Identity and Security in the Mediterranean World ca. AD 640 – ca. 1517

Decree of Safe Conduct

The following will focus on those decrees of safe conduct that are not appended to a political truce or treaty. These commercial decrees are addressed to Muslim officials to inform them that a foreign merchant community, and not a "nation," has been granted safe conduct for the purposes of commerce. This analysis presents evidence that, first, the intent and purpose of these decrees of safe conduct was to give legal identity and, so, security, to foreign merchants for the conduct of commerce within the territories under the legal jurisdiction of the ruling dynast, where those foreign merchants had no legal identity. Second, since antiquity the construction of the identity of "foreign" merchants in commercial grants of safe conduct was legal, and not national, and these documents construct legal and not national identity. Third, the form of these grants of safe conduct had both pre-Islamic and Islamic precedents.

While decrees of safe conduct were issued by ruling dynasts from across North Africa to Egypt, the Levant, and Asia Minor, areas which became over time parts of the Ottoman Empire, in both Arabic and in Turkish, the focus here will be on those decrees of safe conduct issued in Arabic from the twelfth century through the Mamluk period (1250–1517).[10] While the earliest safe conducts in Arabic were issued in the form of a letter in response to a specific request,[11] in the course of the thirteen century safe conducts were issued by Muslim rulers in the form of a decree to the ruler's officials, with copies given to the Consul as the representative of the foreign merchant community and to the relevant local Muslim officials. In order to further disassociate the decree of safe conduct from the form and purpose of political documents – state treaty and truce – it is important to understand how Muslim rulers identified the merchants on whose behalf they issued these decrees.

Identity

Having misunderstood the form and purpose of the decree of safe conduct, western editors and translators have assigned the language of twentieth-century international relations to documents that were issued between the twelfth and seventeenth centuries. As evidence of this misinterpretation, five different Arabic terms, sometimes two in the same sentence or clause, have been translated as "nation." "Nation" conjoined with "state treaty" calls to mind the unequal treaties that were imposed upon non-western states in the wake of military defeat by European nation-states. Those nineteenth and early twentieth century treaties did indeed represent surrender. By the terms of those unequal treaties, rival European nation-states in pursuit of overseas empire extracted commercial privileges, e.g., from the Ottoman Empire beginning in 1838 and from China between 1842 and 1915. But such political, cultural, military and financial overtones are anachronistic when applied to commercial decrees issued from the twelfth to the seventeenth centuries. It is important to emphasize that these commercial decrees were not issued from a position of weakness, particularly not those issued from the imperial chanceries of successive dynasts who had defeated and expelled the Crusaders' States (the Mamluk Sultanate 1250–1517 in Egypt and Syria) and captured Constantinople (the Ottoman Empire 1281–1924). It is absurd to think that Sultan Mehmet II, upon his conquest of Constantinople in 1453, "surrendered" to the Genoese Consul.[12] Neither is it likely that other victorious ruling dynasts understood their decrees as being treaties between themselves and Christian states or nations to which they were "surrendering extraordinary privileges."

The English translation of a Turkish "treaty" with England dated 1809, published in 1843 refers to the English "nation," and to "Christian nations" with reference to Scotland, France, and Ireland. Flemish merchants are referred to as, "merchants sailing under the English flag," merchants from Venice, and Poland, are referred to as "merchant strangers."[13] Amari and Lane wrote in the wake of Napoleon and before most of the nation-states of Europe had come into existence. Wansbrough and Holt wrote in the second half of the twentieth century as the mandates and colonies that European nation-states had recently carved out of the Ottoman Empire gained their independence from Britain and France. Writing in 1863 Amari, a Sicilian writing before the establishment of Italy as a sovereign territorial "nation-state," qualified his translation of Arabic terms as "nazione" by acknowledging the difference between the political connotations of "nation" in 1863 and its possible fifteenth century meaning: "It is not possible to better refer to the Italian states of the middle ages."[14] In his Arabic-English Lexicon, also published in 1863, Lane cites connotations attached to three of the five Arabic terms at issue that include "nation," but "nation" as a people, not as a political entity. Injecting the modern construct of a "nation" with its political overtones into pre-modern "state treaties" in translations of these documents fast forwarded their political and cultural framework half a millennium, obscuring the political and cultural framework in which they originated. Five terms in these decrees that have been translated "nation," go to the heart of the construction of identity.[15] There is no evidence to suggest that issuing dynasts over a period of 500 years understood the identity of the merchants on whose behalf they granted these decrees as a national identity attached to a sovereign territorial nation-state. While the transliteration of the Latin "Franks" into Arabic attests that issuing Muslim dynast identified the Venetians as a subset of Franks, "all of the Frankish Venetians,"[16] "Franks other than the Venetians,"[17] it is unlikely that Venetians would have identified themselves as "Franks." Contemporaneous Arabic documentary and narrative sources shed light on the ruling dynasts' understanding of the five terms that Europeans writing from the mid-nineteenth into the late twentieth century have translated as "nation."

Three of the five Arabic terms have denotations and connotations that are inimical to the concept of a sovereign territorial nation-state. The first two terms are attested primarily in decrees and documents from North Africa. Qabīla denoted and still denotes and connotes a tribe, a people related through ancestry.[18] As such, it has no connotation that can remotely be associated with the modern concept of a sovereign territorial nation-state. ʿAshīra, denoted and still connotes a clan, or a subdivision of a tribe.[19]

The three remaining terms are attested in documents from throughout the Middle East. The first of these, jamāʿa, is widely attested in time and space. The term denoted and continues today to denote "a collection, a number together, an assemblage," and in modern Arabic "league, union, association; community; federation; religious community," etc. Jamāʿa has no ethnic or political connotation. Hartmann writing in 1918 translates the term as "Kolonie," with a footnote acknowledging the ambiguity of the translation.[20] The contemporaneous Arabic documents refer to the "community (jamāʿa) of Venetians" and not to the "Venetian nation."[21]

The two terms remaining at issue are regularly attested in documents of Egyptian provenance, in thirteenth and fourteenth century North African documents, in later Turkish documents, and in contemporaneous narrative sources into modern times; often the two, jins (pl. ajnās) and ṭāʾifa, (pl. ṭāwāʾif), are attested in the same clause. In documents contemporaneous with the Arabic decrees, ṭāʾifa, is well attested meaning a community characterized by a profession, or trade, a sect, a taxable unit, while Lane lists as a synonym "a firqa of men [i.e., a party, portion, division, or class thereof; as those of one profession or trade: a body or distinct community: a sect: a corps: and sometimes a people, or nation."[22] In fact, ṭāʾifa is the term used to refer to the "Party Kings" of Andalusia from 1010 to 1492, kings who represented the antithesis of a nation. In sixteenth century Egyptian court documents ṭāʾifa indicates a "community" or "a professional guild."[23] The translation "a professional guild" fits the sense of the Venetian merchant community, who were surely a body of men characterized by a profession or trade, and the translation "guild" is not burdened by the anachronistic overtones of "nation."

In Lane's Lexicon the fifth term jins, a "genus, kind, or generical class comprising under it several species or sorts; or comprised under a superior genus in relation to which it is a species or sort," is the one term from among the five in question that can be associated with the concept of a people of common origin, hence, a "nation" as a people. However, "nation" bears the modern connotation of a sovereign territorial nation-state that exercises territorial law and has led to anachronistic assumptions about the documents in question.[24] Hartmann's translation, published in 1918, notes the ambiguity in the terms jins and ṭāʾifa; he translates jins "Nation" and ṭāʾifa "Volk." Lane, writing in the mid-nineteenth century and citing eleventh and fifteenth century sources, translates jins "kind" in accord with its pre-modern denotation as well as connotation and cites the example "people (al-nāsu) are of several kinds (ʾajnāsun, pl. of jins)."[25] Viladich translates jins, "kind" when it modifies "ship," but, "nation" when it modifies "people," as does Ruiz Orsato.[26] And while Viladich translates ṭāʾifa as "group," Ruiz Orsato translates ṭāʾifa as "nation."[27] Holt translates jins "nation," "all nations of people" al-nāsu ʾajnāsun. Wansbrough notes that the three terms – jins, ṭāʾifa, and jamāʿa – "appear to be used interchangeably with reference to the Florentines, and are rendered in the contemporary Italian translations as "nazione" or "generazione" without consistent distinction.[28] In some instances Wansbrough translates jins "nation," while in others "race." The following example of his translation of a decree attests these three terms in a single clause.[29]

Differentiating the terms as outlined above and avoiding the anachronistic "nation" the clause reads as follows:

In this clause the community (jamāʿa) of Venetian merchants is identified as being from the Frankish guilds (ṭāwāʾif), so Venetians are identified as a subset of Franks. There are other Frankish guilds, and so guilds are a larger category than Venetians. And Venetian merchants are a kind (jins), within the larger category of Frankish guilds (ṭāwāʾif). And the largest category of people identified in these documents is "Franks" of various merchant guilds ṭāwāʾif, some of which guilds are the Venetian kind (jins). And so it would seem that ṭāʾifa is the well-attested sixteenth-century "guild, or taxable unit" documented by Hanna.[34]

Since the modern legal concept of a nation-state that exercises national territorial law had not yet come into existence, we may conclude that these Arabic decrees of safe conduct were not identifying merchants by the modern concept of a "nationality" attached to a sovereign nation-state that exercised territorial law. Law attached to the territory of the nation-state in which a person carried on commerce emerged in Europe only in 1804 from the Napoleonic Code. By contrast, in the Middle East since pre-Islamic times, law attached to the person, not to the territory. For example, in the Roman Empire, only Romans had been subject to Roman law, while other non-Romans, for example, Germans or Egyptians, were subject to their respective community's laws. So too, in the Muslim-ruled world only Muslims were subject to Islamic Law. In the Muslim-ruled Middle East into the twentieth century Orthodox and Coptic Christians, Jews, each religious community was subject to law that was administered by its community. These commercial decrees issued from the twelfth to the seventeenth century granted legal identity to persons who did not have legal status in the Muslim-ruled world because they were not members of any of the resident religious communities. While the role and status of the Consul in their place of origin differed over time and space, in the Muslim-ruled world the decree of safe conduct gave the Consul the legal status of the resident head of his guild, and so granted that guild a legal status similar to that of a resident religious community, thus, in effect, continuing the legal practice of the pre-Islamic Middle East.[35]

Purpose: Security not Privileges

Rather than inferring that ruling Muslim dynasts understood these decrees as "their surrender of privileges to Christian nations," much less nation-states (a political form that had not yet emerged) the inference that ruling dynasts understood these decrees as legal contracts that facilitated commerce is more likely. The decree represents public notice of a contract entered into with a legal representative, the Consul, who is held responsible for seeing that his merchant guild fulfills the terms of the contract, i.e., abide by the terms of trade stipulated in the decrees. In return those merchants were granted security. And in these decrees the Consul is the head of a legal entity, which conceptually is more akin to that of a trade association, than to that of a sovereign nation-state.

The evolution of the meaning of the term "capitulations" in English also needs to be addressed. The Oxford English Dictionary cites the meaning of "capitulations," first attested in 1579 and as late as 1882 as, "A statement of the heads of a subject; summation, summary, enumeration. The making of terms, or of a bargain or agreement; stipulation."[36] It is unlikely that the Arabic documents written between the twelfth and into the seventeen century were understood as "surrender," and referring to them as "capitulations" has in the past prejudiced their consideration. Dilger raised this objection to referencing Ottoman decrees issued prior to the nineteenth century in Western literature as "capitulations."[37]

The translation of the Arabic term sharṭ, as "privilege"[38] is indicative of the prejudicial effects of the term "capitulations." The term sharṭ (pl., shurūṭ) has never had such a denotation or connotation. The term denotes and connotes "condition," or "stipulation."[39] In translations of these decrees sharṭ has been ignored, translated into contemporary Latin as "item," into nineteenth century Italian as "capitolo" (chapter), into German as "Bedingung," into Spanish as "cláusula" and "artículo" but only into English as "privilege."[40] The term is first attested in a letter dated 1184 acknowledging the request for and grant of conditions (shurūṭ) that were mutually agreed upon. In other early decrees clauses begin ͑alā ͗an, "on condition that."[41] The entry for these documents in the Encyclopaedia of Islam is surprisingly under the Arabic term imtiyāzāt, a term that does mean "privileges," but a term that is never attested in any Arabic or Turkish commercial decree.[42] Therefore, no evidence suggests that ruling dynasts who issued these decrees thought that they were "unconditionally surrendering trading privileges."

The decree of safe conduct should be understood as being a commercial decree that enabled non-resident merchant guilds to engage in commerce in Muslim-ruled lands in security. In the twelfth century safe conduct was issued in the form of a letter in response to a petition; the safe conduct is attested as a decree in the thirteenth century. The number of the clauses in a safe conduct increased over time, and clearly reflects responses to specific conditions that had given rise to conflict and that were raised in a petition to which the issuing dynast responds in the decree. The terms specified by the fourteenth century had expanded to include, for example: 1) in return for paying the import duties specified in the decree merchants were secure in their persons and property; 2) should a member of the guild die intestate while in Muslim-ruled territory his property would be held by his Consul until claimed by his heirs; 3) guild members were guaranteed access to repairs and maintenance of ships in Muslim-ruled ports, harbors and coasts, and 4) aid against pirates; 5) the guild was held collectively responsible for damages to the Muslim community by its members; 6) the guild was under the jurisdiction of its Consul in affairs between its members; 7) individual guild members who had a dispute with a Muslim would be heard by the port authority; but 8) could appeal to the Sultan's authority, and documentary examples attest such an appeal to the Sultan;[43] 9) if a Muslim had a dispute with an individual merchant, someone else from the merchant's guild could not be held liable for that merchant; 10) the guild's Consul was given a salary and residence as well as tax exemption on provisions imported for his personal consumption; 11) the guild was guaranteed that they would not be subject to the imposition of extraordinary exactions by local officials. In fifteenth and sixteenth century decrees, the number of articles and the specificity of rights and duties increases. Conditions are explicitly reciprocal in some decrees, while documentary evidence indicated that reciprocity was enforced.[44]

Pre-Islamic Origins

A Genoese translation from the Greek attests the Italian "privilegio." The Greek is itself a translation of a decree of safe conduct issued in Constantinople, presumably in a lost Turkish original, by its conqueror, Sultan Mehmet II, in 1453 on behalf of the resident Genoese merchant community.[45] The Greek, however, does not attest the term "privilege,"καὶ νὰ δίδουν κουμέρκιον κατὰ τὴν νομὴν καὶ συνήθειαν, "and they should grant/permit commerce (koumerkion) according to law and custom." This is rendered in the Genoese translation as "Scripto el presente privilegio , "I write the current privilege."[46] First, it is important to note that the Greek koumerkion is a transliteration of the Latin commercium.[47] And, the Latin term is the term for a Roman legal institution by which non-Roman citizens were granted the right to enter into contract with Romans according to the forms of Roman law. This right of "commerce" was enforceable in Roman courts and so gave legal status to non-Romans engaged in commerce in Rome.[48] Second, in classical Latin a privilegium, was a bill, or a law, and by the twelfth century privilegium had become "a special right," a "special law, a private law." The Genoese translation of the Greek "commerce" as "privilege," therefore, points to the likely continuation of the Roman institution of extending legal status to non-Romans for purposes of commerce. This decree issued by Sultan Mehmet II, the Conqueror, is not a treaty between nations. It is a decree of safe conduct enabling foreign merchants to carry on commerce in security in the Sultan's territories.

Islamic Origins

As indicated above, though Muslim jurists assert that the origin of these decrees is in the document known as amān, "safe conduct," western writers have dismissed such assertions as fiction based on the Western assumption that the safe conduct was a political instrument. Referring to the safe conduct, Schacht, citing Brunschvig, states that "these treaties did not develop out of the Islamic concept of amān." But Brunschvig provides no evidence for this assertion. His opinion, that the safe conduct, "derived much more from the notions and practice of Christianity itself, than from Muslim law, which is against it"[49] does not constitute evidence. Wansbrough also asserts as a matter of opinion that, "The retention of the technical term amān is to be understood as an attempt at the rhetorical concealment of juridical innovation."[50] The documentary record, however, shows a continuous tradition of the amān, "safe conduct," related to community identity attached to tax liability. First there are the similarities between these commercial decrees and the earliest amān, "safe conduct," granted by Prophet Muḥammad and recorded in the document referred to as "The Constitution of Medina."[51] Qalqashandi (d. 1418), as an official of the Mamluk chancery in Egypt, is widely acknowledged to have had access to original documents which he cites in his encyclopedia of chancery practice. In that encyclopedia he cites the amān, "safe conduct" issued on behalf of the people of Egypt by their conqueror in 640.[52]

This safe conduct, written in the third person impersonal, is a contract granting security in return for tax payment. It states, "If you agree to tax liability, we will grant you security."

A corpus of individual documents that has been characterized as "passports," "safe conducts," and "work permits," and that were issued 710 years after this safe conduct are also written in the third person impersonal, construed as a contract, and explicitly addressed to tax officials rather than to the individual on whose behalf the documents were issued.

These documents, originally characterized as "passports," reflect the same "commercial" purpose as a safe conduct. They enabled the bearer to move outside the village in which he was registered for purposes of tax payment, in order to conduct commerce, i.e., to sell one's labor in some other location in order to realize the wherewithal to pay one's taxes. These early work permits allowed the bearer to work outside his place of residence, where he was liable for tax purposes, for a specified period of time in order "to seek his livelihood" and "to fulfill his tax." Stern hypothesized that the origin of the later commercial decree, the manshūr, "unsealed," is a public document used for passes carried by peasants to ensure that they had not fled their village to avoid their tax liability.[55]

The clause in those work permits that resulted in their categorization as "safe conducts" is next attested thirty years later in 740 in three of the earliest individual tax receipts written in Arabic.[56] Both the work permits and the tax receipts are construed as contracts, but addressed not to the individual on whose behalf they were issued, but to tax officials, as are the later decrees granting "safe conduct" to Frankish merchant guilds.[57] And so, the safe conduct that established the terms of Muslim rule in Egypt, the work permit, and individual tax receipt are each constructed as a contract granting safe conduct in return for the assumption of tax liability. The work permit, individual tax receipt and the later commercial decree, however, were issued not to the individual or guild on whose behalf they were issued, but to Muslim officials who were responsible for honoring those contracts. The commercial decree granting safe conduct was a public document issued, upon request, on behalf of a specific professional community, a guild of merchants. It was issued on the explicit condition that the Consul of the guild assumed liability for that community's adherence to the conditions enumerated in the contract, including specifically stated tax liability. And we have records of the incarceration of merchants when they failed to do so.[58]

Conclusions

Commercial decrees were for purposes of trade by European merchants in Muslim ruled territories. As such, the commercial decree of safe conduct granted foreign merchant communities, effectively guilds, legal identity and so security in their conduct of commerce in the Muslim-ruled Mediterranean world. The safe conduct was issued as a public decree addressed to the Muslim officials of the issuing ruling dynast. The decree informed those officials that the foreign merchant community or guild, not "nation," named in the decree, had been granted safe conduct for the purposes of commerce in the territories under his jurisdiction. Documentary evidence indicates that since antiquity the construction of the identity of "foreign" merchants in the commercial grant of safe conduct was legal, and not national. Documentary and narrative evidence also indicates that the grant of safe conduct had both pre-Islamic and Islamic precedents.