QUESTION 105: OF THE REASON FOR THE JUDICIAL PRECEPTS
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
(2) Concerning the fellowship of one man with another;
(3) Concerning matters relating to foreigners;
(4) Concerning things relating to domestic matters.
Article 1: 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 Mt. 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 Kgs. 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 Kgs. 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 (Jgs 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 Kgs. 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.
Article 2: 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
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 Mach 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
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 1:: 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 1:: 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 1:: 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
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
Reply to Objection 1: As the Apostle says (Rm. 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
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
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 (Question , Article ): wherefore he was slain as an unbeliever.
Reply to Objection 1:: 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 Kgs. 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 1:: 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 1:: 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.
Article 3: 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."
Objection 2: Further, we do not deserve to be punished for those things which
are not in our power. But it is not in man's power to be an eunuch, or
born of a prostitute. Therefore it is unsuitably commanded (Dt. 23:1,2)
that "an eunuch and one born of a prostitute shalt not enter into the
church of the Lord."
Objection 3: Further, the Old Law mercifully forbade strangers to be molested:
for it is written (Ex. 22:21): "Thou shalt not molest a stranger, nor
afflict him; for yourselves also were strangers in the land of Egypt":
and (Ex. 23:9): "Thou shalt not molest a stranger, for you know the
hearts of strangers, for you also were strangers in the land of Egypt."
But it is an affliction to be burdened with usury. Therefore the Law
unsuitably permitted them (Dt. 23:19,20) to lend money to the stranger
Objection 4: Further, men are much more akin to us than trees. But we should
show greater care and love for these things that are nearest to us,
according to Ecclus. 13:19: "Every beast loveth its like: so also every
man him that is nearest to himself." Therefore the Lord unsuitably
commanded (Dt. 20:13-19) that all the inhabitants of a captured hostile
city were to be slain, but that the fruit-trees should not be cut down.
Objection 5: Further, every one should prefer the common good of virtue to the good of the individual. But the common good is sought in a war which men fight against their enemies. Therefore it is unsuitably commanded (Dt. 20:5-7) that certain men should be sent home, for instance a man that had built a new house, or who had planted a vineyard, or who had married a wife.
Objection 6: Further, no man should profit by his own fault. But it is a man's
fault if he be timid or faint-hearted: since this is contrary to the
virtue of fortitude. Therefore the timid and faint-hearted are
unfittingly excused from the toil of battle (Dt. 20:8).
On the contrary, Divine Wisdom declares (Prov. 8:8): "All my words are
just, there is nothing wicked nor perverse in them."
I answer that, Man's relations with foreigners are twofold: peaceful,
and hostile: and in directing both kinds of relation the Law contained
suitable precepts. For the Jews were offered three opportunities of
peaceful relations with foreigners. First, when foreigners passed through
their land as travelers. Secondly, when they came to dwell in their land
as newcomers. And in both these respects the Law made kind provision in
its precepts: for it is written (Ex. 22:21): "Thou shalt not molest a
stranger [advenam]"; and again (Ex. 22:9): "Thou shalt not molest a
stranger [peregrino]." Thirdly, when any foreigners wished to be admitted
entirely to their fellowship and mode of worship. With regard to these a
certain order was observed. For they were not at once admitted to
citizenship: just as it was law with some nations that no one was deemed
a citizen except after two or three generations, as the Philosopher says
(Polit. iii, 1). The reason for this was that if foreigners were allowed
to meddle with the affairs of a nation as soon as they settled down in
its midst, many dangers might occur, since the foreigners not yet having
the common good firmly at heart might attempt something hurtful to the
people. Hence it was that the Law prescribed in respect of certain
nations that had close relations with the Jews (viz., the Egyptians among
whom they were born and educated, and the Idumeans, the children of Esau,
Jacob's brother), that they should be admitted to the fellowship of the
people after the third generation; whereas others (with whom their
relations had been hostile, such as the Ammonites and Moabites) were
never to be admitted to citizenship; while the Amalekites, who were yet
more hostile to them, and had no fellowship of kindred with them, were to
be held as foes in perpetuity: for it is written (Ex. 17:16): "The war of
the Lord shall be against Amalec from generation to generation."
In like manner with regard to hostile relations with foreigners, the Law
contained suitable precepts. For, in the first place, it commanded that
war should be declared for a just cause: thus it is commanded (Dt. 20:10)
that when they advanced to besiege a city, they should at first make an
offer of peace. Secondly, it enjoined that when once they had entered on
a war they should undauntedly persevere in it, putting their trust in
God. And in order that they might be the more heedful of this command, it
ordered that on the approach of battle the priest should hearten them by
promising them God's aid. Thirdly, it prescribed the removal of whatever
might prove an obstacle to the fight, and that certain men, who might be
in the way, should be sent home. Fourthly, it enjoined that they should
use moderation in pursuing the advantage of victory, by sparing women
and children, and by not cutting down fruit-trees of that country.
Reply to Objection 1: The Law excluded the men of no nation from the worship of
God and from things pertaining to the welfare of the soul: for it is
written (Ex. 12:48): "If any stranger be willing to dwell among you, and
to keep the Phase of the Lord; all his males shall first be circumcised,
and then shall he celebrate it according to the manner, and he shall be
as that which is born in the land." But in temporal matters concerning
the public life of the people, admission was not granted to everyone at
once, for the reason given above: but to some, i.e. the Egyptians and
Idumeans, in the third generation; while others were excluded in
perpetuity, in detestation of their past offense, i.e. the peoples of
Moab, Ammon, and Amalec. For just as one man is punished for a sin
committed by him, in order that others seeing this may be deterred and
refrain from sinning; so too may one nation or city be punished for a
crime, that others may refrain from similar crimes.
Nevertheless it was possible by dispensation for a man to be admitted to
citizenship on account of some act of virtue: thus it is related (Judith
14:6) that Achior, the captain of the children of Ammon, "was joined to
the people of Israel, with all the succession of his kindred." The same
applies to Ruth the Moabite who was "a virtuous woman" (Ruth 3:11):
although it may be said that this prohibition regarded men and not women,
who are not competent to be citizens absolutely speaking.
Reply to Objection 2: As the Philosopher says (Polit. iii, 3), a man is said to
be a citizen in two ways: first, simply; secondly, in a restricted sense.
A man is a citizen simply if he has all the rights of citizenship, for
instance, the right of debating or voting in the popular assembly. On the
other hand, any man may be called citizen, only in a restricted sense, if
he dwells within the state, even common people or children or old men,
who are not fit to enjoy power in matters pertaining to the common weal.
For this reason bastards, by reason of their base origin, were excluded
from the "ecclesia," i.e. from the popular assembly, down to the tenth
generation. The same applies to eunuchs, who were not competent to
receive the honor due to a father, especially among the Jews, where the
divine worship was continued through carnal generation: for even among
the heathens, those who had many children were marked with special honor,
as the Philosopher remarks (Polit. ii, 6). Nevertheless, in matters
pertaining to the grace of God, eunuchs were not discriminated from
others, as neither were strangers, as already stated: for it is written
(Iss 56:3): "Let not the son of the stranger that adhereth to the Lord
speak, saying: The Lord will divide and separate me from His people. And
let not the eunuch say: Behold I am a dry tree."
Reply to Objection 3: It was not the intention of the Law to sanction the
acceptance of usury from strangers, but only to tolerate it on account of
the proneness of the Jews to avarice; and in order to promote an amicable
feeling towards those out of whom they made a profit.
Reply to Objection 4: A distinction was observed with regard to hostile cities.
For some of them were far distant, and were not among those which had
been promised to them. When they had taken these cities, they killed all
the men who had fought against God's people; whereas the women and
children were spared. But in the neighboring cities which had been
promised to them, all were ordered to be slain, on account of their
former crimes, to punish which God sent the Israelites as executor of
Divine justice: for it is written (Dt. 9:5) "because they have done
wickedly, they are destroyed at thy coming in." The fruit-trees were
commanded to be left untouched, for the use of the people themselves, to
whom the city with its territory was destined to be subjected.
Reply to Objection 5: The builder of a new house, the planter of a vineyard, the
newly married husband, were excluded from fighting, for two reasons.
First, because man is wont to give all his affection to those things
which he has lately acquired, or is on the point of having, and
consequently he is apt to dread the loss of these above other things.
Wherefore it was likely enough that on account of this affection they
would fear death all the more, and be so much the less brave in battle.
Secondly, because, as the Philosopher says (Phys. ii, 5), "it is a
misfortune for a man if he is prevented from obtaining something good
when it is within his grasp." And so lest the surviving relations should
be the more grieved at the death of these men who had not entered into
the possession of the good things prepared for them; and also lest the
people should be horror-stricken at the sight of their misfortune: these
men were taken away from the danger of death by being removed from the
Reply to Objection 6: The timid were sent back home, not that they might be the
gainers thereby; but lest the people might be the losers by their
presence, since their timidity and flight might cause others to be afraid
and run away.
Article 4: Whether the Old Law set forth suitable precepts about the members of the household?
Objection 1: It would seem that the Old Law set forth unsuitable precepts
about the members of the household. For a slave "is in every respect his
master's property," as the Philosopher states (Polit. i, 2). But that
which is a man's property should be his always. Therefore it was
unfitting for the Law to command (Ex. 21:2) that slaves should "go out
free" in the seventh year.
Objection 2: Further, a slave is his master's property, just as an animal, e.g. an ass or an ox. But it is commanded (Dt. 22:1-3) with regard to animals, that they should be brought back to the owner if they be found going astray. Therefore it was unsuitably commanded (Dt. 23:15): "Thou shalt not deliver to his master the servant that is fled to thee."
Objection 3: Further, the Divine Law should encourage mercy more even than the
human law. But according to human laws those who ill-treat their servants
and maidservants are severely punished: and the worse treatment of all
seems to be that which results in death. Therefore it is unfittingly
commanded (Ex. 21:20,21) that "he that striketh his bondman or bondwoman
with a rod, and they die under his hands . . . if the party remain alive
a day . . . he shall not be subject to the punishment, because it is his
Objection 4: Further, the dominion of a master over his slave differs from
that of the father over his son (Polit. i, 3). But the dominion of master
over slave gives the former the right to sell his servant or maidservant.
Therefore it was unfitting for the Law to allow a man to sell his
daughter to be a servant or handmaid (Ex. 21:7).
Objection 5: Further, a father has power over his son. But he who has power
over the sinner has the right to punish him for his offenses. Therefore
it is unfittingly commanded (Dt. 21:18, seqq.) that a father should bring
his son to the ancients of the city for punishment.
Objection 6: Further, the Lord forbade them (Dt. 7:3, seqq.) to make marriages
with strange nations; and commanded the dissolution of such as had been
contracted (1 Esdras 10). Therefore it was unfitting to allow them to
marry captive women from strange nations (Dt. 21:10, seqq.).
Objection 7: Further, the Lord forbade them to marry within certain degrees of
consanguinity and affinity, according to Lev. 18. Therefore it was
unsuitably commanded (Dt. 25:5) that if any man died without issue, his
brother should marry his wife.
Objection 8: Further, as there is the greatest familiarity between man and
wife, so should there be the staunchest fidelity. But this is impossible
if the marriage bond can be sundered. Therefore it was unfitting for the
Lord to allow (Dt. 24:1-4) a man to put his wife away, by writing a bill
of divorce; and besides, that he could not take her again to wife.
Objection 9: Further, just as a wife can be faithless to her husband, so can a
slave be to his master, and a son to his father. But the Law did not
command any sacrifice to be offered in order to investigate the injury
done by a servant to his master, or by a son to his father. Therefore it
seems to have been superfluous for the Law to prescribe the "sacrifice of
jealousy" in order to investigate a wife's adultery (Num. 5:12, seqq.).
Consequently it seems that the Law put forth unsuitable judicial precepts
about the members of the household.
On the contrary, It is written (Ps. 18:10): "The judgments of the Lord
are true, justified in themselves."
I answer that, The mutual relations of the members of a household regard
everyday actions directed to the necessities of life, as the Philosopher
states (Polit. i, 1). Now the preservation of man's life may be
considered from two points of view. First, from the point of view of the
individual, i.e. in so far as man preserves his individuality: and for
the purpose of the preservation of life, considered from this standpoint,
man has at his service external goods, by means of which he provides
himself with food and clothing and other such necessaries of life: in the
handling of which he has need of servants. Secondly man's life is
preserved from the point of view of the species, by means of generation,
for which purpose man needs a wife, that she may bear him children.
Accordingly the mutual relations of the members of a household admit of a
threefold combination: viz. those of master and servant, those of husband
and wife, and those of father and son: and in respect of all these
relationships the Old Law contained fitting precepts. Thus, with regard
to servants, it commanded them to be treated with moderation---both as to
their work, lest, to wit, they should be burdened with excessive labor,
wherefore the Lord commanded (Dt. 5:14) that on the Sabbath day "thy
manservant and thy maidservant" should "rest even as thyself"---and also
as to the infliction of punishment, for it ordered those who maimed their
servants, to set them free (Ex. 21:26,27). Similar provision was made in
favor of a maidservant when married to anyone (Ex. 21:7, seqq.).
Moreover, with regard to those servants in particular who were taken from
among the people, the Law prescribed that they should go out free in the
seventh year taking whatever they brought with them, even their clothes
(Ex. 21:2, seqq.): and furthermore it was commanded (Dt. 15:13) that they
should be given provision for the journey.
With regard to wives the Law made certain prescriptions as to those who were to be taken in marriage: for instance, that they should marry a wife from their own tribe (Num. 36:6): and this lest confusion should ensue in the property of various tribes. Also that a man should marry the wife of his deceased brother when the latter died without issue, as prescribed in Dt. 25:5,6: and this in order that he who could not have successors according to carnal origin, might at least have them by a kind of adoption, and that thus the deceased might not be entirely forgotten. It also forbade them to marry certain women; to wit, women of strange nations, through fear of their losing their faith; and those of their near kindred, on account of the natural respect due to them. Furthermore it prescribed in what way wives were to be treated after marriage. To wit, that they should not be slandered without grave reason: wherefore it ordered punishment to be inflicted on the man who falsely accused his wife of a crime (Dt. 22:13, seqq.). Also that a man's hatred of his wife should not be detrimental to his son (Dt. 21:15, seqq.). Again, that a man should not ill-use his wife through hatred of her, but rather that he should write a bill of divorce and send her away (Dt. 24:1). Furthermore, in order to foster conjugal love from the very outset, it was prescribed that no public duties should be laid on a recently married man, so that he might be free to rejoice with his wife.
With regard to children, the Law commanded parents to educate them by
instructing them in the faith: hence it is written (Ex. 12:26, seqq.):
"When your children shall say to you: What is the meaning of this
service? You shall say to them: It is the victim of the passage of the
Lord." Moreover, they are commanded to teach them the rules of right
conduct: wherefore it is written (Dt. 21:20) that the parents had to say:
"He slighteth hearing our admonitions, he giveth himself to revelling and
Reply to Objection 1: As the children of Israel had been delivered by the Lord
from slavery, and for this reason were bound to the service of God, He
did not wish them to be slaves in perpetuity. Hence it is written (Lev.
25:39, seqq.): "If thy brother, constrained by poverty, sell himself to
thee, thou shalt not oppress him with the service of bondservants: but he
shall be as a hireling and a sojourner . . . for they are My servants,
and I brought them out of the land of Egypt: let them not be sold as
bondmen": and consequently, since they were slaves, not absolutely but in
a restricted sense, after a lapse of time they were set free.
Reply to Objection 2: This commandment is to be understood as referring to a
servant whom his master seeks to kill, or to help him in committing some
Reply to Objection 3: With regard to the ill-treatment of servants, the Law seems
to have taken into consideration whether it was certain or not: since if
it were certain, the Law fixed a penalty: for maiming, the penalty was
forfeiture of the servant, who was ordered to be given his liberty: while
for slaying, the punishment was that of a murderer, when the slave died
under the blow of his master. If, however, the hurt was not certain, but
only probable, the Law did not impose any penalty as regards a man's own
servant: for instance if the servant did not die at once after being
struck, but after some days: for it would be uncertain whether he died as
a result of the blows he received. For when a man struck a free man, yet
so that he did not die at once, but "walked abroad again upon his staff,"
he that struck him was quit of murder, even though afterwards he died.
Nevertheless he was bound to pay the doctor's fees incurred by the victim
of his assault. But this was not the case if a man killed his own
servant: because whatever the servant had, even his very person, was the
property of his master. Hence the reason for his not being subject to a
pecuniary penalty is set down as being "because it is his money."
Reply to Objection 4: As stated above (ad 1), no Jew could own a Jew as a slave
absolutely: but only in a restricted sense, as a hireling for a fixed
time. And in this way the Law permitted that through stress of poverty a
man might sell his son or daughter. This is shown by the very words of
the Law, where we read: "If any man sell his daughter to be a servant,
she shall not go out as bondwomen are wont to go out." Moreover, in this
way a man might sell not only his son, but even himself, rather as a
hireling than as a slave, according to Lev. 25:39,40: "If thy brother,
constrained by poverty, sell himself to thee, thou shalt not oppress him
with the service of bondservants: but he shall be as a hireling and a
Reply to Objection 5: As the Philosopher says (Ethic. x, 9), the paternal
authority has the power only of admonition; but not that of coercion,
whereby rebellious and headstrong persons can be compelled. Hence in this
case the Lord commanded the stubborn son to be punished by the rulers of
Reply to Objection 6: The Lord forbade them to marry strange women on account of
the danger of seduction, lest they should be led astray into idolatry.
And specially did this prohibition apply with respect to those nations
who dwelt near them, because it was more probable that they would adopt
their religious practices. When, however, the woman was willing to
renounce idolatry, and become an adherent of the Law, it was lawful to
take her in marriage: as was the case with Ruth whom Booz married.
Wherefore she said to her mother-in-law (Ruth 1:16): "Thy people shall be
my people, and thy God my God." Accordingly it was not permitted to marry
a captive woman unless she first shaved her hair, and pared her nails,
and put off the raiment wherein she was taken, and mourned for her father
and mother, in token that she renounced idolatry for ever.
Reply to Objection 7: As Chrysostom says (Hom. xlviii super Matth.), "because
death was an unmitigated evil for the Jews, who did everything with a
view to the present life, it was ordained that children should be born to
the dead man through his brother: thus affording a certain mitigation to
his death. It was not, however, ordained that any other than his brother
or one next of kin should marry the wife of the deceased, because" the
offspring of this union "would not be looked upon as that of the
deceased: and moreover, a stranger would not be under the obligation to
support the household of the deceased, as his brother would be bound to
do from motives of justice on account of his relationship." Hence it is
evident that in marrying the wife of his dead brother, he took his dead
Reply to Objection 8: The Law permitted a wife to be divorced, not as though it
were just absolutely speaking, but on account of the Jews' hardness of
heart, as Our Lord declared (Mt. 19:8). Of this, however, we must speak
more fully in the treatise on Matrimony (SP, Question ).
Reply to Objection 9: Wives break their conjugal faith by adultery, both easily,
for motives of pleasure, and hiddenly, since "the eye of the adulterer
observeth darkness" (Job 24:15). But this does not apply to a son in
respect of his father, or to a servant in respect of his master: because
the latter infidelity is not the result of the lust of pleasure, but
rather of malice: nor can it remain hidden like the infidelity of an