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116
BABYLONIAN LAW

“the Code”) has, however, made a more systematic study possible than could have resulted from the classification and interpretation of the other material. Some fragments of a later code exist and have been published; but there still remain many points upon which we have no evidence.

This material dates from the earliest times down to the commencement of our era. The evidence upon a particular point may be very full at one period and almost entirely lacking at another. The Code forms the backbone of the skeleton sketch which is here reconstructed. The fragments of it which have been recovered from Assur-bani-pal's library at Nineveh and later Babylonian copies show that it was studied, divided into chapters entitled Ninu ilu ṣirum from its opening words, and recopied for fifteen hundred years or more. The greater part of it remained in force, even through the Persian, Greek and Parthian conquests, which affected private life in Babylonia very little, and it survived to influence Syro-Roman and later Mahommedan law in Mesopotamia. The law and custom which preceded the Code we shall call “early,” that of the New Babylonian empire (as well as the Persian, Greek, &c.) “late.” The law in Assyria was derived from Babylonia but conserved early features long after they had disappeared elsewhere.

When the Semitic tribes settled in the cities of Babylonia, their tribal custom passed over into city law. The early history of the country is the story of a struggle for supremacy between the cities. A metropolis demanded tribute and military support from its subject cities but left their local cults and customs unaffected. The city rights and usages were respected by kings and conquerors alike.

As late as the accession of Assur-bani-pal and Samas-sum-yukin we find the Babylonians appealing to their city laws that groups of aliens to the number of twenty at a time were free to enter the city, that foreign women once married to Babylonian husbands could not be enslaved and that not even a dog that entered the city could be put to death untried.

The population of Babylonia was of many races from early times and intercommunication between the cities was incessant. Every city had a large number of resident aliens. This freedom of intercourse must have tended to assimilate custom. It was, however, reserved for the genius of Khammurabi to make Babylon his metropolis and weld together his vast empire by a uniform system of law.

Almost all trace of tribal custom has already disappeared Code of Khammurabi. from the law of the Code. It is state-law; alike self-help, blood-feud, marriage by capture, are absent; though family solidarity, district responsibility, ordeal, the lex talionis, are primitive features that remain. The king is a benevolent autocrat, easily accessible to all his subjects, both able and willing to protect the weak against the highest-placed oppressor. The royal power, however, can only pardon when private resentment is appeased. The judges are strictly supervised and appeal is allowed. The whole land is covered with feudal holdings, masters of the levy, police, &c. There is a regular postal system. The pax Babylonica is so assured that private individuals do not hesitate to ride in their carriage from Babylon to the coast of the Mediterranean. The position of women is free and dignified.

The Code did not merely embody contemporary custom or conserve ancient law. It is true that centuries of law-abiding and litigious habitude had accumulated in the temple archives of each city vast stores of precedent in ancient deeds and the records of judicial decisions, and that intercourse had assimilated city custom. The universal habit of writing and perpetual recourse to written contract even more modified primitive custom and ancient precedent. Provided the parties could agree, the Code left them free to contract as a rule. Their deed of agreement was drawn up in the temple by a notary public, and confirmed by an oath “by god and the king.” It was publicly sealed and witnessed by professional witnesses, as well as by collaterally interested parties. The manner in which it was thus executed may have been sufficient security that its stipulations were not impious or illegal. Custom or public opinion doubtless secured that the parties would not agree to wrong. In case of dispute the judges dealt first with the contract. They might not sustain it, but if the parties did not dispute it, they were free to observe it. The judges' decision might, however, be appealed against. Many contracts contain the proviso that in case of future dispute the parties would abide by “the decision of the king.” The Code made known, in a vast number of cases, what that decision would be, and many cases of appeal to the king were sent back to the judges with orders to decide in accordance with it. The Code itself was carefully and logically arranged and the order of its sections was conditioned by their subject-matter. Nevertheless the order is not that of modern scientific treatises, and a somewhat different order from both is most convenient for our purpose.

The Code contemplates the whole population as falling into three classes, the amelu, the muskinu and the ardu. The amelu was a patrician, the man of family, whose birth, marriage and death were registered, of ancestral estates and full civil rights. He had aristocratic privileges and responsibilities, the right to exact retaliation for corporal injuries, and liability to heavier punishment for crimes and misdemeanours, higher fees and fines to pay. To this class belonged the king and court, the higher officials, the professions and craftsmen. The term became in time a mere courtesy title but originally carried with it standing. Already in the Code, when status is not concerned, it is used to denote “any one.” There was no property qualification nor does the term appear to be racial. It is most difficult to characterize the muskinu exactly. The term came in time to mean “a beggar” and with that meaning has passed through Aramaic and Hebrew into many modern languages; but though the Code does not regard him as necessarily poor, he may have been landless. He was free, but had to accept monetary compensation for corporal injuries, paid smaller fees and fines, even paid less offerings to the gods. He inhabited a separate quarter of the city. There is no reason to regard him as specially connected with the court, as a royal pensioner, nor as forming the bulk of the population. The rarity of any reference to him in contemporary documents makes further specification conjectural. The ardu was a slave, his master's chattel, and formed a very numerous class. He could acquire property and even hold other slaves. His master clothed and fed him, paid his doctor's fees, but took all compensation paid for injury done to him. His master usually found him a slave-girl as wife (the children were then born slaves), often set him up in a house (with farm or business) and simply took an annual rent of him. Otherwise he might marry a freewoman (the children were then free), who might bring him a dower which his master could not touch, and at his death one-half of his property passed to his master as his heir. He could acquire his freedom by purchase from his master, or might be freed and dedicated to a temple, or even adopted, when he became an amelu and not a muskinu. Slaves were recruited by purchase abroad, from captives taken in war and by freemen degraded for debt or crime. A slave often ran away; if caught, the captor was bound to restore him to his master, and the Code fixes a reward of two shekels which the owner must pay the captor. It was about one-tenth of the average value. To detain, harbour, &c., a slave was punished by death. So was an attempt to get him to leave the city. A slave bore an identification mark, which could only be removed by a surgical operation and which later consisted of his owner's name tattoed or branded on the arm. On the great estates in Assyria and its subject provinces were many serfs, mostly of subject race, settled captives, or quondam slaves, tied to the soil they cultivated and sold with the estate but capable of possessing land and property of their own. There is little trace of serfs in Babylonia, unless the muskinu be really a serf.

The god of a city was originally owner of its land, which encircled it with an inner ring of irrigable arable land and an outer fringe of pasture, and the citizens were his tenants. The god and his viceregent, the king, had long ceased to disturb tenancy, and were content with fixed dues in naturalia, stock,