Volume 3, Part 1, Slice 1 Part 29 (1/2)
But vestals, hierodules, certain palace officials and slaves had no rights over their children and could raise no obstacle. Foundlings and illegitimate children had no parents to object. If the adopted child discovered his true parents and wanted to return to them, his eye or tongue was torn out. An adopted child was a full heir, the contract might even a.s.sign him the position of eldest son. Usually he was residuary legatee.
All legitimate children shared equally in the father's estate at his death, reservation being made of a bride-price for an unmarried son, dower for a daughter or property deeded to favourite children by the father. There was no birthright attaching to the position of eldest son, but he usually acted as executor and after considering what each had already received equalized the shares. He even made grants in excess to the others from his own share.
When there were two mothers, the two families shared equally in the father's estate until later times when the first family took two-thirds.
Daughters, in the absence of sons, had sons' rights. Children also shared their own mother's property, but had no share in that of a stepmother.
A father could disinherit a son in early times without restriction, but the Code insisted upon judicial consent and that only for repeated unfilial conduct. In early times the son who denied his father had his front hair shorn, a slave-mark put on him, and [v.03 p.0120] could be sold as a slave; while if he denied his mother he had his front hair shorn, was driven round the city as an example and expelled his home, but not degraded to slavery.
Adultery was punished with the death of both parties by drowning, but if the husband was willing to pardon his wife, the king might intervene to pardon the paramour. For incest with his own mother, both were burned to death; with a stepmother, the man was disinherited; with a daughter, the man was exiled; with a daughter-in-law, he was drowned; with a son's betrothed, he was fined. A wife who for her lover's sake procured her husband's death was gibbeted. A betrothed girl, seduced by her prospective father-in-law, took her dowry and returned to her family, and was free to marry as she chose.
In the criminal law the ruling principle was the _lex talionis_. Eye for eye, tooth for tooth, limb for limb was the penalty for a.s.sault upon an _amelu_. A sort of symbolic retaliation was the punishment of the offending member, seen in the cutting off the hand that struck a father or stole a trust; in cutting off the breast of a wet-nurse who subst.i.tuted a changeling for the child entrusted to her; in the loss of the tongue that denied father or mother (in the Elamite contracts the same penalty was inflicted for perjury); in the loss of the eye that pried into forbidden secrets. The loss of the surgeon's hand that caused loss of life or limb; or the brander's hand that obliterated a slave's identification mark, are very similar. The slave, who struck a freeman or denied his master, lost an ear, the organ of hearing and symbol of obedience. To bring another into danger of death by false accusation was punished by death. To cause loss of liberty or property by false witness was punished by the penalty the perjurer sought to bring upon another.
The death penalty was freely awarded for theft and other crimes regarded as coming under that head; for theft involving entrance of palace or temple treasury, for illegal purchase from minor or slave, for selling stolen goods or receiving the same, for common theft in the open (in default of multiple restoration) or receiving the same, for false claim to goods, for kidnapping, for a.s.sisting or harbouring fugitive slaves, for detaining or appropriating same, for brigandage, for fraudulent sale of drink, for disorderly conduct of tavern, for delegation of personal service, for misappropriating the levy, for oppression of feudal holders, for causing death of a householder by bad building. The manner of death is not specified in these cases. This death penalty was also fixed for such conduct as placed another in danger of death. A specified form of death penalty occurs in the following cases: gibbeting (on the spot where crime was committed) for burglary, later also for encroaching on the king's highway, for getting a slave-brand obliterated, for procuring husband's death; burning for incest with own mother, for vestal entering or opening tavern, for theft at fire (on the spot); drowning for adultery, rape of betrothed maiden, bigamy, bad conduct as wife, seduction of daughter-in-law.
A curious extension of the _talio_ is the death of creditor's son for his father's having caused the death of debtor's son as mancipium; of builder's son for his father's causing the death of house-owner's son by building the house badly; the death of a man's daughter because her father caused the death of another man's daughter.
The contracts naturally do not concern such criminal cases as the above, as a rule, but marriage contracts do specify death by strangling, drowning, precipitation from a tower or pinnacle of the temple or by the iron sword for a wife's repudiation of her husband. We are quite without evidence as to the executive in all these cases.
Exile was inflicted for incest with a daughter; disinheritance for incest with a stepmother or for repeated unfilial conduct. Sixty strokes of an ox-hide scourge were awarded for a brutal a.s.sault on a superior, both being _amelu_. Branding (perhaps the equivalent of degradation to slavery) was the penalty for slander of a married woman or vestal. Deprivation of office in perpetuity fell upon the corrupt judge. Enslavement befell the extravagant wife and unfilial children. Imprisonment was common, but is not recognized by the Code.
The commonest of all penalties was a fine. This is awarded by the Code for corporal injuries to a _muskinu_ or slave (paid to his master); for damages done to property, for breach of contract. The restoration of goods appropriated, illegally bought, or damaged by neglect, was usually accompanied by a fine, giving it the form of multiple restoration. This might be double, treble, fourfold, fivefold, sixfold, tenfold, twelvefold, even thirtyfold, according to the enormity of the offence.
The Code recognized the importance of intention. A man who killed another in a quarrel must swear he did not do so intentionally, and was then only fined according to the rank of the deceased. The Code does not say what would be the penalty of murder, but death is so often awarded where death is caused that we can hardly doubt that the murderer was put to death. If the a.s.sault only led to injury and was unintentional, the a.s.sailant in a quarrel had to pay the doctor's fees. A brander, induced to remove a slave's identification mark, could swear to his ignorance and was free. The owner of an ox which gored a man on the street was only responsible for damages if the ox was known by him to be vicious, even if it caused death.
If the mancipium died a natural death under the creditor's hand, the creditor was scot free. In ordinary cases responsibility was not demanded for accident or for more than proper care. Poverty excused bigamy on the part of a deserted wife.
On the other hand carelessness and neglect were severely punished, as in the case of the unskilful physician, if it led to loss of life or limb his hands were cut off, a slave had to be replaced, the loss of his eye paid for to half his value; a veterinary surgeon who caused the death of an ox or a.s.s paid quarter value; a builder, whose careless workmans.h.i.+p caused death, lost his life or paid for it by the death of his child, replaced slave or goods, and in any case had to rebuild the house or make good any damages due to defective building and repair the defect as well. The boat-builder had to make good any defect of construction or damage due to it for a year's warranty.
Throughout the Code respect is paid to status.
Suspicion was not enough. The criminal must be taken in the act, _e.g._ the adulterer, ravisher, &c. A man could not be convicted of theft unless the goods were found in his possession.
In the case of a lawsuit the plaintiff preferred his own plea. There is no trace of professional advocates, but the plea had to be in writing and the notary doubtless a.s.sisted in the drafting of it. The judge saw the plea, called the other parties before him and sent for the witnesses. If these were not at hand he might adjourn the case for their production, specifying a time up to six months. Guarantees might be entered into to produce the witnesses on a fixed day. The more important cases, especially those involving life and death, were tried by a bench of judges. With the judges were a.s.sociated a body of elders, who shared in the decision, but whose exact function is not yet clear. Agreements, declarations and non-contentious cases are usually witnessed by one judge and twelve elders.
Parties and witnesses were put on oath. The penalty for false witness was usually that which would have been awarded the convicted criminal. In matters beyond the knowledge of men, as the guilt or innocence of an alleged wizard or a suspected wife, the ordeal by water was used. The accused jumped into the sacred river, and the innocent swam while the guilty drowned. The accused could clear himself by oath where his own knowledge was alone available. The plaintiff could swear to his loss by brigands, as to goods claimed, the price paid for a slave purchased abroad or the sum due to him. But great stress was laid on the production of written evidence. It was a serious thing to lose a doc.u.ment. The judges might be satisfied of its existence and terms by the evidence of the witnesses to it, and then issue an order that whenever found it should be given up. Contracts annulled were ordered to be broken. The court might go a journey to view the property and even take with them the sacred symbols on which oath was made.
The decision given was embodied in writing, sealed and witnessed by the judges, the elders, witnesses and a scribe. Women might act in all these capacities. The parties swore an [v.03 p.0121] oath, embodied in the doc.u.ment, to observe its stipulations. Each took a copy and one was held by the scribe to be stored in the archives.
Appeal to the king was allowed and is well attested. The judges at Babylon seem to have formed a superior court to those of provincial towns, but a defendant might elect to answer the charge before the local court and refuse to plead at Babylon.
Finally, it may be noted that many immoral acts, such as the use of false weights, lying, &c., which could not be brought into court, are severely denounced in the Omen Tablets as likely to bring the offender into ”the hand of G.o.d” as opposed to ”the hand of the king.”
BIBLIOGRAPHY.--Contracts in general: Oppert and Menant, _Doc.u.ments juridiques de l'a.s.syrie et de la Chaldee_ (Paris, 1877); J. Kohler and F. E. Peiser, _Aus dem babylonischen Rechtsleben_ (Leipzig, 1890 ff.); F. E. Peiser, _Babylonische Vertrage_ (Berlin, 1890), _Keilinschriftliche Actenstucke_ (Berlin, 1889); Br. Meissner, _Beitrage zur altbabylonischen Privatrecht_ (Leipzig, 1893); F. E. Peiser, ”Texte juristischen und geschaftlichen Inhalts,” vol. iv. of Schrader's _Keilinschriftliche Bibliothek_ (Berlin, 1896); C. H. W. Johns, _a.s.syrian Deeds and Doc.u.ments relating to the Transfer of Property_ (3 vols., Cambridge, 1898); H. Radau, _Early Babylonian History_ (New York, 1900); C. H. W. Johns, _Babylonian and a.s.syrian Laws, Contracts and Letters_ (Edinburgh, 1904). For editions of texts and the innumerable articles in scientific journals see the bibliographies and references in the above works. ”The Code of Hammurabi,”
_Editio princeps_, by V. Scheil in tome iv. of the _Textes Elamites-Semitiques_ of the _Memoires de la delegation en Perse_ (Paris, 1902); H. Winckler, ”Die Gesetze Hammurabis Konigs von Babylon um 2250 v.
Chr.” _Der alte Orient_, iv. Jahrgang, Heft 4; D. H. Muller, _Die Gesetze Hammurabis_ (Vienna, 1903); J. Kohler and F. E. Peiser, _Hammurabis Gesetz_ (Leipzig, 1904); R. F. Harper, _The Code of Hammurabi, King of Babylon about 2250 B.C._ (Chicago, 1904); S. A. Cook, _The Laws of Moses and the Code of Hammurabi_ (London, 1903).
(C. H. W. J.)
[1] For the transliteration of Babylonian and a.s.syrian names generally, see BABYLONIA AND a.s.sYRIA, section ix., _Proper Names_.
BACAU, the capital of the department of Bacau, Rumania; situated among the foothills of the Carpathian Mountains, and on the river Bistritza, which enters the river Sereth 5 m. S. Pop. (1900) 16,187, including 7850 Jews.
Although of modern growth, Bacau is one of the chief commercial centres in Moldavia, possessing many large timber yards. It is on the main railway from Czernovitz, in Bukovina, to Galatz; and on two branch lines, one of which enters Transylvania through the Ghimesh Pa.s.s, while both give access to the salt mines, petroleum wells and forests of the Carpathians.
BACCARAT, a gambling card-game (origin of name unknown), supposed to have been introduced into France from Italy during the reign of Charles VIII.
There are two accepted varieties of the game--_baccarat chemin de fer_ (railway) and _baccarat banque_ (or _a deux tableaux_). In _baccarat chemin de fer_ six full packs of cards are used. These are shuffled by a croupier and then by any of the players who wish to do so. From three to eleven persons may play. Counters are generally used and are sold by the banker who afterwards redeems them. The croupier takes a number of cards from the top of the pack and pa.s.ses them to the player on his right (sometimes left) who becomes banker, a position which he holds until he loses, when the deal pa.s.ses to the player next in order. The other players are called _punters_.