LITMIR.BIZ

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of what is called the similiter, where the one party puts himself upon the country, that is to say a jury, and the other party pleads that he doth the like. This is, in fact, an agreement to submit to a jury trial. All men know of the contracts among us to submit disputes arising under contracts or under wills to some kind of arbitration; but the conception of the jurisdiction of courts is so changed among us, that no agreement to arbitrate can oust the compulsory jurisdiction of courts.

      All the different transactions of sale, lease, barter, gift, dedication, deposit, loan, and pledge were matters of contract. These legal transactions have never changed their character. The promissory note for money loaned took the form of a bond to pay. Lands or goods were delivered by means of the symbolical delivery of a staff or key, as in medieval English law of livery of seisin. The agreement to pay the purchase money was sometimes in the deed and sometimes put in the form of a bond. The seller sold the goods on the basis of caveat emptor. The correctness of this rule was debated in Roman law, but it was firmly imbedded in the common law of England. It means that the seller does not warrant the goods unless he agrees to warrant.

      If a man bought or received goods on deposit from a minor or a slave without power of attorney, he must produce the seller and the bill of sale or the witnesses, or he died as a thief. A man was required to give up stolen property, but he had a five-fold remedy against one who had sold him stolen property. The purchase of goods abroad was subject to the true ownership, if the goods came to Babylonia. On a sale there was a warranty as to slaves which was generally against a particular kind of sickness for one hundred days. The female slave was delivered on a three days’ approval. A Mann Act was certainly foreign to the ideas of these people.

      Payment in commercial transactions was usually in money, stating the place of payment, but payments in produce were provided for with a statutory equivalence. In extensive trade transactions speculative contracts were made where money or goods were delivered to an agent to travel and sell and to reinvest the proceeds, and this sort of transaction is continued until the present day, as will appear later. By these commercial adventurings a large commerce was carried on. Caravans were public carriers and a written receipt for all goods was necessary, like our bill of lading. No other claim for goods could be made except for those in the receipt. This is the present law of carriers. If an agent to travel and sell or buy made no profit he was required to return double what was confided to him, and if a small profit was made he made up the deficiency. In other cases, and they were the normal rule, profits were shared, and, singularly enough, neither the carrier nor the agent to sell was responsible for an act of the public enemy.

      On consignments to caravans the freight was paid in advance and the carrier was responsible at all events, except for acts of the public enemy. Warehouse receipts were issued for goods. Ships were hired for water carriage. On a contract for building a ship a warranty was made of seaworthiness for a certain period. In cases of collision of ships the moving ship was always at fault.

      The liquor trade came in for its regulation. The keeper of a tavern must prevent disorderly conduct on the premises under pain of death. In commercial transactions payment through bankers or by written draft against deposit was common, and bonds to pay were negotiable. There was always a marriage contract, and if a wife had no written marriage contract she was not a wife in fact. Ignorant people still show an almost fanatical zeal over their marriage lines. But a curious survival was that the wife remained part of her father’s family. Among the early Romans the wife passed to the husband’s family. The wife forfeited her right as wife by misconduct, but upon her divorce she kept her dower property. If the wife failed in her action against her husband or was proven a bad wife, she was drowned. If a husband left his wife without maintenance she could take up with another man, but she must take her husband back when he returned, and her children went to the husband; otherwise she was treated as guilty of adultery. This would have been a pleasant land for Enoch Arden.

      Monogamy was the rule. There were at the temples vestal virgins who married but were not supposed to have children. They furnished a substitute in the person of a handmaiden. The father had power over his daughter, but the brothers managed the sister’s property until she married, and then her husband had control. The son became emancipated on his marriage if he was of age, and he obtained his share of the property. In other words the patriarchal family and its estate had ceased to exist except as a thing to be constantly divided.

      Adoption of a child was common with childless people, but if an adopted child, on the discovery of his true parents, desired to return to them, his eye or tongue was torn out. It may be assumed, therefore, that an adoption generally stood. The adopted child shared in the family property as a child and all children shared equally in the father’s estate. There was no right of the firstborn as among the Hebrews. A child could be disinherited only by a judicial decision.

      The crime of adultery in the wife was recognized, but she was entitled to a kind of proof that survived for ages as the trial by ordeal. If when thrown into the river she sank, she was proven guilty, but if she floated her proof of innocence was complete. Babylonian women who intended to indulge a vagrant fancy were, no doubt, trained swimmers. In later ages William Rufus, the second Norman King of England, scoffed at the ordeal. It certainly would have been a sounder method of proof, if guilt had been shown by floating. All would have been guilty or drowned.

      The law as to damages was strongly tinged by the primitive law of exact retaliation. If a builder built a house so that it fell and killed the owner, the builder was put to death, but if it killed the eldest son of the owner, the eldest son of the builder was put to death. It remained for the Jews to advance the law beyond this primitive stage and rescue the son. In any event, the builder rebuilt the fallen house. The law was that if any one destroyed another’s eye, his own eye should be destroyed. If a bone was broken, his own bone was broken. If a tooth was knocked out, his own tooth was knocked out.

      There were penalties of different amounts of savagery for theft, for illegal buying or selling, or receiving stolen goods. A false claim, kidnapping, harboring of fugitive slaves, and brigandage were offenses. If a debtor’s son in the custody of the creditor suffered death caused by the creditor, the creditor’s son was put to death, and in the case of a bad builder, the penalty was exact, owner for owner, son for son, daughter for daughter. Banishment and the lash were other methods of punishment, but there was no imprisonment, it is needless to say, because prisons were far in the future.

      A curious fact was that the law as to dangerous animals at large was precisely the law of negligence. The responsibility of the owner depended upon his knowledge of the character of the animal. This, it will be seen, is the Hebrew law in Exodus and in Deuteronomy, and from the Hebrews it passed to the Romans and to England. Carelessness or neglect was punished and the standard of negligence seems to have approached our standard of reasonable care. A surgeon was held to strict accountability. If he caused loss of life or limb he lost his hands, if a veterinary, he paid for his malpractice. It has taken long ages for doctors to achieve the comfort of burying their mistakes.

      It would seem that witnesses appeared before the judge and a curious analogy to our separation of witnesses at the trial was the injunction when witnesses were summoned that they must not come together. In later Hebrew law witnesses were examined separately. In certain cases where witnesses would have been of no particular value or could not be ascertained, the ordeal was resorted to as a method of proof. For instance, the law provided that if a man had placed a charm upon another, and had not justified himself, the supposed wizard could make his proof of innocence by going to the holy river and by plunging in. If he drowned the accuser took his house, but if he was saved and thus proven innocent, the accuser lost his life and his house. This should have discouraged prosecution for wizardry. The same ordeal was applied to a wife for unfaithfulness, but in that case when the wife passed safely through the ordeal, the husband did not lose his life. If men are of such a mentality that they believe in spells and witchcraft, there would seem to be no better proof in such a case than the ordeal. Even in England before Sir Matthew Hale in the last half of the seventeenth century, the question of guilt of witchcraft was submitted to a jury, and among us the witchcraft proceedings at Salem convince us that the primeval savage terrified by the dark fears cast by his own ignorance still had power in fixing the law.

      Women devoted to a religious life suffered death for going into a wineshop,

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