A curious extension of the talio is the death of creditor's son for his father's having caused the death of debtor's son as mancipium; of builder's son for his father's causing the death of house-owner's son by building the house badly; the death of a man's daughter because her father caused the death of another man's daughter.

The contracts naturally do not concern such criminal cases as the above, as a rule, but marriage contracts do specify death by strangling, drowning, precipitation from a tower or pinnacle of the temple or by the iron sword for a wife's repudiation of her husband. We are quite without evidence as to the executive in all these cases.

Exile was inflicted for incest with a daughter; disinheritance for incest with a stepmother or for repeated unfilial conduct. Sixty strokes of an ox-hide scourge were awarded for a brutal assault on a superior, both being amelu. Branding (perhaps the equivalent of degradation to slavery) was the penalty for slander of a married woman or vestal. Deprivation of office in perpetuity fell upon the corrupt judge. Enslavement befell the extravagant wife and unfilial children. Imprisonment was common, but is not recognized by the Code.

The commonest of all penalties was a fine. This is awarded by the Code for corporal injuries to a muskinu or slave (paid to his master); for damages done to property, for breach of contract. The restoration of goods appropriated, illegally bought, or damaged by neglect, was usually accompanied by a fine, giving it the form of multiple restoration. This might be double, treble, fourfold, fivefold, sixfold, tenfold, twelvefold, even thirtyfold, according to the enormity of the offence.

The Code recognized the importance of intention. A man who killed another in a quarrel must swear he did not do so intentionally, and was then only fined according to the rank of the deceased. The Code does not say what would be the penalty of murder, but death is so often awarded where death is caused that we can hardly doubt that the murderer was put to death. If the assault only led to injury and was unintentional, the assailant in a quarrel had to pay the doctor's fees. A brander, induced to remove a slave's identification mark, could swear to his ignorance and was free. The owner of an ox which gored a man on the street was only responsible for damages if the ox was known by him to be vicious, even if it caused death. If the mancipium died a natural death under the creditor's hand, the creditor was scot free. In ordinary cases responsibility was not demanded for accident or for more than proper care. Poverty excused bigamy on the part of a deserted wife.

On the other hand carelessness and neglect were severely punished, as in the case of the unskilful physician, if it led to loss of life or limb his hands were cut off, a slave had to be replaced, the loss of his eye paid for to half his value; a veterinary surgeon who caused the death of an ox or ass paid quarter value; a builder, whose careless workmanship caused death, lost his life or paid for it by the death of his child, replaced slave or goods, and in any case had to rebuild the house or make good any damages due to defective building and repair the defect as well. The boat-builder had to make good any defect of construction or damage due to it for a year's warranty.

Throughout the Code respect is paid to status.

Suspicion was not enough. The criminal must be taken in the act, e.g. the adulterer, ravisher, etc. A man could not be convicted of theft unless the goods were found in his possession.

In the case of a lawsuit the plaintiff preferred his own plea. There is no trace of professional advocates, but the plea had to be in writing and the notary doubtless assisted in the drafting of it. The judge saw the plea, called the other parties before him and sent for the witnesses. If these were not at hand he might adjourn the case for their production, specifying a time up to six months. Guarantees might be entered into to produce the witnesses on a fixed day. The more important cases, especially those involving life and death, were tried by a bench of judges. With the judges were associated a body of elders, who shared in the decision, but whose exact function is not yet clear. Agreements, declarations and non-contentious cases are usually witnessed by one judge and twelve elders.

Parties and witnesses were put on oath. The penalty for false witness was usually that which would have been awarded the convicted criminal. In matters beyond the knowledge of men, as the guilt or innocence of an alleged wizard or a suspected wife, the ordeal by water was used. The accused jumped into the sacred river, and the innocent swam while the guilty drowned. The accused could clear himself by oath where his own knowledge was alone available. The plaintiff could swear to his loss by brigands, as to goods claimed, the price paid for a slave purchased abroad or the sum due to him. But great stress was laid on the production of written evidence. It was a serious thing to lose a document. The judges might be satisfied of its existence and terms by the evidence of the witnesses to it, and then issue an order that whenever found it should be given up. Contracts annulled were ordered to be broken. The court might go a journey to view the property and even take with them the sacred symbols on which oath was made.

The decision given was embodied in writing, sealed and witnessed by the judges, the elders, witnesses and a scribe. Women might act in all these capacities. The parties swore an oath, embodied in the document, to observe its stipulations. Each took a copy and one was held by the scribe to be stored in the archives.

Appeal to the king was allowed and is well attested. The judges at Babylon seem to have formed a superior court to those of provincial towns, but a defendant might elect to answer the charge before the local court and refuse to plead at Babylon.

Finally, it may be noted that many immoral acts, such as the use of false weights, lying, etc., which could not be brought into court, are severely denounced in the Omen Tablets as likely to bring the offender into "the hand of God" as opposed to "the hand of the king."

Bibliography

Contracts in general: Oppert and Menant, Documents juridiques de l'Assyrie et de la Chaldée (Paris, 1877); J. Kohler and F. E. Peiser, Aus dem babylonischen Rechtsleben (Leipzig, 1890 ff.); F. E. Peiser, Babylonische Vertrage (Berlin, 1890), Keilinschriftliche Actenstücke (Berlin, 1889); Br. Meissner, Beiträge zur altbabylonischen Privatrecht (Leipzig, 1893); F. E. Peiser, "Texte juristischen und geschäftlichen Inhalts," vol. iv. of Schrader's Keilinschriftliche Bibliothek (Berlin, 1896); C. H. W. Johns, Assyrian Deeds and Documents relating to the Transfer of Property (3 vols., Cambridge, 1898); H. Radau, Early Babylonian History (New York, 1900); C. H. W. Johns, Babylonian and Assyrian Laws, Contracts and Letters (Edinburgh, 1904). For editions of texts and the innumerable articles in scientific journals see the bibliographies and references in the above works. "The Code of Hammurabi," Editio princeps, by V. Scheil in tome iv. of the Textes Elamites-Semitiques of the Mémoires de la délégation en Perse (Paris, 1902); H. Winckler, "Die Gesetze Hammurabis Königs von Babylon um 2250 v. Chr." Der alte Orient, iv.

Jahrgang, Heft 4; D. H. Müller, Die Gesetze Hammurabis (Vienna, 1903); J. Kohler and F. E. Peiser, Hammurabis Gesetz (Leipzig, 1904); R. F. Harper, The Code of Hammurabi, King of Babylon about 2250 B.C. (Chicago, 1904); S. A. Cook, The Laws of Moses and the Code of Hammurabi (London, 1903).

(C. H. W. J.)

[1] For the transliteration of Babylonian and Assyrian names generally, see Babylonia and Assyria, section ix., Proper Names.