Chapter 4

(M37) A number of extracts from the legal documents of the third period have been given by Father V. Scheil in the _Receuil __ de Travaux_.(44) The full text is rarely given and there is consequently nothing for use here. They come from Nippur and are at Constantinople. The Semitic language is used largely, but a few Sumerian phrases remain. All the names of persons except those of the kings are pure Babylonian. The determinative of personality before proper names is common, but not before a king’s name. The tablets are dated by regnal years, no longer by year-names. The kings have a determinative of divinity before their names. The money in use is either gold or bronze, silver is hardly named, while in other epochs it is almost always used. Gold was now legal tender, as silver was afterwards.

The many extremely fine charters of this period are of great value for the questions concerning land tenure. Descriptions and figures of some of them will be found in the Guide.(45) The text of several was published by Dr. C. W. Belser,(46) under the title _Babylonische Kudurru-inschriften_. Some of these are transliterated and translated in Schrader’s _Keilschriftliche Bibliothek_,(47) where references to the literature will be found. In many cases these charters or boundary-stones are the only monumental evidence for their period. They therefore figure largely in the histories.

Some of the best examples are found in the second volume of the _Mémoires de la Délégation en Perse_, beautifully reproduced by photogravure, admirably transliterated and translated by Professor V. Scheil. Some fine examples are also to be found in _Cuneiform Texts from Babylonian Tablets, etc., in the British Museum_.(48)

Of the time of Marduk-shum-iddin, B.C. 853-833, we have a black boundary-stone, published by Dr. F. E. Peiser, in _Keilschriftliche Acten-stücke_, No. 1. It is dated in the twenty-eighth year of the reign of Nabû-aplu-iddina, _circa_ B.C. 858, and the eleventh year of Marduk-shum-iddina, _circa_ B.C. 842. It rehearses the contents of two or more deeds by which a certain Kidinu came into possession of property in the city of Dilbat.

(M38) The Cappadocian tablets are still somewhat of a problem. The first notice of them was given by Dr. T. G. Pinches.(49) According to the dealer’s account one acquired by the British Museum had come from Cappadocia. The script was then quite unfamiliar and it was thought that they were written in a language neither Semitic nor Akkadian. Various attempts, which are best forgotten, were made to transcribe and translate them under complete misapprehension of the readings of the characters. But in 1891 Golénischeff published twenty-four tablets of the same stamp, which he had acquired at Kaisarieh. His copies were splendidly done for one who could make out very little meaning. But he showed that many words were Assyrian and read many names. Professor Delitzsch(50) made a most valuable study of them, and laid the foundation for their thorough understanding. Professor P. Jensen(51) added greatly to our knowledge of their reading and interpretation. Dr. F. E. Peiser then(52) gave a transcription and translation of nine texts of contracts.

They are now recognized to be purely Semitic. They must have been written in some place where Assyrian influence was all-powerful. There are many names compounded of Ashur. They are dated by eponyms as in Assyria. The discovery of many more of them at Boghaz Keui, Kara Eyuk, and elsewhere published by Professor V. Scheil in the _Mémoires de la Mission en Cappadoce par Ernest Chantre_, and commented on by M. Boissier,(53) make it certain that they are from this region.

If subject to Assyria, their date may be before the earliest eponyms whose date is known from the Canon lists. They may be contemporary with the very earliest kings of Assyria. But it is not impossible that the eponyms referred to were local only and not Assyrian in origin. Dr. Peiser put them after the First Dynasty of Babylon, but before the Third Dynasty.

They are full of unusual forms of words and have a phraseology of their own. They cannot as yet be translated with any confidence. In general they are very similar to the contracts, money-loans, and letters of the First Dynasty of Babylon. As far as they can be understood, they offer no new features of interest. The obscure phrases and words give rise to many speculations which will be found in the above-mentioned works. These are of great interest, but need further data for elucidation. They are too questionable to be profitably embodied here.

(M39) The Elamite contract-tablets were found at Susa and are published by Professor V. Scheil in Tome IV. of the _Mémoires de la Délégation en Perse_.(54)

In external form they closely resemble the Babylonian documents of a similar nature. They are drawn up in practically the same way. But there is a blunt directness about them which recalls the usages of the First Dynasty of Babylon, rather than Assyria, or the Second Babylonian Empire. Hence we have little to indicate date. Until we are better acquainted with the Elamite script at various periods we cannot hope to date them.

They have many peculiar words and phrases. Some may be Elamite, or that form of Semitic which obtained in Elam, but the rest of the language is ordinary Babylonian. It is possible that some characters had a value in Elam not known in Babylonia, or ideographic values not yet recognized. But, as a rule, the general sense is fairly clear.

(M40) The legal documents of Assyria are in many respects a separate group. They are sometimes said to have come from the library of Ashurbânipal, which Mr. H. Rassam claims to have discovered at Kouyunjik in 1852-54. But it seems far more probable that, as large numbers were already found by Layard in 1849-51, we have rather to do with the contents of some archives. The absence of any large number of temple-accounts seems to exclude the probability that they were connected with a temple; but the fact that nearly every tablet has for one principal party some officer of the king, lends great probability to the view that the transactions were really made on behalf of the king; or—to be more exact—of the palace in Nineveh. The exceptions may be accounted for as really deeds concerned with former sales; or mortgages of property, finally bought in for the king. The conjecture is raised to a moral certainty by the contents of such a collection as Knudtzon’s _Gebete an den Sonnengott_, found together with them; which consisted of copies of the requests and inquiries made of the Sun-god oracle regarding the troubles and difficulties of the king and royal family, domestic as well as public, in the reigns of Esarhaddon and Ashurbânipal. The letters too, found in the same collection, are the letters received by the king from his officers in all parts of his realm. The lists are connected with expenses of his household. Such votive tablets as are preserved are concerned with offerings of the royal family, or such high officers as probably were permanent inmates of the palace. We have, in fact, the contents of the muniment chests of the Sargonid kings of Assyria. That the royal library was mixed up with these documents may be due to the contents of an upper chamber falling, when its floor was burnt out; but the mixing may have been done by the discoverers.

In a very real sense these come from a record office, but are confined to royal rather than state documents; though a few duplicates of charters occur. Hence we look in vain for many classes of documents, such as are common in the archives of temples or private families. We have no marriage settlements, no adoptions, no partnerships.

Can we believe that such transactions were less common in Nineveh than fifteen centuries before in Sippara, or Larsa, or Babylon; or later in Babylon, Sippara, or Nippur? There cannot be a shadow of doubt that such documents exist in shoals somewhere in the ruins of Nineveh and will one day be found. Hence we must regard it as extremely improbable that the ordinary citizens of Nineveh contributed the records of their transactions to the Kouyunjik Collections now in the British Museum. They either kept them in their own houses or in some temple archives. As will be seen later, a few have already been found; but it is extremely difficult to locate them exactly. It is quite certain that a few of the tablets in the British Museum were found at other localities, such as Sherif Khan, Ashur, Kalah, Erech, Larsa, and Babylon.

For the most part these appear to have been placed in one collection by the discoverers, and only internal evidence can now decide where they were found. But the great bulk of the Kouyunjik Collections, as far as contracts, legal documents, and kindred tablets are concerned, are the result of explorations conducted on the site of the ancient Nineveh, by Layard and Rassam. They probably came from palace archives, and as a result possess a special character of their own.

(M41) Aramaic dockets very early attracted the attention of Assyriologists. The presence of short inscriptions in Aramaic on a few contract-tablets naturally raised hopes, in the early days of decipherment, of finding some check upon the reading of cuneiform. So far as these went they were by no means inconsistent with the readings of the cuneiform. But they were too few, too disconnected, and in themselves too uncertain, to be of great value. Indeed, for many of them, it is the cuneiform that now gives the key to their possible sense. The whole of these Aramaic inscriptions have now been published by Dr. J. H. Stevenson in his _Assyrian and Babylonian Contracts with Aramaic Reference Notes_, where references to the literature will be found.

(M42) In connection with these Aramaic legends a number of the texts of Assyrian contracts were published in the _Corpus Inscriptionum Semiticarum_, _Pars Secunda_, _Tomus I_. A number more were published in Vol. III. of the _Cuneiform Inscriptions of Western Asia_, by Sir H. C. Rawlinson. A few others were published in various journals; and by Oppert in his epoch-making treatise on the juristic literature, _Documents Juridiques_; by Peiser, in Vol. IV. of Schrader’s _Keilinschriftliche Bibliothek_; and by Strassmaier in his _Alphabetisches Verzeichnis_. The whole of the texts of the Assyrian contracts from the Kouyunjik Collections in the British Museum are now published in _Assyrian Deeds and Documents recording the Transfer of Property, etc._ (three volumes published).(55) A bibliography will be found there, on page ix of the preface to Vol. I.

(M43) The very remarkable style which most of these tablets show is so unlike the contemporary documents in Babylonia that we may expect that transactions between private citizens in Assyria at this time were quite different. A few such documents exist. Professor V. Scheil, in the _Receuil de Travaux_,(56) published the text of four which are quite unlike any of the Kouyunjik examples.

(M44) In _Assyrian Deeds and Documents_ the same plan of arrangement was followed, to some extent, as in this work. Being all of one epoch and showing no signs of any development the tablets were grouped, provisionally, according to subjects. The arrangement in each group was to place first the best specimens of the group and then the injured and fragmentary specimens, which thus received illustration, and in some cases, could be restored. It would, however, be an error to regard the Assyrian documents as the intermediate link between the old and new Babylonian documents, though they belong chronologically to an interval which precedes the latter immediately. The Assyrian scribe used a formula that was closer to the Old Babylonian than to the contemporary Babylonian. It had an independent development, looking rather to the royal charters as models than to the private document. In fact, the closest parallels of all are to be found on the Babylonian boundary-stones and charters. When, therefore, in our chronologically arranged sketch of a given subject, reference is made to Assyrian usage, next to that of the First Dynasty of Babylon, it will be understood that only the nature of the transaction is akin; and that, as a rule, the verbal treatment of it is quite distinct.

(M45) A few contemporary documents have reached us from the cities of Babylonia. They have little or no affinity with the immediately preceding groups, but carry on the local development from the second epoch. They come from many sites and are published in a variety of journals. A tentative list of them will be found in the Appendix. They refer to transactions in the reigns of Shalmaneser IV., Sargon II., Merodach-baladan II., Sennacherib, Esarhaddon, Shamash-shum-ukin, Kandalanu, Ashur-etil-ilâni, and Sin-shar-ishkun. In style they belong to the next epoch.

(M46) The second Babylonian empire, commencing with Nabopolassar and extending to the end of the independent existence of a Babylonian empire, is represented by thousands of tablets in our museums. A small part of these has been published. Pater J. N. Strassmaier has given some one thousand six hundred in his _Babylonische Texte_. Dr. Peiser published many more in his _Keilinschriftliche Acten-stücke and Babylonische Verträge_. The Rev. B. T. A. Evetts, Dr. Moldenke, Dr. Pinches and others have published many more. A detailed list will be found in the Appendix.

(M47) In the times of the Persian kings very many documents were drawn up very similar to these. The series is quite unbroken, down through Macedonian rule, the Arsacid period, to as late as B.C. 82. The list will be found in the Appendix.

Of the whole period we may say that the variety and quantity of written evidence are amazing. Every sort of transaction that could be made the subject of a deed or memorandum was written down. They come from most of the chief cities in Babylonia.

(M48) The classification of this material is no easy task. As in the case of the Bibliography, so here, the first and apparently the only attempt has been made by Dr. C. Bezold in his invaluable _Kurzgefasster Überblick_.

The view taken there depended upon Professor Oppert’s estimate of the nature of the documents and that again was often founded on imperfect copies of the text. A great advance has since been made in understanding the contents of the texts then published, and the number published has enormously increased.

The publications, where accompanied by translations, have generally given some classification. Dr. Peiser, in the fourth volume of Schrader’s _Keilinschriftliche Bibliothek_, gives most suggestive indexes.(57) Dr. Tallqvist, in his _Sprache der Contrakte Nabunâ’id’s_ gives a very valuable classification.(58) Dr. Meissner classified his texts in _Altbabylonische Privatrecht_.

A number of monographs have been written collecting the different texts from many sources bearing on one subject, thus acting as a kind of classification. A complete work on the subject is still needed.

(M49) Of great importance are Dr. F. E. Peiser’s _Jurisprudentiæ Babylonicæ quæ supersunt, Cöthen_, 1890 (Inaug. Diss.); Dr. B. Meissner’s _De Servitute babylonico-assyriaca_, Leipzig, 1882 (Inaug. Diss.); and Dr. V. Marx, _Die Stellung der Frauen in Babylonien (Nebuchadnezzar to Darius __B.C.__ 604-485)_ published in the _Beiträge zur Assyriologie_, Vol. IV., pp. 1-77. These should certainly be read by any serious student of the times. To reproduce their contents would occupy too much space.

On the whole subject of social life, as illustrated by these contracts, there is a valuable study by Dr. F. E. Peiser, called _Skizze der Babylonischen Gesellschaft_.(59) Professor Sayce’s _Babylonians and Assyrians_ in the _Semitic Series_, 1900, is an excellent account, though in some respects not sufficiently critical. But in all such preliminary work it is easy to feel sure of conclusions which have to be revised with fuller knowledge. Time will doubtless show this to be true of what is said in the present work. But wherever doubt is felt by the writer, it will be indicated.

LAWS AND CONTRACTS

I. The Earliest Babylonian Laws

(M50) We are still completely in the dark as to the rise of law in Babylonia. As far back as we can trace the history or its written monuments, there is no time of which we can say, “As yet there was no law.” Our chief object to-day is to discover what the law was. For the most part, and until lately, we were compelled almost entirely to infer this from such contracts as were drawn up between parties and sworn to, witnessed, and sealed. Among them were a large number of legal decisions which recorded the ruling of some judicial functionary on points of law submitted to him. These and the hints given by the legal phrase-books had allowed us to attain considerable knowledge of what was legal and right in ancient Babylonia or Assyria.

(M51) But the question remained, Was it “right” or “law”? Were there enactments by authority, making clear what was right, and in some cases creating right, where there was none before? There was much to suggest the existence of enacted law, even of a code of laws, and the word “law” had been freely applied. But there was no known ascription of any law to a definite legislator. There was no word for “law,” only the terms “judgments,” “right,” and “wrong.” It was significant that the parties to a suit always seemed to have agreed on what was right between man and man, and then to have sworn by their gods to observe the “right.”

(M52) We definitely know of one great code of laws, that of Ḥammurabi, and we are greatly strengthened in the view that there were laws, and even codes, centuries before him. The way in which contracts quote the phrases of his code is exactly parallel to the way in which far earlier contracts quote phrases which are evidently extracts, in the phrase-books, from some connected work. Hence we are warranted in thinking that these extracts come from a Sumerian code of laws. We do not yet know to whom we should ascribe its compilation.

(M53) For the Code of Ḥammurabi is also a compilation. He did not invent his laws. Phrases found in them appear in contracts before his time. Doubtless he did enact some fresh laws. But he built for the most part on other men’s foundations. The decisions already passed by the judges had made men ready to accept as “right” what was now made “law.” But the question is only carried back a stage further. Did not those judges decide according to law? In some cases we know they did, for we have the law before them. When we try to penetrate further into the background of history we can only surmise. Documents fail us to prove whether judges first made or administered the law. But we have now a very high antiquity for laws recognized and obeyed as right.

(M54) That laws were already enacted in the pre-Semitic or Sumerian days we may regard as certain. The legal phrase-books drawn up by later scribes, especially those known as forming the series called _ana ittišu_, give as specimens certain laws. These were evidently given by the scribes as examples of connected prose in Sumerian, accompanied by a rendering into Semitic. Their object was primarily grammatical, or at any rate educational; but they are most valuable because they contain specimens of the Sumerian legislation. Owing to their limited scope they were at first regarded as family laws. But there can be little doubt that they really are extracts from something like a code of laws. We are as yet quite ignorant of the date of their first promulgation, place of origin, and legislator. The seventh tablet of the series _ana ittišu_, Col. III. l. 22 to Col. IV. l. 22, gives the seven following laws:

(M55)

I. If a son has said to his father, “You are not my father,” he may brand him, lay fetters upon him, and sell him.

It may be doubted whether this applies to any but adopted sons. “You shall not be my father” is a possible rendering. But the phrase may only refer to rebellious conduct. The word rendered “brand” has often been taken to mean “shave.” The cutting short of the hair was a mark of degradation. The Semitic Babylonians wore their hair long, while slaves, and perhaps also Sumerians as a race, are represented as hairless. However that may be, the same word is used of “branding” cattle and it implies cutting or incision. It may mean a tattooed mark. The word rendered “fetter” seems also to be used of a branded body-mark. The whole law means that the rebellious son is to be degraded to the status of a slave and treated as such.

(M56)

II. If a son has said to his mother, “You are not my mother,” one shall brand his forehead, drive him out of the city, and make him go out of the house.

Here the same ambiguity about branding is found. Some take the word rendered “forehead” to mean the hair of the head. His head would then be shaved. “To go out from the house” means “to be cut off from kith and kin.” But here the son retains his freedom, only he is an exile and homeless. In this case it is not the mother who exacts the penalty. The verb is plural and may be taken impersonally. The family or the city magistrates are probably the ones to execute the law.

(M57)

III. If a father has said to his son, “You are not my son,” he shall leave house and yard.

Here the father has power to repudiate a son, who must go. The word for “leave” is literally “take himself up,” “go up out of.” The word “yard” is simply “inclosure” and may mean the city walls, as a symbol of shelter.

(M58)

IV. If a mother has said to her son, “You are not my son,” he shall leave house and property.

Here we expect, by analogy with Laws I. and II., that this penalty is rather less than that in III. The “property” means “house furniture.” The son must leave home and can take no house furniture with him. He has no claim to inherit anything. But he need not leave the city. Hence it seems likely that III. denied him the right of city shelter.

(M59)

V. If a wife hates her husband and has said, “You are not my husband,” one shall throw her into the river.

(M60)

VI. If a husband has said to his wife, “You are not my wife,” he shall pay half a mina of silver.

The contrast in the penalties is startling. Note the impersonal form of V. The executioners here are the family, or city, not the husband. Publicity is therefore implied. It is not a private quarrel, but a refusal of conjugal rights. In the second case the man divorces, or puts away, his wife, but pays a heavy fine.

(M61)

VII. If a man has hired a slave and he dies, is lost, has fled, has been incapacitated, or has fallen sick, he shall measure out 10 _ḲA_ of corn _per diem_ as his wages.

Here the Sumerian text differs from the Semitic. In the former the employer is said to “cause” the slave to suffer these detriments, in the latter he is said to come by them. The verb rendered “lost” is used in that sense in the later Code of Ḥammurabi. What is the exact sense of the verb rendered “has been incapacitated” is not clear. Professor Hommel(60) renders _durchbrennen_, Delitzsch(61) renders _weichen, entweichen, oder zu arbeiten aufhören_. But it is clear that the employer is to pay a daily fine for injury done to the slave, or for loss to his owner, caused or connived at by him. The slave’s refusal to work could not be made the ground for fining him. If anyone paid for that it would be the owner. The employer pays for his work, but is bound to keep him safe and treat him reasonably well and return him in good condition to his owner. In later times the owner often took the risk of death and flight, but then he probably charged more hire. At any rate it is clear that the owner is not named in this law.