Legal and canonical significance of the religious element in a schismatic marriage

(Regarding the article by Prof. I. Berdnikov: Note on a schismatic marriage. Orthodox. Interlocutor 1895 October). In marriage we seek not only what is commanded, but also what is good (Kormch. book, chapter 48, line 7, 16). In our time, of course, there is no need to clarify that one of the tasks of jurisprudence, or the science of law, is the logical analysis of current legislation, the clarification and definition of its legal matter in order to bring it under general logical schemes or concepts by the generalizing activity of the mind. The profound importance of this scientific activity is generally recognized and even officially assigned to legal educational institutions. Free literature is also involved in this matter. In the bulk of current legislation, in the light of this activity, the following questions are resolved, for example: how does the new law relate to the previous ones? Does it cancel them, or only complement them, or along with them does it establish something completely new? If the latter turns out to be the case, then the lawyer still has further work to do - to resolve the issues of whether the introduction of this elementary new law into the existing law entails any disharmony, or whether it requires any other new legislation to ensure a beneficial effect on the life of this newly established law. Nothing more than an attempt to illuminate the meaning of the law of 1874 April 19. in the system of our law, mainly church law, we set our task in the article: What is a schismatic marriage? (Theologian. Vestn. 1895, February–March). The meaning of this law was revealed by us in the following provisions. Before the publication of this law, schismatic submarital unions were considered by our civil legislation as fornication: persons in these unions or relationships were not considered husband or wife; children born from such relationships were not considered legitimate. Law 19 Apr. In 1874, a civil police act was established to legitimize schismatic premarital cohabitation. The legal significance of this act is that through it, every conjugal cohabitation of a schismatic couple - regardless of which sect this couple belongs to, whether the marriage is recognized as a holy, honest and indissoluble union - acquired from the moment of this act the rights of a legal marriage in the civil sense, or more simply passed from an illegal relationship to a legal one - to a civil marriage. In addition, as within the meaning of the law of April 19. 1874, and according to the strength of the decision of the cassation. dept. Govt. Senate in the case of A. Parfenov’s bigamy, a civil schismatic marriage also has the property of indissolubility on an equal basis with a church marriage, so that, for example, such a common-law spouse, who during the lifetime of his wife entered into another marriage, even a church one, becomes guilty of bigamy and is subject to the punishment established for it. This is the first half of our article, which gives an answer to the question - what is a schismatic marriage established by the law of 1874 from a civil point of view? It is, we answered, a legal marriage, but not a church marriage, but a civil one. The second half of our article is devoted to resolving the question: what is this legalized schismatic marriage from a church point of view? What is his moral worth? In resolving this issue, we were guided by the following considerations: 1) The solution to the question of the moral dignity of a schismatic marriage should be based on canonical sources and on modern church practice. 2) When one of the spouses who are in a civil-legal (based on the law of 1874) marriage turns to the Orthodox Church, then there can be no talk of any method of church consecration of this civil marriage: for the other spouse still remains in schism. 3) When both schismatics - spouses who are married, recorded in the police register, join the Orthodox Church, then the question of the method of consecrating their marriage can not be decided in the same way, namely: in 1st or: a) according to the strict accuracy of canon law, or b) leniently. Reasoning strictly canonically, every schismatic marriage, as not having church sanctification, must receive it through a full church wedding. But canon law and modern church practice also allow for a lenient attitude towards the weak conscience of converts. In this case, the following diversity in the way the church operates is acceptable: 1) Marriages of schismatics, married according to the ancient Orthodox rite in schismatic chapels, can be left in full force without any sacred rite being performed on them. 2) Marriages of Bespopovites, regardless of whether they are entered or not entered into the police register, must be married either in full rank (marriages of Fedoseevites) or in some abbreviated manner (marriages of Pomeranians) - crowning. 3) If both spouses who turn to the church from the non-criminal sense do not want to sanctify their marriage, recorded in the registry of the police, then the church should treat their marriage only as cohabitation tolerated by civil law and in no way honor the husband in such cohabitation with any sacred degree. This is the general outline of our article, or the theses considered in it. They were the result of a rather careful and intensive analysis of the text of the law in question, opinions expressed in court speeches regarding the Parfenov trial and competent interpretations of this law, already published in the press. Without claiming the scientific thoroughness of the argumentation of these theses (for we were not writing a scientific dissertation, but only a journal article), we nevertheless considered ourselves entitled to attribute to them clarity, accuracy and strict logical consistency and on this basis consoled ourselves with the hope that our article would bring some benefit to our readers and perhaps attract the favorable attention of even persons competent in solving legal issues. To our delight, this last hope also came true. Prof. Kaz. Spirit. Academies and Kazan. University I. S. Berdnikov devoted his article to the analysis of our article, no less in volume than ours, although under a very modest title: A note on a schismatic marriage. The venerable professor was very attentive to our article; he follows the flow of our thoughts almost step by step and expresses his comments and judgments. We consider it our pleasant duty to express our deep gratitude to him for such flattering attention. But we are even more grateful that, having taken advantage of our article, the venerable professor took upon himself no little work to very strenuously argue his views on this issue, although they disagree with our views. In matters of law, truth and the clarity of its expression should be in the foreground: for these are matters of life, not theory, especially in matters of church law. Therefore, when exchanging opinions on these issues, the personal relationships and positions of opponents in the various vicissitudes of their polemics are not so important and interesting as the opinions themselves defended by them. In the name of this scientific interest, the question that interests us, we must first of all say that Mr. Berdnikov’s article loses a lot due to the fact that it is polemical: the author set out to defeat his opponent... and - without a doubt - he defeated, but having defeated us personally, he almost did not touch our theses and, being carried away by the offensive, did not provide himself with a retreat. The polemical form of Mr. Berdnikov’s article loses a lot because it lacks logical coherence: it is impossible to decompose it into theses, as we decomposed our article; it is also impossible to convey its content briefly and coherently: for it has no plan. In view of this, we are forced from the article to extract and group military shells against ourselves and then reflect them. We are taking on this is not an easy task. The most powerful attack on the part of Mr. Berdnikov was made on the position we defend, that schismatic marriage, established by law on April 19. 1874 is a purely civil marriage, not a church marriage, not a religious one. Despite us, Mr. Berdnikov is trying to convince readers that a schismatic marriage is something more important than a civil marriage, that it is a religious marriage. Before we begin to consider Mr. Berdnikov’s argument, we consider it necessary to point out that the idea about the civil nature of the form of schismatic marriage established by the law of 1874 is not our idea at all: it was previously expressed by such authoritative jurists as K. P. Pobedonostsev, Professor N. S. Suvorov and, unexpectedly, I. S. Berdnikov. As for the view of K.P. Pobedonostsev, we have already outlined it in our previous article, therefore we will not repeat it here. Professor N.S. Suvorov, in a course on church law, spoke as follows: “The form of marriage introduced by law on April 19. 1874 for schismatics there is the same institution that in the West is called civil marriage, but with the difference from this latter, that the Western European way of concluding a civil marriage consists in observing a certain ceremoniality: in the declaration by the Nupturiants of mutual consent, in questions of a government official and in answers to them from the bride and groom, in reading documents and laws related to marriage, in the proclamation by the spouses in the name of law, and finally the marriage is registered, i.e., entered into the marriage registry or in the parish register; The Russian method of concluding a civil marriage, introduced for schismatics, is limited only and exclusively to registration. Law 19 Apr. 1874, in its literal sense, was issued only for schismatics, but consistency requires that it be extended to all those dissidents who do not belong either to the established church or to any of the denominations recognized in the state, and therefore cannot enter into a legal marriage in a religious form, either in the Orthodox Church, to which they do not belong, or in their sect, which has not been officially recognized by the state as a special denomination with the officially recognized clergy and with their metric books" 1 . Professor Berdnikov, in his assembly speech delivered at the ceremonial meeting of Kazan University in 1887, spoke as follows: “The law on the metric registration of schismatic marriages is our experience of using civil marriage, caused by the real need of life. As a remarkable feature of this law, in comparison with the regulations on civil marriage of Western European states, we can point out that our state does not directly interfere with the rite of marriage, does not assume the right to directly and clearly declare those entering the registry register as spouses, but only certifies that the marriage has been concluded, enters it into its document and thereby gives it legal force. And here, in the law on schismatic marriage, our government, to its credit, still has not directly rejected, at least for a certain part of the population, the general principle in force in our legislation that marriages must be performed according to religious rites 2 . At the end of the same speech, Prof. I. Berdnikov speaks out even more decisively on this issue: “Only our dissident schismatics do not fit under the general law on the religious form of marriage - we read here. Recently, they have been given the opportunity to enter into legal marriages under the supervision and participation of the police. This is a kind of experience of applying the civil form of marriage to the life of our people, caused by a real vital need. This rule can guide our sovereign in relation to other dissidents who do not have a strong organization of a religious community recognized by the state. And it is inclined to be guided by it, as shown by the law of May 27, 1879, granting local civil authorities to keep metric records of Baptist marriages” 3 . As can be seen from here, we did not say anything new when we argued in our article that the schismatic marriage established by the law of 1874 is a purely civil marriage. This view has long been expressed and - by the way - Prof. Berdnikov. From this it follows that, attacking and defeating us this year, Prof. Berdnikov first of all attacked and defeated himself. Due to what reasons, or more precisely on what basis, prof. Did Berdnikov renounce his opinion, solemnly expressed in an assembly speech in 1887? The resolution of this question is apparently given by his very article, now under consideration, namely: Prof. Berdnikov was too carried away by G. Koni’s wonderful speech. On page 201. G. Berdnikov says the following: “Chief Prosecutor of the Cassation Department of Rights. Senate, Mr. Koni, in his speech, recalls the motives that guided the legislator in drafting this article, motives that perfectly clarify its meaning. During the discussion of the draft law on April 19. 1874 - says Mr. Koni - it was expressed that the establishment of an exclusively civil marriage would not correspond to the spirit of our legislation, which has always recognized the marriage union as a union primarily spiritual, extending the force of this fundamental rule to all subjects of the empire in general. Therefore, if the rites of schismatics cannot be assigned the same significance with the rites of not only the Orthodox Church, but also of other religions recognized in the state, and therefore it is necessary to require, in order to legitimize schismatic marriages, the observance of a special formality, in the form of a civil act; then, due to very important moral respects, it cannot be considered desirable that schismatics limit themselves when entering into marriage to performing only the said formality without any spiritual rite and thus reduce their marriage to the meaning of a simple contract, requiring only a report to the police, etc.” Having cited these words, Prof. Berdnikov expressed the following on his own behalf: “We will see further that our civil law has always recognized the significance of schismatic marriage rites to a greater or lesser extent. Naturally, he adhered to the same point of view when publishing the law on April 19. 1874. This view is all the more natural (?) after the law of May 3, 1883, when the schismatics ceased to be before the civil law only “a branch of the dominant religion, albeit damaged,” when they (with the exception of some extreme sects) acquired freedom of religious opinion and worship not only in homes, but also in chapels, and at the graves of the dead, and thus acquired significance, if not a public corporation (?), which are all the recognized religions in Russia, then at least corporations of a private nature (Statute on the Pred. and Prevent. Prest. 1890, Art. 45–64). Thus, a schismatic marriage entered into the register of births according to the rules of the law of April 19. 1874 is “not a purely or unconditionally civil marriage,” but with a significant admixture of religious and everyday elements. It is a marriage concluded in an everyday sense (?) through well-known religious rites observed by one or another schismatic sect and legitimized in civil terms by entering it into a registry specially established for this purpose” 4 . If we now compare the views of Prof. Berdnikov on schismatic marriage, expressed by him in 1887 with his own views, expressed in 1895 under the influence of Mr. Koni’s speech, we get the following parallel: And if, for greater clarity, we express these two views in a parallel mathematical formula, we get the following: Just as correct mathematical thinking asserts that 2 x 2 always gives the product of 4 exactly, therefore it cannot even be said that 4 - or 4 +, despite changes in places and times, so correct legal thinking distinguishes between two forms of marriage: religious and civil, both without any admixture, at least in the “everyday sense” they were actually combined with different admixtures - with a kind of pluses and minuses. So, for example, for Orthodox subjects of the Russian state, only the church form of marriage has legal significance: in folk Orthodox life, the church rite of marriage is furnished with various preceding and subsequent everyday rituals. Our civil law, however, does not attach any legal significance to these everyday rituals, although it does not prohibit them at all. According to the logic of Prof. Berdnikova concludes that our church marriage “is not purely and unconditionally church, but with an admixture of everyday elements. But who would agree with such logic?! And vice versa, “to the honor of our government,” we do not have a single civil public place in which an Orthodox icon is not in a place of honor, and the plaintiff and defendant in purely civil cases are by no means prohibited, upon entering the court, from expressing religious respect for this Orthodox shrine; many of our purely civil acts are preceded by an oath taken in court by an Orthodox priest; Further, our laws do not at all prohibit introducing religious elements into some documents of a purely civil nature (for example, a spiritual will): so what? Does it follow from this that we do not have purely civil institutions and documents, but that there are not purely civil ones, but with some admixture? To assert this means to assert something unheard of and strange. Regarding the form of schismatic marriage according to the law of 1874, it should be said that it is primarily civil. In fact, imagine, for example, the following experience of using it in the volost government: a group of schismatics enter the volost government with a demand to “certify the marriage according to the law of 1874” (or, more precisely, to legitimize the actually existing conjugal cohabitation of such and such a couple); in the volost government there is, of course, an Orthodox icon; the schismatics who entered will not pay any attention to it, and if the foreman or clerk, starting to perform the civil act required by the schismatics, makes, according to Russian custom, the sign of the cross with an Orthodox finger, then you can guarantee that the schismatics present at the same time will be extremely indignant for this religious admixture in a purely civil act. Yes, “in a schismatic - in the apt expression of K.P. Pobedonostsev – the quality of a citizen in relation to the state is completely and completely disconnected from the quality of a member of a well-known church: in the face of the state, a schismatic appears to be a citizen only in those features that do not concern the church” 5. In view of such a sharp, fanatical religious and everyday isolation of schismatics, in order to regulate their marriage-like cohabitations and to grant civil rights to children born from such cohabitations, our government in 1874 undertook “the experience of applying the civil form of marriage to the life of our people” (Words of Prof. Berdnikov, 1887). The characteristic features of this Russian form of civil marriage for schismatics are depicted in the course of church law by Prof. Berdnikov in 1888 as follows: “The metric registration of a marriage serves as the basis for its legal force... The execution of marriage rituals observed between schismatics that preceded the registration of marriage is not subject to the supervision of police officials who maintain metric records.” A schismatic marriage entered into the registry is required to be concluded in compliance with all the conditions specified in the code of civil laws in Art. 3, 4, 5, 12, 20, 21 and 23, namely, that it be concluded at legal age, of sound mind, with the mutual consent of the bride and groom, etc. “The procedure for recording a marriage in the metric book is as follows. A schismatic who wishes to have his marriage recorded in the registry must notify the police or volost administration in writing or verbally, depending on his place of residence, indicating the name, title and condition of both spouses. The police or rural municipality department draws up an announcement regarding such notification and displays it for seven days in a visible place at the doors of the department. This is done with the aim that everyone who knows about the obstacles to recording an announced marriage in the registry register will let the police or volost authorities know about it in writing or in words. Regardless of the display of the announcement, the police or township department enters a statement of desire to record the marriage in the book designated for this purpose; there he also writes down a written or verbal statement about obstacles to recording the declared marriage in the registry register. Obviously, this announcement of a marriage, supposed to be entered into the register of births in order to cause statements about obstacles to that, if they were found, corresponds to the so-called search (and announcement - should we add, apparently?) carried out during Orthodox marriages, and the book for recording these announcements and statements is a search book). “Partrical registers about the marriage of schismatics are kept in cities and counties by local police departments, and in the capitals by local police officers and private bailiffs. They (i.e., books) are prepared by provincial boards, and in St. Petersburg and other city administrations by the departments of city governors.” “Cases on the dissolution of schismatic marriages and their recognition as invalid, as well as on the rights arising from marriages, are subject to civil court. They are carried out in district courts according to the general rules of civil procedure” 6. These are the features of the Russian form of civil marriage! If we now pose the question: does this form attach any legal significance to religious rites during marriage, then we will have to answer: no 7! “The basis for the legal validity of marriage here is metric registration; the execution of marriage rites observed between schismatics is not subject to the jurisdiction of police officials.” To whom is it subject? - No one. To further clarify the purely civil nature of this form of marriage, introduced in our country as an exception only for schismatics and since 1879 for Baptists, let us present the characteristic features of a church or religious marriage, let us present at the same rate c. rights prof. Berdnikova. On page 130 of this course we read: “Russian law, which provides great participation in marriage matters to the Orthodox Church, consistently introducing the beginning of a religious form of marriage in relation to non-believers living in Russia. Our law permits persons of all Christian denominations to marry each other according to the rules and rites of their churches, without requiring special permission from the civil government. Marriages of persons of Christian denomination must be performed by the clergy of the church to which those entering into marriage belong. Likewise, non-Christian tribes and peoples are allowed to marry according to the rules of their law or according to accepted customs, without the participation of the civil authorities or the Christian spiritual government. The marriage of people of other faiths of confessions tolerated in Russia, not excluding Mohammedans, Jews and pagans, is recognized as legal when it is performed according to the rules and rituals of their faith. And the registration of marriages of other faiths is assigned by our law to the clergy of one or another religion according to their affiliation, just as this is done by Orthodox priests 8. These are the characteristic features of the religious form of marriage. Does it give legal significance to religious rites in marriage? – We answer: it is given complete and decisive. Who owns the performance of these religious rituals and registration of marriages? The clergy, and not the police or civil officials. After this, it seems that there can be no hesitation in resolving the question: to which form of marriage - religious or civil - does the schismatic marriage established by the law of 1874 belong? - Of course - to the civilian one. In order to fully and comprehensively understand the essence of the matter, in order to eliminate any misunderstandings and omissions, one more question should be raised and tried to be resolved, namely the following: how should one look at that civil act that, according to the law of 1874, police and volost officials are obliged to carry out - and which in the law is simply called the entry of a marriage in the registry? As the reader may have noticed, there is some difference in the above opinions of the two law professors (i.e. N. S. Suvorov and I. S. Berdnikov) on this subject. Prof. Suvorov says that this act is only the registration of marriage; prof. Berdnikov sees not only registration, but also certification of the event of marriage, and in his course on church law he directly equates this act to a search carried out by the church clergy. We are leaning more towards Prof. Berdnikov, but not entirely: in our opinion, it is not enough to call this act not only registration, but also a certificate of marriage. In our article (What is a schismatic marriage) we equated this act with the legitimation (legitimation) of illegitimate children. We developed there the idea that by this act the schismatic conjugal cohabitation is transformed into a legal marriage in civil terms; that is, hitherto illegitimate cohabitants acquire by this act the civil rights of husband and wife, and their illegitimate children (if any) acquire all the rights of legitimate children. But there we expressed this opinion with some hesitation; now, having carefully weighed everything that Prof. wrote against us on this matter. Berdnikov, we are fully convinced of the correctness of our opinion and would like to listen to the voice of our civil law specialists about it. Having thus defined the legal nature of the civil act established by the law of 1874 on April 19, we can now easily understand those properties in which the form of our civil marriage differs from its Western European form. According to Western European legislation, the form of civil marriage strictly adheres to the nature of the civil contract of the nupturiants or spouses, and the beginning of a civil marriage is based on the act of completing this marriage contract. The counterparties (bride and groom) appear before the civil official appointed for this purpose and before him they complete their marriage agreement or contract. The official ascertains their legal capacity, their free expression of will to commit this act, strengthens the property obligations agreed upon by them (regarding the dowry), clarifies for them the rights and obligations of spouses determined by the civil code and declares them husband and wife, leaving it to their will whether to consecrate their marriage with a religious rite, or directly from this moment actually exercise the rights of husband and wife. This act is thus a marriage act in the proper sense. Our law of 1874 April 19 Almost the same civil act is established for schismatic marriage. And our police or volost administration verifies the marriage legal capacity of nupturients, determined by Articles 3, 4, 5, 12, etc. of the code of civil laws (i.e., that they got married at legal age, of sound mind, with mutual consent, etc.) and is verified not only through their personal testimony, but also through the testimony of their guarantors and everyone who wants to show about the obstacles to marriage, then - enters these nupturients as husband and wife into the registry register, without entering into the study of under what religious or everyday rituals the cohabitation of the newlyweds began 9 . From here it is clear that our civil act for a schismatic marriage is not a marriage act, but a verification act; but the result of the two compared acts is the same - the legitimation of marriage from its civil side or the establishment of a civil marriage of nupturients. The only difference is that in the West, the bride and groom come to the civil establishment in order to legitimize the civil marriage they intend to marry, while in our country, illegal cohabitants (sometimes who have already had illegitimate children) come to the civil establishment in order to civilly legitimize the marriage (or, more precisely, submarital) cohabitation that has actually already begun. Thus, the beginning of cohabitation of a civil-married couple, according to our law, takes place outside the law and is legalized later, but according to Western European law, actual marital cohabitation is preceded by legalization, or its legal recognition. This is the only and only significant difference between our schismatic civil marriage and Western European compulsory civil marriage, mandatory for all subjects, with the optionality of church or religious marriage. Destroy this difference - i.e. e. give the schismatic bride and groom the right to preliminarily enter into a domestic agreement and the ritual, religious (in the house or chapel) beginning of conjugal cohabitation, to appear at the volost or police department and perform the above-described act there, and then the right to celebrate or not celebrate any schismatic religious or household marriage rites - then we will have a civil marriage completely identical to Western European ones. But so far this right has not yet been granted and the Russian form of civil marriage retains in all its strength its typical feature from the Western European one. How, however, can we judge those religious and everyday rituals that begin the conjugal cohabitation of a schismatic couple? Does it really not introduce any moral element into the civil-marital relationship of this couple? To resolve this issue satisfactorily, attention must be paid to two sides in the concept of marriage: religious and moral and civil. In the disproportionate majority of people, people see in marriage not only the satisfaction of the requirements of nature and, of course, free human self-determination for life together, but also a direct commandment of God, the fulfillment of a direct divine command. Only semi-wild tribes, living an almost animal life, are able to see in marriage only the satisfaction of a certain instinct; Only extreme atheists, who are still rare among civilized peoples, share this semi-savage view of marriage. In truth, this is the exclusive view of a few; in general, marriage is as much an establishment of nature as it is an establishment of the Divine. In accordance with the will of God and in the name of God, marriage and the entire continuation of married life must take place. This religious side of marriage goes entirely under the authority of the church hierarchy or under the authority of the priesthood or priesthood recognized in the state of religion. Christian priest, Jewish rabbi, Mohammedan mullah, etc. clergy recognized in this capacity (i.e., clergy) are the only competent officials for the religious consecration of a marriage and for certifying its religious character. We can say with complete confidence that there has not yet existed and does not exist a state that would consider not clergy, but any of its officials or any of its institutions, competent for this certification. With this in mind, it is now easy to resolve the question of the significance of the religious and moral element in schismatic marriages. As far as the subjective consciousness of this religious significance of marriage is concerned, it is, of course, also inherent in schismatics living in marriage, at least in the majority. It is clear from this that our government desires that schismatics begin their marriages with prayer and blessing, so that, at least in their subjective consciousness, they consider their marriage union strong and indestructible, not only by virtue of its civil consolidation, so to speak, but also, by virtue of the demands of conscience, consider it the fulfillment of the will of God, the promise they made before God. But our schismatics are completely deprived of the opportunity to legally prove or legally certify this moral and religious side of their marriage, because they do not have persons competent for this, that is, the clergy, recognized in this capacity by the state. Meanwhile, according to the logic of Prof. Berdnikov (and partly Mr. Koni) it turns out that in the eyes of the law, a schismatic marriage, through an entry in the parish register of the police or volost administration, receives a certificate of its religious and moral side - becomes a religious marriage: but to admit this means to recognize the police and volost administration as institutions officially competent for drawing up official determinations on purely church issues and affairs. But even the most ignorant schismatic will probably not reach such an absurdity. But there is also a civil side to marriage. These include: marital civil legal capacity (age, consent of parents, sometimes guardians, permission from superiors, if the groom is an official), sometimes property qualifications), acquisition through marriage of class rights (for the wife), or property rights (dowry and various other conditions, for example, a prenuptial gift under Roman law), etc. These parties to the marriage convey to him the meaning of a civil institution, i.e., such a life relationship, which for legal recognition must meet the requirements clearly in defined by the civil code. Due to this combination of religious, moral and civil elements in marriage, it happened that in Christian states, such as, for example, in ancient Byzantium and currently in Western European states, both sides of the marriage are certified by two institutions, church and civil. Thus, in ancient Byzantium, until the 10th century, church betrothal and church marriage, performed in the form of a sacred rite by a presbyter, were preceded by civil acts of betrothal and marriage - acts that took the form of an ordinary contract 10. The situation is similar now in Western European countries, where compulsory civil marriage has been introduced. The bride and groom must first of all appear before the civil official and here perform the act of marriage contract; then - if they wish - they appear before the priest of their religion, who, in the form of a sacred rite, puts, so to speak, the stamp of divinity on their civil acts. But since in the eyes of the Christian state the first side of marriage (i.e., the religious and moral) is higher than the second (civil) and since a minister of religion (especially a Christian priest) is necessarily supposed to have a person worthy of government trust in terms of moral qualities and mental development: then, in the form of external convenience, the state (both in Byzantium from the 10th century and until the present century throughout Europe) also authorizes the clergy themselves who perform the sacred wedding ceremony and to perform a civil act certifying the civil legality of the marriage they are marrying. Thus, the priest (or clergy) combines in himself the position of a government official performing a purely civil act. For what is our church search, carried out by the parish clergy, if not an act certifying the legality of the marriage in civil terms?!... From this it is clear that while our schismatics and Baptists do not use - as prof. Berdnikov - the rights of public corporations, i.e., until schismatic false bishops and false priests (it would be better to call them anti-bishops, anti-priests) are not recognized as such, there can be no talk of the schismatics’ marriage as a religious marriage. There can be no question because the schismatics have no priest, no bishop: in the eyes of our law, the divine service for them is performed not by a priest, not by a clergyman, but by a peasant, tradesman, merchant or soldier: but can our law really recognize these laymen, or these citizens - if you like - as persons competent to perform the sacred rite of marriage and to certify the religious and moral character of marriage? They are as competent for this as a private bailiff or a volost foreman with a volost clerk. Thus, by the law of 1874 April 19. We have introduced a civil institution competent to certify only the civil side of a schismatic marriage, but not at all the religious one: in the eyes of the law, schismatics have no opportunity to certify the latter. “The execution of marriage rites observed between schismatics that preceded the registration of marriage is not subject to the supervision of police officials who maintain metric records,” the law categorically states on April 19. 1874 A statement testifying as much to humanity as to the wisdom of the legislator. For, in truth, it would be cruelty to authorize a police official with the right to conduct an inquiry in a purely moral area, and very irrational - to appoint a private bailiff or a volost foreman as a judge of religious conscience and the meaning of a sacred rite. But this humane and wise deviation of the state administration from discussing and assessing the religious and moral side of a schismatic marriage should all the more and more persistently encourage the Orthodox hierarchy to be as attentive as possible to this particular side of a schismatic marriage, precisely in the case of the conversion of married schismatics to the Orthodox Church. Of course, the church in discussing this subject should be based on church canons. So the question naturally arises about the canonical significance of the religious element in a schismatic marriage. In his article: “What is a schismatic marriage?” we have touched on this issue and expressed our opinions on this subject in the clearest terms. Prof. Berdnikov, in his polemical article against us, spoke about these judgments of ours as follows: “In the trial (A. Parfenov) they touched upon (the question of the attitude of the Orthodox Church to the marriages of schismatics) in passing. But Prof. focused on it with special attention. Zaozersky... Unfortunately, only his views in this case are even more confused than in the first question” 11. Regarding such a cruel sentence, we consider it necessary to limit ourselves to only the following remark: in this part of our article we were least independent in our judgments; We limited ourselves to presenting the canonical view of the Orthodox Church and current church practice. Our cruel judge, in his polemical enthusiasm, wanting to hurt us, actually committed, albeit an involuntary, but grave sin against the principles of that science, to protect the interests and principles of which is his direct and sacred duty. We are confident that the impartial reader will not find any “confusion” in the views we have expressed on this subject: they are completely clear, simple, free from darkness and contradictions. Therefore, without deviating one step from them, we will limit ourselves to only some additional considerations and explanations of the irrationality of the views of Prof. Berdnikov, expressed by him in contrast to our views, supposedly correct and not confused. The law of 1874, eliminating police and volost officials from interfering in the rites of schismatics, grants the same rights to all schismatic marriages, regardless of what kind of rituals and what kind of dogmatic views on marriages the schismatics hold. According to the law, every schismatic marriage can be awarded civil legitimation only if it is proven that the spouses have belonged to schismatics since childhood. Can the Orthodox Church treat this aspect of schismatic marriages with the same indifference as the state treats? “Not only can, but also should,” says Prof. Berdnikov. “Less than that,” we say. The basis for this is the following considerations. Between schismatics of different persuasions, there is a deep difference in their views on marriage and the rituals of concluding it. Some of the schismatics look at marriage as a sacrament and perform marriages according to the ancient church rite of marriage (that is, almost identical to the church rite); others look at marriage as evil: “Fedosievo’s new wife is only a wife before the world, but a harlot before God. That’s why she is called not a wife, but a housekeeper, a cook, a companion, a mistress of the house” (this means this is a Roman concubinage?) The middle ground between these extreme views is occupied by a very common one, according to which marriage can be without hierarchical blessing, can be sinless – “non-sacred marriage” (i.e. civil) 12. Thus, of the entire mass of schismatic marriages certified from the civil side in state institutions, only one third can be recognized by the church, of course, when the spouses turn to it, as marriages that correspond to its view of the institution of God and the holiness of the marriage union; the other third - and according to the consciousness of the spouses themselves - is a non-sacred marriage, that is, not worthy of religious sanctification, the last third of marriages is something completely anti-Christian - it is the embodiment of Manichaeism. It is clear that the Orthodox Church, accepting into the company of its faithful children these marriages, diverse in moral dignity, must, with its own saving means, fill in what is missing, correct the unfinished, uproot what is directly alien to its spirit, and in its place infuse a new spirit and thus revive and renew in disfigured anti-marital relations the splendid image of the Christian marital union in the image of the union of Christ and the Church. “In bratsekh not only what is commanded (i.e. permitted by civil laws), but we also seek what is beautiful” - this is the ever-changing attitude of the Orthodox Church towards civil marriage; those. only legally recognized as legal. In our article, we indicated, based on church rules and church practice, different ways of church recognition and consecration of schismatic marriages. Prof. Berdnikov, without considering the case on its merits and without appreciating its deep importance, obliges the Orthodox Church to adhere to the following provisions: 1) “As is accepted in the law regarding non-Christians and Christians, and regarding various schismatic sects, the religious rite of marriage should not be taken into account as a circumstance affecting the comparative dignity of the marriage union; as long as the schismatic marriage, according to the conditions of its conclusion, does not contradict the norms established in the law for legal marriages” 13. 2) “Schismatic marriages recognized as legal in civil law do not need to be legitimized through a church wedding. Such schismatic marriages include: a) marriages entered into schismatic metric books in accordance with the established procedure; b) schismatic marriages recorded in the tales of the tenth revision (St. Law vol. 10, 7. 1, article 78, note). 3) “In view of the fact that the law of May 3, 1883 granted schismatic religious communities the rights of religious corporations of a private nature, schismatic marriages, which are not recorded either in the metrics or in the fairy tales of the tenth revision... should also be equated with marriages of other faiths, concluded in tolerant and recognized religions in Russia. In the case of schismatics - spouses in such cohabitation - joining the Orthodox Church, they are not subject to a wedding, but are blessed to continue their marital cohabitation by the act of joining, and then are registered in the church registers as husband and wife... perhaps it would be more reliable and practical in such cases to advise the converting spouses to take care, before joining, to record their marriage in the metric book established for schismatics and then present them to the pastor who joins them metric record of their marriage" 14. These provisions were expressed by G. Berdnikov at the very end of his article, in the form of conclusions. However, he apparently attaches greater importance to them; since he expresses them in a very categorical tone and, moreover, prefaces them with the following question: “What rule should the practice of our Orthodox Church adhere to regarding schismatic marriages at the present time 15. – In response to this question, the above conclusions are proposed. This means that they are not just conclusions, but a rule G. Berdnikov for modern church practice (i.e., bishops and priests). Without going into a detailed assessment of this “rule,” we nevertheless consider it necessary to note the following major shortcomings in it, which, so to speak, naturally catch the eye! 1) In the rule, if they are not confused, then in any case the concepts of “legality” and “ecclesiastical character” of marriage are not clearly distinguished. Paragraph 2 of the rule says: “schismatic marriages recognized as legal do not need to be legitimized through a church wedding.” Of course, that is, the holy truth is that what is legal does not need to be legitimized... But we are not talking about the legalization of marriage through a church wedding, but about the consecration of a marriage through a church rite and about recognizing it as a church marriage. The fact of the matter is that the law of 1874 created in our church legal practice such a provision that a marriage can be “legal” in the civil sense, but not recognized and not sanctified by the church, for the simple reason that this marriage is legalized only by the police (or volost) department: but no one in the world will believe that the police department, legitimizing a marriage, at the same time sanctified it by the church. Therefore, there are legal marriages, but not sanctified, not church. 2) G. Berdnikov’s rule too demeans the power and dignity of the Orthodox wedding rite: for in 1 it ascribes to it only the power of “legitimizing” marriage, in 2 it is expressed that “schismatic spouses are not subject to wedding” (under certain circumstances, see p.v.). Who doesn’t know that an Orthodox wedding is a high honor that is awarded to the children of the church, and is not exactly subjected to some kind of exam or torture? Its inner strength lies in its great significance as a sacrament - a grace-filled sanctifying means. As for its significance as a means of legitimizing marriage; then this meaning is the lowest and is necessarily associated with the church rite: for there was a time when the state did not attach legal significance to the Orthodox wedding rite, therefore, did not recognize it as a means of legitimizing marriage, just as nowadays Western states do not recognize such a property for Catholic, Protestant and any other weddings. Not as an argument, but out of simple curiosity, we consider it not superfluous in conclusion to find out how the Germans, who have introduced compulsory civil marriage, think about the meaning of a church wedding. “Wedding says Prof. W. Kahl - the minister of the church certifies the divine union of this marriage. It consists not simply in a solemn depiction of the divine establishment of marriage in general, but is a certification of the divine character behind precisely this (i.e., the crowned) marriage. This kind of priest’s certification fully corresponds to the confession of the spouses that they enter into marriage only by the permission of the Word of God and the church, and that they should not destroy their marital relationship except in accordance with the establishment of God and the church: for what God has joined together, let not man separate. This certification of the divine union of marriage at the same time testifies that this marriage is an indissoluble union. Of course, those husband and wife were also united by God, whose marriage, not contrary to the Word of God, began only with a civil marriage act; for the right of the state to enter into marriages according to the Christian view, in its final basis, also has the Will of God: but the fact of divine union there (that is, in a civil act) was not solemnly declared by a state official. According to the laws of the divine creative world order, the state and the church stand next to each other, like different vital communications: therefore, the state does not at all become hostile or negative towards the fact of the divine establishment of marriage by ignoring it during the civil marriage act; no, it allows itself to limit itself only to the regulation of marriage, as a worldly thing, in accordance with its social order; it provides certification and care for the conformity of this marriage with the immediate Will of God to the Christian Church. And it should be represented to her: because she expresses the Christian concept of marriage in confessional differences” 16. This is how a German law professor talks about the importance of a church wedding for a civil marriage. Russian prof. Church Law, G. Berdnikov argues about this differently: The Orthodox Church should not take into account the ritual of concluding a schismatic marriage as a circumstance affecting the comparative dignity of the marriage union, as long as the schismatic marriage is certified by the Police Department (p. 228). A very exceptional opinion! N. Suvorov, Course of Churches. rights. T. 2, 1890, pp. 330–331. Prof. I. Berdnikov: the form of marriage among European peoples in its historical development. Kazan. 1887 p. 40. Civil course Law, Part 2, p. 66. Ed. 3rd. St. Petersburg. 1889. Berdnikov, Short Course in Central Law. Kazan. 1888 pp. 141–144. Mr. Berdnikov also thinks so, polemicizing against us; for in his article, on page 201, he says: “Against Mr. Zaozersky, it should be noted that it cannot be said that the law of April 19. 1874 does not attach any significance to the religious rites used by schismatics when performing their marriages.... It (i.e., the law) just does not attach legal significance to them.” Thus the weapon turned against us unexpectedly in the hands of the attacker himself turned for us. Berdnikov, short course Ts. Law, pp. 130–131. In the name of truth and conscience, we consider ourselves obliged to admit the gross mistake made in our previous article on this issue. It is on page 274 of Theologian. Vestn. 1895 Feb. we placed the following lines: “the procedure for recording a schismatic marriage is a whole ritual, quite consistent with the announcement and search performed in the Orthodox Church, a ritual performed by civil officials, but at the same time this ritual in the eyes of the law is of great importance - the significance of the marriage process.” We acknowledge the last underlined words as our mistake and take them back. However, the same duty of conscience for the sake of polemical interests prompts us to say that we did not come to the awareness of this error thanks to the article of Prof. Berdnikova. Quite the opposite: we are even pleasantly surprised that Mr. Berdnikov, who found many reasons to accuse us of various “contradictions” and “confusion” (albeit in vain), did not notice this mistake of ours and did not accuse us of a real mistake. We were all the more pleasantly surprised that Mr. Berdnikov, bypassing these lines of ours, attacked the immediately following and completely innocent lines, he attacked as follows: “Prof. Zaozersky draws attention to the procedure for recording a schismatic marriage and says that it represents a whole ritual that is almost in no way inferior to the contractual act of a civil marriage; All that is missing here is for the official to approach the couple getting married (with a question): do they have a voluntary desire to get married and do they promise to be faithful to each other.” “It’s easy to say - Mr. Berdnikov reproaches us - the most important and essential part of the marriage ritual, which is observed during a civil marriage, has been omitted!.. But this little thing does not bother Prof. Zaozersky, and he continues: “but this is naturally assumed here, etc.” (p. 199 Law Conversation Oct.). The blow - as the reader sees - was directed strongly and almost hit the target, but nevertheless there was a miss on the part of the attacker. My mistake is not that I consider it a trifle that there is no question about the voluntary desire to marry: this question is necessarily assumed and asked, according to the force of Art. 12 Code. v. 10, but in the fact that I called the act itself a marriage process, and even in the eyes of the law: this is really a gross mistake; but Mr. Berdnikov didn’t even notice her. It turns out, therefore, that - according to the proverb - he was chasing a fly with a butt, but did not notice the elephant... These forms of betrothal and marriage can be seen in our printed helmsman's book ch. 48 and 49. Orthodox Interview Oct. page 203. We pointed out these views in our article “What is a schismatic marriage?” See Feb. book Theologian Vestn. pp. 265–267. Right Interview page 228. Berdnikov, Prav. Sob. Oct. pp. 229–230. The last of G. Berdnikov’s rules is a remarkable phenomenon in its own way in the modern legal world. For, while the legislator says clearly that “marriage unions concluded by schismatics after the tenth national census are recorded in metric books on the exact basis of the general rules on the metrical recording of schismatic marriages” (Cod. 10, art. 78 note, paragraph 2), prof. Church rights G. Berdnikov, for his part, finds this course of action still doubtful: perhaps it would be more practical, he says, and so on. And vice versa: The legislator, when issuing rules regarding schismatics on May 3, 1883, did not say a single word about the issue of schismatic marriages; and prof. Berdnikov decisively declares that “in view of the law of May 3, 1833, schismatic marriages that are not recorded either in the metrics or in the lists of the 10th revision... should be equated with marriages of other faiths. What happens if the spouses are schismatics, after reading G.’s article. Berdnikov, will begin to arrange their family affairs guided by the rights granted to her, and not by the code of Russian laws? – Various practical troubles will probably follow both for the schismatics and for G. Berdnikov. Right Sob. Oct., p. 227. Dr. W. Kahl. Civilehe und kirchliche Gewissen. Zeitschrift für Kirmrecht. 1883. 7, s. 335. You might be interested in: