(M197) § 259. If a man has stolen a watering-machine from the meadow, he

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

Babylonian and Assyrian Laws, Contracts and Letters · 第 6 / 34 段