Laws And Contracts (part 1)

I. The Earliest Babylonian Laws

Nature of the oldest Babylonian laws

We are still completely in the dark as to the rise of law in Babylonia. As far back as we can trace the history or its written monuments, there is no time of which we can say, “As yet there was no law.” Our chief object to-day is to discover what the law was. For the most part, and until lately, we were compelled almost entirely to infer this from such contracts as were drawn up between parties and sworn to, witnessed, and sealed. Among them were a large number of legal decisions which recorded the ruling of some judicial functionary on points of law submitted to him. These and the hints given by the legal phrase-books had allowed us to attain considerable knowledge of what was legal and right in ancient Babylonia or Assyria.

Data hitherto uncertain

But the question remained, Was it “right” or “law”? Were there enactments by authority, making clear what was right, and in some cases creating right, where there was none before? There was much to suggest the existence of enacted law, even of a code of laws, and the word “law” had been freely applied. But there was no known ascription of any law to a definite legislator. There was no word for “law,” only the terms “judgments,” “right,” and “wrong.” It was significant that the parties to a suit always seemed to have agreed on what was right between man and man, and then to have sworn by their gods to observe the “right.”

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Evidence that there were very ancient codes

We definitely know of one great code of laws, that of Ḥammurabi, and we are greatly strengthened in the view that there were laws, and even codes, centuries before him. The way in which contracts quote the phrases of his code is exactly parallel to the way in which far earlier contracts quote phrases which are evidently extracts, in the phrase-books, from some connected work. Hence we are warranted in thinking that these extracts come from a Sumerian code of laws. We do not yet know to whom we should ascribe its compilation.

Codes antecedent to that of Ḥammurabi

For the Code of Ḥammurabi is also a compilation. He did not invent his laws. Phrases found in them appear in contracts before his time. Doubtless he did enact some fresh laws. But he built for the most part on other men's foundations. The decisions already passed by the judges had made men ready to accept as “right” what was now made “law.” But the question is only carried back a stage further. Did not those judges decide according to law? In some cases we know they did, for we have the law before them. When we try to penetrate further into the background of history we can only surmise. Documents fail us to prove whether judges first made or administered the law. But we have now a very high antiquity for laws recognized and obeyed as right.

Sumerian laws found in the phrase-books

That laws were already enacted in the pre-Semitic or Sumerian days we may regard as certain. The legal phrase-books drawn up by later scribes, especially those known as forming the series called ana ittišu, give as specimens certain laws. These were evidently given by the scribes as examples of connected prose in Sumerian, accompanied by a rendering into Semitic. Their object was primarily grammatical, or at any rate educational; but they are most valuable because they contain specimens of the Sumerian legislation. Owing to their limited scope they were at first regarded as [pg 041] family laws. But there can be little doubt that they really are extracts from something like a code of laws. We are as yet quite ignorant of the date of their first promulgation, place of origin, and legislator. The seventh tablet of the series ana ittišu, Col. III. l. 22 to Col. IV. l. 22, gives the seven following laws:

Repudiation of father by son

I. If a son has said to his father, “You are not my father,” he may brand him, lay fetters upon him, and sell him.

It may be doubted whether this applies to any but adopted sons. “You shall not be my father” is a possible rendering. But the phrase may only refer to rebellious conduct. The word rendered “brand” has often been taken to mean “shave.” The cutting short of the hair was a mark of degradation. The Semitic Babylonians wore their hair long, while slaves, and perhaps also Sumerians as a race, are represented as hairless. However that may be, the same word is used of “branding” cattle and it implies cutting or incision. It may mean a tattooed mark. The word rendered “fetter” seems also to be used of a branded body-mark. The whole law means that the rebellious son is to be degraded to the status of a slave and treated as such.

Repudiation of mother by son

II. If a son has said to his mother, “You are not my mother,” one shall brand his forehead, drive him out of the city, and make him go out of the house.

Here the same ambiguity about branding is found. Some take the word rendered “forehead” to mean the hair of the head. His head would then be shaved. “To go out from the house” means “to be cut off from kith and kin.” But here the son retains his freedom, only he is an exile and homeless. In this case it is not the mother who exacts the penalty. The verb is plural and may be taken impersonally. The family or the city magistrates are probably the ones to execute the law.

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Disinheritance of son by father

III. If a father has said to his son, “You are not my son,” he shall leave house and yard.

Here the father has power to repudiate a son, who must go. The word for “leave” is literally “take himself up,” “go up out of.” The word “yard” is simply “inclosure” and may mean the city walls, as a symbol of shelter.

Disinheritance of son by mother

IV. If a mother has said to her son, “You are not my son,” he shall leave house and property.

Here we expect, by analogy with Laws I. and II., that this penalty is rather less than that in III. The “property” means “house furniture.” The son must leave home and can take no house furniture with him. He has no claim to inherit anything. But he need not leave the city. Hence it seems likely that III. denied him the right of city shelter.

Repudiation of husband by wife

V. If a wife hates her husband and has said, “You are not my husband,” one shall throw her into the river.

Repudiation of wife by husband

VI. If a husband has said to his wife, “You are not my wife,” he shall pay half a mina of silver.

The contrast in the penalties is startling. Note the impersonal form of V. The executioners here are the family, or city, not the husband. Publicity is therefore implied. It is not a private quarrel, but a refusal of conjugal rights. In the second case the man divorces, or puts away, his wife, but pays a heavy fine.

Responsibility of employer

VII. If a man has hired a slave and he dies, is lost, has fled, has been incapacitated, or has fallen sick, he shall measure out 10 ḲA of corn per diem as his wages.

Here the Sumerian text differs from the Semitic. In the former the employer is said to “cause” the slave to suffer these detriments, in the latter he is said to come by them. The verb rendered “lost” is used in that sense in the later Code of Ḥammurabi. What is the exact sense of the verb rendered “has been incapacitated” is not clear. Professor [pg 043] Hommel renders durchbrennen, Delitzsch renders weichen, entweichen, oder zu arbeiten aufhören. But it is clear that the employer is to pay a daily fine for injury done to the slave, or for loss to his owner, caused or connived at by him. The slave's refusal to work could not be made the ground for fining him. If anyone paid for that it would be the owner. The employer pays for his work, but is bound to keep him safe and treat him reasonably well and return him in good condition to his owner. In later times the owner often took the risk of death and flight, but then he probably charged more hire. At any rate it is clear that the owner is not named in this law.

It is not profitable to discuss these mere fragments of a code. The most interesting thing is their existence. We may one day recover the Code in full. These are not retranslations into Sumerian, by learned scribes, of late laws. For exactly these words and phrases occur in the contracts of the First Dynasty of Babylon, before and after the Code of Ḥammurabi, which deals with the same cases, but in different words. In fact, this Sumerian Code is quoted, as the later Code was quoted, in documents which embody the sworn agreement of the parties to observe the section of the Code applying to their case. This is indeed the characteristic of the early contracts: after indicating the particulars of the case, an oath is added to the effect that the parties will abide by the law concerning it. Even where no reference is made to a law, it is because either no law had been promulgated on the point, or because the law was understood too well to need mention. Later this law-abiding spirit was less in evidence and the contract became a private undertaking to carry out mutual engagements. But even then it was assumed that a law existed which would hold the parties to the terms of an engagement voluntarily contracted.

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II. The Code Of Ḥammurabi

Witchcraft and the ordeal by water

§ 1. If a man has accused another of laying a nêrtu (death spell?) upon him, but has not proved it, he shall be put to death.

§ 2. If a man has accused another of laying a kišpu (spell) upon him, but has not proved it, the accused shall go to the sacred river, he shall plunge into the sacred river, and if the sacred river shall conquer him, he that accused him shall take possession of his house. If the sacred river shall show his innocence and he is saved, his accuser shall be put to death. He that plunged into the sacred river shall appropriate the house of him that accused him.

False witness in capital suit

§ 3. If a man has borne false witness in a trial, or has not established the statement that he has made, if that case be a capital trial, that man shall be put to death.

In civil case

§ 4. If he has borne false witness in a civil law case, he shall pay the damages in that suit.

Judgment once given not to be altered

§ 5. If a judge has given a verdict, rendered a decision, granted a written judgment, and afterward has altered his judgment, that judge shall be prosecuted for altering the judgment he gave and shall pay twelvefold the penalty laid down in that judgment. Further, he shall be publicly expelled from his judgment-seat and shall not return nor take his seat with the judges at a trial.

Burglary and acceptance of stolen goods

§ 6. If a man has stolen goods from a temple, or house, he shall be put to death; and he that has received the stolen property from him shall be put to death.

Dealings with irresponsible persons

§ 7. If a man has bought or received on deposit from a minor or a slave, either silver, gold, male or female slave, ox, ass, or sheep, or anything else, except by consent of elders, or power of attorney, he shall be put to death for theft.

Theft

§ 8. If a patrician has stolen ox, sheep, ass, pig, or ship, whether from a temple, or a house, he shall pay thirtyfold. If he be a [pg 045] plebeian, he shall return tenfold. If the thief cannot pay, he shall be put to death.

Procedure in case of the discovery of lost property

§ 9. If a man has lost property and some of it be detected in the possession of another, and the holder has said, “A man sold it to me, I bought it in the presence of witnesses”; and if the claimant has said, “I can bring witnesses who know it to be property lost by me”; then the alleged buyer on his part shall produce the man who sold it to him and the witnesses before whom he bought it; the claimant shall on his part produce the witnesses who know it to be his lost property. The judge shall examine their pleas. The witnesses to the sale and the witnesses who identify the lost property shall state on oath what they know. Such a seller is the thief and shall be put to death. The owner of the lost property shall recover his lost property. The buyer shall recoup himself from the seller's estate.

§ 10. If the alleged buyer on his part has not produced the seller or the witnesses before whom the sale took place, but the owner of the lost property on his part has produced the witnesses who identify it as his, then the [pretended] buyer is the thief; he shall be put to death. The owner of the lost property shall take his lost property.

§ 11. If, on the other hand, the claimant of the lost property has not brought the witnesses that know his lost property, he has been guilty of slander, he has stirred up strife, he shall be put to death.

§ 12. If the seller has in the meantime died, the buyer shall take from his estate fivefold the value sued for.

Judgment by default

§ 13. If a man has not his witnesses at hand, the judge shall set him a fixed time not exceeding six months, and if within six months he has not produced his witnesses, the man has lied; he shall bear the penalty of the suit.

Kidnapping

§ 14. If a man has stolen a child, he shall be put to death.

Abduction of slave

§ 15. If a man has induced either a male or female slave from the house of a patrician, or plebeian, to leave the city, he shall be put to death.

Harboring a fugitive slave

§ 16. If a man has harbored in his house a male or female slave from a patrician's or plebeian's house, and has not caused the fugitive to leave on the demand of the officer over the slaves condemned to public forced labor, that householder shall be put to death.

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The capture of a fugitive slave

§ 17. If a man has caught either a male or female runaway slave in the open field and has brought him back to his owner, the owner of the slave shall give him two shekels of silver.

§ 18. If such a slave will not name his owner, his captor shall bring him to the palace, where he shall be examined as to his past and returned to his owner.

§ 19. If the captor has secreted that slave in his house and afterward that slave has been caught in his possession, he shall be put to death.

§ 20. If the slave has fled from the hands of his captor, the latter shall swear to the owner of the slave and he shall be free from blame.

Burglary

§ 21. If a man has broken into a house he shall be killed before the breach and buried there.

Highway robbery

§ 22. If a man has committed highway robbery and has been caught, that man shall be put to death.

§ 23. If the highwayman has not been caught, the man that has been robbed shall state on oath what he has lost and the city or district governor in whose territory or district the robbery took place shall restore to him what he has lost.

§ 24. If a life [has been lost], the city or district governor shall pay one mina of silver to the deceased's relatives.

Theft at a fire

§ 25. If a fire has broken out in a man's house and one who has come to put it out has coveted the property of the householder and appropriated any of it, that man shall be cast into the self-same fire.

Duties and privileges of an officer over the levy

§ 26. If a levy-master, or warrant-officer, who has been detailed on the king's service, has not gone, or has hired a substitute in his place, that levy-master, or warrant-officer, shall be put to death and the hired substitute shall take his office.

§ 27. If a levy-master, or warrant-officer, has been assigned to garrison duty, and in his absence his field and garden have been given to another who has carried on his duty, when the absentee has returned and regained his city, his field and garden shall be given back to him and he shall resume his duty.

Rights and duties of his son

§ 28. If a levy-master, or warrant-officer, has been assigned to garrison duty, and has a son able to carry on his official duty, the field and garden shall be given to him and he shall carry on his father's duty.

§ 29. If the son be a child and is not able to carry on his father's duty, one-third of the field and garden shall be given to his mother to educate him.

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Penalty for neglect of his benefice

§ 30. If such an official has neglected the care of his field, garden, or house, and let them go to waste, and if another has taken his field, garden, or house, in his absence, and carried on the duty for three years, if the absentee has returned and would cultivate his field, garden, or house, it shall not be given him; he who has taken it and carried on the duty connected with it shall continue to do so.

§ 31. If for one year only he has let things go to waste and he has returned, his field, garden, and house shall be given him, and he himself shall carry on his duty.

His ransom, if captured

§ 32. If such an official has been assigned to the king's service (and captured by the enemy) and has been ransomed by a merchant and helped to regain his city, if he has had means in his house to pay his ransom, he himself shall do so. If he has not had means of his own, he shall be ransomed by the temple treasury. If there has not been means in the temple treasury of his city, the state will ransom him. His field, garden, or house shall not be given for his ransom.

Duties of district governors

§ 33. If either a governor or a prefect has appropriated to his own use the corvée, or has accepted and sent on the king's service a hired substitute in his place, that governor, or prefect, shall be put to death.

Governors not to oppress subordinates

§ 34. If either a governor, or a prefect, has appropriated the property of a levy-master, has hired him out, has robbed him by high-handedness at a trial, has taken the salary which the king gave to him, that governor, or prefect, shall be put to death.

The benefice of a levy-master, warrant-officer, or tributary inalienable

§ 35. If a man has bought from a levy-master the sheep, or oxen, which the king gave him, he shall lose his money.

§ 36. The field, garden, or house, of a levy-master, warrant-officer, or tributary shall not be sold.

§ 37. If a man has bought field, garden, or house, of a levy-master, a warrant-officer, or tributary, his title-deed shall be destroyed and he shall lose his money. He shall return the field, garden, or house to its owner.

Not to be bequeathed to his family

§ 38. A levy-master, warrant-officer, or tributary, shall not bequeath anything from the field, garden, or house of his benefice to his wife or daughter, nor shall he give it for his debt.

§ 39. From the field, garden, or house which he has bought and acquired, he shall make bequests to his wife, or daughter, or shall assign for his debt.

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The obligation resting upon a buyer of real estate

§ 40. A votary, merchant, or resident alien may sell his field, garden, or house, and the buyer shall discharge the public service connected with the field, garden, or house that he has bought.

A benefice not to be exchanged

§ 41. If a man has given property in exchange for the field, garden, or house, of a levy-master, warrant-officer, or tributary, such an official shall return to his field, garden, or house, and he shall appropriate the property given in exchange.

Responsibilities of land-tenants

§ 42. If a man has hired a field to cultivate and has caused no corn to grow on the field, he shall be held responsible for not doing the work on the field and shall pay an average rent.

§ 43. If he has not cultivated the field and has left it alone, he shall give to the owner of the field an average rent, and the field which he has neglected he shall break up with mattocks and plough it, and shall return it to the owner of the field.

The rent of unbroken land

§ 44. If a man has taken a piece of virgin soil to open up, on a three years' lease, but has left it alone, has not opened up the land, in the fourth year he shall break it up, hoe it, and plough it, and shall return it to the owner of the field, and shall measure out ten GUR of corn for each GAN of land.

Loss of crop by storm apportioned between landlord and tenant

§ 45. If a man has let his field to a farmer and has received his rent for the field but afterward the field has been flooded by rain, or a storm has carried off the crop, the loss shall be the farmer's.

§ 46. If he has not received the rent of his field, whether he let it for a half, or for a third, of the crop, the farmer and the owner of the field shall share the corn that is left in the field, according to their agreement.

Landlord cannot restrain a satisfactory tenant from subletting

§ 47. If a tenant farmer, because he did not start farming in the early part of the year, has sublet the field, the owner of the field shall not object; his field has been cultivated; at harvest-time he shall take rent, according to his agreement.

Abatement of debt on account of storm, flood, or drought

§ 48. If a man has incurred a debt and a storm has flooded his field or carried away the crop, or the corn has not grown because of drought, in that year he shall not pay his creditor. Further, he shall post-date his bond and shall not pay interest for that year.

Rights in a crop pledged for debt

§ 49. If a man has received money from a merchant and has given to the merchant a field, planted with corn, or sesame, and has said to him, “Cultivate the field and reap and take the corn, or sesame, that shall be grown”; if the bailiff has reared corn, or sesame, in the field, at harvest-time the owner of the field shall take what corn, or [pg 049] sesame, has been grown in the field and shall pay corn to the merchant for his money that he took of him and its interest, and for the maintenance of the bailiff.

§ 50. If the field he gave was [already] cultivated, or the sesame was grown up, the owner of the field shall take the corn, or sesame, that has been grown in the field, and shall return the money and its interest to the merchant.

§ 51. If he has not money enough, he shall give to the merchant sesame, or corn, according to its market price, for the money which he took from the merchant and its interest, according to the king's standard.

§ 52. If the bailiff has not reared corn or sesame in the field the debtor's obligation shall not be lessened.

Riparian responsibilities

§§ 53, 54. If a man has neglected to strengthen his dike and has not kept his dike strong, and a breach has broken out in his dike, and the waters have flooded the meadow, the man in whose dike the breach has broken out shall restore the corn he has caused to be lost. . If he be not able to restore the corn, he and his goods shall be sold, and the owners of the meadow whose corn the water has carried away shall share the money.

Penalty for neglect to shut off water

§ 55. If a man has opened his runnel for watering and has left it open, and the water has flooded his neighbor's field, he shall pay him an average crop.

§ 56. If a man has let out the waters and they flood the young plants in his neighbor's field, he shall measure out ten GUR of corn for each GAN of land.

Damage done to growing crop by sheep

§ 57. If a shepherd has not agreed with the owner of the field to allow his sheep to eat off the green crop and without consent of the owner has let his sheep feed off it, the owner of the field shall harvest his crop, but the shepherd who without consent of the owner of the field caused his sheep to eat it shall give to the owner of the field, over and above his crop, twenty GUR of corn for each GAN of land.

§ 58. If, after the sheep have come up out of the meadows and have passed into the common fold at the city gate, a shepherd has placed his sheep in a field and caused his sheep to feed in the field, the shepherd shall keep the field he has grazed, and, at harvest-time, he shall measure out to the owner sixty GUR of corn for each GAN of land.

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Cutting down a tree without permission

§ 59. If a man without the consent of the owner has cut down a tree in an orchard, he shall weigh out half a mina of silver.

Rent of a garden-plot

§§ 60, 61. If a man has given a field to a gardener to plant a garden and the gardener has planted the garden, he shall train the garden four years; in the fifth year the owner of the garden and the gardener shall share the garden equally, the owner of the garden shall gather his share and take it. . If the gardener, in planting the garden, has not planted all, but has left a bare patch, he shall reckon the bare patch in his share.

§ 62. If he has not planted the field which was given him as a garden; then, if it was arable land, the gardener shall measure out to the owner of the field an average rent for the years that were neglected, and shall perform the stipulated work on the field (i.e., make it into a garden), and return it to the owner of the field.

§ 63. If the land was uncultivated, he shall do the stipulated work on the field, and return to the owner of the field and shall measure out for each year ten GUR of corn for each GAN.

Garden rented on shares

§ 64. If a man has given his garden to a gardener to farm, the gardener, as long as he holds the garden, shall give the owner of the garden two-thirds of the produce of the garden and shall take one-third himself.

§ 65. If the gardener has not tilled the garden and has diminished the yield, the gardener shall pay an average rent.

Here came the five erased columns, of which the three following sections are restored from copies in Ashurbânipal's library:

Obligations of owner to gather a date-crop assigned for debt

§ X. [If a man has borrowed money of a merchant and has given a date grove] to the merchant and has said to him, “Take the dates that are in my grove for your money”; that merchant shall not consent, the owner of the grove shall take the dates that are in the grove and shall answer to the merchant for the money and its interest, according to the tenor of his agreement, and the owner of the grove shall take the surplus of the dates that are in the grove.

Eviction of house-tenant

§ Y. [If a man has let a house] and the tenant has paid to the owner of the house the full rent for a term of years, and if the owner of the house has ordered the tenant to leave before his time [pg 051] is up, the owner of the house, because he has ordered his tenant to leave before his time is up, [shall repay a proportionate amount] from what the tenant has paid him.

Acceptance of goods in payment of debt, in default of money or corn

§ Z. [If a man has borrowed money of a merchant] and has not corn or money wherewith [to pay], but has goods; whatever is in his hands, he shall give to the merchant, before the elders. The merchant shall not object; he shall receive it.

After the loss of about thirty-five sections the Code resumes:

Responsibility of a travelling salesman

§ 100. [If an agent has received money of a merchant, he shall write down the amount] and [what is to be] the interest of the money, and when his time is up, he shall settle with his merchant.

§ 101. If he has not had success on his travels, he shall return double what he received to the merchant.

Robbery, substantiated by oath, a valid excuse

§§ 102, 103. If the merchant has given money, as a speculation, to the agent, who during his travels has met with misfortune, he shall return the full sum to the merchant. . If, on his travels, an enemy has forced him to give up some of the goods he was carrying, the agent shall specify the amount on oath and shall be acquitted.

Responsibility to be indicated by legal receipts

§ 104. If a merchant has given to an agent corn, wool, oil, or any sort of goods, to traffic with, the agent shall write down the money value, and shall return that to the merchant. The agent shall then take a sealed receipt for the money that he has given to the merchant.

§ 105. If the agent forgets and has not taken a sealed receipt for the money he gave to the merchant, money that has not been acknowledged by receipt shall not be put down in the accounts.

Punishment of fraud of an agent

§ 106. If an agent has taken money of a merchant, and his principal suspects him, that principal shall prosecute his agent, put him on oath before the elders, as to the money taken; the agent shall pay to the merchant threefold what he misappropriated.

Fraud practiced by principal

§ 107. If the principal has overcharged the agent and the agent has [really] returned to his principal whatever his principal gave him, and if the principal has disputed what the agent has given him, that agent shall put his principal on oath before the elders, and the merchant, because he has defrauded the agent, shall pay to the agent sixfold what he misappropriated.

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Fraud in ordinary drink-traffic

§ 108. If the mistress of a beer-shop has not received corn as the price of beer or has demanded silver on an excessive scale, and has made the measure of beer less than the measure of corn, that beer-seller shall be prosecuted and drowned.

Connivance at unlawful assemblages

§ 109. If the mistress of a beer-shop has assembled seditious slanderers in her house and those seditious persons have not been captured and have not been haled to the palace, that beer-seller shall be put to death.

Drink-traffic forbidden to votaries

§ 110. If a votary, who is not living in the convent, open a beer-shop, or enter a beer-shop for drink, that woman shall be put to death.

Rate of payment with produce

§ 111. If the mistress of a beer-shop has given sixty ḲA of sakani beer in the time of thirst, at harvest, she shall take fifty ḲA of corn.

Carrier's liability for misappropriation of goods

§ 112. If a man staying abroad has given silver, gold, precious stones, or portable goods to another man to transport, and if that man has not delivered the consignment, where he has carried it, but has appropriated it, the owner of the consignment shall prosecute him, and the carrier shall give to the owner of the consignment fivefold whatever was intrusted to him.

Unauthorized seizure of goods denied a creditor

§ 113. If a man has a debt of corn, or money, due from another and without the consent of the owner of the corn has taken corn from the granary, or barn, the owner of the corn shall prosecute him for taking the corn from the granary, or barn, without his consent, and the man shall return all the corn he took, and further lose whatever it was that he had lent.

Punishment of vexatious distraint

§ 114. If a man has no debt of corn or money due from a man on whom he has levied a distraint, for each such distraint he shall pay one-third of a mina of silver.

Creditor responsible for fair treatment of a man held as security for debt

§ 115. If a man has corn or money due from another man and has levied a distraint and the hostage has died a natural death in the house of the creditor, he cannot be held responsible.

§ 116. If the hostage has died of blows or want in the house of the creditor, the owner of the hostage shall prosecute his creditor, and if the deceased were free born, the creditor's son shall be put to death; if a slave, the creditor shall pay one-third of a mina of silver, Further, he shall lose whatever it was that he lent.

Limitations on the holding of such hostages

§ 117. If a man owes a debt, and he has given his wife, his son, or his daughter [as hostage] for the money, or has handed someone over to work it off, the hostage shall do the work of the creditor's house; but in the fourth year he shall set them free.

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§ 118. If a debtor has handed over a male or female slave to work off a debt, and the creditor proceeds to sell same, no one can complain.

§ 119. If a man owes a debt, and he has assigned a maid who has borne him children for the money, the owner of the maid shall repay the money which the merchant gave him and shall ransom his maid.

Responsibility of owners of warehouses

§ 120. If a man has deposited his corn for safe keeping in another's house and it has suffered damage in the granary, or if the owner of the house has opened the store and taken the corn, or has disputed the amount of the corn that was stored in his house, the owner of the corn shall declare on oath the amount of his corn, and the owner of the house shall return him double.

Rate of payment for storage of corn

§ 121. If a man has stored corn in another man's house he shall give, on each GUR of corn, five ḲA of corn, yearly, as the rent for storage.

Receipt for deposit of valuables

§ 122. If a man has given another gold, silver, or any goods whatever, on deposit, all that he gives shall he show to witnesses, and take a bond and so give on deposit.

§ 123. If he has given on deposit without witnesses and bonds, and has been defrauded where he made his deposit, he has no claim to prosecute.

Responsibility of bankers

§ 124. If a man has given on deposit to another, before witnesses, gold, silver, or any goods whatever, and his claim has been contested, he shall prosecute that man, and [the man] shall return double what he disputed.

Their own losses no excuse

§ 125. If a man has given anything whatever on deposit, and, where he has made his deposit, something of his has been lost together with something belonging to the owner of the house, either by house-breaking or a rebellion, the owner of the house who is in default shall make good all that has been given him on deposit, which he has lost, and shall return it to the owner of the goods. The owner of the house shall look after what he has lost and recover it from the thief.

Depreciation of property

§ 126. If a man has said that something of his is lost, which is not lost, or has alleged a depreciation, though nothing of his is lost, he shall estimate the depreciation on oath, and he shall pay double whatever he has claimed.

Slander of votary or married woman

§ 127. If a man has caused the finger to be pointed at a votary, or a man's wife, and has not justified himself, that man shall be brought before the judges, and have his forehead branded.

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Marriage-bonds

§ 128. If a man has taken a wife and has not executed a marriage-contract, that woman is not a wife.

Punishment of flagrant adultery

§ 129. If a man's wife be caught lying with another, they shall be strangled and cast into the water. If the wife's husband would save his wife, the king can save his servant.

Rape of a betrothed virgin

§ 130. If a man has ravished another's betrothed wife, who is a virgin, while still living in her father's house, and has been caught in the act, that man shall be put to death; the woman shall go free.

Suspicion of adultery cleared by oath

§ 131. If a man's wife has been accused by her husband, and has not been caught lying with another, she shall swear her innocence, and return to her house.

Ordeal of water permissible to accused wife

§ 132. If a man's wife has the finger pointed at her on account of another, but has not been caught lying with him, for her husband's sake she shall plunge into the sacred river.

Rights and duties of the wives of those who have been taken captive in war

§ 133. If a man has been taken captive, and there was maintenance in his house, but his wife has left her house and entered into another man's house; because that woman has not preserved her body, and has entered into the house of another, that woman shall be prosecuted and shall be drowned.

§ 134. If a man has been taken captive, but there was not maintenance in his house, and his wife has entered into the house of another, that woman has no blame.

§ 135. If a man has been taken captive, but there was no maintenance in his house for his wife, and she has entered into the house of another, and has borne him children, if in the future her [first] husband shall return and regain his city, that woman shall return to her first husband, but the children shall follow their own father.

Right of a deserted wife to remarry

§ 136. If a man has left his city and fled, and, after he has gone, his wife has entered into the house of another; if the man return and seize his wife, the wife of the fugitive shall not return to her husband, because he hated his city and fled.

Rights of a divorced woman who has borne children

§ 137. If a man has determined to divorce a concubine who has borne him children, or a votary who has granted him children, he shall return to that woman her marriage-portion, and shall give her the usufruct of field, garden, and goods, to bring up her children. After her children have grown up, out of whatever is given to her children, they shall give her one son's share, and the husband of her choice shall marry her.

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Rights of a divorced woman who is childless

§ 138. If a man has divorced his wife, who has not borne him children, he shall pay over to her as much money as was given for her bride-price and the marriage-portion which she brought from her father's house, and so shall divorce her.

§ 139. If there was no bride-price, he shall give her one mina of silver, as a price of divorce.

§ 140. If he be a plebeian, he shall give her one-third of a mina of silver.

Status of a worthless wife

§ 141. If a man's wife, living in her husband's house, has persisted in going out, has acted the fool, has wasted her house, has belittled her husband, he shall prosecute her. If her husband has said, “I divorce her,” she shall go her way; he shall give her nothing as her price of divorce. If her husband has said, “I will not divorce her,” he may take another woman to wife; the wife shall live as a slave in her husband's house.

Status of a wife who repudiates her husband

§ 142. If a woman has hated her husband and has said, “You shall not possess me,” her past shall be inquired into, as to what she lacks. If she has been discreet, and has no vice, and her husband has gone out, and has greatly belittled her, that woman has no blame, she shall take her marriage-portion and go off to her father's house.

§ 143. If she has not been discreet, has gone out, ruined her house, belittled her husband, she shall be drowned.

Marriage with a votary

§ 144. If a man has married a votary, and that votary has given a maid to her husband, and so caused him to have children, and, if that man is inclined to marry a concubine, that man shall not be allowed to do so, he shall not marry a concubine.

§ 145. If a man has married a votary, and she has not granted him children, and he is determined to marry a concubine, that man shall marry the concubine, and bring her into his house, but the concubine shall not place herself on an equality with the votary.

A votary's rights against a maid assigned to her husband

§ 146. If a man has married a votary, and she has given a maid to her husband, and the maid has borne children, and if afterward that maid has placed herself on an equality with her mistress, because she has borne children, her mistress shall not sell her, she shall place a slave-mark upon her, and reckon her with the slave-girls.

§ 147. If she has not borne children, her mistress shall sell her.

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Status of a wife afflicted with a disease

§ 148. If a man has married a wife and a disease has seized her, if he is determined to marry a second wife, he shall marry her. He shall not divorce the wife whom the disease has seized. In the home they made together she shall dwell, and he shall maintain her as long as she lives.

§ 149. If that woman was not pleased to stay in her husband's house, he shall pay over to her the marriage-portion which she brought from her father's house, and she shall go away.

Wife's right to property deeded to her by her husband

§ 150. If a man has presented field, garden, house, or goods to his wife, has granted her a deed of gift, her children, after her husband's death, shall not dispute her right; the mother shall leave it after her death to that one of her children whom she loves best. She shall not leave it to her kindred.

Marital responsibility for ante-nuptial debts

§ 151. If a woman, who is living in a man's house, has persuaded her husband to bind himself, and grant her a deed to the effect that she shall not be held for debt by a creditor of her husband's; if that man had a debt upon him before he married that woman, his creditor shall not take his wife for it. Also, if that woman had a debt upon her before she entered that man's house, her creditor shall not take her husband for it.

§ 152. From the time that that woman entered into the man's house they together shall be liable for all debts subsequently incurred.

Connivance at husband's murder by a wife

§ 153. If a man's wife, for the sake of another, has caused her husband to be killed, that woman shall be impaled.

Incest with own daughter

§ 154. If a man has committed incest with his daughter, that man shall be banished from the city.

Incest with daughter-in-law

§ 155. If a man has betrothed a maiden to his son and his son has known her, and afterward the man has lain in her bosom, and been caught, that man shall be strangled and she shall be cast into the water.

§ 156. If a man has betrothed a maiden to his son, and his son has not known her, and that man has lain in her bosom, he shall pay her half a mina of silver, and shall pay over to her whatever she brought from her father's house, and the husband of her choice shall marry her.

Incest with mother

§ 157. If a man, after his father's death, has lain in the bosom of his mother, they shall both of them be burnt together.

Incest with step-mother

§ 158. If a man, after his father's death, be caught in the bosom of his step-mother, who has borne children, that man shall be cut off from his father's house.

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Penalty for breach of promise

§ 159. If a man, who has presented a gift to the house of his prospective father-in-law and has given the bride-price, has afterward looked upon another woman and has said to his father-in-law, “I will not marry your daughter”; the father of the girl shall keep whatever he has brought as a present.

Rights of a rejected suitor

§ 160. If a man has presented a gift to the house of his prospective father-in-law, and has given the bride-price, but the father of the girl has said, “I will not give you my daughter,” the father shall return double all that was presented him.

Slandering rival not to profit by his calumny

§ 161. If a man has brought a gift to the house of his prospective father-in-law, and has given the bride-price, but his comrade has slandered him and his father-in-law has said to the suitor, “You shall not marry my daughter,” [the father] shall return double all that was presented him. Further, the comrade shall not marry the girl.

Disposal of a wife's marriage-portion

§ 162. If a man has married a wife, and she has borne him children, and that woman has gone to her fate, her father shall lay no claim to her marriage-portion. Her marriage-portion is her children's only.

§ 163. If a man has married a wife, and she has not borne him children, and that woman has gone to her fate; if his father-in-law has returned to him the bride-price, which that man brought into the house of his father-in-law, her husband shall have no claim on the marriage-portion of that woman. Her marriage-portion indeed belongs to her father's house.

§ 164. If the father-in-law has not returned the bride-price, the husband shall deduct the amount of her bride-price from her marriage-portion, and shall return her marriage-portion to her father's house.

Effect upon the inheritance of a father's gift to a favorite son

§ 165. If a man has presented field, garden, or house to his son, the first in his eyes, and has written him a deed of gift; after the father has gone to his fate, when the brothers share, he shall keep the present his father gave him, and over and above shall share equally with them in the goods of his father's estate.

Reservation of a bride-price for a young unmarried brother

§ 166. If a man has taken wives for the other sons he had, but has not taken a wife for his young son, after the father has gone to his fate, when the brothers share, they shall set aside from the goods of their father's estate money, as a bride-price, for their young brother, who has not married a wife, over and above his share, and they shall cause him to take a wife.

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Inheritance of children in case of two fruitful marriages

§ 167. If a man has taken a wife, and she has borne him children and that woman has gone to her fate, and he has taken a second wife, and she also has borne children; after the father has gone to his fate, the sons shall not share according to mothers, but each family shall take the marriage-portion of its mother, and all shall share the goods of their father's estate equally.

Disinheritance of a son

§ 168. If a man has determined to disinherit his son and has declared before the judge, “I cut off my son,” the judge shall inquire into the son's past, and, if the son has not committed a grave misdemeanor such as should cut him off from sonship, the father shall disinherit his son.

§ 169. If he has committed a grave crime against his father, which cuts off from sonship, for the first offence he shall pardon him. If he has committed a grave crime a second time, the father shall cut off his son from sonship.

Status of children by a slave-woman

§ 170. If a man has had children borne to him by his wife, and also by a maid, if the father in his lifetime has said, “My sons,” to the children whom his maid bore him, and has reckoned them with the sons of his wife; then after the father has gone to his fate, the children of the wife and of the maid shall share equally. The children of the wife shall apportion the shares and make their own selections.

§ 171. And if the father, in his lifetime, has not said, “My sons,” to the children whom the maid bore him, after the father has gone to his fate, the children of the maid shall not share with the children of the wife in the goods of their father's house. The maid and her children, however, shall obtain their freedom. The children of the wife have no claim for service on the children of the maid.

The rights of a widow in personal property

The wife shall take her marriage-portion, and any gift that her husband has given her and for which he has written a deed of gift and she shall dwell in her husband's house; as long as she lives, she shall enjoy it, she shall not sell it. After her death it is indeed her children's.

§ 172. If her husband has not given her a gift, her marriage-portion shall be given her in full, and, from the goods of her husband's estate, she shall take a share equal to that of one son.

Her rights in the home

If her children have persecuted her in order to have her leave the house, and the judge has inquired into her past, and laid the blame on the children, that woman shall not leave her husband's house. If [pg 059] that woman has determined to leave, she shall relinquish to her children the gift her husband gave her, she shall take the marriage-portion of her father's estate, and the husband of her choice may marry her.

Dower rights of her children by second marriage

§ 173. If that woman, where she has gone, has borne children to her later husband, after that woman has died, the children of both marriages shall share her marriage-portion.

§ 174. If she has not borne children to her later husband, the children of her first husband shall take her marriage-portion.

Property rights of the children of slave-father and free mother

§ 175. If either a slave of a patrician, or of a plebeian, has married the daughter of a free man, and she has borne children, the owner of the slave shall have no claim for service on the children of a free woman. And if a slave, either of a patrician or of a plebeian, has married a free woman and when he married her she entered the slave's house with a marriage-portion from her father's estate, be he slave of a patrician or of a plebeian, and from the time that they started to keep house, they have acquired property; after the slave, whether of a patrician or of a plebeian, has gone to his fate, the free woman shall take her marriage-portion, and whatever her husband and she acquired, since they started house-keeping. She shall divide it into two portions. The master of the slave shall take one half, the other half the free woman shall take for her children.

§ 176. If the free woman had no marriage-portion, whatever her husband and she acquired since they started house-keeping he shall divide into two portions. The owner of the slave shall take one half, the other half the free woman shall take for her children.

Property rights of the young children of a widow who remarries

§ 177. If a widow, whose children are young, has determined to marry again, she shall not marry without consent of the judge. When she is allowed to remarry, the judge shall inquire as to what remains of the property of her former husband, and shall intrust the property of her former husband to that woman and her second husband. He shall give them an inventory. They shall watch over the property, and bring up the children. Not a utensil shall they sell. A buyer of any utensil belonging to the widow's children shall lose his money and shall return the article to its owners.

The property rights of a votary

§ 178. If a female votary, or vowed woman, has had given her by her father a portion, as for marriage, and he has written her a deed, and in the deed which he has written her he has not written that she may leave it as she pleases, and has not granted her all her [pg 060] desire; after her father has gone to his fate, her brothers shall take her field, or garden, and, according to the value of her share, shall give her corn, oil, and wool, and shall content her heart. If they do not give her corn, oil, and wool, according to the value of her share, and do not satisfy her, she shall let her field and garden to a farmer, whom she chooses, and the farmer shall support her. The field, garden, or whatever her father gave her, she shall enjoy, as long as she lives. She shall not sell it, nor mortgage it. The reversion of her inheritance indeed belongs to her brothers.

Her right to convey property

§ 179. If a female votary, or vowed woman, has had a portion given her by her father, and he has written her a deed, and in the deed that he has written her has [declared] that she may give it as she pleases, and has granted her all her desire; after her father has gone to his fate, she shall leave it as she pleases; her brothers shall make no claim against her.

Her right of inheritance

§ 180. If the father has not given a portion to his daughter, who is a female votary, or vowed woman; after her father has gone to his fate, she shall share in the property of her father's house, like any other child. As long as she lives, she shall enjoy her share; after her, it indeed belongs to her brothers.

Her proportion of her father's property

§ 181. If a father has vowed his daughter to a god, as a temple maid, or a virgin, and has given her no portion; after the father has gone to his fate, she shall share in the property of her father's estate, taking one-third of a child's share. She shall enjoy her share, as long as she lives. After her, it belongs to her brothers.

Additional privileges of votary of Marduk of Babylon

§ 182. If a father has not given a portion, as for marriage, to his daughter, a votary of Marduk of Babylon, and has not written her a deed; after her father has gone to his fate, she shall share with her brothers from the goods of her father's estate, taking one-third of a child's share. She shall not be subject to duty. The votary of Marduk shall leave it after her to whom she pleases.

Rights of a daughter by a concubine, if provided for by father on marriage

§ 183. If a father has given a portion, as for marriage, to his daughter by a concubine, and has given her to a husband, and has written her a deed; after her father has gone to his fate, she shall not share in the goods of her father's house.

If not so provided for by father

§ 184. If a man has not given a portion, as for marriage, to his daughter by a concubine, and has not given her to a husband; after her father has gone to his fate, her brothers shall present her with a [pg 061] marriage-portion, according to the wealth of her father's estate, and shall give her to a husband.

Adoption of natural son

§ 185. If a man has taken a young child, a natural son of his, to be his son, and has brought him up, no one shall make a claim against that foster child.

Adoption of child of living parents

§ 186. If a man has taken a young child to be his son, and after he has taken him, the child discover his own parents, he shall return to his father's house.

§ 187. The son of a royal favorite, of one that stands in the palace, or the son of a votary shall not be reclaimed.

Responsibilities of a craftsman to his adopted child

§§ 188, 189. If a craftsman has taken a child to bring up and has taught him his handicraft, he shall not be reclaimed. If he has not taught him his handicraft that foster child shall return to his father's house.

Rights of inheritance of an adopted son

§ 190. If a man has brought up the child, whom he has taken to be his son, but has not reckoned him with his sons, that foster child shall return to his father's house.

Obligations on discarding an adopted son

§ 191. If a man has brought up the child, whom he took to be his son, and then sets up a home, and after he has acquired children, decides to disinherit the foster child, that son shall not go his way [penniless]; the father that brought him up shall give him one-third of a son's share in his goods and he shall depart. He shall not give him field, garden, or house.

Punishment for the repudiation of adoptive parents

§ 192. If the son of a palace favorite or the son of a vowed woman has said to the father that brought him up, “You are not my father,” or to the mother that brought him up, “You are not my mother,” his tongue shall be cut out.

§ 193. If the son of a palace favorite or the son of a vowed woman has come to know his father's house and has hated his father that brought him up, or his mother that brought him up, and shall go off to his father's house, his eyes shall be torn out.

Penalty of substituting one infant for another

§ 194. If a man has given his son to a wet-nurse to suckle, and that son has died in the hands of the nurse, and the nurse, without consent of the child's father or mother, has nursed another child, they shall prosecute her; because she has nursed another child, without consent of the father or mother, her breasts shall be cut off.

Assault on a father

§ 195. If a son has struck his father, his hands shall be cut off.

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Graded penalties for assault and battery

§ 196. If a man has knocked out the eye of a patrician, his eye shall be knocked out.

§ 197. If he has broken the limb of a patrician, his limb shall be broken.

§ 198. If he has knocked out the eye of a plebeian or has broken the limb of a plebeian, he shall pay one mina of silver.

§ 199. If he has knocked out the eye of a patrician's servant, or broken the limb of a patrician's servant, he shall pay half his value.

§ 200. If a patrician has knocked out the tooth of a man that is his equal, his tooth shall be knocked out.

§ 201. If he has knocked out the tooth of a plebeian, he shall pay one-third of a mina of silver.

Brutal assault

§ 202. If a man has smitten the privates of a man, higher in rank than he, he shall be scourged with sixty blows of an ox-hide scourge, in the assembly.

§ 203. If a man has smitten the privates of a patrician of his own rank, he shall pay one mina of silver.

§ 204. If a plebeian has smitten the privates of a plebeian, he shall pay ten shekels of silver.

§ 205. If the slave of anyone has smitten the privates of a free-born man, his ear shall be cut off.

Fatal assault

§ 206. If a man has struck another in a quarrel, and caused him a permanent injury, that man shall swear, “I struck him without malice,” and shall pay the doctor.

§ 207. If he has died of his blows, [the man] shall swear [similarly], and pay one-half a mina of silver; or,

§ 208. If [the deceased] was a plebeian, he shall pay one-third of a mina of silver.

Assaults upon pregnant women

§ 209. If a man has struck a free woman with child, and has caused her to miscarry, he shall pay ten shekels for her miscarriage.

§ 210. If that woman die, his daughter shall be killed.

§ 211. If it be the daughter of a plebeian, that has miscarried through his blows, he shall pay five shekels of silver.

§ 212. If that woman die, he shall pay half a mina of silver.

§ 213. If he has struck a man's maid and caused her to miscarry, he shall pay two shekels of silver.

§ 214. If that woman die, he shall pay one-third of a mina of silver.

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Gradation of surgeon's fees

§ 215. If a surgeon has operated with the bronze lancet on a patrician for a serious injury, and has cured him, or has removed with a bronze lancet a cataract for a patrician, and has cured his eye, he shall take ten shekels of silver.

§ 216. If it be plebeian, he shall take five shekels of silver.

§ 217. If it be a man's slave, the owner of the slave shall give two shekels of silver to the surgeon.

Penalties for unskilful operations

§ 218. If a surgeon has operated with the bronze lancet on a patrician for a serious injury, and has caused his death, or has removed a cataract for a patrician, with the bronze lancet, and has made him lose his eye, his hands shall be cut off.

§ 219. If the surgeon has treated a serious injury of a plebeian's slave, with the bronze lancet, and has caused his death, he shall render slave for slave.

§ 220. If he has removed a cataract with the bronze lancet, and made the slave lose his eye, he shall pay half his value.

Cure of limb or bowel

§ 221. If a surgeon has cured the limb of a patrician, or has doctored a diseased bowel, the patient shall pay five shekels of silver to the surgeon.

§ 222. If he be a plebeian, he shall pay three shekels of silver.

§ 223. If he be a man's slave, the owner of the slave shall give two shekels of silver to the doctor.

Fees for the treatment of the diseases of animals

§ 224. If a veterinary surgeon has treated an ox, or an ass, for a severe injury, and cured it, the owner of the ox, or the ass, shall pay the surgeon one-sixth of a shekel of silver, as his fee.

§ 225. If he has treated an ox, or an ass, for a severe injury, and caused it to die, he shall pay one-quarter of its value to the owner of the ox, or the ass.

Brander's liabilities

§ 226. If a brander has cut out a mark on a slave, without the consent of his owner, that brander shall have his hands cut off.

§ 227. If someone has deceived the brander, and induced him to cut out a mark on a slave, that man shall be put to death and buried in his house; the brander shall swear, “I did not mark him knowingly,” and shall go free.

Builder's fee and liabilities for bad workmanship

§ 228. If a builder has built a house for a man, and finished it, he shall pay him a fee of two shekels of silver, for each SAR built on.

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§ 229. If a builder has built a house for a man, and has not made his work sound, and the house he built has fallen, and caused the death of its owner, that builder shall be put to death.

§ 230. If it is the owner's son that is killed, the builder's son shall be put to death.

§ 231. If it is the slave of the owner that is killed, the builder shall give slave for slave to the owner of the house.

§ 232. If he has caused the loss of goods, he shall render back whatever he has destroyed. Moreover, because he did not make sound the house he built, and it fell, at his own cost he shall rebuild the house that fell.

§ 233. If a builder has built a house for a man, and has not keyed his work, and the wall has fallen, that builder shall make that wall firm at his own expense.

Boatmen's fees and liabilities

§ 234. If a boatman has built a boat of sixty GUR for a man, he shall pay him a fee of two shekels of silver.

§ 235. If a boatman has built a boat for a man, and has not made his work sound, and in that same year that boat is sent on a voyage and suffers damage, the boatman shall rebuild that boat, and, at his own expense, shall make it strong, or shall give a strong boat to the owner.

Hire of boats

§ 236. If a man has let his boat to a boatman, and the boatman has been careless and the boat has been sunk or lost, the boatman shall restore a boat to the owner.

Responsibility of boatmen carrying goods

§ 237. If a man has hired a boat and boatman, and loaded it with corn, wool, oil, or dates, or whatever it be, and the boatman has been careless, and sunk the boat, or lost what is in it, the boatman shall restore the boat which he sank, and whatever he lost that was in it.

§ 238. If a boatman has sunk a man's boat, and has floated it again, he shall pay half its value in silver.

§ 239. If a man has hired a boatman, he shall pay him six GUR of corn yearly.

Law of collision

§ 240. If a boat, on its course, has run into a boat at anchor, and sunk it, the owner of the boat that was sunk shall estimate on oath whatever was lost in his boat, and the owner of the moving vessel, which sank the boat at anchor, shall make good his boat and what was lost in it.

Working ox not to be distrained

§ 241. If a man has levied a distraint on a working ox, he shall pay one-third of a mina of silver.

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Hire of oxen and cows

§ 242. If a man has hired a working ox for one year, its hire is four GUR of corn.

§ 243. As the hire of a milch cow one shall give three GUR of corn to its owner.

Liability for loss of ox or ass by accident

§ 244. If a man has hired an ox, or an ass, and a lion has killed it in the open field, the loss falls on its owner.

Compensation for loss of ox by ill-treatment

§ 245. If a man has hired an ox and has caused its death, by carelessness, or blows, he shall restore ox for ox, to the owner of the ox.

§ 246. If a man has hired an ox, and has broken its leg, or cut its neck (?), he shall restore ox for ox, to the owner of the ox.

§ 247. If a man has hired an ox, and knocked out its eye, he shall pay to the owner of the ox half its value.

Responsibility for unavoidable accidents to a hired ox

§ 248. If a man has hired an ox, and has broken its horn, cut off its tail, or torn its muzzle, he shall pay one-quarter of its value.

§ 249. If a man has hired an ox, and God has struck it, and it has died, the man that hired the ox shall make affidavit and go free.

Death by goring, accidental

§ 250. If a bull has gone wild and gored a man, and caused his death, there can be no suit against the owner.

Responsibility for a vicious ox

§ 251. If a man's ox be a gorer, and has revealed its evil propensity as a gorer, and he has not blunted its horn, or shut up the ox, and then that ox has gored a free man, and caused his death, the owner shall pay half a mina of silver.

§ 252. If it be a slave that has been killed, he shall pay one-third of a mina of silver.

Responsibility of a tenant farmer

§ 253. If a man has set another over his field, hired him, allotted him tools, and intrusted him with oxen for cultivating the field and provided harnesses for them, and if that man has appropriated the seed or provender, and they have been found in his possession, his hands shall be cut off.

§ 254. If he has taken the provender or rations and has enfeebled the oxen, he shall make it good from the corn he has hoed.

§ 255. If he has let out the man's oxen for hire, or stolen the seed-corn, or has not produced a crop, that man shall be prosecuted, and he shall pay sixty GUR of corn for each GAN.

§ 256. If he is not able to pay his compensation, he shall be torn in pieces on that field by the oxen.

Wages of laborers

§ 257. If a man has hired a field-laborer, he shall pay him eight GUR of corn yearly.

§ 258. If anyone has hired an ox-herd he shall pay him six GUR of corn yearly.

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Theft of agricultural instruments

§ 259. If a man has stolen a watering-machine from the meadow, he shall pay five shekels of silver to the owner of the watering-machine.

§ 260. If a man has stolen a shadduf, or a plough, he shall pay three shekels of silver.

Wages of herdsmen

§ 261. If a man has hired a herdsman, to pasture oxen, or sheep, he shall pay him eight GUR of corn yearly.

Their liability

§ 262. If a man has intrusted ox or ass to ... [Passage mutilated.]

§ 263. If he has lost the ox, or ass, given to him, he shall restore ox for ox, and ass for ass to its owner.

§ 264. If a herdsman, who has had oxen or sheep given to him to pasture, has received his wages for the business, and been satisfied, then diminish the herd or lessen the offspring, he shall give increase and produce according to the nature of his agreements.

§ 265. If a herdsman, to whom oxen or sheep have been given, has defaulted, has altered the price, or sold them, he shall be prosecuted, and shall restore oxen, or sheep, tenfold, to their owner.

§ 266. If lightning has struck a fold, or a lion has made a slaughter, the herdsman shall purge himself by oath, and the owner of the fold shall bear the loss of the fold.

§ 267. If the herdsman has been careless, and a loss has occurred in the fold, the herdsman shall make good the loss in the fold; he shall repay the oxen, or sheep, to their owner.

Hire of animals for threshing

§ 268. If a man has hired an ox, for threshing, its hire is twenty ḲA of corn.

§ 269. If he has hired an ass, for threshing, its hire is ten ḲA of corn.

§ 270. If he has hired a young animal, for threshing, its hire is one ḲA of corn.

Hire of wagon, oxen, and driver

§ 271. If a man has hired oxen, a wagon, and its driver, he shall pay one hundred and sixty ḲA of corn daily.

§ 272. If a man has hired the wagon alone, he shall pay forty ḲA of corn daily.

Graded wages of day-laborers

§ 273. If a man has hired a laborer from the beginning of the year to the fifth month, he shall pay six ŠE of silver daily; from the sixth month to the close of the year, he shall pay five ŠE of silver daily.

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Wages of artisans

§ 274. If a man has hired an artisan, he shall pay as his daily wages, to a ... five ŠE of silver, to a potter five ŠE of silver, to a tailor five ŠE of silver, to a stone-cutter ... ŠE of silver, to a ... ŠE of silver, to a ... ŠE of silver, to a carpenter four ŠE of silver, to a rope-maker four ŠE of silver, to a ... ŠE of silver, to a builder ... ŠE of silver.

Hires of various boats

§ 275. If a man has hired a boat, its hire is three ŠE of silver daily.

§ 276. If he has hired a fast boat he shall pay two and a half ŠE daily.

§ 277. If a man has hired a ship of sixty GUR he shall pay one-sixth of a shekel of silver daily for its hire.

Compensation for defect discovered in a slave after sale

§ 278. If a man has bought a male or female slave and the slave has not fulfilled his month, but the bennu disease has fallen upon him, he shall return the slave to the seller and the buyer shall take back the money he paid.

§ 279. If a man has bought a male or female slave and a claim has been raised, the seller shall answer the claim.

Manumission of native slaves taken captive and bought back by travelling merchant

§ 280. If a man, in a foreign land, has bought a male, or female, slave of another, and if when he has come home the owner of the male or female slave has recognized his slave, and if the slave be a native of the land, he shall grant him his liberty without money.

Of foreign slaves

§ 281. If the slave was a native of another country, the buyer shall declare on oath the amount of money he paid, and the owner of the slave shall repay the merchant what he paid and keep his slave.

Punishment for repudiating a master

§ 282. If a slave has said to his master, “You are not my master,” he shall be brought to account as his slave, and his master shall cut off his ear.

General character of the Ḥammurabi Code

This is not the place to write a commentary on the Code, but there are a few necessary cautions. One of the first is that most clauses are permissive rather than positive. The verb “shall” is not an imperative, but a future. Doubtless in case of heinous crimes the death-penalty had to be inflicted. But there was always a trial, and proof was demanded on oath. In many cases the “shall” is only permissive, as when the Code says a widow “shall” marry again. There is no proof that the jury decided only facts and found the prisoner guilty or not, leaving the judge no [pg 068] option but to inflict the extreme penalty. The judge, on the contrary, seems to have had much legislative power. When this view is taken, the Code appears no more severe than those of the Middle Ages, or even of recent times, when a man was hanged for sheep-stealing. There are many humanitarian clauses and much protection is given the weak and the helpless. One of the best proofs of its inherent excellence is that it helped to build up an empire, which lasted many centuries and was regarded with reverence almost to the end.

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III. Later Babylonian Law

Bibliography

Very little is yet known regarding later Babylonian law. Dr. F. E. Peiser published in the Sitzungsberichte der Königliche Akademie der Wissenschaften zu Berlin (1889, pp. 823 ff.) a very interesting fragmentarily preserved text (82-7-14, 988, in the British Museum), which contains either a collection of abstracts of cases which have been decided, or precedents, or else an extract from some code later than that of Ḥammurabi. Dr. Peiser thought that the date was the second year of Ashurbânipal, king of Babylon. This seems rather unlikely, but may, of course, be true.

In his inaugural dissertation, Dr. Peiser, under the title of Jurisprudentiae Babylonicae quae supersunt, commented upon and illustrated the above text by numerous examples of cases, actually occurring during the period of the second empire. But the whole collection of fragments of law with which he had to deal was too small to do more than show what may be hoped for as the result of future discoveries.

As specimens of these laws we may take the following:

Agent not able to recover without power of attorney

Law A. [Col. II. 4-14.]

The man who has sealed a tablet, by the name of another, in favor of an owner of a field, or has sealed a bond, and has not caused to be executed a deed giving him power of attorney, or has not taken a duplicate of such a tablet [cannot take possession]; the man, in whose name the tablet, or bond, is written, shall take that field, or house.

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If a man acted as buyer, or lender, for another, he incurred liabilities, for which he could not indemnify himself, unless he had secured from his principal a deed empowering him so to act. But, if without such power of attorney, A had acted for B, and bought a house, or field, of C, and had the conveyance made out to B, of course paying C; or had lent money to C, in the name of B; and the transaction had been completed, by sealing the deed of sale or bond; then B was the owner of the field, or house, or the creditor for the loan. A could not plead that he was the real owner, even if he had not been able to recover the purchase-money or loan from B, in whose name he had made it. B, whose name appeared in the deed or in the bond, was the rightful owner.

Responsibility of one who sells

Law B. [Col. II. 15-23.]

The man, who has sold a female slave and has had an objection made concerning her, shall take her back. The seller shall give to the buyer the price named in the deed of sale, to its exact amount, and shall pay half a shekel of silver for each of the children born to her.

How long after sale objection could be raised is not stated. In early times a month was allowed for fever to develop; in Assyrian contracts a hundred days were allowed for fever or seizure. But a sartu, or “vice,” could be pleaded, at any time, as ground for returning the slave. Here it is clear that time was allowed for a slave to bear one or more children, before the repudiation lost effect. It is noteworthy that the seller had to buy back such children. The maid may have been bought to bear her master children, and if these were not sound, the master had ground for complaint and could not be held responsible for them. Also it was objectionable to separate mother and children. The price named is trifling. Compare § 278 of the Code, where, however, no mention is made of the children of a maid.

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The next law is unintelligible at present, owing to the lacunae, and doubtful readings of the text, which, moreover, is only given in transcription. It appears to concern a woman and her interests in a field or plantation and the trees in it, and its produce.

Permanent settlements at marriage between father of bride and the bridegroom

Law C. [Col. III. 3-15.]

A man has given his daughter to a freeborn man and the father has fixed something in a deed and given to his son, and the first-named has fixed a marriage-portion for his daughter and they have mutually executed deeds of settlement. They shall not alter their deeds. The father shall give in full the settlement (nuṣurru), which he had promised his son by deed, to the father-in-law, and deliver it.

The father here named appears to be the father of the bridegroom. He must make a settlement on his son, as well as the father of the bride on his daughter. The point of the law seems to be that these settlements on the part of the parents to the young couple are irrevocable. No subsequent engagements entered into can affect them. This settlement by the bridegroom's father on his son, which he has to pay over to the bride's father, evidently takes the place of the terḫatu, or “bride-price” of the Code. The obligation of a father to find his son the means for a bride-price appears in the Code, § 166; but there is no section which answers directly to this law. The marriage-portion is now nudunnu, in the Code it was šeriktu, while nudunnu was the husband's gift to the wife.

Inheritance rights of children of second marriage

Law D. [Col. III. 16-22.]

When the father [of the bridegroom] has had his wife taken away by fate, has taken to himself a second wife, and she has borne him sons, the sons of the second wife shall take a third of his property remaining.

This appears as part of the same section as Law C, and is enacted again in Law K, page 69. It is not easy to see why it is here, except to make plain that settlements on [pg 072] marriages of the sons of the first family are a first charge on the father's property. The second family takes a third, not of all the father once had, but of what is left after these gifts by deed have been taken out. The married sons of the first family are not disinherited by virtue of these gifts, but take among them two-thirds of what is left. This is against the Code, § 167.

Procedure in case the father-in-law is unable to carry out his promise of dowry

Law E. [Col. III. 23-31.]

A man who has promised a marriage-portion to his daughter, or has written her a deed of gift, and afterward his means have diminished, shall give to his daughter a marriage-portion according to his means that are left. Father-in-law and son-in-law shall not quarrel one with the other.

Dr. Peiser has shown that the marriage-portion was often held back a long time. Suits were brought to recover it from fathers-in-law. There is no corresponding section in the Code.

Marriage-portion of childless wife

Law F. [Col. III. 32-37.]

A man has given a marriage-portion to his daughter and she has neither son nor daughter and fate has carried her off; her marriage-portion returns to her father's house.

Exactly as in the Code, § 163.

The first seven lines of Col. IV. are too fragmentary to give a connected sense, but are still concerned with the marriage-portion.

Rights of inheritance of a childless widow

Law G. [Col. IV. 8-24.]

A wife, whose marriage-portion her husband has received, who has no son or daughter, and fate has carried off her husband, shall be given from her husband's property the marriage-portion, whatever that was. If her husband has made her a gift, she shall receive the gift of her husband with her marriage-portion and take it away. If she had no marriage-portion, the judge shall estimate the property of her husband and, according to her husband's means, shall grant her something.

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It is noteworthy that in the above laws the old usage is reversed. Now the nudunnu is the marriage-portion, given with the bride, and the šeriktu is the husband's assignment to the wife. With this alteration the law agrees with the Code, § 171. But there she has a family.

The rights of a widow with children in case of re-marriage

Law H. [Col. IV. 25-45.]

A man has married a wife and she has borne him children; after that man has been carried off by fate, and that woman has set her face to enter the house of another, she shall take the marriage-portion which she brought from her father's house, and whatever her husband presented her as a gift, and shall marry the husband of her choice. As long as she lives, she shall enjoy food and drink from them. If there be children of this husband, they and the children of the former husband shall share her marriage-portion. The sisters....

This is practically the same as Code, § 170, but it is differently arranged and the phrases differ markedly. Note that the sisters were separately treated.

Division of the estate of a man twice married

Law K. [Col. V. 33-46.]

A man has married a wife and she has borne him children, and fate has carried off his wife; he has married a second wife and she has borne him children; after the father has gone to his fate, the children of the former wife shall take two-thirds of the goods of their father's house, the children of the second wife shall take one-third. Their sisters who are dwelling in their father's house....

This must be contrasted with § 167 of the Code. There all sons share equally. Here the first family take two-thirds. The sisters were also treated separately. It is clear that we have to do with a code which preserves many features of the early times, but has many new features of its own. It is greatly to be desired that further portions should be published.

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IV. The Social Organization Of The Ancient Babylonian State

The three great classes of the population: the gentry, the common men, and the slaves

The State appears in the light of the Ḥammurabi Code to have been composed of three great classes, the amêlu, the muškênu, and the ardu. To the first class belonged the king and the chief officers of state, and also the landed proprietors. Their liabilities for fines and punishments were higher. Also in their case the old law of “eye for eye, tooth for tooth” still held; while others came under a scale of compensations and damages. This may point to a racial difference. The ancient laws of Arabia may have been carried with them by Ḥammurabi's tribal followers, while the older subject-residents accepted the more commercial system of fines. The old pride of the Arab tribesman may have forbidden his taking money as payment for his damaged eye, or tooth. But the muškênu was more “humble,” as his name denotes, and may well have formed the bulk of the subject-population. He was a free man, not a beggar. He was not without considerable means, as we see from the sections referring to theft from him. He had slaves, and seems to have been liable to conscription. His fees to a doctor or surgeon were less than those paid by an amêlu. He paid less to his wife for a divorce, and could assault another poor man more cheaply than could an amêlu. There can be no doubt that the amêlu was the [pg 075] “gentleman” or “nobleman,” and the muškênu a common man, or poor man. But the exact force of the terms is uncertain.

In process of time amêlu came to be used, like our “sir,” and even “esquire,” of those who had no special qualifications for the title. Like the “gentleman's gentleman” of the servant's hall, he was only a respectable person. So, even in the Code, amêlu usually means no more than “man.” It already appears as a mere determinative of personality in the titles of laborers and artisans, when it cannot stamp them as landed proprietors. But it may mark them as members of the guilds of craftsmen and recall the respect due to such. If, however, we press this, we must admit a guild of day laborers.

There is no suggestion of any legal disability on the part of a muškênu; he is merely a person of less consideration. Whether or not his ranks were recruited from the children of slaves by free parents is not clear, but it is very probable that they were.

The slave was at his master's command and, like a child in his father's house, to some extent a chattel. He could be pledged for debt, as could a wife or child. He was subject to the levy, and his lot was so far unpleasant that we hear much of runaway slaves. It was penal to harbor a slave, or to keep one caught as a fugitive. Any injury done to him was paid for, and his master received the damages. But he was free to marry a free woman and the children were free. So a slave-girl was free on her master's death, if she had borne him children; and the children were also free. He was subject to mutilation for assaulting a free man, or repudiating his master. But his master had to pay for his cure, if sick. He was not free to contract, except by deed and bond. Yet he and his free wife [pg 076] could acquire property, half of which would fall to his wife and children on his death.

The levy-master and the warrant-officer

The Code reveals the existence of a class of men, who were indeed known from the letters of Ḥammurabi and the contemporary contracts, but whose functions are not easy to fix. They were the rîd ṣâbî and the bâ´iru. By their etymology these titles seemed to mean “slave-driver,” and “catcher.” But the Code sets them in a clearer light. They were closely connected, if not identical, officials. They had charge of the levy, the local quota for the army, or for public works. Hence “levy-master” and “warrant-officer” are suggestive renderings. For the former official, “taskmaster,” the one over the gang of forced laborers and reminiscent of the old time press-gang officers, is a fair translation. “Field cornet” would perhaps suit the military side. For some aspects of their office the ancient “reeve” may be compared. Whether the “catcher” actually was a local policeman, whose chief duty was to apprehend criminals and reluctant conscripts, is not yet clear. The same name is used of “fishermen,” who were “catchers” in another sense, and of hunters. A really satisfactory rendering is impossible, as we have now no officials whose duties actually correspond to theirs.

Their compensation

Each of these officials held what may be called a benefice, or perhaps a feoff. It consisted of land, house, and garden, certain sheep and cattle as stock, and a salary. It was directly ascribed to the king as benefactor. We may compare the Norman lords settled in England by the Conqueror, or the Roman soldier-colonists. The men may well have been the followers of the first founder of the dynasty. In a very similar way the Chaldean conqueror, Merodach-baladan II., long after, settled his Chaldean troops in Babylonia. We may regard these men as retainers of the king, and probably as originally foreigners. The benefice was held by them for [pg 077] personal service. They were to go “on the king's errand” when ordered. It was a penal offence to send a substitute. The errand might take them away from home and detain them a very long time. In such enforced absence the official might delegate his son to take his place and carry on his duty. This implies that there was a local duty besides the personal service. Further, this needed a grown man to discharge it. The locum tenens enjoyed the benefice, with a reserve of one-third for the wife to bring up the children of the absent official. An official by neglecting the care of his benefice ran the risk of forfeiture. This came about by his absence giving the locum tenens opportunity to acquire a prescriptive right, which he might do in three years, if he showed himself a more worthy holder. But this was only if the absentee had been neglectful, and a one-year tenancy conferred no such right.

The risks of public service

The service on which the official might be engaged was evidently military and had risks. It is not certain whether the dannatu is really a “fortress,” or a “defeat.” The word has both meanings. It does not really matter. Either way the official is captured by the enemy of the king. He was bound to pay for his own ransom, if he had the means; or if not, his town must ransom him and, failing that, the state. But he could not raise money on his benefice. Moreover, while it could descend to his son, it was inalienable. No diminution by bequest to his female relatives, no sale of part of it, no mortgage on it, nor even its exchange for other like estate, was allowed.

Further, the official and his benefice were protected. He could not be hired out by his superior officers, nor in any way plundered or oppressed. He held tax free, subject only to his feudal duty.

The tributary

In some cases the tributary there is associated with these [pg 078] two officials. No duty is set down for him, beyond that implied in his name of paying a tribute. It is not clear that all land was held on one or the other scheme, but it is so in parts of the East still. Some land is held by personal service, some on payment of a tax. This tax later became the tithe. The personal service was later compounded for by furnishing a soldier or two for the army. The liability to serve in the levy continued to be borne by slaves and the lower classes.

All land subject to royal taxation

That all land did owe either personal service, or tax, is probably to be deduced from § 40, where we read that though a levy-master, warrant-officer, or tributary could alienate nothing of their holdings, other land-owners could do so. But they did so subject to the buyer taking over the duty, or service, of the land so transferred. One of the classes here named, the votary, appears subject to service elsewhere. The votary of Marduk is expressly exempt from this service. The merchant, who represents another class, appears very often to have been a foreigner, only temporarily resident in the country.

The votaries

The votary was already known to us from the contracts, but there was little to fix her functions. As seen in the Code, she was a highly favored person. Vowed to God, usually to Shamash at Sippara, or Marduk at Babylon, there seems little to connect her with the prostitute-votaries of Ishtar at Erech. She ordinarily lived in the convent, or “bride-house” of Shamash. She was given a portion, exactly like a bride, on taking her vow and becoming the “bride” of Shamash. But her property did not go to the convent. At her father's death, with her consent, her estate might be administered by her brothers, or she could farm it out. At any rate, she was provided for during her lifetime. But at her death, unless her father had specially given her power to bequeath it, her property went [pg 079] back to her family. She was not, however, doomed to spend all her days in the convent. She could leave it and even marry. But she was expected to maintain a high standard of respectability. For her to open a beer-shop or even enter one for drink was punished by burning. She remained a virgin, even if married. She could have no children and must provide her husband with a maid, if he wished to have a family. But she was carefully guarded from any reproach as childless. She ranks as a married woman, even if unmarried, and is protected from slander. Many noble ladies, and even kings' daughters, were votaries.

The merchant

The merchant continually appears. Some passages suggest that he was a state official. But this is really pressing far the interest which the state took in him. He was, doubtless, like the Jew of the Middle Ages, a valuable asset to the king. He seems to have been the usual moneylender, so much so that in many places “merchant” and “creditor” are interchangeable. A man is usually said to borrow of “his merchant,” as we say “of his banker.” Doubtless, the king also borrowed from him. It is certain that the Code was very lenient to him. But the merchant also did business in the way of ordinary trade. As a capitalist he sent out his travellers and agents with goods far and wide, even into domains where the king's authority did not reach. Much of the Code is occupied with regulating the relations between the merchant and his agent. The agency was that form of commenda which is so characteristic of the East at the present. The agent takes stock or money of his principal, signs for it, agrees to pay so much profit, and goes off to seek a market, making what profit he can. There is much to suggest that the merchant was not usually a Babylonian. In later times, the Arameans were the chief merchants, and travelled all over Mesopotamia, Palestine, Syria, and into Asia Minor.

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V. Judges, Law-Courts, And Legal Processes

Antiquity of the judicial organization

Partly because specific references to judges and legal processes are not necessarily to be expected in historical inscriptions, and partly because we do not really know which are the earliest monuments of the race, it is impossible to decide when law-courts first came into existence. It is generally admitted, however, that the stele of Manistusu is one of the earliest known monuments. There we read of Galzu, a judge. There also we find many of the officials, who later acted as judges upon occasion. Hence it may fairly be said that judges were to be found in ancient Babylonia from time immemorial. They must have decided what was right when there was no written law to which to appeal. With the judges were associated as assessors the elders of the city. This was so marked a feature, that in some cases we read, that after hearing the complaint the judge “assembled the city” to hear the case. In Babylonia the maxim, littera scripta manet, was so well understood that hardly anything of importance was done without committing it to writing. Hence we are as well informed about domestic affairs in Babylonia as about those of Europe in the Middle Ages.

Sources of our knowledge of early legal procedure

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, 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.”

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. In later times we have many examples of such a stay of process that evidence might be produced.

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. A slanderer was summoned before the judge, a son could not be cut off without referring the case to a judge, the children who wished to turn their widowed mother out of her house had to appear before a judge.

Position, rank, and qualifications

For the most part judges constituted a distinct profession, but it must not be understood that they had no other means of livelihood. Indeed, there is no hint anywhere that they received any remuneration for their services. But it was a high honor and by no means subsidiary to another office. Among those who officiated as judges we find most of the higher officials. Doubtless the king himself acted as judge on occasions, and probably no great official of the realm was wholly free from the call to act in a judicial capacity. But, as a rule, the judge is simply noted as “judge.” That the priests were judges is quite unproved. [pg 083] The judges were men of great importance and high rank, but there is nothing to show that they were priests. An age qualification is more likely.

Method of appointment

The judge was a professional man. We often find a man, bearing the title “judge,” acting as party to a suit, or witness to a deed, when he is certainly not acting in his judicial capacity. To a certain extent he was a territorial officer, had his own district for jurisdiction, and was jealous of cases being taken elsewhere. How the ranks of the judges were filled we do not know, but there is a hint of royal appointment in the phrase, “the king's judges.” On the other hand, there is clear evidence of the office being hereditary. Thus, Ibik-Anunîtum had no less than three sons, Idin-Ishtar, Marduk-mushallim, and Nannar-idinnam, all judges. Whether a right to the office descended in the female line is not quite clear, but we find a lady, Ishtar-ummu, among the judges, on occasion. She was also the scribe.

The chief-justice

Though many high officials acted as judges, and so doing are named before the simple “judge,” there is no evidence of the existence of any “chief judge.” The order of names appears to be that of seniority alone. This may be due to the nature of our documents. The phrase-books name a “chief judge” for Sumerian times. In the later Assyrian period the chief-justice was called sartênu, evidently because he fixed the sartu, or fine, on the condemned party. Then also many high officials acted as judges.

The scribes

2. Scribes.—The scribe exercised his craft as a profession. One often meets with a scribe, tupšarru, acting in a private capacity, as party to a suit, or as witness. He retains the title even when the deed is drawn up by another writer. The class was very numerous. Almost every document is drawn up by a fresh scribe, so far as the scribe's name is [pg 084] recorded, for he often omits his title. Generally he is the last of the witnesses, but not always so.

Their duties

He wrote the whole of the document, including the names of the witnesses. There is no evidence that anyone else ever wrote a word on the document. As a rule, even when the names of the fathers of the witnesses are given, the scribe is content to write only his title after his name. Hence we have no evidence whether the office was hereditary or not.

Female scribes

Women certainly were scribes. Out of a total of ninety names of scribes known, at least ten were women. Here a difficulty arises from the way in which women's names occur. At this period proper names are usually written without the determinative which marks sex. Nor do the names decide, for both men and women bore the same name. Thus Taribatum is the name of two men and also of two women. Only when the title tupšarru is given, is the feminine determinative prefixed to that. We have, however, ten clear examples.

In the later times the scribe usually was a man, but female scribes are known. The Aramaic scribe is often named, also the Egyptian. The scribe usually “held” the agreement, which probably means that the parties were willing to leave it in his safe-keeping.

The scribe not a judge

The scribe was not a judge. It may be true that he sometimes acted as judge or became one, but then the higher office overshadowed the lower. He was no longer scribe but judge. A judge may sometimes have written down his legal decision and so acted as scribe, but we have no evidence of such a case. The judge seems never to have dispensed with the services of the scribe.

The scribe not a priest

The scribe was not a priest. There is no evidence whatever that either priests were all scribes, or could all write, [pg 085] or that scribes were necessarily priests. As a matter of fact, the same man may have acted both as scribe and priest. But the offices are distinct and no one man ever bears both titles. That in later times the amêlu RID, whose title can be read šangû, usually acts as scribe is due to the peculiar nature of the documents. These concern transactions in which the property of the temple, or of its officials, was in question, and one of the college of priests attached to that temple was charged with the duty of notary where temple interests were concerned. One might as well say that every clerk in the Middle Ages was a priest, because all the deeds of the monastery with which we were dealing were drawn up by Brother A, whose name was entered in some monastery list of the brethren as a priest. Whether the scribes were clerics, and always attached to some temple, in minor orders, is not clear. On the whole, the evidence is against this conclusion.

The witnesses

3. Witnesses.—The word used to designate a witness is šîbu, which denotes those who are “gray-headed,” but it is not certain that it can have no other meaning. It may mean those who were “present.” In actual use we can distinguish three classes of persons to whom the term “witness” can be applied.

The elders of a city

First we have the elders, the šîbu, of a city. Possibly the Kar-sippar, by which some men swore, or in presence of which a contract was drawn up, were these elders of Sippar. They formed the puḫru, or “assembly,” in whose presence a man was scourged, from which a prevaricating judge was expelled. They may have been nominated, or at least approved, by the king; for we read of šîbê šarri. They were not exclusively men, for we have šîbê û šîbatu. The recurrence of the same names, at the same dates, indicates that a body of official witnesses were held in readiness [pg 086] to act on such occasions. Many of them were temple officials, or members of the guild of Shamash votaries.

Their jury duties

Sometimes they are associated with the judges in such a way as to show that they were assessors. 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. In the time of Nûr-Adadi they sent a case before the king. They actually gave judgment. 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.

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, 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.

The advocate

The plea was made by the principals to the suit. There is no mention of an advocate, or solicitor. But the verb generally used of the plea ragâmu, gives rise to targumânu, the original of the modern dragoman. He usually appears in later texts as the “interpreter,” but may originally have been the “advocate.” At any rate, in the bilingual days he might well have combined the offices. Another verb common at this period, pakâru, gave rise to pâkirânu, later the usual word for “plaintiff,” or “claimant.”

The plaintiff in the reports

Here may be noted a peculiarity of the scribe's conception of the case. It will be found that, as he puts the case, the plaintiff generally loses. This is because the scribe will not prejudge the case by saying who was right. He writes “A claimed the property of B.” In actual fact it may have been that B laid claim to what he proved was his. But that excludes the scribe from saying that B claimed the property of A, because it never was A's. Hence, writing after the event, he ascribes the property to the rightful owner from the start of his document, and regards the wrongful holder as laying claim to it. Hence, we must not assume that the parties were not both claimants. In fact, both parties agreed, as a rule, so far as to submit their case to a judge. This is clear from the statements which follow the statement of the cause of dispute. Both parties “went to the judges,” or rather quaintly, “they captured a judge.” The preliminary discussion between the parties resulted in agreement to submit the case to a judge. Both were willing to abide by the decision. Once, it is true, the plaintiff is said to have caught the defendant; but there is no evidence [pg 089] of unwillingness to submit. So too, when the parties are said to “receive a judge,” they evidently both sought him.

Summons before the judge

Sometimes affairs did not go so smoothly. One party had to act and bring the other before the judges or “caused them to come before the judge.”

There are indications that the judges sometimes had to summon a party before them, or as the scribe puts it, “bring him before the other party.” This is also expressed by the judges “sending up” a party.

Appeals

There is considerable evidence that cases might be sent before the judges by a higher party, the king himself. These cases were probably on the suit of a plaintiff. In the letters of the First Dynasty we have examples of the king sending to the local judges his own decision on the case, which they had to carry out; or in other cases he simply sent the case for trial.

Various places for holding a court

The parties, having found a judge and obtained a day for hearing, “entered,” or “went down to,” the great temple of Shamash, at Sippara, called Ebabbarim. There, as we know, Ḥammurabi set up one of the copies of the Code. The case was heard sometimes at the “old gate.” At Babylon, the parties were taken to the temple of Merodach, Esagila. At Larsa, the “gate” of NIN-MAR-KI, or the temple of Sin, might be chosen. The temple of Ishhara is also named.

Legal procedure

5. Procedure.—We have only scattered hints regarding legal procedure. The Code says that the judges “saw the pleas.” The scribe uses the same expression. As a rule, he records the plaintiff's statement of claim first. Then he records a counter-statement. There is a strong [pg 090] suggestion that he quotes from written documents. The judges read these, or heard the verbal statements.

The deity the theoretical source of all judicial authority

As part of the legal process, the object in dispute, or, at any rate, the deeds relating to it, were brought into court, and resigned into the hands of the god. He was to discern the rightful owner and restore the object to him. Hence the decision was “the judgment of Shamash in the house of Shamash, the judgment of the house of Shamash.” So the defendant was said “to make his account before Shamash.” In bringing a suit the parties “sought the altar of Shamash.” In case of loss or damage, the claimant recounted it “before god.”

Summoning witnesses

In confirmation of the statements alleged witnesses might be called for, who were put on oath before god and the king. They were supposed to know the object claimed and whose it was, or to know that a transaction had taken place.

Bribing witnesses

Tampering with witnesses, or with a jury, was penalized by the Code. The judges might refuse to accept the witness, and then might decide the case on the sworn deposition of the plaintiff.

Different kinds of testimony

Documentary evidence might be demanded. The judges might decide to take the evidence of their own senses and go to see an estate or a house in dispute. Or they might determine that it was a case for the accused to purge himself, which he did by oath.

Rendering the decision

Having thus informed themselves of the rights of the case the judges proceeded to pronounce a decision, “they caused them to receive judgment.” This phrase nearly always occurs in the legal decisions. The decision might be called “the judgment of the particular judge,” for example, dîn Išarlim, “Israel's judgment.” The sentence [pg 091] is sometimes stated in the words of the judges themselves, introduced by ikbu, “they said.” Thus we read “the tablet which A granted to B is good, they said.”

The collection of damages

If one party was in the wrong, the judges “laid the wrong on him,” or “put him in the wrong.” When the suit was to recover a debt, or find compensation, the judges might name a sum which they paid over to the proper person. This was damages, not a fine.

Breaking a contract-tablet

A ceremony which often took place on the annulment of a former agreement, or cancelling of a deed was the breaking of the tablet embodying the former contract. The same ceremony took place on repayment of a debt, or on dissolution of a partnership, apparently without recourse to judges. This was ordered by the Code in case of purchases of property which it was illegal to sell or buy, such as the benefice of a reeve or runner. So when an adopted child had failed to carry out the bond to nourish and care for the adoptive parent, the deed of adoption was formally broken by the judges.

For later times we have little evidence. What there is was collected by Kohler-Peiser, and agrees in general with the above.

The legal decision

6. The decision.—In these ways the judges “quieted the strife,” “composed the complaint.” It was the standard conception of a legal decision that it should be irrevocable. The Code enacts the deprivation and deposition of a judge for revoking his judgment. The legal decisions lay down the stipulation that the losing party shall not “turn back,” shall not “complain.” These phrases nearly always occur, as they do also in contracts. To insure compliance with the decision the judges again exacted an oath. Whether both parties swore, or only the losers, is not clear. The statement [pg 092] usually is “they swore,” without mention of the persons who did so.

Documentary form

The decision, being complete, was embodied in a document drawn up by the scribe, regularly witnessed, often by the judges, and sealed. Thus it was that the judges granted him an irrevocable tablet. These irrevocable tablets, practically imperishable also, have now come after thousands of years, to tell their tale.

Administration of oaths

7. Administration of the oath.—The ceremony of swearing to the truth of evidence, or the terms of a compact, is continually mentioned. The exact form of words used in taking the oath is not certain; but in actual suits, in the law-court procedure, the judges administered an oath to both parties and witnesses. In the Code oaths were admitted for purgation of alleged crime, as evidence of loss, deposit, injury; and the reception of a sworn deposition is recorded. References to oaths continually occur in the contracts.

Form of the oath

The judges “gave them to the oath before Shamash and Adad,” or, more briefly, “gave him to the oath of god.” The name of the god by whom men swore is usually given. As might be expected, the god who figured most prominently in the Code was Shamash, the chief deity of Sippara, often associated with his consort, Aia, or Malkatu. Sometimes the oath was “by the king.” Often one or more gods and the king are named together. When Babylon became supreme it was usual to swear by Marduk and the local gods as well. The significance of these oaths for historical purposes is great, both as indicating political relationships, and as often affording by the name of the king the only clew to the date of the document. Mr. King, in his [pg 093] edition of the Chronicle, and Dr. Lindl, have made skilful use of these oaths in determining chronology.

The place where it was administered

The administration of the oath took place before the censer of Shamash or at the shrine, Šašaru, of Shamash, in Sippara; or before the emblematic dragon sculptured on the doors of the Marduk temple at Babylon. Other places are named which we are not yet able to identify. A kind of magical conjuration appears sometimes to have been employed, which is not yet understood.

Its purport

The purport of the oath was, not to give false evidence, or, in the case of contracts, not to alter the stipulated agreements. It is often followed by the words, “whoever shall alter or dispute the words of this tablet,” evidently a quotation of the words of the oath; but the consequence of so doing is not given. Either it was too well known, or too awful, for the scribe to write it down.

Its gradual decrease in importance

In Assyrian times the oath did not play such an important part. Still, it was in use occasionally. The oath is generally found in documents of the grand style, such as royal charters. Oaths also are of interest for the pantheon of Assyria. A common way of expressing the same thing was to call on a god to be judge of the case, as for example, “Shamash be judge,” or “Shamash be advocate,” that is, “take up the case.” So the king's son, or crown prince, is invoked to be the advocate. An appeal was also made to the decision of the king. The gods, “Ashur, Sin, Shamash, Bêl, and Nabû, the gods of Assyria, shall require it at his hands” is another way of putting the case. These examples illustrate the meaning of the older oaths. There do not seem to be any cases of the witnesses being put on oath.

Its preservation as an antique form

But the oath lingered on into very late Babylonian times, [pg 094] when we have some very full forms. If anyone shall change or alter the agreement, “may Marduk and Zarpanit decree his destruction.” In Persian times we find a curse on the same breach of faith in the terms, “whosoever shall attempt to alter this agreement, may Anu, Bêl, and Ea curse him with a bitter curse, may Nabû, the scribe of Esagila, put a period to his future.” It is curious thus to note a recrudescence of old forms in these later times. Was it merely an antiquarian fashion or had the Persians earlier come under strong Babylonian influence and preserved the old forms which had died out in their native home? The Elamite contracts suggest exactly the same question. In them it seems evident that Elam, once under Babylonian influence, adopted and preserved, under native rulers, forms of which we have no trace in Babylonia, but which clearly came from that country. Assyria is another case in point. She kept forms which we know date back before the time of her independence and which had disappeared from the contemporary Babylonian documents. In the later Babylonian times we still find the parties and the witnesses in a law-court put to the oath.

Penalties for perjury

8. Penalties.—An unsuccessful suitor was not allowed to get off merely with the loss of his suit. He had been put on his oath and been unable to justify himself, or the word that he had spoken. According to the Code, if the suit was a capital suit, this was punished with death. But even if the case was less serious, it was slander to have brought a false accusation, and the penalty for slander was branding. This penalty was inflicted on an unsuccessful suitor for possession of a house sold by his father. Another form of penalty for unsuccessful litigation was that the suitor should not only lose his case but actually be condemned [pg 095] to pay the penalty which he, if successful, would have brought on the other party. That this is what was really intended by the clauses is shown by the case of Belilitum, who as late as b.c. 555,having brought a suit to recover a debt which she alleged was not paid, was convicted of perjury by the production of the receipt, and by the evidence of her own children, and not only lost her case, but was condemned to pay the sum for which she had sued to him from whom she sought to obtain it. This was of course a form of retaliation.

Forfeits

In Assyrian times the parties usually bound themselves not to litigate, nor attempt to disturb the settlement made between them, under heavy forfeits to the treasury of a god, often tenfold the value of the object in dispute, and sometimes prohibitive in amount. Such sums as two talents of silver, or two talents of gold, controvert the idea that these forfeits were looked upon as possible deposits by a claimant desiring to reopen the case. They were terrific penalties intended to deter any attempt at litigation.

Nature of the forfeits

The forfeit sometimes took the form of white horses, or foals (?), which were dedicated to a divinity. Very interesting is the mention of the dedication of the eldest child to a god, or goddess. This is worded as if the dedication was to be by fire. The additional mention of incense or cedarwood, as accompanying the offering, renders it probable that it was really meant that the litigant should be punished by the sacrifice of his child as a “burnt offering” to the god. But this only makes it clearer that such penalties were simply meant to be deterrent. We have no proof that such an offering ever took place. It was a memory of bygone horrors, but not less interesting as showing what had once been possible. A more natural and extremely common penalty was the payment of a tenfold value to the disturbed [pg 096] owner. In later times this was twelvefold. This was an example of the multiple restitution so common in the Code.

The ordeal

Something very like an ordeal was occasionally imposed. The very fragmentary condition of the texts which give it adds to its obscurity. But it appears to have consisted in the litigant being compelled to eat a mina weight of some magically concocted food and to drink the contents of an inscribed bowl. What the result was expected to be is not stated. One fragmentary text appears to name the ingredients of the magic potion. All that can be made out points to an ordeal, somewhat similar to that inflicted upon a suspected wife in Numbers v. 12-31.

9. Penalties for wrong-doing.—We are chiefly indebted to the Code for our knowledge of the penalties which the judge and his assessors might inflict.

The death-penalty

Foremost we may place the death-penalty. This was inflicted by the Code for witchcraft, for theft, for corruption of justice, for rape, for causing death by assault, for neglect of duties by certain officials, for allowing a seditious assembly, for causing death by bad building, and for varieties of these crimes. It is curious that no mention is made of murder pure and simple. But this is only accidental. It is evidently assumed. For the Code brings several cases of murder under this penalty. Procuring the death of a husband is punished by it; even a fatal assault, as that on a pregnant woman who dies of miscarriage as the result. The need of an oath to establish lack of malice in giving a blow in a quarrel which led to death tends to show that murder was punished by death, and that it was regarded as death intentionally caused. An explicit statement was clearly not needed. We do not yet know how this sentence was carried out. Usually the Code only says “he shall be killed”; by whom, or how, is not stated. For special cases the manner is described.

[pg 097]

Drowning

Death by drowning was inflicted on a beer-seller for selling beer too cheaply; on a woman for adultery, for being a bad wife, for incest, or for desertion of her husband's house. In every case the victim was a woman. When men were drowned they shared a woman's fate. In two cases, adultery and incest, we read of the criminals being bound. In the latter, § 155, it seems that the man was “bound” and the woman drowned. In the former, § 129, both were “bound” and both drowned. It is hardly likely that “bound” can mean merely tied up, or imprisoned, in the case of the man who committed incest. I would suggest that in both cases it means “strangled.” The alternative would be that the confusion in § 155 is due to the scribe.

Burning

Death by fire is directly ordered for a votary who opens or enters a beer-shop, for a man and his mother in incest, and indirectly for a thief at a fire.

Impalement

Impalement on a stake is ordered for a wife procuring her husband's death.

Ordeal by water

Indirectly the death-penalty would often be the consequence of an appeal to the ordeal by water, in §§ 2, 132.

Mutilations

The various sorts of mutilation named are of two types: (1) retaliation for bodily disfigurement, (2) symbolical of the offence itself. Thus eye for eye, tooth for tooth, limb for limb, are pure retaliations. But the hands cut off mark the sin of the hands in striking a father, in unlawful surgery, or in branding. The eye torn out was the punishing of unlawful curiosity. The ear cut off marked the sin of the organ of hearing and obedience. The tongue was cut out for the ingratitude evidenced in speech.

Scourging

Scourging is the only other form of corporal punishment. It was done with an ox-hide scourge, or thong, and sixty strokes were ordered to be publicly inflicted for a gross assault on a superior.

[pg 098]

Banishment

Banishment from the city was the penalty for incest.

Simple restitution

Restitution may, perhaps, hardly be regarded as a penalty. Thus a man who was found in possession of lost property had to restore it. In case of loss caused by neglect or ill-treatment of hired property, or of goods deposited or intrusted, or by want of care in treating diseased limbs, restitution, goods for goods, ox for ox, ass for ass, et cetera, was ordered.

Multiple restitution

But restitution of many times the damage inflicted is a distinct penalty. The Code orders threefold for cheating a principal, fivefold for loss or theft of goods by carrier, sixfold for defrauding an agent, tenfold for theft by a poor man, or for careless loss by shepherd or herdsman, twelvefold for a false sentence by a judge, thirtyfold for theft on the part of a gentleman.

Retaliation

The infliction of the same loss on a criminal that he caused another is seen in the cases of mutilation, eye for eye, limb for limb, tooth for tooth, but also in the penalty of son for son, daughter for daughter, slave for slave; and in the rule that a vexatious suitor shall pay the penalty which his suit was calculated to bring on the defendant.

Vicarious punishment

This retaliation is the explanation of what seems to be vicarious punishment, where a man suffers in the person of his son, or daughter, for the loss he has caused to the son or daughter of another.

Loss of claim

Another penalty was the voidance of a claim. If a man took the law into his own hands to repay his debt, he lost all claim to recover it through the courts. When the purchase was illegal and void, as that of an officer's benefice or of a ward's property, the purchaser had to return his purchase and lose what he had paid for it.

[pg 099]

Cases where no claim is allowed

In certain cases no suit was allowed to gain standing. Contributory negligence, the natural death of hostage for debt, the accidental goring of a man by a wild bull, are excluded from litigation. Such events cancel all further claim or are expressly said to have no remedy. There is no case for prosecution.

Compensation

Compensation for loss caused by crime, or neglect, is ordered on a scale fixed by the Code. Where a tenant takes a field on produce-rent his neglect to cultivate caused a loss to the landlord. He was thus bound to pay an average yield, or a crop like his neighbor's, or that of the next field. In later times, the vagueness of this rule, which might give rise to dispute, was avoided by stating in the lease the average rent to be expected. For certain classes of land, where no comparison with the next field could be instituted, a fixed rate was set down. Compensation for premature ejectment was ordered.

[pg 100]

VI. Legal Decisions

Meaning of the term

By a legal decision we understand a “judgment” pronounced by some judicial authority upon a case submitted. It is not easy to say whether the Babylonians had a separate name for this sort of transaction; but it had some peculiarities by which it can be easily recognized. It usually opens with the words, duppu ana, “tablet on,” followed by the statement of the object in dispute. This is very often abbreviated to a simple ana, “on,” or aššum = ana šum, “concerning,” or eli with the same sense.

These usages explain the curious tablet where we have a long series of sections each containing names associated with other names by the word aššum. Thus we read:

“Nishînishu, daughter of Rîsh-Sin, aššum Shamash-ellatsu, son of Itti-Sin-dinim.”

Technical terms used

It is not clear whether Shamash-ellatsu was the adversary of Nishînishu, or the subject of her suit. But we clearly have here a “trial list” of seventeen cases. Whether they were all decided in one day, month, or year, or whether they were reserved for the royal audience, we have no means of telling. It is merely a list. The object in dispute, “two SAR of land,” is occasionally given; or the court is named “the temple of Shamash,” or “at the gate of Shamash.” The whole text is too fragmentary to be translated, but we may [pg 101] note that some lady or other is always a party to the suit. If we could find the tablets referring to the decisions intended and they should turn out to be of different years, this list might prove of value for chronology.

Their arrangement

Legal decisions relate to all manner of subjects and consequently are difficult to arrange. Dr. Meissner adopted the excellent plan of appending them to the groups concerned with the class of property dealt with under them. Thus a legal decision concerned with the sale of a house would be grouped with the house sales. But this does not suit all cases, and both in formula and subject the legal decisions are really distinct. Most legal decisions add nothing to our knowledge of the law, merely recording that “A sued B and lost the day and is now bound over not to renew the litigation.” A large number go only a little further, thus:

Suit concerning inheritance

Ribatum, daughter of Salâ, was sued by the sons of Erib-Sin, Shumma-ilu and Mâr-erṣitim, concerning what Salâ, her father, and Mullubtim, her mother, had left her. They took judges who restored to her one-half GAN of land, her property. Shumma-ilu and Mâr-erṣitim, sons of Erib-Sin, shall not renounce this agreement nor dispute it. They swore by Shamash, Malkat, Marduk, and Samsu-iluna the king. Four judges appear as witnesses. Dated the 10th of Elul, in the second year of Samsu-iluna.

Here it is not stated what was the ground on which the parties disagreed, nor that they laid claim to more than one-half GAN of land. They lost the case. That is all we know in many other cases. Often we do not know the object in dispute. Other cases are quite full and often very instructive. Thus:

Suit for paternal power over daughter

About the maid Adkallim, whom Aiatîa had left to her daughter Ḥulaltum. Ḥulaltum had taken care of her mother Aiatîa; while Sin-nâṣir, the husband of Aiatîa, who was in Buzu for twenty years, [pg 102] had left Aiatîa to her fate, loved her not. Now after Aiatîa was dead, Sin-nâṣir laid claim on whatever Aiatîa had, and on Ḥulaltum for the maid Adkallim. Isharlim, the rabiânu of Sippar, with the Kar-Sippar, assigned sentence; they laid the blame on him. He shall not renounce the agreement, nor dispute it. They swore by Shamash, Marduk, and Ḥammurabi the king. The judgment of Isharlim. Four witnesses. Dated in Elul, the 9th year of Ḥammurabi.

This was a bad case of desertion. The husband, Sin-nâṣir, deserted his wife for twenty years, but on her death came back and claimed her property. This he was not allowed to do, by the Code. In his absence, Ḥulaltum had cared for Aiatîa, either as his real, or only adopted, daughter. In either case, Aiatîa had left Ḥulaltum a slave-girl, Adkallim, whom Sin-nâṣir now claimed. His claim was disallowed.

The decisions which we now possess give little further information as to the legal procedure, but a series of abstracts will illustrate the legal points which they raise.

Ṣilli-Ishtar and Amêl-ili, sons of Ilu-eriba, were sued by Eribam-Sin, son of Ubar-Sin, concerning a house, etc., which they bought of Sin-mubaliṭ and his brothers. They say that they bought with money which Ṣilli-Ishtar received from his mother and which formed no part of that which they had in common with plaintiff as partners. Deposition accepted. Ḥammurabi 34.

The sons of Zâziâ sue Sin-imgurâni and Sin-uzilli for rights in a house next the temple of Ningirsu, five days' income in the temple of Sin, sixteen days' income in the shrine of Bêlit, and eight days' income in the shrine of Gula. Claim not made out. Era of Isin 6.

Idin-Adadi and Mattatum have no claim on property which Ḥishatum has or shall inherit. Rim-Sin (?).

Adadi-idinnam and Ardi-Martu agree on dissolution of partnership. Zabum 1.

[pg 103]

Brothers of Ur-ilishu agree not to proceed against Sala-ilu and Ur-ilishu concerning property left by latter. Apil-Sin (?).

Family of Urra-gâmil sue Erib-Sin for account of his partnership with and his indebtedness to Urra-gâmil deceased. Erib-Sin settles. N. D.

Sin-ellâtsu gave a ring to Ramê-Ishḫara. The children of Sin-ellâtsu agree not to sue her for it. Ḥammurabi (?).

Private settlement of claims to property. N. D.

In the above cases there is no explicit mention of judges. The next group are cases before judges where fact of suit, subject and result are given, but not the pleas presented.

Imgur-Sin and Ilu-eriba sue Iatratum concerning a house which she bought of their father. Nonsuited. Before judges of Babylon and Sippara.

Ṣilli-Ishtar and Eribam-Sin entered into partnership. On dissolution of their partnership they chose judges, paid in their common stock and shared equally. The shares are scheduled in the deed of settlement. Ḥammurabi 34.

Pala-Shamash and Apil-itishu dispute concerning a division of property. They obtain judges and city witnesses. The whole house and income is shared equally and each agrees to waive further claim. Ḥammurabi (?).

The two sons of Ḳû-Ishtar disagreed as to their shares. Nidnat-Sin, the rab Martu, makes equitable division. Ḥammurabi 33.

Apil-ilishu and Pala-Shamash dispute the latter's right to a house, ship, servants, money, and property in his possession. The city elders from Ḥuda and Shibabi gave judgment and confirmed the title of Pala-Shamash.

The sons of Nûr-Shamash sue Bêlitum for the property left her. Before judges. Nonsuited. Sumu-lâ-ilu.

Shunu-ma-ili and Mâr-erṣitim sue Ribatum concerning her right to the legacy of Salâ and Mullubtim. The judges assign her an income, ḫibiltu. Samsu-iluna 2.

Marduk-mubaliṭ and Sin-idinnam sue Shâd-Malkat concerning her house in Bît Gagim. Judges confirm her title. Apil-Sin.

[pg 104]

Ḥuzalum and Pî-Malkat, children of Nabi-Shamash implead Shidi-lamazatanḫu of Gagim concerning various rights to incomes and rations in the temple of Shamash. The judges assign shares to each. Samsu-iluna (?).

Aliḳu and Sumu-ramê sue Shakumâtim about a house they sold him. Nonsuited. N. D.

Shamash-bêl-ili repudiates a sale of land to the Lady Mannashi. He is nonsuited. Ḥammurabi 15.

Family of Ardi-rabish against Erib-Sin on account of property left them by Ardi-rabish. Nonsuited. Sin-mubalit 20.

Ḥamaziru sues Manutum for house and property but is nonsuited. Sumu-lâ-ilu.

Kasha-Upi bought a house of Itti-itishu and his sons, Bêlshunu and Ilushu-bânî. Amêl-Ninshuna, son of Bêlshunu, brought a suit about the house. Judges condemn him to be branded on the forehead and confirm Kasha-Upi's title. Sin-mubalit.

Nishinishu sues Ana-erishti-Malkat for three SAR of land before the king's judges. Nonsuited. Samsu-iluna 2.

Malkat-kuzub-mâtim sues Ani-talime for restitution of a field, before the judges of Babylon and Sippara. The witnesses sustain her claim, which is granted. Samsu-iluna 3.

The family of Izidaria sue the family of Azalîa about the property of Izidaria deceased. Their title is confirmed. Zabum 12.

Shamash-bêl-ili sues Nidnusha concerning a house bought by him of her. The judges grant him two shekels of silver. Ḥammurabi 1.

Shî-lamazi sues her brothers for a field and wins her case.

Before Lushtamar, nâgiru of Babylon, Adadi-idinnam and Ibku-Ishtar, judges, Zariku was put to the oath and replied to Erib-Sin. He was told that as his domicile was at Sippara, he must not make his appeal to the judges of Babylon. So his case was dismissed. Ḥammurabi 28. The record is defective.

Cases before judges where the plea and its result can be made out with some certainty are as follows:

Ardi-Sin, son of Eṭiru, sued the sons of Shamash-nâṣir who had sold a plot of land, two and a half GAN in area, to Ibni-Adadi the [pg 105] merchant. He claimed the land as ancestral domain, bît abišu, and denied that he had ever alienated it. The sons of Ibni-Adadi, now in possession, produced the deed of sale, duppu šimâti, which Eṭiru and Sin-nâdin-shûmi, his brother, had executed to Shamash-nâṣir and his son. The judges assigned a small portion of the land, about a sixth, to Ardi-Sin, but make up the rest, apparently, from another quarter. Ammizaduga (?).

Mâr-Martu bought the garden of Sin-mâgir. Ilubânî disputed the legality, ṣimdattu, of the sale. Before the judges at the gate of Nin-marki he deposed that he was the adopted son of Sin-mâgir, which adoption had never been revoked. In the time of Rim-Sin the house and garden had been awarded to Ilubânî and then Sin-mubaliṭ had brought a suit against Ilubânî, which was regularly heard before judges and witnesses from Nin-marki. They had awarded the house and garden to Ilubânî. Sin-mubaliṭ was now bound over to dispute the title no more. Ḥammurabi.

Here it seems that on the deposition of Rim-Sin by Ḥammurabi, Sin-mubaliṭ, excluded by his bond from disputing Ilubânî's title, sold his claim to Mâr-Martu, who attempted to enter into possession. Possibly it was thought that the new rulers would reverse the old decision.

Right of a widow on remarriage to her husband's property or gifts

The sons of Namiatum sue their mother, Iashuḫatum, about her share of their father's property. She appears before the judges of Babylon and puts in an inventory to show that she has taken nothing from the family possessions. Then the sons of Namiatum renounce further claim on the ground of family possession to the property of Idin-Adadi, Iashuḫatum and their descendants. Samsu-iluna 2.

It seems that, after the death of Namiatum, Iashuḫatum married again. The children of the first marriage bring an action to secure judgment that she shall not take with her any property of their father's. She had, as we know, a right to take with her her marriage-portion, but not her husband's gifts to her.

[pg 106]

Amêl-Ninsaḫ sues Garudu for the rent of a field. The debtor not paying was ejected. Apil-Sin.

Shûmi-erṣitim sues for right to a sheep and some corn, the naptánu of a god. Judges grant him half share. Ḥammurabi 9.

Judges summon Ibik-iltum before Elali-bânî to account for corn. He purges himself on oath. N. D.

Amat-Shamash claims to be the adopted daughter of Shamash-gâmil and his wife Ummi-Araḫtum. Her witnesses proving unsatisfactory, her claim was disallowed on the oath of Ummi-Araḫtum that they had never adopted her. Ḥammurabi (?).

Ilushu-abushu hired a pack-ass, imer bilti, of Ardi-Sin and Ṣilli-Ishtar and lost it. The judges awarded them sixteen shekels of silver as compensation. Apil-Sin 5.

Babilîtum sued Erish-Saggil, Ubar-Nabium, and Marduk-nâṣir for a share of her family possessions, bît abiša. The judges assigned her a share. Samsu-iluna 5.

Nidnusha and Shamash-abilu sue the daughter of Sin-eribam about property which she claimed to have inherited. They charge her with having forged the will of Amti-Shamash in her favor. The judges went to Gagim, where the property was, and examined witnesses who proved that Amti-Shamash had left the property to the daughter of Sin-eribam. The judges therefore confirmed her title. N. D.

Mâr-erṣitim left a female slave Damiḳtum to Erib-Sin. His wife Mazabatum and his brother Ibni-Shamash dispute this legacy. The judges inspect a document by which Erib-Sin, on the suit of Mâr-erṣitim, had granted Damiḳtum to Mazabatum and Ibni-Shamash. The judges return Damiḳtum to Mazabatum. Ḥammurabi (?).

Legal practice of Assyrian times

In Assyrian times we have comparatively few legal decisions. The judges who appear are the sartênu, or chief-justice; the ḫazânu, the chief civil magistrate of a city, the parallel of the ancient rabiânu; the sukallu, or chamberlain; and one or two others, besides the simple daiânu, or judge. Some of these are not judicial officers, but act in that capacity.

[pg 107]

Usually the judge is said to lay the blame on the guilty party, arnam eli A emêdu; or to lay the penalty upon one, sartu eli A emêdu. The sentence itself was a dienu, or “judgment.” As in former times, the legal decisions refer to all manner of cases, and here more than anywhere else a mere translation does not convey much meaning to the reader.

Thus: a scribe A prosecuted a farmer B for the theft of a bull. They came before Nabû-zêr-kênish-lîshir, the deputy ḫazânu of Nineveh. Restitution, bull for bull, was imposed on the defendant, who meantime was held for the fine. “On the day that he shall have made good the value of the bull he shall go free.” Dated the 12th of Elul. Eponymy of Mushallim-Ashur. Twelve witnesses.

Again: A stole four slaves of B, who summoned him before the sukallu. The judge laid on him a fine of two hundred and ten minas of copper. B then deposited a pledge with A, either himself, or a slave, to perform work equivalent to the amount of the debt. If B, or any representative of his, pays the money, the pledge is void. “Whoever shall withdraw from this agreement, Ashur and Shamash shall be his judges, he shall pay ten minas of silver and ten minas of gold, he shall pay it in the treasury of Bêlit.” Dated the 10th of Adar, b.c. 678. Eleven witnesses.

Here is another case, relating to a breach of trust:

Damages for loss by agent

The decision of the chief-justice, which he laid on Ḥanî. Three hundred sheep, with their belongings, property of the king's son were lost, or killed by the shepherds. Each shepherd was condemned to pay two talents of bronze as his fine. Ḥanî, and his people, and his fields, were taken as security for the payment for the three hundred sheep, and the fines due from the shepherds. “Whoever shall demand him, his šaknu, his rab kiṣir, or any representative of his, shall pay for three hundred sheep and the fines for the shepherds and then Ḥanî shall be released.” Dated 27th of Sebat, b.c. 679. Four witnesses.

The defendant had been intrusted with three hundred sheep, which he had to return in full, with a proper increase [pg 108] of lambs. But, evidently in the disorders which arose on the death of Sennacherib, Ḥanî had lost or made away with them. If he had intrusted them to shepherds, either the shepherds had killed them, or, as some take it, Ḥanî had killed the shepherds. In the former case he owed two talents of bronze as fine from each shepherd, in the latter he had to pay the same amount for each. Either way, he was held responsible for the value of three hundred sheep and two talents of bronze for each shepherd. He and all he had were seized for the liability. It is interesting to note that his district governor, or the colonel of the regiment to which he belonged, was thought likely to liberate him; but some other representative might do so. The lost property belonged to the king's son. This may have been Esarhaddon, or one of Sennacherib's other sons. But, at any rate, it is clear that Esarhaddon was putting his household in order.

Additional cases

The other examples known to us do not add to our legal knowledge. The subjects are chiefly misappropriations of property and there is little variety.

Later Babylonian decisions

The later Babylonian tablets throw some light upon legal procedure in Babylon. The greater detail exhibited by them is due largely to the fact that for this period we have so many private documents. The greater portion of the material for this part of the subject has been worked over by Professor J. Kohler and Dr. F. E. Peiser, in their valuable treatise Aus Babylonische Rechtsleben. Little can be added beyond additional examples and illustration.

Method of procedure

The judges acted as a college and not separately. There might be present at a case a chief judge and several judges assisting. Other cases were decided before a single judge. The šibûtu continue to act as a jury. They were the elders of the city, competent to decide the rights of the case. But the exact form of the organization is not yet quite clear.

[pg 109]

The process began with the charge. The plaintiff preferred this himself, or by a messenger. His plea was heard and his proofs considered. Then the court caused the accused to come before them and answer the charge.

The possible complications

The process admitted of a third person intervening. Thus, A had pledged a plot of land to B for thirty-two shekels. Then he sold the property to C. C, dying, left the property to D, who wished to take possession from B, who continued to hold it in pledge. B goes to the judges and complains against D. A, being yet alive, intervenes and probably has to pay B. But the tablet being defective, we are not able to follow the case further. Only we see the sort of right which each had.

Dispute for the possession of a sum of money

Another case is where two parties dispute as to the possession of a sum which is actually in the hands of a banker. The banker accordingly undertakes to produce the sum and its interest in court, and to pay it over to the successful party in the suit. The decision was written down and the notary of the court gave a copy to the plaintiff, if not also to the defendant, and kept one copy for the archives. The plaintiff thus obtained a guarantee against the defendant. But how it was enforced we have no evidence.

Suit regarding loan on mortgage

The kind of points in dispute and decided are, as before, exceedingly varied. The decisions for the most part illustrate other subjects rather than the processes in court; but a few examples may be of interest: A made an advance of forty-four shekels to B, who pledged a house for it. This state of affairs continued until both were dead. Their sons inherited. A's son demanded forty-four shekels of B's son who refused to pay. Both came before the judges. B's son, pleaded that the money was never loaned or else repaid long ago. The judges demanded evidence. Either the contract or a receipt must be produced. The claimant was able to present the contract, but no receipt was produced. So the [pg 110] judges assigned the claimant a plot of land belonging to the defendant as satisfaction for the proved debt. Here we have the tablet witnessed by the chief judge, the judges, and the notary. What is curious is that the claimant was not content to keep the pledge. But it is probable that the debt was secured on a house which the creditor did not take into his possession. It is also surprising that the judges did not order the house to be handed over to the claimant. That may have been avoided, because of the family rights over the house. The debtor might thus have been rendered houseless, or have lost “his father's house.” The widow may still have been an inmate. A great part of the document is taken up with the specification of the land handed over to the claimant. Hence a complete translation is not given.

Regarding possession of a slave

A common type of case was a vindication of right to some sort of property. Thus A had sold B a slave, but C came forward and said: “He is my slave who fled from me,” and took an oath by Bêl and Nabû, that he knew where that slave was living with A. The judges decide that C shall go where the slave is, and when he has proved that he is with A, the slave shall return to C.

Acknowledgment of a debt

We have an acknowledgment before the court and a promise to pay the debt. This promise was usually made on oath, or guarantees were given. Here is an involved case. A is father of B's mother. B's father is long dead. The property of A, his grandfather, has now come into B's hands. He finds an old bond for an advance from A to C and D. The latter D is also dead but had a son E, who inherited. Hence B now sues C and E for the money. The bond is shown to C, who remembers and acknowledges the debt and he now undertakes to bring his fellow-debtor E and discharge the debt.

[pg 111]

Settlement out of court

Men did not always stand their trial, but sometimes settled the case by an agreement out of court. A and his wife sued B for some slaves, people of their house. B dreads the trial and does not appear. The wife was B's mother, evidently remarried. B brings the slaves whom he still has and offers four minas as payment for one who has died in his house. The offer is accepted and parties agree to be quit.

A private settlement

The decision of a dispute was not always referred to professional judges. A very interesting example occurs, when the eldest member of the family and kinatti aplišu, “the family of his son,” act as judges. The plaintiff is an old lady, who had been married, and had a daughter married. These facts are not rehearsed in the tablet itself, which concerns a division of property, but are collected from a number of tablets, spread over some sixty years. The way in which information is thus collected is an instructive example of the manner in which the different documents illustrate and explain one another.

Agreements to appear in court

Connected with legal decisions are the undertakings to appear before the court, of which we have several examples. Thus, A undertakes to bring B to Babylon and answer the complaint of C. Or again, a certain gardener spoke to A before an official of the mâr banûtu. This official was subpœnaed, as we should say, and swore by Bêl, Nabû, and Darius, that on the 8th of Sebat, two days hence, he would come and take up the case.

Production of witnesses

The production of witnesses is the subject of not a few undertakings. Thus, by a fixed date, five days hence, A shall bring B to be questioned about some asses belonging to the royal household. Again, N swears to come, six days hence, and bring another, on account of the witness about A. He further undertakes to establish the partnership. [pg 112] What was the exact cause of quarrel was not stated. These agreements to abide by the testimony of a named witness may have been entered into without reference to judges, but the oath may have been administered before the court. Thus, two parties agree to waive their dispute and abide by witness produced. This they do before the atû official of the gate of the temple. Again, A is to bring witnesses on the second of Ab, to the door of the tikkalu's house, and prove when and to whom he gave certain garments. If this be proved, that B had received them, B will restore the said garments to A; if not, B is free. Further, if B does not appear on that day, he shall be bound to restore the garments. Several other examples illustrate the point.

Production of bond

A common method was, as has already been shown, to produce the bond or other document, establishing the claim. If, for some reason, the document was not producible, the oath of the scribe who wrote it might be admitted. The witnesses whose names appear on the document do not seem to have been summoned. But in one case, when two Persians had sold two slave-girls, also Persians, to a Babylonian; a third Persian, who had been witness to the sale, was called on to swear, “I know that the money was paid,” and he sealed the document.

[pg 113]

VII. Public Rights

The mixed population of Babylonia

The early inhabitants of Babylonia are usually regarded as a non-Semitic race, whom we term Sumerians. Upon them was superimposed a layer of Semitic peoples. The first dynasty of Babylon is now often called Arabian. But the evidence of a previous admixture of peoples is not lacking. The subsequent history bears witness to many invasions by Kassites, Elamites, and nomad tribes, some Semitic, some probably not. Later came Persians and Medes, not to speak of Greeks and Parthians.

Position and rights of resident aliens

The foreign wars brought slaves from all the surrounding countries, even as far away as Egypt. We cannot here enter into any discussion of the foreign elements in the population; but it is important to note what the attitude of the Babylonians was to the foreigners resident in their midst. The evidence on the whole is very slight. It may be said, that as a rule, resident aliens became citizens and were under no disabilities. One section of the Code, if we correctly understand it, allows an alien to purchase an estate, provided he bears the liabilities to the state which lay upon it. The “merchant” was probably usually an alien, and only temporarily resident. In the contracts of the Ḥammurabi period, with the exception of the frequent West-Semitic names, we have little trace of aliens. When the Kassites came we may expect the conquering race to [pg 114] have had full rights. In Assyria there is no trace of disability. Egyptians, Elamites, Armenians, Jews, Arameans, contract exactly like natives. In later Babylonian times we find the same freedom. Of course Persians, and, later, Greeks, were under no disabilities. Hence there is very little at any time to chronicle under this head.

We have marriages between Persians and Egyptians, with witnesses, Babylonian, Persian, Aramean, and Egyptian. Medes rent a Babylonian's house, and live there. A Persian buys of a Babylonian. A Persian father gives Babylonian names to his children. A vivid picture of the mixed nationality in the time of Artaxerxes II. is given in the “Business Documents of Murashû Sons,” and the list of proper names attached to Professor Hilprecht's edition sufficiently illustrates the point.

Tax on landed property

Ownership of land carried its liabilities of tax or service. These were carefully guarded and it was the mark of an oppressor to exceed the normal demand. That, however, seems to have been regularly and continually paid. A very good illustration of public rights over land, or the relation between the state and the private owner, is afforded by the construction, in the reign of Cyrus, of a canal of Shamash by the priest of Sippara. It was to pass through certain lands and the consent of the owners had to be obtained. The magistrates and honorables of the city A, through which it would pass, and the peoples of the neighboring fields were assembled. They were asked to swear, as Susians, subjects of the King of Susa, that they would raise no difficulty. Then the priest took on himself the cost of the work on the canal, but stipulated that when it was completed, the neighbors should keep it in repair. Also he forbade the construction of any rival canal. Riparians [pg 115] were responsible for the care of the canal as shown in the Code.

State liabilities

The state undertook some duties. In the Code we note that the palace would, failing other means, redeem an official from captivity.

District liabilities

There were certain local liabilities of a public nature. Thus the Code shows that the magistrate and his district were held responsible for highway robbery or brigandage in their midst. It may be assumed that the funds to meet such liabilities were furnished by the city temple, for we note that if an official were captured, and his private means were not sufficient for his ransom, his city temple had to furnish the money.

General system of taxation

The whole question of taxation is full of difficulties. There were certain persons who paid tribute, that is, some proportionate part of their produce, others did personal service. There is frequent mention of dues of various sorts, at ferries, market-places and the like. Demands were made on the stock or crops of the farmers. But we are not yet in a position even to sketch the system of taxation.

[pg 116]

VIII. Criminal Law

Reason for the lack of information regarding criminal law

Cases concerned with criminal law were naturally not embodied in contracts. Some cases doubtless may be inferred from the legal decisions, but these are only where the penalty had already been commuted from death or punishment to payment or restitution. They are better taken as examples of civil law. But this distinction is not the cause of their rarity or absence. When a man had to be put to death, scourged, or exiled, there was no need for a written bond. Hence the only references which we have outside the Code and the phrase-books, are the penalties set down in marriage-contracts for conjugal infidelity, or for breach of contract voluntarily agreed to by the parties to it.

Blood-vengeance commuted for a gift

We have one case from Assyrian times of the assignment of a slave-girl, as composition for manslaughter. Atarkâmu, a scribe, had caused the death of Samaku, whose son Shamash-ukîn-aḫi had the right to exact vengeance. Whether as the result of a legal decision or not, Atarkâmu hands over a slave-girl to Shamash-ukîn-aḫi and they agree to be at peace. The name of Ashurbânipal occurs in a position which strongly suggests that the king himself sat in judgment upon the case. The tablet is so fragmentary that little else can be made out, but it seems to have been stipulated that the slave should be handed over “at the grave.”

[pg 117]

Imprisonment

In later Babylonian times we have a reference to imprisonment arising out of a case of guarantee. The priest of Shamash at Sippara had put A in prison in fetters; B, a fellow-official of his of the same standing, bails him out, giving guarantee to the priests and šibûtu that A shall not go away, or if he does, that B will do his work.

Assault

A case of assault and forcible entry into a house occurs. But the tablet is so defective that we cannot make out the rights of the case. The superintendent of the city Shaḫrin, in the eighth year of Cyrus complained to the priest of Shamash at Sippara, to the following effect: He had taken into his house, as a prisoner, a certain man A. He pleads that he is uncle to the priest and chief magistrate of the city. Why then has the priest raised his hand over him? Further, seven men, who are armed, have burst in his door and entered his house and taken a mina of gold. Whether this was a rescue by relatives of the prisoner, or by order of the priest, does not appear. As a result of this complaint, the elders of the city were assembled and depositions made. Beyond the plea on the part of the house-breakers that someone had paid them to break in the door, and that the prisoner A was someone's pledge, we get no further information.

Tempting a slave to desert

A case of procuration of desertion, forbidden by the Code under pain of death, was condoned by the injured party. A caused a maid of B's to leave her master's house. B received her back, pardoned A, and took no money of him.

Adultery and its punishment

Adultery was punished in the Code by drowning. The Code in this and similar cases of sexual irregularity is explicit that the case must be flagrant. Suspicion was not enough. But conduct leading to scandal had to be atoned [pg 118] for by submission to the ordeal. The Code did not take a higher ground than public opinion. The private contracts name death as punishment for adultery. Usually it is drowning, but being thrown from a high place, temple, tower, or pillar is named. In the later contracts death was still the penalty for a wife's adultery, but the penalty had ceased to be drowning only. The adulteress might be put to the sword.

A woman's procuring her husband's death, for love of another, was punished by impalement.

The punishment of incest

Incest on the part of a man with his own daughter involved his banishment. Incest with a daughter-in-law, if she was his son's full wife, was apparently punished by his being drowned. The Code is obscure here and we are not sure whether she was drowned also. If the girl was not yet fully married, the case was treated as one of ordinary seduction, and the culprit was fined half a mina.

If a man committed incest with his own mother, both were burned. If a man had intercourse with his foster-mother, or step-mother, who had borne children to his father, he was disinherited.

[pg 119]

IX. The Family Organization

The sources of information

Marriage is the bond which unites the different members of the family. The married pair, their children, slaves, and adjuncts, one side or the other, constitute the family unit. The Sumerian laws presuppose marriage; but, so far as known, merely attached penalties to repudiation of the wedded ties. The Code is very full and explicit and forms the basis of all our knowledge. The contemporary documents extend it in some particulars. In Assyrian times we know little or nothing about the laws concerning marriage. In later Babylonian times very little is known until the Persian period, when we have many illustrations. But what we know, or can gather from scattered hints, makes it clear that the state of things represented in the Code remained practically unchanged for the whole period.

The marriage-contract and its obligations

The Code is explicit that a woman was not a wife without “bonds.” This was a marriage-contract; of which the essentials were that the names of the parties and their lineage were given, the proper consents obtained and the declaration of the man that he has taken so-and-so to wife inserted. As a rule, stringent penalties are set down for a repudiation of the marriage-tie. In these bonds a man might be required to insert the clause that his wife was not to be held responsible for any debts he might have incurred before marriage. The Code enacts that such a clause shall be held to act both ways; if it is inserted, then the man shall [pg 120] not be liable for his wife's debts before marriage. But, if no such bond existed, the wedded pair were one body as far as liability for debt was concerned, by whichever it had been contracted and, in spite of such a bond, both were liable together for all debts contracted after marriage.

Family relations

The family relationship was of primary importance. Whatever may be said about traces of matriarchy in Babylonia, we have no legal documents which recognize the institution. The father is the head of the family and possesses full power over his wife and family. But the woman is not in that degraded condition in which marriage by capture, or purchase, left her. She was a man's inferior in some respects, but his helper and an honorable wife.

Ancient gentes

Not only was the family, which consisted of the wedded pair and their dependents, a unit, but there was also a connection with ancestors and posterity which enlarged the family to a clan or gens. In this sense it often appears. The family thus constituted had definite rights over its members. It was very important to a man to be sure of his family connection. We may note the importance attached at all epochs to a man's genealogy as distinguishing his individuality. His family identified him. There was a very large number of well-marked and distinguished families, which took their names from a remote ancestor. So far as our evidence goes, these ancestors were by no means mythical, but actually lived in the time of the first dynasty of Babylon. To all appearances they date back “to the Conquest.” Unfortunately no attempt has yet been made to work out the family histories. But men of such families were the mâr bânê, or “sons of ancestors,” and had special privileges, which continually emerge into notice. We may compare the hundred families of China and the patricians of many nations. There were other families of scarcely less antiquity [pg 121] and consideration. They do not name their ancestor, but refer to him as a tradesman. They were sons of “the baker,” of “the measurer,” et cetera, with which we may compare our proper names Baker and Lemesurier. There was a court of ancestry, bît mâr bânûti, which investigated questions arising from claims to belong to such families and which doubtless preserved in its archives the genealogical lists of these exclusive families. They must have registered the birth of all fresh members and all adoptions; for men were adopted freely into such families.

Guilds of working-men

It is not clear whether all members of a family which traced descent, real or putative, from a trade-father, actually carried on that trade. If so, we should have examples of a workmen's guild. Certainly many men who carried on a trade were “sons” of the trade-father, but apparently not all. The Code notes the adoption of a child by an artisan who teaches him his trade. In certain cities the trades had their quarters. We read of the “city of the goldsmiths” in Nineveh.

Their rivals

It may well be that these guilds were close corporations at first and continued so to be in the less crowded trades, but rivals outside the guild also came to be tolerated. The slaves were artisans in great numbers and their increase may have led to the decay of the old artisan guilds of free workers.

Public registration of family events

The importance of descent was not a sentimental matter only. The laws of inheritance involved a careful distinction between proper heirs and a variety of claimants. Hence it seems likely that there was a registration of births, deaths, and marriages, at least covering the patrician families. We have such examples as a man claiming to be of same father as another, claiming brotherhood. The other repudiates the claim. The tablet is too fragmentary for us [pg 122] to follow the arguments. The slave Bariki-ilu claimed to be a mâr bânû and his claim was heard before the court of the mâr bânê.

Entailed family property

Further, as the wife's marriage-portion, if she died childless, went back to the “house of her father,” and as a man who died without issue had to leave his property to his “father's house,” and as many had only a life-interest in their property, while the family usually had a right of pre-emption in the case of proposed sales, we see that the family always had a strong hold over property. Not only was it for the man's interest to be registered as of a certain family, but it was also for the family's interest to register all its members.

Responsibilities of family to its individual members

There are suggestions that the family assumed certain responsibilities over the man; for in Assyria it appears that the family might come forward and liberate a man from his debt. A free man, who had been sold as a slave to Ashnunnak, and who escaped to Babylon, after five years, being claimed as a slave by the levy-masters there, chose to serve his father's house. His brothers swore by Marduk and Ammiditana the king, making an irrevocable declaration that as long as he lived he should take up the duties of his father's house with his brothers. In the later Babylonian times, the head of the family, though only a distant relation, was called upon to act as judge in a dispute concerning the disposition of property.

[pg 123]

X. Courtship And Marriage

Amount of the bride-price

The suitor came with presents to the parents of the girl. Most writers see in this a survival of the purchase of the bride. The name of this gift, terḫatu, is undoubtedly connected with the name of the bride, marḫitu. This present, or bride-price, differed greatly with the circumstances of the parties. Both money and slaves were given, but a simple sum of money was more common. In cases where the bride was rich or highly placed the amount seems less. A very usual amount was ten shekels, but we have examples from one shekel up to three minas. The Code assessed it at one mina of silver for a patrician and a third of a mina for a plebeian.

Its disposal

Without this bride-price the young man could not take a wife. Hence it was expressly secured to him by the Code, if his father died before he was of age to marry, and reserved as a first charge on the father's estate. There is some evidence that a woman might make this present to her future husband. But that may have been because he was too poor to make it himself and she found him the means. As a rule, the parents gave this money to the bride. But we are not in a position to say whether they did so at once, on the consummation of the marriage, or on the birth of a child. The suggestion that it was her Morgengabe remains without support. Certain it is that it was not returned [pg 124] always. In the contracts it seems to be given to the bridegroom with the bride. On a wife dying without children, the husband was bound to return her marriage-portion to her family. But if the bride-price which he had given for her had not been returned to him, he could deduct its value. On a divorce, he was bound to let his wife have not only her marriage-portion, but the bride-price paid back to him. If there had been none, he must give her a fixed sum instead of it.

Its presentation

From the phrase-books we may gather that there was a sort of ceremony about presenting the bride-price to the father: it was placed on a salver and brought in before the parents. This was probably a part of the ceremony of betrothal.

If the father rejected the suitor, he was bound to return the bride-price offered. A curious section of the Code enacts that if the suitor's comrade intrigued to break off the match, he was excluded from marrying the girl himself.

Penalty for breach of promise

If, after he had brought in the bride-price to his prospective father-in-law, the suitor took a fancy to another girl, he might withdraw from the suit. But he then forfeited what he had offered. If this really was the result of having taken a dislike to a plain girl, we may suppose that such a maiden might accumulate several bride-prices and so acquire some wealth. This may explain Herodotus's idea that the handsome girls made a dowry for the plain ones. But there is not a shred of evidence for their doing so in the way he suggests. A girl was a virgin when she was married.

Preliminaries of marriage

Of interest in the later Babylonian texts is the fact that the preliminaries of the marriage are more fully illustrated. Thus we read of the wedding of the daughter of Neriglissar: Nabû-shum-ukîn, the êrib bîti of Nabû, judge of Êzida, [pg 125] spoke to the King Neriglissar, saying thus: “Give to me Gigîtum, your young daughter, to wife.” The tablet has only preserved a few lines, from which we cannot be sure that the marriage took place. The tablet was called a duplicate of Êzida, showing that it was preserved in the Nabû temple at Borsippa.

The following case is one of the clearest:

Negotiation of a father for his son

Nabû-nâdin-aḫi, son of Bêl-aḫê-iddin, grandson of Ardi-Nêrgal, spoke thus to Shûm-ukîn, son of Mushallimu, saying: “Give me thy daughter, Ina-Esaggil-banat, the maiden, to wife, for Uballitsu-Gula, my son.” Shûm-ukîn listened to him and gave his maiden daughter, Ina-Esaggil-banat to Uballitsu-Gula, his son. He gave also one mina of silver, three female slaves named, and house furniture, with Ina-Esaggil-banat, his daughter, as a marriage-portion to Nabû-nâdin-aḫi. Nanâ-kishirat, the maid of Shûm-ukîn in lieu of two-thirds of a mina of silver, her full price, Shûm-ukîn gave to Nabû-nâdin-aḫi out of the one mina of silver for her marriage-portion. The deficiency, one-third of a mina of silver, Shûm-ukîn will give Nabû-nâdin-aḫi, and then her marriage-portion is paid. Each took a writing.

Here the father negotiates for his son. There is no evidence of any bride-price being paid. But the examples of this kind of document are too few for us to establish any fixed conclusions. In the following case something very like it appears.

Negotiation with a mother for her daughter

Dâgil-ilâni, son of Zambubu, spoke thus to Ḥammâ, daughter of Nêrgal-iddin, son of Babûtu, saying: “Give me thy daughter, Latubashinni, she shall be my wife.” Ḥammâ listened to him and gave him her daughter, Latubashinni, to wife; and Dâgil-ilâni, in the joy of his heart, gave to Ḥammâ for Latubashinni, her daughter, Ana-eli-bêli-âmur, a maid, for half a mina of silver and a mina and a half of silver to boot. The day that Dâgil-ilâni shall take a second wife, Dâgil-ilâni shall give Latubashinni a mina of silver and she shall go back where she was before. With the cognisance of Shûm-iddin, son of Ina-êšhi-eter, son of Sin-damaku.

[pg 126]

Here the man himself negotiates. The mother gives the bride. Whether he really buys her is hard to say. The mother may have adopted the girl to care for her old age, as was often done. The bridegroom may have compensated the mother with means to adopt another daughter. What locus standi Shûm-iddin had is not clear. He may have been the real father of the bride and so had to be satisfied that she was fairly treated by the change in her position. Or his consent to the bridegroom's alliance may have been needed. The penalty set down for divorce is not high and the bride was probably poor; we see she was portionless. In other cases it was as high as six minas of silver. Occasionally the deed of marriage also named a penalty for adultery on the part of the wife.

Rôle of the contracting parties

Women were given in marriage. The suitor for her hand did not perhaps see her until marriage, but this is not likely, since he is contemplated by the Code as capable of having cast his eyes upon another, and so desiring to retreat from his suit. At any rate, he brought presents to her father, who accepted or rejected him. There is no hint that the woman had any choice. The result of this power over the child's marriage was that conditions might be imposed on the marriage. The bride might be required to do service to an existing wife, or to the bridegroom's mother. Further, the disposal of property was not entirely free after marriage. It depended upon what the father had laid down in the marriage-settlement on his daughter. It was strictly limited to the woman's children, and if there were none it went back to her father's house.

Giving away the bride

In early times, the father usually gives the bride. But in a great many cases this duty fell on the mother. How this came about we do not usually know. The father being dead, or the girl illegitimate, seem the best explanations, as a rule. [pg 127] In the absence of father and mother, the brother as head of the family assumed the duty. The examples of this are common enough.

For later times also the examples are numerous of the power of agnates to give in marriage. It may perhaps be deduced that the children, in these cases, were young.

Widows free to dispose of themselves

Women once married, were free to marry again of their own choice, whether divorced, separated, or widowed. A betrothed girl, or bride, if her marriage were not yet consummated, being seduced by her father-in-law, in whose house she had gone to live, was also free to marry. But it does not seem that women who were yet virgins could choose their own husbands. Even princesses were given in marriage.

Consent of bridegroom's father or guardian requisite for a legal marriage

The man was not altogether free to marry. The Code contemplates a boy left by the death of his father too young to marry. The brothers, when they divided the father's property, were bound to set aside for him, in addition to his share of his father's property, a sum for a bride-price, and take him a wife. It seems probable that men married while still young and living at home. For the Code contemplates the bride being brought to live in her father-in-law's house.

In later Babylonian times, at any rate, the son could not marry without his father's consent. This we learn from a suit in high life, in the time of Cyrus. A high official of the king's, A, brought a suit against B, who was “over the house,” before the nobles and the king's judges. A accused B and C, an official of his house, of having given a tablet of marriage-contract of D, a sister of C's, to A's son without A's consent. Put to the oath, B swore that he did not seal the tablet. Then D was questioned. Then C acknowledged that he had drawn up and sealed with B's seal the [pg 128] marriage-contract of D to A's son. The judges ordered D to return to her brother's house. The tablet was to be broken whenever found. If afterward D should be seen with A's son, she was to bear the sign of a concubine.

The court of registration

From other examples the conclusion is inevitable that if a woman desired to be a full and proper wife she had to obtain the consent of her bridegroom's father. Thus we read: “The day that the woman A is seen with B he shall bring her to the wedding-house. If she does not say to the master of the wedding-house: Send for C, the father of B, then she shall wear the sign of a concubine.” Her mother was present at the sealing of this agreement. From this we may deduce that weddings took place at a definite spot, called the “wedding-house.” The name was literally “house of the males,” or “of the named ones,” and also house of the mâr bânê, or “sons of ancestors.” It is clear that this was a registration court where all who had pretensions to ancestry, or were people of position, were enrolled. One whose name was found there was a man “with a name,” also a “son of an ancestor.” He was probably registered there at birth, marriage, and death. The master of that house was a registrar and evidently could marry people. It was expected in this case that the woman, if she wished to be properly married, would send for the bridegroom's father, whose consent was necessary. Another name for the house was bît pirṣatum, the meaning of which is obscure. But as Ishtar was bêlit parṣê, the “lady of the parṣê,” we may connect it also with weddings.

The bride's dowry

We have seen that the terḫatu, or present made to the parents by the suitor before marriage, was usually handed over to the bride on her going to her husband's house. There is frequent reference to this essential preliminary. It had to be carefully laid aside for the young man by his [pg 129] mother or brethren, if he had not married in his father's lifetime, and was secured to him by law, apart from and above what might come to him as a share of his father's property. Otherwise he would suffer loss in having to find it out of his own pocket, when his married brothers had been provided with the means during their father's lifetime. Usually it was an amount of silver, one shekel up to three minas. In later Babylonian times there is little evidence of the parents receiving gifts. We now and then find it so. Thus a man gave a slave and a mina and a half of silver for his wife to her mother, but it is not clear whether or not this was to buy her.

Her marriage-portion

A far more valuable endowment of the bride was her marriage-portion. If her father was not alive to give it to her, the duty fell on his heirs, and she had a right to it over and above her daughter's share of his property. Thus we find that the brothers, on giving their sister a share, contract to further endow her if she marries.

Her trousseau

We have one or two lists that show what might be expected as a trousseau by a Babylonian bride. One which illustrates the Code extremely well, narrates first what had been given a notary and NU-BAR of Marduk by her father on her taking her vow and entering the temple of Anunitum. This was his “grant” to her and was known by the same name as the marriage-portion of a bride. It included half a shekel of gold for a nose-ring (?), two shekels of silver as a finger-ring, another ring of silver of one shekel, one malumsa, three cloaks, three turbans, one small seal worth five minas, two jewels of unknown character, one bed, five chairs, five different sorts of things apparently made of reeds, the concubine Suratum, her step-mother. Unfortunately many of these renderings are still quite conjectural. It is interesting to note that the father left to his [pg 130] daughter his concubine, who was probably a slave, and possibly really the girl's mother. But now this girl is about to marry and her own mother, Shubultum, at any rate, her father's full wife, together with her brothers and sisters, give her all this property and cause it to enter her husband's house. They had a reversionary right to her property, since as a votary she could not alienate it from her family. So now they waive their right, as it will after her marriage pass to her children, if she has any. So they are said to “give” her what her father had already “granted” her. Further, they return to her husband the terḫatu, of one-third of a mina of silver, which he had presented to them. The marriage-portion could not be reclaimed by the wife's family at her death if she had children. If she had none, it went back to her family.

Nature of the marriage-portion

Another long list, also a “grant” to a votary, is found in two documents which contain apparently a complaint of oppression made to the king. Neither is sufficiently complete to be decisive as to the purpose of the letters or reports which are written in the first person. But they are duplicates as far as they preserve the list and in many other long phrases. Here is the list:

Four ... of gold, two rings ... each of them one ... two dishes, carved with karakku birds, one dish carved as a lion, whose head is of AB wood, and its border of KU wood, one chair of KU wood, three chairs (of different makes) of AB wood, one oil-pot, šalla, one oil-pot containing two hundred ḲA of Carchemish work, one mixing-pot of copper, one dupru kanku containing thirty ḲA, two kundulu of copper, one ... two ..., one for ...

Although this list is full of words of which the meaning is obscure as yet, one can see the main drift of it, jewelry, household furniture, pots and pans, and whatever went to [pg 131] the domestic equipment of the house. It is of interest to note that already Carchemish was celebrated for its wares.

With these lists may be compared the Tell-el-Amarna lists given in transcription, with a few hints at translation, by Dr. Winckler. They are lists of presents sent by a king of Egypt to a king of Babylon; by Dushratta, King of Mitanni, to Nimuria, King of Egypt, as the marriage-portion of his daughter, Taduḫipa, and another list of her dowry. The greater part of the names of these articles defy translation.

Later usage

During the Fourth Dynasty of Babylon, the celebrated Michaux Stone records the gift of lands by a father to his daughter on her marriage. From Kassite times we have a list similar to the above, but not easily translatable. The supposed examples of dowry in Assyrian times are not really such. But in the later Babylonian era the marriage-portion was still given by the father. It bears, however, the name nudunnu, once reserved for the husband's free gift to his wife. The nudunnu, in one case, is ten minas of silver, four maid-servants, house-furniture, and the like. It might include sheep and oxen. See also the later Babylonian laws about the marriage-portion. A long list might be made out from these sources of the house-furniture, but as before we do not know what half of the terms mean.

Payment of the marriage-portion

There are many examples of receipts given for the marriage-portion received in full. Sometimes it was merely promised. It was not always paid promptly. Law C made a note of this. The father might have promised a portion, and even given a deed of gift for it to his daughter. But if his means have diminished he cannot be held to a literal fulfilment of the promise. He may do what he can. The [pg 132] law adds significantly that “father-in-law and son-in-law shall not oppress one another.” We find that actions were frequently brought to obtain a marriage-portion. We have an instance where the payment was withheld for nine years.

Wife's pin-money

A husband might make a settlement on his wife. In the time of the Code this was called a nudunnu. It had to be by deed of gift. It might cover income-producing estate as well as personal property. But it was hers only for life. She could leave it as she chose among her children of the marriage, but not to members of her own family. We may regard it as pin-money. Her husband's heirs could not disturb her possession of it as long as she lived. But she forfeited it, if she married again.

The period of betrothal

The betrothed maiden did not at once leave her father's house. This we learn from the Code, which enacts a penalty on one who should seduce a betrothed maiden living in her father's house. It seems that on both sides betrothal took place in early life and that the arrangements were in the hands of the parents. A father was expected to take a wife for his son.

The wedding-ceremony

Neither the Code nor any contracts throw light upon the marriage-ceremony, but a tablet published by Dr. Pinches in the Proceedings of the Victoria Institute, 1892-93, reprinted as “Notes on some recent discoveries in the realm of Assyriology,” contains certain suggestions. It is very fragmentary and in the form of an interlinear translation from the Sumerian. It is not always clear who are the actors referred to, but we may perhaps take it that the officiating ministers, priests, or elders, first placed their hands and feet against the hands and feet of the bridegroom, then the bride laid her head on his shoulder and he was made to say to her: “I am the son of nobles, silver and gold shall fill [pg 133] your lap, you shall be my wife, I will be your husband. Like the fruit of a garden I will give you offspring.” Then there is a wide gap. But in the next column we seem to have a further part of the wedding-ritual. The officiating ministers ceremoniously bound sandals on the feet of the newly wedded pair, gave them a leather girdle (? or strap) and fastened to it a pouch or purse of silver and gold. The further ceremony included placing them somewhere in the desert. Then turning their faces to the sunset and addressing the man, the minister says: “I swear by the great gods and you may go.” He bids him not to put off the garment of Ea, nor something belonging to Marduk of Eridu. Then comes a wide gap, but the fourth column seems to read “until you have settled in the house, until you have reached the city, eat no food and drink no water, taste not the waters of the sea, sweet waters, bitter waters, the waters of the Tigris, the waters of the Euphrates, waters of the well, nor waters of the river, to fly up to heaven direct not your wings, to burrow in the earth set not your dwelling. As a hero, the son of his god, let him be pure.”

The passage is very difficult and much of the rendering is conjectural, but the point of the address seems to be that the young man was to go straight home, live with his wife, and be good, as a true child of God. The first column seems to be an enumeration of men who are cursed with misfortunes, for example, “one whom his mother brought forth with weeping,” and perhaps forms part of a prayer that the bridegroom may not ever be like such men. We must hope some day to find a fuller text and so to determine the connection of the various columns. But it is difficult to imagine what else the text can be than part of a wedding-ceremony.

The first home

The young couple did not always set up a house of their own; they often went to live with the bridegroom's father. [pg 134] This is shown by the penalty fixed by the Code for the seduction of a daughter-in-law by a father-in-law. The daughter-in-law was living in his house.

Monogamy prevalent in early days

In the earlier days monogamy prevailed. A man ordinarily had one wife. Polygamy, however, was not unknown. For a variety of reasons men did sometimes have two wives, but these cases were treated as exceptions. A man might also have a concubine or a slave-girl to bear him children. These did not bear legitimate children. He might adopt them, but was not bound to do so. If a man married twice, the children of both marriages shared equally in his possessions; but they did not put their mothers' marriage-portions into a common fund and divide that equally. The children of the first wife divided among themselves their own mother's marriage-portion, and the children of the second marriage did likewise.

Polygamy in later times

In Assyrian times there is clear evidence that among the slaves and serfs, at least, polygamy was fairly common. In the later Babylonian era polygamy also existed. Wives might be sisters. We read of a “second wife.” But taking a second wife was held to be a slight upon the first, in whose marriage-contract the clause was inserted that in such a case the husband must pay her a mina of silver and allow her to go back to her father's house. In that case the man was hardly bigamous. It was a case of divorce, and perhaps a legal ceremony before judges was also necessary.

Concubinage

A man might form a connection with a woman other than his wife. A concubine was a free woman, but had not the status of a wife; nevertheless she might bring with her a marriage-portion, over which she had the same rights as [pg 135] a legal wife. She was taken into the same house as the wife, but she might not rival her. A man's excuse for taking a concubine was that his wife was childless. He was not allowed to take a concubine, even if his wife was childless, if she gave him a maid to bear him children. Only when the wife was herself childless and would not allow him a maid, was he allowed to bring a concubine into his house. This second wife was married to him. She often seems to have been bound to serve the first wife and treat her as her mistress. But she had the same rights as a wife. If she were put away, the husband had to return her marriage-portion, if she had any. She had the usufruct of house, field, and goods. She was not deprived of her children, but had the custody and education of them. When they entered into possession of their father's property, she shared with them, taking the same share as a child. Then she was free to marry again. It seems that in any case, the children of a concubine were full children and with the same standing as the children of the first wife. The father might dower his daughter for a concubine; she then had no claim to share with her brothers and sisters at his death. But, if her father had given her no marriage-portion, her brothers must give her one at the division of his property.

The maid as the wife of her master

The case was different with the maid—a slave who by her mistress's consent bore children to her master. She was still a slave and if she rivalled her mistress, or was impertinent to her, she could be put back again among the slaves; perhaps even branded. But, if she had borne children, she was not to be sold as a slave. At the death of her master she was free. Her children by him were free in any case. If her master were so minded, he might make them full sons by verbal acknowledgment. It was enough to say, “my sons.” But that he had done so probably had to [pg 136] be proved by a witness. A family unacknowledged by the father would on his death have only a mother. In such a family the mother was the obvious ruler. We must be on our guard against mistaking her position, or that of the concubine above, for examples of matriarchy. If she was pledged for debt, she could not be sold, she must be bought back.

Marriages and inheritance among slaves

That a slave usually was married to a slave-girl with his master's consent and even by his direction is quite the rule. Masters even went so far as to buy a slave-girl to be wife to a slave. There is no reason to think that the master did not respect the slave's matrimonial rights. But the slave's wife was not always owned by the slave's master. Sometimes she was owned by a different master, or was free. There was no especial disgrace attaching to becoming the wife of a slave. A free woman might not only marry a slave, but bring with her a marriage-portion, as if she had married in her own rank. The man had no ancestral property, he was “a son of no one.” Hence when he died all the property to be divided consisted of what the married couple had acquired together, and the wife's marriage-portion. To the latter she had full and unquestioned right. The master was his slave's heir. So the property which the pair had acquired during their married life was divided into two equal portions. The master took one half, the wife the other for herself and her children. The children were all free. When both father and mother were slaves, so were the children. There was no property then for the slave-children to inherit.

Data from the contracts

Some further evidence from the contracts is worth noting here. Documents relating to marriage are not very common and may have owed their presence in the archives to some peculiarity in their form. Some are perhaps rather a [pg 137] memorandum that the proper formalities have been complied with. Thus we read that “A has taken to wife B, the daughter of C, from C and D his wife, and has paid ten shekels as terḫatu to C, her father.” The rest is lost. If it only laid down the penalties for infidelity on either side, this was quite normal.

Fatherless girls

Whenever the mother alone appears, as giving her daughter in marriage, we may suspect that the father was dead, or the mother divorced. When the mother is a votary, we know that such a person was not entitled to have a daughter at all, and hence we are not surprised that the terḫatu offered for the girl is small, five shekels or even one shekel. So the penalty laid upon the man for divorcing such a wife is only ten shekels. On the other hand if she was unfaithful she was to be drowned.

The marriage of votaries

Very singular are the cases in which a votary marries. We know from the Code that this sometimes took place; but the votary seems to have been expected, though married, to keep her vow of virginity. In one case we read that a woman first devotes her daughter, ullilši, then marries her, and declares at the same time that she is vowed, ellit, and that no one has any claim on her.

Power of agnates

Marriage of a king's daughter

In some cases a sister had the power to give her sister in marriage, with the declaration that no one has any claim on her. We may imagine the sisters orphans, without brothers. The name of their father is, however, given; and his sons and daughters are mentioned. It seems to be closely parallel to the case of the marriage of a king's daughter where a sister also gives a sister in marriage. Here Elmeshu, daughter of the king Ammiditana, is given in marriage by Zirtum, also daughter of king Ammiditana, on the order of her brother, Shumum-libshi. The bridegroom [pg 138] was Ibku-Anunitum, son of Shamash-limir and Taram-shullim, his wife. The parents paid for their son only four shekels as terḫatu, which Shumum-libshi and Zirtum received. If the bridegroom repudiated his bride, he had to pay half a mina. It is not clear what penalty the bride had to pay if she repudiated her husband. This is dated in the reign of Ammiditana; but in which year of his reign does not appear, as the traces of the year-name do not agree with any in the Chronicle. It must then have fallen somewhere between the seventh and the twenty-second years. Hence the father of the princess was alive at the time. Why had he no hand in the marriage? The history of the reign is not very well known. Perhaps he was away from home. His son and successor, Ammizaduga, whom we may imagine to have been the eldest son, does not appear in the case. Perhaps he also was away. But it is remarkable that the king never does directly take part in any contract. That is probably due to his sacred character. The young princess was not treated with overmuch consideration, judging by the smallness of her dowry.

Marriage of two sisters to one man

We have a very singular case in the marriage of two sisters to one man. This has already been translated and commented upon by Meissner, Pinches, and Sayce. It is, however, too important to omit here. There are two tablets concerned with it. The first is the contract between the husband and his wives. We may render it thus:

Ardi-Shamash took to wife Taram-Saggil and Iltâni, daughters of Sin-abushu. If Taram-Saggil and Iltâni say to Ardi-Shamash, their husband, “You are not my husband,” one shall throw them down from the AN-ZAG-GAR-KI; and if Ardi-Shamash shall say to Taram-Saggil and Iltâni his wives, “You are not my wives,” he shall leave house and furniture. Further, Iltâni shall obey the orders of Taram-Saggil, shall carry her chair to the temple of her god. The [pg 139] provisions of Taram-Saggil shall Iltâni prepare, her well-being she shall care for, her seal she shall not appropriate (?).

Then follow ten witnesses, but no date.

The second document seems to be drawn up rather from the point of view of the sisters. We may render it thus:

Iltâni, the sister of Taram-Saggil, Ardi-Shamash, son of Shamash-ennam, took to wife, from Uttatum, their father. Iltâni shall prepare the provisions of her sister, shall care for her well-being, shall carry her chair to the temple of Marduk. The children which she has borne, or shall bear, shall be their children. [If Taram-Saggil] shall say to Iltâni, her sister, “you are not my sister” [the penalty is lost]. [If Iltâni shall say to Taram-Saggil her sister], “You are not my sister,” one shall brand her, and sell her. If Ardi-Shamash shall say to his wife, “You are not my wife,” he shall pay one mina of silver; and if they say to Ardi-Shamash their husband, “You are not our husband,” one shall tie them up and throw them into the river.

Here there are eleven witnesses, but again no date.

Meissner deduces from the mention of children that Taram-Saggil was already married. The exact relation between the sisters is not clear. In one case they seem to be daughters of Uttatum, in the other of Sin-abushu. Or it may be that Iltâni alone was daughter of Sin-abushu. If so, perhaps Uttatum had adopted her. Sayce clearly thinks so. But they might be daughters of the same mother by different fathers, one of whom is mentioned in one case, the other in the other. Or they might really be children of Sin-abushu, if their mother afterwards married Uttatum, who was thus their step-father. It is clear that Iltâni was to wait on her sister, and, if she repudiated her, was to be treated as a slave. This is exactly parallel to the status of the slave-maid, whom a wife or votary in the Code provided for her husband. Perhaps Taram-Saggil had become a chronic invalid. A comparison of the two [pg 140] texts is interesting in other respects. The penalties differ curiously. If Ardi-Shamash repudiates his wives, in one case, he loses house and furniture; in the other case, he pays one mina. Was one the penalty for repudiating Taram-Saggil, the other for repudiating Iltâni? But if they repudiate him, the penalties are different in the two documents, unless indeed the AN-ZAG-GAR-KI be an ideogram for the “steep place” from which they were to be thrown into the water.

Marriage with attached conditions

Marriages are not infrequent which impose conditions upon the husband and wife with relation to outside parties. Thus a mother gives her daughter in marriage to a man, on condition that she shall continue to support her mother as long as she lives. In this case, if the husband put away his wife, he was to pay one mina of silver; while, if she hated her husband, she was to be thrown from a pillar, dimtu. This pillar may be the real meaning of the AN-ZAG-GAR-KI, which looks very like an attempt to express zigguratu, a tower, in an ideographic way. A very similar case is where a lady takes a girl to be wife to her son but stipulates that the wife shall treat her as mistress. If she shall say to her mother-in-law, “Thou art not my mistress,” she shall be branded and sold. As long as the mother lives, they two together shall support her. One may suspect that such maternal power, as is here shown over the children, arises from their having been adopted by their mother in order to provide for her in her old age. This was often done. The children may have been slaves before adoption. In the second case, the mother leaves her son all she has, or may acquire.

[pg 141]

XI. Divorce And Desertion

Early regulations regarding divorce

Divorce is regulated by the Code. The Sumerian laws seem to regard the marriage-tie as dissoluble on the part of the man by an act of simple repudiation, accompanied by a solatium, fixed at half a mina. The wife, however, was punished by death for repudiating her husband. The Code limits the facility of divorce for the man and renders it possible for the woman to obtain.

Rights of a divorced wife

Divorce of either a wife or concubine involved her being given a maintenance. The divorced wife had the custody of her children, if any. They were not disinherited by the divorce. The divorced woman retained the marriage-portion which she had brought to the home. She had a share with her children in the divorced husband's property at his death. If he married again, the children of both marriages shared equally. She was also free to marry again, but apparently not until her children had come into their share of the late husband's property, therefore not during his life.

Grounds of divorce

Divorce was permitted on the ground of childlessness. The husband gave back to his wife all her marriage-portion. Also he had to give the bride-price which he had paid to her parents during his courtship, and which they had returned to him, as a rule, on marriage. If this bride-price had not been given, then he paid her a fixed sum of money; [pg 142] one mina, if he was a patrician, a third, if he was only a plebeian. A slave does not seem to have had the liberty of divorce.

Protection of the wife's rights

The wife might take a dislike to her husband and set her face to leave him and deny him conjugal rights. This was probably equivalent to desertion. Then a judicial inquiry was required. If his ill treatment or neglect was made clear and she was blameless, a divorce was granted. She took her marriage-portion and went back to her family. But as this was of her own seeking, she received no alimony. It is assumed that it was an unhappy marriage from the first and that there were no children.

If it were proved that she was a bad wife, she was treated as an adulteress and drowned. On the other hand, even if she were a bad wife, the husband might repudiate her simply without paying any price for divorce. In this case there was no suspicion of her infidelity. Or the husband might degrade her to the position of a slave. There is no mention in these cases of a return to her father's house.

Chronic illness on the part of a wife was not a ground for divorce. The husband had to maintain her. He might, however, take a second wife. If she did not care to remain in his house in such conditions, she could leave him, take her marriage-portion and return to her family.

Illustrations from the contracts

We have already seen that the Code regulates the questions arising out of divorce. The examples at this period are but few. In one case a man put away his wife and she received her price of divorce. It is expressly stated that she may marry another man and her former husband will not complain. This document is, however, little more than an agreement to abide by the terms of the divorce.

[pg 143]

In another case a marriage-contract names the penalty a man shall pay for divorcing his wife. In all these cases the word for divorce, ezêbu, is literally “to put away.” But a man divorced his wife by the simple process of saying, “You are not my wife.” He then paid her a fine, returned her marriage-portion and so on, as laid down in the Code. It was far harder for a woman to secure a divorce from her husband. She could do so, however, but only as the result of a lawsuit. As a rule, the marriage-contracts mention death as her punishment, if she repudiates her husband. The death by drowning is usually named. This was in accordance with Law V. of the Sumerian Code.

We may regard repudiation of husband and wife, one by the other, and desertion as leading to divorce; and therefore these may be appropriately considered next.

Involuntary desertion

Desertion of a wife by her husband might be involuntary. The Code deals with the case of a man captured by the enemy. If the wife were left at home well provided for, she was bound to be true to her absent husband. If she entered another man's house, she was condemned to death as an adulteress. But if she was not provided for, she might enter another man's house without blame. There she might bear children. But, if so, she yet had to go back to her original husband on his return. The children she had borne in his absence were to be counted to their real father. That the law provides for such cases points to the existence of frequent wars, in which fortune was not always on the side of Babylonia.

Voluntary desertion

But the husband might desert his wife voluntarily. Then, if she was left unprovided for, the wife might enter another man's house. The errant husband, when he returned, could not reclaim his wife.

[pg 144]

We have a legal decision in a case where a man had deserted his wife for twenty years and “left her to her fate, did not love her.” During this time a daughter, whether real or adoptive we are not told, took care of her mother. To her the mother left property, among other things, a slave. The mother being dead, the truant husband returned and claimed the slave from the daughter. He was nonsuited.

Among the provocations which gave the wife cause for divorce was the “going out” of the husband, probably a euphemism for adultery on his part. Belittling his wife was another ground for her complaint. What this means is not quite clear, but we may regard it as persistent neglect.

[pg 145]

XII. Rights Of Widows

The authority of the widow in the home

The Code makes clear what was the position of the widow. She had a right to stay on in her husband's house until she died, but was not compelled to do so. If she remained, she was the head of the family. To her the young sons looked to furnish them with means to court a wife, and the daughters for a marriage-portion. She acted in these matters with the consent and assistance of her grown-up children. But she might elect to leave the home and remarry.

Rights of inheritance

As long as she remained in her husband's home she enjoyed to the full whatever she had brought there as a marriage-portion, whatever her husband had settled upon her, and also received a share from her husband's goods at his death. The widow's share was the same as a child's. But she had no power to alienate any of these possessions. The Code expressly declares that they were her children's after her. The children had no power to turn her out. If they desired her to leave, the matter came before the law-courts, and her private wishes were consulted. If she wished to remain, she might do so, and the judge bound over the children to allow her to do so.

Later usages

A very clear example of the permanence of the Code regulations on this subject meets us in the fifth year of Cambyses. Ummu-tâbat, daughter of Nabû-bêl-usur, wife [pg 146] of Shamash-uballiṭ, son of Bêl-ebarra, a Shamash priest, who was dead, whose sons were Shamash-eṭir, Nidittum, and Ardi-Ḥar, swore to Bêl-uballiṭ, priest of Sippara, saying, “I will not remarry, I will live with my sons, I will bring up my sons to manhood, until they are numbered with the people.” On the day that Ummu-ṭâbat remarries, according to her bond, the property [of her late husband] which is in the possession of Bêl-uballiṭ, the priest of Sippara, [she shall forfeit]. The tablet is defective here, but on the edge of the tablet we see that the care of her sons was given her. To remarry is expressed here by the words, “going into the bît zikari.”

Remarriage of a widow

A widow could remarry at her discretion. She no longer had to be given in marriage. She was free to marry the man of her choice. She might take with her her marriage-portion to her new home, but she had to leave behind any settlement which her former husband had given her, or any share of his goods that had come to her at his death. Her family were not called upon to find any fresh marriage-portion for her. But she was not completely mistress of even her marriage-settlement. If she had children of the former marriage, they and any children of her second marriage shared her marriage-portion equally. Only she had the enjoyment of it for life. If there were no children of the second marriage, those of the first took all she left.

Disposal of her first husband's property

We have assumed that when her husband died her children were old enough to care for themselves. If they were not, she had no power to enter upon a second marriage and desert her first family. She was not free to marry at all without consent of the law-court. But there is no evidence that this could be withheld, if proper conditions were observed. The first husband's property was inventoried and consent for the second marriage being granted, she and her [pg 147] new husband were bound by deed to preserve the whole estate of the late husband for his children. With that proviso, the newly married pair entered into full use of the deceased's property and were bound to educate the children until grown up. They had no inducement to neglect them, as in any case none of the deceased's property could ever be theirs. If the children died, it would all revert to the family of the deceased. The newly married pair had no further interest in it than the enjoyment of it until the children could manage for themselves. They could not alienate any of it. The sale of even a utensil was not possible.

[pg 148]

XIII. Obligations And Rights Of Children

Absoluteness of the paternal power over the family

It is customary to say that the father had absolute power over his children, but it is better to state only what is known with certainty regarding the extent of his power. The father could treat his child, or even his wife, equally with a slave, as a chattel to be pledged for his debts. We may therefore conclude that he could sell his child. An actual example cannot be cited from early times, but they are very common later.

The son was not capable of entering into an independent contract with an outside person. We may assume that this means simply while yet living in his father's house. The father had rights over what his son earned. A man could also hire out his child and take the wages.

His power of preference

The father had the right to prefer one son above the rest. He could endow him with house, field, and garden. But this must be done in his lifetime and by written deed. This gift did not in any way affect the son's claim to inherit equally with his brethren on the father's death, when he took a full share over and above what he had by gift.

His control of his daughters

The father had full power to dispose of his daughters in marriage. But he was expected to furnish them with a marriage-portion. This was not obligatory, being probably a matter of negotiation with the parents of the bridegroom. In later times the obligation evidently became irksome and [pg 149] oppressive, and Law E was passed to relieve the strain. A father was bound to do his best to fulfil his promise to dower his daughter, but no more. A father could not hinder his daughter from becoming a votary. If he approved her choice, he might give her a portion, as if for marriage, but he was not compelled to do so. A father could give his daughter to be a concubine.

The father's consent was also needed to his son's marriage. He had to provide the youth with a bride-price, and secure a wife for him.

The age of majority

It is not easy to determine when children ceased to be under the paternal power. Betrothed daughters remained in their father's house; so did married sons sometimes. Whether the birth of a child, making the young man himself a father, freed him as head of a family, or whether it was entering a house of his own, we cannot yet say.

Punishment of unfilial conduct

The Sumerian laws are very severe upon a child's repudiation of a father. That degraded him to the status of a slave. He might also be branded. Obviously he was disinherited. The repudiation is expressed in the words, “You are not my father,” but it may be intended to cover all unfilial conduct. The Code is more explicit. If a son struck his father, his hands were cut off.

Disinheritance

The Sumerian laws preserved the father's rights to disinherit the son by a simple repudiation, saying, “You are not my son.” The son then had to leave house and enclosure. The Code limits this power. It insists on legal process and good reason alleged. Also it was not allowed for a first offence on the son's part.

Relations of mothers and sons

The mother was in much the same position of authority as the father. A son who repudiated his mother was branded and expelled from house and city. He was not, [pg 150] however, sold as a slave. The Sumerian laws also reserved to the mother the right to repudiate her son, and he must quit house and property. The Code gives no such power to mothers. Indeed, we find examples of a son disputing with a mother. Mothers took up the father's place toward the children on the death of the father as regards marriage-portions, bride-price, and other family affairs. But they usually acted in concert with the elder children.

Duties to adoptive parents

The repudiation of adoptive parents was a very grievous sin, especially on the part of those who were children of parents who were forbidden to have children. Something worse than illegitimacy was their lot. The penalties of having the eye torn out, or the tongue cut out, show the abhorrence felt for their ingratitude.

[pg 151]

XIV. The Education And Early Life Of Children

Number and importance of scribes

Much has been made of the knowledge of writing shown by the Babylonians and Assyrians. The ability to draw up deeds and write letters seems at first sight to have been widely diffused. In the times of the First Dynasty of Babylon almost every tablet seems to have a fresh tupšar, or scribe. Many show the handiwork of women scribes. But most of the persons concerned in these documents were of the priestly rank. There is no evidence that the shepherds or workpeople could write. In the Assyrian times the scribe was a professional man. We find aba or tupšar used as a title. So, too, in later Babylonian times. The witnesses to a document can only be said to sign their names in so far as that they impressed their seals. This was done, at any rate, in early times. In the Assyrian period the only parties who sealed were the owners of the property transferred to a new owner. The whole of a tablet shows the same handwriting throughout. Anyone who reads carefully through the facsimile copies in Cuneiform Texts can readily see this. Different scribes, especially in early times, wrote differently, but this was still the case in Assyrian days. Yet no change of hand can be noted anywhere in one document, save where, as in the forecast tablets, a date or note was added by a different person, often in Assyrian script, to a text written in Babylonian. The only safe [pg 152] statement to make is that from the earliest times a very large number of persons existed, at any rate in the larger towns, who could write and draw up documents.

Sumerian words and expressions in the legal literature

The use of Sumerian terms and phrases in the body of a document written in Semitic Babylonian might be ascribed to a mere tradition. But they were no meaningless formulæ. The many variations, including the substitution of completely different though synonymous words, show that these Sumerian phrases were sufficiently understood to be intelligently used. In later times they either disappear altogether, or are used with little variation. They had become stereotyped and were conventional signs, doubtless read as Semitic, though written as Sumerian. Our own retention of Latin words is a close parallel. The First Dynasty of Babylon was bilingual at any rate in its legal documents, though the letters are all pure Semitic. The earlier documents show few signs of Semitic origin, though its influence can be traced as far back as we can go.

Schools

The discovery at Sippara of a school dating from the First Dynasty of Babylon is very fully worked out by Professor Scheil in Une Saison de fouilles à Sippara, pp. 30-54. Professor Hilprecht gives further details in Explorations in Bible Lands, pp. 522-28 and passim.

The methods of learning to write and the lessons in Sumerian are well described by these authors, and illustrated by numerous extant examples of practice-tablets. The subjects were very numerous and included arithmetic, mensuration, history, geography, and literature. As Dr. Pinches has shown by his edition of some of these practice-tablets, these contain very valuable fragments of otherwise lost or imperfectly known texts.

Apprenticeship

Slaves were often bound as apprentices to learn a trade or handicraft. A man might adopt a child to teach him his [pg 153] trade, and his duty to him was sufficiently discharged by doing so.

Naming of children

We do not yet know in any authoritative way, when or with what ceremonies children were named. In the case of slaves we have a boy, still at the breast, or a girl of three months, not named. On the other hand, a girl still at the breast is named. Hence Meissner concludes, that at the end of one year, at latest, the child was given a name. But the usage with respect to slaves is hardly a rule, and, as appears from the above, they were not consistently named.

Rearing of babies

A child seems often to have been put out to nurse. From the phrase-book we learn that a father might “give a child to a wet-nurse to be suckled, and give the wet-nurse food and drink, oil for anointing, and clothing for three years.” That this was not only done with adopted children is clear from the Code; where we find a severe penalty laid on a wet-nurse, who substitutes another child for the one intrusted to her, without the parents' consent.

Number of children who could read and write

It will hardly do to interpret the phrase-book as meaning that all children were made to learn writing. But that this was commonly done is evident from the number, both of men and women, who could act as scribes.

[pg 154]

XV. Adoption

Frequency and reasons for adoption

Adoption primarily means a process by which parents could admit to the privileges of sonship children born of other parents. There were many reasons which might impel them to such a course. If they were childless, a natural desire for an heir might operate. But under the Babylonian law a man might take a second wife, or a maid, if his wife were childless, to bear him children. A more operative cause was that children were a source of profit to their parents while they remained with them. But it seems that men married early. Hence this alone does not seem sufficient to account for the great frequency of adoption. Besides, in that case, what induced a parent to part with his child for adoption? It seems that the real cause most often was that the adopting parents had lost by marriage all their own children and were left with no child to look after them. They then adopted a child whose parents would be glad to see him provided for, to look after them until they died, leaving him the property they had left after portioning their own children.

Children who might be adopted

The Code admits all kinds of adoption, but regulates the custom. A man might adopt an illegitimate son, or the child of a votary or palace-warder, who had no right to children, or the child of living parents. In the latter case alone was the parents' consent necessary. We have examples of cases of adoption of relatives, of entirely unrelated [pg 155] persons, of a slave even. We learn from the series ana ittišu that a man might take a young child, put it out to nurse, provide the nurse with food, oil for anointing, and clothing, for a space of three years; and then have it taught a trade or profession, such as that of scribe.

The method of procedure

Adoption was effected by a deed, drawn up and sealed by the adoptive parents, duly sworn to and witnessed. Such contracts definitely state the relationship, which was in all respects the same as that of a son born in matrimony. But it laid down the obligations of the son, while it stipulated what was the inheritance to which he might expect to succeed. It brought responsibilities to both parties and fixed them. The son was bound to do that which a son would naturally have done, explicitly, to maintain his parents while they lived. The parents were bound, not only to leave him property, but to treat him as a son. But, as a rule, all was matter of contract and carefully set down. If such a contract was not drawn up, although the adoptive parents had brought him up, the child must return to his father's house. Only, for an artisan, it was sufficient to have taught the child his trade.

So far as our examples go, some color might be given to the suggestion that adoption was always merely for the convenience of old people who wanted to be taken care of. But we know that children were adopted on other grounds. That they were children and not always grown-up men and women is clear from the above. This we may regard as adoption pure and simple. Other cases are a legal method of making provision for old age, or for other purposes for which an heir as legal representative was desirable. In the case of no legal heir, the property went back to the next of kin.

[pg 156]

Adoption pure and simple

That such a process did take place in Babylonia is made clear by the Code. But few examples are known where a father takes into his family an additional child. The case, in which the son is not only adopted by parents who have a family living, but is ranked as their eldest son, deserves reproducing in full.

Ubar-Shamash, son of Sin-idinnam, from Sin-idinnam, his father, and Bititum, his mother, have Beltum-abi and Taram-ulmash taken to sonship, and let him be the son of Beltum-abi and Taram-ulmash. Ubar-Shamash shall be their eldest son. The day that Beltum-abi, his father, and Taram-ulmash, his mother, say to Ubar-Shamash, their son, “You are not our son,” he shall leave house and furniture. The day that Ubar-Shamash shall say to Beltum-abi, his father, or Taram-ulmash, his mother, “You are not my father or my mother,” one shall brand him, put fetters upon him, and sell him.

Both parents of the adopted son were living. That the son is to be reckoned eldest implies that the adopting parents had other children. This is made clear in one case where the adoptive parents are expressly said to have five children. In another case where a child is adopted a certain person is expressly said to be his brother.

Consent of other members of the family involved

The existing members of the family had a real interest in the proceeding. For, as inheriting with them, the addition of another son could not but affect their prospects. We may wonder what influenced them to consent. That they did consent is clear from the often-occurring covenant by which they bound themselves not to object. One explanation may be that they had grown up and left home and were anxious for the welfare of their parents, but could not arrange to look after them themselves. Hence for their parents' sake they were willing to forego their share, or submit to a stranger taking precedence of them, or in some cases to give up all claim to the property in their parents' [pg 157] possession in return for being relieved of the responsibility of looking after them. Of course, when the adopted son was only taken in as one, even the eldest, among several, he would only have a share at the parents' death. But it even seems that the children might of their own motion adopt a brother to be son to their parents.

Disinheritance of a son

The clause which implies disinheritance in case the parents repudiate the son, or he repudiates them, could only be enforced by a law-court. But it was nevertheless most regularly inserted in the contract. In one case the document merely consists of it, leaving us to infer that an adopted son was concerned. But this is not absolutely certain. The son might have been rebellious to his mother, who was therefore minded to cut him off, and this may be the result of her bringing her son before the judge. The judge was bound to try and conciliate the parties. Hence, not infrequently the son was bound over not to repeat the offence on pain of disinheritance, while the mother retained her right to disinherit. There was no mention of his being sold for a slave, or branded, as was usual when a son was adopted and then repudiated his parents.

According to the contracts entered into by the parties, parents could repudiate adopted sons. This was contrary to the law by which the consent of the judge was needed for disinheritance. It seems to be an attempt to contract without the support of the law. The son was then to take a son's share and go away.

Form of adoption

The word aplûtu, abstract of aplu, “son,” and therefore literally “sonship,” being also used to denote the relation of a daughter to a parent, came to denote the “share” which a son or daughter received. If a man adopted a son, he granted him an aplûtu, or “sonship,” and this carried with it a material property. But the father, while still living, [pg 158] might grant the son his aplûtu and stipulate for maintenance during the rest of his life. Such a grant begins with aplûtu ša B, where B is the son. But it by no means follows that B is an adopted son. The question is only decided for us when the parentage of B is given. If he is said to be the “son of C,” then we know that A giving him “sonship” must mean that A adopted him. But if B is merely indicated as the son of A, we cannot tell whether he was born to A, or only adopted by A.

Phrases which express the idea

So when the property given to B is in his power to dispose of later as he may choose, this privilege is expressed by the words, “he may give his sonship to whom he chooses.” The choice is sometimes expressed as “that which is good to his heart,” or “in his eyes,” or “whom he loves.” A modified choice is often mentioned, as when it is said that a votary may leave her “sonship” after her to whom she likes “among her brothers.”

Settlements which assume adoption

We have a large number of documents which make reference to the aplûtu of a certain person, which we can render here by “heritage.” These are especially common on the part of votaries. As we have seen, they were not supposed to have children of their own, but possessed the right to nominate their heir within limits. In return for exercising this right in favor of a certain person, they usually stipulated that such person shall maintain them as long as they live and otherwise care for them. Even outside actual deeds of heritage, we find references to property derived from votaries subject to certain duties. Such dispositions of property are closely related to a will or testament, but anticipate the death of the testator. They are really settlements for the future, which exactly answers to the title given them by the Babylonian scribes, ridit warkati.

The following example makes these details clear:

[pg 159]

The heritage of Eli-eriṣa, votary of Shamash, daughter of Shamash-ilu. Belisunu, votary of Shamash, daughter of Nakarum, is the caretaker of her future life. One-third GAN of unreclaimed land in Karnamkarum, next the field of Issurîa, one SAR house in Ḥalḫalla, next the house of Nakarum, one-third SAR four GIN in Gagim, one maid Shala-beltum, price ten shekels of silver, all this for the future in its entirety, what Eli-eriṣa, votary of Shamash, daughter of Shamash-ilu, has or shall acquire, she gives to Belisunu, votary of Shamash, daughter of Nakarum. Every year Belisunu shall give to Eli-eriṣa three GUR of corn, ten minas of bronze, and twelve ḲA of oil.

Precautions against suits

The aplûtu thus given was in many cases an alienation of property on which some relative had claims. Even where their consent was not necessary it was desirable that they should not involve the heir in legal processes. Hence, such relatives are called up to covenant that they will raise no objection to the heir's peaceable succession.

Duties of adopted child to parents' support

The obligation to support the adoptive parent is emphasized. The amount of sustenance varies much. Another list of yearly allowances reads one shekel of silver, woollen yarn, six ḲA of oil, four išinni Shamašh, ten ḲA of fat, one side, two GUR of corn. Many others could be instanced, but they make no great addition to our knowledge.

Service

The obligation might be service; as when a lady adopts a maid to serve her for life and inherit a certain house. In another case a lady adopts a son to bring up her daughter and give her to a husband. “If he vexes his adoptive mother, she will cut him off. He shall not have claim on any of the goods of his adoptive mother, but shall inherit her field and garden.” Evidently the mother intended her personal effects to be her daughter's and to form her marriage-portion. The obligation did not always last long. Thus we find that Lautum, who was adopted by a votary and was herself a votary, two years later was in a position to adopt as her daughter another votary. She handed on [pg 160] the same property, indicating that her adoptive mother was dead.

The adoption of a child by a lady of fortune was evidently a good settlement for the child, and usually the real parents raised no objection. We even find the father of a girl adopted by a lady, making an addition to her heritage in the form of a gift to the adopting mother on her effecting the deed of adoption. He gave them two male and two female slaves. Here also the girl covenanted to support the adoptive mother.

Punishment for neglect of these duties

Occasionally the adopted child did not carry out his duties. This was good ground for disinheriting him. But disinheritance was not to be inflicted without the sanction of the judges. Hence we find that when a lady had adopted a daughter who failed to give her food and drink, the judges summoned them to the great temple of Shamash in Sippara, there cut off the daughter from her heritage, took away the tablet of adoption granted her, and destroyed it.

Care of aged parents

A curious case is where A, the daughter of B and C, endows D to take care of B and C. As long as D lives A covenants to allow her so much. When she dies A will herself perform the duties. Here A evidently expected her parents would not live long, but also D must have been aged, or infirm, as A contemplates the chance of her parents outliving D. This is not a case of adoption, but is so similar in purpose to those above as to deserve a place here.

Inheritance rights

Occasionally, however, the adopting parent reserved the usufruct of the property for life only, fixing by deed the rightful heir. This was, in effect, a will or testament, since the inheritance did not take effect until after the death of the testator.

[pg 161]

XVI. Rights Of Inheritance

The division of an inheritance

The division of property among the children invariably followed the death of the father. We have a very large number of contracts bearing on this custom. The contract sets forth the particulars of the division and includes a sworn declaration on the part of the recipients to make no further claim. There were certain reservations to be made in the case of minors, for whom a portion had to be set aside to provide for their making the proper gifts to the parents of their brides on marriage.

Usage as illustrated by the contracts

The Code deals at length with the laws of inheritance, which are best treated under the head of marriage. The actual examples occurring in the documents of the period serve to illustrate the practical working of these laws, but hardly add to our knowledge. They are usually occupied with the division of property among brothers. Sometimes we have some light on the reservations made in favor of other members of the family. Thus two brothers divide the property of their “father's house” and of their sister, a votary. The sister did not take her property, but the brothers were trustees for her enjoyment of it during her life, when it reverted to them in full. The document merely states the amount of one brother's share and the other's agreement to be content with the division. In another case, where four brothers share the property of their [pg 162] “father's house,” no details of their shares are given, but only their agreement to abide by the division made. In another case the eldest brother allots to each of two younger brothers a share and takes a woman slave and her children as his portion. He is said to do this of his “own power,” ina emur ḳamanišu, and to have given them this of his “own graciousness,” ina tûbâtišu. The brothers swear to make no further claim on the “grant,” maršîtu, of their father. Either the property to which they were legally entitled had already been allotted them, or possibly they had no legal claim on any. The eldest brother is a high official, a pa-pa, and perhaps had succeeded his father in office. The father's property would then be the endowment of his office, a grant from the king, and as such inalienable from the office to which the eldest son had succeeded. The three slaves may have thus been all the private property of the father which was available for division. But the context seems to suggest that what the brothers received was a concession from the eldest brother on which they had no claim. He may in consideration of his succeeding to his father's appointment have made this concession to his brothers as a consolation. In another case a mother gives certain sums to her three sons. She had still left two sons and two daughters, and the first three agree to make no claim on all that she and these four children have or shall acquire. It is noteworthy that one of the three receives ten shekels as the terḫatu of the wife he shall marry. He was evidently not of marriageable age, or, at any rate, still unmarried. In such a case the Code directed that on partition of the father's property, a special sum should be laid aside for this necessary present to the bride's father. So we find two brothers giving a sister a share consisting of one-third SAR of a house, next her brother's, one maid, a bed and a [pg 163] chair, with the promise that on the day that she marries and enters her husband's house she shall receive further two-thirds GAN of land and slaves. The list of property is often given, especially where brothers give shares to their sisters. Sometimes the relationship is less close. Thus a man shares with two sons of his father's brother, i.e., with two cousins, ten SAR of unreclaimed land, taking three and a half SAR as his share. Sometimes the property included the mother's marriage-portion. Thus three brothers divide their property and two of them, as her sons, share their mother's marriage-portion:

Division of property between three brothers

One SAR of built land and granary, next the house of Ubarrîa and next that of Bushum-Sin, two exits to the street, the property of Urra-nâṣir, which he divided with Sin-ikisham and Ibni-Shamash. From mouth (?) to gold the share is complete. Brother shall not dispute with brother. By Shamash, Malkat, Marduk, and Sin-mubaliṭ they swore. Nine witnesses. Thirteenth year of Sin-mubaliṭ.

The property which fell to Urra-nâṣir was a house occupying one SAR of land. The text means not that the three men, Urra-nâṣir, Sin-ikisham, and Ibni-Shamash, divided the house among them, but that at the division this house was the share of the first named. What the two, Sin-ikisham and Ibni-Shamash, had as their share we are not here told. But the three agreed not to call in question the division of property, which probably came to them from their father or mother. Fortunately we know in this case what the others got. Thus we find:

One SAR of built land, (and) granary, next the house of Ibni-Shamash and next the street, its exit to the street, the property of Sin-ikisham, which he divided with Ibni-Shamash and Urra-nâṣir. From mouth (?) to gold the share is complete. Brother shall not dispute with brother. By Shamash, Malkat, and Sin-mubaliṭ they swore. Nine witnesses. Thirteenth year of Sin-mubaliṭ.

[pg 164]

And again:

One SAR of built land, (and) granary, next the house of Sin-ikisham and next the house of Ishtar-Ummasha, two exits to the street, the property of Ibni-Shamash, which he divided with Sin-ikisham and Urra-nâṣir. From mouth (?) to gold the share [is complete]. Brother shall not dispute with brother. By Shamash, Malkat, Marduk, and Sin-mubaliṭ they swore. Nine witnesses. Thirteenth year of Sin-mubaliṭ.

Thus we see that each brother, if they were brothers, obtained exactly the same share, one SAR of land on which a house was built. Two of them, Sin-ikisham and Ibni-Shamash, were next door to each other. Ibni-Shamash had the street on the other side of him, in fact, occupied a corner house. The third brother, Urra-nâṣir, had a house in another part of the town. We therefore must understand the word “divided” in the sense “obtained on division.” In the second and third case the word rendered share is literally “all.” But the first text shows that “all is complete” means “the share is complete.” The meaning of the expression, “from mouth (?) to gold,” is still obscure. It is not certain that bi-e really means “mouth.” But as Meissner has shown, it exchanges with the ideogram for “mouth.” He therefore suggests that the whole phrase means “from the first verbal discussion of the division to its consummation by payment the partition of the property is now at an end.” That seems probable enough, but we may yet find a different explanation. If this be correct, it is of interest to note that while silver seems to have been the usual money, this phrase seems to assume that gold would be used in payment. A curious parallel is the fact that while in later times we always find the order gold and silver, in Sumerian texts it is silver and gold. We must not press this too far, but it really looks as if in early [pg 165] times silver was more valued, or at any rate, less in use than gold.

It will be noted that the second text omits Marduk from the oath, while the others name him. The third text omits gamru, “is complete.” The nine witnesses and the date are the same for all three. In the first and last the names of the witnesses only are given, but in the second the name of the father is added to several of them.

The great difficulty of interpreting details in testamentary documents

In the case of testamentary documents, using the phrase in a loose way to cover gifts embodied in a deed, we usually find a list of property donated. These lists give rise to insuperable difficulties to the translator. The difficulties are not so much due to the imperfections of our knowledge of Babylonian methods of writing as to the practical impossibility of finding exact terms in one language for the terms relating to domestic furniture in another. Even in the case of languages so well known to us as French and German are, we are obliged to transfer their words unaltered into our own tongue. The most skilled translator must leave a French or German menu untranslated. We know for instance that the signs, GIŠ-GU-ZA were used to denote the Babylonian kussû. When a god or king sat upon a kussû we may be satisfied with the rendering “throne,” but when we find a lady leaving her daughter six kussê we feel that “throne” is rather too grand. But whether we elect to call them chairs, stools, or seats, we are guilty of some false suggestion. A careful examination of the sculptured and pictured monuments may give us a clearer idea of what seats were used. The reader may consult Perrot and Chipiez, or the dictionaries of the Bible, under the articles: chairs, couches, et cetera, for illustrations. Unless we can find a picture with a named article upon it we are still left a wide margin of conjecture. The picture of Sennacherib receiving the tribute and submission of [pg 166] Lachish gives the contemporary representation of a kussû nimedu, but we cannot argue that every kussû was of the same pattern.

We may decline to attempt a solution and merely give the original word, we may make a purely arbitrary rendering, or we may accompany the original word with an approximate indication of what is known of its nature. In neither case do we translate, for that is clearly impossible. But the reader needs a word of caution against the translations which show no signs of hesitancy. They are not indicative of greater knowledge, but of less candor. Further, to scholars a reminder is needed that even the syllabaries and bilingual texts do not give exact information. Thus alongside GIŠ-GU-ZA we find a number of other ideograms, all of which are in certain connections rendered kussû, adequately enough no doubt, but that they all denoted exactly the same article of furniture is far from likely. A closer approximation to an exact rendering may come with the knowledge of a large number of different contexts, each of which may shade off something of the rough meaning. One of the great difficulties of the translator is that the same word often occurs again and again, but always in exactly the same context. This is especially the case in the legal documents, filled as they are with stock phrases.

Disinheritance in the Sumerian laws

According to the Sumerian laws disinheritance appears to have been simply the result of repudiation of a child by a parent, who has said to him, “You are not my son.” The penalty for a child's repudiation of parents is to be reduced to the condition of a slave. There may also be a reference to renunciation on the part of an adopted child, but there are no legal documents to clear up the point.

In the Code of Ḥammurabi

The Code is much clearer. Here the father is minded to cut off his son. But the disinheritance must be done in [pg 167] legal form. The father must say to a judge, “I renounce my son.” The judge must then inquire into the grounds of this determination. A grave fault must be alleged. What this was we are not told. But rebellious conduct, idleness, and failure to provide for parents are probable. A parent had the right to his son's work. An adoptive parent had a right by the deed of adoption to maintenance. If the fault could be established as a first offence, the judge was bound to try and reconcile the father. If it was repeated, disinheritance took place legally. It was done by a deed duly drawn up. The Sumerian laws show that a mother had the same power as the father. Whether this was only exercised when there was no father, or whether a wife could act in this way independently of her husband in disinheriting children, does not appear. But possibly she had power in this respect only over her own property.

It has been suggested that disinheritance sometimes took place as a legal form and with consent of a child, in order to admit of his adoption into another family or to free the parents from responsibility for the business engagements of the son.

In the case of adopted children

An adoptive parent, who had brought up a child and afterwards had children of his own, could not entirely disinherit his adopted child. He was bound to allow him one-third of a child's share. But he could not alienate to him real estate.

[pg 168]

XVII. Slavery

The slave a chattel

In modern thought slavery concerns personal rights. But it was not thus regarded by the Babylonians, for the slave was an inferior domestic, and, like the son in his father's house, minor capitis. That he was actually a chattel is clear from his being sold, pledged, or deposited. He was property and as such a money equivalent. He might be made use of to discharge a debt, according to his value. Hence, while some account of slavery belongs with the discussion of the family, it is also a part of the section dealing with property, since the slave was a piece of property.

Rights of a slave

But the slave had a great amount of freedom, and was in no respect worse off than a child or even a wife. He could acquire property, marry a free woman, engage in trade, and act as principal in contract with a free man. Only, his property, at his death, fell to his master. He was bound to do service without pay, though he had the right to food and drink. He could not leave his master's service at his own will, but he might acquire enough property to buy his freedom. He was tied to one spot, not being allowed to leave the city, but might be sent anywhere at command.

Complexity of the evidence regarding slavery

His status was, however, a complex of seeming inconsistencies. Yet it was so well understood that we rarely get any hints as to the exact details. It is only by collecting a vast mass of statements as to what actually occurred [pg 169] that we can deduce some idea of the actual facts. Professor Oppert in his tract, La Condition des Esclaves à Babylone, Comptes Rendues, 1888, pp. 11 ff.; and Dr. B. Meissner, in his dissertation, De Servitute Babylonico-Assyriaca, have gathered together the chief facts to be gleaned from the scattered hints in the contracts. Professor Kohler and Dr. Peiser discussed the question thoroughly in their Aus Babylonische Rechtsleben. Many articles discussing the contracts, and most of the histories touch upon the subject. We shall come back to it later under the head of Sales of Slaves. It is very difficult to disentangle facts from the mass of scattered hints, often consisting of no more than a word or two in a long document.

Its very early existence

The institution of slavery dates back to the earliest times. We cannot in any way attempt to date its rise.

Already in the stele of Manistusu we find a slave-girl used as part of the price of land and worth thirteen shekels; while nine other slaves, male and female, are reckoned for one-third of a mina apiece. This remained a fair average price for a slave in Babylonia down to the time of the Persian conquest. For the variations, see later under Sales of Slaves. The Code shows that the slave was not free to contract except by power of attorney, and that it was penal to seduce him from his master's service, or to harbor him when fugitive. It fixes a reward for his recapture, makes it penal to retain a recaptured slave, and deals with his re-escape. It shows that he was subject to the “levy.” It also determines the position of a slave-woman who bears children to her master, or of a slave who marries a free woman. In each case the children are free. It fixes the fees to be paid by the slave's master for his cure, deals [pg 170] with injuries done to a slave, damages being paid to his master; enacts that if captured and sold abroad he must be freed, if re-patriated, and a native of Babylonia, otherwise he returned to his master.

Sale of slaves

By far the greatest number of references to the slave condition occur in documents relating to the sale of slaves. These may be summarized here. One peculiarity always marked the sale of a slave, it was not so irrevocable as that of a house or field. For a slave might not be all he seemed. He might be diseased, or subject to fits, he might have vices of disposition, especially a tendency to run away. A female slave might be defective in what constituted her chief attraction. Hence there was usually a stipulation that if the buyer had a legitimate cause of complaint he could return his purchase and have his money back. In fact, an undisclosed defect would invalidate the sale. These defects might be physical, inherent, contingent, or legal.

Diseases regarded as just cause for a repudiation of the contract to buy a slave

There seems to have been a dreaded disease called the bennu. Professor Jensen has shown how largely it bulks in the literature, and what dire effects are ascribed to it. But it was not the only severe disease from which men suffered then. It is associated with several others as bad. Hence in legal documents we may take it as a typical example of a serious disease, which would so detract from the value of a slave that the purchaser would not keep him. It is evident that it was something that the purchaser could not detect at sight. Perhaps it was a disease which took some time to show itself. It is mentioned in the Code and in the sales of slaves of the First Dynasty of Babylon. It also occurs in Assyrian deeds of sale, down to the end of the seventh century b.c. The Code and the contemporary contracts allow one month within which a plea could be raised that the slave had the bennu. The purchaser could [pg 171] then return him and have his money back. In the Assyrian deeds one hundred days is allowed.

In the Assyrian deeds ṣibtu is also allowed a hundred days. This is often associated with bennu in the mythological texts as equally dreaded. It affected the hands or the mouth. We may render it “seizure,” and think of some form of “paralysis.”

Legal defects

The objections which come under the head of legal defects are summed up in the Code as a bagru, or “complaint.” In the contracts and Code this could be pleaded at any time. So in Assyrian times a sartu, “a vice,” could be the ground for repudiation at any time. This might arise from the disposition of the slave. The sale might also be invalidated by a claim on him for service to the state; by a lien held by a creditor; by a claim to free citizenship. But we are not yet in a position to state definitely what was the exact nature of these claims. Doubtless the recovery of further codes will fix them finally.

In later Babylonian times Law B specially provides for the return of the slave at any time, if a claim be made on him.

Assyrian usages regarding slaves

In Assyrian times sales of slaves are very frequent, and we learn much more about the status of the slave. The slave was certainly a social inferior, but probably had more freedom than any other who ever bore the name. He certainly had his own property and could contract like a free man. A young slave lived in his master's house up to a certain age, when his master found a wife for him. This was usually a slave-girl. The female slaves remained in the house as domestic servants to old age, unless they were married to a slave. Married slaves lived in their own houses for the most part. Many such men seem to have taken up out-door work, gardening, agricultural labor, or the like, on their master's estates. Others engaged in business on their own [pg 172] account. But from all the master had a certain income. This was, within a little, the average interest on the money-value of a slave. And that interest was usually twenty-five per cent. per annum in Assyria.

Right of a slave to the enjoyment of his property and family

Theoretically a master owned his slave's property. What this ownership amounted to is hard to say. But the slave was rarely separated from it. His family at any rate was sacred. When sold, he was sold with his family. This, of course, does not exclude the sale of a young man at a time when he would naturally leave his father's home. Young women were taken into domestic service, and after a time sold. But there was none of that tearing of children from parents, which so shocked people in the modern examples. It is probable that a slave could not marry without his master's consent. He certainly could not live where he liked. But he was free to acquire fair wealth, and his property was so far his own that he could buy his own freedom with it.

The serfs

In Assyria there was a large body of serfs, glebae adscripti. They could be sold with the land. But they were free to work as they chose. Usually they cultivated a plot of their master's, but often had lands and stock of their own. They were not free to move, and probably paid a rent, one or two thirds of their produce. But they were mostly on the metayer system, and could claim seed, implements, stock, and other necessary supplies from their master. This class evidently possessed privileges highly esteemed, for their ranks were recruited from all classes of artisans in the towns, cooks, brewers, gardeners, washermen, and even scribes. Some of these were probably free men, others certainly had been slaves.

Advantages of slavery

The three classes, domestic slaves, married slaves, and serfs, were continually exchanging their condition. Not a few free men, whether from debt, judicial sentence, or choice, were added to these classes. For these men, if dependent, [pg 173] were cared for and provided with the necessaries of life. They were, if domestic, clothed, housed, and fed; if they married and lived out, they were given a house, and either were provided with land that brought them a living, or engaged in business.

Liability for forced labor

The army and corvée, or levy for forced labor, were chiefly obtained from the slaves, and above all from the serfs. A head of a family, or mother, was not liable. But young men and women had to serve a certain number of terms of service, seemingly six. Hence it was of importance to the buyer of a slave to receive a guarantee that this claim had been satisfied.

Opportunity to acquire skill as artisans

We have many examples of slaves who were skilled artisans. They had been taught a handicraft. Later we shall come across cases of apprenticeship of slaves to learn a craft. But all the artisans were not slaves. Indeed, some of the craftsmen, as goldsmiths, silversmiths, carpenters, were wealthy persons.

The slave an independent asset

As a rule, though the slave is named, his father is not. But, just as in mediæval times, a serf's father is named. The serf's holding seems to have been hereditary. But we have too few examples to be sure of our ground here. The slave's father was not concerned in the sale, and that may be the sole reason why he is not named. Fathers sometimes sold their children to be slaves, then they are named. Such sales are not so unnatural as they appear. It was a sure provision for life for a child to sell him as slave to a family in good position.

The later disappearance of the serf

In the later Babylonian times, the almost total disappearance of the serf has been noted as very remarkable. But this may be entirely due to the nature of our documents. The temples owned a great deal of land and their slaves were in the condition of serfs.

[pg 174]

Slave sales

In later Babylonian times we have a very large number of examples of slave sales. So far as the formula of a deed of sale is concerned, there is nothing to distinguish from a sale of the ordinary type, thus marking the slave as a chattel.

Guarantees exacted in such deeds:

But there are several clauses, which directly illustrate the possession of slaves, their position and liabilities. One clause, frequent when slaves were either pledged or sold, was a guarantee on the part of the owner against a number of contingencies. These are not easy to understand.

Against rebellions (?)

First we have the amêlu siḫû. Siḫu means rebellion or civil war. Sennacherib was slain in such an uprising. It may be that then the slave would be impressed for defence of law and order. Or it may be that amêlu siḫû is the rebel, or mob, who might carry off the slave. Or the contingency contemplated may be that the slave should turn rebel and refuse to do his master's bidding. The fact that a ship was also guaranteed against amêlu siḫû, renders this less likely. A ship could not turn rebel. It is not unlikely that slaves often joined in the rebellions.

Against flight

That a slave would escape by flight was always a danger. The slave had great freedom and many opportunities of getting away. The only security was that wherever he went he was likely to be recognized as a slave and anyone might recapture him. However, the captor had a right to a reward and so the owner would have to pay to get him back, besides losing his services for a time. Hence a slave who had a fancy for running away was likely to be troublesome and costly. That might lead to his being sold. But the purchaser protected himself by a guarantee on the seller's part that the slave would not run away. Then if the slave fled and was brought back, the captor gave a receipt for the sum paid him, and the owner reclaimed it from the seller.

[pg 175]

Against untimely death

The captor might retain the slave until he was paid. In other cases the seller had to recover the slave for the buyer. In Assyrian times the seller guaranteed also against death. Here it has been argued that the guarantee meant only that the slave had not fled or was not dead at the time of sale. This is not likely in the case of death. Surely no man could buy a slave who was dead. He would not pay, if the slave was not delivered. But he might bargain for recompense, if the slave died within a short time after purchase, as the seller might have had reason to know that he was ill.

Against unexpected claims

A guarantee was also given against the pakirânu. This is literally “the claimant.” What claim he had is not stated. When the slave was pledged, this might be a creditor to whom he had previously been pledged. But it covers all claims on the slave.

Against over-exaction in the public service

Another indemnity is the arad šarrûtu, or in the case of female slaves, the amat šarrûtu. This was the status of an arad šarri, or amat šarri, king's man or maid. The king, or state, had a right to the services of certain slaves. How long this was for, how it was discharged, and how a private person could give a guarantee against it, we do not exactly know. It may have been limited to slaves taken in war; it probably consisted in forced service; it may have been for a limited period, so that the guarantee amounted to an assurance that it was over. But it is possible that it would be compounded for, or a substitute provided. At any rate the seller held the buyer indemnified against this claim.

Against redemption as men of family

There was also a guarantee against mârbanûtu, the status of a mâr banû, or “son of an ancestor.” The difficulty which this raised was that, if a man was a scion of a noble family, he might be redeemed by it. The same result would follow from his being adopted. Hence some consider [pg 176] mâr banû to mean “adopted son.” But it does not always mean that. We have no good example of a slave being redeemed on this ground. But we know that they sometimes laid claim to be free men. This would of course involve a loss and at any rate a trouble to the owner. But we have not yet very full information on the point.

Against illegal enslavement

Finally there is mentioned a claim called šušanûtu. This occurs in Persian times only and may be the status of a šušanu, i.e., a Susian, or one of the conquering race. Such it may have been illegal to buy or hold in slavery. But in Assyrian times an official in the service of the royal house is called šušanu. We do not yet know what his duties were, but it may be that this official was one who could be called up for service at any time and therefore was undesirable as a slave.

The branding or tattooing of slaves

The abuttu which the Code contemplates a mistress putting on an insolent maid and so reducing her to slavery, or which the phrase-books contemplate a master laying upon a slave, or which an adoptive parent may set on a rebellious adopted son before selling him into servitude, has usually been taken to be a fetter. But in the case of a man, who being sold as a slave, had escaped and was claimed by the levy-master, we find the latter saying, ellita abuttaka gullubat, “thy abuttu is clearly branded,” or tattooed. Hence it may only be a mark.

The other ways of indicating servitude

There is frequent mention in early times of a mark upon slaves. The Code talks of marking a slave, but in a way that is difficult to understand. The verb usually rendered “brand” has been shown by Professor P. Jensen to include incised marks. Hence the penalty which was once rendered “shear his front hair” is thought to mean “brand his forehead.” The Code fixes a severe penalty for the putting of an indelible mark on a slave without his owner's consent. [pg 177] This could hardly be enforced for merely giving the slave a bald forehead, like the Hebrew peôt, or like a “tonsure.” The mark borne on the forehead by Cain, or by the “sealed” in the Apocalypse, is far more to the point as a parallel. The slaves also wore little clay tablets with the name of their owner inscribed upon them. There are a number of these preserved in the Louvre. On one now in the British Museum we have this inscription: “Of the woman Ḥipâ, who is in the hands of Sin-êresh. Sebat, eleventh year of Merodach-baladan, King of Babylon.” How these were attached to the slave is not very clear. But they must have been anything but an indelible mark. In the later Babylonian times we have a slave marked by a sign on his ears and a white mark in his eye. Both may denote natural marks. A more definite example is a slave “whose right hand has written upon it the name of Ina-Esagil-lilbur”; and another “on whose left hand was written the name of Meskitu.” These were the names of the owners, not of the slaves themselves. This renders it probable that the branding and the like was always an incised mark, a species of tattoo, which of course was indelible. That the same person who tattooed men should brand animals, or even shear them, is not an insuperable objection. But there is no reason to suppose that the brander ever was a sheep-shearer.

Significance of slave-names

In respect to the names of slaves we may regard them with some interest as helping to determine the sources from which slaves were recruited. Some bear good Babylonian names, and perhaps when the father's name is also Babylonian we may conclude that they had been born free, but were either sold into slavery by the head of the family, or, having once been adopted, had been repudiated and reduced to slavery again, or had been sold for debt. We have examples [pg 178] of all such cases. A father and mother sold their son; a mother who had adopted two girls repudiated them again; a brother gave a younger brother as a pledge.

Foreign-born slaves

When the slave's name is not Babylonian or Assyrian, a foreign nationality is nearly certain. These names are very valuable when they can be assigned to their nationalities, as confirming the historical claims of the kings to conquest. Sometimes they are actual gentile names, as Miṣirai, “Egyptian,” Tubalai, “man from Tubal.” But many may have been directly purchased abroad and sold to Babylonians. A great many foreign slaves doubtless received native names. Thus an Egyptian woman was called Nanâ-ittîa. Some of the names of slaves are true Babylonian, but of a rare and odd form, which has caused some to imagine them to be foreign. But this is not necessary. Servants are often renamed after the families to which they belong, and finally become known by names which were never theirs. Masters seem sometimes to have given their own names to slaves. Their names are often contracted, and some even appear to have had two.

Various methods of making slaves

The slaves were not only captives taken in war, but were bought abroad, and not a few were reduced to that condition from being freeborn citizens. Slavery awaited the rebellious child or the contentious wife. But it was not allowed by the Code for a man to sell his maid outright, who had borne him children. And if he sold his wife or child to pay a debt, the buyer could not keep them beyond a certain time. But in all periods parents sold their children, and there does not seem to be any clause demanding any future release.

A slave's right to hold and use property

The slave had private property which was secured to him. He paid a sort of rent for it. This was an annual [pg 179] fixed sum called his mandattu, the same word as for the tribute of a prince to his overlord. In the case of a female slave this was twelve shekels per annum. Further, he paid a percentage on his profits. The slave might hold another slave as pledge, lend money, and enter into business relations with another slave even of the same house. He might borrow money of another slave. Hence he was very free to do business. But when he entered into business relations with another master's slave, or a free man, he sometimes met with a difficulty. He seemingly could not enforce his own rights against a free man. At any rate, we find that in such cases his master assumed the liability and pleaded for him. In fact, the master had to acknowledge his undertakings, though he did not guarantee them. Subject to this protection from his master, the slave was free to engage in commerce. He lent to free men, entered into partnership, and owned a scribe.

A slave's evidence not good against a free man

Here is an example illustrating one of the above points. S had taken a loan of L. His master, A, became aware of it and guaranteed its repayment. He then put S into L's hands as his pledge to pay it off. Now, A died, and his son, B, sells S to C, as part of his own property. But L still holds possession of S. C demands S from L. L says “Not until my money is paid off. If C will do this he may have S. But until he can prove that it has been done he cannot have S.” The proof probably lay in B's hands, if he had preserved it from his father A's records. Delay is granted for C to produce the proof that S has worked off the debt. It is clear that the evidence of S was not admitted on this point.

A slave's value proportioned to his producing power

That in the case of some slaves their value to their master consisted in their mandattu is clear from the fact when a master sold a slave and did not at once hand him over, the [pg 180] seller had to pay a proportional amount of this fee to the buyer. Of course, in transferring a slave to another owner, the seller could not separate him from his property. That was his own. A slave who had acquired a fair amount of wealth, or was earning well in trade, would produce a higher income to his master and sell for more. What was sold then, was an interest, the master's, in his slave's work. Hence prices varied very much. We are not always able to see what was the reason of the high price, but it was evident then to those who made the bargain. An average price in the later Babylonian era seems to have been twenty shekels, the interest on which at the usual twenty per cent. would be four shekels. This, then, was the annual value of a slave above his keep. If the keep amounted to about eight shekels per annum, that gives the value of a slave's work as twelve shekels yearly. This is what an unskilled slave was worth to his master. If, then, a man married a slave-girl, he ought to pay her master about twelve shekels a year for his loss of her services. Of course, the master retained his right over her, but it seems to have been a tacit understanding that he could not sell her away from her husband. So really what he sold was, after all, only a right to income from her husband of twelve shekels a year. The children were also his born slaves, if the father was his slave. We do not know how matters would be arranged if the man was slave to one master, the wife to another. Probably this was provided against by the master giving his slave a wife from his own maids, or buying a slave-girl as wife for him.

The history of the slave Bariki-ilu

It occasionally happens that we can trace the history of a particular slave for some time. Thus, Bariki-ilu was pledged for twenty-eight shekels to Aḫinûri, in the thirty-fifth year of Nebuchadrezzar. In the next year we find [pg 181] him in the possession of Piru, his wife Gagâ, and a cousin Zirîa. What they gave for him does not appear. But they now sold him for twenty-three shekels to Nabû-zêr-ukîn. He must have fled from his new master, for four years later, the same three people pledged him. But he seems to have been unsatisfactory as a pledge. For next, we find that Gagâ's daughter (Piru having probably died), being about to be married to Iddin-aplu, this slave was set down as part of her marriage-portion. She gave him over to her husband and his son. In their possession he remained awhile, but on the death of his mistress, was handed over to the great banker, Itti-Marduk-balâṭu. These events, extending from the thirty-fifth year of Nebuchadrezzar to the seventh year of Nabonidus, were all put in evidence when Bariki-ilu tried later to prove that he was a free man. He pretended to be the adopted son of Bêl-rimâni. He had to confess that he had twice run away from his master and had been many days in hiding. Then he was afraid and pretended to have been an adopted son. This, if proved, would have freed him. But he confessed that it was a pretence, and had to return to his servitude. The case was decided in the tenth year of Nabonidus.

A runaway slave not always returnable

It seems clear that when a slave ran away to his old owners, they did not always deliver him up again to the man who bought him of them. They probably had to return the purchase-money. The buyer probably would not accept him again.

Apprenticing slaves to a trade

One feature which the later Babylonian contracts show us for the first time, but which probably was always in force, is the apprenticing of slaves to a trade. Instances of this are fairly numerous. The person to whom the slave was apprenticed was usually a slave himself. The teacher was bound to teach the trade thoroughly. The owner of the [pg 182] slave gave him up to the teacher for a fixed term of years, differing for different trades. He had to furnish a daily allowance of food and a regular supply of clothing. At the end of the term, the slave might remain with his teacher on payment of a fixed mandattu or income to the owner. Penalties were fixed for neglecting to teach him properly. The trades named are weaving, five years' term; baking, a year and a quarter; stone-cutting, four years; fulling, six years; besides others not yet recognized.

Fee paid by service

The teacher had no fee, but only the apprentice's work for his trouble. The owner was therefore bound to allow the apprentice to remain a fair time.

Relative proportion of slaves to free men

A question of considerable interest which needs to be worked out is the relative number of slaves in the population. In early times the impression one gets is that they were few. Even in the time of the First Dynasty of Babylon, the evidence at the disposal of Dr. Meissner in 1892 did not allow him to exceed four as the number in the possession of one man at a time. But since then further evidence is available. Thus we read of twelve slaves at once, seven males and five females, given by a father to his daughter, at Sippara. In Assyrian times the number in an average household rarely exceeds one or two, but we have as many as thirty mentioned at one time. So in later times there are generally only one or two in a household, but the number is occasionally much more.

Price of a slave

As to the value of a slave, we have in very early times an average set down as twenty shekels, with examples as low as thirteen shekels. In the time of the Second Dynasty prices varied from as low as four and a half shekels for a maid, or ten shekels for a man, up to eighty-four shekels. The Code estimates the average value of a slave as twenty [pg 183] shekels. In Assyrian times the price of a single male slave varies from twenty to one hundred and thirty shekels, but the usual price is thirty shekels. A female slave could be had for as little as two and a half shekels, but might cost as much as ninety shekels. A common price was thirty shekels. In later Babylonian times also, prices vary widely, but the commonest price and usual pledge-value was twenty shekels.

[pg 184]

XVIII. Land Tenure In Babylonia

Distinction between real and personal property

The idea of real as opposed to personal property is common in Babylonian law; for we notice that in the Code, while certain persons may inherit from the goods of their parents, they may not inherit land, garden, or house. He then had no share in his father's house; he was not one of the family. The distinction is important, for, as we shall see later, the word “house” had a wider signification than mere bricks and mortar. It was the ancestral estate. Over it the family had rights. It went back in default of heirs to the family of the last owner. We are therefore confronted with private ownership of land, but also with a sort of entail.

Entailed property

The amount of land might be increased by purchase, but there is a strong presumption that it thus became family property and did not remain at the disposal of the buyer. For if so, in the case above the law should have stated that the parent could not donate land that was family property, but might do so with what he had bought. This does not exclude the possibility of sale. Only the family had apparently the right of pre-emption.

Natural features of Babylonia in their influence on property rights

In looking back upon the primitive state of the country, its natural features must be taken into account as helping to shape the course of development. In such a low-lying country as the land between the Euphrates and the Tigris, [pg 185] floods naturally occur every year. Every spot of land that stood above the level of the annual floods was thereby marked out for a residence. Throughout the literature of Babylonia the hill or the mountain is a refuge and a place protected by the gods. But when the floods were gone, man's great need for his land was water. Hence irrigation was synonymous with cultivation. The unclaimed land grew rank with grass and natural food for cattle, but dried up to dust in the summer. Hence the control of the flood, its diversion into desired channels, regulation, storage, and all the processes implied by canals and irrigation were forced upon the inhabitants of Babylonia by stern necessity. The only alternative was to migrate with flocks and herds to higher lands when the floods came.

Primitive land tenure

Settled society was ultimately founded upon the cultivation of a plain. Every eminence might become a hamlet occupied by the abodes of men, whose fields were water meadows. The meadows which grew their corn lay around the village and below its level; and beyond those which were needed to grow crops lay the pastures. But for security the cattle and sheep must come back, before the floods came, to the village, there to be folded and fed, as it seems, upon straw and also grain. The land of the village extended itself in time, as the population grew and needed more corn. More and more of the unreclaimed land beyond the cornfields was brought into cultivation and the flocks went farther afield for pasture. This continued until the pastures forming the outlying ring had met the pastures of another village.

Ownership of cultivated land

Such is an ideal sketch of the growth of land tenure. But in historical times this simplicity had vanished. Land was owned, not merely held. It does not appear that pasture was owned, even as late as the First Dynasty of Babylon. It seems that the flocks were confided to shepherds, [pg 186] who were bound to bring them back from the pastures and expected to account for all they took out and for a reasonable increase in the flock from breeding. The pasture was common land; at any rate, to the sheep-owners of the same village. No one claims to buy and sell pasture land, only cultivated land, fields, gardens, and plantations, ultimately irrigated land. But unreclaimed land, that is, such as only required cultivation to make it fields and gardens, is often sold, or let, to be reclaimed. Was this a trespass on the pasture held in common? If so, it was not resented as such. We do not know yet how a man acquired a title to such unreclaimed land. Perhaps to have brought it into cultivation sufficed originally to establish title.

Theoretical ownership of the land by the local deity

A settled hamlet soon had its temple. Some think that the god was ideally landlord of all the village land and that every title represented simply the rental of the land from the nominal owner. We do indeed find the temples as owners of vast estates and, like monastic institutions in the Middle Ages, letting lands and houses. To the temples poor men went for temporary accommodation for sowing, for wages at harvest-time, and for ransom from the enemy. These they had a right by custom to receive without paying interest. Undoubtedly the temples became the first centres of progressive civilization. The patêsi, as chief-priest of the god, was the regent of the community. In process of time, as villages combined and grew into towns and districts, the patêsi, in virtue of his town's supremacy, became the king, who, as regent of the state and representative of the gods, owned all. We know that, in later times, the king in Babylon was the adoptive son of Bel-Merodach.

Private ownership absolute in historical periods

In historical times no such conditions prevail. Doubtless the tribal ownership had become theoretically transferred to the god, or to the town. That the town had a [pg 187] theoretical personality of its own is clear enough from the oaths sworn to confirm a sale. Men swore by the gods, the king, and also by Sippara, or Kar Sippara. But there is no indication that points to the god, or the town, or the king as having any power to intervene to prevent a sale, or to claim payment for consent. It is clear that the land was sold subject to its dues, and they were many. But the private ownership, subject to such reservation, was absolute. The one danger to a purchaser was that the family of the seller should claim a right of redemption and annul the sale. Against this the seller undertook to indemnify him.

Right to retain ancestral estates

Exact statements as to the rights possessed by the family to reclaim land sold by a member of the family are not to be found, but they are to be inferred with certainty from a few notices which we have. Thus, a man claimed a certain plot of land as ancestral domain which two others had sold. There are several such cases among the legal decisions of the First Dynasty of Babylon. In most of the Assyrian deeds of sale we have a long list of representatives of the seller, who are explicitly bound not to interfere and attempt to upset the sale. Their right existed or they would not be called upon to enter into a contract nor to insist upon it.

Different kinds of real property

From the point of view of the ancient Babylonian, as from that of the modern lawyer, there was a great similarity about all classes of real property. The deeds of sale or conveyances, as well as the leases, treated them with much the same formula. It was the land which was the main consideration. It was as land, built upon indeed, but essentially as land, that the house was sold. The house is rarely described by what to modern views would be its most important features, the number of stories, rooms, conveniences, and the like. Instead its area was stated. This is remarkable, as we do not buy houses by the area. We [pg 188] need not suppose that the building actually covered all the land sold. In fact, we often see that it had a garden. But it was bîtu epšu, a “built-on plot” of land, according to the Babylonian conveyancer. Perhaps there was in this usage a recollection of how fast the Babylonian house of sun-dried brick sank down to a mound of clay, perhaps, too, a far-off echo of the nomad's scorn for the town-dweller, in both cases a recognition that the land was the one thing permanent, the one thing that could not “run away.”

Terms used in descriptions of real property

The plot of land was the bîtu, Hebrew beth, represented by the Sumerian Ê. When it had the additional advantage of a house upon it, it was bîtu epšu, a “built-on plot.” Gradually the edifice, in towns at least, absorbed the whole significance, and in common parlance bîtu meant a “house,” but in legal phraseology it always retained its inclusive meaning of the plot of land. Even as late as the Assyrian Empire it retained some shade of a still earlier meaning, that of a plot, parcel, or share, just what it meant when the first settlers divided the land among them. Thus one might use bîtu of a “lot” of slaves, or of a lot of land including its slaves and cattle. That bîtu is to be referred to a root banû, “to make,” may still be true, though banû cannot have come to mean “build” when bîtu was formed from it. If bîtu was originally the “house,” perhaps only a tent-house, then it could mean all that constituted the house, the man's house in a wider sense, as in tribe names, like Bît Adini or the phrase, “House of Israel.” But bîtu, when used of a house, does not carry with it the implication of bricks and mortar, only of a fixed site occupied for dwelling. The edifice was implied by the addition epšu, marking the site “built upon.” So a house was “landed property”; land was of various sorts, one of which is “built on land.” To be accurate one must also specify the kind of building.

[pg 189]

The field was called eḳlu (compare Acel-dama, “the field of blood”), denoted by the Sumerian A-ŠAG-GA. The term does not denote open waste land, but a cultivated plot. Indeed, it is probable that its Sumerian name implies “irrigation.” In any case it was fenced, if only by a raised ridge; it was cultivated and watched over; the birds were scared away, robbers and stray animals driven off. So much at least is expressed in as many words in the undertakings of tenants to treat a field properly. The field was also bîtu as land, usually “bîtu, so much eḳlu.”

The garden was reckoned as land, but here a fuller specification was needed. For a plot of land, a garden, kirû was not exact enough. It was usual to designate further of what sort it was, whether vegetable garden, orchard, or palm-grove. The scribe would even add “planted with such and such a crop.” The term might include vineyards. In many cases the actual number of bushes, or fruit-trees, or vine-stocks, would be named. But it was always primarily land, and as such bîtu, with the qualifications enumerated.

Systems of land measures: (1) computation by area

For land measures there were two systems in use, one purely areal, the other with a reference to the average yield. In the former case the scale of measures was discovered and formulated by Dr. G. Reisner, in the Sitzungsberichte Berliner Akademie, 1897, p. 417 f., and is completely known. In this scale 1 GAN = 1,800 SAR, 1 SAR = 60 GIN, 1 GIN = 180 ŠE. We do not know how these words GAN, SAR, GIN, ŠE were read; they may be ideograms or Sumerian words. There was also a very large measure of area, 3,600 GAN, perhaps called a karu. Mr. Thureau-Dangin has further shown that the SAR was the square of the measure GAR-DU, which seems at one time to have measured 12 U. The U is often taken to be a cubit, but seems at this time to have been nine hundred and ninety millimetres, which is sometimes called “a double cubit.” On these suppositions [pg 190] the SAR would be a square, each side measuring about twenty-two yards, about one-tenth of an acre, or four ares on the metrical system. But it is certain that both in early times and during the First Dynasty of Babylon the GAR was only 12 U, and the U, if a cubit, would not be much over eighteen inches. This would make the SAR a square of about eighteen feet on each side. The fact that a SAR was a fairly common size for a house seems rather against the smaller area. What is yet wanted is some cuneiform statement of the size or area of something which can be exactly identified and measured. With further exploration this is almost sure to be found.

(2) Computation by an average yield

The other system applied to land the names of measures of capacity used for measuring crops. We read of so many GUR and ḲA of land, where 1 GUR = 300 ḲA, as shown by Dr. Reisner. We may guess that a GUR of land was so called because it took a GUR of corn to sow it, or because it yielded a GUR of corn as an average harvest. These are mere guesses and we must remain in ignorance until further evidence connects a GUR of land on one side with its length and breadth, or some other relation between the GUR and the GAN can be deduced. Then we shall want to know the size of the GUR of corn, of which at present we have no knowledge. But already in Susa a broken pot has been found with its original contents marked upon it. When others are found, from which an approximate estimate of contents can be made, and an inscription read giving the capacity, we shall be able to make a definite statement. At present the data are insufficient and what the metrologists write is only ingenious speculation.

Descriptions and plans of plots of land

A piece of land had, so to speak, an individuality of its own. Once marked out, and that probably from time immemorial, it was rarely divided. It seems probable that [pg 191] corn-land at any rate was divided into long, narrow strips. But the plots became gradually of all sizes and shapes, as the many plans of estates show. The lengths of the sides are usually given on such plans, and much labor has been expended with small result on reconciling the given dimensions with the area ascribed to the plot. But it is certain that these were often recorded merely for purposes of identification. The area of the field was well known, and its average crop also, without any need of resort to calculations.

Boundary-stones

These plots often bear their owner's name, and that long after he had passed away. The boundary-stones of the field were sacred. Not a few were inscribed with some sort of history of the plot. Especially was this the case when the land was granted to fresh owners, by sale, or charter. No inconsiderable portion of what we know of history is derived from inscribed boundary-stones. They are the oldest monuments and rarely deeply buried. Hence they are easy to find. They have even been brought to London, as ship's ballast, in times before they could be read. They would be invaluable, if found in situ, for a modern survey of the country and a reconstruction of its ancient history. As a rule they are splendidly preserved.

Inviolability of landmarks

Encroaching on the highway

In ancient days great importance was attached to their preservation. The kings taxed their powers of cursing in order to terrify men from removing their neighbor's landmark. The dangers to the stone contemplated were its removal to another place, its being thrown into the water, or into the fire, its being built into a wall, being buried in the dust, placed where it cannot be seen, put in a house of darkness, erased and overwritten with other records. Akin to the crime of encroaching upon old landmarks was that of building upon or otherwise encroaching on the highway. To do this might subject the builder to the danger of being [pg 192] hanged, as a warning on a gallows erected above his own house.

The king's power over land

That the land was sold subject to certain territorial obligations, we can glean from many hints. One of the most important is that, when a favorite, or well-deserving official, had acquired a large estate, the king by charter granted him an immunity from these obligations. These charters were often inscribed on large blocks of stone or water-worn pebbles of great size, and seem to have been set up as boundary-stones. Some were reproduced from tablets written on clay. They are very numerous and in some periods of the history are the only monuments that have reached us. A glance through any history of Babylonia will show the reader how much depends on them. But here our only concern is with the light they throw on land tenure and its conditions. One of the points which at once becomes clear is that, although the king was representative of the god and titular head of all the tribes, he could not appropriate land just where he chose. Manistusu, King of Kish, when he was seeking to acquire a fine estate to present to his son, Mesilim, had to buy land at what seems to have been an average price. He paid for the land in corn at three and one-third GUR of corn per GAN, the GUR being worth one shekel of silver. This was the price. But, as was usual later in private purchases, a present to the former owner was given. The list of these presents is most interesting,—silver and copper vessels and rich vestments being the chief items. Of great importance is the reference to the leading men of each hamlet as sellers. The king's own land was a definite area, so definite as to be cited as a boundary.

Recognition of private rights of possession

A celebrated passage in Sargon's cylinder says, “according to the interpretation of my name, Sharru-kînu, righteous [pg 193] king, which bade me observe right and justice, repel the impious, not oppress the weak; as the great gods had bidden me, I gave money for the pieces of land, of each city; according to written contracts, in silver and bronze, to their owners, in order to do no injustice; and to those who would not take money, a field for a field, where they preferred, I gave.” That this was no idle boast is proved from the tablet which records how Sargon, in the year b.c. 713, having taken possession of some lands in Maganuba to form part of his new city of Dûr-Sargon, found that he was displacing an old endowment given by Adadi-nirâri to the god Ashur. It was held by a family descended from the original recipients. Sargon increased their holding and charged it with an increased monthly offering to the temple. He gave “field for field,” but also added largely to the endowments. He acted much the same in Babylonia, where the Suti had encroached upon the lands of the people. He drove out the invaders, restored the lands, but laid them under obligations, kidinûtu, making them render a monthly due to the temples, as before.

Royal grants to temples and favorites

On the other hand, we find that the kings granted large grants of land to temples and private persons. From what source these grants were made does not appear. Probably from his own personal property. The property so presented was free of imposts. But we may not assume that the king was always the poorer. The beneficiary may have bought the land and presented it to the king, to be received back free of imposts in perpetuity.

Thus, Nazimaruttash presents a large estate to Merodach, and another to Kashakti-Shugab, his servant. Kurigalzu granted an estate to Eṭir-Marduk for his conduct in a war against Assyria, and Bitiliashu confirmed it. A coppersmith [pg 194] who fled from the land of Ḥanigalbat made a fine specimen of his work for Bitiliashu, and the king rewarded him with a grant of land. Adadi-shum-uṣur made another grant of land to an unknown servant of his. Melishiḫu made a grant of land to his son, Merodach-baladan I., and granted it exemption from all imposts. Another grant he made to a servant of his. So when Shamû and Shamûa, his son, two priests of Eria in Elam, fled from their own king and took refuge with Nebuchadrezzar I., he espoused their cause, plundered Elam, brought back their god, Eria, to Babylon, and they having taken the hands of Bêl, the king granted them an estate in Babylonia and freed it from imposts. Nabû-aplu-iddina granted an estate to a namesake of his, which, however, seems to have been claimed as ancestral property. Melishiḫu granted lands to Ḥasardu, a servant of his. Merodach-baladan I. granted lands to Marduk-zâkir-shumi. Marduk-nâdin-aḫi granted Adadi-zêr-iḳisha, for his services against Assyria, lands in the district of Bît-Ada, which seem to have been ancestral domains of one Ada. Some fragments of clay copies of similar grants by Adadi-nirari, Tiglath-pileser III., Ashurbânipal, and Ashur-eṭil-ilâni are preserved in the British Museum's Collections from Nineveh. They all appear to record grants to favorite officials, who had deserved well of the king.

Restoration of ancestral estates