out further bloodflied.— Shafii fays that in neither cafe are their
•wounded to be flain,, or thofe of them who fly from battle purfu'ed,
becaufe the flaying of them is not lawful but' for the purpofe of repul-
fion, and upon a rebel being difabled, or flying from battle, the flaying
of him is no longer fo r the purpofe o f rcpulfion,. and confequently is
illegal.. T o this, however, it may be replied that the flaying of them
turns upon the argument ofhoftility, not upon aElual hoftility, (as was
before ftated,) -and where they poflefs a referved force to which the
wounded or the fugitives may join themfelves, this, argument ofhoftility
exifts.
T he families, o f rebels are- not to be reduced to flavery, nor their
of rebels re- Dropertv divided' amona; the Muffulmans, fin the manner of plunder. ] main mvio- r r j ° M
late. The reafons for this are twofold:— f i r s t , Alee, in the war ot jaml,
orderedthat “ the flaves o f the rebels fhould not be (lain, nor their
“ wives or families-enflaved, nor their property taken,” and he is
legiflator in this particular; (the expofition o f that paflage, in the orders
of Alee, that '■’■ the Jlaves Jhould not lie flain, is,, that they are not
to be flain, ’where there is no body o f the rebels to which they might
unite themfelves, i f fuffered to go;— for where there is fuch a body,,
it is at the diferetion of the Imam either to kill the flaves, or to im-
prifon them, fo as to prevent their joining this body-:)— s e c o n d l y , .
rebels are Muffulmans, andlflamifn occafions protection to perfon and
property.
■ The arms of T he Muffulmans need not hefitate to fight rebels with fuctiof their
turnedagainft arms as fall. into their hands, provided they, have occafion for them.,
themfelves. Shafii maintains that this is unlawful^ and the fame difference o f
opinion fubfifts refpeCtingfuch horfes of the rebels as fall into the hands
of the Muffulmans. The argument of Shafii; is that as thefe are the
property of Muffulmans., the ufe of them, unlefs with confent of the
owner, is illegal. The arguments of our doctors upon thispointare
twofold.— first, Alee, divided the arms of the rebels among his followers
.
lowers in Bafra, and this divifion was made on account of neceffity,
and not as a transfer of property:— s e c o n d l y , as it is lawful for the
Imdm to take the arms of others who are not rebels, and to divide them
amonv the troops, to ufe according to neceffity, it follows that the
fame aft with refpeCl to the property of rebels is lawful in the Imdm a
fortiori, on this ground, that it is lawful to adopt a fmall evil, for the
purpofe of repelling a great one. It is incumbent on the Imdm, moreover,
to detain the property of rebels in cuftody; and»he muft neither
fhare it as fpoil, nor reftore it to the owners until they repent; but
upon their repentance, he may reftore to them their property: their
property is not to be fhared as fpoil, becaufe rebels are Muffulmans, and
IJlamifm occafions protection to perfon and property, as was before
ftated;— but it is to be detained in cuftody, as their wicked nefs may
be repelled by cutting off their refources; their property, therefore, is
to be held in cuftody although the Muffulmans have no occafion for i t :
(fuch horfes, however, as are among their property, muft be fold,
becaufe keeping the price is both eafy, and alfo advantageous to the
owner:)— and their property muft bp reftored to them upon repentance,
becaufe the reafon of detention ceafes upon repentance, and the
property is not fpoil.
I f the rebels fhould have exacted tithe or tribute of the inhabitants
of a territory which they -had overcome, the Imdm muft not again
levy tithe or tribute there, becaufe the Imdm is veiled with authority
to colleCt thofe taxes of the people, in virtue o f the protection he affords
them; and in the cafe in queftion he has not protected them. If, then,
the rebels expend the tithe and tribute upon their proper objects, it
fuffices with refpeCt to the people of whom thofe taxes had been col-
lefted by them, and the tithe and tribute owing by them is duly rendered,
as the claimant to them has received his right:— if, however,
the rebels have not expended the tithe or tribute upon their proper
objects, the people of that diftriCt are bound in confidence to pay them
over again, becaufe. what they firft gave has not been applied to the
K k 2 , proper
The property
of rebels mult
be held in
cuftody«
and reftored
to them upon
their repent-
ance.
7’ethe or tri-
butt, if exacted
by rebels,
cannot be levied
a fecond
time: