Question XXVII: To whom belongs the faculty of annulling the vows of those who have, and those who have not, reached puberty

FIRST, as to the Father, it has been shown above that this invalidation of vows pertains to him.

The QUESTION is about the Tutor and the Curator. They differ, however, because a Tutor is given principally to the person, as is clear ex §. Ad certum tempus in fine, Instit. qui testamento tutores, there: Personae, non causae, vel rei, tutor datur. Secondarily, however, he is given for goods, as is established ex §. Datus. Instit. de excus. tutor., there: Datus autem tutor, ad universum patrimonium datus esse creditur. But on the contrary, a Curator is given principally for goods, and secondarily to the person, l. in copulandis 9. C. de Nuptiis.

THEREFORE a Tutor is given in the age of childhood, that is, up to puberty, which when completed ceases at once, Instit. Quibus modis tutela finitur, there: Pupilli, Pupillaeque, cum puberes esse coeperunt, a tutela liberantur.

BUT a Curator is given to those past puberty, and lasts through the whole time of minority, that is, up to the twenty-fifth year completed. It is clear ex Instit. de curatoribus in principio, there: Masculi quidem puberes, et foeminae viripotentes, usque ad 25. annum completum, curatores accipiunt.

EXCEPT, unless they are freed by the Prince and transferred to majority, leg. 1. et 2. C. de his qui veniam aetatis.

AND indeed there is a question: whether the office of Curator ends through marriage.

WITH REGARD to common law it does not end, which the text l. 2. ff. de minoribus proves. The same is proved by leg. Non eo minus 14. C. de Procuratore.

AND indeed that the Tutor can invalidate is certain, as commonly taught with D. Bonaven. 4. dist. 38. quaest. 3. fundamento 2., all authors at Sanchez lib. 4. summae, cap. 35. num. 60.

The REASON is, because the tutor exercises the father's right, as D. Bonaventure indicates there, and after him others.

WITH REGARD to the Curator, he is not equivalent to the Father. They concede to the Curator the invalidating of real and mixed vows, and just as the father cannot invalidate those four exceptions brought forward above, so neither can the Curator.

They DIFFER; because the Father can beyond the son's twenty-fifth year, not so the Curator.

He CAN also invalidate personal vows that prejudice the domestic governance, which we have said above can also be invalidated by the father.

WITH REGARD to the mother, some affirm, others deny.

The FIRST opinion denies. So Paludanus 4. dist. 38. quaest. 4. art. 2. num. 26., D. Antonius p. p. tit. 10. cap. 2. §. 6., Sylvest. V. religio 2. quaest. 13., Vivald. 3. part. cap. 14. num. 97., Tapia anthemica Ingressi V. reg. ssi. cap. 7. num. 49., C. de sacrosancta Ecclesia et eodem cap. 6. num. 51., Azorius tom. 1. lib. 11. cap. 17. quaesit. 7., and others at Sanchez lib. 4. cap. 35.

The SECOND opinion concedes this faculty to the mother. So it seems to D. Bonavent. in 4. dist. 38. quaest. 3. fundamento 2., where he places the son under the power of the parents: therefore also of the mother.

I KNOW that there he speaks of Tutores in the plural, but on that account by the name of parents he understands also fathers alone, because parents means Father and Mother. But Tutores are named in the plural, because several are often appointed, and to each is conceded the faculty of invalidating the vows of those subject to them, as Sylvester says, verbo Religio 2. quaest. 13. Suatez tract. de voto lib. 6. cap. 6. num. ultimo. Sanchez cap. 35. num. 70.

ON account of a similar way of speaking, D. Thom. opusc. 17. cap. 13. ad 10. is brought forward for this opinion by Sanchez num. 71., and Sotus lib. 7. de iustitia, quaest. 3. art. 1. col. 3. Nor does it stand in the way that S. Bonavent. in corpore names only the father; for since the S. Doctor wants the son to be naturally under the power of the mother, as we saw quaest. 11., it follows that the mother is also included. For this reason Sanchez also cites D. Thom. 2. 2. quaest. 189. art. 3. with this second opinion, because he said the son is naturally subject to the Father; for natural power is common also to the mother. So Sanchez. The same is in leg. regia 3. tit. 8. part. 1., Philiarc. de off. sacerd. tomo 1. part. 2. lib. 3. cap. 4., Margarit. Confess. fol. 134.

Others, however, concede this power to the mother as restricted, either after death, or the unrecoverable absence of the husband. So Carthus. cap. 30. Numer., and in the father's absence in the Indies Vivald. concedes it, 3. part. cap. 14. num. 97. Sà agrees, V. votum, if the mother be tutrix; or if she be not tutrix, he concedes it with the father dead. The same has Manuel 2. tomo summae, cap. 91. num. 10. concl. 9. The same teach Stunica de voto, quaest. 2. num. 95., Vega 2. tomo summae, cap. 129. casu 96., Sayrus clavi regia lib. 6. cap. 10., Bassaeus V. Votum 5. num. 13.

I ASSERT that simply the care of the sons falls to the mother, and that she can invalidate their vows, at least when the Father is wanting.

It is PROVED by the reason drawn from D. Bonavent. serm. 5. de praeceptis Decalogi, for as Innocentius teaches, cap. 2. num. 1. de regul., where Hostiens. Ioan. Andreas, Antonius, Cardinalis, Abbas, Anchar. and others; in these spiritual matters the natural rather than the civil reason is to be regarded; for although by civil law the care of the sons is entrusted to the father, §. foeminae, Instit. de adopt., nevertheless by natural law the son is bound to obey both parents, as is had in Exodus 20, Honora patrem, et matrem, and he is under the care of both, and we must obey both in the exercise of studious acts, whether of leisure or of labor, and live according to their counsel, and according to their command. Add that civil law also provided that Father and Mother together have the right of offering underage sons to religion, or of recalling them, cap. 2. de regul. et cap. puella 20. quaest. 2., where it is said: Si unus, aut ambo parentes offerunt; and as to the offering of them to religion this the cited Canonists assert, and others at Sanchez lib. 4. cap. 18. num. 19., and he himself follows.

I ADD another natural reason; for, although civil law, from a presumption, established the care for the father alone, yet it is not to the prejudice of the son, but in his favor, nor does it detract from the law of nature, which demands the care and guardianship of the son; but often fathers, either from negligence, do not labor for the spiritual education of their sons, or from distraction in affairs, laboring only to leave their sons rich, not good; or because fathers are often bad, or for the most part not so good as the mothers, who have more taste for spiritual things, and are often women of great prudence; and since their husbands are of lesser prudence and judgment, the sons would be left without spiritual care.

ADD the experience that the mother's education often counts for more than the father's, which not seldom hinders, as D. August. complains of in himself in lib. Confess.; the more so because underage and simple sons, like Jacob, dwell with their mother in tents.

And indeed I confess I have seen very many fathers who were worldly and of lesser prudence; but mothers pious and most prudent, better fitted for the spiritual governance of their sons, and who rightly instructed them in the way of the Lord, which the fathers, who had a taste for earthly things, would not have done. So the Seraphic Bonaventure himself testifies that by the care of his most pious mother he was snatched from death and devoted to religion, in the life of B. P. Francisci. But it is lawful for underage sons to be offered and placed in a monastery for education by parents or tutors, as is had in Conc. Vuormat. cap. 22., as also cap. Addidistis 28. quaest. 1., and in C. Toletano X. cap. 6. uti, and it is had also cap. 1. 20. quaest. 2.

But this offering makes it so that the boy cannot draw back until he has come to puberty, and then it is in his choice freely to persevere, or to return to the world; so it is had in cap. significatum, et cap. cum simus de regula.

But if those under puberty enter religion without the consent of parents or tutors, they can by right make the act invalid, and recall the underage one, unless within a year and a day they have consented by dissimulating, which time having passed, they will not be able to recall. It is had expressly cap. 2. de regul., and the law in that text says: si infra annum non reclamaverint; but in that text a day must be supplied. For so it is decided in cap. puella, 20. quaest. 2.; but this year begins from the day of knowledge of the underage one's entry had by the parents, or tutors, as the Gloss hands down eo cap. puella, and many Doctors.

Nor has C. Tolet. sess. 25. de regular. cap. 17. changed anything about these matters, except only that a girl younger than twelve years be admitted to the regular habit. Secondly, that no one make profession before her will has been examined by the Bishop; whether she has been forced, or seduced; and whether she knows what she is doing; and this examination is to be made twice, first before the habit, second before profession; but this is understood if the girl entering is more than twelve years old.

But if one under twelve years enters the monastery, she undergoes a single examination, namely at the time of profession, because before the age of twelve the Council judged it vain to precede it with that examination, on account of the tender judgment of the girl.

NOTE that Pius V. and Gregory XIII. by their own motions forbade this entry of girls under puberty, not for the cause of undertaking religion, but when it is for the cause of education alone. See Sanchez lib. 4. cap. 18.

The arguments by which the adversaries prove that invalidating the son's vows does not pertain to the mother lie shattered by what has been said; for even if civil law had entrusted it to the father alone, nevertheless the natural law precedes, entrusting it also to the mother.

The other foundations, however, prove only that the goods of the children are entrusted to the mother alone, but not the persons; nor can civil law prejudice the older obligation of the son, which is clear, if a tutor ratifies the vow for that time in which the mother, by necessity of the household, wants the services from the son, he is bound to obey the mother invalidating, as Sanchez admits, num. 78. lib. 6. num. 21; although he says the same that this is only a suspension.

So when parents and tutors are wanting, grandfathers and grandmothers also can invalidate; but when all these are wanting, I judge that any who have those sons in their power can succeed, as the master, the teacher, etc. So Less. lib. 2. cap. 40. dub. 10. num. 78., Suarez loc. cit. num. 23., and Sayrus lib. 6. cap. 10. num. 18; although Sanchez does not dare to assert it, num. 84., referring others who think with him, together with Bassaeo above.