Babylonian law
Encyclopedia
Archaeological material for the study of Babylonia
n law is singularly extensive. So-called "contracts" exist in the thousands, including a great variety of deed
s, conveyances
, bonds, receipts, accounts, and most important of all, actual legal decisions given by the judges in the law courts. Historical inscriptions, royal charter
s and rescript
s, dispatches, private letters and the general literature afford welcome supplementary information. Even grammatical and lexicographical texts contain many extracts or short sentences bearing on law and custom. The so-called "Sumerian Family Laws" are preserved in this way. Other cultures involved with ancient Mesopotamia shared the same common laws and precedents, extending to the form of contacts that Kenneth Kitchen
has studied and compared to the form of contracts in the Bible with particular note to the sequence of blessings and curses that bind the deal. The instructions of Ptahhotep, Sharia Law, and Mosaic law also include certifications for professionals like doctors, lawyers and skilled craftsmen which prescribe penalties for malpractice very similar to the code of Hammurabi. The discovery of the now-celebrated Code of Hammurabi
(hereinafter simply termed "the Code") has made possible a more systematic study than could have resulted from just the classification and interpretation of other material. Some fragments of other codes exist and have been published, but there still remain many points whereof we have no evidence.
We have legal texts from the earliest writings through the Hellenistic period, but evidence on a particular point may be very full at one period and almost entirely lacking for another. The Code forms the backbone of the overview that is here reconstructed. Fragments of it recovered from Assur-bani-pal's library at Nineveh
and later Babylonia
n copies show that it was studied, divided into chapters, entitled Ninu ilu sirum from its incipit
(opening words), and recopied for fifteen hundred years or more. The greater part of it remained in force, even through the Persian, Greek
and Parthia
n conquests, which had little effect on private life in Babylonia; and it survived to influence Romans
. The laws and customs that preceded the Code, we shall call "early"; that of the Neo-Babylonian empire (as well as the Persian, Greek, etc.), "late". The law of Assyria
was derived from the Babylonian but conserved early features long after they had disappeared elsewhere.
demanded tribute
and military support from its subject cities but left their local cults and customs unaffected. City rights and usages were respected by kings and conquerors alike. When the Semitic
tribes settled in the cities of Mesopotamia, their tribal customs passed over into city law.
As late as the accession of Assur-bani-pal and Shamash-shum-ukin
, we find the Babylonians appending 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 multi-ethnic 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 Hammurabi
to make Babylon his metropolis and weld together his vast empire by a uniform system of law.
, police, etc. 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 records of judicial
decisions and that intercourse had assimilated city custom. The universal habit of writing, and perpetual recourse to written contract, further modified primitive custom and ancient precedent.
If the parties themselves could agree to the terms, the Code as a rule left them free to make contracts. Their deed of agreement was drawn up in the temple by a notary public
and confirmed with 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 executed may have been sufficient guarantee that its stipulations were not impious or illegal. Custom or public opinion doubtlessly ensured that the parties would not agree to "wrong". If a dispute arose, 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. 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 returned to the judges with orders to decide in accordance with it. The Code itself was carefully and logically arranged, its sections arranged by subject matter. Nevertheless, the order is not that of modern scientific treatise
s, so a somewhat different order than either is most convenient for our purpose.
See also: English translation of Hammurabi's Code
The amelu was originally a patrician, a man from an elite family, possessed of full civil rights, whose birth, marriage and death were registered. He had aristocrat
ic privileges and responsibilities, and the right to exact retaliation for corporal injuries, but was liable to a heavier punishment for crimes and misdemeanours, higher fees and fines. To this class belonged the king and court, the higher officials, the professions and craftsmen. Over time, the term became a mere courtesy title—already in the Code, when status is not concerned, it is used to denote anyone. There was no property qualification, nor does the term appear to be racial.
It is most difficult to characterize the mushkenu exactly. The term in time came to mean "a beggar", and 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, and 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 references 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 own other slaves. His master clothed and fed him and paid his doctor's fees, but took all compensation paid for injury done to him. His master usually found him a slave girl for a 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 free woman (the children were then free), who might bring him a dower that 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 mushkenu. Slaves were recruited by purchase abroad, from captives taken in war, or 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 shekel
s that the owner must pay the captor. It was about one-tenth of the average value of a slave. To detain or harbour a slave was punishable by death. So was an attempt to get him to leave the city. A slave bore an identification mark, removable only by a surgical operation, that later consisted of his owner's name tattooed or branded on the arm. On the other hand, on the great estates in Assyria
and its subject provinces there were many serfs, mostly of subject race, settled captives, or quondam slaves; tied to the soil they cultivated and sold with the estate, yet capable of possessing land and property of their own. There is little trace of serfs in Babylonia, unless the mushkenu is really a serf.
and an outer fringe of pasture; the citizens were his tenants. The god and his vice regent, the king, had long ceased to disturb tenancy and were content with fixed dues in naturalia, stock, money or service.
One of the earliest monuments records the purchase by a king of a large estate for his son, paying a fair market price and adding a handsome honorarium
to the many owners, in costly garments, plate, and precious articles of furniture. The Code recognizes complete private ownership of land but apparently extends the right to hold land to votaries and merchants; but all land sold was subject to its fixed charges. The king, however, could free land from these charges by charter
, which was a frequent way of rewarding those who deserved well of the state.
It is from these charters that we learn of the obligations lying upon land. The state demanded men for the army and the corvée
, as well as dues in kind. A certain area was bound to provide a bowman
, together with his linked pikeman (who bore the shield for both), and to furnish them with supplies for the campaign. This area was termed a "bow" as early as the 8th century BC, but the practice goes back much earlier. Later, a horseman was also due from certain areas. A man was only bound to serve a certain number of times, but the land still had to find a man annually. This service was usually discharged by slaves and serfs, but the amelu (and perhaps the mushkenu) also went to war. The bows were grouped together in tens and hundreds. The corvée was less regular. Special liabilities also lay upon riparian owners to repair canals, bridges, quays, etc. The letters of Hammurabi often deal with claims to exemption. Religious officials and shepherds in charge of flocks were exempt from military duty.
The state claimed certain proportions of all crops, stock, etc. The king's messengers could commandeer any subject's property, giving a receipt. Further, every city had its own octroi
duties, customs, ferry dues, highway and water rates. The king had long ceased to be owner of the land, if he ever was. He had his own royal estates, his private property, and dues from all his subjects. The higher officials had endowments and official residences.
The Code regulates the feudal position of certain classes. They held an estate from the king, consisting of a house, a garden, a field, stock, and a salary, on condition of personal service on the king's errand. They could not delegate the service, on penalty of death. When ordered abroad, they could nominate a capable son to hold the benefice and carry on the duty. If there was no capable son, the state put in a locum tenens but granted one-third to the wife to maintain herself and her children. The fief was otherwise inalienable; it could not be sold, pledged, exchanged, sublet, devised or diminished. Other land was leased from the state. Ancestral estate was strictly tied to the family. If a holder would sell, the family kept the right of redemption, and there seems to have been no time limit to its exercise.
s and other fixed dues, as well as from the sacrifices (a customary share) and other offerings of the faithful—vast amounts of all sorts of naturalia, besides money and permanent gifts. The larger temples had many officials and servants.
Originally, perhaps, each town clustered round one temple, and each head of family had a right to minister there and share its receipts. As the city grew, the right to so many days a year at one shrine (or its gate) descended within certain families and became a kind of property that could be pledged, rented or shared within the family, but not alienated. Despite all these demands, the temples became great granaries and storehouses and were also the city archive
s. The temple had its responsibilities. If a citizen was captured by the enemy and could not ransom
himself, the temple of his city must do so. To the temple came the poor farmer to borrow seed, grain, or supplies for harvesters, etc.—advances that he repaid without interest.
The king's power over the temple was not proprietary
, but administrative. He might borrow from it, but repaid like other borrowers. The tithe seems to have been considered the rent due to the god for his land. It is not clear that all lands paid tithe; perhaps only such as once had a special connection with the temple.
The Code deals with a class of persons devoted to the service of a god, as vestals
or hierodule
s. The vestals were vowed to chastity
, lived together in a great nunnery, were forbidden to enter a tavern
, and, together with other votaries, had many privileges.
, barter
, gift, dedication, deposit, loan, or pledge
, all of which were matters of contract. Sale was the delivery of a purchase (in the case of real estate
, symbolized by a staff, a key, or deed of conveyance) in return for purchase money, receipts being given for both. Credit, if given, was treated as a debt, and secured as a loan by the seller to be repaid by the buyer, for which he gave a bond.
The Code only allows claims substantiated by documents or the oath of witnesses. A buyer had to be sure of the seller's title. If he bought (or received on deposit) from a minor
or a slave without power of attorney
, he would be executed as a thief. If the goods were stolen and the rightful owner reclaimed them, he had to prove his purchase by producing the seller and the deed of sale, or witnesses to it; otherwise, he would be adjudged a thief and die. If he proved his purchase, he had to give up the property but could pursue a remedy against the seller or, if the seller had died, could reclaim fivefold from his estate.
A man who bought a slave abroad might find that he had previously been stolen or captured from Babylonia; he would then have to restore him to his former owner without recompense. If he bought property belonging to a feudal holding, or to a ward in Chancery, he had to return it as well as forfeit what he paid for it. He could repudiate the purchase of a slave attacked by the bennu sickness within a month (later, a hundred days) and could hold a newly purchased female slave for three days "on approval". A defect of title, or an undisclosed liability
, would invalidate a sale at any time.
, or rent it. The husbandman was bound to carry out proper cultivation, raise an average crop, and leave the field in good tilth
. In case the crop failed, the Code fixed a statutory return. Land might be leased at a fixed rent, where the Code stipulates that accidental loss fell on the tenant. If leased on profit-sharing terms, the landlord and tenant shared the loss proportionally to their stipulated share of profit. If the tenant paid his rent and kept the land in good tilth, the landlord could not interfere nor forbid subletting.
Wasteland could be leased for reclamation, the tenant being rent-free for three years and paying a stipulated rent in the fourth year. If the tenant neglected to reclaim the land, the Code stipulated that he must hand it over in good tilth and set a statutory rent. Gardens or plantations were leased in the same ways and under the same conditions; but for date groves, four years' free tenure was allowed.
The metayer system was common, especially on temple lands. The landlord found land, labour, ox
en for ploughing and working the watering machines, carting, threshing or other implements, grain seed, rations for the workmen and fodder
for the cattle
. The tenant
, or steward, usually had other land of his own. If he stole the seed, rations or fodder, the Code stipulated that his fingers be cut off. If he appropriated or sold the implements, or impoverished or sublet the cattle, he was heavily fined and in default of payment, might be condemned to be torn to pieces by the cattle on the field. Rent was determined by contract.
Irrigation
was essential for farming in this region. If the irrigator neglected to repair his dike or left his runnel open and caused a flood, he had to make good the damage done to his neighbours' crops or be sold with his family to pay the cost. The theft of a watering machine, water-bucket or other agricultural implement was heavily fined.
Houses were usually leased for the year, but also for longer terms, rent being paid in advance, half-yearly. The contract generally specified that the house be in good repair, and the tenant was bound to keep it so. The woodwork, including doors and door frames, was removable, and the tenant might bring and take away his own. The Code stipulated that if the landlord re-entered before the term was up, he must remit a fair proportion of the rent. Land could be leased for the purpose of building houses or other buildings on it, the tenant being rent-free for eight or ten years; after which the building came into the landlord's possession.
against fulfillment of the work. Cattle were hired for ploughing, working the watering machines, carting, threshing, etc. The Code fixed a statutory wage for sowers, ox-drivers, field-labourers, and hire for oxen, asses
, etc.
There were many herds and flocks. The flocks were committed to a shepherd, who gave receipt for them and took them out to pasture. The Code fixed his wage. He was responsible for all care, must restore ox for ox, sheep for sheep and must breed them satisfactorily. Any dishonest use of the flock had to be repaid tenfold, but loss due to disease or wild beasts fell upon the owner. The shepherd made good all loss due to his own neglect. If he let the flock feed on a field of crops, he had to pay damages fourfold; if he turned them into standing crops when they ought to have been folded, he paid twelvefold.
, Assyria
, Carchemish
, etc. The Code stipulated, however, that a debtor must be allowed to pay in produce according to a statutory scale. If a debtor had neither money nor crops, the creditor must not refuse goods.
Debt was secured on the debtor's own person. Distraint
on a debtor's grain was forbidden by the Code; not only must the creditor return it, but his illegal action forfeited his claim altogether. An unwarranted seizure for debt was fined, as was the distraint of a working ox.
If a debtor were seized for debt, he could nominate as mancipium, or hostage to work off the debt, his wife, child, or slave. The creditor could only hold a wife or child three years as mancipium. If the mancipium died a natural death while in the creditor's possession, no claim could lie against the latter; but if he was the cause of death by cruelty, he had to give son for son, or pay for a slave. He could sell a slave-hostage, but not a slave-girl who had borne her master children; she had to be redeemed by her owner.
The debtor could also pledge his property and in contracts, often pledged a field, house or crop. The Code stipulated, however, that the debtor must take the crop himself and pay the creditor from its yield. If the crop failed, payment was deferred, and no interest could be charged for that year. If the debtor did not cultivate the field himself, he had to pay for its cultivation, but if the field was already cultivated, he must harvest it himself and pay his debt from the crop. If the cultivator did not get a crop, this would not cancel his contract.
Pledges were often made where the intrinsic value of the article was equivalent to the amount of the debt; but antichretic pledge was more common, where the profit of the pledge was a set-off against the interest of the debt. The whole property of a debtor might be pledged as collateral for payment of a debt, without any of it passing through the hands of the creditor. Personal guarantees were often given in Babylon that the debtor would repay, or the guarantor become liable himself.
s travelled far beyond the limits of the empire.
The Code insisted that the agent should inventory and give a receipt for all that he received. No claim could be made for anything not so entered. Even if the agent made no profit, he was bound to return double what he had received; if he made poor profit, he had to make up the deficiency; but he was not responsible for loss by robbery or extortion
on his travels. On his return, the lending merchant must give him a receipt for what was handed over to him. Any false entry or claim on the agent's part was penalised threefold; on the lending merchant's part, sixfold. In normal cases, profits were divided according to contract, usually equally.
A considerable amount of forwarding (advancing wares to the agent up front) was done by the caravans. The carrier gave a receipt for the consignment, took all responsibility, and exacted a receipt upon delivery. If he defaulted, he paid fivefold. He was usually paid in advance. Deposit, especially warehousing of grain, was charged for at one-sixtieth. The warehouse man took all risks and paid double for all shortage, but no claim could be made unless he had given a properly witnessed receipt.
Water traffic on the Euphrates
and canal system was early on, quite considerable. Ships, whose tonnage was estimated by the amount of grain they could carry, were continually hired for the transport of all kinds of goods. The Code fixes the price for shipbuilding
and insists on the builder's giving a year's guarantee of seaworthiness. It also fixes the rate of hire for ship and crew. The captain was responsible for the freight and the ship; he had to replace all loss. Even if he refloated the ship, he had to pay a fine of half its value for sinking it. In the case of collision, the boat under way was responsible for damages to the boat at anchor.
The Code also regulated the liquor traffic—fixing a fair price for beer and forbidding the connivance of the tavern keeper (a female) at disorderly conduct or treason
able assembly, under pain of death. She was required to take the offenders to the palace—implying an efficient and accessible police system.
Payment through a banker or by written draft against deposit was frequent. Bonds to pay were treated as negotiable. Interest was rarely charged on advances by the temple or wealthy landowners for pressing needs, but this may have been part of the metayer system. The borrowers may have been tenants. Interest was charged at very high rates for overdue loans of this kind. Merchants (and even temples in some cases) made ordinary business loans, charging from 20% to 30%.
retained the form of purchase, but was essentially a contract to be husband and wife together. The marriage of young people was usually arranged between their relatives—the groom's father providing the bride-price, which, with other gifts, the suitor ceremonially presented to the bride's father. This bride-price was usually then handed over by her father to the bride upon her marriage, and so returned into the bridegroom's possession, along with her dowry
, which was her portion of the family's inheritance as a daughter.
The bride-price varied greatly, according to the status of the parties, but surpassed the price of a slave. The Code stipulated that if the father did not give the suitor his daughter after accepting the suitor's gifts, he must return the gifts. The bride-price had to be returned even if the father reneged on the marriage contract because of slander of the suitor on the part of the suitor's friend, and the Code stipulated that the slanderer should not marry the girl (and thus would not profit from his slander). Conversely, if a suitor changed his mind, he forfeited the presents.
The dowry might include real estate, but generally consisted of personal effects and household furniture. It remained the wife's for life, descending to her children, if any; otherwise returning to her family, when the husband could deduct the bride-price if it had not been given to her, or return it if it had.
The marriage ceremony included joining hands and the bridegroom uttering a formula of acceptance, such as, "I am the son of nobles, silver and gold shall fill thy lap, thou shalt be my wife, I will be thy husband. Like the fruit of a garden I will give thee offspring." The ceremony must be performed by a freeman.
The marriage contract—without which, the Code ruled that the woman was no wife—usually stated the consequences to which each party was liable for repudiating the other. These by no means necessarily agree with the Code. Many other conditions might also be inserted: such as that the wife should act as maidservant to her mother-in-law or to a first wife.
The married couple formed a single unit in terms of external responsibility, especially for debt. The man was responsible for debts contracted by his wife, even before her marriage, as well as for his own; but he could use her as a mancipium. Hence the Code allowed a proviso to be inserted in the marriage contract, that the wife should not be seized for her husband's pre-nuptial debts; but stipulated that then he was not responsible for her pre-nuptial debts, and, in any case, that both together were responsible for all debts contracted after marriage. A man might make his wife a settlement by deed of gift, which gave her a life interest in part of his property, and he might reserve to her the right to bequeath it to a favorite child; but she could in no case leave it to her family. Although married, she always remained a member of her father's house—she is rarely named wife of A, but usually daughter of B, or mother of C.
was the husband's option, but he had to restore the dowry, and if the wife had borne him children, she had custody of them. He then had to assign her the income from property, as well as goods to maintain herself and their children until they grew up. She shared equally with their children in the allowance (and apparently in his estate at his death) and was free to marry again. If she had no children, he returned her dowry to her and paid her a sum equivalent to the bride-price, or a mina
of silver if there had been none. The latter is the forfeit usually named in the contract for his repudiation
of her.
If the husband could show that his wife had been a bad wife, the Code allowed him to send her away, while he kept the children as well as her dowry; or he could degrade her to the position of a slave in his own house, where she would have food and clothing. The wife might bring an action against her husband for cruelty and neglect and, if she proved her case, obtain a judicial separation, taking her dowry with her. No other punishment fell on the man. If she did not prove her case, but was proved to be a bad wife, she was drowned.
If the wife was left without maintenance during an involuntary absence of her husband (called to war, etc.), she could cohabit with another man, but must return to her husband when he came back, the children of the second union remaining with their own father. If she had maintenance, a breach of the marriage tie was adultery. Willful desertion by, or exile of, the husband dissolved the marriage without penalty to the wife. If he returned, she was not required or even permitted to return to him.
If she did not remarry, she lived on in her husband's house and, when the children had grown up, took a child's share in the division of his estate. She retained her dowry and any settlement deeded to her by her husband. This property would come down to her children on her death. If she had remarried, all her children would share equally in her dowry, but the first husband's estate fell only to his children, or to her selection among them, if so empowered.
was the rule, and a childless wife might give her husband a maid to bear him children, who were then reckoned hers. She remained mistress of her maid, and might degrade her to slavery again for insolence, but could not sell her if she had borne her husband children. If the wife did this, the Code did not allow the husband to take a concubine; but if she did not, he could do so. The concubine was a co-wife, though not of the same rank; the first wife had no power over her. A concubine was a free woman, often dowered for marriage, and her children were legitimate and lawful heirs. She could only be divorced on the same conditions as a wife.
If a wife became a chronic invalid, the husband was bound to maintain her in the home they had made together, unless she preferred to take her dowry and return to her father's house; but he was free to remarry. Again, the children of the new wife were legitimate and lawful heirs.
There was no hindrance to a man having children by a slave girl. These children were free, and their mother then could not be sold, though she might be pledged, and she became free upon her master's death. Her children could be legitimized by their father's acknowledgment before witnesses and were often adopted. They then ranked equally in sharing their father's estate; but if not adopted, the wife's children divided and took first choice.
Temple priests
were not supposed to have children, yet they could marry and often did. The Code contemplated that such a wife would give a husband a maid, as above.
Free women might marry slaves and still be dowered for the marriage. The children were free, and at the slave's death, the wife took her dowry and half of what she and her husband had acquired in wedlock for self and children; the master taking the other half, as his slave's heir.
A father had control over his children until their marriage. He had a right to their labor in return for their keep. He might hire them out and receive their wages, pledge them for debt, or even sell them outright. Mothers had the same rights in the absence of the father; elder brothers, when both parents were dead. A father had no claim on his married children for support, but they retained the right to inherit on his death.
The daughter was not only in her father's power to be given in marriage, but he might dedicate her to the service of a god as a vestal or a hierodule or give her as a concubine. She had no choice in these matters, often decided in her childhood. An adult daughter might wish to become a votary, perhaps in preference to an uncongenial marriage, and it seems that her father could not refuse her wish.
In all these cases, the father might dower her. If he did not, on his death the brothers were obligated to do so, giving her a full child's share if a wife, a concubine or a vestal, but one-third of a child's share if she were a hierodule or a Marduk
priestess. The latter had the privilege of exemption from state dues and absolute disposal of her property. All other daughters had only a life interest in their dowry, which reverted to their family if childless or went to their children if they had any. A father might, however, execute a deed granting a daughter power to leave her property to a favorite brother or sister.
A daughter's estate was usually managed for her by her brothers, but if they dissatisfied her, she could appoint a steward. If she married, her husband then managed it. Sons also appear to have received their share on marriage, but then did not always leave their father's house; they might bring their wives there. This was usual in child marriage
s.
was very common, especially when the father (or mother) was childless or had seen all his children grow up and marry away. The child was then adopted to care for the parents' old age. This was done by contract, which usually specified what the parent had to leave and what maintenance was expected. The natural children, if any, were usually consenting parties to an arrangement that cut off their expectations. In some cases they even acquired the estate for the adopted child who was to relieve them of care. If the adopted child failed to carry out the filial duty, the contract was annulled in the law courts. Slaves were often adopted, and if they proved unfilial, were reduced to slavery again.
A craftsman often adopted a son to learn the craft. He profited by the son's labour. If he failed to teach his son the craft, that son could prosecute him and get the contract annulled. This was a form of apprenticeship
, and it is not clear whether the apprentice had any filial relation.
A man who had adopted a child, and afterwards married and had a family of his own, could dissolve the contract and must give the adopted child one-third of a child's share in goods, but no real estate. Property could only descend through his legitimate family. Vestals frequently adopted daughters, usually other vestals, to care for them in their old age.
Adoption had to be with consent of the natural parents, who usually executed a deed making over the child, who thus ceased to have any claim upon them. But vestals, hierodules, certain palace officials and slaves had no rights over their children and could raise no objection. Orphans and illegitimate children had no parents to object. Ingratitude by adopted children was severely frowned on by the law: if the adopted child of a prostitute abandoned his foster parents and returned to his biological father's house, his eye was torn out. If an adopted child rejected his foster parents, claiming they were not his mother and father, his tongue was torn out. An adopted child was a full heir; the contract might even assign him the position of eldest son. Usually, he was residuary legatee.
and, after considering what each had already received, equalized the shares. He even made grants in excess to the others from his own share. If there were two widows with legitimate issue, both families shared equally in the father's estate, until later times, when the first family took two-thirds. Daughters, in the absence of sons, had sons' rights. Children also shared their own mother's property, but had no share in that of a stepmother.
A father could disinherit a son in early times without restriction, but the Code insisted upon judicial consent, and that only for repeated unfilial conduct. In early times, the son who denied his father had his front hair shorn and a slave-mark put on him and could be sold as a slave; while the son who denied his mother had his front hair shorn, was driven round the city as an example and expelled from his home, but not degraded to slavery.
was punished with the death of both parties by drowning; but if the husband was willing to pardon his wife, the king might intervene to pardon the paramour. For incest
between mother and son, both were burned to death
; with a stepmother, the man was disinherited; with a daughter, the man was exiled; with a daughter-in-law, he was drowned; with a son's fiancée, he was fined. A wife who for her lover's sake procured her husband's death was gibbet
ed. A betrothed girl seduced by her prospective father-in-law took her dowry and returned to her family and was free to marry as she chose.
, the ruling principle was the lex talionis. Eye for eye, tooth for tooth, limb for limb was the penalty for assault upon an amelu. A sort of symbolic retaliation was the punishment for the offender, seen in cutting off the hand that struck a father or stole a trust; in cutting off the breast of a wet nurse
who switched the child entrusted to her for another; in the loss of the tongue that denied father or mother (in Elam
ite contracts, the same penalty was inflicted for perjury
); in the loss of the eye that pried into forbidden secrets. The loss of the surgeon's hand that caused loss of life or limb, or the brander's hand that obliterated a slave's identification mark, are very similar. The slave who struck a freeman or denied his master lost an ear, the organ of hearing and symbol of obedience. A person who brought another into danger of death by false accusation was punished by death. A perjurer was punished by the same penalty the perjurer sought to bring upon another.
The death penalty was freely rendered for theft and other crimes in this section of the Code: for theft involving entering a palace or temple treasury, for illegal purchase from a minor or slave, for selling stolen goods or receiving the same, for common theft in the open (in lieu of multiple-fold restoration) or receiving the same, for false claim to goods, for kidnapping
, for assisting or harbouring fugitive
slaves, for detaining or appropriating the same, for brigandage
, for fraudulent sale of drink, for not reporting criminal conspiracy in one's tavern, for delegation of personal service and refusing to pay the delegate or not sending the delegate, for misappropriating the levy, for harming or robbing one of the king's captains, for causing the death of a house owner through bad construction. The manner of death is not specified for these cases.
This death penalty was also set for conduct that placed another in danger of death. The form of death penalty was specified for the following cases: gibbeting: for burglary
(on the spot where crime was committed), later also for encroaching on the king's highway, for getting a slave-brand obliterated, for procuring a husband's death; burning: for incest with own mother, for a vestal entering or opening a tavern, for looting a house on fire (thrown into the fire); drowning: for adultery, rape of a betrothed maiden, bigamy, bad conduct as a wife, seduction of a daughter-in-law.
A curious extension of the lex talionis is the death of a creditor's son for his father's having caused the death of a debtor's son as mancipium; of a builder's son for his father's causing the death of a house owner's son by bad construction; the death of a man's daughter because her father caused the death of another man's daughter.
Contracts naturally do not usually touch on criminal matters as the above, but marriage contracts do specify death by strangling, drowning, precipitation from a tower or pinnacle of the temple, or by the iron sword, for a wife's repudiation of her husband. We are quite without evidence as to the executioner in all these cases.
Exile
was inflicted for incest with a daughter; disinheritance for incest with a stepmother, or for repeated unfilial conduct. Sixty strokes of an ox-hide scourge
were awarded for a brutal assault on a superior, both being amelu. Branding (perhaps the equivalent of degradation to slavery) was the penalty for slander of a married woman or vestal. Permanent deprivation of office fell upon the corrupt judge. Enslavement befell the extravagant wife and unfilial children. Imprisonment was common, but is not mentioned in the Code.
The commonest of all penalties was a fine. This is awarded by the Code for corporal injuries to a mushkenu or to a slave (paid to his master), for damages done to property, or for breach of contract. The restoration of goods appropriated, illegally bought, or damaged by neglect, was usually accompanied by a fine, giving it the form of multiple restoration. This might be double, treble, fourfold, fivefold, sixfold, tenfold, twelvefold, or even thirtyfold, according to the enormity of the offence.
The Code recognized the importance of intent. A man who killed another in a quarrel must swear he did not do so intentionally and was then only fined according to the rank of the deceased. The Code does not say what would be the penalty of murder, but death is so often awarded where death is caused, that we can hardly doubt that the murderer was put to death. If the assault only led to injury and was unintentional, the assailant in a quarrel had to pay the doctor's fees. A brander, induced to remove a slave's identification mark, could swear to his ignorance and was free. The owner of an ox that gored a man on the street was only responsible for damages if the ox was known by him to be vicious—even if it caused death. If the mancipium died a natural death under the creditor's hand, the creditor was free. In ordinary cases, a person was not responsible for accident or if they excersized more than proper care. Poverty excused bigamy on the part of a deserted wife.
On the other hand, carelessness and neglect were severely punished, as in the case of the unskillful physician, if it led to loss of life or limb, his hands were cut off; a slave had to be replaced, the loss of his eye paid for by half his value; a veterinary surgeon who caused the death of an ox or donkey paid quarter value; a builder whose careless workmanship caused death lost his life or paid for it by the death of his child, replaced slave or goods and in any case, had to rebuild the house or make good any damages due to defective building and repair the defect as well. The boat builder had to make good any defect of construction or damage due to it for a year's warranty
.
Throughout the Code, respect is paid to evidence. Suspicion was not enough. The criminal must be taken in the act, e.g. the adulterer, etc. A man could not be convicted of theft unless the goods were found in his possession.
In the case of a lawsuit, the plaintiff proferred his own plea. There is no trace of professional advocates, but the plea had to be in writing, and the notary doubtlessly assisted in the drafting of it. The judge saw the plea, called the other parties before him, and sent for the witnesses. If these were not at hand, he might adjourn the case for their subpoena
, specifying a time for up to six months. Pledges might be made to produce the witnesses on a fixed day.
The more important cases, especially those involving life and death, were tried by a bench of judges. With the judges were associated a body of elders who shared in the decision, but whose exact function is not yet clear. Agreements, declarations and non-contentious cases were usually witnessed by one judge and twelve elders.
Parties and witnesses were put on oath. The penalty for false witness was usually the punishment that would have been awarded the victim if convicted. In matters beyond human knowledge, such as the guilt or innocence of an alleged practitioner of magic or a suspected wife, the ordeal by water was used. The accused jumped into the sacred river, and the innocent swam while the guilty drowned. The accused could clear himself by taking an oath if the only knowledge available was his own. The plaintiff could swear to his loss by brigands, the price paid for a slave purchased abroad, or the sum due to him; but great stress was laid on the production of written evidence. It was a serious thing to lose a document. The judges might be satisfied of its existence and terms by the affidavit
of the witnesses to it and then issue an order that whenever found, it should be submitted. The clay tablets of contracts that were annulled were broken. The court might even travel to view the property and take with them the sacred symbols with which oaths were made.
Court decisions were set in writing, sealed and witnessed by the judges, the elders, witnesses, and a scribe. Women might act in all these capacities. The parties swore an oath, included in the document, to observe its stipulations. Each party received a copy, and one was kept by the scribe to be stored in the archives.
Appeal to the king was allowed and is well attested. The judges at Babylon seem to have formed a superior court to those of provincial towns, but a defendant might elect to answer the charge before the local court and refuse to plead at Babylon.
Finally, it may be noted that many immoral acts, such as the use of false weights, lying, etc., that could not be brought into court are severely denounced in the Omen Tablets as likely to bring the offender into "the hand of God" as opposed to "the hand of the king".
Babylonia
Babylonia was an ancient cultural region in central-southern Mesopotamia , with Babylon as its capital. Babylonia emerged as a major power when Hammurabi Babylonia was an ancient cultural region in central-southern Mesopotamia (present-day Iraq), with Babylon as its capital. Babylonia emerged as...
n law is singularly extensive. So-called "contracts" exist in the thousands, including a great variety of deed
Deed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...
s, conveyances
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
, bonds, receipts, accounts, and most important of all, actual legal decisions given by the judges in the law courts. Historical inscriptions, royal charter
Royal Charter
A royal charter is a formal document issued by a monarch as letters patent, granting a right or power to an individual or a body corporate. They were, and are still, used to establish significant organizations such as cities or universities. Charters should be distinguished from warrants and...
s and rescript
Rescript
A rescript is a document that is issued not on the initiative of the author, but in response to a specific demand made by its addressee...
s, dispatches, private letters and the general literature afford welcome supplementary information. Even grammatical and lexicographical texts contain many extracts or short sentences bearing on law and custom. The so-called "Sumerian Family Laws" are preserved in this way. Other cultures involved with ancient Mesopotamia shared the same common laws and precedents, extending to the form of contacts that Kenneth Kitchen
Kenneth Kitchen
Kenneth Anderson Kitchen is Personal and Brunner Professor Emeritus of Egyptology and Honorary Research Fellow at the School of Archaeology, Classics and Egyptology, University of Liverpool, England...
has studied and compared to the form of contracts in the Bible with particular note to the sequence of blessings and curses that bind the deal. The instructions of Ptahhotep, Sharia Law, and Mosaic law also include certifications for professionals like doctors, lawyers and skilled craftsmen which prescribe penalties for malpractice very similar to the code of Hammurabi. The discovery of the now-celebrated Code of Hammurabi
Code of Hammurabi
The Code of Hammurabi is a well-preserved Babylonian law code, dating to ca. 1780 BC . It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a human-sized stone stele and various clay...
(hereinafter simply termed "the Code") has made possible a more systematic study than could have resulted from just the classification and interpretation of other material. Some fragments of other codes exist and have been published, but there still remain many points whereof we have no evidence.
We have legal texts from the earliest writings through the Hellenistic period, but evidence on a particular point may be very full at one period and almost entirely lacking for another. The Code forms the backbone of the overview that is here reconstructed. Fragments of it recovered from Assur-bani-pal's library at Nineveh
Nineveh
Nineveh was an ancient Assyrian city on the eastern bank of the Tigris River, and capital of the Neo Assyrian Empire. Its ruins are across the river from the modern-day major city of Mosul, in the Ninawa Governorate of Iraq....
and later Babylonia
Babylonia
Babylonia was an ancient cultural region in central-southern Mesopotamia , with Babylon as its capital. Babylonia emerged as a major power when Hammurabi Babylonia was an ancient cultural region in central-southern Mesopotamia (present-day Iraq), with Babylon as its capital. Babylonia emerged as...
n copies show that it was studied, divided into chapters, entitled Ninu ilu sirum from its incipit
Incipit
Incipit is a Latin word meaning "it begins". The incipit of a text, such as a poem, song, or book, is the first few words of its opening line. In music, it can also refer to the opening notes of a composition. Before the development of titles, texts were often referred to by their incipits...
(opening words), and recopied for fifteen hundred years or more. The greater part of it remained in force, even through the Persian, Greek
Greece
Greece , officially the Hellenic Republic , and historically Hellas or the Republic of Greece in English, is a country in southeastern Europe....
and Parthia
Parthia
Parthia is a region of north-eastern Iran, best known for having been the political and cultural base of the Arsacid dynasty, rulers of the Parthian Empire....
n conquests, which had little effect on private life in Babylonia; and it survived to influence Romans
Roman Empire
The Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....
. The laws and customs that preceded the Code, we shall call "early"; that of the Neo-Babylonian empire (as well as the Persian, Greek, etc.), "late". The law of Assyria
Assyrian law
Assyrian law was very similar to Sumerian and Babylonian law, however, notably more brutal than its predecessors. The first copy of the code to come to light, dated to the reign of Tiglath-Pileser I, was discovered in the course of excavations by the German Oriental Society . Three Assyrian law...
was derived from the Babylonian but conserved early features long after they had disappeared elsewhere.
Tribal influence
The early history of Mesopotamia is the story of a struggle for supremacy between the cities. A metropolisColonies in antiquity
Colonies in antiquity were city-states founded from a mother-city—its "metropolis"—, not from a territory-at-large. Bonds between a colony and its metropolis remained often close, and took specific forms...
demanded tribute
Tribute
A tribute is wealth, often in kind, that one party gives to another as a sign of respect or, as was often the case in historical contexts, of submission or allegiance. Various ancient states, which could be called suzerains, exacted tribute from areas they had conquered or threatened to conquer...
and military support from its subject cities but left their local cults and customs unaffected. City rights and usages were respected by kings and conquerors alike. When the Semitic
Semitic
In linguistics and ethnology, Semitic was first used to refer to a language family of largely Middle Eastern origin, now called the Semitic languages...
tribes settled in the cities of Mesopotamia, their tribal customs passed over into city law.
As late as the accession of Assur-bani-pal and Shamash-shum-ukin
Shamash-shum-ukin
Shamash-shum-ukin was the Assyrian king of Babylon from 668-648 BC.He was the second son of the Assyrian King Esarhaddon. His elder brother, crown prince Sin-iddina-apla had died in 672, and in his stead the third son Ashurbanipal was invested as crown prince and later king of Assyria, while...
, we find the Babylonians appending 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 multi-ethnic 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 Hammurabi
Hammurabi
Hammurabi Hammurabi Hammurabi (Akkadian from Amorite ʻAmmurāpi, "the kinsman is a healer", from ʻAmmu, "paternal kinsman", and Rāpi, "healer"; (died c...
to make Babylon his metropolis and weld together his vast empire by a uniform system of law.
Hammurabi's code
By Hammurabi's time, almost all trace of tribal custom had already disappeared from the law of the Code. It is state law—self-help, blood-feud, and marriage by capture, are all absent; though code of family solidarity, district responsibility, ordeal, and the lex talionis (an eye for an eye), 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. Judges are strictly supervised, and appeal is allowed. The whole land is covered with feudal holdings, masters of the levyLevy
Levy, Lévy or Levies may refer to:* Levy * Levy's , Arizona chain* Levy County, Florida- Military organizations :* Aden Protectorate Levies* Iraq Levies* Kachin Levies* Malakand Levies* Swat Levies...
, police, etc. 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
Mediterranean Sea
The Mediterranean Sea is a sea connected to the Atlantic Ocean surrounded by the Mediterranean region and almost completely enclosed by land: on the north by Anatolia and Europe, on the south by North Africa, and on the east by the Levant...
. 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
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
in ancient deeds and records of judicial
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
decisions and that intercourse had assimilated city custom. The universal habit of writing, and perpetual recourse to written contract, further modified primitive custom and ancient precedent.
If the parties themselves could agree to the terms, the Code as a rule left them free to make contracts. Their deed of agreement was drawn up in the temple by a notary public
Notary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
and confirmed with 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 executed may have been sufficient guarantee that its stipulations were not impious or illegal. Custom or public opinion doubtlessly ensured that the parties would not agree to "wrong". If a dispute arose, 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. 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 returned to the judges with orders to decide in accordance with it. The Code itself was carefully and logically arranged, its sections arranged by subject matter. Nevertheless, the order is not that of modern scientific treatise
Treatise
A treatise is a formal and systematic written discourse on some subject, generally longer and treating it in greater depth than an essay, and more concerned with investigating or exposing the principles of the subject.-Noteworthy treatises:...
s, so a somewhat different order than either is most convenient for our purpose.
See also: English translation of Hammurabi's Code
Three classes
The Code contemplates the whole population as falling into three classes: the amelu, the mushkenu and the ardu.The amelu was originally a patrician, a man from an elite family, possessed of full civil rights, whose birth, marriage and death were registered. He had aristocrat
Aristocracy (class)
The aristocracy are people considered to be in the highest social class in a society which has or once had a political system of Aristocracy. Aristocrats possess hereditary titles granted by a monarch, which once granted them feudal or legal privileges, or deriving, as in Ancient Greece and India,...
ic privileges and responsibilities, and the right to exact retaliation for corporal injuries, but was liable to a heavier punishment for crimes and misdemeanours, higher fees and fines. To this class belonged the king and court, the higher officials, the professions and craftsmen. Over time, the term became a mere courtesy title—already in the Code, when status is not concerned, it is used to denote anyone. There was no property qualification, nor does the term appear to be racial.
It is most difficult to characterize the mushkenu exactly. The term in time came to mean "a beggar", and that meaning has passed through Aramaic
Aramaic language
Aramaic is a group of languages belonging to the Afroasiatic language phylum. The name of the language is based on the name of Aram, an ancient region in central Syria. Within this family, Aramaic belongs to the Semitic family, and more specifically, is a part of the Northwest Semitic subfamily,...
and Hebrew
Hebrew language
Hebrew is a Semitic language of the Afroasiatic language family. Culturally, is it considered by Jews and other religious groups as the language of the Jewish people, though other Jewish languages had originated among diaspora Jews, and the Hebrew language is also used by non-Jewish groups, such...
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, and 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 references 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 own other slaves. His master clothed and fed him and paid his doctor's fees, but took all compensation paid for injury done to him. His master usually found him a slave girl for a 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 free woman (the children were then free), who might bring him a dower that 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 mushkenu. Slaves were recruited by purchase abroad, from captives taken in war, or 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 shekel
Shekel
Shekel , is any of several ancient units of weight or of currency. The first usage is from Mesopotamia around 3000 BC. Initially, it may have referred to a weight of barley...
s that the owner must pay the captor. It was about one-tenth of the average value of a slave. To detain or harbour a slave was punishable by death. So was an attempt to get him to leave the city. A slave bore an identification mark, removable only by a surgical operation, that later consisted of his owner's name tattooed or branded on the arm. On the other hand, on the great estates in Assyria
Assyria
Assyria was a Semitic Akkadian kingdom, extant as a nation state from the mid–23rd century BC to 608 BC centred on the Upper Tigris river, in northern Mesopotamia , that came to rule regional empires a number of times through history. It was named for its original capital, the ancient city of Assur...
and its subject provinces there were many serfs, mostly of subject race, settled captives, or quondam slaves; tied to the soil they cultivated and sold with the estate, yet capable of possessing land and property of their own. There is little trace of serfs in Babylonia, unless the mushkenu is really a serf.
Citizens tenants of gods
The god of a city was originally considered the owner of its land, which encircled it with an inner ring of irrigable arable landArable land
In geography and agriculture, arable land is land that can be used for growing crops. It includes all land under temporary crops , temporary meadows for mowing or pasture, land under market and kitchen gardens and land temporarily fallow...
and an outer fringe of pasture; the citizens were his tenants. The god and his vice regent, the king, had long ceased to disturb tenancy and were content with fixed dues in naturalia, stock, money or service.
One of the earliest monuments records the purchase by a king of a large estate for his son, paying a fair market price and adding a handsome honorarium
Honorarium
An honorarium is an ex gratia payment made to a person for their services in a volunteer capacity or for services for which fees are not traditionally required. This is used by groups such as schools or sporting clubs to pay coaches for their costs...
to the many owners, in costly garments, plate, and precious articles of furniture. The Code recognizes complete private ownership of land but apparently extends the right to hold land to votaries and merchants; but all land sold was subject to its fixed charges. The king, however, could free land from these charges by charter
Charter
A charter is the grant of authority or rights, stating that the granter formally recognizes the prerogative of the recipient to exercise the rights specified...
, which was a frequent way of rewarding those who deserved well of the state.
It is from these charters that we learn of the obligations lying upon land. The state demanded men for the army and the corvée
Corvée
Corvée is unfree labour, often unpaid, that is required of people of lower social standing and imposed on them by the state or a superior . The corvée was the earliest and most widespread form of taxation, which can be traced back to the beginning of civilization...
, as well as dues in kind. A certain area was bound to provide a bowman
Archery
Archery is the art, practice, or skill of propelling arrows with the use of a bow, from Latin arcus. Archery has historically been used for hunting and combat; in modern times, however, its main use is that of a recreational activity...
, together with his linked pikeman (who bore the shield for both), and to furnish them with supplies for the campaign. This area was termed a "bow" as early as the 8th century BC, but the practice goes back much earlier. Later, a horseman was also due from certain areas. A man was only bound to serve a certain number of times, but the land still had to find a man annually. This service was usually discharged by slaves and serfs, but the amelu (and perhaps the mushkenu) also went to war. The bows were grouped together in tens and hundreds. The corvée was less regular. Special liabilities also lay upon riparian owners to repair canals, bridges, quays, etc. The letters of Hammurabi often deal with claims to exemption. Religious officials and shepherds in charge of flocks were exempt from military duty.
The state claimed certain proportions of all crops, stock, etc. The king's messengers could commandeer any subject's property, giving a receipt. Further, every city had its own octroi
Octroi
Octroi is a local tax collected on various articles brought into a district for consumption.-Antiquity:Octroi taxes have a respectable antiquity, being known in Roman times as vectigalia...
duties, customs, ferry dues, highway and water rates. The king had long ceased to be owner of the land, if he ever was. He had his own royal estates, his private property, and dues from all his subjects. The higher officials had endowments and official residences.
The Code regulates the feudal position of certain classes. They held an estate from the king, consisting of a house, a garden, a field, stock, and a salary, on condition of personal service on the king's errand. They could not delegate the service, on penalty of death. When ordered abroad, they could nominate a capable son to hold the benefice and carry on the duty. If there was no capable son, the state put in a locum tenens but granted one-third to the wife to maintain herself and her children. The fief was otherwise inalienable; it could not be sold, pledged, exchanged, sublet, devised or diminished. Other land was leased from the state. Ancestral estate was strictly tied to the family. If a holder would sell, the family kept the right of redemption, and there seems to have been no time limit to its exercise.
Temple
The temple occupied a most important position. It received income from its estates, from titheTithe
A tithe is a one-tenth part of something, paid as a contribution to a religious organization or compulsory tax to government. Today, tithes are normally voluntary and paid in cash, cheques, or stocks, whereas historically tithes were required and paid in kind, such as agricultural products...
s and other fixed dues, as well as from the sacrifices (a customary share) and other offerings of the faithful—vast amounts of all sorts of naturalia, besides money and permanent gifts. The larger temples had many officials and servants.
Originally, perhaps, each town clustered round one temple, and each head of family had a right to minister there and share its receipts. As the city grew, the right to so many days a year at one shrine (or its gate) descended within certain families and became a kind of property that could be pledged, rented or shared within the family, but not alienated. Despite all these demands, the temples became great granaries and storehouses and were also the city archive
Archive
An archive is a collection of historical records, or the physical place they are located. Archives contain primary source documents that have accumulated over the course of an individual or organization's lifetime, and are kept to show the function of an organization...
s. The temple had its responsibilities. If a citizen was captured by the enemy and could not ransom
Ransom
Ransom is the practice of holding a prisoner or item to extort money or property to secure their release, or it can refer to the sum of money involved.In an early German law, a similar concept was called bad influence...
himself, the temple of his city must do so. To the temple came the poor farmer to borrow seed, grain, or supplies for harvesters, etc.—advances that he repaid without interest.
The king's power over the temple was not proprietary
Ownership
Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. The concept of ownership has...
, but administrative. He might borrow from it, but repaid like other borrowers. The tithe seems to have been considered the rent due to the god for his land. It is not clear that all lands paid tithe; perhaps only such as once had a special connection with the temple.
The Code deals with a class of persons devoted to the service of a god, as vestals
Vestal Virgin
In ancient Roman religion, the Vestals or Vestal Virgins , were priestesses of Vesta, goddess of the hearth. The College of the Vestals and its well-being was regarded as fundamental to the continuance and security of Rome, as embodied by their cultivation of the sacred fire that could not be...
or hierodule
Hierodule
In ancient Greece and Anatolia a hierodule, from the Greek ' , was a temple slave in the service of a specific deity, often with the connotation of religious prostitution. Her prostitution would technically be excused because of the service she provided to the deity...
s. The vestals were vowed to chastity
Chastity
Chastity refers to the sexual behavior of a man or woman acceptable to the moral standards and guidelines of a culture, civilization, or religion....
, lived together in a great nunnery, were forbidden to enter a tavern
Tavern
A tavern is a place of business where people gather to drink alcoholic beverages and be served food, and in some cases, where travelers receive lodging....
, and, together with other votaries, had many privileges.
Property law
The Code recognizes many ways of disposing of property: sale, leaseLease
A lease is a contractual arrangement calling for the lessee to pay the lessor for use of an asset. A rental agreement is a lease in which the asset is tangible property...
, barter
Barter
Barter is a method of exchange by which goods or services are directly exchanged for other goods or services without using a medium of exchange, such as money. It is usually bilateral, but may be multilateral, and usually exists parallel to monetary systems in most developed countries, though to a...
, gift, dedication, deposit, loan, or pledge
Pledge (law)
A pledge is a bailment or deposit of personal property to a creditor to secure repayment for some debt or engagement, The term is also used to denote the property which constitutes the security....
, all of which were matters of contract. Sale was the delivery of a purchase (in the case of real estate
Real estate
In general use, esp. North American, 'real estate' is taken to mean "Property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; an item of real property; buildings or...
, symbolized by a staff, a key, or deed of conveyance) in return for purchase money, receipts being given for both. Credit, if given, was treated as a debt, and secured as a loan by the seller to be repaid by the buyer, for which he gave a bond.
The Code only allows claims substantiated by documents or the oath of witnesses. A buyer had to be sure of the seller's title. If he bought (or received on deposit) from a minor
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
or a slave without power of attorney
Power of attorney
A power of attorney or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter...
, he would be executed as a thief. If the goods were stolen and the rightful owner reclaimed them, he had to prove his purchase by producing the seller and the deed of sale, or witnesses to it; otherwise, he would be adjudged a thief and die. If he proved his purchase, he had to give up the property but could pursue a remedy against the seller or, if the seller had died, could reclaim fivefold from his estate.
A man who bought a slave abroad might find that he had previously been stolen or captured from Babylonia; he would then have to restore him to his former owner without recompense. If he bought property belonging to a feudal holding, or to a ward in Chancery, he had to return it as well as forfeit what he paid for it. He could repudiate the purchase of a slave attacked by the bennu sickness within a month (later, a hundred days) and could hold a newly purchased female slave for three days "on approval". A defect of title, or an undisclosed liability
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
, would invalidate a sale at any time.
Leasing
Landowners frequently cultivated their land themselves, but could also employ a husbandmanHusbandman
A Husbandman in England in the medieval and early modern period was a free tenant farmer. The social status of a husbandman was below that of a yeoman....
, or rent it. The husbandman was bound to carry out proper cultivation, raise an average crop, and leave the field in good tilth
Tilth
Tilth can refer to two things:Tillage and a measure of the health of soil.Good tilth is a term referring to soil that has the proper structure and nutrients to grow healthy crops. Soil in good tilth is loamy, nutrient-rich soil that can also be said to be friable because optimal soil has a mixture...
. In case the crop failed, the Code fixed a statutory return. Land might be leased at a fixed rent, where the Code stipulates that accidental loss fell on the tenant. If leased on profit-sharing terms, the landlord and tenant shared the loss proportionally to their stipulated share of profit. If the tenant paid his rent and kept the land in good tilth, the landlord could not interfere nor forbid subletting.
Wasteland could be leased for reclamation, the tenant being rent-free for three years and paying a stipulated rent in the fourth year. If the tenant neglected to reclaim the land, the Code stipulated that he must hand it over in good tilth and set a statutory rent. Gardens or plantations were leased in the same ways and under the same conditions; but for date groves, four years' free tenure was allowed.
The metayer system was common, especially on temple lands. The landlord found land, labour, ox
Ox
An ox , also known as a bullock in Australia, New Zealand and India, is a bovine trained as a draft animal. Oxen are commonly castrated adult male cattle; castration makes the animals more tractable...
en for ploughing and working the watering machines, carting, threshing or other implements, grain seed, rations for the workmen and fodder
Fodder
Fodder or animal feed is any agricultural foodstuff used specifically to feed domesticated livestock such as cattle, goats, sheep, horses, chickens and pigs. Most animal feed is from plants but some is of animal origin...
for the cattle
Cattle
Cattle are the most common type of large domesticated ungulates. They are a prominent modern member of the subfamily Bovinae, are the most widespread species of the genus Bos, and are most commonly classified collectively as Bos primigenius...
. The tenant
Tenant farmer
A tenant farmer is one who resides on and farms land owned by a landlord. Tenant farming is an agricultural production system in which landowners contribute their land and often a measure of operating capital and management; while tenant farmers contribute their labor along with at times varying...
, or steward, usually had other land of his own. If he stole the seed, rations or fodder, the Code stipulated that his fingers be cut off. If he appropriated or sold the implements, or impoverished or sublet the cattle, he was heavily fined and in default of payment, might be condemned to be torn to pieces by the cattle on the field. Rent was determined by contract.
Irrigation
Irrigation
Irrigation may be defined as the science of artificial application of water to the land or soil. It is used to assist in the growing of agricultural crops, maintenance of landscapes, and revegetation of disturbed soils in dry areas and during periods of inadequate rainfall...
was essential for farming in this region. If the irrigator neglected to repair his dike or left his runnel open and caused a flood, he had to make good the damage done to his neighbours' crops or be sold with his family to pay the cost. The theft of a watering machine, water-bucket or other agricultural implement was heavily fined.
Houses were usually leased for the year, but also for longer terms, rent being paid in advance, half-yearly. The contract generally specified that the house be in good repair, and the tenant was bound to keep it so. The woodwork, including doors and door frames, was removable, and the tenant might bring and take away his own. The Code stipulated that if the landlord re-entered before the term was up, he must remit a fair proportion of the rent. Land could be leased for the purpose of building houses or other buildings on it, the tenant being rent-free for eight or ten years; after which the building came into the landlord's possession.
Hired labour
Despite the multitude of slaves, hired labour was often needed, especially at harvest. This was a matter of contract, and the employer, who usually paid in advance, might demand a collateralCollateral (finance)
In lending agreements, collateral is a borrower's pledge of specific property to a lender, to secure repayment of a loan.The collateral serves as protection for a lender against a borrower's default - that is, any borrower failing to pay the principal and interest under the terms of a loan obligation...
against fulfillment of the work. Cattle were hired for ploughing, working the watering machines, carting, threshing, etc. The Code fixed a statutory wage for sowers, ox-drivers, field-labourers, and hire for oxen, asses
Donkey
The donkey or ass, Equus africanus asinus, is a domesticated member of the Equidae or horse family. The wild ancestor of the donkey is the African Wild Ass, E...
, etc.
There were many herds and flocks. The flocks were committed to a shepherd, who gave receipt for them and took them out to pasture. The Code fixed his wage. He was responsible for all care, must restore ox for ox, sheep for sheep and must breed them satisfactorily. Any dishonest use of the flock had to be repaid tenfold, but loss due to disease or wild beasts fell upon the owner. The shepherd made good all loss due to his own neglect. If he let the flock feed on a field of crops, he had to pay damages fourfold; if he turned them into standing crops when they ought to have been folded, he paid twelvefold.
Debt
In commerce, payment in kind was still common, though contracts usually stipulated cash, naming the currency expected—that of Babylon, LarsaLarsa
Larsa was an important city of ancient Sumer, the center of the cult of the sun god Utu. It lies some 25 km southeast of Uruk in Iraq's Dhi Qar Governorate, near the east bank of the Shatt-en-Nil canal at the site of the modern settlement Tell as-Senkereh or Sankarah.-History:According to...
, Assyria
Assyria
Assyria was a Semitic Akkadian kingdom, extant as a nation state from the mid–23rd century BC to 608 BC centred on the Upper Tigris river, in northern Mesopotamia , that came to rule regional empires a number of times through history. It was named for its original capital, the ancient city of Assur...
, Carchemish
Carchemish
Carchemish or Kargamış was an important ancient city of the Mitanni, Hittite and Neo Assyrian Empires, now on the frontier between Turkey and Syria. It was the location of an important battle between the Babylonians and Egyptians, mentioned in the Bible...
, etc. The Code stipulated, however, that a debtor must be allowed to pay in produce according to a statutory scale. If a debtor had neither money nor crops, the creditor must not refuse goods.
Debt was secured on the debtor's own person. Distraint
Distraint
Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries...
on a debtor's grain was forbidden by the Code; not only must the creditor return it, but his illegal action forfeited his claim altogether. An unwarranted seizure for debt was fined, as was the distraint of a working ox.
If a debtor were seized for debt, he could nominate as mancipium, or hostage to work off the debt, his wife, child, or slave. The creditor could only hold a wife or child three years as mancipium. If the mancipium died a natural death while in the creditor's possession, no claim could lie against the latter; but if he was the cause of death by cruelty, he had to give son for son, or pay for a slave. He could sell a slave-hostage, but not a slave-girl who had borne her master children; she had to be redeemed by her owner.
The debtor could also pledge his property and in contracts, often pledged a field, house or crop. The Code stipulated, however, that the debtor must take the crop himself and pay the creditor from its yield. If the crop failed, payment was deferred, and no interest could be charged for that year. If the debtor did not cultivate the field himself, he had to pay for its cultivation, but if the field was already cultivated, he must harvest it himself and pay his debt from the crop. If the cultivator did not get a crop, this would not cancel his contract.
Pledges were often made where the intrinsic value of the article was equivalent to the amount of the debt; but antichretic pledge was more common, where the profit of the pledge was a set-off against the interest of the debt. The whole property of a debtor might be pledged as collateral for payment of a debt, without any of it passing through the hands of the creditor. Personal guarantees were often given in Babylon that the debtor would repay, or the guarantor become liable himself.
Trade
Trade was very extensive. A common procedure was for a merchant to entrust his goods or money to a traveling agent, who sought a market for his goods. The caravanCamel train
A camel train is a series of camels carrying goods or passengers in a group as part of a regular or semi-regular service between two points. Although they rarely travelled faster than the walking speed of a man, camels' ability to handle harsh conditions made camel trains a vital part of...
s travelled far beyond the limits of the empire.
The Code insisted that the agent should inventory and give a receipt for all that he received. No claim could be made for anything not so entered. Even if the agent made no profit, he was bound to return double what he had received; if he made poor profit, he had to make up the deficiency; but he was not responsible for loss by robbery or extortion
Extortion
Extortion is a criminal offence which occurs when a person unlawfully obtains either money, property or services from a person, entity, or institution, through coercion. Refraining from doing harm is sometimes euphemistically called protection. Extortion is commonly practiced by organized crime...
on his travels. On his return, the lending merchant must give him a receipt for what was handed over to him. Any false entry or claim on the agent's part was penalised threefold; on the lending merchant's part, sixfold. In normal cases, profits were divided according to contract, usually equally.
A considerable amount of forwarding (advancing wares to the agent up front) was done by the caravans. The carrier gave a receipt for the consignment, took all responsibility, and exacted a receipt upon delivery. If he defaulted, he paid fivefold. He was usually paid in advance. Deposit, especially warehousing of grain, was charged for at one-sixtieth. The warehouse man took all risks and paid double for all shortage, but no claim could be made unless he had given a properly witnessed receipt.
Water traffic on the Euphrates
Euphrates
The Euphrates is the longest and one of the most historically important rivers of Western Asia. Together with the Tigris, it is one of the two defining rivers of Mesopotamia...
and canal system was early on, quite considerable. Ships, whose tonnage was estimated by the amount of grain they could carry, were continually hired for the transport of all kinds of goods. The Code fixes the price for shipbuilding
Shipbuilding
Shipbuilding is the construction of ships and floating vessels. It normally takes place in a specialized facility known as a shipyard. Shipbuilders, also called shipwrights, follow a specialized occupation that traces its roots to before recorded history.Shipbuilding and ship repairs, both...
and insists on the builder's giving a year's guarantee of seaworthiness. It also fixes the rate of hire for ship and crew. The captain was responsible for the freight and the ship; he had to replace all loss. Even if he refloated the ship, he had to pay a fine of half its value for sinking it. In the case of collision, the boat under way was responsible for damages to the boat at anchor.
The Code also regulated the liquor traffic—fixing a fair price for beer and forbidding the connivance of the tavern keeper (a female) at disorderly conduct or treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
able assembly, under pain of death. She was required to take the offenders to the palace—implying an efficient and accessible police system.
Payment through a banker or by written draft against deposit was frequent. Bonds to pay were treated as negotiable. Interest was rarely charged on advances by the temple or wealthy landowners for pressing needs, but this may have been part of the metayer system. The borrowers may have been tenants. Interest was charged at very high rates for overdue loans of this kind. Merchants (and even temples in some cases) made ordinary business loans, charging from 20% to 30%.
Marriage
MarriageMarriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
retained the form of purchase, but was essentially a contract to be husband and wife together. The marriage of young people was usually arranged between their relatives—the groom's father providing the bride-price, which, with other gifts, the suitor ceremonially presented to the bride's father. This bride-price was usually then handed over by her father to the bride upon her marriage, and so returned into the bridegroom's possession, along with her dowry
Dowry
A dowry is the money, goods, or estate that a woman brings forth to the marriage. It contrasts with bride price, which is paid to the bride's parents, and dower, which is property settled on the bride herself by the groom at the time of marriage. The same culture may simultaneously practice both...
, which was her portion of the family's inheritance as a daughter.
The bride-price varied greatly, according to the status of the parties, but surpassed the price of a slave. The Code stipulated that if the father did not give the suitor his daughter after accepting the suitor's gifts, he must return the gifts. The bride-price had to be returned even if the father reneged on the marriage contract because of slander of the suitor on the part of the suitor's friend, and the Code stipulated that the slanderer should not marry the girl (and thus would not profit from his slander). Conversely, if a suitor changed his mind, he forfeited the presents.
The dowry might include real estate, but generally consisted of personal effects and household furniture. It remained the wife's for life, descending to her children, if any; otherwise returning to her family, when the husband could deduct the bride-price if it had not been given to her, or return it if it had.
The marriage ceremony included joining hands and the bridegroom uttering a formula of acceptance, such as, "I am the son of nobles, silver and gold shall fill thy lap, thou shalt be my wife, I will be thy husband. Like the fruit of a garden I will give thee offspring." The ceremony must be performed by a freeman.
The marriage contract—without which, the Code ruled that the woman was no wife—usually stated the consequences to which each party was liable for repudiating the other. These by no means necessarily agree with the Code. Many other conditions might also be inserted: such as that the wife should act as maidservant to her mother-in-law or to a first wife.
The married couple formed a single unit in terms of external responsibility, especially for debt. The man was responsible for debts contracted by his wife, even before her marriage, as well as for his own; but he could use her as a mancipium. Hence the Code allowed a proviso to be inserted in the marriage contract, that the wife should not be seized for her husband's pre-nuptial debts; but stipulated that then he was not responsible for her pre-nuptial debts, and, in any case, that both together were responsible for all debts contracted after marriage. A man might make his wife a settlement by deed of gift, which gave her a life interest in part of his property, and he might reserve to her the right to bequeath it to a favorite child; but she could in no case leave it to her family. Although married, she always remained a member of her father's house—she is rarely named wife of A, but usually daughter of B, or mother of C.
Divorce
DivorceDivorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
was the husband's option, but he had to restore the dowry, and if the wife had borne him children, she had custody of them. He then had to assign her the income from property, as well as goods to maintain herself and their children until they grew up. She shared equally with their children in the allowance (and apparently in his estate at his death) and was free to marry again. If she had no children, he returned her dowry to her and paid her a sum equivalent to the bride-price, or a mina
Mina (unit)
The mina is an ancient Near Eastern unit of weight equivalent to 60 shekels. The mina, like the shekel, was also a unit of currency; in ancient Greece it was equal to 100 drachmae. In the first century AD, it amounted to about a fourth of the wages earned annually by an agricultural worker...
of silver if there had been none. The latter is the forfeit usually named in the contract for his repudiation
Repudiation
Repudiation may refer to:* Repudiation, the formal act by which a husband forcibly renounces his wife in certain cultures and religions*Disownment, the formal act by which a parent forcibly renounces his child...
of her.
If the husband could show that his wife had been a bad wife, the Code allowed him to send her away, while he kept the children as well as her dowry; or he could degrade her to the position of a slave in his own house, where she would have food and clothing. The wife might bring an action against her husband for cruelty and neglect and, if she proved her case, obtain a judicial separation, taking her dowry with her. No other punishment fell on the man. If she did not prove her case, but was proved to be a bad wife, she was drowned.
If the wife was left without maintenance during an involuntary absence of her husband (called to war, etc.), she could cohabit with another man, but must return to her husband when he came back, the children of the second union remaining with their own father. If she had maintenance, a breach of the marriage tie was adultery. Willful desertion by, or exile of, the husband dissolved the marriage without penalty to the wife. If he returned, she was not required or even permitted to return to him.
Widowhood
A widow took her husband's place in the family—living in his house and bringing up the children. She could only remarry with judicial consent, where the judge inventoried the deceased's estate and handed it over to her and her new husband in trust for the children. They could not alienate a single utensil.If she did not remarry, she lived on in her husband's house and, when the children had grown up, took a child's share in the division of his estate. She retained her dowry and any settlement deeded to her by her husband. This property would come down to her children on her death. If she had remarried, all her children would share equally in her dowry, but the first husband's estate fell only to his children, or to her selection among them, if so empowered.
Childbearing
MonogamyMonogamy
Monogamy /Gr. μονός+γάμος - one+marriage/ a form of marriage in which an individual has only one spouse at any one time. In current usage monogamy often refers to having one sexual partner irrespective of marriage or reproduction...
was the rule, and a childless wife might give her husband a maid to bear him children, who were then reckoned hers. She remained mistress of her maid, and might degrade her to slavery again for insolence, but could not sell her if she had borne her husband children. If the wife did this, the Code did not allow the husband to take a concubine; but if she did not, he could do so. The concubine was a co-wife, though not of the same rank; the first wife had no power over her. A concubine was a free woman, often dowered for marriage, and her children were legitimate and lawful heirs. She could only be divorced on the same conditions as a wife.
If a wife became a chronic invalid, the husband was bound to maintain her in the home they had made together, unless she preferred to take her dowry and return to her father's house; but he was free to remarry. Again, the children of the new wife were legitimate and lawful heirs.
There was no hindrance to a man having children by a slave girl. These children were free, and their mother then could not be sold, though she might be pledged, and she became free upon her master's death. Her children could be legitimized by their father's acknowledgment before witnesses and were often adopted. They then ranked equally in sharing their father's estate; but if not adopted, the wife's children divided and took first choice.
Temple priests
Priest
A priest is a person authorized to perform the sacred rites of a religion, especially as a mediatory agent between humans and deities. They also have the authority or power to administer religious rites; in particular, rites of sacrifice to, and propitiation of, a deity or deities...
were not supposed to have children, yet they could marry and often did. The Code contemplated that such a wife would give a husband a maid, as above.
Free women might marry slaves and still be dowered for the marriage. The children were free, and at the slave's death, the wife took her dowry and half of what she and her husband had acquired in wedlock for self and children; the master taking the other half, as his slave's heir.
A father had control over his children until their marriage. He had a right to their labor in return for their keep. He might hire them out and receive their wages, pledge them for debt, or even sell them outright. Mothers had the same rights in the absence of the father; elder brothers, when both parents were dead. A father had no claim on his married children for support, but they retained the right to inherit on his death.
The daughter was not only in her father's power to be given in marriage, but he might dedicate her to the service of a god as a vestal or a hierodule or give her as a concubine. She had no choice in these matters, often decided in her childhood. An adult daughter might wish to become a votary, perhaps in preference to an uncongenial marriage, and it seems that her father could not refuse her wish.
In all these cases, the father might dower her. If he did not, on his death the brothers were obligated to do so, giving her a full child's share if a wife, a concubine or a vestal, but one-third of a child's share if she were a hierodule or a Marduk
Marduk
Marduk was the Babylonian name of a late-generation god from ancient Mesopotamia and patron deity of the city of Babylon, who, when Babylon became the political center of the Euphrates valley in the time of Hammurabi , started to...
priestess. The latter had the privilege of exemption from state dues and absolute disposal of her property. All other daughters had only a life interest in their dowry, which reverted to their family if childless or went to their children if they had any. A father might, however, execute a deed granting a daughter power to leave her property to a favorite brother or sister.
A daughter's estate was usually managed for her by her brothers, but if they dissatisfied her, she could appoint a steward. If she married, her husband then managed it. Sons also appear to have received their share on marriage, but then did not always leave their father's house; they might bring their wives there. This was usual in child marriage
Child marriage
Child marriage and child betrothal customs occur in various times and places, whereby children are given in matrimony - before marriageable age as defined by the commentator and often before puberty. Today such customs are fairly widespread in parts of Africa, Asia, Oceania and South America: in...
s.
Adoption
AdoptionAdoption
Adoption is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents...
was very common, especially when the father (or mother) was childless or had seen all his children grow up and marry away. The child was then adopted to care for the parents' old age. This was done by contract, which usually specified what the parent had to leave and what maintenance was expected. The natural children, if any, were usually consenting parties to an arrangement that cut off their expectations. In some cases they even acquired the estate for the adopted child who was to relieve them of care. If the adopted child failed to carry out the filial duty, the contract was annulled in the law courts. Slaves were often adopted, and if they proved unfilial, were reduced to slavery again.
A craftsman often adopted a son to learn the craft. He profited by the son's labour. If he failed to teach his son the craft, that son could prosecute him and get the contract annulled. This was a form of apprenticeship
Apprenticeship
Apprenticeship is a system of training a new generation of practitioners of a skill. Apprentices or protégés build their careers from apprenticeships...
, and it is not clear whether the apprentice had any filial relation.
A man who had adopted a child, and afterwards married and had a family of his own, could dissolve the contract and must give the adopted child one-third of a child's share in goods, but no real estate. Property could only descend through his legitimate family. Vestals frequently adopted daughters, usually other vestals, to care for them in their old age.
Adoption had to be with consent of the natural parents, who usually executed a deed making over the child, who thus ceased to have any claim upon them. But vestals, hierodules, certain palace officials and slaves had no rights over their children and could raise no objection. Orphans and illegitimate children had no parents to object. Ingratitude by adopted children was severely frowned on by the law: if the adopted child of a prostitute abandoned his foster parents and returned to his biological father's house, his eye was torn out. If an adopted child rejected his foster parents, claiming they were not his mother and father, his tongue was torn out. An adopted child was a full heir; the contract might even assign him the position of eldest son. Usually, he was residuary legatee.
Heirs
All legitimate children shared equally in the father's estate on his death, reservation being made of a bride-price for an unmarried son, dower for a daughter, or property deeded to favourite children by the father. There was no birthright attaching to the position of eldest son, but he usually acted as executorExecutor
An executor, in the broadest sense, is one who carries something out .-Overview:...
and, after considering what each had already received, equalized the shares. He even made grants in excess to the others from his own share. If there were two widows with legitimate issue, both families shared equally in the father's estate, until later times, when the first family took two-thirds. Daughters, in the absence of sons, had sons' rights. Children also shared their own mother's property, but had no share in that of a stepmother.
A father could disinherit a son in early times without restriction, but the Code insisted upon judicial consent, and that only for repeated unfilial conduct. In early times, the son who denied his father had his front hair shorn and a slave-mark put on him and could be sold as a slave; while the son who denied his mother had his front hair shorn, was driven round the city as an example and expelled from his home, but not degraded to slavery.
Adultery
AdulteryAdultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...
was punished with the death of both parties by drowning; but if the husband was willing to pardon his wife, the king might intervene to pardon the paramour. For incest
Incest
Incest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...
between mother and son, both were burned to death
Execution by burning
Death by burning is death brought about by combustion. As a form of capital punishment, burning has a long history as a method in crimes such as treason, heresy, and witchcraft....
; with a stepmother, the man was disinherited; with a daughter, the man was exiled; with a daughter-in-law, he was drowned; with a son's fiancée, he was fined. A wife who for her lover's sake procured her husband's death was gibbet
Gibbet
A gibbet is a gallows-type structure from which the dead bodies of executed criminals were hung on public display to deter other existing or potential criminals. In earlier times, up to the late 17th century, live gibbeting also took place, in which the criminal was placed alive in a metal cage...
ed. A betrothed girl seduced by her prospective father-in-law took her dowry and returned to her family and was free to marry as she chose.
Punishment
In the criminal codeCriminal Code
A criminal code is a document which compiles all, or a significant amount of, a particular jurisdiction's criminal law...
, the ruling principle was the lex talionis. Eye for eye, tooth for tooth, limb for limb was the penalty for assault upon an amelu. A sort of symbolic retaliation was the punishment for the offender, seen in cutting off the hand that struck a father or stole a trust; in cutting off the breast of a wet nurse
Wet nurse
A wet nurse is a woman who is used to breast feed and care for another's child. Wet nurses are used when the mother is unable or chooses not to nurse the child herself. Wet-nursed children may be known as "milk-siblings", and in some cultures the families are linked by a special relationship of...
who switched the child entrusted to her for another; in the loss of the tongue that denied father or mother (in Elam
Elam
Elam was an ancient civilization located in what is now southwest Iran. Elam was centered in the far west and the southwest of modern-day Iran, stretching from the lowlands of Khuzestan and Ilam Province, as well as a small part of southern Iraq...
ite contracts, the same penalty was inflicted for perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
); in the loss of the eye that pried into forbidden secrets. The loss of the surgeon's hand that caused loss of life or limb, or the brander's hand that obliterated a slave's identification mark, are very similar. The slave who struck a freeman or denied his master lost an ear, the organ of hearing and symbol of obedience. A person who brought another into danger of death by false accusation was punished by death. A perjurer was punished by the same penalty the perjurer sought to bring upon another.
The death penalty was freely rendered for theft and other crimes in this section of the Code: for theft involving entering a palace or temple treasury, for illegal purchase from a minor or slave, for selling stolen goods or receiving the same, for common theft in the open (in lieu of multiple-fold restoration) or receiving the same, for false claim to goods, for kidnapping
Kidnapping
In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
, for assisting or harbouring fugitive
Fugitive
A fugitive is a person who is fleeing from custody, whether it be from private slavery, a government arrest, government or non-government questioning, vigilante violence, or outraged private individuals...
slaves, for detaining or appropriating the same, for brigandage
Brigandage
Brigandage refers to the life and practice of brigands: highway robbery and plunder, and a brigand is a person who usually lives in a gang and lives by pillage and robbery....
, for fraudulent sale of drink, for not reporting criminal conspiracy in one's tavern, for delegation of personal service and refusing to pay the delegate or not sending the delegate, for misappropriating the levy, for harming or robbing one of the king's captains, for causing the death of a house owner through bad construction. The manner of death is not specified for these cases.
This death penalty was also set for conduct that placed another in danger of death. The form of death penalty was specified for the following cases: gibbeting: for burglary
Burglary
Burglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
(on the spot where crime was committed), later also for encroaching on the king's highway, for getting a slave-brand obliterated, for procuring a husband's death; burning: for incest with own mother, for a vestal entering or opening a tavern, for looting a house on fire (thrown into the fire); drowning: for adultery, rape of a betrothed maiden, bigamy, bad conduct as a wife, seduction of a daughter-in-law.
A curious extension of the lex talionis is the death of a creditor's son for his father's having caused the death of a debtor's son as mancipium; of a builder's son for his father's causing the death of a house owner's son by bad construction; the death of a man's daughter because her father caused the death of another man's daughter.
Contracts naturally do not usually touch on criminal matters as the above, but marriage contracts do specify death by strangling, drowning, precipitation from a tower or pinnacle of the temple, or by the iron sword, for a wife's repudiation of her husband. We are quite without evidence as to the executioner in all these cases.
Exile
Exile
Exile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened with imprisonment or death upon return...
was inflicted for incest with a daughter; disinheritance for incest with a stepmother, or for repeated unfilial conduct. Sixty strokes of an ox-hide scourge
Scourge
A scourge is a whip or lash, especially a multi-thong type used to inflict severe corporal punishment or self-mortification on the back.-Description:...
were awarded for a brutal assault on a superior, both being amelu. Branding (perhaps the equivalent of degradation to slavery) was the penalty for slander of a married woman or vestal. Permanent deprivation of office fell upon the corrupt judge. Enslavement befell the extravagant wife and unfilial children. Imprisonment was common, but is not mentioned in the Code.
The commonest of all penalties was a fine. This is awarded by the Code for corporal injuries to a mushkenu or to a slave (paid to his master), for damages done to property, or for breach of contract. The restoration of goods appropriated, illegally bought, or damaged by neglect, was usually accompanied by a fine, giving it the form of multiple restoration. This might be double, treble, fourfold, fivefold, sixfold, tenfold, twelvefold, or even thirtyfold, according to the enormity of the offence.
The Code recognized the importance of intent. A man who killed another in a quarrel must swear he did not do so intentionally and was then only fined according to the rank of the deceased. The Code does not say what would be the penalty of murder, but death is so often awarded where death is caused, that we can hardly doubt that the murderer was put to death. If the assault only led to injury and was unintentional, the assailant in a quarrel had to pay the doctor's fees. A brander, induced to remove a slave's identification mark, could swear to his ignorance and was free. The owner of an ox that gored a man on the street was only responsible for damages if the ox was known by him to be vicious—even if it caused death. If the mancipium died a natural death under the creditor's hand, the creditor was free. In ordinary cases, a person was not responsible for accident or if they excersized more than proper care. Poverty excused bigamy on the part of a deserted wife.
On the other hand, carelessness and neglect were severely punished, as in the case of the unskillful physician, if it led to loss of life or limb, his hands were cut off; a slave had to be replaced, the loss of his eye paid for by half his value; a veterinary surgeon who caused the death of an ox or donkey paid quarter value; a builder whose careless workmanship caused death lost his life or paid for it by the death of his child, replaced slave or goods and in any case, had to rebuild the house or make good any damages due to defective building and repair the defect as well. The boat builder had to make good any defect of construction or damage due to it for a year's warranty
Warranty
In business and legal transactions, a warranty is an assurance by one party to the other party that specific facts or conditions are true or will happen; the other party is permitted to rely on that assurance and seek some type of remedy if it is not true or followed.In real estate transactions, a...
.
Throughout the Code, respect is paid to evidence. Suspicion was not enough. The criminal must be taken in the act, e.g. the adulterer, etc. A man could not be convicted of theft unless the goods were found in his possession.
In the case of a lawsuit, the plaintiff proferred his own plea. There is no trace of professional advocates, but the plea had to be in writing, and the notary doubtlessly assisted in the drafting of it. The judge saw the plea, called the other parties before him, and sent for the witnesses. If these were not at hand, he might adjourn the case for their subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
, specifying a time for up to six months. Pledges might be made to produce the witnesses on a fixed day.
The more important cases, especially those involving life and death, were tried by a bench of judges. With the judges were associated a body of elders who shared in the decision, but whose exact function is not yet clear. Agreements, declarations and non-contentious cases were usually witnessed by one judge and twelve elders.
Parties and witnesses were put on oath. The penalty for false witness was usually the punishment that would have been awarded the victim if convicted. In matters beyond human knowledge, such as the guilt or innocence of an alleged practitioner of magic or a suspected wife, the ordeal by water was used. The accused jumped into the sacred river, and the innocent swam while the guilty drowned. The accused could clear himself by taking an oath if the only knowledge available was his own. The plaintiff could swear to his loss by brigands, the price paid for a slave purchased abroad, or the sum due to him; but great stress was laid on the production of written evidence. It was a serious thing to lose a document. The judges might be satisfied of its existence and terms by the affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
of the witnesses to it and then issue an order that whenever found, it should be submitted. The clay tablets of contracts that were annulled were broken. The court might even travel to view the property and take with them the sacred symbols with which oaths were made.
Court decisions were set in writing, sealed and witnessed by the judges, the elders, witnesses, and a scribe. Women might act in all these capacities. The parties swore an oath, included in the document, to observe its stipulations. Each party received a copy, and one was kept by the scribe to be stored in the archives.
Appeal to the king was allowed and is well attested. The judges at Babylon seem to have formed a superior court to those of provincial towns, but a defendant might elect to answer the charge before the local court and refuse to plead at Babylon.
Finally, it may be noted that many immoral acts, such as the use of false weights, lying, etc., that could not be brought into court are severely denounced in the Omen Tablets as likely to bring the offender into "the hand of God" as opposed to "the hand of the king".
See also
- Assyrian lawAssyrian lawAssyrian law was very similar to Sumerian and Babylonian law, however, notably more brutal than its predecessors. The first copy of the code to come to light, dated to the reign of Tiglath-Pileser I, was discovered in the course of excavations by the German Oriental Society . Three Assyrian law...
- Hebraic lawHebraic lawThe term Hebraic law refers to a set of ancient Hebrew Law as found in the Torah of the Hebrew Bible also known as Mosaic Law. The Hebraic law has a great similarity to the law as proclaimed by ancient monarchs of the Middle East, including Hammurabi of the 18th–17th century BC and his famous law...
- Cuneiform lawCuneiform LawCuneiform law refers to any of the legal codes written in cuneiform script, that were developed and used throughout the ancient Middle East among the Sumerians, Babylonians, Assyrians, Elamites, Hurrians, Kassites, and Hittites...
- List of ancient legal codes