TALIO
TALIO from
talis, signifies an
equivalent, but it is used only in the sense of a punishment, or penalty the
same in kind and degree as the mischief which the guilty person has done to
the body of another (cf. Isidor. 5.27, “Talio est similitudo
vindictae, ut taliter quis patiatur, ut fecit. Hoc enim et natura et
lege est institutum, ut caedentem similis vindicta sequatur” ). A
provision as to talio occurred in the Twelve Tables: “Si membrum rupit
ni cum eo pacit talio esto” (Festus, s. v.
Talionis;
Gel. 21.1; Gaius, 3.223). It appears that,
according to this law, a defendant declared guilty in the
actio de membris ruptis of having broken the limb of the
plaintiff was condemned to the penalty of retaliation at the hands of the
individual injured or his friends, unless he could agree with his adversary
that a pecuniary composition should be substituted for retaliation (
pactum de redimenda talione). A practice came to be
established, that in case of disagreement as to the amount of composition to
be paid, the party who had committed the wrong might demand an arbitrator of
the magistratus for the purpose of having the damages fixed, so that he
could escape from liability to talio by paying a fair composition (
Gel. 20.1,
37,
&c.: “hanc quoque ipsam talionem ad aestimationem judicis
redigi necessario solitam. Nam si reus, qui depacisci noluerat, judici
talionem imperanti non parebat, aestimata lite judex hominem pecuniae
dampnabat, atque ita, si reo et pactio gravis et acerba talio visa
fuerat, severitas legis ad pecuniae multam redibat” ). The
punishment of talio was only inflicted under the Twelve Tables on account of
the breaking of a limb (
propter membrumn ruptum);
for the breaking of a bone
[p. 2.759]（
propter os fractum) as distinct from a limb, the penalty was
300 asses if the person injured was a freeman, and 150 if he was a slave;
for other injuries, 25 asses: such sums being considered adequate
compensation in early times of great poverty, as Gaius tells us (3.223).
The principle of talio is generally found in systems of primitive law,
gradually giving place, as at Rome, to that of pecuniary damages or penalty.
Cato, as quoted by Priscian (vi. p. 710, Putsch), says in reference to Punic
law: “Si quis membrum rupit, aut os fregit, talione proximus cognatus
ulciscatur.” Talio, as a punishment, was a part of the Mosaic
law: “breach for breach, eye for eye, tooth for tooth; as he hath
caused a blemish in a man, so shall it be done to him again”
(Levit. 24.20). (Rein,
Das Criminalrecht der Römer,
pp. 37, 358, 816, 915; Rudorff,
Römische
Rechtsgeschichte, 2.325, note 1; Voigt,
Zwölf
Tafeln, 2.132.)
[
E.A.W]
