Beginning with the People Seeking Blood Revenge in the Oath

1 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 notable 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 he had been at Khaybar. The Messenger of Allah, may Allah bless him and grant him peace, said to him, " The elder first, the elder first.' 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 back, " 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."

[in Bukhari and Muslim]

2 Yahya said from Malik from Yahya ibn Sa'id that Buhayr ibn Yasar informed him that 'Abdullah ibn Sahl al-Ansari and Muhayyisa ibn Mas'ud went out to Khaybar, and they separated on their various businesses and 'Abdullah ibn Sahl was killed. Muhayyisa, 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 elder first, the elder first." Therefore Huwayyisa and 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 fity oaths? " They said, " Messenger of Allah, how can we accept the oaths of a people who are unbelievers? "

Yahya ibn Sa'id 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."

[in Bukhari and Muslim]

Malik said, " The generally agreed on way of doing things in our community and that which I heard from those I am content with, concerning the oath of qasama, and that 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 when 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 necessary in these two situations."

Malik said, " That is the sunna about which there is no dispute with us and which is what the people still do. The people who claim blood begin the swearing, 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 the Banu Harith in the case of the killing of their kinsman who was 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 them 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 who is not permitted to pardon draws back. If one of the blood-relatives who is permitted to pardon draws back, even if he is only one, more oaths cannot 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 oaths 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. If there had been only swearing in cases where there was a clear proof and if one acted in it as one acts about one's rights (i.e. requiring witnesses), the right of retribution would have been lost and people would have been quick to take advantage of it when they learned of the decision about 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 talked 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."

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