■ copper, it is fubjedt to a Zakdt of ont fifth , according to our dodtors;
and this Zakdt is termed Khams * .—fihcfei has aflerted that nothing
whatever is due upon a mine, becaufe it is free to the firft finder indifferently,
and is therefore the fame as game ; but yet, if the metal
be produced from the mine, it is fubjedt to Zakdt independent of
Haw/dn-Hdwl, that having been Conftituted as a condition of Zakdt
merely to afford time for increafe, whereas here the identical fubjedt
itfelf (the metal) is increafe of property; wherefore the lapfe of
Hawlan-Hawl is not in this inftance required. T h e arguments of
our doctors, on this fubjedt, are twofold;— first, the ordinance of
the prophet, who diredted that upon Rikaz there fhould be impofed a
fifth; and the term Rikaz applies to mines,- as was already demon-
ftrated ;— secondly, the mine, as being difcovered in tithe or tribute
lands, muft at one period have been the property of the infidels, and
afterwards have fallen into pofl'eflion of the Muffulmans by conqueft,
wherefore the whole falls under the defcription of Ghaneemat, or
plunder; and one fifth is due upon plunder :— contrary to the cafe of
game, the property in which cannot be traced to any antecedent
proprietor.
Objection.— I f the mine be thus refolved into plunder, it fhould
follow that, as fuch, the produdt of it is the common property of all
the warriors.
R eply.— The property of the warriors is eftablifhed in the mine
conftrudtively, in virtue of the eftablifhment of their property in the
furface of the territory : but the difcoverer of the mine is the a&ual
acquirer of i t ; wherefore the property o f the warriors is eftablifhed in
one fifth, their right being only confiruElive; and that of the difcoverer
is eftablifhed in the remaining four fifths, as his right is aBual; whence
it is that thofe four fifths are referved to him..
If a perfbn difcover a mine within the precincts of his own habitation,
nothing is due upon it, according to Haneefa. T h e two
• ' Literally a fifth. It Is elfewhere tranflated double tithe.
difcipleS
difciples hold that a fifth is due upon that alfo, in conformity to the
traditionary ordinance already quoted, becaufe that applies equally to
the prefent cafe. Haneefa argues upon this, that a mine is. a confti-
tuent part o f the land in which it lies, as being fuppofed to have been
originally created1 with it, and nothing being due upon the ground
generally, it follows that nothing is due upon any particular portion of
it, (fuch as the mine, for inftance,) becaufe a part does not differ
from the whole ■* contrary to the cafe of a Kanz, which is no confti-
tuent part óf the foil, as not having been originally created with it,
but depofited there by forne perfbn.
If the laid mine be difcovered, not actually in the houfe of the
finder, but in lands, fubjedt either to tribute or tithe, which are his own
elpecial and exclufive property, in this cafe there are two opinions
recorded of Haneefa's doctrine; one, that no Zakdt whatever is due,
any more than i f the miné had been difcovered within the houfe of the
finder; another, that a fifth is due upon it: the former o f thefe
opinions is mentioned in the Mabfoot, and the latter in the Jama
Sagheer: and the principle upon which the latter opinion proceeds is,
that between a houfe and lands there is a manifeft diftindtion, becaufe
the ground on which a houfe ftands is not fuppofed to be any way
productive of the fruits of the earth (whence it is that no tax of any
kind is levied upon it, infbmuch that, i f a date tree were by accident
to grow within a dwelling, and to produce fruit, yet nothing is due
upon the fruit,) whereas lands, on the contrary, as being productive,
are not thus exempted from tithe and tribute, and con-
fequently z fifth is due upon all mines which are found in them.
If a perfon find a Kanz, or depofit, o f buried treafure, a fifth is
due upon it, according to the opinions of all the doctors, in conformity
to the traditionary ordinance already quoted, the expreffion there ufed
[■ R/Azai] applying to Kanz. It is to be obferved, however, that i f the
treafure in queftion be coin, bearing the impreffion of Muffulman
V ol. I. G money,
or in lands
which are
private pro^
p erty:
and o f buried
treafure s.