Fourth Ecumenical Council, Canon 9.previous | next
If any Clergyman has a dispute with another, let him not leave his own Bishop and resort to secular courts, but let him first submit his case to his own Bishop, or let it be tried by referees chosen by both parties and approved by the Bishop. Let anyone who acts contrary hereto be liable to Canonical penalties. If, on the other hand, a Clergyman has a dispute with his own Bishop, or with some other Bishop, let it be tried by the Synod of the province. But if any Bishop or Clergyman has a dispute with the Metropolitan of the same province, let him apply either to the Exarch of the diocese or to the throne of the imperial capital Constantinople, and let it be tried before him.
(Ap. c. LXXIV; c. VI of the 1st; cc. XVII, XXI of the 4th; cc. XIV, XV of Antioch; cc. VIII, XII, XIV, XV, XXVII, XXVIII, XXXVI, LXXXVII, XCVI, CV, CXV, CXVIII, CXXXIV, CXXXVII, CXXXVIII, CXXXIX.)
When one clergyman has a dispute with another clergyman, the present Canon prescribes that he must not leave his own bishop and present his case to secular courts, but, on the contrary, he must first present it to his bishop, or else, with the permission and consent of his bishop, he may have his case tried by referees (or chosen judges), with whom both parties, the plaintiff and the defendant, are well pleased. As for any clergyman that does otherwise, let him be subjected by the bishops to canonical penalties. But when a clergyman has a dispute with his own bishop, let the case be tried before the Synod of the province. When, again, a bishop or a clergyman has a dispute with the Metropolitan, let him go to the Exarch of the diocese, or to the throne of the imperial capital Constantinople, and let the case be tried by him.
Canon XVIII of Carthage prescribes that if presbyters and deacons are accused, the presbyter shall choose six, and the deacon three, bishops from neighboring districts, and let their own bishop try their case in conjunction with these others; and that two months’ time shall be allowed them too, and that the persons of their accusers be examined in the same way as in the case of a trial by the bishop alone. But as for the other clergymen, they are to be tried by the local bishop alone. But a single bishop cannot decide the case of any bishop or presbyter or deacon, according to c. CXVIII of the same Ec. C. of Carthage. Canon LXXXVII of the same C. says that if clergymen charged with any crime fail to prove themselves innocent within a year, they shall no longer have the right to present a defense. Canon CXV of the same C. says that if a clergyman quarreling with anyone asks the Emperor for a civil trial court, and refuses to accept the bishop’s decision, he shall be deposed from office. Justinian Novel 123 (found in Book III of the Basilica, Title I, ch. 35) further decrees that anyone who has any matter of dispute to be tried in court with a clergyman, or a monk, or a deaconess, or a nun, or any ascetic woman, he shall first take his case to the bishop to whom the litigants in question are subject; and if the bishop decide the case to the satisfaction of both parties, the ruler (i.e., the civil magistrate) is obliged to carry out the sentence pronounced by the bishop. And in the same Novel, ch. 36, it is declared that if the matter is an ecclesiastical one, the civil magistrates are to have nothing to do with it at all, but only the bishops, in accordance with the Canons, are to decide it. But in the same Novel, ch. 8, it is decreed that “if the accused one is a bishop, his Metropolitan shall examine into the facts of his case; if, on the other hand, the accused one himself is a Metropolitan, the Archbishop to whom he is subject shall examine into the facts of his case; but if the one accused is a presbyter, or a deacon, or a clergyman, or an abbot, or a monk, his bishop shall consider his case, and, according to the gravity of each one’s offense, shall impose the proper Canonical penances (or penalties).” Read also Ap. c. LXXIV and c. VI of the First.
 Like bees round a hive, various opinions have surrounded this part of the present Canon. For our own authorities, being opposed to the rule and authority of the Pope, and desirous to honor the patriarch of Constantinople, have inclined to exaggeration. Hence Macarius the bishop of Ancyra understands by “exarchs of the diocese” the other Patriarchs, while to the Patriarch of Constantinople he refers the final appeal, and he wants him to be the chief and supreme judge over all the Patriarchs. Macarius was followed also by Alexias in her History, and by Nicholas the bishop of Methone in writing against the principle of the Pope. The Papists, again, wish to establish the monarchal status of the Pope, follow our authorities and concede that the Bishop of Constantinople is chief judge over all, because the Bishop of Rome is chief even of the Bishop of Constantinople according to the Canons. So the Bishop, or Pope, of Rome is the ultimate and common judge over all the Patriarchs, and ahead of even the Patriarch of Constantinople in respect of judicature; accordingly, it is to him that any appeal must be taken from the four Patriarchs of the inhabited earth (called in Greek the “oecumene”). These Papists are Bassarion the apostate, Binius, and Belarminus. Pope Nicholas, again, in writing against Photius to Emperor Michael represents the Canon as meaning the Bishop of Rome by the phrase “Exarch of the Diocese,” and that the word “Diocese” which it employs in the singular number is to be taken to have a plural meaning of “dioceses,” just as, he says, the divine Bible often uses the singular number instead of the plural, as, for instance, where it says “there went up a mist from the earth” (Gen. 2:6), instead of saying “there went up mists from the earth.” And that the Canon says that anyone having a dispute with the Metropolitan ought to have it tried first and chiefly before the Exarch of the Diocese, that is to say, the Bishop of Rome, though by concession and on secondary grounds it may be tried before the Bishop of Constantinople. All these men, however, are wandering far astray from the truth. For the fact that the Bishop of Constantinople has no authority to officiate in the dioceses and parishes (or districts) of the other Patriarchs, nor has he been given by this Canon to grant a decision in reference to an appeal on the part of the whole Church (which means a change of judicature from any court to another and higher court, in accordance with or according to Book IX of the Basilica, Title I), is plain — first, because in Act 4 of this Council held in Chalcedon the Bishop of Constantinople named Anatolius was blamed by the rulers as well as by the whole Council for overstepping his boundaries and taking Tyre from its Bishop, namely, Photius, and handing it over to Eusebius, the Bishop of Berytus, and for deposing and excommunicating Photius. Notwithstanding that he offered many pretexts, in spite thereof whatever he had done was annulled and invalidated by the Council, and Photius was justified, and he received back the bishoprics of Tyre. That is why Isaac the Bishop of Ephesus told Michael, the first of the Palaeologi, that the Bishop of Constantinople does not extend his authority over the Patriarchates of the East (according to Pachymeres, Book 6, ch. 1); — secondly, because the civil and imperial laws do not state that only the judgment and decision of the Bishop of Constantinople is not subject to appeal, but merely says indefinitely that no appeal can be taken from the decision of any Patriarch or of the Patriarchs in the plural. For Justinian Novel 123 says to let the Patriarch of the Diocese ordain or prescribe those things which are consistent with the ecclesiastical Canons and with the laws, no party having any right to object to his decision. And Leo the Wise in the first title of his Legal Epitome says that the court of the Patriarch is not subject to appeal, while he is described by another as the source of ecclesiastical decisions; for it is from him that all courts derive their authority, and they can be resolved into him again. Even Justinian, too, in Book 3, ch. 2, of his Ecclesiastical Compilation, says: “Let the competent Patriarch examine the decision without fearing an appeal” (from his judgment); and in Book 1, Title 4, of his Ecclesiastical Injunction: “The decisions of Patriarchs cannot be appealed;” and again, in Book 1, Title 4, ch. 29: “It has been made a law by the Emperors preceding us that no appeal can be taken from the decisions rendered by Patriarchs.” So, considering the fact that according to these emperors, who agree with the sacred Canons, the decisions of all Patriarchs are insusceptible of appeal, or, in other words, they cannot be carried to the court of any other Patriarch for review, how can the Patriarch of Constantinople grant them a hearing? And if the present Canon of the 4th, or even c. XVII of this Council, had intended the Bishop of Constantinople to entertain appeals over the heads of the rest of the Patriarchs, how could the emperors have decreed the diametrically opposite and contrary view, at a time when they well knew that civil laws at variance with the Canons were null and void? — thirdly, because if we grant in accordance with the foregoing Papists that the Bishop ot Constantinople can judge the Patriarchs, and that he can review their decisions and judgments, since the Canon makes no exception of which or which Patriarch, he is therefore as a logical inference to be considered to have the right to judge himsell and also the Bishop of Rome as well, and thus the Bishop of Constantinople becomes the first and the last and the common judge of all the Patriarchs and even of the Pope himself. So, then, with the inventions by means of which they are trying to establish the monarchic office of the Bishop of Rome, they are wrecking and demolishing it with the very same arguments; — fourthly, because no one. even though he be a Metropolitan or a Patriarch, has any right to impose anything upon churches outside his jurisdiction, excepting only the ones subject to him, according to Ap. c. XXXIV and XXXV, and cc. VI and VII of the 1st, and cc. III and VIII of the 2nd; and cc. XX, XXXVI, and XXXIX of the 6th, and cc. III, XI, and XII of Sardica, and c. IX of Antioch, as well as others: this being so, how can the present Canon and the others have ordained the opposite and contrary of all these? — fifthly, because if the Bishop of Constantinople had received any such privilege, how is it that the patriarchs of Constantinople, when quarreling oftentimes with the Pope, did not claim any such right, but merely insisted that the priorities (of all) were equal? or, be that as it may, how is it that no other Christian amid their quarrels and differences ever called the Bishop of Constantinople greater than the Bishop of Rome? So the Lord liveth, He liveth! The true explanation of the Canon is this. The Exarch of the Diocese, according to Balsamon, is not the Metropolitan of the province (since a Diocese comprises many provinces and metropolis), but the Metropolitan of the Diocese; nor the Patriarch, for, as c. VI of the Second Ec. C. says, if anyone dishonors all the Bishops of the Diocese, which is the same thing as saying the Exarch of the Diocese, which indeed the present Canon does say; whereas a Synod of the Diocese and an Exarch of the Diocese occupies a different position from that held by each Patriarch together with the bishops subject to him. So the Exarch of a diocese is the Metropolitan of the diocese who has some privilege over and above the other Metropolitans of the same diocese. But this privilege of Exarchs is not today in effect. For though certain Metropolitans are called Exarchs, yet the other Metropolitans in their dioceses are not subject to them. So it appears, from what the same Balsamon says, that in those times the Exarchs of dioceses were certain others (among whom, according to Zonaras, were those of Caesarea, Cappadocia, Ephesus, Thessalonica, and Corinth) who wore polystauria in their churches. These polystauria were in reality chasubles embroidered with many crosses, as Balsamon says, on page 447 of the Juris Graecoromanus. Nevertheless, that privilege ceased to be exercised either immediately or not long after this Fourth Ec. Council was held. That explains why Justinian fails to mention it in what he says concerning disputes between clergymen, notwithstanding that he enumerates the other courts or tribunals of clergymen.
So it is evident that the Canon means that if any bishop or clergyman has a dispute or difference with the Metropolitan of an exarchy, let him apply to the Exarch of the diocese; which is the same thing as saying that clergymen and metropolitans subject to the throne of Constantinople must have their case tried either before the Exarch of the diocese in which they are situated, or before the Bishop of Constantinople, as before a Patriarch of their own. It did not say that if any clergyman has a dispute or difference with the Metropolitan of some other diocese, or if a Metropolitan has a dispute or difference with the Metropolitan of any diocese or parish whatever, they must be tried before the Bishop of Constantinople. Nor did it say, Let him apply first to the Exarch of the diocese, or to the Bishop of Constantinople, as Pope Nicholas above garbles and misexplains the Canon; but, on the contrary, it left it to the choice of the ones to be judged to determine with equal rights whether they should go to the Exarch of the diocese or to the Bishop of Constantinople and be tried in precisely the same manner and equally well either before the one or before the other. That is why Zonaras too says that the Bishop of Constantinople is not necessarily entitled to sit as judge over all Metropolitans, but (only) over those who are judicially subject to him (interpretation of c. XVII of the present 4th C.) And in his interpretation of c.V of Sardica the same authority says: “The Bishop of Constantinople must hear the appeals only of those who are subject to the Bishop of Constantinople, precisely as the Bishop of Rome must hear the appeals only of those who are subject to the Bishop of Rome.” Now, however, that the Synod and the Exarch of the diocese are no longer active or in effect, the Bishop of Constantinople is the first and sole and ultimate judge of the Metropolitans under him, but not of those under any of the rest of the Patriarchs. For it is only an ecumenical council that is the ultimate and most common judge of all Patriarchs, as we have said, and there is none othe. See also the Footnote to c. VI of the 2nd Ec. C., which spoke about the matter of diocese at greater length.
In view of the fact that, as we have stated, these Exarchs mentioned by the Canon were long ago displumed, those who are now called Exarchs, as representatives sent abroad by the Church, are mere names for ecclesiastical services.
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