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8.27.10

The Rights of Bishops Who Have Been Wrongly Deprived of Their Sees

by S.V. Troitskii

(Editor's note: This is an anonymous, new translation of an article by the famous Russian canon lawyer that was published in the official organ of the ROCOR: Tserkovnyia Vedomosti 14-17 (1922), under the title : "O pravakh episkopov, lishivshikhsia kafedr bez svoei viny". It was originally published on the website Historical Studies of the Russian Church Abroad.)

The changes in the borders of the majority of European states which took place after the war, led also to a change in the limits of the autocephalous Orthodox Churches and, for a time, to a significant reduction in their very numbers. Partly as a result of this, but also because of the acute nationalism which was introduced into the theory of international politics, and because of the seizure of power in Russia by anti-religious elements, a whole group of legally consecrated Orthodox diocesan bishops, without any fault on their part, were deprived of the real possibility of administering their dioceses and were forced to reside outside their territories. Thus, the question arises concerning the legal position (according to canon law) of these bishops, their liturgical and administrative rights, their attitude to the Church authority within the bounds of whose jurisdiction they have been forced to live in exile and to that authority to whom they were subject before their exile, and, finally, their attitude to their abandoned dioceses. Despite the exceptional position of these bishops, there have still been , precedents in ancient Church history which have given cause to the competent teaching organs within the Church to elucidate these questions with regard to the canonical codex of the Orthodox Church.

First of all, the canons point to the existence of the tightest and most indissoluble bonds which tie a bishop to his diocese. Because of their indissolubility, the Fathers of the Church liken them to the bonds of matrimony, and for this reason, they call a bishop who does not have a diocese a widower (Fourth Ecumenical Council, #25). Already from the fourth century, we encounter the interpretation of the Apostle's words, "the unity of husband and wife" applied to the bishop in the sense that, by bishop's wife, we are to understand his diocese which he cannot exchange under any circumstances. In the West, Blessed Jerome, for example, mentions this interpretation, and in the East, Bishop Ecumenus and Blessed Theophilact of Bulgaria speak about it. This natural interpretation of the Apostle's words indicates how the ancient Church regarded the relationship of the bishop with his diocese. On the other hand, the unlawful occupation by a bishop of another's see is often called adultery in ancient Church records. Thus, the council of 336 charged the deposed Bishop Anthimus of Constantinople with "adulterously" encroaching upon the episcopal see of that city, contrary to every church regulation and canon; and Evagrius says of Anthimus that he seized the episcopal see which obviously was bold adultery with a church which already had a groom. Nikita Paphlagonianin tells of the council of 869 that the fathers of the council deposed and excommunicated Patriarch Photius "as an adulterer" for his occupation of the throne of Constantinople during the life time of Ignatius.

The canons, beginning with those of the Apostles, do not allow a bishop to change his see for any reason whatsoever. True, the IM-th Apostles' canon permits a bishop "to transfer to another diocese", but only "if there be a good reason for doing so, on the ground that he can be of greater help to the inhabitants there, by reason of his piety. And even then, he must not do so of his own accord, but in obedience to the judgment of many Bishops and at their urgent request."

This canon is often relied on to support the transfer of bishops in some churches whose higher church authority has permitted it. But it is very doubtful whether this canon has in view the final transfer of a bishop, but rather only his temporary mission. Only Balsamon interprets it in the sense of transfer and he usually tries to reconcile the canons with contempoarary church practice. John Zonaras, on the other hand, who merely seeks to comprehend the original meaning of the canons, understands it only in the sense of a temporary removal of a bishop to another diocese for the instruction of and dialogue with the faithful for their benefit. Aristenes, although he interprets this canon in the sense of transfer, relying on the 16th and 21st canons of the Council of Antioch, the 15th of Nicaea and the 1st and 2nd of Sardicia, repeatedly says that the transfer of bishops is absolutely forbidden and for this reason the lH-th Apostolic canon has lost its force. And in fact the 21st canon of Antioch which, like several other canons of this Council, is an authoritative interpretation of the Apostolic canons, absolutely forbids the transfer of a bishop for any reason whatsoever:

"A Bishop shall not go over from one diocese to another, nor arbitrarily impose himself, even though he be constrained by the laity, nor even though he be compelled to do so by sheer coercion on the part of bishops. Instead, he must stay where he has been allotted a church by God in the beginning, and not go away from it for another, in accordance with the rule which has already been previously laid down concerning this."

However, the 1st (and 2nd) canons of the Council of Sardicia forbid under threat of total excommunication the transfer of bishops and with merciless frankness elucidate the constantly ignored true reason for such transfers:

"It is not so much the foul custom as it is the exceedingly injurious corruption of affairs that must be rooted out from the very foundation, in order that no Bishop be allowed to change from a small city to another city. For the pretext offered in excuse of this is evident on account of which such things are undertaken. For so far no Bishop has ever been found to have attempted to change from a larger city to a very small city. Hence it has to be concluded that such persons have to be regarded as motivated by an ardent sense of greed. And that they prefer to be slaves to conceitedness, so as to succeed in seemingly acquiring greater authority. All men, therefore, like this, so that such villainy ought to be the more sternly avenged. For we deem that not even laymen ought to associate witli such persons."

Even more mercilessly does the 2nd canon of this Council condemn the "intrigues and artifices" of those bishops who, in self-justification, plead some sort of desire of the people, but, in fact, it is a crowd whom they have bribed. Such bishops are subjected by the canon to an unusually strict punishment: "We therefore deem such intrigues and artifices to be punishable once for all, so that no such offender will be considered to merit even lay communion in the end." Zonaras concludes from this that the canon does not even number such bishops among Christians.

The 48th canon of Carthage even more absolutely speaks agains the transfer of bishops and confronts them with the repetition of baptism or consecration. The 5th canon of the Fourth Ecumenical Council solemnly prescribes that all these "canons established by the holy fathers be observed with full force."

Whilst definitively forbidding the transfer of a bishop from one diocese to another, the canons even at that time most unfavourably refer to a bishop's temporary leaving of his diocese.

First of all, the canons ablige a bishop who has been consecrated for a certain diocese to serve only in that diocese: "In case any Bishop who has been ordained refuses the office and the care of the laity which has been entrusted to him, he shall be excommunicated and remain so until such time as he accepts it." -36th Apostolic canon. The 17th canon of Antioch repeats this.

At the same time, the canons' aim is that a bishop will constantly reside in his diocese and leave it only for a short time, and then for sufficient cause. Undoubtedly, the canons have in view the protection of a bishop's interests in his own diocese as much as protection of the rights and interests of the bishop of the diocese to which a foreign bishop comes. According to the llth canon of Sardicia, an absence without "any urgent need or pressing matter" of a bishop cannot last any longer than the period of a layman's missing church without excommunication, i.e. three weeks. But in the case of some important matter, a bishop can be absent from his diocese no longer than six months, provided only that he has not been detained in another place by royal edict, by the fulfilment of a mission of his patriarch, or by illness. In any other case, he must be deprived of his episcopal dignity and rank, and another bishop must be appointed in his place (canon 16 of the First-and-Second Council).

As the reason for such regulations, the canons point to "the grief of the people entrusted to the bishop" (llth of Sardicia) in the event of his prolonged absence and to the possibility of the break out of "much commotion and disorganisation" (15th of First Ecumenical Council; 16th of First-and-Second).

But the canons are much more concerned with the protection of the rights of the bishop of that diocese to which a foreign bishop comes. To each diocesan bishop belongs the fullness of power within the limits of his diocese, not only be virtue of the powers on the part of some other authority, but "by the mercy of God" (21st of Antioch) as the successor of the Apostles and for this reason, suo jure.

From this fullness, sovereignty and independence of the bishop's authority arises its exclusivity, and for this reason any unwarranted interference by another bishop in diocesan affairs, even though he is the head, metropolitan or patriarch, is a breach of the basic principle of Orthodox Church order. In his interpretation of the IM-th Apostolic canon, Balsamon recounts a typical case of a certain metropolitan who preached in various dioceses subject to him, without the authority of the respective bishops, and when he was charged with this, he justified himself by saying it was impossible to see any impropriety in his manner of acting as these bishops were under his authority, and that the IM-th Apostolic canon does not prescribe punishment for this; all the more so since instruction and administration are not exclusively episcopal duties. However, the great council regarded his reasoning as incorrect. Therefore, the canons, considering that the complete prohibition against a bishop coming within the limits of another's diocese would be something "unloving and cruel" (llth of Sardicia), demand that a bishop come into another diocese only with the permission or written invitation of the local bishops and metropolitan (13th of Antioch), and thus he must have representative credentials (33rd Apostolic). This permission must stipulate his every activity as a bishop, both of a liturgical nature and as concerns teaching and administration. In particular he must not "minister to his own praises"; he must not "teach continually in church., with the object of treating the local bishop scornfully or contemptuously" (llth of Sardica). A bishop who dares to teach all the people in a city which does not belong to him, will be deprived of his episcopal see and assigned to the ranks of subject clergy (20th of Trullo). His every wilful act, "everything committed by him" must be considered completely invalid (15th of First Ecumenical Council; 13th of Antioch). In particular, every ordination performed by him without the approval of the local bishop is regarded as invalid (3Sth Apostolic; 15th of First Ecumenical Council; 13th of Ancyra; 13th and 22nd of Antioch); he himself is to return immediately to the diocese to which he was consecrated (15th of First Ecumenical), and be deprived of his rank (35th Apostolic; 13th of Antioch). A bishop may not even come to a diocese which has been deprived of its bishop, without the permission or commission of the Metropolitan (16th of Antioch).

Bishops who have dioceses are unequivocally forbidden to leave them permanently with the aim of obtaining another diocese. The canons restrict their right even temporarily to leave their diocese. But the position is completely otherwise with regard to those bishops who cannot occupy their sees, or have been deprived of them "innocently" (18th of Antioch).

The 36th Apostolic canon, which imposes excommunication on a bishop who does not wish to accept pastorship and the care of "the people entrusted to him", provides for another case:

"In case any Bishop who has been ordained refuses the office and the care of the laity which has been entrusted to him, he shall be excommunicated and remain so until such time as he accepts it. Likewise as touching a Presbyter and a Deacon. But if, upon departing, he fail to accept it. not contrary to his own inclination, but because of the spitefulness of the laity, let him be a bishop, but let the clergy of that city be excommunicated, since no one can correct such an insubordinate laity."

The 36th Apostolic canon establishes only that general guiding principle that a bishop who lives outside his diocese through no fault of his own, preserves his episcopal dignity. Later canons define the position of such a bishop in greater detail. The 18th of Ancyra points out that, on one hand, such a bishop, under pain of excommunication and deprivation of his rank, must not make any attempt to exclude other bishops from their dioceses; but, on the other hand, he can, if he wishes, return to that diocese where he was formerly a priest and there "sit with the priests". However, according to Balsamon's interpretation, (this right does not include equality in dignity v;ith the priestshe points out that he may sit with the priests owing to the absence of another higher place.

But if such a bishop may, and not must return to his own diocese, ipso facto he is given the right to reside permanently in another diocese. The canons invite local bishops to be especially attentive and careful in respect of such unfortunate exiles. The 17th of Sardica provides:

"If any Bishop who has suffered violence has been cast out unjustly, either on account of his science or on account of his confession of the catholic Church, or on account of his insisting upon the truth, and fleeing from peril, when he is innocent and jeoparded, should come to another city, let him not be prevented from living there, until he can return or can find relief from the insolent treatment he had received. For it is cruel and most burdensome for one who has had to suffer an unjust expulsion not to be accorded a welcome by us. For such a person ought to be shown great kindness and courtesy."

But such a bishop is not only a guest of the local bishop, he also preserves a portion of his episcopal rights, even in the other diocese.

"If any Bishop duly ordained to a diocese fail to go to the one to which he has been ordained, not through any fault of his own, but either because of the anfractuosity of the laity, or for some other reason for which he is not responsible, he shall retain the honour and office, only without causing any disturbance to the affairs of the church where he should be accorded a congregation. But lie shall await the outcome of the decision of a complete Synod of the province in regard to his appointment (18 of Antioch).

In other words, a bishop who has been deprived of his see through no fault of his own, preserves in another diocese his power to ordain (potestas ordinationis) but his power to govern (potestas jurisdictionis) is not retained in so far as it is incompatible with the fullness and exclusivity of the jurisdiction of the local bishop. The 37th canon of the Council of Trullo explains this more fully. As many Byzantine dioceses were seized by infidels and many bishops could not occupy their sees, the Council resolved as follows:

"Since at various times there have been inroads of barbarians, and many cities have as aresult become subject to the iniquitous, so that the President of such a city has been unable after ordination to take possession of his own throne and to be installed therein in sacerdotal state, and thus to act and employ himself in accordance with the prevailing custom of bestowing ordinations and to do everything that pertains to a Bishop, we, being determined to safeguard the rights of the priesthood to honour and respect, and being nowise disposed to consent to any curtailment of ecclesiastical rights or to allow the heathen influence to be exercised over those so ordained, and on account of the cause recited above since they are unable to gain possession of their own thrones, we have seen fit to concur in decreeing that no prejudice shall result therefrom to prevent them from bestowing ordinations canonically upon various Clergymen, and from employing the authority of the presidency in accordance with the same definition; and that any and all administration advanced by them shall be sure and duly established. For the definition of economy shall not be restricted or limited by the circumstances of necessity or be circumscribed as touching its rigour."

Briefly, in the words of Balsamon, they simply had to be regarded as if they had gone to their own dioceses and occupied their sees and in this way such bishops, by preserving their liturgical rights in other dioceses, preserved also the rights of administration in respect of the abandoned though vacant diocese; but at the same time, they preserved the same position among other bishops which their see occupied among other episcopal sees. In practice, this rule was constantly and widely applied in the Church of Constantinople, particularly when the Moslem invasion destroyed three patriarchates. The Patriarchs of Alexandria, Antioch and Jerusalem usually lived in Constantinople and administered their patriarchates and ecclesiastical dependencies from there.

"Have regard for the present rule (37th of Trullo)", Balsamon advises, "since there are people who say that the Patriarchs of Antioch, Jerusalem and others who have not managed to reach their Churches and occupy their sees, cannot take part in Synodal discussions on Church matters, nor ordain, nor perform any other episcopal act - but this rule closes their mouths. Therefore", he continues, "the metropolitan of Iconium and other eastern metropolitans who do not have Churches since they have been seized by barbarians, rightly consecrate bishops and perform all episcopal acts although they have not managed to get to their appointed Churches and be confirmed in their sees."

Further Balsamon cites the story of the emperor Alexis Komnenis which solves the question concerning the source of salary of such bishops. The emperor decrees that bishops who have been appointed to dioceses seized by barabrians and who have no possibility of being maintained by their diocese, should receive the salary accorded to the position that they occupied immediately prior to their election to the episcopate, for example, the position of steward or abbot, etc. "One notes", he says in his interpretation of the 17th canon of Sardica, "that eastern bishops who did not have their own sees since their Churches were located in areas controlled by pagans, were not expelled from the ruling city, and also bishops were persecuted by unjust collectors because they spoke up in defence of those who had been badly treated."

Finally, such a bishop has the right to occupy another diocese but, of course, not illegally but at the invitation of the local church authority, for example, in the ancient Church, at the invitation oi; the council of bishops of a metropolitan district, headed by a metropolitan (a "complete" council). This follows from the 16th canon of the Council of Antioch, which forbids a bishop who does not have a diocese from occupying a see of another bishop "without the approval of a complete Synod". Therefore, Zonaras quite correctly notes in his interpretation of this canon: "If a complete council unanimously resolves to give a vacant diocese to a bishop who does not have a diocese, this is possible in such a case." Aristenes also gives such a positive interpretation to this canon. Balsamon also understands the canon in this sense:

"Note that the present canon", he says, "grants to an idle bishop the right to perform religious rites in a vacant church and to occupy that see with the permission of a council, but I have heard on several occasions that an imperial decree is needed for this."

In a second interpretation, he clarifies the meaning of "vacant church" and "idle bishop". He writes ,

"The question has often been asked in Synod, what is an idle bishop and what is a vacant diocese? With respect to a church, there was no doubt that, by a vacant church, everyone understood a church which had been deprived of its bishop. Concerning an idle bishop, there arose much perplexity and it was accepted by everyone that an idle bishop is one who cannot make his way to the church to which he has been appointed as it has been occupied by atheistic pagans or heretics and perhaps has been defiled and there is no possibility of the bishop being confirmed in it, as in the case at the present time with Jerusalem, Antioch, Tarsus and others, as Jerusalem has been defiled by godless Agarites, the Latin patriarch holds power over the throne of Antioch and the Armenians occupy Tarsus. But the other dioceses of the patriarchates of Jerusalem and Antioch and several eastern dioceses of the patriarchate of Constantinople are not considered vacant as the Sultan, Latins and other Agarites permit the bishops to administer the dioceses as bishops and to have charge of the Christians who live there. Therefore, the bishops of these dioceses, if they are invited to do so, must make their way to their dioceses. But in some places, widowed dioceses are given to various bishops who are not idle but depressed by poverty. (This is done according to economy, for in the canon it is said, 'let a vacant diocese be given to an idle bishop'). But this does not apply here. In consequence of this, those in the Synod who allow one to whom it was given by economy to occupy a see in the Church, do nothing unpardonable and forbidden by the canons, for a see must be given to an idle bishop and not to those who already have a see. Such a bishop who receives a vacant diocese is not called bishop of that diocese to which he was formerly appointed, but bishop of the one given to him as vacant. Thus the great Gregory the Theologian was not called "of Nazianzus", but "of Constantinople", and one xvho was recently consecrated to Amassius and then transferred to Kerasunt, was called not of Amassius but of Kerasunt."

Thus, not every bishop innocently deprived of his see, or idle, has the right to occupy another see, but only one who is actually deprived of the possibility of settling in his diocese. But such a bishop can become a fully competent bishop of a vacant diocese, can occupy the see and can bear the title, not of the former see to which he was originally consecrated, but of the new see, as a result of which, of course, he loses his episcopal rights as regards his former see.

Finally, the canons envisage the exceptional case of a move by a bishop to the region of another church, not only personally but together with his flock.

Such a case occurred not long before the Council of Trullo when Archbishop John of the autocephalous church of Cyprus "together with his flock, by reason of the barbarian invasion and so as to be freed from pagan slavery and to subject themselves to the rule of a most Christian monarch" went to the Hellespont which, at that time, came within the patriarchate of Constantinople as one of its metropolitinates, whose main city was Kisik. Valuing the Archbishop's patriotism and "desiring that enslavement to pagans in no way act to the detriment of Church canons", the Council of Trullo arranged it so that the Church of Cyprus was temporarily, as it were, transferred to a new territory. In fact, the city of Justinianopolis which was newly established near Kisik, became the see of the Archbishop of Cyprus and the rights of Constantinople were given to this see. In other words, the region of the Hellespont, together with its metropolitan and all the bishops, were released from the authority of the Patriarch of Constantinople and were subjected to the Archbishop of Cyprus. The Hellespont area had to preserve this autocephaly henceforth, which is why the Council decreed that the successors of John be consecrated by their own bishops, since the Archbishop of Cyprus, who enjoyed the rights of autocephaly according to ancient custom confirmed by the 8th canon of the Council of Ephesus, was consecrated by his own bishops. This procedure for the consecration of the Archbishop of Cyprus was applied only once in practice by the successors of John, since this successor, due to the liberation of Cyprus, was able to return to his island (c. 747), and the Hellespont metropolitanate was returned to the jurisdiction of the Patriarch of Constantinople, which is mentioned by Aristines in his interpretation of this canon.

Thus we can formulate canonical norms which define the rights of an "idle" bishop, that is, one who is unable to occupy his own diocese through no fault of his own.

1. While retaining his rank (36th Apostolic canon), a bishop has the right to live in any other diocese for an unlimited time until his return to his own diocese, but the local bishop must have been specially forewarned about him (17th of Sardica); but here, he (that is, the idle bishop) preserves only the rights of conducting services, and not of administration (18th of Antioch).
2. During his stay within the confines of another diocese,
an idle bishop preserves the title of his diocese and at the same time, all the rights which stem from this with regard to his diocese and to other bishops (37th of Trullo); and he remains subject to his former church authority (39th of Trullo).

3. Then, as a ruling bishop by force of the canonical norm (21st of Antioch; 1st and 2nd of Sardica; M-Sth of Carthage) cannot be transferred to another diocese, an idle bishop has the right to occupy another vacant diocese, on the determination of the local higher church authority. In that case, he takes the title of this vacant diocese and at the same time, loses all the rights with regard to his former diocese (16th of Antioch).

4. In the case of a forced removal to the region of another autocephalous Church, with the people, the bishop preserves all those rights of internal administration and inter-church relations as he had in his former territory, and heads an autocephalous Church, independent of the local church authority (provided it was autocephalous in its forme territory), but subject to the higher church authority of the former territory, provided it was so subject formerly (39th of Trullo).

We have deliberately restricted the limits of this article t the canons and their authoritative commentators, while not intending to examine the historical facts. The storms and rocks of the sea of life can sometimes force the ship of the Church to deviate from the right course, but then it will be fair sailing if it has an accurate compass and the one at the helm follows the compass. The canonical norm is such a compass.

 

 
 

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