ARTICLE II: ON DAMAGE INFLICTED ON OCCASION OF MILITARY SERVICE

824. Principles. - I. Soldiers are bound to nothing by reason of damage inflicted through a common action, unless the injustice of the war is established for them, because they are not formally unjust damagers. - Recall what was said concerning the Fifth Precept of the Decalogue, n. 480. q. 2° and following.

II. But soldiers in an evidently unjust war are bound concerning all damages which they inflicted through private action; and individuals are bound according to proportion concerning damages inflicted by the whole army, unless perhaps they were compelled to fight from grave fear. - See above concerning the unjust damager n. 746 and following, and concerning one participating n. 772. III.

III. But leaders or Princes are bound primarily and in solidum concerning the whole damage inflicted by the army, because they are truly commanding; or, if they did not command the damage, nevertheless they were bound to impede it by office.

825. Questions. - Query 1° Are individual soldiers, in default of the others, bound in solidum concerning the whole damage inflicted by the army?

Resp. More probably negatively, because individuals are not the cause of the whole damage, but only of a part. Moreover in practice they would be excused from absolute inability. - Lugo with others. Cf. n. 779. q. 3°. n. 780.

Query 2° To what are conscripted deserter soldiers bound?

Resp. 1° From obedience or from legal justice they are bound to return to the standards, supposing namely the justice of the law of conscription.

Except a) if they would meet grave danger to salvation, for example if means of confessing would not be at hand, etc., as can happen in some places; b) if, returning, they would be punished with death or other most grave penalties; c) if the war is evidently unjust.

Resp. 2° But certainly deserters are bound to no restitution, whether the law requires others in their place or not; because at most they injure legal justice, and probably (n. 827) they cooperate not unjustly toward the damage of others.

826. • Query 3° To what are those bound who hired themselves out for others and then deserted military service?

Resp. They cannot retain the price received, because a reason for retaining the money is lacking for them, since it is spent only on account of the burden of military service. Therefore they must restore it, and indeed to him from whom they received it in the case in which this man had to undergo military service or procure another soldier. Otherwise, to pious causes. Hence you easily resolve to whom those called "Bounty-jumpers" ought to restore.

827. • Query 4° To what are those designated by lot for military service bound, who withdraw themselves from it, or obtain exemption without true causes?

Resp. It can scarcely be denied that the opinion of those is probable who hold that the law of conscription is unjust. For, they say, it is not necessary for the common good, since the republic can sufficiently provide for its security by hiring soldiers for pay. Besides, they say, that law is opposed to distributive justice, since it imposes such a burden only upon those families having young men fit for military service. The probability of this opinion standing, the right of the Superior (of the Republic) commanding conscription becomes doubtful. But a Superior in doubt whether he exceeds his own power is not to be obeyed in a case in which, as in the present matter, the thing commanded is very difficult or exposes the subject to danger of grave damage.¹ Therefore those concerning whom in the Question are not to be compelled to restitution, whether they corrupt magistrates or physicians so that they be declared invalid by them, or deceive magistrates by lies, frauds, or previous mutilation, or desert the standards.

He to whom this opinion would seem improbable should take care not to urge the burden of restitution against conscripts imprudently, since most by no means think that injustice is committed, and otherwise they are rarely going to comply with admonitions.

Those conscripted by lot who desert the standards after they have obligated themselves by oath to military service sin, as is clear of itself, against religion. Yet for the most part they are exempted from the obligation of returning to the standards, which is implicitly contained in this oath, on account of the causes brought forward n. 825. q. 2°. They also sin on account of the lies, frauds, and mutilation by which they exempt themselves from military service; but not on account of injustice either toward the republic, if this must hire others in their place for pay, or toward those who by law would have to supply their place, because they use their own right, and that, as was said, practically certain. Nor do they sin by corrupting magistrates or physicians, since they redeem themselves from a vexation which, probably and therefore practically certainly, is unjust. Nor do the corrupted magistrates or physicians seem obligated to restitution either toward the republic or toward the corrupters; not toward the republic, because they seem to be equated to tax-collectors not exacting taxes which for a grave reason are judged unjust; nor toward the corrupters, because the price of a base work (in the case, of a lie), after it was furnished, can be retained (n. 834. q. 6°).

Query 5° What if a sufficient number of soldiers cannot be hired for pay?

Resp. 1° Even in this case the law will be unjust as to clerics (n. 112), and, if the law prohibits hiring another in one's place, as to those who are prepared to hire another.

Resp. 2° With these excepted, the rest from commutative justice must abstain from all fraud. The reason is that although the law by which military service is commanded, even in this case, obliges toward the republic from legal justice alone, nevertheless by force of the aleatory contract or of the drawing of lots an obligation of commutative justice arises toward those with whom the lot is drawn. Wherefore also physicians and magistrates exempting someone without just cause in this case, on account of the quasi-contract violated, which they entered into with the republic, must restore to it, and indeed in the first place; but the corrupters, as cooperators, in the second. But concerning the damage which was inflicted upon those who, by the frauds of those drawing lots with them, had to undertake the burden of military service, those who employed those frauds are bound in the first place, in the second place the physicians and magistrates corrupted by these, or favoring them.