Their jury duties
Sometimes they are associated with the judges in such a way as to show that they were assessors.[95] They included judges sometimes, at any rate “this witness” is attached to a list of names which included a nâgiru of Babylon, a judge, and other high officials.[96] In the time of Nûr-Adadi they sent a case before the king.[97] They actually gave judgment.[98] We may regard them as a jury, especially a grand jury, qualified by their own knowledge to understand the rights of the case and to judge of evidence. The judge gave the sentence.
Trial witnesses
Secondly, we may distinguish the witnesses examined on oath. It is not clear that these were called by the same name. In the Code we read of šîbi mûdi, “the witnesses that know,” who seem to resemble very closely the Greek Histores. These, of course, were usually not on the jury. They testified, and were chosen by the parties to the suit. But the judge might examine persons who, in his opinion, would know. He selected and sent for them, directing the parties whom to produce. He might even adjourn the case for the production of witnesses.[99]
Witnesses to deeds
Thirdly, we may distinguish the witnesses to a document. Very often we can discern that these had an interest in the case. They might be relatives of the parties, neighbors of the estate in question, officials whose rights were concerned. In later times they received the special name of mukinnu, “the establishers.” They may be presumed to have known at least the general purport of the deed which they witnessed. When the deed was called in question, they would be cited to state what they knew. In the case of legal decisions, both judges and jury occur as witnesses in this sense. Hence, in a great many cases the distinctions drawn [pg 087] above do not hold. Whether the term šîbu was ever applied to the third class is doubtful. Their names are usually preceded by the sign which means “before,” however it was read.
Settlements out of court
4. Cases of dispute settled out of court.—When parties disagreed, they might discuss their difference between themselves and arrive at an agreement. Then they procured a scribe, who embodied the agreement in a binding compact, duppu lâ ragâmi. This took the form of a contract, the parties mutually undertaking not to withdraw from the agreement, re-open the dispute, or bring legal action, one against the other. To give sanction to this agreement, they swore by the gods and the king. Witnesses were called upon to be cognizant of and attest the contract; and their names were added to the contract. To authenticate their names both parties and witnesses often impressed their seals or, in default of seals, made a nail-mark. The date was then added. Each party seems to have taken a copy of the agreement and the scribe held a third, or deposited it in the archives. Such cases may be said to have been settled “out of court.” At any rate they contain no reference to a judge, or court. But it is possible that the administration of the oath was a judicial, or perhaps a sacerdotal function. Further, the witnesses may have been drawn from a body of men held in readiness at court to perform that function. It is certain in some cases, that agreements arrived at independently were taken to a judge for confirmation,[100] and the Code expressly directs some cases to be taken to a judge. But it is probable that many cases were settled by mutual agreement.
Recourse to a judge
When the intervention of a judge was deemed essential, one of the parties “complained.” The word really means to “cry out,” “protest”; but it is used in the freest way as [pg 088] equivalent to bringing the action. There is no evidence that anyone then submitted to wrong “under protest.” Whether the people were naturally litigious, or simply because access to the courts was so easy, a protest usually involved a suit.