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 [pg 072] 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.

The State appears in the light of the Ḥammurabi Code to have been composed of three great classes, the amêlu, the muškênu, and the ardu. To the first class 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 Ḥammurabi'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 muškênu 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 amêlu. He paid less to his wife for a divorce,63 and could assault another poor man more cheaply than could an amêlu. There can be no doubt that the amêlu was the [pg 075] “gentleman” or “nobleman,” and the muškênu a common man, or poor man. But the exact force of the terms is uncertain.

In process of time amêlu came to be used, like our “sir,” and even “esquire,” of those who had no special qualifications for the title. Like the “gentleman's gentleman” of the servant's hall, he was only a respectable person. So, even in the Code, amêlu usually means no more than “man.” It already appears as a mere determinative of personality in the titles 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 muškênu; 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 assaulting 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 [pg 076] could acquire property, half of which would fall to his wife and children on his death.

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 [pg 077] personal service. They were to go “on the king's errand” when ordered. It was a penal offence to send a substitute.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 locum 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 locum 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

The service on which the official might be engaged was evidently military and had risks. It is not certain whether the dannatu77 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. He held tax free, subject only to his feudal duty.

In some cases the tributary there is associated with these [pg 078] two officials. No duty is set down for him, beyond that implied in his name of paying a tribute. It is not clear that all land was held on one or the other scheme, but it is so in parts of the East still. Some land is held by personal service, some on payment of a tax. This tax later became the tithe. The personal service was later compounded for by furnishing a soldier or two for the army. The liability to serve in the levy continued to be borne by slaves and the lower classes.

That all land did owe either personal service, or tax, is probably to be deduced from § 40, where we read that though a levy-master, warrant-officer, or tributary could alienate nothing of their holdings, other land-owners could do so. But they did so subject to the buyer taking over the duty, or service, of the land so transferred. One of the classes here named, the votary, appears subject to service elsewhere. The votary of Marduk is expressly exempt from this service.78 The merchant, who represents another class, appears very often to have been a foreigner, only temporarily resident in the country.

The votary was already known to us from the contracts, but there was little to fix her functions. As seen in the Code, she was a highly favored person. Vowed to God, usually to Shamash at Sippara, or Marduk at Babylon, there seems little to connect her with the prostitute-votaries of Ishtar at Erech. She ordinarily lived in the convent, or “bride-house” of Shamash. She was given a portion, exactly like a bride, on taking her vow and becoming the “bride” of Shamash. But her property did not go to the convent. At her father's death, with her consent, her estate might be administered by her brothers, or she could farm it out. At any rate, she was provided for during her lifetime. But at her death, unless her father had specially given her power to bequeath it, her property went [pg 079] back to her family. She was not, however, doomed to spend all her days in the convent. She could leave it and even marry. But she was expected to maintain a high standard of respectability. For her to open a beer-shop or even enter one for drink was punished by burning. She remained a virgin, even if married. She could have no children and must provide her husband with a maid, if he wished to have a family. But she was carefully guarded from any reproach as childless. She ranks as a married woman, even if unmarried, and is protected from slander. Many noble ladies, and even kings' daughters, were votaries.79

The merchant continually appears. Some passages suggest that he was a state official. But this is really pressing far the interest which the state took in him. He was, doubtless, like the Jew of the Middle Ages, a valuable asset to the king. He seems to have been the usual moneylender, so much so that in many places “merchant” and “creditor” are interchangeable. A man is usually said to borrow of “his merchant,” as we say “of his banker.” Doubtless, the king also borrowed from him. It is certain that the Code was very lenient to him. But the merchant also did business in the way of ordinary trade. As a capitalist he sent out his travellers and agents with goods far and wide, even into domains where the king's authority did not reach. Much of the Code is occupied with regulating the relations between the merchant and his agent. The agency was that form of commenda which is so characteristic of the East at the present. The agent takes stock or money of his principal, signs for it, agrees to pay so much profit, and goes off to seek a market, making what profit he can. There is much to suggest that the merchant was not usually a Babylonian. In later times, the Arameans were the chief merchants, and travelled all over Mesopotamia, Palestine, Syria, and into Asia Minor.