Part 10 (1/2)
Exactly as in the Code, -- 163.
The first seven lines of Col. IV. are too fragmentary to give a connected sense, but are still concerned with the marriage-portion.
(M217)
Law G. [Col. IV. 8-24.]
A wife, whose marriage-portion her husband has received, who has no son or daughter, and fate has carried off her husband, shall be given from her husband's property the marriage-portion, whatever that was. If her husband has made her a gift, she shall receive the gift of her husband with her marriage-portion and take it away. If she had no marriage-portion, the judge shall estimate the property of her husband and, according to her husband's means, shall grant her something.
It is noteworthy that in the above laws the old usage is reversed. Now the _nudunnu_ is the marriage-portion, given with the bride, and the _eriktu_ is the husband's a.s.signment to the wife. With this alteration the law agrees with the Code, -- 171. But there she has a family.
(M218)
Law H. [Col. IV. 25-45.]
A man has married a wife and she has borne him children; after that man has been carried off by fate, and that woman has set her face to enter the house of another, she shall take the marriage-portion which she brought from her father's house, and whatever her husband presented her as a gift, and shall marry the husband of her choice. As long as she lives, she shall enjoy food and drink from them. If there be children of this husband, they and the children of the former husband shall share her marriage-portion. The sisters....
This is practically the same as Code, -- 170, but it is differently arranged and the phrases differ markedly. Note that the sisters were separately treated.
(M219)
Law K. [Col. V. 33-46.]
A man has married a wife and she has borne him children, and fate has carried off his wife; he has married a second wife and she has borne him children; after the father has gone to his fate, the children of the former wife shall take two-thirds of the goods of their father's house, the children of the second wife shall take one-third. Their sisters who are dwelling in their father's house....
This must be contrasted with -- 167 of the Code. There all sons share equally. Here the first family take two-thirds. The sisters were also treated separately. It is clear that we have to do with a code which preserves many features of the early times, but has many new features of its own. It is greatly to be desired that further portions should be published.
IV. The Social Organization Of The Ancient Babylonian State
(M220) The State appears in the light of the ?ammurabi Code to have been composed of three great cla.s.ses, the _amelu_, the _mukenu_, and the _ardu_. To the first cla.s.s belonged the king and the chief officers of state, and also the landed proprietors. Their liabilities for fines and punishments were higher. Also in their case the old law of ”eye for eye, tooth for tooth” still held; while others came under a scale of compensations and damages. This may point to a racial difference. The ancient laws of Arabia may have been carried with them by ?ammurabi's tribal followers, while the older subject-residents accepted the more commercial system of fines. The old pride of the Arab tribesman may have forbidden his taking money as payment for his damaged eye, or tooth. But the _mukenu_ was more ”humble,” as his name denotes, and may well have formed the bulk of the subject-population. He was a free man, not a beggar. He was not without considerable means, as we see from the sections referring to theft from him. He had slaves,(62) and seems to have been liable to conscription. His fees to a doctor or surgeon were less than those paid by an _amelu_. He paid less to his wife for a divorce,(63) and could a.s.sault another poor man more cheaply than could an _amelu_. There can be no doubt that the _amelu_ was the ”gentleman” or ”n.o.bleman,” and the _mukenu_ a common man, or poor man. But the exact force of the terms is uncertain.
In process of time _amelu_ came to be used, like our ”sir,” and even ”esquire,” of those who had no special qualifications for the t.i.tle. Like the ”gentleman's gentleman” of the servant's hall, he was only a respectable person. So, even in the Code, _amelu_ usually means no more than ”man.” It already appears as a mere determinative of personality in the t.i.tles of laborers and artisans,(64) when it cannot stamp them as landed proprietors. But it may mark them as members of the guilds of craftsmen and recall the respect due to such. If, however, we press this, we must admit a guild of day laborers.
There is no suggestion of any legal disability on the part of a _mukenu_; he is merely a person of less consideration. Whether or not his ranks were recruited from the children of slaves by free parents is not clear, but it is very probable that they were.
The slave was at his master's command and, like a child in his father's house, to some extent a chattel. He could be pledged for debt, as could a wife or child. He was subject to the levy,(65) and his lot was so far unpleasant that we hear much of runaway slaves. It was penal to harbor a slave, or to keep one caught as a fugitive.(66) Any injury done to him was paid for, and his master received the damages.(67) But he was free to marry a free woman and the children were free. So a slave-girl was free on her master's death, if she had borne him children; and the children were also free. He was subject to mutilation for a.s.saulting a free man, or repudiating his master.(68) But his master had to pay for his cure, if sick.(69) He was not free to contract, except by deed and bond.(70) Yet he and his free wife could acquire property, half of which would fall to his wife and children on his death.
(M221) The Code reveals the existence of a cla.s.s of men, who were indeed known from the letters of ?ammurabi and the contemporary contracts, but whose functions are not easy to fix. They were the _rid ?abi_ and the _ba'iru_. By their etymology these t.i.tles seemed to mean ”slave-driver,”
and ”catcher.” But the Code sets them in a clearer light. They were closely connected, if not identical, officials. They had charge of the levy, the local quota for the army, or for public works. Hence ”levy-master” and ”warrant-officer” are suggestive renderings. For the former official, ”taskmaster,” the one over the gang of forced laborers and reminiscent of the old time press-gang officers, is a fair translation. ”Field cornet” would perhaps suit the military side. For some aspects of their office the ancient ”reeve” may be compared. Whether the ”catcher” actually was a local policeman, whose chief duty was to apprehend criminals and reluctant conscripts, is not yet clear. The same name is used of ”fishermen,” who were ”catchers” in another sense, and of hunters. A really satisfactory rendering is impossible, as we have now no officials whose duties actually correspond to theirs.
(M222) Each of these officials held what may be called a benefice, or perhaps a feoff. It consisted of land, house, and garden, certain sheep and cattle as stock, and a salary. It was directly ascribed to the king as benefactor. We may compare the Norman lords settled in England by the Conqueror, or the Roman soldier-colonists. The men may well have been the followers of the first founder of the dynasty. In a very similar way the Chaldean conqueror, Merodach-baladan II., long after, settled his Chaldean troops in Babylonia. We may regard these men as retainers of the king, and probably as originally foreigners. The benefice was held by them for personal service. They were to go ”on the king's errand” when ordered. It was a penal offence to send a subst.i.tute.(71) The errand might take them away from home and detain them a very long time. In such enforced absence the official might delegate his son to take his place and carry on his duty.(72) This implies that there was a local duty besides the personal service. Further, this needed a grown man to discharge it.(73) The _loc.u.m tenens_ enjoyed the benefice,(74) with a reserve of one-third for the wife to bring up the children of the absent official. An official by neglecting the care of his benefice ran the risk of forfeiture.(75) This came about by his absence giving the _loc.u.m tenens_ opportunity to acquire a prescriptive right, which he might do in three years, if he showed himself a more worthy holder. But this was only if the absentee had been neglectful, and a one-year tenancy conferred no such right.(76)
(M223) The service on which the official might be engaged was evidently military and had risks. It is not certain whether the _dannatu_(77) is really a ”fortress,” or a ”defeat.” The word has both meanings. It does not really matter. Either way the official is captured by the enemy of the king. He was bound to pay for his own ransom, if he had the means; or if not, his town must ransom him and, failing that, the state. But he could not raise money on his benefice. Moreover, while it could descend to his son, it was inalienable. No diminution by bequest to his female relatives, no sale of part of it, no mortgage on it, nor even its exchange for other like estate, was allowed.
Further, the official and his benefice were protected. He could not be hired out by his superior officers, nor in any way plundered or oppressed.