Chapter V: A. Th. denotes a text in the Berlin Museum (3)

(M149) § 165. If a man has presented field, garden, or house to his son, the first in his eyes, and has written him a deed of gift; after the father has gone to his fate, when the brothers share, he shall keep the present his father gave him, and over and above shall share equally with them in the goods of his father’s estate.

(M150) § 166. If a man has taken wives for the other sons he had, but has not taken a wife for his young son, after the father has gone to his fate, when the brothers share, they shall set aside from the goods of their father’s estate money, as a bride-price, for their young brother, who has not married a wife, over and above his share, and they shall cause him to take a wife.

(M151) § 167. If a man has taken a wife, and she has borne him children and that woman has gone to her fate, and he has taken a second wife, and she also has borne children; after the father has gone to his fate, the sons shall not share according to mothers, but each family shall take the marriage-portion of its mother, and all shall share the goods of their father’s estate equally.

(M152) § 168. If a man has determined to disinherit his son and has declared before the judge, “I cut off my son,” the judge shall inquire into the son’s past, and, if the son has not committed a grave misdemeanor such as should cut him off from sonship, the father shall disinherit his son.

§ 169. If he has committed a grave crime against his father, which cuts off from sonship, for the first offence he shall pardon him. If he has committed a grave crime a second time, the father shall cut off his son from sonship.

(M153) § 170. If a man has had children borne to him by his wife, and also by a maid, if the father in his lifetime has said, “My sons,” to the children whom his maid bore him, and has reckoned them with the sons of his wife; then after the father has gone to his fate, the children of the wife and of the maid shall share equally. The children of the wife shall apportion the shares and make their own selections.

§ 171. And if the father, in his lifetime, has not said, “My sons,” to the children whom the maid bore him, after the father has gone to his fate, the children of the maid shall not share with the children of the wife in the goods of their father’s house. The maid and her children, however, shall obtain their freedom. The children of the wife have no claim for service on the children of the maid.

(M154) The wife shall take her marriage-portion, and any gift that her husband has given her and for which he has written a deed of gift and she shall dwell in her husband’s house; as long as she lives, she shall enjoy it, she shall not sell it. After her death it is indeed her children’s.

§ 172. If her husband has not given her a gift, her marriage-portion shall be given her in full, and, from the goods of her husband’s estate, she shall take a share equal to that of one son.

(M155) If her children have persecuted her in order to have her leave the house, and the judge has inquired into her past, and laid the blame on the children, that woman shall not leave her husband’s house. If that woman has determined to leave, she shall relinquish to her children the gift her husband gave her, she shall take the marriage-portion of her father’s estate, and the husband of her choice may marry her.

(M156) § 173. If that woman, where she has gone, has borne children to her later husband, after that woman has died, the children of both marriages shall share her marriage-portion.

§ 174. If she has not borne children to her later husband, the children of her first husband shall take her marriage-portion.

(M157) § 175. If either a slave of a patrician, or of a plebeian, has married the daughter of a free man, and she has borne children, the owner of the slave shall have no claim for service on the children of a free woman. And if a slave, either of a patrician or of a plebeian, has married a free woman and when he married her she entered the slave’s house with a marriage-portion from her father’s estate, be he slave of a patrician or of a plebeian, and from the time that they started to keep house, they have acquired property; after the slave, whether of a patrician or of a plebeian, has gone to his fate, the free woman shall take her marriage-portion, and whatever her husband and she acquired, since they started house-keeping. She shall divide it into two portions. The master of the slave shall take one half, the other half the free woman shall take for her children.

§ 176. If the free woman had no marriage-portion, whatever her husband and she acquired since they started house-keeping he shall divide into two portions. The owner of the slave shall take one half, the other half the free woman shall take for her children.

(M158) § 177. If a widow, whose children are young, has determined to marry again, she shall not marry without consent of the judge. When she is allowed to remarry, the judge shall inquire as to what remains of the property of her former husband, and shall intrust the property of her former husband to that woman and her second husband. He shall give them an inventory. They shall watch over the property, and bring up the children. Not a utensil shall they sell. A buyer of any utensil belonging to the widow’s children shall lose his money and shall return the article to its owners.

(M159) § 178. If a female votary, or vowed woman, has had given her by her father a portion, as for marriage, and he has written her a deed, and in the deed which he has written her he has not written that she may leave it as she pleases, and has not granted her all her desire; after her father has gone to his fate, her brothers shall take her field, or garden, and, according to the value of her share, shall give her corn, oil, and wool, and shall content her heart. If they do not give her corn, oil, and wool, according to the value of her share, and do not satisfy her, she shall let her field and garden to a farmer, whom she chooses, and the farmer shall support her. The field, garden, or whatever her father gave her, she shall enjoy, as long as she lives. She shall not sell it, nor mortgage it. The reversion of her inheritance indeed belongs to her brothers.

(M160) § 179. If a female votary, or vowed woman, has had a portion given her by her father, and he has written her a deed, and in the deed that he has written her has [declared] that she may give it as she pleases, and has granted her all her desire; after her father has gone to his fate, she shall leave it as she pleases; her brothers shall make no claim against her.

(M161) § 180. If the father has not given a portion to his daughter, who is a female votary, or vowed woman; after her father has gone to his fate, she shall share in the property of her father’s house, like any other child. As long as she lives, she shall enjoy her share; after her, it indeed belongs to her brothers.

(M162) § 181. If a father has vowed his daughter to a god, as a temple maid, or a virgin, and has given her no portion; after the father has gone to his fate, she shall share in the property of her father’s estate, taking one-third of a child’s share. She shall enjoy her share, as long as she lives. After her, it belongs to her brothers.

(M163) § 182. If a father has not given a portion, as for marriage, to his daughter, a votary of Marduk of Babylon, and has not written her a deed; after her father has gone to his fate, she shall share with her brothers from the goods of her father’s estate, taking one-third of a child’s share. She shall not be subject to duty. The votary of Marduk shall leave it after her to whom she pleases.

(M164) § 183. If a father has given a portion, as for marriage, to his daughter by a concubine, and has given her to a husband, and has written her a deed; after her father has gone to his fate, she shall not share in the goods of her father’s house.

(M165) § 184. If a man has not given a portion, as for marriage, to his daughter by a concubine, and has not given her to a husband; after her father has gone to his fate, her brothers shall present her with a marriage-portion, according to the wealth of her father’s estate, and shall give her to a husband.

(M166) § 185. If a man has taken a young child, a natural son of his, to be his son, and has brought him up, no one shall make a claim against that foster child.

(M167) § 186. If a man has taken a young child to be his son, and after he has taken him, the child discover his own parents, he shall return to his father’s house.

§ 187. The son of a royal favorite, of one that stands in the palace, or the son of a votary shall not be reclaimed.

(M168) §§ 188, 189. If a craftsman has taken a child to bring up and has taught him his handicraft, he shall not be reclaimed. If he has not taught him his handicraft that foster child shall return to his father’s house.

(M169) § 190. If a man has brought up the child, whom he has taken to be his son, but has not reckoned him with his sons, that foster child shall return to his father’s house.

(M170) § 191. If a man has brought up the child, whom he took to be his son, and then sets up a home, and after he has acquired children, decides to disinherit the foster child, that son shall not go his way [penniless]; the father that brought him up shall give him one-third of a son’s share in his goods and he shall depart. He shall not give him field, garden, or house.

(M171) § 192. If the son of a palace favorite or the son of a vowed woman has said to the father that brought him up, “You are not my father,” or to the mother that brought him up, “You are not my mother,” his tongue shall be cut out.

§ 193. If the son of a palace favorite or the son of a vowed woman has come to know his father’s house and has hated his father that brought him up, or his mother that brought him up, and shall go off to his father’s house, his eyes shall be torn out.

(M172) § 194. If a man has given his son to a wet-nurse to suckle, and that son has died in the hands of the nurse, and the nurse, without consent of the child’s father or mother, has nursed another child, they shall prosecute her; because she has nursed another child, without consent of the father or mother, her breasts shall be cut off.

(M173) § 195. If a son has struck his father, his hands shall be cut off.

(M174) § 196. If a man has knocked out the eye of a patrician, his eye shall be knocked out.

§ 197. If he has broken the limb of a patrician, his limb shall be broken.

§ 198. If he has knocked out the eye of a plebeian or has broken the limb of a plebeian, he shall pay one mina of silver.

§ 199. If he has knocked out the eye of a patrician’s servant, or broken the limb of a patrician’s servant, he shall pay half his value.

§ 200. If a patrician has knocked out the tooth of a man that is his equal, his tooth shall be knocked out.

§ 201. If he has knocked out the tooth of a plebeian, he shall pay one-third of a mina of silver.

(M175) § 202. If a man has smitten the privates of a man, higher in rank than he, he shall be scourged with sixty blows of an ox-hide scourge, in the assembly.

§ 203. If a man has smitten the privates of a patrician of his own rank, he shall pay one mina of silver.

§ 204. If a plebeian has smitten the privates of a plebeian, he shall pay ten shekels of silver.

§ 205. If the slave of anyone has smitten the privates of a free-born man, his ear shall be cut off.

(M176) § 206. If a man has struck another in a quarrel, and caused him a permanent injury, that man shall swear, “I struck him without malice,” and shall pay the doctor.

§ 207. If he has died of his blows, [the man] shall swear [similarly], and pay one-half a mina of silver; or,

§ 208. If [the deceased] was a plebeian, he shall pay one-third of a mina of silver.

(M177) § 209. If a man has struck a free woman with child, and has caused her to miscarry, he shall pay ten shekels for her miscarriage.

§ 210. If that woman die, his daughter shall be killed.

§ 211. If it be the daughter of a plebeian, that has miscarried through his blows, he shall pay five shekels of silver.

§ 212. If that woman die, he shall pay half a mina of silver.

§ 213. If he has struck a man’s maid and caused her to miscarry, he shall pay two shekels of silver.

§ 214. If that woman die, he shall pay one-third of a mina of silver.

(M178) § 215. If a surgeon has operated with the bronze lancet on a patrician for a serious injury, and has cured him, or has removed with a bronze lancet a cataract for a patrician, and has cured his eye, he shall take ten shekels of silver.

§ 216. If it be plebeian, he shall take five shekels of silver.

§ 217. If it be a man’s slave, the owner of the slave shall give two shekels of silver to the surgeon.

(M179) § 218. If a surgeon has operated with the bronze lancet on a patrician for a serious injury, and has caused his death, or has removed a cataract for a patrician, with the bronze lancet, and has made him lose his eye, his hands shall be cut off.

§ 219. If the surgeon has treated a serious injury of a plebeian’s slave, with the bronze lancet, and has caused his death, he shall render slave for slave.

§ 220. If he has removed a cataract with the bronze lancet, and made the slave lose his eye, he shall pay half his value.

(M180) § 221. If a surgeon has cured the limb of a patrician, or has doctored a diseased bowel, the patient shall pay five shekels of silver to the surgeon.

§ 222. If he be a plebeian, he shall pay three shekels of silver.

§ 223. If he be a man’s slave, the owner of the slave shall give two shekels of silver to the doctor.

(M181) § 224. If a veterinary surgeon has treated an ox, or an ass, for a severe injury, and cured it, the owner of the ox, or the ass, shall pay the surgeon one-sixth of a shekel of silver, as his fee.

§ 225. If he has treated an ox, or an ass, for a severe injury, and caused it to die, he shall pay one-quarter of its value to the owner of the ox, or the ass.

(M182) § 226. If a brander has cut out a mark on a slave, without the consent of his owner, that brander shall have his hands cut off.

§ 227. If someone has deceived the brander, and induced him to cut out a mark on a slave, that man shall be put to death and buried in his house; the brander shall swear, “I did not mark him knowingly,” and shall go free.

(M183) § 228. If a builder has built a house for a man, and finished it, he shall pay him a fee of two shekels of silver, for each _SAR_ built on.

§ 229. If a builder has built a house for a man, and has not made his work sound, and the house he built has fallen, and caused the death of its owner, that builder shall be put to death.

§ 230. If it is the owner’s son that is killed, the builder’s son shall be put to death.

§ 231. If it is the slave of the owner that is killed, the builder shall give slave for slave to the owner of the house.

§ 232. If he has caused the loss of goods, he shall render back whatever he has destroyed. Moreover, because he did not make sound the house he built, and it fell, at his own cost he shall rebuild the house that fell.

§ 233. If a builder has built a house for a man, and has not keyed his work, and the wall has fallen, that builder shall make that wall firm at his own expense.

(M184) § 234. If a boatman has built a boat of sixty _GUR_ for a man, he shall pay him a fee of two shekels of silver.

§ 235. If a boatman has built a boat for a man, and has not made his work sound, and in that same year that boat is sent on a voyage and suffers damage, the boatman shall rebuild that boat, and, at his own expense, shall make it strong, or shall give a strong boat to the owner.

(M185) § 236. If a man has let his boat to a boatman, and the boatman has been careless and the boat has been sunk or lost, the boatman shall restore a boat to the owner.

(M186) § 237. If a man has hired a boat and boatman, and loaded it with corn, wool, oil, or dates, or whatever it be, and the boatman has been careless, and sunk the boat, or lost what is in it, the boatman shall restore the boat which he sank, and whatever he lost that was in it.

§ 238. If a boatman has sunk a man’s boat, and has floated it again, he shall pay half its value in silver.

§ 239. If a man has hired a boatman, he shall pay him six _GUR_ of corn yearly.

(M187) § 240. If a boat, on its course, has run into a boat at anchor, and sunk it, the owner of the boat that was sunk shall estimate on oath whatever was lost in his boat, and the owner of the moving vessel, which sank the boat at anchor, shall make good his boat and what was lost in it.

(M188) § 241. If a man has levied a distraint on a working ox, he shall pay one-third of a mina of silver.

(M189) § 242. If a man has hired a working ox for one year, its hire is four _GUR_ of corn.

§ 243. As the hire of a milch cow one shall give three _GUR_ of corn to its owner.

(M190) § 244. If a man has hired an ox, or an ass, and a lion has killed it in the open field, the loss falls on its owner.

(M191) § 245. If a man has hired an ox and has caused its death, by carelessness, or blows, he shall restore ox for ox, to the owner of the ox.

§ 246. If a man has hired an ox, and has broken its leg, or cut its neck (?), he shall restore ox for ox, to the owner of the ox.

§ 247. If a man has hired an ox, and knocked out its eye, he shall pay to the owner of the ox half its value.

(M192) § 248. If a man has hired an ox, and has broken its horn, cut off its tail, or torn its muzzle, he shall pay one-quarter of its value.

§ 249. If a man has hired an ox, and God has struck it, and it has died, the man that hired the ox shall make affidavit and go free.

(M193) § 250. If a bull has gone wild and gored a man, and caused his death, there can be no suit against the owner.

(M194) § 251. If a man’s ox be a gorer, and has revealed its evil propensity as a gorer, and he has not blunted its horn, or shut up the ox, and then that ox has gored a free man, and caused his death, the owner shall pay half a mina of silver.

§ 252. If it be a slave that has been killed, he shall pay one-third of a mina of silver.

(M195) § 253. If a man has set another over his field, hired him, allotted him tools, and intrusted him with oxen for cultivating the field and provided harnesses for them, and if that man has appropriated the seed or provender, and they have been found in his possession, his hands shall be cut off.

§ 254. If he has taken the provender or rations and has enfeebled the oxen, he shall make it good from the corn he has hoed.

§ 255. If he has let out the man’s oxen for hire, or stolen the seed-corn, or has not produced a crop, that man shall be prosecuted, and he shall pay sixty _GUR_ of corn for each _GAN_.

§ 256. If he is not able to pay his compensation, he shall be torn in pieces on that field by the oxen.

(M196) § 257. If a man has hired a field-laborer, he shall pay him eight _GUR_ of corn yearly.

§ 258. If anyone has hired an ox-herd he shall pay him six _GUR_ of corn yearly.

(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

(M228) Partly because specific references to judges and legal processes are not necessarily to be expected in historical inscriptions, and partly because we do not really know which are the earliest monuments of the race, it is impossible to decide when law-courts first came into existence. It is generally admitted, however, that the stele of Manistusu is one of the earliest known monuments. There we read of Galzu, a judge. There also we find many of the officials, who later acted as judges upon occasion. Hence it may fairly be said that judges were to be found in ancient Babylonia from time immemorial. They must have decided what was right when there was no written law to which to appeal. With the judges were associated as assessors the elders of the city. This was so marked a feature, that in some cases we read, that after hearing the complaint the judge “assembled the city” to hear the case. In Babylonia the maxim, _littera scripta manet_, was so well understood that hardly anything of importance was done without committing it to writing. Hence we are as well informed about domestic affairs in Babylonia as about those of Europe in the Middle Ages.

(M229) It seems best to consider legal usages first, because they are essential to the understanding of all others. When we have a simple contract between two parties we do not at once see where the reference to the law comes in. But the contract was not valid unless sealed and witnessed. The sealing was accompanied by an oath. The oath probably had to be made in court. The witnesses seem often to have been a body of men who could only be found at the court. Even when there is least trace of the law and the judge, the case is similar to others where the judge appears explicitly. It is also worthy of remark that, partly owing to our possession of the Code and partly owing to the fuller nature of the legal decisions, we know far more of this subject, as of many others, in the early periods than in the later. Hence the discussion of early legal usage is unusually full. When the evidence from later times merely supports this, it will not be noticed. Only divergences are worthy of record. As a rule, the procedure changes very little for many centuries.

(M230) 1. *Judges.* The references to judges are less numerous than one would expect in the Code. But it seems probable that the sentences there laid down had to be pronounced by the judge, if not carried out by him. We are, however, still in complete ignorance as to the machinery of police administration. We may argue from analogy in other countries and ages, but this is not a theoretical treatise on comparative sociology. We must content ourselves with direct evidence.

(M231) Some sections deal explicitly with the duties of a judge. Thus,(80) if a judge had given a judgment, decided the case, and embodied it in a legal decision, he was subjected to severe penalties for afterwards revoking his decision. If he had inflicted a penalty, he had now to repay it twelvefold to him from whom it was exacted. Further he was to be publicly deposed from his office, expelled from his seat of judgment, _kussû daianûtišu_, and no longer be permitted to sit with the judges. It is, of course, assumed that when he was called to account he could not justify his former judgment, or else could not justify the change. But, as the law reads, it seems simply calculated to render a judgment, once pronounced, irrevocable,—at any rate, for that judge. Probably its revocation, in the case of injustice, was provided for by the right of appeal.

He had to consider the words of the witnesses, _amâtišunu amâru_, literally, “to see their words,” perhaps implying that the depositions were written, but there are instances where _amâru_ simply means “to consider.”(81)

In a criminal case, where a man had to produce witnesses to save his life from a death-sentence, the judge might grant him six months’ grace in which to produce his witnesses.(82) In later times we have many examples of such a stay of process that evidence might be produced.(83)