fifty individuals*, becaufe the oath required is their right, and it is
mod likely that they will fix upon fuch as are: fufpe&ed; o f the murder,
or upon perfons of known probity among the inhabitants, (thofe
being the mod cautious of fwearing falfely,) by which means the
murderer may be difcovered ; for the advantage propofed in fwearing
is the difcovery occafioned by a refufal to. fwear ; and: therefore the
upright among the inhabitants, admitting that they th-emfelves, were
not concerned in the murder, dill will not fail to difcover the murderer
if they know him. If, alio, the heirs fix upon a blind perfon
among the inhabitants, or perfons who have differed punilhment for
dander,, to fwear, it is approved, becaufe the depofitions of fuch are
inadmiflible only where they appear as witnej[es\ bait here they are
brought-forward merely to fwear, not 3s.witneJJ'es.
Upon the people of the didridt fwearing* as. above, a decree is
paffed awarding them to pay the fine for the fiain; and an oath is ad-
miniftered to the heirs. Shafei maintains that the fine is not impofed
in this indance ; becaufe of a determination of the prophet, who exempted
certain Jews from a fine upon their taking the oa thand alfo,
becaufe the oath.has been ordained by the law for the purpofe of exculpating
the defendant, and not with a. view to fubjedt him to any
punilhment. T h e argument of our dodtors is, that the prophet ufed
to impofe the fine as well as the oath, as appears from the traditions
of Abdoola Ibn Saheel, with which Shafei was:not acquainted,— Omar
alfo did the fame. KiJ/amit, moreover, was not indituted for the
purpofe of edablilhing a fine where the parties refufie to fwear, but
for the purpofe merely of difeovering whether it be not a cafe: of, retaliation,
by compelling the murderer to an acknowledgment, from his
fear of taking a falfe oath. Upon the people of the didridt, therefore,
taking the oath, retaliation being put out of the quedion, the fine is
* O f the diftnet, for th.e purpofe o f being fworn.
confequently
confequently due from them, either becaufe o f ’their having been
guilty o f a wegledt, (as in cafes of homicide b y miladvent-ure,)— or,
becaufe it is evident that they mud have flain the peffon, his body
being found among them;— not becaufe o f their refufmg to fwear.
If , among the people o f the place feledted to fwear, any one re-
fufe to take the oaths, he is to be imprifoned until he ‘take it * ; becaufe
the oath, in Kiff&tnit, is effehtial and indifpenfable, blood being
a matter of weight, and not of flight confideration. It is oth’erwife
where a perfon refufes to fwear in a matter of property I for the oath,
in matters of property, is a fubftifut'e in lieu o f the ‘article claimed by
the plaintiff-)-, and accordingly, the fwearing is remitted by the fur-
render of the article claimed ; but in the cafe of Rijfdtnit the fwearing
is not remitted by a payment of the fine. It is to be obferved that
what is here advanced applies, not only to where the heir o f the fiain
lays his claim againfi the whole o f the inhabitants o f the difiridt, but
alfo, to where he advances it againfi any number of them not fpeci-
fically named; for as thofe cannot be diftinguithed from the reft, the
cafe is therefore as if the claim comprehended the whole. A claim
laid on the ground of wilful murder is alfo the fame as on homicide
by mifadventure. With refpedl to a cafe of claim advanced againfi
fpecific individuals, it Ihall (G od willing) be treated of in its proper
place.
I f any one o f
them refufe
to fwear, he
muft be imprifoned.
I f the inhabitants of the place or diftriift do not amount to fifty in I f the whole
number, the oath muft be adminiftered to them repeatedly, fo as to ™e” b"e f 0
make up the complete number o f fifty depofitions ;— becaufe it is re- ^)r, W °ath
corded of Omar that (on a certain occafion) when he ordered a Kijfd- metered*'
* T h a t is, K until he either take if, or acknowledge hijn feIf guilty o f the murder
■ t T h is is a law phrafe.— T h e m eaning o f it is th at, if the claim ant can n o t produce
evidence, the oath o f the defendant m uft be confidered as all th a t can be expedied o f him ,
and acquits h im o f every dem and.
6 m l,