Babylonians and Assyrians, Life and Customs

by A. H. Sayce

Chapter IX. The Law

Babylonian law was of early growth. Among the oldest records of the country are legal cases, abstracts of which have been transcribed for future use. The first law-book, in fact, was ascribed to Ea, the god of culture, and it was told how he had enacted that the King should deal uprightly and administer justice to his people. “If he regard not justice,” it was said, “Ea, the god of destiny, shall change his fortune and replace him by another.… But if he have regard to the injunction of Ea, the great gods shall establish him in wisdom and the knowledge of righteousness.”

The Ea of the cuneiform text seems to be the Oannes of the Chaldean historian Berossos, who was said to have risen out of the waters of the Persian Gulf, bringing with him the elements of civilization and the code of laws which were henceforth to prevail in Babylonia. The code of Oannes has perished, but fragments of another and more historical one have been preserved to us in a reading-book which was intended to teach the Semitic pupil the ancient language of the Sumerians. The original Sumerian text is given with its Semitic equivalent, as well as a [pg 196] list of technical legal terms. “If a son,” it is said, “denies his father, his hair shall be cut, he shall be put into chains and sold for silver. If he denies his mother, his hair also shall be cut, city and land shall collect together and put him in prison.… If the wife hates her husband and denies him, they shall throw her into the river. If the husband divorces his wife, he must pay her fifty shekels of silver. If a man hires a servant, and kills, wounds, beats, or ill-uses him or makes him ill, he must with his own hand measure out for him each day half a measure of grain.”

We have already seen that the last regulation was in force up to the latest period of Babylonian history. It betrays a humane spirit in the early legislation and shows that the slave was regarded as something more than a mere chattel. It provided against his being over-worked; as soon as the slave was rendered unfit for labor by his hirer's fault, the latter was fined, and the fine was exacted as long as the slave continued ill or maimed. The law which pronounced sentence of death by drowning upon the unfaithful wife was observed as late as the age of Khammurabi. Such at least is the evidence of some curious documents, from which we learn that a certain Arad-Samas married first a daughter of Uttatu and subsequently a half-sister of his wife. In the contract of marriage it is stipulated that unfaithfulness to the husband on the part of both the wives would be punished with drowning, on the part of the second only with slavery. On the other hand he could divorce them on payment of a maneh [pg 197] of silver—that is to say, of 30 shekels apiece. Under Nebuchadnezzar the old power of putting the wife to death in case of adultery was still possessed by the husband, where the wife was of lower rank than himself and little better than a concubine. It was a survival of the patria potestas which had once belonged to him. The wife who came from a wealthy and respectable family, however, stood on a footing of equality with her husband, and he could not venture to put in force against her the provisions of the ancient Sumerian law.

Babylonian law resembled that of England in being founded upon precedents. The code which was supposed to have been revealed by Ea, or Oannes, belonged to the infancy of Chaldean society and contained only a rudimentary system of legislation. The actual law of the country was a complicated structure which had been slowly built up by the labors of generations. An abstract was made of every important case that came before the judges and of the decision given in regard to it; these abstracts were carefully preserved, and formed the basis of future judgments.

The judges before whom the cases were brought were appointed by the King, and acted in his place. They sat under a president, and were usually four or five in number. They had to sign their names at the end of their judgments, after which the date of the document was added. It is probable that they went on circuit like Samuel in Israel and the “royal judges” of Persia.

Where foreigners were involved the case was first [pg 198] tried before special judges, who probably belonged to the same nationality as the parties to the suit; if one of the latter, however, was a Babylonian it was afterward brought again before a native tribunal. Sometimes in such cases the primitive custom was retained of allowing “the elders” of the city to sit along with the judges and pronounce upon the question in dispute. They thus represented to a certain extent an English jury. Whether they appeared in cases in which Babylonians alone were engaged is doubtful. We hear of them only where one at least of the litigants is an Amorite from Canaan, and it is therefore possible that their appearance was a concession to Syrian custom. In Babylonia they had long been superseded by the judges, the royal power having been greater there from the outset than in the more democratic West, and consequently there would have been but little need for their services. If, however, the foreign settlers had been accustomed at home to have their disputes determined by a council of elders, we can understand why they were still allowed in Babylonia to plead before a similar tribunal, though it could do little more than second the decisions of the judges.

Plaintiff and defendant pleaded their own causes, which were drawn up in legal form by the clerks of the court. Witnesses were called and examined and oaths were taken in the names of the gods and of the King.

The King, it must be remembered, was in earlier times himself a god. In later days the oaths were usually dropped, and the evidence alone considered [pg 199] sufficient. Perhaps experience had taught the bench that perjury was not a preventable crime.