Reply Obj. 2: It is one thing to judge of things and another to judge of men. For when we judge of things, there is no question of the good or evil of the thing about which we are judging, since it will take no harm no matter what kind of judgment we form about it; but there is question of the good of the person who judges, if he judge truly, and of his evil if he judge falsely because "the true is the good of the intellect, and the false is its evil," as stated in Ethic. vi, 2, wherefore everyone should strive to make his judgment accord with things as they are. On the other hand when we judge of men, the good and evil in our judgment is considered chiefly on the part of the person about whom judgment is being formed; for he is deemed worthy of honor from the very fact that he is judged to be good, and deserving of contempt if he is judged to be evil. For this reason we ought, in this kind of judgment, to aim at judging a man good, unless there is evident proof of the contrary. And though we may judge falsely, our judgment in thinking well of another pertains to our good feeling and not to the evil of the intellect, even as neither does it pertain to the intellect's perfection to know the truth of contingent singulars in themselves.

Reply Obj. 3: One may interpret something for the worst or for the best in two ways. First, by a kind of supposition; and thus, when we have to apply a remedy to some evil, whether our own or another's, in order for the remedy to be applied with greater certainty of a cure, it is expedient to take the worst for granted, since if a remedy be efficacious against a worse evil, much more is it efficacious against a lesser evil. Secondly we may interpret something for the best or for the worst, by deciding or determining, and in this case when judging of things we should try to interpret each thing according as it is, and when judging of persons, to interpret things for the best as stated above. _____

FIFTH ARTICLE [II-II, Q. 60, Art. 5]

Whether We Should Always Judge According to the Written Law?

Objection 1: It would seem that we ought not always to judge according to the written law. For we ought always to avoid judging unjustly. But written laws sometimes contain injustice, according to Isa. 10:1, "Woe to them that make wicked laws, and when they write, write injustice." Therefore we ought not always to judge according to the written law.

Obj. 2: Further, judgment has to be formed about individual happenings. But no written law can cover each and every individual happening, as the Philosopher declares (Ethic. v, 10). Therefore it seems that we are not always bound to judge according to the written law.

Obj. 3: Further, a law is written in order that the lawgiver's intention may be made clear. But it happens sometimes that even if the lawgiver himself were present he would judge otherwise. Therefore we ought not always to judge according to the written law.

On the contrary, Augustine says (De Vera Relig. xxxi): "In these earthly laws, though men judge about them when they are making them, when once they are established and passed, the judges may judge no longer of them, but according to them."

I answer that, As stated above (A. 1), judgment is nothing else but a decision or determination of what is just. Now a thing becomes just in two ways: first by the very nature of the case, and this is called "natural right," secondly by some agreement between men, and this is called "positive right," as stated above (Q. 57, A. 2). Now laws are written for the purpose of manifesting both these rights, but in different ways. For the written law does indeed contain natural right, but it does not establish it, for the latter derives its force, not from the law but from nature: whereas the written law both contains positive right, and establishes it by giving it force of authority.

Hence it is necessary to judge according to the written law, else judgment would fall short either of the natural or of the positive right.

Reply Obj. 1: Just as the written law does not give force to the natural right, so neither can it diminish or annul its force, because neither can man's will change nature. Hence if the written law contains anything contrary to the natural right, it is unjust and has no binding force. For positive right has no place except where "it matters not," according to the natural right, "whether a thing be done in one way or in another"; as stated above (Q. 57, A. 2, ad 2). Wherefore such documents are to be called, not laws, but rather corruptions of law, as stated above (I-II, Q. 95, A. 2): and consequently judgment should not be delivered according to them.

Reply Obj. 2: Even as unjust laws by their very nature are, either always or for the most part, contrary to the natural right, so too laws that are rightly established, fail in some cases, when if they were observed they would be contrary to the natural right. Wherefore in such cases judgment should be delivered, not according to the letter of the law, but according to equity which the lawgiver has in view. Hence the jurist says [*Digest. i, 3; De leg. senatusque consult. 25]: "By no reason of law, or favor of equity, is it allowable for us to interpret harshly, and render burdensome, those useful measures which have been enacted for the welfare of man." In such cases even the lawgiver himself would decide otherwise; and if he had foreseen the case, he might have provided for it by law.

This suffices for the Reply to the Third Objection. _____

SIXTH ARTICLE [II-II, Q. 60, Art. 6]

Whether Judgment Is Rendered Perverse by Being Usurped?

Objection 1: It would seem that judgment is not rendered perverse by being usurped. For justice is rectitude in matters of action. Now truth is not impaired, no matter who tells it, but it may suffer from the person who ought to accept it. Therefore again justice loses nothing, no matter who declares what is just, and this is what is meant by judgment.

Obj. 2: Further, it belongs to judgment to punish sins. Now it is related to the praise of some that they punished sins without having authority over those whom they punished; such as Moses in slaying the Egyptian (Ex. 2:12), and Phinees the son of Eleazar in slaying Zambri the son of Salu (Num. 25:7-14), and "it was reputed to him unto justice" (Ps. 105:31). Therefore usurpation of judgment pertains not to injustice.

Obj. 3: Further, spiritual power is distinct from temporal. Now prelates having spiritual power sometimes interfere in matters concerning the secular power. Therefore usurped judgment is not unlawful.

Obj. 4: Further, even as the judge requires authority in order to judge aright, so also does he need justice and knowledge, as shown above (A. 1, ad 1, 3; A. 2). But a judgment is not described as unjust, if he who judges lacks the habit of justice or the knowledge of the law. Neither therefore is it always unjust to judge by usurpation, i.e. without authority.

On the contrary, It is written (Rom. 14:4): "Who art thou that judgest another man's servant?"

I answer that, Since judgment should be pronounced according to the written law, as stated above (A. 5), he that pronounces judgment, interprets, in a way, the letter of the law, by applying it to some particular case. Now since it belongs to the same authority to interpret and to make a law, just as a law cannot be made save by public authority, so neither can a judgment be pronounced except by public authority, which extends over those who are subject to the community. Wherefore even as it would be unjust for one man to force another to observe a law that was not approved by public authority, so too it is unjust, if a man compels another to submit to a judgment that is pronounced by other than the public authority.

Reply Obj. 1: When the truth is declared there is no obligation to accept it, and each one is free to receive it or not, as he wishes. On the other hand judgment implies an obligation, wherefore it is unjust for anyone to be judged by one who has no public authority.

Reply Obj. 2: Moses seems to have slain the Egyptian by authority received as it were, by divine inspiration; this seems to follow from Acts 7:24, 25, where it is said that "striking the Egyptian . . . he thought that his brethren understood that God by his hand would save Israel [Vulg.: 'them']." Or it may be replied that Moses slew the Egyptian in order to defend the man who was unjustly attacked, without himself exceeding the limits of a blameless defence. Wherefore Ambrose says (De Offic. i, 36) that "whoever does not ward off a blow from a fellow man when he can, is as much in fault as the striker"; and he quotes the example of Moses. Again we may reply with Augustine (QQ. Exod. qu. 2) [*Cf. Contra Faust. xxii, 70] that just as "the soil gives proof of its fertility by producing useless herbs before the useful seeds have grown, so this deed of Moses was sinful although it gave a sign of great fertility," in so far, to wit, as it was a sign of the power whereby he was to deliver his people.

With regard to Phinees the reply is that he did this out of zeal for God by Divine inspiration; or because though not as yet high-priest, he was nevertheless the high-priest's son, and this judgment was his concern as of the other judges, to whom this was commanded [*Ex. 22:20; Lev. 20; Deut. 13, 17].

Reply Obj. 3: The secular power is subject to the spiritual, even as the body is subject to the soul. Consequently the judgment is not usurped if the spiritual authority interferes in those temporal matters that are subject to the spiritual authority or which have been committed to the spiritual by the temporal authority.

Reply Obj. 4: The habits of knowledge and justice are perfections of the individual, and consequently their absence does not make a judgment to be usurped, as in the absence of public authority which gives a judgment its coercive force. _____

QUESTION 61

OF THE PARTS OF JUSTICE (In Four Articles)

We must now consider the parts of justice; (1) the subjective parts, which are the species of justice, i.e. distributive and commutative justice; (2) the quasi-integral parts; (3) the quasi-potential parts, i.e. the virtues connected with justice. The first consideration will be twofold: (1) The parts of justice; (2) their opposite vices. And since restitution would seem to be an act of commutative justice, we must consider (1) the distinction between commutative and distributive justice; (2) restitution.

Under the first head there are four points of inquiry:

(1) Whether there are two species of justice, viz. distributive and commutative?

(2) Whether in either case the mean is take in the same way?

(3) Whether their matter is uniform or manifold?

(4) Whether in any of these species the just is the same as counter-passion? _____

FIRST ARTICLE [II-II, Q. 61, Art. 1]

Whether Two Species of Justice Are Suitably Assigned, Viz. Commutative and Distributive?

Objection 1: It would seem that the two species of justice are unsuitably assigned, viz. distributive and commutative. That which is hurtful to the many cannot be a species of justice, since justice is directed to the common good. Now it is hurtful to the common good of the many, if the goods of the community are distributed among many, both because the goods of the community would be exhausted, and because the morals of men would be corrupted. For Tully says (De Offic. ii, 15): "He who receives becomes worse, and the more ready to expect that he will receive again." Therefore distribution does not belong to any species of justice.

Obj. 2: Further, the act of justice is to render to each one what is his own, as stated above (Q. 58, A. 2). But when things are distributed, a man does not receive what was his, but becomes possessed of something which belonged to the community. Therefore this does not pertain to justice.

Obj. 3: Further, justice is not only in the sovereign, but also in the subject, as stated above (Q. 58, A. 6). But it belongs exclusively to the sovereign to distribute. Therefore distribution does not always belong to justice.

Obj. 4: Further, "Distributive justice regards common goods" (Ethic. v, 4). Now matters regarding the community pertain to legal justice. Therefore distributive justice is a part, not of particular, but of legal justice.

Obj. 5: Further, unity or multitude do not change the species of a virtue. Now commutative justice consists in rendering something to one person, while distributive justice consists in giving something to many. Therefore they are not different species of justice.

On the contrary, The Philosopher assigns two parts to justice and says (Ethic. v, 2) that "one directs distributions, the other, commutations."

I answer that, As stated above (Q. 58, AA. 7, 8), particular justice is directed to the private individual, who is compared to the community as a part to the whole. Now a twofold order may be considered in relation to a part. In the first place there is the order of one part to another, to which corresponds the order of one private individual to another. This order is directed by commutative justice, which is concerned about the mutual dealings between two persons. In the second place there is the order of the whole towards the parts, to which corresponds the order of that which belongs to the community in relation to each single person. This order is directed by distributive justice, which distributes common goods proportionately. Hence there are two species of justice, distributive and commutative.

Reply Obj. 1: Just as a private individual is praised for moderation in his bounty, and blamed for excess therein, so too ought moderation to be observed in the distribution of common goods, wherein distributive justice directs.

Reply Obj. 2: Even as part and whole are somewhat the same, so too that which pertains to the whole, pertains somewhat to the part also: so that when the goods of the community are distributed among a number of individuals each one receives that which, in a way, is his own.

Reply Obj. 3: The act of distributing the goods of the community, belongs to none but those who exercise authority over those goods; and yet distributive justice is also in the subjects to whom those goods are distributed in so far as they are contented by a just distribution. Moreover distribution of common goods is sometimes made not to the state but to the members of a family, and such distribution can be made by authority of a private individual.

Reply Obj. 4: Movement takes its species from the term whereunto. Hence it belongs to legal justice to direct to the common good those matters which concern private individuals: whereas on the contrary it belongs to particular justice to direct the common good to particular individuals by way of distribution.

Reply Obj. 5: Distributive and commutative justice differ not only in respect of unity and multitude, but also in respect of different kinds of due: because common property is due to an individual in one way, and his personal property in another way. _____

SECOND ARTICLE [II-II, Q. 61, Art. 2]

Whether the Mean Is to Be Observed in the Same Way in Distributive As in Commutative Justice?

Objection 1: It would seem that the mean in distributive justice is to be observed in the same way as in commutative justice. For each of these is a kind of particular justice, as stated above (A. 1). Now the mean is taken in the same way in all the parts of temperance or fortitude. Therefore the mean should also be observed in the same way in both distributive and commutative justice.

Obj. 2: Further, the form of a moral virtue consists in observing the mean which is determined in accordance with reason. Since, then, one virtue has one form, it seems that the mean for both should be the same.

Obj. 3: Further, in order to observe the mean in distributive justice we have to consider the various deserts of persons. Now a person's deserts are considered also in commutative justice, for instance, in punishments; thus a man who strikes a prince is punished more than one who strikes a private individual. Therefore the mean is observed in the same way in both kinds of justice.

On the contrary, The Philosopher says (Ethic. v, 3, 4) that the mean in distributive justice is observed according to "geometrical proportion," whereas in commutative justice it follows "arithmetical proportion."

I answer that, As stated above (A. 1), in distributive justice something is given to a private individual, in so far as what belongs to the whole is due to the part, and in a quantity that is proportionate to the importance of the position of that part in respect of the whole. Consequently in distributive justice a person receives all the more of the common goods, according as he holds a more prominent position in the community. This prominence in an aristocratic community is gauged according to virtue, in an oligarchy according to wealth, in a democracy according to liberty, and in various ways according to various forms of community. Hence in distributive justice the mean is observed, not according to equality between thing and thing, but according to proportion between things and persons: in such a way that even as one person surpasses another, so that which is given to one person surpasses that which is allotted to another. Hence the Philosopher says (Ethic. v, 3, 4) that the mean in the latter case follows "geometrical proportion," wherein equality depends not on quantity but on proportion. For example we say that 6 is to 4 as 3 is to 2, because in either case the proportion equals 11/2; since the greater number is the sum of the lesser plus its half: whereas the equality of excess is not one of quantity, because 6 exceeds 4 by 2, while 3 exceeds 2 by 1.

On the other hand in commutations something is paid to an individual on account of something of his that has been received, as may be seen chiefly in selling and buying, where the notion of commutation is found primarily. Hence it is necessary to equalize thing with thing, so that the one person should pay back to the other just so much as he has become richer out of that which belonged to the other. The result of this will be equality according to the "arithmetical mean" which is gauged according to equal excess in quantity. Thus 5 is the mean between 6 and 4, since it exceeds the latter and is exceeded by the former, by 1. Accordingly if, at the start, both persons have 5, and one of them receives 1 out of the other's belongings, the one that is the receiver, will have 6, and the other will be left with 4: and so there will be justice if both be brought back to the mean, 1 being taken from him that has 6, and given to him that has 4, for then both will have 5 which is the mean.

Reply Obj. 1: In the other moral virtues the rational, not the real mean, is to be followed: but justice follows the real mean; wherefore the mean, in justice, depends on the diversity of things.

Reply Obj. 2: Equality is the general form of justice, wherein distributive and commutative justice agree: but in one we find equality of geometrical proportion, whereas in the other we find equality of arithmetical proportion.

Reply Obj. 3: In actions and passions a person's station affects the quantity of a thing: for it is a greater injury to strike a prince than a private person. Hence in distributive justice a person's station is considered in itself, whereas in commutative justice it is considered in so far as it causes a diversity of things. _____

THIRD ARTICLE [II-II, Q. 61, Art. 3]

Whether There Is a Different Matter for Both Kinds of Justice?

Objection 1: It would seem that there is not a different matter for both kinds of justice. Diversity of matter causes diversity of virtue, as in the case of fortitude and temperance. Therefore, if distributive and commutative justice have different matters, it would seem that they are not comprised under the same virtue, viz. justice.

Obj. 2: Further, the distribution that has to do with distributive justice is one of "wealth or of honors, or of whatever can be distributed among the members of the community" (Ethic. v, 2), which very things are the subject matter of commutations between one person and another, and this belongs to commutative justice. Therefore the matters of distributive and commutative justice are not distinct.

Obj. 3: Further, if the matter of distributive justice differs from that of commutative justice, for the reason that they differ specifically, where there is no specific difference, there ought to be no diversity of matter. Now the Philosopher (Ethic. v, 2) reckons commutative justice as one species, and yet this has many kinds of matter. Therefore the matter of these species of justice is, seemingly, not of many kinds.

On the contrary, It is stated in Ethic. v, 2 that "one kind of justice directs distributions, and another commutations."

I answer that, As stated above (Q. 51, AA. 8, 10), justice is about certain external operations, namely distribution and commutation. These consist in the use of certain externals, whether things, persons or even works: of things, as when one man takes from or restores to another that which is his; of persons, as when a man does an injury to the very person of another, for instance by striking or insulting him, or even by showing respect for him; and of works, as when a man justly exacts a work of another, or does a work for him. Accordingly, if we take for the matter of each kind of justice the things themselves of which the operations are the use, the matter of distributive and commutative justice is the same, since things can be distributed out of the common property to individuals, and be the subject of commutation between one person and another; and again there is a certain distribution and payment of laborious works.

If, however, we take for the matter of both kinds of justice the principal actions themselves, whereby we make use of persons, things, and works, there is then a difference of matter between them. For distributive justice directs distributions, while commutative justice directs commutations that can take place between two persons. Of these some are involuntary, some voluntary. They are involuntary when anyone uses another man's chattel, person, or work against his will, and this may be done secretly by fraud, or openly by violence. In either case the offence may be committed against the other man's chattel or person, or against a person connected with him. If the offence is against his chattel and this be taken secretly, it is called "theft," if openly, it is called "robbery." If it be against another man's person, it may affect either the very substance of his person, or his dignity. If it be against the substance of his person, a man is injured secretly if he is treacherously slain, struck or poisoned, and openly, if he is publicly slain, imprisoned, struck or maimed. If it be against his personal dignity, a man is injured secretly by false witness, detractions and so forth, whereby he is deprived of his good name, and openly, by being accused in a court of law, or by public insult. If it be against a personal connection, a man is injured in the person of his wife, secretly (for the most part) by adultery, in the person of his slave, if the latter be induced to leave his master: which things can also be done openly. The same applies to other personal connections, and whatever injury may be committed against the principal, may be committed against them also. Adultery, however, and inducing a slave to leave his master are properly injuries against the person; yet the latter, since a slave is his master's chattel, is referred to theft. Voluntary commutations are when a man voluntarily transfers his chattel to another person. And if he transfer it simply so that the recipient incurs no debt, as in the case of gifts, it is an act, not of justice but of liberality. A voluntary transfer belongs to justice in so far as it includes the notion of debt, and this may occur in many ways. First when one man simply transfers his thing to another in exchange for another thing, as happens in selling and buying. Secondly when a man transfers his thing to another, that the latter may have the use of it with the obligation of returning it to its owner. If he grant the use of a thing gratuitously, it is called "usufruct" in things that bear fruit; and simply "borrowing" on "loan" in things that bear no fruit, such as money, pottery, etc.; but if not even the use is granted gratis, it is called "letting" or "hiring." Thirdly, a man transfers his thing with the intention of recovering it, not for the purpose of its use, but that it may be kept safe, as in a "deposit," or under some obligation, as when a man pledges his property, or when one man stands security for another. In all these actions, whether voluntary or involuntary, the mean is taken in the same way according to the equality of repayment. Hence all these actions belong to the one same species of justice, namely commutative justice. And this suffices for the Replies to the Objections. _____

FOURTH ARTICLE [II-II, Q. 61, Art. 4]

Whether the Just Is Absolutely the Same As Retaliation?

Objection 1: It would seem that the just is absolutely the same as retaliation. For the judgment of God is absolutely just. Now the judgment of God is such that a man has to suffer in proportion with his deeds, according to Matt. 7:2: "With what measure you judge, you shall be judged: and with what measure you mete, it shall be measured to you again." Therefore the just is absolutely the same as retaliation.

Obj. 2: Further, in either kind of justice something is given to someone according to a kind of equality. In distributive justice this equality regards personal dignity, which would seem to depend chiefly on what a person has done for the good of the community; while in commutative justice it regards the thing in which a person has suffered loss. Now in respect of either equality there is retaliation in respect of the deed committed. Therefore it would seem that the just is absolutely the same as retaliation.

Obj. 3: Further, the chief argument against retaliation is based on the difference between the voluntary and the involuntary; for he who does an injury involuntarily is less severely punished. Now voluntary and involuntary taken in relation to ourselves, do not diversify the mean of justice since this is the real mean and does not depend on us. Therefore it would seem that the just is absolutely the same as retaliation.

On the contrary, The Philosopher proves (Ethic. v, 5) that the just is not always the same as retaliation.

I answer that, Retaliation (contrapassum) denotes equal passion repaid for previous action; and the expression applies most properly to injurious passions and actions, whereby a man harms the person of his neighbor; for instance if a man strike, that he be struck back. This kind of just is laid down in the Law (Ex. 21:23, 24): "He shall render life for life, eye for eye," etc. And since also to take away what belongs to another is to do an unjust thing, it follows that secondly retaliation consists in this also, that whosoever causes loss to another, should suffer loss in his belongings. This just loss is also found in the Law (Ex. 22:1): "If any man steal an ox or a sheep, and kill or sell it, he shall restore five oxen for one ox and four sheep for one sheep." Thirdly retaliation is transferred to voluntary commutations, where action and passion are on both sides, although voluntariness detracts from the nature of passion, as stated above (Q. 59, A. 3).

In all these cases, however, repayment must be made on a basis of equality according to the requirements of commutative justice, namely that the meed of passion be equal to the action. Now there would not always be equality if passion were in the same species as the action. Because, in the first place, when a person injures the person of one who is greater, the action surpasses any passion of the same species that he might undergo, wherefore he that strikes a prince, is not only struck back, but is much more severely punished. In like manner when a man despoils another of his property against the latter's will, the action surpasses the passion if he be merely deprived of that thing, because the man who caused another's loss, himself would lose nothing, and so he is punished by making restitution several times over, because not only did he injure a private individual, but also the common weal, the security of whose protection he has infringed. Nor again would there be equality of passion in voluntary commutations, were one always to exchange one's chattel for another man's, because it might happen that the other man's chattel is much greater than our own: so that it becomes necessary to equalize passion and action in commutations according to a certain proportionate commensuration, for which purpose money was invented. Hence retaliation is in accordance with commutative justice: but there is no place for it in distributive justice, because in distributive justice we do not consider the equality between thing and thing or between passion and action (whence the expression contrapassum), but according to proportion between things and persons, as stated above (A. 2).

Reply Obj. 1: This form of the Divine judgment is in accordance with the conditions of commutative justice, in so far as rewards are apportioned to merits, and punishments to sins.

Reply Obj. 2: When a man who has served the community is paid for his services, this is to be referred to commutative, not distributive, justice. Because distributive justice considers the equality, not between the thing received and the thing done, but between the thing received by one person and the thing received by another according to the respective conditions of those persons.

Reply Obj. 3: When the injurious action is voluntary, the injury is aggravated and consequently is considered as a greater thing. Hence it requires a greater punishment in repayment, by reason of a difference, not on our part, but on the part of the thing. _____

QUESTION 62

OF RESTITUTION (In Eight Articles)

We must now consider restitution, under which head there are eight points of inquiry:

(1) Of what is it an act?

(2) Whether it is always of necessity for salvation to restore what one has taken away?

(3) Whether it is necessary to restore more than has been taken away?

(4) Whether it is necessary to restore what one has not taken away?

(5) Whether it is necessary to make restitution to the person from whom something has been taken?

(6) Whether the person who has taken something away is bound to restore it?

(7) Whether any other person is bound to restitution?

(8) Whether one is bound to restore at once? _____

FIRST ARTICLE [II-II, Q. 62, Art. 1]

Whether Restitution Is an Act of Commutative Justice?

Objection 1: It would seem that restitution is not an act of commutative justice. For justice regards the notion of what is due. Now one may restore, even as one may give, that which is not due. Therefore restitution is not the act of any part of justice.

Obj. 2: Further, that which has passed away and is no more cannot be restored. Now justice and injustice are about certain actions and passions, which are unenduring and transitory. Therefore restitution would not seem to be the act of a part of justice.

Obj. 3: Further, restitution is repayment of something taken away. Now something may be taken away from a man not only in commutation, but also in distribution, as when, in distributing, one gives a man less than his due. Therefore restitution is not more an act of commutative than of distributive justice.

On the contrary, Restitution is opposed to taking away. Now it is an act of commutative injustice to take away what belongs to another. Therefore to restore it is an act of that justice which directs commutations.

I answer that, To restore is seemingly the same as to reinstate a person in the possession or dominion of his thing, so that in restitution we consider the equality of justice attending the payment of one thing for another, and this belongs to commutative justice. Hence restitution is an act of commutative justice, occasioned by one person having what belongs to another, either with his consent, for instance on loan or deposit, or against his will, as in robbery or theft.

Reply Obj. 1: That which is not due to another is not his properly speaking, although it may have been his at some time: wherefore it is a mere gift rather than a restitution, when anyone renders to another what is not due to him. It is however somewhat like a restitution, since the thing itself is materially the same; yet it is not the same in respect of the formal aspect of justice, which considers that thing as belonging to this particular man: and so it is not restitution properly so called.

Reply Obj. 2: In so far as the word restitution denotes something done over again, it implies identity of object. Hence it would seem originally to have applied chiefly to external things, which can pass from one person to another, since they remain the same both substantially and in respect of the right of dominion. But, even as the term "commutation" has passed from such like things to those actions and passions which confer reverence or injury, harm or profit on another person, so too the term "restitution" is applied, to things which though they be transitory in reality, yet remain in their effect; whether this touch his body, as when the body is hurt by being struck, or his reputation, as when a man remains defamed or dishonored by injurious words.

Reply Obj. 3: Compensation is made by the distributor to the man to whom less was given than his due, by comparison of thing with thing, when the latter receives so much the more according as he received less than his due: and consequently it pertains to commutative justice. _____

SECOND ARTICLE [II-II, Q. 62, Art. 2]

Whether Restitution of What Has Been Taken Away Is Necessary for Salvation?

Objection 1: It would seem that it is not necessary to restore what has been taken away. For that which is impossible is not necessary for salvation. But sometimes it is impossible to restore what has been taken, as when a man has taken limb or life. Therefore it does not seem necessary for salvation to restore what one has taken from another.

Obj. 2: Further, the commission of a sin is not necessary for salvation, for then a man would be in a dilemma. But sometimes it is impossible, without sin, to restore what has been taken, as when one has taken away another's good name by telling the truth. Therefore it is not necessary for salvation to restore what one has taken from another.

Obj. 3: Further, what is done cannot be undone. Now sometimes a man loses his personal honor by being unjustly insulted. Therefore that which has been taken from him cannot be restored to him: so that it is not necessary for salvation to restore what one has taken.

Obj. 4: Further, to prevent a person from obtaining a good thing is seemingly the same as to take it away from him, since "to lack little is almost the same as to lack nothing at all," as the Philosopher says (Phys. ii, 5). Now when anyone prevents a man from obtaining a benefice or the like, seemingly he is not bound to restore the benefice, since this would be sometimes impossible. Therefore it is not necessary for salvation to restore what one has taken.

On the contrary, Augustine says (Ep. ad Maced. cxliii): "Unless a man restore what he has purloined, his sin is not forgiven."

I answer that, Restitution as stated above (A. 1) is an act of commutative justice, and this demands a certain equality. Wherefore restitution denotes the return of the thing unjustly taken; since it is by giving it back that equality is reestablished. If, however, it be taken away justly, there will be equality, and so there will be no need for restitution, for justice consists in equality. Since therefore the safeguarding of justice is necessary for salvation, it follows that it is necessary for salvation to restore what has been taken unjustly.

Reply Obj. 1: When it is impossible to repay the equivalent, it suffices to repay what one can, as in the case of honor due to God and our parents, as the Philosopher states (Ethic. viii, 14). Wherefore when that which has been taken cannot be restored in equivalent, compensation should be made as far as possible: for instance if one man has deprived another of a limb, he must make compensation either in money or in honor, the condition of either party being duly considered according to the judgment of a good man.

Reply Obj. 2: There are three ways in which one may take away another's good name. First, by saying what is true, and this justly, as when a man reveals another's sin, while observing the right order of so doing, and then he is not bound to restitution. Secondly, by saying what is untrue and unjustly, and then he is bound to restore that man's good name, by confessing that he told an untruth. Thirdly, by saying what is true, but unjustly, as when a man reveals another's sin contrarily to the right order of so doing, and then he is bound to restore his good name as far as he can, and yet without telling an untruth; for instance by saying that he spoke ill, or that he defamed him unjustly; or if he be unable to restore his good name, he must compensate him otherwise, the same as in other cases, as stated above (ad 1).

Reply Obj. 3: The action of the man who has defamed another cannot be undone, but it is possible, by showing him deference, to undo its effect, viz. the lowering of the other man's personal dignity in the opinion of other men.

Reply Obj. 4: There are several ways of preventing a man from obtaining a benefice. First, justly: for instance, if having in view the honor of God or the good of the Church, one procures its being conferred on a more worthy subject, and then there is no obligation whatever to make restitution or compensation. Secondly, unjustly, if the intention is to injure the person whom one hinders, through hatred, revenge or the like. In this case, if before the benefice has been definitely assigned to anyone, one prevents its being conferred on a worthy subject by counseling that it be not conferred on him, one is bound to make some compensation, after taking account of the circumstances of persons and things according to the judgment of a prudent person: but one is not bound in equivalent, because that man had not obtained the benefice and might have been prevented in many ways from obtaining it. If, on the other hand, the benefice had already been assigned to a certain person, and someone, for some undue cause procures its revocation, it is the same as though he had deprived a man of what he already possessed, and consequently he would be bound to compensation in equivalent, in proportion, however, to his means. _____

THIRD ARTICLE [II-II, Q. 62, Art. 3]

Whether It Suffices to Restore the Exact Amount Taken?

Objection 1: It would seem that it is not sufficient to restore the exact amount taken. For it is written (Ex. 22:1): "If a man shall steal an ox or a sheep and kill or sell it, he shall restore five oxen for one ox, and four sheep for one sheep." Now everyone is bound to keep the commandments of the Divine law. Therefore a thief is bound to restore four- or fivefold.

Obj. 2: Further, "What things soever were written, were written for our learning" (Rom. 15:4). Now Zachaeus said (Luke 19:8) to our Lord: "If I have wronged any man of any thing, I restore him fourfold." Therefore a man is bound to restore several times over the amount he has taken unjustly.

Obj. 3: Further, no one can be unjustly deprived of what he is not bound to give. Now a judge justly deprives a thief of more than the amount of his theft, under the head of damages. Therefore a man is bound to pay it, and consequently it is not sufficient to restore the exact amount.

On the contrary, Restitution re-establishes equality where an unjust taking has caused inequality. Now equality is restored by repaying the exact amount taken. Therefore there is no obligation to restore more than the exact amount taken.

I answer that, When a man takes another's thing unjustly, two things must be considered. One is the inequality on the part of the thing, which inequality is sometimes void of injustice, as is the case in loans. The other is the sin of injustice, which is consistent with equality on the part of the thing, as when a person intends to use violence but fails.

As regards the first, the remedy is applied by making restitution, since thereby equality is re-established; and for this it is enough that a man restore just so much as he has belonging to another. But as regards the sin, the remedy is applied by punishment, the infliction of which belongs to the judge: and so, until a man is condemned by the judge, he is not bound to restore more than he took, but when once he is condemned, he is bound to pay the penalty.

Hence it is clear how to answer the First Objection: because this law fixes the punishment to be inflicted by the judge. Nor is this commandment to be kept now, because since the coming of Christ no man is bound to keep the judicial precepts, as stated above (I-II, Q. 104, A. 3). Nevertheless the same might be determined by human law, and then the same answer would apply.

Reply Obj. 2: Zachaeus said this being willing to do more than he was bound to do; hence he had said already: "Behold . . . the half of my goods I give to the poor."

Reply Obj. 3: By condemning the man justly, the judge can exact more by way of damages; and yet this was not due before the sentence. _____

FOURTH ARTICLE [II-II, Q. 62, Art. 4]

Whether a Man Is Bound to Restore What He Has Not Taken?

Objection 1: It would seem that a man is bound to restore what he has not taken. For he that has inflicted a loss on a man is bound to remove that loss. Now it happens sometimes that the loss sustained is greater than the thing taken: for instance, if you dig up a man's seeds, you inflict on the sower a loss equal to the coming harvest, and thus you would seem to be bound to make restitution accordingly. Therefore a man is bound to restore what he has not taken.

Obj. 2: Further, he who retains his creditor's money beyond the stated time, would seem to occasion his loss of all his possible profits from that money, and yet he does not really take them. Therefore it seems that a man is bound to restore what he did not take.

Obj. 3: Further, human justice is derived from Divine justice. Now a man is bound to restore to God more than he has received from Him, according to Matt. 25:26, "Thou knewest that I reap where I sow not, and gather where I have not strewed." Therefore it is just that one should restore to a man also, something that one has not taken.

On the contrary, Restitution belongs to justice, because it re-establishes equality. But if one were to restore what one did not take, there would not be equality. Therefore it is not just to make such a restitution.

I answer that, Whoever brings a loss upon another person, seemingly, takes from him the amount of the loss, since, according to the Philosopher (Ethic. v, 4) loss is so called from a man having less* than his due. [*The derivation is more apparent in English than in Latin, where damnum stands for loss, and minus for less. Aristotle merely says that to have more than your own is called "gain," and to have less than you started with is called "loss."] Therefore a man is bound to make restitution according to the loss he has brought upon another.

Now a man suffers a loss in two ways. First, by being deprived of what he actually has; and a loss of this kind is always to be made good by repayment in equivalent: for instance if a man damnifies another by destroying his house he is bound to pay him the value of the house. Secondly, a man may damnify another by preventing him from obtaining what he was on the way to obtain. A loss of this kind need not be made good in equivalent; because to have a thing virtually is less than to have it actually, and to be on the way to obtain a thing is to have it merely virtually or potentially, and so were he to be indemnified by receiving the thing actually, he would be paid, not the exact value taken from him, but more, and this is not necessary for salvation, as stated above. However he is bound to make some compensation, according to the condition of persons and things.

From this we see how to answer the First and Second Objections: because the sower of the seed in the field, has the harvest, not actually but only virtually. In like manner he that has money has the profit not yet actually but only virtually: and both may be hindered in many ways.

Reply Obj. 3: God requires nothing from us but what He Himself has sown in us. Hence this saying is to be understood as expressing either the shameful thought of the lazy servant, who deemed that he had received nothing from the other, or the fact that God expects from us the fruit of His gifts, which fruit is from Him and from us, although the gifts themselves are from God without us. _____

FIFTH ARTICLE [II-II, Q. 62, Art. 5]

Whether Restitution Must Always Be Made to the Person from Whom a Thing Has Been Taken?

Objection 1: It would seem that restitution need not always be made to the person from whom a thing has been taken. For it is not lawful to injure anyone. Now it would sometimes be injurious to the man himself, or to others, were one to restore to him what has been taken from him; if, for instance, one were to return a madman his sword. Therefore restitution need not always be made to the person from whom a thing has been taken.

Obj. 2: Further, if a man has given a thing unlawfully, he does not deserve to recover it. Now sometimes a man gives unlawfully that which another accepts unlawfully, as in the case of the giver and receiver who are guilty of simony. Therefore it is not always necessary to make restitution to the person from whom one has taken something.

Obj. 3: Further, no man is bound to do what is impossible. Now it is sometimes impossible to make restitution to the person from whom a thing has been taken, either because he is dead, or because he is too far away, or because he is unknown to us. Therefore restitution need not always be made to the person from whom a thing has been taken.

Obj. 4: Further, we owe more compensation to one from whom we have received a greater favor. Now we have received greater favors from others (our parents for instance) than from a lender or depositor. Therefore sometimes we ought to succor some other person rather than make restitution to one from whom we have taken something.

Obj. 5: Further, it is useless to restore a thing which reverts to the restorer by being restored. Now if a prelate has unjustly taken something from the Church and makes restitution to the Church, it reverts into his hands, since he is the guardian of the Church's property. Therefore he ought not to restore to the Church from whom he has taken: and so restitution should not always be made to the person from whom something has been taken away.

On the contrary, It is written (Rom. 13:7): "Render . . . to all men their dues; tribute to whom tribute is due, custom to whom custom."

I answer that, Restitution re-establishes the equality of commutative justice, which equality consists in the equalizing of thing to thing, as stated above (A. 2; Q. 58, A. 10). Now this equalizing of things is impossible, unless he that has less than his due receive what is lacking to him: and for this to be done, restitution must be made to the person from whom a thing has been taken.

Reply Obj. 1: When the thing to be restored appears to be grievously injurious to the person to whom it is to be restored, or to some other, it should not be restored to him there and then, because restitution is directed to the good of the person to whom it is made, since all possessions come under the head of the useful. Yet he who retains another's property must not appropriate it, but must either reserve it, that he may restore it at a fitting time, or hand it over to another to keep it more securely.

Reply Obj. 2: A person may give a thing unlawfully in two ways. First through the giving itself being illicit and against the law, as is the case when a man gives a thing simoniacally. Such a man deserves to lose what he gave, wherefore restitution should not be made to him: and, since the receiver acted against the law in receiving, he must not retain the price, but must use it for some pious object. Secondly a man gives unlawfully, through giving for an unlawful purpose, albeit the giving itself is not unlawful, as when a woman receives payment for fornication: wherefore she may keep what she has received. If, however, she has extorted overmuch by fraud or deceit, she would be bound to restitution.

Reply Obj. 3: If the person to whom restitution is due is unknown altogether, restitution must be made as far as possible, for instance by giving an alms for his spiritual welfare (whether he be dead or living): but not without previously making a careful inquiry about his person. If the person to whom restitution is due be dead, restitution should be made to his heir, who is looked upon as one with him. If he be very far away, what is due to him should be sent to him, especially if it be of great value and can easily be sent: else it should be deposited in a safe place to be kept for him, and the owner should be advised of the fact.

Reply Obj. 4: A man is bound, out of his own property, to succor his parents, or those from whom he has received greater benefits; but he ought not to compensate a benefactor out of what belongs to others; and he would be doing this if he were to compensate one with what is due to another. Exception must be made in cases of extreme need, for then he could and should even take what belongs to another in order to succor a parent.

Reply Obj. 5: There are three ways in which a prelate can rob the Church of her property. First by laying hands on Church property which is committed, not to him but to another; for instance, if a bishop appropriates the property of the chapter. In such a case it is clear that he is bound to restitution, by handing it over to those who are its lawful owners. Secondly by transferring to another person (for instance a relative or a friend) Church property committed to himself: in which case he must make restitution to the Church, and have it under his own care, so as to hand it over to his successor. Thirdly, a prelate may lay hands on Church property, merely in intention, when, to wit, he begins to have a mind to hold it as his own and not in the name of the Church: in which case he must make restitution by renouncing his intention. _____

SIXTH ARTICLE [II-II, Q. 62, Art. 6]

Whether He That Has Taken a Thing Is Always Bound to Restitution?

Objection 1: It would seem that he who has taken a thing is not always bound to restore it. Restitution re-establishes the equality of justice, by taking away from him that has more and giving to him that has less. Now it happens sometimes that he who has taken that which belongs to another, no longer has it, through its having passed into another's hands. Therefore it should be restored, not by the person that took it, but by the one that has it.

Obj. 2: Further, no man is bound to reveal his own crime. But by making restitution a man would sometimes reveal his crime, as in the case of theft. Therefore he that has taken a thing is not always bound to restitution.

Obj. 3: Further, the same thing should not be restored several times. Now sometimes several persons take a thing at the same time, and one of them restores it in its entirety. Therefore he that takes a thing is not always bound to restitution.

On the contrary, He that has sinned is bound to satisfaction. Now restitution belongs to satisfaction. Therefore he that has taken a thing is bound to restore it.

I answer that, With regard to a man who has taken another's property, two points must be considered: the thing taken, and the taking. By reason of the thing taken, he is bound to restore it as long as he has it in his possession, since the thing that he has in addition to what is his, should be taken away from him, and given to him who lacks it according to the form of commutative justice. On the other hand, the taking of the thing that is another's property, may be threefold. For sometimes it is injurious, i.e. against the will of the owner, as in theft and robbery: in which case the thief is bound to restitution not only by reason of the thing, but also by reason of the injurious action, even though the thing is no longer in his possession. For just as a man who strikes another, though he gain nothing thereby, is bound to compensate the injured person, so too he that is guilty of theft or robbery, is bound to make compensation for the loss incurred, although he be no better off; and in addition he must be punished for the injustice committed. Secondly, a man takes another's property for his own profit but without committing an injury, i.e. with the consent of the owner, as in the case of a loan: and then, the taker is bound to restitution, not only by reason of the thing, but also by reason of the taking, even if he has lost the thing: for he is bound to compensate the person who has done him a favor, and he would not be doing so if the latter were to lose thereby. Thirdly, a man takes another's property without injury to the latter or profit to himself, as in the case of a deposit; wherefore he that takes a thing thus, incurs no obligation on account of the taking, in fact by taking he grants a favor; but he is bound to restitution on account of the thing taken. Consequently if this thing be taken from him without any fault on his part, he is not bound to restitution, although he would be, if he were to lose the thing through a grievous fault on his part.

Reply Obj. 1: The chief end of restitution is, not that he who has more than his due may cease to have it, but that he who has less than his due may be compensated. Wherefore there is no place for restitution in those things which one man may receive from another without loss to the latter, as when a person takes a light from another's candle. Consequently although he that has taken something from another, may have ceased to have what he took, through having transferred it to another, yet since that other is deprived of what is his, both are bound to restitution, he that took the thing, on account of the injurious taking, and he that has it, on account of the thing.

Reply Obj. 2: Although a man is not bound to reveal his crime to other men, yet is he bound to reveal it to God in confession; and so he may make restitution of another's property through the priest to whom he confesses.

Reply Obj. 3: Since restitution is chiefly directed to the compensation for the loss incurred by the person from whom a thing has been taken unjustly, it stands to reason that when he has received sufficient compensation from one, the others are not bound to any further restitution in his regard: rather ought they to refund the person who has made restitution, who, nevertheless, may excuse them from so doing. _____

SEVENTH ARTICLE [II-II, Q. 62, Art. 7]

Whether Restitution Is Binding on Those Who Have Not Taken?

Objection 1: It would seem that restitution is not binding on those who have not taken. For restitution is a punishment of the taker. Now none should be punished except the one who sinned. Therefore none are bound to restitution save the one who has taken.

Obj. 2: Further, justice does not bind one to increase another's property. Now if restitution were binding not only on the man who takes a thing but also on all those who cooperate with him in any way whatever, the person from whom the thing was taken would be the gainer, both because he would receive restitution many times over, and because sometimes a person cooperates towards a thing being taken away from someone, without its being taken away in effect. Therefore the others are not bound to restitution.

Obj. 3: Further, no man is bound to expose himself to danger, in order to safeguard another's property. Now sometimes a man would expose himself to the danger of death, were he to betray a thief, or withstand him. Therefore one is not bound to restitution, through not betraying or withstanding a thief.

On the contrary, It is written (Rom. 1:32): "They who do such things are worthy of death, and not only they that do them, but also they that consent to them that do them." Therefore in like manner they that consent are bound to restitution.

I answer that, As stated above (A. 6), a person is bound to restitution not only on account of someone else's property which he has taken, but also on account of the injurious taking. Hence whoever is cause of an unjust taking is bound to restitution. This happens in two ways, directly and indirectly. Directly, when a man induces another to take, and this in three ways. First, on the part of the taking, by moving a man to take, either by express command, counsel, or consent, or by praising a man for his courage in thieving. Secondly, on the part of the taker, by giving him shelter or any other kind of assistance. Thirdly, on the part of the thing taken, by taking part in the theft or robbery, as a fellow evil-doer. Indirectly, when a man does not prevent another from evil-doing (provided he be able and bound to prevent him), either by omitting the command or counsel which would hinder him from thieving or robbing, or by omitting to do what would have hindered him, or by sheltering him after the deed. All these are expressed as follows:

"By command, by counsel, by consent, by flattery, by receiving, by participation, by silence, by not preventing, by not denouncing."

It must be observed, however, that in five of these cases the cooperator is always bound to restitution. First, in the case of command: because he that commands is the chief mover, wherefore he is bound to restitution principally. Secondly, in the case of consent; namely of one without whose consent the robbery cannot take place. Thirdly, in the case of receiving; when, to wit, a man is a receiver of thieves, and gives them assistance. Fourthly, in the case of participation; when a man takes part in the theft and in the booty. Fifthly, he who does not prevent the theft, whereas he is bound to do so; for instance, persons in authority who are bound to safeguard justice on earth, are bound to restitution, if by their neglect thieves prosper, because their salary is given to them in payment of their preserving justice here below.

In the other cases mentioned above, a man is not always bound to restitution: because counsel and flattery are not always the efficacious cause of robbery. Hence the counsellor or flatterer is bound to restitution, only when it may be judged with probability that the unjust taking resulted from such causes.

Reply Obj. 1: Not only is he bound to restitution who commits the sin, but also he who is in any way cause of the sin, whether by counselling, or by commanding, or in any other way whatever.

Reply Obj. 2: He is bound chiefly to restitution, who is the principal in the deed; first of all, the commander; secondly, the executor, and in due sequence, the others: yet so that, if one of them make restitution, another is not bound to make restitution to the same person. Yet those who are principals in the deed, and who took possession of the thing, are bound to compensate those who have already made restitution. When a man commands an unjust taking that does not follow, no restitution has to be made, since its end is chiefly to restore the property of the person who has been unjustly injured.

Reply Obj. 3: He that fails to denounce a thief or does not withstand or reprehend him is not always bound to restitution, but only when he is obliged, in virtue of his office, to do so: as in the case of earthly princes who do not incur any great danger thereby; for they are invested with public authority, in order that they may maintain justice. _____

EIGHTH ARTICLE [II-II, Q. 62, Art. 8]

Whether a Man Is Bound to Immediate Restitution, or May He Put It Off?

Objection 1: It would seem that a man is not bound to immediate restitution, and can lawfully delay to restore. For affirmative precepts do not bind for always. Now the necessity of making restitution is binding through an affirmative precept. Therefore a man is not bound to immediate restitution.

Obj. 2: Further, no man is bound to do what is impossible. But it is sometimes impossible to make restitution at once. Therefore no man is bound to immediate restitution.

Obj. 3: Further, restitution is an act of virtue, viz. of justice. Now time is one of the circumstances requisite for virtuous acts. Since then the other circumstances are not determinate for acts of virtue, but are determinable according to the dictate of prudence, it seems that neither in restitution is there any fixed time, so that a man be bound to restore at once.

On the contrary, All matters of restitution seem to come under one head. Now a man who hires the services of a wage-earner, must not delay compensation, as appears from Lev. 19:13, "The wages of him that hath been hired by thee shall not abide with thee until the morning." Therefore neither is it lawful, in other cases of restitution, to delay, and restitution should be made at once.

I answer that, Even as it is a sin against justice to take another's property, so also is it to withhold it, since, to withhold the property of another against the owner's will, is to deprive him of the use of what belongs to him, and to do him an injury. Now it is clear that it is wrong to remain in sin even for a short time; and one is bound to renounce one's sin at once, according to Ecclus. 21:2, "Flee from sin as from the face of a serpent." Consequently one is bound to immediate restitution, if possible, or to ask for a respite from the person who is empowered to grant the use of the thing.

Reply Obj. 1: Although the precept about the making of restitution is affirmative in form, it implies a negative precept forbidding us to withhold another's property.

Reply Obj. 2: When one is unable to restore at once, this very inability excuses one from immediate restitution: even as a person is altogether excused from making restitution if he is altogether unable to make it. He is, however, bound either himself or through another to ask the person to whom he owes compensation to grant him a remission or a respite.

Reply Obj. 3: Whenever the omission of a circumstance is contrary to virtue that circumstance must be looked upon as determinate, and we are bound to observe it: and since delay of restitution involves a sin of unjust detention which is opposed to just detention, it stands to reason that the time is determinate in the point of restitution being immediate. _____

QUESTION 63

OF RESPECT OF PERSONS (In Four Articles)

We must now consider the vices opposed to the aforesaid parts of justice. First we shall consider respect of persons which is opposed to distributive justice; secondly we shall consider the vices opposed to commutative justice.

Under the first head there are four points of inquiry:

(1) Whether respect of persons is a sin?

(2) Whether it takes place in the dispensation of spiritualities?

(3) Whether it takes place in showing honor?

(4) Whether it takes place in judicial sentences? _____

FIRST ARTICLE [II-II, Q. 63, Art. 1]

Whether Respect of Persons Is a Sin?

Objection 1: It would seem that respect of persons is not a sin. For the word "person" includes a reference to personal dignity [*Cf. I, Q. 29, A. 3, ad 2]. Now it belongs to distributive justice to consider personal dignity. Therefore respect of persons is not a sin.

Obj. 2: Further, in human affairs persons are of more importance than things, since things are for the benefit of persons and not conversely. But respect of things is not a sin. Much less, therefore, is respect of persons.

Obj. 3: Further, no injustice or sin can be in God. Yet God seems to respect persons, since of two men circumstanced alike He sometimes upraises one by grace, and leaves the other in sin, according to Matt. 24:40: "Two shall be in a bed [Vulg.: 'field'] [*'Bed' is the reading of Luke 17:34], one shall be taken, and one shall be left." Therefore respect of persons is not a sin.

On the contrary, Nothing but sin is forbidden in the Divine law. Now respect of persons is forbidden, Deut. 1:17: "Neither shall you respect any man's person." Therefore respect of persons is a sin.

I answer that, Respect of persons is opposed to distributive justice. For the equality of distributive justice consists in allotting various things to various persons in proportion to their personal dignity. Accordingly, if one considers that personal property by reason of which the thing allotted to a particular person is due to him, this is respect not of the person but of the cause. Hence a gloss on Eph. 6:9, "There is no respect of persons with God [Vulg.: 'Him']," says that "a just judge regards causes, not persons." For instance if you promote a man to a professorship on account of his having sufficient knowledge, you consider the due cause, not the person; but if, in conferring something on someone, you consider in him not the fact that what you give him is proportionate or due to him, but the fact that he is this particular man (e.g. Peter or Martin), then there is respect of the person, since you give him something not for some cause that renders him worthy of it, but simply because he is this person. And any circumstance that does not amount to a reason why this man be worthy of this gift, is to be referred to his person: for instance if a man promote someone to a prelacy or a professorship, because he is rich or because he is a relative of his, it is respect of persons. It may happen, however, that a circumstance of person makes a man worthy as regards one thing, but not as regards another: thus consanguinity makes a man worthy to be appointed heir to an estate, but not to be chosen for a position of ecclesiastical authority: wherefore consideration of the same circumstance of person will amount to respect of persons in one matter and not in another. It follows, accordingly, that respect of persons is opposed to distributive justice in that it fails to observe due proportion. Now nothing but sin is opposed to virtue: and therefore respect of persons is a sin.

Reply Obj. 1: In distributive justice we consider those circumstances of a person which result in dignity or right, whereas in respect of persons we consider circumstances that do not so result.

Reply Obj. 2: Persons are rendered proportionate to and worthy of things which are distributed among them, by reason of certain things pertaining to circumstances of person, wherefore such conditions ought to be considered as the proper cause. But when we consider the persons themselves, that which is not a cause is considered as though it were; and so it is clear that although persons are more worthy, absolutely speaking, yet they are not more worthy in this regard.

Reply Obj. 3: There is a twofold giving. One belongs to justice, and occurs when we give a man his due: in such like givings respect of persons takes place. The other giving belongs to liberality, when one gives gratis that which is not a man's due: such is the bestowal of the gifts of grace, whereby sinners are chosen by God. In such a giving there is no place for respect of persons, because anyone may, without injustice, give of his own as much as he will, and to whom he will, according to Matt. 20:14, 15, "Is it not lawful for me to do what I will? . . . Take what is thine, and go thy way." _____

SECOND ARTICLE [II-II, Q. 63, Art. 2]

Whether Respect of Persons Takes Place in the Dispensation of Spiritual Goods?

Objection 1: It would seem that respect of persons does not take place in the dispensation of spiritual goods. For it would seem to savor of respect of persons if a man confers ecclesiastical dignity or benefice on account of consanguinity, since consanguinity is not a cause whereby a man is rendered worthy of an ecclesiastical benefice. Yet this apparently is not a sin, for ecclesiastical prelates are wont to do so. Therefore the sin of respect of persons does not take place in the conferring of spiritual goods.

Obj. 2: Further, to give preference to a rich man rather than to a poor man seems to pertain to respect of persons, according to James 2:2, 3. Nevertheless dispensations to marry within forbidden degrees are more readily granted to the rich and powerful than to others. Therefore the sin of respect of persons seems not to take place in the dispensation of spiritual goods.

Obj. 3: Further, according to jurists [*Cap. Cum dilectus.] it suffices to choose a good man, and it is not requisite that one choose the better man. But it would seem to savor of respect of persons to choose one who is less good for a higher position. Therefore respect of persons is not a sin in spiritual matters.

Obj. 4: Further, according to the law of the Church (Cap. Cum dilectus.) the person to be chosen should be "a member of the flock." Now this would seem to imply respect of persons, since sometimes more competent persons would be found elsewhere. Therefore respect of persons is not a sin in spiritual matters.

On the contrary, It is written (James 2:1): "Have not the faith of our Lord Jesus Christ . . . with respect of persons." On these words a gloss of Augustine says: "Who is there that would tolerate the promotion of a rich man to a position of honor in the Church, to the exclusion of a poor man more learned and holier?" [*Augustine, Ep. ad Hieron. clxvii.]

I answer that, As stated above (A. 1), respect of persons is a sin, in so far as it is contrary to justice. Now the graver the matter in which justice is transgressed, the more grievous the sin: so that, spiritual things being of greater import than temporal, respect of persons is a more grievous sin in dispensing spiritualities than in dispensing temporalities. And since it is respect of persons when something is allotted to a person out of proportion to his deserts, it must be observed that a person's worthiness may be considered in two ways. First, simply and absolutely: and in this way the man who abounds the more in the spiritual gifts of grace is the more worthy. Secondly, in relation to the common good; for it happens at times that the less holy and less learned man may conduce more to the common good, on account of worldly authority or activity, or something of the kind. And since the dispensation of spiritualities is directed chiefly to the common good, according to 1 Cor. 12:7, "The manifestation of the Spirit is given to every man unto profit," it follows that in the dispensation of spiritualities the simply less good are sometimes preferred to the better, without respect of persons, just as God sometimes bestows gratuitous graces on the less worthy.

Reply Obj. 1: We must make a distinction with regard to a prelate's kinsfolk: for sometimes they are less worthy, both absolutely speaking, and in relation to the common good: and then if they are preferred to the more worthy, there is a sin of respect of persons in the dispensation of spiritual goods, whereof the ecclesiastical superior is not the owner, with power to give them away as he will, but the dispenser, according to 1 Cor. 4:1, "Let a man so account of us as of the ministers of Christ, and the dispensers of the mysteries of God." Sometimes however the prelate's kinsfolk are as worthy as others, and then without respect of persons he can lawfully give preference to his kindred since there is at least this advantage, that he can trust the more in their being of one mind with him in conducting the business of the Church. Yet he would have to forego so doing for fear of scandal, if anyone might take an example from him and give the goods of the Church to their kindred without regard to their deserts.

Reply Obj. 2: Dispensations for contracting marriage came into use for the purpose of strengthening treaties of peace: and this is more necessary for the common good in relation to persons of standing, so that there is no respect of persons in granting dispensations more readily to such persons.

Reply Obj. 3: In order that an election be not rebutted in a court of law, it suffices to elect a good man, nor is it necessary to elect the better man, because otherwise every election might have a flaw. But as regards the conscience of an elector, it is necessary to elect one who is better, either absolutely speaking, or in relation to the common good. For if it is possible to have one who is more competent for a post, and yet another be preferred, it is necessary to have some cause for this. If this cause have anything to do with the matter in point, he who is elected will, in this respect, be more competent; and if that which is taken for cause have nothing to do with the matter, it will clearly be respect of persons.

Reply Obj. 4: The man who is taken from among the members of a particular Church, is generally speaking more useful as regards the common good, since he loves more the Church wherein he was brought up. For this reason it was commanded (Deut. 17:15): "Thou mayest not make a man of another nation king, who is not thy brother." _____

THIRD ARTICLE [II-II, Q. 63, Art. 3]

Whether Respect of Persons Takes Place in Showing Honor and Respect?

Objection 1: It would seem that respect of persons does not take place in showing honor and respect. For honor is apparently nothing else than "reverence shown to a person in recognition of his virtue," as the Philosopher states (Ethic. i, 5). Now prelates and princes should be honored although they be wicked, even as our parents, of whom it is written (Ex. 20:12): "Honor thy father and thy mother." Again masters, though they be wicked, should be honored by their servants, according to 1 Tim. 6:1: "Whoever are servants under the yoke, let them count their masters worthy of all honor." Therefore it seems that it is not a sin to respect persons in showing honor.

Obj. 2: Further, it is commanded (Lev. 19:32): "Rise up before the hoary head, and, honor the person of the aged man." But this seems to savor of respect of persons, since sometimes old men are not virtuous; according to Dan. 13:5: "Iniquity came out from the ancients of the people [*Vulg.: 'Iniquity came out of Babylon from the ancient judges, that seemed to govern the people.']." Therefore it is not a sin to respect persons in showing honor.

Obj. 3: Further, on the words of James 2:1, "Have not the faith . . . with respect of persons," a gloss of Augustine [*Ep. ad Hieron. clxvii.] says: "If the saying of James, 'If there shall come into your assembly a man having a golden ring,' etc., refer to our daily meetings, who sins not here, if however he sin at all?" Yet it is respect of persons to honor the rich for their riches, for Gregory says in a homily (xxviii in Evang.): "Our pride is blunted, since in men we honor, not the nature wherein they are made to God's image, but wealth," so that, wealth not being a due cause of honor, this will savor of respect of persons. Therefore it is not a sin to respect persons in showing honor.

On the contrary, A gloss on James 2:1, says: "Whoever honors the rich for their riches, sins," and in like manner, if a man be honored for other causes that do not render him worthy of honor. Now this savors of respect of persons. Therefore it is a sin to respect persons in showing honor.

I answer that, To honor a person is to recognize him as having virtue, wherefore virtue alone is the due cause of a person being honored. Now it is to be observed that a person may be honored not only for his own virtue, but also for another's: thus princes and prelates, although they be wicked, are honored as standing in God's place, and as representing the community over which they are placed, according to Prov. 26:8, "As he that casteth a stone into the heap of Mercury, so is he that giveth honor to a fool." For, since the gentiles ascribed the keeping of accounts to Mercury, "the heap of Mercury" signifies the casting up of an account, when a merchant sometimes substitutes a pebble [*Lapillus or calculus whence the English word 'calculate'] for one hundred marks. So too, is a fool honored if he stand in God's place or represent the whole community: and in the same way parents and masters should be honored, on account of their having a share of the dignity of God Who is the Father and Lord of all. The aged should be honored, because old age is a sign of virtue, though this sign fail at times: wherefore, according to Wis. 4:8, 9, "venerable old age is not that of long time, nor counted by the number of years; but the understanding of a man is gray hairs, and a spotless life is old age." The rich ought to be honored by reason of their occupying a higher position in the community: but if they be honored merely for their wealth, it will be the sin of respect of persons.

Hence the Replies to the Objections are clear. _____

FOURTH ARTICLE [II-II, Q. 63, Art. 4]

Whether the Sin of Respect of Persons Takes Place in Judicial Sentences?

Objection 1: It would seem that the sin of respect of persons does not take place in judicial sentences. For respect of persons is opposed to distributive justice, as stated above (A. 1): whereas judicial sentences seem to pertain chiefly to commutative justice. Therefore respect of persons does not take place in judicial sentences.

Obj. 2: Further, penalties are inflicted according to a sentence. Now it is not a sin to respect persons in pronouncing penalties, since a heavier punishment is inflicted on one who injures the person of a prince than on one who injures the person of others. Therefore respect of persons does not take place in judicial sentences.

Obj. 3: Further, it is written (Ecclus. 4:10): "In judging be merciful to the fatherless." But this seems to imply respect of the person of the needy. Therefore in judicial sentences respect of persons is not a sin.

On the contrary, It is written (Prov. 18:5): "It is not good to accept the person in judgment [*Vulg.: 'It is not good to accept the person of the wicked, to decline from the truth of judgment.']."

I answer that, As stated above (Q. 60, A. 1), judgment is an act of justice, in as much as the judge restores to the equality of justice, those things which may cause an opposite inequality. Now respect of persons involves a certain inequality, in so far as something is allotted to a person out of that proportion to him in which the equality of justice consists. Wherefore it is evident that judgment is rendered corrupt by respect of persons.

Reply Obj. 1: A judgment may be looked at in two ways. First, in view of the thing judged, and in this way judgment is common to commutative and distributive justice: because it may be decided by judgment how some common good is to be distributed among many, and how one person is to restore to another what he has taken from him. Secondly, it may be considered in view of the form of judgment, in as much as, even in commutative justice, the judge takes from one and gives to another, and this belongs to distributive justice. In this way respect of persons may take place in any judgment.

Reply Obj. 2: When a person is more severely punished on account of a crime committed against a greater person, there is no respect of persons, because the very difference of persons causes, in that case, a diversity of things, as stated above (Q. 58, A. 10, ad 3; Q. 61, A. 2, ad 3).

Reply Obj. 3: In pronouncing judgment one ought to succor the needy as far as possible, yet without prejudice to justice: else the saying of Ex. 23:3 would apply: "Neither shalt thou favor a poor man in judgment." _____

QUESTION 64

OF MURDER (In Eight Articles)

In due sequence we must consider the vices opposed to commutative justice. We must consider (1) those sins that are committed in relation to involuntary commutations; (2) those that are committed with regard to voluntary commutations. Sins are committed in relation to involuntary commutations by doing an injury to one's neighbor against his will: and this can be done in two ways, namely by deed or by word. By deed when one's neighbor is injured either in his own person, or in a person connected with him, or in his possessions.

We must therefore consider these points in due order, and in the first place we shall consider murder whereby a man inflicts the greatest injury on his neighbor. Under this head there are eight points of inquiry:

(1) Whether it is a sin to kill dumb animals or even plants?

(2) Whether it is lawful to kill a sinner?

(3) Whether this is lawful to a private individual, or to a public person only?

(4) Whether this is lawful to a cleric?

(5) Whether it is lawful to kill oneself?

(6) Whether it is lawful to kill a just man?

(7) Whether it is lawful to kill a man in self-defense?

(8) Whether accidental homicide is a mortal sin? _____

FIRST ARTICLE [II-II, Q. 64, Art. 1]

Whether It Is Unlawful to Kill Any Living Thing?

Objection 1: It would seem unlawful to kill any living thing. For the Apostle says (Rom. 13:2): "They that resist the ordinance of God purchase to themselves damnation [*Vulg.: 'He that resisteth the power, resisteth the ordinance of God: and they that resist, purchase themselves damnation.']." Now Divine providence has ordained that all living things should be preserved, according to Ps. 146:8, 9, "Who maketh grass to grow on the mountains . . . Who giveth to beasts their food." Therefore it seems unlawful to take the life of any living thing.

Obj. 2: Further, murder is a sin because it deprives a man of life. Now life is common to all animals and plants. Hence for the same reason it is apparently a sin to slay dumb animals and plants.

Obj. 3: Further, in the Divine law a special punishment is not appointed save for a sin. Now a special punishment had to be inflicted, according to the Divine law, on one who killed another man's ox or sheep (Ex. 22:1). Therefore the slaying of dumb animals is a sin.

On the contrary, Augustine says (De Civ. Dei i, 20): "When we hear it said, 'Thou shalt not kill,' we do not take it as referring to trees, for they have no sense, nor to irrational animals, because they have no fellowship with us. Hence it follows that the words, 'Thou shalt not kill' refer to the killing of a man."

I answer that, There is no sin in using a thing for the purpose for which it is. Now the order of things is such that the imperfect are for the perfect, even as in the process of generation nature proceeds from imperfection to perfection. Hence it is that just as in the generation of a man there is first a living thing, then an animal, and lastly a man, so too things, like the plants, which merely have life, are all alike for animals, and all animals are for man. Wherefore it is not unlawful if man use plants for the good of animals, and animals for the good of man, as the Philosopher states (Polit. i, 3).

Now the most necessary use would seem to consist in the fact that animals use plants, and men use animals, for food, and this cannot be done unless these be deprived of life: wherefore it is lawful both to take life from plants for the use of animals, and from animals for the use of men. In fact this is in keeping with the commandment of God Himself: for it is written (Gen. 1:29, 30): "Behold I have given you every herb . . . and all trees . . . to be your meat, and to all beasts of the earth": and again (Gen. 9:3): "Everything that moveth and liveth shall be meat to you."

Reply Obj. 1: According to the Divine ordinance the life of animals and plants is preserved not for themselves but for man. Hence, as Augustine says (De Civ. Dei i, 20), "by a most just ordinance of the Creator, both their life and their death are subject to our use."

Reply Obj. 2: Dumb animals and plants are devoid of the life of reason whereby to set themselves in motion; they are moved, as it were by another, by a kind of natural impulse, a sign of which is that they are naturally enslaved and accommodated to the uses of others.

Reply Obj. 3: He that kills another's ox, sins, not through killing the ox, but through injuring another man in his property. Wherefore this is not a species of the sin of murder but of the sin of theft or robbery. _____

SECOND ARTICLE [II-II, Q. 64, Art. 2]

Whether It Is Lawful to Kill Sinners?

Objection 1: It would seem unlawful to kill men who have sinned. For our Lord in the parable (Matt. 13) forbade the uprooting of the cockle which denotes wicked men according to a gloss. Now whatever is forbidden by God is a sin. Therefore it is a sin to kill a sinner.

Obj. 2: Further, human justice is conformed to Divine justice. Now according to Divine justice sinners are kept back for repentance, according to Ezech. 33:11, "I desire not the death of the wicked, but that the wicked turn from his way and live." Therefore it seems altogether unjust to kill sinners.

Obj. 3: Further, it is not lawful, for any good end whatever, to do that which is evil in itself, according to Augustine (Contra Mendac. vii) and the Philosopher (Ethic. ii, 6). Now to kill a man is evil in itself, since we are bound to have charity towards all men, and "we wish our friends to live and to exist," according to Ethic. ix, 4. Therefore it is nowise lawful to kill a man who has sinned.