Entailed property
The amount of land might be increased by purchase, but there is a strong presumption that it thus became family property and did not remain at the disposal of the buyer. For if so, in the case above the law should have stated that the parent could not donate land that was family property, but might do so with what he had bought. This does not exclude the possibility of sale. Only the family had apparently the right of pre-emption.[465]
Natural features of Babylonia in their influence on property rights
In looking back upon the primitive state of the country, its natural features must be taken into account as helping to shape the course of development. In such a low-lying country as the land between the Euphrates and the Tigris, [pg 185] floods naturally occur every year. Every spot of land that stood above the level of the annual floods was thereby marked out for a residence. Throughout the literature of Babylonia the hill or the mountain is a refuge and a place protected by the gods. But when the floods were gone, man's great need for his land was water. Hence irrigation was synonymous with cultivation. The unclaimed land grew rank with grass and natural food for cattle, but dried up to dust in the summer. Hence the control of the flood, its diversion into desired channels, regulation, storage, and all the processes implied by canals and irrigation were forced upon the inhabitants of Babylonia by stern necessity. The only alternative was to migrate with flocks and herds to higher lands when the floods came.
Primitive land tenure
Settled society was ultimately founded upon the cultivation of a plain. Every eminence might become a hamlet occupied by the abodes of men, whose fields were water meadows. The meadows which grew their corn lay around the village and below its level; and beyond those which were needed to grow crops lay the pastures. But for security the cattle and sheep must come back, before the floods came, to the village, there to be folded and fed, as it seems, upon straw and also grain. The land of the village extended itself in time, as the population grew and needed more corn. More and more of the unreclaimed land beyond the cornfields was brought into cultivation and the flocks went farther afield for pasture. This continued until the pastures forming the outlying ring had met the pastures of another village.
Ownership of cultivated land
Such is an ideal sketch of the growth of land tenure. But in historical times this simplicity had vanished. Land was owned, not merely held. It does not appear that pasture was owned, even as late as the First Dynasty of Babylon. It seems that the flocks were confided to shepherds, [pg 186] who were bound to bring them back from the pastures and expected to account for all they took out and for a reasonable increase in the flock from breeding. The pasture was common land; at any rate, to the sheep-owners of the same village. No one claims to buy and sell pasture land, only cultivated land, fields, gardens, and plantations, ultimately irrigated land. But unreclaimed land, that is, such as only required cultivation to make it fields and gardens, is often sold, or let, to be reclaimed. Was this a trespass on the pasture held in common? If so, it was not resented as such. We do not know yet how a man acquired a title to such unreclaimed land. Perhaps to have brought it into cultivation sufficed originally to establish title.
Theoretical ownership of the land by the local deity
A settled hamlet soon had its temple. Some think that the god was ideally landlord of all the village land and that every title represented simply the rental of the land from the nominal owner. We do indeed find the temples as owners of vast estates and, like monastic institutions in the Middle Ages, letting lands and houses. To the temples poor men went for temporary accommodation for sowing, for wages at harvest-time, and for ransom from the enemy. These they had a right by custom to receive without paying interest. Undoubtedly the temples became the first centres of progressive civilization. The patêsi, as chief-priest of the god, was the regent of the community. In process of time, as villages combined and grew into towns and districts, the patêsi, in virtue of his town's supremacy, became the king, who, as regent of the state and representative of the gods, owned all. We know that, in later times, the king in Babylon was the adoptive son of Bel-Merodach.[466]