Chapter 9

(M257) Documentary evidence might be demanded. The judges might decide to take the evidence of their own senses and go to see an estate or a house in dispute.(121) Or they might determine that it was a case for the accused to purge himself, which he did by oath.(122)

(M258) Having thus informed themselves of the rights of the case the judges proceeded to pronounce a decision, “they caused them to receive judgment.” This phrase nearly always occurs in the legal decisions. The decision might be called “the judgment of the particular judge,” for example, _dîn Išarlim_, “Israel’s judgment.”(123) The sentence is sometimes stated in the words of the judges themselves, introduced by _ikbu_, “they said.”(124) Thus we read “the tablet which A granted to B is good, they said.”(125)

(M259) If one party was in the wrong, the judges “laid the wrong on him,”(126) or “put him in the wrong.”(127) When the suit was to recover a debt, or find compensation, the judges might name a sum which they paid over to the proper person.(128) This was damages, not a fine.

(M260) A ceremony which often took place on the annulment of a former agreement, or cancelling of a deed was the breaking of the tablet embodying the former contract. The same ceremony took place on repayment of a debt, or on dissolution of a partnership, apparently without recourse to judges. This was ordered by the Code in case of purchases of property which it was illegal to sell or buy, such as the benefice of a reeve or runner.(129) So when an adopted child had failed to carry out the bond to nourish and care for the adoptive parent, the deed of adoption was formally broken by the judges.(130)

For later times we have little evidence. What there is was collected by Kohler-Peiser,(131) and agrees in general with the above.

(M261) 6. *The decision.*—In these ways the judges “quieted the strife,” “composed the complaint.”(132) It was the standard conception of a legal decision that it should be irrevocable. The Code enacts the deprivation and deposition of a judge for revoking his judgment.(133) The legal decisions lay down the stipulation that the losing party shall not “turn back,” shall not “complain.” These phrases nearly always occur, as they do also in contracts. To insure compliance with the decision the judges again exacted an oath. Whether both parties swore, or only the losers, is not clear. The statement usually is “they swore,” without mention of the persons who did so.

(M262) The decision, being complete, was embodied in a document drawn up by the scribe, regularly witnessed, often by the judges, and sealed. Thus it was that the judges granted him an irrevocable tablet.(134) These irrevocable tablets, practically imperishable also, have now come after thousands of years, to tell their tale.

(M263) 7. *Administration of the oath.*—The ceremony of swearing to the truth of evidence, or the terms of a compact, is continually mentioned. The exact form of words used in taking the oath is not certain; but in actual suits, in the law-court procedure, the judges administered an oath to both parties and witnesses. In the Code oaths were admitted for purgation of alleged crime,(135) as evidence of loss, deposit, injury;(136) and the reception of a sworn deposition is recorded.(137) References to oaths continually occur in the contracts.

(M264) The judges “gave them to the oath before Shamash and Adad,”(138) or, more briefly, “gave him to the oath of god.”(139) The name of the god by whom men swore is usually given. As might be expected, the god who figured most prominently in the Code was Shamash, the chief deity of Sippara, often associated with his consort, Aia, or Malkatu. Sometimes the oath was “by the king.”(140) Often one or more gods and the king are named together. When Babylon became supreme it was usual to swear by Marduk and the local gods as well. The significance of these oaths for historical purposes is great, both as indicating political relationships, and as often affording by the name of the king the only clew to the date of the document. Mr. King, in his edition of the Chronicle,(141) and Dr. Lindl,(142) have made skilful use of these oaths in determining chronology.

(M265) The administration of the oath took place before the censer of Shamash(143) or at the shrine, _Šašaru_, of Shamash,(144) in Sippara; or before the emblematic dragon sculptured on the doors of the Marduk temple at Babylon.(145) Other places are named which we are not yet able to identify. A kind of magical conjuration appears sometimes to have been employed,(146) which is not yet understood.

(M266) The purport of the oath was, not to give false evidence, or, in the case of contracts, not to alter the stipulated agreements. It is often followed by the words, “whoever shall alter or dispute the words of this tablet,” evidently a quotation of the words of the oath; but the consequence of so doing is not given. Either it was too well known, or too awful, for the scribe to write it down.

(M267) In Assyrian times the oath did not play such an important part. Still, it was in use occasionally. The oath is generally found in documents of the grand style, such as royal charters. Oaths also are of interest for the pantheon of Assyria.(147) A common way of expressing the same thing was to call on a god to be judge of the case, as for example, “Shamash be judge,” or “Shamash be advocate,” that is, “take up the case.” So the king’s son, or crown prince, is invoked to be the advocate. An appeal was also made to the decision of the king. The gods, “Ashur, Sin, Shamash, Bêl, and Nabû, the gods of Assyria, shall require it at his hands” is another way of putting the case. These examples illustrate the meaning of the older oaths. There do not seem to be any cases of the witnesses being put on oath.

(M268) But the oath lingered on into very late Babylonian times, when we have some very full forms. If anyone shall change or alter the agreement, “may Marduk and Zarpanit decree his destruction.”(148) In Persian times we find a curse on the same breach of faith in the terms, “whosoever shall attempt to alter this agreement, may Anu, Bêl, and Ea curse him with a bitter curse, may Nabû, the scribe of Esagila, put a period to his future.”(149) It is curious thus to note a recrudescence of old forms in these later times. Was it merely an antiquarian fashion or had the Persians earlier come under strong Babylonian influence and preserved the old forms which had died out in their native home? The Elamite contracts suggest exactly the same question. In them it seems evident that Elam, once under Babylonian influence, adopted and preserved, under native rulers, forms of which we have no trace in Babylonia, but which clearly came from that country. Assyria is another case in point. She kept forms which we know date back before the time of her independence and which had disappeared from the contemporary Babylonian documents. In the later Babylonian times we still find the parties and the witnesses in a law-court put to the oath.(150)

(M269) 8. *Penalties.*—An unsuccessful suitor was not allowed to get off merely with the loss of his suit. He had been put on his oath and been unable to justify himself, or the word that he had spoken. According to the Code, if the suit was a capital suit, this was punished with death.(151) But even if the case was less serious, it was slander to have brought a false accusation, and the penalty for slander was branding.(152) This penalty was inflicted on an unsuccessful suitor for possession of a house sold by his father.(153) Another form of penalty for unsuccessful litigation was that the suitor should not only lose his case but actually be condemned to pay the penalty which he, if successful, would have brought on the other party.(154) That this is what was really intended by the clauses is shown by the case of Belilitum, who as late as B.C. 555,(155)having brought a suit to recover a debt which she alleged was not paid, was convicted of perjury by the production of the receipt, and by the evidence of her own children, and not only lost her case, but was condemned to pay the sum for which she had sued to him from whom she sought to obtain it. This was of course a form of retaliation.

(M270) In Assyrian times the parties usually bound themselves not to litigate, nor attempt to disturb the settlement made between them, under heavy forfeits to the treasury of a god, often tenfold the value of the object in dispute, and sometimes prohibitive in amount. Such sums as two talents of silver, or two talents of gold, controvert the idea that these forfeits were looked upon as possible deposits by a claimant desiring to reopen the case. They were terrific penalties intended to deter any attempt at litigation.

(M271) The forfeit sometimes took the form of white horses, or foals (?), which were dedicated to a divinity. Very interesting is the mention of the dedication of the eldest child to a god, or goddess. This is worded as if the dedication was to be by fire. The additional mention of incense or cedarwood, as accompanying the offering, renders it probable that it was really meant that the litigant should be punished by the sacrifice of his child as a “burnt offering” to the god. But this only makes it clearer that such penalties were simply meant to be deterrent. We have no proof that such an offering ever took place. It was a memory of bygone horrors, but not less interesting as showing what had once been possible. A more natural and extremely common penalty was the payment of a tenfold value to the disturbed owner. In later times this was twelvefold. This was an example of the multiple restitution so common in the Code.

(M272) Something very like an ordeal was occasionally imposed. The very fragmentary condition of the texts which give it adds to its obscurity. But it appears to have consisted in the litigant being compelled to eat a mina weight of some magically concocted food and to drink the contents of an inscribed bowl. What the result was expected to be is not stated. One fragmentary text appears to name the ingredients of the magic potion. All that can be made out points to an ordeal, somewhat similar to that inflicted upon a suspected wife in Numbers v. 12-31.

9. *Penalties for wrong-doing.*—We are chiefly indebted to the Code for our knowledge of the penalties which the judge and his assessors might inflict.

(M273) Foremost we may place the death-penalty. This was inflicted by the Code for witchcraft, for theft, for corruption of justice, for rape, for causing death by assault, for neglect of duties by certain officials, for allowing a seditious assembly, for causing death by bad building, and for varieties of these crimes. It is curious that no mention is made of murder pure and simple. But this is only accidental. It is evidently assumed. For the Code brings several cases of murder under this penalty. Procuring the death of a husband is punished by it; even a fatal assault, as that on a pregnant woman who dies of miscarriage as the result. The need of an oath to establish lack of malice in giving a blow in a quarrel which led to death tends to show that murder was punished by death, and that it was regarded as death intentionally caused. An explicit statement was clearly not needed. We do not yet know how this sentence was carried out. Usually the Code only says “he shall be killed”; by whom, or how, is not stated. For special cases the manner is described.

(M274) Death by drowning was inflicted on a beer-seller for selling beer too cheaply; on a woman for adultery, for being a bad wife, for incest, or for desertion of her husband’s house. In every case the victim was a woman. When men were drowned they shared a woman’s fate. In two cases, adultery and incest, we read of the criminals being bound. In the latter, § 155, it seems that the man was “bound” and the woman drowned. In the former, § 129, both were “bound” and both drowned. It is hardly likely that “bound” can mean merely tied up, or imprisoned, in the case of the man who committed incest. I would suggest that in both cases it means “strangled.” The alternative would be that the confusion in § 155 is due to the scribe.

(M275) Death by fire is directly ordered for a votary who opens or enters a beer-shop, for a man and his mother in incest, and indirectly for a thief at a fire.

(M276) Impalement on a stake is ordered for a wife procuring her husband’s death.

(M277) Indirectly the death-penalty would often be the consequence of an appeal to the ordeal by water, in §§ 2, 132.

(M278) The various sorts of mutilation named are of two types: (1) retaliation for bodily disfigurement, (2) symbolical of the offence itself. Thus eye for eye, tooth for tooth, limb for limb, are pure retaliations. But the hands cut off mark the sin of the hands in striking a father, in unlawful surgery, or in branding. The eye torn out was the punishing of unlawful curiosity. The ear cut off marked the sin of the organ of hearing and obedience. The tongue was cut out for the ingratitude evidenced in speech.

(M279) Scourging is the only other form of corporal punishment. It was done with an ox-hide scourge, or thong, and sixty strokes were ordered to be publicly inflicted for a gross assault on a superior.

(M280) Banishment from the city was the penalty for incest.(156)

(M281) Restitution may, perhaps, hardly be regarded as a penalty. Thus a man who was found in possession of lost property had to restore it. In case of loss caused by neglect or ill-treatment of hired property, or of goods deposited or intrusted, or by want of care in treating diseased limbs, restitution, goods for goods, ox for ox, ass for ass, _et cetera_, was ordered.(157)

(M282) But restitution of many times the damage inflicted is a distinct penalty. The Code orders threefold for cheating a principal,(158) fivefold for loss or theft of goods by carrier,(159) sixfold for defrauding an agent,(160) tenfold for theft by a poor man, or for careless loss by shepherd or herdsman,(161) twelvefold for a false sentence by a judge,(162) thirtyfold for theft on the part of a gentleman.

(M283) The infliction of the same loss on a criminal that he caused another is seen in the cases of mutilation, eye for eye, limb for limb, tooth for tooth,(163) but also in the penalty of son for son, daughter for daughter, slave for slave;(164) and in the rule that a vexatious suitor shall pay the penalty which his suit was calculated to bring on the defendant.

(M284) This retaliation is the explanation of what seems to be vicarious punishment, where a man suffers in the person of his son, or daughter, for the loss he has caused to the son or daughter of another.(165)

(M285) Another penalty was the voidance of a claim. If a man took the law into his own hands to repay his debt, he lost all claim to recover it through the courts. When the purchase was illegal and void, as that of an officer’s benefice or of a ward’s property, the purchaser had to return his purchase and lose what he had paid for it.

(M286) In certain cases no suit was allowed to gain standing. Contributory negligence,(166) the natural death of hostage for debt,(167) the accidental goring of a man by a wild bull,(168) are excluded from litigation. Such events cancel all further claim or are expressly said to have no remedy. There is no case for prosecution.

(M287) Compensation for loss caused by crime, or neglect, is ordered on a scale fixed by the Code. Where a tenant takes a field on produce-rent his neglect to cultivate caused a loss to the landlord. He was thus bound to pay an average yield, or a crop like his neighbor’s, or that of the next field.(169) In later times, the vagueness of this rule, which might give rise to dispute, was avoided by stating in the lease the average rent to be expected. For certain classes of land, where no comparison with the next field could be instituted, a fixed rate was set down.(170) Compensation for premature ejectment was ordered.(171)

VI. Legal Decisions

(M288) By a legal decision we understand a “judgment” pronounced by some judicial authority upon a case submitted. It is not easy to say whether the Babylonians had a separate name for this sort of transaction; but it had some peculiarities by which it can be easily recognized. It usually opens with the words, _duppu ana_, “tablet on,” followed by the statement of the object in dispute. This is very often abbreviated to a simple _ana_, “on,” or _aššum = ana šum_, “concerning,” or _eli_ with the same sense.

These usages explain the curious tablet(172) where we have a long series of sections each containing names associated with other names by the word _aššum_. Thus we read:(173)

“Nishînishu, daughter of Rîsh-Sin, _aššum_ Shamash-ellatsu, son of Itti-Sin-dinim.”

(M289) It is not clear whether Shamash-ellatsu was the adversary of Nishînishu, or the subject of her suit. But we clearly have here a “trial list” of seventeen cases. Whether they were all decided in one day, month, or year, or whether they were reserved for the royal audience, we have no means of telling. It is merely a list. The object in dispute, “two _SAR_ of land,” is occasionally given; or the court is named “the temple of Shamash,” or “at the gate of Shamash.” The whole text is too fragmentary to be translated, but we may note that some lady or other is always a party to the suit. If we could find the tablets referring to the decisions intended and they should turn out to be of different years, this list might prove of value for chronology.

(M290) Legal decisions relate to all manner of subjects and consequently are difficult to arrange. Dr. Meissner adopted the excellent plan of appending them to the groups concerned with the class of property dealt with under them. Thus a legal decision concerned with the sale of a house would be grouped with the house sales. But this does not suit all cases, and both in formula and subject the legal decisions are really distinct. Most legal decisions add nothing to our knowledge of the law, merely recording that “A sued B and lost the day and is now bound over not to renew the litigation.” A large number go only a little further, thus:(174)

(M291)

Ribatum, daughter of Salâ, was sued by the sons of Erib-Sin, Shumma-ilu and Mâr-erṣitim, concerning what Salâ, her father, and Mullubtim, her mother, had left her. They took judges who restored to her one-half _GAN_ of land, her property. Shumma-ilu and Mâr-erṣitim, sons of Erib-Sin, shall not renounce this agreement nor dispute it. They swore by Shamash, Malkat, Marduk, and Samsu-iluna the king. Four judges appear as witnesses. Dated the 10th of Elul, in the second year of Samsu-iluna.

Here it is not stated what was the ground on which the parties disagreed, nor that they laid claim to more than one-half _GAN_ of land. They lost the case. That is all we know in many other cases. Often we do not know the object in dispute. Other cases are quite full and often very instructive. Thus:(175)

(M292)

About the maid Adkallim, whom Aiatîa had left to her daughter Ḥulaltum. Ḥulaltum had taken care of her mother Aiatîa; while Sin-nâṣir, the husband of Aiatîa, who was in Buzu for twenty years, had left Aiatîa to her fate, loved her not. Now after Aiatîa was dead, Sin-nâṣir laid claim on whatever Aiatîa had, and on Ḥulaltum for the maid Adkallim. Isharlim, the _rabiânu_ of Sippar, with the Kar-Sippar, assigned sentence; they laid the blame on him. He shall not renounce the agreement, nor dispute it. They swore by Shamash, Marduk, and Ḥammurabi the king. The judgment of Isharlim. Four witnesses. Dated in Elul, the 9th year of Ḥammurabi.

This was a bad case of desertion. The husband, Sin-nâṣir, deserted his wife for twenty years, but on her death came back and claimed her property. This he was not allowed to do, by the Code.(176) In his absence, Ḥulaltum had cared for Aiatîa, either as his real, or only adopted, daughter. In either case, Aiatîa had left Ḥulaltum a slave-girl, Adkallim, whom Sin-nâṣir now claimed. His claim was disallowed.

The decisions which we now possess give little further information as to the legal procedure, but a series of abstracts will illustrate the legal points which they raise.

Ṣilli-Ishtar and Amêl-ili, sons of Ilu-eriba, were sued by Eribam-Sin, son of Ubar-Sin, concerning a house, etc., which they bought of Sin-mubaliṭ and his brothers. They say that they bought with money which Ṣilli-Ishtar received from his mother and which formed no part of that which they had in common with plaintiff as partners. Deposition accepted. Ḥammurabi 34.(177)

The sons of Zâziâ sue Sin-imgurâni and Sin-uzilli for rights in a house next the temple of Ningirsu, five days’ income in the temple of Sin, sixteen days’ income in the shrine of Bêlit, and eight days’ income in the shrine of Gula. Claim not made out. Era of Isin 6.(178)

Idin-Adadi and Mattatum have no claim on property which Ḥishatum has or shall inherit. Rim-Sin (?).(179)

Adadi-idinnam and Ardi-Martu agree on dissolution of partnership. Zabum 1.(180)

Brothers of Ur-ilishu agree not to proceed against Sala-ilu and Ur-ilishu concerning property left by latter. Apil-Sin (?).(181)

Family of Urra-gâmil sue Erib-Sin for account of his partnership with and his indebtedness to Urra-gâmil deceased. Erib-Sin settles. N. D.(182)

Sin-ellâtsu gave a ring to Ramê-Ishḫara. The children of Sin-ellâtsu agree not to sue her for it. Ḥammurabi (?).(183)

Private settlement of claims to property. N. D.(184)

In the above cases there is no explicit mention of judges. The next group are cases before judges where fact of suit, subject and result are given, but not the pleas presented.

Imgur-Sin and Ilu-eriba sue Iatratum concerning a house which she bought of their father. Nonsuited. Before judges of Babylon and Sippara.(185)

Ṣilli-Ishtar and Eribam-Sin entered into partnership. On dissolution of their partnership they chose judges, paid in their common stock and shared equally. The shares are scheduled in the deed of settlement. Ḥammurabi 34.(186)

Pala-Shamash and Apil-itishu dispute concerning a division of property. They obtain judges and city witnesses. The whole house and income is shared equally and each agrees to waive further claim. Ḥammurabi (?).(187)

The two sons of Ḳû-Ishtar disagreed as to their shares. Nidnat-Sin, the _rab_ Martu, makes equitable division. Ḥammurabi 33.(188)

Apil-ilishu and Pala-Shamash dispute the latter’s right to a house, ship, servants, money, and property in his possession. The city elders from Ḥuda and Shibabi gave judgment and confirmed the title of Pala-Shamash.(189)

The sons of Nûr-Shamash sue Bêlitum for the property left her. Before judges. Nonsuited. Sumu-lâ-ilu.(190)

Shunu-ma-ili and Mâr-erṣitim sue Ribatum concerning her right to the legacy of Salâ and Mullubtim. The judges assign her an income, _ḫibiltu_. Samsu-iluna 2.(191)

Marduk-mubaliṭ and Sin-idinnam sue Shâd-Malkat concerning her house in Bît Gagim. Judges confirm her title. Apil-Sin.(192)

Ḥuzalum and Pî-Malkat, children of Nabi-Shamash implead Shidi-lamazatanḫu of Gagim concerning various rights to incomes and rations in the temple of Shamash. The judges assign shares to each. Samsu-iluna (?).(193)

Aliḳu and Sumu-ramê sue Shakumâtim about a house they sold him. Nonsuited. N. D.(194)

Shamash-bêl-ili repudiates a sale of land to the Lady Mannashi. He is nonsuited. Ḥammurabi 15.(195)

Family of Ardi-rabish against Erib-Sin on account of property left them by Ardi-rabish. Nonsuited. Sin-mubalit 20.(196)

Ḥamaziru sues Manutum for house and property but is nonsuited. Sumu-lâ-ilu.(197)