3

with them after he had become master of their city' He was also allowed in the expedition against those of al Nadhir to take the whole booty to himself, and to dispose thereof as he pleased, because no horses or camels were made use of. in that expedition, but the whole army went on foot; and this became thenceforward a law; the reason of which seems to be, that the spoil taken by a party consisting of infantry only should be considered as the more immediate gift of GOD, and therefore properly left to the disposition of his apostle According to the Jews, the spoil ought to be divided into two equal parts. one to be shared among the captors, and the other to be taken by the prince, and by him employed for his own support and the use of the public. Moses, it is true, divided one-half of the plunder of the Midianites among those who went to battle, and the other half among all the congregation;" but this, they say, being a peculiar case, and done by the express order of GOD himself, must not be looked on as a precedent. It should seem, however, from the word of Joshua to the two tribes and a half, when he sent them home into Gilead after the conquest and division of the land of Canaan, that they were to divide the spoil of their enemies with their brethren after their return; and the half 8 which was in succeeding times taken by the king was in all probability taken by him as head of the community, and representing the whole body. It is remarkable that the dispute among Muhammad's men about sharing the booty at Badr arose on the same occasion as did that among David's soldiers in relation to the spoils recovered

God's fifth
of the spoils

used.

from the Amalekites,1 those who had been in the action insisting that they who tarried by the stuff should have no part of the spoil; and that the same decision was given in both cases, which became a law for the future, to wit that they should part alike.

The fifth part directed by the Quran to be taken out of -how to be the spoil before it be divided among the captors is declared to belong to GOD, and to the apostle and his kindred, and the orphans, and the poor, and the traveller: 2 which words are variously understood. Al Shafii was of opinion that the whole ought to be divided into five parts; the first, which he called God's part, to go to the treasury, and be employed in building and repairing fortresses, bridges, and other public works, and in paying salaries to magistrates, civil officers, professors of learning, ministers of public worship, &c.; the second part to be distributed among the kindred of Muhammad, that is, the descendants of his grandfather Hisham, and of his great-uncle al Mutallib, as well the rich as the poor, the children as the adult, the women as the men, observing only to give a female but half the share of a male; the third part to go to the orphans; the fourth part to the poor, who have not wherewithal to maintain themselves the year round, and are not able to get their livelihood; and the fifth part to travellers who are in want on the road, notwithstanding they may be rich men in their own country. According to Malik Ibn Ans, the whole is at the disposition of the Imám or prince, who may distribute the same at his own discretion, where he sees most need. Abu'l Aliya went according to the letter of the Quran, and declared his opinion to be that the whole should be divided into six parts, and that GOD's part should be applied to the service of the Kaabah; while others supposed GoD's part and the

11 Sam. xxx. 21-25.

2 Quran, c. 8.

• Note, at Shafii himself was descended from this latter

Al Baid. Vide Reland, De Jure Milit Mohain., p. 42. &c.

5 Idem.

apostle's to be one and the same1 Abu Hanifa thought that the share of Muhammad and his kindred sank at that prophet's death, since which the whole ought to be divided among the orphans, the poor, and the traveller. Some insist that the kindred of Muhammad entitled to a share of the spoils are the posterity of Hasham only; but those who think the descendants of his brother al Matallib have also a right to a distributive part, allege a tradition in their favour purporting that Muhammad himself divided the share belonging to his relations among both families; and when Othmán Ibn Assán and Jubair Ibn Matam (who were descended from Abd-as-shams and Naufal, the other brothers of Hásham) told him that though they disputed not the preference of the Háshamites, they could not help taking it ill to see such difference made between the family of al Mutallib and themselves, who were related to him in an equal degrec, and yet had no part in the distribution, the prophet replied that the descendants of al Mutallib had forsaken him neither in the time of ignorance nor since the revelation of Islam, and joined his fingers together in token of the strict union between then and the Hashamites.3 Some exclude none of the tribe of Quraish from receiving a part in the division of the spoil, and make no distinction between the poor and the rich; though, according to the more reasonable opinion, such of them as are poor only are intended by the text of the Quran, as is agreed in the case of the stranger; and others go so far as to assert that the whole fifth commanded to be reserved belongs to them only, and that the orphans, and the poor, and the traveller, are to be understood of such as are of that tribe. It must be observed that immovable possessions, as lands, &c., taken in war, are suoject to the same laws as the movable, excepting only that the fifth part of the former is not

actually divided, but the income and profits thereof, or of the price thereof, if sold, are applied to public and pious uses, and distributed once a year, and that the prince may either take the fifth part of the land itself, or the fifth part of the income and produce of the whole, as he shall make his election.

SECTION VII.

OF THE MONTHS COMMANDED BY THE QURAN TO BE KEPT SACRED,

AND OF THE SETTING APART OF FRIDAY FOR THE ESPECIAL
SERVICE OF GOD.

sacred

Ir was a custom among the ancient Arabs to observe The four four months in the year as sacred, during which they months. held it unlawful to wage war, and took off the heads from their spears, ceasing from incursions and other hostilities. During these months whoever was in fear of his enemy lived in full security, so that if a man met the murderer of his father or his brother, he durst not offer him any violence.1 "A great argument," says a learned writer, "of a humane disposition in that nation, who being, by reason of the independent governments of their several tribes, and for the preservation of their just rights, exposed to frequent quarrels with one another, had yet learned to cool their inflamed breasts with moderation, and restrain the rage of war by stated times of truce."2

This institution obtained among all the Arabian tribes, except only those of Tay and Khuzáah, and some of the descendants of al Harith Ibn Kaab (who distinguished no time or place as sacred), and was so religiously observed, that there are but few instances in history (four, say some, six, say others) of its having been transgressed; the war which were carried on without regard thereto being there

Al Kazwini, apud Golium in notis ad Alfrag., p. 4, &c Al Shahristáni, apud Poc. Spec., p. 311, Al Jawhari, al Firauzab.

2 Golins, ubi supra, p. 5.

3 Al Shahristáni, ubi supra. See ante, p. 190.

4 Al Mughultaï.