Page:American Journal of Sociology Volume 9.djvu/780

 750 THE AMERICAN JOURNAL OF SOCIOLOGY

so much as a spontaneous usage as a suggestion from the Old Testament. "When crude retaliation," says Brunner, "appears in a mediaeval code, the influence of the Bible may always be suspected." 1 The law of retaliation has curious extensions. The severe penalty inflicted upon an unsuccessful surgeon (Ham., 218) has been carried by the Chinese to a more cruelly logical conclusion, for the Mongolian doctor loses, not his fingers, but his head. 2 But in most of its provisions the code of Hammurabi is beyond the stage of the talio. The responsibility of the ox-owner for the injuries his beast might inflict (Ham., 250, 251) is well in advance of the early biblical principle by which the ox was naively stoned to death as a pseudo-criminal. 3 The rule is practically identical with modern law, which holds the owner of an animal responsible for the injury it does only when he can be proved to have known of its dangerous disposition, or to have neglected all reasonable or legally prescribed precautions.

Allusion has already been made to the significance of the dowry as a factor in the Babylonian family life. The provision that in divorcing a barren wife the husband must return to her the dowry and bridal present (Ham., 138) was also enforced in Rome at the close of the republic, as well as in Athens of an earlier day. The Greek wife was usually protected by a mort- gage on her husband's property. 4 The Babylonian was not the only husband who could put away a gadding, negligent, and froward wife. By the Laws of Manu a wife "who drinks spiritu- ous liquors, is of bad conduct, rebellious, diseased, mischievous, or wasteful may at any time be superseded by another wife." 5 But, on the other hand, the Babylonian wife was by no means helpless. If her husband was negligent or cruel, she might take her dowry and return to her father (Ham., 142) a privilege

1 Quoted by POLLOCK AND MAITLAND, op. cit., Vol. II, p. 489. "BREEDE, "Penal Code of China," Green Bag, Vol. XIV, p. 538.

3 For an interesting extension of this idea to inanimate objects, e. g., a sword, and for reported trials of animals for crimes, vide POLLOCK AND MAITLAND, op. cit., Vol. II, pp. 472, 473.

4 WESTERMARCK, op. cit., p. 412. sLaws of Manu, chap, ix, p. 80.