142 HAEOLD M. WIENER^ M.A., LL.B.^ ON THE 



More important for our present subject are the conceptions 

 of talion, sympathetic talion and so on. The idea of talion is 

 world-wide. The wrong-doer is to suffer precisely the same 

 injury as he has inflicted. It belongs to primitive ideas, and as 

 society advances it is always mitigated in whole or in part by 

 some system of pecuniary compensation. Very frequently 

 distinctions are drawn between the members of different classes, 

 and for our ultimate purposes it is important to note that this is 

 the case with Hammurabi. For instance we read : — 



" If a man has caused the loss of a gentleman's eye, one 

 shall cause his eye to be lost. 



" If he has shattered a gentleman's limb, one shall shatter his 

 limb. 



" If he has caused a poor man to lose his eye or shattered a 

 poor man's limb, he shall pay one mina of silver." (§§ 196-8.) 



Such rules not only show us the principle of talion in full 

 operation, they also point very clearly to the division of the 

 people into well-marked social strata and to the conception of 

 justice that such divisions had fostered. But while there is 

 nothing uncommon in these provisions the same cannot be said 

 of the provisions for slaying the child of a guilty or negligent 

 parent for the parent's offence. For example : — 



" If a builderdias built a house for a man and has not made 

 strong his work, and the house he built has fallen, and he has 

 caused the death of the owner of the house, that builder shall 

 be put to death. 



" If he has caused the son of the owner of the house to die, one 

 shall put to death the son of that builder " (§§ 229 ff.). 



These enactments are believed to be unique, and it will be 

 necessary to return to them when we consider the mental 

 element in the legislation. For the moment we are concerned 

 with them only as showing that the principle of talion was 

 retained to tlie fullest extent. 



Sympathetic talion is also much in evidence in the code. The 

 idea is sometimes that punishment should be inflicted on the 

 offending member, and sometimes that the instrument of the 

 offence should also be the instrument of the punishment. 

 Numerous examples come from all over the world. One of 

 those given by Post is worth quoting. A German forest 

 ordinance of the year 1546 provides that anybody felling a tree 

 shall have his right hand hewn off' with the axe he used in 

 committing his offence.* Flere we have both branches of the 



A. H. Post, Gmndriss der Ethnoloyischen Jv.risprudenz^ ii, 239, note 5. 



