shall pay five shekels of silver to the owner of the watering-machine.
§ 260. If a man has stolen a _shadduf_, or a plough, he shall pay three
shekels of silver.
(M198) § 261. If a man has hired a herdsman, to pasture oxen, or sheep, he
shall pay him _eight GUR_ of corn yearly.
(M199) § 262. If a man has intrusted ox or ass to ... [Passage mutilated.]
§ 263. If he has lost the ox, or ass, given to him, he shall restore ox
for ox, and ass for ass to its owner.
§ 264. If a herdsman, who has had oxen or sheep given to him to pasture,
has received his wages for the business, and been satisfied, then diminish
the herd or lessen the offspring, he shall give increase and produce
according to the nature of his agreements.
§ 265. If a herdsman, to whom oxen or sheep have been given, has
defaulted, has altered the price, or sold them, he shall be prosecuted,
and shall restore oxen, or sheep, tenfold, to their owner.
§ 266. If lightning has struck a fold, or a lion has made a slaughter, the
herdsman shall purge himself by oath, and the owner of the fold shall bear
the loss of the fold.
§ 267. If the herdsman has been careless, and a loss has occurred in the
fold, the herdsman shall make good the loss in the fold; he shall repay
the oxen, or sheep, to their owner.
(M200) § 268. If a man has hired an ox, for threshing, its hire is twenty
_ḲA_ of corn.
§ 269. If he has hired an ass, for threshing, its hire is ten _ḲA_ of
corn.
§ 270. If he has hired a young animal, for threshing, its hire is one _ḲA_
of corn.
(M201) § 271. If a man has hired oxen, a wagon, and its driver, he shall
pay one hundred and sixty _ḲA_ of corn daily.
§ 272. If a man has hired the wagon alone, he shall pay forty _ḲA_ of corn
daily.
(M202) § 273. If a man has hired a laborer from the beginning of the year
to the fifth month, he shall pay six _ŠE_ of silver daily; from the sixth
month to the close of the year, he shall pay five _ŠE_ of silver daily.
(M203) § 274. If a man has hired an artisan, he shall pay as his daily
wages, to a ... five _ŠE_ of silver, to a potter five _ŠE_ of silver, to a
tailor five _ŠE_ of silver, to a stone-cutter ... _ŠE_ of silver, to a ...
_ŠE_ of silver, to a ... _ŠE_ of silver, to a carpenter four _ŠE_ of
silver, to a rope-maker four _ŠE_ of silver, to a ... _ŠE_ of silver, to a
builder ... _ŠE_ of silver.
(M204) § 275. If a man has hired a boat, its hire is three _ŠE_ of silver
daily.
§ 276. If he has hired a fast boat he shall pay two and a half _ŠE_ daily.
§ 277. If a man has hired a ship of sixty _GUR_ he shall pay one-sixth of
a shekel of silver daily for its hire.
(M205) § 278. If a man has bought a male or female slave and the slave has
not fulfilled his month, but the bennu disease has fallen upon him, he
shall return the slave to the seller and the buyer shall take back the
money he paid.
§ 279. If a man has bought a male or female slave and a claim has been
raised, the seller shall answer the claim.
(M206) § 280. If a man, in a foreign land, has bought a male, or female,
slave of another, and if when he has come home the owner of the male or
female slave has recognized his slave, and if the slave be a native of the
land, he shall grant him his liberty without money.
(M207) § 281. If the slave was a native of another country, the buyer
shall declare on oath the amount of money he paid, and the owner of the
slave shall repay the merchant what he paid and keep his slave.
(M208) § 282. If a slave has said to his master, “You are not my master,”
he shall be brought to account as his slave, and his master shall cut off
his ear.
(M209) This is not the place to write a commentary on the Code, but there
are a few necessary cautions. One of the first is that most clauses are
permissive rather than positive. The verb “shall” is not an imperative,
but a future. Doubtless in case of heinous crimes the death-penalty had to
be inflicted. But there was always a trial, and proof was demanded on
oath. In many cases the “shall” is only permissive, as when the Code says
a widow “shall” marry again. There is no proof that the jury decided only
facts and found the prisoner guilty or not, leaving the judge no option
but to inflict the extreme penalty. The judge, on the contrary, seems to
have had much legislative power. When this view is taken, the Code appears
no more severe than those of the Middle Ages, or even of recent times,
when a man was hanged for sheep-stealing. There are many humanitarian
clauses and much protection is given the weak and the helpless. One of the
best proofs of its inherent excellence is that it helped to build up an
empire, which lasted many centuries and was regarded with reverence almost
to the end.
III. Later Babylonian Law
(M210) Very little is yet known regarding later Babylonian law. Dr. F. E.
Peiser published in the _Sitzungsberichte der Königliche Akademie der
Wissenschaften zu Berlin_ (1889, pp. 823 ff.) a very interesting
fragmentarily preserved text (82-7-14, 988, in the British Museum), which
contains either a collection of abstracts of cases which have been
decided, or precedents, or else an extract from some code later than that
of Ḥammurabi. Dr. Peiser thought that the date was the second year of
Ashurbânipal, king of Babylon. This seems rather unlikely, but may, of
course, be true.
In his inaugural dissertation, Dr. Peiser, under the title of
_Jurisprudentiae Babylonicae quae supersunt_, commented upon and
illustrated the above text by numerous examples of cases, actually
occurring during the period of the second empire. But the whole collection
of fragments of law with which he had to deal was too small to do more
than show what may be hoped for as the result of future discoveries.
As specimens of these laws we may take the following:
(M211)
Law A. [Col. II. 4-14.]
The man who has sealed a tablet, by the name of another, in favor
of an owner of a field, or has sealed a bond, and has not caused
to be executed a deed giving him power of attorney, or has not
taken a duplicate of such a tablet [cannot take possession]; the
man, in whose name the tablet, or bond, is written, shall take
that field, or house.
If a man acted as buyer, or lender, for another, he incurred liabilities,
for which he could not indemnify himself, unless he had secured from his
principal a deed empowering him so to act. But, if without such power of
attorney, A had acted for B, and bought a house, or field, of C, and had
the conveyance made out to B, of course paying C; or had lent money to C,
in the name of B; and the transaction had been completed, by sealing the
deed of sale or bond; then B was the owner of the field, or house, or the
creditor for the loan. A could not plead that he was the real owner, even
if he had not been able to recover the purchase-money or loan from B, in
whose name he had made it. B, whose name appeared in the deed or in the
bond, was the rightful owner.
(M212)
Law B. [Col. II. 15-23.]
The man, who has sold a female slave and has had an objection made
concerning her, shall take her back. The seller shall give to the
buyer the price named in the deed of sale, to its exact amount,
and shall pay half a shekel of silver for each of the children
born to her.
How long after sale objection could be raised is not stated. In early
times a month was allowed for fever to develop; in Assyrian contracts a
hundred days were allowed for fever or seizure. But a _sartu_, or “vice,”
could be pleaded, at any time, as ground for returning the slave. Here it
is clear that time was allowed for a slave to bear one or more children,
before the repudiation lost effect. It is noteworthy that the seller had
to buy back such children. The maid may have been bought to bear her
master children, and if these were not sound, the master had ground for
complaint and could not be held responsible for them. Also it was
objectionable to separate mother and children. The price named is
trifling. Compare § 278 of the Code, where, however, no mention is made of
the children of a maid.
The next law is unintelligible at present, owing to the _lacunae_, and
doubtful readings of the text, which, moreover, is only given in
transcription. It appears to concern a woman and her interests in a field
or plantation and the trees in it, and its produce.
(M213)
Law C. [Col. III. 3-15.]
A man has given his daughter to a freeborn man and the father has
fixed something in a deed and given to his son, and the
first-named has fixed a marriage-portion for his daughter and they
have mutually executed deeds of settlement. They shall not alter
their deeds. The father shall give in full the settlement
(_nuṣurru_), which he had promised his son by deed, to the
father-in-law, and deliver it.
The father here named appears to be the father of the bridegroom. He must
make a settlement on his son, as well as the father of the bride on his
daughter. The point of the law seems to be that these settlements on the
part of the parents to the young couple are irrevocable. No subsequent
engagements entered into can affect them. This settlement by the
bridegroom’s father on his son, which he has to pay over to the bride’s
father, evidently takes the place of the _terḫatu_, or “bride-price” of
the Code. The obligation of a father to find his son the means for a
bride-price appears in the Code, § 166; but there is no section which
answers directly to this law. The marriage-portion is now _nudunnu_, in
the Code it was _šeriktu_, while _nudunnu_ was the husband’s gift to the
wife.
(M214)
Law D. [Col. III. 16-22.]
When the father [of the bridegroom] has had his wife taken away by
fate, has taken to himself a second wife, and she has borne him
sons, the sons of the second wife shall take a third of his
property remaining.
This appears as part of the same section as Law C, and is enacted again in
Law K, page 69. It is not easy to see why it is here, except to make plain
that settlements on marriages of the sons of the first family are a first
charge on the father’s property. The second family takes a third, not of
all the father once had, but of what is left after these gifts by deed
have been taken out. The married sons of the first family are not
disinherited by virtue of these gifts, but take among them two-thirds of
what is left. This is against the Code, § 167.
(M215)
Law E. [Col. III. 23-31.]
A man who has promised a marriage-portion to his daughter, or has
written her a deed of gift, and afterward his means have
diminished, shall give to his daughter a marriage-portion
according to his means that are left. Father-in-law and son-in-law
shall not quarrel one with the other.
Dr. Peiser has shown that the marriage-portion was often held back a long
time. Suits were brought to recover it from fathers-in-law. There is no
corresponding section in the Code.
(M216)
Law F. [Col. III. 32-37.]
A man has given a marriage-portion to his daughter and she has
neither son nor daughter and fate has carried her off; her
marriage-portion returns to her father’s house.
Exactly as in the Code, § 163.
The first seven lines of Col. IV. are too fragmentary to give a connected
sense, but are still concerned with the marriage-portion.
(M217)
Law G. [Col. IV. 8-24.]
A wife, whose marriage-portion her husband has received, who has
no son or daughter, and fate has carried off her husband, shall be
given from her husband’s property the marriage-portion, whatever
that was. If her husband has made her a gift, she shall receive
the gift of her husband with her marriage-portion and take it
away. If she had no marriage-portion, the judge shall estimate the
property of her husband and, according to her husband’s means,
shall grant her something.
It is noteworthy that in the above laws the old usage is reversed. Now the
_nudunnu_ is the marriage-portion, given with the bride, and the _šeriktu_
is the husband’s assignment to the wife. With this alteration the law
agrees with the Code, § 171. But there she has a family.
(M218)
Law H. [Col. IV. 25-45.]
A man has married a wife and she has borne him children; after
that man has been carried off by fate, and that woman has set her
face to enter the house of another, she shall take the
marriage-portion which she brought from her father’s house, and
whatever her husband presented her as a gift, and shall marry the
husband of her choice. As long as she lives, she shall enjoy food
and drink from them. If there be children of this husband, they
and the children of the former husband shall share her
marriage-portion. The sisters....
This is practically the same as Code, § 170, but it is differently
arranged and the phrases differ markedly. Note that the sisters were
separately treated.
(M219)
Law K. [Col. V. 33-46.]
A man has married a wife and she has borne him children, and fate
has carried off his wife; he has married a second wife and she has
borne him children; after the father has gone to his fate, the
children of the former wife shall take two-thirds of the goods of
their father’s house, the children of the second wife shall take
one-third. Their sisters who are dwelling in their father’s
house....
This must be contrasted with § 167 of the Code. There all sons share
equally. Here the first family take two-thirds. The sisters were also
treated separately. It is clear that we have to do with a code which
preserves many features of the early times, but has many new features of
its own. It is greatly to be desired that further portions should be
published.
IV. The Social Organization Of The Ancient Babylonian State
(M220) The State appears in the light of the Ḥammurabi Code to have been
composed of three great classes, the _amêlu_, the _muškênu_, and the
_ardu_. To the first class belonged the king and the chief officers of
state, and also the landed proprietors. Their liabilities for fines and
punishments were higher. Also in their case the old law of “eye for eye,
tooth for tooth” still held; while others came under a scale of
compensations and damages. This may point to a racial difference. The
ancient laws of Arabia may have been carried with them by Ḥammurabi’s
tribal followers, while the older subject-residents accepted the more
commercial system of fines. The old pride of the Arab tribesman may have
forbidden his taking money as payment for his damaged eye, or tooth. But
the _muškênu_ was more “humble,” as his name denotes, and may well have
formed the bulk of the subject-population. He was a free man, not a
beggar. He was not without considerable means, as we see from the sections
referring to theft from him. He had slaves,(62) and seems to have been
liable to conscription. His fees to a doctor or surgeon were less than
those paid by an _amêlu_. He paid less to his wife for a divorce,(63) and
could assault another poor man more cheaply than could an _amêlu_. There
can be no doubt that the _amêlu_ was the “gentleman” or “nobleman,” and
the _muškênu_ a common man, or poor man. But the exact force of the terms
is uncertain.
In process of time _amêlu_ came to be used, like our “sir,” and even
“esquire,” of those who had no special qualifications for the title. Like
the “gentleman’s gentleman” of the servant’s hall, he was only a
respectable person. So, even in the Code, _amêlu_ usually means no more
than “man.” It already appears as a mere determinative of personality in
the titles of laborers and artisans,(64) when it cannot stamp them as
landed proprietors. But it may mark them as members of the guilds of
craftsmen and recall the respect due to such. If, however, we press this,
we must admit a guild of day laborers.
There is no suggestion of any legal disability on the part of a _muškênu_;
he is merely a person of less consideration. Whether or not his ranks were
recruited from the children of slaves by free parents is not clear, but it
is very probable that they were.
The slave was at his master’s command and, like a child in his father’s
house, to some extent a chattel. He could be pledged for debt, as could a
wife or child. He was subject to the levy,(65) and his lot was so far
unpleasant that we hear much of runaway slaves. It was penal to harbor a
slave, or to keep one caught as a fugitive.(66) Any injury done to him was
paid for, and his master received the damages.(67) But he was free to
marry a free woman and the children were free. So a slave-girl was free on
her master’s death, if she had borne him children; and the children were
also free. He was subject to mutilation for assaulting a free man, or
repudiating his master.(68) But his master had to pay for his cure, if
sick.(69) He was not free to contract, except by deed and bond.(70) Yet he
and his free wife could acquire property, half of which would fall to his
wife and children on his death.
(M221) The Code reveals the existence of a class of men, who were indeed
known from the letters of Ḥammurabi and the contemporary contracts, but
whose functions are not easy to fix. They were the _rîd ṣâbî_ and the
_bâ´iru_. By their etymology these titles seemed to mean “slave-driver,”
and “catcher.” But the Code sets them in a clearer light. They were
closely connected, if not identical, officials. They had charge of the
levy, the local quota for the army, or for public works. Hence
“levy-master” and “warrant-officer” are suggestive renderings. For the
former official, “taskmaster,” the one over the gang of forced laborers
and reminiscent of the old time press-gang officers, is a fair
translation. “Field cornet” would perhaps suit the military side. For some
aspects of their office the ancient “reeve” may be compared. Whether the
“catcher” actually was a local policeman, whose chief duty was to
apprehend criminals and reluctant conscripts, is not yet clear. The same
name is used of “fishermen,” who were “catchers” in another sense, and of
hunters. A really satisfactory rendering is impossible, as we have now no
officials whose duties actually correspond to theirs.
(M222) Each of these officials held what may be called a benefice, or
perhaps a feoff. It consisted of land, house, and garden, certain sheep
and cattle as stock, and a salary. It was directly ascribed to the king as
benefactor. We may compare the Norman lords settled in England by the
Conqueror, or the Roman soldier-colonists. The men may well have been the
followers of the first founder of the dynasty. In a very similar way the
Chaldean conqueror, Merodach-baladan II., long after, settled his Chaldean
troops in Babylonia. We may regard these men as retainers of the king, and
probably as originally foreigners. The benefice was held by them for
personal service. They were to go “on the king’s errand” when ordered. It
was a penal offence to send a substitute.(71) The errand might take them
away from home and detain them a very long time. In such enforced absence
the official might delegate his son to take his place and carry on his
duty.(72) This implies that there was a local duty besides the personal
service. Further, this needed a grown man to discharge it.(73) The _locum
tenens_ enjoyed the benefice,(74) with a reserve of one-third for the wife
to bring up the children of the absent official. An official by neglecting
the care of his benefice ran the risk of forfeiture.(75) This came about
by his absence giving the _locum tenens_ opportunity to acquire a
prescriptive right, which he might do in three years, if he showed himself
a more worthy holder. But this was only if the absentee had been
neglectful, and a one-year tenancy conferred no such right.(76)
(M223) The service on which the official might be engaged was evidently
military and had risks. It is not certain whether the _dannatu_(77) is
really a “fortress,” or a “defeat.” The word has both meanings. It does
not really matter. Either way the official is captured by the enemy of the
king. He was bound to pay for his own ransom, if he had the means; or if
not, his town must ransom him and, failing that, the state. But he could
not raise money on his benefice. Moreover, while it could descend to his
son, it was inalienable. No diminution by bequest to his female relatives,
no sale of part of it, no mortgage on it, nor even its exchange for other
like estate, was allowed.
Further, the official and his benefice were protected. He could not be
hired out by his superior officers, nor in any way plundered or oppressed.
He held tax free, subject only to his feudal duty.
(M224) In some cases the tributary there is associated with these two
officials. No duty is set down for him, beyond that implied in his name of
paying a tribute. It is not clear that all land was held on one or the
other scheme, but it is so in parts of the East still. Some land is held
by personal service, some on payment of a tax. This tax later became the
tithe. The personal service was later compounded for by furnishing a
soldier or two for the army. The liability to serve in the levy continued
to be borne by slaves and the lower classes.
(M225) That all land did owe either personal service, or tax, is probably
to be deduced from § 40, where we read that though a levy-master,
warrant-officer, or tributary could alienate nothing of their holdings,
other land-owners could do so. But they did so subject to the buyer taking
over the duty, or service, of the land so transferred. One of the classes
here named, the votary, appears subject to service elsewhere. The votary
of Marduk is expressly exempt from this service.(78) The merchant, who
represents another class, appears very often to have been a foreigner,
only temporarily resident in the country.
(M226) The votary was already known to us from the contracts, but there
was little to fix her functions. As seen in the Code, she was a highly
favored person. Vowed to God, usually to Shamash at Sippara, or Marduk at
Babylon, there seems little to connect her with the prostitute-votaries of
Ishtar at Erech. She ordinarily lived in the convent, or “bride-house” of
Shamash. She was given a portion, exactly like a bride, on taking her vow
and becoming the “bride” of Shamash. But her property did not go to the
convent. At her father’s death, with her consent, her estate might be
administered by her brothers, or she could farm it out. At any rate, she
was provided for during her lifetime. But at her death, unless her father
had specially given her power to bequeath it, her property went back to
her family. She was not, however, doomed to spend all her days in the
convent. She could leave it and even marry. But she was expected to
maintain a high standard of respectability. For her to open a beer-shop or
even enter one for drink was punished by burning. She remained a virgin,
even if married. She could have no children and must provide her husband
with a maid, if he wished to have a family. But she was carefully guarded
from any reproach as childless. She ranks as a married woman, even if
unmarried, and is protected from slander. Many noble ladies, and even
kings’ daughters, were votaries.(79)
(M227) The merchant continually appears. Some passages suggest that he was
a state official. But this is really pressing far the interest which the
state took in him. He was, doubtless, like the Jew of the Middle Ages, a
valuable asset to the king. He seems to have been the usual moneylender,
so much so that in many places “merchant” and “creditor” are
interchangeable. A man is usually said to borrow of “his merchant,” as we
say “of his banker.” Doubtless, the king also borrowed from him. It is
certain that the Code was very lenient to him. But the merchant also did
business in the way of ordinary trade. As a capitalist he sent out his
travellers and agents with goods far and wide, even into domains where the
king’s authority did not reach. Much of the Code is occupied with
regulating the relations between the merchant and his agent. The agency
was that form of _commenda_ which is so characteristic of the East at the
present. The agent takes stock or money of his principal, signs for it,
agrees to pay so much profit, and goes off to seek a market, making what
profit he can. There is much to suggest that the merchant was not usually
a Babylonian. In later times, the Arameans were the chief merchants, and
travelled all over Mesopotamia, Palestine, Syria, and into Asia Minor.
V. Judges, Law-Courts, And Legal Processes