Chapter 2

While it is hoped that this volume will give a fairly complete account of what is really known and also point out some things that are reasonably conjectured to be true, it is fully recognized that much remains to be done. Indeed, it may serve by its omissions to redirect attention to openings for future fruitful work.

LIST OF ABBREVIATIONS

A. B. R. _Aus dem babylonischen Rechtsleben._ Professor J. Kohler and Dr. F. E. Peiser. Leipzig, 1890-.

A. D. B. _Assyrian Doomsday Book._ Vol. XVII of _Assyriologische Bibliothek_. Leipzig, 1901.

A. D. D. _Assyrian Deeds and Documents._ In three vols. Cambridge, 1898-.

A. J. S. L. _American Journal of Semitic Languages and Literatures._ Chicago.

A. O. F. _Altorientalische Forschungen._ Dr. H. Winckler. Leipzig, 1893-.

B. A. L. _Babylonian and Assyrian Life._ Professor A. H. Sayce. New York, 1901. (Semitic Series.)

B. A. S. _Beiträge zur Assyriologie._ Professors Delitzsch and Haupt. Leipzig, 1890-.

B. E. P. _The Babylonian Expedition of the University of Pennsylvania._ Series A. Cuneiform Texts. 1898-.

B. V. _Babylonische Verträge._ Dr. F. E. Peiser. Berlin, 1890.

C. T. _Cuneiform Texts from Babylonian Tablets, etc., in the British Museum._ London, 1896-.

D. E. P. _Délégation en Perse, Memoires._ Pub. by French Ministry of Instruction. Professor V. Scheil. 1900-.

E. B. H. _Early Babylonian History._ Dr. H. Radau. New York, 1900.

H. A. B. L. _Assyrian and Babylonian Letters._ Professor R. F. Harper. Chicago, 1892-.

H. W. B. _Assyrisches Handwörterbuch._ Professor Delitzsch. Leipzig, 1894.

I R., II R., III R., IV R., V R. _The Cuneiform Inscriptions of Western Asia._ H. C. Rawlinson. London, 1861, 1866, 1870, 1880-4.

K. A. S. _Keilinschriftliche Aktenstücke._ Dr. F. E. Peiser. Berlin, 1889.

K. B. _Keilinschriftliche Bibliothek._ Professor Eb. Schrader. Berlin, 1889-.

K. L. Ḥ. _The Letters and Inscriptions of Ḥammurabi._ Three vols. L. W. King, M.A. London, 1898-.

K. P. See A. B. R.

L. H. See K. L. Ḥ.

H. A. P. _Beiträge zum altbabylonischen Privatrecht._ Dr. Br. Meissner. Leipzig, 1893.

P. S. B. A. _Proceedings of the Society of Biblical Archæology._ London, 1872-.

_Rev. Ass._ _Revue d’Assyriologie._ Professors J. Oppert and E. Ledrain. Paris, 1884-.

Z. A. _Zeitschrift für Assyriologie._ Professor C. Bezold. Leipzig, 1886-.

Z. K. F. _Zeitschrift für Keilschriftforschung._ Professor C. Bezold. Leipzig, 1884-.

_Camb._, _Cyr._, _Dar._, _Ev. Mer._, _Nbd._, _Nbk._, _Nerig._, denote the volumes of _Babylonische Texte_; _Inschriften von Cambyses_, _Cyrus_, _Darius_, _Evil Merodach_, _Nabonidus_, _Nebuchodonosor_, _Neriglissar_, pub. by Pater J. N. Strassmaier. Leipzig, 1887-.

H denotes the text published in H. A. B. L.

K denotes a text from Kouyunjik, now in the British Museum.

S denotes a text at Constantinople, from Sippara.

V. A. Th. denotes a text in the Berlin Museum.

B, B1, B2 denote texts of the collections “from Warka,” Bu. 88-5-12, and Bu. 91-5-9.

SOURCES AND BIBLIOGRAPHY

(M1) The chief sources from which is derived our knowledge of Babylonian and Assyrian law are the contemporary inscriptions of the people themselves. These are not supplemented to any appreciable extent by the traditions of classical authors. So far as they make any references to the subject, their opinions have to be revised by the immeasurably greater knowledge that we now possess, and seem to be mostly based upon “travellers’ tales” and misapprehensions.

These inscriptions are now preserved in great numbers in European and American museums, and have only been partly published. The bibliography is very extensive. For the earlier attempts to read and explain these documents the reader may refer to Professor C. Bezold’s _Kurzgefässter Überblick über die babylonisch-assyrische Litteratur_,(6) which gives a fairly complete account up to 1887. Of course, many books and memoirs there mentioned have now only a historical interest for the story of decipherment and explanation. These, however, may be studied with the greatest profit after having first become acquainted with the more recent works.

(M2) The division which is adopted in this work, “law, contracts, and letters,” is only conventional. The three groups have much that is common and mutually supplement one another. Previous publications have often treated them more or less together, both as inscriptions and as minor sources of history. Hence it is not possible to draw up separate lists of books treating each division of the subject. Only those books or articles will be referred to which are most valuable for the student. Many of them give excellent bibliographies of their special subject.

(M3) The contemporary sources include actual codes of law, or fragments of them, legal phrase-books, and legal instruments of all sorts. From the last-mentioned source almost all that is known of ancient Babylonian law has been derived. The historical and religious inscriptions contribute very little. The consequence is that, except from the recently discovered Code of Ḥammurabi scarcely anything is known of the law in respect to crimes. Contracts and binding agreements are found in great profusion; but there is nothing to show how theft or murder was treated. Marriage-contracts tell us how adultery was punished. Agreements or legal decisions show how inheritance was assigned. Consequently our treatment of law and contracts must regard them as inseparable, except that we may place first the fragments of actual codes which exist.

(M4) The letters are much more distinct. Each is a separate study, except in so far as it can be grouped with others of the same period in attempts to disentangle the historical events to which they refer. The deductions as to life and manners are no less valuable than those made from legal documents. In both wording and subject-matter they often illustrate legal affairs and even directly treat of them.

(M5) A first duty will be carefully to distinguish epochs. Great social and political changes must have left some mark upon the institutions we are to study. As far as possible, the material has been arranged for each subject chronologically.

(M6) The longest and by far the most important ancient code hitherto discovered is that of Ḥammurabi (_circa_ 2250 B.C.). The source for this is a block of black diorite about 2.25 metres high, tapering from 1.90 to 1.65 metres in circumference. It was found by De Morgan at Susa, the ancient Persepolis, in December, 1901, and January, 1902, in fragments, which were easily rejoined. The text was published by the French Ministry of Instruction from “squeezes” by the process of photogravure, in the fourth volume of the _Mémoires de la Délégation en Perse_. It was there admirably transcribed and translated by Professor V. Scheil. In all, the monument now preserves forty-four columns with some three thousand six hundred lines. There were five columns more, which were once intentionally erased and the stone repolished, probably by the order of some monarch of Susa, who meant to put his own name and titles there. There have been found other monuments in the French explorations at Susa, where the Elamite monarch has erased the inscription of a Babylonian king and inserted his own. This method of blotting out the name of a king was a favorite device in the ancient East and is frequently protested against and cursed in the inscription set up in Babylonia. This particular inscription did not fail to call down similar imprecations, which perhaps the Elamite could not read. But he stayed his hand, and we do not even know his name, for he wrote nothing on the vacant space.

It seems probable that the stone, or at any rate its original, if it be a copy, was set up at Sippara; for the text speaks of _Êbarra šuati_, “this Ebarra,” which was the temple of Shamash at Sippara. At the head of the obverse is a very interesting picture of Ḥammurabi receiving his laws from the seated sun-god Shamash. Some seven hundred lines are devoted to the king’s titles and glory; to enumerating the gods he reverenced, and the cities over which he ruled; to invoking blessings on those who preserved his monument and respected his inscription, with the usual curses on those who did the opposite.(7) These belong to the region of history and religion and do not concern us here. We may note, however, that the king expected that anyone injured or oppressed would come to his monument and be able there to read for himself what were the rights of his case.

(M7) The whole of this inscription is not entirely new matter. The scribes of Ashurbânipal somewhere found a copy, or copies, of this inscription and made it into a series of tablets. Probably their originals were Babylonian tablets, for we know that in Babylonia the Code had been made into a series which bore the name of _Nînu ilu ṣîrum_, from the opening words of the stele. But, judging from the colophon of the Assyrian series, the scribes knew that the inscription came from a stele bearing the “image” of Ḥammurabi. A number of fragments belonging to such copies by later scribes were already published, by Dr. B. Meissner(8) and Dr. F. E. Peiser.(9) These were further commented upon by Professor Fr. Delitzsch,(10) who actually gave them the name “Code Hammurabi.” Some of these fragments enable us to restore one or two sections of the lost five columns.

These fragments are now easily set in order and will doubtless lead to the discovery of many others, the meaning of which has not yet been recognized. They exhibit some variants of interest, showing that they were not made directly from this particular monument. Even at Susa another fragment was found of a duplicate stele. Hence we may hope to recover the whole text before long.

(M8) The publication of the Code naturally excited great interest among scholars. It appeared in October, 1902, and, during the next month, Dr. H. Winckler issued a German translation of the Code under the title, _Die Gesetze Hammurabis Königs von Babylon um 2250 v. Chr. Das Älteste Gesetzbuch der Welt_, being _Heft 4_ of the fourth _Jahrgang_ of _Der alte Orient_. This marked an advance in some points on Scheil’s rendering, but is not entirely satisfactory. The present writer read a paper in October, 1902, before the Cambridge Theological Society, an abridged report of which appeared in the January _Journal_. He further published a baldly literal translation in February, 1903, entitled, _The Oldest Code of Laws in the World_.(11) In the _Journal des Savants_ for October and November, 1902, M. Dareste gave a luminous account of the subject-matter of the Code, especially valuable for its comparisons with the other most ancient law-codes. This of course was based on Scheil’s renderings. In the _Orientalistische Litteratur-Zeitung_ for January, 1903, Dr. H. Winckler, reviewing the fourth volume of the _Mémoires_, gave a useful account of the Code comparing it with some of the previously published fragments.

(M9) The comparison with the Mosaic Code was sure to attract notice, especially as Professor F. Delitzsch had called the attention of the public to it, in his lecture entitled _Babel und Bibel_, even before more of the Code was known than the fragments from Nineveh. Dr. J. Jeremias has published a small book called _Moses und Hammurabi_, in which he deals with the relations pretty thoroughly. Professor C. F. Kent has also examined them in his article entitled _The Recently Discovered Civil Code of Hammurabi_, in _The Biblical World_ for March, 1903. Some remarks on the subject are to be found in the _New York Independent_, December 11, 18, 1902, and January 8, 15, 22, 1903, accompanying a translation. All the above follow Winckler’s renderings.

The translation here given makes use of the above works, but must be regarded as independent. It is impracticable to detail and justify the changes made. The renderings can hardly be regarded as final, where actual contracts do not occur to illustrate the Code; but there is very little doubt that we know the tenor of these laws with substantial accuracy.

Professor V. Scheil divided the text of the Code into sections according to subject-matter. But there are no marks of a division on the monument and Scheil’s division is not adhered to in this work. For convenience of reference, however, his original section-numbers are given in connection with each law or sub-section of a law.

(M10) Among the treasures preserved in the library of Ashurbânipal and in the archives of the Babylonian temples were a number of tablets and fragments of tablets which recorded the efforts made by Semitic scribes to render Sumerian words and phrases into Semitic. A large number of these are concerned with legal subjects. A fairly complete list of those now in the Kouyunjik Collections of the British Museum will be found in the fifth volume of Dr. Bezold’s catalogue, page 2032. The greater part of them have been published either in the British Museum _Inscriptions of Western Asia_, in Dr. P. Haupt’s _Keilschrifttexten_, Vol. I. of the _Assyriologische Bibliothek_, or in Dr. F. Hommel’s _Sumerische Lesestücke_. In the latter will be found references to other publications. Dr. B. Meissner further published a number of later Babylonian editions of the same or allied series.(12)

(M11) The plan of the series to which most of these tablets belong is well seen in Dr. Delitzsch’s _Assyrische Lesestücke_, fourth edition, pp. 112-14. The name by which the series is usually known, to which most of these tablets belong, is the Semitic rendering of the first Sumerian phrase given there, _ana ittišu_, “to his side.” The sections into which the series is divided each deal with some simple idea and its expression in Sumerian. But the principle of arrangement is not very clear. We may take one section for example. “With him, with them, with me, with us, with thee, with you,” are given in two columns, the first being the Sumerian for these phrases, the second the Semitic rendering. Owing to the form of treatment some of these texts have been called “paradigms.”

(M12) But the scribes also gave some fairly long and connected prose extracts in Sumerian with their Semitic renderings. What these were extracted from is still a question. Some of the clauses are known to have been employed in the contracts. But some of these even may well have been extracts from a code of laws. The name of “Sumerian Family Laws” has been given to certain sections.(13) Others seem to have been extracted from a Sumerian work on agriculture, with which Hesiod’s _Works and Days_ has been compared. But at present we are not in possession of the complete works from which these extracts are taken.

Such as they are, they have a value beyond that of enabling us to read Sumerian documents. They often afford evidence of customs and information which we get nowhere else.(14) The information given by them will be utilized in the subsequent portions of this work. Their translation here would serve no purpose, since they are very disconnected, but an example may be of interest. One section reads, “He fastens the buckets, suspends the pole, and draws up the water.” This is a vivid picture of the working of a watering-machine, from which we learn its nature as we could not from its name only.(15)

(M13) Legal documents constitute by far the larger portion of the inscriptions which have come down to us from every period of Babylonian and Assyrian history. In the library of Ashurbânipal alone they are exceeded by the letters and even more by the works dealing with astrology and omens. In some periods, however, we have only a few inscriptions from monuments, or bricks.

(M14) To some extent the term “contracts,” which has commonly been applied to them, is misleading. The use of the term certainly was due to a fundamental misunderstanding, they being once considered as contracts to furnish goods. They were even thought to be promises to pay, which passed from hand to hand, like our checks, and so formed a species of “clay money.” These views were both partially true, but do not cover the whole ground.

They were binding legal agreements, sealed and witnessed. They were binding only on the parties named in them. They were drawn up by professional scribes who wrote the whole of the document, even the names of the witnesses. Hence it is inaccurate to speak of them as “signed” by anyone but the scribe, who often added his name at the end of the list of witnesses. The parties and witnesses did impress their own seals at one period, but later one seal, or two at most, served for all. It is not clear whose seal was then used. But the document usually declares it to be the seal of the party resigning possession.

(M15) As to external form, most of those which may be called “deeds” consist of small pillow-shaped, or rectangular, cakes of clay. In many cases these were enclosed in an envelope, also of clay, powdered clay being inserted to prevent the envelope adhering. Both the inner and outer parts were generally baked hard; but there are many examples where the clay was only dried in the sun. The envelope was inscribed with a duplicate of the text. Often the envelope is more liberally sealed than the inner tablet. This sealing, done with a cylinder-seal, running on an axle, was repeated so often as to render its design difficult to make out, and to add greatly to the difficulty of reading the text. When the envelope has been preserved unbroken, the interior is usually perfect, except where the envelope may have adhered to it. Such double tablets are often referred to as “case tablets.” The existence of two copies of the same deed has been of great value for decipherment. One copy often has some variant in spelling, or phrasing, or some additional piece of information, that is of great assistance. The envelope was rather fragile and in many cases has been lost, either in ancient times, or broken open by the native finders, in the hope of discovering gold or jewels within. But in any case, the envelope, so long as it lasted, was a great protection; and there are few tablets better preserved than this class of document.

In Assyrian times, few “case” tablets are preserved, they seem to have gone out of fashion except for money-loans and the like. But it may be merely an accident that so few envelopes are preserved. In the case of letters, where the same plan of enclosing the letter in an envelope was followed, hardly any envelopes have been found, because they had to be broken open to read the letter. The owner of a deed may have had occasion to do the same, but here there was less excuse, as the envelope was inscribed with the full text.

In early times, another method of sealing was adopted. A small clay cone was sealed and the seal attached to the document by a reed, which ran through both. The seal thus hung down, as in the case of many old parchment deeds in Europe.

(M16) The deeds were often preserved in private houses, usually in some room or hiding-place below ground. In the case of the tablets from Tell Sifr, which were found by Loftus _in situ_, three unbaked bricks were set in the form of a capital U. The largest tablet was laid upon this foundation and the next two in size at right angles to it. The rest were piled on these and on the bricks and the whole surrounded by reed matting. They were covered by three unbaked bricks. This accounts for their fine preservation.

Others were stored in pots made of unbaked clay. The pots, as a rule, have crumbled away, but they kept out the earth around. Sometimes this broke in and crushed the tablets. In some cases they were laid on shelves round a small room; but in others they seem to have been kept in an upper story, and so were injured, when the floor fell through.

(M17) It seems certain that as a rule all deeds were executed in duplicate, each party receiving a copy. The scribe often appears to have kept another. At one time copies were also deposited in the public archives, most probably the city temple or the governor’s palace. There are indications that copies of deeds executed in the provinces were sent to the capital. Whether this was in pursuit of a general policy of centralization or only accidental in the few cases known to us is not quite clear. In many instances we actually possess duplicates, sometimes three copies of the same deed.

(M18) These documents are exceedingly varied in contents. The most common are deeds relating to the sale or lease of houses, fields, buildings, gardens, and the like; the sale or hire of slaves and laborers; loans of money, corn, dates, wool, and the like; partnerships formed or dissolved; adoption, marriage, inheritance, or divorce. But almost any alienation, exchange, or deposit of property was made the subject of a deed. Further, all legal decisions were embodied in a document, which was sealed by the judge and given to both parties to the suit. These were often really deeds by which the parties bound themselves to accept and abide by the decisions. Some are bonds or acknowledgments of debt. A great many closely allied documents are lists of money or goods which had been given to certain persons. They were evidence of legal possession and doubtless a check on demand for repayment.

(M19) The bibliography of the subject is best dealt with under each general division; but reference must be made to works dealing with the subject as a whole. Professor J. Oppert’s _Documents Juridiques_ was the first successful attempt to deal with contracts in general and laid the foundation of all subsequent work. Dr. F. E. Peiser and Professor J. Kohler’s _Aus Babylonischen Rechtsleben_ deals with the later Babylonian documents as far as they throw light upon social life and custom. Professor Sayce’s _Babylonians and Assyrians_ makes large use of the data given by the contracts. Dr. T. G. Pinches’s _The Old Testament in the Light of the Monuments of Assyria and Babylonia_ also gives a very full account of what may be gleaned from them. The present writer’s _Assyrian Deeds and Documents_ makes an attempt to treat one branch fully. This work can only present the most essential facts. The whole amount of material is so vast, so much is yet unpublished, so many side-issues arise, all worth investigating, that it can only serve to introduce the reader to a fascinating and wide field of study.

(M20) The material with which we have to deal, for the most part, falls very naturally into epochs. The early Babylonian documents, though very numerous, are mostly of the nature of memoranda and include few letters or contracts. The documents of the First Dynasty of Babylon are extremely rich in examples of both contracts and letters. Then the Tell Amarna letters form a distinct group. The Ninevite contracts and letters of the Sargonid Dynasty are well marked as separate from the foregoing. Lastly, those of the New Babylonian Empire are a group by themselves. A few scattered examples survive which form intermediate groups, usually too small to be very characteristic, and certainly insufficient to justify or support any theory of the intermediate stages of development.

(M21) It must be observed that to a great extent these groups are not only separated by wide intervals of time—several centuries as a rule—but that they are locally distinct. The first comes from Telloh, the larger part of the second from Sippara, the third from Egypt (or Syria), the fourth from Assyria, the last from Babylonia. Whether the documents of Sippara in the third period showed as great divergence from those of the second period as the Tell Amarna letters do, or whether each group is fairly characteristic of its age in all localities using the cuneiform script, are questions which can only be answered when the other documents of that period are available for comparison.