44. The Oath of Qasama

Yahya related to me from Malik from Abu Layla ibn Abdullah ibnAbd ar-Rahman ibn Sahl from Sahl ibn Abi Hathma that some of the greatmen of his people informed him that Abdullah ibn Sahl and Muhayyisawent out to Khaybar because extreme poverty had overtaken them.Muhayyisa returned and said that Abdullah ibn Sahl had been killed andthrown in a shallow well or spring. The jews came and he said, "ByAllah! You have killed him." They said, "By Allah! We have not killedhim!" 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, setout. Muhayyisa began to speak, as he had been at Khaybar. TheMessenger of Allah, may Allah bless him and grant him peace, said tohim, "The greater first, the greater first," meaning in age. SoHuwayyisa spoke and then Muhayyisa spoke. The Messenger of Allah, mayAllah bless him and grant him peace, said, "Either they pay yourcompanion's blood-money or we will declare war against them." TheMessenger of Allah, may Allah bless him and grant him peace, wrotethat to them and they wrote, "By Allah, we did not kill him!" TheMessenger of Allah, may Allah bless him and grant him peace, said toHuwayyisa, Muhayyisa, and Abd ar-Rahman, "Do you swear and claim theblood of your companion?" They said, "No." He said, "Shall the jewsswear to you?" They said, "But they are not muslims." The Messenger ofAllah, may Allah bless him and grant him peace, gave blood-money fromhis 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 Yasarinformed him that Abdullah ibn Sahl al-Ansari and Muhayyisa ibn Masudwent out to Khaybar, and they separated on their various businessesand Abdullah ibn Sahl was killed. Muhayyisa, and his brother Huwayyisaand Abd ar-Rahman ibn Sahl went to the Prophet, may Allah bless himand grant him peace, and Abd ar-Rahman began to speak before hisbrother. The Messenger of Allah, may Allah bless him and grant himpeace, said, "The older first, the older first. ThereforeHuwayyisa and then Muhayyisa spoke and mentioned the affair ofAbdullah ibn Sahl. The Messenger of Allah, may Allah bless him andgrant him peace, said to them, "Do you swear with fifty oaths andclaim 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 notpresent." The Messenger of Allah, may Allah bless him and grant himpeace, said, "Will you acquit the jews for fifty oaths?' They said,"Messenger of Allah, how can we accept the oaths of a people who arekafirun?" Yahya ibn Said said, "Bushayr ibn Yasar claimedthat the Messenger of Allah, may Allah bless him and grant him peace,paid the blood-money from his own property." Malik said, "Thegenerally agreed on way of doing things in our community and thatwhich I heard from whoever I am content with, concerning the oath ofqasama, and upon which the past and present imams agree, is that thosewho claim revenge begin with the oaths and swear. The oath for revengeis only obligatory in two situations. Either the slain person says,'My blood is against so-and-so,' or the relatives entitled to theblood bring a partial proof of it that is not irrefutable against theone who is the object of the blood-claim. This obliges taking an oathon the part of those who claim the blood against those who are theobject of the blood-claim. With us, swearing is only obliged in thesetwo situations." Malik said, "That is the sunna in whichthere is no dispute with us and which is still the behaviour of thepeople. The people who claim blood begin the swearings, whether it isan intentional killing or an accident." Malik said, "TheMessenger of Allah, may Allah bless him and grant him peace, beganwith Banu Harith in the case of the killing of their kinsman murderedat Khaybar." Malik said, "If those who make the claim swear,they deserve the blood of their kinsman and whoever they swear againstis slain. Only one man can be killed in the qasama. Two cannot bekilled in it. Fifty men from the blood-relatives must swear fiftyoaths. If their number is less or some of them draw back, they canrepeat their oaths, unless one of the relatives of the murdered manwho deserves blood and who is permitted to pardon it, draws back. Ifone of these draws back, there is no way to revenge." Yahyasaid that Malik said, "The oaths can be made by those of them whoremain if one of them draws back who is not permitted to pardon. Ifone of the blood-relatives draws back who is permitted to pardon, evenif 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 oneagainst whom the claim is made. So fifty of the men of his peopleswear fifty oaths. If there are not fifty men, more oaths can be madeby those of them who already swore. If there is only the defendant, heswears fifty oaths and is acquitted." Yahya said that Maliksaid, "One distinguishes between swearing for blood and oaths forone's rights. When a man has a money-claim against another man, heseeks to verify his due. When a man wants to kill another man, he doesnot kill him in the midst of people. He keeps to a place away frompeople. Had there only been swearing in cases where there is a clearproof and had one acted in it as one acts about one's rights (i.e.needing witnesses), the right of blood retribution would have beenlost and people would have been swift to take advantage of it whenthey learned of the decision on it. However, the relatives of themurdered man were allowed to initiate swearing so that people mightrestrain themselves from blood and the murderer might beware lest hewas put into a situation like that (i.e. qasama) by the statement ofthe murdered man.' " Yahya said, "Malik said about a peopleof whom a certain number are suspected of murder and the relatives ofthe murdered man ask them to take oaths and they are numerous, so theyask that each man swears fifty oaths on his own behalf. The oaths arenot divided out between them according to their number and they arenot acquitted unless each man among them swears fifty oaths on his ownbehalf." Malik said, "This is the best I have heard about thematter." He said, "Swearing goes to the paternal relatives ofthe slain. They are the blood-relatives who swear against the killerand by whose swearing he is killed." Yahya said that Malik said, "The way of doing things in ourcommunity about which there is no dispute is that women do not swearin the swearing for the intentional act. If the murdered man only hasfemale relatives, the women have no right to swear for blood and nopardon in murder." Yahya said that Malik said about a man whois murdered, "If the paternal relatives of the murdered man or hismawali say, 'We swear and we demand our companion's blood,' that istheir right." Malik said, "If the women want to pardon him,they cannot do that. The paternal relatives and mawali are entitled todo that more than them because they are the ones who demand blood andswear for it." Malik said, "If the paternal relatives ormawali 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 retaliationis more entitled than the one who leaves it among the women andpaternal relatives when the murder is established and killingobliged." Malik said, "At least two claimants must swear inmurder. 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 ourcommunity." Malik said, "When people beat a man and he diesin their hands, they are all slain for him. If he dies after theirbeating, there is swearing. If there is swearing, it is only againstone man and only he is slain. We have never known the swearing to beagainst more than one man." Malik spoke about a slave who hadhis hand or foot broken and then the break mended . He said, "The onewho injured him is not obliged to pay anything. If that break causeshim loss or scar, the one who injured him must pay according to whathe diminished of the value of the slave." Malik said, "Whatis done in our community about retaliation between slaves is that itis like retaliation between freemen. The life of the slave-girl forthe life of the slave, and her injury for his injury. When a slaveintentionally kills a slave, the master of the murdered slave has achoice. If he wishes, he kills him, and if he wishes, he takes theblood-money. If he takes the blood-money, he takes the value of hisslave. If the owner of the slave who killed wishes to give the valueof the murdered slave, he does it. If he wishes, he surrenders hisslave. If he surrenders him, he is not obliged to do anything otherthan that. When the owner of the murdered slave takes the slave whomurdered and is satisifed with him, he must not kill him. Allretaliations between slaves for cutting off of the hand and foot andsuch things are dealt with in the same way as in the murder." Malik said about a muslim slave who injures a jew or christian, "Ifthe master of the slave wishes to pay blood-money for him according tothe injury, he does it. Or else he surrenders him and he is sold, andthe jew or christian is given the blood-money of the injury or all theprice of the slave if the blood-money is greater than his price. Thejew or christian is not given a muslim slave." Yahya said that Malik said, "The way of doing things in ourcommunity about Yahya said that Malik said, "The procedure in swearingin manslaughter is that those who claim blood swear and it becomes dueby their swearing. They swear fifty oaths, and there is blood-moneyfor them according to the division of their inheritances. If it is notpossible 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 thatoath is obliged against him." Malik said, "If the slain manonly has female heirs, they swear and take the blood-money. If he onlyhas 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 deceasedaccept the blood-money then it is inherited according to the Book ofAllah. Daughters of the dead man inherit and so do sisters, andwhichever women would inherit from him ordinarily. If thewomen do not take all his inheritance, then what remains goes to theagnatic relations who most deserve to inherit from him in conjunctionwith the women." Malik said, "When one of the heirs of a mankilled by mistake attempts to take his due from the blood-money whilehis companions are absent, he may not do that, and he has no right toany of the blood-money, however large or small, unless the qasama hasbeen completed by him. If he swears fifty oaths then he has the rightto his portion of the blood-money. That is because the blood-money isnot established as due without there being fifty oaths, and the blood-money is not established as due unless the responsibility for theblood is established. If any one of the heirs comes after that heswears a number of the oaths commensurate with his fraction of theinheritance and takes his right until all the heirs exact theircomplete right. If a maternal uncle comes he has one sixth and mustswear one sixth of the fifty oaths. So whoever swears may take his duefrom the blood-money and whoever abstains annuls his right. If one ofthe heirs is absent or is a child who has not reached puberty, thosewho are present swear fifty oaths and if the one who was absent comesafter that or the child reaches puberty, they swear. and they swearaccording to their due of the blood-money and according to theirshares 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 aboutslaves is that when a slave is struck intentionally or accidentallyand the master brings a witness, he swears with his witness one oathand then he has the value of the slave. There is no swearing forrevenge in slaves, accidentally or intentionally, and I have not heardany of the people of knowledge say that there was." Maliksaid, "If a slave is killed intentionally or accidentally, the masterof the slave who is slain has no swearing or oath. The master cannotdemand his right except with a fair proof or a witness if he swearswith one witness." Yahya said that Malik said, "This is thebest of what I have heard on the matter.''