Christian philosophy offers few more striking mixtures of humanity and democracy. It was also the law when the foundling was to be maintained, the expense of bringing up the child was to be paid out of the public treasury, and in favor of this law the opinion of Omar was cited. A very good reason given for this was that “where the foundling dies without heirs, his estate goes to the public treasury.”
The person who took up the foundling was known as a Multaqit and it was the law of that day that the Multaqit could not exact any return from the foundling on account of maintenance except where he had been ordered by the magistrate to bring up the foundling at its own expense, in which case the maintenance “is a debt upon the foundling, because, the magistrate’s authority being absolute, he is empowered to exact the return from the foundling.”[273]
According to Al-Quduri,[274] this was the proper thing to do as the letting out was regarded as conducive to the education of the Laqeet. In the Jami Saghir the hiring out of the foundling was opposed on the ground that the Multaqit had no right to turn the faculties of his foundling to his own advantage. The opinion of Shaykh Burhan-ad-din Ali was that Al-Quduri was right and that the child did gain by being let out.
In Al-Siyar there is given a specific injunction that children must not be slain:
“It does not become Mussulmans to slay women or children or men that are aged, bed-ridden, or blind, because opposition and fighting are the only occasions which make slaughter allowable (according to our doctors), and such persons are incapable of these.”[275]
In the minute instructions in regard to divorce, much care is given as to the disposition of a child. Where the husband and wife separate, the law was that the child went with the mother, and this was based on a decision of the Prophet.
“It is recorded that a woman once applied to the prophet, saying ‘O, prophet of God! this is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care’; to which the prophet replied, ‘Thou hast a right in the child prior to that of thy husband, so long as thou dost not marry with a stranger.’”[276]
If the mother of an infant died, the right of Hidana, or infant education, rested with the maternal grandmother. So deeply was this idea imbued that even if the mother were a hated Zimmi or female infidel subject, married to a Mussulman, she was still entitled to the Hidana of her child until the time when the child was capable of forming a judgment with respect to religion. When such a time arrived the child was generally taken from the mother if she continued to be an infidel, in order that no injury might come to it from imbibing the doctrines of a Zimmi.