Part 10

(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.