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