reft goes to
his heirs,
who iriaft
have been
qualified to
inherit at the
time o f his
1apoflacy.
property of both defcriptions goes to his heirs who are M u ffu lm a n s.
S h a fe 'i, on the other hand, holds that they are both public property,
becaufe he died in a Hate of infidelity, and a M u ffu lm a n cannot inherit
of an infidel; and as he is an in fid e l enem y, his property is forfeited to
the p u b lic ,— that is, to the f la t e . The argument of the two difciples
is that what the apoftate acquired during his profeffion of the faith,
and alfo, what he acquired during his apoflacy, are both equally his
property until his deceafe, for the reafon already mentioned: the
w h a le of his property, therefore, devolves to his. heirs in confequence
of his deceafe, in virtue of their right of inheritance refting upon a
time when he was not an apoftate; becaufe apoftaey occafions death,
and hence it is placed in the fame ftate as if he had acquired the whole
property during his profeffion of the faith : and as his heirs are heirs
to that property from the period of his profeffion of the faith, it foh
lows that a M u ffu lm a n inherits of a M u ffu lm a n , not' that a M u ffu lm a n
inherits of an in fid e l.— The argument of H a n e e fa -is, that the fucceffion
to inheritance, in fuch a way that a M u ffu lm a n inherits of a M u ffu
lm a n , is poffible with relpect to the property acquired, during IJ ldm ,
as that property exifted before apoftaey, which was a fpecies of civil
death: but this fucceffion to inheritance is not in fuch a way poffiblej
with refpedt. to the property acquired during apoftaey, becaufe this
property did not exift whilft the perfon in queftion profefl'ed, the faith;
and the exiftence' of the property during his profeffion. of the faith is
a condition of fucceffion to inheritance.— It is neceflary to obferve that
no perfon can inherit of an apoftate but one who was competent to
inherit at the time of his apoftaey, by being then f r e e and a M u ffu lm
a n , and who continued of this defeription till the time of the apoft
tate’s deceafe or defertion into a foreign ftate* This' is recorded from
H a n e e fa by H o o fn -B in - Z e e y a d , and proceeds upon the ground that in
inheritance regard is had to fu c c e ffio n ; and in fucceffion it is a condition
that the fucceflbr be firft certified, and then his fucceffion declared
; and it is requifite that the qualities which entitle to inheritance
exift in the fucceflbr at the time of certifying his, right to
fucceffion,
fucceffion, which are, his being a M u ffu lm a n and f r e e . It is alfo a requifite
that thefe qualities exift in him at the period of fucceffion;
infomuch that, if any of the apoftate’s relations were to become M u f-
fu lm a n s upon his apoftaey, or if a child be born to him begotten in his
apoftaey, they cannot (according to this dodtrine) inherit of him.
There is, however, a n o th e r dodtrine of H a n e e fa recorded upon this
head, which is, that any perfon inherits of the apoftate who was
entitled to inherit of him at the time of his apoftaey; and that the
continuance till the time of his deceafe of thofe qualities which entitle to
inheritance is unneceflary;— according to which dodtrine the right of
the perfon entitled to inherit of the apoftate at the time of his apof-
tacy is not annulled by his deceafe*, but h is heir fteps in as his, fub-
ftitute, becaufe apoftaey is a fpecies of death, and hence in eftablilhing
the right to inheritance the p e r io d o f a p o fla cy is regarded. This is the
fubftance of what is faid by A b o o Y o o fa f.— A th ir d dodtrine is that regard
is had to the e x ifte n c e of the heir at the time of the apoftate’s
death or defertion into the enemy’s country; and fuch is. the opinion
of M oh am m ed , who has faid in the M a b fo o t that this i? the moil approved
dodtripe, becaufe whatever occurs p q fle r io r to the e x ife n c e of a
caufe, but b e fo r e the com p le tio n thereof, ftands in the lame predicament
with that which occurs p r e v io u s to the exiftence of the caufe;— in the
fame manner as a child born of a purchafed Have previous to the feizin
of the purchafer;— that is, a ehild born of a purchafed female Have
pofterior to the purchafe, but previous to the feizin of the purchafer,
is confidered as exifting at the time of the contradt of fate, lb far as to
be a fubjedt of the contradt, and to have a part of the price fet againft
it ;— contrary to where it is born fu b fe q u e n t to leizin.— An heir, therefore,
riifcovered fu b fe q u e n t to the'apoftacy, is ih the fame predicament
with one who exifted p r e v io u s to the apoftaey, and at the time of
the apoftate’s profeffing the faith; and confequently inherits of the
apoftate,
■ * T h a t is, fuppofing him to die in the interim between the date o f the apoftaey and
the'death o f the apoftate.
T h e