Abridgment of Ecclesiastical Laws, Treatise · Chapter 33
CHAP. XXXIII.
Of Banns.
1. Whence the probable derivation of that word, and what it ſignifies.
2. The manner and form of Publication of Banns according to the Provincial Conſtitutions.
3. By whom Licences for Diſpenſation of Banns may be granted according to the Canons; Alſo to whom, and under what Conditions or Cautions.
4. Requiſites or Preparatories in Law unto ſuch Licences.
5. A Caſe at Common Law, with the Reſolutions of the Court relating to Banns, with the power of the Eccleſiaſtical Juriſdiction therein.
(1.) BANNS (bannus vel bannum) if Ban in the Brittiſh Language ſignifies clamor, as Mr. Blount gives it in his Nomo-Lexicon, then we need ſeek no further for its Derivation: Bannos, Q. an non declinata voce à Graece. foreign omne, foreign innoteſcat. Mutatur enim facile foreign in foreign. For though the Word be frequently mentioned by the Feudiſts, and thence applied to other uſes, as to that which we here in this Kingdom call a Proclamation, whereby any thing is by Authority publickly Commanded, Permitted, or Forbidden, Vincen. de Franch. Deciſ. 521, & 360. yet in the Sence here meant and intended, it is not ſo properly a Proclamation as a Publication or a publick Notice-giving. And therefore by the word Banns, as we uſe it, is intended that publiſhing of Matrimonial Contracts in the Church tempore Divnorum, before Solemnization of Marriage, to the end, That if any have ought material to object againſt the intended Marriage ſignified by ſuch Publication, either in reſpect of Pre-contract or otherwiſe, they may ſeaſonably make their Exception againſt it, conſonant to the very Letter of the Canon Law, where Banna ſunt proclamationes Sponſi & Spanſae in Eccleſiis fieri ſolitae. c. 27. extr. de Sponſ. &c. ult. Qui Matrim. poſ. &c. ult. de clandeſt. Deſpon. vid. Gothof. ad Nov. Leon. 89. in med. ibi. Hottoman is very confident that there is both bannns and bannum, and that they ſignifie Two diſtinct things, and neither of them to our purpoſe; for according to his expoſition, the one ſhould ſignifie an Edict what day their Vaſſals or Slaves furniſh'd with Horſe and ſhall encounter one another; the other a Sanction or Decree, that is, a Mulct or Fine impoſed on him that does not obey the Edict. Hottom. in verb. Bannus. De verbis Feudalibus.
(2.) In the Provincial Conſtitutions Banna are publick Proclamations or Denuntiations; Lind. Provin. Conſtit. de cland. Deſpon. c. 1. gloſ. verb. Bannorum. Others deſcribe them to be Edicta publice propoſita; Petr. de Anchor. in cap. cum in tua Ext. de Sponſal. By the ſaid Provincial Conſtitutions the Banns ought to be Solemn Publications, that is, they ought to be thrice publiſhed in the Parochial Churches where the contracting Parties and their Parents dwell, on 3 Sabbath days or 3 Feſtival daies (allowing ſome interval of time between each) at the time of Divine Service, when moſt of the Pariſhioners are aſſembled together, by the Parſons of the ſaid Pariſhes reſpectively, or others in holy Orders, at ſuch times and ſeaſons wherein Solemnization of Marriage is not Canonically prohibited, gloſ. verb. Bannorum, ubi ſupra. Yet where three Feſtivals immediately ſucceed each other, ſuch Publication in them made holds good in Law; Prov. Conſt. de Sponſ. gloſ. in verb. a ſe diſtantibus: As alſo ſhall the Marriage it ſelf, when once ſolemnized, albeit ſuch Publication of Banns, as aforeſaid, did not precede the ſame. gl. in v. Solen. Edit. de cland Deſpon. ubi ſupra.
(3.) But by the Eccleſiaſtical Canons now in force, it is Ordained iCan. 101, 102, 103, 104.That no Licence for the Solemnization of Marriage ſhall be granted, without thrice open Publication of the Banns, according to the Book of Common Prayer, by any Perſon exerciſing any Eccleſiaſtical Jurisdiction, or claiming any Priviledges in the right of their Churches; but ſhall be granted only by ſuch as have Epiſcopal Authority, or the Commiſſary for Faculties, Vicars General of the Archbiſhops and Biſhops ſede plena, or ſede vacante, the Gardian of the Spiritualties, or Ordinaries exerciſing of right Epiſcopal Jurisdiction in their ſeveral Jurisdictions reſpectively, and unto ſuch Perſons only as be of good State and Quality, and that upon good caution and ſecurity; which ſhall contain theſe four Conditions. (1) That therein is not any Impediment or Precontract, Conſanguinity, Affinity, or other lawful Cauſe to hinder the ſaid Marriage. (2) That there is not any Suit depending in any Court before any Eccleſiaſtical Judge, touching any Contract or Marriage of either of the ſaid Parties with any other. (3) That they have the conſent of their Parents or Guardians. (4) That they ſhall celebrate the ſaid Marriage publickly in the Pariſh-Church or Chappel where one of them dwells, and that between the hours of 8 and 12 in the Forenoon. Paſch. 8. Car. B. R. caſe Matingley verſ. Martyn. It was reſolved, that if any Marry without the Proclamation of Banns, or Licence to diſpence therewith, they are citable for the ſame in the Eccleſiaſtical Court, and no Prohibition lies in the caſe. Jones Rep.
(4.) Before any ſuch Licence (as aforeſaid) can be granted, it muſt appear to the Judge by the Oaths of two ſufficient witneſſes, that the Conſent of the Parents or Guardians is thereunto obtained; and one of the Parties muſt perſonally ſwear, that he beleives there is no Lett or Impediment of Precontract, Kindred, or Alliance, or of any other lawful Cauſe whatſoever, nor any Suit commenced in any Eccleſiaſtical Court, to hinder the ſaid Marriage according to the Tenor of the ſaid Licence; But in caſe the Parties be in Widowhood, then the Clauſe relating to the Parents Conſent may be omitted; the penalty for offending in the Premiſſes is ſix months ſuſpenſion ab executione Officii in any Commiſſary for Faculties Vicars General or other the ſaid Ordinaries, together with a vacating of every ſuch Licence or Diſpenſation, and ſubjecting the Parties marrying to the puniſhments appointed for clandeſtine Marriages. The Syntagmatiſt tels us, that there is a Canon extant, made by John Metropolitan of Muſcovy, who is held as a Prophet in Ruſſia to this day, that Matrimonium non niſi publice in Eccleſiis contrahatur. Petrus Gregor. Tholoſ.kSynt. jur. l. 9. c. 5. n. 10.
(5) In the caſe of Matingly againſt Martyn it was reſolved (1) That the Cognuzance of all fornications, Adulteries, and ſuſpected living in Adultery doth appertain to the Eccleſiaſtical Court,Paſc. 8. Car. B. R. Matinley verſ. Martyn. Jones Rep. (2) That if any marry without proclamation of the Banns, & without a Licence to diſpence therewith, they are citable in the Eccleſiaſtical Court for the ſame, and no Prohibition lies in that caſe (as aforeſaid.) (3) That if any Licences to marry without Banns be granted by the Ordinary of the Dioceſs, or by Commiſſaries or Officials in their Jurisdictions, or by the Archbiſhop in his Province before the Stat. of 25. H. 8. The Cognuzance of the ſufficiency of ſuch Licence, of the form of the Diſpenſation, and of the Conditions and Proviſoes of ſuch Licence, and whether ſufficient Notice thereof were given or not, are examinable only in the Eccleſiaſtical Court; and when the Licence is ſufficient, and the Proviſoes well and duly obſerved, and Notice thereof, and This be refuſed or rejected in the Eccleſiaſtical Court, yet no Prohibition lies, but the Party grieved muſt have his Remedy by way of Appeal, and not otherwiſe. (4) That where power is given by Act of Parliament to the Archbiſhop to grant Licence either de novo or in Confirmation of his Authority, yet the form of the Diſpenſation, and the obſervation of the Proviſoes and Conditions thereof, and whether ſufficient Notice were given or not, are examinable in the Eccleſiaſtical Court; and if they there adjudg in that caſe irregularly, no Prohibition lies, but the Remedy is only by way of Appeal: But if it come into queſtion in the Eccleſiaſtical Court, whether the words of the Act of 25. H. 8. do give ſufficient power to the Archbiſhop to grant a Licence, there if the Eccleſiaſtical Court doth judge againſt the power, a Prohibition lies, and not otherwiſe; but if they allow the Licence in point of power, and only inſiſt upon the Form, and Notice, and other Circumſtances, in ſuch caſe a Prohibition doth not lie: For though a power to grant Licences be by Act of Parliament, which is a Temporal thing, yet the Licence it ſelf remains an Eccleſiaſtical thing, and the examination of all theſe things (ſaving the Power) remains to the Eccleſiaſtical Court as it was before.