(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 ill.u.s.trate 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 a.s.signed 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 doc.u.ment 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 apliu_, "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 rehea.r.s.ed 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 doc.u.ments ill.u.s.trate 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 subpnaed, 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 a.s.ses 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 ill.u.s.trate the point.(230)

(M308) A common method was, as has already been shown, to produce the bond or other doc.u.ment, establishing the claim. If, for some reason, the doc.u.ment was not producible, the oath of the scribe who wrote it might be admitted.(231) The witnesses whose names appear on the doc.u.ment 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 doc.u.ment.

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 Ka.s.sites, 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 att.i.tude 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 ?ammurabi period, with the exception of the frequent West-Semitic names, we have little trace of aliens. When the Ka.s.sites came we may expect the conquering race to have had full rights. In a.s.syria 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 Doc.u.ments of Murashu Sons," and the list of proper names attached to Professor Hilprecht's edition sufficiently ill.u.s.trates 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 ill.u.s.tration 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 ca.n.a.l of Shamash by the priest of Sippara. It was to pa.s.s 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 pa.s.s, and the peoples of the neighboring fields were a.s.sembled. 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 ca.n.a.l, but stipulated that when it was completed, the neighbors should keep it in repair. Also he forbade the construction of any rival ca.n.a.l.(238) Riparians were responsible for the care of the ca.n.a.l 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 a.s.sumed 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 rest.i.tution. 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 a.s.syrian times of the a.s.signment of a slave-girl, as composition for manslaughter. Atarkamu, a scribe, had caused the death of Samaku, whose son Shamash-ukin-a?i 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-a?i 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 _ibutu_ that A shall not go away, or if he does, that B will do his work.

(M318) A case of a.s.sault 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 Sha?rin, 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 a.s.sembled 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 s.e.xual 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, const.i.tute 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 doc.u.ments extend it in some particulars. In a.s.syrian 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 ill.u.s.trations. 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 doc.u.ments which recognize the inst.i.tution. 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 const.i.tuted 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 a.s.sumed certain responsibilities over the man; for in a.s.syria 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