The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples / The Schweich Lectures

by C. H. W. Johns

The state of society revealed, and its laws, are most remarkable. The tribal system has disappeared. The city states with their local customs are being welded into a unity. There is still local government and district responsibility, but the king’s judges are over the local elders, and there is appeal to higher courts, ultimately to the king himself. The family is the unit, with great measure of family solidarity and complete indefeasible right over family estate, devolving its rights to individuals as they form new family units, but retaining rights of reversion amounting to a strict entail.

There is a settled population, engaged in agriculture and pastoral pursuits, yet with many industries in the hands of guilds of artisans, recruited by adoption and apprenticeship, but largely hereditary in families. There is a highly organized system of military service and the corvée or press-gang for public works, with a feudal tenure, alongside tenure on payment of tithes and temple dues, and the metayer system by which the landlord found cattle, agricultural implements and seed for culture of the fields. Estates bore permanent responsibilities which went with the land to furnish military service, produce, supplies, &c., to the state. Other estates were held of the king, on rent or tribute, the usual lot of conquered territory. There was a numerous and wealthy body of merchants who were also bankers or money-lenders and much controlled by the Code, especially in the interest of the poorer debtors. They were also afforded state protection and their canvassers carried trade far and wide to every quarter. There was a highly developed and rapid postal or messenger system, of which many beside the king availed themselves.

The land was full of populous towns with fixed areas of dependent villages, remnants of the old city states, now conterminous over the whole kingdom; counties we might call them, parishes and boroughs. There were still traces of borough law, but the Code was supreme and the king’s justice ran everywhere. Temples, mansions, farms, plantations, common pasture, feudal estates, existed alongside private ownership in land.

The state of society bears surprising likenesses to that of Europe in the Middle Ages.

The law itself is no less advanced. Justice has replaced vengeance. Self-help is restrained, if not suppressed; wrong must be redressed at law. There is full protection for the weak, the widows and orphans, as the lawgiver himself points out with pride. Women are placed in a position of freedom and independence of their husbands, such as they have only enjoyed in our land since the Married Women’s Property Acts. Education was at such a high pitch that Hammurabi assumes that every injured person would come and read for himself the laws that applied to his own case, or at least find a neighbour who could do so.

The nature of the legislation is no less surprising from a comparative point of view.

In many respects we find the most extraordinary medley of ancient and modern laws. To take but one or two examples. A belief in witchcraft is not avowed, but recognized as demanding regulation; while purgation of the charge is referred to ordeal by water, such as lingered on so long in Europe.

The extraordinary confidence in the power of the oath to secure truthful witness is remarkable; but has not died out of our law courts yet. The purgation by oath is in the Saxon form, and applies not only to things solely within the knowledge of the accused, as loss of entrusted goods, but also to manslaughter.

In connexion with feudal tenure we find precisely common-law dower, the right of a tenant in fee-simple or entail to the enjoyment for her life of a third of the undevised lands of her husband which he held in that possession. An attentive examination of the tenure of a Babylonian retainer of the king, who held land on military service, or other royal service including public works, subject to strict entail unless forfeited by failure to carry out commands, will reveal strange likenesses to the feudal system.

The Romans have usually been regarded as inventing the institution of the will, as Sir Henry Maine pointed out, which has played so great a part in modern society, but like the contract, we have it in the Code and contemporary practice in no merely rudimentary form. True that in the Code the only case considered is where the will operates within the family, but other cases seem to occur in practice. We find that a man can assign even land, garden, or house by a sealed and witnessed deed to a favourite child, and if so, when his estate is divided by his children at his death, they cannot claim it as part of the estate to be divided; the favoured child takes equal share with them in the estate left beside his own special legacy. The husband too could leave property to his wife, and she could devise it as she chose, but only to her children by him; not to her own family, nor children by a later husband. If a father vowed his daughter to religion, he could, by sealed and witnessed deed, give her specific freedom of testamentary disposition of what she received from her father as a marriage portion on taking her vows. She had a right to a marriage portion any way, which was in lieu of a share of her father’s estate. If she took it on marriage it was her portion for life, and was equal to what a son would take as a son’s share at her father’s death, but if she died childless it reverted to her family. On taking a vow, she would have the same portion as if married, but as she would then die childless, unless her father gave her power to dispose of it by will, her brothers or family would resume it.