LEGISLATIONS OF ISRAEL AND BABYLONIA. 



141 



cannot be said of tlie comparative method. A few examples 

 will show how this elucidates the provisions of the legislation 

 and illuminates their Vorgcschichte. 



" There is no system of recorded law," wrote Sir Henry 

 Maine, " literally from China to Peru, which, when it first 

 emerges into notice, is not seen to be entangled with religious 

 ritual and observance."* The code of Hammurabi to a very 

 great extent belongs to a later stage of development than that 

 contemplated in this dictum ; and this by itself is sufficient to 

 mark it as a fairly mature system, yet slight remains of the 

 earlier state of affairs may be traced in provisions for ordeals 

 (§§ 2, 132), and oaths as methods of proof (§§ 20, 23, 103, 120, 

 206, etc.). In such cases this survival from ancient ideas has, 

 however, been worked into the system to fulfil a definite 

 purpose. There are pai'allels all the world over, but perhaps 

 the best short explanation that can be quoted is to be found in 

 a few paragraphs of the late Indian law-book l^woww^^ Xdr ad a. 

 Here the principle underlying the supernatural methods of trial 

 and the object of their retention in relatively late times are 

 very clearly brought out : — 



" 28. Proof is said to be of two kinds, human and divine. 

 Human proof consists of documentary and oral evidence. By 

 divine proof is meant the ordeal by balance and the other 

 (modes of divine test). 29. AVhere a transaction has taken 

 place by day, in a village or town, or in the presence of 

 witnesses, divine test is not applicable. 30. Divine test is 

 applicable (where the transaction has taken place) in a solitary 

 forest, at night, or in the interior of a house, and in cases of 

 violence, or of denial of a deposit."! On paragraph 29 

 Asahaya, a standard Indian commentator, remarks, " In the 

 case of all those transactions which take place during daytime, 

 eye and ear-witnesses are present. Documentary evidence, 

 likewise, is generally available in such cases. Therefore, divine 

 proof should not be resorted to. AVhere a transaction is known 

 to have taken place in the presence of witnesses, divine proof 

 is also not applicable." Similarly on paragraph 30 he writes, 

 " In all the places and occasions mentioned in this paragraph 

 human proof is not applicable, wherefore divine test has to be 

 resorted to." 



The sections of the Hammurabi code conform to these 

 principles. 



* Early Lav: and Custom^ p. 75. 

 t Xdrada^ Introduction, ii, 28-30. 



