treasury, according to ABU HANIFAH (may GOD be merciful to him!) but, according to the two lawyers (ABU YUSUF and MUHAMMED) both the acquifitions go to his believing heirs; and, according to ALSHAFII (may GOD be merciful to him!) both the acquifitions are placed in the publick treasury; and what he gained after his arrival in the hostile country, that is confifcated by the general confent: and all the property of a female apoftate goes to her heirs, who are believers, without diversity of opinion among our mafters, to whom God be merciful! but an apostate shall not inherit from any one, neither from a believer nor from an apostate like himself, and so a female apoftate shall not inherit from any one; except when the people of a whole district become apoftates altogether, for then they inherit reciprocally.

On a Captive.

THE rule concerning a captive is like the rule of other believers in regard to inheritance, as long as he has not departed from the faith; but, if he has departed from the faith, then the rule concerning him is the rule concerning an apoftate; but, if his apoftafy be not known, nor his life nor his death, then the rule concerning him is the rule concerning a loft person.

On Perfons drowned, or burned, or overwhelmed in Ruins.

WHEN a company of perfons die, and it is not known which of them died first, they are confidered, as if they had died at the fame moment;

VOL. III.

4 B

and

and the estate of each of them goes to his heirs, who are living; and fome of the deceased shall not inherit from others: this is the approved opinion. But ÂLÍ and IBNU MASÛÚD fay, according to one of the

traditions from them, that some of them shall inherit from others, except in what each of them has inherited from the companion of his fate.

A COM

A

COMMENTARY

ON

THE SIRAJIYYAH.

IN

N our administration of justice to Mohammedans according to their own laws, it will be of no ufe to inquire, what their legislator meant by declaring, that the law of inheritances conftituted one half of juridical knowledge*: if he intended any thing more than a strong affertion of its importance, he probably had in contemplation the two general modes of acquiring property, contracts and fucceffion, or the agreement of parties and the operation of law; and this explanation of the phrase, which had occurred to me on my first perufal of it, is also suggested by Sayyad SHARÍF, together with a more fanciful interpretation, which Maulavi KASIM has adopted, that, life and death being incident to our probationary state in this world, and the law of fucceffion manifeftly relating to the dead, it is properly opposed to all other laws, which prescribe the duties and ascertain the rights of the living; but we merely take notice of the fentence, that no part of the Sirájiyyah may be unexplained, and proceed to the four acts, which, on the decease of a Mohammedan, are to be fucceffively performed by the magistrate, or under his authority.

* Page 517.

I. A regard to publick decency and convenience, as well as to publick religion and health, feems in all nations to require, that the bodies of deceased perfons be removed out of fight, with all due fpeed and folemnity, at a moderate expense to be defrayed, even before the payment of their juft debts, out of the property left by them, on which no legal claim, from hypothecation or otherwife, had previously attached: but the Mufelman lawyers, who admit, that the funeral charges must in the first place be defrayed, affign a very whimsical reason for such a priority; because, they fay, the winding-fheet and other clothes of the dead are analogous to fuitable apparel worn by the living, and confequently fhould not be liable to the claims of a creditor. The legal expenses of burying a Mohammedan are very moderate, both in the number and value of the clothes, in which the deceased is to be wrapped: as more than three pieces of cloth for a man, or than five pieces for a woman, would be held a prodigal fuperfluity, and less than those, a niggardly deficiency, of expense, so, if the funeral clothes of AMRU or HINDA were dearer than the vesture ufually worn by them, when alive, it would be a culpable excess; and if cheaper, a blameable defect; but, if in fact they had been used to wear one fort of apparel on folemn festivals, another in vifiting their friends, and a third, in their own houses, the value of their visiting dress must regulate that of their burial, and either extreme would be too prodigal or too parfimonious. Should their debts, indeed, cover the whole of their property, the legal expense of the funeral must be reduced to the sufficient expense, as it is called; that is, to two pieces of cloth for AMRU and to three for HINDA: the names, dimenfions, and ufes of all the cloths ufed in funerals, both for men and for women, are enumerated in Perfian by Máulaví KásIM; but it would be useless to mention them; and it seems only neceffary to add on this article, that, if deceased perfons leave no property whatever, or none without a special lien on it, the funeral expenses must be paid by such of their relations, as would have been compellable by law to maintain them, when

living;

living; and, if there be no fuch relations, by the publick treasury, in which there is always an ample fund arifing from forfeitures and efcheats.

II. After the burial, all the just debts of the deceased must be paid out of his remaining affets, as far as they extend; and, if there be many creditors, they must be satisfied in equal proportion, except that a debt of health, to use the Arabian phrase, must be discharged before a debt of fickness; that is, a debt contracted or acknowledged, while the party was of found understanding and body, is preferred, when legally proved, to one acknowledged in ficknefs, but of which no other evidence. is produced. A religious vow, or promife of a charitable donation, as an atonement for fin, conftitutes a debt in confcience only; and the fum thus promised must be paid out of a third part of the affets, after the legal creditors have been fatisfied, provided that it was bequeathed by will; but, if no will was made, the temporal estate shall not be charged with a mere debt of religion.

III. The legacies of a Mufelman, to the prejudice of his heirs, must not exceed a third part of the property left by him, and remaining after the discharge of his debts: over a third of such residue he has absolute power; and his legatee shall receive it immediately, whether a specifick thing or certain fum of money, or only a fractional part of his eftate, was bequeathed. This is the opinion of SHARIF; though a distinction, which the text by no means implies, has been taken between a determinate and an indeterminate legacy.

IV. We come now to the diftribution of his eftate, remaining after the payment of debts and legacies, among his heirs (for fo we may call them, although real and personal property are undistinguished in the laws of the Arabs) according to certain rules derived from three fources,

the