Sahl added, "A red camel among them kicked me."
Therefore
Huwayyisa and then Muhayyisa spoke and mentioned the affair of
Abdullah ibn Sahl. The Messenger of Allah, may Allah bless him and
grant him peace, said to them, "Do you swear with fifty oaths and
claim the blood-money of your companion or the life of the murderer?"
They said, "Messenger of Allah, we did not see it and we were not
present." The Messenger of Allah, may Allah bless him and grant him
peace, said, "Will you acquit the jews for fifty oaths?' They said,
"Messenger of Allah, how can we accept the oaths of a people who are
kafirun?"
Yahya ibn Said said, "Bushayr ibn Yasar claimed
that the Messenger of Allah, may Allah bless him and grant him peace,
paid the blood-money from his own property."
Malik said, "The
generally agreed on way of doing things in our community and that
which I heard from whoever I am content with, concerning the oath of
qasama, and upon which the past and present imams agree, is that those
who claim revenge begin with the oaths and swear. The oath for revenge
is only obligatory in two situations. Either the slain person says,
'My blood is against so-and-so,' or the relatives entitled to the
blood bring a partial proof of it that is not irrefutable against the
one who is the object of the blood-claim. This obliges taking an oath
on the part of those who claim the blood against those who are the
object of the blood-claim. With us, swearing is only obliged in these
two situations."
Malik said, "That is the sunna in which
there is no dispute with us and which is still the behaviour of the
people. The people who claim blood begin the swearings, whether it is
an intentional killing or an accident."
Malik said, "The
Messenger of Allah, may Allah bless him and grant him peace, began
with Banu Harith in the case of the killing of their kinsman murdered
at Khaybar."
Malik said, "If those who make the claim swear,
they deserve the blood of their kinsman and whoever they swear against
is slain. Only one man can be killed in the qasama. Two cannot be
killed in it. Fifty men from the blood-relatives must swear fifty
oaths. If their number is less or some of them draw back, they can
repeat their oaths, unless one of the relatives of the murdered man
who deserves blood and who is permitted to pardon it, draws back. If
one of these draws back, there is no way to revenge."
Yahya
said that Malik said, "The oaths can be made by those of them who
remain if one of them draws back who is not permitted to pardon. If
one of the blood-relatives draws back who is permitted to pardon, even
if he is only one, more oaths can not be made after that by the blood-
relatives. If that occurs, the oaths can be on behalf of the one
against whom the claim is made. So fifty of the men of his people
swear fifty oaths. If there are not fifty men, more oaths can be made
by those of them who already swore. If there is only the defendant, he
swears fifty oaths and is acquitted."
Yahya said that Malik
said, "One distinguishes between swearing for blood and oaths for
one's rights. When a man has a money-claim against another man, he
seeks to verify his due. When a man wants to kill another man, he does
not kill him in the midst of people. He keeps to a place away from
people. Had there only been swearing in cases where there is a clear
proof and had one acted in it as one acts about one's rights (i.e.
needing witnesses), the right of blood retribution would have been
lost and people would have been swift to take advantage of it when
they learned of the decision on it. However, the relatives of the
murdered man were allowed to initiate swearing so that people might
restrain themselves from blood and the murderer might beware lest he
was put into a situation like that (i.e. qasama) by the statement of
the murdered man.' "
Yahya said, "Malik said about a people
of whom a certain number are suspected of murder and the relatives of
the murdered man ask them to take oaths and they are numerous, so they
ask that each man swears fifty oaths on his own behalf. The oaths are
not divided out between them according to their number and they are
not acquitted unless each man among them swears fifty oaths on his own
behalf."
Malik said, "This is the best I have heard about the
matter."
He said, "Swearing goes to the paternal relatives of
the slain. They are the blood-relatives who swear against the killer
and by whose swearing he is killed."
Yahya said that Malik said about a man who
is murdered, "If the paternal relatives of the murdered man or his
mawali say, 'We swear and we demand our companion's blood,' that is
their right."
Malik said, "If the women want to pardon him,
they cannot do that. The paternal relatives and mawali are entitled to
do that more than them because they are the ones who demand blood and
swear for it."
Malik said, "If the paternal relatives or
mawali pardon after they demand blood and the women refuse and say,
'We will not abandon our right against the murderer of our companion,'
the women are more entitled to that because whoever takes retaliation
is more entitled than the one who leaves it among the women and
paternal relatives when the murder is established and killing
obliged."
Malik said, "At least two claimants must swear in
murder. The oaths are repeated by them until they swear fifty oaths,
then they have the right to blood. That is how things are done in our
community."
Malik said, "When people beat a man and he dies
in their hands, they are all slain for him. If he dies after their
beating, there is swearing. If there is swearing, it is only against
one man and only he is slain. We have never known the swearing to be
against more than one man."
Malik spoke about a slave who had
his hand or foot broken and then the break mended . He said, "The one
who injured him is not obliged to pay anything. If that break causes
him loss or scar, the one who injured him must pay according to what
he diminished of the value of the slave."
Malik said, "What
is done in our community about retaliation between slaves is that it
is like retaliation between freemen. The life of the slave-girl for
the life of the slave, and her injury for his injury. When a slave
intentionally kills a slave, the master of the murdered slave has a
choice. If he wishes, he kills him, and if he wishes, he takes the
blood-money. If he takes the blood-money, he takes the value of his
slave. If the owner of the slave who killed wishes to give the value
of the murdered slave, he does it. If he wishes, he surrenders his
slave. If he surrenders him, he is not obliged to do anything other
than that. When the owner of the murdered slave takes the slave who
murdered and is satisifed with him, he must not kill him. All
retaliations between slaves for cutting off of the hand and foot and
such things are dealt with in the same way as in the murder."
Malik said about a muslim slave who injures a jew or christian, "If
the master of the slave wishes to pay blood-money for him according to
the injury, he does it. Or else he surrenders him and he is sold, and
the jew or christian is given the blood-money of the injury or all the
price of the slave if the blood-money is greater than his price. The
jew or christian is not given a muslim slave."
Malik said, "If the slain man
only has female heirs, they swear and take the blood-money. If he only
has one male heir, he swears fifty oaths and takes the blood-money.
That is only in the accidental killing, not in the intentional one."
If the
women do not take all his inheritance, then what remains goes to the
agnatic relations who most deserve to inherit from him in conjunction
with the women."
Malik said, "When one of the heirs of a man
killed by mistake attempts to take his due from the blood-money while
his companions are absent, he may not do that, and he has no right to
any of the blood-money, however large or small, unless the qasama has
been completed by him. If he swears fifty oaths then he has the right
to his portion of the blood-money. That is because the blood-money is
not established as due without there being fifty oaths, and the blood-
money is not established as due unless the responsibility for the
blood is established. If any one of the heirs comes after that he
swears a number of the oaths commensurate with his fraction of the
inheritance and takes his right until all the heirs exact their
complete right. If a maternal uncle comes he has one sixth and must
swear one sixth of the fifty oaths. So whoever swears may take his due
from the blood-money and whoever abstains annuls his right. If one of
the heirs is absent or is a child who has not reached puberty, those
who are present swear fifty oaths and if the one who was absent comes
after that or the child reaches puberty, they swear. and they swear
according to their due of the blood-money and according to their
shares of inheritance from it."
Yahya said that Malik said,
"This is the best I have heard on the matter."
Malik
said, "If a slave is killed intentionally or accidentally, the master
of the slave who is slain has no swearing or oath. The master cannot
demand his right except with a fair proof or a witness if he swears
with one witness."
Yahya said that Malik said, "This is the
best of what I have heard on the matter.''