Catholic Encyclopedia (1913)/Banns of Marriage

(Lat. bannum, pl. 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 Usage; VIII. Civil Law.

I. HISTORY

From the beginning of Christian society the marriage of its members was looked on as a public religious act, subject to ecclesiastical control (Tertullian, "De monog.", c. xi; "De pudicitia", c. iv.). The obligation of making known to the bishop all proposed marriage dates as far back as the beginning of the second century (Ignat, ad Polyc., c.v.). and ceased only when, in the fifth and succeeding centuries, owning 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 parishoners (Capitula Caroli imp., ad. an. 802, ed. Borentius in Mon. Germ. Hist.: Leges, I, 98). The publication in the church of the names of persons intending marriage seems to have originated in France about the end of the twelfth century; it was already a custom of the Gallican 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 ecclesiastical law (c. 3, x, De clandest, desponsat., iv, 3). The Council of Trent confirmed this law, and specified to a certain extent the manner of its execution. It must be noted that by the council's own special act its marriage decree "Tametsi", with its provision for the banns (see CLANDESTINITY) 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 rest not on the Tridentine law, but on the earlier Lateran canon, also on local or particular ecclesiastical legislation and custom. (SEE MARRIAGE) In England the First Council of Westminster provided (xxii, 2) that the law of publishing in the church the banns of marriage must be observed, but made no provision for the manner or time of introducing the practice (Taunton). In the United Stated the Sixth Provincial of Baltimore recommended the bishops of the province to introduce the laws of the banns as laid down by the Councils of Lateran and Trent (juxta mentem concilli Lateranensis et Tridentini). The First Plenary Council of Baltimore (1852) decreed (no.88) that after Easter 1853 the banns should be published, and dispensation given for only very grave reasons. The Second Pleanry Council (1866) confirmed that above (nos. 331-333) and declared the law a very useful one and already received by custom (saluberrima disciplina jam usu recepta). According to Zitelli (Apparatus jurus eccl., 403) at least one publication 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 demanded no more than one publication. It is of some interest to note that by a decree of the Sacred Congregation of Inquisition (14 June, 1703) the French missionaries in Canada were obliged to publish the banns for their savage converts.

'''II. TRIDENTINE LEGISLATION'''

In order to check the increase of clandestine marriages, the Council of Trent decreed (Sess. XXIV, De ref. matr., c. i) that before the celebration of any marriage the names of the contracting parties should be announced publicly in the church during the solemninzation of Mass, by their own parish priest on three consecutive Holy Days (Waterworth, The Canons and Decrees of the Sacred and (Ecumenical Council of Trent, London, 1848, 196 ssq.). Such an publication, of course, can be made only at the request of the parties themselves, and after the parish priest is aware of their mutual free consent. Moreover, the parish priest cannot refuse to publish the banns excepted for reasons stated in the canon law. If the contracting parties refuse to consent to the publication of the banns, the parish priest cannot assist at their marriage, and where the Tridentine legislation does not obtain he is bound to warn them not to attempt marriage elsewhere. In course of time this Tridentine decree has given occasion to more specific interpretation, regularly and primarily applicable where the decree has been promulgated. Among the more important authentic decisions are the following: The proper (own) parish priest of persons intending marriage is he in whose parish both (or one of) the contracting parties have a true domicile or quasi-domicile, i.e. a fixed residence or one that can be legally constructed as such. When both parties permanently reside in the same parish no difficulty can arise as to the parish priest whose right and duty it is to publish the banns. But it may happen that one party resides, or that both parties have each more than one domicile or quasi-domicile, in which case the publication of the banns should occur. regularly speaking, in every parish where at the time of the marriage the parties retain such domicile or quasi-domicile. (SEE DOMICILE, PARISH PRIEST, MARRIAGE.) It may be noted here that while in general a quasi-domicile is acquired by actual residence in a place with the intention of remaining there the greater part of the year, in England and in the United States the law presumes a quasi-domicile from one's months residence of either party in the place of the marriage. (S. Congr. Inq. to the bishops of England and the United States, 7 June, 1867; see also its decree of 6 May, 1886). A decree of the same congregation (9 November, 1898) provides that anywhere a mere residence of six months shall constitute a quasi-domicile. In the case of unsettled persons possessed of no domicile (vagi) the banns are published (with episcopal permission) where the marriage takes place, and in the place or places of their birth. The banns of minors must also be published in the place of residence or their parents or guardians. The law of quasi-domicile is also frequently to servants, apprentices, soldiers and students in institutions of learning. In the case of mixed marriages, publications of the banns is forbidden (Greg. XVI to the bishops of Bavaria, 12 September, 1834) but is tolerated in the United States by a decree of the Congregation of the Propaganda (3 July, 1847), provided there be no mention of the religious persuasion (confessio acatholica) of the non-Catholic party (see also S. Congr. Inq., 4 July 1874, in Collectanea S. Congr. de Prop. Fide, Rome, 1893, no. 1223). In Germany and Austria this is also customary in some places (Heiner). The three consecutive Holy Days (dies festivi) may be Sundays or other feast of obligation. Custom has in many places exempted Christmas, Easter, and Pentecost. It is also customary in some places to proclaim the banns on suppressed feast days, also at Vespers, provided there be on such occasions a considerable attendance of people in the church (S. Congr. Inq., 25 October 1586; 29 April 1823). The banns are published regularly at the parish or principal Mass, though the publication may occur at any other Mass on the prescribed days, nor is it required that such publication be repeated at more than one Mass on the aforesaid days. By a rescript of the Congregation of Propaganda the Vicars Apostolic of India were permitted to publish the banns on weekdays. In some places it is provided that the banns shall not be published on two immediately consecutive feast days; similarly that the marriage shall not take place on the day of the last publication(particularly if it be the only one). It may be noted that the general ecclesiastical law does not forbid the marriage on the day of the third publication. The period for which the publication of the banns is valid depending in local ecclesiastical authority and custom. The Roman Ritual (Tit. vii, c. i, n. 11) fixes a limit of two months, but leaves the bishops free to act as prudence dictates. The Second Provincial Council of Quebec (1863) established a period of two months. In practice the period varies from six weeks to six months. It may be added that the marriage of members of royal houses (matrimonia principum) are by custom exempted from publication of the banns

'''III. MODE OF PUBLICATION'''

The parish priest or his representative (vicar, curate) announces in an audible voice, usually before or after the sermon, for each of the contracting parties the baptismal and family name, names of parents, place of birth or residence, age, condition, (single or previously married, and according to the Roman Ritual, loc. cit., n.13, the name of the woman's former husband). It also should be stated whether the actual proclamation is the first, second, or third, and whether there will be a dispensation from further publications. The priest adds that a serious obligation rests on everyone to reveal to him any known impediment to the proposed marriage. The parish priest is expected to keep a record or register of all publications of banns made by him, also the certificates of publications made at his request in other parishes, the fact and consequences of which he is entitled to know.

'''IV. DENUNCIATION OF IMPEDIMENTS'''

Whoever is morally certain either by his own knowledge or through reliable persons, of an impediment (e.g. consanguinity, affinity, previous marriage) to an intended marriage, is conscience bound to reveal it to the parish priest of the contacting parties; it then becomes the duty of such parish priest to investigate the statement made to him (usually under oath) and decide to the character of the evidence; if a grave suspicion be aroused in him, he must refer the case to the bishop, who decides whether a dispensation can or cannot be granted. Confessors, lawyers, physicians, midwives, are not bound to reveal impediments known to them through the discharge of their official or professional duties, nor does and obligation rest on those who fear that to make known and impediment would cause great detriment to themselves or their families, or who are aware that no good can result from their action, or know that the contracting parties have already made known the impediment. Once aware of the impediment the parish priest must defer the marriage, refer the matter to the bishop, and, where the Tridentine marriage decree is not valid he ought to warn the parties not to attempt marriage elsewhere. For further details as to the obligation or revealing known impediments, see the moral theologians generally, especially the third book of Sanchez, "De Matrimonio", and the sixth volume of Ballerini-Palmieri, "Theologia Moralis" (Prato, 1894) also the "Bibliotheca Prompta" of Ferraris, s.v.

V. SANCTIONS

Omission of the banns, even partial, makes a marriage illicit, but not invalid. The bishop may inflict on the contracting parties such ecclesiastical penance as he sees fit to impose, and he also may punish similarly the witnesses to the marriage. Should later on an impediment be discovered that renders the marriage null and void, they cannot hope, be 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 offending 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, e.d., 1679, p.271)

'''VI. DISPENSATION FROM BANNS'''

The Council of Trent allows the bishop to dispense with the publication of the banns, provided there be a sufficient reason; one such is indicated by the Council itself, i.e. fear of a malicious thwarting of the intended marriage. The vicar-general, vicar-capitular, and administrator 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 diocese the parish priest is especially 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 (juramentum de statu libero) 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 Inquisition (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 (Sägmüller, 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-Palmiere, op. cit., VI. 778). Dispensation from all the banns is regularly granted only for a very urgent reason; less weightily reasons suffice for a dispensation from two publications or from one. Among the reasons recognized by the law, other than that mentioned by the Council of Trent; are: notable difference of age, or condition of life; peril of the good name of either party; the approach of Advent or Lent, when marriage 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. Cong. of Propaganda to the bishops of Ireland, 12 February, 1821; cf. its decree of 1750; also the Encyclical of 1768 to the same bishops, and Collectanea S. Cong. prop. Fid., Rome, 1893. 1221). At times the parish priest collects a fee for the publication of banns (Von Scherer, 147); it is reckoned as one of his jura stolæ, 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 bishop; at Constantinople, and in other archiepiscopal 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 Eastern-Rite Catholics in Italy the Tridentine 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 German Lutheran churches provide for publication of 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 explained below, by civil statute. The Book of Common Prayer 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) immediately 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 contacting 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. xxxviii), which provided among other essentials, 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 was, however, expressly provided that the act should not apply across the seas; hence it never became a part of the English Common Law as received in the United States. The actual civil legislation in England dates mostly from the reign of George IV and William 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 legislation, a marriage in the Church of England is invalid 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 successive 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 day's notice of the intended publication, 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 invalidated the marriage only when the omission is known and willful. 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 seasonal times, and thereafter suspended for twenty-one days in some conspicuous place in the registrar's office and accompanied by a declaration as to absence of impediments, necessary consent of parents or guardians, etc. ("Encyclopedia of the Laws of England", London, 1897, II, 1-3; "American and English Encyclopedia of Law", 2d ed., 1901, XIX,1190-93; Phillimore, "Ecclesiastical Law of the Church of England", 2d ed., London, 1895, II 580 sqq. For the publication of banns in the (Protestant) churches of Ireland an Scotland see W.P. Eversley, "The Law of the Domestic Relations" (2d ed., London, 1890). In most of the United States a license to marry must be obtained by the contracting parties; in Delaware and Ohio publication of the banns is equivalent to a license (H.J. Desmond, The Church and the law, Chicago, 1898, 66). In all the provinces of the Dominion of Canada publication of the banns is required in default of a license to marry. In the Province of Quebec, in default of a license issued to non-Catholics, the publication of the banns is required on three Sundays or Holy Days with reasonable intervals, at morning service, or if none, at an evening service. If the parties belong to different churches, these publications must take place in each church. They must contain the names, surnames, qualities or occupation and domicile of the parties to be married, and whether they are of age or minors, also the names, surnames, occupations, and domicile of their fathers and mothers, and the name of the former husband or wife. A certificate of due publication of the banns is also required before the marriage, and mention is made of it in the Act of marriage; this certificate must be signed by the person who published the banns, and must contain all the above details stated in the banns themselves. Such certificate is not required if the banns were published by the same person who performed the marriage. Unless the parties have an actual domicile of six months in the place of publication, the latter must occur in the place of last domicile in Lower Canada, or if out of Canada the officer must ascertain that no legal impediment exists. if the parties are under the authority of others the publication must take place in the domicile of such authority (R.S. Weir, The Civil Code of Lower Canada, Montreal, 1898, Nos. 57, 58, 130-134). In France the civil code prescribes the publication on two distinct Sundays of the names, occupations, domiciles, and names of parents of persons intending to marry. The marriage cannot take place until three days after the second; if a year is allowed to elapse there must be a fresh publication of the banns. Marriages contacted abroad between French subjects or between a French subject and a foreigner, but according to foreign law, are recognized in France. The publication of the banns, however, cannot be omitted under pain of invalidating the marriage.

For the history of banns see ESMEIN, Le mariage en droit canonique (Paris, 18891). I, 78; SCHULTE, Handbuch des kath. Eherechts (1855), 40; BINDER, Vom kirchl, Aufgebot der Ehe (1857); SCHLINDLER, Die Notwendigkeit und die Umstande des Eheaufgebots (Warnsdorf, 1884); Archiv f. kath. Kirchenrecht. I, 129, 275; II, 546; IV, 391. All manuals of canon law and moral theology deal at more or less length with this subject, e.g. LAURENTIUS, Instit. Jur. Eccl. (Freiburg, 1903). Nos.567-569; HEINER, Grundriss des kath. Eherechts (4th ed., 1900):SAGMULLER, lehrb, des kan.Rechts (Freiburg, 1900 sq.) 485-490; VERING, Lehrbuch des kath. . . . Kirchenrechts (Freiburg, 1893), 859-863; VON SCHERER, handbuch des Kirchenrechts (Graz, 1898), II, 143-161. Cf. also FERRARIS, Prompta bibliotheca can., s.v.; FELIE, De impedimentis et dispensat. matr. (Louvain, 1874), 151-177; TAUNTON, The law of the Church (London and St. Louis; 1906), s.v.; BALLERINI-PALMIERE, Theologia Moralis (Prato, 1894)., VI. 427-447; GASPARRI, Tractatus canon, de matrimonio (2d ed., Rome,1892)

THOMAS J. SHAHAN