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:(217) 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:(218)
(M295)
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 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.
(M296) 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.
(M297) 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.
(M298) 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.
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.
(M299) 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.
(M300) 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.
(M301) 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 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.(219) 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.
(M302) A common type of case was a vindication of right to some sort of
property. Thus(220) 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.
(M303) 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.
(M304) Men did not always stand their trial, but sometimes settled the
case by an agreement out of court.(221) 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.
(M305) The decision of a dispute was not always referred to professional
judges. A very interesting example occurs,(222) 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.(223)
(M306) Connected with legal decisions are the undertakings to appear
before the court, of which we have several examples. Thus,(224) 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.(225)
(M307) The production of witnesses is the subject of not a few
undertakings. Thus,(226) by a fixed date, five days hence, A shall bring B
to be questioned about some asses belonging to the royal household.
Again,(227) N swears to come, six days hence, and bring another, on
account of the witness about A. He further undertakes to establish the
partnership. 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,(228) 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,(229) 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.(230)
(M308) 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.(231) The witnesses whose names appear on the document do not
seem to have been summoned. But in one case,(232) 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.
VII. Public Rights
(M309) 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.
(M310) 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(233)
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 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.(234) Medes rent a Babylonian’s
house, and live there.(235) A Persian buys of a Babylonian.(236) A Persian
father gives Babylonian names to his children.(237) 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.
(M311) 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.(238) Riparians were responsible for the care of the canal
as shown in the Code.(239)
(M312) The state undertook some duties. In the Code we note that the
palace would, failing other means, redeem an official from captivity.(240)
(M313) 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.(241) 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.(242)
(M314) 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.
VIII. Criminal Law
(M315) 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.
(M316) 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.”(243)
(M317) In later Babylonian times we have a reference to imprisonment
arising out of a case of guarantee.(244) 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.
(M318) A case of assault and forcible entry into a house occurs.(245) 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.
(M319) A case of procuration of desertion, forbidden by the Code(246)
under pain of death, was condoned by the injured party.(247) 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.
(M320) Adultery was punished in the Code by drowning.(248) The Code in
this and similar cases of sexual irregularity is explicit that the case
must be flagrant. Suspicion was not enough.(249) But conduct leading to
scandal had to be atoned 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.(250)
A woman’s procuring her husband’s death, for love of another, was punished
by impalement.(251)
(M321) Incest on the part of a man with his own daughter involved his
banishment.(252) 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.(253) 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.(254)
If a man committed incest with his own mother, both were burned.(255) If a
man had intercourse with his foster-mother, or step-mother, who had borne
children to his father, he was disinherited.(256)
IX. The Family Organization
(M322) 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.
(M323) The Code is explicit that a woman was not a wife without
“bonds.”(257) 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 not be liable for his wife’s debts before marriage.(258) 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.
(M324) 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.
(M325) 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 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.
(M326) 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.
(M327) 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.
(M328) 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.(259) The tablet is too fragmentary for us 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_.(260)