26 



JUDGE GEORGE H. SMITH, ON 



placed in prison, but prison as a punishment seems to have been 

 either not at all or very rarely resorted to, which is another point of 

 difference between our laws and those of the ancient Babylonians. 

 We must naturally be very thankful that we live in these more 

 merciful times. The laws, with the Babylonians, were not exactly 

 in all cases "dictated by common sense," but, as in the case of all 

 primitive and class-legislation, by interest — it was to the interest of 

 the freeman to get all he could from the serf whom he employed, or 

 the slave whom he owned, and this self-interest is probably not 

 altogether absent from legislation even now. It is a pleasant thing 

 to think that our own laws are so dictated by " common sense," 

 though people have had doubts about it, as witness the oft-quoted 

 dictum which says that "the law is a hass." With the Babylonians, 

 however, the law was dictated by the state of society which existed 

 there at least, that is what their codes would lead one to 

 suppose. 



What I have said embodied such thoughts as occurred to me 

 whilst the paper was being read. It is not of the best, but I offer 

 it for what it is worth. 



Dr. Thirtle said : — That the penalty should sustain a proportional 

 relation to the offence was assuredly recognised by the lex talionis. 

 There was, moreover, another side to that manner of punishment. 

 In unsettled social conditions it must have exercised an important 

 restraining influence. It was " an eye for an eye " — not two eyes 

 for one, and probably further mutilation as well, exacted in lawless 

 vengeance. Again, it was " a tooth for a tooth " — not every tooth 

 from the head of the hapless offender, as penalty for an act of 

 malice or neglect, whereby some slight injury was inflicted upon his 

 fellow. Thus there was a merciful side to the law of retaliation, as 

 it is set out in the Mosaic code. Exod. xxi, 20-25 ; Lev. xxiv, 

 17-22 ; Deut. xix, 21. 



Mr. Oke said : — Has the writer made sufficient distinction between 

 law and morality ? I think I should prefer that wonderful book 

 of Austin. What would be the position of slavery if custom 

 guided morality 1 One would like to have more clearly stated what 

 is law and what is custom. There are difficulties of that kind 

 which suggest themselves to my mind, and I regret that the writer 

 £)f this interesting paper is not here to throw light on these subjects. 

 Professor Langhorne Orchard. — Our thanks are due to the able 



