Babylonian and Assyrian Laws, Contracts and Letters Part 10

Exactly as in the Code, -- 163.

The first seven lines of Col. IV. are too fragmentary to give a connected sense, but are still concerned with the marriage-portion.

(M217)

Law G. [Col. IV. 8-24.]

A wife, whose marriage-portion her husband has received, who has no son or daughter, and fate has carried off her husband, shall be given from her husband's property the marriage-portion, whatever that was. If her husband has made her a gift, she shall receive the gift of her husband with her marriage-portion and take it away. If she had no marriage-portion, the judge shall estimate the property of her husband and, according to her husband's means, shall grant her something.

It is noteworthy that in the above laws the old usage is reversed. Now the _nudunnu_ is the marriage-portion, given with the bride, and the _eriktu_ is the husband's a.s.signment to the wife. With this alteration the law agrees with the Code, -- 171. But there she has a family.

(M218)

Law H. [Col. IV. 25-45.]

A man has married a wife and she has borne him children; after that man has been carried off by fate, and that woman has set her face to enter the house of another, she shall take the marriage-portion which she brought from her father's house, and whatever her husband presented her as a gift, and shall marry the husband of her choice. As long as she lives, she shall enjoy food and drink from them. If there be children of this husband, they and the children of the former husband shall share her marriage-portion. The sisters....

This is practically the same as Code, -- 170, but it is differently arranged and the phrases differ markedly. Note that the sisters were separately treated.

(M219)

Law K. [Col. V. 33-46.]

A man has married a wife and she has borne him children, and fate has carried off his wife; he has married a second wife and she has borne him children; after the father has gone to his fate, the children of the former wife shall take two-thirds of the goods of their father's house, the children of the second wife shall take one-third. Their sisters who are dwelling in their father's house....

This must be contrasted with -- 167 of the Code. There all sons share equally. Here the first family take two-thirds. The sisters were also treated separately. It is clear that we have to do with a code which preserves many features of the early times, but has many new features of its own. It is greatly to be desired that further portions should be published.

IV. The Social Organization Of The Ancient Babylonian State

(M220) The State appears in the light of the ?ammurabi Code to have been composed of three great cla.s.ses, the _amelu_, the _mukenu_, and the _ardu_. To the first cla.s.s belonged the king and the chief officers of state, and also the landed proprietors. Their liabilities for fines and punishments were higher. Also in their case the old law of "eye for eye, tooth for tooth" still held; while others came under a scale of compensations and damages. This may point to a racial difference. The ancient laws of Arabia may have been carried with them by ?ammurabi's tribal followers, while the older subject-residents accepted the more commercial system of fines. The old pride of the Arab tribesman may have forbidden his taking money as payment for his damaged eye, or tooth. But the _mukenu_ was more "humble," as his name denotes, and may well have formed the bulk of the subject-population. He was a free man, not a beggar. He was not without considerable means, as we see from the sections referring to theft from him. He had slaves,(62) and seems to have been liable to conscription. His fees to a doctor or surgeon were less than those paid by an _amelu_. He paid less to his wife for a divorce,(63) and could a.s.sault another poor man more cheaply than could an _amelu_. There can be no doubt that the _amelu_ was the "gentleman" or "n.o.bleman," and the _mukenu_ a common man, or poor man. But the exact force of the terms is uncertain.

In process of time _amelu_ came to be used, like our "sir," and even "esquire," of those who had no special qualifications for the t.i.tle. Like the "gentleman's gentleman" of the servant's hall, he was only a respectable person. So, even in the Code, _amelu_ usually means no more than "man." It already appears as a mere determinative of personality in the t.i.tles of laborers and artisans,(64) when it cannot stamp them as landed proprietors. But it may mark them as members of the guilds of craftsmen and recall the respect due to such. If, however, we press this, we must admit a guild of day laborers.

There is no suggestion of any legal disability on the part of a _mukenu_; he is merely a person of less consideration. Whether or not his ranks were recruited from the children of slaves by free parents is not clear, but it is very probable that they were.

The slave was at his master's command and, like a child in his father's house, to some extent a chattel. He could be pledged for debt, as could a wife or child. He was subject to the levy,(65) and his lot was so far unpleasant that we hear much of runaway slaves. It was penal to harbor a slave, or to keep one caught as a fugitive.(66) Any injury done to him was paid for, and his master received the damages.(67) But he was free to marry a free woman and the children were free. So a slave-girl was free on her master's death, if she had borne him children; and the children were also free. He was subject to mutilation for a.s.saulting a free man, or repudiating his master.(68) But his master had to pay for his cure, if sick.(69) He was not free to contract, except by deed and bond.(70) Yet he and his free wife could acquire property, half of which would fall to his wife and children on his death.

(M221) The Code reveals the existence of a cla.s.s of men, who were indeed known from the letters of ?ammurabi and the contemporary contracts, but whose functions are not easy to fix. They were the _rid ?abi_ and the _ba'iru_. By their etymology these t.i.tles seemed to mean "slave-driver,"

and "catcher." But the Code sets them in a clearer light. They were closely connected, if not identical, officials. They had charge of the levy, the local quota for the army, or for public works. Hence "levy-master" and "warrant-officer" are suggestive renderings. For the former official, "taskmaster," the one over the gang of forced laborers and reminiscent of the old time press-gang officers, is a fair translation. "Field cornet" would perhaps suit the military side. For some aspects of their office the ancient "reeve" may be compared. Whether the "catcher" actually was a local policeman, whose chief duty was to apprehend criminals and reluctant conscripts, is not yet clear. The same name is used of "fishermen," who were "catchers" in another sense, and of hunters. A really satisfactory rendering is impossible, as we have now no officials whose duties actually correspond to theirs.

(M222) Each of these officials held what may be called a benefice, or perhaps a feoff. It consisted of land, house, and garden, certain sheep and cattle as stock, and a salary. It was directly ascribed to the king as benefactor. We may compare the Norman lords settled in England by the Conqueror, or the Roman soldier-colonists. The men may well have been the followers of the first founder of the dynasty. In a very similar way the Chaldean conqueror, Merodach-baladan II., long after, settled his Chaldean troops in Babylonia. We may regard these men as retainers of the king, and probably as originally foreigners. The benefice was held by them for personal service. They were to go "on the king's errand" when ordered. It was a penal offence to send a subst.i.tute.(71) The errand might take them away from home and detain them a very long time. In such enforced absence the official might delegate his son to take his place and carry on his duty.(72) This implies that there was a local duty besides the personal service. Further, this needed a grown man to discharge it.(73) The _loc.u.m tenens_ enjoyed the benefice,(74) with a reserve of one-third for the wife to bring up the children of the absent official. An official by neglecting the care of his benefice ran the risk of forfeiture.(75) This came about by his absence giving the _loc.u.m tenens_ opportunity to acquire a prescriptive right, which he might do in three years, if he showed himself a more worthy holder. But this was only if the absentee had been neglectful, and a one-year tenancy conferred no such right.(76)

(M223) The service on which the official might be engaged was evidently military and had risks. It is not certain whether the _dannatu_(77) is really a "fortress," or a "defeat." The word has both meanings. It does not really matter. Either way the official is captured by the enemy of the king. He was bound to pay for his own ransom, if he had the means; or if not, his town must ransom him and, failing that, the state. But he could not raise money on his benefice. Moreover, while it could descend to his son, it was inalienable. No diminution by bequest to his female relatives, no sale of part of it, no mortgage on it, nor even its exchange for other like estate, was allowed.

Further, the official and his benefice were protected. He could not be hired out by his superior officers, nor in any way plundered or oppressed.

He held tax free, subject only to his feudal duty.

(M224) In some cases the tributary there is a.s.sociated with these two officials. No duty is set down for him, beyond that implied in his name of paying a tribute. It is not clear that all land was held on one or the other scheme, but it is so in parts of the East still. Some land is held by personal service, some on payment of a tax. This tax later became the t.i.the. The personal service was later compounded for by furnishing a soldier or two for the army. The liability to serve in the levy continued to be borne by slaves and the lower cla.s.ses.

(M225) That all land did owe either personal service, or tax, is probably to be deduced from -- 40, where we read that though a levy-master, warrant-officer, or tributary could alienate nothing of their holdings, other land-owners could do so. But they did so subject to the buyer taking over the duty, or service, of the land so transferred. One of the cla.s.ses here named, the votary, appears subject to service elsewhere. The votary of Marduk is expressly exempt from this service.(78) The merchant, who represents another cla.s.s, appears very often to have been a foreigner, only temporarily resident in the country.

(M226) The votary was already known to us from the contracts, but there was little to fix her functions. As seen in the Code, she was a highly favored person. Vowed to G.o.d, usually to Shamash at Sippara, or Marduk at Babylon, there seems little to connect her with the prost.i.tute-votaries of Ishtar at Erech. She ordinarily lived in the convent, or "bride-house" of Shamash. She was given a portion, exactly like a bride, on taking her vow and becoming the "bride" of Shamash. But her property did not go to the convent. At her father's death, with her consent, her estate might be administered by her brothers, or she could farm it out. At any rate, she was provided for during her lifetime. But at her death, unless her father had specially given her power to bequeath it, her property went back to her family. She was not, however, doomed to spend all her days in the convent. She could leave it and even marry. But she was expected to maintain a high standard of respectability. For her to open a beer-shop or even enter one for drink was punished by burning. She remained a virgin, even if married. She could have no children and must provide her husband with a maid, if he wished to have a family. But she was carefully guarded from any reproach as childless. She ranks as a married woman, even if unmarried, and is protected from slander. Many n.o.ble ladies, and even kings' daughters, were votaries.(79)

(M227) The merchant continually appears. Some pa.s.sages suggest that he was a state official. But this is really pressing far the interest which the state took in him. He was, doubtless, like the Jew of the Middle Ages, a valuable a.s.set to the king. He seems to have been the usual moneylender, so much so that in many places "merchant" and "creditor" are interchangeable. A man is usually said to borrow of "his merchant," as we say "of his banker." Doubtless, the king also borrowed from him. It is certain that the Code was very lenient to him. But the merchant also did business in the way of ordinary trade. As a capitalist he sent out his travellers and agents with goods far and wide, even into domains where the king's authority did not reach. Much of the Code is occupied with regulating the relations between the merchant and his agent. The agency was that form of _commenda_ which is so characteristic of the East at the present. The agent takes stock or money of his princ.i.p.al, signs for it, agrees to pay so much profit, and goes off to seek a market, making what profit he can. There is much to suggest that the merchant was not usually a Babylonian. In later times, the Arameans were the chief merchants, and travelled all over Mesopotamia, Palestine, Syria, and into Asia Minor.

V. Judges, Law-Courts, And Legal Processes

(M228) Partly because specific references to judges and legal processes are not necessarily to be expected in historical inscriptions, and partly because we do not really know which are the earliest monuments of the race, it is impossible to decide when law-courts first came into existence. It is generally admitted, however, that the stele of Manistusu is one of the earliest known monuments. There we read of Galzu, a judge.

There also we find many of the officials, who later acted as judges upon occasion. Hence it may fairly be said that judges were to be found in ancient Babylonia from time immemorial. They must have decided what was right when there was no written law to which to appeal. With the judges were a.s.sociated as a.s.sessors the elders of the city. This was so marked a feature, that in some cases we read, that after hearing the complaint the judge "a.s.sembled the city" to hear the case. In Babylonia the maxim, _littera scripta manet_, was so well understood that hardly anything of importance was done without committing it to writing. Hence we are as well informed about domestic affairs in Babylonia as about those of Europe in the Middle Ages.

(M229) It seems best to consider legal usages first, because they are essential to the understanding of all others. When we have a simple contract between two parties we do not at once see where the reference to the law comes in. But the contract was not valid unless sealed and witnessed. The sealing was accompanied by an oath. The oath probably had to be made in court. The witnesses seem often to have been a body of men who could only be found at the court. Even when there is least trace of the law and the judge, the case is similar to others where the judge appears explicitly. It is also worthy of remark that, partly owing to our possession of the Code and partly owing to the fuller nature of the legal decisions, we know far more of this subject, as of many others, in the early periods than in the later. Hence the discussion of early legal usage is unusually full. When the evidence from later times merely supports this, it will not be noticed. Only divergences are worthy of record. As a rule, the procedure changes very little for many centuries.

(M230) 1. *Judges.* The references to judges are less numerous than one would expect in the Code. But it seems probable that the sentences there laid down had to be p.r.o.nounced by the judge, if not carried out by him. We are, however, still in complete ignorance as to the machinery of police administration. We may argue from a.n.a.logy in other countries and ages, but this is not a theoretical treatise on comparative sociology. We must content ourselves with direct evidence.

(M231) Some sections deal explicitly with the duties of a judge. Thus,(80) if a judge had given a judgment, decided the case, and embodied it in a legal decision, he was subjected to severe penalties for afterwards revoking his decision. If he had inflicted a penalty, he had now to repay it twelvefold to him from whom it was exacted. Further he was to be publicly deposed from his office, expelled from his seat of judgment, _kussu daianutiu_, and no longer be permitted to sit with the judges. It is, of course, a.s.sumed that when he was called to account he could not justify his former judgment, or else could not justify the change. But, as the law reads, it seems simply calculated to render a judgment, once p.r.o.nounced, irrevocable,-at any rate, for that judge. Probably its revocation, in the case of injustice, was provided for by the right of appeal.

He had to consider the words of the witnesses, _amatiunu amaru_, literally, "to see their words," perhaps implying that the depositions were written, but there are instances where _amaru_ simply means "to consider."(81)

In a criminal case, where a man had to produce witnesses to save his life from a death-sentence, the judge might grant him six months' grace in which to produce his witnesses.(82) In later times we have many examples of such a stay of process that evidence might be produced.(83)

(M232) Special directions are also given to a judge as to his procedure, when a father was minded to disinherit his son; or, when a widow with a young family wished to marry again.(84) A slanderer was summoned before the judge,(85) a son could not be cut off without referring the case to a judge,(86) the children who wished to turn their widowed mother out of her house had to appear before a judge.(87)

(M233) For the most part judges const.i.tuted a distinct profession, but it must not be understood that they had no other means of livelihood. Indeed, there is no hint anywhere that they received any remuneration for their services. But it was a high honor and by no means subsidiary to another office. Among those who officiated as judges we find most of the higher officials. Doubtless the king himself acted as judge on occasions, and probably no great official of the realm was wholly free from the call to act in a judicial capacity. But, as a rule, the judge is simply noted as "judge." That the priests were judges is quite unproved. The judges were men of great importance and high rank, but there is nothing to show that they were priests. An age qualification is more likely.

(M234) The judge was a professional man. We often find a man, bearing the t.i.tle "judge," acting as party to a suit, or witness to a deed, when he is certainly not acting in his judicial capacity. To a certain extent he was a territorial officer, had his own district for jurisdiction, and was jealous of cases being taken elsewhere. How the ranks of the judges were filled we do not know, but there is a hint of royal appointment in the phrase, "the king's judges." On the other hand, there is clear evidence of the office being hereditary. Thus, Ibik-Anunitum had no less than three sons, Idin-Ishtar, Marduk-mushallim, and Nannar-idinnam, all judges.

Whether a right to the office descended in the female line is not quite clear, but we find a lady, Ishtar-ummu, among the judges, on occasion. She was also the scribe.(88)

(M235) Though many high officials acted as judges, and so doing are named before the simple "judge," there is no evidence of the existence of any "chief judge." The order of names appears to be that of seniority alone.

This may be due to the nature of our doc.u.ments. The phrase-books name a "chief judge" for Sumerian times. In the later a.s.syrian period the chief-justice was called _sartenu_, evidently because he fixed the _sartu_, or fine, on the condemned party. Then also many high officials acted as judges.(89)

(M236) 2. *Scribes.*-The scribe exercised his craft as a profession. One often meets with a scribe, _tuparru_, acting in a private capacity, as party to a suit, or as witness. He retains the t.i.tle even when the deed is drawn up by another writer. The cla.s.s was very numerous. Almost every doc.u.ment is drawn up by a fresh scribe, so far as the scribe's name is recorded, for he often omits his t.i.tle. Generally he is the last of the witnesses, but not always so.

(M237) He wrote the whole of the doc.u.ment, including the names of the witnesses. There is no evidence that anyone else ever wrote a word on the doc.u.ment. As a rule, even when the names of the fathers of the witnesses are given, the scribe is content to write only his t.i.tle after his name.

Hence we have no evidence whether the office was hereditary or not.