Babylonian and Assyrian Laws, Contracts and Letters Part 9

-- 272. If a man has hired the wagon alone, he shall pay forty _?A_ of corn daily.

(M202) -- 273. If a man has hired a laborer from the beginning of the year to the fifth month, he shall pay six _E_ of silver daily; from the sixth month to the close of the year, he shall pay five _E_ of silver daily.

(M203) -- 274. If a man has hired an artisan, he shall pay as his daily wages, to a ... five _E_ of silver, to a potter five _E_ of silver, to a tailor five _E_ of silver, to a stone-cutter ... _E_ of silver, to a ...

_E_ of silver, to a ... _E_ of silver, to a carpenter four _E_ of silver, to a rope-maker four _E_ of silver, to a ... _E_ of silver, to a builder ... _E_ of silver.

(M204) -- 275. If a man has hired a boat, its hire is three _E_ of silver daily.

-- 276. If he has hired a fast boat he shall pay two and a half _E_ daily.

-- 277. If a man has hired a s.h.i.+p of sixty _GUR_ he shall pay one-sixth of a shekel of silver daily for its hire.

(M205) -- 278. If a man has bought a male or female slave and the slave has not fulfilled his month, but the bennu disease has fallen upon him, he shall return the slave to the seller and the buyer shall take back the money he paid.

-- 279. If a man has bought a male or female slave and a claim has been raised, the seller shall answer the claim.

(M206) -- 280. If a man, in a foreign land, has bought a male, or female, slave of another, and if when he has come home the owner of the male or female slave has recognized his slave, and if the slave be a native of the land, he shall grant him his liberty without money.

(M207) -- 281. If the slave was a native of another country, the buyer shall declare on oath the amount of money he paid, and the owner of the slave shall repay the merchant what he paid and keep his slave.

(M208) -- 282. If a slave has said to his master, "You are not my master,"

he shall be brought to account as his slave, and his master shall cut off his ear.

(M209) This is not the place to write a commentary on the Code, but there are a few necessary cautions. One of the first is that most clauses are permissive rather than positive. The verb "shall" is not an imperative, but a future. Doubtless in case of heinous crimes the death-penalty had to be inflicted. But there was always a trial, and proof was demanded on oath. In many cases the "shall" is only permissive, as when the Code says a widow "shall" marry again. There is no proof that the jury decided only facts and found the prisoner guilty or not, leaving the judge no option but to inflict the extreme penalty. The judge, on the contrary, seems to have had much legislative power. When this view is taken, the Code appears no more severe than those of the Middle Ages, or even of recent times, when a man was hanged for sheep-stealing. There are many humanitarian clauses and much protection is given the weak and the helpless. One of the best proofs of its inherent excellence is that it helped to build up an empire, which lasted many centuries and was regarded with reverence almost to the end.

III. Later Babylonian Law

(M210) Very little is yet known regarding later Babylonian law. Dr. F. E.

Peiser published in the _Sitzungsberichte der Konigliche Akademie der Wissenschaften zu Berlin_ (1889, pp. 823 ff.) a very interesting fragmentarily preserved text (82-7-14, 988, in the British Museum), which contains either a collection of abstracts of cases which have been decided, or precedents, or else an extract from some code later than that of ?ammurabi. Dr. Peiser thought that the date was the second year of Ashurbanipal, king of Babylon. This seems rather unlikely, but may, of course, be true.

In his inaugural dissertation, Dr. Peiser, under the t.i.tle of _Jurisprudentiae Babylonicae quae supersunt_, commented upon and ill.u.s.trated the above text by numerous examples of cases, actually occurring during the period of the second empire. But the whole collection of fragments of law with which he had to deal was too small to do more than show what may be hoped for as the result of future discoveries.

As specimens of these laws we may take the following:

(M211)

Law A. [Col. II. 4-14.]

The man who has sealed a tablet, by the name of another, in favor of an owner of a field, or has sealed a bond, and has not caused to be executed a deed giving him power of attorney, or has not taken a duplicate of such a tablet [cannot take possession]; the man, in whose name the tablet, or bond, is written, shall take that field, or house.

If a man acted as buyer, or lender, for another, he incurred liabilities, for which he could not indemnify himself, unless he had secured from his princ.i.p.al a deed empowering him so to act. But, if without such power of attorney, A had acted for B, and bought a house, or field, of C, and had the conveyance made out to B, of course paying C; or had lent money to C, in the name of B; and the transaction had been completed, by sealing the deed of sale or bond; then B was the owner of the field, or house, or the creditor for the loan. A could not plead that he was the real owner, even if he had not been able to recover the purchase-money or loan from B, in whose name he had made it. B, whose name appeared in the deed or in the bond, was the rightful owner.

(M212)

Law B. [Col. II. 15-23.]

The man, who has sold a female slave and has had an objection made concerning her, shall take her back. The seller shall give to the buyer the price named in the deed of sale, to its exact amount, and shall pay half a shekel of silver for each of the children born to her.

How long after sale objection could be raised is not stated. In early times a month was allowed for fever to develop; in a.s.syrian contracts a hundred days were allowed for fever or seizure. But a _sartu_, or "vice,"

could be pleaded, at any time, as ground for returning the slave. Here it is clear that time was allowed for a slave to bear one or more children, before the repudiation lost effect. It is noteworthy that the seller had to buy back such children. The maid may have been bought to bear her master children, and if these were not sound, the master had ground for complaint and could not be held responsible for them. Also it was objectionable to separate mother and children. The price named is trifling. Compare -- 278 of the Code, where, however, no mention is made of the children of a maid.

The next law is unintelligible at present, owing to the _lacunae_, and doubtful readings of the text, which, moreover, is only given in transcription. It appears to concern a woman and her interests in a field or plantation and the trees in it, and its produce.

(M213)

Law C. [Col. III. 3-15.]

A man has given his daughter to a freeborn man and the father has fixed something in a deed and given to his son, and the first-named has fixed a marriage-portion for his daughter and they have mutually executed deeds of settlement. They shall not alter their deeds. The father shall give in full the settlement (_nu?urru_), which he had promised his son by deed, to the father-in-law, and deliver it.

The father here named appears to be the father of the bridegroom. He must make a settlement on his son, as well as the father of the bride on his daughter. The point of the law seems to be that these settlements on the part of the parents to the young couple are irrevocable. No subsequent engagements entered into can affect them. This settlement by the bridegroom's father on his son, which he has to pay over to the bride's father, evidently takes the place of the _ter?atu_, or "bride-price" of the Code. The obligation of a father to find his son the means for a bride-price appears in the Code, -- 166; but there is no section which answers directly to this law. The marriage-portion is now _nudunnu_, in the Code it was _eriktu_, while _nudunnu_ was the husband's gift to the wife.

(M214)

Law D. [Col. III. 16-22.]

When the father [of the bridegroom] has had his wife taken away by fate, has taken to himself a second wife, and she has borne him sons, the sons of the second wife shall take a third of his property remaining.

This appears as part of the same section as Law C, and is enacted again in Law K, page 69. It is not easy to see why it is here, except to make plain that settlements on marriages of the sons of the first family are a first charge on the father's property. The second family takes a third, not of all the father once had, but of what is left after these gifts by deed have been taken out. The married sons of the first family are not disinherited by virtue of these gifts, but take among them two-thirds of what is left. This is against the Code, -- 167.

(M215)

Law E. [Col. III. 23-31.]

A man who has promised a marriage-portion to his daughter, or has written her a deed of gift, and afterward his means have diminished, shall give to his daughter a marriage-portion according to his means that are left. Father-in-law and son-in-law shall not quarrel one with the other.

Dr. Peiser has shown that the marriage-portion was often held back a long time. Suits were brought to recover it from fathers-in-law. There is no corresponding section in the Code.

(M216)

Law F. [Col. III. 32-37.]

A man has given a marriage-portion to his daughter and she has neither son nor daughter and fate has carried her off; her marriage-portion returns to her father's house.