Babylonian law was of early growth. Among the oldest records of the
country are legal cases, abstracts of which have been transcribed for
future use. The first law-book, in fact, was ascribed to Ea, the god of
culture, and it was told how he had enacted that the King should deal
uprightly and administer justice to his people. “If he regard not
justice,” it was said, “Ea, the god of destiny, shall change his fortune
and replace him by another.… But if he have regard to the injunction of
Ea, the great gods shall establish him in wisdom and the knowledge of
righteousness.”
The Ea of the cuneiform text seems to be the Oannes of the Chaldean
historian Berossos, who was said to have risen out of the waters of the
Persian Gulf, bringing with him the elements of civilization and the code
of laws which were henceforth to prevail in Babylonia. The code of Oannes
has perished, but fragments of another and more historical one have been
preserved to us in a reading-book which was intended to teach the Semitic
pupil the ancient language of the Sumerians. The original Sumerian text is
given with its Semitic equivalent, as well as a list of technical legal
terms. “If a son,” it is said, “denies his father, his hair shall be cut,
he shall be put into chains and sold for silver. If he denies his mother,
his hair also shall be cut, city and land shall collect together and put
him in prison.… If the wife hates her husband and denies him, they shall
throw her into the river. If the husband divorces his wife, he must pay
her fifty shekels of silver. If a man hires a servant, and kills, wounds,
beats, or ill-uses him or makes him ill, he must with his own hand measure
out for him each day half a measure of grain.”
We have already seen that the last regulation was in force up to the
latest period of Babylonian history. It betrays a humane spirit in the
early legislation and shows that the slave was regarded as something more
than a mere chattel. It provided against his being over-worked; as soon as
the slave was rendered unfit for labor by his hirer’s fault, the latter
was fined, and the fine was exacted as long as the slave continued ill or
maimed. The law which pronounced sentence of death by drowning upon the
unfaithful wife was observed as late as the age of Khammurabi. Such at
least is the evidence of some curious documents, from which we learn that
a certain Arad-Samas married first a daughter of Uttatu and subsequently a
half-sister of his wife. In the contract of marriage it is stipulated that
unfaithfulness to the husband on the part of both the wives would be
punished with drowning, on the part of the second only with slavery. On
the other hand he could divorce them on payment of a maneh of silver—that
is to say, of 30 shekels apiece. Under Nebuchadnezzar the old power of
putting the wife to death in case of adultery was still possessed by the
husband, where the wife was of lower rank than himself and little better
than a concubine. It was a survival of the _patria potestas_ which had
once belonged to him. The wife who came from a wealthy and respectable
family, however, stood on a footing of equality with her husband, and he
could not venture to put in force against her the provisions of the
ancient Sumerian law.
Babylonian law resembled that of England in being founded upon precedents.
The code which was supposed to have been revealed by Ea, or Oannes,
belonged to the infancy of Chaldean society and contained only a
rudimentary system of legislation. The actual law of the country was a
complicated structure which had been slowly built up by the labors of
generations. An abstract was made of every important case that came before
the judges and of the decision given in regard to it; these abstracts were
carefully preserved, and formed the basis of future judgments.
The judges before whom the cases were brought were appointed by the King,
and acted in his place. They sat under a president, and were usually four
or five in number. They had to sign their names at the end of their
judgments, after which the date of the document was added. It is probable
that they went on circuit like Samuel in Israel and the “royal judges” of
Persia.
Where foreigners were involved the case was first tried before special
judges, who probably belonged to the same nationality as the parties to
the suit; if one of the latter, however, was a Babylonian it was afterward
brought again before a native tribunal. Sometimes in such cases the
primitive custom was retained of allowing “the elders” of the city to sit
along with the judges and pronounce upon the question in dispute. They
thus represented to a certain extent an English jury. Whether they
appeared in cases in which Babylonians alone were engaged is doubtful. We
hear of them only where one at least of the litigants is an Amorite from
Canaan, and it is therefore possible that their appearance was a
concession to Syrian custom. In Babylonia they had long been superseded by
the judges, the royal power having been greater there from the outset than
in the more democratic West, and consequently there would have been but
little need for their services. If, however, the foreign settlers had been
accustomed at home to have their disputes determined by a council of
elders, we can understand why they were still allowed in Babylonia to
plead before a similar tribunal, though it could do little more than
second the decisions of the judges.
Plaintiff and defendant pleaded their own causes, which were drawn up in
legal form by the clerks of the court. Witnesses were called and examined
and oaths were taken in the names of the gods and of the King.
The King, it must be remembered, was in earlier times himself a god. In
later days the oaths were usually dropped, and the evidence alone
considered sufficient. Perhaps experience had taught the bench that
perjury was not a preventable crime.
Each case was tried by a select number of judges, who were especially
appointed to inquire into it, as we may gather from a document dated at
Babylon the 6th day of Nisan in the seventeenth year of Nebuchadnezzar.
“[These are] the judges,” it runs, “before whom Sapik-zeri, the son of
Zirutu, [and] Baladhu, the son of Nasikatum, the servant of the secretary
of the Marshlands, have appeared in their suit regarding a house. The
house and deed had been duly sealed by Zirutu, the father of Sapik-zeri,
and given to Baladhu. Baladhu, however, had come to terms with Sapik-zeri
and handed the house over to him and had taken the deed (from the
record-office) and had given it to Sapik-zeri. Nebo-edher-napisti, the
prefect of the Marshlands; Nebo-suzzizanni, the sub-prefect of the
Marshlands; Merodach-erba, the mayor of Erech; Imbi-ilu, the priest of Ur,
Bel-yuballidh, the son of Merodach-sum-ibni, the prefect of the western
bank; Abtâ, the son of Suzubu, the son of Babutu; Musezib-Bel, the son of
Nadin-akhi, the son of the adopted one; Baniya, the son of Abtâ, the
priest of the temple of Sadu-rabu; and Sa-mas-ibni, the priest of
Sadu-rabu.” The list of judges shows that the civil governors could act as
judges and that the priests were also eligible for the post. Neither the
one class nor the other, however, is usually named, and we must conclude,
therefore, that, though the governor of a province or the mayor of a town
had a right to sit on the judicial bench, he did not often avail himself
of it.
The charge was drawn up in the technical form and attested by witnesses
before it was presented to the court. We have an example of this dated at
Sippara, the 28th day of Adar in the eighth year of Cyrus as King of
Babylon: “Nebo-akhi-bullidh, the son of Su—, the governor of Sakhrin, on
the 28th of Adar, the eighth year of Cyrus, king of Babylon and of the
world, has brought the following charge against Bel-yuballidh, the priest
of Sippara: I have taken Nanâ-iddin, son of Bau-eres, into my house
because I am your father’s brother and the governor of the city. Why,
then, have you lifted up your hand against me? Rimmon-sar-uzur, the son of
Nebo-yusezib; Nargiya and Erba, his brothers; Kutkah-ilu, the son of
Bau-eres; Bel-yuballidh, the son of Barachiel; Bel-akhi-uzur, the son of
Rimmon-yusallim; and Iqisa-abbu, the son of Samas-sar-uzur, have committed
a crime by breaking through my door, entering into my house, and leaving
it again after carrying away a maneh of silver.” Then come the names of
five witnesses and the clerk.
A suit might be compromised by the litigants before it came into court. In
the reign of Nebuchadnezzar a certain Imliya brought witnesses to the door
of the house of an official called Bel-iddin, and accused Arrali, the
superintendent of the works, of having stolen an overcoat and a loin-cloth
belonging to himself. But it was agreed that there would be no need on the
part of the plaintiff to summon witnesses; the stolen goods were returned
without recourse to the law.
The care taken not to convict without sufficient evidence, and the
thoroughness with which each case was investigated, is one of the most
striking features in the records of the Babylonian lawsuits which have
come down to us. Mention has already been made of the case of the runaway
slave Barachiel, who pretended to be a free citizen and the adopted son of
a Babylonian gentleman. Every effort seems to have been made to get at the
truth, and some of the higher officials were associated with the judges
before whom the matter was brought. Eventually cross-examination compelled
Barachiel to confess the actual facts. It is noticeable that no torture
was used to compel confession, even though the defendant was not a free
citizen. No allusion, in fact, is ever made to torture, whether by the
bastinado or otherwise; the evidence of witnesses and the results of
cross-examination are alone depended upon for arriving at the truth. In
this respect the legal procedure of Babylonia offers an honorable contrast
to that of ancient Greece or Rome, or even of Europe down to the middle of
the last century.
Two cases which were pleaded before the courts in the reign of Nabonidos
illustrate the carefulness with which the evidence was examined. One of
them was a case of false witness. Beli-litu, the daughter of Bel-yusezib,
the wine merchant (?), “gave the following testimony before the judges of
Nabonidos, king of Babylon: In the month Ab, the first year of
Nergal-sharezer, king of Babylon, I sold my slave Bazuzu for thirty-five
shekels of silver to Nebo-akhi-iddin, the son of Sula of the family of
Egibi, but he now asserts that I owed him a debt and so has not paid me
the money. The judges heard the charge, and caused Nebo-akhi-iddin to be
summoned and to appear before them. Nebo-akhi-iddin produced the contract
which he had made with Beli-litu; he proved that she had received the
money, and convinced the judges. And Ziriya, Nebo-suma-lisir, and Edillu
gave further testimony before the judges that Beli-litu, their mother, had
received the silver.” The judges deliberated and condemned Beli-litu to a
fine of 55 shekels, the highest fine that could be inflicted on her, and
then gave it to Nebo-akhi-iddin. It is possible that the prejudice which
has always existed against the money-lender may have encouraged Beli-litu
to commit her act of dishonesty and perjury. That the judges should have
handed over the fine to the defendant, instead of paying it to the court
or putting it into their own pockets, is somewhat remarkable in the
history of law.
The second case is that of some Syrians who had settled in Babylonia and
there been naturalized. The official abstract of it is as follows:
“Bunanitum, the daughter of the Kharisian, brought the following complaint
before the judges of Nabonidos, king of Babylon: Ben-Hadad-nathan, the son
of Nikbaduh, married me and received three and one-half manehs of silver
as my dowry, and I bore him a daughter. I and Ben-Hadad-nathan, my
husband, traded with the money of my dowry, and we bought together a house
standing on eight roods of ground, in the district on the west side of the
Euphrates in the suburb of Borsippa, for nine and one-third manehs of
silver, as well as an additional two and one-half manehs, which we
received on loan without interest from Iddin-Merodach, the son of
Iqisa-ablu, the son of Nur-Sin, and we invested it all in this house. In
the fourth year of Nabonidos, king of Babylon, I claimed my dowry from my
husband Ben-Hadad-nathan, and he of his own free will gave me, under deed
and seal, the house in Borsippa and the eight roods on which it stood, and
assigned it to me for ever, stating in the deed he gave me that the two
and one-half manehs which Ben-Hadad-nathan and Bunanitum had received from
Iddin-Merodach and laid out in buying this house had been their joint
property. This deed he sealed and called down in it the curse of the great
gods (upon whoever should violate it). In the fifth year of Nabonidos,
king of Babylon, I and my husband, Ben-Hadad-nathan, adopted
Ben-Hadad-amara as our son and subscribed to the deed of adoption, and at
the same time we assigned two manehs ten shekels of silver and the
furniture of the house as a dowry for my daughter Nubtâ. My husband died,
and now Aqabi-ilu (Jacob-el), the son of my father-in-law, has raised a
claim to the house and property which was willed and assigned to me, as
well as (a claim) to Nebo-nur-ilani, whom we bought for money through the
agency of Nebo-akhi-iddin.
“I have brought him before you; pass judgment. The judges heard their
pleas; they read the deeds and contracts which Bunanitum produced in
court, and disallowed the claim of Aqabi-ilu to the house in Borsippa,
which had been assigned to Bunanitum in lieu of her dowry, as well as to
Nebo-nur-ilani, whom she and her husband had bought, and to the rest of
the property of Ben-Hadad-nathan; they confirmed Bunanitum and
Ben-Hadad-amara in their titles. (It was further added that)
Iddin-Merodach should receive in full the sum of two and one-half manehs
which he had given toward the purchase of the house, and that then
Bunanitum should take in full three and one-half manehs, the amount of her
dowry, and that part of the property (which had not been bequeathed to
Nubtâ). Nebo-nur-ilani was to be given to Nubtâ in accordance with the
will of her father. The following judges were present at the delivery of
this judgment: Nergal-banunu the judge, the son of the architect;
Nebo-akhi-iddin the judge, the son of Egibi; Nebo-sum-ukin the judge, the
son of Irani; Bel-akhi-iddin the judge, the son of ——; Nebo-balasu-iqbi
the judge, the son of ——; and the clerks Nadin and Nebo-sum-iskun.
Babylon, the 29th day of Elul, the ninth year of Nabonidos, king of
Babylon.”
The term used in reference to the loan made by Iddin-Merodach implies that
the lender accepted a share in the property that was bought instead of
demanding interest for his money. Hence it was that, when the estate came
to be settled after the death of Ben-Hadad-nathan, it was necessary to pay
him off. What the grounds were upon which Aqabi-ilu laid claim to the
property we are not told, and the _dossier_ in which it was set forth has
not been found. His name, however, is interesting, as it proves that the
old Western Semitic name of Jacob-el, of which the Biblical Jacob is a
shortened form, still survived in a slightly changed shape among the
Syrian settlers in Babylonia. Indeed, Iqubu, or Jacob itself, is found in
a contract of the tenth year of Nabonidos as the name of a coppersmith at
Babylon. Two thousand years before there had been other Semitic settlers
in Babylonia from Western Asia who had also taken part in the legal
transactions of the country, and among whom the name of Ya’qub-ilu was
known. The name had even spread to the Assyrian colonists near Kaisarîyeh,
in Cappadocia, who have left us inscriptions in uniform characters, and
among them it appears as Iqib-ilu. Iqib-ilu and Aqabi-ilu are alike
kindred forms of Ya’qub-ilu (or Yaqub-ilu), the Jacob-el of Canaan.
Death, more especially with “an iron sword,” was the punishment of the
more serious offences; imprisonment and scourging of lighter ones.
Imprisonment might be accompanied by chains or the stock, but the prisoner
might also be left unfettered and be allowed to range freely through the
court or cell of the prison. Whether the penalty of imprisonment with hard
labor was ever inflicted is questionable; in a country where slavery
existed and the _corvée_ was in force there would have been but little
need for it.
The prisoner could be released on bail, his surety being responsible for
his appearance when it was required. Thus in the seventh year of Cyrus one
of the officials of the temple of the Sun-god at Sippara was put into
“iron fetters” by the chief priest of the god, but was afterward released,
bail being given for him by another official of the temple. The latter
undertook to do the work of the prisoner if he absconded. The bail was
offered and accepted before “the priests and elders of the city,” and the
registration of the fact was duly dated and attested by witnesses. At a
later date a citizen of Nippur was allowed to become surety for the
release of his nephew from prison on condition that the latter did not
leave the city without permission. The prison is called _bit-karê_, or
“House of Walls.”(9)
There was another _bit-karê_, which had a very different meaning and was
used for a very different purpose. This was “the House of Cereals,” the
storehouse or barn in which were stored such tithes of the temples as were
paid in grain. The name is also sometimes applied to the _sutumme_, or
royal storehouses, where the grain and dates collected by the
tax-gatherers were deposited, and from which the army and the civil
servants were provided with food. The superintendent of these storehouses
was an important personage; he was the paymaster of the state officials,
in so far as they received their salaries in kind, and the loyalty of the
standing army could be trusted only so long as it could be fed. Similar
storehouses existed in Egypt, from the age of the eighteenth dynasty
downward, and it is probable that the adoption of them was due to
Babylonian influence. They gave the King a powerful hold upon his
subjects, by enabling him to supply them with grain in the years of
scarcity, or to withhold it except upon such terms as he chose to make
with them.
The exportation of the grain, moreover, was a yearly source of wealth and
revenue which flowed into the royal exchequer. In Babylonia, as in Egypt,
the controller of the granaries was master of the destinies of the people.