Babylonian and Assyrian Laws, Contracts and Letters Part 18

The three slaves may have thus been all the private property of the father which was available for division. But the context seems to suggest that what the brothers received was a concession from the eldest brother on which they had no claim. He may in consideration of his succeeding to his father's appointment have made this concession to his brothers as a consolation.(399) In another case a mother gives certain sums to her three sons. She had still left two sons and two daughters, and the first three agree to make no claim on all that she and these four children have or shall acquire.(400) It is noteworthy that one of the three receives ten shekels as the _ter?atu_ of the wife he shall marry. He was evidently not of marriageable age, or, at any rate, still unmarried. In such a case the Code directed that on part.i.tion of the father's property, a special sum should be laid aside for this necessary present to the bride's father.(401) So we find two brothers giving a sister a share consisting of one-third _SAR_ of a house, next her brother's, one maid, a bed and a chair, with the promise that on the day that she marries and enters her husband's house she shall receive further two-thirds _GAN_ of land and slaves.(402) The list of property is often given, especially where brothers give shares to their sisters. Sometimes the relations.h.i.+p is less close. Thus a man shares with two sons of his father's brother, _i.e._, with two cousins, ten _SAR_ of unreclaimed land, taking three and a half _SAR_ as his share.(403) Sometimes the property included the mother's marriage-portion. Thus three brothers divide their property and two of them, as her sons, share their mother's marriage-portion:(404)

(M409)

One _SAR_ of built land and granary, next the house of Ubarria and next that of Bushum-Sin, two exits to the street, the property of Urra-na?ir, which he divided with Sin-ikisham and Ibni-Shamash.

From mouth (?) to gold the share is complete. Brother shall not dispute with brother. By Shamash, Malkat, Marduk, and Sin-mubali?

they swore. Nine witnesses. Thirteenth year of Sin-mubali?.(405)

The property which fell to Urra-na?ir was a house occupying one _SAR_ of land. The text means not that the three men, Urra-na?ir, Sin-ikisham, and Ibni-Shamash, divided the house among them, but that at the division this house was the share of the first named. What the two, Sin-ikisham and Ibni-Shamash, had as their share we are not here told. But the three agreed not to call in question the division of property, which probably came to them from their father or mother. Fortunately we know in this case what the others got. Thus we find:

One _SAR_ of built land, (and) granary, next the house of Ibni-Shamash and next the street, its exit to the street, the property of Sin-ikisham, which he divided with Ibni-Shamash and Urra-na?ir. From mouth (?) to gold the share is complete. Brother shall not dispute with brother. By Shamash, Malkat, and Sin-mubali? they swore. Nine witnesses. Thirteenth year of Sin-mubali?.(406)

And again:

One _SAR_ of built land, (and) granary, next the house of Sin-ikisham and next the house of Ishtar-Ummasha, two exits to the street, the property of Ibni-Shamash, which he divided with Sin-ikisham and Urra-na?ir. From mouth (?) to gold the share [is complete]. Brother shall not dispute with brother. By Shamash, Malkat, Marduk, and Sin-mubali? they swore. Nine witnesses.

Thirteenth year of Sin-mubali?.(407)

Thus we see that each brother, if they were brothers, obtained exactly the same share, one _SAR_ of land on which a house was built. Two of them, Sin-ikisham and Ibni-Shamash, were next door to each other. Ibni-Shamash had the street on the other side of him, in fact, occupied a corner house.

The third brother, Urra-na?ir, had a house in another part of the town. We therefore must understand the word "divided" in the sense "obtained on division." In the second and third case the word rendered share is literally "all." But the first text shows that "all is complete" means "the share is complete." The meaning of the expression, "from mouth (?) to gold," is still obscure. It is not certain that _bi-e_ really means "mouth." But as Meissner has shown,(408) it exchanges with the ideogram for "mouth." He therefore suggests that the whole phrase means "from the first verbal discussion of the division to its consummation by payment the part.i.tion of the property is now at an end." That seems probable enough, but we may yet find a different explanation. If this be correct, it is of interest to note that while silver seems to have been the usual money, this phrase seems to a.s.sume that gold would be used in payment. A curious parallel is the fact that while in later times we always find the order gold and silver, in Sumerian texts it is silver and gold. We must not press this too far, but it really looks as if in early times silver was more valued, or at any rate, less in use than gold.

It will be noted that the second text omits Marduk from the oath, while the others name him. The third text omits _gamru_, "is complete." The nine witnesses and the date are the same for all three. In the first and last the names of the witnesses only are given, but in the second the name of the father is added to several of them.

(M410) In the case of testamentary doc.u.ments, using the phrase in a loose way to cover gifts embodied in a deed, we usually find a list of property donated. These lists give rise to insuperable difficulties to the translator. The difficulties are not so much due to the imperfections of our knowledge of Babylonian methods of writing as to the practical impossibility of finding exact terms in one language for the terms relating to domestic furniture in another. Even in the case of languages so well known to us as French and German are, we are obliged to transfer their words unaltered into our own tongue. The most skilled translator must leave a French or German _menu_ untranslated. We know for instance that the signs, _GI-GU-ZA_ were used to denote the Babylonian _kussu_.

When a G.o.d or king sat upon a _kussu_ we may be satisfied with the rendering "throne," but when we find a lady leaving her daughter six _kusse_ we feel that "throne" is rather too grand. But whether we elect to call them chairs, stools, or seats, we are guilty of some false suggestion. A careful examination of the sculptured and pictured monuments may give us a clearer idea of what seats were used. The reader may consult Perrot and Chipiez, or the dictionaries of the Bible, under the articles: chairs, couches, _et cetera_, for ill.u.s.trations. Unless we can find a picture with a named article upon it we are still left a wide margin of conjecture. The picture of Sennacherib receiving the tribute and submission of Lachish gives the contemporary representation of a _kussu nimedu_, but we cannot argue that every _kussu_ was of the same pattern.

We may decline to attempt a solution and merely give the original word, we may make a purely arbitrary rendering, or we may accompany the original word with an approximate indication of what is known of its nature. In neither case do we translate, for that is clearly impossible. But the reader needs a word of caution against the translations which show no signs of hesitancy. They are not indicative of greater knowledge, but of less candor. Further, to scholars a reminder is needed that even the syllabaries and bilingual texts do not give exact information. Thus alongside _GI-GU-ZA_ we find a number of other ideograms, all of which are in certain connections rendered _kussu_, adequately enough no doubt, but that they all denoted exactly the same article of furniture is far from likely. A closer approximation to an exact rendering may come with the knowledge of a large number of different contexts, each of which may shade off something of the rough meaning. One of the great difficulties of the translator is that the same word often occurs again and again, but always in exactly the same context. This is especially the case in the legal doc.u.ments, filled as they are with stock phrases.

(M411) According to the Sumerian laws disinheritance appears to have been simply the result of repudiation of a child by a parent, who has said to him, "You are not my son." The penalty for a child's repudiation of parents is to be reduced to the condition of a slave. There may also be a reference to renunciation on the part of an adopted child, but there are no legal doc.u.ments to clear up the point.(409)

(M412) The Code is much clearer. Here the father is minded to cut off his son. But the disinheritance must be done in legal form. The father must say to a judge, "I renounce my son." The judge must then inquire into the grounds of this determination. A grave fault must be alleged. What this was we are not told. But rebellious conduct, idleness, and failure to provide for parents are probable. A parent had the right to his son's work. An adoptive parent had a right by the deed of adoption to maintenance. If the fault could be established as a first offence, the judge was bound to try and reconcile the father. If it was repeated, disinheritance took place legally. It was done by a deed duly drawn up.

The Sumerian laws show that a mother had the same power as the father.

Whether this was only exercised when there was no father, or whether a wife could act in this way independently of her husband in disinheriting children, does not appear. But possibly she had power in this respect only over her own property.(410)

It has been suggested that disinheritance sometimes took place as a legal form and with consent of a child, in order to admit of his adoption into another family or to free the parents from responsibility for the business engagements of the son.

(M413) An adoptive parent, who had brought up a child and afterwards had children of his own, could not entirely disinherit his adopted child. He was bound to allow him one-third of a child's share. But he could not alienate to him real estate.(411)

XVII. Slavery

(M414) In modern thought slavery concerns personal rights. But it was not thus regarded by the Babylonians, for the slave was an inferior domestic, and, like the son in his father's house, _minor capitis_. That he was actually a chattel is clear from his being sold, pledged, or deposited. He was property and as such a money equivalent. He might be made use of to discharge a debt, according to his value. Hence, while some account of slavery belongs with the discussion of the family, it is also a part of the section dealing with property, since the slave was a piece of property.

(M415) But the slave had a great amount of freedom, and was in no respect worse off than a child or even a wife. He could acquire property, marry a free woman, engage in trade, and act as princ.i.p.al in contract with a free man. Only, his property, at his death, fell to his master. He was bound to do service without pay, though he had the right to food and drink. He could not leave his master's service at his own will, but he might acquire enough property to buy his freedom. He was tied to one spot, not being allowed to leave the city, but might be sent anywhere at command.

(M416) His status was, however, a complex of seeming inconsistencies. Yet it was so well understood that we rarely get any hints as to the exact details. It is only by collecting a vast ma.s.s of statements as to what actually occurred that we can deduce some idea of the actual facts.

Professor Oppert in his tract, _La Condition des Esclaves a Babylone, Comptes Rendues_, 1888, pp. 11 ff.; and Dr. B. Meissner, in his dissertation, _De Servitute Babylonico-a.s.syriaca_, have gathered together the chief facts to be gleaned from the scattered hints in the contracts.

Professor Kohler and Dr. Peiser discussed the question thoroughly in their _Aus Babylonische Rechtsleben_. Many articles discussing the contracts, and most of the histories touch upon the subject. We shall come back to it later under the head of Sales of Slaves. It is very difficult to disentangle facts from the ma.s.s of scattered hints, often consisting of no more than a word or two in a long doc.u.ment.

(M417) The inst.i.tution of slavery dates back to the earliest times. We cannot in any way attempt to date its rise.

Already in the stele of Manistusu we find a slave-girl used as part of the price of land and worth thirteen shekels;(412) while nine other slaves, male and female, are reckoned for one-third of a mina apiece. This remained a fair average price for a slave in Babylonia down to the time of the Persian conquest. For the variations, see later under Sales of Slaves.(413) The Code shows that the slave was not free to contract except by power of attorney,(414) and that it was penal to seduce him from his master's service,(415) or to harbor him when fugitive.(416) It fixes a reward for his recapture,(417) makes it penal to retain a recaptured slave,(418) and deals with his re-escape.(419) It shows that he was subject to the "levy."(420) It also determines the position of a slave-woman who bears children to her master,(421) or of a slave who marries a free woman.(422) In each case the children are free. It fixes the fees to be paid by the slave's master for his cure,(423) deals with injuries done to a slave,(424) damages being paid to his master;(425) enacts that if captured and sold abroad he must be freed, if re-patriated,(426) and a native of Babylonia, otherwise he returned to his master.

(M418) By far the greatest number of references to the slave condition occur in doc.u.ments relating to the sale of slaves. These may be summarized here. One peculiarity always marked the sale of a slave, it was not so irrevocable as that of a house or field. For a slave might not be all he seemed. He might be diseased, or subject to fits, he might have vices of disposition, especially a tendency to run away. A female slave might be defective in what const.i.tuted her chief attraction. Hence there was usually a stipulation that if the buyer had a legitimate cause of complaint he could return his purchase and have his money back. In fact, an undisclosed defect would invalidate the sale. These defects might be physical, inherent, contingent, or legal.

(M419) There seems to have been a dreaded disease called the _bennu_.

Professor Jensen(427) has shown how largely it bulks in the literature, and what dire effects are ascribed to it. But it was not the only severe disease from which men suffered then. It is a.s.sociated with several others as bad. Hence in legal doc.u.ments we may take it as a typical example of a serious disease, which would so detract from the value of a slave that the purchaser would not keep him. It is evident that it was something that the purchaser could not detect at sight. Perhaps it was a disease which took some time to show itself. It is mentioned in the Code and in the sales of slaves of the First Dynasty of Babylon. It also occurs in a.s.syrian deeds of sale, down to the end of the seventh century B.C. The Code and the contemporary contracts allow one month within which a plea could be raised that the slave had the _bennu_. The purchaser could then return him and have his money back. In the a.s.syrian deeds one hundred days is allowed.

In the a.s.syrian deeds _?ibtu_ is also allowed a hundred days. This is often a.s.sociated with _bennu_ in the mythological texts as equally dreaded. It affected the hands or the mouth. We may render it "seizure,"

and think of some form of "paralysis."

(M420) The objections which come under the head of legal defects are summed up in the Code as a _bagru_, or "complaint." In the contracts and Code this could be pleaded at any time. So in a.s.syrian times a _sartu_, "a vice," could be the ground for repudiation at any time. This might arise from the disposition of the slave. The sale might also be invalidated by a claim on him for service to the state; by a lien held by a creditor; by a claim to free citizens.h.i.+p. But we are not yet in a position to state definitely what was the exact nature of these claims. Doubtless the recovery of further codes will fix them finally.

In later Babylonian times Law B specially provides for the return of the slave at any time, if a claim be made on him.

(M421) In a.s.syrian times sales of slaves are very frequent, and we learn much more about the status of the slave. The slave was certainly a social inferior, but probably had more freedom than any other who ever bore the name. He certainly had his own property and could contract like a free man. A young slave lived in his master's house up to a certain age, when his master found a wife for him. This was usually a slave-girl. The female slaves remained in the house as domestic servants to old age, unless they were married to a slave. Married slaves lived in their own houses for the most part. Many such men seem to have taken up out-door work, gardening, agricultural labor, or the like, on their master's estates. Others engaged in business on their own account. But from all the master had a certain income. This was, within a little, the average interest on the money-value of a slave. And that interest was usually twenty-five per cent. per annum in a.s.syria.

(M422) Theoretically a master owned his slave's property. What this owners.h.i.+p amounted to is hard to say. But the slave was rarely separated from it. His family at any rate was sacred. When sold, he was sold with his family. This, of course, does not exclude the sale of a young man at a time when he would naturally leave his father's home. Young women were taken into domestic service, and after a time sold. But there was none of that tearing of children from parents, which so shocked people in the modern examples. It is probable that a slave could not marry without his master's consent. He certainly could not live where he liked. But he was free to acquire fair wealth, and his property was so far his own that he could buy his own freedom with it.

(M423) In a.s.syria there was a large body of serfs, _glebae adscripti_.

They could be sold with the land. But they were free to work as they chose. Usually they cultivated a plot of their master's, but often had lands and stock of their own. They were not free to move, and probably paid a rent, one or two thirds of their produce. But they were mostly on the metayer system, and could claim seed, implements, stock, and other necessary supplies from their master. This cla.s.s evidently possessed privileges highly esteemed, for their ranks were recruited from all cla.s.ses of artisans in the towns, cooks, brewers, gardeners, washermen, and even scribes. Some of these were probably free men, others certainly had been slaves.

(M424) The three cla.s.ses, domestic slaves, married slaves, and serfs, were continually exchanging their condition. Not a few free men, whether from debt, judicial sentence, or choice, were added to these cla.s.ses. For these men, if dependent, were cared for and provided with the necessaries of life. They were, if domestic, clothed, housed, and fed; if they married and lived out, they were given a house, and either were provided with land that brought them a living, or engaged in business.

(M425) The army and corvee, or levy for forced labor, were chiefly obtained from the slaves, and above all from the serfs. A head of a family, or mother, was not liable. But young men and women had to serve a certain number of terms of service, seemingly six.(428) Hence it was of importance to the buyer of a slave to receive a guarantee that this claim had been satisfied.

(M426) We have many examples of slaves who were skilled artisans. They had been taught a handicraft. Later we shall come across cases of apprentices.h.i.+p of slaves to learn a craft. But all the artisans were not slaves. Indeed, some of the craftsmen, as goldsmiths, silversmiths, carpenters, were wealthy persons.

(M427) As a rule, though the slave is named, his father is not. But, just as in mediaeval times, a serf's father is named. The serf's holding seems to have been hereditary. But we have too few examples to be sure of our ground here. The slave's father was not concerned in the sale, and that may be the sole reason why he is not named. Fathers sometimes sold their children to be slaves, then they are named. Such sales are not so unnatural as they appear. It was a sure provision for life for a child to sell him as slave to a family in good position.

(M428) In the later Babylonian times, the almost total disappearance of the serf has been noted as very remarkable. But this may be entirely due to the nature of our doc.u.ments. The temples owned a great deal of land and their slaves were in the condition of serfs.

(M429) In later Babylonian times we have a very large number of examples of slave sales. So far as the formula of a deed of sale is concerned, there is nothing to distinguish from a sale of the ordinary type, thus marking the slave as a chattel.

(M430) But there are several clauses, which directly ill.u.s.trate the possession of slaves, their position and liabilities. One clause, frequent when slaves were either pledged or sold, was a guarantee on the part of the owner against a number of contingencies. These are not easy to understand.

(M431) First we have the _amelu si?u_. _Si?u_ means rebellion or civil war. Sennacherib was slain in such an uprising.(429) It may be that then the slave would be impressed for defence of law and order. Or it may be that _amelu si?u_ is the rebel, or mob, who might carry off the slave. Or the contingency contemplated may be that the slave should turn rebel and refuse to do his master's bidding. The fact that a s.h.i.+p was also guaranteed against _amelu si?u_,(430) renders this less likely. A s.h.i.+p could not turn rebel. It is not unlikely that slaves often joined in the rebellions.

(M432) That a slave would escape by flight was always a danger. The slave had great freedom and many opportunities of getting away. The only security was that wherever he went he was likely to be recognized as a slave and anyone might recapture him. However, the captor had a right to a reward and so the owner would have to pay to get him back, besides losing his services for a time. Hence a slave who had a fancy for running away was likely to be troublesome and costly. That might lead to his being sold. But the purchaser protected himself by a guarantee on the seller's part that the slave would not run away. Then if the slave fled and was brought back, the captor gave a receipt for the sum paid him, and the owner reclaimed it from the seller.

(M433) The captor might retain the slave until he was paid.(431) In other cases the seller had to recover the slave for the buyer. In a.s.syrian times the seller guaranteed also against death. Here it has been argued that the guarantee meant only that the slave had not fled or was not dead at the time of sale. This is not likely in the case of death. Surely no man could buy a slave who was dead. He would not pay, if the slave was not delivered. But he might bargain for recompense, if the slave died within a short time after purchase, as the seller might have had reason to know that he was ill.