241

I yril Hovorun, Kiev (Ukraine)

Apostolicity and Right of Appeal

When prominent sees of the Ancient Church were endowed with or pretended
for special privileges, their apologists tried to substantiate those privileges by
ipostolicity of the sees. As a special privilege was considered the right to en-
tertain appeals. There are two sees that pretended to have the right of supra-
jurisdictional appeals, Rome and Constantinople. In my paper, I shall inves-
tigate how their pretensions were connected with apostolicity. Among other
reasons why I have opted for this topic is its importance for the Catholic-Or-
I hodox dialogue, which currently discusses the issue of primacy in the Church.
Entertainment of supra-jurisdictional appeals is justly counted among features
Oi primacy.
Before we proceed to our question, we need to say some words about the
right of appeal per se as it is considered in both Roman and Eastern Chris-
lian traditions. As for the Roman see, before it had this right institutionalised,
there were several precedents, when the bishop of Rome was approached to
Midge situations beyond his direct jurisdiction. In some cases, however, his
interventions met opposition, both from the western and from the eastern
bishops. For instance, when St Athanasius had appealed to Rome against the
decisions of the council of Tyre (335), and Pope Julius restored Athanasius
and Marcellus of Ancyra to their sees, the eastern bishops who supported the
Arian cause, rejected the intervention of the Pope. In the West, when the bish-
ops Basilides of Leon and Martial of Merida in Spain had in the persecution
accepted certificates of idolatry and were in consequence deposed, they ap-
pealed to Rome. As a result, Pope Stephen of Rome reinstalled them to their
sees, which caused Cyprian of Carthage to object this move of the Pope 1 . In
ihe case of Fortunatus who had received non-canonical consecration as bishop
of Carthage, Cyprian again denied his right to appeal to Rome 2 .
Despite these precedents, the local council of Sardica (343), by its canons
3j 4, and 5 confirmed that Roman Popes can entertain appeals. Even though
these canons were often referred to in the disputations with the see of Con-
stantinople, they were not considered by the Roman Church as a ground for

Cypr., Ep. 67:6: A. Roberts, J. Donaldson, A. C. Coxe, ANF 5 (Buffalo, NY 1886).

Cypr., Ep. 54:10.
242 Cyril Hovm I
its right to appeal. As Pope Nicholas I characteristically stated concern m lh<
conciliar declarations which regard the privileges of the Roman see: " Ihftf
privileges bestowed by Christ on this Holy Church have not been granted h f l
by synods, but merely proclaimed and honoured by them" 3 .
The canons of Sardica did not constitute the basis for recognition of I he Kit
man right to entertain appeals for the eastern Church either. In fact, tin
erns with great difficulties accepted the council of Sardica, and after having .u
cepted it, did not regard its canons as justification for the Roman pretension
to take appeals. They considered them either as a canonical basis for the
ern Churches to appeal to Rome, on the ground that Sardica belonged to ili>
Roman jurisdiction and bishop Hosios of Cordoba who initiated the canon
was a western bishop himself4. Or they saw them as a temporal right, vvhu It
was bestowed personally upon Pope Julius under the harsh circumstance', nl
suppressions from the Arians 5 .
Now it comes to apostolicity. The easterns did not recognise the apostol idtj
of the Roman right to take appeals, just because they never recognised sin h I
right. The westerns, however, connected these two issues. Moreover, they m
tined Roman right to entertain appeals by referring to the Apostle Peter. Con
nection between the two issues was established as early as in the mid-fourth
century, by the Fathers of the council in Sardica. The 3 r d canon of the conn
cil, which bestows upon the Pope Julius the privilege to take appeals, ma! <
reference to the Apostle Peter. Here is the full text of the canon:
"And it is necessary to add this too, that no bishop may cross from his own dio< > •
or province into another province in which there happen to be bishops, unless I it-
be called or invited by some of the brethren therein, lest we seem to be shutting
the gates of love. And this likewise must be provided, so that, if anyone among llie
bishops in a province should be at variance with a brother and fellow bishop, hf
shall not call upon any other one of the bishops from another province to suppoj i
his cause. If, therefore, any of the bishops in any dispute seem to be condemned,
and considers himself not to be at fault, but that it would be a good thing to have I In-
case reopened, if it seem right to you, let us honour the memory to the love of St I'fin
the Apostle, and let the case be appealed from the judges to Julius the bishop of Rome,
so that through the bishops who are neighbours to the province in question a m-w
court maybe held and he be granted new examiners. But if it cannot be established
NicoL I, Ep. 85 (ad Michaelem Imp.): PL 119, 948; an early English translation of the pin,P..
occurs in: Ch. G. Herbermann (ed.), The Catholic Encyclopedia, vol. 12 (London 1913) 268.
4
See Nikodemus the Hagiohte, nnS&Aiov (Athens 1886) 365.
5
See V. Pteidds,'EKK\noiaoTLKfi'IcrTOpia A' (Athens 1995) 495, 814-820; D Geauoc. rffc
nevTcipxiac, TO>V TraTpiap^wv I (Athens 1969) 115-129.
olicity and Right of Appeal 243
111.11 such is the case as to merit a new trial, let what has once been tried and decided
bt re-examined, but, on the contrary, let whatever really is so be accepted as true" .
Not long after the council of Sardica we find similar references to the authority
I nl Apostles in the writings of St Augustine, who was in favour of the Pontiffs
ni'Jii to accept appeals. Thus, when speaking of the case of Caecilian, who
dm ing the Donatist controversy in Carthage was condemned by seventy Nu-
Itudian bishops and then appealed to Rome, Augustine fully justifies the move
I nl ( aecilian. In Augustine's opinion, Caecilian had the right to reserve his case
wholly to the judgment of other bishops, especially of apostolical churches"'.
It is remarkable that Augustine does not speak here only of the Roman see, but
i it the "Apostolic Churches". It might be implying that for Augustine, any local
( lunch with apostolic roots has a potentiality to accept appeals. Whether this
• or not, it definitely implies that this right, for him, is closely connected
With apostolicity.
Now it is time to pass to Constantinople. When speaking about suggested
i M'.lit of Constantinople to receive appeals, canonists normally make reference
lo the canons 9 and 17 of Chalcedon. Most important among them is canon
| , which reads:
"If any clergyman has a dispute with another, let him not leave his own bishop and
i csort to secular courts, but let him first submit his case to his own bishop, or let it
be tried by referees chosen by both parties and approved by the bishop. Let anyone
who acts contrary to hereto be liable to canonical penalties. If, on the other hand,
a clergyman has a dispute with his own bishop, or with some other bishop, let it be
tried by the Synod of the province. But if any bishop or clergyman has a dispute
with the Metropolitan of the same province, let him apply either to the Exarch of
the diocese or to the throne of the imperial Constantinople, and let it be tried before
I here is a great dispute between the Orthodox whether this canon bestows
On the see of Constantinople the right to entertain appeals from other juris-
dictions. Or, better to say, the dispute is about whether the Church of Con-
Itantinople has such a right at all. We do not have time to go into details of
" 'translation quoted from: The Rudder (Pedalion): Of the Metaphorical Ship of the One Holy
(latholic and Apostolic Church of the Orthodox Christians, comp. Agapius a Hieromonk and
Nicodemus a Monk, trans. D. Cummings (Athens 19085, Chicago 1957; repr. New York, N.Y.
1983)585.
Aug., Ep. 43:7, transl. by J. G. Cunningham, NPNF 1,1,278.
" Translation quoted from: The Rudder (Pedalion) 253.
244 Cyril Hovon
this dispute 9 . I just want to mention here that many independent scholili
not recruited to the battle from opposite jurisdictional trenches, suppoi I thj
interpretation of the canon offered by K. Miiller 10 . According to the scholw
the canon means that if any clergyman or bishop of a lower rank has disputl
with his Metropolitan, who is an hierarch of a higher rank, he should appeal to
the exarch of the diocese (in the Greek text, "E^ap^oc, tfjc, Sioucrjaeioc,), who il
a Metropolitan of the see in the administrative centre of a civil diocese. I !< >w
ever, three dioceses must be excluded from this rule, because they did not h.iw
proper exarchs sitting in their capitals. These are dioceses of Pontus
and Thrace which belonged to the jurisdiction of Constantinople. Thereton
clergy and bishops of these dioceses should appeal, according to the canon,
straight to the Archbishop of Constantinople.
This interpretation is in conformity with beliefs of St Nikodemus tfu' I [|
giorite whose hermeneia of canons has great authority among the Orthotic
St Nikodemus sees two extremities in understanding of the canon 9 11 . Oiv
we can name "pro-Roman", and the other one, "pro-Constantinopolitan". Tin'
former one supposes that if Constantinople entertains supra-jurisdictional ap
peals, then even more Rome does so. Those who support the latter extrefll
ity, bestow on the Patriarch of Constantinople the right of "general appal
(KOBOAOU "EKKAUTOV) and wish that he be first and highest judge over all I lit*
Patriarchs". As Nikodemus believes, such theologians, "being opposed to llu«
rule and authority of the Pope, and desirous to honour the Patriarch of < '<>n
stantinople, have inclined to exaggeration". The correct exegesis of the canon,
for Nikodemus, is that clergy and lower bishops can surpass middle-ranked
Metropolitans and appeal either to the exarchs of their 'dioceses' or to the Pa
triarchs. This can happen only within the same Patriarchal jurisdictions. I
Nikodemus insists that "Constantinople has no authority to act in the dioct.
See for instance polemics between Metropolitan Maximus of Sardes (Le PatriarCB
oecumenique dans l'Eglise orthodoxe [Paris 1975]) and Prof. S. Troitsky (O CMbic/ie ' J u l
KaHOHOB XanKHflOHCKoro co6opa, >KypHa;i MOCKOBCKOH naTpwapxHii [1961,2] 57-65). Set
about the retrospect of the polemics in Mepouonax MOB (Fena), Pa3MMnuieHHfl A.B. Kap ranun.i i >
pojiH KoHCTaHTHHononbCKoro naTpwapxa B ITpaBoaiaBHOH HepKBH H HX 0To6pa>KeHHe B I pyfll I
coBpeineHHhrx npaBOOiaBHbix 6orocnoBOB, Materials of the Theological Conference of the \<w.
sian Orthodox Church "Orthodox teaching about the Church", Moscow, 17-20 November 2(H) I
http://www.theolcom.ru/uploaded/129-146.pdffaccessed 19 January 2010]).
10
K. Miiller, Kirchengeschtchte, Bd. 1 (Tubingen 21929) 656-658. Midler's interpretation oftfl
canon is shared by such scholars as: A. H. M. Jones, The Later Roman Empire (Oxford 1964} vol I
300; E. Herman, Chalcedon und die Ausgestaltung des Konstantinopolitanischen Primats, in: A
Grillmeier, H. Bacht (eds.), Das Konzil von Chalkedon, Bd. 2 (Wurzburg 1953) 477; Archblthll
P. L'HuUlier, The Church of the ancient Councils {New York 1996) 233-236, and others.
11
Nikodemus the Hagiorite, op. cit. 161-162.
[postolicity and Right of Appeal 245
M"s and parishes of other Patriarchs. Also he, according to the canon, has no
Hghl to entertain appeals in the entire Church (sv tfj KCXBOAOU 'EKKAnaia)".
If we take this theory as the most probable interpretation of the canon 9,
.iiid so we do, then it is of special interest for us the situation in the diocese
t)j Asia. The administrative centre of this diocese was Ephesus, which had
ipostolic bishopric. In spite of this, there are no indications that this see was
I i i< lowed with any right of "exarchate", as Archbishop Peter L'Huillier demon-
trated in his investigation of the local situation 12 . As late as at the sixth ecu-
menical council, the Metropolitan of Ephesus was mentioned as an "e^apxoc,
ills Axnavcbv 6ioiKna£a>c,". However, his signature was 15 th on the list, which
means, as Archbishop Peter remarks, "that the title was purely honorific" 13 .
Moreover, as the famous canon 28 of Chalcedon shows, the Metropolitans of
Ephesus, together with their colleagues from Heraclea and Nicomedia, were
jleprived of the right to consecrate bishops for "barbarians" on their own ter-
i iiories. This right was assigned to Archbishops of Constantinople only.
In conclusion, it is obvious that there were and still there are difficulties with
recognition of the right to entertain appeals from other jurisdictions in both
i ases of Rome and Constantinople. The East did not recognise such a right
for ihe Church of Rome unequivocally. At the same time, many Orthodox
i I lurches and theologians deny this right for the Church of Constantinople.
Even more difficult is the situation with apostolicity in connection with this
suggested right. While those western theologians and hierarchs who recog-
nised this right in regard to the Roman see, occasionally made references to its
ipostolicity, the situation with Constantinople is completely different. When
such right, regardless of how it is interpreted, was mentioned in the eastern
sources, there are no references to suggested apostolicity of the see. Moreover,
I hose sees which were eligible to entertain this right in their own jurisdictions
and at the same time were apostolic, like the see of Ephesus, were in effect de-
prived of the right, which was transferred to Constantinople. The paradox is
that the other diocesan Metropolitans who were endowed with this right, were
not apostolic, while Metropolis of Ephesus, which was apostolic, lost it com-
pletely! It clearly indicates that for the East, this right was totally disconnected
from apostolicity and was in fact a derivation of the political prominence of
the cities where Metropolitans were based.
See P. L'Huillier, op. cit. 235.
Ibid.