CODE OF HAMMURABI
CODE OF HAMMURABI 595
But the sense of several words is doubtful, and we
do not know either the nature of the spell, or the kind of evidence required. In the second case, the plaintiff appears to demand the ordeal from the defendant, throwing on him the burden of proof that he is not a wizard. The ordeal by water, in other cases known to us, demanded that the guilty should swim and the innocent sink, but be saved in time. This may be the meaning here also. In either case the guilty one was put to death, and his opponent took his estates. In the next two sections we have false witness dealt with. If it endangered the life of the accused, the penalty was death (§ 3). If it involved corn or money, the false witness had to bear the same injury as he sought to bring on the accused (§ 4). By ‘slander’ in the first case may be meant ‘treason,’ or such offence against the State as was capital. At any rate, it is the ‘crime alleged.’
2. The judge is not very often named in the Code. If he had given a judgment and completed the business, it was irrevocable by him. He could not retry the case. Appeal to a higher court was allowed. If he retried the case, or altered his judgment, he was deposed from office, and had to repay twelvefold what he had given as the penalty of the case (§5). He had to examine into the depositions (§ 9), fix a time, within six months, for production of witnesses (§ 13), be present at the execution of sentences (§ 127), reconcile father and son (§ 168), inventory the property of a widow’s children on her remarriage (§ 174), decide family quarrels (§ 172). But his presence and decision are elsewhere implied, and, from the numerous legal decisions preserved to us, we conclude that he was constantly employed.
He had a local jurisdiction. Suitors might be referred from one court to another, or summoned to a higher court. He was a professional man, keeping his title even when not acting in a judi- cial capacity. Most higher officials of the State act as judges on occasion, and cases were often referred on appeal to the king. No priest ever appears as holding the office; but that may be because ‘judge’ was the higher title. We often find several judges together on the bench, and the highest official in rank doubtless was ‘ chief judge’ on that occasion. But there was an office of Chief Justice. There is no evidence that the judge had any fee. The king’s judges are referred to, but it is not certain that the king appointed all. Cer- tainly, the office was hereditary in some cases.
3. Witnesses played an important part in the law courts. The term applied to them, szbw, really means ‘grey-headed,’ and they were probably, therefore, the elders of the city. As such, they were expected to know the rights of the case as well as its facts. But the term gradually ex- tended its area. Those who know (midu) were not necessarily old, and they are called 571 (§ 9). We may distinguish three classes of witnesses who all eos the same name: (i.) the ‘ elders,’ who appear as assessors with the judge, and form a sort of jury ; (ii.) the ‘deponents’ in a court, who were put on oath, and whose false evidence is penalized ($$ 1-4) ; (iii.) the attesting witnesses to a docu- ment. In the case of legal decisions these included the whole of (i.), but also interested persons ; in ordinary contracts, relatives of the principal parties, neighbours whose estates adjoined, and often per- sons who seem to have been regularly available at the court. In later times this class were called the mukinné, or ‘confirmers.’ The parties, especi- ally the plaintiff, were often called upon to * justify their plea. This was done by witness. Cases had to be adjourned for the production of witnesses (§ 13). Purchase from a minor (§ 7), deposit (§ 122), and even sale (§ 9), were invalid without witnesses.
4. The plaintiff pleaded his own case. There were no professional advocates. As a rule, in disputes the parties agreed to submit the case to judges, and together ‘captured’ a judge, who gave them a decision. They mutually swore not to reopen the case. Many cases were, so to speak, settled out of court. The parties mutually agreed, got an agreement drawn up by a scribe, and swore to observe it. There is no mention of a judge in such cases, but the oath was taken in the temple.
5. The death penalty may be regarded as simple or specific. In most cases it is enacted in the words ‘he shall be killed’ (tddak). In these cases we are quite in the dark as to how it was inflicted, or what was its nature. It may be noted that the penalty is permissive, not imperative. The verb is imper- fect, the ‘shall’ of the version is future. That this was the case, is seen by the fact that a clause was introduced in one case allowing the husband to pardon his wife and the king to reprieve his ser- vant (§ 129). In another case death is only in default of multiple restitution (§ 8). We read of other cases where the plaintiff accepted a com- position. In fact, the Code marks the transition from the period when blood-revenge ruled. There is no trace of this left. The Code, however, does not refer to deliberate murder at all. Whether, in that case, the avenger’s right was too strong to be