19. On the Law of Taxes and Military Service

1. Nicasius is accustomed to transport by cart grain, wine, and other goods on which taxes are imposed. But lest he pay them, he passes by a hidden road, or by night, avoiding the officers of the treasury. But sometimes, by the straight road, by day, he passes securely before those very officers of the treasury, carrying nothing that is subject to tax; and he does this so that on other occasions he can likewise pass securely, since he is already known to the officers of the treasury, yet carrying hidden prohibited goods, tobacco, sugar, etc.

Q. 1. Does the law of taxes oblige in conscience? 2. What as to the case?

R. To the first, cf. I. M. 232. To the second: the matter indeed is controverted among the doctors. Thus St. Alphonsus, l. 3, n. 616, reports the doctrine of Sanchez and others, without handing down his own opinion: "Sanchez thinks that no one who openly passes by the straight road is held to pay tolls, by reason of passage through a gate or bridge, which are imposed for the securing of roads; for it would be most harsh to oblige strangers to know these statutes, at gates or bridges. And Sanchez, with others, thinks this probable even if someone hides the goods or himself; because taxes of this sort are so received that they are not owed unless demanded. But speaking generally of all tolls, Lugo thinks that peoples are to be admonished to pay taxes, but after the fact they are not to be compelled to restitution of the tax defrauded, if they probably persuade themselves that amid so great a multitude of tolls they have paid some unjust tax, or have contributed competently to public necessities." "A prudent confessor," says Struggl 32, "ought not so easily to condemn those who evade as guilty of mortal sin; and much less ought he to oblige them to restitution; for this could scarcely be persuaded to one in a hundred. Besides, the opinion which teaches that the laws of taxes and tolls are universally purely penal is defended by many doctors, and is commonly acknowledged to be truly probable." And Fr. Gury 751 says: "There is no doubt to anyone that the faithful are to be exhorted to pay all taxes diligently. Nevertheless the confessor is not held to ask penitents whether they are guilty of some defrauding; for this is altogether alien from common practice. The confessor has not been constituted like an officer of tolls or a public collector. But as regards the forum of conscience, generally the faithful, even the God-fearing, do not think that they commit sin, at least grave sin, nor that they are held to restitution, if they sometimes omit paying tolls, if they hide the goods on account of which the tax is demanded, if they avoid the officers. For the most part the confessor would accomplish nothing if he should attempt to shake them out of their good faith. Furthermore, the matter is subject to the greatest controversy among theologians, nor does it pertain to the confessor to settle it."

2. Sabas, a subdeacon, in order that he may be exempted from the law of military service, offers a certain moderate sum of money to Sabanus, a physician. Sabellus, noticing this, recently made a doctor in both laws and preparing himself for exercising the profession of advocate, offers a doubled sum of money to Sabanus. Sabinus, present in the hall of medical examination, since he is poor but an astute young man, feigns and assertively affirms an interior and hidden disease. And thus all are freed from the burden of military service.

Q. 1. Is the law of military service a merely penal and just law? 2. What as to the case?

R. To the first, cf. I. M. 171, 4; 228, 232, 1386. To the second: Sabas the subdeacon is by no means held by the law of military service. Wherefore he by no means sins by offering a gift to the physician, so that he may be declared incapable of military service. Sabanus the physician, since the law is unjust as regards Sabas, by declaring him incapable by no means sins. Nor indeed does Sabanus seem to be disturbed on this account, that he accepted from Sabas a moderate gift of money spontaneously offered to him.

Sabellus, corrupting the physician with money, cooperates in true injustice on the part of the physician, who is obliged from quasi-contract and office. Whence it is that, speaking in itself, both Sabellus and the physician are held in themselves to compensation of the damages which come to the other youth called to military service in his place. Speaking in itself; for in practice it is difficult to persuade this obligation; for often many act in good faith in this matter from ignorance, or hold the law as unjust. But Sabanus is not held to restore anything to Sabellus, since he has already declared him invalid: since, although the contract was illicit, nevertheless, the thing promised having been fulfilled, it probably is valid. But it would be otherwise if he had not yet declared him invalid. I. M. 959.

Sabinus, feigning and affirming a disease which he does not have, certainly sins against truth. He also sins gravely against legal justice, since there is question of a law directly regarding the public good, and altogether necessary for it; and therefore just; namely, speaking in itself. But does he also sin gravely against commutative justice, so that he is held to restitution? It seems more probable that it must be affirmed. For the law establishing that necessary soldiers be designated by lot, which can favor all equally, and consequently does not appear unjust from this head, constitutes a strict right, and confers it indiscriminately and equally on all, namely that those designated by lot be enrolled for military service, while others remain free; and if this right is injured by lies and frauds, consequently commutative justice is injured. Nevertheless, there are not lacking many who assert that the law is unjust, since only families having young men fit for military service sustain so great a burden. But this in reality does not seem to prove the injustice of the law. For on the contrary the law should rather be called unjust if such a burden were imposed even on those not fit. But it is by accident that this or that family has young men not fit. Furthermore, if the law had to be held as unjust, then concerning Sabinus and others similar to him it would have to be said that not only does he not sin against commutative justice, but also that he does not sin against legal justice. Indeed it would also have to be said that he does not sin against truthfulness by thus lying, but uses a legitimate mental restriction; and this in reality seems rather hard. - I. M. 1386; G. 757-761; Frassinetti tr. 10, diss. 7; Gennari, Consultaz. Mor. Can. Lit., Cons. 22.