Summa summae S. Thomae, Tomus III

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.