Babylonian and a.s.syrian Laws, Contracts and Letters.

by C. H. W. Johns.

PREFACE

The social inst.i.tutions, manners, and customs of an ancient people must always be of deep interest for all those to whom nothing is indifferent that is human. But even for modern thinkers, engrossed in the practical problems of our advanced civilization, the records of antiquity have a direct value. We are better able to deal with the complicated questions of the day if we are acquainted with the simpler issues of the past. We may not set them aside as too remote to have any influence upon us. Not long ago men looked to Greece and Rome for political models. We can hardly estimate the influence which that following of antiquity has had upon our own social life.

But there is a deeper influence even than Greek politics and Roman law, still powerfully at work among us, which we owe to a more remote past. We should probably resent the idea that we were not dominated by Christian principles. So far as they are distinct from Greek and Roman ideals, most of them have their roots in Jewish thought. When a careful investigation is made, it will probably be found that the most distinctive Christian principles in our times are those which were taken over from Jewish life, since the Old Testament still more widely appeals to us than the New. But those Jewish ideas regarding society have been inherited in turn from the far more ancient Babylonian civilization. It is startling to find how much that we have thought distinctively our own has really come down to us from that great people who ruled the land of the two streams. We need not be ashamed of anything we can trace back so far. It is from no savage ancestors that it descends to us. It bears the "hall mark," not only of extreme antiquity but of sterling worth.

The people, who were so highly educated, so deeply religious, so humane and intelligent, who developed such just laws, and such permanent inst.i.tutions, are not unprofitable acquaintances. A right-thinking citizen of a modern city would probably feel more at home in ancient Babylon than in mediaeval Europe. When we have won our way through the difficulties of the language and the writing to the real meaning of their purpose and come into touch with the men who wrote and spoke, we greet brothers. Rarely in the history of antiquity can we find so much of which we heartily approve, so little to condemn. The primitive virtues, which we flatter ourselves that we have retained, are far more in evidence than those primitive vices which we know are not extinct among us. The average Babylonian strikes us as a just, good man, no wild savage, but a law-abiding citizen, a faithful husband, good father, kind son, firm friend, industrious trader, or careful man of business. We know from other sources that he was no contemptible warrior, no mean architect or engineer. He might be an excellent artist, modelling in clay, carving rocks, and painting walls.

His engraving of seals was superb. His literary work was of high order.

His scientific attainments were considerable.

When we find so much to approve we may naturally ask the reason. Some may say it is because right was always right everywhere. Others will try to trace our inheritance of thought. At any rate, we may accord our praise to those who seized so early in the history of the race upon views which have proved to be of the greatest and most permanent value. Perhaps nowhere else than in the archives of the old a.s.syrian and Babylonian temples could we find such an instructive exhibition of the development of the art of expressing facts and ideas in written language. The historical inscriptions, indeed, exhibit a variety of incidents, but have a painful monotony of subject and a conventional grandeur of style. In the contracts we find men struggling for exactness of statement and clearness of diction. In the letters we have untrammelled directness of address, without regard to models of expression. In the one case we have a scrupulous following of precedent, in the other freedom from rule or custom. One result is that while we are nearly always sure what the contract said and intended, we often are completely unable to see why the given phrases were used for their particular purpose. Every phrase is technical and legal, to a degree that often defies translation. On the other hand, the letters are often as colloquial in style as the contracts are formal. Hence they swarm with words and phrases for which no parallel can be found. Unless the purpose of the letter is otherwise clear, these words and phrases may be quite unintelligible. Any side issue may be introduced, or even a totally irrelevant topic. While the point of these disconnected sentences may have been perfectly clear to the recipient of the message, we cannot possibly understand them, unless we have an intimate acquaintance with the private life and personal relations of the two correspondents.

Hence, quite apart from the difficulties of copying such ancient inscriptions, often defaced, originally ill-written, and complicated by the personal tastes of individual scribes for odd spellings, rare words, or stock phrases; besides the difficulties of a grammar and vocabulary only partly made out; the very nature of both contracts and letters implies special obscurities. But the peculiarities of these obscurities are such as to excite curiosity and stimulate research.

The wholesome character of the subject-matter, the absence of all possibility of a revision in party interests, the probable straightforward honesty of the purpose, act like a tonic to the ordinary student of history. Nowhere can he find more reliable material for his purpose, if only he can understand it. The history he may reconstruct will be that of real men, whose character and circ.u.mstances have not yet been misrepresented. He will find the human nature singularly like what he may observe about him, once he has seen through superficial manners and customs.

One important point cannot be too strongly insisted upon. Numerous as our doc.u.ments are, they do not form a continuous series. One collection is chiefly composed of temple archives, another comes from a family deed-chest, where only such doc.u.ments were preserved as were of value to the persons who collected them. At one period we may have a great number of doc.u.ments relating to one sort of transaction. In the next period we may have hardly any reference to similar transactions, but very complete evidence regarding other matters. We may a.s.sume that, in such a conservative country as a.s.syria or Babylonia, things went on for ages in much the same way. Conclusions rightly drawn for early times are probably true for the later periods also. As far as we can test this a.s.sumption, it holds good. We may even a.s.sume that the converse is true, but that is more doubtful.

Thus, we find that the practice of taking a pledge as security for debt is fully established for later times and we may therefore hesitate to deny its existence in early periods, although we have no direct evidence on the point. This absence of evidence may be due to the nature of the early collections. It may be an accident. It may also be due to the fact that the tablet acknowledging a loan was usually broken up on the return of the sum. But it might also be the fact that pledges were not usual in early times. Such was, indeed, formerly the conclusion drawn from the absence of doc.u.ments referring to pledges; but Dr. B. Meissner pointed out that the legal phrase-books bore witness to the existence of the custom. The discovery of the Code of ?ammurabi has shown that the practice not only existed, but was regulated by statute in his time. Hence the argument from silence is once more shown to be fallacious.

On the other hand, it is well to avoid a dogmatic statement of the existence of a practice before the date at which we have direct evidence of it: thus, it has been stated that the t.i.the was paid in Babylonia "from time immemorial." The only direct evidence comes from the time of Nebuchadrezzar II. and later. In view of such an early antiquity as that, the use of the phrase "time immemorial" was perhaps once justified. But we are now equipped with doc.u.mentary evidence concerning customs two or three thousand years earlier. Until we can discover some direct evidence there of t.i.the, we must content ourselves with saying that it was regularly paid under the Second Empire of Babylonia. We may be firmly convinced that a custom so widespread did not spring into being all at once. But the t.i.the may have been a composition for earlier dues, and as such may have been introduced from Chaldea by Nabopola.s.sar. It may therefore not have been of native Babylonian growth.

In this and many similar cases it is well not to go beyond the evidence.

To some extent the plan of this work must necessarily be different from that of the rest of the series. When a historical inscription is once well translated its chief bearings can be made out and it is its own interpreter to a large extent. But the object in a contract is to legally bind certain parties to a course of action, and there its translation ends. We do not find much interest now in the obligations of these parties, save in so far as they ill.u.s.trate the progress of civilization.

It is the conclusion we are to draw which gives the interest. When we have reached that, a thousand more contracts of the same type add nothing to that point. We may use them to make a study of proper names, or to correct our notions of chronology by their dates, or to draw up genealogies, or even to elaborate statistics of occurrences of particular forms of words, of prices, and the like; or try to reconstruct the topography of a town; but from the point of view of a student of law and history, a thousand are little better than one.

As a rule, however, we rarely find a fresh example of an old type without some small deviation, which is worth recording. But to translate it, for the sake of that small difference, would fill a book with examples, so similar as to be wearisome in their monotony. The only way then is to select some bold example, translate it as a fair average specimen, and then collect in an introduction and notes the most interesting additional items of information to be gathered from others of the type. Hence most of the types here selected have involved the reading and study of scores of texts, though but one is given in translation. Other points of great interest arise, as for example, the obligations to public service, which are not the direct subject of any one text. Hence, no single example can be selected for translation. The data of many texts must be collected, and only a sentence here and there can be utilized for translation. Hence, while other volumes of the series are properly translations, with brief introductions and a few notes, this must consist of copious introductions and many notes with a few translations.

Of course, all technical, philological and historical discussions must be avoided. Those who wish to find further examples, ill.u.s.trating the points given, will be referred to the sources and commentaries which give almost endless repet.i.tions of the same type. As a rule, a fresh example, which has not been translated before, will be used here. In some cases, however, where the most typical examples have already been used, they are reproduced.

The more important and new details are substantiated by references in foot-notes. When several references could be given, it has been the rule to give only one. For fuller information the literature of the subject may be consulted. But where the a.s.syrian or Babylonian words are given, the reader will consult the lexicons first. There are many admirable glossaries attached to the editions of texts, which for students are a valuable supplement to the lexicons. All philological discussions are, of course, excluded. As a rule, doubtful interpretations will be ignored or at least queried. It is, on the other hand, impossible to give detailed proofs of what is certain to the writer, when it disagrees with recognized authorities. Nor is it desirable to puzzle the reader with alternative views, when there is no opportunity for him to judge of their merits.

Every attempt will be made to discard non-essentials. Thus, in order to insure that there should be no mistake as to the persons intended, the ancient scribe usually gave not only the name, but the father's name, and often added the name of his tribe, or his occupation. For example, "Ardi-Ishtar, son of Ashur-bani, the son of Ga?al," might be the scribe's careful specification of one party to some transaction. But unless some other party is a relation and the transaction explicitly concerns what could take place between relations, the whole line gives us no information of value for ill.u.s.trating the subject for which it is quoted. Indeed, in most cases, the name itself is of no interest. It is true that the names have a value of their own; but that is aside from the purpose of this book. The examples are selected to ill.u.s.trate legal points, not for the sake of the names. And indeed, the few interesting names so given would be insufficient to serve any useful purpose; they might even be misused, for no permanent results can be obtained by picking up here and there a name, with some fanciful likeness to Abraham, or Jacob, unless a complete list of similar names be available to check and control the readings.

Hence, as a rule, the name of a party is condensed into a single letter, chosen usually in order to suggest the part played by the person in the transaction. Thus S stands for the seller, B for the buyer, J for the judge, C for the creditor, L for the lender, D for the debtor or borrower, and so on. These abbreviations may be used without any detriment to the argument, as the context usually defines the relation and there is no need to remember what they mean. This seems preferable, for the most part, to the Continental system of using A-A-G for the above name.

As a further abbreviation, all lists of witnesses are excluded. The date is usually suppressed, for, unless we are following a series of transactions between the same parties, nothing more than the epoch is of importance. As the material is arranged by epochs, there can be no question in this regard. If any evolution of process or any reference to former transactions is involved, so that the date is important, it is given.

A collection of legal doc.u.ments may be studied in a variety of ways.

Perhaps the least productive plan is to ransack them for ill.u.s.trations of a theory, or a particular point. When the theory is already well known, as in the case of Roman or mediaeval law, such a procedure is justifiable, but when the theory has to be made out, it is wellnigh inexcusable. Some valuable monographs have followed this method, but they can hardly expect to give permanent results. For comparative purposes our material is so new, and so little worked, that it is sheer waste of time to seek for parallels elsewhere until everything is clearly made out to which parallels are to be sought. The whole bulk of material must be read through and cla.s.sified. Until this is done, some important point may easily be overlooked.

The first attempts at cla.s.sification will be provisional. A certain amount of overlapping is sure to occur. For example, slave sales obviously form a provisional group. But slaves were sold along with lands or houses. Shall these sales be taken into the group? The sales of lands may be another group. To which group shall we a.s.sign the sale of a piece of land and the slaves attached to it? To answer that question we may examine the sales of slaves and the sales of lands to see if either group has peculiarities, the recurrence of which in a sale of land and slaves might decide. But we soon find that a slave was sold exactly like a piece of land or any chattel. The only exception is that certain guarantees are expected with the slave, which differ from those demanded with a piece of land. On the whole, then, the chief group will be "sales," with subdivisions according to the cla.s.s of property used. Hence we cannot a.s.sume that there was already present to legal consciousness a difference between real and personal property, or in any other sense that a slave was a person. He was a chattel.

The cla.s.sification which will be adopted is not one that will suit modern legal ideas. It depends on the form of doc.u.ment alone. If two doc.u.ments have the same type of formula, they will be grouped together. A future revision will, no doubt, a.s.sign to many of these a place in modern schemes. But it is very easy to be premature in a.s.signing an ancient doc.u.ment to modern categories.

The groups will be subdivided according to subject-matter. The order of the groups will be determined by the greater or less complexity of the doc.u.ments. It is best to take those first which can be easily made out.

The experience gained in discussing them will be of great service in dealing with more complicated cases. The reader must not, however, suppose that no obscurities will remain. Subsequent investigation will lead to redistribution. Each such revision will, however, bring us nearer to sound results.

One of the most interesting and instructive methods of dealing with a large collection of doc.u.ments is to group together the transactions, distributed over a number of years, of one man, or of a single family.

This method has often been adopted and makes most fascinating reading.

Thus, M. V. Revillout, in the appendix to M. E. Revillout's lectures ent.i.tled _Les obligations en droit egyptien_, under the t.i.tle of _Une famille des commercants_, discussed the interrelations of a large number of tablets published by Stra.s.smaier. These had a special connection, being found, and practically kept, together. They are concerned chiefly with the business transactions of three persons and their descendants. The three men do not seem to have been related, but to have become partners. The first transaction in which they are concerned is an equitable division of property which they had held in common. They and their descendants lived side by side in Larsa and gradually extended their possessions on every side. They were neighbors to two wealthy landowners from whom and from whose descendants they gradually acquired lands and houses. Especially did two brothers, sons of one of the original three, buy up, piece by piece, almost all the property of these two neighboring families. Further, in acquiring a piece of land, they seem to have come into possession of the deeds of sale, or leases, of that plot, which had been executed by previous owners. Thus, we can, in some cases, follow the history of a plot of land during several reigns.

Such a collection of doc.u.ments probably did not come from the public archives, but from the muniment-chest of a private family, or of a firm of traders. That duplicates of some of these tablets should have been found in other collections, points either to the collections having been purchased from native dealers, who put together tablets from all sources, or to the duplicates having been deposited in public archives, as a kind of registration of t.i.tle.

In a.s.syrian times the transactions of the great Rimani-Adadi, the chief charioteer and agent of Ashurbanipal, who for some thirteen years appears almost yearly, as buyer or seller, lender or borrower, on some forty tablets, may serve as a further example,(1) or we may note how Ba?ianu appears, chiefly as a corn lender, year after year, for thirty-three years, on some twenty-four tablets.(2)

For the Second Empire of Babylonia, Professor J. Kohler and Dr. F. E.

Peiser have given some fine examples of this method. Thus, for the bankruptcy of Nabu-aplu-iddin,(3) they show that the creditors distrained upon the bankrupt's property and found a buyer for most of it in a great Neriglissar, afterwards King of Babylon. The first creditor was paid in full, another received about half of the amount due to him, a third about the same, while a fourth obtained less than a quarter of what was owed him. They also follow out the fortunes of the great banking firm of Egibi(4) for fully a century. The sketch, of course, is not complete, and can only be made so by a prolonged search through thousands of doc.u.ments in different museums; but it is intensely interesting and written with wonderful insight and legal knowledge. Another example is the family, or guild, of the priests of Gula.(5) This is less fully made out but most valuable, as far as it goes. In both cases a genealogy is given extending over many generations.

Later still, the Babylonian Expedition of the University of Pennsylvania, in the ninth volume of Cuneiform Texts, gives a collection of the business doc.u.ments of one firm, "Murashu Sons, of Nippur," in the reign of Artaxerxes I. Here we have to do with a family deed-chest, a collection of doc.u.ments found together and fortunately kept together.

But this method, attractive though it is, cannot be followed here. The reader is best led on from the known to the unknown. Those things must be taken first which must be understood in order to appreciate what is placed later. We consider first the law and the law-courts. The reader can thus follow the references to procedure which occur in the other sections. The rights of the State, the family, and the private individual come next.

Then we learn of the cla.s.ses of property and the various ways of disposing of it. After that is taken up a variety of disconnected topics, whose order is mainly indifferent. Some overlapping of divisions is sure to occur in any order. This system has been found, after many permutations, to present the least inconvenience.

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.

SOURCES AND BIBLIOGRAPHY

(M1) The chief sources from which is derived our knowledge of Babylonian and a.s.syrian law are the contemporary inscriptions of the people themselves. These are not supplemented to any appreciable extent by the traditions of cla.s.sical 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 doc.u.ments the reader may refer to Professor C. Bezold's _Kurzgefa.s.ster uberblick uber die babylonisch-a.s.syrische 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 ?ammurabi 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 a.s.signed. 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 doc.u.ments. In both wording and subject-matter they often ill.u.s.trate 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 inst.i.tutions 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 ?ammurabi (_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 circ.u.mference. 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 _Memoires de la Delegation 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 t.i.tles 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 s.p.a.ce.

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 _ebarra uati_, "this Ebarra," which was the temple of Shamash at Sippara. At the head of the obverse is a very interesting picture of ?ammurabi receiving his laws from the seated sun-G.o.d Shamash. Some seven hundred lines are devoted to the king's t.i.tles and glory; to enumerating the G.o.ds 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 Ashurbanipal 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 _Ninu ilu ?irum_, from the opening words of the stele. But, judging from the colophon of the a.s.syrian series, the scribes knew that the inscription came from a stele bearing the "image" of ?ammurabi. 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.