(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 ingrat.i.tude 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 a.s.sault on a superior.

(M280) Banishment from the city was the penalty for incest.(156)

(M281) Rest.i.tution 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, rest.i.tution, goods for goods, ox for ox, a.s.s for a.s.s, _et cetera_, was ordered.(157)

(M282) But rest.i.tution of many times the damage inflicted is a distinct penalty. The Code orders threefold for cheating a princ.i.p.al,(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 cla.s.ses of land, where no comparison with the next field could be inst.i.tuted, 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" p.r.o.nounced 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 _aum = ana um_, "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 a.s.sociated with other names by the word _aum_. Thus we read:(173)

"Nishinishu, daughter of Rish-Sin, _aum_ Shamash-ellatsu, son of Itti-Sin-dinim."

(M289) It is not clear whether Shamash-ellatsu was the adversary of Nishinishu, 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 cla.s.s 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 Sala, was sued by the sons of Erib-Sin, Shumma-ilu and Mar-er?itim, concerning what Sala, 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 Mar-er?itim, 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 Aiatia had left to her daughter ?ulaltum. ?ulaltum had taken care of her mother Aiatia; while Sin-na?ir, the husband of Aiatia, who was in Buzu for twenty years, had left Aiatia to her fate, loved her not. Now after Aiatia was dead, Sin-na?ir laid claim on whatever Aiatia had, and on ?ulaltum for the maid Adkallim. Isharlim, the _rabianu_ of Sippar, with the Kar-Sippar, a.s.signed sentence; they laid the blame on him. He shall not renounce the agreement, nor dispute it.

They swore by Shamash, Marduk, and ?ammurabi the king. The judgment of Isharlim. Four witnesses. Dated in Elul, the 9th year of ?ammurabi.

This was a bad case of desertion. The husband, Sin-na?ir, 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, ?ulaltum had cared for Aiatia, either as his real, or only adopted, daughter. In either case, Aiatia had left ?ulaltum a slave-girl, Adkallim, whom Sin-na?ir 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 ill.u.s.trate the legal points which they raise.

?illi-Ishtar and Amel-ili, sons of Ilu-eriba, were sued by Eribam-Sin, son of Ubar-Sin, concerning a house, etc., which they bought of Sin-mubali? and his brothers. They say that they bought with money which ?illi-Ishtar received from his mother and which formed no part of that which they had in common with plaintiff as partners. Deposition accepted. ?ammurabi 34.(177)

The sons of Zazia sue Sin-imgurani 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 Belit, 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 ?ishatum has or shall inherit. Rim-Sin (?).(179)

Adadi-idinnam and Ardi-Martu agree on dissolution of partnership.

Zab.u.m 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-gamil sue Erib-Sin for account of his partnership with and his indebtedness to Urra-gamil deceased. Erib-Sin settles. N. D.(182)

Sin-ellatsu gave a ring to Rame-Ish?ara. The children of Sin-ellatsu agree not to sue her for it. ?ammurabi (?).(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)

?illi-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. ?ammurabi 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. ?ammurabi (?).(187)

The two sons of ?u-Ishtar disagreed as to their shares.

Nidnat-Sin, the _rab_ Martu, makes equitable division. ?ammurabi 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 ?uda and Shibabi gave judgment and confirmed the t.i.tle of Pala-Shamash.(189)

The sons of Nur-Shamash sue Belitum for the property left her.

Before judges. Nonsuited. Sumu-la-ilu.(190)

Shunu-ma-ili and Mar-er?itim sue Ribatum concerning her right to the legacy of Sala and Mullubtim. The judges a.s.sign her an income, _?ibiltu_. Samsu-iluna 2.(191)

Marduk-mubali? and Sin-idinnam sue Shad-Malkat concerning her house in Bit Gagim. Judges confirm her t.i.tle. Apil-Sin.(192)

?uzalum and Pi-Malkat, children of Nabi-Shamash implead Shidi-lamazatan?u of Gagim concerning various rights to incomes and rations in the temple of Shamash. The judges a.s.sign shares to each. Samsu-iluna (?).(193)