Summa Theologica, Part I-II (Pars Prima Secundae) / From the Complete American Edition

by Saint Aquinas Thomas

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 Deut. 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 Deut. 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; Deut. 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 irregularity 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 (Deut. 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; Deut. 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 (Deut. 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 Obj. 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 John 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 Obj. 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 Obj. 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 Obj. 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 Deut. 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 (Deut. 23:19): "Thou shalt not lend to thy brother money to usury": and (Deut. 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 (Deut. 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.