We can contrast the condition in Babylonia, where the individual, instead of the family, was recognized by the law to that in Rome of a later time, when the family was the unit of the state, and the pater familias managed all family affairs without state interference or restriction.
FOOTNOTES:
[1] Sayce: Social Life Among the a.s.syrians and Babylonians, 18.
[2] Johns: Babylonian and a.s.syrian Laws, Contracts and Letters, 56, 58.
CHAPTER XI.
MORALITY OF THE ANCIENT BABYLONIANS.
For some years past, the French explorer De Morgan has been making extensive excavations at Susa, the capital of ancient Persia, and before the rise of Persia, the capital of Elam as early as 3000 B.C. In the winter of 1901-1902, having removed layers of earth containing ruins of Persian palaces, he reached deposits contemporary with some of the old Elamite kings. Here was discovered a stone monument inscribed with the code of Hammurabi. As we have seen, this king ruled Babylonia about 2000 B.C. He it was who united all the little city-states into one kingdom with its capital at Babylon. Proving himself a statesman as well as a warrior, he devoted himself to the welfare of his subjects. He repaired old ca.n.a.ls and constructed new ones, restored the temples and above all, gave the country a uniform system of laws. These laws were not made by Hammurabi--generally speaking at least. They had been long established by custom and he merely codified such customs and earlier decisions into a system so that justice might be administered alike throughout the realm. The laws were then inscribed upon stone slabs and erected at certain places where the people could read them, and those who felt themselves injured might know what redress lay open to them.
The particular stele unearthed by De Morgan had been set up originally in the town of Sippara. Later Elamite kings became powerful enough to invade Babylonia and lay the country under tribute. During this period, one Elamite king had removed the stone monument from Sippara and taken it home with his spoils. It had graced his triumphal procession upon his return and was set up at his capital. 49 columns of inscription were engraved upon it, but the Elamite king caused 5 to be removed and the stone to be re-polished, in order that his name might be therein inserted. For some reason this was forgotten or omitted.
Of the 282 laws once carved upon the stele, all are still legible. Their discovery is most important for the history of ancient Babylonia, as it has enabled scholars to reconstruct the standards of morality and justice current when the country came into its first strength and power.
We may be sure that these laws were in vogue much earlier than the time of Hammurabi and they lived on with little change for many years after.
They without doubt furnished the basis for the legal code throughout the history of Babylonia, and without some knowledge of them we would never have been able to understand the civilization of the country as it is known today. It is comparable to the "Mosaic Code," which is made up of different strata from different periods, cir. 1000 B.C. to 500 B.C. The similarity between the two codes harks back to an early period when the two peoples had not yet left their Arabian home, and indicates general Semitic customs. Hammurabi"s code "is concerned little, if at all, with religious matters; the chief content is almost entirely civil and criminal, dealing with such subjects as marriage, the family, property rights, agricultural and commercial activities."
It is on the basis of these laws now translated that the morality of the ancient Babylonians has been worked out. We find that the people were on the borderland of retaliation, and punishments often took the form of fines. There was still the old tribal "group responsibility"--that is, the children often had to suffer for the sins of the father. Distinction was now made between intentional and unintentional injury. Trial by ordeal was sometimes allowed, especially when magic was thought to have been used. Death was a frequent punishment. Banishment might be inflicted. On the whole, the practices in Babylonia, before and after 2000 B.C., were not so severe as those common in England a century ago, when petty larceny was met by extreme punishment.
The Babylonians carried the idea of contract and written agreement farther than any other ancient people. Understandings which are today made verbally between men were inscribed on clay tablets, duly impressed by the seals of the parties concerned, and carefully preserved. We find the law required receipts and written contracts as early as 2000 B.C.
For example, "If a merchant has given to an agent corn, wool, oil, or any sort of goods to traffic with, the agent shall write down the money value, and shall return that to the merchant. The agent shall then take a sealed receipt for the money that he has given to the merchant. If the agent forgets and has not taken a sealed receipt for the money he gave to the merchant, money that has not been acknowledged by receipt shall not be put down in the accounts."[1] Regarding money given bankers: "If a man has given another gold, silver, or any goods whatever on deposit, all that he gives shall be shown to witnesses, and take a bond and so give on deposit. If he has given on deposit without witnesses and bonds, and has been defrauded where he made his deposit, he has no claim to prosecute."[2]
"An eye for an eye, and a tooth for a tooth" was demanded by the Code of Hammurabi.
"If a man has knocked out the eye of a patrician, his eye shall be knocked out.
"If he has broken the limb of a patrician, his limb shall be broken.
"If he has knocked out the eye of a plebeian or has broken the limb of a plebeian, he shall pay one mana of silver.
"If a patrician has knocked out the tooth of a man that is his equal, his tooth shall be knocked out. If he has knocked out the tooth of a plebeian, he shall pay one-third of a mana of silver.
"If a man has struck another in a quarrel, and caused him permanent injury, that man shall swear, "I struck him without malice," and shall pay the doctor."[3]
Theft at a fire was made a capital offense. "If a fire has broken out in a man"s house and one who has come to put it out has coveted the property of the householder and appropriated any of it, that man shall be cast into the self-same fire."[4]
Fees of the surgeon were graded by law, and severe penalties were inflicted for unskillful operations. Probably these were not strictly enforced but were intended to prevent malpractice.
Marriage laws and regulations governing inheritance were necessarily definite in a country where a man might have more than one wife. Since perpetuation of a family through adoption was frequent, laws protected both foster children and foster parents.
"If a man has brought up a child, whom he has taken to be his son, but has not reckoned him with his sons, that foster child shall return to his father"s house.
"If a craftsman has taken a child to bring up and has taught him his handiwork, he shall not be reclaimed. If he has not taught him his handicraft, that foster child shall return to his father"s house."
Injury which today would necessitate the payment of damages, in ancient Babylonia might even be punished with death. "If a builder has built a house for a man, and has not made his work sound, and the house he built has fallen, and caused the death of its owner, that builder shall be put to death. If it is the owner"s son that is killed, the builder"s son shall be put to death.
"If he has caused the loss of goods, he shall render back whatever he has destroyed. Moreover, because he did not make sound the house he built, and it fell, at his own cost he shall rebuild the house that fell."
Workmen were required to do faithful work or make good consequent losses. "If a boatman has built a boat for a man, and has not made his work sound, and in that same year that boat is sent on a voyage and suffers damage, the boatman shall rebuild that boat, and, at his own expense, shall make it strong, or shall give a strong boat to the owner."
In a land where the cultivation of the soil was the great industry, naturally many regulations refer to the lease of ground and the rent to be paid by the farmer to the owner of the estate. Because the very production of the soil depended upon the maintenance of ca.n.a.ls, neglect in the care of the dikes was severely punished.
"If a man has hired a field to cultivate and has caused no corn to grow on the field, he shall be held responsible for not doing the work on the field and shall pay an average rent.
"If a man has given his garden to a gardener to farm, the gardener, as long as he holds the garden, shall give the owner of the garden two-thirds of the produce of the garden and shall take one-third himself.
"If a man has neglected to strengthen his dike and has not kept his dike strong, and a breach has broken out in his dike, and the waters have flooded the meadow, the man in whose dike the breach has broken out shall restore the corn he has caused to be lost. If he be not able to restore the corn, he and his goods shall be sold, and the owners of the meadow whose corn the water has carried away shall share the money.
"If a man has opened his runnel for watering and has left it open, and the water has flooded his neighbor"s field, he shall pay him an average crop."
That justice might be administered uniformly throughout the realm, courts were established in different cities, and Hammarabi insured the well-being of his subjects by further creating a court of appeals, held in Babylon. To this superior court anyone, thinking himself unfairly treated in the lower courts, might have a hearing. Perjury was severely punished. "If a man has borne false witness in a trial, or has not established the statement that he has made, if that case be a capital trial, that man shall be put to death.
"If he has borne false witness in a civil law case, he shall pay the damages in that suit." Judges were always restricted by law and were held to strict account in administering justice. Any suspicion of bribery expelled the judge from his seat.
"If a judge has given a verdict, rendered a decision, granted a written judgment, and afterwards has altered his judgment, that judge shall be prosecuted for altering the judgment he gave and shall pay twelvefold the penalty laid down in that judgment. Further, he shall be publicly expelled from his judgment-seat and shall not return nor take his seat with the judges at a trial."
Other public servants were required to deal justly with the people.
Governors of provinces who oppressed the inhabitants or in any way were unjust to those dependent upon them, laid themselves liable to a death sentence if charges against them could be proven.
In the light of these laws we would conclude that the Babylonians had reached a high stage of morality when authentic history of their kingdom begins. Honesty, truth, fair-dealing,--these were demanded by the laws of the realm, and penalties attached to crimes violating them. One who was injured must bring his cause before a judge and allow disinterested persons to render a decision. Instead of retaliation upon the a.s.sailant, money was sometimes received as compensation for injury. In more flagrant cases, the law imposed the penalty of death. A man could not slander his neighbor without risk of punishment.
"If the claimant of lost property has not brought the witnesses that know his lost property, he has been guilty of slander, he has stirred up strife, he shall be put to death.
"If a man has not his witnesses at hand, the judge shall set him a fixed time not exceeding six months, and if within six months he has not produced his witnesses, the man has lied; he shall bear the penalty of the suit."
Protection was a.s.sured the weak and helpless by this code. It was customary to receive hostages as security for debt--the debtor"s son and slave. Such a hostage was ent.i.tled to fair treatment and a law made it an offense to misuse him. "If a hostage has died of blows or want in the house of the creditor, the owner of the hostage shall prosecute his creditor, and if the deceased were free-born, the creditor"s son shall be put to death; if a slave, the creditor shall pay one-third of a mana of silver, furthermore, he shall lose whatever it was that he lent."
Regarding intemperance among the Babylonians, they used beer freely, but appear to have gone to no such excesses as were common among the Egyptians. The price of beer was fixed by law and an overcharge was punishable by drowning.
The morality of the people seems to have been very slightly influenced by their religion. While all Semitics have been strongly religious people, the Babylonians had reached a certain degree of secularism in their religion. Their temples were financial centers for the country and were of more direct interest to the people because from them they might negotiate small loans to tide them over emergencies perhaps than because the deity of the locality had there his center of worship.
A lengthy prologue setting forth the t.i.tles of Hammurabi and the G.o.ds that gave him power, preceded his code of laws. These were followed by an epilogue similar in nature. The king calls down curses upon any future ruler who should cause his wholesome regulations to be altered.
"In the future, in days to come, at any time, let the king who is in the land, guard the words of righteousness which I have written on my stele.
Let him not alter the judgment of the land which I judged nor the decisions I decided. Let him not destroy my bas-relief. If that man has wisdom and is capable of directing his land, let him attend to the words which I have written upon my stele, let him apprehend the path, the rule, the law of the land which I judged, and the decision I decided for the land, and so let him guide forward the black-headed race; let him judge their judgment and decide their decision, let him cut off from his land the proud and violent, let him rejoice in the flesh of his people."[5]
Blessings were given him who should respect this code of laws and terrible curses heaped upon any who might disregard it. Much of Babylonia"s prosperity appears to have resulted from the enforcement of these impartial judgments.
[Ill.u.s.tration: BABYLONIAN BRICK. THE KING"S NAME AND t.i.tLES WERE INSCRIBED ON EACH BRICK.]
FOOTNOTES: