THE CODE OF HAMMURABI It is the great Code of Hammurabi, discovered at Susa in 1902, which is to us, as it was to the Babylonians, the completest and most perfect monument of their law. Fragments of copies found in Ashur-bani-pal's library at Nineveh, and others of new-Baby lonian date, prove that it was known to later ages from its opening words as "When the exalted Anu," and was studied for 1,500 years after its first composition. Of its relations with, and influence upon, the law of Israel much has been written which cannot be considered here. As to its own sources, some thing has already been said. Compiled from a mass of existing Sumerian law under which highly civilized cities had certainly lived for many centuries, it was probably issued in two versions, Sumerian and Semitic, though only the latter survives. What degree of actual novelty it possessed cannot now be estimated; perhaps it contained hardly anything that could not be found elsewhere, but its great distinction was that the articles were chosen with a view to universal application, not to the customs of any single city, but so as to "establish justice in Sumer and Akkad." In spite of a few primitive remains relating to family solidarity, district responsibility, trial by ordeal, and the lex talionis, the Code has advanced far beyond tribal custom, and recognizes no blood-feud, private retribution, or marriage by capture. The king is already the source of justice; the judges are strictly supervised, and appeal to the king is allowed. The whole land is covered with feudal holdings, masters of the levy, and police. There is a regular postal-system. The position of women is free and dignified.
Classes.—The Code contemplates the whole population as falling into three classes, called awelu, muskinu, and ardu. The first was the designation of the highest class, probably confined to officers of the court or the temple, though their qualifications are nowhere stated. They had aristocratic privileges and liabili ties, and the right to exact retaliation for corporal injuries, but they also bore the burden of heavier punishment for crimes and misdemeanours, with higher fees and fines to pay. The term became in time a mere courtesy-title, and indeed the class receives no illustration from the contracts. Even in the Code itself, when status is not concerned, the term simply means "a man, anyone." Below these persons of quality stood the muskinu, whose precise character is even more difficult to define, but it is not probable that they formed the bulk of the ordinary popu lation. The word came in time to mean "a beggar," and with that meaning has passed through Aramaic and Hebrew into many modern languages, but this is certainly not what is meant in the Code; he was free, but had to accept monetary compensation for corporal injuries, paid smaller fees and fines, and owed less valuable offerings to the gods. The ardu was a slave, his master's chattel, and belonged to a numerous class. He could acquire prop erty, and even hold other slaves. His master fed and clothed him, paid his doctor's fees, but took all compensation for injury done to him. His master usually gave him a slave-girl as wife (the children were then born slaves), often set him up in a house or business, and simply took a yearly rent. Otherwise he might marry a freewoman (the children were then free), who might bring him a dower which his master could not touch; at his death one half of his property passed to his master. Runaway slaves, if caught, had to be returned, for which a reward of two shekels, about one-tenth of the average value, was prescribed. To obtain, harbour, or smuggle away a slave was a capital offence. Slaves were indicated outwardly by a special identification mark on the head.
Property.—Complete private ownership of land is recognized by the Code, but all land was sold subject to its fixed charges. At least in later practice it was possible for the king to free land from these charges by charter, and the provinces or estates of faithful servants often enjoyed the royal bounty. Among these charges was that of providing men for the army and for the corvee, or statute labour, and a definite area had to find a cer tain number of men. Perhaps the greater part of the normal levy was supplied from the king's own estates, which were of vast extent. Upon part of these was settled a large population of officials and craftsmen, but particularly soldiers, mostly in occupation of a small holding granted for their maintenance in return for service. These fiefs were usually hereditary, and, in the case of soldiers, inalienable. When ordered out these soldiers could nominate a son, if of age, to hold the benefice and carry on the duty. If there was no son capable, the king put in a locum tenens, but granted one-third to the wife to maintain herself and children. Recruitment for the corvee was less regu larly effected ; it was customary to call for workmen and leave their selection to the local authorities. It seems that rent-paying tenants were exempt, and so were shepherds in charge of flocks. If a soldier was captured by the enemy, and had not sufficient property of his own to pay a ransom, this might be found by a merchant, who could claim reimbursement from the temple of the prisoner's city, or even from the palace itself ; the man's holding could not be sold for this purpose.
The temples, besides special gifts, often of great value, and regular income derived from estates and other property, received vast amounts of naturalia from sacrifices. Many families had rights to exercise the priesthood on certain days of the year, and the perquisites attached to these offices made the right a negoti able commodity, which could be pledged, rented, or shared within the family, but not alienated. The contracts reveal that the temples were resorted to for loans, particularly of seed-corn, or of ready money to pay harvesters. It is clear that the temples, in particular those dedicated to Ishtar, contained a large female population, mostly devoted to religious prostitution, the profits of which accrued to the temple. Despite this, such women enjoyed many privileges, but it was incompatible with their dignity to keep or to enter a tavern where the lower forms of vice were practised.
The Code recognizes many ways of disposing of property— sale, lease, barter, gift, dedication, deposit, loan, pledge, all of which were matters of contract. No claim is admitted unless substantiated by documents or the oath of witnesses. A buyer had to convince himself of the seller's title. If he bought, or received on deposit, from a minor or slave without power of attorney he would be executed as a thief ; if the goods were stolen, he was liable to death for receiving them, unless he could prove obtaining them by bona-fide purchase, in which case he must restore the goods, but had his remedy against the seller, from whose estate, if dead, he might claim five-fold. When a slave was bought abroad Lhe buyer had to satisfy himself that he had not been stolen or captured from Babylonia, for then he would have to restore his purchase without compensation. A defect of title or undisclosed liability would invalidate the sale.
Land might be farmed by the owner himself, by an employee, or by a tenant. The husbandman was bound to carry out the proper cultivation, raise an average crop, and leave the field in good tilth. In case the crop failed the Code fixed a statutory return. If land was let at a fixed rent, accidental loss fell on the tenant. If let on share-profit, landlord and tenant shared the loss in proportion to their agreed shares of the profit. Waste land might be taken over for reclamation rent-free for the first three years. If the work was neglected the Code directed the tenant to hand over in good tilth and fixed a statutory rent. The metayer system was in vogue especially on temple lands. The landlord found land, labour, animals, implements, seed, rations, and fodder; the rent was as contracted. Theft or mal versation of the material supplied was visited with fines or muti lation. The conduct of irrigation is regulated with a view to pre venting damage from a flood due to negligence. Houses were let usually for the year, rent being paid in advance half-yearly. The tenant was bound to keep the house in repair, but might use his own wooden fittings. Land was let on lease for house building for eight or ten years, the tenant being rent-free, after which the building reverted to the landlord.
Despite the multitude of slaves, hired labour was often needed, especially at harvest. Boys were sometimes sent out to work by their parents. The period of hiring might be for a year or for a few days only, and the rates of wages were fixed. Cattle were hired for ploughing, working irrigation-machines, carting, and threshing, at a fixed tariff. Oxen and sheep were committed to a herdsman, who gave a receipt for them and took them out to pasture. He was responsible for all care, must replace losses due to neglect, and attend to the breeding. Damages caused by beasts under his control had to be restored four or even i2-fold.
Payment in kind was as common as payment in cash. It was enacted that a debtor must be allowed to pay in produce according to a statutory scale. Debt was secured on the debtor's person. Distraint on a debtor's corn was forbidden, and the seizure of a working ox was fined. A debtor being seized for debt could nominate his wife, child, or slave to work off the debt; the wife or child could not be detained for more than three years. Death occurring through the creditor's neglect, he became liable to full compensation. In the matter of pledges, the Code enacted that the debtor should take the crop of a field himself and pay the creditor from it. If the crop failed, liability was held over for that year. The debtor's whole property might be pledged as security for payment, and personal guarantees were often given that the guarantor would be liable in case of default.
Exact rules controlled the caravan traffic. The travelling agent had to give a detailed receipt for all goods ; nothing could be claimed that was not in the inventory. If no profit was made he was bound to return double the value he had received; if only a small profit, he had to make up the deficiency, but was not responsible for loss by robbery or extortion. On his return he obtained a receipt, and profits were divided, usually equally. These caravans undertook carriage, with five-fold responsibility for loss, freights being generally paid in advance. Warehousing charges were one-sixtieth of the value, the accepter taking all risks and repaying double any deficiencies. Ships were hired at a fixed tariff according to their cargo capacity, inclusive of the crew's wages. Prices for shipbuilding were fixed, and were subject to one year's guarantee of seaworthiness. Boats under way were held responsible for collision with those at moorings, and the skippers of sunken craft refloated had to pay half their value as damages. Sale of intoxicants was subject to fixed prices, and the ale-wife must not suffer her premises to be used for disorderly or illegal purposes.
The contracts show that payment through a banker, or by written draft against deposit, was familiar. Bonds to pay were treated as negotiable. Interest was rarely charged on advances of seed by the temples or wealthy landowners, but in these cases the borrowers may have been tenants. Ordinary business borrow ing was effected at about 30%.
A man might divorce his wife at will, but he had to restore the dowry, and she held the custody of her children. Suitable alimony had to be provided, which the wife shared equally with the children. If she had no children, he returned the dowry and paid her a sum equivalent to the bride-price, or a mina of silver, if there had been none. If she had been a bad wife, however, he might divorce her while keeping the children and the dowry, or he might reduce her to bare maintenance as a slave in his house. She on her part might sue him for cruelty or neg lect, and might obtain a judicial separation, taking her dowry. If it was proved that the fault was upon her side she was to be drowned. If left in her husband's absence without maintenance she might cohabit with another man but must go back to her husband on his return, but if she had maintenance cohabitation would be adultery. When widowed, the wife took her husband's place and brought up the family, ultimately taking a child's share in the estate when the family grew up. She could remarry only by judicial consent, and subject to strict precautions that the first husband's estate should remain in trust for his children.
A childless wife might give her husband a maid to bear him children, who were reckoned hers. If the wife did this, the husband was not allowed a concubine ; if not, he might take one. A concubine was free and a wife, though of inferior rank to the first. She could be divorced only on the same conditions as the first wife. Yet a third class of mothers were slave-girls. Their children by their masters were born free ; the mother could not be sold, and was free on her master's death. Such children could be legitimized by the father's acknowledgment before wit nesses. In that case they ranked equally in sharing the paternal estate, but if they were not adopted the wife's children shared alone. If a free woman married a slave the children were free, and at his death the wife took her dowry with half of their joint savings to share with her children; the other half went to the slave's master.
A father had complete control over his children until their marriage, to dispose of their labour, and even of their persons for his profit. Mothers had the same right in the absence of the father, and so had even elder brothers when both parents were dead. Daughters were entirely in their father's power to give in marriage, or as the votary of a god, or as a concubine. Priestesses had full disposal of their property, but other daughters enjoyed only a life-interest in their dowry, which afterwards went to their children, or hack to their family if there were no chil dren. A father might, however, execute a deed granting his daughter power to leave her property to a favourite brother or sister. A daughter's estate was usually managed by her brothers, but if dissatisfied she could appoint a steward. If she married, her husband managed it. The son also seems to have received his share on marriage, but did not always then leave his father's house; he might bring his wife there.
Foundlings were commonly adopted, particularly by childless persons, and several laws regulated this practice. Such a son could not be reclaimed by his natural parents when reared to maturity by an adoptive father, unless the latter had early sought to return him. It was forbidden to cut off a son once adopted when subsequently children of a man's own were born ; the youth had a right to one-third of the personal property which would have fallen to him as heir, but the father was not bound to break up his real estate. Children adopted by eunuchs or temple-women (persons incapable of having natural children) were bound to them by absolute ties. No claim to recover pos session of them could be entertained, and any attempt on the child's part to renounce the relation, or rejoin his natural par ents, was visited with mutilation of the eye or tongue. A son adopted by a craftsman could be reclaimed only if he had not been taught the trade. From the contracts it appears that adop tion was often effected by agreement between the adopters and the natural parents, specifying what was to be the child's patri mony, and the punishment for any attempt of either party to renounce the relation. Adoption is, in certain contracts from outside Babylonia, very largely a matter of form, covering various economic arrangements between the two parties.
All legitimate children shared equally in the father's estate at death. When there were two mothers all children at one time shared equally, but later the first family took two-thirds. Chil dren shared their mother's, but not their stepmother's, property. If a son was to be disinherited the Code required judicial con sent, granted only for repeated unfilial conduct.
For adultery both parties were liable to drowning, but if the aggrieved husband pardoned his wife the king might do as much for the paramour. Incest was visited with death or exile according to its heinousness; seduction was punished by fines; sodomy is not mentioned in the Code.
Exile was inflicted for incest, disinheritance for repeated un filial conduct. Branding was the penalty for slander on a married woman or a priestess. The corrupt judge was permanently de prived of office, the extravagant wife and unfilial children were enslaved. Imprisonment is not recognized by the Code. The com monest penalty, of course, was a fine. This is awarded for corporal injuries to a muskinu or slave, for damages to property, and breach of contract. The restoration of goods improperly acquired or negligently damaged was usually accompanied by a fine.
The importance of intention was recognized. If the defendant swore that he had committed manslaughter unintentionally, he was only fined according to the rank of the deceased. The Code does not specify the punishment of wilful murder, but it was doubtless death. The owner of an ox which gored a man in the street was responsible only if the beast was known to be vicious. Accidents, or anything beyond due provision, were not generally imputed as offences. Poverty excused bigamy on the part of a deserted wife. On the other hand, carelessness and neglect were severely punished. The unskilful surgeon's mistakes might cost him the loss of his hands, or heavy fines; the veterinary surgeon and the builder of houses or ships had equally good reason to see that their work was irreproachable. Suspicion, in all cases, was not enough. The criminal must be taken in the act ; the thief found actually in possession of the stolen goods.