Chapter V: A. Th. denotes a text in the Berlin Museum (4)

(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.

(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)

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.

Thus:(216) a scribe A prosecuted a farmer B for the theft of a
bull. They came before Nabû-zêr-kênish-lîshir, the deputy _ḫazânu_
of Nineveh. Restitution, bull for bull, was imposed on the
defendant, who meantime was held for the fine. “On the day that he
shall have made good the value of the bull he shall go free.”
Dated the 12th of Elul. Eponymy of Mushallim-Ashur. Twelve
witnesses.

Again:(217) A stole four slaves of B, who summoned him before the
_sukallu_. The judge laid on him a fine of two hundred and ten
minas of copper. B then deposited a pledge with A, either himself,
or a slave, to perform work equivalent to the amount of the debt.
If B, or any representative of his, pays the money, the pledge is
void. “Whoever shall withdraw from this agreement, Ashur and
Shamash shall be his judges, he shall pay ten minas of silver and
ten minas of gold, he shall pay it in the treasury of Bêlit.”
Dated the 10th of Adar, B.C. 678. Eleven witnesses.

Here is another case, relating to a breach of trust:(218)

(M295)

The decision of the chief-justice, which he laid on Ḥanî. Three
hundred sheep, with their belongings, property of the king’s son
were lost, or killed by the shepherds. Each shepherd was condemned
to pay two talents of bronze as his fine. Ḥanî, and his people,
and his fields, were taken as security for the payment for the
three hundred sheep, and the fines due from the shepherds.
“Whoever shall demand him, his _šaknu_, his _rab kiṣir_, or any
representative of his, shall pay for three hundred sheep and the
fines for the shepherds and then Ḥanî shall be released.” Dated
27th of Sebat, B.C. 679. Four witnesses.

The defendant had been intrusted with three hundred sheep, which he had to return in full, with a proper increase of lambs. But, evidently in the disorders which arose on the death of Sennacherib, Ḥanî had lost or made away with them. If he had intrusted them to shepherds, either the shepherds had killed them, or, as some take it, Ḥanî had killed the shepherds. In the former case he owed two talents of bronze as fine from each shepherd, in the latter he had to pay the same amount for each. Either way, he was held responsible for the value of three hundred sheep and two talents of bronze for each shepherd. He and all he had were seized for the liability. It is interesting to note that his district governor, or the colonel of the regiment to which he belonged, was thought likely to liberate him; but some other representative might do so. The lost property belonged to the king’s son. This may have been Esarhaddon, or one of Sennacherib’s other sons. But, at any rate, it is clear that Esarhaddon was putting his household in order.

(M296) The other examples known to us do not add to our legal knowledge. The subjects are chiefly misappropriations of property and there is little variety.

(M297) The later Babylonian tablets throw some light upon legal procedure in Babylon. The greater detail exhibited by them is due largely to the fact that for this period we have so many private documents. The greater portion of the material for this part of the subject has been worked over by Professor J. Kohler and Dr. F. E. Peiser, in their valuable treatise _Aus Babylonische Rechtsleben_. Little can be added beyond additional examples and illustration.

(M298) The judges acted as a college and not separately. There might be present at a case a chief judge and several judges assisting. Other cases were decided before a single judge. The _šibûtu_ continue to act as a jury. They were the elders of the city, competent to decide the rights of the case. But the exact form of the organization is not yet quite clear.

The process began with the charge. The plaintiff preferred this himself, or by a messenger. His plea was heard and his proofs considered. Then the court caused the accused to come before them and answer the charge.

(M299) The process admitted of a third person intervening. Thus, A had pledged a plot of land to B for thirty-two shekels. Then he sold the property to C. C, dying, left the property to D, who wished to take possession from B, who continued to hold it in pledge. B goes to the judges and complains against D. A, being yet alive, intervenes and probably has to pay B. But the tablet being defective, we are not able to follow the case further. Only we see the sort of right which each had.

(M300) Another case is where two parties dispute as to the possession of a sum which is actually in the hands of a banker. The banker accordingly undertakes to produce the sum and its interest in court, and to pay it over to the successful party in the suit. The decision was written down and the notary of the court gave a copy to the plaintiff, if not also to the defendant, and kept one copy for the archives. The plaintiff thus obtained a guarantee against the defendant. But how it was enforced we have no evidence.

(M301) The kind of points in dispute and decided are, as before, exceedingly varied. The decisions for the most part illustrate other subjects rather than the processes in court; but a few examples may be of interest: A made an advance of forty-four shekels to B, who pledged a house for it. This state of affairs continued until both were dead. Their sons inherited. A’s son demanded forty-four shekels of B’s son who refused to pay. Both came before the judges. B’s son, pleaded that the money was never loaned or else repaid long ago. The judges demanded evidence. Either the contract or a receipt must be produced. The claimant was able to present the contract, but no receipt was produced. So the judges assigned the claimant a plot of land belonging to the defendant as satisfaction for the proved debt. Here we have the tablet witnessed by the chief judge, the judges, and the notary.(219) What is curious is that the claimant was not content to keep the pledge. But it is probable that the debt was secured on a house which the creditor did not take into his possession. It is also surprising that the judges did not order the house to be handed over to the claimant. That may have been avoided, because of the family rights over the house. The debtor might thus have been rendered houseless, or have lost “his father’s house.” The widow may still have been an inmate. A great part of the document is taken up with the specification of the land handed over to the claimant. Hence a complete translation is not given.

(M302) A common type of case was a vindication of right to some sort of property. Thus(220) A had sold B a slave, but C came forward and said: “He is my slave who fled from me,” and took an oath by Bêl and Nabû, that he knew where that slave was living with A. The judges decide that C shall go where the slave is, and when he has proved that he is with A, the slave shall return to C.

(M303) We have an acknowledgment before the court and a promise to pay the debt. This promise was usually made on oath, or guarantees were given. Here is an involved case. A is father of B’s mother. B’s father is long dead. The property of A, his grandfather, has now come into B’s hands. He finds an old bond for an advance from A to C and D. The latter D is also dead but had a son E, who inherited. Hence B now sues C and E for the money. The bond is shown to C, who remembers and acknowledges the debt and he now undertakes to bring his fellow-debtor E and discharge the debt.