It seems best to consider legal usages first, because they are essential to the understanding of all others. When we have a simple contract between two parties we do not at once see where the reference to the law comes in. But [pg 081] the contract was not valid unless sealed and witnessed. The sealing was accompanied by an oath. The oath probably had to be made in court. The witnesses seem often to have been a body of men who could only be found at the court. Even when there is least trace of the law and the judge, the case is similar to others where the judge appears explicitly. It is also worthy of remark that, partly owing to our possession of the Code and partly owing to the fuller nature of the legal decisions, we know far more of this subject, as of many others, in the early periods than in the later. Hence the discussion of early legal usage is unusually full. When the evidence from later times merely supports this, it will not be noticed. Only divergences are worthy of record. As a rule, the procedure changes very little for many centuries.
Judges not often mentioned
1. Judges. The references to judges are less numerous than one would expect in the Code. But it seems probable that the sentences there laid down had to be pronounced by the judge, if not carried out by him. We are, however, still in complete ignorance as to the machinery of police administration. We may argue from analogy in other countries and ages, but this is not a theoretical treatise on comparative sociology. We must content ourselves with direct evidence.
Their varied duties
Some sections deal explicitly with the duties of a judge. Thus,[80] if a judge had given a judgment, decided the case, and embodied it in a legal decision, he was subjected to severe penalties for afterwards revoking his decision. If he had inflicted a penalty, he had now to repay it twelvefold to him from whom it was exacted. Further he was to be publicly deposed from his office, expelled from his seat of judgment, kussû daianûtišu, and no longer be permitted to sit with the judges. It is, of course, assumed that when [pg 082] he was called to account he could not justify his former judgment, or else could not justify the change. But, as the law reads, it seems simply calculated to render a judgment, once pronounced, irrevocable,—at any rate, for that judge. Probably its revocation, in the case of injustice, was provided for by the right of appeal.
He had to consider the words of the witnesses, amâtišunu amâru, literally, “to see their words,” perhaps implying that the depositions were written, but there are instances where amâru simply means “to consider.”[81]
In a criminal case, where a man had to produce witnesses to save his life from a death-sentence, the judge might grant him six months' grace in which to produce his witnesses.[82] In later times we have many examples of such a stay of process that evidence might be produced.[83]
Special directions to judges
Special directions are also given to a judge as to his procedure, when a father was minded to disinherit his son; or, when a widow with a young family wished to marry again.[84] A slanderer was summoned before the judge,[85] a son could not be cut off without referring the case to a judge,[86] the children who wished to turn their widowed mother out of her house had to appear before a judge.[87]
Position, rank, and qualifications