Again, everyone in the community is practically at the mercy of the housebuilder, and accordingly any damage caused by the use of faulty materials or bad workmanship, had to be made good by the builder. If the house collapsed and the owner was killed, the builder was put to death, while if the owner’s son or servant was killed, the son or servant of the builder was similarly put to death, in accordance with the primitive law of retaliation. House-tenure in the time of Khammurabi was generally on the repairing-lease system, the tenant being required to leave the house in the same condition in which he found it, while it was customary to pay rent half-yearly instead of quarterly, the rent being paid in advance.
The ultimate sanction and enforcement of these various laws concerning the relationship subsisting between capitalist and workman, owner and hirer, and landlord and tenant, was to be found in the courts. Strange to say, the chief scene of jurisdiction was the temple, the god himself adjudicating through the mediumship of his earthly plenipotentiaries. The precise form of legal procedure in the time of Khammurabi is not known, but certain facts in regard to the institution and conduct of suits have been elucidated.
One great difference between law-suits in the time of Khammurabi and those of our own day was that the cases were not apparently conducted by counsel, but by the parties themselves, an arrangement which must have considerably accrued to the advantage of the abler of the two suitors. The more important cases were heard by a bench of judges somewhat resembling our Court of Appeal, while the minor suits were heard by a single judge, as in our High Courts and County Courts. The plea had to be set down in writing in the form of an “affidavit”; whether the defendant was able to file a counter-affidavit does not seem quite clear. At the trial itself the plaintiff and defendant both summoned their witnesses, and the judgment was signed by both parties. Appeal to a higher court was the only remedy for the loser of the suit, the judge in the lower court not being allowed to hear the same case a second time under pain of being struck off the list, and at the same time mulcted for twelve times the amount of the fine he had previously ordered, or the damages he had assessed.
The date of the trial was fixed by the judge, but it had to be within six months of the filing of the affidavit. This time was allowed in order to enable the plaintiff to procure his witnesses in the event of their being absent from home. The appointment of the judges, or at least of some of them, was vested in the crown; whether they were paid or not is a matter of doubt. Sometimes judgeships were hereditary. But whether judges received fees or not they appear to have been regarded as professional men and retained their title even after they had ceased to exercise their judicial functions. The supreme judge was the king himself, to whom cases of primary importance were occasionally referred, while the principal officers of state often acted as judges.
The following crimes were capital offences, though the precise form in which the death sentence was to be carried out is not always quite clear:—a false accusation of witchcraft; perjury on the part of a witness in a capital case; burglary of a temple, palace, or private house; kidnapping a free-born child; highway robbery; theft of the goods of a man whose house is on fire; adultery; various forms of incest; rape of a betrothed maiden; persuading a slave to flee from his master, or being an accessory after the fact by harbouring him; various forms of theft and fraud; and building a house so badly that it collapsed and thereby killed the owner. The penalty of death appears to have been inflicted either by burning, impalement, dismemberment, or drowning.
Criminal offences of a less serious character were treated differently. Among the penalties enumerated in the code, mutilation, branding and scourging are the most barbarous. Mutilation was a punishment based logically on the “eye for an eye,” and “tooth for a tooth” principle, its application being primarily to those who had mutilated their neighbour. But its application was extended to cover other forms of crime or offences adjudged in those days as crimes, thus insolence on the part of an adopted child to his foster-parents was effectually stopped by the removal of the child’s tongue; while an adopted son who is unduly inquisitive into the origin of his birth has his eye plucked out; lastly—and what perhaps to us seems the most amazing of all—if a surgeon performed an operation and the patient died through any carelessness or lack of skill on his part, the surgeon’s hands were amputated—a law which must have considerably cooled the ardour of any of the surgeons of those days particularly addicted to the use of the knife. Branding was the outward and visible sign (usually imprinted on the arm) of degradation to slavery,—the punishment for slandering a votary or a married woman. Scourging was the penalty for striking a superior; the scourging was to be performed in public, the strokes numbering sixty, and the implement used a cow-hide whip; while banishment from the city was the very fitting and meet punishment for incest.
2. RELIGION
The one outstanding feature of the Babylonian religion of Khammurabi’s time was the unique position assigned to Marduk in the Babylonian pantheon. Marduk owed his exaltation to what we may without undue levity call local interest. The dynasty of which Khammurabi was so illustrious a monarch was the first dynasty of the city of Babylon itself; and Marduk the local god of Babylon naturally shared in the good fortune and prosperity of the people over whose welfare he presided. To Marduk belonged the real credit, honour and glory of his people’s success, what wonder then that he should be accorded the post of honour in the hierarchy of heaven! Other gods indeed existed, and received such attention as befitted their inferior position, but their light was as that of a planet compared with the dazzling radiance of the midday sun, while a monotheistic tendency sprang up, fostered by a desire to attribute to Marduk such marvellous performances as the creation of the world, performances which had hitherto been ascribed to the older gods of Southern Mesopotamia.
But reverence and respect for the traditions of a heroic past precluded the possibility of dishonouring the gods who had made that past so glorious, and the only way to satisfy the religious aspirations of Marduk’s devotees on the one hand, and maintain the loyalty due to the time-honoured gods of Babylonian infancy on the other, was to identify the latter with Marduk; had this process of identification been carried to its logical conclusion it would have resulted in the evolution of a monotheism as exclusive and as simple as the most dogmatic Unitarianism of to-day.