flood (according to the expofition of Malik and Shafei) any figns of
murder being found upon a particular perfon, fuch as a bloody fcymiter,
for inftance,— or, apparent circumftances teftifying for the plaintiffs,
fuch as a notorious enmity having fubfifted between the inhabitants
[or any individuals of them] and the deceafed,— or, one juft perfon
(or a number of uncertain character) bearing teftimony that “ the
“ people of fuch a place have flain this perfon.”— If, therefore,
there be neither any tokens of murder, nor any apparent circumftances
teftifying to it, the opinion of Malik accords with that of our
doctors,— with this difference only, that where the inhabitants of the
place do not amount to fifty in number, according to Malik the oaths,
are not repeatedly adminiftered fo as to make them amount to fifty,
but thofe given are rejedted whereas, according to our doctors, it is
lawful to repeat the oaths until the whole fifty ,be compl e t e and
again, according to Malik, if the people of the place make oath, as
required, they are not fubjecl to a fine,— wherCas, according to our
dodtors, they arc fubjecl. One argument adduced by Shafei, in fup-
port of his opinion, that “ if there beany flain upon the place, the
“ oaths muft firft be adminiftered to the heir of the flain,” is a tradition
of the prophet ;— for it is related, that upon the body, of a
murdered Mujfulman being found in the well of Kheebir * , and [the
relations of the deceafed] carrying the matter before the prophet, he
diredted that fifty of the people of the well fhould be fworn, and the
plaintiffs objedting to this becaufe of thofe being infidels, he faid
“ Fifty o f ye muß Jwear that thofe people habe murdered him,"— to
which they replied, “ How Jhall we jwear to that which is unknown
“ to u s? "— Another argument is, that an oath is required,, firft,
from the perfon in whofe behalf apparent circumftances bear tefti-
* Kheebir (alfo pronounced Kbaiabar) is a city o f A rabia, fituated in the province of
N a jd , about tw o hundred and fifty miles n o rth -eaft o f M edina, inhabited (as appears
from the co n tex t) chiefly by J ew s. I t is probable th at Kaleebal Kheebir (the w ell o f Kheeb
ir ) is the proper nam e o f fome place in the neighbourhood.
mony,
,
mony, (whence it is that the oath is firft tendered to the poffelfor*;)
| and therefore, where apparent circumftances teftify for the plaintiffs,
they are firft: fworn. According to Shafei, moreover, it is lawful to
adminifter an oath to the plaintiff, as holds in cafes where the defendant
refufes to fwear. As, however, the teftimony o f apparent
1 circumftances merely is attended with fome degree of doubt, and reta-
\ liation is remitted by ttfe exiftence of a doubt, but not property, a
fine is therefore due from the defendants. T h e argument of our
doftors is, that the prophet has faid, “ It'is the part o f the plaintiff
“ to produce evidence, and o f the defendant to fw ear." It is, moreover,
related by Ibn Moofeyib, that a dead body having been found
i among the Jews, the prophet began by fwearing them, and then decreed
them to pay the fine,— which, affords an argument that the oath
is incumbent on the perfon liable to the fine. With refpect to the
tradition quoted by Shafei, concerning the people of the well of
Kheebir, the faying of the prophet, in that inftance, is explained in
an interrogatory fenfe, as i f he had faid to the plaintiffs “ W illfifty o f
“ you fw ea r?"— This tradition is alfo related with fome variation ;
for feveral authorities ftate it that the prophet firft afked the plaintiffs
“ if they could produce evidence to which they replied, “ i f
“ there had been any witneffes the murder would not have happened
— when the prophet faid to them, “ L et the Jews fwear to this
j “ effebl,— that they did not murder the man, nor do they know the mur-
“ derer-,"— and therefore the one account runs counter to the other.
In reply, moreover, to what Malik has advanced, it is obferved that
i fwearing is proof fufficient to repel but not to eftablifh a claim,— info-
much that a perfon does not, by mere fwearing, obtain s. title even
to property, although that be (comparatively) infignificant, and con-
| fequently cannot obtain a title to life [by retaliation] a fortiori. It is
to be obferved that the heirs have it in their, option to appoint any
A lluding to difputes concerning property.
fifty