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judge must examine into her past (wa-ar-ka-za), and
if the fault lies with them she need not go out of
her husband's house (172). If the widow has
made up her mind to leave, she can only take with
her the seriktu (i.e. her own family's gift), the
nudunnu which her husband gave her must be left
for her sons, and she is now free to marry the " man
of her heart." 2 If she has borne children by the
second marriage, her marriage-portion is divided
between the sons of both unions ; otherwise it re-
verts to those of her former husband (ka-wi-ru ;
i73^.). 3

The widow's position is thus secured in so far as it

{ is compatible with her children's interests. She has

a home and a share in her husband's estate, and she

1 So, in one case a son recovers a slave which his mother had
sold (Marx, op. cit. p. 65, cp. p. 53). The marriage-settlement re-
verted to the sons in later Jewish times ; cp. Keth. 4 12 [10] : " The
sons that shall be to thee from me inherit the money of thy kethubta."
See pp. 87, sqq. above.

2 The last sentence in 172 (col. xiii. 1. 27) forms a new law.

3 Sayce's observation (pp. cit. p. 22 s$.) that the children of the
first marriage received two-thirds and the others a third only, may
hold good for later times. In Meissner, no. 109, a mother gives to
three sons, and they have no claim upon whatever she or her other
children may possess. Whether the former are children by another
husband or the recognised sons of a concubine is not stated.



CHAP, vi THE FAMILY 143

is free to marry again. 1 If the children are still
young, she cannot enter " a second house " (ana
bitim sa-ni-im) without the consent of the judge, 2
An examination is made of the extent of her
husband's estate, and it is entrusted by deed to the
widow and her second husband, who act as trustees
and rear up the little ones. Not a vessel (u-ni-a-tini)
may they sell, and whosoever is found buying of the
property must return it "to its owners" (a-na be-
li-su) and forfeit his money ( 177) the punishment
for the seller is not stated. 3 It is possible that
under certain circumstances the judge might refuse
his consent, and in one late contract-tablet a widow
promises not to enter into the " house of a male"
(bit zi-ka-ri), but to dwell with her sons and bring
them up, and it appears that as long as she does
this she enjoys an allowance. 4

1 There is no law as to the length of time she must remain a
widow, but it was probably not very long (cp. p. 123). The Syro-
Roman law-book gave the widow who remained ten months in her
husband's house full possession of her linen and one-third of the
jewels ; the law is scarcely of Roman origin (Bruns and Sachau, pp.

63, 193).

2 Cp. 137 (p. 119 above), where the divorced wife or concubine
may marry after her children are grown up.

3 In a contract of the time of Samsu-iluna, Hammurabi's suc-
cessor, the three sons of Namiatu dispute with their mother YaSuhatu
about the contents (? mi-im-ma nu-ma-af) of their father's house ; the
case is settled and the sons agree not to bring complaints against
YaSuhatu, Idin-Ramman (her second husband ?), and their children
(Meissner, op. tit. no. 100).

4 Kohler and Peiser, Bab. Rechtsleben^ 2 9 sq. (citing Cambyses,
no. 273); cp. Doughty, Ar. Des. 2 89 (the widow regarded as the
guardian of her sons' inheritance).



i 4 4 THE LAWS OF MOSES CHAP, vi

The Code does not take into account the rights
(of the childless widow. A New Babylonian law,
however, enacts that if the marriage-portion (here
called nudunnu] had been taken by her husband it
was to be paid in full from his possessions (nikasi],
if her husband had given her a gift (seriktii) she
was entitled to claim it and leave, whilst if she had
received no nudunnu the judge, after an examination
of the estate, was to give her in proportion to its
extent. 1

There are no traces in Babylonia of that wide-
spread objection to the re-marriage of a widow
which still lurks in Palestine and elsewhere, 2 nor is
there any evidence for Delitzsch's suggestion that
the husband's next-of-kin had duties to perform
similar to those of the Hebrew goel? Babylonia
had passed far beyond that stage where the next-of-
kin inherits the widow and has the first right to her, 4
and her position was a surer one than in Israel,
where widowhood was a reproach (Is. 4 1, 544).

1 ^4323.

2 PEFQ, 1894, p. 138 sq. ; cp. Frazer, Paus. 3 198-200.

3 Babel and Bible, pp. 14, 92 sq. The evidence is founded upon
Sargon's statement that " his father's brother took no care for his
widowed mother." But as the widow is not childless, there can be
no possibility of a levirate, and the words are usually rendered other-
wise (EBi. col. 3207). Delitzsch's conjecture, if it could be proved,
would only serve to show that the Babylonians in Sargon's day were
sociologically more akin to the Israelites than they were sixteen
centuries later under Hammurabi.

4 Cp. EBi. " Marriage," 8. The practice is still prevalent ; the
nephew will marry the widowed aunt, even when, as in one case, he
had murdered her husband, his uncle (Doughty, Ar. Des. 1 506, 2 26).



CHAP, vi THE FAMILY 145

Here, she either remained under the care of her
husband's family, or more often, perhaps, returned
to her own kin (Ruth) ; in neither case was her lot
a fortunate one, unless she was influential l or married
a second time. The original Book of the Covenant
does not interest itself on her behalf (Ex. 22 22 is
a later expansion), in marked contrast with the
humane exhortations of the Deuteronomic code.
Later Jewish law gave the widow certain rights o
inheritance (cp. Judith 8 7), and the husband might
insert a clause in the marriage-settlement giving her
the right to dwell in his house after him, and to be
nourished from his wealth all the days of her widow-
hood (Keth. 4 12 [10]). The Judaean custom, how-
ever, made this privilege depend upon the good-
will of the heirs who had the power to give her the
settlement (kethubta) and send her away (id.).

Primitive Semitic law does not recognise the \
ability of daughters to inherit. In Arabia all women
were excluded from inheritance previous to Mo-
hammed, whilst in Israel the law which allowed the
daughters to inherit in default of sons belongs to
the very latest part of the Hexateuch (Num. 27 36).
The Code of Hammurabi concerns itself with sons i
rather than with daughters, 2 but there are sufficient/
indications to shew that the daughter's right, if re-/

1 Cp. Wellhausen, Ehe, pp. 456, 467, n. i. Tamar returned to
her father's house but was not free (Gen. 38 n); Abigail, notwith-
standing Nabal's wealth, comes to David with her servants only
(i Sam. 2542).

2 Orelli's suggestion that daughters are included in the sons does
not seem very probable (Gesetz Hammurabis, p. 44, n. i).

10



146 THE LAWS OF MOSES CHAP, vi

. stricted, was more generously regarded in Babylonia.
The Code insists, for example, that the daughter
of a concubine 1 shall receive a marriage-portion
(seriktii), and if her father has given her one by
deed, and married her to a man (a-na mu-tim id-di-
is-si), she takes no share in the goods ( 183).
Failing this, it is left for the brothers to give her a
portion according to the extent of the estate (e-mu-
uk bit a-ba ; 184). The daughters of the high-
born mother were probably not treated so summarily,
but no doubt received a small share in the estate in
addition to the marriage-portion, and this is illus-
trated by a contract of the time of Sumula-ilu,
one of Hammurabi's predecessors, in which three
brothers record that they have given their sister
her share. 2 It is not likely that the daughters in
such cases had full rights to dispose of their portion ;
like the daughters of Job, they held an " inheritance
in the midst of their brethren " mentioned as an
exceptional piece of generosity on the part of the
father (Job 42 15) and received the usufruct. From
Babylonia the custom passed to the Jews of the
post-biblical period, and a father could assure his
wife in his testament that " the daughters, females,
that shall be to thee from me shall dwell in my
house and be nourished from my wealth (nekaszm)
_until they are married." 8 The care taken by the

1 marti-su Su-ge-tim^ according to Johns, "his (the father's)
daughter, a concubine."

2 Pinches, op. cit. p. 181 ; cp. Marx, op. cit. pp. 18-22.

3 Mishnah, Keth. 4 12 (10). When the father was no longer alive,



CHAP, vi THE FAMILY 147

Code to ensure the rights of a man's daughters by
his concubine finds an analogy in the Book of the
Covenant, which introduces laws relating to the
maid-servant (p. 166 below). Custom had already
established the rights of the well-born daughters, it
was only those of inferior birth who were likely to
suffer.

Further, the Code presents a group of laws pro-
viding for the class of women to which reference
has already been made the votary and the courtesan
zinnisat zi-ik-ru-um). The rights of inheritance of
the daughter of this description who has received a
marriage-portion l from her father depend upon the
wording of the tablet or deed. If he has written,
" After her whatever is good to her to give " (wa-ar-
ka-za e-ma e-li-sa ta-bu na-da-nam), that is to say, if
she has full choice, she can leave it as she will and
her brothers can have no claim ( 179). If this
clause is wanting, the brothers take her field and
garden her share in the estate and pay her corn,
oil, and wool according to its value, and if she is not
satisfied with this, she gives them to a cultivator
(irrisu) who shall provide for her. She enjoys the
usufruct as long as she lives, but she cannot sell it
for money nor dispose of it in any way, since her

if the heirs paid the minimum dowry (fifty zilzlm), the sister could
claim the balance when she attained her majority ; the court esti-
mated how much the father would probably have given her, or, if
they have nothing to guide them, she received one-tenth of the
estate {Jewish Encyclopaedia, 4 646^).

1 The question must be left open whether seriktu in this group
of laws should not be rendered simply by "gift."



148 THE LAWS OF MOSES CHAP, vi

"sonship" (ap-lu) belongs to her brothers ( 178).
\ The daughter, whether a bride or a courtesan, who
has not received a marriage-portion, on the father's
death takes a share of the goods like one son, she
has the use of it as long as she lives, and when she
dies it is her brothers' ( 180). If the father has
vowed to God (a-na i-li is-si-ma) a hierodule
(kadistii) or a virgin, 1 but has not given her a
marriage-portion, she receives a third of a son's
share as long as she lives, which, as before, reverts
to her brothers ( 181) ; if the votary of Marduk of
Babylon 2 has not received a marriage-portion, she
is still entitled to one-third of a son's share, and can
leave it after her as she pleases ( i82). 3 Possibly
these receive less owing to the character of their
position.

The votary of Marduk is the god's wife 4 vowed
to perpetual chastity, and is therefore distinct from
the devotees of I star. Like the ordinary courtesan
(zinnisat zi-ik-ru-um), these formed a separate class 5
and enjoyed special privileges.



the translation follows Scheil and Winckler.

2 According to Winckler, this includes the two classes of temple
women in 181.

3 The law also contains an obscure provision (il-kam u-ul i-il-
la-ak] which probably means that she shall pay no tax (so Johns).
As Jeremias observes (Moses ^l. Hamm. p. 17, n. i), she was perhaps
expected to leave her inheritance to the temple.

4 The ceremonies relating to the consecration of the god's couch
are given at length in K 164 (Beitr. z. Assyr. 2635) and K 629
(C. Johnston, Epistolary Literature of the Ass. and Bab. p. 1 5 5 J
Baltimore, 1898).

5 Cp. the similar class in Egypt, Burckhardt, Ar. Prov. ( * } pp.



X

pltV J



CHAP, vi THE FAMILY 149

The statement of Herodotus (1 199) that a great
system of prostitution prevailed in Babylonia has
as yet failed to find support in the tablets, and the
presence of certain clauses in the marriage-contracts
to which reference has already been made 1 is decisive
for earlier times at least. No doubt to the foreigner
there was much that was unintelligible, and the
historian has probably exaggerated what at all events
was sufficiently common (Baruch 6 43). There are,
however, many indications which, considered in the
light of comparative custom, go to prove that
Babylonia legalised and sanctified immoral practices
which in the rest of the Semitic world higher ideals
gradually endeavoured to repress. 2 The priestesses
of the temple, many of whom were of high rank,
carry on business, the profits of which doubtless
went to swell the temple funds ; one of these ladies
on a contract bears the characteristic name Amat^
Samas, " handmaid of Samas." 3

A curious law in CH, no, threatens the votary,
who was not living in a convent (E-GI-A), who
dared to open a tavern (bit GES-TIN-UO) or to

173 sqq. The Heb. zanah, as the Arabic usage shews, was
originally used in quite a harmless sense (Wellhausen, Ehe, p. 472,
n. 2 ; cp. further Noldeke, ZDMG 40 155 and n. I ; Robertson
Smith, Kinshipf ] p. 151).

1 P. 10 1, n. 5, p. 132, n. 3, above.

2 It is sufficient to recall the denunciations of the Hebrew
prophets (cp. EBi. "Harlot"). A contract referred to by Peiser
(Skizze d. babylon. Gesellsch. p. 13) illustrates the prevalence of a
practice against which Lev. 19 29 is urged.

3 KB 4 43, cp. pp. 29, 37 ; Scheil, Sippar, i. 1 107, 120, etc*



150 THE LAWS OF MOSES CHAP, vi

enter one to drink with death by burning, the same
penalty that was inflicted upon the man who com-
mitted incest ( 157). It has been conjectured that
the votaries were Nazarites and were under the
Nazarite vow to abstain from wine. This, however,
seems hardly probable, and the term Nazarite is only
fitting to the extent that the Syriac nezir is applied
to the maidens who were consecrated to the service
of Beltis. The drinking-shop was kept by women,
sometimes by female slaves, 1 and the Code imposes
upon the keeper the necessity of maintaining order,
]and condemns her to death if she does not drive off
iany riotous assemblers to the palace-guard (CH,
109). In post-biblical times the lupanar and the
tavern are practically synonymous, and tradition
accordingly assumed that Rahab kept a iravboKelov?
The Babylonian wine-shop was probably a similar
institution, on which account the votary, owing to
her sacred office, was naturally prohibited from
associating with the frequenters of such houses of
ill-fame.

The absence of further material in the Code
makes it unnecessary for us to deal at greater length
with the rights of inheritance of women in Semitic

1 So in a contract of the sixth year of Cambyses referred to by
Sayce (op. tit. p. 72). In Meissner, op. tit. no. 35, Ibik-Istar buys
a beer-house with an underground cellar.

2 Cp. the references in Levy, Chald. Worterbuch, p. 271 sq. An
obscure allusion cited by Erman (Life in Ancient Egypt, p. 144)
may imply that the women of the harem in Egypt were not supposed
to enter taverns. Meissner (I.e.] cites from a collection of Ass.
precepts : " Sir (beluni) \ enter not into the drinking-house."



CHAP, vi THE FAMILY 151

law or with the laws of intestacy. The remarkable [
features of the latter as they appear in the Syro- '
Roman law-book do not require consideration, there-
fore, and it will be sufficient in concluding our survey
of the family to notice as briefly as possible their
bearing upon the present subject. The underlying
principles, as Bruns * has pointed out in the course
of his valuable investigation, are characteristic partly
of Jewish, partly of Roman law, but there is no
sound reason for the supposition that the fifth
century should have produced any artificial or
arbitrary combination of two such distinct systems^,
Under these circumstances he argues that the kernel
of the laws existed in old customary usage in Syria,
and the resemblance which they have with Jewish
law is naturally to be ascribed to the close relation-
ship between the peoples of Syria and Judaea^
The analogies with Roman law, on the other hand,
are not sufficiently characteristic to suggest borrow^
ing. It is in the nature of things that like laws
should take their rise under like conditions among
the most widely separated peoples, although Bruns
is careful to observe that here, as in certain othef
cases, the resemblances which were already in exist-
ence have doubtless been enhanced by jurists who
were well acquainted with Roman procedure. To"
this we need only add that analogies in the Syrian
collection with Babylonian law have been and will
be noticed in these pages from time to time, and
when it is remembered that the general principles

1 Bruns and Sachau, op. cit. pp. 303-316.



152 THE LAWS OF MOSES CHAP, vi

of the Babylonian family system are distinctly re-
miniscent of ancient Rome, 1 it seems difficult to
resist the conclusion that the curious likeness of the
Syrian laws of intestacy to Jewish and Roman pro-
cedure is directly due to their Babylonian origin.
On this account, therefore, it is much to be regretted
that the Code of Hammurabi, in spite of the fulness
with which it deals with the family, has little to say
on the subject of intestacy. 2

1 P. 128, above; cp. Meissner, op. cit. p. 15, n. i.

2 Peiser (Bab. Rechtsleben^ 2 16-18) has concluded that the estate
of the man who left no son would pass to the man's parents, brothers,
or sisters ; females, provided they had male descendants, could only
enjoy the usufruct.



CHAPTER VII

SLAVES AND LABOURERS

Slaves in Babylonia Their protection Rights of slave-owners
Slavery for debt Marriage-laws of slaves Their position in
Israel Laws for Hebrew slaves Humane tendency of
Deuteronomy Status and wages of hirelings Responsibilities
of labourers and of shepherds General resemblance of laws
among pastoral folk.

SLAVERY in the East was not the institution that it
became in Italy and Greece or in the mediaeval and
modern world. The rights which a man could
exercise over his slave did not differ so widely from
those which he held over his family. The slave could
attain high positions, he could marry free women,
or be adopted into his master's family. He was not
debarred from holding private possessions or from
trading on his own account, and by this means he
was able, if fortunate, to purchase his freedom. In
a pastoral community where wants are few and
easily supplied there is little requirement for slave
labour, but with the growing strenuousness of daily I
life, with the pursuit of agriculture and commerce, J
and with the growth of luxury, there is the desire to !
avoid manual labour and to utilise the cheap services !

153



154 THE LAWS OF MOSES CHAP, vn

[ of slaves, and slavery becomes ultimately an in-
Ldispensable factor in the ancient social economy.

Slavery was the penalty for certain offences, it
was often the unfortunate climax of unsuccessful
commercial transactions, and it was frequently the
lot of captives taken in military expeditions. The
slave's standing was necessarily below that of the
hired servant, although the latter might easily sink
into slavery from which he might never emerge.
The glebcz adscripti were under an obligation to
perform a certain amount of work for their owners,
and a man's slaves were able to amass property
which remained partly at least in their own keep-
ing. 1 A distinction is always maintained between
the labourer and the slave, but under the latter term
it is not infrequently difficult to determine the
degree of servility that is implied. In Babylonia
Ithe slave forms a distinct class, ardu, fem. amtu,
corresponding to the Heb. *ebed, fem. amah, and
includes man (maid)-servant as well as male (female)
slave. That the Hebrew *ebed is often applied to
no more than a trusty retainer is familiar, and it
was not otherwise in Babylonia. 2 The terms
servant and slave must, therefore, be regarded as
synonymous to some extent in these pages.
I In Babylonia slaves do not appear to have been
[very numerous, and as a rule the contracts only refer

1 But it was strictly forbidden to do business with a slave, except
with contracts and in the presence of witnesses (CH, 7).

2 Thus CH, 146 : the amtu whom the wife has given to her
husband in marriage is degraded and counted among the amdti
(female slaves).



CHAP, vii SLAVES AND LABOURERS 155

to two or three at a time. The relations betweem
master and slave were legally secured to a greater!
degree in Babylonia than in Israel. The servant
is the property of his owner (de-el ardi)? a valuable
asset whom it is his master's interest to protect, and
for whose loss his owner is entitled to compensation.
If through the negligence of another (e.g. a
physician or a builder) the servant dies, the offender
is ordered to render " servant for servant" ( 219,
231). If a servant dies through a distraint in the
house, " of blows or of want," or if he is gored to
death by an ox which should have been kept under
restraint, the compensation is one-third of a mina of
silver ( 116, 252)^ This is also the penalty for
the maid-servant who dies from a particular kind
of injury (214). If the servant has been assaulted
or negligently doctored, and loses an eye or a limb,
the compensation is fixed at half his price ( 199,
220). The owner, for his part, was bound to regard I
the health of his slave, and pay his doctor's bill,[
though the fees in this case were considerably
reduced (two shekels, 217, 223). The man who
hired a slave from his master was bound to feed and
clothe him, and according to one old Babylonian law,
if the hired slave died through overwork, fled, or
became enfeebled, the hirer was open to a penalty. 3

1 He is entered in contracts as I SAG ardu, " one piece (head)
slave " ; cp. Gr. (rw/xa avSpetov (yvvaiKetov). As among the Greeks
and Romans, the Semitic slave has no genealogy.

2 The amount represents the average price of a slave (cp. Sayce,
op. tit, pp. 69 sq. 75 sq.}.

3 KB 4 340 : the ten KA of corn which the law fixes as the



156 THE LAWS OF MOSES CHAP, vn

One of the worst of crimes was to assist a run-
away slave. The man who brought a palace slave
(arade-kal, amat e-kat) or a poor man's slave out of
the city gate (abulli) was put to death ( 15). The
penalty is the same as for theft, and the wording
of the law suggests that it applies to all slaves, from
those of the palace to those of the poor man inclusive.
The death-penalty was also inflicted upon the house-
owner who sheltered a slave from the palace or the
poor man, and refused to hand him over at the
command of the constable (nagiru ; I6). 1 The
civil authority probably had the power to search all
houses. 2 Appeal could be made to them by the
owner of the lost slave, and in a letter of Abesu, the
eighth of the dynasty of Hammurabi, a man enlists
the aid of the officials in his search after a fugitive
female servant, and the king himself, having learned
of her whereabouts, gives orders for her to be
returned to Babylon. 3 If a man found a fugitive
slave in the open country (i-na si-ri-im), and the
slave would not name (la iz-za-kar) his owner, he
was brought to the palace and an inquiry held into
his past (wa-ar-ka-zu), after which he was restored
to his owner ( 18). If the fugitive was detained in
the house of the man who found him and was
caught in the man's possession, that man was to be

penalty appears to be paid daily until the length of time for which
the slave was hired had elapsed.

1 Probably an overseer or commander.

2 This could be done, also, in search of stolen property ; cp. p. 2 1 8,
below.

3 King, Letter s^ p. 134.



CHAP, vii SLAVES AND LABOURERS 157

put to death a case of theft ( 19), but if the slave
escaped from the finder, the man could swear (i-za-
kar-ma) by the name of God and be acquitted ( 20).
Finally, the man who found a fugitive slave in the
open country and drove him back to his owner
became entitled to a reward of two shekels of silver
( 17). Laws relating to fugitive slaves are prac-
tically the same everywhere 1 with the notable
exception of the Deuteronomic code to be noticed
presently the concealment of a runaway is regarded^
as theft, but the death-penalty is modified. Accord-
ing to the Syro-Roman law-book, a man who took
a slave that was not his, knowing that he was a
fugitive, was condemned to slavery, which, as Bruns
observes, is not in accordance with Roman law,
which only requires pecuniary compensation or a


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