The Obligation of Paying Taxes

314. Declarations. 1. Tax in general is everything which is paid to the republic for meeting common expenses.

A tax described in this way comprises several species of taxes, which are all reduced to two genera, direct and indirect taxes. A direct tax is tax strictly accepted, which is defined as a payment imposed to be paid by citizens for common necessities or utilities.

2. Some taxes are direct, others indirect.

a. Those are called direct which are imposed immediately upon persons, whether by reason of goods, both movable and immovable, or by reason of art or business. To this belong personal taxes (Personalsteuer), which are exacted from individual persons or families according to movable wealth; real taxes, which are imposed on account of immovable goods, such as fields and houses (Grund-, Haussteuer); and concessions which are made to subjects for exercising an art or for exercising a business (Gewerbe-, Erwerbsteuer).

b. Those are called indirect which are imposed immediately upon certain things on the occasion of the change of rights by contract or succession (Steuer vom Vermogensverkehr, Erbschaftssteuer), on the occasion of the manufacture, sale, or use of certain things (Branntwein-, Brau-, Tabaksteuer, etc.), on the occasion of the transport of merchandise into another region (Zolle - customs).

alpha. Inheritance tax (Erbschaftssteuer) is referred by others to direct taxes, because it immediately affects the heir by reason of the inheritance.

beta. From taxes must be distinguished those things which are paid to the treasury by force of a private contract entered with it, as the price for transporting persons, merchandise, and letters; for these are owed from commutative justice.

315. On the law of taxes. 1. Political authority can establish tax laws obligating subjects in conscience, provided they are just; for by the very fact that it has the right and office of directing society to its proper end, it also has the right of demanding the means which are necessary or useful for governing society, and upon subjects falls the obligation of contributing those things which are demanded for this end.¹

Therefore the obligation of paying taxes arises from the very fact by which someone is a citizen, that is, a part of civil society. For just as in the present order each one by natural necessity concurs for his own good to constitute society, so by the same necessity he ought to contribute that which is required for preserving the same society. Those do not rightly conceive tax who affirm that it is a recompense furnished by citizens to the community for the goods and advantages which individuals receive from social life. In determining the amount of tax to be imposed upon individuals, account can also be had of the advantage received from society; but the received advantage cannot be called the foundation of the obligation.

2. In order that the imposition of taxes be just, besides legitimate power to impose them three things are required: a. a just cause, which is judged to be present if the tax immediately or mediately falls to the common good, to which must also be referred the support of the ruler suitable to his dignity; b. a just mode, that is, the tax must not be excessive but moderate, namely one which does not exceed the demand of public necessity or utility; c. just proportion with the means of the subjects, so that the rich ought to pay more than the poor. If one of these conditions is lacking, the tax law must be called unjust, and it does not induce an obligation of paying taxes except for avoiding a greater evil.

In doubt concerning the justice of a tax, according to the mind of St. Alphonsus (n. 615), it is licit to presume that it is unjust. Generally indeed in doubt one must presume in favor of the justice of the law and in favor of the obligation of obeying; yet if peculiar circumstances suggest the contrary, in doubt it is licit to hold it unjust. But the peculiar circumstances in our case are these: because the conditions which are required for the justice of taxes have in fact not been observed, unjust laws have several times been established, on account of which the presumption is rather contrary to these laws. Moreover, by tax law subjects are not only heavily burdened, but are also deprived of their own goods; but in doubt concerning the justice of such a law, subjects are not bound to obedience.²

¹ Writers of ethics and natural law treat this matter professedly. Cf. Theod. Meyer, Institutiones iuris naturae (Friburgi: Herder, 1900), II, n. 628 ss.; Vict. Cathrein, Moralphilosophie^4 (Freiburg: Herder, 1899), II, p. 625; A. Vermeersch, Quaestiones de iustitia^2 (Brugis: Beyaert, 1904), n. 97-128.

² Cf. Lugo, De iustitia et iure, disp. 36, n. 86.

316. On the obligation of tax laws. 1. Just tax laws, if they are preceptive, oblige from legal justice; for tax laws have nothing special, but must be judged according to the norm of other laws;¹ but other civil laws of themselves oblige from legal justice. And indeed, from legal justice subjects are bound to supply those things which are required for the common good, if by law they are demanded from them. Although now taxes are imposed through deputies elected by the people, nevertheless tax laws do not obtain the force of obligating from the consent of the people, but from the will of the deputies and of the ruler himself; and therefore they have the character of true law, equally as others do.

a. Most among the older authors, and those of the best reputation, were of this opinion: that tax laws, at least some, oblige from commutative justice. They derived this obligation from a quasi-contract tacitly entered between ruler and subjects, by which the former indeed obligates himself to good and right governance, but the subjects obligate themselves to furnishing a stipend by which the ruler can sustain public burdens.² But, if we prescind from the feudal right of former times, no tacit contract of this sort intervenes; rather the ruler, without a contract, by natural ordination is bound from legal justice suitably to govern the republic, and subjects from the same legal justice are bound to supply the means necessary for good governance.

b. The obligation of tax law can be understood in such a way that subjects are not bound to pay taxes except insofar as they are demanded from them, determined as to quantity; for it belongs to the superior of the community to divide the common burdens among subjects, who therefore are not bound to furnish a determinate burden before distribution.

2. Laws which regard indirect taxes are merely penal laws.

a. Indeed, among men even timorous ones, the persuasion is common that they are held to pay these taxes lest they incur the punishment enjoined upon those not paying. Moreover, punishments inflicted on those defrauding these taxes are extraordinarily grave; but very grave and exorbitant punishments inflicted on transgressors of a law are ordinarily a sign of a penal law. Finally, public power not only possesses sufficient means by which it may exact the payment of taxes, but in fact also employs these physical means, and these alone; but from this manner of acting it is gathered that it does not urge an obligation of conscience.

b. Therefore they do not sin nor are they bound to restitution who import and sell prohibited merchandise. Yet those who deliberately and as if from their own business are occupied in defrauding customs, smugglers (Schmuggler), cannot be excused from grave sin, both because they expose themselves to grave danger not only of incurring a very grave punishment, but also of undergoing damage to life, and because they are of a disposition so prepared that they would defend themselves even by inflicted force against public guards and collectors of customs.

3. Tax laws which regard direct taxes, provided they are just, in our regions of Austria and Germany seem to be preceptive from legal justice: for of themselves they oblige from legal justice; but the reasons which are adduced for denying preceptive force as to indirect taxes do not seem to hold for these taxes. There is added the manner of speaking of sacred Scripture, from which taxes in general oblige in conscience: "Render to Caesar the things that are Caesar's."³ "Be subject of necessity not only because of wrath, but also because of conscience: for therefore also you pay taxes; render therefore to all what is due: tax to whom tax, custom to whom custom."⁴

There is no lack of authors who, from nearly the same reasons which can be adduced concerning indirect taxes, think that direct taxes also are imposed by way of penal law. It must be conceded to these that among the faithful, even timorous ones, there is a common persuasion that among so many and such great taxes which are demanded, some are unjust or at least excessive, and therefore that they do not act against conscience if they do not pay all taxes, but sufficiently contribute to the common good insofar as they are bound, because they pay part of the taxes. Hence it is that they judge themselves not bound accurately to declare the goods on account of which taxes are demanded. Moreover, these authors take account of the conditions of their own region, where perhaps the legislator attaches little weight to an obligation of conscience and subjects hold these laws as penal.⁵

¹ Cf. Suarez, De legibus, l. 5, c. 13, n. 6.

² Cf. Lugo, l. c., disp. 36, n. 38; Lessius, De iustitia, l. 2, c. 33, n. 57; Sporer-Bierbaum, II, tract. 5, n. 926; and several others. Of more recent authors, from a similar reason, Marres, De iustitia^2 (Ruraemundae: Romen, 1889), l. 2, n. 196; Scavini, Theologia moralis^12 (Medolani: Oliva, 1890), II, n. 604; E. Muller, Theologia moralis^3 (Vindobonae: Mayr, 1894), II, p. 466; Amberg, Die Steuer in der Rechtsphilosophie der Scholastiker (Berlin and Leipzig: Rothschild, 1909).

³ Matt. 22:21.

⁴ Rom. 13:5-7.

⁵ Genicot (I, n. 474) affirms that tax laws at least in Belgium are more probably merely penal laws; Berardi (Prax. conf., II, n. 413) and Bucceroni (De leg., n. 81) teach the same universally. Ballerini-Palmieri (I, n. 327) affirms that only laws which regard indirect taxes are penal.

317. On declaring goods for which taxes are imposed. a. If there exists no obligation of conscience of paying the taxes themselves, neither does there exist an obligation of declaring the goods for which they are imposed. Wherefore stocks or merchandise on account of which indirect or unjust direct taxes are demanded do not have to be declared. Therefore merchandise which is imported can licitly be hidden, but one must abstain from lies and frauds.

b. Where there exists a strict obligation of paying direct taxes, the goods and their just value are to be declared from legal justice; for by a law issued by the ruler, it is commanded that citizens themselves declare their things subject to tax, and they are bound of themselves to obey this law from legal justice.

c. Nevertheless, one who tries to conceal a fourth or third part of goods must not be held guilty of injustice for a twofold cause: alpha. because some taxes can be held unjust, so that each person, with that part deducted, can still be judged to have satisfied his obligation of contributing to the common good for his part; beta. because this manner of acting is commonly observed also by others, from which it happens that others are not therefore forced to pay more, nor does the government lack necessary subsidies, since for this very reason it is accustomed to increase taxes.

Notaries who in drawing up instruments of sale or things of this sort declare a lesser value of things which are liable to tax do not act against commutative justice, since from the office committed to them they must not care for the utility of the government, but draw up authentic documents according to the norm of law. Indeed, both notaries and the private persons for whom instruments of this sort are drawn up can be excused from lying, where the usage has commonly prevailed of declaring a lesser value of things; for in this case the instruments affirm only that this is the value which, according to received custom, is subject to tax.

d. The oath by which it must sometimes be confirmed that all things have been rightly declared effects that a sin against religion is committed if anything has been hidden or if the price of things which are liable to taxes has been depressed below the lowest. Yet where it is established that a tax is unjust either wholly or in part, it is licit to use a mental restriction, so that, the oath having been emitted, religion is not injured, even if that which is unjustly demanded has been hidden.

Declaration has the character of a necessary means, without which the tax law cannot be committed to execution. Therefore by the same right and the same obligation by which the taxes themselves are demanded, the declaration of things which are liable to taxes is also imposed. It is clear that by the same right and the same obligation there is also demanded an oath concerning the declaration rightly made. One who justly and licitly hides part of the things liable to tax can also licitly emit an oath concerning the declaration rightly made, namely the one which is justly demanded.

318. Obligations of collectors. a. They are bound to exact the taxes and customs for whose exaction they have been constituted with suitable diligence, and indeed each one of them unless it is established that they are unjust, yet in such a way that they treat more kindly the poor and those who are diligent in paying taxes, and this from the reasonably presumed will of the ruler. If they do not diligently exact taxes and customs, or if without just cause they act more indulgently so that either the whole or a great part can be defrauded, they sin against commutative justice, because from contract and from the stipend received they have been constituted to exact taxes.

b. Collectors of taxes or customs who allow themselves to be corrupted by money or to be induced by other unjust means, so that they exact either no taxes and customs or lesser ones, or omit to inquire into things liable to tax, sin against commutative justice. Against the same justice also act those who corrupt collectors, because they induce them to a sin of injustice and by unjust means impede the treasury from obtaining the just tax.

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.

200. By the name tax is understood generally that which is paid for making the common expenses of the commonwealth. A tax is called direct if it is imposed on persons by reason of their goods; it is called indirect if it is imposed on things by reason of some act which regards them, for example, transfer of ownership, sale, succession, transport of merchandise from one place to another, etc. For making the common expenses of the commonwealth. Therefore those things which are paid also to public administrations for transporting letters from place to place, for journeys of persons on railroads, etc., do not have the character of taxes; and they are to be paid by force of the contract entered with the public administration, and consequently from commutative justice.

201. The public authority of the commonwealth altogether has the right of imposing taxes. For it has the obligation of caring for and promoting the common good. Consequently it has the right to exact from subjects those things which are necessary for the aforesaid end, and subjects have the obligation of giving them.

202. Yet it is necessary that taxes be just. But they will be just if they are imposed by public and legitimate authority; if they are imposed from a just cause of necessity or utility of the common good; if they do not exceed the measure of this necessity and utility; if they are distributed with due proportion according to the faculties of citizens.

203. The laws of taxes oblige, as other civil laws do, which oblige per se from legal justice by reason of the common good. Yet it cannot be denied that in tax laws legal justice is intimately connected with commutative justice. Certainly from legal justice prince and subjects are bound, each for his own part, to contribute necessary safeguards to society. But commutative justice commands foreigners to compensate the damages which they bring upon another's society by carrying away and selling merchandise; it commands both subjects and foreigners to compensate the necessary expenses in the construction and custody of roads, bridges, aqueducts, etc., which they use. And it cannot be denied that a certain tacit contract or quasi-contract is present between prince and subjects, when, for example, subjects demand several and certain greater conveniences, and the prince then sustains the necessary burdens for procuring them; surely subjects in such a case owe him, from strict justice, to supply the necessary expenses?

204. That laws of this kind per se oblige in conscience is expressly clear from the Apostle Paul, Rom. 13:5-7: "Therefore be subject of necessity, not only on account of wrath, but also on account of conscience. For therefore you pay taxes: for they are ministers of God, serving unto this very thing. Render therefore to all their dues: to whom tax, tax; to whom tribute, tribute." But that per se also laws of this kind look not only to legal justice, but also to commutative justice, is also clearly apparent from the Roman Catechism, on the seventh Precept of the Decalogue, n. 10: "In this crime of rapacity are included those who do not pay, or divert and transfer to themselves, the customs, taxes, tithes, and other things of this kind which are owed to the Prelates of the Church and Magistrates."

205. Nevertheless, since collectors of these taxes are publicly constituted, this seems to be the mind of legislators, that payment of taxes not be judged owed unless it is exacted. Likewise, since a grave penalty is imposed on those not paying, at the established time, taxes owed by law, without their first having to be sought by the collectors, many and grave doctors have tax laws generally as merely penal laws. Yet from this it does not follow that someone ought not to pay just taxes when the time established by law has arrived, or when they are legitimately sought by collectors; but it follows only that unless the law to be observed is urged, or unless they are legitimately sought, he is not indeed bound in conscience to pay them, but is bound to undergo the penalty if he is detected not to have paid the tax and the penalty is imposed. Therefore someone sins only when, the tax owed by law not having been paid, or the duty as regards taxes sought by collectors not having been paid, he would afterwards be unwilling to pay the fine and undergo the penalty. And this opinion is confirmed also by common practice and persuasion, namely that these laws do not oblige in conscience to paying taxes spontaneously. Wherefore, with at least a doubt standing concerning the obligation, no one seems to be disquieted also under this head if he has not paid taxes not sought by collectors, or other taxes not first to be sought. Indeed, even if someone merely eludes the vigilance of collectors, by hiding things or not manifesting them, namely so that they do not exact or urge, as even the timorous are accustomed to do, or by declaring a smaller value of things in order to diminish the tax, provided, however, lies and frauds are absent, which are always illicit, for deceiving public officials and collectors and for not paying, and provided at least the just price, the lowest true price of the things, is declared. - L. l. 3, n. 614-617; H. A., tr. 10, n. 81; St. Thomas, Quodl. 6, a. 10; Lugo, de Iust. et Iur., d. 36, s. 4; Lessius, de Iust. et Iur., l. 2, c. 33; Ithur., Cas. 2; Struggl. 32; Elbel 303-306; Kenrick, tr. 6, c. 3, n. 20-22, 25.

206. You will resolve: The following are to be condemned: 1. Those who violently resist ministers exacting customs. These sin against obedience: He who resists the power resists the ordinance of God. Rom. 13:2. They also sin against legal justice; for the law which regards taxes, even if it is held as merely penal, nevertheless grants to rulers a certain right of exacting a fine if subjects are detected in fraud. - 2. Those who through right and wrong exercise defrauding as a kind of trade, and wander day and night armed even with the mind of resisting. Men of this kind become rebellious citizens and most pernicious to society. - 3. Those who, although they never resist and do not have the mind of resisting, nevertheless with all zeal and work devote themselves to the art of defrauding taxes, and have it as a profession of life. These not rarely are exposed to dangers both of temporal goods and of life and of soul. Besides, it is one thing sometimes not to manifest one's things or to hide them so that a tax may not be exacted; it is another thing to exercise the art of defrauding taxes, which certainly is prohibited, since this is altogether damaging to society, both on account of the very defrauding of taxes and on account of several other crimes which are naturally associated with it. - All these incur confiscation, Dig. l. 39, t. 4.

207. Do officials sin against justice whenever they do not exact a just tax? - R. Affirmatively, per se generally, and indeed gravely in grave matter. The reason is clear, since they obligated themselves to watch rightly, and diligently to exact taxes otherwise just. Therefore, if they fail in their office, they are bound to restitution toward the Prince or the commonwealth. Generally, because according to many, those placed over exacting customs are not always to be condemned when now and then they act more benignly in a light matter, especially with the poor, or also with those who otherwise diligently pay; because in such a case the Princes themselves are reasonably presumed to remit it. - "Besides, if toll-collectors detect defrauders and only dissemble, probably they are not bound to repay the fine. The reason for this is that toll-collectors by force of their office are bound only to exact the custom for the good of the Prince, but not to enrich him by fines. Besides, a fine is not owed from elsewhere before the sentence of a judge, nor before this does the fisc have a right to the fine. Whence also guards paid to observe lest tolls be declined through hidden passes, if by their own fault they permit passage, are bound from justice to repay the loss of the toll, but not of the fine." Struggl. 30. Others, however, affirm that they ought also to repay the fine, because by omitting the denunciation to which they are bound by reason of office, they are the cause why the fisc does not exact that to which it has a right. - But those are to be condemned who corrupt those placed over exacting customs by unjust means, so that they may not perform their office by exacting an otherwise just tax; for they sin at least by cooperating in the sin of these, and are bound to restitution. - L. l. 3, n. 583, 614-617; l. 4, n. 237; Struggl. 32; Gousset 1000.

736. • By the name of tax is understood the payment which subjects pay from their own goods to the Government or Prince for the common expenses of the Republic.

Some taxes are direct, which affect actual and determined goods of private persons; others indirect, which immediately regard certain wares, and only mediately the persons who transport, sell, buy them, etc., as in French are les droits réunis, les douanes, etc.

737. Principles. - I. The imposition of a tax is an act of supreme dominion over the goods of subjects, and therefore for imposing them there is required supreme and legitimate authority. For it alone possesses the right of high dominion ¹, because it alone presides over the whole community.

¹ The right of high dominion, as it is commonly understood, pertains nothing to this point. The power of imposing taxes is attributed only to the supreme ruler of the republic for this reason, that to him alone pertains the care of directing the community to its end through suitable means. Nevertheless the faculty of exacting some tax is accustomed to be given also to the magistrates of municipalities, so that provision may be made for the special necessities of individual places.

II. - The Prince has the power of imposing taxes; for his power extends to all that which the common good requires; but the common good requires that subjects concur in bearing the burdens of the Republic. - St. Lig., n. 615, etc.

III. - It is necessary: 1. that taxes be exacted for the necessity or utility of the community; 2. that equality among subjects be preserved, account being taken of the faculties which they possess. - St. Lig., n. 615. - Lugo. - Billuart.

IV. - Laws which are concerned with taxes, considered generally, are not merely penal, but oblige in conscience. This is deduced: 1. from the words of Christ, Matt. 22:21: Render to Caesar the things that are Caesar's. - Rom. 13:5: Be subject, not only because of wrath, but also because of conscience; for therefore you also pay taxes... - Render therefore to all their dues: tax to whom tax; custom to whom custom. - 2. It is plain also from reason; for the Prince is held to bearing the burdens of the Republic; therefore by parity subjects are held from justice ² to furnish the means necessary for promoting the common good. - St. Lig., n. 615-616.

² Understand legal justice, by which both the prince and subjects, each for his own part, are held to contribute the necessary supports for bearing the burdens of society.

738. Questions. - Q. 1. Whether the obligation both of paying customs or indirect taxes, and of restoring pro rata of the fraud committed, must always be urged under penalty of sin and of absolution to be denied?

Resp. The solution of this question is not without difficulty; concerning the following things they agree sufficiently commonly.

I. The faithful are to be diligently exhorted to pay taxes diligently and to abstain from every defrauding of them. Nor, however, is it expedient that the Confessor ask penitents who are silent in confession about taxes whether they are guilty of some defrauding; lest perhaps he uselessly introduce bad faith into those who are in good faith.

II. But the following are to be condemned:

1. Those who corrupt, by unjust means ³, those placed over exacting customs, so that they do not perform their office; for they sin at least by cooperating in the sin of these.

³ Namely by gifts, promises, fear, etc.

2. Those who do not pay taxes already imposed from a long time, and which were paid by all, nor was any complaint ever heard concerning their injustice ⁴.

⁴ This resolution perhaps supposes that which is in question. Then how do I know that some tax, unless it is from those which cannot flee the eyes of those exacting, was always paid by all?

3. Those who violently resist ministers exacting customs; for these sin: 1. against obedience: He who resists authority resists the ordinance of God. Rom. 13:2; - 2. against legal justice; for the law which regards taxes, even if at times it were held as merely penal, nevertheless gives to the governors a certain right to exact a fine ⁵, if subjects are caught in fraud.

⁵ Nevertheless a right to a fine does not found a debt of commutative justice; wherefore evasion of a fine is not measured with the obligation of restoring.

4. Those who by right and wrong exercise fraud as a kind of trade, and wander day and night, even armed, with the mind of resisting; for men of this kind become rebellious citizens and most pernicious to society.

5. Nor must indulgence be given to those who, although they never resist, nor have the mind of resisting, nevertheless bend every study and work toward the art of defrauding, and have it as it were as the profession of life; for these are at least not rarely exposed to dangers of soul ⁶.

⁶ Rather than dangers of soul, these men assuredly undergo an enormous danger of fortunes. For both the loss of wares and the superadded imposition of a fine, as often as they are caught in fraud, can bring them, and with them also their family, to extreme poverty.

739. • But how many and how great difficulties occur in the remaining cases escapes no one. Whether at times it is permitted to act more mildly with penitents, a twofold sentence is given, namely affirming and denying. St. Ligorius himself does not dare to settle the matter; having set forth the reasons of certain theologians inclining toward the more benign part (n. 616), he says: Whether, however, on account of these reasons, which in other respects do not seem to be contemptible, it, that is, the affirmative sentence, is sufficiently probable, I remit to wiser men than myself. And in Hom. apost., n. 18, he concludes: Nevertheless, this notwithstanding, I do not omit persuading the first, that is, the negative, sentence. - But the chief reason of those Doctors rests upon the universal custom of accepting and interpreting the law in such a way. Wherefore for us also it will be enough, if, after the sentences of some theologians outstanding in piety and doctrine have been set forth, we leave the choice to the pious reader. Thus therefore they:

740. • Bonacina, disp. 2, de Restitut., quaest. 9, punct. 4, prop. 2, as regards indirect taxes, says: Let it suffice for us to say that what we assert can probably be defended, lest we impose a burden too grave upon penitents after the fact, although before the fact this more benign sentence is not to be counseled, since the edicts of the Prince are not easily to be reprehended.

Vogler, n. 352. - Although the faithful are especially to be exhorted to pay taxes diligently, nevertheless if they now and then defraud somewhat, they do not seem to be obliged to restitution, because the most common practice has this, Princes connive, and in so great a multitude of taxes all the wisest persons doubt whether all are just ⁷.

⁷ Vogler, as is plain, heaps together reasons from each of the opposed sentences: from the first indeed, when on account of most common practice and the connivance of princes he exempts those defrauding from the obligation of paying; but from the second, when he supposes the obligation, but excuses those not paying by reason of some injustice in the taxes themselves. Nor otherwise De Lugo also, who is soon alleged by the Author, limping between each sentence, says according to one that counsel should rather be used, and according to the other excuses from restitution on account of some possible excess of taxes.

Lugo, D. 36, n. 43. - To me, he says, the counsel of P. Molina has always greatly pleased... before the fact, it must be counseled that taxes not be defrauded; after the fact, if the penitent certainly or probably persuades himself that in so great a multitude of taxes there is something unjust..., he is not to be compelled by the Confessor to restitution; nevertheless this doctrine must be used prudently, both lest they render the Sacrament of Penance too grave, and lest they close the way of salvation to many who, if they are obliged by the Confessor, will not restore and will incur eternal damnation.

741. • Scavini (Theologia moralis, ed. Novariae, 1845), de Restitut., c. 1, art. 1, after setting forth the negative sentence, which he acknowledges to be most common and more probable, says thus: The second sentence, which affirms, does not lack its own authority and probability... Whatever may be the case concerning the probability both of the first sentence and also of the second, which we remit to wiser men to define, for practice we warn one thing with the most learned Card. de Lugo: Generally speaking, the people are to be admonished and stirred up to paying taxes, but after the fact they are not to be compelled to restitution of a defrauded tax, if they probably persuade themselves that in so great a multitude of customs they paid something unjustly, or contributed competently to public necessities ⁸.

⁸ But Lugo (cited Disp. 36, n. 42) had warned that neither the obligation of contributing to public necessities, nor the greater burden of others because of the defect of others, compels one to deny the opposite sentence, which does not condemn him who perhaps could have exempted himself from paying.

742. • Rousselot (in notes to Saettler, Theolog. mor., de Leg., part 2, c. 2, art. 3), as regards taxes imposed upon wares, commerce in which is permitted to all under the condition of paying the tax, has these things: There is no obligation of paying certain taxes before they are asked, for example, taxes at the gate of the city, at the bridge, etc. For custom bears it thus, and laws do not oblige beyond custom. Moreover, with the author Saettler and many other outsiders, it can more probably be asserted that those taxes, for whose exacting guards and exactors have been constituted, are neither to be paid in conscience, nor are those defrauding them held to restitution.

These things having been duly weighed, one must not immediately nor easily pronounce the defrauding of indirect taxes to be sinful and to oblige to restitution. Nevertheless let these things not be preached upon the rooftops; but with St. Ligorius and Saettler, let Pastors and Confessors urge observance of the laws also in this matter, let them deter from transgressions as far as they can; but let them not immediately condemn transgressors of grave sin ⁹, nor drive them to restoring, especially if greater evils, for example, desertion of the Sacraments, are to be feared. Moreover good faith often intervenes, to which they are deservedly left.

⁹ Behold for yourself a man limping among uncertainties. First he seems to deny the obligation of spontaneously paying indirect taxes; then he adds that this is not immediately nor easily to be pronounced; afterward he constricts the matter to the question of grave sin; finally, as if he does not concede the use of the first doctrine except when graver evils are feared. Let others judge whether this method contributes more to loosening consciences from snares, or rather to entangling them.

Card. Gousset (Theolog. moral., t. 1, n. 999) urges generally the obligation of paying all taxes, of whatever kind they are, notwithstanding contrary custom, which he calls a common error ¹⁰. Nevertheless he diligently commends prudence to the Confessor, lest perhaps, with hope of fruit remote and the greatest danger of salvation acceding, he induce those defrauding from good faith into bad faith.

¹⁰ That a doctrine which so many supreme men, whom we deservedly are accustomed and ought to revere, either professed, or permitted as probable, or at least did not dare to disapprove, is intrepidly represented as a common error, is indeed difficult. Likewise, that nothing is to be deferred to contrary custom, where there is a question about the obligation and interpretation of some law, is also very difficult.

743. • Q. 2. To whom must restitution be made, if at some time it is to be made by reason of a defrauded tax ¹¹?

¹¹ Since the nearly unanimous sentence of the Doctors is that the faithful either cannot licitly be driven to restitution of a defrauded tax, inasmuch as fault is lacking, or at least that it is in no way expedient for this obligation to be urged, this question can seem useless. But it is useful at least if at some time in another way, for example by thefts, someone has brought damage upon the public matter.

Resp. A twofold sentence is given: according to the older Doctors, restitution must be made to the Prince, whose right has been violated. But according to many more recent men conspicuous for piety and doctrine, with Bouvier as witness, restitution is not to be made to the Prince, nor to the subjects; but the defrauded money ought to be expended for pious uses or upon the poor. 1. Not to the Prince, because there is not at hand a mode by which this can be done. Besides, Princes suffer no damage; for foreseeing frauds, they impose greater taxes. 2. Not to the injured subjects, because restitution cannot be made to individuals: therefore the sum ought to be expended upon the poor, or upon public utilities. Gousset, n. 999, agrees. - Recall what was said above, n. 712.

744. • Q. 3. Whether those importing prohibited wares sin and are held to restitution?

Resp. 1. As regards restitution, absolutely negatively, because they injure no strict right of anyone. For they do not violate the right of the Prince, because he has not reserved those wares to himself, nor imposed any tax upon them; nor the right of any private person, because there is no one who has the privilege of selling these wares ¹². - Bouvier, Tract. de Restitutione, at the end, and others commonly.

¹² Even if the prince had reserved this right to himself, or imposed a tax, or granted to someone the privilege of selling those wares, nevertheless the obligation of restoring is not more certain than the disputed matters above persuade.

Resp. 2. As regards sin, it is controverted: some affirm that those defrauding sin, and indeed of itself gravely, because they violate laws which truly oblige in conscience of themselves, and not only by accident. - Bouvier, ibid. But others deny, because those laws from custom are held as merely penal.

At least they are not to be condemned of sin who import prohibited wares in a small quantity and for their own use, especially if they are poor. But the rest can easily sin against charity toward themselves, by exposing themselves to very grave penalties.

745. • Q. 4. Whether those placed over taxes sin against justice as often as they do not exact the tax?

Resp. Affirmatively, of itself generally, and indeed gravely in grave matter. The reason is plain, since they have obligated themselves to watch rightly and to exact taxes diligently. Therefore, if they fail in their office, they are held to restitution toward the Prince or the Republic. - Thus commonly.

I said generally, because according to several, those placed over exacting customs are not always to be condemned when now and then they act more benignly in a light matter, especially with the poor, or even with those who otherwise pay diligently. - See Casus, n. 751 and following.

591. (A) Taxes, or duties, are whatever citizens are bound to pay for relieving the common burdens of the commonwealth. - They are various, but more commonly they are distinguished into direct and indirect: the former are those which immediately and primarily affect persons because of the goods which they possess, immovable or movable, or the arts or businesses which they exercise. But indirect taxes are judged to be those which immediately and primarily affect the things themselves, and only mediately persons, such as those which are collected on the occasion of succession, transportation, manufacture, etc. This is the common distinction; yet sometimes civil laws, in various regions, do not understand this division of taxes in the same way.

(B) Now, in order that taxes be just, especially a threefold condition is required: (a) that they be imposed by legitimate and competent authority, national, provincial, or municipal; (b) for a just cause, namely the utility or necessity of the commonwealth; and therefore under this head taxes imposed for useless or, a fortiori, harmful expenses are excluded;¹ (c) with due proportion preserved to the faculties of each one, so that those who are richer and receive more of the benefits of civil administration likewise bear greater burdens.

¹ Wise economists admit that in modern societies there are certain taxes of this kind.

592. A twofold opinion is given concerning this matter: for some say that tax laws are merely penal, and oblige only to paying either the tax or the fine which is imposed upon those defrauding: for today civil legislators, at least implicitly, declare that they do not wish to impose this obligation in conscience; moreover laws are so understood by most citizens, who in fact are conscious of no sin when they evade taxes.² Yet the more probable opinion, to which we adhere, holds that laws of this kind, when otherwise just, truly oblige in conscience.

² Thus, e.g., Ball. P., n. 327; Crolly, III, n. 1010-1023; Berardi, III, n. 413; Genicot, n. 574; Noldin, n. 466.

593. Principle: Tax laws, when they are just, of themselves oblige in conscience, directly indeed from social justice, but indirectly from commutative justice, after the quota part has been legitimately determined. Thus more probably.³

³ Bouquillon, Theol. Moralis fundamentalis, Paris, 1903, n. 227-229; Marres, De justitia, I, 196-197, 199-209; Waffelaert, II, 421.

It is proved. (A) In the Gospels, the matter indeed is not explicitly declared, but is shown as consonant with the doctrine of Christ and His manner of acting. For when the Pharisees and Herodians asked Him whether it was licit to give tribute to Caesar, He answered:¹ "Render therefore to Caesar the things that are Caesar's, and to God the things that are God's." What He was teaching, He had already confirmed by example; for a little earlier, He had ordered Peter to pay the tribute.² - St. Paul clearly inculcates the same doctrine:³ "For because of this you also pay tributes; for they are the ministers of God, serving unto this very thing. Render therefore to all their dues: to whom tribute, tribute; to whom custom, custom."

¹ Matt., XXII, 21.

² Matt., XVII, 23-26.

³ Rom., XIII, 6-7.

594. (B) It is proved by reason. For citizens are bound in conscience to furnish those things which are necessary for protecting and preserving society, since men are born to live in society; but society generally cannot be preserved unless the expenses necessary for preserving good order and defending the fatherland against enemies are paid; - moreover, unless citizens are held in conscience to pay these expenses, the intended end will not easily be obtained; for a way will be opened to innumerable frauds and deceits, with the greatest detriment of the treasury and of morals; the honorable and simple will pay more than is fair, while the dishonest and deceitful will pay less; the richer will pay taxes not according to their resources and faculties, but according to their own judgment, since they can hide the greatest part of their goods; and thus inequality and injustice will prevail, with the greatest detriment of the whole of society.

Therefore this obligation arises from justice not only legal, but also commutative; for, when the State has determined the sum of money which is necessary for common expenses, if certain citizens fraudulently do not satisfy their obligation, by that very fact heavier burdens are imposed upon others, and therefore these must pay not only the part of taxes which is proportioned to their own fortune, but also the part which is not paid by those defrauding.

595. It is explained. (a) It was said of themselves, insofar as, namely, the legislator has the power of obliging subjects in conscience, and in fact generally intends to oblige them thus; hence, if from the circumstances it is clear that such was not the mind of the legislator, and that the law is understood by the greatest part of the people as merely penal, so that even the God-fearing use frauds as often as they can avoid the fine, accidentally the law does not bind in conscience. Likewise custom can bring it about that a law which before had obligatory force from the very intention of the superior afterward becomes merely penal. - This indeed is to be regretted, because, while the upright pay taxes in full, the less honorable only partially satisfy their debts, and little by little injustice prevails; whence it also happens that the God-fearing labor under anxieties.

(b) After the quota part has been legitimately determined; for today a tax law does not oblige subjects unless the quota to be paid has been determined by legitimate authority: for then only, according to the laws, does the general duty of paying taxes pass into a strict obligation, which can be sought by civil action. But concerning the various modes by which that determination is legally made, see the laws of various nations. So that the quota part to be paid may more easily be determined, the laws command that either citizens themselves declare the value of their things, or fiscal officials (repartiteurs) or magistrates investigate the matter. Now citizens from legal obedience are bound to declare things subject to tax, insofar as legitimate custom interprets these laws; hence, if a milder interpretation of the laws is in use by common custom, with the legislators knowing and remaining silent, this indeed can be admitted in conscience. I said from obedience, not from justice; yet, if someone has violated the law in this matter by lies or frauds, indirectly he can be bound to restitution, insofar as he was the cause why the treasury could not receive the tax established by law.

596. (A) According to all, tax-collectors are bound to restitution when they knowingly and willingly favor those defrauding, since from office they must prohibit this. - Likewise those who corrupt collectors, lest they exact taxes which are truly owed, or by force or fear impede them from inquiring about things liable to tax: for then they become cooperators of the collectors in an unjust matter. This is clear from what was said above, nn. 494, 512.

(B) Those who from habit, and as if from art, devote effort to defrauding duties, sin gravely, both because they expose themselves to grave danger, and because they prepare themselves in mind even for bloody defense against the guards of duties. - Moreover, according to the opinion which we have explained, they are guilty of injustice, and are bound to restore, especially if they have become richer from this.

597. (C) In regions in which the tax law is held as obliging in conscience, and upright citizens are accustomed faithfully to pay taxes, according to the opinion explained above those who use frauds so as not to pay them are bound to restitution: for injury is done either to the State or Municipality, or to the other citizens who under this head must bear greater burdens. - But where a custom has prevailed of declaring goods, whether movable or immovable, much below the value of the things, and therefore of paying lesser taxes, the upright cannot be compelled, under the burden of restitution, to declare the full value: otherwise, they would pay more than is fair. This especially holds where taxes are imposed that are too burdensome, and many useless expenses are made.

598. (D) As regards military law, these things seem to be established: (a) Those who corrupt physicians by gifts, so that by them they may be declared unfit for military service while in fact they are fit, are bound to restitution toward those who, in their place, were called to military service, namely where a determinate number is taken; for thus they cooperate in the unjust action of the physicians, who from office must declare as fit those who truly are such. - But otherwise, if they only strive to capture their benevolence, so that in doubt about their fitness they may favor them.

(b) When those called to military service withdraw themselves from military service by mutilation, feigned illnesses, or lies, they indeed sin against the obedience owed to legitimate authority; but the question is whether they are bound to restitution. Now, where all are called to military service, they violate the rights of no citizen, and therefore cannot be compelled to restitution; but where a determinate number is taken, we think, according to the principles explained above, that they are bound to restitution toward those who, in their place, were enrolled in military service, because they truly are the efficacious cause of this damage. Nevertheless some probably teach that they are bound to nothing, because they are indeed the occasion why others are taken, but not the cause: the truly efficacious cause is the law of conscription itself. This argument seems weak to us; for those who withdraw themselves from military service in this way are the efficacious cause why the law is applied to others, who otherwise would have been exempt from military service.

(c) Whatever may be the case, those who by natural law (e.g., because of illness), or by ecclesiastical law, are immune from military service, do not sin while they use licit means to evade the law, nor are they bound to restitution toward those who, in their place, are enrolled in military service; for by acting thus, they use their own right. - Moreover, good faith often excuses.

292. Restriction. There is no true obligation of conscience of paying taxes unless they are just. But for the justice of taxes three things are required: 1. legitimate authority; 2. a just cause; 3. due proportion.

The legitimate authority of imposing taxes in our days is usually some body of deputies, as has already been said. By force of the privilege of immunity clerics of themselves are exempt from the payment of civil taxes,¹⁷⁰ but today either from Concordats or from at least the tacit concession of the Supreme Pontiff, clerics are no longer exempt from taxes to be paid.

The just cause of taxes is the true public good to be procured; and therefore from the very threshold those taxes are unjust which are employed against true religion or good morals. Today not a few taxes are very unjust; notably those which are exacted from Catholics for the support of heretical worship, impious schools, disordered luxury, etc.

Due proportion is required in imposing taxes upon individual subjects. But how this proportion is to be measured in practice, men skilled in national economy do not at all agree.¹⁷¹ Before all else it is not established how great a part of taxes is to be received from direct taxes, and how great a part from indirect taxes. Generally it can be said that taxes are to be distributed according to the powers of individual citizens; but the powers are to be measured according to the revenues which remain to each one after the fitting support of himself and his own family. In practice it is morally impossible that individual citizens should truly be compelled to taxes strictly according to due proportion.

¹⁷⁰ Cf. Council of Trent, sess. 25, c. 20, de reform.

¹⁷¹ See some from the many modes of calculating the quota of taxes apud Vermeersch, Quaestiones de iustitia n. 104.

293. Diverse opinions concerning the quality of the obligation of taxes. Although all theologians concede that just tax laws in some way oblige in conscience, nevertheless they by no means agree concerning the very quality of that obligation. Four opinions can be distinguished:

1. The obligation of all just taxes arises from commutative justice, so that their defrauding induces a strict obligation of restitution. St. Alphonsus¹⁷² calls this opinion most common and more probable, citing for it 23 authors, besides whom St. Antoninus and the Roman Catechism defend this opinion. Behold the words of St. Antoninus:¹⁷³ "Citizens who conceal their movable or immovable goods, or feign that they are worth less or that they have debts, so that less may be imposed upon them, commit theft and are bound to make satisfaction to the community." But the Roman Catechism¹⁷⁴ says: "In this crime of rapacity are included those who do not pay or who intercept and transfer to themselves the customs-duties, taxes, tithes, and other things of this kind which are owed to the rulers and magistrates of the Church." - The internal reason of this opinion is the implicit contract which is said to intervene between the ruler and the people. The ruler tacitly or expressly promised to administer the republic according to his powers and to procure the common good of the citizens; but the citizens at least tacitly promised that they would furnish the taxes necessary for satisfying all just expenses. Therefore if citizens do not pay just taxes, they injure this contract entered into and accordingly also commutative justice.¹⁷⁵ Then the same opinion can be proved by an indirect argument, namely: Just civil taxes oblige subjects in the same way as ecclesiastical taxes or tithes.¹⁷⁶ But just ecclesiastical taxes oblige from commutative justice; which indeed is commonly admitted by theologians. Therefore the same must be said of just civil taxes.

2. The obligation of all taxes arises from legal justice alone. This opinion does not seem to have been known in ancient times, but it pleases many modern authors, for example, Lehmkuhl,¹⁷⁷ Vermeersch,¹⁷⁸ Simar,¹⁷⁹ Wagner,¹⁸⁰ Waffelaert,¹⁸¹ Mausbach,¹⁸² Schindler.¹⁸³ Nevertheless some of these authors teach that an obligation of commutative justice is present if the quota of taxes has already been rightly and justly determined in a particular case. This limitation indeed is of little practical utility in our regions. For if taxes, whether direct or indirect, have once been determined in a particular case, they can scarcely be defrauded except by corrupting government officials. But such corruption, with almost all agreeing, injures commutative justice. Besides, if taxes have once been determined, they are customarily exacted with the greatest severity, so that defrauding is almost impossible. Therefore the question is not concerning the payment of taxes already assessed for an individual man, but concerning the obligation of paying taxes to be assessed according to an existing just law.

3. All laws of civil taxes are penal laws. This opinion was entirely unknown in ancient times. The first who in some measure defended it was Angelus Carletus (d. 1495) in his Summa Angelica.¹⁸⁴ Against him Sylvester Prierias, O. Pr. (1460-1523), fought vehemently.¹⁸⁵ In our times Biederlack,¹⁸⁶ Crolly,¹⁸⁷ Genicot,¹⁸⁸ Berardi,¹⁸⁹ Noldin,¹⁹⁰ etc., favor this opinion. Authors collect many reasons for this opinion: a) the common estimation of the people holds tax laws as merely penal, so that no one even of timorous conscience thinks himself held to restitution if he has defrauded taxes; b) modern legislators care nothing about obligation in conscience, and the enormous penalties which they inflict upon those defrauding taxes show clearly enough that tax laws are merely penal; c) if tax laws bound the consciences of subjects, then timorous men would be of a worse condition than impious men, who, since they care nothing about moral obligation and defraud taxes according to their powers, would cause great prejudice to timorous men, imposing upon them the taxes defrauded by themselves. - Each one easily understands that these reasons are not convincing.

4. Laws of direct taxes oblige directly in conscience; but laws of indirect taxes are merely penal. Thus after Ballerini¹⁹¹ a great part of modern theologians. The principal reason is the common estimation of the people, who in no way thinks that he sins if he defrauds indirect taxes, at least if habitual commerce does not arise from such defrauding.

In so great a number of opinions the truth is not easily discerned. Theoretically the first opinion seems to be preferred, both on account of the weight of authors and especially of Sacred Scripture and on account of internal reasons. For without the payment of just taxes social life today is very often truly impossible. Then, for taxes paid, most precious goods are given to citizens by the government: internal and external peace, streets, railroad, post, etc. All these things indeed are not judged to be granted gratis. Therefore if citizens do not pay taxes which are certainly just and nevertheless accept the benefits of government, they seem to commit a true violation of commutative justice.

¹⁷² Theol. mor. l. 3, n. 616. Aertnys-Damen X 1, 831, embraces St. Alphonsus's opinion, but Marc-Raus II, 967, does not.

¹⁷³ S. theol. P. 2, tit. 1, c. 13, § 3; cf. also P. 3, tit. 8, c. 4, § 5.

¹⁷⁴ Part 3, c. 8, q. 8.

¹⁷⁵ Billuart, De iust. diss. 9, a. 7, § 2, excellently develops this reason.

¹⁷⁶ Cf. St. Thomas, S. theol. II-II, q. 87, a. 1.

¹⁷⁷ Theol. mor. I, 1170.

¹⁷⁸ Quaest. de iust. n. 106. In the work published afterwards, Theol. mor. II, n. 567, this author seems to teach that tax laws are rather penal laws.

¹⁷⁹ Lehrb. der Moraltheol. (1893), 368.

¹⁸⁰ Die sittl. Grundsatze bezugl. der Steuerpflicht 79. Nevertheless this author (p. 87) proposed the thesis: "Whoever neglects to pay a tax commanded in a just manner is indeed, toward the State (or generally toward the public community), not bound with respect to the unpaid tax to restitution in the proper sense; but there rests upon him in this respect simply the duty of subsequent tax payment, insofar as the State legally insists upon this subsequent payment, whether the nonpayment of the tax is 'malicious,' and therefore an actual so-called tax-defrauding, or not." Cf. also ibid. p. 96, the case of Titius. How this thesis coheres with an obligation of paying taxes from legal justice alone is difficult to understand.

¹⁸¹ Tractatus de virt. card., de iust. n. 420 sqq.

¹⁸² Kath. Moraltheol. III, 5 § 3.

¹⁸³ Lehrb. der Moraltheol. III, 829.

¹⁸⁴ s. v. pedagium.

¹⁸⁵ Summa s. v. gabella. Cf. Fr. Hamm, Zur Grundlegung und Geschichte der Steuermoral 217, where this matter is well treated.

¹⁸⁶ De iust. et iure (1891), n. 103; Innsbrucker Quartalschrift 1899, 164.

¹⁸⁷ Disp. theol. de iust. et iure III, n. 1010-1023.

¹⁸⁸ Theol. mor. I, 574.

¹⁸⁹ Prax. confess. (ed. 3) II, n. 413, and III, n. 57.

¹⁹⁰ I could not clearly perceive the mind of this distinguished author; de praeceptis n. 316 teaches: "tax laws which regard direct taxes in our regions of Austria and Germany seem to be preceptive from legal justice"; n. 476 the author seems to hold tax laws rather as penal.

¹⁹¹ Opus theol. I, n. 327. Noldin (De praeceptis n. 316) simply asserts: "Laws which regard indirect taxes are merely penal laws."

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.

816. Definition. - Tax is all that which is imposed by legitimate power commanding citizens to be paid for sustaining the common burdens of the republic.

Division. - Today that division of taxes especially obtains by which they are distinguished into direct and indirect. Those are called direct which immediately affect the person or his goods. Of this kind are real taxes, which are imposed upon fields and houses, and those which in some places are imposed upon the person and commonly are called personal, and those which in some regions are established upon movable wealth, and other things of this kind.

Indirect are those which fall immediately upon some action concerning some things, and mediately upon the persons who perform concerning those things an action which falls under the law imposing the tax, suppose they sell, buy, consume, introduce, etc., according as purchase, sale, consumption, introduction, etc., is taxed by law. To these are referred those things which in some provinces must be paid for right of succession, for recording of contracts, etc.

817. • Conditions required for the justice of a tax. Three are commonly recounted.

1° That it proceed from legitimate power, namely from that which is supreme in the republic; from the supreme Congress among us for the whole Confederation, but within the limits fixed by the Constitution;¹ from the legislative Assemblies of each State for the respective State, and, from faculty conceded to them by the supreme power of each State, from the colleges of Municipalities and Counties for the inhabitants of Municipalities and Counties.

2° That it be established from a just cause, namely of necessity or common utility.

3° That it be divided in due proportion. But this requires a) that, when the cause of the tax regards all equally, those who are richer be more burdened, and those who have lesser means pay less. But if the cause does not regard all equally, those whom it regards more must be more burdened. b) That proportion also be observed to the things upon which the tax is imposed. For if it is imposed upon an immovable thing, it ought not to exceed a moderate quantity, considering its fruits and the labors and expenses which are made concerning that thing. But if it is imposed upon movable things which are sold and bought or made by art, care must be taken lest such be things of this kind, or so great be the tax, that it redound to a greater burden of the poor, or of artisans, or of merchants, than they can conveniently sustain for supporting life and family.

818. • Obligation of the law of taxes in conscience. Laws which concern taxes, looked at generally, according to the opinion which S. Alph.² calls most common and more probable, are not merely penal, but oblige in conscience.

It is deduced 1° from Scripture.³ 2° It is clear also from reason; for the Prince is bound to bear the burdens of the Republic; therefore by parity subjects are bound to furnish the means necessary for promoting the common good. But of the patrons of this opinion, some teach that this obligation belongs to commutative justice, while others that it arises from legal justice, and that therefore those defrauding taxes are not bound to restitution, which exists from commutative justice alone.¹

Nevertheless there are not lacking those who judge tax laws universally merely penal. After the reasons of these have been set forth, S. Alph.² says: "But whether, on account of these reasons, which moreover do not seem contemptible, it" (the affirmative opinion) "is sufficiently probable, I leave to the wiser." And in the Hom. Apost.³ he concludes: "Yet notwithstanding this, I do not omit to advise the first" (denying) "opinion." - But the principal reason of those Doctors rests upon the universal custom of accepting and interpreting the law otherwise; to which today this is added, that the supreme moderators of empires nowhere appeal to conscience, indeed nowhere to the religion of peoples, but while they enlist for themselves innumerable armies of guards, overseers, and collectors for exacting duties and other taxes, they seem altogether to trust more in them than in the conscience of subjects. Cf. what was said n. 178.

819. • Practice to be observed with penitents as to tax laws.

The patrons of each opinion almost agree as to these things:

I. It is not expedient that the confessor ask penitents who are silent in Confession concerning taxes whether they are guilty of any defrauding, lest perhaps he uselessly inject bad faith into those who are in good faith.

II. "But speaking generally concerning all customs-duties, Lugo⁴ thinks that peoples must be warned to pay taxes, but after the fact they are not to be compelled to restitution of tax defrauded, if probably they persuade themselves that in so great a multitude of customs-duties they have paid something unjust, or have contributed competently to public necessities." Thus S. Alph.,⁵ reporting the opinion of Lugo, without reproving it by even a little word.

820. • III. The following are not to be urged to restore taxes:

1° Those from whom they were not asked, and this from custom legitimately received, beyond which laws do not oblige. Hence tolls which are paid for a bridge, for a public road, do not necessarily have to be furnished before they are asked. Therefore if there is no collector who asks the toll, while a merchant passes with all fraud set aside, he does not sin against justice by paying nothing. Thus S. Alph.¹ nearly reports the opinion of Sanchez, without reproving it.

2° Those who place secretly the action which falls under tax, so that the appointed collector does not come into knowledge of it, so that by thus evading the asking of the tax, its payment also is evaded; as when someone purposely hides merchandise which he carries into a region, and for which duty would have to be paid, or carries it in through trackless places and at inconvenient hours, or secretly sells merchandise, for which sale likewise tax would have to be paid. The reason is that if taxes are so received by the republic that they are not owed unless asked, why will someone not be able to hide himself lest they be asked from him? The collectors themselves, or those whose interest it is, ought to keep watch lest someone, for example, sell his goods secretly; for others are not bound to bring it about that their contracts come to the notice of tax-farmers or others. Molina with others cited by Lugo² holds this opinion, and other learned men cited by Sanchez,³ who calls it probable, and S. Alph.⁴ reports it.

3° Those who, when interrogated by collectors about what merchandise they carry or have sold, etc., lie by declaring less than the thing is; because when the tax-collector could proceed with the highest rigor by verifying the thing, if he does not do this, he sufficiently indicates that in the case he does not ask taxes with the highest rigor, and that he holds himself content with the declaration made. And Sanchez⁵ again calls this probable, and Molina holds it according to Lugo.

4° Those who do not pay taxes only doubtfully just, whether the doubt is negative (yet joined with some presumption concerning the injustice of the tax), or positive. The reason is that the Rules, "One must obey the Superior commanding in doubt," and "The law in doubt is presumed just," cannot be applied in the matter of taxes. Not the former, because all Doctors admit that a subject is not bound to obey in doubt when the precept (in the case, of paying a tax) is too difficult, or brings grave damage to him. Not the latter, since presumption fights against tax laws; for as many and very grave Doctors say, there are few taxes in which all the conditions necessary for their justice actually concur.

5° Those who are so poor that, if they paid the taxes, they could not feed themselves and their own, either because they perceive moderate profit from their business, or because they are burdened with numerous offspring, or because they are burdened by debts, or because they are hindered by other necessities. For natural right demands that someone feed himself and his own before paying taxes. Cf. S. Alph.¹

6° Those who do not pay duty on things serving for the proper use of themselves and of the family.² - I would add:

7° Those who against the power exacting taxes have a just title of compensation, and

8° Those who by force of ecclesiastical immunity, still in force (n. 112), are not bound to pay taxes.

821. • IV. The following must be condemned:

1° According to the common opinion of the Doctors, those not paying real taxes imposed upon lands and fields, provided nevertheless that the conditions required for the justice of the tax are certainly present. But a tax is called real which is not imposed only by reason of the person.

2° Those who would compensate themselves after a sentence of the judge, at least a definitive one, from which appeal cannot be made, and which cannot be weakened by any remedy of law.

3° Those who in any way corrupt those appointed to exact taxes, or judges to whose tribunal some tax case is brought; for they sin at least by cooperating in the sin of these.

4° Those who violently resist ministers exacting duties; for these sin 1° against obedience: He who resists power, resists the ordinance of God.³ - 2° against legal justice; for the law which regards taxes, even if it were sometimes held as merely penal, nevertheless gives to rulers a certain right to exact the fine if subjects are caught in fraud.

5° Those who through right and wrong practice defrauding as some kind of trade, and wander day and night even armed with a mind of resisting; for men of this kind become rebellious citizens and most harmful to society.

6° Nor must those be indulged who, although they never resist nor have a mind of resisting, nevertheless devote every zeal and work to the art of defrauding, and have it as a profession of life; for these are not rarely exposed at least to dangers of fortune and also of soul. - Cf. what we said 7. concerning Oath n. 374. 9°.

822. Questions. - Query 1° Do overseers sin against justice as often as they do not exact a tax?

Resp. Affirmatively, of itself generally, and indeed gravely in grave matter. The reason is clear, since they obligated themselves to watch properly and to exact taxes diligently. Wherefore, if they fail in their office, they are bound to restitution toward the Prince or Republic. - Thus commonly.

I said: generally, because according to several, those appointed to exact duties are not always to be condemned when at times they act more benignly in a light matter, especially with the poor, or even with those who otherwise pay diligently, or carry things for their own use.

Query 2° Are the same overseers bound also concerning fines which they ought to have inflicted upon those not paying the tax, or concerning the value of the merchandise itself, if at any time it ought to have fallen into confiscation, especially when tax-collectors could have inflicted such a penalty of themselves without another process and culpably did not do so?

Resp. Not a few probably affirm, because, they say, those guards in the case truly are the cause of damage which he feels who had a right to that profit which was decreed through the penalty; for through their fault he does not perceive it.

Yet the more common opinion denies it, because these guards are bound by force of office only to receive duties and to watch lest these be defrauded, but not to inflict fines upon those thus defrauding. Therefore they are not bound to restore these, even if by their negligence they are not paid, because the guards do not sin against justice in this. La Croix,¹ Lugo,² Gousset.³ This is also valid for the case in which the guards themselves could inflict fines by themselves; for even for this case the reasons brought forward seem to militate, and, by dissimulating or conniving with defrauders, as Lugo argues, l. c., they seem only to take upon themselves that damage which others inflict, and to constitute themselves as authors of that damage. Therefore they will not be bound to a greater restitution than if they themselves alone were truly authors of that damage.⁴ Cf. n. 776. q. 7°.

823. • Query 3° Are the overseers who consent to defrauding bound to restore in the first place, or those defrauders themselves who corrupt the overseers?

Resp. In the stricter opinion concerning the payment of a tax in conscience, the response to the question seems easy, and it must be said that guards are bound to restore only in the second place, and only after those who induced those guards to permit defrauding of the tax. But in the less strict opinion they seem to be bound in the first place.

Query 4° To whom must restitution be made, if at any time it must be made by reason of a tax defrauded?

Resp. To the injured party; therefore either 1° to the Federated States, the particular State, Municipality, County, in the manner in which we said n. 795. q. 6°; or 2°, if to these it cannot safely be made from some cause, to pious causes; or 3° to the tax-farmers, if it is a question of duties which the State, Municipality, or County has leased.

624. Taxes or tolls, in a broad and general sense, are called whatever citizens are bound to pay for relieving the common burdens of the republic; strictly, however, these two are distinguished. Taxes, namely, in the proper sense are monies which citizens must pay by civil law precisely for this end, that satisfaction may be made for the public expenses of the republic; a toll is rather money to be paid on account of the conveyance of merchandise, whether into another city or kingdom (droits de douane et de transit), or to another person (droits de succession et de mutation), or into another form or use (droits d'accise).

In modern law, however, another distinction is usually in use, namely, into direct and indirect taxes. Direct taxes are those which immediately and primarily affect persons on account of the goods which they possess, immovable or movable, or the arts or businesses which they exercise. But indirect taxes are reckoned to be those which immediately and primarily affect things and mediately persons, such as those which are collected on occasion of succession, conveyance, manufacture, etc.

625. The conditions required for the justice of a tax are numbered as three:

1. That it be imposed by legitimate and competent authority, national, provincial, municipal, as commutative justice prescribes;

2. For a just cause, namely, the utility or necessity of the republic, so that immediately or mediately it yields to the common good, proportionately to the necessity occurring, as legal justice demands; otherwise public authority does not have the right to dispose of the goods of subjects; hence under this heading there are per se excluded taxes imposed for useless expenses, or a fortiori for harmful ones;

3. With due proportion to the faculties of each one having been preserved, as distributive justice dictates: so that the burden does not exceed the faculties and is compensated by the advantage which comes to the people from the tax, and consequently so that those who are richer and perceive more of the benefits of civil administration bear greater burdens. For the State does not have the right to dispose of the goods of subjects except in this way.

1. In Belgium, for the various earlier direct taxes there was substituted a general tax upon income (law of October 29, 1919, arts. 1, 7, and 90).

Hence they sin not only against legal or distributive justice, but also against commutative justice:

a) Those who knowingly impose taxes (legislators, ministers, the king sanctioning them) without probable necessity or utility, because they unjustly deprive citizens;

b) Those who squander public monies without utility, with danger of burdening the peoples in the future;

c) Those who divide burdens among subjects without proportion to their faculties, and exceed these.

626. Thesis I. Taxes de iure and per se oblige in conscience, at least after the quota part has been legitimately determined according to justice.

It is explained. It is said: a) de iure and per se, insofar as the legislator has the power of obliging subjects in conscience, and is judged to intend this unless the contrary is clear from the circumstances. For legislators can also establish a merely penal law and oblige under the penalty alone; hence, if from the circumstances it is evident that such was the mind of the legislator, or that the law is understood by the greater part of the people as merely penal, and the legislator does not contradict, by accident the law does not bind in conscience except to the penalty;

b) At least after the quota part has been legitimately determined: for in present-day law the law does not oblige subjects, unless after legitimate authority has defined the quota to be paid and imposed it upon the citizen; for then the general obligation of paying taxes passes into a strict obligation, which can be sought by civil action. The determination of the quota to be paid is usually made by taxation by officials; but that it may be made more easily, sometimes a declaration to be made by citizens is prescribed by public power; in which case, even if there is an obligation of conscience of declaring, nevertheless, before the quota has definitively been imposed, there is not yet an obligation of paying, especially from commutative justice;

c) According to justice: for insofar as taxes are not unjust, so far they per se oblige.

It is proved: 1. From the Scriptures: a) implicitly, from the example and words of Christ, who commanded Peter to pay the tax (Mt. XVII, 23-26), and, being asked by the Pharisees and Herodians whether it was lawful to give tribute to Caesar, answered: "Render therefore the things that are Caesar's to Caesar, and the things that are God's to God" (Mt. XXII, 21); b) explicitly, from the doctrine of the Apostle Paul, Rom. XIII, 5-7: to rulers "be subject of necessity, not only because of wrath, but also because of conscience. For therefore also you pay tribute: for they are the ministers of God, serving unto this very thing. Render therefore to all their dues: to whom tribute, tribute: to whom toll, toll." Hence taxes and tolls must be paid in conscience, because they are ministers of God.

2. From the common doctrine of theologians of all times.

By reason: Citizens are bound in conscience to furnish those things which are necessary for administering and protecting society. But society generally cannot be administered and preserved without expenses necessary for preserving good order, protecting the fatherland against enemies, and promoting the common good; and these expenses cannot be paid unless taxes are imposed. Therefore citizens are bound to pay them in conscience; but if they could not be held in conscience, the end intended and necessary to the common good would not easily be obtained.

627. Thesis II. Even de facto, in present-day times and in many regions, taxes, at least direct taxes, oblige in conscience. We say: in many regions, because we would not dare to pronounce a firm judgment for England and English-speaking America.

Some have attempted to deny the thesis or call it into doubt, saying:

a) Present-day legislators care nothing about obligation in conscience;

b) The common persuasion of the people is inclined to considering tax laws as merely penal, whence also many of timid conscience defraud taxes;

c) Given an obligation of conscience, timid men would be in a much worse condition than the impious who do not care about such an obligation.

But, says Prummer, "everyone easily understands that these reasons are not convincing." For the response is:

To the first, that a true obligation may be present, it suffices that the legislator truly intend to impose the law and wish to command: for by that very fact an obligation of conscience naturally follows, and he implicitly intends it; otherwise almost no civil law could now oblige in conscience (I, n. 284).

To the second, the persuasion of the people rather regards the prior declaration to be made by citizens for certain taxes, but not the payment itself of taxes already defined, since citizens rarely are able to evade payment in such a case; moreover, in present-day law the estimation and custom of the people obtains no power of authentically interpreting or abrogating laws.

1. Thus Angelus Carletus (d. 1495), against whom Sylvester Prierias, O.P. (d. 1523) vehemently fought. In more recent time Biederlack, Crolly, Genicot-Salsmans, Frassinetti, Bucceroni favor this opinion; Vermeersch inclines to it; St. Alphonsus does not dare to call it probable.

2. Yet this is not universally true, nor in all regions.

To the third: it proves too much, because, if it had force, it could almost always be applied, and there would now be no obligation of human law in conscience.

The aforesaid opinion, therefore, is neither solidly nor sufficiently probable, if the reasons adduced are considered, and a fortiori if the opposing reasons are considered.

It is proved: 1. From the intention of the legislator and the end of the law: the legislator is judged to oblige in conscience when the law immediately contributes to the common good and is very necessary for the public good, such as a law imposing taxes is: for then he is presumed to oblige in the more efficacious manner, insofar as he can.

2. From the penalties and sanctions of the law: the obligation of paying direct taxes already defined is usually urged not only under penalty of a fine, but also by coercive penalties, for example, prison, indeed also by civil action, so also that sometimes it is a privileged debt fortified by legal mortgage: then the fiscal laws themselves grant the State a strict personal right, even before other debts, of pursuing payment from the goods of citizens by coercive force (for example, by compulsory sale), and indeed without judicial sentence, because from the law itself immediately the title is executory in the same degree as a judicial sentence.

Thus also in Belgium: formerly the law of August 22, 1822, now the law succeeding it, of October 29, 1919, arts. 70-73. The same is valid concerning duties imposed on occasion of succession (law of December 27, 1817, art. 3). But if sometimes recourse is given to a tribunal, either it is against the mode of proceeding alone, or for fines to be imposed besides upon defrauders, but not for founding the right of the State and the obligation of citizens, which the judge only recognizes.¹

¹ Nor does the objection of Fr. Vermeersch have force: sometimes someone has a civil action before a judge, and yet does not have a strict right, for example, to some reparation to be made to him (on account of damage inflicted in goods of soul or body or external goods), before the sentence of a judge has intervened. We concede this concerning those cases in which the sentence itself of the judge is the immediate title of the said right. But the public treasury (the fisc) has the right immediately from the law itself and independently of the intervention of a judge. Thus Kiselstein, in Revue Eccl. de Liege, March 1922. The whole article deserves to be read.

3. From the very words of the law. Even the law of taxes often employs imperative words, which ordinarily are accustomed to found the presumption of obligation.

Thus also the new Belgian tax law (arts. 11, 20, 21, 28, 32, 38, 70); moreover, in the discussions preceding the acceptance of the law, the strict natural office by which citizens are bound to pay taxes was mentioned several times.²

² Ann. Parl., October 10, 1919, p. 1985.

4. Finally there is added that a merely penal law, in so great a universality of all taxes, would necessarily open the way to innumerable frauds, lies, and perjuries, from which inequality and injustice would prevail with great detriment to the whole of society and of morals.

Hence tax laws, provided they are just and are applied in practice according to the rules of justice, oblige in conscience, from justice and obedience, unless the contrary appears from special circumstances. But the contrary does not appear except probably a) for laws merely prohibiting certain merchandise to be imported (droits de douane), unless it concerns merchandise prohibited because dangerous to public security: for grave fines and the multitude of watchful officials seem to indicate that nothing is left to the consciences of subjects. Likewise b) for taxes imposed on occasion of the manufacture or cultivation of certain things (droits d'accises ou de culture). Likewise c) for certain laws in postal matters, for example, that monies not be inserted in ordinary letters, or letters be inserted among other things to be conveyed; and similar things which seem merely to be referred to external order and can be assimilated to laws about preserving public order, which are merely penal (lois de police).

628. There is a dispute concerning the nature of the obligation, and concerning its proximate foundation, and concerning the virtue by whose force it binds. On this there are three opinions:

The first is of those who hold the laws to be merely penal, which oblige only to the penalty, and then only from obedience and legal justice. This we have already refuted;

The second holds that the obligation arises from commutative justice, so that for those defrauding there is an obligation of restoring. Thus St. Antoninus, the Roman Catechism, Billuart, and many others, so that St. Alphonsus calls the opinion most common and more probable. The principal reason is the implicit contract which intervenes between the prince and the people. The prince promises to procure the common good; citizens promise to pay the taxes necessary for sustenance and for taking care of the common affair.³

³ There is a manifold way of defending this opinion: 1. the right of occupying taxes by force of a pact or implicit contract, because social life is impossible without goods; 2. the contract is one of insurance, and the tax is the premium of insurance: thus Thiers and Mirabeau; 3. the contract is an exchange of offices, and the tax is the price by which utilities are bought, a recompense for an emolument received: thus Hugo Grotius, Bastiat, Ad. Smith; 4. the tax is a real burden in goods established for cooperation: thus Genouillac, Monier, De Broglie, Yves Guyot. But the State is not a society of monies but of persons; otherwise, how in that case could indirect taxes be justified? Cf. Janssen, Le fondement philosophique du devoir fiscal, in Eph. Theol. Lov., July 1925; and De Zedenleer en het belastingswezen.

By the name of tax is understood a payment which subjects pay from their own goods to the Government for the common expenses of the Republic. Some taxes are direct, which affect actual and determinate goods of private persons; others indirect, which immediately regard certain goods and only mediately the persons who transport, sell, buy them, etc.

I say, 1st. Imposition of tax is an act of supreme and legitimate authority, and therefore to this authority alone it pertains to decree whether and how much is to be paid by each one. The reason is that to that authority it pertains to lead society to the common good, to which taxes stand as means to an end. - Cf. St. Alphonsus, n. 615.

I say, 2nd. Besides legitimate authority, three other conditions are required so that the imposition of taxes may become licit, namely: 1st, justice of the cause, which is the necessity of the common good; 2nd, proportion of the tax with the occurring necessity, namely that the people not be burdened more than their good demands; 3rd, equality in persons, namely that those who have greater riches pay more. Cf. St. Alphonsus, n. 615.

Question 1. Whether laws which regard the payment of taxes, viewed generally, oblige in conscience, or are to be judged penal?

Resp. According to the opinion which St. Alphonsus calls most common and more probable, these laws oblige in conscience. It is clear, 1st, from Sacred Scripture; for Christ, Matt. xxii, 21, says: "Render the things that are Caesar's to Caesar," and the Apostle, Rom. xiii, 5: "Be subject not only because of wrath, but also because of conscience; for therefore also you pay taxes. . . . Render therefore to all their dues: tax to whom tax, tribute to whom tribute." It is clear, 2nd, from reason; for the supreme authority is held in conscience to procure the good of society and justly to distribute its burdens; therefore in like manner subjects are held in conscience to supply the means by which that good can and ought to be procured, and to undergo the distribution of burdens. - Cf. St. Alphonsus, nn. 615 and 616.

Nevertheless there are not lacking theologians who, perhaps not improbably, especially today, hold that these laws are only penal; and they say this is gathered both from the sense and manner of acting of peoples, and also from the way in which the supreme authority enacts and applies those laws. - Cf. Kenrick, tract. 6, n. 20. - Acta S. Sedis, vol. 7, pp. 219 and 220.

Question 2. Whether restitution must absolutely be exacted from those who, not observing tax laws, have defrauded the Government?

Resp. Negatively, probably, both because perhaps it could be doubted whether those laws oblige in conscience, and because even if they did so oblige, whoever did not observe them would indeed injure legal justice, but not commutative justice. Nor is weight of authority lacking to this opinion. For:

Bonacina, disp. 2, de Restitut. quest. 9, punct. 1, prop. 2, as regards indirect taxes, says: "Let it suffice for us to say that what we have asserted can probably be defended, lest we impose an excessively grave burden upon penitents after the fact, although before the fact this more benign opinion is not to be counseled, since the edicts of the Prince are not easily to be reprehended."

Vogler, n. 332: "Even though the faithful are especially to be exhorted to pay taxes diligently, nevertheless if at times they defraud somewhat, they do not seem to be obliged to restitution, because most common practice holds this, Princes connive, and in so great a multitude of taxes all the wisest persons doubt whether all are just."

Lugo, disp. 36, n. 43: "The counsel of Fr. Molina has always greatly pleased me . . . that before the fact it must be counseled that taxes not be defrauded; after the fact, if the penitent certainly or probably persuades himself that in so great a multitude of taxes there is something unjust . . . he is not to be compelled by the confessor to restitution; nevertheless, this doctrine must be used prudently . . . lest they render the sacrament of Penance too grave and lest they block the way of salvation for many, who, if they are obliged by the confessor, will not restore and will incur eternal damnation."

Scavini, de Restit. cap. 1, art. 1, after setting forth both opinions, says concerning the more benign one that it "does not lack its authority and probability. . . . Whatever may be the case concerning the probability both of the first and also of the second opinion, which we leave to be defined by wiser men, we admonish one thing for practice with the most learned Cardinal de Lugo: Generally speaking, the people are to be admonished and stirred up to paying taxes, but after the fact they are not to be compelled to restitution of the tax defrauded, if they probably persuade themselves that in so great a multitude of imposts they have paid something unjustly or have contributed sufficiently to public necessities."

Rousselot, in the notes to the Moral Theology of Saettler, de Leg. part. 2, cap. 2, art. 3, as regards taxes imposed upon goods, the trade of which is permitted to all under the condition of paying the tax, has these things: "There is not given an obligation of paying certain taxes before they are demanded, for example, taxes at the gate of a city, at a bridge, etc. For thus custom provides, and laws do not oblige beyond custom. Moreover, with the author, Saettler, and very many other foreign authors, it can more probably be asserted that those taxes for the exacting of which guards and collectors have been appointed are neither to be paid in conscience, nor are those defrauding them held to restitution."

"These things having been duly weighed, it must not immediately nor easily be pronounced that the defrauding of indirect taxes is sinful and obliges to restitution. Nevertheless, let these things not be preached upon the roofs; but with St. Alphonsus and Saettler, let pastors and confessors urge observance of the laws also in this matter, let them deter from transgressions with all their strength; but let them not immediately condemn transgressors of grave sin nor force them to restore, especially if greater evils, for example, desertion of the sacraments, are to be feared. From another side, good faith often intervenes, to which they are deservedly left."

Cf. also Revue des sciences ecclés. vol. 17, p. 86. - Ballerini, note (a), p. 615.

You will gather from what has been said, 1st, that the confessor, speaking absolutely and under penalty of denying absolution, cannot indiscriminately urge the obligation of paying these taxes in the future, although he ought diligently to exhort the faithful to pay them diligently and to abstain from every defrauding of them.

You will gather, 2nd, that the following are certainly to be condemned: 1st, those who corrupt by unjust means those placed over the exacting of imposts, lest they perform their office; for they sin at least by cooperating in the sin of these men; 2nd, those who do not pay taxes already imposed for a long time, which have been paid by all and no complaint concerning their injustice has ever been heard; 3rd, those who violently resist the ministers exacting imposts; for these certainly sin at least against legal justice; 4th, those who by right and wrong means exercise defrauding as if it were a certain trade, and with the intention of resisting, even armed, wander by day and by night; for men of this sort become rebellious citizens and most harmful to society; 5th, those who, although they never resist nor have the intention of resisting, nevertheless with every zeal and work devote themselves to the art of defrauding, and have it as if the profession of their life; for these at least are not rarely exposed to dangers of soul; 6th, authors probably excuse from violated commutative justice citizens who do not assign the full value of houses, etc.; or, when an estate has been bought, put down a lesser price, namely lest they be compelled to pay the whole tax. For in reality in certain places these taxes are excessive; many enough other men do the same; and officials plainly know that these methods are employed. Therefore practically the proportion among citizens is preserved; nor are notaries, who by office have not been appointed to procure these taxes for the state, immediately to be condemned because they do not turn men away from these arts. And therefore where there exists a custom of lowering the price, it does not seem to be unjust to assert that the declaration was duly made, provided namely that the price not be excessively diminished beyond the custom of others. Cf. Bulot, n. 673, 2. - Lehmkuhl, n. 1173, ed. 11th.

Question 3. Whether officials sin against justice whenever they do not exact the tax?

Resp. Affirmatively, in itself generally, and indeed gravely in grave matter. The reason is clear, since they have obliged themselves to watch duly and to exact taxes diligently. Wherefore, if they are lacking in their office, they are held to restitution toward the Republic. - I said generally because according to several, those placed over the exacting of imposts are not always to be condemned when sometimes they act more benignly in a light matter, especially with the poor or even with those who otherwise pay diligently.

Under the name of tax we here understand everything that is customarily paid to the prince or the state by private persons, whether it be a tax properly so called, a toll, a road-duty, a tallage, and similar burdens, in which an acceptance of persons is not infrequently committed.

You will ask 1° what conditions are required for taxes to be imposed licitly.

I answer: three are commonly required. The first is legitimate authority. The second is a just cause, which ordinarily is the public good; yet sometimes it can also be vengeance upon rebellious subjects or defeated enemies, by reason of just punishment or reparation of damages. The third is due proportion, such that, as far as possible, each one be burdened according to his means — not the poor more than, nor equally with, the rich, nor one merchant more than another of the same condition. For common burdens must be distributed so that they are borne by each according to his rate, and those who can more should be burdened more; otherwise distributive justice is not preserved, but there is an acceptance of persons.

These three conditions therefore concurring, princes licitly impose and exact taxes; because, since it devolves on the prince by his office and by the will of the people to administer the state, care for the common good, provide for common necessities, etc., and he cannot have the necessary equipment for these except through taxes, the prince can by right impose and exact them, as regards his own decent state and that of his officials and public necessities, as necessary and sufficient.

You will ask 2° whether it is lawful to defraud taxes.

I answer: To defraud just taxes, whether they are demanded or not, is, by its genus, mortal sin against justice — not only legal but also commutative justice — and consequently obliging to restitution.

It is proved 1° from the Apostle, Rom., XIII, 5-7, who says: Be subject of necessity, not only for wrath, but also for conscience' sake. For for this reason also you pay tribute; for they are the ministers of God, serving unto this very thing. Render therefore to all their dues: tribute to whom tribute is due, toll to whom toll.

It is proved 2° by reason. Taxes are debts owed to the prince by the people, not only by legal justice, by which the parts are bound to contribute to the good of the whole, but also by commutative justice. Therefore defrauding, etc. — It is proved beforehand: by the very fact that the people transferred authority and the administration of the state to the prince, it tacitly promised him a just stipend for his function and the subsidies necessary for right administration, as has already been said. Therefore, once the law of taxation is posited — by which this obligation of the whole people is distributed among individuals, each one's share assigned, and the things in which payment is to be made determined — individuals are bound in justice to their own quota. — The consequence is clear; because by whatever obligation the whole people is bound in general to the necessary expenses, by that obligation individuals are bound in particular to their quota legitimately assessed.

I said in the conclusion, « whether they are demanded or not, » regard being had namely to the nature of the debt; because it can be otherwise, regard being had to custom. For in certain places a custom has prevailed that taxes are not paid unless demanded. In these places, therefore, a passing merchant is not held to pay the toll if no one is present to demand it, provided however fraud be absent, as would happen if he hid his merchandise, fled, turned aside from the public road lest he be seen by the collectors, or otherwise deceived them.

Note well. With the tax laws must not be confused the laws which, without imposition of a duty, simply prohibit certain goods commonly called contraband from being carried out of a province or brought into it. Those who transgress these laws are not held to restitution of the duty, because there is none, nor to the penalty before the sentence of the judge, because it is a punishment.

Whether, however, such laws oblige in conscience, and whether transgressors are held for the damage that thence accrues to the state or to the farmers of the revenue, let others say. I know indeed that many assert these laws to be merely penal, and to bind only to the penalty after the sentence of the judge, and that thus princes have declared more than once in France and in Belgium. But that does not stand established for me. I confess, however, that men even of probity usually apprehend them thus; for you would scarcely find anyone who makes a scruple to himself if he transfers money, Indian cloths, tobacco, or other things of this kind from kingdom to kingdom, or at least buys them and uses them, although not only the bringing in but even the use is prohibited. As regards damages, it seems these are sufficiently compensated by the penalties which transgressors caught are forced to pay, which not rarely happens. Moreover the farmers of the revenue presuppose these defraudations when they contract with the prince, and therefore contract at a lower price. But in all this I would not wish to give assurance. This one thing I affirm: that those gravely sin who carry on this traffic when it is prohibited under pain of death; because it is not lawful to expose oneself to the danger of so great a penalty for temporal gain. Likewise when they intend to defend themselves with offensive weapons against the guards.

[The other opinion denies that sin is committed by the defrauders, and that they are bound to restitution, holding universally that tax laws are merely penal. The reason is, 1° because such laws are enacted generally under pain, and indeed under grave pain: hence it is rightly presumed that the legislator does not will to bind without fault. 2° If all taxes were paid integrally, they would exceed the public necessity. 3° Moreover, the penalty, the mulct imposed on those whose frauds are detected, amply compensates other frauds, and thus the intended end is attained. « But whether, » says St. Alphonsus ⁴⁷⁶, « on account of these reasons, which moreover do not seem contemptible, this opinion itself is sufficiently probable, I remit to the wiser. » Here it must be noted that, since the reasons by which this opinion is supported seem non-contemptible to the holy Doctor, that opinion itself ought to have appeared truly probable to him. Elsewhere he says ⁴⁷⁷: « I do not fail to recommend the first opinion (thus expounded). » He would not merely recommend it but would even impose it, if he held the opposite opinion as improbable. ⁴⁷⁶ Lib. IV, n. 616. ⁴⁷⁷ Homo apost., X, 81.

A third opinion takes the middle way and says: Those defrauding taxes sin, since the edicts of the prince are not easily to be reprehended; but they are not held to restitution. The reason is that subjects must indeed keep the laws and pay the taxes, but no otherwise than the prince himself is bound to govern them, namely by legal justice alone, from whose violation no obligation of restitution arises. Otherwise, this question is commonly apprehended in our times, both because many excessive taxes have been made; and because certain taxes, and perhaps many, must be reckoned unjust; and finally because defraudations are compensated by the penalties applied, which for this end have been enacted heavy and most heavy. So several recent authors.

Moreover, the question does not seem to be solved by a general rule. For it depends on the mind of the legislator and on the usual interpretation, which can vary for different times and places, indeed even for different taxes. Thus, for example, in England the tax laws are thought, probably, to bind in no other way than after the manner of penal laws ⁴⁷⁸. In France, the laws concerning indirect taxes are rather commonly reckoned penal, especially as regards the law of succession in the direct line, but by no means the laws concerning direct taxes ⁴⁷⁹. ⁴⁷⁸ Crolly, de Restit., n. 1032. ⁴⁷⁹ Marc., Instit. moral. Alphons., n. 967.

In this conflict of opinions, recourse seems to be had to the practical rule proposed by Cardinal De Lugo ⁴⁸⁰: « To me, » he says, « the counsel of Fr. Molina has always been most pleasing...: before the act, that care be taken that taxes not be defrauded; after the act, if the penitent certainly or probably persuades himself that in so great a multitude of taxes there is some unjust one..., he is not to be compelled by the confessor to restitution; yet this doctrine is to be used prudently, both lest they make the sacrament of Penance too burdensome, and lest they shut out the way of salvation from many who, if bound by the confessor, would not restitute and would incur eternal damnation. » So also Bonacina ⁴⁸¹, Vogler ⁴⁸², Scavini ⁴⁸³, Rousselot ⁴⁸⁴. ⁴⁸⁰ Dist. 36, n. 43. ⁴⁸¹ Disput. 2, de Restit., q. 9, punct. 1, prop. 2. ⁴⁸² N. 332. ⁴⁸³ De Restit., cap. 1, ⁴⁸⁴ Not. ad theol. mor. Saettler, de Legib., part. 2, c. 2, a. 3.

Cardinal Gousset, although he generally stands for the obligation, recommends the same prudence toward penitents ⁴⁸⁵. ⁴⁸⁵ N. 999.

St. Alphonsus relates this rule and seems to approve it ⁴⁸⁶] ⁴⁸⁶ Lib. IV, n. 616, in fine.

You will ask 3° whether taxes whose justice is doubted must be paid in conscience.

Now the reason for doubting the justice of a tax, say weighty authors, is when new taxes are imposed or old ones increased; likewise when there is a common persuasion among the people, especially among the upright and learned, that those things which are imposed or increased under pretext of necessity are expended on unnecessary uses, or exacted in greater quantity than the necessity requires. For so many conditions, they say, are required for the justice of imposing or increasing a tax, that amid so great a multitude of taxes with which peoples are burdened in these times, it may deservedly be presumed that some are unjust, and many uncertain and doubtful. In confirmation of this they adduce cap. Quanquam, de Censibus, in 6°, lib. III, tit. 20, where Boniface VIII says that exactions of road-duties « regularly » merited condemnation both against canon and civil law, because « regularly » some condition of regulated [exaction] is lacking. The question, I say, is very perplexed: are taxes in such a case necessarily to be paid in conscience?

Some affirm; because in doubt whether a law is just or unjust, presumption must be in favor of the superior, that he commands justly rather than unjustly; nor is it for subjects to recall their precepts to examination. So Sylvius, Carasutius, and others.

Some deny; because in doubt the condition of the possessor is better. Now the subject possesses his goods and immunity from tax. For this opinion Sylvester, St. Antoninus, Cajetan, Peter Navarre, Fumus, Arrigon, Medina, Gabriel, and many others are cited.

If I may open my own opinion among so great men, I will say that neither foundation seems to me firm enough.

Not the first; because it must not, at least totally, be presumed in favor of the superior, when his own interest is in question and the damage is the subject's: his own interest, because it cannot be feared without reason that he may be partial and favor himself; the subject's damage, because then it seems equitable that the subject, before he be despoiled of his property, inquire whether he truly owes. Hence in cap. Pervenit, de Censibus, Decretal. lib. III, tit. 39, it is said: « It behooves that every census be known beforehand as to what and when it must be paid. » This will be elucidated presently.

Not the second; because possession does not render the condition of the possessor better except insofar as it imports a presumption of truth in his favor, as I said elsewhere. Which does not run here. For from the fact that the subject possesses his goods and immunity, no presumption thence arises that the tax is rather unjust than just. Moreover, if the subject possesses his goods, the superior possesses the authority of commanding; and thus one possession is compensated by the other.

Therefore, saving better judgment, I judge it must be said of doubtful taxes what I said elsewhere of other doubtful debts, namely that they must be paid pro rata of the doubt, so that subjects are neither altogether free from paying them nor compelled to pay them integrally: lest, on the one hand, if you exempt subjects from paying doubtful taxes, you harm the prince, to whom they are perhaps owed, and unjustly withdraw subjects from the obedience owed him; and, on the other, lest, if you compel integral payment, you inflict damage on subjects who perhaps do not owe it. Therefore the doubtful tax must be paid, lest the danger of committing injustice be incurred; yet it is not to be paid entirely, because a doubtful debt is not of such value as a certain debt. See Dissert. de Restit., art. 3, You will ask 13°. Yet I would not wish in this matter to make the subject a judge in his own cause; but let him consult upright and learned men who, regard being had on the one side to the reason of the doubt, and on the other to the quantity of his goods or business, may say in equity how much he ought to pay, and let him stand by their judgment. And what I say of the very payment of the doubtful tax, the same must be said of the restitution of what was not paid.

Nor does the most learned Sylvius seem alien to this opinion — otherwise standing in doubt for the party of the prince — when he says q. 66, a. 8, concl. 7: « If anyone defrauds of those duties as much as he in good faith judges himself burdened more than fairly, he neither sins nor is held to restitution. Which the confessors ought to remember, when the restitution of defrauded duties is to be enjoined. »

[It has already been said elsewhere that this solution, namely that in doubt about the justice of a tax payment must be made pro rata of the doubt, cannot be admitted: 1° because it would be difficult, indeed impossible, to determine the comparative weight of the arguments which fight for and against the legislator; 2° because, when a doubtful obligation is in question, it must be examined and decided whether it exists or not, and as long as it does not clearly appear to exist, one must practically hold it as none. Hence either it must be fulfilled entirely, or it can be left entirely. This results from the principle laid down and proved in the question on Probability, in the treatise on Human Acts.

The difficulty, therefore, must be solved otherwise.

Lessius ⁴⁸⁷, and with him several others, say the tax must be paid when the doubt is merely negative, that is, when it is simply unknown whether the tax is just; because then nothing positive can be invoked in favor of the taxpayer, and on the contrary the presumption stands for the prince, whose authority is in possession of commanding. But if the doubt is positive, and there is a true presumption about the injustice of the tax, Cardinal De Lugo ⁴⁸⁸, with Molina, denies that the tax must be paid in conscience: because the obligation is not certain; the subject possesses at once his liberty and his money, of which he ought not be deprived except by a certain title; besides, the burden of proving his law just falls on the prince, the asker of money. This opinion, however, the aforesaid authors limit: new taxes, whose cause does not appear sufficiently just; for taxes which for a long time have been paid peacefully by all are presumed just, unless their cause has wholly ceased. ⁴⁸⁷ Lib. II, cap. 33, dub. 8, n. 64. ⁴⁸⁸ De iustit., dist., n. 89.

You will say: There is a rule of law that « in doubt the law is presumed just. » Therefore equally also the tax.

I answer: I deny the parity. Indeed the presumption stands for the legislator in ordinary laws, because his authority is in possession of commanding, and obedience cannot be denied or suspended unless it be proved or must be presumed from grave reasons that the law is unjust; which burden falls on the subject. On the contrary, in tax laws, the burden of proving the justice of the law falls on the prince. For laws of this kind are odious, and rule 15a of law in 6° applies to them: « Odious things must be restricted, and favors amplified. » Moreover, it is commonly taught that the subject is not held in doubt to obey when the command is too difficult, or inflicts grave damage on him, by this other rule of law: « In doubt favor must be shown to him whose damage is in question. » Furthermore, the payment of an unjust tax is a most damaging thing (?).

Besides, many most weighty doctors say that there are few [tri]butes in which, in establishing them, all the required conditions for their being just are found to have been observed: whence, since the justice of a new tax does not clearly appear, it has against itself a presumption ^{1 1} 1

You will ask 4° whether he who buys merchandise from someone whom he knows has unjustly defrauded the duties is held to pay them.

I answer: in the negative; because the duty is not a real burden, fixed to the thing, which passes with the merchandise, but a personal burden of the seller, though contracted by the transportation of the thing.

Moreover, it must be noted that, although he does not sin precisely from this, that he buys such merchandise, nor is held to restitute the duty, yet if by buying thus he moves another to defraud again, he could sin and be held to restitution, as a cooperator in the damage.

[It is certain 1° from natural law. For the Church is a society perfect in itself, and insofar as it is spiritual and instituted immediately by God, it is superior to civil society: whence by a double title it is independent of this latter. Hence: 1° as a perfect society, it must be furnished with all the means necessary for attaining its end. Now, since man consists of a twofold substance, namely body and soul, the spiritual good of the faithful cannot suitably and completely be provided for without earthly goods. Therefore there belongs to the Church the right of obtaining earthly goods and possessing them as her own. 2° If civil society had the power of imposing its tax laws on the Church, the Church would not be superior to that society, nor independent of it; for taxes cannot be exacted except from inferiors and subjects. Therefore.]

It is certain 2° from civil law, L. Sancimus. c. de sacrosanctis Ecclesiis, L. I, tit. 2, which is of the emperor Justinian. Novella 1. S. Lig., lib. IV, n. 617.

Likewise many laws, c. de Episcopis et Clericis, ibid., tit. 3, which are of the emperor Frederick. Also cap. In qualibet, causa 23, q. 5, which is of the emperors Constantius and Constans.

It is certain 3° from canon law, cap. Quanguam, de Censibus, in 6°, lib. III, tit. 20, which is of Boniface VIII; cap. Clericis laicis, tit. 23, de Immunit.

The great Fourth Lateran Council, to which besides four hundred and more Bishops there were present eight hundred Abbates as well as Priores, the legates of the Emperor of Constantinople, and of the Kings of the Romans, of the French, the English, the Hungarians, the Aragonese, and of many other princes, under Innocent III, prohibits under anathema that laymen exact taxes from ecclesiastics.

I SUPPOSE with D. Bonav. in 2. dist. 44. art. 2. quaest. 2. that subjects are held in conscience, from justice, to pay to the Prince the tributes and tolls justly imposed. The holy Doctor proves it from that passage of Matth. 22. where Christ defines: Render therefore to Caesar the things that are Caesar's, and to God the things that are God's. This opinion is that of Jesus Christ. The Apostle Paul follows him, Rom. 13. Render to all their dues: tribute to whom tribute: toll to whom toll. The holy Doctor urges the same at the place cited.

But tribute is a payment imposed on subjects by the Prince, according to each one's means, especially landed means, etc., for the Prince's dignity and the public expenditures to be sustained in the kingdom. Toll, however, signifies a payment for things that are exported from the city, or imported into it, or for the transport of goods across bridges and through ports, as Lessius notes, cap. 33. Tanner. disp. 4. quaest. 6. dub. 12. n. 336. with D. Bonav. in vita Christi, cap. 60.

But that the payment be just, four conditions are required, without which they are robberies, as the holy Doctor teaches in speculo animae, cap. 2. and I discussed more broadly t. 2. Tract. de Legibus, disp. 5. quaest. 11. The first is, that it be imposed by an absolved Prince; others, however, are excommunicated in the Bull of the Coena. The second, that the cause be just, that is, the public good, as for public debts, or expenditures, in peace and in war, or for the legitimate sustenance of the Prince. The third, that it be imposed only on things of commerce and the like. See Valentiam quaest. 6. punct. 6. The fourth, that it be done in a legitimate manner, or form, according to the proportion of goods, so that nothing is exacted from non-subjects either, or some subjects are exempted to the prejudice of others, as Tannerus notes. It is found in l. Omnium, as I shall say in doubt 3.

But whether, on the part of the efficient cause, they can be imposed by enfeoffed Princes. It is answered affirmatively. Therefore the Pontiff, the General Council, the Emperor, Kings, Princes, and Feudataries can impose tributes, as Valentia notes, loc. cit. Caietanus v. Vectigal. Medina quaest. 13. de restit.

On the part of the end you ask: Whether they can be imposed by the Prince to endow his daughter, to ransom his son, for decent recreations. And it is answered affirmatively. See Caspensem disp. 8. sect. 4. Covar. in reg. Peccatum, p. 2. §. 5. Valentiam at the place cited.

On the part of the form they must be imposed according to the proportion of means and strength; nor more than the causes require. Concerning which see Caietanum.

On the part of the matter, by civil law they ought to be constituted only in things which pertain to the commerce of buying and selling, and the like, l. Omnium, C. de vectigalibus. But not in those which one acquires for his own use and necessity, as Caietanus noted, and Angelus verb. Pedagium, §. 3. adding that a contrary custom does not avail in this; but that it can be introduced by custom, Valentia loc. cit. Navar. Manuali, cap. 17. num. 203. Antonin. 2. p. tit. 1. cap. 24. Sylvest. verbo Gabella, 3. num. 14. Valentia at the place cited admonish.

It is asked, therefore: Whether by some particular law, or custom, tributes can be imposed on those things which are acquired for necessary sustenance, as bread, wine, oil, salt, and the like.

The affirmative opinion Molina upholds, tom. 3. disp. 669. Suarez de Legibus lib. 5. cap. 15. Vasquez opusc. de restit. cap. 6. §. dub. 1. Azor. p. 3. lib. 5. cap. 21. quaestio 1. Malder. 2. 2. Tract. 5. cap. 6. Ioan. de Cruz in direct. p. 1. praecepto septimo, art. 3. disp. 1. Turrianus 2. 2. T. 2. disp. 14. dub. 3. Lessius lib. 2. cap. 33. dub. 7. Reginald. T. 1. lib. 10. cap. 25. n. 377. Molfesius summa, T. 2. tract. 12. cap. 23. But these last three say these gabels are licit under these conditions: First, when public necessity presses, and tolls cannot be had elsewhere, or do not suffice. Second, when this gabel is established by the free consent of the people. Third, when, for the security of the aforesaid things diverted another way, provision cannot otherwise be made. When they have been imposed by immemorial custom.

The negative opinion Caietanus defends, verb. Vectigal, Zanard. directorio p. 2. cap. 12. super septimum praeceptum, Medina p. 2. quaest. 96. art. 4. Sotus de Iustitia, lib. 3. quaestion. 6. artic. 7. Tolet. lib. 5. cap. 73. Angel. verb. Pedagium, Sayrus de Censuris, lib. 3. cap. 9. Bertazolus vol. 1. consil. 107. Roland. vol. 3. consil. 42. num. 18. Decius consil. 96. num. 5. et 18. Bonacina de contract. disp. 2. quaest. 9. p. 1. and Diana thinks it probable, p. 1. tract 17. resol. 28. although he judges the opposite more probable. The reason is, because the just form of the gabel is not observed; for in that form of tributes the Poor are burdened more than the Rich.

But it can be doubted: Whether a creditor of the Prince or of the city, by defrauding the gabel, can compensate himself the debt owed him.

Reginaldus denies it, Tom. 1. lib. 10. cap. 24. num. 383. Graffius p. 1. lib. 2. cap. 125. num. 39. when the gabels are leased to publicans, who pay the Prince a determined payment wherever; for then the loss falls on the Publicans, not the Prince.

Yet they assert this compensation to be licit: Petrus Navar. lib. 3. de restitut. cap. 1. num. 24. Lessius de Iust. lib. 2. cap. 33. dub. 10. Bonac. de contract. disp. 2. quaest. 9. p. 1. num. 12. who cites Vasquez and Molina. Bartholomaeus a S. Fausto also holds it, in spec. disp. 33. quaest. 37. Turrianus 2. 2 T. 2. disp. 46. dub. 3. Molfesius tomo 2. tract. 12. cap. 22. num. 142. Vega in summa p. 1. cap. 15. casu 10. Malder. 2. 2. tract. 5. cap. 9. dubitat. 16.

Yet this opinion is not proved to me, on account of the reason brought for the first opinion; nor does Diana answer sufficiently, p. 1. tract. 16. resol. 16., that the lessees of the Gabel do not receive a loss, because they lease the Gabels and Duties at a far smaller price; because they know the frauds of subjects.

For it is against it, because they are shaken enough by the ordinary frauds of subjects, unless they also pay the Prince's dues, by which indeed they are annihilated, immense as they are.

But if the doubt be: Whether the toll is unjust; many assert that the subject is held to pay. So Suarez de Legibus, lib. 5. cap. 18. num. 20. Vasquez de restit. cap. 6. §. 3. disp. 5. num. 78. Turrianus 2. 2. Tom. 2. disp. 46. dub. 6. according to that saying: In doubts the condition of the possessor is better; and the possessor (they add) is the Superior, who has authority. But Carbo quaest. 33. Sylvest. v. Gabella 4. num. 7. and others say they bind, if they are old; otherwise if new.

Yet that they are not held to pay them, Less. teaches, lib. 2. cap. 33. disp. 9. num. 67. Reginald. T. 1. lib. 10. cap. 25. sect. 1. num. 374. Megala p. 2. lib. 2. cap. 17. quaest. 8. num. 152. Navar. de restit. lib. 3. cap. 1. p. 3. dub. 13. num. 167. Salon. de restit. t. 1. quaest. 5. art. 4. controv. 2. Batthol. a S. Fausto in spec. disp. 33. quaest. 23. Sanchez in summa, tom. 2. lib. 6. cap. 3. num. 7. Malder. 1. 2. Tract. 5. cap. 6. dub 4. Diana p. 1. Tract. 17. resol. 59. The reason is, because better is the condition of the possessor; but the subject is in the power of his own liberty. He is subjected indeed to the Prelate; and in this matter possession favors the Subject. Tannerus inclines this way, disp. 4. quaest. 6. dub. 22. I refer these things to what was said first, 2. Tract. primo, Disputatione de conscientia.

SINCE, however, the chief difficulties in this matter are about the Formal and Final causes of tributes and tolls, namely that they be imposed for the public utility, and that they be imposed according to distributive justice; as the Doctors commonly say, Turrianus 2. 2. col. 1. disp. 44. dub. 1. and 2. Bonac. tract. de contract. disp. 2. quaest. 9. p. 1. Aragon. quaest. 77. art. 3. Valentia tomo 3. disp. 5. quaest. 6. puncto 5. Suarez de legibus, l. 5. cap. 14. num. 16. Barthol. a S. Fausto in speculo, disp. 33. quaest. 2. Salas de leg. quaest. 69. tract. 14. disp. 15. sect. 10. num. 118. Lessius lib. 2. cap. 33. dub. 1. and 2. Reginald. T. 1. lib. 10. cap. 25. num. 372. Ledesiin. tom. 2. tract. 7. cap. 2. Malder. 2. 2. tract. 5. cap. 6. dub. 2. Layman lib. 3. sect. 5. tract. 3. p. 1. cap. 3. Tannerus disp. 4. quaest. 6. dub. 12. num. 323. and 344. Moltesius summa, Tom. 1. tract. 12. cap. 22. num. 37. Sylvius 2. 2. quaest. 66. art. 8. Villalobos T. 2. tract. 8. dub. 13. num. 14. and 15. Aragon. 2. 2. quaest. 62. art. 3. Vasquez de restit. cap. 5. §. 2. dub. 1. and 2. Molina de Iust. Tract. 2. disp. 667. and others, whom Diana reports, p. 1. Tract 3. resol. 2. Diana himself resolved many doubts on these.

FIRST: Whether it is licit for a King to impose tributes in one Kingdom for the expenses made in his other Kingdoms, e.g. the King of Spain in the kingdom of Naples, for the expenses of Flanders. He answers affirmatively with Turriano 2. 2. T. 2. disp. 40. du. 1. Vasquez opusc. de restit. cap. 6. § 3. disp. 1 num. 7. and gives, by way of example, the reason in the King of Spain, who in guarding the religion stands alone against heretics and Turks, by whom he is little favored, and on whom the whole weight of the Christian Republic depends. He pursues this hyperbole at length.

He ASKS second. Whether a King, who through immoderate expenses on games and unjust wars has fallen into poverty, can justly impose tributes.

He answers affirmatively with Maldero 2. 2. tract 5. cap. 6. dub. 4. L. st. l. 1. cap. 33. dub. 6. num. 48. Turrianus 2. 2. t. 2. disp. 44. dub. 2. Molina de iust. tract. 2. quaest. 667. and others. The reason is, because the King's need turns into the Kingdom's loss. But Lessius notes that the Prince is held to moderate all superfluous expenses.

The GREATER difficulty is about the Formal cause.

HOWEVER GREAT may be the formal cause, drawn from pressing needs, for imposing taxes; nevertheless distributive justice requires that the resources of the peoples and the proportions of individuals be weighed, so that from this proportionate taxes be imposed upon rich and poor alike; nor should peoples be burdened so much that they are not merely plundered but flayed, as Salonius discusses de Iustitia in 2. 2. tom. 1. quaest. 77. art. 3. controv. 6. Villalobos summae, tom. 2. tract. 8. diffic. 13. Rodriguez in summa, p. 2. cap. 74. Ortiz in summa, cap. 22. num. 15. Turrianus 2. 2. tom. 2. disp. 45. dub. 1. Ioan. de Madcuaga lib. de Senatu, cap. 40. fol. 474.¹ Molfesius in summa, tom. 2. tract. 12. cap. 22. num. 36. Ioan. Franciscus a Ponte in Tract. de potestate Praerogativis, tit. 4. de regalibus impositis, num. 45. Vega in summa, tom. 1. cap. 15. casu. 3. Petrus Nauar. de restit. lib. 3. cap. 1. num. 237. Ledesma in summa, Tom. 2. tract. 7. cap. 2. Capiblancus l. de off. Baronum, Pragm. 10. Consultor Matutae in resp. cons. Messan. fol. 4. Diana p. 1. Tract. de Parlamento, resol. 5. where he admonishes Theologians who know of excesses in burdens to freely admonish Princes and their exacting ministers that the most severe judgment of God hangs over them and that they are bound to restitution; but all that these men discuss, the Seraphic Doctor sets forth more divinely. ¹ Editor's note: the print reads 'Ioan. de Madcuaga lib. de Senatu, cap. 40'; the surname cannot be resolved with confidence from the scan or OCR (perhaps 'Madriga' or similar); kept as printed.

THEREFORE the holy Doctor, in Speculum Animae, cap. 2, says: To establish new tallages, or laws, or customs for extorting money without just cause has the character of robbery. Likewise exaction is when someone demands a debt inordinately. Hence those who exact tallages from subjects in this manner, and do not show compassion for their need, however poor they may be, are rightly called robbers.

And in the book On the Ecclesiastical Hierarchy, p. 2. cap. 3. on the Potestates, whom he likens to Princes and Kings, he says on our subject: The secular power therefore will be well ordered, and disposed according to the likeness of the celestial Potestates, if those placed in authority be wise, that is, proceeding in all things not by the impulse of the will but by the helm of reason. Therefore Solomon at the beginning of his reign asked for wisdom, 3 Reg. 3. For just as in spiritual jurisdiction, so also in temporal matters, one must not act without wisdom and discretion. Hence it is commanded in Deuter. cap. 17: When the King sits upon the throne of his kingdom he shall write out for himself the words of the Deuteronomy, and receive a copy from the Priests of the Levitical tribe, etc., and he shall not turn aside to the right hand or to the left, that he and his sons may reign for a long time over Israel, etc. On this account Roboam lost his kingdom, 3 Regum 12, because, being young, he abandoned the counsel of the Elders and gave heed to the counsel of the Young Men, saying to Ieroboam and all the people: My father laid a heavy yoke upon you: but I will add to your yoke, etc. These and other most deserving things, which are read concerning Kings, he set down so that infallible doctrines may be drawn from them for preserving a kingdom flourishing most peacefully; hence he says: Those are true powers who rule their subjects not with tyrannical cruelty but rather with human, indeed angelic kindness, and guard the innocent. Hence it is said in Esther 13 by King Assuerus: Though I commanded many nations and subdued the whole world to my dominion, I did not wish to abuse the greatness of my power, but to govern my subjects with clemency and mildness, that passing their lives in quietness without terror they might enjoy the peace desired by all mortals.

ABOUT this we read how he moderated exactions, cap. 2: And he gave rest to all the provinces, and bestowed gifts according to the magnificence of his princely station.

THE SAME holy Doctor, in 2 dist. 44. art. 3. quaest. 1, says that by divine dispensation among Christians there are Kings and Princes, Lords and servants; and according to a distinction of power they are subjected to him and held bound in greater and lesser degrees. And the Lord himself says this, Matth. 22: Render to Caesar the things that are Caesar's, and to God the things that are God's. The Apostle also teaches this in 1 Timothy at the end, and condemns those preaching the contrary. And likewise Rom. 13: Render to all their debts: tribute to whom tribute: custom to whom custom. Therefore it must be conceded that Christians are bound to earthly Lords; yet not in all things, but only in those which are not against God; nor even in all of these, but in those which have been reasonably established according to right custom, such as taxes and customs dues.

HE ADMONISHES, moreover, in answer to the 1st of the Ecclesiastics, especially Religious, that they are not subject to the tribute payments of Kings, and he proves this by that passage of Matth. 22 cited above, where Christ addresses Peter: Do the kings of the earth receive toll from their own sons, or from strangers? And when Peter answered: from strangers, Christ took up again: Then are the sons free. Matth. 17.

ABOUT these matters Diana treats in his Tract. de immunitate Ecclesiae.

There he first defines, in resol. 35, together with many others, that Clerics of first tonsure are not held to the tributes of Princes. Next, that Clerics are not held to pay tributes to a Prince even if they do not wear the clerical habit and tonsure.

Then, that a Prince cannot impose Gabellas upon the goods of Novices; and he says this is the view of all Theologians and learned Jurists.

LIKEWISE, that a Prince cannot impose gabellas upon the goods of Ecclesiastics for the repair of bridges and walls; and he says this is common among Theologians.

SIMILARLY, by the common sense of the Theologians, that he cannot do so even upon the patrimonial goods of Clerics.

IN LIKE MANNER, that Ecclesiastics cannot be brought by the Prince to contribute to public expenses along with the people in this way; nor even when they concern equally and principally, and concern also the Ecclesiastics; but that in this case he ought to come to an agreement with them. Similarly, that a lay Prince cannot compel Clerics to pay the Gabellas which they are bound to pay, but must have recourse to Ecclesiastical Judges.

NOR is it lawful for a Prince to impose gabellas upon goods donated to or bought by Clerics. Indeed not even upon the goods of Clerics who assumed the habit without an intention of becoming clerics, but only in fraud of the Collects; and the Bulla Coenae excommunicates those imposing them. These and other matters Diana defines there, and in the following Tractate. But I shall treat of the Immunity of the Church in the third part of the Tract. de Sacramento Ordinis, where I shall disclose what the Seraphic Doctor thought on these matters.

THIS MUCH I would note here: that it is lawful in sum to demand such tributes from Ecclesiastics with respect to those things which they carry for the sake of trade, as Sylvester notes V. Gabella, 3. num. 10. Medina quaest. 13. et 15. de Restit. Navar. cap. 17. num. 203. Valentia quaest. 6. puncto 5.

YET whether a trading Cleric is bound to pay the gabellas on these goods after a threefold warning is disputed.

IT IS COMMONLY ASSERTED that he is. So Malderus 1. 2. Tract. 5. cap. 6. dub. 9. Portel. in dub. regul. V. Tributum, num. 5. Ioan. de Neviam tract. de commerc. lib. 1. cap. 14. num. 10. Prosper de Augustino in addit. ad summam Quaranta, V. vectig. Turtianus Tom. 2. in 1. 2. disp. 44. dub. 4. num. 12. and others.

YET Doctors are not lacking who deny that they are bound to pay after the threefold warning until they desist from trade. So teach Lopez Instruct. part. 2. cap. 41. Sousa in Bulla Coenae, cap. 19. disput. 92. Rodriguez summa tom. 2. cap. 75. Petrus Ledesma Tom. 2. tract. 17. cap. 2. concl. 17. Molfesius Tom. 2. tract. 12. cap. 22. num. 173. Lessius lib. 2. cap. 33. dub. 3. num. 23. Ioan. de la Cruz in direct. consc. part. 1. praecepto septimo, quaest. 7. art. 3. dub. 1. Reginaldus Tom. 1. lib. 9. cap. 25. num. 379.

SOME, however, reconcile both opinions: the Cleric loses the privilege of exemption at once on account of trade, yet he is not deprived of this immunity except after a threefold warning. For with respect to the very goods which he carries on occasion of trade, he is thereby exempt without any warning whatsoever, and on account of them, if gabella and toll are demanded, no excommunication is incurred; and thus the first opinion proceeds. But with respect to all his other goods and his person, he does not lose the privilege of immunity simply, unless after a threefold warning, should he be unwilling to desist; and thus the second Opinion proceeds. So teach Alterius de cens. tract. 1. disp. 19. lib. 5. cap. 6. quaest. 3. Molina tract. 1. disp. 147. Durandus in Bulla Coenae, lib. 2. cap. 18. quaest. 8. See also on this matter Ceballos tract. de cognit. per viam violentiae, part. 2. quaest. 64. Gutierrez de Gabellis, lib. 7. quaest. 94. Mariham de Iurisdict. part. 4. cent. 1. casu 3. Diana p. p. Tract. de Immunitate Eccles. resol. 46.