In the Ukrainian tomos and elsewhere recently, the Patriarchate of Constantinople has asserted a universal right to hear appeals from bishops and clergy anywhere in the Orthodox world, on the basis of Canons 9 and 17 of the Council of Chalcedon. While Constantinople often likes to give the impression that this purported right is uncontested, historically it has been resisted just as often as it has been asserted. In his Rudder, St Nicodemus the Hagiorite (d. 1809) gives a long footnote to Canon 9 of the council, presented in its entirety below (Greek text after the jump) demonstrating on historical, logical and canonical grounds that Constantinople does not possess the right to hear appeals from other patriarchates, but that only an ecumenical council is the final judge in such cases. In particular, St Nicodemus notices that then, just as now, Constantinople’s claim seems to be motivated by its peculiar polemical yet highly-imitative relationship to Rome. Among other points he makes is that ecclesiastical legislation from the time of Justinian– that is, a century after the Council of Chalcedon– clearly state that there is no right to appeal the ruling of a patriarch, a law that would have been inconceivable had Canon 9 been understood as granting Constantinople the right to hear appeals against the other patriarchs.
Canon 9 of Chalcedon reads as follows:
If any cleric has a suit against a cleric, he is not to leave his own bishop and have recourse to civil courts, but is first to argue the case before his own bishop, or at least with consent of the bishop himself let justice before whomever both parties choose. If anyone infringes this, he is to be subject to the canonical penalties. If a cleric has a suit against his own, or another, bishop, he is to plead his case before the council of the province. If a bishop or cleric is in dispute with the metropolitan of the same province, he is to have recourse to the exarch of the diocese or to the see of Imperial Constantinople and plead his case there.
[From: Richard Price and Michael Gaddis, trans. The Acts of the Council of Chalcedon, vol. 3 (Liverpool: Liverpool UP): 97]
Commenting on it, St Nicodemus states:
Like bees round a hive, various opinions have surrounded this part of the present Canon. For our own authorities, being opposed to the rule and authority of the Pope, and desirous to honor the patriarch of Constantinople, have inclined to exaggeration. Hence Macrius the bishop of Ancyra understands by “exarchs of the diocese” the other Patriarchs, while to the Patriarch of Constantinople he refers the final appeal, and he wants him to be the chief and supreme judge over all the Patriarchs. Macarius was followed also by Alexias [i.e., Anna Comnena] in her History, and by Nicholas the bishop of Methone in writing against the principle of the Pope. The Papists, again, wish to establish the monarchial status of the Pope, following our authorities and concede that the Bishop of Constantinople is chief judge over all, because the Bishop of Rome is chief even of the Bishop of Constantinople according to the Canons. So the Bishop, or Pope, of Rome is the ultimate and common judge over all the patriarchs, and ahead of even the Patriarch of Constantinople in respect of judicature; accordingly, it is to him that any appeal must be taken from the four Patriarchs of the inhabited earth. These Papists are Bessarion the apostate, Binius, and Belarminus. Pope Nicholas, again, in writing against Photius to Emperor Michael represents the Canon as meaning the Bishop of Rome by the phrase “Exarch of the Diocese,” and that word “Diocese” which it employs in the singular number is meant to be taken to have a plural meaning of “dioceses,” just as, for instance, where it says “there went up a mist from the earth” (Genesis 2:6), instead of saying “there went up mists from the earth.” And that the canon says that anyone having a dispute with the Metropolitan ought to have it tried first and chiefly before the Exarch of the Diocese, that is to say, the Bishop of Rome, though by concession and on secondary grounds it may be tried before the Bishop of Constantinople.
All these men, however, are wandering far astray from the truth. For the fact that the Bishop of Constantinople has no authority to officiate in the dioceses and parishes of other Patriarchs, nor has he been given by this Canon to grant a decision in reference to an appeal on the part of the whole Church (which means a change of judicature from any court to another and higher court, in accordance with or according to Book IX of the Basilica, Title I), is plain—first, because in Act 4 of this Council held in Chalcedon the Bishop of Constantinople named Anatolius was blamed by the rulers as well as by the whole Council for overstepping his boundaries and taking Tyre from its Bishop, namely, Photius, and handing it over to Eusebius, the bishop of Berytus, and for deposing and excommunicating Photius. Notwithstanding that he offered many pretexts, in spite thereof whatever he had done was annulled and invalidated by the Council, and Photius was justified, and he received back the bishoprics of Tyre. That is why Isaac the Bishop of Ephesus told Michael, the first of the Palaeologi, that the Bishop of Constantinople does not extend his authority over the Patriarchates of the East (according to Pachymeres Book 6, ch. 1).
Secondly, because the civil and imperial laws do not state that only the judgment and decision of the Bishop of Constantinople is not subject to appeal, but merely says indefinitely that no appeal can be taken from the decision of any Patriarch or of the Patriarchs in the plural. For Justinian Novel 123 says to let the Patriarch of the Diocese ordain or prescribe those things which are consistent with the ecclesiastical Canons and with the laws, no party having any right to object to his decision. And Leo the Wise in the first title of his Legal Epitome says that the court of the Patriarch is not subject to appeal, while he is described by another as the source of ecclesiastical decisions; for it is from him that all courts derive their authority, and they can be resolved into him again. Even Justinian too, in Book 3, ch. 2, of his Ecclesiastical Compilation, says: “Let the competent Patriarch examine the decision without fearing an appeal”; and in Book 1, Title 4, of his Ecclesiastical Injunction: “The decisions of Patriarchs cannot be appealed”; and again, in Book 1, Title 4, ch. 29: “It has been made a law by the Emperors preceding us that no appeal can be taken from the decisions rendered by Patriarchs.” So, considering the fact that according to these emperors, who agree with the sacred Canons, the decisions of all Patriarchs are insusceptible of appeal, or, in other words, they cannot be carried to the court of any other Patriarch for review, how can the Patriarch of Constantinople grant them a hearing? And if the present canon of the 4th or even c. XVII of this Council had intended the Bishop of Constantinople to entertain appeals over the heads of the rest of the Patriarchs, how could the emperors have decreed the diametrically opposite and contrary view, at a time when they well knew that civil laws at variance with the Canons were null and void?
Thirdly, because if we grant in accordance with the foregoing Papists that the Bishop of Constantinople can judge the Patriarchs, and that he can review their decisions and judgments, since the Canon makes no exception of which or which Patriarch, he is therefore as a logical inference to be considered to have the right to judge himself and also the Bishop of Rome as well, and thus the Bishop of Constantinople becomes the first and the last and the common judge of all the Patriarchs and even of the Pope himself. So, then, with the inventions by means of which they are trying to establish the monarchic office of the Bishop of Rome, they are wrecking and demolishing it with the very same arguments.
Fourthly, because no one, even though he be a Metropolitan or a Patriarch, has any right to impose anything on churches outside his jurisdiction, excepting only the ones subject to him, according to Apostolic Canons XXXIV and XXXV, canons VI and VII of the 1st, canons III and VIII of the 2nd, canons XX, XXXVI and XXXIX of the 6th, and canons III, XI and XII of Sardica, and canon IX of Antioch, as well as others: this being so, how can the present Canon and the others have ordained the opposite and contrary of all these?
Fifthly, because if the Bishop of Constantinople had received any such privilege, how is it that the Patriarchs of Constantinople, when quarreling oftentimes with the Pope, did not claim any such right, but merely insisted that the priorities were equal? Or, be that as it may, how is it that no other Christian amid their quarrels and differences ever called the Bishop of Constantinople greater than the Bishop of Rome? So the Lord liveth, He liveth!
The true explanation of the canon is this. The Exarch of the Diocese, according to Balsamon, is not the Metropolitan of the province (since a Diocese comprises many provinces and metropolis), but the Metropolitan of the Diocese; nor the Patriarch, for, as canon VI of the Second Ecumenical Council says, if anyone dishonors all the Bishops of the Diocese, which is the same thing as saying the Exarch of the Diocese, which indeed the present canon does say: whereas a Synod of the Diocese and an Exarch of the Diocese occupies a different from that held by each Patriarch together with the bishops subject to him. So the Exarch of a diocese is the Metropolitan of the diocese who has some privilege over and above the other Metropolitans of the same diocese. But this privilege of Exarchs is not today in effect. For though certain Metropolitans are called Exarchs, yet other Metropolitans in their dioceses are not subject to them. So it appears, from what the same Balsamon says, that in those times the Exarchs of dioceses were certain others (among whom, according to Zonaras, were those of Caesarea, Cappadocia, Ephesus, Thessalonica and Corinth) who wore polystavriain their churches. These polystavria were in reality chasubles embroidered with many crosses, as Balsamon says, on page 447 of the Juris Graecoromanus. Nevertheless, that privilege ceased to be exercised either immediately or not long after this Fourth Ecumenical Council was held. That explains why Justinian fails to mention it in what he says concerning disputes between clergymen, notwithstanding that he enumerates the other courts or tribunals of clergymen.
So it is evident that the Canon means that if any bishop or clergyman has a dispute or difference with the Metropolitan of an exarchy, let him appeal to the Exarch of the diocese; which is the same thing as saying that clergymen and metropolitans subject to the throne of Constantinople must have their case tried either before the Exarch of the diocese in which they are situated, or before the Bishop of Constantinople, as before a Patriarch of their own. I did not say that if any clergyman has a dispute or difference with the Metropolitan of some other diocese, or if a Metropolitan has a dispute or a difference with the Metropolitan of any diocese or parish whatever, they must be tried before the Bishop of Constantinople. Nor did I say, Let him apply first to the Exarch of the diocese, or to the Bishop of Constantinople, as Pope Nicholas above garbles and misexplains the Canon; but, on the contrary, it left it to the choice of the ones to be judged to determine with equal rights whether they should go to the Exarch of the diocese or to the Bishop of Constantinople and be tried in precisely the same manner and equally well either before the one or before the other. That is why Zonaras too says that the Bishop of Constantinople is not necessarily entitled to sit as judge over all Metropolitans, but over those who are judicially subject to him (interpretation of canon XVII of the present 4th Council). And in his interpretation of canon V of Sardica the same authority says: “The Bishop of Constantinople must hear the appeals only of those who are subject to the Bishop of Constantinople, precisely as the Bishop of Rome must hear the appeals only of those who are subject to the Bishop of Rome.” Now, however, that the Synod and the Exarch of the diocese are no longer active or in effect, the Bishop of Constantinople is the first and sole and ultimate judge of the Metropolitans under him, but not of those under any of the rest of the Patriarchs. For it is only an ecumenical council that is the ultimate and most common judge of all Patriarchs, as we have said, and there is none other.
In view of the fact that, as we have stated, these Exarchs mentioned by the Canon were long ago displumed, those who are now called Exarchs, as representatives sent abroad by the Church, are names for ecclesiastical services.
[From: The Rudder, trans. D. Cummings (Chicago: Orthodox Christian Educational Society, 1957): 253-255, lightly edited for formatting and accuracy of translation; emphasis added]