Page:American Journal of Sociology Volume 9.djvu/770

 744 THE AMERICAN JOURNAL OF SOCIOLOGY

In the realm of personal injuries between equals the law of retaliation held almost complete sway, while the principle of compensation took the place of the lex talionis when one of higher rank injured a social inferior (195-214). The son whose fingers were cut off for striking his father (195), and the surgeon who suffered the same mutilation (218) for a fatal operation, were both victims of the retaliatory idea. Signifi- cantly enough, the code contains no hint of the group-feud or blood-guiltiness. That primitive stage of family or clan revenge had been left behind, and the idea of individual responsibility had clearly emerged. That law which decreed the death of a son or a daughter whose father by carelessness or design had caused the death of another's child (116, 210, 230) was obviously based upon individualized retaliation, not upon family feud. 1 The talio was also extended in an interesting way to other than physical injuries. The false witness in a capital case had to undergo the penalty he had tried to fix upon another ( 3), or in a case involving property he had to suffer the loss which he sought to bring upon his adversary (4). Again, he who failed to bring witnesses to prove his assertions in a trial bore the penalty imposed in the case (13). The dishonest or dis- credited judge was compelled to pay twelve-fold the amount involved in the case, besides being deposed from his seat of judgment (5). The principal exception to settlements by retaliation or fine was the appeal to ordeal, which appears only twice in the code. In both cases the trial is by water, once for testing the charge of sorcery or witchcraft ( 2), and again when the slandered wife must establish her innocence (132).

The Babylonian family was of the patriarchal type, in which the status of woman had been elevated along with the institution of the dowry and the recognition of limited property rights. The authority and rule of the father, while sufficiently absolute, were modified in many respects by the code of the state. In matters of divorce and separation the rights of wife and children were recognized and in a large measure protected. In a marriage

1 KOHLER, however, regards the three cases in which son or daughter is sacrificed as "bedeutende Reste geschlechterschaftlichen Strafrechts" ("Die Quellen des Strafrechts und Hummurabi," University Record (Chicago), March, 1904, p. 373).