daim to the tield. The plaintiff' s s tatement that the dispute is going on for the last three years implies that he did not make any daim to the field for 20 years arter his father's death.

His statement 'according to s!ıari 'a' indicates that he wanted his case to be heaı·d according to slwri'a (classic flqll) but not according to royal decrees. Once he was convinced that the court was not going to review his case as he expected, he dropped his lawsuit.

It is to be noted that according to .the statement of the defendant, his brother, the father of the plaintiff, gave the disputed land to his wife as ma/ır. This evidently indicates that although they were dlıimmis, they were married according to Islamic tradition that cntitles a wife to a ma/ır. It is very likely that they registered their marriage in a Muslim court. Our examination of the registers clearly indicates that although dhimmis had autonoıny over religious

195

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and family matters, they frequently registered their. marriages in a Muslim court of law. This is because Islami<.: law provided several advantages to both genders. A wife is entitlcd to malır and nafaqa (maintenance-adequate support)44 and a husbami had the riglıt to unilaterally divorcc his wife.

The presence of several Muslim dignitaries in the court implies that the contestants were holding a good position iıı the society.

Case 13:

114416 The case is as follows:

Boyobı v. Biağa suınınoned Boğdan v. Biağa to the court [and stated]:

"The said Boğdaıı hurnt my tciı cart lıarvest and all of ma/ıra'! (a woodeıı case för carryiıig grapes). When previ­ously we took the case to the judge Mehmet Efendi, he passed lı is judgemeıı L"

He slıowed a documeııt [wlıiclı estahlislıes that Mehmet I!.Jendi passed his judgemeııtl.

The said Boğdaıı accepted the coııtenl of the lll!jjaı (legal docunıenl issued by a judge) .

.. Judgeıneııt [orderiııg] reparalion was passed.

[It was written] on the date aforementioned. [3 Mulıarram 1021 (6.3.1612), was the date of the third preceding entry. R.C.]

Sluılıud al-hal aforeıııeııtioııed. [They were: Mevlüt, tlıe uıı­

dersigııed, Mahmut h. Abdullah, Mulızır, Perviz h. Abdullah, . Muhzır, and oUıers. R.C.]

This is a case of it/((j' involving two dlıinımi brothers. One charged the other with burning his harvest and. baskets u sed for carrying grapes. The plaintiff sustained Ilis case with a legal document of a qadi called Mehmet E­

fendi. Once the del'endant accepted the ·authenticity of this legal document, he w as ordered to pay compensation. This means he needs to pay the value of the

44 Nafaqa of a wife coıısists of J(ıod. eloılıing and a house or al kast a separate room thal cuıı be locked. Marghiııani. Hidaya. voL ll. pp. 39. 43.

196

Mu/ıwwned E1·ed'in Hirclhe{Eş/avaltk) SuÇiıvla İlgili Aveller İçin Yapiiği Meal-Teti·ir Owine

produce and the instruments that he destroyed. This ruling follows the principle of Hanal:i law that burning (ilıraq) brings ahout compensation.45

The presenlation of a lıqjjaı by the plaintilT indicates thal the case was previously recorded by a qadi. A ht~jjat is a notary document recording the statements and the facts of a case. However, it does not have the judgment oJ' a qadi. The documents contaiııing the decision of a qadi are called ilams.46

The structure and wording of the document gives a clue how the case developed. When his brother hurnt his harvest along with its instruments, Boyoka hrought his brother to the court to have thcir statements about the facts of the case recorded. They received a lıujjat from the court. The dispute however went on. He could not get his brother to coınpensate for what he did. Once more, Boynka turned to the qadi to resolve the matter. Upon his application, the del'endant was sumınoned to the court where he was ordered to pay compensation. This was the end of the road for the defendant. '

On the question of why the del'endant di d the vicious act of burning, it is · possible that it was the result of a dispute over a serious matter. They might have had quarrels over the vineyard itself or some other issues but could not reach a reasonable conclusion. lt is very likely that he did not expect that th~ case would end up in a court of law as it was a family ınalter, but it di d.

Case 14:

1/?/17 The case is as l'ollows: From the viiiage ol' Dethar. Recep h. Belıraın suınmoned

Halef Mirza b. Memiş Mirza [to Uıe court] and stated: "[H alet] had his son nam ed Şahvar shool my grey h orse' s h e ad w ith an arrow". Arter denial, Recep was unahle to produce evidence. Mirza took an oath [thal he had not had his son shoot the h orse.] Recep admilled that. he had heaLen [Mirza' s] son. W haL happened was wriuen on 5 .!uma d af-Ula 1018 [6.8.1601)].

45 Qasani, Bada'i, vol. VII, pp. 165-8; Marglıinani. Hidaya, vol. IV, p. 192; Halabi, Mulla­qa. p. 474: Tysı.:r, Majalla. arıiclı.:, 922.

4fi Cigdcın, 17ıe register 1~( ılı e law co w·! ı!f' Jsıanhul. pp. 45-50.

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Slıuhud al-hal: Abdulaziz Efendi, ·judge in Gözleve (Hivpa­torya), Islam Efendi, Shaykh, Hızır Çelebi, Mansur, Muhzır, and otlıers.

Lastly, this is a case where a man named Halef was charged with having his son shoot the plaintiff's horse with an arrow. He denied the accusation. When asked to produce evidence, the plaintiff, Recep was not able to do so. In order to free himself from the accusation, the defendant took an oath.

The defendant denied his involveınent in the case. He, however, did not deny his child's involvement in the case. This along with the fact of beating indicates that it was the child who .shot the horse. W e . see no judgment regarding this outcoıne. In law, a child is responsible for his misdeeds. He needs to pay coınpensation out of his owiı property if he has any. If it were to be established that it was his father who gave the order, he would have been held liable, as in law a ıninor is entitled to have recourse to the person who ·gave the order.47

Bringing the case against the father of the child, but not against the chil<;l himself suggests that the main suspect was the father of the child. The plaintiff ınight have had reasons to h_ave suspicion on the defendant. It is possibl:e that there was an arguınent over the horse or over soıne other issues, and the defendant was taking his vengeance for this by getting his son to shoot the horse of the defendant.

Although no question mentioned in the record, we see the plaintiff admitting to the beating of the defendant's son. It might have been the answer to a question regarding the beating directed to the plaintiff. Since the document was written in a short form, the question was not entered into the record.

Conclusion

47 Qasa;ıi, Bada'i, vol. VII, pp. 164-6; Marghinani, Hidaya, vol. IV, pp. 197-203; Halabi, Multaqa, pp. 476-8; lbıı Bazzaz, Al-Fatawa al-Bazzaziyya, in the margins of Al-Fatawa al-Hindiyya, pub. lmperial Press, Bulııq, 1912, vol. VI, p. 387; Nizarn ııl-Din et al. Al­Fatawci al-Hindiyya, pub. Iınperiul PreNs, Buluq, 1912, vol. VI, p. 30.

198

Mulıauvned Esed'in Hirclbe (Eşkryahk) Suçuyla İlgili Ayetler İ cin Yaptığı. Meal-Tet">ir Ozerine

Analysis of the entries reveals that the court followed Hanafi law in resolving disputes. However, some deviations trom the strict legal texts can be observed when it comes to the procedure.

As has been seen, the main remedies in glıasb and tort related disputes were repossession and reparation respectively. There was no punishmeıit for. the wrongdoers, as gfıasb and itlaf cases were not viewed as criminal offences. Rather, they were seen as civil wrongs. Furthermore, we see the royal decrees prohibiting the hearing of land disputes over 15 years old at work in the court.

The documents clearly show that women were active in the society. They were not segregated or confined into their homes as popularly assumed. They fTeely came to the court and did not hesitate to initiate a case against even their close relative...,. However, they turned to the system of ageney (wakala), when they were defendants. In other words, they could not hear sitting in the dock of defendants. lt seems that women in Crimea felt uneasy about facing questions as defendants.

W e have also seen that dhimnıis took their case..., to the Muslim court. It was not just an ordinary dlıinınıi but also a prie...,t, a leader of the community_ who took his case to the Muslim court. They even registered their marriages in the Muslim court. It seems that they were aware of the law and the· procedure of the court. They also knew the advantages provided by lslamic law.

Examination of the documents further reveals that communities and groups türmed the society. Each cared about and watched over its members. For instance, when a case involved a person fTom a religious class, we see several men from that group coming to the court. Similarly, it was a member of his conununity who stood as witness when one is required.

It can be deduced ti·om all these that the court was open to aııyone whether it be a Muslim or a dhimmi, or the poor or the rich. One last poiııt that should be made here is that the court executed his judgments according to the procedure of the law regardless of the social status of the contestants.

Çi,\

199