LEGISLATIONS OF ISRAEL AND BABYLONIA. 



143 



theory exemplified simultaneously. But more frequently a legal 

 rule illustrates one or other branch. Thus we find Hammuraln 

 ordaining, e.g., that the hands of a man who strikes his father 

 shall be cut oft' (§ 195), while the man who comes to extinguish a 

 fire and " lifts up his eyes to the property of the owner of the 

 house and takes the property of the owner of the house " is to be 

 " thrown into that fire " (§ 25). 



Other provisions that show the influence of early ideas are 

 those relating to theft. In treating of the ordinary procedure 

 in early societies all over the world Dr. Post writes as follows : — 

 ' He in whose possession the stolen article is found is prima 

 facie presumed to be the tliief. But if he pleads that he had 

 bought the article or had acquired it by some other honest means 

 from another, he must name that other person and conduct the 

 owner of the stolen property to him. The person so vouched 

 can in turn name another person whom he vouches as his 

 predecessor in title, and so the enquiry proceeds until it ends 

 with somebody who cannot vouch a predecessor in title. This 

 person is then regarded as the thief. This procedure shows 

 many variations in detail."* Similarly in Narada we read tliat 

 " where stolen goods are found with a man, he may be pre- 

 sumed to be the thief."t It will be observed that this outline 

 is reproduced in §§ 9 ft", of the code. 



With regard to the punishments for theft tlie Babylonian 

 system conforms here also to well-known types. The early form 

 of remedial procedure in cases of theft is private violence. 

 When society interposes to prevent self-redress or blood feuds, 

 it endeavours to bribe the aggrieved party, not to take the law 

 into his own hands. " In the infancy of society," whites Mr. 

 Post, " it is an important object to the legislator to induce 

 an injured person to have recourse to the public tribunals 

 instead of righting liimself, that is to say, constituting himself 

 both lawgiver and judge. That such was really the motive of 

 the legislator we have historic evidence in the declaration of 

 Eotharis, ruler of the Langobards, a.d. 643. He gives the 

 relatives of the slain their election between the primitive , 

 vengeance for blood (feud or vendetta), and a composition or 

 pecuniary fine (wergeld or poena) to be recovered by action 

 before the public tribunals. He says that he fixes a high fine in 

 order to induce plaintiffs to forego their right of feud ; and 



* Gnnidriss, ii, p. 586. 



t xiv, 18, cp. vii, 4 and Manu, viii, 201. 



