LECTURE I

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_.

The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples The Schweich Lectures · 第 5 / 27 题