Minor Question II. In What Manner Conscience Is Bound by Present-Day Tax Laws

Marrès, De Iustitia [On Justice], bk. 2, nos. 191–225; Waffelaert, op. cit., vol. 2, nos. 414–425; Crolly, Disputationes Theologicae de Iustitia et Iure [Theological Disputations on Justice and Right], vol. 3, nos. 1001–1023, besides the authors cited at the beginning of this chapter.

125. Why we write concerning this matter. Although it is not our purpose ex professo, after the manner of casuists, to direct the mind to the variety of cases, we shall nevertheless not depart from our purpose if we observe those few things concerning the obligation of conscience which may aid the understanding of the learned and suggest a method of prudently resolving doubts.

Let us treat separately taxes strictly taken and military service.

126. I. CERTAIN LESS CORRECT STATEMENTS ARE REJECTED.

1. First of all, it must be observed that, in this age, the rationale both of decreeing and of apportioning taxes has been changed too greatly for us to be able safely to trust the conclusions which pleased the doctors of a former age, even those of the first rank,¹ unless it is established at the same time that their reasons are also suited to present circumstances.

¹ Suárez, C. de Lugo, St. Alphonsus. Molina, however, wrote many things most wisely which retain their utility for the present.

2. We can by no means agree with the opinion of Rev. D. Marrès,² who judges that the obligation of taxes is to be derived from a tacit compact between the people and the government.

² Op. cit., no. 196.

“The theologians,” he says, “already taught this by a most common opinion.” But how vainly the authority of the ancients is invoked in this matter will easily become manifest to one weighing these things:

a) When the Scholastic doctors make mention of a contract, they either think of taxes proceeding from a “feudal” compact, by which the Prince, under a fixed annual payment, had granted an emphyteusis [heritable long lease] of goods which at first had been applied to his support;³ or they ascribe this generic rationale to taxes, as though they were “a debt of nourishing and sustaining the burdens of the king.”⁴ This cannot be said today of the greatest part of taxes. b) Nevertheless, they establish this principle: taxes are owed in the manner in which a just law obliges them to be paid;⁵ and they concede that it can happen that this law would be merely penal.⁶ But if matters stand thus, what does that alleged rationale of a compact now effect? Must it not already be admitted, with Suárez in the place cited, that the matter is recalled to the common rules concerning the obligation of laws, and that “tax laws have nothing special in this”?⁷

³ Suárez, De Legibus [On Laws], bk. 5, ch. 13, no. 2.

⁴ Ibid., no. 9.

⁵ C. de Lugo, vol. 2, disp. 36, no. 39.

⁶ Suárez, loc. cit., no. 6.

⁷ Ibid.

“That this obligation,” Rev. D. Marrès continues, “is born from a tacit contract is shown with much greater certainty in more recent law than in ancient law.... This is so on account of the parts which, according to the fundamental compact, fall to the people in determining public expenditures.”

We judge this to be wholly fictitious. For: a) Today those special causes have departed on account of which certain taxes in ancient times appeared to assume the rationale of a stipend properly so called. And while taxes formerly were exacted more for a use already defined, public expenditures are now accommodated to the probable yield of the exactions; nor is there the least underlying danger that, if a tax is denied, debts to be paid would fall upon the king or his ministers: rather, if the treasury is deficient, the expenditures themselves will be curtailed. b) The argument is entirely wrongly drawn from the parts which fall to the people in determining public expenditures. For these parts consist in this: that the people by their vote elect deputies without whose consent neither could taxes be imposed nor public money expended for any end. But nothing is now obtained from this. For, besides the fact that there are many citizens who lack the right of suffrage: α) No one, while casting his vote, is conscious of an obligation which he assumes from justice to pay taxes; β) Nor, as we saw in Thesis VI, do the deputies exercise a mandate properly so called; γ) Certain parts have therefore been granted to the people so that they may bear the burdens with a more equitable mind and be able to guard themselves against excessive or unjust exactions, and by no means so that the obligation of paying might be increased; δ) The rationale by which taxes are to be paid must be indicated in such a manner that it applies to every species of taxation, whereas the one which we refute is not adapted to personal performances, for example, military service. Will you say that citizens are bound by a quasi-contract to enroll in military service?

Nor does the distinguished author appear to us to bring forward a stronger rationale by recalling the civil action which belongs to the treasury for exacting defined portions of taxes. For a civil action can very well be brought even if the debt of strict justice does not arise until after the sentence of a judge. Thus many fines, and thus the money which must be paid on account of damage inflicted upon goods of the soul or of the body as such,⁸ are strictly not owed until after the sentence of a judge;⁹ and nevertheless they are sought by a civil action.

⁸ We add this because damage to goods of fortune which often flows from an injury to reputation or body must be compensated without awaiting a sentence.

⁹ Indeed, Most Illustrious D. Waffelaert, no. 423, thinks that a fine which a just sentence of a judge has imposed upon one defrauding taxes is to be paid from obedience alone.

Therefore, in reality, no quasi-contract can be acknowledged which is proper to this matter of taxes; but the sole virtual compact which intervenes between the people and princes or magistrates pertains to this: that the latter are bound from justice to administer the commonwealth well, while they obtain the honors and rights of rule itself; while the people are bound by the reciprocal offices of legal justice.

The rights of rulers, moreover, plainly suffice, since, where there is need, the legislator is able to introduce the obligation of commutative justice itself. Cf. Thesis IV.

3. We indeed hold as probable the opinion which excuses citizens from paying taxes whose justice is positively doubtful to them.

Nevertheless, we cannot assent to those who judge that not a few taxes today are of such a quantity or distribution that their inequity is solidly probable.

They certainly do not establish the matter because, by reasoning, they have perhaps disclosed some defect of the prevailing system or have demonstrated that the expenditures made, for example, upon military affairs are excessive. For if those who preside over public affairs are situated practically in the moral necessity of persisting in making these expenditures, citizens must, on account of the common good, tolerate with an equitable mind burdens even which of themselves are heavier than is fair. (Cf. Thesis V.)

But do we not have sufficiently manifest indications of this moral necessity? Otherwise, how do you explain that taxes everywhere among nations approximate nearly the same quantity and vary little with the parties which prevail in the State? Add that, if there is some excess, the use of those things which are expended is nevertheless public, and riches are not consumed, as sometimes formerly, upon the private delights of some tyrant.

4. Two arguments, sufficiently captious, must be dispatched in a few words; they are accustomed to move laymen not a little, so that they wonder at the theologians who hold the obligation of conscience, or even the necessity of justice, to be doubtful. They are of this kind:

a) He who defrauds the State of that portion of taxes which had been assessed upon him by law fails in the natural office of contributing from his own to the common expenditures. Therefore. He is guilty of a sin against legal justice.

b) While he denies his own contribution, he casts the burden upon others, who are thereby compelled to pay more. Therefore. He appears injurious to the other citizens, so that he offends against commutative justice.

Reply to a). I distinguish the antecedent. He fails in the natural office insofar as that obligation of conscience is urged by a just law, or insofar as, if that portion of taxes were defrauded, the State would not be able to suffice for its necessary expenditures, I concede. Otherwise, I deny.

Of itself, indeed, the office of contributing from one’s own is contained within those limits which a reasonable law has prescribed. But, especially today, a very reasonable law can bind merely to a penalty. For public authority does not lack other means, or exterior force and efficacy, by which it may provide abundantly for the treasury and bring it about that all in fact pay equally; but on the part of the subjects, there are many who esteem the guilt of conscience lightly, so that a bond of conscience would seem to place good citizens in a worse condition than the wicked.

The reply is confirmed. That immunity which someone obtains per accidens from his fraud can be assimilated to a reasonable privilege, the most just cause of which is indeed not some merit of the deceiver, but the utility of tempering the law, diminishing sins, and equalizing the rights of citizens.

But where the obligation from positive law is lacking, we saw above, in Thesis IV, that public necessity is required in order that the offices of legal justice may subsist of themselves. Wherefore, when human law is lacking, some obligation of conscience is established from the need of the treasury alone.

N.B. Moreover, the advantage which you can hope for from fraud generally affects only the smallest part of the taxes, so that, taking account of those which you will not be able to evade, you must be judged for this reason also not to have abandoned the natural office.

To b). I distinguish the antecedent. He casts the burden upon others by neglecting an office of commutative justice or by doing an injury to others, I deny; he casts the burden upon others, but without violating commutative justice, I pass over. I distinguish the consequence likewise. For he alone is guilty of injury who, through an injury, is the cause why others must pay more.

Otherwise, you could condemn as guilty of injury one who deliberately abstains here from consuming things which are burdened by an indirect tax. But injury was absent, since he was bound by no debt of commutative justice.

We merely passed over the other part of the distinction because, in so great an abundance of taxes, the frauds of some in no way increase the contributions of others.

If you wish to confirm the same thing extra formam [outside the formal syllogistic structure] by a rationale which, although more common, is perhaps better adapted to persuading many, you could say that, through a purely penal law, the customary tax to be borne or the danger of a fine is proposed to all under a disjunction; that all are free to enter upon that risk; and that those for whom the matter turns out otherwise are deprived of a far greater sum of money. Why, then, should we complain that some, whom fortune has favored, enjoy some benefit which is compensated by the penalty of others?

127. II. DIVERSITY OF OPINIONS. In reality, more recent authors have gone into various and diverse opinions; in this variety of opinions it is permissible to suspect the influence of climate or region.

Thus, after several other doctors of Germany, Rev. Fr. Lehmkuhl, at least as regards direct taxes, defends the strictest doctrine of all, according to which one who, when legitimately commanded, does not declare that value of his goods which upright men are accustomed to disclose would violate commutative justice itself.¹⁰

¹⁰ Theologia Moralis [Moral Theology], vol. 1, nos. 981, 984.

Rev. D. Marrès, who writes in Holland, binds one from commutative justice to pay taxes only after the portion by which one’s goods are burdened has been legally defined. According to him, however, declaring one’s goods in the manner in which upright men are accustomed to do it is only an obligation which he ascribes to the virtue of obedience; when an oath is exacted—as in Holland from those receiving an inheritance—the debt of religion is added to it.¹¹

¹¹ De Iustitia [On Justice], bk. 2, nos. 196, 197, 199, 209.

In Belgium, Most Illustrious D. Waffelaert sufficiently agrees with the doctrine and arguments of Rev. D. Marrès, except that he concedes the laws to be merely penal “insofar as they impose a declaration.”¹²

¹² Op. cit., vol. 2, no. 421. Cf. nos. 419–421.

To another Belgian author, Génicot, S.J., it appears probable that tax laws are merely penal.¹³

¹³ Theologia Moralis [Moral Theology], vol. 1, no. 574.

This opinion has several patrons in Italy, such as Rev. D. Berardi,¹⁴ Rev. Fr. Bucceroni, S.J.,¹⁵ and Rev. Fr. Palmieri, S.J.¹⁶ It also pleases Crolly in England.¹⁷

¹⁴ Praxis Confessariorum [Practice of Confessors], nos. 1651, 3155.

¹⁵ Institutiones Theologiae Moralis, De Legibus [Institutions of Moral Theology, On Laws], no. 81.

¹⁶ In the notes to the moral work of Ballerini, S.J., De Legibus [On Laws], no. 154.

¹⁷ Disputationes Theologicae de Iustitia et Iure [Theological Disputations on Justice and Right], nos. 1001–1023. Cf. especially from no. 1017 onward.

C. Gousset¹⁸ responded more severely in France. Gury instead refrains from expressing any opinion,¹⁹ as does Konings himself in America. The latter nevertheless inclines toward the more benign opinion.

¹⁸ Theologia Moralis [Moral Theology], vol. 1, no. 999.

¹⁹ Compendium Theologiae Moralis [Compendium of Moral Theology], vol. 1, nos. 735–744. Carrière entirely omits this question.

To say something concerning the authors themselves, none appears to us to be accused of excessive severity or benignity. But the disagreement which we have observed among them is to be attributed chiefly to two causes: the different dispositions of legislators and the varying persuasion of peoples.

For in certain regions—for example, in France—the legislator openly professes indifferentism, makes guilt before God of no account, and strives to found all things upon a civil bond. It is then scarcely apparent how his positive precepts would bind the conscience. Cf. Konings, Compendium Theologiae Moralis S. Alphonsi [Compendium of the Moral Theology of St. Alphonsus], nos. 178 and 818.

In other places, on the contrary, such as Germany and Holland, the public power by no means makes little of the divine sanction of laws.

The persuasion of the people itself is sometimes, as in Belgium, inclined to regard laws of this kind as merely penal, while elsewhere the opinion which denies a direct obligation of conscience offends pious minds. But custom is the best interpreter of laws.

Therefore we judge it necessary that, in his own region, each person consult approved national authors and cautiously receive the things defined in this matter by foreigners.²⁰

²⁰ We wish this opinion of ours to be observed, lest we seem too ready here to excuse sins.

128. III. GENERAL CONCLUSIONS. Certain things, however, must be added concerning those which can be established generally.

a) Everywhere it can probably be held that “a strict right arises for the treasury only after the royal commissioner has defined the proportional share and imposed it upon the citizen as payable.” Thus Rev. Fr. Lehmkuhl himself, vol. 1, no. 984, note 1.

b) Everywhere, too, citizens are to be exhorted to pay taxes according to the custom received in the region.

c) He who defrauds the treasury only of those portions of taxes in which the conscientious themselves are accustomed to do so—as among us the true price for which a field was sold,²¹ or the sum which has fallen to someone by inheritance, is concealed—is not on this account to be accused of any sin. On this account, I say: for it is not lawful to use evil devices, for example, lies.

²¹ Observe that, on account of the received custom, not even the guilt of a lie inheres in the declaration of a lower price.

d) Unless—which we judge happens rarely—the injustice of the law is sufficiently established, he certainly sins against commutative justice who corrupts collectors of taxes or by force and threats prevents them from discharging their office of exacting the tax.

For even if the law is regarded as merely penal, the right of taking what is owed by a just law nevertheless cannot be denied to the treasury. That right is violated through force or the corruption of those who by office are bound to provide in this matter for the utility of the commonwealth.

But what if you have concealed goods, or deceived officials either by lies or, what is worse, by perjuries?

Rev. Fr. Lehmkuhl²² regards these devices not only as illicit, but places them among unjust means. Others, on the contrary, such as Most Illustrious D. Waffelaert,²³ Crolly,²⁴ and Génicot,²⁵ judge, once a penal law is posited, that violence or corruptions alone are unjust.

²² Op. cit., vol. 1, no. 985.

²³ Op. cit., vol. 2, no. 418.

²⁴ Op. cit., nos. 1020, 1021.

²⁵ Op. cit., vol. 1, no. 574.

We agree with the latter opinion. For in the hypothesis in which we reason, which is that of a merely penal law, the commonwealth is content with the sole right of occupying this portion of my patrimony which is to be assigned to it by the tax law. But that right is not violated by an action which directly affects the goods, for these are not yet the property of the one who wishes to occupy them; nor by a simple lie, which of itself is opposed only to truth and whose efficacy does not despoil the community of anything already its own.

The reply, moreover, is confirmed by other examples. Whether you have concealed a wild animal or by a lie eluded a hunter pursuing it; or whether you have hidden your goods lest a poor man, pressed by extreme necessity, appropriate them to himself, and have used perjury to deceive him: there is no one who would accuse you of a strict injury. Yet do not the hunter and the poor man possess a right of occupying the wild animal or your goods similar to the right which the commonwealth has acquired for itself from its penal law?

You will say: Why, then, is a legal heir (heres legalis) condemned for injustice when he deceives a sick man by a lie, so that the latter, relying upon a certain hope of recovery, does not make a testament in favor of another?

The rationale of the difference is that the sick man is prevented by the lie from disposing of his own thing, which is strictly injurious to him; and the person who would have been named legatee has a rigorous right not to be prevented from obtaining the good through an injury inflicted upon the donor for that end.

The liar, therefore, does not preserve his own thing here, but invades another’s. Cf. Crolly, no. 1020.

129. I. THE STATE OF THE QUESTION IS DEFINED. 1. There is no one who contends that a citizen, unless hired by the government, is bound directly from commutative justice to sustain this burden; but some judge laws of this kind to be merely penal, while others urge a debt of legal justice or obedience.

The question concerning commutative justice first arises when someone, through an exemption illicitly obtained, is the cause why another is commanded to be in the camp.

Nor is it doubted that he of himself commits an injury who, after he has hired himself for a price to become a soldier for another, compels the latter, by deserting the camp, to make new expenditures unless he prefers to undergo military service.

These things, as being plain, can be omitted by us; but a few things remain to be said concerning him who, not having been hired, evades that obligation.

130. II. WHAT THINGS ARE SUFFICIENTLY ESTABLISHED IN THIS MATTER. Here again Rev. D. Marrès finds a certain rationale of a contract, on account of which he is led to the strictest opinion of all. In kingdoms where a selection of young men is made by means of a certain drawing of lots, “These young men,” says the distinguished author,²⁶ “are commanded so to divide among themselves, by an aleatory contract, a burden imposed universally upon all, that some alone are burdened by that obligation while the rest are free; the young men drawing the lot, therefore, must from strict justice observe the stipulations of this tacit contract, since it is onerous.”

²⁶ Op. cit., bk. 2, no. 225.

Yet, with the learned man’s leave, it is one thing for the legislator to take soldiers for himself by lot, and another for an aleatory compact to have intervened among the young men themselves. There is no more trace of their private consent to a compact than there is consciousness of it. That the law should supply their consent so as to bind them as though they had bound themselves by a mutual compact is something so strange and unusual that it must not be conceded without the clearest reasons. But that singular opinion is plainly destitute of every kind of argument. Therefore, leaving it aside:

We hold for certain, with the common opinion, that he does not sin against commutative justice, even if he has indirectly been the cause why another is compelled to serve as a soldier:

a) Who by artifice has withdrawn himself from the drawing of lots itself;

b) Who, having been designated by lot, has rendered himself unfit for military service, or has feigned illnesses and deceived the physicians or officials placed over the selection;

c) Who has sought as an accomplice in his fraud a private physician, one not publicly hired.

The rationale is that he is injurious neither by the end intended nor by the method employed to Titus, who is substituted in his place. He is not injurious by the end, since he has merely wished to cast off a yoke which he was not bound to bear from commutative justice. Nor is he injurious by the method employed. For that method, although illicit, does not contain an injury done to Titus, who, generally being wholly unknown, suffers no violation of anything or any good of his own, nor could he prove a right of his own to demand that another, on account of his foreseen detriment, abstain from seeking his own advantage.

But, on the contrary, he without doubt sins against the virtue of commutative justice who by fraud or artifice brings it about that someone who by law is simply exempt—for example, on account of infirmity—is conscripted. And, in our opinion, he is also guilty of injury who corrupts officials, not in order to free himself or a friend, but for this end: that the burden be imposed upon another young man who has not been called by lot. The former solution is established from the fact that he who is simply immune by law is injuriously deprived of his liberty. We prove the latter from this: that everyone has a right that an action which is foreseen to be harmful to him not be done for the end of bringing harm upon him.

131. III. THE CONTROVERTED QUESTION. One thing therefore remains. What if, without an intention adverse to anyone, you have corrupted publicly hired physicians or magistrates so that they pronounce you exempt, even though they certainly know that another will be commanded to undergo the burden in your place?

Most condemn the officials and physicians as guilty of strict injury, and consequently the corrupter, who is the principal author of their fault. The cogency of the proof is doubted by Rev. Fr. Lehmkuhl.²⁷ Most Illustrious D. Waffelaert denies it.²⁸

²⁷ Op. cit., vol. 1, no. 988.

²⁸ Op. cit., vol. 2, no. 443.

The reasons which favor the more common opinion are these: a) A distributor is bound from strict justice to follow that rationale of distribution which is established by law. But. These officials or physicians, while they unduly exempt one person and take another, pervert this rationale. Therefore. — b) He who is not compelled by law to serve as a soldier has a strict right to preserving his liberty. That right is violated when he is commanded to take the place of another who is undeservedly granted an exemption. This is confirmed from the fact that no one would excuse from injury a collector of taxes who, by diminishing the tax of one person, illegitimately increased that of another.

To these arguments, which are not to be despised, it is replied: a) This is in doubt: whether the magistrates have properly undertaken the role of distributing the burden of military service among the young men, so that they are bound from justice toward them to follow the order prescribed by law and to pass over no fit man who is designated by lot for serving as a soldier; or whether they are bound by no other obligation of justice except that of providing for the community so that soldiers suitably selected may be at hand for it. For just as a competition can be announced without an obligation of strict justice to select the worthier person, so too this rationale of conscription can be employed so that those whose lot has been favorable enjoy no strict right of exemption. b) He who is fit of himself is not free absolutely, but under a condition: provided that a sufficient army is now conscripted from others bearing military service. If one of these is lacking, for whatever cause it may be, the next in order is obligated. Therefore, when the physicians declare the next in order fit to serve, they do not sin against justice, but discharge their office; but insofar as they have falsely represented the former as unfit, they indeed illicitly favor him—but do they do so unjustly? The commonwealth which hired them suffers no loss: it will have the soldiers it desired. They are not moved by an intention of harming; they merely intend the benefit of someone who can, without injury, extricate himself from the burden even by lies. Are they bound from strict justice to abstain from cooperation in an act which is not of itself unjust?

So that we may disclose our opinion in a few words: We cannot excuse from the sin of injustice magistrates who have acted in this manner. As regards physicians, it appears to us that the office which was entrusted to them must be considered. If the physicians were among those who decide the case of each individual by their vote, they truly appear to us to distribute the common burden. But if, by rejecting a fit man, they take another who otherwise would have departed immune, they in reality pervert the rationale of distribution as it was prescribed by law, nor can they free themselves from the guilt of injury.

But if they must merely give a testimony (certificat, “certificate”) concerning those who are fit or unfit, which is then evidence for those who decide the matter, we excuse from injury those who falsely ascribe illnesses to young men. For suppose that by law young men were permitted to approach any physician who might testify concerning their health: no one would then accuse of injury him who by a lying written statement cooperated in someone’s fraud, since he would be bound by no peculiar office of justice toward the other young man whom the immunity of the former indirectly harms. But the fact that now only the few designated by the government can be approached was established to safeguard the interests of the commonwealth, lest it lack fit soldiers; toward the young men themselves, however, these physicians are no more obligated than in the former case, unless perhaps they must specially promise that they will maintain equal dealing among all.

Finally, even if the physicians are to be accused of injury, the young men themselves will nevertheless be able to rely upon the probable injustice of a law of this kind for excusing those devices in some manner; for these appear to amount to some method of redeeming themselves from unjust vexation.