Part II

Coming now to the code itself, it may be useful to give some illustrations of its provisions as a further means of grasping the spirit in which legislation in Babylonia was conceived. I have already referred to the survival in the code of the ancient ordeal as a punishment and as a test. After announcing in the first paragraph that the false accuser shall be put to death, it provides that if the accusation is sorcery, the one so charged shall be immersed in a stream.

If, as the phrase runs, "the river (spoken of as the river god) holds him in his grasp", i.e., if he sinks and is drowned, his guilt is established and the accuser obtains possession of the sorcerer's property; if, however, the river deity acquits him, i.e., if he does not drown, the one accused obtains possession of the property of his accuser, Now nothing could conceivably be more primitive, and from the point of view of modern justice more absurd.

The stipulations, however, well illustrate the ancient point of view that all decisions in cases of doubt rest with the gods. The contestants bring their suit before the deity, who through a sign or an oracle renders a verdict, ^[1] and as a survival of such beginnings of legal procedure, the custom continues to prevail till the latest days in Babylonia to have the court of justice within the temple or the temple precinct, and to have priests as the representatives of the deity to act as the judges, though, as we shall see, not exclusively.

The circumstance that the accuser shall receive the property of the accused in case the latter 's guilt is established, and that the former shall forfeit his own property in case of a false accusation, also shows a point of view totally different from the principles upon which our ideas of justice rest.

A fine or compensation for a false accusation seems reasonable, but that the accuser should receive a reward for an accusation which turns out to be correct reveals social conditions that antedate the existence of rational equity. There is an advance to a higher stage in the third paragraph which provides that he who bears false witness or who cannot prove his testimony in a criminal case involving life or death, shall himself incur the death penalty. Here the principle underlying the lex talionis comes into play.

Since the testimony, if established, would lead to the death of the accused as a punishment, the false witness and he who cannot prove his testimony falls within that category should receive the punishment which is involved in the testimony itself. The application of the same principle leads to the further statute, that if the case is a civil suit involving as the phrase runs "grain or money", or as we say merchandise or currency, the penalty imposed in case the testimony is correct falls on him who has borne false testimony, or who cannot prove that to which he testifies.

A fifth paragraph which concludes the section of the code devoted to what we may call general legal procedure tells us that the judge who renders a decision duly attested and sealed and then changes the decision shall himself be called to account in court, fined to the amount of twelve times the sum involved and expelled by a popular assembly from his "judgment seat", that is, deprived forever of his judicial functions.

Since a deity cannot make a false decision, it follows that a judge who does so does not represent a deity. Such a person is a fraud practically an inconceivable contingency, and therefore the code merely provides for the conceivable case that a judge changes his decision. Since a deity cannot in the nature of the case do so an oracle being both the first and the last resort the judge who is guilty of this misdemeanor logically forfeits his claim to act as the representative of a deity. It is from this point of view that the statute with its severe punishment must be considered. The appeal, which in modern law is considered in many instances the privilege of the accused or of the loser in a suit, is thus precluded by the very nature of a decision as conceived by the Babylonian spirit. The law as an "oracle", is infallible ; hence the judge, too, must be infallible.

Footnotes and references:

[1]:

In the Book of the Covenant the oldest of the Pentateuchal codes the phrase to have a lawsuit still runs "to bring before god" (Ex. 21, 6).