Front Page Titles (by Subject) chapter 4: Babylonian Law - The Story of the Law
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chapter 4: Babylonian Law - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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From the laws of the Celtic Aryans it is necessary to go back in time some thousands of years in order to find the original line of legal development and a much higher condition of law. Leaving on one side the Egyptians, for the reason stated that they are not in that main line, the story of the law of civilized men begins with the Semites in Babylonia, thence it passes to Palestine, thence to the Greeks, the Romans, to continental Europe and to the English. It will appear that this legal evolution proceeds in an unbroken and continuous development with each race passing on something of achievement to its successors. It will be found, as already indicated, that the law continued to be made by the general average opinion of the social aggregate, with different ways of expressing this opinion, while the search still went on to devise a tribunal adequate and competent to ascertain the law in an authoritative way in the form of general rules, yet flexible enough to reconcile the rigidity of a general rule with particular circumstances of peculiar hardship. This search for a competent tribunal is the main problem of law.
The Semitic races are a part of the great Caucasic race. One part of the Semites flowered into a civilization, of the highest order till then attained, in that part of the world where Hebrew legend placed the original birthplace of man. This country was formed by the deposits of the Tigris and Euphrates rivers that flow from the highlands, and the fluviatile lands were constantly expanding into the great alluvial plain which lies at the head of the Persian Gulf. Prior to this time the most advanced portion of the human race in Egypt and in Asia had begun the use of the highly polished stone weapons which marked the beginning of the Neolithic Age. This could not have been subsequent to 10,000 B. C. An Aryan or Semitic race called the Sumerians (for the theory of the Mongolian character of the Sumerians is now exploded) was found in possession of this alluvial plain. They first developed to some extent this land. They had their villages, the cultivated lands, irrigating canals and a growing population. Their highest attainment was their development of written language. As in after ages “the Assyrian came down like a wolf on the fold,” so the Semites came down on the Sumerians. Then first began that long series of conquests, whereby the more savage barbarian, seeing a rich land which has reached wealth and the comforts of civilization, true to his bandit and robbing nature which urges him to take what he can from others not of his tribe, moves with overwhelming force upon peace-loving, hard-working communities, and conquers them with fire and sword. Until the last few centuries this has been an easy task.
There has been much foolish talk to the effect that there is something weakening, enervating, and corrupting in honest work, in steady labor, and in the accumulation of wealth, whereby men are enabled to expand their minds and advance the march of civilization. Modern Europeans as well as the Romans and the Greeks used this language because they were descended from such covetous savages, but civilization is not corrupting nor enervating. The simple fact is that men who have work to do, who have learned the lesson of fruitful toil, who delight in seeing around them the works of peace and civilization, cannot always be ready for war, cannot be continually training themselves for battle as can the tribes of savages who are always ready to move in a compact mass on any unprepared community. An Alaric, an Attila, a Theodoric or a Clovis, a Gaulish Brennus, a Vandal Genseric, a Saracenic Othman, or Omar, or a Mongol Tamerlane deserves no credit for having overrun regions full of peaceful civilization. Their weapons were as good and their forces larger. On anything like equal terms the civilized man has always defeated the savage. But the nonsense about the corruptions of civilization is probably the most wearisome stuff in our histories.
As early as perhaps 5000 B. C. a Semitic tribe called Akkad, or Highlanders, moved down upon the Sumerians, and the union of these two races produced the most talented race that had yet appeared on the earth. The conquest was apparently an easy absorption of the invaders. The Semites appropriated as well as they could the Sumerian customs and established themselves in the Sumerian cities. There was developed in the course of a few thousand years by this Babylonian race a perfected system of irrigating canals applied to cultivated lands. The fertility of the country seemed afterwards to the Hebrews to make a veritable Garden of Eden. This race developed for western Asia, at least, the art of writing. The writing was by cuneiform characters upon clay plates that were then hardened and preserved. This method was older than and far superior to the cumbrous hieroglyphics of the Egyptians. The characters stood for syllables. The Semites expanded this writing into a most expressive language. The use of language in writing at once added great divisions to the law.
This race also probably invented the art of making weapons and other articles out of bronze, at first a natural alloy of copper. It is the first sign of metal-working in the history of the human race, and the bronze probably came from the Armenian country. As early as 5000 B. C. bronze articles are found in Babylonia. The working in bronze was probably the result of an accidental discovery, arising from the fact that bronze can easily be made malleable and then hardened. Bronze weapons were made in imitation of the cumbrous polished Neolithic stone weapons that had been in use over four thousand years; but so slow is man to change his ways that the use of bronze in Babylon did not become general until about 3000 B. C. The working in bronze passed to Egypt after a long interval, but the Bronze Age in Egypt did not begin until about 1600 B. C., and it passed to the Greeks about the same time.
The effect of the use of bronze became very soon apparent, as the bronze weapons were gradually made lighter, for they gave superior weapons and bronze tools made possible the dressing of stone and the building of stone structures.
The Babylonian cities with their growing manufactures and wealth formed the greatest center of trade in that age of the world. The main trade route from the Orient, with caravans continually setting out for Asia Minor and the Syrian cities, furnished a very large commerce. Manufacturing of various kinds in these cities made a division of labor possible. It is impossible to overestimate the change that had come. Suddenly, comparatively speaking, we are taken from the pastoral age of the Aryans and the Semites and put into a civilization of cultivated lands, an elaborate system of irrigation, permanent houses, large dwellings made of unbaked bricks or of stone, and of great temples. In fact it is apparent that the system of laws among the Babylonians must be adapted to a very high and complicated civilization of a great commercial community. Outlanders, being of some use, ceased to be enemies. Commerce cultivated good relations. Men in this complicated civilization owed duties to many more different people. A law of contract, of an easy and flexible kind, must develop to suit a commercial and banking stage, with cities engaged in manufacturing and in all kinds of commercial transactions, and a surrounding country engaged in very productive agriculture. Settled forms of agriculture add a new body of law. Yet necessarily their laws show many characteristics inherited from a primitive culture, for men will long cherish their used and accustomed ways.
The original form of government in the cities had been theocratic, following the common original development among Aryans and Semites, which originally lodged power in the priests and then passed the duty of leadership in war to kings and chiefs as a part of the discipline needed for conquering hordes. These Semites had passed far beyond the point of the polytheism of the Aryans. Each city had its own god, or in some instances a blend of more than one god, but the Semitic tendency was toward the one deity, although the Semites readily acknowledged that there were other gods presiding over other cities. Each city was ruled by a chief priest, and he gradually took on the proportions of a petty king but retained his character of a priest. This priest-king originally sat at the gate dispensing justice, as in other Semitic tribes like the Hebrews, hearing the complaints of suitors, adjusting their disputes, and laying down the law. But the Babylonians developed a trial court and an appellate court system.
At last one great king, Sargon, about 2500 B. C. subdued the whole of Babylonia and ruled a united kingdom. Two hundred years later came the greatest of these Babylonian rulers. He founded the city of Babylon, which was to remain for over seventeen hundred years the great city of the world. He kept his governor in each city, but the prevailing god in Babylonia came to be a blend of the two gods Baal and Marduk, whose great temple rose in Babylon. This king was Hammurabi and he was, no doubt, a very enlightened ruler. The kings of Babylon, for the protection of their trade route, gradually extended their empire toward the west until the Babylonian Empire stretched to the Syrian coast. They conquered by means of better weapons and a better discipline.
But these people were far from being entirely civilized. One curious survival is seen that must have been based upon some primitive belief that went back to a time when a wife, if she had no children, lost all right to share in the family estate, and lost her status as a wife. The reason for the legal custom was plain enough, and one result of this condition was that a wife could give her husband a slave or maidservant and claim the slave’s children as her own. This practice is clear enough in the story of Abraham, Sarai, and Hagar. A different result of the legal situation as to a wife without children, inherited from a time of an utter lack of any idea of chastity, was a practice of virgins at the temple of Babylon. It is said that the original practice was for the virgin to stand at the temple and sell her favor for money to any casual passer in order to give the money to the temple as an offering to the great goddess Ishtar. Thus her fertility was assured. This form of the practice seems to be doubtful. The established practice was for the virgin to pay the priest for his embrace, and this is probably the original religious ceremony. It seems far more likely as a primitive priestly belief gradually becoming an imposition. It was widespread among the Aryans, and in India to-day the practice as a regular proceeding from a remote past is for the bride to cohabit first with a Brahmin priest. In Europe either the Celts or the prior inhabitants had the same ceremonial. It came down even to medieval times as the jus primae noctis or le droit du seigneur, but among the Semitic Hebrews the practice never existed, for among them, as among us, a lack of chastity in the bride that has been concealed is sufficient ground for annulling a marriage. But it is likely that the chastity idea is not a primitive belief.
A final invention that came out of these lands or Egypt was the discovery of the working of iron about 1400 B. C. It rapidly supplanted bronze, and as the Stone Age yielded to the Bronze, so the Bronze yielded to the Iron Age, and in the Iron Age with its modification of steel the world has always remained.
Owing to a wide use of writing among the Babylonians they committed all transactions to writing. Their legal custom (which is called a statute of frauds among us) that required practically every transaction to be evidenced by a writing, and the preservation in the ruins of cities of clay plates on which are written deeds, bills of sale, bonds, receipts, accounts, drafts drawn at a distance, promissory notes, and many judicial decisions constituting the oldest law reports, give us much more certainty as to Babylonian law than we have regarding any other ancient system except the Roman.
At the head of the government stands the king. He respects the rights of the different cities under his sway, but his kingdom is a city-state ruling other cities, as was the wide sway of Athens, of Rome, of Florence, of Milan, or of Venice in later ages. The king does not profess to be a lawgiver or a legislator, but he has the custody of the laws and he assumes the duty of saying what they are; and for the first time it appears that the state has assumed the duty of doing justice to its citizens. This point had slowly been reached through the ages and was a further development of the instinct, now a reasoned process, of protecting the social state. The laws are delivered to the king as divine by the god of the city, and the oldest collection of laws in existence is the so-called code of Hammurabi. It dates from between 2250 and 2000 B. C., and the older date is probably nearer the true time. These laws were first discovered from their inscription upon a diorite stone, but other older copies in clay have remained. This is the origin of the practice of the laws of various races being inscribed on stone. But in every instance such laws are merely the old, settled customs reduced to writing.
At the head of the stone is the figure of King Hammurabi receiving the laws from the seated figure of the god. The laws open with Hammurabi’s words: “Law and justice I established in the land, I made happy the human race in those days.” Thus early we get a picture of a great king who felt that his highest claim was that he made his people happy. The first part of the laws has been erased by some subsequent king, but the far greater part and all the important part of the laws inscribed remains. This code can be supplemented by a vast number of clay documents of various kinds mentioned above.
As time passed on, the Babylonian kingdom suffered many reverses. Gradually higher up on the rivers arose the state of Assyria with its god Ashur. The Assyrians had the same system of laws, generally speaking, and they had received from the Babylonians the art of writing documents. By this time a language called Aramaic and coming from Syria became widely diffused through all of Mesopotamia and many of the Assyrian documents are in this language, which seems to have been used indiscriminately with the Assyrian tongue. The Aramaic was afterwards to become the language of the Hebrews. In process of time the Assyrians absorbed much of the civilization of Babylon, but they were never the talented race that had made the first great civilization. As time went on the Assyrians, through their better disciplined army of bowmen—another instance of a better weapon and better discipline—became the conquerors of the world from 900 B. C. They disputed the control of the East with the Egyptians and after the great Egyptian conquerors overran the territory reaching from Egypt as far as Mesopotamia, the Assyrians conquered the Egyptians and ruled all of western Asia and Asia Minor in one great empire. A single people in their mountain fastnesses repelled the Assyrian conquest. They were a part of the Hebrews, although the greater part of Palestine passed to the Assyrian rule.
The Assyrian Empire exhausted itself by its continuous war and another Semitic race, the Chaldeans, resuscitated the great empire of Babylon. They finally conquered even the remnant of the Jews, destroyed Jerusalem and transported a large part of the population to Babylon, where it remained during the Captivity until the Babylonian Empire was finally destroyed by Cyrus, an Aryan conqueror from the uplands of Persia. But the laws of Hammurabi endured for thousands of years through all these changes; and even in after ages when Seleucia was the capital of the Seleucid successors of Alexander of Macedon, and still later when Bagdad was the city of the Caliphs, the successors of Mahomet, Omar, Othman, and Ali, the same laws continued to govern a fairly flourishing land. It was reserved for the Turk to turn Mesopotamia into a desert, but perhaps under another rule Babylonia may regain something of her ancient fertility.
As will later appear, many of these Babylonian laws, especially the commercial laws, passed to Palestine and Syria and to Asia Minor and its Greek cities, then to Greece itself and formed the basis of the commercial code at Athens. From Athens and Rhodes the same laws passed to Rome, and from Rome were diffused through continental Europe, and they exist to-day. One point to note is that the law among the Semites, being the expression of divine and errorless wisdom, must necessarily be unchangeable. The only way in which the law could be ameliorated was by a delivery of new law from the god to the priests or to the king. The connection between the law and the priest was plain in Babylon, but the secular judges and the civil courts gradually supplanted the judges and the priestly courts. This was the process in Palestine and long afterwards in England. From Palestine the connection between law and priest passed to Rome after the advent of Christianity, and out of the Hebrew law and the Roman law was created the canon law. This situation was dominant in Europe all through the Middle Ages, and from its results we are not yet entirely freed. These developments will be noted later in the proper connection.
In considering these laws of Babylonia we may consider first the public law. The king is the head of the state, the guarantor of the laws and of justice to his people, the high priest and representatives of the god. He rules by divine authority. The institutions were the work of the god. As St. Paul was afterwards to say, “The powers that be are ordained of God.” The Babylonians agreed with the divine right of kings, which was afterwards to be developed by the philosophers of absolutism from Hobbes to Hegel. The king was deified just as afterwards were the Roman emperors. Under the king were the nobles, the freemen, and the slaves. The word for a noble became also the word for a freeman, and this change showed a growing tendency to political equality. One distinction was that a freeman must accept compensation for an injury, while a noble could exact a retaliation for a corporal injury. The nobles were probably the conquering race and kept their own customs like the Franks in Gaul or the Normans in England. The noble for injuries inflicted by him paid a heavier compensation. The analogy of the situation to that of the Normans in England is plain. The freemen constituted the bulk of the community that was free. Below them were the slaves and serfs. The slave belonged to his master, but he could buy his freedom or could be manumitted. If a slave married a free woman, her children were free and half of the property was free to her. The slaves on the estates were generally of a subject race and were bound to the soil and had rights in the land they possessed. They were probably no worse off than the original English copyholder on the manorial estate.
Strangers and aliens were numerous in the cities. No question seems to have been made that they should have the benefit of the laws. It was a general rule among Semitic commercial communities that, to quote the Bible, “There shall be one law for the homeborn and for the stranger that sojourneth among you.” Even in our Constitution the jurisdiction given to federal courts to protect the foreigner or the citizen out of his own state can be traced directly back to the Babylonian law. Generally speaking, there was one uniform system of law in Babylon, all received from the god and all in fact customary law. Much of the old savage law was gone. There was no tribal law. This had all passed into the state and city law. The practices of the blood feud, self-help except distress, and marriage by capture were gone, but the family solidarity and the district responsibility were substituted for the kindred. The law of exact retaliation remained as a rule of damages. There was private property in the head of the family as representing the whole family.
The king had his own estates. The different cities had the duties they levied on goods in transit and ferry dues. The ferry dues would indicate one public utility owned by the city. The land in private ownership had its fixed charges, like the knights’ fees under the Norman kings. A definite area furnished for the army a bowman and a pikeman. The latter carried the shield for the bowman and for himself. Royal authorities commandeered property and gave a receipt for it. The land was bound to furnish the men for the army but the conscripts were often, it would seem, of the condition of serfs. The nobles went to war and no doubt furnished the officers for the army. The law was that a man was bound to serve but six times in the army.
Certain estates were held of the king, like the grand and petty sergeanties under the English kings, on personal services to be rendered to the king. All estates that were ancestral were tied to the family, but the holder could alienate them subject to the family right to redeem, which was not limited in time. This law among the Hebrews is vividly pictured in the book of Ruth. Much land was rented, especially by the temples, which held great possessions in land. This was to be repeated in the great possessions of the medieval church in Europe. The temple estates furnished many leases and many burdens were imposed on the temples. They must preserve certain hereditary rights in a portion of the temple of a character approaching the English advowson, or right to appoint the incumbent of a church. The temples were required to make advances to the poor and to furnish seed and corn and implements, and they were required to redeem certain prisoners who had been captured in war. It should be remembered that there were no poor laws in England until after the confiscation of the great estates of the abbeys and monasteries.
The law of landlord and tenant seems fairly enlightened. The rent was as contracted for, but if there was a failure of crop a moratorium or delay as to payment took place. If the rent was fixed, an accidental loss fell on the tenant; the tenant was bound to cultivate the land in a proper manner, or, as we should say, in a husbandlike manner, and he might leave the land if he left it in good condition. The tenant had power to sublet the land, but if the lease was one on profit-sharing, as where a temple was landlord, and the tenant was supplied with implements and cattle, there were harsh penalties on the tenant for selling the implements or mistreating or subletting the cattle. One very advanced sort of law was a building lease. The tenant put up the building which at the end of eight or ten years belonged to the landlord, just as we have our ninety-nine-year building leases. There were contracts of hiring cattle. The lessee was an insurer against loss, that is to say, he took the risk. He was required to keep the cattle properly bred and was responsible for any trespass on private property by the herd. Since there was an elaborate system of irrigation, that organization took the form which it has generally preserved. There was a general ditch from which the water was taken out into private ditches. It is probable that there was a public superintendence of the taking out of the water and of its use. The user was responsible for all damages resulting from the escape of the water after he had taken it. This law remains until the present day.
There was much employment of hired labor and in the case of all sorts of hired workmen the rate of wages was fixed by law. This is the original of the English Statutes of Laborers. There was a relation, therefore, of master and servant distinct from that of owner and slave or serf, just as that condition afterwards arose in England. In regard to other domestic relations, the law as to husband and wife provided for a marriage by purchase, arranged between the fathers. It must have been a curious sight throughout Babylonia, when the day came when all the unmarried girls of proper age were publicly put up for marriage by purchase. But it should be remembered that when in the early settlement of Virginia unmarried girls and women were brought over from England, they were put up for sale in the same way that fathers offered their daughters for sale in Babylonia. There was no marriage without a written contract, and it provided whether or not the husband became liable for his wife’s debts before marriage. If the contract was silent, he became responsible, but by contract he could repel this liability. He was liable for his wife’s debts after marriage. A divorce was optional with the husband, but if there were children their support and the wife’s support must be provided for upon a divorce. This is our law of alimony. The wife had her action against the husband for cruelty and neglect, and if the husband died leaving children, the wife could not marry unless the interests of the children of her former husband were fully protected. In this early civilization a wife could be a sole trader, for there was a penalty directed against those who led married women into improvident mercantile ventures.
All deeds were drawn up by an officer corresponding to a notary. These men were called scribes or scriveners. The deeds were confirmed by oath as to the warranty and publicly sealed and witnessed by witnesses. The greatest freedom of contract by agreement existed, and it is probable that there was no formal character of contract. It was all a matter of intention and agreement as evidenced by a written document. The Babylonian law as to written agreements was about what our law is to-day. A contract put into writing cannot be contradicted by oral evidence to the effect that the parties made some other agreement. All were what we call consensual contracts and each contract provided that any dispute arising thereon should be submitted to the decision of the king, and the parties were bound to abide by that decision. This shows that the king’s assumption of the readiness to do justice was not compulsory on the parties but was an arbitration to be agreed to, just as among the Celts the submission to the decision of a Brehon was not compulsory but the result of agreement. This was the original rule in English law as to a jury trial, when the jury was originally instituted. This is shown by our pleadings in the fact of what is called the similiter, where the one party puts himself upon the country, that is to say a jury, and the other party pleads that he doth the like. This is, in fact, an agreement to submit to a jury trial. All men know of the contracts among us to submit disputes arising under contracts or under wills to some kind of arbitration; but the conception of the jurisdiction of courts is so changed among us, that no agreement to arbitrate can oust the compulsory jurisdiction of courts.
All the different transactions of sale, lease, barter, gift, dedication, deposit, loan, and pledge were matters of contract. These legal transactions have never changed their character. The promissory note for money loaned took the form of a bond to pay. Lands or goods were delivered by means of the symbolical delivery of a staff or key, as in medieval English law of livery of seisin. The agreement to pay the purchase money was sometimes in the deed and sometimes put in the form of a bond. The seller sold the goods on the basis of caveat emptor. The correctness of this rule was debated in Roman law, but it was firmly imbedded in the common law of England. It means that the seller does not warrant the goods unless he agrees to warrant.
If a man bought or received goods on deposit from a minor or a slave without power of attorney, he must produce the seller and the bill of sale or the witnesses, or he died as a thief. A man was required to give up stolen property, but he had a five-fold remedy against one who had sold him stolen property. The purchase of goods abroad was subject to the true ownership, if the goods came to Babylonia. On a sale there was a warranty as to slaves which was generally against a particular kind of sickness for one hundred days. The female slave was delivered on a three days’ approval. A Mann Act was certainly foreign to the ideas of these people.
Payment in commercial transactions was usually in money, stating the place of payment, but payments in produce were provided for with a statutory equivalence. In extensive trade transactions speculative contracts were made where money or goods were delivered to an agent to travel and sell and to reinvest the proceeds, and this sort of transaction is continued until the present day, as will appear later. By these commercial adventurings a large commerce was carried on. Caravans were public carriers and a written receipt for all goods was necessary, like our bill of lading. No other claim for goods could be made except for those in the receipt. This is the present law of carriers. If an agent to travel and sell or buy made no profit he was required to return double what was confided to him, and if a small profit was made he made up the deficiency. In other cases, and they were the normal rule, profits were shared, and, singularly enough, neither the carrier nor the agent to sell was responsible for an act of the public enemy.
On consignments to caravans the freight was paid in advance and the carrier was responsible at all events, except for acts of the public enemy. Warehouse receipts were issued for goods. Ships were hired for water carriage. On a contract for building a ship a warranty was made of seaworthiness for a certain period. In cases of collision of ships the moving ship was always at fault.
The liquor trade came in for its regulation. The keeper of a tavern must prevent disorderly conduct on the premises under pain of death. In commercial transactions payment through bankers or by written draft against deposit was common, and bonds to pay were negotiable. There was always a marriage contract, and if a wife had no written marriage contract she was not a wife in fact. Ignorant people still show an almost fanatical zeal over their marriage lines. But a curious survival was that the wife remained part of her father’s family. Among the early Romans the wife passed to the husband’s family. The wife forfeited her right as wife by misconduct, but upon her divorce she kept her dower property. If the wife failed in her action against her husband or was proven a bad wife, she was drowned. If a husband left his wife without maintenance she could take up with another man, but she must take her husband back when he returned, and her children went to the husband; otherwise she was treated as guilty of adultery. This would have been a pleasant land for Enoch Arden.
Monogamy was the rule. There were at the temples vestal virgins who married but were not supposed to have children. They furnished a substitute in the person of a handmaiden. The father had power over his daughter, but the brothers managed the sister’s property until she married, and then her husband had control. The son became emancipated on his marriage if he was of age, and he obtained his share of the property. In other words the patriarchal family and its estate had ceased to exist except as a thing to be constantly divided.
Adoption of a child was common with childless people, but if an adopted child, on the discovery of his true parents, desired to return to them, his eye or tongue was torn out. It may be assumed, therefore, that an adoption generally stood. The adopted child shared in the family property as a child and all children shared equally in the father’s estate. There was no right of the firstborn as among the Hebrews. A child could be disinherited only by a judicial decision.
The crime of adultery in the wife was recognized, but she was entitled to a kind of proof that survived for ages as the trial by ordeal. If when thrown into the river she sank, she was proven guilty, but if she floated her proof of innocence was complete. Babylonian women who intended to indulge a vagrant fancy were, no doubt, trained swimmers. In later ages William Rufus, the second Norman King of England, scoffed at the ordeal. It certainly would have been a sounder method of proof, if guilt had been shown by floating. All would have been guilty or drowned.
The law as to damages was strongly tinged by the primitive law of exact retaliation. If a builder built a house so that it fell and killed the owner, the builder was put to death, but if it killed the eldest son of the owner, the eldest son of the builder was put to death. It remained for the Jews to advance the law beyond this primitive stage and rescue the son. In any event, the builder rebuilt the fallen house. The law was that if any one destroyed another’s eye, his own eye should be destroyed. If a bone was broken, his own bone was broken. If a tooth was knocked out, his own tooth was knocked out.
There were penalties of different amounts of savagery for theft, for illegal buying or selling, or receiving stolen goods. A false claim, kidnapping, harboring of fugitive slaves, and brigandage were offenses. If a debtor’s son in the custody of the creditor suffered death caused by the creditor, the creditor’s son was put to death, and in the case of a bad builder, the penalty was exact, owner for owner, son for son, daughter for daughter. Banishment and the lash were other methods of punishment, but there was no imprisonment, it is needless to say, because prisons were far in the future.
A curious fact was that the law as to dangerous animals at large was precisely the law of negligence. The responsibility of the owner depended upon his knowledge of the character of the animal. This, it will be seen, is the Hebrew law in Exodus and in Deuteronomy, and from the Hebrews it passed to the Romans and to England. Carelessness or neglect was punished and the standard of negligence seems to have approached our standard of reasonable care. A surgeon was held to strict accountability. If he caused loss of life or limb he lost his hands, if a veterinary, he paid for his malpractice. It has taken long ages for doctors to achieve the comfort of burying their mistakes.
It would seem that witnesses appeared before the judge and a curious analogy to our separation of witnesses at the trial was the injunction when witnesses were summoned that they must not come together. In later Hebrew law witnesses were examined separately. In certain cases where witnesses would have been of no particular value or could not be ascertained, the ordeal was resorted to as a method of proof. For instance, the law provided that if a man had placed a charm upon another, and had not justified himself, the supposed wizard could make his proof of innocence by going to the holy river and by plunging in. If he drowned the accuser took his house, but if he was saved and thus proven innocent, the accuser lost his life and his house. This should have discouraged prosecution for wizardry. The same ordeal was applied to a wife for unfaithfulness, but in that case when the wife passed safely through the ordeal, the husband did not lose his life. If men are of such a mentality that they believe in spells and witchcraft, there would seem to be no better proof in such a case than the ordeal. Even in England before Sir Matthew Hale in the last half of the seventeenth century, the question of guilt of witchcraft was submitted to a jury, and among us the witchcraft proceedings at Salem convince us that the primeval savage terrified by the dark fears cast by his own ignorance still had power in fixing the law.
Women devoted to a religious life suffered death for going into a wineshop, and the slanderer of a nun or of another’s wife who could not justify was branded on the forehead. If a wife went insane she was required to be supported, but the husband could marry again. Such a law would have been a comfort to George Eliot. Whenever a contract was annulled it was canceled by being broken to pieces. Every decision of a court was given in writing. The deputy of the king in the various cities rendered decisions in the first instance and an appeal lay from his decision to a bench of judges who represented the king.
This is but a very abridged sketch of Babylonian law, but it shows what extraordinary advances had been made by this talented race. Many of the cumbrous practices of the earlier Aryans and Semites had been cast off, and the social organization was far on the highroad to the conditions afterwards attained at Rome. But it is here to be noticed that private personal property had at last emerged as the possession of the individual. Individual responsibility was beginning to dawn in the law. A law of crime as a public offense was dawning. The relaxing effects of a widely extended commerce on the primitive law are very plain. The law has now become complicated. No longer is the casual knowledge of the elders or the priests sufficient in the law. A learned class of judges is manning the king’s courts, and justice has become something that the king owes to all his land. Had it not been for the destructive effects of a conquering race like the warrior tribe of Assyrians with their new disciplined army of bowmen, and for great conquerors like the Assyrian Esarhaddon, Sennacherib, and Shalmaneser, this splendid civilization might have gone on to the finest issues. Even as it was, civilization is such a priceless possession that Assyrian, Chaldean, Persian, Macedonian, and Saracen conquerors left this garden of the world with its law practically unharmed until the unspeakable Turk reduced it to beggary and barbarism.