The Holy See and the Wandering of the Nations, from St. Leo I to St. Gregory I

by T. W. Allies

In another law he says, "Be it therefore enacted[158] that the force of law be given to the holy canons of the Church which have been set forth or confirmed by the four holy Councils; that is, by the 318 holy Fathers in the Nicene, by the 150 in that of Constantinople, by the first of Ephesus, in which Nestorius was condemned, and by Chalcedon, when Eutyches, together with Nestorius, was put under anathema. For we accept the decrees of these four synods as the Holy Scriptures, and observe their canons as laws.

"And, therefore, be it enacted according to their definitions that the most holy Pope of Old Rome is the first of all bishops, and that the most blessed archbishop of Constantinople, New Rome, holds the second place after the holy Apostolic See of Old Rome, but takes precedence of all other bishops."

In the laws just quoted we see three of the most important principles which run through the acts of Justinian. The first is, that the emperor, having the whole commonwealth committed to him by God, is the guardian both of human and divine things in it, which together make up the whole commonwealth; the second is, that there are Two Powers, the human and the divine, both derived from God. The third is, that while the emperor is the direct head of all human things, he guards divine things by accepting the decrees of General Councils as the Holy Scriptures, and by giving to the canons of the Church as descending from the Apostles, "the eye-witnesses and ministers of God the Word," the force of law.

If in these laws we find Church and State greet each other as friends, and offer each other a mutual support, because both aim at one object, and what the holiness of the Church required, advanced no less the peace, the security, and the welfare of the State, so a complete concurrence between them might be shown in all other respects.[159] The State recognised and honoured the whole constitution of the Church as it had been drawn in its first lineaments by the author of the Christian religion, as in perfect sequence it had formed itself out of the Church's inmost life, and that in force and purity, because it had been free from the pressure of external laws. The proper position of the Roman bishop as supreme head of the whole Church, the relation of the patriarchs to each other, their privileges over the metropolitans, the close connection of these with their several bishops, were never for a moment unrecognised, because so clear a consciousness of these showed itself in the whole Catholic world, that no change was possible without a general scandal. Thus the laws of Church and State kept pace with each other, when it could not but happen that the ties between patriarch and metropolitan, between metropolitan and bishop, became more stringent, as external increase was followed by decline in inward life and the fervour of faith. Thus the regular course was that the metropolitan examined the election of the bishop by the clergy and people, consecrated him, introduced him to the direction of his charge, and by the litteræ formatæ gave him his place in the fabric of the Church. So the metropolitan was consecrated by his patriarch, in whose own election all the bishops of the province, but especially the metropolitans, took part. The metropolitan summoned his bishops, the patriarchs their metropolitans, to the yearly synods. The bishops did not vote without their metropolitan; they took counsel with him, sometimes intrusted him with their votes.[160] General laws of the Church, and also imperial edicts, were transmitted first to the patriarchs, and from them to the metropolitans, and from these to the bishops. Bishops might not leave their diocese without permission of the metropolitan, nor the metropolitan without that of the patriarch.[161]

In like manner, we find in Justinian's laws the relation of the bishop to his diocese, and especially to his clergy, recognised as we find it presented by the Church from the beginning, and as the lapse of time had more and more drawn it out. The law's recognition secured it from all attack. The idea that without the bishop there is neither altar, sacrifice, nor sacrament had become, through the spirit of unity which rules the Church, a fact visible to all. The more heresies and divisions exerted their destroying and dissolving power, while the Church went on expanding in bulk, every divine service in private houses was forbidden. Since such assemblies attacked as well the peace and security of the State as the unity of belief, the governors of provinces, as well as the bishops, had most carefully to guard against such acts. Neither in city nor country could a church, a monastery, or an oratory be raised without the bishop's permission. This was made known to all by his consecrating the appointed place in solemn procession, with prayer and singing, by elevation of the cross. Without this such building was considered a place where errors lurked and deserters took refuge.[162] In this concurrent action of the laws of Church and State respecting the relation of the bishop to the whole Church and to his own clergy, we never miss the perfect union between the two even as to the smallest particulars. The conclusion is plain that the secular power did not intend to act here on the ground of its own supremacy, or as an exercise of its own majesty. Not only did it issue no new regulations whereby any fresh order should be in the smallest degree introduced: it raised to the condition of its own laws the canons which had long obtained force in the Church, whose binding power was accepted by everyone who respected the Church, as lying in themselves and in the authority from which they proceeded. These it took simply and without addition, and by so taking recognised in them the double character. So, if they were transgressed, a double penalty ensued. The Church's punitive power is contained in its legislative, the recognition of which is an acknowledgment of the former. This the State, not only tacitly but expressly, recognised. And by taking the Church's laws, it not only did not obliterate the character and dignity of that authority, from which they had issued, but it did not change the penalty, nor consider it from another point of view. It remained what it had always been, and from its nature must be, an ecclesiastical punishment. The State only lent its arm, when that was necessary, for its execution. With this, however, it was not content. The Church's life entered too deeply into the secular life. Those who were to carry on the one and sanctify the other stood in the closest connection with the whole State. So it made the canons its own proper laws, and thus attached temporal penalties to their transgression. So we find everywhere the addition that each violation would carry with it not only the divine judgment and arm the Church's hand to punish, but likewise draw down upon it the prescribed penalties from the imperial majesty.

But so far the empire was maintaining by its secular authority the proper laws and institutions of the Church. Justinian went far beyond this.[163] His legislation associated the bishop with the count in the government of cities and provinces. It gave up to him exclusively the superintendence of morality and the protection of moral interests, the control of public works and of prisons. It bestowed on him a large jurisdiction—even more, put under his supervision the conduct of public functionaries in their administration, and conferred on him a preponderating influence on their election. In a word, it by degrees displaced the centre of gravity in political life by investing the episcopate with a large portion of temporal attributions.

To give in detail what is here summed up would involve too large a space. A few specimens must suffice. The bishop in his own spiritual office would have a great regard for widows and orphans.[164] Parents when dying felt secure in recommending children to their protection against the avarice of secular judges. Hence the custom had arisen that bishops had to watch over the execution of wills, especially such as were made for benevolent purposes. They could in case of need call in the assistance of the governor. Their higher intelligence and disinterested character were in such general credit that they had no little influence in the drawing up of wills. But the State under Justinian was so far from regarding: this with jealousy, that he ordered, if a traveller should die without a will in an inn, the bishop of the place should take possession of the property, either to hand it over to the rightful heirs, or to employ it for pious purposes. If the innkeeper were found guilty of embezzlement, he was to pay thrice the sum to the bishop, who could apply it as he wished. No custom, privilege, or statute was allowed to have force against this. Those who opposed it were made incapable of testing. Down to the sixth century[165] we find no law of the Church touching the testamentary dispositions of Christians. Justinian is the first of whom we know that he entrusted the execution of wills specially to the supervision of bishops. That he did this shows the great trust which he placed in their uprightness.

It was to be expected that bishops should have a special care for the city which was their see.[166] Various laws of Justinian gave them here privileges in which we cannot fail to see the foundation of the later extension of episcopal authority and influence over the whole sphere of secular life. With their clergy and with the chief persons in the city, they took special part in the election of defensors and of the other city officers; so also in the appointment of provincial administrators. It was their duty to protect subjects against oppressions from soldiers and exaction of provision, as well as against all excessive claim of taxes and unlawful gifts to imperial officers. A governor on assuming the province was bound to assemble the bishop, the clergy, and the chief people of the capital, that he might lay before them the imperial nomination, and the extent of the duties which he was to fulfil. Thus they were enabled to judge on each occasion whether the representative of the emperor was fulfilling his charge. Magistrates, before entering on office, had to take the prescribed oath before the metropolitan and the chief citizens. The oath itself was an act made before God, and as such under cognisance of the bishop. But special regulations enjoined him to watch over the whole conduct and each particular act of the governor. If general complaints were made of injustice, he was to inform the emperor. If only an individual had suffered wrongs, the bishop was judge between both parties. If sentence was given against the accused, and he refused to make satisfaction, the matter came before the emperor in the last resort. The emperor, if the bishop had decided according to right, condemned his governor to death, because he who should have been the protector of others against wrong had himself committed wrong. If a governor was deposed for maladministration, he was not to quit the province before fifty days, and he could be accused before the bishop for every unjust transaction. Even if he was removed or transferred to another charge, and had left behind him a lawful substitute, the same proceeding took place before the bishop. On this account civil orders also were sent to the bishops to be publicly considered by them, and kept among the church documents, their fulfilment supervised, and violations reported to the emperor. But, to complete this picture, it must be remarked that this supervision was not one-sided. The emperor sent even his ecclesiastical regulations not only through the patriarch of Constantinople to the metropolitans, but through the Prætorian prefect to the governors of provinces. He directed them to support the bishops in their execution, but he likewise enjoined them to report neglect of them to the emperor. Especially they were to watch the execution of imperial decrees upon Church discipline, and monasteries in particular. The rules, so often repeated because so frequently broken, respecting the inalienability of Church property, were to be specially watched, and also the celebration, as prescribed, of yearly synods. But the civil magistrates were only recommended to keep a supervision, which did not extend to the right of official exhortation; far less that they were allowed in any ecclesiastical matter, in which the bishop might be at all in fault, to act upon their own authority, or receive an accusation against him from whomsoever and for whatsoever it might be. But the bishop could act in his quality of judge between a party and the governor himself, if the party had called upon him. Especially, Justinian allowed bishops a decisive influence upon legal proceedings in certain branches. The inspection of forbidden games, public buildings, roads, and bridges, the distribution of corn, was under them. They were to examine the competence of a security. The curators of insane persons took oath before them to fulfil their duty. If a father had named none, the bishop took part in the choice of them; the act was deposited among the church documents. If the children of an insane father wished to marry, the bishop had to determine the dowry and the nuptial donation. In the absence of the proper judge, the bishop of the city could receive complaints from those who had to make a legal demand on another, or to protect themselves from a pledge falling overdue. The proofs of a wrong account could, in the accountant's absence, be made before the bishop, and had legal force. If the ground-lord would not receive the ground-rent, the feoffee should consign it at Constantinople to the Prætorian prefect or the patriarch, in the provinces to the governor, or in his absence to the bishop of the city where the ground-lord who refused to receive it had his domicile. Whoever found no hearing, either in a civil or criminal matter, before the judge of the province, was directed to go to the bishop, who could either call the judge to him, or go in person to the judge, to invite him to do justice to the complainant according to the strict law, in order that the bishop might not be obliged to carry the refusal of justice by appeal to the imperial court.[167] If the judge was not moved by this, the bishop gave the complainant a statement of the whole case for the emperor, and the delinquent had to fear severe penalties, not alone because he had been untrue to his office, but because he did not allow himself, even at the demand of the bishop, to do what, without it, lay in the circle of his duties. But this referring to the bishop was not arbitrary—that is, not one which it lay in the will of the complainant to use or not, but necessary, so that anyone who appealed to the imperial court without this endeavour incurred, whether his complaint was founded or not, the same punishment as the judge who refused to give a decision at the bishop's request. Even if the complainant only suspected the judge, he was bound to apply to the bishop to join the judge in examining the matter, and to bring it to a strict legal issue. In the face of such honourable confidence which was placed in the bishops, and which was also justified in general by a happy result, we ought not to be surprised if either the emperor himself or inferior magistrates committed to them the termination of entangled processes, in which they exercised just such a jurisdiction as may either in general be exercised by delegates, or was committed to them for the special occasion.

The emperor[168] in his legislation left no part of the Church's discipline unregarded. His purpose was in all respects to make the State Christian; and he considered no part of divine and human things, whether it were dogma or conduct,—which, together, made up the Church's life,—withdrawn from his care and guardianship. Observances which had begun in custom, and gradually been drawn out definitely and enacted in canons, he took into his Digest, not with the intention of giving them greater inward force or stronger grounds as duties, but to show the unity of his own effort with that of the Church. He willingly put the imperial stamp on her salutary regulations. He showed his readiness to help her with external force wherever the inviolable sanctity of her laws seemed to be threatened by the opposition of individuals. In this he recognised the unchangeable order which is so deeply rooted in the nature both of Church and State, that order which is the greatest security for the wellbeing and prosperity of both. And the Church in the course of her long life had hitherto almost universally maintained this order; always, at least, in principle. If it was anywhere transgressed, it was either because the secular power was acting under special commission and approval of the Church, or, if that power acted without such approval, it met with open contradiction whereby not only the illegality of the particular action was marked, but the principle of the Church's freedom and independence was preserved.

There is a passage in the address of the eastern bishops to Tarasius, patriarch of Constantinople, quoted in the Second Nicene Council of 789,[169] the Seventh General, which cites the words of Justinian given above in one of his laws. The bishops say in their own character—and they are bishops who describe themselves "as sitting in darkness and the shadow of death, that is, of the Arabian impiety"—"It is the priesthood which sanctifies the empire and forms its basis; it is the empire which strengthens and supports the priesthood. Concerning these, a wise king, most blessed among holy princes, said: The greatest gift of God to men is the priestly and the imperial power, the one ordering and administering divine things, the other ruling human things by upright laws."