Part I

WE are fortunate in possessing the code of laws according to which Babylonia was governed in the second millennium before this era. This code, the oldest compilation of laws in the world, inscribed on an obelisk of black diorite standing about eight feet high, was found in 1901 in the course of excavations conducted under the leadership of M. J. de Morgan on the site of the ancient city of Susa. The monument, dating from the reign of Hammurapi (c. 2123-2081 B.C.), was originally set up in the temple of Marduk at Babylon, known as E-sagila ("the lofty house") whence it was carried as a trophy of war by an Elamitic conqueror in the twelfth century B.C.

A striking feature of this code, written in Babylonian, is its comprehensive character, covering as it does almost all phases of public and social life in Babylonia. No less significant is the circumstance that the code reverts to an older Sumerian original of which some fragments have been found, ^[1] so that Hammurapi 's share in this great compilation appears to have been limited to preparing a translation of the older and later laws of the country into the Semitic speech and to publish the Code officially as the laws of the country for all times. ^[2]

There are indications in the code itself of its being a mixture of older with later elements. It opens, in fact, with two statutes which show the ordeal as a test of guilt still in force; it assumes in certain instances the lex talionis as the basis of punishment, but by the side of such primitive views and procedures, it contains many statutes revealing an advanced stage of society with highly developed ethical principles and elaborate means of establishing the guilt of the one accused of a crime or misdemeanor, with correspondingly nice distinctions in the endeavor to bring about a coordination between guilt and punishment, and accompanied also by efforts to curb parental and marital authority.

The reason for the retention of old laws by the side of later ones lies in the view common to antiquity of law as a divine decree an oracular decision of a deity. The Hebrew word for law, torah, has its equivalent in the Babylonian tertu which means an "oracle". The decision in a dispute between parties was rendered by the deity and originally no doubt before the image of the god. It was, therefore, binding for all times. But while it could not be abrogated, modification were introduced which practically changed its tenor, and since these modifications take on the form of regulations superimposed on the original law, the old was formally retained by the side of the new.

PLATE XXXIV

The Code of Hammurabi, King of Babylonia (c. 2123 — 2081 B.C.)

Thus in the oldest code of the Hebrews the so-called Book of the Covenant (Ex. 21-23, 19) slavery, while formally recognized, is changed practically into an indenture by the stipulation that when one huys a slave, he must be set free at the end of six years. So in the code of Hammurapi the lex talionis is not infrequently modified into a fine regarded as a quid pro quo, in place of the original literal interpretation. We are not in a position to indicate the age of the oldest portions in the laws of Hammurapi, but from an important document of the reign of a far earlier ruler, Urukagina (c. 2700 B.C.), we learn of legal ref orms instituted by him, ^[3] which presuppose the formulation of the laws for the regulation of temple fees, of marriage and divorce, of restitution, of wrongful acquisition of property, and the like. We are, therefore, safe in assuming that as early at least as 3000 B.C., and probably considerably earlier, the endeavor was made to provide for the orderly conduct of public and private affairs of the country by legal procedures.

The code of Hammurapi is thus not only an index of the state of law in the second millennium, but is also a witness to the high antiquity to which the formulation of laws in the Euphrates Valley reverts. Taking Hammurapi 's code as it stands, it is both interesting and important to detect the systematic manner in which the statutes are put together. ^[4] After a series of introductory regulations on evidence and judicial decisions, the entire domain of law under the two aspects of things and persons is divided into six groups, Personal Property, Real Estate, Trade and Business Relations being treated under the former aspect, and the Family, Injuries and Labor under the second aspect.

Under Personal Property, we have theft of objects, further subdivided according as the theft is from a temple or palace or from an individual, kidnapping a minor, fugitive slaves, aggravated forms of theft, as burglary, highway robbery, robbery with murder, and theft from a burning house. Under Real Estate there are first treated the laws regarding the holdings of state officials with their duties, rights and restrictions, and covering such subdivisions as the loss of one 's holdings through various causes, the relation of the holder to claimants, inalienable holdings of animals or realty.

There follows the division of private realty with subdivisions like hired fields and payment of rent, unreclaimed land, subletting, payment of debt on one's field, mortgages, damages to fields and crops, laws in regard to orchards or date groves, leasing of productive groves, lease of houses, etc. ^[5] Under Trade and Business, the regulations for suits against or by merchants and peddlers, wine-selling, debts, suits for debts, storage and deposits.

This closes the first of the two larger divisions dealing with things. Among the most interesting features of the code are the statutes in the second division, treating of the family in all of its many aspects, including the definition of marriage, adultery, the suspect wife, remarriage, desertion, divorce, rights of wives, relation of wives to concubines, slave wives, deserted wife, mutual responsibility of wife and husband, killing of husband, incest, breach of promise, dowries, rights of children, status of widows, daughters who became votaries, adopted children and disinheritance. A second of the larger subdivisions takes up the important subject of injuries, specifying the punishment or fine in case the injury is done to males, further distinctions being made as throughout the code between injuries to freemen and to slaves, and to females, more specifically in the case of a woman with child who is maltreated.

PLATE XXXV

The first eight columns of the code of Hammurapi

The third subdivision may be grouped under laborers and labor, and comprises injuries done by doctors, surgeons and veterinarians whose profession comes under the category of skilled labor, building and shipping accidents due likewise to laborers included under the head of skilful, while the other general category of unskilled labor covers such miscellaneous subjects as damages to or by oxen, farm hands, wages of shepherds and accidents caused by them, hire of laborers of various kinds and finally slaves.

This carefully considered arrangement was on the whole consistently carried out, though it resulted in a certain confusion because of the necessity of treating the same subject (as, for instance, slaves and injuries) under various subdivisions instead of massing them together, and because of the addition of later elements in the form of modifications and special illustrations to the older subdivisions.

Footnotes and references:

[1]:

See Clay, Orient aUstische Litteratuzeitung, 1914, Sp. 1-3.

[2]:

Clay copies of the Semitic text were prepared, of which the University of Pennsylvania possesses a large fragment, published by Dr. Arno Poebel, Historical and Grammatical Texts (Phila. 1914) No. 93. The first publication of the Code with phototype reproductions, transliteration and translation into French, we owe to Vincent Scheil (Delegation en Perse, Memoires, Vol. IV., Paris, 1902, pp. 11-162) ; an English translation with the original text and transliteration, as well as a complete glossary was published by the late Prof. R. P. Harper, The Code of Hammurabi (University of Chicago Press, 1904) ; another English translation in convenient form we owe to C. H. W. Johns, The Oldest Code of Laws in the World (Edinburgh, 1903) ; the best German translation is that of Prof. Arthur Ungnad in a publication in conjunction with Prof. J. Kohler, Hammurabi's Gesetz (5 parts, Leipzig, 1904-1911), containing in addition to the translation comments on the legal aspects by Prof. Kohler, and a selection of business and legal documents of the Hammurapi period, illustrating the application of the code in actual practice. The spelling of the name with "p" appears to be a more correct form and is now generally adopted by scholars.

[3]:

Thureau-Dangin, Sumerisch-Akkadische Konigsinschriften, pp. 44-56. See above p. 130.
 

[4]:

I follow Professor D. Q. Lyon's admirable analysis in the Journal of the American Oriental Society, vol. xxv, pp. 250, seq.
 

[5]:

There is a break in the text at this point, due to an intentional erasure on the part of the Elamitic conqueror who carried off the code, and who had intended to write a commemorative inscription of his own deeds on this part of the stone. For some reason this was not done.