Babylonian and Assyrian Laws, Contracts and Letters
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Title: Babylonian and Assyrian Laws, Contracts and Letters
Author: C. H. W. Johns
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*** START OF THE PROJECT GUTENBERG EBOOK BABYLONIAN AND ASSYRIAN LAWS, CONTRACTS AND LETTERS ***
Library of Ancient Inscriptions
Babylonian And Assyrian
Laws, Contracts and Letters
By
C. H. W. Johns, M.A.
Lecturer in Queens’ College, Cambridge, and
King’s College, London
New York
Charles Scribner’s Sons
1904
CONTENTS
Dedication
Preface
List Of Abbreviations
Sources And Bibliography
Laws And Contracts
I. The Earliest Babylonian Laws
II. The Code Of Ḥammurabi
III. Later Babylonian Law
IV. The Social Organization Of The Ancient Babylonian State
V. Judges, Law-Courts, And Legal Processes
VI. Legal Decisions
VII. Public Rights
VIII. Criminal Law
IX. The Family Organization
X. Courtship And Marriage
XI. Divorce And Desertion
XII. Rights Of Widows
XIII. Obligations And Rights Of Children
XIV. The Education And Early Life Of Children
XV. Adoption
XVI. Rights Of Inheritance
XVII. Slavery
XVIII. Land Tenure In Babylonia
XIX. The Army, _Corvée_, And Other Claims For Personal Service
XX. The Functions And Organization Of The Temple
XXI. Donations And Bequests
XXII. Sales
XXIII. Loans And Deposits
XXIV. Pledges And Guarantees
XXV. Wages Of Hired Laborers
XXVI. Lease Of Property
XXVII. The Laws Of Trade
XXVIII. Partnership And Power Of Attorney
XXIX. Accounts And Business Documents
Babylonian And Assyrian Letters
I. Letters And Letter-Writing Among The Babylonians And Assyrians
II. The Letters Of Ḥammurabi
III. The Letters Of Samsu-Iluna And His Immediate Successors
IV. Private Letters Of The First Dynasty Of Babylon
V. Sennacherib’s Letters To His Father, Sargon
VI. Letters From The Last Year Of Shamash-Shum-Ukîn
VII. Letters Regarding Affairs In Southern Babylonia
Letters About Elam And Southern Babylonia
IX. Miscellaneous Assyrian Letters
X. Letters Of The Second Babylonian Empire
Appendix
I. The Prologue And Epilogue To The Code Of Ḥammurabi
II. Chronology
III. Weights And Measures
IV. Bibliography Of The Later Periods
Index
Footnotes
DEDICATION
To
My Mother
In Memory Of Loving Help
PREFACE
The social institutions, manners, and customs of an ancient people must
always be of deep interest for all those to whom nothing is indifferent
that is human. But even for modern thinkers, engrossed in the practical
problems of our advanced civilization, the records of antiquity have a
direct value. We are better able to deal with the complicated questions of
the day if we are acquainted with the simpler issues of the past. We may
not set them aside as too remote to have any influence upon us. Not long
ago men looked to Greece and Rome for political models. We can hardly
estimate the influence which that following of antiquity has had upon our
own social life.
But there is a deeper influence even than Greek politics and Roman law,
still powerfully at work among us, which we owe to a more remote past. We
should probably resent the idea that we were not dominated by Christian
principles. So far as they are distinct from Greek and Roman ideals, most
of them have their roots in Jewish thought. When a careful investigation
is made, it will probably be found that the most distinctive Christian
principles in our times are those which were taken over from Jewish life,
since the Old Testament still more widely appeals to us than the New. But
those Jewish ideas regarding society have been inherited in turn from the
far more ancient Babylonian civilization. It is startling to find how much
that we have thought distinctively our own has really come down to us from
that great people who ruled the land of the two streams. We need not be
ashamed of anything we can trace back so far. It is from no savage
ancestors that it descends to us. It bears the “hall mark,” not only of
extreme antiquity but of sterling worth.
The people, who were so highly educated, so deeply religious, so humane
and intelligent, who developed such just laws, and such permanent
institutions, are not unprofitable acquaintances. A right-thinking citizen
of a modern city would probably feel more at home in ancient Babylon than
in mediæval Europe. When we have won our way through the difficulties of
the language and the writing to the real meaning of their purpose and come
into touch with the men who wrote and spoke, we greet brothers. Rarely in
the history of antiquity can we find so much of which we heartily approve,
so little to condemn. The primitive virtues, which we flatter ourselves
that we have retained, are far more in evidence than those primitive vices
which we know are not extinct among us. The average Babylonian strikes us
as a just, good man, no wild savage, but a law-abiding citizen, a faithful
husband, good father, kind son, firm friend, industrious trader, or
careful man of business. We know from other sources that he was no
contemptible warrior, no mean architect or engineer. He might be an
excellent artist, modelling in clay, carving rocks, and painting walls.
His engraving of seals was superb. His literary work was of high order.
His scientific attainments were considerable.
When we find so much to approve we may naturally ask the reason. Some may
say it is because right was always right everywhere. Others will try to
trace our inheritance of thought. At any rate, we may accord our praise to
those who seized so early in the history of the race upon views which have
proved to be of the greatest and most permanent value. Perhaps nowhere
else than in the archives of the old Assyrian and Babylonian temples could
we find such an instructive exhibition of the development of the art of
expressing facts and ideas in written language. The historical
inscriptions, indeed, exhibit a variety of incidents, but have a painful
monotony of subject and a conventional grandeur of style. In the contracts
we find men struggling for exactness of statement and clearness of
diction. In the letters we have untrammelled directness of address,
without regard to models of expression. In the one case we have a
scrupulous following of precedent, in the other freedom from rule or
custom. One result is that while we are nearly always sure what the
contract said and intended, we often are completely unable to see why the
given phrases were used for their particular purpose. Every phrase is
technical and legal, to a degree that often defies translation. On the
other hand, the letters are often as colloquial in style as the contracts
are formal. Hence they swarm with words and phrases for which no parallel
can be found. Unless the purpose of the letter is otherwise clear, these
words and phrases may be quite unintelligible. Any side issue may be
introduced, or even a totally irrelevant topic. While the point of these
disconnected sentences may have been perfectly clear to the recipient of
the message, we cannot possibly understand them, unless we have an
intimate acquaintance with the private life and personal relations of the
two correspondents.
Hence, quite apart from the difficulties of copying such ancient
inscriptions, often defaced, originally ill-written, and complicated by
the personal tastes of individual scribes for odd spellings, rare words,
or stock phrases; besides the difficulties of a grammar and vocabulary
only partly made out; the very nature of both contracts and letters
implies special obscurities. But the peculiarities of these obscurities
are such as to excite curiosity and stimulate research.
The wholesome character of the subject-matter, the absence of all
possibility of a revision in party interests, the probable straightforward
honesty of the purpose, act like a tonic to the ordinary student of
history. Nowhere can he find more reliable material for his purpose, if
only he can understand it. The history he may reconstruct will be that of
real men, whose character and circumstances have not yet been
misrepresented. He will find the human nature singularly like what he may
observe about him, once he has seen through superficial manners and
customs.
One important point cannot be too strongly insisted upon. Numerous as our
documents are, they do not form a continuous series. One collection is
chiefly composed of temple archives, another comes from a family
deed-chest, where only such documents were preserved as were of value to
the persons who collected them. At one period we may have a great number
of documents relating to one sort of transaction. In the next period we
may have hardly any reference to similar transactions, but very complete
evidence regarding other matters. We may assume that, in such a
conservative country as Assyria or Babylonia, things went on for ages in
much the same way. Conclusions rightly drawn for early times are probably
true for the later periods also. As far as we can test this assumption, it
holds good. We may even assume that the converse is true, but that is more
doubtful.
Thus, we find that the practice of taking a pledge as security for debt is
fully established for later times and we may therefore hesitate to deny
its existence in early periods, although we have no direct evidence on the
point. This absence of evidence may be due to the nature of the early
collections. It may be an accident. It may also be due to the fact that
the tablet acknowledging a loan was usually broken up on the return of the
sum. But it might also be the fact that pledges were not usual in early
times. Such was, indeed, formerly the conclusion drawn from the absence of
documents referring to pledges; but Dr. B. Meissner pointed out that the
legal phrase-books bore witness to the existence of the custom. The
discovery of the Code of Ḥammurabi has shown that the practice not only
existed, but was regulated by statute in his time. Hence the argument from
silence is once more shown to be fallacious.
On the other hand, it is well to avoid a dogmatic statement of the
existence of a practice before the date at which we have direct evidence
of it: thus, it has been stated that the tithe was paid in Babylonia “from
time immemorial.” The only direct evidence comes from the time of
Nebuchadrezzar II. and later. In view of such an early antiquity as that,
the use of the phrase “time immemorial” was perhaps once justified. But we
are now equipped with documentary evidence concerning customs two or three
thousand years earlier. Until we can discover some direct evidence there
of tithe, we must content ourselves with saying that it was regularly paid
under the Second Empire of Babylonia. We may be firmly convinced that a
custom so widespread did not spring into being all at once. But the tithe
may have been a composition for earlier dues, and as such may have been
introduced from Chaldea by Nabopolassar. It may therefore not have been of
native Babylonian growth.
In this and many similar cases it is well not to go beyond the evidence.
To some extent the plan of this work must necessarily be different from
that of the rest of the series. When a historical inscription is once well
translated its chief bearings can be made out and it is its own
interpreter to a large extent. But the object in a contract is to legally
bind certain parties to a course of action, and there its translation
ends. We do not find much interest now in the obligations of these
parties, save in so far as they illustrate the progress of civilization.
It is the conclusion we are to draw which gives the interest. When we have
reached that, a thousand more contracts of the same type add nothing to
that point. We may use them to make a study of proper names, or to correct
our notions of chronology by their dates, or to draw up genealogies, or
even to elaborate statistics of occurrences of particular forms of words,
of prices, and the like; or try to reconstruct the topography of a town;
but from the point of view of a student of law and history, a thousand are
little better than one.
As a rule, however, we rarely find a fresh example of an old type without
some small deviation, which is worth recording. But to translate it, for
the sake of that small difference, would fill a book with examples, so
similar as to be wearisome in their monotony. The only way then is to
select some bold example, translate it as a fair average specimen, and
then collect in an introduction and notes the most interesting additional
items of information to be gathered from others of the type. Hence most of
the types here selected have involved the reading and study of scores of
texts, though but one is given in translation. Other points of great
interest arise, as for example, the obligations to public service, which
are not the direct subject of any one text. Hence, no single example can
be selected for translation. The data of many texts must be collected, and
only a sentence here and there can be utilized for translation. Hence,
while other volumes of the series are properly translations, with brief
introductions and a few notes, this must consist of copious introductions
and many notes with a few translations.
Of course, all technical, philological and historical discussions must be
avoided. Those who wish to find further examples, illustrating the points
given, will be referred to the sources and commentaries which give almost
endless repetitions of the same type. As a rule, a fresh example, which
has not been translated before, will be used here. In some cases, however,
where the most typical examples have already been used, they are
reproduced.
The more important and new details are substantiated by references in
foot-notes. When several references could be given, it has been the rule
to give only one. For fuller information the literature of the subject may
be consulted. But where the Assyrian or Babylonian words are given, the
reader will consult the lexicons first. There are many admirable
glossaries attached to the editions of texts, which for students are a
valuable supplement to the lexicons. All philological discussions are, of
course, excluded. As a rule, doubtful interpretations will be ignored or
at least queried. It is, on the other hand, impossible to give detailed
proofs of what is certain to the writer, when it disagrees with recognized
authorities. Nor is it desirable to puzzle the reader with alternative
views, when there is no opportunity for him to judge of their merits.
Every attempt will be made to discard non-essentials. Thus, in order to
insure that there should be no mistake as to the persons intended, the
ancient scribe usually gave not only the name, but the father’s name, and
often added the name of his tribe, or his occupation. For example,
“Ardi-Ishtar, son of Ashur-bânî, the son of Gaḥal,” might be the scribe’s
careful specification of one party to some transaction. But unless some
other party is a relation and the transaction explicitly concerns what
could take place between relations, the whole line gives us no information
of value for illustrating the subject for which it is quoted. Indeed, in
most cases, the name itself is of no interest. It is true that the names
have a value of their own; but that is aside from the purpose of this
book. The examples are selected to illustrate legal points, not for the
sake of the names. And indeed, the few interesting names so given would be
insufficient to serve any useful purpose; they might even be misused, for
no permanent results can be obtained by picking up here and there a name,
with some fanciful likeness to Abraham, or Jacob, unless a complete list
of similar names be available to check and control the readings.
Hence, as a rule, the name of a party is condensed into a single letter,
chosen usually in order to suggest the part played by the person in the
transaction. Thus S stands for the seller, B for the buyer, J for the
judge, C for the creditor, L for the lender, D for the debtor or borrower,
and so on. These abbreviations may be used without any detriment to the
argument, as the context usually defines the relation and there is no need
to remember what they mean. This seems preferable, for the most part, to
the Continental system of using A-A-G for the above name.
As a further abbreviation, all lists of witnesses are excluded. The date
is usually suppressed, for, unless we are following a series of
transactions between the same parties, nothing more than the epoch is of
importance. As the material is arranged by epochs, there can be no
question in this regard. If any evolution of process or any reference to
former transactions is involved, so that the date is important, it is
given.
A collection of legal documents may be studied in a variety of ways.
Perhaps the least productive plan is to ransack them for illustrations of
a theory, or a particular point. When the theory is already well known, as
in the case of Roman or mediæval law, such a procedure is justifiable, but
when the theory has to be made out, it is wellnigh inexcusable. Some
valuable monographs have followed this method, but they can hardly expect
to give permanent results. For comparative purposes our material is so
new, and so little worked, that it is sheer waste of time to seek for
parallels elsewhere until everything is clearly made out to which
parallels are to be sought. The whole bulk of material must be read
through and classified. Until this is done, some important point may
easily be overlooked.
The first attempts at classification will be provisional. A certain amount
of overlapping is sure to occur. For example, slave sales obviously form a
provisional group. But slaves were sold along with lands or houses. Shall
these sales be taken into the group? The sales of lands may be another
group. To which group shall we assign the sale of a piece of land and the
slaves attached to it? To answer that question we may examine the sales of
slaves and the sales of lands to see if either group has peculiarities,
the recurrence of which in a sale of land and slaves might decide. But we
soon find that a slave was sold exactly like a piece of land or any
chattel. The only exception is that certain guarantees are expected with
the slave, which differ from those demanded with a piece of land. On the
whole, then, the chief group will be “sales,” with subdivisions according
to the class of property used. Hence we cannot assume that there was
already present to legal consciousness a difference between real and
personal property, or in any other sense that a slave was a person. He was
a chattel.
The classification which will be adopted is not one that will suit modern
legal ideas. It depends on the form of document alone. If two documents
have the same type of formula, they will be grouped together. A future
revision will, no doubt, assign to many of these a place in modern
schemes. But it is very easy to be premature in assigning an ancient
document to modern categories.
The groups will be subdivided according to subject-matter. The order of
the groups will be determined by the greater or less complexity of the
documents. It is best to take those first which can be easily made out.
The experience gained in discussing them will be of great service in
dealing with more complicated cases. The reader must not, however, suppose
that no obscurities will remain. Subsequent investigation will lead to
redistribution. Each such revision will, however, bring us nearer to sound
results.
One of the most interesting and instructive methods of dealing with a
large collection of documents is to group together the transactions,
distributed over a number of years, of one man, or of a single family.
This method has often been adopted and makes most fascinating reading.
Thus, M. V. Revillout, in the appendix to M. E. Revillout’s lectures
entitled _Les obligations en droit egyptien_, under the title of _Une
famille des commerçants_, discussed the interrelations of a large number
of tablets published by Strassmaier. These had a special connection, being
found, and practically kept, together. They are concerned chiefly with the
business transactions of three persons and their descendants. The three
men do not seem to have been related, but to have become partners. The
first transaction in which they are concerned is an equitable division of
property which they had held in common. They and their descendants lived
side by side in Larsa and gradually extended their possessions on every
side. They were neighbors to two wealthy landowners from whom and from
whose descendants they gradually acquired lands and houses. Especially did
two brothers, sons of one of the original three, buy up, piece by piece,
almost all the property of these two neighboring families. Further, in
acquiring a piece of land, they seem to have come into possession of the
deeds of sale, or leases, of that plot, which had been executed by
previous owners. Thus, we can, in some cases, follow the history of a plot
of land during several reigns.
Such a collection of documents probably did not come from the public
archives, but from the muniment-chest of a private family, or of a firm of
traders. That duplicates of some of these tablets should have been found
in other collections, points either to the collections having been
purchased from native dealers, who put together tablets from all sources,
or to the duplicates having been deposited in public archives, as a kind
of registration of title.
In Assyrian times the transactions of the great Rîmâni-Adadi, the chief
charioteer and agent of Ashurbânipal, who for some thirteen years appears
almost yearly, as buyer or seller, lender or borrower, on some forty
tablets, may serve as a further example,(1) or we may note how Baḥiânu
appears, chiefly as a corn lender, year after year, for thirty-three
years, on some twenty-four tablets.(2)
For the Second Empire of Babylonia, Professor J. Kohler and Dr. F. E.
Peiser have given some fine examples of this method. Thus, for the
bankruptcy of Nabû-aplu-iddin,(3) they show that the creditors distrained
upon the bankrupt’s property and found a buyer for most of it in a great
Neriglissar, afterwards King of Babylon. The first creditor was paid in
full, another received about half of the amount due to him, a third about
the same, while a fourth obtained less than a quarter of what was owed
him. They also follow out the fortunes of the great banking firm of
Egibi(4) for fully a century. The sketch, of course, is not complete, and
can only be made so by a prolonged search through thousands of documents
in different museums; but it is intensely interesting and written with
wonderful insight and legal knowledge. Another example is the family, or
guild, of the priests of Gula.(5) This is less fully made out but most
valuable, as far as it goes. In both cases a genealogy is given extending
over many generations.
Later still, the Babylonian Expedition of the University of Pennsylvania,
in the ninth volume of Cuneiform Texts, gives a collection of the business
documents of one firm, “Murashu Sons, of Nippur,” in the reign of
Artaxerxes I. Here we have to do with a family deed-chest, a collection of
documents found together and fortunately kept together.
But this method, attractive though it is, cannot be followed here. The
reader is best led on from the known to the unknown. Those things must be
taken first which must be understood in order to appreciate what is placed
later. We consider first the law and the law-courts. The reader can thus
follow the references to procedure which occur in the other sections. The
rights of the State, the family, and the private individual come next.
Then we learn of the classes of property and the various ways of disposing
of it. After that is taken up a variety of disconnected topics, whose
order is mainly indifferent. Some overlapping of divisions is sure to
occur in any order. This system has been found, after many permutations,
to present the least inconvenience.
While it is hoped that this volume will give a fairly complete account of
what is really known and also point out some things that are reasonably
conjectured to be true, it is fully recognized that much remains to be
done. Indeed, it may serve by its omissions to redirect attention to
openings for future fruitful work.
LIST OF ABBREVIATIONS
A. B. R. _Aus dem babylonischen Rechtsleben._ Professor J. Kohler and Dr.
F. E. Peiser. Leipzig, 1890-.
A. D. B. _Assyrian Doomsday Book._ Vol. XVII of _Assyriologische
Bibliothek_. Leipzig, 1901.
A. D. D. _Assyrian Deeds and Documents._ In three vols. Cambridge, 1898-.
A. J. S. L. _American Journal of Semitic Languages and Literatures._
Chicago.
A. O. F. _Altorientalische Forschungen._ Dr. H. Winckler. Leipzig, 1893-.
B. A. L. _Babylonian and Assyrian Life._ Professor A. H. Sayce. New York,
1901. (Semitic Series.)
B. A. S. _Beiträge zur Assyriologie._ Professors Delitzsch and Haupt.
Leipzig, 1890-.
B. E. P. _The Babylonian Expedition of the University of Pennsylvania._
Series A. Cuneiform Texts. 1898-.
B. V. _Babylonische Verträge._ Dr. F. E. Peiser. Berlin, 1890.
C. T. _Cuneiform Texts from Babylonian Tablets, etc., in the British
Museum._ London, 1896-.
D. E. P. _Délégation en Perse, Memoires._ Pub. by French Ministry of
Instruction. Professor V. Scheil. 1900-.
E. B. H. _Early Babylonian History._ Dr. H. Radau. New York, 1900.
H. A. B. L. _Assyrian and Babylonian Letters._ Professor R. F. Harper.
Chicago, 1892-.
H. W. B. _Assyrisches Handwörterbuch._ Professor Delitzsch. Leipzig, 1894.
I R., II R., III R., IV R., V R. _The Cuneiform Inscriptions of Western
Asia._ H. C. Rawlinson. London, 1861, 1866, 1870, 1880-4.
K. A. S. _Keilinschriftliche Aktenstücke._ Dr. F. E. Peiser. Berlin, 1889.
K. B. _Keilinschriftliche Bibliothek._ Professor Eb. Schrader. Berlin,
1889-.
K. L. Ḥ. _The Letters and Inscriptions of Ḥammurabi._ Three vols. L. W.
King, M.A. London, 1898-.
K. P. See A. B. R.
L. H. See K. L. Ḥ.
H. A. P. _Beiträge zum altbabylonischen Privatrecht._ Dr. Br. Meissner.
Leipzig, 1893.
P. S. B. A. _Proceedings of the Society of Biblical Archæology._ London,
1872-.
_Rev. Ass._ _Revue d’Assyriologie._ Professors J. Oppert and E. Ledrain.
Paris, 1884-.
Z. A. _Zeitschrift für Assyriologie._ Professor C. Bezold. Leipzig, 1886-.
Z. K. F. _Zeitschrift für Keilschriftforschung._ Professor C. Bezold.
Leipzig, 1884-.
_Camb._, _Cyr._, _Dar._, _Ev. Mer._, _Nbd._, _Nbk._, _Nerig._, denote the
volumes of _Babylonische Texte_; _Inschriften von Cambyses_, _Cyrus_,
_Darius_, _Evil Merodach_, _Nabonidus_, _Nebuchodonosor_, _Neriglissar_,
pub. by Pater J. N. Strassmaier. Leipzig, 1887-.
H denotes the text published in H. A. B. L.
K denotes a text from Kouyunjik, now in the British Museum.
S denotes a text at Constantinople, from Sippara.
V. A. Th. denotes a text in the Berlin Museum.
B, B1, B2 denote texts of the collections “from Warka,” Bu. 88-5-12, and
Bu. 91-5-9.
SOURCES AND BIBLIOGRAPHY
(M1) The chief sources from which is derived our knowledge of Babylonian
and Assyrian law are the contemporary inscriptions of the people
themselves. These are not supplemented to any appreciable extent by the
traditions of classical authors. So far as they make any references to the
subject, their opinions have to be revised by the immeasurably greater
knowledge that we now possess, and seem to be mostly based upon
“travellers’ tales” and misapprehensions.
These inscriptions are now preserved in great numbers in European and
American museums, and have only been partly published. The bibliography is
very extensive. For the earlier attempts to read and explain these
documents the reader may refer to Professor C. Bezold’s _Kurzgefässter
Überblick über die babylonisch-assyrische Litteratur_,(6) which gives a
fairly complete account up to 1887. Of course, many books and memoirs
there mentioned have now only a historical interest for the story of
decipherment and explanation. These, however, may be studied with the
greatest profit after having first become acquainted with the more recent
works.
(M2) The division which is adopted in this work, “law, contracts, and
letters,” is only conventional. The three groups have much that is common
and mutually supplement one another. Previous publications have often
treated them more or less together, both as inscriptions and as minor
sources of history. Hence it is not possible to draw up separate lists of
books treating each division of the subject. Only those books or articles
will be referred to which are most valuable for the student. Many of them
give excellent bibliographies of their special subject.
(M3) The contemporary sources include actual codes of law, or fragments of
them, legal phrase-books, and legal instruments of all sorts. From the
last-mentioned source almost all that is known of ancient Babylonian law
has been derived. The historical and religious inscriptions contribute
very little. The consequence is that, except from the recently discovered
Code of Ḥammurabi scarcely anything is known of the law in respect to
crimes. Contracts and binding agreements are found in great profusion; but
there is nothing to show how theft or murder was treated.
Marriage-contracts tell us how adultery was punished. Agreements or legal
decisions show how inheritance was assigned. Consequently our treatment of
law and contracts must regard them as inseparable, except that we may
place first the fragments of actual codes which exist.
(M4) The letters are much more distinct. Each is a separate study, except
in so far as it can be grouped with others of the same period in attempts
to disentangle the historical events to which they refer. The deductions
as to life and manners are no less valuable than those made from legal
documents. In both wording and subject-matter they often illustrate legal
affairs and even directly treat of them.
(M5) A first duty will be carefully to distinguish epochs. Great social
and political changes must have left some mark upon the institutions we
are to study. As far as possible, the material has been arranged for each
subject chronologically.
(M6) The longest and by far the most important ancient code hitherto
discovered is that of Ḥammurabi (_circa_ 2250 B.C.). The source for this
is a block of black diorite about 2.25 metres high, tapering from 1.90 to
1.65 metres in circumference. It was found by De Morgan at Susa, the
ancient Persepolis, in December, 1901, and January, 1902, in fragments,
which were easily rejoined. The text was published by the French Ministry
of Instruction from “squeezes” by the process of photogravure, in the
fourth volume of the _Mémoires de la Délégation en Perse_. It was there
admirably transcribed and translated by Professor V. Scheil. In all, the
monument now preserves forty-four columns with some three thousand six
hundred lines. There were five columns more, which were once intentionally
erased and the stone repolished, probably by the order of some monarch of
Susa, who meant to put his own name and titles there. There have been
found other monuments in the French explorations at Susa, where the
Elamite monarch has erased the inscription of a Babylonian king and
inserted his own. This method of blotting out the name of a king was a
favorite device in the ancient East and is frequently protested against
and cursed in the inscription set up in Babylonia. This particular
inscription did not fail to call down similar imprecations, which perhaps
the Elamite could not read. But he stayed his hand, and we do not even
know his name, for he wrote nothing on the vacant space.
It seems probable that the stone, or at any rate its original, if it be a
copy, was set up at Sippara; for the text speaks of _Êbarra šuati_, “this
Ebarra,” which was the temple of Shamash at Sippara. At the head of the
obverse is a very interesting picture of Ḥammurabi receiving his laws from
the seated sun-god Shamash. Some seven hundred lines are devoted to the
king’s titles and glory; to enumerating the gods he reverenced, and the
cities over which he ruled; to invoking blessings on those who preserved
his monument and respected his inscription, with the usual curses on those
who did the opposite.(7) These belong to the region of history and
religion and do not concern us here. We may note, however, that the king
expected that anyone injured or oppressed would come to his monument and
be able there to read for himself what were the rights of his case.
(M7) The whole of this inscription is not entirely new matter. The scribes
of Ashurbânipal somewhere found a copy, or copies, of this inscription and
made it into a series of tablets. Probably their originals were Babylonian
tablets, for we know that in Babylonia the Code had been made into a
series which bore the name of _Nînu ilu ṣîrum_, from the opening words of
the stele. But, judging from the colophon of the Assyrian series, the
scribes knew that the inscription came from a stele bearing the “image” of
Ḥammurabi. A number of fragments belonging to such copies by later scribes
were already published, by Dr. B. Meissner(8) and Dr. F. E. Peiser.(9)
These were further commented upon by Professor Fr. Delitzsch,(10) who
actually gave them the name “Code Hammurabi.” Some of these fragments
enable us to restore one or two sections of the lost five columns.
These fragments are now easily set in order and will doubtless lead to the
discovery of many others, the meaning of which has not yet been
recognized. They exhibit some variants of interest, showing that they were
not made directly from this particular monument. Even at Susa another
fragment was found of a duplicate stele. Hence we may hope to recover the
whole text before long.
(M8) The publication of the Code naturally excited great interest among
scholars. It appeared in October, 1902, and, during the next month, Dr. H.
Winckler issued a German translation of the Code under the title, _Die
Gesetze Hammurabis Königs von Babylon um 2250 v. Chr. Das Älteste
Gesetzbuch der Welt_, being _Heft 4_ of the fourth _Jahrgang_ of _Der alte
Orient_. This marked an advance in some points on Scheil’s rendering, but
is not entirely satisfactory. The present writer read a paper in October,
1902, before the Cambridge Theological Society, an abridged report of
which appeared in the January _Journal_. He further published a baldly
literal translation in February, 1903, entitled, _The Oldest Code of Laws
in the World_.(11) In the _Journal des Savants_ for October and November,
1902, M. Dareste gave a luminous account of the subject-matter of the
Code, especially valuable for its comparisons with the other most ancient
law-codes. This of course was based on Scheil’s renderings. In the
_Orientalistische Litteratur-Zeitung_ for January, 1903, Dr. H. Winckler,
reviewing the fourth volume of the _Mémoires_, gave a useful account of
the Code comparing it with some of the previously published fragments.
(M9) The comparison with the Mosaic Code was sure to attract notice,
especially as Professor F. Delitzsch had called the attention of the
public to it, in his lecture entitled _Babel und Bibel_, even before more
of the Code was known than the fragments from Nineveh. Dr. J. Jeremias has
published a small book called _Moses und Hammurabi_, in which he deals
with the relations pretty thoroughly. Professor C. F. Kent has also
examined them in his article entitled _The Recently Discovered Civil Code
of Hammurabi_, in _The Biblical World_ for March, 1903. Some remarks on
the subject are to be found in the _New York Independent_, December 11,
18, 1902, and January 8, 15, 22, 1903, accompanying a translation. All the
above follow Winckler’s renderings.
The translation here given makes use of the above works, but must be
regarded as independent. It is impracticable to detail and justify the
changes made. The renderings can hardly be regarded as final, where actual
contracts do not occur to illustrate the Code; but there is very little
doubt that we know the tenor of these laws with substantial accuracy.
Professor V. Scheil divided the text of the Code into sections according
to subject-matter. But there are no marks of a division on the monument
and Scheil’s division is not adhered to in this work. For convenience of
reference, however, his original section-numbers are given in connection
with each law or sub-section of a law.
(M10) Among the treasures preserved in the library of Ashurbânipal and in
the archives of the Babylonian temples were a number of tablets and
fragments of tablets which recorded the efforts made by Semitic scribes to
render Sumerian words and phrases into Semitic. A large number of these
are concerned with legal subjects. A fairly complete list of those now in
the Kouyunjik Collections of the British Museum will be found in the fifth
volume of Dr. Bezold’s catalogue, page 2032. The greater part of them have
been published either in the British Museum _Inscriptions of Western
Asia_, in Dr. P. Haupt’s _Keilschrifttexten_, Vol. I. of the
_Assyriologische Bibliothek_, or in Dr. F. Hommel’s _Sumerische
Lesestücke_. In the latter will be found references to other publications.
Dr. B. Meissner further published a number of later Babylonian editions of
the same or allied series.(12)
(M11) The plan of the series to which most of these tablets belong is well
seen in Dr. Delitzsch’s _Assyrische Lesestücke_, fourth edition, pp.
112-14. The name by which the series is usually known, to which most of
these tablets belong, is the Semitic rendering of the first Sumerian
phrase given there, _ana ittišu_, “to his side.” The sections into which
the series is divided each deal with some simple idea and its expression
in Sumerian. But the principle of arrangement is not very clear. We may
take one section for example. “With him, with them, with me, with us, with
thee, with you,” are given in two columns, the first being the Sumerian
for these phrases, the second the Semitic rendering. Owing to the form of
treatment some of these texts have been called “paradigms.”
(M12) But the scribes also gave some fairly long and connected prose
extracts in Sumerian with their Semitic renderings. What these were
extracted from is still a question. Some of the clauses are known to have
been employed in the contracts. But some of these even may well have been
extracts from a code of laws. The name of “Sumerian Family Laws” has been
given to certain sections.(13) Others seem to have been extracted from a
Sumerian work on agriculture, with which Hesiod’s _Works and Days_ has
been compared. But at present we are not in possession of the complete
works from which these extracts are taken.
Such as they are, they have a value beyond that of enabling us to read
Sumerian documents. They often afford evidence of customs and information
which we get nowhere else.(14) The information given by them will be
utilized in the subsequent portions of this work. Their translation here
would serve no purpose, since they are very disconnected, but an example
may be of interest. One section reads, “He fastens the buckets, suspends
the pole, and draws up the water.” This is a vivid picture of the working
of a watering-machine, from which we learn its nature as we could not from
its name only.(15)
(M13) Legal documents constitute by far the larger portion of the
inscriptions which have come down to us from every period of Babylonian
and Assyrian history. In the library of Ashurbânipal alone they are
exceeded by the letters and even more by the works dealing with astrology
and omens. In some periods, however, we have only a few inscriptions from
monuments, or bricks.
(M14) To some extent the term “contracts,” which has commonly been applied
to them, is misleading. The use of the term certainly was due to a
fundamental misunderstanding, they being once considered as contracts to
furnish goods. They were even thought to be promises to pay, which passed
from hand to hand, like our checks, and so formed a species of “clay
money.” These views were both partially true, but do not cover the whole
ground.
They were binding legal agreements, sealed and witnessed. They were
binding only on the parties named in them. They were drawn up by
professional scribes who wrote the whole of the document, even the names
of the witnesses. Hence it is inaccurate to speak of them as “signed” by
anyone but the scribe, who often added his name at the end of the list of
witnesses. The parties and witnesses did impress their own seals at one
period, but later one seal, or two at most, served for all. It is not
clear whose seal was then used. But the document usually declares it to be
the seal of the party resigning possession.
(M15) As to external form, most of those which may be called “deeds”
consist of small pillow-shaped, or rectangular, cakes of clay. In many
cases these were enclosed in an envelope, also of clay, powdered clay
being inserted to prevent the envelope adhering. Both the inner and outer
parts were generally baked hard; but there are many examples where the
clay was only dried in the sun. The envelope was inscribed with a
duplicate of the text. Often the envelope is more liberally sealed than
the inner tablet. This sealing, done with a cylinder-seal, running on an
axle, was repeated so often as to render its design difficult to make out,
and to add greatly to the difficulty of reading the text. When the
envelope has been preserved unbroken, the interior is usually perfect,
except where the envelope may have adhered to it. Such double tablets are
often referred to as “case tablets.” The existence of two copies of the
same deed has been of great value for decipherment. One copy often has
some variant in spelling, or phrasing, or some additional piece of
information, that is of great assistance. The envelope was rather fragile
and in many cases has been lost, either in ancient times, or broken open
by the native finders, in the hope of discovering gold or jewels within.
But in any case, the envelope, so long as it lasted, was a great
protection; and there are few tablets better preserved than this class of
document.
In Assyrian times, few “case” tablets are preserved, they seem to have
gone out of fashion except for money-loans and the like. But it may be
merely an accident that so few envelopes are preserved. In the case of
letters, where the same plan of enclosing the letter in an envelope was
followed, hardly any envelopes have been found, because they had to be
broken open to read the letter. The owner of a deed may have had occasion
to do the same, but here there was less excuse, as the envelope was
inscribed with the full text.
In early times, another method of sealing was adopted. A small clay cone
was sealed and the seal attached to the document by a reed, which ran
through both. The seal thus hung down, as in the case of many old
parchment deeds in Europe.
(M16) The deeds were often preserved in private houses, usually in some
room or hiding-place below ground. In the case of the tablets from Tell
Sifr, which were found by Loftus _in situ_, three unbaked bricks were set
in the form of a capital U. The largest tablet was laid upon this
foundation and the next two in size at right angles to it. The rest were
piled on these and on the bricks and the whole surrounded by reed matting.
They were covered by three unbaked bricks. This accounts for their fine
preservation.
Others were stored in pots made of unbaked clay. The pots, as a rule, have
crumbled away, but they kept out the earth around. Sometimes this broke in
and crushed the tablets. In some cases they were laid on shelves round a
small room; but in others they seem to have been kept in an upper story,
and so were injured, when the floor fell through.
(M17) It seems certain that as a rule all deeds were executed in
duplicate, each party receiving a copy. The scribe often appears to have
kept another. At one time copies were also deposited in the public
archives, most probably the city temple or the governor’s palace. There
are indications that copies of deeds executed in the provinces were sent
to the capital. Whether this was in pursuit of a general policy of
centralization or only accidental in the few cases known to us is not
quite clear. In many instances we actually possess duplicates, sometimes
three copies of the same deed.
(M18) These documents are exceedingly varied in contents. The most common
are deeds relating to the sale or lease of houses, fields, buildings,
gardens, and the like; the sale or hire of slaves and laborers; loans of
money, corn, dates, wool, and the like; partnerships formed or dissolved;
adoption, marriage, inheritance, or divorce. But almost any alienation,
exchange, or deposit of property was made the subject of a deed. Further,
all legal decisions were embodied in a document, which was sealed by the
judge and given to both parties to the suit. These were often really deeds
by which the parties bound themselves to accept and abide by the
decisions. Some are bonds or acknowledgments of debt. A great many closely
allied documents are lists of money or goods which had been given to
certain persons. They were evidence of legal possession and doubtless a
check on demand for repayment.
(M19) The bibliography of the subject is best dealt with under each
general division; but reference must be made to works dealing with the
subject as a whole. Professor J. Oppert’s _Documents Juridiques_ was the
first successful attempt to deal with contracts in general and laid the
foundation of all subsequent work. Dr. F. E. Peiser and Professor J.
Kohler’s _Aus Babylonischen Rechtsleben_ deals with the later Babylonian
documents as far as they throw light upon social life and custom.
Professor Sayce’s _Babylonians and Assyrians_ makes large use of the data
given by the contracts. Dr. T. G. Pinches’s _The Old Testament in the
Light of the Monuments of Assyria and Babylonia_ also gives a very full
account of what may be gleaned from them. The present writer’s _Assyrian
Deeds and Documents_ makes an attempt to treat one branch fully. This work
can only present the most essential facts. The whole amount of material is
so vast, so much is yet unpublished, so many side-issues arise, all worth
investigating, that it can only serve to introduce the reader to a
fascinating and wide field of study.
(M20) The material with which we have to deal, for the most part, falls
very naturally into epochs. The early Babylonian documents, though very
numerous, are mostly of the nature of memoranda and include few letters or
contracts. The documents of the First Dynasty of Babylon are extremely
rich in examples of both contracts and letters. Then the Tell Amarna
letters form a distinct group. The Ninevite contracts and letters of the
Sargonid Dynasty are well marked as separate from the foregoing. Lastly,
those of the New Babylonian Empire are a group by themselves. A few
scattered examples survive which form intermediate groups, usually too
small to be very characteristic, and certainly insufficient to justify or
support any theory of the intermediate stages of development.
(M21) It must be observed that to a great extent these groups are not only
separated by wide intervals of time—several centuries as a rule—but that
they are locally distinct. The first comes from Telloh, the larger part of
the second from Sippara, the third from Egypt (or Syria), the fourth from
Assyria, the last from Babylonia. Whether the documents of Sippara in the
third period showed as great divergence from those of the second period as
the Tell Amarna letters do, or whether each group is fairly characteristic
of its age in all localities using the cuneiform script, are questions
which can only be answered when the other documents of that period are
available for comparison.
(M22) The documents of each group have marked characteristics in form of
script, in orthography, in language. So great are the differences that a
slight acquaintance with these characteristics will suffice to fix the
epoch of a given document. For the most part, however, these
characteristics are not such as can appear in translation. They will be
pointed out as far as possible in the opening sections dealing with each
group. The aim will be to select characteristic specimens of each group
for translation and to append a summary of what can be obtained by a study
of the group.
The thousands of documents dealt with under these groups would, if
translated, require a library of volumes. In the case of the contracts the
repetition of scores of examples of the same sort would be wearisome. In
the case of the letters, the translation alone would be almost as obscure
as the original, without copious comment on the relationships, customs,
and events referred to. In both cases it must be noted that many of the
most interesting examples are incomplete and unavailable as specimens. The
object of this work is to show what are the most important laws or legal
documents of each period and to point out the chief subjects of
information to be gained from them. For the letters no such summary of
information can be given, partly because they are so many and varied,
partly because so few are yet available.
(M23) The first epoch is to be considered as one period only because its
contribution to the subject is as yet small and chronologically precedes
the first great group. It ranges from the earliest beginnings of history
to somewhere about B.C. 2300. The dates are largely conjectural, but for
the most part the sequence of the events is known. It is the period
covered by Dr. H. Radau’s _Early Babylonian History_.
Some very ancient documents fall under this period. The early tablets
which show the nearest approach to the original picture-writing(16) are
transfers of property. As a rule, however, such votive inscriptions do not
come under the head of contracts. One of the earliest of our monuments,
the Stele of Manistusu, King of Kish, records the sale of land. Another
very early monument of similar style(17) deals with the sale of plots of
land. Others will be found in the _Mémoires de la Délégation en Perse_.
But by far the greatest number of inscriptions belong to the finds of
Telloh, made by De Sarzec in his explorations for the French Government.
His greatest find, some thirty thousand tablets which were in the archives
there, was dispersed by the Arabs, and has found its way into various
museums. They have been sold in Europe, as coming from different
localities. It is certain that other finds of the same period and same
general character have been made elsewhere, so that it is often difficult
now to determine their place of discovery.
A very large number of these tablets, from the collection of T. Simon, now
in the Berlin museums, were copied and edited by G. Reisner, as
_Tempelurkunden aus Telloh_.(18) The admirable abstracts of the contents
there given(19) will furnish all the information that anyone but a
specialist will need. They consist of lists of all sorts of natural
products, harvests from fields, seed and other expenses allowed for
cultivating fields, lists of the fields with their cultivators, numerous
receipts for loans or grants, accounts of sheep and cattle, stipends or
allowances for certain people; but only one, number 125, is doubtfully
said to concern a sale of some slaves.
Dr. H. Radau, in his _Early Babylonian History_, gives the texts of a
large number of similar tablets.(20) He also classified, transliterated,
and tentatively translated most of them. The kind of information to be
obtained is well brought out in his notes and comments.(21) They contain
receipts, accounts of all sorts, lists of animals, skins, wool, oil, wine,
grain, pitch, and honey; but none relate to the usual subjects treated in
contract-tablets.
M. Thureau-Dangin edited and discussed a number of tablets of the same
character in the _Revue d’Assyriologie_.(22) Especially valuable is his
memoir, _L’accomptabilité agricole en Chaldée_,(23) where many interesting
facts are collected and published.
(M24) A very large number of texts of this period were published by Mr. L.
W. King, in _Cuneiform Texts from Babylonian Tablets, etc., in the British
Museum_.(24) These have been discussed in a few instances by various
writers in scientific journals. In the short descriptions prefixed to
these editions mention is made of “contracts,” but it is difficult to see
to which the term could be properly applied.
A number of extracts from early “contracts” are given by Professor V.
Scheil in the recent files of the _Receuil de Travaux_. According to the
descriptions given, many of them are legal instruments. Besides advances
of grain and receipts for the same,(25) or sales of land,(26) we have a
legal decision concerning a marriage.(27) Of several of these only a few
lines are given and the description of others is misleading. They are
mostly preserved at Constantinople. Some are purely Sumerian, others
Semitic. The same remarks apply to this author’s publications in his _Une
Saison de fouilles à Sippar_. Valuable as are the portions available, they
chiefly make us long for more.
A very large number of tablets belonging to the second period are now in
Europe and America. They seem to have been purchased from dealers, either
in the East or West; and may be presumed to have been discovered by the
natives. No reliable information can therefore be had as to their origin.
Various places are mentioned: Sippara, Abu Habba, Senkereh, Telloh, Warka,
have all been stated to be the place of discovery. There seems no good
reason why tablets of this period should not be found anywhere in
Babylonia. But on examination it is found that collections said to be from
widely different places contain duplicates; while the same collection
contains tablets dated at different cities and with dates a thousand years
apart. It is conceivable that the records of important transactions,
especially the transfers of land, were deposited by order in the archives
at the capital, wherever that was for the time being. We may imagine that
the archives at Sippara or Larsa were afterwards transferred to Babylon,
for safety, or in pursuance of a policy of centralization. Certain it is
that a large number of the texts imply a devotion to Shamash as chief
deity, while others ascribe the pre-eminence to Marduk or Sin. But this
fact is quite consistent with the archives having been discovered in
either Babylon or Sippara.
(M25) On the other hand, it is not unlikely that the apparent
centralization is of purely modern production. The dealers put together
tablets from all sources and ascribe the collection to the place of origin
which best suits their fancy. As a consequence, scarcely any collection
contains a homogeneous series belonging either to one period or source.
This is the more deplorable because so few are competent to date a tablet
by the style of writing upon it, and internal indications are often
lacking.
In the British Museum we have the following collections:
I. A number of “case” tablets brought from Tell Sifr by Loftus in 1850.
Owing to a misleading statement in Layard’s _Nineveh and Babylon_, p. 496,
these have generally been taken to be from Warka, the ancient Erech. But
the account given on pages 270-72 of Loftus, _Travels and Researches __ in
Chaldea and Susiana_, leaves no doubt of the place and date of their
discovery. These are usually denoted by B.
II. A number of tablets now in the Kouyunjik Collections. It is certain
that these do not come from Nineveh, and in the British Museum Catalogue
they are usually ascribed to Warka, but with an implied doubt. One or two
are dated at Erech. The D. T. Collection also contains many tablets, said
to be “not from Kouyunjik.”
III. The collection 81-7-1 contains some forty at least, comprising the
accounts of the temple of Ninib, from the time of Ammiditana and
Ammizaduga.
IV. The collection 82-7-14 also has a few tablets of this period.
V. The collection 82-9-18 has at least one contract.
VI. The collection Bu. 88-5-18, purchased by Dr. E. A. W. Budge in the
East, consists of some seven hundred tablets. They are said to come from
Sippara; and date from _b.c._ 2300 to the time of Darius. These will be
denoted by B1.
VII. The collection Bu. 91-5-9, also purchased by Dr. E. A. W. Budge in
the East, consists of some three thousand tablets. These will be denoted
by B2.
The purchases for the British Museum also include a large number of other
tablets of this period. They are now numbered consecutively, thus Bu.
91-5-9, 606 is known as Brit. Mus. No. 92,679. This renders it difficult
to further particularize the contents of the collections; or to know
whether a given tablet belongs to one of the above collections.
(M26) In the Museum of the Louvre at Paris are a few tablets belonging to
this epoch. Seven of them are published in M. Heuzey’s _Découvertes en
Chaldée_.(28)
(M27) At the Berlin Museum is a collection known by the name of Homsy.
The tablets are marked V. A. Th., but this mark includes other tablets
widely separated in date and found at different sites.
(M28) At the University of Pennsylvania collections known as J. S., Kh.,
and H. contain tablets of this period. Professor E. F. Harper, writing in
_Hebraica_,(29) gives some account of these collections; from which it
appears that the J. S. collection contains tablets of Ḥammurabi,
Samsuiluna, and Ammiditana; while the Kh. collection has tablets of
Ḥammurabi, Samsuiluna, Ammiditana, and Ammizaduga. He announced the
discovery of the name of Abêshu on contemporary documents,(30) belonging
to that reign. The two collections contain over a thousand tablets. The H
collection has six hundred and thirty-two tablets, many of this epoch.
(M29) In the Imperial Ottoman Museum at Constantinople are a large number
of tablets of this period. They are denoted by N, the Nippur collection
found by the American explorers there; S, the Sippar collection from the
explorations conducted by Pater V. Scheil at Abu Habba; the T or Telloh
collection from the explorations of De Sarzec.
A few tablets are owned by Sir Henry Peek, Bart.
A few tablets exist in the Fitzwilliam Museum at Cambridge, the gift of
Mr. Bosanquet.
The Rev. J. G. Ward possesses a tablet, published by Dr. T. G. Pinches in
_P. S. B. A._, XXI., pp. 158-63, of the time of Mana-balte-el, which seems
to be of this period.
A number of other tablets of the period are known to be in different
museums or in the hands of private individuals.
(M30) The historical value of the events used in dating these tablets was
recognized by G. Smith, who published the dates of a number of the Loftus
tablets, in the fourth volume of the _Cuneiform Inscriptions of Western
Asia_, p. 36.
The earliest publication of the texts was by Pater J. N. Strassmaier in
the _Verhandlungen des V Internationalen Orientalistischen Congresses zu
Berlin_, 1881. In the _Beilage_ he gave the lithographed text of one
hundred and nine tablets under the title of _Die altbabylonischen Verträge
aus Warka_. He made many important observations upon their character and
style, and gave a valuable list of words and names. As was to be expected
from a first attempt, both his readings of the texts and his
transcriptions from them leave room for some improvement. He arranged his
texts according to the reigns of the kings mentioned.
This edition formed the subject of M. V. Revillout’s article, _Une Famille
commerçant de Warka_, and of numerous articles by other scholars in the
journals. Dr. B. Meissner seems to have collated a number of these texts
for his _Beiträge zum altbabylonischen Privatrecht_.
In 1888, Dr. T. G. Pinches published _Inscribed Babylonian Tablets in the
possession of Sir Henry Peek, Bart._ It was followed by other parts and by
_Babylonian and Assyrian Cylinder-seals and Signets in the possession of
Sir Henry Peek, Bart._, in 1890. These are most valuable for their full
treatment—photographs of the originals, drawings, and descriptions of the
seals, transliterations, translations, and comments, giving a better idea
of what these documents are like than can be obtained without actually
handling the originals. Dr. Pinches in his introduction assigns their
discovery to the ruins of Sippara. The texts published by him only include
three from our period, Nos. 1, 13, 14; but nowhere will a beginner find
more assistance in his studies of this class of tablet.
In 1893 Dr. B. Meissner published his invaluable _Beiträge __ zum
altbabylonischen Privatrecht_, Vol. XI. of Delitzsch and Haupt’s
_Assyriologische Bibliothek_. This gave a full transliteration and
translation of one hundred and eleven texts published in autography. Full
notes and comments were added giving practically all that could then be
said on the subject. His introduction summarized the information, to be
extracted from his texts, bearing on the social institutions of Babylonia.
By arranging the texts in classes according to their purport and contents
he was able to elucidate each text by comparison with similar documents
and so to gain a very clear idea of the meaning of separate clauses, even
when the exact shade of meaning of individual words remained obscure. Any
advance which the interpretation of these documents may make must be based
on his researches and follow his methods. He gave a useful glossary, but
no list of proper names.
In the fourth volume of Schrader’s _Keilinscriftliche Bibliothek_, 1896,
Dr. F. E. Peiser adopted the plan of arranging the then known
contract-texts in chronological order. He gave, in transliteration and
translation, the texts of thirty-one tablets of this period. Of these many
had been previously published by Strassmaier and Meissner, but Dr.
Peiser’s renderings and short notes are of great value.
In 1896 began the grand series of publications, _Cuneiform Texts from
Babylonian Tablets, etc., in the British Museum, printed by order of the
Trustees_, which has been continued to the present date. Volumes II., IV.,
VI., and VIII. contain copies by Dr. T. G. Pinches of no fewer than three
hundred and ninety-five texts from the B1 and B2 Collections. They also
contain a number of letters and other texts, some of a date as late as
Xerxes, but from the same two collections.
In the _Journal of the Royal Asiatic Society_,1897(31) and 1899,(32) Dr.
T. G. Pinches gives transliterations, translations, and comments upon
fifteen of these texts.
A word of notice must be given to the excellent Guides published by the
trustees of the British Museum. The _Guide to the Kouyunjik Gallery_, with
four autotype plates, 1885, and the _Guide to the Nimroud Central Saloon_
are now superseded by the _Guide to the Babylonian and Assyrian
Antiquities_ with thirty-four plates, photographic reproductions of the
originals, 1900. On pages 104-13 will be found a most useful account of
the class of tablet and short descriptions of ninety-four exhibited case
tablets. Most of these tablets have been published by Strassmaier or in
_Cuneiform Texts_, but are now indicated by their new registration
numbers.
It will be evident from the above remarks that only a small proportion of
the material in our museums has yet been published. It is greatly to be
desired that every existing tablet should be published, as in no other way
can we hope to solve many important problems. Not only the chronology but
much of the actual history can be recovered from these tablets, while the
names of the witnesses and parties to the transactions will settle the
order of the years which are still doubtful. It is from these deeds that
the greater part of this work will be constructed. They form the
groundwork, while later documents fill in details.
(M31) The years were given names. Thus the second year of Ḥammurabi is
called “the year in which Ḥammurabi the king established the heart of the
land in righteousness.” The year often received its name from the capture
of some city. Are we to suppose that these events actually occurred on the
first day of the year? If not, by what name was the year called up to the
occurrence of the event in question? There is evidence that some years
passed by two names, one of which was probably conferred after the year
had begun. An examination of all dated tablets would doubtless result in
fixing the time of the year at which the new year-name came into use. This
can only be achieved by the custodians of our great collections. But,
speaking generally, it seems obvious that names were often given to the
years which attached to them a memory of the previous rather than a record
for the current year. When in after years scribes drew up lists of the
dates of a reign, they may well have made mistakes as to the exact year in
which an event took place and have also credited a king with too long a
reign, by counting as separate years two dates which were really the
alternatives for one and the same year. In this way we may perhaps account
for the discrepancies between the Chronicle and the King Lists.
(M32) The tablets often mention the name of the reigning king as well as
the year-name; thus we read as a date, “the year when Samsuiluna was
king,” followed by “the year in which the canal of Samsuiluna named
Ḥegallu was dug,” which was the year-name of Samsuiluna’s fourth year.
Also the parties often swore an oath to observe their contract by the name
of one or more gods and of the reigning king. Hence, very often, when the
date is not preserved at all, we know what reign was concerned. On the
other hand, in some reigns we have dated tablets from almost every year.
If all the tablets were published, the witnesses and other parties would
enable us to fix the sequence of the years. As these year-names each give
a prominent event for the year we could thus reconstruct a skeleton
history of the reign. Indeed, the present writer had already determined
the order of several years, in more than one reign, from consideration of
the persons named in each. Of course, no assurance could thus be had that
some intermediate years were not omitted in such a scheme, since there is
no certainty that we know the name-dates for each year of a reign. The
order of the kings themselves and the lengths of their reigns were already
known from the King List published by Dr. T. G. Pinches.(33)
(M33) It seemed probable that the scribes of those days would have made
lists of the year-names, in order to know how much time had elapsed since
a given event had occurred. Hence great was the excitement and delight
when in _C. T. VI._ was published a tablet which once contained a list of
year-names from Sumuabu to Ammizaduga. This was followed by the
publication in Mr. L. H. King’s _Letters of Ḥammurabi_ of a duplicate,
which served to restore and complete the list down to the tenth year of
Ammizaduga’s reign. Mr. King further added the year-names actually used on
the dated tablets then published; thus showing how the year-names of the
list were quoted and either abbreviated or expanded. He very appropriately
called this the _Chronicle of the Kings of Babylon_. In the meantime
Professor A. H. Sayce had given a translation of the first published
list.(34) In the fourth volume of the _Beiträge zur semitischen
Sprachwissenschaft_,(35) Dr. E. Lindl has given a full discussion of the
first published list. He further adds a small list of the same character
giving the year-names in order for part of the reigns of Ḥammurabi and
Samsuiluna.(36) Dr. Lindl used the published dates of the contracts to
complete and restore the first list. Thus a great deal of excellent work
has been done on these lists. None of them are complete for the whole
dynasty, nor even for the part which they originally covered, and the
known dated documents do not serve to fully restore them. But so far as
they go, they must take the precedence of the King List, being almost
contemporary documents.
(M34) Besides the kings of the First Dynasty of Babylon the collections
above referred to designate several other persons as kings. Thus the B
collection of the British Museum names Nûr-Adadi, Sin-idinnam, and Rim-Sin
as kings. The texts enable us to fix all these as kings of Larsa. Hence
evidently the Tell Sifr, where these tablets were found, was in the
territory of Larsa. The whole question is well discussed by Dr. Lindl.(37)
The date on the tablet B. 34a refers to the setting-up of a throne for
Shamash by Nûr-Adadi. The date on B. 35 refers to the completion of a
temple in Eridu by Sin-idinnam, King of Larsa. It is scarcely conceivable
that these refer to other than the Nûr-Adadi, who set up the kingdom of
Larsa in the south of Babylonia about the same time as Sumuabi founded the
dynasty of Babylon. Sin-idinnam, his son, succeeded him as King of Larsa
and claimed to be King of Shumer and Akkad. Elam, however, under
Kudurnanhundi I., invaded the south, defeated Sin-idinnam and set up
Rim-Sin as King of Larsa. It seems that Rim-Sin reigned thirty-seven
years, partly as vassal of Ḥammurabi, from the seventeenth year of
Sin-mubalit until the thirty-first of Ḥammurabi. Whether Sin-idinnam was
then restored to his throne as vassal of Ḥammurabi, or whether Rim-Sin was
succeeded by a second Sin-idinnam, or whether the restoration of
Sin-idinnam, after a temporary expulsion of Rim-Sin, took place within the
thirty-seven years of the latter’s reign, is not yet clear.
(M35) Of great interest is the fact of the use of an era in the south of
Babylonia. A large number of tablets are dated by the years after the
capture of Isin. Thus tablets are dated in the 1st, 2nd, 3rd, 4th, 5th,
6th, 7th, 8th, 13th, 18th, 22nd, 23rd, 26th, 27th, 28th, and 30th years
after the capture of Isin. Most of them are related to the kingdom ruled
by Rim-Sin, which clearly included Tell Sifr, Nippur, Eridu, as well as
Larsa.(38) The first year of this era was probably the seventeenth year of
Sin-mubalit.
(M36) A king Immeru is mentioned,(39) usually alone, but once with
Sumu-lâ-ilu;(40) where the form of the oath, “by Shamash and Immerum, by
Marduk and Sumu-lâ-ilu,” suggests that while Sumu-lâ-ilu was king of
Babylon, the Marduk city, Immeru was king of a Shamash city. As he comes
first, he was probably king of Sippara, where Shamash was the city god,
and whence the collections, B1, B2, and V. A. Th., seem, on other grounds,
to have come. That it was needful to name Sumu-lâ-ilu also points to that
king being overlord of Sippara at the time.
The king Ilu-ma-ilu, named(41) in the oaths, associated with Shamash, may
well be a vassal king of Sippara, though Professor Delitzsch(42) suggests
that he may be the first king of the second dynasty of Babylon, whose name
appears in the King list B as Ilu-ma(ilu).
The king Mana-balte-el, on the Rev. J. G. Ward’s tablet, seems to belong
to the First, or Second, Dynasty, perhaps as a vassal king, but may have
preceded them by some short period.
The king Bungunu-ilu, mentioned by King,(43) was associated with
Sumu-lâ-ilu. Probably he was vassal king of Sippara before Immeru.
(M37) A number of extracts from the legal documents of the third period
have been given by Father V. Scheil in the _Receuil __ de Travaux_.(44)
The full text is rarely given and there is consequently nothing for use
here. They come from Nippur and are at Constantinople. The Semitic
language is used largely, but a few Sumerian phrases remain. All the names
of persons except those of the kings are pure Babylonian. The
determinative of personality before proper names is common, but not before
a king’s name. The tablets are dated by regnal years, no longer by
year-names. The kings have a determinative of divinity before their names.
The money in use is either gold or bronze, silver is hardly named, while
in other epochs it is almost always used. Gold was now legal tender, as
silver was afterwards.
The many extremely fine charters of this period are of great value for the
questions concerning land tenure. Descriptions and figures of some of them
will be found in the Guide.(45) The text of several was published by Dr.
C. W. Belser,(46) under the title _Babylonische Kudurru-inschriften_. Some
of these are transliterated and translated in Schrader’s _Keilschriftliche
Bibliothek_,(47) where references to the literature will be found. In many
cases these charters or boundary-stones are the only monumental evidence
for their period. They therefore figure largely in the histories.
Some of the best examples are found in the second volume of the _Mémoires
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.
(M63) § 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.
(M64) § 4. If he has borne false witness in a civil law case, he shall pay
the damages in that suit.
(M65) § 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.
(M66) § 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.
(M67) § 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.
(M68) § 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 plebeian,
he shall return tenfold. If the thief cannot pay, he shall be put to
death.
(M69) § 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.
(M70) § 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.
(M71) § 14. If a man has stolen a child, he shall be put to death.
(M72) § 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.
(M73) § 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.
(M74) § 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.
(M75) § 21. If a man has broken into a house he shall be killed before the
breach and buried there.
(M76) § 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.
(M77) § 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.
(M78) § 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.
(M79) § 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.
(M80) § 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.
(M81) § 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.
(M82) § 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.
(M83) § 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.
(M84) § 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.
(M85) § 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.
(M86) § 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.
(M87) § 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.
(M88) § 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.
(M89) § 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.
(M90) § 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.
(M91) § 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.
(M92) § 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.
(M93) § 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 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.
(M94) §§ 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. [54]. 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.
(M95) § 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.
(M96) § 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.
(M97) § 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.
(M98) §§ 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. [61]. 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_.
(M99) § 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:
(M100) § 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.
(M101) § 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 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.
(M102) § 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:
(M103) § 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.
(M104) §§ 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. [103]. 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.
(M105) § 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.
(M106) § 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.
(M107) § 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.
(M108) § 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.
(M109) § 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.
(M110) § 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.
(M111) § 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.
(M112) § 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.
(M113) § 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.
(M114) § 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.
(M115) § 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.
(M116) § 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.
§ 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.
(M117) § 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.
(M118) § 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.
(M119) § 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.
(M120) § 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.
(M121) § 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.
(M122) § 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.
(M123) § 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.
(M124) § 128. If a man has taken a wife and has not executed a
marriage-contract, that woman is not a wife.
(M125) § 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.
(M126) § 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.
(M127) § 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.
(M128) § 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.
(M129) § 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.
(M130) § 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.
(M131) § 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.
(M132) § 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.
(M133) § 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.
(M134) § 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.
(M135) § 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.
(M136) § 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.
(M137) § 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.
(M138) § 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.
(M139) § 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.
(M140) § 153. If a man’s wife, for the sake of another, has caused her
husband to be killed, that woman shall be impaled.
(M141) § 154. If a man has committed incest with his daughter, that man
shall be banished from the city.
(M142) § 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.
(M143) § 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.
(M144) § 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.
(M145) § 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.
(M146) § 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.
(M147) § 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.
(M148) § 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.
(M149) § 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.
(M150) § 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.
(M151) § 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.
(M152) § 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.
(M153) § 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.
(M154) 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.
(M155) 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 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.
(M156) § 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.
(M157) § 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.
(M158) § 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.
(M159) § 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 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.
(M160) § 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.
(M161) § 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.
(M162) § 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.
(M163) § 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.
(M164) § 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.
(M165) § 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
marriage-portion, according to the wealth of her father’s estate, and
shall give her to a husband.
(M166) § 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.
(M167) § 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.
(M168) §§ 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.
(M169) § 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.
(M170) § 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.
(M171) § 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.
(M172) § 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.
(M173) § 195. If a son has struck his father, his hands shall be cut off.
(M174) § 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.
(M175) § 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.
(M176) § 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.
(M177) § 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.
(M178) § 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.
(M179) § 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.
(M180) § 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.
(M181) § 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.
(M182) § 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.
(M183) § 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.
§ 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.
(M184) § 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.
(M185) § 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.
(M186) § 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.
(M187) § 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.
(M188) § 241. If a man has levied a distraint on a working ox, he shall
pay one-third of a mina of silver.
(M189) § 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.
(M190) § 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.
(M191) § 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.
(M192) § 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.
(M193) § 250. If a bull has gone wild and gored a man, and caused his
death, there can be no suit against the owner.
(M194) § 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.
(M195) § 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.
(M196) § 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.
(M197) § 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.
(M198) § 261. If a man has hired a herdsman, to pasture oxen, or sheep, he
shall pay him _eight GUR_ of corn yearly.
(M199) § 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.
(M200) § 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.
(M201) § 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.
(M202) § 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.
(M203) § 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.
(M204) § 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.
(M205) § 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.
(M206) § 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.
(M207) § 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.
(M208) § 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.
(M209) 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 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.
III. Later Babylonian Law
(M210) 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:
(M211)
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.
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.
(M212)
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.
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.
(M213)
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.
(M214)
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 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.
(M215)
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.
(M216)
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.
(M217)
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.
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.
(M218)
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.
(M219)
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.
IV. The Social Organization Of The Ancient Babylonian State
(M220) 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,(62) 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,(63) and
could assault another poor man more cheaply than could an _amêlu_. There
can be no doubt that the _amêlu_ was the “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,(64) 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,(65) 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.(66) Any injury done to him was
paid for, and his master received the damages.(67) 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.(68) But his master had to pay for his cure, if
sick.(69) He was not free to contract, except by deed and bond.(70) Yet he
and his free wife could acquire property, half of which would fall to his
wife and children on his death.
(M221) 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.
(M222) 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
personal service. They were to go “on the king’s errand” when ordered. It
was a penal offence to send a substitute.(71) 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.(72) This implies that there was a local duty besides the personal
service. Further, this needed a grown man to discharge it.(73) The _locum
tenens_ enjoyed the benefice,(74) 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.(75) 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.(76)
(M223) The service on which the official might be engaged was evidently
military and had risks. It is not certain whether the _dannatu_(77) 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.
(M224) In some cases the tributary there is associated with these 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.
(M225) 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.(78) The merchant, who
represents another class, appears very often to have been a foreigner,
only temporarily resident in the country.
(M226) 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 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.(79)
(M227) 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.
V. Judges, Law-Courts, And Legal Processes
(M228) 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.
(M229) 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 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.
(M230) 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.
(M231) Some sections deal explicitly with the duties of a judge. Thus,(80)
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 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.”(81)
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.(82) In later times we have many examples
of such a stay of process that evidence might be produced.(83)
(M232) 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.(84) A slanderer was summoned before
the judge,(85) a son could not be cut off without referring the case to a
judge,(86) the children who wished to turn their widowed mother out of her
house had to appear before a judge.(87)
(M233) 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. 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.
(M234) 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.(88)
(M235) 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.(89)
(M236) 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
recorded, for he often omits his title. Generally he is the last of the
witnesses, but not always so.
(M237) 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.
(M238) 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.(90) 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.
(M239) 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.
(M240) The scribe was not a priest. There is no evidence whatever that
either priests were all scribes, or could all write, 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.
(M241) 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.
(M242) First we have the elders, the _šîbu_, of a city.(91) 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,(92) from which a
prevaricating judge was expelled.(93) 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_.(94) The recurrence of the
same names, at the same dates, indicates that a body of official witnesses
were held in readiness to act on such occasions. Many of them were temple
officials, or members of the guild of Shamash votaries.
(M243) Sometimes they are associated with the judges in such a way as to
show that they were assessors.(95) 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.(96) In the time of
Nûr-Adadi they sent a case before the king.(97) They actually gave
judgment.(98) 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.
(M244) 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.(99)
(M245) 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 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.
(M246) 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,(100) 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.
(M247) 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 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.
(M248) 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.”
(M249) 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;(101) but there is no
evidence of unwillingness to submit. So too, when the parties are said to
“receive a judge,” they evidently both sought him.
(M250) Sometimes affairs did not go so smoothly. One party had to act and
bring the other before the judges(102) 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.(103)
(M251) 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.(104)
(M252) 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.(105) There, as we know, Ḥammurabi set up one of the
copies of the Code. The case was heard sometimes at the “old gate.”(106)
At Babylon, the parties were taken to the temple of Merodach,
Esagila.(107) At Larsa, the “gate” of _NIN-MAR-KI_, or the temple of Sin,
might be chosen.(108) The temple of Ishhara is also named.(109)
(M253) 5. *Procedure.*—We have only scattered hints regarding legal
procedure. The Code says that the judges “saw the pleas.”(110) The scribe
uses the same expression.(111) As a rule, he records the plaintiff’s
statement of claim first. Then he records a counter-statement. There is a
strong suggestion that he quotes from written documents. The judges read
these, or heard the verbal statements.
(M254) 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.(112) 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,(113) the judgment of the house of Shamash.”(114)
So the defendant was said “to make his account before Shamash.”(115) In
bringing a suit the parties “sought the altar of Shamash.”(116) In case of
loss or damage, the claimant recounted it “before god.”
(M255) 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,(117) or to know that a
transaction had taken place.(118)
(M256) Tampering with witnesses, or with a jury, was penalized by the
Code.(119) The judges might refuse to accept the witness,(120) and then
might decide the case on the sworn deposition of the plaintiff.
(M257) 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.(121) Or they might determine that it was a case for the
accused to purge himself, which he did by oath.(122)
(M258) 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.”(123) The sentence is
sometimes stated in the words of the judges themselves, introduced by
_ikbu_, “they said.”(124) Thus we read “the tablet which A granted to B is
good, they said.”(125)
(M259) If one party was in the wrong, the judges “laid the wrong on
him,”(126) or “put him in the wrong.”(127) 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.(128) This was damages, not a fine.
(M260) 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.(129) 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.(130)
For later times we have little evidence. What there is was collected by
Kohler-Peiser,(131) and agrees in general with the above.
(M261) 6. *The decision.*—In these ways the judges “quieted the strife,”
“composed the complaint.”(132) 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.(133) 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 usually is “they swore,” without mention of the
persons who did so.
(M262) 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.(134) These
irrevocable tablets, practically imperishable also, have now come after
thousands of years, to tell their tale.
(M263) 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,(135) as evidence of loss, deposit,
injury;(136) and the reception of a sworn deposition is recorded.(137)
References to oaths continually occur in the contracts.
(M264) The judges “gave them to the oath before Shamash and Adad,”(138)
or, more briefly, “gave him to the oath of god.”(139) 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.”(140) 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 edition of the Chronicle,(141) and Dr.
Lindl,(142) have made skilful use of these oaths in determining
chronology.
(M265) The administration of the oath took place before the censer of
Shamash(143) or at the shrine, _Šašaru_, of Shamash,(144) in Sippara; or
before the emblematic dragon sculptured on the doors of the Marduk temple
at Babylon.(145) Other places are named which we are not yet able to
identify. A kind of magical conjuration appears sometimes to have been
employed,(146) which is not yet understood.
(M266) 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.
(M267) 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.(147) 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.
(M268) But the oath lingered on into very late Babylonian times, when we
have some very full forms. If anyone shall change or alter the agreement,
“may Marduk and Zarpanit decree his destruction.”(148) 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.”(149) 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.(150)
(M269) 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.(151) But even if the case was less serious, it was slander to have
brought a false accusation, and the penalty for slander was branding.(152)
This penalty was inflicted on an unsuccessful suitor for possession of a
house sold by his father.(153) Another form of penalty for unsuccessful
litigation was that the suitor should not only lose his case but actually
be condemned to pay the penalty which he, if successful, would have
brought on the other party.(154) That this is what was really intended by
the clauses is shown by the case of Belilitum, who as late as B.C.
555,(155)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 sh
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