(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 s.e.x. 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 t.i.tle _tuparru_ 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 t.i.tles. That in later times the _amelu_ RID, whose t.i.tle can be read _angu_, usually acts as scribe is due to the peculiar nature of the doc.u.ments. 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 _ibu_, 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 cla.s.ses of persons to whom the term "witness"

can be applied.

(M242) First we have the elders, the _ibu_, 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 _pu?ru_, or "a.s.sembly," 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 _ibe arri_. They were not exclusively men, for we have _ibe u ibatu_.(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 a.s.sociated with the judges in such a way as to show that they were a.s.sessors.(95) They included judges sometimes, at any rate "this witness" is attached to a list of names which included a _nagiru_ of Babylon, a judge, and other high officials.(96) In the time of Nur-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 _ibi mudi_, "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 doc.u.ment. 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 _ibu_ was ever applied to the third cla.s.s 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 la ragami_. 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 G.o.ds 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 princ.i.p.als to the suit. There is no mention of an advocate, or solicitor. But the verb generally used of the plea _ragamu_, gives rise to _targumanu_, 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, _pakaru_, gave rise to _pakiranu_, 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 doc.u.ment, and regards the wrongful holder as laying claim to it. Hence, we must not a.s.sume 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, ?ammurabi 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 doc.u.ments. 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 G.o.d.(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 G.o.d."

(M255) In confirmation of the statements alleged witnesses might be called for, who were put on oath before G.o.d 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) Doc.u.mentary 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 p.r.o.nounce 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, _din Iarlim_, "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 doc.u.ment 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 G.o.d."(139) The name of the G.o.d by whom men swore is usually given. As might be expected, the G.o.d who figured most prominently in the Code was Shamash, the chief deity of Sippara, often a.s.sociated with his consort, Aia, or Malkatu. Sometimes the oath was "by the king."(140) Often one or more G.o.ds and the king are named together. When Babylon became supreme it was usual to swear by Marduk and the local G.o.ds 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 doc.u.ment. 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, _aaru_, 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 a.s.syrian times the oath did not play such an important part.

Still, it was in use occasionally. The oath is generally found in doc.u.ments of the grand style, such as royal charters. Oaths also are of interest for the pantheon of a.s.syria.(147) A common way of expressing the same thing was to call on a G.o.d 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 G.o.ds, "Ashur, Sin, Shamash, Bel, and Nabu, the G.o.ds of a.s.syria, shall require it at his hands" is another way of putting the case. These examples ill.u.s.trate 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, Bel, and Ea curse him with a bitter curse, may Nabu, 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. a.s.syria 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 doc.u.ments. 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 a.s.syrian 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 G.o.d, 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 G.o.d, or G.o.ddess. 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 G.o.d. 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 rest.i.tution 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 a.s.sessors 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 a.s.sault, for neglect of duties by certain officials, for allowing a seditious a.s.sembly, 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 a.s.sumed. For the Code brings several cases of murder under this penalty. Procuring the death of a husband is punished by it; even a fatal a.s.sault, 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.