Babylonian and Assyrian Laws, Contracts and Letters Part 22

(M534) We have a great variety of types of donation, not always easy to cla.s.sify, and often obscure, in some details. The common characteristics are that deeds of gift were duly executed, sealed, and witnessed; and that the consents of the parties, whose expectations were thus diminished, or restricted, had to be obtained.

(M535) A daughter might be portioned off for marriage and this involved a gift, which might be treated as a donation, but rather comes under the head of marriage-portion, in the chapter on marriage. Precisely the same portioning took place when the daughter either became a votary or was dedicated to the service of a G.o.d. Such gifts may be included here. They usually contain a list of property: sharing houses, land, slaves, jewels, money, clothes, household furniture, even pots of honey or jars of wine.

As a rule, in our present state of knowledge, nothing that could pretend to be an accurate translation can be given of the items of such a gift, only a general idea of the nature of the whole. Such a gift, however, evidently set the lady up in an establishment of her own, with all she could require for maintenance and comfort for the rest of her life.

(M536) Here these donations split up into separate cla.s.ses. The recipient might have only a life interest in her gift, or it might be hers outright.

The latter case could not be presumed. The heirs of her parents, "her father's house," would maintain their claim at her death, unless they had specially contracted to waive it. Then the clause was inserted that she might "give her sons.h.i.+p to whomever she pleased," _aar elia tab.u.m aplutsa inadin_.(555) By "sons.h.i.+p" is meant "heirs.h.i.+p." Such cases do not seem common and are probably to be explained as due to the fact that as a votary she had no legitimate heir. It is important to note that there is no hint that, if she died without heirs, the temple would inherit.

(M537) A modified freedom is allowed by a father who gives his daughter house, land, sheep, slaves, and the like, but limits her power of gift to her brothers. But among them she may "give it to him who loves and serves her."(556) It is a.s.sumed that one of her brothers will care for her and manage her estate and be rewarded by the reversion of it. As a rule, it is only a life interest which the recipient has.

A different sort of gift is where the donor reserves to himself a use of the property as long as he lives, or stipulates for a life allowance from it. These are usually accompanied by formal adoption. The recipient is one who has not already a claim to inherit, but undertakes the care or maintenance of the donor. Such gifts are best cla.s.sed under adoption, even where the fact of adoption is not stated. When a parent makes an arrangement of this kind with a son or daughter, these were possibly adopted by a previous act. At any rate, it seems likely that such a child was either unmarried or again free to wait upon the donor. But whatever the actual state of relations.h.i.+ps, we find a mother giving property to a daughter, reserving the use of it as long as she lives.(557) Similarly a brother undertakes to give one shekel _per annum_ to his brother. Here the grounds of the undertaking are not stated, but a contract to do this is duly sealed and witnessed.(558) Further, maintenance is stipulated for, though the relations.h.i.+p is not stated, nor grounds given. This may not be based upon a gift, but follow the order of some judge, for other reasons.(559)

(M538) The husband might settle upon his wife a fixed amount of property.

This was frequently done and was called the _nudunnu_. It might include a house, two maids, clothes, jewelry, and household furniture.(560) Here the sons are expressly said to have no claim, she may give it to whoever serves her and "as her heart desires." Probably she was a second wife without children, and is thus secured a life of comfort and the faithful service of her step-sons. As a rule these gifts are best considered under the head of marriage, but they were also free gifts on the donor's part.

The wife in any case had her right to inherit with her step-sons, if her husband made no such settlement.

(M539) The consent of the legal heirs of the donor to such alienation of their reversionary rights was needed. Thus in one case, when a man gives his daughter a house, his son appears as the first witness.(561) A father and his son give their daughter and sister a house, which she is free to give to her son, "whom she loves."(562) Had the house merely come to her as her share in the usual way, it must have been shared by her sons. If she had none, then her brother would be the next heir. That she can leave it as she will must be a matter of legal instrument. The brother must consent to the exception to the rule.

(M540) In a.s.syrian times, donation is rarely represented within the group of doc.u.ments which have reached us. Here is one case:(563)

The household which Bel-na'id gave to his daughter, Baltea-abate.

A house in Nineveh, before the great gate of the temple of Shamash. (Then come the servants, a _a?u_ or head man, a washerman, a _aknu_, and others, male and female, in all eleven souls.) Dated the fourteenth of Adar, in the Eponymy of Marduk-shar-u?ur. Nine witnesses.

This may be donation, or adoption, or even a marriage-portion.

At all times, a difficulty arises from the phraseology of the deeds of gift. When we are told that "A has given B such and such things," we do not know the ground of the gift. "To give for money," _nadanu ana kaspi_, is the usual expression for "to sell." In the older doc.u.ments _ara?u_, "to present," often occurs, but has in most cases the derived technical sense "to dower," or "give a marriage-portion." Hence, we are not able to judge whether what appears as "gift" may not really be "a sale," or some payment meant to complete the portioning off of a daughter, on marriage or taking vows.

(M541) There are, however, a large number of deeds of gift which have reached us from the Second Babylonian Empire. The characteristic formula may be taken to be _ina ?ud libbiu iknukma pani uadgil_, "in the joy of his heart (_i.e._, of his own free will, implying that no consideration was taken _per contra_) he has sealed and placed at the disposal of." As a rule, we may suspect these to be "gifts" to which the recipient had a right. Thus, mother to son,(564) brother to sister,(565) man to wife and daughter,(566) mother to daughter,(567) are not free from suspicion. But when a man gives maintenance to wife and son,(568) brother gives dower to sister,(569) father-in-law gives son-in-law arrears of his daughter's dower,(570) and wherever there is a hint that the "gift" was a _nudunnu_, or a _eri?tu_, we may regard the case as not properly "donation," but "dower."

(M542) The following example shows the limitations on free gift that still remained in later times.(571) Zerutu had married and had a son, Shapik-zeri. Then he had an intrigue with Nasikatum, daughter of the Sealand scribe, who bore him a son, Bala?u. He gave Bala?u a house, but did not adopt him. After Zerutu died, Shapik-zeri demanded the house as his father's heir. The judges gave it to him and also the deed of gift.

(M543) The dedication of land to a temple or of a child to the service of a G.o.d may be considered as examples of free gift; but they are of a nature deserving separate consideration. We have already noticed some cases of such donations by the kings. We know from the Code that a father might dedicate a child as a votary,(572) and he might portion that child; but this did not bring a free gift to the temple, for the family had the reversion of the votary's property.

As a further example of dedication by a private owner, we may take the following:(573)

(M544)

As temple of the G.o.d Lugalla (the king) and his consort Shullat, Nur-ilishu, son of Bel-nada, has dedicated to his G.o.d one _SAR_ of improved land, for his life (salvation), has devoted it to his G.o.d. Pi-sha-Shamash shall be the priest of the temple. Nur-ilishu shall lay no claim to the priesthood. The curse of Shamash and of Sumula-ilu be on him who disputes the settlement. Seven witnesses.

This is total alienation. The donor is not making an indirect provision for himself, but waives all claims to be the chief priest of the temple.

(M545) Here is an example of a dedication of children:(574)

Tablet of Ishtar-ummi and A?atani, daughters of Innabatum.

Innabatum, daughter of Bur-Sin, has dedicated them to Shamash. As long as Innabatum lives, Ishtar-ummi and A?atani shall support her, and after Innabatum, their mother [is dead], no one among her sons, their brothers, shall have any claim on them for anything whatever. They have sworn by Shamash, Malkat, Marduk, and Apil-Sin. Fifteen witnesses (of whom the first two are probably the brothers, the rest females, probably all votaries of Shamash and members of the convent.)

In another case, a mother dedicates her son to Shamash,(575) with the stipulation that the son shall support her as long as she lives.

(M546) In a.s.syrian times we have an example(576) of a dedication of a son to Ninip, by his mother, with consent of her brothers and their sons. A father also dedicates his son to Ninip(577) for the well-being of Ashurbanipal, King of a.s.syria. This is interesting as showing that the dedicator acquired merit, which he could transfer to another. Both tablets are defective. In another case, A?i-dalli, the lady governor of one quarter of Nineveh, purchases a large estate and presents it to some G.o.d "for the health of the king."(578) Votive tablets giving the presentation of various articles to some G.o.d are common enough at all periods.

(M547) Testamentary devolution of property was not the rule in a.s.syria or Babylonia, where the law of inheritance was so firmly fixed that it would be naturally illegal. As a rule, children did not inherit under their fathers' will, but by right. However, the Code allows a father to give his married or vowed daughter power to leave her property as she will,(579) and it is probable that he had the same power over at least some of his property. The very frequent cases of adoption, where the adopted child becomes heir, on condition of supporting the parent as long as he lives, and the cases of gift _retento usufructu_, are a sort of testamentary disposition of property.

This developed with time into something very like testament. But we always have to bear in mind that conditions may have been understood which are not actually expressed.

(M548) Some examples from later Babylonian times will serve to ill.u.s.trate how near these transactions came to testament. A very interesting case is where a son, probably childless, if not unmarried, and perhaps not in good health, gives his father his property. The doc.u.ment is very involved, but the chief points are these: A married B and they had a daughter C, who married D. The son of C and D is the testator. He leaves to his father D all the property which he inherited from A and B, which they had left to their daughter's son. It consisted of a house, fields, and slaves. He leaves it to his father "forever," only he is to retain the enjoyment of it as long as he lives. He therefore expects his father to survive him.(580)

Here is another interesting example:(581)

The division which A made with his sons B and C. The benefice of dagger-bearer (official slaughterer) in the Ish?ara temple he a.s.signs to B. The benefice of the shrine of Papsukal in the temple of Belit-shami-er?iti, situated on the bank of the ca.n.a.l, and the sown corn-field on the Dubanitu ca.n.a.l he gave to his younger son C. All his property out in business he a.s.signed to his mother and his two sisters. Certain dates in the possession of two of his debtors he gave to his two sisters. A fugitive slave, not yet recovered, to his mother and sisters. The house, which by a former deed he had given to his mother and sisters, shall be theirs according to the former deed. As long as his mother lives, she shall enjoy the property formerly a.s.signed her. The benefice of the dagger-bearers.h.i.+p in the temple of Ish?ara, which he had formerly a.s.signed to his mother, she has freely intrusted to his son B. As long as she lives, B and C shall live in the house with her. The income of his mother his sons shall enjoy with her. She shall give marriage-portions to his sisters, her daughters, from her own marriage-portion.

This is very like a last will and testament. The man clearly expected to die shortly. He had married and had two sons, but seems to have lost his wife. He had evidently brought his mother and sisters to live with him. He provides for his sons, his mother, and sisters. Evidently his mother is the guardian of the boys. She is expected to leave the boys all the property that was his and to dower the sisters from her own fortune.

XXII. Sales

(M549) Alienation of property in perpetuity was a matter for serious consideration, where all property was as much that of the family as of the individual. A change of owners.h.i.+p, particularly in the case of land or house, also directly concerned the neighbors. Hence the deeds of sale are imposing doc.u.ments. Whether the object sold was a piece of land, a house, or a slave, the same general treatment was accorded to it.

(M550) There were the same formalities as in all deeds. First the purchaser approached the vendor and there was an interchange of ideas, often through a third party, prolonged over a considerable s.p.a.ce of time.

When etiquette had been satisfied and all the preliminary haggling was over, the parties agreed upon a scribe, who was made acquainted with the terms of the sale, already verbally agreed upon, and he set down in the imperishable clay the legal instrument which should bind the parties to their contract forever.

(M551) Undoubtedly both parties took a copy, and it seems clear that a third was deposited in the temple archives as a sort of registration of t.i.tle. It seems probable that each party sealed the copy held by the other, but this surmise awaits confirmation. As a rule, the same seal seems to have been used for all copies, and the witnesses in early times also affixed their seals. A more exhaustive study must be made before this can be regarded as certain. Even where duplicates exist in our museums, it has been usual to publish only one.

(M552) As a rule, the scribe followed a very definite plan. First he made clear the ident.i.ty of the property. This was the specification. In the case of land, neighbors were set down, boundaries given, in some cases the size of the plot. In each sale the specification is very important. The personal ident.i.ty of the parties was usually sufficiently fixed by appending to their names those of their fathers. In many cases, the office or rank held by a party is added. Occasionally the name of the grandfather, or clan-father is added. When either party was a stranger, his nationality, or city, or tribe, is given. As a rule, the same information is attached to the names of witnesses. These notes of personal ident.i.ty are very valuable, for they furnish means for reconstructing long genealogies, and they throw much light on the intercourse of varied peoples. Babylonia seems always to have had a very mixed population.

(M553) Having made it impossible for any mistake to arise as to the property sold or the parties concerned, the scribe proceeded to guard against errors regarding the nature of the transaction. The house or other property "was sold," "the money paid," "in full," and so on. Then he sought to make it clear that there could be no withdrawal from the bargain, nor after-claims raised. There was danger that the family might put in a claim to the property. An ill.u.s.tration of this is a suit brought to reclaim a house sold, which was the claimant's reversion-an actual redemption of ancestral property. From such perils the buyer was protected by heavy penalties on the seller, who in fact engaged to indemnify him.

(M554) These and many other complicated questions must have long been the subject of consideration in Babylonian legal circles. As a consequence, the scribe usually drew up the deed, in set terms, with a formula consecrated by long use, every turn of which was important.

The following is a good example of the way a scribe drew up a deed of sale:(582)

(M555)

Tappum, son of Iarbi-ilu, "has bought two _GAN_ of field, in the Isle, next to the field of ?asri-kuttim, and the field of Sin-abushu, son of Ubar-Ishtar, from Salatum, daughter of Apilia, the _GI-A-GI_ (?) and has paid its full price in silver. The business is completed, the contract is valid, his heart is content. In future, man with man, neither shall take exception. By the name of Shamash, Marduk, Sin-mubali? and the city of Sippara, they swore."

Then follows a list of about twenty witnesses, the names of whose fathers are also given. Usually the date is added. Here, however, it is either omitted or has been lost.

(M556) In this particular case the words within quotation marks are written in Sumerian. The variations are slight as a rule, but enough to show that the scribe understood what he wrote and could make correct changes when needful. The use of such a large amount of Sumerian in these deeds, along with Semitic names and specifications, has often been compared to the retention of Latin words in the body of legal doc.u.ments in European countries, almost to the present day. It will be noted that this portion const.i.tutes the formal body of the doc.u.ment, and might well have been kept ready written, blanks being left to fill in the names and specifications. It is not, however, easy to find proof that this was done in early times.