Reply Obj. 5: The difference between a loan and a deposit is that a loan is in respect of goods transferred for the use of the person to whom they are transferred, whereas a deposit is for the benefit of the depositor. Hence in certain cases there was a stricter obligation of returning a loan than of restoring goods held in deposit. Because the latter might be lost in two ways. First, unavoidably: i.e. either through a natural cause, for instance if an animal held in deposit were to die or depreciate in value; or through an extrinsic cause, for instance, if it were taken by an enemy, or devoured by a beast (in which case, however, a man was bound to restore to the owner what was left of the animal thus slain): whereas in the other cases mentioned above, he was not bound to make restitution; but only to take an oath in order to clear himself of suspicion. Secondly, the goods deposited might be lost through an avoidable cause, for instance by theft: and then the depositary was bound to restitution on account of his neglect. But, as stated above (ad 4), he who held an animal on loan, was bound to restitution, even if he were absent when it depreciated or died: because he was held responsible for less negligence than a depositary, who was only held responsible in case of theft.
Reply Obj. 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 Obj. 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 (Deut. 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 (Deut. 17:8, 9): "If thou perceive that there be among you a hard and doubtful matter in judgment . . . and thou see that the words of the judges within thy gates do vary; arise and go up to the place, which the Lord thy God shall choose; and thou shalt come to the priests of the Levitical race, and to the judge that shall be at that time." But such like doubtful matters did not often occur for judgment: wherefore the people were not burdened on this account.
Reply Obj. 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 Deut. 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 John 8:17: "In your law it is written that the testimony of two men is true."
Reply Obj. 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 (Deut. 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. Deut. 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 (Q. 100, A. 5): wherefore he was slain as an unbeliever.
Reply Obj. 10: The Old Law inflicted the death penalty for the more grievous crimes, viz. for those which are committed against God, and for murder, for stealing a man, irreverence towards one's parents, adultery and incest. In the case of thief of other things it inflicted punishment by indemnification: while in the case of blows and mutilation it authorized punishment by retaliation; and likewise for the sin of bearing false witness. In other faults of less degree it prescribed the punishment of stripes or of public disgrace.
The punishment of slavery was prescribed by the Law in two cases. First, in the case of a slave who was unwilling to avail himself of the privilege granted by the Law, whereby he was free to depart in the seventh year of remission: wherefore he was punished by remaining a slave for ever. Secondly, in the case of a thief, who had not wherewith to make restitution, as stated in Ex. 22:3.