§ 2. ON VARIOUS UNJUST DAMAGERS

951. The unjust damagers concerning whom one must especially treat are: 1. a homicide; - 2. a stuprator or fornicator; - 3. an adulterer; - 4. one defrauding taxes; - 5. one inflicting damage by occasion of military service; - 6. one negligent in fulfilling an office. Concerning one who causes damage in spiritual goods, or in other goods, see nn. 513, 928, 1205, 1214.

In order that it may be known what and to whom a homicide must restore, a threefold genus of damages must be distinguished, which can be inflicted in goods of fortune through homicide, namely damages which are inflicted: 1. on the one killed himself before his death; - 2. on his family, that is, on his children, parents, and wife; - 3. on his creditors.

We are not speaking of compensation to be given on account of bodily torments, or the other damages which bring no loss in goods. For from these there does not arise an obligation of restoring except after the sentence of a judge, if namely positive laws grant the damaged parties the right of exacting reparation. Cf. German Law, 847.

952. PRINCIPLES. I. A homicide or mutilator is held to compensate all temporal damages which, from his crime, have been inflicted on the one killed or wounded. The reason is clear from the things said above (n. 948); for killing is of itself the cause of damage. - The one attacked himself who, with true deliberation exceeding the moderation of inculpable defense, kills the attacker, is held to compensation of damage. For the enemy, on account of his unjust aggression, does not altogether lose the right which he has to life. St. Alphonsus, III, 637, with Lugo and others. Cf. the things said in n. 734.

The homicide is held to compensate all damages, and indeed: a) damage emerging, or the expenses of treatment, etc.; b) profit ceasing, that is, the profit of which the one struck has been deprived during the time of his infirmity because of the interruption of labor, and which he had in hope; yet with the expenses which would have had to be made to obtain the profit deducted according to prudent estimation; likewise with funeral expenses deducted, unless perhaps on the occasion of the death inflicted, for example outside the fatherland, greater expenses had to be made, or unless he is bound by the judge to refund them.³ In Germany he is held to pay them (§ 844).

Compensation must be given not only to the wounded man himself, but these debts, as real, are to be paid to the heirs of the slain person, whoever they are; because all heirs succeed to all the real rights of the deceased. Except if the deceased before death validly remitted these things to the killer. We say validly; for he would remit them invalidly if he were so poor that he could not have made the necessary expenses from his own goods, or if from such remission others, for example physicians or benefactors, would be unjustly burdened (III, 630; H. Ap., X, 86).

953. II. A homicide is held to repair for the family of the one struck the profit ceasing for them and the damage emerging on account of the wounding or death of the one killed. The reason is that all the aforesaid persons, but not brothers or sisters, are judged morally one person with the one killed as regards sustenance; hence even after his death the damage is continued in them (III, 631; H. Ap., X, 87; German Code, 844).

Let it be noticed: 1. The reparation of damage must be made according to the value of the hope which each one had, considering the age, health, etc., of the one killed or wounded, of receiving goods or advantages from him if he had not been killed or wounded. 2. Compensation to be made to the aforesaid persons is not from the title of inheritance of the one killed, but from the title of damaging inflicted on them, and therefore it could not be condoned by the one killed. 3. If there is no damage, either because those persons receive sustenance equally from elsewhere, or because the deceased was bringing no utility to them, there is no obligation of compensating. 4. The best mode of compensating is a peaceful settlement with the persons mentioned (III, 631).

954. III. A homicide is held to restore, in proportion to hope, to all those whom he directly intended to harm. Thus, for example, he is held to compensate damages to consanguineous creditors, or to the poor, whom he wished to frustrate of the hope of payment, inheritance, or alms; because each one has a right not to be directly and by force impeded from obtaining a just good.

It was said: whom he directly intended to harm; because if damages of this kind were only foreseen and not intended, a certain nexus is lacking between the homicide and the damages that followed; those are judged to have happened by accident, and it is more probable that the killer, in this case, is held to nothing by reason of justice (cf. 921, 949, Condition 2). St. Alph., III, 632, 633.⁴ See nevertheless the things said in n. 727, II, v. fin.

IV. In defect of the homicide, his heirs are held to compensate the aforesaid damages, even if the killer is punished with death. The reason: punishment satisfies vindicative justice, and therefore legal justice, but not commutative justice. Heirs succeed to all the strict burdens of the killer. Except if the injured parties are judged to yield their right, from the fact that they do not seek restitution (III, 631, 705).

955. Questions. QUAER. 1. To what is one provoking to a fight held, if he kills the one accepting, for example in a duel?

Resp. According to the opinion of Suarez, he is held to restore the damage, because the provocation was a true cause of the damage. - But Lugo (disp. 11, n. 66), with Vasquez and others, more probably contradicts; because although the one provoking sins against charity, nevertheless the other, since he freely accepts the fight, renounces his right to the reparation of damage (III, 638).

Note. Another question is related to this question: whether there is an obligation of restoring if one provoking to a duel is the cause why the one provoked, refusing the contest, is expelled from the army, or undergoes other damages.

Resp. It is not established that the provocation is the cause of itself of the damages which the one provoked suffers; rather it itself is their occasional cause; hence restitution is not to be imposed. Cf. the things already said in n. 949, Condition 2 and the added note.

QUAER. 2. To what are administrators of railways or ships held, if, the rules of prudence not having been observed, someone is killed or wounded in them?

Resp. They are held to pay as much as the judge by equitable judgment decrees must be paid; and they sin and are held to restore if by fraud, deceit, or bribes they induce the judge to render an unjust sentence (Konings, n. 808, q. 4).

Note. It is counsel that the confessor impose alms and Masses for the benefit of the one killed, for the killing itself (III, 631, 5). Cf. the things said in n. 928. If the homicide is imputed to an innocent third party, see n. 2302, q. 1 and 2306 seqq.

956. Here stuprator is understood in a broad sense as whoever has had relations with a free and honorable person, that is, one who is neither married nor a prostitute. Hence what we shall say concerning a girl is to be understood equally concerning a widow of good reputation (III, 646, fin.; Conf. dir., X, 38).

Now a threefold case must be distinguished: either the woman consented spontaneously in the crime; or she was induced by force or fear; or under a promise of marriage.

957. PRINCIPLES. I. He who has violated a consenting girl, without any promise of marriage, is held to nothing, of himself strictly speaking, except to the education of the offspring, if perhaps one is born. The reason: 1. he owes nothing to the girl, even if he solicited her with gifts or prayers, because injury is not done to one knowing and willing; 2. he owes nothing to the parents, because he did not violate their right, since the daughter is mistress of her own body. Hence authors very commonly say "that the man is not held to make good to the father the damage of goods by reason of the greater dowry which he needs for placing the daughter in marriage" (H. Ap., X, 91).

We said 1. Of himself; because exception is made: a) if the stuprator has manifested the delict; for then he is held concerning the damages following from defamation; b) if he is very rich, and the girl poor; for in this case she is presumed to have consented under the condition of some compensation; c) according to some, if by the sentence of a judge he is compelled to repair damages; but in truth, since laws presume deception or force, such a sentence, if the woman truly consented spontaneously, does not bind the conscience (cf. n. 191).

2. Strictly speaking, or in the rigor of justice; for the stuprator, at least from piety, against which he offended together with the girl, ought to repair the injury of the parents by some signification of honor or by asking pardon, unless perhaps they are ignorant of the delict, or are presumed to refuse such a reparation of honor. Thus probably St. Alphonsus with Sanchez, Croix, Lugo, etc., against St. Thomas and St. Antoninus, etc., who equally probably say that he is held from justice to repair the honor of the father (III, 641).

3. Except to the education of the offspring; for since the stuprator and the girl are equally in fault, both are held, and indeed from natural right, equally and in solidum, to feed and educate the offspring until it can provide for itself. Nor can any disposition of law or sentence of a judge exempt from this obligation (cf. n. 700). Cf. French Code, 340; German, 1708; Austrian, 166-171.

Note. If the girl has had relations with several lovers, it is not licit for her of herself to denounce whomever she prefers as the father of the offspring. Similarly this is not licit for the parents or guardian of the girl. Nevertheless, if civil laws (cf. Austrian Code, 163), as punishment of the delict, oblige the fornicator, as such denounced, to feed the offspring, the girl or parents do not seem to act unjustly in denouncing one of the lovers, in the case namely in which she herself does not know who precisely is the father of the offspring. Thus Noldin, II, n. 471; Delama, n. 391, note; Lehmkuhl, Burgerl. Gesetzb., 1717.

958. II. He who has violated a girl by force or fraud is held to make good all damages of honor and fortune that come upon both the girl and the parents. The reason is that he is the efficacious and unjust cause of these damages.

We said who by force, namely absolute; because if the violence was only moral, that is, if threats, or reverential fear, importunate prayers, or similar things drew the woman to consent, the seducer is held only to part of the damages (III, 642; H. Ap., X, 92; German Code, 825).

From these things it is inferred: 1. If the crime is manifest, the stuprator must indeed ask pardon from the parents, unless they do not care for a matter of this kind; but for the girl, he must increase the dowry, so that thus she may be able to marry equally well as if she had not been violated. Yet he is not held to marry her, since he did not promise this, unless perhaps the damage cannot be repaired otherwise, or unless by the sentence of a judge he is compelled to marriage (III, 641, 646).

2. If offspring has been conceived, he alone is held to sustain the expenses of nourishment and education, or to refund them to the mother; in Germany, § 1708, up to the completed 16th year, and further if this is necessary because of certain defects of the offspring. And this obligation indeed urges by force of natural Law; therefore even in the case in which the law would not favor the mother or the offspring and would deny every civil action. Cf. Gousset, on French Code, a. 340; Spanish Code, 464.

3. If the crime is occult, and the girl marries equally, the stuprator is held to nothing. For he owes nothing for the violation of honesty, which is not commensurable with money; nothing for damage, because there is none; nothing for the injury of the parents, because they are ignorant of the crime. Nevertheless, if the woman is afterward badly treated by her husband because of the known defloration, he is held to compensate the damage to her (III, 642; Lugo, disp. 12, s. 1).

959. III. He who, under a promise of marriage, whether true or fictitious, has violated a girl, is held to accept her for himself as wife. The reason is: a) because such damage cannot be repaired adequately in any other way; b) because in unnamed contracts, do ut des, facio ut facias, as soon as the other party has fulfilled his onerous part, the other also is held, and indeed from justice, to fulfill his own, provided, as in the case, he can do it without sin. Nor does it stand in the way that he promised fictitiously, because he is held, precisely in order to remove the injury, to furnish true consent, when this is necessary so that frauds, which would impede human commerce with common damage, may be removed from contracts (III, 642, q. 1; Vind. Alph., P. III, q. 16). Thus the common and to-be-held opinion, which in practice the S. C. of the Council has confirmed several times (A. S. S., I, 341; III, p. 304).

Note. The Decrees of April 19, 1908, concerning betrothals innovated nothing as regards the present matter. Truly only those pacts are betrothal pacts which are made in writing; but the obligation of entering marriage can arise not only from betrothals, but also from an onerous unnamed contract (cf. n. 1036). See Lehmkuhl, I, 1250; II, 842.

Exceptions. 1. Only the obligation of entering marriage ceases, the obligation of restitution remaining: a) If the girl yields her right, even if the parents dissent; because the right to marriage properly belongs to her. - b) If the law of avoiding scandal or the dishonor of the family stands in the way. c) If a very bad outcome is feared, say, if the girl is known to be too frivolous, or if she is non-Catholic and the perversion of offspring is feared, etc. d) If canonical law stands in the way, for example because of consanguinity, or a vow, for example of chastity, etc., and dispensation is not usually granted, or only with great expenses or inconveniences, which were by no means foreseen. Otherwise, more probably, in the contrary case; because he who is held to the end is held to the means, in our case, to the petition of dispensation. - e) If civil law stands in the way, for example because of the dissent of the man's parents, and marriage becomes morally impossible. - f) If the woman has already been dishonestly corrupted, that is, outside marriage; because to enter marriage with such a woman, at least in many regions, is valued much more highly than that which the stuprator received from her, and otherwise the damage inflicted on her can be repaired sufficiently in another way. g) If the seducer is far more noble or richer, although the girl could not have noticed the deception; because the one seduced, in these circumstances, cannot reasonably intend the reparation of the injury through marriage, and the seducer by joining her to himself in marriage would render more than equal to the injury inflicted (cf. St. Alphonsus, III, 643, dub. 2, 646-650). Yet according to some, disproportion in riches does not free from the obligation of entering marriage.

2. The very obligation of repairing damages also ceases: a) If the seducer is prepared to stand by the promise, and the woman without sufficient reason refuses. Otherwise, if she refuses justly, for example because the man pretended to be of better or equal condition, when he is of lower. b) If the woman from words or other circumstances could easily have noticed the deception, say if she knew the seducer to be much superior to herself in nobility or fortune; for then it can deservedly be presumed that she wished or feigned the deception. - c) If the woman deceived the seducer by pretending herself a virgin; for deception compensates deception. - d) If she is defamed for this reason, that she herself manifested the stuprum perpetrated secretly. e) If the promise of marriage was not the motive cause of the girl's consent; because, in such a case, it must be interpreted like any other gratuitous promise (cf. n. 1062). Let St. Alph., III, 645-648; Lugo, disp. 12, S. 2; Lessius, l. 2, c. 10, dub. 3 be read.

960. It is asked. What if the man has only touches with a virgin?

Resp. He is not held to marriage, because touches alone are not of so great an injury that they induce the obligation of entering a fictitiously promised marriage, nor of so great weight that they do not suggest to the woman the suspicion of fiction; provided, and this is excepted, the woman was not noble or very honorable; or the man had requested only touches with a promise of marriage, and the girl remained marked with infamy because of those touches now made known, or because of notorious familiarity (III, 645; H. Ap., X, 95).

Note. Modern laws do not oblige the deceiver to marriage, but generally oblige him to the reparation of damage inflicted by the unfulfilled promise (Austrian Code, 46; Spanish, 464; German, 825, 847). But if someone has satisfied these laws in good faith, he does not seem to be disquieted. See other things in n. 963, q. 2 and 3.

Here it is a question only of adultery from which offspring has been born and damage has followed; for personal injury alone inflicted on a spouse cannot be repaired by money (cf. n. 928).

961. PRINCIPLES. I. If each adulterer freely consented in the crime, each is held, in solidum, to the reparation of the damage. The reason is that each was the efficacious and formally unjust cause of the whole damage (III, 655, 659; Lugo, disp. 13, s. 1; Lessius, l. c., dub. 5).

Hence: 1. Both are held to restore all expenses which the husband made for feeding and educating the spurious offspring. - 2. If the spurious child has received an inheritance with legitimate children, or with other legitimate heirs, they are held to compensate these in proportion. - 3. An adulteress who does not have separated goods must repair the damage in the better way she can, for example by administering the family property more diligently, by subtracting from herself superfluities in clothing, in food, etc. But each is held to repair damages insofar as he or she can without detriment to a higher good and without the bringing in of a greater evil (cf. n. 1018). See St. Alph., II, 652.

"Some authors say that if the adulterer had not induced the mother to suppose the offspring among the legitimate, but in this had behaved himself negatively, then he would not be held to maintenance, or at least not to the inheritance. But we say, with the common opinion, that he is obligated to both, because he is always the proximate moral cause of the aforesaid damages, by casting the adulteress into the moral necessity of supposing the offspring. But it must be said otherwise if the adulteress, without her infamy and danger of supposition, can keep and feed the offspring outside the house" (III, 659; H. Ap., X, 101).

962. II. If one adulterer by force, fear, or fraud extorted the consent of the other, he alone must repair the whole damage. The reason is that he is the efficacious and unjust cause of the whole damage. Yet if he fails, the other is held, unless he or she suffered absolute force or invincible deception (cf. n. 995, 3).

963. Questions. QUAER. 1. Whether an adulteress who can repair damages only by manifestation of the crime is held to manifest it?

Resp. Negatively, regularly speaking. The reason is: 1. because in this way, for the most part, she cannot repair damages; for no one is held to believe one witness, although most approved, and therefore neither is a spurious son held to believe the mother asserting that he is illegitimate, unless those indications accede which in the external forum would prove the matter evidently, for example impotence or absence of the husband, etc.; 2. "because rarely can it happen that from such manifestation she would not undergo enormous damages," say grave infamy, savagery, discord, etc. Indeed, generally it is of greater interest for the husband himself and the legitimate children that the matter remain hidden.

Except: a) if she is already of ruined reputation and does not fear the grave indignation of the husband; b) if otherwise public damage is feared which can be impeded, for example if the spurious child is of ruined morals and ought to succeed in the principate; c) if there is probable hope that the spurious child will believe her and renounce the inheritance. The reason is that she is excused when her own damage certainly and notably outweighs another's damage; but by no means when it is equal or only a little exceeding (III, 653 seqq.).

QUAER. 2. To what is an adulterer held who doubts whether the offspring is his or another's?

Resp. 1. If he doubts whether it is his or the husband's, he is held to nothing. For in this case the damage is not established; and the offspring is presumed to be the husband's unless the contrary is proved (III, 657).

2. If the doubt is between two adulterers, whose the offspring is, it is absolutely more probable that neither is held to restitution, and the same holds for fornicators. The reason is that no one is held to repair damage unless it is morally established that he was the cause of the damage.

Except: a) If the second adulterer noticed, which is rare, that by his deed he would be the cause why it cannot be known whose the offspring is. In this case, he alone would be held to the damage inflicted from that uncertainty. b) If by common counsel they perpetrated adultery; for then each would be held in proportion, and, if the other fails, to the whole (cf. n. 908, III, and 984, Quaer., and n. 992, 2).

Note. As regards adulterers who send offspring to the hospital, see the things said above in n. 700, 2, with note.

964. NOTIONS. A tax or duty, taken generically, is everything which by legitimate ruling power is imposed to be paid by citizens for sustaining the common burdens of the republic.

Taxes today generally are of two kinds. Some are called direct, which immediately and by name affect the person, or his goods, according to the estimation of faculties. Of this sort are real taxes, for example on fields and houses, and personal taxes, for example for a family and its members or for the exercise of commerce.

Others are indirect, and fall immediately indeed on things or merchandise, but mediately on persons. To this class especially come duties concerning merchandise to be made or transported, and tolls concerning things to be sold or bought; likewise those which must be paid for the right of succession, for the registration of contracts, for the sealing of letters, for salt, tobacco, etc. Cf. Waffelaert, de Just., II, n. 414; Vermeersch, o. c., n. 97; Willems, Philos., III, p. 505; H. Pesch, die Soz. Frage, I, p. 144; Staatslexicon, v. Steuern.

Note. Taxes are not all those things which are imposed by the Office of posts or railways, etc. In all these things the State performs work as though a private man and enters a true contract with private persons. Yet very many statutes which are laid down by administrators are merely penal, for example that money not be joined to letters, that a ticket not be handed to others, etc. Cf. Genicot, I, p. 574; Ami du Cl., 1906, pp. 265, 367, 467; 1911, p. 369. The author of the article in the periodical Linz. Quart. Schr., 1901, p. 388, seems to embrace the stricter opinion.

965. PRINCIPLES. I. All those in whose hands is the supreme administration of affairs can impose just taxes. The reason: this is necessary for sustaining common burdens.

We said 1. Just taxes: for since it is a question of an imposition burdensome to peoples, the burden must be divided equally.

But taxes are just if there are present: a) a grave cause, that is, the necessity of the common good, to which the worthy sustenance of the prince deservedly pertains, but not the mere utility or abundance of the prince; b) proportion of the tax, both with necessity, lest the people be burdened more than is equitable, and with the riches of individuals, so that those who have more ought also to pay more. Taxes are also just if there is lacking lesion of privileges conceded by the law of a Superior, for example of real immunity as regards clerics (cf. n. 201).

2. Can impose, and indeed in conscience, since supreme authority can direct subjects to their proper end. Yet from this it does not follow that all just taxes oblige in conscience, as we shall see immediately.

3. All those in whose hands, etc. For the imposition of taxes, since it tends to the ultimate and universal good of society, can arise only from supreme authority.

Hence these can impose them: a) emperors, republics, princes, together with assemblies if they exist; b) councils and Supreme Pontiffs, by reason of spiritual governance (cf. n. 873); c) cities, communities, with the prince approving.

966. II. Officials and ministers are obligated from commutative justice to the just exaction of taxes. The reason: for whatever is held concerning the obligation of paying taxes, they are obligated to exact by office, by stipend. Therefore from commutative justice.

Yet from the presumed will of the Superior, collectors can act more benignly with the poor, with those who diligently pay, or who carry goods for their own use (III, 616).

967. III. Those defrauding direct taxes regularly sin against legal justice alone; those defrauding indirect taxes violate a merely penal law. The reason for the first is that subjects in general are held in conscience to observe just laws which directly conduce to the common good; which belongs to legal justice. To this pertain the words of the Apostle (Rom. 13:5): Render ... tax to whom tax is due. The reason for the second is that, as regards indirect taxes, the ordinary indications of merely penal laws are present: a) a very great fine; b) not so intimate a connection with the common good; c) disproportion with the state of fortune of each one, since at times certain indirect taxes burden the poor more than is equitable; d) the practice of the timorous; e) finally extrinsic probability. Cf. n. 183, 2.

We said 1. Those defrauding direct taxes, etc. Therefore we hold a middle way between the opinion which proclaims that all taxes oblige in conscience, and the opinion which says that all are merely penal.

The first opinion has as patrons Sanchez, Lacroix, Lessius, Lugo, etc.; among moderns Schindler and a few others. The second is held by Genicot, Bucceroni, Berardi, Gury-Ferreres. - St. Alphonsus (III, 616; H. Ap., X, 81) rather inclines to the opinion of Lugo and Lessius, and advises this to peoples (see ed. G., II, p. 96). Aertnys, l. III, 377; Lehmkuhl, I, 1173; Noldin, II, 314; Hamm, Steuermoral, p. 310; Porpora, Theol. mor., p. 383 defend our opinion.

Yet let it be noted: a) Although from what has been said it follows that there is an obligation of duly declaring the state of one's goods, so that the quantity of direct taxes to be paid by each can be determined, from this it does not follow that all things must be indicated to the line. Generally, as is established from custom concerning the value of buildings to be determined, to depress 1/4 or 1/3 below the value, even with an oath acceding, is not illicit (Lehmkuhl, l. c.).

b) In doubt, whether negative or positive, concerning the justice of a tax, there is no obligation of paying. Nor does the axiom stand in the way here: A commanding Superior must be obeyed in doubt; because the subject here must furnish a thing evidently burdensome and damaging, and these inconveniences, together with doubt concerning the power of commanding, outweigh the possession of the Superior (III, 617, ed. G., II, p. 100). But collectors, in doubt concerning the justice of the tax, are held to exact it (ib.).

2. Regularly. For it can happen that from the mind of the legislator or from usual interpretation, even as regards direct taxes, the matter is judged as merely penal.

In England, with Crolly testifying (de Rest., n. 1032), tax laws universally are thought to oblige in the manner of penal laws. But in France and in Germany our conclusion is rather commonly admitted.

3. They sin, indeed not always gravely. But grave matter must be measured not from the quantity alone of the taxes defrauded, but also from the hope which the State has of recovering its right, and from the gravity of the harm which perhaps comes upon others from non-payment.

From this Schindler (II, p. 803) concludes that for gravity of matter in this case a greater sum is required than if it were a question of damage inflicted on the State in goods already possessed.

4. Against legal justice alone, so that from non-payment no obligation of restitution can be constructed (Linz. Quart. Schr., 1909, p. 484 seqq.). Cf. Pastor bonus, 1908-1909, p. 67.

Therefore we depart altogether from the opinion of the distinguished Marres, Waffelaert, Koch, Linsemann, and others, who try to demonstrate that taxes oblige from strict justice (see their argument in Genicot, I, n. 574).

Note. In one case there would be an obligation of paying taxes from commutative justice, if namely a certain and determined quota had been imposed by authority on some group, for example of merchants or notable persons (Kontingentierte Steuern). For then, when one does not pay, others of the same category would certainly be held to pay more (Lehmkuhl, I, 1170; Schindler, l. c.).

968. Consequences. I. They sin and are held to restitution:

1. Legislators or inferior ministers who, in the distribution of burdens, for example in municipalities, knowingly are the cause why someone pays more than is due. For each one has a strict right not to bear an unequal burden.

2. Collectors. They are held to restore: a) to private persons, if they exact anything from them beyond the legal tax; b) to the treasury, if they have not employed the diligence due and suitable for exacting the tax; if, without a just cause, they have acted leniently or dissemblingly toward someone, so that he could defraud the whole duty or a respectively notable part of it; if by not imposing fines they knowingly add boldness to those defrauding, and the treasury thence undergoes damages; if they do not exact fines after the sentence, otherwise probably in the case in which no sentence has intervened; or if in any other way whatever they have connived with defrauders. For they must fulfill their office from justice, even if the law were merely penal (IV, 237).

3. Defrauders. These certainly are held to restore to the treasury, or according to others to pious causes: a) if from an express or tacit pact with collectors they have avoided payment of a just tax; b) if, by force employed toward them, they have refused to pay either a tax or a justly imposed fine; c) if by reason of a tax or fines which they justly paid, they have secretly stolen something. For in these cases justice is openly injured.

969. II. They are excused, at least from injustice, and on account of custom or interpretation sufficiently received: 1. All those from whom taxes were not sought. Wherefore, if there is no one present who exacts the duty, a merchant can without fault omit payment of the tax which is accustomed to be sought by reason of passage through a gate or over a bridge. Indeed Sanchez with others thinks it probable that not even those sin, at least against justice, who purposely hide themselves or their merchandise in order to avoid the request of the tax. The reason is "because taxes of this kind have been so received that they are not owed unless sought." 2. Those who, when questioned by collectors what merchandise they are carrying, what merchandise or at what price they have sold it, what is the value of goods accepted by right of succession, etc., weaken the truth. For since the collector could proceed with the greatest rigor and verify the matter, if he does not furnish this, he indicates sufficiently that he wishes to act humanely, and he is presumed not to conduct himself thus without reasonable cause. And this has force especially when the tax is very burdensome or doubtfully just.

3. Those who are so poor that, if they paid taxes, they could not feed themselves and their own, whether because they carry off moderate profit from their commerce, or are burdened by numerous offspring, or because they are oppressed by another's money, etc. "For natural Right demands this, that one first feed himself and his own, and then pay taxes" (III, 616, 617). Cf. Sanchez, Consil., l. 2, c. 4, dub. 10, n. 11, 12.

970. PRACTICAL RULES. Peoples indeed are to be admonished that they pay taxes. But after the fact, they are not to be compelled to restitution "if they probably persuade themselves that in so great a multitude of duties they have paid something unjust, or have contributed competently to public necessities." Thus St. Alphonsus (l. c.) with Lugo and Molina, with whom Billuart, Gousset, and others commonly agree. Nor therefore is it expedient that a confessor inquire from penitents silent about a tax whether they are guilty of some defrauding, lest perhaps, if they are in good faith, he uselessly cast bad faith into them.

N. B. Concerning the mode of restoring on account of damages inflicted on the republic, see n. 1015, q. 3.

Things to be noted beforehand. 1. Distinguish between hired soldiers, volunteers, who obligate themselves to serving for pay; conscripted soldiers, who are called to military service by universal or particular conscription; finally soldiers who hire themselves out in place of others.

2. Young men destined for military service can be considered either as to be conscripted, or as staying in camps, or as actually occupied in war.

971. PRINCIPLES. I. Soldiers in war are held concerning all damages which they have inflicted through private action. But in a war which they know to be unjust, each is held, in proportion to his own influence, concerning damages inflicted by the army itself. Thus of itself; but ordinarily they are excused, whether because of ignorance, or because of fear of a graver evil if they refused to obey, or finally because of physical or moral inability of restoring (cf. n. 1017).

II. Princes and commanders are held primarily, and in solidum, concerning the whole damage inflicted by the army. The reason is that they themselves were the true mandators, or at least because they did not impede the damaging action, to which they were held by office (cf. nn. 978, 988). See St. Alphonsus, III, 407, 580; Gousset, I, n. 1003.

972. III. Only hired soldiers are held from strict justice to military service; but it is not certainly established that young men called to military service are obligated in conscience to undertake the duty. The first is clear, because there is a contract. - As regards the second, authors disagree concerning the justice and the nature of the law which is named from conscription.

Some say that it is unjust, at least under this head, that it is opposed to distributive justice, since only families which have sons suitable for military service are compelled to undergo the hard yoke. - Others indeed deny that it is unjust, at least among nations for which soldiers hired by stipend cannot suffice, but affirm that it must be numbered among penal laws, because delinquents are most gravely punished. - Finally, others, and their opinion seems to be the more common, teach that the law of conscription indeed obliges in conscience, but only from legal justice. Cf. Pruner, de Jure, P. II, § 72, II; Schindler, II, p. 799.

From these things you will gather: 1. Young men who cleverly avoid military service, for example by lies, exaggerated words, previous mutilation, etc., probably are not held to restore: a) neither to the government, in the case in which others do not supply their places, because it is certainly more probable that the law does not oblige from strict justice; b) nor to others who somewhere supply their places, because it is not established that the aforesaid arts are at once unjust and of themselves efficacious for inflicting damage on them; otherwise he would be held to restore who, by not living rightly, has so weakened his powers that he cannot serve as a soldier. The truly efficacious cause of that damage is the will of the legislator who, when one fails, calls another to arms (cf. n. 949, Condition 2).

2. Young men who by bribes corrupt physicians or magistrates so that they may be declared unfit by them: a) certainly are held to no restitution if all young men fit for military service are assumed, since damage is inflicted on no one; b) but more probably they must restore in the case in which, when one is exempted, another must succeed him; for they are cooperators of formal injustice, for they efficaciously excite public officials to inflict unjust damage on another. For he who by law is not compelled to serve as a soldier has a strict right to preserve liberty. Nor may you say that money is licitly given to redeem an unjust vexation; for here the injustice of the law is not established, and therefore neither the injustice of the vexation, unless the matter is with clerics, or others, who by right are immune from that law. Thus Gousset, I, n. 1002; cf. Bonal, Tr. de Just. et Jure, n. 337; Haine, t. II, q. 196; Vermeersch, de Just., n. 129; cf. also Nouv. Rev. Theol., vol. 37, p. 381. Yet others opine that to corrupt officials or physicians is not an induction to an action to which they themselves, namely officials or physicians, would be held from commutative justice. See Lehmkuhl, I, n. 1177. At least the obligation from the title of strict justice is not established.

In practice one must act cautiously, both because most do not advert to the damage and are not guilty of formal injustice, and because very few would obey admonitions.

973. IV. Soldiers who desert the army sin, and are held to return. This is required by obedience or legal justice, and somewhere by the religion of an oath by which they obligated themselves to soldiering for the time prescribed by law; or even by commutative justice, if by a free pact they hired themselves out.

Yet they are excused: 1. if the war is certainly unjust; for then they are held to flee away, if they can (cf. n. 750, Hence, 2); 2. if they would encounter grave danger to salvation, for example if the means of confessing were not available in the article of death, etc.; 3. if, returning, they would be punished with death or other most grave penalties.

It is asked. To what is he held who had hired himself out in place of another, and then deserted military service?

Resp. He is held of himself: 1. to restore the price accepted, because he did not stand by the pact; 2. to repair the foreseen damage, if he for whom he had hired himself out is compelled to undergo military service. But if no damage and no danger of this kind is incurred, restitution does not seem to be urged, because the hirer intended nothing by the pact except his own liberation; if therefore the liberation remains, the hired man does not commit injustice, nor properly break the pact.

He who was negligent or imprudent in fulfilling his office can be held to restitution: 1. from unjust acceptance; 2. from damage inflicted on goods either of fortune or of soul.

974. PRINCIPLES. I. From unjust acceptance all stipendiaries who have not fulfilled the obligations of their duty are held to restitution. Concerning this matter the Roman Catechism speaks thus: "Those also are to be placed in the number of thieves who, when they have been hired for some private or public office, furnishing no or little labor, neglect the duty, and enjoy only the wage and price" (on the 7th Precept).

Hence: 1. A Bishop, canon, pastor, any priest provided with a benefice, or set over the care of souls or some office, if they are lacking to the law of residence, or do not satisfy the obligations imposed by the canons, illicitly and unjustly accept the honoraria assigned to themselves. But if they fulfill part of their duty, they can indeed retain for themselves the part of the honorarium which corresponds to the labor performed, but they are held to confer the rest for the good of the Church (cf. n. 2264, Quaeres, 2248, 2268). - 2. Judges, magistrates, professors, teachers, physicians, etc., who because of negligence, or because of long or frequent absence, neglect to discharge their office either toward the republic or community or toward a private person, are likewise held to restore that part of the stipend which corresponds to their negligence or absence.

975. II. From unjust damaging, whoever, whether on account of a stipend or without a stipend, has undertaken some duty and has inflicted damages on someone through gravely culpable negligence is held to restitution. The reason is that those undertaking some duty, even spontaneously, obligate themselves, at least implicitly and by quasi-contract, to performing it with ordinary diligence (III, 555; H. Ap., X, 41). Recall the things said in n. 949.

Hence: 1. If someone knowingly taught false things and foresaw the damages probably going to happen thence to a pupil or to others, he is held not only to retract his false doctrine, but also to repair all damages which he foresaw would follow from it (cf. n. 513, 928). 2. If some pupil devoted himself to studies for an office to be obtained through the customary tests, and because of the professor's gravely culpable negli-

gence did not obtain the office, or was compelled to frequent school for a longer time: the professor, and if he fails, the prefect of the school, culpably participant in the professor's negligence, is held to repair all the damages of the pupil or of his parents according to the estimation of prudent persons. Cf. Crolly, de Rest., n. 1252.