Last week we discussed the Roman Catholic argument from the events leading up to and surrounding the Council of Sardica in 343 A.D.—particularly the claim that “pope” Julius of Rome asserted papal primacy in his letter to the Eusebian party at Antioch, as well as the claim that the Council of Sardica confirmed it. As we showed last week, Julius actually denied papal and Roman primacy, and rebuked the appellants in Antioch for writing to him alone when they should have written “to us all” so that “all” could render a decision together. Their failure to write to everyone (instead of Rome alone) was a violation of Church canon.

When Julius then insisted that the Antiochian party should have “written first to us” in accordance with custom, it has been taken to be an assertion of papal and Roman primacy. But as Julius had already stated, the Eusebian party had written to him first, asking him to call a council, and Julius had written back to them in the capacity of an appellate judge seeking additional information on the case. They ignored his inquiry and proceeded to take the matter up directly with the Emperor, in violation of Constantine’s recent judicial reforms. The custom they violated was not that of writing to Rome first, but rather a custom of requesting an appeal, and then cooperating with the appellate court and allowing the appeals process to have its way before taking the matter before the Emperor. The Eusebians had essentially ignored Julius’ subpoena, and had repeatedly taken the matter before the Imperial Court while he was still trying to gather evidence from both parties to the dispute. That was the violation of custom.

The result of the ensuing confusion was that the bishops of Italy had to render a decision on the matter at the Council of Rome (342 A.D.) without the participation of one of the parties to the dispute. Therefore another council had to be called, and the decision that had been rendered by fifty bishops in Rome was then subjected to the scrutiny of three hundred bishops under the presidency of a Spanish bishop, not a Roman one, in Sardica. When understood in the context of a recently implemented Constantinian process of appeals, it is not the primacy of Rome that emerges from the Council of Sardica, but rather the primacy of a Constantinian judicial process in which “pope” Julius is seen as the judge of a lower appellate court, and bishop Hosius of Spain is seen as the judge of a higher one—the Emperor, of course, being the final arbiter.

The inadequacy of the Roman Catholic position on Sardica, essentially, is that it divorces the Council and its communications from their historical context in which the church was attempting—and failing—to comply with Constantine’s appellate reforms. Because of the confusion, the most brilliant legal mind of the day, and a personal friend and confidant of Constantine, had to be called in to sort things out: bishop Hosius of Spain.

This week we will examine the imperial pedigree of bishop Hosius and his role in enforcing the Emperor’s judicial reforms, and his influence in canonizing those Constantinian judicial reforms in the Church.  As we shall find, bishop Hosius had been working closely with Constantine since the earliest days of his administration as Emperor, was practically an official of the Imperial Court, and was highly esteemed and trusted not only by Constantine, but by his sons, as well. Constantine had been acclaimed emperor in 306 A.D. at the age of 34. Hosius by then was 51 years old. Senior in years, but a deputy in function, Hosius’ brilliant legal mind would have been a valuable resource to Constantine on matters both civil and ecclesiastical.

Early in the days of his reign, when he was just beginning to implement judicial reform, Constantine multiplied the number of imperial officials who were empowered to hear and judge legal disputes throughout the empire. By empowering these officials, Constantine was making his justice system more and more accessible to more and more of his citizens. For this information we will rely heavily on John Noël Dillon’s exhaustive work on the intricacies and extent of Constantine’s judicial reforms. Dillon writes,

“Constantine had multiplied his authority and put himself, so to speak, within the reach of far more of his subjects than ever before. The power of these officials to hear provincial disputes was not exhausted in their competence as judges … They were further charged to receive complaints and accusations leveled at lesser officials, above all against provincial governors.  … Constantine amplified his voice and communicated power to his subjects through the officials vested with his authority.” (Dillon, John Noël The Justice of Constantine: Law, Communication, and Control. (Ann Arbor:  University of Michigan Press, (2012) 254)

These officials, situated as they were throughout the empire, were empowered to exercise judgment on behalf of the Emperor. In addition, there were also emissaries, itinerant officials vested with the same power. They sat as officials of Constantine’s imperial court from which they were dispatched on missions, and were authorized to hear cases and then report their findings back to the court:

“Further officials frequently dispatched from the imperial court constituted another safeguard. These men traversed the empire on special missions, kept watch on suspect administrators, and fed information directly to the emperor.” (Dillon, 254)

It is in a similar role that we first encounter Hosius of Spain. Before the council of Nicæa, when bishop Alexander was first disputing with Arius, Constantine sent bishop Hosius to Alexandria in 324 A.D. to implore them to be reconciled. By now, Constantine is 52 years of age, and Hosius is 69. As Socrates Scholasticus relates to us, Constantine loved and respected Hosius deeply, and commissioned him to attend to the dispute in Alexandria because Hosius was certainly equal to the task:

“When the emperor was made acquainted with these disorders, he was very deeply grieved; and regarding the matter as a personal misfortune, immediately exerted himself to extinguish the conflagration which had been kindled, and sent a letter to Alexander and Arius by a trustworthy person named Hosius, who was bishop of Cordova, in Spain. The emperor greatly loved this man and held him in the highest estimation.” (Socrates Scholasticus, Ecclesiastical History, Book I, Chapter 7)

Upon his arrival in Alexandria, “Father Hosius” presided at the deposition of Ischyras, one of the witnesses for the Arian faction. (Athanasius, Apologia contra Arianos, Part II, chapter 6, paragraph 74). When another collaborator was found to have taken the office of bishop unlawfully, he was ordered by Hosius to step down:

“Presbyter Colluthus … pretended to the Episcopate, and was afterwards ordered by a whole Council, by Hosius and the Bishops that were with him, to take the place of a Presbyter, as he was before;” (Athanasius, Apologia contra Arianos, Part II, chapter 6, paragraph 74)

Hosius, it would seem, had been authorized by Constantine to get to Alexandria and straighten things out. His actions upon arrival in Alexandria are those of an official delegate of the Emperor himself. His authority to act in this capacity was unquestioned. Hosius spoke and people obeyed.

When Socrates then relates the history of the Council of Nicæa the next year, he cites Church historian, Eusebius, who first mentions by region the expansive geographic representation at the council. But when it came to the man Hosius, a special notice is taken of him:

“Syrians and Cilicians, Phœnicians, Arabs and Palestinians, … Egyptians, Thebans, Libyans, and those who came from Mesopotamia. …  Pontus also and Galatia, Pamphylia, Cappadocia, Asia and Phrygia, supplied those who were most distinguished among them. … Thracians and Macedonians, Achaians and Epirots … and even those who dwelt still further away than these, and the most celebrated of the Spaniards himself took his seat among the rest.” (Socrates Scholasticus, Ecclesiastical History, Book I, Chapter 7)

Hosius, as we see, was no minor player in the Church and he was no minor player in the administration of the Empire, either. As a dear friend of the Emperor and a highly respected bishop, he is known to have held considerable sway.  Small wonder that when Athanasius was taking refuge in Rome from the Arians, Emperor Constans summoned him to Milan and from there directed him to Gaul to fetch Hosius. His assignment was to find Hosius, now 88 years of age, and procure his services as president of the Council of Sardica where the matter would be finally resolved. Athanasius relates this to us in his letter to Emperor Constantius:

“Accordingly I went down to Milan, and met with great kindness from him [Emperor Constans]; for he condescended to see me, and to say that he had dispatched letters to you [Emperor Constantius], requesting that a Council might be called. And while I remained in that city, he sent for me again into Gaul (for the father Hosius was going there), that we might travel from thence to Sardica.” (Athanasius, Apologia ad Constantium, paragraph 4)

So widely was Hosius acknowledged as the most respected bishop of the empire—even above the bishop of Rome—that he is repeatedly identified as “the father,” and in the aftermath of Sardica, the Arians believed that they could never truly have the victory unless Hosius was eliminated. By then, in 355 A.D., Hosius was “now a hundred years old” (Athanasius, History of the Arians, Part VI, chapter 45), and the Arians still saw him as the chief threat against their cause. Here Athanasius testifies of the brilliant legal mind of Hosius, and the degree to which he was loved and respected by the church, and feared by the church’s enemies:

“But although they [the Arians] had done all this, yet these impious men thought they had accomplished nothing, so long as the great Hosius escaped their wicked machinations. And now they undertook to extend their fury to that great old man. They felt no shame at the thought that he is the father of the Bishops; they regarded not that he had been a Confessor ; they reverenced not the length of his Episcopate, in which he had continued more than sixty years; but they set aside everything, and looked only to the interests of their heresy, as being of a truth such as neither fear God, nor regard man. [Luke 18:2] Accordingly they went to Constantius, and again employed such arguments as the following:

‘We have done everything; we have banished the Bishop of the Romans; and before him a very great number of other Bishops, and have filled every place with alarm. But these strong measures of yours are as nothing to us, nor is our success at all more secure, so long as Hosius remains. While he is in his own place, the rest also continue in their Churches, for he is able by his arguments and his faith to persuade all men against us. He is the president of Councils, and his letters are everywhere attended to. He it was who put forth the Nicene Confession, and proclaimed everywhere that the Arians were heretics. If therefore he is suffered to remain, the banishment of the rest is of no avail, for our heresy will be destroyed. Begin then to persecute him also and spare him not, ancient as he is. Our heresy knows not to honour even the hoary hairs of the aged.’ ” (Athanasius, History of the Arians, Part VI, chapter 45)

Even after the banishment of the bishop of Rome, the ‘error’ of Christianity could not be finally suppressed until “the father” Hosius himself was removed from his seat in Cordova. Hosius, “the father of the Bishops” was able “to pursuade all men against us … and his letters are everywhere attended to.” So long as Hosius remains, “our heresy will be destroyed.” What left is there to say of such an episcopate as that of Hosius?

“All hail Hispania, the strong central episcopate of the early church!” etc., etc.,…

But we digress.

Our point here is simply that Hosius was a man of some remarkable intellectual means, and his expansive influence in the empire was recognized in both civil and ecclesiastical domains. His credentials as a jurist were impeccable. By the time he was called to Sardica, he had served the church and the empire in that capacity for half a century.

We take special notice, therefore, of his service to the emperor and the canons that he decreed at Sardica, and because of their significance, two canons in particular: Canon 7 and Canon 11. In these two canons, Hosius enshrined for the church the two most foundational principles of Constantine’s reformed judiciary: the integrity and the independence of the appeals process.

Canon 7: The Integrity of the Appeals Process

As Dillon notices in his excellent work, The Justice of Constantine, the whole purpose of Constantine’s appellate reforms was to increase accessibility to the justice system without burdening the Emperor with too many appeals:

“The changes introduced to the appellate jurisdiction relieved the emperor of the burden of a multitude of complaints yet permitted him to claim ultimate responsibility for the success of the system.” (Dillon, 215)

Clearly the purpose of the appeal system was not so that every trivial disagreement or municipal dispute could be argued before the Emperor. In fact, the appeals process was implemented to prevent that very thing. Early in his reign, Constantine chided an officer for too readily resorting to the Imperial Court for trifling matters that he should have been able to handle himself:

“You should consult Our Majesty on few matters that cannot be decided by a legal ruling, so you do not interrupt Our other business, for there remains to litigants the appropriate legal choice of appealing the sentence.” (Dillon, 199)

When such trifling matters arrived in his Court for resolution, Constantine assumed that “simple lack of experience was the usual cause” (Dillon, 200-201). “Such unnecessary consultationes not only burdened the imperial chancellery but also undermined the credibility of the provincial jurisdiction and the success of the appellate system.” (Dillon, 201). The object of Constantine’s  judicial reforms seems to have been to shore up the integrity of the judicial process by empowering regional officials to decide cases on the Emperor’s authority, without disturbing the Emperor in the process. Failure to abide by this would lead to the Emperor losing confidence both in the intelligence and the competence of the lower courts.

Remarkably, that is precisely the point of Canon 7 of Sardica:

“Bishop Hosius said: Our importunity and great pertinacity and unjust petitions have brought it about that we do not have as much favour and confidence as we ought to enjoy. For many of the bishops do not intermit resorting to the imperial Court, especially the Africans, who, as we have learned from our beloved brother and fellow bishop, Gratus, do not accept salutary counsels, but so despise them that one man carries to the Court petitions many and diverse and of no possible benefit to the Church, and does not (as ought to be done and as is fitting) assist and help the poor and the laity or the widows, but is intriguing to obtain worldly dignities and offices for certain persons. This evil then causes enfeeblement, not without some scandal and blame to us. … If, then, beloved brethren, this seems good to all, decree that no bishop shall go to the imperial Court except those whom our most pious emperor may summon by his own letters.” (Council of Sardica, Canon 7).

Hosius was quite aware of the reason Constantine had originally initiated appellate reforms throughout the empire, and when the bishops were constantly elevating “many and divers” petitions directly to the Imperial Court, it was undermining the credibility of the appeals process, and the Emperor was losing confidence in the ability of the bishops to handle cases. Here Hosius has restated for the Church in the plainest of terms the thoughts of an Emperor on his own judicial reforms. The fact that this was then canonized at a Church council reminds us that it was the integrity of Constantine’s appellate process that was in mind at Sardica, not Roman primacy. The Eusebians who had ignored Julius’ subpoena and appealed directly the Emperor instead were part of a widespread problem that required correction.

But, we must remember, Sardica was not called primarily to consider a matter of doctrine, but to consider the accusations against Athanasius. Canon 7 therefore also serves to exonerate Athanasius, who had remained in Rome until summoned by the Emperor to Milan. Notice that Athanasius considers it a matter of personal integrity that he had avoided the Imperial Court in Milan until he was either forced by circumstances to respond, or until the Emperor himself had called him there. He wrote to Emperor Constantius:

“When I left Alexandria, I did not go to your brother’s headquarters, or to any other persons, but only to Rome;  and having laid my case before the Church (for this was my only concern), I spent my time in the public worship. I did not write to your brother, except when Eusebius and his fellows had written to him to accuse me, and I was compelled while yet at Alexandria to defend myself; … When however three years had passed away, he wrote to me in the fourth year, commanding me to meet him (he was then at Milan); and upon enquiring the cause (for I was ignorant of it, the Lord is my witness), I learned that certain Bishops had gone up and requested him to write to your Piety, desiring that a Council might be called. Believe me, Sire, this is the truth of the matter; I lie not.” (Athanasius, Apologia ad Constantium, paragraph 4)

Athanasius, as it turns out, insists that he was obediently waiting out the appeals process, cooperating with it to the best of his ability, and making sure he avoided the suspicion of an Emperor. Canon 7 therefore achieved three ends, all of which were related to the case before the council: it affirmed the guilt of the Eusebians for their constant appeals directly to the Imperial Court; it affirmed the innocence of Athanasius who did not go to the Imperial Court until summoned; and it formalized an ecclesiastical policy of adhering to the clear intent of Constantine’s judicial reforms.

But there was yet another reason for Athanasius to avoid the appearance of meddling in the appeals process. Notice that he insists to Constantius that once he had laid his case before the church in Rome—”for this was my only concern,”— he “spent [his] time in the public worship.” It was important for him to maintain that he had no further interest in Rome other than to participate in the appeals process and wait it out. The reason Athanasius insists that he had remained in Rome without disturbing the appeals process, and had gone to Milan only when summoned there, is this: he was already under suspicion of being a potentiore, and potentiores were considered one of the greatest threats to the independence of the judiciary. It was imperative that he not even appear to behave like one.

 Canon 11: The Independence of the Appeals Process

When judicial authority was delegated to the provinces, far away from the Imperial Court, one risk to Constantine’s reforms manifested in the persons of powerful men who could undermine the appeals process by their undue influence. Such men, called potentiores, could impose upon the provincial governors and thereby interfere with the turning of the wheels of justice:

“It is salutary to recall that as early as the reign of Constantine provincial governors might be impeded in the prosecution of their duties by the presence of potentiores, men whose influence might overshadow the restricted and transitory power of their nominal governors. … Potentiores could subject a governor to illegal or extralegal pressure and even challenge or ignore his authority.” (Dillon, 196)

The presence and influence of such men was a matter of some concern to the Emperor, and had to be addressed. We find that Constantine took extraordinary steps to prevent potentiores from corrupting his system of justice by their influence:

“Constantine sought to guarantee lawful hearings when the balance of justice preponderated unfairly to the side of the powerful, not for the virtue of their cause but by the added weight of money, might or influence.” (Dillon 198)

So near to Constantine’s heart was this matter of potentiores that he wrote to his vicar in Italy (325 A.D.), relieving him of all other duties, except the task of handling cases related to potentiores:

“That Your Gravity, already intent on other business, not be burdened by heaps of rescripts of this sort, We have decreed to impose on Your Gravity only those cases in which a powerful person can oppress a weak or inferior judge.” (Dillon, 198)

Three years later, writing to the Prefect of the City of Rome, Constantine insists that matters related to potentiores be brought immediately to his attention:

“If any very powerful and arrogant person should arise, and the governors of the provinces are not able to punish him or to examine the case or to pronounce sentence, they must refer his name to Us, or at least to the knowledge of Your Gravity. Thus provision shall be made for consulting the interests of public discipline and the oppressed lower classes.” (Pharr, Clyde, The Theodosian Code and Novels, and the Sirmondian Constitutions (Princeton University Press, 1952) 28)

Constantine’s concern about “very powerful and arrogant” persons is particularly significant in the matter of Athanasius because his detractors had argued successfully before Constantine that Athanasius was just such a potentiore—a man of disproportionate influence and means. That was the very charge that led to Athanasius’ first exile: “Eusebius … swore that Athanasius was a rich man, and powerful, and able to do anything” (Athanasius, Apologia Contra Arianos, Part I, chapter 1, paragraph 9). We note, as well, that the Eusebians later argued successfully before Constantius that they, in comparison to Athanasius, were powerless and “destitute” (Athanasius, History of the Arians, Part II, chapter 9).

Constantius was fully persuaded of the charges, and in his Letter Against Athanasius he explained just how influential Athanasius was believed to be—wherever Athanasius went, “they were astonished at his powers” (Athanasius, Apologia ad Constantium, Letter of Constantius against Athanasius. paragraph 30). In his Letter Against Frumentius, a disciple of Athanasius, Constantius worries that Frumentius will  pass over into another province “and not only unsettle and disturb the Churches … but also thereby cause utter overthrow and destruction to the several nations whom he visits” (Athanasius, Apologia ad Constantium, Letter of Constantius to the Ethiopians against Frumentius. paragraph 31). Whatever the truth may have been about Athanasius, his detractors had managed to convince two Emperors that he was a potentiore, and that he needed to be eliminated.

We can scarcely imagine a better way to pull at the heart strings of an Emperor than for the plaintiffs to allege that their opponent’s status as a potentiore was interfering with his system of justice. The Eusebians took full advantage of this.

Because Constantine’s edicts on potentiores were directed to the Vicar in Italy (Dillon, 198) and the Prefect of the City of Rome (Pharr, 28), we are not left wondering why the Eusebians were only too happy—and in fact eager—to have Julius summon a council “and to be himself the judge, if he so pleased” (Athanasius, Apologia Contra Arianos, Part I, chapter 2, Letter of Julius to the Eusebians at Antioch, paragraph 1). All the Eusebians had to do at council was invoke the statute on potentiores again, and the matter would be immediately elevated to the Imperial Court, which was their preferred venue. In fact, it appears that this was their very intent.

The Eusebians, as we recall, had held council against Athanasius in Tyre “at which a Count presided, which an executioner attended” and where detractors “were dragged about by soldiers” (Athanasius, Apologia Contra Arianos, Part I, chapter 1, Encyclical Letter of the Council of Egypt, paragraph 8). The same occurred at Mareotis where “a Count attended with military assistance, … frightening all the members of the Church, and permitting no one to give true testimony.” (Athanasius, Apologia Contra Arianos, Part I, chapter 1, Encyclical Letter of the Council of Egypt, paragraph 14). The Arian party had arrived in Rome with the same intentions, only to find

“that the trial was to be an Ecclesiastical one, at which no Count would be present, nor soldiers stationed before the doors, and that the proceedings would not be regulated by royal order (for they have always depended upon these things to support them against the Bishops, and without them they have no boldness even to speak)” (Athanasius, History of the Arians, Part II, chapter 11).

Realizing that the Council would not provide a favorable venue, and that they would not be able to rely upon their usual accusations, the Eusebians promptly withdrew.

We would not dwell so long on this matter of potentiores except that it seems to have occupied the mind of the Eusebians enough to make the charge against Athanasius before Constantius in Tyre, and before Constantine in Constantinople; and it occupied the mind of Constantine enough to exile Athanasius; and it occupied the mind of Constantius enough to warn neighboring provinces of the powers of Athanasius and his disciples; and it occupied the mind of Athanasius enough for him to insist that his intentions in Rome were simply to spend his time “in the public worship.”

And to the matter at hand, it occupied the mind of Hosius enough that he would make it a matter of canon law at Sardica. The issue of potentiores had the potential to corrupt the appeals process in the civil domain, and Hosius was not about to let it do so in the ecclesiastical domain. Remarkably, that is precisely the point of Canon 11 of Sardica:

“Bishop Hosius said: This also we ought to decree, that when a bishop comes from one city to another city, or from one province to another province, to indulge boastfulness, ministering to his own praises rather than serving religious devotion, and wishes to prolong his stay [in a city], and the bishop of that city is not skilled in teaching, let him [the visiting bishop] not do despite to the bishop of the place and attempt by frequent discourses to disparage him and lessen his repute (for this device is wont to cause tumults), and strive by such arts to solicit and wrest to himself another’s throne, not scrupling to abandon the church committed to him and to procure translation to another.” (Council of Sardica, Canon 11).

Almost half of the canons of Sardica deal with this particular issue of potentiores occupying, or attempting to occupy, another man’s episcopal see to exercise influence there. Canon 1 prohibited the practice of moving from one city to another, for persons who did so “are inflamed with excessive covetousness and are only serving ambition in order to have the repute of possessing greater authority.” Canon 2 condemned those who “pass from one city to another, and shall raise up seditions, tickling the people and be assisted by them in raising a disturbance.” Canon 6 absolutely forbade a bishop to be ordained in a small town for which a single presbyter under the authority of a bishop would suffice, “lest the name and authority of bishop should be made of small account.” Canon 8 required that a bishop not go to court if he could send a deacon in his place, for “the person of a subordinate does not excite jealousy.” Canon 9 requires that if the bishops of one province are sending petitions to the bishop of another, “he that is in the largest city, that is, the metropolis, should himself send his deacon” in his place. Canon 10 required that “if some rich man or professional advocate be desired for bishop, he be not ordained” unless he had first passed through the offices of reader, deacon and presbyter, spending considerable lengths of time at each station, lest he turn out to be a potentiore. Canon 12 aims to minimize the occasion in which bishops who have “great possessions” in another bishop’s province “come too frequently” to his city. By minimizing the time a wealthy bishop spends in another bishop’s province, he “will be seen to be clear from the charge of ambition and arrogance.” Canon 13 requires that any clergy excommunicated in one province and taking refuge in another be sure to present themselves to the assembly of bishops to make their intentions known. Canon 19 addresses those bishops who had moved into another bishop’s province, and were “not willing to return to the churches to which they were nominated.” Clearly the issue of potentiores had occupied the collective mind of the bishops convened at Sardica.

But again, we must remember, Sardica was not called primarily to consider a matter of doctrine, but to consider the accusations against Athanasius. Canon 11 therefore achieved three ends, all of which were related to the case before the council: it affirmed the guilt of the Eusebians and their “practice of removing from one place to another” and “translations from small cities to larger dioceses” for the purpose of increasing power and influence (Athanasius, Apologia Contra Arianos, Part I, chapter 2, Letter of Julius to the Eusebians at Antioch, paragraph 25 and chapter 3, Encyclical Letter of the Council of Sardica, paragraph 49); it affirmed the innocence of Athanasius who had only translated from one place to another for legitimate purposes, by invitation, and to lodge an appeal (see also, Canon 3, Canon 5, and Canon 7); and it formalized an ecclesiastical policy halting the carnal ambitions of potentiores within the church.

Thus in  Canons 7 and 11, Hosius had not only exonerated Athanasius and condemned the Eusebians, but had also established the integrity and independence of the courts of the church, bringing them into compliance with Constantine’s appellate reforms. Such was the role of Hosius—a confidant of Constantine and a remarkably accomplished jurist—in  canonizing the substance of Constantine’s judicial reforms at Sardica.

The relevance of all of this to our study of the Council of Sardica is that it provides the context in which Julius of Rome would write to the Eusebians, asking,

 “And why was nothing said to us concerning the Church of the Alexandrians in particular? Are you ignorant that the custom has been for word to be written first to us, and then for a just decision to be passed from this place?” (Athanasius, Apologia Contra Arianos, Part I, chapter 2, Letter of Julius to the Eusebians at Antioch, paragraph 21)

The Roman Catholic interpretation is that Julius was making a claim of papal primacy, and that it was already a custom of the church to write to Rome in the case of any dispute to seek a resolution. But that is to divorce Julius’ statement from its historical and literary context. As we demonstrated last week, the Eusebians had already written to Julius about the Alexandrians in particular, as both Julius and Athanasius testified:

“I received the letters against Athanasius….” (Athanasius, Apologia Contra Arianos, Part I, chapter 2, Letter of Julius to the Eusebians at Antioch, paragraph 26).

“Eusebius and his fellows wrote also to Julius, and thinking to frighten me….” (Athanasius, Apologia Contra Arianos, Part I, chapter 2, Letter of Julius to the Eusebians at Antioch, paragraph 1).

In the case of an appeal, Julius’ duty was to compile the evidence from both parties, render a judgment and forward it to the Emperor by official courier, in accordance with Constantine’s reforms. Thus, Julius’ first response to the Eusebians in Antioch was essentially a subpoena, requesting additional information. Because they replied by letter without answering any of his questions, he asked in his second letter, “And why was nothing said to us [in your second letter] concerning the Church of the Alexandrians in particular?” He had been trying to collect the required information from both parties, and the Eusebians replied “in an unbecoming and contentious temper,” without bothering to answer any of Julius’ questions about the case.

The next line in his letter provides the foundation for Roman Catholic claims, focusing as they do on the first half rather than the second half of what he said:

“Are you ignorant that the custom has been for word to be written first to us, and then for a just decision to be passed from this place?“

In reality, Julius was simply serving as an appellate judge whose job it was to collect information from both sides, compile a dossier and forward it to the imperial court. This was all in accordance with custom of forwarding the documents for review, after which “the emperor reached a decision on the basis of the documents sent” to him (Dillon, 200).  The job of the appellate judge therefore was simply to collect information from both parties, in order to compile the data for review and analysis in a higher court, and the Eusebians were not willing to let the appeals process do its work.

When viewed in this context, and in the context of Hosius’ remarkable career as a jurist and his final role as president at the Council of Sardica, what comes to the fore is not Roman primacy, but Constantinian judicial reform, in which Julius plays the role, not of a final arbiter, but of an appellate judge doing his best to fulfill his duties to the Emperor.

The complaint against the Eusebians thus reduces not to a failure to submit to Roman primacy, but a failure to participate properly in a judicial inquiry. So Hosius concluded in his final summary of the case—namely that Julius had exercised his duties admirably “by correspondence,” but the Eusebians had “relied more upon violence than upon a judicial enquiry” (Athanasius, Apologia Contra Arianos, Part I, chapter 3, Letter of the Council of Sardica, paragraph 37). Indeed, as the council of Egypt attested, the Eusebians were willing to fill “all greater courts” with their accusations (Athanasius, Apologia Contra Arianos, Part I, chapter 1, Encyclical Letter of the Council of Egypt, paragraph 3), but could not be troubled to participate in Julius’ lower court. Yes, when viewed through the eyes of Athanasius’ defenders, the Eusebian error was to take their matters to higher courts without going through Julius’ lower court first.

We will continue this series next week, but for now we will leave our readers with this final point. Under Constantine’s reforms, the appellate judges were to compile “sentences” that the Imperial Court could consider in a final ruling. Those “sentences,”  or sententiam, when complete, were supposed to be forwarded to the Emperor for review. As Lord Thomas Mackenzie informs us, “Under the earlier emperors, it had become customary for judges in cases of doubt to consult the emperor before delivering judgment (consultatio ante sententiam).” But in his reforms, “Constantine prohibited appeals before final judgment” (Mackenzie, Studies in Roman Law (1886), 379) because he did not want every dispute brought before his court until the appeals process was allowed to work and a judgment could be rendered for his final consideration. The Eusebians had violated this by attempting to resort to consultatio ante sententiam even while Julius was still compiling the sententiam. In his rebuke of the Eusebians in Antioch, Julius wrote,

“Nevertheless it is necessary that I should acquaint you that, although I wrote, yet the sentiments (sententiae) I expressed were not those of myself alone, but of all the Bishops throughout Italy and in these parts. I indeed was unwilling to cause them all to write, lest the others should be overpowered by their number. The Bishops however assembled on the appointed day, and agreed in these opinions, which I again write to signify to you; so that, dearly beloved, although I alone address you, yet you may be assured that these are the sentiments (sententiam)  of all.” (Athanasius, Apologia Contra Arianos, Part I, chapter 2).

Unfortunately, in the English rendering, it appears that Julius is speaking of “sentiments,” but he is actually invoking the authority of Constantine’s judicial reforms and using precise legal terminology to do it. He is insisting that he and the bishops throughout Italy had compiled the sententiam, to be forwarded to the Imperial Court, but the Eusebians had been engaging in a practice contrary to custom and in violation of Constantine’s reforms: consultatio ante sententiam, which is to say, consultation with the emperor prior to a ruling being issued from the lower court. Thus he says to them, “Are you ignorant that the custom has been for word to be written first to us, and then for a just decision to be passed from this place?”

Thus it was necessary for Hosius, when he took up the case, to canonize in the church what Constantine had codified for the empire: “many of the bishops do not intermit resorting to the imperial Court,” and therefore we “decree that no bishop shall go to the imperial Court except those whom our most pious emperor may summon by his own letters.” (Council of Sardica, Canon 7). Other than that, when appeals were to be lodged in a Roman court, the bishop of Rome should preside. But so long as the there is no violation of the appellate process, bishops “in any province whatever” may appeal to the Imperial Court on behalf of those who require the assistance of the Church “provided that these persons have a just cause of petition,” and “if any of the bishops should have friends at the Court and should wish to make requests of them as to some proper object, let him not be forbidden” (Canon 7 and Canon 9). There is no papal or Roman primacy in this at all.

No, Julius had not asserted papal primacy in his letter to the Eusebians, and Sardica had not confirmed it. Rather, Julius objected to the illicit use of consultatio ante sententiam against the wishes of the Emperor, and Hosius, the widely respected jurist and bishop, corrected the error by canonizing Constantine’s appellate reforms at the Council of Sardica.