LITMIR.BIZ

Скачать книгу

Settled forms of agriculture add a new body of law. Yet necessarily their laws show many characteristics inherited from a primitive culture, for men will long cherish their used and accustomed ways.

      The original form of government in the cities had been theocratic, following the common original development among Aryans and Semites, which originally lodged power in the priests and then passed the duty of leadership in war to kings and chiefs as a part of the discipline needed for conquering hordes. These Semites had passed far beyond the point of the polytheism of the Aryans. Each city had its own god, or in some instances a blend of more than one god, but the Semitic tendency was toward the one deity, although the Semites readily acknowledged that there were other gods presiding over other cities. Each city was ruled by a chief priest, and he gradually took on the proportions of a petty king but retained his character of a priest. This priest-king originally sat at the gate dispensing justice, as in other Semitic tribes like the Hebrews, hearing the complaints of suitors, adjusting their disputes, and laying down the law. But the Babylonians developed a trial court and an appellate court system.

      At last one great king, Sargon, about 2500 B.C. subdued the whole of Babylonia and ruled a united kingdom. Two hundred years later came the greatest of these Babylonian rulers. He founded the city of Babylon, which was to remain for over seventeen hundred years the great city of the world. He kept his governor in each city, but the prevailing god in Babylonia came to be a blend of the two gods Baal and Marduk, whose great temple rose in Babylon. This king was Hammurabi and he was, no doubt, a very enlightened ruler. The kings of Babylon, for the protection of their trade route, gradually extended their empire toward the west until the Babylonian Empire stretched to the Syrian coast. They conquered by means of better weapons and a better discipline.

      But these people were far from being entirely civilized. One curious survival is seen that must have been based upon some primitive belief that went back to a time when a wife, if she had no children, lost all right to share in the family estate, and lost her status as a wife. The reason for the legal custom was plain enough, and one result of this condition was that a wife could give her husband a slave or maidservant and claim the slave’s children as her own. This practice is clear enough in the story of Abraham, Sarai, and Hagar. A different result of the legal situation as to a wife without children, inherited from a time of an utter lack of any idea of chastity, was a practice of virgins at the temple of Babylon. It is said that the original practice was for the virgin to stand at the temple and sell her favor for money to any casual passer in order to give the money to the temple as an offering to the great goddess Ishtar. Thus her fertility was assured. This form of the practice seems to be doubtful. The established practice was for the virgin to pay the priest for his embrace, and this is probably the original religious ceremony. It seems far more likely as a primitive priestly belief gradually becoming an imposition. It was widespread among the Aryans, and in India to-day the practice as a regular proceeding from a remote past is for the bride to cohabit first with a Brahmin priest. In Europe either the Celts or the prior inhabitants had the same ceremonial. It came down even to medieval times as the jus primae noctis or le droit du seigneur, but among the Semitic Hebrews the practice never existed, for among them, as among us, a lack of chastity in the bride that has been concealed is sufficient ground for annulling a marriage. But it is likely that the chastity idea is not a primitive belief.

      A final invention that came out of these lands or Egypt was the discovery of the working of iron about 1400 B.C. It rapidly supplanted bronze, and as the Stone Age yielded to the Bronze, so the Bronze yielded to the Iron Age, and in the Iron Age with its modification of steel the world has always remained.

      Owing to a wide use of writing among the Babylonians they committed all transactions to writing. Their legal custom (which is called a statute of frauds among us) that required practically every transaction to be evidenced by a writing, and the preservation in the ruins of cities of clay plates on which are written deeds, bills of sale, bonds, receipts, accounts, drafts drawn at a distance, promissory notes, and many judicial decisions constituting the oldest law reports, give us much more certainty as to Babylonian law than we have regarding any other ancient system except the Roman.

      At the head of the government stands the king. He respects the rights of the different cities under his sway, but his kingdom is a city-state ruling other cities, as was the wide sway of Athens, of Rome, of Florence, of Milan, or of Venice in later ages. The king does not profess to be a lawgiver or a legislator, but he has the custody of the laws and he assumes the duty of saying what they are; and for the first time it appears that the state has assumed the duty of doing justice to its citizens. This point had slowly been reached through the ages and was a further development of the instinct, now a reasoned process, of protecting the social state. The laws are delivered to the king as divine by the god of the city, and the oldest collection of laws in existence is the so-called code of Hammurabi. It dates from between 2250 and 2000 B.C., and the older date is probably nearer the true time. These laws were first discovered from their inscription upon a diorite stone, but other older copies in clay have remained. This is the origin of the practice of the laws of various races being inscribed on stone. But in every instance such laws are merely the old, settled customs reduced to writing.

      At the head of the stone is the figure of King Hammurabi receiving the laws from the seated figure of the god. The laws open with Hammurabi’s words: “Law and justice I established in the land, I made happy the human race in those days.” Thus early we get a picture of a great king who felt that his highest claim was that he made his people happy. The first part of the laws has been erased by some subsequent king, but the far greater part and all the important part of the laws inscribed remains. This code can be supplemented by a vast number of clay documents of various kinds mentioned above.

      As time passed on, the Babylonian kingdom suffered many reverses. Gradually higher up on the rivers arose the state of Assyria with its god Ashur. The Assyrians had the same system of laws, generally speaking, and they had received from the Babylonians the art of writing documents. By this time a language called Aramaic and coming from Syria became widely diffused through all of Mesopotamia and many of the Assyrian documents are in this language, which seems to have been used indiscriminately with the Assyrian tongue. The Aramaic was afterwards to become the language of the Hebrews. In process of time the Assyrians absorbed much of the civilization of Babylon, but they were never the talented race that had made the first great civilization. As time went on the Assyrians, through their better disciplined army of bowmen—another instance of a better weapon and better discipline—became the conquerors of the world from 900 B.C. They disputed the control of the East with the Egyptians and after the great Egyptian conquerors overran the territory reaching from Egypt as far as Mesopotamia, the Assyrians conquered the Egyptians and ruled all of western Asia and Asia Minor in one great empire. A single people in their mountain fastnesses repelled the Assyrian conquest. They were a part of the Hebrews, although the greater part of Palestine passed to the Assyrian rule.

      The Assyrian Empire exhausted itself by its continuous war and another Semitic race, the Chaldeans, resuscitated the great empire of Babylon. They finally conquered even the remnant of the Jews, destroyed Jerusalem and transported a large part of the population to Babylon, where it remained during the Captivity until the Babylonian Empire was finally destroyed by Cyrus, an Aryan conqueror from the uplands of Persia. But the laws of Hammurabi endured for thousands of years through all these changes; and even in after ages when Seleucia was the capital of the Seleucid successors of Alexander of Macedon, and still later when Bagdad was the city of the Caliphs, the successors of Mahomet, Omar, Othman, and Ali, the same laws continued to govern a fairly flourishing land. It was reserved for the Turk to turn Mesopotamia into a desert, but perhaps under another rule Babylonia may regain something of her ancient fertility.

      As will later appear, many of these Babylonian laws, especially the commercial laws, passed to Palestine and Syria and to Asia Minor and its Greek cities, then to Greece itself and formed the basis of the commercial code at Athens. From Athens and Rhodes the same laws passed to Rome, and from Rome were diffused through continental Europe, and they exist to-day. One point to note is that the law among the Semites, being the expression of divine and errorless wisdom, must necessarily be unchangeable. The only way in which the law could be ameliorated was by a delivery of new law from the god to the priests or to the king. The connection between the law and

Скачать книгу