Приложение VIII

A. John the monk of Zonara on behalf of the bishops about the fact that two third cousins ​​should not marry the same 728 To those who are entrusted with power over the people, God says through the prophet: "If you do not announce and do not tell, and the lawless one dies in his lawlessness, then his blood will be required from your hand" (Eze. 3:18). What should those to whom it concerns understand from this divine legalization, i.e. leaders of the people? - The fact that it makes it necessary for them to be vigilant (over the people), carefully monitor the actions of everyone, preach God's law to them and, if they do not follow it, then persuade, teach and warn of lawlessness. If the leaders of the believers must necessarily do this and on their own initiative, then what should be said about what measures they should take when they are approached with questions on any matters? Of course, (in such cases they must) with all their might eliminate and hold back, through the interrogators, any inclination towards lawless deeds. The same should be the case in relation to the question that has arisen now, to which (spiritual leaders), I have no doubt, must answer what follows. The question is short and not complicated, but it causes a lot of words, due to the difference of opinion on it. Someone asked: can two first cousins, one after the other, marry the same woman? Some argue that marriage is not prohibited; others say that he cannot be allowed, but must be prohibited by that and another law, i.e. civil and church. It is necessary to analyze one and the other opinion. First, they say that the legislators in their decrees on prohibited marriages, calculating collateral relatives who should not marry each other, brought this calculation to the sixth degree, i.e. to third-cousin brothers (and sisters), but did not go further and did not prohibit marriage between further relatives. And since in the present case it is not the third cousin brother and sister who want to marry, but the other person, who was married to one of the third cousins, wants, after his death, to enter into marriage with the surviving one: then they recognize this marriage as unimpeded because, they say, we do not want to follow the rules, but what the law forbids, we also forbid; and what he did not consider forbidden, we also allow. This is one party's answer to the proposed question, and this is how their confusion is resolved. The other party, which recognizes and declares this marriage to be prohibited and illegal, supports its opinion with the following arguments: legislators in their decrees on illegal and prohibited marriages determine that marriage between ascendants and descendents is prohibited without limit; and from the collateral ones, they counted only a few persons, as if as an example of prohibited marriages (because it is impossible to embrace in the law all prohibited degrees of collateral kinship), and then added in general: "in marriages, we are looking not only for permitted, but also decent, worthy of respect and fair by nature." They mentioned third-cousin brothers (and sisters) not because they only proved the prohibition (of consanguineous marriages), but used this word as an example, and then added a more general one (prohibition). They do this in relation not only to collateral (legal) relatives, but also to physical (illegitimate) relatives. For, having said first about the relatives by adoption, they added the following: "a natural father does not take his daughter born of fornication." Then they generalized this law and added a general prohibition, saying: "marriages are observed to be just by nature and decent." Now who will say that since (legislators) mentioned only an illegitimate daughter, they thereby excluded granddaughters and further (illegitimate relatives)? So the apostolic (19th) rule says: "he who has two sisters or a niece in marriage cannot be in the clergy", but will he be a clergyman who marries her cousin or niece? Hardly anyone will say that. You see, opponent, that the prohibition (of marriages) did not stop at what was mentioned in the rule, but according to the requirements of decency and natural justice, it went further. We will find that for the sake of honor and decency (marriage), some persons who cannot be considered in any degree (kinship) are not allowed, however, to marry among themselves: for example, the law forbade the ex-husband of a stepdaughter to marry her stepmother, although here we cannot consider any degree. So, if it is decent and decent for two third cousins ​​to have sexual intercourse with the same (woman), then let it be allowed for a third cousin to marry a third cousin. If the latter are blood relatives who are forbidden to marry each other, then who will say that such close relatives can enter into a marriage union with one and the same woman? And what will he call this woman who took her in a second marriage? A daughter-in-law, like a brother's wife, or a wife, like a married woman? And where do we put the rule of Basil the Great in this case, which says: "where family names are mixed, there is an unlawful marriage" (rule 84)? Let's take, they say, other, stronger or, better to say, more true proofs. If according to the divine decree about those who copulate in the community of marriage: two will become one flesh, those who copulate are recognized as one flesh, then the one who copulates with the wife of his third cousin is entering into a carnal union with a person of his own kind and violates not only the divine law, which prescribes: do not approach anyone who is close to your flesh to reveal his shame (Lev. 18:6), but also a civil one, which is used by the opposing party for confirmation of his opinion, and according to which the prohibition of marriages in kinship is proven only to third cousins of a brother and sister. For if the wife's first husband was a third cousin of her current husband, and the wife was of one flesh with the deceased, then a clear and indisputable conclusion follows that the one who copulates with his third cousin's wife "approaches the neighbor of his flesh." If the cruel and uncircumcised Israelites, in relation to whom the ancient law was in many respects lenient due to their rudeness, were prescribed by this law: "Thou shalt not bring thy flesh to thy neighbor," then will anyone say that we are commanded no more than they? If it is forbidden for him to enter unhindered to any neighbor of his flesh, then who will think that we are allowed to take the wife of a third cousin, who was called our daughter-in-law and was, as a result of sexual intercourse, one flesh with him? For if, according to the law, even the betrothed are called by the names of son-in-law and daughter-in-law, then those for whom the betrothal has turned into marriage should be called so. Then isn't it ridiculous - on the one hand, to prohibit marriage with a father's or brother's wedding ring on the basis that the first takes the place of a stepmother, the second - a daughter-in-law, and on the other hand, they allow a third cousin (of a deceased husband) to marry a woman who was called a daughter-in-law in the proper sense, as she was married to a third cousin? Isn't it ridiculous that an adopted son, who has no natural kinship with the adoptive father, but only in a figurative sense, by virtue of the law, receives the name of son and, as a result of emancipation, becomes a stranger to him, as a person who is still not part of the natural kinship of the father (for the kinship by adoption is destroyed by means of emancipation), but is it ridiculous to forbid such a son, in the name of decency, to take the father's wife, as well as the adoptive father, who does not belong to the family of the adopted son, will not be allowed to take the wife of the latter, even after his release from his power; and with the one who joined our family through a third cousin, who is called to inherit after her husband, if there are no others (heirs), will they be allowed to marry without hindrance and consider this marriage legal? This is the answer to those who allow this marriage and say that the law prohibits marriage only up to the sixth degree (kinship). And since the law extends kinship along the lateral line and further, namely, it calls for the inheritance of some (relatives) of the seventh degree, saying: "kinship assistance embraces six degrees of kinship and two persons of the seventh degree, namely, the children of a third cousin brother and a third cousin sister" and the second law decrees: "in natural kinship we do not go beyond the seventh degree" and so on, then it would be blessed to say that a friend to the second, in the seventh degree, it is forbidden to enter into the communion of marriage among themselves, and that the bishops, having learned about those who wish to enter into such a marriage, must prevent them from doing so, and after the consummation of the marriage they will not separate, but subject them to penance, so that it would be possible to say that they (the bishops) decided this matter not so much according to the exact meaning (of the law), but according to condescension. It is completely indecent, not decent and contrary to natural justice, for an heir to enter into a marriage union with one who is (herself) called to legal inheritance by kinship, and to give birth to children from her who would have a dubious and uncertain name. For a man who married the daughter of his third cousin, what would he call the child born of her? Son or nephew? For if he begins to call him by birth from his loins, then he will call him son; if it is by birth of the daughter of a third cousin, then he will be called a fourth cousin. And if the wife has children from the previous marriage, and then others would be born from the second, then what kind of family name will they be called relative to each other? Are they siblings, like those born from the same mother, or quadruplets, like those born from two third cousins? If all her husband's relatives of the closest degrees had died, and there were others of the seventh degree, would she be called to inherit with them, as she is on the same degree as them, or would she be rejected, as a woman belonging to the second family? Because to noi goes both the one and the other. Do you see the absurdity and indecency of the matter? That is why legislators so often say that in marriages one should observe not only what is permitted, but also what is decent, just by nature and worthy of respect. So, it is not for nothing that they say that the bishops, not allowing marriages in the seventh degree (kinship) before their conclusion and not dissolving them after their conclusion, act not so much according to the exact meaning of the laws, but according to condescension. If this also happens due to condescension, then what can be said about a defect in the sixth degree? And that in the present case it is about the sixth degree, this is not subject to doubt: because if the third cousin is a relative of the sixth degree, and the woman who joined him became his flesh and the daughter-in-law of the surviving third cousin - a daughter-in-law in the proper sense of the word, and not in the figurative sense, like a brother's betrothed, then did not the law prohibit him from marrying her with great right? Let it be the end of the word here, not because it would be impossible to say anything more, but because there is no need for various explanations of the matter; for, say the opponents of those who allow such a lack, it is enough for a reasonable audience to show the indecency and indecency of the matter and save himself from the threat uttered by those who do not oppose the lawless and do not denounce lawlessness. We have our own impurities: there is no need to collect even more. B. The opinion of the Most Holy Patriarch of Antioch Fedor Valsamon on the question discussed in the Synod about whether it is possible for one and the same person to marry two third cousins? 729 The natural Athenians and the foreigners who lived among them spent their time in nothing more willingly, says the great Paul, than to tell and listen to something new (Acts 17:21). The Church of God, and especially its divine pinnacle - the most holy Great Church, containing the decree of the saints, the Father uproots every newly appeared excess, but at the same time wants the ear of truth to grow a hundredfold (on its soil): for by the grace of God, it continually succeeds in every word and deed pleasing to God. Therefore, the question that recently arose in the Synod about whether it is possible for one and the same person to marry two first cousins, she did not allow herself to leave in a dark corner, as it has the appearance of novelty and deserves attention, but proposed this question, as it is important and very useful, for a general discussion. Since her most holy husband and the most vigilant guardian of the canonical faithful 730 wanted to make us accomplices in this good cause, we declare that some, as they say, opened a wide and smooth road to Dimitria (for example), the former husband of Mary, married to her third cousin, named Feodora, and to the question: why and how do they allow this? they say that in this case it is a case of marriage in the seventh degree (property), since Dimitry and Maria, his deceased wife, are two persons and therefore two degrees, even though they were considered one flesh according to the marriage union and conjugal love. For, they say, Maria was in the sixth degree with Feodora, and not Dimitry, who is a separate, seventh person and the same degree. The 2nd provision of the 32nd chapter of the 5th title of the Royal Books and the 54th canon of the Holy and Ecumenical Council, gathered in Trulle of the Great Palace, limited the prohibition of marriages both by property and blood relationship only up to the sixth degree inclusively; 731 marriages in further degrees, according to the law and canon, can be committed freely. And although a synodal volume was recently published, approved by the royal decree (by which it was prescribed) that those who are in the seventh degree of blood kinship should not marry; 732 but he did not embarrass those who are in the same degree by property: for there is a great difference between kinship by blood and the simple rapprochement of two families by property, and the reason is great, but by which some (i.e. relatives of the 7th degree) are united by marriage, and others (blood relatives of the same degree) separate. Most of those who argue in this way confirm their words with syllogistic proofs and arguments aimed at leading the opposing opinion to absurd conclusions. If, they say, it will be assumed that Maria and Dimitry, after copulation, constitute one degree, then various absurdities will result from this, for example: Dimitry, who is called Maria's husband and her father's son-in-law, must, by the same degree (with his wife), be called his son, and her brother, and thus this marriage, which represents incest between a brother and a sister, must be dissolved. Adding to this absurdity is the fact that they (spouses) would have the right of legal inheritance to each other, parents and even relatives on both sides; at the same time, it would not be possible for a husband and wife to marry each other according to the laws of property: they would have to marry according to the laws of consanguinity, despite the fact that the exact opposite is accepted in civil custom and in church practice itself at the present time: because an uncle and a nephew are freely married to an aunt and a niece, although the 6th degree of property is represented here, and this is allowed because the volume of the most holy patriarch Sisinnia prohibited marriage only to cousins with two sisters (and not in other types of the sixth degree of property). They also insist that from the marriage of one and the same (person) with two third cousins, nothing indecent and causing a confusion of relative names occurs; for these names are observed and their mixing is avoided only when kinship is established through copulation with persons of a slave state, and not when from conjugal intercourse accepted by laws, as if from some root, corresponding offspring arise; for if it is allowed that even among these last ones we must observe the decency of related names and avoid mixing them, then also the marriage copulation of quadruplets, etc., is permitted (by law). of brothers (and sisters) should be made prohibited, so that the children born from them are not called native and fifth-generation brothers (and sisters), which, however, is not accepted (by law). Such are their arguments. And we will first see if it is in accordance with the laws and canons to consider spouses of two degrees, and is it possible on this basis to allow the marriage we are talking about? Let's repeat and understand what they say (opponents on this issue). The saying of the Lord, saying; and there will be two in one flesh, some refer not to the sameness (the degree of spouses), but to their love and unanimity: because, if the Lord's legalization is not understood in this way, then the couples should be called brothers (and sisters), and not spouses, and from this countless inconsistencies would flow, increasing the absurdity of the question. Let them hear (those who argue in this way) that false statements do not lead to the truth either by way of (direct) inferences, nor supported by absurd conclusions from the opposite, do not change the very nature of things, but the sun of truth rises from what is recognized (as truth) by everyone and does not lead anyone to false conclusions. If, for example, someone said: "every stone is animated" and, on the other hand: "every emerald is a stone" and from this he would draw the conclusion: "so every emerald is animated", then this would be a clear absurdity and an extreme lie. In the same way, if someone were to say that through sexual intercourse there is a fusion of substances, and the conjugal union turns into a brotherhood, and in this way he would assert this absurdity, then this conclusion could, perhaps, tie the tongue (of the opponent), but it would not contain the truth. And if this is so, if even after copulation (of the spouses) the difference between one and the other kind remains, then let no one dare, contrary to the word of God: "There will not be two spouses, but one," assert that the spouses are brothers. For just as a wild olive is not called a cultivated olive because its shoot has fused with the latter: so we do not call the maiden's father her father-in-law (πενθερόν). In view of these indisputable, as we think, and solid proofs, hardly anyone dares to openly assert that each of the surviving spouses is called to the inheritance after the deceased, or any of his relatives (for how is this possible when the heirs are already specified in advance by law?); it is unlikely that he will also condemn and reject the position that marriages in property and blood relationship are limited to the same and the same limits: because this is established by church canons. Allowing an uncle and a nephew to marry an aunt and a niece is not (as some say) the victory of an unwritten custom, or the triumph of an untransmitted (ancient) church practice, but this marriage was allowed, by virtue of the ancient supreme power belonging to the kings, by a decree of the honorable memory of Tsar Alexei Komnenos, issued on the report of a certain Varda, nicknamed Xir, and entered into the civil and church archives and codes (laws). So, church practice should not be criticized for excessive strictness, if it has always prohibited and now prohibits marriages by property up to the sixth degree inclusive, just as well as marriages by consanguinity, following (in this) legal and canonical prescriptions and the synodal volume of that most holy patriarch Kyr Sisynnia. For what was determined in the cancellation of this volume by the divine royal majesty, that just judge 733 did not allow himself to be brought into action, as the experts (in judicial practice) know, and they are not mistaken. Let it be so, say (adversaries); but Dimitry will not be prevented from marrying the third cousin of his former wife, and the fact that as a result of the existing degree (property) between them will cause (due to their lack) an indecent mixing of (relative) names: for this (mixing) is noticeable even in marriages between such blood relatives who are even in the eighth degree to each other: in these cases, we do not call those whom nature knows as spouses quadruped brothers (and sisters), and we call their children (kin) brothers (and sisters), although they are by nature five-bred. What is new, if it is said and required in the present case? But let those who make these comparisons hear from me (the following): as they tell and write in full detail about what is in the Gadeirs, and what is behind the Gadeirs is unlimited: 734 and marriages within the sixth degree are condemned by natural law and decency, and marriages in further degrees are neither dissolved nor allowed, except for the seventh degree of consanguinity, which the royal decree and the synodal volume was equated to the sixth degree. Since we have sufficiently detailed the arguments given by some in justification of whether or not spouses should be taken as one degree, we will now express our opinion on this matter. Legislators in their decrees on prohibited marriages divide relatives into two categories: ascending and descending, i.e. parents and children, and on the side, i.e. brothers and other blood relatives. Marriages between ascendants and descendents, whether their relationship is legal, illegitimate, or by adoption, are prohibited indefinitely, and between (lateral) blood relatives - up to the sixth degree (inclusive). Having explained the doctrine about this and clearly showed the extent of degrees and the difficulty of their definition ("finding degrees between collateral relatives is very difficult and inconvenient"), the legislators then added the following words: "there are other marriages, which are not allowed according to the law of kinship, but because of property; the property is the rapprochement of persons connected to us through marriages, apart from kinship." And what kind of degree (one to another) the spouses receive after copulation, the laws do not clearly say about it; they only add that no one can marry his daughter-in-law or stepdaughter, as well as stepmother or mother-in-law, because the latter take the place of mothers. So, first of all, we need to consider what the degrees of kinship are, because in this way it is possible to overcome all the difficulty of the question. The degrees of kinship got their name from the steps of the ladder. Just as these degrees, starting from any area and rising upwards, mediate ascent and descent, so the degrees (of kinship), originating as homogeneous branches from a (common) root - the first progenitor, adopt the order of kinship. Now let's see what root or (general) principle mediates between a husband and a wife, so that we, ascending to him and descending from him, as if by steps, could reach them (i.e., spouses). Absolutely none! Because no one can say: Peter gave birth to Dimitry, and he also gave birth to Maria (Dymitry's wife), so that they have a relationship of two degrees: this would be an obvious lie. Moreover, no one can say that two substances make up one degree: for they were produced by two births. So those who say that spouses are of the same or second degree and measure (the distance) between them by means of degrees, according to the example of what is weighed, or measured, or calculated, are likened to those who ask; how many (rocks) does the stone surround this floor? and answering: of two (breeds), because it (the floor) is lined with green stone and girded with a cedar tree. So, we have the right to say that spouses cannot be assigned to two degrees of kinship (for how would this be possible, if they do not have the same root and birth, and therefore physically do not divide into two degrees?), or take them as one degree, due to their carnal union, and mix them like honey with milk (for how is this possible, if the separation of substances remains whole?) In view of the divine and saving words of the Lord God and our Savior Jesus Christ, who is at the request of students; Is it permissible for a man to let his wife go? answered: "Have you not read that he who created man and woman in the beginning created them, and therefore a man will leave his father and mother and cleave to his wife, and the two will become one flesh (Gen. 2:24), so that they are no longer two, but one flesh" (Mt. 19:3-6), - in view of these words, we believe and confess that spouses due to marriage should be recognized as almost one unanimous a person represented in two substances. But it will be allowed to direct the flow of words in the other direction as well. The incomprehensible descent of the Only-begotten Son of God to us and the pledge of the salvation of the human race manifests its greatness and glory, as in many other sacraments, and no less so in the marriage liturgy. For when, after the temptation of the serpent and the transgression of God's commandment, sinful copulation penetrated the whole mass of people, and when other greater (lawlessness) joined this evil, it pleased the human-loving God to hasten the revival and restoration of (mankind). So, the Only-begotten Son of God, having become for us a man like us and fulfilled all the rest of the arrangement (of our salvation), so that we would receive the former bliss, blessed and married in Cana of Galilee and turned the water of estrangement (from God) into the wine of knowledge of God, certifying to that human race that women will no longer give birth to children in sickness and that those born from marital intercourse will not speak as before: "my mother conceived me in sins" (Ps. 50:5), but obeying the commandments of God, as the forefather obeyed them before the fall, they will be honored with the same honor and glory as the ancestors had before the hearing. For an honest marriage and an undefiled bed ( Hebrews 13:4 ) as a means of salvation. If this is so, and if the divinely inscribed tablets say: "Do not reveal your shame to your neighbor" (Lev. 17:6); even if the forefather from the second world would now say: "now even more my wife is bone of my bones and flesh of my flesh" (Genesis 2:22): then I dare not say that spouses are not one flesh, although I see them in two faces (I dare not then), lest they be subjected to a just condemnation along with those who reject written and unwritten traditions, pledges of the holy churches and our salvation. On the contrary, I recognize that they (spouses) should be considered one flesh and that the husband is bound by the same legal and canonical prescriptions regarding the marriage union that his wife is bound by, and vice versa. Therefore, Dimitry cannot marry Feodora, who is his third cousin due to his marriage with Maria. I also agree with the topic, which does not allow such a Dimitriev marriage due to the laws that say: "in marriages, one should look not only for what is permissible, but also for what is decent", and I think that it would be extremely indecent if the one whom the third cousin (of the deceased wife) called her son-in-law until now, became her husband. And since some, using the words of the synodal letter, issued on June 30, 12th of the indict to the Patriarchate of the Most Holy Kyr Theodosius, when we held the position of hartophylax and as the editor of this letter, wrote at the end of it: "since the betrothal with John, due to the immaturity of Irina, has been annulled as invalid, then Irina can properly marry a third cousin brother (John) Theodore, who is not a related person to her and is not related to her by ties and limits of property, since he is next to her in the sixth degree of property", - they want to make us silent by pointing out this contradiction: then we answer, first of all, that someone who at one time or another held the position of hartophylax, serves through the mouth of his patriarch, usually says and writes what he carries in his head, like in a rain cloud, himself supreme Therefore, we would not deserve either praise if we wrote something really good, or censure in the opposite case - if we wrote something stupid. Like Baruch, we wrote down what the weeping Jeremiah dictated, and like Aaron, we said what Moses preached. And what even then served to correct our meager understanding on this issue, we wrote in the interpretation of the 2nd chapter of the 13th title of the Nomocanon. Explaining this chapter, we said that real marriage is prohibited by royal decree, although it was not entered (in the code of laws) by chance, and that the church does not allow the conclusion of such a marriage. 735 To this we add that if we look at ancient synodal decisions (on matrimonial matters) and at the same church paintings (degrees of kinship and property), through which it is possible to sift the most insignificant gnat in the present question, then no one, who does not avert his eyes from the obvious, will not recognize them as having lost their force, especially since they are not directly canceled by the above-mentioned council document; and what is contained in this document, everyone will find that it is completely consistent with canonical and legal regulations. So, looking at the Leader and Fulfiller of the faith of our Lord and God Jesus Christ, I say once again that just as the great (apostle) Paul says: "The wife does not rule over her body, according to the husband, just as the husband does not rule over his body, according to the wife" (1 Cor. 7:4); and the divine and sacred canons and synodal decrees (τόμοι) do not favor to admit to the church rank someone who married after widowhood, recognizing such a bigamist, but they also allow the wife of a deceased priest to enter into a second marriage, of course, because of the identity of their bodies, as can be seen from the 31st and 32nd chapters of the first title of the third book of the Basilica, and from the 44th rule of St. Basil, who says at the end: "therefore, we do not allow the body of a deaconess, as a sanctified one, to be more in carnal use", 736 then I recognize it as completely canonical and legal for the church authority to prohibit one and the same (person) from marrying two third cousins, and vice versa; and if something happens secretly, they will definitely separate (combined) and make amends with penance. The original in Syntagma Volume IV. pp. 592–597. Original in Syntagma, vol. IV, pp. 656–564. Patriarch of Constantinople, of course. In the cited rule, the Trul Council prohibited marriage, actually, only between first cousins, and the marriage of two cousins ​​with two identical sisters, i.e. in the fourth degree of kinship and property; but the word ἐξαδέλφη used in the canonical rule to indicate blood kinship already in the 8th century was understood not only in the sense of a cousin, but also a third cousin, i.e. in the sense of indicating the 6th degree of kinship. Wed Zhishman, Eherecht d. orient. Church, s. 238. It is understood the synodal decree of Patriarch Luka Khrysoverga, issued on April 11, 1166. For the original, see Syntagma, vol. V, pp. 95–98. Of course, probably the judge of the imperial tribunal, who competed with the church court in solving issues of marriage law. Γαδείρα, the polytype of Gades, an ancient seaside city founded by the Phoenicians in Spain, behind the Pillars of Hercules, is the westernmost point of the world known to the ancients. Valsamon uses here a proverb based on the following words of Pindar: Γαδείρων τὸ πρὸς ζόφον οὐ περατόν (Nem. IV, 114), i.e. that to the west of Gadeir, there is no limit to it. By the deaconess, Valsamon understands here, as in his interpretation of the quoted rule of Basil the Great, the wife of a deceased deacon: "I think he says in this interpretation that on the basis of this rule wives of priests (i.e., priests in general) should justly be prohibited from entering into a second marriage." For priests' wives, having become one body and one priestly flesh, through copulation with a priest, and, therefore, no matter how consecrated, should not be defiled through remarriage." You may be interested in: