Doubt II: Whether one is bound to restore customs duties he has defrauded

I SUPPOSE with D. Bonav. in 2. dist. 44. art. 2. quaest. 2. that subjects are held in conscience, from justice, to pay to the Prince the tributes and tolls justly imposed. The holy Doctor proves it from that passage of Matth. 22. where Christ defines: Render therefore to Caesar the things that are Caesar's, and to God the things that are God's. This opinion is that of Jesus Christ. The Apostle Paul follows him, Rom. 13. Render to all their dues: tribute to whom tribute: toll to whom toll. The holy Doctor urges the same at the place cited.

But tribute is a payment imposed on subjects by the Prince, according to each one's means, especially landed means, etc., for the Prince's dignity and the public expenditures to be sustained in the kingdom. Toll, however, signifies a payment for things that are exported from the city, or imported into it, or for the transport of goods across bridges and through ports, as Lessius notes, cap. 33. Tanner. disp. 4. quaest. 6. dub. 12. n. 336. with D. Bonav. in vita Christi, cap. 60.

But that the payment be just, four conditions are required, without which they are robberies, as the holy Doctor teaches in speculo animae, cap. 2. and I discussed more broadly t. 2. Tract. de Legibus, disp. 5. quaest. 11. The first is, that it be imposed by an absolved Prince; others, however, are excommunicated in the Bull of the Coena. The second, that the cause be just, that is, the public good, as for public debts, or expenditures, in peace and in war, or for the legitimate sustenance of the Prince. The third, that it be imposed only on things of commerce and the like. See Valentiam quaest. 6. punct. 6. The fourth, that it be done in a legitimate manner, or form, according to the proportion of goods, so that nothing is exacted from non-subjects either, or some subjects are exempted to the prejudice of others, as Tannerus notes. It is found in l. Omnium, as I shall say in doubt 3.

But whether, on the part of the efficient cause, they can be imposed by enfeoffed Princes. It is answered affirmatively. Therefore the Pontiff, the General Council, the Emperor, Kings, Princes, and Feudataries can impose tributes, as Valentia notes, loc. cit. Caietanus v. Vectigal. Medina quaest. 13. de restit.

On the part of the end you ask: Whether they can be imposed by the Prince to endow his daughter, to ransom his son, for decent recreations. And it is answered affirmatively. See Caspensem disp. 8. sect. 4. Covar. in reg. Peccatum, p. 2. §. 5. Valentiam at the place cited.

On the part of the form they must be imposed according to the proportion of means and strength; nor more than the causes require. Concerning which see Caietanum.

On the part of the matter, by civil law they ought to be constituted only in things which pertain to the commerce of buying and selling, and the like, l. Omnium, C. de vectigalibus. But not in those which one acquires for his own use and necessity, as Caietanus noted, and Angelus verb. Pedagium, §. 3. adding that a contrary custom does not avail in this; but that it can be introduced by custom, Valentia loc. cit. Navar. Manuali, cap. 17. num. 203. Antonin. 2. p. tit. 1. cap. 24. Sylvest. verbo Gabella, 3. num. 14. Valentia at the place cited admonish.

It is asked, therefore: Whether by some particular law, or custom, tributes can be imposed on those things which are acquired for necessary sustenance, as bread, wine, oil, salt, and the like.

The affirmative opinion Molina upholds, tom. 3. disp. 669. Suarez de Legibus lib. 5. cap. 15. Vasquez opusc. de restit. cap. 6. §. dub. 1. Azor. p. 3. lib. 5. cap. 21. quaestio 1. Malder. 2. 2. Tract. 5. cap. 6. Ioan. de Cruz in direct. p. 1. praecepto septimo, art. 3. disp. 1. Turrianus 2. 2. T. 2. disp. 14. dub. 3. Lessius lib. 2. cap. 33. dub. 7. Reginald. T. 1. lib. 10. cap. 25. n. 377. Molfesius summa, T. 2. tract. 12. cap. 23. But these last three say these gabels are licit under these conditions: First, when public necessity presses, and tolls cannot be had elsewhere, or do not suffice. Second, when this gabel is established by the free consent of the people. Third, when, for the security of the aforesaid things diverted another way, provision cannot otherwise be made. When they have been imposed by immemorial custom.

The negative opinion Caietanus defends, verb. Vectigal, Zanard. directorio p. 2. cap. 12. super septimum praeceptum, Medina p. 2. quaest. 96. art. 4. Sotus de Iustitia, lib. 3. quaestion. 6. artic. 7. Tolet. lib. 5. cap. 73. Angel. verb. Pedagium, Sayrus de Censuris, lib. 3. cap. 9. Bertazolus vol. 1. consil. 107. Roland. vol. 3. consil. 42. num. 18. Decius consil. 96. num. 5. et 18. Bonacina de contract. disp. 2. quaest. 9. p. 1. and Diana thinks it probable, p. 1. tract 17. resol. 28. although he judges the opposite more probable. The reason is, because the just form of the gabel is not observed; for in that form of tributes the Poor are burdened more than the Rich.

But it can be doubted: Whether a creditor of the Prince or of the city, by defrauding the gabel, can compensate himself the debt owed him.

Reginaldus denies it, Tom. 1. lib. 10. cap. 24. num. 383. Graffius p. 1. lib. 2. cap. 125. num. 39. when the gabels are leased to publicans, who pay the Prince a determined payment wherever; for then the loss falls on the Publicans, not the Prince.

Yet they assert this compensation to be licit: Petrus Navar. lib. 3. de restitut. cap. 1. num. 24. Lessius de Iust. lib. 2. cap. 33. dub. 10. Bonac. de contract. disp. 2. quaest. 9. p. 1. num. 12. who cites Vasquez and Molina. Bartholomaeus a S. Fausto also holds it, in spec. disp. 33. quaest. 37. Turrianus 2. 2 T. 2. disp. 46. dub. 3. Molfesius tomo 2. tract. 12. cap. 22. num. 142. Vega in summa p. 1. cap. 15. casu 10. Malder. 2. 2. tract. 5. cap. 9. dubitat. 16.

Yet this opinion is not proved to me, on account of the reason brought for the first opinion; nor does Diana answer sufficiently, p. 1. tract. 16. resol. 16., that the lessees of the Gabel do not receive a loss, because they lease the Gabels and Duties at a far smaller price; because they know the frauds of subjects.

For it is against it, because they are shaken enough by the ordinary frauds of subjects, unless they also pay the Prince's dues, by which indeed they are annihilated, immense as they are.

But if the doubt be: Whether the toll is unjust; many assert that the subject is held to pay. So Suarez de Legibus, lib. 5. cap. 18. num. 20. Vasquez de restit. cap. 6. §. 3. disp. 5. num. 78. Turrianus 2. 2. Tom. 2. disp. 46. dub. 6. according to that saying: In doubts the condition of the possessor is better; and the possessor (they add) is the Superior, who has authority. But Carbo quaest. 33. Sylvest. v. Gabella 4. num. 7. and others say they bind, if they are old; otherwise if new.

Yet that they are not held to pay them, Less. teaches, lib. 2. cap. 33. disp. 9. num. 67. Reginald. T. 1. lib. 10. cap. 25. sect. 1. num. 374. Megala p. 2. lib. 2. cap. 17. quaest. 8. num. 152. Navar. de restit. lib. 3. cap. 1. p. 3. dub. 13. num. 167. Salon. de restit. t. 1. quaest. 5. art. 4. controv. 2. Batthol. a S. Fausto in spec. disp. 33. quaest. 23. Sanchez in summa, tom. 2. lib. 6. cap. 3. num. 7. Malder. 1. 2. Tract. 5. cap. 6. dub 4. Diana p. 1. Tract. 17. resol. 59. The reason is, because better is the condition of the possessor; but the subject is in the power of his own liberty. He is subjected indeed to the Prelate; and in this matter possession favors the Subject. Tannerus inclines this way, disp. 4. quaest. 6. dub. 22. I refer these things to what was said first, 2. Tract. primo, Disputatione de conscientia.

SINCE, however, the chief difficulties in this matter are about the Formal and Final causes of tributes and tolls, namely that they be imposed for the public utility, and that they be imposed according to distributive justice; as the Doctors commonly say, Turrianus 2. 2. col. 1. disp. 44. dub. 1. and 2. Bonac. tract. de contract. disp. 2. quaest. 9. p. 1. Aragon. quaest. 77. art. 3. Valentia tomo 3. disp. 5. quaest. 6. puncto 5. Suarez de legibus, l. 5. cap. 14. num. 16. Barthol. a S. Fausto in speculo, disp. 33. quaest. 2. Salas de leg. quaest. 69. tract. 14. disp. 15. sect. 10. num. 118. Lessius lib. 2. cap. 33. dub. 1. and 2. Reginald. T. 1. lib. 10. cap. 25. num. 372. Ledesiin. tom. 2. tract. 7. cap. 2. Malder. 2. 2. tract. 5. cap. 6. dub. 2. Layman lib. 3. sect. 5. tract. 3. p. 1. cap. 3. Tannerus disp. 4. quaest. 6. dub. 12. num. 323. and 344. Moltesius summa, Tom. 1. tract. 12. cap. 22. num. 37. Sylvius 2. 2. quaest. 66. art. 8. Villalobos T. 2. tract. 8. dub. 13. num. 14. and 15. Aragon. 2. 2. quaest. 62. art. 3. Vasquez de restit. cap. 5. §. 2. dub. 1. and 2. Molina de Iust. Tract. 2. disp. 667. and others, whom Diana reports, p. 1. Tract 3. resol. 2. Diana himself resolved many doubts on these.

FIRST: Whether it is licit for a King to impose tributes in one Kingdom for the expenses made in his other Kingdoms, e.g. the King of Spain in the kingdom of Naples, for the expenses of Flanders. He answers affirmatively with Turriano 2. 2. T. 2. disp. 40. du. 1. Vasquez opusc. de restit. cap. 6. § 3. disp. 1 num. 7. and gives, by way of example, the reason in the King of Spain, who in guarding the religion stands alone against heretics and Turks, by whom he is little favored, and on whom the whole weight of the Christian Republic depends. He pursues this hyperbole at length.

He ASKS second. Whether a King, who through immoderate expenses on games and unjust wars has fallen into poverty, can justly impose tributes.

He answers affirmatively with Maldero 2. 2. tract 5. cap. 6. dub. 4. L. st. l. 1. cap. 33. dub. 6. num. 48. Turrianus 2. 2. t. 2. disp. 44. dub. 2. Molina de iust. tract. 2. quaest. 667. and others. The reason is, because the King's need turns into the Kingdom's loss. But Lessius notes that the Prince is held to moderate all superfluous expenses.

The GREATER difficulty is about the Formal cause.