III. THE LAW
The Code of Hammurabi—The powers of the king—Trial by ordeal—“Lex Talionis”—Forms of punishment—Codes of wages and prices—State restoration of stolen goods
Such a society, of course, never dreamed of democracy; its economic character necessitated a monarchy supported by commercial wealth or feudal privilege, and protected by the judicious distribution of legal violence. A landed aristocracy, gradually displaced by a commercial plutocracy, helped to maintain social control, and served as intermediary between people and king. The latter passed his throne down to any son of his choosing, with the result that every son considered himself heir apparent, formed a clique of supporters, and, as like as not, raised a war of succession if his hopes were unfulfilled.47 Within the limits of this arbitrary rule the government was carried on by central and local lords or administrators appointed by the king. These were advised and checked by provincial or municipal assemblies of elders or notables, who managed to maintain, even under Assyrian domination, a proud measure of local self-government.48
Every administrator, and usually the king himself, acknowledged the guidance and authority of that great body of law which had been given form under Hammurabi, and had maintained its substance, despite every change of circumstance and detail, through fifteen centuries. The legal development was from supernatural to secular sanctions, from severity to lenience, and from physical to financial penalties. In the earlier days an appeal to the gods was taken through trial by ordeal. A man accused of sorcery, or a woman charged with adultery, was invited to leap into the Euphrates; and the gods were on the side of the best swimmers. If the woman emerged alive, she was innocent; if the “sorcerer” was drowned, his accuser received his property; if he was not, he received the property of his accuser.49 The first judges were priests, and to the end of Babylonian history the courts were for the most part located in the temples;50 but already in the days of Hammurabi secular courts responsible only to the government were replacing the judgment-seats presided over by the clergy.
Penology began with the lex talionis, or law of equivalent retaliation. If a man knocked out an eye or a tooth, or broke a limb, of a patrician, precisely the same was to be done to him.51 If a house collapsed and killed the purchaser, the architect or builder must die; if the accident killed the buyer’s son, the son of the architect or builder must die; if a man struck a girl and killed her not he but his daughter must suffer the penalty of death.52 Gradually these punishments in kind were replaced by awards of damages; a payment of money was permitted as an alternative to the physical retaliation,53 and later the fine became the sole punishment. So the eye of a commoner might be knocked out for sixty shekels of silver, and the eye of a slave might be knocked out for thirty.54 For the penalty varied not merely with the gravity of the offense, but with the rank of the offender and the victim. A member of the aristocracy was subject to severer penalties for the same crime than a man of the people, but an offense against such an aristocrat was a costly extravagance. A plebeian striking a plebeian was fined ten shekels, or fifty dollars; to strike a person of title or property cost six times more.55 From such dissuasions the law passed to barbarous punishments by amputation or death. A man who struck his father had his hands cut off;56 a physician whose patient died, or lost an eye, as the result of an operation, had his fingers cut off;57 a nurse who knowingly substituted one child for another had to sacrifice her breasts.58 Death was decreed for a variety of crimes: rape, kidnaping, brigandage, burglary, incest, procurement of a husband’s death by his wife in order to marry another man, the opening or entering of a wine-shop by a priestess, the harboring of a fugitive slave, cowardice in the face of the enemy, malfeasance in office, careless or uneconomical housewifery,59 or malpractice in the selling of beer.60 In such rough ways, through thousands of years, those traditions and habits of order and self-restraint were established which became part of the unconscious basis of civilization.
Within certain limits the state regulated prices, wages and fees. What the surgeon might charge was established by law; and wages were fixed by the Code of Hammurabi for builders, brickmakers, tailors, stonemasons, carpenters, boatmen, herdsmen, and laborers.61 The law of inheritance made the man’s children, rather than his wife, his natural and direct heirs; the widow received her dowry and her wedding-gift, and remained head of the household as long as she lived. There was no right of primogeniture; the sons inherited equally, and in this way the largest estates were soon redivided, and the concentration of wealth was in some measure checked.62 Private property in land and goods was taken for granted by the Code.
We find no evidence of lawyers in Babylonia, except for priests who might serve as notaries, and the scribe who would write for pay anything from a will to a madrigal. The plaintiff preferred his own plea, without the luxury of terminology. Litigation was discouraged; the very first law of the Code reads, with almost illegal simplicity: “If a man bring an accusation against a man, and charge him with a (capital) crime, but cannot prove it, the accuser shall be put to death.”63 There are signs of bribery, and of tampering with witnesses.64 A court of appeals, staffed by “the King’s Judges,” sat at Babylon, and a final appeal might be carried to the king himself. There was nothing in the Code about the rights of the individual against the state; that was to be a European innovation. But articles 22-24 provided, if not political, at least economic, protection. “If a man practise brigandage and be captured, that man shall be put to death. If the brigand be not captured, the man who has been robbed shall, in the presence of the god, make an itemized statement of his loss, and the city and governor within whose province and jurisdiction the robbery was committed shall compensate him for whatever was lost. If it be a life (that was lost), the city and governor shall pay one mina ($300) to the heirs.” What modern city is so well governed that it would dare to offer such reimbursements to the victims of its negligence? Has the law progressed since Hammurabi, or only increased and multiplied?