Vladimir Moss – Orthodox Christianity Author

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MIGHT AND RIGHT IN MIDDLE BYZANTIUM

Written by Vladimir Moss

MIGHT AND RIGHT IN MIDDLE BYZANTIUM

 

      It was a fundamental principle both of the Emperor Justinian’s legislation in the sixth century and of St. Photius’ in the ninth that Church canons should always take precedence over imperial laws. As this principle became more generally accepted, more areas of what had been considered secular life came under the influence of the process of “enchurchment”. This process was expressed in several new requirements: that the emperors themselves should be anointed in a special Church rite[1]; that marriages should take place in church, and in accordance with the church canons; and that lands and monies donated by individuals to the Church should never be secularized, but should ever remain under the control of the Church. Thus one of the novellas of Emperor Alexis Comnenus said that it was wrong to forbid a slave a Church marriage in a Christian State, for in the Church a slave is equal to a lord. Again, in the thirteenth century there were cases of trials of murderers, not according to the civil codex, but in accordance with the Church canons: the criminal besought forgiveness on his knees and was given a fifteen-year penance of standing among the penitents at the Divine Liturgy. However, as was to be expected, there was resistance to this process, if not as an ideal, at any rate in practice; and this was particularly so in the case of marriage law – more specifically, of marriage law as applied to emperors…

     The first major conflict came towards the end of the eighth century, when St. Tarasius, Patriarch of Constantinople, refused to give his blessing to the marriage of the son of the Empress Irene, Constantine VI, who had cast off his lawful wife and entered into an adulterous relationship with his mistress. The Emperors then turned to the priest Joseph, who performed the marriage, upon which. St. Tarasius at first did nothing, “through adaptation to circumstances”, but then excommunicated Joseph. Fearful, however, that too great a strictness in this affair would lead the Emperors to incline towards iconoclasm, the patriarch accepted Joseph into communion before the end of his penance. He was also accepted by the next Patriarch, St. Nicephorus, who was under pressure from the next Emperor, Nicephorus. In protest against these applications of “economy”, St. Theodore the Studite broke communion with both patriarchs, and returned into communion with St. Nicephorus only when he had again excommunicated Joseph.St. Theodore allowed no compromise in relation to the Holy Canons. He who was not guided by them was not fully Orthodox. St. Paul anathematised anyone who transgressed the law of Christ, even if he were an angel from heaven. A fortiori the emperors were not exempt from the Canons. There was no special “Gospel of the kings”: only God is not subject to the law.[2]

     St. Photius faithfully followed St. Theodore’s teaching: when Basil I came to power after murdering his predecessor, he accepted him as emperor, but refused to give him communion. But he was deposed for this, and was deposed again by Basil’s son, Leo the Wise, who shifted the balance of Church-State relations back towards caesaropapism, saying: “from now on the emperor’s care extends to everything, and his foresight (pronoia, a word which can equally well mean the ‘providence’ of God) controls and governs everything.”[3] He claimed, according to Dorothy Wood, “to be head of Church and State in the sense that, if the Church as led by the Patriarch was irreconcilably opposed to the Emperor, the Emperor could resolve the conflict”.[4] And so when St. Photius’ successor (and nephew), Patriarch Nicholas the Mystic, opposed his fourth marriage to Zoe, the Emperor simply removed him from office, forced a priest to perform the marriage and then himself placed the crown on his “wife’s” head. 

     However, the patriarch did not give in. Commenting that the Emperor was to Zoe “both bridegroom and bishop”[5], he defrocked the priest that had “married” him and stopped the Emperor from entering Hagia Sophia. Then, when the papal legates recognized the marriage, St. Nicholas resigned from his see, declaring that he had received the patriarchate not from the king but from God, and that he was leaving because the Emperor was making the government of the Church impossible.

     The Emperor retaliated by exiling Nicholas and putting Euthymius on the patriarchal throne, who permitted the fourth marriage, saying: “It is right, your Majesty, to obey your orders and receive your decisions as emanating from the will and providence of God”![6] However, after the death of Leo in 912, Euthymius was imprisoned and St. Nicholas was restored to his see. Finally, in the Tome of Union (920), fourth marriages were condemned as “unquestionably illicit and void”, and third marriages permitted only by special dispensation.

     St. Nicholas wrote to the Pope: “What was I to do in such circumstances? Shut up and go to sleep? Or think and act as befits a friend who cares at one and the same time both for the honour of the emperor and for the ecclesiastical decrees? And so we began the struggle with God’s help; we tried to convince the rulers not to be attracted by that which is proper only for those who do not know how to control themselves, but to endure what had happened with magnanimity, with good hope on Christ our God; while we touched, not only his knee, but also his leg, begging and beseeching him as king in the most reverential way not to permit his authority to do everything, but to remember that there sits One Whose authority is mightier than his - He Who shed His Most Pure Blood for the Church.” And to the Emperor he wrote: “My child and emperor, it befitted you as a worshipper of God and one who has been glorified by God more than others with wisdom and other virtue, to be satisfied with three marriages: perhaps even a third marriage was unworthy of your royal majesty… but the sacred canons do not completely reject a third marriage, but are condescending, although they dislike it. However, what justification can there be for a fourth marriage? The king, they say, is the unwritten law, but not in order to act in a lawless manner and do anything that comes into his head, but in order that by his unwritten deeds he may be that which is the written law; for if the king is the enemy and foe of the laws, who will fear them?”[7] The saint went on to say that “an emperor who gave orders to slander, to murder through treachery, to celebrate unlawful marriages, and to seize other people’s property, was not an emperor, but a brigand, a slanderer, and adulterer and a thief”.[8]

    The attempts of emperors to impose their will on the Church continued. Thus “Emperor Romanus, who reigned over Byzantium at the beginning of the tenth century had a son, Theophylact, who was sixteen years old when Patriarch Stephen died. The emperor wanted his son to be elevated as patriarch for he had promised him [his son] this spiritual calling from his youth. Because his son was a minor, the emperor was ashamed to do this. The patriarchal throne was assumed by Tryphun a simple but chaste and pious old man. Tryphun remained on the throne for three years. When the son of the emperor reached his twentieth year, the emperor thought to remove Tryphun at any price and to install his son as patriarch. The saint of God, Tryphun, did not want to relinquish his throne voluntarily, for no other reason, because he considered it to be a great scandal that such a young man be elevated to such a responsible and burdensome position as that of being patriarch. Through the intrigue of a nefarious bishop, the signature of the innocent Tryphun was extracted on a blank sheet of paper. Later on, in the imperial court, above that signature, the alleged resignation of the patriarch was written which the emperor decreed. As a result of this, there arose a great confusion in the Church, for the laity and the clergy stood by Tryphun, the godly man. The emperor then forcibly removed the aged patriarch and sent him to a monastery and, his son, Theophylact, was elevated as patriarch. St. Tryphun lived as an ascetic in this monastery for two years and five months and presented himself before the Lord in the year 933 A.D.”[9]

*

     Another area in which imperial might came up against ecclesiastical right was that of imperial legitimacy and succession. In the early Byzantine period very strict criteria of legitimacy were applied by such bold hierarchs as St. Ambrose of Milan. However, these strict criteria were by no means consistently adhered to in later centuries[10]; and even late into the Christian period, Roman emperors were so often overthrown by force that J.B. Bury, following Mommsen, called the government of Byzantium “an autocracy tempered by the legal right of revolution”.[11]

     Dagron has pointed out that one could become emperor in Byzantium in various ways: by dynastic succession from father to son, by being “purple-born (porjurogennhtoV)”[12], by marrying a former empress, by being made co-emperor by a living emperor, as well as by usurpation, that is, the overthrow of a living emperor by force.[13] Although a usurper would naturally be considered the very opposite of a legitimate ruler, he could nevertheless be seen as expressing God’s transfer of power from an unworthy man to one more worthy, as when He “repented” of His choice of Saul and chose David instead.[14] Or the legitimate emperor could simply hand over power to the usurper in order to avoid bloodshed, as when Emperor Michael Rangabe sent his crown, purple robe and shoes to Leo V, saying: “I abdicate in your favour. Enter Constantinople without fear and reign gloriously.”[15] 

     A comparison can be made between the Byzantine idea of legitimacy and the Chinese “mandate of heaven”. In the Chinese system, as J.M. Roberts writes: “Confucian principles taught that, although rebellion was wrong if a true king reigned, a government which provoked rebellion and could not control it ought to be replaced, for it was ipso facto illegitimate.”[16]Similarly, in the Byzantine system, as Lemerle writes, “usurpation… has… almost a political function. It is not so much an illegal act as the first act in a process of legitimation… There is a parallelism, rather than an opposition, between the basileus and the usurper. Hence the existence of two different notions of legitimacy, the one ‘dynastic’ and the other which we might call (in the Roman sense) ‘republican’, which are not really in conflict but reinforce each other: the second, when the usurper fails, reinforces thereby the first, and when he succeeds, recreates it, whether the usurper attaches himself to the dynasty or founds a dynasty himself.”[17] 

     And yet: what if a usurper came to power by the murder of his predecessor? Even here the Church usually crowned him. Thus in 865 St. Irene Chrysovalantou revealed that the Emperor Michael III was going to be murdered. However, she said, “do not by any means oppose the new Emperor [Basil I], who shall come to the throne, though murder be at the root of it. The holy God has preferred and chosen him, so the enemy himself will not benefit.”[18] St. Photius also accepted the new emperor – but refused him communion in church.

     Paradoxically, writes Judith Herrin, “despite his obscure origins, Basil I’s family maintained control over Byzantium for nearly two centuries, from 867 to 1056. In the tenth century, Constantine VII commissioned a biography of Basil (his grandfather), which invented a noble Armenian origin for the family and traced the portents which led to Basil ‘saving’ the empire from a drunken and dissolute ruler, Michael III, rather than gaining power in treacherous circumstances. By blackening the character of Basil’s patron and colleague, Constantine made sure that his grandfather was given a highly original and invented role, as more legitimate and worthy of the imperial title than Michael. By such means the Macedonian dynasty, as it became known, contributed to a deeper sense of order, taxis, and strengthened the imperial office through a proper and controlled line of succession from father to son.”[19]

     Sometimes the usurper was crowned, provided certain conditions were fulfilled. Thus when Nicephorus Phocas was murdered on December 11, 969 by his successor, John Tzimiskes[20], Patriarch Polyeuctus “declared that he would not allow the Emperor to enter the church as long as he had not expelled the Augusta from the palace and had not named the murderer of the Emperor, whoever he might be. Moreover, he demanded the return to the Synod of a document published by Nicephorus in violation of justice. The point was that Nicephorus, either intending to remove certain violations of the sacred rites that had been allowed, in his opinion, by certain hierarchs, or wishing to submit to himself even that in the religious sphere which it was not fitting for him to rule over, had forced the hierarchs to compose a decree according to which nothing in Church affairs was to be undertaken without his will. Polyeuctus suggested that the Emperor carry out all (this); in the contrary case he would not allow him to enter the holy church. (John) accepted the conditions; he removed the Augusta from the palace and exiled her to an island called Protos, returned Nicephorus’ decree to the Synod and pointed to Leo Valans, saying that he and nobody else had killed the Emperor with his own hand. Only then did Polyeuctus allow him into the holy church and crown him, after which he returned to the Royal palace and was hailed by the army and people”.[21]

     This extraordinary episode tells us much about the real relationship between Church and State in Byzantium. On the one hand, there is no question that although Tzimiskes won the throne through brute force and murder, there was no real attempt to remove him or refusal to recognize him. This indicates that the pagan principle of Old Rome: “might is right”, still prevailed in tenth-century Byzantium. Or rather: if might prevails, then this is by the Providence of God, and should therefore be accepted. Such a concept, as we have seen, is similar to the Chinese idea of “the mandate of heaven”.

     On the other hand, Tzimiskes’ de facto victory was not felt to be enough in a Christian society: he needed the Church’s forgiveness and sacramental blessing. And this the Church felt powerful enough to withhold until several conditions had been met: (1) the removal of Empress Theophano, the widow both of Nicephorus and the previous emperor Romanus and the mother of Romanus’ purple-born sons Basil and Constantine, whom Tzimiskes had wanted to marry in order to strengthen his position; (2) the annulment of a caesaropapist decree of the previous emperor; and (3) the new emperor had made at least a formal attempt to find the murderer (everyone must have known that the emperor himself was the murderer, but if he did not accuse himself there was no higher judicial power that could convict him). By obtaining the fulfillment of these three conditions the Church, it could be said, made the best out of a bad job, extracting some good from an essentially evil deed.

     While the Byzantines accepted Tzimiskes as basileus, they condemned the deed by which he attained the throne. The manoeuvre, writes Morris, was “nicely put by Leo the Deacon, who clearly understood these matters. Tzimiskes, he wrote, ‘took up the reins of the Empire’ at the fourth hour of the day of 11 December 963. In other words he assumed the governance of the empire. But it was not until after his coronation that his position as autokrator was finally legitimised by receiving the blessing of the church.”[22]

     But if this resolved the question of Tzimiskes’ legitimacy, it did not wipe out his sin. The best the Byzantines could come up with here was the theory – propounded by the thirteenth-century canonist Balsamon - that the emperor’s anointing washed out all his previous sins! [23] As Morris writes: “In the Apocalypse of Anastasia, dateable to the beginning of the twelfth century at the latest, we have an angel indicating to the narrator an empty throne in Hell and explaining that it belonged to John Tzimiskes ‘who was not worthy of it, because he murdered Nikephoros Phokas’. Then the wounded Nikephoros is seen reproaching John, saying, “John, Tzimiskes, Lord John, why did you inflict an unjust death on me…” And John replied nothing but “Woe! What have I done?”’ The invention of the tradition that Tzimiskes’ anointing had washed away the sin of the murder is, of course, another clear indication that he was believed to have been directly implicated.”[24]

     “The aim,” according to Dagron, “is to convert brute force (toqhriwdeV, qhrionalogon, as Agapetus and Basil write) into a legitimate power, and the historical sources often allude to this conversion. If Theophanes characterizes Leo V, in 814, as ‘very legitimate emperor of the Romans’, this is to signify that this general, who had been called to the Empire by war and popular favour, was able to carry out the mutation which from now on made him a legitimate sovereign by not being too precipitate in the stages of transition, by letting the patriarch act, by ceasing to be an army commander, by conforming himself, not to constitutional rules which did not exist, nor even to more or less uncertain procedures, but to a process that allowed him to leave one role, that of a popularly elected general, for another, that of an emperor elected by God. If, on the contrary, Michael Attaliates and his contemporaries were doubtful that Isaac I Comnenus had succeeded, in 1057, in his passage from ‘tyranny’ to ‘legitimate power’, in spite of his probity and his courage, this was because he had not been able to divest himself of his martial fury, which had given him power but not sacredness… So it is not power that is legitimate, it is he who appropriates it who can become legitimate by choosing to respect the law…”[25]

 

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