even under the lash, was, until recently, not a crime in the eye of the
law even in the most civilized states. On the other hand, it may be a
crime to eat a female opossum. [Footnote: _Ibid._, I, chapter iv, p.
124.] The impressive imperative: Thou shalt not! appears to bear
unmistakable reference to time and circumstance.

And what is the natural and proper measure of punishment? The ancient and
primitive rule of an eye for an eye and a tooth for a tooth suggests the
figure of the scales, the impartially meting out to each man of his due.
It is obviously a rule that cannot be applied in all cases. One cannot
take the tooth of a toothless man, or compel a thievish beggar to restore
fruit which he has eaten. We should be horrified were any serious attempt
made to make the rule the basis of legislation in any civilized state
today, but men have not always been so fastidious. Approximations to it
have been incorporated into the laws of various peoples.

But all have modified it to some degree, and the modifications have taken
many forms--the punishment of someone not the criminal, compensation in
money or in goods, incarceration, and what not. Nor have the
modifications been made solely on account of the difficulty of applying
the rule baldly stated. Other influences have been at work.

Thus, in the famous Babylonian code, the man who struck out the eye of a
patrician lost his own eye in return, and his tooth answered for the
tooth of an equal--but the rule was not made general. [Footnote: 5
HOBHOUSE, _Morals in Evolution,_ I, chapter iii, Sec 3; New York,
1906.] In state after state it has been found just to treat differently
the patrician, the plebeian, the slave, the man, the woman, the priest.
In the very state to which Butler belonged, benefit of clergy could be
claimed, up to relatively recent times, by those who could read. The