no more.' Pray rather that they repent, for when sins cease, sinners are no more." Similarly we say that Society's great task is not to persecute criminals, but to prosecute crime; for when crime ceases, criminals will be no more.

DISCUSSION

RABBI FELIX A. LEVY

I discuss this paper at a great disadvantage both to myself and to you. It reached me on the eve of my departure for the East, and its late arrival gave me insufficient time for the careful study that leads to just criticism. It is unfair to you further because this unfortunate circumstance compels me to rely on a treacherous and uncertain memory-a poor authority and a lamentable apparatus criticus. So the remarks I make, written in the off hours of the convention, are the hasty generalizations and observations arrived at in a necessarily rapid perusal of the paper.

My discussion of the monograph falls into two parts: first, in reference to its manner; second, in reference to its matter. A tendency on the part of the author to preach is prominently noticeable. This is seen especially in the introduction and conclusion, both of which to my mind are quite irrelevant. to the subject in hand. A scientific paper can be excused for possessing a sermonic tone (I am guilty myself); but it is outside the province of scholarship to make of a learned discussion of the talio the peg on which to hang a sermon on crime and punishment.

The writer has succeeded in displaying a disregard for nonJewish scholarship, and has paid little attention to authorities other than those whose works are written in Hebrew. Is it not but fair that acknowledgment be given to men to whose labors we are indebted for thought and for material on the subject. For the Hammurapi Code the sole authority given is Mueller.

91 Berachoth, 10a.

The author apparently has not heard of Ungnad, Peiser, Cook and Johns.

The author is carried away by his love of rhetoric and by his facility at turning phrase which pardonable belletristic proclivity leads him into numerous slight inaccuracies. For example, he says, "Bringing to light a rude implement of antiquity will not help us in the construction of our engines." The most valuable instrument of the modern art of building— the hollow stone drill-owes its comparatively recent rediscovery in part to the circumstance that the ancient Egyptians furnished examples of its use and pictures of its appearance. The same people, too, has bequeathed secrets of embalming. This one example must suffice as typical of many instances, contrary to fact, which you doubtless have noticed in the paper.

The author has not used all the material by far, nor has he given us an accurate account of the historical evolution of the talio from its earliest appearance to its latest manifestation. While his division into pre-Go'el, Go'el and the later stage may serve as a basis for classification, he is totally unaware of the origin of the institution, the knowledge of which has been brought to light and its line of development firmly established by the investigations of Westermarck, Hobhouse and Robertson Smith, whose works he ignores. Not a word is said of the meaning of kappara (literally, the covering of the blood for propitiation of the ghost of the slain), either in its origin or its development.

This last brings me to the discussion of the matter of the paper. I disagree with his explanation of the psychology of revenge for which he cites the instance of the child striking back out of a dawning sense of justice, when it is attacked, rather than from instinct. I refer the author to the JamesLange theory of emotions for the correct solution. He has forgotten entirely that one, if not the only underlying principle of the law of retaliation in primitive times is the idea of nemesis. When murder was committed it was believed that the blood of the victim cried out for covering up. If the blood was not covered up, it was believed that dire consequences would

ensue to the whole community. The Go'el was the atoning agent responsible to the ghost of the departed who, if unavenged for loss of its life, would wreak havoc among his relatives and friends derelict in the execution of their task. The idea of vengeance need not even be present.

In his theory which makes the Go'el the agent of a higher justice because he is compelled to fulfill his gruesome mission, the writer overlooks the fact that the Go'el never would dare to shirk his duty. His statement to the effect that this occurs is, as far as I know, without basis. Certainly the author gives no corroboration by examples or citations for this sweeping generalization. Instances are on record where the avenger in his anxiety to cover the blood of the victim takes innocent lives because the real culprit could not be found. (Cf. II Sam. XXI 6ff, where Saul's sons are killed because the blood avenger could not find him.) By way of digression I may add that the underlying idea of expiatory sacrifices is the shedding of blood, and this idea is closely connected with the covering of blood in the case of murder.

The 'Are Miklat were not an aid to the Go'el, as the paper states, nor were they the result of an effort to overcome the rigor of the law by giving opportunity for escape for the manslayer. On the contrary, the sanctuary of refuge was a means of atoning other than by the customary shedding of human blood. It marked a distinct advance in kindliness and was not a guarantee for the execution of the talio, but just the opposite. An unbiased reading of the biblical material cannot help but convince the reader of the correctness of traditional interpretation, that the cities of refuge were simply to protect the unwitting murderer from the bloodthirsty Go'el. There is no evidence of any connivance on the part of the Go'el with the victim's family to evade the law by accepting ransom. The disgrace attendant upon the acceptance of money compensation by the Go'el under circumstances which forbade his doing so was a powerful enough deterrent to insure the traditional application of the talio in all its rigor. Among the Arabs one who accepts such a bribe was stigmatized as having accepted

milk for blood, meaning that he took a camel for the blood of his relative. The writer has entirely disregarded the theory which has strong foundation that the cities of refuge are fictitious. He assumes, too, an elaborate machinery as an indispensable adjunct for the execution of justice, when he is dealing with the most primitive sense of right and wrong in a state of society that had no judicial procedure to regulate the work of the Go'el. I am inclined to agree with Judge Sulzberger. For if legal procedure existed, why the necessity of the Go'el at all? The court could free the murderer.

To the second point in the author's theory of the peculiar working of the talio in Israelitish law and of its greater humaneness, as contrasted with the Hammurapi Code, I also take exception. In his desire to criticise the higher critics and to turn their methods against them by his discovery in the Book of Kings of the anticipation of individual responsibility for sin, he has overlooked the fact that while Amaziah lived one hundred and twenty years before the promulgation of Deuteronomy, the Book of Kings could not have been written until after the thirty-seventh year of the captivity of Jehoiakim (II Kings XXV 27), which event took place about one hundred and fifty years after the incident in question; and since it is mentioned, gives us a date at which to fix the redaction of this portion and of other portions of the Book of Kings, and presumably a postDeuteronomic date for the story of Amaziah's conduct. The fact that the story of Amaziah practically anticipated the Book of Deuteronomy, does not prove the earlier date of Deuteronomy, but rather the later post-Deuteronomic date of the Book of Kings or at least of that particular part of it. The method of deduction pursued is unscientific in the extreme. While I believe with him that there is bias in Christian scholarship, this gives us no excuse to condemn it as untrustworthy in all its findings. Many of its conclusions are true. We cannot refuse to accept them simply because our national vanity is pricked. Instead we ought to be thankful for every result of non-Jewish investigation which discovers new facts to the truth of which we can subscribe. The two points in question,

the fixing of the date of Deuteronomy and the still later date for Kings, are beyond dispute. The following is indicative of the author's method throughout. He starts from the premise that whatever emanates from Israel is ipso facto superior; therefore, the talio in Israel underwent a finer ethical development than elsewhere. To corroborate this last statement, he cites biblical verses, often reading into them a meaning which is not in the text; forgetting at the same time to take account of the historic evolution of biblical institutions as well as disregarding the very elementary facts which literary biblical criticism has discovered.

This bias in behalf of the supremacy of Jewish institutions leads him, to some rather startling conclusions; as, for example, the superiority of the Hebrew civilization over the Canaanitish drawn from one fact which he possibly incorrectly deduces from the comparison of the various Codes. Canaanitish civilization, so far as we know, may have been superior to the Hebrew in many respects, though the Israelites brought into the land which they conquered a superior ethical element. Nor is it established beyond a doubt that the laws of Hammurapi go back to a primitive Semitic code. They are, in all probability, a Semitic grafting on a non-Semitic Sumerian tree. The talio may have operated just as beneficently and effectively in Canaan; we have no proof to the contrary. By casuistic manipulation of texts (the very same charge which, in another connection, the author brings against Sulzberger), he arrives at his conclusion from the case of the gravid woman, namely, that there was a body of special legislation for women which harks back to a very ancient time. There is no evidence other than the author's own opinion and a Midrashic interpretation by Philo that this is the case. Further continuing his trend of thought, since both the Babylonian code and the Mosaic go back to a common Semitic Urgesetz or Urcoder, and since the Hebrew, according to his deduction in one instance (though I believe his logic is faulty), is superior to the Hammurapi law, therefore, the Hebrew reached a higher ethical plane and, therefore, it is superior to the whole Canaanitish civilization.