Aquinas on the Old Law's Judicial Precepts (q.105 a.2): Deposits, Wages, Judges and Witnesses, Just Punishments, and How Well the Law Ordered Life Together

Orientation #

He picks up in the middle of the objections to an article already under way (“we can go back to the fifth”), takes objections five through twelve with their replies, then reads the body of the article, and closes with a break before the New Law (“far away from Greece now… New laws would be a little bit easy to take”).

The class, in order #

1. Deposit and loan (reply 5) — “the loan is given for the use of the one” #

Objection: a defrauded deposit threatens great danger (2 Maccabees, the priest calling down heaven’s vengeance on those who laid down law about deposits), yet Exodus 22 requires only an oath from the one with whom the deposit was made.

Reply, on one distinction: the loan is given for the use of the one who receives it; the deposit is kept for the use of the one laying it down. So the borrower is more bound to return than the depositary.

• A deposit lost by an inevitable cause — natural (the animal weakened or died) or extrinsic (captured by enemies, eaten by a beast) — binds him only to hand over what remains of the killed animal, and otherwise to an oath purging suspicion of fraud.
• Lost by an avoidable cause (theft), through negligence in guarding, he must restore.
• The borrower must restore even if the animal dies in his absence; the depositary is held for a lesser negligence, and only in the case of theft.

Example attached to the inevitable/extrinsic case: his son-in-law’s dog ate two of his daughter’s chickens while visiting — no payment, no quarrel; “I should tell them to read this.” Aside on bad dogs: one ate a thousand-dollar check, and the owner cut the dog open.

Aside: he recalls the treatise on justice in moral theology, the endless maze of contracts, “the most depressing part”; a student’s reply, and his agreement — just apply the general principles.

2. Wages of the hired man (reply 6) — “you would not hold off the wage” #

Objection: one who locat his works (translated in class: lets, rents, leases) is like one who lets a house — and the rent of a house need not be paid at once; so Leviticus 19’s command not to hold back the hireling’s wage till morning is exceedingly hard.

Reply: hirelings are paupers living on their daily labour for their daily food, so the law orders immediate payment lest they lack food; those who rent out other things are usually rich and do not need the price for daily food. Not the same ratio in both.

3. Why one place for hard cases (reply 7) — “run back to the place chosen” #

Objection: since need of judges arises often, access should be easy, so requiring men to go to one place is unsuitable.

Reply: judges exist to determine what is ambiguous, and something can be ambiguous in two ways:

1. among ordinary civil-minded people — hence judges and magistrates in every tribe, judging in the gates;
2. even among the experienced (periti) — hence recourse to the place chosen by God, where the high priest settled doubts about ceremonies and worship and the supreme judge settled the judgments of men (Deuteronomy 17). Such cases do not arise frequently, so the people are not weighed down.

He compares this to appeal from inferior to superior judges — “that’s Supreme Court” — and recalls that De Koninck and Dionne were periti at the Second Vatican Council.

4. Two or three witnesses (reply 8) — “in human matters, there cannot be had” #

Objection: three or many can conspire in a lie, so Deuteronomy 19’s “in the mouth of two or three witnesses” is unsuitable. He notes he has always wondered about this one.

Reply: in human matters there cannot be had a probatio demonstrativa and infallible; a conjectura suffices, the probable guess by which the rhetorician persuades. It is possible but neither easy nor probable that two or three agree in a lie — and their testimony is taken as true especially if they do not vacillate and are not otherwise suspect. The law also has witnesses diligently examined and liars gravely punished (Deuteronomy).

Boundary case the class supplies: Susanna and the two elders — separated, their testimonies did not agree.

Further, mystical reason: the number signifies the infallible truth of the divine persons, numbered sometimes as two (the Holy Spirit being the connection of the two), sometimes as three, per Augustine, “in your law is written that the testimony of two men is true.” Aside: Thomas returns to this text when treating why Christ was three days in the tomb — the perfection of the number three, and one day with two nights, God by His one light curing our two darknesses — and there he breaks off, saying many other things could be added.

5. Unequal punishments for equal guilt (objection and reply 9) — “not only on account of the gravity” #

Objection, which he calls a good one: punishment should be taxed by the quantity of guilt (Deuteronomy 25: pro mensura peccati erit et plagarum modus; he notes modus always in terms of measure — Shakespeare’s Measure for Measure). Yet Exodus 22 has five oxen for one ox and four sheep for one sheep; and light sins get grave punishment — stoning for gathering wood on the Sabbath, stoning for the disobedient son given to eating and living it up.

Reply, first part: a grave punishment is inflicted not only for gravity of guilt but for four causes —

1. the quantity of the sin (greater sin, other things equal, heavier punishment);
2. the customariness of the sin (men are not easily withdrawn from habitual sins except by grave punishments);
3. great concupiscence or pleasure in the sin (same reason);
4. the easiness of committing it and of hiding it — such sins, when manifested, are punished more, to the terror of others.

Reply, second part: a fourfold grade in the quantity of one and the same deed —

1. involuntary: if altogether involuntary, wholly excused (Deuteronomy 22, the girl oppressed in the field who cried out and no one was there); if voluntary but from weakness, as sinning from passion, the sin and the punishment are diminished — unless for the common usefulness the punishment is increased to draw men from such sins;
2. from ignorance: in some way guilty for neglecting to learn, but not to be punished by judges — he expiates by sacrifice (Leviticus 4). This is ignorance of fact, not of the divine precepts, which all are held to know. His example: “I didn’t know it was Friday when I ate the double cheeseburger” — and the woman on an airplane who ate meat on a Friday and was scared stiff the plane would go down;
3. from pride, i.e. certain choice or certain malice: punished according to the quantity of the crime;
4. from stubbornness and pertinacity: as a rebel and destroyer of the order of the law, he ought to be killed. “Tough guy, this Thomas here.”

Reply, third part, applying this to theft: law considers what can frequently happen. Things easily guarded: twofold restitution. Sheep, fed in the fields and so frequently stolen: fourfold. Cattle, harder to guard, in the fields and not feeding together: fivefold. Unless the animal is found alive — then only double is restored, since keeping it alive presumes he meant to restore it. Or, per the gloss, the ox has five uses (sacrifice, food/meat, milk, hide, and labour), the sheep four. The contumacious son is put to death not for eating and drinking but for his rebellion and contumacia; the wood-gatherer is stoned as a violator of the law, the Sabbath being the commemoration of the faith of the world’s creation — so he is killed as an unbeliever, “like an apostate.”

6. Cicero’s eight kinds of punishment (objection and reply 10) — “eight genera punishments in the law” #

Objection: Augustine, City of God XXI, takes from Tully eight kinds of punishment — damnum (loss, as in fourfold and fivefold restitution), vincula (prison), verbera (blows, the one judged worthy of stripes, prostrated and beaten), talio (eye for eye, tooth for tooth), ignominia (disgrace, for the man refusing his dead brother’s wife, whose shoe is taken and whose face is spat in), death (he who curses father or mother shall die the death), exile, slavery. The Old Law uses only six; exile and slavery are missing. (His count and Thomas’s agree: eight.)

Reply: the Law inflicts death for graver crimes — sins against God, homicide, theft of men (kidnapping), irreverence to parents, adultery, incest; damnum for other thefts; talio for striking and mutilating, and for false testimony; flagellation or ignominy for lesser faults. Slavery it does induce, in two cases: the servant who refuses the benefit of release in the seventh year and so remains a perpetual servant (he asks: why would he not want to be free?), and the thief who has nothing with which to restore. Exile it does not establish universally, because in that people alone God was worshipped and all other peoples were corrupted by idolatry — universal exclusion would give occasion of idolatry: David to Saul (1 Kings 26), “cursed are they who cast me out today… saying, Go serve other gods.” A particular exile there was: the unintentional killer, proved to have had no hatred, flees to a city of refuge until the death of the high priest, by which time private angers are sedated and the dead man’s kin are no longer prone to kill him.

Asides: a student’s question about the debtor in jail who cannot pay, left without an answer.

7. Killing the animal (objection and reply 11) — “the brute animals cannot have guilt” #

Objection: punishment is owed only to guilt; brutes have no guilt; yet Exodus 21 stones the goring ox, and Leviticus 20 kills the beast along with the woman who lies with it.

Reply: brutes are killed not for their guilt but in punishment of their owners, who did not guard them from such wrongs — hence the greater penalty when the ox had gored before, on the second or third day previous, since steps might have been taken to avoid the danger. Or animals are killed in detestation of the sin, lest their very sight strike horror in men.

Aside, on animals seeming to know: their own cat, forbidden to chase birds because the neighbour was a bird-lover, was given chicken at dinner and ran off with it into the bushes, as though expecting punishment for eating bird meat. And the boiling of a bird skeleton on his mother’s stove, for a comparative-anatomy project (frog skeleton easy; Warren Murray had a bat from the attic; the neighbour boy shot him a bird) — the bird-loving neighbour walked into the kitchen asking what was cooking. “That’s one of the reasons why philosophers…”

8. The heifer in the valley (objection and reply 12) — “the literal reason for that command” #

Objection: homicide is punished by the man’s death (Exodus 21); the killing of a brute is less than the killing of a man and cannot recompense it; yet Deuteronomy 21 orders, for an unsolved murder, that the elders of the nearest city take a calf from the herd that has not drawn in the yoke, lead it to a rough, stony, unploughed valley, and kill it there.

Reply, literal (Rabbi Moses): the killer was frequently of that city, so the rite brought about three things — the elders swore nothing was overlooked in guarding the ways; the city lost the animal, since it would not have been killed had the homicide been discovered first; and the place stayed uncultivated. To avoid both losses the men of the city would readily make the homicide known, and rarely would the rite have to happen — and it was also done for terror and detestation of homicide, since killing a useful calf before it laboured under the yoke signified that whoever commits homicide, however useful and strong, shall be killed, by the cruel death of beheading, and cast out as vile from the good sorts of men, as the animal killed in the stony place rots there.

Reply, mystical: the calf signifies the flesh of Christ, which draws no yoke of sin and breaks up no ground (admits no stain of sedition); its being killed in an uncultivated land signifies the despised death of Christ, by which all sins are purged and the devil is shown to be the author of homicide. “That’s a mouthful too.”

9. The body of the article, read last — “the people is a kind of definition” #

From Augustine, City of God II, citing Tully: a people is a multitude brought together, associated by the consent of law and by common usefulness. Hence to the notion of a people belongs the communication of men with one another by just precepts of law. Two comings-together:

1. by the authority of princes, to whom men are subject: hence judgments are exercised and punishments inflicted on malefactors;
2. by the private will of private persons, to whose power possessions are subject: hence buying, selling, giving and the like.

The Law orders both sufficiently. For the first: it establishes judges and magistrates in all the gates (Deuteronomy 16:18); it institutes a just order of judgment — judge justly, citizen or foreigner, with no respect of persons — and removes occasions of unjust judgment by forbidding judges to take gifts (he recalls a Shakespeare scene where a magistrate’s servant urges a little favour for a friend, and the magistrate says “okay, okay, that will do”); it fixes the number of witnesses at two or three (Deuteronomy 17) and assigns punishments to various crimes.

For the second: as Aristotle says in Politics II, it is best that possessions be distinct, and their use partly common, partly communicated by the will of the possessors — and all three are in the Law.

• Possessions divided: the land given in possession, divided by lot. Since cities are destroyed by irregularity of possessions (Politics II), a threefold remedy: (a) division equal to the number of men — to the many a wider share, to the fewer a narrower (Numbers); (b) possessions not alienated forever but restored at a certain time, lest the lineage of possessions be confounded; (c) nearest kin succeed the dying — son, daughter, brothers, patrui (he asks what comes after brothers), then the kin, and finally any neighbour; and, to conserve the distinction of tribes, heiresses marry within their tribe (Numbers 36).
• Use made common: as regards care — you shall not see your brother’s ox or sheep astray but bring it back (Deuteronomy); as regards fruit — it was licit to enter a friend’s vineyard and eat, so long as nothing was carried out; and for the poor especially, the forgotten sheaves, the fruits and branches left, and what grows of itself in the seventh year. (He notes they had been talking about Ruth earlier.)
• Communication made by the lords of things: the firstfruits; the third-year tithe separated for the Levite, the foreigner, the orphan and the widow, that they might eat and be filled; and communication with recompense — selling and buying, leasing and conduction, loan and deposit.

Conclusion: the Old Law sufficiently ordered the behaviour of that people.

His words #

• locante — of one who “lets,” rents or leases; rendered in class by the students as letting houses.
• peritus / periti — the experienced; he glosses it by the periti of the Second Vatican Council.
• probatio demonstrativa — demonstrative proof, not to be had in human matters.
• conjectura — a guess, a probable guess, “according to which the rhetorician persuades.”
• pro mensura peccati erit et plagarum modus — the mode of the stripes will be according to the measure of the sin; modus always in terms of measure.
• contumax / contumacia — stubbornness and pertinacity, for which the son is put to death, not for eating and drinking.
• damnum, vincula, verbera, talio, ignominia — loss, chains, blows, retaliation in kind, disgrace: five of Cicero’s eight genera.
• primitivitis [ed.: primitiae, firstfruits] — offered along with the third-year tithe.

Texts #

Read in class: Thomas Aquinas, Summa Theologiae I-II, q. 105, a. 2 (inferred), objections and replies 5–12, then the body. Within it: Exodus 21; Exodus 22; Leviticus 4; Leviticus 19; Leviticus 20; Numbers 36; Deuteronomy 16:18; 17; 19; 21; 22; 25; 1 Kings 26 (Vulgate); 2 Maccabees; Augustine, City of God II (on Tully’s definition of a people) and XXI (on the eight punishments); Aristotle, Politics II.

Mentioned: Daniel — Susanna and the two elders; the gloss on the five uses of the ox; Rabbi Moses on the heifer; Thomas on Christ’s three days in the tomb; the Book of Ruth; a scene from Shakespeare on a magistrate and gifts, and Measure for Measure by title.

His questions #

• How do you translate locante? — Letting, renting or leasing houses.
• Why is the depositary bound less than the borrower? — Because the loan is for the receiver’s use, the deposit for the depositor’s.
• Why must the hireling be paid at once and not the house-renter? — The hireling is a pauper living on daily labour for daily food; landlords are usually rich.
• Must all hard cases go to one place? — Only the ones doubtful even to the experienced; ordinary doubts are settled by judges in every tribe, and such cases are rare.
• Can two or three witnesses not conspire in a lie? — Possible but neither easy nor probable; human matters admit only probable conjecture, not demonstration.
• Why unequal punishments for equal guilt? — Because custom, pleasure, easiness of commission and concealment, and the common usefulness also call for grave punishment; and the law legislates for what frequently happens.
• Why does the Old Law not use exile? — Because only that people worshipped God; universal exile would give occasion of idolatry. Particular exile it does have, in the cities of refuge.
• Why kill the ox or the beast, which cannot be guilty? — Not for its guilt but in punishment of the owner who failed to guard it, or in detestation of the sin.
• Why would a servant refuse to go free in the seventh year? — Left open (“it’s kind of strange”).
• What are we supposed to think about the man in jail who cannot pay? — Left open.
• What comes after brothers in the order of succession? — Patrui, then the kin, then any neighbour.