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Julius and the Roman Prerogative

Timothy F. Kauffman

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Introduction

When Constantine came to power in 306 ad,he inherited a brutal persecution of Christians, an unstable empire on the cusp of civil war, a swelling bureaucracy and an overwhelming judicial caseload of felonies, misdemeanors, municipal disputes and petty disagreements. As chief justice of the empire, that backlog not only distracted him from his imperial duties, but also made justice largely inaccessible to ordinary citizens. Early in his reign, the emperor corrected the problem by establishing a tightly regulated, multi-tiered appellate system including both civil and episcopal courts, in which evidence, testimony, and rulings were meticulously documented and forwarded to the next higher court on appeal.

The change greatly reduced Constantine’s workload; it made justice more accessible to the common man, and yet still allowed litigants to appeal adverse rulings all the way up to the imperial palace if necessary. The councils and synods of the time reflect not only the Church’s embrace of Constantine’s system of appeal, but also Constantine’s embrace of the episcopal courts. In the midst of that mutual embrace Bishop Julius of Rome excoriates the plaintiffs in the trial of Athanasius for violating a longstanding custom:“Are you ignorant that the custom has been for word to be written first to us, and then for a just decision to be passed from this place?”^[1]

The question is pregnant with the rigors of Constantinian judicial reform, but scholars, historians, and apologists have for more than a millennium extracted it from its original context to make it stand alone as a declaration of Roman ecclesiastical and judicial primacy. The Roman Catholic Newman Ministry, for example, suggests that Julius’ question was “an early instance of the claims of primacy for the Bishop of Rome,”^[2] and Roman Catholic convert and apologist, Fr. Ray Ryland, claimed that it proves universal Roman papal authority in the early church.^[3] Such fanciful assessments are made in ignorance of the strict regulatory burdens Constantine’s judicial reforms imposed on defendants, plaintiffs, and appellate judges — in this case, Athanasius, his accusers, and Bishop Julius of Rome. Julius’ question meant nothing at all like what those assessments suggest.

When viewed through the lens of the ongoing early 4^th century judicial reform and its literary, conciliar, and ecclesial context, Julius’ question is understood as the demand neither of a chief justice nor of an infallible shepherd, but of a frustrated mid-level appellate judge with limited jurisdiction, looming legal deadlines, and tedious administrative obligations. With few options available to him, Julius’ precarious situation was exacerbated by an uncooperative plaintiff whose deliberate procedural violations would soon land Julius’ own ruling in a higher appellate court, and ultimately elevate it to the imperial palace for final resolution. In truth, the custom “for word to be written first to us” is not evidence of Roman primacy, but of Rome’s lower standing in Constantine’s judicial hierarchy. Julius’ litigants would have their day in a higher court, but due process required that they work their way up from below.

Because Athanasius’ trial and Julius’ question occurred in this specific judicial context, we shall first introduce the reader to Constantine’s judicial philosophy and terminology. We shall then provide a brief history of the Church’s initially cautious but ultimately enthusiastic embrace of his reform through the Councils of Arles (314 ad), Nicæa (325 ad) and Sardica (343 ad). We will then conclude by revisiting Julius’ question and his letter to Athanasius’ accusers, examining their meaning in the original context.

Constantine’s Judicial Appellate Reform

Early in his reign Constantine appears to have become familiar with the advice Jethro had given to Moses when he faced a similarly overwhelming judicial caseload. Moses’ role as chief justice had him hearing and deciding cases “from morning unto even” whenever any of his people “have a matter…between one and another.” Such a system burdened him with tedious administrative duties and the people with unreasonably long waiting periods to have their cases heard and decided. “The thing that thou doest is not good,” Jethro admonished him. “Thou wilt surely wear away, both thou, and this people that is with thee.” To preserve Moses’ well-being, to administer justice more effectively, and to make it more easily accessible, Jethro prescribed an appellate system in which lower courts could hear and settle “every small matter,” but “every great matter they shall bring unto thee.” Moses’ judicial reform was implemented successfully and “the hard causes” were brought to Moses, but “every small matter” was required to be heard in a lower court first (Exodus 18:13-26).

Appellatio (Appeal)

Constantine’s judicial reform followed a similar path by delegating authority to the provincial governors, with similar results. As John Noe?l Dillon observes in The Justice of Constantine, “Promotion of appeal helped Constantine to check the flood of extraordinary supplicationes to the imperial court,”^[4] just as Jethro’s advice had for Moses. Likewise, “[a]ccess to appeal guaranteed the subjects of the empire judicial rulings in conformance with the norms of Roman law,”^[5] just as Moses’ appellate reform guaranteed decisions in accordance with the “ordinances and laws” of God (Exodus 18:20).

These new arrangements reduced Constantine’s caseload considerably while improving access to the judicial system through a disciplined and methodical appellate process focused on accuracy and procedural rigor. Because there were harsh penalties both for unruly litigants (they would be “branded with infamy”) as well as for unscrupulous judges (they would be “visited with proper punishment”),^[6] the system was to some degree self-regulating, even under Constantine’s long arm and watchful eye. The provincial rulings were always “subject to challenge,” keeping the lower courts honest and obedient to Constantine’s judicial regulations.^[7] But litigants were also expected to be circumspect in their pleas, because the Emperor’s patience was not inexhaustible. He would not suffer “dilatory and frustrative deferments that are not appeals but mockeries.”^[8]

Constantine’s reforms, therefore, had made justice widely accessible, but had also made all participants — judges and litigants — ultimately accountable to him. That accountability manifested in a meticulous process of written recordkeeping consisting of “a dossier in the form of a consultation in which all the pertinent documents are brought by official couriers to the imperial court.”^[9]

Instructio Plena (Full Documentation)

Under the new system, appellate judges were to compile rulings, sententiæ, “after having heard the actions of both parties.”^[10] All the relevant information — statements from litigants, testimony of witnesses, decisions of judges — was to be documented thoroughly. “The instructio consisted of several documents, all of which should have been recorded in the official proceedings of the court, the acta or gesta, by the officium of the presiding judge.”^[11] It was the duty of the presiding judge to ensure that “all records be sent to the imperial court.” Full compliance meant that all “documentation be inserted in the proceedings/records.”^[12]

To represent the interests of litigants, “a thorough interrogation of the parties” was required in the event it was necessary “to refer the case to the emperor” on appeal. Incomplete dossiers were forbidden: “nor may anything be sent to Us that lacks full documentation (instructio plena).”^[13] In an edict of 321 ad, Constantine provided explicit and detailed instructions on the obligation of the judge to conduct a “full inquiry” that concluded only when he had achieved “the complete satisfaction of the litigants.” “By repeated inquiry and by continued interrogation the judge shall demand whether there is any new matter remaining which should be added to the allegations.”^[14]

Because the system was designed to be both thorough and equitable, the litigants were on notice that the last opportunity to make additional accusations or provide exculpatory evidence was during the initial trial. It was forbidden to include any additional complaints or defenses apart from that which was included in the dossier. “No person shall put anything in his petitions in rebuttal which he neglected to assert in the trial,” and both parties “must be compelled” to comply, for it was prohibited to add anything that had not been brought initially “before the trial judge.”^[15] The rules were quite clear. If a litigant did not submit a proper rebuttal within the allotted five day window, the dossier was to be forwarded to the Emperor without it: “For when the five days have elapsed, you must not grant a hearing to a litigant offering petitions in rebuttal, but because such petitions were not offered within the time fixed, you must refer all records to Our Wisdom without them.”^[16]

Although Constantine’s appellate system was generously available to all, there would be no latitude for manipulation, deception, diversionary tactics or willful noncompliance. Everything — everything — that had been considered in the lower judge’s sententiam would be considered on appeal. Nothing less and absolutely nothing more. The only purpose of the appeal was to ensure that the original ruling had been fair, and to correct it if it had not. The system was not set up for, and would not tolerate, perpetual litigation, unending appeals and ever-expanding charges and defenses.

Supplicare Causa Pendente (Pleading a Case Still Pending)

Except in difficult cases, neither the judge nor the litigants were allowed to seek the opinion of, or obtain a ruling from, the Emperor while a lower court was still hearing a case. Constantine clearly did not want to hear a dispute until it had worked its way up through the appeals process, complete with instructio plena and a written sententiam. That, after all, had been the whole point of the reform: to prevent judicial backlogs in his superior court.“It is not permitted to supplicate while a case is pending (supplicare causa pendente),”^[17]because the appellate system had already safeguarded the right of appeal.

In view of the fact that there remains to litigants the legitimate choice of an appeal from decision, you must consult Our Majesty only concerning a few matters which cannot be decided by judicial sentence (sententia), in order that you may not interrupt our Imperial occupations.^[18],[19]

Thus, as early as 312 ad, not only judges, but litigants also, were prohibited from communicating with the Emperor, except in extraordinary circumstances. “To supplicate the Emperor during the pendency of a suit is not permitted.”^[20]

Potentiores (Powerful Persons)

One risk to Constantine’s reforms manifested in powerful men, far away from the Imperial Court, who could undermine the process and obstruct justice through undue influence. Such men, called potentiores, could easily intimidate the provincial governors.^[21] Constantine took extraordinary steps to prevent potentiores from corrupting his system of justice by their influence.^[22]

So near to Constantine’s heart was this matter of potentiores that he wrote to his vicar in Italy (325 ad), relieving him of all other duties, except the task of handling cases related to persona potentior.^[23] Three years later, writing to the Prefect of the City of Rome, Constantine insisted that matters related to “any very powerful and arrogant person” be brought immediately to his attention.^[24]

The Ecclesial Embrace of Appellate Reform

The Novelty of Ecclesiastical Appeals

Constantine’s appellate reform, though inspired by Moses, was a novelty in the Church. Nevertheless, it was gradually accepted, embraced, and finally canonized by the Councils. This is evident from the complete absence of synodal appeals until his reign. In the earliest synods—from Hierapolis^[25] and Anchialus^[26] to address Montanism in the second century, the Quartodeciman councils in Palestine, Rome, Pontus, Gaul and Osrhoëne^[27] (c. 196 ad), the synods in Carthage, Iconium and of Synnada (218 – 235 ad) on the baptism of heretics,^[28] the Alexandrian synod against the ordination of Origen (231 ad),^[29] the councils in Europe and Africa on the Lapsed (c. 253 ad),^[30] the synod of Arsinoë (c. 255 ad) on the Millenarian error,^[31] to the Synods of Antioch against Paul of Samosata (264 – 269 ad)^[32]—there is not a single case of appealing one council’s or synod’s ruling to another. Prior to Constantine, the ancient mode of judicial review was an exchange of opinions between bishops and congregations in person or by correspondence.

When a faction in Corinth unjustly dismissed duly elected presbyters (1^st century), no appeal was filed, but the congregation asked Clement of Rome for advice. Clement wrote back recommending that the factious party “do whatever the majority commands.”^[33] When Spanish bishops, Basilides and Martialis, were deposed by their congregations for blasphemy and idolatry (c. 256 ad), no appeal was filed, but Basilides traveled to Rome to ask bishop Stephen to intervene, and the Spanish congregations asked Cyprian of Carthage to weigh in. Cyprian advised them that Stephen was “deceived” and “ignorant,” and the decision was entirely in the hands of the congregations: “they themselves have the power either of choosing worthy priests, or of rejecting unworthy ones.”^[34] When Sabellius was deposed by Dionysius of Alexandria (c. 260 ad), no appeal was filed, but “some of the brethren…went up to Rome” to ask Dionysius of Rome to weigh in. Dionysius of Rome responded^† by writing against the parties of Sabellius and Arius, and then to Dionysius of Alexandria to let him know what had transpired.^[35] Even in the deposition of Paul of Samosata (264-66 ad) there was no conciliar appeal of the ruling.^* However, because Paul refused to surrender the church building, and the Church could not exercise the civil power of eviction, the Antiochian church petitioned Emperor Aurelian who “decided the matter most equitably” and evicted him.^[36]

Indeed, by Cyprian’s account, formal appeals appear to have been completely inconsistent with church polity. Felicissimus and Fortunatus had been excommunicated in Carthage and travelling on to Rome, were refused fellowship there by Cornelius. Cyprian wrote to Rome to affirm Cornelius’ hard stance, for there was no just cause to hear an appeal of a sentence already decided by “the authority of the bishops constituted in Africa.” Cyprian ruled out appeals altogether: “it has been decreed by all of us — and is equally fair and just — that the case of every one should be heard there where the crime has been committed.”^[37] Under that constraint, appeals to neighboring provinces and dioceses were unthinkable. Thus, for centuries the very idea of appeal had not even entered the mind of the Church. That all changed under Constantine.

Episcopalis Audientia (Episcopal Courts)

The success of Constantine’s innovation, and the reason the Church eventually embraced it, is that he conscripted bishops to serve as appellate judges in a parallel ecclesial system. Litigants and episcopal judges were expected to abide by the same appellate procedures that governed civil suits. Under that rubric, Christian litigants were allowed to transfer their cases from civil to episcopal courts even without the consent of the opposing party. As early as 318 ad, a civil judge was required by law to honor the request “if any person should desire him to transfer his case to the jurisdiction of the Christian law,” the ruling of which court “shall be held as sacred.”^[38] By 333 ad, “if such litigant should choose the court of a bishop,” both parties were to be “dispatched to the bishop,” even if “the other party to the suit should oppose it.”^[39] Three fourth century councils — Arles (314 ad), Nicæa (325 ad) and Sardica (343 ad) — occurred during this remarkable period, revealing just how transformative this innovation was, as the Church initially resisted, then embraced and finally canonized Constantine’s reforms.

Council of Arles (314 ad)

When bishop Secundus of Tigisis presided over the Synod of Cirta (305 ad), the seventy bishops with him confessed that they had betrayed the faith during the brutal Diocletianic persecution. Secundus “pardoned them,” Augustine wrote,^[40] and according to Optatus, any further judgment was left in the hands of God.^[41] In a brash act of hypocrisy, those same bishops^[42] then condemned Felix of Aptunga on the same charges, thinking thereby to depose Cæcilianus of Carthage, whom Felix had ordained. In Cæcilianus’ place they ordained Majorinus (311 ad), and then petitioned Constantine to resolve the resulting schism in which two men claimed to be the bishop of Carthage.

The appeal was first heard in Rome under Bishop Melchiades in 313 adwith 18 other bishops, and Cæcilianus was exonerated.^[43] Not satisfied with the outcome, the Donatists appealed again to Constantine who summoned 34 bishops^[44] to Arles (314 ad) where Cæcilianus was exonerated again. As a last resort the Donatists appealed directly to Constantine, asking him to hear the case himself, whereupon Cæcilianus was again exonerated by the Imperial Court.^[45] At the same time, Constantine had the matter of Felix of Aptunga prosecuted in a civil court, and “after a most thorough investigation,” he too was exonerated.^[46]

The history of the Donatist controversy is of interest to us because the dispute (305 ad) originated before Constantine took power (306 ad) but came to its final resolution (316 ad) under his new system of appeals. The period therefore provides a glimpse into the Church’s original ignorance of and resistance to the reformed judiciary, followed by an accommodation of and ultimate embrace of the reforms.

In their histories of the Donatist controversy, Augustine and Optatus provide circumstantial and documentary evidence of the Church’s gradual acceptance of the reforms. Both Augustine and Optatus are aghast that Cæcilianus’ judges at Cirta had been under the influence of a potentiore, “a very wealthy woman, whom [Cæcilianus] had offended when he was a deacon.”^[47] In his analysis, Augustine argues not only from the court documents, referring both to the civil appellate record (“Gesta proconsularia”) and the ecclesiastical appellate record (“Gesta ecclesiastica”),^[48] but also from “the letters of the Emperor Constantine, in which the evidence of all these things was established beyond all possibility of dispute.”^[49] Oblique references are made throughout to Constantine’s demands for thoroughness and accuracy — “See with what scrupulous care for the preservation or restoration of peace and unity everything was discussed” —contrasted with the negligence of the plaintiffs who had condemned Cæcilianus “without any documentary evidence or examination as to the truth.”^[50] We see passing references to the obligations of an appellate judge — “having examined the matter with the diligence, caution, and prudence which his letters on the subject indicate, he pronounced Cæcilianus perfectly innocent”^[51] — as well as the prohibition against considering undocumented evidence — “We cannot tell, since the evidence is not stated in the public Acts.”^[52]

Of particular interest to us is Augustine’s confusion about the judicial context in which the controversy unfolded. At Cirta in 305 ad, an appeals process had not been established. At the ordination of Majorinus in 311 ad, the appellate system was in place, but Episcopalis Audientia had not yet been codified under Roman Law. Unaware of that prevailing status quo, Augustine was baffled at Secundus’ failure in 305 adto “refer their case wholly to the judgment of other bishops,”^[53] and assumed that in 311 adthe Donatists had requested an episcopal trial. Augustine’s recounting of these events is severely anachronistic, but uniquely revealing for its errors.

In truth, Secundus would not have advanced a synodal appeal, for Constantine had not yet even ascended. What is more, the Donatist’s first letter to Constantine, far from petitioning for an episcopal trial, had actually requested a civil trial administered by civil judges from Gaul because its civil administrators were largely untainted by the antichristian fervor that had recently predominated in the east.^[54] They made their second appeal through the proconsul of Africa, requesting that he forward the sealed dossier of Majorinus v. Cæcilianus directly to the Imperial Court.^[55] These were requests for civil hearings by civil judges. With his own judicial ethos still in formulation, Constantine granted the request for “judges from Gaul,” but opted for an episcopal court, assembling in Rome “three Bishops from Gaul and fifteen others, who were Italians.”^[56] Misunderstanding that decision, Augustine initially assumed that the Donatist party had asked Constantine “to appoint bishops to act as judges,”^[57] something they most certainly had not.^§

Invalid though they may be, Augustine’s inferences evince a widespread ecclesiastical embrace of Episcopalis Audientia at the time of his letter in 397 ad, nearly a century removed from the Synod of Cirta. From his late-fourth century viewpoint, only negligence on the part of Secundus could account for his failure to forward the case to a higher court in 305 ad, and only a Donatist request for episcopal judges in 311 adcould account for Constantine summoning Gallic bishops to Rome. Neither assumption was valid, but by 397 ad, Episcopalis Audientia was so widely embraced that Augustine could not imagine a time when it was not.

We are thus able to look back in time to a period in Church history when an appellate system did not exist, to watch the Donatist controversy unfold as the Church becomes familiar with Constantine’s reforms, and to read the historical accounts of the subsequent decades when those reforms were enthusiastically embraced. Just as important, Optatus and Augustine describe the meticulous administrative duties of appellate judges, both civil and episcopal, the obligatory burden of the litigants to cooperate fully with them in discovery, and the earnest belief of litigants and judges that an appeal was not only allowed but expected.

Council of Nicæa (325 ad)

While the Diocletianic persecution was still raging, Meletius of Lycopolis “was convicted of many crimes” and excommunicated by Peter of Alexandria at a council in 306 ad. Nevertheless, he continued stirring up discord for many years afterward, and “[w]hile Meletius was thus employed, the Arian heresy also had arisen.”^[58] When Peter’s successor, Alexander, first began to cross swords with Arius in 324 ad, Constantine attempted “to extinguish the conflagration” and implored them to be reconciled.^[59]

Constantine’s overture failed, “for neither was Alexander nor Arius softened” by it.^[60] Because there continued to be “incessant strife and tumult among the people,” Emperor Constantine “convoked a General Council, summoning all the bishops by letter to meet him at Nicæa in Bithynia.”^[61] The Council considered both pressing issues: the episcopal dispute regarding Meletius and the Arian heresy that Alexander had raised to the Emperor’s attention.

The history of the council of Nicæa is relevant here not only because the root of discord was planted before Constantine took power, but also because the resolution occurred under the rubric of his judicial reforms. The significance of the controversy to church polity is reflected in the synodal letter and canons (325 ad), in Bishop Julius’ reflections on the 5^th Canon of Nicæa (340 ad), and in Athanasius’ written recollections of the controversy decades later (360s ad). As with Arles, Nicæa also provides a view of the Church’s gradual embrace of Constantine’s judicial reforms, none of which were in place when Meletius was deposed in 306 ad.

The bishops of Nicæa reluctantly reduced Meletius’ sentence^[62] and tacitly acknowledged in Canon 5 that the schism could have been avoided through an orderly appellate system. Having witnessed the unduly harsh penalty imposed on Meletius by Peter, the miscarriage of justice suffered by Cæcilianus under Secundus, and the extraordinary measures the Emperor took to overturn Cæcilianus’ conviction, the Nicæan divines canonized Constantine’s reforms in Canon 5. While recognizing the validity of episcopal sentences (consistent with Constantine’s constitution on episcopal courts in 318 ad), the Council also recognized the right to appeal those sentences (consistent with his constitution on appeals in 312 ad). The wording of Canon 5 reflects both judicial principles:

Concerning those, whether of the clergy or of the laity, who have been excommunicated in the several provinces, let the provision (sententia) of the canon be observed by the bishops which provides that persons cast out by some be not readmitted by others. Nevertheless, inquiry should be made whether they have been excommunicated through captiousness, or contentiousness, or any such like ungracious disposition in the bishop. And, that this matter may have due investigation, it is decreed that in every province synods shall be held twice a year, in order that when all the bishops of the province are assembled together, such questions may by them be thoroughly examined, that so those who have confessedly offended against their bishop, may be seen by all to be for just cause excommunicated, until it shall seem fit to a general meeting of the bishops to pronounce a milder sentence (sententiam) upon them.^[63]

Certainly, the excommunication of Meletius and the deposition of Cæcilianus are in view here, as both men were recent victims of the “captiousness, or contentiousness, or…ungracious disposition in the bishop” — Secundus in the case of Cæcilianus, and Peter in the case of Meletius. This is precisely why such sententiæ were guaranteed a speedy and impartial appeal under Constantine’s reforms, and why the episcopal courts had been conscripted to handle them. The purpose of canonizing appellate review in the 5^th of Nicæa, so Julius insisted, was to ensure that the sententia against the plaintiff was “not dictated by the enmity of their former judges.”^[64] While episcopal courts were authorized to issue judicial rulings, the right to appeal for “a milder sentence” was always to be left open to the litigant after the evidence has been “thoroughly examined.” We therefore see in Canon 5 early codification of Constantine’s judicial reforms, especially his desire for a thorough review of the evidence and the verdict to ensure a just sentence.

The precepts documented in the 5^th of Nicæa therefore cannot be understood as ecclesiastical canons handed down from the Apostles. Rather, they are foundational constructs of Constantinian appellate reform recognized and adopted by the Church. Julius of Rome acknowledged as much in his letter to the Eusebian party. The merits of an orderly system of appeals had “obtained in the Church” at some point prior to Nicæa, for it was “of ancient standing,” but it was only in the 5^th of Nicæa that it was “noticed and recommended” as an ecclesiastical norm.^[65] Canon 5 therefore describes not an Apostolic precept but a practical and judicious civil process imported into the administrative functions of the Church.

For this reason, Athanasius’ resentment toward Meletius is of particular interest to us. He observes (c. 360 ad) that Meletius “was convicted of many crimes,” and “did not appeal to another council…but made a schism” instead.^[66] In truth, neither would Meletius have initiated such an appeal, nor had the Church even established procedures for it. Athanasius’ anachronism is nevertheless of some value to us because it provides implicit evidence of a widespread embrace of Episcopalis Audientia by the 360s ad, six decades removed from the deposition of Meletius, and four from Nicæa. From Athanasius’ late fourth century viewpoint, Episcopalis Audientia and the appeals process were so widely embraced that he could not imagine why Meletius had not availed himself of them.

From Nicæa’s Canons, Julius’s letter and Athanasius’ histories, we are therefore able to peer back into the annals of Church history, beginning at a time when the appellate system did not exist, and watch as Constantine’s reforms are codified into canon law, and then fully and finally embraced by the Church.

Council of Sardica (343 AD)

The Council of Sardica in 343 adwas occasioned by the raucous judicial proceedings that ensued when Eusebius of Nicomedia pressured Athanasius “to admit Arius and his fellows to communion.” To Eusebius, it was a civil dispute because of Constantine’s requirement to “grant free admission to all who wish to enter into the Church.”^[67] To Athanasius, it was a doctrinal dispute, because Nicæa had only recently excommunicated Arius and his party. He refused to admit Arius, so Eusebius appealed to the Emperor who threatened to depose Athanasius from his see in Alexandria.^[68] Athanasius responded, initially in writing and finally in person (330 ad), not only defending his position on doctrinal grounds, but also defending his episcopate against new and scurrilous charges levied by Eusebius: that one of his presbyters had broken a chalice, and that Athanasius had been subsidizing an insurrectionist. Constantine heard the charges, dismissed them, rebuked the accusers and sent Athanasius back to Alexandria vindicated.^[69]

The Eusebian party continued to agitate, resurrecting the charge of the broken cup—alternately attributing it to Athanasius or to his presbyter, and now accusing him of murder as well. The Emperor commissioned the civil Censor of Antioch to investigate the charges, and the Censor subpoenaed Athanasius.^[70] Constantine was aghast at the turbulence, writing to Athanasius: “if they excite any further commotion of this kind, I will myself in person take cognizance of the matter, and that not according to the ecclesiastical, but according to the civil laws.”^[71] Undeterred, the Eusebian party “persuaded the Emperor to give orders that a Council should be held afresh at Tyre,” and Athanasius was compelled to appear to defend himself on the charges of violence and murder. The charges of murder were dismissed when the alleged victim was presented alive to the court, and the charges of violence were remanded to a commission for further investigation.^[72] Athanasius, fearing for life and limb,^[73] fled to Constantinople,^[74] “where he protested against the Count and the conspiracy against him, and requested either that a lawful Council of Bishops might be assembled, or that the Emperor would himself receive his defense concerning the charges they brought against him.” The Emperor summoned the parties to himself, whereupon the Eusebian party appeared, this time with yet another charge against Athanasius: that he had attempted to use his undue influence “to stop the exports of grain from Alexandria to Constantinople.”^[75] Athanasius was unable to persuade the court of his innocence and was exiled to Gaul.^[76]

In 337 ad,Constantine died, being succeeded by his three sons, Constantine, Constantius, and Constans. Athanasius returned to Alexandria under an imperial rescript from Cæsar Constantine exonerating him and restoring him to his episcopal see.^[77] Unabated, the Eusebian party continued to harass him, and deposed Athanasius again at a council in Antioch (338 ad), this time on charges of “murders and butcheries” that allegedly occurred upon his return from exile.^[78] They ordained Gregory of Cappadocia as bishop of Alexandria his place.^[79] In a vast campaign of defamation, the Eusebians wrote to the Cæsars and the bishops of the world accusing Athanasius of even more crimes, and turning Cæsar Constantius against him. Constantius was persuaded to write letters supporting the Eusebian party, to send Gregory to Alexandria under a military escort^[80] and to instruct the civil prefect to install Gregory as bishop of Alexandria.^[81]

In the chaos following the Eusebian onslaught, a council was convened in Rome to resolve the matter. Who actually called the council is disputed, due in no small part to Athanasius’ discrepant accounts. In one place he suggests that “the brethren at Rome” had called a council,^[82] but in another place he writes that the Eusebians asked Julius “to call a council, and to be himself the judge,”^[83] and still elsewhere has Julius suggesting “a Council ought to be held.”^[84] Julius’ own letter to the Eusebians claims that they “requested me to call a Council together,”^[85] but the Eusebians demurred, saying it was not they but Julius who had called for a council. Julius denied the accusation but acknowledged that “the proposal would have been reasonable and just” even if he had.^[86]

Athanasius sailed to Rome to attend the council, but when the Eusebians realized he would be present to defend himself, they declined to appear.^[87] The council exonerated Athanasius without the participation of the Eusebian party, and the Eusebians conducted their own separate hearings without Athanasius.^[88] Both ex parte decisions were forwarded to the imperial palace—“a report of the Council held at Rome, and of the proceedings against the Churches at Alexandria”—whereupon Constans and Constantius called yet another council in Sardica to settle the matter once and for all.^[89]

The Appellate Context of Athanasius’ Trial

We have explored the origins of Constantine’s reforms, and the Church’s gradual reception of them, so that Athanasius’ trial may be understood in its native appellate context. With that context established, the history of the trial is found to be pregnant with Constantinian judicial terms, theory and practice. The reader may now recognize the fundamentals of Constantine’s reforms in this brief survey of Eusebius v. Athanasius.

Athanasius had been condemned in a civil trial at Tyre (335 ad) where “a Count presided” instead of a bishop, “an executioner attended” and the litigants were introduced to the court by “an usher instead of the Deacons.”^[90] Athanasius was then replaced by Bishop Gregory in a civil trial at Antioch (338 ad), for they “nominated a stranger to be Bishop, and sent him to Alexandria with a military force.”^[91] Confident that they would prevail in yet another civil trial, Athanasius’ accusers welcomed an appeal,^[92] but Athanasius wisely expressed a desire to change the venue to an episcopal court, “that a lawful Council of Bishops might be assembled.”^[93] Stepping into his role as appellate judge under the auspices of episcopalis audientia, Julius initiated the process of discovery and began to solicit written evidence from both parties: “[T]hey then requested me to call a Council together, and to write to Alexandria to the Bishop Athanasius, and also to Eusebius and his fellows [in Antioch], in order that a just judgment might be given in presence of all parties.”^[94]

However, as soon as Athanasius’ accusers “heard that the trial was to be an Ecclesiastical one, at which no Count would be present, nor soldiers stationed before the doors,”^[95] they lost the “advantage” of a civil trial and began to plot another course.^[96] Missing a critical deadline to submit relevant testimony, they complained that “the interval” between the announcement of the appeal and the court date “was too short.”^[97] Julius responded that if they remained uncooperative and continued to dither, they would be “branded” in infamy (infamati), just as the Arians had before them.^[98] While Julius tried valiantly to secure the cooperation of the plaintiffs, they began to circumvent him and seek relief in “greater courts” and even “before the three Augusti.”^[99] Not only had they attempted to work around Julius, but they also continued violating appellate procedures by introducing “fresh reports against us,”^[100] advancing with new charges against Athanasius, “not with the same offenses which they had published against him at Tyre.”^[101]

Here we see the wheels of Constantine’s appellate process in motion, as litigants and judge attempt to navigate tedious and dangerous judicial waters, either to comply with the rigors of the appeals process (as with Julius and Athanasius), or to work within or without the system to their advantage (as with the Eusebian party). We see a process of apellatio unfolding as civil decisions in Tyre and Antioch are challenged at a court in Rome. We see Athanasius expressing a desire to change from civil courts to episcopalis audientia — as was his right — and we see his accusers surprised to learn of that change of venue; indeed, under Constantine’s reforms, Athanasius was under no obligation to inform them in advance. We see strict adherence to instructio plena as Julius struggles to compile evidential statements so that his dossier will meet the Emperor’s rigorous standard of objectivity. We see the litigants struggling to keep up with the Emperor’s strict timeline, the plaintiffs complaining that Athanasius was persona potentior, and the defendant objecting that his accuser was introducing on appeal new charges “which he neglected to assert in the trial” at Tyre. We see the defendants complaining that the plaintiffs had engaged in supplicare causa pendente, not only appealing the case to higher courts, but to the Imperial Court itself, even while Julius’ lower court was still deliberating in Rome.

These historical details are nuanced and subtle and are therefore typically overlooked in historical analyses of Athanasius’ tribulations. But the trial of Athanasius took place in a very tightly regulated and thoroughly documented imperial judicial setting at a time when the Church was just learning how to litigate and appeal effectively. These details, though tedious, cast much-needed light on the litigation itself and its ultimate outcome. Most importantly for our purposes, they display in explicit relief the “custom” Julius famously accused the Eusebians of violating.

“The Custom Has Been for Word to be Written First to Us”

What is typically lost in the historical analysis of Julius’ reference to “the custom” for “word to be written first to us” is the fact that the Eusebians had already written to him multiple times. It is a remarkable fact that even as Julius complained of their violation of the “custom” of writing “first to us,” both he and Athanasius freely acknowledged that the Eusebians hadon multiple occasions already cooperated with his “interrogation” in writing. The Eusebians had written to him, not once, not twice, but thrice, and Julius’ rebuke was in response totheirthird written communication. Julius acknowledges this repeatedly: “When the persons whom you, Eusebius and his fellows, dispatched with your letters, I mean Macarius the Presbyter, and Martyrius and Hesychius the Deacons, arrived here…they then requested me to call a Council together”^[102]; and  “I have read your letter which was brought to me by my Presbyters Elpidius and Philoxenus.”^[103] Athanasius also attests to multiple “letters from Eusebius” to Rome,^[104] and that the Eusebian party had delivered their request for a new council “in writing to Julius.”^[105] Indeed, the one thing that every party to the proceedings acknowledged from the start was that “Eusebius and his fellows wrote long ago to Julius.”^[106]

Whence, therefore, Julius’ indignation? Why demand at this point that the Eusebians write “first to us,” when it is a matter of record that they had severally written to him “first,” and in fact had initiated the very appeal in writing? The answer — profound for its judicial simplicity — lies in the sudden shift in the plaintiffs’ disposition toward Julius when they lost the “advantage” of a civil appeal, an advantage they had enjoyed in Tyre and Antioch. Knowing they would now have to prosecute the imagined offense in an episcopal court, there was nothing left to be gained by proceeding in an orderly, respectful manner. In their final written response to Julius, not only had they replied “in an unbecoming and contentious temper,”^[107] but far worse, they had not even answered Julius’ additional questions about their initial complaint: “And why was nothing said to us concerning the Church of the Alexandrians in particular?”^[108] Julius’ role as appellate judge was to compile a balanced dossier, including the written responses of both parties to his questions. Yet in response to his written request for additional written information, they had provided nothing in writing — “nihil nobis scriptum”^[109] — about their charges against the Alexandrian Church, the very nexus of the dispute. The English translation — “why was nothing said to us?” — utterly misses the very fulcrum of Julius’ frustration: “why was nothing written to us?”

Not only had they refused to answer Julius’ lawful questions in writing, but they had also begun to prosecute the matter in writing to other courts, and — most audaciously— directly to the Emperors:

[T]hey cease not to disturb the ear of royalty with fresh reports against us; they cease not to write letters of deadly import … They have dared in their letters to the Emperors to [charge] him with a number of murders and butcheries, and that not before a Governor, or any other superior officer, but before the three Augusti.^[110]

The Eusebians were quite willing to continue submitting their evidentiary communications in writing. They just preferred to submit them directly to the Emperor instead of to Julius: “[T]hey see that they are not likely to get the better in an Ecclesiastical trial, [and] betake themselves to Constantius alone.”^[111]

Thus did the Eusebians violate the foundational principles of Constantine’s reforms. They had resisted the change of venue to an episcopal court (episcopalis audientia); they had stopped cooperating in Julius’ statutory process of discovery (instructio plena); they had supplicated a matter before the Emperor while the outcome in a lower court was still pending (supplicare causa pendente). Julius was doing his level best to compile the dossier, but the Eusebians had taken matters into their own hands.

Their disregard for that lawful and orderly sequence is plainly evident when Julius’ reference to “custom” is read in its native context. While the English translation tends to suppress his poignant judicial indignation, the Latin does not. Everything was supposed to be compiled in writing by the appellate judge, and the Eusebians had begun to prosecute the matter independently:

And why was nothing said to us (nihil nobis scriptum) concerning the Church of the Alexandrians in particular? Are you ignorant that the custom has been for word to be written first to us (primum nobis scribatur), and then for a just decision to be passed from this place? If then any such suspicion rested upon the Bishop there, notice thereof ought to have been sent to the Church of this place (ad hanc Ecclesiam illius rescribendum); whereas, after neglecting to inform us (nobis non indicata), and proceeding on their own authority as they pleased, now they desire to obtain our concurrence in their decisions, though we never condemned him.^[112]

The “custom” to which Julius refers is therefore quite obvious: the practice of submitting written evidence to the court of first appeal before taking the matter to a higher court. Upon this reading it becomes abundantly clear that the Roman court was not Supreme, and Julius was not the church’s Chief Justice. Rather, we see in Julius a frustrated mid-level episcopal judge, caught up in the tedium and rigor of a reformed judiciary, whose own sententia, far from being the final say, would soon be subject to judicial review in a higher court — the Council of Sardica.

Correctly Understanding the Roman Prerogative

The Roman Catholic apologist claims that Julius’ exoneration of Athanasius is ancient evidence of Roman episcopal and judicial primacy. Fr. Ray Ryland, former Episcopal priest turned Roman Catholic apologist, claimed of Athanasius: “When he appealed to the Pope, Pope Julius I condemned both councils [Tyre and Antioch], and reinstalled Athanasius in his see.”^[113] Others observe: “Athanasius was formally exonerated when the synod and letter of Julius overturned the sham proceedings at Tyre.”^[114] However, a sober and contextual reading of history corrects that ambitious retelling.

As we observed above, after the council in Rome, Constans and Constantius convened a council in Sardica to settle the matter,^[115] the honorable Bishop Hosius of Spain presiding.^[116] Hosius acknowledged in his Synodal letter that Julius had not settled anything, for “this holy Council…in the city of Sardica” was convened “that all dissension may be done away.”^[117] By this statement Hosius implicitly relegated Julius to his lower court of appeal, and explicitly testified that his decision had not been final. We find in the Synodal Letter of Sardicalanguage that speaks of a judicial review of Julius’ dossier:  “…we found also, on reading the Reports…”^[118]; “…the subsequent parts of the book were read, and the parts preceding the queries themselves ….”^[119] Upon review, that august Council decided that Gregory must be “deposed by a judgment of the whole sacred Council,” and that Athanasius must be restored to his see.^[120] Those are not the words of bishops who believed Julius had already deposed Gregory and had already “reinstalled” Athanasius! Indeed, had Julius “formally” exonerated Athanasius and “reinstalled” him, there would have been no need for Sardica, and no need for Athanasius to be subject to yet another trial there, but Emperor Constantine’s appellate process practically demanded it.

Thus, the ancient canons of Sardica endure as a testament of Julius’ limited jurisdiction and subordinate role in the trial of Athanasius. As we observed in “Nicæa and the Roman Precedent,”^[121] there were two functioning metropolitans in Italy at the time of Nicæa — the Metropolitan of Milan, and the Bishop of Rome in the Urbis Romæ — just as there were two in the Diocese of Oriens — one in Antioch and one in Alexandria. The 6^th canon of Nicæa had settled metropolitan jurisdiction in Oriens by assigning Egypt, Libya and the Pentapolis to Alexandria, and the rest of the diocese to Antioch.

Nicæa had acknowledged, but had not formalized, that similar arrangement in Italy. Additional administrative guidance was therefore necessary at Sardica. According to Canon 9, if an appellant filed for relief outside of Rome, but within the greater Diocese of Italy, the appeal would be routed first through Milan, the Metropolis of Italy, and thence to the Imperial Court; but if he filed within the city and suburbs of the Urbis Romæ, as Athanasius had, the Bishop of Rome would compile the dossier and deliver it to the Emperor:

[I]f in any province whatever, … he that is in the largest city, that is, the metropolis, should himself send his deacon and the petitions …But those who come to Rome ought, as I said before, to deliver to our beloved brother and fellow-bishop, Julius, the petitions which they have to give, in order that he may first examine them, lest some of them should be improper, and so, giving them his own advocacy and care, shall send them to the Court.^[122]

The generalrule of Sardica, therefore, was that “in any province whatever”appeals to the Imperial Court must first be routed through “the metropolis.” But the particular rule in Italy was that appeals were to be handled by the Bishop in Milan, unless the appeal was initiated within the Urbis Romæ. Julius’ judicial reach within Italy, therefore, was formally limited to Rome by the 9^th of Sardica, a status quothat had existed in practice for decades, as attested by the 6^th of Nicæa.

But that is hardly the end of the story. The incorrigible Eusebian party abstained even from Sardica,^[123] and the Emperors’ patience was exhausted. The records of Sardica were forwarded to the Imperial Court, where Constantius reviewed them himself and rendered a final decision in writing, restoring Athanasius to his seat in Alexandria.^[124] Julius had rendered his sententia three years earlier, but neither Julius (at Rome) nor Hosius (at Sardica) could resolve a matter in which the plaintiffs refused to participate. Thus, the Emperors insisted correctly that it was neither Julius’ nor Hosius’ “sentence,” but rather “our sentence” by which Athanasius was finally restored “to his country and to the Church.”^[125]

By this, Julius’ diminutive stature in the judicial hierarchy is revealed in the light of day. His own ruling in Rome was subject to review at Sardica under Hosius, for Julius well understood the 5^th of Nicæa to require that “the decisions of one council should be examined in another.”^[126] And even Hosius’ decision was subject to further review in the Imperial Court. Only then was Athanasius finally restored to his see. Rather than early evidence of Roman primacy, the “custom” to which Julius had referred was that the litigants were expected to cooperate in discovery by writing “first to us” — that is, to the lower court — and waiting for a formal decision before supplicating higher courts for relief. That is not a claim of primacy. Quite the contrary. It is the frustrated indignation of a mid-level appellate judge trying to comply with the new judicial regulations, and wishing his wily plaintiffs would do the same.

“What we have received from…Peter”

We close by dispelling the Roman apologist’s last, fleeting hope that Julius’ ostensible “custom” of Roman judicial primacy was a tradition that had been handed down from Peter himself.^[127] Indeed, Julius attested, as he admonished the Eusebians, that he was merely passing on to them “what we have received from the blessed Apostle Peter.”^[128] But had Peter really been the source of Julius’ “custom” of writing “first to us”? By no means!

As he closed his letter to the Eusebians, having excoriated them for their violation of the “custom,” he also criticized their attempt to prosecute the matter independently, and by the most violent and abusive means. Neither Paul, nor the fathers, nor Peter had authorized such impertinence:

Not so have the constitutions of Paul, not so have the traditions of the Fathers directed; this is another form of procedure, a novel practice. I beseech you, readily bear with me: what I write is for the common good. For what we have received from the blessed Apostle Peter, that I signify to you.^[129]

The Church’s plodding fourth century embrace of episcopal courts (viz. Arles, Nicæa, and Sardica), and the absence of synodal appeal prior to Constantine, indicate that Julius was by no means claiming to have received such a custom from Peter. Even Julius acknowledged that the very idea had only recently been “noticed and recommended” at Nicæa. Certainly this “custom” had not originated from the Apostles. What then had Julius received from Peter?

A cursory reading of Julius’ epistle reveals that he had invoked three authorities in succession — Paul, the Fathers and Peter. Julius had invoked “the constitutions of Paul” when he advised the Eusebians that they should not have “let the sun go down upon their vexation” (Ephesians 4:26).^[130] He had invoked “the traditions of the Fathers,” by referring to Nicæa, for “your refusal is not becoming” when the obligation to cooperate “is of ancient standing, and has been noticed and recommended by the great Council.”^[131] What Julius “received from the blessed Apostle Peter” and now “signify to you” is that to which he refers in his next sentence: the Eusebians must disavow their practice of lording their authority over the sheep: “[T]he people have to grieve for those [bishops] who are forcibly taken from them, while…they are obliged to give over seeking the [bishop] whom they desire, and to receive those they do not.”^[132] Such behavior Peter would have detested, for shepherds were not to rule “as being lords over God’s heritage, but being ensamples to the flock” (1 Peter 5:3).

The Eusebians’ procedural and ecclesiastical abuse had violated the Pauline proscription against unresolved anger and had disregarded Petrine exhortations toward godly shepherding. But the prerogative of the Roman church to compile a dossier and render a verdict before the litigants advanced their case on appeal was a custom that came down to Julius neither from Paul, nor from Peter, but from the Imperial Palace. Nicæa had “noticed and recommended” that custom, obligating the Eusebians to answer Julius’ questions in writing, and then await his decision before taking the matter to a higher court. In truth, Julius’ “custom” attests simultaneously to the lower stature of his own court and to the primacy of Constantine’s reformed judiciary. Any other bishop in any other metropolis would have asked the Eusebians exactly the same questions, in the same terms, and in the same tone, for the same reason. The Eusebians were required to await the decision of a lower court of appeals before advancing to the next higher court, just like everyone else in the empire. Such a “custom” contains not a hint of the ancient Petrine, Roman, Papal ecclesiastical and judicial primacy of the Catholic apologist’s unrequited yearning.