Part IV

This distinction of classes in fixing of fines and punishments is characteristic of the code throughout, and follows as a natural corollary from the principle of the lex talionis which thus reveals its hold even after the stage of literal interpretation had been passed. With class distinctions recognized in all walks of life, it was a logical conclusion to connect with the aim of bringing about a just proportion between punishment and crime which is the basic principle of the lex talionis a differentiation according to the rank of the injured party.

A free plebeian being of higher grade than the slave, and the nobleman above both, the illegality was regarded as of a higher or a lower severity corresponding to the difference in ranks. In other words, while according to modern ideas a crime is viewed independently of the one by whom or on whom it is committed, ancient law as long as it remained under the influence of the lex talionis could not dissociate the act either from the actor or from the one who suffered through it.

So if a man injures another, the fine varies according as one strikes a person of superior rank, in which case public whipping sixty strokes with a leather thong is prescribed ( 202), whereas if one strikes a man of one's own rank, a fine of one mina of silver is imposed, though in the case of any plebeian striking a plebeian, the fine is only ten shekels of silver, that is one-sixth of a mina ( 204).

A slave, on the other hand, is more severely treated, his ear being cut off in case he strikes a man's son ( 205), as an adequate punishment for the assault; and we may conjecture that in this case the abandonment of the more literal application of the lex talionis, which would have suggested that the slave's hand be cut off, was due to loss in the value of the slave as property through such a punishment. A further advance in the direction of more humanitarian justice is indicated in the provisions for the case that a bodily injury is inflicted without intent.

According to the original spirit of the lex talionis this element does not enter, but Hammurapi's code stipulates that if a man can swear, "I did not strike with intent" in a quarrel with another, he is let off with the payment of the doctor's bill; and in case the victim dies of the blow, a fine of half a mina is imposed if the one who has inflicted the fatal injury belongs to the general class of inhabitants, whereas a plebeian pays only one-third of a mina. A miscarriage as a result of an unintentional injury to a man's daughter entails a fine of ten shekels, for the daughter of a plebeian only five shekels, and for the daughter of a slave only two shekels.

If the woman dies, in case she is the daughter of a plebeian, the fine is one-half of a mina of silver, for a female slave one-third of a mina of silver, whereas curiously enough the old law of lex talionis is retained in case the victim is the daughter of a free citizen, the code providing ( 210) for such a contingency the death of the daughter of the man who has struck the blow which ended fatally.

The lex talionis as the basis of adjustment between a crime or an injury and the punishment or fine leads by a natural evolution also to an equitable compensation for benefits conferred as well. Under this aspect, the physician's fee in ease of a cure through an operation or otherwise is regulated with regard to the value of the cure. A successful operation which saves a man's eye is valued at ten shekels in the case of an ordinary citizen.

A plebeian pays only five shekels, and the owner of a slave two shekels to the physician who has saved a slave's eye. For setting a broken bone or for an ordinary physical trouble, the fee is five shekels if the patient is a free citizen, three shekels for the plebeian who is throughout the code a somewhat privileged personage, obliged to pay less, whether a fine or a fee, and for the slave two shekels paid for as usual by the master.

The Code in the same way endeavors to regulate the cost of building a house, the hire of boats and even of animals. That such regulations are all viewed under the general aspect of the lex talionis in its double extension to all kinds of injuries on the one hand, and to benefits on the other, is shown by the juxtaposition of the building and hiring stipulations with losses incident to such agreements, whether through neglect or through unf orseen causes.

In fact the principle of compensation involved in the primitive lex talionis its underlying justification as it were becomes the starting point for the further development of justice in the regulation of dealings of man with his fellow. Responsibility for damage or loss of cargo on a boat hired to carry goods to any place rests on the boatman, if carelessness on his part can be proved. The cargo must be replaced as well as the boat; and in case the boatman succeeds in refloating the original boat, a compensation to the extent of one-half of the value of the boat is to be given the owner, to make good the diminished value of the boat by reason of the accident ( 237-238).

In the case of a collision between two boats resulting in the sinking of one, it is assumed that the ship moving up stream is responsible as the one which could more easily get out of the way. The owner of the boat lost in going down stream must make a sworn declaration of his loss, which as well as the boat or its value must be made good by the owner of the other boat ( 240).

The hire of oxen, of field-laborers and of herdsmen is similarly regulated by law ( 242-243; 257-258), and the same distinction made between accidents due to neglect and such as could not have been prevented Thus the one who hires an ox or an ass cannot be held responsible if the animal is killed by a lion. The owner in that case must bear the loss ( 244), but if the death of the hired animal is caused by neglect or abuse, its value must be restored; and the further attempt is made to regulate the extent of loss through an injury to the animal.

The loss of an eye involves a fine of one-half of the value of the ox, the breaking of a horn, or the cutting of the tail or injury to its flesh through the yoke, one-fourth of its value, but if the injury is such as to ruin the usefulness of the animal, as, for example, if its foot is crushed or it is hamstrung, then an ox of equal value is to be restored to the owner ( 246-248).

If an ox gores a man as it goes through the street, this is regarded as an unavoidable accident and entails no penalty ( 250), but if the ox has been known to be vicious, and the owner has been warned and its horns have not been tied up, a penalty of half a mina of silver is imposed if the ox fatally gores a man of the ordinary class, and if it be a slave one-third of a mina (251-252).