كتاب القسامةThe Oath of Qasama

Yahya related to me from Malik from Abu Layla ibn Abdullah ibn

Abd ar-Rahman ibn Sahl from Sahl ibn Abi Hathma that some of the great

men of his people informed him that Abdullah ibn Sahl and Muhayyisa

went out to Khaybar because extreme poverty had overtaken them.

Muhayyisa returned and said that Abdullah ibn Sahl had been killed and

thrown in a shallow well or spring. The jews came and he said, "By

Allah! You have killed him." They said, "By Allah! We have not killed

him!" Then he made for his people and mentioned that to them. Then he,

his brother Huwayyisa, who was older than him, and Abd ar-Rahman, set

out. Muhayyisa began to speak, as he had been at Khaybar. The

Messenger of Allah, may Allah bless him and grant him peace, said to

him, "The greater first, the greater first," meaning in age. So

Huwayyisa spoke and then Muhayyisa spoke. The Messenger of Allah, may

Allah bless him and grant him peace, said, "Either they pay your

companion's blood-money or we will declare war against them." The

Messenger of Allah, may Allah bless him and grant him peace, wrote

that to them and they wrote, "By Allah, we did not kill him!" The

Messenger of Allah, may Allah bless him and grant him peace, said to

Huwayyisa, Muhayyisa, and Abd ar-Rahman, "Do you swear and claim the

blood of your companion?" They said, "No." He said, "Shall the jews

swear to you?" They said, "But they are not muslims." The Messenger of

Allah, may Allah bless him and grant him peace, gave blood-money from

his own property, and sent them one hundred camels to their house.

Sahl added, "A red camel among them kicked me."

Yahya said from Malik from Yahya ibn Said that Bushayr ibn Yasar

informed him that Abdullah ibn Sahl al-Ansari and Muhayyisa ibn Masud

went out to Khaybar, and they separated on their various businesses

and Abdullah ibn Sahl was killed. Muhayyisa, and his brother Huwayyisa

and Abd ar-Rahman ibn Sahl went to the Prophet, may Allah bless him

and grant him peace, and Abd ar-Rahman began to speak before his

brother. The Messenger of Allah, may Allah bless him and grant him

peace, said, "The older first, the older first.

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, "The way of doing things in our

community about which there is no dispute is that women do not swear

in the swearing for the intentional act. If the murdered man only has

female relatives, the women have no right to swear for blood and no

pardon in murder."

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."

Yahya said that Malik said, "The way of doing things in our

community about Yahya said that Malik said, "The procedure in swearing

in manslaughter is that those who claim blood swear and it becomes due

by their swearing. They swear fifty oaths, and there is blood-money

for them according to the division of their inheritances. If it is not

possible to divide up the oaths which they swear between them evenly,

one looks to the one who has most of those oaths against him, and that

oath is obliged against him."

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."

Yahya said that Malik said, "When the relatives of the deceased

accept the blood-money then it is inherited according to the Book of

Allah. Daughters of the dead man inherit and so do sisters, and

whichever women would inherit from him ordinarily.

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."

Yahya said that Malik said, "What is done in our community about

slaves is that when a slave is struck intentionally or accidentally

and the master brings a witness, he swears with his witness one oath

and then he has the value of the slave. There is no swearing for

revenge in slaves, accidentally or intentionally, and I have not heard

any of the people of knowledge say that there was."

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.''