Sole Doubt: What quantity is grave in thefts by sons, wives, and religious

It must NOT be judged so severely of what a son takes away or steals from his father, or a wife from her husband, as of what he takes from a stranger, as Fagundez admonishes in 7. praeceptum, l. 7. cap. 3. from D. Bonau. in 4. dist. 15. p. 2. art. 2. quaest. 1. But the S. Doctor treats of all these things in speculo animae, capite 2.

One must, however, distinguish many kinds of goods in a household, of which a Son may take something.

FIRST, there are the castrensian goods, which the son-of-a-family, or one not yet emancipated, acquires in military service, and those which he acquires from such a peculium, L. g. castrense, ff. de peculio castrensi.

Not far removed are the goods, quasi castrensian, which a son acquires from some public office, or from one of the seven liberal arts, as if he be a Physician, Advocate, Master, etc.; and therefore those goods will not be quasi castrensian which he acquires from an art ordered to private gain; such as the art of a Shoemaker, or the like.

Of these they can freely dispose, as the Doctors commonly teach, provided they are not below the age of puberty; for then they cannot make a will concerning them, Leg. ult. Cod. de testamento militis. And so they can neither give, sell, or alienate them in any way, even with the consent of the Father, Instit. de inutil. stipulat. § pupillus; but he can alienate them with the consent of his tutor, if he has one, as Molina notes disp. 130. §. licet. The reason for the difference is, because the tutor is liable to the pupil if he ill gives his authority, not so the father; as Fagundez notes with Molina in 7. praecept. l. 7. cap. 4.

THIRD are the profectitian goods, which come to the son by the cause and occasion of the Father, and which he obtained from the Father himself, or acquired with his money, or which were left to him in view of the Father. All these are the father's, both as to usufruct and as to dominion or ownership; and therefore it will be theft of a kind to take them against the parent's will, and he is held to restitution.

HENCE the S. Doctor warns in 4. dist. 15. p. 2. art. 2. quaest. 1. and with him Fagundez num. 11. that those who trade or play with the sons of merchants should beware; for those sons are held to restore all these things in integrum, if they exist, or if they gained them in bad faith; but if in good faith, they are held to restore those things by which they have been made richer.

There are other goods which are called Adventitian, which come from the mother's side, or by industry, and in these the sons have dominion and ownership; the fathers, however, only the usufruct. Thus Molina T. I. disp. 9. and 232. Sylvester, and others, whom Fagundez follows, num. 21. Of these he cannot take against the father's will, otherwise it will be theft.

But the quantity in sons, to reach grave matter, is constituted larger than in a stranger. Bannes 2. 2. quaest. 66. art. 6. says that even fifty gold coins stolen from a rich father is not grave matter. Fagundez cap. 3. num. 3. says it does not seem mortal if a son steals two regales and a half, if the father is a craftsman; but if he is of moderate wealth, it is not mortal to take seven silver coins. But if he is very rich, he will not sin even by stealing three gold coins. See also Lessius T. I. l. 2. cap. 12. de iniuriis fortunae, dub. 13. num. 36. and Petrum Navarr. de restit. l. 3. cap. 1. num. 66. Caspens. Tract. 18. disp. 5. sectione 7. Bass. 2.

Therefore if he steals a grave quantity, he will be held to restitution, either to the Father, or to the brothers in the division. That these are sins is proved from Prov. 28: He that takes away anything from his father, and from his mother, and says this is no sin, is partaker of a murderer.

As to wives, it is certain that they sin mortally if they take a grave quantity from their unwilling husbands, to give to others. Thus the Doctors commonly, in Molina T. II. de Iust. disp. 274. Fagundez cap. 8. num. 1. with D. Bonan. in 4. dist. 15. loc. cit. The reason is, because the husband has the usufruct of all the goods.

Yet they warn, with D. Bonan., that in many cases the wife does not sin if she secretly takes something from her husband by stealth.

First, if the quantity is not notable, considering the means. They concede to the wife double what they concede to the son, as Rebellius noted, prima parte, lib. 3. quaestion. 15 sectione 13. num. 16. Fagundez num. 2. with others.

Second, if she gives according to the custom of other wives. For in these matters husbands are irrationally unwilling.

Third, if she gives in the extreme necessity of someone.

They ask, however, whether if she has an ample dowry she can give, without her husband's leave, fifty or sixty gold coins to some honest use, for instance to her nurse, or to her daughter for a dowry.

Navar. in Man. cap. 17. num. 155. Cabedo p. 1. decis. 107. deny it.

Molina T. II. disp. 34. §. ex dictis, Fagundez l. 7. cap. 8. num. 11. with D. Bonan. in 4. dist. 15. loc. cit. assert it, where, although he does not fix a prefixed quantity, he nevertheless indicates that she can distribute from her dowry, and from her paraphernalia, that is, from the goods which she reserved to her own uses when she married. Say the same of the goods which come to her during the marriage by inheritance or donation. For of these the woman has dominion and administration by the common law, and therefore she can dispose of them however much the husband resists. Thus also D. Thom. quaest. 32. art. 8. and others in Diana p. 5. tract. 8. resol. 34. as I said in the disputation de Eleemosyna. There are other cases in which the Theologians say the wife can take from the family goods, even the husband's, as if the administration of those goods has been left to her, because the husband is prodigal or insane. See Diana loc. cit. and Fagundez lib. 7. cap. 8.

Similarly the husband, if he squanders the goods held in common with his wife, the marriage dissolved, he or his heirs is held to restitution to the wife. See Fagundez, cap. 9. Tannerum, to be cited below, who rightly warns that in all things the conditions of persons, the abundance of riches, the vehemence of love, etc. must prudently be considered.

As to Religious, the Doctors judge that the quantity is to be computed by the rule of the theft of sons. Thus Sanctius lib. 7. de Relig. cap. 21. num. 31. Rebell. lib. 3. de iustitia, p. 1. quaest. 15. sect. 3. n. 22. Caspensis tract. 18. disp. 5. sect. 7. Graff. p. 1. decis. l. 3. cap. 5. num. 51. Tanner. disp. 4. quaest. 6. dub. 6. Fagundez cap. 5. who adds, however, that they are to be compared with the sons of the moderately rich; and therefore about five silver coins is grave theft, apart from those things which the convent owes him, which is held to supply him with the necessaries of food and clothing; as the S. Doct. says in Apol. pauperum, cap. 1. responsionis 3. But of these I shall treat in quaest. 7.