Babylonian Law - Punishment

Punishment

In the criminal code, the ruling principle was the lex talionis. Eye for eye, tooth for tooth, limb for limb was the penalty for assault upon an amelu. A sort of symbolic retaliation was the punishment for the offender, seen in cutting off the hand that struck a father or stole a trust; in cutting off the breast of a wet nurse who switched the child entrusted to her for another; in the loss of the tongue that denied father or mother (in Elamite contracts, the same penalty was inflicted for perjury); in the loss of the eye that pried into forbidden secrets. The loss of the surgeon's hand that caused loss of life or limb, or the brander's hand that obliterated a slave's identification mark, are very similar. The slave who struck a freeman or denied his master lost an ear, the organ of hearing and symbol of obedience. A person who brought another into danger of death by false accusation was punished by death. A perjurer was punished by the same penalty the perjurer sought to bring upon another.

The death penalty was freely rendered for theft and other crimes in this section of the Code: for theft involving entering a palace or temple treasury, for illegal purchase from a minor or slave, for selling stolen goods or receiving the same, for common theft in the open (in lieu of multiple-fold restoration) or receiving the same, for false claim to goods, for kidnapping, for assisting or harbouring fugitive slaves, for detaining or appropriating the same, for brigandage, for fraudulent sale of drink, for not reporting criminal conspiracy in one's tavern, for delegation of personal service and refusing to pay the delegate or not sending the delegate, for misappropriating the levy, for harming or robbing one of the king's captains, for causing the death of a house owner through bad construction. The manner of death is not specified for these cases.

This death penalty was also set for conduct that placed another in danger of death. The form of death penalty was specified for the following cases: gibbeting: for burglary (on the spot where crime was committed), later also for encroaching on the king's highway, for getting a slave-brand obliterated, for procuring a husband's death; burning: for incest with own mother, for a vestal entering or opening a tavern, for looting a house on fire (thrown into the fire); drowning: for adultery, rape of a betrothed maiden, bigamy, bad conduct as a wife, seduction of a daughter-in-law.

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

Contracts naturally do not usually touch on criminal matters as the above, 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 executioner 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. Permanent deprivation of office fell upon the corrupt judge. Enslavement befell the extravagant wife and unfilial children. Imprisonment was common, but is not mentioned in the Code.

The commonest of all penalties was a fine. This is awarded by the Code for corporal injuries to a mushkenu or to a slave (paid to his master), for damages done to property, or 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, or even thirtyfold, according to the enormity of the offence.

The Code recognized the importance of intent. 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 that 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 free. In ordinary cases, a person was not responsible for accident or if they excersized 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 unskillful 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 by half his value; a veterinary surgeon who caused the death of an ox or donkey 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 evidence. Suspicion was not enough. The criminal must be taken in the act, e.g. the adulterer, 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 proferred his own plea. There is no trace of professional advocates, but the plea had to be in writing, and the notary doubtlessly 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 subpoena, specifying a time for up to six months. Pledges might be made 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 were usually witnessed by one judge and twelve elders.

Parties and witnesses were put on oath. The penalty for false witness was usually the punishment that would have been awarded the victim if convicted. In matters beyond human knowledge, such as the guilt or innocence of an alleged practitioner of magic 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 taking an oath if the only knowledge available was his own. The plaintiff could swear to his loss by brigands, 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 affidavit of the witnesses to it and then issue an order that whenever found, it should be submitted. The clay tablets of contracts that were annulled were broken. The court might even travel to view the property and take with them the sacred symbols with which oaths were made.

Court decisions were set 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, included in the document, to observe its stipulations. Each party received a copy, and one was kept 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., that 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".