Captives
imift no tbe
releafed gratuit
o:<Jly.
All cattle
ana baggage
which cannot
be carried
away upon a
retreat muft
be deftroyed.
I t is hot lawful to confer a favour upon captives by releafing them
gratuitouflv,— that is, without receiving any thing in return, or their
becoming Zmimees, or being made ilaves. Shafei fays that fhewing
favour to captives, in this way is lawful, heeaufe the prophet fhewed
favour, in this way, to fome of the captives taken at the battle of
Btddir. T h e arguments of our dodtors upon this point are twofold
: f i r s t , G od fays in the Koran “ s l a y i d o l a t e r s ,
w h e r e v e r y e f i n d t h e m ;”— s e c o n d l y , the right of enflaving
them is eftablifhed by their being conquered and captured, and hence
it is not lawful to annul that right without receiving fome advantage
in return, in the fame manner as holds with refpeft to all plunder;
and with refped to what Shafei relates, that “ the prophet fhewed
“ favour, in this way, to fome of the captives taken at the battle of
11 Biddir, ’ it is abrogating by the text of the Koran already quoted.
W h e n e v e r the Imam is defirous of returning from a hoftile country
into the Mujfulman territory, if he fhould happen to have along
with him baggage-cattle, fuch as oxen, camels, and fo forth, and be
not able to convey them into the Mififulman territory, it behoy.es him
to flay and burn them; and he muft not hamftring them, or turn them
loofe. Shafei fays that he fhould leave them, becaufe the prophet
forbids us to flay animals for any other purpofe than to eat them.
Our dodlors argue that the flaying of animals is lawful for any, approved
end; and what end can be more approved than breaking the
ftrength of the infidels who are enemies ? After flaying them they
muft be ournt, in order that the infidels may not derive any advantage
from them, whence this anfwers the fame. purpofe as deftroying
buildings or dwelling places * : contrary to burning before flaying, as
the prophet has forbidden this; and contrary, alfb, to ham-firinging,
as this is disfiguring, and that alfo is forbidden f . In the fame manner,
* Probably meaning the buildings, tsfe. which the Mujfulmans, during their ftay in the
hoftile country, may have conftrudted for their own accommodation,
t Chap. I I . p. 148 .
the
the Imdam muft burn all fuch military ftores as are capable of being
burnt; and what cannot be deftroyed in this way muft be buried iu
fome place which the infidels are ignorant of, in order that they may
not make advantage of it.
T h e Imdm muft not divide the plunder iu the country of the The plunder
enemy, but muft make the diftribution of it in the Mujfulman territory, divided until
Shafei holds that it maybe divided in the country of the enemy: '
This diverfity of opinion is founded in a difference of tenets; fot
with our doctors the plunder is not the property of the troops, until
it be brought into the Mujfulman territory,— whereas, with Shafei it
is the property of the troops before it be brought into the Mujfulman
territory. F r o m this difference in principle proceed a number of cafes
concerning which they differ, as related at large, by the author, in the
Kafdyat-al-Moontihee. T h e argument of Shafei is that the caufe of
right of property in plunder is conquefi, where that conqueft extends over
property of allowable ule, in the lame manner as conqueft is the caufe of
rioht of property with refpe& to game ; now conquefi means nothing
more than fubjeSlwn and fiiziu ; and thole are fully eftablilhed with re-
Ipe£t to the plunder in queftion. T h e arguments of our dodlors upon
this point are twofold: f i r s t , the prophet has forbidden th efiale of plunder
in the country o f the enemy ; and as a diftribution of property is in
effedt a fale, a prohibition in refpedt to thefale extends to the diftribution
likewife :— s e c o n d l y , in the cafe in queftion conqueft is not eftablilhed
; \>c.zzxsl& conqueft fignifies JubjeBion zn&feizin, of fuch a. nature
that the feizer is capable of protefting the plunder, and alfo of
carrying it from place to place; but in the cafe in queftion,. the
captors of the plunder may poflibly be incapable of carrying it off
into the Mujfulman territory, as the infidels may be able to refeue it
from the hands of the Mujfulmans, fince the property is ftill in their
country.— Some allege that the radical ground of difference between Ha-
neefa and Shafei turns upon this queftion.— Do the effeSis of right of
property (fuch as the lawfulnefs of coition, fale, and fo forth*,) take
* W ith refpe& to the women or property taken.
place