The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples / The Schweich Lectures

by C. H. W. Johns

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.