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“[p. 413] Therefore,” he continued, “the praetors afterwards decided that this law was obsolete and invalid and declared that they would appoint arbiters to appraise damages. Again, some things in those laws obviously cannot, as 1 have said, even be carried out; for instance, the one referring to retaliation, which reads as follows, if my memory is correct: 'If one has broken another's limb, there shall be retaliation, unless a compromise be made.' Now not to mention the cruelty of the vengeance, the exaction even of a just retaliation is impossible. For if one whose limb has been broken by another wishes to retaliate by breaking a limb of has injurer, can he succeed, pray, in breaking the limb in exactly the same manner? In this case there first arises this insoluble difficulty. What about one who has broken another's limb unintentionally? For what has been done unintentionally ought to be retaliated unintentionally. For a chance blow and an intentional one do not fall under the same category of retaliation. How then will it be possible to imitate unintentional action, when in retaliating one has not the right of intention, but of unintention? But if he break it intentionally, the offender will certainly not allow himself to be injured more deeply or more severely; but by what weight and measure this can be avoided, I do not understand. Nay more, if retaliation is taken to a greater extent or differently, it will be a matter of absurd cruelty that a counter-action for retaliation should arise and an endless interchange of retaliation take place. But that enormity of cutting and dividing a man's body, if an individual is brought to trial for debt and adjudged to several creditors, 1 I do not care to remember, and I am ”
1 The law reads: fertiis nundinis partis secanto. Si plus minusve secuerunt, se fraude esto, “on the third market day (i.e. after about two weeks; see note on § 49, below) let them cut him into pieces. If they have cut more or less (than their proper share), let it be without prejudice (to them).”
The Attic Nights of Aulus Gellius. With An English Translation. John C. Rolfe. Cambridge. Cambridge, Mass., Harvard University Press; London, William Heinemann, Ltd. 1927.
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