pafs any decree whatever, according to What was before obferved,
that “ the ufurper becomes proprietor of what he has ufurped.”
Cafe o f a
Mujfulman
ufurping the
property of
an alien who
afterward
becomes a
Mujfulman.
I f a Mujfulman, having procured a protect ion, go into a foreign
country, and there ufurp the property of an alien, and the MuJJulman
and the alien (having become a Mujfulman) come into the Mujfulman
territory, a notice is to be iffued to the Mujfulman ufurper, in the manner
of a decree, directing him to reftore the ufurped property to the
converted alien; but the Kdzee muft not iflue any politive decree upon
the fubjedt, for the reafon before mentioned, that the ufurper becomes
proprietor of what he has ufurped.—The notice in the manner o f a
decree is becaufe the article ufurped has become the property of the
ufurper by an invalid appropriation, on account of the breach of com-
padt, which is unlawful.
Cafe,of one I f two Mujfulmans go under protedtion into a foreign country, and
flaying an- one of them kill the other, either w ilf ully or accidentally, no retaliaxwf'mf“
tion is incurred; but the .fine o f blood is due from the flayer’s proforeign
coun- perty,— and an expiation is alfo incumbent upon him, where the act
was accidental.— The reafon why expiation is incurred is that the text
of the Koran, upon which the obligation of it is founded, is general,
and is not reftridted to the Mujfulman territory.— The reafon why
the fine of blood is due, is that the protedtion of the perfon, eftablilh-
ed by refidence within the Mujfulman territory, is not annulled by
the fupervenient circumftance, namely, the going under protedtion
into a foreign country:— and the reafon why retaliation is not incurred
is that the inflidtion of retaliation is impradticable without the power*,
and no power exifts in the foreign country in the prefent inftance, as
power cannot be eftabliihed but through the Imam, and the colledtive
body of Mujjulmans.— T h e reafon why the fine of blood is due from
Meaning the executive power, adting under the regular lawful authority.
the
the property of the flayer, in the cafe of wilful homicide, and not from
his tribe, is that the fine for wilful murder is in' no. cafe due from the
tribe;_and the reafon why it is not due frorp the tribe, in the cafe of
accidental homicide, is that, in the cafe ift'queftion, the tribe of the
flayer have it not in their power to prevent the flayer from committing
the homicide, or to guard againft i t ; as they are in the Mujfulman
territory, and the flayer in a foreign country; and the fine for
homicide falls upon the tribe of the flayer, only on account of
their nc(rlcdting to guard againft it, which is not the cafe in this
inftance.
I f of two Mujfulmans, who are captives in a foreign ftate, one kill Cafe of one -
the other,—or, if a Mujfulman refiding as a merchant in a foreign killcountry
kill another who is a captive there,—in either cafe nothing is »£ »«other,
due from the flayer, except expiation where the act was accidental.—
This is according to Haneefa.— The two difciples maintain that, in
the former cafe, the fine of blood is due, whether one of the captives
have (lain the other wilfully or accidentally; becaufe the protedtion of
their perfons is not annulled by the fupervenient circumftance,
(namely captivity,) in the fame manner as the protedtion o f a Muf-
fulman's perfon is not annulled by the fupervenient circumftance of
his obtaining protedtion and going into a foreign country under its influence,—
as was before demonftrated:— but retaliation is not incurred,
becaufe power does not exift in a foreign country, and the exadtion of
retaliation depends upon the exiftence of power, as has been already
flated.— The fine of blood is alfo due from the property of the flayer,
and not from his tribe, as before mentioned.— T h e argument of Haneefa
is that a Mujfulman, by becoming a captive to the infidels, is a
dependant on them, as he is fubjedted to them, and in their power;
(whence it is that he is jlationary from their being Jlationary, arid a
traveller from their travellings) and fuch being the cafe, the protection
of his perfon is abrogated; he is therefore in the fame predicament
with a Mujfulman who has never yet retired out of the infidel
C c 2 territory.