On the issue of the competence of state and church courts regarding crimes of clergy and monastics

Contents Preface What is the significance for the church of the deprivation of the priesthood of clergy when it is a consequence of a decision of a civil court I. A brief overview of the judicial practice of the Christian church II. Crimes and misdeeds of clergy and the canonical rules by which they are punished III. Disagreements between civil (secular) laws and church canons or the question of whether a priest can retain his rank if convicted by civil authorities. IV. What is the significance of the defrocking of clergy when it is carried out according to a decision of a civil court V. The difference in the degree of punishment for the laity and for persons of clergy rank. VI. Do clergy have the right to pardon? VII The treatise published below by the Right Reverend Sava, Bishop of Zhich, in a Russian translation under the title: “What is the significance for the church of the deprivation of the priesthood of clergy, when this is a consequence of a decision of a civil court” deserves attention both for the high authority of the author, a venerable hierarch of the Serbian Orthodox Church, and for its content, which considers an issue of church-state importance, namely whether civil courts have the right sentence clergy for crimes provided for by the criminal code to defrocking and is the church authority obliged in this case to be the executor of such sentences? The reason for the appearance of this treatise was the following circumstances. Recently, in the Kingdom of Serbia, cases of defrocking clergy and monastics (archpriests and archimandrites) by civil (district) courts have become more frequent for relatively unimportant crimes, mainly for improper spending of church funds from church institutions entrusted to them. Thus, an archimandrite, the abbot of one monastery, was sentenced by a civil court for embezzlement of 3,000 dinars 1 to 6 years of hard labor and defrocking, although in reality there was no embezzlement, but only faulty reporting was established and neither the monastery nor any of the private individuals made any monetary claims against the accused. One priest, the rector of the church, was sentenced by the district court to 4 years of hard labor and defrocking for improperly spending 400 dinars. One hieromonk for embezzlement of 25 dinars and 72 par 2 was sentenced by the district court to 2 years of hard labor and defrocking. It is noteworthy that the Serbian state court is incomparably more lenient towards civil service officials for such crimes. Thus, the treatise provides the following facts: One tax collector in Krachuevets was sentenced to 5 years of hard labor for embezzlement of 70 thousand dinars. The absconding judge who embezzled 40 thousand dinars was sentenced to the same punishment; The regional clerk suffered the same punishment for embezzlement of 10 thousand dinars. One customs official who embezzled 700 dinars was sentenced to 1 year in prison without deprivation of his license. But this is not enough. For some time now, the Ministry of Justice has begun to deprive clergy convicted by a state court of the right to petition the Supreme Authority for pardon, a right that no serious criminal is deprived of. Only clergy were deprived of this right. On what, however, does the Serbian state justice base such an apparently unfair attitude towards the Orthodox Church and its servants? Formally, the legal grounds are as follows: 1) The general rule of criminal law is that those sentenced by a court to two years of hard labor and beyond are thereby subject to deprivation of rights in their service. 2) Circular of the Minister of Education and Church Affairs dated December 21. 1907 No. 2391, which clarified that the right of pardon to clergy applies only when they have been sentenced by a ecclesiastical, not a civil, court. Based on the first rule, a civil court, sentencing clergy to hard labor for two years and further terms, at the same time sentences them to defrocking, demanding that the latter be carried out immediately. Based on the second basis, the Minister of Education and Church Affairs rejects the submission of petitions to the highest name from these individuals for pardon. Church hierarchs repeatedly protested against such illegal actions of the Ministry of Justice, but they were unsuccessful. Then the bishops' council, held in May 1908, took upon itself the protection of the rights of the church. The Council, by the way, developed the following resolutions. 1) Sentences of a civil court over persons of clergy have the same force for them as for other citizens who have committed offenses before the law. As soon as the sentence enters into legal force, a person of clergy must be immediately punished. 2) When a person of clergy rank is sentenced to punishment by a civil court, he must submit all the necessary information on this case to the episcopal council for consideration to decide whether it is possible for this person to leave the rank or not. If the council finds the crime committed so serious that the condemned person is not worthy to be a bearer of the rank, then it pronounces an appropriate sentence. If the council finds that the convicted person can retain his rank, then the council determines, on the basis of the canons, in what position this person will remain in the clergy after serving the sentence imposed by the civil authority. 3) Immediate defrocking is permissible for persons of clergy only if they are sentenced to death. 4) Convictions against persons of clergy for political crimes, excluding treason, do not entail defrocking, and therefore the Spiritual Authority should not interfere in matters of this kind. 5) To petition, through the Minister of Education and Church Affairs, before His Majesty the King for the necessary changes in the laws, according to which the Spiritual Authority would be given to make independent decisions on whether a clergyman convicted by a civil court can retain the priesthood. 6) Ask the Minister of Education and Church Affairs not only to accept the petition of convicted priests in the future, but to direct them to their destination and provide, as before, possible support, and especially if such petitions with proper motivation come from bishops. These are the circumstances that prompted the venerable hierarch to undertake the work of compiling the treatise to be published later. The latter is nothing more than a theoretical, canonical-legal justification of the now cited decrees of the Serbian Episcopal Council of 1908: placed at the end of the treatise, they are, as it were, logical conclusions from a rather extensive scientific study of the right reverend author. Strictly speaking, the above decisions of the council, by their internal merits, are such that from the point of view of the idea of ​​justice they do not need any motivation. We think that no cultural state would refuse to recognize them: the criminal competence of the state and the disciplinary competence of the Church in them are so correctly demarcated that there is absolutely nothing to object to such a demarcation. To step beyond this demarcation by one side or the other (i.e., the state or the church) means violating the inalienable right of one or the other. The church would act unfairly if it insisted on the inequality of criminal punishment for the same crime, depending on whether it was committed by a clergyman or a layman. But it would be unfair for the state to impose defrocking on a clergyman in addition to criminal punishment, as the Serbian government is currently doing. This is an invasion into the autonomous sphere of the church, unjustified by anything, except perhaps ignorance of church fundamental laws, - on the contrary, it directly contradicts the principle of religious freedom, which is currently mandatory for every cultural state. By virtue of this principle, the cultural state considers itself not to have the right to interfere in the internal religious life of even a sect - that is, the exercise of its cult, rites of discipline, since this sectarian life does not threaten state or public security. This must be said even more so about the Orthodox Church, in which there is such a harmonious discipline regarding clergy, before which one cannot help but bow with deep respect. And in this respect the treatise. Reverend Savva is of high dignity and interest not only theoretical, but also practical. It briefly enumerates all types of crimes of spiritual and temporal members of the Church, subject to its disciplinary court, based on divine law, and then indicates a whole gradation of disciplinary penalties for these crimes committed by clergy (Among these crimes and punishments is the embezzlement of church property, punishable by compensation for the wasted and removal from office, but by no means defrocking). It is clear that the current Serbian Ministry of Justice was completely unaware of this wonderful discipline of the Orthodox Serbian Church and allowed the courage to oppose it with its own justice full of lies, and now having become acquainted with it from the treatise of the Most Reverend. Sava, to properly evaluate it and correct his sin of ignorance, and at the same time avoid the condemnation of the entire cultural world for the unreasonableness and truly draconian cruelty of his policy towards the Orthodox Serbian Church, its hierarchs and its priests. The Serbian government, which so frivolously authorizes its justice to sentence clergymen not only to criminal punishment on an equal basis with the laity, but also to defrocking and demanding that the ecclesiastical hierarchy immediately carry out such a sentence, obviously had no idea what defrocking meant, or, as Rev. Savva rightly believes, equated it with the removal of an official from service. And as a result of this delusion, insisting on his demand before the church hierarchs, he could not even imagine that it was forcing him to commit an act that went against his conscience and his archpastoral duty. Defrocking, according to the teachings of the Church of Christ, is not only removal from office, but also the taking away of that gift of grace that is given at ordination, just as this latter is not only an appointment to a position, but also a communication of the grace of the priesthood; it is not only a legal act, but also a deeply religious, mystical one, it is a sacrament of the church. And while the Catholic Church recognizes it as absolutely impossible to take away this gift from a person who has once received it, the Orthodox Church allows the deprivation of this gift only as the most extreme measure of punishment for apostasy from the faith, or for serious criminal and political crimes. This punishment is irrevocable. A gift, once taken away, is never returned: for consecration, through which alone it can be given again, is not repeated. And so the Serbian justice urgently forces the Orthodox hierarch to commit such and such an act over a priest sentenced to hard labor for embezzlement of 400 or even 25 dinars and 75 pairs. What kind of hierarch would agree to fulfill such a demand? After all, for him, satisfying such a demand is, firstly, canonically illegal: for according to the canons, defrocking is not punishable for such a crime; secondly, it is contrary to his archpastoral conscience, which encourages him to soften the severity of the criminal punishment to which his spiritual son was subjected (albeit fairly) upon ordination, with paternal love and exhortation to patiently serve the well-deserved punishment and strive for change for the better, and not to attach new ulcers to the ulcerated one, to the criminal punishment a new one, ecclesiastical... St. Savva revealed this idea in his proposed treatise so thoroughly and from a canonical and legal point of view that, apparently, it is impossible to say anything against it. What effect the treatise will have in practical terms on the future politics and legislation of Serbia, as well as on public opinion - we are not able to assume anything. But this local issue, of the Serbian Church itself, has, at the same time, church-wide significance, specifically for all Orthodox churches that are in alliance with the state. The correct delimitation of state and church jurisdiction is generally a very difficult and important matter, especially in states whose historical past was strongly influenced by the Orthodox Church, and the state and church spheres merged so much that only now has it become possible, and indeed has become necessary, to rationally delimit them. But it is precisely the importance of the task that requires extreme caution, and not haste and frivolity, in its resolution. In view of this importance of the subject to which the treatise of the Right Reverend Sava is devoted, we assign it a place on the pages of the Theological Bulletin. What is the significance for the church of the deprivation of the priesthood of clergy, when this is a consequence of a decision of a civil court 3 Recently, in our country, incorrect and very strange concepts have begun to appear about the position of the Serbian clergy in general and, in particular, on the issue of deprivation of the priesthood and pardoning persons of clergy rank. Therefore, we have set ourselves the task in this article to list all the criminal acts for which the clergy, starting with the church bell ringer and reader and ending with the highest hierarchs, are responsible and punished according to the importance of the criminal act committed according to canon law and the fundamental laws of the church. Next, in order, we will list all the punishments that, for the sake of correction, are applied to the clergy on the basis of canonical rules. Let us pay special attention to those important crimes for which the clergy have to bear severe punishment, both before civil and spiritual courts. Let us then consider whether the ecclesiastical court is obligated to deprive the priesthood of persons sentenced by a civil court to hard labor, and what significance such deprivation has when it is a consequence of a decision of a civil court, and not a free decision of the ecclesiastical court. Every sensible and impartial person can see from this work that on the issue of deprivation of the priesthood of clergy, many are mistaken due to an incorrect interpretation of civil laws, for the latter should not contradict either common sense, or the canons of the Eastern Orthodox Church, or the fundamental or other laws of the Kingdom of Serbia. Therefore, we decided to draw the attention of those concerned to this significant gap, calling for this issue to be worked out in accordance with church canons and state laws. I. Brief overview of the jurisprudence of the Christian Church The Founder transferred the legislative power in the Christian Church to the Apostles; from the Apostles it passed to their successors - the bishops, who always, as now, exercised it collectively. The foundation of the ecclesiastical court was laid by the Founder of the Church Himself. This is evident from His words to His disciples: “If your brother sins, go and rebuke him in private; if he listens to you, you have found your brother; But if he does not listen, take with you one or two more, so that by the mouth of two or three witnesses every word may be established. If he does not listen to them, tell the church; and if the church does not listen, then let him be to you as a pagan and a tax collector.” As a Divine institution, legislative power, in accordance with the direct tasks of the church, has always developed in a precisely defined direction. Church legislators, when legislating, did not do so on their own behalf, as if manifesting their personal will, but on behalf of the Divine Life-Giving Spirit, always living in the church. They serve only as an instrument through which His will is manifested on earth and acts through them. (“Whatever the Holy Spirit deems good, so do we.” “For it pleases the Holy Spirit and us” (Acts 15:28). But the legislation of the church received full development only when it entered into harmonious communication with the state. The first Christian Emperors granted the church freedom of legislation, and civil authorities were strictly prohibited from interfering in matters relating to church life. The Church is not limited by place and space, for the law of Christ is intended for all people without distinction, and, as the most perfect law, can never be replaced by a new one, but will remain for all peoples and for all times. Not so in states. The name of state laws refers to the norms of the supreme state power of individual states. These norms define the rights and responsibilities of a person as a member of a certain state union. Of course, these laws are binding on every Christian, as a member of a certain state union, because it is the will of God that a person should live in a state. No state can exist without a certain authority and supreme sovereignty. This also has its source in divine institution. Therefore, every Christian must comply with all state laws and regulations in his state, since the existence of a state without certain laws is unthinkable. The Lord commanded: “By My power kings reign and the mighty write the truth.” That is why we say that every Christian is called to the exact and conscientious fulfillment of legal norms. The Christian Church teaches its faithful to submit to government authority and to comply with those laws that do not contradict the basic rules and regulations of the church. In particular, the Orthodox Church considered it its sacred duty to constantly be in agreement with state laws, aligning its decrees with the norms of state power, so far as this did not contradict the basic rules of the church; even many state norms serve as guidance for her in purely church matters. And indeed, practice has proven that the more fully the agreement of state laws with church laws is achieved, the greater the power and significance they acquire, and the more accurately and willingly they are executed. There is no doubt that in this case, state laws serve as a sure guarantee of the general welfare of the church and state. On the contrary, where there is no such agreement, there cannot be confidence in the constancy of laws, in their purity and strength, and even more so one cannot expect a beneficial effect on the development of the well-being of the people's life. It goes without saying that state laws must be precisely and definitely expressed so that their instructions do not inspire doubt, for everything that is wrong and erroneous should be avoided by every person, and above all by the state. This is required by the Divine Law, which is the oldest, most complete and most important compared to each of the new human laws. Therefore, if a temporary human law prescribes to a citizen something that obviously cannot be conscientiously fulfilled without sin, of course, it does not bind a Christian, and no matter what circumstances a Christian finds himself in, he is under no circumstances obliged to fulfill it. “Judge whether it is right before God to listen to you more than to listen to God.” – “We must obey God rather than men” (Acts 4:19, 5:29). We have a very sad example these days. One legislative body, in which both members of the Orthodox Church and members of all other faiths took part, and even some sectarians, whose religious faith is not recognized by the state authorities (everyone was there, only true representatives of the Orthodox Church were not here) - this body developed a law on the tax for the “ranks” of the clergy of both types, so that a person with the monastic rank, when passing through all levels of the hierarchy, up to rank of metropolitan, must pay more than 7,000 dinars. Comparing this tax with the fee for ranks in the civil service, one cannot help but recognize it as fabulously disproportionate. Finally, an additional law was issued, exclusively directed against the clergy. Under this new law, disobedient people were punished with a fine of up to 2,000 dinars. If this unjust law was disobeyed again, the person was ordered to be defrocked. When applying the law, many whom it concerned preferred to be punished, to lose their place and everything, rather than fulfill those laws that were drawn up against and without the knowledge of the church. Nero, Julian or the Turkish Sultan hardly had to sign such laws. Later, some of this was canceled, but much has survived to this day. It will be a long time before the traces of this law are erased and the church is satisfied. However, history has yet to say its fair word about this rare attack on secular power. More than 15 centuries have passed since the canons and church rules were approved and recognized by the state authorities. There are differences between church laws in their purposes. Some concern the essence of faith, while others concern church discipline. The first are called holy dogmas. They accurately state revealed truths and condemn every error that arises that is contrary to Christian teaching. The second are called disciplinary, or rather: these are the laws by which the external life of the followers of the church is regulated; they help maintain proper order in the church and achieve the purpose for which the church was established. But in order to have full binding force, church laws must, firstly, be drawn up and issued by church authorities within the boundaries of its competence, so that, in accordance with the fundamental laws of the church, in essence they retain a purely church character; and secondly, in order to be generally binding in a certain state, they must be proclaimed by law. The laws of faith, order and morals thus made are absolutely binding on each and every member of the church, wherever he may be and whenever he may live. When the church received independent legislative power, it became clear that every Christian who wished to remain a member of the church must unconditionally obey the law. Otherwise, the church tries by all means to correct the lawbreaker. And if he persists, he is deprived of unity with the church and becomes, as it were, alien to it. State authorities recognize not only punitive activities of the church, but also help it in executing the sentences of spiritual courts. II. Crimes and misdeeds of clergy and the canonical rules by which they are punished Crimes of secular persons, which are punishable by spiritual authorities for a sin committed, according to the canons of the church, are punishable by excommunication. By this, a secular person is, as it were, called to the right path, to become an obedient son of the church. Strictly speaking, this is not a punishment, but a call to repentance, fasting, prayer and doing good deeds, which is the only way to earn forgiveness and gain the favor of the church. And at death, no matter what crime the evader commits, if he repents, the church honors him with communion with St. Mysteries and Christian burial (I Ecum. Sob. can. 13, Carth. 7, Grig. Nyssk. pr. 5). The church deprives this latter only of stubborn sinners who did not want to be reconciled with the church even at the hour of death. In the same way, the church refuses burial to everyone who deliberately resorts to suicide (Timoth. Alexander. 14 canonical response and 178 canon. Nomocanon in the Great Trek.). Sometimes some are anathematized or completely excommunicated from the church. The church imposes this punishment only on the most serious crimes, and in exceptional cases, based on the sacred. Scripture (Matthew 18:17, 1 Cor. 5:5, Tim. 1:20). The church views the crimes of clergy in a completely different way. Crimes committed by clergy may relate either to their church activities exclusively, or to the general duties that every Christian is bound by. Clergymen are not only called to repentance, like secular people, but are subject to more severe punishments. And the more significant the crimes of clergy, the more severe the punishments applied to them than for secular people. When easier and more consistent measures do not help, then clergy are deprived of the place of service entrusted to them and the priestly rank. Then, they are handed over to the government authorities to be tried as common criminals. For the first violation, called “sins,” the perpetrators are subject to the internal court of the church, which operates through exhortations and suggestions. For other offenses, which are crimes in the proper sense, the perpetrators are subject to the formal external court of the church. As for clergy, the legal sources of the church mention the following offenses: when a cleric, having once renounced Christ and the clergy, accepts ordination from someone again and repents, he should have fellowship as with a layman. (Ap. pr. 62) 4: when some clergy person is deprived of his rank according to the established procedure, but dares to do so without permission, despite the prohibition to fulfill church requirements (Ap. pr. 28): when a bishop in a foreign diocese ordains clergy without proper permission (Ap. pr. 85): when some cleric, without the permission of the bishop, serves the liturgy in chapels located at houses or at some church (Trul. Sob. pr. 31. 59): when a clergyman does not perform services according to the charter, but arbitrarily deviates by introducing innovations (Trul. Sob. 28, 32. 81): when a priest arbitrarily leaves his place of service in one church and, without the permission of church authorities, moves to another (Ap. pr. 14, 15, 16): when a bishop is ordained, but does not want to take care of the flock entrusted to him and perform official duties (Ap. St. 17): when the clergyman does not care about the clergy and does not teach the people piety (Apoc. 58); when the confessor violates the sanctity of the secret of confession by communicating the secret to a third party (Carth. pr. 132), that is, the confessor will reveal the secret told to him in confession. There is a rule according to which the confessor is subject to a three-year ban for this and must make one hundred bows daily. In church practice, there is a case when one abbot was stripped of his hair for this. From the above rule of the Carthage Council, it is clear that a more severe punishment could have been applied for this: when a cleric does not save or preserve church property and uses it for his own personal benefit (Ap. pr. 38): when a clergyman is engaged in extraneous matters that have nothing to do with the priesthood, and thereby evades his direct duties (Ap. can. 6. 81. 83): when a cleric wears clothes, not befitting his clergy (Trul. pr. 27, 62, 96): when the cleric is involved in high treason (Ap. pr. 84): when the cleric is involved in a conspiracy against high-ranking officials (4 Ecumenical Sob. pr. 18): when one of the clergy violates this oath (Ap. pr. 25): when a clergyman commits sacrilege, that is, takes wax or wood oil from the church without permission (Ap. pr. 72. 73): when they insult a shrine (Nomocan. 1:1, 5:1): when a cleric slanderes or accuses someone in bad faith (Ap. pr. 55, 56): when he committed a theft or was an accomplice (Ap. pr. 25): when he committed murder in any way (Ap. pr. 65): when he gets into a fight with someone (Ap. pr. 27. 65); when he committed adultery (Ap. pr. 48, 61): when he committed fornication (Vas. Vel. pr. 3, 22, 23): when he indulges in drunkenness (Ap. pr. 42, 43): when he indulges in obscene fun (Trul. 50): when one of the clergy runs an inn (Trul. can. 9); when someone visits clearly indecent places (Trul. channel 24), etc., etc. But, in addition to the possible offenses we have cited, four more of the most serious crimes are mentioned, namely: 1) “apostasy” - falling away, when someone renounces the Christian faith and goes over to another non-Christian one. This can happen out of fear or out of good will, for which the strictest church punishment is due (Vas. Vel. pr. 73: Grig. Niss. pr. 2: Ap. can. 62: Ankyr. pr. 1:2: Peter Alexander, pr. 10); 2) heresy - the deliberate and persistent denial of any dogma recognized by the church. For heresy, the church anathematizes. (Vas. Great. Ave. 1: II Ecumenical. Sob. Ave. 6, IV Ecumenical. Sob. Ave. 14); 3) split. It comes in two types. The canons define punishments according to the degree of deviation from the established church rules (Vas. Great. can. 1: Ap. can. 31: Gangr. can. 6: Antiox. 5: Carth. 10, 11: First and Second sob. pr. 13. 14, 15); 4) simony is the most terrible, grave crime against the church. It takes the form of trading in the divine grace of the priesthood. This crime received its name from a certain Simon, who wanted to receive the grace of the priesthood from the Apostles for money. It is clear that for this sin everyone is excommunicated from the church. (Acts 8:18–19: IV Ecumenical sob. pr. 2: Nomocan. 1–24: Grig. pr. 4, 17: his last pr. 26: Ap. can. 30). The crimes we have indicated, as well as many others that we have not indicated, are especially dangerous for stubborn and incorrigible people, because they inevitably entail severe consequences, even for all those who, due to carelessness or lack of attention, do not protect themselves from such offenses. The punishment for them is such a strict measure as deprivation of the priesthood, which will be clear from the further listing of punitive measures. In addition, in connection with the above canons, there are several more degrees of punishment, depending on the type and severity of the listed crimes. Depending on the purpose, in all the punishments to which clergy are subjected, a certain sequence is noticeable, which has as its task the correction of the offender or punishment in the proper sense. According to the canons of the Eastern Orthodox Church and the ecclesiastical laws of the Serbian Church, seven degrees of punishment are distinguished. The first punitive measure is a reminder. It consists of explaining to the perpetrator his direct responsibilities. This measure applies to clergy, not only as such, but also as citizens of the state, upon the commission and prevention of even minor offenses. This clarifies the meaning of the offense and the undesirable consequences that await the culprit if he does not correct himself. According to the canons, the reminder can be repeated two or three times, after which a more severe punishment follows. (Ap. pr. 31; II Omni. s. pr. 6: IV E. In 1890, a new church law introduced for the first time a reminder as a measure of punishment, which is entered in a fine register and is accompanied by the payment of a fine at a tax rate. The second degree of punishment is suggestion, which is found in the most ancient church legal sources. In the first centuries of Christianity, incorrigible indoctrination was made by bishops and councils. When the council gave a reprimand, it was looked upon as a more significant punishment compared to the usual - or episcopal - punishment. Often the suggestion was made publicly. Later, on the basis of church-canonical institutions, suggestions are made by the subject authority to all those who did not want or were not able to use a milder punishment for correction - a reminder. Suggestions are not repeated. And for the stubborn and incorrigible, the subsequent measures necessary for their correction are applied (IV Ecumenical Society, pr. 19; Trul. pr. 8; Antioch. pr. 25; Sardik. pr. 13). The third measure of punishment is penance, or rather, removal from the place of service for a certain period of time. In the early days, those guilty of this punishment spent their sentence at the bishop's place of residence under his personal supervision. Later, they found it more convenient to send such guilty people to monasteries. They were sent there to endure the sentence under the direct supervision of the monastery authorities, where the detainee lived, strictly observing the monastic rules, spending most of his time in prayer, bowing and worship (Ap. pr. 12. 13, 16, 32, IV Ecumenical. pr. 5$ Carth. pr. 11, 29). The fourth type of punishment is the removal from office of persons carrying administrative duties. Such elimination can last a month or at most a year. The fifth measure is movement. It is used when, in the event of faulty behavior and reprehensible deeds, it is impossible for a clergyman to retain sufficient authority (Ap. pr. 81; IV Ecumenical. pr. 3). The sixth penalty is prohibition of religious service. The ban according to the canons can be temporary or permanent. The first is usually applied when the culprit has committed some offense in the performance of religious service. Such punishment can last from a month to one year. The prohibition applies for the entire duration of the judicial investigation of a clergyman who is accused of such a crime, which, if accused, may result in defrocking. Here the period of prohibition is indefinite. In both cases of prohibition, a person of clergy has the right to a certain part of the parish income. The second prohibition is permanent. It almost amounts to defrocking. This punishment is imposed for prolonged failure to perform official duties, and especially for indecent behavior, violation of order and discipline in the church, and in general, when a person of the priestly rank remains incorrigible after applying the above-mentioned gradual measures of punishment to him or brings himself to such a state that no amount of repentance can atone for all sins and earn the right to perform a sacred rite. A priest sentenced to such a measure of punishment retains his priestly title, remaining a clergyman only in name without the right to officiate (Ap. pr. 54, 56, 57, 58, 59, 61, 63, 65, 69, 81, Trul. pr. 27, Antioch. pr. 5, Vas. Vel. pr. 56, 64, 65, 69, 72 et seq.). And finally, the seventh punitive measure is cutting your hair. This is deprivation of dignity and the right to perform priesthood forever. At the same time, the removed person is deprived of the right to use the name and honors of the clergyman. This most severe punishment is applied to a person of the priestly rank who has fallen into a grave crime against church canonical rules, remaining, even after all successive measures of punishment, persistent in his error, affecting the foundations of faith and the church, for example, perverting the teaching of faith and the church, committing simony and other sins, such as robbery, murder and other immoral acts. III. Disagreements between civil (secular) laws and church canons or the question of whether a priest can retain his rank if convicted by civil authorities. Having said all of the above, we now intend to point out the disagreements between church rules and state laws that arise when discussing offenses committed by persons of clergy. Sentences pronounced according to these laws and rules sometimes conflict with each other. For, when a civil court sentences a person of clergy to urgent hard labor, the civil authority understands this in its own way, believing that this person (for whatever crime the sentence takes place) should be defrocked according to church rules. Meanwhile, in the canons and church rules from ancient times to the present day, not even a hint of such deprivation can be found. When a civil court sentences one of the clergy: a murderer, a robber, an immoral seducer or a traitor who openly betrayed his homeland, which the church, according to the canons, does not tolerate in its midst, although sometimes the secular authorities justify them in view of certain mitigating circumstances, the church authorities, I repeat, in no case can leave them without applying capital punishment to them. But when a clergyman, like every citizen, as often happens, makes some mistakes in the performance of his duties due to either ignorance of his work, lack of attentiveness, or a firm conviction that this is how it should be, so that the damage to the work was caused not by evil intentions, but by frivolity, and it is possible to make up for what was lost, then this person has not humiliated his priestly dignity so much that it would be impossible for him to remain a servant of the altar even after this person is removed from the position entrusted to him. The civil authority, condemning a clergyman for such an offense, finds it necessary to deprive him of his rank and thereby spiritually destroy him for the sole reason that this person was not able to perform administrative duties perfectly, even if this person remained a worthy citizen and priest throughout his life. According to the rules, the church authorities should not do this until everything possible has been tried to correct it, i.e. until all the measures of successive punishment prescribed by church-civil laws have been applied to him, and only after this person turns out to be incorrigible, the church resorts to the strictest measure of punishment - defrocking. Further, we will present indisputable evidence that spiritual courts are in no way obliged to reconcile with the decisions of civil authorities over persons of clergy rank, but are recognized by both civil and church laws to judge independently, impartially and according to conscience, with the exception of the case when a clergy person is condemned to death for flagrant atrocities. In Art. 170 laws on ecclesiastical authority very clearly indicate how the spiritual authorities should act in the case when clergy are subject to the court of civil authority for offenses. “When the competent civil authority condemns a clergyman for any offense, the proper diocesan court, regardless of whether it receives the verdict, is obliged to reconsider the case and decide whether the clergyman has committed any offenses contrary to his duties as a clergyman, and in the positive case, acts in accordance with Art. 96, pr. 1, of this law." And civil authorities should not interfere. In the next 171st century. The law in its first part repeats the same as in the previous one. The second part clearly and definitely says: “the diocesan spiritual court, based on the nature and importance of the act, decides whether in this case the application of Art. 174 and 184 of this law and, if these articles were not provided for by the civil court, makes a decision on the content of these articles over the convicted person.” So, the ecclesiastical court, in the case when the verdict of a civil court against a person of clergy comes to its attention, is given the right to reconsider the case and, according to the nature and importance of the act, make a resolution: is it appropriate and, if so, how and to what extent this person should be punished by ecclesiastical authority for the same act. It is interesting to note that the spiritual court has never exercised this right to essentially enter into the consideration of a criminal act in order to find out whether the person in question is so guilty before the church that it is impossible not to supplement the punishment imposed on him by the civil court with deprivation of rank. As a result of this misunderstanding of the law, gross and incorrect mistakes were made in our church when they defrocked persons guilty only of frivolity and negligence, along with murderers, falsifiers, robbers and extremely immoral persons. Therefore, it may seem that the Church makes no distinction between major and minor crimes, condemning to spiritual death equally those who have committed an offense through error and negligence, and those whose crimes truly offend the sanctity of the Church. So, civil authorities cannot prejudge the issue of defrocking clergy. And if anything has been allowed here until now, I repeat, it was only due to the incorrect application of the law. It is very strange and incomprehensible that sometimes a completely innocent person before the church, without any leniency or reflection on the essence of church rules, only because the civil authorities sentenced him to two or three years of hard labor, often for an unimportant act, is punished by the spiritual authorities as an apostate, robber, traitor or a person who has fallen morally, who for such atrocities really deserves to be defrocked, sentenced to hard labor or the death penalty. After all, a convicted and imprisoned priest, like a civil official, is actually deprived of the opportunity to perform his services and duties. What more can you ask of him? The consequence of a civil court verdict is defrocking only in the case where a clergyman is sentenced to death. Here the spiritual court seems to agree with the decision of the civil court, which will be discussed below. It is clear that, when pronouncing the strictest sentence on a clergyman, the civil authority certainly does not have the right to claim that the spiritual authority will also submit to its decision, since this latter is recognized by the church and civil laws to independently make its decisions, in accordance with the nature and significance of the criminal act, and nowhere, neither in civil laws nor in church rules, is it found that church authority on the issue of deprivation of the priesthood should be satisfied with the verdicts of the civil court, except, as stated, in the case of a death penalty. The law says about this: “A priest condemned to death is first of all deprived of his dignity” (1849, Art. V, p. 34). From what has been said, it is obvious that the spiritual authority only in one case makes a decision of a civil court, or more precisely, when condemned to death, consideration of the case by the spiritual authority does not take place, since the guilty person is first of all defrocked, and then this terrible sentence is carried out on him. In confirmation of the above-developed provisions, we cite the opinion of one canonist, recognized by the secular authorities, who very definitely says: “Along with the direct internal court of the church over a clergyman, the church also has the formal right to conduct an investigation, to impose punishment: defrocking, excommunication, etc., according to the gravity and essence of the crime committed” (Right Church. pr. p. 487, 479). The same canonist also refers to other canons of the Orthodox autocephalous churches, which strictly adhere to this canonical rule (Austria, § 29 ed. 1871, Greece, law 26/IV-1870 Russia, cons. st. §§ 177–8). And that this is so can be seen from the following example, which took place in Russia. The brochure by S. Kokhomsky “The Mystery of the Priesthood,” reprinted from the magazine “Church and Parish School,” describes the fact of one parish priest who was accused of murdering his neighbor, for which he was sentenced to hard labor. The priest was deprived of all rights of state, but was not formally disbanded, although he was prohibited from performing sacred rites. On page 12 of this brochure the following is said: “Deprivation of the rights of the state - this included the prohibition of Fr. John's priesthood. Then they demanded that he give a signature that he would not perform divine services as a priest, nor bless, nor dress in priestly clothing. He signed up for it." But when, before the expiration of the sentence, it became clear that the culprit of this crime was a completely different person, the priest, after lengthy hard labor, again began to correct his previous duties. Unfortunately, it very often happens in our country that a clergyman is defrocked without any attention to the church and priestly dignity. To confirm, let's take an example from the recent past. Milan Mihailovich, a priest from the Kaonsky parish, was sentenced by the court of appeal in 1901 (d. 231) for various abuses to eight years' imprisonment and, as a result of this verdict of the civil court, was defrocked. But 29 Oct. 1907 (d. 37/313) the Shabatsky local court established his innocence and he was released. Currently, this case No. 145 is subject to consideration by the Bishops' Council. What to do now? How to find a fair outcome? That the practice of our church used to be the same as in the Russian one is confirmed by the decision of the Bishops' Council of 1858, which, on the basis of canonical and state laws, gave the following explanation on this issue: “We declare that a civil court should not interfere in the case of defrocking and discuss whether a priest deserves this deprivation. The civil court applies other punishments, and the right to defrock remains with the spiritual authorities, which, together with the proceedings on the criminal act, regardless of the verdict of the civil court, decides the question of whether the priest can retain the priesthood or not. In the latter case, defrocking occurs according to the established procedure.” This is the competent opinion of the Bishops' Council on how to act in such cases. And what will the Bishops' Council decide on the basis of § 189 of the Constitution? and art. Chapters 16 and 19 20 laws on ecclesiastical authority has irrefutable legal force. And since without the grace of the priesthood, which takes its origin from the Divine source, there could be no church, it is obvious that both ordination and defrocking are strictly canonical institutions and therefore only church authority can make resolutions on defrocking and on the basis of canonical rules. This issue has been repeatedly touched upon by ministerial instructions, which we will dwell on. Five years after the explanation given by the Episcopal Council, December 30. 1863 (No. 3593) The Minister of Public Education in the manual for the Consistory says that a person of clergy rank may be subject to trial by both civil and spiritual authorities for the same crime. “The sentences of these two authorities are independent of each other,” with the exception of the case of sentencing a clergyman to death. “Then the church authority, before the sentence of the civil court is carried out, deprives the priest of his rank.” This means that defrocking precedes the execution of a death sentence. Four more years later, in 1867, on March 11, No. 479, the Minister of Education, with the consent of the Metropolitan, publishes guidelines on the same subject for Consistories: “in the case when a clergyman, by the verdict of the secular authorities, will be deprived of the priesthood for atrocities and disgraceful crimes,” etc. This means that the spiritual authorities deprive him of the priesthood only for criminal offenses, even if such crimes were not considered by a civil court. This is clear from the ministerial instructions we cited and § 243 of the criminal law: “Only those whose guilt is a great crime can be sentenced to death.” From the foregoing it is clear that no matter what verdict the civil authorities pronounce on a person of clergy, the church is called upon to make its decisions regardless of the verdict of the civil authorities. And only for major offenses the church deprives one of his dignity, but for unimportant ones it determines various other punishments, such as: deprivation of a parish, temporary excommunication, demotion, prohibition from performing sacred functions, and the latter can be temporary or permanent, depending on the significance and type of the offense, etc. To the canonical question we posed above: what is the significance of defrocking in the Orthodox Church, which is the result of a sentence from secular power? We, standing firmly on church canonical ground, must therefore answer that this has the same meaning for the church as if some person had been ordained by the definition of Soviet power. Patriarch Athanasius of Constantinople testifies to the same thing, when at the beginning of the 15th century he wrote to the Serbian bishops in Austria about the recognition of the Patriarch of Pecs: “Know that you are transgressing Divine and canonical laws: the work you have done does not matter and your non-canonical ordination is not valid.” (News of the Serbian Church for 1908, p. 300). So, everything that is illegal is not valid. IV. What is the significance of defrocking clergy when it is carried out by order of a civil court? From the most ancient times, the church had a certain area of its rights, strictly separated from state rights: the church did not allow anyone to interfere with its rights. These rights of the church, as we have pointed out, were recognized by the first Christian Emperors and the civil authorities were absolutely forbidden to interfere in the affairs of the church concerning its life. These rules have been preserved to this day: only later did the church institution on defrocking become distorted. In Christian times, all trials concerning the guilt of clergy were resolved by the court of bishops. The episcopal court defrocked clergymen guilty of serious crimes and then handed them over to the civil court. The process was heard by a civil court and, once it had established the punishment, the entire case was sent for evaluation by the bishop. If the bishop agreed with the verdict of the civil court, then he deprived the guilty priest of the priesthood, and transferred him to the civil court. In case of disagreement, the matter went up to the court of the Patriarch and the Emperor. The bishop had the right to judge all persons of clergy for any offense without distinction, with the exception of one: betrayal. This usual order has continued to this day. And when the spiritual authorities find the accused involved in a criminal act, they transfer the case to a secular court for further consideration. But strict punishment has never been applied in the Christian Church: defrocking for an unimportant, insignificant guilt, as, unfortunately, is practiced among us; It also happens in our country that a person is subjected to this heavy punishment for unimportant offenses, such as a trivial error in reporting. The Christian Church always, if there was no serious crime or low moral failure, first resorted to gradual measures of correction: reminders, suggestions, etc., and only if this did not help, the church did not stop at more severe punishments. It is clear that a person who has intentionally committed a crime must be immediately subject to a more drastic measure. And, conversely, if it is proven that someone committed a crime out of ignorance of the law, unintentionally, or through negligence, the court should treat such a person leniently, being satisfied with a mild punishment. To achieve the goal of punishment applied on the basis of canonical rules, it is necessary that any punishment imposed by a spiritual court should have a general meaning and binding force for all local Orthodox churches, so that none of them would accept into its fold a person of clergy rank, justly punished by excommunication or removal from service in another local church. In the Orthodox Church there was a custom of communicating decisions about defrocking in one church to all others, as a result of which all churches treated the culprit equally. But is it possible to notify the autocephalous Orthodox churches about sentences against clergy pronounced according to the definition of civil authorities? No, under no circumstances. Not a single autocephalous church would recognize such anti-canonical decisions regarding persons of clergy rank removed from St. altar without committing acts that are criminal against the church. Without any canonical obstacles or hesitation, such persons can be accepted as clergy in any autocephalous church. So, it must also be because those who have to be defrocked cannot help but regret in this case, realizing that they are not acting according to church regulations, but according to orders from the outside and against their conscience. Since there has long been a canonical rule in the Orthodox Church, according to which defrocking did not matter if it was the result of coercion or violence, this involuntarily begs the question whether defrocking by virtue of a verdict of civil authority, and not as a result of the strict application of canonical rules, has the same meaning as the defrocking of persons ordained for money? (Trul. Ave. 21, 22) etc. crimes. There is no doubt that for the Serbian Church, defrocking by virtue of civil laws did not matter. In confirmation of this, we point out the cases of Hieromonk Gideon of Savinatsk, Archpriest Yakovlevich of Rudnitsa, Priest. Vasily from Vinča, Archpriest Djuric of Uzhice, etc. Finally, we point out that the defrocking took place by virtue of an order or ruling of a civil court without the consent of the church or due to the admission of some injustice, or further, the deprivation did not have strictly canonical grounds - all the same, it is considered invalid. For the canons dispute the defrocking of clergy, even if it was due to the definition of spiritual authority, if in any way it disagrees with church rules (Ap. 28; I Ecumenical Collect. 5; II Ecumenical Collect. 6; IV Ecumenical ed. 29: Sardik. 14, 15). These unheard-of, very sad and insulting phenomena to the church occurred due to the fact that civil laws were written without the knowledge of the church and for the clergy. Moreover, these laws are interpreted in their own way, but one must take into account that persons of clergy, in addition to civil duties, bear the grace of the Holy Spirit given to them: the latter civil power cannot be given, and, therefore, cannot be taken away. That is why we say that such a sad phenomenon in the Serbian Church, as in all other cultural states, cannot remain without further violating the very foundations of canonical rules and without being a reproach for the holy order. The priesthood in our church, which is very sad, is left to chance. Meanwhile, as in the states of the same faith in the East, the priestly rank enjoys greater respect and is much more firmly secured by canonical rules. There, the local civil authority, even if it sentenced a person of clergy rank to hard labor, after serving the sentence, accepts him again and often leaves him in his original place. Civil authority unconditionally requires defrocking only in one case - when condemned to death. To confirm this, let us give two examples. Archimandrite Serafim Perović, who had served his sentence, was given the position of bishop in Mostar upon his return. Archpriest Daniil Studich from Vucittern, sentenced by the civil authorities to eternal hard labor, after being pardoned, received his former place. This was recently, and I think that he still retained this place, if he is alive. As for the rest, in the East it’s the same as here. Only the church defrocks immoral priests and villains. The participation of the civil authorities is expressed only in the fact that, at the request of the spiritual authorities, it helps the latter in the execution of this grave punishment imposed by the church. In the middle of the 15th century, Mahmud II, when he finally conquered the Eastern Empire and captured Byzantium, recognized, however, the rights of the universal church to all canonical privileges related to the court, which the church has enjoyed since the time of the Byzantine Emperors and which it has retained to this day. So, we have found out that the states in the East completely leave it to the spiritual authorities to independently assess the criminal act on the basis of church canons and come to the conclusion whether the convicted priest can retain his holy orders or not: while with us it is completely the opposite: the civil authorities, with their sentences, predetermine the issue of deprivation of the priesthood, which contradicts both basic state laws and church institutions. V. The difference in the degree of punishment for the laity and for clergy. Now we will point out the blatant injustice manifested in the disproportion of the degree of punishment of secular and clergy persons, as proof of which we will give several examples. One tax collector in Kraitsevets was sentenced to 5 years of hard labor for abusing the trust placed in him and embezzling 70 thousand dinars of government money. But this official, who has embezzled the amounts entrusted to him, after serving his sentence, may again occupy some or even the same official position. The absconding judge who embezzled 40,000 din was awarded the same punishment. (Vech. Nov. 1906 No. 296). And the regional clerk, who escaped with 10,000 din, suffered the same punishment. One customs official, who wasted 700 din., was sentenced to imprisonment for 1 year without deprivation of rights, and this relatively weak measure is explained by the fact that he had high patrons, etc. Let us now turn to the criminals from the clergy. One archimandrite, abbot of the monastery, was sentenced to 6 years of hard labor for missing three thousand and several hundred dinars. From the process it is clear that he did not spend even a small part of this money on himself, but in small things, up to 200 din, he spent the money, without putting it in the books, on the monastery; As a result of many years of management, a deficit of the indicated amount was obtained. And indeed, soon - as the year went on - it became clear that the money paid to the workers was not entered in the expense books. But the audit commission did not recognize the list of such amounts issued without recording as spent correctly, although the workers categorically confirmed receipt of the money. That. and all the money for which confirmation of receipt has been received is nevertheless attributed to the deficit, which arose as a result of allegedly abuses in office. Moreover, the very deficit that formed the basis for the accusation against the abbot was completely covered from his own 7,000 dinos, which were kept in a savings bank and constituted his pension fund. As a result, the monastery did not have any monetary claims against him. Having examined the matter from the material side, let us now dwell in more detail on the personality of this archimandrite in order to be able to answer for ourselves what he deserves more for his activities: praise or punishment. This man very successfully graduated from the theological academy; passed the professorial exam: was an impeccable mentor: wrote many useful articles of spiritual content; worked intensively in one spiritual publication useful for the church: he was a member of the board of the “Union of Priests”; was the editor of his organ: “Bulletin of the Serbian Church”: his behavior was modest and deserving of all praise: moreover, he was a pretty good preacher. At one time he fulfilled the patriotic mission entrusted to him abroad. He is remembered with love by his disciples, now priests, as a kind mentor. Some of his disciples, who took monastic orders from him and then carried out important church and popular missions abroad, have now reached high positions. He did not ruin the monastery and its property, but on the contrary increased it. Upon his accession to the abbot, he paid about 7,000 din. monastic debt. I planted an orchard, which had never happened before. Then, on the site of the Moravian field he had chosen, he was the first to plant vineyards and began to develop them. Many economic experts are surprised at this place, because it is wonderful in all respects; They were amazed that no one had thought of taking up the task of cultivating it before: here, after all, it is possible to plant more than a hundred thousand vines. The current rector continues the work of his predecessor, repeating: “The archimandrite has immortalized himself with his work.” And, indeed, without touching on minor mistakes, the archimandrite had extensive economic knowledge. On economic issues, he wrote a solid essay, indicating the path by which the monasteries could raise their economy so that within five years it would generate enormous income. This extensive work amazed everyone with its simplicity of presentation and depth of content. In our opinion, anyone interested in farming should get to know him. And so, despite this, they not only put an end to his economic activities, but took away from him everything that was necessary for the simplest life. Was it appropriate to finally destroy such a useful church worker just because, unfortunately, at the theological academy they do not teach accounting? And was it possible to refuse his request for a pardon, when both state laws and church canons give him the right to do so; after all, everything happened due to his inexperience in keeping records, and not at all due to malicious intent. Another example. One priest, very honest, modest and serviceable in his position, was unfortunately appointed rector of the church; Having become confused in the reporting, he was unable to justify the expenses of 400 din., for which he was sentenced to 4 years of hard labor. Finally, let us give one more example, from which it is clear that in our country the priesthood, unfortunately, is some kind of toy. Deprivation of dignity in our country came down to the same thing as the removal of a low-ranking employee from his place only because, by chance, one of the higher ones failed to please him. Two years ago, one hieromonk forgot to include 25 din in the monastery report. and 75 para. It could easily be that he did not forget, as he claims, but simply kept the money to himself. But, after all, this is only 25.75 din. and nothing more! By a civil court he was sentenced to 2 years of hard labor: after one year had passed, the Minister of Justice accidentally drew attention to this insignificant crime and in a private conversation brought this to the attention of the Head of State. The convict's request was soon followed by a pardon and gratitude to the Minister of Justice for his attention to victims of heavy punishment for minor offenses. A little later, a decree was issued from the Minister of Justice to deprive the pardoned man of his rank, although nowhere in the law can one find a rule requiring a second punishment to be imposed on a person who has already been released from it. The Ecclesiastical Court declared a thoroughly motivated protest against such obvious injustice, but the minister remained of the same opinion. Conscience did not allow the spiritual court to carry out this order of the minister and the court turned to competent persons and eminent jurists for clarification: is it permissible for a sacred person 1) because of 25 din. and 2) the already pardoned person was still defrocked? Everyone unanimously answered that there are no such laws to again punish with moral death those who were once pardoned. Only one young lawyer agreed with the minister’s opinion, adhering to the strictly literal meaning of § 18 of the Criminal Law; but we know how deeply and rudely a hostile hand, grasping at the letter of the law, invades the law! Finally, the spiritual court, asking for an opinion, turned to the Court of Cassation, but the latter suggested turning to the proper authority. The spiritual court had no choice but to act on the orders of high-ranking officials. And the hieromonk, who fell like a pathetic slave for 25.75 din., during his imprisonment was already under a ban from performing priesthood, that is, his priestly rank had no legal significance. Therefore, the culprit suffered punishment both as a priest and as a citizen, although he was pardoned by the Crown both as a citizen and as a priest. The decree in which he was granted pardon and which was communicated to him by telegraph said that he was exempt from further serving his sentence - hard labor. While this case, contrary to law and justice, was in motion, moving from lower to higher authorities, the Minister of Justice dated January 19. 1908 demanded to know whether this hieromonk was deprived of his dignity, and if not, then why and when it would be done. Yes, it is truly unheard of for civil authorities to not allow the spiritual court to decide according to truth and conscience, but, to great surprise, to demand that the spiritual authorities pronounce sentences pleasing to the former. Where is conscience and truth? From these examples it is obvious how great the disproportion is between the verdicts of the courts over persons of civil and clergy rank. Guilty secular persons, compared to persons of clergy, not only bear less strict liability; but they can, after five years of serving their sentence, take their previous position, with all the rights and benefits assigned to it. Meanwhile, as persons of clergy, performers of St. sacraments, and for lesser offenses are severely punished by the civil court; In addition, they are deprived of their dignity, and thus thrown out of the normal rut of life, eke out a miserable existence until the end of their lives, like the existence of the last unskilled worker. So, it turns out that persons of clergy, along with the disproportionate punishment, are punished twice for the same offense, which goes against both canonical rules and state laws. And if anywhere, then in any case here it is precisely the legislators and judges who should be charged with grave guilt for the fact that they pay little attention to the instruction that the church rule teaches them: strictly observe, so that the beginning of Christian love and compassion for the infirmities of people does not suffer. Indeed, here one cannot help but see the implementation of draconian measures in life. According to the rules of the church, defrocking should not be allowed for the just-mentioned non-malicious irregularities of clergy. For a clergyman who, with a clear conscience, like any owner, spends money on the household, thinking that this is how it should be and that there is no sin in this - such a person, just because he did not record the 25 din spent in the books, is deprived of his dignity - this is tantamount to inflicting a great atrocity on the church. According to all the numerous church canons, for such matters, the church unconditionally demands from each of its forgetful servants that all shortcomings and losses resulting from his faulty activities are covered by material compensation, even if the missing money was not appropriated by the perpetrators, and the losses were not intended for a selfish purpose. Then, the church once and for all deprives such persons of the right to manage the household; This church measure prevents the inattentive and forgetful from repeating such irregularities in the future. In any case, the church does not demand that an almost innocent person who accidentally committed some malfunction be wiped off the face of the earth, especially since these persons in life can be useful citizens, clergy, exemplary workers, in a word, excellent figures in the church and state. “If a bishop or abbot would distribute monastery property, then such, according to rights. 13 n 19 VII Universal. Sob. returns, and (the culprit) is exiled to another monastery for obedience.” - And if someone appropriates something that belongs to the church, see the law. 72, 73, must return five times as much; in addition, subject to excommunication. The character speaks about this as well. Trul. 79, Antioch. 24, 25, I-II Coll. Ave. 10, Kir.-Alex, Ave. 2. From what has been said, it is obvious that a person of clergy who has committed a non-malicious omission, in the form of punishment, compensates for the material damage caused by him, and is also deprived of his place. In our country, unjustifiable violence is committed against a clergyman, contrary to both civil and church rules: the one who accidentally commits a crime is punished with triple punishment - 1) hard labor, accompanied by 2) defrocking and 3) loss of the right to a pension. A Priest. Scripture commands: “Thou shalt not avenge the same guilt twice.” The same is in the canons. (Ap. pr. 25, Vas. Vel. pr. 3, 32, 51, Corner. Law. § 338). “Non bis in idem” - dictates Roman law. The same case cannot be brought before the court twice. This is the custom among all cultural peoples and nowhere else, but only among us, on the contrary, persons of clergy not only suffer disproportionately heavy punishments compared to the laity, but even for the same guilt they are subject to double and triple punishments. VI. Do clergy have the right to pardon? We make another sad exception for people of clergy, namely, they are denied the right to pardon. Circular of the Minister of Education dated December 21, 1907 No. 2391, explaining this issue, does not take into account Art. 197 of the Law on Church Authorities and § 51 of the Charter. Meanwhile, according to canonical rules and basic state laws, this right belongs to every citizen. A well-known canonist says about them: “The Church recognizes the Head of State, as the Supreme Defender of the Church and the Guardian of Church laws, the right to pardon clergy who, in the opinion of the highest church authorities, deserve such leniency.” – “Kings preserve the Church” (Is. 39:21). - “They will be guardians of the faith and Divine commandments” (II Sam. 5:3). And the aforementioned article of the law on church authorities says: “Persons of clergy, sentenced to punishment by church authorities, can appeal to the king with a request for pardon.” “The filing of the petition delays the execution of the sentence.” If such a law exists, the question is whether it is possible for a person convicted by a spiritual court to be arbitrarily deprived of his last hope of receiving a pardon. The law states that “the execution of a sentence is delayed when a person files a petition,” which means that the right of such a petition is assumed to be undoubted. If, further, we assume that it is impossible only in those cases where the guilt of a clergyman is established not by a spiritual court, but by another, then the verdict of such a court on defrocking cannot, as we have proven, be considered valid. We do not have a law according to which a person of clergy can be deprived of his rank when there has not been a ruling on this by the spiritual court. On the contrary, in this article, although it does not indicate the offenses of a given person, the consequence of which is this punishment, it is emphasized that an application for pardon can only be made if the decision comes from the spiritual court. But, if we agree that this article does not extend its force to persons of clergy, we would have to come to the conclusion that cases of this kind are not within the competence of the spiritual court, but by virtue of Art. 18, are subject to the jurisdiction of the civil court. However, the effect of this article again begins only from the moment when the decision of the spiritual court has already taken place in the case. That is, until the spiritual court has considered the case, until then cutting off the face is simple violence, contrary to canonical rules. So, analyzing this article in detail, we come to the conclusion that it refers specifically to persons of clergy rank and those convicted by a spiritual court. According to § 51 of the Constitution. The king has the right to pardon criminals. Is it possible to deny this to clergy who have not committed either a serious crime or an immoral act, when every citizen has such a right, even those sentenced to long-term hard labor, especially since this right is based on state laws and church canons. One must be surprised that when drawing up the above-mentioned Circular No. 2301, they did not take into account that the ministerial interpretation of the law contradicts § 37 of the Constitution, which states: “The interpretation of the law belongs only to the legislative branch.” We also have to regret that the protests that pointed to the illegality of the circular were ignored (response to the cir. E. Vr. dated 28/XII-1907). All correspondence regarding this case was left without consequences. The persistent protest of even one bishop, who is generally strictly responsible even for unimportant offenses, went unnoticed. In response to the written arguments sent, the following responses were received, among other things: due to non-execution, “no arguments can be accepted until the sentence of dismantling is carried out.” When I tried again to get an explanation, a telegraphed response followed: “I urge Vasya to be defrocked as soon as possible and to notify me of the execution.” The most surprising thing is that this circular and the hasty correspondence about it were timed to coincide with Christmas and New Year, between December 24 and January 14 of the last and current (1908) years, which caused considerable confusion in the church. So, the state power did not heed any admonitions from the spiritual authorities, but steadily demanded that this drastic measure be put into effect. By nature, all people are imperfect. And judges can make mistakes. When judges are unable to achieve the truth through their own efforts, they call on God as a witness to the truth, that is, they force the persons participating in the case to take a solemn oath that their testimony, as given before God, is completely consistent with the truth; The same means of achieving the truth and getting rid of the fatal mistake of accusing an innocent person is pardon. Do clergy really not deserve such leniency? With us it's the other way around. In our country, as happened last year, philanthropy and Christian charity are forgotten, state laws are ignored, as well as what the Holy Scriptures and canons call on the weak and strong and all those who have the lot to be the arbiter of the destinies of the state. “If anyone rejects someone who turns to him, let him be like an exile, since he grieves Christ, who said: “There is joy in heaven for one who repents” (Ap. pr. 52, Trul. pr. 102, Vas. Vel. pr. 74, Laodice. pr. 2). Let representatives of the Church and legal legislators, with all possible care, find out for themselves how much more severe defrocking, equated to civil death, is compared with all kinds of other punishments, and then understand whether it is possible to demand that the one who has suffered punishment for his guilt should again be deprived of everything, as if he had committed a new grave crime, and not one that had already been atoned for by the punishment already imposed; and, moreover, is it possible for such persons to have the right to petition for mercy before God’s Anointed One, who is authorized by God, the Church and the people to provide assistance to human weakness. But there are people who reject this right with contempt, believing that they alone in the entire vault of heaven have a completely clear conscience and that they are called upon to throw stones at the sinner. Representatives of the Serbian Church have always been far from saying or writing anything in defense of immoral people, deceivers, etc., whom society does not tolerate, the church expels from its midst, the civil court sentences to fair punishment, in a word, all those whom reminders and other measures of influence were not able to correct and lead to the right path. Church representatives have always treated such persons with strict but fair condemnation, regardless of the social status of the perpetrator. No one can blame them for deviating from this path. Not to help someone who once in his life, due to natural forgetfulness, fell into a mistake and did not have the opportunity to correct this mistake, of course, if he is not morally fallen and not a villain, not to support him - this would be a mortal sin. Meanwhile, such a sad phenomenon exists in our church, in our state, where very often, due to the arbitrary interpretation of state laws by individuals, the holy order has lost its meaning befitting it as a Divine institution, which has its obvious justification both in state laws and in church canons, which were written at a time still illuminated by the morning light of the Gospel teaching, and in all Orthodox Eastern states solemnly recognized and approved. The priesthood, this Divine institution, without which the Church on earth is unthinkable, is still being shamefully violated, and therefore the Holy Episcopal Council, as a representative of the Serbian Church, should take upon itself the defense of this institution: not allow the illegal deprivation of clergy of the right to pardon; and most importantly, it is necessary to counteract in every possible way that abnormal state of affairs in which spiritual authorities are forced from the outside to take away what for clergy is the most precious and essential asset: to deprive them of their dignity, without having any basis for this in the canons of the Church. Indeed, this situation creates temptation among the people and unrest in the church government. Previously, as far as possible with hasty work, we tried to find out that defrocking, when it is a consequence of a verdict of a civil court, commits an unjustifiable blatant injustice in the Serbian Church, undermining the authority of church canons and state laws and shaking the foundation on which the Church of Christ is based. This deals a strong blow to the Church, since the highest asset of its servants - the holy order - is devalued and this Divine gift is equated with an ordinary worldly position. This is unacceptable in an Orthodox state, which must be distinguished both by the purity of the faith of its subjects and by their adherence to the Divine institutions of the Church. Unfortunately, the civil government, equating the priestly rank with those ranks and orders with which it bestows on its executive officials, demands for persons of the clergy title, in the event of their being sentenced to imprisonment, deprivation of the “rank”, thus treating them as ordinary officials when they are deprived of distinctions, ranks, orders, etc. A person of clergy rank, while imprisoned, is thereby deprived of the opportunity to perform sacred functions, just like any civil official, no matter how high a position he holds, is deprived of his ranks and uniform during imprisonment: but later, upon release, both can be returned to him. The same should be done with every clergyman, if he did not commit some repulsive criminal act, but through negligence fell into a mistake - an oversight. Defrocking in such cases should not take place, since the priestly rank is significantly different from the civil ranks. In fact, when a person of clergy rank is sentenced to hard labor, he consequently loses positions and ranks received from the state, such as secretaryship, parish, viceroy, archpriest or abbot in a monastery. All these ranks and positions are complained to him by the state and, in case of conviction, are taken away by him, like any convicted official. But the priestly rank, ordination, tonsure are bestowed by the church, which alone can take them away if it finds the bearer unworthy of it. In the same case, when the spiritual court did not see in the case of the convicted person any disgraceful act for which it is necessary to cut him off, “the bishop, at the request of the court, must impose on the person sentenced to punishment for the entire duration of his imprisonment a ban on performing sacred acts. In this way, priests would be equalized with the position of convicted secular persons. Finally, it would be possible to extend this prohibition for five years from the moment the sentence is served, which would achieve complete equality with the similar situation of civil officials, to whom, after five years, as stated, access to public service is again open. And since a condemned civil official can again achieve his former position, why cannot such a right be recognized for a clergyman, as is practiced in the East, where canonical rules are strictly adhered to in this matter. This, of course, is only the case if a person of clergy has not committed major and immoral crimes, because of which the church excludes him from its midst, even if the crime was not condemned in a civil court verdict. But, if a person of civil order, no matter what crime he has committed, can be restored to his previous position, then still this cannot be allowed in relation to clergy who are guilty of serious crimes: such people must be defrocked once and for all. In the very near future, the Holy Council of Bishops will have to express its authoritative word against worldly interference in the rights of the Church and attacks on the priesthood. Otherwise, the rulers of the Church will bear heavy responsibility for their cold-blooded connivance in defrocking, regardless of the existence of canonical decrees. Of course, any inaction and silence in this matter would bear bitter fruits. For, if such a temptation continues to remain, then the spiritual court and bishops will have to defrock against their conscience, and such deprivation, inconsistent with the canons, has no meaning, and a priest who has been subjected to the said punishment under such circumstances has the right to continue his priestly service. Thus, an unheard of precedent would have been created in the Orthodox Church and a well-deserved reproach would have fallen on its contemporary leaders, recorded in the tablets of church history: the modern generation would have passed on to posterity a worthy assessment of such a sad phenomenon. The Holy Episcopal Council is called thus. to streamline this abnormal deviation from canonical norms created by our reality, which in other autocephalous churches is impossible to even imagine. For, as we said, if this does not remain unchanged in the future and the issue of defrocking clergy is not settled on the basis of canonical rules, as it was from the very beginning of the church until recently, then again, we repeat, the terrible guilt before the Orthodox Church and the State will fall on the direct representatives of the Serbian Kingdom, which must preserve for the Serbian people the most precious thing that meets their moral needs: the greatness and independence of the Church. Finally, the Council is obliged, in our opinion, to draw the special attention of the Government of His Majesty the King to this circumstance with a proposal to take upon itself the development of a law on the priesthood, coordinating it with the requirements of the canons and state laws so that this sad anomaly disappears and a proper, fair order is established. In view of the fact that in recent years the state authorities have often and persistently demanded the defrocking of persons of clergy who were sentenced to hard labor by a civil court, which is why the authority of the church is falling and the sanctity of the establishment of the priestly rank is being diminished, the Holy Council of Bishops found it necessary to dwell in detail on this sad phenomenon and take the necessary steps to protect the inviolability of church institutions. For this purpose, the Council examined the canons relating to the issue of the importance and inviolability of the priestly rank, and also reviewed those exceptional cases and offenses for which a person of clergy should be deprived of the rank, and came to the following conclusion: Persons of clergy through ordination receive the grace of the Holy Spirit, which can only be taken away from persons unworthy of it by the church that bestowed it. The Church does this according to the verdict of the spiritual court. According to the canons, a civil court cannot deprive a priest of the priesthood. The verdict of a civil court cannot concern the priestly rank, since the latter belongs exclusively to the competence of the spiritual authority. There can be no doubt about that. that the civil court incorrectly equated the priestly rank with a civil or military rank and demanded the unconditional deprivation of the rights and privileges of persons of clergy rank sentenced to 2 or more years of hard labor. This is not done in any of the Orthodox states, where the civil authorities leave it to the spiritual authorities to decide for themselves what consequences regarding the rank will be suffered by a person of clergy rank convicted by a civil court. Based on the canons, not only for persons of clergy, but also for secular persons, there is a whole gradation of penalties applied in each individual case according to the degree of importance of the crime committed and determined exclusively by the Church. For persons of clergy rank, the following punishments are applied for the most serious crimes: penance, temporary removal from service, prohibition to perform sacred functions forever: degradation, that is, deprivation of the highest rank or deprivation of an administrative position, and, finally, complete defrocking or defrocking, which is tantamount to the death penalty. Without a doubt, we would have fallen into a grave mistake by allowing defrocking as a consequence of the verdict of a civil court, on the one hand, because this would be a second punishment for the same criminal act, on the other hand, because no authority other than spiritual should touch the priestly rank and, finally, most importantly, defrocking here would be only an additional and secondary punishment, only a consequence of the first punishment, whereas in in fact, this punishment should be considered the most severe, equal in force to the death penalty. This blatant injustice, which is not found in any Orthodox country, persists in our fatherland due to the literal interpretation and application of the law. In our state, as is practiced in all cultural states, until very recently it seemed to the spiritual authorities themselves to make determinations concerning the rank and position of clergy, even if the latter had already been held accountable for their offenses before a civil court: and only very recently the spiritual authorities were deprived of this right to enter into the merits of the consideration of the guilt of the defendant, already pronounced by the civil court, and they began to strictly and unconditionally demand unquestioning obedience in the execution of the sentences of the civil court. up to and including defrocking. In such cases, the church authorities, especially the bishops, were in great difficulty and bewilderment. Aware of the importance of the priestly rank, but at the same time wanting to show by example how respect one should treat secular authority, the spiritual authorities mechanically carried out sentences of defrocking, which contradicted both its convictions and the high importance of the mystery of the priesthood. Recently, demands from civil authorities for defrocking even for minor offenses have become more and more frequent. For example, you can point to the following specific case. A priest who was recently sentenced to punishment and defrocked was acquitted during a second review of the case. Taking into account how difficult it is to restore rank according to the canons, and also that deprivation of rank according to the canons is allowed only when committing a grave crime for which the civil authority imposes the death penalty, or for extremely immoral acts that make the holder of the rank unworthy of it, the Holy Episcopal Council, in order to prevent such untruths in the future and to completely eliminate the unfair participation of the civil authorities in this matter, - 2) As soon as it comes to the attention of the spiritual authorities that a person of clergy has been sentenced to punishment by a civil court, he must collect all the necessary documents on this case and submit them to the Council of Bishops for consideration to decide whether it is possible for this person to remain or not. If the Council of Bishops finds the crime committed so serious that the condemned person is not worthy to be a bearer of the rank, it sends the case to the spiritual authorities for judgment in the usual manner. If the Episcopal Council finds that the convicted person can retain his rank, then the Council determines, on the basis of the canons, in what position this person will remain in the clergy after serving the sentence imposed by the civil authority. 4) Sentences against persons of clergy rank passed for political crimes, excluding treason, do not entail defrocking, and therefore spiritual authority should not interfere in matters of this kind. 5) To petition, through the Minister of Education and Ecclesiastical Affairs, before His Majesty the King for the necessary changes in the laws, according to which the ecclesiastical authority would be given independent decisions on whether a clergyman convicted by a civil court can retain the priestly rank. For some time now, Mr. Minister of Education and Church Affairs began to evade accepting petitions for pardon from clergy sentenced by a civil court and presenting them to His Majesty the King. G. The Minister is justified by the fact that, on the basis of § 137 of the law on ecclesiastical authorities, it is his duty to present these cases to the Sovereign only if those concerned are sentenced by a spiritual court, and priests convicted by a civil court can submit their petitions through the Minister of Justice. The Council finds that persons of clergy, especially those who, as a result of the verdicts of a civil court, should be defrocked, can naturally ask for pardon from the Sovereign, as the Anointed of God, through the Minister of Education and Church Affairs and, according to the law on ecclesiastical authorities, the Minister of Education must forward their petitions to the discretion of the Sovereign, since the verdicts of the civil court are transferred to the ecclesiastical court. Therefore, the Episcopal Council Ask the Minister of Education and Church Affairs not only to accept the petition of convicted priests in the future, but to direct them to their destination and provide, as before, possible support, and especially if such petitions with proper motivation come from Bishops. Dinar, franc or 37 kopecks. with our money. A pair is 1/100 of a dinar, with our money 1/3 of a kopeck. The article refers to the situation in Serbia (Editor's note) For each of these crimes, several canonical rules can be given, but we will limit ourselves to only one, according to which in the interpretations it is easy to find other rules relating to this subject. See rights. Church Law of Dr. N. Milash, p. 180, ed. 1890 You might be interested in: