The civilization of Babylonia and Assyria

Its remains, language, history, religion, commerce, law, art, and literature

by Morris Jastrow | 1915 | 168,585 words

This work attempts to present a study of the unprecedented civilizations that flourished in the Tigris-Euphrates Valley many thousands of years ago. Spreading northward into present-day Turkey and Iran, the land known by the Greeks as Mesopotamia flourished until just before the Christian era....

Passing to the next group of statutes dealing with the general subject of theft of property, we again note as a curious principle a distinction according as the object stolen is sacred or profane. Under sacred property is included whatever belongs to a temple or to a palace, for the palace is also sacrosanct as the dwelling of the king, who is originally also a priest and who continues to be regarded as the representative of the deity even after the differentiation of his religious from his secular functions.

The palace is always adjacent to the temple, and indeed the two edifices are viewed under the same aspect, the temple being the dwelling of the deity and the palace the temple of the deity's representative on earth. Taking temple or royal property, therefore, is sacrilege and he who is guilty of the act is put to death, as is also the one who receives such stolen property.

Such is the original law as it stands without qualification (§ 6-7). A later paragraph (§ 8) makes an exception in the case where the object is an ox, sheep, ass or pig that is a domesticated animal or a boat. A fine of thirty-fold the value is imposed, whereas if the'stolen animal or property is from a plebeian, the fine is only ten-fold, but if the thief have not the wherewithal to pay, that is if he does not or cannot pay the fine, he is put to death. Evidently there is here a concession to the milder spirit of a more advanced period which revolted against the forfeiture of life independently of what was stolen.

The old rigid law is retained in theory, but the practice is modified apparently on the principle that it is not sacrilege, but merely a particularly grievous offence to take from a temple or palace something that is not directly connected with the cult, the specification of a domestic animal or a boat being introduced as an illustration of the conditions under which the milder punishment of a heavy fine is substituted for capital punishment.

A principle which, dating apparently from an early stage and quite consistently carried out, is the aggravation of a crime through the proof of intentional fraud. For this reason the receiver of stolen property, if aware of the theft, suffers the severest punishment, and from this point of view the one who aids a slave to escape, whether from the palace or the city gate, or harbors a fugitive slave, is put to death (§ 15, 16, 19) a cruel law indeed from the modern point of view, but intelligible on the basis of the Babylonian principle that connivance in depriving a man of his legal property is more reprehensible than direct theft.

The severity of the code is, however, one of its less favorable features which points to the retention in it of enactments reflecting a crude state of civilization, for the progress of law is towards mildness and indulgence, whereas the further back we go the greater the severity of punishment, approaching often to merciless cruelty.

The number of instances in which death is prescribed as a punishment may serve as a test for this aspect of the code. That man-stealing [1] and brigandage (14 and 22) should have been regarded as capital crimes is natural, but that a purchase made without witnesses or a formal contract should involve a death punishment (?), on the assumption that a claim made under such circumstances points to fraud has a meaning only from the Babylonian point of view, that fraud is established by the mere absence of a formal contract. The punishment no doubt rests on a provision that every purchase must be confirmed by a contract, but to extend the law beyond the establishment of the validity of a transaction indicates extreme crudity in its interpretation.

The primitive law of retaliation accounts for a large number of the instances in which death is set down as the punishment, as, for example, that in case of the collapse of a defective building, the architect is to be put to death if the owner is killed by the accident, and the architect's son if the son of the owner loses his life (§ 229-230), or that if through a blow inflicted by some one on a man's daughter, the latter dies, the daughter of the one who inflicted the injury should be put to death (§ 210). It is significant that these provisions occur within a group of statutes ( 195-225) all dealing with the application of the primitive lex talionis, just as we find traces of this law in the Pentateuehal codes. [2]

The one who destroys the eye of another shall lose his eye; if he breaks a man's bone, his bone shall be broken, and if he knocks out a man's tooth, one of his teeth shall be knocked out.

It is likewise the extension of the same principle which provides that a physician who performs an unsuccessful operation resulting in the loss of a patient's eye or in the patient's death should have his hands cut off, or that in case a veterinary operates on an ox or ass and the animal dies, one fourth of its value should be restored to the owner. The very extension of the principle while leading to crudities also paves the way for a juster valuation of damages.

It is still, a most absurd application of the principle which leads to the enactment that if a nurse to whom a child has been entrusted and who substitutes another child in place of the one so entrusted which has died on her hands, the woman is to have her breasts cut off so as to deprive her of the possibility of the repetition of the crime (§ 194), but on the other hand a more advanced stage is represented by the provisions for suitable compensation in the case of bodily injuries.

So immediately following the direct enunciation "of the lex talionis in regard to destroying a man's eye or breaking his bone (§ 196-197), we find the provision converting the underlying principle into a basis for adequate compensation. The fine for destroying the eye of a plebeian is one mina [3] of silver, whereas in case the injured party is a slave, only half of that sum is imposed.

Footnotes and references:

[1]:

The specific case instanced ( 14) is the case of a man stealing a minor, but no doubt the application is general.
 

[2]:

Hurt for hurt, eye for eye, tooth for tooth, etc., with additions and variations in the three principal codes, viz., Ex. 21, 24 (code of Covenant) ; Deut. 19, 21 (Deuteronomic code) ; Lev. 24, 20 (Holiness code).
 

[3]:

A mina (or mana) is 6O shekels. The actual silver value of a shekel is less than 50 cents in modern coinage, but is a standard coin in antiquity. Its purchasing value, fluctuating according to commercial activity, was much higher perhaps at times as much as five dollars in our days.
 

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