In tracing the ancient history of Mesopotamia and the surrounding countries it is possible to construct a narrative which has the appearance of being comparatively full and complete. With regard to Babylonia it may be shown how dynasty succeeded dynasty, and for long periods together the names of the kings have been recovered and the order of their succession fixed with certainty. But the number and importance of the original documents on which this connected narration is based vary enormously for different periods. Gaps occur in our knowledge of the sequence of events, which with some ingenuity may be bridged over by means of the native lists of kings and the genealogies furnished by the historical inscriptions. On the other hand, as if to make up for such parsimony, the excavations have yielded a wealth of material for illustrating the conditions of early Babylonian life which prevailed in such periods. The most fortunate of these periods, so far as the recovery of its records is concerned, is undoubtedly the period of the Semitic kings of the First Dynasty of Babylon, and in particular the reign of its greatest ruler, Hammurabi. When M. Maspero wrote his history, thousands of clay tablets, inscribed with legal and commercial documents and dated in the reigns of these early kings, had already been recovered, and the information they furnished was duly summarized by him.[[1]] But since that time two other sources of information have been made available which have largely increased our knowledge of the constitution of the early Babylonian state, its system of administration, and the conditions of life of the various classes of the population.
[1] Most of these tablets are preserved in the British Museum. The principal?works in which they have been published are Cuneiform Texts in the British Museum (1896, etc.), Strassmaier’s Altbabylonischen Vertràge aus Warka, and Meissner’s Beitràge zum altbabylonischen Privatrecht. A number of similar tablets of this period, preserved in the Pennsylvania Museum, will shortly be published by Dr. Ranke.
One of these new sources of information consists of a remarkable series of royal letters, written by kings of the First Dynasty, which has been recovered and is now preserved in the British Museum. The letters were addressed to the governors and high officials of various great cities in Babylonia, and they contain the king’s orders with regard to details of the administration of the country which had been brought to his notice. The range of subjects with which they deal is enormous, and there is scarcely one of them which does not add to our knowledge of the period.[[2]] The other new source of information is the great code of laws, drawn up by Hammurabi for the guidance of his people and defining the duties and privileges of all classes of his subjects, the discovery of which at Susa has been described in a previous chapter. The laws are engraved on a great stele of diorite in no less than forty-nine columns of writing, of which forty-four are preserved,[[3]] and at the head of the stele is sculptured a representation of the king receiving them from Shamash, the Sun-god.
[2] See King, Letters and Inscriptions of Hammurabi, 3 vols. (1898-1900).
[3] See Scheil, Délégationen perse, Mémoires, tome iv (1902).
This code shows to what an extent the administration of law and justice had been developed in Babylonia in the time of the First Dynasty. From the contracts and letters of the period we already knew that regular judges and duly appointed courts of law were in existence, and the code itself was evidently intended by the king to give the royal sanction to a great body of legal decisions and enactments which already possessed the authority conferred by custom and tradition. The means by which such a code could have come into existence are illustrated by the system of procedure adopted in the courts at this period. After a case had been heard and judgment had been given, a summary of the case and of the evidence, together with the judgment, was drawn up and written out on tablets in due legal form and phraseology. A list of the witnesses was appended, and, after the tablet had been dated and sealed, it was stored away among the legal archives of the court, where it was ready for production in the event of any future appeal or case in which the recorded decision was involved. This procedure represents an advanced stage in the system of judicial administration, but the care which was taken for the preservation of the judgments given was evidently traditional, and would naturally give rise in course of time to the existence of a recognized code of laws.
Moreover, when once a judgment had been given and had been duly recorded it was irrevocable, and if any judge attempted to alter such a decision he was severely punished. For not only was he expelled from his judgment-seat, and debarred from exercising judicial functions in the future, but, if his judgment had involved the infliction of a penalty, he was obliged to pay twelve times the amount to the man he had condemned. Such an enactment must have occasionally given rise to hardship or injustice, but at least it must have had the effect of imbuing the judges with a sense of their responsibility and of instilling a respect for their decisions in the minds of the people. A further check upon injustice was provided by the custom of the elders of the city, who sat with the judge and assisted him in the carrying out of his duties; and it was always open to a man, if he believed that he could not get justice enforced, to make an appeal to the king. It is not our present purpose to give a technical discussion of the legal contents of the code, but rather to examine it with the object of ascertaining what light it throws upon ancient Babylonian life and customs, and the conditions under which the people lived.
The code gives a good deal of information with regard to the family life of the Babylonians, and, above all, proves the sanctity with which the marriage-tie was invested. The claims that were involved by marriage were not lightly undertaken. Any marriage, to be legally binding, had to be accompanied by a duly executed and attested marriage-contract. If a man had taken a woman to wife without having carried out this necessary preliminary, the woman was not regarded as his wife in the legal sense. On the other hand, when once such a marriage-contract had been drawn up, its inviolability was stringently secured. A case of proved adultery on the part of a man’s wife was punished by the drowning of the guilty parties, though the husband of the woman, if he wished to save his wife, could do so by an appeal to the king. Similarly, death was the penalty for a man who ravished another man’s betrothed wife while she was still living in her father’s house, but in this case the girl’s innocence and inexperience were taken into account, and no penalty was enforced against her and she was allowed to go free. Where the adultery of a wife was not proved, and only depended on the accusation of the husband, the woman could clear herself by swearing her own innocence; if, however, the accusation was not brought by the husband himself, but by others, the woman could clear herself by submitting to the ordeal by water; that is to say, she would plunge into the Euphrates; if the river carried her away and she were drowned, it was regarded as proof that the accusation was well founded; if, on the contrary, she survived and got safely to the bank, she was considered innocent and was forthwith allowed to return to her household completely vindicated.
It will have been seen that the duty of chastity on the part of a married woman was strictly enforced, but the husband’s responsibility to properly maintain his wife was also recognized, and in the event of his desertion she could under certain circumstances become the wife of another man. Thus, if he left his city and fled from it of his own free will and deserted his wife, he could not reclaim her on his return, since he had not been forced to leave the city, but had done so because he hated it. This rule did not apply to the case of a man who was taken captive in battle. In such circumstances the wife’s action was to be guided by the condition of her husband’s affairs. If the captive husband possessed sufficient property on which his wife could be maintained during his captivity in a strange land, she had no reason nor excuse for seeking another marriage. If under these circumstances she became another man’s wife, she was to be prosecuted at law, and, her action being the equivalent of adultery, she was to be drowned. But the case was regarded as altered if the captive husband had not sufficient means for the maintenance of his wife during his absence. The woman would then be thrown on her own resources, and if she became the wife of another man she incurred no blame. On the return of the captive he could reclaim his wife, but the children of the second marriage would remain with their own father. These regulations for the conduct of a woman, whose husband was captured in battle, give an intimate picture of the manner in which the constant wars of this early period affected the lives of those who took part in them.
Under the Babylonians at the period of the First Dynasty divorce was strictly regulated, though it was far easier for the man to obtain one than for the woman. If we may regard the copies of Sumerian laws, which have come down to us from the late Assyrian period, as parts of the code in use under the early Sumerians, we must conclude that at this earlier period the law was still more in favour of the husband, who could divorce his wife whenever he so desired, merely paying her half a mana as compensation. Under the Sumerians the wife could not obtain a divorce at all, and the penalty for denying her husband was death. These regulations were modified in favour of the woman in Hammurabi’s code; for under its provisions, if a man divorced his wife or his concubine, he was obliged to make proper provision for her maintenance. Whether she were barren or had borne him children, he was obliged to return her marriage portion; and in the latter case she had the custody of the children, for whose maintenance and education he was obliged to furnish the necessary supplies. Moreover, at the man’s death she and her children would inherit a share of his property. When there had been no marriage portion, a sum was fixed which the husband was obliged to pay to his divorced wife, according to his status. In cases where the wife was proved to have wasted her household and to have entirely failed in her duty, her husband could divorce her without paying any compensation, or could make her a slave in his house, and the extreme penalty for this offence was death. On the other hand, a woman could not be divorced because she had contracted a permanent disease; and, if she desired to divorce her husband and could prove that her past life had been seemly, she could do so, returning to her father’s house and taking her marriage portion with her.