■ once laid to Moorkbeeb-Ein- Abee-Silmn. “ Mo more appertains to you o f
“ the property o f the perfon you have fa in , than your Imam may think
“ proper to allow."— With retpecl to the fay ing of the prophet cited by
Shafei, it bears the conflru£tion both of the award o f the law, and alfo.
of gratuity; and our doctors receive it in the latter fenfe, becaufe of the
laying above quoted, and alio, becaufe no regard is to be had to any fu peri
or degree of expofure or fatigue in war, as. was already demonftrated
in treating of the operations of cavalry. By Sillib is underftood whatever
may be found upon the perfon of the flain, fuch as clothes, wea- .
pons, and -armour; and alfo the animal; upon which he rode, together
with the equipage, fuch as the faddle and fo forth,— or whatever
may be found upon him in his girdle or pockets, fuch as a purfe
o f gold and fo forth:— but any thing beyond thei'e is not Sillib ; nor is
any thing fo- which iscarried upon another animal by his fervant.
Gratuitydoes I t is a rule, with refpedt to gratuity, that the right of others in
propertyuntS whatever may be fo bellowed is terminated : but yet it does not bel
t be brought come the property of the perfon to whom it is awarded until it be
into the Maf- r r J r
folmau terri- fecured within thzMuJfuIman territory, according to what has been
already advanced; and confequently, if the Imam were to declare,
“ Whoever finds a female fiave, Jhe is his," and a Mujfulman afterwards
find a female Have, and afcertain his right in her, yet it is not
lawful for him either to have carnal connexion with her, or to fell
her, in the hoftile country.— This is according to the two Elders*
Mohammed afferts that he may lawfully do either, becaufe he holds
that gratuity ellablifhes a right iu a thing in the fame manner as,
dillribution of plunder in a hoftile country , orpurchafe from the hands
of an alien:— and fome allege that Mohammed alfo holds that fatif-
fadlion is due from any perfon who Ihould deftroy this Ipeeies, of plunder,—
whereas, with the two Elders., it is not due.
C H A P .
C H A P - V .
Of the Conquefts of Infidels.
Ip-infidels of furkifian conquer infidels of Rome*, and make captives
of them or feize their property,, they are the rightful proprietors -]-,
becaufe hero is eftablilhed. a fubjugation over; neutral ^property,,
which is a cattfe o f propriety, as fliall be hereafter fhewn: and if
Muffulmans Ihould. afterwards-conquer thofe infidels, of Eurkifian,
whatever property of the infidels-of Rome they may. find with thefe
infidels of Ewkiftan is lawful to them, in the fame manner, as their
other original, property.. In the fame manner, if infidels obtain poffef-
fion,. by conqueft, of the effedts-of Muffulmans, and fecure the fame
(jhat is,, carry them into their own.country,) they are the rightful
proprietors, thereof- Shafei maintains that: they do not- become the
proprietors,, becaufe their conqueft over the property o f Muffulmans is.-,
unlawful both in-the beginning and alfo in the end;.and.he holds
that what is unlawful cannot create a right of property. Our.dofitors,.
however,. allege that as the conqueft of- infidels over the.property of.
Muffulmans is a.conqueft over neutral property, it: creates.a-right, in
the fame manner as the conqueft of .Muffulmans,would give them a
right-over the property of; infidels. T h e ground of this opinion is
T h is term is ufed by the people o f A fi* in a very extenfive fenfe, comprehending
the whole of the antient Roman empire: it here applies, in particular, to the eaftern provinces
o f the T urkijh empire, which fome European writers diftinguilh by the appellation
cftRom elia, T u rkifta n is a.large region lying to the eaft and fouth-eaft of-the Cajpian lea.
-j- Meaning that the right o f the original proprietors isdifTolved and rendered v o id ..
Arab. Mokah. The-,meaning o f this term, is explained at large elfewhere. •
Infidels acquire
a right
fn the property
they
gain by conqueft,
whether
frpm infidela,
or from Mufi~
fiulmans i •
3" that