In considering these laws of Babylonia we may consider first the public law. The king is the head of the state, the guarantor of the laws and of justice to his people, the high priest and representatives of the god. He rules by divine authority. The institutions were the work of the god. As St. Paul was afterwards to say, “The powers that be are ordained of God.” The Babylonians agreed with the divine right of kings, which was afterwards to be developed by the philosophers of absolutism from Hobbes to Hegel. The king was deified just as afterwards were the Roman emperors. Under the king were the nobles, the freemen, and the slaves. The word for a noble became also the word for a freeman, and this change showed a growing tendency to political equality. One distinction was that a freeman must accept compensation for an injury, while a noble could exact a retaliation for a corporal injury. The nobles were probably the conquering race and kept their own customs like the Franks in Gaul or the Normans in England. The noble for injuries inflicted by him paid a heavier compensation. The analogy of the situation to that of the Normans in England is plain. The freemen constituted the bulk of the community that was free. Below them were the slaves and serfs. The slave belonged to his master, but he could buy his freedom or could be manumitted. If a slave married a free woman, her children were free and half of the property was free to her. The slaves on the estates were generally of a subject race and were bound to the soil and had rights in the land they possessed. They were probably no worse off than the original English copyholder on the manorial estate.
Strangers and aliens were numerous in the cities. No question seems to have been made that they should have the benefit of the laws. It was a general rule among Semitic commercial communities that, to quote the Bible, “There shall be one law for the homeborn and for the stranger that sojourneth among you.” Even in our Constitution the jurisdiction given to federal courts to protect the foreigner or the citizen out of his own state can be traced directly back to the Babylonian law. Generally speaking, there was one uniform system of law in Babylon, all received from the god and all in fact customary law. Much of the old savage law was gone. There was no tribal law. This had all passed into the state and city law. The practices of the blood feud, self-help except distress, and marriage by capture were gone, but the family solidarity and the district responsibility were substituted for the kindred. The law of exact retaliation remained as a rule of damages. There was private property in the head of the family as representing the whole family.
The king had his own estates. The different cities had the duties they levied on goods in transit and ferry dues. The ferry dues would indicate one public utility owned by the city. The land in private ownership had its fixed charges, like the knights’ fees under the Norman kings. A definite area furnished for the army a bowman and a pikeman. The latter carried the shield for the bowman and for himself. Royal authorities commandeered property and gave a receipt for it. The land was bound to furnish the men for the army but the conscripts were often, it would seem, of the condition of serfs. The nobles went to war and no doubt furnished the officers for the army. The law was that a man was bound to serve but six times in the army.
Certain estates were held of the king, like the grand and petty sergeanties under the English kings, on personal services to be rendered to the king. All estates that were ancestral were tied to the family, but the holder could alienate them subject to the family right to redeem, which was not limited in time. This law among the Hebrews is vividly pictured in the book of Ruth. Much land was rented, especially by the temples, which held great possessions in land. This was to be repeated in the great possessions of the medieval church in Europe. The temple estates furnished many leases and many burdens were imposed on the temples. They must preserve certain hereditary rights in a portion of the temple of a character approaching the English advowson, or right to appoint the incumbent of a church. The temples were required to make advances to the poor and to furnish seed and corn and implements, and they were required to redeem certain prisoners who had been captured in war. It should be remembered that there were no poor laws in England until after the confiscation of the great estates of the abbeys and monasteries.
The law of landlord and tenant seems fairly enlightened. The rent was as contracted for, but if there was a failure of crop a moratorium or delay as to payment took place. If the rent was fixed, an accidental loss fell on the tenant; the tenant was bound to cultivate the land in a proper manner, or, as we should say, in a husbandlike manner, and he might leave the land if he left it in good condition. The tenant had power to sublet the land, but if the lease was one on profit-sharing, as where a temple was landlord, and the tenant was supplied with implements and cattle, there were harsh penalties on the tenant for selling the implements or mistreating or subletting the cattle. One very advanced sort of law was a building lease. The tenant put up the building which at the end of eight or ten years belonged to the landlord, just as we have our ninety-nine-year building leases. There were contracts of hiring cattle. The lessee was an insurer against loss, that is to say, he took the risk. He was required to keep the cattle properly bred and was responsible for any trespass on private property by the herd. Since there was an elaborate system of irrigation, that organization took the form which it has generally preserved. There was a general ditch from which the water was taken out into private ditches. It is probable that there was a public superintendence of the taking out of the water and of its use. The user was responsible for all damages resulting from the escape of the water after he had taken it. This law remains until the present day.
There was much employment of hired labor and in the case of all sorts of hired workmen the rate of wages was fixed by law. This is the original of the English Statutes of Laborers. There was a relation, therefore, of master and servant distinct from that of owner and slave or serf, just as that condition afterwards arose in England. In regard to other domestic relations, the law as to husband and wife provided for a marriage by purchase, arranged between the fathers. It must have been a curious sight throughout Babylonia, when the day came when all the unmarried girls of proper age were publicly put up for marriage by purchase. But it should be remembered that when in the early settlement of Virginia unmarried girls and women were brought over from England, they were put up for sale in the same way that fathers offered their daughters for sale in Babylonia. There was no marriage without a written contract, and it provided whether or not the husband became liable for his wife’s debts before marriage. If the contract was silent, he became responsible, but by contract he could repel this liability. He was liable for his wife’s debts after marriage. A divorce was optional with the husband, but if there were children their support and the wife’s support must be provided for upon a divorce. This is our law of alimony. The wife had her action against the husband for cruelty and neglect, and if the husband died leaving children, the wife could not marry unless the interests of the children of her former husband were fully protected. In this early civilization a wife could be a sole trader, for there was a penalty directed against those who led married women into improvident mercantile ventures.
All deeds were drawn up by an officer corresponding to a notary. These men were called scribes or scriveners. The deeds were confirmed by oath as to the warranty and publicly sealed and witnessed by witnesses. The greatest freedom of contract by agreement existed, and it is probable that there was no formal character of contract. It was all a matter of intention and agreement as evidenced by a written document. The Babylonian law as to written agreements was about what our law is to-day. A contract put into writing cannot be contradicted by oral evidence to the effect that the parties made some other agreement. All were what we call consensual contracts and each contract provided that any dispute arising thereon should be submitted to the decision of the king, and the parties were bound to abide by that decision. This shows that the king’s assumption of the readiness to do justice was not compulsory on the parties but was an arbitration to be agreed to, just as among the Celts the submission to the decision of a Brehon was not compulsory but the result of agreement. This was the original rule in English law as to a jury trial, when the jury was originally instituted. This is shown by our pleadings