de la Délégation en Perse_, beautifully reproduced by photogravure,
admirably transliterated and translated by Professor V. Scheil. Some fine
examples are also to be found in _Cuneiform Texts from Babylonian Tablets,
etc., in the British Museum_.(48)
Of the time of Marduk-shum-iddin, B.C. 853-833, we have a black
boundary-stone, published by Dr. F. E. Peiser, in _Keilschriftliche
Acten-stücke_, No. 1. It is dated in the twenty-eighth year of the reign
of Nabû-aplu-iddina, _circa_ B.C. 858, and the eleventh year of
Marduk-shum-iddina, _circa_ B.C. 842. It rehearses the contents of two or
more deeds by which a certain Kidinu came into possession of property in
the city of Dilbat.
(M38) The Cappadocian tablets are still somewhat of a problem. The first
notice of them was given by Dr. T. G. Pinches.(49) According to the
dealer’s account one acquired by the British Museum had come from
Cappadocia. The script was then quite unfamiliar and it was thought that
they were written in a language neither Semitic nor Akkadian. Various
attempts, which are best forgotten, were made to transcribe and translate
them under complete misapprehension of the readings of the characters. But
in 1891 Golénischeff published twenty-four tablets of the same stamp,
which he had acquired at Kaisarieh. His copies were splendidly done for
one who could make out very little meaning. But he showed that many words
were Assyrian and read many names. Professor Delitzsch(50) made a most
valuable study of them, and laid the foundation for their thorough
understanding. Professor P. Jensen(51) added greatly to our knowledge of
their reading and interpretation. Dr. F. E. Peiser then(52) gave a
transcription and translation of nine texts of contracts.
They are now recognized to be purely Semitic. They must have been written
in some place where Assyrian influence was all-powerful. There are many
names compounded of Ashur. They are dated by eponyms as in Assyria. The
discovery of many more of them at Boghaz Keui, Kara Eyuk, and elsewhere
published by Professor V. Scheil in the _Mémoires de la Mission en
Cappadoce par Ernest Chantre_, and commented on by M. Boissier,(53) make
it certain that they are from this region.
If subject to Assyria, their date may be before the earliest eponyms whose
date is known from the Canon lists. They may be contemporary with the very
earliest kings of Assyria. But it is not impossible that the eponyms
referred to were local only and not Assyrian in origin. Dr. Peiser put
them after the First Dynasty of Babylon, but before the Third Dynasty.
They are full of unusual forms of words and have a phraseology of their
own. They cannot as yet be translated with any confidence. In general they
are very similar to the contracts, money-loans, and letters of the First
Dynasty of Babylon. As far as they can be understood, they offer no new
features of interest. The obscure phrases and words give rise to many
speculations which will be found in the above-mentioned works. These are
of great interest, but need further data for elucidation. They are too
questionable to be profitably embodied here.
(M39) The Elamite contract-tablets were found at Susa and are published by
Professor V. Scheil in Tome IV. of the _Mémoires de la Délégation en
Perse_.(54)
In external form they closely resemble the Babylonian documents of a
similar nature. They are drawn up in practically the same way. But there
is a blunt directness about them which recalls the usages of the First
Dynasty of Babylon, rather than Assyria, or the Second Babylonian Empire.
Hence we have little to indicate date. Until we are better acquainted with
the Elamite script at various periods we cannot hope to date them.
They have many peculiar words and phrases. Some may be Elamite, or that
form of Semitic which obtained in Elam, but the rest of the language is
ordinary Babylonian. It is possible that some characters had a value in
Elam not known in Babylonia, or ideographic values not yet recognized.
But, as a rule, the general sense is fairly clear.
(M40) The legal documents of Assyria are in many respects a separate
group. They are sometimes said to have come from the library of
Ashurbânipal, which Mr. H. Rassam claims to have discovered at Kouyunjik
in 1852-54. But it seems far more probable that, as large numbers were
already found by Layard in 1849-51, we have rather to do with the contents
of some archives. The absence of any large number of temple-accounts seems
to exclude the probability that they were connected with a temple; but the
fact that nearly every tablet has for one principal party some officer of
the king, lends great probability to the view that the transactions were
really made on behalf of the king; or—to be more exact—of the palace in
Nineveh. The exceptions may be accounted for as really deeds concerned
with former sales; or mortgages of property, finally bought in for the
king. The conjecture is raised to a moral certainty by the contents of
such a collection as Knudtzon’s _Gebete an den Sonnengott_, found together
with them; which consisted of copies of the requests and inquiries made of
the Sun-god oracle regarding the troubles and difficulties of the king and
royal family, domestic as well as public, in the reigns of Esarhaddon and
Ashurbânipal. The letters too, found in the same collection, are the
letters received by the king from his officers in all parts of his realm.
The lists are connected with expenses of his household. Such votive
tablets as are preserved are concerned with offerings of the royal family,
or such high officers as probably were permanent inmates of the palace. We
have, in fact, the contents of the muniment chests of the Sargonid kings
of Assyria. That the royal library was mixed up with these documents may
be due to the contents of an upper chamber falling, when its floor was
burnt out; but the mixing may have been done by the discoverers.
In a very real sense these come from a record office, but are confined to
royal rather than state documents; though a few duplicates of charters
occur. Hence we look in vain for many classes of documents, such as are
common in the archives of temples or private families. We have no marriage
settlements, no adoptions, no partnerships.
Can we believe that such transactions were less common in Nineveh than
fifteen centuries before in Sippara, or Larsa, or Babylon; or later in
Babylon, Sippara, or Nippur? There cannot be a shadow of doubt that such
documents exist in shoals somewhere in the ruins of Nineveh and will one
day be found. Hence we must regard it as extremely improbable that the
ordinary citizens of Nineveh contributed the records of their transactions
to the Kouyunjik Collections now in the British Museum. They either kept
them in their own houses or in some temple archives. As will be seen
later, a few have already been found; but it is extremely difficult to
locate them exactly. It is quite certain that a few of the tablets in the
British Museum were found at other localities, such as Sherif Khan, Ashur,
Kalah, Erech, Larsa, and Babylon.
For the most part these appear to have been placed in one collection by
the discoverers, and only internal evidence can now decide where they were
found. But the great bulk of the Kouyunjik Collections, as far as
contracts, legal documents, and kindred tablets are concerned, are the
result of explorations conducted on the site of the ancient Nineveh, by
Layard and Rassam. They probably came from palace archives, and as a
result possess a special character of their own.
(M41) Aramaic dockets very early attracted the attention of
Assyriologists. The presence of short inscriptions in Aramaic on a few
contract-tablets naturally raised hopes, in the early days of
decipherment, of finding some check upon the reading of cuneiform. So far
as these went they were by no means inconsistent with the readings of the
cuneiform. But they were too few, too disconnected, and in themselves too
uncertain, to be of great value. Indeed, for many of them, it is the
cuneiform that now gives the key to their possible sense. The whole of
these Aramaic inscriptions have now been published by Dr. J. H. Stevenson
in his _Assyrian and Babylonian Contracts with Aramaic Reference Notes_,
where references to the literature will be found.
(M42) In connection with these Aramaic legends a number of the texts of
Assyrian contracts were published in the _Corpus Inscriptionum
Semiticarum_, _Pars Secunda_, _Tomus I_. A number more were published in
Vol. III. of the _Cuneiform Inscriptions of Western Asia_, by Sir H. C.
Rawlinson. A few others were published in various journals; and by Oppert
in his epoch-making treatise on the juristic literature, _Documents
Juridiques_; by Peiser, in Vol. IV. of Schrader’s _Keilinschriftliche
Bibliothek_; and by Strassmaier in his _Alphabetisches Verzeichnis_. The
whole of the texts of the Assyrian contracts from the Kouyunjik
Collections in the British Museum are now published in _Assyrian Deeds and
Documents recording the Transfer of Property, etc._ (three volumes
published).(55) A bibliography will be found there, on page ix of the
preface to Vol. I.
(M43) The very remarkable style which most of these tablets show is so
unlike the contemporary documents in Babylonia that we may expect that
transactions between private citizens in Assyria at this time were quite
different. A few such documents exist. Professor V. Scheil, in the
_Receuil de Travaux_,(56) published the text of four which are quite
unlike any of the Kouyunjik examples.
(M44) In _Assyrian Deeds and Documents_ the same plan of arrangement was
followed, to some extent, as in this work. Being all of one epoch and
showing no signs of any development the tablets were grouped,
provisionally, according to subjects. The arrangement in each group was to
place first the best specimens of the group and then the injured and
fragmentary specimens, which thus received illustration, and in some
cases, could be restored. It would, however, be an error to regard the
Assyrian documents as the intermediate link between the old and new
Babylonian documents, though they belong chronologically to an interval
which precedes the latter immediately. The Assyrian scribe used a formula
that was closer to the Old Babylonian than to the contemporary Babylonian.
It had an independent development, looking rather to the royal charters as
models than to the private document. In fact, the closest parallels of all
are to be found on the Babylonian boundary-stones and charters. When,
therefore, in our chronologically arranged sketch of a given subject,
reference is made to Assyrian usage, next to that of the First Dynasty of
Babylon, it will be understood that only the nature of the transaction is
akin; and that, as a rule, the verbal treatment of it is quite distinct.
(M45) A few contemporary documents have reached us from the cities of
Babylonia. They have little or no affinity with the immediately preceding
groups, but carry on the local development from the second epoch. They
come from many sites and are published in a variety of journals. A
tentative list of them will be found in the Appendix. They refer to
transactions in the reigns of Shalmaneser IV., Sargon II.,
Merodach-baladan II., Sennacherib, Esarhaddon, Shamash-shum-ukin,
Kandalanu, Ashur-etil-ilâni, and Sin-shar-ishkun. In style they belong to
the next epoch.
(M46) The second Babylonian empire, commencing with Nabopolassar and
extending to the end of the independent existence of a Babylonian empire,
is represented by thousands of tablets in our museums. A small part of
these has been published. Pater J. N. Strassmaier has given some one
thousand six hundred in his _Babylonische Texte_. Dr. Peiser published
many more in his _Keilinschriftliche Acten-stücke and Babylonische
Verträge_. The Rev. B. T. A. Evetts, Dr. Moldenke, Dr. Pinches and others
have published many more. A detailed list will be found in the Appendix.
(M47) In the times of the Persian kings very many documents were drawn up
very similar to these. The series is quite unbroken, down through
Macedonian rule, the Arsacid period, to as late as B.C. 82. The list will
be found in the Appendix.
Of the whole period we may say that the variety and quantity of written
evidence are amazing. Every sort of transaction that could be made the
subject of a deed or memorandum was written down. They come from most of
the chief cities in Babylonia.
(M48) The classification of this material is no easy task. As in the case
of the Bibliography, so here, the first and apparently the only attempt
has been made by Dr. C. Bezold in his invaluable _Kurzgefasster
Überblick_.
The view taken there depended upon Professor Oppert’s estimate of the
nature of the documents and that again was often founded on imperfect
copies of the text. A great advance has since been made in understanding
the contents of the texts then published, and the number published has
enormously increased.
The publications, where accompanied by translations, have generally given
some classification. Dr. Peiser, in the fourth volume of Schrader’s
_Keilinschriftliche Bibliothek_, gives most suggestive indexes.(57) Dr.
Tallqvist, in his _Sprache der Contrakte Nabunâ’id’s_ gives a very
valuable classification.(58) Dr. Meissner classified his texts in
_Altbabylonische Privatrecht_.
A number of monographs have been written collecting the different texts
from many sources bearing on one subject, thus acting as a kind of
classification. A complete work on the subject is still needed.
(M49) Of great importance are Dr. F. E. Peiser’s _Jurisprudentiæ
Babylonicæ quæ supersunt, Cöthen_, 1890 (Inaug. Diss.); Dr. B. Meissner’s
_De Servitute babylonico-assyriaca_, Leipzig, 1882 (Inaug. Diss.); and Dr.
V. Marx, _Die Stellung der Frauen in Babylonien (Nebuchadnezzar to Darius
__B.C.__ 604-485)_ published in the _Beiträge zur Assyriologie_, Vol. IV.,
pp. 1-77. These should certainly be read by any serious student of the
times. To reproduce their contents would occupy too much space.
On the whole subject of social life, as illustrated by these contracts,
there is a valuable study by Dr. F. E. Peiser, called _Skizze der
Babylonischen Gesellschaft_.(59) Professor Sayce’s _Babylonians and
Assyrians_ in the _Semitic Series_, 1900, is an excellent account, though
in some respects not sufficiently critical. But in all such preliminary
work it is easy to feel sure of conclusions which have to be revised with
fuller knowledge. Time will doubtless show this to be true of what is said
in the present work. But wherever doubt is felt by the writer, it will be
indicated.
LAWS AND CONTRACTS
I. The Earliest Babylonian Laws
(M50) 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.
(M51) 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.”
(M52) 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.
(M53) 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.
(M54) 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 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:
(M55)
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.
(M56)
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.
(M57)
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.
(M58)
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.
(M59)
V. If a wife hates her husband and has said, “You are not my
husband,” one shall throw her into the river.
(M60)
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.
(M61)
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 Hommel(60)
renders _durchbrennen_, Delitzsch(61) 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.
II. The Code Of Ḥammurabi
(M62) § 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.