Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article II. On Damage Inflicted on Occasion of Military Service
- Principles. - I. Soldiers are held to nothing by reason of damage inflicted through a common action, unless the injustice of the war is certain to them, because they are not formally unjust damagers. - Recall what was said concerning the fifth precept of the Decalogue, n. 406 and following.
II. But soldiers in a war evidently unjust are held for all damages which they inflicted through private action; and each is held pro rata for damages inflicted by the whole army, unless perhaps they were compelled to wage war from grave fear. - See above, concerning unjust damage, n. 658 and following.
III. But commanders or Princes are held primarily and in solidum for the whole damage inflicted by the army, because they are truly those mandating; or, if they did not command the damage, nevertheless they were held from office to impede it.
- Questions. - Q. 1. Whether individual soldiers in the defect of others are held in solidum for the whole damage inflicted by the army?
Resp. More probably negatively; because individuals are not the cause of the whole damage, but of part only. Moreover in practice they would have to be excused from absolute inability. - Lugo with others.
Q. 2. To what are conscripted soldiers who are deserters held?
Resp. 1. From obedience or from legal justice they are held to return to camp. - Thus commonly.
Except: 1. if they would meet with grave danger to salvation, for example, if the means of confessing were not at hand..., etc., as can happen in some places...; 2. if, on returning, they would be punished with death, the galleys, or other very grave penalties; 3. if the war is evidently unjust.
Resp. 2. But certainly deserters are held to no restitution, where the law does not require others in their place; because in no way do they injure commutative justice, since they inflict damage on no other. (Thus in France from the new law of conscription given March 10, 1818.)
- Q. 3. To what are those held who hired themselves in place of others, and then deserted military service?
Resp. Of themselves they are held to restore the price accepted to him from whom they accepted it, because they lack a reason for retaining the money, which is expended only on account of the burden of military service.
Nevertheless this seems to be valid only where he who hired a soldier in his place is exposed to the danger of undergoing military service. But that danger is not given in France, except in the first year of military service, for which alone the hirers are responsible.
- Q. 4. To what are those designated by lot for military service held who withdraw themselves from it, or obtain exemption without true causes?
Resp. 1. Those who corrupt magistrates or physicians so that they may be declared invalid by them, are certainly held to restitution 1. - Thus all.
1 Indeed you will reconcile these things with difficulty with those which the Author then subjoins according to the sentence of others. Nor in this matter is the distinction of any moment which is had between this and the following hypothesis. For it is the same whether those designated by lot for military service contrive by themselves alone the fraud by which they withdraw themselves iniquitously, or whether they use physicians or magistrates as partners of the fraud.
Resp. 2. Likewise, according to the more common sentence, those who deceive magistrates by lies, frauds, or prior mutilation. The reason is that after the lot, as the laws establish, has defined who ought to undergo the burden of military service and who are exempt from it, the rights of justice certainly demand that those already assigned to military service not use iniquitous means for shaking off the burden which must necessarily fall back upon those exempt. - Thus Bouvier, de Restitutione, quaest. 2, art. 2. - Gousset, n. 1002. - Collat. Andeg., etc.
Nevertheless several others deny, whose sentence appears sufficiently probable. Their reason is that these conscripts are not an efficacious cause why others are required; for deception neither physically nor morally incites the magistrates to enrolling others. Nor are they even an unjust cause, since it is not certain that others have a strict right that those designated by lot set forth into military service. Therefore, although they sin against legal justice or obedience owed to the law, nevertheless they do not sin against commutative justice, and therefore are not held to restitution. Thus Collat. Anic. de Restit., n. 172. Lyonnet admits each opinion as equally probable, de Restitutione, at the end. - Nor are there lacking those who think that this law is opposed to distributive justice, since only families having young men suitable for military service undergo so great a burden.
Whatever may be the case, in practice it will be most wise, even in the first sentence, not to urge very strongly the young men who have freed themselves from military service by the aforesaid means 2. For very many by no means think that injustice is committed, and otherwise they would rarely obey warnings. - Thus the cited authors. - See Casus, n. 757 and following.
2 If the second sentence also has its probability, it will not only be most wise in practice not to urge to restitution, but it would be unjust to exact restitution. And the reason is manifest; for it is unjust and contrary to the axiom that the condition of the possessor is the better, to impose a certain burden of restitution when it is probable that no obligation of this burden exists.