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)
Kasha-Upi bought a house of Itti-itishu and his sons, Bêlshunu and
Ilushu-bânî. Amêl-Ninshuna, son of Bêlshunu, brought a suit about
the house. Judges condemn him to be branded on the forehead and
confirm Kasha-Upi’s title. Sin-mubalit.(198)
Nishinishu sues Ana-erishti-Malkat for three _SAR_ of land before
the king’s judges. Nonsuited. Samsu-iluna 2.(199)
Malkat-kuzub-mâtim sues Ani-talime for restitution of a field,
before the judges of Babylon and Sippara. The witnesses sustain
her claim, which is granted. Samsu-iluna 3.(200)
The family of Izidaria sue the family of Azalîa about the property
of Izidaria deceased. Their title is confirmed. Zabum 12.(201)
Shamash-bêl-ili sues Nidnusha concerning a house bought by him of
her. The judges grant him two shekels of silver. Ḥammurabi 1.(202)
Shî-lamazi sues her brothers for a field and wins her case.(203)
Before Lushtamar, _nâgiru_ of Babylon, Adadi-idinnam and
Ibku-Ishtar, judges, Zariku was put to the oath and replied to
Erib-Sin. He was told that as his domicile was at Sippara, he must
not make his appeal to the judges of Babylon. So his case was
dismissed. Ḥammurabi 28.(204) The record is defective.
Cases before judges where the plea and its result can be made out with
some certainty are as follows:
Ardi-Sin, son of Eṭiru, sued the sons of Shamash-nâṣir who had
sold a plot of land, two and a half _GAN_ in area, to Ibni-Adadi
the merchant. He claimed the land as ancestral domain, _bît
abišu_, and denied that he had ever alienated it. The sons of
Ibni-Adadi, now in possession, produced the deed of sale, _duppu
šimâti_, which Eṭiru and Sin-nâdin-shûmi, his brother, had
executed to Shamash-nâṣir and his son. The judges assigned a small
portion of the land, about a sixth, to Ardi-Sin, but make up the
rest, apparently, from another quarter. Ammizaduga (?).(205)
Mâr-Martu bought the garden of Sin-mâgir. Ilubânî disputed the
legality, _ṣimdattu_, of the sale. Before the judges at the gate
of Nin-marki he deposed that he was the adopted son of Sin-mâgir,
which adoption had never been revoked. In the time of Rim-Sin the
house and garden had been awarded to Ilubânî and then Sin-mubaliṭ
had brought a suit against Ilubânî, which was regularly heard
before judges and witnesses from Nin-marki. They had awarded the
house and garden to Ilubânî. Sin-mubaliṭ was now bound over to
dispute the title no more. Ḥammurabi.(206)
Here it seems that on the deposition of Rim-Sin by Ḥammurabi, Sin-mubaliṭ,
excluded by his bond from disputing Ilubânî’s title, sold his claim to
Mâr-Martu, who attempted to enter into possession. Possibly it was thought
that the new rulers would reverse the old decision.
(M293)
The sons of Namiatum sue their mother, Iashuḫatum, about her share
of their father’s property. She appears before the judges of
Babylon and puts in an inventory to show that she has taken
nothing from the family possessions. Then the sons of Namiatum
renounce further claim on the ground of family possession to the
property of Idin-Adadi, Iashuḫatum and their descendants.
Samsu-iluna 2.(207)
It seems that, after the death of Namiatum, Iashuḫatum married again. The
children of the first marriage bring an action to secure judgment that she
shall not take with her any property of their father’s. She had, as we
know, a right to take with her her marriage-portion, but not her husband’s
gifts to her.
Amêl-Ninsaḫ sues Garudu for the rent of a field. The debtor not
paying was ejected. Apil-Sin.(208)
Shûmi-erṣitim sues for right to a sheep and some corn, the
_naptánu_ of a god. Judges grant him half share. Ḥammurabi 9.(209)
Judges summon Ibik-iltum before Elali-bânî to account for corn. He
purges himself on oath. N. D.(210)
Amat-Shamash claims to be the adopted daughter of Shamash-gâmil
and his wife Ummi-Araḫtum. Her witnesses proving unsatisfactory,
her claim was disallowed on the oath of Ummi-Araḫtum that they had
never adopted her. Ḥammurabi (?).(211)
Ilushu-abushu hired a pack-ass, _imer bilti_, of Ardi-Sin and
Ṣilli-Ishtar and lost it. The judges awarded them sixteen shekels
of silver as compensation. Apil-Sin 5.(212)
Babilîtum sued Erish-Saggil, Ubar-Nabium, and Marduk-nâṣir for a
share of her family possessions, _bît abiša_. The judges assigned
her a share. Samsu-iluna 5.(213)
Nidnusha and Shamash-abilu sue the daughter of Sin-eribam about
property which she claimed to have inherited. They charge her with
having forged the will of Amti-Shamash in her favor. The judges
went to Gagim, where the property was, and examined witnesses who
proved that Amti-Shamash had left the property to the daughter of
Sin-eribam. The judges therefore confirmed her title. N. D.(214)
Mâr-erṣitim left a female slave Damiḳtum to Erib-Sin. His wife
Mazabatum and his brother Ibni-Shamash dispute this legacy. The
judges inspect a document by which Erib-Sin, on the suit of
Mâr-erṣitim, had granted Damiḳtum to Mazabatum and Ibni-Shamash.
The judges return Damiḳtum to Mazabatum. Ḥammurabi (?).(215)
(M294) In Assyrian times we have comparatively few legal decisions. The
judges who appear are the _sartênu_, or chief-justice; the _ḫazânu_, the
chief civil magistrate of a city, the parallel of the ancient _rabiânu_;
the _sukallu_, or chamberlain; and one or two others, besides the simple
_daiânu_, or judge. Some of these are not judicial officers, but act in
that capacity.
Usually the judge is said to lay the blame on the guilty party, _arnam eli
A emêdu_; or to lay the penalty upon one, _sartu eli A emêdu_. The
sentence itself was a _dienu_, or “judgment.” As in former times, the
legal decisions refer to all manner of cases, and here more than anywhere
else a mere translation does not convey much meaning to the reader.