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

The document brought to the emperor by the sub-deacon in the Pope's name, but rejected, must be what has come down to us as the Constitution of the 14th May. It had the subscription of Vigilius, of sixteen bishops – nine Italian, three Asiatic, two Illyrian, and two African – with three Roman clergy. It decidedly rejected sixty propositions drawn from the writings of Theodore; anathematised five errors as to the Person of Christ; forbade the condemnation of Theodore's person, and of the two other Chapters. If this document was really drawn up by Vigilius, who had persisted during almost six years, as the emperor admitted, in condemning the Three Chapters, it must be explained by the Pope finding his especial difficulty in the manner of terminating the matter, so that the western bishops should be entirely satisfied that the decrees of the Council of Chalcedon remained inviolate; that he purposed only to condemn errors, but spare persons; that he wished to set his refusal against the pressure of the changeable emperor and the blind submission of the Grecian bishops, without surrendering any point of faith. Many irregularities appeared in what preceded the council and took place in it. Justinian's conduct was dishonouring to the Church, and he used force to get the decrees of the Council accepted. At last Vigilius, who seems with other bishops to have been banished, gave way to the pressure, and issued a decided condemnation of the Three Chapters, in a writing to Eutychius of 8th December, 553; and in a Constitution dated 23rd February, 554, he made no mention of the council, but gave his own decision in accordance with it, and independent of it, as he had before intended. Only by degrees the council held by Eutychius obtained the name of the Fifth General Council.

In August, 554, the Pope was again on good terms with the emperor, who issued at his request the Pragmatic Sanction for Italy. Then Vigilius set out to return to Rome, but died on his way at Syracuse in the beginning of 555. He had spent seven years in the Greek capital, in a position more difficult than had ever before occurred; ignorant himself of the language; struggling to his utmost to meet the dangers which assaulted the Church from every side. Now one and now another seemed to threaten the greater evil. He never wavered in the question of faith itself, but often as to what it was opportune to do: as whether it was advisable or necessary to condemn persons and writings which the Council of Chalcedon had spared: whether to issue a judgment which would be looked upon by the Monophysites as a triumph of their cause: which for the same reason would be utterly detested by most westerns, as a supposed surrender of the Council of Chalcedon; which, instead of closing the old divisions, might create new. Subsequent times showed the correctness of his solicitude.146

The patriarch Eutychius who presided at this council by the emperor's order, without the Pope, was held in great consideration by Justinian, and was consulted in his most important affairs. When Justinian had restored with the greatest splendour the still existing Church of Santa Sophia, Eutychius consecrated it in his presence on the 24th December, 563. Justinian then allotted to the service of the cathedral 60 priests, 100 deacons, 90 sub-deacons, 110 lectors, 120 singers, 100 ostiarii, and 40 deaconesses, a number which much increased between Justinian and Heraclius.

Justinian in his last years was minded to sanction by a formal decree a special doctrine which, after long resisting the Eutycheans, he had taken from them. It was that the Body of Christ was from the beginning incorruptible, and incapable of any change. He willed that all his bishops should set their hands to this decree. Eutychius was one of the first to resist. On the 22nd January, 565, he was taken by force from his cathedral to a monastery; he refused to appear before a resident council called by the emperor, which deposed him, and appointed a successor. He was banished to Amasea, where he died, twelve years afterwards, in the monastery which he had formerly governed.147

But Justinian had become again, by the conquest of Narses, lord of Rome and Italy, and as such, in the year 554, issued at the request of Vigilius his Pragmatic Sanction. In Italy the struggle was at an end; the land was a desert. Flourishing cities had become heaps of smoking ruins. Milan had been destroyed. Three hundred thousand are said to have perished there. Before the recal of Belisarius, fifty thousand had died of hunger in the march of Ancona. Such facts give a notion of Rome's condition. In 554, Narses returned, and his victorious host entered, laden with booty, crowned with laurels. It was his task to maintain a regular government, which he did with the title of Patricius and Commander.148 The Pragmatic Sanction was intended to establish a new political order of things in Italy, which was reunited to the empire. The two supreme officials of the Italian province were the Exarch and the Prefect. The title of Exarch then came up, and continued to the end of the Greek dominion in Italy. He united in himself the military and civil authority; but for the exercise of the latter the Prefect stood at his side as the first civil officer. Obedience to the whole body of legislation, as codified by Justinian's order, was enacted. For the rest the provisions of Constantine were followed. The administration of justice was in the hands of provincial judges, whom the bishops and the nobility chose from the ranks of the latter. It was then the bishops began to take part in the courts of justice of their own cities, as well in the choice and nomination of the officers as in their supervision.149 The words Roman commonwealth, Roman emperor, Roman army, were heard again. But no word was said of restoring a western emperor. Rome retained only an ideal precedence; Constantinople was the seat of empire. Rome received a permanent garrison, and had to share with Ravenna, where the heads of the Italian government soon permanently resided. Justinian's constitution found existing the mere shadow of a senate. The prefect of the city governed at Rome. There is mention made of a salary given to professors of Grammar and Rhetoric,150 to physicians and lawyers; but it is doubtful whether this ever came into effect. The Gothic war151 seems to have destroyed the great public libraries of Rome, the Palatine and Ulpian, as well as the private libraries of princely palaces, such as Boethius and Symmachus possessed. And in all Italy the war of extermination between Goths and Greeks swallowed up the costly treasures of ancient literature, save such remnant as the Benedictine monasteries were able to collect and preserve.152 No building of Justinian's in Rome is known. All his work of this kind was given to Ravenna. From this time forth every new building in Rome is due to the Popes.

Small reason had the Popes to rejoice that the rule of an orthodox emperor had followed at Rome that of an Arian king. Three months after the death of Vigilius at Syracuse Justinian caused the deacon Pelagius to be elected: he had difficulty in obtaining his recognition until he had cleared himself by oath in St. Peter's of an accusation that he had hastened his predecessor's death. The confirmation of the Pope's election remained with the emperor. This permanent fetter came upon the Popes from the interference of Odoacer the Herule in 484. After Justinian's death, the Romans sent an embassy to his successor complaining that their lot had been more endurable under the dominion of barbarians than under the Greeks.

When Narses,153 re-entering Rome, celebrated a triple triumph over the expulsion of barbarians from Italy, the reunion of the empire, and the Church's victory over the Arians, a contemporary historian writes that the mind of man had not power enough to conceive so many reverses of fortune, such destruction of cities, such a flight of men, such a murdering of peoples, much less to describe them in words. Italy was strewn with ruins and dead bodies from the Alps to Tarentum. Famine and pestilence, following on the steps of war, had reduced whole districts to desolation. Procopius compares the reckoning of losses to that of reckoning the sands of the sea. A sober estimate computes that one-third of the population perished, and the ancient form of life in Rome and in all Italy was extinct for ever.

But before we make an estimate of Justinian's whole action and character and their result, a subject on which we have scarcely touched has to be carefully weighed.

What was the relation between the Two Powers conceived in the mind of Justinian, expressed in his legislation, carried out in his conduct, whether to the Roman Primate or the patriarchs of Alexandria, Antioch, Jerusalem, and Constantinople in his own eastern empire, or to the whole Church when assembled in council, as at Constantinople in 553? Was he merely carrying on as emperor a relation which he had inherited from so many predecessors, beginning with Constantine, or did he by his own laws and conduct alter an equilibrium before existing, and impair a definite and lawful union by transgressing the boundaries which made it the co-operation of Two Powers.

If we look back just a hundred years before his Digest appeared, we find, in the great deed154 in which the emperors Theodosius II. and Valentinian III. convoked the Council of Ephesus, the charge which they considered to be laid upon the imperial power to maintain that union of the natural and the spiritual government on which, as on a joint foundation, the Roman State, in the judgment of its rulers, was itself built. Some of the words they use are: "We are the ministers of Providence for the advancement of the commonwealth, while, inasmuch as we represent the whole body of our subjects, we protect them at once in a right belief and in a civil polity corresponding with it".

This first and all-embracing principle of protecting all and every power which existed in the commonwealth, and maintaining it in due position, was most firmly held by Justinian. As to his own imperial authority and the basis on which it rested, he says: "Ever bearing in mind whatever regards the advantage and the honour of the commonwealth which God has entrusted to our hands, we seek to bring it to effect".155 As to the Two Powers themselves, he recognises them thus: "The greatest gifts of God to men bestowed by the divine mercy are the priesthood and the empire; the former ministering in divine things, the latter presiding over human things, and exerting its diligence therein. Both, proceeding from one and the same principle, are the ornament of human life. Therefore nothing will be so great a care to emperors as the upright conduct of bishops, for, indeed, bishops are ever supplicating God for emperors. But if what concerns them be entirely blameless and full of confidence in God, and if the imperial power rightly and duly adorn the commonwealth entrusted to it, an admirable agreement will ensue, conferring on the human race all that is for its good. We then bear the greatest solicitude for the genuine divine doctrine, and for the upright conduct of bishops, which we trust, when that doctrine is maintained, because through it we shall obtain the greatest gifts from God,156 shall be secure in the possession of those which we have, and shall acquire those which have not yet come. But all will be done well and fittingly if the beginning from which it springs be becoming and dear to God. And this we are confident will be, provided the observance of the holy canons be maintained, such as the Apostles, so justly praised and worshipped, those eye-witnesses and ministers of God the Word, have delivered down to us, and the holy Fathers have maintained and carried out."157 And he proceeds to give the force of civil law to the canons concerning the election of bishops and other matters.

In another law he says, "Be it therefore enacted158 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 century165 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.