 
Distinction between real and personal property The idea of real as opposed to personal property is common in Babylonian law; for we notice that in the Code, while certain persons may inherit from the goods of their parents, they may not inherit land, garden, or house.463 He then had no share in his father's house; he was not one of the family. The distinction is important, for, as we shall see later, the word “house” had a wider signification than mere bricks and mortar.464 It was the ancestral estate. Over it the family had rights. It went back in default of heirs to the family of the last owner. We are therefore confronted with private ownership of land, but also with a sort of entail.
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]
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]
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
Private ownership absolute in historical periods In historical times no such conditions prevail. Doubtless the tribal ownership had become theoretically transferred to the god, or to the town. That the town had a [pg 187]
Right to retain ancestral estates Exact statements as to the rights possessed by the family to reclaim land sold by a member of the family are not to be found, but they are to be inferred with certainty from a few notices which we have. Thus,467 a man claimed a certain plot of land as ancestral domain which two others had sold. There are several such cases among the legal decisions of the First Dynasty of Babylon. In most of the Assyrian deeds of sale we have a long list of representatives of the seller, who are explicitly bound not to interfere and attempt to upset the sale.468 Their right existed or they would not be called upon to enter into a contract nor to insist upon it.
Different kinds of real property From the point of view of the ancient Babylonian, as from that of the modern lawyer, there was a great similarity about all classes of real property. The deeds of sale or conveyances, as well as the leases, treated them with much the same formula. It was the land which was the main consideration. It was as land, built upon indeed, but essentially as land, that the house was sold. The house is rarely described by what to modern views would be its most important features, the number of stories, rooms, conveniences, and the like. Instead its area was stated. This is remarkable, as we do not buy houses by the area. We [pg 188]
Terms used in descriptions of real property The plot of land was the bÎtu, Hebrew beth, represented by the Sumerian Ê. When it had the additional advantage of a house upon it, it was bÎtu epŠu, a “built-on plot.” Gradually the edifice, in towns at least, absorbed the whole significance, and in common parlance bÎtu meant a “house,” but in legal phraseology it always retained its inclusive meaning of the plot of land. Even as late as the Assyrian Empire it retained some shade of a still earlier meaning, that of a plot, parcel, or share, just what it meant when the first settlers divided the land among them. Thus one might use bÎtu of a “lot” of slaves, or of a lot of land including its slaves and cattle. That bÎtu is to be referred to a root banÛ, “to make,” may still be true, though banÛ cannot have come to mean “build” when bÎtu was formed from it. If bÎtu was originally the “house,” perhaps only a tent-house, then it could mean all that constituted the house, the man's house in a wider sense, as in tribe names, like BÎt Adini or the phrase, “House of Israel.” But bÎtu, when used of a house, does not carry with it the implication of bricks and mortar, only of a fixed site occupied for dwelling. The edifice was implied by the addition epŠu, marking the site “built upon.” So a house was “landed property”; land was of various sorts, one of which is “built on land.” To be accurate one must also specify the kind of building. [pg 189]The field was called e?lu (compare Acel-dama, “the field of blood”), denoted by the Sumerian A-ŠAG-GA. The term does not denote open waste land, but a cultivated plot. Indeed, it is probable that its Sumerian name implies “irrigation.” In any case it was fenced, if only by a raised ridge; it was cultivated and watched over; the birds were scared away, robbers and stray animals driven off. So much at least is expressed in as many words in the undertakings of tenants to treat a field properly. The field was also bÎtu as land, usually “bÎtu, so much e?lu.” The garden was reckoned as land, but here a fuller specification was needed. For a plot of land, a garden, kirÛ was not exact enough. It was usual to designate further of what sort it was, whether vegetable garden, orchard, or palm-grove. The scribe would even add “planted with such and such a crop.” The term might include vineyards. In many cases the actual number of bushes, or fruit-trees, or vine-stocks, would be named. But it was always primarily land, and as such bÎtu, with the qualifications enumerated.
Systems of land measures: (1) computation by area For land measures there were two systems in use, one purely areal, the other with a reference to the average yield. In the former case the scale of measures was discovered and formulated by Dr. G. Reisner, in the Sitzungsberichte Berliner Akademie, 1897, p. 417 f., and is completely known. In this scale 1 GAN = 1,800 SAR, 1 SAR = 60 GIN, 1 GIN = 180 ŠE. We do not know how these words GAN, SAR, GIN, ŠE were read; they may be ideograms or Sumerian words. There was also a very large measure of area, 3,600 GAN, perhaps called a karu. Mr. Thureau-Dangin has further shown that the SAR was the square of the measure GAR-DU, which seems at one time to have measured 12 U. The U is often taken to be a cubit, but seems at this time to have been nine hundred and ninety millimetres, which is sometimes called “a double cubit.” On these suppositions [pg 190]
(2) Computation by an average yield The other system applied to land the names of measures of capacity used for measuring crops. We read of so many GUR and ?A of land, where 1 GUR = 300 ?A, as shown by Dr. Reisner. We may guess that a GUR of land was so called because it took a GUR of corn to sow it, or because it yielded a GUR of corn as an average harvest. These are mere guesses and we must remain in ignorance until further evidence connects a GUR of land on one side with its length and breadth, or some other relation between the GUR and the GAN can be deduced. Then we shall want to know the size of the GUR of corn, of which at present we have no knowledge. But already in Susa a broken pot has been found with its original contents marked upon it. When others are found, from which an approximate estimate of contents can be made, and an inscription read giving the capacity, we shall be able to make a definite statement. At present the data are insufficient and what the metrologists write is only ingenious speculation.
Descriptions and plans of plots of land A piece of land had, so to speak, an individuality of its own. Once marked out, and that probably from time immemorial, it was rarely divided. It seems probable that [pg 191]
Boundary-stones These plots often bear their owner's name, and that long after he had passed away. The boundary-stones of the field were sacred. Not a few were inscribed with some sort of history of the plot. Especially was this the case when the land was granted to fresh owners, by sale, or charter. No inconsiderable portion of what we know of history is derived from inscribed boundary-stones. They are the oldest monuments and rarely deeply buried. Hence they are easy to find. They have even been brought to London, as ship's ballast, in times before they could be read. They would be invaluable, if found in situ, for a modern survey of the country and a reconstruction of its ancient history. As a rule they are splendidly preserved.
Inviolability of landmarks Encroaching on the highway In ancient days great importance was attached to their preservation. The kings taxed their powers of cursing in order to terrify men from removing their neighbor's landmark. The dangers to the stone contemplated were its removal to another place, its being thrown into the water, or into the fire, its being built into a wall,470 being buried in the dust, placed where it cannot be seen, put in a house of darkness,471 erased and overwritten with other records.472 Akin to the crime of encroaching upon old landmarks was that of building upon or otherwise encroaching on the highway. To do this might subject the builder to the danger of being [pg 192]
The king's power over land That the land was sold subject to certain territorial obligations, we can glean from many hints. One of the most important is that, when a favorite, or well-deserving official, had acquired a large estate, the king by charter granted him an immunity from these obligations. These charters were often inscribed on large blocks of stone or water-worn pebbles of great size, and seem to have been set up as boundary-stones. Some were reproduced from tablets written on clay.474 They are very numerous and in some periods of the history are the only monuments that have reached us. A glance through any history of Babylonia will show the reader how much depends on them. But here our only concern is with the light they throw on land tenure and its conditions. One of the points which at once becomes clear is that, although the king was representative of the god and titular head of all the tribes, he could not appropriate land just where he chose. Manistusu, King of Kish, when he was seeking to acquire a fine estate to present to his son, Mesilim, had to buy land at what seems to have been an average price. He paid for the land in corn at three and one-third GUR of corn per GAN, the GUR being worth one shekel of silver. This was the price. But, as was usual later in private purchases, a present to the former owner was given. The list of these presents is most interesting,—silver and copper vessels and rich vestments being the chief items. Of great importance is the reference to the leading men of each hamlet as sellers. The king's own land was a definite area, so definite as to be cited as a boundary.475
Recognition of private rights of possession A celebrated passage in Sargon's cylinder476 says, “according to the interpretation of my name, Sharru-kÎnu, righteous [pg 193]
Royal grants to temples and favorites On the other hand, we find that the kings granted large grants of land to temples and private persons. From what source these grants were made does not appear. Probably from his own personal property. The property so presented was free of imposts. But we may not assume that the king was always the poorer. The beneficiary may have bought the land and presented it to the king, to be received back free of imposts in perpetuity. Thus, Nazimaruttash479 presents a large estate to Merodach, and another to Kashakti-Shugab, his servant. Kurigalzu480 granted an estate to E?ir-Marduk for his conduct in a war against Assyria, and Bitiliashu confirmed it. A coppersmith [pg 194]
Restoration of ancestral estates The king also appears as not only confirming grants made by predecessors, but as restoring ancestral property, or temple endowments, which had come into other hands, on suit of the legal descendants of the original owners. Thus, certain land which had come into the possession of TÂrim-ana-ilishu and Ur-bÊlit-muballi?at-mÎtÛti, was claimed by [pg 195]
Granting of especial privileges A rather different grant was made by Nebuchadrezzar I. to Ritti-Marduk for his services against Elam. This faithful vassal had been governor of a district on the borders of Elam, but the privileges of his country had been much curtailed by a neighboring King of Namar. They were now restored and apparently augmented. They were, that the King of Namar had no right of entry, could not levy taxes on horses, oxen, or sheep, nor take dues from gardens and date-plantations; could not make bridges nor open roads. The Babylonians, or men of Nippur, who came to live there were not to be impressed for the Babylonian army. Further, the towns of the district were freed from dues to the Babylonian governors.496 Marduk-nÂdin-a?i in his first year remitted some obligations on an unknown estate.497
Temple endowments Of another kind are the monuments recording the actual endowments of temples by certain kings. A very fine example is the stone enclosed in a clay coffer referring to the endowments of the temple of Shamash at Sippara. It records the restorations made by Simmash-shi?u, É-ulmash-shÂ-kin-shum, NabÛ-aplu-iddina, and Nabopolassar at wide intervals. There are, however, no lands concerned.498
An illustration A very archaic tablet in the E. A. Hoffman Collection, the General Theological Seminary, New York City, published in the Journal of the American Oriental Society,499 which seems to be older than the celebrated Blau monuments and which Professor G. A. Barton would date about [pg 196]
The metayer system Land was let under a variety of systems of tenure. The metayer system was one of the most common and persistent. The use of this term is justified by the similarity of actual cases to what is known to prevail in Italy, under this name. It is a co-operative system. The landlord not only allows his land to be cultivated for a consideration, but finds the means to meet expenses. He provides bullocks, tools, seed, and many other things, according to the usage of the locality.
Illustrations from the Code In the Code of ?ammurabi we have proof of the existence of the system. A man finds500 his tenant tools, oxen, and harness, but hires him to reside on the field and do the work. Actual examples are rare among the contemporary contracts. But Amat-Shamash, a votary, let out, “Six oxen, among them two cows; an irrigator, AmÊl-Adadi; two tenders of an ox-watering machine, his nephews; three watering-machines for oxen; a female servant who tended the machines; half a GAN of land for corn-growing; to Gimillu and Ilushu-banÎ. They shall make the yield of the field according to the average (?). They shall cause the corn to grow and measure it out to Amat-Shamash, daughter of Marduk-mushallim. In the time of harvest they shall measure out the corn to Amat-Shamash.” In spite of several obscurities due to uncertain readings, which render the translation doubtful in places, this must be regarded as a good example of the kind.501 [pg 197]
From the Assyrian period There are fewer data from the Assyrian period, but the frequent loans, ana pÛ?i, without any interest, at seed-time or harvest, may be due to this relation between landlord and tenant.502
From the Persian period The best example is to be found in the time of Cyrus,503 where a certain Shul proposes to take the fields of Shamash, in the district of Birili, in the county of Sippara. It was sixty GUR of corn-land. The temple was to find him twelve oxen, eight laborers (literally irrigators), three iron ploughs, four harrows (or hoes), and five measures of seed-corn, which also included food for the laborers and fodder for the oxen. At the end of the year he was to hand over three hundred GUR of corn as the temple share. Another good example from the time of Artaxerxes I.504 relates to the assignment of two trained irrigation-oxen and seven GUR of corn for seed by a member of the MurashÛ firm to three brothers, who undertake to pay seventy-five GUR of corn per annum for three years. It does not appear that they hired the land as well. Here the hirer returns more than ten times his loan as yearly rent.
The system of shares The usual method of hiring land was on shares. The Code contemplates that this would be for a proportion fixed by contract, either one-half or one-third of the produce going to the owner, in the case of a field or irrigated meadow and two-thirds in the case of a garden.505 The difference was due to the fact that in the former case the owner furnished the land only, possibly with its water-supply; in the latter case he also furnished the plants. In the contemporary contracts we have but few cases where the crop is shared. In these cases the owner and tenant share equally.506 The tenant was also to erect a mana?tu, or “dwelling.” It was needful that he should reside on the [pg 198]
Duties of tenants The tenant, of course, was bound to cultivate the land. The duties which fell to his share were “to plough, harrow, weed, irrigate, drive off birds,”507 but these duties are but rarely stipulated. The Code protects the tenant, however,508 from any unfair compulsion in the matter, so long as the landlord gets his fair rent.
Fixed rental Fields were also let at a fixed rent, usually payable in kind. The contracts of the First Dynasty of Babylon give a large number of examples of this sort. The kinds of field are distinguished as AB-SIN, or ŠerÛ, and KI-DAN. The average rent for the former was eight GUR of corn per GAN; of the latter, eighteen GUR per GAN. The former class may include land with corn standing upon it, or simply corn-land; the latter land as yet unbroken, or fallow. The latter class seems to have been much more fertile. This rent later became more fixed because the average yield per area was set down in the lease and the yield in corn was estimated in money according to the ordinary value of corn. Thus the rent is stated to be so much money.
Improving lease Land was often let to reclaim, or plant. The Code lays down as law what was evidently a common practice. In the case of waste land given to be reclaimed the tenant was rent free for three whole years. In the fourth year he paid a fixed rent in corn, ten GUR per GAN.509 Land let to be turned into a garden was rent free for four years. In the fifth year the tenant shared the produce equally with the landlord.510 [pg 199]Contracts illustrating this form of lease are quite common in the time of the First Dynasty of Babylon.
Manorial obligations Freedom from various obligations might be granted by royal charter. In fact, it is from these charters that we know of the existence of the obligations for the most part. The land so freed was called zakÛ. Land sold is often said to be zakÛ, and we may suppose it was so because it had once been freed by charter. But this is not quite certain. The charter was granted to a person and his heirs. Doubtless, as long as they held it, it would be free, but it is not clear that they could sell it as freed forever. But we only know that some land was free. On whom then fell the obligations? So far as they were due to the king, they may have been abolished, but such obligations as repairs of the canal banks must surely have been taken up by others. If not, the granting of charters must have been a fruitful source of trouble and distress to the land.
Their basis in the obligation of fair maintenance The obligations were of various kinds. Some were directly extensions of the duty of a tenant to exercise proper care of the estate. A very prominent duty was the care of the canals. To see that they were kept in proper order was the mark of good government. To allow them to fall into disrepair was probably the result of weak government, or the exhaustion due to defeat in war. But it very soon led to the impoverishment of the country. The Code contemplates the care of the canal banks, or dikes, as the duty of the land-owner adjoining.511 It holds him responsible for any damage done to the neighbors' crops by his neglect to close a breach, or leaving the feed-pipe running beyond the time needed to water his field. But the canal was also liable to silt up or become choked with water-weeds, and the care of dredging it out was that of the district governor. He might carry out this duty by summoning the riparian [pg 200] |
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