money, (fucli as the words of the Creed* ) the Kanz fland's as a
Lookta, or trove-property,, the laws concerning which are explained
elfewhere :— yet, if it bear the impreflion of infidel coinage,, (.fuch-as
the image of a feint or idol,) a fifth is due upon it in all cafes,— that
is to fey, whether a perfon may have found the feme in his own
grounds, or in thofe of another, or in common lands which are not
the property of any perfon ; and thefifth is thus due upon the authority
of the traditionary ordinance to which we have juft referred.— It
is here proper to remark, that i f the treafure.be found in common
land, four fifths of it appertain to the finder, as having recovered it,
becaufe the other warriors had no information concerning it, and of
courfe no fhare in the difeovery; and confequently he has an exclufive
right to i t :— and the feme rule obtains i f it be found in appropriated
land, whether fuch be his own property, or belonging to another,
(according to Aboo Y oo fa ff becaufe the claim is eftablifhed in virtue
o f falvage, or recovery, and the treafure has been recovered by the
finder.— Mohammed and Haneefa maintain, on the contrary, that the
treafure is the property of him upon whom the Imdmh&d beftowed the
lands, originally, at the period of fubjugation, who is termed the
Mokhuttut-le-hoo, or firft grantee, upon the- principle that whoever
has the firft exclufive property in a foil is the true proprietor of
whatfoever may be contained in it, although he fhould not have
obtained vifible pofleflion thereof,— the fame as where a perfon catches
a fifh with a pearl in its maw, in which cafe he becomes the proprietor
of the pearl, although he has. not actually laid his hands upon
it, nor knows of its. being in the fifties belly -j-. And it is further to
* Meaning the K u lm a , or M u j f u lm a n ConfelHon o f F aith, u T h e r e i s n o G o d b u t o n e
u G o d , a n d M ohammed i s t h e p r o p h e t o f G o d .”
+ T h is is a cafe o f fome curiofity,, and affords an inffance (among a multitude o f
others) o f points o f law adduced in elucidation o f paffages to which they do not appear to
have any immediate reference.— From the above it appears, that i f a man were to catch a
fifh with a jewel in its belly, and were to fell the fifh, (not knowing what it contained)
he would have a right to recover the jewe l o f the purchafer..
be
be obferved, that if the firft grantee fhould have fold his lands, yet he
does not forfeit his right to any Kanz, or buried treafure, which may
be afterwards difcovered there, as that does not form a part of the
foil, like mines, which, as being a conftituent portion of it, upon a
transfer by fale become the property of the purchafer. And if the
firft grantee be unknown, in this cafe, according to the opinion of
the learned, the four fifths go to him who was the firft known proprietor
from the period of the eftablifhment of the Mujfulman faith,
that is to fay, him beyond whom no antecedent proprietor can be
difcovered.— And if the treafure fhould confift of coin, the impreflion
of which is fo far effaced as to render it doubtful whether it be infidel
or Mujfulman money, in this cafe (according to the Zdhir-Rawdyet)
it is to be confidered as of the former clafs: fome, however, have
obferved that, in modern times, it is held as Mujfulman coinage. • •
h? a Mujfulman go under proteftion into a foreign country, and
there find a Rikaz within the houfe o f an infidel, whether it be a
Madin or a Kanz, let him deliver the fome up to the proprietor, in
order that treachery and breach of faith may not be induced ; becaufe
whatfoever is in that country belongs of right to. the people of it:
but if he were to find the Rikaz in the open country or defert, it
belongs to him, no perfon having any exclufive right in it fo as to
make his appropriation of it an act o f treachery : and here the fifth
would not be due; as treafure, thus found, does not bear the cou-
ftruftion of plunder, the perfon_who finds it handing as a thief, and
not as a warrior.
N o fifth is due upon turquoifes, fuch as are found in mountainous
placps; becaufe a turquoife is a ftone; and the' prophet has faid,
“ Upon ftones there Jhall be no Khams.’’ '
U p o i ? quickfilver there is due a fifth ,-according to Haneefa, in his
laft opinion recorded upon this fubjedb: contrary to the opinion of
G z . Aboo
O f mines or
buried treafure
found in
a foreign
country.
Precious
ftones not
fubjeft to
impoft.
Quickfilver
fubjett to
impolt o f a
fifth :----