but an alien
does not be*
come a Zimmee
by marrying
a female
infidel
fubjedt.
xCafe o f an
alien returning
to his own
country and
leaving property
in the
Mujjulman
territory.
Ip a protected alien marry a female infidel fubjeft, yet he does not
become a Zimmee, becaufe it is in his power to divorce her, and fo
return into his own country ; his marriage, therefore, does not necef-
.farily infer his defign of becoming a rejident.
If a protected alien return into his own country, and leave property
in depofit with a Mujfulman or Zimmee, or leave a debt due from
them .to him,— upon going into his own country his blood becomes
neutral * , becaufe by that aft he annuls his proteftion : and with refpeft
to fuch of his property as remains in the Mujfulman territory,
.the rule to which it isTubjeft depends upon circumftances ;— for if the
alien, after returning to his own country, be made a captive,— or, if
an army of Mujfulmans conquer that country, and he be {lain, the per-
fon indebted to him becomes difeharged from the debt, and his property
left in depofit becomes public property-j*, becaufe the depofit is
ftill virtually in his hands, fince the feizin of his truftee is equivalent
to his own feizin ; the property in depofit, therefore, becomes public
property in the fame manner as his perfon if he were made captive. The
reafbn why the debt due to him is remitted is that any thing due to a
perfon is accounted to be in his poffeffion, only as he is empowered to
claim it; now, in the prefent inftance, his claim has ceafed; and as the
debtor has pofleffion of it prior to any other perfon, it becomes his ex-
clufive right; and he is confequently exonerated from the debt.— If,
however, the perfon in queftion be flain, without the Mujfulman army
fubduing the country,— or, if he happen to die, in either cafe the debt
or depofit goes to his heirs; becaufe as his per Jon., in this cafe, has not
become fubjeft to the laws of plunder, it follows that his property is not
plunder, for this reafon, that the effeft of the proteftion ftill remains
with refpeft to his property, which therefore goes to him, or to his
heirs after his deceafe.
* That is, he may be flain without incurring any penalty.
t Arab /*<?.—Meaning that portion of the plunder which belongs io the fiatt.
I t
It is to be obferved that-whenever property belonging to aliens is
feized by Mujfulmans, without war, it muft be expended in defraying
all charges of a public nature, in the fame manner as tribute. The
learned define this to be land, (for inftance,) the proprietor of which
has been ejefted by the Mujfulmans,— or capitation-tax:— and this property
is not fubjeft to the impofition of a fifth.— Shafei holds that a
fifth is due both from the land in queftion, and alfo from capitation-
tax.— The arguments of our doftors upon this point are twofold.
f ir s t , it is recorded of the prophet that he exafted capitation-tax,
and lodged it in the public treafury, without dedufting the fifth:
secondly, the property in queftion has been feized in confequence
of fear for the Mujfulmans operating upon, the hearts of the infidels,
without fighting. It is otherwife with plunder, as that.is feized in confequence
of two circumftances;— one,, the prowefs of the warriors in
fight;— the other, the collective force of the Mujfulmans; whence a fifth
is due to the ftate on th&former fcore, and the remainder to the warriors
on the latter', and as the former reafon.does not exift with
refpeft to the property in queftion, it follows that a fifthis not due
from it..
If an alien come, under a proteftion, into the Mujfulman territory;
and his wife and children remain in the alien country, and he have
alfo property there, lying as a depofit, feme with an alien, fbme with
a Zimmee, and fome with a Mujjulman, and he become a Mujjulman in
the Mujfulman territory, and the Mujfulmans afterwards fubdue his
country, in this cafe the whole- of his property, together with his
wives and children, as aforefaid, are public property,-—that is, plunder.
His wives and adult children are public property, as being aliens,
and adults, and therefore not dependants; and in the fame manner,
the embryo in his wife’s womb, (according to what has been already
ftated, in treating of the diftribution of plunder;) and fo alfo, his'infant
children are public property, becaufe an infant child is not held
to be a Mujfulman, in dependance of the Iflam of his father, unlefs he
be
Every thing
gained from
aliens without
war is the property
o f the
Hate.
Cafe o f an
alien, whole
family and
effe&s are in
the alien
country, becoming
a
Mujjulman in
the Mujjulman
territory;