Flawed Forensics: Miaphysites on Trial in the Courts of Justin II

In the legal-ecclesiastical environment of the 6^th century, a demonstration of flawed legal proceedings was an attack on the institutional legitimacy of the Chalcedonian church. It was the most viable challenge to Chalcedonian patriarchs John Scholasticus and Eutychius and their imperially sanctioned enforcement of union. By contrast, it strengthened the legitimacy of the embattled miaphysites. John of Ephesus sought to expose fraud, lawlessness, and wilfulness in the Chalcedonians' legal process, thereby systematically undermining the intention, process, and outcome of legal proceedings against the miaphysites.

Introduction

“How do you sit there like a Christian but judge the servants of God like a pagan?” (ܡܢܐ ܝܬ̇ܒ ܐܢܬ ܐܝܟ ܟܪܣܛܝܢܐ̇ ܘܠܥܒ̈ܕܘܗܝ ܕܐܠܗܐ ܕܐ̇ܢ ܐܢܬ ܚܢܦܐܝܬ).1

William Cureton, ed. The Third Part of the Ecclesiastical History of John, Bishop of Ephesus (Oxford: Oxford University Press, 1853), 6. Book 1, Chapter 9; 8. John of Ephesus, Historiae Ecclesiasticae Pars Tertia - Textus, CSCO (Paris: Typographeus Reipublicae, 1935), 8. (Henceforth, references to the text will take the form: HEPT, book, chapter; page number in Brooks’ edition.) All translations my own unless otherwise stated.

Thus John, the Severan bishop of Ephesus, recorded Stephen the presbyter’s protestation before an unnamed Roman prefect.2

The focus of the following argument is the relationship of the Chalcedonian faction represented in Constantinople by patriarchs John Scholasticus and Eutychius, and the Severan faction represented by John of Ephesus, Paul of Antioch, and various other bishops and presbyters who will be mentioned throughout the article. Despite an arguable lack of precision, I shall very commonly refer to the two groups as Chalcedonians and miaphysites. For accounts of the diversity and its significance, especially in the latter position see: Philip Booth, "Towards the Coptic Church: The Making of the Severan Episcopate" (Millennium 14 [2018]), and Volker L. Menze, Justinian and the Making of the Syrian Orthodox Church, Oxford Early Christian Studies (Oxford: Oxford University Press, 2008).

John’s account of recent events, the third book of his Ecclesiastical History, almost begins with this passion narrative; a crowd dragged the cleric before an official. After a brief exchange, Stephen’s case was transferred to the “Synodite” (Chalcedonian) bishop, who confined Stephen in such poor conditions that he died in squalor. The Severans who buried him treated his body as that of a martyr, and by this treatment, made clear that they at least did not believe he had died of natural causes. With this opener, John of Ephesus directly confronted the perceived paradox of Christian persecution in a Christian empire.

The increasing symbiosis of the church and the law between the 4^th and 6^th centuries has been well documented in dedicated works such as Caroline Humfress’ Orthodoxy and the Courts in Late Antiquity and, more recently, Mary Farag’s What Makes a Church Sacred?.3Orthodoxy and the Courts in Late Antiquity,What Makes a Church Sacred?: Legal and Ritual Perspectives from Late Antiquity Humfress states, for example, that the legal framing of heresy and orthodoxy “necessitated the legal categorization and systematization of religious belief itself.”4Orthodoxy and the Courts in Late Antiquity Laws and legal thinking were not only impositions of state power as a means of church governance. Instead, they came also to be recognized internally as valid methods of a doctrinal definition. Beyond doctrine, the church adopted the systems and definitions of Roman law for its everyday functions. For example, Farag discusses the complicated history of the church’s use of the classical juristic conception of res sacra. Despite some to-and-fro on the subject, the simultaneous processes of adoption by the church and imposition by imperial legislation of significant elements of an idea first formulated to govern the property of pre-Christian temples show the draw and influence of Roman law on the church.5What Makes a Church Sacred? : Legal and Ritual Perspectives from Late Antiquity Such indeed was the closeness of the two institutions that it is rare for a work on one not to refer to the other.6

See, for example, the second section (of three) in Jill Harries and I. N. Wood, The Theodosian Code: Studies in the Imperial Law of Late Antiquity, 2^nd ed., Bristol Classical Paperbacks (London: Bristol Classical Press, 2010).

The impact of imperial legislation upon the church should be and has been recognized as definitive in ecclesial-imperial relations.7

For an example of the importance of imperial intervention in general to orthodoxy, see: Philip Wood, 'We Have No King but Christ' : Christian Political Thought in Greater Syria on the Eve of the Arab Conquest (C.400-585), Oxford Studies in Byzantium (Oxford: Oxford University Press, 2010), 21.

However, the church was not only subject to legislation but also became a significant author of its own law. The creation of canons provided forensic blueprints against which orthodoxy and heterodoxy could be tested. It was increasingly a model of orthodoxy generated by legal means that individuals conformed to or fell short of. One example of this can be seen in the excommunication of Nestorius at the Council of Ephesus in 431. While the issues at stake were theological, the method, at least according to Nestorius, was forensic but flawed: “I was summoned by Cyril, who had assembled the Council […]. Who was judge? Cyril. Who was the accuser? Cyril.”8

Nestorius, “The Bazaar of Heracleides,” ed. G. R. Driver and Leonard Hodgson (Oxford: Clarendon Press, 1925), 132.

Thomas Graumann rightly points out that Nestorius “expects his audience to recognize [that proper procedure had been violated] and share his expectations of due process.”9

Thomas Graumann, "Council Proceedings and Juridical Process: The Cases of Aquileia (Ad 381) and Ephesus (Ad 431)" (Studies in church history 43 [2007]), 100.

At the risk of generalization, the focus on formally necessary elements, determined by a legal intellectual context and shored up by knowledge of Roman law, was a regular feature of contested theology in Late Antiquity. However, as we shall encounter in John of Ephesus’ account, most concerns with this method were found not in the forensic form but in its misuse.

As they were contestable, trials were considered final only in a limited manner. The Council of Chalcedon of 451 ended neither the Christological debate, nor the existence of miaphysite clergy and their congregations. Indeed, John of Ephesus’ Ecclesiastical History was composed between 571 and 585, over one hundred years after the council. Of course, this is by no means the most enduring result of Chalcedon, but it does affirm the continuation of the dispute to some degree among bishops in the Roman Empire. Given the circumstance of this theological dispute, the Ecclesiastical History is partially an apologetic, which wrestles with the implications of being ruled outside the Chalcedonian church. Like Nestorius, John questioned the formal validity of the processes that confirmed the ruling against him and his fellow miaphysites, thereby questioning the legitimacy of the ruling itself. John’s interest in the formal aspects of legal definitions of orthodoxy and communion, from the exact procedures of and the necessary individuals for rulings of orthodoxy to the precise words to be used in ecclesiastical government, will be a central theme of this article.

However, John’s focus on the above elements is not told to us explicitly but is rather a point made apparent by literary means. John has particularly shaped the first book of his history as an ever more outrageous catalog of abuses by Chalcedonian enforcers against miaphysite clerics. The effect is that the legal process and its misuse are brought to the reader’s attention both by a statement of fact and by the manner of presentation. Thus, not merely by the cataloguing of the events themselves but also by the form of expression, we are encouraged to agree with John’s assessment of the institutional validity of his church and fellow bishops and the corresponding invalidity of the Chalcedonians. Muriel Debié has encouraged the reading of Syriac historians as literary agents, but the focus of this agency has perhaps been too narrowly on their purposes in developing a cultural identity.10L'écriture De L'histoire En Syriaque : Transmissions Interculturelles Et Constructions Identitaires Entre Hellénisme Et Islam : Avec Des Répertoires Des Textes Historiographiques En AnnexeCHRC Besides questions of identity, if we are to properly appreciate the full range of purposes that motivated these authors, it remains undoubtedly important to consider the immediate practical purposes of Syriac historians. For this task, it is essential that we bear in mind their literary methods. An assessment of Tacitus’ Annals that ignored his authorial decision to focus on legionary rebellions in the first book would not be able to explain the purpose of his text fully.11The Annals of TacitusArethusa It would preclude any assessment of a potential disparity between his extensive treatment of the issue and the significance of the events. Thus, by failing to analyse his method, we would be in a weaker position to determine his purpose. Matters of literary form are undoubtedly crucial in an account of the literary agency of Tacitus as a historian. Attention to the structure of John’s work in this essay seeks to continue the process of affording the same fulness of agency to Syriac historians.

The increasing entanglement of Roman legal and intra-ecclesial conflict resolution is typified in Justinian’s novels, which frequently deal with matters of church government. While relying on canons as a source of evidence for right practice in ecclesiastical matters, they nevertheless produce their own normative statements in support of the canons’ contents and the authority of canons as legally binding in ecclesiastical matters.12

The following three examples show three different relationships: 1) the regulation of clerics in a civic context, 2) the regulation of monastic rules themselves by the imperial government and 3) imperial support of internal canonical regulation. N. 3 (535) limits the number of clergy in the principal church of the city to 420. N. 5 (535) provides monastic regulation. N. 6 (535) states that the canonical regulation of ordination has the force of secular law.

Altogether, the approach is not so much merely belt and braces, but indeed belt as braces and vice versa; canon law and secular law regulate the same things, and often refer to the authority of the other source in defence of their stipulations. Therefore, it is unsurprising that John of Ephesus was keen to document the ongoing legal and semi-legal processes that established orthodoxy in the Chalcedonian-miaphysite dispute. In such a context, the validity of either side’s position was highly dependent on correct process.

John of Ephesus was not a disinterested third party in these proceedings but was personally involved in the trials, mediations, and reported injustices of the persecutions under Justin II and his successor Tiberius II. Raised in Amida’s “eastern miaphysite monasticism,” John claims that he led imperial missionary appointments in 542 under Justinian, which earned him the title “who is over the heathen” (ܕܥܠ ܚܢ̈ܦܐ) and “idol breaker” (ܡܬܒܪ ܦܬܟܪ̈ܐ ), and was consecrated bishop of Ephesus in 558 by Jacob Baradaeus.13

Alexander Petrovich Dyakonov, John of Ephesus and His Ecclesiastical-Historical Works (Saint Petersburg: V. F. Kirschbaum, 1908), 5. For further background on John of Ephesus see Jeanne-Nicole Mellon Saint-Laurent, Missionary Stories and the Formation of the Syriac Churches, Transformation of the Classical Heritage 55 (Oakland, California: University of California Press, 2015), 72-79. HEPT, book 2, chapter 4; 58.

His two surviving works are his Lives of the Eastern Saints and the third part of his Ecclesiastical History. The former deals almost exclusively with the activities of miaphysite saints in the East, while the latter handles the later marginalization and persecution of the miaphysite hierarchies by Justinian’s successors. John of Ephesus’ fortune was varied. Under Justinian, he had been an important agent in the evangelistic mission in Anatolia. Under Justin II, he was an imprisoned and marginalized prelate whose position as bishop of Ephesus was now titular in the barest sense of the word.14

HEPT, Book 1, Chapter 17, 18–19 (ܘܚܒܫܗ ܒܒܝܬ ܐܦܝܣܩܦܝܘܢ ܕܝܠܗ. ܘܠܗܠܝܢܕܫܪܟܐ. ܚܕ ܒܬܪ ܚܕ ܐܝܬܝ ܘܚܒܫ ܐܢܘܢ ܠܘܬܗ. ܗ̇ܢܘ ܕܝܢ. ܠܦܘܠܘܣ ܘܠܝܘܚܢܢ ܘܠܐܣܛܦܢܐ ܘܠܐܠܝܫܥ ).

This change of fortune and his imprisonment provide context for the composition of his apologetic history.

Despite the repetition of material within the work, and the author’s admission of haste owing to the adverse conditions of persecution and imprisonment, John’s handling of legal events and processes, things which had become the building blocks of orthodoxy, must be acknowledged to be extremely careful. Brooks’ uncharitable characterization of John as “not a literary writer” should be reconsidered.15

John of Ephesus, Lives, PO 17.1, xii.

John structured his history to present increasingly chaotic and informal proceedings in the reign of Justin II against the miaphysites. Thus, he undermined the forensic process of orthodoxy and the strong contemporary position of the Chalcedonians by calling into question the validity of their formally irregular activities. He thereby sought to justify in his work the refusal of miaphysite clergy to accept the council of Chalcedon and its enforcement by rendering the legal practices of its proponents suspect.

However, this aim must be refined a little further. John of Ephesus’ administrative roles in the 540s and his high degree of education make it seem certain that he could have written his history in Greek. Debié has written that, through his appointments and education, John had “un hellénisme parfaitement assimilé.”16L'écriture De L'histoire En Syriaque Given then that he wrote in Syriac, his purpose could not have been to persuade the Chalcedonian population of Constantinople of his position. Rather, the work should be seen in a complementary role to his Lives of the Eastern Saints. In that work, he established the credentials of his miaphysite subjects as conduits of the Holy Spirit, as holy men capable of works of power and with extraordinary ascetic credentials, all inherited from a long line of Syriac saint-ascetics.17

Wood, 'We Have No King but Christ', 195.

The Ecclesiastical History focuses not on the charismatic power of his church but rather on its institutional soundness.18Historiography and Space in Late AntiquityLives Ecclesiastical History In the challenging conditions of the 570s and 580s, this companion volume was meant to assure a beleaguered group further.

The Text

The text used throughout is that of Cureton based on the incomplete but early, 7^th-century manuscript numbered 14640 Additional MSS in the British Museum. This is dated to 688 by a further manuscript (Additional MSS No. 14647) which Cureton identifies as written in the same hand with explicit dating: “This book was finished in the month of Adar of the year 999 in the Greek era” (i.e., Seleucid dating) (ܐܫܬܠܡ ܕܝܢ ܟܬܒܐ ܗܢܐ ܒܐܝܪܚ ܐܕܪ ܕܫܢܬ ܬܫܥܡܐܐ ܘܬܫܥܝܢ ܘܬܫܥ ܒܡܢܝܢܐ ܕܝܘܢܝܐ)19

Cureton, HEPT, iv.

Brooks’ edition is more recent and critical, including both the Vatican manuscript Bibliothecae Vaticanae Syr. CXLV for those sections of the sixth book it preserves, and makes use of Michael Rabo for lost material, although, as Brooks admits, “since he abbreviated his source in this part, it offers almost nothing for the correction of the text.”20HEPT - Textus This very compact manuscript tradition justifies the continued use of Cureton’s careful transcription of the principal manuscript. His greater attention to the dots assists reading, mainly due to the large number of Greek loanwords in the text.

The work as a whole was divided into three sections, which were in turn subdivided into books. Although the first two sections of the text, which covered all history from Adam to Justinian I, are largely missing, except as quotation in later chroniclers, the third part in six books, which handles contemporary events, remains largely intact. Although the text of this third section is incomplete, John’s structural efforts can still be seen in books one and two of the extant text. These are marked as a unified production by a self-conscious restart at the outset of book three. The dating undertaken by Cureton and presented in the preface to his edition offers termini post quos based on the events of the narrative, which, although given as dates of composition, by no means preclude the alternative suggested above, namely that books one and two were composed together before book 3.21

Ibid., vi.

The internal dating puts book one after 581 and book two after 577. Given that the two books seem to have been composed together but that the first deals with later events, these dates alone, which demonstrate a non-chronological approach to his subject matter, argue for John’s deliberate presentation of material. Books 3-6 will be largely excluded, firstly because they are not the product of the same effort as the first two books, and secondly because their concern moves away from trial scenes. It would be unfair to allow the disruptive circumstances of John’s life, which caused his history to be written piecemeal, to give a falsely disrupted sense of his work. This would be false in that when circumstances allowed and John wrote continuously, such as in books 1 and 2, his writing was not marked by “some confusion in his narrative, some repetitions, and apparent contradictions” but instead demonstrates structural and thematic coherency.22

The Miaphysite Church under Justinian

It is worth briefly surveying the legal treatment of miaphysites under Justinian and Theodora so that the changed circumstances under Justin II can be better appreciated. Muriel Debié calls John “simultaneously the victim, the witness, and the whistleblower” of the Justinianic persecution.23

Muriel Debié, "Du Grec En Syriaque : La Transmission Du Récit De La Prise D'amid (502) Dans L'historiographie Byzantine" (Byzantinische Zeitschrift 96:2 [2004]), 606.

Van Ginkel writes that the primary consideration for inclusion in the Lives of the Eastern Saints was the demonstration of steadfastness in the face of Chalcedonian persecution.24

J. van Ginkel, "John of Ephesus: A Monophysite Historian in Sixth-Century Byzantium" (Rijksuniversiteit Groningen, 1995), 41, 44.

Indeed, the reality of the Justinianic persecution is borne out in Menze’s study of the attack on the heart of the miaphysite movement in the monasteries and Justinianic legislation against the ownership and production of miaphysite texts.25

Menze, Justinian and the Making of the Syrian Orthodox Church, 135.

The “obvious patronage,” as Alexander Dyakonov put it, of Justinian’s rule seems to have been received principally by John himself.26

 Dyakonov, John of Ephesus, 5. “явное покровительство”. For an account of John’s use of these imperial funds see Debié, L'écriture De L'histoire En Syriaque, 137.

In his dealings with the miaphysite hierarchy concerning their Christology, Justinian is unequivocal. As early as 536, Justinian’s Novel 42 declared anathema on Severus of Antioch and other members of his party under the charge of contravention of the canons of Chalcedon. The punishment demanded was deposition from their episcopal seats, internal exile, and the repossession of property: “expellere vero sancimus eos de civitatibus ab eis turbatis … [constitutiones] et domos ipsas in quibus tale aliquid agitur et praedia ex quibus alimenta ministrantur sanctissimis ecclesiis assignant.”27

N. 42.3 (536) (We declare that they certainly be expelled from the cities they have troubled … and (our) constitutions designate to the most holy churches the very houses themselves in which [the heresies of Severus or Nestorius were preached] and the farms from which they supplied food).

Justinian’s Tractatus contra Monophysitas of 542/3 is equally damning. The unity of the church is described as a requirement of both reason and charity (τοῦ λογισμοῦ καὶ τῆς χάριτος ), and, if any doubt remained concerning who threatened this unity, a series of eleven anathemas were appended, including “Εἴ τις οὐχ ὁμολογεῖ δύο φύσεις τῆς θεότητος καὶ τῆς ἀνθρωπότητος εἰς μίαν ὑπόστασιν συνδραμεῖν ... ἀνάθεμα ἔστω .”28 Justinian actively sought both practically and theologically to undermine the miaphysites for the better part of his reign. Despite this, John is somewhat ambivalent about Justinian’s emperorship. John likewise defends Tiberius II as Caesar, documenting his rebuke of the patriarch John Scholasticus for persecuting the miaphysites upon his admission that “they are not pagans… neither, my lord, are they heretics” (ܚܢ̈ܦܐ ܠܐ ܐ̣ܝܬܝܗܘܢ ... ܘܐܦܠܐ ܡܪܝ ܗܪ̈ܬܝܩܐ ܐ̣ܝܬܝܗܘܢ), a sentiment later echoed by the emperor Maurice.29

HEPT, book 1, chapter 37, 47.

An explanation for John’s even-handedness might be found in the fact that Justinian’s position is perhaps a little less clear cut than the harsh measures of Novel 42 suggest. Hamilcar Alivisatos suggested that the strictness of the measures of Novel 42 might have been necessitated as an indication of good-will to Rome: “Justinian war aber nicht nur Theologe, sondern auch Kaiser … Wäre die Synode und das Edikt von 536 nicht gekommen, so wäre gleich nach dem ersten (acacianischen) Schisma ein zweites mit Rom dagewesen”.30Die Kirchliche Gesetzgebung Des Kaisers Justinian I Michail Grazianskij has more recently divided Justinian’s religious policy into four distinct phases, and argues that in each instance, Justinian balanced contemporary political considerations with his theological intentions. Thus, for example, he has likewise characterized the early period of Justinian’s reign (532-536) by both a sensitivity to the position of the Roman church following the Acacian schism and the continued need to reconcile the miaphysites.31^thStudies in Church History As an example of the complex relationship, Grazianskij considers the appointment of Anthimus as the patriarch of Constantinople. Formerly, this appointment has generally been thought of as either an example of Justinian’s shrewd ecclesiastical politics or the result of Theodora’s interference. Grazianskij argues that a reassessment of the sources rules out the latter option.32 If we suppose that Justinian exclusively favoured the Chalcedonians, then Anthimus’ appointment had little to commend it. Anthimus’ translation from Trebizond rendered his position in Constantinople canonically suspect, and he favoured compromise over total Chalcedonian victory. He was, therefore, neither legally nor doctrinally bulletproof from a Chalcedonian perspective. Grazianskij proposes that this was deliberate. It provided Justinian with the possibility of the reconciliation of the parties around a mutually agreed position and with an easy, non-doctrinal reason for his deposition should the negotiations fail.33

For our current purposes, two conclusions should be drawn from this. Firstly, it demonstrates the practically-oriented ambivalence of Justinian’s policy. John may have harboured hope of future favour if the miaphysites could provide a reasonable path to unity. Secondly, it again demonstrates the (ab)use of legal mechanisms in the church disputes of the 6^th century.

Nevertheless, however justified his position might have seemed through a practical consideration of recent history, it is still equally correct to read John’s denial of imperial responsibility as an endorsement of the imperial system. Indeed, this is a key aspect of John of Ephesus’ historiography. Debié gives John’s account of Zʿura, a Syriac saint-ascetic in Constantinople, as characteristic of the opinion of both John and the whole Severan church. Zʿura’s refutation of Justinian’s authority is taken as indicative of a wholesale move in the Syriac church: “the Syrian Orthodox transferred their regard to a religious, spiritual, and eschatological level”.34

Debié, "Syriac Historiography and Identity Formation" 98.

However, there are good reasons for interpreting this otherwise. Firstly, Zʿura’s disavowal is his own and not John’s. As argued by Philip Wood, “parrhesia” (παρρησία) is a highly significant trait, but it is also quite peculiar to Zʿura.35History of European ideas His frankness before the emperor is explicitly stated to be of divine origin and extraordinary.36Livesܡܛܠ ܦܪܗܣܝܐ ܐܠܗܝܬܐ ܕܩܢ̇ܐ ܗܘܐ He should not, therefore, be read as a mouthpiece for John. This leads to the point that, secondly, Zʿura wields a charismatic authority appropriate to the Lives of the Eastern Saints but out of place in the court politics and institutional wrangling of the Ecclesiastical History. Indeed, Wood points out that his parrhesia’s purpose was not to win the political dispute but to inspire the population.37 Consequently, this parrhesia was not manifested in nuanced argument; characteristically, Zʿura challenged the ‘synod’ not using argument, but by cursing Justinian: (ܐܬ̇ܐ ܓܝܪ ܠܒܪ ܡܢܟ ܠܐ ܢ̇ܚܘܐ ܠܟ ܡܪܝܐ).38Lives John of Ephesus tells us that Zʿura’s subsequent curing of Justinian rendered the emperor amenable to Zʿura on all points but church organization. This account of the rehabilitation of Justinian from demoniac to the holy man’s awe-filled confidant suggests that, at this earlier stage in his life, John appears not to have accepted in every instance the Chalcedonian claim that his church was acephalous. Still hoping for an imperial change of heart, John's later articulation of the kingship of Christ within his church was not the only avenue he pursued.39

Debié, "Syriac Historiography and Identity Formation" 97.

An ideological consideration is necessary, given John’s personal experience of persecution, imprisonment, and destitution. In other words, given that John frequently suffered at the hands of the emperors, we must ask why he was so positive about them. Indeed, when detailing the supposed demonic possession of Justin II at the beginning of book three, John explicitly stated that his earlier circumlocution of the issue throughout the second book was out of loyalty to the imperial office: “So that it not be considered as if for the shame or disgrace of the high institution of kingship” (ܡܢ ܗ̇ܝ ܕܠܐ ܢܣ̣ܬܒܪ ܕܐܝܟ ܕܠܚ̣ܣܕܐ ܐ̇ܘ ܠܨ̇ܥܪܐ ܕܛܟ̣ܣܐ ܪܡ̇ܐ ܕܡ̇ܠܟܘܬܐ.40

HEPT, book 3, chapter 1, 120.

This is further evidence of John’s hope to preserve the reputation and position of the earthly king, and suggests that his assessment of the imperial institution is positive by default. Van Ginkel has argued that the Ecclesiastical History’s complex process of composition can explain John’s sometimes inconsistent approach to his imperial subjects: “When writing during the life of Justin II, John blamed most of the evil deeds of his reign on his advisors. But in chapters written after his death, the emperor is held fully responsible and justly punished (mental derangement) to save him from a worse fate.”41Orientalia Christiana Analecta

Even so, his generally positive account of the institution merits further attention. Following Hartmut Leppin, we might consider the nature of John’s literary activity. Leppin has described the Ecclesiastical History as “a variant of Greek Christian historiography as it developed in the late antique Roman Empire.”42 This is, in a sense, unsurprising. Greek was the language of ecclesiastical history writing. It seems likely that John’s adaption of this genre for a Syriac-language work was nevertheless a significant choice. While considerations of the audience might explain his choice of language, his choice of genre is remains best described as a product of his cultural Romanitas. Leppin’s description of John’s pro-Roman account as the product of a writer “attached” to the empire is undoubtedly correct, but it needs further substantiation.43 John’s reliance on the methods of ‘legal orthodoxy’ is the backdrop to his account of the trial scenes, which will form the subject of the main argument of this article. Leppin’s account of John’s Roman viewpoint will be strengthened by showing his investment in law and the Roman legal system as determiners of orthodoxy.

However, a pro-Roman account does not rule out all criticism of the regime. Contextualizing the character of John’s Kaiserkritik of Justin and Tiberius, Averil Cameron has noted especially John’s credentials as a Constantinopolitan and his generally holistic approach to the emperors and their wives as people rather than characters.44

Averil Cameron, "Early Byzantine Kaiserkritik: Two Case Histories," (Byz. mod. Greek stud 3:1 [1977]), 11–13.

Throughout his works, John usually portrayed emperors and Caesars favourably when uninfluenced by supernatural evil.45L'écriture De L'histoire En Syriaque An explanation for John’s optimistic view of his persecutors is hinted at in his treatment of the imprisonment of Paul the Black, the miaphysite patriarch of Antioch in the mid-6^th century. Incarcerated, Paul too wrote an account of the doctrinal dispute but was discovered to have done so by his jailors. Upon his confession of authorship, the emperor and patriarch threatened him with death, apparently with added vehemence for his slander of the Roman state: “There were threats of death against him for this reason: that he had included in [the writing] indictments of Rome” (ܠܘ̇ܚ̈ܡܐ ܕܡ̇ܘܬܐ ܗ̣ܘܘ ܥܠܘܗܝ. ܟܕ ܠܗܕܐ ܘܐܦ ܗ̇ܝ ܕܩ̣ܘܛܪ̈ܓܐ ܕܪܗܘܡܐ ܐ̇ܠܘ̣ܬ ܗܘܐ ܠܗ̇ .).46

HEPT, book 2, chapter 2; 56.

Paul of Antioch was no less a Roman than John, yet this did not preclude this same criticism of Rome from being absent in John’s work. Although it is not clear what is meant by “criticism of Rome”, we should certainly differentiate this from criticism of its inhabitants, imperial or otherwise, for John’s work certainly did contain the latter. John’s continued hope for the rehabilitation of the emperor is the explanation for this difference in approach. Alternatively, we might understand Paul’s antagonism towards Rome as a particularly unwelcome criticism of the imperial family. In that case, this could be explained by his complex relations with Athanasius, his opponent in Alexandria, and a descendant of Empress Theodora.47

Marianna Mazzola, "Bar ‘Ebroyo’s Ecclesiastical History: Writing Church History in the 13^th Century Middle East" (Université Paris sciences et lettres; Universiteit Gent, 2018), 241.

However, John saw emperors as essentially good and interested in the truth (ܫܪܪܐ). In a passage referenced above, Tiberius began his interrogation of Patriarch John Scholasticus with “I want the truth” (ܨܒ̇ܐ ܐܢܐ ܕܫܪܪܐ). Even concerning events as shocking, and possibly open to hysterical treatment, as an apparent sacrifice to Zeus uncovered at Edessa in 579 following an investigation into Paganism at the behest of Tiberius, the emperor established a court to uncover “the truth of the matter” (ܫܪܪܗ ܕܣܘܥܪܢܐ), rather than show trials.48

HEPT, book 3, chapter 30; 159.

In this instance, the emperor is introduced as the “merciful emperor” (ܡ̇ܠܟܐ ܡ̇ܪܚܡܢܐ ), but in a turn of events parallel to John’s own case, the emperor’s negligence of the affairs of justice led to injustice, corruption, bribery, and finally, a massive riot.49

HEPT, book 3, chapter 31; 159–163.

Despite the emperor’s ultimate responsibility, the blame is laid squarely with lower officials, many of whom John believed guilty of paganism themselves. Although they are not equated explicitly with the Chalcedonian party, John noted the location of the trial to create a link between this miscarriage of justice and Chalcedonian theology: “and [the appointed judges] were sitting and examining the matter in the great palace of the kingdom that was called Placidia for many days” (ܘܗܘܘ ܝܬ̇ܒܝܢ ܘܡܥ̇ܩܒܝܢ ܥܠܘܗܝ ܕܣ̣ܘܥܪܢܐ ܒܒܝܬܐ ܪܒܐ ܕܡ̇ܠܟܘܬܐ̇. ܕܡܬ̣ܩܪܐ ܕܦ̇ܠܩܕܝܘܣ ܝܘܡ̈ܬܐ̣ ܣܓ̈ܝܐܐ ).50

HEPT, book 3, chapter 30; 159.

The Palace of Placidia was the home of the papal apocrisiarius (at the time, the future pope Gregory the Great). This is a subtle but definite indication by John of where he saw the problem.

In John’s case, rather than the emperor, it is the Chalcedonian clergy who are charged explicitly with deceit, perjury, and breaking oaths: “promises of deceit and oaths of falsehood of those against us; we know that there is no truth with them” (ܫܘ̈ܘܕܝܐ ܕܢܟܠ̣ܐ ܘܡ̈ܘܡܬܐ ܕܕܓܠܘܬܐ ܕܗܠܝܢ ܕܠܩܘܒܠܐ. ܝ̇ܕܥܝܢ ܚܢܢ ܕܫܪܪܐ ܠܘܬܗܘܢ ܠܝܬ).51

HEPT, book 1, chapter 22; 29.

Therefore, it is unsurprising that earlier ecclesiastical struggles are framed as created by hostile clerics, not the emperor himself. In the life of Zʿura, Pope Agapetus (another inhabitant of the Palace of Placidia) bears the brunt of John’s ill will for his attempted use of force in bringing Zʿura to court. John’s holy man makes clear that the outrage is twofold, seamlessly joining canon and private law. Agapetus’ demand cannot be met during their current observance of a fast, and his forcible removal would involve trespass on private property donated by Theodora.52

John of Ephesus, Lives, PO 17.1, 27–28.

This case shows that John saw both the perpetrators of the persecution and their illicit methods as similar under Justinian and Justin. He stressed in Zʿura’s life, as he would throughout the Ecclesiastical History, the formal irregularities in the behaviour of the Chalcedonians and their lack of respect for due process. However, by keeping the focus on truth in his presentation of legal proceedings, John equally realizes a tension between courts as an accepted instrument for the discovery of the truth and their frequent failure to do so. In contrast to the unfavorable view of Chalcedonian clerics, John’s presentation of the imperial hierarchy is, if not balanced, at least complex.

The Biblical Framework of the Ecclesiastical History

John presented court cases with dynamism and created a rapidly developing narrative. This narrative licence is one of the primary indications that John’s history is best understood less as a chronicle of events and more as a political apologia. Below, this will provide the bulk of the material for analysing John’s use of literary structure to defend his church. However, it is thematically situated in an overarching biblical and eschatological structure that frames the court cases.

Although, as mentioned above, the very beginning of the Third Part of John’s work is no longer extant, the first few lines of the remaining text set up this biblical framework. The following analysis is an impressionistic rather than exhaustive demonstration of John’s skill as a literary historian in that it makes no claims to exhaust his use of scriptural framing. The beginning of the text, as it remains, is dense with quotations from Matthew’s Gospel, which are deployed non-sequentially and drawn from across the book. Matthew 4 moves into Mathew 24 before an extended quotation from Matthew 10, which places the court proceedings documented above explicitly in the Biblical context of persecution: “Beware of people delivering you to the courts and in their synagogues you will be beaten and you will be brought before governors and kings for my sake as a witness for them and the Gentiles.”53

HEPT, book 1, chapter 3; 3 cf. Matt 10:17–18.

John is clear that this is precisely what is taking place in his own time by capping the quotation with “We are already seeing these things clearly.” Equally striking is John’s omission of the end of verse 22, “but he that endures to the end shall be saved”, choosing to remove any silver lining from his bleak narrative of earthly persecution.

However, John does not settle for this concluding exegesis and omission but is prepared to add to the biblical text. His quotation of Matthew 24, which follows Christ’s declaration of the end times and the second coming, matches the Peshitta except for a final added participle (ܗ̈ܘܝܢ) which enlivens the quotations to the present time of writing: “when you see all these things which are [now]” (ܕܡܐ ܠܡ ܕܚܙܝܬܘܢ ܗܠܝܢ ܟܠܗܝܢ ܕܗ̈ܘܝܢ).54

HEPT, book 1, chapter 3; 3 cf. Matt 24:33.

Although so much of John’s evidence is uncorroborated and frequently demands a suspension of disbelief, an awareness of John’s historiographical framework allows the text to be approached with specific caution. John not only presented his miaphysite history within the context of biblical persecution but also employed literary manipulation for added immediacy. The cases John presented frequently contribute explicitly to the realization of his biblical eschatology, either by participating typologically in the biblical narrative or serving simply as evidence of the present end times. To appreciate the cumulative impact of John’s structural development, the cases will be handled sequentially, following his order. The examples are laid out below in tabular form for quick reference.

Miaphysites on Trial

Defendant	Prosecutor	Judge55Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische AbteilungAnnuarium Historiae Conciliorum	Place in work
Stephen the presbyter	mob	prefect	Book 1, chapter 9
Paul of Asia	John Scholasticus	-	Book 1, chapter 14
Elisha of Sardes	John Scholasticus	-	Book 1, chapter 15
Stephan of Cyprus	John Scholasticus	Justin II	Book 1, chapter 16
John of Ephesus, Paul of Antioch, Stephan of Cyprus, Elisha of Sardes	John Scholasticus	John Scholasticus, afterwards the senate and the quaestor	Book 1, chapters 24, 27-29

Trial scenes form much of the first book of John of Ephesus’ Ecclesiastical History and invite many questions about the practicalities of the miaphysite persecution, the nature of miaphysite interaction with the Roman legal system, and John’s (mis)representation of these elements. John began his own ‘Acts of the Apostles’ with his own protomartyr, Stephen the presbyter, whose case provided the initial quotation for this article. He was brought before a prefect (ܗܘܦܪܟܐ) (ὕπαρχος) by a crowd who, “when they imprisoned him, [Stephen] anathematized them to their faces and in their wrath they delivered him to the prefect” (ܟܕ ܚܒܫܘܗܝ ܣܓܝ ܐܚܪܡ ܐܢܘܢ ܒܐܦܝ̈ܗܘܢ ܘܒܚܡܬܗܘܢ ܐܫܠܡܘܗܝ ܠܗܘܦܐܪܟܐ ).56

HEPT, book 1, chapter 9; 8 (placed here by Brooks – the episode is taken from Michael Rabo).

The trial, as Stephen declared it by his characterization of the prefect’s actions, “you are judging” (ܕܐ̇ܢ ܐܢܬ ), was derailed and transferred by the prefect to the Chalcedonian bishop. Importantly, when confronted with the proposition that he was, in fact, adjudicating, the prefect washed his hands of the matter (ܐܝܟܢܐ ܕܟܕ ܗܠܝܢ ܫܡ̣ܥ ܗܘܦܪܟܐ ܘܙ̣ܥ ܡܢ ܝܘܩܪܐ). At this first junction, John shows the secular power unwilling to condemn the Severans. It is instead the bishop who quarantines Stephen in Heracleia, denying him access to social interaction with his coreligionists: “it was not allowed that he should see anyone” (ܠܐ ܡܫܬܒܩ ܕܢܚܙܗ ܐܢܫ ), and clean clothes. John has modelled this double trial before the prefect and priest, including the secular prefect’s unwillingness to condemn Stephen, on the Gospel passion narrative.

In the cases of Paul of Asia, the miaphysite bishop of Aphrodisias, and Elisha of Sardes, John Scholasticus is the instigator of both prosecutions, actively seeking the bishops from their monasteries where each “was sat in his monastery in peace” (ܒܕܝܪܗ ܒܫܠܝܐ ܝܬ̇ܒ ܗܘܐ), bringing them to Constantinople as the patriarch’s captives, “and he imprisoned them in the bishop’s own house” (ܘܚܒܫܗ ܒܒܝܬ ܐܦܝܣܩܦܝܘܢ ܕܝܠܗ), to impose new holy orders on them.57HEPT Paul’s acquiescence under compulsion to the patriarch’s desire to have him ordained a second time elicits ridicule from his clerics who “were calling him ‘double dunked’!” (ܘܩܪܝܢ ܗܘܘ ܠܗ ܩܠܝܪ̈ܝܩܘܗܝ ܨܒܝܥ ܬܪ̈ܬܝܢ ܙܒ̈ܢܝܢ), whereas Elisha’s resistance is met with exile and monastic relocation.58

Ibid.

Neither of these makes any pretense to being a legally proper action. No judge or charge is specified. Instead, these cases build momentum concerning the illegal actions and depraved character of John Scholasticus.

The contrast can be drawn out by a comparison of the events here, and of Paul (and John’s own) ordination by miaphysite clergy in John’s Lives of James and Theodore. Here, the ordinations described of miaphysite clergy were performed “according to the sense of the canons” (ܐܝܟ ܚܝܠܐ ܕܩܢ̈ܘܢܐ), and John informs us that James (Jacob Baradaeus) performed these ordinations “with the rest the bishops” (ܥܡ ܫܪܟܐ ܕܐܦܝ̈ܣܩܘܦܐ).59Lives, PO However, we might be able to detect here some of John’s sleight of hand. We are told in the Lives that James and Theodore “made bishops for the countries of Egypt according to the command of the blessed patriarch Theodosius” (ܘܠܐܬܪ̈ܘܬܐ ܕܐܓܦܛܘܣ ܒܦܩܘܕܢܗ ܕܛܘܒܢܐ ܬܐܘܕܣܝܘܣ ܦܛܪܝܪܟܐ ܥܒܕܘܢ ܐܦܝ̈ܣܩܘܦܐ).60 This certainly legitimized their actions in Egypt, but John is notably silent on their ecclesiastical authorization to ordain in Asia. One explanation for John’s insistent focus on the canonical legitimacy of his fellow bishops in the Ecclesiastical History might therefore be an awareness that they were particularly vulnerable to accusations in this area. This might further explain John’s (mis)representation of John Scholasticus’ somewhat unbelievably forceful and capricious approach in these trials.

The significance of Elisha’s relocation is made amply clear by Justinian’s 5^th novel, in which it is written that monks who leave their monasteries either for the outside world or another monastery must leave all their property with the monastery: “substantia maneat et vindicetur a priori monasterio.”61

N. 5.7 (535) (Let their property remain and let it be vindicated by their former monastery).

This punishment, therefore, not only disrupted miaphysite networks, but also stripped the miaphysite leaders of their means. Conversely, the clerical ridicule Paul received for accepting reordination serves as the vox ecclesiae protesting uncanonical measures and alerting the reader to unlawful actions. John Scholasticus’ two supposed motives are made explicit in the cases of Elisha and Paul: pecuniary advantage and a sheer desire for outrage.

However, Elisha’s punishment is perhaps not as harsh as John makes it seem. Elisha was relocated from Beth Dios (ܒܝܬ ܕܝܘܣ) to Beth Abraham (ܒܝܬ ܐܒܪܗܡ). Beth Dios was a monastery of the pro-Roman and Chalcedonian Acoemetae. By contrast, it seems that Beth Abraham was possibly founded on premises gifted to John of Ephesus by the chamberlain Callinicus.62

 Susan Ashbrook Harvey, Asceticism and Society in Crisis: John of Ephesus and the Lives of the Eastern Saints, Transformation of the Classical Heritage (Berkeley: University of California Press, 1990), 29.

The relocation is, therefore, a case of miaphysite containment rather than isolation. This calls into question John’s earlier claim that the bishops were dwelling peacefully in their monasteries and instead suggests, as in the case of Stephen, that militant miaphysism was being addressed and contained by the Chalcedonians. Indeed, although an illness accompanies the relocation, this is not described as the intended consequence, something John is quite happy to heavily imply in Stephen’s case. The distinct methods and implications of the persecutions are already apparent. While the first case of Stephen the presbyter provides a grassroots denunciation working its way toward the ecclesiastical hierarchy, the second cases show the far-reaching influence of the Constantinopolitan patriarch in enforcing his orthodoxy. John thus provides a Caiaphas and a mob to condemn the Christlike miaphysite clergy. As noted above, the similarity is certainly intentional. Even in the similar punishments inflicted, the differentiation of the harsh treatment rendered to presbyters and bishops is striking; the conflict over Stephen the presbyter’s corpse contrasts somewhat sharply with Elisha’s enforced retirement. Nevertheless, John’s structure has highlighted two propositions to which these initial examples should lead us. Firstly, he stresses the possibility of the misuse of judicial mechanisms, and secondly, he proposes John Scholasticus’ predisposition to engage in such conduct.

The extraordinary presence of the emperor encourages an extraordinary narrative and outcome in John’s third case. The treatment of Stephan, bishop of Cyprus, dismisses any idea of episcopal deference. John again invokes Acts when he describes Stephan’s Pauline recovery after the violence of the excubitores (ܣܩܘܒܝܛܘܪ̈ܣ): “he revived as if from amongst the dead” (ܘܐܝܟ ܕܡܢ ܡܝ̈ܬܐ ܚܝܐ).63

HEPT, book 1, chapter 16; 16 cf. Acts 14:19.

John Scholasticus is recorded as having sent an armed force to Plataea, where Stephan had been banished, to compel him through violence to enter communion with the patriarch. Stephan’s speeches to the patriarch and the emperor in Constantinople concerning proposed reordinations reveal specific concerns. While his speech to the patriarch focuses on the theological inconsistency of reperforming sacramental baptism and ordination, his speech to the emperor relies on persuasion by canonical inaccuracy:

Woe! Christianity has died, all the statutes of the church of the Christians are corrupted (ܐܬܚܒܠܘ ܠܗܘܢ ܛܟ̈ܣܝܗ̇ ܕܥܕܬܐ ܕܟܪ̈ܝܣܛܝܢܐ ) all statutes and all canons of the church of God are confused, muddled and corrupted. What is this unlawful impiety that the priesthood of Orthodox Christians is abrogated by those who are now in power, and ordained afresh elsewhere? It has been twenty years since I, though unworthy, was ordained a bishop by the orthodox in accordance with the canons under Theodosius of Alexandria.64

Ibid.

Canonicity, or as it might be termed, legal orthodoxy, is in fact consistently a prime concern of the emperor throughout John’s writing. In this instance, John presented the emperor as utterly convinced by the arguments from the canons. Similarly, upon Theodosius of Alexandria’s death in 566, and the subsequent election of both a Chalcedonian and miaphysite successor, John did not give the emperor a partisan view on his successor, but rather affirmed the emperor’s desire for unity and canonicity in the selection of one bishop: “It was written to the king that they ordained orthodox bishops in place of the blessed Theodosius, not only one bishop, but two, and he was bitterly enraged” (ܐܬܟܬ̣ܒ ܠܡ̇ܠܟܐ ܕܐܦܝ̈ܣܩܦܐ ܐܪ̈ܬܕܟܣܘ̣ ܥܒ̣ܕܘ ܚܠܦ ܛ̇ܘܒܢܐ ܬܐܕܘܣܝܘܣ ܠܘ ܒܠܚܘܕ ܚܕ ܐܦܝܣܩܘܦܐ ܐܠܐ ܬܪ̈ܝܢ ܘܐܬ̇ܚܡܬ ܩܫ̣ܝܐܝܬ ).65

HEPT, book 1, chapter 34; 44–45.

John wanted his reader to know that the emperor held canonically correct actions in high regard.

The implications of preliminary cases

John must be allowed some licence in creating a scenario for Stephan which instantly developed a speech before the patriarch to an audience with the king. Novel 6 presents a pathway clearly ignored here, by which bishops could obtain access to the emperor only after traversing various secular and ecclesiastical bureaucracies.66

N. 6.3 (535).

The possibility of elevating an issue to a higher ‘court of appeal’ is well-established, although John’s presentation of this as an extremely dynamic process suggests an urgency not permitted by Justinianic law. Yet, the continued importance of petition to Roman government is clear. It acted not only as a means of redress for citizens, but also, as Feissel argues, “On sait que Justinien a ... considéré la pétition comme une des deux sources de sa législation en general,” and he provides Novels 2, 39, and 83 as exempla of reactive legislation.67

Denis Feissel, "Pétitions Aux Empereurs Et Formes Du Rescrit" in La Pétition En Byzance, ed. Jean Gascou Denis Feissel (Paris: Peeters, 2004), 41.

Justin probably continued the model of reactive government, and Stephan’s speech above, decrying the outrage of uncanonical reordination, was therefore probably meant to act as a public catalyst for legislation.

Justin sides wholly with the miaphysites in defence of single ordinations saying of John Scholasticus’ initiatives: “In truth, this is evil and without law and outside all the canon of the church” (ܒܫܪܪܐ ܕܒܝ̣ܫܐܝܬ ܘܕܠܐ ܢܡ̇ܘܣ̣ ܘܠܒܪ ܡܢ ܟܠܗ ܛܟܣ̣ܐ ܕܥܕܬܐ ܐ̣ܝܬܝܗ̇ ܗܕܐ̇).68

HEPT, book 1, chapter 16; 18.

We are therefore told that Stephan received a favourable ruling within a context of persecutio renovata by appealing to the canonicity of his holy orders. In his account, John has, for the time being, obscured the Christological controversy in favour of more technical questions. By temporarily dividing theological and legal orthodoxy, John enabled a miaphysite victory in an imperial context. This encourages a more nuanced approach to miaphysism as a legally defined heresy in Justin’s empire. If, as this example demonstrates, matters of ecclesiastical organization within canon law could be settled in favour of a miaphysite and against the patriarch of Constantinople, ‘the orthodox’ were defined as much in legal rulings on the canonicity of practical questions of authority and competencies as they were by doctrinal statements. Stephan had submitted to communion with the “Synodites” before this success. Nevertheless, his ordination, the matter at stake in the debate, was certainly performed by miaphysite clergy.69

HEPT, book 1, chapter 16; 17 (ܗܐ ܓܝܪ ܥܣܪ̈ܝܢ ܠܝ ܫ̈ܢܝܢ. ܕܟܕ ܠܐ ܫ̇ܘܐ ܐܢܐ ܥܒ̣ܝܕ ܐܢܐ ܡܢ ܐܪ̈ܬܕܟܘܣ ܩܢܘܢܐܝܬ ܐܦܝܣܩܦܐ̇. ܒܦܘܩܕܢܗ ܕܬܐܕܘܣܝܘܣ ܦܛܪܝܪܟܐ ܕܐ̣ܠܟ̣ܣܢܕܪܝܐ ) Given that his ordination was carried out ‘on the command of Theodosius of Alexandria’.

Including these proceedings in the Ecclesiastical History was expected to heighten the perceived injustice of a persecution against those whose orthodox credentials had been attested forensically before the highest court in the land. This case contrasts with the previous three; with the emperor as judge, and Stephen able to make his arguments which rely on his knowledge of law (his concern for statutes (ܛ̇ܟ̈ܣܝܗ) and that his ordination was carried out canonically (ܩܢܘܢܐܝܬ), John is able to claim a reasonable success for the miaphysite cause.

John’s own trial and the breakdown of due process

With his own trial, John’s treatment of the persecution moves away from the formal and orderly treatment of miaphysites in the courts. In his case, we instead see a variety of legal and quasi-legal proceedings, which, whilst needing increasingly rigorous process as they changed from extra-curial mediation to formal court proceedings, in fact degenerated in form, taking on gradually more illicit and irregular processes. It is important to stress that mediation and arbitration were usual first steps in legal disputes, due to reticence to engage in expensive court proceedings. More persuasively perhaps for the present case, extra-curial resolutions also enabled the parties both to compromise and save face. However, when litis contestatio began, correct procedure was of great importance.70 It is the cumulative effect of poor definition of the case, what John considered to be an incorrect assessment of which issues were the most serious, and fluid movement between different paradigms of legal conflict resolution that marks the chaos of his trial.

The framework is however given in advance by John Scholasticus’ behaviour in the above cases, and by his introduction as someone with no respect for the institutional processes or traditions of the church. In particular, John of Ephesus first highlights his overreach beyond his authority almost at his first mention: “and he wrote not only in his city and jurisdiction but also to foreign places” (ܘܠܘ ܒܠܚܘܕ ܕܒܡܕܝܢܬܗ ܘܒܫܘܠܛܢܗ̣ ܐܠܐ ܘܐܦ ܠܐܬܪ̈ܘܬܐ ܐܚܪ̈ܢܐ ܟܬ̇ܒ ܗܘܐ̇).71HEPT Then, he stresses the outrageous reordination of priests and deacons whose holy orders John Scholasticus had implicitly accepted beforehand when he celebrated with them on 36 occasions, we are told: “ and not one time only or twice, but even 36 times in every festival service (σύναξις)” (ܠܘ ܚܕܐ ܙܒ̣ܢ ܒܠܚܘܕ ܘܬܪ̈ܬܝܢ ܐܠܐ ܥܕܡܐ ܠܬܠܬܝܢ ܘܫܬ ܙܒ̈ܢܝܢ ܒܟܠܗܝܢ ܣܘ̈ܢܟܣܝܣ ܕܥܐܕܐ ).72HEPT In short, John Scholasticus does illicit things beyond his sphere of influence, either of which alone would be cause for concern. Moreover, these errors are portrayed as both very serious and obvious. This contrasts greatly with what John of Ephesus presented as nebulous charges brought against the miaphysites.

Given what I will argue is a deliberately chaotic set of legal proceedings, it is worth briefly outlining for the sake of clarity the events in question, and the series of disagreements and the concomitant legal proceedings to which they led. It also seems prudent to lay out in more detail the normal legal options open to a plaintiff in the 6^th century. After this, we will have the best viewpoint from which to see how John of Ephesus created his crescendo of flawed forensics. It is worth mentioning from the outset that the legal methods which will be discussed are those proper to ‘secular’ law rather than ecclesiastical law. It may therefore seem that their use here is not appropriate to the nature of the dispute, namely a matter of church order between the emperor, the patriarch of Constantinople, and a group of bishops rather than a single defendant. Nevertheless, the conclusion of the episode in a trial before the senate and a magistrate encourages us to blur the lines. Furthermore, these will be used as types not of the precise methods of restitution, but rather of the various processes which were certainly recognisable to citizens. As Steinwenter noted, there is no reason to doubt extremely close interactions between “state” and ecclesiastic legal procedure.73 John of Ephesus presented accounts of subverted mediation, arbitration, and adjudication as touchstones of legal process for his readers.

The narrative of John’s trial

The first part of the dispute between John Scholasticus and the miaphysite bishops whom he had imprisoned in Constantinople, including John of Ephesus, took the form of a letter in which the patriarch demanded that the miaphysite bishops unite themselves to the Chalcedonian church. The patriarch specified that this union should be like “the unity between Cyril of Alexandria and John of Antioch”.74HEPT The (probably abbreviated) contents of this letter, as John presented them, correspond in no way to the requirements of a formal summons. This prepares the reader for two possibilities. If legal proceedings follow, then we are already aware of the patriarch’s irregular process. Alternatively, if legal proceedings do not follow, then the patriarch’s letter signalled that dialogue and mediation were still the appropriate response. The actions of the miaphysite bishops makes more sense in this latter context. They responded with an argument that was logical rather than theological, except as a general refutation of the council of Chalcedon in an (at this point) unspecified way. Their strategy was to point out the inconsistency of them behaving like Cyril in only the manner of his communion with John of Antioch. They argued that real emulation would require them to view the council of Chalcedon as Cyril had viewed Nestorius: “and we will anathematize and repudiate and throw out the synod of Chalcedon from the Church of God, just as Cyril did to that lawless Nestorius” (ܘܐ̇ܚܪܡܢ ܘܐ̇ܦ̣ܩܢ ܘܫ̣ܕܝܢܗ̇ ܠܒܪ ܡܢ ܥܕܬܗ ܕܐܠܗܐ ܠܣܘܢܗܕܣ ܕܟܠܩܕܘܢܐ ܐܝܟ ܡܐ ܕܐܦ ܩܘܪܝܠܘܣ ܠܪܫܝ̣ܥܐ ܢܣܛܘܪܝܘܣ̣ ).75HEPT The initial posture John has the bishops adopt is combative. His presentation undermines Chalcedon by framing their first engagement not as an act of enforcement by John Scholasticus, but as a continuation of an unsettled dispute.

John’s control of the narrative develops in the following chapter. The bishops’ argument moved from the logically formal to the legalistically formal. The miaphysites challenged John Scholasticus to provide canonical support for his alleged practice of re-ordination. Knowing that this was not canonical, it is fair to say that this record represents John picking battles he knew he could win. It seems designed to move the debate from church unity or the authority of the council or patriarch, towards specific violations of church order. The initiative taken by the miaphysites in this rejoinder is surely an authorial decision. It seems very unlikely in the first place that the bishops would have been brought to dispute with John Scholasticus. For the patriarch, these miaphysite bishops were an issue of church government, not doctrine. It is impossible to imagine that John was repeating the patriarch’s own words when he said they were summoned to debate “concerning the faith and about the corruption of the synod of Chalcedon” (ܕܥܠ ܐ̈ܦܝ ܗܝܡܢܘܬܐ ܘܡܛܘܠ ܚܒ̇ܠܐ ܕܣܘܢܗܕܣ ܕܟܠܩܕܘܢܐ).76HEPT It seems equally unlikely that they would then be allowed to steer the conversation in whatever direction they should wish. In this sense, the events described have either been presented very carefully, or, at worst, might have no basis in historical fact. Nevertheless, the account given by John of Ephesus serves again to remind the reader that, for the purposes of all that will follow, the miaphysites sought to demonstrate that they held the stronger legal position, quite aside from their arguments about the patriarch’s Christological position and supposed support of a “quaternity” (ܪܒܝܥ̣ܘܬܐ).77HEPTProfession of FaithJohn of Tella’s "Profession of Faith": The Legacy of a Sixth-Century Syrian Orthodox BishopTractatus Contra Monophysitas“Οὔτε γὰρ τετάρτου προσώπου προσθήκην ἐπιδέχεται ἡ ἁγία Τριὰς ... καὶ οὐκ ἄλλον τὸν Θεὸν Λόγον καὶ ἄλλον τὸν Χριστὸν ἐπιστάμεθα, ἀλλ΄ ἕνα καὶ τὸν αὐτὸν Θεὸν Λόγον Κύριον Ἰησοῦν Χριστὸν ὁμολογοῦμεν. This first attempt by the two parties to settle their differences without a third party was unsuccessful.

After further descriptions of the lawlessness of the patriarch, John introduced the emperor’s role in their case for the first time. This takes the form of Justin submitting to the miaphysite bishops an edict of union, complete with doctrinal statements, which he apparently encouraged them to edit as they saw fit to ensure its orthodoxy. The whole episode has the character of Roman arbitration. We see a third party acting as an interlocutor between two groups, proposing and counter-proposing solutions which he hopes will satisfy both parties. Importantly, the Roman arbitrator did not act as a judge, nor were his suggestions binding, unless oaths were sworn by the two parties agreeing to the terms.78

Caroline Humfress, "Law and Legal Practice in the Age of Justinian" in The Cambridge Companion to the Age of Justinian, ed. Michael Maas (Cambridge University Press, 2005), 180. Leanne Bablitz, "Roman Courts and Private Arbitration" in The Oxford Handbook of Roman Law and Society, ed. Paul J. du Plessis, Clifford Ando, and Kaius Tuori, Oxford Handbooks (Oxford: Oxford University Press, 2016), 236.

Had his intervention been intended as the final word, it is unlikely that John and the other bishops would have been able to continue the contest in official channels. Zeno’s Henotikon, an earlier example of a joint production of emperor and patriarch, might provide an example of how the emperor could have acted if this first intervention had been meant to bind.79East and West: The Making of a Rift in the Church: From Apostolic Times until the Council of Florence, Of course, we are again dealing with John’s presentation of events. It is possible that Justin and John Scholasticus fully intended for this proposal of unity to bind the miaphysites. John nevertheless presented this as part of an ongoing discussion and negotiation.

This point is highly significant. Following the counterproposals of the Chalcedonian faction, John and his fellow miaphysite bishops were unwilling to agree to the edict.80HEPT John made what he considered the likely duplicity of the Chalcedonians the chief reason for the miaphysite refusal to agree to the new terms, and in doing so, he was keen to show that he and the other bishops had not walked away from the negotiating table.81HEPT Again, this makes sense if the episode is understood as an exercise in imperial arbitration. A willingness to remain in negotiations with ‘Synodites’ is not obviously desirable for John’s relationship with his audience unless there was something to be gained from the discussions.

Nevertheless, the bishops’ failure to agree to the edict left them open to charges by John Scholasticus that they were the obstacle to unity. This claim was pursued in the patriarchal court on unequal terms: “They faced off against one another ardently; and those of the synod held power, whilst those against the synod were imprisoned apart from them and oppressed bitterly.” (ܒܗ ܒܕܪܫܐ ܠܘܩܒܠ ܚ̈ܕܕܐ ܣ̣ܕܝܪ̈ܝܢ ܗܘܘ ܚ̇ܪܝܦܐܝܬ܇ ܗܠܝܢ ܕܣܘܢܗܕܘܣ ܕܐ̇ܚܝ̣ܕܝܢ ܫܘܠܛܢܐ܆ ܘܗܠܝܢ ܕܠܘܩܒܠ ܣܘܢܗܕܘܣ ܕܚܒܝܫܝܢ ܗܘܘ ܡܢܗܘܢ ܘܐܠܝ̣ܨܝܢ ܡ̇ܪܝܪܐܝܬ).82HEPT This process was in turn the main reason for the eventual acquiescence of the miaphysite bishops to communicating with the patriarch. Overall, we can characterize the first part of John’s own trial, up to the point of his communicating with John Scholasticus, in two legal frameworks. The first is a process of negotiation, or arbitration initiated by Justin. Insofar as both sides agreed to the emperor’s arbitration of the dispute, they were bound to accept what he decided. The second intrudes irregularly onto the narrative, in that, rather than following through with the working out the arbitration, the process was transferred into the court (σέκρετον) of John Scholasticus (ܠܣܝ̣ܩܪܝܛܘܢ ܕܦܛܪܝܪܟܐ) all whilst the miaphysite bishops were imprisoned.83 This is surely deliberately reminiscent of the trial in absentia of Dioscorus at the third session of Chalcedon.84

The second part of John’s trial saw an unexpected return from the patriarch’s court to the former, extra-curial process highlighted above. A personal letter from the emperor to the miaphysite bishops in captivity aimed at reconciling the mutual excommunications created another situation like the Roman process of mediation. John reported that the emperor wrote that “We think in God we are doing that which should content you, and putting you in perfect unity” (ܡܣ̇ܒܪܝܢܢ ܓܝܪ ܒܐܠܗܐ̣ ܕܢܝ̇ܚܟܘܢ ܥ̇ܒܕܝܢ ܚܢ̣ܢ ܘܒܚܕܝܘܬܐ ܡ̇ܫܡ̣ܠܝܬܐ ܡܚ̇ܝܕܝܢܢ ܠܟܘܢ ).85

HEPT, book 1, chapter 26; 36.

Nevertheless, more than in the first instance, the tone of the letter suggests that Justin imagined his input would have been, or at least should have been, decisive in mending the schism. However, the planned mediation was prevented by the imperial couple’s month-long retirement to the baths, after which the Patriarch John “led the counsellors and went out to meet him” (ܕܒܪ ܒܢ̈ܝ ܡܠܟ̣ܗ̣ ܘܢܦܩ ܠܘܬܗ).86

HEPT, book 1, chapter 27; 37.

The mediation was therefore flawed due to the unequal access of the two parties to the mediator. John also suggested that a lack of political will could be blamed for giving the Chalcedonian party free rein over the situation, and an unequal footing in the proceedings. However, the unexpected return to this more casual, or at least open-ended discussion between the emperor and the parties might be a literary creation, intended to make the issue seem rather less closed. John himself wrote that some may think his account far-fetched.87HEPT Had John written in Greek, the similarity between Justin’s desire for unity (ܚܕܝܘܬܐ), and the at least comparably favourable Henotikon would be more obvious.

Beyond John’s clear intention in providing the emperor Justin with a less than pressing prior arrangement at the baths, contrasting sharply with the plight of the imprisoned bishops, the significance of John’s presentation of events is twofold. The emperor undermined the process of mediation by proceeding to act immediately on the advice of only one of the parties which had the freedom to approach him, and more strikingly, his role in the proceedings shifted quickly to the distinct position of adjudicator. Justin’s next step in summoning the two parties before the senate and a magistrate (the quaestor) as iudices, (ܣ̣ܘܢܩܠܝܛܘܣ ܥܡ ܩ̣ܐܣܛܘܪ) marks the beginning of formal litigation after ineffectual and half-hearted attempts at an extra-curial solution.88

HEPT, book 1, chapter 29; 39.

It is also importantly distinct from John Scholasticus’ ecclesiastical court. Whereas this second mediation or possible imperial arbitration was a bargaining process, seeking a compromise between the two parties, adjudication and the subsequent iudicium decided unreservedly for either party. John’s inclusion of the earlier deceit of the Chalcedonians in enticing the miaphysite bishops to communion aims to demonstrate why prima facie the move to the public proceedings of the adjudication was preferable. Under the formal litis contestatio, the process would be public and open to scrutiny. The underhanded machinations attributed to the Chalcedonians by John would not be possible in such circumstances. We have been led to expect by John’s focus on canonicity that, if properly conducted, formal and thorough legal proceedings would favour the miaphysites.

Given however that in the present case the senate decided wholeheartedly against the miaphysites, John sought to undermine this public and binding iudicium by recording irregularities in the process. Not only does John present the legal status of the case in rapid flux from the earlier arbitration and mediation to adjudication, but the order of the trial itself is challenged. Firstly, there is no anticipation of an opportunity for dispute “since they were besought [to comply] as if by command” (ܟܕ ܡܬ̇ܬܒܥܝܢ ܐܝܟ ܕܡܢ ܦܘܩܕܢܐ). The result of the trial is the first business announced. This contrasts starkly with Eusebius of Dorylaeum’s formal indictment of Eutyches before Flavian in 448 which begins with a clear charge: “Not long ago, I came to your Holiness and brought charges accusing Eutyches, that he, as presbyter and archimandrite of this city, was ruining the doctrines of the orthodox church, as much by way of informal conversations as in his formal catechesis of those who came to him.”89

ACO 2. 1. 1, Chalcedon, 238, “Προσελθὼν τῆι ὑμετέραι ἁγιωσύνηι λιβέλλους έπιδέδωκα πρώην αἰτιώμενος Εὐτυχῆ τὸν πρεσβύτερον καὶ άρχιμανδρίτην ταυτησὶ τῆς πόλεως ὡς τὰ ὀρθόδοξα δόγματα τῆς ἐκκλησίας διαφθείροντα, τοῦτο μὲν ἐν διαλέξεσιν, τοῦτο δὲ καὶ ἐν κατηχήσεσιν τῶν ἐκεῖ παρατυγχανόντων”.

John presented his own trial as summarily conducted.

Secondly, John shows that his party came prepared for a real trial, and thus presented the miaphysite half of a case following due process, making sure meanwhile to point out the deceitfulness of the opposition: “But [the miaphysites] arose and contended in disputation (ἀγών) forcefully … and without fear they openly accused all of them of false promises” (ܗ̇ܝ ܕܝܢ ܗ̣ܢܘܢ ܩܡ̣ܘ ܘܐܬ̇ܟܬܫܘ ܒܐܓܘܢܐ ܚܝܠܬܢܐܝܬ ... ܘܕܠܐ ܕܚ̣ܠܬܐ ܐ̇ܟܣܘ ܓܠܝܐܝܬ ܥܠ ܟܠܗܘܢ ܫܘ̈ܘ݁ܕܝܐ ܕܢܟܠܐ).90HEPT Not only are their accusations performed openly (ܓܠܝܐܝܬ), contrasting with the earlier clandestine activity of the Chalcedonians, but the forceful manner (ܚܝܠܬܢܐܝܬ) of their arguments contrasts with the violent removal of the bishops from court: “they ordered that they should be violently dragged from before them” (ܘܦܩܕܘܢ ܕܒܓܪܪܐ ܢܦ̇ܩܘܢ ܐܢܘܢ ܡܢ ܩܕܡܝܗܘܢ̇). This court room violence provides a third point of judicial irregularity. The confused legal process and the following show trial create overwhelming sympathy for the miaphysite position. However, this incident equally forms part of John’s presentation of eschatology, for the author himself has been brought before “governors and kings for my sake”.91 The clear schematic of imperial judge, miaphysite defendant, and Chalcedonian prosecutor which was evident in the first three cases has given way to a foiled mediation, patriarchal machinations, and an unjust trial. The movement from order to chaos is striking.

The rest of John’s extant history moves away from the specifically forensic scenes treated above. It is reasonable to suppose that this change of focus is a deliberate choice as John moves from a Roman and ecclesiastical context, to first the treatment of lay miaphysites, and then persecution outside the empire under the Sassanians. With the guise of legality cast off, future clerical persecutions would make no claims to any kind of legal process. The cupidity and overreach of John Scholasticus still loom large in the narrative, but the persecution of the priests Andrew and two Sergii was mob action undertaken through treachery and violence “in the likeness of Judas” (ܒܕܡܘܬܗ ܕܝܗܘܕܐ).92HEPT, The account of the Sassanian persecution which follows is notable because it lays the blame for the occurrences in Persia directly on the irregular Roman example:

When the Magians and princes of the Persians learnt that by the commandment and will of the king of the Romans, all persons, in every land and city of his dominions, were required to conform themselves and come over to his faith; and that such as refused and were disobedient to his will and commandment, were by his orders persecuted and imprisoned, and their goods spoiled, and finally delivered up even to death; ‘lo!’ said they, ‘in all the dominions of the Romans these things are now being done, and it is but just for us also to do the same in all our dominions, and convert to our own religion all other religions within our realm’.93HEPT

It is surely an attack on the institutional propriety of the Roman actions to appose so closely the persecutorial actions of the Persian king. Roman judges sat like Christians, but in practice had judged the servants of God in an exemplary manner for Persian pagans.

Conclusion

John’s carefully structured presentation of trials, law, and lawlessness in the Ecclesiastical History serves principally to undermine the practice of these once sure determiners of orthodoxy and justify the miaphysite position outside the legal orthodoxy of the Chalcedonian Church. He employs a Biblical eschatological decline narrative as special pleading for a group which found itself on the wrong side of the institutions which had come to hold central importance in defining orthodoxy. By his presentation of events in order of their legal irregularity rather than strict chronology, John causes his reader to focus on the institutional errors of the Chalcedonian church. He thereby systematically undermined the intention, the process, and the outcome of the legal proceedings against the miaphysites to exculpate himself and his co-confessionalists. The glimmer of hope and imperial indulgence of the earliest trials demonstrate John’s belief that forensic orthodoxy, if undertaken correctly and pervaded with truth, could deliver for the miaphysites. In all the above cases, there is a marked absence of supernatural assistance for the miaphysites. The stress on the institutional validity of his miaphysite position (if only by contrast with the lawlessness of the Chalcedonians) serves to make the Ecclesiastical History a companion volume to the charismatic authority of holy men in his Lives of the Eastern Saints. In order to demonstrate this institutional authority, John of Ephesus was compelled to demonstrate fraud, lawlessness, and wilfulness in the process of the Chalcedonians. In the legal-ecclesiastical environment of the 6^th century, a demonstration of flawed forensics was the most viable challenge to John Scholasticus and Eutychius in their imperially sanctioned enforcement of union.