154 HAKOLD M. WIENER^ M.A., LL.B.^ ON THE 



punished the innocent with the guilty, or the innocent in 

 mistake for the guilty ; it was reserved for the Babylonian or 

 those from whom they may have derived these rules to under- 

 take knowingly and of set intent to punish the innocent in lieu 

 of the guilty. No doubt the punishment was usually or always 

 commuted. Not all offenders can have had children on whom 

 could be inflicted the penalties prescribed by " the judgments 

 of righteousness which Hammurabi the mighty king confirmed 

 and caused the land to take a sure guidance and a gracious 

 rule." Nevertheless, the sections remain on record to show the 

 ideas of justice that were prevalent in ancient Babylonia and 

 to illustrate the character of the people And this savagery 

 reappears in one penalty after another. Nowhere is the 

 operation of the principle of talion limited to any degree. 



Secondly, for good or for evil, the protection of property is 

 the paramount object of the code to the exclusion of almost all 

 other ideals. To some extent, this is inevitable, and not at all 

 remarkable. Every legal system designed for a people that has 

 attained to some degree of economic maturity must necessarily 

 be concerned with that which constitutes the main subject 

 matter of their daily occupations. But in Hammurabi's code the 

 interest in property leads to some regrettable principles. The 

 penalties for theft are, in some cases, altogether excessive, as may 

 be seen by comparison with the rules of the Eomans — a people 

 who were certainly not conspicuous for gentleness. When the 

 Eomans adopted manifold restitution their maximum penalty 

 was fourfold. Hammurabi runs up to a thirtyfold payment. 

 On the other hand, he recognises the duty of the government to 

 secure public safety. In the prologue to the code he boasts of 

 himself as "the wise, the active one, who has captured the 

 robbers' hiding-places, sheltered the people of Malka in (their) 

 misfortune, caused their seats to be founded in abundance," and 

 to his credit be it said that his ideas of the duty of a govern- 

 ment in this respect found legislative expression in §§ 23 ff., 

 which provide that where a man is robbed by a brigand, " the city 

 and governor in whose land and district the brigandage took 

 place shall render back to him " compensation if the brigand has 

 not been caught. A similar view is found in India.* 



Moreover, in two instances, other considerations are allowed 

 to modify the claims of property : the peasant whose power of 

 payment is destroyed by natural misfortunes enjoys the benefit 



^ See Gautama, x, 40-47 ; Vishnu, iii, 66-67. 



