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Published online by Cambridge University Press: 21 March 2016
In exile in a remote and desolate place, Nestorius was still bitter about the Council of Ephesus (AD 431) some twenty years after the event. He remembered it as a travesty of a tribunal: ‘I was summoned by Cyril, who had assembled the Council […]. Who was judge? Cyril. Who was the accuser? Cyril. […]. Cyril was everything.’ In view of his condemnation, and in identifying Cyril’s activities on the occasion with roles usually played out in a court case, Nestorius recognized the basic pattern of proceedings of the council as that of a trial. Yet, in taking over all the major roles in such a trial simultaneously, Cyril had made a mockery of all proper judicial procedure. Minimum standards of proper procedure had been violated, and Nestorius, in his outburst against Cyril’s misconduct, expects his audience to recognize the fact and share his expectations of due process. However, his frustration with the council runs deeper than a mere dispute over correct procedure. Nestorius is even more deeply angered by the apparent lack of proper examination of his theology. Even if he is not explicit on the point, it seems obvious that he had expected the council to be something altogether different from a trial, something more closely resembling a philosophical dialogue or substantive doctrinal debate. In fact, the emperor’s letter of invitation had expressed a similar expectation, in that it had called for an open-ended discussion of theological difficulties and admonished the participants of the council to aim for an amicable consensus.
1 Nestorius, Bazaar of Heracleides, 2.1 (ed. Bedjan, R. P. and Nau, F., Le Livre d’Héraclide de Damas [Paris, 1910], 195 Google Scholar; trans, in Drivers, G. R and Hodgson, L., The Bazaar of Heracleides [Oxford, 1925], 132)Google Scholar. In the same context Nestorius repeats that Cyril acted as ‘persecutor’, ‘accuser, emperor and judge’, and even assumed the role of the ‘bishop of Rome’ (ibid.).
2 Nestorius’s lengthy exposition of the council’s many failures ultimately aims to show how Cyril’s doctrinal stance was wrong and how it had been imposed on the council by his underhand usurpation of all the leading roles.
3 Theodosius II, Sacra ad synodum, Collectio Vaticana 31 (ed. Schwartz, E., Acta conciliorum oecumenicorum, Vol 1.1.1-7 [Berlin 1927–29], 1.1.1: 120) [hereafter: ACO]Google Scholar.
4 Gaudemet, Compare J., L’Église dans l’Empire romain: IVe-Ve siècles, Histoire du droit et des institutions de l’Église en Occident 3 (Paris, 1958; 2nd edn, 1989)Google Scholar; Girardet, K. M., Kaisergericht uni Bischofsgericht: Studien zu den Anfängen des Donatistenstreites (313–315) und zum Prozeβ des Athanasius von Alexandrien (328–346), Antiquitas, Reihe 1.21 (Bonn, 1975)Google Scholar.
5 Steinwenter, A., ‘Der antike kirchliche Rechtsgang und seine Quellen’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 23 (1934), 1–116 CrossRefGoogle Scholar. The extent to which court hearings could become a predominant task of episcopal administration is also illustrated by Lamoreaux, J. C., ‘Episcopal Courts in Late Antiquity’, Journal of Early Christian Studies 3 (1995), 143–67 CrossRefGoogle Scholar. His examples clearly show that some familiarity with legal reasoning and procedure can be expected even with those bishops who lacked formal juri dical training.
6 The exception is the trial of Eutyches before the ‘synodos endemousa’ of Constantinople in AD 448, which is the topic of two substantial studies: E. Schwartz, Der Prozeβ des Eutyches, Sitzungsberichte der Bayerischen Akademie der Wissenschaften, phil.-hist. Abt., 1929, Heft 5 (Munich, 1929); G. May, ‘Das Lehrverfahren gegen Eutyches im November des Jahres 448: zur Vorgeschichte des Konzils von Chalkedon’, Annuarium Historiae Conciliorum 21 (1989), 1–61. It is important to note that the case of Eutyches was a trial of a cleric of inferior rank before a synod of bishops. The hierarchical implications of this constellation caution against an indiscriminate comparison with the cases of Nestorius and Palladius at Ephesus and Aquileia.
7 Humfress, C., ‘Forensic Practice and the Development of Roman and Ecclesiastical Law in Late Antiquity, with Special Reference to the Prosecution of Heresy’, unpublished Ph.D. thesis, University of Cambridge, 1999; on councils, see esp. 178–83.Google Scholar
8 Berger, A., Encyclopedic Dictionary of Roman Law, American Philosophical Society, Transactions, ns 43.2 (Philadelphia, PA, 1953 Google Scholar), svv. cognitio and cognitio extra ordinem (extraordinaria), 393–4. For the main features of a cognitio (extra ordinem) cf. n. 14 below.
9 Perhaps unsurprisingly, therefore, it was the role of the ‘president’ Cyril which agitated Nestorius about Ephesus. And it is equally the role of Ambrose, the de facto president at Aquileia, which is the focus of much criticism of what happened there.
10 The imperial rescript, quoted in Acta concillii Aquileiensis, ed. M. Zelzer, CSEL 82.3 (Vienna, 1982) [heraften/Acta], 325–68, alludes to Gratian’s original sentiment at 328. For the history of the council in general, and the events leading up to it, see Gryson, R., Scholies Ariennes sur le concile d’Aquile, SC 267 (Paris, 1980)Google Scholar, esp. introduction, 121–43; note however the comments by Duval, Y.-M., ‘La presentation arienne du concile d’Aquilée de 381: à propos des ‘Scolies ariennes sur le concile d’Aquilée’, Revue d’histoire ecclésiastique 76 (1981), 317–31 Google Scholar; cf. further Gottlieb, G., ‘Das Konzil von Aquileia (381)’, Annuarium Historiae Conciliorum 11 (1979), 287–306 Google Scholar; McLynn, N. B., Ambrose of Milan: Church and Court in a Christian Capital, The Transformation of the Classical Heritage 22 (Berkeley, CA and London, 1994), 124–37 Google Scholar; Campenhausen, H. v., Ambrosius von Mailand als Kirchenpolitiker, Arbeiten zur Kirchengeschichte 12 (Berlin, 1929), 61–80 CrossRefGoogle Scholar; Williams, D. H., Ambrose of Milan and the End of the Arian-Nicene Conflicts, Oxford Early Christian Studies (Oxford, 1995), 157–84.Google Scholar
11 Gratian, rescriptum = Acta, 4 (CSEL 82.3, 328: [lines] 31–7); cf. McLynn, Ambrose, 125. That Gratian and Theodosius acted not so much in consonance as in competition is pointed out by Duval, La presentation, 326.
12 Acta, 4 (CSEL 82.3, 328: 29–31): ‘Neque sane nunc aliter iubemus ac iussimus on invertentes praecepti tenorem …’
13 Palladius, bishop of Ratiaria (Arčar) and Secundianus, bishop of Singidunum (Belgrade) were the only two Homoian prelates who attended the synod and were eventually deposed. Little is known of the two apart from their involvement with the council and its preparation. For Palladius, cf. E. Hoffmann-Aleith, ‘Palladios (6)’, in A. Pauly, G. Wissowa et al., Realencyclopädie der classischen Altertumswissenschaft 36.3 (Stuttgart, 1949), cols. 207–9. My analysis concentrates on the council’s dealings with Palladius; the subsequent interrogation of Secundianus (Acta, 65–75) commences along similar lines, but the protocol ends abruptly after only a few exchanges.
14 For the main features of a cognitio, see Berger, A., Nicholas, B. and Lintott, A. W., ‘Law and Procedure, Roman, 3: Criminal Law and Procedure’, Oxford Classical Dictionary (3rd edn, Oxford, 1996), 831–4 Google Scholar, and Kaser, M., Dos römische Zivilprozeβrecht, 2. Aufl. neu bearb. von K. Hackl, Handbuch der Altertumswissenschaft 10, Rechtgeschichte des Altertums 3.4 (Munich, 1996)Google Scholar.
15 For a reconstruction of the event as an ecclesiastical cognitio, cf. H. J. Sieben, Die Konzilsidee der Alten Kirche, Konziliengeschichte, Reihe B: Untersuchungen (Paderborn, 1979), 482–9. Despite Ambrose’s domineering role, formally the local bishop and metropolitan of the province, Valerian, was president of the assembly.
16 As is evident from the very start of the minutes, Acta, 2 (CSEL 82.3, 327).
17 Palladius’s account of events survives, in fragments, as part of his Apologia, written not long after the synod and apparently still in the hope of reversing its decisions: Palladius, Apologia (SC 267, 264–365). See also McLynn, N. B., ‘The “Apology” of Palladius: Nature and Purpose’, Journal of Theological Studies 42 (1991), 52–76.CrossRefGoogle Scholar
18 Acta, 12 (CSEL 82.3, 333). He accuses Ambrose of subverting (subripere) the Emperor’s wishes; Acta, 10(331:94).
19 Acta, 2 (CSEL 82.3, 327: 9–10); 5 (329: 46–7); 43 (353: 579–81); Palladius, Apologia, 90; 92(337126–32; 338145;SC 267, 276, 278). Several further mentions of Arius in Apologia, 95–6 also seem to relate to the unofficial preliminary discussions which were not minuted. The letter in question is a translated Latin version of Arius, Epistula ad Alexandrum episcopum in H. G. Opitz, ed., Urkunden zur Geschichte des Arianischen Streits, Athanasius Werke 3.1 (Berlin 1935), 12–13.
20 Acta, 5 (CSEL 82.3, 329: 48–52); cf. 11 (332: 107–9); 12 (333: 135–6); see also, at a much later point, Ambrose’s repeated insistence on this alternative 47 (355: 632).
21 The debate about the legitimacy of the council (in particular Acta, 6–12) is never really settled, and Palladius repeatedly returns to the question, cf. for example Acta, 32 (CSEL 82.3, 345: 408–10); 42 (352: 558–60); 43 (353: 586). Protesting its lack of authority, Palladius time and again refuses to answer the questions put to him, Acta, 9 (330: 80); 14 (334: 162–3); 29 (343: 365–6); 48 (355: 637–8), and frequently, so as not to prejudice a general council: Acta, 11(332: 12–13); 12(333: 138–40); cf. 6 (329: 53–5).
22 Palladius repeatedly asserts this point: Acta, 14 (CSEL 82.3, 334: 158); 31 (344: 389–90); cf. also, claiming a substantive disagreement, Acta, 25 (341: 313); Acta, 41–2 (351: 546–52) he again refuses to be drawn on Arius.
23 Acta, 19–25 (CSEL 82.3, 338–41). He tries again, without much success, to involve Ambrose in discussion Acta, 33–6 (346–8), but becomes entangled in the wording of a biblical quotation for which he is immediately censured as falsifying Scripture.
24 Hanson, R. P. C., The Search for the Christian Doctrine of God: the Arian Controversy 318–381 (Edinburgh, 1988), 109–10 Google Scholar. Compare his assessment of Ambrose’s behaviour at Aquileia in general (667–9) and the scathing criticism of the theology of De fide (669–75), which had been composed before the council. Palladius had prepared a dossier based on this treatise and intended to refute Ambrose from it. However, he did not bring it to the meeting that turned into a trial deposing him. His motion to adjourn, giving him the chance to equip himself with it, was dismissed (Acta, 50 [CSEL 82.3, 356:659-60]). Parts of his compilation of Ambrosian ‘errors’, with critical comments, survive in Apologia, 81–7 (SC 267, 264–74).
25 For such an assessment, see McLynn, Ambrose, 136–7. Lim, R., Public Disputation, Power, and Social Order in Late Antiquity, The Transformation of the Classical Heritage 23 (Berkeley, CA, 1995)Google Scholar, notes the widespread misgivings against ‘debate’ in principle at the time (see, in particular, 195, 197–8 for restriction of debate at Aquileia). The demand of Palladius to answer ‘in simplicity’ (cf. Acta, 9 [CSEL 82.3, 331: 83–6]) is used by McLynn to illustrate the sentiment (197–8). However, this admonition is concerned with his denial to condemn unambiguously those phrases by Arius which were put to him. Primarily his refusal to answer is reprimanded here, not so much his demand for debate.
26 Compare Theodosian Code, 16.5.6.1; 16.5.8.
27 Acta, 54 (Valerianus): … qui Arrium defendit Arrianus est … (CSEL 82.3, 359: 712–13); 55 (Anemius): Quicumque haereses Arrianas non condemnat Arrianus sit necesse est (359: 718–19). The association with Arius is pointed out by virtually all bishops subse quently casting their vote as sufficient grounds for his condemnation (Acta, 55–64); only Theodoras (62) and Ianuarius (64) fail to mention it.
28 This is clearly indicated by the lack of information evident in Ambrose, Epistola extra collectionem 6 (CSEL 82.3, 186–90), written in Aquileia after the meeting of 3 September 381.
29 The council’s letter, Epistula 2.12 (CSEL 82.3, 324: 136), is generally taken to refer to this law and seems to suggest Gratian’s publicizing it; see Zelzer’s apparatus, ad locum. However, the censuring of Photinians mentioned there, could equally refer to their exemption from Gratian’s earlier edict of toleration, probably of AD 379 (Socrates, Historia ecclesiastica, 5.2.1). Gratian’s sponsorship for the Nicene faith from the outset of his reign has long been taken for granted, but is now mostly considered with scepticism and barely suffices to presuppose explicitly anti-Arian legislation in his early years and prior to the council.
30 A. de Halleux, ‘La première session du concile d’Éphèse (22 Juin 431)’, Ephemerides Theologicae Lovanienses 69 (1993), 48–87. The legal analysis provided by de Halleux in particular hopes to avoid the speculations into the psychology of the main protagonists, the pitfalls of taking at face value what is rhetorical self-presentation, and suspicions of secretive plotting, all rightly perceived to be problematic methodically. However, once the need to establish the legitimacy of the undertaking with the imperial court is accepted, rhetoric and self-presentation become once again necessary considerations in the interpretation of the acts.
31 See n. 1 above.
32 Gesta, 39–42 (ACO, 1.1.2:9-12).
33 Gesta, 41.3 (ACO, 1.1.2: 11).
34 Gesta, 43 (ACO, 1.1.2: 12, 23). Pace de Halleux who believes that Juvenal tried to justify the subsequent reading of the Nicene Creed as the ‘legal basis’ of the inquiry, ‘La première session’, 73); Juvenal attempts to establish the legitimacy to begin the inquiry as such, not any specific form of, or step in it. For a trial in absence, see Steinwenter, Rechtsgang, 05–75.
35 Cyril, Epistula ad Nestorium 2, Gesta, 44 (ACO, 1.1.2: 13).
36 Gesta, 45 (ACO, 1.1.2: 13–31), lists 126 statements.
37 Nestorius, Epistula 2 ad Cyrillum, read and voted upon Gesta, 46–7 (ACO, 1.1.2: 31–5).
38 Caelestin, Epistula 11: read Gesta, 49 (ACO, 1.1.2: 36). Lim, Public Disputation, 222–3, also notes that subsequent deliberations do not add anything to the decision already reached.
39 Gesta, 50 (ACO, 1.1.2: 37); Gesta, 51–3 (37–8).
40 Gesta, 54; excerpts from Nestorian texts follow Gesta, 60 (ACO, 1.1.2: 45–52). For a detailed analysis of this part of the proceedings and their presentation in the acts, cf. my Die Kirche der Väter, Vätertheologie und Välerbeweis in den Kirchen des Ostens bis zum Konzil von Ephesus (431), Beiträge zur historischen Theologie 118 (Tübingen, 2002), 385–93.
41 Gesta, 61 (ACO, 1.1.2: 54, 16–25) notes the verdict, signed by 197 bishops: Gesta, 62 (55–64).
42 Compare de Halleux, ‘La première session’, 78–9. This late in the process, after two rounds of evidence both of which had already established the ‘heresy’, a list of quotations functioning as ‘accusation’ is at least misplaced, if not redundant. Furthermore, the form and content of the extracts do not readily serve this purpose either. The closest we come to a direct contradiction of Nestorian terminology are some quotations that make use of the term ‘theolokos’. It is telling for the lack of real legal import that the acts do not introduce the ‘reading’ of patristic extracts with any sense of purpose at all.
43 The relevant documents are discussed in my Kirche der Väler, 393—8.
44 See Schwartz, ACO, 1.1.2:45, apparatus ad locum.
45 See n. 3 above.
