Open main menu

Page:Catholic Encyclopedia, volume 2.djvu/303

This page needs to be proofread.


BANNS


257


BANNS


aad he may also punish similarly the witnesses to the marriage. Should later on an impediment be dis- covered that renders the marriage null and void, they cannot hope, by the strict letter of the law, to obtain a dispensation, nor can they hope to have their marriage considered a putative or apparent one, entailing the legitimation of their children. The bishop is empowered by the law to inflict on the (iffending parish priest, besides other punishment, three years' suspension from his office; it is worth noting that a similar sanction was enjoined by the fifteenth century canon law of England (Lindwood's Provinciale, Oxford ed., 1679, p. 271).

VI. Dispensation from Banns. — The Council of Trent allows the bishop to dispense with the publica- tion of the banns, provided there be a sufficient rea- son; one such is indicated by the Council itself, i. e. fear of a malicious thwarting of the intended mar- riage. The vicar-general, vicar capitular, and ad- ministrator of a diocese may also dispense from the banns. In case the contracting parties belong to different dioceses, the permission of one bishop (usually the one in whose diocese the marriage takes place) is held sufficient by many canonists. In some countries, as in Bavaria, a mutual understanding to this effect exists. The bishop may also allow the deans or the parish priests to dispense from one or two publications. In many dioceses the parish priest is specially authorized to dispense from the banns for death-bed marriages; elsewhere this authority is delegated to the deans or the more centrally located parish priests. The parish priest may himself decide that the obligation of asking a dispensation no longer exists for him, i. e. in cases of urgent necessity when, on the one hand, he cannot reach the bishop and, on the other, the reasons are such that the latter would be bound to grant the dispensation. In all cases where the three publications are omitted, the contracting parties are regularly required to take the oath before the bishop {juramenlum de statu libero) that they are not previously betrothed or married, and that they know of no impediment to their marriage (Clement X, Cum Alias, 21 August, 1670; Ballerini-Palmieri, VI, 716-718).

By a decision of the Congregation of the Inquisi- tion (8 August, 1900) the bishop may delegate to the parish priest the performance of this duty. The banns are omitted in the case of revalidation of marriage (Sagmiiller, 489) and secret marriages i. e. regularly performed in the church, but behind closed doors, and the record of which, together with the pertinent baptisms, is kept in a special book in the diocesan chancery (Ballerini-Palmieri, op. cit., VI, 778). Dispensation from all the banns is regu- larly granted only for a very urgent reason; less weighty reasons suffice for a dispensation from two publications or from one. Among the reasons recog- nized by the law, other than that mentioned by the Council of Trent, are: notable ditTerence of age, or condition of life; peril of the good name of either party; the approach of Advent or Lent, when mar- riage cannot be solemnized; notable temporal or spiritual detriment: imminent departure of the bride- groom; etc. The diocesan chancery usually charges a fee to cover the clerical expenses, it being "forbidden to make any charge for the dispensation itself (S. <;0ng. of Propaganda to the bishops of Ireland, 12 Tebruary, 1821; cf. its decree of 1750; also the Encyclical of 1768 to the same bishops, and Col- lectanea S. Cong. Prop. Fid., Rome, 1893, 1221). At times the parish priest collects a fee for the publica- tion of banns (Von Scherer, 147); it is reckoned as one of his jura stolce, or casual sources of revenue.

VII. Non-Catholic Usage. — The Orthodox Greek Church does not require publication of the banns; on the other hand, for every marriage the Greek priest requires regularly a special permission of the

II.— 17


bishop; at Constantinople and in other archiepis- copal churches this permission is granted through the Chartophylax. As the presence of the priest is essential to the validity of a Greek marriage, clandestine unions are practically impossible. (For the Uniat Greeks in Italy the fridentine decree is obligatory, having been published in Greek in all their parishes by order of Clement VIII and again by order of Benedict XIV; see Vering, 873). The Ger- man Lutheran churches provide for publication of the banns in a manner quite similar to the Catholic discipline (ibid., 874). In the Church of England the publication of the banns is a normal preliminary of marriage, both by ecclesiastical law and, as ex- plained below, by civil statute. The Book of Common Praj-er directs that the banns of all who are to be married shall be published on three several Sundays or Holy Days during the time of the morning service or of evening service (if there be no morning service) inmiediately after the second lesson. The form of publication is analogous to Catholic usage, and if the parties reside in different parishes, the banns must be published in both.

VIII. The Civil Law of Banns. — In several European countries the civil law insists by its own authority on the publication of banns; in Austria, for instance, all marriages performed without at least one publication of the banns, and in the parishes of both contracting parties, are declared invalid by the Civil Code (Vering, 862, note 23; Von Scherer, 161). In England, until 1753, there was no statutory publication of the banns; in that year was passed a marriage act, known as Lord Hardwicke's Act (26 Geo. II, c. xxxiii), which provided, among other es- sentials, that in the future the true names of all persons intending marriage should be published in the church, otherwise the marriage would be null and void. It w-as, however, expressly provided that the act should not apply across the seas; hence it never became a part of the English Common Law as re- ceived in the United States. The actual civil legis- lation in England dates mostly from the reign of George IV and WiUian IV, and relieves Catholics and Dissenters from the obligation of having their banns published in the churches of the Establishment, as was the case after the passing of Lord Hardwicke's Act, though in other respects, and with considerable modifications, that act still governs the marriage contract in England; in substance it is the Tridentine decree. According to actual English statute legis- lation, a marriage in the Church of England is in- valid without a previous due publication of the banns or a license from the proper ecclesiastical authority granted only within the church of the parish in which one of the parties shall have resided for fifteen days before the marriage. The true names of the parties must be published in an audible voice on three suc- cessive Sundays at the morning service after the second lesson, in the church of the parish in which the parties dwell, or with the bishop's consent, in a public chapel. The officiating clergyman is entitled to demand seven days' notice of uie intended pub- lication, with the names of the parties, place of abode, and the time they have lived there. The dissent of parents or guardians renders null and void the publication of the banns of minors. The banns or license are valid for a period of three months only. It is to be noted that the omission of the banns invalidates the marriage only when the omission is kno'mi and wilful. Non-Anglicans (Jews and Quakers excepted, as otherwise provided for) are freed from the obligations of banns or ecclesiastical license, but they must give notice to the registrar of the district within which the parties have lived for seven days previous. This notice is inscribed in a marriage notice book open to public inspection at all seasonable times, and thereafter suspended for