BANNS
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BANNS
has been presented, but also if it is done within a
certain period, fixed by law, before the presentation
of the petition. In Great Britain this period is
three months, in the United States it is four months
previous to the adjudication. Laws forbidding
such preferential payments are just, and they
should be observed. If they have been violated,
and the fact becomes known, the paj-ments may
be recovered by the trustee in bankruptcy or the
official receiver. However, although fraudulent
preferences are contrary to positive law, it is not
clear that they are again.st natural justice so as to
impose on the guilty parties an obligation in con-
science apart from any order of the court to make
restitution. The question is disputed among theo-
logians, and some maintain that no obligation to
make restitution can be imposed, apart from a
positive order of the court, inasmuch as after all
the preferred creditor has only got what belonged
to him.
If the conduct of the bankrupt with reference to his bankruptcy has been such as the law requires, the court grants him a discharge; otherwise he will be subject to certain disabilities as an undischarged bankrupt. Some special debts and obhgations are not affected by the discharge, and even with regard to tho.se which it does affect, the question arises whether an absolute discharge extinguishes the debt, or merely releases the bankrupt from legal liability. The effect of such a judicial act depends on the law of the country. If that law expressly provides that a bankrupt who has obtained his discharge is not thereby freed from his former obligations, but merely protected against legal proceedings for debt, there is an end of the question. On the other hand, it cannot be denied that the law of a country may release an honest and un- fortunate debtor from his load of indebtedness, and make him free to start business afresh. In commercial societies especially such an enactment might conduce to the public good, since it is not granted to fraudulent debtors but only to such as are honest and fulfil the rigorous requirements of the law. It is merely a question of fact as to what is the effect of the law of any particular coun- try. Lawyers and theologians are agreed that in most countries the effect of a discharge is merely to bar legal proceedings for debt against the bank- rupt. His moral obligation to pay all his debts in full when he is able still remains; he may put off payment till such time as he can conveniently fulfil his obligations, and in the meanwhile he is guaranteed freedom from molestation. This seems to be the effect of the National Bankruptcy Law of the United States. "Since the discharge is personal to the bankrupt, he may waive it, and since it does not destroy the debt but merely releases him from liability, that is, removes the legal obligation to pay the debt, leaving the moral obligation unaffected, such moral obligation is a sufficient consideration to support a new promise" (Brandenburg, The Law of Bankruptcy, 391).
On the contrary, an absolute discharge, when granted to the honest bankrupt according to English law, frees the bankrupt from his debts, with certain exceptions, and makes him a clear man again. This is aamitted by English lawyers and by theologians who treat of the effect of the English law of bank- ruptcy. When, therefore, an honest bankrupt has obtained his absolute discharge in an English court, he is under no strict obligation, legal or moral, to pay his past debts in full, though if he choose to do so, his scrupulous rectitude will be much appreciated. What has been said about bankruptcy applies also to compositions or schemes of arrangement with one's creditors when they have received the sanction of the court.
Lugo, De Justitia el Jure (Paris, 18691, di.«p. xx; Lehmkuitl,
Theologia Uoralis {Freiburg, 1898), I. nn. 1026, 1035: Crollt,
De JusHti-t et Jure (DubUn, 1870-77), III, n. 1232 • Am
Ecct. Review (Philadelphia) xxxi, 348.
T. Slater.
Banns of Marriage (Lat. bannum, pi. bann-a,-i from an Old English verb, bannan, to summon), in general the ecclesiastical announcement of the names of persons contemplating marriage. Its object is to discover any impediments to a proposed marriage; incidentally, it makes known to all duly interested in the latter the fact of its near celebration. The subject will be treated under the following heads: I. History; II. Tridentine Legislation; III. Mode of Publication; IV. Denunciation of Impediments; V. Sanctions; VI. Dispensation from Banns; VII. Non-Catholic ILsage; VIII. Civil Law.
I. Hlstory. — From the beginning of Christian society the marriage of its members was looked on as a public religious act, subject to ecclesiastical con- trol (TertuU., "De monog.", c. xi; "De pudicitia", c. iv). The obligation of making known to the bishop all proposed marriages dates as far back as the be- ginning of the second century (Ignat. ad Polyc, c. v), and ceased only when, in the fifth and succeed- ing centuries, owing to the development of the parochial system, it became the duty of the parish priest to prevent invalid or illicit marriages, in which duty he could and did avail himself of the aid of reputable parishioners (Capitula Caroli imp., ad an. 802, ed. Boretius in Mon. Germ. Hist.: Leges, I, 98). The publication in the church of the names of per- sons intending marriage seems to have originated in France about the end of the twelfth century; it was already a custom of the Galilean Church in 1215, when Innocent III mentions it in a letter to the Bishop of Beauvais (c. 27, x, iv, 1). In the same year the Fourth Lateran Council made it a general eccle- siastical law (c. 3, X, De clandest. desponsat., iv, 3). The Council of Trent confirmed this law, and speci- fied to a certain extent the manner of its execution. It must be noted that by the council's ovn\ special act its marriage decree "Tametsi", with its pro- vision for the banns (see Cl.\nde.stinity), is binding only in those parishes in which it has been severally promulgated; hence, when such formal promulgation is lacking the obligation of proclaiming the banns rests not on the Tridentine law, but on the earlier Lateran canon, also on local or particular eccle- siastical legislation and custom. (See Marri.«;e.) In England the First Council of Westminster pro- vided (xxii, 2) that the law of publishing in the church the banns of marriage must be observed, but made no provision for the manner and time of intro- ducing the practice (Taunton). In the United States- the Sixth Provincial Council of Baltimore recom- mended the bishops of the province to introduce the law of the banns as laid do\\-n by the Councils of Lateran and Trent (juxta mentem concilii Lateranensis et Tridentini). The First Plenary Council of Balti- more (1852) decreed (no. 88) that after Easter of 1853 the banns should everywhere be published, and dispensation given only for very grave reasons. The Second Plenary Council (1866) confirmed the above (nos. 331-33.3) and declared the law a very useful one and already received by custom (salubcr- rima disciplina jam unu reccpta). According to Zitelli (Apparatus juris eccl., 403), at least one publica- tion should be made in those regions and parishes in which the marriage decree of the Council of Trent has not been published; Von Scherer remarks (p. 146, n. 14) that the pre-Tridentine or Lateran law de- manded no more than one publication. It is of some interest to note that by a decree of the Sacred Con- gregation of the Inquisition (14 June, 1703) the French missionaries in Canada were obliged to pub- lish the banns for their savage converts.
