Chapter 7

§ 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)