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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.)


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    • Gellius, Noctes Atticae, 20.1
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