What is the basis of church jurisdiction in marriage matters?: (Concerning modern pessimistic views on family life and the resulting press talk about marriage and divorce)
На чем основывается церковная юрисдикция в брачных делах?: (По поводу современных пессимистических воззрений на семейную жизнь и обусловливаемых ими толков печати о браке и разводе)
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(Concerning modern pessimistic views on family life and the press talk about marriage and divorce that they determine)
The divorce process, which has always been one of the liveliest issues of law and politics, has now apparently entered a stage of its movement that can, in all fairness, be called its crisis. This, apparently, affected, among other things, the fact that such a reputable spiritual body as the Church Bulletin burst out with a number of articles that set out to prove the legality of the transfer of divorce cases from the ecclesiastical department to the civil justice department 1 . If the capital's academic body decided to raise this burning issue and outline its resolution in a certain direction, then this is, of course, a clear and sure sign that this issue has been put on the line for practical resolution and that in the church environment itself the idea of solving it in a certain direction has sufficient representation for itself.
It is possible, however, that the Church Messenger raised this issue, not with the intention of actually putting it on the agenda for legislative resolution, but simply wanting to encourage this and provoke an exchange of opinions. The vitality of the question in itself is so undoubted and its solution is so difficult and important that an exchange of opinions on it is never superfluous; on the contrary, it has always been and will be filled with deep vital interest.
The very essence of the matter and the formulation of the question given by the venerable body prompts us to respond to the invitation of the venerable body of the spiritual press in order to express our opinion on this issue.
The Church Bulletin presents two types of grounds for transferring divorce cases to the Ministry of Justice - temporary, accidental, and fundamental. The first include: 1) the unsatisfactory nature of the currently accepted consistory proceedings in these cases; 2) repeated attempts to transfer these cases to the Ministry of Justice, officially expressed in the Holy Synod itself. Without limiting ourselves to this, the Church Messenger does not find any obstacles in the very essence of marriage, as a sacrament, to the fact that the divorce process is conducted not by a spiritual, but by a civil court. Given the fidelity and firmness of each of these foundations, the question arises by itself, so to speak: on what was and is church jurisdiction based in divorce cases?
For at least a thousand years, both in Russia and throughout the Orthodox East, the jurisdiction of the Church in divorce cases by the state was recognized as firmly justified; This circumstance involuntarily prompts the question: what happened in the 20th century so important in the life of the Orthodox Church or in the structure of the Russian state that it shook these foundations, hitherto considered so solid?
The Church Bulletin points to one of these circumstances - the generally recognized insufficiency of the divorce process hitherto practiced by the Consistory. The ecclesiastical court in its judgment of the process is far behind the civil court: so far that it seems that there is nothing better to do than to resolutely give up the very range of divorce cases in favor of the civil department. The awareness of this unsatisfactory spiritual process was inherent in the Holy Synod at the end of the 18th century, did not leave throughout the 19th century and seemed to be the motive for transferring these cases to the civil department. This time, the Church Bulletin strengthens this motive, explaining that in principle there are no obstacles to the reform in question in the essence of the divorce case.
This is the main idea developed by a number of articles in the Church Bulletin. If, without going into a particular analysis of it for now, we apply to it the general question we posed: on what was church jurisdiction in divorce cases based, then we will receive an answer: the only thing is that the church process has hitherto been better than the civil process. The result was an idea, the truth of which hardly anyone dares to prove. At the same time, the entire argumentation of the Church Messenger loses its persuasiveness. The logical inconsistency of this argument is also revealed from the other side: from the fact that currently consistory legal proceedings are unsatisfactory, it does not follow that divorce cases themselves should be transferred to the civil department. The direct conclusion is that consistory proceedings should be improved.
That it should be improved - for the currently practiced consistory legal proceedings are both inappropriate and unworthy of the Orthodox Church - this hardly requires proof: so much and so thoroughly it has already been proven both in word and in deed! Church legal thought should now be aimed at inventing a completely different procedure for legal proceedings in divorce cases. Both science and judicial experience must be brought to bear on this important matter.
But we should not limit ourselves to improving just legal proceedings: there is a need to review and change the substantive divorce law itself - namely, the grounds for marital divorce, as well as the consequences of divorce, especially due to adultery of one of them or both. If you then delve with sufficient attention into the rather loud and almost incessant statements of the periodical press about the modern decline of morals, about the loosening of marital and family life in general, then, it seems to us, it is not superfluous to expand the question even further, that is, to try to consider the grounds of church jurisdiction not only in divorce cases, but also in marriage cases in general. Coverage of this general issue will also illuminate a particular one - about the degree of participation of the Church to which it must actively manifest itself in divorce cases.
An attempt to present such coverage of the general question - on what the jurisdiction of the Church in matters of marriage is based, and precisely from the point of view of its exclusively canonical law - is the task of the proposed work.
Among the commandments that the Lord Jesus Christ directly gave to His Apostles, commanding them to teach all nations to observe them, the commandment about marriage occupies a very prominent place. What is this commandment? It is not some kind of theoretical or dogmatic truth that should serve as an object of perception only for the mind and then as a principle, for example. moral or ethical, to be applied by everyone at his own discretion, arbitrariness and circumstances. Such an understanding of Christ’s commandment about marriage, unfortunately, however, in our time may be more popular than ever, is completely false and cannot, in our opinion, be justified by anything at all.
Anyone who would like to renounce this popular opinion would be kind enough to listen to the reasons that we will now present, and anyone who would like to defend the correctness of the popular opinion would be kind enough to try to refute them.
Everyone will agree, we believe, with us that in order to resolve the question of what Christ’s commandment about marriage is - a law or a moral principle, one should first of all ask, so to speak, the Holy Gospel itself: how does it solve this question?
Everyone who has read or heard the Holy Gospel (and who has not read or heard it?) knows well that the Lord touched, so to speak, on the question of this commandment 2 not once, but many times, and clarified its meaning not only in word, but also in action itself - he touched upon it so many times that if we were to collect together all these patristic and learned passages and commentaries on them, such a collection would form a very, very great book.
But we are bypassing this complex and very difficult way of questioning the Gospel: for it answers this question with such amazing clarity that it is enough only to listen to only some parts of it with due attention and with the appropriate purity of heart.
The first of these passages is a fragment from the Gospel of Matthew (19:3-10).
“And the Pharisee came to Him, tempting Him, and said to Him: “Is it worthy for a man to let his wife go for any reason?” [“And the Pharisees came to Him and, tempting Him, said to Him: “Is it lawful for a man to divorce his wife for any reason?”” (Matthew 19:3).]
The Lord gave a negative answer: “If God joins together, let not man put asunder (...what God has joined together, let not man put asunder)” (Matthew 19:6).
“And she said to Him: “What commandment did Moses give to give the book of licentiousness and let it go?” The verb to them: “For Moses, out of your hardness of heart, commanded you to let your wives go; but from the beginning it was not so.” I say to you: “If anyone lets his wife go, he is adulterous and marries another woman, he commits adultery, and he who marries a prostitute commits adultery.” His disciples said to him: “If such is the guilt of a man with his wife, it is better not to marry” (Matthew 19:7-10).
[“They say to Him: “How did Moses command to give a letter of divorce and divorce her?” He says to them: “Moses, because of your hardness of heart, allowed you to divorce your wives, but at first it was not so”; but I say to you: “Whoever divorces his wife for reasons other than adultery and marries another commits adultery; and he who marries a divorced woman commits adultery.” His disciples said to Him: “If this is a man’s duty to his wife, then it is better not to marry” (Matthew 19:7-10).]
What are we talking about here: a moral principle or a positive law? Whoever reads this passage of the Gospel in simplicity of heart and with full use of his mind can give only one answer: about the positive law. The Lord resolves here a purely legal incident, which the representatives of Jewish justice wanted to catch (by tempting Him). He resolves it authoritatively, gives an authentic interpretation of the law, acts as a Legislator, and not as a teacher-moralist.
If this understanding of a given passage is unconvincing, let’s take another.
Gospel of John: “The scribes and the Pharisee brought to Him a wife in adultery and set her in the midst (John 8:3). Saying to Him: “Teacher, this wife is now in adultery. In the law, Moses commanded us to stone such people. What are you saying?” Having decided this to tempt Him, they would have what to say.
Speech to her: “Woman, where is the essence of those who are vazhdahu on you? Should you judge anyone?
She said: “No one, Lord.” Jesus said to her: “I do not condemn you: go, and from now on do not sin to anyone” (John 8:3–6,10–11) 3.
[“Then the scribes and Pharisees brought to Him a woman taken in adultery, and, placing her in the middle, 4 they said to Him: “Teacher! this woman was taken in adultery; 5 And Moses commanded us in the law to stone such people. What do you say? 6 But they said this to tempt Him, that they might find something to accuse Him of. But Jesus, bending low, wrote with his finger on the ground, not paying attention to them. 7 When they continued asking Him, He bowed down and said to them, “He who is without sin among you, let him be the first to throw a stone at her.” 8 And again, bending low, he wrote on the ground. 9 When they heard this and were convicted by their conscience, they began to go away one by one, beginning from the oldest to the last; and only Jesus remained and the woman standing in the middle. 10 Jesus, standing up and not seeing anyone but the woman, said to her: “Woman! Where are your accusers? Has no one judged you? 11 She answered: “No one, Lord.” Jesus said to her, “Neither do I condemn you; go and sin no more" (John 8:3–11).]
What are we talking about here: a moral principle or a positive law? – Of course, about a positive law: for people are not stoned for not following a moral principle. Here is the same resolution of a legal incident, but even more acute than the previous one.
Christ, as the Giver of the New Testament, restores the original law on the marriage of one husband and one wife, equalizes the responsibility for violating the VIIth commandment for both husband and wife: for Jewish jurisprudence interpreted this commandment one-sidedly - condemning only the guilty wife to stoning for adultery and allowing the husband to leave his wife for any fault. He, the Intercessor and Redeemer, by His power forgives the repentant adulteress and harlot.
Christ placed the duty of monitoring the fulfillment of this new commandment on marriage, as well as other commandments of the New Testament, entirely and exclusively on His Church.
The church hierarchy, which bears this pastoral duty, cannot refuse it: here lies a deep and unshakable basis for ecclesiastical jurisdiction in marriage matters.
The Church Herald takes a completely different view of this pastoral duty of the church hierarchy. Here is his view: “The transfer of divorce cases from the ecclesiastical to the secular court, in addition to ensuring greater accuracy in the proceedings of these cases, will free the ecclesiastical authorities from many burdensome functions for them. The conduct of these cases is sometimes associated with extremely unseemly actions. In addition, how much time do the diocesan eminences spend on reading sometimes extensive, full of all kinds of tricks, divorce cases (i.e., papers?), What time could be more usefully used by the eminences on other, more valuable activities. One can doubt whether the reading of consistory protocols on divorce cases facilitates pastoral activities to influence the flock in the spirit of Christian edification; still less can it be asserted that the material of the divorce process constitutes a necessary acquisition for a pastoral understanding of the ills of the social environment.
In general, it is difficult to identify parties who would testify that listening to judgment speeches in divorce proceedings is required precisely by the pastoral ministry of clergy. Divorce proceedings in most cases concern such everyday relationships that are alien to the moral element, from beginning to end they are permeated only by the tricks of a depraved feeling and the passion of a darkened mind. And is it really necessary to listen to all this with your own ear in order to be, as they say, aware of the matter, in order to be convinced of the fact of the crime and make a decision? Spiritual power will not lose anything and will not fall from the height of its position if it, having withdrawn from the seductive aspects of the divorce process, retains for itself the ways of spiritual and moral influence characteristic of it on spouses suffering from the disease of mutual alienation” 4.
So, let us leave Christ Himself and the officials of the District Court to deal with the tricks of a depraved feeling and the passion of a depraved mind and free our archpastors and shepherds from this heavy duty.
The conclusion is correct, but very unpleasant. But perhaps our above interpretation of the Gospel passages is incorrect, incorrect?
To resolve this issue, we find nothing better than to turn to the sphere of our special studies - to the sources of canon law of our Orthodox Church. How valuable our argument will be, based solely on this basis, is not for us to judge; but we consider it not superfluous to present an attempt at such argumentation.
It is this understanding of the indicated passages of the Gospel that serves as the basis for the entire marriage discipline revealed by the sources of Orthodox canon law.
The new commandment or new law regarding marriage was given by Christ under circumstances most unfavorable for its application. Even His chosen ones themselves, having heard and understood him, but not yet being endowed with power from above, were horrified and said: “If such is the guilt of a man towards his wife, it is better not to marry [if this is the duty of a man towards his wife, then it is better not to marry] (Matthew 19:10). But among the Jewish people, to which those who expressed such an opinion about the new commandment of Christ belonged, there was an even better environment: for here the God-given law and the prophetic word were kept; only in everyday life was it obscured by the “tradition of the elders” and false legal doctrines. As for civilized paganism and the semi-savage peoples of the East, here Christianity encountered either deep corruption of family morals, or gross depravity in its most monstrous, unnatural forms (Rom. 1:26-27).
The civil law, although it was armed with cruel criminal punishments against libertines and adulterers, it remained a dead letter: for the legislators, judges and executors themselves were not free from these same vices: there was no one to pick up a stone to beat the culprit: “Everyone turned aside, they became equally indecent; there is none who does good, no, not one” (Ps. 13:3; Rom. 3:12). The guardians of the new law on marriage here had the only corner where the ray of the Gospel light could successfully penetrate - this is the natural conscience, the human heart. To this corner of St. the apostles and their successors and sent their preaching about the new law of marriage (Natural Law 5). The preachers of the new Gospel law on marriage, endowed with power from above, did not act as reformers of the state and social system or reformers of civil law.
It was not new marriage law that they introduced into the existing legislation: the latter remained in effect inviolable and was in effect for a long time; they introduced into the very life of Christians only the discipline of chastity and the discipline of marriage. And here we have before us an amazing phenomenon: over the space of nine centuries we see two church codes in force: the so-called. “Apostolic Constitutions” and Nomocanon in the XIV titles (finally edited by the famous Patriarch Photius) and in them - not a single word about church weddings, that the conclusion and dissolution of marriage is the business of the Church. Meanwhile, in these centuries, the church discipline of marriage acted with such force that it did not act later, when it was introduced into the positive civil law on marriage.
Yes, for nine centuries, the Church, without any support from state power and civil law, implemented the new law on marriage only through its purely moral means.
What kind of means were these?
They were of two kinds - positive and negative.
The first were aimed at preserving the firmness and dignity of the marital union and the elevation of women; the second - to combat debauchery - measures of severe repentance applied to violators of the sanctity of marriage and the discipline of chastity.
From the lips of the apostolic man, Hieromartyr Ignatius the God-Bearer, we hear the following instructions to his friend, Bishop Polycarp:
“Inspire my sisters (i.e., married Christian women) to love the Lord and be content with their partners in the flesh and in the spirit. Likewise, advise my brothers, that in the name of Jesus Christ they should love their spouses, as the Lord loves the Church (Eph. 5:25). Whoever can abide in purity in honor of the Lord’s flesh, let him abide, but without vanity. If he becomes vain, he is lost; and if he separates from the bishop, he is completely lost. And those who marry must enter into a union with the consent of the bishop, so that the marriage is about the Lord, and not out of lust. Let everything be for the glory of God" 6.
Here are a few but highly important instructions on marriage discipline from the primary church code, corresponding to the instructions of the apostolic husband.
“Whoever comes to the mystery of piety for the first time (i.e., asks to be accepted into the Church, to become its member), let the deacons bring them to the bishop or presbyters, and let those who bring them testify about them, having precisely examined... their behavior and life... If he has a wife, or a husband’s wife, then let them learn to be content with themselves; and if they are not married, then let them learn not to commit fornication, but to marry according to the law. And if his (slave’s) master, a believer and knowing that he commits adultery, does not give him a wife, or the wife a husband, then let him be excommunicated. He who keeps harlots must either stop pimping or be rejected. If a harlot comes, then either let her stop committing fornication, or let her be rejected... The vile carnivore, the dissolute, the lustful, the magician, the sorceress... let her be tested for a year: for one cannot quickly give up on evil: whoever stops doing this will be accepted, and whoever does not obey, will be rejected. A slave, a concubine of some unbeliever, who has intercourse with him alone, may she be accepted; and if she commits debauchery with others, let her be rejected.
If a believer has a slave as a concubine, then let him stop having her as a concubine and marry according to the law; if he has a free woman, then let him marry her according to the law; but if someone is diligent and has a good disposition for the matter, let him be accepted (that is, earlier): for it is not time that is valued, but behavior” 7 .
“And when a Christian, a boy or a girl, becomes an orphan, it will be wonderful if one of the brothers who has no children takes the boy and has him instead of a son, and marries the girl, if he has a son of her age and is ripe for marriage. For those who do this accomplish a great work, becoming fathers of orphans, and for such service they will receive a reward from the Lord God. If any rich man, living according to man-pleasing, is ashamed of the members of the orphanage, then the Father of the orphans and the judge of widows will take care of the orphan (Ps. 67:6), and the rich man will be attacked by one who will exhaust everything that he spared, and what was said to him will come true: what the saints did not eat, the Assyrians and Yanas will eat 8.
So you, bishops, take care of what is necessary for their sustenance, without abandoning them at all; but care for orphans like parents, and for widows like husbands; Combine adults in marriage, provide employment for the master, show compassion to the weak, provide shelter for strangers, hunger for food, thirst for drink, clothing for the naked, visitation for the sick, help for prisoners. Moreover, take even more care of the orphans, so that they do not lack anything: give the girl, as soon as she reaches marriageable age, in marriage to her brother (i.e., a Christian), and provide the boy with the means so that he can study the skill and soak up the abundance of it, and when he successfully learns the skill, he can then buy himself workshop tools, so as not to burden the unfeigned love for yourself brothers, but be content with yourself” 9.
And here are the rules of discipline concerning the most intimate side of married life: “Let the husband be neither arrogant nor proud towards his wife, but merciful and generous, wanting to please only his wife and caress her respectfully, trying to be to her liking, and not dressing up in order to catch someone else. For if you were unwilling to be her (someone else’s wife) and sin against her (your wife), then eternal death will come upon you from God and you will be severely punished. And even if you did not commit an abomination, but, having pushed your wife away, denied her, even here you have sinned, although you did not do the deed, but only with your outfit caught the wife (i.e., a stranger) to desire you: for you did that through this she had the desire to commit adultery with you. Of course, you are not so guilty, because it was not you who was seduced by what you caught, for it was not you who desired it, and if you do not surrender to it, you will have mercy on the Lord God, who said, “You shall not commit adultery” and “You shall not covet” (Ex. 20:14, 17).
But if she was struck in thought and was seduced by you because she saw you, or met you at an inopportune time, then although you, as a pious man, renounced her, abstained and did not sin against her, but (still), since she was wounded in her heart so that she developed love for you because you, a handsome young man, am a married man, then you, as the one who became the culprit of her temptation, you find yourself guilty of her fall and the heir of grief (τοῦ οὐαί). Therefore, pray to the Lord God so that no evil befalls you for this. For you must not please people to sin, but adhere to God in order to live righteously and rest forever. Do not decorate the beauty given to you by nature by God, but humbly moderate it before people. So, do not grow your hair long, but rather cut it off and cut it, so that by frequently combing your hair and keeping your head uncut, or by anointing yourself with fragrant ointments, you do not attract to yourself those women who are thus caught or caught. And don’t use exquisite clothes for seduction” 10...
“Let the wife submit to her husband, because the husband is the head of the wife, and the head of the husband who walks in the path of righteousness is Christ... Fear the wife of her husband, and be afraid of him, try to please him alone and be pleasing to him through your services, so that for your sake the husband may be pleased with the wisdom that says through Solomon: “Who will find an worthy wife?” Dearest, there are such valuable stones. The heart of her husband dares to be naked: she will not lose her gain... (Proverbs 31:10-32).
“If you want, wife, to be faithful and pleasing to the Lord, then do not dress up to please other people’s husbands, and in wearing braids of hair, or clothes, or garters, do not imitate those who lead a dissolute life in order to attract those who are caught by this. And even if you did these abominations not in order to sin, but only in order to dress up, then even in this case you will not escape punishment later if you persuade someone to be carried away by your desire, and you are not careful not to either fall into sin yourself, or not to plunge others into temptation. And if, having indulged in what you have seduced, you sin, then you personally commit lawlessness, and in that person’s soul you will be guilty, then having sinned with one, as if forgetting for once, you insensitively turn aside again to others, as the Divine Word says: “As soon as the wicked comes into the depths of evil, he is negligent: does dishonor and reproach find him” (Prov. 18:3). For such a woman, having been wounded, finally cruelly captures the souls of the unchaste.
Let us listen to how the Divine Word disgraces such women, saying: “I hated the woman more than death, for she is a snare and a snare for the heart, and a bond is for her hand” (Eccl. 7:26); and in another place: “Like gold in the nostrils of a swine, so a woman’s babbling is more wicked” (Prov. 11:22); and again: “Like a worm in a tree, so a malicious wife destroys husbands” (Prov. 12:4); and again: “It is better to live in an uncovered coal than with a pagan and contentious woman” (Prov. 21:9-19).
Do not imitate such women, you Christians. But if you want to be faithful to your husband, then try to please him alone. Cover your head in the streets; for through the veil you will not allow anyone too curious to look at you. Do not paint the face given to you by God; for there is nothing in you that needs decoration, because everything that God created is very good (Gen. 1:31), and excessive decoration of good things dishonors the gift of the artist” 11.
Of course, to the eye of the civilized and depraved modern reader, these instructions will seem extremely naive and retrograde; but for a modern Christian or a deep philosopher, free from idolatry before the prejudices of civilization and fashion, they will seem not only naive, but also truly wise, as relying as much on Divine authority as on the true voice of human nature (natural law).
The following instructions, which are quite closely related to the issue that occupies us, should seem just as naive and wise.
“If anyone observes and performs Jewish rites regarding the ejaculation of semen, the flow of semen in sleep, legal intercourse (Lev. 15:1-30), let them tell us whether they stop praying or touching the Bible or communing the Eucharist during those hours or days when they are exposed to something like this? If they say that they stop, then it is clear that they do not have the Holy Spirit within them, Who always abides with believers: for Solomon speaks of the righteous, so that everyone prepares himself in such a way that when they sleep, He will guard them, and when they rise, He will speak with them (Prov. 6:22). In fact, if you, wife, think that during the seven days when you have your period, you do not have the Holy Spirit in you; it follows that if you die suddenly, you will leave without the Holy Spirit and boldness and hope in God. But the Holy Spirit is absolutely inherent in you, because He is not limited by place, and you have a need for prayer, the Eucharist, and the coming of the Holy Spirit, no matter how little you have sinned in this.
For neither legal copulation, nor childbirth, nor the flow of blood, nor the flow of semen in sleep can defile the nature of man or separate the Holy Spirit from him, but only wickedness and lawless activity. The Holy Spirit always abides in those who have acquired Him as long as they are worthy of it; and those from whom He departs remain those who do not have Him and are devoted to the evil spirit. Yes, some people are filled with the Holy Spirit, and others with the unclean spirit, and it cannot be that they will escape one or the other unless they are exposed to something else, because the Comforter hates all lies, and the devil hates all truth. And everyone who is baptized is truly removed from the devilish spirit and is in the Holy Spirit, and in the one who does good, the Holy Spirit abides, filling him with wisdom and understanding, and does not allow the evil spirit to approach him, observing his entrances. So, if you, wife, during the days of menstrual cleansing, do not have the Holy Spirit in you, as you say; then you must be filled with an unclean spirit.
For when you do not pray and do not read the Bible, you involuntarily call him to you, because he loves the ungrateful, the careless, the careless, the sleepy, since he himself, through ingratitude, fell ill with malice, and is deprived of dignity by God, having decided to be the devil instead of an archangel. Therefore, wife, refrain from vain speech and always remember the One who created you and pray to Him, for He is your Lord and of all things, and learn from His laws, not observing anything - neither natural purification, nor legal copulation, nor childbirth or miscarriage, nor bodily vice. These observations are empty and meaningless images of stupid people. For neither the burial of a person, nor the bone of a dead person, nor a coffin, nor this or that food, nor the flow of semen in a dream can defile a person’s soul, but only wickedness against God, and lawlessness, and injustice towards one’s neighbor, I mean predation or violence, or anything that is contrary to His righteousness, adultery or fornication. Therefore, avoid, beloved, and avoid those observations, because they are Hellenic.
For we, contrary to the Hellenes, do not disdain the dead, hoping that he will live again, nor do we condemn lawful copulation, but they are accustomed to interpreting such things poorly. For the lawful copulation of a husband and wife occurs according to the thought of God, because the Creator first created the male and female sexes and blessed them and said: “Be fruitful and multiply and fill the earth” (Gen. 1:28). So, if the difference between the sexes took place according to the will of God for the birth of descendants, then it follows that the copulation of a husband with his wife is in accordance with His thought. On the contrary, an unnatural mixture, or a lawless act, is vile, because it is hostile to God. For the uncleanness of Sodom and defilement with animals is contrary to nature, and adultery is contrary to the law; of these, the first and second are wickedness, the third is injustice, and the last is sin. But not a single one of them goes unpunished by its very essence.
For those who commit sodomy and bestiality are preparing the destruction of the world, attempting to do what is natural against nature; adulterers act unjustly because they corrupt other people's marriages, divide into two what God has made one and make children suspicious, and a natural husband easy to deceive; fornication is the corruption of one’s own flesh, which occurs not for the production of children, but for pleasure alone, which is a sign of intemperance, and not a sign of virtue. Yet this is prohibited by law...... Marriage is honorable and honorable and the birth of children is pure; for there is nothing bad in good. And natural cleansing is not abominable before God, Who wisely arranged for it to happen to women every thirty days for their health and strengthening, because they spend little time on the move, because they sit more at home. But according to the Gospel, when the bleeding woman touched the saving hem of the Lord’s robe in order to recover, the Lord did not reproach her and did not blame her at all; on the contrary, he healed her, saying: “Your faith has saved you”” (Matt. 9:22) 12.
Another positive measure in establishing the discipline of chastity was the elevation of the dignity of women by establishing the church ranks of “widowhood”, “maidenhood” and the rank of deaconess. Our code knows only these ecclesiastical states and orders of women's church service and does not yet know the order of monastics.
Here is a description of these ecclesiastical states of Christian women in the first centuries:
“But appoint widows no less than those who are sixty years old (1 Tim. 5:9), so that, judging by their age, you (bishops) in some way do not reasonably suspect that they will enter into a second marriage. If you place a young woman in the “widow’s host” and she, having not endured widowhood due to her youth, enters into marriage, then she will cause disgrace to the glorious host of widows and will give an account to God, not because she married a second time, but because she did not keep her promise, falling into luxury in opposition to Christ (1 Tim. 5:11), because she did not come to keep the promise with faith and the fear of God. Therefore, she should not make a promise rashly, but with caution: for it is better for her not to promise, than to promise and not fulfill (Eccl. 5:4). If some young woman, having lived a short time with her husband, after losing him through death or some other case, remains lonely, having the gift of widowhood, then she will turn out to be blessed, like the widow of Zarephath of Sidon, with whom St. the prophet of God Elijah (1 Kings 17:9).
Such a one will be like Anna, the daughter of Phanuel from the tribe of Asher, who did not leave the church, staying night and day in prayers and supplications, being 84 years old, who lived with her husband only 7 years from her virginity and, glorifying the coming of Christ, praised the Lord and spoke about Him to everyone who expected deliverance in Israel (Luke 2:36-38). Such a one, having received approval, will be honored and will have glory from people both on earth and eternal praise from God in heaven. And let young widows not join the host of widows, lest, under the pretext of being unable to overcome the ardor of age, they enter into a second marriage and become guilty. Let them be provided with all possible assistance and benefits, so that under the pretext that they were abandoned, they do not do an indecent thing by entering into a second marriage.
For even then you must know that monogamy, which occurs according to the law, is righteous, as being in accordance with the will of God, and second marriage, after a promise, is lawless, not due to union, but due to the violation of a promise, and trigamy is a sign of intemperance; marriage that occurs beyond the third is open fornication and undoubted debauchery: for at creation God gave one husband one wife: the two will become one flesh (Gen. 2:24). And for young women, after the death of their first husband, let a second one be allowed, so that they do not fall into the reproach of the devil (1 Tim. 3:6) and into many snares and into reckless and harmful lusts for the soul (1 Tim. 6:9), which attract more punishment than forgiveness.
“True widows are single, known to many for their good deeds, truly widows, chaste, blameless, faithful, pious, who raised their children well, and who accepted strangers blamelessly. These are the ones who should be taken care of, as those dedicated to God” 13.
Such a widow is “the altar of God” 14.
“As for virginity, we have not received a commandment about it, but we leave it to the will of those who wish, as a vow (1 Cor. 7:25-26). We only convince them not to promise anything rashly, since Solomon says: it is better for you not to promise, than to promise and not fulfill (Eccl. 5:4). And let the virgin be holy in body and soul, as the church of God, as the house of Christ, as the abode of the Holy Spirit. For it is necessary that the one who has made a vow, by performing deeds worthy of the vow, should show that her promise is true and was made out of zeal for piety, and not as a disgrace to marriage. May she not be a slut, not a tramp, not dual in thought; but honest, temperate, chaste, blameless, meeting with many, and especially with the dishonest.” 15
“And I decree about the deaconess, Bartholomew. You, bishop, lay your hands on her in the presence of the presbytery, deacons and deaconesses and say: “Eternal God, Father of our Lord Jesus Christ, man and wife to the Creator, who filled the Spirit with Miriam and Deborah, and Anna and Aldinah, not denying that your only begotten Son would be born of a woman, who also in the tabernacle of testimony and in the church chose women to guard the holy gates Yours. Even now, look upon this Thy servant, chosen to serve, and give her the Holy Spirit and cleanse her from all filthiness of the flesh and spirit so that she may worthily complete the work entrusted to her for Thy glory and the praise of Thy Christ, with Him be glory and worship to You and the Holy Spirit forever. Amen"" 16.
The reader may think that the excerpts we have cited from the primary church code are nothing more than moral instructions that do not have and did not have a legal nature. But to this it must be said that, firstly, it is not in the spirit of the Church, especially the Ancient Church, to so sharply separate morality and law, as some philosophers and jurists of the present time do; secondly, our stated excerpts, although they really have the form of instructions, but they serve as the basis for categorical rules or “canons of the church”, which form an appendix to the code we have designated in the form of the “Rules of the Holy Apostles”, or “canons” of subsequent times, assigning a certain sanction for their violation - which, of course, is not characteristic of moral maxims, but only legal regulations.
Thus, the Apostolic Rules prohibit persons convicted before a church court of deviating from the norm of marriage presented by us from being admitted to the clergy: the consequence of evasion is completely legal.
“If there is some slander (κατηγορία) against the faithful (i.e., Christian) about fornication (πορνείας) or about fornication (μοιχείας - adultery) or about other renounced sins, he will be convicted: such a one (church) the clergy will not be accepted" 17.
Such an accusation took place in a meeting of the Christian people when a candidate was elected to any church office. The bishop with the clergy present here was obliged to investigate the accusation and if he found it proven, he did not honor the chosen one with consecration. “Investigation” (Ἐξέτασις = inquisitio) of this kind of accusations took place both in the first centuries and in subsequent ones, for example. in the 6th century only before this church tribunal without any participation of the state court and police. 18
“Whoever, by holy baptism, was obliged to marry two times, or had a concubine, cannot be a bishop, nor a presbyter, nor a deacon, or lower in the list of the sacred rank.” 19
“Let him who has accumulated himself not be accepted into the clergy: for a suicide is also an enemy of God’s creation.” 20
Clergymen who despise marriage as something unclean, or who expel their wives under the pretext of piety, are condemned by the Apostolic Canons to be deprived of their sacred degrees: again a completely legal consequence.
“If anyone, a bishop, or a presbyter, or a deacon, or in general from the sacred rank, withdraws from marriage, and meat, and wine, not for the sake of the feat of abstinence, but because of abomination, forgetting that all good is green, and that God, having created man, husband and wife, created them, and thus blasphemes, slanders the creation: either let him be corrected, or let him be cast out” 21.
“Let not a bishop, or a presbyter, or a deacon cast out his wife under the pretense of reverence. If he expels him, he will be excommunicated; and remaining adamant, let him be expelled from the sacred rank” 22.
And here are the rules of marriage discipline for the laity:
“If anyone (forcibly) corrupts a girl who is not betrothed out of necessity (βιασάμενος ἔχοι), he will be excommunicated. He doesn’t deserve to have another personality, but to have that one he himself deigned to have, even if he is poor” 23.
“If any layman, having cast out his wife, takes another, or is rejected by another: let him be excommunicated” 24.
Here are several articles of the primary church code concerning marriage discipline. They are so categorical and relate to such diverse aspects of it that they can be considered nothing other than insignificant fragments of an entire fully established church code of discipline, which at present there is no possibility of restoring 25.
But we don’t need this, because the direction given by this primary code of marriage discipline continued to be steadily maintained in subsequent times: the councils and separately the church fathers, who developed this discipline and as a result gave two new codes: Photius’s nomocanon and the penitential or penance nomocanon, adopted this entire discipline, only slightly modifying and significantly supplementing it. For us, another question is more important: in what relation did this Gospel discipline on marriage stand to the existing civil law on it?
The nomocanon of Photius, which we just mentioned, resolves this issue with such certainty and clarity that nothing better could be required, namely: in a decisive contradiction.
“Fornication (πορνεία), although not approved by civil law, is not prohibited. At least in the XII book of the Digest, 5 tit. fragm. 3 (§. 3) it is said that money paid to a harlot is not required back, for since she is a harlot, it is not shameful for her to take it, although it is shameful that she is a harlot. And the book. ΧΧΧΙΧ, tit. V, fragm. 6 (§. 5) says that even for a shameful deed, a gift is given fairly, for example, to a harlot, and (the gift) has power. And book XLVII, tit. II, phragm. 39 says that whoever kidnaps or hides another’s slave-harlot is not judged, either as a kidnapper of other people’s slaves, or as a thief, for he did it not for the sake of theft, but for the sake of satisfying passion. For if someone even breaks down the doors of a harlot, and others not introduced by him enter there and steal her property, and in this case he is not judged as a thief 26. But also Book ΧΧΧVIII, tit. VIII, phragm. 2 says that the children of a harlot not only inherit from their mother, but also from their mother’s relatives; on the contrary, they also inherit from them.
A woman of the highest class (illustris), who has both legitimate children and those born from fornication, neither during life nor at death can give anything to those born from fornication, as Book VI of the Code says, tit. 57, resolution. 5. He who is born of fornication and a father, they say, does not have, as the 1st book of the Digest titus conveys. V, fragm. 23. But concubinage (cohabitation) is permitted by civil law, and we can, without incurring charges, have as our concubines those in relation to whom nothing indecent is committed, as, for example, it would be the case when cohabiting with the concubine of one’s father or grandfather, or with the daughter of one’s own sister, as Book XXV says, tit. VII, phragm. 1 (§§1 – 3) and XXIII book, tit. II, phragm. 55 (56) and book XLVII. Titus V, fr. 11. Concubines can be freedmen and freeborns of humble origin: for whoever wants to have a freeborn concubine of noble birth as his concubine must publicly testify to this, i.e.
that he wants to have her as a concubine, and not as a wife, otherwise, he has her as a wife, or, if he refuses this, he allows something unlawful in relation to her, but not adultery, since concubinage is recognized by the laws (XXV book. Dig. V tit. phragm. 3. (§. 1). Therefore, in the VI book of the Code, tit. LVII, decree 5 it is said that a free woman, having legally entered into concubinage with a free person, the children born from this connection will be heirs along with the legitimate children; and, briefly speaking, the law in the Code and Novellas treats a lot about those who are born from concubins, namely, about illegitimate (nothis) and natural (naturalibus) children, teaching who they are and how they can be legitimized by the father and when and how much they can receive from their father’s property. And we are our slaves. we can have concubins. For in the VI book of the Code, Tit. IV, Dec. 4 (§.
3) it is said that the concubine of her master until his death, if he did not have a legal wife, becomes noble together with her children and legally receives the peculium that they had at the time of the master’s death: and neither the children, nor the heirs, nor the relatives of the deceased have the right of patronage over her. And book VII of the same codex, Titus. XV Resolution 3 says that whoever had a concubine slave until his death can, while he is alive, do whatever he wants, both with her and with her children, born as it should be, and in a will leave them to another or directly to an heir; if the master dies without saying anything, both she and her children, born as they should, receive freedom, unless the deceased had a legal wife, for a married man cannot have either a free man or a slave in concubinage. But the charge of adultery is also brought against the fornication of a concubine, as says Book XLVIII of the Digest, tit. V, fragm. 11 and 13.
A concubine is a woman who legally cohabits with someone outside of marriage: the less honest one is called a mistress (amica - mistress, παλλακή - concubine 27), as Prince says. L. Digest, tit. XVI, phragm. 144". At present, it is difficult to believe that such civil law was adopted by the famous Patriarch Photius into his Nomocanon; and yet this is undoubtedly so. Such civil law was in force throughout the entire era of the existence of the Church from the beginning to 883, and both Photius and his predecessors had to include it in their nomocanons as codifiers of Church law and reckon with it as shepherds of the Church. They did both. For us, of course, it is more interesting to know how they settled these scores.
History of the so-called Byzantine law, beginning with the legislation of Justinian, and represents nothing more than the constantly lasting struggle of the Christian discipline on marriage with the foundations of ancient Roman civil law and the slow transformation of the latter under the influence and in the spirit of the former.
The Church did not compromise its discipline one step; on the contrary, it gradually increased its demands; civil law, in the same gradualism, fluctuated in its foundations until, finally, it was completely transformed, retaining only very minor elements in the new Christian civil law.
Already in the primary code we notice a categorical provision that, from the point of view of church discipline, no forms of sexual relations are tolerated, except for legal marriage, concluded with the knowledge of the bishop. The only concession was made in favor of the concubinage of a Christian slave with her infidel master, that is, a pagan. In the Nomocanon of Photius we do not see this concession either: here, in parallel to the provisions of civil law cited by us, the following rules of Church discipline are quoted: Apostle. right 61., Coll. Ankyrskogo 20, Neokesar. 8, Council of the VIth Rights. 86, 87, 98; St. Vasily right: 7, 18, 21, 22, 25, 26, 30, 34, 37, 39, 49, 58, 59, 62, 77; St. Gregory of Nyssa is right. 3. 28 Whoever takes the trouble to review these rules will easily see in them a decisive denial of the legality from the Gospel point of view of any kind of conjugal cohabitation, such as concubinage, or the cohabitation of a master with his slave: all these types of cohabitation are sins. Only legal marriage, i.e.
concluded in accordance with civil law and approved by the Church, is honest and does not constitute an obstacle to the honoring of those who are in it with all degrees and titles of the ecclesiastical state, with the exception of episcopacy.
But how did the Church relate to concubinage and other types of premarital cohabitation? There is only one answer: such cohabitations must be dissolved in every possible way or converted into legal marriages. Otherwise, cohabiting couples are excommunicated from church communion. “Fornication (πορνεία), says St. Basil the Great is not a marriage, and not even the beginning of a marriage: Therefore, it is better to separate those who have copulated through fornication, if possible. If they adhere to cohabitation in every possible way, then let them accept the penance of fornication: but let them remain in marital cohabitation, so that no worse will happen” (Rev. 26). We believe that the following passage in the commentary of Theodore Balsamon (12th century) to this rule will not be without interest for the present time: “Such decrees, it seems to me,” he says, “took place when marriage was concluded according to one agreement, 29 but not now, when marriage is accomplished through prayer and the divine communion of the Body and Blood of Christ. For how can those who have undergone penance for fornication and do not partake of the Mysteries be united with each other in marriage?
If you say that after imposing a three-year penance for fornication on them, they did not commit fornication, then you will not encounter any obstacles to allowing them to marry legally after three years... Someone else will ask: if the 3rd chapter of the 37th title of the 60th book of Vasilik defines what he has as a concubine (παλλακευόμενος) a chaste woman is forced to marry her, then this rule determines the separation of those who have committed fornication (πορνεύσαντας)? Decision: “there is a difference between a concubine and a harlot (διαφορά ἐστι παλλακῆς καὶ πόρνης)”: for one, that is, a concubine, is sinful only with the one who has her as a concubine, and is recognized by the law, and the other, since he sins by fornication with different persons, he is not forgiven by the law, on the contrary, he is expelled from the house of the fornicator, as the indicated chapter says.”
The present passage of Balsamon’s commentary is interesting in that it very clearly shows what a profound transformation the influence of the Church brought about both in civil law and in the morals of Byzantium! In the 12th century, it became necessary to clarify the difference between παλλακή (concubine) and πόρνη (harlot)…
Between the rules of St. Basil the Great there is one thing that can give reason to believe that St. the father in one case was tolerant of concubinage. This is the famous 9th rule, which at the end contains the following definition: “a wife who leaves her husband is an adulterer, even if she goes to another husband; but the abandoned husband is worthy of leniency and the woman who cohabits with him is not condemned.”
Commentators unanimously argue that the name “cohabitant” should mean a legal (second) wife, and not a concubine, which in this case the civil law of that time did not prevent the husband from having.
The interpretation is completely correct, although it may give reason to ask: if a legal wife is meant here, then who can doubt that a husband abandoned by his wife has the right to marry a second? Why on earth can there even be talk of some kind of leniency towards him?
“The condescension - as the Holy Father answers this question - will be found in the fact that he will be in communion with the Church” (right 35). What's the matter? – The fact is that, according to the rules of church discipline, entering into a second marriage after the death of the first spouse or after the dissolution of the first marriage on a legal basis is generally associated with the imposition on the second spouse of a two-year penance - excommunication from Holy Communion for two years. It is from this general rule of St. Basil the Great makes an exception in the event that a husband, abandoned by his wife without guilt on his part, enters into a second marriage with another woman: he deserves leniency and is not subject to the penance established for a second marriage.
At the same time, it is clear how far this rule is from a tolerant attitude towards the concubinage of a widower.
While waging a stubborn and continuous struggle against concubinage, the Church at the same time extended its influence wider and deeper on the very method of concluding a legal marriage and on the method of its dissolution or divorce. Both in the Greco-Roman Empire were accomplished with freedom that was amazing for the present time, one might say, without any tutelage from the state. This circumstance was actually reflected in the amazing ease of family morals and their looseness. In return for the state, the Church took custody of both.
The above references to St. Ignatius the God-Bearer and the Apostolic Decrees, which so persistently impose on bishops the duty of care for the marriage of adult children - Christians, especially orphans - by no means remained only simple pia desideria, but expressed the real law of Christian life. No matter how scanty the historical evidence from the primary era of Christian history is for the present time to prove this position, they are, however, so expressive and vivid that they are quite sufficient to convince of its truth.
The Christian lawyer Tertullian testified the following about the church morals of his time: “With us,” he says, “even marriages concluded in secret, that is, not previously announced in the church, are in danger of being considered adultery and fornication and do not in the least escape accusations under the guise of a legally concluded marriage” 30.
Legal civil marriage had so little value in the eyes of the Church of that time. Of no less importance is the following testimony of the same Tertullian: “Is it possible to doubt, ask, think this way and that about whether the one to whom God has entrusted his wealth (i.e., a poor Christian) is worthy of the dowry brought (by his wife)? How can we find enough words to express the happiness of that marriage which the Church approves, the offering confirms, the blessing seals, the angels proclaim, and the Father strengthens! After all, even on earth, sons do not marry correctly and rightfully without the consent of their fathers: what a union of two faithful of the same hope, the same discipline, the same duties! Both are brothers, both are fellow slaves, there is no difference between spirit and flesh. Truly two in one flesh; where there is one flesh, there is one spirit. They pray together, wish together, fast together, teaching each other, exhorting each other, supporting each other.
In the Church of God, both are equal, equal in coexistence with God, equal in cramped conditions, in persecution, in consolation, one and the other do not hide from the other, one and the other do not shy away from the other, both are important for the other; the sick is willingly visited, the needy is supported, alms - without torture, worship - without a doubt, daily exercises without obstacles, not a secret sign, not a reverent thanksgiving, not a silent blessing; Psalms and hymns sound between both, and they mutually compete to see who sings better to their God. Seeing and hearing this, Christ rejoices, and sends his peace to such; where there are two, there He is; where He is, there is no evil one” 31.
The important advantages of church marriage over civil marriage are indicated here: approval by the Church, blessing, God's favor and harmony of souls of the same faith. Such a marriage is more stable and happy.
Roman civil marriage was a private contract concluded by the heads of families, or in general by persons who had children under their authority. State power showed its participation only by legislative regulation of these contracts, by the judiciary in case of violation at the request of interested parties and by police assistance provided in the prosecution of adulterers and kidnappers of women (maidens or married ones). The bride and groom themselves getting married - the object of the contract - seemed to fade into the background. They were negotiated by their superiors - fathers or those who took their place: guardians, tutors, curators, the initial act of the marriage contract - betrothal - was committed in childhood, when the bride and groom reached 7 years of age; A 14-year-old boy and a 12-year-old girl were already considered ripe for marriage. It is clear that the moral element in marriage - the mutual inclination of the bride and groom could not take place here. Family and property interests came to the fore here. Only autocratic ones, i.e.
those who had reached 25 years of age, or were emancipated from paternal authority, as well as widowers and widows, could marry of their free choice, without being constrained by any power pressure.
The conclusion of a free contract (betrothal) and the marriage itself, the most important moment of which was the introduction of the bride into the groom’s house, took place without any participation of state or public authorities. In addition to the interested heads of families related through marriage, only the presence of 7 or 10 witnesses was required to certify the contract and the bringing of the bride to the groom's house.
Dissolution of marriage or divorce had the same private, family character.
“The right to divorce equally belonged to both spouses and in such a way that both together could voluntarily (cousensu) agree to divorce (divortium) or one of them could unilaterally refuse the marriage. Historically, it cannot be clearly traced to what extent the husband, in a marriage in which the wife passed in manum mariti, had a greater right to divorce than the wife. The only certainty is that in such a marriage, under certain conditions, the wife could unilaterally obtain a divorce. No special form was required for the divorce to be valid. Only later, probably by virtue of the Lex Julia de adulteriis, was it prescribed that one of the spouses who wanted a divorce had to declare it to the other in the presence of 7 witnesses from adult Roman citizens. 32 Later, starting with Diocletian, this form consisted of sending a letter of divorce (repudium) 33 . But this, in essence, was only a simple private form, intended to clearly certify the fact of the divorce, since many legal consequences were associated with it.
The state authorities themselves also interfered little in the matter of divorce, as in the matter of marriage. But household members who wanted to see their divorce recognized needed the consent of their parens (parent, head of the family), while the latter’s original unconditional right, according to which he could arbitrarily divorce his household members without asking them, was subsequently abolished” 34.
What is the basis of ecclesiastical jurisdiction in marriage matters?
The civil legislation on divorce, which was included in the Nomocanon of Photius, contains elements of ancient Roman law, which considered divorce as a subject of private law, and attempts by state authorities (Justinian) to subordinate this important moment of marital and family life to their control. The Nomocanon of Photius adopted some provisions of ancient Roman law, mainly formulated in the Digests, and provisions expressed in the Novellas of Justinian.
Here are the most characteristic provisions of the Digest:
“Dissolution of marriages - read in Chapter 4. XIII volume - so unhindered that in the XLV book. The Digest (tit. Ι, 19 ph.) says that if one of the spouses promises to pay a fine if the marriage is dissolved through his fault, then the promise is not valid: for the fine prescribed in such cases by law is sufficient, unless the same fine is indicated in the contract. And the 134th fragment of the same title says that I am illegally negotiating a fine with some woman in case she does not marry me, and I cannot negotiate a fine with my own wife in case she divorces me. The same applies to a woman negotiating with her husband, and Book 3 of the Codex (Justinian) tit. 38 Resolution 2nd says that it is useless to agree on non-divorce and the fine imposed in this case by agreement does not matter” 36
The Nomocanon conveys Justinian's legislation on this subject in the following condensed form:
“The reasons why a husband rightfully sends a divorce to his wife and uses her dowry, retaining full power over him for the children from this marriage, if, of course, there are any, are the following: if the wife knew that someone was plotting against the royal power, and did not announce this to her husband; if her husband accuses her of adultery and proves this accusation; if the wife in any way attempted to kill her husband or knew that others were planning this and did not inform him about it; if she feasted with strangers or washed with them in a bathhouse against her husband’s will; if against her husband’s will she remained outside the house - not with her parents, except in the case if the husband himself kicked her out, in addition to the specified reasons” (Justinian’s Novella 117, chapter VIII, §§ 1–5 and 7.
37 “The wife sends a divorce decree to her husband and uses the prenuptial gift, retaining full power over him for the children from this marriage, if, of course, there are any, (in such cases): if the husband plotted against the royal authority or, knowing that others were plotting this, did not announce this to the royal authority himself personally or through another; if in any way the husband attempted to kill his wife or knew that others were planning this, and did not inform her about it and did not try to prosecute her; if the husband plotted against his wife’s chastity so that she would fall into adultery; if a husband accused his wife of adultery and did not prove his accusation, in this case the husband is deprived of not only the prenuptial gift, but also another 3rd part of the rest of his estate and is subject to the same punishments as the wife should be subject to if accused; if the husband is cohabiting with another woman in the same house or in the same city and, despite the admonition of his wife or others, does not want to leave it behind; - and in this case (the wife) uses another 3rd part of the prenuptial gift, retaining full power over it for the children from this marriage.
So, if, in addition to these reasons, the husband sends his wife a letter of divorce, he will lose the prenuptial gift and another 3rd part of it. If the wife illegally sends a letter of divorce, she loses her dowry and, in addition, is enlisted in a monastery for life and her property is divided like this: the children receive ⅔, and the monastery ⅓; if there are no children, but there are parents who did not agree to the divorce, the monastery receives all the property. The same can be applied to a husband who is illegally divorced on the basis of New. 117th, which says that the penalties for illegal divorces are the same, and the husband is subject to the same penalties as those imposed on the wife” 38.
In connection with this law are the following laws of Justinian, which determine the punishment for adultery.
“The law on corruption, adultery and sodomy is interpreted in Book IX. Codex, tit. 9 and in the book Digest 48, tit. 5, subjecting such criminals to the death penalty (capitale supplicium – κεθαλικὴν τιμωρίαν); It is said here that the charge of adultery is brought not only in the case of corruption of (someone's) lawful wife, but also in case of illegal and impious marriage, and in case of betrothal and concubinage.” 39 These are, strictly speaking, the provisions of ancient law, adopted by Justinian in the Digests and the Code; in his 134 Novella, chapter 10, he softened the punishment for an adulterous wife as follows:
“A wife who has fallen into adultery, after suffering corporal punishment, is confined to a monastery and, if within two years the husband wishes to take her, we grant him the right to do this and cohabit with her without any fear and without damage to the strength of the marriage from what happened during this time. But if the designated time passes or her husband dies before her return, we command her to have her hair cut and dressed in a monastic image and for her to live in this monastery for the entire duration of her life.”40
Regarding these laws, we consider it not superfluous to make the following remark for now.
There can be no doubt that they were published by Justinian under the influence of his Christian view of the sanctity of the marriage union and under the influence of the desire to soften the severity of ancient criminal law, which doomed the adulteress to death. But to what extent forced monastic tonsure is in accordance with the Gospel teaching is, of course, a different question; in the same way, there may also be a question: what is easier - death, or forced languor in a monastery for a woman in the prime of her vitality.
In any case, this criminal measure of retribution for the adultery of a wife was not intended for a spiritual or church court, but for a state one: for neither during the reign of Justinian nor in subsequent reigns was the church court authorized by the state to deal with divorce cases.
Justinian established a law of impunity (sine damno – ἀζημίως) for both parties to divorce, also adopted in the Nomocanon, for the following cases: if the husband is unable to copulate with his wife within three years after marriage and if one of them takes monasticism; if the husband is taken captive and for five years it will not be known whether he is alive (New. XXII, ch. 5 - 7; and New. CXVII, ch. 12) 41.
Only this last law happily took root in the practice of state and church courts, and not only in Byzantium, but also here in Russia.
As for Justinian’s attempt to abolish the right of divorce by mutual consent of the spouses, in addition to the grounds he indicated, this attempt failed. Already Justin II, Justinian's successor, was forced to restore this right of the spouses.
“Before,” he says, “a marriage was dissolved by mutual consent without hindrance, but our father, paying attention to this, prohibited the dissolution of a marriage by consent. We, for our part, having respected the fact that many complained to us about various troubles in family life, said that they hated the marriage, and asked for dissolution, and having learned that even after our convictions to leave unreasonable hatred among each other and return to unanimity and be in good agreement (why would they delay and respond to the request), we cannot reconcile, and (having learned) that some even began hostile actions against each other, so that the children were brought to disagreement, and, considering all (this) unworthy of our time, we decide that it is permissible, as (was) before, to dissolve marriages by consent and not subject those who terminate the marriage to the punishments that were decreed by our father for such a case” 42.
Only later, in a series of persistent legislation of the 8th, 9th and 10th centuries (Eclogue, Prochiron, Vasiliki), the restriction of the right to divorce by consent in the spirit of Justinian, as well as his measures of criminal retribution for the adultery of a wife (i.e., condemnation to lifelong celibacy in a monastery), undoubtedly penetrated into judicial practice, not only of the criminal, but also of the church court.
We believe that it will not be without interest to point out those tricks of the criminal legislation, those inventions of cruel punishments that these codes have now resorted to in order to establish chastity in family life.
In the Eclogue of Leo the Isaurian the following punishment is prescribed for adultery:
“Whoever commits adultery against a husband’s wife, let the adulterer himself be rooted (castrated), because that is why I have been excommunicated (i.e., for causing the separation of husband and wife) and the destruction of children comes and I do not keep the word of the Lord, who teaches that God is one mixture in the flesh... An adulterer will not be separated from his wife, even if there is rooted” 43 .
The Prochiron of Basil the Macedonian surpasses in cruelty the punishments for adultery both the Eclogue and ancient Roman law.
“Even if an adulterer intertwined with his wife, if it happened to him to kill him, he is innocent as a murderer,” we read in one place of Prochiron. 44 “Having committed adultery with her husband with her slave,” Prochiron says in another place, “she herself is beaten and shorn and accepts a cutting of her nose, but she is expelled from the city, she lives in it, and gives away all her property; the slave who commits adultery with her is tormented by the sword” 45.
But what a light punishment, in comparison with these cruel ones, is prescribed for the fornication of a husband: “Having a wife and committing fornication from her,” we read in the Prochiron, “let him be punished for two dozen times of infidelity 46” - and only 47.
We do not have statistical data on how many men and women were castrated, how many had their noses cut off according to the verdicts of the Byzantine Criminal Court on the basis of these laws of the Eclogue and Prochiron. But before us is the significant fact that these laws expressed the last intense attempt of the state power, through its harsh means, to introduce into the life of its subjects the Gospel discipline of chastity and the strong bonds of marriage. In the 10th century, along with the recognition of the church blessing of marriage as a necessary condition for its legality, all marriage and divorce law came under the jurisdiction of the Church.
It goes without saying that such a transfer of jurisdiction over marriage matters into the hands of the Church, which had occurred up to that time with a rather slow gradualness, could not change the nature of the means that the Church had hitherto used in fulfilling its calling to inculcate the Gospel discipline of chastity in the lives of its members: for the foundations of its activities - the canonical norms developed up to this point, remained effective for the following time.
What is the nature of these norms?
They are exclusively of a moral nature and determine the positive and negative measures of the pastoral influence of priests on their flock.
Reading the Apostolic Constitutions on this subject, we can easily notice that in them the bishop himself appears not so much as a boss and judge, but rather as a shepherd, directly delving into the family situation of his flock - spouses, widows, children, orphans...
But this was in the very distant early days of the Church of Christ, when the diocese represented in its numbers such a small community that was easily visible to the bishop himself. Later, when dioceses included parishes and they spread over a space equal to, for example, our counties, such close pastoral supervision for a bishop became unthinkable. Who replaced the bishop in this supervision? He was replaced by the clergy, mainly elders and confessors.
This point in our question is very important, and we allow ourselves to dwell on it with increased attention.
To successfully fulfill the pastoral mission under consideration, the parish clergy must, of course, first of all be an exemplary executor of the Gospel law on marriage. And our (Orthodox, as opposed to Roman Catholic) canon law presents an amazing phenomenon in this regard. By admitting married and single persons to the clergy equally, it draws attention to chastity more than any other qualities in a candidate for choir (priestly) service. His strict requirements in this regard reach the level of petty, at a superficial glance, scrupulousness. Here, for example, are a few rules that apply here.
“Who has taken into marriage a widow, or an outcast from marriage (“pustnitsa” = ἐκβεβλημένην, i.e., divorced from her husband) or a harlot, or a slave, or a shameful one (ἡ τῶν ἐπὶ σκηνῆς) 48 there cannot be a bishop, nor a presbyter, nor a deacon, lower at all in the list of sacred rank (Apostle 18 right).
“If a presbyter gets married, he will be deposed from his rank. If he commits fornication or adultery, he will be completely expelled from church communion and relegated to the category of repentants” (Neo-Caesar pr. 1).
“If the wife of a certain layman, having committed adultery, is clearly convicted of this: then he cannot come into church service. If, after the husband’s ordination, she falls into adultery, then he must divorce her. If he cohabits, he cannot touch the service entrusted to him” (Neoc. 8).
Among the rules of Theophilus Archbishop of Alexandria (385 - 412) there are those that are nothing more than instructions to one of his newly appointed bishops, ordering the correction of some shortcomings in the diocesan system made by his predecessor. Among these shortcomings are the following:
1) About Vista, who was appointed presbyter in Erev, research is appropriate. If he committed violence against a certain woman who was separated from her living husband, then let him not be allowed to be a presbyter, while he, as a layman, should not enter the Church, which usually excommunicates such people. However, let this not be a reproach to Bishop Apollo (predecessor), if he appointed him out of ignorance: for St. The Council (1 Ecumenical Ave. 9) ordered the expulsion of the unworthy, whose crime was exposed after ordination” (right 3).
2) There should be research about Jacob. If he, being a reader (in our opinion, a psalmist), was found guilty of the crime of fornication and was cast out by the elders, and then accepted ordination: then let him be cast out according to his degree, however, according to a thorough investigation, and not on a single suspicion arising from slander and slander. If he is not found guilty, let him remain in the clergy. (right 6).
3) Therefore, Hierax says that no one should be in the clergy if he is accused of fornication; but Bishop Apollo claimed then that not a single accuser had come against him: then let research be carried out about this too. And if some reliable accuser appears, and the crime is proven by the presentation of reliable witnesses, then let him be expelled from the Church. If he is worthy of the clergy and has evidence of his chastity, then let him remain in the clergy.” (ex. 9).
We will limit ourselves to only these examples from the overwhelming mass of similar ones and note as a very characteristic feature of our canon law - the strictest requirement from clergy of perfect impeccability in family life. Church discipline in this regard is strict towards the clergy to the point of rigorism. One can see the clear intention of the ecumenical church legislation to present the clergy as an exemplary class in family relations, that is, a pioneer of strict marital discipline among the depraved Greco-Roman society. Medieval Catholicism, having introduced celibacy for its clergy, did not appreciate the deep importance of the family clergy, which it should be according to the Apostolic Commandment, and did not appreciate this tendency of universal legislation.
A personal example of a good family life is in itself a powerful means of influencing others and naturally causes possible imitation. But the parish clergy and specifically the elders were also invested with the authority of pastoral influence on the installation of their good morals in their flocks. In their parishes they had the same importance that, by original right, the bishop occupied in this regard in his entire community. Without the approval of the presbyter, marriage was not performed, and if this was the first marriage (of a young man with a girl), then without his blessing and participation in the wedding feast. Already the Council of Neocaesarea (at the beginning of the 4th century) ordered the presbyter: “do not feast at the marriage of a bigamist. The bigamist still needs to repent.” What kind of elder would be who would encourage such marriages through participation in the feast? 49 In the above rules of Theophilus of Alexandria we saw an example of a rather impressive measure applied by the elders to the reader James for his offense against the discipline of chastity.
But the main and powerful means of pastoral influence and strengthening the discipline of Christian chastity for the presbyter was private or secret confession. Here the pastoral-healing mission of the Orthodox spiritual father unfolded in all its strength and in very attractive terms in the fight against the ailments of depravity and easy family morals that prevailed everywhere. Rich and very interesting material for getting acquainted with this kind of pastoral activity of the confessors of ancient Byzantium is given to us by its so-called penance Nomocanons.
The most ancient editions of them, decorated with the name of St. John the Faster, Patriarch of Constantinople (VI century), usually consists of two main parts: the rite of private confession and penance, prescribed by the confessor, accompanied by detailed instructions regarding the method and method of their application. And both parts of such nomocanons are striking, first of all, by the characteristic feature that they almost exclusively deal with carnal sins, offering a thorough diagnosis of them and means of healing them.
Such, for example, is the entire so-called interrogative article of the oldest hitherto known rite of confession. As an example, we present the first half of it; the second, in view of the detail of its content, we do not consider convenient for printing 50 .
“O Lord, brother, child, mistress, sister, first of all, how was your virginity corrupted: was it for the sake of fornication, or for the sake of a lawful wife, or for the sake of another, or for the sake of someone who shared through nature? When he speaks again and asks, and with colic he fell to eat his wives, before he conceived his wife, how did he break off and with colic? What if from them a slave and a lot of widows and a lot of married wives get less food, a great skimnitsa and a lot of food? This is the first thing that befits the confession of the one who accepts and has sinned with all his sins; The number is most of all exacted (and) the difference of persons. The essence of the difference is: the slave, the harlot, the widow, the peasant, the black woman and the sanctified - diachia and priest. Whenever you ask him, he also asks about male fornication. To have male fornication (ἀρρενοκοιτία) there are three differences: another to lift from another, which is also false (κουφότερον = the lightest sin), and another to create a graver one; there is a third - the hedgehog of accepting from another and creating with another: this is two more difficult. And when he asks and says whether in the first - the hedgehog is received, whether in the second the hedgehog is to be created or what has been created with something else, torture him: how much wisdom (i.e.
stayed) in that and is there through nature?” 52
That's all the interrogative article of confession. What does she mean? Why is the program of questions so narrow and so persistently repeated? In our opinion, the answer is that private confession in ancient times had the meaning of not only a sacrament that blots out or forgives sins, but was also a moral healer for the prevailing vices of our time. The re-education of humanity, which had decayed in depravity through the introduction of Christian chastity into life - one of the main missions of the Church - found a powerful means in private confession. Experienced and intelligent, at the same time himself impeccable, the confessor, through confession, influenced the improvement of morals incomparably more powerfully and fruitfully than the legislator with his harsh criminal punishments. In his private confession, the confessor achieved this goal more successfully than the legislator and judge because he acted beneficially, first of all, on the best sides of the human soul - the heart and mind.
He met the sinner not as a judge and accuser - turning him against himself, forcing him to defend himself against himself, but as a friend, disposed to open his heart to him and, together with him, to the all-forgiving God, whose mercy is not defeated by any sins. For the rite of confession prescribed: “It is fitting for one who receives confession to look not at the burden or the multitude of sins... but at the one and only mercy of God.” And the person confessing “to be sure that just as the laver cleanses the filth of the person washing, so the person receiving confession bears the entire burden of the sins of the person confessing.” As a result of this, the confessor was further instructed: to question (the repentant) with all quietness and meekness, if possible, to kiss and, and to place the hand of the person confessing on his neck, especially if he sees him down to the ground, because of much sadness and shame he is possessed and immersed.” Any fear in the soul of the repentant of paying for open sin before public opinion and criminal punishment must disappear: for the secret of confession is sacred.
Therefore, it was prescribed, for example: “Wives who have committed adultery and confessed it out of piety or have been exposed in any way (i.e., before a confessor), our fathers forbade them to do it openly (δημοσιεύειν - to make it publicly known), so that we would not give reasons for the death of those convicted: but they commanded them to stand with the faithful without communion until the time of repentance is fulfilled" (Basily the Great rule 34).
The interrogative article should pursue the goal of bringing the sinner’s mind to a clear awareness of the degree of fall from the moral height of chastity that the gospel discipline requires - and arousing disgust for a vice that had hitherto seemed pleasant and was not at all recognized as an abomination.
The second part of the penance nomocanon outlined positive measures for the healing of sins - penances and very detailed instructions regarding the method of applying them.
Two characteristic features are worthy of attention, sharply distinguishing the penance Nomocanons of the Orthodox Church from the Penitentials of the Roman Catholic Church.
1) The severity and duration of penance is determined not by the severity or multitude of sins: but by the mood of the penitent and his spiritual make-up.
2) It is imposed not on the basis of the exact definition of the canons, but according to the reasoning of the confessor, who, it is true, is guided by them, but not literally, slavishly following them.
The penitentials of the Roman Catholic Church consistently pursue the following almost opposite principles:
1) The severity of the sin must correspond to the severity of the penance: the subjective state of the sinner is not taken into account.
2) The confessor follows the letter of the canons in imposing penance.
From here, both penitential disciplines can be briefly formulated as arbitrary (arbitrium = opinion, discretion) and canonical (based on the letter of the canons) 53 .
The confessor is instructed to assign not the penance that he personally finds necessary to give, nor the one that should be prescribed according to the rules: but the one that the penitent expresses a desire to observe.
“And for this reason (after confession) the confessor will raise up (the repentant) and command him to sit down with him and ask: how can you keep the commandment? The dati (confessor) does not want to eat, nor is it proper; but the hedgehog chooses to preserve (the penitent).”
When proposing one or another penance, the confessor is instructed to pay full attention to the moral state of the penitent and to the nature of the sin, and the circumstances of its commission: “It is appropriate to consider well the person, nature, time and place, reason and foolishness, youth and old age... It is possible that even a small sinner, but zealous, can accept the prohibition, for not only the abandonment of the evil, but also the crown will accept; but for the sinner and the unzealous there is little (i.e., prohibition), lest he be consumed by burden and leave everything behind in sorrow.”
These principles of penitential discipline had in practice the significance that the long periods of repentance, determined by the ancient canonical discipline for various sins, including sins against chastity and marriage, were reduced very significantly and the very image of short-term repentance was determined by the individual, or subjective, state of the sinner. Hence, what was required of the confessor of the Eastern Church was not compliance with canonical formal accuracy, as was required of the confessor of the Latin Church, not the judicial obligation to be faithful to the law, but the skill and experience of the doctor in diagnosing the disease and in successfully applying healing remedies to a given patient. Therefore, sometimes this spiritual art was considered directly as an extraordinary gift, as charisma: “Behold, I consider it a gift,” says one of the authors of the nomocanon of the Eastern Church, “what St. Apostle Paul (calls) the distinction of spirits” (τούτο νομίζω εἶναι τὸ χάρισμα, ῷ φησὶ διακρίσεις πνευμάτων) 54 . [More precisely: “This, I believe, is the gift that he (Apostle Paul) calls the discernment of spirits. See: 1 Cor. 12.]
What is the power of this spiritual pastoral healing?
Answering briefly, we must say this: in arousing a clear consciousness of sin and in making amends for it in the complete forgiveness of it by God's mercy.
This view of penance as a means to atone for sin is of enormous importance in matters of divorce law.
Already among the rules of the general Nomocanon we find the following: “Whoever enters into marriage after the taking away of someone else’s (second?) wife will be accused of adultery for the first, and innocent of the other” 55 .
According to the criminal law of that time, an insulted husband could kill such an adulterer with impunity: by virtue of this rule, his guilt is completely atone for by the penance of adultery, and he enters into legal marriage as an innocent one. The penance nomocanons went even further in this regard. In the Penitentiary of St. Theodore, Archbishop of Canterbury († 690), we find the following rule:
“Si cujus uxor fornicaverit, licet dimittere eam et aliam accipere, hoc est, si vir dimiserit uxorem suam propter fornificationem, si prima fuerit, licitum est, ut aliam accipiat uxorem; illa vero si voluerit poenitere peccata sua post V annos alium virum accipiat" 56 .
“If someone’s wife has committed fornication, it is possible to let her go and take another, that is, if a husband lets his wife go because of fornication, if she is the first, it is permissible for him to take another; if she wishes to repent of her sins, after 5 years (of repentance) she will receive another husband.”
The tone of the rule is so firm and categorical that it eliminates the idea of the subjectivity of the view of this only Archbishop: the tone of the law, or generally accepted rule, is felt here...
And what an amazing rule! There is no hint in it of condemnation to permanent celibacy of the accused adulteress, but who washed away her sin with five years of repentance.
We are confident that the defenders of § 253 Art. Spirit. The consistory, a strict zealot for canonical discipline and even scientific accuracy, will bombard us with objections for this reference and the sympathy shown for it. We will try to answer the most important of them.
1) This rule belongs to the Latin Penitential, and not to the Greek, even if penitential, Nomocanon.
2) It is in conflict with the discipline of the general nomocanon of the Eastern Church.
To the first of these objections we respond as follows. The rule in question is Latin only in language and location, but in origin and spirit it is completely Greek, i.e. Orthodox.
That its author (revered as a Saint in Ireland), a missionary and instiller of Christianity among the ancient Britons, was a Greek by birth from Tarsus - this is considered a position that does not raise doubts. That both in his practice and in his penitential he acts as a zealot of the Eastern rite and Eastern Greek discipline - this is clear from his Penitential itself and is recognized by scientists through his research 57 ; that in particular the rule in question is radically opposed to Latin canon law, this is easy to prove by reference to the law. 8 – 9 of the Council of Elvira (306), Arelat (right 10 (314) 58), on the teaching of bl. Augustine, erected by the Councils of Florence and Trent into the unchangeable dogma of canon law on this issue. In general, a pious papist will renounce the rule in question, even if we begin to scientifically impose on him the authenticity of this rule. And God bless him.
That it is Greek in origin is evidenced by the nationality of St. Theodore - its author - and even more - some references with Greek and even our Slavic and domestic codes.
What strikes us in the rule under consideration is, by the way, the categorical establishment of five years as a period for making amends, or extinguishing, for the crime of adultery. Where is St. Did Theodore take this five-year anniversary? He took it not from canonical sources, in which penance for adultery is defined as 7 or 15 years, but from the sources of Greco-Roman law.
Thus, in the Digests, five years is considered a statute of limitations for extinguishing the crime of adultery.
“If five years have passed since the crime was committed,” we read here, “it must be said that the wife cannot be blamed... that a crime, lulled by a continuous five-year period, should not be initiated. The legislator wanted to preserve this five-year period for cases where a husband or wife is accused of lewdness, adultery and pandering” 59 .
It must be assumed that this law did not lose its significance even after the imp. Justinian, since we see him in the Greek text, only with some modification in Prochiron imp. Basil of Macedon (870). Here we read: “Πενταετίᾳ σβέννυται τὸ ἔγκλημα τῆς μοιχείας ἀλλὰ τούτο "(tit. XXXIX, 26). And from here, in an exact translation, this law was included in our Helmsman’s Book, where we read:
“In five years the sin of the adulterer will be extinguished; but we say this about those who sinned with their wife through her desires.” (Ch. 48, gr. 39, 26). [In Russian: “In five years the sin (guilt) of adultery will fade away, but we are talking about those who sinned with a woman according to her will.”]
It is worthy of note that Justinian himself, in his 22nd novella, limited the punishment for a wife accused of adultery or who incorrectly sent a letter of divorce to her husband, only by prohibiting her from marrying for five years, and for the guilty husband from marrying again for one year 60.
It was this civil legislation that, in our opinion, served as the basis for the considered rule of St. Theodora. And, one can assume, not only he, but also many Church Fathers who lived during the action of this legislation, reasoned in this way: if the harsh criminal law, which punished with death a wife accused of adultery during the legal period, considered it possible to grant a complete amnesty if the crime was not declared to the court within five years: then is not the sinner who mourned her sin all the more worthy of such an amnesty in the eyes of a church judge? tears of repentance and good deeds for five years? That Eastern penance nomocanons are generally inclined to shorten certain periods of repentance in view of the sincerity of repentance - we have already expressed this, it seems, quite convincingly. Nevertheless, we consider it very useful to recall here a very important, in our opinion, rule of St.
Theodore the Studite, as an example of such a reduction and as a church law, which it would not be bad for the current church court to remember:
“An adulterer is like a murderer: for, plotting against his neighbor’s wife, he acts with a two-edged sword and commits division (that is, the death of the whole, which serves the married couple). And then as St. Basil the Great defined 15 years (right 58), we (define) the one who has expelled passion to be without communication for two years, observing dry eating and making 200 bows every day” (right 18) 61 .
So, there are quite sufficient reasons to regard the rule in question of Theodore, Archbishop of Canterbury, as the rule of eastern penitential discipline. One can only regret that it has been preserved for us only in this Latin edition, and not in its native Greek. But who knows that a more extensive study of the handwritten Greek editions of the penance Nomocanon than has ever been seen before will lead to the discovery of a Greek prototype of the rule in question? The theoretical grounds for such aspirations are sufficient.
2) But, without contradicting the spirit of the eastern penance Nomocanon, does not this rule contradict the letter and spirit of the general Nomocanon, at least in its Photius edition?
As we have seen, this Nomocanon contains elements of both canonical and civil law. The elements of the latter and among themselves are contradictory: the rule in question does not in the least contradict the elements of ancient law; it is in conflict only with elements of later legislation belonging to the emperor. Justinian and his followers - the emperors of the Isaurian and Macedonian dynasties. At the same time, we should not lose sight of the fact that this later law arose under the influence of church teaching on the indissolubility of marriage. As for the canonical law of Nomocanon, although there is a strongly noticeable tendency in it to defend the principle of the indissolubility of marriage and to deny the legal capacity of a woman divorced for adultery to enter into a new marriage, there is no categorical expression of such a denial.
The absence of such a categorical denial is especially striking in view of only one consequence of marital divorce that is clearly and categorically expressed, namely: a person who marries a divorced woman cannot be accepted into the clergy.
“The priest cannot be a woman, a widow, a slave, or a dancer,” says the 18th Apostle. rule for translating our Helmsman's book. Concluding from here a contrario, it must be said that the “pustnitsa” is not condemned to permanent celibacy, remains in the depths of the Church with the right to full communion even after getting married, but she cannot be the wife of a clergyman, like a second wife.
This is an apostolic rule, the canonical authority of which is indisputable from the point of view of Orthodox canon law.
But, as we said, the tendency to deny the right to marry in a new marriage is inherent in our canon law. The 115th rule of the Council of Carthage reads: “It has been decided that, according to the Gospel and Apostolic teaching, neither one abandoned by his wife, nor one who has been sent away by her husband shall be united with another person, but either so remain, or be reconciled with each other. If they neglect this, they will be forced to repentance. There is a need to ask: may a Tsar’s decree be issued regarding this matter.”
“A wife who has left her husband,” says the 87th rule of the Trullo Council, “if she marries another, is an adulteress according to the sacred and divine Basil (St. Vas. Rules 9) ... He who leaves a legally married wife and takes another, according to the word of the Lord, is guilty of the judgment of adultery.”
And we must admit, of course, that this tendency must always be inherent in the Church, which is obliged to always preserve the law of the Gospel. But how did she act and how should she act in cases of violation of it?
By itself, it could act in such cases only through pastoral measures, namely, by assigning a more or less long period of repentance. But she was not able to deny the legal capacity to marry a repentant sinner or sinner: “it is necessary to ask, so that a royal decree will be issued about this matter.”
So, in our opinion, the rule in question does not represent a direct clear contradiction to the canonical definitions of the general nomocanon.
Of course, a more convincing argument for the position we are defending would be provided by the very facts of judicial practice of the time in question. But we don't have them at our disposal.
Here are briefly those positive and negative measures, determined by canonical norms, that the Church alone applied in pursuit of its task - to introduce the Gospel discipline of chastity into the lives of its faithful members - the flock. With these measures, she entered into the administration of justice in divorce cases.
Its canonical court, now replenished with a wide range of divorce cases, did not and should not change its pastoral character, which always had the goal not to punish crime, but to heal sin; not to torture human bodies, but to heal souls affected by diseases, to heal with mild and reasonable prohibitions. This is how the Church is commanded to look at its judicial power in all cases, not excluding divorce cases, not only by the Gospel, but also by its canonical codes. We have presented some excerpts from these codes. Let us conclude their short list with a general excerpt, borrowing it from the preface of the nomocanon of John Scholasticus, Patriarch of Constantinople, a contemporary of Justinian, not only a canonist, but also an educated lawyer, excellently familiar with the legislative works of Justinian.
“Our Great God and Savior Jesus Christ - gov. he is the disciples and apostles, as well as His Church, the holy bishops and teachers who were with them and after them, who by grace received the commission to righteously shepherd the multitude of pagans and Jews, who had fallen away through the devil’s flattery and tyranny, and again with right thought and faith returned to the King and Lord of glory, did not believe that those who sinned should be subjected to torture, as prescribed civil laws. For this seemed to them a completely absurd and very frivolous attitude, but, on the contrary, they readily exposed themselves to danger, and tried to convert those who had fallen away again.
To those who were also in error and deviating from the right path, like the good shepherd, they rushed without any delay; those who were already ready to plunge into complete destruction were refined in every way to bring them back, with all wisdom and art, cutting off with a spiritual sword that which was completely damaged and rotten, the same that was only upset and spoiled, strengthening with some gentle healings and binding with reasonable prohibitions (penances) and thus, with the grace and assistance of the Spirit, the sick were returned to their original healthy state. For this purpose, so that those who would subsequently be after them could preserve their rulers blameless, the blessed ones, converging at convenient times in one place - during the arrangement of this by divine grace, which gathered them at each council - issued some laws and rules about what should be done and what should not be done, I arranged the life and behavior of everyone: encouraging those who follow the royal path, and those who deviate to the side correcting. So, since in ancient times they were published from different times (St.
Fathers) various laws and rules of the Church, it is natural that the rules were written by them separately - according to the needs that arose in certain times, and not in any order of objects, so it is very difficult to find and collect in them what is contained in the aggregate about any subject. Therefore, having taken the trouble to put together everything that was separately defined at different times... we have made, as I think, a set that is convenient and easy to find rules related to the subject in question” 62.
The view expressed here on the nature and task of the ecclesiastical court was not the personal view of this only famous canonist of Byzantium. Whoever takes the trouble to delve into the depth of the divine canons will inevitably agree with the correctness of this view. This view of the ecclesiastical court was retained in the Eastern Church long after it had already fully exercised its jurisdiction in all matrimonial matters. From the lips of Patriarch Matthias I (late 14th century) we hear, for example, the following definition of the patriarchy as an ecclesiastical judicial institution.
“The patriarchy (as a church-judicial institution) is a spiritual clinic, and let no one who enters it with a sick conscience come out unhealed, but let each ailment receive appropriate healing, whether it is infirm in relation to divine dogmas or due to some other ailment of his” 63 .
Peering into the essence of each divorce “case,” we must admit that the reason for it is the phenomenon of family life, imbued with a completely moral character - civil or criminal elements here are a secondary matter, when they come. This phenomenon is, in any case, a great misfortune, a grief that affects both or one of the spouses, through the fault or without the fault of any of them, and affects the most intimate side of the human being. If there is guilt (treason) here, then it is guilt before one’s friend, betrayal of a friendship sealed by the name of Christ, blessed by His priest. What kind of monetary fines or criminal punishments can be used to overcome this guilt, to wash away this guilt, to heal the cruel illness that has arisen from this guilt? Christ seeks neither one nor the other; through the lips of the priest, he pronounces forgiveness only to the sincerely repentant.
Which court, criminal or civil, is competent to carry out the task of divorce proceedings for Christian spouses? Neither one nor the other: the only competent court for this is the Church.
In any case, historically there is no doubt that from the end of the 9th or the beginning of the 10th century the church court received jurisdiction over all cases of marriages and marital divorces. The position that the Church is the only competent legislator and judge in these matters has become an axiom in the East and West, i.e. throughout the Christian universe. At this point in time, the spread and establishment of Christianity in all European nations falls, and the mentioned axiom receives unquestioned dominance here for a long time.
In the use of his powers, in the use of the gifts of nature, a person must stand under the yoke of the law: it is necessary to come to terms with this precisely in the name of the desire for happiness. On the part of a person, one has only the right to desire and strive for this yoke of the law to be good and its burden to be light.
The Founder of the New Testament Church precisely characterized the laws that He gave her, and the duty of the Hierarchy, which He will appoint as their guardian, must be to vigilantly take care of the effectiveness of these laws, but at the same time to ensure that their implementation does not exceed the measure of human strength, so that the yoke of Christ is not unbearable. And if at present there are voices that sincerely complain about the inconvenience of some laws on marriage, the guardianship over which we have entrusted to the hierarchy, it is its sacred duty to carefully consider these voices and, if possible, soften and weaken their inconvenience.
What in this sense can be done according to the current divorce law from the point of view of our canon law - we will try to bring to the attention of the reader, inviting him not to disparage what we have said so far.
Turning to the current legislation on divorce cases, we must focus our attention on the following points, as they primarily provoke complaints and protests: 1) reasons, or grounds, for divorce; 2) the consequences of divorce and 3) the very procedure for legal proceedings in divorce cases.
According to § 238 of the Constitution. Spirit. Con. “A claim for divorce may be brought on the basis of the inability of one of the spouses to cohabitate in marriage, or for insulting the sanctity of marriage by adultery.”
First of all, a small remark is appropriate about the character given to these divorce cases - this character is civil: the civil nature of these “cases” is indicated by the term “claim”, which is specifically dedicated to them in this § (Compare § 223). But the civil nature of these cases is indicated even more clearly and more persistently in the following § 239, which reads as follows: “A claim for divorce begins with the filing of a request by the spouse demanding divorce to the diocesan authorities with the payment of stamp duty and the attachment of duties” 65.
The reader, we hope, will remember that he came across a mention of this view of divorce cases in our previous articles. This is the view of the Digest, that is, of ancient Roman jurisprudence, with which the Christian Church struggled for so long, a return to which followed in Western Europe as opposition to the Roman Catholic Church, and which is being propagated by some of our publicists at the present time. Wasted work. This view has been applied to judicial practice by our ecclesiastical consistories since 1841; the entire procedural setting of these cases here is completely civil, but only pre-reform (i.e., generally accepted in general civil courts until 1864, before the publication of the Court. Ordinance of Emperor Alexander II).
It is not of interest to explain how this anomaly developed historically; just pointing it out is enough. What strikes the reader in particular unpleasantly is the requirement for stamp duty and duties: from whom and for what are these fees and duties collected? - From the person who suffered misfortune, for his grief... Even in Ancient Rus', such duties had a basis: because then the church court was in charge of these cases in their entirety with all the elements of property and criminal law that came with it. It was legal to charge duties for these items. But at the present time, the Ecclesiastical Consistory must resolutely exclude consideration of these elements that constitute the department of the civil 66 and criminal 67 court, and usually refuses even “to make a determination on the distribution of children between spouses in the event of divorce” 68. Consequently, all that remains for her is to consider family grief that occurred without guilt (in the first case) or from a violation of the Gospel law (in the second).
Therefore, the complete abolition of § 239 seems, in our opinion, one of the real improvements to the current divorce process in the sense of alleviating the burden of unhappy spouses.
The Church Judge, listening to the request (there is no need for it to be written) of the victim of this misfortune and entering into consideration of it, must look at this judicial act of his as one of the pastoral measures, closing a whole chain of previous measures of his paternal care for the action of the Gospel law in the inculcation of chastity in his flock. This is the canonical point of view on the nature of the divorce process.
We leave the first of the reasons for starting a divorce case indicated in § 238 - inability to cohabitate as a couple - without consideration. However, taking into account the ailments of the time, it is impossible not to mention syphilis, as almost equivalent to the previous reason: but here the decisive voice should belong, of course, to medicine.
But with all attention we should dwell on a further reason: insulting the sanctity of marriage by adultery. This crime formula is wonderful and leaves nothing to be desired. The Church court cannot otherwise look at adultery as an insult to the sanctity of marriage. But the narrow content that the Charter of Spiritual Consistories puts into this formula excites justified murmurs and cannot be justified by anything.
Under this formula Ord. Spirit. Con. thinks, as is well known, exclusively of the physiological act of copulation, certified by eyewitnesses 69.
Is there any canonical basis for interpreting the above beautiful formula so narrowly? In our opinion - no and no.
Let us turn to the real law of the Gospel; it reads like this: “[And I say to you:] whoever divorces his wife, except for the guilt of fornication, gives her a reason to commit adultery; and whoever marries a divorced woman commits adultery (... πορνείας ποιεῖ αὐτὴν μοιχευθῆναι, καμήσας μοιχᾶται" (Matthew 5:32, - synodal translation). [Compare the translation by Sergei Averintsev from the critical edition of the New Testament: “... anyone who divorces his wife except because of her infidelity pushes her into adultery, and whoever marries a divorced woman commits adultery.”]
The concept of πορνεία (= “fornication”) is incomparably broader than the concept of “adultery” in the sense given by Or. Spirit. Consistories.
We decline to enter into a philological and patristic interpretation of the term πορνεία, which appears in the Gospel law under consideration, but, as we did before, we will limit ourselves to citing data only from canon law.
From early Christian antiquity we have the following evidence.
In the “Shepherd” of Hermas, the Apostolic husband, we read the following instruction:
“I command you,” says the Shepherd, “to observe chastity; and let no thought enter into your heart about another man’s wife, or about fornication, or about any similar bad deed; because whoever does this commits a great sin. And you always remember the Lord at all times and you will never sin... And I said to him: “If, sir, someone has a wife faithful in the Lord and finds her in adultery, does the husband sin if he lives with her?” And he said to me: “As long as he does not know her sin, the husband does not sin if he lives with her. If the husband finds out about his wife’s sin, and she does not repent, but remains in her adultery, then the husband will sin if he lives with her and becomes a participant in her adultery.” “What should I do,” I said, if the wife continues in her vice? And he said: “Let the husband let her go, and he himself remains alone. If, having let go of his wife, he takes another, then he himself commits adultery.” “Well, sir,” I say, “if the released wife repents and wishes to return to her husband, then should she not be accepted by her husband?
“And he told me: “Even if her husband does not accept her, he sins and allows himself a great sin: one must accept a sinner who repents, but not many times. For for the servants of God there is only one repentance. Therefore, for the sake of repentance, a husband should not, having released his wife, take another for himself. This course of action applies equally to both husband and wife. But adultery does not mean only if someone defiles his flesh; He who does what is characteristic of the pagans also commits adultery." 70
In the Second Apology of St. Justin Martyr († 166) we read the following story:
“One woman had a dissolute husband and was herself formerly dissolute. When she learned the teachings of Christ, she herself turned to a good life and tried to convince her husband to do the same, expounding to him the teachings (of Christ), and instilling in him that for those who do not live chastely and in accordance with sound reason, there will be torment in eternal fire. But the husband continued the same debauchery and by his actions alienated his wife from himself. And she, considering it impious to continue to share a bed with such a husband, who, against the law of nature and justice, sought in every possible way to satisfy his lust, wanted to divorce him; but, respecting her advice, which urged her to endure a little longer, in the hope that her husband would someday change, she forced herself to stay. When her husband went to Alexandria and it became known that there he indulged in even worse things, then she, so that, while remaining married and sharing table and bed with him, would not become a participant in his lewdness and wickedness, she gave him the so-called divorce and left him” 71.
Of these two pieces of evidence, the first is especially important for us. On the one hand, it strictly adheres to the letter of the Gospel law, on the other, it characteristically sets this law off from the adjacent, so to speak, legal views of Roman and Jewish law. According to Roman law, a husband who caught his adulterous wife with her lover could kill both of them with impunity and in any case was obliged to give her a divorce: otherwise he himself was subject to charges of pandering (lenocinium) and punishment for it. According to the Jewish legal view, in adultery, the wife who committed adultery was immediately stoned and, in the same way, the husband, “holding the adulteress,” was considered insane and wicked” (See St. Vas. Great Rights 9). Let us now imagine ourselves, reader, in the position of a Christian of the time of Hermas, under the pressure of these two legal views and hearing the law of the Gospel, which states that adultery is not only a criminal physiological act, but even one clearly expressed voluptuous attraction of the heart.
Не должны ли мы будем сказать, что по Евангельскому закону раз удостоверенное преступное физиологическое деяние и тем более неизбежно влечет за собою развод . However, this is not how the apostolic husband St. decided the question. Erm. Выдерживая строгий взгляд Евангелия на вину прелюбодеяния, он в то же время не опустил из виду и заповедь Евангелия о всепрощающей любви к кающемуся брату: покаявшуюся прелюбодеицу-жену оскорблённый муж обязан простить . Только дознанное непостоянство, ветреность (что и обозначается Евангельским «λόγος πορνείας») есть достаточное основание развода.
The solution to this issue given by canonical legislation is characteristic. In relation to adulterers and adulteresses - the laity, it maintains the point of view of St. Erma; but in relation to the wife of a clergyman - a bishop, a presbyter, a deacon, it requires divorce or deprivation of the priesthood. A strange, at first glance, inconsistency! As if the commandment of all-forgiveness is less obligatory for a priest than for a layman: isn’t it the other way around? Looking, however, at the details of this legislation, we can easily explain the reason for this apparent inconsistency.
“Wives who committed adultery and confessed it out of piety (δἰ εὐλάβειαν) or were convicted in any way, our fathers forbade them to do so openly, so that we would not give reasons for the death of those convicted” (St. Vas. Vel. 34). What high humanity of the Church, which takes into account the merciless state criminal law! In the case of an adulteress, the rule not only spares and protects life, but also states piety...
“If the wife of a certain layman, having committed adultery, is clearly convicted of this: then he cannot come into church service. If, after the husband’s ordination, he falls into adultery, then he must divorce her (send her a divorce - ἀπολῦσαι αὐτήν). If he cohabits, he cannot touch the service entrusted to him.” (Neok. sob. pr. 8). The first half of the rule seems to give reason to reproach the legislator for being excessively scrupulous regarding the reputation of the clergy; but the second completely excuses this scrupulousness. The Church had to take into account the views of the time, valuing the dignity of its clergy, called, as was previously clarified, to introduce the Gospel discipline of chastity, and it pays tribute to these views by ordering the priest unhappy in his marriage to divorce his unfaithful wife. But the spirit of all-forgiving love inherent in her gives the right to him, who loved his fallen wife, to keep with him and, for the sake of cohabitation with her, to resign from the powers of the priesthood.
The presented data lead to the following conclusion: from the point of view of canon law, in the concept of adultery as a reason for divorce, the main attention should be paid not to its physiological reality, but to the moral and psychological consequence with which it was reflected in both spouses. If its consequence was the complete destruction of marital sympathy (affectio conjugalis) in both or one of the spouses: then this firmly established mental fact is a sufficient basis for divorce, even if the physiological reality of adultery has not been sufficiently or obviously proven. On the contrary, where such psychological destruction has not occurred, it is permissible to leave the unfortunate spouses to the healing action of time, even if the physiological reality of adultery has been proven beyond doubt.
This conclusion in the issue we are considering is so important that we consider it not superfluous to support it with some more data from the sources of our church law.
That the second half of it is recognized and Ort. Spirit. Consistory, this cannot be doubted.
According to § 240, “The diocesan authorities, upon receipt of a request for divorce, instruct trusted clergy to admonish the spouses so that they end their disagreement through Christian reconciliation and remain in the marital union. When the exhortations do not achieve their goal, then the diocesan authorities begin the formal proceedings of the case.”
Compliance with this requirement is absolutely mandatory for the court, i.e. and in the case when, from the papers received, he would undoubtedly be convinced that he would have to consider the physiologically real fact of adultery. Even in this case, the court is obliged to use measures of admonition and, since these latter will lead to the goal, is obliged to leave the announcement of this physiological reality without consequences. This means that, according to the thought of the paragraph under consideration, it is not this physiological reality, but the spiritual and moral destruction of marriage that serves as a sufficient basis not only for divorce, but even for a claim for divorce. But, unfortunately, due to the purely formal and civil formulation of the current procedure of legal proceedings adopted in our church court, this view is not consistently pursued until the end of the trial. Not so in the Eastern Church. According to the Helmsman's Book of the Great Church of Constantinople (Πηδάλιον), the admonition of spouses for reconciliation takes place at the very end of the process before the pronouncement of a judicial verdict.
The formula for this Helmsman’s marriage divorce reads as follows:
“Before our humble presiding and the most honest clergy, the most reverent priests and the most honest leaders who sat with us, the most honest Mr. George from the village of N. appeared before everyone, accusing his wife Maria of the crime of adultery. He said that he found her actually desecrating her husband’s bed and actually committing adultery with another. At our request, he also presented reliable witnesses NN, who, under the fear of God and in conscience, testified before everyone about his wife that she indeed did not maintain the promised fidelity to her husband and, having violated her chastity, became an adulteress. So, our humility, having heard this and been convinced, gave movement to this matter. We used for this (that is, the judges themselves during the beginning of the case, and not other shepherds and before the trial - like us) various methods of persuasion in order to convince George to accept his wife again (for this is allowed by divine rules), forgiving her for her fall, since she bitterly repents of this and promises never to do anything like that.
We did all this for quite some time and, however, could not convince him. Therefore, following the saying of our Lord in the Gospel (Matthew 5:32; Matt. 19:7), whoever lets his wife commit adultery commits adultery and, knowing that this reason, i.e., the word of adultery, as the Lord said, is lawful and blessed, in order to separate a husband from his wife, moreover, meaning that something worse does not happen when their further cohabitation, since adultery for the most part gives rise to jealousy, and jealousy to murder - we declare the named George divorced and estranged from his wife Mary according to the saying of the Lord and according to the divine rules of the apostolic and conciliar” 72.
The canonical court is so lenient towards the repentant adulteress and so attentive to the psychological and moral state of the victim of her fall! There is little research about the details of the physiological reality of adultery here: not like in our consistory court.
Meanwhile, the first half of our conclusion, which the current consistory court does not want to acknowledge, has a lot of data behind it in our sources, and moreover, such data that are quite difficult to take into account.
Thus, adhering to the point of view of the consistory charter, it is impossible to justify the Christian woman about whom St. Justin Martyr in her Apology: for she did not bring eyewitnesses to prove her husband’s infidelity. From the point of view of the consistory charter, it is impossible to justify the following view, expressed in 2 Ave. of St. Gregory the Wonderworker: “It is not hard that captive wives were corrupted by barbarians who desecrated their bodies. But even before, the life of some of them was observed, as if they were following the trail of the fornicators, according to the saying of Scripture, it is obvious that her fornicating disposition is suspicious even during captivity, and such should not soon be allowed to communicate in prayers” (Rev. 2).
The physiological fact itself of St. the father does not attach any importance: his crime is measured by a purely psychological measure, to what extent the fact was penetrated, to what extent it was an indicator of the mood of the soul, denoted by the biblical formula: “walking after the eyes of the fornicators.”
But this is the view of St. Gregory the Wonderworker is not alone: on the contrary, it is even more fully revealed in the rules of St. Gregory of Nyssa, in the rules of St. Basil the Great, in the rules of the councils, as far as they deal with the issue of imputation, in our penance nomocanons, so it would not be an exaggeration on our part to say that the point of view of the consistory charter in this case is exceptional, that it is very easy to raise many objections against it, and for it there is no possibility of putting forward anything worthy of respect.
But in this case, what is it based on? How to explain the stubborn attachment to her?
It is hardly necessary to hide that the real motive for this phenomenon is not legal, but moral and political: the desire to make divorce as difficult as possible due to the violation of the sanctity of marriage by adultery and to paralyze an easy attitude towards marital responsibilities.
The motive, of course, is good, but the means chosen are inappropriate: in reality, it leads to the prosperity of polygamy and polyandry, hiding behind legally fictitious monogamy.
Therefore, once this task, alien to the interests of justice, is removed from the church court, there will be no obstacles for it to expand the scope of grounds for divorce, without contradicting canonical principles.
To the extent that the past of the church court can serve as an argument in defense of this position, we will allow ourselves to point out it.
Previously we cited excerpts from the nomocanon on the grounds for divorce established by Justinian 73 . In addition to the reasons listed here, we will present the legislation on this subject of the Prochiron, received by our Helmsman. This legislation completely repeats the legislation of Justinian, supplementing it with the following not devoid of interest - details: “If a husband is in his own house, living in it with his wife, having offended this with another, he will find himself staying in his house, or in the same city, living in another house with another wife, often staying, he will be exposed, and will be taught and punished once and twice, and will be reproached, or from one’s own, or from one’s wife’s parent, or from others, or from some other reliable witness, and such a crime will not remain; it is appropriate for a wife to resolve the marriage for such guilt” 74 .
“If someone like this sees someone mocking the chastity of his wife and sends three scriptures to him, having the testimony of trustworthy men, and according to those three scriptures of testimony, he discovers his tales of acting with his wife, and if in his own, or in the house of that wife, or in the house of an adulterer, or in a banquet, or in the places that are before the city, the power is his men the hand of such a murder, but I am not afraid of any harm for the sake of it; If in another place he finds him talking with his wife, or in church, let him call on three reliable obediences, or he can show that he has found him with his wife, betray him to the tormenting prince about his guilt, who is also knowledgeable of the truth according to the three scriptures of testimony, having found him with such a wife, for this reason, as from this Only adultery is guilty of torment, not a single other inexorable indication. The authorities are men, if they want to speak against their wife and, according to the law, bring guilt upon her” 75 .
Thus, just one conversation between a wife and a man, even in church, following a threefold warning, is considered grounds even for an accusation of adultery.
This word is cruel, the reader will say; and in our opinion, it is not cruel, but completely fair and incomparably more correct in interpreting the Gospel λόγος πορνείας (“the word of adultery”) than our Orb. Spirit. Consistory.
Chizhman, considering these various reasons invented by Byzantine legislators, and wanting to justify them from the point of view of the Gospel law on divorce, put into circulation the idea that these reasons are analogous to adultery, just as physical incapacity is analogous to death 76. The interpretation, in our opinion, is artificial and superficial; and if you look at this legislation from this point of view, then it cannot be of any interest for the judicial practice of the present time. It would be absurd, for example, to dissolve a marriage because a wife, against her husband’s will, talked with a stranger in a church or theater. It’s a different matter if facts like this are looked at as signs or degrees of detection of mental decomposition of the marital sympathy of the spouses. With this view, all this legislation will receive deep meaning and interest for the present time.
In fact, each of the facts of married life indicated here testifies to the more or less destroyed spiritual harmony of the spouses, and precisely due to the invasion of the 3rd person. Thus, they all testify to the complete indifference of one to the suspicious, alarmed state of the other, indifference either reaching the point that one does not want to warn the other about the impending attempt on his life, or to the persistent and deliberate intensification of the alarmed state of the other. The wife, contrary to her husband’s wishes, to spite him, arranges dates with a man suspected by her husband of having a criminal relationship with his wife. But maybe the husband is driven by jealousy in this case? – Hardly: jealousy presupposes love, and a lover would not seek a divorce. This means that if he is looking for a divorce, then his sympathy for his wife has dried up.
In any case, what is brought before the court is a marital relationship, which cannot at all be considered normal, and since we have recognized that the church court is a moral hospital, it must make a thorough diagnosis of this relationship, determine the degree of deviation from the norm and apply appropriate treatment.
In this case, there is no need for the court to either grant the request for divorce or reject it as improperly justified. He can apply an average measure, a temporary one, as a test, namely, prescribe separate living for a certain time. The use of this measure was practiced in our country in the 17th and 18th centuries. But this will be discussed later.
In the present case, we would like to clarify only the position that the church court will remain the strict guardian of the Gospel law on the “adulterous word” as the only fundamental reason for divorce, if we expand the scope of its concept, if it takes into account the cruel treatment of one of the spouses in relation to the other, and frivolity of behavior, and a number of other facts, with the help of which it ascertains the presence of mental aversion or bitterness in the married couple standing before him, making Leaving her in marriage is unthinkable. Then, having examined which of the spouses caused the emergence of such a relationship, he will accuse him of insulting the sanctity of marriage by adultery and will decide on divorce, based on the law of Christ about the word of adultery.
Going into the details of the study, when and how the physiological act of adultery was committed is completely unnecessary and should not be done.
For readers familiar with the method of trial of criminal cases in our District Courts, the formulation of the case we propose will not seem novel, which needs to be strongly argued. The moral and psychological side of the gross physical act under consideration here is always the main interest of the investigation: the court takes into account the smallest facts, circumstances that are very remote in connection with the main event to clarify the mental motives for committing the crime, and the court, with a clear and calm conscience, pronounces a guilty verdict over the stubbornly denying criminal and acquittal if he is aware of the committed act and the presence of material evidence of the commission of this act by the defendant.
In cases of violation of the sanctity of marriage by adultery, this moral and psychological element should be even more valuable in the eyes of the court. For a lack of attention to it can result in evil, worse than which it is difficult to invent anything. It can very easily happen, for example, that the court will leave in force the marriage of persons between whom there is complete mental discord and who cannot stand each other: and should such and such persons be obliged to live together in married life? It is impossible to think of anything more inhumane than such an attitude. This is harsher than the condemnation to forced celibacy: for even animals are not forced to forcibly crossbreed...
The formulation of the case we propose has not only the advantage over the currently practiced one that it more satisfies the goals of justice and understands the Gospel law more deeply and more accurately, but also that it completely frees the presence of the Church Court from contemplating those pornographic pictures that are currently offered by businessmen in divorce cases, and from listening to the pornographic stories of mercenaries - eyewitnesses.
After all, these are fictions, fictions of a dirty nature. And so the clergy, leaving aside the study of reality, which is often filled with deep drama and nothing pornographic, pronounce sentences on the basis of these fictions. We will not hesitate to assert that with the formulation of the case we propose, the church trial of adultery can be conducted with open doors directly for the purpose of moral creation: after all, we are talking about marriage and family - wrecked - and these are the topics of such highly moral dramas, tragedies, novels, familiarity with which is not considered harmful and reprehensible, but, on the contrary, is recommended as an educational means that ennobles and elevates the soul.
With this we could end our discussion of reasons for divorce. But we think that there will be an objection against us from the moral and political point of view, which we mentioned above. By expanding the meaning of the concept of adultery in this way, we will increase the number of reasons for divorce, we will increase the number of these latter, and through this we will weaken the bonds of marriage and shake the principle of its indissolubility.
We could respond to this, first of all, with reference to people who know life better than we do and who claim that the policy of preventing divorce does not achieve its goal - the number of actually existing divorces and adulteries under the action of the Consistory Charter has not decreased at all, that there are many fictitious marriages in which the husband actually cohabits with a concubine, just like the wife with an adulterer, that respect for the sanctity of marriage has not increased, but has decreased, that access in the consistory for divorce cases is possible only for rich people, that in fact, here too it is not the real perpetrators of adultery that are being considered, but fictions, that the judges themselves - their Eminence bishops - complain about the intolerability of the comically false and offensive position in which they are placed by this lie, which is completely permeated with the divorce "case" (in fact, a composed obscene fantastic story), etc.
But exposing the bitter untruths of life is not our calling.
Without abandoning our purely canonical point of view, we respond to the presented objection as follows:
The expansion of the grounds for divorce will undoubtedly lead to an increase in divorces: the mass of divorce cases will increase to such an extent that the formation of a special court will be required: consistories will not be able to cope with this mass 77 . But in the interests of church justice, which is pastoral healing, it is desirable to reveal all kinds of moral ills of the time, first of all, and not to hide and conceal them. During an epidemic, the successful doctor is not the one who, in order to calm public opinion, hiding its true extent, claims that everything is fine in his area, but the one who, without hiding the reality, works himself with all his might and calls for help.
And it is completely in vain to think that the canonical court, with its exclusively moral measures, is weak. Centuries of experience have proven that it is stronger than criminal and civil in influencing family morality. Just give our pastors more scope for action, and do not limit all spiritual power to their statutory services and possibly frequent teaching in sermons and interviews: of course, these services are lofty and beautiful; but one should not neglect the pastoral authority of the priest: after all, he is ordained a presbyter. Organize our church court for divorce cases so that its doors are always open for those who know and do not know how to write petitions, just as they are open in the church for those going to confession.
Let the judges sitting in it, the victim or victim of a family disaster (and not the plaintiff, or his confidant) set out before them the real essence of the case as before the confessor and leave it to the judges themselves to decide the question - to what extent in each given case the sanctity of marriage is insulted, who are guilty of this crime of the Gospel law, who are the accomplices, who are the witnesses, is it possible to continue the marriage, limiting it to the appropriate impressive measure, or temporary separation, or to end marital cohabitation by divorce. When this or that measure of this court is announced, then each moral note (note) against the criminal of the sanctity of marriage will make a due and strong impression not only on the guilty person, but also on people completely outside. The most beneficial and essential task of all justice (i.e. criminal and ecclesiastical) is to ensure that no crime goes unpunished, and not to ensure that the punishment is necessarily cruel. This is the severity of the court, but not cruelty.
And believe that the true church court is very strict, but not cruel 78.
But it is possible, of course, that the expansion of the grounds for divorce and the accessibility of the divorce court will take advantage of not only real misfortune, but also the simple frivolity of both spouses, who are equally flighty and inclined to see in marriage only what some very flighty animals see in it, for example, various butterflies, flies, grasshoppers and the like, combining into mating pairs for very short periods. Wouldn't the change in legislation we recommend serve as a direct benefit for them and as a relaxation on the part of the church court of their vicious inclinations? Isn't it better, therefore, to remain with the old order of things?
We do not consider such an argument to be very strong: for to act in this way means, because of the frivolity of some, to deny justice to others, truly unfortunate ones, whose marriage life was unhappy not because of frivolity, not because of their moral inability to look seriously and deeply at the duties imposed by marriage, but because of some fatal coincidence of circumstances that did not depend on their will. On the other hand, even against frivolous people the pastoral court is far from powerless. After all, he always retains the power to refuse divorce, no matter how clear their mutual marital depravity may be: he ascertains this depravity, condemns it, puts the seal of this moral court on them, reserving, in addition, the power to deny them any communication with them until they learn to have a more moral attitude towards the sanctity of the marriage bond, until they declare by their very actions that they have corrected themselves.
It is only necessary that the church court be precisely a canonical-pastoral court, dealing with violators to one degree or another of the Gospel law, who are to one degree or another guilty of the “adulterous word” in the broad meaning that canonical sources give it, and not with “plaintiffs” and “defendants” looking for their “private or civil right”, and therefore leaving the court with the same mood with which they left litigants from the civil court "win" or "lose" the process, i.e. with very elevated or embittered.
Now let us turn to the question of the consequences of insulting the sanctity of marriage by adultery, or to the question of condemning the perpetrator of this crime to permanent celibacy.
Consequences of divorce at the request of one of the spouses §253 Art. Spirit. Con. depicts like this:
“If it is proven that the person responsible is incapable of marital cohabitation, or that he has violated the sanctity of marriage by adultery, then the marriage is dissolved, and the plaintiff, who was in the first or second marriage, is given the right to enter into a new marriage, and the person responsible is condemned to permanent celibacy, and if condemned for violating the sanctity of marriage, then he is subjected to penance according to church rules.”
Expressed with such decisive unconditionality, the condemnation to permanent celibacy of a person guilty of violating the sanctity of marriage is a feature of Russian church legislation proper of the last century. Before this time, it is impossible to indicate either a positive law or data from judicial practice that would be distinguished by such unconditionality. It is true that there were positive laws and data from judicial practice regarding a wife who was guilty of adultery and was separated from the marriage for this, but the same cannot be said regarding a guilty husband: condemnation to permanent celibacy as a necessary consequence of divorce is not found here. The well-known law of Justinian, adopted in our Helmsman, condemning to lifelong celibacy a wife guilty of adultery, is completely silent about a husband guilty of the same crime: and there is no shortage of evidence from judicial practice indicating that the diocesan court did not condemn the guilty husband to lifelong celibacy, but directly allowed him to enter into a new marriage 80.
You can be sure that there are many examples of such a lenient attitude of the diocesan court towards guilty husbands in our consistory archives.
But for us, more important than these examples is an attempt to theoretically substantiate the admissibility of marriage of a person guilty of adultery - equally husband and wife, belonging to one of the very prominent hierarchs of the Russian Church of the early 18th century, namely Theophan, Archbishop of Pskov, who presented his opinion on this issue as a member of the Holy Synod.
This is a great opinion:
“When an innocent person from his spouse, separated from another for his adultery, received freedom to a new marriage: what then should be done with the guilty person - should he be allowed to seek a new marriage.”
“This question has no place where adulterers were executed by death, as was the case in the Old Testament, but where the most merciful judgment was laid on such people and they, according to some kind of corporal punishment, were left to live, there this question is urgently needed.”
“My opinion about this is this: that it is possible for the guilty person, although not quickly and with difficulty, to allow freedom to a new marriage. The reasons for this are as follows:
“First: for even a guilty person after a divorce is committed 81 is not tied to anyone by the debt of marriage: a wife who has been released for adultery is no longer the wife of her former husband; Likewise, a husband, who was separated from his wife for adultery, is no longer the husband of his former wife, and if the guilty person were, even after divorce, bound by the debt of marriage to an innocent person, then the divorce would not be a divorce, and the two would still be one flesh, and thus the innocent person would have the power and freedom to enter into a new marriage. Since the squalor and the guilty person in the divorce have become nobody’s (nobody’s), why should he not be allowed freedom to remarry?”
“The second reason: if a husband does not disdain to understand for himself a simple fornicator or harlot, they do not forbid her to marry her husband: then why should an adulteress, but already estranged from her first husband, be forbidden to marry a husband who does not disdain to understand her for himself? For the adulteress was still an adulteress to her husband, but she is not guilty of the new one and promises to be a faithful wife.”
“The third reason: by not allowing freedom for a wine person to enter into a new combination, we will force it to become liquefied and constantly be in the misery of the sin of prodigal, if he confesses that he does not have the gift of continence, and the apostolic word: it is better to marry than to become liquefied (1 Cor. 7:9) equally to all who do not have the gift of abstinence, extends as if from sin protective. If anyone says that instead of a worthy execution, a guilty person should be deprived of his freedom to remarry, we answer him that a person cannot execute a person for a sin with an obvious disaster.”
“For the sake of these wines, it seems that it is powerful not to forbid a wine person from a new marriage, but I submit this opinion to a better reasoning that is alien.”
“Even if one were to act according to this opinion, however, it would be proper to do so with difficulty and not soon, so that the fearlessness of adultery and the deliberate search for divorce would not enter between the spouses. It seems that it would be good to impose the following difficulties on a guilty person before allowing a new marriage:
“1) Punish severely on the body or on honor by civil court.”
“2) By the spiritual court, impose explicit penance for a sufficient time, according to reason, and so that the penitent, after fulfilling the penance, receives the Holy Mysteries on a holiday or Sunday himself, and not when the people receive communion.”
“3) A wife to her first husband, or a husband to his first wife, would go with honest people to ask for forgiveness for the sin that tore apart their marriage, not so that the divorce would be abolished (which is no longer possible to do with a new innocent combination), but so that the rest would not grieve for the offense inflicted on themselves.”
“4) Of course, a wine person would wait until an innocent person marries a new marriage, and before this marriage a wine person would not be allowed to marry.”
“5) He who wants to marry a guilty person would know before the marriage that his person was cut off from his first husband for his guilt, and he would confess before the honest persons in front of whom the agreement is being made that he knows the wife whom he wants to understand, knows that she was released from her first husband for adultery, so that he does not disdain to understand her; The same applies to the wife who marries the abandoned adulterer.”
“These difficulties seem to be strong both for the punishment of adulterers, and for the fear of them and others, so that we are very careful from adultery” 82.
A century after this opinion was expressed, the law now in force appeared and was directly opposed to this opinion.
How to explain the reason for this phenomenon? It can hardly be explained by the weakness of the practical arguments of this opinion: they are strong and irrefutable. A more likely explanation is the weakness of theoretical – theological and canonical argumentation. In fact, no matter how ingenious the logical construction of the arch. Feofan, that by virtue of a “complete divorce” the person guilty of adultery becomes a nobody’s, and therefore free to enter into a marriage; it cannot in any way remove from the consciousness the thoughts of adultery of this person, as a result of which the further conclusion remains in full force: “he is no one’s person - this is true, but still an adulterer, and therefore the union of another person with him will not be a marriage with anyone’s person, but a union with an adulterer.”
It is this idea about the indelible nature of adultery as an obstacle to marriage that serves as the basis for the law condemning the perpetrator to permanent celibacy.
And there is no way to refute the canonical validity of this law; for the word of the Lord is clear: he who marries is debauched and commits adultery (Matthew 19:9) and the words of the Apostle: he who cleaves to the filthy woman has one body (with the harlot) (1 Cor. 6:16).
Therefore, joining the opinion of Archbishop Theophan, we will try, in view of the immutability of this law, to indicate the possibility of softening its application on the basis of other, completely canonical considerations and grounds.
At the same time, we ask the reader to remember, first of all, what we said earlier about those purely moral measures of pastoral action that the Church practiced towards repentant sinners in general and in particular - sinners against the Gospel law on marriage.
Let us once again highlight the following principles of this pastoral activity:
1) The Ancient Church applied with all its force the severity of this law only to members of the clergy and candidates for the priesthood. By strength 18 Apost. According to the rules, marriage with a “possum woman” is possible, but only the one who takes her loses the legal capacity of the priesthood, just like the one who takes a widow, harlot, slave or actress.
2) The Ancient Church attached to repentance and penance the meaning of a means that completely blots out sin, no matter how serious it may be.
3) True, for some sins the Church prescribed lifelong excommunication, deserving full reconciliation, that is, restoration of the right to receive communion, only at death: but adultery was not, according to the strictest law, included among these sins, but among less serious ones.
In particular, the power of penance that blots out the sin of adultery is clearly expressed in the following 37th rule of St. Basil the Great:
“Whoever enters into marriage after another man’s wife has been taken away from him will be accused of adultery for the first, but not guilty of the other.”
In view of the great importance of this rule for the issue that concerns us, we consider it not superfluous to present here three commentaries on it by Byzantine interpreters, completely in agreement expressing the idea of the erasing power of penance, that is, destroying for the adulterer the obstacle to entering into a new marriage.” Zonara says: “If someone, having taken a betrothed woman or a wife, owned her, then was deprived of her and, after being deprived of her, entered into cohabitation with another, then for sin with her he should be punished as an adulterer, and for his second wife, if she was free from her husband, he should not be guilty.”
Aristin: “If someone takes a wife who has been given away by another, and then, having released her, legally marries another free woman, then for the first he is guilty of the penance of adultery, and therefore the one who marries a prostitute commits adultery; but for the second I am not guilty.”
Balsamon: “The rule here refers to someone who is legally married or betrothed to someone as a stranger. So, if someone commits adultery, appropriating someone else’s property according to the law of marriage, and is deprived of it with legal condemnation, then marries another, then for adultery he must be subject to penance according to the laws, and for the second wife, if she was free, he will not be responsible. This was determined by the saint regarding those who said that an adulterer should not marry another wife, since he was subject to a criminal trial and could not enter into marriage according to the ancient law that was in force in the days of the saint. Vasily, i.e. before the publication of Vasilik. For even if someone was subject to criminal punishment for adultery, he was not forbidden to marry, and therefore he should not have been subjected to penance. Moreover, such a thing cannot be punished now, when criminal punishment has been abolished and adulterers are punished only by tearing out their nostrils and deprivation of property. And read the 82nd chapter of the 37th title of the 10th book of Vasilik and the 32nd short story of the king, Mr. Leo the Philosopher.
But this, it seems to me, took place when the marriage was concluded under one agreement. Now, when marriages and betrothals are performed with prayer, an adulterer can enter into marriage only by being freed from the penances for adultery defined in 58 rights. this holy thing."
Our Helmsman sets out the rule in question as follows:
“Whoever lets a stranger in, and understands freedom, will accept the prohibition for the first sake: but for the sake of the second he is innocent.”
“Interpretation: If someone understands that a wife has been abandoned by someone else, and then having abandoned her, another woman is free from her husband, he will understand the law, for the first he is guilty of the prohibition of adultery; For the second one I am not guilty.”
One should not lose sight of the fact that this type of adultery, i.e. An unmarried man with a married woman, according to the view of canon law, is almost equated to adultery between a husband and his lawful wife, at least according to the rule of St. we cited earlier. Theodora Studite is equivalent to murder.
Taking into account this canonical view, what should we say about our modern church judicial practice, due to which the adulterer (for clarity - Vronsky) remains completely unpunished and, having abandoned someone else's wife seduced by him (for clarity - Anna Karenina) freely enters into marriage, and the wife accused of a criminal relationship with him - upon the dissolution of the marriage - is condemned to penance and permanent celibacy? Is there uniformity in retribution for crimes that are almost identical? We think not.
In any case, the following retribution of our penance nomocanon seems more equal and fair:
(For Vronsky’s sin) the rule of St. Theodore Studite: “An adulterer is like a murderer: for, plotting against his neighbor’s wife, he acts with a two-edged sword and commits separation (i.e., the death of the whole that serves the married couple). And then as St. Basil the Great determined 15 years, we (determine): for the one who has expelled passion, two years of time to be without communication, observing dry eating and making 200 bows every day” (right 18).
(For the sin of Anna Karenina) rule of the Penitentiary Theodore Bishop of Canterbury: “If whose wife has committed adultery, you can let her go and take another, i.e. if a husband lets his wife go because of fornication, if she is the first, it is permissible for him to take another; if she wishes to repent of her sins, after 5 years (of repentance) she will receive another husband” 83.
In accordance with this, the currently valid §253 of the Constitution. Spirit. Con. It is advisable to change it like this:
“If it is proven that the person responsible (husband or wife) violated the sanctity of marriage by adultery, then the marriage is dissolved and the innocent spouse who was in the first or second marriage is given the right to enter into a new marriage; the person responsible is sentenced to a five-year penance, and the person who participated (the 2nd adulterer) is sentenced to a two-year penance, during which they are not allowed to marry.”
But, guided by such a law, will not our church court come into conflict with the law of the Gospel: in search of a prostitute he will commit adultery - with the law, in the name of which he can only pronounce his sentences?
We answer without hesitation: no, it won’t! He would be in contradiction if he left unpunished the violation of the sanctity of marriage by the adulterer and his accomplice and gave them the right, immediately after they were found guilty, to enter into marriage: then this marriage would not be a marriage, but an adulterous union according to the word of the Apostle: whoever cleaves to the filthy woman has one body with her. But since the adulterer suffered the full punishment assigned to him, he washed away his sin, he ceased to be an adulterer, and the law he had broken was restored in all its force. After all, this is precisely the meaning and purpose of every justice - the restoration of a violated right - with retribution for it. The ancient criminal Byzantine legislator considered the death penalty, the tearing out of the nostrils, or cruel punishment with sticks as sufficient retribution for adultery; The Russian bishop of the 18th century, as we saw above, recommended, as retribution, cruel punishment on the body or on honor by a civil court.” But the church court cannot and should not desire such retribution, especially at the present time.
For even in ancient times, when corporal torture was in full swing as criminal retribution, he found them absurd and inappropriate for the pastors of the church and recommended to them “mild and reasonable prohibitions” as moral measures of retribution, i.e. penance 84. And this is true to the spirit of the Gospel and is completely expedient: for God does not want the sinner to die, but to turn to him and live - I live, however, not in sin, but in liberation from it. The purpose of church penance is for the one who committed the sin to leave him behind, to hate him, to prove in practice this hatred of him: and if he does this, God is strong, according to the faith of the Church, to restore him. Thus, the Church, in the prayer of permission following the rite of confession, remembers Peter, who renounced Christ and washed away the sin of renunciation with bitter tears of repentance, David, the thief, the harlot 85. No other court, neither criminal nor civil, is given the power to forgive sins so unconditionally: this is exclusively the competence of the church court.
No cruel criminal punishment can reconcile the criminal with the legislator, but only church penance. Yes, in most cases criminal punishment embitters the criminal; on the contrary, a reasonable, kind and impeccable confessor in his life, guiding the penitent during penance, is able to achieve the result that the adulterer will love the Lawgiver Christ and the Gospel law he violated, and in his subsequent life, having entered into marriage, he can appear not only as a firm executor of it, but also as a direct confessor, bearing it as the good yoke of Christ, overpowering temptations, enduring adversity.
This is the canonical nature of ecclesiastical divorce jurisdiction. May modern ecclesiastical jurisdiction not be deprived of it. Our state, having taken it away from the church at the present time, will suffer in its body the loss of such a morally stable, firm strength that cannot be compensated by anything, and this is at the present time, a time of vacillation and fermentation of successive, extremely unstable moral and legal ideas... But is penance alone enough, even in the above-determined amount (five and two years)? Shouldn't we also add deprivation of legal capacity to marry? In our opinion, it is enough; let's say more - from a formal canonical point of view, § 253 of the Constitution. Spirit. Con., establishing such a double punishment for one guilt, sins against the canonical principle: do not take revenge twice for the same thing 86. From the point of view of this principle, one thing must be prescribed as retribution for adultery: either penance, or deprivation of the legal capacity to enter into a new marriage.
And once it is recognized that penance is a legal, fair and expedient means of retribution, it is sufficient: another additional one is already unnecessary.
But perhaps it would be fairer and more expedient to choose the second, that is, deprivation of marital capacity?
We don’t know whether there will be supporters of such a choice: it is essentially not advisable, difficult and for many, perhaps, absolutely not acceptable! But let's assume that there are. But then they will have to reckon with the above argument of Archbishop Theophan of Pskov:
“By not allowing the wine person freedom to enter into a new combination, we will force him to become liquefied and constantly be in the misery of the sin of prodigal sin, even if he confesses that he does not have the gift of abstinence; and the apostolic word: it is better to get married than to become limp (1 Cor. 7:9) equally extends to all those who do not have the gift of abstinence, as it protects them from sin. If anyone says that instead of a worthy execution, 87 a guilty person should be deprived of his freedom to remarry, we answer him that a person cannot execute a person for a sin that is an obvious disaster.”
Translating this impressive argument into clearer and more specific language, it must be said: it is impossible to execute a person who, because of poverty, has committed theft, by depriving him of the right to acquire food by honest labor: for this means directly encouraging him to commit the crime for which he was punished.
Taking into account the irrefutable force of this argument and turning again to § 253 of the Constitution. Spirit. Con., we discover in it the following strangeness: it sentences to lifelong celibacy both a person who is certified incapable of marital cohabitation, and a person who is verified to be capable of marital cohabitation: can such a law be considered perfect and not in need of correction?...
But perhaps this is also unconvincing?
Let me tell you the following from my personal observations.
About two or three years ago I happened to be at the Moscow Kalitnikovsky cemetery. Accompanied by one of the priests of the cemetery church, I walked around this cemetery for a long time, looking at its various grave monuments. It was in the middle of May; the weather was wonderful, truly May; The pleasant mood it evoked was not able to overcome even this field of human bones, resting under the green mounds of graves with crosses erected on them, graceful monuments, sometimes buried in flowers and wreaths. These bones rest in peaceful sleep not only in cozy, but sometimes comfortable corners. These corners are visited by grateful relatives; here their tears of sadness, gratitude, and gratitude flow; here, with the incense smoke of the priest, fiery prayers rise to heaven for the granting of a new blissful life to those resting peacefully in these cozy and comfortable corners. Away with despondency, away with hopelessness!
These deceased are temporary settlers here - summer residents, who went here to their dachas, accompanied by dear relatives and friends, or who were blessed and mutually received the dying blessing of the deceased. But then my companion and I approached the edge of a huge cemetery; on the other side of the cemetery boundary, a wonderful panorama of the outskirts of Moscow opened up, but inside, on this side of the boundary, we saw a series of hills, two or three of which were recently filled up. “What are these hills?” – I asked the priest. “These are the graves of babies from the Orphanage,” he answered.
“How many of them are there, under each hill?”
“A lot, but I don’t know how much,” he answered. “Usually, from time to time, they send us several tightly sealed boxes with corpses, and without uncorking, we perform a funeral service and bury them in a common grave.”
“But how do you conduct a funeral service without knowing what’s in those sealed boxes?”
“Every time we are sent a personalized accompanying list of these babies; It’s according to this list that we perform the funeral service.”
This sad story of the priest brought a sad mood to both of us, and we hastened to leave the cemetery...
Since then, new hills have probably been added to the hills I saw. Of course, they, like the previous ones, hide the corpses of babies - the fruits of illegal connections between persons, among whom, without a doubt, were and are those convicted § 253 of the Constitution. Spirit. Con. to permanent celibacy, or only frightened by this law and, not having the gift of abstinence, maintaining a fictitious legal marriage, entered into short-term criminal relationships and entrusted the Educational House with the fruits of these connections to create the hills of the Kalitnikovsky cemetery.
Let these hills serve as material evidence of the unsuitability of the punishment, which consists of condemning to permanent celibacy those guilty of insulting the sanctity of marriage by adultery, who do not, in the words of Archbishop Theophan, have the gift of continence.
The replacement we are projecting does not mean weakening the power of the Gospel law, but only mitigating the punishment for violating it, with the goal of making the yoke of Christ more bearable and stopping the increase in the graves of innocent infant martyrs.
According to the adopted plan, it remains for us to express our thoughts regarding the procedural improvements desirable in the ecclesiastical divorce court. As the reader will see below, it is very easy for us to do this and we will not tire him with the length of our speeches. In view of this, before starting these speeches, we allow ourselves to make even a small digression back to the previous articles, precisely on the following point:
In “New Time” (No. 9425) under the title: “Random Note,” Mr. M. Yankovsky made the following “curious instruction” to our address:
“As noted in No. 9421 New. Time, Prof. Zaozersky, on the issue of the canonical basis for lifelong celibacy of the guilty spouse - a necessary consequence of divorce due to violation of the sanctity of marriage - spoke in a negative sense, and believes that the Church can and should limit its punishment (in cases of adultery) only to penance.”
“It is interesting to point out that the same prof. Zaozersky 20 years ago held diametrically opposed views on the same issue: “Based on the principles of canon law, the Russian Church, as well as the entire Eastern Church, “has always condemned a spouse convicted of adultery to lifelong celibacy upon dissolution of marriage”; the author meant 39 and 37 rights. Basil the Great, which “have been accepted by the Eastern Church as canons in equal force with the rules of the Ecumenical and Local Councils” (Right Review, 1882, book XI, p. 566. On divorce proceedings). And again: “Neither the state power nor the Holy Synod, contrary to the aspirations and rumors about the abolition of lifelong celibacy and the permission of adulterers to enter into marriage, sanctified by church blessing and crowns, will deign to such an abolition and permission: for “in this matter (i.e., in allowing marriage to adulterers) adultery lies,” as Timothy of Alexandria puts it.”
“In this article, Mr. Zaozersky attacked the theses of M. Solovyov’s essay “On the eternal celibacy of a guilty spouse,” published in Legal. Vestn. 1881, which asserted, among other things, that there are no canonical grounds to condemn a guilty spouse of violating the sanctity of marriage to eternal celibacy.”
“Professor Zaozersky can only be welcomed for such a fundamental change in the front: evolution in scientific principles is the first sign of vitality and the guarantee of further prospects for any scientific knowledge, and with it the vital human relations that it feeds. The science of Church law, with its authoritative voice, is increasingly clearing the ground for desirable reforms in our complete misunderstanding of marriage law. And if prof. Zaozersky came to his current view of eternal celibacy through long, painful scientific considerations, he came by setting off on a false route - preconceived views, then this alone speaks for the pure truth and indisputability of the words of Prof. Suvorov, that “Art. 253 Set. Spirit. K. can be abolished without contradicting the Holy Scriptures, without violating the canons, without undermining church discipline and without danger to civil order” (about lifelong celibacy), pronounced 12 years ago (Legal. Vest. 1889, book VIII, p. 515: “about celibacy as a consequence of divorce due to adultery).”
We have cited Mr. Yanovsky’s note in full and consider ourselves obliged to give an explanation regarding it, not so much in defense of our fundamental stability, but in the interests of the very cause we defend. And first of all, we express our sincere gratitude to Mr. Yanovsky for such an attentive attitude to our articles, not only the present ones, but also those written 20 years ago - at the beginning of our professorial service.
The idea was not alien to us to warn Mr. Yanovsky, that is, in the previous article and to establish its relationship to our article: On divorce proceedings. But we refrained from doing this only because we did not think it was possible that any of our readers would be interested in what we wrote 20 years ago. It turned out that we were mistaken. But everything is for the better: now we are forced, without reproach for vanity, to set about establishing the relationship of our present articles to those previously written and thereby more clearly express our true view of the matter, which, perhaps, has hitherto remained not entirely clear to some readers.
The fact is that, in our opinion, Mr. Yanovsky has exaggerated his colors somewhat, exposing so sharply the antagonism between the compared articles.
G. Yanovsky characterizes our current view as follows: “Prof. Zaozersky on the issue of the canonical basis of lifelong celibacy ... spoke in a negative sense, and believes that the Church can and should limit its punishment only to penance.”
Meanwhile, in our last article we wrote: “There is no way to refute the canonical validity of this law”; therefore, we did not fight against the canonical basis of § 253, which is the Law of Christ, in our article, but only against the wording of § 253 of the Constitution. Spirit. Con.
“Therefore,” we wrote following the above words, “joining the opinion of Arch. Feofan Prokopovich, we will try, in view of the immutability of this law, to indicate the possibility of softening its application on the basis of other completely canonical considerations and grounds (p. 78).
Then, having completed this attempt, we wrote at the very end of the article: the replacement we are projecting (i.e., the double punishment to which § 253 unconditionally condemns adulterers) does not mean weakening the power of the Gospel law, but only mitigating the punishment for violating it, in order to make the yoke of Christ bearable” (p. 86).
We would be in decisive antagonism with our previous article or, to use the language of Mr. Yanovsky, we would make a “fundamental change of front” in this case if, having rejected the canonical thoroughness of § 253, we demanded that it be replaced with, for example, a provision: “the condemnation to permanent celibacy is abolished: adulterers freely enter into new marriages at will.”
But we are as far away from such a requirement now as we were 20 years ago.
We weigh the crime of adultery with the same canonical scales that we weighed 20 years ago. But now we act as intercessors only for those adulterers who, having washed away their sins by conscientiously carrying out legal penance and not having - in the words of Arch. Theophan - “the gift of continence”, will then turn to the Church with a request for permission to marry. At the same time, we set off on this feat along exactly the same route with which we set off 20 years ago, defending the canonical thoroughness of § 255, i.e. with the canonical sources of our science (but only with a large number of them), and we are trying to give a technically more advanced edition of this paragraph (which they did not try to do then), namely:
The version of § 253 we now propose has the advantage over the current one that it separates the issue of penance for adultery as a punishment (a function of the judiciary) from the issue of legal capacity to enter into a new marriage (a function of the administrative authority). And such a separation, in our opinion, is very important: for it is possible that another adulterer, having suffered penance and realizing the severity of sin, will so love the Law of Christ that he will not even think of bothering the Church with a request for permission to marry, but will decide and, perhaps, will be able to bear the yoke of Christ to the end and remain celibate. The other, on the contrary, instead of correction, will fall even lower: in this case, the Church will always have the inherent power to extend penance, and at the same time delay the acquisition of legal capacity to marry for the unrepentant.
Finally, the third, having conscientiously suffered penance and having loved the Law of Christ, will declare, however, for example, in the words of Colonel Glebov, that “he feels good health and the build of his body” and cannot continue to remain celibate: such a person can be blessed to enter into a new marriage, but no worse, what will happen - etc.
By transforming § 253 in this way, we give the modern church court the opportunity to vary the degrees of punishment for the same sin, in accordance with the moral state of the criminal, the circumstances of the fall, etc., as the Orthodox penance Nomocanons persistently prescribe to do and which, of course, is completely consistent with justice.
Meanwhile, the current § 253 indiscriminately and unconditionally applies the same measure to every adulterer, without distinguishing either the qualities of the criminal, or the circumstances, or the motives for the fall, which the Orthodox penitential discipline condemns.
If 20 years ago we did not make such a petition for adulterers, but only spoke out for the canonical legality of their punishment, it was not because we followed the “false route,” but simply because we could not then find solid grounds for this in the sources of our science (we admit, due to insufficient acquaintance with them), just as Mr. M. Soloviev could not find such for his essay. Now, after 20 years of our studies in science, delving into its sources according to the directions of the route once given to us, it seems to us that we have found such foundations. However, we are not in self-delusion about their irrefutability, and therefore we turn to the church authorities not with a demand (it must - as Mr. Yanovsky imposes on us), but with a humble request for leniency towards our clients, which it can give without, in our conviction, contradicting either the Law of Christ or canonical Orthodox discipline.
This is the true relation between our articles of 1882 and 1902.
Now we could begin to present our thoughts on improving the church process in divorce cases.
But we have a presentiment that some readers will object to us: isn’t it too late?
As is known, a special commission has been established under the Ministry of Justice on the issue of transferring divorce cases to the jurisdiction of a civil court. Representatives of the spiritual department in the commission are the legal adviser of the Holy Synod, Belevsky, and the assistant manager of the Synodal Chancellery, Grigorovsky. The commission has already begun its studies" 89 .
In our opinion, however, not only is it not too late, but now is even more opportune than before: for it is not yet known what result the commission will come to. But is there any doubt about this: of course, to the transfer of divorce cases from consistories to the department of the civil court?
In our opinion, it is possible. The fact is that she has such a difficult and complex task ahead of her, she will have to face and overcome such difficulties that, perhaps, in the end she will come to the conclusion that it is not worth making such a radical reform in our judicial spheres, that it is better to try to radically improve our one spiritual court and process.
No matter how brave such an assumption may seem, we think that it is not unfounded, and, in any case, we think that we will not serve to the detriment of the commission’s activities if we carry the defense of our opinion to the end. It seems even more so: the commission itself will willingly listen to every new voice, both for the transfer and against the transfer, as long as this voice sounds with a good purpose - namely, how best to help the already painful ailments of the time, for the sake of healing which the reform is proposed.
But are we also designing our reform for some other purpose? - Yes, this will not happen!
A very important reason against the transfer is, in our opinion, the lack of means of moral influence on the perpetrators of adultery in the civil court.
The question arises, in the name of why will a civil judge begin to enter into a mental analysis, into an assessment of the moral personality of the spouses standing before him as defendants, to lift upside down the entire intimate side of their lives, and this in the presence of only secular people - men and women? After all, it is also good if at least one of the litigating parties turns out to be a morally sympathetic, suffering person. In this case, the motive of philanthropy and humanity is able to overcome the feeling of disgust in the judge and steadfastly endure the impudence and shamelessness of a person who has made Don Juanism his calling. But what if before him both sides turn out to be, in their moral disposition, only grasshoppers and butterflies, ready to combine in pairs without any moral constraint? How will he feel in relation to them? On the other hand, for the defendants themselves, what moral authority can a civil judge have in order to reveal their soul to him?
How will an Orthodox priest, for example, feel if his wife accuses him of incapacity? Is there really only one priest? Isn’t it even now, during a criminal trial, that a decent secular person who finds himself in a story that involves a divorce case has to experience severe moral torture when faced with sensitive questions from a prosecutor or lawyer, just like the latter who asks these questions? But this is in a criminal trial, where perhaps a deep life tragedy unfolds before the eyes of the audience? And here, if you please, experience such moral torture for the sake of some knight...
In a church court there cannot be such moral torture: here the judges are priests and confessors, people not of this world, who have no other meaning for the world other than an exclusively religious one: every secular lady, not to mention a commoner, can safely pour out her soul before them: after all, these are not Catholic priests! And our secular world is already accustomed to confessing to them and has complete confidence in their holy keeping of the confessional secret. And they themselves have long listened to all kinds of intimacies... But what is most important: they always have official authority - teachers and judges of the Law of God (after all, it is a well-known fact that in Ancient Rus' it was not anyone else, but the “priests” who issued letters of divorce, even contrary to the prohibitions of their superiors), and they bear a heavy moral and legal responsibility for every attempt to illuminate divorce intimacies in any other way, and not from the point of view of the Gospel and the Law of God; and what obliges secular persons wearing uniforms and tailcoats to do this? Light it as you wish: you have freedom!
They may remark to us: you are in vain to intimidate; throughout cultural Europe, divorce cases are handled by civil justice and everyone is happy. It’s time for us to assimilate this benefit of culture. Right; but the fact is that from the point of view of justice, marriage itself is an act and a purely civil relationship - there is a contract, therefore it is natural for a civil court to establish a violation of this contract, the conclusion of which was determined by the same civil court.
With us now, marriage is not a civil act, but a religious one, concluded in a church through a priest in the name of God. And so, let’s imagine that after some time, one of these church contractors, in the name of God (may it be permitted to use only this formula once for clarity), goes to a civil court, accuses the other of violating a church contract and demands, in the name of civil law, the destruction of this church contract. After all, doesn’t a civil court have the right, from any legal or civil point of view, to answer the plaintiff to such a demand: “You, M.G., came to the wrong place; You need to contact another department where you concluded the contract: but in our department contracts are concluded on other grounds, although similar to yours.” How to overcome this purely legal difficulty? After all, perhaps, we will also have to form a commission to transfer the marriage ceremony itself from a church department to a civil one: then, indeed, everything in our country will be exactly the same as in Western Europe.
But is everyone there happy with these arrangements?
Another difficulty that is worth thinking about and which the commission on transfer must inevitably come across is a purely external one: with the transfer of divorce cases to civil judicial institutions, an increase in the composition and staff of these institutions must inevitably be combined, especially if the conditions for divorce are eased, and this increase in the transfer of new divorce courts will be required more and more.
We do not have accurate data at hand, but we would hardly be mistaken in saying that our civil judicial institutions are overcrowded with cases, that even now our judges are far from sitting idle, that the mass of sworn attorneys and all kinds of petitioners in civil cases is not decreasing, but increasing. What will happen when civil institutions are opened to plaintiffs and petitioners in divorce cases? It seems that the commission will have to present a very impressive estimate.
Of course, in order to achieve a good and high goal, one should not stop at such obstacles. But, on the other hand, there is nothing more natural to pose the question: will these enormous expenses lead to the purpose for which they are brought?
Maybe they will... But... It’s time for us, however, to put an end to our digressions and express the promised thoughts on procedural improvements in the church court.
As we have already noted in one of the previous articles 90, the current consistory process is of a civil nature, created gradually under the strong influence of the former national civil law, which is now almost no longer in force anywhere, and is based on the following sources: 1. Law on the Form of Court of 1723; 2. Military Regulations of Peter the Great and 3. Laws on legal proceedings in cases of crimes and misdemeanors (Vol. XVI, part 2). The formal theory of evidence based on them, abandoned everywhere, causes many very noticeable shortcomings of the consistory process. All this is true. image. elements that do not have the right to continue to exist anywhere other than in an archive or museum.
From a canonical point of view, this entire archaic process not only cannot be defended, but also must be directly abolished, and the sooner the better. Court based on internal conviction and the procedure for legal proceedings according to the Constitution. 1864 are closer to the Orthodox-canonical process 91 than the consistory process still in effect 92.
But as soon as this fundamental defect of the church court is eliminated, it will become not only no lower than the civil court, but also “even more convenient for divorce cases, as imbued with a pastoral spirit, it is not conceivable for the civil court. Pastoral spirit and Consistory! Are these concepts compatible? – the reader will object to us. After all, the Consistory as a court so long ago lost the trust of our secular society (and even the clergy itself), and on the other hand, it itself is so accustomed to its own orders, has acquired so many traditions that even in its updated form, it is difficult for it, as a court, to gain trust in itself, and for society to break the age-old prejudice towards it.
We give full weight to this objection and do not wish to weaken anything in it. The fact is that, when designing the renovation of the church court, we did not intend to leave this court within the walls of the Consistory, but intend to take it out of it, place it in a separate building and as far away as possible. We propose to leave only administrative functions to the Consistory: in the Diocesan Court, it can act through its representative only in the capacity of an accuser.
In the legal proceedings itself, we would like to completely separate the accusatory power from the judicial power, although without establishing a special prosecutor's office.
One can fully hope that our updated Diocesan Court would make it unnecessary to transfer divorce cases to a civil department, and would undoubtedly bring good results for the entire life of the Church; and yet such an update would require no more costs than those required for the projected transfer of divorce cases to a civil department.
These, in general terms, are all our considerations for improving our church diocesan judicial process.
But you are quite brief - perhaps another reader will notice: it would be desirable to know how you will carry out in detail the judicial system and legal proceedings you are designing, on the one hand faithful to canon law, and on the other - to the principles of modern civil justice.
We answer this: it would be very easy for us to do this; but this is completely unnecessary: for this was done 29 years ago by a person incomparably more authoritative than us, namely His Grace Alexy, Archbishop of Lithuania. We have in mind his “Special Project for the Basic Provisions for the Transformation of the Spiritual-Judicial Part,” published in 1873 in the book: “Proposed Reform of the Church Court.”
At one time, due to circumstances, he was not appreciated, and then it was as if he was forgotten. Meanwhile, this project belongs to the number of works of legal literature that should not be forgotten. It is the fruit of deep research in the field of canonical law and domestic legislation before and after the reform, it is the result of comprehensive and deep reflection in appearance, in detail it is so masterfully processed that it seems like a Code, on the drafting of which an entire commission of canonists and lawyers worked. The famous author himself prefaced it with the following modest, brief recommendation:
“Our, or special, project, in our extreme understanding, having adopted the most necessary principles of a new legal process, at the same time does not contradict church rules.”
The time that has passed since its publication has weakened the circumstances unfavorable for an impartial scientific assessment of it, but has not deprived it of its deep not only scientific but also practical interest for the present time.
By appending it in its entirety, we end a number of our articles, believing that if they could bring some interest to our readers; then the work of our unforgettable teacher proposed below will give them high spiritual pleasure.
Part I. On the subjects of spiritual judgment
1) Persons of a spiritual state are subject to spiritual judgment, i.e. clergy and clergy, monastics and novices.
a) in cases of violation of the duties of their title established by church rules and other provisions in force in the ecclesiastical department, as well as those illegal acts for which the laws determine to subject them to responsibility at the discretion of the ecclesiastical authorities (Ust. Ang. Judiciary, 1864, art. 1017);
b) on complaints about insults to honor inflicted on clergy and secular persons (Statutory punishment. imposed by the World. Judges, Art. 130 – 141 inclusive);
c) on mutual disputes that may arise from the use of movable and immovable church property and church income, if these disputes are not based on a written act.
2) Clerical and secular persons are subject to spiritual court in the following cases:
a) about illegal marriages;
c) on certification of marriage events and births from a legal marriage;
and d) in cases subjecting the perpetrator to open church penance.
Part II. On the structure of spiritual courts
3) The spiritual court is carried out by a spiritual judge in a certain part of the diocese, by the diocesan bishop and by the diocesan court - in the whole diocese, by the judicial department of the Holy Synod and the cathedral - in the entire Russian Church.
4) The spiritual judge judges alone; the diocesan bishop judges both individually and with a college of elders; the judicial department of the Holy Synod and the cathedral are judged collegiately.
5) Investigations in cases within the jurisdiction of the diocesan court are carried out by spiritual judges, and in other cases - by clergy specially appointed by the Holy Synod.
6) Prosecutorial supervision, in the form of a special institution, is not established at the spiritual courts.
7) Under the spiritual-judicial institutions there are offices for writing.
Chapter 2. About spiritual judges
8) Spiritual judges are established in certain areas of the diocese to examine and resolve spiritual and judicial matters of lesser importance.
9) Each precinct has a spiritual judge and a candidate for him.
10) Ecclesiastical judges and candidates for them are elected by all clergy and clergy living in the district, and five members from the local zemstvo.
The assumption of secular voters is based on the consideration that the spiritual judge will also judge cases based on complaints from secular persons against clergy.
11) Ecclesiastical judges and candidates for them are elected for three years from persons of presbyteral rank who live in the precinct, have served in the presbyteral rank for at least 5 years, have not been on trial and have not been subject to penalties that would impede election.
12) Of the four presbyters who received the largest number of votes during election, the diocesan bishop approves one as a spiritual judge, and one as a candidate for him.
13) The candidate for a spiritual judge conducts a trial and investigation in the event of recusal, absence, illness and other valid reasons that prevent the spiritual judge from performing judicial duties.
Chapter 3. About diocesan courts
14) In each diocese, separately from the consistory, a diocesan court is established.
15) The diocesan court, chaired by the diocesan bishop, consists of at least three members of the presbyteral rank.
Note. The diocesan bishop may entrust the chairmanship of the court to his vicar, and in cases involving only lower spiritual punishments, to a senior member of the court of presbyteral degree.
The considerations on the basis of which the idea that the diocesan bishop belongs to the duties of the chairman of the diocesan court is affirmed are the following 93.
16) Members of the diocesan court are elected by deputies from the clergy, with the addition of five members of the provincial zemstvo assembly and, on the proposal of the diocesan bishop, are approved by the Holy Synod.
The assumption of secular voters is based on the fact that the diocesan court also has jurisdiction over the laity in certain cases.
17) Of those who received a majority of votes during election, the diocesan bishop presents triple the number required by the state with his opinion about each elected. From those submitted, the Holy Synod approves the number of members required by the state and the same number of candidates for them, who take their place in the event of their retirement or legal absence.
18) Members of the diocesan court are elected for six years.
19) Persons of presbyteral rank in the diocese are elected as members of the diocesan court: a) who have served as a spiritual judge for at least three years; b) completed a course in higher educational institutions; and c) those who have completed a full course of study in secondary educational institutions, if they have served in the priesthood for at least 10 years.
20) The presence of the diocesan court to decide cases must consist of at least three judges.
21) Ecclesiastical judges may be called to meetings of the diocesan court in case of a lack of members, to constitute a full presence; but they cannot participate in the resolution of those cases in which they themselves conducted an investigation or trial.
22) Sessions of the diocesan court, in addition to the cathedral city where the court has its permanent seat, in cases of extreme need can be opened in other places of the diocese.
Chapter 4. About the judicial department of the Holy Synod and about the Council
23) In the Holy Synod, judicial power is concentrated in a special judicial department.
24) The judicial department of the Holy Synod consists of bishops elected by the Holy Governing Synod and its judicial department and approved by the Highest Authority. One of them is called the first present.
25) The presence of the judicial department of the Holy Synod for deciding cases must consist of at least three members.
26) To consider cases of complaints against the verdicts of the judicial branch of the Holy Synod, decided by it as the 1st instance, and for the trial of the members and those present of the Holy Synod, a general meeting of members of the Holy Governing Synod and the judicial branch of the Synod is assembled with the addition of a certain number of diocesan bishops in turn. Such a meeting is called a Council.
27) The leading member of the Holy Synod presides at the Council.
Chapter 5. About the offices of spiritual and judicial institutions
28) The office of the diocesan court consists of a secretary and his assistant, appointed by the chairman of the court, and the required number of hired scribes.
29) The office of the judicial department of the Holy Synod consists of a number of chief secretaries and their assistants, appointed by the head of this department, as required by the state.
Chapter 6. On the internal structure of spiritual and judicial institutions
30) Monitoring the speed and correctness of paperwork in each spiritual-judicial place and maintaining order in court sessions is entrusted to the chairman, or the first person present.
31) Sessions of spiritual courts are either administrative or judicial.
32) Court hearings to resolve cases take place in public. Cases in which outsiders should not be allowed to attend these meetings are determined by law.
33) Each decision of the spiritual court, held publicly, can be published and discussed on the basis of general regulations in force in the state.
34) Members of the judicial department of the Holy Synod and diocesan courts have annually three months of vacant time.
Chapter 7. About orders and reports
35) The rules relating to the internal regulations in spiritual-judicial places are determined by the regulations themselves in the orders approved by the judicial department of the Holy Synod.
36) Reports on the progress of cases in spiritual-judicial places are compiled by spiritual judges for each site, by the diocesan bishop - by the diocesan court, and by the first present - by the judicial department of the Holy Synod.
37) Reports are submitted by spiritual judges to the diocesan courts, and by diocesan bishops to the judicial department of the Holy Synod.
38) A general report on spiritual and judicial regulations is submitted to the Highest View through the Chief Prosecutor of the Holy Synod.
39) Reports of spiritual-judicial institutions are published for general information.
Chapter 8. On the rights and benefits of persons belonging to the composition of spiritual-judicial institutions, and on their responsibilities
40) Ecclesiastical judges and members of spiritual-judicial institutions cannot be dismissed without a request, not only from judicial positions, but also from clergy positions, nor transferred from one locality or parish to others. Temporary removal from office is allowed only if they are brought to trial, and they are not subject to complete removal or removal from office except by court verdicts.
41) Ecclesiastical judges and members of spiritual-judicial institutions receive maintenance according to a special provision.
Chapter 9. On supervision of spiritual and judicial institutions
42) Supervision over ecclesiastical judicial institutions belongs to the highest judicial places in the order of subordination, namely: a) the judicial department of the Holy Synod - over all diocesan courts and b) diocesan courts - over all spiritual judges in the diocese.
Part III. On legal proceedings in spiritual courts
Section I. General rules and jurisdiction
43) The accusatory power is separated from the judicial one.
44) The power of prosecution belongs in dioceses to the spiritual consistory, the dean and private individuals, and in the judicial department of the Holy Synod and in the Cathedral - to the Holy Governing Synod and private individuals.
Note In certain cases and to the extent, the accusatory power belongs to the Synodal offices and the chief priests of the guards and grenadiers, the army and navies (see below Art. 87). The separation of the accusatory power from the judicial power is one of the essential principles of the new process. The obligation to directly participate in the initiation of cases, in orders to search for crimes and prosecute the perpetrators is incompatible with the calling of the court. By interfering in the beginning of cases and authorizing or prescribing certain investigative actions, he can involuntarily formulate an idea about the nature of the act to be investigated or the guilt of the suspected person, and this can easily influence his opinion during the consideration and decision of the case.
Who should be given accusatory power in cases within the jurisdiction of spiritual courts? In cases under the jurisdiction of secular courts, the accusatory power belongs to private individuals, prosecutors and superior officials. Granting private individuals the right to accuse in spiritual court is necessary in certain cases. Therefore, the establishment of special prosecution bodies - prosecutors, given the existence in the spiritual department of superiors who have the essential duty of monitoring the prevention of violations of rules and laws, and prosecuting those who are committed - is completely unnecessary and pointless: the body for the performance of prosecutorial duties already exists. But to which ecclesiastical authorities in particular should accusatory power be granted? The diocesan bishop, according to the Word of God and according to the rules of the Church, is invested with judicial power and must directly participate in court. Consequently, he cannot unite in his hands the accusatory power.
Following the separation of judicial power in the lower instance and its concentration in a special body - in the ecclesiastical judges, the separation of the diocesan court from the administrative spiritual consistory and the establishment of the judicial department of the Holy Synod separately from the Governing Synod, all accusatory power is conveniently and without the slightest difficulty distributed among bodies that do not have judicial power, and is concentrated in the person of the dean, in the spiritual consistory and in the Holy Governing Synod. The main priests, who have clergy under their command, but do not have spiritual authority, should, in relation to the clergy subordinate to them, enjoy all the rights of accusatory power, just like ecclesiastical consistories. But, not having investigators or spiritual judges dependent on them, having their place of residence from most of their subordinates at a very distant distance, they would be very difficult in fulfilling all the duties associated with the accusatory power.
To appoint, for example, an investigation into a regimental priest residing in the Kamenets-Podolsk diocese, it would be necessary for a report to be sent to the chief priest in St. Petersburg, on the basis of which he would make a message to the Kamenets-Podolsk Consistory about the appointment of an investigation. Therefore, the completed preliminary investigation must again be submitted to St. Petersburg for presentation to the Court, and from here again return to the consistory for proposal to the diocesan court. To eliminate these difficulties and, at the same time, to maintain the power of superiors over their subordinates, it seems possible only one of the indicated acts of the accusatory power, namely, the act of bringing to trial to be given to the chief priests in relation to the clergy subordinate to them, for which purpose a genuine investigative case will be presented to them.
An order to begin a preliminary investigation of a clergy subordinate to the chief priest can be made directly by the spiritual consistory at the place of residence of the accused and upon communication from the chief priest, if information about the need for a preliminary investigation reached him before the consistory.
A similar provision should be adopted in relation to clergy subject to the diocesan court, who are in the department of synodal offices, who, like the main priests, do not have spiritual investigators in their department (see below, Article 87).
45) The verdict of the spiritual court is determined only by verification and addition of the evidence presented at the court hearing.
46) Sentences of guilt or innocence of defendants are made according to the internal conviction of the judges, based on the totality of circumstances discovered during the investigation and trial.
47) The verdict of the spiritual court can only be either condemning or acquitting the defendant. Remaining in suspicion is not allowed.
48) Each case will be decided in no more than two spiritual and judicial instances. The verdict of the 2nd instance is considered final and is not subject to appeal.
49) Spiritual-judicial places are obliged to decide cases according to the exact reason of existing rules and laws. It is prohibited to stop the resolution of a case under the pretext of incompleteness, ambiguity, deficiency or contradiction of rules and laws.
50) The review of judicial sentences, by the force of the law itself, by an audit procedure, is cancelled.
51) Every illegal act within the jurisdiction of the spiritual court is investigated in the locality where it was committed and tried, as a general rule, in the spiritual court that has jurisdiction over that locality.
52) In case of a combination of crimes and misdemeanors, the case is considered by the court that has jurisdiction over the most important of them.
53) The following are subject to direct episcopal court:
a) offenses of ignorance and accident, requiring correction and cleansing of the clergy conscience by the hierarchical action of the bishop.
b) general offenses against office and good behavior, not associated with obvious harm and temptation, noticed in a clergyman whose previous behavior was impeccable; and c) complaints brought precisely in order to correct those who have acted incorrectly by archpastoral judgment and edification without formal paperwork. (Const. spirit. cons. art. 165).
The essence of the cases listed in this article leads to the conviction of the need to preserve the court directly of the bishop. The first type of cases subject to this court are offenses of ignorance and accident, requiring correction and cleansing of the conscience by the clergy hierarchical action of the bishop and inconveniently subject to publicity and the forms of ordinary court (Ust. Spiritual Cons. 165). That cases of this kind can be resolved and cleared only by this and no other court - to be convinced of this, it is enough to point out in particular several such cases. Such are, for example, accidents involving the spilling of the Holy Gifts, the loss by a priest of the monstrance with the Holy Gifts, etc. It is obvious that the forms of an open formal court are not applicable to the judgment of these cases; the only possible and appropriate court here can only be the court of the bishop, as the common spiritual father of all priests; not a single priest on his own, nor an entire college of priests can resolve such cases, and a formal court is completely inappropriate here.
The second type of cases subject to this court are generally offenses against office and good behavior, not associated with obvious harm and temptation, noticed in a clergyman whose previous behavior was impeccable (Const. Cons. 165 p.b.). To subject cases of this kind directly to a formal, punitive trial, bypassing the direct bishop's correctional court, would be inconsistent with the relationship of the bishop as the spiritual father of all clergy subordinate to him: when there is neither harm nor temptation from an offense committed by a cleric, whose previous behavior was impeccable, then the bishop has both the right and the duty to correct such a person with his direct court.
The third type of cases that are subject to direct, episcopal court are complaints brought precisely in order to correct the wrongdoer by archpastoral court and edification without formal paperwork (Ust. Cons. 165 p.v.). These complaints obviously relate to insults caused by clergy, and depriving those who consider themselves offended of the right to appeal to the direct bishop's court would mean restricting their rights. In cases of grievances, the legislation gives the offended the right to seek full satisfaction according to the law, or not full, and only some: it does not deprive the offended person of the opportunity to completely forgive the offender. Therefore, to deprive the offended person of the opportunity to seek for an offense not the full satisfaction prescribed by the formal court, but only satisfaction by the archpastoral court, would mean restricting his rights, limiting the choice of means of satisfaction given to him, forcing him to either completely forgive the offender, or demand full retribution, prescribed by the formal court.
54) The spiritual court has jurisdiction over:
a) cases of such insults to honor inflicted by clergy on clergy and secular persons, for which penalties and punishments are defined in articles of the charter on punishments imposed by justices of the peace, 130–141 inclusive;
b) in general, cases of those misconduct by clergy for which lower types of punishment are imposed, namely: 1) a reprimand, 2) a reprimand without being included in the service record, and 3) a monetary penalty;
and c) cases on mutual disputes between clergy and institutions arising from the use of movable and immovable church property and church income.
Note. Monastics and novices in cases listed in this article are tried by the abbot together with the elder brethren, and the abbots of diocesan monasteries are tried in the diocesan court.
55) The following are subject to the diocesan court:
a) cases of reviews and protests against sentences and decisions of spiritual judges;
b) all cases of clergy removed from the department of ecclesiastical judges and not subject to trial by the Holy Synod; And
c) all marriage cases and cases of crimes and misdemeanors subjecting the culprit to open church penance.
56) The following are subject to the judicial department of the Holy Synod:
a) cases of reviews and protests against sentences of diocesan courts; and
b) all cases about the abbots of stauropegial monasteries and synodal churches, about members of spiritual consistories, diocesan courts and synodal offices, about the main priests of the army and navy, guards and grenadiers, and about persons of the episcopal rank.
57) The following are subject to the Court of the Council:
a) cases of reviews and protests against the verdicts of the judicial department of the Holy Synod; and
b) all matters concerning the members and those present of the Holy Synod.
Section II. On the procedure for legal proceedings regarding persons of spiritual status
Chapter 1. On judicial proceedings directly by the bishop
58) In cases subject to direct episcopal court, the diocesan bishop summons the accused, examines his conscience and releases him to his place, either only with pastoral admonition, or imposes a decent penance with its passing on the spot, or in the bishop's house for up to two weeks.
59) Direct episcopal legal proceedings are not carried out publicly.
60) A person brought to the direct episcopal court on charges of misconduct against office and good behavior, first before the episcopal court, may ask for a formal trial.
61) Complaints are not allowed against the bishop’s sentences, decided in this court order, and such cases are not included in the service records.
Chapter 2. On legal proceedings before spiritual judges
62) The spiritual judge begins to examine the cases within his jurisdiction:
a) according to the instructions of spiritual consistories and according to messages from the dean;
b) according to reports from secular authorities;
c) on complaints from persons who have suffered from a criminal act, and on claims from persons and institutions that consider their property rights to be violated; And
d) directly, for criminal acts personally observed by him, subject to prosecution regardless of complaints from private individuals.
63) In all cases that arise from complaints from private individuals and can be terminated by reconciliation, the spiritual judge tries to reconcile the parties, and only in case of failure delivers a verdict or decision.
64) Inspections and other inquiries necessary in cases heard by a spiritual judge are carried out either by the judge himself, or, on his instructions, by the candidate.
65) The spiritual judge examines all cases verbally and, after listening to the parties or their attorneys, pronounces a verdict, which he enters into the book or protocol established for this purpose.
66) The verdicts of a spiritual judge in cases of misconduct, for which the law defines only comments, or reprimands without being included in the service record, or a monetary penalty of no more than 3 rubles and a decision on property claims of no more than 20 rubles, are considered final and cannot be appealed. Reviews and protests are allowed for all other verdicts and decisions.
Chapter 3. On legal proceedings in collegial spiritual-judicial institutions
Section 1. About the preliminary investigation
67) The spiritual investigator begins the preliminary investigation only in accordance with the instructions of the spiritual consistory, or the Holy Governing Synod.
68) Synodal offices and chief priests, in the event that they perceive the need for a preliminary investigation of the clergy in their department who are subject to the jurisdiction of the diocesan courts, report this to the local ecclesiastical consistory.
69) The orders of the spiritual consistory on the preliminary investigation are not included in the consideration and approval of the bishop, who has the right to preside over the court in this case.
This provision is important for clarifying the idea that the bishop presiding over the court in this case does not take part either in the initiation of cases or in orders to investigate crimes. All these actions and orders come from the consistory and may either not be subject to episcopal approval at all, or they may be approved in dioceses where there are two bishops, diocesan and vicar, by the one who will not preside over the trial in this case.
70) To prevent the accused from evading the investigation and trial, the spiritual investigator may take the following measures: a) taking away a signature on not leaving the place of residence; b) bail; c) taking bail and d) in the most important cases, personal detention.
71) The spiritual investigator may be removed, for legal reasons, by both the accused and the person who filed the complaint.
72) Inspections, searches and seizures are carried out in the presence of witnesses.
73) The spiritual investigator interrogates witnesses and knowledgeable people under oath, except for those rejected for reasons specified in the law, and exempted from the oath by law.
74) The spiritual superiors, by whose order the investigation was launched, the person who filed the complaint, and the accused have the right, directly or through authorized persons:
a) be present at all investigative actions and consider the actual investigation, without, however, stopping the course of the case;
b) provide evidence and
c) remove witnesses and knowledgeable people for legal reasons.
75) The preliminary investigation, which the spiritual investigator recognizes as completed, is presented to him by the spiritual institution according to whose instructions it was begun.
76) For incorrect actions during the investigation in cases specified by law, persons participating in the case may bring private complaints to the court that has jurisdiction over the case.
77) The filing of a complaint does not stop either the investigation or the execution of individual investigative actions, unless a court order follows.
Section 2. On bringing to trial and terminating cases
78) The ecclesiastical consistory, having received the investigative file, if it recognizes that it was carried out correctly and does not require additions, makes a conclusion either to terminate the case, or to change jurisdiction, or to bring the accused to trial.
79) The conclusions of the consistory on the termination of the case or on a change in jurisdiction are proposed to the diocesan court, on which the further progress of the case depends.
80) Victims may complain to a higher court about the termination of a case.
81) The consistory, having recognized that the accused must be brought to trial, draws up an indictment and submits it to the diocesan court.
82) The indictment indicates: the essence of the case, the grounds for the accusation, the type and type of the criminal act.
83) With the indictment, the investigative file and a list of persons who, in the opinion of the consistory, should be summoned to the judicial investigation are submitted to the court.
84) All actions of the consistory indicated in this department are not subject to the consideration and approval of the bishop who has to preside over the court in this case.
85) In cases involving clergymen in the department of synodal offices and chief priests who are subject to the jurisdiction of diocesan courts, the right to bring them to trial belongs to the synodal offices and chief priests.
86) In cases involving persons within the jurisdiction of the judicial department of the Holy Synod, the right to bring them to trial belongs to the Holy Governing Synod; and in cases within the jurisdiction of the Council, the right to bring it to trial belongs to part of the members of the Holy Governing Synod and the judicial branches of the Synod, who are therefore no longer part of the council meeting on this matter.
Section 3. On the procedure for production
87) Cases in collegial spiritual-judicial institutions begin according to indictments transmitted by the subject spiritual authority.
Note An indictment may be presented to the court without a preliminary investigation, if, due to the simplicity and clarity of the case, the spiritual authority concerned recognizes this as possible.
88) A copy of the indictment is handed over to the accused, allowing him to indicate who he considers necessary to summon to court for judicial investigation, and who he elects as his defense attorney.
89) The accused and his defense attorney may try the case in the registry of the court under proper supervision.
90) The summons to court of witnesses required by the parties is mandatory for the court only in those cases specifically specified by law. But the court does not have the right to refuse to question witnesses presented by the parties in person at the court hearing if they were questioned during the preliminary investigation.
91) In cases initiated by complaints from private individuals, the person filing the complaint is notified of the entry of the case into court.
92) In fulfilling the duties of the prosecution before the court, the spiritual consistory acts through its secretary, and the Holy Governing Synod uses the assistance of the synodal chief prosecutor and the officials subordinate to him.
The establishment of non-direct execution of the duties of the prosecution before the court by the institutions in which the accusatory power is concentrated - the consistory and the Holy Governing Synod, is caused primarily by the consideration of the need to protest against judicial verdicts. Of course, the consistory could, without inconvenience, support the prosecution in court through one of its members. But then, if the accused disagrees with the court verdict, it would be inconvenient to grant the right of protest to him, as a subordinate to the chairman of the court - the bishop. Not to introduce a protest at all into the spiritual court would mean giving one side, namely the accused, more rights than the other, the accused. Thus, to avoid this inconvenience, it seems possible for the consistory to assign the right to directly support the prosecution before the court to its secretary, who is subordinate to the Chief Prosecutor of the Holy Synod, and can exercise the right to protest against the court verdict, presenting it to the Chief Prosecutor of the Holy Synod.
Synod for proposal to the judicial department of the Holy Synod.
The Holy Synod does not have this inconvenience. A member of the Holy Governing Synod is not subordinate to the judicial department of the Synod and could both support the accusation and exercise the right to protest against the court verdict. But here the assistance of the Chief Prosecutor is important due to other considerations: the Chief Prosecutor of the Holy Synod, as a person invested with trust from the Supreme Power, may need information about the progress of the court case in the spiritual department. Placed close to the judicial department of the Holy Synod, having the right both directly and through officials subordinate to him to support the prosecution in the judicial department of the Holy Synod, he will have accurate information about all the most important cases in the spiritual court. And from the protests of the consistory secretaries he will receive information about the progress of cases in the diocesan courts.
93) The judicial investigation begins with the reading of the indictment.
94) The presented evidence is verified and supplemented at the court hearing: a) by considering the original protocols and other written and material evidence and b) by taking testimony from the defendant, knowledgeable people, witnesses and persons participating in the case.
95) Knowledgeable people and witnesses, before questioning them, are sworn in at the court hearing, if they are not sworn in by the spiritual investigator during the preliminary investigation.
96) The prosecutor, on the one hand, and the defendant or his defense attorney, on the other, enjoy the same rights in court proceedings. Both the prosecutor and the defendant, his defense attorney and the victim of the crime are allowed to take part in interrogations and debates in court. The direction of interrogations and debates belongs to the chairman of the court.
97) Debates in court consist of speeches and explanations of all parties involved in the case. The last word in court always belongs to the accused or his defense attorney.
98) The court verdict must be immediately preceded by the raising of questions arising from the merits of the case.
99) In cases in the diocesan court decided under the chairmanship of the bishop, the bishop’s vote has decisive power.
The need to adopt this particular method of resolving legal cases in the diocesan court is based on the clearest and most obvious considerations. a) The diocesan court pronounces sentences on deprivation of holy orders and other rights and benefits that are granted to clergy only by the bishop. If we accept the method of resolving cases by a majority vote, then it may turn out that the presbyters will award deprivation of rights that were taught not by them, but by the bishop: there is only one bishop in court, and two or more presbyters, the majority of votes may be on their side. b) The bishop, as we noted above, in relation to the clergy subordinate to him, takes the place of the father, from whom all the clergy of the diocese received their existence as clergy. And with such mutual relations, relations of equality on which a decision by majority vote is based are impossible. c) The practice of the Orthodox Church testifies that presbyters under bishops always had only an advisory voice.
Presbyters and other clergy gathered under the bishops; but this meeting, both in essence and in form, was different from the patriarchal and metropolitan synods. There bishops, by their very rank and title, are members of synods; meanwhile, here the very choice of members of the episcopal council depended on the discretion of the bishop. There, following the example of ancient councils, matters were decided by a majority vote; in the episcopal council the principle of majority vote was never used; and the bishop had the casting vote. For these reasons, the opinions of the members of the judicial presence of the diocesan court, with whom the opinion of the chairman, the bishop, agrees, of course, receives decisive force. In case of disagreement, the decisive power will belong to the opinion of the chairman - the bishop.
100) In all other cases, if, when deciding a case, the votes of the judges are divided into two or more opinions, the one that combines the most votes is taken as the basis for the verdict; if they are equal, preference is given to the opinion adopted by the chairman of the court, and if opinions are divided in such a way that the chairman’s vote cannot give an advantage, then to the opinion of equal number of votes that is more lenient towards the fate of the defendant.
101) The court determines the punishment for each crime, in the rules and laws for that crime exactly prescribed. But the court is given the right, based on circumstances that reduce guilt, to mitigate the punishment within the limits specified by the rules and laws.
102) The essence of the verdict is announced immediately in a public court hearing.
103) A sentence against which, within two weeks from the date of announcement, there was neither a protest from the prosecutor nor a withdrawal from the defendant or his defense attorney, is considered to have entered into legal force.
Section III. On the procedure for legal proceedings in matrimonial and other cases subjecting the perpetrators to open church penance
Chapter 1. On the procedure for proceedings in cases of illegal marriages
104) Of the cases of illegal marriages, some are carried out only in the spiritual court, others in the spiritual and criminal courts.
105) Cases about marriages of persons who, after the dissolution of a marriage, are forbidden to enter into a new marriage, and about marriages of monastics, as well as those ordained to the priesthood or deaconate, as long as they remain in this rank, unless deception or forgery was used for this purpose, are subject to one spiritual court and are carried out in a general manner according to the rules about legal proceedings for crimes of clergy (Const. Cons. 217. Consolidated Law. Vol. X. I, 37, paragraph 4.6; Code of Laws. 1569; Judgment. Ordinary Edition of State Chancellor. 11, 375).
106) Cases of marriages concluded through violence, deception, or the insanity of one or both spouses are brought before the spiritual court after the end of the criminal trial against the perpetrators to decide on the validity or invalidity of the marriage, and to determine the responsibility of the clergy who performed the marriage (Constitutional Consist. 218; Constitutional Criminal Court. 1012; Definition of the Holy Synod February 28, 1864 No. 354).
107) Cases about polygamy, about marriage in unauthorized degrees of kinship or property, about the prohibited marriage of Christians with non-Christians, about the fourth marriage, about the marriage of such persons of clergy who, according to the rules of the Church, are prohibited from entering into marriage if deception or forgery was used for this, and about marriages of persons who have not reached the legal age of majority, or who have more than 80 years of age - they will be decided first in a spiritual court and, after the end of the spiritual trial of the guilty, they go to a criminal court (Ust. Consist. 219 - 228; Ust. Ang. Judgment. 1013 - 1015).
108) In all the cases listed in the previous article, the spiritual court will decide questions about the event of a marriage declared illegal, about its legality or illegality, validity or invalidity, about the responsibility of the perpetrators according to church rules and in general about the church consequences of such marriages, as well as about the responsibility of the clergy who performed the marriage.
Chapter 2. On the procedure for processing cases of divorce
109) Cases for dissolution of marriages are not initiated except by requests of the spouses seeking dissolution filed in the proper diocesan court.
110) Upon requests for dissolution of marriages due to the sentencing of one spouse to punishment, coupled with the deprivation of all rights of the estate, the diocesan court issues to the person asking for dissolution a certificate of the need for an original court verdict, or a copy certified from it, in order to obtain this document from the court and, upon consideration of it, decide the case. (Civil Court Regulations 452 – 455).
111) Upon requests for the dissolution of marriages due to the unknown absence of one spouse, the diocesan court, through one of its members or a spiritual judge, with the assistance of the police, carries out an investigation into the missing person and will decide the case. (Constitutional spirit. cons. 233 – 237; Statutory law. vol. X, 1, 57 – 59. Statute of legal proceedings of citizens. 1452 – 1457; Statutory legal proceedings. 454 – 456. Comparative law. Senate of May 18, 1871, Collected legislation. No. 898).
112) Upon requests for dissolution of marriage due to the inability of one spouse to marry, or because of violation of the sanctity of marriage by adultery, the chairman of the diocesan court, before any judicial action, instructs the spiritual fathers of the spouses to admonish them so that they remain in the marital union (Const. Cons. 243).
113) If the admonitions of the spiritual fathers are unsuccessful, new admonitions are made in the court itself before the start of the trial of the case. The court takes measures to induce the parties to reconcile both during the proceedings and at the end of the proceedings, and only if they are unsuccessful does it make a decision.
114) Spouses – the person seeking divorce and the person responsible must appear in court in person; attorneys are not allowed.
115) Cases of divorce for these two reasons are carried out behind closed doors.
116) Persons declared incapacitated, and, if necessary, seeking divorce for this reason, are certified in the presence of a medical board, which informs the diocesan court about the result of the examination (Const. Cons. 247).
117) At the beginning of formal proceedings on the dissolution of a marriage for insulting the sanctity of it by adultery, the responsible person is given a certified copy of the petition and a day is set for the plaintiff and defendant to appear in court for the settlement.
118) The settlement begins with the reading of the petition, the content of which requires explanations from the defendant, and then consists of the explanations of the parties.
119) Witnesses not withdrawn by the parties are interrogated after they are sworn in in court, and the evidence and explanations presented are subject to full consideration by the court (Constitution Cons. 248 – 256).
The process of divorce cases due to adultery, which we are designing, almost literally agrees with that currently used in the Greek Church of the Patriarchate of Constantinople. The process used there is described in some detail in the paper issued to the person seeking divorce, and precisely as follows: “Under the chairmanship of our humility, in the presence of the most honest clergy, the most reverent priests and the most honest officials (ἀρχόντων), the most honest Mr. George appeared before everyone and accused his wife Mary of the crime of adultery. He said that he found her actually desecrating her husband’s bed and clearly (ἐπαντοψίοπω) committing adultery with another. He also presented reliable witnesses NN, who, under the fear of God and in good conscience, testified before everyone about his wife that, indeed, she did not maintain due fidelity to her husband; but she violated her chastity and became an adulteress. And so, our humility, having heard this and being convinced, gave movement to this matter.
Therefore, we used various methods of persuasion to convince George to accept his wife again (for this is allowed by Divine rules), forgiving her for her fall, since she bitterly repents of this and promises never to do anything like that. We did all this for quite some time and yet could not convince him. Therefore, following the saying of our Lord in the Gospel: whoever lets his wife alone commits adultery, and having in mind that nothing worse should happen in their further cohabitation, since adultery for the most part gives rise to jealousy, and jealousy gives rise to murder, we declare the said George divorced and estranged from his wife Mary, according to the saying of the Lord and according to the Divine rules of the Apostolic and Conciliar, and we give him permission to take another wife, and we do not give permission to his above-mentioned wife Mary to ever marry another husband, since she was the cause of the divorce” (Πηδάλιον, εκδ. 1800, 528; compare in Pidalion exegesis. 48 Apostolic Rights, p. 37 – 39).
Chapter 3. On the procedure for proceedings regarding certification of the validity of marriages and births from a legal marriage.
120) Cases on certifying the validity of marriages and births from a legal marriage in diocesan courts begin: a) according to the requirements of public places; b) as a result of private requests, when in order to certify a birth from a legal marriage that is not included in the metric books, a certificate of the event of the parents’ marriage is needed, and c) at the request of private individuals for the issuance of metric certificates.
121) When resolving these cases, the diocesan court accepts the testimony of parish registers as the main evidence. In the absence of metric records, the following are examined: a search book, confessional signatures, civil documents, or an investigation is carried out through a member of the court, or through a spiritual judge. (Const. cons. 261 – 277).
Chapter 4. On the procedure for conducting cases of criminal acts subjecting the perpetrator to open church penance
122) Cases of misdemeanors, for which the criminal laws require only church repentance or sending the guilty person to a spiritual court, are carried out in relation to the general procedure for the proceedings in spiritual courts of cases of crimes.
123) In cases of misdemeanors and crimes for which church penance is imposed in addition to criminal punishment, the spiritual court, on the basis of a criminal court verdict, determines the time and manner of execution of open church penance according to church rules.
Section IV. On the procedure for appealing sentences and decisions of spiritual courts
Chapter 1. On reviews and protests against sentences and decisions that are not final
124) Against inconclusive sentences and decisions of ecclesiastical judges and against all sentences of diocesan courts and the judicial department of the Holy Synod, decided as the 2nd instance, protests from prosecutors and reviews from defendants and persons based on whose complaints the case arose are allowed.
125) Complaints against the verdicts of the Council are not allowed.
126) Cases of protests and reviews against sentences and decisions of ecclesiastical judges will be finally decided in the diocesan court: against sentences of diocesan courts - in the judicial department of St. Synod, and against the verdicts of the judicial department of the Holy Synod - at the Council.
127) Protests and reviews must be filed with the court that passed the sentence no later than within two weeks from the time the sentence was announced.
129) Appeals against decisions of ecclesiastical judges on property claims and against decisions of diocesan courts on divorce cases are brought within a month from the date of announcement of the decision.
130) When considering cases of protests and reviews, witnesses and knowledgeable people are required in court when the latter recognizes this as necessary.
131) The report of the case is made orally by one of the members of the court.
132) In the order of debates, raising questions and announcing verdicts, the court is guided by the rules established for the proceedings in it, as the first instance.
133) When considering cases on appeal, the defendant’s sentence can be increased only if the prosecutor requests it.
Chapter 2. About private complaints
134) Separately from reviews and protests brought on appeal, private complaints can be filed about slowness and actions requiring immediate correction, such as: improper measures taken to prevent the accused from evading investigation and trial, incorrect determination of the jurisdiction of the case, securing a claim for remuneration, refusal to accept a response.
135) Individual complaints are submitted to the judicial institution for whose action they are brought, and do not stop the course of the case.
136) Complaints about non-acceptance or failure by a judicial institution to submit a response or complaint within a certain period of time are filed with the highest court.
Section V. On the execution of sentences of spiritual courts
Chapter 1. About the order of execution
137) Sentences of spiritual courts are enforced immediately upon their entry into legal force.
138) The spiritual courts execute their sentences either directly themselves, or report them for execution to a lower court or to the spiritual authorities, or to the secular authorities.
139) Misunderstandings that arise during the execution of a court sentence are resolved by the court that passed the sentence.
140) About any execution of a sentence not carried out by the court itself, the court receives notification from the executing authority.
Chapter 2. About legal costs
141) All expenses for business are made from amounts at the disposal of the government. Some of these expenses are recovered from the perpetrators, others are finally accepted into the treasury account.
142) All cases, excluding divorce cases, in spiritual courts are carried out on simple paper, without collecting any fees footnote 94.
Church West. No. 22, 23, 25, 26, 28, 29, 30. 1901
We consider it our duty to make a reservation that we will try to speak in a language that is as popular as possible, in order to be understandable to the largest possible circle of readers, and we promise to suffer, perhaps, fair reproach and censure for using language that in its simplicity does not correspond to the greatness and importance of the subject.
Church Vestn. No. 30, column. 948.
The voice of natural law often sounded through the environment of civil Roman law, but it sounded weak and powerless. For example: Bella etenim orta sunt et captivitas secuti et servitutes, quae sunt naturali juri contrariae (jure enim naturali omnes homines ab initio liberi nascebantur). Just. I, Tit. II, 2.
Epistle to Polycarp, ch. 5, pp. 193 – 194. Epistle of St. Ignatius the God-Bearer. Kazan, 1855.
Apostolic Constitutions, book. VIII, ch. 32. These rules can also be read in the Helmsman’s Book, ch. III.
A proverb formed on the basis of the words of Holy Scripture: “The erring sheep of Israel: the lion is exhausted: the king of Assyria is the first to poison him...”. [“Israel is a scattered flock; the lions dispersed him; first the king of Assyria devoured him, and this last, Nebuchadnezzar, king of Babylon, and crushed his bones” (Jer. 50:17).]
Apostle Fast. Book IV, 1 – 2.
Apostle Fast. book VI, 27 – 28.
Matthew Vlastar reports the following information about deaconesses, based on some “ancient books.”
“In the ancient books, which describe in detail the rite of all ordinations, they speak about the age that a deaconess should have - that 40 years old, and about clothes that in full form - monastic, and about life, that she should imitate the virtues of high men, and about the service that it consists of the same thing as the service of deacons, except for a little - that she is brought to the sacred meal and covered with an omophorion at the edges in advance and that after the words: “Divine grace, healing the weak,” she does not bow a single leg to her knees, but only one head, and that the Bishop, laying his hand on her, prays that she, leading a chaste and honest life, will immaculately perform the work of service and thus remain constantly at the holy churches; but does not at all allow her to serve at the Most Pure Mysteries, or to take ripids in her hands, which is characteristic of a deacon, - that then the bishop, having removed the omophorion, places on her neck the deacon's orarion, which is worn with both ends in front, - and about the time of communion - that she partakes of the Divine Mysteries after the deacons, that then, having accepted the cup from the hands of the bishop, she does not teach (communion) to anyone, but immediately places her at the holy table” (Ilyinsky N., priest.
Alphabetical syntagma of M. Vlastar. Per. from Greek Simferopol, 1892, p. 119, 120).
We present the translation of the Helmsman’s Book as a more accurate translation of the “Book of Rules”: Apostle. right 61.
Apostle 17 according to the rule book. Sn. similar rules 18, 19.
Apostle 67. According to the Helmsman's Book.
Apostle 48. According to the Book of Rules.
That in centuries of persecution the development of the discipline of chastity and marriage represented one of the important subjects of the pastoral activity of bishops - this can be seen from various places in the History of Eusebius. For example, about Dionysius, Bishop of Corinth in the 2nd century, Eusebius reports that Dionysius, in a letter to the Church of Amastria, “gives many instructions regarding marriage and chastity.” Book IV, ch. 23, p. 233.
This definition of ancient Roman law was also adopted by our Helmsman’s book. See Part ΙΙ, ch. 44, paragraph 5. Gr. 13.
Nomocanon Photias, Titus. XIII, ch. 5., pp. 534 – 541. Russian. translation by prof. V. A. Narbekova. Kazan 1899.
It is hardly fair, however, to believe that the above-mentioned concession in favor of the concubinage of Christian slaves was completely abolished by the new code of church law. For there is no doubt that the primary code - the Apostolic Decrees - continued to operate during the formation of the secondary code, not only until the Council of Trullo, which officially abolished this code, but also after it, despite this abolition.
That is, it had the character of an exclusively private civil contract, and it is indeed revered as such in ancient Roman law.
“Penes nos occultae qnoque conjunctiones, id est non prius apud Ecclesiam professae juxta moechiam et fornicationem judicari periclitantur. Nec inde consertae obtentu matrimonii eludant.” De pudicitia, Cap. IV. Migne. T. II, col. 987.
Ad uxorem, L. II, IX, Col. 1302. Migne, T. I.
Dig. XXIV, 2. de divortiis: “Nullum divortium ratum est, nisi septem civibus romanis puberibus adhibitis, practer libertum ejis, qni divortium faciet.”
Dig. XXIV, 2. Fragm. Gaius: In repudiis, id est renunciatione, comprobata sunt haec verba: tuas res tibi habeto; item haec: tuas res tibi agito.
Marezzoll. Textbook of Roman Civil Law, p. 332.
See Theological Bulletin, February.
Narbekov V. Nomocanon Photius, p. 528.
§ 6 ch. VIII new The 117th, which reads: “if the wife, without the knowledge of her husband, or against his will, was present at shows in the circus or theater or at a hunt” - for some reason it is omitted here. Note prof. V. A. Narbekova, p. 517.
Narbekov V. Nomocanon Photius, pp. 514–521.
Nov. 134, Ch. 10. Narbekov V. Nomocanon Photius, p. 100.
Narbekov V. Nomocanon of Photius, p. 525. See also Helmsman, ch. 44, gr. 11, ch. 4.
Tyazhelov A. Laws of the Greek Emperors in relation to the Church after Justinian. M., 1877, p. 94.
See Helmsman, ch. 49, conceived. XVI, 9.
Helmsman, ch. 48, gr. XXXIX, 42.
Ἀλλακτῶν = Fustigationibus - stick blows.
Of course, a woman acting on stage is, in our opinion, an actress. In Byzantium, women's stage service did not enjoy public respect. See Nomok. Titus ΧΙΙΙ, ch. 21.
It was a general rule of ancient church discipline that only the first marriage was awarded a church blessing and a wedding. The 2nd and 3rd marriages were performed in a civil manner, and the spouses who entered into them were excommunicated for 2 years from communion of the Holy Mysteries. We find an echo of this discipline in the rules of St. Nikephoros the Confessor (IX century). His 149th rule reads: “If someone, being a widower, wants to take a widow wife, then he must arrange a meal, calling 10 husbands - the heads of families - and say in their presence the following words: “Know, gentlemen and brethren, that I take this No. to be my wife.” But there is no (church) following; Let them observe the penance of bigamous people” (Pitra. Jur. Eccles. graec. Historia et monumenta T. II). And the 2nd rule of this St. father, placed in the Helmsman’s Book, reads: “A bigamist does not get married, but he also accepts the prohibition not to receive Holy Communion. Tain is two summers: a three-wife is 5 years.”
Bible manuscript. M. D. Academy (XV–XVI centuries), No. 54.
Διὰ μαλακίας. [Ancient Greek μαλακία - “effeminacy, relaxation, lack of will, softness”, as well as “weakness, illness” (the latter two meanings are used in the New Testament). For later meanings of the term, including in the church-canonical sphere, see: https://www.google.com/search?q=%CE%BC%CE%B1%CE%BB%CE%B1%CE%BA%CE%AF%CE%B1&sxsrf=ACYBGNTPRJNGfkhpm1tMuFKNbGjzJcAHag: 1573208758956&ei=tkLFXfaGOqzmrgSMsozgDQ&start=10&sa=N&ved=0ahUKEwj2ufCps9rlAhUss4sKHQwZA9wQ8NMDCKEB&biw=1350&bih=640 ; https://www.google.com/search?biw=1350&bih=640&sxsrf=ACYBGNT-G_1zpEfdaPDgUcC270uoVc35ow%3A1573208919038 &ei=V0PFXcv-Ae-grgS7tqDIBA&q=%D0%BC%D0%B0%D0%BB%D0%B0%D0%BA%D0%B8%D1%8F&oq=%D0%BC%D0%B0%D0%BB%D0%B0%D0%B A%D0%B8%D1%8F&gs_l=psy-ab.1.1.35i39j0l9.1682994.1693323..1703546...1.0..0.288.1099.11j1j1......0....1.. gws-wiz.....10..0i7i30i19j0i19j0i10i19j0i7i10i30i19j0i30i19j0i7i30j0i30j35i362i39j0i131j0i10.XsQk1jnBX6s .]
The second half refers to unnatural sins against the seventh commandment.
On Latin penitentials see Wasserschleben's classic study: Wasserschleben: Die Bussordnungen der abendland. Kirche. Halle. 1851.
Morini: Commentarius historicus de disciplina poenitentiae. Parisiis 1651, p. 104.
St. Vas. Great. right 37.
Schmitz: Die Bussbücher und die Bussdisciplin der Kirche. Mainz. 1883. S. 545.
See Schmitz's book cited above.
Hefele. Conciliengeschichti. 1873. S. 158 – 219.
Digest. XLVIII, t. V, § 5: Si... ex die vero commissi criminis quinquennium praetererit, “debuit dici, nec mulierem posse accusari... ne crimen quinquennio continuo sopitum excitetur... § 6: Hoc quinquennium obsevari legislator voluit, si reo vel reae sturpum, adulterium, vel lenocinium obiciatur.”
Nov. XXII. cap. XV, 3; XVI.
Migne, Patrolog. T. XCIX. Col. 1728. In our country such an act is completely unpunished, and from the point of view of the so-called world, it is even sometimes approved... Wonderful light!
In the Greek text, this preface can be read in the famous editions of the Scholastic Nomocanon by Eustellus and Pitras.
"Ἰατρεῖον ἐστι πνευματικὸν τὸ πατριαρχεῖον⸳ καὶ οὐκ ἄν τις ἐνταῦθα προσελθὼν ἀσθενοῦσαν ἔχων τῂν συνείδησιν ἀδιόρθωτος ἀπελεύσεται, ἀλλὰ καὶ κατάλληλον ἐφʼ ἐκάστῳ πάθει τὴν θεραπείαν εὐρήσει, εἰτε περὶ τὰ θεῖα δόγματα ἀπορῶν ἐςτιν, "(J. Zhishman: Die Synoden und die Episcopal-ämter in der Morg. Kirche. S. 215).
See Theological Bulletin, March.
The underlined terms are the language of civil procedure, therefore, you can only get an idea about them from the Ordinance. Citizen Legal proceedings, art. 839 – 867. We quote the 1892 edition.
Est. Citizen Proceedings Art. 1337.
Est. Criminal Sudopr. Art. 1011. We mean ed. 1892
Pobedonostsev K.P. Course of Civil Law. Part II. Ed. 3. St. Petersburg, 1889, p. 99.
The extent to which the modern Church court is demanding in this regard can be demonstrated by the following fact. In 1887, the Diocesan authorities of NN refused to dissolve the marriage at the suit of Vasily NN with his wife Maria, “not finding solid grounds for accusing the defendant of adultery, since according to the testimony of witnesses, that she was taken to baths and rooms and that she was lying on the same bed with NN, one can only suspect, but not take it as irrefutable evidence of her adultery”... Holy Synod overturned this decision, recognizing the claim as proven.
Those. worships idols, etc. Writings of the Apostolic Men. M., 1862, pp. 257 – 258.
Monuments of Christian writing. T. III. M., 1862, p. 115.
See Bogosl. Vestn. March, page 509.
Helmsman, ch. 48, gr. XI, 16.
J. Zhishmann: Das Eherecht der orientalischen Kirche. Wien. 1864.
We will talk about this in more detail later.
When we wrote these lines, we quite accidentally came across No. 5 of the Samara Diocesan Gazette, on the 1st page of which the following order of the Diocesan authorities was placed. “In the case of committing to church repentance.” “February 1902 4 days. The Samara Spiritual Consistory heard: The Resolution of His Eminence dated January 25, which followed the journal of the Consistory, held on January 21 of the same in the case of bringing to church repentance the peasant woman of the suburb of Eriklinsk M. Ch-voy who attempted suicide, with the following content: “Ch-va, guilty before God and the church of attempted suicide because of her husband’s cruel treatment, deserves, like other women like her in a marital situation, not punishment, but namely admonition and sincere compassion: what needs to be punished is not them, but their barbarian husbands, who, according to some kind of right they imagine, beat and torment their wives, often for no reason, but simply out of extravagance, especially when drunk.
And what their wives do not tolerate from such scoundrel husbands, in most cases, according to the general opinion, are good women, moral, God-fearing... So, for example, priest Filimonov in his report on the state of the parish with. Proleiki of the Samara district writes: “one young Mordvin beat his wife brutally, and brutally bit her breast, which was feeding an infant child.” On Holy Week on Monday, the same priest writes: “a young Russian guy on horseback drove his wife through the streets of the village and beat her with a whip, at night he left her in the yard, and he went to sleep in the hut on the stove. At 11 o’clock at night, the priest and the police centurion went to this house to find out the situation of the beaten woman and ordered to send her to the Yelokhov hospital.” “In August,” writes Fr. Filimonov - while working, a Chuvashe man beat his wife so badly that she came to him covered in blood and asked for protection.”
With such and similar terrible beatings and torments of wives by their husbands, often repeated day after day without the slightest relief, naturally, they are driven by all this to despair, to the loss of all hope for a better future in life, and to them, with their weak faith in the afterlife and with an unclear consciousness of the Judgment of God, at which they must appear after death, and especially due to the evil demonic influence at that time, there seems no other outcome from their present hellish life. conditions such as violent death, and one cannot reject the mental abnormality that they are exposed to from the nervous suffering caused by their husbands... We, the pastors of the church, especially need to carefully monitor the family relationships of husbands and wives so that they are truly kind, Christian, and not barbaric, inhuman...
The inhumane relations of husbands to their wives corrupt the morals of children from an early age: looking at the father of his beast, how he tyrannizes his wife, they are aroused by the same spirit of cruelty, perhaps with the same methods of action that they saw when the father beat and tyrannized his mother. with the prayer of the publican until she feels peace of conscience... Then he will honor her with Holy Communion after confessing her sins in the Sacrament of Repentance, and let her promise to God that for the sake of eternal salvation she will generously endure the insults and impudent attacks of her husband, if such are repeated in the future. And her husband, after due pastoral suggestion, should be excommunicated from Holy Communion, if he does not ask his wife for forgiveness for inflicting beatings on her, which brought her to despair, and let him make a vow to the Lord before the Holy One.
The Cross and the Gospel, that he will henceforth stop his tendency towards drunkenness, which drives him to hellish anger, and that he will never beat his wife in any way. So that he always remembers that by beating his wife he almost subjected his wife to eternal destruction, from which he himself would not have been freed if she had taken her own life: - let him, every day, throughout his life, in a feeling of repentance and thanksgiving to the Lord, make three prostrations to the ground, or as many as he wishes, as far as possible, only at least three prostrations... This will keep him from being obstinate in his relationship with his wife. Regarding the application of our order in relation to barbaric husbands who torture their wives, we must adhere to pastoral prudence. A prudent priest, having learned about the torture inflicted by some flock on his wife, before resorting to penance, will consider it his duty to explain the reprehensibility of his act towards his wife and the consequences to which it can lead to her and him, then pastorally instill in him in what relationship he should stand towards his wife.
In this conversation, it is necessary, with God’s help, to bring to consciousness the injustice of his actions towards his wife, and, when this is achieved, to invite him to ask her forgiveness and reconcile before the face of the All-Seeing God, which would be better to do in the presence of a priest before the Holy Cross and the Gospel. If over time, for some reason, the husband’s bad relationship with his wife resumes: then again call the guilty person for pastoral admonition, and on the admonished person, even if he has repented of his misdeeds and reconciled with his wife, impose penance by bowing to the ground in the morning and evening - at least 3 and until 12 with the prayer of the publican, so that these bows will keep him from being obstinate and impudent relations with his wife... If impudent relations with his wife are repeated, especially with beatings and mutilations: then, with due pastoral inspiration, increase the number of prostrations to the ground to 100... And then, if this measure turns out to be insufficient for the purpose, inform me for the proper order to impose the penance of excommunication from the Holy.
Communion, but only if the priest does not rely on the sufficiency of his authority in this case in order to influence with this penance the moral feeling of a monster husband, hardened by insolence in his wife.” This is a truly churchly, pastoral court, albeit with a rather timid use of a very light moral measure of influence on the moral sense of the monster-husband, who had hitherto remained unpunished in front of everyone. This order of the Most Reverend Gury was noticed and welcomed by the secular press: a clear and good sign that our society longs for increased pastoral influence of the church on modern life. If this is so, then let us allow ourselves to think that the theory we are revealing for improving the modern church court in the canonical-pastoral spirit meets modern social needs. The Diocesan Court of the 18th century acted with greater decisiveness and authority in such cases.
The bishop, with his power, separated such spouses, giving the injured wife the right to live in a nunnery at the full expense of the monastery - as in a quiet refuge, and assigning the monster husband to live in a monastery for hard work. See in our book: On Church Authority. S. Posad. 1894, pp. 443 – 458, appendix.
See Theological Bulletin, April.
So, in 1752, the Most Reverend Athanasius Bishop of Kolomna and Tula was submitted a petition from the wife of retired colonel Pyotr Ivanov Glebov to dissolve her marriage with the named husband due to her inability to cohabitate in marriage and his adulterous life. The marriage was dissolved, and the following decree was made: “as she (the plaintiff) testified that she had not had cohabitation with her husband for a year and six months, and her husband, Colonel Glebov, testified about himself that he is now only 28 years old and feels in good health and build, then, considering her testimony about the lack of cohabitation for more than a year with his explanation, it is possible to testify about adultery (husband) to be considered probable. But his adultery, even if it was definitely committed by him, did not relate to the violation of marital cohabitation with her (?), which should have been attached to mutual bodily communication, why, in order to prevent adultery, is he allowed to enter into a legal marriage with another.” See: Rudnev M. N.
Marriage divorces according to archival documents of the Tula Theological Consistory. Tula, 1900. Pp. 6 – 7.
Archbishop Theophan distinguishes between two divorces: 1) temporary separation of spouses from their life together and 2) complete dissolution of marriage.
We borrow from the publication of the Holy Synod: Opinions and reviews on the issue of the right of persons whose marriage has been dissolved due to adultery to enter into another marriage. St. Petersburg. 1893. Pp. 1 – 8.
See Theological Bulletin, March, pp. 522 – 523.
See Theologian. Bulletin, February, p. 528.
The oldest prayer of permission for the rite of confession read as follows: “God, who forgave Nathan for David, forgiving his own evil confession, and for rejecting Peter, weeping bitterly, and for the harlot who shed tears at His most pure foot, and for the publican and for the prodigal, saying: Confess to one another, and if we confess our sins, God is faithful and righteous, may He forgive us our sins and will cleanse us from all sin: He Himself is our Savior and the Lord Jesus Christ will forgive you from everything, since before Him you have confessed my evils and are still uncondemned in the present world and in the future, He will be worthy to present you before His judgment, He is blessed forever, amen” (Rkp. Bibl. Moskov. Spiritual Acad. No. 54, L. 60, on turnover).
The 25th Apostolic Canon reads: “A bishop, or presbyter, or deacon convicted of fornication, or perjury, or theft, may be deposed from the sacred office, but may not be excommunicated from church communion. For Scripture says: Thou shalt not avenge one thing twice (Nahum. 1:9).
That is, in our opinion, canonical penance.
See Theologian. Vestn. May.
Moscow. Ved. No. 145 (May 28) by phone.
See Bogosl. West. April.
See our book: Church court in the first centuries of Christianity. Kostroma, 1878.
All this was revealed by us in the article “On the Divorce Process” (Orthodox Review, 1882). We do not find it necessary to add anything here to what was said there.
Due to its extensiveness, we leave the next motive for the article.
Proposed reform of the Church Court. Vol. 2. St. Petersburg. 1873. pp. 305 – 354.
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