The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples: The Schweich LecturesJohns, C. H. W. (Claude Hermann Walter)
History
The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples: The Schweich Lectures
Johns, C. H. W. (Claude Hermann Walter)
Jewish law; Law -- Iraq -- Babylonia
In connexion with feudal tenure we find precisely common-law dower, the
right of a tenant in fee-simple or entail to the enjoyment for her life
of a third of the undevised lands of her husband which he held in that
possession. An attentive examination of the tenure of a Babylonian
retainer of the king, who held land on military service, or other royal
service including public works, subject to strict entail unless
forfeited by failure to carry out commands, will reveal strange
likenesses to the feudal system.
The Romans have usually been regarded as inventing the institution of
the will, as Sir Henry Maine pointed out, which has played so great a
part in modern society, but like the contract, we have it in the Code
and contemporary practice in no merely rudimentary form. True that in
the Code the only case considered is where the will operates within the
family, but other cases seem to occur in practice. We find that a man
can assign even land, garden, or house by a sealed and witnessed deed to
a favourite child, and if so, when his estate is divided by his children
at his death, they cannot claim it as part of the estate to be divided;
the favoured child takes equal share with them in the estate left beside
his own special legacy. The husband too could leave property to his
wife, and she could devise it as she chose, but only to her children by
him; not to her own family, nor children by a later husband. If a father
vowed his daughter to religion, he could, by sealed and witnessed deed,
give her specific freedom of testamentary disposition of what she
received from her father as a marriage portion on taking her vows. She
had a right to a marriage portion any way, which was in lieu of a share
of her father’s estate. If she took it on marriage it was her portion
for life, and was equal to what a son would take as a son’s share at
her father’s death, but if she died childless it reverted to her family.
On taking a vow, she would have the same portion as if married, but as
she would then die childless, unless her father gave her power to
dispose of it by will, her brothers or family would resume it.
The importance of status is a well-known characteristic of certain
ancient Codes, and is often commented upon as a feature of special
interest.
The Code recognizes three grades of society by dealing with them in
separate legislation. They are called the _amêlu_, the _mushkênu_, and
the _wardu_. Etymology, analogy with other society, and above all an
attentive consideration of their treatment in the Code have made their
meaning clear. But almost every attempt to translate these words has
failed to convey exactly the true position.
The _amêlu_ was evidently a man of the predominant class, the
aristocracy, probably men of the conquering race, Amorites and those
admitted by intermarriage, adoption, or other custom to the same status.
We may compare their position with that of the Normans in England.
Public-domain text, read in full here on John Shaqi.
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