The Moral Obligation of Paying Just Taxes - M. Crowe

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THE CATHOLIC UNIVERSITY OF AMERICA

STUDIES IN SACRED THEOLOGY
No. 84
THE MORAL OBLIGATION OF

PAYING JUST TAXES
BY THE
Rev. Martin T. Crowe, C.SS.R., S.T.L.
A DISSERTATION
Submitted to the Faculty of the School of Sacred Theology

of the Catholic University of America in Partial
Fulfillment of the Requirements for the
Degree of Doctor of Sacred Theology
THE CATHOLIC UNIVERSITY OF AMERICA PRESS

WASHINGTON, D. C.
1944
r
ilmprimi Potest:
Michael J. Gear1n, C.SS.R., J.C.D.,
Superior Provincialis.
Brooklynii, die 20 mail, 1944.
Xiljtl ©bstat:
Franciscus J. Connell, C.SS.R., S.T.D.,
Censor Deputatus.
Washingtonii, D. C, die 31 mail, 1944.
^Imprimatur:
fi& Michael J. Curley, D.D.,
Archiepiscopus Ballimoriensis-Washingtoniensis.
Baltimorae, die 31 mail, 1944.
COPYRIGHT, 1944
THE CATHOLIC UNIVERSITY OF AMERICA PRESS
Printed by
The Paul1st Press
New York 19, N. Y.
37?
H5
TO
OUR MOTHER OF GOOD COUNSEL
I
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Exch.
Library
Catholic Univ.
ol America
anr « 1945
TABLE OF CONTENTS
PAGE
INTRODUCTION ix
CHAPTER I
NOTION AND DIVISION OF TAXES 1

I. The Nature and Kinds of Public Revenue 1
Gratuitous Revenue 1
Non-gratuitous Revenue 1
Contractual Revenue 5
Non-contractual Revenue 6
(a) The Penal Power 6
(b) The Taxing Power 6
1. Fees 7
2. Special Assessments 9
3. Taxes 10
II. Nature of Taxes 12
1. Notion 12
2. Division 15
III. Conditions for a Just Tax 22

1. Requisite Authority 22
2. Just Cause 23
3. Just Distribution of the Tax Burden 24
CHAPTER II
VARIOUS OPINIONS CONCERNING THE OBLIGA

TION IMPOSED BY A JUST TAX 27
I. The Opinion that All Tax Laws Are Merely
Penal 28
vi Contents
PAGE
II. The Opinion that All Tax Laws Oblige in Virtue
of Commutative Justice 42
III. The Opinion that Direct Taxes Must Be Paid in

Virtue of Legal Justice While the Obligation
of Paying Indirect Taxes Is Merely Penal.... 72
IV. The Opinion that All Tax Laws Bind in Virtue

of Legal Justice 77
CHAPTER III
ANALYSIS OF THE VARIOUS VIEWS 83

I. The Purely Penal Law Theory 83
1. History of the Theory 83
2. Possibility of the Purely Penal Law Theory 94
3. Criticism of the Theory that All Tax Laws Are
Purely Penal Laws 103
Praenotanda 103
Thesis: The Theory That All Tax Laws Are Purely
Penal Laws Has Little Probability Either from
Intrinsic or from Extrinsic Arguments 104
Proof: A. Analysis of the Intrinsic Arguments 104
1. The Intention of the Legislator 104
2. Custom 106
3. Miscellaneous Arguments 108
Proof: B. Analysis of the Extrinsic Argument 110
II. The Theory that All Taxes Are Due in Virtue of
Commutative Justice 113
1. Notion of Commutative Justice 113
A. The Termini of the Relation (governed by
Commutative Justice) 113
B. The Object of the Relation 114
C. The Mean or Norm of the Relation 116
Contents vii
PAGE
2. Criticism of the Theory that Tax Laws Bind in
Virtue of Commutative Justice 119
Thesis: The Theory that Tax Laws Bind in Virtue
of Commutative Justice Is Only Doubtfully
Probable 1 19
Proof: A. Analysis of the Intrinsic Arguments 119
1. The Contract Theory 119
(a) The Subject of the Proposed Contract 122
(b) The Matter of the Proposed Contract 124
(c) The Form of the Contract 126
2. The Argument Based on the Principle that
Expenses Legitimately Incurred in the
Name of Another, Must Be Borne by
that Other - 129
3. The Argument from the Right of Eminent
Domain 133
Proof: B. Analysis of the Extrinsic Arguments.... 136
1. The Argument from Scripture 136
2. The Authority of Theologians 136
III. The Opinion that Laws Imposing Indirect Taxes

Are Purely Penal While Laws Imposing
Direct Taxes Bind in Virtue of Legal Justice 138
IV. The Opinion that All Taxes Bind in Virtue of

Legal Justice 140
1. The Meaning of Legal Justice 140
2. History of the Theory 148
3. Criticism of the Theory that All Tax Laws Bind
in Virtue of Legal Justice 151
Thesis: The Civic Duty of Paying Taxes Is Cer
tainly an Obligation in Legal Justice, Most Prob
ably to the Exclusion of Commutative Justice,
the Immediate Obligation Flowing Probably
from Piety , ,. ., 151
viii Contents
PAGE
Praenotanda 151
(1) Tax Laws Bind in Conscience to the Act
Prescribed 151
(2) The Obligation of Paying Taxes Is Medi
ately an Obligation of Legal Justice.... 157
(3) The Immediate Obligation Most Probably
Does Not Flow from Commutative
Justice 158
(4) The Immediate Obligation of Paying Taxes
Is Probably an Obligation of Piety 160
CONCLUSION 164
BIBLIOGRAPHY 165
ALPHABETICAL INDEX 171
BIOGRAPHICAL NOTE 177

INTRODUCTION
The morality of tax-evasion has been a problem of perennial in

terest among both theologians and laymen. The recent increase in
the number of income tax-payers, has brought the problem to the
confessionals of even the poorest country chapels. It is the purpose
of this dissertation to aid in the solution of that problem.
In determining the morality of tax-evasion, as in determining the
morality of any violation of law, there are two questions to be an
swered: (1) Is the law violated a just law? (2) If the law is just,
to what extent and under what virtue does it bind in conscience?
This dissertation does not attempt a practical solution of the first
question. In other words, the justice or injustice of particular tax
laws is not discussed. The usual general norms for determining the
justice of tax laws are given, but the application of these norms is
left to the judgment of those who have more knowledge of the prac
tical details of taxation than has the writer. The investigation under
taken and the conclusions reached in this dissertation concern only
the second question. The dissertation is, therefore, an attempt to
determine the virtue which commands the paying of just taxes.
The writer takes this opportunity to express his gratitude to his
religious Superiors for the opportunity of pursuing graduate studies.
He thanks, also, the Faculty of the School of Sacred Theology of the
Catholic University, and especially the Reverend Doctor Connell,
C.SS.R., and the Reverend Doctor Eugene M. Burke, C.S.P.
'
CHAPTER I
NOTION AND DIVISION OF TAXES
Taxes are a form of public revenue. In order therefore, to un

derstand the nature of taxes, it is necessary to consider first the
nature and kinds of public revenue.
I. The Nature and Kinds of Public Revenue

Public revenues are defined as: "Those governmental receipts
which result in an increase in the aggregate assets of a government
without causing an increase in its liabilities." * This definition ex
cludes such public receipts as the proceeds from the sale of public
property, which represent merely a conversion of public assets; it
also excludes the proceeds from public loans, for example, war bond
loans, which result in an increase in the public liabilities. All other
public receipts are included under the term public revenue.
The first and most general division of public revenue is into
gratuitous revenue and non-gratuitous revenue.
Gratuitous revenue. Gratuitous revenue comprises all gifts made
to the state. Since gratuitous contributions have little in common
with taxes and are of minor importance in the financing of states,
there is no need to discuss this class of public revenue.
Non-gratuitous revenue. Any contribution made to the state
which is not an outright gift, is classed as part of the non-gratuitous
revenue of the state. It is evident to everyone that there are various
kinds of non-gratuitous revenue, but any attempt to classify non-
gratuitous revenue is complicated by the many factors that must be
considered. It is further complicated by the fact that these factors
or elements may be present singly or in various combinations and
may exercise varying degrees of influence. The factors may relate
either to the state to whom the payment is made, or to the individual
1 Patterson-Scholz, Economic Principles of Modern Life (New York, 1931),

p. 283.
1
2 The Moral Obligation of Paying Just Taxes
who makes the payment. Before attempting to classify the non-

gratuitous revenue, a brief analysis of the elements involved will be
given.
(1) On the part of the state, (a) There may be a demand made
by the state or there may be no demand.2 When a demand is
made, it may be either absolute or relative. For example, the demand
is absolute in a universal poll-tax, i. e., a per capita tax on every indi
vidual in the state. In other taxes, the demand may be more or
less relative. Thus the demand laid on a person by an income tax
law is relative to the existence of an income above a certain amount
per annum. In other words, the state makes no demand on this or
that person unless he has an income on at least the lowest income
level taxed. An example of an extremely relative demand would be
a tax on luxuries, such as expensive jewelry and furs. In this matter
of public revenue, the element of demand on the part of the state
increases in proportion to the necessity under which the person lies
of obtaining the thing which can be obtained lawfully only by con
tributing something to the state. Thus there is more element of
demand in the law requiring the payment of a fee for a marriage
license than there is in the law requiring the payment of a fee for
a hunting or fishing license.
Sometimes a contribution is made to the state not because of a
demand but because of the desire of the individual to obtain some
thing which may be obtained cheaper from the state than elsewhere.
Contributions of this type can occur only when the state is engaged
in competitive enterprises such as publishing books, printing, sup
plying public utilities, etc. If the state has exclusive control of an
enterprise, such as the water supply, there is a certain necessity of
patronizing the state-owned enterprise and hence a contribution in
this case would contain an element of demand. But if the state does
not exercise monopolistic control of the enterprise, the citizen is
perfectly free to patronize either the state-controlled enterprise or
one of the state's competitors.
(b) Another element on the part of the state that must be con-
2 By demand here is meant a necessity imposed by law on the citizen of

making a contribution to the state.
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Notion and Division of Taxes 3
sidered in classifying the non-gratuitous revenue, is the reason why

the state demands the contribution at all. The reason for demand
ing the contribution may be either the need of money to carry on
the business of the state, or it may be the desire to regulate certain
factors in the life of the citizens.
The need of money as a motive, requires no further explanation.
Modern states simply could not function without a great and con
stant supply of money.
The second reason why the state sometimes demands contribu
tions from the citizens has only recently (i. e., with the growth of
the modern industrial and imperial state) come to the fore. In gen
eral, regulation is denned as an attempt on the part of the state to
control the production, distribution, and consumption of commodi
ties, and thus to control the distribution of wealth and to protect
the general welfare of the nation. While there is no denying the
fact that there is need of government regulation, there is much dis
pute about the proper limits to which such regulation may be ex
tended rightfully. The tendency of late has been to extend the
sphere of regulatory action on the part of the state. The debate
concerning the extent of the proper sphere of the regulatory powers
of the state does not concern this present study. It will be sufficient
to note that regulation in general is one of the functions of the state
and to point out that theoretically one of the simplest means the
state uses to bring about this regulation, is the imposition of high
tariffs and taxes that render the sale of foreign goods unprofitable
and thus encourage the sale of domestic goods.
(c) The final element on the part of the state that must be con
sidered, is the obligation to which the contribution gives rise on the
part of the state toward the individual who makes the contribution.
Sometimes, as in the case of a fee pafd for a license, the state is
obliged in commutative justice to issue the license or return the
money contributed.3 Sometimes, as in the case of the ordinary in
come tax, there is no special obligation on the part of the state to
provide the particular individual with anything that becomes his
personal property.
3 The individual who made the contribution may, of course, forfeit his
right to receive the license by some unlawful action.
(2) On the part of the individual making the contribution,

(a) The payment made by the individual may have some immediate
and essential connection with the particular benefit of the one who
makes the payment. Thus when the state or city government con
trols the water supply, a person who pays his water bill has a right
in strict justice to receive the equivalent in water supply. In this
case the citizen receives something that becomes his own personal
property. The thing received is capable of measurement in terms of
money. But sometimes a contribution to the state gives the con
tributor a strict right to receive something that cannot be measured
accurately in terms of money. For example, if a person pays two
dollars for an automobile license, the state is bound to give that
man a license and to allow him to drive his car. The possession of
the license is worth something, but the value of two dollars is arbi
trarily fixed by the state. The real value of a license plate is some
thing that cannot be measured accurately in terms of money. In
fact a license may be worth much more to a man who uses his car
for business purposes than to a man who uses it only for pleasure.
(b) Sometimes the contribution may give the citizen only a right
to share in the general good of the community. Thus, if a person
pays an assessment for paving the street in front of his property,
he is entitled to some benefit but it cannot be said that the citizen
owns the street. And yet there is greater reason that the contributor
should receive benefit from the paving of the street for which he was
assessed than there is that the same citizen should receive benefit
from the income tax he pays to the federal government. The reason
why he was assessed for the street was the presumption that the
paving of the street in front of his property would bring him a benefit
that it would not bring to a citizen living a thousand miles away.
A consideration of all these elements that may enter into the
non-gratuitous revenue of the state make it evident that any attempt
to classify non-gratuitous revenue will be difficult and any results of
classification apt to be arbitrary. However, there is one element
that is sometimes present on the part of the state and which has
its counterpart on the part of the citizen, that will furnish the basis
of the first division. This is the element of strict obligation, i. e.,
an obligation in commutative justice on the part of the state to give
the particular contributor some particular thing. Correlative to

this obligation, is the right in commutative justice on the part of
the citizen to receive something from the state. This correlative
obligation and right is evidently the result of a contract. Hence
the first division of non-gratuitous revenue will be into contractual
and non-contractual revenue.
Contractual revenue. It has been noted that some contributions
give the contributor a strict right to receive something that is meas
urable in terms of money, for instance, a certain supply of water.
Other contributions give the contributor a strict right to receive
something that cannot be measured in terms of money, for example,
an automobile license. For the purposes of this division, contractual
revenue is limited to those contracts alone in which the contributor
receives something that is subject to fairly exact measurement and
furthermore, to those contracts in which the contributor has a strict
right to receive the exact equivalent of the amount of money he
contributed. This latter restriction is necessary because there are
several possibilities regarding the amount the state could charge
for its services when the state assumes monopolistic control of some
business. For example, if the state assumes control of the water
supply and it costs the government one dollar to supply a thousand
gallons of water, the government could charge the citizens exactly
one dollar per thousand gallons, or it could charge less than one
dollar, or it could charge more than one dollar. If the government
decided to charge a dollar or less, the receipts could not be reckoned
as public revenue since the transaction would not increase the assets
of the government. If it charged more than a dollar per thousand
gallons, the government might be acting on one of two principles:
(1) Since the state has a right to realize some profit on its business
transactions, it could charge whatever would be considered a just
price if the business were open to competition or were in the hands
of private individuals. Only revenue of this type is called con
tractual revenue. (2) Since the state has the right to impose taxes,
it could charge more than the just price, in which case the excess
of the just price would be simply a sales tax. The revenue brought
in by this excess charge could not be called contractual revenue.
The exclusion of this type of revenue is easily understood. But the
exclusion of revenue derived from issuing licenses, etc., mentioned

above,4 may seem arbitrary and illogical since these transactions
are real contracts. The limitation can be justified on the ground
that the contracts concerned, such as the buying and selling of
licenses, etc., exist solely because of the prescription of the law
The ultimate cause of the revenue in these contracts is the law But
in other contracts, such as the selling of utilities or other products
profit would exist independently of the law. The law merely directs'
the flow of this profit into the hands of the state. By contractual
revenue, therefore, is meant profit revenue.
Non-contractual revenue. There are two powers vested in the
state in virtue of which it may raise non-contractual revenue. These
powers are, the penal power and the taxing power.
(a) The penal power. In virtue of the penal power, any au
thority having the right to make laws may also inflict penalties on
those who violate the laws. The precise nature and purpose of pen
alties need not be discussed. It will be sufficient to state the fact
that penalties do exist and that very frequently they take the form
of fines. There is no danger of confusing fines with any other kind
of payment. The basis of a fine is neither the need of the state nor
the ability of the individual to pay but solely the fact that a law
has been broken. The income derived from the exercise of the penal
power varies, but in most modern states the amount paid in fines
forms a considerable percentage of the total annual income.
(b) The taxing power. God has endowed man with faculties
which call for life in organized society in order to attain their fullest
development. The state therefore, is not the result of chance or of
mere convention; it is an integral part of God's design in creating
man. It is a necessary society. Without the state man could not
reach the intellectual and cultural stature ordained for him by God.
Hence the purpose of the state is to provide man with the opportu
nities necessary to develop his faculties to the degree intended by
the Creator. From this it follows that the state has the obligation
of maintaining and promoting the welfare of its members. And
since it has this obligation, it must have also the right to the means
* Supra, p. 3.
necessary in order to attain this end. If the services of the citizens

are necessary in order to protect the community from enemies with
out, or in order to secure peace and good order within, the state may
demand these services. If money is needed to set up and operate
the machinery of government, to feed and supply armies, or to pro
vide some other public service, the state has a right to demand this
money.
The sovereign right vested in every state whereby it may requi
sition the services and goods of its citizens for the public good is
called the taxing power. The term is used here in its broadest
meaning. As defined, it includes not only the power in virtue of
which men are obliged to contribute money and other possessions;
it extends also to the power or right whereby men may be called
upon to serve their country, to fight for it, or even to die for it.
In its ordinary and more restricted meaning, the taxing power is
used to denote only the power to lexy taxes, i. e., the right of the
state to demand money. The term will be used in this restricted
sense in the present discussion.
"The taxing power may manifest itself in three forms, known
respectively as fees, special assessments and taxes." 5 Each of these
three classes will be discussed in turn.
1. Fees. It has been noted that the government may raise money
by selling commodities to its citizens; it has also been noted that
sometimes the government will charge less for the commodities than
it cost to produce them. Seligman calls this type of charge a "fee."
Exception will not be taken of his use of the term "fee," but as was
pointed out above,6 such a charge can no longer be classed as part
of governmental revenue since the government does not gain in
assets but rather loses. It is in fact left with a deficit that must
be made up by some form of genuine revenue.7
In addition to commodities, the government may sell services
SE. R. Seligman, Essays in Taxation (New York, 1931), p. 406.

6 Supra, p. 5.
7 For the sake of clarity it might be better to coin a new term for these
less-than-cost charges. However, since the economists have not done so, it will
be necessary to call them fees, but it must be remembered that they are not
part of public revenue.
and privileges in the form of licenses, franchises, permits, etc. This

charge too, is called a fee. Sometimes the fee is merely a nominal
charge; sometimes, as in the case of transportation franchises, the
charge is considerable. In nearly all cases the cost to the govern
ment is negligible; it amounts at most to the cost of the clerical
work necessary to issue the license or franchise and to record the
various payments.
The types of businesses or other activities taxed in this way
vary in different states. Thus, certain businesses may be undertaken
in one state with no special permit or franchise; the same type of
business is illegal in another state unless a franchise is obtained.
Whenever a charge is made, it is made on the assumption that the
common good would suffer if these undertakings were not controlled
to some extent by the state.
Besides this element of common good, every fee contains the
element of special benefit to the fee-payer. By this is meant that
one who pays a fee receives some particular benefit in return. The
benefit may amount only to the privilege of carrying on a certain
type of business. But this privilege is a benefit and it is the result
of the fee paid.
The amount charged by the government in the various types of
fees will depend on the two elements concerned, namely, the com
mon good and the special benefit accruing to the fee-payer.
The common good may influence the amount of the fee in one
of two ways: (1) If the only consideration is regulation, i.e., con
trol of a certain business or individual act placed by the citizens,
the price of the fee will be governed by the amount of control
needed. Thus, the common good requires that all marriages be
registered. This is accomplished by demanding a license at a
mere nominal charge. (2) If the purpose of the fee is to raise money
to be expended for the common good, the amount of the fee will be
greater than it would be if regulation were the only purpose.
The special benefit of the fee-payer is sometimes an important
factor in determining the amount of a fee but the influence of this
factor is more relative than absolute. For example, a license for a
truck costs more than a license for a private automobile. The rea
son for this difference is the assumption that a truck license brings
more special benefit to the fee-payer than a license for a private

automobile would bring. The amount of the difference in cost is
necessarily rather arbitrary since no one can determine very ac
curately how much it is worth to operate either a truck or a private
automobile.8
The nature of fees will be more clearly understood after special
assessments and taxes have been discussed.
2. Special assessments. Seligman defines a special assessment
as: "A compulsory contribution levied in proportion to the special
benefits derived, to defray the cost of a specific improvement to
property undertaken in the public interest." •
Special assessments have played an important role in the financ
ing of American cities. In some cases the revenue from this source
exceeded all other receipts.10 For many years, American courts
tried to justify special assessments under the power of eminent do
main or under the police power. But in 1851 it was definitely de
cided that special assessments were a legitimate exercise of the
taxing power.11
The characteristic note of a special assessment is the specific
end for which the tax is imposed and which must in justice be car
ried out. For example, when a city proposes to pave a new street,
the cost is first estimated and then distributed among those who
own property which will be improved by the street. Methods of
apportioning the cost among the citizens concerned have varied.
8 Seligman maintains that special benefit in fees is susceptible of accurate

measurement and is the actual basis of the amount charged. While there is no
doubt that special benefit is present, it is highly questionable whether the bene
fit in fees can ever be accurately measured, and it is certain that the amount
charged does not represent the absolute amount of benefit. If the charges were
really proportionate to the benefits conferred, it ought to follow that the same
fee be imposed whenever like conditions exist. But such is not the case. One
state may charge five dollars for a license which costs only two dollars in an
adjacent state where the same conditions prevail. Cf. Seligman, Essays in
Taxation, p. 407.
9 Ibid., p. 414.
10 In Chicago in 1890, special assessments yielded $8,790,443, an amount
larger than that raised by other forms of taxation.
« People vs. Brooklyn, 4 N. Y. 419.
One city may base the division on the area of the land to be assessed ;
another may base it on the value of the land. Either method is an
attempt to divide the cost fairly among those people whose property
will benefit by the proposed improvement. Once the money has
been collected it cannot be used for any other purpose than the one
originally proposed. If the project is not carried out, the citizens
have the right to collect their money from the state.
As has been seen,12 the right to get the money back if the state
does not fulfill its duty is present also in contractual revenue and in
fees. But contractual revenue, fees and special assessments are not
to be confused on that account. In special assessments, the thing
paid for does not become the property of the ones who pay the
assessment—it remains state property. In contractual revenue and
in fees, those who pay receive something that becomes their own by
reason of the payment. These two latter classes differ because in
contractual payments the thing received is susceptible of exact meas
urement in terms of money, whereas in fees, the privilege received
cannot be accurately measured in terms of money.
3. Taxes. A detailed analysis of the notion and division of
taxes will be reserved for the following section. Here, it will simply
be noted that taxes are a part of public revenue and are distinct
from fees and special assessments. All three forms are species of
taxation in the wider sense and as such are easily distinguished from
contractual revenue on the one hand and from fines on the other.
What is common to the three classes is that they are compulsory
contributions levied for the support of the government or to defray
the expenses incurred for public purposes in general. Taxes differ
from fees and special assessments in that the element of special
benefit in taxes is entirely subordinate. By this is meant that a
tax is intended primarily for the common good and any particular
good that may result to a certain individual is merely an incidental
result, whereas in both fees and special assessments, there is an
intended particular good accruing to the individual. This specific
note, i. e., direction to the common good as to the primary end, is
present even in special taxes, such as gasoline taxes. At first sight,
12 Supra, p. 5 for contractual revenue ; p. 7 for fees.
^
those who pay a gasoline tax seem to derive an intended benefit

not shared by those who do not pay. Those who pay the tax on
gasoline may enjoy the benefit of good roads for either business or
pleasure. This does not seem to differ much from a special assess
ment imposed for the purpose of paying for a new street. Those
who pay the special assessment get the benefit of the new street.
But there is a vast difference between a special assessment and a
special tax. In the case of a special assessment, a new road must
be constructed in a predetermined place; in the case of a gasoline
tax, the road may be built anywhere within the boundaries of the
taxing authority. The difference may be expressed thus: a gasoline
tax calls for a road to be constructed or improved in some place; a
special assessment calls for a road to be constructed or improved in
this particular place.
The difference between a tax and a fee is equally clear. The
basis of taxation is the faculty or ability of the tax-payer to pay
without taking into account whether the expenditure of the tax
money will benefit the tax-payer or not; the basis of a fee is par
tially, at least, the benefit which will accrue to the fee-payer. In
the case of a fee, the particular advantage or benefit is the very
reason for the payment; in the case of a tax, the particular advan
tage, if it exists at all, is simply the incidental result of state action.13
In summing up the discussion on the non-contractual revenue
of the state, the following definitions, taken verbatim from Seligman,
will be of value:
(a) A fee is a payment to defray the cost of each recurring serv

ice undertaken by the government primarily in the public
interest, but conferring a measurable" special benefit on
the fee-payer.
(b) A special assessment is a payment made once and for all to
defray the cost of a specific improvement to property under
taken in the public interest, and levied by the government
in proportion to the particular benefit accruing to the prop
erty owner.
13 Cf. Seligman, Essays in Taxation, p. 408.

14 This definition is valid only if the meaning of "measurable" is restricted
according to the remarks on p. 9, above.
r
(c) A tax is a compulsory contribution from the person to the

government to defray expenses incurred in the common
interest of all without reference to special benefits con
ferred.15
The results of the distinctions made in the preceding pages may

be summed up in the following schema:
PUBLIC REVENUE
Gratuitous Non-gratuitous
Contractual Non-contractual
Penal power Taxing power
Fees Special Assessments Taxes
II. Nature of Taxes

1. Notion. One of the most prolific sources of disagreement in
the treatment of taxes by theologians is the looseness of their con
cept of a tax. This looseness or haziness is due in great part to their
failure to appreciate the distinctions drawn in the preceding section.
It has been pointed out that an accurate definition of taxes must
clearly isolate taxes from fees and special assessments. Since the
appearance of Seligman's writings, practically all the economists
agree on this point. They disagree on another point, namely,
whether the strict notion of a tax includes those charges which are
levied primarily for the purpose of regulation, i. e., of foreign trade,
of domestic prices, of the distribution of wealth, of the consumption
of spirituous liquors, etc.
The different opinions on the matter reflect various schools of
thought regarding the nature and limitations of the police power as
against the taxing power. The commonly accepted distinction be
tween these powers is that the former is for regulation, and the lat
ter for revenue. Some economists hold rigidly to the opinion that
15 Op. cit., p. 432.
y ^
an impost which looks to anything else but revenue, cannot be

called a tax.18 As Seligman points out, the only basis for this ex
treme view is the not too solid ground of legal expediency.17 In the
United States there exists an almost hopeless mass of fundamental
contradictions among the tax laws of the several states on many
important points. The laws of one state may by implication forbid
what the laws of another state expressly permit. Thus, the whole
system of liquor taxes is brought under the taxing power in some
states, but in others it must be put under the police power because
of certain constitutional restrictions of the taxing power. In both
cases the amount charged is substantially the same and produces the
same twofold effect, namely, revenue and regulation. Yet to call
the charge a tax in the latter states would render the levy unconsti
tutional.18 This is not a sound reason for excluding such charges
from the scientific notion of a tax. As.Seligman says: "While it may
be expedient from the legal point of view to distinguish between
the police power and the taxing power, ruling that one is for regu
lation and the other for revenue, . . . the distinction from the eco
nomic and fiscal standpoint is wholly unnecessary. A tax is no less
a tax because its purpose is regulation or destruction; and a fee or
payment for regulation brings in just as much revenue as a precisely
identical fee imposed primarily for revenue." 1•
The definition of taxes must then be wide enough to include
charges that are made primarily for the purpose of regulation. In
this respect, the definition of Seligman himself quoted above, is
faulty.20 He gives as the purpose of a tax, "to defray the expenses
incurred in the common interests of all." This leaves no room for a
high impost duty whose purpose is to ruin foreign competition. The
same defect is found in the definitions of most moral theologians.
Thus Priimmer: "Taxes are money which the citizens must give by
18 Cf. D. A. Wells, The Theory and Practice of Taxation, p. 204 ff.

17 Essays in Taxation, p. 406.
18 For example, in Georgia, the liquor taxes were put under the taxing
power but in Texas they had to be put under the police power. Cf. Burch vs.
Savannah, 42 Ga. 596; 50 Texas 86.
20 Supra, p. 12.
civil law for the precise purpose of covering the public expenses of
the state." 21 Prummer makes the defect almost glaring by using
the words, "for the precise purpose." Merkelbach's definition is very
similar to Seligman's. He says: "Taxes are whatever the citizens
must pay to cover the common expenses of the state." 22 Damen
defines taxes as: "all those payments, especially of money which
the public authority obliges its subject to make to itself in order to
provide therewith for the good of the republic." 23 This definition
could be rectified somewhat by omitting the word "therewith." Lugo
is one of the few who seemed to have sensed that the purpose of
taxes might be wider than the mere raising of revenue. According
to him taxes are, "whatever the subjects or members of the state
must contribute for the common usefulness and for the public neces
sities." 24 It is clear from Lugo's explanation of the cause neces
sary for a just tax that he uses the term, "common usefulness" in
order to emphasize the fact that taxes may be raised not only for
things that are absolutely necessary for the common good but also
for things that are useful. Hence the assumption that he meant
anything else by the term is not justified. Nevertheless, his defini
tion does admit of an objective interpretation which would include
in the notion of a tax, customs, liquor taxes, etc., imposed for the
purpose of regulation.
The four theologians just quoted fail also to distinguish taxes
from fees and special assessments. This is evident from a compari
son of their definitions with the general definition of fees, special
assessments and taxes given by Seligman, who says that all three
forms are, "compulsory contributions levied for the support of the
government or to defray the expenses incurred for public purposes." 25
There is need then for an accurate definition of taxes. To fill
this need the following definition is suggested: A tax is a compul
21 D. Prummer, Manuale Theologiae M oralis (Friburg in Brisg., 1928), I,

n. 288.
22 B. Merkelbach, Summa Theologiae Moralis (Paris, 1938), II, n. 624.
23 J. Aertnys-C. Damen, Theologia Moralis (Turin, 1939), I, n. 827.
24 Joan. Card, de Lugo, De Iustitia et lure (Lyons, 1670), Disp. XXXVI, sec.
1, n. 1.
*\
sory contribution to the government, imposed in the common interest

of all, for the purpose of defraying the expenses incurred in carry
ing out the public functions, or imposed for the purpose of regula
tion, without reference to the special benefits conferred on the one
making the payment.
2. Division. Until comparatively modern times there has been
no attempt at a scientific classification of taxes. The earlier theolo
gians divided taxes into "tributa" and "vectigalia." 28 This division
is based on Roman law and was known to St. Paul.27 "Tributum" is
now generally translated as "tax," but the English word has a wider
meaning than the original Latin. In Roman law, "tributum" could
mean one of four things: a property tax levied according to the
value of the land; tithes demanded from conquered territories; a
ground rent; or a poll tax.28 "Vectigal" was usually applied to the
impost on goods transported for business purposes, but it also desig
nated the tax on slaves, on inheritance, and in some of the provinces
it was used in place of "tributum" to denote a ground rent.29 Some
moralists limit the meaning of "vectigal" to a tax imposed in con
sideration of some transfer of goods and include all other taxes
under the term "tributum." Others use "tributum" in a generic
sense and make "vectigal" a subordinate species.30 Voit makes
threefold division: "tributum," "vectigal," and "gabella." 31 As
Molina points out these three terms were sometimes used synono-
mously in a generic sense.82 Thus St. Alphonsus uses the words
26 St. Alphonsus, Theologia MorcUis (ed. Gaude, Rome, 1907), III, n. 615;
Scavini, Theologiae Moralis Compendium (Milan, 1880), I, n. 335; Vives, Com
pendium Theologiae Moralis (Rome, 1904), n. 429.
--Rom. 13, 7: Reddite ergo omnibus debita: cui tributum, tributum:
cui vectigal, vectigal. St. Paul, of course, used the Greek cpoouc, and teXoc,
for "tributum" and "vectigal" respectively but the Greek terms conveyed the
same meanings.
28 Cf. Seligman, Essays in Taxation, p. 36 ; C. Bastable, "Finance," Ency
clopedia Britannica (11th ed. 1910-1911), X, p. 349.
20 Cf. Corpus Iuris Civilis, II, "Codex Iustinianus" (ed. Krueger, Berlin,
1929), 1. IV, tit. 61; Seligman, loc. cit.
30 Cf. Suarez, De Legibus (Naples, 1872), V, c. XIII, n. 2; Priimmer,
Man. Theol. Mor., I, n. 288.
31 E. Voit, Theologiae Moralis (Augustae Taurinorum, 1833), I, p. 372.
32 Louis Molina, De Justitia et Jure (Venice, 1611), tr. II, disp. 662.
"
"gabella" and "tributum" interchangeably in his discussion of taxes.33

Suarez attempted to give a more analytic division.34 Quoting a
distinction found in Roman law as a basis, he divides taxes into real,
personal and mixed. Real taxes are those which are imposed on im
movable things and their fruits and are paid annually; personal
taxes are those which are imposed, "ratione personae tantum";
mixed taxes are those which are imposed principally on movable
things, and on persons. The distinction in Roman law to which
Suarez refers, is not a distinction of taxes, but a distinction of the
various types of civil obligations in general. Furthermore, it is not
a threefold division but a twofold division: "Certain obligations of
the citizens are patrimonial, others are personal." 35 This division
of Suarez never found a permanent place in treatises on taxation,
mainly because the third member, "mixed taxes," is too vague to be
of much value.
In the eighteenth century, Quesnay and his disciples in the
Physiocrat school of economics introduced a new division. Accord
ing to the Physiocrat theory of economics, agriculture is the sole
source of wealth. Since taxes must therefore ultimately be paid out
of the proceeds of agriculture, it would be better to levy all taxes
directly on agriculture rather than tax anything else. When any
thing but agriculture is taxed, the tax burden eventually shifts to
agriculture anyway, but in the process there is much needless waste
and hardship. A tax on agriculture was called a "direct tax"; a
tax on anything else was called an "indirect tax." 36 The Physiocrat
theory itself did not win the acclaim of legislators but it has pro
foundly influenced many other theories of public finance and intro
duced the terms, "direct" and "indirect" tax. Moralists began to
88 Loc. tit.
84 Loc. cit. Suarez is not the originator of this division as it is mentioned
by Navarrus, Commentarius de Lege Poenali, n. 47, in Opera Omnia (Venice,
1618), III, p. 685.
"Cor. Iur. Civ., I, "Digest" (ed. Krueger), 1. L, tit. 4.
86 Cf. Seligman, The Shifting and Incidence of Taxation (New York, 1932),
p. 125 ff.; Robert Murray Haig, "Taxation," Encyclopedia of Social Sciences
(New York, 1934), XIV, p. 533.
adopt this terminology about the middle of the nineteenth century.

Its use is now universal.37
A direct tax is defined by the moralists as a tax immediately
imposed on the person as such, whether because of his goods or
because of his trade or business. Direct taxes are paid at stated
intervals. An indirect tax is one that is directly imposed on goods
and consequently only indirectly affects the person. It is paid, not
at stated intervals, but on the occasion of the transfer of rights over
the goods, or of the transfer of the goods themselves from one place
to another.88
All taxes may be brought under one of these two headings, though
there is some disagreement about the classification of certain taxes.
In general, all per capita taxes, inheritance, land, building, income,
foundation (fundorum) taxes are direct taxes. Under indirect taxes
come, customs, duties, imposts, and sales taxes. The meaning of
these various types of taxes is evident from the words themselves.
Some authors classify income taxes under indirect taxes because,
they say, income is the result of a transaction, i. e., a transfer of
rights over a thing, and this is the special feature of an indirect tax.
Nevertheless, most authors classify income taxes under direct taxes
because the basis of the tax is the wealth of the person as such
rather than the acquisition of wealth, and moreover, these taxes
are demanded at stated intervals.89 There is also some doubt as to
the classification of inheritance taxes. Those who justify the in
heritance tax on the ground that inheritance is simply a type of
income, regard this tax as a personal or direct tax. Those who main
tain that the tax is merely a charge on the legatees for the legal
privilege inheritance entails, regard the tax as an impersonal or in
direct tax.40 This latter opinion is very improbable since the high
87 John Gury, Compendium Theologiae Moralis (Lyons, 1850) , I, n. 707 ;

Ballerini-Palmieri, Opus Theologicum Morale (Prati, 1892), I, nn. 146 and 154.
It is to be noted that Ballerini uses the terms with some hesitation. Merkel-
bach, S. Theol. Mor., II, 624; Aertnys-Damen, Theol. Mor., I, 827; Priimmer,
Man. Theol. Mor., I, 289.
88 Cf. authors in note above.
*° Cf. Ency. Soc. Set., XIV, 534.
rate of inheritance taxes points to something more than a mere

charge for a legal privilege. The purpose is either revenue or regu
lation, i. e., a means of controlling the distribution of wealth. Fur
thermore, if this opinion were true, the charge would be a fee and
not a tax.41
A comparison of the Physiocrats use of "direct" and "indirect"
taxes with the later ideas of the theologians, shows that the terms
have lost their original meaning. The Physiocrats defined them in
relation to a presumed shifting of the tax burden to agriculture;
the moralists define them in relation to the immediate object of the
tax law.42 Some economists follow the moralists, while others prefer
to keep the original idea of shifting, even though they do not agree
with the Physiocrats that all taxes eventually shift to agriculture.
To add to the confusion, the various civil governments use the
terms rather arbitrarily. For example, in France a direct tax in its
legal meaning is one that is administered by the Division of Direct
Taxes of the Ministry of Finance. But this does not include sev
eral forms of taxes which are ordinarily classed as direct by both
moralists and economists. Certain types of income taxes, for ex
ample, are administered, not by this department but by the Regis
tration Taxes Administration. But all taxes not under the jurisdic
tion of the Division of Direct Taxes are legally known as indirect
taxes.43 In the United States the term "direct tax" has a specific
legal meaning due to the clause in the Federal Constitution whereby
"No capitation, or other direct, tax shall be laid, unless in propor
tion to the census. . . ." 44 From a number of court decisions it is
41 If the inheritance tax were merely a charge for a privilege it would con
tain the element of special benefit as found in fees. Cf. supra, p. 8.
42 J. Aertnys is one of the few theologians who mentions the idea of shift
ing in his explanation of the terms "direct" and indirect" tax. He says:
"... dicuntur autem indirecta, quia venditores, cum suas merces vendunt, in
pretio statuendo rationem habere debent tributorum, quae jam solverunt, et
idcirco haec tributa mercibus directe imposita, indirecta in emptores recidunt,"
Theologia Moralis (Tours, 1893), I, n. 377, p. 327. K. Wagner, Die sittlichen
Grundsdtze beziiglich der Steuerpflickt (Regensburg, 1906), p. 32, also mentions
shifting as the basis of the distinction.
43 Cf. Ency. Soc. Sti., loc. cit.
44 Constitution of the United States, art. 1, sec. 9, clause 4.
clear that the distinction between a direct and an indirect tax, as far
as the federal government is concerned, is based not on incidence,
i. e., shifting, but on the use and ownership of property. "A tax
levied on property because of its ownership is direct, one levied on
property because of its use is an excise duty or impost." *B What
ever may be the merits of this distinction in theory, in practice it is
not very helpful. Using the distinction as a basis, the court first
declared the income tax constitutional on the score that it was not
a direct tax.46 It was later decided that the income tax was a direct
tax and therefore unconstitutional since it was not apportioned ac
cording to the population.47 The inheritance tax is held to be an
indirect tax, contrary to the common opinion of economists.48
From what has been said it is evident that the division of taxes
into direct and indirect is not altogether satisfactory. According to
Seligman, and his opinion is rapidly gaining ground, the distinction
between direct and indirect taxes is not scientific but only collo
quial.49 Certainly the distinction drawn by the United States courts
is not scientific for property may be considered under three aspects,
not merely two as proposed by the judges.50 The courts contemplate
only the ownership and the use of property, leaving out of consid
eration the acquisition of property. The effect of this omission is
seen in the contradictory decisions concerning the classification of
income taxes. Furthermore, although ownership is so distinct from
use that one man may own what another uses, it is sometimes diffi
cult to distinguish the two in cases where the owner and the user
are the same person.
The explanation of the moralists also fails in certain cases. For
45 The Constitution of the United States (Annotated), (Washington, 1938) ,

p. 285.
48 Cf. Springer v. United States, 102 U. S. 586 (1881).
"Cf. Pollock v. Farmers Loan & Trust Co., 157 U. S. 429 (1895).
48 Cf. Knowlton v. Moore, 178 U. S. 41 (1900).
*i Cf. Ency. Soc. Sci., XIV, 534.
60 Cf. K. Wagner, loc. cit., who says: "Nun gibt es vor allem drei Wege,
auf denen diese Steuerquellen zum Zwecke der Besteuerung aufgesucht werden
konnen: Entweder namlich sucht und verfolgt man zu diesem Zwecke das
Einkommen und Vermogen in seiner Entstehung und Gewinnung oder in seinem
Besitze oder auch in siener Verwendung, in seinem Gebrauche."
example, there is no real distinction between a tax imposed directly

on a person because of his trade or business, and a tax imposed
directly on the trade or business. In both cases the person is taxed
and the trade or business forms the basis of the amount of the tax.
Despite the well-founded criticism of the division of taxes into
direct and indirect, it is the best division that has been proposed,
hence until the economists devise a better one, it will be advisable
for the moralists to retain the division, at the same time recognizing
its imperfections. However, the moralists would do well to adopt
the more scientific explanation of the terms based on the distinction
between the tax-payer and the tax-bearer. This distinction is very
clearly explained by Seligman: "In the process of taxation, we must
distinguish three conceptions. First, a tax may be imposed on some
person; secondly, it may be transferred by him to a second person;
thirdly, it may be ultimately borne by this second person or trans
ferred to others by whom it is finally assumed. Thus the person
who originally pays the tax may not be the one who bears its burden
in the last instance." 51 Using this distinction as a basis, a tax
could be called direct when the tax-payer and tax-bearer are iden
tical; indirect when the tax-payer and tax-bearer are distinct.
The most serious objection to this explanation is the practical
difficulty of determining just who is the tax-bearer. More often
than not it is impossible to determine the actual incidence of a tax.
The difficulty would be lessened if the explanation of the terms were
based on intended rather than actual incidence, in other words, if a
direct tax were defined as one in which the legislator intends that
the tax-payer and tax-bearer be identical. With the exception of
J. Stuart Mill, the economists frown upon this latter explanation.
Their main objection is that, even assuming definite information
regarding the intention of the lawmaker—which they say is quite
an assumption—the actual incidence is what really matters. From
their point of view, which is ultimately to provide the best tax sys
tem possible, they are perfectly correct. However, from the view
point of the moralist, who is endeavoring to determine the justice
of tax laws and the obligation of the subject to pay taxes, both the
61 The Shifting and Incidence of Taxation, p. 1.

intended incidence and the actual incidence are important. Intended

incidence is important because the morality of certain practices
whereby the one who originally pays the tax shifts the tax burden
on to someone else, depends to a certain extent on whether or not
the legislator is willing that the burden be thus shifted.52 Actual
incidence is important because the morality of the tax law itself
depends on whether or not those who actually bear the tax burden
are over-burdened.
Since both intended and actual incidence are of importance to
the theologian it would be foolish to insist on one to the exclusion
of the other. Of course, the definition of the terms "direct" and
"indirect" tax must necessarily be confined to either actual inci
dence or intended incidence because it often happens that the actual
incidence does not correspond with the intended incidence. For
this reason, it is suggested that taxes be divided according to the
following schema:
Direct (tax-payer and
tax-bearer identical)
Actual incidence
Indirect (tax-payer and
tax-bearer distinct)
Division of taxes
according to Direct (law-maker in
incidence tends tax-payer and
tax-bearer to be iden
tical)
Intended incidence
Indirect (law-maker in
tends tax-payer and
tax-bearer to be dis
tinct)
62 As far as the possibility of knowing the intention of the law-maker is

concerned, the objection of the economists is valid to a certain extent. It must
be admitted that in some cases definite information on the subject is not avail
able. But more often than not such information is available because in modern
states tax measures, like every other law, are preceded by rather lengthy de
bates in which the intention of those who finally vote for the bill, is generally
manifest.
r r
The older writers insisted quite strongly on the relation of each

individual tax to a predetermined public good that was to be ac
complished by the tax.60 But the financing of modern states is too
complex to permit such exact accounting. The public debt, actual
or proposed, is considered as a unit to be covered by taxes and other
public revenue in general, without earmarking particular taxes for
particular expenditures. There are a few exceptions, notably the
gasoline tax which is intended to pay for building and maintaining
good roads. It would certainly be unjust for the state to raise
money by such a tax and then use the money for something else, but
the injustice would arise, not because the state is obliged to use tax
money for the particular purpose for which it was collected, but
because such a tax would lack due proportion. It would be based
on a purely arbitrary discrimination against the users of gasoline.
This brings us to the third conditions for a just tax.
3. Just distribution of the tax burden. All authors, even all
economists and political scientists, admit that there must be a pro
portion between the tax and those who pay the tax. This is but a
statement of the obvious since some citizens pay taxes and some do
not, some pay more and some pay less. A basis must therefore be
determined in order to decide who is to pay and how much is to be
paid.
The moralists are unanimous in their teaching that the ultimate
basis of apportioning a tax is the ability of the citizen to pay, or as .
the economists put it, faculty.01 The secular writers are divided
into two groups: those who hold that faculty is the basis, and those
who hold that benefit, if not the main basis, should be given at least
some consideration.
The benefit theory in its extreme form developed during the
eighteenth century as a protest against the unjust tax systems of
France and other countries. According to this theory, a person
00 Cf. Suarez, De Legibus, V, c. XV, n. 1.

ai It is interesting to note that one of the earliest references to taxation in
the Bible (7th century b. c.) seems to indicate that the principle of ability to
pay was even then recognized as the just method of distributing the tax burden.
Cf. IV Kings, 23, 35: "And Joakim gave the silver and the gold to Pharao, after
he had taxed the land for every man, . . . according to his ability."
should pay taxes in direct proportion to the benefits he receives

from the state. If an individual could prove that the state con
ferred no benefits upon him, he could not be held to pay anything.
According to this basis a poor man should be taxed more than a rich
man because the state does more in the matter of support and pro
tection for the poor than for the rich. A theory which leads to such
absurdities could not receive the continued support of intelligent
men. It had, indeed, many adherents in the eighteenth and early
nineteenth centuries but since then has been rejected by the majority
of thinking men.62
Most of the economists who today maintain that benefit has
some place in determining the amount each should pay, are those
who hold that benefit and faculty are to a certain extent convertible
terms. In other words, the wealth of a man is an indication of the
amount of benefit he receives from being a member of the state.
The merits of this theory need not be discussed for whether it be
true or false, its adherents arrive at the conclusion that taxes should
be imposed according to a man's ability to pay.
Other economists are of the opinion that in certain types of spe
cial taxes, e.g., gasoline taxes, the basis used to determine the
amount each should pay, is not ability but benefit. There is no
doubt that benefit is considered in apportioning a tax of this type.
A person uses the public highways in proportion to the amount of
gasoline he buys, and the amount of gasoline in turn determines
the amount of tax he must pay.63 On the other hand, it is idle to
63 The relation between benefit and the tax paid in some cases is so intimate
that many economists disagree with Seligman's definition of a tax which limits
the term to those charges in which there is no "reference to the special benefits
conferred." If the definition be true, they say, then these special taxes are not
taxes but fees. A satisfactory explanation of Seligman's position is to be found
in the interpretation of the word "reference." In excluding "reference to special
benefits" from the notion of a tax, Seligman does not exclude special benefits.
On the contrary, the phrase emphasizes the fact that special benefits may be
present. It is also clear that the phrase does not exclude all reference to spe
cial benefits for if these are present there must be some reference or relation of
benefit to contribution. What is excluded, is any reference of contribution to
benefit that would imply a strict right to the benefit on the part of the con
tributor.
maintain that benefit is the only consideration because there is no

attempt to differentiate between a person who uses the gasoline for
profit, and one who uses it for pleasure. But even if benefit were
the sole basis the tax would not ipso facto fail against the principle
laid down by the theologians that every tax must be apportioned
according to ability. This principle is not to be taken in an exclusive
sense; it is simply another way of saying that a man may not justly
be taxed beyond his means.
It is well to note that in a thing so complex as taxation it is
practically impossible to enact a tax law that will not result in some
inequalities.64 These isolated cases do not vitiate the law but of
course any individual who would certainly be taxed more than his
just share, would be excused from complying with the law.
64 Cf. Suarez, De Legibus, V, c. XVI, n. 4 ; Priimmer, Man. Theol. Mor.,

I, 292.
P
Cf.
he hai
CHAPTER II
VARIOUS OPINIONS CONCERNING THE OBLIGATION

IMPOSED BY A JUST TAX
Introduction. Where there is so much room for diversity of

opinion as there is in the question of the obligation imposed by a
just tax law, classification of authors according to their opinion is
apt to be misleading. It is very easy to pick out four or five lead
ing opinions and force all authors into these categories. The danger
is that an author may be classified as holding an opinion which in
reality he only states as probable, or which he merely favors slightly.
The use of four divisions in the present chapter is not intended as
a facile and absolute index of the opinion of the various authors on
the obligation of paying taxes. It is a more or less arbitrary, but
necessary, substitute for the minute divisions that would have to be
used otherwise. A few authors do fit the classification exactly but
most have variations either in their presentation of their opinion
or in their adherence to it.
It is to be noted that some authors refrain from any solution
of this problem based on principles concerning the inner nature of
the obligation imposed by a just tax. They are content to give
norms for settling actual cases that arise. These norms, of course,
are based on the reflex principle that in a doubt, the milder opinion
—if solidly probable—may be followed licitly. The milder opinion
in this case is that all tax laws are purely penal laws. Indeed, very
few authors who hold stricter views, are so convinced of their opin
ion that they would never allow the milder one to be used.
An accurate summary of each author's opinion will be attempted
in the following pages, but it must be remembered that a mere
glance at the heading of the article under which an author is treated
will not convey to the reader an accurate impression of the author's
opinion. This can be had only by reading what is said about each
author.
27
rr
28 The Moral Obligation ' of Paying Just Taxes
I. The Opinion That All Tax Laws Are Merely Penal Laws
According to Damen, "A purely penal law is one that imposes
a penalty on those who do or omit something without prescribing
the doing or omission of that thing under moral guilt." 1 Merkel-
bach's definition brings out more clearly the exact nature of such
a law. According to him, a purely penal law is "one that does not
oblige in conscience to do what the law prescribes, but does oblige
in conscience not to resist the infliction of a penalty and to undergo
the penalty in case of a transgression." 2 The distinguishing feature
of a purely penal law is the absence of moral guilt (sin) except in
connection with the penalty. The object of the law may be disre
garded as far as conscience is concerned as long as one is willing
to undergo the penalty which may be inflicted for a violation of the
law. Many authors hold in principle, and most agree at least in
practice, that tax laws are purely penal laws.
1. Angelas (1411-1495). Blessed Angelus of Clavisio is one of
the earliest and indeed one of the most ardent exponents of the
view that tax laws do not oblige in conscience directly to the act of
paying taxes. Unfortunately, Angelus does not present his doctrine
as clearly as one would wish. He gives the principles governing the
obligation of paying taxes in his Summa Angelica under the title,
"Pedagium." 3 A "Pedagium" is a very restricted type of tax, being
defined as one that is imposed on those who pass through territory
specified by the prince or by one who has the necessary authority.
In the same article Angelus mentions and defines only two other par
ticular taxes, "Guidagium" and "Salinarium." However, it is cer
tain that Angelus intends to cover all types of taxes with the prin
ciples given in this place because under the title, "Vectigal," he
simply defines "vectigal" and "tributum" and then refers the reader
back to "Pedagium."
1 Theol. Mor., I, 158.

2 5. Theol. Mor., I, 287.
8 Angelus was one of the most popular pre-reformation theologians. His
work first appeared in 1476 and went through thirty-one editions up to 1520.
The edition consulted here was that published at Lyons in 1494. Luther called
the work, "more than diabolical" and burned it publicly together with the
Bible. Cf. Priimmer, Man. Theol. Mor., I, xviii.
Opinions Concerning Obligation Imposed by a Just Tax 29
Angelus asks the question whether those who do not pay "peda-
gia" or "guidagia" commit sin and are bound to restitution.4 First,
he gives what he calls the common opinion, namely, that it is a sin
to defraud just taxes and in the event of a violation, restitution is
necessary. His own opinion is as follows: "But I say that when
those who impose these taxes do not provide for the common good,
for example, in caring for roads, bridges, the safety of people and
other things, according to their ability as they are bound to do, the
subjects do not sin if they evade the tax without lying and perjury,
nor are they bound to restitution." All that Angelus says here is
that when money collected in taxes is misused, the subjects do not
have to pay the tax. He then goes on to say: "Nor do I believe that
those sin who defraud taxes, even when the aforesaid (i. e., those who
impose the taxes) do provide for the common good." Angelus is
not speaking of all tax laws since the reason he gives for his opinion
limits it, as he himself points out later on. His argument is this:
"... these laws are usually worded thus,—we ordain (statuimus)
that everyone pay, etc., under penalty of falling into a crime com
mitted (sub pena cadendi in commissum) if he is found doing other
wise."
To understand the force of this argument it is necessary to con
sider what Angelus says about penal laws in general. He treats this
question under the title "Inobedientia." In answer to the question:
"Whether it is a sin to disobey a penal law?" Angelus makes a dis
tinction. Some laws contain two precepts, for example, "We order
that no one do a certain thing and whoever does the thing must pay
this or that penalty." 5 In this case it would be a sin to disobey
the law. But other penal laws contain only one precept, for example,
"If anyone does this thing, he must pay this penalty." Angelus
concludes: "... and thus from the form of the law, it would oblige
only to the penalty." But he adds this monitum which is often over
looked by those who quote him: "However, from the intention of the
legislator, it would oblige in conscience (i. e., to the act itself) if it
were disregarded for a light cause." 6
* Loc. at., n. 6.
sOp. oit., "Inobedientia."
*Ibid.
r r
Angelus applies this opinion about the obligation of penal laws

in general to the obligation of tax laws. He admits that the opinion
can be used only if the tax law is worded in such a way that the law
contains, as he claims, only one precept. In fact, he admonishes con
fessors to examine the tax laws in order to be able to form a sound
judgment concerning their binding force.7 Angelus himself claims
that most tax laws do contain only one precept and therefore are
binding in conscience only to the penalty. It is not necessary to in
vestigate the historical fact, i. e., the minor premise of his syllogism.
In the following chapter his teaching concerning penal laws in gen
eral will be scrutinized.
2. Navarrus (1493-1586). Although Navarrus has a section in
his Manuale sive Summa Confessariorum entitled "De Peccatis circa
Iura & tributa Regia, & publica," the opinion of Navarrus concern
ing the obligation imposed by tax laws is really found in several
other places in that same work and also in his short treatise De Lege
Poenali.
In the Manuale under "De Peccatis," Navarrus has this to say:
"He sins who does not pay taxes . . . and incurs the obligation of
making restitution . . . unless the ruler has the intention, either ex
pressed or tacit, of impeding (impediendi) the obligation to an eter
nal punishment by the imposition of another temporal punishment." 8
Navarrus then refers to the other places mentioned above for the
proof of his assertion. In chapter twenty-three of the Manuale he
says: "Until the apostolic See declares the contrary to be true, it
seems more probable to us that in a doubt, human laws, especially
civil laws, do not oblige to eternal punishment when they contain a
temporal penalty." 9 The reason for this conclusion is that human
laws which oblige to mortal sin should be few and also that "many
Catholics hold that no human laws, even though the laws do not
contain a temporal penalty, oblige to mortal sin unless they are dis
obeyed through contempt or unless the disobedience gives rise to
* Op. cit., "Pedagium," n. 6.

8 Manuale sive Summa Confessariorum, XVII, 200, in Opera Omnia (Venice,
1618), I, p. 263.
8 Op. cit., p. 395.
scandal." 10 Navarrus does not hold this extreme view but since
those who do hold it would certainly hold that human laws which
contain a penalty do not oblige to mortal sin, he can use those
authors' as an argument from authority.
So far Navarrus has not said anything which proves definitely
that he held all tax laws to be purely penal laws. He does claim
that the intention of the legislator can make laws purely penal, at
least to the exclusion of mortal sin, and that in a doubt, this inten
tion is to be presumed.
The treatise, Commentarius de Lege Poenali, is an unfinished
work but Suarez maintains that it sufficiently indicates that Navarrus
did hold tax laws to be purely penal.11 The treatise was written
principally against a work of Alfonse Castro, De Potestate Legis
Poenalis.12 After criticizing several points in Castro's treatise,
Navarrus states the opinion of Castro that those who defraud just
taxes are guilty of sin and are bound to make restitution.13 The
objections against the opinion are then presented in a tone which
seems to indicate that these arguments, i. e., against the opinion of
Castro, met the approval of Navarrus. But immediately following
this Navarrus says: "For the solution of this important question, I
say, first, etc.," showing that Navarrus has not yet committed him
self definitely to either side.14 Navarrus then goes on to define
"tributa" and "vectigalia" and to divide all taxes into real, personal,
and mixed. After showing that real taxes are more naturally due
than personal or mixed taxes, the work comes to an abrupt close.
Navarrus has always been classed as an exponent of the view that
tax laws are purely penal laws and a careful reading of his works
seems to justify that tradition. Nevertheless, it remains true that
he does not explicitly and definitely state it as his opinion that tax
laws are de facto purely penal.
3. Beia (dates unknown—lived in second half of 16th century).
i8 Ibid.
" Cf. De Legibus, V, c. XVIII, n. 2.
12 In Opera Alfonsi Castro (Paris, 1571), col. 1513 ff.
13 Navarrus, Commentarius de Lege Poenali, n. 41, in Opera Omnia, III,
p. 683.
14 Op. cit., n. 46, p. 684.
r "
Although there is no doubt about Beia's opinion regarding the ques

tion whether tax laws bind in conscience, there is considerable diffi
culty in finding a consistent interpretation for some of his statements
on the matter.
Beia presents his opinion in answer to the following case: "John
secretly transports grain and other merchandise from the city in or
der to sell the merchandise elsewhere, although he knows it is for
bidden to do this under penalty of the galleys and confiscation of
the goods. It is asked, whether John sins mortally and what should
the confessor oblige him to do?" 15
The answer is very positive and clear: "John does not sin mor
tally by secretly exporting the said merchandise without paying the
tax nor is he bound to restitution unless perchance, he resisted the
tax-collectors with violence and force of arms."
Before presenting the arguments for his solution of the case,
Beia notes that although the arguments are frequently used, their
cogency is doubted by many.16
Beia then makes three observations, the first two of which seem
to argue against his solution of the case rather than in favor of it.
His first observation is: "It is to be noted that taxes justly imposed
are due to the prince by divine law: which is clearly deduced from
St. Paul to the Romans 13, 'For this is also why you pay tribute, for
they are the ministers of God serving unto this very end. . . .' St.
Paul adds that they are the ministers of God that we may under
stand that the law of paying taxes (tributa) to support the princes
proceeds from His name (ab eius nomine derivari) : and indeed who
ever would deny this truth would be accused of worse than temerity
(italics added) since such taxes belong to them by natural law and are
due also by divine law, as is proved most clearly from their (i. e., the
princes') ministry and labors for the good of the people committed
to them. . . ."
In view of Beia's solution of the case, it is difficult to arrive at a
very satisfactory explanation of this first observation. Certainly
15 Responsiones Casuum Conscientiae (Venice, 1591) , cas. 13, p. 53 ff.

16 Op. cit., p. 53 : "Pro cuius conclusionis evidentia, ut quae in usu frequens
est, & multis dubia."
none is indicated directly in the text or context. It cannot be that

the author is merely stating an opinion here which he himself does
not hold, for he says that whoever does not hold that "taxes justly
imposed are due to the prince by divine law," would be accused of
"worse than temerity." A possible explanation is that Beia thinks
this statement of St. Paul proves only that the princes have the right
to impose taxes that are binding in conscience if they so desire. An
other possibility is that Beia considers the obligation of supporting
princes binding only in general but not in particular, i. e., each sub
ject has the general obligation of supporting the prince but as long as
he fulfills this obligation in some way, no individual act of support
can be urged under pain of sin. This solution seems to be indicated
by Beia's second observation, namely, that the quantity and quality
of the taxes come from human laws, not divine law, since they dif
fer in various countries. But this is not a very good explanation in
view of Beia's clear statement that, "taxes justly imposed are due to
the prince by divine law." The imposition of a just tax particular
izes the general obligation of supporting princes. Hence Beia seems
to be speaking of a particular obligation in the first observation.17
Beia gives the arguments for the solution of the case in his third
observation. "It is to be noted thirdly, that many of the most
learned doctors hold the opinion that human penal laws, and espe
cially secular laws, do not oblige transgressors under pain of mortal
sin but the prince who enacts such laws intends by the imposition of
a temporal penalty not to bind his subjects to an eternal one." Beia
states two reasons why the doctors arrive at this conclusion. First,
in a doubt, it must always be presumed that the prince does not
wish to burden the people too heavily. In support of this statement,
Beia quotes the "regula iuris": "In penalties the more benign inter
pretation is to be used." 18 Second, a law would not be unjust in
which the prince who enacts the law expresses that it is not his in
tention to oblige to mortal sin except in case of scandal or con-
17 Nevertheless, this is the solution adopted by Lacroix. "... certum est

autem, de iure naturae & positivo, tam divino quam humano, Principibus ali-
qua tributa deberi uti recte probat Beja, p. 1, cas. 13, 3." Theologia Moralis,
III, pars II, n. 269 (Coloniae, 1739), I, 343.
18 Reg. 49, R. J., in VI": In Poenis benignior est interpretatio facienda.
tempt, but that it is his intention to oblige those who transgress the
law without just cause, to this or that penalty. Beia claims the sup
port of St. Thomas for both these arguments.19 He concludes:
"... and therefore that law would also be just which tacitly con
tains the same thing, namely, which expresses the penalty and is
silent about the obligation in conscience to the sin." Beia gives three
additional arguments for this statement. (1) When the legislator
could oblige to both proposed obligations but expresses and affirms
only one, he seems to deny the other. When therefore the legis
lator could oblige to both the eternal and temporal punishment, but
invokes only the temporal, the presumption is that he excludes and
remits the eternal. (2) No law is binding in conscience except from
the will of the legislator who ought to express his will so clearly
that a normal subject cannot plead either ignorance or doubt.
(3) Pagan legislators do not determine anything about mortal sin,
and very few Christian secular princes, when asked about the mat
ter, would say that when they attach a temporal penalty to a law,
they intend to bind also to an eternal penalty not present by reason
of either divine or natural law.20
The point of this whole line of argument seems to be this: No
law binds in conscience except from the will of the legislator who
ought to express his will so clearly that there is no doubt about the
matter. From this it follows that a law-maker may certainly pass a
law in which he expressly states that it is his intention to bind in
conscience only to the penalty. When such an intention is not ex
pressed, but the law nevertheless contains a penalty, Beia thinks that
the law implicitly contains an intention of not binding under pain of
mortal sin to anything but the penalty. Since tax laws always con
tain a penalty, implicitly they contain the legislator's intention of
not wishing to bind under pain of mortal sin to anything but the
penalty.
It is to be noted that Beia argues only that laws in which a grave
obligation in conscience is not expressed, do not bind under pain of
mortal sin, because the legislator is not presumed to wish to send the
19 "... ut docet uterque Th. 2,2, q. 186, ar. 9," op. cit., p. 55.
20 Ibid.
subject to hell. But this does not prove that he did not hold that
laws with a penalty attached bind under pain of venial sin. Hence
it cannot be said with certainty that Beia is an exponent of the
purely penal law theory as that theory is taught today, because ac
cording to the modern theory of purely penal laws, there is not even
an obligation under pain of venial sin to perform the act prescribed
by a so-called purely penal law.
4. Berardi (d. 1916). Berardi defines a tax (tributum) as,
"anything which is paid to the government, province or municipal
ity." 21 He includes in this, not only all taxes, whether direct or
indirect, but also most of the income which is derived from fees and
even certain types of fines. He excludes postal fees and railroad
rates, which he says contain an implicit contract.
After giving this wide meaning to the word "tax," Berardi asks
the question: "What therefore about subjects who have found a way
to avoid paying a tax?" He answers as follows: "... probably
there is no obligation of restitution after the tax has been evaded.
For the duty of paying taxes probably does not arise from a tacit
pact by which the subjects bind themselves to pay the prince what
ever is necessary for the public expenses—each one contracting to
pay an allotted percentage of the debt; but this duty arises rather
from the law of the prince who determines how that sum of money
which is necessary shall be raised." So far, Berardi has not claimed
that tax laws are purely penal laws. He has merely said that tax
evasion probably does not involve the obligation of restitution.
Berardi is usually classed with those who hold that tax laws are
purely penal laws because of the following statement: "But it seems
that the prince does not wish to bring about this effect (i. e., raising
money) by means of conscience (ope conscientiae) but by means of
his officials and fines; as though he said: either pay or expose your
selves to the danger of a fine; for this is sufficient and it would be
superfluous to burden consciences." Berardi then appeals to the
"sensus communis," which he says has always understood tax laws
in this sense. His final argument is from the authority of theolo
gians: "Nor are there lacking theologians of great name who con-
21 Praxis Confessariorum (Faventiae, 1898), II, p. 176 ff.
'
'
sider this opinion probable. Cf. Navarrus (XII, 55), Lugo (XXXVI,
42), Gury (740-744), Frassinetti (Diss. VII, n. 1) and S. Lig. (n.
616)." 22
Berardi holds that there would not be an obligation of restitu
tion even though the tax were evaded by means of lies and deceit.
5. Genicot-Salsmans (G. 1856-1900). Genicot is quite orderly
in his treatment of the question.23 First, he states what is certain,
namely, that unjust tax laws do not oblige in conscience; that the
legislator has the power to pass tax laws which do oblige in con
science even before demand for payment is made; that nowadays
there is no obligation to pay taxes before the amount each one has
to pay is determined by the state. According to Genicot it is also
certain that per se there is no obligation in conscience to declare tax
able goods spontaneously. Although it is certain that the general
obligation of supporting the state must be particularized by law be
fore it urges, some authors hold that per se there is an obligation of
declaring taxable goods.24
Genicot then states his opinion concerning the obligation im
posed by tax laws. "It is more probable," he says, "that today tax
laws in most regions are purely penal." He gives three reasons for
this opinion: "(1) Even in former times there were not lacking
doctors who considered these laws at most merely penal (Lugo, disp.
36, n. 38). But today this can more easily be admitted since legis-
22 St. Alphonsus expressly refrains from judging the probability of this

opinion: "An autem propter has rationes (quae caeterum non videntur con-
temnendae), ipsa sit sufficienter probabilis, sapientioribus me remitto" (III, n.
616). Berardi could not have read Lugo very thoroughly either. Lugo holds
that tax laws do not oblige in conscience unless the tax is demanded. But this
is not quite the same opinion as that held by Berardi. Furthermore, Lugo's
opinion is found in n. 41, not 42. After mentioning the five authors, Berardi
gives a rather lengthy quotation from Lugo (n. 91, 92): "Multi probabiliter
dicunt subditum opinantem probabiliter rem praeceptum excedere praecipientis
potestatem, posse non obedire, etc." We can agree with Berardi that this is,
"notabilissimam Lugonis doctrinam," but it is hard to see how it proves that
tax laws are purely penal. It would prove only that a tax law which probably
exceeds the authority of the ruler can be probably transgressed with a safe
conscience.
23 Institutiones Theologiae Moralis (Brussels, 1927), I, 572 ff.
2* Cf. K. Wagner, Die siltl. Grunds. beziigl. der Steuerpf., p. 97 ff.
lators usually abstract from all obligation in conscience; hence no

obligation in conscience' is to be admitted from civil law unless it is
demanded by the common good. ... In this case there does not
seem to be any such demand. (2) In this country (Belgium) even
conscientious men interpret tax laws in this way. (3) It is at least
probable that modern taxes are unjust in many states and cities." 25
After stating this opinion and the arguments for it, Genicot says:
"It follows (italics by Genicot) from the probability of this opinion
that per se they do not sin who defraud taxes under the circum
stances mentioned." He admits that citizens would be obliged to
pay taxes from natural law and in legal justice if the needs of the
state were so pressing that they would not be relieved if tax laws were
considered merely penal.
Genicot also agrees that it would be better for citizens to pay all
just taxes, and he advises confessors to counsel this mode of acting.
It is to be noted that Genicot does not say that tax laws in
every country are purely penal laws. He limits his opinion to "most
regions" and mentions Belgium as one of these. He claims that in
other countries where tax laws are not universally considered purely
penal—he cites Holland and Germany as examples—it would more
probably not be a sin against justice to defraud certain types of in
direct taxes, for example, income taxes. He would not allow total
evasion of the tax but would condone partial evasion (puta paulo
supra dimidium) on the ground that the state does not seem to have
a right to the whole tax, and that it would be unjust to burden con
scientious men with heavier taxes while wicked men usually pay less.
6. Crolly (d. 1849). Crolly gives a very wide meaning to the
word "tax." He was one of the first theologians to use the division of
"direct" and "indirect" taxes, but under indirect taxes he includes
mail service fees.26
Before stating his opinion about the obligation imposed by tax
laws, Crolly quotes Suarez to the effect that the obligation will depend
on the will of the legislator and the custom of the people, and hence
25 Op. cit., 573. Genicot's reference to Lugo as an exponent of this theory

is not warranted by Lugo's teaching. Cf. note 22, on page 36.
28 Disputations Theologicae de Justitia et Jure (Dublin, 1877), III,
1001 ff.
it will differ in different countries and in different times. He will by

no means grant that the arguments from Scripture and reason prove
the existence of an obligation independent of the will of the law
giver. "From Sacred Scripture and from reason it is proved only
that the legislator has the power to make tax laws that would oblige
in conscience if the legislator so willed; it is by no means proved
from these sources that all tax laws do actually bind in conscience,
for this depends of the will and prudence of the legislator." He
goes on to say that the advance in political science regarding the
imposition of taxes has made for more equitable tax laws, especially
in the matter of indirect taxes. Hence there is no longer any reason
for saying that "there is a stricter obligation among us (in Ireland)
of paying direct taxes than of paying indirect."
Crolly's own opinion is as follows: "We judge among us, the law
by which taxes are imposed is penal and therefore there is no obliga
tion to pay taxes even after demand has been made for payment but
that there is an obligation is strict justice, to pay both the tax and
the fine imposed for a violation of the impost, when the impost can
not be evaded without violence."
This conclusion is based on the following considerations: "Among
us the greater part of learned and prudent men, and even those sena
tors by whom tax laws are passed nowadays, do not think that the
obligation of paying taxes is founded in commutative justice, nor that
the legislator wishes to bind in this matter to the very limit." After
this argument from authority, Crolly draws an a pari argument from
what he calls the "more common" opinion about the obligation of
paying indirect taxes. "The more common opinion," he says,
"teaches that indirect taxes are not due in strict justice, but among
us and also in many well-ordered states, they oblige just as strictly
as direct taxes." In other words, since there is no obligation in strict
justice to pay indirect taxes, neither is there such an obligation to
pay direct taxes,—one obligation is not stricter than the other.
Crolly's final argument in favor of the opinion that tax laws are
purely penal is that the peace and welfare of the citizens will be
greatly promoted if this opinion is carried out in practice.
These arguments are not conclusive enough to convince Crolly
that this opinion alone is probable. On the contrary, the following
"
statement seems to indicate that he ascribes considerable probability

to the stricter opinion. "At least it is by no means certain that these
laws oblige in strict justice and since, as Suarez declares, they are
odious, in a doubt they ought not to be considered to bind under
such a great burden." "
7. Frassinetti (d. 1868). Frassinetti is another author some
times cited in favor of considering all tax laws merely penal. But he
can hardly be called an unqualified exponent of this view. He de
votes but a single paragraph to this particular point and is content
to quote Gousset to the effect that one should not oblige penitents to
make restitution for defrauding taxes if they (the penitents) do not
think themselves bound to do so.28 Then he goes on to say that
many authors consider these laws purely penal laws and points out
that there are many circumstances which will prompt the confessor
to be lenient in this matter.
8. H. Davis. H. Davis states: "The obligation of paying direct
taxes is most probably an obligation in conscience, unless by custom,
interpretation of law in a given country, or intention of the law
giver the contrary is evident." 29 This statement contains an af
firmation of the obligation in conscience of paying direct taxes and
at the same time leaves room for a denial of that obligation. Davis
bases the assertion that there is an obligation on the following rea
sons: (1) Our Lord's words to the Jews: "Render to Caesar the
things that are Caesar's."30 (2) St. Paul's words to the Romans:
"Therefore, one must needs be subject, not merely for fear of the
wrath, but also for conscience' sake. . . . Render to all their due,
tribute to whom tribute is due, taxes to whom taxes are due, fear to
whom fear is due, honor to whom honor is due." 31 (3) The state
ment of the Roman catechism: "Among those guilty of this crime
of rapine are included persons who do not pay customs, taxes, tithes
27 There is no foundation for the statement made by Marres (De Justitia,

II, 196) that Crolly follows the opinion that taxes are due in strict justice after
legal definition of the amount to be paid.
28 Compendia della Teologia Morale (Genoa, 1866), I, p. 304.
28 Moral and Pastoral Theology (New York, 1938) , II, 338 ff.
30 Matt. 22, 21.
31 Rom. 13, 5-7.
and other such revenues, which are due to those who preside over the
Church, and to the civil magistrates." 32 (4) The argument from
reason: "The state has to be maintained for the common good, peace
and security, and therefore it is part of legal justice that the citizens
should contribute their just share when it is claimed." 33
After thus establishing the first part of the thesis, Davis justifies
the exception he makes in these words: "In most states nowadays,
and prescinding from periods of urgent need and imminent danger,
it is questionable whether this obligation is more than penal. In
England it is certainly penal only, because the executive exercises
considerable vigilance, inflicts heavy fines and imposes heavy direct
taxes to recoup losses. It appears unreasonable to expect good citi
zens, who certainly are in the minority, to be obliged in conscience
to pay taxes, whereas so many others openly repudiate the moral
obligation, if there is one. It seems unjust that good people should
feel an obligation to be mulcted and to pay readily, in order to bal
ance the evasions of so many." 3*
Fraud, lying and deceit in the matter of income tax returns are
not to be countenanced, but, "such acts are not clearly sins against
justice and do not necessarily entail restitution." Davis concludes
this part of his work: "Nevertheless, whatever may be held in point
of theory as defensible, Catholics should err on the side of strictness,
for even the statement, and still more, the putting into practice, of
the complete doctrine on taxation, are apt to give scandal and do
harm to religion. It is chiefly post factum that the confessor may use
—but with the greatest prudence in speech—the common teaching
without scandal." If by this, H. Davis means that according to the
common opinion tax laws are merely penal, the statement is not cor
rect. It is true that most authors would not enjoin the obligation of
making restitution on a penitent who has evaded a tax, but this
leniency is based on the presumption that a certain percentage of tax
laws are unjust, not that tax laws are purely penal.35
Davis says nothing about the obligation of paying indirect taxes.
32 Part III, c. VIII, qu. X.

3SOp. cit., p. 339.
34 Op. cit., p. 339.
35 Cf. infra, p. 53; Molina, De lustitia, III. disp. 674, n. 9, concl. 5.
Very probably he would consider the obligation merely penal since

it is usually conceded that the obligation imposed by indirect taxes
is not stricter than that imposed by direct taxes.
9. T. Iorio. Iorio's treatment of the obligation imposed by just
tax laws is probably the most confused of any author that has been
consulted in making this study. The confusion may be traced to
the fact that Iorio, as the title page states, composed his work,
"Iuxta Methodum Ioannis P. Gury et Raphaelis Tummolo." But
on the question of the obligation imposed by tax laws, Iorio disagrees
completely with Gury. And yet Iorio makes so few changes in the
text of Gury that the result is confusing and very inconsistent.
Gury, as will be seen,86 held that tax laws oblige in virtue of
commutative justice, and following the example of St. Alphonsus,
would not decide whether the opinion that tax laws are merely penal
is sufficiently probable to be a safe norm to follow in practice. Iorio
holds that the penal law theory has such great probability, "that
no burden of restitution can be imposed on those who fail to pay,
because they cannot even be accused of sin." " Furthermore, Iorio
holds that if tax laws do impose an obligation in conscience, it is
one of legal justice and not commutative justice.38 Notwithstand
ing this radical disagreement, Iorio retains the text of Gury almost
verbatim. The most important change occurs in the sentence in
which Gury says: "Therefore, a pari the subjects are bound in con
science and in justice," to pay taxes. Gury evidently meant "com
mutative justice" as will be seen below.39 Iorio uses the same argu
ment in this passage to prove that tax laws impose an obligation in
legal justice as Gury used to prove an obligation in commutative
justice.
Gury continues his treatise by proposing a question concerning
indirect taxes—whether such taxes always oblige under pain of sin
and whether those who do not pay must make restitution. Iorio
proposes a similar question concerning both direct and indirect
36 Infra, p. 60.
sr Theologia M oralis (Naples, 1939), II, n. 778. The article on taxes begins
in number 773.
88 Op. cit., n. 775.
39 P. 60.
taxes. But if, as Iorio maintains, taxes do not oblige in virtue of

commutative justice, there can be no question of making restitution
when the laws are not obeyed. Nevertheless, Iorio does propose the
question and answers it practically in the words of Gury. As was
mentioned above, Gury does not give a definite answer to this ques
tion but leaves it to the reader to decide. Iorio says: "Quamobrem
nobis quoque satis erit, si relato iudicio S. Doctoris (S. Alp.) de hac
controversia . . . pio lectori electionem relinquamus" (the words in
italics are taken from Gury). Iorio then immediately proceeds to
inform the reader that, "since the opinion which holds that tax
laws are merely penal is sufficiently probable, it follows that no
burden of restitution can be imposed on those who do not pay, be
cause they cannot even be accused of sin; indeed not even if they
use fraud in order to avoid the tax. . . . Those who act in this way
are obliged only to undergo the penalty if they are apprehended."
After stating that Noldin limits this theory to indirect taxes,
Iorio says: "But other authors rightly extend the theory to all taxes,
whether direct or indirect ... for the same reason holds for both."
II. The Opinion That All Tax Laws Oblige in Virtue

of Commutative Justice
1. St. Antoninus (1389-1449). St. Antoninus devotes a rather
lengthy chapter of his Summa to the subject of taxes but he is
concerned for the most part with the conditions requisite for justice
in tax laws. If a tax law is just, St. Antoninus considers it binding
in conscience in virtue of commutative justice. In the following
principle the saint uses the word "tallias," which is translated simply
as "taxes." Actually the word corresponds to our "direct taxes."
St. Antoninus speaks of other taxes later on. Concerning these
"tallias" he says: "Subjects who without the consent of the prince
use fraud and other means to evade just taxes due because of a
pact or from ancient and legitimate custom, or even those recently
imposed ... sin mortally by committing the sin of theft and are
bound to restitution." *°
40 Summa Sacrae Theologiae (Venice, 1571), II, p. 63 ff.
V
V
It might be argued that St. Antoninus is speaking only of cases

where unjust means were used to evade the tax because he mentions
those who "use fraud and other means." But it is clear from other
passages in this chapter on taxes that St. Antoninus intends to in
clude every method of evading taxes under the phrase "fraud and
other means." Thus the saint excuses those who evade an unjust-
tax, "by using fraud, i. e., by hiding the goods, as long as they
abstain from perjury and lies." When therefore he declares that
those sin who evade a just tax by fraud and other means, he holds
those guilty of sin who hide the things subject to the tax—a means
quite indifferent in itself.
Regarding other taxes, namely, "pedagia, guidagia and the-
lonea," St. Antoninus lays down this principle: "Those who do not
pay lawful pedagia and thelonea, commit the crime of rapine or
theft, hence they are bound to make restitution to those to whom
the tax is due and to do penance for the sin committed." 41 The
only argument St. Antoninus advances directly in favor of his opin
ion is the text of St. Paul: "Reddite omnibus debita, etc." "
As was pointed out above, St. Antoninus is more concerned with
the principles governing the imposition of a just tax than with the
precise nature of the obligation imposed by a just tax. He seems to
take it for granted that his propositions concerning the obligation
imposed by just tax laws need very little proof.
2. Molina (1536-1600). After a minute discussion of the requi
sites for justice in tax laws, Molina lays down the principle: "When
a tax is imposed according to all the conditions explained, . . .
those who do not pay, sin mortally provided the amount is sufficient
for a mortal sin of theft, and they are bound in the forum of con
science to make restitution. . . . The common opinion of the doctors
affirms this." 4S Molina then cites six authors in favor of this view
and claims the authority of "many others." He continues: "It is
true that some few (paucissimi) oppose this teaching, not consider
ing that taxes are not penalties imposed by tax laws, nor are they
41 Op. cit., p. 67.

« Rom. 13, 7.
48 De Iustitia et lure, tr. II. disp. 674, n. 3 (Venice, 1611), III, col. 555 ff.
r
due only from obedience, as though commanded to be paid in any

way, but are things owed in justice: penalties are attached to tax
laws solely that the law may be better observed by all." 44 Since
the tax law determines a debt in justice, Molina maintains that
payment must be made even though no tax collector actually de
mands payment. He concludes his argument by citing the usual
texts of Scripture.45
3. Suarez (1548-1617). Suarez devotes six chapters of his
monumental work, De Legibus, to the question of taxes. He begins
by giving the division already referred to, namely, real, personal,
and mixed.46 Before discussing the obligation imposed by a just
tax, Suarez remarks that there is no question about the obligation
imposed by real taxes. It is to be remembered that he defined a real
tax as one which is imposed on immovable goods and their fruits and
is to be paid annually. Even though this definition is very similar
to the definition of a modern property tax, Suarez meant something
quite different. This is evident from the example he gives of a real
tax: "Thus are usually designated the pensions paid to the kings and
princes from lands and fields which in the beginning were given to
them (the kings and princes) for their maintenance but which they
gave to others as fiefs." 47 In other words, a real tax as defined by
Suarez, is nothing more than a ground rent. Suarez points out that
this type of tax is certainly due in strict justice since it is based on
a just contract.
Suarez then considers two questions, the first of which is stated
thus: "Are tax laws purely penal?" After discussing the arguments
for the affirmative opinion, Suarez says: "Nevertheless it must be
said that tax laws are not per se penal laws . . . nor are they made
44 The statement that "taxes are not penalties" is found in several authors
who do not hold the view that tax laws are merely penal, and is adduced as an
argument against the penal law theory. As an argument against the penal law
theory the assertion is weak and indicates a misunderstanding of the opinion
that tax laws are purely penal. No exponent of this theory has ever claimed
that taxes are penalties, nor does the theory necessarily lead to this conclusion.
Cf. Suarez, De Legibus, V, c. XIII, 4.
46 Matt. 22, 21; Rom. 13, 7.
48 Supra, p. 16.
« De Legibus, V, c. XIII, n. 2.
purely penal by the fact that they have a penalty attached to them,
unless the contrary is evident from the words or circumstances of
the law." Suarez calls this opinion "common." 48 The first part
of the answer is simply a statement of the obvious truth that there
is nothing in the nature of a tax law to make it purely penal. To
call this part of the opinion, "common" is quite an understatement.
However, the proof of this statement is important because it contains
the clearest exposition of the teaching of Suarez concerning the spe
cific obligation imposed by a just tax law. Tax laws are not per se
penal laws because "the matter of such laws is a matter of commu
tative justice, and contains as it were a just stipend . . . which is
to be given to the rulers so that they may carry out the duties of
their office." This is evident to Suarez from the text of St. Paul:
"Render to all men whatever is their due," etc.
The arguments for the second part of the answer, namely that
the addition of a penalty does not make the law purely penal, are
presented very forcefully. Suarez argues that a tax law could be
enacted with no penalty attached. If such a law were passed, it
would certainly bind in conscience. The addition of a penalty to
this law would not of itself extinguish the obligation already carried
by the law—the law would now contain a twofold obligation, one
to pay the tax and the other to respect the penalty. The mere fact
that a tax law contains a penalty does not give the subject liberty
to choose either to pay the tax or to undergo the penalty if inflicted,
for if this were true, the addition of the penalty would lessen rather
than increase the efficacy of the law.
It is to be noted that Suarez argues from the hypothetical de
crease in the efficacy of the law, not from a possible lessening of the
obligation of the law. By definition, a purely penal law imposes less
obligation than other laws, hence it would not prove anything to
claim that tax laws could not be purely penal because they would in
that case contain less obligation. The point Suarez makes here is
that ordinarily the purpose of a penalty is to increase the efficacy
of the law, in other words, to insure the observance of the law.
Therefore the normal interpretation of penal laws cannot be such
** ibid., a. 3 ff.
i
r
that it nullifies the ordinary purpose for which penalties are added
to laws.
Suarez does admit the possibility of purely penal tax laws, but
before he will grant that any tax law is purely penal, the fact must
be "evident either from the words or circumstances of the law."
And regarding tax laws, he does not admit that this fact is evident.
"I judge," he says, "that these laws which impose taxes under pen
alty are mixed laws and hence per se oblige in conscience to the pay
ment of the tax." In establishing this opinion, Suarez repeats the
argument in the preceding paragraph and adds the following: "Since
this is a matter of justice and so pertinent to the common good, the
object (materia) of such laws very strongly demands an obligation
of this type. It is indeed morally necessary for the conservation and
governing of the republic." 49
In a subsequent chapter, Suarez discusses the second question.
He has already presented the proofs for his opinion that per se tax
laws do oblige in conscience to the payment of the tax, now he asks :
"Do tax laws oblige in conscience to the payment even though pay
ment is not demanded?" 50
Suarez first remarks that it is certainly possible for a legislator
to enact a tax law in such a way that it would, not oblige before
payment is demanded, and it is just as possible for the legislator to
enact a tax law that would oblige before payment is demanded.
There is nothing in the nature of a tax law to prevent either mode of
enactment. The second mode would not be unjust nor impose too
great a burden on the subjects, since "a tax is imposed as a just debt
and is due in justice; but to order the payment of a debt without
reference to a particular demand is not unjust nor does it impose
too great a burden."
Since there are at least two possible ways of considering the
obligation it is to be expected that authors will be found for each
side. Indeed, since some authors make a distinction between the
obligation imposed by old tax laws and that imposed by new laws,
Suarez gives three opinions. Only the opinion held by Suarez him-
*9 Ibid., n. 5.
<i0 Op. cit., XVIII.
self will be considered here. Suarez says: "The third opinion with
out distinction affirms that tax laws oblige to the payment of the
tax even though it is not demanded." 51 This opinion is based on
the following reasons: (1) A just law obliges in conscience without
any admonition. (2) A just tax is due in justice; but everyone is
obliged to pay his just debts, even though payment is not demanded.
It is in connection with this second reason that Suarez enlarges on
what he has said about the obligation to pay taxes being founded in
commutative justice. "Perhaps someone will say that taxes are not
due from justice but at most from obedience to the law. But this is
plainly false and against all the doctors who confess that when there
is an obligation of paying taxes, it is an obligation of justice." In
proof of this statement, Suarez appeals to the text from St. Paul
quoted above, and also to the words of our Lord: "Render therefore
to Caesar the things that are Caesar's." 52 According to Suarez this
statement of our Lord means that taxes must be paid for the same
reason that things belonging to someone else must be returned to
him. "Furthermore," he continues, "a human law does not oblige
immediately from the virtue of obedience itself, but places the act in
its proper species of virtue according to the nature of the matter
and the motive or reason for prescribing the thing; in this case the
matter of the law imposing a tax is a matter of justice, and the
motive for prescribing it is that equity of subjects and rulers be
preserved."
Of the thirty or so pages given to the subject of taxes, Suarez
devotes less than a single page to the specific virtue involved in the
paying of taxes. Yet there is no doubt that he is to be classed
among those who hold that all taxes oblige in virtue of commutative
justice.
4. Bonacina (d. 1631). Although Bonacina makes a distinction
between the obligation of paying taxes on the necessities of life and
the obligation of paying other taxes, he is rightly classed with those
who hold that all taxes are due in commutative justice. The reason
for this classification will be seen below.
61 Ibid., n. 4.
52 Matt. 22, 21.
rH
Bonacina's first proposition reads: "Those who defraud just

taxes (vectigalia) imposed on things to be sold (pro mercibus) sin
and are bound to make restitution." 53 He calls this opinion "more
common and more probable." As the proposition is worded it covers
only "vectigalia pro mercibus," but in the proof of the proposition,
Bonacina extends the obligation to "tributa." The only taxes not
included in the proposition are "vectigalia pro usualibus," which he
treats separately.
The proof of the first proposition is stated thus: "Those who trans
gress a just tax law commit sin; but tax laws (lex vectigalium) are
just. Furthermore, that which is justly demanded cannot be de
frauded without injustice, . . . but taxes (vectigalia) are justly de
manded ; therefore they cannot be evaded without injustice, and from
the violation of justice there arises an obligation to make restitution.
Furthermore . . . the Republic has the obligation in justice to sup
port him who labors for the good of the Republic; but the prince
labors for the Republic, therefore the Republic is bound to support
him: but taxes (vectigalia autem et tributa) are imposed in order
to support the prince."
The second proposition concerns the obligation of paying taxes
imposed on the necessities of life. "Those who defraud taxes im
posed on the necessities of life (pro usualibus) probably can be
excused from mortal sin and from the obligation of making restitu
tion." M
The fundamental reason for this opinion is: "because by the
exaction of these taxes the subjects are burdened more than they
should be." Such taxes would be unjust and would not bind in
conscience. For this reason Bonacina says nothing about an obliga
tion to submit to the penalty. Thus Bonacina's second proposition
does not militate against the universality of the first. It is signifi
cant too, that the phrase "just tax" is found in the first proposition
but in the second the word "just" is omitted.
5. Laymann (1574-1635). Laymann is quite definite in his
53 De Morali Theologia, "Tractatus de Restitutione," disp. II, q. IX, n. 3

(Venice, 1687), II, p. 449.
i* Ibid., n. 5.
^
teaching concerning the obligation imposed by tax laws. He asks

the question: "Whether taxes (tributa & vectigalia) must be paid
in conscience even if they are not demanded, and whether those
who do not pay are bound to make restitution?" 55 He first gives the
milder opinion of "not a few doctors" who teach that taxes need
not be paid unless payment is demanded. His own opinion is the
"more common" doctrine which holds that, "if it is evident or if it
is more probably to be presumed that the tax is just, there is an
obligation of paying the tax, even though through error or a similar
reason the officials do not ask for payment." The basis for this
opinion is the text from St. Paul,56 and the following argument from
reason: "The payment of taxes is founded in commutative justice,
which demands that princes and the public magistrates receive com
pensation from those who benefit by labors undertaken in the com
mon interest." An unjust tax does not bind in conscience, nor does
a tax that is probably unjust except in cases where scandal would
be given by disobedience.
The above teaching may also be ascribed to Mansi (d. 1769)
who edited an abbreviated form of Laymann's work in 1760." Mansi
added excerpts to this from the Consiliorum Moralium Liber Singu-
laris of Roncaglia (d. 1737) which in the question of taxes at least,
agree substantially with the doctrine of Laymann.58
6. Lugo (1583-1660). Lugo is probably the most misunderstood
theologian who has ever written on the subject of taxes. He has
been quoted in such a way as to give the impression that in his opin
55 Theologia Moralis (Venice, 1718), III, tr. 3, pars 1, cap. 3.

56 Rom. 13, 7.
57 Cf. Laymann, Theologia Moralis (ed. J. D. Mansi—Padua, 1760), loc. cit.
This edition was prepared at the request of the celebrated publisher Remondini
who boasts in the preface that it is the first edition with an index. The truth
is that the edition of 1718 had an index which in the matter of "tributum" at
least, is more accurate than the index of which Remondini says: "... nunc
primum effeci."
68 Sporer (d. 1714) copies Laymann so faithfully that it is hardly neces
sary to consider him separately. There is, it is true, some change in the
sequence of ideas and in the wording but a comparison of Laymann with
Sporer will leave no doubt as to the inspiration of the latter. Cf. Sporer,
Theologia Moralis (Venice, 1731), tr. V, cap. V, sec. VI.
5O The Moral Obligation of Paying Just Taxes
ion tax laws are: (1) purely penal; 59 (2) obligatory in virtue of
legal justice; 60 (3) obligatory in virtue of commutative justice.61
This confusion can be traced to Lugo's treatment of the question,
which is indeed open to misunderstanding.
Lugo's first concern is with the question: Do tax laws oblige in
conscience before payment is demanded? The last phrase of the
question is important because one who answers this question in the
negative may or may not hold that there is an obligation in con
science after demand has been made.62 Lugo himself does not seem
to appreciate this point, for even granting that he is relying on
Sanchez and Diana for the information, he cites Angelus, Navarrus
and Beia in favor of the opinion that there is no obligation in con
science of paying taxes before demand for payment has been made.
But as was seen, these three authors maintain that there is no obli
gation to pay taxes even after demand has been made.63 To add to
the confusion, Lugo says of the negative opinion: "The argument
used by many is that tax laws are at most penal, which do not oblige
to sin but only to the penalty." If this argument is valid it supports
the opinion that there is no obligation in conscience to pay taxes
either before or after demand for payment has been made. But it
is evident from what Lugo says later that the sole question under
consideration in this place is the obligation before demand for pay
ment has been made.
Lugo states the affirmative opinion thus: "The contrary opinion,
which is commonly held, is that there is an obligation to pay taxes
before demand. . . . This opinion is proved first from Scripture
which supposes a debt in conscience, Rom. 13. For this is also why
59 Cf. Berardi, Praxis, II, p. 176; Genicot, Inst. Theol. Mor., I, n. 574.
60 Cf. Sabetti-Barrett, Compendium Theologiae Moralis (New York, 1939),
n. 174. The same may be said of most of the continuators of Gury.
61 Cf. St. Alphonsus, Theol. Mor., III, 616.
62 De Iustitia et lure, disp. XXXVI, sect. IV, n. 38 (Lyons, 1670), II, p. 506.
63 Angelus, Beia and Navarrus hold the opinion that tax laws are purely
penal, i.e., that they impose an obligation only to submit to a justly inflicted
penalty. A fortiori they would hold that there is no obligation of paying a tax
before demand is made, hence Lugo's citation is not incorrect but it is in
accurate. In this respect, Lugo could have profited by the example of Beia
who handles a similar situation very accurately. Cf. pp. 28, 30, 31.
\
you pay tribute, for they are the ministers of God, serving unto this
very end. Render to all men whatever is their due; tribute to whom
tribute is due; taxes to whom taxes are due. . . . The reason is clear,
because taxes are not due as a penalty but as a stipend due to the
prince from natural law . . . however, the amount of the stipend
must be determined by positive law unless it has been determined
by a pact." "4
Up to this point, Lugo has merely presented the status questionis.
He prefaces his own consideration of the question with two state
ments which he considers certain: (1) An unjust tax does not oblige
even when payment is demanded. (2) A just tax obliges in con
science in the way determined by the legislator. If the law orders
payment to be made before demand for payment is made, there would
be an obligation in conscience of complying with the law in this
matter. "Therefore," continues Lugo, "the whole difficulty is whether
de facto tax laws are such that they require the subjects to pay taxes
spontaneously and without any other petition for payment, and
whether a law thus enacted would de facto be so just that it would
oblige the subjects in conscience, and would impose the further
obligation of making restitution in cases of disobedience." 6B
Lugo favors the opinion that tax laws do not bind unless demand
for payment has been made. He does not say explicitly that he
holds this opinion or even that it is probable, but he does argue very
strongly against Vasquez that it is possible to have a law enacted
in this way. Vasquez maintained that just as no custom could be
introduced which would render the revenue of the church insufficient,
so too in civil law there could be no custom which would deprive the
king of sufficient income for his own needs and for carrying on the
work of governing.66 Furthermore, argues Vasquez, a custom must
be known and in some way approved by the king before it can have
the force of law. But when taxes are secretly evaded the prince is
not aware of the evasion nor can his consent be presumed because
when the evasion is discovered he demands payment and inflicts
64 Op. di., n. 38.

85 Ibid., n. 40.
66 Cf. Gabriel Vasquez, De Restitution (Lyons, 1631), cap. 6, para. 3,
dub. 2, n. 26.
penalties on those who have not paid or who have hidden things
that should have been taxed. Lugo answers that these arguments
do not prove the impossibility of the opinion. In the first place, the
revenue derived from tax laws which do not oblige unless payment
is demanded, may be sufficient. In fact, more and heavier taxes are
imposed because it is foreseen that some will not pay unless pay
ment is demanded. Thus in practice sufficient revenue is assured.
In the second place, the consent of the prince does not seem to be
necessary, "because," says Lugo, "a secular law which is not ac
cepted by the people does not oblige, as I hold (ut suppono)." And
regarding tax laws, Lugo continues, "The custom of all conscien
tious men who do not spontaneously go to the tax collectors and
offer to pay taxes shows clearly enough that the law is not otherwise
accepted by the people." But even granting that the custom of
not paying taxes unless demand for payment is made, must be known
and approved by the prince, Lugo maintains that this knowledge
and consent are present. The fact that the taxes are increased to
make up for loss through non-payment, proves that the prince knows
some will not pay. As for the consent, Lugo says: "I once heard
the most prudent King of Spain, Philip II, answer his ministers who
were complaining that many defrauded taxes, Leave them alone, for
they are only stealing from themselves; which response indicates
sufficiently that the subjects are but using their right when they do
not pay taxes unless payment is demanded." 8T This is one of the
few instances where an author gives direct evidence of the legislator's
intention concerning the binding force of tax laws. It is to be noted
that the evidence is used by Lugo, not to prove that tax laws are
purely penal, but to prove that there is no obligation of paying taxes
until payment is demanded.
After answering the objections of Vasquez, Lugo presents the
following argument which definitely establishes Lugo's position on
this question. "If taxes were paid in their entirety by all the sub
jects even before demand, without doubt the amount collected would
exceed that which is due to the king from the subjects, since de
facto that amount suffices which is collected only after demand for
87 Op. at., n. 41.
,
payment has been made. ... A law therefore which would oblige
the payment of taxes before demand would not be just as far as
that circumstance is concerned, because it would oblige payment of
an amount greater than the king's necessities. Hence, in order that
the law be just and binding it must oblige only to that amount
which can be collected from taxes paid after demand for payment
has been made."
The only objection that Lugo can see to this argument is that
those who do not pay taxes (because they were not asked in par
ticular) fail to satisfy their natural obligation of contributing to the
necessities of the king. Lugo answers: "It is per accidens that a
person is exempted in a particular case: but taxes should be imposed
in such a way that at least per se all contribute equally, not in such
a way that per accidens some cannot be exempted." 6S He then
points out that many are exempted from paying taxes because of
their nobility or for some other reason and yet this fact does not
render the tax laws unjust.
Lugo closes the discussion of this question, i. e., the obligation
before demand, with the counsel of Molina: "Ante factum the peo
ple are to be advised to pay taxes; but post factum, i.e., after the
tax has been evaded, the confessor should not oblige a penitent to
make restitution if the penitent certainly or probably has persuaded
himself that in the multitude of taxes which he has paid there were
some unjust taxes, or that the number of taxes itself is too great and
excessive, or that, having regard for his state in life and his business,
the penitent judges that he has sufficiently contributed to the public
necessities." co Lugo cautions that this advice should be used "pru
dently and with the greatest skill."
The above review of Lugo's work leads to the following conclu
sions: (1) Up to this point, Lugo has been considering the binding
68 Op. cit., n. 42.

69 Ibid., n. 43 ; cf. Molina, De Justitia, III, disp. 674, n. 9, concl. 5. Many
authors refer to this "consilium" of Molina but few give the correct impression
of what Molina really said. It is to be noted well that the post factum leniency
is based on certain or probable injustice in tax laws or on the fact that the
penitent has contributed sufficiently to the needs of the state. It is not based on
the probability of the purely penal law theory.
force of tax laws before a particular demand for payment has been
made. (2) Lugo holds the opinion that there is no obligation in
conscience of paying taxes before demand has been made.
It would be taking too much for granted to claim that Lugo
considers tax laws purely penal before demand. He does not dis
cuss the point and the main reason he gives for holding that there
is no obligation before demand seems to exclude the penal law theory
altogether. The penalty in a purely penal law is a means of coer
cion. It is attached to the law in order to assure observance of the
law, even though the legislator does not intend to bind transgressors
under pain of sin. Lugo maintains that a tax law would be unjust
if it obliged to payment before demand because the amount thus
collected would be more than the state could justly demand. Hence
a legislator would act unjustly were he to penalize those who failed
to pay because they were not asked for payment. As Lugo says:
"A law, which de facto forces (and it might be added—even by
means of a penalty) the payment of taxes before demand would not
be just as far as that circumstance is concerned." 70
Lugo devotes but a single paragraph to the discussion of the
obligation imposed by a tax law after demand for payment has been
made. The paragraph is not very clear due to the fact that the
first sentence begins: "It is inferred, first," etc., which gives the
impression that what follows immediately is the opinion of Lugo.
But the last sentence of the preceding paragraph evidently belongs
to this one, so that the paragraph would begin: "From this teach
ing and according to the mind of these doctors, it is inferred," etc.
The first inference is, "that the same thing is to be said under the
same circumstance (reference is to the advice of Molina) whether
the tax was not paid because payment was not demanded ... or
whether it was not paid because the subject hid himself or the
merchandise, or lied, in which case although he sinned against truth,
he did not sin against justice and therefore does not incur the obliga
tion of making restitution. Molina expressly holds this in the num
ber cited, together with others cited by Sanchez, who maintains this
even though perjury was used: however I think this is to be inter-
'Op. cit., n. 41.

preted as meaning only when the subject believes that the tax or tax
collections exceed the necessities for which they are given to such
an extent that they would not have to be paid even after demand:
for otherwise it seems that once payment is demanded, it could not
be evaded." "
Lugo's own opinion regarding the binding force of tax laws is
contained in the last part of this passage. To him it seems that the
subject must pay a tax after demand for payment has been made
unless "the subject believes that the tax or tax collections exceed
the necessities," for which the tax was imposed.
7. Lacroix (1652-1714). Lacroix's teaching on the subject of
the obligation imposed by just taxes is very similar to that of Lay-
mann but he is a bit more original than Sporer who also followed
Laymann. 72 Lacroix teaches that it is "more probable that taxes
oblige in conscience and indeed from justice." 73 He does not say
what kind of justice is involved, nor does he speak of an obligation
of making restitution but his argument from reason indicates that
he means commutative justice. "A tax is not due as a penalty but
since the magistrates and princes serve the Republic they have a
strict right to demand those things which are necessary. Therefore
those who defraud this right commit an injustice."
8. Concina (1687-1756). Concina is a probabiliorist who is quite
strict in this matter. He says: "The sensus communis of theologians
condemns this opinion (the purely penal law theory) as lax, false
and repugnant to the word of God." 74 He, too, compares the state
to a servant and concludes: "Therefore the stipend, just as a serv
ant's wage, is due in strict justice."
9. Billuart (1685-1757). Billuart is remarkable not only for his
clearness but also for the fact that he is one of the first theologians
to mention "legal justice" in connection with the obligation of pay
ing taxes. He says: "To defraud just taxes, whether payment is
demanded or not, is ex genere suo a mortal sin against justice, not
merely legal justice but also against commutative justice and hence
71 Op. cit., n. 44.

72 Cf. supra, p. 62, note 4.
73 Theologia Moralis, III, pars II, n. 269 (Coloniae, 1739), I, p. 343.
™Theologia Christiana Dogmatico-moralis (Naples, 1774), VI, p. 309.
'
'
binding to restitution." 75 In support of this thesis, Billuart gives

the usual proofs from Scripture and the following argument from
reason: "By the very fact that the people have transferred the au
thority and administration of the republic to the prince, they tacitly
promise to give him a just stipend and whatever is necessary for
carrying on the business of the state." But the tax law is nothing
else than the apportionment of this general obligation incumbent
on the whole people, into the particular obligations which each citi
zen must bear according to his ability. Thus the duty of paying
taxes is fundamentally a duty of natural law, even though the exact
amount to be paid by each is determined by civil law. Billuart
likens the obligation to the obligation of paying tithes, which are due
in commutative justice. Since the tax law imposes a debt in jus
tice, per se the law is binding whether payment is demanded or not.
However, Billuart admits that custom may temper the obligation
in this respect: "... in certain localities there is a custom of not
paying taxes unless payment is demanded: therefore a merchant
passing through those places is not bound to pay taxes if no one
asks for payment; provided there is no deceit." Billuart answers
the objection that tax laws are merely penal laws by saying that this
view contradicts St. Paul, "who says that taxes are paid not only
because of the wrath but for conscience' sake." Furthermore, since
the legislators may and do intend that other laws bind in conscience,
there is no reason why they should not intend that tax laws bind in
conscience. Billuart maintains that there is a special reason why
legislators should intend that tax laws bind in conscience. "This
obligation in conscience is the very reason why many who otherwise
would not pay actually do pay taxes. Nor does the imposition of
a penalty take away the obligation unto sin (culpam), but rather it
presupposes this obligation since a penalty is not inflicted except for
sin." Billuart mentions another objection to his thesis: "The trans
gression of the law would be a sin only of disobedience and hence
not binding to restitution." He answers that the tax law deter
mines a just stipend for the ruler and also what is justly needed
75 Summa S. Thomae hodiernis academiarum moribus accommodata, VI,

dissert. IX, art. VII, para. II (Lyons, 1874), VI, p. 215 £f.
for carrying on the business of the state, hence the law obliges in
justice. /
10. Patuzzi (1700-1769). Patuzzi was a contemporary and
fellow countryman of St. Alphonsus. As an ardent probabiliorist,
Patuzzi was rather violently opposed to St. Alphonsus' equi-proba-
bilism, but the two theologians agree substantially in their teaching
on the obligation imposed by tax laws.76 According to Patuzzi, the
relations between the citizen and the state are comparable to the
relations between employer and employee.77 The state, i. e., the
government, is hired by the citizens. It has certain obligations
which require the expenditure not only of time but also of money.
In return the state has a strict right to compensation from the em
ployer, i. e., from the citizens. Patuzzi looked upon the tax laws
of his day in a more kindly light than did most of his contempo
raries. He says: "Generally speaking taxes are to be paid by the
subjects, and the providence and justice of the prince imposing
taxes are to be presumed." He does not endorse the leniency coun
seled by Molina, Lugo and St. Alphonsus. Concerning the purely
penal law theory, Patuzzi says: "The opinion of some who persuade
themselves that they do not burden their consciences by not paying
taxes . '. . must be considered false and erroneous." Navarrus is
singled out for special condemnation: '"The opinion, which it seems
was first taught by Navarrus, namely, that no penal law, either
ecclesiastical or civil, obliges in conscience, must be considered en
tirely false."
11. Voit (1707-1780). Voit maintains that it is "by far more
probable" that taxes must be paid under pain of grave sin, even
though payment is not demanded. Those who fail to pay taxes must
make restitution.78 Voit adds no new arguments but mentions that
the theory of those who hold that tax laws are purely penal seems
to lack solid foundation.
12. St. Alphonsus (1696-1787). St. Alphonsus proposes the
question: "Do those sin who defraud taxes (gabellas) and are they
70 Cf. Austin Berthe, Life of St. Alphonsus (Dublin, 1905), II, 142.
77 Elhica Christiana sive Theologia Moralis (Venice, 1770), I, p. 90.
78 E. Voit, Theologia Moralis, I, 855 (Augustae Taurinorum, 1833), p. 372.
bound to make restitution?" "° It might be argued that since the

saint uses the word "gabella" in forming the question, the answer
will apply only to those taxes known strictly as gabellae.80 How
ever, in the discussion of the question the terms "gabella" and
"vectigal" both appear in such a way as to leave no doubt that the
Saint uses these two terms synonymously. Although the word
"tributum" does not appear in the discussion—except in a quotation
from the epistle to the Romans—it is also certain that St. Alphonsus
uses the word "gabella" in a general sense that includes "tributum."
We have both direct and indirect proof for this statement. It is
proved directly by the fact that the above question is the third of a
series of questions introduced by the sentence: "Several questions
are to be solved regarding the matter of taxes (circa tributorum
materiam)." 81 The indirect proof will be pointed out below. This
wide use of the words "gabella" and "vectigal" was noted more than
a century before St. Alphonsus, by Molina.82
The saint answers the proposed question as follows: "The first
opinion, most common and more probable, is in the affirmative." In
other words, those who defraud taxes commit sin and are bound to
make restitution. After giving the proof from Scripture, St. Al
phonsus says: "The proposition is proved secondly from reason,
because, just as the king is bound to work for the good of the people
by administering justice and performing other duties, so on the
other hand are the people bound from justice and natural law to
pay taxes for the maintenance of the prince." This argument is an
indirect proof that St. Alphonsus uses the terms "gabella" and "vec
tigal" in a wide sense for if the argument is valid it certainly proves
there is an obligation of paying not only "gabella" and "vectigalia"
in the strict sense, but also an obligation of paying all taxes.
7aTheologia Moralis (ed. Gaude, Rome, 1907), III, 616.

80 According to Suarez, "gabella" is what we call a sales tax today. Cf.
Suarez, De Legibus, V, c. XIII, n. 2.
81 Op. cit., 614.
82 Cf. Molina, De Iustitia et lure, tr. II, disp. 662, n. 1: Tametsi vectigal
& gabella, aliquando sumantur latius, & improprie, nempe ut tributorum presse
sumptum etiam comprehendunt, maxime vocabulum gabella. Cf. also, Lugo,
De Iustitia et lure, disp. XXXVI, sec. I, n. 2.
^
It is to be noted that St. Alphonsus speaks of an obligation in

"justice" but does not mention commutative justice. However
since he does mention the obligation of making restitution—an obli
gation which binds only in the matter of commutative justice—it is
clear that he is speaking of commutative and not legal justice.83
It seems that St. Alphonsus was very anxious to give the nega
tive opinion every consideration for he develops the arguments in
favor of the penal law theory at much greater length than he does
the arguments for his own opinion. Nevertheless, he concludes his
presentation of the purely penal law theory with these words:
"Whether for these reasons (which moreover, it seems are not to be
despised) the opinion is sufficiently probable, I leave to the judg
ment of those wiser than myself." 84
13. Gousset (1792-1866). Gousset is the first of the nineteenth
century authors to hold that taxes are due in commutative justice.
He says: "There is an obligation in justice for all the subjects to
contribute to the expenses of the state according to the ability and
means of each." 85 Besides the argument from Scripture, Gousset
relies on the statement of the Catechism of the Council of Trent to
prove his assertion.88 The Catechism declares that those who do
not pay taxes are guilty of the crime of rapine. However, Gousset
warns confessors to be prudent in using the expression of the Cate
chism because of the discredit into which most of the tax laws of
his day had fallen. Gousset does not agree with the judgment of
the people in this matter, although he will allow confessors to leave
the people in good faith. If the penitent asks about his obligation,
the confessors must tell him plainly that he has an obligation to
observe all the laws and to pay all taxes, both direct and indirect,
and that he must make restitution if he fails to pay. A person who
83 Cf. op. cit., III, 547: Restitutio igitur est actus justitiae; sed addendum
est: commutativae. Non enim debetur restitutio ex laesione justitiae legalis,
quae respicit jura legum et poenas; neque ex laesione justitiae distributivae,
quae respicit merita personarum.
84 Op. cit., 616.
85 S. E. le Card. Gousset, Thiologie Morale (Paris, 1869), I, p. 504.
88 Part III, chap. VIII, q. X: "Amongst those guilty of this crime of rapine
are included persons who do not pay . . . customs, taxes, tithes, and other such
revenues." Translated by J. Donovan (Dublin, 1908), p. 383.
in bad faith has defrauded the government of a large amount in

taxes, may make restitution to the poor because of the moral im
possibility of making it to the government.
14. Gury (1801-1866). According to Gury, "laws which im
pose taxes are generally not merely penal, but oblige in conscience." "
The argument from reason which Gury uses is substantially that
given by St. Alphonsus, whom Gury cites. The similarity is to be
expected since Gury informs the reader in the preface that the pur
pose of his work is "to present his (i. e., St. Alphonsus') doctrine in
a new form and order." This profession of adherence to the doc
trine of the saint is one of the reasons why Gury has been placed
in the category of those who hold that taxes are due in commuta
tive justice even though in the principle mentioned above Gury does
not mention either commutative justice or an obligation of making
restitution. However, there are other reasons for this classification.
In number 709 Gury asks the question: "Is the obligation both of
paying customs (vectigalia) or indirect taxes and of making resti
tution according to the amount defrauded, always to be urged under
pain of sin and denial of absolution?" He answers: "The solution
of this question does not lack difficulties; but theologians commonly
agree on the following: The faithful are to be admonished to pay
all taxes diligently. . . . But ordinarily at least, the confessor is
not bound to ask penitents . . . whether they are guilty of defraud
ing taxes lest he put those in bad faith who were in good faith."
This answer proves that Gury held that just taxes—at least cus
toms—were binding in conscience in virtue of commutative justice,
for there would be no question of restitution unless commutative
justice were involved; and there would be no possibility of putting
a penitent in bad faith if there were no obligation. The question
Gury proposes refers explicitly only to indirect taxes, therefore the
answer refers directly only to such taxes. However, since it is com
monly admitted that the obligation of paying direct taxes is not less
binding than the obligation of paying indirect taxes,88 it may be
87 Compendium Theologiae Moralis (Lyons, 1850), I, n. 708 ff.

88 Although some authors hold that indirect taxes are less binding than
direct taxes, no author holds that direct taxes are less binding than indirect
taxes.
-
argued that Gury would hold the opinion that direct taxes oblige in
conscience. This conclusion is further strengthened by the fact
that in the second part of the response to the above question, Gury
says: "They are to be condemned . . . who do not pay taxes (tributa)
which have been in existence for a long time, and which are paid
by all without opposition." The point of this response seems to
be that a certainly just tax certainly binds in conscience, for the
presumption is that a tax which has existed over a long period of
years and which has been paid without protest, is a just tax. It
must be admitted that Gury does not explicitly adhere to the opin
ion that all tax laws oblige in virtue of commutative justice. How
ever, the inferences drawn above seem to be logical enough to war
rant the claim that actually he did hold this opinion. It would
certainly be misleading to quote him unconditionally in favor of
the theory that taxes oblige in virtue of legal justice.
The impression that Gury did favor the legal justice theory is
given by some of the later editions of Gury's work published by
"continuators." These editions and continuations of Gury's Com
pendium form an interesting study in textual manipulation. Gury
died in 1866. Probably the last edition of his book which contains
his original teaching on the obligation imposed by tax laws, was pub
lished in Rome by Melandri in 1872.89 In 1868 the fourth German
edition was published by an anonymous editor at Ratisbon. In
number 737 (which was 708 in the earlier editions) we read: "Leges
quae versantur circa tributa, generatim spectatae non sunt mere
poenales sed obligant in conscientia." This is exactly the same as
the text found in the edition of 1850, which was the edition used in
this study. But the following question is asked in a footnote in the
edition of 1868: "Sed ex justitia commutativa, an ex justitia legali?"
The editor does not answer the question but simply states that
authors differ as to the obligation imposed by both direct and in
direct taxes.
89 The writer does not claim to have seen all the editions of Gury's work.
He collated fifteen editions and continuations which he was able to locate.
There are certainly others. Hence it may well be that the edition of 1872 is
not chronologically the last edition which represents Gury correctly, just as the
edition of 1869 may not be the first to show signs of alteration in the matter of
taxes.
In the edition of 1869 published at Rome by Ballerini, the text

is the same as Gury's original, but where Gury had stated: "ergo a
pari subditi tenentur in conscientia et ex justitia," etc., Ballerini
added this footnote: "Intellige justitiam legalem qua et principes et
subditi pro sua quisque parte tenentur oneribus societatis ferendis
necessaria praesidia conferre." St. Alphonsus is still cited at the
end of the text.90 The same footnote is found in the Ballerini edi
tion of 1882 published at Rome. The edition of 1898 published at
Ratisbon by Sabetti introduces further changes. Where Gury had
asked whether the payment of indirect taxes was always to be urged
under pain of sin and the necessity of making restitution, this edi
tion has: "An omnino exigenda sit restitutio ab iis qui, legibus tri-
butariis non servatis, Gubernium defraudaverint?" 91 The answer
is as follows: "Resp. neg., probabiliter, tum quia dubitari posset an
leges illae obligent in conscientia, tum quia etsiamsi ita obligarent,
quicumque eas non observarent, laederet sane justitiam legalem et
non justitiam commutativam. Neque huic sententiae deest pondus
auctoritatis." Sabetti then quotes Bonacina, Vogler, Scavini and
Lugo in support of the opinion he has just stated! Gury had quoted
the same authors, not in confirmation of any opinion he himself
held but to give the reader an opportunity to judge for himself what
kind of an obligation is imposed by indirect taxes. In number 710
of the original editions Gury remarks that St. Alphonsus would not
decide whether the penal law theory was sufficiently probable to
allow confessors to act upon it. Then Gury says: "Quamobrem
nobis etiam satis erit, si expositis sententiis nonullorum theologorum
pietate ac doctrina praestantium, pio lectori electionem relinquamus."
Gury then quotes the authors mentioned above, but certainly not
intending thereby to prove that tax laws probably are merely penal
or probably oblige in virtue of legal justice.
In the edition of 1906 published at Barcelona by Ferreres, there
are further changes. The footnote concerning legal justice noticed
in the 1869 edition by Ballerini has now been added to the text. The
90 Ballerini first published Gury's work in 1866 and it is probable that the
changes noted appear in this earlier edition.
91 Gury-Ballerini-Sabetti, Compendium Theologiae Moralis (Ratisbon,
1898), I, 474.
chapter divisions and numbering are those of the 1872 edition. Thus
number 737, IV, reads: "Leges quae versantur circa tributa genera-
tim spectatae, per se non sunt mere poenales, sed possunt in con-
scientia obligare." Gury had said that tax laws generally do oblige
in conscience; Ferreres claims that tax laws may oblige in conscience.
Ferreres uses the same texts of Scripture to prove his assertion as
Gury and St. Alphonsus had used to prove their assertions. The
proof from reason used by Ferreres is interesting.
St. Alphonsus (III, 616):
Probatur 2° ratione, quia, sicut rex tenetur vacare saluti populi,
administrationi justitiae et aliis oneribus: sic contra, tenetur
populus ex justitia et de jure naturali, solvere principi vectigalia
ad eius sustentationem.
Gury (I, 708, IV):
Patet enim ex ratione: princeps enim ad onera Reipublicae fe-
renda tenetur; ergo a pari subditi tenentur in conscientia et ex
justitia ad sustentationem ipsi procurandum, atque media pro
bono communi promovendo necessaria subministranda (S. Lig.,
n. 615, 616).
Gury-Ferreres (I, 737, IV):
Patet enim ex ratione: Princeps enim ad onera reipublicae fe-
renda tenetur; ergo a pari (italics original) subditi tenentur ex
justitia legali (italics original) ad media pro bono communi
promovendo necessaria subministranda (S. Alph., n. 615, 616).
St. Alphonsus and Gury use the argument to prove an obligation in
commutative justice; Ferreres uses it to prove an obligation in
legal justice, and does not hesitate to cite St. Alphonsus for his opin
ion. The least Ferreres could have done was to omit the reference
to St. Alphonsus which is certainly out of place in an argument in
favor of the opinion that tax laws oblige only in virtue of legal
justice.92
92 Iorio, Theol. Mor., II, p. 470 ff, contains practically the same text as Fer
reres: "Patet etiam ex ratione; princeps enim ad onera reipublicae ferenda
tenetur: ergo a pari subditi tenentur ex justitia saltem legali ad media pro bono
communi promovendo necessaria subministranda.—S. Alt. 1. 3, nn. 615, 616.
15. Waffelaert (1847-1931). Waffelaert has been quoted by H.

Davis in favor of the opinion that tax laws are merely penal,93 and
by Tanquerey and J. McCarthy in favor of the opinion that they
oblige only in virtue of legal justice.94 Nevertheless, Waffelaert be
longs in the category of those who hold that taxes are due in virtue
of commutative justice.
Waffelaert professes to be very independent in the question of
taxes. Speaking of those who held that taxes do oblige in conscience,
he says: "Many of the arguments, both intrinsic and extrinsic, ad
vanced by the authors, either do not touch the point because they
abstract from our public law and from the mind of the legislator or
they are so vague that they do not really demonstrate the nature
and quality of the obligation; therefore we shall not delay by citing
them." 95
According to Waffelaert, two things must be kept in mind in
order to form a sound judgment about the obligation imposed by
tax laws. First, according to the public law of the state, the
amount of money to be spent and the way it is to be collected
are both determined by deputies elected by the people. Waffelaert
concludes from this fact that the people oblige themselves to give
the deputies whatever is necessary. Those subjects who do not
have the right to vote, oblige themselves mediately to pay their
share by the very fact that they share in the protection and other
advantages of the state. The second thing that Waffelaert says is
necessary to keep in mind is the fact that in Belgium the mind of
the legislator concerning the obligation imposed by tax laws is very
evident from the laws themselves, and from this source it is clear
that the laws impose an obligation of paying taxes and sometimes
of declaring things subject to taxation, especially if the tax is in
direct. In developing this argument, Waffelaert does contribute to
a new line of thought in support of the theory that taxes are due in
93 Moral and Pastoral Theology, II, p. 33S, footnote 1.

84 Tanquerey, Synopsis Theologiae Moralis (Paris, 1937), III, n. 560, note;
J. McCarthy, "Smuggling and Profiteering," The Irish Ecclesiastical Record,
LVIII (1941), 555.
™De Justitia (Bruges, 1886), II, p. 317 ff.
A
commutative justice.96 He points out that once the state has de

termined the exact amount of taxes that must be paid by an indi
vidual, it has the right to institute not only penal action but also
civil action against delinquents. The fact that the state has the
right to sue for payment in the civil court is proof, for Waffelaert,
that the state has a strict right to the money. As a consequence
Waffelaert says: "Hence it seems certain to us that our tax laws (in
Belgium) cannot be called merely penal, at least it cannot be said
of them generally." " In number 420, Waffelaert repeats this point:
"Therefore our tax laws are not merely penal, and they do impose
some immediate obligation in conscience."
It is surprising therefore, to find H. Davis state without the least
hesitation: "Genicot, Waffelaert (italics added) . . . consider the
law purely penal." 98 Waffelaert continues: "But it may be asked
further, of what kind is the obligation—is it of obedience only, or
of legal justice, or of strict justice." In his answer he distinguishes
between the obligation of declaring things subject to taxation and
the obligation of paying the tax; and again between a tax already
legally determined and here and now imposed and exigible, and one
that is not yet so determined. Waffelaert claims that a tax which
may be demanded by civil action is due in strict justice. He bases
this claim on the tacit pact, the laws themselves, and on the mind of
the legislator, all of which things were mentioned above. A tax
that is not determined sufficiently to allow the state civil action in
the matter, is not due in strict justice.
Waffelaert maintains that it cannot be proved that there is an
obligation in strict justice to declare things subject to taxation. If
there is an obligation, it is one of obedience alone. And in this par
ticular point, i. e., concerning the obligation of declaring things sub
ject to taxation, Waffelaert admits the possibility of the tax laws
being purely penal.
Tanquerey is certainly wrong in citing Waffelaert in favor of the
thesis: "Just tax laws per se oblige in legal justice, after the amount
96 Marres, who published his work in 1879, uses the same argument but does
not develop it so well as Waffelaert. Cf. infra, p. 66.
i» Op. cit., n. 419.
08 Loc. cit.
each is to pay has been determined legally." " So also is J. Mc

Carthy wrong when he cites Waffelaert in favor of the opinion that
tax laws oblige only in virtue of legal justice.100
16. Marres. After a brief explanation of the meaning of the
word, "tax," Marres lays down the proposition: "There is an
obligation in conscience from the natural and divine law, binding
all citizens not legitimately exempted, to pay just taxes." 101 It
is to be noted that this thesis says nothing about the kind of obliga
tion imposed by just tax laws; it simply states that there is an
obligation imposed by both natural and divine law. The obligation
may be immediate or mediate (the penal law theory demands a
merely mediate obligation), it may be one of commutative justice
or of legal justice, obedience or piety. Understood in this broad
sense, the thesis certainly has the unanimous approval of Catholic
theologians.
According to Marres, the obligation from the natural law is
based on the obligation incumbent upon the citizens to contribute to
the state those things without which the society cannot exist. Since
modern states cannot exist without revenue in the form of taxes, the
citizens have the obligation in conscience of paying just taxes.
Marres proves the obligation from divine law from the words of
Christ: "Render therefore to Caesar the things that are Caesar's,
and to God the things that are God's." 102 As Marres points out,
Christ was asked about a special tax called "census." This was a
per capita tax imposed by the Romans upon certain conquered peo
ples.103 Christ does not answer the question directly. Instead, He
gives a general principle which places the obligation of paying taxes
(all taxes, it would seem) on the same level as the obligation of
09 Loc. cit.
100 Loc. cit.
101 De Justitia, II, c. II, a. I, para. 4, n. 192 (Ruraemundae, 1879), p.
337 ff.
102 Matt. 22, 21.
103 There may be some doubt as to whether the Greek word xfjvoov
always had this special meaning, but it is certain that the Pharisees and Hero-
dians who asked the question meant just such a tax. Cf. Soto, De Iustitia et lure
(Venice, I5 73), III, q. VI, a. VII.
giving God whatever is His due. Since this latter obligation cer
tainly binds in conscience, so also does the obligation of paying
taxes. The argument from the Epistle to the Romans is weak, be
cause Marres seems to sense that the words of the Apostle prove
more than is contained in the proposition he wishes to prove.
Marres says that St. Paul makes the payment of taxes a profession
of subjection, which according to Marres, it would not be unless there
were an obligation in conscience of paying taxes. Marres also seems
to say that the Apostle likens the obligation of paying taxes to the
obligation of paying a strict debt.104
Marres prefaces his discussion of the kind of obligation imposed
by just tax laws with the remark that in this matter the laws them
selves must be examined in order to arrive at a correct conclusion.
Having made this investigation himself, Marres states: "There is an
obligation in strict justice of paying that tax, when after legal deter
mination (i. e., when the amount a person must here and now pay
has been determined) the state can demand payment by instituting
civil action." 105 Marres argues that if the state has a right to insti
tute proceedings in the civil courts to obtain payment of the tax, the
obligation of paying the tax can in no wise be called purely penal.
If the state had only the right to inflict a penalty, the penal law
theory might be defended, but according to the law (in Holland)
the state has not only the right to inflict a penalty, but it also has
the right to sue for payment in the civil, court. The basis of this
right is the tacit pact whereby citizens oblige themselves to support
the state and to supply whatever is necessary in order to carry on
the functions of the government. Marres is of the opinion that this
argument (i. e., from a tacit pact) is more convincing in modern
governments where the people elect deputies and as it were charge
them with undertaking the care of the state. "One who commands
another to undertake expenses in favor of himself, is bound in strict
104 Op. cit., n. 192. The statement is not too clear: "Propterea etiam
Apostolus specialem obligationem tributum praestandi, quam propria Graecorum
voce teXeW iam commendaverat, postca locutione ex obligatione debitum seu
aes alienum solvendi translata scite elucidat &jtooi8ovai ocpeilao.
105 Op. cit., n. 196.
justice to recompense the person commanded for any expenses that

are made."
The obligation of declaring things subject to taxation is one of
obedience or legal justice.106 Marres does admit that custom may
establish a disjunctive obligation, in other words, make the law
purely penal as far as the obligation of declaring taxable goods is
concerned. He says that if this custom does exist, a legislator who
is elected by the people may not determine otherwise. But in all
cases where there is no custom to the contrary, the laws oblige in
virtue of "obedience or (seu) legal justice," since the legislator has
the right to command and the subjects have the obligation to obey.
17. Prummer. Prummer divides his treatise on the obliga
tion imposed by a just tax law, in the same way as Marres. First
he states as a general principle: "Just tax laws oblige the sub
jects in conscience." 107 Prummer intends to establish by this prin
ciple, only that tax laws impose some obligation—it may be merely
the obligation spoken of by those who hold the purely penal law
theory. He treats the kind of obligation imposed subsequently.
In proving this first general thesis, Prummer meets the same
difficulty with the text of St. Paul to the Romans as did Marres in
proving the same proposition.108 After quoting St. Paul, Prummer
says: "By these words the Apostle indicates two things: (1) taxes
are not to be paid solely because of the wrath, i. e., because of the
fear of the penalty, but also because of conscience; (2) taxes are
to be paid to the princes because they are the ministers of God."
The first implication in the text as understood by Prummer is di
rectly contrary to the opinion that tax laws are merely penal. For
according to the purely penal law theory there is no obligation in
conscience to pay the tax, but only an obligation of submitting to a
justly inflicted penalty. Hence if taxes are paid, it is precisely "be
cause of the wrath," i. e., because of the fear that the penalty might
be inflicted. But Prummer says here that the tax is to be paid for
conscience's sake. This interpretation cannot be reconciled with
106 It is not clear whether Marres identifies these two virtues or not. He
refers to "obedientia seu justitia legalis."
107 Manuale Theologiae Moralis, I, n. 289 ff.
108 Cf. supra, p. 67.
v
the purely penal law theory which nevertheless Prummer does not
wish to exclude since he states of the proposition: "All theologians
from the time of S_ Justin Martyr in the second century up to the
present day, agree."
In number 293 Prummer takes up the problem of the kind of
obligation imposed by tax laws. In presenting the opinion that
taxes are due in commutative justice, he gives as the intrinsic argu
ment: "the implicit contract which is said to exist between prince
and people." He draws an indirect argument from the fact that
according to the common teaching, ecclesiastical taxes are due in
commutative justice. "Therefore," he says, "the same thing is to
be said of just civil taxes." He does not mention the argument from
Scripture in this place but after presenting the other opinions con
cerning the obligation imposed by tax laws, he says: "Theoretically
the first opinion (i. e., commutative justice) seems to be preferred,
both because of the weight of authority, especially of Sacred Scrip
ture (italics added) and on account of the intrinsic arguments."
It is to be noted that Prummer is not consistent in using Sacred
Scripture as an authority having special weight in proof of the com
mutative justice theory, when he has already said, in effect, that
Sacred Scripture proves only that tax laws may be purely penal
laws. If Sacred Scripture proves the commutative justice theory,
there is no room for discussion about the purely penal law theory.
18. Bouquillon (1840-1902). Bouquillon agrees substantially
with Waffelaert in his teaching regarding the obligation imposed by
just tax laws, namely, that tax laws oblige in virtue of commutative
justice. However, Bouquillon places some value on the authority
of previous theologians in proving his opinion, whereas, as was
noted,109 Waffelaert thought very little of the arguments advanced
by those who before his time held that tax laws imposed an obliga
tion in commutative justice.
Bouquillon first states that just tax laws certainly oblige the
subjects in some way.110 He proves this general thesis from Scrip
ture and the teaching of the Fathers. Of the Scripture argument,
10° Cf. supra, p. 64.

110Theologia Moralis Fundamentalis (Bruges, 1890), p. 422 ft'.
he says: "We are taught by the Sacred Scripture that taxes (tribu-
tum, census et vectigal) are owed to the power established by God,
which it is wrong to resist." Bouquillon is one of the few theolo
gians who appeals to the teaching of the Fathers to establish an
obligation in conscience of paying taxes.111 He cites Tertullian, St.
Augustine, St. John Chrysostom and St. Irenaeus.112
In a second thesis Bouquillon states: "The members of the com
munity are directly and absolutely obliged to make the contribu
tions justly prescribed; this obligation is not disjunctive, i.e., either
pay the tax or pay the fine: in other words, per se tax laws are
moral, not merely penal." In proof of this thesis, Bouquillon states:
"A priori it seems entirely reasonable that in a matter of such im
portance the superior should prescribe absolutely whatever is just
and necessary; for if he left it to the option of the subjects either
to pay the tax or to run the risk of being fined, the end (finis) of
the law could not generally be attained, and furthermore, it (i. e.,
giving the subjects this option) would occasion innumerable frauds
and deceits, with great loss to the treasury and detriment to public
morals." His a posteriori argument is interesting because it directly
contradicts the assertions of Berardi, Crolly and others who place
so much emphasis on the "sensus communis" in proving their claim
that tax laws are purely penal. Bouquillon says: "From the most
common opinion of theologians and lawyers, it is evident (italics
added) that tax laws at whatever time, among whatever people, and
under whatever form of government, are moral, i. e., these laws oblige
immediately and directly to the payment of the tax itself; indeed,
tax laws are enacted in this sense by prudent legislators and are
understood in the same sense by the saner portion of the people."
Bouquillon's third thesis reads: "The subjects are obliged to pay
111 Patuzzi also appeals to the testimony of the Fathers. Cf. Etkica Chris
tiana, I, p. 90.
112 The opinion of the Fathers concerning the obligation of paying taxes is
usually found in their commentaries on Matt. 22, 21 and Romans 13, 7. For
example, St. Augustine says in his Exp. quarumdam quaest. in Epist. ad Rom.
72: "If therefore, a man thinks that because he is a Christian he does not have
the duty of rendering tribute or of paying taxes, . . . then he has fallen into a
great error." ML, XXXV, 2083 ; cf. also, St. John Chrysostom, Hom. XXIII,
2 (MG, LX, 616).
taxes not only from legal justice but also from commutative justice,
so that one who does not satisfy his obligation is bound to make
restitution." He argues that, "expenses made in favor of the com
munity by those who lawfully work for the community devolve on
the whole community and on each member thereof according to the
ability of each to pay." Since this argument is not based on the
particular form of government which may exist in a country, but
on the fact of expenses legitimately made by the government (by
any form of government) in favor of the community, the argument
is intended to cover any form of government that may de facto pre
scribe the paying of taxes. However, Bouquillon points out that
the force of the argument is more easily seen, "where the people have
a greater part in the administration of the republic."
According to Bouquillon, the obligation of declaring things sub
ject to taxation is not to be taken strictly but may be interpreted,
"according to the accepted custom." But per se there is such an obli
gation arising from the virtue of obedience.
20. Merkelbach (b. 1871). Since Merkelbach does not add
any new arguments to support the opinion that tax laws oblige in
virtue of commutative justice, it will not be necessary to present his
argumentation.
His first thesis is to the effect that de iure and per se, tax laws
oblige in conscience, at least after the portion each one is to pay has
been legitimately and justly determined.113 This thesis is merely
a statement of the evident truth that tax laws can oblige in con
science. Merkelbach's second thesis reads: "De facto at the present
time, taxes—at least in many countries—oblige in conscience." He
expressly cautions the reader that the thesis does not include Eng
land and English-speaking America.
In number 628, Merkelbach takes up the quality of the obliga
tion imposed by tax laws. He gives the three main opinions, namely,
that tax laws are purely penal, that they oblige in virtue of commu
tative justice, and finally that they oblige in virtue of legal justice.
Then he makes the following statement which shows that his ad
herence to the commutative justice theory is not too ardent: "In
113Summa Theologiae Moralis (Paris, 1938), II, 626 ff.

Belgium it seems more conformable to the law to assert that there is

an obligation in commutative justice to pay taxes already legally de
fined, concerning which the state may institute civil action." As for
the obligation of declaring things subject to taxation, he says: "It
does not seem improbable that this obligation is merely penal."
21. C. Damen (1881—). Damen's opinion in this matter is very
similar to that of Merkelbach,114 except that while Merkelbach says
that per se tax laws are moral laws (i. e., oblige in conscience to the
act prescribed), Damen says that per se tax laws seem to be moral
laws. Damen admits that per accidens some tax laws, especially
those which impose indirect taxes, can be or can become merely
penal. He cites a number of authors who hold that all tax laws can
be merely penal but does not say whether he agrees with the opinion
or not.115
Regarding the nature of the obligation imposed by just tax laws,
he says: "These laws bind the subjects in conscience to pay taxes
from general or (seu) legal justice." But since Damen holds that
the matter of legal justice is the acts of other virtues in so far as they
can be directed to the common good, he further determines this obli
gation by saying that the act of virtue imperated in this case, "seems
to be an act of commutative justice." Damen remarks in a note
that the obligation of paying taxes does not urge before payment has
been demanded.
III. The Opinion That Direct Taxes Must Be Paid in Virtue

of Legal Justice While the Obligation of Paying
Indirect Taxes Is Merely Penal
1. Ballerini (1805-1881). Although Ballerini is not the author
of the theory that laws imposing direct taxes are moral and laws im
posing indirect taxes are purely penal, he is greatly responsible for
the popularity of the theory at the present time.116 Ballerini's opin-
114 Cf. J. Aertnys, Theol. Mor., III, 377, for the teaching of Aertnys on this
matter. This is another instance of a continuator (C. Damen) changing the
work of the original author (Aertnys).
115 Aertnys-Damen, Theologia Moralis (Rome, 1939), I, n. 831.
118 Cf. Priimmer, Man. Theol., I, n. 293. For the history of the theory
see below, p. 148 ff.
-/ V
ion in this matter was first brought to the attention of the public in
his numerous editions of Gury's Theologia Moralis.117 However,
the clearest presentation of his teaching is to be found in Bal-
lerini's own Opus Theologicum Morale first published posthumously
by Palmieri in 1889. The following analysis is taken from this lat
ter work.
Ballerini first states that per se tax laws are moral and not merely
penal, because "they prescribe an act of the virtue of legal justice." 118
The proof that the act of virtue prescribed is one of legal justice is
very meager. He says: "The prince and the subjects are bound, each
in their own way, to contribute whatever is necessary to carry the
burdens of the society." The other proofs given by Ballerini point
to an obligation in general but have little or no reference to an obli
gation in legal justice.
Ballerini also maintains that per se there is an obligation of pay
ing taxes even though no demand for payment has been made.
Nevertheless, he is of the opinion that de facto tax laws in modern
states do not bind before demand for payment has been made.
Regarding the obligation of paying indirect taxes, Ballerini says:
"We may affirm with at least true probability that laws imposing
customs and imposts, are purely penal, at least in our times." Bal
lerini gives three arguments for this opinion. The first argument is:
"There are not lacking authors who consider these tax laws at most
penal: Cf. Lugo, disp. c. n. 38." The second argument is a rather
lengthy quotation from St. Alphonsus in which the saint gives the
arguments for the view that tax laws are merely penal. Ballerini's
point in citing the great Doctor is that, "having presented this opin
ion (i. e., that tax laws are merely penal) the holy doctor does not
expressly condemn it, indeed he says that the reasons given are not
to be despised."
It is to be noted that although Ballerini is attempting to prove
117 The first edition published by Ballerini appeared in 1866, but since the
writer could not locate this edition, the edition of 1869 published at Rome, is
referred to here. It may well be that the notes which are added to the edition
of 1869 are also found in the edition of 1866.
118 A. Ballerini, Opus Theologicum Morale (ed. Palmieri, Prati, 1892), I,
p. 322 ff.
that indirect taxes of his time are purely penal, he does not cite any
contemporaneous authority. The authors mentioned by Lugo as
holding the opinion that tax laws are merely penal, all wrote two
hundred years before Ballerini. And he does not mention that St.
Alphonsus says of the penal law theory: "Whether for these reasons
(which moreover, it seems are not to be despised) the opinion is
sufficiently probable, I leave to the judgment of those wiser than
myself." 119
The third argument used by Ballerini, is drawn from what he
calls the common practice of taxpayers. He says: "The practice of
acting in this matter as if the law were only penal is sufficiently
common among men. Usually no one thinks himself bound to pay
indirect taxes, unless to the extent that he cannot escape the vigilance
of those whose duty it is to exact payment."
2. Pruner ( 1825-1907). Pruner is very definite in his opposi
tion to the view that tax laws oblige in virtue of commutative jus
tice.120 Although he maintains that in general there is an obligation
of paying just taxes, he says of indirect taxes: "Considering the
authority of the best modern theologians, it cannot be denied that
the opinion is probable which maintains that present-day laws, at
least those which impose indirect taxes, have the character of penal
laws."
According to him, laws which impose direct taxes oblige in vir
tue of legal justice. As proof that the obligation is not one of com
mutative justice, Pruner makes a comparison between the state and
the family. The basis of the mutual obligations of the ruler and the
citizens to work for the common good of the state is similar to the
basis of the mutual obligations of the head and members of the fam
ily to promote the common good of the family. And just as in the
family these obligations do not arise by reason of any kind of con
tract between the children and the parents, so also in the state the
obligations do not depend on a mutual pact between citizens and
ruler. The father and members of the family are bound to work for
110 Theol. Mor., III, 616.

120 Lehrbuch der Katholischen Moraltheologie (Freiburg in Breisgow, 1883),
p. 282 ff.
^
the common good of the family, not because they will to do so or

agree to do so, but because they are ordered to do so by God Who
has made man's nature in such a way that the family is a necessary
society. So also in civil society: "There exist indeed, mutual obliga
tions . . . but these do not depend on the expressed or tacit wills (of
ruler and subjects) but are laid upon them by God Who made one the
representative of His authority over the others, and made the others
subject."
3. Marc (1831-1887). Marc distinguishes sharply between the
obligation imposed by direct taxes and that imposed by indirect
taxes. In a clear and succinct principle he states: "Those who de
fraud direct taxes sin regularly only against legal justice; those who
defraud indirect taxes, offend against a merely penal law." m Marc
probably included the word "regularly" in the first part of the thesis
because he admits the possibility of all tax laws being purely penal.
His proof that direct taxes oblige in virtue of legal justice is
meager. He says: "The reason for the first statement is that the
subjects are obliged in conscience to obey just laws that are directly
conducive to the common good; and this pertains to legal justice."
He then quotes the words of St. Paul to the Romans: "Render . . .
taxes to whom taxes are due." 122 Marc gives several reasons for his
opinion that indirect taxes are merely penal: (a) the very heavy
fines, (b) the fact that indirect taxes do not have such an intimate
connection with the common good as do direct taxes, (c) the injustice
which would result if poor people paid indirect taxes in their entirety,
(d) the practice of conscientious men, (e) the extrinsic probability
of this opinion.
Marc expressly disagrees with the opinion of Marres and Waf-
felaert who claim that taxes are due in commutative justice after the
amount to be paid has been determined and the state has the right
to institute civil action in order to collect the money. Marc will ad
mit that commutative justice is involved in only one case and that
occurs when the state taxes a certain class of citizens by imposing a
lump sum on the entire group, and this amount is then divided among
121 Institutiones Morales Alphonsianae (Lyons, 1922), I, n. 967.

i22 Rom. 13, 7.
'
the members of the class. In this case, if one of the members of the
class fails to pay his share, the others must contribute more in order
to meet the amount which the group was assessed by the state.
4. Lehmkuhl (1834-1917). According to Lehmkuhl, the obliga
tion of paying taxes is founded in legal justice.123 However, in cer
tain cases the failure to pay taxes is a sin against commutative jus
tice and hence entails the obligation of making restitution. Com
mutative justice is involved whenever the failure of a person to pay
just taxes is the reason why other taxpayers must pay more than
their share of the tax burden, or is the reason why the salary of a
certain person connected with the government is not paid.
Lehmkuhl does not explicitly adhere to the opinion that indirect
taxes are imposed by merely penal laws, but it is evident from his
treatment of the question that he at least favors this opinion. He
says: "According to the opinion of many, indirect taxes are imposed
by penal laws (per modum legis poenalis) and these authors come to
this conclusion, both because of the fines or exorbitant penalties, . . .
and because of the common interpretation and acceptation of men."
In the following paragraph (which is in fine print) he says: "Others,
however, who contradict (the opinion that indirect tax laws are
merely penal) readily admit: (1) indirect taxes demanded from the
poor on the necessities of life are to be considered objectively un
just; (2) indeed, taxes which are demanded on things destined for
one's own use do not generally oblige to the extent that one must
spontaneously declare those things."
5. Noldin (1838-1922). Noldin is not very positive in his teach
ing concerning the obligation imposed by just tax laws, except in so
far as he rules out commutative justice as the basic virtue urging
the payment of taxes. His own opinion is contained in the following
principle: "Just tax laws, if they are preceptive, oblige in legal jus
tice." 124 His only reason for this statement is: "Tax laws are to be
judged according to the same norm as other laws; but per se other
civil laws oblige in legal justice."
123 Theologia Moralis (Friburgi Brisgoviae, 1902), I, n. 981.

12* Summa Theologiae Moralis (ed. A. Schmitt, Innsbruck, 1939), II, n.
315 ft".
>
/
This principle is qualified by two other statements, one concern

ing direct and the other concerning indirect taxes. He first treats
indirect taxes. Of these he says: "Laws which refer to indirect taxes
are considered as purely penal laws in many countries, especially if
they tax things destined for one's own use." Noldin does not say
explicitly that he considers these laws purely penal but in giving the
arguments for the opinion, he says: "Although the state possesses suffi
cient means to enforce the payment of taxes, actually it uses only
these physical means (vigilance, heavy fines, etc.); it is deduced
from this manner of acting that the state does not urge the obligation
in conscience." It is not clear from this whether or not Noldin him
self makes this "deduction."
Having in his first principle said that tax laws oblige in virtue
of legal justice if they are preceptive, Noldin states in a third propo
sition: "Tax laws which impose direct taxes seem to be preceptive
in legal justice, in the countries of Austria and Germany." He does
not add any arguments which directly point to an obligation in legal
justice but merely restates what he said before: "per se they (tax
laws) oblige in legal justice."
IV. The Opinion That All Tax Laws Bind in Virtue of

Legal Justice
1. Sabetti-Barrett (Sabetti, 1838-1898). The hand-book of
moral theology known familiarly as "Sabetti-Barrett" is in reality
another of the numerous continuations of the Compendium The-
ologiae Moralis of Gury. The edition of Sabetti-Barrett used here
boasts of no less than four editors, Ballerini, Sabetti, Barrett, and
Creeden.125 Although the opinion concerning the obligation of pay
ing taxes which is contained in this edition cannot be ascribed to
Gury, it does represent the ideas of the four editors.126
In number 474 the question is asked: "Whether laws which look
125 Sabetti-Barrett, Compendium Theologiae Moralis (34th ed., New York,

1939), p. 415 ff.
126 Cf. supra, p. 60 for Gury's opinion. In the matter of taxes, the 1939
edition of Sabetti-Barrett is a verbatim copy of the edition put out in 1884 by
Sabetti. It is to be noted that Ballerini holds that indirect taxes are purely
penal. None of the other editors make this distinction.
'
to the payment of taxes, generally oblige in conscience or are to be

considered penal?" The answer is not very definite. The opinion
which claims that tax laws do oblige in conscience is given first and
the arguments for the opinion from reason and Scripture advanced
by St. Alphonsus are stated. This part of the answer is taken from
Gury. The contrary opinion is stated thus: "But there are not lack
ing theologians who, perhaps not improbably, hold that these laws
are merely penal, especially today." There is no indication that
Creeden or whoever is the author of the sentence, agrees with these
authors who hold the penal law theory.
The reason why Sabetti-Barrett was placed in the category of
those authors who hold that all tax laws oblige in virtue of legal jus
tice, is to be found in the answer to the following question: "Is
restitution always to be demanded of those who defraud the gov
ernment by not obeying the tax laws?" The response is: "In the
negative, probably,—both because perhaps it may be doubted whether
these laws oblige in conscience, and because even if they do so
oblige, whoever does not observe them would offend against legal
justice but not against commutative justice."
2. Wouters (1864-1933). Wouters maintains that, "after the
amount each is to pay has been legally determined, tax laws seem to
be mixed, or oblige to the act." v" This obligation is not one of com
mutative justice, but is an obligation of legal justice or some other
virtue. He says: "Tax laws, which we said were mixed, probably
(satis probabiliter) do not oblige in commutative justice, but in legal
justice or some other virtue distinct from commutative justice."
Wouters is one of the few authors who points out what is really the
best argument for this opinion. "The reason is that an obligation in
commutative justice is not proved as is evident from an examination
of the arguments for the contrary opinion. Therefore, if the law is
not fulfilled, there is no obligation of making restitution. Note, how
ever, that the obligation of paying the tax persists until the time
when the payment may be demanded has elapsed." Wouters does
not attempt any direct proof that the obligation imposed by tax laws
is one of legal justice; nor does he suggest what "other virtue" may
w Manuale Tkeologiae Moralis (Bruges, 1932), I, n. 1054.

be involved in the paying of taxes. He does say: "It seems that the
opinion of some who consider the obligation one of obedience, must
be rejected altogether." 128
Wouters is about the only author who makes a distinction con
cerning the obligation of declaring things subject to taxation. He
says: "The law of declaring things subject to taxation seems to be
mixed, if it concerns direct taxes. . . . Practically it can be con
sidered merely penal if it concerns indirect taxes." The basic reason
of the author for this distinction seems to be that in the case of di
rect taxes the legislator intends that the obligation to declare tax
able goods be of the same species as the obligation to pay the tax
itself, and the contrary custom of the subjects is not sufficient to
overcome the will of the legislator; but in the case of indirect taxes,
the fact that heavy fines are imposed on those who do not declare
taxable goods seems to indicate that the legislator intends to substi
tute this obligation to the penalty for the obligation in conscience to
comply with the law.
3. Tanquerey (d. 1932). Tanquerey considers the following
thesis, "more probable." "Per se tax laws oblige in legal justice after
the amount to be paid has been legitimately determined." 129 He
points out that the phrase per se is included in the thesis because he
holds that per accidens tax laws may be merely penal. Tanquerey
does not say much in support of his claim that tax laws oblige in
virtue of legal justice. He argues that since men are born to live in
society, they have an obligation to supply whatever is necessary to
preserve the good order of the society within, and to protect the so
ciety from enemies without. "But unless the citizens are bound in
conscience at least in legal justice (Piety and obedience) to pay
these expenses, the end intended would not easily be attained."
Further on he says that the non-payment of taxes does not violate
an implicit pact, "because there is a legitimate doubt about the exist
ence of this pact."
The obligation of declaring things subject to taxation is one of
obedience unless the custom of not declaring such things is known
128 Ibid., n. 1054, note 3.

129 Synopsis Theologiae Moralis et Pastoralis (Paris, 1937), III, n. 560.
to the ruler and tolerated by him. In this case the law of declaring
taxable goods may be considered merely penal.
4. K. Wagner. Klemens Wagner has produced what is prob
ably the best work in modern theological literature on the obli
gation imposed by just ,tax laws. Unfortunately, the writers of
popular hand-books of theology have taken little notice of his
careful analysis of the arguments advanced by the exponents of the
various schools of thought regarding the obligation of paying taxes.
Wagner's criticism of these arguments will be given more fully in the
following chapter. In this place, a brief statement of his own opin
ion concerning the obligation to pay taxes will be presented.
In the opinion of Wagner, just tax laws bind in virtue of legal
justice.130 Although Wagner does attempt a direct proof that the
obligation is founded in legal justice, he seems to rest his case more
on the lack of positive proof for any other theory.181 He argues as
follows: There are three theories proposed anent the obligation im
posed by just tax laws. These are, the penal law theory, the com
mutative justice theory, and the legal justice theory. After closely
scrutinizing the arguments for the various opinions, Wagner con
cludes that the penal law theory is untenable,132 and that the com
mutative justice theory lacks sufficient proof,133 therefore the third
theory is to be accepted unless some unanswerable difficulty can be
brought against it or unless a rival theory other than the two dis
posed of can be elaborated. According to Wagner there is no other
theory and no serious objection can be made against the legal justice
theory. Therefore, just tax laws oblige in virtue of legal justice.
Wagner's direct proof that taxes are due in legal justice amounts
to this: taxes have as their object the common good; but the precise
object of the virtue of legal justice is the common good. Therefore,
the obligation of paying taxes is founded on the virtue of legal jus-
130 Die sittlicken Grundsatze beziiglich der Steuerpflicht (Regensburg, 1906),

p. 79.
131 This is the same line of argumentation that was used by Wouters. Cf.
p. 78.
132 Op. cit., p. 52 ff.
133 Op. cit., p. 64 ff.
"-
w
tice. Although, as will be seen,134 this argument is valid, it does not

prove that taxes are due in virtue of legal justice alone.
Wagner maintains that the obligation of declaring things subject
to taxation is of the same species as the obligation to pay the tax it
self. Hence, according to him, there is an obligation in legal justice
of declaring things subject to taxation.
5. Bucceroni (1841-1918). No less than five authors cite Buc-
ceroni in favor of the theory that tax laws are merely penal laws.135
It is with some hesitation therefore, that Bucceroni is placed in the
category of those who hold that tax laws bind in virtue of legal
justice.
Bucceroni asks the question: "Whether and in what way tax laws
oblige in conscience?"136 He answers: "Speaking per se, tax laws
are moral or oblige in conscience." His reason for this statement is
that just tax laws, "prescribe an act of natural justice, namely, of
legal justice, which act the law merely defines and determines."
However, the tax need not be paid until demand for payment has
been made. But it is by no means permitted to use lies and fraud
in order to deceive the tax-collectors. The following sentence is the
reason why authors usually class Bucceroni with those who hold that
tax laws are merely penal laws: "Indeed, since heavy penalties are
imposed on those who do not pay, there are many and weighty
authors who consider tax laws merely penal laws. . . . Hence one
would sin only if, not having paid the tax, he is unwilling to pay the
penalty. But the common practice and persuasion of men confirm
this opinion, namely, that these laws do not oblige in conscience.
Therefore since this obligation is at least doubtful, it seems that no
one is to be disturbed (inquietandus) if he has not paid a tax which
was not demanded by the tax-collectors; indeed even if he eluded the
vigilance of the tax-collectors by merely hiding the things (subject
to the tax) or by not declaring it, as even conscientious men are ac
customed to do." The most that can be taken with certainty from
this is that Bucceroni would not consider a person guilty of sin who
1!" Infra, p. 151 ff.

185 Cf. Marc, Institutiones, I, 067; Davis, Moral, II, p. 338; Noldin, Summa,
II, n. 315, note; Damen, Theol. Mor., I, 831, note; Prummer, Manuale, I, n. 293.
186 Institutiones Theologiae Moralis (Rome, 1893), I, n. 232.
,
did not pay taxes when payment was not demanded or when the tax
was evaded without using unjust means. It cannot be determined
whether Bucceroni would act in this way from conviction that the
penal law theory is the true theory, or merely from respect for the
authority of the "many and weighty authors" who hold the penal
law theory. It is to be noted that Bucceroni does not name the
"many and weighty authors."
In the next paragraph, Bucceroni says: "They are to be con
demned . . . who violently resist the officials who collect taxes; for
they sin 1° against obedience ... ; 2° against legal justice; for even
though a tax law be considered merely penal, it gives the government
a certain right (ius certum) to demand the fine, if the subjects are
apprehended in fraud, etc." This paragraph is taken almost word
for word from Gury, but Bucceroni's version has important changes.
First, where Gury says, "against justice," Bucceroni says, "against
legal justice"; second, where Gury says, "even though a tax law be
sometimes (italics added) considered merely penal," Bucceroni says,
"even though a tax law be considered merely penal." m It is diffi
cult to understand this passage even in Gury's original version for it
seems that if tax laws are purely penal the tax-collectors have no
right to force payment of the tax and hence resistance to tax-col
lectors would not of itself be sinful. If the tax laws be purely penal
the subject has the right to choose either to pay the tax or to undergo
the penalty, and in the event that a person does choose to undergo
the penalty, no one can legitimately force the person to pay the tax.
The person may not, of course, refuse to pay the penalty, i. e., the
fine. However, if the tax law were de facto purely penal, it seems
that the citizen could not be accused of sin (leaving out of considera
tion sins of lying, perjury, etc.) unless he actually refused to pay a
penalty that has been inflicted. Hence it seems that Bucceroni would
not consider tax laws as merely penal since he holds that it is a sin
of disobedience to resist the tax-collectors. The fact that he says, "re
sist violently," does not change the case for under the penal law
theory, violent resistance would be sinful only if it were out of due
proportion, i. e., if greater resistance were offered than called for by
the coercion of the tax-collector.
"» Cf. Gury, Comp. Theol. Mor., I, n. 709.
CHAPTER III
ANALYSIS OF THE VARIOUS VIEWS
I. The Purely Penal Law Theory

1. History of the theory. It is the purpose of the first part of
the present article to give a brief sketch of the origin and develop
ment of the theory that certain laws containing a penalty do not
oblige the subjects under pain of sin to anything except unresisting
submission to the justly inflicted penalty. According to this theory,
one who transgresses a so-called purely penal law is not guilty of
sin by the very fact of the transgression, but sins only when he refuses
to submit to a penalty. The guilty person need not, however, give
himself up to the officials for punishment, and it seems, may even
attempt to flee from the custody of the authorities before the pen
alty has been inflicted by the sentence of the judge.1
Despite the fact that during the past fifty years a flood of litera
ture has appeared concerning the purely penal law theory, the origin
of the theory is still somewhat obscure.2 But this much is certain.
1 No author treats this particular point, but it seems that the ordinary
principle whereby an accused person—even a guilty one—may attempt flight
provided he does not thereby expose his own or another's life to danger, may
be applied here. Cf. Merkelbach, Sum. Theol. Mor., II, n. 641 B.
2 Some of the more valuable contributions are: Biederlack, "Zur Lehre von
den Ponalgesetzen," Zeitschr. f. Kath. Theol., 23 (1889), 155 ff ; the series of
articles by Koch in the Tiibinger Theologische Quartalschrift, 32 (1900), 204 ff;
34 (1902), 574 ff; 36 (1904), 400 ff; K. Wagner, Die sittlichen Grundsdtze
beziiglich der Steuerpflicht (Regensburg, 1906), 52 ff; Noldin, "Zur Erklarung
des Ponalgesetzes," Zeitschr. f. Kath. Theol., 33 (1909), 126 ff; Janssen, "Des
lois penales, Notion, possibility, existence," Nouvelle Revue Thiologique, 50
(1923), 119 ff; Montes, "Interpretacion de la Ley Penal," La Ciudad de Dios,
144 (1926), 436 ff; G. Renard, La valeur de la Loi (Paris, 1928), p. 183 ff;
also by Renard, La thiorie des "leges mere poenales" (Paris, 1929) ; Ulpian
Lopez, "Theoria Legis Mere Poenalis," Periodica de re Morali, Canonica, Litur-
gica, 27 (1938), 203 ff; 29 (1940), 23 ff; F. Litt, "Les lois dites purement
penales," Revue ecclisiastique de Liege, 30 (1938-39), 141-156 and 359-372; I.
83
The theory did not originate in connection with civil or even in con
nection with ecclesiastical law of a general nature. The earliest
references to the notion that transgression of certain precepts is not
in itself sinful, are found in discussions concerning the binding force
of the rules and constitutions of religious orders.3
The morality of disobedience to religious rules and constitutions
was ,a subject of debate among the monks as far back as the first
half of the twelfth century. The earliest known work on the subject
is a short treatise, De Praecepto et Dispensatione, by St. Bernard.4
The saint had been asked by the monks of Chartres for a decision
on several questions, among them the binding force of the rules and
constitutions. There is no doubt in St. Bernard's mind that all the
rules and constitutions bind under pain of sin, either mortal or venial,
according to the matter involved.
With the advent of the rule of St. Dominic, the opposite doctrine
became certain. Indeed, the general chapter of the Dominican
Order held in 1236 included the following declaration in the prologue
to the rule: "Ut igitur unitati et paci totius Ordinis provideamus,
volumus et declaramus ut Regula nostra non obligent nos ad cul-
pam, sed ad poenam, nisi propter praeceptum vel contemptum." 5
As St. Thomas indicates later on, this practical settlement of the
question does not necessarily apply to the rules of all religious orders,
but there can be no doubt about the validity of the principle in
volved, namely, that not every violation of a religious rule is per se
sinful.
St. Thomas wrote his Sumtna Theologica some thirty years after
the Dominican rule incorporated the principle mentioned above, but
there is no evidence either in the Sumtna or in any other of his writ
Teodori, "Lex civilis-poenalis," Apollinaris, 3 (1930), 442 ff; V. Vangheluwe,

"De Lege Mere Poenali," Ephemerides Theologicae Lovanienses, 16 (1939),
383-429; S. Castillo, "La ley meramente penal y la legislacion eclesiastica,"
Ciencia Tomista, 64 (1943), 26-45; J. Nunendez-Reigada, "La theoria penalista
de Santo Tomas," Ciencia Tomista, 64 (1943), 273-292. For further references
see G. Michiels, Normae Generales Juris Canonici (Lublin, 1929), I, p. 257,
note 1.
8 Cf. Renard, La valeur de la Loi, p. 105.
* ML, CLXXXII, 859.
B Quoted by Renard, La theorie des "leges mere poenales," p. 20.
Analysis of the Various Views 85
ings to show that the great Doctor advanced the purely penal law
theory beyond the point reached by the chapter in 1236. In the
Secunda Secundae, q. 186, a. 9, St. Thomas treats the obligation of
a religious to observe his rule and says: "Not every transgression
of the things contained in the rule is a mortal sin." 6 In his reply to
the first objection of this article he says: "There is also a religious
order, that of the Friars Preachers, where suchlike transgressions or
omissions do not, by their very nature involve sin, either mortal or
venial; but they bind one to suffer the punishment afftxed thereto,
because it is in this way that they are bound to observe such things."
Had St. Thomas intended to extend the theory to civil law, the
logical place for him to inform us of the fact is question 96, article
4 of the Prima Secundae, where he proposes the question: "Whether
human laws bind a man in conscience?" But there is not the
slightest indication in the answer to this question that St. Thomas
had any idea of a civil law binding only to the penalty. The burden
of his answer is contained in the following sentence: "Laws framed
by man are either just or unjust. If they be just, they have the
power of binding in conscience, from the eternal law whence they
are derived." St. Thomas makes no distinction between laws that
bind in conscience only to the penalty and laws which bind in con
science to the performance or omission of the act prescribed; nor
does the phrase, "they have the power of binding in conscience,"
imply that although the power of binding is present, not all laws
actually do bind in conscience. The Latin is clearer on this point:
"Si quidem justae sunt, habent vim obligandi in foro conscientiae."
It is evident that "habent vim" is not the equivalent of "possunt
obligare."
The next step in the development of the purely penal law theory
seems to have been made by Henry de Gand (d. 1293). Up to his
time the theory had been applied only to the rules of religious orders,
but Henry with very little fanfare says: "Et simile est de statutis
principum et praelatorurn in consimili materia." r As far as we
»
6 Wherever the English version of the Summa is used in this study, the
translation is that of the English Dominican Fathers, 3rd edition (London,
1941).
7 Quodlibeta (Paris, 1518), III, q. 22.
/
know, this simple statement is the very first declaration of what is

now known as the purely penal law theory. Henry offers very little
proof that the older theory concerning the obligation of religious
rules could be applied to the law of the Church and of civil govern
ments, but it seems that little proof was needed to convince his con
temporaries that such an application was valid. Scarcely fifty years
after Henry's death, we find that the theory had been accepted
without question by at least one diocesan synod. In 1355, the synod
of Toledo declared: "Lest the faithful be burdened with the weight
of sin by the transgression of the provincial constitutions, ... we
ordain, with the approval of the sacred Council, that the provincial
constitutions of our predecessors, and those which may be enacted
in the future, do not oblige the transgressors to sin (ad culpam),
but only to the penalty, unless it is expressly ordained otherwise in
the things to be enacted (nisi aliter in condendis expresse fuerit
ordinatum)." 8 The theory of purely penal laws behind this declara
tion is clear. The laws of the synod contain true precepts, i. e., they
command or forbid the doing of certain things. For example, the
synod of 1323 forbade priests to say more than one Mass each day.9
This law contains a direct prohibition and yet since there was noth
ing expressly ordained to the contrary, it would not be sinful for a
priest to act contrary to the prohibition, unless he were unwilling to
submit to the penalty, if imposed. There is no indication that in the
mind of the synod, it made no difference whether the priest obeyed
the precept or chose to undergo the penalty. The synod wanted
the law kept, but it did not intend to burden the subjects with sin
for transgressing the laws unless after the transgression they also
refused to submit to a penalty.
This explanation of the purely penal law theory is substantially
the same as that which modern authors claim is the only true ex
8 J. D. Mansi, Sacrorum Conciliorum Nova et Amptissima Collectio (Arn-

heim, 1901-1927), 26, 441.
"Ibid., 25, 734. Unfortunately none of the constitutions of the synod of
1355 have been preserved. However, since the declaration of this synod was
expressly retroactive, the example chosen from the synod of 1323 may be used
an a valid illustration of a purely penal law according to the mind of the synod
of 13S5.
/
planation.10 But curiously enough, during the five centuries that

elapsed between the synod of Toledo and the writings of Koch,
Prummer, Michiels, and others, this explanation of the theory
suffered an almost total eclipse. During that long interval the most
common explanation was that made popular by Angelus.11
In order to understand Angelus' notion of a purely penal law, it
is necessary first of all to appreciate the fact that there is a sharp
distinction between the definition of a purely penal law as it is found
in older authors, like Castro, Suarez, Billuart, etc., and the defini
tion that is commonly used today. The modern notion of a purely
penal law and hence the modern distinction between a purely penal
law and a purely moral law on the one hand, and a mixed law on the
other hand, is based on the kind of obligation imposed by the law.
Thus, Merkelbach defines a purely penal law as one "that does not
oblige in conscience to do what the law prescribes but only obliges
(the subject) not to resist the infliction of a penalty in case the
law is transgressed, and to undergo the penalty once it has been
inflicted." 12 A purely moral law therefore, is one that obliges only
to the thing prescribed by the law; and a mixed law is one that
obliges in conscience to the thing prescribed by the law and also
obliges in conscience to the penalty contained in the law, in case the
law is disobeyed.
The difference between the modern concept of a purely penal
law and the older concept is readily perceived by comparing the
10 Cf. Michiels, Normae Generates, I, p. 256 ff. Cf. especial!/ note 2, p.

260.
11 Summa Angelica, "Inobedientia," para. 2. In the interval between the
synod of Toledo (1355) and the work of Angelus (d. 1493), there are very few
references to the penal law theory, and what references we do find are in con
nection with the binding force of religious rules and constitutions. Thus Joannes
Andreas says of the rules of religious orders: "... regula est in praeccpto . . .
quo ad tria substantialia (i. e., concerning the matter of the three vows) . . .
alia vero non putamus in praecepto." In Tertium Decretalium Novella Cotn-
mentaria, c. 7, "ne clerici vel monaci," III, 50, n. 2 (Venice, 1581), p. 242r.
Andreas gives a rather practical reason for this opinion: "Alias vix unus de 4
monacis salvaretur." Angelus is incorrect in citing Andreas in connection with
the purely penal law theory as applied to civil law.
12 Sum. Theol. Mor., I, n. 287.
c
above definitions with the following definitions given by Castro

(d. 1558).13 Castro defines a purely penal law as "one that does
not prescribe or forbid the doing of anything; but merely imposes
a penalty on him who does something or omits to do something." 14
A mixed law—Castro calls it a "mixed penal law"—is one "that
prescribes or forbids the doing of something, and moreover pre
scribes a penalty against one who transgresses the law." A purely
moral law is one "that prescribes or forbids something without desig
nating any penalty."
It is to be noted that Castro does not mention the word "obliga
tion" in any of the three definitions, whereas Merkelbach does bring
in the word in all three definitions. This difference is significant.
For Castro, a purely penal law was simply a law which imposed a
penalty but did not definitively and expressly prescribe or forbid
anything else. If the law did definitively prescribe or forbid some
thing besides enjoining a penalty, the law would no longer be a
purely penal law. Such a law would be a "mixed penal law" and
might oblige in conscience to the penalty alone or might oblige to
both the penalty and the act prescribed. For Merkelbach and the
other modern theologians, a purely penal law is specified, not by
whether or not it definitively prescribes or forbids anything besides
a penalty, but by the fact that the obligation it imposes is limited
to accepting the penalty which it enjoins. Hence, according to the
modern sense, a purely penal law may definitively prescribe or forbid
something, provided the only obligation it imposes is to accept the
penalty if and when the penalty is justly inflicted.
The vast difference between the older and the modern concept of
a purely penal law is brought out strikingly by the examples of
purely penal laws given by Castro. He says: "The following are
purely penal laws given by God. If anyone (God said through
13 Castro has been chosen for the comparison because Angelus does not
define, indeed he does not use these terms. However, his ideas are expressed
accurately enough by Castro. As a matter of fact, it seems that Castro was the
first to use the term, "lex pure poenalis," and according to Navarrus was the
first to distinguish laws into "moral," "mixed," and "purely penal." Cf. Navar
rus, Commentarius de Lege Poenali, nn. 26, 27.
14 De Potestate Legis Poenalis, I, c. IX (Paris, 1571), col. 1613.
*N
i
Moses) shall have stolen a cow or a sheep and shall have sold it or
killed it, let him restore five cows for one cow, etc." 1B As an ex
ample of a purely penal civil law, Castro gives the following from
the laws of Spain: "We prescribe that any person who violates or
who does not keep his oath concerning any contract, ipso facto
shall lose all his goods." 16 According to the modern notion of a
purely penal law, neither of these laws could be called purely penal;
in the modern sense, they are mixed laws, i. e., laws which oblige in
conscience to both the act prescribed and the penalty.
Failure to grasp this fundamental distinction between the mod
ern notion of a purely penal law and that of the majority of the the
ologians of the period immediately after Trent has been the cause
of much confusion and misunderstanding. For example, the dis
putes of this period about the binding force of mixed laws " are in
telligible only when it is realized that for most of the post-Tridentine
theologians, a mixed penal law was a law that prescribed or forbade
the doing of something and at the same time enjoined a penalty;
it was not defined, as it is today, as a law that does de facto bind in
conscience to both the act prescribed and to the penalty.18
Navarrus, as was pointed out,19 objected to the division of laws
into purely penal, mixed, and purely moral. In his opinion all laws
15 Op. cit., IX, col. 1615.

16 Ibid., col. 1617.
17 Ibid., XII, col. 1646.
18 Another example of misunderstanding is afforded by Michiels, Normae
Generates, I, p. 260, note 2: " . . . quidem A.A., ut S. Alphonsus, Theol. Mor.,
tract. I, De Leg., n. 145 ; . . . ita inaccurate aut falso se exprimunt, ut videantur
admittere talem legem nullam in conscientia obligationem inducere, ne ad poenam
quidem subeundam. . . ." In the first place, the citation should be, "tract. II,"
not "tract. I"; and in the second place, St. Alphonsus expressly states in n.
147: "Haec est differentia inter legem pure poenalem quae obligat ad solam
poenam (italics added): et haec est, quando in ea tantum poena assignatur; et
legem mixtam, quae obligat etiam ad culpam; et haec est quando, ultra poenam,
praeceptum adjungitur." What confused Michiels is the fact that in n. 145,
St. Alphonsus uses definitions similar to those of Castro, given above, in which
there is no mention of an obligation. Thus the saint says: "... alia est lex
pure poenalis, quae nullum dat praeceptum; . . . Alia est lex non pure poenalis,
quae praecipit et poenam imponit."
18 Supra, p. 31.
'
were mixed laws, because all laws "tacitly contain a sin and a pen
alty." 20 He says: "... every law which he (Castro) calls purely
moral seems to oblige under pain of venial or mortal sin and conse
quently contains eternal or temporal punishment in either the life to
come or in this; and every law which he calls purely penal, seems to
oblige tacitly under venial or mortal sin, on account of which sin the
penalty is imposed." 21
It must be admitted that it is difficult to arrive at a consistent
interpretation of Navarrus' teaching concerning penal laws, for in
spite of the above passage, which seems to rule out the possibility of
a purely penal law in any sense, Navarrus clearly taught that all
laws containing a penalty obliged only to the penalty unless the
penalty were imposed for something contrary to divine law or unless
the legislator expressed his intention to bind both to the penalty and
to the act.22 The solution of this seeming contradiction is too large
a problem to be treated in the narrow confines of this sketch. It
will suffice to state that the opinion of Navarrus never became popu
lar.
The next phase in the development of the purely penal law
theory is due to the writings of Suarez (d. 1617). Like Castro,
Suarez defines a purely penal law according to what is expressed
in the law, i. e., according to what is expressly commanded by the
law, not according to the extent or nature of the obligation imposed
by the law. He says: "A purely penal law is one which contains
only one, and that a hypothetical precept of accepting a certain pen
alty if this or that occurs." 23 The difference between this defini
tion and that of Castro appears to be slight, for even though Suarez
is, as usual, more analytic, and calls the precept contained in a purely
penal law, a "hypothetical precept," nevertheless he does insist that
a purely penal law expresses only one precept.24 In this he agrees
20 Commentarius de Lege Poenali, n. 27.

21 Loc. tit.
22 Cf. Commentarius de Lege Poenali, n. 41 ff; cf. also Navarrus, Manuale,
XVII, p. 395.
23 De Legibus, V, c. IV, n. 2.
2*Michiels errs when he says: "... post Suarezium, 1. V, c. 4, n. 1 et
Billuart, De Lege, diss. 4., art. 4, A.A. hodierni, . . . rectius dicunt legem mere
1
with Castro. But the similarity stops there. For Suarez, unlike
Castro, makes "precept" and "obligation" correlative terms. In
other words, according to Suarez, a precept always gives rise to an
obligation, and conversely, an obligation is always the result of a
precept.25
The revolutionary effect of this teaching is not immediately evi
dent in Suarez' concept of a purely penal law. He defines it in a
way that agrees substantially with Castro and comes to the same con
clusion as Castro regarding its binding force.26 Nevertheless, the
new doctrine paved the way for the modern definition of a purely
penal law. For if "precept" and "obligation" are interchangeable
terms, it makes no difference which term is used in the definition of
a purely penal law. A law expressing only one precept would be the
same as a law expressing only one obligation. Suarez himself used
"precept" in his definition of a purely penal law but those who fol
lowed him, with few exceptions, used "obligation." Thus, today a
purely penal law is commonly defined as one that contains only one
hypothetical obligation of submitting to a penalty.
The immediate and more striking effect of making "precept" and
"obligation" correlative terms is seen in the definition of a mixed
law given by Suarez. Castro defined a mixed law as one that con
poenalem illam esse, quae vere praecipit aliquid faciendum vel omittendum, non
autem vult obligare sub culpa morali ad ilium actum ponendum vel omittendum,
sed tantum ad poenam subeundam in casu quo propter legis violationem est
irrogata. . . ." Normae Generales, I, p. 260, note 2. Neither Suarez, as is evi
dent from the text above, nor Billuart, as will be seen below, held that a purely
penal law contained two precepts. Cf. p. 93, note 33.
25 In arguing against the view of Navarrus that all laws containing a
penalty were purely penal (in the sense of obliging only to the penalty) unless
the legislator expressed the contrary intention, Suarez says that the only good
argument against Navarrus is that, "lex continens praeceptum obligat in cons-
cientia." In other words, if the law expressly prescribes or forbids something,
the law must be obeyed under pain of sin. Cf. Suarez, De Legibus, V, c. III,
n. 6.
26 Castro held that a purely penal law, i. e., one which simply prescribed a
penalty, bound in conscience only to the penalty unless the penalty were en
joined for something forbidden by divine positive law or by natural law. Cf.
Castro, De Potestate Legis Poenalis, XII; Suarez, De Legibus, V, c. IV, nn.
2, 3, 4.
I
tained two precepts,27 and he debated whether or not such a law

obliged in conscience to the penalty alone or to both penalty and
the act prescribed. But Suarez, who also denned a mixed law as
one containing two precepts, could not have any doubt concerning
the binding force of such a law. Since every precept gives rise to
an obligation—according to Suarez—a law containing two precepts
must give rise to a double obligation. For this reason Suarez in
cludes the idea of obligation in his definition of a mixed law. He
says: "A mixed law is one that is at the same time moral and penal,
and contains virtually two precepts, one to do or to avoid a certain
action, and the other to accept a certain penalty if the former pre
scription is not carried out." 28
After Suarez, the concept of a purely penal law as one that obliges
in conscience only to the penalty and the concept of a mixed law as
one that obliges to the act and (in case of transgression) to the
penalty, gradually gained in popularity.29 Today, it may be said
that these are the only current concepts of a purely penal law and of
a mixed law respectively.30 However, Billuart and St. Alphonsus,
two of the greatest theologians of the eighteenth century, reflect the
ideas of both Castro and Suarez. The effect of this twofold influ
ence in the writings of St. Alphonsus has already been noted.31
Billuart speaks of "a purely preceptive law" which is a law that
commands but does not impose a penalty on those who transgress
27 Cf. supra, p. 88.

™De Legibus, V, c. IV, n. 2.
28 1. Teodori, "Lex civilis-poenalis," Apollinaris, 3 (1930), 443, makes a
distinction between a purely penal law and a merely penal law. According to
him a purely penal law does not oblige to anything; while a merely penal law
obliges only to the penalty. There is no foundation for such a distinction ex
cept perhaps a misunderstanding of the terminology of Castro. It is true that
the older authors generally used the term "purely penal law." Cf. Suarez, De
Legibus, V, c. IV, n. 2; Billuart, IV, diss. IV. art. IV. Reiffenstuel (d. 1703),
Jus Canonicum Universum (Monachus, 1702), I, p. 124 ff, uses "mere poenales."
"Pure poenalis" is used consistently by Priimmer, Man. Theol. Mor., I, n. 209.
The term, "merely penal law" is more favored nowadays. Cf. Michiels, Normae
Generales, I, p. 261 ; Merkelbach, Sum. Theol. Mor., I, n. 286.
30 This is not intended to mean that all modern authors agree as to the
explanation of a purely penal law. Cf. infra, p. 94, note 35.
51 Cf. supra, p. 89, note 18.
-■
the law.32 He defines a purely penal law in almost the very words
of Castro. "A purely penal law," he says, "is one that imposes a
penalty on those who do or omit something, but without explicitly,
at least, prescribing or forbidding anything." After defining a mixed
law as "one that prescribes or prohibits an act and at the same time
imposes a penalty on transgressors," Billuart distinguishes two kinds
of mixed laws. The first kind is "copulative, as though the law read
—let no one export grain from the province and let him who does
export it, pay a fine; which may be expressed in a single proposi
tion thus: We forbid anyone to export grain from the province
under penalty of paying a fine." The second class is disjunctive,
as though it read, "Let no one export grain from the province, or if
he does export it let him pay a fine." After giving these definitions,
Billuart says: "I hold as certain that a mixed copulative law obliges
under pain of sin to place or omit the act; because it truly prescribes
or forbids." He claims that it is also certain "that a mixed disjunc
tive law does not oblige definitely to the placing or omitting of an
act, nor definitely to the penalty, but to one or the other." 33 Billuart
is mainly concerned with the binding force of his "purely penal law."
He asks: "Whether it (the purely penal law as he defined it) obliges
under pain of sin to place or omit the act, or only to submit to the
penalty?" He claims that more probably such a law binds to both
the act and the penalty. The reason he gives for his opinion is in
teresting. He says: "The reason is, because according to the com
mon understanding and the common way of speaking, if a person
says: whoever does this will be condemned to death, it is the same
thing as though he said—I forbid this to be done, and whoever does
it will be condemned to death; hence even though he does not ex
plicitly prohibit or prescribe, he does this implicitly." 34 It is evi
32 Summa, Tract, de Legibus, t. IV, diss. IV, art. IV.

83 Although Billuart is speaking here of what he calls a mixed disjunctive
law, it is clear that this type of law would now be called a purely penal law.
Hence Michiels cannot be justified in his claim that Billuart repudiated the "dis
junctive obligation" as the explanation of the purely penal law theory. Cf.
Billuart, loc. cit.; Michiels, Normae Generales, I, p. 260.
34 The fact that Billuart even asks whether a purely penal law binds in
conscience to more than the penalty, shows how far removed he is from the
'
dent that Billuart, like Suarez, considered "precept" and "obliga

tion" correlative terms.
Billuart and St. Alphonsus were the last great theologians to
define a purely penal law according to its content, i. e., according
to the wording of the law. While later authors might disagree as to
the explanation of a purely penal law, they are unanimous in defining
it as a law that binds only to the penalty.35
It will be of no advantage for the purpose of this study to inquire
further into the history of the purely penal law theory. The in
vestigation that has been made was necessary in order to understand
clearly what the various authors mean when they say that tax laws
are purely penal laws, or that tax laws are probably purely penal
laws. It was also necessary in order to form a critical judgment of
the value of their statements. For example, Angelus is always cited
as an exponent of the theory that tax laws are purely penal. But
Angelus based his opinion on the wording of the tax laws. He
claimed that tax laws were usually worded in a hypothetical form,
e. g., if anyone is found not paying this tax, let him pay the pen
alty.™ Since no tax law today is put up in this form, it is incorrect
to cite Angelus in favor of the opinion that tax laws today are purely
penal.
2. Possibility of the purely penal law theory. It is by no means
the unanimous opinion of theologians that there can be a purely
penal law, i. e., a law which obliges in conscience only to the pen
modern concept of a purely penal law. Today, it might be asked whether any
purely penal law exists but not whether—in the supposition that such laws do
exist—they bind to both the penalty and the act. By definition nowadays, a
purely penal law binds only to the penalty.
35 The explanation of how the obligation of a purely penal law in the mod
ern sense binds, is given very well by U. Lopez, "Theoria Legis Mere Poenalis,"
Periodica, 27 (1938), p. 206: "Generatim, auctores duas proponunt explicati-
ones. Alii dicunt: obligamur ad poenam, i. e., 'ad acceptandam poenam ut
iustam.' Ferreres, Theol. Mor., I, n. 205; Marc-Raus, I, n. 181; Merkelbach,
I, n. 287 ; alii proponunt obligationem disiunctivam, i. e., vel ad implendum
quod praecipitur, vel ad sustincndam poenam, quae secus imponetur. Sic
Ferreres, o.c., qui hanc sententiam vocat communissimam." Cf. also, Priimmer,
Man. Theol. Mor., I, n. 209; Michiels, Normae Generales, I, p. 260, note 2.
38 Cf. Angelus, Summa Angelica, tit. Pedagium, n. 6.
alty. Among the older theologians, Sylvester,37 and St. Robert

Bellarmine 38 were very definite in their opposition to the opinion
that certain laws obliged in conscience only to the penalty. Among
the more modern writers, the same position is taken by Linsenmann,39
Koch,40 Wagner,41 Gillet,42 Renard,43 and to a certain extent by
Lopez 44 and Litt.45
The main objections of these theologians to the purely penal
law theory may be grouped under the following four headings: (1)
Law by its very nature carries with it a moral obligation, i. e., a ne
cessity in virtue of which the act prescribed must be performed and
the act forbidden must be avoided. But there is no possible moral
bond other than an obligation in conscience. Hence, by the very
fact that some act has been prescribed or forbidden, the doing or
omitting of that act becomes a matter of moral necessity. To act
otherwise would be to act against one's conscience. (2) The pen
alty which is attached to a law is not the end of the law but is only
a means. It is a sanction added to the law in order to insure the
observance of the law. In other words, the penalty is not prescribed
for its own sake but for the sake of the law to which it is attached.
According to the penal law theory, the end, i. e., the act prescribed,
or more precisely, that which is effected by the act prescribed, is
less obligatory than the means, i. e., the penalty. But since a means
is by its very nature (as means) ordinated to an end, it would seem
to be unreasonable to make the end less obligatory than the means
to that end. (3) Penalty and guilt are by their very nature correla-
31 Summa Sylvestrina (Antwerp, 1631), tit. Inobedientia.

38 De Controversiis (Naples, 1856), t. II, De Laicis, lib. III, cap. XI.
39 Lehrbuch der Moraltheologie (Freiburg in Brcisgow, 1878), p. 81 ff.
40 "Zu der Lehre von den sog. Ponalgesetzen," Tub. Theol. Quartalschr., 32
(1900), 204 ff; 34 (1902), 574 ff.
41 Die sittlichen Grundsdtze beziiglich der Steuerpflicht, p. 52 ff.
42 Conscience chritienne et justice sociale (Paris, 1922), p. 452 ff.
43 La Theorie des "leges mere poenales," p. 59 ff.
""Theoria legis mere pocnalis," Periodica, 29 (1940), p. 23 ff.
45 "Les lois dites purement penales," Revue Eccltsiasliquc de Liige, 30
(1938-39), p. 141 ff. Litt and Lopez are mainly concerned with the de facto
question of the existence of purely penal laws today, nevertheless they do ques
tion the intrinsic possibility of the theory itself.
r
tive terms. The existence of a penalty which obliges in conscience

presupposes the existence of guilt in transgressing the law. But by
definition a purely penal law excludes moral guilt in the transgres
sion. (4) By definition, law is "a certain ordination of reason, pro
mulgated for the common good by him who has charge of the com
munity." 46 If therefore a law is just, it prescribes or forbids the
doing of something for the good of the community. To act contrary
to the law would therefore be injurious to the common good and
unreasonable, and hence sinful.
The majority of theologians do not think that these objections
are serious enough to render the purely penal law theory untenable.
They answer the first objection by pointing out that the binding
force of a law comes from the will of the legislator who can bind the
consciences of the subjects either directly to an act or indirectly to
a penalty alone. They admit that every law must carry with it
some obligation in conscience, but they deny that this obligation
must necessarily be to perform or to omit the act. They see no
reason why the legislator should not bind only to the penalty in
things indifferent in' themselves. As for the second objection, the
upholders of the theory maintain that the relation of the penalty to
the law as a means to an end does not depend on the relative binding
force of penalty and law. It depends solely on the effectiveness of
the penalty as a means of making people observe the law. If de
facto the penalty does make people keep the law, there is no deordi-
nation of means to end in making the end less obligatory than the
means. The third objection, they say, is based on a misunderstand
ing of the nature of "guilt." Guilt is of two kinds, moral and
juridical. All that is required for the just infliction of a penalty is
juridical guilt. The truth of this statement, according to the up
holders of the purely penal law theory, is proved by every-day
experience. For example, a man parks his car on an inclined road
way. Through no fault of his, the brakes fail to hold the car and
the car crashes through a plate-glass window. The owner of the
store sues for damages and is awarded the judgment. Everyone
admits that the judgment is just and that the owner of the car is
40 Summa, I-II, q. 90, a. 4.

bound in commutative justice to pay for the damage despite the

fact that his previous action was in no way sinful. The sentence of
the judge, which has the nature of a penalty, is based on juridical
guilt, not on moral guilt. In a purely penal law, the penalty is
imposed because of juridical guilt.
The fourth objection mentioned above, is by far the most serious
objection to the purely penal law theory. The writer has not seen
an adequate answer to the objection and this gives rise to the suspi
cion that the objection is valid. For this reason it will be examined
more closely.
The objection may be put in syllogistic form thus: It is sinful to
act unreasonably. But it is unreasonable to break a law. There
fore, it is sinful to break a law.
Since all admit the major premise of the syllogism, i. e., that it
is sinful to act unreasonably,47 this discussion will center, around
the minor premise, i. e., that it is unreasonable to break a law.
The opponents of the purely penal law theory argue thus: Man
is destined to live in society by the ordination of God, his Maker.
It follows therefore, that every man has the obligation of doing those
things which will promote the good of the society and abstaining
from those things that will injure that good. But since men are not
perfect, some men will be ignorant of those things that will help or
harm the common good, others who have this knowledge will not act
according to it; and also, since the same end may often be effected
in a number of ways, one man will choose this means and another
may choose that means. In order, therefore, to eliminate as far as
possible the harm that would result from the ignorance and malice
of some men, and the confusion that would result from the mis
guided efforts of others, every society must have some one with
authority to direct other men in those things that pertain to the
common good, and with the power to punish those who ignore this
direction. This is the fundamental reason for the distinction be
tween the governed and those who govern in society. If all men
were wise enough to know and virtuous enough to do the things
necessary in order to provide for the common good, there would be
« Cf. St. Thomas, Summa, I-II, q. 18, a. 9.
'
no need for human authority. Since de facto man's intellect is weak

and his will is inclined to evil, authority is necessary for the main
tenance of the common good.48 It is self-evident that authority
could not bring about the common good without the power of making
and enforcing laws. The common good therefore, is the final cause
of law. This point is brought out clearly in the definition of law
given by St. Thomas. "Law is an ordination of reason for the com
mon good, made by him who has charge of the community." "
Having seen the necessity of law and its final cause, the material
cause of law will be examined. The material cause of law is the
object of the law, i. e., the thing about which the law is concerned.
In general, a law may concern itself with one of three classes of
things. (1) Things in themselves harmful to the common good.
There are many examples of such things, for instance, murder,
robbery, etc. These things are injurious to the common good by
their very nature and hence they are forbidden by the natural law.
They would be sinful even if they were not forbidden by any hu
man law. There is no possibility of things of this type being the
object of a purely penal law.50 (2) Things in themselves beneficial
to the common good. An example of this is the minimum wage.
By its very nature it is helpful to the common good for all employers
to pay their employees a living wage. Hence an employer would be
bound by the natural law to give his employees a living wage, even
though—as was the case for many centuries—no human law com
manded him to do so. When a human law does command some
thing of this nature, that law cannot be considered purely penal.51
(3) Things in themselves indifferent to the common good. Many
actions of themselves have no immediate and necessary connection
with the good of the community. Their influence on the common
good is due to the circumstances of time, place, etc. For example,
the speed at which a car is driven along the road does not of itself
harm or help the common good. A good car on a good road may
be driven safely much faster than a poor car on a poor road. Of
« Cf. HI, q. 95, a. 1.

« Cf. MI, q. 90, a. 4; ibid., a. 2.
50 Cf. Kenrick, Theologia Moralis (Philadelphia, 1841), I, p. 271.
" Cf. Kenrick, loc. cit.
\
course, the civil authority cannot make a law to cover each set of
circumstances so it usually makes a general law that no car shall
be driven at a greater speed than is consistent with the safety of
passengers and pedestrians, and several other particular laws setting
the maximum speed in different places based on the circumstances
that usually prevail in those places. But it is to be noted that what
ever laws are made, must be made for the common good.
The ordination of a thing to the common good which is brought
about by a law, cannot be merely negative, i. e., neither helpful nor
harmful to the common good. It must in some way contribute posi
tively to the common good. St. Thomas is very clear on this point.
In considering the essence of law, he asks: "Whether the law always
(italics added) is directed to the common good?"52 His answer
is so pertinent and clear that it will be given at length:
I answer that, as stated above, the law belongs to that which

is the principle of human acts, because it is their rule and
measure. Now as reason is a principle of human acts, so in
reason itself there is something which is the principle in respect
of all the rest: wherefore to this principle chiefly and mainly law
must needs be referred. Now the first principle in practical
matters, which are the object of the practical reason, is the last
end: and the last end of human life is bliss or happiness. . . .
Consequently, the law must needs regard principally the rela
tionship to happiness. Moreover, since every part is ordained
to the whole, as imperfect to perfect; and since one man is a
part of the perfect community, the law must needs regard prop
erly the relationship to universal happiness. Wherefore the
Philosopher, in the above definition of legal matters mentions
both happiness and the body politic: for he says (Ethic, v, 1)
that we call those legal matters just, which are adapted to pro
duce and preserve happiness and its parts for the body politic:
since the state is a perfect community. . . . Now in every genus,
that which belongs to it chiefly is the principle of the others, and
the others belong to that genus in subordination to that thing:
. . . Consequently, since the law is chiefly ordained to the com
mon good, any other precept in regard to some individual work,
must needs be devoid of the nature of law, save in so far as it
regards the common good. Therefore every law is ordained to
the common good.
62 MI, q. 90, a. 2.
r
According to St. Thomas, therefore, it pertains to the essence

of a law to be ordained to the common good. A law that is not
ordinated in this way would either be unjust, as Aristotle indicates,
or simply not a law, as St. Thomas expressly states. It follows from
this that the object of a law must be such that the observance of the
law promotes the welfare of the community, and conversely, non-
observance of the law is injurious to that welfare.
Thus far it has been seen that the final cause of law is the com
mon good and that the material cause of law, or the object of the
law, must be ordinated to the common good. Now the relation be
tween law and reason will be considered.
St. Thomas begins his treatise on law with the question: "Whether
law is something pertaining to reason?" " The answer of course,
is in the affirmative. St. Thomas argues thus: "The rule and meas
ure of human acts is in the reason since it belongs to reason to
direct to the end." But "law is a rule and measure of acts whereby
man is induced to act or is restrained from acting." It follows that
law is '"something pertaining to reason." This is not a statement
of the obvious fact that a law-maker must use his reason in making
his laws. The emphasis here is on the law in facto esse, not on the
law in fieri. In other words, St. Thomas is not speaking of the
process of making a law, but of the result of this process, i. e., the
law itself.
Those who hold the penal law theory seem to ignore or to mini
mize this point. They do not seem to perceive that the law itself,
the thing which is promulgated always pertains to reason—reason
as, "the rule and measure of human acts." They readily admit that
laws which forbid or command something already forbidden or com
manded by natural law do contain a rule or measure (norm of rea
son) that must be followed under pain of sin, but they claim that
in purely penal laws, there is no such rule or measure binding under
pain of sin. But it seems more logical, since it pertains to reason
to direct to the end, and since the end of every law is the common
good and the object of every law must have a positive ordination
to that common good, to conclude that the ordination of reason
« MI, q. 90, a. 1.
,
that is intrinsic to law, must be in every law in the same way. In

other words, every law is a rule or measure of human acts, deter
mined by reason. And since acts are good in so far as they conform
to this rule and are bad in so far as they deviate from it, every
human act that deviates from the rule or measure set by law is
contrary to reason and therefore sinful.64
This conclusion is strengthened by the teaching of St. Thomas
on another point. In treating of the good and evil in human acts
in general, he asks: "Whether an individual action can be indiffer
ent?" 55 He answers: "Every individual action must needs have
some circumstance that makes it good or bad, at least in respect of
the intention of the end. For since it belongs to the reason to
direct; if an action that proceeds from deliberate reason be not
directed to the due end, it is by that fact alone repugnant to
reason, and has the character of evil." If an action is sinful merely
because it is not directed to the due end, how is it possible for an
action to be free from sin in which the agent ignores the authori
tative direction to the due end contained in every law? In this
respect, the purely penal law theory seems to nullify the very pur
pose of authority, which, as has been seen,56 is precisely to direct
others in those things that pertain to the common good.
The exponents of the purely penal law theory do not attempt a
direct answer to the objection to their theory drawn from the un
reasonableness of law-breaking. Instead they try to show indirectly
that the objection is invalid by insisting that the end of the law,
i. e., the common good, can be attained without imposing an obli
gation in conscience to obey the law. Fear of the penalty, they
say, is often sufficient to insure general observance of the law and
thus the end of the law is attained. Therefore, they conclude, he
" What is said here does not refer to religious rules and constitutions.
The root of the obligation to observe religious rules and constitutions (as
such) is the free will of the religious who voluntarily assumes these obliga
tions. The root of the obligation to observe civil law is man's social nature:
the root of the obligation to observe ecclesiastical law of a general nature is
man's supernatural destiny.
06 I-II, q. 18, a. 9.
&« Cf. supra, p. 97 ff.
I
who breaks the law does not sin, provided the law-maker does not
intend to bind the subjects under pain of sin. This conclusion is
based on a misconception of the relation of law to the common
good.
The exponents of the purely penal law theory do not advert to
the fact that law is related to the common good only mediately
through human acts, since it is only through human acts that the
law can effect the common good. It follows that the common good
can never be perfectly attained unless the deliberate acts of all in
dividuals conform to the direction contained in the law. Further
more, since every individual is ordinated to the common good by
the very fact that God gave him a social nature, it follows that
no man can be perfectly good unless his human acts are in some way
directed toward the common good. As St. Thomas says: "The
goodness of any part is considered in comparison with the whole, . . .
since then every man is a part of the state, it is impossible that a
man be good unless he be well proportionate to the common good." 5T
As was pointed out,58 the law is the rule or measure whereby man
can judge whether or not his actions are proportionate to the com
mon good. If the acts of an individual do not conform to this rule
or measure, those acts are not good, and to that extent, neither is
the individual good. And this is true even though the majority of
the individuals subject to the law comply with the law and thus
bring about the common good substantially. The immediate ex
trinsic norm of morality in human acts is not the attainment of the
common good, but the law which by its nature is ordained to procure
the common good.
A word is necessary about an axiom often used by those who
hold the purely penal law theory, namely, he who can do that which
is greater, can do that which is less. Applying this axiom to the
power of a legislator to bind his subjects in conscience, they say
that it is a greater thing to bind to subjects to both act and penalty
than it is to bind to the penalty alone. Since the legislator can
certainly bind the subjects to both act and penalty, he can bind to
the penalty alone.
« MI, q. 92, a. 3, ad 3.
58 Cf. supra, p. 100 ff.
i
The fallacy here lies in the application of the axiom that he who
can do that which is greater can do that which is less. The axiom
is valid only in cases where the effect is divisible. For example, a
pane of glass two feet square is greater than a pane of glass one foot
square. And since a pane of glass two feet square can be divided
into smaller squares, he who can make the larger piece, can make
the smaller piece. It is also true that the area of both sides of a
pane of glass is greater than the area of only one side, but it is
rather evident that he who can make the pane of glass with both
sides, cannot make it with only one side. A pane of glass is not
divisible in that way. So, too, is it impossible to separate moral
obligation from the prescription of the law. The legislator has
the power to determine whether or not a certain thing should be
commanded or forbidden by law. He also has the power to add
sanctions to the prescription or prohibition. And since the law
does not presuppose the sanction, the law can exist without the
sanction. Hence the legislator can enact the greater (the law plus
the sanction) or he can enact the lesser (the law without the
sanction).59 But once the legislator does enact a law, he has no
power to determine the extent of its binding force. For law by its
very nature is a rule or measure of human acts. Therefore the law
that is enacted immediately becomes a rule or measure whereby the
goodness or malice of human acts is judged. Those acts which
agree with the measure are good; those acts which disagree with it
are bad.
3. Criticism of the theory that all tax laws are purely penal laws.
Praenotanda. If the purely penal law theory in general is un
tenable, it is not strictly necessary to discuss the merits of arguments
advanced by authors to prove that tax laws in particular are purely
penal laws. However, since the vast majority of theologians con
sider the purely penal law theory at least probable, the arguments
will be investigated in order to show that even granting the proba
bility of the penal law theory in general, there is no good proof
that tax laws are de facto purely penal laws.
69 Since the sanction presupposes a law, a legislator could not enact a

sanction independent of some, at least pre-existing, law in respect of which
it is the sanction.
r
i
Thesis: The Theory That All Tax Laws Are Purely Penal
Laws Has Little Probability Either from Intrinsic
or from Extrinsic Arguments
Proof: A. Analysis of the Intrinsic Arguments
1. The intention of the legislator. It is commonly admitted by
those who hold the purely penal law theory that no law is purely
penal unless the legislator intend to make it such.60 Furthermore,
the intention of the legislator to bind only to the penalty must be
proved, it may not be presumed.61 For the presumption is that
every law binds in conscience both to the act and to the penalty, as
is evident from the words of St. Paul to the Romans: "He who
resists the authority, resists the ordinance of God. . . . Wherefore
you must needs be subject, not only because of the wrath but also
for conscience' sake." 62
Two difficulties stand in the way of proving directly that any
legislator today has the intention of binding only to the penalty.
The first difficulty is the modern conception of the nature and
function of law. As Lopez says: "Among the great variety of opin
ion (concerning the nature of law) nearly all agree in this that there
is a complete separation between the juridic order and the moral
60 Cf. Castro, De Potestate Legis Poenalis, I, c. XI; Suarez, De Legibus,
V, c. IV, nn. 2, 3, and 7; Aertnys-Damen, Theol. Mor., I, n. 159.
61 Cf. Lopez, "Theoria Legis mere Poenalis," Periodica, 27 (1938), p. 209.
Lopez says: "Ad hoc ut lex aliqua, etsi poenam contra violatores contineat,
haberi possit ut mere poenalis, requiritur ut constet de positiva mente lcgisla-
toris, nolentis subditos obligare ad culpam, sed tantum ad poenam." Not all
authors admit this. Navarrus held that if the law contained a temporal pen
alty, i. e., a penalty to be inflicted in this life, the law bound only to that pen
alty unless the contrary were evident. Cf. his, Manuale Confessariorum, c.
XXIII. This also seems to be the opinion of Konings, Theologiae Moralis S.
Alphonsi Compendium (New York, 1882), I. n. 178; and of Vermeersch, The-
ologia Moralis (Bruges, 1926), I, n. 178.
62 Rom. 13, 2 and 5. As a matter of fact, this text is a very strong argu
ment against the whole purely penal law theory, for St. Paul makes a clear
distinction between the "wrath," i. e., the penalty, and "conscience," i. e., the
obligation in conscience. Yet he makes no distinction between laws that bind
only to the penalty and laws that bind to both the penalty and the act. The
exponents of the purely penal law theory interpret this passage as meaning
that a legislator has the power to bind to both the penalty and the act.
order." 63 As a result of this concept of law "modern legislators

do not consider the question of inducing or of not inducing a moral
obligation." "4 The second difficulty arises from the fact that in
modern states, laws are usually made by a legislative assembly and
not by one individual. Where this is the case, the only certain
method of finding out whether or not the legislative body intends
to bind only to the penalty, is to propose the question to the assem
bly and to take up a vote.
In lieu of direct proof of the intention of the legislator to bind
only to the penalty, authors usually propose signs of the "implicit
will" of the legislator. Thus Davis says that since the state "exer
cises considerable vigilance, inflicts heavy fines, and imposes heavy
direct taxes to recoup losses," the obligation to pay taxes is merely
penal.65 He limits his conclusion to England, but the same vigilance,
etc., is found in every country hence he could draw the same con
clusion for every country.
The conclusion which Davis draws from these facts is not the
only possible conclusion, nor is it the most logical conclusion. When
a legislator passes a law and exercises "considerable vigilance" over
the observance of the law, the most obvious conclusion is that he
expects a number of people to break that law; and when he imposes
"heavy fines" on those whom he apprehends breaking the law, the
obvious conclusion is that he does not want the law broken. As
Bouquillon says: "It is of no avail to argue, either from the gravity
of the fine imposed on those who defraud taxes, or from the multi
tude of officials appointed to collect taxes, that the legislator does
not intend to leave anything to the consciences of the subjects . . .
for if the amount of the fine is extraordinary, it seems rather to
indicate an obligation; otherwise it would hardly be reasonable or
just; and the multitude of officials by no means proves that the
legislator does not wish to prescribe immediately and absolutely,
but it does prove that in this matter he cannot trust the good will
of the subjects." "
83 Op. cit., p. 210.

e*Ibid., p. 213.
85 Moral and Pastoral Theology, p. 339.
88 Theol. Mor. Fund., n. 215.
'
Marc appeals to the wording of the laws as an indication that

the law is purely penal. According to this author, if a law is ex
pressed disjunctively, e. g., do this or pay the penalty; or if the law
prohibits an act merely by implication, e.g., let him who does this
pay a penalty, the legislator intends to bind only to the penalty.87
This criterion is useless today because tax laws are not put up in
either of these forms.
In conclusion, it may be stated that even if the intention of the
legislator could make a law purely penal, there is no evidence that
such an intention exists regarding tax laws.
Since there is no solid ground for asserting that in the matter
of taxes legislators intend to bind their subjects only to the penalty,
and since no law can be purely penal without that intention, it is
not strictly necessary to examine any additional arguments advanced
in support of the theory that tax laws are purely penal laws. How
ever, for the sake of covering all the grounds alleged in favor of
the view that tax laws are purely penal, the criticism of the argu
ments for this theory will be continued.
2. Custom. Custom is sometimes mentioned as a proof that
tax laws are purely penal laws. In order to understand the weak
ness of this argument it is necessary to appreciate some fundamental
notions regarding custom in general. The discussion may be lim
ited to custom as a means of interpreting law because in the matter
of taxes, there is no question of a custom introducing a new tax law.
Custom may be taken either materially or formally. In the
material sense, it simply means a series of similar acts or omissions
placed by a community over a rather long period of time. For
example, those who stand in crowded trolley cars do not—usually—
move to the rear of the car. This is a material custom. In other
words, custom in this first sense is merely the existence of a series
of acts. In the formal sense, custom includes both the fact, i. e.,
the existence of the series of acts, and the relation which the fact
bears to law. It considers the fact as a norm of action that is either
commanded, prohibited, or allowed.68 In order that a material
87 Institutiones Morales, I, n. 183.

68 Cf. Michiels, Normae Generales, II, pp. 4 and 5.
custom may become a formal custom, the legislator must approve the
custom in some way.69
It is evident that only a formal custom, i. e., one which has the
consent of the legislator, has any value as proof that tax laws are
purely penal laws. However, before the existence of a formal cus
tom can be proved it is necessary to prove the existence of a material
custom, since a formal custom is nothing else than a material cus
tom confirmed by the consent of the legislator. It is well to note
that the material custom in question here is not the mere fact that
some people do not pay taxes, but the fact that when people do not
pay taxes they do not judge themselves guilty of sin unless they
refuse to submit to the penalty.
In proof that a material custom of this kind does exist, gratuitous
statements such as the following are usually offered: "Sensus com
munis, which is the best interpreter of law, has always understood
the matter in this way." 70 Or this: "Even conscientious people
interpret tax laws of this country in this way." 71 These are mere
statements of the very fact that has to be proved. There is no at
tempt to substantiate the statements by questioning the people con
cerned. Following a general principle, which all admit, namely,
a fact must be proved, it may not be presumed, Bouquillon states
very bluntly: "Those authors exaggerate who say that sensus
communis ... his always understood tax laws to be purely penal
laws." 72 And regarding the actions of "conscientious people," Wag
ner very pointedly remarks that it is much more probable that con
scientious men pay taxes because they are conscientious."
69 Cf. Priimmer, Man. Theol. Mor., I, n. 278.

™Berardi, Praxis, II, n. 413.
71 Genicot-Salsmans, Inst. Theol. Mor., I, n. 574.
72 Theo. Mor. Fun., p. 215, note 1.
73 Die Sittlichen Grundsatze beziiglich der Steuerpflicht, p. 62. He main
tains that it would be difficult to prove the contrary: "Denn es wird niemals
nachgewiesen werden können, dass allgemein auch die Gewissenhaften nicht aus
wahrer unmittelbarer Gewissenspflicht ihre Steuern entrichten oder dass dieses
auch nur grosstenteils der Fall sei." Wagner also points out that when people
do not think it is a sin to evade taxes provided they submit to the penalty, this
attitude is more probably the result of what they have been taught by pastors
and other priests, than the result of any personal thought on the matter.
If anyone should believe that a material custom does exist where

by people who do not pay taxes do not consider themselves guilty
of sin unless they refuse to submit to the penalty, it is still necessary
to prove the consent of the legislator before the custom has the force
of law. No proof is given of this consent. And what has been said
already about the intention of the legislator concerning the binding
force of laws, may be applied here to show the extreme improba
bility of any consent ever being given to this "custom." Legislators
do not consider the obligation of laws in the forum of conscience;
their only concern is the external forum. And all the fines, vigilance,
etc., with which legislators guard the observance of their laws, prove
definitely that they intend to bind the subjects to the observance of
the laws in the external forum. Their negative attitude toward the
obligation in the internal forum can hardly be construed as positive
approval of a custom that entails disregard of law in the external
forum.74
3. Miscellaneous arguments. According to Davis, it would be
unreasonable "to expect good citizens, who are certainly in the
minority, to be obliged to pay taxes, whereas so many others openly
repudiate the moral obligation, if there is one." ™ In other words,
since the law is not accepted by the majority of the citizens as im
posing an obligation to the act, it does not bind the others to the
act.
The best refutation of this argument is taken from the first
volume of Davis' work. He says: "Acceptance by the subjects is
not necessary to the binding force of law, because the lawgiver has
power to impose law on the will of his subjects." 76 To make the
case against his argument more conclusive, he continues: "The
contrary doctrine has been explicitly condemned by Pope Alex
ander VII when he condemned this proposition: 'The people do not
sin even if, without any cause, they do not accept a law promulgated
7* Regarding the place of custom in modern states, Merkelbach says:

"... ceteroquin in iure hodierno aestimatio et consuetudo populi nullum
potestatem authentice interpretandi aut abrogandi leges obtinet." Sum. Theol.
Mor., II, n. 627.
75 Moral and Pastoral Theology, III, p. 339.
i0Op. at., I, p. 173.
^
by their Prince.' If law depended on the acceptance by the people,

the supreme authority in Church or in the State would more truly
be said to be governed than to govern." This principle may be
applied with equal force either to the acceptance by the people of
an entire law or to the acceptance of an interpretation of the law.
It follows that if a tax law does impose an obligation in conscience,
the obligation is in no way diminished or annulled by the fact that
it is repudiated by any number of people.77
Crolly mentions an interesting argument. He says that in every
well ordered state, all tax laws bind in the same way. But indirect
taxes are commonly considered to be merely penal laws. Therefore,
direct taxes should also be considered merely penal laws.78 Crolly
does not explain why the argument could not be used to prove the
contrary opinion. Direct taxes are generally considered as laws which
impose an obligation to the act prescribed; therefore, indirect taxes
should also be considered as laws which impose the same type of
obligation.
The final argument that will be considered is taken from Crolly
also. He says: "It is far more favorable to the peace and tran
quillity of the republic and the welfare and peace of the subjects,
that on the one hand, the subjects are not permitted to judge the
justice of a law which is passed by the supreme legislator—unless it
contradicts the laws of God or of the Church—and that on the
other, a burdensome tax law does not impose new duties on the
people." 79 Tax laws may be burdensome, but that fact alone could
77 The principle quite commonly held, namely, that if the greater number
of people do not accept a law, the law does not bind (cf. S. Alph., I, 139),
would not affect the obligation of paying taxes unless de facto the greater
number of people did not observe the tax laws. This is true because the prin
ciple mentioned is based on the presumption that non-observance of the law
is an indication of the unreasonableness of the law. Actually most people do
pay taxes, therefore it cannot be presumed that it is unreasonable to pay taxes.
It is well to note that if de facto the majority of the people did not observe
a certain tax law, the presumed unreasonableness of the law would nullify
the entire law. In other words, there would be no obligation—either to pay
the tax, or to observe the penalty.
78 Disputationes Theologicae, III, n. 1010.
™Loc. cit.
not make them merely penal, for this depends on the will of the legis
lator. Crolly might use this argument to persuade legislators to make
tax laws purely penal, but as proof that they are such, it is worthless.
Proof: B. Analysis of the Extrinsic Argument
The argument from authority, as it is used in moral theology,
consists essentially in an appeal to the judgment of others concern
ing the probative force of intrinsic arguments advanced in support
of a particular thesis. An argument from authority gives rise to a
degree of extrinsic probability and a presumption of intrinsic proba
bility in the opinion for which it is invoked. There are definite
norms for estimating the degree of extrinsic probability given to a
thesis or proposition by the "authority" of theologians. Damen
reduces these norms to three general rules. After considering each
norm separately, the opinion that tax laws are purely penal laws will
be judged according to the norms in order to determine the degree
of extrinsic probability that is to be predicated of this opinion.
The first norm is: "Reason alone, or internal arguments consti
tute the probability of opinions (and therefore a certain or notable
preponderance of probability) ; hence no opinion can be probable
unless it is also such from reason or from the arguments (i. e.,
intrinsic arguments)."80
In saying that "reason alone constitutes the probability of
opinions (and therefore a certain or notable preponderance of prob
ability)," Damen means that intrinsic reason is the ultimate basis
for all probability.81 Hence, if there are no intrinsic reasons for
the truth of an opinion, there can be no extrinsic authority which
will make the opinion probable; and if the intrinsic arguments for
the opinion are weak, authority can give the opinion only weak ex
trinsic probability. However, Damen does not mean that one who
accepts the authority of another need know the intrinsic reasons;
all he need know is that the person whose authority he accepts, is
capable of a prudent judgment concerning the value of the intrinsic
80 The three norms are taken from Aertnys-Damen, Theol. Mor., I, n. 93.
81 Cf. St. Alph., Dissertatio de usu moderato opinionis probabilis, n. 83.
This dissertation was published in the fifth edition of the saint's Theologia
Morolis, lib. 1, tract. 1, De Conscientia, n. 69 (Bononia, 1763), p. 21.
reasons and is habitually truthful. For this is the function of author

ity, namely, to take the place of intrinsic arguments.82 It is entirely
in accord with reason for one man to accept the views of another,
especially in matters pertaining to theology, for the general learning
and truthfulness of skilled theologians creates a presumption that
their opinions are founded on intrinsic reasons.83 However, as
Merkelbach points out, "if it is evident that they (the theologians)
have erred, or have depended upon very weak reasons, their author
ity in this case vanishes." 84 The objective value of the authority of
theologians is directly proportional to the value of the intrinsic argu
ments upon which they base their opinion.
A careful study of the arguments advanced in support of the
opinion that tax laws are purely penal laws, seems to warrant the
conclusion that these arguments, while not in every case absolutely
worthless, nevertheless are generally lacking in solid foundation. It
would follow therefore, that the argument from authority cannot
make the opinion that tax laws are purely penal laws, truly probable.
The second norm is: "Extrinsic probability from the authority of
learned men is of such value, that it is equal to the intrinsic proba
bility of reason; for this is the function of authority, that where
reason is not apparent, it takes the place of reason itself, creating
a certain presumption that the many and learned authors who hold
some opinion have solid reasons." Regarding this norm, it suffices
to say that the presumption that theologians have solid reasons for
their opinions would, of course, yield to the fact that seems to have
been established by the analysis of the arguments, namely, that in
this case the reasons are not solid.
The third norm is: "The authority of theologians is not to be
judged from their multitude but from their importance; so that the
authority of a few or even of one Doctor endowed with special
learning and piety, is sometimes to be preferred to the authority of
many."
82 Cf. St. Alph., op. tit.
88 This does not signify that authority supplies for the lack of intrinsic
reasons. It means that in the case of one who is not capable of judging in
trinsic reasons, or who does not care to investigate the intrinsic reasons, the
authority of the learned and truthful man can be accepted instead.
siSum. Theol. Mor., II, n. 101.
112 The Moral Obligation o) Paying Just Taxes
An impressive number of theologians hold as at least probable the

opinion that tax laws are purely penal laws.85 And this number in
cludes not only ordinary "text-book" compilers, but also theologians
of great renown. When the majority of theologians hold an opinion
as probable there is very strong presumption that de facto the opin
ion is based on sound intrinsic arguments. But it must be remem
bered that presumption, no matter how strong, always yields to fact.
Moreover, the impression that the argument from authority is a
citadel of imposing strength from sheer weight of numbers vanishes
when we consider two facts. First, there is no attempt on the part
of the defenders of the purely penal law theory to screen the opinions
of authors in order to find out just what they consider probable in
this matter and what they do not consider probable. As a result,
authors who hold as probable only that the obligation to declare tax
able goods is purely penal are lumped together with those who hold
that the obligation to pay is purely penal before demand for pay
ment has been made and with those who hold that this obligation is
purely penal even after this demand. It even happens that authors
who expressly refrain from judging the probability of the opinion
that tax laws are purely penal are found in this "lump"! 86 In the
second place, an author who merely copies from someone else is not
85 This number includes not only those who hold the theory but also those
who, while upholding some other opinion as their own, allow that this opinion
is probable.
86 For example, Berardi says: "Nee desunt Theologi magni nominis qui
hoc probabile esse censent. (Lugo, Frassinetti, Navarrus, Gury, Alph.)." Lugo
holds that probably there is no obligation to pay a tax before demand for
payment has been made. He does not speak of the obligation being purely
penal up to the time demand is made, but it seems that his opinion would
exclude this theory. Cf. supra, p. 54. Frassinetti, Compendio d. Teol. Mor., I, p.
304, says merely that many authors consider tax laws purely penal laws and
points out that many circumstances may prompt the confessor to be lenient in
this matter. Gury follows St. Alphonsus who refused to pass judgment on the
probability of the opinion. Cf. supra, p. 62. For other examples of mislead
ing and gratuitous appeals to the argument from authority, cf. Ballerini, Opus
Tkeol., Mor., I, n. 154, p. 325: "Non defuere doctores, qui leges istas de tribu-
tis haberent tanquam leges ut plurimum poenales: confer Lugo disp. c. n. 38";
Bucceroni, Insti. Theo. Mor., I, n. 232; Genicot, Tkeol. Mor., I, n. 574.
J
to be considered as an independent authority.87 This consideration

alone reduces considerably the number of those who may be ap
pealed to as authorities in the question of the obligation imposed
by tax laws.
Finally, the entire argument from authority for the opinion
that tax laws are purely penal laws is weakened considerably by the
fact that the greatest names in moral theology are missing from
the list of those who consider the opinion probable. St. Antoninus,
Molina, Suarez, Lugo, Billuart, and St. Alphonsus cannot be put
on the list of those who say: the opinion that tax laws are purely
penal laws is probable.
Considering then the weakness of the intrinsic arguments for
the opinion under discussion and the consequent weakness of the
extrinsic argument, it appears reasonable to claim that the thesis
proposed is well founded, namely:
The Theory That All Tax Laws Are Purely Penal Laws Has
Little Probability Either from Intrinsic or
from Extrinsic Arguments
II. The Theory That All Taxes Are Due in Virtue of
Commutative Justice
1. Notion of commutative justice. Since it is proper to com
mutative justice to direct man in his relations with other men,88 the
subjects to be treated in the present consideration will be: first, the
termini of the relation, then the object of the relation (which may
be spoken of as the object of the virtue itself since the object of the
relation is the same thing as the object or matter of the virtue), and
finally, the mean or norm of the relation.
A. The termini of the relation. Justice (by which is meant the
virtue of justice in its most generic sense) directs man in his rela
tions with other men. As St. Thomas says: "Justice directs man in
87 Cf. Aertnys, Theol. Mor., I, n. 72 : "Possunt enim decem vel plures

Auctores tenere aliquam opinionem, quorum auctoritas vix quidquam magis
confert ad eius probabilitatem, quam auctoritas unius, quem forte illi sine
rei examine ad discussiones secuti sunt."
88 St. Thomas, II-II, q. 57, a. 1; ibid., q. 58, a. 5.
two ways: first as regards his relations with individuals, secondly as

regards his relations with others in general, in so far as a man who
serves a community serves all those who are included in that com
munity. . . . Now it is evident that all who are included in a
community stand in relation to that community as parts to a
whole. . . ." 89 Further on St. Thomas says: "A twofold order may
be considered in relation to a part. In the first place there is the
order of one part to another, to which corresponds the order of one
private individual to another. This order is directed by commuta
tive justice, which is concerned about the mutual dealings between
two persons. In the second place there is the order of the whole
towards the parts, to which corresponds the order of that which
belongs to the community in relation to each single person. This
order is directed by' distributive justice, which distributes common
goods proportionately." 90
Commutative justice, then, directs the relations of one private
individual with another. The emphasis here is on "private" and
not on "individual," for either the terminus a quo or the terminus
ad quem of the relation may be a group of individuals as long as the
group may be considered a private group, i. e., as long as the group
is still a part and not the whole of the community. If the terminus
a quo is a public group, i. e., the community, or some one acting
in the name of the community, distributive justice is involved. If
the terminus ad quem is the community or some one acting in the
name of the community, legal justice is involved. These distinctions
must be kept in mind for a proper understanding of commutative
justice.91
B. The object of the relation. Commutative justice directs the
relations of one private individual with another, but it is evident
that certain relations between private individuals are governed, not
89 Ibid., q. 58, a. 5.
90 Ibid., q. 61, a. 1.
91 It is to be noted that the terminus a quo of the relation which is directed
or governed by the various types of justice is the subject in which the virtue
resides. Thus the community qua community cannot be the subject of the vir
tue of commutative justice, any more than the individual qua individual can
be the subject of distributive justice.
V
by commutative justice, but by some other virtue. For example,

the acts of a child are subject to the direction of its parent, but
when the child does act according to the direction of its parent, this
pertains to piety or obedience and not to justice.
In order to determine which relations between private individuals
are governed by commutative justice, the proper object of the rela
tion must be considered.92
St. Thomas says that the object of justice (he is speaking of the
virtue in its most generic sense) is ius."3 Since the object of the
genus is ius, the object of every species in that genus must be some
kind of ius. The problem then, is to determine what kind of ius is
the object of commutative justice. St. Thomas will not be of much
help in this particular point since he usually speaks of commutative
justice in reference to its act, i. e., commutations, rather than in refer
ence to its proper object. The best explanation of the virtue accord
ing to its proper object seems to be given by Lugo.94
According to Lugo, ius which is the object of commutative jus
tice, is "a certain moral preference (praelationem) whereby this man
is morally preferred to others in the use of this thing because of a
peculiar (peculiarem) connection which the thing has with him;
for example, a wild beast has a peculiar connection with him by
whom it was captured." This definition is immediately open to the
objection that, "a superior seems to have this peculiar connection
with the acts of his subjects by reason of his superiority, and by
reason of this connection the superior ought to be preferred to all
others in regard to these acts, and the subject must place them at
the command of the superior. And yet this preference is not the ius
of commutative justice, nor does the subject sin against justice but
92 As was mentioned above (p. 113) the object of the relation is identical
with the object of the virtue itself.
83 II-II, q. 57, a. 1. Ius is often translated as "right," but the English
word is too narrow to convey a correct notion of the Latin term. For example,
ius civile is translated as "civil law."
94 De Iustitia et lure, disp. I, sect. 1. St. Alphonsus calls Lugo, "Princeps
inter alios theologos, post D. Thomam." (III, 552). The title is well deserved,
especially for Lugo's clear perception and presentation of difficulties that are
sometimes passed over.
against obedience when he does not obey his superior." B5 In answer

to this objection, Lugo points out, "that not every preference in rela
tion to something is the ius with which commutative justice is con
cerned, but only that preference whereby this man ought to be pre
ferred to others in the use of a certain thing; since by reason of the
peculiar connection which the thing has with him, the entire thing
ought to be referred and ordinated to his utility. This ordination is
very aptly signified when something is said to be mine or thine." **
Now the acts of an inferior are indeed subject to the direction of the
superior, but this subjection is not for the use or good of the superior.
In other words, the ius which a superior has over the acts of the
inferior is not for the utility of the superior but for that of the
inferior.
This answer points to the reason why acts commanded by a par
ent are not due in virtue of commutative justice. The purpose of
parental authority or ius is to benefit the child and not the parent.
Ius, then, as the object of commutative justice, may be defined
as a certain moral preference whereby this man is preferred to others
regarding the use of a certain thing because of a peculiar connection
which the thing has with him, so that the entire thing ought to be
referred to and ordinated to his utility, to the exclusion of all others.
Ius, thus defined, is the object of commutative justice and is cor
rectly translated as "right." It is usually referred to in this connec
tion as, "strict right."97
C. The mean or norm of the relation. Commutative- justice
directs the actions of one private individual in relation to the strict
right of another private individual. This direction may be either
prohibitive, in that it forbids the doing of anything that would in
jure the strict right of another private individual, or it may be pre
ceptive, in that it commands a positive act in deference to the strict
right of another private individual.98 There is no need to elaborate
95 Op. cit., n. 6.
96 Op. cit., n. 6.
97 Commutative justice is often called strict justice because it has this "strict
right" as its object. Whenever the terms, "strict right" and "strict justice" are
used in this dissertation, they are to be understood in the sense just outlined.
98 Cf. Lugo, disp. VIII, sect. 1, and 2.
^
on the prohibitive part of the virtue, for even though it may some
times be doubtful whether a person has or has not a strict right to
something, once this fact has been determined, commutative justice
enjoins everyone else to respect that right, and this consists in sim
ply not acting in contravention of that right. Of more importance
is the positive act prescribed by the virtue, since this act will be
involved if taxes are due in commutative justice.
St. Thomas calls this act "restitution" and says that it is "occa
sioned by one person having what belongs to another, either with
his consent, for instance on loan or deposit, or against his will, as in
robbery or theft." oa Restitution, therefore, is nothing more than
the setting aright of the relation between two individuals regarding
the strict right of one of them.100 The final point of inquiry then,
will be: how is this relation set aright? In other words, what is the
norm or mean whereby it is to be judged whether or not the relation
is correct? It is to be noted that until a person who possesses a
strict right over a thing is in some way separated from that thing,
he has no relations with other individuals based on that thing 101
and hence there would be no occasion for this act of commutative
justice with which we are concerned.
A person who possesses a strict right over a thing may be morally
separated from that thing in one of three ways: (1) he may give the
thing to some one else and in doing so he would voluntarily sever
the "peculiar connection which the thing has with him." Hence he
89 II-II, q. 62, a. 1; q. 61, a. 3.

100 This would seem to be the fundamental and proper sense of the word
"restitution." Most modern authors prefer to call this the wider sense or the
improper sense. Cf. Merkelbach, II, n. 278; Aertnys-Damen, I, n. 742. Ac
cording to them, "restitution" in the strict or proper sense, means restoring
something that has been taken from the owner against his reasonable will, or
restoring because of damage unjustly inflicted. However, since there is no dif
ference, as far as the virtue of commutative justice is concerned, between pay
ing a just debt and restoring stolen property, it is more correct to say that resti
tution in its proper sense includes both of these acts. When the term is limited
to mean the restoration of stolen property, etc., it seems more logical to say
that it is being used in a restricted sense, not in a strict or proper sense.
101 The virtue of commutative justice would, of course, prohibit any action
on the part of others whereby the thing would be taken away from the rightful
possessor. Cf. supra, p. 116.
could not expect to receive any return, either of the thing itself or
of its equivalent; (2) he may loan, let, or entrust the thing to some
one else without relinquishing his right to the thing, or he may sell
the thing, i. e., give it to some one on condition that he receive the
equivalent; (3) the thing may be taken from him against his will.
St. Thomas calls the second and third way, voluntary and involun
tary commutations respectively.102 It is the function of commuta
tive justice to direct these commutations.
In the supposition that an individual has a strict right to a
thing and has not relinquished or forfeited that right, any other in
dividual who may actually be in possession of that thing bears a
relation to the owner by reason of the right which the owner enjoys.
If the owner be unwilling that another possess the thing, that thing
is not being employed to his utility as his right demands. Hence the
possessor has the obligation to restore the property or, if it has
perished through his fault, to restore the equivalent.103 This resti
tution must be made according to an exact equality of thing restored
to thing taken, for if more than the thing which was unjustly taken
be restored, the former owner now has more than his right demands;
if less be restored, his right remains unsatisfied. If the owner is
not unwilling that the thing should be in another's possession, for
example, when the owner has loaned, rented, or entrusted the thing
to another, the individual may retain the thing until such time as
the owner reasonably demands its return. Once the owner does
demand the return of the property, he who possesses it must return
it in such a way that the thing returned is no more and no less than
the thing loaned, leased, etc. This same equality of thing returned
to thing transferred must be present in other commutations, such as
buying and selling, etc. But in these latter commutations the thing
itself is not given back but its exact equivalent must be, for as St.
Thomas says: "In these commutations something is paid to an in
dividual because of something of his that has been received. . . .
Hence, it is necessary to equalize res with res, so that one person
102 II-II, q. 61, a. 3.

103 In the case of bona fungibilia, i. e., money, grain, oil, etc., the equivalent
may always be restored unless there is some special value to this or that par
ticular coin, or sack of wheat, etc.
should pay back to the other just so much as he has become richer
out of that which belonged to the other. The result of this will be
equality according to the arithmetical mean which is gauged accord
ing to an equal excess in quantity." 104 St. Thomas goes on to ex
plain: "Thus five is the mean between six and four, since it exceeds
the latter and is exceeded by the former, by one. Accordingly if, at
the start, both persons have five, the one that is the receiver, will
have six, and the other will be left with four: and so there will be
justice if both be brought back to the mean, one being taken from
him that has six, and given to him that has four, for then both will
have five which is the mean." 105
An analysis of the fundamental mean of commutative justice
makes it plain that the basic principle in both voluntary and invol
untary commutations is precisely the necessity of an exact equiva
lence between res and res. Without this equality we simply do not
have commutative justice. The importance of stressing this point
seems necessary since a careful reading of the defenders of the
theory that taxes are due in commutative justice would indicate
that they have not clearly and sufficiently realized this point.
2. Criticism of the theory that tax laws bind in virtue of com
mutative justice.
Thesis: The Theory That Tax Laws Bind in Virtue of

Commutative Justice Is Only Doubtfully Probable
Proof: A. Analysis of the Intrinsic Arguments
1. The contract theory. Suarez, in defending the thesis that
tax laws are not purely penal laws, mentions rather casually that
there exists, "as it were, a contract, between the prince and the
subject, that he govern and they support him by paying taxes." 106
Suarez does not develop the idea, nor does he rely a great deal on
the existence of this contract to establish his claim that de facto tax
laws are moral laws binding in virtue of commutative justice. Never
theless, from his day down to the present time practically every
104 II-II, q. 61, a. 2.

105 Ibid., q. 61, a. 2.
106 De Legibus, V, c. XIII, n. 5.
author who holds that tax laws bind in virtue of commutative jus
tice, bases his view on the existence of some kind of implicit pact
or contract between the citizens and the state.
The authors of the two centuries immediately following Suarez
(the seventeenth and eighteenth centuries), it is true, do not use the
terms, "contract" or "pact" in discussing the relations between state
and citizen, but they do speak in such a way that there can be no
doubt that they contemplated some kind of contract as the root of
the obligation of paying taxes.107 It was not until the second half
of the nineteenth century that the terms "contract" and "pact" were
commonly used.108
The hesitancy of the older authors to use the terms is probably
due to the suspicion with which Catholic theologians of the time
looked upon the efforts of some non-Catholic writers to establish
the thesis that the state is the result of a free contract. This sus
picion culminated in the condemnation of Rousseau's Du Contrat
Social in 1772. The discussions occasioned by this condemnation
brought out clearly the difference between Rouseau's contractual
theory of the origin of the State and the tenable theory held by
Suarez and others. Hence, later authors could use the terms "con
tract" and "pact" in reference to the obligation of paying taxes with
out fear of being misunderstood or of being accused of unorthodoxy.
However, if these authors did avoid the terms for the reason
stated, it would indicate that they did not understand the argument
used by Suarez. Suarez did not identify the contract, which accord
ing to him, gave rise to the obligation of paying taxes, with the
contract which he claimed gave rise to the state. Indeed no one
who considers the matter can attempt to identify these two con
tracts, for the contract which gives rise to the obligation of paying
taxes—in the supposition that one exists—necessarily presupposes
the existence of the state, for the state is one of the contracting
107 Billuart speaks of a "tacit promise," diss. IX, a. VII, n. 2. Concina, VI,
diss. V, c. V; and Patuzzi, tract. I, diss. III, c. 14, call the tax a stipend, indi
cating that they likened the relations between citizen and state to the relations
between employer and employee. Hence, they had in mind a sort of wage con
tract.
108 Cf. supra, pp. 65, 67.
V
Analysis of the Various Views . 121
parties. It is impossible therefore to maintain that this contract

is the same as the contract which gives rise to the state.109
Before beginning a refutation of the argument that taxes are due
in commutative justice because of a tacit contract or pact, it will be
advisable . to review some fundamental notions regarding contracts
in general.
According to the common definition a contract "is the agree
ment of two or more persons about the same thing, which begets an
obligation in at least one of the contracting parties." 110 Only that
type of contract which begets an obligation in both contracting
parties is of interest here, because if there is a contract whereby the
citizens are bound to pay taxes in commutative justice, the same
contract would oblige the state in commutative justice to perform
its function of caring for the common good and thereby making an
equivalent return to the tax-payers.
Every contract is made up of three elements: the subject, the
matter, and the form. All three elements are essential, for if even
one of them is lacking, there is no contract. A word about each of
these three elements is in order, (a) The subject of contracts. By
natural law, those and only those who have the use of reason are
capable of entering into a contract. Excluded therefore, are in
fants, children who do not have the use of reason, those who are
perpetually insane, those who are temporarily deprived of the use
of reason. There is no need to discuss the further limitations made
by positive law as to the capability of certain classes of people to
make contracts, (b) The matter of contracts. The matter of a con
109 Even K. Wagner, who is usually very exact, seems to miss this point
since he rejects the contract argument as proof that taxes are due in commu
tative justice on the ground that, "die Staatvertragstheorie der alten Scholastiker
vollstandig als ganz unhaltbar aufgegeben ist." Die sittlichen Grundsatze, p.
65. Wagner could not reject the argument for this reason unless he considered
the two contracts identical or at least so intimately connected that the truth or
falsity of the contractual theory of the origin of the state carried with it the
truth or falsity of the contractual theory of the origin of the obligation to pay
taxes. But Wagner gives no hint that he averted to the second possibility so
it would seem to be justified to infer that he identified the two contracts.
110 Aertnys-Damen, Theol. Mor., I, n. 840; cf. Merkelbach, Sum. Theol.
Uor., II, n. 451.
tract must be something that can fall under the dominion of man.
In general, this means anything that can be the object of ius in the
sense denned above, i. e., anything that can have a peculiar con
nection with a person in such a way that the thing must be referred
to his benefit or utility exclusively.111 (c) The form of contracts.
The form of a contract is the consent which each contracting party
must freely give to the terms of the contract. This consent must be
internal, deliberate and free, in some way manifested externally, and
finally, it must be mutual.
The contract which is said to be the basis of the obligation of
paying taxes will be examined in order to show that such a contract
does not contain the three elements necessary to every true contract.
(a) The subject of the proposed contract. It has been seen that
the state must be one of the contracting parties. Most authors, it
is true, speak in such a general way as to give the impression that
when they refer to a contract as the basis of the obligation of paying
taxes, they mean the contract which, it is claimed, gives rise to the
state. But this cannot be, for the state is the terminus ad quem of
the obligation which the citizens have of paying taxes, therefore the
state must also be the terminus a quo, or subject of the obligation
to provide for the good of the citizens.112 In other words, the
111 Cf. supra, p. 116.

112 "State" is not to be confused with "Government" for these two things
are really distinct. "Government," usually referred to as "the government," is
the particular kind of political organization in force in a state. That state and
government are distinct is shown by the fact that the same state may have
successively different governments. Thus, the Russian state did not cease to
exist in 1917, but a particular Russian government did cease to exist. A gov
ernment is merely the agency whereby the state functions. For this reason, the
government is not the terminus ad quem of the obligations of the citizens, nor
is the government the real owner of public funds, lands, etc. If the govern
ment were the real owner, these things would become res nullius whenever the
government ceased to exist, unless the government had previously disposed of
them by gift, or owed them to somebody by reason of a debt in justice. Per
haps the most striking proof that a government is a mere agency of the state
is the persistence of public indebtedness through successive governments. No
one could justly claim, for instance, that the debts contracted by the Russian
monarchical government lapsed with the overthrow of that government. Simi
larly, no one could justly claim that debts owed to the Russian monarchical
mutual exchange in the contract is between citizens and state. It

follows, therefore that the contracting parties are the citizens and
the state. This point is insisted upon, because, as will be seen, this
is precisely one of the weakest points of the theory now being dis
cussed.113 However, for the sake of making the point clearer, let it
be granted for the moment that the state is not one of the contract
ing parties. In this supposition, i. e., if the state be not the other
contracting party with whom the citizen enters into contract, there
remain only two possibilities as to whom this other party might be.
It might be either other private individuals or the officials who rule
the state. But it cannot be other private individuals because the
contract begets in the other contracting party a strict obligation in
commutative justice to care for the common good, and no private
party as such has such an obligation. Nor can it be the officials who
rule the state. The officials, it is true, have an obligation in com
mutative justice to care for the common good according to the pur
pose of the office which they fill, but this obligation arises from an
explicit contract which they make with the state, not with any in
dividual citizen. Therefore, if they fail in their duty, they are
bound to restore part of their salary, not to any tax-payer, but to
the state. But the contract under consideration here begets an obli
gation towards the citizen who pays taxes. If the other contracting
party fails to abide by the contract, he must restore the tax money
(or part of it) to the tax-payers. There is no course left but to con
clude that the other party with whom the tax-payer enters into
contract, is the state and the state alone.
Regarding the tax-payer, who is one party to the contract which
begets the obligation of paying taxes, there is a serious objection
which is not even discussed much less satisfactorily answered by the
exponents of the contract theory. The difficulty is this—in order
to be party to a contract, a person must have the use of reason.
government lapsed when that government ceased to exist. The terminus ad

quern of such obligations is the state and not the government. Therefore,
strictly speaking, taxes are owed—in the supposition that taxes are due in
commutative justice—to the state and not to the government. Cf. K. Wagner,
op. cit., p. 83.
118 Cf. infra, p. 124.
But many persons who do not have the use of reason and who are
therefore incapable of making a contract, possess property which
is legitimately taxed by the state. The source of the obligation to
pay taxes in this case cannot be a contract unless it is granted that
the contract is made vicariously by the legal guardian of the person
involved. This seems to be a plausible explanation of the difficulty,
especially since the obligation of paying the tax devolves upon the
legal guardian. But even granting the plausibility of the explana
tion, there is no proof that any legal guardian ever made such a
contract for his ward, or was even aware of the necessity of mak
ing it.114
(b) The matter of the proposed contract. It is claimed that the
state agrees to provide whatever is necessary for the common good,
and the citizens, in turn, agree to pay taxes in order to meet the
expenses incurred by the state. It was stated above 115 that one of
the greatest weaknesses of the contract theory is the fact that the
state is one of the contracting parties. The truth of this statement
114 The exponents of the commutative justice theory might argue that such
a contract could be both vicarious and implicit. In fact it does seem that
guardians do make contracts that are both vicarious and implicit in other mat
ters that pertain to their wards. For example, if the ward requires treatment
by a physician, the guardian calls the physician with the understanding that he
will be paid out of the money that belongs to the ward. That such a course
would amount to a vicarious, implicit contract, is indicated by the fact that in
case the guardian failed to see to it that the doctor received his fee, the child
would be obliged in commutative justice to pay the doctor later on when he
attained the use of reason and had the administration of his property in his
own hands. But even granting that the doctor's fee is due in commutative
justice because of a "vicarious, implicit" contract, the obligation of the child
to support the state could hardly be due to a contract of this type. This is
more evident in the case of foundlings. The mere fact that the state cares for
these foundlings—when it does care for them—does not give rise to an obliga
tion on the part of the child to pay the state for the food, clothing, etc., that it
received from the state, even if later on the person were able to make adequate
payment. If there is no obligation in commutative justice to pay for benefits
so personal (i. e., pertaining exclusively to this person and to no other) and so
susceptible of exact measurement in terms of money, there could hardly be an
obligation in commutative justice to "pay for" the general benefits that come
from being the citizen of this or that state.
"5 Cf. supra, p. 123.
v
is clearly seen in connection with the matter of the proposed con

tract.
In order to be valid, a contract must concern something that
can be the object of a ius; in order to be licit, a contract must con
cern something that is not already due by reason of some other
virtue.116 If the contract is made concerning something that must
be done anyway, the contract is illicit. In the present contract, the
state as one of the contracting parties, would bind itself to provide
for the common good. But the state by its very nature is obliged
to care for the common good. The state would not be the state
without this obligation. How is it possible then for the state to
enter into a licit contract binding itself to carry out this natural
and essential function? A similar objection may be brought against
the contract, on the part of the citizen who binds himself to support
the state. This obligation is a necessary consequence of citizenship.
How can a citizen enter into a licit contract binding himself to per
form a duty that is laid on him by the very fact that he is a citizen?
This theory affords an interesting but impossible picture of state
and citizen mutually binding themselves by contract to perform
duties laid on each respectively by the very fact that there is a state
and that there are citizens. The contract theory might be invoked
to explain the obligation of the state to care for the welfare of
aliens within its territory, and the obligations of aliens towards the
state within whose territory they live; but to make any kind of
contract the root of the mutual obligations of state and citizen is
about as logical as it would be to claim that the obligation of a
father to support his son, or of a son to support his father, is based
on a contract.117
116 Cf. Billuart, De Contractibus, diss. I, a. IX; Aertnys-Damen, I, 846.

117 It might be objected that the state-citizen relationship of itself involves
on the part of the state, the obligation to provide only what is necessary for the
common good, and on the part of the citizen, the obligation to provide the
funds only for what is necessary. Hence the obligation of the state to provide
things that are not strictly necessary and the obligation of the citizen to supply
the funds for such things, might be the object of a licit contract. This objec
tion on the part of the defenders of the commutative justice theory might be
valid if the right of the state to spend money for things that are not strictly
necessary for the common good depended on the consent of the citizens. A
Another objection drawn from the matter of the proposed con

tract between the state and the citizens, is the fact that the matter
on the part of the state is said to be "the common good." Authors
who hold the commutative justice theory are not too clear as to just
what is the object of the obligation on the part of the state, but this
much is certain regarding the action of the state: Tax money is
used to provide things such as protection from hostile nations, pro
tection from criminals within the state, etc.—things that cannot be
considered as the object of a ius in the strict sense of the word.
These things are by their very nature "common." They do not per
tain more to one citizen than to another. It cannot even be said
that these things belong more to a citizen who pays taxes than to
those who do not pay taxes. It is difficult, if not impossible to see
how a good of this type could be the object of a valid contract.
(c) The form of the contract. The form of the contract is the
consent of the contracting parties.118 Even the most ardent advo
cates of the theory that a contract lies at the root of the obligation
of paying taxes, must admit that neither the state nor the citizens
give explicit consent to a contract giving rise to an obligation of
paying taxes in commutative justice. For this reason, the contract
is usually referred to as an "implicit contract." It is maintained
that the state implicitly consents to the contract by the very fact
that it performs its function of caring for the common good; while
the citizen manifests his implicit consent by the very fact that he
lives under the protection of the state and enjoys its advantages.
This is a gratuitous assertion that could be accepted gratuitously
only on the supposition that the respective action of the state and
citizen does not admit of any other interpretation. De facto, the
fact that the state performs its function of caring for the common
similar objection might be brought out in the mutual relations of father and son.
It could be urged that the father has an obligation to supply the son only with
things that are strictly necessary. If the father gave the son a candybar, the
candybar could be the matter of a licit contract. But it must be remembered
that a posse ad esse non valet illatio. The truth is that fathers usually do not
sell candybars to their children and there is no proof that the state "sells
candybars" to its citizens.
118C/. supra, p. 122.
^
good can be interpreted as meaning nothing more than that the state
recognizes its natural obligation of so acting. Only a person seek
ing to establish the contract theory would seek for a further explana
tion, and only the conviction that such a contract does exist would
lead to the conclusion that the action of the state is tantamount to
implicit consent to the contract. There are no intrinsic reasons for
such a conclusion.
The fact that a citizen accepts the protection and advantages
offered by the state could more logically be interpreted as implicit
consent to a contract giving rise to the obligation of paying taxes.
But again, this is not the only possible interpretation because the
citizen might be one of those who maintain that no such contract
exists. His acceptance of the benefits provided by the state could
not be interpreted as implying consent to a contract which he ex
pressly disavows. Acceptance of the benefits in his case implies no
more than the acceptance of that particular state as his state, to
gether with the acceptance of the obligations which are an essential
consequence of citizenship in any state.
Perhaps the most serious objection to the theory that the obli
gation of paying taxes is based on a contract, is the fact that nor
mally a man enters the state by way of the family, not by way of
contract. Even Seligman, a non-Catholic, was keenly aware of this
fact, which seems to have been overlooked by some theologians.
Arguing against those who claimed that taxes were paid because of
the benefit the tax-payer received from the state, Seligman says:
"The duty of supporting and protecting it (the state) is born with
us. In civilized society the state is as necessary to the individual as
the air he breathes; . . . His every action is conditioned by the fact
of its existence. He does not choose the state, but is born into
it. ..." (italics added.) 119 This does not mean that a man must
enter the state by way of the family; it simply means that most
men do enter the state through the family. This is only another way
of saying that historically and logically the state is made up of
families and not of individuals.120 It follows that there is no more

120 Cf. Cronin, The Science of Ethics (Dublin, 1939), II, p. 462.
liberty in the initial choice of allegiance to a certain state than there

is in the choice of a certain family allegiance. As soon as a man is
born he has a juridic relation with the state into which he was born,
that no more depends on his will than do the relations which exist
between him and his parents. While it is true that an individual
may change—in other words, choose—his allegiance after he has
reached the use of reason, the fact remains that he is born with an
allegiance, whether he wants it or not. This allegiance carries with
it certain rights and is the root of certain obligations of the citizen
toward the state. Thus a person has civic rights and—at least
radically—civic obligations long before he is capable of giving con
sent to the contract which is supposed to be the cause of these rights
and obligations.
In summing up the criticism of the argument that any sort of
contract gives rise to an obligation in commutative justice of paying
taxes, it may be said that such a contract would seem to be invalid
in most cases because it would have to be made by persons lacking
the use of reason and therefore incapable of giving proper consent;
that further, the contract would be illicit because the object of the
contract would be something that is already due by reason of some
other virtue.121
Of all the arguments advanced in support of the theory that taxes
are due in commutative justice, the weakest would appear to be that
which bases the obligation on any sort of contract. What has prob
ably led authors to use this argument is the fact that something very
similar to a contract does exist between state and citizen. This
similarity is emphasized to the point of identity while the fact that
there are fundamental dissimilarities is merely touched upon by the
words "implicit" or "quasi," and basing themselves on this "prac
tical" identity, authors reach the rather abrupt conclusion that taxes
121 Some authors maintain that a contract which concerns something al

ready owed in charity could be both valid and licit. Cf. Merkelbach, Sum.
Theol. Mor., II, n. 464. But certainly neither the obligation of the state to care
for the common good nor the obligation of the citizen to support the state can
be called an obligation in charity; it is probably an obligation in piety. Cf.
infra, p. 160 ff.
'
are due in commutative justice.122 The unanimous teaching of mor

alists regarding the subject, matter, and form, of contracts is passed
over, and no attempt whatever is made to explain the obligations of
those who are absolutely incapable of making any contract. That
these criticisms are not unfounded is attested by the fact that the
latest and best authors do not appeal to the contract theory in sup-
por of the thesis that taxes are due in virtue of commutative jus
tice.128
2. The argument based on the principle that expenses legiti
mately incurred in the name of another, must be borne by that
other. Bouquillon and Damen are the principle exponents of this
argument. Damen states that argument thus: "Expenses which the
public authority makes for the common good, are legitimately made
by it in the name of the community. But as often as one legitimately
contracts a debt in the name of another, an obligation of commuta
tive justice falls on that other of indemnifying the one who con
tracted the debt. Therefore, the community itself is bound in
commutative justice to restore to the public authority all that has
been expended in its favor. But since the community is nothing
else than the union of members conspiring towards the common
good, this obligation falls on the members according to their indi
vidual ability." 124
According to K. Wagner, this is the only argument that gives any
probability to the theory that the obligation of paying taxes is
founded in commutative justice. However, after carefully consid
ering its merits, Wagner rejects the argument.125
122 The very fact that the agreement between state and citizen is called a
"quasi-contract" is clear proof that it is not a real contract, for the prefix
"quasi," while affirming similarity of two things, always implies an essential
distinction between them.
123 Cf. Wagner, Die sittlichen Grundsdtze, p. 65. Wagner will not admit
that this argument has any probability. "Es ist eben durchaus unrichtig dass
das staatliche Gemeinwesen und in demselben, wir betonen das wiederholt ganz
besonders, das rechtliche Verhaltnis zwischen Staateoberhaupt, zwischen Staats-
gewalt und Untertanen lediglich erst geschaffen oder begriindent durch einen
freien Vertrag."
i2*Theol. Mor., I, n. 831; cf. also, Bouquillon, Theol. Mor. Fun., n. 216.
>-5 Op. at., p. 82.
In order to present the argument as advantageously as possible,

the intricacies of public financing will be ignored, and the argument
presented idealistically. In other words, no account will be taken
of the fact that public works 12e are sometimes paid for in advance
by taxes or assessments collected before the work is begun, or some
times financed by public loans, or sometimes carried out on the
credit of the nation. Furthermore, the state is to be pictured free
from all debt but with no funds on hand and no other asset than
the power to raise taxes. In this idealistic situation, any under
taking for the common good requiring the expenditure of money, will
involve the state in debt. According to Bouquillon and Damen, this
debt is incurred by the state in the name of the community, there
fore the community is responsible for the debt in such a way that
each member of the community must shoulder part of the debt.
There are three ways in which the debt incumbent upon the whole
community might be apportioned among the members of the com
munity. The first way is a mere numerical division of the debt
according to the number of members in the community. Thus, if
the community contains a hundred members, each member would
have to bear a hundredth part of the debt. The second way is a
division of the debt according to the benefit each member receives
from the work that necessitated the debt. Thus, the members who
receive more benefit would be held responsible for a greater portion
of the debt than those who received less benefit. The third way is a
division of the debt according to the rejative financial status of the
various members of the community. Thus wealthy persons would
have to bear more of the debt than poor persons. Both Damen and
Bouquillon maintain that the debt which is incumbent upon the
whole community in commutative justice, is to be distributed among
the members of the community according to this third method, i. e.,
the ability of each member to pay will determine how much of the
public debt each must assume. As a matter of fact, this is the only
method which is consistent with the unanimous teaching of theolo
gians concerning the just distribution of the tax burden, for all
126 By "public work" is meant any undertaking for the common good that
requires the expenditure of money.
maintain that a tax law would be unjust if it did not take into con
sideration the ability of the subject to pay.127 But the very neces
sity of choosing this method of dividing the debt among the citizens
betrays an essential weakness in the argument under discussion,
because the premises of the argument rule out this method.
Damen argues that the expenses are made by the state, "in the
name of the community," and therefore, "the community is itself
bound to restore to the public authority." Since the community "is
nothing more than the union of members conspiring towards the
common good, the obligation falls on the members. ..." Damen
adds, "according to their ability," but there is nothing in his premises
to warrant this restriction. If the whole community is bound in
commutative justice to pay the debt to the state because the debt
was incurred in the name of the whole community, the members of
the community are bound because they are members of the com
munity; their ability to pay the debt would have nothing to do with
the extent of their obligation. Therefore the debt should be divided
according to the number of members in the community.
Bouquillon presents the argument a bit differently but his con
clusion is likewise not justified by his premise. He says: "Expenses
made for the benefit of the community by those who have the right
to act for the community, fall upon the whole community and upon
each member thereof according to the faculty of each." 128 If the
community is obliged to make good the expenses because they were
incurred for its benefit, each member of the community should be
obliged to make good that portion of the expenses which corresponds
to the amount of benefit he received from the expenditure.
The logical conclusion to the premise of the argument as given
by either Damen or Bouquillon, is an untenable conclusion, there
fore the argument must contain a fallacy.
As K. Wagner points out, the fallacy lies in the distinction which
is made between state and community.129 It is not immediately
evident that such a distinction is attempted for neither Damen nor
Bouquillon mention the state in their presentation of the argument.
127 Cf. supra, p. 24.

128 Op. cit., n. 216.
129 Op. cit., p. 82.
However, since de facto taxes are paid to the state, the terminus ad
quern of the obligation must be the state. The argument could be
formulated thus:
Major premise—When a person legitimately contracts a debt in
the name of another, that other has an obligation in strict justice to
reimburse the one who contracted the debt.
Minor premise—The state legitimately contracts debts in the
name of the community.
Conclusion—The community has an obligation in strict justice
to reimburse the state.
The minor premise of this syllogism implies that the community
stands opposed to the state as a separate moral person with rights
and obligations distinct from those of the state, for if the state is
not distinct from the community, the state could not be the subject
of a right in commutative justice with a corresponding obligation
on the part of the community. As St. Thomas says: "Justice prop
erly speaking demands a distinction of supposits." 130 But are the
state and the community distinct supposits? Emphatically not.
The community is related to the state as material cause to total
effect.181 As such it is part of the thing that is the state and there
fore cannot be distinguished from it as another thing.132
180 II-II, q. 58, a. 2.
131 K. Wagner states the case very well. "Vor allem ist es nämlich unseres
Erachtens mehr als fraglich, ob es angängig ist, die steuererhebende staatliche
Gemeinwirtschaft oder den 'öffentlichen Körper' und die steuerzählenden Einzel
wirtschaften oder 'die Gesamtheit der Besteuerten' als getrennte selbständige
Rechtssubjekte einander gegenüber zu stellen. Denn will man in Hinsicht auf
die staatliche 'Gemeinwirtschaft oder den öffentlichen Körper' als moralische
Persönlichkeit nicht zu einem völlig inhaltsleeren 'Abstraktum' seine Zuflucht
nehmen, dann wird man unbedingt einräumen müssen, dass 'der öffentliche
Körper' und die Gesamtheit der 'Besteuerten' der Sache nach vollkommen
miteinander identisch sind, woraus sollte denn 'der öffentliche Körper' sich
zusammensetzen, wenn nicht prinzipiell aus der 'Gesamtheit der Besteuerten'?"
Op. cit., p. 82. It is interesting to note that Aristotle proclaims the identity of
the state and the community in the very first sentence of his Politics: "Every
state is a community of some kind." In saying that the state is a community
"of some kind," Aristotle means that there are other communities besides the
state, for example, the family community. In other words, while every state is
a community, not every community is a state. Cf. St. Thomas' commentary
on this passage, Politicorum, I, lect. 1.
132 A group of individuals may be considered in two ways: (1) as a mere
-
3. The argument from the right of eminent domain. A few

authors who hold the theory that taxes are due in commutative jus
tice, appeal to the right of eminent domain as an argument in sup
port of their opinion. Thus Damen says that the right of eminent
domain confirms the opinion that taxes are due in commutative jus
tice.133 Prummer mentions eminent domain as a possible explana
tion of the proper nature of taxes but does not use it as proof that
tax laws bind in commutative justice.134 No author develops the
argument drawn from the right of eminent domain at any length.135
Indeed, very little has been written about eminent domain at all.
Damen devotes but a single paragraph of fine print to the topic.136
Prummer gives it the same scant notice.137 Wouters, by contrast is
almost verbose, since he devotes an entire scholion to the subject.138
Wouters defines eminent domain "as the faculty of the ruler to
dispose of the goods of the citizens whenever this is necessary or at
least very useful for the common good." 139 He goes on to say: "It
is evident from the definition that eminent domain is not dominion
properly' speaking but is rather power of jurisdiction. For dominion
properly speaking involves the faculty of disposing of the thing and
of its fruits for one's own advantage. But the ruler cannot dispose
multitude which is nothing more than an arithmatical total and hence an ens
rationis which is neither capable of group action nor susceptible of group obli
gations; (2) as an organized whole, unified by a conscious common purpose,
and therefore capable both of common action and of common obligations. It
is in this second sense alone that a group may be called a community and it is
precisely in this sense that the group is the material cause of the state. Cf.
St. Thomas, I-II, q. 17, a. 4; II-II, q. 48, a. 1; Contra Gen., IV, 35.
133 Theol. Mor., I, n. 831.
134 Man. Theol. Mor., I, n. 291.
135 This is probably due to two reasons: (1) the notion of eminent domain
is not so clear as one would suppose; (2) as an argument in proof of an obliga
tion to pay taxes in commutative justice, it labors under an unanswerable
difficulty.
136 Op. cit., I, n. 649.
187 Op. cit., II, n. 3.
138 Man. Theol. Mor., I, n. 764.
139 Loc. cit.
of the goods of the citizens for his own advantage but only to pro
cure the good of the community."
The crux of the whole question of the right of eminent domain
is whether the state has a strict obligation to make equivalent com
pensation for the goods that it does expropriate under this power, for
if the state must make equivalent compensation, the power of emi
nent domain has nothing to do with taxation. In taxation the state
need not compensate the tax-payer so that he receives the equivalent
of what he gave in taxes.
Wouters does not make his position clear on the point. He says:
"The state can, when necessity or great utility demands it, deprive
a person of something by way of expropriation, as it is called, in
which case however, the owner of the thing is indemnified (quo casu
tamen indemnis reddatur)." 140 Thus he says nothing about the
extent of the compensation nor does he say that the compensation is
of obligation. Damen has a more positive statement: "... The
public authority cannot exercise the right of alienating the goods of
the citizens unless it makes due compensation." 141 But it is to be
noted that Damen does not say "equivalent compensation"; the
compensation "due" might not be sufficient to cover the loss sus
tained by the person whose goods were expropriated. Priimmer is
most exact. He says: "... it is not allowed to use the power of
eminent domain unless . . . equivalent compensation is given." 142
Most political economists are of the opinion that the obligation of
making equivalent compensation is inherent in the right of eminent
domain.143
However, no matter what the issue may be regarding the origin
of the obligation of making compensation, i. e., whether this obliga
tion is essential to the right of eminent domain or merely a limita
tion self-imposed by the government, the fact remains that "in all
140 Op. tit., n. 764.

141 Op. tit., n. 649.
142 Op. tit., II, n. 3.
"s Cf. E. Freund, "Eminent Domain," Ency. Soc. Sci., V, p. 493 : "To say
that the right to take is inherent in sovereignty and the duty of compensation
a positive limitation imposed by constitutions is to ignore the history of the
doctrine which always linked up the duty with the right."
free governments, private property cannot be taken under this power

without just compensation." 144 This fact is sufficient to disprove
the claim that taxes are due in commutative justice based on the right
of eminent domain. De facto the right of eminent domain is lawfully
exercised only on a strict quid pro quo basis. A citizen who is
deprived of anything by this power, must be given payment for that
thing according to a strict equality of price paid for thing taken.
This equality is not present in taxation. Indeed, as Seligman points
out, if the state did make equivalent compensation for every dollar
it received in taxes, taxes could no longer be considered a form of
revenue, since revenue by definition is something that increases the
assets of the state.145 The state would be no richer after it received
a hundred dollars in tax money than before, if it had to give the tax
payer the equivalent of one hundred dollars.
It might be argued that the state does make adequate compensa
tion in as much as it uses the money received in taxes in order to
provide "public security and other goods." 146 But public security
and other common goods provided by the state cannot be considered
compensation in the strict sense simply because these goods are com
mon and cannot be transferred to the dominion of a private citizen.147
The failure of taxation to meet the requirements of the legitimate
use of the power of eminent domain is so clear that practically no
economist has ever attempted to identify the power of taxation with
the power of eminent domain.148
144 Seligman, Essays in Taxation, p. 401 ; cf. Corpus Juris (ed. by W. Mack
and W. Hale, New York, 1920), XX, p. 643. "The exercise of the power of
eminent domain is subject to the constitutional right of the owner of the land
taken to just compensation. This right is now expressly guaranteed by the con
stitutions of practically all of the states, and even in the absence of such provi
sion in the organic law, the right to compensation has been recognized by the
courts as a fundamental right founded on natural justice, although there are
statements in some decisions which would indicate an opinion fo the contrary."
145 Seligman, loc. cit.
146 Cf. Priimmer, op. cit., I, n. 291.
147 Cf. supra, p. 115.
148 Cf. Ency. Soc. Sci., art. cit., p. 495; Seligman, op. cit., p. 401; Corpus
Juris, XX, p. 517; ibid., p. 527: "There is a clear distinction between the
power of taxation and the right of eminent domain. An appropriation under
'
'
Proof: B. Analysis of the Extrinsic Arguments

1. The argument from Scripture. There is hardly any need to
comment on the argument in favor of the commutative justice theory
which is drawn from Scripture. The two passages (Matt. 22, 22;
Rom. 13, 7) which at one time were commonly used as proof of this
theory are not so used by recent authors. This fact in itself is an
indication that neither the words of Christ nor those of St. Paul
prove that the obligation of paying taxes is founded on commutative
justice. These two texts will be considered in article four of this
chapter.149
2. The authority of theologians. Until about the beginning of
the nineteenth century there were only two basic theories regarding
the nature of the obligation to pay taxes. They were the penal law
theory and the commutative justice theory. Although the penal
law theory was considered probable by a goodly number of authors
in the period from the fifteenth to the nineteenth centuries, the
theory could claim the whole-hearted support of but a scant half-
dozen writers whose works have long since gone out. of print. The
vast majority of theologians in the four centuries from the birth of
St. Antonine to the death of St. Alphonsus, adhered to the commu
tative justice theory. So overwhelming was the preference for the
theory that tax laws obliged in commutative justice, that St. Al
phonsus called it the "sententia communissima et probabilior." 1B0
The opinion began to lose favor in the second half of the nine
teenth century, due to the criticism it received from Pruner, Bal-
lerini and later from Wagner. This criticism was so well founded
that of the twenty-four authors treated from 1850 to the present
the power of eminent domain is in the nature of a forced sale to the state or
municipality . . . requiring compensation by the payment of a just price in
money."
14U Cf. infra, p. 152 ff.
150 Theol. Mor., II, 616. The Catechism of the Council of Trent has no
doubt about the obligation. It says: "Amongst those guilty of rapine (sic) are
included persons who do not pay, or who turn to other uses, or appropriate to
themselves customs, tithes, and other revenues, which are due to those who
preside over the Church, and to the civil magistrates." Part III, chap. VIII,
Q. X.
,
day, only seven hold the opinion that taxes are due in commutative
justice. Of these seven, two (Priimmer and Merkelbach) leave the
impression that their assent is "notional" rather than "real." The
opinion could hardly be called common among the theologians of
the past hundred years. Nevertheless, an opinion which was taught
by such great theologians as St. Antonine, Molina, Suarez, Lugo,
Billuart and St. Alphonsus, is not likely to be entirely lacking in
foundation. But it is to be remembered that the authority of the
ologians can never give greater probability to an opinion than is
warranted by the intrinsic arguments for the opinion. In consid
eration therefore, of the weakness of the intrinsic arguments which
have been advanced in support of the theory that taxes are due in
commutative justice, the writer does not judge this opinion suffi
ciently probable to allow a confessor to impose an obligation in
commutative justice on a penitent, or to judge the gravity of tax
delinquencies according to the norms of commutative justice.151
151 There are two explanations of the phenomenon of so many noteworthy

theologians adhering to an opinion that does not seem to be well grounded in
intrinsic arguments. The first is the fact that authors who lived before 1800
had to choose either the penal law theory or the commutative justice theory
because the legal justice theory had not been developed. The better theolo
gians naturally chose the commutative justice theory. The second explanation
is the proximity of these theologians to a political and economic life that was
feudal in character. Under the feudal system, the obligations of both prince
and subject were clearly defined and what is more important, were usually
the object of an explicit contract. Occasions when the overlord could tax his
subjects and the amount of taxes he could impose were specified either by
written law or by custom. No new direct taxes could be imposed on the sub
jects without their express consent. In such an atmosphere there was not
much room for discussion either about the justice of a tax or about the obliga
tion of paying a just tax. Without extensive investigation, it would be a mere
assumption to estimate the degree of influence these ideas had in shaping later
opinion regarding the obligation of paying taxes. However, it can be said with
out fear of contradiction that these ideas had some influence. Cf. Marc Bloch,
"Feudalism," Ency. Soc. Sci., V, p. 210. This author maintains that, "The
clearest legacy of feudalism to modern societies is the emphasis placed upon
the notion of the political contract. The reciprocity of obligations which
united lord and vassal and caused with every grave dereliction by the superior
the release of the inferior in the eyes of the law was transferred in the thirteenth
century to the state."
'
III. The Opinion That Laws Imposing Indirect Taxes Are

Purely Penal While Laws Imposing Direct Taxes
Bind in Virtue of Legal Justice
What has been said regarding the penal law theory in general
and the theory that tax laws in particular are purely penal, would
seem sufficient refutation of the assertion that certain tax laws are
purely penal. The reasons given in the first article of this chapter
for rejecting the opinion that there can be purely penal laws were
not particular reasons applicable only to some laws, but were rea
sons drawn from the very purpose of law and therefore are applic
able to all laws.152 Furthermore, even if the probability of the gen
eral penal law theory were granted, i. e., even if it were probably
possible to have such a thing as a purely penal law, the opinion that
laws imposing indirect taxes are purely penal would labor under
the difficulty discussed in article one, namely, the lack of positive
proof that the legislator intends to bind only to the penalty in these
laws.
The arguments that are advanced in support of the theory that
indirect tax laws are purely penal are statements that do not pro
vide any more intrinsic validity for this theory than the arguments
in support of the theory that all tax laws are purely penal. Funda
mentally, they are the same arguments. For example, Lehmkuhl
says: "According to the opinion of many [no authors are mentioned]
indirect taxes or customs (vectigalia) are imposed by way of a penal
law; the authors arrive at this conclusion both because of the ex
orbitant penalties by which those who are apprehended defrauding
these taxes are punished, and because this is the common inter
pretation and acceptation of men." 16S Ballerini offers this argu
ment: "The practice is sufficiently common that men act in this
matter as though the law were merely penal. In general, no one
thinks that he is obliged to pay indirect taxes unless to the extent
that he cannot escape the vigilance of those whose duty it is to
collect taxes." "*

"« Theol. Mor., I, n. 983.
1" Opus Theol. Mor., I, n. 154.
i
In refutation of Lehmkuhl's statement concerning "exorbitant

penalties," it is only necessary to call to mind the truth developed
earlier in this work, namely—the common-sense interpretation of
an "exorbitant penalty" is that the legislator wants his law observed
and rather suspects that the subjects will not be inclined to observe
it.155 And regarding the statements of both Lehmkuhl and Ballerini,
it seems justifiable to remark that even if the obligation of a law
did depend upon the judgment and mode of acting of the subjects,
their assumption that men do consider indirect tax laws purely penal
and act accordingly, is too sweeping to deserve uncritical assent.
A further objection to the theory that there is a distinction be
tween the obligation of paying direct and indirect taxes, is the prac
tical difficulty of determining just which taxes are direct and which
are indirect. This theory leaves the obligation of paying taxes to
the mercy of the more or less arbitrary and contradictory decisions
of courts and law codes—to say nothing of the vagaries of private
opinion among theologians and political economists. For example,
in 1881, the Supreme Court of the United States ruled that the in
come tax was an indirect tax.156 Therefore, according to this theory,
income tax laws imposed a purely penal obligation. In 1895, the
court reversed its decision and henceforth income taxes in the United
States were direct taxes.157 Did this later decision change the
nature of the obligation imposed by income tax laws in the United
States? According to Ballerini's theory it did, for citizens would
now be obliged to pay income taxes in virtue of legal justice. And
while American citizens sin if they fail to pay their income taxes,
French citizens may evade certain types of income taxes without sin
as long as they are willing to undergo the prescribed penalty if the
evasion be discovered, because in France, certain types of income
taxes are legally classified as indirect taxes.158
The inheritance tax affords a case of confusion arising from dif
ference of private opinion. Those who consider inheritance merely
a type of income, regard this as a personal or direct tax; those who
155 Cf. supra, p. 105.

156 Cf. Springer v. United States, 102 U.S. 586.
167 Cf. Pollock v. Farmers Loan & Trust Co., 157 U.S. 429; 158 U.S. 601.
158 Cf. Ency. Soc. Sci., VII, p. 534.
maintain that this tax is merely a fee for the legal privilege inheri
tance entails, regard the tax as an impersonal or indirect tax.159
The obligation of paying this particular tax would therefore depend
upon one's point of view.160
A theory entailing such implications certainly seems to invali
date the possibility of objective obligations, at least in the matter
of taxes.
IV. The Opinion That All Taxes Bind in Virtue

of Legal Justice
1. The meaning of legal justice. Legal justice may be denned
in a negative way that will be acceptable to all, no matter what they
may hold positively as to the nature of legal justice, as that justice
which is not particular, i. e., which is neither distributive nor commu
tative justice. Inadequate as this definition may appear to be, still
it establishes the only common denominator that is found in the
innumerable definitions of legal justice which have been given since
the day Aristotle penned the tantalizing words: "The justice then
which answers to the whole of virtue, and the corresponding in
justice, one being the exercise of virtue as a whole, and the other that
of vice as a whole, towards one's neighbor, we may leave on one
side." 161
Aristotle began his treatise on justice by pointing out that there
is a justice which is "complete virtue, not absolutely but in relation
to our neighbor." 162 This justice is found in the observance of the
law, because "all lawful acts are in a sense just acts." 163 Hence a
159 Ibid.
160 In the United States, citizens have no choice about the inheritance tax
because it is legally an indirect tax. Cf. Scholey v. Rew, 23 Wall 331; Knowl-
ton v. Moore, 178 U.S. 41..
161 Nicomachean Ethics, V, 2 (tr. by W. D. Ross, in The Basic Works of
Aristotle, New York, 1941), p. 1005 (Berlin Academy reference, 1130b). Here
after this work will be cited only according to the Berlin Academy references,
since Ross' translation has this numbering in the margin.
182 1130b.
163 1129b. Aristotle himself did not call this "legal justice," though in an
other place he speaks of "that which is legally just," by which he meant, "that
which originally was indifferent, but when it has been laid down (by law) is
man who habitually- obeys the law is called a "just man." It seems
that the only reason Aristotle introduced the topic of "justice which
is entire virtue," was to explain the meaning of the common expres
sion "just man," and to point out that he was not going to treat that
general justice whereby men are "just." This approach was un
fortunate for posterity, for having indicated sufficiently what made
a man just, Aristotle dropped the matter and went on to analyze
distributive and commutative justice. As a result there has been
little room for basic disagreement about the nature of either dis
tributive or commutative justice; there has been little else but basic
disagreement about the nature of legal justice.
It will not serve the purpose of this dissertation to determine
the exact meaning of Aristotle's "justice which is entire virtue." In
any event, it is "doubtful whether from the text of Aristotle as it
stands an objective interpretation can arrive at a notion of a legal
justice which is not only identical with the whole of virtue, but is
also a determined virtue having its specific nature." 184
St. Thomas took the meager offering of Aristotle and from it
developed a doctrine of legal justice that was coherent and clearly
defined, but not complete. Again, it is not necessary to trace the
development minutely; it will be sufficient to state the results of the
development. These results are admirably summarized by W.
Ferree. They are: "(1) The introduction of a specific virtue of legal
justice; (2) having a specific object: the common good, instead of
the generic ad alium; (3) and hence differing from particular jus
tice not merely as whole to part, but as directed towards common
and particular good; (4) and directing the acts of all virtues to its
own end, rather than simply containing them as the whole its
parts." 165
The difference between Aristotle's conception of legal justice and
not indifferent." Cf. 1134b. In other words, as St. Thomas points out, this
"justum legale" is synonymous with "jus positivum." Cf. In X Libros Ethi-
corum ad Nicomachum, V, lect. XII (Opera Omnia, Parmae, 1876), XXI, p. 178.
164 This is the opinion of W. Ferree, The Act of Social Justice (Catholic
University Press, Washington, 1942), p. 12. This is one of the best works on
legal justice in modern literature.
165 Op. tit., p. 31.
the conception of St. Thomas is clearly seen in the fact that it is

very doubtful whether a place could be found in Aristotle's system
for a special sin of legal injustice; there is no doubt that St. Thomas
contemplated a special virtue opposed by a special vice and there
fore having the possibility of this special sin of legal injustice.186
St. Thomas accomplished this development by specifying the
ad aliam of Aristotle's legal justice. It sufficed for Aristotle's pur
pose (namely, to show why a good man is called a just man) to dis
tinguish the relatio ad aliam found in every act of obedience to the
law from the relatio ad aliam in an act of distributive or commu
tative justice. St. Thomas pointed out very emphatically that this
relatio ad aliam of legal justice is nothing else than the relatio ad
bonum commune.167 By making the common good the proper object
166 That St. Thomas contemplated a special sin of legal injustice is very
clearly stated by him in, II-II, q. 79, a. 3, where he discusses the question:
"Utrum omissio sit speciale peccatum?" He answers: "Dicendum quod omissio
importat praetermissionem boni, non autem cuiuscumque, sed boni debiti [all
italics in this quotation are added]. Bonum autem sub ratione debiti pertinet
proprie ad iustitiam; ad legalem quidem, si debitum accipiatur in ordine ad
legem divinam vel humanam; ad specialem autem iustitiam, secundum quod
debitum consideratur in ordine ad proximum. Unde eo modo quo iustitia est
specialis virtus, ut supra habitum est, et omissio est speciale peccatum distinctum
a peccatis quae opponuntur aliis virtutibus." This, taken together with the
passage to which St. Thomas refers in saying, "ut supra habitum est," can
hardly be interpreted in any other sense than the one given in the text. Cf.
II-II, q. 58, a. 6: "... iustitia legalis est specialis virtus secundum suam essen-
tiam; secundum quod respicit commune bonum ut proprium obiectum." Con
cerning the concept of legal justice in Aristotle, Lessius very aptly remarks:
"Aristotles per justitiam legalem videtur intelligere obedientiam, non ut est
virtus specialis, quae affectu praecepti facit opus, sed ut virtus generalis."
De Justitia et Jure, Sect. I, cap. I, dub. III, n. 16.
167 Cf. In Ethicorum, V, 2 and 3 ; II-II, q. 58, a. 6. As was pointed out
above (cf. preceding note) the bonum commune is a bonum debitum. By
this is meant that there is a relatio ad bonum commune in every human being,
arising from the social nature of man. Which is only another way of saying
that man cannot be a "good man" unless he be well ordinated towards the
bonum commune. As soon as a relatio ad bonum debitum exists, there is a
terminus ad quern of an obligation, and hence the need of a special virtue to
direct man in ordine ad bonum. Lugo stresses this "relational" aspect of virtue
in discussing the proper object of commutative justice. Cf. De Iustitia et lure,
disp. I, sect. I, n. 5 and 14.
^
of legal justice, St. Thomas made legal justice a specifically distinct

virtue, for virtues are specified by their object, and the common good
is an object specifically distinct from the object of every other
virtue. Moreover, the common good is a "bonum debitum."168
This is as far as St. Thomas carried the notion of legal justice.
It is a special virtue by reason of its specifically distinct object
(i. e., the common good) ; it is a general virtue in as much as it di
rects the acts of other virtues toward the common good.
In his preoccupation with the final cause of legal justice, St.
Thomas rather neglects the material cause of the virtue. This neg
lect is certainly not an oversight on the part of a teacher usually
so thorough; it is rather to be construed as a deliberate silence on
a point that was not yet clear to St. Thomas. If St. Thomas had
any clear-cut ideas on the materia of legal justice it is reasonable to
expect some ex professo treatment of the subject—especially since
the fullest understanding of legal justice is impossible without a
scientifically exact notion of its materia.1™ But there are only pass
ing references to the matter of legal justice in St. Thomas, and ac
cording to the common opinion these references indicate that the
Angelic Doctor was of the opinion that only acts of other virtues
could be the matter of legal justice.
If it is true that only acts of other virtues can be the matter of
legal justice, it follows that there is no immediate and proper act
of legal justice, for every act of legal justice would be an act of some
other virtue directed or ordered to the common good by legal justice.
In this case there would be no possibility of an elicited act of legal
168 Cf. note 167.

169 As Ferree points out: "When he (St. Thomas) wanted to leave a ques
tion open for further analysis and research, he rather consistently indicated
this by proposing his own as yet, incomplete doctrine in a sort of figurative
way, making liberal use of the particles quasi and tamquam, and of the in
definite adjectives, and employing synonymous expressions to illustrate different
aspects of the question he was not yet prepared to settle. . . . This studious
choice of figurative language is perhaps nowhere employed more consistently
by St. Thomas than in those places where he must touch on the act of legal
justice." Op. cit., p. 3.
justice. Most authors do interpret St. Thomas in this way.170 How

ever, an impartial analysis of the texts alleged to support the opinion
that the teaching of St. Thomas excludes the possibility of an imme
diate and proper act of legal justice, reveals that in all probability,
St. Thomas left the question open. Statements such as: " . . . the
acts of all virtues can pertain to justice according as it orders men
to the common good," 171 or: "There is no virtue concerning whose
acts the law cannot prescribe," 172 and others of similar import, do
not justify the conclusion usually drawn from them, namely, that
St. Thomas considered legal justice a "determinata virtus habens
speciem"173 which has not, and cannot have certain acts, proper and
immediate which it elicits.174 On the other hand, it would be an un
warranted assumption to claim that St. Thomas certainly considered
legal justice a special virtue, not only "by reason of its essence, in so
far as it regards the common good as its proper object," 175 but also
by reason of an immediate and proper act.
The next chapter in the history of legal justice is, to say the
least, disappointing. For six centuries following the great advance
made by St. Thomas, legal justice was given little attention, even
by authors treating justice ex professo.176 It was not entirely neg
lected, but what little investigation there was, was either vitiated
by the fact that few seemed to realize that the legal justice of St.
170 Cf. Ibid., p. 36. Ferree says: "It seems to be a common opinion that
St. Thomas excludes the possibility of an immediate and proper act of legal
justice, so that only acts of other virtues can be matter of this virtue."
i" II-II, q. 58, a. 5.
"2 I-II, q. 96, a. 3.
"3 In Etkicorum, V, 2.
174 Cf. Ferree, op. cit., p. 5. The arguments for this conclusion are devel
oped by H. Hering, "De Genuina Notione Iustitiae Gcneralis seu Legalis Iuxta
S. Thomam," Angelicum, 14 (1937), pp. 464-488. They are refuted very well
by Ferree, op. cit., chap. 2.
170 II-II, q. 58, a. 6.
i78 Ferree cites the example of Waffelaert, who accords legal justice one
paragraph and one footnote, "in a work on the moral virtues intended to be of
monumental proportions." Cf. Waffelaert, De Justitia, I, p. 19; Ferree, op. cit.,
p. 80. As Ferree points out in another place, most authors treat legal justice
after the manner of Aristotle—it is mentioned only to get it out of the way.
Op. cit., p. 10.
Thomas was not the legal justice of Aristotle,177 or resulted in mere

repetition because of a preoccupation with the formal aspect of the
virtue to the exclusion of the material aspect.178 It was not until
the social disorders of the nineteenth century gave rise to a new
term, "social justice," that serious attention was again focused on
legal justice, for the question immediately arose: what is social
justice? And there were many indications even from the beginning
that social justice was nothing else than the long-forgotten legal
justice.
It is not necessary for the purpose of this dissertation to venture
into the cloud-burst of literature occasioned by the appearance of
"social justice." In one sense the storm is over—though some do
not seem to realize the fact—and it is now generally admitted that
social justice is but another name for legal justice.179 The identity
of the two virtues was pointed out implicitly, but clearly enough, by
Pius XI when he said: "Now it belongs to social justice to demand
from each individual all that is necessary for the common good." 180
This statement of the end of social justice, taken together with the
177 Cf. Lessius, De Justitia et Jure, Sect. I, cap. I, dub. III: "Sed tota
difficultas est, quid sit haec justitia; quod ejus officium, et quo modo ab aliis
distinguatur; nam D. Thom. et Soto existimant quamdam esse virtutem par-
ticularem a caeteris omnibus, quae procuret bonum commune. Verum Vega, et
multi alii (italics added) putant esse complexionem omnium virtutum." Such
a dispute would not have been possible had Vega and the multi alii read both
Aristotle and St. Thomas carefully.
178 St. Thomas had already given the formal aspect (i. e., the "respectus ad
bonum commune") adequate treatment and once it is assumed that the mate
rial object of the virtue is only acts of other virtues, theologians could be "con
tent to let their whole treatise on the moral virtues stand implicitly as the de
velopment of their doctrine on the material object of the virtue of legal justice."
Ferree, op. cit., p. 1.
179 Cf. L. W. Shields, The History and Meaning of the Term Social Justice
(Notre Dame, Ind., 1941), p. 45; E. Lustoso, "Justitia Socialis, Problemas
terminologicos alrededor de un concepto nuevo," Estudios (Buenos Aires),
55 (1936), pp. 124-138; Brucculeri, "La Giustizia Sociale," La Civiltd Cattolica,
87th year (1936), Vol. II, p. 187; Ferree, op. cit., p. 79 ff.
180 Divini Redemptoris, para. 51. Unless otherwise stated all references to
the encyclicals of Pius XI are taken from Social Wellsprings (ed. by J. Husslein,
Milwaukee, 1942), II.
146 The Moral Obligation of Paying Just fax6i
equally clear statement of St. Thomas regarding the end of legal

justice ("Legal justice is a special virtue in respect of its essence,
in so far as it regards the common good." II-II, q. 58, a. 6) can
lead to but one conclusion: the two virtues are identical. That there
was—or still is in the minds of some—any doubt about the truth
of the conclusion, is evidence of the neglect into which the doctrine
of St. Thomas had fallen.
Since social justice is legal justice, the recent investigation of
social justice has some bearing on the opinion that tax laws bind in
legal justice. But in this respect, the main results of the investiga
tion have not been the new things that have been said about social
justice but rather the clarity and certainty that have been given to
the older doctrine of St. Thomas regarding legal justice. Thus, if
the recent attempt' of W. Ferree to discover "an immediate and
proper act" of the virtue of social justice is successful, it would not
add materially to the probability of the proposition that taxes are
due in legal justice, for that proposition—to anticipate a bit—is
based on doctrine already found in St. Thomas. It would indeed
give a deeper insight into the meaning of the proposition, but the
chief importance of Ferree's work with respect to the proposition is
the remarkably clear analysis of the doctrine of St. Thomas which
it contains.181
Whether or not the results of this attempt to isolate the imme
diate and proper act of social justice will be accepted by philosophers
and theologians remains to be seen.182 Ferree certainly makes out
a good case for his proposition, which is: "The act of social organ
ization" is the immediate and proper act of social justice.183 After
showing that St. Thomas leaves an opening in his theory of legal
justice for a proper act of social justice, if one can be found,184
Ferree goes on to analyze the Encyclicals, Quadragesimo Anno and
Divini Redemptoris in what appears to be a very successful effort
181 This analysis is contained in the first chapter of Ferree's work, pp. 19-31.
182 Ferree's book was not available until January, 1944. It has not yet
been given the attention it deserves.
183 Op. cit., pp. 91-134.
wibid., pp. 19-31.
^
to prove that according to these great encyclicals, social organization

is the immediate and proper act of social justice.185
The immediate effect of this new doctrine on the proposition that
taxes are due in legal justice is indicated by Ferree himself when
he says: "... when acts of other virtues become commanded acts
of social justice, they take on a new material aspect of organiza
tion." 186 If taxes are due in legal justice, the commanded act—
to anticipate again—is probably an act of the virtue of piety.187
This act of piety would in some way assume the material aspect of
an elicited act of social justice. In other words, this doctrine would
emphasize the function of taxes as a conditio sine qua non of the
social organization through which the common good is achieved.
Before concluding this section, it is well to note that the teaching
of Ferree concerning legal or social justice is not revolutionary in
the sense that it overthrows the Thomistic doctrine of legal justice.
In relation to true Thomistic teaching as found in the Summa and
In Ethicorum, it is evolutionary; in relation to what is sometimes
called "Thomistic tradition," it is indeed revolutionary. The rela
tion of Ferree's theory to the theory of St. Thomas may be seen in
the definition of legal justice implicitly contained in the former's
theory: Legal justice is that virtue which inclines a person to effect
the common good mediately through the acts of other virtues, and
immediately through the act of social organization. The italicized
portion of the definition is an addition necessitated by positing an
immediate and proper act of legal justice. If one does not admit
that legal justice has an immediate and proper act, or if one does not
admit that the act of legal justice is this act of social organization,
the italicized clause may be omitted, leaving the definition that is
called for by the theory of St. Thomas. Those who hold that St.
Thomas excluded the possibility of an immediate and proper act of
legal justice would quarrel with the definition. They would insist
that legal justice, according to St. Thomas, is that virtue which
inclines a person to effect the common good only mediately through
185 Ibid., pp. 91-134.

™Ibid., p. 193.
«7 Cf. infra, p. 160. ^
the acts of other virtues.188 But if Ferree has succeeded in estab

lishing anything, it is that the inclusion of the word "only" in the
definition of legal justice is not warranted by anything in St.
Thomas.189
2. History of the theory. As far as it is known, Suarez is the
first author even to mention that the obligation of paying taxes might
be some other virtue besides commutative justice. He himself held
the opinion that taxes were due in commutative justice, but to sub
stantiate his claim, Suarez brought up an objection. He says: "But
perhaps some one will say that it [the tax money] is not due in
justice, but only in obedience [italics added] to the law."190 Since
Suarez has already established to his own satisfaction that the tax
is a debt in commutative justice, he disposes of the objection by a
simple denial: "But this is plainly false and against all the authors,
who teach that where there is an obligation of paying taxes [i. e.,
in the supposition that the tax law is not merely penal] it is an
obligation in justice."
It is not necessary to discuss the value of this answer as a re
buttal of the proposed objection, but it is worth noting that, barring
an explicit statement, the answer is an amply clear indication that
in the sixteenth century there were only two theories regarding the
obligation of paying taxes, namely, the penal law theory and the
commutative justice theory.
Suarez did not mention "legal justice," and it may not be pre
sumed that he meant legal justice when he spoke of obedience, but
the very idea that the obligation of paying taxes might be founded
in any virtue but commutative justice was something novel.
For a century and a half the idea remained buried in the fifth
book of De Legibus, then Billuart, not only resurrected it but added
something of his own. For Billuart was the first theologian to men
tion "legal justice" in connection with the obligation of paying taxes.
And he mentions it in such a way as to give the impression that some
authors held that taxes were due in legal justice alone. However,
188 Cf. H. Hering, "De Genuina Notione Iustitiae Generalis," Angelicum,

14 (1937), pp. 464-488.
189 Op. cit., pp. 19-31.
190 De Legibus, V, c. XVIII, 4.
he does not cite any authors to that effect and his own opinion was
that taxes were due in both legal justice and commutative justice,
hence the impression must remain an impression. Billuart says:
"The people must pay taxes not only from legal justice [italics
added] whereby the parts [i. e., the citizens] are obliged to work
together for the good of the whole, but also from commutative jus
tice." 191
It is likely that had Billuart been farther removed from the me
dieval tradition that looked upon the ruler as a "hired man" and
upon taxes as a "wage," he might have omitted the last five words
of the passage quoted. But Billuart was too thoroughly imbued
with the idea that the ruler owed his authority to an implicit pact
which gave rise to obligations in commutative justice in both ruler
and subjects to perceive that, by his own admission, the subjects
had obligations over and above obligations arising from any pact
"to work together for the good of the whole." Thus the term
"legal justice" is mentioned, the essence of the proof that taxes are
due in legal justice is explicitly given—though it may be inferred
from its obiter dicta character that Billuart did not realize its im
port—and the whole thing is forgoten for another hundred years.
John E. Pruner (1825-1907) was probably the first author to
maintain that taxes are due in legal justice to the exclusion of com
mutative justice. The opinion appears in his Lehre vom Recht,
published in 1857 at Ratisbon. Unfortunately, the writer was un
able to locate this work. For that reason it would be assuming too
much to claim with certainty that Pruner was the first author to
hold this opinion.19- The evidence at hand is a citation in the fourth
German edition of Gury's Theologia Moralis, published at Ratisbon
in 1868,103 and the fact that no author cites any work published
before 1857 for the opinion that taxes are due in virtue of legal
justice alone. The only shred of evidence against the priority of
Pruner in this matter is the fact that Ballerini, who certainly held
191 De lure et luslitia, diss. IX, art. VII, para. 2.

192 Pruner may have cited some earlier references for his opinion.
193 Cf. Pars I, n. 737, note 2. Pruner certainly held the opinion for it is
contained in his later work, Katholische Moraltheologie (3rd ed., Friburg in
Brisg., 1903), p. 366.
■
the same opinion, was born twenty years before Pruner. However,
the first evidence of Ballerini's opinion is found in his edition of
Gury's Theologia Moralis, published in 1868 at Rome.194
It is to be noted that neither Pruner nor Ballerini maintained
that all taxes were due in legal justice,195 but they did maintain that
when a tax law imposes an obligation of paying taxes, that obliga
tion is one of legal justice and not commutative justice.
After 1875 the opinion that legal justice and not commutative
justice lay at the root of the obligation of paying taxes, gained
ground rapidly. It was held in one form or another by Marc,196
Lehmkuhl,197 Bucceroni,198 Sabbetti,199 Tanquerey,200 Wouters,201
Noldin,202 Wagner,203 and others. Wagner wrote a work dealing
ex professo of the obligation imposed by just tax laws. In this work
he comes to the conclusion that all just tax laws impose an obligation
in legal justice.204
194 Cf. n. 737, note 2. It is very probable that Ballerini included this opin
ion in the first edition of Gury which he published in 1866. This, too, is an
elusive work, but even if the opinion is contained in the 1866 edition, Pruner
still has a nine year lead.
106 Cf. supra, pp. 72, 74.
108 Cf. supra, p. 75.
197 Cf. supra, p. 76.
108 Cf. supra, p. 81.
108 Cf. supra, p. 77.
200 Cf. supra, p. 79.
201 Cf. supra, p. 78.
202 Cf. supra, p. 76.
203 Cf. supra, p. 80.
204 It might be asked why authors who hold that only indirect taxes are
due in legal justice, are treated in this historical summary of the opinion that
all taxes are due in legal justice. The inclusion of these authors—especially of
Pruner and Ballerini—is justified because any opinion which holds that even
some taxes are due in legal justice involves a denial of an axiom that held sway
from the time that theologians first began to discuss the nature of the obliga
tion of paying taxes until about the middle of the nineteenth century, namely,
"where there is an obligation of paying taxes, it is an obligation in (commu
tative) justice," cf. supra, p. 148. The first authors to deny this principle
held that indirect taxes were imposed by merely penal laws, but the denial of
this principle marked the beginning of the theory that all taxes are due in legal
justice alone.
,
3. Criticism of the theory that all tax laws bind in virtue of legal
justice.
Thesis: The Civic Duty of Paying Taxes Is Certainly an

Obligation in Legal Justice, Most Probably to the Ex
clusion of Commutative Justice, the Immediate Obli
gation Flowing Probably From Piety.
Praenotanda. The thesis contains two affirmations and one nega

tion expressly, besides implying a further affirmation. It may be
broken up into the following four propositions: (1) Tax laws bind in
conscience to the act prescribed. This proposition is contained im
plicitly in the words, "The civic duty of paying taxes," and is di
rectly opposed to the theory that tax laws are purely penal laws.205
(2)J>he obligation of paying taxes is mediately an obligation of legal
justice. This proposition is qualified as "certain" because it must be
held by all except those who maintain that tax laws are purely penal,
and the purely penal law theory does not appear to have sufficient
probability to impugn this certainty. (3) The immediate obligation
most probably does not flow from commutative justice. This propo
sition, and the qualification, "most probably," follows from what has
been said of the commutative justice theory in article two.206
(4) The immediate obligation is probably one of piety. "Piety" here
is the "pietas erga patriam" of St. Thomas.207 The English word,
"piety," does not convey the exact notion of St. Thomas but it is
preferable to the only English alternative, "patriotism," for "patri
otism" has come to mean "fulfillment of civic duties through love of
country."
Since this thesis is intended to be a summary of the results of
the investigation undertaken in this dissertation, all four proposi
tions will be considered here, even though the first and the third have
been treated elsewhere in this chapter.208
(1) Tax laws bind in conscience to the act prescribed.

207 II-II, q. 101, a. 3.
208 Cf. supra, p. 104 and 119 respectively.
"-
This proposition is simply the affirmative form of the thesis that

no tax law is purely penal. The proposition is universal, i. e., it in
cludes every just tax law, and is certain. But it is to be noted that
its certainly and universality do not depend directly upon the cer
tainty of the proposition that no law can be purely penal; these
qualities depend rather upon the absolute lack of proof that any tax
law is purely penal. In other words, even if the probability of the
purely penal law theory in general were granted, the proposition that
tax laws are purely penal would not thereby be established. It is to
be noted further that the proposition is not based on the mere as
sumption that tax laws do bind in conscience to the act prescribed
until the contrary is proved. It rests on the solid intrinsic proof
drawn from the very nature and purpose of a just law and on the
extrinsic proof contained in the two passages of Scripture so often
mentioned in this dissertation. The intrinsic proof of the proposi
tion has been given in the refutation of the theory that tax laws are
purely penal laws; 209 consideration of the argument from Scripture
has been reserved until now because, as will be evident, the texts
prove directly the proposition now being considered, and no other.
The passages offer no argument for any particular theory, either that
of commutative justice or that of legal justice. Of course, in proving
that taxes oblige in conscience, they disprove the contention of the
purely penal law school.
The obligation of paying taxes is mentioned twice in Scripture,
once in the Gospel of St. Matthew and again in the Epistle of St.
Paul to the Romans.210
A. Matt. 22, 15-22: Then the pharisees went up and took
counsel how they might entrap him in his talk. And they sent to
him their disciples with the Herodians, saying, "Master, we
know that thou art truthful, and that thou teachest the way of
God in truth and that thou carest naught for any man; for thou
dost not regard the person of men. Tell us, therefore, what dost
thou think: Is it lawful to give tribute to Caesar or not?" But
Jesus, knowing their wickedness, said, "Why do you test me, you
209 Cf. supra, p. 104.
210 The paying of taxes is mentioned in several other places in Scripture,
for example, IV Kings, 23, 35; Matt., 17, 24; etc., but none of these passages
gives any hint as to the obligation of paying taxes.
hypocrites? Show me the coin of the tribute." So they offered

him a denarius. Then Jesus said to them, "Whose are this image
and the inscription?" They said to him, "Caesar's." Then he
said to them, "Render, therefore, to Caesar the things that are
Caesar's, and to God the things that are God's." And hearing
this they marvelled and leaving him went off.
At one time the defenders of the commutative justice theory con

sidered the words of our Lord, "Render to Caesar, the things that
are Caesar's," clear proof that taxes are due in commutative justice.211
Two things in the text prompted this conclusion, (a) the use of the
word "render," (b) the fact that the things to be rendered are called
"Caesar's," i. e., the possessive form of the proper noun is used.
(a) The word, "render," is a translation of the Latin, "Red-
dite," which in turn is a translation of the Greek, ditooot. . The
primary meaning of both the Latin and the Greek words is "to
give back." 212 It was argued that if taxes had to be given back to
Caesar, taxes belonged to Caesar in commutative justice, since things
are not given back except to their owners. There are two flaws in
this argument: (1) Both the Latin "reddere" and the Greek
dbr.08180411 are used in a secondary sense of "to give" without
qualification. (2) The same verb, "render," governs both "the
things that are Caesar's," and "the things that are God's." If it be
maintained that the use of "render" presupposes an obligation in
commutative justice, by all the rules of grammar and logic, it should
follow that the same obligation be predicated in both clauses and
hence things are to be given back to God in commutative justice.
But no one maintains that things are owed to God in commutative
justice, therefore the word "render" cannot mean "to give back."
All that is proved by this text is that there is an obligation of giv
ing things to Caesar and an obligation of giving things to God. The
virtue urging the obligation is not indicated. It is true that the text
does not rule out commutative justice but proof that the virtue con
cerned is commutative justice must be sought elsewhere.
211 Cf. Molina, De lustttio et lure, tr. II, disp. 674, n. 3 ; Suarez, De Legibus,
V, c. XVIII, 4.
212 For the meaning of the Greek terms, see, George Liddell-Robert Scott,
A Greek-English Lexicon (Oxford, 1897).
(b) The use of the possessive form of the proper noun,

"Caesar's," does not necessarily indicate ownership in the strict
sense because the same form is used in reference to God. Since
therefore no distinction is drawn in the text between the manner in
which things are God's and the manner in which things are Caesar's,
no conclusion may be drawn from the text as to the manner, i. e., as
to the virtue, according to which things are to be given to either God
or Caesar that cannot apply to both. But things are not owed to God
in commutative justice, therefore the text cannot be used as proof
that things are owed to Caesar in commutative justice.
The true probative force of the words of Christ is very accurately
stated by Marres: "By the words of Christ, therefore, the law of
paying tribute obliges in the same way as the precept of giving God
the things that are God's; but the precept of giving to God the things
that are God's, binds in conscience; therefore the same is to be said
of the law of paying tribute." 218
B. Rom. 13, 1-7: Let everyone be subject to the higher

authorities, for there exists no authority except from God, and
those who exist have been appointed by God. Therefore he who
resists the authority resists the ordinance of God; and they that
resist bring on themselves condemnation. For rulers are a terror
not to the good work but to the evil. Dost thou wish, then, not
to fear the authority? Do what is good and thou wilt have
praise from it. For it is God's minister to thee for good. But
if thou dost what is evil, fear, for not without reason does it carry
the sword. For it is God's minister, an avenger to execute wrath
on him who does evil. Wherefore you must needs be subject,
not only because of the wrath, but also for conscience' sake. For
this is also why you pay tribute, for they are the ministers of
God, serving unto this very end. Render to all men whatever is
their due; tribute to whom tribute is due; taxes to whom taxes
are due; fear to whom fear is due; honor to whom honor is due.
218 De Justitia, I, lib. II, n. 192; cf. Priimmer, Man. Theol. Mor., I, n. 290;
Merkelbach, Sum. Theol. Mor., II, n. 626. Merkelbach uses this text to prove
the thesis: Tributa de iure et per se obligant in conscientia. But since he holds
that tax laws can be purely penal, the meaning he takes out of the text is: tax
laws may oblige in conscience to the act or not, depending on the will of the
legislator.
This text also has been used to prove that taxes are due in com
mutative justice. Again the conclusion is based on two elements in
the text, neither of which warrant the conclusion. These elements
are, (a) the public authorities are called ministers, (b) the use of
the word "render."
(a) Suarez and Molina use this argument. St. Paul calls the
public authorities "ministers," therefore they should be recompensed
for their ministry. Suarez puts it thus: "Reddite omnibus debita:
cui tributum, tributum, etc. Et rationem reddidit, quia ministri Dei
sunt, in hoc ipsum servientes. Ideo enim, inquit, tributa praestatis.
Ergo hae leges, ut tales sunt, nullo modo possunt dici poenales; sicut
leges taxantes pretia rerum, vel stipendia operariorum, aut militum,
non possunt dici poenales respectu eorum, qui talia stipendia solvere
coguntur, quia in eorum utilitatem vel commodum illae res vel
munera fiunt." 214 Molina says: "Haec nostra sententia ita explicata
confirmatur ex illo ad Rom. 13. Ideo et tributa praestatis, ministri
enim Dei sunt, in hoc ipsum servientes. Quasi ratione ministerii,
quod exercent, reipublicaeque administrationis, debita principibus
sunt tributa."215
The force of the argument in both authors hinges on the
word "minister," the Greek, tairugyoc;. Etymologically, the word
tamjoyog means "one who performed a h-irvgyia." It is inter
esting to note that originally, a tamjoyia was a "burdensome
public office which the richer citizens performed at their own
expense." However it gradually lost its altruistic connotation and
meant simply, "any service or work of a public kind." In the first
century a. d., taiTupyoc; ordinarily meant, "who who performed
a public work." Its basic meaning both in this sense and in any
other it may have had, was always, "one who does something for
(i. e., both in the place of and for the advance of) somebody else."
Both Suarez and Molina fasten on this basic meaning of the word
and interpret St. Paul incorrectly as meaning that the rulers are
"ministers" because they perform public works for (in the place of
and for the advantage of) the people, for both authors argue that
214 De Legibus, V, c. XIII, 4. The Latin is retained in order to preserve the

force of the argument.
215 De Justitia et Jure, diss. 556, 3.
one who performs a public work should receive a stipend from the
people for the work. But this is certainly not the meaning of St.
Paul. St. Paul was not proving that taxes are due in commutative
justice. The entire passage is an exhortation to civil obedience and
St. Paul is careful to point out the reason why civil rulers should be
obeyed: "For there exists no authority except from God and those
who exist have been appointed by God." It follows, from the divine
source of the authority, that disobedience to the rulers is disobedience
to God. St. Paul proposes another reason for not resisting civil au
thority: "But if thou dost what is evil, fear, for not without reason
does it carry the sword. For it is God's minister, an avenger to exe
cute wrath on him who does evil." In St. Paul's mind, the rulers are
called ministers because they take the place of God, not because they
take the place of the people. The ruler takes the place of God; he
does God's work, with God's authority. Hence the ruler is to be
obeyed and feared if he is not obeyed. If any obligation in com
mutative justice can be wrung from this passage it would be an obli
gation on the part of God to recompense the rulers for they are His
ministers.
(b) There is some prima facie justification for arguing that
"render" in this passage implies a debt in commutative justice for
the original Greek text reads: dutooote naoi ta; oqpeddg. The object
of "render" is 6q>eiXag and this word literally means a "debt."
Therefore the passage could be translated: Pay all debts (Return
things owed to everyone). But the key to the correct interpreta
tion of djtoootE jtaoi tag ocptiMg is found in the things which it
governs. 'Arcooote jtdai tag 6<pEiXag is a general principle which is
immediately particularized by four concrete examples: Tq> tov (popov
tov qpooov, top to xekoq to teXog, xw tov q>66ov tov qp66ov, Tq> rrrv
Ti[iT)v ttiv TiuT^v. Three of these examples justify the interpreta
tion which sees in dbtoooxe a reference to an obligation in commuta
tive justice. But one of the examples does not lend itself to this
interpretation. "Tribute," "taxes," and "honor" might possibly be
owed in commutative justice, but "fear" is certainly not due in com
mutative justice. Since St. Paul says all four things are "due," his
statement of the general principle, "Render to everyone his due,"
must be interpreted in such a way that it will include the four exam
pies he himself uses. But by interpreting the principle as meaning

a debt in commutative justice it cannot be applied to "fear," there
fore this cannot be the meaning intended by St. Paul.
The only conclusion concerning the obligation of paying taxes
that can be drawn (and must be drawn) from the passage of St.
Paul, is that there is an obligation in conscience of paying taxes.
Those who maintain that the passage proves an obligation in com
mutative justice, read something into the text that is not there; on
the other hand, those who maintain that the passage leaves room
for the theory that tax laws are purely penal laws, ignore the con
clusion which St. Paul himself draws from the principle that "no
authority exists except from God," namely, "Wherefore you must
needs be subject, not only because of the wrath, but also for con
science' sake."
(2) The obligation of paying taxes is mediately an obligation of
legal justice. Once it has been established that tax laws oblige in
conscience to the act prescribed, there is no difficulty in proving that
the obligation is at least mediately one of legal justice, for the formal
object of any just law is the common good and this is precisely the
formal object of legal justice. This much must be admitted even by
those who hold that taxes are due in commutative justice.216 Under
stood in this sense, the proposition is certain. This certainly is not
weakened by the fact that those who hold the purely penal law
theory do not subscribe to the proposition, for even though G. Renard
is anticipating a bit when he labels the purely penal law theory in
general, "completement preteritee," 217 K. Wagner is perfectly cor
rect in saying: "Die Anschauung, als waren die Steuergesetze aufzu-
fassen als sog. reine Poenalgesetze, ist mit Rucksicht auf unsere
modernen Verhaltnisse ganz und gar unhaltbar." 218
The same certainty does not attend the statement that the obli
gation in legal justice is only mediate. The question here is whether
legal justice is operative per se or per aliam virtutem; and further,
if it is operative per se, does the act of paying taxes constitute a per se
2ieCf. Billuart, De Jure et Justitia, diss. IX, art. VII, para. 2; Aertnys-
Damen, Theol. Mor., I, n. 831.
217 La Theorie de Leges Mere Poenales, p. 59.
218 Die sittlichen Grundsatze, p. 57.
operation of legal justice? Since legal justice is a general virtue it can

operate by directing the acts of other virtues towards its own end,
i. e., toward the common good ; but can it also operate independently
of other virtues? Most authors take it for granted that legal justice
can effect the common good only mediately through the acts of other
virtues.219 But W. Ferree has shown that this is not the mind of St.
Thomas who, as a matter of fact, left the question open.220 As no
author has succeeded in settling the question, there is some doubt
whether any act can be performed in virtue of legal justice alone.
However, since the work of Ferree, the opinion that legal justice need
not work through the other virtues is certainly not untenable.
But even granting that there is an immediate and proper act of
legal justice, this act would hardly be the act of paying taxes, for
the immediate act of legal justice would necessarily be such that it
could in some way "inform" every mediate act of legal justice. For
example, the proper act of charity, which is a similar general vir
tue,221 enters into every mediate or commanded act of charity. But
it is impossible to see any formality in the act of paying taxes which
could, for example, enter into the act of heroism performed by a
soldier dying in battle and make this act of heroism an act of legal
justice. For this reason it is most probable that the obligation of
paying taxes is only mediately an obligation of legal justice.
(3) The immediate obligation most probably does not flow from
commutative justice. Having seen that in all probability, the act of
paying taxes is not an immediate or proper act of legal justice, it is
necessary to determine what virtue does immediately urge the paying
of taxes. Three such virtues have been proposed, namely, commu
tative justice, legal justice, and obedience. The present proposition
concerns the possibility of commutative justice being the virtue in
volved.
The critique previously given of the arguments that are usually
advanced to support the theory that taxes are due in commutative
justice, seems to make it plain that these arguments do not have
sufficient intrinsic value to offset the fundamental difficulties in
210 Cf. Hcring, "De Genuina Notionc," Angelkum, 14 (1937), p. 464 ff.
220 Cf. The Act of Social Justice, pp. 39-63.
22i Cf. II-II, q. 58, a. 6.
herent in that opinion.222 To this critique may be added the fol

lowing consideration.
The right of every individual to own property is a natural right,223
i. e., a right based on the very nature of man. It does not originate
in or with the state. According to the constant teaching of Catholic
theology, man can and does own property, and own it to the exclu
sion of ownership by anyone else, even by the state. In other words,
the state is not the "co-owner" of the private property of the citizens.
When, therefore, a citizen owns something, the only way the state
can acquire a right to that thing, is to acquire a title thereto. In the
matter of taxes, the titles that have been suggested as a basis for the
right of the state to the property of the citizen, have not been proved
sufficiently to overcome the prior right of the citizen to the thing he
here and how possesses. Evidently then, no confessor is justified in
urging the duty of paying taxes as an obligation in commutative
justice. However, since the suggested titles do have a claim to proba
bility, the theoretical proposition that the immediate obligation of
paying taxes does not flow from commutative justice, cannot be quali
fied as certain.
One final argument against the theory itself—in a sense it is the
epitome of all the arguments against the theory—is the consideration
that an obligation in commutative justice on the part of the citizen
toward the state, would necessarily entail a correlative obligation on
the part of the state toward the citizen. In other words, the state
would have an obligation in commutative justice to see that the
citizens—at least those citizens who paid taxes—received their just
share of the community goods. But according to the principle that
has been accepted by all from the time of Aristotle to the present
day, it is the function of distributive justice to distribute the com-

223 The right to own property is not to be confused with the title to a
certain piece of property. All men have the right to own property but not every
man owns this or that piece of property. A title sets up a moral union be
tween the individual and the thing so that the thing is spoken of as "his." The
right begets in others the obligation to respect this union. The right is logically
prior to the title but it is never exercised without the title. The title presup
poses the logically prior right and is meaningless without it.
I
mon goods and the common burdens. To put it in another way, the
right of the citizen to the goods of the community is a right in dis
tributive justice, not in commutative justice.224
(4) The immediate obligation of paying taxes is probably an
obligation of piety. From what has been said of the virtue of legal
justice, the meaning of the phrase, "the immediate obligation of pay
ing taxes," is sufficiently clear. It is an obligation flowing directly
or proximately from some virtue which is itself ordinated toward
the common good by legal justice. Of the three particular virtues
which have been proposed as fulfilling this function, the first, com
mutative justice has been treated, the second, obedience, is so evi
dently not the sought-for virtue that it need not receive special at
tention,225 the third, piety, is proposed as the virtue which probably
gives rise to the immediate obligation of paying taxes.
224 The teaching that taxes are not due in commutative justice, sometimes
occasions the startled question: Then there is no obligation of making restitu
tion? The answer to the question is so evident that one wonders why it is
asked at all. It seems to betray a feeling that once the obligation is commu
tative justice goes, everything goes, as though commutative justice were the only
hold on a man's conscience. The answer, of course, is an unqualified: no, there
is no obligation of making restitution. But the matter does not stop there.
If there is an obligation of paying taxes, the obligation remains as long as the
law imposing the obligation of paying taxes is effective, for the time element in
tax laws is tempus ad urgendum obligationem, not tempus ad finiendum obliga-
tionetn. Therefore a person who fails to pay his income tax this year is not
automatically excused from the obligation of ever paying it. It might be urged
that in effect this amounts to restitution, since the state will get the money if
the citizen lives up to his obligation. There is no difficulty in agreeing that the
effect on the state treasury will be the same whether the obligation is called an
obligation of making restitution or simply an obligation of obeying a law that
has not yet been complied with. At the same time it is worth insisting on the
exact use of terms for the obligation of making restitution is governed by one
set of principles and the obligation of observing laws, is governed by another
set. Thus it sometimes happens that the obligation of observing the law would
not be urged whereas the obligation of making restitution would be urged.
225 Obedience may be taken on two senses, materially or formally. Material
obedience is found in every act of compliance with a precept. As Billuart says:
"Material obedience is a certain general virtue or rather a circumstance [italics
added] of every good act that is prescribed; and disobedience also, taken in this
material sense, is a general sin or circumstance of every sin." Tr. de Caeteris
There are two reasons for qualifying the proposition under con
sideration as only "probable." There is first of all, the slight degree
of probability of the theory that the immediate virtue in the case is
commutative justice. Secondly, there are no absolutely convincing
reasons pointing unmistakably to piety as the virtue concerned. The
lack of certainty on the second count is itself due to lack of clear
knowledge of the nature of piety as a virtue, for if there were no
doubt as to the essence of piety or as to the limits of its proper
sphere of action, there would be no difficulty in deciding whether the
act of paying taxes belonged to piety or not.
The general haziness concerning piety is woven right into the
definition of the virtue. Thus Merkelbach says: "Pietas est virtus
qua parentibus et patriae obsequium et cultus tribuitur." 228 "Offi-
cium et cultus" is usually translated as "service and homage"—
terms that can be applied to almost any act performed for another
out of any motive other than commutative justice. The definition
makes no mention of the special aspect of the object (parentibus et
patriae) which constitutes the motive for rendering service and hom
age to parents and country. Nor does it bring out the fact admitted
by all that there are obligations in piety residing in parents and
country. Concerning the object of the virtue St. Thomas, after stat-
Virtutibus Justitiae Annexis, diss. II, a. 1. Obedience in this sense is not a vir
tue, hence it could not be the particular virtue giving rise to the immediate
obligation of paying taxes. "Formal obedience," to quote Billuart again, "is
the execution of the prescribed act, because it is prescribed." Formal obedience
is found only in those acts which are executed precisely, though not necessarily
exclusively, because they are prescribed. Formal obedience is a special virtue
because, as Billuart says: "it has a special object, namely, the precept of the
superior formally as precept." This special virtue of obedience could not be the
immediate virtue whereby taxes are to be paid, for as St. Thomas says: "The
aspect of precept, which obedience considers, occurs in acts of all virtues." II-II,
q. 104, a. 2. Therefore there is nothing proper to the act of paying taxes as
such that could be the object of obedience. The only aspect in the act of pay
ing taxes which obedience considers, namely, the aspect of fulfillment of a pre
cept, is not proper to this act but is common to acts of all virtues. However,
since the "aspect of precept" is present in every act of paying taxes, the act
could be made an act of obedience by the intention of the one performing the
act.
226 Sum. Theol. Mor., II, n. 816.
"
'
ing that a special virtue is one that regards an object under a special
aspect, says: "Since then, the nature of justice consists in rendering
another person his due, wherever there is a special aspect of some
thing due to a person, there is a special virtue. Now a thing is in
debted in a special way to that which is its connatural principle of
being and government. And piety regards this principle, in as much
as it pays duty and homage to our parents and country, and to those
who are related thereto."227
Piety, then, is a special virtue; it has as its objectum quod,
service and homage; its objectum cut, parents and country; its
objectum formale quo, that special debt that is owed to one's con
natural principle of being and government.
It is evident that if the paying of taxes is to be brought under
piety, it would be included under service, not under homage, for as
St. Thomas remarks: "Homage refers to reverence or honor." 228
But unfortunately discussions regarding the acts of piety which are
demanded of the citizen toward the state are usually limited to acts
of homage.229 Perhaps the reason for this is to be found in St.
Thomas, who maintains that ordinarily service is only per accidens
required of a son toward his parent. He says: "We owe something
to our parents in two ways: that is to say, both per se and per
accidens. We owe them per se that which is due to a father as such:
and since he is the son's superior through being the principle of his
being, the latter owes him reverence and service. Per accidens, that
is due to a father, which it befits him to receive in respect of some
thing accidental to him, for instance, if he be ill, it is fitting that his
children should visit him and see to his cure; if he be poor it is
fitting that they should support him; and so on in like instance, all
of which come under the head of service due." 2S0
227 II-II, q. 101, a. 3.

228 n-II, q. 101, a. 2.
228 Cf. Merkelbach, Sum. Theol. Mor., II, n. 818 ; Billuart, op. at., diss. I,
a. 1. Billuart doesn't give much importance to piety towards one's country.
He says: "Debitum patriae non videtur tanti momenti, cum videamus summos
viros quibus omne solum est patriae, hunc vulgarcm patriae affectum, licet alias
non contemnendum, non magnificare."
230 hoc. at.
'
s
It might be argued from this that piety obliges the citizen to

support the state only per accidens, i.e., under exceptional circum
stances, as in time of war. Hence piety would not account for the
obligation of paying taxes that supply the perennial or per se needs
of the state. This conclusion would indeed follow if the obligations
imposed on the citizen by piety were strictly parallel to those it im
poses on the child. However, there is no good reason for maintain
ing that this virtue begets the same type of obligations in both the
citizen and the child, and there is an excellent reason for maintain
ing that it does not. For it is certain that the obligation imposed by
piety on the state is not perfectly parallel to that it imposes on the
parent, since the father has a per se obligation to support his son,
while the obligation of supporting the citizen falls on the state only
per accidens, i. e., when there is no one else to perform this function.
Thus it cannot be maintained that in every case the obligations in
the same category (i. e., those of the inferior to the superior and
those of the superior to the inferior) imposed by piety, are of the
same character. And since both the child and the state need con
stant support, it seems reasonable to maintain that piety demands
this support to be given by the father and the citizen respectively.
' "
CONCLUSION
It will not be necessary to summarize the conclusions reached

as a result of the investigation carried out in the preceding pages.
These results are summarized sufficiently in the four propositions
contained in the fourth article of chapter three. Nevertheless, it is
worth repeating that in view of the inherent weakness of the com
mutative justice theory, together with the prior right of every indi
vidual to retain title to his possessions until that right is definitely
overthrown by the morally certain right of another, it is hardly pos
sible to maintain that in practice a person is obliged to pay his taxes
in virtue of commutative justice. Indeed, the commutative justice
theory would have to be morally certain before anyone could be
bound to pay taxes in virtue of commutative justice.
Another point worth emphasizing is that even though an indi
vidual is not obliged in commutative justice to pay just taxes, he has
nevertheless, an obligation in conscience to pay. This conclusion is
based on the presumption that just laws bind in conscience to the
act prescribed. It is up to the defenders of the purely penal law
theory to prove that in the case of tax laws, this presumption is over
thrown by adequate evidence to the contrary.
104
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-
ALPHABETICAL INDEX*
Ability to pay, basis of apportioning Catechism of the Council of Trent,

a tax, 24. 136—note 150.
Aertnys, 18, 72. Cause required for a just tax, 23.
Alphonsus, St., 57, 92, 136, 137, 154; Citizenship, connatural obligations of,
misinterpreted by Michiels, 89— 125.
note 18; misquoted by Berardi, 36. Common good, in fees, 8; relation of
Andreas, misinterpreted by Angelus, tax to, 99.
87. Common goods, not matter of a con
Angelus, 28, 87; on the purely penal tract, 126.
law theory, 28. Community and state, identity of,
Antonine, St., 42, 136. 131.
Aristotle, 132, 140. Commutative justice, in fees, 2; as
Assessments, 4. basis of division of public revenue,
Augustine, St., 70—note 112. 4 ; nature of, according to St. Thom
Authority of theologians, norms for as, 113-119; not the source of the
judging, 110. obligation of paying taxes, 1 19 if.,
Authority, public, 97. 158; criticism of the theory that
Authority requisite for a just tax, 22. tax laws bind under, 119; analysis
Automobile license, real value of, 4. of the intrinsic arguments, 119;
contract theory of taxation, 119;
Ballerini, 72, 112—note 86, 136, 138, argument of Damen and Bouquil
149; edition of Gury by, 62. lon, 129; argument from eminent
Beia, 31. domain, 133; analysis of the extrin
Bellarmine, St. Robert, 95. sic arguments, 136; S. Scripture,
Benefit, as basis of apportioning the 136; authority of theologians, 136.
tax burden, 24. Compensation in eminent domain, 134.
Berardi, 35, 112—note 86. Concina, 55.
Bernard, St., 84. Conditions for a just tax, 22 ff.
Berthe, 57. Contract, definition of, 121 ; elements
Billuart, 55, 87, 92, 137, 148, 160— of, 121; subject, 122, matter, 124;
note 225; misinterpreted by Mi form, 126.
chiels, 93—note 33. Contract theory, 119.
Bloch, 137—note 151. Contractual revenue, 5; definition, 6;
Bona fungibilia, 118. distinct from fees and special assess
Bonacina, 47. ments, 10.
Bouquillon, 69, 105, 107, 129. Contractual theory of the origin of
Bucceroni, 81. the state, 120.
Creeden, 78.
Castro, Alfonse, 31, 87. Crolly, 37, 109; misquoted by Marres,
39.
* Numbers in bold type refer to analysis
of the particular author's opinion. Custom, 106; material or formal, 106.
171
-
I
Damen, 72, 110, 129, 133; definition Genicot-Salsmans, 36.

of purely penal law, 28. Gillet, 95.
Davis, 39, 105, 108. Gousset, 59.
Demand, meaning of, 2. Government distinct from state, 122—
Direct taxes, 16; types of, 17; in note 112.
France, 18; in the United States, Gratuitous revenue, 1.
18. Guidagium, 28.
Direct and indirect taxes, distinction Guilt, nature of, 96.
in the obligation of paying, 139. Gury, 60.
Distribution of state debt among the
citizens, 130. Heavy fines, interpretation of, 105.
Distribution of the tax burden, 24. Henry de Gand, 85.
Divini Redemptoris, 145, 146. Hering, 144—note 174.
Dominican Rule, 84. Hostiensis, 22—note 54.
Du Contrat Social, 120. Human acts, in relation to law, 101 ;
indifference of, 107.
Eminent domain, definition of, 133; Hypothetical precept, 90.
limitation of, 134.
Exorbitant penalty, common sense in Incidence of tax burden, 20.
terpretation of, 139. Income tax, 2, 17; constitutionality
of, 19; decision of the Supreme
Fathers, teaching on obligation of pay Court on, 139.
ing taxes, 70. Indirect tax, 16; types of, 17; in
Fees, notion, 7; special benefit in, 8; France, 18; in the United States,
element of common good in, 8; 18.
distinct from contractual revenue Inheritance tax, 17, 139.
and special assessments, 10; defini Intention of the legislator, 104.
tion of, according to Seligman, 11. Iorio, 41.
Ferree, 141, 146, 158. Ius, definition of, 115.
Ferreres, edition of Gury, 62. Justice, object of, 115; distributive,
Feudal system, influence on later 160; cf. commutative and legal jus
teaching concerning the obligation tice.
of paying taxes, 137—note 151.
Final cause of legal justice, 142.
Fines, revenue from, 6. Koch, 87, 95.
Fiscal taxes, 23.
Formal custom, 106. Lacroix, 55.
Formal obedience, 160—note 225. Law, nature of, 97-103; norm of
France, direct and indirect taxes in, morality in human acts, 97 ff.; need
18; income taxes in, 139. of, in society, 98; material cause
Frassinetti, 39, 112—note 86. of, 98; relation to the common
Freund, 134—note 143. good, 99; relation to reason, 100;
distinct from religious rules, 101.
Gabella, 15. Laymann, 48.
Gasoline taxes, 10, 25. Legal injustice, sin of, 142.
-
Alphabetical Index 173
Legal justice, meaning of, 140; ac Molina, 43, 58, 137, 155; use of terms
cording to Aristotle, 140; accord by, 15; norm for confessors, 53.
ing to St. Thomas, 140; sin of Monopolistic control of business by
legal injustice, 142; as a specifi the state, 5.
cally distinct virtue, 143; material Moral obligation and prescription of
cause of, 143; theory of taxation, law, 103.
history of, 148 ff; criticism of the
theory, 151 ff. Navarrus, 30, 89, 90.
Legislator, intention of, in purely Noldin, 76.
penal laws, 104. Non-acceptance of law by the people,
Lehmkuhl, 76, 138. 109.
Lessius, 145—note 177. Non-contractual revenue, 6.
License, 2. Non-gratuitous revenue, 1 ; classifica
Limitation of right of eminent do tion of, 2; division, 5.
main, 134. Obedience, 148, 160; formal and
Linsenmann, 95. material, 160—note 225.
Lopez, 104. Obligation of a purely penal law, 94.
Lugo, 49, 115, 137; misquoted by Be- Obligation of declaring taxable goods,
rardi, 36; misinterpreted by Geni- 68, 71, 72, 79, 81.
cot, 37. Obligation to pay before or after
Luther, his estimate of Angelus, 28— demand, 44, 46, 49, 50, 54, 55, 57,
note 3. 72, 73, 81.
Mansi, 49. Officium et adtus, as the acts of piety,
Marc, 75, 106. 161.
Marres, 66, 154.
Material cause of law, 98. Patriotism, 151.
Material cause of legal justice, 143. Patuzzi, 57.
Material custom, 106. Pcdagium, 28.
Material obedience, 160—note 225. Penal law, cf. purely penal law.
Matt. 22, 15-22, analysis of, 152. Penal power, nature of, 6.
Medieval tradition, influence cf, on Physiocrats, 16.
Billuart, 149. Pietas, definition of, 161.
Melandri, edition of Gury, 61. Piety, 151; as the source of the obli
Merkelbach, 71, 87, 111, 137, 161; gation of paying taxes, 160.
definition of a purely penal law, 28; Pius XI, 145.
on custom in modern states, 108. Poll tax, 2.
Michiels, 87. Priimmer, 68, 87, 133, 136; definition
Mill, J. Stuart, notion of direct and of taxes, 13.
indirect tax, 20. Pruner, 74, 136, 149.
"Minister," meaning of, in St. Paul, Public authority, purpose of, 97.
155. Public loans, 1.
Miscellaneous arguments for the pure Public property, sale of, 1.
ly penal law theory, 108. Public revenue, division, 1 ff ; sche
Mixed law, definition of Castro, 88; matic division, 12.
of Billuart, 93. Public work, definition, 130.
'
Purely moral law, definition, 88. Sabetti, edition of Gury, 62.

Purely penal law, definition of Damen, Sabetti-Barrett, 77.
28; of Merkelbach, 28; of Castro, Salinarium, 28.
88; of Billuart, 93. Purely penal Scripture references, 24, 32, 104, 136,
law and merely penal law, 92—note 152 ff; cf. Matt., and Rom.
29. Penal law theory, history, Seligman, 25, 127, 135—note 144;
83 ff; binding force of, 94; possi definition of special assessment, 9;
bility of, 94. Penal law theory of notion of fee, 7; definition of tax,
taxation, criticism of, 103 ff; analy 12.
sis of the intrinsic arguments, 104; Sin of legal injustice, 142.
intention of the legislator, 104; cus Social justice and legal justice, 145 ff.
tom, 106; analysis of the extrinsic Social organization as the act of so
argument, 110. cial justice, 146.
Purpose of taxation, 2. Social taxes, 23.
Society, necessity of, 97.
Special assessments, 9 ff ; role in
Quadragesimo Anno, 146.
Quasi-contract, implications in the financing American cities, 9; dis
tinct from fees and contractual rev
term, 129—note 122.
enue, 10; definition according to
Quesnay, 16. Seligman, 11; distinct from special
Quid pro quo basis of eminent do
taxes, 11.
main, 135.
Special benefit in fees, 8.
Special tax, distinct from special as
Reason in relation to law, 100. sessments, 11.
Regulation, definition of, 2. Sporer, 49.
Relation governed by commutative State, necessary society, 6; origin of,
justice, 113; termini, 113; object, 6; purpose of, 6; distinct from gov
114; norm, 116. ernment, 122—note 112; as con
Religious rules, distinct from law, tracting party, 123, 125; composed
101. of families, not of individuals, 127;
Renard, 95, 157. identity of state and community,
Restitution, meaning according to St.
131.
Thomas, 117; not demanded in tax Strict justice, 116.
delinquency, 160—note 224. Strict right, 116.
Revenue, definition, 1; gratuitous and
Suarez, 22, 44, 87, 90, 119, 137, 148,
non-gratuitous, 1; contractual, 5; 155; misinterpreted by Michicls, 90
non-contractual, 6; derived from —note 24.
fines, 6. Supreme Court of the United States,
Right to own property, a natural 139.
right, 159; distinct from title, 159 Sylvester, 95.
—note 223.
Rom. 13, 1-7, analysis of, 154. Tallias, 42.
Roncaglia, 49. Tanquerey, 79.
Rousseau, 120. Tax -payer, distinct from tax-bearer,
Rule of St. Dominic, 84. 20.
^
Alphabetical Index 175
Taxation, purpose of, 23. Title to own property, distinct from

Taxes, distinct from fees and special right, 159—note 223.
assessments, 10; specific note of, 10; Toledo, synod of, 86.
nature of, 12 ft; definition accord Trent, catechism of, 136—note 150.
ing to Seligman, 12; suggested defi Tributa, 15.
nition, 13; definition of Berardi,
35; division of, IS; according to United States, direct and indirect taxes
Suarez, 16; according to Physio in, 18; state-federal sovereignty of,
crat School, 16; according to 22.
incidence, 21 ; conditions for a
just tax, 22; binding force of, Vasquez, 51.
151 ff. Vectigalia, 15.
Taxing power, definition of, 7. Vicarious contract, 124—note 114.
Teodori, 92—note 29. Vigilance, interpretation of, 105.
Thelonea, 43. Voit, 57.
Thomas, St., 84, 99, 101, 103, 117,
119, 132, 141, 146, 162; nature of Waffelaert, 64.
commutative justice according to, Wagner, 80, 95, 107, 121, 129, 131,
113-119; nature of law, 97-103; 136, 157.
traditional interpretation of his Wording of laws, as sign of implicit
opinion regarding legal justice, 143; intention of legislator, 106.
Ferree's interpretation, 143. Wouters, 78, 133.
'

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THE CATHOLIC UNIVERSITY OF AMERICA

THE MORAL OBLIGATION OF

Rev. Martin T. Crowe, C.SS.R., S.T.L.

Submitted to the Faculty of the School of Sacred Theology

THE CATHOLIC UNIVERSITY OF AMERICA PRESS

Brooklynii, die 20 mail, 1944.

Washingtonii, D. C, die 31 mail, 1944.

Baltimorae, die 31 mail, 1944.

NOTION AND DIVISION OF TAXES 1

III. Conditions for a Just Tax 22

VARIOUS OPINIONS CONCERNING THE OBLIGA

III. The Opinion that Direct Taxes Must Be Paid in

IV. The Opinion that All Tax Laws Bind in Virtue

ANALYSIS OF THE VARIOUS VIEWS 83

III. The Opinion that Laws Imposing Indirect Taxes

IV. The Opinion that All Taxes Bind in Virtue of

ALPHABETICAL INDEX 171

BIOGRAPHICAL NOTE 177

The morality of tax-evasion has been a problem of perennial in

NOTION AND DIVISION OF TAXES

Taxes are a form of public revenue. In order therefore, to un

I. The Nature and Kinds of Public Revenue

1 Patterson-Scholz, Economic Principles of Modern Life (New York, 1931),

who makes the payment. Before attempting to classify the non-

2 By demand here is meant a necessity imposed by law on the citizen of

sidered in classifying the non-gratuitous revenue, is the reason why

(2) On the part of the individual making the contribution,

the particular contributor some particular thing. Correlative to

exclusion of revenue derived from issuing licenses, etc., mentioned

necessary in order to attain this end. If the services of the citizens

SE. R. Seligman, Essays in Taxation (New York, 1931), p. 406.

and privileges in the form of licenses, franchises, permits, etc. This

more special benefit to the fee-payer than a license for a private

8 Seligman maintains that special benefit in fees is susceptible of accurate

12 Supra, p. 5 for contractual revenue ; p. 7 for fees.

those who pay a gasoline tax seem to derive an intended benefit

(a) A fee is a payment to defray the cost of each recurring serv

13 Cf. Seligman, Essays in Taxation, p. 408.

(c) A tax is a compulsory contribution from the person to the

The results of the distinctions made in the preceding pages may

Penal power Taxing power

Fees Special Assessments Taxes

II. Nature of Taxes

15 Op. cit., p. 432.

an impost which looks to anything else but revenue, cannot be

18 Cf. D. A. Wells, The Theory and Practice of Taxation, p. 204 ff.

21 D. Prummer, Manuale Theologiae M oralis (Friburg in Brisg., 1928), I,

sory contribution to the government, imposed in the common interest

"gabella" and "tributum" interchangeably in his discussion of taxes.33

adopt this terminology about the middle of the nineteenth century.

87 John Gury, Compendium Theologiae Moralis (Lyons, 1850) , I, n. 707 ;

rate of inheritance taxes points to something more than a mere

45 The Constitution of the United States (Annotated), (Washington, 1938) ,

example, there is no real distinction between a tax imposed directly

61 The Shifting and Incidence of Taxation, p. 1.

intended incidence and the actual incidence are important. Intended

62 As far as the possibility of knowing the intention of the law-maker is

The older writers insisted quite strongly on the relation of each

00 Cf. Suarez, De Legibus, V, c. XV, n. 1.

should pay taxes in direct proportion to the benefits he receives

maintain that benefit is the only consideration because there is no

64 Cf. Suarez, De Legibus, V, c. XVI, n. 4 ; Priimmer, Man. Theol. Mor.,

VARIOUS OPINIONS CONCERNING THE OBLIGATION