denied, or whether the law of retaliation was too
well known, we cannot say. The Code does not regard the crime as one against the State, but against the individual, and he or his representa- tives plead for revenge rather than punishment. The Code, however, regulates this and assigns its bounds.
The unspecified death penalty is enacted against a man who alleges witchcraft, and so puts another in danger of death (§ 1) without justitication : for endangering life by false witness in a capital suit (§ 3); for entry and theft from mansion or temple (§ 6); for kidnapping a free-born child (§ 14); for housebreaking (§ 21); for highway robbery (§ 22) ; for rape of a betrothed maiden living at home (§ 130); for building a house so badly as to bring about the death of its owner (§ 229); for striking a gentlewoman with child and causing her death (§ 209) ; certain forms of theft, taking on deposit or buying from a domestic inferior, without power of attorney on his part, or in secret (§ 7); receiv- ing stolen goods (§ 6); appropriation of things found (§ 9); selling same (§ 10); vexatious claim of property (§ 11); procuring flight of slave (§ 15) ; harbouring fugitive slave (§ 16) or fugitive militia- man (§ 16); holding captured slave (§ 19); getting slave’s brand erased (§ 227); neglect of duty on part of privileged classes, as a beer-seller who did not procure arrest of seditious brawlers (§ 109) ; evasion of service or substitution of hireling on part of levy-master or catchpole (§ 26),—were all punished in this way.
Death with specified accessories, or manner, is enacted thus: burning—for theft at a conflagra- tion (§ 25); for votary, opening or entering beer- shop for drink (§ 110); for incest with mother (§ 157; ef. Gn 38%, Ly 204 21°, Jos 7°) ; drowning— for selling beer too cheap (§ 109); adultery (§ 129) ; being a bad wife (§ 143); incest with daughter- in-law ($155); deserting husband’s house in his enforced absence, if provided with maintenance ($133) ; impalement—for procuring husband’s death (§ 153, cf. Est 7°); dismemberment —for fraud uncompensated under the metayer system (§ 256). These special forms either make the punishment peculiarly appropriate to the deed, or perhaps embody ancient custom. The penalty in § 21 may perhaps imply that a man who tunnelled through the wall (built of sun-dried bricks) into
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his neighbour’s house might be killed ‘on the spot,’ and buried in the tunnel he had made; or it may mean that he could be buried in the open- ing from which his tunnel started, in his own house, assuming him to be a neighbour, and so desecrate that house for ever. In the case of an adulterous pair, the Code enacts that they shall be ‘bound’ (together?) and drowned (§ 129). A man who committed incest with his daughter-in- law was to be ‘ bound,’ and she was to be drowned (§ 155). Some think there is an error in the text, but it is possible that ‘bound’ really means ‘strangled.’ It is very unlikely that the man would be only ‘bound.’ The ordeal by water, to which a man accused of witchcraft, or a woman suspected by her husband of infidelity, had to submit, was likely to end in death (§§ 2, 132),
The working of § 2, which describes the ordeal, has been misunderstood. It is well known that a wizard or witch ought to float. The Code shows that if the river ‘conquers’ him he is guilty ; while, if he is saved, he is innocent. It is difficult to see how ‘conquering’ can mean ‘rejecting.’ Hence this ordeal is not in harmony with the ordinary ideas of witchcraft.
Mutilation as a penalty comes into the Code in two ways. First, as a mere retaliation for a muti- lation. Eye for eye (§ 196), tooth for tooth (§ 198), limb for limb (§ 197), are examples. Second, the mutilation is the punishment of the offending member. A surgeon who, through want of skill or care, causes the death of a patient under opera- tion, has his hands cut off (§ 218). So hasa brander who erases a slave’s brand (§ 226), or a son who strikes his father (§ 195). A wet-nurse, for sub- stituting a changeling for the child committed to her charge, has her breasts cut off (§ 194). An un- grateful adopted son, who spies out the disgraceful origin of his existence, has his eye torn out (§ 193). A slave who repudiates his master’s authority, or smites a gentleman on the cheek, has his ear—the organ of hearing and understanding, therefore of obedience—cut off (§§ 282, 205). An adopted child who used his tongue to repudiate his adoptive parents, had it cut out (§ 192). A man who used his hands to steal instead of to work, had them cut off (§ 253).
Scourging is only once named — sixty strokes with a cow-hide whip, laid on in the assembly, for smiting the cheek of a superior (§ 202). Brand- ing on the forehead was the punishment for slander of a votary or married woman (§ 127). It is dis- puted whether this may not mean cutting off the forelock, as the mark of a freeman. But it is ex- pressed by the same verb as is used to denote the putting of a slave mark on a presumptuous slave girl (§ 146). This mark was usually on the arm, and was visible (B? 419), and it could be eradicated by a brander. In later times we know that slaves had their owner’s name on their arms. This points to a tattoo. The sentence was, evidently, equivalent to degradation to slavery. The levy- masters claimed all slaves who were not owned privately (B? 419). Hence the sentence meant ‘hard labour for life.’ These slaves were clothed and fed at the public expense, but had no wages.