Chapter 10

Kasha-Upi bought a house of Itti-itishu and his sons, Bêlshunu and Ilushu-bânî. Amêl-Ninshuna, son of Bêlshunu, 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-mâtim 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 Azalîa about the property of Izidaria deceased. Their title is confirmed. Zabum 12.(201)

Shamash-bêl-ili sues Nidnusha concerning a house bought by him of her. The judges grant him two shekels of silver. Ḥammurabi 1.(202)

Shî-lamazi sues her brothers for a field and wins her case.(203)

Before Lushtamar, _nâgiru_ 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. Ḥammurabi 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 Eṭiru, sued the sons of Shamash-nâṣir 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, _bît abišu_, and denied that he had ever alienated it. The sons of Ibni-Adadi, now in possession, produced the deed of sale, _duppu šimâti_, which Eṭiru and Sin-nâdin-shûmi, his brother, had executed to Shamash-nâṣir 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)

Mâr-Martu bought the garden of Sin-mâgir. Ilubânî disputed the legality, _ṣimdattu_, of the sale. Before the judges at the gate of Nin-marki he deposed that he was the adopted son of Sin-mâgir, which adoption had never been revoked. In the time of Rim-Sin the house and garden had been awarded to Ilubânî and then Sin-mubaliṭ had brought a suit against Ilubânî, which was regularly heard before judges and witnesses from Nin-marki. They had awarded the house and garden to Ilubânî. Sin-mubaliṭ was now bound over to dispute the title no more. Ḥammurabi.(206)

Here it seems that on the deposition of Rim-Sin by Ḥammurabi, Sin-mubaliṭ, excluded by his bond from disputing Ilubânî’s title, sold his claim to Mâr-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, Iashuḫatum, 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, Iashuḫatum and their descendants. Samsu-iluna 2.(207)

It seems that, after the death of Namiatum, Iashuḫatum 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.

Amêl-Ninsaḫ sues Garudu for the rent of a field. The debtor not paying was ejected. Apil-Sin.(208)

Shûmi-erṣitim sues for right to a sheep and some corn, the _naptánu_ of a god. Judges grant him half share. Ḥammurabi 9.(209)

Judges summon Ibik-iltum before Elali-bânî to account for corn. He purges himself on oath. N. D.(210)

Amat-Shamash claims to be the adopted daughter of Shamash-gâmil and his wife Ummi-Araḫtum. Her witnesses proving unsatisfactory, her claim was disallowed on the oath of Ummi-Araḫtum that they had never adopted her. Ḥammurabi (?).(211)

Ilushu-abushu hired a pack-ass, _imer bilti_, of Ardi-Sin and Ṣilli-Ishtar and lost it. The judges awarded them sixteen shekels of silver as compensation. Apil-Sin 5.(212)

Babilîtum sued Erish-Saggil, Ubar-Nabium, and Marduk-nâṣir for a share of her family possessions, _bît abiša_. 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)

Mâr-erṣitim left a female slave Damiḳtum 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 Mâr-erṣitim, had granted Damiḳtum to Mazabatum and Ibni-Shamash. The judges return Damiḳtum to Mazabatum. Ḥammurabi (?).(215)

(M294) In Assyrian times we have comparatively few legal decisions. The judges who appear are the _sartênu_, or chief-justice; the _ḫazânu_, the chief civil magistrate of a city, the parallel of the ancient _rabiânu_; the _sukallu_, or chamberlain; and one or two others, besides the simple _daiânu_, 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 emêdu_; or to lay the penalty upon one, _sartu eli A emêdu_. 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 Nabû-zêr-kênish-lîshir, the deputy _ḫazânu_ of Nineveh. Restitution, bull for bull, was imposed on the defendant, who meantime was held for the fine. “On the day that he shall have made good the value of the bull he shall go free.” Dated the 12th of Elul. Eponymy of Mushallim-Ashur. Twelve witnesses.

Again:(217) A stole four slaves of B, who summoned him before the _sukallu_. The judge laid on him a fine of two hundred and ten minas of copper. B then deposited a pledge with A, either himself, or a slave, to perform work equivalent to the amount of the debt. If B, or any representative of his, pays the money, the pledge is void. “Whoever shall withdraw from this agreement, Ashur and Shamash shall be his judges, he shall pay ten minas of silver and ten minas of gold, he shall pay it in the treasury of Bêlit.” Dated the 10th of Adar, B.C. 678. Eleven witnesses.

Here is another case, relating to a breach of trust:(218)

(M295)

The decision of the chief-justice, which he laid on Ḥanî. Three hundred sheep, with their belongings, property of the king’s son were lost, or killed by the shepherds. Each shepherd was condemned to pay two talents of bronze as his fine. Ḥanî, and his people, and his fields, were taken as security for the payment for the three hundred sheep, and the fines due from the shepherds. “Whoever shall demand him, his _šaknu_, his _rab kiṣir_, or any representative of his, shall pay for three hundred sheep and the fines for the shepherds and then Ḥanî shall be released.” Dated 27th of Sebat, B.C. 679. Four witnesses.

The defendant had been intrusted with three hundred sheep, which he had to return in full, with a proper increase of lambs. But, evidently in the disorders which arose on the death of Sennacherib, Ḥanî had lost or made away with them. If he had intrusted them to shepherds, either the shepherds had killed them, or, as some take it, Ḥanî had killed the shepherds. In the former case he owed two talents of bronze as fine from each shepherd, in the latter he had to pay the same amount for each. Either way, he was held responsible for the value of three hundred sheep and two talents of bronze for each shepherd. He and all he had were seized for the liability. It is interesting to note that his district governor, or the colonel of the regiment to which he belonged, was thought likely to liberate him; but some other representative might do so. The lost property belonged to the king’s son. This may have been Esarhaddon, or one of Sennacherib’s other sons. But, at any rate, it is clear that Esarhaddon was putting his household in order.

(M296) The other examples known to us do not add to our legal knowledge. The subjects are chiefly misappropriations of property and there is little variety.

(M297) The later Babylonian tablets throw some light upon legal procedure in Babylon. The greater detail exhibited by them is due largely to the fact that for this period we have so many private documents. The greater portion of the material for this part of the subject has been worked over by Professor J. Kohler and Dr. F. E. Peiser, in their valuable treatise _Aus Babylonische Rechtsleben_. Little can be added beyond additional examples and illustration.

(M298) The judges acted as a college and not separately. There might be present at a case a chief judge and several judges assisting. Other cases were decided before a single judge. The _šibûtu_ continue to act as a jury. They were the elders of the city, competent to decide the rights of the case. But the exact form of the organization is not yet quite clear.

The process began with the charge. The plaintiff preferred this himself, or by a messenger. His plea was heard and his proofs considered. Then the court caused the accused to come before them and answer the charge.

(M299) The process admitted of a third person intervening. Thus, A had pledged a plot of land to B for thirty-two shekels. Then he sold the property to C. C, dying, left the property to D, who wished to take possession from B, who continued to hold it in pledge. B goes to the judges and complains against D. A, being yet alive, intervenes and probably has to pay B. But the tablet being defective, we are not able to follow the case further. Only we see the sort of right which each had.

(M300) Another case is where two parties dispute as to the possession of a sum which is actually in the hands of a banker. The banker accordingly undertakes to produce the sum and its interest in court, and to pay it over to the successful party in the suit. The decision was written down and the notary of the court gave a copy to the plaintiff, if not also to the defendant, and kept one copy for the archives. The plaintiff thus obtained a guarantee against the defendant. But how it was enforced we have no evidence.

(M301) The kind of points in dispute and decided are, as before, exceedingly varied. The decisions for the most part illustrate other subjects rather than the processes in court; but a few examples may be of interest: A made an advance of forty-four shekels to B, who pledged a house for it. This state of affairs continued until both were dead. Their sons inherited. A’s son demanded forty-four shekels of B’s son who refused to pay. Both came before the judges. B’s son, pleaded that the money was never loaned or else repaid long ago. The judges demanded evidence. Either the contract or a receipt must be produced. The claimant was able to present the contract, but no receipt was produced. So the judges assigned the claimant a plot of land belonging to the defendant as satisfaction for the proved debt. Here we have the tablet witnessed by the chief judge, the judges, and the notary.(219) What is curious is that the claimant was not content to keep the pledge. But it is probable that the debt was secured on a house which the creditor did not take into his possession. It is also surprising that the judges did not order the house to be handed over to the claimant. That may have been avoided, because of the family rights over the house. The debtor might thus have been rendered houseless, or have lost “his father’s house.” The widow may still have been an inmate. A great part of the document is taken up with the specification of the land handed over to the claimant. Hence a complete translation is not given.

(M302) A common type of case was a vindication of right to some sort of property. Thus(220) A had sold B a slave, but C came forward and said: “He is my slave who fled from me,” and took an oath by Bêl and Nabû, that he knew where that slave was living with A. The judges decide that C shall go where the slave is, and when he has proved that he is with A, the slave shall return to C.

(M303) We have an acknowledgment before the court and a promise to pay the debt. This promise was usually made on oath, or guarantees were given. Here is an involved case. A is father of B’s mother. B’s father is long dead. The property of A, his grandfather, has now come into B’s hands. He finds an old bond for an advance from A to C and D. The latter D is also dead but had a son E, who inherited. Hence B now sues C and E for the money. The bond is shown to C, who remembers and acknowledges the debt and he now undertakes to bring his fellow-debtor E and discharge the debt.

(M304) Men did not always stand their trial, but sometimes settled the case by an agreement out of court.(221) A and his wife sued B for some slaves, people of their house. B dreads the trial and does not appear. The wife was B’s mother, evidently remarried. B brings the slaves whom he still has and offers four minas as payment for one who has died in his house. The offer is accepted and parties agree to be quit.

(M305) The decision of a dispute was not always referred to professional judges. A very interesting example occurs,(222) when the eldest member of the family and _kinatti aplišu_, “the family of his son,” act as judges. The plaintiff is an old lady, who had been married, and had a daughter married. These facts are not rehearsed in the tablet itself, which concerns a division of property, but are collected from a number of tablets, spread over some sixty years. The way in which information is thus collected is an instructive example of the manner in which the different documents illustrate and explain one another.(223)

(M306) Connected with legal decisions are the undertakings to appear before the court, of which we have several examples. Thus,(224) A undertakes to bring B to Babylon and answer the complaint of C. Or again, a certain gardener spoke to A before an official of the _mâr banûtu_. This official was subpœnaed, as we should say, and swore by Bêl, Nabû, and Darius, that on the 8th of Sebat, two days hence, he would come and take up the case.(225)

(M307) The production of witnesses is the subject of not a few undertakings. Thus,(226) by a fixed date, five days hence, A shall bring B to be questioned about some asses belonging to the royal household. Again,(227) N swears to come, six days hence, and bring another, on account of the witness about A. He further undertakes to establish the partnership. What was the exact cause of quarrel was not stated. These agreements to abide by the testimony of a named witness may have been entered into without reference to judges, but the oath may have been administered before the court. Thus,(228) two parties agree to waive their dispute and abide by witness produced. This they do before the _atû_ official of the gate of the temple. Again,(229) A is to bring witnesses on the second of Ab, to the door of the _tikkalu’s_ house, and prove when and to whom he gave certain garments. If this be proved, that B had received them, B will restore the said garments to A; if not, B is free. Further, if B does not appear on that day, he shall be bound to restore the garments. Several other examples illustrate the point.(230)

(M308) A common method was, as has already been shown, to produce the bond or other document, establishing the claim. If, for some reason, the document was not producible, the oath of the scribe who wrote it might be admitted.(231) The witnesses whose names appear on the document do not seem to have been summoned. But in one case,(232) when two Persians had sold two slave-girls, also Persians, to a Babylonian; a third Persian, who had been witness to the sale, was called on to swear, “I know that the money was paid,” and he sealed the document.

VII. Public Rights

(M309) The early inhabitants of Babylonia are usually regarded as a non-Semitic race, whom we term Sumerians. Upon them was superimposed a layer of Semitic peoples. The first dynasty of Babylon is now often called Arabian. But the evidence of a previous admixture of peoples is not lacking. The subsequent history bears witness to many invasions by Kassites, Elamites, and nomad tribes, some Semitic, some probably not. Later came Persians and Medes, not to speak of Greeks and Parthians.

(M310) The foreign wars brought slaves from all the surrounding countries, even as far away as Egypt. We cannot here enter into any discussion of the foreign elements in the population; but it is important to note what the attitude of the Babylonians was to the foreigners resident in their midst. The evidence on the whole is very slight. It may be said, that as a rule, resident aliens became citizens and were under no disabilities. One section of the Code, if we correctly understand it, allows an alien to purchase an estate, provided he bears the liabilities to the state(233) which lay upon it. The “merchant” was probably usually an alien, and only temporarily resident. In the contracts of the Ḥammurabi period, with the exception of the frequent West-Semitic names, we have little trace of aliens. When the Kassites came we may expect the conquering race to have had full rights. In Assyria there is no trace of disability. Egyptians, Elamites, Armenians, Jews, Arameans, contract exactly like natives. In later Babylonian times we find the same freedom. Of course Persians, and, later, Greeks, were under no disabilities. Hence there is very little at any time to chronicle under this head.

We have marriages between Persians and Egyptians, with witnesses, Babylonian, Persian, Aramean, and Egyptian.(234) Medes rent a Babylonian’s house, and live there.(235) A Persian buys of a Babylonian.(236) A Persian father gives Babylonian names to his children.(237) A vivid picture of the mixed nationality in the time of Artaxerxes II. is given in the “Business Documents of Murashû Sons,” and the list of proper names attached to Professor Hilprecht’s edition sufficiently illustrates the point.

(M311) Ownership of land carried its liabilities of tax or service. These were carefully guarded and it was the mark of an oppressor to exceed the normal demand. That, however, seems to have been regularly and continually paid. A very good illustration of public rights over land, or the relation between the state and the private owner, is afforded by the construction, in the reign of Cyrus, of a canal of Shamash by the priest of Sippara. It was to pass through certain lands and the consent of the owners had to be obtained. The magistrates and honorables of the city A, through which it would pass, and the peoples of the neighboring fields were assembled. They were asked to swear, as Susians, subjects of the King of Susa, that they would raise no difficulty. Then the priest took on himself the cost of the work on the canal, but stipulated that when it was completed, the neighbors should keep it in repair. Also he forbade the construction of any rival canal.(238) Riparians were responsible for the care of the canal as shown in the Code.(239)

(M312) The state undertook some duties. In the Code we note that the palace would, failing other means, redeem an official from captivity.(240)

(M313) There were certain local liabilities of a public nature. Thus the Code shows that the magistrate and his district were held responsible for highway robbery or brigandage in their midst.(241) It may be assumed that the funds to meet such liabilities were furnished by the city temple, for we note that if an official were captured, and his private means were not sufficient for his ransom, his city temple had to furnish the money.(242)

(M314) The whole question of taxation is full of difficulties. There were certain persons who paid tribute, that is, some proportionate part of their produce, others did personal service. There is frequent mention of dues of various sorts, at ferries, market-places and the like. Demands were made on the stock or crops of the farmers. But we are not yet in a position even to sketch the system of taxation.

VIII. Criminal Law

(M315) Cases concerned with criminal law were naturally not embodied in contracts. Some cases doubtless may be inferred from the legal decisions, but these are only where the penalty had already been commuted from death or punishment to payment or restitution. They are better taken as examples of civil law. But this distinction is not the cause of their rarity or absence. When a man had to be put to death, scourged, or exiled, there was no need for a written bond. Hence the only references which we have outside the Code and the phrase-books, are the penalties set down in marriage-contracts for conjugal infidelity, or for breach of contract voluntarily agreed to by the parties to it.

(M316) We have one case from Assyrian times of the assignment of a slave-girl, as composition for manslaughter. Atarkâmu, a scribe, had caused the death of Samaku, whose son Shamash-ukîn-aḫi had the right to exact vengeance. Whether as the result of a legal decision or not, Atarkâmu hands over a slave-girl to Shamash-ukîn-aḫi and they agree to be at peace. The name of Ashurbânipal occurs in a position which strongly suggests that the king himself sat in judgment upon the case. The tablet is so fragmentary that little else can be made out, but it seems to have been stipulated that the slave should be handed over “at the grave.”(243)

(M317) In later Babylonian times we have a reference to imprisonment arising out of a case of guarantee.(244) The priest of Shamash at Sippara had put A in prison in fetters; B, a fellow-official of his of the same standing, bails him out, giving guarantee to the priests and _šibûtu_ that A shall not go away, or if he does, that B will do his work.

(M318) A case of assault and forcible entry into a house occurs.(245) But the tablet is so defective that we cannot make out the rights of the case. The superintendent of the city Shaḫrin, in the eighth year of Cyrus complained to the priest of Shamash at Sippara, to the following effect: He had taken into his house, as a prisoner, a certain man A. He pleads that he is uncle to the priest and chief magistrate of the city. Why then has the priest raised his hand over him? Further, seven men, who are armed, have burst in his door and entered his house and taken a mina of gold. Whether this was a rescue by relatives of the prisoner, or by order of the priest, does not appear. As a result of this complaint, the elders of the city were assembled and depositions made. Beyond the plea on the part of the house-breakers that someone had paid them to break in the door, and that the prisoner A was someone’s pledge, we get no further information.

(M319) A case of procuration of desertion, forbidden by the Code(246) under pain of death, was condoned by the injured party.(247) A caused a maid of B’s to leave her master’s house. B received her back, pardoned A, and took no money of him.