Chapter V — Which vows of children parents, guardians, and curators can invalidate

I. Authors commonly dispute at what time the infancy of children begins. Some contend that it takes its beginning from the very animation of the fetus, and lasts until the seventh year — which they prove by the authority of Luke 1: "For behold, as soon as the voice of thy salutation sounded in my ears, the infant in my womb leaped for joy." And in this the physicians seem to agree — Hippocrates, Galen, Celsus, and Zacchia, whom Narbona reports (Vol. VII, q. 1, n. 1). Others commonly maintain that the beginnings of infancy, taken in its proper sense, is birth. This disagreement is of no importance. That a fetus, animated by a soul, existing in the womb, can be called an infant, just as the Evangelist Luke himself calls it such, there is no room to doubt. For the rest, according to common usage, infancy takes its beginning from birth, and ends at the completed seventh year — for the seventh year does not include the preceding birth-day. The age of wardship, or non-puberty, begins at the seventh year, and ends, in females, at the completion of the twelfth year, and in males, likewise, at the completion of the fourteenth. Puberty of females begins at the twelfth year, and of males at the fourteenth, and, according to common law, ends both for men and for women at the completed twenty-fifth year. Within this interval, from the twelfth and fourteenth years up to the twenty-fifth, both women and men are called pubescent, and minors — just as, from birth to the seventh year, they are infants, and from the seventh year to the fourteenth, they are wards, or non-pubescent. Wherefore the office of a guardian, who is assigned to a ward, or non-pubescent, on account of the father's absence, ceases with the age of wardship, or non-puberty; just as the ministry of a curator, who is likewise appointed for a minor on account of the father's absence, ceases, the age of puberty, or minority, having elapsed, at the twenty-fifth year — although it not infrequently happens that, as has already been said, pubescent persons, or minors, are withdrawn from the power of a curator before the space prefixed by common law, by the Prince's favor. Much else would need to be said here concerning paternal power, and its effects; but you will find all this discussed in its proper place. I have wished only to touch upon those points here whose knowledge is necessary for grasping what we are about to say.

II. Question I. Can parents invalidate the vows of non-pubescent children? Response: Some contend that vows made before the time of puberty are invalid; for which opinion Sylvester is cited (s.v. Religio, 2, q. 15, and s.v. Baptismus, q. 3), where he indicates only that children can vow near puberty. The common, and true, opinion, however, teaches that vows made around the use of reason, which is commonly held to be the seventh year, are valid — for just as, once the light of reason shines forth, non-pubescent children can sin, so too can they vow. St. Thomas (II-II, q. 88, art. 9) teaches that a father can invalidate all the vows of his children, whether real, personal, or mixed, and even the vow of religious life itself, saying this: "It must be said that if a boy or girl, before the years of puberty, does not yet have the use of reason, he can in no way bind himself by a vow to anything. If, however, before the years of puberty, he attains the use of reason, he can indeed (so far as it is in him) bind himself; but his vow can be invalidated by his parents, to whose care he remains subject." Angelicus speaks indiscriminately of all vows. There is no reason, then, why we should draw a distinction; since a stronger reason cannot be assigned for one vow over another. Indeed, it is worth adding... , that it seems fitting that such a feeble age, in all vows of the greatest weight, should be directed by another's will, and be subject to another's power. And although the light of reason may, in some children, shine forth abundantly before the years of puberty, this is nonetheless too rare an occurrence, and for the most part the opposite happens. But those things which commonly occur are to be attended to. St. Thomas's opinion is supported by Cajetan (there, and in his Summa, s.v. Votum), Sánchez (Bk. IV, ch. 18, n. 5), Suárez (Bk. VI, ch. 3, n. 6 and 7), Prado (ch. 31, q. 23, n. 61), Lessius (Bk. II, ch. 40, dub. 2, n. 18), Bonacina (disp. 4, q. 2, punct. 7, §2, n. 18), Trullench (Bk. II, ch. 2, dub. 35, n. 2), Layman (Bk. IV, tract. 4, ch. 7, n. 10), Tamburini (on the Decalogue, Bk. III, ch. 16, §3, n. 8), Leander (tract. 1, disp. 16, q. 32), the theologians of Salamanca (tract. 17, ch. 2, punct. 5, n. 45), and others commonly.

III. Question II. Can parents invalidate the personal vows of their children who have attained puberty, even though these vows may exist under their father's power? Response: Although both boys and girls, even after reaching puberty, remain under paternal power, the personal vows nonetheless which they make in that state of puberty cannot be invalidated by their parents, as regards those things which pertain to their own person — say, that he binds himself to religious life by a vow, or that he contracts marriage; but they can be invalidated insofar as they concern domestic dispensation, provided they do not disturb domestic governance. So St. Thomas says (II-II, q. 88, art. 8, ad 2): "From the time a man comes to the years of puberty, if he is of free condition, he is master of his own person, as regards those things which pertain to his own person; but he is not master as regards domestic dispensation... Whence, concerning this he cannot do anything ratified, without the father's consent." St. Thomas's opinion is subscribed to by Prado (ch. 31, q. 23, n. 45), Sylvester (s.v. Votum, 2, q. 6), Torre (II-II, q. 88, art. 8, dub. 4, qc. 6), Suárez (disp. 4, q. 6), Raphael de la Torre (n. 3), Valentia (disp. 6, q. 6, punct. 5, §2), Sayr (Bk. VI, ch. 5, n. 6), Trullench (Bk. II, ch. 5, n. 4), Leander (tract. 1, disp. 16, q. 81), the theologians of Salamanca (tract. 17, ch. 2, punct. 5, n. 46), and others commonly. Both parts of the question are established: namely, that a father cannot invalidate personal vows which do not interfere with domestic governance, but can, at his own will, break those which impede domestic government. This is established from the full and perfect use of reason as regards all those matters which properly look to the direction of the person. Vows, then, are ratified and firm which sons make in this state, when they are elicited by the full and perfect use of reason on the part of these sons. This is the one and only reason which entirely ceases, the state of non-puberty having elapsed, and the state of puberty arriving; for the state of puberty by its own nature constitutes the youth in possession of liberty, insofar as they concern the person only. The vows of non-pubescent children are subject to invalidation, then, precisely for this reason: that they lack full deliberation regarding matters affecting only their own person. This is the first part. The other part is no less manifest. For vows which disturb domestic governance ought to be submitted to paternal power under the condition of the father's future consent; since what is harmful to another (for vows disturbing domestic administration are of this kind) cannot stand without the father consenting, since he suffers damage. A father cannot, then, invalidate vows of chastity, of religious life, and of that state, once entered upon — vows of fasts, of prayers, and other such things which pubescent sons make, provided they are not so immoderate as to be contrary to domestic administration. Vows, however, of pilgrimage, of prayers, and of fasts, which would be contrary to paternal care, can be invalidated by the father.

IV. Vows made by sons in ward-status, or when non-pubescent, if they are confirmed by the sons themselves at puberty, are held ratified and firm, and are subject to no invalidation whatsoever — provided they are personal, and bring no harm to the father's power. In order for a vow to be said to be confirmed, however, it is not enough that the one vowing merely preserve it; but it is necessary that he ratify it with a new and explicit deliberation, so that he vow it anew, and add, as it were, force to the prior vow by a second act of vowing.

V. Question III. Can the vows of non-pubescent children, once confirmed by the father, subsequently be invalidated by the father? Response: Leander affirms this as more probable (tract. 1, disp. 16, q. 78), alleging for this opinion Sánchez, Fagundez, and Tamburini; nor does he produce any other reason, except that it is more probable that the father's confirmation does not stand in the way of his afterward being able to invalidate the confirmed vows — which reason, as is said, begs the question. He does, however, attempt to strengthen it by the parallel of Prelates of Regulars, who can always invalidate the vows of subjects which they have confirmed.

VI. The contrary opinion seems to me more probable, and it is defended by Suárez (Bk. VI, on...), Marcus of the office... (ch. 15 and 16), Sayr (in Clavis Regia, Bk. VI, ch. 5, n. 8), Roderiguez a Sacerdote (Vol. I, Bk. III, ch. 18), Filliucci (tract. 26, ch. 4, n. 133). That this is validly established is proven thus. Conditional vows, once the condition has been fulfilled, are ratified and firm. The vows which non-pubescent children make are conditional — namely, that the father consent. Since, then, once the father's consent has been obtained, the condition is fulfilled, they have full validity. Would not other conditioned promises of children, once the father's consent is added, become ratified? Why not, then, vows made to God as well? Whence is it held that a father can retract his given consent? In no contract, in no promise, does it happen that one who has given his consent freely, and as master, can, at his own pleasure, revoke it. The parallel of Prelates of Regulars does not conclude the matter — both because it is brought into dispute among theologians whether a Prelate, who has once confirmed a subject's vow, can invalidate it; and because the state is entirely different. A regular Prelate cannot confirm the vows of his subjects in perpetuity — since subjects are immediately under the power and dominion of the religious order, whose minister the Prelate is, not perpetually, but for a determined time. Wherefore he cannot deprive himself of the power of directing the subject for the advantage and benefit of the religious order. He can grant all that conduces to the common good of the religious order, but not what in some way harms the dominion of the religious order. Not to belabor the point: a Prelate is not an absolute master; and therefore he cannot give an absolute consent which he cannot retract. A father, by contrast, compared to his son, is an absolute master, and can give absolute consent; and what he has once granted, he cannot rescind. If a sufficient cause presses, the vow can be commuted, or dispensed by one having the authority.

VII. Vows made by illegitimate and bastard children can be invalidated by their father, unless they are placed under a guardian or curator — since, although the father does not have civil power over them, he is nonetheless bound by natural law to look after such feeble-aged children, lest they be burdened beyond what is just by the weight of vows. And in this the Doctors agree.

VIII. Question IV. Are the real vows of pubescent children subject to paternal invalidation? Response: St. Thomas affirms this (II-II, q. 88, art. 8, ad 1): "The notion of a vow cannot altogether be preserved, when one constituted under another's power vows that which is under another's power, unless he to whose power it pertains does not object." So long as sons are not of major age, or within the time of puberty, they are subject to paternal administration, and can dispose of paternal goods by no right. Null, then, are their real vows, by which temporal goods are promised by vow, the parents' consent not being obtained. The same must be said of mixed vows, as regards that part which is real.

IX. Question V. Can a father invalidate the real vows of children which concern goods of a military nature? Response: Military property, or quasi-military property, as will be said in its own place, is under the dominion of the sons. Law "A son of the family," on gifts. Vows, then, concerning these goods can in no way be invalidated by the father, since they are not goods subject to the father's dominion.

X. Question VI. Is the same to be said of vows made concerning acquired goods? Response: When the acquired goods are under the dominion of the children, as they are... constituted, so that they, though pubescent, have not only dominion, but also administration, then the father cannot invalidate the vows of his children concerning such goods — since such vows bring no harm to paternal governance, being concerning goods altogether withdrawn from his dominion and administration. On the contrary, if the father had administration of these goods, then vows made concerning these goods by the son could be invalidated by the father, on account of the impediment to right administration.

XI. If a minor son had made a vow of going to Rome to obtain absolution from excommunication, the father could not invalidate it, unless there existed some privilege granted to Religious, by virtue of which absolution could be obtained without such journeys. The same is said of vows to go in aid of the Holy Land. This, however, must be understood as applying when pubescent sons could fulfill the vows at their own expense; for the father is not bound to contribute his own goods, by which such vows might be fulfilled. As for vows made by children after they have been freed from paternal power, and as to the time at which they are freed from paternal power, nothing needs to be said at present — since it is beyond dispute that vows made by sons withdrawn from paternal power cannot be invalidated by the father. That sons are not subject to their parents after the completed twenty-fifth year, as regards the eliciting of vows and the entering of several other contracts alike, is certain. Difficulties which can arise concerning the time when paternal power is dissolved will be untangled in their proper place.

XII. Question VII. Can guardians and curators invalidate the vows of non-pubescent and minor children directly? Response: Before I answer this little question, I preface that there is a difference between a guardian and a curator. A guardian is first appointed for the governing of the person, and then, secondarily, for the administration of goods; a curator, by contrast, is first put in charge of the administration of goods. A guardian is appointed for wards, or non-pubescent children, up to puberty, upon whose arrival his office ceases; a curator's status is afterward granted to minors up to the twenty-fifth year, at which point, according to common law, the time prefixed for such office elapses — although sometimes, by the Prince's privilege, this time ceases earlier.

XIII. We say, then, that both guardians and curators can invalidate the vows of non-pubescent and minor children, in the same manner that parents can rescind the vows of their children. For a guardian of non-pubescent children, or wards, whether male or female, is reckoned as it were a father, having care not only of their persons but of their goods. He can, therefore, invalidate both the personal and the real vows of the same. A curator can invalidate all vows of minors which interfere with his administration; but those which in no way harm his governance remain firm, and are not subject to invalidation by him. All this is understood even if the vows had been confirmed by an oath. After the completed twenty-fifth year, curators have no power at all over the vows of minors, since minors are no longer such. If there are several curators of pubescent children, or several guardians of non-pubescent ones, each can invalidate the vows of subjects within the defined span of time. All this is common ground.

XIV. Vows made by a ward, or non-pubescent child, not confirmed after puberty is attained, even if they are personal, can a curator invalidate? Response: He can — since, although a curator is deputed primarily for the administration of goods, nonetheless the governance and direction of the person pertains to him secondarily. So think Sánchez, Trullench, Tamburini, Bassaeus, Leander. The opposite is taught by Suárez (Bk. VI, ch. 6, n. 24), on the grounds that a curator does not succeed in the father's place, and is given not for the person, but for goods. There is no need to spend more time in a longer discussion of this matter. To me, however, Suárez's opinion seems more probable.

XV. Question VIII. Can a curator given to a spendthrift on account of his fault invalidate that same man's real vows? Response: The common opinion affirms this — since all administration forbidden to a major is subject to the curator's dominion: therefore, whatever real vows the spendthrift makes, though ratified by vow, can be invalidated by the curator.

XVI. Question IX. Does a mother have the power of invalidating the vows of her sons, or daughters? Response: While the father is living, and present, the mother lacks the power of invalidating the vows of her sons and daughters. This is drawn, first, from Scripture itself; for in Numbers 30, the privilege of invalidating vows is attributed solely to paternal power, or to the father alone, with no mention made of the mother — though in fact there it is a matter of daughters, not sons, that is mentioned. The reason is that the father alone is head of the family. This is the more common opinion, defended by Navarrus (in the Manual, ch. 12, n. 64), Azor (Bk. XI, ch. 17, q. 3), Suárez (Bk. VI, ch. 6, n. 19), Sylvester and Paludanus there, Lessius (Bk. II, ch. 40, dub. 10, n. 78), Sánchez (Bk. IV, ch. 35, n. 58), Tamburini (Bk. III, ch. 16, §3, n. 21), Trullench (Bk. II, on the Decalogue, ch. 2, dub. 36, n. 2), Castropalao (disp. 1, on vows, punct. 7, n. 7), Raphael de la Torre (II-II, q. 88, art. 9, disp. 4, n. 8), Sayr (Bk. VI, Clavis Regia, ch. 10), Bassaeus (Vol. II, s.v. Votum, 2, n. 10), Leander (tract. 1, disp. 16, q. 118).

XVII. The contrary opinion is defended by Prado (ch. 31, q. 14, §4, n. 17), Filliarco (Vol. I, part 2, Bk. III, ch. 4). The theologians of Salamanca reject it as probable (tract. 17, ch. 2, punct. 7, n. 52). They say, then, that, the father living, or present, and a guardian assigned, or he being dead, the mother can invalidate the vows of non-pubescent children just as the father can, although this power resides principally in the father, secondarily in the mother. They add, too, that the mother can invalidate the real vows of pubescent sons, which interfere with her administration, in the same manner as the father. If, however, the real vows are concerning goods which are subject neither to the mother's dominion, nor to her administration, they cannot be invalidated by the mother.

XVIII. This opinion, insofar as it asserts that the mother, the father living, and present, can invalidate the vows of non-pubescent children, is supported by its own probability — since, in those matters which concern the direction and governance of children, natural power, rather than civil power, is to be considered. Now, although by civil law children are not under the mother's care, but the father's, who alone possesses paternal power over his sons, and can lawfully command them by right; nonetheless, by no means are they, by natural law, less subject to the mother as well. For the mother, by natural right, is bound to command her sons and daughters, and they are bound to obey her; which holds especially in the case of daughters. The mother, then, even with the father present, will be able to invalidate and rescind their vows. This is confirmed by the parallel drawn from illegitimate children subject to the father: for although these are not subject to him by civil law, nonetheless, since he is their master by natural law, he can rescind their vows. Although, then, the mother does not have civil dominion over her sons, since she is nonetheless, by natural law, their mistress, she will be able to invalidate their vows.

XIX. These arguments are by no means to be despised. If, however, the matter is examined a little more attentively, they collapse of themselves. It is true that the mother is, by natural law, mistress of her sons and daughters, and that the children are bound to obey her, being subject to her. But it is likewise true that this maternal power is subject to the power of the husband. Therefore, the husband, or father, being present, she cannot exercise such power. Since, if there were several masters... compared with one another in such an order that one is superior, the other inferior, the inferior cannot exercise power in the presence of the superior. The mother's power over her children is subject to the father's dominion. Therefore, the father, or husband, being present, it cannot break forth into act. This is evident in any government whatsoever. The greater Prelate being present, an inferior Prelate (when both are set over the same household) can command nothing. And this is expedient to remove confusion, and the disturbance of order. The patrons of the contrary opinion affirm that paternal power resides, secondarily, in the mother — since, by natural law, even considering divine law, a wife is subject to her husband. If, then, paternal power resided in the mother too, the mother, the father being present, could not invalidate the vows of her children — for it is more probable that paternal power resides equally in the father and in the mother.

The conclusion, then, is that the mother, the father living and present, cannot rescind the vows of non-pubescent children.

XX. Question X. Can a mother, the father dead, or far absent, dissolve the vows of her children, even if a grandfather, or a guardian or curator of the children, exists? Response: Prado affirms this, with others. For the rest, when a grandfather, guardian, or curator of the son exists, the mother cannot invalidate the vows of her children — since she then exercises no power, either over the persons or the goods, but the whole administration resides with the grandfather, curator, or guardian. This is the more common, and more probable, opinion.

XXI. Question XI. Can a mother, the father having died, and no grandfather or guardian existing, invalidate the vows of non-pubescent children? Response: Azor denies this (Bk. XI, ch. 17, q. 7), with Vivaldus and Villalobos, and contends that only when instituted as guardian can she rescind the vows of children — not, then, as a mother, but as a guardian. The contrary opinion is more common, and true, as is established from what has been said. For, by natural law, the mother has dominion over her sons, and they are subject to her, and are bound to obey her command. Hence, the father dead, and the paternal grandfather and guardian being absent, the mother succeeds in the father's place, and the sons, being subject to her, are bound, by natural law, to look after the governance of her non-pubescent children.

XXII. What of the real vows of pubescent children? If the mother has not been instituted as curator, she cannot invalidate such vows. For if the father himself cannot invalidate the real vows of pubescent children which in no way disturb domestic administration, how much less can the mother, who, so long as she is not curator of pubescent children, can exercise no administration, since it would not be fitting for her to do so. Nor do we consider what the theologians of Salamanca say sufficiently proven (n. 50) — namely, that a pubescent son, destitute of a father and a curator, is as it were a minor subject to his mother, and that she succeeds in the curator's place; wherefore, although the mother cannot invalidate a pubescent son's vows, she can nonetheless, as curator, invalidate the vows of pubescent children. But whence do they hold that the mother becomes, by her own nature, curator of pubescent children? This certainly can be drawn neither from natural law, nor from positive law. By natural law, indeed, the mother always, so long as she lives, has precedence over her children, and is superior to them; and they are bound to venerate her, and honor her with obedience; but that she should be their curator, so as lawfully to undertake the administration of goods, is asserted without any foundation.

XXIII. Question XII. In the absence of parents, guardian, and curator, can grandfathers, grandmothers, and other ascendants invalidate the vows of non-pubescent, or minor, children? Response: The grandfather and grandmother can invalidate those vows which we have said the mother can dissolve — since they succeed in the parents' place, and non-pubescent children are bound to obey them. See Suárez (Bk. VI, ch. 6, n. 12), Sánchez (Bk. IV, ch. 35, n. 82), where he reports Paludanus, St. Antoninus, Sylvester, q. 2, punct. 5, §5, n. 18. Bonacina teaches the same (disp. 4...), Tamburini (Bk. III, ch. 16, §3, n. 21), and several others. The grandfather and grandmother, however, the father living, can in no way invalidate the vows of grandchildren — since the paternal power of the grandfather and grandmother is remote, and can have a place among grandchildren only when the father, to whom the sons are proximately subject, and whom, so long as he lives, they are bound to obey, is absent. All this is clear, and common ground.

XXIV. Question XIII. Can a guardian, curator, or mother invalidate the vows of non-pubescent children, once puberty has elapsed, even after many years, just as a father can invalidate the vows of children? Response: A father can invalidate the personal vows of non-pubescent children, not confirmed at puberty, even after very many years, even after emancipation, and marriage contracted. But a mother, or curators, cannot do this once the twenty-fifth year has elapsed — since after this time they no longer succeed in the father's place, nor do they have any dominating power over the sons.

XXV. Question XIV. Can masters of disciples, owners of servants, masters of household staff, invalidate the personal vows made by these in their minority? Response: Suárez affirms this (Bk. VI, ch. 6, n. 23), Sayr (Bk. VI, ch. 5, n. 18), Tamburini (Bk. III, ch. 16, §3, n. 32), Lessius (Bk. II, ch. 40, dub. 20, n. 78), Layman (Bk. IV, tract. 4, ch. 7, n. 10). The contrary opinion, however, is more probable, and more common — since neither masters, nor owners, nor teachers have dominating power, whether natural or civil, over servants, household staff, or disciples. By what right, then, have they obtained this power? Not by natural right, not by civil right. Therefore by none. This opinion is defended by St. Antoninus (Part I, tit. 11, ch. 2, §6), Sylvester (s.v. Votum, 4, q. 2, dict. 2), Margarita (s.v. De irrit. vot.), Sánchez (Bk. IV, ch. 35, n. 14), Bonacina (disp. 4, q. 2, punct. 7, §2, n. 11), Fagundez (Bk. II, ch. 33, n. 12), Prado (ch. 31, q. 13, §4, n. 83, and §5, n. 90), Trullench (Bk. II, ch. 2, dub. 38, n. 7), Leander (tract. 1, disp. 16, §7, q. 126), Castropalao (tract. 15, disp. 2, punct. 5, n. 1), the theologians of Salamanca (tract. 17, ch. 2, punct. 4, n. 54), and others.