LEGISLATIONS OF ISRAEL AND BABYLONIA. 



153 



misapprehension induced by another's fraud. For example, the 

 agent who, while on a journey, is robbed by an enemy, is 

 recognised as innocent (§ 1.03), and so is the trader who has 

 been deceived into wronging the owner of a slave (§ 227). 

 They go further and recognise that the owner of a vicious ox 

 should only be punished if he had reason to know that the 

 animal was vicious and had failed to take proper precautions 

 to prevent its inflicting injury (§§ 250-2). They even realise 

 that in a tight a blow may be given that has unexpectedly grave 

 results (§§ 206-208), and that in such a case the mental element 

 must be taken into consideration in determining what the legal 

 consequences of the action should be. Once more, in estimating 

 a wife's conduct they consider her character as evidenced by her 

 past, and also her husband's treatment of her 42 ff.). But 

 further than this they do not go. They never realise in its 

 entirety the maxim, non est reus nisi mens sit rea. Indeed they 

 often fall immeasurably below it. The builder who does his 

 work carelessly or unskilfully or dishonestly, forfeits his life if 

 the house kills the owner (§ 229), though he certainly had no 

 murderous intent. Still worse, if the collapse of the building 

 results in the death of the owner's son, the innocent son of the 

 builder is to be killed. In his case at any rate both mental 

 element and overt act are lacking. Xo doubt much must be 

 attributed to the primitive condition of legal reflection in 

 Hammurabi's Babylonia. Yet these provisions are more 

 barbarously unjust than any known legal rule of any primitive 

 people. And so we come to the last branch of the Babylonian 

 section of our enquiry with the question, What has the code 

 to tell us of the character and ideals either of its framers or of 

 the nation for which it was intended 1 "We have seen that it is 

 the work of men whose intellectual powers are in some respects 

 worthy of admiration : can the same be said of their legislative 

 ideas ? 



The answer, however reluctantly given, must in the main be 

 unfavourable. 



In the first place the code is on the whole of a savage t^'pe. 

 It is true that the comparative material fuUy explains the origin 

 of the barbarous penalties that we have encountered ; but it 

 also does much to increase our wonder at finding that penalties 

 so cruel should have been retained in such numbers at so 

 advanced a stage of material civilisation. The extreme limit 

 is reached when death is inflicted by way of talion not on the 

 person actually responsible for the otfence it is sought to 

 prevent, but on his innocent child. Manv legislators have 



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