Summa summae S. Thomae, Tomus III

(D. Thomas, q. 63.)

1°: Acceptance of persons is the injustice by which, in common matters to be distributed by justice, no regard is had to the proportion of merits or the suitability of those who are candidates, but to some cause irrelevant to the matter. ¹

I said, « in common matters », whether goods, such as public offices, benefices, honors, judgments, etc.; or evils, that is burdensome things, such as taxes, tolls, public works, contributions, penalties, etc.

It must be observed, however, that common goods are of two kinds. Some are ordered primarily and immediately to the public good, and through it only mediately and secondarily to the benefit of the particular persons who occupy them, such as benefices, public offices, dignities, etc. Others are ordered primarily to the benefit of particular persons, such as the public treasury, common revenues, a legacy to be distributed to the poor, a sum of money handed over by the king to be distributed, stipends for well-deserving soldiers, etc.

In both kinds of goods, bad distribution is an acceptance of persons opposed to distributive justice, insofar as no regard is had to the proportion of merits; but moreover in both is found a violation of commutative justice, though in different ways. In the bad distribution of goods of the first kind, commutative justice is violated toward the state or the Church; because this or that has strict right that provision be made for it from the best ministers, and this devolves upon the providers by their office. Hence, strictly speaking, restitution must be made to it, not indeed to the particular persons, for whose benefit these goods are not primarily ordered, and who therefore have not strict right to them, but only a right of aptitude. But in the bad distribution of goods of the second kind there is found a violation of commutative justice even toward private persons; because from the fact that these goods are destined primarily to them, they have strict right to them, that is, a right to the thing itself, and the bad distributor is held to restitute to them.

I say 2°: Acceptance of persons is, by its genus, mortal sin. ² Because every injustice is, by its genus, mortal sin. Now acceptance of persons is an injustice opposed to distributive justice, which is a virtue more excellent than commutative justice, and from which follow damages no less than from commutative justice. Therefore.

By spiritualities we here understand ecclesiastical power, whether of order or of jurisdiction, and its exercise, especially ecclesiastical benefices and offices.

I suppose as certain that the conferral of spiritualities on an unworthy person, if worthy ones are found, is mortal sin, because it is an acceptance of persons in a matter of grave moment. ¹

The difficulty, therefore, is whether it is lawful to confer a benefice on a less worthy person, passing over one more worthy. Hence:

I say: The conferral of any benefice or ecclesiastical office made on a less worthy person, one more worthy being passed over, regularly speaking, is illicit, but valid. Say the same of presentation and election. It is the common opinion of the authors. ²

Furthermore, understand the conclusion thus: not that the collator or patron must inquire through the whole kingdom or province who is the most worthy; for that would be a burden too heavy, and liable to deception; but that from those who are at hand, or whose merits he knows or can come to know, using moral diligence, he choose him whom he judges the more worthy.

The first part of the conclusion is proved 1° from canon law, cap. unico: « Ut ecclesiastica beneficia », Decretal. lib. III, tit. XII. Innocent III says: « Not out of carnal affection, but with judgment weighed, ought you to have dispensed the ecclesiastical office and benefice to the more suitable person. » The Council of Trent, sess. XXIII, cap. 1, on the promotion of bishops, declares that those promoted and those lending their efforts sin mortally, « unless they have most diligently taken care that they judge them the worthier and more useful to the Church. » And cap. 18, on the presentation of pastors, says: « From these the bishop shall choose him whom he judges the more suitable than the others. »

It is proved 2° by reason. ³ As long as, in promotion to a benefice or ecclesiastical office, a less worthy person is preferred to a more worthy one, there is manifestly an acceptance of person injurious to the Church, for whose benefit ecclesiastical benefices and offices were instituted. Therefore.

But note that the worthiness of someone can be regarded in two ways. ⁴ In one way, simply and in itself; and thus he is of greater worthiness who more abounds in the gifts of grace in spiritual things. In another way, by comparison with the common good; for it sometimes happens that he who is less holy or less learned can contribute more to the common good because of power, or industry, or something of this kind. But greater worthiness must be regarded not simply, but comparatively, with respect to the common good.

The second part of the conclusion is clear from various places in the law which require only a worthy person. ⁵ This the interpreters understand with St. Thomas to mean that the conferral or election be valid and cannot be challenged in a judicial forum; because otherwise every election could give rise to calumny, and there would be no end of lawsuits.

From what has been said it follows that he sins mortally who promotes, or takes care to have promoted, presents, or elects to a benefice or ecclesiastical office having annexed the care of souls or ecclesiastical governance a less worthy person, one more worthy being passed over — or even to simple benefices, but otherwise of grave moment, for instance one having a vote in elections to dignities or to offices having the care of souls; because it is an acceptance of persons in a matter of grave moment, with great detriment to the Church, or at least from which such detriment can follow. See proposition 47 condemned by Innocent XI.

[Such is this proposition: « When the Council of Trent said that those communicating in the sins of others sin mortally who promote to churches none other than those whom they judge worthier and more useful to the Church itself: first the council seems by this to have meant by worthier nothing else than the worthiness of those to be chosen, taking the comparative for the positive; or, secondly, in less proper language it understood the worthier so as to exclude the unworthy, not indeed the worthy; finally, thirdly, it follows when the concursus takes place. »]

But it will be venial only, more probably, if simple benefices of lesser moment are in question, such as chaplaincies, modest canonries, provided they are not conferred by concursus; because, since such benefices are ordered to humble and very limited offices, such as reciting the office, celebrating Mass, singing the Epistle or Gospel, etc., it does not seem that grave damage is inflicted on the Church if sometimes a less unworthy man is placed over a worthier one.

I said in the conclusion, « regularly speaking, » because there are certain cases in which it is lawful to promote worthy men to benefices even with the cure of souls, worthier men being passed over.

1° If from the institution of the benefice it has been settled by the Church that the one to be promoted must be from the bosom of the Church, e.g., from a certain family. 2° If the founder of the benefice himself fixed beforehand who is worthy; for this privilege is granted to him by law, cap. Monasterium, causa 16, q. 7. 3° If in the election [...] it would not benefit the more worthy one.

You will ask 1° whether he who promotes an unworthy or less worthy person to benefices or ecclesiastical offices, one more worthy being passed over, is held to any restitution.

I answer. 1° He who promotes an unworthy person — both the promoter and the one promoted are held to restitute to the Church all the damages that come to it from this: the promoter, because he sins against commutative justice toward the Church, to which he is bound by his office to set over it worthy ministers; the one promoted, because he cooperated in the unjust action of the promoter, and from him immediately flow the evils of the Church.

I answer. 2° He who promotes a less worthy one, the more worthy being passed over, is also held, speaking of itself, by force of such promotion, to restitute to the Church; because toward it he violates commutative justice, since he is bound by his office, as was said, to set over it the best ministers. But it seems that the Church neither demands this restitution nor binds to it, in order to avoid perplexities: and thus the common sense [of theologians] apprehends it.

[The other opinion, no less probable, holds that the promoter is held to no restitution in this case. The reason is that ecclesiastical offices to which benefices are annexed were instituted primarily, indeed even solely, that the Church may be served by good ministers. Now, as is supposed, if the worthier are passed over, those chosen are worthy or good. Hence, if the good of the Church is not provided for in a better way, it is at least done sufficiently, and the intended end is essentially attained. Therefore ⁶ Moreover this question becomes purely speculative from what was said above, namely that the Church in the aforesaid case does not demand restitution.]

I answer. 3° He who promotes an unworthy or less worthy person, one more worthy being passed over, outside the concursus, is held to restitute nothing to the more worthy one who was passed over; because with respect to him he does not violate commutative justice, but only distributive justice. For the more worthy one has not strict right to the benefice, but only a right of aptitude and proportion.

I said, « outside the concursus; » because, by force of the announcement of the concursus, anyone capable acquires the right to compete, and he who is judged the worthier has, from an implicit pact, strict right to the benefice. Hence, if it is conferred on a less worthy one, injury is manifestly done to the worthier one; just as, when many fight in a public contest, injury would be done to the victor if the proposed prize were denied to him.

[You will ask 2° whether a worthy man, clearly knowing another to be worthier, sins by accepting the benefice, and is held to repair the loss to him.

I answer. The first opinion affirms it, because he himself, by accepting the benefice, cooperates in the unjust election to the damage of the other. The other opinion, which seems truer, says that he neither sins nor consequently is held to restitution.

The reason why he does not sin is given by D. Thomas, IIae IIae, q. 185, a. 3, c, namely that, on the part of the one choosing, « he who must choose someone as bishop... is not held to take the better one simply,... but the better one for the governance of the Church... On the part of him who is taken up, it is not required that he consider himself better than others; for that would be proud and presumptuous: but it suffices that he find nothing in himself by which it becomes illicit for him to take up the office of prelacy. » Furthermore, what is said of the episcopate must be said a fortiori of inferior benefices ⁷]

You will ask 3° whether what has been said thus far in the present article is to be extended to secular offices.

I answer, more commonly and more probably affirmatively; because these offices are likewise ordered primarily and principally to the common good of the state. Hence he who distributes them to the unworthy, or to the less worthy, sins against commutative justice toward the state, and against distributive justice, by acceptance of persons, toward the worthier.

You will say: He who holds dominion over some thing, and can sell it, is not an acceptor of persons if he hands it over or sells it to whom he wills. Now the prince or the state holds dominion over secular offices, and can sell them. Therefore.

I answer: I distinguish the major. If that thing is so much its own property that it is not to be appropriated to the common utility of the state, I concede; if it is to be appropriated to the common utility of the state, as public offices are, I deny. — To the minor ⁸ Indeed, speaking absolutely and from the nature of the thing, secular offices can be sold; because the dignity, the ample stipend, the occasion of gain, and similar things annexed to these offices are assessable in price. But they must be sold to the worthier and for a moderate price, lest poor but more suitable men be shut out from them, and lest those who buy at an immoderate price practice rapine and extortion to keep themselves whole. And because they are accustomed to be sold indiscriminately to the higher bidders and at an immoderate price, without regard to greater or lesser unworthiness or worthiness, therefore it is not expedient that they be sold.

You will ask 4° what qualities are necessary for duly obtaining benefices.

I answer. The first is probity of life. The second is learning, which must be such as the office annexed to the benefice requires. The third is legitimate age, namely for the episcopate, the completed thirtieth year; for benefices having the care of souls, the completed twenty-fourth year; for a canonry of a cathedral church that age is required that the one receiving the benefice may be able within a year to receive the order annexed to that benefice; for other canonries and any simple benefices, the begun fourteenth year. The fourth, legitimate title, without which, or without a dispensation, the conferral is void. The fifth, clerical tonsure. The sixth, celibacy, so that a conferral made to a married man is null. The seventh is immunity from major excommunication, suspension, interdict, and irregularity. The eighth is immunity from heresy in oneself and in one's parents up to the second generation according to the paternal line, and up to the first according to the maternal line. The ninth is a determined intention of taking up the office annexed to the benefice, or, if none be annexed, of persevering in the clerical state. Hence he sins mortally who accepts a benefice with the mind of enjoying its fruits until, for example, he has finished his studies, or found a suitable wife, intending afterwards to resign it; and if it be a parochial benefice, he is held to restitute the fruits received. The last condition is that another benefice not be conferred on one who already has one without cause. Hence

You will ask 5° whether it is lawful to possess several benefices at once.

I answer: that it is illicit by natural and positive law ⁹, except in certain cases to be assigned below.

By natural law; because for one man to hold several benefices at once contains in itself several disorders. First, the Church is deprived of a number of ministers and their service, since it is not possible for one man to serve several churches, and then prebends were established as it were stipends for those ministering there. Secondly, there follows a diminution of divine worship, while one man is instituted in place of many; for he who holds several prebends does not recite the hours, sing, or celebrate Mass more often, etc. Thirdly, there follows the frustration of the will of the founders, who contributed something to this church precisely so that, according to the number of benefices, there would be a number of beneficiaries ministering to God there. Fourthly, there follows inequality, while one man abounds in several benefices, and others equally or perhaps more suitable cannot obtain even one. Add that plurality of benefices is a foment of ambition, avarice, gluttony, lust, and many other vices.

By positive law. Cap. Sanctorum, dist. 70; cap. Clericis and cap. Clericum, causa 21, q. 1. Which ancient law the Tridentine confirms and renews, sess. xxiv, cap. 17 de Reform., in these words: « The holy synod... commands by the present decree that hereafter only one ecclesiastical benefice be conferred on each man, which indeed should suffice for his honorable support for life; nevertheless another simple one sufficient may be conferred on the same man, provided neither requires personal residence. »

I said, « except in certain cases. » The first is the one assigned by the Tridentine: if one benefice does not suffice for the honorable support of the beneficiary and his dependents in need.

The second. A dignity, for example a deanship or provostship, can be held together with a canonry in the same church. Thus declared the Congregation of the Council of Trent, 13 January 1594, as Gallemart testifies, on cap. 17 cited. And rightly; for these dignities

¹⁰ are more fittingly, and perhaps according to the intention of the founders, conferred on one man from the bosom [of the chapter].

The third is, if a parish church is legitimately annexed to a canonry, because a benefice perpetually annexed to another is reckoned as one with it.

The fourth is the greater utility or necessity of the Church ¹¹, as if someone on account of eminent learning or virtue could profit the Church more absent than another present, or by reason of power and authority could more effectively defend the Church against heretics or others; for this reason the supreme Pontiffs often dispense with the princes of Germany, that they may hold several bishoprics at once. In this last case the dispensation of the Pontiff is required, who alone can dispense in the law of the universal Church. More on plural benefices, when we treat of Religious.

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 ¹, « 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 ²: « 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.

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 ³. 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 ⁴.

In this conflict of opinions, recourse seems to be had to the practical rule proposed by Cardinal De Lugo ⁵: « 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 ⁶, Vogler ⁷, Scavini ⁸, Rousselot ⁹.

Cardinal Gousset, although he generally stands for the obligation, recommends the same prudence toward penitents ¹⁰.

St. Alphonsus relates this rule and seems to approve it ¹¹]

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 ¹², 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 ¹³, 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.

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 ¹⁴

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.

The Council of Vienne, under Clement V, at which with three hundred Bishops the King of France was present, orders the Ordinaries of places to publish the sentences of excommunication and interdict pronounced against those who exact taxes from ecclesiastical persons, for those things which they have not carried, or caused to be carried, for the purpose of trade.

In the bull In Coena Domini: « All are excommunicated who, without the special and express license of the supreme Pontiff, impose collections, tithes, tallages, prestations, or other burdens on ecclesiastical persons, or on their goods, whether of churches or monasteries, or exact what is imposed, or receive from those giving spontaneously, or cooperate in these acts in any way whatsoever. » What is said of those giving spontaneously is understood when the collector receives from one who gives before being asked, because it has been imposed.

The Council of Trent, sess. XXV, cap. 20 de Reform., commands that all the canons and decretes in favor of ecclesiastical persons be observed exactly by all, and it renews them by the present decree.

[Thus the Council of Trent, at the place cited: « Since the holy Synod desires that ecclesiastical discipline be not only restored in the Christian people, but also preserved perpetually safe and sound against every impediment, besides those things which it has decreed concerning ecclesiastical persons, it judged that secular princes also should be admonished of their office, trusting that they, as Catholics, whom God willed to be protectors of the holy faith and of the Church, will not only grant that their right be restored to the Church, but... will not permit officials or inferior magistrates by any greed or any thoughtlessness to violate the immunity of the Church and of ecclesiastical persons established by God's ordinance and canonical sanctions... It therefore decrees and commands that the sacred canons and general councils, as well as the other apostolic sanctions published in favor of ecclesiastical persons, of ecclesiastical liberty, and against the violators thereof, all of which it also renews by the present decree, must be observed exactly by all. »]

Among the canonical sanctions here alluded to, the constitutions of Alexander IV and Boniface VIII hold the principal place, related in 6° Decretal., lib. III, tit. 23, de Immunit., cap. 1° Quia nonnulli, and 3° Clericis, where are reproved and punished with excommunication « the excesses of laymen who imposed collections, tallages, and burdens on clerics, and the excesses of clerics who consented to such things. »

To this point belongs Rom., XIII, 7: Render to all their dues: tribute to whom tribute, etc. D. Thomas, lect. 2, says: « From this debt, however, clerics are free, by privilege of princes, which indeed has a natural equity. Hence even among the gentiles those were free from taxes who were occupied with divine things. For it is read, Gen., XLVII, 20-22, that Joseph subjected to Pharaoh the whole land of Egypt, except the land of the priests, which had been given to them by the king, to whom also prescribed rations were supplied from the public storehouses. And further on it is said that throughout the whole land of Egypt a fifth part is paid, except the priestly land, which was free from this condition. This, however, is equitable for this reason, that, as kings have care for the public good in temporal goods, so the ministers of God in spiritual things, and thus by ministering to God in spiritual things they recompense the king for laboring for their peace. »

[It must be concluded, therefore, that the precept of the Apostle, Rom.,

XIII, 5 et 6: Be subject, not only for wrath, but also for conscience' sake; for therefore also tribute is paid — is not to be understood of the tax laws which affect ecclesiastical goods, because, according to the declaration of the Council of Trent related above, « they resist God's ordinance and the canonical sanctions. » Hence taxes of every kind, whether direct or indirect, with which ecclesiastical possessions are now burdened by force of civil law, must not be paid for conscience' sake, but only for fear or necessity.]

I said, « regularly speaking, » because there are certain excepted cases.

The first is, if clerics engage in trade, as the same Boniface decrees, cap. Quanguam cited.

The second is, when the resources of laymen do not suffice for succoring the public necessity. But that a tax be exacted from clerics in this case, the consent of Parliament is required, as is clear from the cited cap. Adversus, Decretal., lib. III, tit. 23, de Immunit., and from the Bull of the Cenae. But if the matter brook no delay, the consent of the bishop and clergy seems sufficient for secular clerics and non-exempt regulars: for exempt ones, however, the consent of their prelates is required.

The third case is, according to the canonists and theologians, when the tax is equally primarily and equally immediately for the utility of clerics and laymen, as for repairing an embankment lest the river flood the fields of clerics and laymen, or for expelling robbers who ravage the territory in which clerics have many possessions; for this seems altogether consonant with natural equity. Otherwise, if the contribution pertains immediately and primarily to the community, and only secondarily and consequently to clerics, inasmuch as they are members of the community, as taxes pertaining to the stipends of the prince, the waging of war, the repair of castles and walls of the city, etc. So Sylvester, v° Immunitas, n. 2, with Panormitanus and others, and after him Lessius, lib. II, c. 33, dub. 3.

The fourth case is, if some possession had some burden annexed to it perpetual and unalterable before it came to the church; the church is held to it, because the thing passes with its burden. C. Cum non sit, Decretal., lib. III, tit. 30, de Decimis, and c. Pastoralis, ibid., tit. 31, de Regul. See the same Sylvester, ibid. It cannot, however, be burdened with new burdens.

[You will ask 6° whether the patrimonial goods of clerics are also immune from taxes.

I answer: that there is a twofold opinion. The first affirms: 1° because Boniface VIII, cap. Quanguam, de Censibus, in 6°, lib. III, tit. 20, renews the constitution of Alexander IV, « by which he decreed that churches and ecclesiastical persons are not at all held to road-dues and passage-dues, nor to exhibiting or paying such for their own goods, which they do not carry or cause to be carried or send for the purpose of trade, » notwithstanding contrary custom of whomsoever, which should rather be called corruption. Where the proper goods of ecclesiastics, that is, their patrimonial goods, are declared exempt from taxes. 2° Because in the bull Coenae those are excommunicated who impose collections, etc., « on ecclesiastical persons or on their goods, whether of churches or monasteries. » Where the goods of them or of clerics are distinguished from the goods of churches, and the same immunity is attributed to goods of this kind.

— The other opinion denies: 1° because the patrimonial goods of clerics do not pertain to the dominion of the church, and therefore are subject to the higher dominion of civil society. 2° Because usage, the Church not contradicting it in these later times, prevailed, so that these goods were regarded as secular and burdened with the same burdens. This latter opinion seems sufficiently grounded, so that it can now be held as true.]

Lest this volume grow beyond measure, the continuation of the present treatise is deferred to the following.