The issue of autocephaly for the Orthodox Church in Ukraine which has stirred up the contemporary Orthodox community (not only the Russian Orthodox Church but also universal Orthodoxy as a whole), is being addressed by virtue of referring to ancient regulatory legal acts establishing the boundaries of jurisdiction of the Patriarch of Moscow. The popular science essay by priest Mikhail Zheltov “Historical canonical foundations of the unity of the Russian Church”  focuses on two canonical documents: Decisions of the Constantinople Council of Eastern Patriarchs of 1593 (on the boundaries of the Moscow Patriarchate founded in 1589) and the letter of Patriarch Dionysius of 1686 (on the transfer of the Kiev Metropolia of Patriarchate of Constantinople “under the supervision” of the Patriarch of Moscow). Despite the high level of scholarly priest M. Zheltov’s erudition, his article came in for a great deal of fair and reasoned criticism. It’s problematic to agree to the conclusions of Fr. Mikhail due to their being questionable. On the other hand, the negative conclusions on the meaning and content of the ancient acts do not imply at all that the Moscow Patriarchate does not currently have canonical jurisdiction over the Kiev Metropolitanate. However, the grounds for this jurisdiction are not provided for by the documents of 1593 and 1686 years, but by the 17th canon of Chalcedon (451).
Why did the author decide to write his essay in the format of objections to Fr. Mikhail Zheltov? Firstly, my opponent is a real scholar and a man of great authority in the modern Russian-speaking scientific and theological environment. His essay immediately became popular and quoted both in the circle of modern representatives of the theological science of the Russian Orthodox Church (priest Vladimir Shmaliy, members of the Synodal Biblical and Theological Commission), and among ideological opponents of autocephaly in Ukraine from common people without theological education. But in view of his conclusions and interpretations being susceptible to criticism (even Vera Chentsova , whose research is cited by Father Michael in his work, sharply criticized his conclusions), the mistakes or biased conclusions of the author, which are criticized by me, can cast a shadow on all science and question the possibility of canonically proving the legitimacy of the jurisdiction of the Moscow Patriarch over Kiev, i.e. the results may turn out opposite to those planned by Fr. Mikhail. Secondly, it is namely Mikhail Zheltov who outlined the correct apologetical vector of the Moscow Patriarch’s right to Kiev (the 17th canon of the Council of Chalcedon), but approached it from a useless perspective for the current situation (royal power). Therefore, we will gratefully follow the path laid by Fr. Zheltov (a pioneer in the arguments on the issue raised), and having pointed to some roughness and inaccuracies, we will bring the issue to the final resolution in a scientific format. Well, in practice, it will remain with the hierarchs.
Hence, below I consider (critically and in the context of another church documentation of the XVI-XVII centuries) three documents, cited in the title of the essay, in the appropriate order: documents of 1593, 1686 and 451 years.
1. Acts of the Constantinople Council of Eastern Patriarchs of 1593 year
The main thesis in the essay of Fr. Mikhail is a statement that the Act of the Council of Constantinople of 1593 with the participation of all the Eastern Patriarchs gave grounds to Moscow to extend its jurisdiction upon Kiev. “The conciliar act of 1593 not only did not suggest the possibility of further coexistence of the two metropolitanates of “all Rus”, but also provided the Russian tsar and the Moscow Patriarch with all the necessary tools to overcome the breakaway from the West Russian metropolia at that time,” writes Fr. Zheltov . The criticism of this thesis will be presented from two perspectives:
a) Formula of the conciliar decision of 1593 (quoted as it was written by Fr. Zheltov): The Greek text: “…τὸν θρόνον τῆς εὐσεβεστάτης καὶ ὀρθοδόξου πόλεως Μοσκόβου εἶναί τε καὶ λέγεσθαι πατριαρχεῖον, διὰ τὸ βασιλείας ἀξιωθῆναι παρὰ Θεοῦ τὴν χώραν ταύτην, πᾶσάν τε Ῥωσίαν καὶ τὰ ὑπερβόρεια μέρη ὑποτάττεσθαι τῷ πατριαρχικῷ θρόνῳ Μοσκόβου καὶ πάσης Ῥωσίας καὶ τῶν ὑπερβορείων μερῶν” and the Russian translation of Fr. Mikhail: “… let the throne of the most pious and Orthodox city of Moscow be called patriarchal, because the country was rewarded by God with the royal power, and let all Rus and the northern countries be subordinated to the patriarchal throne of Moscow and all Rus and all northern countries …”. The dispute arises around two terms: “all Rus” and “northern countries.”
Protodeacon Andrei Kuraev rightly drew attention of Fr. Zheltov to the fact that that “the concept of ‘all Rus’ in the mind of contemporary father Mikhail and the author of the ‘Russian world’ concept is hardly identical with an idea of the borders of ‘all Rus’ among the Greeks of the XVI century” . From the position of Constantinople, Kiev, the Hetmanate and other lands of modern Ukraine and Belarus were then considered the lands of Poland and Lithuania, but not of “Rus” . With great reserve can this text be interpreted as an indirect hint at the right of Patriarchs to extend their jurisdiction over these lands if they become part of the Russian Empire (which, I think, is hinted at the Council’s mention of “royal power” saying that when these lands go into the hands of the Moscow tsar, then the Patriarch of Moscow will divide them according to the borders of inner regions of the Russian kingdom, but for now …).
Regarding “northern countries”, we encounter again a conflict of interpretations: “northern” with regard to Moscow or Constantinople? Fr. Zheltov understands the text in such a way that he speaks of the lands to the north of Constantinople, i.e. one should interpret it as follows: “The Patriarch of Moscow and all countries to the north of us, the Greeks.” But such a “broad” interpretation is hardly acceptable. After all, Bulgaria and Serbia are located geographically right to the north of Constantinople! It is unlikely that the Council wanted to transfer these countries to the jurisdiction of Moscow. I think that Fr. Mikhail himself does not agree with this opinion; however, it inevitably follows from the interpretation of the formula of the Council in terms of “to the north of Constantinople.” Therefore, from my point of view, the meaning of the definition suggested at the Council reads like “Moscow and the whole Russian north”. And, as it seems to me, the specifying note “northern countries” was made just to isolate the south of former Kievan Rus from Moscow’s influence, whose parts are “now” (at the time of drawing up the Council’s definitions) based in the Ottoman, Polish and Lithuanian states. We will check if my conclusions are substantiated when we consider the missive letter of 1686 year.
Yet, in all fairness, it must be admitted that Fr. Zheltov and I are in the sphere of divergent interpretations, since it is possible to interpret the Acts of 1593 in the sense suggested by my opponent. Still, how to find the correct meaning of the cited decision of the council?
To answer the question, which of us is right, one should refer to the following:
b) Documents of the Greeks, forwarded to Poland, Lithuania, Moscow, and Kiev after the year of 1593.
The very first document of this period is “Certificate of Ordination” to Job Boretsky, the Metropolitan of Kiev, Galicia and All Little Russia [ASWR, p. 187], issued by Patriarch Theophan IV of Jerusalem, who ordained the Metropolitan, in 1620, i.e. 27 years after the Decrees of the Council of 1593. In this document, Theophan appeals to “all people of spiritual rank and laity in Little Russia, in the Kingdom of Poland, in the Grand Duchy of Lithuania and Russia, and in all other states and principalities, under the power of the most honored King of Poland – to Orthodox Christians, obedient sons of the Holy Eastern Catholic Church of the Holy See of Constantinople” [ASWR, p. 184]. From this text it is obvious that Theophan (as it becomes further clear from the text of the missive letter, acting as an Exarch of the Patriarchs of Constantinople, Antioch and Alexandria), did not consider the recipients of this document to be children of the Patriarch of Moscow! Could Theophan not know about the decisions of 1593? In the text of the letters, Theophan constantly speaks on his own behalf and on behalf of “the three Apostolic Thrones, His Holiness Patriarchs, and our Co-Churches” [ASWR, p. 187-188], but does not at all mention the will of the Moscow Patriarch. Metropolitan Boretsky himself is instructed to keep “obedience to the holiest archbishop of Constantinople, New Rome, and the Ecumenical Patriarch as a truly right and natural (by rules and by nature? – SThg) pastor” [ASWR, p. 188]. Note that further Theophan titles Met. Job as “the Metropolitan of Kiev and Galicia and All Russia” [ASWR, p. 190, 191]. Thus, contrary to the conclusions of Fr. Zheltov, the Patriarchs decided to let two hierarchs “be” and titled “All Russia / Rus”.
Note that Patriarch of Constantinople Jeremiah II personally did not consider that Moscow’s jurisdiction extended to Kiev. A case in point – after the establishment of the Patriarchy in Moscow, on his way back home in August 1589 (i.e. after Patriarch Job had been enthroned), Jeremiah ordained Mikhail Ragoza in Vilno as a Metropolitan of Kiev! Later by virtue of the “certificate of ordination” given to Boretsky, Theophan anathematized Ragoza as an oath-breaker who had withdrawn from Constantinople and affiliated to Rome.
An interesting episode is described by S. Solovyov in his monumental “History of Russia”: In 1668, Joseph Neliubovich-Tukalsky (years of board 1668-1675), the last Constantinople-approved Metropolitan of Kiev, became the Metropolitan of Kiev and Exarch of Constantinople in Little Russia, Poland and Lithuania. Hence, we are again in Kiev after the reunification with Great Russia in 1654, but still independent from Moscow in ecclesiastic terms. So this metropolitan deprived one bishop of Little Russia, who had been chirotonized in Moscow before, of his hierarchal rank. It is about Methodius Philimonovich (ordained in Moscow on May 4, 1661 as a bishop of Mstislavl to become the Locum Tenens of the Patriarchal Throne of Moscow by Metropolitan Pitirim, who was subsequently elected Patriarch of Moscow). Metropolitan Joseph banished Methodius to the Uman monastery with the words, “You are not worthy to be a bishop, for you have received ordination from the Patriarch of Moscow” [7, p. 361]. The fact that later Joseph turned out to be a traitor of Moscow interests and “worked for the Turks” does not cancel the fact that he was the legal metropolitan of Kiev, whose ordination and approval were not questioned in Moscow.
The next document is a missive letter from Patriarch of Dositheos of Jerusalem dated 1678 to the believers of the Kiev Metropolia (which, after the death of Metropolitan Joseph, remained vacant under the locum-tenency of the aged archbishop Lazar Baranovich of Chernigov until 1685). Dositheos promises to report the plight of the Little Russian Orthodox to the Patriarch of Constantinople and ask him to send an exarch for Poland and Lithuania [ASWR, p. 213].
5 years after the missive letter was issued by Dositheos, in 1683 Patriarch Joachim of Moscow sent a letter to Hetman Samoilovich with a request to take care of the election of a metropolitan to Kiev [ASWR, p. 218]. But in this text Joachim relies not on the rights of his jurisdiction, but on the difficulties that have arisen for Constantinople in respect of spiritual
guidance of the flock in Poland and Lithuania. Moreover, Joachim admits that “this eparchy (Kiev — sThg) has long enjoyed spiritual guidance from the Tsarigrad Patriarch,” and therefore, Joachim justifies his participation in this matter by the fact that under the prevailing conditions we are “righteously and lawfully assisted” in cramped circumstances [ASWR, p. 220]. However, this request did not have the desired effect, so in the next 1684 he again repeated his request to Hetman Samoilovich [ASWR, p. 222]. In this case the Patriarch justifies his intervention by the threat from the “Uniates” (by the way, this is almost the first act in which the word “Uniate” occurs). In the same year, Bishop Gideon Chetvertinsky, who had fled from Volyn to Kiev (already part of the Russian kingdom, see below), sent his “vassal charter” to Patriarch Joachim [ASWR, p. 225].
Of particular interest in the matter raised is a missive letter of the same 1684 sent by the tsars of Russia John and Peter to Patriarch James of Constantinople [ASWR, p. 228]. This was when the time for the “royal argument” had come! The addressors emphasize that their father, Tsar Alexei Mikhailovich, conquered Little Russia and “settled within our state power the blessed city of Kiev and the entire Little Russia region” [ASWR, p. 229]. In this missive letter, Patriarch James is asked to grant the right to the Patriarch of Moscow to ordain metropolitans to Kiev, but guarantees are given that this state of affairs will not lead to “your prelacy … having your archdiocese belittled” [ASWR, p. 231]. So this is not about the rights of jurisdiction but only about the right to ordain only because of the long and difficult journey from Kiev to Constantinople. The logic of the letter is clear: since Kiev is now within the Russian kingdom, the journey from Kiev to Moscow is safer than the one from Kiev to Istanbul.
The Documents of 1593 and all subsequent ecclesiastical, canonical and diplomatic correspondence between Moscow and the Eastern Patriarchs indisputably testify that during the specified period Moscow did not have jurisdiction over Kiev, which was realized by both parties – Moscow and Constantinople.
2. The missive letter of Patriarch Dionysius IV of Constantinople dated 1686 on the transfer of Kiev Metropolia “to the supervision” of the Patriarch of Moscow.
Well, it arises from the aforesaid that as far back as 1684 both the Russian tsars and hetman Samoilovich with all the Kiev clergy and laity undoubtedly admitted that the Kiev Metropolitanate was part of the Patriarchate of Constantinople. After 1654, the residents of Kiev became citizens of Russia and loyal subjects of the Russian tsars, yet, in ecclesiastic terms remained children of the Ecumenical Patriarch. The
Russian tsars sought for the Patriarch of Moscow the right to ordain the Kiev metropolitan, but did not speak of Moscow’s jurisdiction over Kiev. In canonical language, this state of affairs is called “epitrophy” (ἐπιτροπικῶς) , in contrast to jurisdiction. To make it clear to a person who is inexperienced in subtleties of canonical terminology, this can be compared with two types of the “driving license”: epitrophy means by proxy, while jurisdiction is legal re-registration into ownership.
The “Constantinople’s self-consciousness” of the Kiev Metropolia was so powerful at that time that in August 1685 one of the few “pro-Moscow” bishops, Abraham Belogorodsky, sent to Moscow a secret report that in Kiev official representatives of the clergy, monastics, secular authorities and laity having been convened for the election of the metropolitan, categorically protested against his ordination in Moscow [ASWR, p. 237-243]. It should be emphasized once again that at that time all those who had gathered were already citizens of the Russian kingdom, and as early as 1654, the official secular authorities owed allegiance to tsar Aleksei Mikhailovich and his sons. The scrupulous correspondence of 1685 between Moscow and Kiev [ASWR, p. 244-283] contains one basic idea: “We cannot change jurisdiction, but we can only, according to the circumstances of the time, agree to receive ordination from the hands of the Moscow Patriarch, provided our Constantinople Patriarch gives his consent thereon.” Note also the fact that in “Confession” literary piece by Gideon Chetvertinsky, who describes his enthronement in Moscow for the arch-see in Kiev on November 8, 1685 [ASWR, p. 284-286], there are points which are contradictory to the overall line of correspondence, in particular: an oath of allegiance to the Patriarch of Moscow on behalf of Gideon and on behalf of all subsequent metropolitans without any mention of the Patriarch of Constantinople.
After Gideon had been ordained, Patriarch Joachim wrote rather an audacious letter to Ecumenical Patriarch James, in which he simply demanded that the latter transfer to Moscow all the rights of jurisdiction over Kiev: “There is no point for Your Beatitude to persist in there (i.e. in your rights to Kiev – sThg) [ASWR, p. 292]. Apparently, in view of rather an impudent tone of this letter, it was not sent to Constantinople [ASWR, p. 293], but there was sent another — a more diplomatic one instead [AYVR, p. 294]. It is noteworthy that in April 1686, Patriarch Dositheos of Jerusalem sent a blistering message to Patriarch Joachim of Moscow reproaching him for his attempt to subjugate Kiev [ASWR, p. 324]. “For what reason do you claim the diocese which is not yours? This is shame before people and a sin before God,” writes Dositheos to Joachim. In addition, the Patriarch of Jerusalem rebukes the Patriarch of Moscow in simony (in plain text!), describing how the ambassadors of the Patriarch and the Tsar of Russia simply “haggled” with the Greeks over the Kiev Metropolia. Yet, the following words in the letter of Dositheos to Joachim are of particular interest: “Your fraternal love would be sufficient; if you are an exarch [ἐπίτροπος] of the Patriarch of Constantinople, test that Kiev Metropolitan and command him, and judge him” [ASWR, p. 327].
Fr. Mikhail Zheltov disputes in his essay that the Metropolitan of Kiev (who passed, according to Father Mikhail, into the jurisdiction of the Moscow Patriarch) was granted the status of Exarch of Constantinople. However, it is clear from the message of Patriarch Dositheos that the Patriarch of Moscow himself was perceived as an Exarch of Constantinople over Kiev and consequently, not on his own behalf but on behalf of the Patriarch of Constantinople, he judged the Kiev Metropolitan. The same Patriarch Dositheos writes in another letter (to the tsars of Russia): “Let the diocese (Kiev – sThg) of Constantinople be ruled by the exarch in the person of His Holy Patriarch of Moscow” [ASWR, p. 338-339]. Here the question may arise: how does the cleric of one autocephalous church act as an epitroph of the other? But there is nothing strange in this case: for instance, Mark, the Metropolitan of Ephesus – bishop of the Constantinople Patriarchate – was sent to the Ferrara-Florence Council in 1438-1439 as an exarch [ἔξαρχος] (i.e., a higher rank than an epitroph) of the Patriarch of Antioch. This means that the Patriarch of Antioch gave his voice to the metropolitan of another autocephalous Church. Zheltov, in his turn, notes the following: “In 1561 Patriarch of Constantinople Joasaph II, on behalf of the bishops’ council … granted the right to Metropolitan (of Moscow – sThg) Macarius, in the status of Patriarchal Exarch, to crown John IV on behalf of the Patriarch himself.” It is small wonder that the Moscow Patriarch was perceived by Constantinople as its epitroph for the lands of the present-day Ukraine, Lithuania, Poland and Belarus.
It’s particularly noteworthy that by the act of 1686, only the Kiev Diocese’s own lands and the lands of Little Russia, being included in the Russian kingdom, were transferred to Moscow’s trusteeship. However, the “act of transfer” did not apply to “Transcarpathia, Bukovina, Podolia, Galicia, Volyn, ‘Khan Ukraine’ in the south and the Crimea” . Such a scenario explains the fact that as long ago as 1759, the Ecumenical Patriarch Kirill V ordained Bishop Anatoly (Meles) of Meletin especially for the Zaporozhian Sich. True though, a year later this bishop was arrested by the Russian authorities and exiled to Siberia, according to Archbishop Job Getcha . Consequently, we are again confronted with the situation where the lands that were incorporated into the Russian state remained ecclesiastically under the jurisdiction of Constantinople.
Here one should especially pay attention to one more fact. As long ago as 1686, Moscow exceeded its authority, as described by Metropolitan Hilarion Ogienko: “The Kiev Metropolitan since olden times was ‘an exarch (ἔξαρχος) of the universal throne’” , this title having been immediately taken away from the Kiev Metropolitan Gideon, although hetman Samoilovich urged Moscow to retain this title. Actually, this title was necessary for the Kiev Metropolitan due to the fact that the Orthodox
Church of Poland was subordinated to him as an Exarch of the Patriarch of Constantinople for Little Russia, Poland and Lithuania . Having lost this title, the Metropolitan of Kiev also lost his jurisdiction over the Churches that were part of his metropolia outside of Little Russia, which acceded to Great Russia in 1654. So, being the Exarch of Constantinople, the Kiev Metropolitan could extend his power to Transcarpathia, Bukovina, Podolie, Galicia, Volyn, “Khan Ukraine” in the south, Zaporozhian Sich, Crimea, Poland, and Lithuania.
Therefore, by its careless act, Moscow, having forbidden the Kiev Metropolitan to be titled as “the Exarch of the Ecumenical Patriarchal Throne,” narrowed the boundaries of his jurisdiction. This explains why the Patriarch of Constantinople directly ordained a bishop for the Zaporozhian Sich: Constantinople accepted the fact that Moscow had extended its jurisdiction over Kiev, but did not agree to transfer the land of the exarchate to Kiev. Finally, there is another important fact. “Since the land of Galicia and Transcarpathia, even in the early twentieth century, were considered the canonical territory of the Ecumenical Patriarchate, then a member of the Synod of the Russian Church, Metropolitan Anthony (Khrapovitsky) of Kiev, in order to exercise pastoral care of the Orthodox flock in these lands, wrote to the Ecumenical Patriarch for his permission and blessing, soliciting, inter alia, for the title of Exarch of Ecumenical Patriarch in Galicia and Transcarpathia. This title of Exarch of the Ecumenical Patriarch in Galicia and Transcarpathia was bestowed to the Russian hierarch through the missive letter by Ecumenical Patriarch Joachim III in 1910. Later the title of exarch was confirmed by the Ecumenical Patriarch Herman V (1913-1918).”
So, as of 1686, the Greeks regarded Joachim as a Patriarch of Moscow and Northern Rus, and as an exarch (epitroph) of Constantinople in the South of Russia. The Kiev metropolitan was considered by Constantinople as its exarch in Little Russia, Poland and Lithuania.
3. Canon 17 of IV Ecumenical Council (Chalcedon, 431) and other canons of the Ancient Church
a) Establishment of new eparchies in accordance with the administrative structure of the state.
Priest Mikhail Zheltov drew attention to the 17th canon of Chalcedon and the 38th canon of Trullo which, from his point of view, give grounds for the tsar to “re-subordinate” dioceses of one patriarch to another. “Recognizing the royal dignity of the rulers of Moscow, the fathers of the council in 1593 thereby recognized the power of the Russian tsars to influence the administrative and territorial structure of the Church, in accordance with Orthodox canon law,” writes Fr. Zheltov and right there
quotes the 38th Trullan definiton, which is a “shortened” 17th Chalcedonian canon. Here are both texts in full:
Canon 17 of Chalcedon: “Outlying or rural parishes shall in every province remain subject to the bishops who now have jurisdiction over them, particularly if the bishops have peaceably and continuously governed them for the space of thirty years. But if within thirty years there has been, or is, any dispute concerning them, it is lawful for those who hold themselves aggrieved to bring their cause before the synod of the province. And if anyone be wronged by his metropolitan, let the matter be decided by the exarch of the diocese or by the throne of Constantinople, as aforesaid. And if any city has been, or shall hereafter be newly erected by imperial authority, let the order of the ecclesiastical parishes follow the political and municipal example.
Canon 38 of Trullo: “The canon which was made by the Fathers we also observe, which thus decreed: If any city be renewed by imperial authority, or shall have been renewed, let the order of things ecclesiastical follow the civil and public models.”
From the context of both canons it can be seen that it is not about re-subordination of old dioceses but only that new cities and villages, created by the civil administration, receive their bishop in accordance with the diocesan-eparchial division of the empire. The fact that our understanding of the canons is true is confirmed by the fact that for the whole existence of the Byzantine Empire there was not a single precedent when the emperor would subordinate a diocese or a metropolitanate of one of the patriarchates to another.
The “Illyric precedent” proves our conclusions: the iconoclast emperors transferred Ilyria from the jurisdiction of the Roman bishop to Constantinople, but the Orthodox hierarchy could not have their word at that time, and when the iconoclasts were convicted, that very “thirty-year term” passed, upon expiration of which the rightful owner could no longer make a claim on the return of his possession. However, for fairness’ sake, it should be noted that there were cases of annexing an autocephalous Church to a “stronger neighbor”. For example, John Chrysostom managed to annex the Church of Ephesus to the Constantinople See as a metropolia, although Ephesus was a self-governing metropolia before that. Yet, this event was not the result of an administrative decision of the imperial power, but a headstrong dash of Chrysostom who had been fighting against the unrest in Ephesus.
Besides, the fact of the existence in the united empire of as many as 4 ancient patriarchates (Rome, Alexandria, Antioch and Jerusalem) testifies to the same thing. After all, according to the imperial logic, one should have had a single all-imperial Patriarch of Constantinople in the capital of the
empire, so there would have been no conflict between Nestorius and Cyril (427-431), as there would have been no “Dioscorus phenomenon” (449-451) with the subsequent loss of the whole Egypt for the empire.
Obviously, these canons did not give the slightest reason for the Russian tsars to pull an arch-see being in the territory of their kingdom, but within the jurisdiction of the non-Moscow Patriarch, out of subordination to its primate and attach it to Moscow.
Nevertheless, at the very beginning of our essay we postulated that it was the 17th canon of Chalcedon that entitles now the modern Moscow Patriarchate to insist on its jurisdiction over Kiev. Why so?
b) Resolving a dispute over the rights to jurisdiction by establishing a “statute of limitations” for a territory to enter any given jurisdiction.
The text of the canon itself quoted above is clearly divided into two unequal parts. The latter part refers to the “royal rights”, mentioned by Fr. Mikhail, which actually have nothing to do with the issue of the ancient arch-sees. But the former part deals with establishing the rights of jurisdiction on the basis of “statute of limitations” for the indisputable use of the see or parish. If any bishop used this territory for 30 years without any disputes (i.e., no competing claimant for these lands challenged his rights), then his rights to this territory are enshrined forever, despite the fact he would not be able to grant any legal grounds for his jurisdiction, except for the thirty-year use.
Indeed, Constantinople did not transfer the Right-Bank Ukraine to the jurisdiction of Moscow; while the Left-Bank (Hetmanate) was transferred on a “trustee” basis with honoring the rights of Constantinople (see documents  and ). But when imperial Russia, as modern Ukrainian radicals describe it, “put its hands on both the lands and the temples”, the legitimate (at that time!) first hierarch … was silent! Quietly sitting in Istanbul and keeping silent!
Almost the entire territory of present-day Ukraine came finally under the jurisdiction of the Synod of the Russian Church under Empress Catherine II († 1796), with the exception of the territories of present-day Transcarpathia, Galicia and Ternopol region. We will not consider the situation of 1686 – we may be told that at that time Constantinople did not know that its rights over Kiev were infringed upon by Moscow. We have no reason to doubt that in Kiev Gideon Chetvertinsky himself made a liturgical mention of the Ecumenical Patriarch prior to the Moscow Patriarch. The actual alienation from Constantinople was a matter of time and, like all slow processes, was elapsing unnoticed. In the XVIII century there could still be some kind of duality: Moscow considered Kiev as “its own”, while Kiev viewed the Patriarch of Moscow only as an epitroph in Kiev. However, by the beginning of the XIX century everything was already clear and unequivocal! The Kiev bishops no longer commemorated the Patriarch of Constantinople during the reign of Catherine II, while everyone gave an oath of allegiance to the empress and the Synod of the All-Russian Church.
Since 1800, Constantinople has never voiced its claims to Russia! Not a single time has the Phanar broken the communion with the Synod of the All-Russian Church! From the canonical point of view, more than 200-year silence of the Patriarchs of Constantinople can be fully regarded as a sign of consent from their side. In jurisprudence, there is such a thing as “the right of ownership obtained as a result of years of use, not contested by any of the rightful owners”. The same principle works in an ecclesiastic environment. Besides, the I Ecumenical Council by virtue of canon 6 establishes “accepted conventions” and does not recognize the documents on the rights to the arch-see. Canon 7 of the same Council affirms “customary” signs of honor to the bishop of Jerusalem, whereas the III Ecumenical Council already elevates the same arch-see (which used to be initially only a provincial diocese in the Caesarea Metropolitanate) to the status of autocephalous Church. By the 3rd canon, the II Ecumenical Council endows a provincial bishop of Byzantium with primacy of honor over other bishops – immediately after the bishop of Rome, i.e. really changes the status of the arch-see. Anyway, this is not done by the Verkhovna Rada, but by the Ecumenical Council! It hardly ever resorts to solutions that change the established order. Most often, the fathers of the Councils favored an actual, many-year order. In general, the ecclesiastic order in the lands of present-day Ukraine was under the administration of the Synod of the Russian Church (until 1917), then passed under the control of All-Russian Patriarch Tikhon, and so on until today. Constantinople “slept” (or “was diplomatically silent”) for more than 200 years, and during that time safely “overslept” (or “diplomatically procrastinated”) the moment when it could legally challenge Moscow’s jurisdiction over Kiev.
Therefore, it is now too late to wave the letters of the Ottoman period, pulled out of the dusty archives. In fact, the current legal Orthodox Church in Ukraine is one. This is the Ukrainian Orthodox Church. One can find many reasons for objective criticism of the hierarchy of the UOC, but one thing is certain: this hierarchy in the lands of Ukraine did not seize anything foreign, but came, following the succession of the episcopal service, to their arch-sees. (We take out of the brackets the situation around Lvov Council of 1946 in Western Ukraine, when all Uniate temples were seized by force and subordinated to the Moscow Patriarchate, since the situation was dictated by Stalin’s terror, and the Patriarch had nothing to do with it at all being used by the “leader of nations” who would not tolerate the slightest disobedience). This, by the way, is what distinguishes the current situation from the situation in the 18th century. The Moscow hierarchy came here to the actually vacant land. Yes, nominally this territory was then part of the Patriarchate of Constantinople, but in reality there was no existing ecclesiastic structure within Ukraine. Archbishop Job (Getcha)  was able to count only two bishops in all Ukrainian expanses, and those were actually “bishops without a cathedral and an arch-see”. The nominal arch-sees were empty for 10 years or more: Constantinople was unable to promptly send bishops to the place of deceased or murdered ones. It was the efforts of the hierarchy of the Russian Church that created and approved and developed everything what the UOC enemies want to “take over” currently using their raider methods.
In the existing canon law there are canons dedicated to the settlement of the status of a disputed territory. Canon 17 of the Council of Chalcedon / canon 25 of the Council of Trullo reads: “Outlying or rural parishes shall in every province remain subject to the bishops who now have jurisdiction over them, particularly if the bishops have peaceably and continuously governed them for the space of thirty years. But if within thirty years there has been, or is, any dispute concerning them, it is lawful for those who hold themselves aggrieved to bring their cause before the synod of the province. And if anyone be wronged by his metropolitan, let the matter be decided by the exarch of the diocese or by the throne of Constantinople, as aforesaid. And if any city has been, or shall hereafter be newly erected by imperial authority, let the order of the ecclesiastical parishes follow the political and municipal example.”
The canon speaks of a thirty-year period of the existence of parishes within one or another diocese, if no other diocese has challenged this. Let us pay particular attention to the fact that, firstly, the Council is not interested in the more ancient history of the parishes (i.e., it does not ask the question, “Whose jurisdiction was this district 300 years ago?”); secondly, it does not require review of documentary sources: only the actual indisputability of the existence of the parish in the diocese for 30 years. This is the principle of establishing the rights of jurisdiction. If during these 30 years no one has claimed rights to own the territory in question, then the one who could claim it, but failed to do it, loses those rights. One can challenge what was illegally appropriated today or yesterday, but it makes no sense to get buried in disputes over the issue of ownership from three hundred years ago. In such antiquity, we will never find an answer to contemporary questions. So, the Council does not even allow “starting a case” if the parish has peacefully existed in its status for 30 years. This canon indicates principles. Constantinople declares today that the canon purportedly “refers literally only to parishes but not to dioceses,” though this is not so. The canon really sounds as though it relates only to parishes but the reason is that by 451 the borders of dioceses had already been firmly outlined by the consent of the ecclesiastic and imperial administrations, while new dioceses were opened in accordance with the decisions of the imperial administration on establishing a new province. Therefore, any dispute about borders of dioceses themselves could not even arise at the time when this canon was drawn up. However, in its essence, this canon regulates the principle of determining the rights of jurisdiction, and since the church structure is generally unified, the principles for determining the rights of jurisdiction in relation to “disputed” parishes are the same as in relation to “disputed” dioceses or church districts.
Canon 119 (133) of the Council of Carthage prescribes that if any place was used by someone for the church purpose for three years, and there was a bishop who could challenge this place for himself during those three years, but said nothing – thus he loses the right of jurisdiction.
It should also be noted that the same set of Carthaginian canons, by definition 120 (134) on the issue of disputed territories, prescribes bishops to appeal only to the bishops’ council, and if the claimant on the right of ownership “commits an incursion” or, without a collegial decision, tries to take possession of the territory, he is subject to deprivation of what he has already got in possession.
The following words of this canon are particularly significant: “May this bishop not flatter himself that he has a letter from the superior bishop confirming the former’s rights to this place. Albeit he might have or not have a letter – he ought to establish an intercourse with the one having this place in his authority and receive a letter from him … But even if this bishop makes a certain claim, then the dispute shall be subject to the court of bishops … from neighboring bishoprics.” When applied to the situation between the two Local Churches, this means that Constantinople had to seek the right to Ukraine from the Patriarch of Moscow (today “having Ukraine in his authority”). And when Moscow refused, then it had to resolve the issue of Ukraine at the meeting of the Primates of the Local Churches. Patriarch Kirill is often blamed for not attending the Cretan Council in 2016, in consequence of which the above issue was not discussed. However, we can witness at present most of the Primates and Synods of the Local Churches –Alexandria, Antioch, Jerusalem, Georgia, Serbia, Bulgaria, Hellas, Poland, Czech lands and Slovakia, the Orthodox Church in America, which is still not recognized by Constantinople – supporting the rights of Moscow and being critical of Constantinople.
The Documents of 1593 and 1686 years do not grant Moscow the rights of jurisdiction over Kiev, or to put it simply, do not transfer the Kiev Metropolitanate from the Patriarchate of Constantinople to the Moscow Patriarchate. However, having come to the lands of the Kiev Metropolitanate, which for a long time had been in a state of complete desolation (due to oppression of the Orthodox from the Uniates, Poles, Tatars), the Moscow Patriarchate organized or rather, erected from scratch the building of church administration, hierarchy, streamlined the institution of monasticism, and for centuries spiritually nourished the flock
that inhabited the Ukrainian lands. In 1686, the Patriarch of Moscow received actually the ruins “under his guidance”; however, today the Metropolitanate of Kiev in the jurisdiction of the Moscow Patriarchate is a dominant ecclesiastic structure by the number of believers in Ukraine. For 300 years, the Moscow Patriarchate has acquired the “right to ownership”, more precisely, the right to exercise jurisdiction over Kiev, and for over 300 years it has repeatedly declared its vision of this issue. And for all these 300 years Constantinople has been aware of the position of Moscow and never challenged it, thereby losing its right to a legitimate appeal within thirty years after Moscow established jurisdiction over Kiev. Therefore, today the actions of Constantinople, which in October 2018, by the synodal decree, annulled its act of 1686 and reinstated Constantinople Stavropegion in Kiev , are illegal!
We did not write this study with the aim of weakening the rights of jurisdiction of the Moscow Patriarchate over the Kiev Church, but in order to eliminate a few false arguments from the section of completely sensible ones, which, like a fly in the ointment, can spoil its quality.