Abbreviated course of lectures on church law

Contents Introduction Religion and religious union Church and church law The formal nature of church law The position of church law in the whole system of law The relationship of the science of church law to the theological and legal sciences Historical outline of the literature of church law Church jurisprudence in Russia The task of the science of church law System of church law Part 1. Sources of church law I. Theoretical doctrine about the sources of church law, their types and relative importance Legislation as a source of church law Custom as a source of church law II. History of the sources of church law Section 1. History of the sources of general church law Period I from the beginning of Christianity to the first ecumenical council of 325 Sources of church law in this period Collections of sources of church law Period II. From the era of recognition of Christianity as the state religion to the publication of the Photius Nomocanon (312–883) I. Sources of church law in this period II. Collections of sources of church law a) Collections of purely canonical Σύνταγμα κανονικόν b) Collections of purely civil c) Collections of mixed content or nomocanons New edition of the Nomocanon in 14 titles and canonical Syntagma in 883 Period III. From the publication of Photius' Nomocanon to the fall of the Byzantine Empire (883–1453) Source of church law in this period a) Resolutions of the patriarchal synod and canonical answers and treatises of individual hierarchical persons b) Legislation of emperors on church affairs Interpreters of the canonical code of the Eastern Church in the 12th century: Alexius Aristinus, John Zonara and Theodore Balsamon Alphabetical canonical Syntagma of Matthew Vlastarya Branch 2. History of the sources of Russian church law I. The fate of the Greek Nomocanon in Russia The original Slavic-Russian Nomocanon and its later edition Russian Helmsmen of the Moscow period Printed edition of the Helmsman 1650–1653 Composition of the printed Helmsman Attempts to replace the old translation of the Helmsman with a new one II. Sources of Russian church law proper Ecclesiastical charters of appanage princes of the 12th century Khan's labels General overview of the most important monuments of state legislation on church affairs belonging to the Moscow period of our history Charters of grant to bishops and monasteries General overview and characteristics of the sources of Russian church law from the time of Peter V. to the present Part 2. System of church law Part 1. Church structure Chapter 1. Personal composition of church society Various classes or states in church society 1. The state of the clergy or spiritual hierarchy. Methods of acquiring a hierarchical title in the church Conditions for receiving and communicating ordination General rights and obligations of members of the clergy, as a special class in the church and state Loss of clergy and its consequences 2. Monasticism Conditions for entering monasticism The procedure for acceptance into monasticism Monastic vows and the resulting derogation of personal, property and ecclesiastical rights (capitis deminutio) of monasticism The internal structure of the monastic community Loss of monastic status and its consequences 3. The condition of the laity, or ordinary members of the church community The rights and duties of the laity in the church Loss of ecclesiastical legal capacity Chapter 2. Church government (hierarchia jurisdictionis) General provisions Diocesan bishops The procedure for the election and installation of bishops Contents of episcopal power Differences of the episcopal rank Limitations of episcopal power Officials and institutions for diocesan administration a) Parishes and parish clergy b) Deans c) Spiritual Consistories C) Vicar bishops Administration of the clergy of the military, courtiers and those serving at embassies Chapter 3. Bodies of higher administration in local ones autocephalous churches 1. Bishops with highest administrative power a) Metropolitans b. Patriarchs b) temporary councils c) Permanent councils, or synods Chapter 4. The structure of the highest church government in the Russian Church Metropolitans and Patriarchs The Most Holy Governing Synod The establishment of St. Synod Personnel of the Synod Circle of activities of the Synod Officials and institutions under the Synod Chapter 5. Organization of the Roman Catholic, Evangelical Lutheran and Armenian Gregorian churches according to their statutes included in the Code of Laws of the Russian Empire A. Roman Catholic Church B. Evangelical Lutheran Church C. Armenian Gregorian Church Part 2. Church administration Chapter 1. Church-criminal court Historical outline of criminal ecclesiastical jurisdiction Church-criminal court in Russia Doctrine on church punishments Consequences of excommunication Chapter 2. Church judicial system and legal proceedings Instances of the church court Proceedings in the spiritual court A. Divorce cases B. Cases on recognizing marriages as illegal and invalid C. Cases on certification of the event of marriage and birth from a legal marriage Chapter 3. Marriage law Canonical definition of marriage Competence of legislation and court in matrimonial cases Conditions for the validity of marriage a) Free consent of the spouses b) Physical and spiritual capacity for marriage c) Widowhood after a third marriage d) Condition under a judicial prohibition to marry. 4) Unity of religion 5) Lack of close kinship between spouses A. Natural or consanguineous kinship Degrees of consanguinity in which marriage is not permitted B. Artificial or derivative kinship Physical or illegal kinship (by birth not from marriage) Kinship as an obstacle to marriage in Russia Conditions of marriage that do not affect its validity Forms of marriage in their historical development Christian form of marriage Russian form of marriage: folk and church The procedure for performing marriages according to previous and current Russian laws Termination of marriage Mixed marriages About metric books Issuance of metric certificates Chapter 4. Property law of the church Property legal capacity of the church Subject of ownership of church property Objects of church property law, or types of church property Methods of acquiring property under the current law Privileges of church property On the right to use and immediate disposal of church property Management of church property Alienation of church property Religion and religious union The subject of our science is a special original branch of public law, namely the law of a religious Christian society or church. To understand the nature and special character of this right, it is necessary to understand the concept of religion and religious society in general. Religion is the totality of ideas that prevail in a given human society about God and His relationship to people. The subjective source of religion is man’s innate sense of dependence on the Supreme Being, and the objective basis of the Divine itself for man, which he usually sees in the first stages of his development in menacing or beneficial phenomena of nature. This is the origin of all so-called natural or pagan, i.e. national religions. But world history also knows two forms of real revelation of the Divine to man, namely the Old Testament revelation given to the Jewish people, and the New Testament revelation given to the entire human race by the Redeemer of the world, the Only Begotten Son of God Jesus Christ. Any objective religion unites people not only with God, as an object of common worship, but also with each other, as members of one religious union. But only a Christian religious union can bear the name church, that is, such a religious communion of people that is completely different and independent from all other forms of human community. Pre-Christian antiquity did not know either a religion outside of nationality, or a special religious union distinct from the state. In ancient times, there were as many nations, languages, as many religions, which in this sense, as “naturally national”, are called pagan. Religion served as a distinctive feature of nationality as language. It constituted the main distinguishing feature of nationalities and the predominant element in the spiritual and civil life of peoples. All primitive states in the east had the character of theocracies: the will of the Divine ruled here the entire social life of the people; through the lips of the priests, she dictated laws and decided questions of right and wrong. Thus, the religious and political life of the people rested on the same foundations; religion and law were one and the same. But the political genius of the European peoples of antiquity, the so-called classical peoples, especially the Romans, created, in contrast to eastern theocracies, a purely civil or legal state, in which religion was no longer the dominant, but a service element, subordinate to state interests and goals. Accordingly, this emancipation of the civil order from the religious in the Roman state, where the sacra publica formed only part of the state structure, and religion in Christianity is the absolute beginning of social life, is freed from narrow forms of nationality and statehood. Here, in Christianity, God ceases to be a national deity, the state does not, as before, embrace the entire spiritual life of man, individuals receive such views, ideas and feelings, due to which they recognize themselves not only as Hellenes, Romans, Jews, but as members of one great human family, children of one common Heavenly Father. Church and church law A religious union formed according to the absolute principle of the Christian religion is the Church of Christ. It recognizes itself directly as a divine institution, in which and through which the idea of ​​the kingdom of God, a kingdom not of this world, is realized in the human race. These names indicate the inner, invisible side of the church, as a union of believers in Jesus Christ, the Redeemer of the world, who gave humanity the strength and means to achieve its highest goal - reconciliation and, as it were, a substantial union with God. In this invisible kingdom of God, exclusively the will of God reigns, embracing and transforming both the inner world of individuals and entire masses of people. About this kingdom of God, in the words of the Gospel, it cannot be said that it is here or there (Hebrews from Luke XVII, 20-21.) But, on the other hand, the church, as the kingdom of God in this world, as a human union, is a visible society of believers in Christ, which has its own special external organization, the external order of its life. With this order, it necessarily enters the field of law, firstly, in itself, as an independent organism, as an institution realizing a specific and necessary life goal, namely the goal of the Christian religion; secondly, in its relations to other social unions, political and religious, standing in the same sphere of public law. The basic norms of church life and church relations are given to the church along with its existence by its Founder Himself: they constitute an unchangeable canon for positive church law, that is, for the entire set of norms that determine both the internal and external relations of the church. This law is called ecclesiastical and canonical. We can use either name indifferently; but one cannot help but notice that in the Western European literature of our subject these names are far from identical. In the West, the name of canon law is known as the law contained in the historically formed “Corpus iuris canonici” of the Catholic Church. This book of church laws was formed during the Middle Ages, when the Catholic Church and its head, the Pope, had a powerful influence on all aspects of the social life of Western European peoples. Therefore, the “Corpus iuris canonici” contains not only ecclesiastical law, but also secular law, insofar as it was formed under the influence of the church. And so, if we, based on the assumption that the “Corpus iuris canonici” contains valid law, build a dogmatic system of this law, then it will be a system of canon law. On the contrary, under the name of church law in Western literature is meant a set of norms regulating purely ecclesiastical affairs and relations, even if these norms originated not only from the church authorities, but also from the state. For us Russians, I repeat, this difference does not matter: we can call our subject both canon law and church law. The fact is that the Eastern Church has never, in principle, arrogated to itself the right to deal with affairs and relations that are purely civil or secular. If many of these cases were and are partly now subject to its jurisdiction, then this, from the point of view of Orthodox church law, is nothing more than a concession to the state power itself. Thus, if we call church law canonical, then we will only indicate the dominant element in the content of our science, consisting of church statutes or canons, on which state laws concerning the church should be approved. If we call our subject church law, then we will indicate that the norms that make up this law regulate purely ecclesiastical affairs and relations, even if these norms did not originate from one church, but also from the state. The formal nature of church law If in the church, as we see, a certain external or what is the same legal order is necessary and actually exists, then in what sense is the concept of law in general applicable to this objective law of the church? Do the norms of church life, created by the church itself, if they have not received sanction from the state authorities, have the meaning of legal norms? In other words: can canon law really be called law in the proper sense of the word? The answer to this question can only be given in the affirmative. In fact, church law in an objective sense is the external order of life of a special social organization that embodies a specific and necessary life goal. Let this goal be spiritual, religious, in a word - different from all vital goals for which states and other human unions exist, nevertheless, this goal is achieved in society, in the union of people with a special organization or what is the same with a special right: “ubi societas, ibi ius.” Further, the laws of the external church order are also different from religious and moral rules, just as laws in the legal sense are different from moral rules. Let's explain this with an example. The moral Christian law says, for example: “whoever looks at another man’s wife with lust has already committed adultery with her in his heart” (Matt. Chapter V), and the church legal law threatens punishment for actually committing adultery, etc. Finally, the laws of the church order, as well as the social one, contain the same boundaries for the activities of individual members of church society as are necessary in the legal order in general, and the violation of these boundaries is accompanied in the church exactly the same reaction on the part of the whole as in any other organized union. In a word, the church legal order, just like any other, has the character of coercion in the precise sense that it, this order, rises with its authority over the personal individual will and acts on it with the force of necessity. Of course, the church cannot force the execution of its laws in the same way as the state forces, that is, by physical force, with an armed hand: it has neither troops nor police; nevertheless, it also has a kind of coercive and punitive power, with which it acts against all violators of its order. This cannot be doubted if we take into account that only at the exclusive disposal of the church itself are those rights and benefits for the sake of which individuals enter into the church union and the use of which is conditioned for them by observing church order. Once an individual violates public order in the church, he is thereby deprived of the right to use these benefits. The existence of such compulsory norms in the church does not in any way contradict the Christian teaching on freedom of conscience, for whoever recognizes himself as a member of the church thereby expresses his will and assumes the obligation to obey its laws, since they are based on the positive divine will and are set by conditions, from the observance of which only it is possible for individuals to achieve the goal revealed to them in the church union. Thus, the coercive power of ecclesiastical legal norms does not arise from the simple necessity of ecclesiastical order, but from the very position of individuals in this order. He exists not for himself, not for the church as a whole, but for the reason for which the church itself exists, namely, to provide individuals with the opportunity to achieve their religious goals. From this it is clear that in church law, as opposed to secular law, the moments of freedom and necessity completely coincide. The position of church law in the whole system of law If church law belongs to all the formal logical features that make up the concept of law in general, then it is self-evident that it should be included in the whole system of law and occupy a certain position in it. Which one exactly? In resolving this issue, legal scholars differ significantly among themselves. Those who adhere to the ancient division of law into ius publicum and privatum attribute church law either to the first or to the second, or divide it into two parts and attribute one to private law, the other to public law. We cannot agree with either one, or the other, or the third. Lawyers who classify church law as prau public, as a special branch of state law, obviously follow the example of Roman jurists, who defined the subject of their public law as follows: “ius publicum, in sacrus, in sacerdotibus et in magistratibus consistit.” But what is true of the Roman sacra publica, which, indeed, formed part of the state order, cannot be said in the Christian religion and church. Christianity is not a national or state religion and the church is not a product of any state. Of course, it depends on the state to recognize or not recognize the church in its sphere as a public corporation, to give or not to give its sanction to the norms of church life created by the church itself; but this does not mean that the church cannot exist and its rights cannot operate without recognition by the state. The Church developed into a strong social organism, with a complete system of its internal law, even when the state, namely the Roman Empire, either ignored Christian communities or persecuted them as a collegia illicita. And this is because in matters of faith and life according to faith for a Christian there is no other authority other than the church. Recognizing the independence of church law, along with state law, does not mean, as some people think, allowing statum in statu, or placing the church in international relations with the state: the church, in accordance with its essence and purpose, embraces a person according to a religious principle, and not according to a political one; Consequently, it can neither be a state within a state, nor a union that, realizing goals similar to the goals of the state, would join the latter in international relations. Lawyers who classify church law as private, for example, Falk in his “Legal Encyclopedia,” affirm the position that religion is a matter of conscience and, therefore, a private matter. Of course, from the point of view of Christianity there is no and cannot be coercion to religious beliefs, but it does not follow from this that the church, with its right, stands in the area of ​​private law and personal arbitrariness. The Church is a private society only in relation to persons who do not belong to it, and to states which do not recognize it as a public corporation; and for those who share her faith, it is not a private matter: its structure, goal, means are higher than private arbitrariness, they are given in its very essence. In this sense, the sign by which Roman jurists distinguished public from private law can be applied to church law: ius publicun pactis mutari non potest (public law cannot be changed by agreement of private individuals). Compliance with this order is absolutely mandatory for individuals if they want to remain members of this society. Finally, we need to consider the view according to which church law belongs partly to public law, partly to private law. This view is expressed with particular clarity by Morezoll in his institutions of Roman law. This is what this scientist says: “every person, according to his beliefs, is part of one or another religious corporation; from here arise more or less unique religious relations, which sometimes completely coincide with state relations, precisely where a completely national religion exists; Thus, among the Romans, ius sacrum belonged to ius publicum. Where there is no such identification of the interests of the state with the interests of religion, there the attitude of believers to their religious community - the church - forms a special ecclesiastical right, this is what happens in all modern Christian states. This church law, in so far as we are talking about the relationship of the church to the state, is, however, part of state law. But since it also affects the interests of individuals and modifies them, it also applies to private law. Everything else in church law lies on the border between private and public law (Russian translation, pp. 5–6; § 4).” From the point of view from which the author stands, his reasoning is correct. Church law, if you look at it from the outside, that is, from the point of view of secular law, actually contains elements that relate to both public and private law. But Maretsol himself rightly concludes that the entire content of church law does not fit this scheme, so that there remains much that “lies on the border between private and public law,” that is, everything that relates to purely ecclesiastical affairs and relations and in which lies the real grain of church law. Thus, the question of the position of church law as one whole was left completely aside by Marezol. The relationship of the science of church law to the theological and legal sciences The critical review we have presented of opinions on the position of church law in the whole system of law leads with logical necessity to the result that church law is a special, completely independent branch of law; it is united with all other branches of law only in a general logical concept of law. In this sense and meaning it constitutes a special legal science, which shares its name. In its content, the science of church law has, however, much in common with the theological sciences; So from dogmatic theology she takes the concept of the church, its goals and means; from moral theology borrows the truths of Christian morality, in which the spirit of church law is revealed; from church history takes facts and examples that explain the true meaning of the ancient church canons and ways of applying them at different times and under different circumstances in church practice. But all these and other similar borrowings from theological sciences do not in the least change the basic, legal character of our science. It deals exclusively with church law and subordinates all theological elements in its content to a legal point of view. Let's explain this with a few examples. The doctrine of the sacrament of Baptism, precisely as a sacrament, that is, an extraordinary grace-filled means of spiritual rebirth of a person and his reunification with God, belongs to dogmatic theology, and not to church law, for the internal action of baptism is based on faith and cannot be legally proven. For law, baptism is an external act of competent ecclesiastical authority, through which general ecclesiastical legal capacity is acquired; it is a necessary means of acceptance into ecclesiastical society: for whoever is not baptized cannot be a member of the church. Thus, in the science of church law we can only talk about the conditions for the validity of baptism, required both on the part of the persons performing this act and on the part of the persons receiving it. Likewise, the dogmatic teaching about the church hierarchy, or about the spiritual authority that is communicated to hierarchical persons through the sacrament of ordination or consecration cannot have a place in the science of law, because the very act of ordination, its internal effect on the person receiving the ordination, again cannot be proven externally. Therefore, ordination or consecration, as a sacrament, is not included in the field of law, but is considered here as the only legal way to enter the church hierarchy and obtain government power in the church. So the presence of theological elements in our science does not in the least prevent it from remaining a legal science. The construction of dogmatic and moral teachings included in the content of the science of church law must still be strictly legal; we take these theological elements into our science only to the extent that they serve as foundations or assumptions for law. This is the connection between the science of church law and theology. But its connection with the legal sciences is not only formal, based on the identity of the structures of the teachings included in it, but also material, established by the unity of the content itself. We have already seen that the church, as a social organism, is necessarily included in the sphere of law of those states in which it exists and operates. From here it borrows all its external law, which determines its relations as a public corporation. And internal church law in its historical development experienced more or less strong influence from secular law. Therefore, neither historical nor dogmatic study of church law is possible without familiarity with the law of the state with which it had and still has to do. In particular, this needs to be said about Roman and Greco-Roman, or Byzantine law, under the influence of which the strongest forms of external church organization took shape and the most important church legal institutions developed. For its part, the church had such a powerful influence on the legal views and legal life of those peoples among whom it was established that the scientific development of the positive law of any of the Christian peoples and states would have been completely unsuccessful without familiarity with church law. So, the legal nature of our science and its close connection with other legal sciences cannot be doubted. Historical sketch of the literature of church law Let us now present in a brief outline the history of this science and indicate the most important phenomena in its literature. Initially, knowledge of the church was acquired through practice, with the help of private collections that contained the sources of this law. The first experiments in mental activity on these sources consisted in their systematization, in the presentation of ecclesiastical legal norms of the same content of the opus under well-known general headings. This was followed by short explanatory notes, which in the West were called “glosses”, and in the East “scholia”. A further step in the development of these exegetical experiments on sources was extensive interpretations of various parts and the entire composition of generally accepted collections containing sources of current church law in one or another locality. In the east, such interpretations appeared in the 12th century. They, as we will see from the history of the sources of church law, belong to three authorized Greek canonists of that time: Alexei Aristinus, John Zonare and Theodore Balsamon. From the last two we also have several special treatises on various issues of church law. The purpose of all such work was, after all, purely practical: no one had thought or could think about the scientific system of church law. The task of these works was actually to establish the dogmatic meaning of the sources, to reconcile the apparent or real contradictions between them and to apply them to specific cases of modern life. But further successes of the science of church law in the east were stopped in the middle of the 15th century, when the Byzantine Empire fell under the rule of the Turks and became a state with a non-Christian government. In the West, the cradle of church law was the famous Bologna school of law, which arose at the end of the 11th century, and the first system was the famous decree of the local monk Gratian (died about half of the 12th century), compiled according to the model of Justinian’s Institutes, with the division of all legal material into three sections, according to the scheme: “persones, “res”, “actiones.” In the language of the school, this is a compilation, i.e. Decree Gratian, soon received the loud name “Corpus iuris canonici”, since it contained all the current church law, and this name was obviously given to it in contrast to “Corpus iuris civili”, as the codification of Roman law was called in the Bologna school of Justicianism. Gratian’s Decree is a system of church law that has a very close connection with Roman law, not only in the formality of relations, i.e. systematization, but also in the material. It is known that throughout the Middle Ages, the Western Catholic Church not only lived according to Roman law, i.e. determined its purely civil relations by it, but also constantly strived to implement this right in the life of the barbarian peoples who founded their states on the ruins of the Western Roman Empire, i.e., a universal Christian state, and when this state was in its full development, then, precisely in the 12th century, Roman law in the views of the era received the meaning of universal Christian civil law; At the same time, the scientific development of this law began, which was in force in the new Roman, that is, in the German Empire. But this new Roman law in many respects was no longer the same as that contained in Justinian’s codification: it changed significantly and was transformed under the influence of the church. Thus, the dogmatic construction of many institutions of general civil (new Roman) law required familiarity with canon law. This is the reason why the Decree of Gratian and the later collections of papal decretals, which make up the second part of the “Corpus iuris canonici”, became the subject of the same scientific work in the Bologna legal school as was done on Roman law itself. These works mainly consisted of glosses, that is, explanatory notes on the text of sources, which is why the scientists to whom these comments belong are usually called glossators. Lawyers who studied both laws with equal success began to receive the title... Glosses, or explanatory notes, were usually written in the margins of manuscripts that contained the text of sources of current church law. The gloss, once placed in the margins or between the lines of the canonical code, became forever, as it were, the common property of the school; later glosses were placed in a logical connection with the previous ones, and in this way a continuous commentary was formed on the entire canonical code. Over time, the manuscripts themselves could not contain all the glosses that had historically formed, so the gloss had to be separated from the text of the sources and split into separate treatises on various issues of church law. From these treatises various dogmatic systems of church law were naturally compiled. Following the method of the Bologna Law School, ecclesiastical law was developed at other universities, mainly in Paris and Montpellier. From XV table. Not only complete dogmatic systems of church law begin to appear, but also experiments in the critical development of its sources. In northern Germany this movement was suspended for some time by the famous church reform of Luther. The said reformer, as is known, as a sign of his break with the Roman Church, in a solemn procession with his disciples, students of the theological faculty at the University of Wittenberg, burned the “Corpus iuris canonici” along with the papal bull by which he was excommunicated from the church. Many governments that adopted the Reformation acted in the same spirit: it was they who prohibited the teaching of canon law in local universities. But the centuries-old internal connection of this law with Roman law (the connection indicated by us) was so eternal that it could not be broken by theological disputes and religious passions. Lawyers in Protestant universities, i.e. in the universities of those states that accepted Luther's teachings, they continued to study canon law and even teach it to their students to the extent that it was necessary to understand the institutions of general civil or new Roman law. On the other hand, the Reformation contributed greatly to the success of the scientific development of church law. The question arose: on what is the entire system of papal power, its spiritual and at the same time external dominion over all Christian peoples and states based? And as a result of the scientific work undertaken in this direction, there was the disclosure of various forgeries in the sources of this law, and especially the disclosure of the famous forgery of the False Isidore decretals. As a result, the medieval view of the essence of the church, i.e. Pascal power has changed significantly even in many Catholic states, not to mention Protestant ones. Thus, in France the famous doctrine of the liberties of the Gallican Church appeared, i.e. about its comparative independence from the papal throne. The foundations for this doctrine were obtained precisely through a close historical-critical study of the sources of church law. The essence of the doctrine of liberties of the Gallican (French) Church is that the highest ecclesiastical authority lies in the entire episcopate, and not in one pope, as everyone believed throughout the Middle Ages. The further development of this teaching at the end of the seventeenth and beginning of the eighteenth century. there was the so-called Febronianism, a system named after its pseudonymous founder, Febronius (the real name of the author is Gonteim), which fundamentally placed the Catholic Church in the same dependence on the state as the Lutheran zemstvo or state churches were and are. In the fight against ardent church-political teaching, i.e. Febronianism, and strictly Catholic canonists also had to turn to history. Recognizing the undoubted reality of forgeries in the sources of medieval church law, these strictly Catholic writers rendered more or less important services to the science of church law through a critical development of the history of its genuine, undisputed sources. Thanks to this historical trend, the very nature of the science of church law has changed: it has now freed itself from the old scholastic shackles that tied it to the system of the Gratian Decree and later collections of papal decretals, and has become a primarily historical-legal science, which has aroused keen interest in itself: learned jurists, without distinction of religion, compete in its development. We will indicate only the most important scientific systems of church law belonging to lawyers of the Catholic and Lutheran faiths. Among the Catholic writers we will name: Voltaire, Schulte, Wehring, Scherer. From the Protestantism of Richter, Gintius, Friedberg, Zorn. In addition, to resolve, so to speak, current issues of church life, there are two journals on church law in the West: one Catholic, under the title: Archiv für das katolische Kirchenrecht; another Protestant, under the title: Zeitschrift für Kirchenrecht. The subject of the science of church law in the West is, of course, Western church law, i.e. law of churches: Catholic and Protestant. But a lot has been done there for the science of Eastern, or Orthodox, church law. We owe Western scientists, first of all, the best editions of the sources of this law. Such publications began in the 16th century, from that era when, as a result of Luther’s reform and the disputes it caused between Catholics and Protestants, a keen interest was aroused in the study of the dogmas, rituals and institutions of the Eastern Church. Both disputing parties were looking here, i.e. in the sources of doctrine and law of the Eastern Church, a weapon for his polemics. The initial editions of these sources were partly biased and presented not the original text of the sources, but their Latin translation, as more convenient for polemical purposes. The first edition is genuine, i.e. The Greek text of canonical sources belongs to the French bishop Tilier (in Latin Tilius), who in 1520 published most of the canonical code of the Greek Church, namely the rules, or canons, recognized by the Eastern Church as ecumenical and local councils IV to IX centuries. inclusive. Of the later publications of this kind, the following two are of particular importance: 1) Leunclavia: ius graeco-romanum in 2 volumes, published in Frankfurt on the Main in 1596. It contains the sources of Byzantine church law proper, consisting in the decrees of the Patriarchal Synod of Constantinople, in the canonical answers and treatises of various church-historical persons and in the laws of the Byzantine emperors on church affairs; 2) publication of the canonical code of the Greek Church with interpretations of it by authorized Greek canonists of the 12th century (Aristina, Zonara, Balsamon), a publication belonging to the learned priest of the Anglican Church - Beveridge, or in Latin pronunciation Beveregius. The publication bears the title: “Σννοδικὸν five Pandectae canonum ecclesiae Graecae”, Oxford, 1673, in two volumes in folio. Both of the now-mentioned publications were received with great respect throughout the Orthodox East - both in Greece and here in Russia. In our country, at the end of the 18th century, by order of the patriarchs, and then the Holy Governing Synod, the editions of Leunclavius ​​and Beveridge were translated into the Slavic-Russian language, and these translations were intended for official publication on behalf of the church authorities. In Greece, the same publications served as the basis for two official editions of the canonical code of the Eastern Church. The first of them, under the name Pedalion (The Helmsman's Book), was made in 1880, by order of the Patriarchate of Constantinople; the latter under the title: “Σύνταγμα τῶν θείων καὶ ἱερῶν κανόνων”, published in 6 volumes in 8⁰, in 1852–1859 in Athens, with the blessing of the Holy Synod of the Greek Kingdom, edited by two professors of the University of Athens, Rallis and Potlis (Ῥάλληϛ καὶ Ποτλῆϛ). It is impossible not to mention the publication made recently by Cardinal Pitra of the Roman Church, under the title: “Juris ecclesiastici Graecorum historia et monumenta”, in 2 volumes. The first volume was published in 1864, the second in 1868. The publication was undertaken by order of Pope Pius IX, with the aim of promoting the idea that the Eastern Church has always been under the supreme authority of the popes. This idea is carried out both in the publisher’s research on the published sources of Greek church law and in the notes to the text. There are, of course, a lot of exaggerations and all sorts of falsehoods here. But the very text of the monuments of ancient Greek church law, from the 4th to the 9th centuries, was published by Pitroy on the basis of the oldest and best manuscripts that can be found in European libraries (incidentally in Moscow and St. Petersburg). In this regard, Pitra's edition leaves behind all previous editions containing the same sources of canon law of the Greek Church, starting from the times of the apostles and ending with the 9th century. In addition to the indicated sources of canon law of the Greek Church, we are indebted to the scientific development of the West and the scientific development of their history. Of the works devoted to this subject, the following are especially important for Russian canonists: 1) Bigner’s work “De collectionibus canonum ecclesiae Gaecae” (1824, Berlin), in 2 three excellent monographs of church law, Zachariae von Lingenthal, on Greek nomocanons. In addition to the history of sources, many monographs also appeared in the West on the internal history of the canon law of the Greek Church, i.e. on the history of its institutions. But we will point to these monographs in the course of the departments to which they belong. Here we will only point out Chizhman’s major work “Marriage Law of the Eastern Church” (Das Eherecht der Orientalischen Kirche). Church jurisprudence in Russia In Russia, the idea of ​​studying canon law was first expressed by Metropolitan Plato of Moscow in his Instructions given at the end of the last century to the Moscow Slavic-Greek-Latin Academy. According to this instruction, the teaching of canon law should consist of reading the Helmsman's Book and comparing it with the original Greek text of the sources according to Beveridge's edition. At the same time, as Plato said, prudent criticism of the Helmsman was allowed, since much of it was translated in a dark, confusing, and sometimes downright erroneous manner. In 1798, by decree of the Holy Synod, it was ordered to read and explain the Helmsman’s Book in all religious educational institutions, in accordance with the instructions of Metropolitan Plato. Finally, in the rules on the transformation of theological schools, published in 1808, canon and church law are named among the subjects taught in theological academies. The task of teaching this subject was now understood much more broadly: it was the teacher who was required to provide a brief system of the current law of the Eastern and Greek-Russian churches. But fulfilling this task was beyond the capabilities of that time, firstly, because the teacher of canon law in theological schools, in addition to this subject, was also assigned to give lectures on other theological sciences. In addition, these teachers did not have the legal training necessary to develop such a subject: if there were some experiences in developing our subject, they were strictly theological in nature. The science of church law initially appeared with the same character in our universities, where its teaching was introduced in law faculties by the charter of 1835. According to this charter, the teaching of church law was entrusted to the professor of theology, and listening to lectures on this subject was mandatory only for lawyers of the Orthodox faith. Having, therefore, no organic connection with other sciences of the Faculty of Law, the science of church law appeared in universities as if adopted: it was listened to and taught only because the statute required it. The awareness of the unsatisfactory nature of such a formulation of our subject is clearly expressed in the conclusion of the law faculties on the draft university charter of 1863, now cancelled. Learned lawyers unanimously supported the separation of church law from theology and the establishment of an independent department of this subject, with a teacher who received a legal education, which was adopted by the charter of 1863. There is no doubt that by this statute our science was placed in favorable conditions for its further growth and development. And now already, i.e. During the validity of the old and new university statutes, there was a noticeable significant revival in the development of our subject, thanks to the influx of fresh scientific forces with new methods and techniques of research. But it goes without saying that science cannot grow, like a fairy-tale hero, by leaps and bounds. The first scientific works on our science belong, of course, to scientists of the spiritual and theological school. Most of all, they have done more to develop individual institutions of church law. The same scientists also made the first experiments on the system of this subject, mostly unfinished. Let us name the most important of these experiments: 1. “Notes on Church Law,” compiled even before the charter of 1863, by the professor of this subject at Kiev University, Archpriest Skvortsov 2. “Experiences in the course of church jurisprudence,” by Archimandrite John in 2 volumes, published in 1851 - a very venerable work. It contains an introduction to the system of church law, the history of the canonical code of the Eastern Church during the period of the Ecumenical Councils (from IV to IX centuries) and a historical and dogmatic commentary on this code. Then, according to the author’s plan, a system of general church law was to follow, but only fragments of this system were published in various spiritual journals. 3. “Course of lectures on church law” by my late predecessor at this department, Nikolai Kirillovich Sokolov, is also unfinished. From his course, only the introduction and the beginning of the system are printed. Judging by this beginning, the course of the late Sokolov should have largely satisfied the needs of university teaching. His published lectures are distinguished by the elegance of their language and, what is especially remarkable, by their strictly legal method, although the author was not a lawyer, but a theologian. Finally, we have two complete textbooks of church law: one belongs to the professor of the Kazan Theological Academy and the local university Berdnikov, the other - to the professor of the Yaroslavl Lyceum, Suvorov. The first textbook is predominantly theological in nature and extremely unsatisfactory in its systematics; the latter, on the contrary, is distinguished by a strictly legal formulation of the subject, but in places exposes in the author a certain lack of theological information and historical criticism. The task of the science of church law The task of the science of church law should be to build a system of this law on the basis of its own positive principles and from its own sources. It goes without saying that the immediate subject of our study should be Russian church law. But since the Russian Church is only a part of the one universal Church of Christ (and precisely a part of the Orthodox Eastern Church), and since it has certain principles of its law and its institutions in general church law, we cannot limit ourselves to simply systematizing the church law in force in our country, but must present this law in continuous connection with general church law. In addition, the one universal Church of Christ, as is known, over time, was divided into several separate churches, which differ from each other not only in their structure, but also in their dogmatic teaching itself. Which of these churches is the true Church of Christ is not a legal question, but a theological one. We must keep in mind just this fact; that in the sphere of law (public) there is not one church, about which the Creed speaks (“I believe ... in one, holy, catholic,” i.e., the universal church), but several churches, and the most prominent of them, besides the Orthodox, are Roman Catholic, Protestant and Armenian-Gregorian. These churches are recognized as public religious-Christian corporations on our state territory. Thus, while setting out our main subject - the right of the dominant Russian Orthodox Church, we should not leave aside the right of the three named churches, at least insofar as this latter is contained in their statutes adopted in the Code of Laws of the Russian Empire. Then, when presenting our main subject, i.e. Orthodox church law, we will adhere to the historical-dogmatic one, namely, we will proceed from the basic principles of each church-legal institution, and having found these basic principles, we will follow all the most important phases of the development of this institution, indicating at the same time those local, national-political influences under the influence of which this institution reached its present form. While following this process, we must constantly keep in mind the connection between law or its institutions and their dogmatic foundations, because church-legal institutions differ according to the difference in dogmatic views prevailing in one or another church. Of these churches, one looks upon a certain institution as having a divine origin, the other recognizes this institution as having developed historically; therefore, we cannot lose sight of these dogmatic foundations. When we keep in mind the connection of law with its dogmatic foundations, then it will be revealed to us; what constitutes in this positive right its unchanging basis, its inner essence, and what is only the outer shell, which is replaced over time and does not require one constant and solid form. Such a historical-genetic and, as you can see, together a philosophical method will show what should be recognized as essential in the current positive law of the church and what is accidental or insignificant, and how far one can go in certain church transformations, often necessary, without, however, touching the very essence of the church, without shaking its rule. By processing church law in this way, science naturally contributes to its application to the needs of church life and, by providing church authorities with material for legislation, paves the way for the renewal and further development of law. Church law carries its own system within itself. Since it has its own special sources and presents us with a set of norms that determine both internal and external relations of the church, it naturally falls into two main parts: internal and external church law. These two main parts must be preceded by: the general doctrine of the sources of church law and the history of these sources. Then, the internal law of the church is divided into two sections: the doctrine of the structure of the church as a special social organism and the doctrine of church government. The first section (on the church structure) constitutes, so to speak, the anatomy of the church organism, and the second – its physiology; in the first we will consider the constituent parts of the church organism, and in the second we will consider its vital functions. The external law of the church is similarly divided into two sections, of which in the first we will consider the relationship of the church to the state, in the second - its relationship to other religious unions, both Christian and non-Christian. Part 1. Sources of church law I. Theoretical doctrine of the sources of church law, their types and relative importance From the concept of the church as a divine institution realizing on earth the goals of the Christian religion, a goal unattainable in any other human union, it necessarily follows from this concept that the church can receive the basic laws of its structure and activities only from itself. The primary source of these laws is the divine will of the Founder of the Church, expressed in the books of Holy Scripture and in Holy Tradition, traced back by the Church to the same primary source. But the church itself, as a living organism placed in the ordinary conditions of human life, is authorized by its Founder to develop its right, in accordance with the needs of time and place. In addition, the church, due to its position in the world, is dependent on the state; from it it receives norms that determine its external relations in the sphere of public law. Thus, the law of the church, in its origin, is either divine or human, created partly by the church itself (internal law), or partly by the state (external law). Under the name of divine right we mean those norms of church life that are given to the church along with its existence and which, relating to the very essence of the church, are necessary for it at all times and, therefore, the nature of immutability. The sources of knowledge of this right are, firstly, the books of Holy Scripture, which contain direct revelations of the divine will. But the importance of the rules of religious-social, or, what is the same, church life, contained in the books of Holy Scripture is not the same: in the foreground are, of course, the instructions given to the church by its Founder Himself or on His behalf by the continuers of his work - the apostles; then follow the rules of church life and discipline prescribed by the apostles on their own behalf and directly distinguished by them from the commandments of the Founder of the Church Himself (1st Epistle to the Corinthians, Chapter VII, Art. 12 and 25: “I speak, not the Lord.”) Finally, the church finds binding laws for itself in the books of the Holy Scriptures of the Old Testament, mainly in the Mosaic legislation, about which Christ himself says: “I came not to destroy the law, but to fulfill it” (Matthew 5:17). Indeed, in the teaching of Christ and His apostles, the rules of the Mosaic legislation, taken in their spirit and inner essence and purified from the admixture of national Jewish elements, received the meaning of Christian laws, as a revelation of the positive divine will. Such, for example, are the well-known ten commandments of the Law of God, which form the basis of the criminal code of the church. These are also some of the definitions of Mosaic legislation related to marriage law, for example, the laws of Moses on various relationships of consanguinity and property that constitute an obstacle to marriage. But the very fact of finding certain norms in the books of Holy Scripture does not yet resolve the question of the inherent nature of the norms of divine law, i.e. rights that are unchanged at all times of the existence of the church, and this is because the Holy books, even the New Testament ones, contain instructions that are given in relation to the special circumstances in which the church found itself when it appeared in the world. For example, one of the letters of the Apostle Paul contains the following injunction: “It is fitting for a bishop to be of one wife to her husband” (1 Tim. 3:2), but we know that according to current law, a bishop must be completely celibate. Thus, the above instruction of the Apostle was given in relation to the circumstances of the time when it was difficult to find celibate candidates for the bishopric; Subsequently, the Church, as the interpreter of the norms of divine law, found in the same ius divinum the basis for the rule requiring that the bishop be celibate. What criterion must be adopted for an unmistakable judgment as to which of the rules of church and social life contained in the Holy Scriptures belongs to the ius divinum and which does not? Only the clearly expressed consciousness of the universal church can serve as such a criterion; that a certain rule or institution has its source in the divine will and relates to the very essence of the church. From here the need for another source for knowledge of the norms of divine law, namely Sacred Tradition, reveals itself. Indications of this source are already found in Holy Scripture itself. For example, the Apostle Paul instructs believers to observe in their lives the traditions received from him both verbally and in writing. Thus, both scripture and tradition come from the same ecclesiastical authorities and, therefore, have the same importance. And in relation to traditions, the question of whether they have the character of norms of divine law is decided in the final instance by the authority of the universal church: what it initially observed and observes as an apostolic tradition should undoubtedly be attributed to ius divinum along with similar norms contained in the Holy Scripture. The totality of the norms of divine law contained in the Holy Scripture and tradition do not, however, constitute code of positive ecclesiastical laws, in the proper sense of the word. The norms of divine law serve only as fundamental principles, highest principles and criteria of positive church law, which in no case can be in conflict with its divine law. This positive church law is human: it is created by the church itself with the assistance of the state and is formed, like any other positive law, in two forms: in the form of legislation and in the form of custom. Legislation as a source of church law Due to the positive essence and structure of the church, legislation naturally provides the most abundant source of church law. The bodies of legislative power in the church are given in its very structure, in the doctrine of which we will consider them, and here we will limit ourselves to only indicating the general properties of the church itself, or canonical legislation. Firstly, this legislation in its content and effect is limited to purely church affairs and relations; where the legislative activity of the church goes beyond its direct competence, where its laws affect purely civil or secular relations. there is always assumed formal or tacit consent on the part of the state, which, therefore, has the right to modify and completely abolish all church laws relating to civil or secular relations. Secondly, in its direction, the legislation of the church is strictly conservative in nature: the basic norms of its life must remain unchanged at all times and under all circumstances; Therefore, the Church in its legislation does not take a single step forward without first dealing with its past. Finally, 3, in accordance with the essence of the church, as a union based on faith and held by the power of conviction, church laws are usually drawn up and formulated not so much in the imperative tone of laws - leges, but in the form of rules - kanones; hence the peculiar sanction of the church laws themselves, which consists of threatening violators with the fear of God, heavenly punishment, or disciplinary punishment of the church itself, consisting of excommunication from its society. Along with its canonical or church legislation itself, the source of church law is also state legislation. Of course, as a religious society, the church cannot be entirely the object of the legislative activity of the state, but as an external, visible union, it stands within the worldly legal order: its members are together subjects of the state, this naturally follows; that the legal norms in force in a given state extend their effect to the church, determine, so to speak, its legal capacity in the sphere of worldly public order and together resolve the question of how much church laws themselves are valid in this worldly i.e. civil procedure. In a word, all external law of the church has its source in the positive law of a given state. As for internal church affairs and relations, the Catholic Church, in principle, rejects the possibility of the determining participation of state power here: it only allows the possibility of recognition by the state of already existing laws of the internal church order, created by the church itself. On the contrary, from the point of view of Orthodox and Protestant church law, state power can even be a direct body of church legislation, i.e. can give norms on internal affairs and relations of the church. But in this case, however, it is always assumed that the legislator himself belongs to the church and acts in strict accordance with the fundamental and unchangeable principles of its own law. After all, one can imagine such a relationship in reality; that the head of state will not be a Christian at all, therefore, it cannot be assumed that the head of state has the absolute right to legislate in the internal affairs of the Christian church, i.e. in such matters and relationships that are of a purely religious nature. If we allow such interference, then it is necessary to admit the legality of rape of conscience, i.e. religious beliefs. Custom as a source of church law Legislation does not embrace all the current law of the church: along with this, along with this source of church law, it is necessary to recognize custom with the same meaning. Direct indications of this source of church law are found in written church rules, which often place custom alongside the canon, i.e. with the written law of the church (see, for example, canon 18 of the 1st Ecumenical Council, St. Basil the Great 89, etc.) True, in our sources the word “custom” is often used in the sense of “tradition,” since both are equally inherent in the sign of antiquity, but, in fact, these are two completely different concepts. “Tradition” is what the church produces from legislative authorities, namely from the apostles; on the contrary, “custom” is directly produced by the very life of church society. Nevertheless, the identification of custom with tradition in our sources is not without reason. Only that custom can receive binding force in the church, which is directly or indirectly confirmed by generally recognized church tradition and does not in any respect contradict this latter. The contradiction of church custom with the undoubted apostolic tradition would serve as proof that this custom is not a product of true church consciousness and that therefore it in itself does not yet prove the actual existence of a legal norm corresponding to it. This feature distinguishes ordinary church law from secular or civil law. In civil law, a written law (or custom) represents the most ancient law, from which the written laws are then derived. On the contrary, the church with its divine written and unwritten rules, i.e. traditions, is an entirely positive institution, the life and activity of which is based on the positive precepts of the law of God. Then, ecclesiastical legal custom is required to be “consuetudo rationales”, i.e. so that it does not generally contradict the spirit and essence of both the entire church and, in particular, the nature of the institution to which it concerns. Further, it is required that the church custom be consuetudo legitime praescripta, i.e. so that its existence and action can be proven over a more or less long period of time. If a church custom satisfies all these requirements, then there is no need for it to be praeter legem or contra legem as a custom, i.e. custom supplementing or even repealing the law was formally recognized by the legislative branch of the church. Let's explain this with an example. General church law requires, for example, that during the baptism of an infant there should be one recipient, a person of the same sex as the person being baptized, and puts this recipient in a relationship of spiritual kinship with the recipient and his parents, and this spiritual kinship has a certain legal significance, namely in the field of marriage law. Meanwhile, custom requires that each baptized person, as a spiritually newborn, have two recipients as a father and mother, and places both of these persons in relation to spiritual kinship both to the recipient and his parents, and among themselves. Thus, with the constant observance of this custom, the opposite church law is valid in marriage law only to the extent that church-social consciousness allows the possibility of dispensation (liberation) from the binding force of custom. II. History of sources of church law Section 1. History of the sources of general church law We will divide the history of the sources of general church law into three periods, of which the first extends from the beginning of Christianity to Constantine the Great, or more precisely, to the year 325, i.e. before the first ecumenical council; the second period from 325 to the end of the 9th century (this is the period of ecumenical councils); and, finally, the third - from the end of the 9th to the half of the 15th centuries, or until the fall of the Byzantine Empire. Then, in a special section, we will outline the history of Russian church law. Period I from the beginning of Christianity to the first ecumenical council of 325 Sources of church law in this period The first Christian communities were governed by their primates, or bishops, according to the norms that were given in Holy Scripture and Holy Tradition and which were all adhered to with unwavering fidelity, as a general and necessary canon of church life and discipline. The unity of the foundations of the church order was supported by living relations between individual Christian communities, which even then recognized themselves as one whole, as one universal church. /Ἐκκλησία καθολική/ The external centers of this unity were those churches that were founded personally by the apostles in the main cities of the Roman Empire, which served as stations for the missionary activities of the Apostles. Such centers were: in the east - Antioch, in Egypt - Alexandria, in the west - Rome, the capital of the entire then known world. But the widespread action of the same principles of social Christian life did not exclude the possibility of the emergence of special local legal norms, called paternal traditions and customs. Each church naturally sought to trace back its local traditions and customs to the times of the apostles, hence, with the general desire of the church for unity in everything, lively disputes often occurred between individual churches on issues for which there was no basis for resolution in general church traditions. In such cases, church councils were formed (σύνοδοι, concilia), at which the heads of individual churches of a given district or province were present and controversial issues were resolved with a common voice on the basis of the tradition of the older churches founded personally by the apostles. Conciliar decisions, if they were important for the entire church, were communicated in district messages to other churches, the leaders of which did not personally take part in the conciliar meetings. If such a definition was indeed accepted everywhere, then it received the meaning and name of the canon, i.e. generally binding norm. However, in the present period only the dogmatic definitions of the councils achieved universal recognition. As for purely disciplinary decisions, their effect was usually limited to those limits within which the council was directly competent. Therefore, in those days it was not yet the custom to call the disciplinary definitions of councils canons and give them the edition of precisely formulated rules, in which edition they appear in the next, second period. For the same reason, we do not have a single conciliar disciplinary definition from this period that would be included in the general church canonical code, which was formed in the next period. Frequent questions that arose in individual churches and did not find resolution in local sources of law gave rise to the so-called responsa canonica, or epistolae canonicae. The bishops of a given church usually addressed such questions to the primates of the older churches, whose practice served as a model for the younger churches. Initially, however, these epistolae canonicae or responsa canonica were not obligatory even for those persons to whom they were given, but the universal respect enjoyed by some of the authors of these responsa, and most importantly, the internal authority of these answers themselves, their strict agreement with the apostolic traditions and their correspondence with the nature of the church institutions themselves, were the reason that these epistles in the next period received the same significance as the decrees of church councils. In a word, the fate of our responsa canonica, or epistolae canonicae, was the same as the fate of the well-known responsa prudentia of Roman law: after all, these responsa were given by lawyers as private individuals, but their internal dignity was the reason that in the imperial period these responsa received the meaning of laws - leges, and in the era of Justinian codification a special book was compiled from them, the so-called Digesta. I point out this analogy so that you can understand more clearly why responsa canonica, which at first were optional, later became sources of general church law. From the present period, we have in the general church canonical code one epistle each of three fathers of the Eastern Church, namely Dionysius of Alexandria (†265), Gregorius of Neocessarea (†270) and Peter of Alexandria (†303). But these epistolae canonicae received significance, I repeat, as sources of general church law only in the next period. Collections of sources of church law Of all the norms of church law we have considered, i.e. apostolic traditions, local customs, conciliar definitions and, of course, the norms of apostolic origin, i.e., enjoyed the greatest respect. which were contained both in the scriptures and in the traditions of the apostles. Towards the end of the period under review, when church communities had already spread beyond the boundaries of the Roman Empire and when there was already a danger of oblivion or distortion of the apostolic traditions, the need for a written presentation of these norms in the form of positive and generally binding rules emerged. This is how a mass of different collections of generally ecclesiastical and, in particular, canonical content assimilated by the apostles arose. This circumstance, i.e. the assimilation of later collections to the apostles expressed the general view that the contents of the collections actually go back to apostolic times. But in this circumstance, the general conviction was not at all expressed that these collections were written by the apostles themselves, otherwise the church would have classified them as books of Holy Scripture and they would have been included in the Bible. Of the mentioned mass of such apocryphal collections, the following two are especially important in historical and dogmatic respects: 1. Apostolic Constitutions (Διατάξεις 1 τῶν ἁγίων ἀποστόλων, or constitutiones) and 2. Apostolic Rules (Κανόνες τῶν ἁγίων ἀποστόλων). Both of these collections originated in the eastern, Greek half of the Christian world, namely in Syria, the main city of which was Antioch, once the capital of the Seleucid Empire. This place of origin of the two named collections is directly indicated by the Greco-Syrian names of the months used in both collections. The Decrees of the Apostles in their present form are a collection of 8 books, in which three independent collections, originating at different times and from different authors, are combined into one whole. The most important of the components of this collection is the eighth book, to which the above-mentioned title actually belongs: “Διατάξεις”. This eighth book primarily relates to church law, while the content of the previous seven books concerns all aspects of church life: doctrine, morality, and worship. The eighth book is presented in the form of sayings of each of the 12 apostles on one or another issue of church discipline. (“I, Peter, command, etc.”) The origin of all the constituent parts of the apostolic decrees, i.e. all eight books of this collection must be attributed to the end of the third or the beginning of the IV century, in a word, to the end of the first period, on the following grounds. Firstly, the church here seems to be still persecuted by the pagan state, and we know that in the first three centuries it was subjected to bloody persecution several times (precisely nine) by the Roman state, which saw it as a harmful sect. Secondly, the dogmatic teaching of the church in the first seven books of the Apostolic Constitutions is formulated as required by the polemics of the church against the heresies of the first three centuries, especially against Gnosticism; but in this polemical-dogmatic part there is not yet the slightest hint of the well-known heresy of Arius, against which the First Ecumenical Council was convened in 325. In the 3rd century, church writers of the 4th century speak of the Apostolic Constitutions as if they were already a well-known book, and often in their writings they quote various passages from this collection. All these testimonies belong to the fathers of the Eastern Church, in which these 8 books of the Apostolic Decrees originated and were known. The Western Latin Church never knew this collection. But even in the East, the Apostolic Decrees were subject to strict censorship by the fifth-sixth or Troul Council of 692, which in its second canon rejected the Apostolic Decrees, excluded them from among the sources of general church law and, in general, from the number of church books, as damaged by heretics. This judgment applied only to the dogmatic teachings set forth in the apostolic Constitutions, but did not concern the legal norms or ecclesiastical rules contained in these collections. That is why the compilers of church-legal or canonical collections, even after the Council of Trullo, continued to use the Resolutions, especially the 8th book, which, as I said, contained the most legal or canonical material. Excerpts from this book, through the Greek Nomocanon, entered our Helmsman, under the name of the rules of the supreme apostles Peter and Paul and all the holy apostles (in the printed Helmsman, these passages make up chapters II and III). As a historical monument of church law, the Apostolic Constitutions in their entirety are of enormous importance: they present to us a complete and living picture of church life and discipline in the first three centuries of our era. The second canonical collection of the present period, the Apostolic Rules (Κανόνες), also originated in Syria, but somewhat later than the Decrees. This is evident from the fact that the last (85th) canon already mentions 8 books of the Apostolic Constitutions; therefore, the literal similarity of the rules with the Resolutions in many points should be explained in such a way that the Resolutions served as a source for the rules, and not vice versa. Like the Constitutions, the collection of apostolic rules did not originate at one time or from one hand. Initially it contained the first 50 rules. This is evident from the fact that after the 50th rule, a special epilogue was placed in the senior lists of the collection, i.e. the apostles' appeal to all believers with an order to strictly observe the above rules. Then, to these 50 rules, 35 were added, so that in its present form, the collection of the Apostolic Rules contains 85 rules. But if the collection of the Apostolic Rules appeared quite late, after even the collection of Decrees, approximately at the end of the 4th century, then the same cannot be said about the very norms that are set out in this collection. Most of these norms undoubtedly belong to the first centuries of Christianity and can be called apostolic traditions. But along with such norms, the collection of Apostolic Rules contains several later ones that occurred in the second period of the history of church law. Such, for example, is the 30th law, which prohibits bishops from seeking their dignity with the help of the government; It is clear that the apostles could not give such a rule: it could only be formed in those times when the church was already in alliance with the state and when state power took a broad part in the affairs of church government. This is precisely the 37th canon, which prescribes that the bishop of each province meet twice a year for councils in the city of his metropolis; again, such a rule could only be formed when bishops could truly gather at councils without hindrance, when the secular government favored this. When deciding the question of the time of origin of the Apostolic Rules, one must keep in mind the following circumstance: among the rules of the Council of Antioch, which took place in 341, there are several that are almost literally similar to the Apostolic Rules. Historical criticism suggests the question of how one should represent the relationship of the Apostolic Rules to the decrees of the Council of Antioch; did the council use the rules or did the compiler of the collection of the Apostolic Rules attribute some of the conciliar rules to the apostles? The latter opinion seems more likely precisely because if the council had used the Apostolic Rules, it would not have failed to refer to this source in order to enhance the authority of its own decrees. Thus, the collection of the Apostolic Rules occurred later than the Council of Antioch and was compiled, in all likelihood, by one of the clergy there. The first trace of the existence of this collection, which contained only 50 rules, is found at the end of the 5th century, when it was translated into Latin by the Roman abbot Dionysius the Lesser. In the preface to his translation, Dionysius notes that although some doubt the merits of these rules, since many of the council decrees turn out to be based on these rules, he considered it necessary to translate them, along with the rules of the councils. True, some time after Dionysius’s translation, the Apostolic Rules actually began to receive formal proscription in the West; they were classified by the Roman Council, under Pope Gelasius, as apocryphal or forged, but due to the fact that Dionysius’s translation had already spread in the West and began to be included in other canonical collections, the said council trial took place without any consequences. The first 50 Apostolic Rules are still part of the Corpus iuris canonici of the Catholic Church. The fate of this collection in the east was different. Here this collection was used not only at the place of its origin, i.e. in Syria and Antioch, but also in other eastern churches. Soon (probably at the beginning of the 6th century) the original composition of the collection, i.e. to the previous 50 rules, another 35 rules were added, and in this number the Apostolic Rules were adopted into a systematic collection of church rules, compiled during the time of Justinian by the Antiochian presbyter, and then by the Patriarch of Constantinople, John Scholasticus. In 692, these 85 rules received formal recognition from the fifth-sixth or Trullo Council. This Council, which rejected the Apostolic Decrees, formally included 85 apostolic canons among the general sources of church law, calling them “transferred to us in the name of St. apostles." This means that the council did not look at these rules as truly apostolic, although it placed them in first place among the sources of church law. Of course, there can be no talk of civil or secular sources of church law in the period under review, since in the first three centuries of its existence, the church not only did not enjoy recognition from the state, but also caused bloody persecution against itself. The church was pacified only at the beginning of the 4th century under Constantine the Great, from which a new period of church history in general and church law in particular began. Period II. From the era of recognition of Christianity as the state religion to the publication of Photius' Nomocanon (312–883) I. Sources of church law in this period With the era of recognition of Christianity as the state religion in the Roman Empire, under Constantine the Great, a new and most brilliant period in the development of church law began - a period that in all fairness should be called the period of the formation of a pan-church canonical code. During this period, the church, protected by the state, could freely engage in the development and organization of its internal order and discipline. The main body of this development is now the councils, which in the present period have acquired the character of regular institutions. It was now accepted as a rule that in each ecclesiastical region local bishops met twice, or at least once a year, at the invitation of their metropolitan (bishop of the main city of the province), for a council to discuss common affairs and resolve issues raised by life and practice. (See Apostle. rule 31st, 1st Council of Nicaea 5th, 19th Calchidon, 8th Council of Trulla.) The definition of these regional councils initially and in themselves were binding only for the churches of the region where the council was the highest ecclesiastical authority. But since the foundations of church life were the same everywhere, it is not surprising that the rules of some regional councils spread far beyond the limits of their original action and, through private collections assigned for practical use, little by little achieved general recognition and, thus, became sources not of local, but of general church law. Below we will see which regional councils owned the rules that acquired such significance precisely due to the fact that they were combined in one collection. In addition to regional or local councils, which met periodically in each province, in the present period there were also extraordinary councils, to which, at the invitation of the emperors themselves (now Christian), the primates of all the churches of the then known world gathered. Such councils then received the name ecumenical (σύνοδος οἰκουμενική). They were usually drawn up in response to the emergence of heresies, to condemn them and to formulate a general church teaching opposite to them. All generally recognized ecumenical councils belong to the present period, of which there were, as is known, seven: 1. Nicene 1st - in 325 2. Constantinople 1st – 381 -"- 4. Chalcedonian –451 -"- 5. Constantinople 2nd –553 -"- 6. Constantinople 3rd –680 -"- 7. Nicene 2nd –787 -"- It should be noted, however, that not all of these councils issued orders with dogmatic definitions (δόγματα) and rules of church discipline (κανόνες). Thus, the 5th and 6th Ecumenical Councils limited themselves only to resolving dogmatic issues, but did not issue a single canon. To fill this deficiency, in 691 a new council was convened in Constantinople by Emperor Justinian II, which, as a complement to the 5th and 6th ecumenical councils, is called the fifth and sixth (πενθέκτη) by the Greeks, and after the place of its meetings in the hall of the imperial palace - τροῦλλον - Trullan. At this council there were no representatives of the Western Church (papal legates), which is why the popes did not recognize it as ecumenical, especially since some of its rules are directly directed against the special customs and institutions of the Roman Church, such as: pr. 13 on the celibacy of clergy, and 55 on fasting on Saturday. But the very next - the seventh ecumenical council (787) calls this council ecumenical (pr. 6) and thus asserts its authority on a par with previous similar councils. However, a significant part of the rules of the Trullo Council (the total number of them is 102), thanks to their translation into Latin and adoption as part of private canonical collections, which were predominantly used in the West, became a source of general church law. In this capacity they are also given in the Decree of Gratian, which constitutes the first part of the Catholic Corpus iuris canonici. In the same way, that is, through private canonical collections, the rules of the Seventh Ecumenical Council received general recognition in the West. b) Canonical letters of individual fathers of the Eastern Church and epistolae decretales of the Roman popes Along with the establishments of ecumenical and local councils, the present period presents us with a significant mass of canonical messages and responses of individual church-hierarchical persons. In the East, such messages were made sources of general church law due only to their internal dignity. On the contrary, in the West, the same messages of the popes from the very beginning received the character of legislative acts, as indicated by their very name: epistolae decretales. This is explained by the fact that in the West the Bishop of Rome was already recognized as the head of the entire church, so that his decrees, even individual ones, had the same authority there as the canons of ecumenical councils. But the Eastern Church did not know them at all, just as the Western Church did not know the canonical messages of the fathers of the Greek Church. c) State laws on church affairs Having entered into an alliance with the state in the present period, the church naturally had to receive a new and abundant source of its law in the legislation of Christian emperors. This legislation was faced with a difficult task - to reconcile the church order with the state, civil order, which was permeated with the old, pagan spirit, and to give scope to the transformative influence of the church on the life of a society brought up in the spirit of another religion or without any religion. Fulfilling this task, the emperors in their laws on church affairs 1) gave sanction to the decrees of church councils, i.e. canons, which subsequently acquired the meaning of state laws; 2) supplementing the rules of the church’s own legislation, drawing material for such laws mostly from the customary law of the church; 3) expanded the boundaries of church jurisdiction, bringing many civil cases to the church department, mainly cases of marriage and family union; 4) determined the rights and obligations of the clergy as a special state in the state; 5) finally, they took measures to preserve church unity, renewing heresies and schisms as criminal offenses. All these actions of the legislative branch stemmed from the general view that the church and the state, like body and soul, constitute one organism and that there must be constant interaction between them for the common good. This principle is clearly stated and quite consistently carried out in the church legislation of Justinian, mainly in his short stories, a significant part of which (about 30) relates exclusively to church affairs. Doubt about the binding force of imperial laws for the church could only arise in the event of a conflict between these laws and church canons. However, such cases almost never occur in Justinian’s legislation, because, as Justinian himself put it in one of his short stories, he was not ashamed to coordinate his laws with the conciliar canons. Moreover, judging by the nature and content of many of Justinian’s church laws, it must be assumed that they were issued after a preliminary consultation with those spiritual hierarchs to whose names they were addressed in the form of rescripts. Justinian was also the codifier of all state laws on church affairs, issued both by his predecessors and by himself: these laws are set out in the first 13 titles of his code (i.e., a collection of imperial constitutions) and then supplemented by his novellas. Along with the laws of emperors on church affairs, which served as direct sources of church law in the 2nd period, ancient, pre-Christian Roman law, ius civile, did not lose practical importance for the church. The latter, on the one hand, remained the source on the basis of which civil cases submitted to the department of the church during this period were decided in ecclesiastical courts, for example, cases of wills of clergy or in their favor, legata ad piam caufam, cases of the conditions of a marriage contract, etc. On the other hand, Roman law served as the basis for the decision in civil courts of cases concerning the church; for example, on issues regarding the acquisition of property by churches, the limitation period in relation to church property, the emancipation of slaves in the church, and so on. As for the Roman Church in particular, in the present period it has even become a deliberate guardian of the treasures of classical Roman law among the barbarian peoples who destroyed the Western Roman Empire; namely, the church not only itself, in its civil relations, lived according to Roman law, completely ignoring the legal customs of the barbarians, but also constantly sought to instill this right in the life of the Germanic peoples it had converted to Christianity. II. Collections of sources of church law It is clear that from all the sources of church law that we have considered so far that have occurred in the present period (namely, from the canons of ecumenical and local councils, ..., decrees of Christian emperors on church affairs and, finally, classical Roman law) a very significant mass of church-legal material has been formed. At the same time, a need arose for the compilation of special collections that would facilitate the practical use of such numerous and varied sources. According to their content, these collections are divided into purely canonical, containing exclusively church canons, into purely civil, containing only state laws on church affairs and excerpts from the sources of Roman law, as far as it was suitable for the church, and into mixed collections, which included sources of both church and state origin. Let us consider the most important of these collections separately. a) Collections are purely canonical The canonical collections that occurred in the present period were the work of private and, for the most part, even completely unknown persons. Nevertheless, they were very important in the history of church law. Thanks to them, the decrees of many regional councils, initially binding only in the place of their origin, became sources of general church law. This is explained by the fact that the foundations of church life and discipline were the same everywhere, therefore, church rules published in one area turned out to be quite suitable for another, especially since at the beginning of the present period the number of written rules in each church was still very limited. Thus, the combination in one collection of rules of several councils, even local ones, turned out to be a matter of significant importance for church practice not only where these rules and their collections originated, but also in other church areas. The original canonical collection appeared where, first of all, the institution of church councils twice a year was formed in the Greek east. Here, precisely in the Pontic diocese, in 314 there were two councils: Ancyra and Neocaesarea. Both of them published church disciplinary rules for their area, which were soon combined in one collection and, moreover, as if they had been published not by two, but by one council, that is, with one common numbering (40 in total). The closest in time to these councils was the first ecumenical council. Nicene (325). It goes without saying that its rules, as obligatory for all churches, were adopted into the described canonical collection of the Diocese of Pontus, and, moreover, are placed here above the rules of the two named local councils, with the proviso that, although the latter are older than the Council of Nicea, they are inferior to it as local ones. However, even now the initially accepted count of the rules was retained, i.e. the rules of the Ancyra and Neokesarea Councils were not considered separately from the Nicene Councils, but followed them with a continuing count, so that after the 20 rules of the Nicaea Council, the 1st rule of the Ancyra Council was considered the 21st and so on - until the last rule of the Neokesarea Council, which was the 60th. This collection received its first addition in the rules of the Council of Gangra, which was in the same Pontic diocese, but much later than the Council of Nicaea (precisely between 362–370), which was also noted in the local collection. This four-part collection was not slow to come into use in other church dioceses, where the rules of local councils were added to it without any chronological notes and not in strictly chronological order. But since the account of rules adopted in the original collection was observed even now. This can be seen from the acts of the Fourth Ecumenical Council of Chalcedon (451), at which the previous conciliar rules were read more than once, indicating their number in the then generally accepted canonical code. And if the said council in its first rule ordered that the rules of all previous councils be observed, then he, without a doubt, had in mind the rules contained in the canonical collection that he himself used. It goes without saying that the rules of the Council of Chalcedon were soon included in the same collection, but with a special account, in the form of a special appendix (among 30). At various points in its historical growth, this collection was translated into Latin and, thus, the canons of the Greek councils contained in it little by little became a source of general church law, which was valid not only in the east, but also in the west. Of the Latin translations of the described canonical collection, the following two were accepted with special respect in the West: 1) the translation of the Roman abbot Dionysius the Lesser (Exiguus), who lived at the end of the 5th and the first half of the 6th century and 2) the so-called. Spanish or Isidorov translation, probably made even before Dionisiev. The Greek original, translated by Dionysius the Less, contained the rules of not four, but eight eastern councils (Nicaea, Ancyra, Neocessarine, Gangra, Antioch, Laodicea, 1st Constantinople and Chalcedon). All these rules, with the exception of the Chalcedonian one, were set out with continuing numbering and amounted to a total of 165 rules. In a word, Dionysius had the same collection as we saw at the Council of Chalcedon, with the addition of only 27 rules of this council, set out with a special account. Dionysius himself increased the composition of this collection with 50 Apostolic rules, which he marked (of course, in the Latin translation) ahead of the conciliar rules, with special numbering and a reservation in the preface to his work that many do not recognize these rules as truly apostolic. However, despite this reservation and even the later decree of Pope Gelasius, who classified the Apostolic Canons as apocrypha, they became a source of general church law in the West, precisely due to the fact that Dionysius’ collection came into general use there. Dionysius supplemented his translation of the Greek collection of church rules with the Latin original rules of two Western councils: Sardinian 2 (344) and Carthage (419). Thus, Dionysius was not only the translator of the finished Greek codex, but also its new editor, who included sources of both Greek and Latin origin in this codex. A short time after completing this work, Dionysius, at the request of a Roman presbyter, compiled another special collection of papal decretals, which, as noted above, were already recognized in the West as a source of general church law. In this second collection of his, Dionysius placed the decretals of the Roman popes, starting from Siricius (375–398) to Anastasius (at the end of the 5th century, when Dionysius himself lived). Finally, on the instructions of Pope Hormizd, Dionysius had to once again set about editing the canonical code. The said pope suggested that Dionysius compile a canonical collection that would contain only the generally accepted rules of councils, and these were precisely the rules of Greek councils. Consequently, Dionysius now had to compile a bilingual collection: on one side there should be a Greek text, and on the other a literal Latin translation of it. Dionysius fulfilled this assignment, but, unfortunately, this third work of his has not reached us (only the preface has survived) for a very clear reason: it was a work, one might say, purely academic, but completely unsuitable for local church practice. As for the two previous collections of Dionysius, they were soon combined into one collection, which acquired the significance of an official code of sources of church law not only in Rome, but also in the West, especially after this collection was sent by Pope Andrian I as a gift to the Frankish king Charlemagne, who later became the Western emperor. In the Frankish church, this collection was received with such respect that local councils and state diets quoted it as the Codex canonum 2) The Spanish or Isidorian translation of the Greek church canons was made from the same original as was in the hands of Dionysius the Lesser; it did not contain only 50 apostolic canons. This translation is older and worse than Dionysius’s, since it does not always correctly convey the meaning of the Greek canons. It served as the original nucleus of a special code of the Spanish Church, the composition of which was erroneously attributed to St. Isidore of Seville (†636) This code, in addition to the rules of the Greek councils and two Latin ones adopted by Dionysius (Sardica and Carthage), also included the rules of local Spanish and neighboring Frankish councils. This was followed by the Dionysian collection of papal decretals with various later additions. The opinion that the Spanish canonical code belongs to St. Isidore of Seville is affirmed only on the fact that in one of the works of this father of the Spanish Church (in the so-called “Etymologies”) a preface to this collection is given, but from here one can rather draw the conclusion that the canonical code of the Spanish Church is older than St. Isidore and served as one of the sources for his Etymologies. The Spanish Canonical Code deserves our special attention because around the middle of the 9th century it served as the basis for the famous collection of the False Isidore Decretals. The appearance of this last collection is explained by the predominant importance that the papal epistolae decretales received in the West, compared with other sources of church law. In the 9th century, epistolae decretales in the West no longer differed from the decrees of not only regional and local councils, but also ecumenical councils. The pope's voice was decisive not only in matters of discipline or law, but also of doctrine itself. In the collection of False Isidore there are about a hundred forged decretals, attributed, for the most part, to the memory of the first two centuries of our era. In addition, there are several other forged articles, for example, a deed of gift from Constantine the Great, allegedly given to Pope Sylvester when this emperor moved the capital from Rome to Constantinople. The letter says that the emperor leaves Rome and Italy to the pope in order to give this old capital and its territory to the Roman high priest, near whom it is indecent for a secular sovereign to be. In addition to these forgeries, the text of genuine sources in many places is tended to be distorted by False Isidore in order to bring the genuine sources into agreement with the forged ones. The forgery is so gross in many respects that one can be surprised that it was not noticed by some of the educated hierarchs of the time. In fact, False Isidore, who composed forged canonical epistles of the popes of the first two centuries of our era, often put these popes in correspondence with persons who lived a century or more after. Nevertheless, the vast majority of the ecclesiastical hierarchs, not including the popes themselves, immediately accepted this entire fabrication as genuine sources of church law, that is, as the works of those authorities whose name was bore on the fictitious decretals. The later compilers of canonical collections, which came into general use in the West, drew their material from False Isidore's decretals indiscriminately and thus elevated the fictions of False Isidore into immutable truths, on which all medieval law of the Catholic Church is directly or indirectly based. Only in the 15th century, when the spirit of criticism manifested itself in the West, doubts arose about the actual ownership, if not of all, then of some, of the decretals by the popes to whom the pseudo-Isidore assimilated them, and this doubt, after the inexorable scientific criticism of the Protestant church preacher Blondel, became a universal affirmation. Now even the most ardent Ultramontan Catholic will not dare to raise his voice for False Isidore. But when the forgery became obvious, Catholic theologians and canonists, in order to save the honor of their church, began to prove that False Isidore did not himself create medieval church-legal and political views, but built his system for the most part from ready-made material and expressed, in any case, only what was already rooted in general statements. Here, I must admit, there is some truth. The forgery does not all belong to False Isidore; his own fabrications would have been impossible if modern society had not been ready to accept them on faith. But we must not forget the general tendency of the author, which prompted him to carefully collect material, hitherto scattered, and to bring all this material into one grandiose whole, to fit everything into one common goal, to one idea, for the sake of which the author does not think about adding in one place, changing the meaning in another, and finally giving full scope to his imagination. Thus, the grandiose system he created must have powerfully impressed the mind of medieval man. This indeed was the case, especially since the time when Western councils and the popes themselves began to use forged decretals as undoubtedly genuine. The first examples of references to false decretals contained in the False Isidore Collection are found in the acts of the Council of Soissons in 853. Then, Pope Nicholas referred to the same forged decretals in the 2nd half of the 9th century in his agreements with Patriarch Photius of Constantinople. The homeland of False Isidore was undoubtedly the Frankish Empire. This is proven, firstly, by examples of the initial use of false decretals (we have already seen that the first example of such use is in the acts of the Frankish Council of Soissons); then their Latin language, which is replete with Gallicisms; finally, the very sources of many false decretals either directly originated in the Frankish church, or were mainly used there. The fact that False Isidore did not take for his fabrication the canonical code generally used in France, which was the collection of Dionysius the Lesser, sent by Pope Adrian as a gift to King Charles, but, on the contrary, chose a lesser-known Spanish collection, this circumstance is easily explained by the author’s desire to hide his forgeries: they would be noticeable in a local and well-known collection than in a foreign one, which, however, was attributed to St. Isidore of Seville, revered in France itself. But who this mysterious fabricator himself was, this still remains and, it seems, will forever remain an unresolved question. The purpose of all the forgeries of False Isidore is determined on the basis of the data contained in his compilation itself, and these data are as follows: 1st, the author in many places decisively denies the right of secular authorities to judge the bishopric and clergy in general, granting this right exclusively to the pope, as the head of the church, 2ndly, he weakens the power over bishops not only of secular sovereigns, but also of the closest bodies of the highest spiritual hierarchy (metropolitans, primates, etc.) and subordinates them directly the department of the pope himself. From this they conclude that the immediate goal of the forgeries was the emancipation of bishops from secular and metropolitan power through the direct subordination of their popes. Thus, the elevation of papal power was probably not the direct goal of the forger, but history, although contrary to his personal intention, eventually turned his work into a powerful means to achieve precisely this goal. The main idea of ​​the collection about the superiority of spiritual power over worldly power is the cornerstone on which the power of the pope was established over the entire medieval Western Christian world. All further development of church law in the West was determined in its direction by precisely the principles that False Isidore laid at the basis of his collection. 3) Now let's move on to the history of the most important canonical code of the Eastern or Greek church for us. The original composition and gradual growth of this codex until the 5th century, when it appeared in Latin translations, are already known to us. It was a chronological collection of generally accepted conciliar rules in the east and west, confirmed already in the first rule of the fourth ecumenical council, or Chalcedon, which, as we have seen, used this collection itself. In the first half of the 16th century, this Greek canonical code contained: 85 apostolic canons, the rules of the first four ecumenical councils (Nicaea, Constantinople, Ephesus and Chalcedon) and six local councils (Ancyra, Neocaesarea, Sardica in the original Greek, Antioch, Gangra and Laodicea). This is the composition of the Greek canonical code in its systematic treatment, made by John Scholasticus, under the title: “Συναγογὴ τῶν θείων καὶ ἱερῶν κανόνων εἰς πεντήκοντα τίτλους διῃρημένων”, i.e. A set of Divine and sacred canons, divided into 50 titles: John was first a lawyer in his home city of Antioch, then he was ordained a priest and in this rank he compiled his collection. As an excellent lawyer and canonist, he was sent by his patriarch to Constantinople as an apocryphiary, that is, an intercessor on the affairs of his native church. In 535 he was elevated by Emperor Justinian to the patriarchal see of Constantinople, which he occupied until his death (†578). In material terms, Scholasticus's systematic collection differs from previous chronological collections of topics. that here for the first time two canonical messages of Basil the Great, divided into 58 rules, were added to the cathedral rules. This addition (together with the last 35 apostolic canons) remained unknown in the West and thus gave the Greek canonical code a local character for the first time. Scholastic's collection came into widespread use throughout the east. It was translated into the languages ​​of almost all the peoples who adopted Christianity from the Greeks, among other things, into the Slavic language (during the era of the conversion of the Bulgarians to Christianity, i.e. in the second half of the 9th century). In this Bulgarian translation, the Collection of Scholastics was transferred to the 11th century and to us in Russia. The second and more important edition of the canonical code of the Eastern or Greek Church is known under the name Σύνταγμα κανονικόν. Its author is unknown. This collection probably appeared in Constantinople, a little time after John Scholasticus. Formally, this new collection is divided into two parts: systematic and chronological. In the first part, only the content of the canons was indicated under 14 titles, each of which is subdivided in turn into a larger or smaller number of chapters. Here the canons were not given in the text, but were only quoted in numbers. The second part contained the actual text of the rules in the same chronological order. In comparison with the work of Scholasticus, this new collection has important advantages both in material and formal terms. The advantage of this collection lies in the fact that it already contains significant increments in the sources of canon law of the Greek Church. Thus, in addition to the 85 canons of the apostles, in addition to the canons of 10 councils (4 ecumenical and 6 local) and 2 canonical epistles of Basil the Great, adopted from Scholasticus, the unknown author of the new collection introduced here, firstly, the entire canonical code of the African Church, published by the Council of Carthage in 419, but only now translated from Latin into Greek, and in 2, definitions of the Council of Constantinople, which took place in 397 under Patriarch Nektarios. But the most significant addition to the previous code of canons was made in the department of the canonical epistles of St. fathers; namely, the author of the new collection added, firstly, to the two epistles of Basil the Great, located in the collection of Scholastic, another epistle of the same father, divided into 16 rules, placing it ahead of the previous two epistles; 2nd, the canonical epistles and responses of the following fathers of the Greek Church (III-V centuries): Dionysius and Peter of Alexandria, Gregory of Neocasare, Gregory of Nyssa, Timothy, Theophilus and Cyril of Alexandria and, finally, Gennadius of Constantinople. When compiling his “Syntagma”, the unknown author undoubtedly used the Latin collections of Dionysius the Less, and directly borrowed one from Dionysius, and imitated him in the other. The author of the Syntagma directly borrowed from Dionysius the mentioned code of the African Church, and imitated it in the sense that, following the example of Dionysius’s collection of papal decretals, added to the canons of the conciliar, this Greek canonist also added to the canons of the councils the canonical epistles of the named fathers of the Greek Church. In addition, in contrast to the Scholastic, but in full agreement with Dionysius, the author of the Syntagma expresses doubts about the apostolic rules about their authenticity. In formal terms, Σύνταγμα κανονικόν has the advantage over Scholastic’s collection that the benefits of both a systematic and chronological presentation of the canons are very successfully combined here. Whereas Scholastic, at the request of his system, had to destroy the original historical form of the canons, i.e. to place canons of the same origin under different titles of his collection, the author of the new collection managed to satisfy the requirements of both history and system, forming from the first part of his work a kind of analytical or subject index to its second part, which contained the very text of the rules in the original chronological order. According to the Scholastic system, it was easy to find a rule relating to a known subject, but it was very difficult to find rules according to their affiliation with one or another church authority; whereas according to the new collection, both were easily given. About the time of origin of this collection, only one thing can be said with complete certainty: the author undoubtedly lived after John Scholastic, who died in 578, because when comparing his collection with Scholastic, we find in the first a mass of new sources of canon law, which were not yet known to Scholastic. On the other hand, there is no doubt that this collection was compiled before the Council of Trullo, that is, before 692. This is evident from the fact that the unknown author of the Syntagma, in the preface to his work, speaks of some of the sources he accepted with various doubts regarding their canonical importance. Thus, about the apostolic rules, he says that many do not recognize them as apostolic; he looks at the rules of the Council of Carthage (419), which he first included in the code of the Eastern Church, as a special source of local law of the African Church, although he finds that they can be useful for general church practice; finally, accepting a significant mass of canonical epistles of individual saints. Fathers, the author of the Syntagma, says directly that these epistles, as originating from individual authorities, cannot be considered in the same way as the canons of entire councils. All these doubts and reservations would, of course, be completely inappropriate on the part of an author who lived after the Council of Trulla, which in its second canon finally established the canonical importance of all those sources of church law about which the author of the Syntagma expresses such opinions and doubts in the preface to his work. That the said council, when issuing its 2nd canon, which describes the composition of the general church canonical code, had before its eyes precisely the “Syntagma” of an unknown author, this is evident from the fact that the council calculates the rules of previous councils and the canonical messages of the fathers of the Eastern Church in the very order in which they were set out in the “Syntagma” of an unknown author and does not indicate the number of rules of each of the councils named by it, nor the contents or table of contents canonical epistles of St. fathers. Both, obviously, the council assumed were known from the church book in which all these rules were contained. For its part, the Trullo Council supplemented the composition of this body with a conciliar resolution of St. Cyprian of Carthage and two poetic lists of books of sacred scripture, one of which belongs to Gregory the Theologian, the other to Anmphilochius of Iconium. b) Collections are purely civil The ever-increasing importance of civil or state laws as sources of church law often prompted the same persons who were involved in compiling canonical collections to compile, in addition to them, collections of civil laws issued on church affairs. Thus, John Scholasticus, having already become Patriarch of Constantinople, compiled after the death of Justinian (†565), in addition to his canonical collection of 50 titles, extracts from 12 short stories of Justinian, divided into 87 chapters or articles. This new collection of Scholasticus came into the same use in the Eastern Church as his former canonical collection; together with this latter it was translated into the Slavic language. Currently, these 87 chapters, extracted by John Scholasticus from the stories of Justinian, constitute the 42nd chapter of our printed Helmsman. Much richer in content is another collection of this kind, known under the title: “Collectio constitutionum ecclesiasticarum”, or in short: “Collectio triparttia 3”. As can be seen from the last title, this collection consists of 3 parts. The first contains the first thirteen titles of the Justinian Code, which contain laws of exclusively ecclesiastical content. These thirteen titles are not written here in Latin, as in the original code, but in the later Greek revision of Byzantine jurists. The second part gives (in 6 titles) extracts from the Digest and Institutes relating to church law, also in private Byzantine revision and in Greek. The third part offers extracts from the Novels of Justinian. The compilation of this three-part collection is attributed by Cechario von Lingenthal to the same unknown author who owns the collection “Σύνταγμα κανονικόν” described above. The basis for this guess is that the author of “Σύνταγμα κανονικόν” in the preface to his work says about himself that in addition to this purely canonical collection, he compiled and placed in a special part of it another collection containing extracts from imperial laws and from the writings of wise Roman jurists (in Greek ἐν ταῖς τῶν σοφῶν ἑρμηνείαις), and of all the Greek collections of state laws on church affairs known to us, only one Collectio treparttia contains extracts from the writings of Roman jurists, i.e. from the Digest. c) Collections of mixed content or nomocanons Initially, collections of church canons and collections of state laws of church content were compiled separately from each other, as two independent parts of the church code: canons on their own, in a special collection, state laws on church affairs again on their own, also in a special collection, although both of them were usually combined into one book, where the canons were placed in front, and laws followed them. Such a separate presentation of canons and laws in the collections we described expressed the idea that only canons constitute, in the proper sense, the source of church law, while state laws serve only as a supplement and confirmation of the canons: canons are the main source, and laws are additional. But as the influence of state power on the church and church life increased, the importance of secular legislation for the church also increased. As a result, it turned out to be more expedient for practice not to compile special collections of civil laws related to church affairs, and not to add these collections to the canonical collections in the form of an addition, but to include these state laws in the very titles of the system in which, since the time of John Scholasticus, church canons have been set forth. From this combination of canons and laws came mixed collections, or so-called nomocanons. The oldest nomocanon was formed from the combination of the canonical and civil collections of John Scholasticus, already known to us. The unknown author of this compilation completely retained the titles of Scholastic's canonical collection, placing under them the contents of the later civil collection, and what he was unable to insert from the civil collection into the system of the canonical collection, he added at the end of his simple compilation under the title: “Other chapters from the same short stories of Justinian” (ἕτερα κεφάλαια ἐκκλησιαστικὰ τῆς αὐτῆς νεαρᾶς διατάξεως) Just as from the combination of the canonical and civil collections of John Scholasticus a nomocanon was compiled in 50 titles, so from the first systematic part of the collection: “Σύνταγμα κανονικόν”, which contained under 14 titles only quotations of the canons, without their text itself, and from the Collectio tripartita, the famous nomocanon was compiled in 14 titles. This nomocanon included the entire mentioned civil Collectio, and, moreover, with a significant number of other extracts from Justinian’s legal books. When, therefore, the first part of the canonical Syntagma turned into a nomocanon, the name “Syntagma” remained only with its second part, which contained the very text of the rules, set out in chronological order. The time of publication of the nomocanon in 14 titles, according to a guess, Zackariae von Zingenthal falls on the reign of Heraclius (between 610–641). This guess is based on the fact that the author added four short stories to the original text of the Collectio tripartita at the end of the named emperor, of which one, published in 612, was quoted in the 30th chapter of the 1st title Nomocanon and, moreover, added the title δεσπότης to the name of Emperor Heraclius, and this title was used only in the name of the ruling emperor. Only one thing can probably be said about the author’s personality - that he was a lawyer and, moreover, the author of one legal monograph: “On Contradictions in Laws” (in Greek: Περὶ ἐναντιοφανειῶν ἐν τοῖς νόμοις), which he cites in his monograph Chapter 10 of the 4th title of Nomocanon. According to the title of this work, the author himself was known among later Byzantine jurists under the name of Enantiophanes, as he is called in the scholia to the Basilicas, which we will talk about in the 3rd period. The example of John Scholasticus, who became a patriarch from a lawyer, gives rise to the assumption that the author of this nomocanon was also a spiritual person. The German scientist Giner, whom we talked about in the introduction to our course, speculates that this could be a contemporary of Heraclius, Patriarch Sergius of Constantinople, who occupied the department between 609–638. New edition of the Nomocanon in 14 titles and the canonical Syntagma in 883 The Nomocanons described by us in 14 titles and Σύνταγμα κανονικόν were published again in 883: the first Nomocanon almost without any changes and additions, the last “Syntagma” with the addition of the rules of the last two ecumenical councils, namely, the fifth-sixth (Trullo) and the second Nicene (787) and two local councils that took place in Constantinople in 861 and 879. in the case of the famous Patriarch Photius. The essence of this matter was the struggle between Rome and Constantinople, which almost ended in the formal division of the churches: east and west. The struggle arose over the elevation of Photius to the Patriarchal throne of Constantinople instead of the deposed Patriarch Ignatius; both happened at the will of Emperor Michael III. The then pope, one of the luminaries of papal power, the famous Nicholas I, strongly protested against such interference of secular power in the affairs of the church and did not want to recognize Photius as patriarch. On this occasion, three councils were held in Constantinople, at which not only eastern hierarchs, but also papal legates were present. At the first council (861), Photius was confirmed in his rank, and Ignatius was declared deposed. But the pope protested against these council decisions, as a result of which in 869 a new council was drawn up, also in Constantinople, at which Photius was deposed and Ignatius was again restored. But after the death of the latter, Photius was elevated to the patriarchal throne for the second time; To confirm his patriarchal dignity, a third council was drawn up in 879. Each of these three councils issued canons drawn up in the interests of one or another of the disputing parties. The Roman Church recognizes the council of 869, in which it prevailed, as the eighth ecumenical council and its canons, edited in the spirit of the false Isidore decretals, build, of course, in the source of general church law. On the contrary, the Eastern Church rejected these canons as completely contrary to the spirit and foundations of its law; instead of them, she recognizes the canons of only two (the first and third) of the indicated councils, favorable to Photius (the first of them is usually called the double council, the second – the council in the church of St. Sophia.) These rules were first included in the new edition of the Greek canonical code, published in 883. But who owns this edition? The author of the preface to it does not call himself by name, but only indicates the time of publication of the Nomocanon, i.e. 883 And since Photius was the patriarch this year, the general tradition of the Eastern Church attributes to him the new edition of the Nomocanon. But in recent times, the famous lawyer and Byzantine scholar Tzacharie von Lingenthal expressed several strong objections to the attribution of the nomocanon of 883 to Patriarch Photius; These objections were shared by our Russian canonist Professor Suvorov in his course on church law. The essence of Cecharie's objections is as follows: firstly, the merits of the new edition of the nomocanon are so insignificant that it can hardly be attributed to such a learned and highly educated person as Photius. In fact, the new publisher of the Nomocanon, strictly speaking, left the work of his predecessor in its original form: he did not touch the civil part of the nomocanon at all (although in the preface to his edition he talks about some of his additions to the civil law of the nomocanon), and in the canonical one, in all likelihood, he made only one addition: he added the rules of the mentioned two Councils of Constantinople, favorable to Photius. The second objection: if the publication of the Nomocanon in 883 had really been made on behalf of the ecumenical patriarch, then it would be completely inexplicable how, in times very close to this era, copies of the Nomocanon continued to appear in its previous form. To this day, such lists of the nomocanon have been preserved that were written after Photius, but in which there is not even a preface prescribed to Photius. Third objection: it is much easier to understand why in the 12th century, i.e. more than 200 years after Photius, the Nomocanon of 883 was attributed to the famous Patriarch Photius (who, according to Zacharia and Suvorov, did not occupy the see in 883, but was removed from it, it is much easier to understand this than why in the times immediately following the publication of the Nomocanon such a famous name was ignored, i.e. why the name Photius is not mentioned in the inscription Nomocanon, nor in the new preface to it, which is attributed to Photius. In our opinion, none of these objections can be agreed with. The first objection is eliminated, or at least significantly weakened by the probable assumption that the immediate and even exclusive purpose of the new edition of the Nomocanon was to include the rules of the two Councils of Constantinople, favorable to Photius, all the interest of the new edition of the canonical code of the Eastern Church. To the second objection, we note that just over three years after the publication of the Nomocanon (precisely in 886), Photius was deprived of the throne for the second time, which, of course, could not be conducive to the rapid and widespread acceptance of the canonical code he edited. At the same time, we must not forget that at that time all books were distributed by correspondence, and not in print, as a result of which certain changes in their composition or edition did not suddenly become common property. In the provinces they continued to use the edition of the Nomocanon that had been established for a long time (by the way, note that in the 12th century Balsamon complained that many bishops continued to use outdated editions of the Nomocanon, which should have been burned). Finally, the last objection also contains a direct error: in 883 Photius not only occupied the patriarchal see, but was also at the zenith of his power. It is also not entirely correct to say that the name of Photius, as the publisher of the Nomocanon, was completely ignored in the times immediately following 883. In some manuscripts of the Nomocanon, written even before the time when the belief that the Nomocanon of 883 belonged to the famous patriarch became universal, i.e. until the 12th century, the name of Patriarch Photius is displayed in the margins opposite the second preface to the Nomocanon in vermilion (red ink). There are many such manuscripts; one of them is in the Imperial Public Library in St. Petersburg. Consequently, the memory that Photius was the publisher of the Nomocanon of 883 was preserved in posterity. Period III. From the publication of Photius' Nomocanon to the fall of the Byzantine Empire (883–1453) Source of church law in this period a) Resolutions of the Patriarchal Synod and canonical answers and treatises of individual hierarchical persons The publication of Photius' Nomocanon completed the formation of the general canonical code of the Eastern Church. But with this, of course, the further development of church law itself in the East did not stop, but only a new (third) period began in the history of its sources. The main body of church legal formation in the Christian East is now a permanent council or, more precisely, a synod (in Greek σύνοδος ἐνδυμοῦσα) at ​​the see of the Patriarchate of Constantinople, which, if not de iure, then de facto has now become the head of the entire Eastern Church. This synod, which took the place of the previous timely councils, was compiled under the intercession of the patriarch from metropolitans and bishops who came to Constantinople on the affairs of their churches and sometimes lived here at home. The activities of the Patriarchal Synod, as a legislative body, were highly conservative in nature. He did not set out to create a new rule with the same authority that belonged to the previous councils, ecumenical and local. Among the Eastern hierarchy, the view has now been established that the number of ecumenical councils has been fulfilled in the sacred number of seven that existed before that time, and that the further task of the church, as regards church discipline, consists only in the faithful and unchangeable preservation of what was transmitted by these councils. However, life now, as always, was stronger than theory and gave rise to new church-legal norms, created either by custom, then by practice, or by the widespread interpretation of church canons contained in the Syntagma of Patriarch Photius. Thus, from the present period we have several new and very important sources of canon law. The sources of marriage law, which have now finally become ecclesiastical in the east, deserve special attention. If the decrees of the patriarchal synod (ψῆφοι συνοδικαί), (sententiae synodales) introduced something new, then they were sent to the provincial church authorities for guidance in cases that presented themselves, and if, moreover, they received sanction from the emperor, then they became state laws. Some of them received almost the same importance as the canons of previous ecumenical and local councils. Such, for example, is the conciliar act issued in 920 by Patriarch Nicholas the Mystic under the name “Tomes of Union” (Τόμος ἑνώσεως, tomus unionis) and approved by the emperors Constantine and Roman. This “Tom” for the first time declared the fourth marriage null and void. In addition to the considered resolutions of the Patriarchal Synod of Constantinople, we have from the present period an immense mass of canonical answers and treatises belonging to individual hierarchs and other persons who were famous among their contemporaries for their knowledge of canon law. But the significance of these monuments is purely historical: they serve as evidence of church practice and monuments of the canonical jurisprudence of their time. By themselves, they have never been sources of law in the proper sense of the word. Although some of them were attributed to the composition of the general church canonical code. b) Legislation of emperors on church affairs The era of the new (Photius) edition of the Nomocanon was at the same time the era of a new codification of the sources of civil law in the Byzantine Empire. This codification was also very important for church law, since in many respects it changed those civil laws that were contained in the church nomocanon. Work on the publication of a new code of laws was undertaken at the end of the 9th century. Emperor Basil the Macedonian and completed by his son Leo the Wise. They were caused by the modern chaotic state of the sources of civil law in the Byzantine Empire. During the turbulent period of iconoclasm, which lasted from the first quarter of the 8th century to the half of the 9th century, all the foundations of this empire were shaken. In the legal views of the Byzantine Greeks, who called themselves “Romans,” that is, Romans, but in fact mixed with various barbarian peoples, a significant revolution took place, the expression of which is the famous Eclogue of the iconoclast emperors Leo the Isaurian and Constantine Copronymus, published around 740. These are a kind of Greco-barbarian institutions that were abolished in many respects. Justinian legislation, mainly in the field of land ownership, marriage, family and inheritance law. But along with the Eclogue, various private compilations from Justinian’s legal books continued to circulate in the hands of legal practitioners, somehow adapted to the changing legal customs and views. The original books of Justinian were now completely forgotten: neither legislators nor practitioners looked into them. All these circumstances prompted Emperor Basil the Macedonian to undertake a new codification of law in order to eliminate from Justinian’s laws everything that was outdated and unsuitable for practice, and to publish everything else that remained in effect again, adding here the scattered mass of later legislative material. In carrying out this complex and difficult task, Basil the Macedonian did the following. Firstly, around 870, he published the so-called “Prochiron”, i.e. a manual book of laws, which, as stated in its preface, was supposed to displace from use the legislation of the “wicked iconoclasts,” i.e., the Eclogue, but which in fact repeats verbatim many of the decrees of the Eclogue, since the latter met the needs of life. Secondly, he collected into one collection excerpts of Justinian’s legislation that had lost their practical significance. In the 3rd, he gave a new edition to those Justinian laws that remained in force, and published them in 50 books under the title, “Ἀνακάθαρσις τῶν νόμων” (i.e., revision, revision of laws). The first of the listed legislative works, i.e. “Prochiron”, even under the same emperor (about 883), was published in a new form and under the new name Epanologi, in the compilation of which it is necessary to assume the participation of a clergyman, since it contains many decrees concerning the spiritual hierarchy, and, by the way, a whole title (3rd) about the patriarch, containing completely new decrees: in later legal compilations, this title was not without reason attributed to Patriarch Photius. However, the Epanology did not supplant their consumption of the former Prochiron, which until the fall of the Byzantine Empire remained the main manual book of laws and served as the basis for many private compilations of this kind. In relation to church law, Prochiron is important as the primary source from which later canonists and church practice itself drew definitions of civil law. Not later than the 6th century, Prochiron was translated into the Slavic language and for many centuries was included in the Slavic-Russian helmsmen under the name of the “City Law”, which, obviously, is a translation of the Greek name Νόμος πολιτικός (In the printed helmsman it consists of 48 chapters). The second of the codification works of Basil the Macedonian, which contained the outdated Justinian laws, has not reached our time, understandably, because there was no need to rewrite it, but the third and most important work, “Revision of the Laws,” was preserved in a later edition, which was given to it by the son and successor of Basil the Macedonian, Leo the Philosopher. The latter is responsible for the publication of a huge codex in 60 books, known as the Basilica of the “royal books” (τὰ βασιλικά). The basilicas were published after Photius' nomocanon. From here, the urgent need to revise the civil laws contained in the Nomocanon and to bring them into agreement with the laws of the Basilica naturally emerged. Below we will see that this need was satisfied by the famous Byzantine lawyer of the 12th century. Fedor Valsomon with his commentary on Nomocanon. Basilicas were not, in fact, a direct source of church law. This was the general code of laws of the Byzantine Empire. But the emperors stood there in such a relationship to the church, due to which they received from the spiritual hierarchy itself the name “supreme guardians of church order” (ἐπιστημονάρχης τῆς ἐκκλησίας). Thus, both before and in the present period, state legislation continues to be a direct and abundant source of church law. Most of the state laws on church affairs issued in the present period belong to the emperors of their dynasty of Macedon and Komnenos: of them, the first occupied the throne from the end of the 9th to the end of the 11th century, and the latter from the end of the 11th and throughout the entire continuation of the 12th century. The legislation of the emperors Leo the Philosopher and Alexei Komnenos is especially important for church law. By the way, the laws of these emperors finally transformed marriage from a civil institution into a church one. Three short stories by Alexy Komnenos about church betrothal and wedding, as a condition sine qua non of the reality of marriage in the sphere of civil law, are also included in our Helmsman (Chapter 43). However, few short stories of the Byzantine emperors of the present period are original. The decrepit eastern empire was no longer capable of showing creative power in the field of law; the initiative to create new norms usually came from the church, that is, from the patriarchal synod. As for secular legislators, they mostly waited for some synodal resolution, so that later in a long and elaborate story they could declare that this was exactly how it should be for the common good. Interpreters of the canonical code of the Eastern Church in the 12th century: Alexei Aristinus, John Zonara and Theodore Balsamon The sources of church law belonging to the present period and considered by us, in many respects modified or even completely abolished the law contained in the nomocanon and syntagma of Patriarch Photius. Meanwhile, this last right, and especially that which was created by the church itself at the ecumenical and local councils of the previous period, was recognized in principle as unchanged. This means that it was necessary, one way or another, to bring both rights into mutual agreement. This required, of course, a correct understanding of the meaning of the ancient canons and an understanding of the motives that gave rise to them. Without these two conditions, it would be impossible to correctly judge to what extent the current law contained in new sources agrees or disagrees with ancient canonical norms, and to what extent, in case of disagreement, it can be justified by the conditions of modern church life, which must be taken into account when assessing any law. From here it is clear that church practice, using the Syntagma and the nomocanon of Patriarch Photius on the one hand and new sources of church law; on the other hand, it needed special guidance with the help of which it could, in every presenting case, correctly establish canonical dogma on the basis of these and other (former and new) sources. Such guidance is given in the interpretations of the syntagma and nomocanon of Photius, written in the 12th century by three Greek canonists Alexius Aristinus, John Zonara and Theodore Balsamon. The first two dealt with one syntagma, the last - with both parts of the church code - both the syntagma and the nomocanon. Alexius Aristinus lived under the emperors Alexius and Komnenos. He was a deacon and steward of the great, that is, patriarchal church in Constantinople. Around 1130, by order of John Komnenos, he wrote interpretations of the so-called Synopsis of Church Canons. This name was given to the edition of the canonical code in which the text of the sources was presented not in its original full form, but in abbreviated form, in the form of condensed aphorisms. The source of interpretations of the canonical Synopsis for Aristin were: 1) the full text of church rules, set out by the interpreter in a free paraphrase, understandable to contemporaries, and 2, previous diagrams, i.e., brief explanatory notes on the text of some rules. The method of interpretation is strictly grammatical: Aristin explains the literal meaning of the canons and at the same time sometimes corrects the abbreviated text being explained if the meaning of the full rule was incorrectly conveyed (see his interpretation on the 75th apostolic canon and the 19th canon of the Ancyra Council). But where is the abbreviated text (i.e. the text of the synopsis) was clear and correct, there the interpreter limited himself to only adding the words: ... (...) i.e. the rule is clear in itself (see, for example, Apostolic Rights. 2. 7. 41. 59. 69. Trul. 10. 22. 23. etc.). Since the purpose of the interpretations was purely practical, he, in order to establish canonical dogma, compares some rules with others related to the same subject (Apost. 1. 5. 14. Nik. trans. 1. 2. 3, etc.), notes the rules that have lost their force or have lost changes in later rules (Apos. 14. 15, Chalk. 19, Trul. 31, etc.); draws attention to exceptions to the rules allowed in modern practice (Ap. 6. 20. 61 Trul. 20); Regarding some rules, he notes that they do not represent general church norms, but are special rules issued for a certain place and time (tr. 39 Carth. 66). In some cases, Aristinus also refers to civil laws that are in agreement with church canons (Apos. 67 Nik. trans. 7; Chalk. 3, etc.). For us, the Synopsis and Aristinian interpretations of it are important because they constitute the original of the first, i.e., canonical part of our printed Helmsman. A broader and more difficult task was accomplished in his interpretations by Aristin's contemporary John Zonara. During the reign of Alexei and John Komnenov, Zonara occupied the highest government positions. He was the so-called great drungary of the Vistula, that is, a non-chief of the palace guard and a vice-representative of the imperial tribunal; but then, bored with court intrigues and depressed by grief over the loss of his wife and children, he retired to a monastery and became a monk. Probably in the first years of the long reign of Manuel (1142–1180) and on his direct orders, Zonara, already a monk, took upon himself the work of writing interpretations of the full text of the canons contained in the Syntagma of Photius. When starting this task, Zonara chose a list of the Syntagma in which the rules were arranged not in the previous chronological order, but according to their relative importance: in the first place were the rules of the apostolic and seven ecumenical councils, in the second - the rules of local councils, in the third - the canonical epistles of the fathers of the Greek church. Zonara prescribed the rules of each council with a historical account of the time and purpose of its meeting. The very interpretations of Zonara consist in explaining the text of the rules from three points of view: historical, dogmatic and practical. Since the Syntagma contained canonical material that had been formed over many centuries, much here was no longer clear to the Greeks of the 12th century or received a completely different meaning in practice. Thus, the interpreter had to explain the original meaning of church rules and individual canonical terms, and indicate the circumstances that gave rise to this or that rule. The ultimate goal of the interpreter is to extract from each explained rule or from a whole group of rules relating to a known subject a general dogmatic position, as an undoubted canonical norm. To achieve this goal, he compares some rules with others and, in case of disagreement or direct contradiction between them, decides the question of canonical dogma on the basis of the relative importance of the rules and their chronological sequence (so that the determination of an ecumenical council takes precedence over the rule of a local council or over the canonical response of an individual holy father; the determination of a later council cancels the norm of an equal council of the previous one and the rule of an individual church father). Having thus established the dogmatic meaning of the rules, Zonara often compares them with modern church practice and, generally speaking, condemns any deviations of the latter from the true meaning of the canons of the universal church. Dealing exclusively with the canonical Syntagma, that is, with the legislation of the church itself. Zonara in his interpretations does not touch upon the question of the relationship of church canons to civil laws, although he quotes the latter if they agree with the former. The last in time, but the first in importance of the interpretations of the canonical code of the Greek church was Theodore Balsamon. He lived during the reign of Manauil Komnenos and Isaac Angelos and died at the very beginning of the 13th century, in 1203. Under Manuel, Balsamon took the place of Chartophylax, that is, the chief secretary of the patriarchy. Then, under Isaac Angel, he was appointed Patriarch of Antioch. However, even in this rank he remained in Constantinople, since Antioch at that time was occupied by the crusaders. Even before his patriarchate, Balsamon received from Emperor Manauil Komnenos and Patriarch Michael Anchialus an order to write an interpretation of both parts of the canonical code, i.e., both the Nomocanon and the Syntagma. In relation to the Nomocanon, the task of the interpreter was to accurately note which of the Justinian laws contained in the Nomocanon were accepted in the Basilica, and which were not accepted. The reason for this work was one incident told in detail by Balsamon in his interpretation of the 9th chapter of the 1st title of the Nomocanon. Metropolitan Leonty of Amasia did not fill the vacant episcopal see in his metropolitan district for a whole year, despite three reminders to this effect from the patriarch. Then the latter, on the basis of one passage from Justinian’s novel CXXIII, found in the indicated title and chapter of the Nomocanon, considered himself entitled to ordain a bishop himself to the vacant see. But they began to object to the patriarch that this passage from Justinian’s novella was not accepted in the Basilica, and, therefore, has no legal force. The Patriarch responded to this that the Nomocanon is considered in the church to be a holy book and cannot lose power in any of its letters. The matter reached the emperor, who, together with the Senate, voted against the patriarch; then the patriarch himself saw the need to revise the Photius Nomocanon, that is, to compare the Justinian laws contained in it with the Basilicas, however, without any encroachment on the integrity of its original text. This work was entrusted to Balsamon. In accordance with this task, Balsamon in his commentary on the Nomocanon (which he directly adopts Photius) does the following. Firstly, he will note as outdated and no longer valid those laws of the Nomocanon that were not included in the Basilicas. Secondly, it indicates where exactly the laws identical to the laws of the Nomocanon are located in the Basilicas; if there was any discrepancy between the text of Justinian's law found in the Nomocanon and in the Basilicas, then Balsamon usually wrote out the entire text of the current code (i.e., Basilica). And if the Basilic law was subsequently clarified, changed or completely abolished by some legislative act, for example, an imperial novel or a resolution of the patriarchal synod approved by the emperor, then our interpreter wrote out this later legislative act in its entirety. As for Balsamon’s interpretations on Syntagma, for the most part they consist of almost verbatim repetitions of the interpretations of his predecessor Zonara. Here Balsamon becomes original only in those cases when it is necessary to try out contradictions between canons or laws, or to resolve some casuistic issue. If the contradiction between the canons and laws turned out to be irreconcilable, then the interpreter resolved the issue in favor of the canons on the basis that they have a double sanction: from the councils that issued them and from the emperors who recognized them as state laws, while state laws have only sanction from the emperors alone. When resolving casuistic questions, Balsamon usually cites and criticizes the opinions of others, or, if the issue is resolved by legislation, he cites this legislative decision in the original. The high practical importance of Balsamon's interpretations brought him lasting fame in posterity. Already in the 14th century, Patriarch Philotheus of Constantinople called him the most skillful canonist, whose voice solves the most difficult and confusing issues in church practice. Even secular lawyers valued Balsamon’s interpretations so highly (mainly on the Nomocanon) that they used them to compile various civil compilations, such as, for example. the so-called Enlarged Prochiron (Prochiron auctum), compiled at the beginning of the 13th century and representing nothing more than a private revision of the famous official Prochiron of Basil the Macedonian. The same is true of the famous Hexateuch of Armenopulos. As far as is known, only one voice in the East spoke less favorably of this great canonist, reproaching him for some consistency and partly for contradictions. This was Valsamon’s younger contemporary Dmitry Khomatin, Archbishop of Bulgaria. And one cannot but agree that the above reproach has its grounds. So, for example, in interpretations of the Nomocanon, Balsamon sometimes notes the same law, given in different places of the Nomocanon, as accepted. But these dissenting instructions are very easily explained by the fact that Basilicas, like all books of that time in general, were used in manuscripts, and copyists even of such books as books of laws, having practical purposes in mind, often gave these books their own edition, that is, they made abbreviations, then additions, or rearrangements of some articles in place of others. Balsamon wrote his commentaries over the course of many years, and at one time he could use one list of Basilicas, at another - another. Then, in his interpretations of the Syntagma, Balsamon, despite the principle he expressed that canons should have precedence over laws, very often deviates from this principle and gives preference to civil laws over canons. However, in this regard, it should be noted that such deviations are found in Balsamon’s interpretations only on the rules of local councils and the canonical epistles of the holy fathers, which never received special sanction from the emperors: only the canons of ecumenical councils received such sanction. In a strict sense, the principle of Balsamon, with the help of which he resolved the case of conflicts between canons and laws, is applicable only to the rules of ecumenical councils. Alphabetical canonical Syntagma of Matthew Blastar The interpretations of Aristinus, Zinara and Balsamon that we examined, authorized by church authorities, seemed to merge with the text of the canonical code of the Greek Church, became a necessary component of it, and practically did not make any distinction between the canons and the interpretations on them belonging to these canonists. This is precisely how the compilers of later canonical collections intended for practical use treated these interpretations. Of these collections, the “Alphabetical Canonical Syntagma” by the Athonite monk Matthew Vlastar, compiled in the first half of the 14th century (in 1335), enjoyed particular respect. This is an excellent real dictionary of church law, designed for quickly finding canons and laws related to a particular subject. The author prefaces his work with an extensive preface, in which he tells in detail the history of the canonical and civil sources of church law and, by the way, provides some very interesting information on the history of Roman law, which is not found in other sources. The Syntagma itself is divided by Vlastar into twenty-four departments, according to the number of letters of the Greek alphabet, and the departments are divided into chapters, according to the number of ecclesiastical legal terms beginning with one or another letter. Each chapter usually begins with a statement of canons and concludes with civil laws relating to the same subject. But there are also chapters that exclusively contain either canonical sources (for example, under the letter α, chapter 2), or only civil ones (for example, under the letter α, chapter 4, under the letter β, chapter 5). When presenting canonical sources, Vlastar adheres not to the original text of the canons, but to the interpretations on them belonging to Zonaras and Balsamon; however, he does not name either interpreter by name, which was not required, because these interpretations were well known to everyone. Likewise, he does not indicate the sources from which he takes the civil laws relating to ecclesiastical law; an exception is made only for the novella of Justinian and Leo the Philosopher. But when compared with the legal books of the Byzantine Empire already known to us, it turns out that Blastar most often used the Ecloga, Prochiron, Epanagoga and private compilations from the Basilicas. The Vlastar Syntagma, soon after its composition, became among the Greeks the most commonly used guide to the knowledge of church rules and laws; it was mainly used by the Greek clergy after the conquest of Constantinople by the Turks until the very beginning of this century, when the official publication of the canonical code of the Greek Church, the so-called “Pedalion”, appeared. For the convenience of practice, the Vlastar Syntagma, compiled in ancient Greek, was translated into modern Greek at the end of the 15th century, since the new Greeks were already finding it difficult to understand their old language. At the end of the 14th century, a Slavic Serbian translation of this collection was made, which has been preserved to us in a huge mass of copies, which proves the prevalence of this book in the South Slavic church. Around the middle of the 15th century, a special extract of Byzantine laws from the Vlastareva Syntagma was compiled in Serbia, at the end of which the famous “Legalist” of the Serbian king Stefan Dusan was placed. From here it is possible to conclude that all this extraction was a kind of codification of the sources of Byzantine civil law, as far as it was adopted in Serbia. We will talk about the fate of this collection in Russia in due time. Section 2. History of the sources of Russian church law In the history of Russian church law, we must trace, firstly, the fate of the Greek Nomocanon in Russia, and, secondly, the gradual formation of local Russian church law itself. I. The fate of the Greek Nomocanon in Russia The original Slavic-Russian Nomocanon and its later edition There is no doubt that the first hierarchs who came to Rus' from Greece, from where our ancestors adopted Christianity, brought with them, along with other church books, the canonical code of their church in those, of course, editions that were in primary practical use by the Greeks at that time. Such editions were: the Nomocanon of John Scholasticus and the Nomocanon in 14 titles from the Syntagma of the canons belonging to it. It goes without saying that the Greek hierarchs used these collections in the original. But already in the 11th century we had our own national hierarchy, which, without a doubt, needed a Slavic translation of the Greek Nomocanon. We find direct indications of the existence of such a translation in our country in the 12th century in modern monuments, both Russian and even Greek. So, firstly, in the famous “Inquiries” of Kirik, a Novgorod monk, with which he addressed his bishop Niphon (in the first half of the 12th century), various church rules contained in the Greek canonical Syntagma are often given in full and accurate Slavic translation: it is clear that the author of the “Inquiries” had a ready-made translation of these rules at hand. Secondly, in the inventory of the property of one Greek monastery on Athos (where some went and where Russian pilgrims often took monastic vows) in the inventory compiled in 1142, there are, among other things, several Russian books (ῥωσσικὰ βιβλία), including, “Νομοκάνονον ἕν” – “one Nomocanon”. Thirdly, in the 14th century, the Novgorod monk Zinovy, a student of the famous Maxim the Greek, saw two parchment copies of the nomocanon, one of which was written, according to him, in Novgorod under Yaroslav, the son of Vladimir, who baptized the Russian land, and the other under Yaroslav’s son Izyaslav. From this last Nomocanon, Zinovy, in his essay against the then heretic Theodosius Kosoy, cites several rules in its entirety. Finally, in 4, lists of the Slavic translation of the Greek Nomocanon have been preserved to us, some of which, in terms of the time of writing, others in their language and content, should be attributed to the very first times of the existence of not only the Russian, but also the Slavic Church in general. These lists contain a translation of the very nomocanons that were in primary use among the Greeks in the 9th-11th centuries: the Nomocanon of John Scholasticus and the Nomocanon in 14 titles with the chronological Syntagma of the canons belonging to it. The translation of the first Nomocanon has survived to us in a copy of the 14th century, located in the local Rumyantsev Public Museum under No. 230. One must think that the translation of the Scholastic Nomocanon was made by the Slavic apostle St. Methodius, in whose biography it is directly stated that he, along with other church books, translated the nomocanon for the Slavs. Rumyantsev's copy of the Nomocanon of Scholasticus, although it was written in Russia, its prototype was undoubtedly brought to us from Bulgaria. This can be seen from the various additional articles of his undoubtedly of Bulgarian origin contained in the indicated list, such as, for example, the famous “Law of Judgment for the People” (this is nothing more than a Bulgarian compilation from the Eclogue of Leo the Isaurian and Constantine Copronymus, known to us), excerpts from the discussion of the 10th century Bulgarian presbyter Cosmas against the Bogomil heretics who appeared there, and other small articles. A Slavic translation of another Greek Nomocanon - in 14 titles - has survived to us in a list of the late 11th or early 12th century. This list is located in the local synodal, former patriarchal library under No. 227 and is described in detail in my essay “The Initial Slavic-Russian Nomocanon.” This manuscript contains the Nomocanon in 14 titles and the canonical Syntagma belonging to it in their pre-Photius edition, i.e. without Photius's preface to the Nomocanon and without the rules of the two councils of Constantinople known to us, which were in the case of Photius. It goes without saying that there are also no interpretations of the Nomocanon and Syntagma, which in Greece itself were written only in the 12th century. One can guess that the translation of this Nomocanon was made here in Russia, under the Grand Duke Yaroslav, the “book lover,” about whom the initial chronicle says that he gathered many scribes and “translated” from Greek into Russian many books necessary for the enlightenment of Rus'. The guess about the Russian translation of the Nomocanon in 14 titles is justified, firstly, by the fact that in this translation there are Russian legal terms that are not at all common in other Slavic dialects (for example, the word “tiun”); secondly, by the fact that in the 11th and 12th centuries the sources of Greek canon law were used in our country precisely in this translation, which is contained in the Synodal Helmsman that occupies us. Thus, it was in this translation that Kirik cited the church rules in his above-mentioned “Inquiries.” In the same way, if we compare the above-mentioned quotes from the Novgorod monk Zinovy ​​with this synodal Helmsman, we will also see that Zinovy ​​cited Greek church rules in his work precisely according to this Helmsman. But, unfortunately, this list of Helmsman has no end, where news about the time of writing the books was usually placed, and if there had been an end, then perhaps we would have in this precious manuscript one of those nomocanons that Zinovy ​​himself used. Until the second half of the 13th century, the composition of the original Slavic-Russian nomocanon described by us, as far as Greek sources were contained here, remained unchanged; Only sources of local law were added. Russian Truth, canonical answers of Metropolitan John II (late 11th century), Kirik’s “Inquiries,” some anonymous articles (for example, “The Charter of St. Vladimir.”) Meanwhile, in the Greek church, as we know from the history of its law, in the period from the end of the 9th to the half of the 13th century, many new, more or less important sources of church law appeared, in the form of decrees of the patriarchal synod and imperial novels. In addition, the text of the ancient canons was supplied with interpretations of Arestin, Zonara and Balsamon, which were absolutely necessary for practice. Thus, Russian church practice, which adhered to the original translation of the Greek nomocanon, turned out to be in many respects behind the Greek. At least in the second half of the 13th century, Metropolitan Kirill II, a Russian by birth, personally familiar with the Greek church orders, surveying the dioceses subordinate to him, everywhere he found “much disagreement and rudeness,” which, in his words, stemmed from the fact that the church rules “were darkened (for the Russian understanding) by the cloud of wisdom of the Hellenic language.” The meaning of these words can only be that the Russian nomocanon did not contain many and very important sources of church law, which were in the modern Greek nomocanon and for Russian shepherds, of course, were “overshadowed by the cloud of wisdom of the Hellenic language.” Under such circumstances, the said metropolitan turned for help to the Yugoslav church, where shortly before (in the first half of the 13th century) a new translation of the Greek nomocanon appeared, made by Saint Sava, the first autocephalous, that is, independent of the Patriarch of Constantinople, archbishop of the Serbian church. Having learned about the appearance of this translation, Metropolitan Kirill II asked to send a copy of this new Slavic nomocanon to the Bulgarian semi-independent prince Jacob Svyatoslav, who was himself a Russian. In 1262, Svyatoslav actually sent Metropolitan Kirill a list of this Helmsman in his letter, in which he called the book he was sending the book of Zonara, of course, after the name of the Greek interpreter of church rules known to us. In fact, the new Slavic Helmsman contained, in its first part, a translation of the Greek canonical Synopsis already known to us with interpretations by Aristin, and, only in very few places, Zonara. The second part of this Helmsman contained a significant mass of later sources of Byzantine church law, which were still completely unknown to us, namely several decrees of the Patriarchal Synod (mainly on marriage matters) and short stories of the Byzantine emperors of the 11th and 12th centuries. The new Helmsman was presented by Metropolitan Kirill to the cathedral, which he convened in 1214 in Vladimir on the Klyazma, and partly served as the basis for the decrees issued by this cathedral. Since that time, we have established two editions of the Greek nomocanon or helmsmen, which include almost all the complete lists of this book, going from the end of the 13th to the half of the 17th century, or until the era of the printed edition of the helmsman 4, received by Metropolitan Kirill from Yakov Svyatoslav, and therefore these lists should be called the lists of the helmsman of the Serbian edition. (Usually in works on the history of Russian law they are called helmsmen of the Ryazan edition, because the oldest of the surviving lists of this edition was written in Ryazan in 1284). Other lists of Helmsmen, which appeared in the 13th century, represent only a new edition of the original Slavic nomocanon, which was used in our country even before Cyril II. This new edition came from combining the text of the old nomocanon with the text of the new (Serbian). The lists of this edition retain the original translation of the full Greek text of the church rules, which was used in our country until that time (the new Serbian translation, as concluded above, was made not from the full text of the rules, but from an abbreviated, synoptic one); but to this old translation of the rules interpretations from the new Kormcha were added, and the old Slavic text of the rules was mostly not completed. Then, from the new helmsman, all new sources of church law were brought into the old Russian nomocanon, still, as Metropolitan Kirill put it, “overshadowed by the cloud of wisdom of the Hellenic language.” The most remarkable feature of the lists of this edition is that they contain Russian articles or sources of Russian law (such as: church statutes of St. Vladimir and Yaroslav, Russian Truth, canonical answers of Metropolitan John II, Nifont of Novgorod, definitions of the Vladimir Cathedral of 1274, etc.). The eldest of these articles, of course, are here because they long ago managed to gain a strong position in the original Russian nomocanon and retained this position in its new edition. The lists of this edition of the Helmsman are usually called Sophia's, after the place of writing and the original location of the eldest of them, which was written around 1280 in Novgorod by the will of the local Archbishop Clement and placed in the Novgorod St. Sophia Cathedral for reading and copying by anyone. But we will call them lists of the Russian edition, indicating with this name the place of origin and initial use of the prototypes of this edition of the Russian namocanon, and the fact that only in the lists of this edition are the sources of Russian church law proper. Thus, the new Helmsman, received by Metropolitan Kirill II from Bulgaria, did not displace the former nomocanon from use in our country, but only contributed to the increase in the number of its lists in the new amended edition. And in later times, right up to the printed edition, the Helmsman of the Sophia, i.e., Russian edition, constantly retained primacy in church use. This is evident, firstly, from the fact that it has come down to us in a much larger number of lists compared to the Helmsman of the Ryazan or Serbian edition; secondly, from the fact that from these particular helmsmen we compiled special Russian church-legal collections, the so-called “Righteous Standards”, which contained only sources of law that are not most commonly used in practice; thirdly, from the fact that in the monuments of Russian church law proper, for example, in Stoglav, church rules of Greek origin are usually given in the text and translation contained in the Helmsman of the Russian surname. Russian Helmsmen of the Moscow period From the 15th century, i.e., from the Moscow period of our history, we began to have such lists of Helmsmen, which, partly in formal, partly in material terms, differ significantly from the lists of Helmsmen of the indicated two editions (Russian and Serbian). Thus, in some Helmsmen of the indicated era, church rules are no longer set out in chronological order, according to the Syntagma of Photius, but in a systematic order, according to his Nomocanons, so that in the Helmsmen of this type, the chronological Syntagma was destroyed and became systematic Nomocanons in 14 titles. Both the Serbian and Russian editions of Kormchia were subjected to such formal processing, that is, with both the abbreviated and the full text of the canons. In addition, from the 15th century, lists of the Vlastareva Alphabetic Syntagma in the Serbian translation, which we mentioned in the third period of the history of Byzantine church law, began to come into use in our country. In Vlastar's syntagma, the Russian church again received several new sources of law, which were transferred from here to the previous editions of the Helmsman. Finally, since the 15th century, such Helmsmen began to appear in our country, from the composition and edition of which one cannot help but see a tendency to apply this book to the modern circumstances of the Russian Church. So, after the fall of Constantinople (in 1452), when the Russian Church actually became independent of the Patriarch of Constantinople, at the very beginning of Kormcha there was an article that proved that Russian bishops have the right to appoint metropolitans for themselves, just as this right has long belonged to the Bulgarian and Serbian bishops. Even more noticeable is the tendentious nature of some of the Helmsmen who appeared among us in the 16th century, at a time when many very important ecclesiastical and political issues arose in our country. Some of these Helmsmen are composed, so to speak, in a progressive direction, others in a strictly conservative direction. Of the helmsmen of the first direction, one has reached us, belonging to the monk-prince Vassian-Patrikiev, nicknamed Kosma. It was written in 1567 and was directed against monastic land ownership. The question of monastic estates was then the most burning issue in life: on this issue, two hostile parties formed among the clergy themselves, between which there was a heated literary polemic. Vassian belonged to the party opposed to monastic land ownership. And since the patrimonial life of Russian monasteries was justified by the church rules contained in the nomocanon, Vassian set out to compose an edition of the Helmsman that would not be favorable to monastic land ownership. With this thought, Vassian Patrikeev, who lived in Moscow (in the Simonov Monastery) and enjoyed the favor of Grand Duke Vasily Ioannovich, turned to the then Metropolitan Varlaam and asked for his blessing to write such a Helmsman. The Metropolitan, apparently himself sympathizing with Vassian's ideas, gave his blessing to the writing of such a Helmsman, but with the proviso that Vassian should not throw out anything or change anything in the church rules, as they were set out in the previous Helmsmen; for, added the Metropolitan, “whoever has a chaste mind will not be tempted by the meaning of the rules that speak about monastic villages.” Vassian chose as the original for his Helmsman one of the existing copies of this book, in which the church rules were set out in a systematic order. This means that in this original, all the rules talking about monasteries and monastic property were in one title and there was nothing to look for in different places. Against this title, Vassian, in his Helmsman, wrote various notes in explanation of those places in the rules where it was said about monastic “villages” (i.e., about monastic lands inhabited by peasants). The meaning of the notes was that although the rules speak about monastic villages, the books of Holy Scripture, which have a higher authority than the Greek Nomocanon, prescribe a non-covetous life for the monks. This means that these rules should be recognized as contradicting the Holy Scriptures. Vassian had already finished copying his Helmsman when the famous Maxim the Greek arrived to us in 1518, summoned from Athos by Grand Duke Vasily Ioannovich to Moscow to sort through the Grand Duke's library, which contained many Greek books, and to translate into Slavic those of them that would be necessary for the Russian Church. Vassian Patrikeev managed to become close to a highly educated foreigner and found in him a like-minded person on the issue of monastic estates. It was his services that our monk-prince took advantage of in order to finally edit his Helmsman in a direction unfavorable to monastic land ownership. From Maxim the Greek he learned, firstly, that the presentation of rules in “edges”, i.e. in titles belongs to Patriarch Photius; and, secondly, that in the Greek church there are known interpretations of church rules not only by Aristinus, but also by other more important interpreters: Zonaras and Balsamon. Vassian considered it necessary to include this information in his Helmsman. In addition, he received from Maxim the Greek new translations of those rules and interpretations on them, which spoke about monastic “villages”. From this translation it turned out that the previous translation was not entirely accurate and correct; that the word “village” incorrectly conveys the meaning of the Greek saying “Προάστειον”, which does not actually mean a populated estate, but a country dacha with a small number of free servants. Vassian attributed all this to the title of Helmsman, where the rules about monasteries and monastic estates were summarized. In addition, at the end of his book he placed another extensive special treatise on the indecentness of monks to own people and villages. Here he cites, by the way, the complete rules translated for him by Maxim the Greek, together with Balsamon’s interpretations of them, which are still completely unknown to us. The translation, according to Vassian, was made from the Greek Helmsman, brought to Moscow (at the beginning of the 15th century) by Metropolitan Photius, which was then preserved in the Assumption Cathedral. The fact that the new translation of the rules speaking about monastic estates was made from a list brought by the Metropolitan from Greece, also, of course, should have contributed to the elevation of the authority of Vassian’s Helmsman. As long as Vassian used the personal orders of the Grand Duke, until then his helmsman could not bring any trouble upon him; on the contrary, the Grand Duke himself had a list of this helmsman in his library and often talked with Vassian on the issue of monastic estates. But in 1531, Vassian brought upon himself the Grand Duke's disgrace because he, together with Maxim the Greek, voted against the Grand Duke's divorce from his wife Solomiya Saburova, with whom the Grand Duke had no children. Now Vassian, for his polemics against the monastic estates and for his helmsman, was put on trial at a council in 1531, chaired by Metropolitan Daniel; one of the ardent defenders of monastic land ownership. The Council sentenced Vassian to life imprisonment in the Volokolamsk Monastery of Joseph, in which he soon died. But it is remarkable that his Helmsman was not destroyed as a heretical book; on the contrary, it has survived to this day in several copies contemporary with its compiler. Vassian Patrikeev's attempt to edit the Helmsman in a church-transformational direction naturally gave rise to opposing experiences of compiling the helmsmen for the purpose of preserving the existing church orders. This is precisely the Helmsman’s Book, compiled shortly after the condemnation of Vassian, on behalf of Metropolitan Daniel, by the abbot of the Volokolamsk monastery Nifont. In form, this Helmsman is similar to Vassianova (in it, the church rules are also set out in the Photius Nomocanon system), but under each title of this Nomocanon, not only the rules quoted from Photius are given, but also various extracts from the works of church writers and from other Greek and Russian sources of church law. These extracts become especially numerous and varied where the Nomocanon touched on vital issues of that time and in particular the issue of monastic estates. This helmsman, despite her conservative nature, to some extent shared the fate of Vassian's helmsman. Metropolitan Daniel's successor, Macarius, made a stern reprimand to the compiler of this helmsman for the fact that he set out the church rules not in their original form, that is, not as they were set out by councils and holy fathers, but in the system of the Nomocanon: “such a statement,” said the Metropolitan, “was invented by heretics (a hint at Vassian) in order to hide rules unfavorable to them.” The meaning of the reprimand is clear. In fact, if the church rules are set out in a system, then it is difficult to know whether they are all in this system, or whether some have been issued, whereas if they are set out in chronological order and in the same form in which they were issued by councils or individual holy fathers, then it is not difficult to check all of their existence. In contrast to these systematic helmsmen of both directions, Metropolitan Macarius himself conceived the idea of ​​compiling a helmsman’s manual that would contain all the canonical writing of that time; in a word, I decided to compile a consolidated helmsman, outlining the rules in the same chronological order. Makaria's master helmsman has not been completed. It contains only the rules of the apostles and nine councils, seven ecumenical and two of Photius, some of these rules are given in the Kormcha of Metropolitan Macarius in two and sometimes three translations. In addition, under the text of the rules there are extracts from other sources of church law, various examples from church history, excerpts from the writings of the holy fathers, etc. It is clear that Metropolitan Macarius wanted to give the Helmsman’s Book an edition in which it would provide the basis and material for resolving all the church-political issues of that time. Much of this Helmsman was included by Macarius in Stoglav, the book of resolutions of the council of 1537, which he himself presided over. While compiling his helmsman, Metropolitan Macarius could be convinced that the lists of Korkchi, as well as other church books, were spoiled by copyists in many places, and sometimes of significant importance. In view of this sad fact, the Council of the Hundred Heads drew attention to the damage to church books and decrees, so that the priestly elders would supervise the scribes who are copying church books, give them good originals for copying, then, after copying is completed, they would check the new copy against the original and, if it turns out to be faulty, they would correct it themselves; in cases where the scribes themselves began to put books on sale without correction, then the church elders were given the right to select these books and, after correction, give them to poor churches. The Council, by the way, also issued a decree that every church (at least in Moscow) should have “complete church rules,” that is, a complete list of helmsmen in one or another edition. But in order to really correct the Slavic text of the Helmsman, which was preserved for several centuries by correspondence and, therefore, was subject to constant damage, it was necessary to compare it with the Greek source, but the censors of church books of that time - the priestly elders - were not capable of this task, and the very correction of these books from the Greek originals would then have encountered almost necessary obstacles in the ignorance of the masses, who looked with hostility at any church corrections, as was proved by the case of the above-mentioned Maximus the Greek. It remained, therefore, to be content with the existing lists of Helmsmen. This was the case until the half of the 17th century, before the era of the printed publication of the Helmsman. Printed edition of the Helmsman 1650–1653 The printing of Helmsmen began in the same year in which the famous Code of Tsar Alexei Mikhailovich was published (in 1679). The fact of this coincidence is significant. Just as under Tsar Ivan Vasilyevich, following the publication of his Code of Laws, a council was convened to publish the book of the church code (Stoglav), in the same way now the same edition of the church nomocanon is connected with the printed edition of the state Code. It is clear that both matters were considered equally important. It is also remarkable that the original for the printed edition of Kormchaya was chosen not from the Russian edition, but from the Serbian edition, which did not contain Russian sources at all. To explain this rather mysterious fact, one must assume one of two things: either the council, with whose permission the printed Helmsman was published, found that the lists of the Serbian edition contained the text of sources of church law more accurate than the Helmsman's Russian edition; or this council was guided by the view that the sources of church law, borrowed by the Russian church from its mother the Greek church, have the highest authority, compared with the sources of law of Russian origin, which were contained in the Helmsman of the Russian edition. Our spiritual government tried to protect the first kind of sources from further damage by publishing them. The printing of the Helmsman began on November 7, 1849, by order of Tsar Alexei Mikhailovich and the blessing of the then Patriarch Joseph, and ended on September 7 of the following 1850. But the copies of the Helmsman, printed under Patriarch Joseph, were not released from the printing house, probably because Patriarch Joseph, a suspicious and indecisive man, did not trust the “spravchiki” (correctors) of the printing house, fearing that they had made any deviations from the original approved by the council for printing. Be that as it may, only the successor of Patriarch Joseph, the famous Patriarch Nikon, in the first year of his reign, subjected the Helmsman to his predecessor to a “conciliar examination.” The news of this “examination” is set out in the afterword of Nikon’s edition of Kormcha in 1653, where it is said that when this book was finished printing, then, in order to avoid any disputes, His Holiness Patriarch Nikon examined it with the entire consecrated cathedral and, what was not corrected, he corrected. For this correction, the afterword continues, many lists of Helmsmen were collected, of which one turned out to be especially correct, and, in addition, the ancient Greek Helmsman, belonging to the Jerusalem Patriarch Paisius, who then lived in Moscow, was taken into account. But in fact, Nikon’s edition of the Helmsman is almost no different from Joseph’s: the whole change introduced by Nikon in the edition of his predecessor consists only in the fact that several articles were added at the beginning and end of the book; in addition, some sheets were reprinted, although we cannot indicate the sheets of this reprint. Thus corrected, 1200 copies were sent to churches for use on July 15, 1653. But several copies of the Joseph edition were put into circulation by persons dissatisfied with Nikon’s censorship and who subsequently became the heads of the schism caused by Nikon’s church corrections and those that exist to this day, under the name of the Old Believers. The original copies of this edition of Josephus constitute the greatest bibliographic rarity and are literally worth their weight in gold by our Old Believers. Until now, only one copy of this book is known in Russia, which in 1887, with the blessing of the Holy Synod, was reprinted in the Edinoverie Moscow printing house. The printed Helmsman in the Nikon edition consists of 71 chapters. The first 41 chapters contain a Slavic translation of the Greek canonical synopsis already known to us with interpretations by Aristin and only in a few places by Zonara. Starting from chapter 42 and until the very end, it contains mainly the laws of the Byzantine emperors on church affairs, namely the already known extract from Justinian’s short stories, compiled by John Scholasticus in chapter 87. (ch. 42), three short stories by Alexy Komnenos about church betrothal (ch. 43); civil laws of the Photius nomocanon, separated from the canons (i.e. from their index - Chapter 44), the law of judgment for people (Chapter 46), Prochiron of Basil the Macedonian, or, according to Kormcha, “City Law” (Chapter 48), Eclogue of Leo the Isaurian and Constantine Copronymus, or “The Headlines of the pious kings Leon and Constantine” (Chapter 49). Then follow various additions to the first, or canonical part of the Pilot's Book. Subsequently, these two sections of the Helmsman’s Book were directly divided into two parts: canonical and civil, but the text of the sources itself was published, strictly speaking, without any changes until 1839. Attempts to replace the old translation of the Helmsman with a new one The printed edition of Kormcha, of course, stopped further damage to its text. But this text was already damaged in many places even before it was printed. But the main drawback of the printed Helmsman was that in its most important, canonical part it represented a translation of an abbreviated, and not the full, text of church rules, and moreover, the translation was obscure and not always correct. Let us point out, for example, one mistake, especially important, made in the translation of the interpretation to the 72nd canon of the Trullo Council, where we read: “If a faithful husband wants to live with an unfaithful wife, or a faithful wife wants to live with an unfaithful husband, let them not be separated.” These words obviously express the idea that the continuation of the marriage of a person who has converted to Christianity with a spouse who remains outside Christianity depends on the will of the former, and in support of this idea, a reference is made to the first letter of the Apostle Paul to the Corinthians (Chapter 7, Art. 12-16). But in the quoted passage of the apostolic epistle, a completely opposite idea is expressed, that the continuation of the marriage depends on the will of the non-Christian party. The unsatisfactory nature of the printed Helmsman in canonical terms was undoubtedly recognized in our country even during the period of the patriarchate. The last of our patriarchs, Adrian, was especially occupied with the thought of a new translation of the Greek canonical code. He turned several times to the Patriarch of Jerusalem Dositheus with requests to send the Greek Helmsman to Moscow either in correct lists or in correct printed editions. Patriarch Dosifei did not skimp on sending both books to Moscow - both handwritten and printed; and, by the way, he sent the editions of Leunclavius ​​(Ius graeco-romanum) and Beveridge (Pandectae canonum ecclesiae graecae) ​​already known to us. Patriarch Adrian entrusted the translation of these books into the Slavic language to the director of the printing house, the Chudov monk Euthymius. In the preface to his translation, Euthymius lists the most important errors in the printed edition of the Helmsman in comparison with its Greek original and indicates the need to publish this book in a new translation. But Evfimiev's translation remained in the manuscript. It is clear from everything that our spiritual government, remembering the sad consequences of Nikon’s church corrections, did not dare to replace the old Helmsman with a new one, even if it was more serviceable. The case, which so occupied Patriarch Adrian, was repeatedly brought up in St. Synod. So, in 1734, St. The Synod, at the suggestion of its vice-president Feofan Prokopovich, instructed its translator Kozlovsky to undertake a new translation of Beveridge's edition. In 1742 this translation was completed; but, as it turned out, the translator did not translate from the Greek original, but from the Latin translation, printed by Beveridge in parallel with the Greek original. Probably as a result of this, Kozlovsky’s translation was not approved for publication, but the consciousness of the need to publish the canonical code of the Orthodox Church in a new and more correct translation remained in force. At the beginning of the second half of the last century, the Holy Synod made a determination of the following content: first, to publish a new translation of the full text of church rules; secondly, compare the old text of the Helmsman’s Book with its Greek original and note those places in it in which there will be a disagreement between the translation and the original. The execution of this complex task was entrusted by the Synod to the teacher of the Moscow Slavic-Greek-Latin Academy Joasaph Yaroshevsky and the synodal translator Gregory Poletika. But Yaroshevsky, citing illness, soon abandoned the duty assigned to him, and the translation was completed by Poletika alone. In 1766, the Synod ordered three persons to review this translation and check it against the Greek original: Archimandrite Varlaam and the translators of the Moscow Printing House, Hieromonk Sophrony Mladenovich and Peter Yakimov. These persons completed their work in 1770 and submitted it for approval by the Holy Synod. The Synod instructed its member Archimandrite Platon, later Metropolitan of Moscow, to once again consider the translation of Poletika. But Plato was made archbishop of Tver in 1774, which prevented him from fulfilling the order of the Holy Synod. Thus, in the last century, despite the appearance of two translations of the canonical code of the Greek Church, the thought of St. The Synod on the new edition of the Helmsman did not materialize. Meanwhile, copies of the old Helmsman, published under Patriarch Nikon, became a great rarity: this book was not even found in many spiritual consistories, while the need for it was found not only in spiritual, but also in secular institutions, for example, in the governing Senate. As a result of this, the Holy Synod in 1786 decided to re-publish Nikon’s Helmsman’s Book in all respects with the 1653 edition. In this first synodal edition, only the following deviations from the Nikan edition were allowed: firstly, the Helmsman is divided into two parts, the canonical one, which contains, for the most part, different extracts already known to us from Byzantine laws on church affairs. Secondly, the polemical treatise against the Latins, i.e., Catholics, written in the middle of the 11th century, during the era of the formal and final division of the Eastern and Western churches, by the Greek monk Nikita Stifat (in Nikon's Kormcha, this treatise occupied chapter 47), was excluded from the second part. Thirdly, at the end of chapter 50, which treats the various types and degrees of kinship as an obstacle to marriage, there is attached a list of ancient names of kinship and property used in this chapter with their translation into modern Russian. This first Synod edition was reprinted several times until 1839, when, finally, the Holy Synod published a new translation of Photius's Syntagma under the title “The Book of the Rules of the Holy Apostles, Holy Councils of Ecumenical and Local, and St. fathers." This book differs from the old Helmsman in that it contains a translation of the full text of church canons, but without any interpretations. As if in exchange for the latter, a few and not very important explanatory notes were added to some rules on behalf of the Holy Synod. The translation of the canons contained in the Book of Rules is, of course, much more perfect than that found in the old Helmsman. But it cannot be said that he did not leave anything better to be desired. In the first editions of the “Book of Rules,” even one important material mistake was made: in the translation of rule 54 of the Council of Trullo, which speaks of kinship and property as an obstacle to marriage, the Greek word ἐξαδέλφη used in this rule was translated by the word “niece,” while this word in the sources of Byzantine law is constantly used in the meaning of cousin (consobrina). But this error was corrected in the 1874 edition of the rule book. So, this means that we have two Slavic editions of the Greek Nomocanon: the old Helmsman, where the canonical code of the Greek church is presented in the form of a Synopsis, accompanied by interpretations of Aristinus and the passages of Zonara, and the new “Book of Rules”, which contains a translation of the full text of the church canons according to the Syntagma of Photius, but without any interpretations. With this we will finish our review of the fate of the Greek canonical code in Russia. II. Sources of Russian church law proper The Greek Nomocanon, although accepted by us from the very beginning as the basis of church law, could not, however, receive full and direct application in all spheres of church life and activity in Rus'. Not to mention the fact that the civil legislation of the nomocanon was in many respects alien to local legal life and local legal views. The very canons of the church contained in the Syntagma of Photius, in many respects, received in us a different meaning than they had in the modern practice of the Greek church. Thus, from the very foundation of the Russian church, the development of special, actually Russian church law begins, which, of course, is of particular interest to us. In the historical outline of this proper Russian church law, we will focus only on its most important monuments to the sources of the current law, and, first of all, we will pay attention to the monuments of church law proper, that is, those that originated from the church itself and are distinguished by us by the special name canonical. A. Canonical monuments Until the half of the 15th century (before the fall of the Byzantine Empire), the Russian Church was dependent on the Patriarch of Constantinople. From him she received her metropolitans, who for the most part were Greeks by birth (with a few exceptions). It goes without saying that during this period our spiritual hierarchs and princes often had to turn to the patriarchs, and sometimes to the Byzantine emperors, with questions on matters of church administration. It is also clear that the response letters of the patriarchs had binding force in our country, in other words: they constituted a special source of Russian church law proper. They have come to us partly in modern Russian, i.e. Slavic translation, partly only in the Russian original. All of them were published by me in volume VI of the Russian Historical Library, which contains monuments of ancient Russian canon law from the 11th to the 15th centuries inclusive. Let us name the most important of these letters, namely those that have been preserved in a modern Russian translation and were partly part of our Helmsmen: 1) The letter of Patriarch Luke Chrysoverg in 1160, written to the Suzdal prince Andrei Bogolyubsky on the occasion that this prince wanted to establish a metropolis in his capital city of Vladimir on Klyazma, separate from the metropolis of Kyiv and all Rus'; the patriarch did not agree to this in his letter. 2) Letter from Patriarch Herman 2 to the Russian Metropolitan Kirill I, written in 1229, stating that it is impermissible for Russian princes and nobles to appoint their slaves to priests and deacons without releasing them. 3) Conciliar answers of Patriarch John Vekkos to the questions of the Russian Bishop Theognostus of Sarai, given in 1276. 4) Letter from Patriarch Nifont to the Tver Grand Duke Mikhail Yaroslavich regarding his complaint about the allegedly illegal actions of the Russian Metropolitan St. Peter's between 1312–1315 5) Letter from Patriarch Nile, written around 1382 in Pskov for the local people’s assembly about duties on church “henchmen” and the heresy of the so-called “Strigolniks” that appeared in Pskov at that time, who argued that there was no need to deal with either bishops or priests who received their rank for money. The Patriarch refutes this teaching and proves that these duties cannot be viewed as a “holy purchase”, as a trade in the holy order. But even after the Russian Church became autocephalous, that is, independent of the Patriarch of Constantinople, it, as part of the united Eastern Orthodox Church, continued to be in relations with the Eastern Patriarchs and receive from them synodal charters, which were still made sources of canon law in our country. Such, for example, are the patriarchal charters on the establishment of the patriarchate in Russia (printed at the beginning of Kormcha) and letters on the replacement of the Russian patriarchate by the Synod, established in 1721. In our country, as in the Greek Church, the local bodies for the development of canon law were: 1) councils, and 2) individual church-historical persons. Our church did not know correct periodical councils. In our country, councils were drawn up by chance, due to the emergence of some disputes, the emergence of heresies, etc. The most common reason for drawing up councils were those cases when it was necessary to ordain a new bishop to some vacant see (since, according to the main church canon, a bishop can only be ordained by a council of bishops). From the first period of the history of our church (until the end of the 15th century), the definitions of only one Russian cathedral have reached us - in Vladimir on the Klyazma, convened in 1274 by Metropolitan Kirill II shortly after the pogrom inflicted on the Russian soil by the Mongols. The definitions of this council, probably immediately after their publication and by direct order of the Metropolitan himself, were included in the Kormchay Book of the Russian edition. In the history of our canon law, the decisions of the Vladimir Council are of great importance: they set out a number of measures aimed at restoring church discipline, shaken by the Mongol invasion, and at eradicating various popular vices, partly adopted from the Mongols. First of all, the attention of the cathedral was drawn to the incorrect filling of clerical positions: in many dioceses, bishops took money from proteges, and forced the poor to perform various field and housework. Condemning these abuses, which, however, also existed in the Greek Church, the council, however, could not completely eradicate this old anti-canonical custom, but established only the maximum tax rate for church proteges. Further, the cathedral orders that attention be paid to the mental and moral qualities of proteges, and prohibits the appointment of persons under a certain age, slaves, etc. In the life of the people, the cathedral noticed and condemned, on the one hand, the remnants of old superstitions, various pagan customs observed during marriages, and on the other hand, it condemned folk games and fights adopted from the Mongols, and decided that whoever is killed in a fist fight will be deprived of church burial. Along with the Vladimir Cathedral of 1274, only cathedrals from the Moscow period of our history can be erected, the decrees of which have reached us in their original form. The most important of them are the following: 1. Moscow Council of 1503, convened by Grand Duke Ivan III. This council issued a number of very important resolutions, namely: on the non-appointment to church positions “by bribe” (for money), on the prohibition of priestly service for widowed priests and deacons (this is a purely Russian rule, which the Greek Church did not know); on the separation of male and female monasteries; (in ancient times we often had common fiefs). To the same council, the Grand Duke proposed a very important question about the transfer of church and monastic estates into state ownership (the secularization), but the council responded to this last question with a decisive refusal. 2. Moscow Cathedral of 1551, known as the “Stoglavogo”. This name was given to the cathedral because the book in which the acts and decrees of this cathedral have come down to us is divided into one hundred chapters, apparently in imitation of the Tsar's Code of Law, published in the previous year. The council was convened by Tsar Ivan Vasilyevich to discuss “On the many different church rites.” The subjects of conciliar reasoning are indicated in the royal questions, which are presented in Stoglav in two series (in the first there are 37 questions, in the second - 32). The questions concern, indeed, “many different” aspects of church and public life. But before presenting the contents of Stoglav, it is necessary to dwell on a question that has recently been the subject of lively scholarly debate, namely: is Stoglav a genuine cathedral book, or just a private collection of acts and resolutions of the cathedral? Doubts about the authenticity of Stoglav were based on the fact that this book contained decrees that later served as the basis for our schism, known as the Old Believers. So, for example, in Stoglav it is prescribed to make the sign of the cross with two, and not three, fingers, and the three-fingered sign of the cross is declared an evil heresy; “Alleluia” is ordered to be doubled, not tripled (that is, pronounced twice, not three times); shaving the beard and mustache is also recognized as heresy, an encroachment on the image of God, according to which our ancestor Adam was created. But all doubts about the attribution of these decrees to the council itself of 1537 were dispelled after the so-called punishment lists according to Stoglav, i.e. letters of some members of the cathedral to the subordinate clergy with a detailed statement of all the cathedral decisions. In these letters, all the above resolutions of the council favorable to our Old Believers are read verbatim. Three such charters have been opened so far: two belong to the chairman of the cathedral, Metropolitan Macarius, and one – to Savva, Bishop of Krutitsky. From these letters it is clear, by the way, that at the council itself their general form was drawn up, as acts designated specifically for the publication of council resolutions. Now let us turn to consideration of the contents of Stoglav in its entirety. This, without a doubt, is one of the most important monuments of ancient Russian church law. It touches on all aspects of church life, as far as it comes into contact with the life of the state and society. A special place in the Stoglava is occupied by decrees on various folk customs and superstitions, on the procedure for marriages, on appointment to church positions, on monastic discipline, on the ransom of prisoners, on the space of the church court, on monastic and patriarchal estates, on public charity, on the establishment of public schools, etc. Giving its decrees on church issues, the council at the same time pointed out in some cases the need for “terrible royal commandments" to eradicate some national vices, which was fulfilled by the king (see the 2nd decree, which serves as a supplement to the Code of Law). A collection of all council acts and resolutions was probably compiled at the end of the council meetings. Initially, this collection, apparently, did not yet have a division into chapters, as one can quickly guess from the fact that the former Metropolitan Joasaph, who was then living in retirement in the Trinity Lavra, and to whom the conciliar book was sent for review and for possible corrections, when giving his comments on it, referred not to the chapters in the book, but directly to the text of the conciliar decrees themselves. The council took into account almost all of Joasaph’s comments, i.e., corrected its decrees based on them, and after this the entire cathedral book was divided into 100 chapters. There is no doubt that Stoglav was considered a canonical book in our country, at least for a whole century. Many of his decrees were confirmed more than once in royal orders and conciliar charters of the second half of the 16th and first 17th centuries, and some were published in church books (for example, in the Trebnik - decrees on the church court). True, the Great Moscow Council (1666–7) condemned Stoglav and admitted that it was written in “simplicity and ignorance.” But this council cannot be extended to the entire content of the cathedral book of 1531; it directly concerned only those decrees that our schismatics regard as unchangeable, church dogmas, although these are indifferent ritual trifles. Therefore, even after the Great Moscow Council of 1667, our spiritual authorities continued to use Stoglav as a canonical book. Even in 1700, Patriarch Adrian, in his answer to the question of the boyars who were involved in drawing up a new code, about what the ecclesiastical courts were guided by when deciding civil cases under their jurisdiction, cited quite numerous extracts from Stoglav, as from the book of current laws of the Russian Church. Thus, with the indicated exceptions, Stoglav was recognized in our country as the source of current Russian law until the beginning of the 18th century. After the Stoglavy Council, the following councils are of particular importance in the history of Russian canon law: 3) Council of 1589 under Tsar Theodore Ivanovich on the establishment of the patriarchate in Moscow instead of the metropolitanate. The resolution of this council, together with the synodal charter of the Eastern patriarchs, confirming the establishment of the Russian patriarchate, is placed at the beginning of our printed Kormcha. 4) The Great Moscow Cathedral of 1666–1667 is without a doubt the most important of all that our church history knows. The council was convened by Tsar Alexei Mikhailovich for two reasons: 1st, regarding the unrest caused in the Russian church by the schism of the Old Believers, who did not want to recognize the corrections of church books made by Patriarch Nikon; 2, for the trial of this patriarch, who had entered into a feud with the king himself. Present at this council were: two eastern patriarchs (Paisius of Alexandria and Macarius of Antioch), since without their participation a competent trial over our patriarch could not be held. This means that the acts of the council are divided into two parts: one contains the disciplinary decisions of the council, the reason for which was the schism, and the other contains the court records in the Nikon case. For us, of course, the first part of the council’s acts, its disciplinary definitions, is of particular importance. These definitions in many respects represent a rather strict revision of Russian church law in those very points in which it deviated from the norms contained in the Greek canonical code. Thus, the cathedral abolished all the decisions of the Stoglavy Council that were favorable to the schism. He further condemned as uncanonical the conciliar decisions of 1621 under Patriarch Filaret on the rebaptism of Western Christians converting to Orthodoxy. Finally, the council abolished the Russian rule eliminating widowed priests and deacons from the priesthood, which was formally decreed at the Moscow Council of 1503. At the same time, the cathedral, for its part, issued several new and extremely important decrees, for example, on the establishment of metrical registers in churches. The decrees of the great Moscow Council are cited in the “Rules of the Church Clergy and the Order of Monasticism,” published at the end of the spiritual regulations of Peter the Great. Most of these resolutions were adopted into the first Complete Collection of Laws of the Russian Empire. The last and most abundant source of canon law in ancient Rus' were the answers, letters and pastoral letters of the ancient Russian hierarchs: metropolitans and diocesan priests. The eldest of these monuments were part of the Slavic Russian nomocanon, which means they were recognized as important as cathedral decrees. Such significance was given, for example, to the canonical answers of Metropolitan John II, who lived at the end of the 11th century, the answers of the Novgorod bishop Nifont (12th century) to the “Inquiries of Monk Kirik” and the anonymous teachings of some Russian bishops, which they pronounced before the councils of the local clergy, which met in the first week of Lent, and the so-called “scroll of ordination”, i.e. a bishop's instruction to a newly ordained priest, which was given to the latter upon his release to the parish. Especially many more or less important in their content canonical messages, answers and letters from two Russian metropolitans have been preserved: Cyprian, who lived at the end of the 14th century, and Photius, who ruled the Russian Church at the beginning of the 15th century. From all the mentioned monuments, it is revealed, by the way, how tightly the laws and rules contained in the Greek nomocanon were grafted into the life of the Russian people and even the clergy themselves. Metropolitans and bishops of the 15th, 16th and even 17th centuries continue to fight (and not with great success) against the same folk customs that their predecessors fought against in the 11th and 12th centuries, for example, against marriages without a church wedding, arbitrary divorces, marriages in prohibited degrees of kinship, etc. All these monuments were collected and published by me in volume VI of the Russian Historical Library. b) Sources of Russian church law of state origin The oldest of the monuments of this category are recognized as two well-known church statutes that have come down to us with the names of the first two Christian princes of Rus': St. Vladimir and his son Prince Yaroslav I. Both of these charters have come down to us in a mass of copies and in different editions, more or less different from one another. This disagreement between the lists, as well as the anachronisms often found in both Charters, gave rise to doubts about their authenticity. Indeed, the written form in which the ecclesiastical legal content of these statutes is expressed cannot be recognized as authentic, i.e., one cannot assume that the named princes themselves wrote the statutes bearing their names. But if we pay attention to the very content of both statutes and compare the decrees contained in them with the circumstances of the Russian Church in the era of its emergence, then the answer should be such that most of the content of both statutes can most likely be attributed to those great princes who received their written tradition. From these two points of view, the question of the origin of both Charters must be resolved. 1. Charter of St. Vladimir, as a written monument, cannot be a genuine work of this prince. At the beginning of this charter we read: “I, Prince Vladimir, after my baptism, received the first metropolitan from the Constantinople Patriarch Photius.” But St. could not say this about himself. Vladimir, because Patriarch Photius died almost 100 years before his baptism. In vain, some defenders of the original Vladimir Charter are trying to eliminate this anachronism by saying that the singing Russian hierarchs who came to us from Greece could be called “received from Photius,” as followers of this patriarch, known for his struggle for the independence of the Eastern Church from the power of the Pope: such a church party did not exist in Byzantium in the era of the Baptism of Vladimir and such an allegory was completely inappropriate in a legislative act. The mention of Photius in the Charter of Vladimir is explained very simply: the editors of the Charter did not know the name of the patriarch under whom Vladimir was baptized; but from the Novgorod Chronicle, in which the baptism of Rus' under Vladimir was heard with the first baptism under Askold and Dir, they learned that this first baptism took place in the patriarchate of Photius. This erroneous news of the Novgorod Chronicle was repeated in the church charter, the oldest copy of which was undoubtedly written in Novgorod under Bishop Clement (about 1280). The later copyists of the Charter noticed this anachronism and threw it out of the text of the Charter, in which there is no name of Photius and which, therefore, is recognized by some as genuine. But we cannot agree with this either. In the lists of the short edition, one gross historical inconsistency remained, which is also characteristic of the lists of the extensive edition, namely: about the tithe given to the Vladimir Kyiv Church in the name of St. Mother of God, it is said that it was given to this church in all the cities of the Russian land, while in the initial chronicle it is directly stated that Vladimir gave a tithe to the said Kyiv church “from his property and from his cities, that is, from his personal property, movable and immovable; “The tithe for all the cities of the Russian land,” which the Charter speaks of, is a general church tithe, assigned by Vladimir for the maintenance of the bishops established under him. The source of this last tithe was the prince's state income (judicial duties and tribute), and not his personal property. But the Charter in its general editions gives both tithes to one Kyiv Mother of God (Tithe) Church. As a written monument, the Charter of Vladimir was formed, in all likelihood, from anonymous historical records of what was done in favor of the church by the first Christian princes of Rus' in general. Lists of such records in which the name of St. Vladimir is not mentioned at all, it has come down to our time from the 12th century with the following inscription: “about church people, and about tithes, and about episcopal courts and about city standards,” Of course, such a bishop was used at the end of the 13th century by one Vladimir bishop in his teaching to a local prince, the son of Grand Duke Alexander Nevsky. Bishops complains about the looting of his cathedral church and at the same time cites almost verbatim the contents of the Charter of St. Vladimir, but does not call this prince by name. Hence it must be concluded that the author of the teaching did not yet know the Charter of Vladimirov in the form of a personal grand-ducal charter, but used it in the form of an anonymous historical record about the first Christian princes in Rus'. Such entries were the original edition of the Charter: they contain neither anachronisms nor any historical inconsistencies. Some of them (namely, the record of church courts) probably appeared under Vladimir himself, this is indicated by their language, which so amazed Karamzin that he would have been ready to recognize this Charter as genuine if it had not contained the mentioned anachronism. Words such as “Smilnoye zastávanye” (prenuptial agreement), popodanie, indulgences, zuboezha, enmity (payment for murder) prove not only the antiquity of the language of this entry, but also the fact that it, in all likelihood, was made by a southern Slav, since some of these words, for example, smilnoe and enmity (in the decree sense) were not used in Russian legal monuments. In another entry, in the list of church persons, a forgiver and a suffocating person are mentioned: all these again are deep archaisms. Later scribes made various additions and changes to these records: one added an explanatory gloss to some incomprehensible word; another added glosses to the text, a third brought the scattered notes into one whole. And so, probably, at the end of the 13th century, one editor of these records, undoubtedly a Novgorodian, taking advantage of the evidence of the local chronicle about the baptism of Vladimir under Patriarch Photius and the fact that Vladimir issued a special charter on tithes in favor of the Kyiv Mother of God Church, gave the previous records about church courts and people the appearance of a church-statutory charter of St. Vladimir; but along with this (named) charter, the previous historical records about the first Christian princes in Rus' remained in use; Only in the later lists of these records was the news about the baptism of Vladimir and about his acceptance from the Greeks (and not from Patriarch Photius) of the first Russian metropolitan and about the publication of a special church charter, i.e., the same old records, but in the form of a church charter of St. Vladimir. Turning to the very content of the church charter attributed to St. Vladimir, one cannot help but recognize in it a completely reliable testimony about the legislative activities of the first Christian princes of Rus' on church affairs. Without a doubt, first of all, these princes had to be given the spiritual hierarchy and church institutions that appeared to us along with Christianity, the means for subsistence; and here, indeed, is the church charter attributed to St. Vladimir, begins with a decree on church tithes, that the Grand Duke gives the church a tenth of all his estates (tithe in favor of one Kyiv church) and a tithe of all state income - from judicial duties (vir and sales) and trade (general church tithe). Next, Vladimir needed to determine the circle of the church’s departments, to delimit the sphere of activity of the spiritual and temporal authorities, and, indeed, the Charter, following the decree on tithes, enumerates “church courts,” that is, matters that should henceforth be exclusively within the jurisdiction of the church. These are, first of all, purely church and religious matters, which, of course, until this time could not arise in the life of a non-Christian people, and then, several purely civil and criminal matters, in which there is a certain moral side, which has one or another relation to the church and religion. Namely, the Charter lists: 1st, crimes against faith and the church: heresy, sorcery, “toothbender” (biting by a wizard or witch to suck blood), sacrilege, sacrilege (church theft); secondly, matters of the marriage and family union: divorce, marriage conspiracy (“milo” - dowry, and “zastav” - the same as the later term “row” or “charge”, i.e. marriage agreement with the imposition of a penalty), “snatching”, i.e. kidnapping a woman for marriage, “pobbing” means rape of someone else’s wife or daughter; the following words “between husband and wife about the belly” should, in all likelihood, be read: “straight between,” i.e. disputes between husband and wife about property, marriages in prohibited degrees of kinship and property (“they will get caught in the tribe or matchmaking”), adultery, insult of parents by children (“son or daughter beats father or mother”), inheritance litigation, etc. The third part of the statute of St. Vladimir contains the number of church persons. Just as the prince had his own people “combatants”, “servants” and “youths”, so the spiritual hierarchy, according to the Charter of Vladimir, receives its own people, about whom, the Charter says, “neither the prince nor his tiuns care.” The charter classifies all the clergy as these church people: priests, deacons, low clergy, monks and monks, then also includes here non-spiritual persons, but those under the patronage of the church (these are: blind people, lame people, “stifled people,” i.e., a slave set free by his master according to a spiritual will; “forgiven,” i.e., a slave freed by his master even during their lifetime, further, widows, orphans, wanderers, in a word, the so-called PM. All these persons were given over to the full department of the church, that is, they were subordinate to the church hierarchy in all their life relations. Therefore, they were tried by ecclesiastical judges not only in those cases, civil and criminal, that arose between them, as the words of the charter directly indicate: “the bishop is in charge of the trial or offense between them (i.e., claims for personal and property offenses, or marriage, or enmity (= murder) or ass (disputes about inheritance). With the existence of such a category of persons, it was necessary to establish such the so-called “vobchago” or “mixed” court for resolving cases arising between church people and princes. And, indeed, having counted the “church people”, the charter attributed to St. Vladimir gives the following resolution: “even if another person speaks with that (church person), it will be a different court.” 2. Charter of Prince Yaroslav Vladimirovich on church courts. The church charter, bearing the name of Yaroslav, is attributed to this prince, of course, because it adopted the system of rules and sales of the Russian Pravda, and the Russian Pravda, as is known, is inscribed: “The Court of Yaroslav Vladimirovich, the Russian Pravda” (although this inscription refers, in fact, to only one article of the Pravda). This charter has reached us in relatively late copies (the oldest of them do not go back further than the half of the 15th century). Therefore, it contains much more recent layers than in the Charter of Vladimir. The original basis of the Yaroslavl Charter, one must think, is made up of all those articles that are in connection with the Vladimir Charter, which define punishments for crimes that the senior charter handed over to the court of the spiritual hierarchy, not without defining the penalties for these crimes. These are the articles of the Yaroslav Charter on penalties for cheating, beating, willful divorce, incestuous marriages, etc. The original basis of the Yaroslav Charter should also include those articles in which penalties are imposed for crimes against church laws, although not mentioned in the Charter of Vladimir, but undoubtedly quite common in the national life of that time, namely the articles on bigamy, i.e. cohabitation with two women at the same time, on forcing children to marry by parents. As for, finally, those articles that speak of purely criminal crimes as subjects of church court, and not princely (for example, theft, arson, murder, etc.), then all such articles relate to the sphere of a special court of the spiritual hierarchy, to which only church people were subject, that is, those who, according to the charter of St. Vladimir, were subordinated to the church hierarchy in all their life relations, so that all crimes committed in the circle These persons were the subject of a church court, and only in those cases where either the criminal or the victim of a crime was a non-church person, a “mixed” court was appointed, according to both statutes, i.e. composed of spiritual and secular judges, between whom court fees were equally divided. Church charters of appanage princes of the 12th century The church orders established under the first Christian princes of Rus' and certified by church statutes bearing the names of the great princes Vladimir and Yaroslav were accepted in all regions of the Russian land. This can be seen from the authentic church charters of some appanage princes of the 12th century. These charters repeat almost the same decrees that are contained in the charters of Vladimir and Yaroslav. These or other features of these regional church charters were a natural result of the local conditions of the legal and economic life of the destinies and regions in which they appeared. Some of these letters must be recognized as unconditionally authentic, others have come to us in an updated and distorted form. The first include: 1) a charter of the Novgorod prince Svyatoslav Olgovich, published in 1137. It represents an agreement between the prince and Bishop Nifont on the replacement of church tithes in Novgorod with a certain annual princely salary to the bishop. The reason for such a replacement is indicated in the contract document itself. It says that the tithe often gave rise to quarrels between the prince and the bishop, since the size of the prince's annual income was not the same every year. 2) Charter of the Smolensk prince Rostislav Mstislavovich, issued by him in 1150, when the episcopal see was established in Smolensk. This charter, like the Charter of St. Vladimir, first of all, determines the means of maintaining the newly established bishopric, “what the bishop lives to do with his choir.” Such means are 1) tithes from princely tributes, 2) duties from church courts, and 3) inhabited and uninhabited lands. Then the “heavies of the bishopric” are calculated, that is, the cases under the jurisdiction of the bishop, but, unfortunately, the text of the charter here is extremely corrupted. But, generally speaking, the space of the episcopal court is defined in the Smolesnaya charter in accordance with the Church Charter of St. Vladimir, and this is because Rostislav Mstislavovich, at the establishment of the bishopric, was in the same position as St. Vladimir at the establishment of the first episcopal sees in Rus'. Two charters of the Novgorod prince Vsevolod Mstislavovich have come down to us in an inauthentic form from the 12th century. One has the form of a church charter given to the St. Sophia Cathedral and represents a rough alteration of the Charter of Vladimir, made no earlier than the end of the 15th or beginning of the 16th century. But there is one feature in her that can undoubtedly be attributed to the named prince. This is a decree on the transfer of cases of inheritance disputes to the jurisdiction of the bishop, assigned to the end of the charter, that is, strictly speaking, to the end of the text of the Vladimirov Charter. This postscript shows that in the time of Vsevolod (i.e. in the 12th century) in Novgorod, inheritance matters were decided by the prince, and not by the bishop. But Vsevolod saw the need to abandon this trial in favor of the bishop on the following occasion: one day the children of one father, but from four different mothers, came to him with a lawsuit about an inheritance. The prince could not decide whether they all came from a legal marriage and therefore whether they all had the same right to inherit from their father; On this occasion, he looked at the nomocanon, but did not find a suitable law here, and since the nomocanon was a church book, not always understandable to secular people, the prince submitted all disputes about inheritance to the bishop's court. The same prince is credited with the charter given to the church of St. John the Baptist on the flasks, which was built by him in memory of the birth of his son Ivan. This church, as stated in the charter, should be the parish church of the trading partnership, the “merchants of Ivansky”; This partnership was made up partly of “vulgar”, that is, old merchants who had previously traded in the square where the church was built, partly of new shareholders who were obliged to contribute 50 hryvnia of silver to the partnership. The collection of duties for the use of trade measures and weights stored in the church vestibule was assigned for the maintenance of the church; the amount of these duties was precisely indicated in the charter. Five elders were appointed to the church: three from the peasants and black people and two from the merchants. The latter were in charge of duties on weights and measures. The Novgorod “Ivanskoe” partnership survived the political independence of the Lord of Veliky Novgorod himself. This partnership is mentioned in one charter of John IV. All of the stated resolutions of Vsevolod’s charter could already be in its original text; but, of course, Vsevolod could not call himself “Grand Duke, autocrat, ruling over the entire Russian land,” as he is called at the beginning of the letter. In the continuation of the appanage-veche period, which was also the period of Mongol rule over the Russian land, our church received a very important source of its rights in the labels of the Mongol khans. This was the name given to the letters granted by khans to Russian metropolitans and other spiritual hierarchs. From the middle of the 13th century to the end of the 14th century, seven such labels have come down to us, but there were undoubtedly many more of them, since each metropolitan, upon entering the department, had to go to the Horde to receive a charter, or label, and, having received such a label, he or his successors had to again bother about confirming it or obtaining a new one, with each new khan. In relation to the national sources of Russian church law, these labels were nothing more than their confirmation and partly their dissemination. Direct indications of such a relationship between the labels and the previous sources of Russian church law are found in the labels themselves. Here the following general decrees are typically repeated: “let everyone submit and obey the metropolitan according to their first laws from the beginning, let no one interfere with church and monastic property: let the metropolitan know all this, or whomever he orders.” But the khans not only confirmed the existing rights of the Russian spiritual hierarchy, but also significantly expanded them; for example, they left it to the church authorities to judge their people in all matters, even in robbery and murder, which we do not find at all in the letters granted to the clergy of the appanage and great princes of the present period. In giving such extensive privileges to the Russian hierarchs, the khans were guided by a kind of political considerations. The basic rule of policy for all barbarian conquerors is that, without interfering in the internal affairs of the conquered land, they limit themselves only to collecting tribute from it as a sign of their dominance over it. The subordination of the Russian hierarchy to the rule of the khans was expressed in the fact that our metropolitans and bishops had to go to the horde for labels and for these labels give the khan and his wives and officials significant gifts. The khans were all the more willing to grant various rights to the metropolitans because they hoped to bind them to themselves and find their supporters in them. But did labels really serve as a source of church law? Did our hierarchs use labels as a means of protecting the church from any encroachment on its rights by both appanage and great princes? To the credit of our spiritual hierarchy, it must be said that, although it had such means of protecting its rights and privileges, it never actually used these means, that is, it did not complain to the khans about those who violated its rights, although cases of such violations often occurred. In general, about labels as sources of law, it should be noted that they served as a direct and effective means of protecting church rights from the Mongols themselves. Thus, we know from the chronicles that when the khan’s officials (baskaks) came to Russian soil to collect taxes, they did not include clergy and churchmen in general in the tax lists, since this was prohibited by labels. In relation to the Russian state authorities, labels had not so much legal as moral significance. This is precisely how the Moscow Council of 1503, mentioned by us, used labels for the first time in relation to the great princes, to which Grand Duke John III proposed to cede church and monastic estates to the treasury; The cathedral, giving a negative answer to this proposal, attached to its answer or report lists of all the seven khan labels mentioned by us and in its address to the Grand Duke said, among other things, the following: “look, pious sovereign: even the unfaithful kings (i.e., khans) did not dare to offend the church, how do you want to take away her church property?” The same argument was repeated by Metropolitan Macarius to Tsar John IV, who also wanted to take away church estates for the treasury, following the example of his grandfather. Finally, in the 17th century, Patriarch Nikon used labels in his objections to the establishment of a monastic order, which concentrated the management of church and monastic estates. General overview of the most important monuments of state legislation on church affairs belonging to the Moscow period of our history At the very beginning of the Moscow period of our history, we encounter a very significant fact in the history of Russian church law, namely the fact of formal confirmation by the Moscow Grand Duke of the old church statutes, which Kievan Rus attributed to the Grand Dukes Vladimir and Yaroslav. We find evidence of this fact in the contractual letter between Grand Duke Vasily Dmitrievich and Metropolitan Cyprian, drawn up in 1403. This fact is significant as an expression of the consciousness of the contracting parties that Moscow is the same center of political and church life for the entire Russian land as Kyiv was before, and that the Moscow Grand Dukes, as successors to the sovereign power that once belonged to St. Vladimir and Yaroslav should, so to speak, have their church statutes transferred to their names. This is the historical significance of the mentioned treaty document. It says: “I, Grand Duke Vasily Dmitrievich, of All Rus', sat with my father, Metropolitan Cyprian of Kyiv and All Rus', ruled according to the old days, as it is written about in the charter of my ancestors, the saints. Vladimir and his son Yaroslav, and let it be as it is written in these statutes, now copied from the “great old nomocanon.” But it is clear, however, that the three centuries that have passed since the times of Vladimir and Yaroslav have not been in vain for the church. Confirming in principle the old church statutes, the Grand Dukes of Moscow at the same time issue legislative acts, obviously aimed at limiting the previous rights and privileges enjoyed by spiritual hierarchs and church institutions, on the basis of the old church statutes and khan's labels. So the same Grand Duke Vasily Dmitrievich, a few months after the publication of the above confirmation letter, issued, in consultation with the same Metropolitan Cyprian, a new church charter, which, in comparison with the old charters and khan’s labels, is in many respects their abolition. So, instead of complete freedom of metropolitan people and villages from state taxes and duties, now the metropolitan is obliged: firstly, to pay tribute according to the princely quitrent letter in those years when the Grand Duke himself had to pay tribute to the horde; 2nd to bear yam duty; in 3, exhibit “dachas,” i.e., military people (the letter says: “When I, the Grand Duke, sit on a horse, then the metropolitan’s people must follow me under the metropolitan’s governor, but under the banner (banner) of me, the Grand Duke.”) Further, the judicial rights of the metropolitan are limited in the sense that the Grand Duke negotiates for himself the right to judge the clergy in the absence of the metropolitan, retains the exclusive right of trial over metropolitan governors, tithes and volosts. The charter also establishes the standard of taxes that should go to the metropolitan and his officials from parish churches and from the tax-paying clergy. Finally, in the last part of the letter, the question is resolved more precisely than before, who should be considered a person of the church and who is a princely person (the letter says: “the servants of mine and those of my given people, you, the Metropolitan, should not appoint as priests and deacons; and if any priest, even though he was registered in my service, wants to become a priest or deacon, then he is free to be appointed, and whoever the priest lives with his father and eats his father’s bread, he your metropolitan, and if the priest is separated from his father and eats his own bread, then he is mine for the Grand Duke.") Letters granted to bishops and monasteries The contractual document between Metropolitan Cyprian and Grand Duke Vasily Dmitrievich that we examined quite clearly shows the direction in which church law developed during the appanage-veche period of Mongol rule: it was a period of development of predominantly land-dominant patrimonial law of spiritual hierarchs and various church institutions, especially monasteries. The Metropolitan in the mentioned charter is, first of all, a spiritual landowner, a church prince, who agrees with the Moscow Grand Duke as an equal with an equal, has his own servants and even his own boyars and governors. The same should be said about some diocesan bishops, mainly Novgorod. As landowners, spiritual authorities and monasteries, the number of which increased enormously during the Mongol period, were endowed with a wide variety of benefits. According to the general content of the letters of grant, these benefits consisted of 1, the right to own real estate of all kinds and acquire them by legal means; 2, in the right to call peasants to their lands from other principalities, 3, in the right to use dues and duties from their villagers and income from their estates, 4, in the right of tarkhan, i.e., in the exemption of monastic peasants and villages from duties and government duties, 5, finally, in the right of trial over their peasants in all cases, excluding murder, red-handed theft and robbery. In particular, about the monasteries, it should also be noted that some of them, thanks to princely grants, became completely autonomous units, achieving complete independence not only from local civil authorities, but also from the local spiritual government. The patrimonial principle was so dominant in the legal life of the monasteries that their independence, as patrimonies, was communicated to the monastic community itself, i.e. the abbot and all the brethren, who, according to the church charter of Vladimir and Yaroslav, should have been subordinate to the local bishop. Now this dependence on the diocesan bishop was limited only to purely spiritual and religious matters, for example, bishops installed or ordained abbots in the monasteries of their diocese, as well as priests and deacons to churches in monastic patrimonial villages, had the right to consecrate churches and take certain taxes for this. In all other respects, the monasteries, by virtue of the so-called “non-judgmental” charters, were completely independent of the local diocesan bishops. The system of church law described by us, which was established on the grants of letters of appanage and great princes, during the Moscow period, the autocracy underwent, albeit slow, but decisive reform. True, the Moscow sovereigns continue to confirm the previous grants of letters to the clergy and issue new ones, but at the same time, little by little, they abolish the previous benefits granted to spiritual landowners, and subordinate to their control the management of monasteries and bishops' estates, limit the patrimonial court of bishops and monasteries, etc. The result of all private measures aimed only at individual church institutions was the establishment under Alexei Mikhailovich the famous Monastic Order, to which all spiritual landowners were subordinate. From here there was already one step towards the church reforms of Peter the Great. General overview and characteristics of the sources of Russian church law from the time of Peter V. to the present During the reign of Peter the Great, as is known, a new period of Russian history in general and in the history of Russian church law in particular begins. During this period, unlike previous times, state power is now the main factor in church legal formation. Church government itself takes the form of state government: instead of a single patriarch, there is a collegial body of the highest church government - the Synod, established, obviously, on the model of those colleges between which Peter distributed various branches of government. At the same time, the Synod becomes a body of state legislation on church affairs. As a result, the sources of church law now appear in new forms that were unknown in the previous period: in the form of state regulations and decrees on church affairs, the Highest approved reports of St. Synod, issued on the basis of existing legislation, the Highest approved opinions of the State Council, etc. All sources of the special current law of the Russian Orthodox Church belong to this period. Since these sources are very numerous, we will not consider them historically, but will make a general overview of them in connection with a review of all other sources of current church law. These sources are divided into three classes: 1st, those common to the Russian Church with all other churches (both Orthodox and non-Orthodox); 2, on the sources common to the Russian Church with other Orthodox churches (Greek, Slavic and Romanian), and, finally, 3, on the sources of the special right of only one Russian Church. Among the common sources of the Russian Church with all Christian churches are only the books of St. Scriptures. They contain the fundamental principles of positive law, since they reveal the concepts of the essence and purpose of the church. In nachaean church practice, the book of St. The Scriptures are used only in the Slavic translation, the right of publication and correction of which belongs to St. Synod. In the same way, in other (non-Orthodox) churches, only known authorized translations exist and are officially used, for example, in the Catholic - the so-called “Vulgate” - the Latin translation attributed to Blessed Jerome, in the Protestant - the translation of Luther, etc. Containing only a few legal Norms, St. Scripture, of course, can only in rare cases serve as a direct and immediate basis for resolving certain church-legal issues. Most often in definitions of St. The Synod contains, as the basis for these definitions, references to well-known passages of the Gospel, which speak of the dissolution of a marriage due to adultery of one of the spouses, the continuation or termination of a marriage when one of the spouses accepts Christianity, and the other remains in the same faith. There are examples of justification for the decrees and court decisions of St. Synod and on the Mosaic legislation. For example, the decree of St. Synod on January 19, 1870, which still serves as the main basis for deciding cases of marriages in kinship and property, is based mainly on the prohibition of marriage between relatives and in-laws, set out in the XVIII chapter of the Mosaic book “Leviticus”. But in general the books of St. The Scriptures are not a legislative code, which is why it is quite difficult to substantiate judicial and legislative decisions on these books, and we see few examples of such substantiation. The second category of sources of the current law of the Russian Church consists of sources common to the Russian Church with other churches of the Orthodox East. This includes: firstly, the canonical code of all Eastern churches, already known to us, the history of which we have traced from the very beginning to our time. As you know from the sketch of the fate of this code in Russia, it currently exists in our country in two editions: in the form of the old printed Helmsman, published under the patriarchs and then published several times on behalf of St. Synod, and in the form of a new “Book of Rules”, published since 1839 by St. Synod. But the publication of the “book of rules” cannot in any way be understood in the sense that it was the abolition of everything that was contained in the old Helmsman and that was not accepted into the new book of Rules: firstly, this is not directly expressed anywhere (in any legislative act), and secondly, the publication of the book of Rules was not undertaken with the aim of canceling the old Helmsman, but only to give a new, complete, more accurate and correct translation of the canonical sources of the church rights, which in the old Helmsman were set out in an abbreviated rather than full text and were not always translated correctly. Thus, the question of what in the old Helmsman still constitutes valid law and what already belongs to history must be resolved on other grounds, and not on the bare fact that color. After the publication of the “Book of Rules,” the Synod stopped publishing the old Helmsman. The question that interests us must be resolved based on, firstly, a comparison of both Russian editions of the Orthodox canonical code, and secondly, on the basis of an analysis of all those parts of the old Helmsman that we do not find in the new book of rules. Since the new book of rules contains the same thing that is contained in the first, or canonical part of the old Helmsman, i.e., the canonical system of Photius, only in a new and complete translation, it naturally follows that the first, canonical part of the Helmsman cannot have practical significance. As for the second part of the old Helmsman, from which nothing has been accepted into the new book of rules, here it is necessary to distinguish, firstly, sources or articles of purely ecclesiastical (in other words, canonical) content, relating to the internal affairs and relations of the church, although not having, in their origin, such importance as the sources contained in the Book of Rules. Such, for example, are many of the articles of the second part of the printed Kormcha, relating to marriages, monasticism, church and liturgical acts among others. The effect of some of these articles is formally confirmed in later laws, for example, according to Article 196 of the Charter of Spiritual Consistories, monks for their offenses against monastic discipline must be subject to penalties, among other things, on the basis of the rules of St. Basil the Great, set out in the second part of the Helmsman's book. Secondly, as for the Greco-Roman laws found in the second part of the printed Helmsman, these laws are of two kinds. One, in its content, does not concern the church at all, but relates exclusively to the sphere of worldly, secular law (state, civil, and criminal, etc.) Such, for example, is the law of division of military spoils, which was never in force in Rus', but only by tradition was prescribed in the general composition of the Helmsman and, according to the same tradition, was transferred to the printed Helmsman. Other Greco-Roman laws of the Helmsman are of mixed content (so to speak) ecclesiastical and civil. These are all the laws relating to marriages: the conditions of marriage, the form of its completion, the grounds for its termination, etc. Many of these Byzantine laws later passed into the current Code of our civil laws. These are the decisions of Volume X of the Code of Civil Laws, 1st, on the five-year unknown absence of one of the spouses as a basis or reason to seek a divorce for the other, 2ndly on divorce due to physical inability to marry and 3rdly, on the age of marriage. All these matters are now usually decided on the basis of the Code of Laws and the Charter of Spiritual Consistories, and not the Helmsman’s Book. But from here it would be hasty to conclude that all other laws of the same content, but not adopted into the Code, eo ipso lost their effect. Our legislator, when publishing the Code, did not set out to exhaust all the laws contained in the Helmsman, which until that time were current church laws. Even such articles of the Code, which contain precisely the content of Greco-Roman laws, do not always mean a complete abolition of these latter (Byzantine) laws in their original form. For example, according to Article 3, Part 1 of Volume X, it is prohibited for males to marry before the age of 18, and for females to be 16 years old from birth. But that this law is not a complete abolition of the Byzantine law contained in Chapter 48 of the Kormcha (in the Eclogue), which is allowed to marry: men are 15 and women are 13 years old, can be seen from articles 37 and 39 of the same Code of Civil Laws, which establishes the difference between church and civil marriage age, i.e. 1) the one that is defined by the Helmsman and 2) the one that is specified in Art. 3. Civil Code laws. And this difference has very important legal significance. If the marriage was concluded after the spouses reached church majority (15 and 13 years), but before civil age (18 and 16), then it remains in force; on the contrary, a marriage entered into before the bride or groom reaches the age of ecclesiastical majority is subject to annulment, unless it resulted in the wife becoming pregnant (Charter of the Spiritual Con. Art. 209, vol. X, part 2, art. 123.) In 3, in addition to the Greco-Roman laws we considered, contained in the second part of the helmsman’s book, there are also such laws, that is, the laws of the Byzantine emperors, but in their content they are purely canonical in nature, which is why they became, as it were, canons themselves, or leges canonisatae. It is clear that such laws cannot be considered repealed due to the fact that we do not find them either in our Code of Laws or in the new book of Rules. The civil legislator had no concern for such norms as purely ecclesiastical ones, and the ecclesiastical authorities can all the less look at these laws as having lost force, since in many respects they complement the book of Rules and are accepted in the Eastern Church with the same respect as the canons themselves. To prove that indeed such norms, which were not adopted either in the Code of Laws or in other Russian church statutes, have not lost their force, let us present the following example. One consistory, in the case of a priest who had entered into a second marriage, decided to deprive him of his surplice and the right to enter the altar, but St. The Synod canceled this decree, based on one article of the collection of John Scholasticus, known to us, in 87 chapters, extracted from the short stories of Justinian, according to which a cleric who entered into a second marriage is deprived of the right of promotion to higher church-hierarchical degrees, but does not bear any legal derogation in his previous title (Corr. Chapter 42, Article 48). Based on all that has been said, we have the right to draw the following general conclusion on the question that interests us: is the old Helmsman’s Book still in effect, despite the publication of the new Book of Rules? Firstly, the first part of the Helmsman, containing the canonical ones (translation of the old Synopsis with interpretations of Aristin), after the publication of the Book of Rules, has already lost its practical significance; secondly, all other laws and rules, contained mainly in the second part of the Helmsman’s Book and not directly repealed by the later Russian church law, do not lose their practical importance due to the fact that they were not adopted either into the book of Rules, or into the code of Laws, or into other specifically church legislation. The question of whether such laws of the Helmsman really remain in force is decided by their very nature: if they directly relate to the essence of any church institution and are therefore necessary additions to the book of Rules, the Code of Laws or other church statutes, then they must be recognized as valid. This is how modern church practice treats them. The second source of church law, common to the Russian Church, common to the Russian Church with other Orthodox churches, is: some liturgical (ritual) books, mainly the Charter (otherwise Typical), the Servant and the Trebnik. In particular, at the end of this last book (the Breviary) there is a rather extensive canonical collection called the Nomocanon or Law Ruler. It contains the rules. relating primarily to the discipline of church repentance. This collection is of very ancient origin. It was probably compiled at the end of the 15th century, that is, after the capture of Constantinople by the Turks. This is evident from the fact that the said canonical collection contains a rule prohibiting Greek Christians from inviting Turks to become godfathers; such a rule could only appear when both nationalities, Turkish and Greek, lived together, and the Turkish was dominant. Soon after its appearance in Greek, this Nomocanon was translated into Slavic or Serbian, and in this translation it was brought to Russia - to Kyiv, where it was printed in 1620 in the printing house of the Kiev-Pechersk Lavra in the form of a special book. In 1638, the same book came to Moscow (and at that time, it should be noted, Kyiv in church terms did not depend on the Moscow patriarchs) and with the blessing of the then Patriarch Joasaph of Moscow and All Rus', it was printed as an appendix to the Trebnik. So it is still published under the Trebnik. The main content of this Nomocanon, as noted above, is the rules concerning the discipline of church repentance; therefore, throughout the 17th and partly 18th centuries, this nomocanon served as the main guide or basis on which the verdicts of ecclesiastical courts were confirmed on bringing to church repentance those guilty of violating church laws. But along with these rules, there are several other important rules relating, for example, to marriage. About half of the last century in St. The Synod arose a question about the origin of this nomocanon and what authority the rules contained in it have, especially rule 211. In this rule, which is not found in other sources of canon law, a husband and wife are prohibited from being recipients at the font of the same baptized person; otherwise, they must stop marital cohabitation, since they have become spiritually related to each other. From here they drew the conclusion that the recipient and the recipient of the same baby cannot enter into marriage, but if they do, they must be divorced. In St. The Synod often received cases from dioceses regarding the divorce of such spouses, sometimes with surviving children, which raised the above question. On this issue, possible scientific research for that time was presented, which, however, did not lead to anything, so St. The Synod itself came to the conclusion that rule 211 of the nomocanon is “very dubious.” This review was repeated several times in the same form: “although according to Article 211 of the nomocanon, printed at the Trebnik, these spouses are subject to separation, but that point is very doubtful, especially because from whom it was written and in which years that year is not shown and is very unknown.” “Why should he leave the marriage in force?” Thus, we have one article in this nomocanon, which now cannot in any way be recognized as a norm of current law, but which was such under the patriarch, when such spouses were always divorced. As for all the other articles of the nomocanon in the Trebnik, we have no reason to doubt the practical importance of at least those of them that are cited in our legislative acts, for example, the Charter of Spirits. Consistory, etc. From various judicial and marriage laws of St. Of the Synod, we see that to this day, on this nomocanon, the Synod approves definitions about penances (public repentance) for various types of incest, about the impermissibility of marriages between half-brothers and sisters (children of a widower and widow who entered into a second marriage, remaining from the first marriage), about the non-celebration of marriages by monks, about the punishment of priests who officiate illegal marriages. Although this nomocanon is of Greek origin and, moreover, not particularly early, nevertheless, in the Greek church it is now, one might say, completely forgotten, with the exception of some rules included in the notes that accompany the text of the canonical sources contained in Pedámon. The Greek original of this nomocanon also remained unknown for a long time; it was opened for the first time by prof. Pavlov and published in 1872 along with a Slavic translation and the publisher’s comments in the Scientific Notes of Novorossiysk University and a separate book. The sources of the special law of the Russian Church are divided into codified and non-codified. Codified sources include: 1) Spiritual Regulations of Peter the Great. This is a legislative act of paramount importance, and not only of church, but also of state. From a historical point of view, the publication of the Regulations constitutes a sharp dividing line between the old and new Russian church law: in relation to the past, the Regulations are a legislative act that forever abolishes the validity of the Charters of Vladimir and Yaroslav; in relation to the further development of church law, this is the root and foundation on which the entire system of current Russian church law indirectly and directly rests. The author of the draft of the Spiritual Regulations, in the sense of a legislative project, was the famous Feofan Prokopovich, who served as the main instrument of Peter the Great in all his church reforms. Feofan wrote the regulations back in 1719. The Emperor first considered the project himself, and then transferred it to the Senate (established in 1711) for consideration in a conference with the highest spiritual authorities. Here the draft was read twice and in some places explained with new notes, then signed first by clergy, then by senators and, finally, by the Emperor himself. After this, the Regulations were sent to Moscow and other cities for signing by the spiritual authorities who were not present at the reading of the draft, and finally published on January 25, 1721. In its form and partly in its content, the Spiritual Regulations are not only a purely legislative act, but at the same time a literary monument. Like the famous Order of Catherine II, it is filled with general theoretical considerations, for example, about the superiority of collegial government over individual governance, about the superiority of the highest state power over spiritual power, it contains various projects, for example, about the establishment of academies, and often falls into the tone of satire. Such are, for example, passages about episcopal power, about episcopal visits, i.e., tours by bishops of their dioceses, about church preachers, about popular superstitions, etc. In general, the Spiritual Regulations set out in a strictly legislative form only the general rules of synodal administration, and only in this part of its content does it still retain its binding force: the establishment of the Synod instead of the patriarchate, the range of activities of the central church administration, the relationship of the Synod to the Highest Authority, the attitude of the regional church administration (diocesan) to the Synod - all this essentially remains in the same form, as defined by Peter in the Spiritual Regulations. But this same legislative act gives the Synod the right to supplement its Regulations with new rules, submitting them for the Highest approval. The oldest of these additions, published in 1722, are usually printed at the end of the Spiritual Regulations, in the form of an addition to it. These additions constitute an entire Charter on the Clergy, which defines the quality and responsibilities of the parish clergy (especially confessors), prohibits the appointment of church officials beyond the need, and introduces metric books; in the section on monks and monasteries, it is determined who and how to be tonsured a monk, the order of monastic life is regulated, etc. 2) Charter of Spiritual Consistories. It was published in 1814. Just as the Regulations are the basis for the central government of the Russian Church, so the Charter of Spiritual Consistories serves as the basis for diocesan government. Its main content is borrowed both from the “Rules of the Spiritual and Monastic Order,” which form an appendix to the Regulations, and from later decrees of the Synod. The Charter of the Spiritual Consistories, published in 1841, was then, due to the abolition of its articles, published again with the Highest permission in 1883. 3) Code of laws of the Russian Empire. It serves as a source of law for the Russian Church in all those cases that are not determined by special legalizations for the department of Orthodox religion contained in the Complete Collection of Laws, and for the most part are not included there. In the first edition of the Code of Laws (vol. 1, part 2, art. 102) the following note was made that laws relating to the Orthodox religion require a special Code; therefore, since they are not accepted in the general code, civil courts and other administrative institutions, in cases where they have any questions in relation to the spiritual department, for which there is no resolution in the articles of the Code, should be guided not by the code, but by the complete Collection of Laws. This note remains in effect to this day. In the Spiritual Regulations of Peter the Great, in the Charter of Spiritual Consistories and in the general Code of Laws of the Russian Empire, not all the rights of the Russian Orthodox Church are codified. A significant part of the legislative material related here, such as various state laws in the form of: the Highest commands and personal decrees for the department of Orthodox confession, the Highest approved decrees of St. Synod and reports of the Chief Prosecutor, etc. - all this mass of sources of our church law is scattered throughout the complete Collection of laws, and some of these laws were not even included in this Collection. True, recently (1868) under St. The Synod established a special editorial commission to publish a complete collection of decrees and orders on the department of Orthodox confession in chronological order, starting with the Spiritual Regulations of Peter the Great or, which is the same, from the era of the establishment of St. Synod. Unfortunately, this commission works so slowly that it has so far published only 7 volumes of its collection, which contain legalizations and orders for the first eleven years of the existence of St. Synod (to January 16, 1732) Part 2. System of church law Part 1. Church structure Chapter 1. Personal composition of the church society Methods of joining the church - The church includes all believers in Christ as the Redeemer of the world and the Founder of the kingdom of God on earth; but since the church is the highest, visible union of people, then to belong to it, faith alone, internal convictions alone, in agreement with the teachings of Christ and the church, are not enough. In order for an external connection to be established between individual believers, as between members of one religious union, an external expression of a common faith is necessary, a formal act is needed that would visibly establish the belonging of individuals to the church society and would serve as a way of joining the church. Canon law specifies two such methods. The first, which constitutes the fundamental and original basis of all the rights and all duties of individual members of the church society, is baptism, through which the title of member of the church society is acquired, or, which is the same, general church legal capacity. Thus, in the field of ecclesiastical law, baptism has the same meaning as birth in the field of civil law. Therefore, in our sources, precisely in the teachings of Christ himself, it is called a second or spiritual birth. But just as a person is born once, so he can be truly baptized only once. It was this last dogmatic position that served as the basis for the establishment of another derivative method of acquiring active church legal capacity, namely for those persons who received correct baptism, but in such a religious-Christian union, which historically separated from church unity and received the character of a church corporation, thanks to recognition by states. Such persons, i.e. those who have received correct baptism, although outside the unified church, are accepted into the Orthodox Church not through baptism (so everyone baptized is already potentially a member of the church), but through a formal renunciation of their previous religion, accompanied by special religious rites (Nik. T. 8–11; Trul. 95; Carth. 68; Vas. Vel. 1.) Both methods of joining the church, i.e., both baptism and the transition from a non-Orthodox religion to an Orthodox one, obviously presuppose the free and conscious will of the subject to join the church society. Therefore, regarding all people of age who are capable of self-determination in their actions, church canons make the question of joining the church dependent on personal will and conscious disposition, and this condition is assumed to be present in each specific case. On the contrary, persons with a damaged mind, with a suppressed will, are not allowed to baptism (Timothy rights. 2 and 4.) Even the sick, who cannot give an answer for themselves at baptism, are allowed to it only when, with their consent, other persons give testimony from them under their own guarantee (Carth. collection 54). The requirement of freedom and personal conviction as necessary conditions for acceptance into the church is not contradicted by the fact that it is now mandatory for Christian parents to baptize their children soon after their birth, as well as the fact, affirmed by positive law, that when non-Christian parents convert to the church, all their minor children follow them. The identity of such children in the sphere of law is generally presented to their parents, and the identity of children legally without parents is represented by other persons with the rights of parental authority. Parents, naturally, have an obligation, imposed on them by church canons, and in all confessional states - by state laws, to raise their children in the confession to which the parents themselves belong. In particular, our state laws strictly insist on the fulfillment of this obligation (see Code of Punishment, Art. 190). If parents neglect this duty in relation to their children, then in this case they are deprived of the rights of parental authority and guardianship is established over their children (Code 190). Various classes or states in ecclesiastical society In order for believers in Christ and the baptized to form one organic union with a constant and precise definition of the order of religious and social life, it is, of course, necessary to divide all members of the church into two classes: those who rule and those who are governed, those who lead and those who are led in religious Christian life. And indeed, at the basis of any church structure there is a jure divino division of church members into two classes: clergy, or hierarchy, and laity, or ordinary members of the church. Between these two classes of church society, a third state was historically formed in the Orthodox and Catholic churches: monasticism. So, in the personal composition of church society they differ: 1st, the clergy or hierarchy; in 2, monasticism and in 3, simple believers, or laity. Let's consider each of these states separately. 1. The state of the clergy or spiritual hierarchy. Ways to acquire hierarchical rank in the church Just as general ecclesiastical legal capacity or the rights of the state of the laity are given priority through baptism, so in order to obtain a hierarchical title in the church, a special act is established, also jure divino: ordinatio. Since acceptance into the hierarchy is accomplished through ordination, and therefore the conditions necessary for receiving ordination are at the same time the conditions for entry into the hierarchy, and since ordination with different degrees serves as the basis for different hierarchical rights, then in the legal system these and other conditions can be considered in one general connection, and the doctrine of ordination, as a method of entry into the hierarchy, should serve as an introduction to the doctrine of the structure of the church hierarchy, or church government. For law (and not for dogma), ordination is an external act of established church authority, through which a simple member of church society receives a special hierarchical character or, already placed on a certain hierarchical level, is elevated to another, higher one. According to the powers conveyed in ordination, there are three such degrees in the hierarchy in the Orthodox and Catholic churches: episcopal, presbyteral and deaconal. Bishops are the bearers of the same spiritual power that was vested in the apostles by Jesus Christ Himself. The authority of the episcopal rank also includes the very right of ordination. Presbyters differ from bishops in that they do not have the right to ordain, but through ordination receive only the right of religious teaching and the sanctification of believers through the sacraments and other sacred rites. Deacons, finally, are only official bodies under bishops and presbyters in one or another sphere of manifestation of their spiritual power. This division of hierarchy degrees actually relates to the purely religious or liturgical functions of church authority. At these three degrees, the actual spiritual, i.e., morally guiding and mysteriously sanctifying power of the church is manifested. As for external, purely governmental power, it is essentially connected with only one of these degrees - the episcopal one, from which the highest church administrative bodies (such as metropolitans, patriarchs) can develop, which do not have a specifically sacred character and therefore do not receive their administrative rights through ordination. The degree of presbyter and deacon is not associated with certain functions in the sphere of church government. They can only be delegates or official bodies of episcopal authority with various powers. Thus, in the science of church law, a distinction is established in the church hierarchy: 1st, in the order of degrees of ordination (hierarchia ordinis), which includes bishops, presbyters and deacons, and 2ndly, in the order of administration (hierarchia juris dictionis). This includes diocesan, i.e., ruling bishops, metropolitans, patriarchs, as well as priests with special rights of administrative power (in our country, for example, the protopresbyter of the army and navies, i.e., the head of the military clergy, and in dioceses - deans). The government hierarchy may even include deacons. Such, for example, are the chartophylaxes of the Eastern patriarchs, that is, the rulers of the patriarchal office. The lower ranks of the clergy, with which the priesthood is not connected and which therefore do not have a specific difference from the laity (psalmists, readers) are of purely service significance for one or another rank of the church hierarchy. So, ordination, as a method of admission to hierarchical degrees, refers only to the hierarchy of the first kind, invested with purely spiritual powers, which exclusively belongs to the character of the Divine institution and which in the episcopal degree constitutes the root and foundation for the ecclesiastical-administrative hierarchy (hierarchia iuris dictionis). Conditions for receiving and communicating consecration These conditions relate, 1st, to the person accepting ordination, 2nd, to the person performing this act, and 3rdly, to the act itself. 1. Conditions on the part of the person being ordained It goes without saying that ordination can only be performed on actual members of the church community who, through baptism correctly performed on them, have received general ecclesiastical legal capacity. Therefore, all those who are not baptized or baptized in a Christian society where baptism, from a general church point of view, is performed incorrectly, are not included in the circle of persons subject to our consideration. Further: female persons, according to the prescription expressed in the epistles of the Apostle Paul (1 Corinth. 14, 34; 1 Timothy 2, 12) are unconditionally excluded from the number of candidates for the degree of the hierarchy of the first (church-liturgical) order, the members of which are placed in their degrees through the act of ordination. But this does not mean that women are being eliminated from the church-administrative hierarchy. Thus, we know that in the ancient church there was a special class of female persons under the name of deaconesses, catechizers, etc. So at the present time in women's monasteries, government power is vested in female persons with the title of abbess, abbess, builder, etc. So, only active members of the church and, moreover, exclusively male persons can receive ordination for church-historical degrees. Church law requires from the person approaching consecration various spiritual and partly bodily or physical qualities, the absence of which is called irregularitas and constitutes an obstacle to receiving this act. According to the sources from which these obstacles arise, stemming from such a lack of a property determined by law, which cannot be blamed on a given person (irregularitas ex defectu), and on obstacles that have their source in the vicious will of the subject (irregularitas ex delictu). Obstacles of the first kind (irregularitas ex defectu) include: 1) Lack of age (defectus actatis). It goes without saying that those promoted to one or another church-hierarchical degree must be of such an age that one can expect maturity of mind, thoroughness in judgments and actions, and understanding of one’s duties. It is also clear that the age of the person being ordained is consistent with the very degree to which he is ordained. Thus, to enter the priesthood, a 30-year-old age is required, and a 25-year-old age to become a deacon (Neoc. 11, Carth. 22, Tr. 14). As for the age of persons ordained bishops, it was first precisely defined in the 123rd novel of Justinian, in which it was decreed that the ordained bishop should be at least 35 years old and only in exceptional cases not younger than 25. This definition was adopted in the Photius nomocanon (Title 1, chapter 23) and thus received canonical meaning (lex canonisata). The consequence of placement on one or another hierarchical degree before the age specified in the canons should be, according to the 15th rule of the Council of Trullo, defrocking. But both this and all the other rules we cited above have in mind the constant, ordinary order of appointing hierarchical persons, but exceptions can be allowed for special circumstances that do not fit the rules, for example, due to respect for the extraordinary spiritual merits of a person, due to the need to appoint to the ecclesiastical hierarchical rank persons who, although they have not reached canonical age, deserve it in comparison with others due to their personal qualities. In this regard, the apostles themselves did not attach unconditional significance to the age of the persons being ordained. Yes, app. Paul appointed Timothy, whom he himself called young, bishop of Ephesus (1 Tim. 4:12); and in church history there have been examples of the installation as bishops of even persons who are not 25 years of age. 2) Lack of certain bodily properties (defectus corporis) In this regard, the canons require that the person being ordained should not have such physical defects and deficiencies that would interfere with the performance of the very functions of church-hierarchical authority. Thus, the 78th apostolic canon eliminates the blind and deaf from episcopacy: “let there be no obstacle in church affairs.” According to the meaning of this general rule, questions about the armless and legless, who are overcome by epilepsy, should be resolved, although we do not find any special regulations about this in our canonical sources. However, Apostolic Canon 79 excludes from admission into the clergy the so-called possessed, that is, the mentally ill. But all other shortcomings that cannot interfere with priestly service (crooked eyes, lameness) are not recognized as incompatible with a hierarchical rank (apos. pr. 78 Nick 1). 3) Lack of general and special knowledge required for church service (defectus scientiae). Since one of the main goals of this ministry is religious teaching, it goes without saying that people who have not received any education cannot be promoted to church hierarchical degrees. The minimum education, of course, theological, required by church canons from candidates for the highest church degrees (bishops) is that these persons can read with understanding the books of St. Scriptures and church rules concerning their ministry (Laod. 12; 7 Om. 2). It is now customary for us to appoint as bishops persons who have completed a course in theological academies with an academic degree or who have completed a course in seminaries, but have supplemented their education with their own personal work. Priests, deacons and psalm-readers are appointed to persons who have completed a course in seminaries. 4) Lack of faith (defectus fidei). Church rules assume such a deficiency: a) in all converts, the so-called neophytes (1 Timothy 3:1; apostle 80; 1 Nik. 2); b) in such persons who converted to Christianity under any exceptional circumstances, raising doubts about the sincerity of their conversion, for example, if someone was baptized in a dangerous illness for fear of imminent death; all such persons are called clinics from the Greek word κλίνη, bed (Neo. 12); c) in all recent converts from any heresy (1 Nick. 12). 5) Lack of good fame or good name (defectus famae). Already up. Paul prescribed that those appointed as bishops and elders should enjoy good reputation not only among their own (Christians), but also among outsiders (pagans) (1 Timothy, chapter 1, art. 7). The conciliar canons also repeat (for example, Laod. 12, Apos. 80). According to their public reputation, church rules call all those whose lifestyle and occupations, from the point of view of modern public morality, are dishonest, unworthy of clergy, and since all our canons originated in the Greco-Roman Empire, it goes without saying that according to these canons, all those persons who were recognized as dishonest by Roman or Greco-Roman (Byzantine) law, for example, actors (Carth. 18, apos. 18), moneylenders (Grig. 6), keepers of gambling houses and brothels. 6) Lack of humanity (defectus perfectae lenitatis) The Church, having in mind the commandment of Christ and the apostles, which requires from ministers faith, peacefulness, quietness, and critical character, presupposes a lack of these qualities in all those persons who, either due to their duties, or due to some other circumstances, caused the death of their neighbors. Thus, church rule does not allow into the clergy soldiers who have been in war (Vas. Vel. 13), unwitting murderers (Vas. Vel. 43 and Grig. Niss. 5). Valsomon, in his commentary on these rules, gives several examples of persons expelled from the clergy for involuntary murder. 7) Lack of freedom (defectus libertatis). Service to the church must be exclusive, so that the clergy is not bound by any extraneous duties that would make it difficult or even impossible for him to fulfill his duty to the church. The canonical rules completely exclude from accepting slaves into the clergy without the consent of their masters for their dismissal (ap. 82) and further, people engaged in state or public service (ap. 81, 85; Khalk. 7). In accordance with these canons, our state laws allow ecclesiastical authorities to accept into the clergy persons from tax-paying states only upon dismissal from the society to which they belong, and persons in the public service upon dismissal from their superiors (Ust. Spiritual Conc. Art. 16 of the Holy Order of 1876, vol. 9, art. 365 and 366). 8) Lack or vice of the marriage union. Thus, church canons do not allow second marriages in the clergy; they specifically demand that the person being ordained not only be monogamous, but that his wife also be monogamous, in other words, that candidates for the ecclesiastical hierarchical degree be married to a girl, and not to a widow. 2) Persons married to public women, actresses and those divorced from their first husbands (ap. 18, Khalk. 3); 3) Persons in a mixed marriage, i.e. with a woman of a non-Christian or non-Orthodox confession (Carth. 45 and 30). All of these rules apply to candidates for the lower degrees of clergy, up to and including elders. For bishops, since the Council of Trullo (692), celibacy is mandatory (Rule 13). So in the eastern church; and in the Catholic Church, since the time of Pope Gregory VII, all clergy are obliged to celibate. Another category of canonical obstacles to obtaining ordination has its source in certain crimes or, in general, in such acts of a member of the church, which, if not from the point of view of criminal law, then from the point of view of canon law, should be recognized as crimes. These include: 1, falling away from the faith, not forced by torment (Apostle 62; Nick 10; Ankh 3); 2ndly, heresy, i.e. deviation from the dogmas accepted by the church, combined with the same persistent rejection of the teaching authority of the church (1 Nick 12, canon of Athanasius to Rufinian), 3rdly, emasculation of oneself or others, as an encroachment on the integrity of God’s creation, which is all beautiful, according to the expression of the book of Genesis (ap. 22-24, 1 Nick 1, Dvukr. 8); 4, all the so-called carnal sins, consisting of violation of the seventh commandment of the Law of God: fornication, adultery, bestiality, etc. (Ap. 61, Neoces. 9 and 10). Those guilty and convicted of all these crimes must be subjected to public church repentance according to church laws; hence the general position: whoever has once undergone public church repentance is removed from ordination to the clergy once and for all. Since not all of the obstacles to receiving holy orders that we have identified can be open and public, the church rules prescribe that candidates for church-hierarchical degrees be subjected to a preliminary test not only openly (1 Nik. 2; Theoph. Alex. 7), but also secretly, through confession to a confessor, which is performed before ordination (Neoc. 9; 1 Nik. 9) in a special form and by a special confessor. These confessors have the obligation to testify to the bishop that, according to confession, there was no canonical obstacle to the placement of a given person on the desired hierarchical degree. If it later turned out that the ordained one had vices that prevented his ordination, then, depending on the nature of these vices, church rules prescribe either to expel him from the priesthood, or to forever prohibit him from performing sacred functions (1 Ecum. 9 and 10; Neoc. 9). Testing of proteges in the knowledge necessary for their service in the church is carried out either by the bishop himself, or through a special examiner. Only persons who have completed a course of science in secondary or higher religious educational institutions are exempt from this test. In the first centuries of Christianity, the testing of candidates for church-hierarchical degrees took place publicly, in the presence of the entire church community (Theoph. Alexan. 7), and the satisfactory result of the test was expressed by a common exclamation: “ἄξιος” (worthy). A monument to this custom is the fact that even now, during ordination to church-hierarchical degrees, the same word ἄξιος is pronounced three times (the first time on behalf of all the laity, the second on behalf of the local clergy, the third on behalf of the hierarch performing the ordination). 2. Conditions for consecration required by the person performing this act The internal authority to perform ordination belongs only to bishops, since bishops are the successors of the spiritual authority that the apostles received from Christ as continuers of His work. But in the actual external manifestation of this authority, each bishop is conditioned by the following requirements of positive law: 1) The ordainer must be a bishop, or bishop, not only in rank, but also in power - in other words, he must be a ruling bishop, since ordination is a communication of certain rights to church authority. Therefore, in ancient times, the so-called chorebishops, that is, rural bishops, could ordain clergy only with the consent or on the instructions of the city or diocesan bishop (Ank. 13, Antioch. 10, VII Ecum. 14). Currently, the rules about these chorebishops are applied to suffragan bishops and retired bishops. 2) The diocesan bishop can teach ordination only to persons truly under his spiritual authority, i.e. only to persons who have domicilium in his diocese; and above all to the clergy of this diocese (Sard. 15, Carth. 65, 91 and 101). 3) A bishop can perform a valid ordination only within the boundaries of his diocese and only for the churches of this diocese (Apost. 35, II Om. 2, Ant. 13 and 22). 3. Conditions relating to the act of ordination itself Regarding the act of ordination itself, church rules require: firstly, that this act be performed publicly in the church in the presence of the people, who, according to ancient canons, were invited to testify about the one being ordained at his very ordination, as worthy of being accepted into the clergy (Theoph. Alec. 7); 2) that ordinations be performed in order of degrees from lowest to highest, so that no one is ordained directly to the highest degree, bypassing the lowest (so-called Ordinatio per saltum). The shortest period of stay in the lower degrees of clergy is not precisely defined in the canons. The rules require only such time, during which a cleric of one or another lower level would have time to prove his dignity and ability to occupy a higher one (Sard. 10, Dvukr. 17). But later church practice did not attach unconditional significance to this requirement, as is directly indicated in the seventeenth rule of Dvukr. cathedral And Balsamon, in his interpretation of this rule, expresses, on the basis of “an undescribed church custom, the proposition that “ordination to each degree is out of necessity (i.e. in cases of need) must be completed within 7 days.” Thirdly, ordinations must be performed in no other way than with the appointment of the person being ordained to a certain place, i.e. to a certain church, in which he must serve in his clergy. The so-called absolute ordinations, i.e. those who give only one clergy without a specific place of service in this rank are not allowed in our Orthodox Church and, in accordance with the exact meaning of the 6th rule of the Council of Chalcedon, are declared invalid. This prohibition is based on the view of the ancient church that the spiritual power received through ordination should remain constantly in a state of energy and be manifested in the active service of the ordained in the church to which he is appointed. On the contrary, in the Catholic Church these ordinationes absolutae have become a general rule in relation to the degrees of the clergy, i.e. to the presbytery and deaconship; in the same way, bishops in the Catholic Church are appointed without direct appointment to a specific diocese, but in relation to them the fiction is allowed that they are appointed bishops partibus infidelium - in dioceses that will eventually be formed in non-Christian countries. Fourthly, ordination to the same hierarchical degree, once correctly completed, cannot in any way be repeated another time (Ap. 68, Carth. 36 and 59); in a word, ordination is as unique as baptism. This means that the act of church-governmental authority, sealing the election and appointment of a minister of the church, is recognized as completely sufficient for its purpose, so that repeating it would mean either doubt about the validity of the act committed before, or doubt about the competence of the hierarch who performed this act. Thus, if the ordination was performed correctly, then repeating it again over the same person and to the same degree would only have the consequence that it would destroy the previous ordination and it would itself be destroyed by the previous one. General rights and obligations of members of the clergy, as a special class in the church and state Ordination imparts to those who have accepted this act a special character that distinguishes them from the laity. This difference consists of special rights and responsibilities common to all members of the clergy, as a special state in the church. Recognition of these special rights of the church state by the state depends, of course, on the position that the church occupies in a given state. It goes without saying that if a given civil society is Christian, then the state authorities in such a society cannot consider members of the clergy as other citizens; on the contrary, it must take into account their ecclesiastical position, their ecclesiastical rights and obligations. What are these rights and responsibilities? The special rights of the clergy in ecclesiastical and civil order are as follows: Firstly, personal integrity, protected by especially severe canonical and criminal penalties (privillium canonis). According to church rules, a layman, no matter who he is, who lays his hand on a bishop, even outside the church, is subject to extreme church punishment: anathema (const. in the Church of St. Sophia 3). In accordance with this, the Greco-Roman laws and our code of punishments in articles 236–270 consider a personal insult inflicted on a clergyman during the exercise of his duties as a qualified crime, that is, punishable to the highest degree in comparison with the same insult inflicted on a secular official during the exercise of his official duties. Secondly, the advantages of the clergy include a special privileged jurisdiction (privillegium fori). This privilege during the Middle Ages in all European states (and here in Russia) reached such a development that, on the one hand, did not flow from the very essence of the church, and on the other hand, violated the natural and inalienable rights of the state. The clergy, only because they were clergy, were recognized as subject to the exclusive jurisdiction of ecclesiastical authorities in all civil and criminal matters. Only in the case of a particularly serious crime, for which criminal punishment was determined in secular laws, was the offender first deprived of his clergy and then handed over to the hands of secular authorities for criminal punishment to be carried out on him. But at present, it is generally accepted as a rule to leave clergy to the court of their hierarchy only for misdemeanors and crimes against the duties of their rank, determined by church (and not state) laws. For example, if the cleric performed the act of baptism incorrectly, etc. etc., then he is subject to the court of his spiritual authority for this, because the secular court does not have a criterion to judge how deeply the church order has been violated here and how serious this crime is. Thirdly, freedom from personal and certain property obligations (privilegium immunitatis). The basis of this privilege is the view that the service of the church requires complete sacrifice of personal strength, and that therefore it would be unfair on the part of the Christian government to make demands on clergy that are incompatible with their ecclesiastical purpose. Due to this view, already the first Christian sovereign, Constantine the Great, freed the entire clergy not only from burdensome personal duties (such as guardianship, military service), but also from all extraordinary taxes and duties arising partly from the personal status of subjects, partly from the right of land ownership. For example, the clergy was freed from the obligation to feed the troops during the war and carry out the so-called munera sordida, which included, for example, fixing roads, bridges, cleaning sewers, etc. The clergy came with similar personal and property privileges in all medieval Christian states and here in Russia until Peter the Great. Currently, both privileges (personal and property) have been reduced to their fundamental minimum. Namely, the clergy personally are exempted only from such public and state duties that really turn out to be incompatible with the duties of their church title: this is precisely military service. It should be noted that in our country clergy of all not only Christian, but also non-Christian faiths enjoy freedom from this duty (see Military Regulations). In addition, clergy of the Orthodox faith are not included in the lists of jurors (Court. Constitution, part 3, article 85, paragraph 1). In terms of property, persons of clergy enjoy: 1st, freedom from all personal taxes and 2nd, the privilege that their houses, in which they themselves live, are exempt from housing duties (tenancy). Finally, in 4, privillegium honoris. In the ecclesiastical sphere, this privilege is expressed in the highest external position of the clergy, in the fact that in all church meetings it occupies first place before the laity, has the first right to vote, etc. In ordinary life, custom (but not a direct rule) instructs the laity to show their spiritual shepherds special external signs of respect, consisting of accepting a blessing from them and kissing the blessing hand. In the mutual relations of members of the clergy, this privillium honoris is determined by degree in the hierarchy, and between equals by the seniority of ordination (Carth. 97). Signs of respect from lower clergy to higher ones that are demeaning to personal dignity are contrary to the spirit of church-hierarchical relations and are sharply condemned in the Spiritual Regulations of Peter the Great. Here we read the following decree: “Every bishop would know the measure of his honor and would not think highly of it; True, being a bishop is a great thing, but the honor associated with it is not noble, since they are called servants in Scripture. And all this is being established in order to belittle this great, cruel glory of the bishops, so that their bishops, while they are healthy, would not be led by the arm and the brethren at their side would not bow down to them, and it is not the shepherds themselves who should seek moderate honor from their subordinates, but be content with what is given to them” (Reg. Part 2, paragraph 15). State laws (where, of course, the society and government are Christian) also provide clergy with various advantages of honor in the sphere of state law. This includes the recognition of the spiritual hierarchs as state dignitaries and, in general, the equation of church-hierarchical degrees with secular ranks. The special rights and advantages of church-hierarchical service also correspond to the special responsibilities of the clergy, as a special state in the church and state. We will not talk here about the official duties of the clergy, determined by the position of each clergyman in the church hierarchy, but only about the general duties of all clergy, that is, about those duties that follow from the very concept of the clergy as a special state in the church and civil society. Canonical legislation, naturally, surrounds the life, activities, behavior, even the external home environment of the clergy with strict discipline, which aims to protect the external dignity of the clergy and eliminate everything incompatible with the direct duties of the ministers of the church and everything that gives rise to temptation and lowers the moral authority of the spiritual hierarchy in the eyes of society. This goal is expressed in the regulations of canonical legislation: 1st, regarding the clothing and appearance of clergy. Clergymen are obliged to wear long clothes of a special cut and dark color, which they have learned from ancient times (tr. 27). Both pomp and slovenliness in this clothing are equally prohibited by church rules (7 Vs. 16). In this regard, our Spiritual Regulations instruct the bishops to ensure that the clergy subordinate to them “maintain their appearance, namely, that their outer attire, although poor, is clean and of the same dark color, and that they do not walk around bare-haired,” that is, with their heads uncovered. Secondly, this goal is revealed in the rules concerning the external behavior and occupation of clergy. Church rules prohibit clergy not only drunkenness and gambling (ap. 42, 43; Inst. Bla. 29 and 71), but also participation in all noisy public pleasures: dances, performances, masquerades, public games, etc. (Laod. 54; Tr. 24, 51, 62). Hunting, especially when associated with the shedding of animal blood, is also recognized as a matter not characteristic of persons of the sacred rank, since this rank is associated with the right to make a bloodless sacrifice. (Nomoc. under the Trebnik ch. 153). For the same reason, clergy are prohibited from practicing medicine, and in particular from performing surgical operations that require special medical education. This prohibition is motivated by the fact that a clergyman without a medical education, taking up the practice of medicine, with his lack of skill can cause the death of his patient (Nomoc. with Trebnik. Art. 102). In general, clergy are prohibited from all activities and trades that are incompatible with their direct official duties or that detract from the dignity of their rank. This includes, according to church rules and according to our state laws: all state and public positions and especially military service (ap. 6 and 81; Dicr. 11); c) obligations in someone’s affairs, namely a guarantee for someone. in civil and criminal matters (ap. 20) and guardianship and management of other people's property, unless called by the law to guardianship over members of one's family or close relatives, or, on behalf of the bishop, over orphans and widows in church charity (IV Ecum. 3, Carth. 19). Finally, c) usury (Laod. 4) and trade, especially wine (Trul. 9). Our state laws in all these respects completely follow the church canons, all of them are set out in volume 9, in articles starting from 379 to 381. Finally, in 3, it remains to consider the rules of canonical legislation regarding the treatment of clergy with persons of the other sex. Church rules prohibit clergy who are widowed or unmarried from having any women in their home, with the exception of their mother, sister, aunt, or such persons of the other sex who, by their age, seem to be completely not shameful (I Ecumen. 3, IV Ecumen. 5; VII Ecumen. 18, Vas. Great Canal. after Presbyter Gregory). Even cohabitation with legal wives convicted of adultery is prohibited for clergy: they are obliged either to divorce such wives, or, if they do not want a divorce, to leave the priesthood, since the vice of the wife is also communicated to the husband, who is “one flesh” with her (Neo-Caesar. 8); widowed priests and deacons are certainly prohibited from a second marriage, and unmarried priests and deacons are not allowed a first marriage; In general, spiritual rank serves as an absolute obstacle to marriage. Loss of clergy and its consequences The clergy, once conferred on a member of the church through the sacred act of ordination, recognized in the Orthodox and Catholic churches as a sacrament, by principle must be inextricably linked with the person who is invested with it (character indelebilis). But one Catholic Church strictly insists on this rule. True, she also recognizes punishments for clergy, consisting of their depositio and degradatio, but this does not mean that a clergyman deposed and deprived of his degree becomes a layman: potentially, he still remains a cleric, only he is forever deprived of the right to perform the functions inherent in this rank. On the contrary, our positive church law does not insist on this principle; it does not allow the resignation of the clergy upon request, or its deprivation by court for crimes that offend the holiness and dignity of the clergy. Both of these turn the cleric into a simple layman, making him a secular person. Let's consider one and the other method of losing clergy separately. a) Resignation (by request) The canonical rules do not allow the free transfer of clergy; on the contrary, they threaten extreme church punishment - anathema to those clergy who overthrow their rank arbitrarily or for some worldly calculations (Khalk. 7). This matter is judged so strictly because to overthrow one’s holy rank, once one has voluntarily accepted for lifelong service to the church, means to offend the church and God Himself, to forcibly dissolve the union connecting the clergy with the church and, moreover, produces a great temptation in Christian society, humiliating in its eyes the most sacred rank. And it’s remarkable that the church rules not only do not indicate, but do not seem to suggest at all any valid reasons for leaving the clergy. The canons only allow for the abandonment of church positions (retirement from service); but they do not allow one to renounce the rank itself. The Greco-Roman laws adopted in the nomocanons were also determined in accordance with this. Thus, according to the law of Justinian, persons who resigned their clergy were deprived of the rights in civil society that belonged to them by birth, turning into a taxable state. Emperor Leo the Philosopher went even further: strictly adhering to the canonical point of view on the indissolubility of the spiritual union of the cleric with the church, he ordered that those who relinquished their clergy should again submit to the authority of the church, but should turn into lower church ministers. These Greco-Roman laws were in effect in our country until the present century. But in 1831, the Highest approved synodal decree was passed, according to which, although it is forbidden to arbitrarily depose oneself from the priesthood and become a secular person, it is allowed in special cases and for good reasons to ask the spiritual authorities to resign from the priesthood. The most valid reason is the widowhood of a clergyman at a young age, since such a widower is prohibited from a second marriage while he is in the clergy. Proceedings on petitions for defrocking begin with the fact that the petitioner, within three months, is admonished through his confessor to abandon his intention; These admonitions are then repeated in the presence of the spiritual consistory in which the matter began. Removal of holy orders is permitted by the Holy Synod, and the consistory is obliged to inform the local provincial government about this in order to ensure that a person who has left the clergy does not pretend to be a clergyman. The main rite of defrocking is the so-called. the issued letter is torn in front of the eyes of the person who resigns from the priesthood; then his priestly clothes are removed. Anyone dismissed from the ecclesiastical department at his own request returns to his primitive state, that is, he enjoys only those rights that belong to him by birth. Persons who were previously deacons are accepted into the civil service no earlier than six years, and former priests no earlier than ten years after dismissal (Vol. 9, Art. 370). However, at present this is not strictly observed - usually such persons, at the special request of St. Synod before the Highest Authority, immediately upon resigning from the clergy, they are accepted into the civil service. c) Deprivation of clergy by court As a direct act of church-judicial power, defrocking is one of the canonical punishments to which clergy are subjected for vices, misdeeds and crimes contrary to the essence and duties of their title. Thus, deprivation of clergy (καθαίρεσις, depositio) is positively defined by church rules in the following cases: 1st, for incorrectly receiving this rank, through the so-called. “simony”, i.e. bribery (Apostle 29, 30; canonical message of Gennady and Tarasius of Patriarch Constantinople); 2, for violation of church regulations; when performing sacred rites, especially sacraments; for example, for performing baptism on persons known to be baptized (Apostle 47), for performing the Liturgy while drunk (Ust. Spiritual Const. 181); for beating someone in church during a service with a hand or an instrument (Apostle 66, Est. Spirit. Const. 179); for abusive words and indecent actions in church during services (Const. 180); in 3, for deviation into heresy and falling away from the Christian faith (Vas. Vel. 73); 4, for any violation of the seventh commandment “You shall not commit adultery”: whether it be adultery, fornication or other carnal sin (Apos. 25; Vas. Vel. 3, 32, 70); in the 5th, for murder, even involuntary or in a state of necessary defense (ap. 66, Vas. Vel. 55); in 6, for marriage after ordination, if someone was ordained in a state of widowhood or single (4 Om. 3 and 6); 7, in general, from the point of view of canon law, for those crimes for which the laity are subject to temporary excommunication from the church and public repentance (Vas. Vel. 51), and from the point of view of our criminal law, for those crimes for which the Code of Punishment for secular persons determines the deprivation of all rights of state or some personal rights and benefits with imprisonment in a fortress (Code of Punishment, Art. 22). Defrocking in the sense of canonical punishment, once correctly committed by the competent authority, has the following effect: 1st, it is determined once and for all, so that the holy dignity removed from someone for a crime cannot be returned to him again (Vas. Vel. pr. 3), 2), when defrocked, a person who is extremely guilty is at the same time deprived of his lower degrees, just as every higher degree includes all the previous lower ones; 3, if someone properly deposed from the clergy subsequently dared to commit any act for which a clergyman is authorized, then he is subject to anathema for this (Apostle 28), but 4, the deprivation of the priesthood itself is not accompanied by excommunication: this would be contrary to the apostolic rule, which says: “Do not avenge twice for one” (Apostle 25). According to our church laws, clergy who are defrocked for canonical (and not criminal) crimes are either left in the spiritual department, only in lower positions: sextons, sextons, church watchmen, or are completely excluded from the spiritual department and transferred to the disposal of provincial boards (Charter of Spirits. Cons. Art. 176, paragraphs 1 and 2) with a detailed explanation of the guilt for which they defrocked. Those who were in the clergy rank of nobles or honorary citizens, or received the dignity of nobility by orders, are left with the rights of the state belonging to them, but the orders are removed with the Highest permission, and the ranks received by such persons before entering the clergy rank are not returned. They are prohibited from entering and living in the capitals, as well as from joining the state or public service for noble and city elections. The first of these prohibitions remains in force for 7 years, and the last for former deacons - for 12 years, for former priests - for 20. But even then, the free choice of service is provided only to those who have the right to do so due to their condition or academic degrees received at the Theological Academy (Charter on the Presidious and Preventive Presidencies, Art. 213). Between the clergy and the laity, or ordinary members of church society, in our and the Catholic Church there is a special ecclesiastical class - monasticism. It is a product of the moral spirit of the Christian religion, arousing in some individuals the desire for the highest, ideal-moral perfection, which, according to the teachings of Christ, consists of complete renunciation of the goods of the world and selfless devotion to God (Ev. Matthew XIX v. 21 et seq.; XVI v. 24, etc.) The first monks were anchorites, i.e. hermits who spent a contemplative, ascetic life in forests and caves. But in the 4th century AD, the Egyptian ascetic St. Pachomius united all such hermits in one common dwelling, which he, under the name of Cenobia, built in an Egyptian village in Thebaid. Then such cenovia with the name of monasteries began to arise in other countries of the Christian world - first in the east, then in the west. In the east, monastic life was first regulated by St. Basil the Great, Bishop of Caesarea in Cappadocia, whose rules given to monasteries still form the unchangeable canon for Orthodox monasticism. In the West, the oldest and most authoritative legislator of monastic life was St. Benedict of Nurey (†543). Then, during the Middle Ages, many other monastic communities or orders arose in the West with more or less original statutes, which were based on some special church-social goal, for example, preaching Christianity to unbelievers (predicatores), educating youth (such as the Benedictines), fighting heretics (such as the Jesuits). But in our church there is no distinction between monks by order, since all eastern monks adhere to one charter, namely the charter given by Basil the Great. The essence of monastic life, according to the Rule of Basil the Great, is the observance of three religious vows pronounced upon entering monasticism: firstly, the vow of unconditional obedience to elders with renunciation of one’s own will; 2ndly, a meal of chastity, or virginity and 3rdly, a vow of non-covetousness, i.e. renunciation of all property. According to the degree of fulfillment of these vows, our monks are divided: 1st, into the so-called cassocks, i.e. those who received only a black monastic cassock, as a pledge of future vows of monasticism (Decree of the Holy Synod on June 21, 1804), 2ndly, into actual monks, i.e. who have already pronounced three established vows and received, at their tonsure, special clothes of black color, predominantly a black mantle, which is why such monks are also called manatean and in 3, finally, schema monks or schema monks, who are obliged to stricter vows, namely the vow of complete renunciation of the world and human society, which is why they are distinguished by some special clothes, which together are called the great schema, hence the name schemaniks. Distinguished from the laity by their vows and the ritual of life based on these vows, monasticism in itself is not considered to be the clergy; on the contrary, church canons directly distinguish monks from clergy and in many respects put them on the same line with the laity (for example, 4 Ecumenical 2; Tr. 81; 7 Ecumenical 9, 13, etc.) Only those monks in a strictly canonical sense should be counted among the clergy who have ordained, who have received ordination to one or another hierarchical degree. To serve in monastic churches, monks are usually ordained as priests and deacons, who, in contrast to lay or former clergy, are called: priests - hieromonks, and deacons - hierodeacons. Thus, monasticism does not constitute an obstacle to receiving holy orders in all its degrees. On the contrary, since the Council of Trullo, which for the first time legalized the celibacy of bishops in the East (Project 12), persons who have already previously accepted monasticism are predominantly ordained to this highest level of the church hierarchy. But if someone is ordained a bishop without accepting monasticism, then such a person in the rank of bishop can no longer accept monasticism, for in the words of the 2nd Canon of the Council of Constantinople in the Church of St. Sophia, “monastic vows contain the work of obedience and discipleship, and not teaching or commanding, which is what episcopacy is: monks should not shepherd others, but be the flock themselves.” From here the council quite logically draws the conclusion that if a bishop accepts monasticism, then he must retire from his see to a monastery to practice monastic life. But if monastic vows in themselves do not give monks the title of sacred or spiritual persons, that is, they do not give them any church-hierarchical rights obtained through ordination, then on the other hand one cannot deny the complete analogy between the clergy and monasticism in a formal sense: just as the clergy is appointed to the exclusive service of the church at various hierarchical levels, so monasticism has the goal of exclusive service to the religious idea. Therefore, the same canons that clearly distinguish ordinary monks (i.e., those who have not received ordination) from clergy, place them on a par with these latter in the same respect that they punish renunciation of monastic vows in the same way as willful dethronement (Chalc. 7). Our state laws, in view of this analogy between monasticism and the clergy, generally classify all monks who have taken full monastic vows as clergy and distinguish them from the latter only by a special epithet: black or monastic clergy (vol. 9 of the law, art. 399 et seq.) In addition, our laws divide this monastic clergy into two categories: 1) into spiritual authorities, which include all bishops, archimandrites, abbots, builders and abbess and abbess of women's monasteries and sacristans of the Moscow Synodal House and 2) simply the monastic brethren (9, 340). As spiritual persons, monks enjoy, according to our state laws, the same advantages that belong to all clergy in general (vol. IX, p. 352). Conditions for entering monasticism To enter monasticism, no special mental or moral qualities are required, similar to those that are recognized as necessary in candidates for church-hierarchical degrees; on the contrary, no previous way of life, even the most vicious one, can serve as an obstacle to entering monasticism (Tr. 43) and this is because monasticism in essence is a feat of constant repentance, and access to repentance, of course, should be open to every sinner. Only the following is required of those seeking monasticism: firstly, a certain age. Church canons allow even 10-year-old girls and boys to be admitted into the monastery for gradual preparation for monasticism (Tr. 40), and the age of 17 is prescribed for pronouncing the vows themselves (Vas. Vel. 18). But according to our state laws, those wishing to take monastic vows must be men no younger than 30, and women 40 years of age from birth (Vol. IX on the status of Art. 344). Secondly, a preliminary trial or test, which usually lasts three years, but can be shortened in the case of a serious illness or for persons known to be disposed towards monastic life (Two. Sob. 9). On this last basis, we exempt from temptation those who have completed a theological course in religious educational institutions and widowed priests and deacons, who therefore and the age required for acceptance into monastics is reduced to 25 years. (Decree of the Holy Synod of 1832, May 29, Vol. Collected Laws). 3, a free and relaxed desire to enter monasticism. Compulsion to take monastic vows is considered in our criminal laws as a crime qui generis (Code of Punishment, Art. 1586 and 1599). The vows of parents who condemn their young children to monasticism are also not respected, if the latter, upon reaching the appropriate age, do not wish it themselves (Spirit. Regulation of Peter the Great on monks, paragraph 9; vol. 9 on the status of art. 347, paragraph 2). Fourthly, freedom from other duties and relationships incompatible with monasticism is required, namely: a) it is forbidden to tonsure a husband from a living wife and vice versa, unless by mutual consent of the spouses to enter a monastery and, moreover, under the condition of childlessness, or when children no longer need parental care; but even in this case, spouses are allowed to take tonsure not before reaching the above-mentioned years (Vol. 9, Art. 347, 250). One must think that the rule establishing the above-mentioned difference in the age of a man and a woman entering monasticism does not apply to this case: if a husband who is at least 30 years old enters monasticism, then it would be strange to demand that the wife remain in the world until she is 40 years old. This legal requirement obviously applies only to unmarried women (widows and spinsters). c) It is forbidden to accept into monasticism persons burdened with houses and also on trial (Vol. 9, Article 34, paragraph 3) and, finally, c) persons in service without dismissal from their superiors, tax-paying persons - without dismissal from societies and subject departments (Article 345). The procedure for acceptance into monasticism Until the time of Peter the Great, the abbot or abbot of the monastery had the right to tonsure a monk. But, at the request of Peter the Great, by a synodal decree on March 3, 1725, this right was taken away not only from the abbots of the monasteries, but also from the diocesan bishops, and was granted exclusively to St. Synod, where all requests for monasticism were to be sent from dioceses. This was the case until 1865, when by a synodal decree (September 29) admission to monasticism was granted to diocesan bishops (Vol. 9 of the Holy Law, Art. 343). Anyone wishing to become a monk, according to current laws, submits a petition to the local bishop, indicating the monastery he wishes to enter and attaching documents certifying that there are no obstacles to the petitioner’s entry into monasticism (Article 345). If the bishop, for his part, does not find reasons for refusal, then he assigns the person seeking monasticism to a novitiate 3-year probation and at the same time notifies the public place through the consistory about the whole matter from which the documents provided to the newly appointed monk were issued to him (Article 346). After a three-year trial, the monastic tonsure itself is performed by the local abbot or archimandrite, i.e., the abbot of the monastery. Diocesan bishops are obliged to report annually to the Synod on the number of tonsured monks in the form of an appendix to the report on the state of the diocese (Const. Spiritual Cons. Art. 77) Monastic vows and the resulting derogation of personal, property and ecclesiastical rights (capitis deminutio) of monasticism From the content of the three monastic vows we have examined, various restrictions on the personal, property and even ecclesiastical rights of monasticism necessarily follow. These restrictions are as follows: 1) monks, while they are in this state, cannot marry (Nomok. under Trebnik 77, volume 10, part 1, article 2 and 37); 2) monks, according to their regulations, are forever prohibited from eating meat. 3) Monks cannot be the recipients of children from the baptismal font, since this would impose on them obligations incompatible with the vow of withdrawal from the world and worldly relations (Nom. at Req. 84). 4) Monks with holy orders, i.e., hieromonks and hierodeacons, are prohibited from serving in parish churches and correcting parish needs, and especially from performing marriages (ibid.). 5) Monks, according to the charter of Basil the Great and the cathedral rules, cannot have any personal property, so everything brought into the monastery and acquired in the monastery belongs not to them, but to the monastery (Corm. ch. 61, pr. 31); Dvukr 6) In accordance with this canonical requirement, our state laws (occupations) prescribe that those who enter monasticism from any rank dispose of all their property before tonsure, giving the family estate to the legal heirs, and disposing of acquired property at their own discretion; otherwise, both estates are turned over to the legal heirs free of charge by order of the local civil authorities (Vol. 9, Art. 354). Based on the same canons, our state laws do not recognize for monks either a testamentary right or the right to acquire any property by contract, or by inheritance, or by will (vol. 9, 354 and 363). However, according to our laws, not all monks are deprived of the right to have personal property. In this regard, the laws establish a distinction: a) between the so-called. spiritual (monastic) authorities and simple monastic brethren and b) between the monks of the so-called monasteries. non-dormitory and sociable. The monastic authorities not only have all kinds of movable property and legal heirs to it, but also the right, first granted to them by decree of February 21, 1766 (numbered 12377), to make a will about their movable and immovable property, except only for things belonging to the sacristy and used during worship (such as mitres, crosses, panagias, etc.), at least these things were arranged at their own expense: all these things should become the property of the church in which the deceased served (vol. 10–1, cent. 1025; Decree of July 3, 1836). In addition, the canonical principle of monastic non-covetousness, according to our laws, is not strictly adhered to in relation to ordinary monks of the so-called non-communal monasteries. Non-communal monasteries are all those that owned populated lands before 1764 and were assigned a special staff salary instead of these lands or estates selected for the treasury in that year. The monks of these monasteries have only a common table, or meal, from the monastery, and everyone acquires everything else for themselves through their own labor, with the help of income from monastic service and salaries from the treasury, distributed according to the states (Instruction of the monasteries, paragraph 15). These monasteries are allowed to build at their own expense or buy cells and other buildings within the monastery walls where this is allowed by the local monastic charter, but not otherwise than with the condition that they leave these cells and buildings after their death or leaving the monastery for the benefit of the monastery (vol. 9, 357). Further, ordinary monks of non-communal monasteries are not prohibited from contributing their monetary capital to credit institutions, but not under private conditions of obligation, so that in the event of the death of the depositors, these capitals will certainly turn into monastic property (vol. 9 about comp. 301 and 302). Finally, monks of non-consecrated monasteries are not completely deprived of the right to acquire by will, namely: they can acquire by will from bishops and other monastic authorities who have testamentary rights icons, panagias, pectoral crosses and books of spiritual or scientific content (note to Article 1025, Vol. 10, Part 1). As for cenobitic monasteries, the principle of monastic non-covetousness is strictly adhered to: here no one has anything of their own, everyone has everything in common and everything belongs to the monastery. Therefore, the abbots of cenobitic monasteries do not have testamentary rights (Vol. 10, Part 1, Art. 1187). 6) Clergymen who are tonsured into monasticism, if they have served a military or civil pension in the clergy department (for example, as teachers of the law or regimental priests), when tonsured as a monk they are deprived of this pension (vol. 9, 355). 7) Monks are prohibited from trading in any goods, except for the sale of their own handicrafts, and then only with the permission of their superiors and through selected elderly brethren (vol. 9, 358). 8) Monks cannot accept for savings either other people’s money or any things except books of religious content, otherwise everything they accept for safekeeping is taken to the monastic treasury (ibid 360) 9) Monks cannot interfere in any civil, public or church affairs; for example, they cannot be trustees, guardians, or confidants in matters not related to their monastery (Khalk. 3 and 4, vol. 9, 359). Internal structure of the monastic community The internal administrative structure of monasteries is based on the principle of unconditional obedience of the younger to the elder. At the head of the monastic community are chiefs or abbots with the title of builders, abbots and archimandrites. Their power over simple monks has the character of free paternal power (Instr. Monastic. Blessed. 312). Without the blessing of the abbot, none of the brethren can begin any business, even for the benefit of the monastery. In the most noble monasteries, namely in the Lavras, of which we have four (Trinity-Sergius, Alexander Nevskaya, Kiev-Pecherskaya and Pochaevskaya, the latter in the Volyn province), next to the abbot there is the right of an advisory vote on all monastic affairs, the so-called Anticipated Council, the members of which are elected from the oldest monastic brethren. As church institutions, monasteries with their abbots are under the authority of the local diocesan bishop, who appoints abbots here and oversees the monasteries through special deans (Khalk. 4). The only exception to this rule is the so-called. stauropegial monasteries, i.e. those that are under the direct supervision not of local bishops, but of the central spiritual authority (currently the Holy Synod). There are seven such monasteries in Russia: four of them are located in Moscow (Novo-Spassky, Simonov, Donskoy and Zaikonospassky) and one each in the following dioceses: Moscow - New Jerusalem, Arkhangelsk - Solovetsky and Spaso-Iakovlsky - in Yaroslavl. The abbots of cenobitic monasteries are elected by the local brethren from among themselves or from the monks of another also cenobitic monastery and are confirmed in their position by St. Synod; and the abbots of non-communal monasteries (if they are diocesan) are elected and approved by local bishops). Loss of monastic status and its consequences Monastic vows are made once and for all; therefore, the unauthorized resignation of monasticism constitutes, from a canonical point of view, as serious a crime as the overthrow of the clergy (Khalk. 7). According to Byzantine state laws, a monk who cast off his vows and robes was forcibly returned to the monastery, and for repeating the same crime he was directly subjected to taxation. According to our current laws (9, 349), it is, however, permissible to ask for the resignation of the monastic rank, as well as for the resignation of the clergy. But this request is fulfilled only after the petitioner has unsuccessfully exhorted him to keep his vows; this exhortation is carried out first through the monastery abbot and the elder brethren, then through special clergy appointed by the local bishop, and, finally, in the full presence of the local spiritual consistory. If the exhortations remain unsuccessful, then the consistory decides to abolish monasticism and this decision is carried out only with the permission of St. Synod (Const. Spirit. Cons. 88). When, therefore, a monastic person is allowed to relinquish his rank, then upon returning to the civil state he is granted the rights only by gender and origin, without returning the advantages, ranks and distinctions that he might have acquired through his previous service before becoming a monk (IX, 348). The property that he brought into the monastery is not returned to the person who leaves the monk (IX, 356). In addition, he is forever deprived of the right to be assigned to the civil service and cannot have residence or be assigned to any society in the province where he lived as a monk, and in both capitals during the past, during which he is subject to penance, that is, for 7 years (IX, 349, paragraphs 3 and 4). If a monk is deprived of his rank by a verdict of the ecclesiastical court for misdeeds and crimes that offend the monastic rank, then he is forever prohibited from entering the capital and from joining urban or rural societies in the province where he was a monk, for which he is required to sign a subscription under the fear that for violating it he will be exiled to Siberia for permanent residence without permission and enter service there. With the said subscription, he receives a place of residence without the right to wealth belonging to him by birth, at the direction of the civil authorities (IX, art. 349, clause 5 and art. 350). 3. The condition of the laity, or ordinary members of church society Rights and responsibilities of the laity in the church The laity form the third and largest estate in the church. We have already seen that this state is established by the acts of baptism for the unbaptized and by the formal act of joining the church for those properly baptized into another Christian denomination. Both acts, i.e. baptism and joining the church, impart to the subject ecclesiastical legal capacity or, so to speak, the general right of citizenship in the church union. But what exactly does this general ecclesiastical legal capacity consist of, what rights and responsibilities does belonging to the Christian Church impose on a person? We will not talk about those rights that are given in the sphere of civil or secular law on the basis of religion, we will talk only about purely ecclesiastical rights and obligations associated with the title of member of the church. First of all, it should be noted that in relation to those purely religious goods that are exclusively under the jurisdiction of the church, there is no difference between the laity and the spiritual hierarchs; these benefits are open to everyone and equally. The whole difference between laity and clergy in this purely religious sphere consists only in the fact that the hierarchy, according to Divine establishment, is the dispenser of the spiritual benefits of religion, and the laity are only partakers of them. However, even here, in this purely religious sphere, one important exception is allowed for the laity, namely: the absolute necessity of baptism for the children of Christian parents has given rise to a rule by virtue of which, in cases of extreme need, when there is no priest present, any layman, even a female person (for example, a midwife) can perform a valid baptism, if only this act is completed as it is performed in the church itself, that is, through threefold immersion with the pronouncement of a well-known formula at every dive. The act of baptism, thus completed, is no longer repeated (Nomok, under Req. 202). In general, the distinction between sacred and non-sacred persons appears with absolute necessity only in the sphere of public worship (baptism has the meaning of a private act): here the laity is prohibited not only from performing this or that part of public worship (Trul. 68), but also from entering inside the main part of the church, the altar, at least by the main gate leading to this part - the middle one, the so-called. royal (Trul 69); It is also forbidden to touch the throne and the sacred things and vessels that are on it. In other spheres of church life in the sphere of church teaching and administration, the relationship between the hierarchy and the laity, according to the principles of Orthodox church law, is defined in the following provisions: 1. the right of official teaching in the church belongs, of course, only to hierarchical persons (Trul. 64). But this does not mean that the laity do not have any voice in matters of faith, as the Catholic Church teaches; on the contrary, since religious faith is the property of all believers, and not just the hierarchy, it follows that the laity not only have the right, but also the obligation to reject teaching that does not agree with the dogmas of the church, even if it was preached by someone from the spiritual hierarchy. This idea is clearly expressed, 1st, in the 15th rule of the Double Council of Constantinople (861) and 2nd, in the letter of the Eastern Patriarchs, written in 1848 in response to Pope Pius IX to his proposal for union. This is what is said in this message: “with us, neither the patriarchs nor the councils could introduce anything new in the faith, because for us the guardian of the worship of God is the entire body of the church, i.e. the entire people, who always want to preserve their faith, unchanged and in agreement with the faith of their fathers, this was experienced by many of our former popes and patriarchs and kings who sought union with the Western Church and even accepted the union, but whose attempts to impose union on the entire people remained unsuccessful.” In general, the Orthodox or Eastern Church does not connect the rights of teaching with the priesthood in such a way that a layman cannot in any case have this right: secular persons with theological education have the right to teach the law of God in theological schools and can even preach sermons in churches with the permission of the diocesan authorities. 2. In matters of church administration, the participation of the laity can legitimately be found: a) in the right to elect candidates for all church-hierarchical positions; in the first centuries of Christianity, election to episcopate and other church degrees was usually a matter for the entire local church community (i.e., laity and clergy), but subsequently the right of such participation of the laity in the election of the spiritual hierarchy was limited; nevertheless, even now they have the right to recommend candidates for all church positions; c) in the management of church property: the representative of the laity in this regard, according to our church laws, is the church elder, elected by the parishioners from among themselves for three years; c) to promote church goals in general (such as charity, religious education, care of churches, poor parishioners, etc.), various societies can be formed from lay people under the name of brotherhoods, parish trustees, etc., which operate with more or less autonomy. In general, the participation of the worldly element in church affairs is the wider and more energetic, the more the society has initiative in the implementation of its own purely social interests. Having shown what the rights of the laity in the church union are, we will now define the indispensable duties of persons in this state, which have an ecclesiastical legal character and are necessary for the external declaration of belonging to the church society. These include: 1. the obligations for each member of the church contain the Christian faith, since it is maintained by the entire church, the obligation to this is given by everyone at baptism or before transitioning to the church from another Christian faith, in the first case, the baptized person or his recipient is required to read the symbol of faith; The same is required of those converting to Orthodoxy. Hence we can say that knowledge of the symbol of faith constitutes the necessary minimum of duties of a simple member of the church in relation to his religion; conscious deviation from this confession, combined with a persistent rejection of the teaching authority of the church, would constitute a crime of heresy. 2. the obligation of every member of the Orthodox Church to go to confession and communion at least once a year, imposed not only by church laws, but also by state laws in relation to Orthodox subjects; 3. the duty of Christian parents to baptize their children in the church of their religion and raise them in the same religion, and upon reaching the age specified in church laws (seven years old) to bring them to confession and communion; this obligation is also imposed by state laws (vol. 14 on the previous and prest. articles 23–28). All these duties are not only moral, but also legal in nature, since their fulfillment is necessary as external proof of belonging to church society. Loss of ecclesiastical legal capacity General ecclesiastical legal capacity, like any other, is terminated, 1st, by death, 2nd, by apostasy from the church to another Christian denomination, and 3rdly, by church anathema. It should be noted that the last two types of loss of ecclesiastical legal capacity do not have absolute significance: both those who voluntarily fell away from the church, and those who were rejected or anathematized by the church itself for any serious crimes against the law of God, in case of repentance, are again accepted into the church and, moreover, without repeating baptism over them, but only after fulfilling the church penance imposed on them. It goes without saying that a change of religion from a church point of view is a serious crime, therefore in church law there can be no question of any formal act that would serve as a way to actually leave the church and move to another religion. Such an act can only be established by a state that is indifferent to the church. But in confessional states, such as Russian, changing religion is prohibited by state laws. Our criminal law looks at the change of Orthodox religion from a completely canonical point of view, seeing this as one of the most serious crimes against faith. However, only those who seduce Orthodox Christians into another religion are subject to criminal punishment, and not the seduced themselves: the latter are considered only as erring. Therefore, only measures are taken regarding such persons that are aimed at bringing them to repentance, that is, reunification with the church, and, on the other hand, to remove from their influence those under their authority. Thus, all those who have fallen away from Orthodoxy are placed at the disposal of the spiritual authorities for admonition and, if they persist, they are imprisoned in a monastery (especially the famous Spaso-Evfimiev), where they can remain for the rest of their lives if they do not convert to Orthodoxy again. Chapter 2. Church government (hierarchia jurisdictionis) Governmental power in the church, as we have already noted, is associated with the highest degree of hierarchy in the order of ordination - the episcopal. Bishops are the successors of the spiritual power that Christ vested in his apostles and which consists of threefold authority: the right of religious teaching, the right to perform religious acts or sacred rites necessary to impart to believers the gifts of Divine grace, and, finally, the right to govern the community of believers. But just as the apostles received this threefold authority from Christ not separately, but all together - ... - and all in equal measure, so the fullness of church power lies only in the entire episcopate, which, thus, constitutes one highest degree of the universal church hierarchy and above which rises only the invisible head of the church - its Divine Founder Jesus Christ. From this it naturally follows that all bishops are equally authorized by the entire church. But this equality of bishops and their actual participation in the governance of the entire church is manifested only at ecumenical councils, i.e. at extraordinary representations of the entire church hierarchy. The usual form of church government is that the entire territory of the church is divided into several separate or local churches, governed by a certain part of the ecumenical episcopate, and these local or private churches, in turn, are divided into a certain number of dioceses, entrusted to individual bishops. This division of the one universal Church of Christ into several separate local churches is a necessary result of the difference between the peoples that make up its body and differ from each other in language and national character and the structure of their social life. Already on the very birthday of the church, on the first Christian holiday of Pentecost, the necessity of dividing the spiritual kingdom of Christ into several organically connected parts was indicated from above. The apostles received the miraculous gift of speaking in different languages, and each of them carried the preaching of the Gospel to the people whose language became his own. Education of local people, i.e. national churches ended by the end of the first century of the Christian era. Each such church received from its founder-apostle its own national hierarchy in the person of bishops, who were obliged to govern their church together. For this, of course, it was necessary to establish one highest administrative body, to which individual bishops would be subordinate in matters of governing the entire church. And now it’s 34 ap. the rule prescribes that the bishops of each nation (ἐκάστον ἔθνους) know the first among them (and the first were usually recognized as the bishops of those cities that served as stations for the apostles of their missionary activity) and recognize him as their head and should not do anything beyond their authority without his knowledge, but the same rule continues, and this leader should not do anything without everyone else knows. If a given national and generally local church constantly received its entire hierarchy from itself, and not from another church, then it became and was recognized as autocephalous, i.e. independent, independent from any other church. Thus, the highest governmental power in each local autocephalous church belongs to the eldest of its bishops, acting constantly in union with the rest of the bishops, in other words, the council, or the entire hierarchy of a given church with the primacy bishop at the head, who can be called metropolitan, exarch, patriarch, etc. The minimum bishops necessary for the formation and continuation of the hierarchy of a local church should be three, i.e. exactly as many as The canons require the ordination of a bishop in the event of a vacancy in the episcopal see (ap. 1). From everything that has been said about the composition of the church government in each local autocephalous church, it is clear that this composition must necessarily include two elements: the general church and the local. The general church consists of bishops, as successors and continuers of apostolic power, and the local may consist of various central government bodies, either individual (bishops with supreme administrative power) or collegial (these are temporary or permanent councils of bishops of a given autocephalous church). Let us move on to consider both elements within the governmental church hierarchy (hierarchia jurisdictionis). Procedure for the election and installation of bishops A bishop or diocesan bishop is a member of the church hierarchy whose management is entrusted to a certain part of a given autocephalous church, called a diocese or, in Western terminology, a diocese. Within the diocese, the bishop acts with the authority that belongs to him, as the successor to the apostolic authority. He receives this power from the entire episcopate of a given autocephalous church or from that church-governmental body that legitimately represents the entire local church hierarchy. The procedure for election and installation of vacant episcopal sees according to the ancient canons, depicting the actual church orders of the Byzantine Empire, was as follows. In the city where it was necessary to install a bishop, all the bishops of a given church district gathered, at the invitation of the chief of them, the metropolitan. Those who could not come to the election had to send special letters to the Metropolitan expressing their consent to the decision of those gathered (I Om. 4; Antioch. 19, VII Om. 3). The election itself took place in the presence of the entire clergy and church community of a given city. They were given the right to present their candidates and testify to their merits. The council tested these candidates and, although it might not approve of the people's choice, it could not appoint a bishop who was objectionable to the church community: “nullus invitis detur ipiscopus” - this is the rule that the ancient church invariably adhered to. However, from the 4th century (from the era of recognition of the church by the state), the indicated participation of the people in the election of bishops was limited in favor of the highest ecclesiastical and secular government. Thus, already the Council of Laodicea at the end of the 4th century, having confirmed in one of its rules (12) that bishops should be elected by the court of metropolitans with neighboring bishops, then directly excluded the crowd from participation in this matter (ὅξλους, pr. 13). But the elimination of the crowd from participation in this matter did not mean the elimination of the secular element in general from participation in the selection of bishops. In the most important cities of the Byzantine Empire, especially in the capitals, the election of bishops was carried out with the consent and often on the direct orders of the emperor. However, church councils in their decrees more than once repeated that the election of a bishop made exclusively and directly by secular authority, in addition to or with spiritual coercion, is invalid (Ap. 30, VII Ecumenical 3). In provincial cities, only the noblest citizens and local city authorities participated in the election of bishops instead of the entire people and especially instead of the mob. This was decreed in the 137th novella of Emperor Justinian, which was adopted into the Greek church nomocanon (interpretation of Balsalmon on Chapter 23 of the 1st title of the nomocanon) and was in effect in the Byzantine Empire until its fall. The approval of the elected bishops belonged to the metropolitans, who, together with their council, carried out their ordination. Those elected as metropolitans received approval and ordination from the patriarch, the patriarchs were elected by their synod, and the approval of the synodal election was the business of the emperors themselves. In our country, according to the Spiritual Regulations of Peter the Great, all bishops are elected by St. Synod in such a way that the Synod elects three candidates and submits a list of them to the discretion of the Sovereign, who usually elects the one who is in first place. From those elected to the episcopacy, our church rules require the following: 1st; confession of faith, and, 2, an oath promise to observe church traditions, canons of councils and church fathers, protect the peace of the church, govern one’s flock in the spirit of evangelical meekness and show obedience to the highest spiritual authority in the church (i.e., currently the Holy Synod). The form of this oath, pronounced by Russian bishops before their ordination, was published under Peter the Great in 1716. It is compiled, generally speaking, on the model of the Greek episcopal oath, but with various deviations from this model and with additions in the spirit of the church reforms of Peter the Great. These projects, so to speak “Petrine’s,” must be specified precisely, since they are not in the form of the episcopal oath taken in other Orthodox churches: 1) not to anathematize anyone and not to excommunicate anyone for any personal reasons; 2) deal with those who have fallen away from the church meekly, peacefully and prudently; 3) keep the monks in all the strictness of the laws laid down for them; 4) do not build churches throughout the diocese beyond need, and also do not appoint clergy beyond need; 5) dead bodies that have not been formally examined should not be passed off as holy relics; 6) those feigning rage and cliques should not only be punished with spiritual measures, but also handed over to civil authorities; 7) do not allow fictitious miracles from icons, wells, etc. and 8) do not interfere in any worldly affairs. In addition to these points, to the same oath promise there is also a general state oath of loyal service to the Autocratic government and obedience to all its laws. Regarding the ordination of bishops itself, the basic apostolic rule is observed, that this ordination should be performed by a council of bishops, at least three and in no case less than two (Ap. 1). The ordination of bishops performed by one bishop, even with the highest governmental authority (for example, the patriarch) is recognized as insignificant and invalid. The basis of this rule is that, since all bishops are equal in rights of spiritual power, then one bishop, of course, cannot ordain another, and an equal cannot ordain an equal; and since ordination is an act of supreme power, it can be validly performed only by a council, which constitutes the highest church-governmental body in relation to an individual bishop. Further, a person ordained as a bishop can no longer be relegated to a lower church-hierarchical level (for example. priest) even for any canonical guilt, for in the latter case he should be deprived of the priesthood, and the 4th Ecumenical Council in its 29th canon calls the demotion of a bishop to the ranks of presbyters without guilt “sacrilege” (ἱεροσυλία). Zonar’s expression perfectly explains this: “unjust deprivation of the bishopric is a censure of it; and the one guilty of this censure is not any sacred thing, but nothing greater and more important than the sanctifier himself. Contents of episcopal authority The bishop, within the boundaries of his diocese, acts with the threefold power that belongs to him as the successor of the apostles. Thus, he is, firstly, the main teacher of the faith within his diocese. In the first centuries of Christianity, when the boundaries of a diocese were usually limited to one city and its villages, the right of public preaching in church meetings belonged exclusively to bishops. Now, especially in the Russian land, where the boundaries of the diocese are very extensive, the bishop is only obliged, according to church rules, to personally preach in the church as often as possible and to take care that the gospel preaching in the churches of his diocese does not cease (ap. 58; Tr. 19). In general, he is obliged to oversee the religious education of the people in his diocese. Therefore, all special theological and spiritual educational institutions in the diocese are subordinate to him, namely: theological schools, seminaries and academies, and he also has supreme control over the teaching of the Law of God in all secular educational institutions; finally, all parochial schools are subordinate to the diocesan bishop: the opening and closing of these schools, the confirmation and dismissal of teachers of the law, teachers, etc. depend on the bishop; To discuss issues regarding parochial schools in each diocese, the bishop has under his command a diocesan school council of clergy and secular persons devoted to the cause of public education and closely familiar with the life and spiritual needs of the population. Finally, the bishop has the responsibility to take all measures within his power against religious errors arising in the diocese, calling on secular authorities for help, if necessary. 2. The bishop is the high priest of his diocese (pontifex). He has the power to perform all religious and liturgical acts and only custom prohibits bishops, like monks, from performing marriages. Some sacred rites or religious acts can only be performed by bishops, and not by ordinary priests, which is why they are called pontificalia. This includes: a) ordination to priestly and clergy degrees, b) consecration of newly created churches or, at least, antimensions for them with relics (VII Ecum. 7 at the end); c) consecration of St. myrrh for the celebration of anointing (Carth. 6) and d) the right to permit public penitents. 3. The bishop is the chief ruler of church affairs in the entire diocese. Appointment to all church positions and dismissal from these positions depends on him. He has jurisdiction over the entire Orthodox population of the diocese in matters of marriage and other matters related to the spiritual department. This general dependence of the population of the diocese in spiritual and marital matters on the bishop is very energetically expressed in the Spiritual Regulations, where we read: “be aware that everyone of any rank is subject in spiritual matters to the judgment of the Bishop in whose diocese he resides, as long as he remains in it.” (Spirit. Reg. part 2, paragraph 18). But all the most important church matters for the diocese (such as the opening of new parishes and the abolition of old ones, the establishment of new monasteries, some cases of divorce, etc.) the bishop decides not only with his own authority, but is obliged, according to current laws, to submit for decision to the highest authority in a given autocephalous church (in our case, the Holy Synod). Differences of the episcopal rank In accordance with the high importance of their rank and service in the church, bishops have various distinctions and advantages both in the church itself and in the state. The ecclesiastical distinctions (insignia) of the episcopal rank include: 1. The pastoral staff, or staff - a symbol of spiritual power over the flock; 2; the miter or crown worn by them according to the model of the high priests of the Old Testament; 3) the so-called omophorion, something in the form of a scarf worn on the shoulders and always made of sheep wool, although covered with gilt or silver brocade: the omophorion served as a symbol of that lost sheep, which the Good Shepherd, having found in the mountains, placed on his ramen (shoulders) and brought into his flock; 4) a special sacred image worn on the chest and called “panagia”; 5) a pulpit, or throne, standing in the altar opposite the altar (throne) on the so-called high place, i.e. on the eastern side of the altar; 6) an image of an eagle soaring over the city, placed at the feet of the bishop as a sign of spiritual superiority over his flock; 7) raising his name in all churches of the diocese during divine services. The canonical title of bishops, used by outsiders when addressing them, is “Right Reverend”, “High Eminence”, “Archpastor”, “Vladyka”, and they themselves sign: by the grace of God NN humble bishop, archbishop, metropolitan such and such (they are called by the main diocesan city and one of the district ones, for example, Metropolitan of Moscow and Kolomna). In addition, Christian governments provide bishops, as the highest spiritual dignitaries, with various insignia in secular society. So we have applied the state table of ranks to the church hierarchy and all bishops are placed in the first three classes. They have also been awarded, since the time of Emperor Paul I, the highest orders, with the exception of only those received from the Kingdom of Poland (they are not given two Catholic orders: St. Stanislaus and the Good Eagle). Limits on episcopal power Since all bishops, according to the rules of spiritual authority, are completely equal to each other, it follows that each bishop within the boundaries of his diocese acts exclusively with his spiritual authority. From here follow the canonical prohibitions for bishops: to preach in a foreign diocese (VI Ecumenical 20), to ordain clergy without the consent of the local bishop, or to ordain a foreign cleric in one’s own diocese without dismissal from his bishop (Ank. 13; Sard. 15), to appropriate parishes belonging to another diocese (Chalc. 17), or to do anything whatsoever. orders outside the boundaries of his diocese (Eph. 8, Antioch. 3). On the other hand, since individual dioceses headed by bishops are only organic parts of one autocephalous church, then, according to the requirement of order in the whole church body, the following limitations of episcopal power in diocesan administration necessarily follow: 1. each bishop is obliged to recognize in his diocese the validity of acts and orders made by another bishop in his diocese, thus, for example, no diocesan bishop can accept into church communion persons excommunicated by another bishop, or allow clergy who are prohibited from officiating by their bishop (Apos. 18:32, Antioch. 6). 2) without the permission of the highest church authority, he cannot move to another diocese (Ap. 14, 35; 1 Ecumenical 13, etc.), nor even transfer the see from one city of his diocese to another (Carth. 82), nor leave the diocese for a long time (Carth. 32), nor voluntarily renounce control and retire (Apost. 81 and can. last 3 all., help at the end of his rules). As a sign of their dependence on the bodies of the highest ecclesiastical authority, bishops are obliged to exalt the name of this ecclesiastical authority, in our case St. Synod, with all the services they perform, just as the name of the patriarchs was exalted before, and in the Greek Church it is still exalted (Duke 14). In matters of prevention and abuse of episcopal power, we have made it a rule that bishops should not do anything important without first seeking the permission of the saint. Synod. Officials and institutions of diocesan administration a) Parishes and parish clergy The power of the diocesan bishop is so vast in its content (and in our case, in its scope) that it necessarily requires various auxiliary bodies for the management of the diocese. The assistants of the diocesan bishop, as teacher and high priest, are parish priests. They stand at the head of an ecclesiastical community, called a parish. This is the name of the basic ecclesiastical units from which dioceses are composed and which have as their center a local church, or church, just as the center of a diocese is the bishop's cathedral. Parish priests are delegates of the spiritual authority of the bishop, who are entrusted with parishes with their churches and population to perform liturgical acts here and, in general, for the religious and Christian edification of parishioners (cura animarum). The visible sign and formal act of this delegation is the so-called charter, which is given by the bishop, signed by him, to each newly ordained priest with the exact designation of the parish church entrusted to him and with a brief statement of the duties of his ministry under this church. The local dean must read this letter in the parish church where the newly ordained priest is assigned, and thus induct him into office. Then this letter is stored in the church archive or in the sacristy, and after the death of the priest it is sent to the spiritual consistory, torn (so that it does not end up with schismatics of the clerical persuasion). The spiritual power of a priest in a parish is just as exclusive as that of a bishop in a diocese, so that apart from him, no outside priest has the right to perform any requests or liturgical acts here, nor should parishioners turn to a neighboring priest for these requests. Only in case of need (for example, if there was a need to bid farewell to a sick person close to death, or to urgently baptize a baby in danger for his life, and the local priest was not present), neighboring parish priests do not have the right to refuse to perform the service. A priest who has baptized an infant of another parish is obliged to write down this requirement in the register of his church, and to issue a written certificate to the persons for whom the service was performed as to the date and number under which the requirement is recorded in the register, and this certificate is delivered by the parishioners to their clergy (Const. Spirit. Cons. Art. 97, 98 Instr. Blagoch. §2, 41). The limits of our parishes were established for the most part historically, and not by administrative orders; changing these limits is not allowed not only to parishioners, but also to the diocesan bishops themselves, since this would lead to the disorder of the parishes and confusion in church acts (Ust. Spiritual Cons. 97). To establish new parishes and abolish existing ones, diocesan authorities must seek the permission of St. Synod (Constitution Con. 92). The work of the priest, as a parish shepherd, is shared by the lower clergy, who together with him make up the church clergy. The lower members of the clergy have a share not only in the performance of public church services, but also in the management of all the affairs of the parish church. In particular, their participation is necessary in fulfilling the requirements that are recorded in the registers of parishes, therefore the correct and correct maintenance of metrics lies with the common and indivisible responsibility of all members of the clergy, and not just one priest (Vol. 10, Art. 1571). Likewise, in the disposal of church property and other affairs of the church, which are the responsibility of the entire clergy, deacons and clerics have the right to cast their vote and for incorrect dispositions are subject to responsibility on an equal basis with the priest (John Bl. 40 and 43). The priest, as the rector of the church, is the closest superior over the other members of the clergy. The latter are obliged to obey him and cannot leave without knowledge anywhere further than 25 miles of their arrival (Instr. Blag. 31). The priest can even reprimand them in private or in front of witnesses, and fine the clergy with prostrations in the church, write down all cases of their disobedience and malfunctions in service in a special notebook issued by the dean and show it to the latter during visits (Inst. Blag. 25 and 27). The number of members of the parish clergy, which has existed for a long time or determined by a special decree, is called staff (Ust. Spirit. Cons. 72). Supernumerary appointments of clergy and clergy to parish churches are prohibited by church laws (Ust. Spirit. Cons. 71). The usual composition of the clergy consists of one priest, a deacon and two clerics with the rank of psalm-reader and sexton. This was the case in most parish churches in the dioceses until 1869. But in this year, in order to improve the material life of our parish clergy, the staff of parish churches was introduced in most dioceses with the assignment of salaries from the treasury to only two members of the clergy: the priest and the psalm-reader. Since the staff salary, due to the state of the state treasury, could not be assigned to the clergy of all churches even for two clergy members, it turned out to be necessary to carry out this measure for this purpose, to significantly reduce the number of parish churches into independent and affiliated ones. It is clear that this measure was met very unsympathetically not only by the clergy, but also by the people. Therefore, in 1885, by the highest resolution approved on February 16, St. Synod, the described measure was canceled, and the diocesan bishops were given, at the request of the parishioners, to restore the abolished parishes so that the clergy of the restored parishes with less than 100 male souls consisted of a priest and a psalm-reader, as was the case in the states of 1869, and in parishes with more than 100 souls of a priest, a deacon and a psalm-reader. To assist the bishop, as the diocesan ruler, we have the following officials and institutions: 1. deans, 2. spiritual consistories and 3. vicar bishops. The deans serve as organs of the bishop's church-police power; in the old days they were called priestly elders, whose duties were defined in the Council Code of 1551 (in Stoglav), then in a special instruction of 1699 issued by Patriarch Adrian. Adrian's instructions were corrected by Moscow Metropolitan Platon in 1775 and in this edition are published on behalf of St. Synod until now. According to the general rule, the dean is elected directly by the diocesan bishop (Ust. Spirit. Cons. 63). True, during the reign of Alexander II there was an attempt to leave the choice of dean to the clergy themselves, but now they turned to the old order (Ust. Spirit. Cons. 67). The dean's supervision is entrusted with 10 to 15 churches with their clergy, which constitutes the dean's district - currently the first administrative division of the diocese. 5 If the dean is in charge of more than 15 churches and, moreover, at a great distance from one another, then he is given an assistant. The dean is obliged to travel around his district twice a year and report to the bishop every six months about the state of the churches entrusted to him (Instr. Blag. 47:45). The authority of the dean extends not only to the clergy of the churches in his district, but also to the parishioners of these churches. Regarding the members of the clergy, the Instruction instructs the dean to observe that the clergy behave in accordance with the dignity of their title, to fulfill their duties unfailingly, especially in performing divine services and services, in disposing of church property and in maintaining church acts, especially metric books. The dean must immediately report any irregularities in one respect or another to the bishop (Ins. Bl. 7, 11 and 12). For minor offenses in office, the dean has the power to reprimand the priests himself, and to fine deacons and clergy by bowing in the church (Instr. Bl. 49). At the end of the year, the dean presents to the bishop the so-called clergy reports about the churches, clergy and parishes of his district with a note on the behavior and serviceability of each member of the clergy (Const. Spirit. Cons. 87). Regarding the parishioners of churches in his district, the dean has not only church-police power, but also prosecutorial power. So, in the event of the appearance in any parish of false teachers, bigots, cliques, instigators of superstitious actions at chapels and wells, the dean is obliged to first take measures to admonish the erring, and if these measures are unsuccessful, let the prosecutor's supervision know about these phenomena in people's life. To supervise the monastic clergy in dioceses, special deans of monasteries are appointed. They are elected from the monastery abbots by the bishops themselves. Depending on the number and distance of monasteries, a diocese may have one or more monastic deans. The main subjects of supervision of these deans are monastic worship and housekeeping. The supervision of women's monasteries is either entrusted to the dean of the men's monasteries, or, if there is convenience, an overseer of the deanery is elected from among the abbess. The instructions to deans of monasteries were drawn up in accordance with the instructions to deans of parish churches. For the administration of the entire diocese, our bishops have auxiliary institutions known as Spiritual Consistories. The ancient canonical rules require that every bishop, without prior consultation with his presbytery, that is, with the college of senior priests in the city, not appoint clergy, do not dispose of church property (Carth. 42, Khalk. 26) and not decide court cases (Khalk. 9). In various forms and under different names, this presbytery constantly existed both throughout the Eastern and in particular in the Russian Church. The current name of the Spiritual Consistory was given to all collegial institutions for diocesan administration under Elizabeth Petrovna (Decree of July 9, 1744), and the current Charter of the Spiritual Consistory was published on March 27, 1741 and came out in a second edition in 1883. According to this charter, the Consistory is a public office through which, under the direct supervision of the diocesan bishop, administration and spiritual court are carried out in each diocese; Its function is thus both judicial and administrative. Together with its bishop, the Consistory is under the jurisdiction of St. Synod and from it receives decrees on current affairs (Ust. Spirit. Cons. art. 2). The presence of a consistory is made up of 5, 6, 7 or more members, depending on the number of clergy and Orthodox population in a given diocese. Tskhlen consistories are elected from archimandrites, abbots, monks, archpriests and priests who deserve special trust for their education and conscientiousness, and are confirmed in their position, upon the proposal of the bishop, St. By the Synod, they are dismissed in the same manner (Ust. Spirit. Cons. 280). However, the diocesan bishop is given the right to remove members of the consistory from attending a case in which the member himself is involved or from which the defendant is legally removed, and the diocesan bishop can also remove a member of the consistory who has been held accountable for any important charge before the end of the case against him (Const. Spirit. Cons. 281, paragraphs 1 and 2). To conduct business, the consistory has an office determined by a special staff under the command of a secretary, who is determined by the Synod, at the proposal of the chief prosecutor (283–284). This secretary, being under the closest command of the diocesan bishop, is at the same time under the direct supervision of the synodal chief prosecutor, as the guardian of the execution of laws in the spiritual department, and is obliged to carry out all his instructions (285). In terms of external structure, the presence of a consistory is akin to provincial government offices (Article 288). Only regarding the time of presence, it has some features, namely: 1. consistory members, in accordance with their priestly duties, gather in presence only on the first five days of the week, and on Saturdays only for special needs; 2) they are not present at all in the first and last week and every Friday of Lent, then from December 24 to 29 and from January 4 to 9 inclusive, on Wednesdays of Lent there is a meeting only after mass (Articles 291 and 292). But the time of work of the consistory office is determined by the general laws and requirements of the affairs themselves (Article 293). The activities of the consistory, as a public office, extend to all matters of the diocesan administration and court; it draws up preliminary decisions on these matters and submits its protocols for approval by the diocesan bishop, who himself is not obliged to be present in the consistory. If the bishop disagrees with the opinion of the consistory, the members, having reviewed all the circumstances of the case again, may remain with their opinion, but this opinion in itself does not change the bishop’s resolution, which is carried out (Art. D Con. 329:330). Finally, to assist the diocesan bishops in all types of power belonging to them, they are also given persons with the rank of bishop, the so-called vicar bishops. Already in the ancient church we meet, along with city or diocesan bishops, rural bishops, who were called “chorebishops” (ἐπίσκοπος τῆς χώρας). They were under the authority of the city bishop and, with his consent, could ordain priests and other clergy to rural churches (Ant. 10; Vas. Vel. 89). But when the Council of Laodicea, in its 57th canon, prohibited the installation of bishops in insignificant villages or cities, the title of chorebishops began to be lost and, finally, completely disappeared. Following ancient examples and at the same time preserving the conciliar rule prohibiting the installation of bishops in small towns and villages, the Russian Church gives the oldest diocesan bishops (metropolitans of Moscow, Novgorod and Kyiv), as well as those bishops whose dioceses are too extensive - vicars. The title of vicar bishop began to be used only from the time of Peter the Great, but the proposal for their establishment was made at the Great Moscow Council of 1667. The first vicar was given in 1708 to the Bishop of Novgorod with the title of Bishop of Korel and Ladoga. Then, according to the institution of St. Synod in 1721, it was proposed to give vicars to all bishops present in the Synod. This project, however, was soon abandoned: Only during the reign of Alexander II was the need to establish vicars recognized in most of our dioceses, many of which are much larger in area than provinces. Vicars are usually titled after one of the district cities of the diocese. They have the right to produce priests in their district, and on behalf of the diocesan bishop, priests and deacons. They are not supposed to have either special cathedrals, states, or consistories (decreed on April 13, 1793). In the absence of the diocesan bishop or in the event of his death, until a new one is appointed, the vicar enters into the full administration of his office. Office of Military, Court and Embassy Clergy We have special classes of clergy that stand outside the dioceses, that is, they do not belong to the diocesan clergy: these are the military and court clergy. Military clergy have appeared in our country since the time of Peter the Great. Under Peter, it was allocated to a special class only during the war, when the position of field chief priest was established to supervise the clergy serving in the army. His duties and rights were set out in Article 29. Warrior. Charter (March 30, 1716), and then in special instructions (August 28, 1797). As for peacetime, until the end of the last century, the military clergy was under the authority of the diocesan bishops of those dioceses in which the troops were stationed. Diocesan bishops, on the proposal of regimental commanders, identified and dismissed regimental priests, tried them for misconduct and crimes against office and deanery. But under Paul I, a special administration of the military clergy was established under the chief priest. Then, in 1816, under Alexander I, the clergy of the army regiments were expelled from the department of chief priest of the army and navy and subordinated to the department of a special, newly established chief priest of the General Staff and Guard, the latter also included the title of royal confessor. In 1858, chief priests were renamed chief priests. Both of these chief priests were, until 1886, permanent members of the presence of St. Synod, but at present they are not present in the Synod, and the head of all military clergy is now a spiritual dignitary bearing the title of Protopresbyter of the Army and Navy. The title of royal confessor is reserved only for the priest who manages the court clergy; he bears the title of protopresbyter of the Moscow Annunciation Cathedral, which was a palace church in the Moscow period of our history. Both of these presbyters, according to their administrative rights, are placed along with the diocesan bishops (Decree of February 6, 1853); in other words, in relation to the subordinate clergy, they are the highest authority in all church affairs and, depending only directly on the Synod, have direct relations with it. They elect, move and dismiss priests and, in general, all the clergy of the royal and court churches, supervise them through special deans, but it goes without saying that these two priests, who have the rights of diocesan bishops, cannot, however, as those bearing only presbyteral rank, ordain to priestly degrees in the churches under their jurisdiction, but are obliged to represent the persons they have chosen for ordination diocesan bishops. Military and court priests can perform spiritual services only for persons who are in the same department as them, but cannot perform these services in the parishes of diocesan churches. Therefore, the registry books of the churches of the military and court departments are presented to the clergy of the churches of this department by the chief priest, from whose office registry certificates are also issued to the persons of the said departments. Outside the diocesan administration are churches abroad and the clergy serving under them - however, only those churches and only those foreign clergy serving at these churches where there are so-called foreign missions, namely in Jerusalem, China and Japan. These churches and the clergy serving under them are directly dependent on the Synod. As for the clergy serving at the embassy churches in Europe, they are under the jurisdiction of the St. Petersburg diocesan authorities. Priests appointed to foreign churches usually receive, upon their departure to these churches, golden pectoral crosses from the Imperial Cabinet, which are given to them as a reward if they serve in their position for at least seven years, otherwise these crosses are returned again to the Imperial Cabinet (Decree of May 1, 1820 in the Pol. Assembly. laws). While serving abroad, our former clergy are allowed to cut their hair and, when unofficially appearing in public places, wear a Vet dress, but not wear pectoral crosses. The salaries of foreign clergy, Supremely approved in 1811, are included in the estimates of the Ministry of Foreign Affairs. Chapter 3. Supreme governing bodies in local autocephalous churches Each local autocephalous church, as a special whole, must have known bodies of its unity, through which it would: 1. have constant relations with other autocephalous churches that form one universal church with it, and 2. demonstrate the unity of the administrative principle within its own boundaries. Such bodies are: 1. bishops with the highest administrative authority and 2. councils of bishops, temporary and permanent. 1. Bishops with highest administrative power Bishops with the highest administrative power have different titles, which correspond to different degrees of administrative power. The most ancient and common of these names is “metropolitan”. This name was originally adopted by the bishops of the main cities of the Greco-Roman Empire, from where Christianity usually spread throughout the provinces. It is clear that the Christian communities, or churches, which originated as colonies from these metropolises, had a constant attraction to them and were in a certain dependence on them. As a result of this, the bishop of the main city of the province, or the metropolitan, received certain administrative rights over bishops in provincial cities. The power of the metropolitan over the provincial bishops consisted of: 1, in the fact that he convened them to councils to discuss general church affairs in his area and himself presided over the council (Ant. 16 and 20, Khalk. 19); 2, approved those elected to vacant episcopal sees (1 Om. 4, 6; Antioch. 9); 3, accepted complaints against subordinate bishops and ordered a council trial over them (Chalc. 9, Ant. 14, Carth. 28); 4, had the right to survey the dioceses of subordinate bishops (Carth. 63); 5, generally controlled and approved with his consent all the most important orders of his suffragan bishops (Apos. 34; Antioch. 9). But the power of the metropolitan was limited by the fact that, in the affairs of his entire region, he could not decide anything individually without the consent of the council of regional bishops (Apos. 34; Ant. 9); 2, he himself was appointed and judged by the council of his bishops (III Om. 1; Sard. 6); 3, could act in the diocese (in other words, in the city) of the bishop subordinate to him only as a ruler or administrator, but not as a bishop: he could neither perform the liturgy here, without the consent of the local bishop, nor ordain, nor preach, nor generally perform any pontificalia. The institution of the metropolitanate and the power of the metropolitan, determined now by the rules we have considered, have been preserved to this day in their original form only in six autocephalous churches of the Orthodox East: 1, in the church of the Romanian kingdom; the metropolitan department is located in Iasi; 2, in the church of the Serbian Kingdom, pulpit - in Belgrade; 3, in the Serbian regions belonging to Austria; 4, in the Principality of Tskhernogorsk, 5, on the island of Cyprus and 6, in the church of the Greek kingdom. Within the four eastern patriarchates, metropolitans for the most part do not have subordinate bishops (suffragans). At present, the title of metropolitan is only an honorary title, belonging to three diocesan bishops: Kyiv, St. Petersburg and Moscow. Already under the first Christian emperor, Constantine the Great, as a result of the administrative division of the empire into prefectures, dioceses and dioceses, the bishops of those cities in which the administration of prefectures and dioceses were concentrated rose in power over the bishops of the main cities of the diocese (i.e. over the former metropolitans). The 1st Council of Nicaea, in its sixth canon, recognized precisely this kind of supreme authority over some dioceses and their metropolitans for the bishops of the three main cities of the empire: Rome, Alexandria (in Egypt) and Antioch (in Syria). The same council gave the bishop of Jerusalem (Elia) as the cradle of Christianity, preferentially before the local metropolitan (Caesarea in Palestine): The 1st Constantinople, second Ecumenical Council (381) granted an even greater advantage of honor to the bishop of the new capital of the empire - Constantinople, placing him on the basis of honor (πρεσβεία τῆς τιμῆς), in first place after the Roman bishop (pr. 3). But these advantages of honor for both named hierarchs (i.e. Jerusalem and Constantinople) little by little turned into advantages of power over ordinary metropolitans. Thus, the Council of Chalcedon (451) subordinated all Palestinian metropolitans with their suffragans to the Bishop of Jerusalem, and gave three eastern dioceses (Asiatic, Pontic and Arakian (pr. 28)) to the supreme administration of Constantinople. In theory, all these five spiritual rulers of the Christian world were recognized as equal to each other. But in reality this was far from the case. The Roman bishops, who distinguished themselves from the four eastern hierarchs of equal rights with them by the title of popes, already in the 3rd century expressed claims to dominance over the entire church, asserting these claims on the authority of the founder of the Roman Church, Apostle. Peter, who allegedly differed from the other apostles by special powers of spiritual authority. Likewise, the Bishop of Constantinople, thanks to the political significance of his city, received some special advantages over the other three Eastern hierarchs who bore the same title as them - patriarchs. As if as a sign of these advantages, the bishops of the new capital already at the end of the 6th century added the epithet “ecumenical” (οἰκουμενικός) to their title. Two main advantages distinguished them from other patriarchs: 1. they had the right to accept appeals against the verdicts of metropolitan councils from other patriarchates (Khalk. 9); 2. they were intermediaries between the emperor and other patriarchs, so that the latter, coming to Constantinople on the affairs of their churches, could present themselves to the emperor only after a preliminary report from the “ecumenical” patriarch. In the 7th and 8th centuries, when the Patriarchates of Alexandria, Antioch and Jerusalem fell under Muslim rule, the Patriarch of Constantinople remained, one might say, the only spiritual head of the entire Christian East. He retained this significance even after the fall of the Byzantine Empire, that is, after the capture of Constantinople by the Turks in 1453. The conqueror of Constantinople, Sultan Muhammad 2, recognized the then Patriarch Gennady Scholarius as the head of all “paradises,” that is, Christian subjects of the Turkish Empire, and, moreover, the head not only in religious terms, but partly in civil terms. Other patriarchs retained only the pompous title without any meaning corresponding to it. During the current century, the limits of the jurisdiction of the Patriarch of Constantinople have narrowed significantly due to the formation of several autocephalous churches from different parts of his patriarchate: the Church of the Hellenic Kingdom, the Slavic Church, the Moldovan-Volachian Church (in the Romanian Kingdom) and finally two Orthodox churches within Austria: Serbian and Romanian. But over all other Orthodox subjects of the Turkish Empire, the Patriarch of Constantinople still retained his former power almost without any restrictions. The election of the Patriarch of Constantinople belongs to: 1, the Synod located under it (we will talk about it later) and 2, the people's assembly. The participation of the people in electing their spiritual head is necessary already because the patriarch is given power over his Orthodox subjects, not only religious, but also civil. The approval or "investiture" of the chosen patriarch rests with the Sultan. As for the other three patriarchs, in ecclesiastical terms they remain independent from the Patriarch of Constantinople. Each of them has its own Synod and official staff, but not nearly as numerous as those under the Patriarch of Constantinople. The main officials of the official staff under the patriarch are the following: 1. the great housekeeper, whose meaning is clear from the name itself; 2. the great sacellarium, under whose jurisdiction are all the monasteries of the patriarchate; 3. the great chartophylax is the chief secretary of the patriarchy; 4. the great logothete is an intermediary between the Patriarchate and the Porte. On civil and political matters, other patriarchs communicate with the Turkish government through the intermediary of the Patriarch of Constantinople and through him they receive their “berats,” that is, letters of grant, on the basis of which they govern their regions. The election and installation of provincial patriarchs belongs to local synods. The closest rank (or advantage of honor) after the Patriarch of Constantinople is, according to ancient canons, occupied by the Patriarch of Alexandria. His district embraces the Orthodox population of Egypt, Libya, Arabia and Nubia. Since the 17th century, he has had his residence not in Alkesandria, but in Cairo. His title is: “Patriach of Alexandria and Ecumenical Judge.” The number of Christians subordinate to him extends to no more than 10 thousand families. Third place among the Eastern Patriarchs belongs to Antioch. The Orthodox population in Syria and partly Mesopotamia is subject to its jurisdiction. He has a residence in Damascus and is called: “Patriarch of the great city of God of Antioch and the whole East.” His spiritual flock consists of approximately 30 thousand Orthodox families, mostly Arabs. The last of the eastern patriarchs is the one of Jerusalem, and the Orthodox churches in Palestine are subordinate to him. The Synod existing under him is called the “Brotherhood of the Holy Sepulcher.” The number of the Orthodox population of the Jerusalem Patriarchate does not exceed 15 thousand souls, more than half of them are Arabs. The power of metropolitans, metropolitans and patriarchs in the local autocephalous church is not sole. On the contrary, we have already seen that in matters affecting the entire church, they are obliged to act in alliance with the entire local hierarchy represented at the council. Thus, the council is the main dominant form of higher church government, in which the principle of equality of spiritual power of bishops is constantly manifested. From the time when the ranks and corresponding rights of power of metropolitans were established in the church, councils acquired the character of government, that is, such meetings of bishops in a given church that were to be held at certain times, namely first twice, and then once a year (Ap. 20, 37; 1 Ecum. 5; 2 Ecum. 2; 4 Ecum. 19; 6 Ecum. 8; 7 Ecum. 6 etc.). The right to convene these periodic councils and preside over them according to the canons belongs to the metropolitans and patriarchs, without whom the council, as incomplete and incorrect, cannot leave any valid definition (Act. 20). At the call of the metropolitan and the patriarch, all bishops subordinate to them were obliged to appear at the times specified by them and at the places indicated by them at the council, unless any unexpected circumstances and circumstances beyond their control prevented this. Anyone who fails to appear without a good reason is found guilty (Laod. 40) and is subject to a fraternal reprimand from the entire council (Chalk. 19 at the end) or (Carth. 87) is subject to temporary excommunication from other bishops. If local civil authorities prevented any bishop from going to the council, then, according to Greco-Roman laws (137 new Just.), such civil leaders are deprived of their positions, and according to church rules they are subject to excommunication (1 Om. 6). The minimum number of bishops required to constitute a valid council must consist of a metropolitan or patriarch and at least 2 diocesan bishops (Apos 1; 1 Ecumenical 4). But when it came to the trial of a bishop, then, according to the exact meaning of the definition of the Council of Constantinople under Nektarios, the presence of at least 4 bishops was required, and according to Carth. 12 – at least twelve. However, these numbers do not have absolute significance, since not every autocephalous church can have such a significant number of bishops that its minimum would be the figure 12. Only the number three should be recognized as absolutely necessary, as in the meaning of the 1st apostle. rules, and according to the well-known legal aphorism: Ires faciunt collegium. The scope of action of a local council of an autocephalous church is limited to its internal affairs, which, however, must be conducted on a general church basis and in such a direction that the mutual connection of all autocephalous churches, as organic parts of one whole, that is, one universal church of Christ, is constantly supported and strengthened. Matters within the competence of the council of the autocephalous church, in the 6th canon of the 7th Ecumenical Council, are called canonical and evangelical. The 1st includes, firstly, matters of church government in the broad sense of the word, namely the publication of rules and regulations that are binding on the entire hierarchy and on all ordinary members of a given church (legislative function); secondly, administrative matters in the strict sense of the word, which include: a) filling vacant episcopal sees (Apostle 1; 1 ecum. 4; 7 ecum. 3, etc.); b) the establishment of bishoprics (Carth. 98); c) the dismissal of bishops from office and their transfer to other dioceses (Apostle 14, Antioch. 16); d) supervision over the management of church property by dioceses, in accordance with canonical decrees on this subject (Ant. 25): thus, for example, the alienation of church property can be carried out by local diocesan bishops only with the permission of the metropolitan and his council (Carth. 42, 7 Ecum. 12); e) generally taking measures to eliminate unrest in church life in individual dioceses (all these are administrative functions). Thirdly, court cases. The Council is a court of either first or second instance. He constitutes the first instance: a) in disputes between two bishops regarding church affairs in general and in particular about the belonging of parishes to one or another of the adjacent dioceses or about the boundaries of these dioceses (Chalc. 17; Tr. 25); b) in disputes between a lower cleric and a bishop of another diocese (Khalk. 9) and c) on complaints from clergy or laity against bishops about their violation of church rules and, in general, about any abuse of their power. The council of the autocephalous church is the court of second instance for all clergy and laity, who generally have a legal basis for appealing the verdict pronounced against them by the episcopal court (Ant. 20; Carth. 11, etc.) The so-called evangelical cases of the council of the autocephalous church include: 1, all cases directly related to religion and dogma, namely discussions on the subjects of doctrine and moral teaching, regarding issues arising in the local church until the final resolution of these issues at the ecumenical councils (Apost. 37, Antioch. 20), 2, monitoring the order of public worship and correcting church liturgical books (interpretation of Zon. and Vims. on 6 pr. VII Ecumenical sob.) c) Permanent councils or synods Synod of the Patriarch of Constantinople Since councils with the primacy of the bishops of the autocephalous church - metropolitans or patriarchs - constitute one indivisible whole, one highest body of church government; further, since regular, periodic meetings of bishops are naturally associated with various inconveniences and difficulties, and sometimes are even actually impossible, then already during the period of ecumenical councils, permanent councils or synods (σύνοδος ἐνδημοῦσα) were formed under the patriarchal sees known to us, which inherited all the power of the previous periodic councils. Naturally, the synod at the department of the Patriarch of Constantinople received special significance in the Eastern Church. This synod was usually composed under the chairmanship of the patriarch from bishops and metropolitans who came to the capital on the affairs of their churches and often lived here at home, so that at any time it was convenient for the patriarch to gather a sufficient number of bishops for one or another matter that, according to the canons, required a conciliar decision. The Patriarchal Synod of Constantinople remained as a necessary body of church government under the patriarch even after the fall of the Byzantine Empire, receiving only the Turkish name “Cemat”. But now its personnel has changed. Currently, the synod consists not only of clergy, but also of representatives of the Greek people, the so-called “Phanariots”. These representatives are elected by the entire national assembly, while the spiritual members of the synod, twelve in number, are elected by the local patriarch, with the exception, however, of the four metropolitans (Heraclian, Cyzitic, Nikomedia and Chalcedon), who became indispensable members of the synod, and among whom, as those closest to the capital and the eldest, the patriarchal seal is divided, consisting of four components, fastened with a ring. As the custodians of this seal, the named metropolitans must constantly be in Constantinople, as a result of which they have a special influence on the affairs of the patriarchate and, in the event of the death of the patriarch, take over the management of all the affairs of the patriarchate until the election of a new patriarch. In the most important matters, the general consent of all these four metropolitans is certainly required. The office work of the patriarchate and the patriarchal synod is concentrated in the hands of a special church-state dignitary, called the “great logothete.” This dignitary bears a great resemblance to our synodal chief prosecutor. The Great Logothete is the mediator between the patriarchal throne and the porta. All official representations of the Porte must pass through his hands, which therefore require his consent. He also has the right to seal all synodal acts concerning the appointment of metropolitans and diocesan bishops, and for the production of letters he receives a certain fee at a special rate. Without the seal of the logothete, not a single synodal act has legal force. Given the importance of this dignitary, it is easy to understand that he plays an important role in the election and deposition of the patriarch himself. Chapter 4. The structure of higher church administration in the Russian Church Until the half of the 15th century (before the fall of the Byzantine Empire), the Russian Church, as descended from the Greek, was the metropolis of the Constantinople matriarchate and was in the same subordination to the local patriarch as other Greek metropolises. Our metropolitans were not only appointed, but also elected in Constantinople, usually from among the Greeks. Until the half of the 13th century, or before the Mongol invasion, there were only two examples of local election and installation of metropolitans, by Russian descent and a council of Russian bishops, namely the installation of Hilarion under Yaroslav the Great in the half of the 11th century and Clement Smolyatich under Izyaslav II in the 12th, i.e., a hundred years after Hilarion. During the Mongol period (1240–1448), Russian metropolitans were also appointed in Constantinople, but were often elected in Rus' or Lithuania, since the Russian metropolitanate was now divided into two: the northeastern and southwestern. After the fall of Constantinople in 1453, the dependence of our metropolitans on the Patriarch of Constantinople naturally ceased, if not de iure, then de facto. The first metropolitan of the Russian installation after the fall of Constantinople was Theodosius, under the Grand Duke Vasily Vasilyevich the Dark. The rights of the Russian metropolitan to govern the dioceses subordinate to him were the same as those granted to hierarchs of this title by the ancient canons. Namely, our metropolitans gathered bishops for councils, which, according to the canons, was necessary for the ordination of bishops to vacant sees and also for the trial of bishops and for resolving general church issues (dogmatic and disciplinary). Councils usually met in the metropolitan city, i.e., where the metropolitan see was located (in the pre-Mongol period - in Kyiv, in the Mongol period, first in Vladimir on the Klyazma, then, from the beginning of the 14th century, in Moscow). Since the transfer of the metropolitan see to Moscow, the meeting of councils in this city has become a general rule. But often metropolitans individually exercised their authority in the management of the bishoprics subordinate to them, addressing here with letters and teachings to bishops, monasteries and the entire flock; They often themselves undertook trips to see bishoprics. In relation to their subordinate bishops, the metropolitans were called their fathers, and the bishops treated them like sons. In 1589, instead of a metropolitanate, we established a patriarchate under Tsar Theodore Ioannovich, son of the Terrible, at the inspiration of his famous boyar, later tsar, Boris Godunov. The first Russian Patriarch Job was installed with the personal participation of the Patriarch of Constantinople Jeremiah II, who then arrived in Moscow to collect alms for the benefit of his church and three years later sent a letter from Constantinople on behalf of all the Eastern patriarchs. This charter established the Russian patriarchate and only by virtue of it did the Russian Church de iure become autocephalous, that is, independent, from the Patriarch of Constantinople. According to this charter, which is usually printed at the beginning of our old Helmsman, the Russian patriarch, as the youngest, received the last place in the ranks of the Eastern patriarchs, that is, after the Patriarch of Jerusalem. But he differed from the Eastern patriarchs quite sharply in the following three respects: 1. the extraordinary vastness of the church territory that was under his authority; 2, under him there was no permanent council or synod, which existed and still exists under the Eastern patriarchs; 3, our patriarch did not constitute the third authority in church government, rising above the church bishops and metropolitans (the latter as the second authority). The title of metropolitans upon the establishment of the patriarchate became with us a simple title assigned to some senior diocesan bishops (for example, Novgorod), but without responsible rights of power, so that in essence our patriarchs remained the same metropolitans that we had before the establishment of the patriarchate, and differed from them only in some special accessories of the bishop's vestments, and not in the rights of power. True, at the Great Moscow Council of 1667, the patriarchs present at this council proposed dividing the Russian church territory, following the example of the Greek, into several metropolises and subordinating ordinary bishops to the jurisdiction of these metropolitans; a similar proposal was made by Tsar Feodor Alekseevich at the council of 1682; but both times the proposal was rejected, because its acceptance, in the opinion of the Russian hierarchs, would lead to the humiliation of the episcopal rank. Following the model of public administration, under the patriarchal see there were orders that were primarily in charge of the affairs of the patriarchal region, like a bishopric, for the management of which they were originally established. Subsequently, these orders were in charge of the central administration of the entire Russian Church. There were three Patriarchal orders: 1st, the so-called Patriarchal Order: from here blessed letters for the construction of churches were issued, letters to bishops, here the trial of clergy and laity of all states was carried out in civil and criminal cases provided to the church department by the statutes of St. Vladimir, 2) State Prikaz: he was in charge of various collections that went to the patriarchal treasury; 3) Palace Order, he managed the real estate belonging to the patriarch, as well as the farms of the patriarchal house; under his jurisdiction were all the secular officials of the patriarch and all the servants of the patriarchal court and estates; Judicial decisions of this order and appeals were transferred to the consideration of the tsar and his boyars. Similar orders were established, whenever possible, in dioceses. The order staff consisted either of clergy or secular persons, depending on the nature of one or another order. Thus, the bishop's treasurer was usually in charge of the state order; Of the monks, secular officials sat in the Palace Prikaz, namely the holy boyars and clerks. The Patriarchal rank (in the dioceses it corresponded to the Spiritual Prikaz) was also administered at the beginning of the 17th century by secular officials (boyars, clerks and clerks). But the Great Moscow Council of 1867, according to the resolutions of the Stoglavy Council, found it indecent for clergy to be tried by laymen and ordered that the consideration of cases in which clergy were tried in the Discharge be entrusted to judges of clergy. As a result of this decree, the Patriarchal Order and the corresponding orders for the dioceses were divided into two departments: one for the trial of clergy under the jurisdiction of a spiritual court; the last department was called the Spiritual Order. Holy Governing Synod The Patriarchate lasted for a little over a century. The last patriarch was Adrian (†1700). Peter the Great, who saw the patriarchs as a great obstacle with his demands, did not appoint a successor to Adrian, but entrusted the management of the affairs of the Russian church to the Ryazan Metropolitan Stefan Yavorsky with the title of “locum tenens of the patriarchal throne.” This was a preparatory measure for the complete destruction of the patriarchate in our country and its replacement by the Permanent Synod. The idea of ​​a synodal form of church government was first expressed by Peter the Great in 1718 in a resolution on the reporting points of the aforementioned Stefan Yavorsky regarding the latter’s complaint about being burdened with cases sent from “dowager” (vacant) dioceses. Peter noted against this point that for better management of church affairs, “it seems convenient to have a college. Three years later, indeed, the Theological College was established, which was soon, however, renamed the Governing Synod, since the previous name sounded too uncanonical and, moreover, put the Synod on the same line as the other colleges, between which Peter divided the central government administration. The new name... of the board. The reasons for replacing the sole, or patriarchal, management with a collegial or synodal one are set out in detail by Peter in his manifesto on the establishment of the Synod on January 25, 1721 and in the preface to the Spiritual Regulations. The first says that “there is no better way to correct the spiritual order than a conciliar government, since in a single person it is not without partiality, moreover, spiritual power is not hereditary, and for this reason individual rulers are no longer neglectful.” In the preface to the Regulations, various advantages of cathedral governance over individual governance are indicated, namely: 1, the council can more accurately find the truth than one person alone, 2, definitions emanating from the council are more authoritative than an individual decree; to prove this position, Peter refers to the example of the monarchs themselves: the monarch is an autocratic ruler, however, in the most important matters he also consults with the highest state dignitaries, so that the common people do not think that the monarch prescribes something only at his own discretion and whim, and not according to reasoning with experienced people; all the more should this be said about church government, where the government is not monarchical, and rulers are commanded not to dominate their subordinates; 3, in a one-man rule there is often a stop in business due to the complexity of the activities or due to the personal circumstances of the ruler, and in the event of his death, the flow of affairs completely stops for a certain time, but in a conciliar rule this cannot happen; 4, in the college there is no place for partiality, deceit, covetousness, especially since persons of various ranks should sit here: bishops, archimandrites, abbots and more clergy; 5, the collegium has more freedom and independence in the administration of justice: it has nothing to fear from the wrath of the powerful because those dissatisfied with its court cannot so easily “take revenge on many persons rather than on one”; 6, from the conciliar government the state has nothing to fear from riots and unrest, which arise from one spiritual ruler, for the common people, not being able to distinguish between spiritual and autocratic power, but marveling at the great honor of the supreme archpastor, think that such a ruler is a second sovereign, equivalent to the autocratic, and, perhaps, stronger than him, and that the spiritual rank is a different and better state; 7, all members of the college have an equal right to vote, not including the president, and all are subject to the court of their brethren, while the sole patriarch will not want to be tried by the bishops subordinate to him, and even if he were forced to do so, then in the eyes of the common people, who do not know justice, such a court would seem suspicious and worthy of reproach; therefore, an ecumenical council must be convened against an illegally acting patriarch, which in modern times, according to our relations with the Turks, presents great difficulties; finally, 8, in the conciliar government there will be, as it were, some kind of school for spiritual administration. But no matter how important all the now-explained political considerations were for Peter, nevertheless the destruction of the patriarchate and its replacement by the Synod, as a church-wide, canonical matter, could not be accomplished without the knowledge and consent of the other patriarchs, for the patriarchate itself was established in Russia also with the knowledge of the Eastern patriarchs. It was necessary that the Synod be recognized by the Eastern patriarchs as an equal church-governmental authority and be in constant canonical communion with them. Therefore, Peter the Great, soon after the opening of the Theological College, communicated by letter with the Patriarch of Constantinople Jeremiah III (it is remarkable that the patriarchate was established under Jeremiah, only the second), and asked him, in consultation with other patriarchs, to recognize our Synod as the highest church government in Russia. In 1723, Patriarch Jeremiah actually sent such an affirmative letter, in which he named St. The Synod is its brother in Christ, having the same power that belonged to the patriarchal thrones. Patriarch Athanasius of Antioch sent the same letter on his own behalf. Regarding the remaining two patriarchs, Jeremiah announced that one had died and his department remained vacant, and the other was on his deathbed, but that subsequently letters of confirmation would be sent from these departments. Patriarchal letters were received from us in September 1724 and were then sent out to all dioceses. Thus, in the canonical sense, the Russian Synod is a permanent council, equal in power to the four eastern patriarchs, and therefore bears their canonical title of “Holy One,” and therefore its name during worship is pronounced in the same place where the name of the patriarch was previously pronounced. The difference between our Synod and the permanent Synods that exist under the Eastern patriarchs is only that it is not an addition to the person of the patriarch, but a replacement for the patriarch, so that the Synod is, as it were, the collective person of the patriarch. This composition, since the establishment of the Synod, has been subject to various fluctuations and changes. According to the Spiritual Regulations, the presence of the Synod should consist of a president, two vice-presidents, four councilors and four assessors. The president and vice-president must be appointed from the bishops, the rest from the archimandrites, abbots and archpriests, but not from the dioceses of any of the member-bishops. All collegiates had to be present three times a week (on Mondays, Wednesdays and Fridays), but advisers and assessors had to come daily, alternating among themselves. But already under Catherine I, the Synod was divided into two departments: spiritual and secular. The first was composed of six members, with the president being renamed first present, and the other members being present. Only purely spiritual affairs were left under the jurisdiction of this department, while civil and economic affairs were placed under the jurisdiction of the secular department, which also consisted of six members, but of a secular rank. With this division of the Synod, the title of “Governor”, ​​which was given to him under Peter the Great, was taken away from him, in order to compare the Synod with the Senate. Under Anna Ioannovna, the question arose about a complete reorganization of the Synod. The draft of this reorganization was drawn up by the same Feofan Prokopovich, who was also the author of the Spiritual Regulations. According to this project, it was assumed, in accordance with the essence of the matter and the ancient canons, to increase the personnel of the Synod by members with the rank of bishop and at the same time appoint permanent members to the Synod. Prokopovich’s project was proposed by the Empress for consideration by the conference of the Synod and the Senate, but the reasoning of the conference did not lead to any result: the Empress herself decided the issue, ordering three bishops, two archimandrites and two archpriests to be members of the Synod. This is how the presence of the Synod was formed during the next reign until the publication of the Spiritual States in 1763 by Catherine II, according to which three bishops, two archimandrites and one archpriest were supposed to be members of the Synod. According to the new staff, Supremely approved under Alexander I on July 9, 1819, seven persons with the rank of first present, members and those present were supposed to be present in the Synod. During the reign of Nicholas I, the place of archimandrites in the Synod was taken by two highest members from the disgraced clergy: the chief priest of the guard and the Grenadian corps (he was also the royal confessor) and the chief priest of the army and navy. But at the present time, these two ranks have also been removed from their presence in the Synod, which is now composed exclusively of bishops. Three of them, with the title of metropolitans (St. Petersburg, Moscow and Kiev) are called members of the Synod, and the others only present. The presidency of the Synod belongs to the St. Petersburg Metropolitan, who, by the very position of his chair, is an indispensable member of the Synod. The bishops present are appointed and dismissed by the Supreme Authority, upon the representation of the Synod through the chief prosecutor. The modern composition of the Synod (made up exclusively of bishops) is undoubtedly more consistent with the basic church canons, according to which only bishops can be valid and full members of the council, as the highest body of church government. Our Synod constitutes the highest ecclesiastical, administrative and judicial authority for the administration of the Orthodox religion in Russia. He has: 1, the right to elect and appoint to vacant episcopal sees, 2, the right to establish new dioceses - both with the consent, of course, of the supreme power, 3, the right of supreme supervision over the implementation of church laws by the Orthodox population of the state and the religious education of the people, 4, the right to establish new religious celebrations, rites and canonizations of new saints, 5, legislative power on the affairs of the Russian Church and the right to participate in the legislative activities of the state on matters of a mixed nature, that is, equally concerning both the church and the state, 6, the right to publish books of St. Scriptures and liturgical services for church-wide administration; 7, the right of supreme censorship over works of religious content; 8, the right to petition the Supreme Authority regarding the needs of the Orthodox Church; 9, as a body of the highest judicial power, the Synod is judged either by the first instance in cases of anti-canonical actions of diocesan bishops, or by the second instance - on complaints against the decisions of diocesan courts; he also has the right to make a final decision, if not all, then most of the divorce cases, as well as cases of defrocking clergy and excommunication of the laity; finally, 10, the Synod is the body of canonical communication of the Russian Orthodox Church with other autocephalous churches, which together constitute the one universal Church of Christ. In addition to the now described range of affairs subordinate to the Synod, as the central governing body of the Russian Church, it has direct jurisdiction over some local church institutions, partly inherited by it from the previous patriarchs, and partly subordinated to it subsequently. Initially, the entire patriarchal region was under the direct jurisdiction of the Synod and was called the Synodal region. The Synod governed this area through the same orders that the patriarchs had. This was the case until 1742, when a special Moscow diocese was established with a bishop who initially received the title of archbishop, and later (under Catherine II) - metropolitan. However, not all of the former patriarchal power was transferred to the Moscow diocese: the most remote parts of it went to other dioceses (Vladimir, Nizhny Novgorod and Vologda). Then, only a small part of church institutions remained under the direct jurisdiction of the Synod, which were called stauropegial; Most of these institutions are located in Moscow, namely the Assumption Cathedral and the local stauropegial monasteries listed above for another reason. Officials and institutions under the Synod a) By central management According to the central administration of the affairs of the Russian Church, under St. The Synod has the following officials and institutions. 1. Chief Prosecutor of St. Synod and its office. This position was established by Peter the Great in 1722. The Synodal Chief Prosecutor was then given an Instruction that was literally copied from the Instructions of the Prosecutor General under the Senate. Based on this instruction and subsequent additions to it, the rights and obligations of the Chief Prosecutor of St. The Synod consists of the following: it oversees the implementation of state laws on the spiritual department and the strict movement of affairs subject to the conduct of the Holy Spirit. Synod; b) revises the protocols of St. Synod before they are carried out; c) presents reports to St. Synod to the Sovereign Emperor and announces St. To the Synod The highest commands, d) on the affairs of the department of the Synod, for the necessary explanations, is present in the State Council and the Committee of Ministers; e) in general, all kinds of relations between the Synod and ministries and secular authorities are carried out through the Chief Prosecutor; f) in litigation of the treasury and private individuals with the ecclesiastical department, the opinion of the Chief Prosecutor is required, therefore all cases carried out in the Senate on church real estate are submitted to him for a preliminary conclusion; g) The Chief Prosecutor is the chief superior of all civil officials serving in the department of the Orthodox faith; their appointment and dismissal depends on the Chief Prosecutor, with the exception of ranks of the first five classes, who are appointed to positions by the Highest Orders and dismissed in the same manner. As a state dignitary, standing, in terms of power, on a par with ministers and chief managers of individual units, the Chief Prosecutor has with him a comrade and a special office, equal to departments under ministries. This office was first established in 1839. It concentrates all the proceedings under the personal supervision of the Chief Prosecutor, where he acts separately from the Synod, as the chief manager of a special part. This office is divided into three branches. According to the new staff on June 20, 1872, it included: a director, a vice-director, two officials of special assignments, three heads of departments, three chief clerks, five assistant chief clerks, an executor (also an archivist) and a journalist. 2. One must distinguish the office of St. himself from the office of the Chief Prosecutor. Synod. This office is divided according to the type of affairs under the jurisdiction of the Synod into six departments. At the head of the entire office is the manager, and at the head of the departments are chief secretaries. In addition, according to the staff of the synod office on June 20, 1872 (i.e., given together with the staff of the office of the Chief Prosecutor), it included 7 more senior secretaries, the head of the archive and library, an executor, a journalist and a protocolist. 3. Economic management under the Synod. It was established in 1839 and manages all the amounts and assets that make up the special funds of St. Synod. In addition, it also manages the amounts allocated annually from the state treasury for church needs. This institution also considers all the submissions of the diocesan authorities regarding various church buildings and reconstructions proposed for the account of the loan included in the state list and, with its conclusion, submits these cases for approval by the Synod. The economic management is under the main command of the synodal Chief Prosecutor, whose direct orders are given to all economic affairs, which are carried out on the basis of existing rules, charters and resolutions. Matters concerning the most important disposal of synodal capital, income and expenses depend directly on the Synod itself. 4. Educational Committee at St. Synod. It was established in 1887 to discuss the issues to be resolved by St. Synod of questions on the educational and pedagogical part and to monitor through an audit the state of this part in theological educational institutions. The Training Committee consists of a chairman and 9 members; the chairman is always elected from among the clergy, and the members from clergy and secular persons, but certainly with higher education, academic or university. The chairman and members of the committee are appointed at the proposal of the Chief Prosecutor. Of the committee members, six are constantly present in it, and the remaining three are sent to audit religious educational institutions. In their free time from the audit, these members are also required to participate in committee meetings. To participate in the Committee, the chairman invites, as needed and with the right to vote, outsiders from scientists and teachers, both living in St. Petersburg and from other cities if the latter for some reason stay in St. Petersburg. The activities of the members of the Committee are distributed by the Chairman, who, by this title, generally enjoys the rights granted to the chairmen of collegiate institutions. The subjects of the studies of the Educational Committee at the Synod are: 1) questions regarding the implementation of the statutes of secondary and lower theological educational institutions, and specifically schools and seminaries, 2) assumptions about measures to improve these institutions in educational and pedagogical activities; 3) teaching programs in religious schools and seminaries; 4) training manuals for these institutions; 5) books, essays and periodicals intended for distribution in theological schools and seminaries; 6) annual reports on the condition of these institutions; 7) reports on audits of religious educational institutions; 8) measures that may be necessary to address certain issues and 9) measures to establish schools for girls of the clergy. In addition, the Committee, with the permission of the Synod, appoints competitions for the compilation of various textbooks, and decides on the award of prizes for these textbooks and for scientific works of theological content. 5. On the management of places and persons under the direct jurisdiction of the Synod. These include: Moscow and Georgian-Imeretian offices of St. Synod. The first is chaired by the Moscow Metropolitan, and in his absence, by the senior vicar. Its members are appointed bishops living in Moscow monasteries in retirement, the archimandrite of one of the Moscow stauropegial monasteries and the protopresbyter of the Moscow Assumption Cathedral; these members are approved by the Highest orders upon the recommendation of St. Synod through the Chief Prosecutor. The Moscow Synodal Office manages the stauropegial monasteries located in Moscow, the Moscow Assumption Cathedral, the synodal house with the Church of the 12 Apostles (in the Kremlin), the synodal sacristy and the library. In addition, this office is also given the opportunity to prepare St. myrrh and send it out to the dioceses. The Georgian-Imereti Synodal Office was established in 1814 in Tiflis. It is chaired by the Exarch of Georgia, Archbishop of Kartalin and Kakheti. There are four members present: three from the archimandrites and one from the archpriests. It constitutes, as it were, a branch of St. Synod, which was entrusted with the management of the affairs of the Georgian Church, which at the beginning of this century was annexed to the Russian one. In particular, the Georgian-Imeritian Synodal Office, together with the exarch, was granted the right to elect candidates for vacant episcopal sees in the Transcaucasian region and represent them to the saints. Synod for approval. The bishops of Georgia and Immeretia, in the management of the dioceses entrusted to them, act in a certain dependence on the local Synodal Office; they provide it with reports on diocesan management and, in case of any misunderstandings, are obliged to contact it for clarifications and instructions. This office is also the highest authority in divorce cases, as well as crimes and misdemeanors of persons of clergy. Chapter 5. Structure of the Roman Catholic, Evangelical Lutheran and Armenian Gregorian churches according to their charters included in the Code of Laws of the Russian Empire In the general circle of state administration, the spiritual affairs of Christians and foreign faiths are managed in the Ministry of Internal Affairs, in the Department of Spiritual Affairs of Foreign Faiths, and all legislation regarding these faiths is placed in Part 1 of Volume XI of the Code of Laws. A. Roman Catholic Church In Russia there are seven dioceses of the Roman Catholic faith: the archdiocese of Mogilev, and the dioceses of Vilna, Talgichev (or Samogit), Minsk, Lutsk-Zhitomir, Kamenets and Tiraspol. The Archbishop of Mogilev is at the same time the metropolitan of all Roman Catholic churches in the Empire, and the diocesan bishops are at the same time his suffragants (i.e., subordinates, assistants). The Metropolitan and bishops are appointed by the Supreme Decrees to the Governing Senate, by prior agreement with the Pope. They are allowed, after taking the established oath of allegiance to the Sovereign Emperor and the legitimate heir to the Throne, to take the oath to the Supreme Priest of the Roman Church, according to the Highest approved model. Each bishop in his diocese has the spiritual court and administration of affairs, as well as the “highest” supervision of the clergy of his confession and of all spiritual institutions with their properties. Thus, under the main authority and supervision of the bishop are all the monasteries in the diocese, the number of which is determined by the states, and which are governed according to their own rules and regulations, insofar as the latter are consistent with the general laws regarding the Roman Catholic clergy and with civil regulations. The bishops also have supreme control over the subject of education, science and internal discipline in the seminaries of their dioceses and the appointment of seminary authorities with the prior approval of the government; The Mogilev Archbishop exercises the same power in relation to the Theological Academy, located in St. Petersburg and under his command. To consider and resolve matters common to all Roman Catholic dioceses, there is a Roman Catholic Ecclesiastical Board in St. Petersburg, which includes the chairman, Archbishop of Mogilev, two members and seven assessors from the dioceses; she has a prosecutor and an office. This board concentrates matters relating to the entire administration of the Roman Catholic clergy in the Empire, namely: 1) complete information about all Roman Catholic churches and other religious institutions, movable and immovable property; 2) supervision over the correct and successful course of affairs in the diocesan consistories; 3) consideration and presentation to the highest government of all kinds of projects of the diocesan authorities related to the general state and at the same time church benefit; 4) matters regarding the admission of those wishing to enter monasticism and the permission of those wishing to be Jews, Mohammedans and pagans to accept the Christian faith according to the Roman Catholic confession; finally, 5) management of various monetary capitals of the Roman Catholic clergy in the Empire. Cases requiring higher resolution or consideration by other authorities and state places are submitted by the board to the Minister of Internal Affairs, who gives these cases the proper course, adding his conclusion to each of them. On judicial matters, the Collegium communicates directly with the Governing Synod and the Minister of Justice. B. Evangelical Lutheran Church The Protestant Church in Russia is divided governmentally into eight districts, governed by consistories and divided into deaneries, which in turn are divided into parishes. The head of the consistorial district is a general or simply a super-intendent, that is, the chief overseer; The deanery is headed by a pastor called the prost, and the parish is headed by the parish preacher. The superintendent, that is, the chief overseer, consecrates the churches in his consistory district, supervises the testing of candidates for the position of parish preachers, ordains and inducts these latter, supervises the performance of duties by the provosts and preachers subordinate to him, and annually presents to the consistory short service records of both. Protestant parish preachers are elected from persons who have completed a course at universities, mainly in Derp, and have passed special tests in the consistory; none of them can be determined against the wishes of the parishioners. An auxiliary institution to the parish preacher is the parish or church trustees. They are obliged by all means in their power to help their parish preacher in his labors aimed at the spiritual good of the parishioners, for example, to make it easier for him to supervise the education of youth, to provide him with ways for the unhindered and decent performance of divine services, caring for the sick in the parish, etc. The assistants of the parish preachers are also church elders from the villages, directly subordinate to the church trustees and the pastor and obliged to observe, mainly image, over the behavior and lifestyle of parishioners of the lower classes, especially over the upbringing and home education of children. Together with the church trustees, they also bear responsibility for the management of the church economy. Guardianships at city parishes bear the special title of a parish council or convention. To supervise the actions of parish trustees and councils, there are main church trustees, one in each consistorial district, consisting of a chairman and two members - one secular and one ecclesiastical. For the general management of Protestant affairs and their resolution in the highest authority, there is a General Consistory, which meets twice a year and is composed of deputies elected for three years by the estates participating in church governance. Both the General and the other eight consistories have a secular president, a spiritual vice-president (this is a general or super-intendent) and an equal number of secular or spiritual assessors. All named persons are confirmed in office by the Highest Decrees to the Governing Senate, announced through the Minister of Internal Affairs. In addition, the government, if necessary, sometimes convenes, at its discretion, a General Synod, composed of deputies and members of monastic consistories. The General Synod communicates to the government the needs and desires of its church. However, super-intendents within their consistorial districts also have the right to convene similar synods. B. Armenian-Gregorian Church Followers of the Armenian Gregorian Church live within three states - Turkey, Persia and Russia. There are 18 Armenian-Gregorian dioceses within Turkey; they are subordinate to the Armenian-Gregoriarch of Constantinople. The Armenians living within Persia and Russia are under the jurisdiction of another Armenian-Gregorian Patriarch, who resides in the Etchmiadzin Monastery within Russia. The Patriarch of Etchmiadzin is considered the spiritual head of all Armenians of the Gregorian confession and those who live within Turkey; therefore he bears the title of Catholicos of all Armenians. The Supreme Patriarch of Etchmiadzin is elected by the entire Gaykan people of the Armenian-Gregorian confession. At the end of the selection, the electoral assembly sends a deputation to the commander-in-chief of the civil part in the Caucasus, who presents the selected two candidates, through the Minister of Internal Affairs, at the discretion of His Imperial Majesty. The Patriarch, having previously heeded the opinion of the Etchmiadzin Synod, finally decides all purely spiritual matters relating to the dogmas of faith, the conduct of worship, etc. He ordains all diocesan bishops, awards clergy with pectoral crosses, skufia and kamilavkas, and has the right to brew and consecrate the world for all churches of his confession. The Etchmiadzin Armenian-Gregorian Synod consists of four archbishops or bishops permanently residing in Etchmiadzin and the same number of archimandrite-vartapeds, chaired by the Supreme Patriarch Catholicos of Etchmiadzin. Members of the Synod are appointed with the Highest approval on the proposal of the Catholicos through the Minister of Internal Affairs - two candidates for each place. The Synod acts as a collegium; The voice of the Patriarch, as chairman, has the upper hand in the event of a tie, but in all purely spiritual matters the patriarch has a decisive voice. When discussing matters of the latter kind, he is not present at the Synod, but having examined the conclusion of the Synod in the journals presented to him, he gives his resolution on them. The range of administrative actions of the Synod includes: 1) monitoring the actions of subordinate places and persons; 2) supervision over the management of church property; 3) preliminary consideration of cases on the establishment of monasteries, churches and seminaries and a request for this through the Minister of Internal Affairs of the Highest Resolution; 4) permission for Armenians to enter the clergy and take monastic vows, permission to become a monk and clergy; 5) final consideration of cases regarding permissions requested for marriage; 6) monitoring the care of widows and orphans of the clergy; 7) maintaining lists of all churches, monasteries, seminaries and charitable institutions of the Armenian-Gregorian faith located within Russia, separately for each diocese, and of all clergy and monasticism; 8) cases on allowing Mohammedans and pagans to accept the Christian faith of the Armenian-Gregorian religion; 9) submission to the Ministry of Internal Affairs of annual reports on churches, monasteries, clergy, complete metric information on births, deaths and marriages, and a general annual report. In terms of judicial proceedings and the decision of the Synod, the following are subject to: 1) complaints against diocesan superiors and diocesan consistories, 2) complaints against members of the Synod, 3) investigation of the incorrect actions of members of the Synod and diocesan superiors, 4) all cases carried out in diocesan consistories and submitted to the Synod on appeal regarding marriages and crimes of sacred and not subject to secular court church ministers, about these litigations among themselves and so on. The Armenian-Gregorian Church in Russia is divided governmentally into six dioceses: Nakhichevan and Bessarabian, Astrakhan, Erivan, Georgian, Karabakh and Shirvan. Diocesan leaders are appointed by the Sovereign Emperor from among the clergy of the Armenian-Gregorian confession. They are determined and dismissed by the Highest decrees. Upon taking office, they take an oath of allegiance to citizenship and service. Armenian-Gregorian bishops are the full spiritual leaders of this confession. They are ordained to different degrees of priesthood; Archimandrites do not do so except with the permission of the patriarch. Diocesan leaders, upon review of the dioceses entrusted to them, submit to the Synod a detailed report on their actions, and at the end of the year a general report on the affairs of their diocese. They are assisted in the affairs of governing the consistory, and in some dioceses, in addition to them, by spiritual boards. Part 2. Church administration Chapter 1. Church-criminal court The subject of a church court, of course, can only be cases and relationships that are subject exclusively to church laws and not state laws. If the church has the right to prescribe rules for external life to its members, then it goes without saying that it has the right to monitor the implementation of these rules and take certain repressive measures against violators of the existing order in it. This means that in the church there must be a court with the character of a criminal, punitive court. Punitive measures of the church naturally consist in removing the offender of church laws from enjoying all or only some of the rights and benefits that belong to him as a member of church society. The purpose of such removal, as of all church punishments in general, is to atone for guilt by opposing good deeds and deeds of repentance, confirming the internal, moral correction of the guilty person, the destruction in him of the very root of all crimes, the vicious and evil will, against which the entire system of church punishments is directed. From here arise the following basic principles of the criminal law of the church: 1) not a single, even the most extreme, church punishment can be a criminal punishment in the proper sense of the word. The Church must subordinate the transgressing human will to the Law of God, correct it, and not destroy it, and in no case should it abandon this goal. 2) Purely ecclesiastical punishments, consisting of deprivation of benefits that are at the exclusive disposal of the church, can only be imposed by spiritual authority. 3) The punitive jurisdiction of the church can only extend to its active members: “God judges those who are without,” said the Apostle. 4) The church’s concept of a criminal act is broader than what is accepted in criminal law. The Church considers every crime as a sin, and recognizes as a sin not only the violation of God’s commandments, but also every human law, which has its basis in the very moral nature of man. That is why in the canonical code we find definitions of church punishments for purely sinful crimes of various kinds: for adultery, murder, theft, robbery, etc. Such crimes can become the subject of the court of the church after a criminal trial of the guilty and in addition to this trial, if they are made known only to the church (for example, through confession) or if the state authority itself delivers the criminal to the court of the church (as was, for example, in the Middle Ages due to the well-known ius asyli - the right of criminals to resort to under the protection of the church from threatened criminal punishment). But on the other hand, since not every sin is a crime, but only a sin for which a certain punishment is directly prescribed in church or state law, and which is an open violation of one or another law, then in the field of church-criminal law there is a difference between sin in general and crime in particular: those sins that are not both crimes, i.e. consist in violating purely moral requirements, are judged by the church in foro interno in a secret court of confession, where the guilty person, together with the minister of the church, himself is the judge of his act in the face of God; on the contrary, the church shares the trial of crimes in the proper sense with the state in cases where purely church laws are violated, the church judges and, moreover, judges openly in foro externo - openly, by a formal court, according to known procedural rules, and crimes that violate secular or worldly laws are subject to the jurisdiction of the state; but, if certain actions are recognized as crimes in both state and church laws, then both the church and the state judge them. From these three points of view, it is necessary to distinguish: 1) purely ecclesiastical crimes, 2) purely criminal crimes and 3) crimes of a mixed nature and, therefore, of mixed jurisdiction. Historical sketch of criminal ecclesiastical jurisdiction In the first three centuries, while the church was not yet in union with the state, it had at its disposal only those means of punishment that flowed from its nature; it was it that denied its criminal members the benefits of religion and even completely excluded believers from society; this is where the power given to it to bind and permit was manifested. If one believer violated the right of another, then the ancient church was guided by the rules set forth in the Gospel: the offended person first had to denounce the offender, face to face, then in front of two or three witnesses, and if even here the offender does not recognize his guilt, the case should be submitted to the judgment of the entire church community, which could expose the incorrigible, if he does not listen to the church, to exclusion from his midst (Matt. g. 15, art. 15–17). Here we see the beginnings of a special canonical process, which began with the so-called denuntiatio evangelica, a statement to the church about an offense and ended with anathema, excommunication in the event of unrepentance of the guilty party. With the recognition of the church in the state under Constantine the Great, the circle of its competence in cases of crimes expanded and the state in its sphere began to support the authority of this court: thus, church anathema for heresy, schism, began to be accompanied by unfavorable consequences in the sphere of state and civil law. But since the most important crimes against faith and purity of morals in the Christian Greco-Roman Empire were recognized as crimes from the point of view of criminal law, the external court of the church for these crimes of the laity could not have extensive effect. The Church tried the laity only for crimes that were truly of a purely ecclesiastical nature or that were not provided for in state laws. For this reason, the circle of the department of the church-criminal court in relation to persons of clergy has expanded much more. It was from the era of the establishment of the union between church and state that Christian emperors not only recognized the right of the church authorities to exclusively judge clergy for crimes against the duties of their rank, determined by special church laws, but also made a significant concession to the desire of the spiritual hierarchy to subordinate clergy to their court in criminal matters. It was the church rules that required that clergy bring their criminal claims against clergy to be decided not by secular judges, but by spiritual ones in the order of church-judicial instances (Carth. 15, Khalk. 8). The state initially allowed this only in relation to minor crimes of clergy, and, moreover, it made no difference whether the perpetrator was brought to justice by a cleric or a layman. But Justinian had already ruled that the trial of clergy in criminal cases could only begin before both a spiritual and a secular judge. The bishop, upon consideration of the case, pronounces a verdict on the basis of church canons (and the verdict is also church punishment), and then is obliged to transport the culprit to a secular criminal court, where the punishment is determined according to criminal laws. If a complaint against a clergyman was first brought to a secular court, then he, at the end of the process but even before pronouncing the verdict, had to transfer all judicial acts to the bishop to determine the measure of church punishment for the guilty person; If the bishop found the crime unproven or the decision of the case was incorrect, then he could stop the execution of the sentence of the criminal court, and the matter was transferred to the decision of the emperor himself. In the 7th century, Emperor Heraclius abolished this dual jurisdiction of the clergy in criminal cases and placed these cases under the exclusive authority of bishops. If the bishop, after considering the case, found that the defendant deserved the strictest punishment than what was determined in the church canons, then he, the bishop, had to deprive the guilty person of his clergy and hand him over to the civil authorities for punishment under criminal laws. Church criminal court in Russia At its very founding, the Russian Church received an extremely large number of criminal cases of various kinds into its department. Some of these cases were tried by the church authorities because the crime was committed directly against the church and religion, others - because the crime was in connection with such civil cases that were transferred to the department of the clergy by our old church statutes, others - because the crime was committed among people wholly subordinate to the church, fourth, finally, because the crime was not punishable by the criminal laws of the country, that is, it was not considered a crime. Crimes that, for one or another of the above reasons, were judged by spiritual authorities, can be subsumed under the following categories: 1) crimes against faith and the church; here, according to the church statutes of Vladimir and Yaroslav, belonged: the performance of pagan rituals by Christians, magic, sacrilege, violation of the sanctity of temples, and the church, guided by the Greek nomocanon, included blasphemy, apostasy from the faith, heresy, schism, 2) crimes against public purity of morals (fornication, rape of a woman, bestiality); 3) crimes against the family union and against the church grounds of marriage law: polygamy, marriages in prohibited degrees of kinship, incest, willful divorce, abuse of parental authority and children’s disrespect for the authority of their parents; 4) some cases of suicide, precisely when cases about it came into contact with other civil and criminal cases presented to the saintly courts; so, if the murder was committed within the circle of a marital or family union (for example, expulsion of a fetus, an attack by one spouse on the life of the other). Likewise, murder was considered the subject of a church court when its object was a lawless person under the patronage of the church, or when the murderer and the murdered were “church people”, 5) personal insults, when they were committed within a family union or were inflicted in a way that was especially shameful according to the concepts of that time, or consisted of insulting a woman with a word offensive to her chastity, and a man calling him a heretic, a wizard, etc. In addition counted crimes, the clergy were subject to the jurisdiction of the ecclesiastical court in crimes and misdemeanors against the duties of their rank and even in criminal offenses, except for murder, robbery and red-handed theft, for which after the ecclesiastical trial the perpetrators were subject to criminal punishment. In general, in ancient Russian law the prevailing principle was that the jurisdiction of the church was determined not so much by the essence of the cases themselves, but by the class character of the persons: clergy, as primarily ecclesiastical, were judged by the church hierarchy. The reasons for this are clear: on the one hand, the secular government had neither internal authority, nor positive grounds for trial of clergy guilty of violating the duties of their rank, determined exclusively by church laws; on the other hand, according to the concepts of that time, it was considered indecent to hand over spiritual shepherds to the judgment of the laity in such matters where morality is in the foreground, where imputation (judgment about the moral motives of an act) is required: this was recognized as a humiliation of the dignity of the pastoral title. That is why the church most of all defended the inviolability of its jurisdiction over clergy. In the Moscow period, the exclusive jurisdiction of the clergy of their hierarchy was elevated to a general law for the lands subject to the Moscow Grand Dukes. In the Code of Laws of Ivan 3 and 4 we read: “but the priest, the deacon, the monk and the monk, and the old widow who feeds from the Church of God, then the saint judges.” Council of 1551 (Stoglav) on the issues of Ivan 4 about the hierarchical courts, i.e. about the space of the church court in the Muscovite state, cited a long series of sources of Byzantine and Russian church law (by the way, the entire charter of Vladimir) as proof of the inviolability of these courts and accepted as a rule the jurisdiction of clergy “hierarchs” in all criminal cases, except for murder, robbery and red-handed theft. At the same council, two categories of episcopal courts were established: one for the clergy, the other for the laity, insofar as the latter were subject to the jurisdiction of the hierarchal court. The stated decrees of Stoglav were confirmed by the Great Moscow Council of 1667. On the issue of trial and punishment of clergy and persons of the monastic order “involved in murder, theft, money matters” (counterfeiting of coins), the council determined that the initial condemnation and punishment of the perpetrators should belong to the church authorities, which, having deprived such criminals of the clergy, delivers them into the hands of a secular court for punishment according to criminal laws. This procedure for the trial of clergy accused of criminal offenses was then approved by the newly specified articles of 1669. Here it is prescribed that criminal detectives should, upon the “seizure” of clergy accused of any crime, immediately let the ordering clergy know about it, i.e., the spiritual investigator who is filming the interrogation, “and the secular detective should not question the clergy himself.” If the accused did not confess to the spiritual customer, then the latter would send him chained and in custody to the diocesan bishop with an exact statement of what he was accused of. If the bishops themselves send the criminal to a criminal detective with the announcement that he has been removed from the priesthood, then the trial will be carried out according to the ordinary criminal procedure. Children of clergy and sextons, as uninitiated persons, are subject, according to the “newly specified articles,” to a secular criminal court; This was already a limitation of the St. Charter. Vladimir. The criminal spiritual court existed in this form until Peter V. According to the establishment of the Holy Synod, most of the criminal cases in which persons of all classes in general were subject to jurisdiction before the church were assigned to general courts. The authority of the church regarding the laity is limited only to cases of blasphemy, heresy, schism, sorcery, marriages entered into by children under the coercion of parents or serfs, under the coercion of masters, and forcible tonsure into monasticism (Reporting points of the Synod on April 12, 1722, Highly approved). Subsequently, under Catherine II, many of these cases were referred to general criminal courts, but the change in jurisdiction of these cases was not accompanied by corresponding transformations of substantive law. Hence it happened that our current criminal code adopted rules on dual, so to speak, jurisdiction for known crimes. Namely, in the code and punishments, the rule is kept to subject for crimes once judged by the church, not only to criminal punishment, but also to church repentance, the types and duration of which are determined by the spiritual authorities (Ul. about nak. art. 58, note 1). According to the current statute of criminal proceedings, such crimes include: a) crimes against faith (1004–1010) and b) crimes associated with violation of church rules (1071–1076). The participation of the ecclesiastical court in the proceedings of cases of this kind is for the most part limited only to determining the measure of church punishment. Sometimes the spiritual authorities take the initiative to initiate cases of crimes against faith and the church, which are now being tried in criminal court; Thus, in the case of seduction from Orthodoxy into schism or heresy, the spiritual authorities, upon inquiring about it from the church clergy, demand a preliminary investigation through a judicial investigator, and not a single investigator has the right to refuse to fulfill this requirement (Ust. Criminal Court. Art. 1886 and 1888). If a schism or heresy does not have a character according to which the law recognizes them as especially harmful, then the whole matter of seduction is limited only to the fact that those who have been seduced are admonished and admonished by the spiritual authorities (that is, the case does not reach a criminal court). If these admonitions are unsuccessful, those who have seduced themselves are not brought before a criminal court, but only certain measures are taken against them, limiting them in the enjoyment of the rights of their estate, and their estate and young children are placed under guardianship (Ust. gr. court. art. 1084; legal code. art. 185 and 188). Cases Cases on crimes against the marriage union also relate to cases of mixed jurisdiction: the criminal court decides these cases on the basis of criminal laws, and the spiritual court - on the basis of church rules. A remarkable feature is the jurisdiction of cases based on a complaint by one of the spouses about the other’s violation of the sanctity of marriage through adultery: depending on the purpose of the claim, these cases are handled either exclusively by a criminal court, or exclusively by a spiritual court. If the offended spouse asks only for the punishment of the guilty person according to criminal laws, then the case is within the jurisdiction of the criminal court, the verdict of which is communicated to the spiritual authorities to bring the guilty person to church repentance (St. about nak. art. 1585); if the offended spouse asks for a divorce, then the case goes to the spiritual court (Constitution of the Criminal Code of the Court, Art. 1016). The necessary legal consequence of both claims is that whoever, on the indicated basis, began a case in a criminal court, loses the right to file a claim in the spiritual, and conversely, whoever turned to the spiritual authorities with a claim for dissolution of the marriage cannot seek in a criminal court to punish the perpetrator under criminal laws. Finally, even now, all those crimes and misdeeds of the laity are exclusively subject to the spiritual court, for which in our laws (St. about nak.) only church repentance is defined, and no criminal punishment is prescribed. The Penal Code provides for several such misdemeanors and crimes. These include 1) avoidance of confession and communion due to negligence and negligence (Articles 207 and 208); 2) failure by parents to fulfill the obligation to bring their children who have reached the age of seven to confession (Article 209); 3) non-compliance by foreigners who have converted to the Orthodox faith with the statutes of the church and their observance of previous heterodox customs (Article 207); 4) fornication, or illegal cohabitation between an unmarried woman and an unmarried woman (Article 994; 1597); 5) accidental, that is, not only not premeditated, but also committed without any negligence, and even repentance according to the law is imposed only at the own request of the killer (Article 1470); 6) attempted suicide stopped by extraneous circumstances (Article 1478); 7) failure to provide possible and safe assistance to a dying person (Art. 1521); 8) a false oath given in court without the intention of harming the defendant (240); 9) parents forcing their children into marriage or monasticism (Article 1586). It is clear that none of the cases now indicated contains a crime in the proper sense of the word. The state submits these acts or inactions to the judgment of the church, of course, because they contain a violation not of criminal, but of moral law. On the other hand, there is no doubt that the indicated cases do not by any means cover the entire range of cases that are essentially subject to the punitive judgment of the church. These cases were included in the Code of Punishments according to tradition, as random fragments of the old outdated law, which was in force until the time of Peter the Great. But while, however, such cases will be provided for by our criminal laws, until then in formal law (i.e., in the laws of criminal proceedings), a reservation is necessary that those crimes and misdemeanors for which only church repentance is defined in the laws (i.e., in the Code of Criminal Procedure) are subject to the spiritual court (Charter of the Criminal Court, Art. 1002). Thus, this clause contains only a negative definition of the department of the criminal court in relation to the church court, but not a direct and precise indication of the boundaries of this latter. The Church judges and punishes all acts of its members that contain a clear violation of purely church statutes - this is the general formal definition of what is within the jurisdiction of the Church by virtue of its power to bind and decide. Without a doubt, Ust wants to say the same thing. Spirit. Cons. with its following definition: “People of secular rank are subject to diocesan court for misdeeds and crimes that subject the perpetrator to church penance” (Article 148, paragraph 2 lit. g). But the charter of the Spiritual Consistories does not eliminate all such offenses and crimes. Yes, this is hardly possible. Manifestations of evil and vicious will that are contrary to church rules and regulations can be endlessly varied. Therefore, it should be left to the judgment of the spiritual judge to what extent the known act of a member of the church, as such, violates the law of God or the church. For example, the church rules do not directly provide for the following case: someone gets drunk after confession, but before communion; but in the morning, the next day, with all the signs of a hangover, noticeable to others, he comes to church to receive St. Tain: there is no criminal offense or police misconduct here, but from the point of view of church law, this is a deep and at the same time obvious insult to the greatest Christian shrine, for which the perpetrator must, of course, be subjected to well-deserved church punishment. As for the criminal jurisdiction of the clergy, Peter the Great, upon the establishment of the Synod, ordered: “a civil investigation should be carried out regarding clergy convicted of an obvious crime, and only for removal of the rank should they be sent to the Synod; the same clergy who are accused of some private crime (i.e., personal offense, petty theft...) are sent to the Synod, where they are tried until the matter comes to a search, and if a search is not required, then the case is completed in the Synod itself. In subsequent reigns, the clergy was subject to more or less general criminal jurisdiction. In this regard, the reign of Anna Ioannovna is especially remarkable. Also, contrary to the law of Peter V., she ordered her courts to judge priests and deacons who said their famous “word and deed” while drunk. This command was motivated by the fact that the Synod punishes this crime out of respect for the clergy, not with a whip, but with whips. The law of Peter was restored by Elizabeth: cases of private complaints against clergy were returned to the Synod. In general, at this time the clergy enjoyed the protection of the government more than before. So in 1774, the Senate prohibited governors from “bringing clergy to their court and inflicting fatal and abusive beatings on them.” According to the current statute of the Spiritual Consistories, the criminal jurisdiction of the clergy is defined as follows: Persons of the clergy are subject to diocesan court: 1) for misconduct and crimes against office, deanery and good behavior, 2) for complaints about personal grievances (Article 148, paragraph 1 lit. a and c). Then, in the judicial statutes on November 20, 1874, the rule was retained that clergy are subject exclusively to church court for violation of the duties of their title established by church rules and other regulations in force in the ecclesiastical department (statutory corner court, art. 1017). This rule, common to all Christian legislation, is based on the principle that the rights and duties of clergy, as church states, are determined by the church itself and only one church, therefore, it must also be the judge of crimes of persons of this state against the duties of their title. Further, in the same 1017th Art. ug. court. Those illegal acts of clergy, for which the laws determine to subject them to responsibility at the discretion of the ecclesiastical authorities, are also left under the jurisdiction of the spiritual court. By laws here, of course, one cannot mean anything other than the articles of the Ordinance that we have outlined here and now. Spiritual Consistories. These articles were not repealed by any later legislative act: on the contrary, they were directly meant when editing Articles 1017 and 1018. mouth ug. court. Therefore, they were retained without any change in their wording and in the new edition of the statute of the Spiritual Consistories on April 9, 1883. So, according to the current laws, clergy are subject to the court of their superiors, and not to the criminal: 1) for crimes against decency and good conduct (this means, as Nekhlyudov rightly defines in his “Manual for Justices of the Peace”, of all the offenses within the jurisdiction of the magistrates, from the department of these latter, in relation to clergy, all the offenses specified in the articles of the “Charter on Punishments Imposed by Justices of the Peace” dated 35 to 51); 2) based on complaints from clergy and secular persons about them being offended, that is, in personal insults by word or action. This rule is based on the canonical position that a cleric who offends someone by word or action not only commits an act that is morally prohibited and legally punishable, but at the same time more or less deeply insults the dignity of the dignity he bears (Apostle 25, two. 9). That is why, according to our laws, cases of this kind cannot be terminated by reconciliation of the parties (Ust. Spirit. Cons. 204) and cannot be filed in a civil suit (Vol. X, Part 2, ed. 1876, Art. 6 in note). In any case, the guilty cleric must suffer the punishment specified in the laws. But for criminal offenses, clergy are subject to the jurisdiction of the general criminal court, but with various exceptions from the general rules of criminal proceedings specified in articles 1020–1029 of the charter (they are kept in custody, separately from other prisoners, all investigative acts about clergy brought to criminal trial with the participation of jurors are first sent by the prosecutor for consideration by the ecclesiastical authorities, who communicate their opinion about the culprit and this opinion, according to the request of the prosecutor and defense can be read in court, etc.) Doctrine on Church Punishments The essence of church punishment, as we noted before, is that the offender of church cacons is deprived of either all or only some of the rights and benefits belonging to him as a member of church society. Hence the common name for these church punishments: “excommunication.” It can be either complete, consisting in the complete exclusion of the criminal from among the members of the church, or incomplete, small, when the guilty person is deprived of only some rights and benefits at the disposal of the church. Great or complete excommunication is not, however, permanent and irrevocable: it has the goal, like all church punishments, only of the moral correction of the criminal, and if the excommunicated person, aware of his spiritual loneliness and helplessness outside the union with his brothers in faith, again seeks union with the church, then he cannot be cruelly rejected (ap. 52). The canons require only that the excommunicated person seeking reunification with the Church should present to her clear and undoubted evidence of his repentance. For this purpose, the ancient church established reunion for those excommunicated from church society, public repentance, which passed through several degrees, namely through the following four degrees. At the first and lowest level were the so-called mourners. They stood outside the church, that is, at the church doors, in the open air, which is why they were also called overwhelmed. Dressed in “sackcloth,” that is, hair clothing, they had to prostrate themselves before those entering the church and ask for their prayers for themselves. Next came the so-called listeners. They were allowed into the church for a while to listen to St. Scriptures and teachings, and before the start of the liturgy, the faithful were expelled from the church. The third degree of public repentance was occupied by the so-called sufferers. They remained inside the church for some time after the audience had left and took part in general prayers, some of which were said for them. They had to listen to these last prayers with their faces on the church floor, hence their name “crouchers.” Then, after finishing these prayers and receiving a blessing from the bishop, they left the church. The last category of penitents were those standing with the faithful. They remained in the church throughout the duration of the service and only did not have the right to begin Holy Communion. Tain, which is why they differed from the faithful. Having passed these four degrees, the penitents were again accepted by the bishop into full ecclesiastical communion and allowed to receive the sacrament of the Eucharist. From here it is clear that public repentance was not in the proper sense a punishment: it served only as a means to reunification with the church, and therefore in the ancient canons repentance is called healing of the soul, and not punishment (VI Om. 102, Vas. Vel. 3, Grig. Niss. 8). In the first times of Christianity, those excommunicated for serious crimes: for idolatry, murder, adultery were not suddenly allowed to repentance itself, but were accepted into full church communion only at the end of their lives (I Om. 13, Ank. 16, Neoc. 2, etc.) The ancient canons precisely defined the normal period of public repentance for various crimes, depending on their severity: from twenty to two years. But this period was not unconditional: it could be shortened or extended, depending on the moral state and other circumstances of the penitent, for example in the case of a dangerous illness. The described discipline of spiritual repentance at the end of the 4th century underwent an important transformation in the Eastern Church under Patriarch Nektarios. Instead of the previous four degrees of public repentance, two types of church excommunication remained in practice: great and small. By “small” was generally meant a temporary excommunication from receiving the sacrament of the Eucharist, combined with home church penance (fasting, prostrations, giving alms, etc.) And the great excommunication was that which was still combined with public repentance. It is in this form that the discipline of church repentance passed from Greece to us in Russia. Until the time of Peter the Great, secular legislation did not interfere at all in this area of ​​ecclesiastical law. Peter the Great touched upon this subject for the first time. According to the Spiritual Regulations, minor excommunication from the church should consist of the temporary removal of the excommunicated person from participating in public prayer, prohibiting him from entering the church and receiving Holy Communion. Tain. This ecclesiastical punishment should be imposed by the diocesan bishop for a great and obvious sin, for example, when someone behaves outrageously in church, moves away from the church by a house, etc. The bishop himself, personally or through a confessor, must exhort such outrageous people to bring public repentance, but if they do not obey these convictions, then he excommunicates them, without any solemnity, however, writing the guilt on the “small charter” the offender and the reason for excommunication. At present, minor excommunication is understood in all those cases where the laws speak of church repentance as punishment for well-known misdeeds and crimes. In this sense, church repentance can be an independent punishment, when it is prescribed directly by the diocesan authorities for crimes and misdemeanors that are exclusively within their jurisdiction - it can be an addition to criminal and correctional punishments based on sentences of a criminal court. In both cases, the types of church repentance and the terms of its continuation are determined by the church authorities according to church laws (Punishment Code, Article 58, note 1). But church practice since the time of Peter the Great has not developed any definite rules about how church repentance should be carried out, whether it will be ordered by the spiritual court independently or as a result of a sentence pronounced by the Criminal Court on the basis of such an article of the Penal Code, where, along with criminal punishment, it is also required that the guilty person be brought to church repentance. Therefore, it often happened that for well-known crimes in one diocese, church repentance took place at the place of residence of the perpetrator at the parish church, and in another - for the same crime, a person devoted to church repentance was subjected to exile to a monastery. And it must be said that the latter has become almost a general rule. Meanwhile, such penance was associated, of course, with great inconvenience both for the monasteries themselves and for those condemned to church repentance. As a result of this, in St. The Synod often received complaints that by imprisonment in monasteries, merchants and villagers were separated from their occupations, and families from their families, through which they were subjected to great inconvenience and sometimes ruin, especially in sparsely populated areas (for example, in Arkhangelsk province), where the very sending to a monastery was associated with great costs. Under such circumstances, the very goal of repentance was not achieved, since instead of repentance only bitterness was aroused, and the monasteries, in turn, were embarrassed by the accommodation of penitents. As a result of this, St. The Synod, by a circular decree of July 11, 1851, ordered the diocesan bishops: 1) to enter into a detailed consideration of those cases in which people of secular rank, as a result of a decision of the diocesan authorities or by sentences of criminal courts, are kept in monasteries under penance, and if, according to such consideration, no difficulties arise, then those kept in monasteries should be brought to repentance at their place of residence under supervision confessors; do this with all penances, excluding those who are sent to the monastery for repentance according to special Highest commands; 2) for the future, in cases for which church penance should be imposed, pay attention to the situation of the defendants, and assign them to monasteries only when this turns out to be necessary either due to the nature of the crimes themselves or by proving the failure of performing penance at the place of residence. After this decree, the number of persons of secular rank held in monasteries under penance, although it began to decrease, was still a significant figure. Thus, in 1864, 286 persons were held in monastic imprisonment, and in 1865 - 202, in 1866 - 193. If we simply take into account that in addition to persons of secular rank, clergy are also subject to monastic imprisonment, of whom up to 1000 people are annually detained in monasteries in all dioceses, then one can imagine what a heavy burden these penances must have served for the monasteries. Therefore, in 1868, on March 18, a new synodal decree on this subject was held, which undoubtedly constitutes an era in the history of our criminal law. The decree makes a precise distinction between such misdeeds and crimes, for which the punishment code directly defines imprisonment in a monastery, and those for which only church repentance and reference to the spiritual authorities for admonition and admonition are required. The number of the latter, of course, was always greater than the number of the former, meanwhile, according to the information available in St. Synod, it turned out that most of the Epithemeites were kept in monasteries for crimes for which the laws generally require church repentance and edification through confessors. Thus, for example, out of a total of 212 people held in monasteries in 1865, only 63 people were prisoners according to the exact meaning of the subject articles of the Code. about punishment, the rest (with the exception of 15, who were kept in monasteries by special Highest commands) and 2 people for failure to fulfill spiritual penance at the place of residence, a total of 132 people, were kept for such crimes and misdemeanors for which such punishment is not prescribed in the Code and Punishments. Based on these data, St. The Synod, in the cited decree, decided: 1) to immediately release from monastic confinement all those persons who were not held here by special Highest commands and not according to the exact meaning of Articles 138, 1549, 1585, 1593, 1594, 1597; 2) so that from now on only those persons of secular rank will be subjected to detention in monasteries, whose imprisonment will be carried out by the Highest command or a verdict of a criminal court (according to the articles now listed). Then, all persons of secular rank, subject only to church repentance in general, will have to undergo this repentance in their places of residence under the supervision of their confessors; and only when it becomes clear that the penance performed on the spot does not lead to the goal of moral correction of the penancers, send them to the monastery on the basis of the decree of 1861. In this form, according to our church and civil laws, we practice that type of church punishment, which is usually called minor excommunication. Let us now move on to the extreme church punishment - great excommunication, otherwise anathema. It consists in completely cutting off a criminal member of the church from her body so that for believers he becomes, according to the words of Christ, the same as a pagan and a tax collector (Matthew 8:17). The Spiritual Regulations of Peter the Great define anathema in an original way: “through anathema,” the Regulations say, “a person is made like one killed (i.e., anathema is the same as political death), and by excommunication or prohibition (i.e., minor) he is made like one taken under arrest.” Anathema, as an extreme spiritual punishment, is subject, according to church rules, to all heretics who are stubborn in their opinions, all those criminals against the church and the law of God, in relation to whom penance can no longer take place as a means of correction (Peter Alex. 4). It necessarily follows from this that the great excommunication can be pronounced against a criminal member of church society only after a decisive inquiry about his unrepentance. Our Spiritual Regulations prescribe the same. Determining anathema to all those who clearly blaspheme the Name of God, St. Scripture, the holy church, its Sacraments, or commits another public crime against the law of God. The Spiritual Regulations describe in detail the entire ritual of imposing anathema. First, the diocesan bishop must send his confessor to the person worthy of anathema, so that he can privately persuade him to correct himself; if this does not lead to anything, the bishop must call the culprit to himself and repeat the admonition to him personally. If the culprit does not respond to this call, several clergy and secular persons are sent to him, mainly those who are connected with him by ties of kinship or friendship. The failure of this measure leads to the announcement in the church of the name of the criminal and his guilt. This announcement is made through the protodeacon and is accompanied by a request from the clergy that all the friends and relatives of the criminal take measures to persuade him to repent. If this does not lead to the goal, then the bishop reports everything to the Synod and, having received permission from it, pronounces an anathema, which must be declared throughout the diocese and generally made known so that the excommunicated person is not accepted into the church anywhere and the clergy does not come to him with demands and prayers. However, the stated prescriptions of the Spiritual Regulations were practiced in our country not so much against church members as against political criminals, and, moreover, not only against the living, but also the dead. For example, Grishka Otrepiev, Stenko, Razin, Mazepa and others were anathematized. Consequences of excommunication In the sphere of purely ecclesiastical or canon law, excommunication is accompanied by: 1) loss of all rights belonging to a member of the church; therefore, if the excommunicated person dies in a state of excommunication, then he is deprived of the right to a church burial (Nomok. at Required Rights. 77). However, the doors of church repentance must be opened to the one subjected to anathema, through which he can again enter into communion with the church: for Christ came to save not the righteous, but sinners (Apoc. 52). 2) Whoever has once been subjected to great excommunication is forever deprived of the legal capacity to receive church hierarchical rank, at least later, after repentance that occurred during excommunication, he was again accepted into church society. The civil consequences of excommunication can, of course, only occur where secular law allows them. It is known that in the Middle Ages, anathema entailed the so-called political death, and all those subjected to anthema, namely heretics, were subject to the death penalty, mainly by burning. At present, in all European states, excommunication for the most part is not accompanied by any civil or political disadvantages. In our country, according to the legislation of Peter the Great, those who were subjected to a minor excommunication were interpreted as having been defamed, and to a great excommunication – as having suffered political death. But the code of laws on anathema and its consequences does not contain any regulations. As for minor excommunication, the current legislation can only indicate the following cases when this excommunication has unfavorable legal consequences. 1) Those excommunicated cannot be attorneys for affairs (Constitution of civil court, art. 45, clause 8); 2) are not allowed to testify under oath (Civil Court Charter, Article 83, paragraph 6 and Criminal Court Charter, Articles 95 and 106). Church punishments to which clergy are subjected primarily affect their special rights and advantages, which distinguish them from the laity. What for the laity is temporary excommunication from the church or from St. Sacraments, then for clergy there is a prohibition of priestly service and removal from office, and complete excommunication of the laity from the church corresponds to deprivation of the priesthood. Just as the first punishment is not accompanied by the relegation of the cleric to the category of penitents, so the latter is not accompanied by complete excommunication from the church, for in both cases there would be two punishments for the same crime. Thus, as long as a clergyman remains in his rank, according to church canons, he cannot be subjected to church punishment prescribed for the laity. The degree of canonical punishment for clergy is determined in the following order. Firstly, the ban on religious service. According to our charter of Spirits. In a consistory, this prohibition can be either with removal from place and position and the relegation of priests and deacons to the position of clerics, or without removal from place and position, but with the imposition of penance in a monastery or at one’s parish church (Article 176, paragraph 3:4). If the period of prohibition is not defined by law, then it obviously has the nature of a corrective measure, the effect of which ceases as soon as the guilty person is found to have reformed. But sometimes the period of prohibition is directly specified in the law, and in this case it takes on the nature of a vindicative punishment in the proper sense of the word. Thus, for the wedding of persons who have not reached the age of marriage, clergy and clerics are punished by exile to a monastery: the priests for half the time that those getting married lacked before coming of age, and the deacon and clerics for half the time that the priest was sent. And if more than a year is missing from coming of age, then the priest is removed from his position and demoted to the clergy according to the same calculation of time (Ust. Spirit. Cons. 188). In some cases, clergy are prohibited from performing religious services not in the sense of punishment, but as a provisional measure, namely, if a clergyman is accused of some misdemeanor or crime, then he is prohibited from performing religious services, even if the illegal act had not been proven and the accused could have been acquitted (Sard. 14, Carth. 28 and 847). This prohibition is prescribed by the ancient canons in order to eliminate the temptation that would accompany the service of a person under strong suspicion for the people. The same rule is kept in our Charter of the Spirit. Consistory, which says: “A clergyman accused of a crime is prohibited from serving in the priesthood, depending on the circumstances that are included in the clause and revealed during the investigation. The order regarding this is entrusted to the sole discretion of the diocesan bishop, who is obliged to ensure that those accused of known crimes against piety do not begin to serve the altar of the Lord, as soon as there is already sufficient reason to ensure that they are accused fairly” (Article 159). It goes without saying that the prohibition can extend to clergy of all degrees, and therefore to the bishops themselves. In addition, it may consist either in the prohibition of all actions to which the cleric is entitled by his rank, or in the prohibition of only some of them. Thus, the first ecumenical council in Canon 8 forbade bishops who turned to the church from a schism to perform the so-called pontificalia, i.e., sacred rites that exclusively belong to bishops and in which bishops differ from priests. But the same council allowed them to perform other sacred rites on an equal basis with priests. As a corrective punishment, the ban on priestly service is imposed for comparatively unimportant crimes of clergy against office, decency and good behavior, as well as for causing offense to someone by word or action. The extreme canonical punishment for clergy is defrocking or deposition from a degree (καθαίρεσις, depositio). In its canonical meaning, this punishment is equal to the great excommunication of the laity from the church. It is defined both for crimes against the rules of the priesthood, and for those general crimes for which the laity are subject to excommunication. According to our current church punishments, deprivation of clergy can be in two ways: either with exclusion from the ecclesiastical department, or with retention in the ecclesiastical department. Clergymen are deprived of their rank and together expelled from the church department in cases of committing a criminal offense, for which the punishment code defines deprivation of all rights of state. If clergy are defrocked by the court of their superiors for purely canonical crimes, then they are retained in the church department and assigned to lower positions: sextons, sextons, bell ringers, church watchmen, etc. If they are not corrected in these positions, they are completely excluded from the ecclesiastical department and are reported to the civil authorities for inclusion in the taxable estate, if they do not have the rights of hereditary nobility by birth or by orders. Chapter 2. Church judicial system and legal proceedings Church court instances The principle of separation of the court from the administration is completely alien to canon law. The organs of both are the same. Thus, the judicial power in each diocese, according to the canons, is concentrated in the person of its ruler, i.e., the bishop (Apostle 32, 1 Ecum. 5, etc.). However, the bishop, according to the same canons, is not a sole judge: he is obliged to be guided in his judicial activities by the advice of his presbyter, i.e., the senior priests of the cathedral city. This is how the composition of the episcopal court is depicted in the apostolic decrees known to us (book 2, chapter 48). The canons allow an appeal to the regional council against the decisions of this court (Chalc. 9, Sard. 14, etc.). But the council is not only an appellate instance, but also the first - for the trial of the bishops themselves based on complaints from clergy and laity (Apostle 74, Nik. 5, 1 Const. 6, etc.). From here the appeal goes, according to the canons, to a perfect or complete council, representing the entire hierarchy of a given autocephalous church (Antioch. 15, Chalk. 9, etc.). From the very beginning, the Russian Church knew only two instances: church administration and church court, namely the diocesan bishop and the metropolitan, who was later replaced by the patriarch. The last authority, that is, the patriarch who replaced the previous metropolitans, now appears to be St. Synod. The diocesan court, according to current law, finally decides the following cases: 1) cases of clergy accused of such misdeeds and crimes for which they are subject only to corrective or disciplinary punishment (Ust. Spiritual Cons. 174); 2). The decisions of the diocesan court in all other divorce cases are subject to preliminary revision and approval by St. Synod. Proceedings in the spiritual court Proceedings in the diocesan court vary depending on the rank of the defendants and the merits of the cases themselves. Cases of misconduct and crimes of clergy against office, deanery, and good behavior can begin according to reports from public places or officials, according to reports from deans or members of the clergy, at the request of parishioners, according to complaints from clergy or secular persons, according to comments in the clergy registers, according to information that can reach the diocesan bishop, and, finally, according to the own admission of the guilty (Art. 153). Depending on the essence and method of accusation, the trial of a clergyman can be directly episcopal, or consistory. The bishop judges, without the participation of the consistory, unimportant offenses of clergy, corrected by moral suggestions and inconveniently exposed to publicity and formal trial, in a word, offenses not associated with obvious harm and temptation, and, finally, complaints brought to the bishop against clergy, precisely so that the accused is subjected to secret suggestion or punishment. In such cases, the bishop may limit himself to either a verbal reprimand to the accused or imposing penance on him. Neither one nor the other is included in the formal lists (Article 155). The formal trial is carried out exclusively in the consistory according to the old investigative procedure. The appointment of a spiritual investigator depends on the diocesan bishop, whose discretion is also given to taking a provisional measure against the accused - prohibiting him from performing sacred acts until the end of the investigation and trial (Articles 158, 159). The defendants and persons involved in the case are given the opportunity to read the investigation carried out on the spot, sign the sheets and explain in their signature whether they are satisfied with the investigation, and if they are dissatisfied, then why (Article 161). The consistory, having received the investigation, examines it from the formal and material side, i.e. whether it was carried out in accordance with established forms and rules, whether it fully explains and covers the case, and if the defendants or persons involved in the case made signature objections to the completeness or correctness of the investigation, whether these objections were taken into account. If there are any shortcomings, the Consistory orders that the investigation be completed by the previous producers or others (Article 162). In addition, the Consistory, either directly or through investigators, carries out additional interrogation of the defendants even if their testimony during the initial interrogation appears for some reason to be incomplete and unsatisfactory (Article 169). About the slowness or incorrectness of the actions of the investigators or the Consistory, the defendants can bring complaints to the diocesan bishop, and in case of dissatisfaction from him - to the saint himself. Synod (Art. 167). If, by decision of the diocesan authorities, clergy are condemned to be defrocked, and clerics are to be expelled from the ecclesiastical ministry, then both are given a seven-day period to declare pleasure and displeasure regarding such decisions. If the defendant declares pleasure or, having declared displeasure with such decisions within the specified period, does not file an appeal within a month, the decision is carried out and the Synod is informed about it, if the defendant is a clergyman. If an appeal review is filed within the legal period, the execution of the decision is stopped, and the entire case, along with the review, is submitted for revision by the St. Synod (Article 172). Proceedings in ecclesiastical courts for misdemeanors and crimes of lay people within the jurisdiction of the church are no different from proceedings in cases involving clergy. But it is necessary to consider in detail the proceedings in marriage matters. These cases are of three types: 1) divorce cases, 2) on the recognition of marriages as illegal and invalid or, what is the same, on the annulment of marriages and 3) on certifying the validity of the legality of the event of marriage and on births from a legal marriage. The proceedings of cases of this kind are not the same, depending on the difference in the reasons for which these cases begin. Namely: 1) cases of divorce due to adultery and inability to cohabitate in marriage are given in the following order. Upon receipt of a request for divorce, the diocesan authorities first instruct the agreed clergy to admonish the spouses so that they end their disagreement through Christian reconciliation and remain in the marital union (Article 240). When the exhortations do not achieve their goal, formal proceedings are opened. The parties must appear in court in person; attorneys are admitted only due to the illness of the plaintiff or defendant, certified by the medical department of the Provincial Board, due to absence on duty or in other respectable circumstances, and then only by a special determination of the diocesan authorities (248). 1. Proceedings in cases of divorce due to adultery begin by issuing to the defendant a certified copy of the petition and setting a deadline for the parties to appear at the Consistory for a court settlement. The adversarial speeches of the plaintiff and the defendant are recorded in a special notebook and signed by them, or by their trust, by others, if they themselves are illiterate (Article 246). At the same time, documents, if any, serving as evidence of the parties are presented and witnesses are heard. Witnesses located in the place where the case is being carried out are interrogated in the Consistory under oath, by representatives of the civil department under the civil deputy. Absent witnesses are interrogated at their place of residence, or at the Police, according to questions sent by the Consistory conducting the case. Witnesses may be recused if the reason for the recusal is considered valid by the Consistory. The significance of the evidence is determined as follows: “the main evidence of the crime must be recognized as: a) the testimony of two eyewitnesses and b) the residence of children outside a legal marriage, proven both by metric acts and arguments about an illegal relationship with an outsider. Then, all other evidence, such as: letters revealing the criminal connection of the defendant, testimonies of witnesses who were not eyewitnesses to the crime, but knew about it from reliable information or rumors, testimonies of search people about the depraved life of the defendant and the weapon, can only have their force when they are combined with one of the main evidence or, in their totality, they reveal a crime” (249). The defendant’s own confession of violating the sanctity of marriage by adultery is not taken into account if it is not consistent with the circumstances of the case and is not accompanied by evidence (Article 250). As for inability, it can only be established by a protocol of examination in the presence of a Doctor. Dept. Lip. Right (Art. 244). At the end of the court settlement, a note from the case is drawn up and offered to the parties for submission. Then follows the decree of the decision, which is announced to both parties (Articles 252–254). A party dissatisfied with the decision has the right to appeal to the Synod within two months (250). But regardless of the appeal, all decisions of the Consistory on the dissolution of marriages for adultery and incapacity are submitted for revision by the Synod (Articles 237 and 256). The disadvantages of the described divorce process, so to speak, are striking: 1) it is extremely embarrassing for the litigants due to the complete elimination of representation. The requirement for the personal appearance of the spouses is explained by the need to exhort them for reconciliation, but the exhortation itself under such circumstances can hardly achieve and in fact never achieves its goal. In any case, it could be carried out at the place of residence of the spouses through their spiritual fathers. 2) It does not achieve the goals of justice due to the strictly formal nature of the evidence, especially with regard to adultery, it is obvious that all the so-called “non-main” evidence (letters from spouses, testimonies of witnesses, non-eyewitnesses, etc.), if they are valid only “when they are connected with one of the main ones, or when they discover a crime in their entirety,” in the first case are unnecessary (because the main evidence itself decides the case), and in the second, they seem almost impossible, since “totality” can only be a matter of a rare case, and it cannot detect a crime. What remains, therefore: 1) eyewitnesses of the fact, which least of all suggests the possibility of obvious evidence of it and 2) the adoption of illegitimate children, proven by registry books and arguments about an illegal relationship; but which of the spouses will call himself in the metrics the father or mother of an illegitimate child, and what arguments about an illegitimate relationship can be successful under the formal theory of evidence? The results of this system of evidence in relation to the court itself are the following: a) its passivity and indifferent attitude towards the case, because the judges who decide the case are eyewitnesses; b) violence against the conscience of judges, who are obliged by this formal truth to often make decisions that are materially unfair, which entails c) a decline in the authority of the spiritual court. In relation to the parties, the sad consequences of this theory of evidence are reflected in the extreme difficulty, almost impossibility, of conducting such processes, and this, as life and practice shows, usually leads to bribery of “eyewitnesses”, to a false oath of the latter, and often to the worst - an attack on the life of the hated spouse. 2) Cases of divorce due to the unknown absence of one of the spouses begin with the filing of a petition by the remaining spouse to the local Consistory, which must indicate: 1) where, since the time of marriage, the spouses have lived permanently or temporarily, jointly or separately; 2) when and where the spouses last saw each other and under what circumstances the absence of the unknown spouse began, when and where the latest information about him was received; 3) whether both spouses have any real estate, what kind and where; 4) what state both spouses belong to, what occupation or service the absent spouse had, whether the parents of both spouses are living and where they live; whether the spouses have other relatives, where they live and whether they have real estate. If there is something the petitioner cannot mean due to ignorance, then he must mention it in the petition. Without this mention, in the event of any deficiency in the testimony of the petitioner, the proceedings on the petition are suspended, and the petitioner is invited to deliver the missing testimony in writing or to state it orally to the Consistory within a designated period of time, not exceeding six months. The petition must certainly be accompanied by an extract from the registry register about the marriage in such and such a church and in such and such a year. In addition, the petitioner may provide any written evidence certifying the unknown absence of the spouse for at least five years. Upon such a request, the Consistory sends subpoenas through the police department to the parents and relatives of the spouses and to other persons who can provide information about the absent spouse, the circumstances of his absence and his further fate and who, according to these subpoenas, are obliged to give the Consistory the required information. At the same time, by order of the Consistory, it is published in the Church Gazette, published under St. Synod and received in all parishes of the Empire, an announcement of the claim. By virtue of this announcement, all places and persons who may have information about the absent spouse are obliged to immediately deliver it to the Consistory. Upon receipt of reliable news about the location of the absent spouse, or the death of one of them, the case is terminated. And if, after a year has passed since the publication of the announcement, such news has not been delivered from anywhere, then the Consistory, at the request of the petitioner, begins to consider the circumstances of the case and, if nothing dubious is found in it, makes a decision on dissolution of the marriage and allowing the petitioner to enter into a new marriage. This decision is submitted for approval to St. Synod, if the matter concerns the marriage of persons who do not belong to the bourgeois or peasant class (Higher approval of the law. January 14, 1895, Church Ved. 37). Wives of lower military ranks, those who fled from service, were missing in action during the war and were taken prisoner are allowed to ask for a divorce after five years from the time of flight, captivity and general disappearance of their husbands. When asking for a divorce, soldiers' wives provide the Consistory with evidence from the respective police departments of the places from which their husbands entered the service, about the time when they escaped, were captured or went missing, and that these persons remain untraceable. These certificates are issued on the basis of information provided to the police departments by the commanders of individual units of the troops (Article 10, Part 1, Article 57). B. Cases on recognition of marriages as illegal and invalid The proceedings on the recognition of marriages as illegal and invalid present, in comparison with the divorce process, the following features: 1) these cases are all carried out in those dioceses in which these invalid marriages took place (and not at the place of residence of the spouses); if the marriage took place abroad, then the matter is always carried out in the St. Petersburg Theological Consistory (because all churches and clergy with them in foreign embassies are considered to belong to the St. Petersburg diocese); d) these cases are of mixed jurisdiction, that is, twofold: secular and spiritual (and not exclusively spiritual). Some of them, according to our current laws, begin in the criminal court and then are transferred to the spiritual court, others follow the reverse order (begins in the spiritual court, and then goes to the criminal court). The first category includes a) cases of marriages concluded due to violence, deception, or the insanity of one of the spouses (Const. Spirit. Cons. Art. 288, Establishment of Criminal Justice. Art. 1012). The criminal court, having decided the issue of violence or deception that took place during the marriage, communicates its verdict to the spiritual court to resolve the issue of the validity or invalidity of the marriage and to determine the responsibility of the clergy who performed the marriage. e) Cases of polygamy, i.e. marriage of persons already married. Those guilty of this are brought before a criminal court not before requesting from the Ecclesiastical Court exact information about the commission of a marriage when another already existed (Constitution of Criminal Court, Art. 1013). Then, after the verdict has been rendered by the criminal court, the spiritual court decides the issue of assigning penance to those guilty of bigamy and punishing the clergy who solemnized this marriage. Decisions of the diocesan court, allowing a person who entered into an innocent marriage to enter into a new legal marriage, are submitted to the discretion of the saint. Synod (Const. ug. court. 1013, Est. Spirit. Cons. 215). The second category of cases on the annulment of marriages, namely, those that are subject first to the ecclesiastical and then to the criminal court, includes cases about all other types of illegal and invalid marriages, namely cases about marriage in unauthorized degrees of kinship or property, about the prohibited marriage of Christians with non-Christians, about marriage before or after the age specified by law, about the fourth marriage of Orthodox Christians and about marriages of such persons of clergy rank, by which church laws it is forbidden to enter into a marriage union if the perpetrators used deception or forgery for this (Constitution of Criminal Code, Articles 1014 and 1015). It goes without saying that both courts in the proceedings of these cases follow their procedural statutes: in a criminal court, cases are conducted in an accusatory manner, and in a spiritual court, in an investigative manner. A remarkable feature is the proceedings in the ecclesiastical courts in cases of marriages concluded before the ecclesiastical age of marriage (15 pp. for the groom; 13 – for the bride): these matters can be initiated only by one of the spouses who entered into marriage during this minority. This is allowed only until the person reaches civil marriage age (16–18 years old) and only if the marriage did not result in the wife becoming pregnant (Const. Spirit. Cons. 209). B. Cases on certification of the event of marriage and birth from a legal marriage At first glance, it may seem and, indeed, it seems to many that these are not court cases at all, but simple certificates in church books. But in reality it turns out not to be so. These cases are very rarely resolved only by a simple certificate; on the contrary, a formal process often arises in them, a case arises, in the strict sense of the word, a judicial case. When, for example, objections are raised to documents certifying the validity of marriages and births from a legal marriage, or when it is proven that a given marriage, as illegal, cannot be recognized as valid, then in these cases, of course, of necessity, a judicial investigation of the case arises, leading to its resolution by the courts. These matters are according to the Ort. Spirit. Cons. are carried out in the same dioceses where, according to the submitted acts or given testimony, the marriages took place, or where the persons whose birth the case is being processed were born. The diocesan authorities are involved in the consideration of cases on the validity of marriages: 1) according to the requests of public places for certificates of affairs of this kind being carried out in them in cases of doubt; 2) as a result of private requests, when in order to certify a birth from a foreign marriage that is not included in the birth registers, a certificate of the event of the parents’ marriage is needed, 3) at the request of private individuals for the issuance of a certificate of the event of their own marriage. The main proof of the event of a marriage is its testimony in the registry books, but if the marriage is not recorded in these books, then its event is proven by a search book, confessional signatures and other documents, if it is clear from them that the named spouses were officially recognized as such and undoubtedly enjoyed for many years the civil rights and benefits that depend on legal marriage and, finally, the consequence. The investigation should include the testimony of the clergyman who performed the marriage, the testimony of witnesses who were present during the marriage, and in general persons who know about the authenticity of the marriage. In addition to clergy, spouses and their parents, all other persons give their testimony about the commission of such a marriage under oath. The diocesan authorities communicate their conclusion based on these data to those public places in relation to which this matter was carried out in the Spirit. Cons. If the case began at the request of private interested parties, and not at the request of their offices, then the diocesan authorities issue the petitioners with a certificate of those marriages, the event of which it recognizes as undoubted; otherwise, it refuses the applicant. The same procedure applies to cases regarding a certificate of birth from a legal marriage. If this birth or marriage of the parents of the person in question is not recorded in the metric books or, if the record of one or the other raises doubts, if the parents are not alive, then in addition to the testimony from the clergy who performed the baptism of such a person and in addition to the testimony from the persons who were the recipients, attention is drawn to all documents related to this person, from which one could see how his parents were recognized: as legal spouses or in an extramarital relationship, and how the birth of this person was recognized at the life of the parents and whether there was still a dispute about its legality. But according to private denunciations about the illegality of birth, the Consistory is not included in any paperwork. Canonical definition of marriage From the point of view of church law, marriage is a union of a man and a woman, blessed by the church, aimed at full communication between them of all life relations and serving, according to the Divine plan of peace, as a means of continuing the human race. In marriage, as an institution that has its basis in the very nature of man, three moments are necessarily distinguished: 1) the physical moment, consisting in the difference between the sexes, which was established precisely for their union, without which the human race could not continue and spread; 2) the ethical moment, due to which marriage, as the replenishment of one personality by another, constitutes for them the highest good in life (ἔθος); 3) a legal moment inherent in marriage because it is a union of two persons, i.e. moral and rational beings and, therefore, a union possible only under the condition of their mutual consent, combines the peculiarity of their individual life into one common life. According to the dogmatic teaching of the church, the marriage of Christians, as sanctified by baptism in their entire being (i.e. physically and spiritually) is a holy matter, a sacrament that serves as an image of the spiritual union of Christ with the church, which means - a) an indissoluble union; b) a union serving as a natural means of multiplying the members of the church, which is the mystical body of Christ. Competence of legislation and court in matrimonial matters But the natural nature and purpose of marriage did not change from the fact that in the Christian Church it received the character and dignity of a religious sacrament. This is the basis for the dual competence of legislation and the court in matrimonial matters. The purely moral and religious side of a marriage can be subject to the direct determining influence only of that power that acts on the inner spiritual side of a person, on his conscience, i.e., spiritual or ecclesiastical power. Yet the purely civil elements of the marriage union are determined exclusively by the secular or civil authority. It naturally follows from this that the competence of legislation and court in marriage matters is shared between the church and the state. The entire history of the Christian marriage institution is made up of facts that prove the constant interaction of church and state in the formation of this institution. Thus, the church, even before establishing its union with the state, recognized the validity of the norms of Roman civil marriage law, if it found them in agreement with the law of God and Christian views on the essence of marriage. Since the time of Constantine V., the church has often formally addressed the secular authorities with ideas about the need to issue on behalf of the latter one or another law protecting moral dignity and meekness, the indissolubility of the marriage union. So in 407, the Council of Carthage decided to ask the emperor to issue a law prohibiting spouses who separated without permission from entering into new marriages (Car. 115). In those cases when the church took the initiative to publish norms of marriage law, it acted in the belief that the norms it published received the sanction of state power, which usually happened. We also know that all the norms of divorce law adopted by the Eastern Church were established by secular, and not church legislation, namely the legislation of Justinian. For its part, the state authorities, recognizing the need to establish the marriage institution on moral grounds, gave wide scope to the influence of the church on all aspects of the marriage union. This influence especially intensified from the end of the 9th century, when the legislation of the Byzantine emperors, namely Leo the Wise, recognized the church form of marriage as a necessary condition for its validity in civil terms. From that time on, marriage finally acquired the character of a church institution, and already at the end of the 11th century, Emperor Alexei Komnenos referred all marriage matters as spiritual “ψυχικά” to the department of the church. But this did not mean at all that state power forever and as if on principle abandoned all participation in marriage matters. The emperors still retained the right of legislation and supreme court in these cases, and the Church never challenged this right, either directly or indirectly. For her, the main thing was to pass her demands regarding marriages into the legislation of the emperors themselves, and which court would support the operation of church or civil laws on marriages in life itself was a matter of secondary importance for the church. Therefore, it is not surprising that even after the publication of the aforementioned law of Alexei Komnenos, there are examples of marriage cases being decided not only by church, but also by civil courts. This was the case in the Byzantine Empire. The same factors, i.e., church and state power, acted together in the formation of Russian marriage law. Initially, all marriage matters, as is known from the first Russian church statutes, were recognized in our country as purely ecclesiastical, and this is because state power at that time did not have the grounds or means to transform folk marriage customs into the institution of Christian marriage. But from the time of Peter the Great, secular power began to take part, partly correcting the shortcomings of previous church practice, partly issuing new norms of marriage law, motivated by purely state considerations. The first Russian secular law on marriage matters was issued in 1702. This law abolished the so-called row or charge records that had become common practice, i.e., acts of marriage agreement concluded by the parents of the children getting married about the future marriage with the appointment of a penalty. By abolishing these row or charge records, Peter the Great gave those arranged and even betrothed by the church the freedom to refuse to marry each other. In the most recent civil legislation, the number of obstacles to marriage accepted by the church was significantly reduced. The same legislation is already in Art. 18. begins to establish new standards for divorce law, reducing the number of reasons for divorce specified in the helmsman’s book, i.e., in the laws of Justinian, which passed into our helmsman’s book. In a word, the entire institution of Orthodox marriage law in force in our country is the creation of both the church and the state. Compliance with the legal conditions of marriage established by the church and state, the form of marriage, the dissolution of a valid marriage union or its recognition as invalid - all this, according to our current laws, belongs to the field of church law; everything else, namely: the civil consequences of marriage, personal and property relations of spouses, the civil consequences of the termination of marriage, is the responsibility of the state authorities. Conditions for the validity of marriage a) Free consent of the spouses The first and most important condition for the validity of a marriage, by the very essence of this union, is the mutual consent of the parties, which was expressed in Roman law by the well-known provision: “consensus facit nuptias.” To verify the presence of this necessary condition, we have included the following questions in the wedding ceremony itself, with which the priest addresses the bride and groom: “Have you had a good and unconstrained will and a meek thought to take this (this) for yourself as your wife, even if you have seen (him) here before you?” and only after an affirmative answer from both sides does the priest begin the part of the rite that involves the moment of marriage (according to the Holy Synod, the reading of the Gospel). It naturally follows from this that neither the church nor the state can in any way recognize as valid marriages committed under duress. According to our laws, a claim for forced marriage can be initiated no later than six months from the time it was possible to file a complaint about it. Affairs of this kind begin only at the request of the most interested spouse, or his relatives and guardians (i.e. 1, part 2, art. 624). Violence is subject to criminal court, and a judgment on the validity of a marriage, which is discredited by the fact that it was committed under duress, is subject to spiritual court (Constitution of Criminal Court 1012). Deception or substitution of a person has the same meaning as coercion. Such deception is possible, for example, when marrying a blind person, unconsciously drunk, during a marriage at night, or when the bride is covered with a thick veil. The code of punishments (Article 1554) speaks of deception or substitution of a person in marriage, but only as a crime sui generis, without prejudging the issue of the marriage itself - of course, because the issue of the validity of marriages in this case is decided on the basis of church laws (Ust. Spiritual Cons. 208). The Church must recognize such a marriage as invalid already because if there is deception or a mistake in person, mutual consent of the parties cannot take place, expressed in the formula already known to us during the marriage ceremony, when the priest asks the bride and groom about this consent and at the same time draws the attention of both parties to each other (“you saw it before you”). And according to the very concept of marriage, it is necessary to assume that an expression of consent to marriage, relating not to the specific person with whom the consenter intends to marry, but to another, has no force. The meaning of the error remains the same in this case, however, whether it occurs through the fault of the erring party or by chance, or through the fault of a third party, and finally, with the knowledge of the person who is not mistaken. Since marriage is a union of persons, a mistake in person must, of course, have such a meaning that this union is invalid. b) Physical and spiritual capacity for marriage The second condition for the validity of marriages is the physical and spiritual capacity for marriage. The deficiency or absence of one or another ability may depend either on the age or on the disease state of the subject. The age at which the physical ability to marry begins is indicated by nature itself, in the state of pubertatis, i.e., sexual maturity, the ability for sexual intercourse. But since for different individuals maturity does not occur at the same time, since it is not possible in each individual case to determine whether or not the period of puberty has arrived for a given subject, this opens up for positive law the need for a presumption of such a state, and this presumption is accepted in all positive legislation. In Roman law, the period of pubertatis was assumed to be 14 years for a man and 12 years for a woman. The Eclogue of Leo the Isaurian and Constantine Copronymus, published around the middle of the 8th century, increased the age of marriage of the bride and groom by 1 year (15 and 13), but in the Prochiron of Basil the Macidonian the old definition of Roman or Justinian law was again adopted. Both of these Byzantine compilations, as is known, were included in our Slavic Kormcha (in the printed Kormcha, the prochiron occupies chapter 48, Eclogue, chapter 49). From here, of course, there should have been a difference in church practice itself, for marriage age could be determined in our country and therefore according to the other of these two sources. The Holy Synod, by decree of 1774, determined to adhere to the definition of the Eclogue. Finally, by a personal decree given by St. On July 19, 1830, the Synod forbade marriages if the groom was under 18 years old and the bride 16. But this law did not completely abolish the effect of the previous church laws: from that time on, we established a distinction between church and civil marriage ages: the latter is the general law of the empire, and the former in 1846 (Decree of October 4) was adopted for the natural inhabitants of the Caucasus region where, due to local climatic conditions, Puberty occurs earlier, which is why it is allowed to get married there if the groom is 15 and the bride is 13 years old. But church marriage age of majority has not lost its general practical significance, since a marriage contracted after the bride and groom reach this (i.e. ecclesiastical) majority, but before the onset of civil adulthood, is considered valid and is not subject to dissolution as invalid; only spouses, if the marital cohabitation did not result in the wife’s pregnancy, are temporarily separated until the onset of civil majority, upon reaching which they are united again without repeating the church wedding (Const. Spirit. Cons. Art. 218 and 219; vol. 10, art. 37 and 39). The extreme limit of old age for marriage. Establishing the above-mentioned age for marriage, Russian positive law - ecclesiastical and civil - also indicates the extreme limit of old age, beyond which marriage is considered physically and morally impossible: physically - since the ability for sexual intercourse weakens over the years and is even completely lost, morally - because a person in old age should not think about the joys of the honeymoon, but about preparing for the afterlife. On these grounds, St. The Synod in 1744 recognized the marriage of one person who was 82 years old as invalid, and on the basis of this particular synodal definition, the code of civil laws (Article 4) set out a prohibition on marrying persons who were more than 80 years old. Incapacity for marital cohabitation. Both physical and spiritual inability to marry may depend not only on age, but also on the painful condition of the subject. Under the name of physical inability we must understand in general the inability “ad coitum” and not “ad generardum” (the latter is a secret of nature and does not depend on the personal properties of the spouses). The following have such a disadvantage: a) eunuchs - male and female persons, forcibly deprived - men - of replaceable, and women - mammary glands (testicula); b) naturally impotent or diseased, suffering from incurable infirmity of the genital organs. Since the inability of both usually constitutes their personal secret, which can only be revealed after marriage, the legislator necessarily allows the presumption that a person seeking marriage and satisfying other requirements of a marriage union has the physical ability “ad coitus”. Therefore, both in church laws and in the Code of Civil Law. the inability to cohabitate in marriage is spoken of not as an obstacle to marriage, but as a basis for divorce at the request of a capable spouse (Articles 48 and 49). However, if incapacity, as an incurable condition, was officially recognized before marriage, then, of course, it would constitute an obstacle to marriage, or, if the marriage has already been concluded, then it would serve as a basis for declaring it invalid from the very moment of its conclusion. Spiritual incapacity for marriage is manifested in all those mental illnesses that exclude a person from the opportunity to express his free will to conclude any kind of agreement. Our civil law prohibits marriage with the insane and insane (Article 5) and declares such marriages invalid (Article 37, paragraph 1). Freedom from such conditions which, either by the very concept of marriage, or by the prescription of a positive law, do not allow the possibility of entering into marriage. These include: a) an existing marriage. Since marriage, according to the concept of it, is a union of one man and one woman, and, moreover, a union concluded for the complete communion of all life relations and, therefore, for life, it is clear that a person who is already married cannot enter into a valid marriage (Article 37, paragraph 3). b) priestly and monastic ranks The apostolic decrees still known to us forbade clergy of the external ranks (starting with deacon) to marry after ordination if they accepted ordination as single (Ap. Post. book 6, chapter 17). The 26th Apostolic Canon allows marriage only for clerics of the lower degrees, readers and singers. A presbyter who marries in this rank, according to the 1st rule of the Neocessarine Council, is expelled from his rank. Based on these caconical prohibitions, Emperor Justinian declared the marriages of presbyters, deacons and even subdeacons invalid, and the children born from them illegal; Justinian's law received canonical force, both through the adoption of Photius in the Nomocanon in 14 titles, and through formal confirmation in the 3rd and 6th rules of the Council of Trullo. Thus, the priesthood is forever recognized as an absolute obstacle to marriage. In this sense, on the basis of the Helmsman, our civil law says: “marital unions of those already ordained to the priestly or deaconal rank are recognized as legal and valid, as long as they remain in this rank” (Article 37, paragraph 6, cf. Art. 2). Monastics cannot marry due to their very vows (virginity and complete withdrawal from the world). According to the canonical rules, the marriages of such persons are equal to adultery (High. Vel. 60, No. under Req. 77). The civil law classifies these marriages as unofficial and invalid with the same reservation that is made in relation to the clergy, “while they remain in their rank” (vol. 10, art. 37, paragraph 6, cf. art. 2), since we are allowed to enter into monastic rank. c) Widowhood after third marriage It should be noted that this obstacle to marriage or, in other words, the prohibition of the 4th marriage is a feature of marriage law only in the Orthodox Church. In other Christian churches, the possibility of sequential marriage an unlimited number of times is allowed, and in the Eastern Church this prohibition was first formally introduced in the law of the Byzantine Empire at the beginning of the 10th century. regarding the 4th marriage of the Byzantine Emperor Leo the Philosopher. This emperor, who was in three successive marriages, did not have children from any of them. In order to leave an heir to the throne, he decided to enter into a 4th marriage, contrary to his own laws, which prohibited it unconditionally. As a result of this marriage, a schism arose in the Byzantine clergy. The largest and best part of it declared the 4th marriage of the emperor to be insignificant and invalid and Constantine, born from this marriage, to be illegitimate. But among the clergy, especially those close to the court, there were people who, as an exception, found it possible to recognize the 4th marriage of the emperor as valid and the son from this marriage as the legitimate son and heir to the throne. The issue has been finally resolved so-called. “The volume of unification” (or the “Tome of reconciliation” of the church schism), published under the Patriarch of Constantinople Nicholas the Mystic in 926 and constituting the 52nd chapter of our honorable Helmsman. Our civil law takes the same point of view, which declares the 4th marriage of an Orthodox person null and void (Vol. 10, Part 1, Art. 67). d) Being under a court prohibition to marry. All former spouses through whose fault the marriage was dissolved or declared null and void are subject to this prohibition. This is precisely the consequence for the guilty party that accompanies the dissolution of a marriage: 1) for bigamy and bigamy (vol. 10, art. 40), and if there was guilt on both sides, then both parties are condemned to celibacy, 2) for the unknown absence of one of the spouses for five years or more (art. 41 and 42), 3) for adultery and violation of marital fidelity (Ust. Spirit. Cons. Art. 253) and 4) for physical incapacity for marital cohabitation (ibid). In the first three cases, condemnation to permanent celibacy is the punishment of the person guilty of destroying the marriage by his crime against the marriage union; in the latter case, a judicial verdict on celibacy is not in the proper sense a punishment, but only a statement of a fact in which, if it had been known, a previous marriage could not have taken place. Already in Roman law, marriage was defined, among other things, as iuris divini communicatio between spouses, and this definition was adopted into the church (Photian) nomocanon with the remark that it best (τὰ μάλιστα) indicated the nature of the marriage union: thus, the requirement of unity of religion of the spouses, according to the view of the church, relates to the very essence of the latter. On this basis, the ancient church rules, even if they allowed the marriage of Orthodox Christians with non-Orthodox people, it was always under the condition that the non-Orthodox person at the time of marriage gave an obligation to convert to Orthodoxy (Chalc. 14, Tr. 12, Laod. 10 and 31, Carth. 30). In general, church canons prohibit the marriage of Orthodox Christians with heretics, that is, with Christians who have separated from the Church of Unity. As for marriages of Christians with non-Christians, they were always unconditionally prohibited by both church rules and the laws of the Byzantine emperors. Before Peter V., mixed marriages were not allowed not only between Christians and non-Christians, but also between Orthodox and non-Orthodox Christians. Only since the time of Peter, precisely since 1721, as we will see, mixed marriages of the first type are allowed under different conditions, that is, marriages between Orthodox Christians and Lutherans, Catholics, Reformists and Armenians, but not marriages of Orthodox Christians with Jews, Muslims and pagans. For Russian subjects of Christians of non-Orthodox confessions, our civil laws allow, however, marriage with Jews, if permission from the spiritual authorities follows. Our civil legislator in this regard takes the point of view of church law. Catholic and Orthodox church law unconditionally prohibits the marriage of Christians with non-Christians, which is expressed in Article 10. 85. But such a prohibition does not exist in the church law of the Lutherans and Reformed people; therefore, our civil laws allow Russian subjects of the Lutheran and Reformed confession to marry non-Christians, if the consent of their spiritual superiors follows (Ust. In. Spanish Art. 210–211). 5) Lack of close relationship between spouses Kinship in the sense of an obstacle to marriage is divided into natural, or blood, and artificial or derivative, which includes property, spiritual kinship and civil kinship. A. Natural or blood relationship Natural or blood kinship is a connection between persons descended from one another or from one common ancestor. This connection is first of all physical; it consists in the unity of blood flowing in the veins of the one who gave birth and the one born, of ancestors and offspring. It is this unity of blood that constitutes the natural obstacle to marriage between close relatives. At all times and among all cultural peoples, sexual relations between such persons were viewed as something unnatural, as desecration and damage to related blood. And, indeed, centuries-old experience confirms that marriages between close relatives are accompanied by sickness of the offspring and even lead to the extinction of clans. But natural or blood kinship is also a moral connection. In fact, between parents and children, brothers and sisters, grandfather and grandson, uncle and niece, already by virtue of the blood connection mentioned above, there are relations of a moral nature, relations of kindred love, the purity and holiness of which does not allow sexual relations between them. But it goes without saying that kinship ties gradually weaken as the newly born members of the clan move away from their common ancestor, and at the same time kinship loses its significance in the sense of an obstacle to marriage. Where, however, does the obstacle completely disappear? The concept of closeness or distance of kinship is a relative concept, and in positive law various rulings on kinship are possible as an obstacle to marriage, but it is necessary to establish some general and unchanging principle to resolve this issue. There is no doubt that the family connection is most vividly recognized, or, more precisely, directly felt, in that circle of people that is delineated by special and well-understood names of kinship: father-daughter, mother-son, brother-sister, grandfather-grandson, uncle-niece. These names exist in all languages; in the popular sense, they clearly speak of the closeness of kinship and therefore constitute the simplest and, so to speak, natural measure of kinship, which does not allow sexual relations between the named persons. But in the positive marriage law of our Orthodox Church, an artificial method of measuring kinship is adopted, as a value in degrees and lines. This method is one of the most brilliant images of Roman jurisprudence. The degree (gradus) of relationship in Roman and canon law is the connection of one person with another through birth. The number of births through which a relationship was established between two persons precisely determines the degree of relationship between them. Hence the general rule of Roman law: quot sunt generationes, tot sunt gradus. A connection of degrees or births, continuing uninterruptedly from one person to another, constitutes a line. If we take several persons descending from one another, then their births form a straight line along which we can go either upward, from descendants to ancestors (ascending line), or downward, from ancestors to descendants (descending line). If the relationship between these individuals is such that they do not descend from each other, but from one common ancestor, then the line connecting them will be broken, or lateral. When it is thus known what a degree or line is, it is easy to determine the relationship of relationship between two given persons: to do this, one only has to count the number of intermediate births between these persons and the degree of relationship in which they are related to each other will be obtained. Along the lateral line, the calculation is made as follows: from one of the given persons we go to that ascending one, who for both is a common ancestor, and from this common ancestor we go downward to the other given person. The sum of the degrees along one and the other line will indicate the degree of relationship of both persons as collateral relatives. When calculating the degrees of kinship in marriage law, you need to keep in mind the following rules: 1) Husband and wife, as ancestors, in relation to their descendants do not constitute 2 separate degrees, but are always taken as one indivisible degree. 2) Children from the same father, but from different mothers (half-blooded) or vice versa from the same mother, but different fathers (half-blooded) in marriage law are always considered among themselves as full brothers and sisters, i.e. in the 2nd degree of kinship. 3) Kinship in canonical sources, in the sense of an obstacle to marriage, is limited to only seven degrees and then is no longer considered. In this respect, canon law follows Roman law. And in this latter, the indicated limit of kinship (7 degrees) was established for reasons of average human longevity, since, according to Modestine, it is impossible for anyone to live to see the descendants, who, as collateral relatives, would be further than the 7th degree from each other. In short, the named lawyer admitted that in most cases the Roman pater familias can live to such an age that he will have a great-grandson on one descendant (3rd degree), and on the other - a great-great-grandson or great-great-grandson (4th article). And if these descendants were for some time in the potestas patria of one ancestor, then their relationship was considered beyond any doubt. However, the 7th degree of kinship among the Romans was important only in inheritance law, and not in marriage law. Degrees of consanguinity in which marriage is not permitted The starting point for church legislation on kinship as an obstacle to marriage was the definitions of Mosaic and Roman law. Both prohibited marriages in linear kinship without limit, and this is natural: not to mention the fact that a simple moral feeling does not allow sexual relations between ascendants and descendants, this connection physically appears abnormal, because the further we go along the ascending or descending line, the more the difference in age between linear relatives increases. As for relatives in the collateral lines, Mosaic and Roman law does not allow marriages here only to the third degree, inclusive. Moses looks at such marriages as incest, precisely speaking in the plastic language of the eastern peoples, he says: “You shall not reveal the nakedness of your father’s sister and your mother’s sister, for they are half-blooded to your father and your mother” (Book Lev, ch. 18, v. 12-13). Roman law, prohibiting marriages in the 3rd degree of kinship, was also guided by the requirement of respect for lower relatives to higher ones: marriage, for example, between an uncle and a niece was prohibited because the latter was in relation to the first "filiae loco". The Church not only adopted the stated definitions of Mosaic and Roman law, but also gave them an even broader application to the institution of Christian marriage. From the very beginning, she sought to push as far as possible the border of kinship prohibited for marriages; she saw in marriage a natural means of spreading Christian love in humanity with the help of family love that arises between different families through marriages between their members. But in the first time of its existence, the church, persecuted by the state, of course, could not prohibit marriages to the extent that they were allowed by Roman civil laws, and only with regard to clergy they always maintained stricter discipline. So, for example, although according to Roman law marriages in the 3rd degree of kinship between uncle and niece were prohibited, but since the time of Emperor Claudius, who married Agripina, the daughter of his brother, this prohibition began to be interpreted in the sense that it is not allowed to marry the daughter of his sister, not his brother (Gai. Inst., com. 362). Of course, examples of such marriages also occurred between Christians, but that the church did not approve of them is clear from 19 Ap. rights., which prohibits the admission into the clergy of persons married to their niece (indifferent to the daughter of a brother or sister). The influence of the church was immediately reflected in this regard in civil legislation, when Christianity was recognized as the dominant religion in the Roman Empire. So already Constantine the Great, the first Christian emperor, absolutely forbade marriage between uncle and niece. Marriages of persons who were related to each other in the 4th degree of kinship according to Roman law were partly allowed, partly prohibited, depending on the combination of kinship in which this degree was obtained: if the relatives were on equal lateral lines in relation to the common ancestor, the marriage was allowed, if on unequal ones, it was prohibited. But the church, from the very beginning of its union with the state, held the view that 4th Art. generally prohibited for marriage. However, this prohibition became a general law not only of the church, but also of the state only since the time of the Council of Trulle, which, in its 54th canon, decided that a marriage with a cousin should henceforth be recognized as null and void. But this name of kinship “cousin” in Greek “ἐξαδέλφῃ” in ordinary usage did not have a completely accurate meaning: ἐξάδελφοι were called not only cousins, but also second cousins, i.e. standing not only in the 4th, but also in the 6th degree kinship. Thanks to this use of words, the emperors Leo the Isaurian and Constantine Copronymus, publishers of the Eclogue, went further than the Council of Trulla in prohibiting marriages by kinship, including among the relatives between whom marriage is impossible, not only cousins, but also their children, i.e. second cousins, standing in the 6th degree of kinship. Finally, under the influence of the already mentioned rule of Roman law, that kinship disappears beyond the seventh degree, in 12 cents. and this degree in the canonical legislation of the Eastern Church was also recognized as meaning an absolute obstacle to marriage. B. Artificial or derivative kinship Just as kinship is established by blood ties between two given persons, so property arises as a result of a marriage between members of 2 different surnames. From the concept of marriage, as a union that unites husband and wife into one flesh, as if into one moral personality, the concept of property (affinitas), as if a relationship analogous to kinship, naturally follows. It is the relatives of one spouse who become, as it were, relatives of the other and, thus, the two clans, through the marriage union between their members, come closer to each other "affines fiunt" - they become each other's own, which is why the relationship between them is called property. These relations are so natural that the concept of property exists among all peoples who are not alien to the strict idea of marriage, as consortium omnis vitae. From here the view of property as an obstacle to marriage. Thus, Mosaic legislation prohibits marriages based on property: with the wife of a son, brother (who left children, and if the deceased brother did not leave children, then his brother was required to marry his widow - the so-called. levirate marriage); with his uncle's wife, with his stepmother and her daughter, with his wife's mother (Lev. 18). In Roman marriage law, property was recognized only between one spouse and the direct relatives of the other. Thus, a widower was not allowed to marry the mother of his deceased wife and a widow was not allowed to marry the father of her deceased husband, as well as to the children of the deceased second-married spouse from his first marriage; in other words, it was impossible to marry his mother-in-law (wife’s mother), stepdaughter (wife’s daughter) and daughter-in-law (son’s wife). This prohibition did not extend to the lateral relatives of the deceased spouse. As for the church, by the very concept of marriage, as a union in which husband and wife constitute one flesh, it had to consider the property of property as a relationship completely similar to kinship. By virtue of this view, the church, first of all, completed the definitions of Roman law about property as an obstacle to marriage, namely, it put the properties in relation to: 1) one spouse not only to the direct relatives of the other, but also to lateral ones; 2) not only one spouse to the relatives of the other, but also relatives on both sides. However, it should be noted that such an expanded concept of property is accepted only in the marriage law of the Orthodox Church. As for other Christian churches, they recognize property only between one spouse and the relatives of the other, but do not put the properties of relatives on both sides into the relationship. All canonical legislation on property as an obstacle to marriage developed from one rule expressed by Vasily V. in his letter to Bishop Diodorus Tarcomus. This message resolves the issue of marriage with a sister-in-law, that is, with the sister of a deceased wife. Since in Roman law this marriage was allowed, because the sister was not a direct relative of the deceased wife, but a lateral one, and in the Mosaic legislation such a marriage was not prohibited, then some hierarchs contemporary with Basil the Great, including the named Bishop Diodorus, found it possible to allow such a marriage for a Christian. But Vasily Vel. expressed a strictly negative view on this matter, which became dominant in the Orthodox and some non-Orthodox churches (for example, in the Anglican). In his letter to Diodorus, Vasily V. develops in detail the very foundations of the property as an obstacle to marriage and in general outlines the boundaries to which this obstacle should extend. Here are the true words of Basil the Great: “What could be closer to a husband than his wife, or better said, his own flesh? For they, husband and wife, are no longer two, but one flesh. Thus, through the wife, her sister passes into the kinship of her husband. For just as a husband cannot take his wife’s mother, nor her daughter (his stepdaughter), because he cannot take his mother and daughter, so he cannot take his wife’s sister, because he cannot take his own sister. And, on the contrary, it is not permissible for a wife to marry her husband’s relatives, because the rights of kinship are common to both parties.” Another principle from which Basil the Great derives the obstacle to marriage in the combinations of properties indicated by him is that through marriages between relatives there is a confusion of kinship relations and names. Thus, prohibiting in this case a marriage with two sisters or, what is also the same, a marriage of a widower with his sister-in-law, Vasily V. says: “Those who, regardless of nature, which initially distinguished the name of kinship, what name will they call children born by the same person from a marriage with their own sisters? In relation to him, the father, they will be siblings, and in relation to their mothers, they will be cousins, since they come from two sisters.” In conclusion, he says: “Don’t make your children’s aunts their stepmother.” Thus, Vasily Vel. Completely identifies the property with consanguinity, which led to the expansion of the scope of the property in the sense of an obstacle to marriage to almost the same extent as consanguinity. The first example of such an expansion appears in the 54th rule of the Sixth Ecumenical Council of Trullo. This rule, along with the unconditional prohibition of marriages in the 4th degree of consanguinity, also sets out the prohibition of marriages between relatives of the same degree; it is for the first time that the marriage of two siblings with two siblings is prohibited. It is remarkable that this council calls property and kinship by the same name (οἰκειότης), therefore, it completely identifies both relationships and looks at marriages between close relatives, that is, it recognizes both of them as incestuous, and punishes those who enter into such marriages on a par with adultery. Later canonical legislation went even further than the Trull Cathedral. The most important legislative act on this subject after the above-mentioned canon of the Council of Trula was the famous “Tom” of Patriarch Sisinnius, published at the end of the 10th century and found in the 54th chapter of our printed Helmsman. In the Greek Church, this “Tom” received almost canonical meaning, which remains to this day. In this “Volume”, for the first time, the prohibition of two siblings from marrying two cousins, i.e., to the sixth degree of property, is stated. When, therefore, kinship and property were completely identified in marriage law, then the same method of determining its proximity was applied to the property as was adopted for determining the proximity of kinship, i.e., the method of calculating the degree of property. The degree of property refers to the actual degree of relationship of one spouse to his given blood relative, transferred to the other spouse, as his relative. Thus, when it is necessary to determine the degree of property between one spouse and a relative of another spouse, then only the degrees of relationship between the spouse and his given relative are counted, then this degree is applied to the other spouse and determines the degree of his property. This means, for example, that my uncle is a relative of the 3rd degree for me, and a relative of the same degree for my wife. When it is necessary to determine the degree of property between a relative of one spouse and a relative of the other, then the degrees of relationship are calculated separately in one and the other gender, then added up, and this sum shows the relationship of property between these relatives of the husband and wife. Hence, for example, the brother of the husband and the sister of the wife are in the 4th degree of property. The mentioned “Tom” of Patriarch Sisinnius was the last legislative act on the issue of property as an obstacle to marriage: property is recognized as such an obstacle up to the 6th degree inclusive (and consanguinity up to the 7th). In addition to the simple or two-gender property, the three-gender or complex property is also recognized as a source of obstacles to marriage. This property is always established by two marriages; namely, either two marriages of the same person with members of 2 different surnames, or marriages of two members of the same surname with members of 2 other surnames. This means that a tripartite relationship includes: 1) one spouse and the spouses of the other’s relatives; this scope of the three-generation property is very clearly indicated in the 50th chapter of the Helmsman’s Book with the following words: “one generation is me, another generation is my wife and her brother, the third generation is the wife of my wife’s brother,” that is, my brother-in-law; there are obviously three clans and the clan of my wife and her brother is the intermediate one; 2) one spouse and relatives of the other second spouse from his first marriage; for example, my father-in-law from my first marriage remains my relative, and through me, my second wife’s relative. It should be noted that this tripartite property was recognized as an obstacle to marriage in Roman law, although only in the first degree, namely, the marriage of a stepmother with the husband of a stepdaughter and the marriage of a stepfather with the wife of a stepson were prohibited. The same thing was fully adopted by canonical legislation, but the latter here too went further than Roman law and brought the obstacle to marriage in the trigender property to Art. 3. inclusive. The counting of degrees in the three-gender property is done in exactly the same way as in the two-gender property: you need to remember only one rule: husband and wife are always taken as one degree. In addition to blood kinship and property, another obstacle to marriage is the so-called spiritual kinship, which occurs through the perception of a baby or an adult from the baptismal font. The institution of succession was formed in the first 3 centuries of Christianity. Initially, when baptism was performed on adults, recipients could only be persons of the same sex as the person being baptized, which is directly confirmed by the testimony of the Apostolic Constitutions already known to us, which prescribe men to be deacons, and women to deaconesses. As mediators in the spiritual rebirth of those received, the recipients became a relationship of spiritual kinship with them, namely, they were recognized as their spiritual fathers and mothers. As long as baptism was performed on adults and as long as the recipients were of the same sex as those being baptized, there could be no talk about the significance of spiritual kinship as an obstacle to marriage. But already in the 4th century, the baptism of children became a custom, and again the presence of recipients during the ceremony was required, and these recipients were also recognized as the spiritual parents of those received in parallel with their carnal or natural parents. If the baptized child did not have parents or they were unknown, then adoption from the font was often combined with adoption. Thus, the church institution of spiritual kinship came into contact with the civil institution of adoption and received in marriage law the same meaning that the latter had in Roman law, i.e., perceived as the spiritual son of the recipient was completely equated with the natural children of this latter. When baptizing children, of course, there was no need to insist on the ancient rule that the recipient should be of the same sex as the person being baptized. Therefore, just as the right of adoption according to civil laws belonged exclusively to men, so men usually were also the adopters of children of both sexes. When, therefore, the church institution of adoption came into contact with, or at least received an analogy with, the civil institution of adoption, naturally, a view should have been established on spiritual kinship as the same obstacle to marriage as adoption was recognized. The first law on this was published in Art. VI. Justinian, who forbade the successor to marry the adopted, i.e., goddaughter, and motivated this prohibition by the fact that nothing can so arouse paternal love and establish such a legitimate obstacle to marriage as this spiritual union, through which the souls of the recipient and the adopted are united. Then, the Council of Trula (in 53 can.) placed the successors in a relationship of spiritual kinship. The later civil and spiritual legislation on marriage matters introduced a relationship of spiritual kinship that was prohibited for marriages of other persons not mentioned in the conciliar rule. Thus, in the Eclogue of Leo the Isaurian, in the Prohiront of Basil the Macidonian and in the Basilicas of Leo the Philosopher, spiritual kinship, in the sense of an obstacle to marriage, is extended to the children of the recipient and the recipient. Finally, in the XII century. Church practice and canonists completely equated spiritual kinship in relation to marriage with blood kinship and even placed the former above the latter. This view was the result of an incorrect interpretation of the following initial words of the 53rd rule of the Council of Trulla that we quoted: “Since union in spirit is higher than union in body, then...” and so on. These initial words of the canon received such a meaning that spiritual kinship is higher than carnal or natural kinship, whereas in fact the council here compares not two types of kinship, but spiritual kinship with a carnal union, that is, marriage (συνάφεια). This incorrect interpretation of the initial words of the Trullian Canon led to the fact that in later civil and church legislation the scope of spiritual kinship in the sense of an obstacle to marriage was expanded to the 7th degree inclusive, although it was limited only to descending relatives of the recipient and the recipient. The calculation of the degrees of spiritual kinship was carried out as follows: 1) the recipient, as the spiritual father of the person received, relied on him as a son in the first degree of spiritual kinship, and to his parents in the second, as their brother (in relation to them he was called σύντεκνος, compater, compére, co-father); 2) the recipient’s own children were considered to be in the 2nd degree of spiritual relationship, like his brothers. Further, the degrees were counted in the same way as in blood relationships, two descending ones up to the 7th degree inclusive. The Greek and all Orthodox South Slavic churches of the East still recognize spiritual kinship as an obstacle to marriage in this scope. c) Civil relationship (or adoption) According to Roman law, adoption resulted from a relationship similar to consanguinity, but differing from the latter in that it was established only between the adopted person and the adoptive parent and between the adopted person and the agnates of the adoptive parent, but not between the adopted person and the cognates of the adoptive parent. From adoption an obstacle to marriage arose, partly according to the example of blood relationship, partly according to the example of property. Since this obstacle arose from a purely legal relationship, it is clear, by its very essence, it should have been valid only as long as this legal relationship lasted. Regarding agnates, this principle was retained in full force and, until adoption was destroyed by emancipation, the adopted person was prohibited from marrying the children and grandchildren of the adoptive parent, as well as his wife, mother and aunt. But moral decency demanded that even after the abolition of adoption by emancipation, the marriage of the adoptive father with the adopted daughter, and the adopted one with the wife of the adoptive father, should not be allowed. Emperor Leo the Philosopher decreed that those adopted with the participation of the church should not marry not only their adoptive parents, but also their children; Subsequently, adoption accomplished by church rite was compared to spiritual kinship, and the degrees of kinship by adoption were considered exactly the same as the degree of spiritual kinship. Relationship, physical or illegitimate (by birth not from marriage) In Byzantine law, this illegitimate or physical relationship is recognized as an obstacle to marriage only between the natural parent and his illegitimate children. But from the canonical point of view, no difference can be made between physical or legal kinship, because in canonical legislation, the source of all prohibitions of marriages between close relatives is precisely the natural moment of unity of blood flowing in the veins of blood relatives, and this moment is equally inherent in both legal and illegal kinship, and therefore, from a canonical point of view, illegitimate kinship, in the sense of an obstacle to marriage, should be compared with legal kinship. Kinship as an obstacle to marriage in Russia The Byzantine laws on various types of kinship that we examined were adopted in Russia along with Christianity in the Greek nomocanon. We find their general confirmation already in the first church statutes, bearing the names of the Grand Dukes Vladimir and Yaroslav. The first charter relates to the affairs of the church department the following cases: “if in a tribe (kinship) or matchmaking (property) they are caught (get married) ...” The Yaroslav Charter defines the punishment for marrying in a close relationship or affinity. A direct indication of the limits of kinship or properties prohibited for marriage was made on the basis of Byzantine laws by the Russian Metropolitan John II at the end of the 11th century, i.e., shortly after Yaroslav. This metropolitan unconditionally prohibited marriages between second-born brothers and sisters, i.e. in the 6th degree of consanguinity, and marriages of cousins ​​with cousins, i.e. in the 6th Art. properties. But how all these prohibitions were grafted into Russian people’s life can be seen from the fact that our princes in the XI-XIII centuries. often married relatives in the 6th century. and in-laws in the 5th. The rigor of applying Byzantine laws on this subject to Russian life was especially weakened in those times when Russian people became the head of the spiritual hierarchy. Thus, news about the Moscow Metropolitan Peter has been preserved in the form of a complaint against him to the patriarch that he allowed marriages in the 5th and even up to the 4th century. kinship. Examples of the condescending attitude of our spiritual hierarchy towards such marriages began to be repeated even more often from the middle of the 15th century, when the Russian Church, due to the fall of Constantinople, became autocephalous. From the time of the patriarchate to us, quite a few so-called “exemplary” cases, i.e. such judicial patriarchal decisions that left without dissolution marriages concluded in kinship and affinity further than 4th Art. In general, in practice, it was customary not to allow such marriages, but not to dissolve them if they had already been concluded, but only to subject the perpetrators to church penance. Before Peter V., secular authorities did not interfere at all in marriage matters, recognizing them as purely church matters. Into the Spirit. The Regulations for the first time expressed the idea of ​​the unconditionally binding force of only such rules on kinship as an obstacle to marriage, which are contained in the Law of God, namely in the book of Leviticus and in the generally accepted church canons (that is, not in the later legislative acts of the Byzantine Empire). Since the middle of the last century, the secular government began to limit the effect of Byzantine laws on marriages prohibited by kinship. These laws turned out to be restrictive in many respects: 1) they sometimes requested members of the royal family, so in 1744, during the betrothal of Elizabeth Petrovna of Holstein’s nephew and heir, Prince Peter (later Peter III) to the Anhalt-Zerbst princess (later Catherine II), one of the members of the Synod, Moscow Archbishop Joseph, protested against this marriage on the basis that the royal bride and groom were related by blood of the 6th degree; the protest, of course, was not respected, but still points to the need to revise the old laws set out in the Pilot's Book. 2) The same laws should have greatly constrained the small-estate nobles when arranging marriages between their serfs, who in some 20-30 years could become so closely related and intermarry with each other that further marriages between these serfs became impossible; hence various outrageous phenomena occurred in the life of serfs, for example, landowners, in order not to buy brides from their neighbors, married young boys to adults or even elderly girls and widows, or forced priests to marry serf marriages that were prohibited according to the Helmsman and were subject to dissolution. Finally, 3) the government itself, following the then prevailing population policy, so-called. populationist, which demanded an increase in population, inevitably encountered church laws that established so many obstacles to marriage, especially based on kinship and property. And now Empress Catherine 2, in her famous volume Order of the Commission on the Composition of a New Code, among other things, pointed to the need to issue a new law on marriages prohibited by kinship and property, and motivated this point of the Order by the fact that many spaces in Russia remain uninhabited. But, as you know, the Catherine Commission did not create a new code and the old laws on kinship and property, as an obstacle to marriage, remained in full force until 1810, when on January 19 the Decree of St. Synod, which undoubtedly constitutes an era in the history of Russian marriage law. This decree concerns three types of kinship: spiritual kinship, blood kinship and two-parent property. The spiritual relationship in the decree is limited to the recipient, accepted by the parents of the latter, and at the same time a reference is made to the rule placed in the Trebnik in the “rite of baptism”, according to which it is sufficient (but not necessary) for one recipient to be baptized - either a man, if the infant being baptized is male, or a woman, if the baptism is a girl. From here the decree draws the conclusion that there is no spiritual relationship between the recipient and the recipient of the same baby that would prevent their marriage. But in later practice, spiritual kinship began to be limited only to the recipient of the same sex with the baptized person and the parents of the latter. As a result, in our country only marriages of a boy’s godfather with his widowed mother and a girl’s godmother with her widowed father are considered prohibited by spiritual kinship. But the marriages of the girl’s godfather with her widowed mother and the boy’s godmother with his widowed father were more than once permitted by separate decrees of St. Synod. It should be noted about this practice that it is contrary to the true meaning of the 53rd rule of the Trullo Council, already known to us, according to which recipients in general, that is, no matter what gender they and the baptized children are, are prohibited from marrying the parents of the latter. Meanwhile, this practice implicite contains the idea of ​​​​the possibility of marriage of a godfather with a goddaughter, and a godmother with a godson. In fact, if we assume that a recipient of a different sex from the perceived one is not a real recipient and, as a result, can marry the widowed parent of his godson or goddaughter, then why not allow such a recipient to marry the perceived one himself? However, we have not yet had examples of allowing a godfather to marry his goddaughter, or a godmother to marry her godson. As for the question of the meaning of consanguinity and bikinship as an obstacle to marriage, it was resolved in the decree of 1810. 1) Based on the law of God, or the regulations set out in the book of Leviticus, where marriage by kinship and property is prohibited until Art. 3. inclusive and 2) on the basis of the 54th rule of the Trullo Council, which prohibits marriage by kinship and affinity until the 4th Art. inclusive. And regarding further degrees of kinship and properties, which according to Kormcha were also prohibited for marriage, in the synodal decree of 1810, diocesan bishops do not prohibit marriages in these degrees, but also do not allow parish priests to officiate such marriages without special permission each time from the diocesan bishop, so now marriages in the 5th Art. relationships or properties can be married only with the permission of the diocesan bishop. In addition to the decree of 1810, synod special decrees on the property of three generations were issued on April 21, 1841 and March 28, 1859. In these 2 decrees, the tripartite property was recognized as an unconditional obstacle to marriage only in the first degree; marriages in further degrees of this property are also recognized as possible only with the special permission of the diocesan bishop each time. Conditions of marriage that do not affect its validity Along with the considered conditions of marriage, on which its validity depends, positive marriage law knows other conditions, the failure of which by the persons getting married, although it does not invalidate the marriage, is however accompanied by certain unfavorable consequences for the guilty persons. Such conditions include: 1) consent of persons having power over the spouses. The most important condition in this regard is the consent of the parents to the marriage of their children. According to Roman law, this condition also applied to the conditions for the validity of a marriage, so that the marriage of children without the will of the parents was a matter of legal impossibility and void if it actually took place. Although the church, through its influence, in many respects softened the harsh nature of Roman paternal authority, in marriage law the significance of this authority was completely protected by church canons. So, Vasily Vel. calls the marriage of children without the will of the parents fornication (Prov. Vas. Vel. 38?). Based on this rule and civil Byzantine laws, in 1038, under Patriarch Alexei the Studite, a conciliar decision was made, by which the marriage of a daughter without the will of the father was declared illusory and invalid. This definition was included in Chapter 51 of our printed helmsman. But since, according to Roman and Greco-Roman laws, the father had the responsibility to arrange the marriage of his children, he, the father, could not prevent them from entering into marriage without good reason. The emancipated son and daughter entered into marriage without parental consent. All these definitions of Byzantine law passed into our Helmsman and, no doubt, served as a guide for our ecclesiastical courts in cases of parental consent to the marriage of children. But it cannot be said that the Helmsman has full effect in this regard. There are features in Greco-Roman laws that are completely inapplicable to Russian family life, for example. emancipation of children, so our consent to the marriage of children was not conditioned by anything. However, Russian church laws themselves protected the personality of children from parental tyranny in this important matter. Thus, in the Church Charter of Yaroslav the Wise, parents guilty of forcing their children into marriage in the event of bad consequences of this coercion were subject to church trial. Under Peter Vel. cases of children marrying against the will of parents were assigned to the department of the secular court, and cases of parents forcing children to marry remained in the department of the spiritual court. Our current civil laws positively prohibit the marriage of children without the consent of the parents (Vol. 10, Part 1, Art. 6), and the criminal law subjects those guilty of such marriage to corrective punishments, allowing, however, parents to mitigate the punishment and, with their consent, even eliminate it altogether (Ul. about nak. Art. 1586). The only exception to this general rule was made by the Supreme Decree of 1842. for marriages of schismatic children if they convert to Orthodoxy; The same, of course, must be said about the children of non-Christian parents if, upon reaching the age specified in the law, which gives them the right to be baptized without parental consent (over 14 years old), they wish to marry persons of the Christian religion. What is said in the laws about the consent of parents to the marriage of children applies, of course, to those persons who take the place of parents for children (Vol. 10, Art. 6; Code of Laws, Art. 1567). 2. Permission from the authorities. The Helmsman's Book and, in general, Greco-Roman laws do not contain a regulation requiring persons in the public service to seek permission from their superiors to marry. Thus, this formality was completely unknown among us in ancient times. It was first prescribed by Peter V., at first only for employees in the navy. Namely, in 1722, midshipmen were forbidden to marry without the permission of the Admeralty Collegium. In later reigns, this prohibition was extended to the entire military department, and in the Code of Civil Affairs. Zak (and, moreover, already in the edition of 1833) set out a general prohibition for persons in the public service to marry without the permission of their superiors, certified by a written certificate (Article 9). For entering into marriage contrary to this law, the perpetrators are subject to a severe reprimand and are included in the service record (Ul. about nak. art. 1585). Forms of marriage in their historical development The union of a man and a woman, in order to obtain the character of marriage, must be recognized as such by the public authority, and for this it must be concluded in a certain form established by law or accepted by custom. We will indicate only those forms of marriage that Christianity found among the peoples of the ancient world and in our fatherland during the era of its establishment here and there. Among the Romans during the period of the empire, that is, in the indicated era, for the actual conclusion of a marriage, only the expression of mutual consent to marriage (consensus facit nuptias) by the persons getting married was required. This consent could be expressed in words, or in a letter, or through a messenger, or by the deed itself - the bride’s transition to the groom’s house. This transition was a sign of marriage even if the groom was absent. Marriage among the Romans was preceded by a conspiracy - spousalia. The conspiracy consisted in the fact that, on the one hand, the groom solemnly asked the father or guardian of the bride for her hand in marriage, and the father or guardian solemnly consented to this, and in turn asked the groom whether he really intended to take the bride for himself and the groom gave a solemn affirmative answer in the same way. Often, however, the conspiracy was carried out without the described formality and even without the personal presence of the bride and groom, through their parents or through written communications; in this case it was simply called pactum. According to the law, it was not necessary to make a prenuptial agreement before marriage, but this was the custom. This custom received special force from the time when the Lex Julia et Pappia Poppea decided that conspiracy relieves the fine imposed by law for evasion of marriage. A covenant imposed an obligation on the contracting parties to fulfill a condition, and if one party violated it, the other could, in ancient times, bring an action for breach of contract. Subsequently, the claim for compensation for a penalty in a marriage contract fell out of use; only the party that did not stand in the contract had to return the gift received in an agreement under the condition of marriage, sometimes double or triple. Persons who entered into an agreement were not allowed to enter into a new agreement without abandoning the previous one; otherwise they were threatened with infamia. An arranged or betrothed bride was equal in some respects to his wife, for example. the groom could take insults inflicted on his bride personally and file a lawsuit for injury. Since the time of Emperor Severus, the bride’s infidelity (desponsata) has even been viewed as adultery (mocchia). These were the forms of marriage among the Romans. Christian form of marriage The Church, in accordance with its calling to guide members on the path of moral perfection, of course, should have from the very beginning turned its attention to such an important matter in the life of Christians as marriage. Since the Law of God does not contain any prescription for any special form of marriage defined for Christians, the church in this regard recognized the validity of the civil customs and laws described by us. She only demanded that Christians marry only with the knowledge of their spiritual shepherds, namely, bishops, and this was required to prevent marriages between Christians that disagree with the Law of God, even if permitted by civil law. A marriage not previously announced in the church, according to the testimony of a Christian writer of the 3rd century. Tertuliana, was considered in Christian society as fornication and adultery. In general, the church has always rebelled against secret marriages, concluded without its knowledge, since this very secret made one assume that this marriage does not correspond to the idea of ​​Christian marriage. But the marriage itself was still carried out in a civil form, namely, through the parties expressing mutual consent to marry and bringing the bride to the groom’s house. This was the case in the Roman and Greco-Roman or Byzantine empires until the end of the 9th century. For the first time, the church blessing of a marriage was recognized as a necessary form of marriage in the 89th novella of Emperor Leo the Philosopher, published around 893. This novella concerned only the marriage of persons of free status. Its effect did not extend to slaves at the end of the 9th century. under Emperor Alexei Komnenos. By virtue of these laws, the following general procedure for concluding marriages was established in the Byzantine Empire: those wishing to get married or their parents declared this to the diocesan bishop (clerk) and, if any requirement was encountered. an unimportant obstacle to marriage, they asked for special permission to marry him. If the marriage turned out to be unhindered, then the petitioner was given an order (βούλλα) in the name of the priest who had to officiate the marriage, so that he would perform the marriage ceremony, having first ascertained whether there were any legal obstacles to this. The Church also demanded that the marriage agreement itself be carried out only with its participation. By its participation in the conspiracy, the church tried to give it a morally binding meaning and the same strength as is characteristic of the marriage itself. This view of the meaning of an agreement committed with the participation of the church was first expressed with all force in the 89th rule of the Council of Trulle, which says: “whoever takes into marriage a woman betrothed to another during the life of the betrothed, let him be guilty of adultery.” But in civil legislation, the church blessing of a marriage contract has been recognized only since the time of Leo the Philosopher. In two of his novels (74 and 109), this legislator decided that a betrothal made with the blessing of the church cannot be broken arbitrarily, and in order to have fewer reasons for such violations, the same age was established at which the marriage took place (14 and 12 years old). The same view of church betrothal, but only with greater force, is expressed in the Chrysobulus of Emperor Alexios Komnenos, published in 1084. In this act, church betrothal is recognized as completely equivalent to marriage. However, the conclusion of a prenuptial agreement through the church was not absolutely mandatory for everyone. Along with it, civil betrothal continued to exist, i.e., the old Roman sponsalia; in civil law, the church blessing of a marriage contract was recognized only from the time of Leo the Philosopher. In two of his novels (74 and 109), this legislator decided that a betrothal made with the blessing of the church cannot be broken arbitrarily, and in order to have fewer reasons for such violations, the same age was established at which the marriage took place (14 and 12 years old). The same view of church betrothal, but only with greater force, is expressed in the Chrysobulus of Emperor Alexios Komnenos, published in 1084. In this act, church betrothal is recognized as completely equivalent to marriage. However, the conclusion of a prenuptial agreement through the church was not absolutely mandatory for everyone. Along with it, civil betrothal continued to exist, that is, the old Roman ones, with the only difference from these latter ones that the Byzantine Greeks became accustomed to protecting the firmness of a civil agreement by assigning a penalty (πρόστιμον). Alexei Komnenos, in the last of his stories about betrothal, recognized these penalties as inappropriate in a conspiracy committed with the participation of the church, but did not prohibit the yoke in a civil conspiracy, declaring only that this conspiracy had no force if committed before the bride and groom reached the age of seven. Russian form of marriage: folk and church The laws of the Byzantine emperors that we outlined on betrothal and marriage passed down to us in Rus' along with Christianity. But here they were very poorly grafted into people's life. According to the well-known rule of Metropolitan John II, who lived at the end of the 11th century, shortly after the times of Vladimir and Yaroslav, our people considered marriage to belong only to the marriages of the highest classes of society - princes and boyars, and they themselves adhered to the ancient forms of marriage, which were umychka, i.e. kidnapping and buying brides. Marriage performed by buying brides, according to the evidence of the initial chronicles, was a custom among the Polans. After the transaction was completed, the bride was solemnly brought to the groom's house, hence the name of the legal wife led; In the morning, the wife's parents were brought a veno, i.e., the agreed payment for her. Thus, before the adoption of Christianity, marriage was preceded by a contract of purchase and sale of the bride, reminiscent of Roman sponsalia. in their original form. This agreement, through the efforts of the church, was little by little transformed so that it combined the features of the Byzantine betrothal, ecclesiastical and civil, namely: in a marriage agreement, even if carried out according to the church order, we usually included a condition of a penalty, as a result of which we often had cases of marriage forced by the need to avoid paying a penalty, which, of course, was contrary to the very essence of the marriage. Therefore, Peter the Great, by decree of 1702, prohibited the writing of charging notes with penalties and ordered that church betrothal be performed no earlier than 6 weeks before the wedding, but even during this period the betrothals could easily refuse to marry. Since this decree of Peter the Great. disagreed with the previous church laws, according to which betrothals made with the participation of the church were considered indissoluble, then Peter’s daughter V. Elizaveta Petrovna in 1744 restored the former meaning of church betrothal, namely, it forbade those formally betrothed to leave each other without permission and ordered cases of dissolution of the formal betrothal to be submitted through the Synod at their own personal discretion. Finally, in 1749, a synodal decree was issued, ordering that church betrothals and weddings be performed together, so that now these rites constituted one religious act. This decree: 1) eliminated all questions about the meaning and power of betrothal as an independent act, 2) stopped the reasons for dissolving betrothal before marriage, and 3) left in force the previous church laws equating betrothal with marriage. Only with regard to marriages of persons of the Imperial House does the previous procedure apply, according to which betrothal precedes marriage (Fundamental Law, Article 43). The procedure for performing marriages according to previous and current Russian laws The procedure for performing a marriage includes: 1) measures to prevent illegal marriages and 2) the church ceremony of marriage. Measures to prevent illegal marriages include: a) the exact designation of the priest who should perform the marriage. The face of the priest who had to officiate the intended marriage was in former times determined by the coronal memory. This was the name of the act, which, on behalf of the diocesan bishop, was issued to persons wishing to get married and contained an order to the priest to marry them, having previously found out whether there were any obstacles to their union in marriage. This act was otherwise called the banner. On the authority of the diocesan bishop, he was issued by ten-tenants, priestly elders, monasteries, and the St. Sophia Cathedral in Novgorod. It was always given in the name of a famous priest. Without the coronal memory, the priest had no right to solemnize any marriage. Thus, the priests celebrated each marriage only on the precise orders of their superiors. The obvious purpose for which the coronal memorials were instituted was to provide the diocesan bishop with the opportunity to monitor the implementation of church laws on the conditions of marriage. When receiving a coronal memory, certain fees had to be paid; their number varied depending on whether someone entered into a first, second, or third marriage. Our historical monuments are mentioned for the first time in 1518. They existed until 1765. This year, Empress Catherine II ordered that the monetary collection from weddings for those married in memory, which had existed until then throughout the entire state, be completely abolished. Regarding the issuance of this command, the Holy Synod at the same time made an order to abolish even the most coronal memorials. The coronal memorial, with which the priest was authorized to perform a marriage, of course, in most cases was written in the name of the parish priest of the persons wishing to get married. But it was only in the printed Helmsman’s Book that it was recognized for the first time that the priest who should crown those wishing to get married is the parish priest of the groom. However, at the same time, the custom, if it existed anywhere, was retained in force, according to which, if the bride and groom belonged to different parishes, the marriage ceremony was left to the bride’s parish priest. Since the time of Peter the Great, the rule that every marriage should be solemnized only by the parish priest wishing to marry has been repeatedly confirmed. With the abolition of coronal memorials, the Holy Synod again confirmed this rule and once and forever authorized the parish priest to officiate the marriages of his parishioners. Anyone wishing to get married, on the basis of the decree of the Holy Synod of 1765, must declare his intention to marry before the priest of his parish. In the decree of the Holy Synod of 1775 It is even more strictly confirmed that every marriage should be solemnized only by the parish priest of the persons wishing to be united in marriage. Anyone wishing to get married must announce to his parish priest, in writing or verbally, his name, vocation and rank or status, as well as the name and vocation of his bride. This constitutes a law still in force. b) Announcement. This is the name of an announcement in the church about persons wishing to marry each other, made with the purpose that anyone who knows about any obstacle to the proposed marriage would announce it to the priest who has to officiate the marriage. The procedure for announcement was established by the decree of the Synod of August 5, 1775. According to this decree, the parish priest, having received notification of the proposed marriage, announces it on the first three Sundays and other holidays that occur between them, notifying at the end of the liturgy, in the entire assembly of the people, that such and such wish to enter into a legal marriage with each other; therefore, if anyone knows of any real obstacle to their marriage, they would immediately let him, the priest, know how otherwise, if during these three weeks there is no response from anyone against the marriage, then in this same church he will be married. After the announcement is made - c) search. In the broad sense of the word, a search refers to research into the legality of a given marriage and formal certification of the non-existence of obstacles to its consummation, so announcement also fits under this general concept. In a strict sense, a search is a formal act, carried out after the announcement and consisting of a special recording. called a search book stating that no legal obstacles were opened to the consummation of this marriage, either by announcement or by other means. A uniform search form was drawn up by the Synod in 1837; it is also placed in the civil vault. zak. part 1 t 10 in the appendix to 26 art. The search record is sealed in person by the bride and groom, at least two guarantors for them, and, finally, by the priest and other members of the clergy. Attached to the search, partly in copies, partly in the original, are all documents certifying the legality of the marriage, namely, in copies: birth certificates, passports and the groom’s service record, and in the original, the certificate of the confessor of the bride and groom, if the confessor is not their parish priest, that both of them were at confession and at communion, the permission of the authorities, if the groom is in the public service, a consistory decree on dissolution of the first marriage and permission to enter into a new marriage if the bride or groom is divorced from their previous spouses: a similar decree is required in such cases when the marriage takes place after preliminary bishop's permission. II. The wedding ceremony must be performed 1) without fail in the personal presence of the bride and groom (Article 10, 31). An exception is allowed only for persons of the royal family, who can enter into marriages through attorneys (decree of 1796 in the Complete Collection of Laws). The ceremony requires the presence of witnesses, no less than two, who confirm with their signature the fact of the marriage in the parish (metric) register (vol. 10, article 31). f) The legal place of marriage is the church. Marriage weddings outside the church (houses of prayer, chapels) are allowed only in those areas where, due to circumstances, a wedding in a church is impossible, for example. in Siberia; but also in these areas - always under the indispensable condition of bishop's permission for each individual case (Article 31). 3) As for the time of marriage, according to church rules, marriages cannot be celebrated: a) in four church fasts, in the great fast from the Sunday before Maslenitsa until the first resurrection after Pasha, in Peter's fast, i.e. from the first resurrection after Trinity Day until June 29, in the Dormition fast from August 1 to 15, and finally the Nativity fast with the inclusion of 12 holidays (holidays) from the holiday The Nativity of Christ until the Feast of Epiphany, i.e. from November 14 to January 6, b) you cannot get married every week on the eve of Wednesday and Friday, in other words - on Tuesdays and Thursdays; c) on the eve of Sundays and holidays, as well as on two highly solemn days: accession to the throne and coronation. As for the time of day at which it is proper to perform marriages, the instructions instruct dean to perform marriages during the daytime, and not late in the evening. In ancient times, marriages were celebrated before mass, since it was then required that the newlyweds receive Holy Communion after the wedding. Tain. It should be noted, however, that violation of the rules regarding the days and hours appointed for marriages does not deprive the marriages of legal force; Only for violation of these rules are clergy subject to penalties defined in church laws. The marriage ends either physically - by the death of one of the spouses, after which the surviving spouse can enter into a new marriage, if his age or the number of previous marriages does not prevent him from doing so; or legally - an act of public authority, in our case ecclesiastical, which either declares a marriage that actually exists, but is not allowed by law, null and void from the very beginning, or dissolves a valid marriage due to the occurrence of any events that act on the marriage union in a destructive manner. The first act is essentially the annulment of marriage, but our civil law does not use this name, but calls this annulment the recognition of the marriage as invalid. The second act is usually called divorce, but in our civil laws it is called dissolution of marriage. All marriages entered into in violation of the essential conditions already known to us or recognized as such by the positive law of the conditions of the validity of the marriage are subject to cancellation. The following are subject to annulment: 1) marriages committed due to violence or insanity of one or both spouses, 2) marriages of persons who are already in a marriage that has not ended by death or legally dissolved, 3) marriages of persons who are in degrees of kinship and property prohibited by church laws, 4) marriages of persons who, after the dissolution of a marriage, are prohibited from entering into a new one; 5) marriages of persons who have not reached the church age of marriage (15 and 13 years old); 6) marriages of monks, priests and deacons while they are in office; and 7) marriages of Orthodox Christians with non-Christians (Vol. 10, Art. 37). The consequences of the cancellation of an illegal marriage are not the same, depending on the significance of those conditions, the absence and non-compliance with which in this marriage served as the basis for its cancellation. Namely: 1) persons whose marriage is canceled because they are in prohibited degrees of kinship and property, after separation from cohabitation, indulge only in church repentance, and then both are given the right to enter into other marriages without hindrance (Const. D. Cons. Art. 210); 2) Bigamists and bigamists, upon dissolution of an illegal marriage, return to their former legal spouses, if only these latter wish to continue cohabiting with them; otherwise, the guilty person is divorced from his legal spouse and, in addition to church penance, is condemned to permanent celibacy. When both spouses enter into other marriages, their previous union is restored unconditionally; then, upon the death of one of them, the surviving party cannot ask either for the restoration of his canceled illegal marriage, or for entering into a new marriage (Vol. 10, Art. 38–42). 3) Persons married before the church age of majority (15–13 years old) are separated from cohabitation conditionally, i.e., they are granted upon reaching civil adulthood (18 and 16 years old) and, by mutual desire, restore their former illegal cohabitation again, and their marriage is remarried again (Ust. Spirit. Cons. Art. 209), 4) All children born in illegal and invalid marriages are recognized as illegal (Article 10, Part 1, Article 132, and 4). Only the fate of children from a marriage canceled for deceit and violence is subject to the special merciful discretion of the Highest Authority. Divorce is an act of competent authority consisting of the termination of a legal and valid marriage. In order for this act to be accomplished, such reasons or grounds are necessary that would, so to speak, outweigh the idea of ​​​​the indissolubility of marriage, as a union concluded for life. The Catholic Church does not allow such grounds at all and does not know divorce, but it allows for a much larger number of reasons for the annulment of marriages than the Orthodox Church, which is even more beneficial for the parties, because the annulment of a marriage makes it possible to enter into a new one, and divorce in most cases is accompanied by a prohibition of a second marriage for the guilty party. But the Orthodox Church has never strictly insisted on the idea of ​​​​the indissolubility of marriage, which is essentially impossible to implement in its entirety. The Orthodox Church has always allowed at least one reason for divorce, namely adultery, on the grounds that it is indicated in the Gospel itself in the conversation of Christ with the Jewish lawyers - the Pharisees about whether it is permissible for a husband, for any reason, to divorce his wife. The answer given by Christ to this question is presented differently in the evangelists Matthew and Mark, since the question itself is edited differently in both Gospels. In the Gospel of Matthew, the Pharisees pose the question: “Is it permissible for a husband to divorce his wife for any fault.” Christ answered this: “Whoever lets his wife go for any reason other than adultery, and marries another, is himself guilty of adultery, and he who marries a divorced woman commits adultery.” In the Gospel of Mark the question is posed in general: “Is it permissible for a husband to let his wife go?” the answer is negative. The Catholic Church, which denies divorce even due to adultery, adheres to the Gospel of Mark, interpreting from the point of view of this Gospel the legend set out in the Gospel of Matthew in the sense that Christ allegedly did not express the thought of adultery as a reason for divorce. But in fact, from a strict canonical point of view, only this one reason for divorce is possible, consisting in violation of marital fidelity by one or the other party, since marriage is precisely concluded with the thought and intention of sexual cohabitation exclusively between two persons; therefore, if this union becomes a sexual union of not two, but three persons, then this is no longer a marriage. Through adultery, a marriage is thus internally destroyed. Divorce is only a formal recognition of this internal dissolution of marriage. But Roman and Greco-Roman law also allowed for many other reasons for divorce, which had an analogy either with adultery, or with death, which physically destroys a marriage. So, for example, an analogy with adultery is the case if a husband, in the same city where his wife lived, got himself, using civil laws, a concubine, or if the wife spent the night outside her husband’s house somewhere on the side and not with her parents; By analogy with death, the reasons for divorce were considered to be an unknown absence for 5 or 10 (for the military) years, the condemnation of one or another spouse to hard labor or exile, physical inability to marry, etc. All these reasons for divorce were established in the legislation of Justinian (mainly in his short stories), and from here they were already accepted into the church nomocanon. Since the Eastern Church itself already recognized adultery as a reason for divorce, it naturally had to recognize as reasons for divorce those that are recognized as such in civil law by analogy with adultery and death. These Greco-Roman laws, which were included in the church nomocanon, were subsequently adopted here in Russia and were in effect here until the time of Peter V., and the government did not interfere in these matters, considering, by virtue of the old statutes of Vladimir and Yaroslav, purely spiritual or ecclesiastical matters. But since the half of the last century, our state (and not church) authorities have begun to take measures to reduce the number of reasons for divorce, which were indicated in the Helmsman. The motive for such events was the same thing that prompted our state power to reduce the number of obstacles to marriage: this then-dominant population policy, which required the greatest possible patronage of the marriage union. Thus, over the course of the last century, various legislative acts have reduced the number of reasons for divorce by more than half. It is according to these laws that are included in the current Code of Civil Codes. zak. Divorce is only allowed: 1) It is the same whether it is the husband or the wife who commits adultery. (The helmsman recognizes only the wife’s adultery as a reason for divorce for the husband, but not back). By adultery, our civil law means an insult to the sanctity of marriage by the fact of sexual intercourse of one of the spouses with a stranger, whether married or single, equally, it makes no difference whether such a relationship has the nature of cohabitation or represents an isolated fact. It is only necessary that this fact satisfy the requirements of the crime of adultery, namely in relation to the subject, object and external action - in other words, that it was committed by a person who is married, that the other spouse was not himself guilty of adultery, and that the known act was an accomplished fact, and not just an attempt, and was, moreover, committed consciously and freely; therefore, adultery committed through violence, in a dream or as a result of a mistake cannot constitute grounds for divorce. The consequences of divorce due to adultery are as follows: a) prohibition of marriage to the guilty spouse forever (Const. Spirit. Cons. Art. 253); b) assignment of penance to the guilty party according to church laws. 2) Due to the inability of one or the other spouse for marital cohabitation. This inability constitutes grounds for divorce if the following conditions are met: if it is natural and generally premarital, and if at least three years have passed since the date of marriage. The consequence of a divorce due to the physical incapacity of one of the spouses is the prohibition of the inability to enter into a new marriage (Article 253). 3) Due to the unknown absence of one of the spouses for 5 years. Three facts must be established before the ecclesiastical court will proceed to decree a divorce on this ground: a) it must be established that a marriage was actually contracted between the petitioner and the absent spouse; b) that the spouse is in unknown absence; therefore, remaining in a known absence even for many years is not a reason for divorce; and c) that the absence lasted the legal period, i.e. 5 years. In addition, when collecting certificates about the absentee, it is necessary to ask local roundabout people how the absentee behaved, and whether the applicant himself gave a reason for his abandonment. It goes without saying that the spiritual court is obliged to take into account the facts obtained by the investigation, and if they do not speak in favor of the petitioner, then his request may be refused by the church court. The consequences of divorce due to unknown absence are defined in our laws as follows: a person who left his spouse and was in unknown absence for more than 5 years, in the event of a divorce for this reason, is condemned to permanent celibacy. However, this does not apply to the lower ranks of the military department who were in captivity or unknown absence from the war for more than 5 years: they are not forbidden to enter into a new marriage upon returning to their homeland if the previous marriage has already been dissolved and the abandoned wife has married another husband. 4) By a court verdict condemning one of the spouses to exile to hard labor or to settlement in Siberia with deprivation of all rights of the estate. The dissolution of the marriage does not automatically follow from this sentence, but depends on the will of the other (innocent) spouse, who, if he does not want to follow the convicted spouse, is allowed to ask his spiritual superiors to dissolve the previous marriage and enter into a new one. But if a request for divorce was not submitted, and meanwhile the exiled person is forgiven or returned from exile by a new court verdict, then the previous marriage is restored (Vol. 10, Part 1, Art. 50–55). The stated decisions were amended and supplemented by the law on December 14, 1892. This law stipulated: 1) not only an innocent spouse, but also a guilty one, and, moreover, not only deprived of all the rights of the estate, but also exiled to live in Siberia with deprivation of only special rights and advantages, can ask for a divorce. In the latter case, a request for divorce and for entering into a new marriage can be submitted by both the guilty and the innocent spouse only after two years have passed from the date the sentence entered into legal force, and exiled convicts can submit such a request after three years after the court verdict. From the concept of marriage as iuris divinis communicatio follows the requirement that there be unity of religion between the spouses. Therefore, church canons and our civil laws do not allow Christians to marry non-Christians. However, if one of the non-Christian spouses accepts Christianity, and the other spouse, remaining in the same faith, expresses a desire to continue the previous marital cohabitation, then such a marriage remains valid. Cases of such marriages were often encountered in the first centuries of Christianity, and the continuation of such a mixed marriage was made by the Apostle Paul dependent on the will of the non-Christian side, and this is because the Christian religion, in its spirit, cannot break the marriage bond and thereby offend the moral sense of the non-Christian side; in addition, the preservation of the marriage union in this case should, according to the Apostle, serve as proof that the spouse who converted to Christianity changed his religion out of conviction, and not out of a desire to break his marriage ties; Finally, the apostle meant that such mixed marriages should contribute to the spread of Christianity, through the influence of the converted party on the non-Christian side. But recognizing the indissolubility of a marriage concluded outside Christianity and becoming mixed through the conversion of one of the spouses to Christianity is another matter, and allowing marriages of Christians with people of other faiths is another matter. Ancient church rules strictly prohibited marriages of Orthodox Christians not only with the unbaptized, but also with heretics, that is, with members of Christian society who had separated from church unity as a result of disagreement with the universal church in any point of Christian doctrine (Laod. 10 and 31; Chalk. 14; Tr. 37). However, strict implementation of this rule became impossible after many Christian sects that separated from the unity of the church received recognition from the state and the character of public corporations, then the church itself could not consider the descendants of heretics as the original culprits of heresy. Thus, in canon law, a distinction has been established between formal heresy, i.e., the conscious deviation of a person who has been baptized in the Orthodox Church from its teachings, and material heresy, i.e., the actual non-belonging of a person to the church, due to the historical separation of ancestors from the unity of the church. When this difference was established, church rules on mixed marriages could no longer be strictly observed. With all the strictness, the ancient canonical rules apply only: 1) to clergy, who must always be under the stricter influence of church laws (Khalk. 14), they are forbidden even to marry their children with heretics (Carth. 30); 2) to marriages of the laity with such heretics who, in their teaching, have moved so far from the teaching of the church that they can no longer be considered Christians (Trul. 42). The ancient church rules, which unconditionally prohibited the marriage of Orthodox Christians with heretics, have been in full force in our country since the time of Peter the Great. Thus, already at the end of the 11th century, Metropolitan John II condemned the Russian princes for marrying off their daughters to princes of other faiths. Subsequently, in order to prevent such marriages, the bishops undertook, before their ordination, to make a promise that in their diocese they would not allow marriages of Orthodox Christians with heretics, namely with Armenians and Latins (Catholics). But under Peter the Great, due to the rapprochement of Rus' with Western Europe, these canonical prohibitions should have lost their force. For the first time, mixed marriages were allowed in one particular case. In 1721, when Siberia was settled by captive Swedes, the Synod began to receive requests from them for permission to marry Orthodox Christians without changing their religion. The Synod, at the insistence of the Supreme Authority, allowed such marriages on the following conditions: 1) so that the non-religious spouse does not persuade the Orthodox wife to his faith either by seduction or threats; 2) that children from such marriages be baptized and raised in the Orthodox faith; 3) that the spouse of other faiths gives a written undertaking to fulfill these conditions. Then, in 1723, the Synod issued a general law on mixed marriages, and to the specified conditions added the requirement, abolished in 1884, that a non-religious person marrying a Russian woman must accept Russian citizenship. The current laws on mixed marriages require: 1) that a subscription be collected from the non-Orthodox party for the fulfillment of the above conditions; 2) when performing mixed marriages, all conditions prescribed in the laws on marriages of Orthodox persons must be observed (Vol. 10, Part 1, Art. 67); 3) these marriages must be married in the Orthodox Church and by Orthodox priests (Ust. Spiritual Cons. Art. 26); 4) mixed marriages are dissolved on the same grounds and in the same manner as the marriages of Orthodox Christians (Vol. 10, Part 1, Art. 73). The events of birth and baptism, marriage and death are recorded in special church books (the so-called matriques or metrics). The order for the establishment of these books in Russia was first set out in the definitions of the Great Moscow Council of 1606. The purpose of this institution was initially purely ecclesiastical, consisting in having documentary evidence of events recorded in metric books, which was necessary for the church court, which was then in charge of all family and marriage matters. Peter the Great, aware of the importance of these documents not only in the church, but also in the state, since they represented very valuable material for population statistics, repeated the order to establish registry books in all churches (par. about reg. church §29 under Spiritual Reg.), and diocesan bishops were obliged to send to the Synod annually statements on the number of births and deaths in the diocese. In 1724, under the synodal decree on February 20. a uniform form of metric books was given with confirmation to diocesan bishops to annually send to the Synod list sheets from these books (sib. post. according to Veda. right Spanish vol. 4 pp. 78 and 79; Full personal zak. nom. 4480). It was not long before the clergy learned how to properly maintain metric books; back in 1779 (November 23), St. The Synod ordered the bishops to strictly confirm by dioceses that the clergy and clergy at their parish churches always have registry books; At that time there was finally a method of maintaining and storing these books, which has been observed to this day. According to their content, registry books are divided into three parts: 1) about those born, 2) about those who got married, and 3) about the dead. These books are kept by clergy on printed sheets with spaces, issued annually by church clergy from ecclesiastical consistories. In each church, registries are kept in two copies, of which one, after a year, is presented to the consistory, and the other is kept in the parish church (Ust. Spiritual Cons. Art. 99). The recording of each event indicated in the metric books is made immediately after the fulfillment of the church requirement laid down for it, but for memory or from the testimony of the family (vol. 9, art. 1038). The correct and correct maintenance of these records lies with the common responsibility of all members of the clergy, who seal each article with their signature (Article 1044). Any erasures in registers of parishes are prohibited, and if there were a scribe’s error, then what was written incorrectly is fenced off on all sides with lines and then continues, which is what is necessary (Article 1040). To prevent errors in metrical records and possible subsequent objections to their correctness, the law allows any parishioner, about whom any event is recorded personally or about members of his family in the metrical register, to ask the priest, at the end of the requirement, to show him exactly how that event was recorded and, if there was an error, to ask for correction, and to testify in writing about the accuracy of the testimony in a special column. And the clergy and clergy themselves, having performed any requirement and written it down in the metrics, are obliged to invite those present to examine the accuracy of the statement and testify to this in the metrics themselves (Ust. Spiritual Cons. Art. 100; vol. 9, art. 1046). At the end of each month, registers of births must be certified by the local clergy and signed indicating the number of births, marriages and deaths during the month. In addition, the dean, during an urgent inspection of the churches of their district, must also consider all articles of the registers of parish and testify with their signature to the fidelity and correctness of their maintenance (Article 1045). Finally, at the beginning of the next year, clergy and clergy submit their parish metrics to the Spirit. Cons., certifying at the end of the books themselves that another copy was left at the church for storage in the sacristy. When receiving metrical books from the clergy into the Spirit. Consistories strictly prohibited by law all kinds of bribery (Uk. St. Sin. 14 Feb. 1828, vol. 10 1569 ed. 1857). But this evil stopped relatively recently and by a very simple measure: by the decree of St. The Synod of 1871 allowed clergy to submit registry books to the consistory not in person, but by mail or through the dean. From the registry books delivered to the consistory from the entire diocese, a statement is compiled annually, in the established form, about the number of births, marriages and deaths for a given year in the diocese, and this statement is presented to the Synod during the annual report of the bishop on the state of the diocese (Ust. Spiritual Cons. Art. 103 and note). These statements represent one of the most valuable materials for statistics of the Orthodox population in the empire. In the consistory, registry books are stored in archives in places safe from damage and fires, for each year separately, divided by city and county. The diocesan bishops annually report to St. about the integrity of these books and whether they have been collected from all churches. Synod (vol. 9, art. 1043). Issuance of metric certificates Since the time that entry into the registers of parishes was recognized as one of the most important civil acts, it was precisely for the main proof of the rights of the estate (Vol. 9, Art. 1033) that the need naturally arose for individuals to acquire the so-called. metric certificates or extracts word for word of one or another article from metric books. Such certificates can be issued at the request of interested parties from both the parish clergy and the Spirit. Consistory. Certificates issued by parish clergy cannot replace the consistory metric certificate, but should serve only as security documents; they can receive full force only when they are submitted to the Consistory and confirmed with a signature that they are in complete agreement with the entry in the registry book kept in the Consistory (vol. 9, art. 1053). Only illegitimate children, in the case of their presentation to educational homes, are issued birth certificates directly and exclusively by parish priests, and, moreover, always in sealed envelopes with the following inscription: “certificate of an illegitimate child (referred to only by name) of such and such a district, city or village, issued by the priest of such and such a church.” (St. Sin. Decree April 4, 1869). The same metric certificates that the law recognizes as “acts of state” are issued only from consistories (Ust. Spirit. Cons. 270, 9 t. Art. 1547). They are issued freely to all persons who need them, namely: 1) to each person about the time of his birth, baptism and marriage, if necessary; 2) parents - about the birth, baptism and death of children; 3) guardians - about those under their care (Vol. 9, Art. 1048; Establishment Spirit. Cons. 271). An outsider asking for a metric certificate for another is obliged to provide a legal power of attorney from him (Art. Spirit. Cons. 272; vol. 9, 1057). When issuing metric certificates to private individuals, bribery in the Spirit. Consistories were practiced on an even wider scale than when receiving metric books from the parish clergy. Therefore St. The Synod, by its decrees, repeatedly confirmed that the issuance of a metric certificate can be applied not in person, but through some government, town, zemstvo or estate institution (Uk. St. Syn. Oct. 8, 1869, Feb. 24, 1874, July 12, 1878). If a metric certificate for a person is issued from the Consistory at the official request of some official, and then the consistory receives a private request for the issuance of a certificate for the same person, then the certificate is not issued a second time, but the applicant is left to ask for back, from where it should be, the certificate that was issued from the consistory at an official request (Ust. Spiritual Cons. 274, vol. 9, 1049). A new metric certificate for a person for whom it has already been issued is issued only upon the basis of legal evidence of the loss of the previous one. If a certificate of registration is required by a public office about such a person, then when reporting this information, the consistory notifies that the certificate has already been issued and when exactly (Ust. Spirit. Cons. 273, vol. 9, 1050). Chapter 4. Property rights of the church Property legal capacity of the church As an external institution placed in ordinary conditions of life, the church has a need for material means to achieve holy goals. Thus, for the public performance of worship, special buildings and things are necessary, which, once used for their intended purpose, naturally acquire a special sacred character and become like res sacrae, exclusively ecclesiastical, removed from ordinary civil circulation. Further, in the church there is iure divino, a special state of persons who serve exclusively the goals of the church, which means they are forced to receive the means of their existence from the church itself, which is expressed in the words of the Apostle Paul: “those who serve the altar are fed from the altar.” Thus, the right of the church to acquire property was given to it with its very existence and, therefore, is an absolutely necessary right. In a word, the church has property legal capacity for the same reason, which is why every individual in the sense of a subject of rights, that is, by virtue of internal necessity. But in order for the natural right of the church to acquire property into ownership to be clothed in all ordinary forms of private or civil law, for this it is necessary that the state, in whose sphere of activity all material goods are located, recognizes the church as a subject of rights, i.e., a legal entity. Otherwise, the church can only own property virtually, without any means of protection against possible intrusions by third parties into the scope of its property rights. This was the case in the Roman Empire in the first three centuries of church history, when Christian communities were classified as forbidden unions (collegia illicita) and when every persecution of Christians usually began with the plunder or confiscation of church property. But Constantine the Great already recognized the church’s right to acquire property of all kinds and by all legal means. First of all, the church was granted the broadest right to acquire property by will: any will in which Christ or an angel or some saint was named as the heir was recognized as valid in the sense that the bequeathed property should become the property of the local church to which the testator belongs. Bishops were given the right to ensure the exact execution of all such wills. Likewise, all legata ad piam causam, that is, in favor of the church, were exempt from the deduction of quatra Falcidia in favor of the heirs. In the German medieval states, the church, as a legal entity, received even greater privileges, and this naturally led to the extreme enrichment of church institutions with various kinds of property. But already in the XIII century. An opinion has been established among German lawyers and publicists that property acquired by the church passes “into a dead hand” (manus mortua), i.e. are withdrawn from civil circulation, which was accompanied by unfavorable consequences for general economic life. Due to this view, many governments began to publish the so-called. depreciation laws, i.e. those that limited the acquisition of real estate by the “dead hand” of the church; it was the size of refusals in favor of church institutions that was determined, and the strengthening of lands for churches was conditional on the consent of the government. In the XVI century. Such laws were adopted in the codes of almost all Western European states. But in modern times, thanks to the social upheavals of 1848, all these laws were abolished in most European countries, and all ordinary methods of acquiring all kinds of property, including real estate, were again opened to the church. However, now states no longer have anything to fear from excessive accumulation of wealth in the dead hand of the church; Times have changed - and the hand of society itself has become dead to the church. As for the Russian Church, it was until the half of the 16th century. enjoyed the most unlimited right to acquire property of all kinds. But Tsar John IV already decreed that churches and monasteries should not acquire lands for themselves without the permission of the sovereign. The same king 15 Jan. 1580. Bishops and monasteries were finally given the right to increase their land holdings in one way or another, and this definition was confirmed under Theodore Ioannovich in 1584. Since 1784, when all church and monastic lands were taken to the treasury, church regulations were left with the right to acquire ownership of only uninhabited real estate, and then only with special permission each time from the Highest (Vol. 9, Art. 386, 398). But the church has not yet been limited by anything in its right to acquire movable property and capital. Some church institutions, namely bishops' houses and monasteries, still have the right of legal inheritance: the former in various sacred things left after the bishop, even if these things were built at the testator's own expense, as well as in all the escheat property of the bishop, if he did not leave a spiritual will (IX vol., art. 395), and monasteries inherit in the sacristan things remaining after the monastic authorities, escheat the property of these authorities, in all the movable property of ordinary monks, and finally in the buildings erected inside the monastery by monks and secular investors at their own expense (vol. 9, art. 393). Subject of ownership of church property In our own sources of church law, we do not find an answer to the general theoretical question: who owns the right of ownership of individual property masses that serve one common purpose - religious, and are therefore different from any other property? During the Middle Ages, this question could not arise, since in those days no one doubted that everything, once assigned for a church purpose, should forever be church property, that is, one that is subject to special definitions of church or canon law, and not civil law. Only since the 16th century, when the Catholic Church, as a result of the Reformation, lost so many real estate properties, this issue received high practical significance and gave rise to extensive literature in which it is resolved in two main directions: some, wanting to justify secularization, argued that the church, as a legal personality, is necessarily conditioned in the sphere of property law by recognition of it in this capacity by the state, which, thus, is the supreme owner of all so-called. church property; others indicated and indicate this owner in the church itself and recognize it as such either by church communities, or church institutions, or, finally, by the entire given church. In order to lay a solid foundation for a strictly legal and canonically correct resolution of this issue, you must first establish the correct point of view on it. There can be two such points of view on the merits of the matter: church, or canonical and civil. Church law provides the following provisions for resolving this issue. First: church property, by its nature, is assigned exclusively for church purposes and therefore is not subject to private arbitrariness; in this it differs from ordinary property, the essence of which lies precisely in complete dependence on private will. Thus, church property is withdrawn from general circulation and belongs exclusively to its intended purpose, or, if it becomes the subject of civil circulation, then in this regard it is subject to the action of special church laws. It is in this sense that we must understand those passages in our sources that say that church property belongs to “God” or the “poor” - here, obviously, we mean exclusively the purpose of these properties, but the legal concept of ownership of them is not established. Second: from the indicated nature of church property, the threefold right of the church in relation to them naturally follows: the right to use these property in accordance with their purpose, the right to supervise this use and, in case of need or impossibility to use church property for its original purpose, the right to convert church things to another purpose or even alienate them. This threefold right contains the so-called. the right of ownership of church property, that is, such a right of the church that produces the same actions in relation to third parties as private property rights. The third provision of canon law: all the indicated rights in relation to church property were originally possessed by the bishop throughout his diocese. He was the representative of the legal personality of his church, the owner and manager of all church property, such, however, an owner who was obliged by church canons to use church property for its intended purpose and with the knowledge of the senior members of his clergy. But over time, such an order was established that for the maintenance of individual churches and other local church institutions, either the bishop assigned a certain part of the general church income, or donations were made from private individuals to directly known, specific church institutions. Hence, the change naturally occurred that the direct disposal and use of church property became the business of the church institutions themselves, which were therefore considered as their closest owners. But at the same time, the right to supervise the integrity and expedient use of church property, as well as, in case of need, the right to exchange and alienate them still remained with the bishop. The fourth provision of canon law: the church naturally has the right to defend its property from any extraneous claims and, in cases of secret or violent seizure of church property, to threaten it with its own punishments, as for a crime of sacrilege. But, by owning property, the church inevitably enters the sphere of purely civil legal relations. This raises the question, how should civil government and civil law treat church property? From the point of view of the latter, the answer should be as follows. First: the right and duty of the church to use its property for its intended purpose is such that for this there is no need for the assistance of the church from the state authorities. Therefore, the attitude of the church towards its property should be the same as the attitude of each owner towards his property, at the disposal of which he is the exclusive owner-dominus. The second provision: in relation to third parties, the right of church property is manifested in the right of action before a civil court for the return of one’s property from an outside owner, in the right to demand the execution of contracts and wills from persons obliged to do so, and, finally, in the fact that the alienation of church property for the acquirer serves as a legal title of acquisition. The church cannot give these rights on its own, but has them only when it is recognized by the state as a legal person, which constitutes a question of positive civil law. Such recognition is subject to the State's own discretion. However, for a Christian government this is almost a necessity and a direct duty, but for a non-Christian government, at least, it is a house of justice and a rule of political prudence. The third provision of civil law: only individual church institutions, as legal entities, can be recognized as a subject of law. Here, in the field of civil law, a strictly defined and, so to speak, tangible connection of property (res), as an object of property, with a known individual or legal entity, as the owner or master (dominus), is necessary. Such a connection between individual church institutions and their property is actually established by the very methods of acquisition, since property is usually donated, given up in a spiritual will, etc. such and such a church, such and such a monastery, such and such a church charitable institution. If this connection is terminated due to the closure or destruction of a church institution, then, by analogy with the death of a physical person, an inheritance opens up. Who is the heir? From a strictly civil point of view, it is a church institution according to which the purpose of the previous one is transferred and which, thus, seems to continue its legal existence. This is precisely what our civil law defines, prescribing that church lands, in the event of the abolition of a church, are assigned to the church to which the abolished parish is assigned (Vol. 10, Part 3, Art. 484). Objects of church property law, or types of church property In church property, a distinction is made between sacred things in the broad sense (res sacra) and church things in the narrow sense. The first includes all objects specifically designated for use during divine services and for performing religious acts; the latter may consist of any property objects serving religious or church purposes in general. Both are subject to special definitions of law. Things sacred according to their purpose are divided into sacred in the strict sense of the word and consecrated. A thing becomes sacred in the strict sense of the word through the performance of a special act of religious consecration on it or through its very use for its intended purpose, as a result of which it forever receives the character of sacred and is removed from ordinary civil circulation. Sacred things can include both real estate and movable property. First of all, sacred things include the churches themselves, or buildings designated for public church worship. The foundation of these buildings is carried out with special religious rites, the most important of which is the erection of a cross over the altar of the future church. Then, when the church is built, it is consecrated by anointing its sides with St. peace and through the position under her throne of St. relics. In a consecrated church, nothing other than worship is allowed, e.g. eat, drink, trade (the sale of wax candles is not trade, but has the nature of voluntary offerings to the church). No decorations or objects that are not of a religious nature are allowed in the church; even portraits of the highest persons are not placed. The staining of the church with human blood is recognized as desecration, which is cleansed with special prayers, and if the church is desecrated by heretics or infidels, it is sanctified again. The consecration is repeated even if, during the repair or restoration of the church, the altar is moved out of place or damaged. The very material of churches, if it is broken, is considered sacred, which is why stone and rubble from broken churches are used to build new ones, and wood is used for heating churches or for baking prosphoras (Uk. St. Syn., Oct. 9, 1742). When a church is abolished or moved to another place, the place where the throne stood is forever fenced off with a lattice or otherwise protected from desecration by people and animals. Near churches, nothing is allowed that is contrary to the feeling of reverence for the shrine. Therefore, it has become a rule for us that places for building churches should be allocated in squares, and not in the middle of ordinary houses, and if the terrain allows, they should be surrounded on all sides by a fence. It is not allowed to build drinking and entertainment houses near churches or to hold indecent exhibitions. Drinking houses can be opened no closer than 40 soots. from the church. After the churches or churches themselves, all vessels and instruments serving for the sacrament of the Eucharist are recognized as sacred things in the strict sense of the word, namely the cup and chalice, paten or dish for holy bread, communion spoon, spear and tabernacle. This also includes all other altar things, namely: the Gospels, the cross and all the decorations and frames on these objects, coverings of sacred vessels, clothes for the throne and altar (St. about nak. 221). Blessed things can also be immovable and movable. The first include: houses of worship, chapels and, in a certain sense, cemeteries. Of the movable things that have the character of consecration, according to the exact enumeration of the law, the following are: fonts and other vessels for the blessing of water, covigs, sprinkled vestments or vestments of clergy, coverings on lecterns, censers, chandeliers, lamps, candlesticks and candles already placed in them, liturgical books and bells (U. O. Art. 222). According to church rules, sacred objects cannot be converted into ordinary use, even temporarily (Ap. 73, two. 10). Therefore, they are withdrawn from civil circulation. Only in one case did ancient church rules allow the sale of church vessels when there were no other means of ransoming captives (Nom. Phot. tit. 2, ch. 2). But even in this case, it was not the most sacred vessels that were sold, but only their material in the form of ingots. The division of sacred things in the broad sense into sacred in the narrow sense and sanctified is also accepted in our criminal code. The kidnapping of both is recognized as sacrilege, but the kidnappers of the former are subject to criminal punishment to a higher degree than the latter (Code of Laws, Art. 219–233). Digging up graves to rob the dead is also equated to sacrilege (Article 234, cf. Art. 221), and the destruction and damage of tombstones and graves to desecrate the buried is recognized as a crime of blasphemy (Article 235). Ordinary church property. Ordinary church property includes all movable and immovable property that is not directly related to worship, but serves church purposes in general. According to their immediate purpose, these assets are divided: 1) into means of maintaining churches, as institutions that have a specific religious purpose; 2) for the means of maintaining the clergy, as a special class in the church and state, dedicated to the exclusive service of the church and 3) for the means to satisfy church-wide needs or achieve church-wide goals. 1. Means of maintaining churches. They are either general, belonging to all churches, or special, belonging only to certain church institutions. General funds for the maintenance of churches are made up of: a) from voluntary offerings to the church; the collection of these offerings is made either from the churches themselves during worship and is called the purse and circle collection, or outside the churches throughout the diocese. This last collection is entrusted to trusted persons, who are given from the consistory a special laced book for recording voluntary offerings (Const. D. Const. Art. 55, paragraph 2). The collector is obliged to carry out his work in compliance with the following rules: 1) collect within the boundaries of his diocese and no more than within one year; 2) do not give books to anyone for collection; 3) after a year, submit the book to the consistory for an account and evidence of the money recorded in it (Statute on transfer and criminal offenses, Articles 38 and 45); b) Further, the general funds for the maintenance of churches are made up of income from the retail sale of wax church candles. This sale constitutes a church monopoly for us, established under Peter V. by decree of February 22. 1721 In 1808, the income from this monopoly received the exclusive purpose of being a source of maintenance not for the churches themselves, but for theological schools; but by decree of January 19, 1871, the candle sum was merged with other church sums, and all churches were subject to an interest tax to strengthen the general church capital at the direct disposal of the saint. Synod and, as we shall see, a constituent means for achieving church-wide goals. Special means of maintenance are used by a) some of the church institutions that have capital and real estate, partly donated according to spiritual wills, partly constituting grants from the government. Among such church decrees are: a) bishops' houses and monasteries, which received, in return for the estates taken from them to the treasury in 1764, a salary, and in addition a certain amount of land, etc. quitrent articles or land. According to the size of the staff salary, or salary, determined for the episcopal houses in 1764, all dioceses were divided into three classes: the first included 3 metropolises, the second - 8 archdioceses, and the third - 15 bishops. First-class workers received unequal salaries (from 7 to 15 thousand rubles); second-class – all for 5,580 rubles, third-class – 4,232 rubles each. 20 kopecks During the reign of Paul I, this salary was slightly increased and then remained unchanged until January 1, 1862, when new staffs of bishops' houses and cathedrals were introduced with the abolition of the existing division of dioceses into classes (decreed by St. Syn. February 5. 1868). The total staffing amount for 52 dioceses is about 500,000 rubles. b) The monasteries that owned estates were also divided into three classes according to the states of 1764, and the amount of staff salaries was determined by the number of peasant souls in the former monastic estates. In addition to this salary, the monasteries, as well as the bishop's houses, were given various lands, forest dachas, lakes and ponds for fishing and, finally, a certain amount of land for arable land and haymaking. The size of land and lands assigned for the maintenance of monasteries by the states of Catherine II was very moderate (no more than 8 acres). But the boundary laws of Nicholas I stipulated that monasteries should be allocated from 100 to 150 dessiatines. from state-owned dachas with the best land. Of the parish churches, relatively few have special means of maintenance, that is, capital or real estate specifically designated so that the income from them is used either exclusively for the needs of the church itself, or together for the maintenance of the clergy serving with it. Such means of maintenance are used mainly by city parish churches that have shops, houses for rent, cellars, etc. on their lands. Means of maintaining clergy serving in churches. These means are also divided into general and special. The first include a) payment for fulfillment of requirements. According to church rules, this payment should be in the nature of a voluntary offering. Clergy who henceforth demand a certain payment for this or that fulfillment of demands are committing the crime of simony and violating the Gospel commandment: thou shalt eat, thou shalt give thou. But it goes without saying that these offerings cannot be a faithful and always sufficient source of content for the clergy. Therefore, Peter V. is already in the Spirit. The regulations expressed the intention that parishioners should be subject to a special tax in favor of their clergy, and that then the clergy would no longer demand remuneration for their services. But this intention also did not come true. Under Catherine II, a decree was issued that determined the fee for fulfilling requests for a prayer to a mother in labor - 2 kopecks, for the baptism of a baby - 3 kopecks, for a wedding - 10 kopecks, for the commemoration of the dead, whatever they will give, for confession and communion, nothing should be taken. However, in the same decree it was stipulated that this was only for poor and poor people, while wealthy people were allowed to pay for all their needs according to their condition and diligence. In 1809, a committee established to establish religious schools and find means to support the parish clergy saw the need to abolish the mandatory tax for services and establish a distinction between necessary requirements and those whose fulfillment depends only on the good will of the parishioners. The former are supposed to be performed free of charge, and payment for the latter is left to the discretion of the parishioners, and any extortion is still prohibited to the clergy. This prohibition remains in force to this day, the distinction between necessary and non-necessary requirements has been abolished, and payment for both has been left on the same basis, as a voluntary offering. According to the new rules “On local means of maintaining the parish clergy,” approved by the Highest on March 24, 1873, voluntary offerings for services are divided into two categories: one constitutes a personal reward either for one priest, for fulfilling exclusively the requirements of his rank, or for one of the lower members of the clergy for the performance of duties inherent in his rank. Other offerings constitute the remuneration of the clergy as a whole for the fulfillment of such church or parish requirements that are performed by all members of the clergy. The first offerings belong undividedly to the member of the clergy to whom they are made, while the second are released into the general community. the so-called fraternal circle and after a month are divided between them in the following proportion: the abbot receives three parts, the assistant two, the psalmist one. b) Lands also serve as a general means of maintaining the clergy. For the rural clergy, land has long served as one of the main means of maintenance. The allotment of land to the clergy was initially a voluntary gift from parishioners, but already in the 17th century. There are a number of government measures or decrees on the allocation of a certain amount of land to parish churches for the maintenance of local parishes. Thus, in the order of 1622, the scribes were ordered to take 10, 15 and 20 quarters in each of the three fields from local and empty lands to the churches, at a short distance from the church. The same was repeated in the order of 1677. But despite this order, many of the rural churches, even at the end of the 17th century. still had no land. In 1680, when land surveying was taking place in the Moscow district, Patriarch Joachim submitted a petition to Tsar Theodore Alekseevich, in which he asked to allocate land to poor rural churches. According to this petition, a new order was issued to the scribes, in which the amount of land for churches was precisely determined, commensurate with the size of the dachas, villages and hamlets that made up the parish of a given church: from 600 quarters it was ordered that 15 quarters be allocated to churches; from 500 to 100 quarters - 10 quarters in each field. Then in 1766, during the general delimitation of lands throughout the empire, it was ordered that all churches should be given 30 dessiatines for arable land in three fields and 3 dessiatines for hay fields. Finally, under Emperor Nicholas 1, in the regulation on ways to improve the condition of the clergy on December 6, 1829, the specified amount of land was recognized only as a minimum and it was prescribed that further allotment of lands to churches should be made on the following grounds: in state-owned villages that have land in excess of the 15-tithe proportion of taxes, as well as in mining and salt factories that are abundant in land, it is necessary to allocate to churches a triple proportion of the land compared to the legal one. Exactly, instead of 39–99; where the peasants have from 12 to 15 dessiatines for tax, the church is entitled to a double proportion - 66 dessiatines, and where the peasants own from 8-12 dessiatines there is allocated to the church one and a half portion - 49 ½ dessiatines. This provision was included in the code of land survey laws (vol. 10, part 3, art. 462). This land constitutes inviolable church property, and the clergy only has the right to use it according to certain rules (Vol. 9 on the status of Article 453). And these rules are the same according to which the circle’s income is divided, i.e., the rector is entitled to three parts of the church land, his assistant – two, the psalm-reader – one (highest approval of the law on local. medium contents. pr. spirit. March 24, 1873, §16). Special means of maintaining the parish clergy, existing only in some dioceses and parishes, include: a) interest on capital intended for the benefit of the clergy, and not the churches themselves; 2) income from church quitrent items, also intended for the benefit of the clergy, and 3) staff salaries. The latter was first assigned to the Orthodox clergy of the western provinces in 1842 in very modest amounts. Then, according to the Imperially approved journal of the Presence on the Affairs of the Orthodox Clergy on May 24, 1874, pending the search for ways to fully ensure it, the normal salaries of rural clergy were determined from the amounts allocated from the state treasury for 24 dioceses. Based on salary, these dioceses are divided into four classes. In the 1st class - rectors of rural churches are entitled to an annual salary of 240 rubles, assistants - 160, psalm-readers - 80; in the 2nd grade, rectors are entitled to 180 rubles, assistants - 120, psalm-readers - 60; in the 3rd – 160, 106 and 53 rubles, in the 4th – 144, 96 and 48 rubles. At the end of the last reign (Alexander 3), the Highest decree was issued to assign salaries to all Orthodox parish clergy in the Empire, for which it was ordered to annually contribute about 500,000 rubles to the state budget. Thus, over time, this salary will become the general means of maintaining the clergy. 3. Funds to satisfy general church needs. To satisfy these needs, at the beginning of this century, a church-wide capital was established, which is under the direct control of St. Synod. We have already noted above that the initial source of the formation of this capital was the church monopoly on the retail sale of wax candles used during divine services, a monopoly granted to the church by Peter V. But in return for this candle collection, which was initially completely distributed from the dioceses to St. Synod, decree of January 12. 1871 all churches were subject to interest taxes on purse, mug and candle income; It was from the churches of some of the poorest dioceses that it was ordered to collect 6% for general church needs, and from others 21%. (It is great that monasteries are exempt from this tax). In accordance with this decree, on May 17 of the same year, it was prescribed that at the end of each year a statement of all church capital, fees, income and donations should be submitted to the Synod. But since the main source of church income is still the candle monopoly, the clergy of each diocese, at the discretion of its unions, is allowed to set up candle factories or candle shops using local funds. Another source from which the general church capital is made up is the printing income of St. Synod on the publication of books by St. Scriptures in Slavic and Russian languages, as well as liturgical books, charters, chaplet for the dead, forms for church acts (metric books, search books, etc.). For this St. The Synod has two printing houses (one in Moscow, the other in St. Petersburg). The main church needs, the satisfaction of which is served by the general church capital, are spiritual education and assistance to Orthodox churches and clergy who do not have sufficient local funds for their maintenance; Such are precisely all the Orthodox churches in our outskirts, in the western provinces and Finland. According to the schedule of income and expenses of special funds for the department of St. The Synod for last year was appointed according to 8 articles 7 mil. rubles, and government spending on the Orthodox Church annually reaches 10 million. rub. Methods for acquiring property under current law Church institutions can acquire movable property, that is, capital or other things, by all means of acquiring private property without any restrictions, but for the acquisition of real estate by church institutions, according to the civil laws in force in our country, a preliminary request for the Highest permission is required. This is precisely the way in which real estate acquired by them is strengthened by church institutions: 1) through donations and spiritual wills; in these cases, the spiritual consistory enters into communication with whom it follows whether the donor and testator himself has the right to dispose of such property, and whether all the forms established for such cases have been observed. The consistory, with its opinion, presents the consequences of its certificates to the bishop, and if there are no obstacles to accepting the property, then the bishop informs the saint. To the Synod, in order to ask for the Highest permission, plans for the donated real estate must also be presented with this report (Vol. 10, Part 1, Art. 985); 2) through purchase, acts of acquisition of real estate by churches by purchase can only be made with the Highest permission (Vol. 10, Art. 778). If the estate is purchased for a monastery, then the abbot and the brethren must authorize someone on their behalf with a legal power of attorney to act as a buyer when making a deed of sale, but if the estate is purchased for a parish church, then such a power of attorney is given from the clergy and church ministers and the church warden (ibid., Art. 430); 3) church regulations can, on a general basis, acquire real estate by prescription, in this sense it took place on February 23. 1882 50th decision of the Civil Cassation Department of Rights. Senate, which clarified that religious institutions, i.e. churches, monasteries and bishops' houses can acquire by prescription also such immovable estate, which they improperly owned, or which they acquired from the previous owner without any written act or through such an act, during the commission of which the rules prescribed by law were not observed, including the request for the Highest permission. In addition to this, by decree of St. The Synod of September 6, 1879 decided that the church and monasteries that own real estate by prescription are not obliged to petition either for the court to recognize their ownership rights to those properties, or to ask for the Highest permission to strengthen the property they own until the need arises to sell this property or mortgage it, or to perform another action that requires a preliminary act of ownership of the property. Only in this case should the diocesan authorities intercede with St. The Synod asked for the Highest permission to strengthen real estate for churches and monasteries due to prescription of possession with the submission of a court ruling recognizing the fact of undisputed possession during the zemstvo prescription, i.e. for at least 10 years. Privileges of church property Church property, according to our current laws, enjoys the following privileges in relation to financial and judicial: 1) church houses occupied by the clergy themselves, but not those that are loaned out, are exempt from natural military post; This privilege is enjoyed not only by the Orthodox clergy, but also by other Christian denominations (Highly approved regulations on the transformation of the military quarter, article 1, pr. 2). 2) Lands and land allocated by the government for the maintenance of church institutions and the clergy, as well as those that do not and essentially cannot generate any income, are exempt from collection for local and zemstvo duties (vol. 9, art. 408, appendix to art. 55 of the statute on land. p. 2, §5). 3) City real estate owned by the ecclesiastical department and not generating income is not subject to assessment fees (City Pol. June 16, 1870, ch. 5, art. 129, p. 4). 4) The capital of church institutions, consisting of interest-bearing securities, is exempt from the state 5% tax on coupons; 5) In cases of finding or protecting their property from third parties, churches and monasteries enjoy the right of the treasury, that is, these cases are carried out on the same basis as the litigation of the treasury (Ust. Civil. Court. Art. 1282). 6) In the cassation decision of the Rights. Senate January 20 1893 (no. 2) it was explained that, within the meaning of Art. 401. 9 t. St. law, in which church lands are called “inviolable church property”, these lands are not subject to the general law of 10 years ago, i.e. they can be recovered by churches from outside owners even after the expiration of the zemstvo statute of limitations. On the right to use and immediate disposal of church property The right to use and immediately dispose of church property belongs, of course, to those individuals who represent one or another church institution as a legal personality. Thus, the property of parish churches is used and managed by members of the local clergy with the church warden, the property of monasteries - by the monastic authorities, the property of bishops' houses - by the bishop through the steward and, in certain cases, with the participation of the spiritual consistory. But since church property is the property not of these individuals, but of the church institutions themselves, it goes without saying that the right to use and dispose of these properties is limited in many respects. Namely: 1) real estate and quitrent articles of bishops' houses, monasteries and churches can be leased for no longer than 12 years, with the approval of the diocesan authorities, while internal monastic and church lands, i.e. lying within the fences of monasteries and churches cannot be leased out to any commercial, industrial or tavern establishments (Article 10, Part 1, Article 1711). 2) Houses and other real estate belonging to the ecclesiastical department that serve to support churches and parishes, in case of need, are allowed to be mortgaged to city credit institutions only with the permission of St. Synod (Name Decree June 14, 1876); but lands belonging to churches according to boundary laws can neither be pledged nor alienated (Vol. 9, Art. 403). For church capital, in order to increase it with interest, only government interest-bearing securities, and not private or public banks, can be purchased in the name of the church; Likewise, free church funds can be transferred to a current account only to a state bank or to its branches and offices, but not to private banking offices, even if the latter accepted these deposits on more favorable terms (Uk. of the Holy Synod, September 9. 1873). Church property management It actually consists of monitoring the integrity of this property and its use according to its intended purpose. The bodies of this administration are partly the representatives of church institutions themselves, partly the highest church administrative persons and institutions. In dioceses, the main management of church property belongs to the bishops and spiritual consistories, and the property of the entire Russian Church is managed in the last instance by St. Synod. In certain cases, the supreme state power also takes part in this management. Direct management of the economic affairs of church institutions belongs to the following bodies: 1) the economy of each bishop's house is managed by an economist, appointed and dismissed by the bishop. The housekeeper collects and records the income of the bishop's house, monitors their regular receipt and submits to the bishop a report on his actions and orders (Constitution of D.K. Art. 104). Since these incomes constitute the property of the bishop's house, as a legal entity, and not the bishop himself, the economy is subject to proper control by the local consistory. It is the consistory that verifies the economic books of the bishop's house and annually attests to the integrity of its property through one of the trusted clergy (of the same statute, art. 108). For these checks, the consistory has a detailed inventory of all the property of the bishop's house, according to which it is accepted both by the steward upon his appointment, and by the consistory upon his dismissal. The same audit of the property of the bishop's house is carried out when moving or in the event of the death of a bishop. In either case, if there is any loss in state property or a shortage of capital, and all this relates to the personal orders of the bishop, then everything missing is replenished from his own property (of the same charter, Articles 112 and 116). In addition to control over the integrity of church property, the consistory is included in the immediate management of the economic affairs of the house. Her participation in these matters is necessary in the following cases: a) when giving quitrent or rental maintenance of real estate and generally quitrent articles of the house; in these cases, the consistory enters into detailed consideration of the proposed lease, considers the profitability and legality of the contract and presents its personal opinion to the bishop. b) The participation of the consistory is required when it is appointed to cut down forests for sale from dachas belonging to the bishop's house. The consistory considers the general rules on the management of state forests and the benefits for the house, and submits its opinion to the bishop for consideration for presentation to St. Synod. 2) As for monastic property, its management belongs to the abbots, abbess and elder brethren, and control over this management is concentrated in the consistory, which therefore contains detailed inventories of the property of all monasteries in the diocese. The immediate supervision of the monastic economy is carried out by the diocesan authorities through the dean of the monasteries, who verify the monastery's income and expenditure books and report this to the consistory. The consistory must have correct information about the monastic income. Based on reporting rules, without the permission of the diocesan authorities, the monastery can neither give away its property as quitrent or rental maintenance, nor make any expenses in excess of 500 rubles (Constitution of D.K. Art. 118). In all other respects, the economy of monasteries is subject to the same rules that exist regarding the economy of bishops' houses. 3) The property of cathedral and other churches, parishes and non-parishes, is administered together with the clergy by the church warden. The position of church warden was established in our country under Peter V. in 1721, initially only for the sale of church candles. Subsequently, church elders were entrusted with collecting voluntary alms during services, purchasing materials needed for the church, recording church income and expenses, and, finally, storing church funds. The rights and duties of the church warden were first clearly defined by a special instruction, Supremely approved on April 17, 1808, which was published in a revised and supplemented form on June 12, 1890. According to this new instruction, the elder is an attorney of the parishioners of the church, chosen by them from among themselves, for the storage and use of church funds and, in general, for the disposal of all church property, under the supervision and guidance of the dean and diocesan authorities. The headman is elected for three years and, upon taking office, takes an oath in the prescribed form, which is not repeated if elected for another three-year term. For non-parish city churches, the mayor is elected in the city Duma on the same basis as is done during elections to city services, and for this, the dean, when the term of city elections comes, sends to the Duma a list of those persons from among whom the clergy of the non-parish churches would like to have a church warden, and the city Duma forwards their verdicts on this subject to the dean for presentation to the diocesan bishop for approval (Us. Spirit. Cons. 95 note). For house churches that are not subject to the jurisdiction of city public administration, namely for churches of educational, charitable and charitable institutions, church elders are determined and approved by the diocesan authorities of these institutions with the consent of the clergy (decree Aug. 8, 1872 no. 42). The elder’s private responsibilities in relation to the church and its property are as follows: 1) the elder must, during ordinary times of worship, collect money from those present in a wallet and mug, sell candles, accept voluntary offerings, watch over the cleanliness of the church, take care of the integrity of the church property and enter into a special inventory the acquired items, with the main supervision of all these actions of the local priest. Since the retail sale of wax candles constitutes a church monopoly, the church warden is entrusted with 2) monitoring that no one, even those belonging to the clergy, sells wax candles either in the church or in the vicinity of it, except for shops that have the right to the herd, but not to the retail sale of such candles. 3) The elder must immediately after the service put the money raised from the sale of candles, as well as money collected into the church purse and received from generous donors, into a special box, which must be behind the elder’s keys and the church seal. 4) After each month, the elder, in the presence of the entire clergy, pours out the accumulated money from the boxes and mugs, which are counted and recorded in the corded parish and expenditure book, indicating how much was in which box, then all the money is combined together and stored in the pantry or sacristy behind the elder’s keys and the seals of both him and the church. 5) The headman collects income from economic church institutions, such as from shops on church land, from church houses and cellars, and takes care of increasing such income. 6) The elder is entrusted with the purchase of things needed for the church, contracts, repairs and reconstruction, but not otherwise than with the prior consent of the clergy and the most respectable parishioners. In the case of significant costs or repairs inside the altar, the elder and the clergy seek permission from the diocesan bishop and submit a report on the amounts used to the spiritual consistory. The actual construction and repairs are carried out under the supervision of the deans (Ust. Spirit. Cons. art. 144). 7) Elders, as well as members of the clergy, are prohibited from taking church money into their homes or lending this money to someone on collateral (Vol. 9, Art. 399). But if a significant amount of church purse money accumulates, and the church does not have any needs in mind, then the church clergy sends the excess amounts to the State Bank for an increase in interest in the name of the church (Ust. Spiritual Cons. Art. 101). 8) At the end of the year, the headman, together with the clergyman, is obliged to make an account of all income and church expenses, draw up a list for them and, with the common signature of him and the members of the clergy, deliver this statement to the dean along with the books for verification. The position of a church warden comes with the following advantages: 1) In 1868, uniforms were established for church wardens, specifically for church wardens of cathedrals and parish churches in capitals and provincial cities, no matter what class they belonged to (except for peasants) a 9th class uniform, assigned to the ecclesiastical department; for elders from the same classes at churches in county towns - a 10th grade uniform; for peasants of all denominations - a caftan, established for Moscow banner bearers. 2) For diligent performance of his duties, the church warden upon dismissal from office receives a certificate of commendation from the spiritual consistory. 3) Whoever served three terms in this position and was elected to the fourth, the spiritual authorities present him with medals to wear around his neck. If the headman is a person of noble rank, then the medal is not given to him for wearing (Article 786 of the Constitutional Order of 1876). In addition, church elders who have served in this position for three three years with zeal and benefit to the church are allowed to wear the uniforms and caftans assigned to their positions. 4) Rural churchwardens, if they are peasants, are exempted from all assignments and work while they are in this position, likewise such (and only such) churchwardens are exempted from the duties of jurors (Sen. Dec. July 11, 1867) Alienation of church property Alienation, as a legal institution, can be considered, on the one hand, as a specific act of the right of disposal (which includes sale, barter, donation); on the other hand, alienation is one of the ways to limit private rights for the common benefit (expropriation, secularization). In the first case, the principles of civil law are of predominant importance, in the second, state considerations. With the exception of sacred things withdrawn from civil circulation, church property, like any other, can be alienated. But since these properties generally belong to their intended purpose, their alienation, as a specific act of disposal, cannot be the work of only individuals representing one or another church institution, but must be carried out each time with the knowledge and consent of the highest church authority (Carth. 35). According to our current laws, the sale of real estate belonging to church institutions of all denominations is carried out in relation to the rules established for the sale of lands and quitrent articles. Sales are permitted only in cases where the real estate of one or another church institution turns out to be useless for it and is not carried out except with the permission of either the diocesan authorities or the saint. Synod. The diocesan authorities may authorize the sale of unnecessary church real estate for an amount of up to 3,000 rubles. and St. Synod - up to 10,000 rubles. In particular, regarding lands belonging to parish churches, the Supreme Opinion approved on November 15, 1883. The State Council decided: 1) lands allocated to churches from parishioners for food for church clergy are not subject to alienation; private exceptions from this general rule are allowed only in particularly respectful cases when the sale or exchange of such land or part of it represents significant benefits for the church; 2) the alienation of church lands, both those belonging to the churches according to old dachas, scribe books and new fortifications, and those taken away from parishioners, is carried out only with the special Highest permission, sought through the Committee of Ministers on the proposal of the Chief Prosecutor of St. Synod; 3) the amount proceeds from the sale of church land specified in paragraph one is used exclusively for the purchase of government interest-bearing securities or for the purchase of other land to replace that sold. The income from the land acquired in this way, as well as the interest brought by state securities, goes to the benefit of the church clergy (Church. V. 1883, no. 53). All of the instructions given relate specifically to the alienation of church lands into private ownership. But church lands can also be alienated at the request of state or public benefit or need (as we noted above). Until 1870, this required the Highest permission each time, but from that year St. The Synod is allowed to authorize the alienation of church lands allocated for railways. The procedure for the alienation and compensation of church institutions for departing property is subject to the same rules that exist for the alienation of state-owned lands. We corrected the building. and further from διαταξαὶ in the publication. – Editorial of the ABC of Faith. It should be noted that the Sardinian Council (in Sofia, the present Bulgarian principality) consisted of Greek and Latin bishops, which is why its rules were published simultaneously in both languages. In the east, the Greek text of these rules was used, in the west - Latin. So the author has a building. and below instead of, for example, tripartita. – Editorial of the ABC of Faith. Some of them are nothing more than exact copies of the Serbian helmsman. Previously, dioceses, like provinces, were divided into districts and in district cities there were so-called. Spiritual Boards, but recently these boards have been closed everywhere. You might be interested in: