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(M236) 2. *Scribes.*—The scribe exercised his craft as a profession. One often meets with a scribe, tupsarru, 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 tupsarru 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 amelu RID, whose title can be read sangu, 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 sibu, 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 sibu, 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 puhru, 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 sibe sarri. They were not exclusively men, for we have sibe u sibatu.(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 nagiru of Babylon, a judge, and other high officials.(96) In the time of Nur-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 sibi mudi, "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 sibu 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 la ragami. 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 ragamu, gives rise to targumanu, 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, pakaru, gave rise to pakiranu, 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, Hammurabi 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, din Isarlim, "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, Sasaru, 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, Bel, and Nabu, 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, Bel, and Ea curse him with a bitter curse, may Nabu, 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 she sought to obtain it. This was of course a form of retaliation.
(M270) In Assyrian times the parties usually bound themselves not to litigate, nor attempt to disturb the settlement made between them, under heavy forfeits to the treasury of a god, often tenfold the value of the object in dispute, and sometimes prohibitive in amount. Such sums as two talents of silver, or two talents of gold, controvert the idea that these forfeits were looked upon as possible deposits by a claimant desiring to reopen the case. They were terrific penalties intended to deter any attempt at litigation.
(M271) The forfeit sometimes took the form of white horses, or foals (?), which were dedicated to a divinity. Very interesting is the mention of the dedication of the eldest child to a god, or goddess. This is worded as if the dedication was to be by fire. The additional mention of incense or cedarwood, as accompanying the offering, renders it probable that it was really meant that the litigant should be punished by the sacrifice of his child as a "burnt offering" to the god. But this only makes it clearer that such penalties were simply meant to be deterrent. We have no proof that such an offering ever took place. It was a memory of bygone horrors, but not less interesting as showing what had once been possible. A more natural and extremely common penalty was the payment of a tenfold value to the disturbed owner. In later times this was twelvefold. This was an example of the multiple restitution so common in the Code.
(M272) Something very like an ordeal was occasionally imposed. The very fragmentary condition of the texts which give it adds to its obscurity. But it appears to have consisted in the litigant being compelled to eat a mina weight of some magically concocted food and to drink the contents of an inscribed bowl. What the result was expected to be is not stated. One fragmentary text appears to name the ingredients of the magic potion. All that can be made out points to an ordeal, somewhat similar to that inflicted upon a suspected wife in Numbers v. 12-31.
9. *Penalties for wrong-doing.*—We are chiefly indebted to the Code for our knowledge of the penalties which the judge and his assessors might inflict.
(M273) Foremost we may place the death-penalty. This was inflicted by the Code for witchcraft, for theft, for corruption of justice, for rape, for causing death by assault, for neglect of duties by certain officials, for allowing a seditious assembly, for causing death by bad building, and for varieties of these crimes. It is curious that no mention is made of murder pure and simple. But this is only accidental. It is evidently assumed. For the Code brings several cases of murder under this penalty. Procuring the death of a husband is punished by it; even a fatal assault, as that on a pregnant woman who dies of miscarriage as the result. The need of an oath to establish lack of malice in giving a blow in a quarrel which led to death tends to show that murder was punished by death, and that it was regarded as death intentionally caused. An explicit statement was clearly not needed. We do not yet know how this sentence was carried out. Usually the Code only says "he shall be killed"; by whom, or how, is not stated. For special cases the manner is described.
(M274) Death by drowning was inflicted on a beer-seller for selling beer too cheaply; on a woman for adultery, for being a bad wife, for incest, or for desertion of her husband's house. In every case the victim was a woman. When men were drowned they shared a woman's fate. In two cases, adultery and incest, we read of the criminals being bound. In the latter, 155, it seems that the man was "bound" and the woman drowned. In the former, 129, both were "bound" and both drowned. It is hardly likely that "bound" can mean merely tied up, or imprisoned, in the case of the man who committed incest. I would suggest that in both cases it means "strangled." The alternative would be that the confusion in 155 is due to the scribe.
(M275) Death by fire is directly ordered for a votary who opens or enters a beer-shop, for a man and his mother in incest, and indirectly for a thief at a fire.
(M276) Impalement on a stake is ordered for a wife procuring her husband's death.
(M277) Indirectly the death-penalty would often be the consequence of an appeal to the ordeal by water, in 2, 132.
(M278) The various sorts of mutilation named are of two types: (1) retaliation for bodily disfigurement, (2) symbolical of the offence itself. Thus eye for eye, tooth for tooth, limb for limb, are pure retaliations. But the hands cut off mark the sin of the hands in striking a father, in unlawful surgery, or in branding. The eye torn out was the punishing of unlawful curiosity. The ear cut off marked the sin of the organ of hearing and obedience. The tongue was cut out for the ingratitude evidenced in speech.
(M279) Scourging is the only other form of corporal punishment. It was done with an ox-hide scourge, or thong, and sixty strokes were ordered to be publicly inflicted for a gross assault on a superior.
(M280) Banishment from the city was the penalty for incest.(156)
(M281) Restitution may, perhaps, hardly be regarded as a penalty. Thus a man who was found in possession of lost property had to restore it. In case of loss caused by neglect or ill-treatment of hired property, or of goods deposited or intrusted, or by want of care in treating diseased limbs, restitution, goods for goods, ox for ox, ass for ass, et cetera, was ordered.(157)
(M282) But restitution of many times the damage inflicted is a distinct penalty. The Code orders threefold for cheating a principal,(158) fivefold for loss or theft of goods by carrier,(159) sixfold for defrauding an agent,(160) tenfold for theft by a poor man, or for careless loss by shepherd or herdsman,(161) twelvefold for a false sentence by a judge,(162) thirtyfold for theft on the part of a gentleman.
(M283) The infliction of the same loss on a criminal that he caused another is seen in the cases of mutilation, eye for eye, limb for limb, tooth for tooth,(163) but also in the penalty of son for son, daughter for daughter, slave for slave;(164) and in the rule that a vexatious suitor shall pay the penalty which his suit was calculated to bring on the defendant.
(M284) This retaliation is the explanation of what seems to be vicarious punishment, where a man suffers in the person of his son, or daughter, for the loss he has caused to the son or daughter of another.(165)
(M285) Another penalty was the voidance of a claim. If a man took the law into his own hands to repay his debt, he lost all claim to recover it through the courts. When the purchase was illegal and void, as that of an officer's benefice or of a ward's property, the purchaser had to return his purchase and lose what he had paid for it.
(M286) In certain cases no suit was allowed to gain standing. Contributory negligence,(166) the natural death of hostage for debt,(167) the accidental goring of a man by a wild bull,(168) are excluded from litigation. Such events cancel all further claim or are expressly said to have no remedy. There is no case for prosecution.
(M287) Compensation for loss caused by crime, or neglect, is ordered on a scale fixed by the Code. Where a tenant takes a field on produce-rent his neglect to cultivate caused a loss to the landlord. He was thus bound to pay an average yield, or a crop like his neighbor's, or that of the next field.(169) In later times, the vagueness of this rule, which might give rise to dispute, was avoided by stating in the lease the average rent to be expected. For certain classes of land, where no comparison with the next field could be instituted, a fixed rate was set down.(170) Compensation for premature ejectment was ordered.(171)
VI. Legal Decisions
(M288) By a legal decision we understand a "judgment" pronounced by some judicial authority upon a case submitted. It is not easy to say whether the Babylonians had a separate name for this sort of transaction; but it had some peculiarities by which it can be easily recognized. It usually opens with the words, duppu ana, "tablet on," followed by the statement of the object in dispute. This is very often abbreviated to a simple ana, "on," or assum = ana sum, "concerning," or eli with the same sense.
These usages explain the curious tablet(172) where we have a long series of sections each containing names associated with other names by the word assum. Thus we read:(173)
"Nishinishu, daughter of Rish-Sin, assum Shamash-ellatsu, son of Itti-Sin-dinim."
(M289) It is not clear whether Shamash-ellatsu was the adversary of Nishinishu, or the subject of her suit. But we clearly have here a "trial list" of seventeen cases. Whether they were all decided in one day, month, or year, or whether they were reserved for the royal audience, we have no means of telling. It is merely a list. The object in dispute, "two SAR of land," is occasionally given; or the court is named "the temple of Shamash," or "at the gate of Shamash." The whole text is too fragmentary to be translated, but we may note that some lady or other is always a party to the suit. If we could find the tablets referring to the decisions intended and they should turn out to be of different years, this list might prove of value for chronology.
(M290) Legal decisions relate to all manner of subjects and consequently are difficult to arrange. Dr. Meissner adopted the excellent plan of appending them to the groups concerned with the class of property dealt with under them. Thus a legal decision concerned with the sale of a house would be grouped with the house sales. But this does not suit all cases, and both in formula and subject the legal decisions are really distinct. Most legal decisions add nothing to our knowledge of the law, merely recording that "A sued B and lost the day and is now bound over not to renew the litigation." A large number go only a little further, thus:(174)
(M291)
Ribatum, daughter of Sala, was sued by the sons of Erib-Sin, Shumma-ilu and Mar-ersitim, concerning what Sala, her father, and Mullubtim, her mother, had left her. They took judges who restored to her one-half GAN of land, her property. Shumma-ilu and Mar-ersitim, sons of Erib-Sin, shall not renounce this agreement nor dispute it. They swore by Shamash, Malkat, Marduk, and Samsu-iluna the king. Four judges appear as witnesses. Dated the 10th of Elul, in the second year of Samsu-iluna.
Here it is not stated what was the ground on which the parties disagreed, nor that they laid claim to more than one-half GAN of land. They lost the case. That is all we know in many other cases. Often we do not know the object in dispute. Other cases are quite full and often very instructive. Thus:(175)
(M292)
About the maid Adkallim, whom Aiatia had left to her daughter Hulaltum. Hulaltum had taken care of her mother Aiatia; while Sin-nasir, the husband of Aiatia, who was in Buzu for twenty years, had left Aiatia to her fate, loved her not. Now after Aiatia was dead, Sin-nasir laid claim on whatever Aiatia had, and on Hulaltum for the maid Adkallim. Isharlim, the rabianu of Sippar, with the Kar-Sippar, assigned sentence; they laid the blame on him. He shall not renounce the agreement, nor dispute it. They swore by Shamash, Marduk, and Hammurabi the king. The judgment of Isharlim. Four witnesses. Dated in Elul, the 9th year of Hammurabi.
This was a bad case of desertion. The husband, Sin-nasir, deserted his wife for twenty years, but on her death came back and claimed her property. This he was not allowed to do, by the Code.(176) In his absence, Hulaltum had cared for Aiatia, either as his real, or only adopted, daughter. In either case, Aiatia had left Hulaltum a slave-girl, Adkallim, whom Sin-nasir now claimed. His claim was disallowed.
The decisions which we now possess give little further information as to the legal procedure, but a series of abstracts will illustrate the legal points which they raise.
Silli-Ishtar and Amel-ili, sons of Ilu-eriba, were sued by Eribam-Sin, son of Ubar-Sin, concerning a house, etc., which they bought of Sin-mubalit and his brothers. They say that they bought with money which Silli-Ishtar received from his mother and which formed no part of that which they had in common with plaintiff as partners. Deposition accepted. Hammurabi 34.(177)
The sons of Zazia sue Sin-imgurani and Sin-uzilli for rights in a house next the temple of Ningirsu, five days' income in the temple of Sin, sixteen days' income in the shrine of Belit, and eight days' income in the shrine of Gula. Claim not made out. Era of Isin 6.(178)
Idin-Adadi and Mattatum have no claim on property which Hishatum has or shall inherit. Rim-Sin (?).(179)
Adadi-idinnam and Ardi-Martu agree on dissolution of partnership. Zabum 1.(180)
Brothers of Ur-ilishu agree not to proceed against Sala-ilu and Ur-ilishu concerning property left by latter. Apil-Sin (?).(181)
Family of Urra-gamil sue Erib-Sin for account of his partnership with and his indebtedness to Urra-gamil deceased. Erib-Sin settles. N. D.(182)
Sin-ellatsu gave a ring to Rame-Ishhara. The children of Sin-ellatsu agree not to sue her for it. Hammurabi (?).(183)
Private settlement of claims to property. N. D.(184)
In the above cases there is no explicit mention of judges. The next group are cases before judges where fact of suit, subject and result are given, but not the pleas presented.
Imgur-Sin and Ilu-eriba sue Iatratum concerning a house which she bought of their father. Nonsuited. Before judges of Babylon and Sippara.(185)
Silli-Ishtar and Eribam-Sin entered into partnership. On dissolution of their partnership they chose judges, paid in their common stock and shared equally. The shares are scheduled in the deed of settlement. Hammurabi 34.(186)
Pala-Shamash and Apil-itishu dispute concerning a division of property. They obtain judges and city witnesses. The whole house and income is shared equally and each agrees to waive further claim. Hammurabi (?).(187)
The two sons of Ku-Ishtar disagreed as to their shares. Nidnat-Sin, the rab Martu, makes equitable division. Hammurabi 33.(188)
Apil-ilishu and Pala-Shamash dispute the latter's right to a house, ship, servants, money, and property in his possession. The city elders from Huda and Shibabi gave judgment and confirmed the title of Pala-Shamash.(189)
The sons of Nur-Shamash sue Belitum for the property left her. Before judges. Nonsuited. Sumu-la-ilu.(190)
Shunu-ma-ili and Mar-ersitim sue Ribatum concerning her right to the legacy of Sala and Mullubtim. The judges assign her an income, hibiltu. Samsu-iluna 2.(191)
Marduk-mubalit and Sin-idinnam sue Shad-Malkat concerning her house in Bit Gagim. Judges confirm her title. Apil-Sin.(192)
Huzalum and Pi-Malkat, children of Nabi-Shamash implead Shidi-lamazatanhu of Gagim concerning various rights to incomes and rations in the temple of Shamash. The judges assign shares to each. Samsu-iluna (?).(193)
Aliku and Sumu-rame sue Shakumatim about a house they sold him. Nonsuited. N. D.(194)
Shamash-bel-ili repudiates a sale of land to the Lady Mannashi. He is nonsuited. Hammurabi 15.(195)
Family of Ardi-rabish against Erib-Sin on account of property left them by Ardi-rabish. Nonsuited. Sin-mubalit 20.(196)
Hamaziru sues Manutum for house and property but is nonsuited. Sumu-la-ilu.(197)
Kasha-Upi bought a house of Itti-itishu and his sons, Belshunu and Ilushu-bani. Amel-Ninshuna, son of Belshunu, brought a suit about the house. Judges condemn him to be branded on the forehead and confirm Kasha-Upi's title. Sin-mubalit.(198)
Nishinishu sues Ana-erishti-Malkat for three SAR of land before the king's judges. Nonsuited. Samsu-iluna 2.(199)
Malkat-kuzub-matim sues Ani-talime for restitution of a field, before the judges of Babylon and Sippara. The witnesses sustain her claim, which is granted. Samsu-iluna 3.(200)
The family of Izidaria sue the family of Azalia about the property of Izidaria deceased. Their title is confirmed. Zabum 12.(201)
Shamash-bel-ili sues Nidnusha concerning a house bought by him of her. The judges grant him two shekels of silver. Hammurabi 1.(202)
Shi-lamazi sues her brothers for a field and wins her case.(203)
Before Lushtamar, nagiru of Babylon, Adadi-idinnam and Ibku-Ishtar, judges, Zariku was put to the oath and replied to Erib-Sin. He was told that as his domicile was at Sippara, he must not make his appeal to the judges of Babylon. So his case was dismissed. Hammurabi 28.(204) The record is defective.
Cases before judges where the plea and its result can be made out with some certainty are as follows:
Ardi-Sin, son of Etiru, sued the sons of Shamash-nasir who had sold a plot of land, two and a half GAN in area, to Ibni-Adadi the merchant. He claimed the land as ancestral domain, bit abisu, and denied that he had ever alienated it. The sons of Ibni-Adadi, now in possession, produced the deed of sale, duppu simati, which Etiru and Sin-nadin-shumi, his brother, had executed to Shamash-nasir and his son. The judges assigned a small portion of the land, about a sixth, to Ardi-Sin, but make up the rest, apparently, from another quarter. Ammizaduga (?).(205)
Mar-Martu bought the garden of Sin-magir. Ilubani disputed the legality, simdattu, of the sale. Before the judges at the gate of Nin-marki he deposed that he was the adopted son of Sin-magir, which adoption had never been revoked. In the time of Rim-Sin the house and garden had been awarded to Ilubani and then Sin-mubalit had brought a suit against Ilubani, which was regularly heard before judges and witnesses from Nin-marki. They had awarded the house and garden to Ilubani. Sin-mubalit was now bound over to dispute the title no more. Hammurabi.(206)
Here it seems that on the deposition of Rim-Sin by Hammurabi, Sin-mubalit, excluded by his bond from disputing Ilubani's title, sold his claim to Mar-Martu, who attempted to enter into possession. Possibly it was thought that the new rulers would reverse the old decision.
(M293)
The sons of Namiatum sue their mother, Iashuhatum, about her share of their father's property. She appears before the judges of Babylon and puts in an inventory to show that she has taken nothing from the family possessions. Then the sons of Namiatum renounce further claim on the ground of family possession to the property of Idin-Adadi, Iashuhatum and their descendants. Samsu-iluna 2.(207)
It seems that, after the death of Namiatum, Iashuhatum married again. The children of the first marriage bring an action to secure judgment that she shall not take with her any property of their father's. She had, as we know, a right to take with her her marriage-portion, but not her husband's gifts to her.
Amel-Ninsah sues Garudu for the rent of a field. The debtor not paying was ejected. Apil-Sin.(208)
Shumi-ersitim sues for right to a sheep and some corn, the naptanu of a god. Judges grant him half share. Hammurabi 9.(209)
Judges summon Ibik-iltum before Elali-bani to account for corn. He purges himself on oath. N. D.(210)
Amat-Shamash claims to be the adopted daughter of Shamash-gamil and his wife Ummi-Arahtum. Her witnesses proving unsatisfactory, her claim was disallowed on the oath of Ummi-Arahtum that they had never adopted her. Hammurabi (?).(211)
Ilushu-abushu hired a pack-ass, imer bilti, of Ardi-Sin and Silli-Ishtar and lost it. The judges awarded them sixteen shekels of silver as compensation. Apil-Sin 5.(212)
Babilitum sued Erish-Saggil, Ubar-Nabium, and Marduk-nasir for a share of her family possessions, bit abisa. The judges assigned her a share. Samsu-iluna 5.(213)
Nidnusha and Shamash-abilu sue the daughter of Sin-eribam about property which she claimed to have inherited. They charge her with having forged the will of Amti-Shamash in her favor. The judges went to Gagim, where the property was, and examined witnesses who proved that Amti-Shamash had left the property to the daughter of Sin-eribam. The judges therefore confirmed her title. N. D.(214)
Mar-ersitim left a female slave Damiktum to Erib-Sin. His wife Mazabatum and his brother Ibni-Shamash dispute this legacy. The judges inspect a document by which Erib-Sin, on the suit of Mar-ersitim, had granted Damiktum to Mazabatum and Ibni-Shamash. The judges return Damiktum to Mazabatum. Hammurabi (?).(215)
(M294) In Assyrian times we have comparatively few legal decisions. The judges who appear are the sartenu, or chief-justice; the hazanu, the chief civil magistrate of a city, the parallel of the ancient rabianu; the sukallu, or chamberlain; and one or two others, besides the simple daianu, or judge. Some of these are not judicial officers, but act in that capacity.
Usually the judge is said to lay the blame on the guilty party, arnam eli A emedu; or to lay the penalty upon one, sartu eli A emedu. The sentence itself was a dienu, or "judgment." As in former times, the legal decisions refer to all manner of cases, and here more than anywhere else a mere translation does not convey much meaning to the reader.
Thus:(216) a scribe A prosecuted a farmer B for the theft of a bull. They came before Nabu-zer-kenish-lishir, the deputy hazanu of Nineveh. Restitution, bull for bull, was imposed on the defendant, who meantime was held for the fine. "On the day that he shall have made good the value of the bull he shall go free." Dated the 12th of Elul. Eponymy of Mushallim-Ashur. Twelve witnesses.
Again:(217) A stole four slaves of B, who summoned him before the sukallu. The judge laid on him a fine of two hundred and ten minas of copper. B then deposited a pledge with A, either himself, or a slave, to perform work equivalent to the amount of the debt. If B, or any representative of his, pays the money, the pledge is void. "Whoever shall withdraw from this agreement, Ashur and Shamash shall be his judges, he shall pay ten minas of silver and ten minas of gold, he shall pay it in the treasury of Belit." Dated the 10th of Adar, B.C. 678. Eleven witnesses.
Here is another case, relating to a breach of trust:(218)
(M295)
The decision of the chief-justice, which he laid on Hani. Three hundred sheep, with their belongings, property of the king's son were lost, or killed by the shepherds. Each shepherd was condemned to pay two talents of bronze as his fine. Hani, and his people, and his fields, were taken as security for the payment for the three hundred sheep, and the fines due from the shepherds. "Whoever shall demand him, his saknu, his rab kisir, or any representative of his, shall pay for three hundred sheep and the fines for the shepherds and then Hani shall be released." Dated 27th of Sebat, B.C. 679. Four witnesses.
The defendant had been intrusted with three hundred sheep, which he had to return in full, with a proper increase of lambs. But, evidently in the disorders which arose on the death of Sennacherib, Hani had lost or made away with them. If he had intrusted them to shepherds, either the shepherds had killed them, or, as some take it, Hani had killed the shepherds. In the former case he owed two talents of bronze as fine from each shepherd, in the latter he had to pay the same amount for each. Either way, he was held responsible for the value of three hundred sheep and two talents of bronze for each shepherd. He and all he had were seized for the liability. It is interesting to note that his district governor, or the colonel of the regiment to which he belonged, was thought likely to liberate him; but some other representative might do so. The lost property belonged to the king's son. This may have been Esarhaddon, or one of Sennacherib's other sons. But, at any rate, it is clear that Esarhaddon was putting his household in order.
(M296) The other examples known to us do not add to our legal knowledge. The subjects are chiefly misappropriations of property and there is little variety.
(M297) The later Babylonian tablets throw some light upon legal procedure in Babylon. The greater detail exhibited by them is due largely to the fact that for this period we have so many private documents. The greater portion of the material for this part of the subject has been worked over by Professor J. Kohler and Dr. F. E. Peiser, in their valuable treatise Aus Babylonische Rechtsleben. Little can be added beyond additional examples and illustration.
(M298) The judges acted as a college and not separately. There might be present at a case a chief judge and several judges assisting. Other cases were decided before a single judge. The sibutu continue to act as a jury. They were the elders of the city, competent to decide the rights of the case. But the exact form of the organization is not yet quite clear.
The process began with the charge. The plaintiff preferred this himself, or by a messenger. His plea was heard and his proofs considered. Then the court caused the accused to come before them and answer the charge.
(M299) The process admitted of a third person intervening. Thus, A had pledged a plot of land to B for thirty-two shekels. Then he sold the property to C. C, dying, left the property to D, who wished to take possession from B, who continued to hold it in pledge. B goes to the judges and complains against D. A, being yet alive, intervenes and probably has to pay B. But the tablet being defective, we are not able to follow the case further. Only we see the sort of right which each had.
(M300) Another case is where two parties dispute as to the possession of a sum which is actually in the hands of a banker. The banker accordingly undertakes to produce the sum and its interest in court, and to pay it over to the successful party in the suit. The decision was written down and the notary of the court gave a copy to the plaintiff, if not also to the defendant, and kept one copy for the archives. The plaintiff thus obtained a guarantee against the defendant. But how it was enforced we have no evidence.
(M301) The kind of points in dispute and decided are, as before, exceedingly varied. The decisions for the most part illustrate other subjects rather than the processes in court; but a few examples may be of interest: A made an advance of forty-four shekels to B, who pledged a house for it. This state of affairs continued until both were dead. Their sons inherited. A's son demanded forty-four shekels of B's son who refused to pay. Both came before the judges. B's son, pleaded that the money was never loaned or else repaid long ago. The judges demanded evidence. Either the contract or a receipt must be produced. The claimant was able to present the contract, but no receipt was produced. So the judges assigned the claimant a plot of land belonging to the defendant as satisfaction for the proved debt. Here we have the tablet witnessed by the chief judge, the judges, and the notary.(219) What is curious is that the claimant was not content to keep the pledge. But it is probable that the debt was secured on a house which the creditor did not take into his possession. It is also surprising that the judges did not order the house to be handed over to the claimant. That may have been avoided, because of the family rights over the house. The debtor might thus have been rendered houseless, or have lost "his father's house." The widow may still have been an inmate. A great part of the document is taken up with the specification of the land handed over to the claimant. Hence a complete translation is not given.
(M302) A common type of case was a vindication of right to some sort of property. Thus(220) A had sold B a slave, but C came forward and said: "He is my slave who fled from me," and took an oath by Bel and Nabu, that he knew where that slave was living with A. The judges decide that C shall go where the slave is, and when he has proved that he is with A, the slave shall return to C.
(M303) We have an acknowledgment before the court and a promise to pay the debt. This promise was usually made on oath, or guarantees were given. Here is an involved case. A is father of B's mother. B's father is long dead. The property of A, his grandfather, has now come into B's hands. He finds an old bond for an advance from A to C and D. The latter D is also dead but had a son E, who inherited. Hence B now sues C and E for the money. The bond is shown to C, who remembers and acknowledges the debt and he now undertakes to bring his fellow-debtor E and discharge the debt.
(M304) Men did not always stand their trial, but sometimes settled the case by an agreement out of court.(221) A and his wife sued B for some slaves, people of their house. B dreads the trial and does not appear. The wife was B's mother, evidently remarried. B brings the slaves whom he still has and offers four minas as payment for one who has died in his house. The offer is accepted and parties agree to be quit.
(M305) The decision of a dispute was not always referred to professional judges. A very interesting example occurs,(222) when the eldest member of the family and kinatti aplisu, "the family of his son," act as judges. The plaintiff is an old lady, who had been married, and had a daughter married. These facts are not rehearsed in the tablet itself, which concerns a division of property, but are collected from a number of tablets, spread over some sixty years. The way in which information is thus collected is an instructive example of the manner in which the different documents illustrate and explain one another.(223)
(M306) Connected with legal decisions are the undertakings to appear before the court, of which we have several examples. Thus,(224) A undertakes to bring B to Babylon and answer the complaint of C. Or again, a certain gardener spoke to A before an official of the mar banutu. This official was subpoenaed, as we should say, and swore by Bel, Nabu, and Darius, that on the 8th of Sebat, two days hence, he would come and take up the case.(225)
(M307) The production of witnesses is the subject of not a few undertakings. Thus,(226) by a fixed date, five days hence, A shall bring B to be questioned about some asses belonging to the royal household. Again,(227) N swears to come, six days hence, and bring another, on account of the witness about A. He further undertakes to establish the partnership. What was the exact cause of quarrel was not stated. These agreements to abide by the testimony of a named witness may have been entered into without reference to judges, but the oath may have been administered before the court. Thus,(228) two parties agree to waive their dispute and abide by witness produced. This they do before the atu official of the gate of the temple. Again,(229) A is to bring witnesses on the second of Ab, to the door of the tikkalu's house, and prove when and to whom he gave certain garments. If this be proved, that B had received them, B will restore the said garments to A; if not, B is free. Further, if B does not appear on that day, he shall be bound to restore the garments. Several other examples illustrate the point.(230)
(M308) A common method was, as has already been shown, to produce the bond or other document, establishing the claim. If, for some reason, the document was not producible, the oath of the scribe who wrote it might be admitted.(231) The witnesses whose names appear on the document do not seem to have been summoned. But in one case,(232) when two Persians had sold two slave-girls, also Persians, to a Babylonian; a third Persian, who had been witness to the sale, was called on to swear, "I know that the money was paid," and he sealed the document.
VII. Public Rights
(M309) The early inhabitants of Babylonia are usually regarded as a non-Semitic race, whom we term Sumerians. Upon them was superimposed a layer of Semitic peoples. The first dynasty of Babylon is now often called Arabian. But the evidence of a previous admixture of peoples is not lacking. The subsequent history bears witness to many invasions by Kassites, Elamites, and nomad tribes, some Semitic, some probably not. Later came Persians and Medes, not to speak of Greeks and Parthians.
(M310) The foreign wars brought slaves from all the surrounding countries, even as far away as Egypt. We cannot here enter into any discussion of the foreign elements in the population; but it is important to note what the attitude of the Babylonians was to the foreigners resident in their midst. The evidence on the whole is very slight. It may be said, that as a rule, resident aliens became citizens and were under no disabilities. One section of the Code, if we correctly understand it, allows an alien to purchase an estate, provided he bears the liabilities to the state(233) which lay upon it. The "merchant" was probably usually an alien, and only temporarily resident. In the contracts of the Hammurabi period, with the exception of the frequent West-Semitic names, we have little trace of aliens. When the Kassites came we may expect the conquering race to have had full rights. In Assyria there is no trace of disability. Egyptians, Elamites, Armenians, Jews, Arameans, contract exactly like natives. In later Babylonian times we find the same freedom. Of course Persians, and, later, Greeks, were under no disabilities. Hence there is very little at any time to chronicle under this head.
We have marriages between Persians and Egyptians, with witnesses, Babylonian, Persian, Aramean, and Egyptian.(234) Medes rent a Babylonian's house, and live there.(235) A Persian buys of a Babylonian.(236) A Persian father gives Babylonian names to his children.(237) A vivid picture of the mixed nationality in the time of Artaxerxes II. is given in the "Business Documents of Murashu Sons," and the list of proper names attached to Professor Hilprecht's edition sufficiently illustrates the point.
(M311) Ownership of land carried its liabilities of tax or service. These were carefully guarded and it was the mark of an oppressor to exceed the normal demand. That, however, seems to have been regularly and continually paid. A very good illustration of public rights over land, or the relation between the state and the private owner, is afforded by the construction, in the reign of Cyrus, of a canal of Shamash by the priest of Sippara. It was to pass through certain lands and the consent of the owners had to be obtained. The magistrates and honorables of the city A, through which it would pass, and the peoples of the neighboring fields were assembled. They were asked to swear, as Susians, subjects of the King of Susa, that they would raise no difficulty. Then the priest took on himself the cost of the work on the canal, but stipulated that when it was completed, the neighbors should keep it in repair. Also he forbade the construction of any rival canal.(238) Riparians were responsible for the care of the canal as shown in the Code.(239)
(M312) The state undertook some duties. In the Code we note that the palace would, failing other means, redeem an official from captivity.(240)
(M313) There were certain local liabilities of a public nature. Thus the Code shows that the magistrate and his district were held responsible for highway robbery or brigandage in their midst.(241) It may be assumed that the funds to meet such liabilities were furnished by the city temple, for we note that if an official were captured, and his private means were not sufficient for his ransom, his city temple had to furnish the money.(242)
(M314) The whole question of taxation is full of difficulties. There were certain persons who paid tribute, that is, some proportionate part of their produce, others did personal service. There is frequent mention of dues of various sorts, at ferries, market-places and the like. Demands were made on the stock or crops of the farmers. But we are not yet in a position even to sketch the system of taxation.
VIII. Criminal Law
(M315) Cases concerned with criminal law were naturally not embodied in contracts. Some cases doubtless may be inferred from the legal decisions, but these are only where the penalty had already been commuted from death or punishment to payment or restitution. They are better taken as examples of civil law. But this distinction is not the cause of their rarity or absence. When a man had to be put to death, scourged, or exiled, there was no need for a written bond. Hence the only references which we have outside the Code and the phrase-books, are the penalties set down in marriage-contracts for conjugal infidelity, or for breach of contract voluntarily agreed to by the parties to it.
(M316) We have one case from Assyrian times of the assignment of a slave-girl, as composition for manslaughter. Atarkamu, a scribe, had caused the death of Samaku, whose son Shamash-ukin-ahi had the right to exact vengeance. Whether as the result of a legal decision or not, Atarkamu hands over a slave-girl to Shamash-ukin-ahi and they agree to be at peace. The name of Ashurbanipal occurs in a position which strongly suggests that the king himself sat in judgment upon the case. The tablet is so fragmentary that little else can be made out, but it seems to have been stipulated that the slave should be handed over "at the grave."(243)
(M317) In later Babylonian times we have a reference to imprisonment arising out of a case of guarantee.(244) The priest of Shamash at Sippara had put A in prison in fetters; B, a fellow-official of his of the same standing, bails him out, giving guarantee to the priests and sibutu that A shall not go away, or if he does, that B will do his work.
(M318) A case of assault and forcible entry into a house occurs.(245) But the tablet is so defective that we cannot make out the rights of the case. The superintendent of the city Shahrin, in the eighth year of Cyrus complained to the priest of Shamash at Sippara, to the following effect: He had taken into his house, as a prisoner, a certain man A. He pleads that he is uncle to the priest and chief magistrate of the city. Why then has the priest raised his hand over him? Further, seven men, who are armed, have burst in his door and entered his house and taken a mina of gold. Whether this was a rescue by relatives of the prisoner, or by order of the priest, does not appear. As a result of this complaint, the elders of the city were assembled and depositions made. Beyond the plea on the part of the house-breakers that someone had paid them to break in the door, and that the prisoner A was someone's pledge, we get no further information.
(M319) A case of procuration of desertion, forbidden by the Code(246) under pain of death, was condoned by the injured party.(247) A caused a maid of B's to leave her master's house. B received her back, pardoned A, and took no money of him.
(M320) Adultery was punished in the Code by drowning.(248) The Code in this and similar cases of sexual irregularity is explicit that the case must be flagrant. Suspicion was not enough.(249) But conduct leading to scandal had to be atoned for by submission to the ordeal. The Code did not take a higher ground than public opinion. The private contracts name death as punishment for adultery. Usually it is drowning, but being thrown from a high place, temple, tower, or pillar is named. In the later contracts death was still the penalty for a wife's adultery, but the penalty had ceased to be drowning only. The adulteress might be put to the sword.(250)
A woman's procuring her husband's death, for love of another, was punished by impalement.(251)
(M321) Incest on the part of a man with his own daughter involved his banishment.(252) Incest with a daughter-in-law, if she was his son's full wife, was apparently punished by his being drowned. The Code is obscure here and we are not sure whether she was drowned also.(253) If the girl was not yet fully married, the case was treated as one of ordinary seduction, and the culprit was fined half a mina.(254)
If a man committed incest with his own mother, both were burned.(255) If a man had intercourse with his foster-mother, or step-mother, who had borne children to his father, he was disinherited.(256)
IX. The Family Organization
(M322) Marriage is the bond which unites the different members of the family. The married pair, their children, slaves, and adjuncts, one side or the other, constitute the family unit. The Sumerian laws presuppose marriage; but, so far as known, merely attached penalties to repudiation of the wedded ties. The Code is very full and explicit and forms the basis of all our knowledge. The contemporary documents extend it in some particulars. In Assyrian times we know little or nothing about the laws concerning marriage. In later Babylonian times very little is known until the Persian period, when we have many illustrations. But what we know, or can gather from scattered hints, makes it clear that the state of things represented in the Code remained practically unchanged for the whole period.
(M323) The Code is explicit that a woman was not a wife without "bonds."(257) This was a marriage-contract; of which the essentials were that the names of the parties and their lineage were given, the proper consents obtained and the declaration of the man that he has taken so-and-so to wife inserted. As a rule, stringent penalties are set down for a repudiation of the marriage-tie. In these bonds a man might be required to insert the clause that his wife was not to be held responsible for any debts he might have incurred before marriage. The Code enacts that such a clause shall be held to act both ways; if it is inserted, then the man shall not be liable for his wife's debts before marriage.(258) But, if no such bond existed, the wedded pair were one body as far as liability for debt was concerned, by whichever it had been contracted and, in spite of such a bond, both were liable together for all debts contracted after marriage.
(M324) The family relationship was of primary importance. Whatever may be said about traces of matriarchy in Babylonia, we have no legal documents which recognize the institution. The father is the head of the family and possesses full power over his wife and family. But the woman is not in that degraded condition in which marriage by capture, or purchase, left her. She was a man's inferior in some respects, but his helper and an honorable wife.
(M325) Not only was the family, which consisted of the wedded pair and their dependents, a unit, but there was also a connection with ancestors and posterity which enlarged the family to a clan or gens. In this sense it often appears. The family thus constituted had definite rights over its members. It was very important to a man to be sure of his family connection. We may note the importance attached at all epochs to a man's genealogy as distinguishing his individuality. His family identified him. There was a very large number of well-marked and distinguished families, which took their names from a remote ancestor. So far as our evidence goes, these ancestors were by no means mythical, but actually lived in the time of the first dynasty of Babylon. To all appearances they date back "to the Conquest." Unfortunately no attempt has yet been made to work out the family histories. But men of such families were the mar bane, or "sons of ancestors," and had special privileges, which continually emerge into notice. We may compare the hundred families of China and the patricians of many nations. There were other families of scarcely less antiquity and consideration. They do not name their ancestor, but refer to him as a tradesman. They were sons of "the baker," of "the measurer," et cetera, with which we may compare our proper names Baker and Lemesurier. There was a court of ancestry, bit mar banuti, which investigated questions arising from claims to belong to such families and which doubtless preserved in its archives the genealogical lists of these exclusive families. They must have registered the birth of all fresh members and all adoptions; for men were adopted freely into such families.
(M326) It is not clear whether all members of a family which traced descent, real or putative, from a trade-father, actually carried on that trade. If so, we should have examples of a workmen's guild. Certainly many men who carried on a trade were "sons" of the trade-father, but apparently not all. The Code notes the adoption of a child by an artisan who teaches him his trade. In certain cities the trades had their quarters. We read of the "city of the goldsmiths" in Nineveh.
(M327) It may well be that these guilds were close corporations at first and continued so to be in the less crowded trades, but rivals outside the guild also came to be tolerated. The slaves were artisans in great numbers and their increase may have led to the decay of the old artisan guilds of free workers.
(M328) The importance of descent was not a sentimental matter only. The laws of inheritance involved a careful distinction between proper heirs and a variety of claimants. Hence it seems likely that there was a registration of births, deaths, and marriages, at least covering the patrician families. We have such examples as a man claiming to be of same father as another, claiming brotherhood. The other repudiates the claim.(259) The tablet is too fragmentary for us to follow the arguments. The slave Bariki-ilu claimed to be a mar banu and his claim was heard before the court of the mar bane.(260)
(M329) Further, as the wife's marriage-portion, if she died childless, went back to the "house of her father," and as a man who died without issue had to leave his property to his "father's house," and as many had only a life-interest in their property, while the family usually had a right of pre-emption in the case of proposed sales, we see that the family always had a strong hold over property. Not only was it for the man's interest to be registered as of a certain family, but it was also for the family's interest to register all its members.
(M330) There are suggestions that the family assumed certain responsibilities over the man; for in Assyria it appears that the family might come forward and liberate a man from his debt. A free man, who had been sold as a slave to Ashnunnak, and who escaped to Babylon, after five years, being claimed as a slave by the levy-masters there, chose to serve his father's house. His brothers swore by Marduk and Ammiditana the king, making an irrevocable declaration that as long as he lived he should take up the duties of his father's house with his brothers.(261) In the later Babylonian times, the head of the family, though only a distant relation, was called upon to act as judge in a dispute concerning the disposition of property.
X. Courtship And Marriage
(M331) The suitor came with presents to the parents of the girl. Most writers see in this a survival of the purchase of the bride. The name of this gift, terhatu, is undoubtedly connected with the name of the bride, marhitu. This present, or bride-price, differed greatly with the circumstances of the parties. Both money and slaves were given, but a simple sum of money was more common. In cases where the bride was rich or highly placed the amount seems less. A very usual amount was ten shekels, but we have examples from one shekel up to three minas.(262) The Code assessed it at one mina of silver for a patrician and a third of a mina for a plebeian.(263)
(M332) Without this bride-price the young man could not take a wife. Hence it was expressly secured to him by the Code, if his father died before he was of age to marry, and reserved as a first charge on the father's estate. There is some evidence that a woman might make this present to her future husband. But that may have been because he was too poor to make it himself and she found him the means. As a rule, the parents gave this money to the bride. But we are not in a position to say whether they did so at once, on the consummation of the marriage, or on the birth of a child. The suggestion that it was her Morgengabe remains without support. Certain it is that it was not returned always. In the contracts it seems to be given to the bridegroom with the bride. On a wife dying without children, the husband was bound to return her marriage-portion to her family. But if the bride-price which he had given for her had not been returned to him, he could deduct its value. On a divorce, he was bound to let his wife have not only her marriage-portion, but the bride-price paid back to him. If there had been none, he must give her a fixed sum instead of it.
(M333) From the phrase-books we may gather that there was a sort of ceremony about presenting the bride-price to the father: it was placed on a salver and brought in before the parents.(264) This was probably a part of the ceremony of betrothal.
If the father rejected the suitor, he was bound to return the bride-price offered.(265) A curious section of the Code enacts that if the suitor's comrade intrigued to break off the match, he was excluded from marrying the girl himself.(266)
(M334) If, after he had brought in the bride-price to his prospective father-in-law, the suitor took a fancy to another girl, he might withdraw from the suit. But he then forfeited what he had offered. If this really was the result of having taken a dislike to a plain girl, we may suppose that such a maiden might accumulate several bride-prices and so acquire some wealth. This may explain Herodotus's idea that the handsome girls made a dowry for the plain ones. But there is not a shred of evidence for their doing so in the way he suggests. A girl was a virgin when she was married.(267)
(M335) Of interest in the later Babylonian texts is the fact that the preliminaries of the marriage are more fully illustrated. Thus we read of the wedding of the daughter of Neriglissar:(268) Nabu-shum-ukin, the erib biti of Nabu, judge of Ezida, spoke to the King Neriglissar, saying thus: "Give to me Gigitum, your young daughter, to wife." The tablet has only preserved a few lines, from which we cannot be sure that the marriage took place. The tablet was called a duplicate of Ezida, showing that it was preserved in the Nabu temple at Borsippa.
The following case is one of the clearest:(269)
(M336)
Nabu-nadin-ahi, son of Bel-ahe-iddin, grandson of Ardi-Nergal, spoke thus to Shum-ukin, son of Mushallimu, saying: "Give me thy daughter, Ina-Esaggil-banat, the maiden, to wife, for Uballitsu-Gula, my son." Shum-ukin listened to him and gave his maiden daughter, Ina-Esaggil-banat to Uballitsu-Gula, his son. He gave also one mina of silver, three female slaves named, and house furniture, with Ina-Esaggil-banat, his daughter, as a marriage-portion to Nabu-nadin-ahi. Nana-kishirat, the maid of Shum-ukin in lieu of two-thirds of a mina of silver, her full price, Shum-ukin gave to Nabu-nadin-ahi out of the one mina of silver for her marriage-portion. The deficiency, one-third of a mina of silver, Shum-ukin will give Nabu-nadin-ahi, and then her marriage-portion is paid. Each took a writing.
Here the father negotiates for his son. There is no evidence of any bride-price being paid. But the examples of this kind of document are too few for us to establish any fixed conclusions. In the following case something very like it appears.(270)
(M337)
Dagil-ilani, son of Zambubu, spoke thus to Hamma, daughter of Nergal-iddin, son of Babutu, saying: "Give me thy daughter, Latubashinni, she shall be my wife." Hamma listened to him and gave him her daughter, Latubashinni, to wife; and Dagil-ilani, in the joy of his heart, gave to Hamma for Latubashinni, her daughter, Ana-eli-beli-amur, a maid, for half a mina of silver and a mina and a half of silver to boot. The day that Dagil-ilani shall take a second wife, Dagil-ilani shall give Latubashinni a mina of silver and she shall go back where she was before. With the cognisance of Shum-iddin, son of Ina-eshi-eter, son of Sin-damaku.
Here the man himself negotiates. The mother gives the bride. Whether he really buys her is hard to say. The mother may have adopted the girl to care for her old age, as was often done. The bridegroom may have compensated the mother with means to adopt another daughter. What locus standi Shum-iddin had is not clear. He may have been the real father of the bride and so had to be satisfied that she was fairly treated by the change in her position. Or his consent to the bridegroom's alliance may have been needed. The penalty set down for divorce is not high and the bride was probably poor; we see she was portionless. In other cases it was as high as six minas of silver.(271) Occasionally the deed of marriage also named a penalty for adultery on the part of the wife.
(M338) Women were given in marriage. The suitor for her hand did not perhaps see her until marriage, but this is not likely, since he is contemplated by the Code as capable of having cast his eyes upon another, and so desiring to retreat from his suit. At any rate, he brought presents to her father, who accepted or rejected him. There is no hint that the woman had any choice. The result of this power over the child's marriage was that conditions might be imposed on the marriage. The bride might be required to do service to an existing wife, or to the bridegroom's mother. Further, the disposal of property was not entirely free after marriage. It depended upon what the father had laid down in the marriage-settlement on his daughter. It was strictly limited to the woman's children, and if there were none it went back to her father's house.
(M339) In early times, the father usually gives the bride. But in a great many cases this duty fell on the mother. How this came about we do not usually know. The father being dead, or the girl illegitimate, seem the best explanations, as a rule. In the absence of father and mother, the brother as head of the family assumed the duty. The examples of this are common enough.(272)
For later times also the examples are numerous of the power of agnates to give in marriage. It may perhaps be deduced that the children, in these cases, were young.(273)
(M340) Women once married, were free to marry again of their own choice, whether divorced, separated, or widowed. A betrothed girl, or bride, if her marriage were not yet consummated, being seduced by her father-in-law, in whose house she had gone to live, was also free to marry. But it does not seem that women who were yet virgins could choose their own husbands. Even princesses were given in marriage.
(M341) The man was not altogether free to marry. The Code contemplates a boy left by the death of his father too young to marry. The brothers, when they divided the father's property, were bound to set aside for him, in addition to his share of his father's property, a sum for a bride-price, and take him a wife. It seems probable that men married while still young and living at home. For the Code contemplates the bride being brought to live in her father-in-law's house.(274)
In later Babylonian times, at any rate, the son could not marry without his father's consent. This we learn from a suit in high life, in the time of Cyrus.(275) A high official of the king's, A, brought a suit against B, who was "over the house," before the nobles and the king's judges. A accused B and C, an official of his house, of having given a tablet of marriage-contract of D, a sister of C's, to A's son without A's consent. Put to the oath, B swore that he did not seal the tablet. Then D was questioned. Then C acknowledged that he had drawn up and sealed with B's seal the marriage-contract of D to A's son. The judges ordered D to return to her brother's house. The tablet was to be broken whenever found. If afterward D should be seen with A's son, she was to bear the sign of a concubine.
(M342) From other examples the conclusion is inevitable that if a woman desired to be a full and proper wife she had to obtain the consent of her bridegroom's father. Thus we read:(276) "The day that the woman A is seen with B he shall bring her to the wedding-house. If she does not say to the master of the wedding-house: Send for C, the father of B, then she shall wear the sign of a concubine." Her mother was present at the sealing of this agreement. From this we may deduce that weddings took place at a definite spot, called the "wedding-house." The name was literally "house of the males," or "of the named ones," and also house of the mar bane, or "sons of ancestors." It is clear that this was a registration court where all who had pretensions to ancestry, or were people of position, were enrolled. One whose name was found there was a man "with a name," also a "son of an ancestor." He was probably registered there at birth, marriage, and death. The master of that house was a registrar and evidently could marry people. It was expected in this case that the woman, if she wished to be properly married, would send for the bridegroom's father, whose consent was necessary. Another name for the house was bit pirsatum, the meaning of which is obscure. But as Ishtar was belit parse, the "lady of the parse," we may connect it also with weddings.
(M343) We have seen that the terhatu, or present made to the parents by the suitor before marriage, was usually handed over to the bride on her going to her husband's house. There is frequent reference to this essential preliminary. It had to be carefully laid aside for the young man by his mother or brethren, if he had not married in his father's lifetime, and was secured to him by law, apart from and above what might come to him as a share of his father's property. Otherwise he would suffer loss in having to find it out of his own pocket, when his married brothers had been provided with the means during their father's lifetime. Usually it was an amount of silver, one shekel up to three minas. In later Babylonian times there is little evidence of the parents receiving gifts. We now and then find it so. Thus a man gave a slave and a mina and a half of silver for his wife to her mother,(277) but it is not clear whether or not this was to buy her.
(M344) A far more valuable endowment of the bride was her marriage-portion. If her father was not alive to give it to her, the duty fell on his heirs, and she had a right to it over and above her daughter's share of his property. Thus we find that the brothers, on giving their sister a share, contract to further endow her if she marries.(278)
(M345) We have one or two lists that show what might be expected as a trousseau by a Babylonian bride. One which illustrates the Code(279) extremely well, narrates first what had been given a notary and NU-BAR of Marduk by her father on her taking her vow and entering the temple of Anunitum. This was his "grant" to her and was known by the same name as the marriage-portion of a bride. It included half a shekel of gold for a nose-ring (?), two shekels of silver as a finger-ring, another ring of silver of one shekel, one malumsa, three cloaks, three turbans, one small seal worth five minas, two jewels of unknown character, one bed, five chairs, five different sorts of things apparently made of reeds, the concubine Suratum, her step-mother. Unfortunately many of these renderings are still quite conjectural. It is interesting to note that the father left to his daughter his concubine, who was probably a slave, and possibly really the girl's mother. But now this girl is about to marry and her own mother, Shubultum, at any rate, her father's full wife, together with her brothers and sisters, give her all this property and cause it to enter her husband's house. They had a reversionary right to her property, since as a votary she could not alienate it from her family.(280) So now they waive their right, as it will after her marriage pass to her children, if she has any.(281) So they are said to "give" her what her father had already "granted" her. Further, they return to her husband the terhatu, of one-third of a mina of silver, which he had presented to them.(282) The marriage-portion could not be reclaimed by the wife's family at her death if she had children. If she had none, it went back to her family.(283)
(M346) Another long list, also a "grant" to a votary, is found in two documents which contain apparently a complaint of oppression made to the king. Neither is sufficiently complete to be decisive as to the purpose of the letters or reports which are written in the first person. But they are duplicates as far as they preserve the list and in many other long phrases. Here is the list:
Four ... of gold, two rings ... each of them one ... two dishes, carved with karakku birds, one dish carved as a lion, whose head is of AB wood, and its border of KU wood, one chair of KU wood, three chairs (of different makes) of AB wood, one oil-pot, salla, one oil-pot containing two hundred KA of Carchemish work, one mixing-pot of copper, one dupru kanku containing thirty KA, two kundulu of copper, one ... two ..., one for ...
Although this list is full of words of which the meaning is obscure as yet, one can see the main drift of it, jewelry, household furniture, pots and pans, and whatever went to the domestic equipment of the house. It is of interest to note that already Carchemish was celebrated for its wares.(284)
With these lists may be compared the Tell-el-Amarna lists given in transcription, with a few hints at translation, by Dr. Winckler.(285) They are lists of presents sent by a king of Egypt to a king of Babylon; by Dushratta, King of Mitanni, to Nimuria, King of Egypt, as the marriage-portion of his daughter, Taduhipa, and another list of her dowry. The greater part of the names of these articles defy translation.
(M347) During the Fourth Dynasty of Babylon, the celebrated Michaux Stone(286) records the gift of lands by a father to his daughter on her marriage. From Kassite times we have a list similar to the above, but not easily translatable. The supposed examples of dowry in Assyrian times are not really such. But in the later Babylonian era the marriage-portion was still given by the father. It bears, however, the name nudunnu, once reserved for the husband's free gift to his wife. The nudunnu, in one case, is ten minas of silver, four maid-servants, house-furniture, and the like.(287) It might include sheep and oxen.(288) See also the later Babylonian laws about the marriage-portion.(289) A long list might be made out from these sources of the house-furniture,(290) but as before we do not know what half of the terms mean.
(M348) There are many examples of receipts given for the marriage-portion received in full.(291) Sometimes it was merely promised. It was not always paid promptly. Law C made a note of this. The father might have promised a portion, and even given a deed of gift for it to his daughter. But if his means have diminished he cannot be held to a literal fulfilment of the promise. He may do what he can. The law adds significantly that "father-in-law and son-in-law shall not oppress one another." We find that actions were frequently brought to obtain a marriage-portion. We have an instance where the payment was withheld for nine years.(292)
(M349) A husband might make a settlement on his wife. In the time of the Code this was called a nudunnu. It had to be by deed of gift. It might cover income-producing estate as well as personal property. But it was hers only for life. She could leave it as she chose among her children of the marriage, but not to members of her own family.(293) We may regard it as pin-money. Her husband's heirs could not disturb her possession of it as long as she lived. But she forfeited it, if she married again.(294)
(M350) The betrothed maiden did not at once leave her father's house. This we learn from the Code, which enacts a penalty on one who should seduce a betrothed maiden living in her father's house.(295) It seems that on both sides betrothal took place in early life and that the arrangements were in the hands of the parents. A father was expected to take a wife for his son.
(M351) Neither the Code nor any contracts throw light upon the marriage-ceremony, but a tablet published by Dr. Pinches in the Proceedings of the Victoria Institute, 1892-93, reprinted as "Notes on some recent discoveries in the realm of Assyriology," contains certain suggestions.(296) It is very fragmentary and in the form of an interlinear translation from the Sumerian. It is not always clear who are the actors referred to, but we may perhaps take it that the officiating ministers, priests, or elders, first placed their hands and feet against the hands and feet of the bridegroom, then the bride laid her head on his shoulder and he was made to say to her: "I am the son of nobles, silver and gold shall fill your lap, you shall be my wife, I will be your husband. Like the fruit of a garden I will give you offspring." Then there is a wide gap. But in the next column we seem to have a further part of the wedding-ritual. The officiating ministers ceremoniously bound sandals on the feet of the newly wedded pair, gave them a leather girdle (? or strap) and fastened to it a pouch or purse of silver and gold. The further ceremony included placing them somewhere in the desert. Then turning their faces to the sunset and addressing the man, the minister says: "I swear by the great gods and you may go." He bids him not to put off the garment of Ea, nor something belonging to Marduk of Eridu. Then comes a wide gap, but the fourth column seems to read "until you have settled in the house, until you have reached the city, eat no food and drink no water, taste not the waters of the sea, sweet waters, bitter waters, the waters of the Tigris, the waters of the Euphrates, waters of the well, nor waters of the river, to fly up to heaven direct not your wings, to burrow in the earth set not your dwelling. As a hero, the son of his god, let him be pure."
The passage is very difficult and much of the rendering is conjectural, but the point of the address seems to be that the young man was to go straight home, live with his wife, and be good, as a true child of God. The first column seems to be an enumeration of men who are cursed with misfortunes, for example, "one whom his mother brought forth with weeping," and perhaps forms part of a prayer that the bridegroom may not ever be like such men. We must hope some day to find a fuller text and so to determine the connection of the various columns. But it is difficult to imagine what else the text can be than part of a wedding-ceremony.
(M352) The young couple did not always set up a house of their own; they often went to live with the bridegroom's father. This is shown by the penalty fixed by the Code for the seduction of a daughter-in-law by a father-in-law. The daughter-in-law was living in his house.(297)
(M353) In the earlier days monogamy prevailed. A man ordinarily had one wife. Polygamy, however, was not unknown. For a variety of reasons men did sometimes have two wives, but these cases were treated as exceptions. A man might also have a concubine or a slave-girl to bear him children. These did not bear legitimate children. He might adopt them, but was not bound to do so. If a man married twice, the children of both marriages shared equally in his possessions; but they did not put their mothers' marriage-portions into a common fund and divide that equally. The children of the first wife divided among themselves their own mother's marriage-portion, and the children of the second marriage did likewise.(298)
(M354) In Assyrian times there is clear evidence that among the slaves and serfs, at least, polygamy was fairly common.(299) In the later Babylonian era polygamy also existed. Wives might be sisters.(300) We read of a "second wife."(301) But taking a second wife was held to be a slight upon the first, in whose marriage-contract the clause was inserted that in such a case the husband must pay her a mina of silver and allow her to go back to her father's house. In that case the man was hardly bigamous. It was a case of divorce, and perhaps a legal ceremony before judges was also necessary.
(M355) A man might form a connection with a woman other than his wife. A concubine was a free woman, but had not the status of a wife; nevertheless she might bring with her a marriage-portion, over which she had the same rights as a legal wife.(302) She was taken into the same house as the wife, but she might not rival her. A man's excuse for taking a concubine was that his wife was childless. He was not allowed to take a concubine, even if his wife was childless, if she gave him a maid to bear him children. Only when the wife was herself childless and would not allow him a maid, was he allowed to bring a concubine into his house. This second wife was married to him. She often seems to have been bound to serve the first wife and treat her as her mistress. But she had the same rights as a wife. If she were put away, the husband had to return her marriage-portion, if she had any. She had the usufruct of house, field, and goods. She was not deprived of her children, but had the custody and education of them. When they entered into possession of their father's property, she shared with them, taking the same share as a child. Then she was free to marry again.(303) It seems that in any case, the children of a concubine were full children and with the same standing as the children of the first wife. The father might dower his daughter for a concubine; she then had no claim to share with her brothers and sisters at his death.(304) But, if her father had given her no marriage-portion, her brothers must give her one at the division of his property.(305)
(M356) The case was different with the maid—a slave who by her mistress's consent bore children to her master. She was still a slave and if she rivalled her mistress, or was impertinent to her, she could be put back again among the slaves; perhaps even branded. But, if she had borne children, she was not to be sold as a slave. At the death of her master she was free. Her children by him were free in any case. If her master were so minded, he might make them full sons by verbal acknowledgment. It was enough to say, "my sons." But that he had done so probably had to be proved by a witness. A family unacknowledged by the father would on his death have only a mother. In such a family the mother was the obvious ruler. We must be on our guard against mistaking her position, or that of the concubine above, for examples of matriarchy. If she was pledged for debt, she could not be sold, she must be bought back.
(M357) That a slave usually was married to a slave-girl with his master's consent and even by his direction is quite the rule. Masters even went so far as to buy a slave-girl to be wife to a slave. There is no reason to think that the master did not respect the slave's matrimonial rights. But the slave's wife was not always owned by the slave's master. Sometimes she was owned by a different master, or was free. There was no especial disgrace attaching to becoming the wife of a slave. A free woman might not only marry a slave, but bring with her a marriage-portion, as if she had married in her own rank. The man had no ancestral property, he was "a son of no one." Hence when he died all the property to be divided consisted of what the married couple had acquired together, and the wife's marriage-portion. To the latter she had full and unquestioned right. The master was his slave's heir. So the property which the pair had acquired during their married life was divided into two equal portions. The master took one half, the wife the other for herself and her children. The children were all free. When both father and mother were slaves, so were the children. There was no property then for the slave-children to inherit.(306) |
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