The discovery of the principal record of the system of enactments now
known by the name of the Code of Hammurabi was made in December 1901 and
January 1902.
At Susa, the ancient Persepolis, named ‘Shushan the Palace’ in the Book
of Daniel, situated in Persia, once the ancient capital of Elam, the
excavators, working under the direction of J. de Morgan for the French
Ministry of Instruction, found three large pieces of black diorite,
which when fitted together formed a monolith stela, about 2·25 metres
high, tapering upwards from 1·9 to 1·65 metres. The stone itself is in
the Louvre Museum in Paris, but a beautiful reproduction of it stands in
the Babylonian Room of the British Museum.
At the top of the stela is engraved in low bas-relief a representation
of Hammurabi himself receiving his laws from a seated god, usually taken
to be the sun-god Shamash, who was regarded in Babylonia as the supreme
judge of gods and men, whose children or attendants were Mishâru and
Kittu or Rectitude and Right.
Below this scene begins the inscription, written in Semitic Babylonian,
then called Akkadian, and arranged in parallel narrow columns. These
columns were read from left to right and downward precisely like those
of a modern newspaper, but each column goes across the stela like a
belt. Consequently a reader must turn his head on one side to read the
inscription.
On the front of the stela sixteen columns are preserved, and traces of
five more which have been intentionally erased. Analogy with similar
cases among the many Babylonian monuments found at Susa, on which the
original inscription has been partly cut out to make way for the name
and titles of Shutruk-nakhunde the king of Elam who had carried them off
as trophies of his conquests in Babylonia, suggests that a like purpose
was entertained with respect to this stela but only partly carried out.
Unfortunately a break in the text of the Code is thus caused which our
other records have only partly enabled us to restore.
The back of the stela completely preserves twenty-eight columns, except
where a few natural faults in the stone obscure the characters. The
whole inscription may be estimated as having once contained forty-nine
columns, four thousand lines, and about eight thousand words.
The characters are of an archaic type, much fancied by the kings of the
First Dynasty of Babylon, of whom Hammurabi was the sixth in succession,
and paralleled by other inscriptions of his. Thus, apart from his own
words, we can date it as a contemporary record of the text. It was
undoubtedly engraved on the stone by a stone-cutter working from a copy
of the text written on clay in the cursive script of the period. This
accounts for one or two scribal errors, which are, however, easily
detected and readily corrected.
Fragments of duplicates were also found at Susa, showing that the text
was executed in several copies, probably to be set up in different
cities. At least one fragment of a contemporary copy written on clay was
found at Nippur, showing that the text was also circulated in writing at
the time of its promulgation.
There are fragments of several copies preserved in the British Museum,
made for the Library of Ashurbanipal, king of Assyria 668-626 B.C. These
are in Assyrian script and show some variants which are useful as
synonymous renderings. From their phraseology, however, DR. BR.
MEISSNER, who first published most of them, concluded that they were
early Babylonian laws,[7] while PROFESSOR FRIEDRICH DELITZSCH, who
commented upon them, named them the Code of Hammurabi.[8] Further, a
late Babylonian copy exists at Berlin, and was published by DR. F. E.
PEISER.[9]
These late copies show that the inscription was edited in a series of
tablets or ‘Books’ called _Ninu Anum tsirum_, from the first words of
the text, just as Genesis was called Bereshith from its first word or
other books of the Old Testament were named in the same way. Another
series was called _Dinâni sha Hammurabi_, from the first words of the
Epilogue or closing portion of the text. From these editions we may
conclude that the Code was known and studied both in Assyria and
Babylonia at least as late as the seventh century B.C. Whether any
monumental stela with this inscription survived so long after the Susa
examples had been carried off is not yet certain. But these editions are
of extreme value as indications that a knowledge of the provisions of
the Code existed so long and was preserved so accurately.
We may note that there is a very great advantage for students of this
ancient body of law in the fact that beside a long tradition accurately
preserved we have a practically complete autograph of the Code as
originally promulgated. There can be no suspicion of overwriting,
interpolation or gloss, no tendency-redaction, no revision in the
interests of any party, priestly or political. We have no need to seek
for any conjectural restoration, except for a few erased clauses or
defaced characters. We have no call to split up the text[10] into strata
as embodying older laws, though we know such earlier codes had existed
perhaps a thousand years before. A comparison with such fragments of
earlier law as we possess shows indeed much change if not always
progress in that period, and marks on the whole a great advance in
civilization.
It is a task still reserved for the students of Babylonian law to make
careful researches into the growth of social institutions and the
development of legal conceptions which led up to this Code. It will
prove a most instructive study if pursued apart from the presumptions
deduced from other and unrelated areas which now form a body of dogmatic
prejudice from which many scholars seem unable to emancipate their
thought. We must, however, start our investigations at a point where the
Code has already arrived, when it must be treated as the principal
landmark in the long history of law in Babylonia. Whatever may be our
view as to what should have been the evolution of law before that date
we must be careful to remember what that evolution produced.
The date of the Code, as shown by the prologue with which the text
begins, fell in the reign[11] of the great king Hammurabi, sixth king of
the First Dynasty of Babylon, whose call to the throne, successful wars,
and great benefits to his people, it sets out with magniloquent
phraseology. The list of his achievements thus given further enables us
to fix the year of its redaction as after the fortieth year of the
reign. This may, however, be the date at which our existing monument was
erected rather than that at which the Code was first promulgated. As
this king only reigned forty-three years the date is very closely fixed.
We now know some prominent event for each year of this long reign, and
by means of other inscriptions of his we can make out a fairly complete
sketch of his times for which reference must be made to the many
excellent histories of Babylonia.[12] As is well known Hammurabi has
frequently been identified with Amraphel king of Shinar mentioned in the
fourteenth chapter of Genesis as having made war on his rebellious
subjects in and around the Dead Sea area. Amraphel is there associated
with Arioch king of Ellasar, usually identified with Rîm-Sin king of
Larsa, with Chedorlaomer king of Elam and Tidal king of ‘Nations’. The
same tradition made him contemporary with Abraham, ‘father of the
faithful and friend of God’, who is said to have migrated with his
family from Ur of the Chaldees to Haran, the chief city and commercial
capital of Mesopotamia, and thence into Palestine. It is interesting to
note that it is precisely with the period of Hammurabi that Hebrew
tradition elects to link up its early memories of origins. We might then
be naturally drawn to examine the native records of the Hammurabi reign,
including its laws, simply to gain a clearer idea of the circumstances
among which Abraham was born and grew up. But there are other reasons
for our effort to study the period. As a record of early law the Code of
Hammurabi is one of the most remarkable monuments of the history of the
human race. Treated as a legal document the peculiarities of the Code
are amazing. Doubtless an expert in comparative law could have
reconstructed a large part of the Babylonian law from the many thousands
of legal documents of all periods which have come down to us. To a very
remarkable extent this has been done, especially by PROFESSOR KOHLER,
assisted or followed by PROFESSOR PEISER, PROFESSOR MEISSNER, PROFESSOR
SCHORR, PROFESSOR UNGNAD and a score more who have taken up special
points.[13] My article on Babylonian Law in the _Encyclopaedia
Britannica_ will give some idea of this work.
But while abundant evidence was available as to commercial matters, such
as the disposal of estates and other property by sale or exchange, or
their assignment by hire, lease, or hypothec, the laws of deposit and
warehousing, commenda or commission, agency, security, pledge, warranty,
the laws of partnership, rules as to debt and interest, loans with or
without security, the family laws relating to marriage, divorce,
adoption, inheritance, maintenance, &c., and many other points were made
out with great clearness, yet much remained obscure.
For the legal documents, deeds, contracts, or the like, while doubtless
absolutely clear to the contemporary parties concerned and evidently the
outcome of long-established legal practice, assumed much that could only
be conjectured from their slight hints. In my article on Babylonian Law
and in _Babylonian and Assyrian Laws, Contracts and Letters_ I gathered
up most of what was then known.
Especially was our knowledge defective in the matter of criminal law. We
had plenty of legal decisions, but they too often merely recorded the
award of the court, and even where the case in dispute was stated, the
suit was nearly always about property. We had little or no information
about such questions as murder, manslaughter, theft, adultery, assault,
and the like. The Code, with its full criminal sections, was thus doubly
welcome.
The state of society revealed, and its laws, are most remarkable. The
tribal system has disappeared. The city states with their local customs
are being welded into a unity. There is still local government and
district responsibility, but the king’s judges are over the local
elders, and there is appeal to higher courts, ultimately to the king
himself. The family is the unit, with great measure of family solidarity
and complete indefeasible right over family estate, devolving its rights
to individuals as they form new family units, but retaining rights of
reversion amounting to a strict entail.
There is a settled population, engaged in agriculture and pastoral
pursuits, yet with many industries in the hands of guilds of artisans,
recruited by adoption and apprenticeship, but largely hereditary in
families. There is a highly organized system of military service and the
_corvée_ or press-gang for public works, with a feudal tenure, alongside
tenure on payment of tithes and temple dues, and the metayer system by
which the landlord found cattle, agricultural implements and seed for
culture of the fields. Estates bore permanent responsibilities which
went with the land to furnish military service, produce, supplies, &c.,
to the state. Other estates were held of the king, on rent or tribute,
the usual lot of conquered territory. There was a numerous and wealthy
body of merchants who were also bankers or money-lenders and much
controlled by the Code, especially in the interest of the poorer
debtors. They were also afforded state protection and their canvassers
carried trade far and wide to every quarter. There was a highly
developed and rapid postal or messenger system, of which many beside the
king availed themselves.
The land was full of populous towns with fixed areas of dependent
villages, remnants of the old city states, now conterminous over the
whole kingdom; counties we might call them, parishes and boroughs. There
were still traces of borough law, but the Code was supreme and the
king’s justice ran everywhere. Temples, mansions, farms, plantations,
common pasture, feudal estates, existed alongside private ownership in
land.
The state of society bears surprising likenesses to that of Europe in
the Middle Ages.
The law itself is no less advanced. Justice has replaced vengeance.
Self-help is restrained, if not suppressed; wrong must be redressed at
law. There is full protection for the weak, the widows and orphans, as
the lawgiver himself points out with pride. Women are placed in a
position of freedom and independence of their husbands, such as they
have only enjoyed in our land since the Married Women’s Property Acts.
Education was at such a high pitch that Hammurabi assumes that every
injured person would come and read for himself the laws that applied to
his own case, or at least find a neighbour who could do so.
The nature of the legislation is no less surprising from a comparative
point of view.
In many respects we find the most extraordinary medley of ancient and
modern laws. To take but one or two examples. A belief in witchcraft is
not avowed, but recognized as demanding regulation; while purgation of
the charge is referred to ordeal by water, such as lingered on so long
in Europe.
The extraordinary confidence in the power of the oath to secure truthful
witness is remarkable; but has not died out of our law courts yet. The
purgation by oath is in the Saxon form, and applies not only to things
solely within the knowledge of the accused, as loss of entrusted goods,
but also to manslaughter.
In connexion with feudal tenure we find precisely common-law dower, the
right of a tenant in fee-simple or entail to the enjoyment for her life
of a third of the undevised lands of her husband which he held in that
possession. An attentive examination of the tenure of a Babylonian
retainer of the king, who held land on military service, or other royal
service including public works, subject to strict entail unless
forfeited by failure to carry out commands, will reveal strange
likenesses to the feudal system.
The Romans have usually been regarded as inventing the institution of
the will, as Sir Henry Maine pointed out, which has played so great a
part in modern society, but like the contract, we have it in the Code
and contemporary practice in no merely rudimentary form. True that in
the Code the only case considered is where the will operates within the
family, but other cases seem to occur in practice. We find that a man
can assign even land, garden, or house by a sealed and witnessed deed to
a favourite child, and if so, when his estate is divided by his children
at his death, they cannot claim it as part of the estate to be divided;
the favoured child takes equal share with them in the estate left beside
his own special legacy. The husband too could leave property to his
wife, and she could devise it as she chose, but only to her children by
him; not to her own family, nor children by a later husband. If a father
vowed his daughter to religion, he could, by sealed and witnessed deed,
give her specific freedom of testamentary disposition of what she
received from her father as a marriage portion on taking her vows. She
had a right to a marriage portion any way, which was in lieu of a share
of her father’s estate. If she took it on marriage it was her portion
for life, and was equal to what a son would take as a son’s share at
her father’s death, but if she died childless it reverted to her family.
On taking a vow, she would have the same portion as if married, but as
she would then die childless, unless her father gave her power to
dispose of it by will, her brothers or family would resume it.
The importance of status is a well-known characteristic of certain
ancient Codes, and is often commented upon as a feature of special
interest.
The Code recognizes three grades of society by dealing with them in
separate legislation. They are called the _amêlu_, the _mushkênu_, and
the _wardu_. Etymology, analogy with other society, and above all an
attentive consideration of their treatment in the Code have made their
meaning clear. But almost every attempt to translate these words has
failed to convey exactly the true position.
The _amêlu_ was evidently a man of the predominant class, the
aristocracy, probably men of the conquering race, Amorites and those
admitted by intermarriage, adoption, or other custom to the same status.
We may compare their position with that of the Normans in England.
In the Tell-el-Amarna tablets _amêlu_ is still used as an official
title, the word is akin to the early Arabic _’ulu_, _ulai_, and may be
rendered ‘noble’. In accordance with this usage, in Babylonia, the king
or his minister is often addressed in letters of the First Dynasty
Period, in courteous phrase as the _amêlu sha Marduk uballitsu_, or ‘the
_amêlu_ to whom may Marduk grant life’. The king was thus regarded as
the First Gentleman of Babylonia. Often _amêlu_ has to be rendered
‘official’. But even in Hammurabi’s time, it was extended like our words
Sir or Esquire to mark every person of position, not otherwise titled.
It was accorded to many professions, even to craftsmen and artisans; but
was as respectful as our Mr. Dean or Mr. Archdeacon, survivals of
Magister or Master. Even in the Code it might denote ‘a man’ simply, and
cover the second grade where the law recognized no difference of rank or
status. When the law says, ‘if a man accuse a man,’ it uses _amêlu_ for
‘man’. Hence we may render _amêlu_ by ‘gentleman’ when he is contrasted
with other grades, but ‘man’ simply when no reference to grade is
contemplated.
When on military service, the _amêlu_ was an ‘officer’, having under him
smaller or greater bands of commoners, slaves, or tributaries.
He was often a person of wealth, as well as position and birth, but
might be poor, through misfortune, debt, or misconduct. For the most
part he was of the Amorite stock, though so many bear genuine old
Semitic Babylonian names that we may assume that old families of wealth
and position from among the conquered had been admitted to the ranks of
the _amêlu_, doubtless through intermarriage. The _amêlu_ dwelt often in
a mansion or palace, literally great house, _êkallu_, the Hebrew
_hekal_. Such palaces are mentioned as being built for men who certainly
were not kings, nor even princes of royal stock. Hence, we may observe
in passing, the slave of the palace (§§ 175-6) is not necessarily ‘slave
of the king’. The city governor usually had his palace or mansion.
We may conveniently render _amêlu_ by ‘patrician’; and even without
implying all that that term would mean in ancient Rome, we see traces of
a close analogy in the way in which foreigners attached themselves to
the family of the _amêlu_ to obtain privileges of citizenship.
The class which has given most trouble to realize was called the
_mushkênu_. PROFESSOR SCHEIL, followed by DARESTE, _Journal des Savans_,
rendered the ideographic signs used in the Code, MASH-EN-KAK, by
‘noble’, not recognizing the Babylonian rendering first pointed out in
print by PROFESSOR ZIMMERN[14] as _mushkênu_, but already known to me
and underlying my first translations. The word _mushkênu_ passed into
Hebrew as _miskên_, and later into modern languages—Italian _meschino_,
_meschinello_, Portuguese _mesquinho_, French _mesquin_—naturally, with
modifications of meaning. Its derivation suggests the meaning of
‘suppliant’, from _kânu_, ‘to bow,’ and points to a position of
inferiority, if not dependence. It had already been recognized that he
was less fined for misdeeds, which evidently suggested the rendering
‘noble’. But as it turns out, Hammurabi was more severe in his
punishment of the aristocracy than of the poorer or inferior class. On
the other hand, while the proud patrician insisted on exact retaliation
for his injuries, ‘eye for eye’, ‘tooth for tooth’, ‘limb for limb’, the
_mushkênu’s_ injuries were assessed for pecuniary compensation. He was
expected to accept a less primitive award, pointing to a more civilized
state. The difference in treatment suggests difference of race. They may
well have been the subject race, common people without rights of
citizenship. There was a quarter in Sippara, the _mushkênutu_, where
this people dwelt apart from the houses, with their gardens and broad
streets, occupied by the patricians. This also points in the same
direction. We know that the guilds each occupied its own quarter, as in
many mediaeval cities, but these had already won, or never lost, the
right to rank as _amêlu_.
The _mushkênu_ was not necessarily poor, for (§ 15) he had slaves and
goods. The earliest copy of the Code sometimes gives _amêlu_ where the
later reads _mushkênu_. MÜLLER had called him an _Armenstiftler_, but
there is no trace of his receiving a pension. KOHLER, PEISER, and UNGNAD
call him _Ministerial_, but adduce no evidence that he had any special
relation to government or clergy. HOMMEL thought him a dependant of the
priests, comparing the Hebrew Cohen.
The word, as MR. COMBE has shown in _Babyloniaca_,[15] is found in
Arabic—_masâkîn_, used of those who are not _sâdèh_ (plural _sayyid_)
descendants of the Prophet; nor _mashayikh_, ‘nobles’, affiliated to the
family of the Prophet; nor _gabâyil_, ‘secular nobles’; but including
the ‘labourers’, ‘workers’, ‘merchants’, ‘schoolmasters’, ‘sycophants’,
and ‘mendicants’. They are unable to carry arms, have no organization,
and are entirely under the domination of the nobles. They cannot in any
case change their condition. This seems to have been their exact
position in ancient Babylonia also, at any rate in somewhat later times.
The _mushkênu_ may have descended to a lower position in Babylon, for
the phrase, _ana mushkênûti alâku_, meant ‘to go to misery’, ‘to be
ruined’. We may even note steps in this degradation. In the
Tell-el-Amarna tablets, Amenophis king of Egypt answers the letter of
Kadashman-Ellil, the Kassite king of Babylon, who had inquired after his
daughter the princess Tsukhartu, one of the Egyptian king’s matrimonial
alliances. The Babylonian king says that Amenophis had had his sister to
wife, but no messenger of his had ever been able to converse with that
princess, or to know whether she was alive or dead. They had indeed seen
a certain lady, but whether she was the daughter of some _mushkênu_ they
could not tell. They hardly suspected her of being a poor man’s
daughter, only of being a ‘commoner’. So too, in the days when Babylonia
was subject to Assyria, the Babylonians complained that they were being
treated as _mushkênu_, not surely as poor men merely, for the obvious
answer would be to increase their taxes, but as inferiors subject to
indignities.
At any rate, in Hammurabi’s Code they are free and possess moderate
means, but are inferior persons to the _amêlu_, yet superior to the
slave.
We see that these poor men fell later into still more abject conditions.
In the later texts it is usually their weakness, helplessness, and
poverty that is dwelt upon.[16]
Hence my first rendering was ‘poor-man’, but later I preferred to use
‘plebeian’, to which view most scholars have now come round.
The slave, _wardu_, was often spoken of as ‘a head’, as if he were a
chattel, or a mere animal. He was perpetually changing hands, being sold
or pledged (§§ 118, 147). Any damage done to him had to be paid for, but
the compensation went to his master (§§ 213, 214, 219, 220). If he
repudiated his master’s rights to his service, he was punished by
mutilation. It appears that his master had no power to kill him, but he
could brand him and put fetters on him. Yet the slave could acquire
wealth and often acted in business as a free man, but his master had
control of his actions and took a share of his profits. If he was living
in his master’s house, he could not buy or sell except by written
authority from his master (§ 7). Many slaves, however, married and had
homes of their own. The master might act as patron and recover debts for
them. Presumably they could not plead in Court, though they were called
on to bear witness.
A slave, who married one of his master’s slave girls, or for whom, as
often was the case, a master bought a slave girl to be wife, was usually
provided with a house to live in and often with furniture, such as would
not disgrace a freeman’s home. Here he lived as a simple poor worker.
His master usually respected his rights, fed him and clothed him in
return for his service and treated him as a poor subject brother. When
the master thus set up a slave for life, with wife, house, and home, he
often laid it down that the slave should clothe and feed himself
henceforth, and specified the extent of service which he would demand.
Clearly such was a very modified slavery. Slaves do not seem to have
often been retained living in the house long after they grew up to
manhood. On the other hand, slave girls and women were kept in the
master’s house. A master often made a slave girl mother of his children.
But if so, these children were not born to slavery, but if acknowledged
became legitimate heirs to the master’s estate, and if not, were at
least free, and the slave mother was freed when the master died. There
is no suggestion that a Babylonian master claimed any rights over the
slave wife of his slave, beyond some share in such work as weaving and
perhaps a few household duties.
The slave who lived in his own house, if active and industrious, might
soon acquire wealth, or he might inherit it from relatives. Hence, he
might aspire to marry a free woman. In that case, if he remained a
slave, his master took one half his property at death and the other half
went to his free wife and her children who also were free. Such a free
wife of one who was still a slave might bring her marriage portion,
inherit property, &c. In fact she forfeited none of the rights of a
free woman by marrying a slave man. Doubtless, in many cases a master
preferred his slave marrying a free woman to having to purchase a slave
girl for him. He had to weigh the reversion of one half his slave’s
acquired property against the value of a family of born slaves, who of
course had to be fed and clothed till they were of value for sale or
service. The humane Babylonians were strongly averse to separating a
slave mother from her children and they were usually sold in families.
The slave who did acquire wealth often bought his own freedom. The
master had to balance the value to him of the ransom paid against the
reversion of his entire property at his death. In such a case, of
course, the master fixed the price he would accept as a ransom. The
slave, however, if married to a slave wife would have to buy her freedom
also, and buy each of his slave children if he had any. The prudent
slave, therefore, married a free woman. The slave who thus acquired
freedom, if a foreigner, might return to his own land, or join the ranks
of the poor men who were free. He would thus become a _mushkênu_. This
and similar considerations have led several scholars to translate
_mushkênu_ by ‘freedman’. But a freedman is not necessarily a slave who
has bought his freedom, but solely one who has been freed. The
distinction is essential because slaves were often freed for other
reasons.
A large number of slaves were freed by adoption into the ranks of the
_amêlu_. A Babylonian father usually portioned off his sons and
daughters on their marriage. The sons, later, at his death, also shared
what he had left. Daughters had no further share. As long as the father
lived, if he fell into poverty or weak health his sons and daughters
naturally were supposed to maintain and care for him. But they might
agree that he should adopt a new son or daughter, to whom he would leave
his residual estate, in return for maintenance and care as long as he
lived. We have spoken of a father, but _mutatis mutandis_ a mother could
do likewise. Some scholars think that most of the cases of adoption
known to us are examples of a father adopting his natural sons by slave
girls. But the adoption is usually accompanied by a ceremony of
purification, symbolizing the emancipation from the taint of slavery.
This would not be necessary in the case of a natural son of a patrician
father. He was free any way at his father’s death, even if not
acknowledged as heir. Now in all these cases of adoption of a child to
care for one’s old age, we can presume that the adoptive parent is
childless, as in the frequent cases of adoption by votaries, or else
bereft of children by agreement with the grown-up family, who willingly
resigned their reversion to the parent’s estate in exchange for freedom
from the care of their aged parent. In some cases, the adoptive parents,
hitherto childless, adopt a child with the proviso that if hereafter
they do have begotten children, the present adopted one should rank as
eldest son or daughter of the family. Many children were also adopted
with the consent of their real parents, who were usually paid. This in
some respects was a sale by free parents of their children. They had the
right to sell a child to be a slave, but this was a sale to be son or
daughter in freedom and was often a wise provision for that child’s
future on the part of needy parents.
The distinctive character of the slave is that he is fatherless by
status. It is usual in legal documents to name the father and often the
grandfather of the free contracting parties, the witnesses, judges,
scribes, &c. No slave, unless we reckon as such a freeman temporarily
reduced to slavery, is ever given as son of So-and-so. In fact, ‘the
sons of fathers’, _mâr banûtu_, such as were the _amêlu_ and _mushkênu_,
are very clearly men of birth. Their birth, marriage, and death were
registered and recorded, so that it was easy to trace family descent for
many generations. Enough documents are still preserved to us to compile
some family trees for a hundred years or more. But a slave was without
family. He was even forbidden in some cases to inquire into his real
descent. The family honour was very strictly guarded.
But though occupying so low a grade of society, we have seen that slaves
could rise not only to freedom but become adopted into the patrician
ranks. This privilege might be forfeited and the slave might be again
enslaved without hope of emancipation. There was a mark of the slave
which was put upon him by a _gallabu_, the barber and surgeon. Some
maintain that this mark was a shaving of the head or forelock in a
peculiar way. The slave would thus betray his condition, much as a
convict does. But this would be soon outgrown and the slave mark was
sometimes an irradicable mark; it is referred to as on the arm, and the
surgeon could remove it. So some rather think of a tattooed mark. A
barber might be induced by a fraudulent possessor of a slave to remove
his old slave mark, but if he could be shown to have done this wittingly
he lost his hands. If he could prove his innocence of collusion he was
released on oath, but the fraudulent owner was treated as a
slave-stealer and put to death. If a slave ran away and was caught, his
captor was bound to carry him back to his owner, and was then rewarded
by statute with a payment of two shekels (§ 17). If the captor kept him
hidden in his own house and did not give him to the town crier he was
treated as a slave-stealer and put to death (§ 15). If the slave broke
away from his captor, the latter had to swear to his non-complicity in
the escape and was then free of blame. The slave was not kept in
confinement as a rule; he might freely go about the city, and was
usually completely trusted to do errands, but he could not leave the
city without his master’s consent. If a fugitive slave was captured and
would not name his master, he was to be taken to the palace or
governor’s house and there put to the question, and if possible restored
to his owner. If such could not be found, the slave was added to the
public slaves, available for the _corvée_. Harbouring a fugitive slave
was punished with death. The slave when recovered by his master might be
put in chains.
The slave ranks were recruited principally by captives taken in war. But
there was regular slave trading. A great many slaves were bought of
dealers. After a great battle many prisoners were sold publicly. It is
interesting to note that the Code contemplates slave dealers often
offering for sale in Babylonia slaves whom they had bought abroad. Such
might include slaves captured, stolen, or fled from Babylonia, and even
Babylonians themselves. If a Babylonian recognized his lost slave
offered for sale the law insisted that the dealer should take just what
he had paid for the slave abroad. He had to state this price on oath. On
the other hand, a Babylonian captive bought abroad and offered for sale
in Babylonia was to be set free. So a slave merchant made no profit on
any one who had once been in Babylonia before, scarcely an encouragement
to rescue Babylonians by buying them in foreign lands. But the slave
dealer was sure of his price for both. For the feudal tenant who had to
perform military service, and therefore was most likely to be captured
abroad, was to be ransomed whenever possible by his own family, if not
by the local treasury, the temple; if that was too impoverished, he
would be ransomed by the State (§ 32).
Of course, a very large part of Hammurabi’s Code, as may be expected,
deals with matters which primarily concerned the state of society in
Babylonia in his day. Much of this was quite unlike the state of society
for which the Laws of Moses were promulgated. Deeply interesting as such
sections are for the early history of human institutions, we must set
them aside if we are to confine our investigations within reasonable
limits. Suffice it now to repeat the opinion that the Code is one of the
most important documents ever recovered to elucidate ancient history.
For this contribution to knowledge the histories of Babylonia may be
consulted, for its contribution to the study of ancient law the works of
PROFESSOR KOHLER and PROFESSOR SCHORR, and their bibliographies are
most valuable.
It is, however, clear that the Code did not aim at legislating for
everything that could occur. It says nothing about murder. That was
evidently left to be dealt with by well-established custom. Only it
interferes to protect the man, who in a quarrel and evidently in danger
of his own life should strike a fatal blow. He was allowed to purge
himself by oath that he did not mean to kill. Further it passes sentence
of death on the wife who procures her husband’s death for love of
another man.
What the custom was with respect to deliberate premeditated murder we do
not yet know. But a late text quotes as an immemorial custom at Babylon
that not even a brigand could be put to death there without trial.
The Code is a digest of customary law, a set of confirmed and enacted
precedents. It is not properly a Code in the sense of the fully
systematized _Code civile_ of France or the German _Bürgerliches
Gesetzbuch_.