144 



HAROLD M. WJENEK, LL.B., ON THE 



implies that he would gladly have abolished the right of feud or 

 private war, but felt that it was too deeply rooted in the habits 

 of his tribe to be extirpated by legislation.* 



It is probably in the light of sucli ideas as these that we 

 ought to contrast the threefold restitution imposed by § 106 on 

 the agent who takes his principal's money with the tenfold 

 restitution that is to be exacted from the dishonest shepherd by 

 § 265. Probably the rule that concerns the shepherds had its 

 first origin in a far earlier and less orderly state of society than 

 that which was called upon to decide on pecuniary transactions 

 involving the relationship of principal and agent. On the other 

 hand it must be noted that this influence alone may be insuffi- 

 cient to account for all the penalties in cases of theft and the 

 allied subjects. It explains the severity of the punishments for 

 theft and many of the penalties involving manifold restitution, 

 but when we read in § 107 that in the converse case the dis- 

 honest principal is to pay not a threefold but a sixfold penalty 

 to his agent, we seem to see traces of a moral judgment on the 

 relative heinousness of offences by principals against agents and 

 agents against principals. It must however be noted that this 

 is a question of correct translation. 



In another department of law the code exhibits the influence 

 of early ideas greatly weakened. The imtria potestas, the absolute 

 power of the head of a family over his children, has been greatly 

 lessened and reduced by the time of Hammurabi. Yet there 

 are sections dealing with " cutting off from sonship " (a phrase 

 as to the meaning of which it would be ujiwise to hazard a guess 

 without knowledge of the original) (§§ 168 ff.) and with the 

 l)enalties for undutiful sons (§§ 192, 193, 195). There is 

 moreover a section (§ 7) enacting that "if a man has bought 

 from the hand of a man's son, or of a man's slave, without 

 witness or power of attorney, or has received the same on 

 deposit, that man has acted the thief, he shall be put to death." 

 The proprietary restrictions of the Eoman Jlhus familias iv, 

 jMestatc are at once recalled by this section, though it must be 

 confessed that this may only be due to the translation. The 

 following passages from Narada may, however, be quoted : 

 In the same way, the transactions of a slave are declared 

 invalid, unless they have been sanctioned by his master. A 

 slave is not his own master. If a son has transacted any business 

 without authorisation from his father, it is also declared an 



* On Gains, iii, 189 flF. 



