(M52) We definitely know of one great code of laws, that of Hammurabi, and we are greatly strengthened in the view that there were laws, and even codes, centuries before him. The way in which contracts quote the phrases of his code is exactly parallel to the way in which far earlier contracts quote phrases which are evidently extracts, in the phrase-books, from some connected work. Hence we are warranted in thinking that these extracts come from a Sumerian code of laws. We do not yet know to whom we should ascribe its compilation.

(M53) For the Code of Hammurabi is also a compilation. He did not invent his laws. Phrases found in them appear in contracts before his time. Doubtless he did enact some fresh laws. But he built for the most part on other men's foundations. The decisions already passed by the judges had made men ready to accept as "right" what was now made "law." But the question is only carried back a stage further. Did not those judges decide according to law? In some cases we know they did, for we have the law before them. When we try to penetrate further into the background of history we can only surmise. Documents fail us to prove whether judges first made or administered the law. But we have now a very high antiquity for laws recognized and obeyed as right.

(M54) That laws were already enacted in the pre-Semitic or Sumerian days we may regard as certain. The legal phrase-books drawn up by later scribes, especially those known as forming the series called ana ittisu, give as specimens certain laws. These were evidently given by the scribes as examples of connected prose in Sumerian, accompanied by a rendering into Semitic. Their object was primarily grammatical, or at any rate educational; but they are most valuable because they contain specimens of the Sumerian legislation. Owing to their limited scope they were at first regarded as family laws. But there can be little doubt that they really are extracts from something like a code of laws. We are as yet quite ignorant of the date of their first promulgation, place of origin, and legislator. The seventh tablet of the series ana ittisu, Col. III. l. 22 to Col. IV. l. 22, gives the seven following laws:

(M55)

I. If a son has said to his father, "You are not my father," he may brand him, lay fetters upon him, and sell him.

It may be doubted whether this applies to any but adopted sons. "You shall not be my father" is a possible rendering. But the phrase may only refer to rebellious conduct. The word rendered "brand" has often been taken to mean "shave." The cutting short of the hair was a mark of degradation. The Semitic Babylonians wore their hair long, while slaves, and perhaps also Sumerians as a race, are represented as hairless. However that may be, the same word is used of "branding" cattle and it implies cutting or incision. It may mean a tattooed mark. The word rendered "fetter" seems also to be used of a branded body-mark. The whole law means that the rebellious son is to be degraded to the status of a slave and treated as such.

(M56)

II. If a son has said to his mother, "You are not my mother," one shall brand his forehead, drive him out of the city, and make him go out of the house.

Here the same ambiguity about branding is found. Some take the word rendered "forehead" to mean the hair of the head. His head would then be shaved. "To go out from the house" means "to be cut off from kith and kin." But here the son retains his freedom, only he is an exile and homeless. In this case it is not the mother who exacts the penalty. The verb is plural and may be taken impersonally. The family or the city magistrates are probably the ones to execute the law.

(M57)

III. If a father has said to his son, "You are not my son," he shall leave house and yard.

Here the father has power to repudiate a son, who must go. The word for "leave" is literally "take himself up," "go up out of." The word "yard" is simply "inclosure" and may mean the city walls, as a symbol of shelter.

(M58)

IV. If a mother has said to her son, "You are not my son," he shall leave house and property.

Here we expect, by analogy with Laws I. and II., that this penalty is rather less than that in III. The "property" means "house furniture." The son must leave home and can take no house furniture with him. He has no claim to inherit anything. But he need not leave the city. Hence it seems likely that III. denied him the right of city shelter.

(M59)

V. If a wife hates her husband and has said, "You are not my husband," one shall throw her into the river.

(M60)

VI. If a husband has said to his wife, "You are not my wife," he shall pay half a mina of silver.

The contrast in the penalties is startling. Note the impersonal form of V. The executioners here are the family, or city, not the husband. Publicity is therefore implied. It is not a private quarrel, but a refusal of conjugal rights. In the second case the man divorces, or puts away, his wife, but pays a heavy fine.

(M61)

VII. If a man has hired a slave and he dies, is lost, has fled, has been incapacitated, or has fallen sick, he shall measure out 10 KA of corn per diem as his wages.

Here the Sumerian text differs from the Semitic. In the former the employer is said to "cause" the slave to suffer these detriments, in the latter he is said to come by them. The verb rendered "lost" is used in that sense in the later Code of Hammurabi. What is the exact sense of the verb rendered "has been incapacitated" is not clear. Professor Hommel(60) renders durchbrennen, Delitzsch(61) renders weichen, entweichen, oder zu arbeiten aufhoeren. But it is clear that the employer is to pay a daily fine for injury done to the slave, or for loss to his owner, caused or connived at by him. The slave's refusal to work could not be made the ground for fining him. If anyone paid for that it would be the owner. The employer pays for his work, but is bound to keep him safe and treat him reasonably well and return him in good condition to his owner. In later times the owner often took the risk of death and flight, but then he probably charged more hire. At any rate it is clear that the owner is not named in this law.

It is not profitable to discuss these mere fragments of a code. The most interesting thing is their existence. We may one day recover the Code in full. These are not retranslations into Sumerian, by learned scribes, of late laws. For exactly these words and phrases occur in the contracts of the First Dynasty of Babylon, before and after the Code of Hammurabi, which deals with the same cases, but in different words. In fact, this Sumerian Code is quoted, as the later Code was quoted, in documents which embody the sworn agreement of the parties to observe the section of the Code applying to their case. This is indeed the characteristic of the early contracts: after indicating the particulars of the case, an oath is added to the effect that the parties will abide by the law concerning it. Even where no reference is made to a law, it is because either no law had been promulgated on the point, or because the law was understood too well to need mention. Later this law-abiding spirit was less in evidence and the contract became a private undertaking to carry out mutual engagements. But even then it was assumed that a law existed which would hold the parties to the terms of an engagement voluntarily contracted.



II. The Code Of Hammurabi

(M62) 1. If a man has accused another of laying a nertu (death spell?) upon him, but has not proved it, he shall be put to death.

2. If a man has accused another of laying a kispu (spell) upon him, but has not proved it, the accused shall go to the sacred river, he shall plunge into the sacred river, and if the sacred river shall conquer him, he that accused him shall take possession of his house. If the sacred river shall show his innocence and he is saved, his accuser shall be put to death. He that plunged into the sacred river shall appropriate the house of him that accused him.

(M63) 3. If a man has borne false witness in a trial, or has not established the statement that he has made, if that case be a capital trial, that man shall be put to death.

(M64) 4. If he has borne false witness in a civil law case, he shall pay the damages in that suit.

(M65) 5. If a judge has given a verdict, rendered a decision, granted a written judgment, and afterward has altered his judgment, that judge shall be prosecuted for altering the judgment he gave and shall pay twelvefold the penalty laid down in that judgment. Further, he shall be publicly expelled from his judgment-seat and shall not return nor take his seat with the judges at a trial.

(M66) 6. If a man has stolen goods from a temple, or house, he shall be put to death; and he that has received the stolen property from him shall be put to death.

(M67) 7. If a man has bought or received on deposit from a minor or a slave, either silver, gold, male or female slave, ox, ass, or sheep, or anything else, except by consent of elders, or power of attorney, he shall be put to death for theft.

(M68) 8. If a patrician has stolen ox, sheep, ass, pig, or ship, whether from a temple, or a house, he shall pay thirtyfold. If he be a plebeian, he shall return tenfold. If the thief cannot pay, he shall be put to death.

(M69) 9. If a man has lost property and some of it be detected in the possession of another, and the holder has said, "A man sold it to me, I bought it in the presence of witnesses"; and if the claimant has said, "I can bring witnesses who know it to be property lost by me"; then the alleged buyer on his part shall produce the man who sold it to him and the witnesses before whom he bought it; the claimant shall on his part produce the witnesses who know it to be his lost property. The judge shall examine their pleas. The witnesses to the sale and the witnesses who identify the lost property shall state on oath what they know. Such a seller is the thief and shall be put to death. The owner of the lost property shall recover his lost property. The buyer shall recoup himself from the seller's estate.

10. If the alleged buyer on his part has not produced the seller or the witnesses before whom the sale took place, but the owner of the lost property on his part has produced the witnesses who identify it as his, then the [pretended] buyer is the thief; he shall be put to death. The owner of the lost property shall take his lost property.

11. If, on the other hand, the claimant of the lost property has not brought the witnesses that know his lost property, he has been guilty of slander, he has stirred up strife, he shall be put to death.

12. If the seller has in the meantime died, the buyer shall take from his estate fivefold the value sued for.

(M70) 13. If a man has not his witnesses at hand, the judge shall set him a fixed time not exceeding six months, and if within six months he has not produced his witnesses, the man has lied; he shall bear the penalty of the suit.

(M71) 14. If a man has stolen a child, he shall be put to death.

(M72) 15. If a man has induced either a male or female slave from the house of a patrician, or plebeian, to leave the city, he shall be put to death.

(M73) 16. If a man has harbored in his house a male or female slave from a patrician's or plebeian's house, and has not caused the fugitive to leave on the demand of the officer over the slaves condemned to public forced labor, that householder shall be put to death.

(M74) 17. If a man has caught either a male or female runaway slave in the open field and has brought him back to his owner, the owner of the slave shall give him two shekels of silver.

18. If such a slave will not name his owner, his captor shall bring him to the palace, where he shall be examined as to his past and returned to his owner.

19. If the captor has secreted that slave in his house and afterward that slave has been caught in his possession, he shall be put to death.

20. If the slave has fled from the hands of his captor, the latter shall swear to the owner of the slave and he shall be free from blame.

(M75) 21. If a man has broken into a house he shall be killed before the breach and buried there.

(M76) 22. If a man has committed highway robbery and has been caught, that man shall be put to death.

23. If the highwayman has not been caught, the man that has been robbed shall state on oath what he has lost and the city or district governor in whose territory or district the robbery took place shall restore to him what he has lost.

24. If a life [has been lost], the city or district governor shall pay one mina of silver to the deceased's relatives.

(M77) 25. If a fire has broken out in a man's house and one who has come to put it out has coveted the property of the householder and appropriated any of it, that man shall be cast into the self-same fire.

(M78) 26. If a levy-master, or warrant-officer, who has been detailed on the king's service, has not gone, or has hired a substitute in his place, that levy-master, or warrant-officer, shall be put to death and the hired substitute shall take his office.

27. If a levy-master, or warrant-officer, has been assigned to garrison duty, and in his absence his field and garden have been given to another who has carried on his duty, when the absentee has returned and regained his city, his field and garden shall be given back to him and he shall resume his duty.

(M79) 28. If a levy-master, or warrant-officer, has been assigned to garrison duty, and has a son able to carry on his official duty, the field and garden shall be given to him and he shall carry on his father's duty.

29. If the son be a child and is not able to carry on his father's duty, one-third of the field and garden shall be given to his mother to educate him.

(M80) 30. If such an official has neglected the care of his field, garden, or house, and let them go to waste, and if another has taken his field, garden, or house, in his absence, and carried on the duty for three years, if the absentee has returned and would cultivate his field, garden, or house, it shall not be given him; he who has taken it and carried on the duty connected with it shall continue to do so.

31. If for one year only he has let things go to waste and he has returned, his field, garden, and house shall be given him, and he himself shall carry on his duty.

(M81) 32. If such an official has been assigned to the king's service (and captured by the enemy) and has been ransomed by a merchant and helped to regain his city, if he has had means in his house to pay his ransom, he himself shall do so. If he has not had means of his own, he shall be ransomed by the temple treasury. If there has not been means in the temple treasury of his city, the state will ransom him. His field, garden, or house shall not be given for his ransom.

(M82) 33. If either a governor or a prefect has appropriated to his own use the corvee, or has accepted and sent on the king's service a hired substitute in his place, that governor, or prefect, shall be put to death.

(M83) 34. If either a governor, or a prefect, has appropriated the property of a levy-master, has hired him out, has robbed him by high-handedness at a trial, has taken the salary which the king gave to him, that governor, or prefect, shall be put to death.

(M84) 35. If a man has bought from a levy-master the sheep, or oxen, which the king gave him, he shall lose his money.

36. The field, garden, or house, of a levy-master, warrant-officer, or tributary shall not be sold.

37. If a man has bought field, garden, or house, of a levy-master, a warrant-officer, or tributary, his title-deed shall be destroyed and he shall lose his money. He shall return the field, garden, or house to its owner.

(M85) 38. A levy-master, warrant-officer, or tributary, shall not bequeath anything from the field, garden, or house of his benefice to his wife or daughter, nor shall he give it for his debt.

39. From the field, garden, or house which he has bought and acquired, he shall make bequests to his wife, or daughter, or shall assign for his debt.

(M86) 40. A votary, merchant, or resident alien may sell his field, garden, or house, and the buyer shall discharge the public service connected with the field, garden, or house that he has bought.

(M87) 41. If a man has given property in exchange for the field, garden, or house, of a levy-master, warrant-officer, or tributary, such an official shall return to his field, garden, or house, and he shall appropriate the property given in exchange.

(M88) 42. If a man has hired a field to cultivate and has caused no corn to grow on the field, he shall be held responsible for not doing the work on the field and shall pay an average rent.

43. If he has not cultivated the field and has left it alone, he shall give to the owner of the field an average rent, and the field which he has neglected he shall break up with mattocks and plough it, and shall return it to the owner of the field.

(M89) 44. If a man has taken a piece of virgin soil to open up, on a three years' lease, but has left it alone, has not opened up the land, in the fourth year he shall break it up, hoe it, and plough it, and shall return it to the owner of the field, and shall measure out ten GUR of corn for each GAN of land.

(M90) 45. If a man has let his field to a farmer and has received his rent for the field but afterward the field has been flooded by rain, or a storm has carried off the crop, the loss shall be the farmer's.

46. If he has not received the rent of his field, whether he let it for a half, or for a third, of the crop, the farmer and the owner of the field shall share the corn that is left in the field, according to their agreement.

(M91) 47. If a tenant farmer, because he did not start farming in the early part of the year, has sublet the field, the owner of the field shall not object; his field has been cultivated; at harvest-time he shall take rent, according to his agreement.

(M92) 48. If a man has incurred a debt and a storm has flooded his field or carried away the crop, or the corn has not grown because of drought, in that year he shall not pay his creditor. Further, he shall post-date his bond and shall not pay interest for that year.

(M93) 49. If a man has received money from a merchant and has given to the merchant a field, planted with corn, or sesame, and has said to him, "Cultivate the field and reap and take the corn, or sesame, that shall be grown"; if the bailiff has reared corn, or sesame, in the field, at harvest-time the owner of the field shall take what corn, or sesame, has been grown in the field and shall pay corn to the merchant for his money that he took of him and its interest, and for the maintenance of the bailiff.

50. If the field he gave was [already] cultivated, or the sesame was grown up, the owner of the field shall take the corn, or sesame, that has been grown in the field, and shall return the money and its interest to the merchant.

51. If he has not money enough, he shall give to the merchant sesame, or corn, according to its market price, for the money which he took from the merchant and its interest, according to the king's standard.

52. If the bailiff has not reared corn or sesame in the field the debtor's obligation shall not be lessened.

(M94) 53, 54. If a man has neglected to strengthen his dike and has not kept his dike strong, and a breach has broken out in his dike, and the waters have flooded the meadow, the man in whose dike the breach has broken out shall restore the corn he has caused to be lost. [54]. If he be not able to restore the corn, he and his goods shall be sold, and the owners of the meadow whose corn the water has carried away shall share the money.

(M95) 55. If a man has opened his runnel for watering and has left it open, and the water has flooded his neighbor's field, he shall pay him an average crop.

56. If a man has let out the waters and they flood the young plants in his neighbor's field, he shall measure out ten GUR of corn for each GAN of land.

(M96) 57. If a shepherd has not agreed with the owner of the field to allow his sheep to eat off the green crop and without consent of the owner has let his sheep feed off it, the owner of the field shall harvest his crop, but the shepherd who without consent of the owner of the field caused his sheep to eat it shall give to the owner of the field, over and above his crop, twenty GUR of corn for each GAN of land.

58. If, after the sheep have come up out of the meadows and have passed into the common fold at the city gate, a shepherd has placed his sheep in a field and caused his sheep to feed in the field, the shepherd shall keep the field he has grazed, and, at harvest-time, he shall measure out to the owner sixty GUR of corn for each GAN of land.

(M97) 59. If a man without the consent of the owner has cut down a tree in an orchard, he shall weigh out half a mina of silver.

(M98) 60, 61. If a man has given a field to a gardener to plant a garden and the gardener has planted the garden, he shall train the garden four years; in the fifth year the owner of the garden and the gardener shall share the garden equally, the owner of the garden shall gather his share and take it. [61]. If the gardener, in planting the garden, has not planted all, but has left a bare patch, he shall reckon the bare patch in his share.

62. If he has not planted the field which was given him as a garden; then, if it was arable land, the gardener shall measure out to the owner of the field an average rent for the years that were neglected, and shall perform the stipulated work on the field (i.e., make it into a garden), and return it to the owner of the field.

63. If the land was uncultivated, he shall do the stipulated work on the field, and return to the owner of the field and shall measure out for each year ten GUR of corn for each GAN.

(M99) 64. If a man has given his garden to a gardener to farm, the gardener, as long as he holds the garden, shall give the owner of the garden two-thirds of the produce of the garden and shall take one-third himself.

65. If the gardener has not tilled the garden and has diminished the yield, the gardener shall pay an average rent.

Here came the five erased columns, of which the three following sections are restored from copies in Ashurbanipal's library:

(M100) X. [If a man has borrowed money of a merchant and has given a date grove] to the merchant and has said to him, "Take the dates that are in my grove for your money"; that merchant shall not consent, the owner of the grove shall take the dates that are in the grove and shall answer to the merchant for the money and its interest, according to the tenor of his agreement, and the owner of the grove shall take the surplus of the dates that are in the grove.

(M101) Y. [If a man has let a house] and the tenant has paid to the owner of the house the full rent for a term of years, and if the owner of the house has ordered the tenant to leave before his time is up, the owner of the house, because he has ordered his tenant to leave before his time is up, [shall repay a proportionate amount] from what the tenant has paid him.

(M102) Z. [If a man has borrowed money of a merchant] and has not corn or money wherewith [to pay], but has goods; whatever is in his hands, he shall give to the merchant, before the elders. The merchant shall not object; he shall receive it.

After the loss of about thirty-five sections the Code resumes:

(M103) 100. [If an agent has received money of a merchant, he shall write down the amount] and [what is to be] the interest of the money, and when his time is up, he shall settle with his merchant.

101. If he has not had success on his travels, he shall return double what he received to the merchant.

(M104) 102, 103. If the merchant has given money, as a speculation, to the agent, who during his travels has met with misfortune, he shall return the full sum to the merchant. [103]. If, on his travels, an enemy has forced him to give up some of the goods he was carrying, the agent shall specify the amount on oath and shall be acquitted.

(M105) 104. If a merchant has given to an agent corn, wool, oil, or any sort of goods, to traffic with, the agent shall write down the money value, and shall return that to the merchant. The agent shall then take a sealed receipt for the money that he has given to the merchant.

105. If the agent forgets and has not taken a sealed receipt for the money he gave to the merchant, money that has not been acknowledged by receipt shall not be put down in the accounts.

(M106) 106. If an agent has taken money of a merchant, and his principal suspects him, that principal shall prosecute his agent, put him on oath before the elders, as to the money taken; the agent shall pay to the merchant threefold what he misappropriated.

(M107) 107. If the principal has overcharged the agent and the agent has [really] returned to his principal whatever his principal gave him, and if the principal has disputed what the agent has given him, that agent shall put his principal on oath before the elders, and the merchant, because he has defrauded the agent, shall pay to the agent sixfold what he misappropriated.

(M108) 108. If the mistress of a beer-shop has not received corn as the price of beer or has demanded silver on an excessive scale, and has made the measure of beer less than the measure of corn, that beer-seller shall be prosecuted and drowned.

(M109) 109. If the mistress of a beer-shop has assembled seditious slanderers in her house and those seditious persons have not been captured and have not been haled to the palace, that beer-seller shall be put to death.

(M110) 110. If a votary, who is not living in the convent, open a beer-shop, or enter a beer-shop for drink, that woman shall be put to death.

(M111) 111. If the mistress of a beer-shop has given sixty KA of sakani beer in the time of thirst, at harvest, she shall take fifty KA of corn.

(M112) 112. If a man staying abroad has given silver, gold, precious stones, or portable goods to another man to transport, and if that man has not delivered the consignment, where he has carried it, but has appropriated it, the owner of the consignment shall prosecute him, and the carrier shall give to the owner of the consignment fivefold whatever was intrusted to him.

(M113) 113. If a man has a debt of corn, or money, due from another and without the consent of the owner of the corn has taken corn from the granary, or barn, the owner of the corn shall prosecute him for taking the corn from the granary, or barn, without his consent, and the man shall return all the corn he took, and further lose whatever it was that he had lent.

(M114) 114. If a man has no debt of corn or money due from a man on whom he has levied a distraint, for each such distraint he shall pay one-third of a mina of silver.

(M115) 115. If a man has corn or money due from another man and has levied a distraint and the hostage has died a natural death in the house of the creditor, he cannot be held responsible.

116. If the hostage has died of blows or want in the house of the creditor, the owner of the hostage shall prosecute his creditor, and if the deceased were free born, the creditor's son shall be put to death; if a slave, the creditor shall pay one-third of a mina of silver, Further, he shall lose whatever it was that he lent.

(M116) 117. If a man owes a debt, and he has given his wife, his son, or his daughter [as hostage] for the money, or has handed someone over to work it off, the hostage shall do the work of the creditor's house; but in the fourth year he shall set them free.

118. If a debtor has handed over a male or female slave to work off a debt, and the creditor proceeds to sell same, no one can complain.

119. If a man owes a debt, and he has assigned a maid who has borne him children for the money, the owner of the maid shall repay the money which the merchant gave him and shall ransom his maid.

(M117) 120. If a man has deposited his corn for safe keeping in another's house and it has suffered damage in the granary, or if the owner of the house has opened the store and taken the corn, or has disputed the amount of the corn that was stored in his house, the owner of the corn shall declare on oath the amount of his corn, and the owner of the house shall return him double.

(M118) 121. If a man has stored corn in another man's house he shall give, on each GUR of corn, five KA of corn, yearly, as the rent for storage.

(M119) 122. If a man has given another gold, silver, or any goods whatever, on deposit, all that he gives shall he show to witnesses, and take a bond and so give on deposit.

123. If he has given on deposit without witnesses and bonds, and has been defrauded where he made his deposit, he has no claim to prosecute.

(M120) 124. If a man has given on deposit to another, before witnesses, gold, silver, or any goods whatever, and his claim has been contested, he shall prosecute that man, and [the man] shall return double what he disputed.

(M121) 125. If a man has given anything whatever on deposit, and, where he has made his deposit, something of his has been lost together with something belonging to the owner of the house, either by house-breaking or a rebellion, the owner of the house who is in default shall make good all that has been given him on deposit, which he has lost, and shall return it to the owner of the goods. The owner of the house shall look after what he has lost and recover it from the thief.

(M122) 126. If a man has said that something of his is lost, which is not lost, or has alleged a depreciation, though nothing of his is lost, he shall estimate the depreciation on oath, and he shall pay double whatever he has claimed.

(M123) 127. If a man has caused the finger to be pointed at a votary, or a man's wife, and has not justified himself, that man shall be brought before the judges, and have his forehead branded.

(M124) 128. If a man has taken a wife and has not executed a marriage-contract, that woman is not a wife.

(M125) 129. If a man's wife be caught lying with another, they shall be strangled and cast into the water. If the wife's husband would save his wife, the king can save his servant.

(M126) 130. If a man has ravished another's betrothed wife, who is a virgin, while still living in her father's house, and has been caught in the act, that man shall be put to death; the woman shall go free.

(M127) 131. If a man's wife has been accused by her husband, and has not been caught lying with another, she shall swear her innocence, and return to her house.

(M128) 132. If a man's wife has the finger pointed at her on account of another, but has not been caught lying with him, for her husband's sake she shall plunge into the sacred river.

(M129) 133. If a man has been taken captive, and there was maintenance in his house, but his wife has left her house and entered into another man's house; because that woman has not preserved her body, and has entered into the house of another, that woman shall be prosecuted and shall be drowned.

134. If a man has been taken captive, but there was not maintenance in his house, and his wife has entered into the house of another, that woman has no blame.

135. If a man has been taken captive, but there was no maintenance in his house for his wife, and she has entered into the house of another, and has borne him children, if in the future her [first] husband shall return and regain his city, that woman shall return to her first husband, but the children shall follow their own father.

(M130) 136. If a man has left his city and fled, and, after he has gone, his wife has entered into the house of another; if the man return and seize his wife, the wife of the fugitive shall not return to her husband, because he hated his city and fled.

(M131) 137. If a man has determined to divorce a concubine who has borne him children, or a votary who has granted him children, he shall return to that woman her marriage-portion, and shall give her the usufruct of field, garden, and goods, to bring up her children. After her children have grown up, out of whatever is given to her children, they shall give her one son's share, and the husband of her choice shall marry her.

(M132) 138. If a man has divorced his wife, who has not borne him children, he shall pay over to her as much money as was given for her bride-price and the marriage-portion which she brought from her father's house, and so shall divorce her.

139. If there was no bride-price, he shall give her one mina of silver, as a price of divorce.

140. If he be a plebeian, he shall give her one-third of a mina of silver.

(M133) 141. If a man's wife, living in her husband's house, has persisted in going out, has acted the fool, has wasted her house, has belittled her husband, he shall prosecute her. If her husband has said, "I divorce her," she shall go her way; he shall give her nothing as her price of divorce. If her husband has said, "I will not divorce her," he may take another woman to wife; the wife shall live as a slave in her husband's house.

(M134) 142. If a woman has hated her husband and has said, "You shall not possess me," her past shall be inquired into, as to what she lacks. If she has been discreet, and has no vice, and her husband has gone out, and has greatly belittled her, that woman has no blame, she shall take her marriage-portion and go off to her father's house.

143. If she has not been discreet, has gone out, ruined her house, belittled her husband, she shall be drowned.

(M135) 144. If a man has married a votary, and that votary has given a maid to her husband, and so caused him to have children, and, if that man is inclined to marry a concubine, that man shall not be allowed to do so, he shall not marry a concubine.

145. If a man has married a votary, and she has not granted him children, and he is determined to marry a concubine, that man shall marry the concubine, and bring her into his house, but the concubine shall not place herself on an equality with the votary.

(M136) 146. If a man has married a votary, and she has given a maid to her husband, and the maid has borne children, and if afterward that maid has placed herself on an equality with her mistress, because she has borne children, her mistress shall not sell her, she shall place a slave-mark upon her, and reckon her with the slave-girls.

147. If she has not borne children, her mistress shall sell her.

(M137) 148. If a man has married a wife and a disease has seized her, if he is determined to marry a second wife, he shall marry her. He shall not divorce the wife whom the disease has seized. In the home they made together she shall dwell, and he shall maintain her as long as she lives.

149. If that woman was not pleased to stay in her husband's house, he shall pay over to her the marriage-portion which she brought from her father's house, and she shall go away.

(M138) 150. If a man has presented field, garden, house, or goods to his wife, has granted her a deed of gift, her children, after her husband's death, shall not dispute her right; the mother shall leave it after her death to that one of her children whom she loves best. She shall not leave it to her kindred.

(M139) 151. If a woman, who is living in a man's house, has persuaded her husband to bind himself, and grant her a deed to the effect that she shall not be held for debt by a creditor of her husband's; if that man had a debt upon him before he married that woman, his creditor shall not take his wife for it. Also, if that woman had a debt upon her before she entered that man's house, her creditor shall not take her husband for it.

152. From the time that that woman entered into the man's house they together shall be liable for all debts subsequently incurred.

(M140) 153. If a man's wife, for the sake of another, has caused her husband to be killed, that woman shall be impaled.

(M141) 154. If a man has committed incest with his daughter, that man shall be banished from the city.

(M142) 155. If a man has betrothed a maiden to his son and his son has known her, and afterward the man has lain in her bosom, and been caught, that man shall be strangled and she shall be cast into the water.

156. If a man has betrothed a maiden to his son, and his son has not known her, and that man has lain in her bosom, he shall pay her half a mina of silver, and shall pay over to her whatever she brought from her father's house, and the husband of her choice shall marry her.

(M143) 157. If a man, after his father's death, has lain in the bosom of his mother, they shall both of them be burnt together.

(M144) 158. If a man, after his father's death, be caught in the bosom of his step-mother, who has borne children, that man shall be cut off from his father's house.

(M145) 159. If a man, who has presented a gift to the house of his prospective father-in-law and has given the bride-price, has afterward looked upon another woman and has said to his father-in-law, "I will not marry your daughter"; the father of the girl shall keep whatever he has brought as a present.

(M146) 160. If a man has presented a gift to the house of his prospective father-in-law, and has given the bride-price, but the father of the girl has said, "I will not give you my daughter," the father shall return double all that was presented him.

(M147) 161. If a man has brought a gift to the house of his prospective father-in-law, and has given the bride-price, but his comrade has slandered him and his father-in-law has said to the suitor, "You shall not marry my daughter," [the father] shall return double all that was presented him. Further, the comrade shall not marry the girl.

(M148) 162. If a man has married a wife, and she has borne him children, and that woman has gone to her fate, her father shall lay no claim to her marriage-portion. Her marriage-portion is her children's only.

163. If a man has married a wife, and she has not borne him children, and that woman has gone to her fate; if his father-in-law has returned to him the bride-price, which that man brought into the house of his father-in-law, her husband shall have no claim on the marriage-portion of that woman. Her marriage-portion indeed belongs to her father's house.

164. If the father-in-law has not returned the bride-price, the husband shall deduct the amount of her bride-price from her marriage-portion, and shall return her marriage-portion to her father's house.

(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 KA of corn.

269. If he has hired an ass, for threshing, its hire is ten KA of corn.

270. If he has hired a young animal, for threshing, its hire is one KA of corn.

(M201) 271. If a man has hired oxen, a wagon, and its driver, he shall pay one hundred and sixty KA of corn daily.

272. If a man has hired the wagon alone, he shall pay forty KA 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 SE of silver daily; from the sixth month to the close of the year, he shall pay five SE of silver daily.

(M203) 274. If a man has hired an artisan, he shall pay as his daily wages, to a ... five SE of silver, to a potter five SE of silver, to a tailor five SE of silver, to a stone-cutter ... SE of silver, to a ... SE of silver, to a ... SE of silver, to a carpenter four SE of silver, to a rope-maker four SE of silver, to a ... SE of silver, to a builder ... SE of silver.

(M204) 275. If a man has hired a boat, its hire is three SE of silver daily.

276. If he has hired a fast boat he shall pay two and a half SE 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 Koenigliche 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 Hammurabi. Dr. Peiser thought that the date was the second year of Ashurbanipal, 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 (nusurru), 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 terhatu, 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 seriktu, 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 seriktu 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 Hammurabi Code to have been composed of three great classes, the amelu, the muskenu, 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 Hammurabi'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 muskenu 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 amelu. He paid less to his wife for a divorce,(63) and could assault another poor man more cheaply than could an amelu. There can be no doubt that the amelu was the "gentleman" or "nobleman," and the muskenu a common man, or poor man. But the exact force of the terms is uncertain.

In process of time amelu 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, amelu 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 muskenu; 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 Hammurabi and the contemporary contracts, but whose functions are not easy to fix. They were the rid sabi and the bairu. 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, kussu daianutisu, 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, amatisunu amaru, literally, "to see their words," perhaps implying that the depositions were written, but there are instances where amaru 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)

(M232) Special directions are also given to a judge as to his procedure, when a father was minded to disinherit his son; or, when a widow with a young family wished to marry again.(84) A slanderer was summoned before the judge,(85) a son could not be cut off without referring the case to a judge,(86) the children who wished to turn their widowed mother out of her house had to appear before a judge.(87)

(M233) For the most part judges constituted a distinct profession, but it must not be understood that they had no other means of livelihood. Indeed, there is no hint anywhere that they received any remuneration for their services. But it was a high honor and by no means subsidiary to another office. Among those who officiated as judges we find most of the higher officials. Doubtless the king himself acted as judge on occasions, and probably no great official of the realm was wholly free from the call to act in a judicial capacity. But, as a rule, the judge is simply noted as "judge." That the priests were judges is quite unproved. The judges were men of great importance and high rank, but there is nothing to show that they were priests. An age qualification is more likely.

(M234) The judge was a professional man. We often find a man, bearing the title "judge," acting as party to a suit, or witness to a deed, when he is certainly not acting in his judicial capacity. To a certain extent he was a territorial officer, had his own district for jurisdiction, and was jealous of cases being taken elsewhere. How the ranks of the judges were filled we do not know, but there is a hint of royal appointment in the phrase, "the king's judges." On the other hand, there is clear evidence of the office being hereditary. Thus, Ibik-Anunitum had no less than three sons, Idin-Ishtar, Marduk-mushallim, and Nannar-idinnam, all judges. Whether a right to the office descended in the female line is not quite clear, but we find a lady, Ishtar-ummu, among the judges, on occasion. She was also the scribe.(88)

(M235) Though many high officials acted as judges, and so doing are named before the simple "judge," there is no evidence of the existence of any "chief judge." The order of names appears to be that of seniority alone. This may be due to the nature of our documents. The phrase-books name a "chief judge" for Sumerian times. In the later Assyrian period the chief-justice was called sartenu, evidently because he fixed the sartu, or fine, on the condemned party. Then also many high officials acted as judges.(89)