are not necessarily to be expected in historical inscriptions, and partly
because we do not really know which are the earliest monuments of the
race, it is impossible to decide when law-courts first came into
existence. It is generally admitted, however, that the stele of Manistusu
is one of the earliest known monuments. There we read of Galzu, a judge.
There also we find many of the officials, who later acted as judges upon
occasion. Hence it may fairly be said that judges were to be found in
ancient Babylonia from time immemorial. They must have decided what was
right when there was no written law to which to appeal. With the judges
were associated as assessors the elders of the city. This was so marked a
feature, that in some cases we read, that after hearing the complaint the
judge “assembled the city” to hear the case. In Babylonia the maxim,
_littera scripta manet_, was so well understood that hardly anything of
importance was done without committing it to writing. Hence we are as well
informed about domestic affairs in Babylonia as about those of Europe in
the Middle Ages.
(M229) It seems best to consider legal usages first, because they are
essential to the understanding of all others. When we have a simple
contract between two parties we do not at once see where the reference to
the law comes in. But the contract was not valid unless sealed and
witnessed. The sealing was accompanied by an oath. The oath probably had
to be made in court. The witnesses seem often to have been a body of men
who could only be found at the court. Even when there is least trace of
the law and the judge, the case is similar to others where the judge
appears explicitly. It is also worthy of remark that, partly owing to our
possession of the Code and partly owing to the fuller nature of the legal
decisions, we know far more of this subject, as of many others, in the
early periods than in the later. Hence the discussion of early legal usage
is unusually full. When the evidence from later times merely supports
this, it will not be noticed. Only divergences are worthy of record. As a
rule, the procedure changes very little for many centuries.
(M230) 1. *Judges.* The references to judges are less numerous than one
would expect in the Code. But it seems probable that the sentences there
laid down had to be pronounced by the judge, if not carried out by him. We
are, however, still in complete ignorance as to the machinery of police
administration. We may argue from analogy in other countries and ages, but
this is not a theoretical treatise on comparative sociology. We must
content ourselves with direct evidence.
(M231) Some sections deal explicitly with the duties of a judge. Thus,(80)
if a judge had given a judgment, decided the case, and embodied it in a
legal decision, he was subjected to severe penalties for afterwards
revoking his decision. If he had inflicted a penalty, he had now to repay
it twelvefold to him from whom it was exacted. Further he was to be
publicly deposed from his office, expelled from his seat of judgment,
_kussû daianûtišu_, and no longer be permitted to sit with the judges. It
is, of course, assumed that when he was called to account he could not
justify his former judgment, or else could not justify the change. But, as
the law reads, it seems simply calculated to render a judgment, once
pronounced, irrevocable,—at any rate, for that judge. Probably its
revocation, in the case of injustice, was provided for by the right of
appeal.
He had to consider the words of the witnesses, _amâtišunu amâru_,
literally, “to see their words,” perhaps implying that the depositions
were written, but there are instances where _amâru_ simply means “to
consider.”(81)
In a criminal case, where a man had to produce witnesses to save his life
from a death-sentence, the judge might grant him six months’ grace in
which to produce his witnesses.(82) In later times we have many examples
of such a stay of process that evidence might be produced.(83)
(M232) Special directions are also given to a judge as to his procedure,
when a father was minded to disinherit his son; or, when a widow with a
young family wished to marry again.(84) A slanderer was summoned before
the judge,(85) a son could not be cut off without referring the case to a
judge,(86) the children who wished to turn their widowed mother out of her
house had to appear before a judge.(87)
(M233) For the most part judges constituted a distinct profession, but it
must not be understood that they had no other means of livelihood. Indeed,
there is no hint anywhere that they received any remuneration for their
services. But it was a high honor and by no means subsidiary to another
office. Among those who officiated as judges we find most of the higher
officials. Doubtless the king himself acted as judge on occasions, and
probably no great official of the realm was wholly free from the call to
act in a judicial capacity. But, as a rule, the judge is simply noted as
“judge.” That the priests were judges is quite unproved. The judges were
men of great importance and high rank, but there is nothing to show that
they were priests. An age qualification is more likely.
(M234) The judge was a professional man. We often find a man, bearing the
title “judge,” acting as party to a suit, or witness to a deed, when he is
certainly not acting in his judicial capacity. To a certain extent he was
a territorial officer, had his own district for jurisdiction, and was
jealous of cases being taken elsewhere. How the ranks of the judges were
filled we do not know, but there is a hint of royal appointment in the
phrase, “the king’s judges.” On the other hand, there is clear evidence of
the office being hereditary. Thus, Ibik-Anunîtum had no less than three
sons, Idin-Ishtar, Marduk-mushallim, and Nannar-idinnam, all judges.
Whether a right to the office descended in the female line is not quite
clear, but we find a lady, Ishtar-ummu, among the judges, on occasion. She
was also the scribe.(88)
(M235) Though many high officials acted as judges, and so doing are named
before the simple “judge,” there is no evidence of the existence of any
“chief judge.” The order of names appears to be that of seniority alone.
This may be due to the nature of our documents. The phrase-books name a
“chief judge” for Sumerian times. In the later Assyrian period the
chief-justice was called _sartênu_, evidently because he fixed the
_sartu_, or fine, on the condemned party. Then also many high officials
acted as judges.(89)
(M236) 2. *Scribes.*—The scribe exercised his craft as a profession. One
often meets with a scribe, _tupšarru_, acting in a private capacity, as
party to a suit, or as witness. He retains the title even when the deed is
drawn up by another writer. The class was very numerous. Almost every
document is drawn up by a fresh scribe, so far as the scribe’s name is
recorded, for he often omits his title. Generally he is the last of the
witnesses, but not always so.
(M237) He wrote the whole of the document, including the names of the
witnesses. There is no evidence that anyone else ever wrote a word on the
document. As a rule, even when the names of the fathers of the witnesses
are given, the scribe is content to write only his title after his name.
Hence we have no evidence whether the office was hereditary or not.
(M238) Women certainly were scribes. Out of a total of ninety names of
scribes known, at least ten were women. Here a difficulty arises from the
way in which women’s names occur. At this period proper names are usually
written without the determinative which marks sex. Nor do the names
decide, for both men and women bore the same name. Thus Taribatum is the
name of two men and also of two women. Only when the title _tupšarru_ is
given, is the feminine determinative prefixed to that. We have, however,
ten clear examples.
In the later times the scribe usually was a man, but female scribes are
known.(90) The Aramaic scribe is often named, also the Egyptian. The
scribe usually “held” the agreement, which probably means that the parties
were willing to leave it in his safe-keeping.
(M239) The scribe was not a judge. It may be true that he sometimes acted
as judge or became one, but then the higher office overshadowed the lower.
He was no longer scribe but judge. A judge may sometimes have written down
his legal decision and so acted as scribe, but we have no evidence of such
a case. The judge seems never to have dispensed with the services of the
scribe.
(M240) The scribe was not a priest. There is no evidence whatever that
either priests were all scribes, or could all write, or that scribes were
necessarily priests. As a matter of fact, the same man may have acted both
as scribe and priest. But the offices are distinct and no one man ever
bears both titles. That in later times the _amêlu_ RID, whose title can be
read _šangû_, usually acts as scribe is due to the peculiar nature of the
documents. These concern transactions in which the property of the temple,
or of its officials, was in question, and one of the college of priests
attached to that temple was charged with the duty of notary where temple
interests were concerned. One might as well say that every clerk in the
Middle Ages was a priest, because all the deeds of the monastery with
which we were dealing were drawn up by Brother A, whose name was entered
in some monastery list of the brethren as a priest. Whether the scribes
were clerics, and always attached to some temple, in minor orders, is not
clear. On the whole, the evidence is against this conclusion.
(M241) 3. *Witnesses.*—The word used to designate a witness is _šîbu_,
which denotes those who are “gray-headed,” but it is not certain that it
can have no other meaning. It may mean those who were “present.” In actual
use we can distinguish three classes of persons to whom the term “witness”
can be applied.
(M242) First we have the elders, the _šîbu_, of a city.(91) Possibly the
Kar-sippar, by which some men swore, or in presence of which a contract
was drawn up, were these elders of Sippar. They formed the _puḫru_, or
“assembly,” in whose presence a man was scourged,(92) from which a
prevaricating judge was expelled.(93) They may have been nominated, or at
least approved, by the king; for we read of _šîbê šarri_. They were not
exclusively men, for we have _šîbê û šîbatu_.(94) The recurrence of the
same names, at the same dates, indicates that a body of official witnesses
were held in readiness to act on such occasions. Many of them were temple
officials, or members of the guild of Shamash votaries.
(M243) Sometimes they are associated with the judges in such a way as to
show that they were assessors.(95) They included judges sometimes, at any
rate “this witness” is attached to a list of names which included a
_nâgiru_ of Babylon, a judge, and other high officials.(96) In the time of
Nûr-Adadi they sent a case before the king.(97) They actually gave
judgment.(98) We may regard them as a jury, especially a grand jury,
qualified by their own knowledge to understand the rights of the case and
to judge of evidence. The judge gave the sentence.
(M244) Secondly, we may distinguish the witnesses examined on oath. It is
not clear that these were called by the same name. In the Code we read of
_šîbi mûdi_, “the witnesses that know,” who seem to resemble very closely
the Greek _Histores_. These, of course, were usually not on the jury. They
testified, and were chosen by the parties to the suit. But the judge might
examine persons who, in his opinion, would know. He selected and sent for
them, directing the parties whom to produce. He might even adjourn the
case for the production of witnesses.(99)
(M245) Thirdly, we may distinguish the witnesses to a document. Very often
we can discern that these had an interest in the case. They might be
relatives of the parties, neighbors of the estate in question, officials
whose rights were concerned. In later times they received the special name
of _mukinnu_, “the establishers.” They may be presumed to have known at
least the general purport of the deed which they witnessed. When the deed
was called in question, they would be cited to state what they knew. In
the case of legal decisions, both judges and jury occur as witnesses in
this sense. Hence, in a great many cases the distinctions drawn above do
not hold. Whether the term _šîbu_ was ever applied to the third class is
doubtful. Their names are usually preceded by the sign which means
“before,” however it was read.
(M246) 4. *Cases of dispute settled out of court.*—When parties disagreed,
they might discuss their difference between themselves and arrive at an
agreement. Then they procured a scribe, who embodied the agreement in a
binding compact, _duppu lâ ragâmi_. This took the form of a contract, the
parties mutually undertaking not to withdraw from the agreement, re-open
the dispute, or bring legal action, one against the other. To give
sanction to this agreement, they swore by the gods and the king. Witnesses
were called upon to be cognizant of and attest the contract; and their
names were added to the contract. To authenticate their names both parties
and witnesses often impressed their seals or, in default of seals, made a
nail-mark. The date was then added. Each party seems to have taken a copy
of the agreement and the scribe held a third, or deposited it in the
archives. Such cases may be said to have been settled “out of court.” At
any rate they contain no reference to a judge, or court. But it is
possible that the administration of the oath was a judicial, or perhaps a
sacerdotal function. Further, the witnesses may have been drawn from a
body of men held in readiness at court to perform that function. It is
certain in some cases, that agreements arrived at independently were taken
to a judge for confirmation,(100) and the Code expressly directs some
cases to be taken to a judge. But it is probable that many cases were
settled by mutual agreement.
(M247) When the intervention of a judge was deemed essential, one of the
parties “complained.” The word really means to “cry out,” “protest”; but
it is used in the freest way as equivalent to bringing the action. There
is no evidence that anyone then submitted to wrong “under protest.”
Whether the people were naturally litigious, or simply because access to
the courts was so easy, a protest usually involved a suit.
(M248) The plea was made by the principals to the suit. There is no
mention of an advocate, or solicitor. But the verb generally used of the
plea _ragâmu_, gives rise to _targumânu_, the original of the modern
dragoman. He usually appears in later texts as the “interpreter,” but may
originally have been the “advocate.” At any rate, in the bilingual days he
might well have combined the offices. Another verb common at this period,
_pakâru_, gave rise to _pâkirânu_, later the usual word for “plaintiff,”
or “claimant.”
(M249) Here may be noted a peculiarity of the scribe’s conception of the
case. It will be found that, as he puts the case, the plaintiff generally
loses. This is because the scribe will not prejudge the case by saying who
was right. He writes “A claimed the property of B.” In actual fact it may
have been that B laid claim to what he proved was his. But that excludes
the scribe from saying that B claimed the property of A, because it never
was A’s. Hence, writing after the event, he ascribes the property to the
rightful owner from the start of his document, and regards the wrongful
holder as laying claim to it. Hence, we must not assume that the parties
were not both claimants. In fact, both parties agreed, as a rule, so far
as to submit their case to a judge. This is clear from the statements
which follow the statement of the cause of dispute. Both parties “went to
the judges,” or rather quaintly, “they captured a judge.” The preliminary
discussion between the parties resulted in agreement to submit the case to
a judge. Both were willing to abide by the decision. Once, it is true, the
plaintiff is said to have caught the defendant;(101) but there is no
evidence of unwillingness to submit. So too, when the parties are said to
“receive a judge,” they evidently both sought him.
(M250) Sometimes affairs did not go so smoothly. One party had to act and
bring the other before the judges(102) or “caused them to come before the
judge.”
There are indications that the judges sometimes had to summon a party
before them, or as the scribe puts it, “bring him before the other party.”
This is also expressed by the judges “sending up” a party.(103)
(M251) There is considerable evidence that cases might be sent before the
judges by a higher party, the king himself. These cases were probably on
the suit of a plaintiff. In the letters of the First Dynasty we have
examples of the king sending to the local judges his own decision on the
case, which they had to carry out; or in other cases he simply sent the
case for trial.(104)
(M252) The parties, having found a judge and obtained a day for hearing,
“entered,” or “went down to,” the great temple of Shamash, at Sippara,
called Ebabbarim.(105) There, as we know, Ḥammurabi set up one of the
copies of the Code. The case was heard sometimes at the “old gate.”(106)
At Babylon, the parties were taken to the temple of Merodach,
Esagila.(107) At Larsa, the “gate” of _NIN-MAR-KI_, or the temple of Sin,
might be chosen.(108) The temple of Ishhara is also named.(109)
(M253) 5. *Procedure.*—We have only scattered hints regarding legal
procedure. The Code says that the judges “saw the pleas.”(110) The scribe
uses the same expression.(111) As a rule, he records the plaintiff’s
statement of claim first. Then he records a counter-statement. There is a
strong suggestion that he quotes from written documents. The judges read
these, or heard the verbal statements.
(M254) As part of the legal process, the object in dispute, or, at any
rate, the deeds relating to it, were brought into court, and resigned into
the hands of the god.(112) He was to discern the rightful owner and
restore the object to him. Hence the decision was “the judgment of Shamash
in the house of Shamash,(113) the judgment of the house of Shamash.”(114)
So the defendant was said “to make his account before Shamash.”(115) In
bringing a suit the parties “sought the altar of Shamash.”(116) In case of
loss or damage, the claimant recounted it “before god.”
(M255) In confirmation of the statements alleged witnesses might be called
for, who were put on oath before god and the king. They were supposed to
know the object claimed and whose it was,(117) or to know that a
transaction had taken place.(118)
(M256) Tampering with witnesses, or with a jury, was penalized by the
Code.(119) The judges might refuse to accept the witness,(120) and then
might decide the case on the sworn deposition of the plaintiff.
(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.