Infidels do
not/ b y capture,
make a
property o f
the Modab-
b irs, Am -
Walids, or
M okatibs o f
Mujfulmans \
nor o f an ah-
J'cended Have.
If the infidels attack and conquer a Mujfulman territory, yet they
do not, by conqueft and conveyance into' the infidel territory, become
proprietors of the Modabbirs of Mujfulmans, nor of their Am-Walids or
MoMtibs, or of freemen, whether Mujfulmans or Zimmees; whereas
MuJJulmans, on the contrary, by conqueft in the infidel territory, become
proprietors of all thofe; becaufe conqueft, which isa caufeof right
of property, produces a right of property in relpeft to a fubjedt which
is capable of i t ; and the fubjedt capable of it is neutral property; now,
a free Mujfulman, and fo allb a free Zimmee, are not neutral property,
being in their own nature protected and inviolable; and in the fame
manner, their Modabbirs, Am-Walids, and Makdtibs, becaufe in thefe
alfo freedom exifts in one fliape: contrary to the perfons of infidel aliens,
whether they be free, Am-Walids, Modabbirs, or MoMtibs, becaufe
the legiflator has withdrawn protediion from them, and has made
them neutral property, in retribution for their fin of infidelity.
If the Have of a Mujfulman defert into the infidel territory, and the
infidels make him captive, they do not become his proprietors, according
to Haneefa.— T h e two difciples fey that they become the
proprietors, becaufe the protediion of the Have on behalf of his proprietor
exifted in virtue of the proprietors feizin* or adtual pofleflion
of h im; and in the cafe in queftion this pofleflion is deftroyed; whence
it is that if the infidels were to take the deferter within, the Mujfulman
territory,, and carry him off to their own country, they would become
his proprietors.— The argument of Haneefa is that the Have,
upon going out of the Miffulman territory, becomes at his own dif-
pofel, in the feme manner as a freeman; becaufe a regard to his being
in pofleflion of his own perfon had ceafed only in order that the poffeffion
of his mafter might be eftablifhed, to enable him to
make ufe of it; and, in the cafe in queftion, upon the pofleflion of
the mafter being deftroyed, the flave’ s pofleflion of his own perfon
takes place, and he becomes in his own nature inviolable, in the feme
manner
manner as a freeman; wherefore he no longer remains a fubjedt of
acquifition: contrary to an abfeonded Have whilft in the Mujfulman
territory, fince he ftill continues in the pofleflion of his mafter, in virtue
of the continuance of the Mujfulman power within that territory.
So long, therefore, as the pofleflion of him by the mafter continues,
his pofleflion of his own perfon does not appear, wherefore he is not
at his own difpofel; and hence, if the infidels were to take and cariy
him off to the infidel territory, they would become his proprietors.-
It is proper to obferve in this place, that as the Have, in the prefent
inftance, is not the property of thefe infidels, the former proprietor is
entitled to reclaim him without any return in all the cafes before
treated of,— that is, in cafe of the infidels having prefented him in gift
to any perfon, who afterwards brings him into the Mujfulman territory,'—
or in cafe of any perfon purchafing, and fo bringing him into-
the Mujfulman territory,— or in safe of the Mujfulmans making him
captive in the way of plunder, and bringing him into the Mujfulman
territory. In this laft cafe, alfo, the former proprietor is at liberty to:
reclaim him without any return either before or efter the diftribution of
the plunder; and if he fhould take him, efter the diftribution, from
the perfon to whofe {hare he has fallen, that perfon muft be reim-
burfted out of the public treafury, a proportionable reimburfement
from each individual being impoflible, fince the warriors are by that
time all feparated and gone different ways, and cannot again be brought-
together;— It is alfo to be obferved, that the perfon who had obtained;
the flave by gift, purchafe, or plunder, is not entitled to take any
reward on account of the flave from the proprietor;, becaufe either-
of thefe appears to have adted folely on his own-account, and under a
conception that the flave is thereby rendered his property. -
If a camel, the property of a Mujfulmatti ftray into-the country
of the infidels, and they lay hands upon it, they become the proprietors,
in virtue of the eftablilhment of their fuperiority over i t ; fince
a brute is incapable of being at its own difpofel, in fuch a manner that
the
A n abfeonded
Have may, in
every inflan
ce, be reclaimed
by
the proprietor.
A flray an imal
becomes
the property
o f the infidel#-
b y capture*