"
Consequently
it is of the essence of a nation
that the mutual relations of the citizens be ordered by just laws.
that the mutual relations of the citizens be ordered by just laws.
Summa Theologica
For certain precepts are laid down
concerning the institution of the sovereign and relating to his office,
and about the respect due to him: this is one part of the judicial
precepts. Again, certain precepts are given in respect of a man to his
fellow citizens: for instance, about buying and selling, judgments and
penalties: this is the second part of the judicial precepts. Again,
certain precepts are enjoined with regard to foreigners: for instance,
about wars waged against their foes, and about the way to receive
travelers and strangers: this is the third part of the judicial
precepts. Lastly, certain precepts are given relating to home life: for
instance, about servants, wives and children: this is the fourth part
of the judicial precepts.
Reply to Objection 1: Things pertaining to the ordering of relations
between one man and another are indeed infinite in number: yet they are
reducible to certain distinct heads, according to the different
relations in which one man stands to another, as stated above.
Reply to Objection 2: The precepts of the decalogue held the first
place in the moral order, as stated above ([2136]Q[100], A[3]): and
consequently it is fitting that other moral precepts should be
distinguished in relation to them. But the judicial and ceremonial
precepts have a different binding force, derived, not from natural
reason, but from their institution alone. Hence there is a distinct
reason for distinguishing them.
Reply to Objection 3: The Law alludes to the division of the judicial
precepts in the very things themselves which are prescribed by the
judicial precepts of the Law.
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OF THE REASON FOR THE JUDICIAL PRECEPTS (FOUR ARTICLES)
We must now consider the reason for the judicial precepts: under which
head there are four points of inquiry:
(1) Concerning the reason for the judicial precepts relating to the
rulers;
(2) Concerning the fellowship of one man with another;
(3) Concerning matters relating to foreigners;
(4) Concerning things relating to domestic matters.
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Whether the Old Law enjoined fitting precepts concerning rulers?
Objection 1: It would seem that the Old Law made unfitting precepts
concerning rulers. Because, as the Philosopher says (Polit. iii, 4),
"the ordering of the people depends mostly on the chief ruler. " But the
Law contains no precept relating to the institution of the chief ruler;
and yet we find therein prescriptions concerning the inferior rulers:
firstly (Ex. 18:21): "Provide out of all the people wise [Vulg. :
'able'] men," etc. ; again (Num. 11:16): "Gather unto Me seventy men of
the ancients of Israel"; and again (Dt. 1:13): "Let Me have from among
you wise and understanding men," etc. Therefore the Law provided
insufficiently in regard to the rulers of the people.
Objection 2: Further, "The best gives of the best," as Plato states
(Tim. ii). Now the best ordering of a state or of any nation is to be
ruled by a king: because this kind of government approaches nearest in
resemblance to the Divine government, whereby God rules the world from
the beginning. Therefore the Law should have set a king over the
people, and they should not have been allowed a choice in the matter,
as indeed they were allowed (Dt. 17:14,15): "When thou . . . shalt say:
I will set a king over me . . . thou shalt set him," etc.
Objection 3: Further, according to Mat. 12:25: "Every kingdom divided
against itself shall be made desolate": a saying which was verified in
the Jewish people, whose destruction was brought about by the division
of the kingdom. But the Law should aim chiefly at things pertaining to
the general well-being of the people. Therefore it should have
forbidden the kingdom to be divided under two kings: nor should this
have been introduced even by Divine authority; as we read of its being
introduced by the authority of the prophet Ahias the Silonite (3 Kings
11:29, seqq. ).
Objection 4: Further, just as priests are instituted for the benefit of
the people in things concerning God, as stated in Heb. 5:1; so are
rulers set up for the benefit of the people in human affairs. But
certain things were allotted as a means of livelihood for the priests
and Levites of the Law: such as the tithes and first-fruits, and many
like things. Therefore in like manner certain things should have been
determined for the livelihood of the rulers of the people: the more
that they were forbidden to accept presents, as is clearly stated in
Ex. 23:8: "You shall not [Vulg. : 'Neither shalt thou'] take bribes,
which even blind the wise, and pervert the words of the just. "
Objection 5: Further, as a kingdom is the best form of government, so
is tyranny the most corrupt. But when the Lord appointed the king, He
established a tyrannical law; for it is written (1 Kings 8:11): "This
will be the right of the king, that shall reign over you: He will take
your sons," etc. Therefore the Law made unfitting provision with regard
to the institution of rulers.
On the contrary, The people of Israel is commended for the beauty of
its order (Num. 24:5): "How beautiful are thy tabernacles, O Jacob, and
thy tents. " But the beautiful ordering of a people depends on the right
establishment of its rulers. Therefore the Law made right provision for
the people with regard to its rulers.
I answer that, Two points are to be observed concerning the right
ordering of rulers in a state or nation. One is that all should take
some share in the government: for this form of constitution ensures
peace among the people, commends itself to all, and is most enduring,
as stated in Polit. ii, 6. The other point is to be observed in respect
of the kinds of government, or the different ways in which the
constitutions are established. For whereas these differ in kind, as the
Philosopher states (Polit. iii, 5), nevertheless the first place is
held by the "kingdom," where the power of government is vested in one;
and "aristocracy," which signifies government by the best, where the
power of government is vested in a few. Accordingly, the best form of
government is in a state or kingdom, where one is given the power to
preside over all; while under him are others having governing powers:
and yet a government of this kind is shared by all, both because all
are eligible to govern, and because the rules are chosen by all. For
this is the best form of polity, being partly kingdom, since there is
one at the head of all; partly aristocracy, in so far as a number of
persons are set in authority; partly democracy, i. e. government by the
people, in so far as the rulers can be chosen from the people, and the
people have the right to choose their rulers.
Such was the form of government established by the Divine Law. For
Moses and his successors governed the people in such a way that each of
them was ruler over all; so that there was a kind of kingdom. Moreover,
seventy-two men were chosen, who were elders in virtue: for it is
written (Dt. 1:15): "I took out of your tribes wise and honorable, and
appointed them rulers": so that there was an element of aristocracy.
But it was a democratical government in so far as the rulers were
chosen from all the people; for it is written (Ex. 18:21): "Provide out
of all the people wise [Vulg. : 'able'] men," etc. ; and, again, in so
far as they were chosen by the people; wherefore it is written (Dt.
1:13): "Let me have from among you wise [Vulg. : 'able'] men," etc.
Consequently it is evident that the ordering of the rulers was well
provided for by the Law.
Reply to Objection 1: This people was governed under the special care
of God: wherefore it is written (Dt. 7:6): "The Lord thy God hath
chosen thee to be His peculiar people": and this is why the Lord
reserved to Himself the institution of the chief ruler. For this too
did Moses pray (Num. 27:16): "May the Lord the God of the spirits of
all the flesh provide a man, that may be over this multitude. " Thus by
God's orders Josue was set at the head in place of Moses; and we read
about each of the judges who succeeded Josue that God "raised . . . up
a saviour" for the people, and that "the spirit of the Lord was" in
them (Judges 3:9, 10, 15). Hence the Lord did not leave the choice of a
king to the people; but reserved this to Himself, as appears from Dt.
17:15: "Thou shalt set him whom the Lord thy God shall choose. "
Reply to Objection 2: A kingdom is the best form of government of the
people, so long as it is not corrupt. But since the power granted to a
king is so great, it easily degenerates into tyranny, unless he to whom
this power is given be a very virtuous man: for it is only the virtuous
man that conducts himself well in the midst of prosperity, as the
Philosopher observes (Ethic. iv, 3). Now perfect virtue is to be found
in few: and especially were the Jews inclined to cruelty and avarice,
which vices above all turn men into tyrants. Hence from the very first
the Lord did not set up the kingly authority with full power, but gave
them judges and governors to rule them. But afterwards when the people
asked Him to do so, being indignant with them, so to speak, He granted
them a king, as is clear from His words to Samuel (1 Kings 8:7): "They
have not rejected thee, but Me, that I should not reign over them. "
Nevertheless, as regards the appointment of a king, He did establish
the manner of election from the very beginning (Dt. 17:14, seqq. ): and
then He determined two points: first, that in choosing a king they
should wait for the Lord's decision; and that they should not make a
man of another nation king, because such kings are wont to take little
interest in the people they are set over, and consequently to have no
care for their welfare: secondly, He prescribed how the king after his
appointment should behave, in regard to himself; namely, that he should
not accumulate chariots and horses, nor wives, nor immense wealth:
because through craving for such things princes become tyrants and
forsake justice. He also appointed the manner in which they were to
conduct themselves towards God: namely, that they should continually
read and ponder on God's Law, and should ever fear and obey God.
Moreover, He decided how they should behave towards their subjects:
namely, that they should not proudly despise them, or ill-treat them,
and that they should not depart from the paths of justice.
Reply to Objection 3: The division of the kingdom, and a number of
kings, was rather a punishment inflicted on that people for their many
dissensions, specially against the just rule of David, than a benefit
conferred on them for their profit. Hence it is written (Osee 13:11):
"I will give thee a king in My wrath"; and (Osee 8:4): "They have
reigned, but not by Me: they have been princes, and I knew not. "
Reply to Objection 4: The priestly office was bequeathed by succession
from father to son: and this, in order that it might be held in greater
respect, if not any man from the people could become a priest: since
honor was given to them out of reverence for the divine worship. Hence
it was necessary to put aside certain things for them both as to tithes
and as to first-fruits, and, again, as to oblations and sacrifices,
that they might be afforded a means of livelihood. On the other hand,
the rulers, as stated above, were chosen from the whole people;
wherefore they had their own possessions, from which to derive a
living: and so much the more, since the Lord forbade even a king to
have superabundant wealth to make too much show of magnificence: both
because he could scarcely avoid the excesses of pride and tyranny,
arising from such things, and because, if the rulers were not very
rich, and if their office involved much work and anxiety, it would not
tempt the ambition of the common people; and would not become an
occasion of sedition.
Reply to Objection 5: That right was not given to the king by Divine
institution: rather was it foretold that kings would usurp that right,
by framing unjust laws, and by degenerating into tyrants who preyed on
their subjects. This is clear from the context that follows: "And you
shall be his slaves [Douay: 'servants']": which is significative of
tyranny, since a tyrant rules is subjects as though they were his
slaves. Hence Samuel spoke these words to deter them from asking for a
king; since the narrative continues: "But the people would not hear the
voice of Samuel. " It may happen, however, that even a good king,
without being a tyrant, may take away the sons, and make them tribunes
and centurions; and may take many things from his subjects in order to
secure the common weal.
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Whether the judicial precepts were suitably framed as to the relations of
one man with another?
Objection 1: It would seem that the judicial precepts were not suitably
framed as regards the relations of one man with another. Because men
cannot live together in peace, if one man takes what belongs to
another. But this seems to have been approved by the Law: since it is
written (Dt. 23:24): "Going into thy neighbor's vineyard, thou mayest
eat as many grapes as thou pleasest. " Therefore the Old Law did not
make suitable provisions for man's peace.
Objection 2: Further, one of the chief causes of the downfall of states
has been the holding of property by women, as the Philosopher says
(Polit. ii, 6). But this was introduced by the Old Law; for it is
written (Num. 27:8): "When a man dieth without a son, his inheritance
shall pass to his daughter. " Therefore the Law made unsuitable
provision for the welfare of the people.
Objection 3: Further, it is most conducive to the preservation of human
society that men may provide themselves with necessaries by buying and
selling, as stated in Polit. i. But the Old Law took away the force of
sales; since it prescribes that in the 50th year of the jubilee all
that is sold shall return to the vendor (Lev. 25:28). Therefore in this
matter the Law gave the people an unfitting command.
Objection 4: Further, man's needs require that men should be ready to
lend: which readiness ceases if the creditors do not return the
pledges: hence it is written (Ecclus. 29:10): "Many have refused to
lend, not out of wickedness, but they were afraid to be defrauded
without cause. " And yet this was encouraged by the Law. First, because
it prescribed (Dt. 15:2): "He to whom any thing is owing from his
friend or neighbor or brother, cannot demand it again, because it is
the year of remission of the Lord"; and (Ex. 22:15) it is stated that
if a borrowed animal should die while the owner is present, the
borrower is not bound to make restitution. Secondly, because the
security acquired through the pledge is lost: for it is written (Dt.
24:10): "When thou shalt demand of thy neighbor any thing that he oweth
thee, thou shalt not go into his house to take away a pledge"; and
again (Dt. 24:12,13): "The pledge shall not lodge with thee that night,
but thou shalt restore it to him presently. " Therefore the Law made
insufficient provision in the matter of loans.
Objection 5: Further, considerable risk attaches to goods deposited
with a fraudulent depositary: wherefore great caution should be
observed in such matters: hence it is stated in 2 Mac. 3:15 that "the
priests . . . called upon Him from heaven, Who made the law concerning
things given to be kept, that He would preserve them safe, for them
that had deposited them. " But the precepts of the Old Law observed
little caution in regard to deposits: since it is prescribed (Ex.
22:10,11) that when goods deposited are lost, the owner is to stand by
the oath of the depositary. Therefore the Law made unsuitable provision
in this matter.
Objection 6: Further, just as a workman offers his work for hire, so do
men let houses and so forth. But there is no need for the tenant to pay
his rent as soon as he takes a house. Therefore it seems an
unnecessarily hard prescription (Lev. 19:13) that "the wages of him
that hath been hired by thee shall not abide with thee until morning. "
Objection 7: Further, since there is often pressing need for a judge,
it should be easy to gain access to one. It was therefore unfitting
that the Law (Dt. 17:8,9) should command them to go to a fixed place to
ask for judgment on doubtful matters.
Objection 8: Further, it is possible that not only two, but three or
more, should agree to tell a lie. Therefore it is unreasonably stated
(Dt. 19:15) that "in the mouth of two or three witnesses every word
shall stand. "
Objection 9: Further, punishment should be fixed according to the
gravity of the fault: for which reason also it is written (Dt. 25:2):
"According to the measure of the sin, shall the measure also of the
stripes be. " Yet the Law fixed unequal punishments for certain faults:
for it is written (Ex. 22:1) that the thief "shall restore five oxen
for one ox, and four sheep for one sheep. " Moreover, certain slight
offenses are severely punished: thus (Num. 15:32, seqq. ) a man is
stoned for gathering sticks on the sabbath day: and (Dt. 21:18, seqq. )
the unruly son is commanded to be stoned on account of certain small
transgressions, viz. because "he gave himself to revelling . . . and
banquetings. " Therefore the Law prescribed punishments in an
unreasonable manner.
Objection 10: Further, as Augustine says (De Civ. Dei xxi, 11), "Tully
writes that the laws recognize eight forms of punishment, indemnity,
prison, stripes, retaliation, public disgrace, exile, death, slavery. "
Now some of these were prescribed by the Law. "Indemnity," as when a
thief was condemned to make restitution fivefold or fourfold. "Prison,"
as when (Num. 15:34) a certain man is ordered to be imprisoned.
"Stripes"; thus (Dt. 25:2), "if they see that the offender be worthy of
stripes; they shall lay him down, and shall cause him to be beaten
before them. " "Public disgrace" was brought on to him who refused to
take to himself the wife of his deceased brother, for she took "off his
shoe from his foot, and" did "spit in his face" (Dt. 25:9). It
prescribed the "death" penalty, as is clear from (Lev. 20:9): "He that
curseth his father, or mother, dying let him die. " The Law also
recognized the "lex talionis," by prescribing (Ex. 21:24): "Eye for
eye, tooth for tooth. " Therefore it seems unreasonable that the Law
should not have inflicted the two other punishments, viz. "exile" and
"slavery. "
Objection 11: Further, no punishment is due except for a fault. But
dumb animals cannot commit a fault. Therefore the Law is unreasonable
in punishing them (Ex. 21:29): "If the ox . . . shall kill a man or a
woman," it "shall be stoned": and (Lev. 20:16): "The woman that shall
lie under any beast, shall be killed together with the same. " Therefore
it seems that matters pertaining to the relations of one man with
another were unsuitably regulated by the Law.
Objection 12: Further, the Lord commanded (Ex. 21:12) a murderer to be
punished with death. But the death of a dumb animal is reckoned of much
less account than the slaying of a man. Hence murder cannot be
sufficiently punished by the slaying of a dumb animal. Therefore it is
unfittingly prescribed (Dt. 21:1, 4) that "when there shall be found .
. . the corpse of a man slain, and it is not known who is guilty of the
murder . . . the ancients" of the nearest city "shall take a heifer of
the herd, that hath not drawn in the yoke, nor ploughed the ground, and
they shall bring her into a rough and stony valley, that never was
ploughed, nor sown; and there they shall strike off the head of the
heifer. "
On the contrary, It is recalled as a special blessing (Ps. 147:20) that
"He hath not done in like manner to every nation; and His judgments He
hath not made manifest to them. "
I answer that, As Augustine says (De Civ. Dei ii, 21), quoting Tully,
"a nation is a body of men united together by consent to the law and by
community of welfare.
" Consequently it is of the essence of a nation
that the mutual relations of the citizens be ordered by just laws. Now
the relations of one man with another are twofold: some are effected
under the guidance of those in authority: others are effected by the
will of private individuals. And since whatever is subject to the power
of an individual can be disposed of according to his will, hence it is
that the decision of matters between one man and another, and the
punishment of evildoers, depend on the direction of those in authority,
to whom men are subject. On the other hand, the power of private
persons is exercised over the things they possess: and consequently
their dealings with one another, as regards such things, depend on
their own will, for instance in buying, selling, giving, and so forth.
Now the Law provided sufficiently in respect of each of these relations
between one man and another. For it established judges, as is clearly
indicated in Dt. 16:18: "Thou shalt appoint judges and magistrates in
all its [Vulg. : 'thy'] gates . . . that they may judge the people with
just judgment. " It is also directed the manner of pronouncing just
judgments, according to Dt. 1:16,17: "Judge that which is just, whether
he be one of your own country or a stranger: there shall be no
difference of persons. " It also removed an occasion of pronouncing
unjust judgment, by forbidding judges to accept bribes (Ex. 23:8; Dt.
16:19). It prescribed the number of witnesses, viz. two or three: and
it appointed certain punishments to certain crimes, as we shall state
farther on (ad 10).
But with regard to possessions, it is a very good thing, says the
Philosopher (Polit. ii, 2) that the things possessed should be
distinct, and the use thereof should be partly common, and partly
granted to others by the will of the possessors. These three points
were provided for by the Law. Because, in the first place, the
possessions themselves were divided among individuals: for it is
written (Num. 33:53,54): "I have given you" the land "for a possession:
and you shall divide it among you by lot. " And since many states have
been ruined through want of regulations in the matter of possessions,
as the Philosopher observes (Polit. ii, 6); therefore the Law provided
a threefold remedy against the regularity of possessions. The first was
that they should be divided equally, wherefore it is written (Num.
33:54): "To the more you shall give a larger part, and to the fewer, a
lesser. " A second remedy was that possessions could not be alienated
for ever, but after a certain lapse of time should return to their
former owner, so as to avoid confusion of possessions (cf. ad 3). The
third remedy aimed at the removal of this confusion, and provided that
the dead should be succeeded by their next of kin: in the first place,
the son; secondly, the daughter; thirdly, the brother; fourthly, the
father's brother; fifthly, any other next of kin. Furthermore, in order
to preserve the distinction of property, the Law enacted that heiresses
should marry within their own tribe, as recorded in Num. 36:6.
Secondly, the Law commanded that, in some respects, the use of things
should belong to all in common. Firstly, as regards the care of them;
for it was prescribed (Dt. 22:1-4): "Thou shalt not pass by, if thou
seest thy brother's ox or his sheep go astray; but thou shalt bring
them back to thy brother," and in like manner as to other things.
Secondly, as regards fruits. For all alike were allowed on entering a
friend's vineyard to eat of the fruit, but not to take any away. And,
specially, with respect to the poor, it was prescribed that the
forgotten sheaves, and the bunches of grapes and fruit, should be left
behind for them (Lev. 19:9; Dt. 24:19). Moreover, whatever grew in the
seventh year was common property, as stated in Ex. 23:11 and Lev. 25:4.
Thirdly, the law recognized the transference of goods by the owner.
There was a purely gratuitous transfer: thus it is written (Dt.
14:28,29): "The third day thou shalt separate another tithe . . . and
the Levite . . . and the stranger, and the fatherless, and the widow .
. . shall come and shall eat and be filled. " And there was a transfer
for a consideration, for instance, by selling and buying, by letting
out and hiring, by loan and also by deposit, concerning all of which we
find that the Law made ample provision. Consequently it is clear that
the Old Law provided sufficiently concerning the mutual relations of
one man with another.
Reply to Objection 1: As the Apostle says (Rom. 13:8), "he that loveth
his neighbor hath fulfilled the Law": because, to wit, all the precepts
of the Law, chiefly those concerning our neighbor, seem to aim at the
end that men should love one another. Now it is an effect of love that
men give their own goods to others: because, as stated in 1 Jn. 3:17:
"He that . . . shall see his brother in need, and shall shut up his
bowels from him: how doth the charity of God abide in him? " Hence the
purpose of the Law was to accustom men to give of their own to others
readily: thus the Apostle (1 Tim. 6:18) commands the rich "to give
easily and to communicate to others. " Now a man does not give easily to
others if he will not suffer another man to take some little thing from
him without any great injury to him. And so the Law laid down that it
should be lawful for a man, on entering his neighbor's vineyard, to eat
of the fruit there: but not to carry any away, lest this should lead to
the infliction of a grievous harm, and cause a disturbance of the
peace: for among well-behaved people, the taking of a little does not
disturb the peace; in fact, it rather strengthens friendship and
accustoms men to give things to one another.
Reply to Objection 2: The Law did not prescribe that women should
succeed to their father's estate except in default of male issue:
failing which it was necessary that succession should be granted to the
female line in order to comfort the father, who would have been sad to
think that his estate would pass to strangers. Nevertheless the Law
observed due caution in the matter, by providing that those women who
succeeded to their father's estate, should marry within their own
tribe, in order to avoid confusion of tribal possessions, as stated in
Num. 36:7,8.
Reply to Objection 3: As the Philosopher says (Polit. ii, 4), the
regulation of possessions conduces much to the preservation of a state
or nation. Consequently, as he himself observes, it was forbidden by
the law in some of the heathen states, "that anyone should sell his
possessions, except to avoid a manifest loss. " For if possessions were
to be sold indiscriminately, they might happen to come into the hands
of a few: so that it might become necessary for a state or country to
become void of inhabitants. Hence the Old Law, in order to remove this
danger, ordered things in such a way that while provision was made for
men's needs, by allowing the sale of possessions to avail for a certain
period, at the same time the said danger was removed, by prescribing
the return of those possessions after that period had elapsed. The
reason for this law was to prevent confusion of possessions, and to
ensure the continuance of a definite distinction among the tribes.
But as the town houses were not allotted to distinct estates, therefore
the Law allowed them to be sold in perpetuity, like movable goods.
Because the number of houses in a town was not fixed, whereas there was
a fixed limit to the amount of estates, which could not be exceeded,
while the number of houses in a town could be increased. On the other
hand, houses situated not in a town, but "in a village that hath no
walls," could not be sold in perpetuity: because such houses are built
merely with a view to the cultivation and care of possessions;
wherefore the Law rightly made the same prescription in regard to both
(Lev. 25).
Reply to Objection 4: As stated above (ad 1), the purpose of the Law
was to accustom men to its precepts, so as to be ready to come to one
another's assistance: because this is a very great incentive to
friendship. The Law granted these facilities for helping others in the
matter not only of gratuitous and absolute donations, but also of
mutual transfers: because the latter kind of succor is more frequent
and benefits the greater number: and it granted facilities for this
purpose in many ways. First of all by prescribing that men should be
ready to lend, and that they should not be less inclined to do so as
the year of remission drew nigh, as stated in Dt. 15:7, seqq. Secondly,
by forbidding them to burden a man to whom they might grant a loan,
either by exacting usury, or by accepting necessities of life in
security; and by prescribing that when this had been done they should
be restored at once. For it is written (Dt. 23:19): "Thou shalt not
lend to thy brother money to usury": and (Dt. 24:6): "Thou shalt not
take the nether nor the upper millstone to pledge; for he hath pledged
his life to thee": and (Ex. 22:26): "If thou take of thy neighbor a
garment in pledge, thou shalt give it him again before sunset. "
Thirdly, by forbidding them to be importunate in exacting payment.
Hence it is written (Ex. 22:25): "If thou lend money to any of my
people that is poor that dwelleth with thee, thou shalt not be hard
upon them as an extortioner. " For this reason, too, it is enacted (Dt.
24:10,11): "When thou shalt demand of thy neighbor anything that he
oweth thee, thou shalt not go into his house to take away a pledge, but
thou shalt stand without, and he shall bring out to thee what he hath":
both because a man's house is his surest refuge, wherefore it is
offensive to a man to be set upon in his own house; and because the Law
does not allow the creditor to take away whatever he likes in security,
but rather permits the debtor to give what he needs least. Fourthly,
the Law prescribed that debts should cease together after the lapse of
seven years. For it was probable that those who could conveniently pay
their debts, would do so before the seventh year, and would not defraud
the lender without cause. But if they were altogether insolvent, there
was the same reason for remitting the debt from love for them, as there
was for renewing the loan on account of their need.
As regards animals granted in loan, the Law enacted that if, through
the neglect of the person to whom they were lent, they perished or
deteriorated in his absence, he was bound to make restitution. But if
they perished or deteriorated while he was present and taking proper
care of them, he was not bound to make restitution, especially if they
were hired for a consideration: because they might have died or
deteriorated in the same way if they had remained in possession of the
lender, so that if the animal had been saved through being lent, the
lender would have gained something by the loan which would no longer
have been gratuitous. And especially was this to be observed when
animals were hired for a consideration: because then the owner received
a certain price for the use of the animals; wherefore he had no right
to any profit, by receiving indemnity for the animal, unless the person
who had charge of it were negligent. In the case, however, of animals
not hired for a consideration, equity demanded that he should receive
something by way of restitution at least to the value of the hire of
the animal that had perished or deteriorated.
Reply to Objection 5: The difference between a loan and a deposit is
that a loan is in respect of goods transferred for the use of the
person to whom they are transferred, whereas a deposit is for the
benefit of the depositor. Hence in certain cases there was a stricter
obligation of returning a loan than of restoring goods held in deposit.
Because the latter might be lost in two ways. First, unavoidably: i. e.
either through a natural cause, for instance if an animal held in
deposit were to die or depreciate in value; or through an extrinsic
cause, for instance, if it were taken by an enemy, or devoured by a
beast (in which case, however, a man was bound to restore to the owner
what was left of the animal thus slain): whereas in the other cases
mentioned above, he was not bound to make restitution; but only to take
an oath in order to clear himself of suspicion. Secondly, the goods
deposited might be lost through an avoidable cause, for instance by
theft: and then the depositary was bound to restitution on account of
his neglect. But, as stated above (ad 4), he who held an animal on
loan, was bound to restitution, even if he were absent when it
depreciated or died: because he was held responsible for less
negligence than a depositary, who was only held responsible in case of
theft.
Reply to Objection 6: Workmen who offer their labor for hire, are poor
men who toil for their daily bread: and therefore the Law commanded
wisely that they should be paid at once, lest they should lack food.
But they who offer other commodities for hire, are wont to be rich: nor
are they in such need of their price in order to gain a livelihood: and
consequently the comparison does not hold.
Reply to Objection 7: The purpose for which judges are appointed among
men, is that they may decide doubtful points in matters of justice. Now
a matter may be doubtful in two ways. First, among simple-minded
people: and in order to remove doubts of this kind, it was prescribed
(Dt. 16:18) that "judges and magistrates" should be appointed in each
tribe, "to judge the people with just judgment. " Secondly, a matter may
be doubtful even among experts: and therefore, in order to remove
doubts of this kind, the Law prescribed that all should foregather in
some chief place chosen by God, where there would be both the
high-priest, who would decide doubtful matters relating to the
ceremonies of divine worship; and the chief judge of the people, who
would decide matters relating to the judgments of men: just as even now
cases are taken from a lower to a higher court either by appeal or by
consultation. Hence it is written (Dt. 17:8,9): "If thou perceive that
there be among you a hard and doubtful matter in judgment . . . and
thou see that the words of the judges within thy gates do vary; arise
and go up to the place, which the Lord thy God shall choose; and thou
shalt come to the priests of the Levitical race, and to the judge that
shall be at that time. " But such like doubtful matters did not often
occur for judgment: wherefore the people were not burdened on this
account.
Reply to Objection 8: In the business affairs of men, there is no such
thing as demonstrative and infallible proof, and we must be content
with a certain conjectural probability, such as that which an orator
employs to persuade. Consequently, although it is quite possible for
two or three witnesses to agree to a falsehood, yet it is neither easy
nor probable that they succeed in so doing: wherefore their testimony
is taken as being true, especially if they do not waver in giving it,
or are not otherwise suspect. Moreover, in order that witnesses might
not easily depart from the truth, the Law commanded that they should be
most carefully examined, and that those who were found untruthful
should be severely punished, as stated in Dt. 19:16, seqq.
There was, however, a reason for fixing on this particular number, in
token of the unerring truth of the Divine Persons, Who are sometimes
mentioned as two, because the Holy Ghost is the bond of the other two
Persons; and sometimes as three: as Augustine observes on Jn. 8:17: "In
your law it is written that the testimony of two men is true. "
Reply to Objection 9: A severe punishment is inflicted not only on
account of the gravity of a fault, but also for other reasons. First,
on account of the greatness of the sin, because a greater sin, other
things being equal, deserves a greater punishment. Secondly, on account
of a habitual sin, since men are not easily cured of habitual sin
except by severe punishments. Thirdly, on account of a great desire for
or a great pleasure in the sin: for men are not easily deterred from
such sins unless they be severely punished. Fourthly, on account of the
facility of committing a sin and of concealing it: for such like sins,
when discovered, should be more severely punished in order to deter
others from committing them.
Again, with regard to the greatness of a sin, four degrees may be
observed, even in respect of one single deed. The first is when a sin
is committed unwillingly; because then, if the sin be altogether
involuntary, man is altogether excused from punishment; for it is
written (Dt. 22:25, seqq. ) that a damsel who suffers violence in a
field is not guilty of death, because "she cried, and there was no man
to help her. " But if a man sinned in any way voluntarily, and yet
through weakness, as for instance when a man sins from passion, the sin
is diminished: and the punishment, according to true judgment, should
be diminished also; unless perchance the common weal requires that the
sin be severely punished in order to deter others from committing such
sins, as stated above. The second degree is when a man sins through
ignorance: and then he was held to be guilty to a certain extent, on
account of his negligence in acquiring knowledge: yet he was not
punished by the judges but expiated his sin by sacrifices. Hence it is
written (Lev. 4:2): "The soul that sinneth through ignorance," etc.
This is, however, to be taken as applying to ignorance of fact; and not
to ignorance of the Divine precept, which all were bound to know. The
third degree was when a man sinned from pride, i. e. through deliberate
choice or malice: and then he was punished according to the greatness
of the sin [*Cf. Dt. 25:2]. The fourth degree was when a man sinned
from stubbornness or obstinacy: and then he was to be utterly cut off
as a rebel and a destroyer of the commandment of the Law [*Cf. Num.
15:30,31].
Accordingly we must say that, in appointing the punishment for theft,
the Law considered what would be likely to happen most frequently (Ex.
22:1-9): wherefore, as regards theft of other things which can easily
be safeguarded from a thief, the thief restored only twice their value.
But sheep cannot be easily safeguarded from a thief, because they graze
in the fields: wherefore it happened more frequently that sheep were
stolen in the fields. Consequently the Law inflicted a heavier penalty,
by ordering four sheep to be restored for the theft of one. As to
cattle, they were yet more difficult to safeguard, because they are
kept in the fields, and do not graze in flocks as sheep do; wherefore a
yet more heavy penalty was inflicted in their regard, so that five oxen
were to be restored for one ox. And this I say, unless perchance the
animal itself were discovered in the thief's possession: because in
that case he had to restore only twice the number, as in the case of
other thefts: for there was reason to presume that he intended to
restore the animal, since he kept it alive. Again, we might say,
according to a gloss, that "a cow is useful in five ways: it may be
used for sacrifice, for ploughing, for food, for milk, and its hide is
employed for various purposes": and therefore for one cow five had to
be restored. But the sheep was useful in four ways: "for sacrifice, for
meat, for milk, and for its wool. " The unruly son was slain, not
because he ate and drank: but on account of his stubbornness and
rebellion, which was always punished by death, as stated above. As to
the man who gathered sticks on the sabbath, he was stoned as a breaker
of the Law, which commanded the sabbath to be observed, to testify the
belief in the newness of the world, as stated above ([2137]Q[100],
A[5]): wherefore he was slain as an unbeliever.
Reply to Objection 10: The Old Law inflicted the death penalty for the
more grievous crimes, viz. for those which are committed against God,
and for murder, for stealing a man, irreverence towards one's parents,
adultery and incest. In the case of thief of other things it inflicted
punishment by indemnification: while in the case of blows and
mutilation it authorized punishment by retaliation; and likewise for
the sin of bearing false witness. In other faults of less degree it
prescribed the punishment of stripes or of public disgrace.
The punishment of slavery was prescribed by the Law in two cases.
First, in the case of a slave who was unwilling to avail himself of the
privilege granted by the Law, whereby he was free to depart in the
seventh year of remission: wherefore he was punished by remaining a
slave for ever. Secondly, in the case of a thief, who had not wherewith
to make restitution, as stated in Ex. 22:3.
The punishment of absolute exile was not prescribed by the Law: because
God was worshipped by that people alone, whereas all other nations were
given to idolatry: wherefore if any man were exiled from that people
absolutely, he would be in danger of falling into idolatry. For this
reason it is related (1 Kings 26:19) that David said to Saul: "They are
cursed in the sight of the Lord, who have case me out this day, that I
should not dwell in the inheritance of the Lord, saying: Go, serve
strange gods. " There was, however, a restricted sort of exile: for it
is written in Dt. 19:4 [*Cf. Num. 35:25] that "he that striketh [Vulg. :
'killeth'] his neighbor ignorantly, and is proved to have had no hatred
against him, shall flee to one of the cities" of refuge and "abide
there until the death of the high-priest. " For then it became lawful
for him to return home, because when the whole people thus suffered a
loss they forgot their private quarrels, so that the next of kin of the
slain were not so eager to kill the slayer.
Reply to Objection 11: Dumb animals were ordered to be slain, not on
account of any fault of theirs; but as a punishment to their owners,
who had not safeguarded their beasts from these offenses. Hence the
owner was more severely punished if his ox had butted anyone "yesterday
or the day before" (in which case steps might have been taken to
butting suddenly). Or again, the animal was slain in detestation of the
sin; and lest men should be horrified at the sight thereof.
Reply to Objection 12: The literal reason for this commandment, as
Rabbi Moses declares (Doct. Perplex. iii), was because the slayer was
frequently from the nearest city: wherefore the slaying of the calf was
a means of investigating the hidden murder. This was brought about in
three ways. In the first place the elders of the city swore that they
had taken every measure for safeguarding the roads. Secondly, the owner
of the heifer was indemnified for the slaying of his beast, and if the
murder was previously discovered, the beast was not slain. Thirdly, the
place, where the heifer was slain, remained uncultivated. Wherefore, in
order to avoid this twofold loss, the men of the city would readily
make known the murderer, if they knew who he was: and it would seldom
happen but that some word or sign would escape about the matter. Or
again, this was done in order to frighten people, in detestation of
murder. Because the slaying of a heifer, which is a useful animal and
full of strength, especially before it has been put under the yoke,
signified that whoever committed murder, however useful and strong he
might be, was to forfeit his life; and that, by a cruel death, which
was implied by the striking off of its head; and that the murderer, as
vile and abject, was to be cut off from the fellowship of men, which
was betokened by the fact that the heifer after being slain was left to
rot in a rough and uncultivated place.
Mystically, the heifer taken from the herd signifies the flesh of
Christ; which had not drawn a yoke, since it had done no sin; nor did
it plough the ground, i. e. it never knew the stain of revolt. The fact
of the heifer being killed in an uncultivated valley signified the
despised death of Christ, whereby all sins are washed away, and the
devil is shown to be the arch-murderer.
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Whether the judicial precepts regarding foreigners were framed in a suitable
manner?
Objection 1: It would seem that the judicial precepts regarding
foreigners were not suitably framed. For Peter said (Acts 10:34,35):
"In very deed I perceive that God is not a respecter of persons, but in
every nation, he that feareth Him and worketh justice is acceptable to
Him. " But those who are acceptable to God should not be excluded from
the Church of God. Therefore it is unsuitably commanded (Dt. 23:3) that
"the Ammonite and the Moabite, even after the tenth generation, shall
not enter into the church of the Lord for ever": whereas, on the other
hand, it is prescribed (Dt. 23:7) to be observed with regard to certain
other nations: "Thou shalt not abhor the Edomite, because he is thy
brother; nor the Egyptian because thou wast a stranger in his land.
concerning the institution of the sovereign and relating to his office,
and about the respect due to him: this is one part of the judicial
precepts. Again, certain precepts are given in respect of a man to his
fellow citizens: for instance, about buying and selling, judgments and
penalties: this is the second part of the judicial precepts. Again,
certain precepts are enjoined with regard to foreigners: for instance,
about wars waged against their foes, and about the way to receive
travelers and strangers: this is the third part of the judicial
precepts. Lastly, certain precepts are given relating to home life: for
instance, about servants, wives and children: this is the fourth part
of the judicial precepts.
Reply to Objection 1: Things pertaining to the ordering of relations
between one man and another are indeed infinite in number: yet they are
reducible to certain distinct heads, according to the different
relations in which one man stands to another, as stated above.
Reply to Objection 2: The precepts of the decalogue held the first
place in the moral order, as stated above ([2136]Q[100], A[3]): and
consequently it is fitting that other moral precepts should be
distinguished in relation to them. But the judicial and ceremonial
precepts have a different binding force, derived, not from natural
reason, but from their institution alone. Hence there is a distinct
reason for distinguishing them.
Reply to Objection 3: The Law alludes to the division of the judicial
precepts in the very things themselves which are prescribed by the
judicial precepts of the Law.
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OF THE REASON FOR THE JUDICIAL PRECEPTS (FOUR ARTICLES)
We must now consider the reason for the judicial precepts: under which
head there are four points of inquiry:
(1) Concerning the reason for the judicial precepts relating to the
rulers;
(2) Concerning the fellowship of one man with another;
(3) Concerning matters relating to foreigners;
(4) Concerning things relating to domestic matters.
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Whether the Old Law enjoined fitting precepts concerning rulers?
Objection 1: It would seem that the Old Law made unfitting precepts
concerning rulers. Because, as the Philosopher says (Polit. iii, 4),
"the ordering of the people depends mostly on the chief ruler. " But the
Law contains no precept relating to the institution of the chief ruler;
and yet we find therein prescriptions concerning the inferior rulers:
firstly (Ex. 18:21): "Provide out of all the people wise [Vulg. :
'able'] men," etc. ; again (Num. 11:16): "Gather unto Me seventy men of
the ancients of Israel"; and again (Dt. 1:13): "Let Me have from among
you wise and understanding men," etc. Therefore the Law provided
insufficiently in regard to the rulers of the people.
Objection 2: Further, "The best gives of the best," as Plato states
(Tim. ii). Now the best ordering of a state or of any nation is to be
ruled by a king: because this kind of government approaches nearest in
resemblance to the Divine government, whereby God rules the world from
the beginning. Therefore the Law should have set a king over the
people, and they should not have been allowed a choice in the matter,
as indeed they were allowed (Dt. 17:14,15): "When thou . . . shalt say:
I will set a king over me . . . thou shalt set him," etc.
Objection 3: Further, according to Mat. 12:25: "Every kingdom divided
against itself shall be made desolate": a saying which was verified in
the Jewish people, whose destruction was brought about by the division
of the kingdom. But the Law should aim chiefly at things pertaining to
the general well-being of the people. Therefore it should have
forbidden the kingdom to be divided under two kings: nor should this
have been introduced even by Divine authority; as we read of its being
introduced by the authority of the prophet Ahias the Silonite (3 Kings
11:29, seqq. ).
Objection 4: Further, just as priests are instituted for the benefit of
the people in things concerning God, as stated in Heb. 5:1; so are
rulers set up for the benefit of the people in human affairs. But
certain things were allotted as a means of livelihood for the priests
and Levites of the Law: such as the tithes and first-fruits, and many
like things. Therefore in like manner certain things should have been
determined for the livelihood of the rulers of the people: the more
that they were forbidden to accept presents, as is clearly stated in
Ex. 23:8: "You shall not [Vulg. : 'Neither shalt thou'] take bribes,
which even blind the wise, and pervert the words of the just. "
Objection 5: Further, as a kingdom is the best form of government, so
is tyranny the most corrupt. But when the Lord appointed the king, He
established a tyrannical law; for it is written (1 Kings 8:11): "This
will be the right of the king, that shall reign over you: He will take
your sons," etc. Therefore the Law made unfitting provision with regard
to the institution of rulers.
On the contrary, The people of Israel is commended for the beauty of
its order (Num. 24:5): "How beautiful are thy tabernacles, O Jacob, and
thy tents. " But the beautiful ordering of a people depends on the right
establishment of its rulers. Therefore the Law made right provision for
the people with regard to its rulers.
I answer that, Two points are to be observed concerning the right
ordering of rulers in a state or nation. One is that all should take
some share in the government: for this form of constitution ensures
peace among the people, commends itself to all, and is most enduring,
as stated in Polit. ii, 6. The other point is to be observed in respect
of the kinds of government, or the different ways in which the
constitutions are established. For whereas these differ in kind, as the
Philosopher states (Polit. iii, 5), nevertheless the first place is
held by the "kingdom," where the power of government is vested in one;
and "aristocracy," which signifies government by the best, where the
power of government is vested in a few. Accordingly, the best form of
government is in a state or kingdom, where one is given the power to
preside over all; while under him are others having governing powers:
and yet a government of this kind is shared by all, both because all
are eligible to govern, and because the rules are chosen by all. For
this is the best form of polity, being partly kingdom, since there is
one at the head of all; partly aristocracy, in so far as a number of
persons are set in authority; partly democracy, i. e. government by the
people, in so far as the rulers can be chosen from the people, and the
people have the right to choose their rulers.
Such was the form of government established by the Divine Law. For
Moses and his successors governed the people in such a way that each of
them was ruler over all; so that there was a kind of kingdom. Moreover,
seventy-two men were chosen, who were elders in virtue: for it is
written (Dt. 1:15): "I took out of your tribes wise and honorable, and
appointed them rulers": so that there was an element of aristocracy.
But it was a democratical government in so far as the rulers were
chosen from all the people; for it is written (Ex. 18:21): "Provide out
of all the people wise [Vulg. : 'able'] men," etc. ; and, again, in so
far as they were chosen by the people; wherefore it is written (Dt.
1:13): "Let me have from among you wise [Vulg. : 'able'] men," etc.
Consequently it is evident that the ordering of the rulers was well
provided for by the Law.
Reply to Objection 1: This people was governed under the special care
of God: wherefore it is written (Dt. 7:6): "The Lord thy God hath
chosen thee to be His peculiar people": and this is why the Lord
reserved to Himself the institution of the chief ruler. For this too
did Moses pray (Num. 27:16): "May the Lord the God of the spirits of
all the flesh provide a man, that may be over this multitude. " Thus by
God's orders Josue was set at the head in place of Moses; and we read
about each of the judges who succeeded Josue that God "raised . . . up
a saviour" for the people, and that "the spirit of the Lord was" in
them (Judges 3:9, 10, 15). Hence the Lord did not leave the choice of a
king to the people; but reserved this to Himself, as appears from Dt.
17:15: "Thou shalt set him whom the Lord thy God shall choose. "
Reply to Objection 2: A kingdom is the best form of government of the
people, so long as it is not corrupt. But since the power granted to a
king is so great, it easily degenerates into tyranny, unless he to whom
this power is given be a very virtuous man: for it is only the virtuous
man that conducts himself well in the midst of prosperity, as the
Philosopher observes (Ethic. iv, 3). Now perfect virtue is to be found
in few: and especially were the Jews inclined to cruelty and avarice,
which vices above all turn men into tyrants. Hence from the very first
the Lord did not set up the kingly authority with full power, but gave
them judges and governors to rule them. But afterwards when the people
asked Him to do so, being indignant with them, so to speak, He granted
them a king, as is clear from His words to Samuel (1 Kings 8:7): "They
have not rejected thee, but Me, that I should not reign over them. "
Nevertheless, as regards the appointment of a king, He did establish
the manner of election from the very beginning (Dt. 17:14, seqq. ): and
then He determined two points: first, that in choosing a king they
should wait for the Lord's decision; and that they should not make a
man of another nation king, because such kings are wont to take little
interest in the people they are set over, and consequently to have no
care for their welfare: secondly, He prescribed how the king after his
appointment should behave, in regard to himself; namely, that he should
not accumulate chariots and horses, nor wives, nor immense wealth:
because through craving for such things princes become tyrants and
forsake justice. He also appointed the manner in which they were to
conduct themselves towards God: namely, that they should continually
read and ponder on God's Law, and should ever fear and obey God.
Moreover, He decided how they should behave towards their subjects:
namely, that they should not proudly despise them, or ill-treat them,
and that they should not depart from the paths of justice.
Reply to Objection 3: The division of the kingdom, and a number of
kings, was rather a punishment inflicted on that people for their many
dissensions, specially against the just rule of David, than a benefit
conferred on them for their profit. Hence it is written (Osee 13:11):
"I will give thee a king in My wrath"; and (Osee 8:4): "They have
reigned, but not by Me: they have been princes, and I knew not. "
Reply to Objection 4: The priestly office was bequeathed by succession
from father to son: and this, in order that it might be held in greater
respect, if not any man from the people could become a priest: since
honor was given to them out of reverence for the divine worship. Hence
it was necessary to put aside certain things for them both as to tithes
and as to first-fruits, and, again, as to oblations and sacrifices,
that they might be afforded a means of livelihood. On the other hand,
the rulers, as stated above, were chosen from the whole people;
wherefore they had their own possessions, from which to derive a
living: and so much the more, since the Lord forbade even a king to
have superabundant wealth to make too much show of magnificence: both
because he could scarcely avoid the excesses of pride and tyranny,
arising from such things, and because, if the rulers were not very
rich, and if their office involved much work and anxiety, it would not
tempt the ambition of the common people; and would not become an
occasion of sedition.
Reply to Objection 5: That right was not given to the king by Divine
institution: rather was it foretold that kings would usurp that right,
by framing unjust laws, and by degenerating into tyrants who preyed on
their subjects. This is clear from the context that follows: "And you
shall be his slaves [Douay: 'servants']": which is significative of
tyranny, since a tyrant rules is subjects as though they were his
slaves. Hence Samuel spoke these words to deter them from asking for a
king; since the narrative continues: "But the people would not hear the
voice of Samuel. " It may happen, however, that even a good king,
without being a tyrant, may take away the sons, and make them tribunes
and centurions; and may take many things from his subjects in order to
secure the common weal.
__________________________________________________________________
Whether the judicial precepts were suitably framed as to the relations of
one man with another?
Objection 1: It would seem that the judicial precepts were not suitably
framed as regards the relations of one man with another. Because men
cannot live together in peace, if one man takes what belongs to
another. But this seems to have been approved by the Law: since it is
written (Dt. 23:24): "Going into thy neighbor's vineyard, thou mayest
eat as many grapes as thou pleasest. " Therefore the Old Law did not
make suitable provisions for man's peace.
Objection 2: Further, one of the chief causes of the downfall of states
has been the holding of property by women, as the Philosopher says
(Polit. ii, 6). But this was introduced by the Old Law; for it is
written (Num. 27:8): "When a man dieth without a son, his inheritance
shall pass to his daughter. " Therefore the Law made unsuitable
provision for the welfare of the people.
Objection 3: Further, it is most conducive to the preservation of human
society that men may provide themselves with necessaries by buying and
selling, as stated in Polit. i. But the Old Law took away the force of
sales; since it prescribes that in the 50th year of the jubilee all
that is sold shall return to the vendor (Lev. 25:28). Therefore in this
matter the Law gave the people an unfitting command.
Objection 4: Further, man's needs require that men should be ready to
lend: which readiness ceases if the creditors do not return the
pledges: hence it is written (Ecclus. 29:10): "Many have refused to
lend, not out of wickedness, but they were afraid to be defrauded
without cause. " And yet this was encouraged by the Law. First, because
it prescribed (Dt. 15:2): "He to whom any thing is owing from his
friend or neighbor or brother, cannot demand it again, because it is
the year of remission of the Lord"; and (Ex. 22:15) it is stated that
if a borrowed animal should die while the owner is present, the
borrower is not bound to make restitution. Secondly, because the
security acquired through the pledge is lost: for it is written (Dt.
24:10): "When thou shalt demand of thy neighbor any thing that he oweth
thee, thou shalt not go into his house to take away a pledge"; and
again (Dt. 24:12,13): "The pledge shall not lodge with thee that night,
but thou shalt restore it to him presently. " Therefore the Law made
insufficient provision in the matter of loans.
Objection 5: Further, considerable risk attaches to goods deposited
with a fraudulent depositary: wherefore great caution should be
observed in such matters: hence it is stated in 2 Mac. 3:15 that "the
priests . . . called upon Him from heaven, Who made the law concerning
things given to be kept, that He would preserve them safe, for them
that had deposited them. " But the precepts of the Old Law observed
little caution in regard to deposits: since it is prescribed (Ex.
22:10,11) that when goods deposited are lost, the owner is to stand by
the oath of the depositary. Therefore the Law made unsuitable provision
in this matter.
Objection 6: Further, just as a workman offers his work for hire, so do
men let houses and so forth. But there is no need for the tenant to pay
his rent as soon as he takes a house. Therefore it seems an
unnecessarily hard prescription (Lev. 19:13) that "the wages of him
that hath been hired by thee shall not abide with thee until morning. "
Objection 7: Further, since there is often pressing need for a judge,
it should be easy to gain access to one. It was therefore unfitting
that the Law (Dt. 17:8,9) should command them to go to a fixed place to
ask for judgment on doubtful matters.
Objection 8: Further, it is possible that not only two, but three or
more, should agree to tell a lie. Therefore it is unreasonably stated
(Dt. 19:15) that "in the mouth of two or three witnesses every word
shall stand. "
Objection 9: Further, punishment should be fixed according to the
gravity of the fault: for which reason also it is written (Dt. 25:2):
"According to the measure of the sin, shall the measure also of the
stripes be. " Yet the Law fixed unequal punishments for certain faults:
for it is written (Ex. 22:1) that the thief "shall restore five oxen
for one ox, and four sheep for one sheep. " Moreover, certain slight
offenses are severely punished: thus (Num. 15:32, seqq. ) a man is
stoned for gathering sticks on the sabbath day: and (Dt. 21:18, seqq. )
the unruly son is commanded to be stoned on account of certain small
transgressions, viz. because "he gave himself to revelling . . . and
banquetings. " Therefore the Law prescribed punishments in an
unreasonable manner.
Objection 10: Further, as Augustine says (De Civ. Dei xxi, 11), "Tully
writes that the laws recognize eight forms of punishment, indemnity,
prison, stripes, retaliation, public disgrace, exile, death, slavery. "
Now some of these were prescribed by the Law. "Indemnity," as when a
thief was condemned to make restitution fivefold or fourfold. "Prison,"
as when (Num. 15:34) a certain man is ordered to be imprisoned.
"Stripes"; thus (Dt. 25:2), "if they see that the offender be worthy of
stripes; they shall lay him down, and shall cause him to be beaten
before them. " "Public disgrace" was brought on to him who refused to
take to himself the wife of his deceased brother, for she took "off his
shoe from his foot, and" did "spit in his face" (Dt. 25:9). It
prescribed the "death" penalty, as is clear from (Lev. 20:9): "He that
curseth his father, or mother, dying let him die. " The Law also
recognized the "lex talionis," by prescribing (Ex. 21:24): "Eye for
eye, tooth for tooth. " Therefore it seems unreasonable that the Law
should not have inflicted the two other punishments, viz. "exile" and
"slavery. "
Objection 11: Further, no punishment is due except for a fault. But
dumb animals cannot commit a fault. Therefore the Law is unreasonable
in punishing them (Ex. 21:29): "If the ox . . . shall kill a man or a
woman," it "shall be stoned": and (Lev. 20:16): "The woman that shall
lie under any beast, shall be killed together with the same. " Therefore
it seems that matters pertaining to the relations of one man with
another were unsuitably regulated by the Law.
Objection 12: Further, the Lord commanded (Ex. 21:12) a murderer to be
punished with death. But the death of a dumb animal is reckoned of much
less account than the slaying of a man. Hence murder cannot be
sufficiently punished by the slaying of a dumb animal. Therefore it is
unfittingly prescribed (Dt. 21:1, 4) that "when there shall be found .
. . the corpse of a man slain, and it is not known who is guilty of the
murder . . . the ancients" of the nearest city "shall take a heifer of
the herd, that hath not drawn in the yoke, nor ploughed the ground, and
they shall bring her into a rough and stony valley, that never was
ploughed, nor sown; and there they shall strike off the head of the
heifer. "
On the contrary, It is recalled as a special blessing (Ps. 147:20) that
"He hath not done in like manner to every nation; and His judgments He
hath not made manifest to them. "
I answer that, As Augustine says (De Civ. Dei ii, 21), quoting Tully,
"a nation is a body of men united together by consent to the law and by
community of welfare.
" Consequently it is of the essence of a nation
that the mutual relations of the citizens be ordered by just laws. Now
the relations of one man with another are twofold: some are effected
under the guidance of those in authority: others are effected by the
will of private individuals. And since whatever is subject to the power
of an individual can be disposed of according to his will, hence it is
that the decision of matters between one man and another, and the
punishment of evildoers, depend on the direction of those in authority,
to whom men are subject. On the other hand, the power of private
persons is exercised over the things they possess: and consequently
their dealings with one another, as regards such things, depend on
their own will, for instance in buying, selling, giving, and so forth.
Now the Law provided sufficiently in respect of each of these relations
between one man and another. For it established judges, as is clearly
indicated in Dt. 16:18: "Thou shalt appoint judges and magistrates in
all its [Vulg. : 'thy'] gates . . . that they may judge the people with
just judgment. " It is also directed the manner of pronouncing just
judgments, according to Dt. 1:16,17: "Judge that which is just, whether
he be one of your own country or a stranger: there shall be no
difference of persons. " It also removed an occasion of pronouncing
unjust judgment, by forbidding judges to accept bribes (Ex. 23:8; Dt.
16:19). It prescribed the number of witnesses, viz. two or three: and
it appointed certain punishments to certain crimes, as we shall state
farther on (ad 10).
But with regard to possessions, it is a very good thing, says the
Philosopher (Polit. ii, 2) that the things possessed should be
distinct, and the use thereof should be partly common, and partly
granted to others by the will of the possessors. These three points
were provided for by the Law. Because, in the first place, the
possessions themselves were divided among individuals: for it is
written (Num. 33:53,54): "I have given you" the land "for a possession:
and you shall divide it among you by lot. " And since many states have
been ruined through want of regulations in the matter of possessions,
as the Philosopher observes (Polit. ii, 6); therefore the Law provided
a threefold remedy against the regularity of possessions. The first was
that they should be divided equally, wherefore it is written (Num.
33:54): "To the more you shall give a larger part, and to the fewer, a
lesser. " A second remedy was that possessions could not be alienated
for ever, but after a certain lapse of time should return to their
former owner, so as to avoid confusion of possessions (cf. ad 3). The
third remedy aimed at the removal of this confusion, and provided that
the dead should be succeeded by their next of kin: in the first place,
the son; secondly, the daughter; thirdly, the brother; fourthly, the
father's brother; fifthly, any other next of kin. Furthermore, in order
to preserve the distinction of property, the Law enacted that heiresses
should marry within their own tribe, as recorded in Num. 36:6.
Secondly, the Law commanded that, in some respects, the use of things
should belong to all in common. Firstly, as regards the care of them;
for it was prescribed (Dt. 22:1-4): "Thou shalt not pass by, if thou
seest thy brother's ox or his sheep go astray; but thou shalt bring
them back to thy brother," and in like manner as to other things.
Secondly, as regards fruits. For all alike were allowed on entering a
friend's vineyard to eat of the fruit, but not to take any away. And,
specially, with respect to the poor, it was prescribed that the
forgotten sheaves, and the bunches of grapes and fruit, should be left
behind for them (Lev. 19:9; Dt. 24:19). Moreover, whatever grew in the
seventh year was common property, as stated in Ex. 23:11 and Lev. 25:4.
Thirdly, the law recognized the transference of goods by the owner.
There was a purely gratuitous transfer: thus it is written (Dt.
14:28,29): "The third day thou shalt separate another tithe . . . and
the Levite . . . and the stranger, and the fatherless, and the widow .
. . shall come and shall eat and be filled. " And there was a transfer
for a consideration, for instance, by selling and buying, by letting
out and hiring, by loan and also by deposit, concerning all of which we
find that the Law made ample provision. Consequently it is clear that
the Old Law provided sufficiently concerning the mutual relations of
one man with another.
Reply to Objection 1: As the Apostle says (Rom. 13:8), "he that loveth
his neighbor hath fulfilled the Law": because, to wit, all the precepts
of the Law, chiefly those concerning our neighbor, seem to aim at the
end that men should love one another. Now it is an effect of love that
men give their own goods to others: because, as stated in 1 Jn. 3:17:
"He that . . . shall see his brother in need, and shall shut up his
bowels from him: how doth the charity of God abide in him? " Hence the
purpose of the Law was to accustom men to give of their own to others
readily: thus the Apostle (1 Tim. 6:18) commands the rich "to give
easily and to communicate to others. " Now a man does not give easily to
others if he will not suffer another man to take some little thing from
him without any great injury to him. And so the Law laid down that it
should be lawful for a man, on entering his neighbor's vineyard, to eat
of the fruit there: but not to carry any away, lest this should lead to
the infliction of a grievous harm, and cause a disturbance of the
peace: for among well-behaved people, the taking of a little does not
disturb the peace; in fact, it rather strengthens friendship and
accustoms men to give things to one another.
Reply to Objection 2: The Law did not prescribe that women should
succeed to their father's estate except in default of male issue:
failing which it was necessary that succession should be granted to the
female line in order to comfort the father, who would have been sad to
think that his estate would pass to strangers. Nevertheless the Law
observed due caution in the matter, by providing that those women who
succeeded to their father's estate, should marry within their own
tribe, in order to avoid confusion of tribal possessions, as stated in
Num. 36:7,8.
Reply to Objection 3: As the Philosopher says (Polit. ii, 4), the
regulation of possessions conduces much to the preservation of a state
or nation. Consequently, as he himself observes, it was forbidden by
the law in some of the heathen states, "that anyone should sell his
possessions, except to avoid a manifest loss. " For if possessions were
to be sold indiscriminately, they might happen to come into the hands
of a few: so that it might become necessary for a state or country to
become void of inhabitants. Hence the Old Law, in order to remove this
danger, ordered things in such a way that while provision was made for
men's needs, by allowing the sale of possessions to avail for a certain
period, at the same time the said danger was removed, by prescribing
the return of those possessions after that period had elapsed. The
reason for this law was to prevent confusion of possessions, and to
ensure the continuance of a definite distinction among the tribes.
But as the town houses were not allotted to distinct estates, therefore
the Law allowed them to be sold in perpetuity, like movable goods.
Because the number of houses in a town was not fixed, whereas there was
a fixed limit to the amount of estates, which could not be exceeded,
while the number of houses in a town could be increased. On the other
hand, houses situated not in a town, but "in a village that hath no
walls," could not be sold in perpetuity: because such houses are built
merely with a view to the cultivation and care of possessions;
wherefore the Law rightly made the same prescription in regard to both
(Lev. 25).
Reply to Objection 4: As stated above (ad 1), the purpose of the Law
was to accustom men to its precepts, so as to be ready to come to one
another's assistance: because this is a very great incentive to
friendship. The Law granted these facilities for helping others in the
matter not only of gratuitous and absolute donations, but also of
mutual transfers: because the latter kind of succor is more frequent
and benefits the greater number: and it granted facilities for this
purpose in many ways. First of all by prescribing that men should be
ready to lend, and that they should not be less inclined to do so as
the year of remission drew nigh, as stated in Dt. 15:7, seqq. Secondly,
by forbidding them to burden a man to whom they might grant a loan,
either by exacting usury, or by accepting necessities of life in
security; and by prescribing that when this had been done they should
be restored at once. For it is written (Dt. 23:19): "Thou shalt not
lend to thy brother money to usury": and (Dt. 24:6): "Thou shalt not
take the nether nor the upper millstone to pledge; for he hath pledged
his life to thee": and (Ex. 22:26): "If thou take of thy neighbor a
garment in pledge, thou shalt give it him again before sunset. "
Thirdly, by forbidding them to be importunate in exacting payment.
Hence it is written (Ex. 22:25): "If thou lend money to any of my
people that is poor that dwelleth with thee, thou shalt not be hard
upon them as an extortioner. " For this reason, too, it is enacted (Dt.
24:10,11): "When thou shalt demand of thy neighbor anything that he
oweth thee, thou shalt not go into his house to take away a pledge, but
thou shalt stand without, and he shall bring out to thee what he hath":
both because a man's house is his surest refuge, wherefore it is
offensive to a man to be set upon in his own house; and because the Law
does not allow the creditor to take away whatever he likes in security,
but rather permits the debtor to give what he needs least. Fourthly,
the Law prescribed that debts should cease together after the lapse of
seven years. For it was probable that those who could conveniently pay
their debts, would do so before the seventh year, and would not defraud
the lender without cause. But if they were altogether insolvent, there
was the same reason for remitting the debt from love for them, as there
was for renewing the loan on account of their need.
As regards animals granted in loan, the Law enacted that if, through
the neglect of the person to whom they were lent, they perished or
deteriorated in his absence, he was bound to make restitution. But if
they perished or deteriorated while he was present and taking proper
care of them, he was not bound to make restitution, especially if they
were hired for a consideration: because they might have died or
deteriorated in the same way if they had remained in possession of the
lender, so that if the animal had been saved through being lent, the
lender would have gained something by the loan which would no longer
have been gratuitous. And especially was this to be observed when
animals were hired for a consideration: because then the owner received
a certain price for the use of the animals; wherefore he had no right
to any profit, by receiving indemnity for the animal, unless the person
who had charge of it were negligent. In the case, however, of animals
not hired for a consideration, equity demanded that he should receive
something by way of restitution at least to the value of the hire of
the animal that had perished or deteriorated.
Reply to Objection 5: The difference between a loan and a deposit is
that a loan is in respect of goods transferred for the use of the
person to whom they are transferred, whereas a deposit is for the
benefit of the depositor. Hence in certain cases there was a stricter
obligation of returning a loan than of restoring goods held in deposit.
Because the latter might be lost in two ways. First, unavoidably: i. e.
either through a natural cause, for instance if an animal held in
deposit were to die or depreciate in value; or through an extrinsic
cause, for instance, if it were taken by an enemy, or devoured by a
beast (in which case, however, a man was bound to restore to the owner
what was left of the animal thus slain): whereas in the other cases
mentioned above, he was not bound to make restitution; but only to take
an oath in order to clear himself of suspicion. Secondly, the goods
deposited might be lost through an avoidable cause, for instance by
theft: and then the depositary was bound to restitution on account of
his neglect. But, as stated above (ad 4), he who held an animal on
loan, was bound to restitution, even if he were absent when it
depreciated or died: because he was held responsible for less
negligence than a depositary, who was only held responsible in case of
theft.
Reply to Objection 6: Workmen who offer their labor for hire, are poor
men who toil for their daily bread: and therefore the Law commanded
wisely that they should be paid at once, lest they should lack food.
But they who offer other commodities for hire, are wont to be rich: nor
are they in such need of their price in order to gain a livelihood: and
consequently the comparison does not hold.
Reply to Objection 7: The purpose for which judges are appointed among
men, is that they may decide doubtful points in matters of justice. Now
a matter may be doubtful in two ways. First, among simple-minded
people: and in order to remove doubts of this kind, it was prescribed
(Dt. 16:18) that "judges and magistrates" should be appointed in each
tribe, "to judge the people with just judgment. " Secondly, a matter may
be doubtful even among experts: and therefore, in order to remove
doubts of this kind, the Law prescribed that all should foregather in
some chief place chosen by God, where there would be both the
high-priest, who would decide doubtful matters relating to the
ceremonies of divine worship; and the chief judge of the people, who
would decide matters relating to the judgments of men: just as even now
cases are taken from a lower to a higher court either by appeal or by
consultation. Hence it is written (Dt. 17:8,9): "If thou perceive that
there be among you a hard and doubtful matter in judgment . . . and
thou see that the words of the judges within thy gates do vary; arise
and go up to the place, which the Lord thy God shall choose; and thou
shalt come to the priests of the Levitical race, and to the judge that
shall be at that time. " But such like doubtful matters did not often
occur for judgment: wherefore the people were not burdened on this
account.
Reply to Objection 8: In the business affairs of men, there is no such
thing as demonstrative and infallible proof, and we must be content
with a certain conjectural probability, such as that which an orator
employs to persuade. Consequently, although it is quite possible for
two or three witnesses to agree to a falsehood, yet it is neither easy
nor probable that they succeed in so doing: wherefore their testimony
is taken as being true, especially if they do not waver in giving it,
or are not otherwise suspect. Moreover, in order that witnesses might
not easily depart from the truth, the Law commanded that they should be
most carefully examined, and that those who were found untruthful
should be severely punished, as stated in Dt. 19:16, seqq.
There was, however, a reason for fixing on this particular number, in
token of the unerring truth of the Divine Persons, Who are sometimes
mentioned as two, because the Holy Ghost is the bond of the other two
Persons; and sometimes as three: as Augustine observes on Jn. 8:17: "In
your law it is written that the testimony of two men is true. "
Reply to Objection 9: A severe punishment is inflicted not only on
account of the gravity of a fault, but also for other reasons. First,
on account of the greatness of the sin, because a greater sin, other
things being equal, deserves a greater punishment. Secondly, on account
of a habitual sin, since men are not easily cured of habitual sin
except by severe punishments. Thirdly, on account of a great desire for
or a great pleasure in the sin: for men are not easily deterred from
such sins unless they be severely punished. Fourthly, on account of the
facility of committing a sin and of concealing it: for such like sins,
when discovered, should be more severely punished in order to deter
others from committing them.
Again, with regard to the greatness of a sin, four degrees may be
observed, even in respect of one single deed. The first is when a sin
is committed unwillingly; because then, if the sin be altogether
involuntary, man is altogether excused from punishment; for it is
written (Dt. 22:25, seqq. ) that a damsel who suffers violence in a
field is not guilty of death, because "she cried, and there was no man
to help her. " But if a man sinned in any way voluntarily, and yet
through weakness, as for instance when a man sins from passion, the sin
is diminished: and the punishment, according to true judgment, should
be diminished also; unless perchance the common weal requires that the
sin be severely punished in order to deter others from committing such
sins, as stated above. The second degree is when a man sins through
ignorance: and then he was held to be guilty to a certain extent, on
account of his negligence in acquiring knowledge: yet he was not
punished by the judges but expiated his sin by sacrifices. Hence it is
written (Lev. 4:2): "The soul that sinneth through ignorance," etc.
This is, however, to be taken as applying to ignorance of fact; and not
to ignorance of the Divine precept, which all were bound to know. The
third degree was when a man sinned from pride, i. e. through deliberate
choice or malice: and then he was punished according to the greatness
of the sin [*Cf. Dt. 25:2]. The fourth degree was when a man sinned
from stubbornness or obstinacy: and then he was to be utterly cut off
as a rebel and a destroyer of the commandment of the Law [*Cf. Num.
15:30,31].
Accordingly we must say that, in appointing the punishment for theft,
the Law considered what would be likely to happen most frequently (Ex.
22:1-9): wherefore, as regards theft of other things which can easily
be safeguarded from a thief, the thief restored only twice their value.
But sheep cannot be easily safeguarded from a thief, because they graze
in the fields: wherefore it happened more frequently that sheep were
stolen in the fields. Consequently the Law inflicted a heavier penalty,
by ordering four sheep to be restored for the theft of one. As to
cattle, they were yet more difficult to safeguard, because they are
kept in the fields, and do not graze in flocks as sheep do; wherefore a
yet more heavy penalty was inflicted in their regard, so that five oxen
were to be restored for one ox. And this I say, unless perchance the
animal itself were discovered in the thief's possession: because in
that case he had to restore only twice the number, as in the case of
other thefts: for there was reason to presume that he intended to
restore the animal, since he kept it alive. Again, we might say,
according to a gloss, that "a cow is useful in five ways: it may be
used for sacrifice, for ploughing, for food, for milk, and its hide is
employed for various purposes": and therefore for one cow five had to
be restored. But the sheep was useful in four ways: "for sacrifice, for
meat, for milk, and for its wool. " The unruly son was slain, not
because he ate and drank: but on account of his stubbornness and
rebellion, which was always punished by death, as stated above. As to
the man who gathered sticks on the sabbath, he was stoned as a breaker
of the Law, which commanded the sabbath to be observed, to testify the
belief in the newness of the world, as stated above ([2137]Q[100],
A[5]): wherefore he was slain as an unbeliever.
Reply to Objection 10: The Old Law inflicted the death penalty for the
more grievous crimes, viz. for those which are committed against God,
and for murder, for stealing a man, irreverence towards one's parents,
adultery and incest. In the case of thief of other things it inflicted
punishment by indemnification: while in the case of blows and
mutilation it authorized punishment by retaliation; and likewise for
the sin of bearing false witness. In other faults of less degree it
prescribed the punishment of stripes or of public disgrace.
The punishment of slavery was prescribed by the Law in two cases.
First, in the case of a slave who was unwilling to avail himself of the
privilege granted by the Law, whereby he was free to depart in the
seventh year of remission: wherefore he was punished by remaining a
slave for ever. Secondly, in the case of a thief, who had not wherewith
to make restitution, as stated in Ex. 22:3.
The punishment of absolute exile was not prescribed by the Law: because
God was worshipped by that people alone, whereas all other nations were
given to idolatry: wherefore if any man were exiled from that people
absolutely, he would be in danger of falling into idolatry. For this
reason it is related (1 Kings 26:19) that David said to Saul: "They are
cursed in the sight of the Lord, who have case me out this day, that I
should not dwell in the inheritance of the Lord, saying: Go, serve
strange gods. " There was, however, a restricted sort of exile: for it
is written in Dt. 19:4 [*Cf. Num. 35:25] that "he that striketh [Vulg. :
'killeth'] his neighbor ignorantly, and is proved to have had no hatred
against him, shall flee to one of the cities" of refuge and "abide
there until the death of the high-priest. " For then it became lawful
for him to return home, because when the whole people thus suffered a
loss they forgot their private quarrels, so that the next of kin of the
slain were not so eager to kill the slayer.
Reply to Objection 11: Dumb animals were ordered to be slain, not on
account of any fault of theirs; but as a punishment to their owners,
who had not safeguarded their beasts from these offenses. Hence the
owner was more severely punished if his ox had butted anyone "yesterday
or the day before" (in which case steps might have been taken to
butting suddenly). Or again, the animal was slain in detestation of the
sin; and lest men should be horrified at the sight thereof.
Reply to Objection 12: The literal reason for this commandment, as
Rabbi Moses declares (Doct. Perplex. iii), was because the slayer was
frequently from the nearest city: wherefore the slaying of the calf was
a means of investigating the hidden murder. This was brought about in
three ways. In the first place the elders of the city swore that they
had taken every measure for safeguarding the roads. Secondly, the owner
of the heifer was indemnified for the slaying of his beast, and if the
murder was previously discovered, the beast was not slain. Thirdly, the
place, where the heifer was slain, remained uncultivated. Wherefore, in
order to avoid this twofold loss, the men of the city would readily
make known the murderer, if they knew who he was: and it would seldom
happen but that some word or sign would escape about the matter. Or
again, this was done in order to frighten people, in detestation of
murder. Because the slaying of a heifer, which is a useful animal and
full of strength, especially before it has been put under the yoke,
signified that whoever committed murder, however useful and strong he
might be, was to forfeit his life; and that, by a cruel death, which
was implied by the striking off of its head; and that the murderer, as
vile and abject, was to be cut off from the fellowship of men, which
was betokened by the fact that the heifer after being slain was left to
rot in a rough and uncultivated place.
Mystically, the heifer taken from the herd signifies the flesh of
Christ; which had not drawn a yoke, since it had done no sin; nor did
it plough the ground, i. e. it never knew the stain of revolt. The fact
of the heifer being killed in an uncultivated valley signified the
despised death of Christ, whereby all sins are washed away, and the
devil is shown to be the arch-murderer.
__________________________________________________________________
Whether the judicial precepts regarding foreigners were framed in a suitable
manner?
Objection 1: It would seem that the judicial precepts regarding
foreigners were not suitably framed. For Peter said (Acts 10:34,35):
"In very deed I perceive that God is not a respecter of persons, but in
every nation, he that feareth Him and worketh justice is acceptable to
Him. " But those who are acceptable to God should not be excluded from
the Church of God. Therefore it is unsuitably commanded (Dt. 23:3) that
"the Ammonite and the Moabite, even after the tenth generation, shall
not enter into the church of the Lord for ever": whereas, on the other
hand, it is prescribed (Dt. 23:7) to be observed with regard to certain
other nations: "Thou shalt not abhor the Edomite, because he is thy
brother; nor the Egyptian because thou wast a stranger in his land.
