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.