If any Clergyman have a matter against another clergyman, he shall not forsake his bishop and run to secular courts; but let him first lay open the matter before his own Bishop, or let the matter be submitted to any person whom each of the parties may, with the Bishops consent, select. And if any one shall contravene these decrees, let him be subjected to canonical penalties. And if a clergyman have a complaint against his own or any other bishop, let it be decided by the synod of the province. And if a bishop or clergyman should have a difference with the metropolitan of the province, let him have recourse to the Exarch of the Diocese, or to the throne of the Imperial City of Constantinople, and there let it be tried.
Ancient Epitome of Canon IX.
Litigious clerics shall be punished according to canon, if they despise the episcopal and resort to the secular tribunal. When a cleric has a contention with a bishop let him wait till the synod sits, and if a bishop have a contention with his metropolitan let him carry the case to Constantinople.
Let the reader observe that here is a greater privilege given by a General Council to the see of Constantinople than ever was given by any council, even that of Sardica, to the bishop of Rome, viz., that any bishop or clergyman might at the first instance bring his cause before the bishop of Constantinople if the defendant were a metropolitan.
That our canon would refer not merely the ecclesiastical, but the civil differences of the clergy, in the first case, to the bishop, is beyond a doubt. And it comes out as clearly from the word πρότερον (= at first) that it does not absolutely exclude a reference to the secular judges, but regards it as allowable only when the first attempt at an adjustment of the controversy by the bishop has miscarried. This was quite clearly recognized by Justinian in his 123d Novel, c. 21: “If any one has a case against a cleric, or a monk, or a deaconess, or a nun, or an ascetic, he shall first make application to the bishop of his opponent, and he shall decide. If both parties are satisfied with his decision, it shall then be carried into effect by the imperial judge of the locality. If, however, one of the contending parties lodges an appeal against the bishops judgment within ten days, then the imperial judge of the locality shall decide the matter. There is no doubt that the expression “Exarch” employed in our canon, and also in canon 17, means, in the first place, those superior metropolitans who have several ecclesiastical provinces under them. Whether, however, the great patriarchs, properly so called, are to be included under it, may be doubted. The Emperor Justinian, in c. 22 of his Novel just quoted (l. c.) in our text has, without further explanation, substituted the expression Patriarch for Exarch, and in the same way the commentator Aristenus has declared both terms to be identical, adding that only the Patriarch of Constantinople has the privilege of having a metropolitan tried before him who does not belong to his patriarchate, but is subject to another patriarch. In the same way our canon was understood by Beveridge. Van Espen, on the contrary, thinks that the Synod had here in view only the exarchs in the narrower sense (of Ephesus, Cæsarea), but not the Patriarchs, properly so called, of Rome, Alexandria, Antioch, and Jerusalem, as it would be too great a violation of the ancient canons, particularly of the 6th of Nicæa, to have set aside the proper patriarch and have allowed an appeal to the Bishop of Constantinople (with this Zonaras also agrees in his explanation of canon 17). Least of all, however, would the Synod have made such a rule for the West, i.e., have allowed that any one should set aside the Patriarch of p. 275 Rome and appeal to the Patriarch of Constantinople, since they themselves, in canon 28, assigned the first place in rank to Rome.
It appears to me that neither Beveridge, etc., nor Van Espen are fully in the right, while each is partially so. With Van Espen we must assume that our Synod, in drawing up this canon, had in view only the Greek Church, and not the Latin as well, particularly as neither the papal legates nor any Latin bishop whatever was present at the drawing up of these canons. On the other hand, Beveridge is also right in maintaining that the Synod made no distinction between the patriarchs proper and the exarchs (such a distinction must otherwise have been indicated in the text), and allowed that quarrels which should arise among the bishops of other patriarchates might be tried at Constantinople. Only that Beveridge ought to have excepted the West and Rome.
The strange part of our canon may be explained in the following manner. There were always many bishops at Constantinople from the most different places, who came there to lay their contentions and the like before the Emperor. The latter frequently referred the decision to the bishop of Constantinople, who then, in union with the then present bishops from the most different provinces, held a “Home Synod” and gave the sentence required at this. Thus gradually the practice was formed of controversies being decided by bishops of other patriarchates or exarchates at Constantinople, to the setting aside of the proper superior metropolitan, an example of which we have seen in that famous Synod of Constantinople, a.d. 448, at which the case of Eutyches was the first time brought forward.
This canon is found in the Corpus Juris Canonici, Gratians Decretum, Pars II., Causa XI., Q.I., canon xlvj.