Canonical Letters

CANONICAL EPISTLE OF SAINT GREGORY, ARCHBISHOP OF NEOCAESAREA, WHO IS CALLED THAUMATURGUS

Concerning those who in the incursion of the barbarians ate things sacrificed to idols, or committed other faults.

ACCESSION OF THE SCHOLIA OF THEODORE BALSAMON AND JOHN ZONARAS.

CANON I.

^A It does not burden us, most holy Pope, if the captives have eaten those things which those who hold dominion over them have set before them; especially since there is one report among all, that the barbarians who made incursions into our regions did not sacrifice to idols. But the Apostle says: "Food for the belly, and the belly for food; but God will destroy both it and these" (I Cor. vi, 13). But also the Saviour, making all foods clean, says: "Not that which enters into the mouth defiles a man, but that which comes out" (Matt. xv, 11). And also this, that in the case of captive women who were violated, the barbarians having insolently abused their bodies—if indeed her life had been condemned even before, she having wandered far from the eyes of those who commit fornication, as it is written, then the state of the fornicator is suspicioned even in the time of captivity. And it is not fitting to communicate easily with those of such a kind in prayers. But if indeed any things here concern the canon at present: Note this canonical epistle on account of those who in captivity have eaten polluted things, and did not eat things sacrificed to idols. For perhaps you will say there is some distinction between things sacrificed to idols and other foods eaten by heretics. Likewise note the epistle on account of those who join themselves voluntarily to the Agarenes. For this is done daily in the provinces of the Turks and the region of Iberia. BEVEREG.

participation in prayers. If, however, there is one who has lived in the utmost holiness and has displayed a life clear and beyond all suspicion beforehand, but now has fallen into disgrace through force and necessity, we have an example in Deuteronomy concerning the young woman whom a man found in the field and forced, and lay with her: “You shall do nothing to the young woman,” he says, “for there is no sin of death in the young woman; for just as if a man rises up against his neighbor and murders his soul, so is this matter; the young woman cried out, and there was no one to help her” (Deut. xxii, 26, 27). These things, then, are such.

BALS. ^B Being asked by the saint what ought to be done for those Christians who have been taken prisoner by the barbarians and have eaten the idol-offerings set before them by these, he answered that these foods do not burden them, that is, they do not bring grave damage; and all the more so because there is one consensus among all, namely, that everyone says the barbarians who made incursions against us did not sacrifice to idols. He also brings forward citations from the Apostle and from the Gospel. From the Apostle indeed: “Foods for the stomach and the stomach for foods; but God will destroy both this and these.” This apostolic passage speaks about gluttony and voraciousness; and by “foods” he designates those things which are superfluous and luxuries; by “stomach,” he means ^C voraciousness, not the belly itself. Through these things, the Apostle says that gormandizing and luxury belong to voraciousness, but do not lead to God; and the vice of voraciousness is intimately related to luxury, and one serves the other. But God will make these idle and ineffective, so that no one is harmed by them. From the Gospel, he used the words of the Gospel which say: “What enters through the mouth does not defile a person.” Then, also concerning captive women, whom the barbarians violated: he says that if their former life was suspect, a habit of fornication makes them suspect even during the time of captivity. And for this reason, ^D it is not right to pray with them readily, but only after they have submitted themselves to assigned penances. Habit, however, is a long-established custom, which has also been confirmed by time, which even approaches nature itself in similarity; so those who are not such [habitual sinners] did not sin when violated. He used as an example the law which is in Deuteronomy concerning the virgin to whom a wrong was done by force in the wilderness. And these are the matters that pertain to the canon. The saint, however, seems, from the fact that he said no grave damage is brought upon those who ate the idol-offerings set before them by the barbarians, and from the fact that he says everyone is fully persuaded that the barbarians did not sacrifice to idols, and from the fact that he uses the apostolic words which discuss luxury and gluttony, and likewise the evangelical ones which treat the same, not to have made a simple response, but one which is divided into those who ate idol-offerings through luxury of their own accord; into those who ate forced by the barbarians by violence; into those who on account of nature

^A necessity participated in such food; and into those who did so because of the violence of the barbarians, not having sacrificed to idols. Whence also, as it seems to me, not one of these will be free from censure. For those who ate these things through luxury will be subjected to greater penances; those who did so due to necessity and for the nourishment of the body, as having no other way to be fed, will be punished more lightly. And the others will be punished more moderately for the eating of what is impure, because even the holy man says that to eat of the idol-offerings set before one by those who have not sacrificed to idols is not a grave matter—though it is by no means entirely free from reproach.

But someone may ask: Since the fourteenth canon of the blessed Peter, archbishop of Alexandria and martyr, provides that those who ate idol-offerings under tyrannical violence, and who sacrificed in such a manner, are not to be punished, but rather are to remain in the clergy (if they are clerics), ^B how does the present epistle decree that those who ate idol-offerings are not severely harmed, implying thereby that they are harmed moderately?

Solution. The holy martyr Peter, in his fourteenth canon, holds that even in the very act of eating the offerings, these athletes remained martyrs and bore witness. For he says that an iron instrument was thrust into their mouths, and their hands were burned, and simply put, they did not consent in any way to eat the idol-offerings or to sacrifice to idols. But the present canonical epistle deals, at the beginning, with captives who indeed ate the idol-offerings set before them by force, yet were not at the very time they were eating compelled by tyrannical violence; and for this reason, he wishes those who entirely yielded to the will of the tyrant to be punished moderately.

I myself think that, just as it is not entirely free from censure to eat idol-offerings under the force of barbarians who have not sacrificed, so too is it not free from censure to endure barbarian defilement by violence; and this, too, will be punished moderately. For even the civil law says in book 60, title 38, chapter 12, thesis six: Even a woman who has been defiled by the enemy and has returned is accused by her husband—though not justly, unless she has suffered this by force—and in such a way he pardons the ravished woman and does not break the marriage. But the ecclesiastical law will not suffer her who has been entirely defiled by a barbarian to be pure without a penance. ^C Read also the 93rd Novel of the Emperor Lord Leo the Wise, which says at the end regarding these matters: "We by no means decree that he who has remained untouched by captivity may come to a union with another," and so forth. Such a Novel abrogates the 117th Novel of Justinian, which is situated in book 28, title 7, and says that at times such a marriage may be dissolved; but this Novel has place when the captive woman has not been defiled by the barbarians. If anything of such a sort has happened, those things in the said chapter of the 60th book have their place.

^D ZONARAS. When barbarians had invaded Roman territories and laid them waste, those who were made captives by them tasted of idol-offerings or other forbidden foods. Therefore, the man was asked concerning these.

^A The saint says that if the captives ate the things placed before them by those who held them captive, this does not "weigh heavily"—that is, it does not bring about a grievous injury—especially since there is a single report among all, or rather, since all say the same thing: that the barbarians who overran our regions did not sacrifice to idols, and so the captives did not eat sacrificed food either. He brings forth proofs both from the Apostle and from the Gospel. From the Apostle, the words: "Foods for the belly, and the belly for foods," and what follows. This passage is correctly understood as being about gluttony and voracity. By "foods," he means superfluous abundance of food and luxury; by "belly," he means gluttony and not the stomach itself. Through these words, the Apostle is saying that gluttony and luxury pertain to voracity, but they do not lead to God; rather, the infirmity of gluttony ^B is joined to luxury, and the one is subservient to the other. God, however, makes these things hollow and void, so that no injury may come to anyone from them. This saint seems to have used these apostolic words here to show that things done out of luxury and gluttony are condemned and deserving of penance, but not those done out of necessity and physical compulsion. Thus, even if the captives ate some forbidden foods while being slaves, due to the lack of other sustenance and because nature was compelled in order to be fed, this is not so grave as to be reckoned a sin. From the Gospel, he used those words of the Lord which say: "Not what enters into the mouth defiles the man," and these also point toward the aforementioned understanding.

Then concerning the captive women whom the barbarians corrupted, he gives an opinion: if their former life had been condemned, then their fornicating ^C habit makes them suspect, even in the time of captivity; and for this reason, one ought not to commune with them readily, but only after they have undergone, clearly, the customary penances. A "habit" is a long-lasting custom, fixed by time, which becomes like nature; therefore, such women are not to be thought to have sinned, being compelled by force. But if their former life was temperate and irreproachable, and having been enslaved, they endured the insult of the barbarians through the captivity out of violence, they are blameless. And he uses as an example the decree in Deuteronomy regarding the virgin who was violated, whom a man forced and ruined in the wilderness, which says: "There shall be no sin of death unto the maiden."

CANON II.

^A to banish them—that is, to cast them out of the Church openly—and to separate them from the body of the faithful, so that by their means the wrath of God should not come upon all, and especially upon those who preside, who do not seek out and examine such persons. Then he adds also the testimonies of Scripture, and toward the end he says: "But if any, having been punished for their greed in a time of peace, have sinned again in the same way during the incursion of the barbarians, such persons," he says, "do not only draw down upon themselves the wrath of God, but also upon the whole people." While these things are so, observe from this present ^C epistle that it is permitted to bishops to restrain with imposed penalties the power of those who are greedy for gain. Those who plunder the goods left to the faithful from the captivity should be chastised with severe ecclesiastical censures, while those who are not rapacious in such a manner should be punished more moderately. Wherefore, in such causes of this kind, bishops may rightly judge even laymen. For how indeed shall they punish them if the truth has not first been made manifest? But for someone to be banished from the communion of the faithful on account of greed is a serious matter, and woe to the greedy! For the civil law, regarding one who seizes ^D goods from a fire or from the ruins of a house,

^A condemns him to fourfold restitution within a year; but after a year, to simple restitution. Read the first chapter of title twenty of book sixty. In similar fashion those who seize goods from a house that has been attacked are punished with a pecuniary penalty. For the second theme of the third chapter of the same title and book states this explicitly: Even if something is seized from a house or village that is being attacked, it is subject to the law.

ZONARAS. At the time when the persecution against the martyrs was raging, some of those who had escaped came upon the houses of those taken captive and carried off the things that had been left behind by the barbarians. Being asked concerning these people, this great Father says that all greed is forbidden by the holy Scriptures, and it is impossible to embrace in one letter all that the Scriptures discourse upon concerning greed. But he says briefly that every greedy person is excommunicated [cast out] from the Church—that is to say, rejected and estranged. ^B For sons are said to be disinherited when, because of some crime, they are cast out from the paternal inheritance and are considered deprived of all right of kinship. Furthermore, to dare to regard such a time—a time of calamity when people were mourning, some having been taken captive, others having relatives led off into slavery, and others suffering the loss of their property—as a time for profit, is the mark of impious men and those hated by God, that is, those detested by God and beyond all extreme wickedness. Therefore, it seemed good to excommunicate such people, that is, to cast them out openly from the Church and to separate them from the fullness of the faithful, so that by their means the wrath of God might not come upon all, and above all upon those who preside, should they not seek out and examine such persons. ^C He adduces scriptural testimonies, and then adds that if some, on account of greed that had already occurred, and which had begun before the incursion of the barbarians, while paying the penalty, not only were not brought to their senses (this admits a double sense: for he says "paying the penalty" either meaning being punished by God, who, to avenge the injury of the prior time, sent the barbarians, or meaning that, being punished by the reprimands of the bishops for the prior greed, they did not repent), but even in the time of the wrath of God, for which the barbarians came, turned themselves to greed, gaining profit from the blood of those ruined or from captives who had been slaughtered—and interpreting this "gaining profit from blood," he added the following: For, he says, whether they plunder the goods of men being led away into captivity, which is [their] destruction, or of men who have been killed; what else is to be expected than that, on account of greed, they heap up wrath for themselves and for the whole people, that is, draw the wrath of God upon themselves and upon the people? And he also brings forward an example from ancient history, that because of one man having sinned, many were punished.

CANON III

^A dedicated it, sinned: and did the wrath come upon the whole congregation of Israel? And he alone sinned, but he did not die alone in his sin. And for us, whatever is not our own, but belongs to another, at this time ought to be considered as something dedicated to God as gain. For that Achar indeed took from the spoils: and they themselves now take from the spoils; and he indeed took the things of the enemies, but they now take the things of their brothers, making gain of destructive profit. ^B

BALS. When the saint had said that those who seize the things pertaining to the captives and those left behind from the barbarian plunder are to be cast out from the faithful, and that because of those who have often fallen in this way and have not been corrected, the wrath of God accumulates also upon the people, he brings forward for the confirmation of these points the history written in the book of Jesus son of Nave concerning Achar. For he narrates that when Jesus had proclaimed that all the spoils captured from Jericho were to be dedicated to God, Achar, after the city of Jericho was captured, having stolen a golden tongue and a certain garment, buried them in his tent. But since God was angry because of this, the Israelites were defeated in the war. And because the cause of the wrath of God was unclear, lots were cast, and it fell upon Achar. And he, being interrogated, confessed the theft and brought forward the things that had been stolen; and he himself was stoned to death, and all those around him, and the animals, and all his property. And he says: Behold, one man sinned, and he took from that which was dedicated to God; and because of his sin, many perished in the war from the congregation of the Israelites; and again, ^C retribution was made not upon him alone, but upon all his own. But to those who might perhaps have said that there is a difference between those things which had been dedicated to God and those which belong to private individuals, the saint stands in opposition, and establishes that the present plunder is worse than that greed; because the things of the brothers left behind at the time when the plunderings are carried out by the enemies are reckoned as dedicated to God: and that even if the things plundered by Achar and those seized by these men have an equality, because both were acquired from plunder or captivity, yet the cause of the latter is greater. For Achar indeed took the things of the enemies: but those who are now seized by the lust for having more have seized the goods of their brothers, considering their calamity to be a destructive profit. Note the present canon on account of those who plunder the goods of the Churches and monasteries, and, to speak once for all, on account of those who claim as their own things that are dedicated to God. ^D

ZONAR. It is written in the book of Jesus son of Nave that when this Jesus was besieging Jericho, he proclaimed that all things in it were to be dedicated to God. But when the city was taken, Achar, having taken gold and a certain garment, buried them in his tent. But when God was angry because of this, the Israelites were defeated after this in war, and many fell. And when the cause of the divine wrath was being sought, by lots being cast Achar was designated: and

when questioned, he confessed the theft and brought forward the stolen items; and he himself was stoned, along with his wife, his children, his tent, and his livestock. Behold, then, he says, one man sinned, and many Israelites perished in the war—all of them. ^A Furthermore, this great Father magnifies the greed of that time and, comparing the two, he demonstrates that this crime is graver than that committed by Achar. For Achar, he says, took or stole from the spoils, and these men likewise took from the spoils; but he took the possessions of enemies, while they took the possessions of their brothers, which makes the wrong greater. Then he proceeds, since some were saying, "We found these things cast aside by chance, with no one claiming them, and we did not even know to whom they belonged," and he opposes to them the passages from Deuteronomy and Exodus and says: to those who speak in such a way, the Father says:

CANON IV.

^B • Let no one deceive himself, nor [claim that he possesses them] as if he had found them; for it is not permitted for the one who finds to profit. For Deuteronomy says: "If you see your brother's calf and his sheep wandering on the road, do not disregard them; you shall surely restore them to your brother. And if your brother does not approach you, and you do not know him, you shall gather them and they shall be with you until your brother seeks them, and you shall restore them. And so you shall do for his donkey, and so you shall do for his garment, and so you shall do for every loss of your brother, whatsoever may be lost by him, and you find them." This is from Deuteronomy. But in Exodus, ^C not only if one finds the things of a brother, but also those of an enemy: "You shall surely restore them," it says, "to the house of their master." If, then, it is not permitted to profit from the things of a brother or an enemy when he is at peace, living in leisure, and unconcerned for his own property, how much more so when he is oppressed by adverse events, fleeing from enemies, and compelled by necessity to abandon his own things?

BALS. It is likely that some said, "We did not seize the possessions of our captive brothers, but we found them abandoned, and we did not know to whom they belonged, and therefore no reproach falls upon us." ^D Against them, therefore, the saint opposes the passages from Deuteronomy and Exodus, and he says that even if one should find things cast aside and neglected at such a time, and he is ignorant of their master, not even then is he permitted to profit from them. For he is required to guard them until their master recognizes them and seeks them. Then he adds that if, according to the Mosaic legislation, it is not permitted for anyone to claim as his own things belonging to others—even if they are friends, and even if they are enemies, and even if they are neglected and this in a time of peace—but one is compelled to restore them to their masters, even if they live in luxury and ease and are not even concerned about their own...

affairs ^A? The saint has decreed these things, and he proceeds to teach how those who have seized such property must be punished, as well as those who have not seized it but have found it, and furthermore, those who, after finding it, do not restore it.

The civil law says precisely these things in theme 5, chapter 43, title 12, book 60: "He who takes abandoned alien property with the intent to profit from it, even if he does not know to whom it belongs, is subject to the action for theft; unless, perhaps, the master has left it in such a way that he takes no care for it. For in that case, even if he took it as if stealing it, since it ceased to be the master's, he is not liable for theft. For theft does not occur if there is no one from whom the theft is committed." If, however, he thought that which was not abandoned was abandoned, he is not a thief. But if it was not abandoned, and he did not even think so, and he took it with the intent to give it to the master when he might be found, he is not subject to the action for theft, even if he accepts a reward for the discovery.

Likewise, chapter 61 of title 3 of book 50 provides as follows: "If anyone had detained property of an absent person that was vacant ^B, he was not held in ancient times, either by the interdict concerning force, or by the interdict 'That which is done by force or secretly,' except by the action requiring the owner to recover his own, insofar as the master was absent." We, therefore, wish that he, as one who is a possessor, be held by the general interdict concerning force; for it is ridiculous to say that they believed that which is alien to be their own; just as we said also concerning the action for theft in double, that he who handles it against the mind and will of the master commits theft. We say these things, however, provided that a period of thirty years has not passed from the time he took possession.

Note what is written here concerning the property of captives. Read also book 34, title 1, chapter 17, which says: ^C "Owners recover fields taken back from the enemy that were previously theirs; for they are not in the category of loot, nor do they become public property. For those things that are seized from the enemy do not become public." Note, therefore, that according to both the canons and the laws, not only are those who plunder and seize the property of captives punished and held liable, but also those who say they have found property—whether something vacant or immovable—and do not immediately make the property manifest and keep it in the name of the master. According to ecclesiastical law they will be censured, and according to the civil law they will be punished as thieves, if the property is movable, or by the interdict concerning force, if it is immovable.

When that which is found is neglected—what is called by the laws *proderelictum* (abandoned)—the one who has detained it is not punished in the same way. But if the object is movable, he is compelled to restore it—and he alone, if he has not secured ownership of it as a possessor in good faith, within three years; if it is immovable, that which was detained as *proderelictum*, unless he has become its master, within ten years. There is a great difference between what is vacant and what is held as abandoned ^D. For we possess what is vacant by intention, even if we do not possess it naturally; but what is abandoned we possess neither civilly nor naturally; and therefore, from the good

^A faith of the possessor, its ownership is acquired. These things, however, have no place in matters pertaining to captives; and for this reason, those who detain them and do not restore them, as has been said above, are held and punished ^B without any distinction.

ZONAR. Let no one deceive himself, as if he had found his brother’s property cast away and perhaps lying neglected. For even if he finds it so, it is not lawful to profit from it and claim another’s property as his own, even if he happens to be ignorant of the owner; but it is necessary to take it and keep it until the owner knows of it and seeks it. Then he puts forward the passages of Deuteronomy and Exodus, thus arguing: If in time of peace your brother or your enemy, out of negligence, loses his own property, it is not lawful for you, having found it, to make it your own gain, but the old law orders it to be preserved for the one who lost it and demands it; how much more, if you find things left behind by your brother who has fled or has been led into slavery, is it necessary to guard them and restore them to the one in distress? ^C

CANON V

BALS. After the saint has replied what was appropriate to those who said that they had found the things of the captives as cast away and neglected, and for that reason had claimed them for themselves; he now replies to those who, for the things previously taken from them by the enemy, were claiming for themselves what belonged to the captives. For he says that this too is a fraud and a vain pretext. For it is not just that those who have received damage from the barbarian war should not bear it with patience, but should themselves become enemies of their brethren, and be called other barbarians toward them. For these reasons, he says, we have sent our brother Euphrosynus to you, so that according to the form here given, or in the same manner as we have done here, he may also provide a form there for you to do likewise. Then he says: the same Euphrosynus will teach you whom and against whom you ought to admit accusers, and whom you ought to exclude from the Church and the communion of the faithful.

ZONAR. Some, he says, having lost their own property and finding the property of others, say they are retaining it in place of what they lost, deceiving themselves. For that which, he says, the barbarian enemies were to them, this they themselves become to their brothers. The barbarians snatched their things, and they [snatched] those of their brothers. For these reasons, he says, we have sent [Euphrosynus] to you, that according to the form observed here, you also

^A should act in this way, and [decide] whose accusations against certain persons you should accept, and whom you should excommunicate, that is, whom you should cast out of the Church and separate from the faithful, so that they might not pray with them. As for whose accusations should be accepted, the sixth canon of the second ecumenical council teaches us. Let those things which we wrote there also be read.

CANON VI. *Concerning those who forcibly detain captives escaping from the barbarians. Something incredible has also been reported to us as having happened in your region, entirely at the hands of infidels and impious persons who do not even know the name of the Lord: that some have proceeded to such a degree of inhumanity and cruelty as to forcibly detain certain captives who have escaped. Send some persons into that region, lest thunderbolts fall upon those who do such things.*

BALSAMON: The saint has learned that certain Orthodox captives, after escaping the barbarian hands, are being forcibly detained by some and are not permitted to return home. He says, therefore, to those to whom this epistolary letter was sent, that this seemed incredible to him; for it is the work of infidels and impious men. But if it has happened, it shall not go unpunished. And therefore they ought to make diligent inquiry concerning this, and send into that region men to investigate these things. For he thinks that a thunderbolt or fire is about to fall and consume those who do these things.

ZONARAS: Some persons, he says, as we have learned, are forcibly detaining captives who have escaped from the enemy: these are entirely infidels and impious, and do not even have knowledge of God. Therefore, the saint demands that those to whom he writes send into that region men to inquire about the matter, lest, he says, fire fall from heaven and consume those who do these things. By this he expressed the gravity of the crime.

CANON VII. *Concerning those who have been numbered among the barbarians, and have dared to do certain absurd things against those of their own race. As for those who have been numbered among the barbarians and have joined them in captivity, forgetting that they were Pontics and Christians, and have become bestialized and turned into barbarians, so that they even murder those of their own race either by club or by strangulation, and point out roads or houses to the barbarians who are ignorant of them: these ought also to be barred from hearing, until some decision shall have been come to concerning them by the saints gathered together in common, and before them by the Holy Spirit.*

BALSAMON: He decrees that those who, after being taken captive, have agreed with the barbarians and have become, as it were, barbarian with them, and have murdered Christian fellow-countrymen, or have pointed out to the barbarians roads unknown to them that lead to Christians, or have made their houses manifest to the enemies, should not be admitted even to the hearing of the divine praises; but he decrees that they should be stationed entirely outside the church in the place of the mourners, after their confession or condemnation, until the saints, gathered together in common, shall have determined [what is to be done] concerning them. He calls the holy bishops

^A to them, and he added, "before them to the Holy Spirit," showing that whatever is dispensed and ordained in common consideration by the bishops, the Holy Spirit suggests these things. And the ecclesiastical law punishes them in this way; but the civil law subjects such persons to the crime of high treason (majestas). For it states in the first chapter, 36th title, 48th book: "The law of high treason is similar to the law concerning sacrilege." And it applies to him who has committed an offense against the Roman people, and who through evil intent has seen to the killing of hostages without the prince's order; or [the case where] armed men are in the city against the republic, or where places or temples are occupied, or a seditious gathering is made, or a magistrate is killed; and [it applies to] one who has sent a message or letters to the enemy, or given them signs, or in any other way brought them aid, and has suborned soldiers to sedition or riot against the republic. And [the law] of the same title and book, chapter 3: "He who has solicited the enemies and handed over the republic to them is punished by capital sentence." And subsequently, the chapter discusses other similar matters. And these things are indeed concerning those who were taken into captivity and agreed with the enemy, and likewise concerning those who were not taken into captivity, but nevertheless agreed with the enemy and conspired against Roman authority. But those who, together with those who plunder land and sea, have joined in the plundering, will be punished more severely, as it seems to me, because their wickedness is greater. For enemies prepare for war with an open front and with, as they say, uncovered head; but robbers devise sudden slaughter covertly and secretly. Therefore, to the extent that a battle with a visible danger is lighter than an unexpected evil, to that extent the incursion of enemies is more tolerable than the snares of robbers ^C.

ZONARAS. Whoever, he says, having been taken into slavery at some time, joined themselves to the barbarians, and together with them have gone out, putting on the barbarity of their customs, and acting as if they had forgotten that they were Christians from Pontus, have slain their own kin, or pointed out to the barbarians paths unknown to them, or houses hidden from them; these shall not be admitted even to the audience while performing penance; that is to say, they shall stand entirely outside the church, in the place, namely, of the mourners, until the saints, having gathered in common, shall deliberate concerning them. And he calls the holy ones either the bishops or simply the faithful, after the example of the great apostle Paul. And he added those words, "before them to the Holy Spirit," so that he might demonstrate that whatever is decreed in common council by the bishops, or even by any of the faithful, the Holy Spirit suggests those things to those deliberating.

CANON VIII

^A Balsamon. The saint has spoken at length concerning those who have snatched or found goods of certain captives, so far as concerns the account of the penances; now he begins to speak also of the types of repentance, that is, of the ecclesiastical penances. And immediately he decrees that they should not even stand with the hearers, but with the weepers outside the church—those who have snatched such items of a captive and have not returned them, but have waited for accusation and conviction because of their denial. But those who have reported themselves and have willingly given back before the summons what they had removed, he decrees that, on account of their repentance, they should join in prayer, that is, they should stand with the faithful; yet they are to be submissive, because they are constrained to go out with the catechumens. And while the ecclesiastical law thus punishes them, the civil law does not admit those who have snatched things and offer what was snatched by them even before condemnation, but condemns them to quadruple restoration. For the law says, chapter 6, title 17, of the 60th book: "The plunderer is not freed from the penalty by offering the thing before the trial." And theme 7, chapter 2, of the same book and title: "Within a year the true value of the thing is quadrupled, but not the interest." What the saint says here concerning those who restore the thing before condemnation and accusation, the law orders to be done for those who have taken something from someone by fear. For it says in theme 5, chapter 13, title 2, of the 10th book: "An action brought on account of fear is free; and it is permitted ^B to the one against whom the case is brought to restore the thing up until the verdict, and not to pay the quadruple amount." There is, however, another difference between those who violently take away things and those who take something from someone by fear. For those who snatch are, along with the quadruple payment, also disgraced; but those who have brought on fear only contract some stain on their reputation.

Zonaras. But those who have invaded foreign houses and stolen goods from there, these, he says, if they are accused and, while denying it, are convicted, are to be, like those we mentioned above, prohibited even from the audience and assigned to the order of the weepers; but if they reveal themselves, or before being accused confess the hidden crime and return the things taken away, let them be placed among those who are turning back from sin, that is, the order of the substrators, who indeed pray ^C with the faithful entering into the temple, but depart like the catechumens.

CANON IX. « Concerning those who in the field or in their own houses have found things which have been left behind by the barbarians. Those who have found something in the field or in their own houses [which had been] left by the barbarians, if they are accused and convicted, [are] to be likewise among those who are submissive; but if they have reported themselves and restored [them], let them also be deemed worthy of the prayer. »

Balsamon. It has been said above concerning those who say they have found ignored goods of those who had been captured, and have claimed the ownership of them for themselves. But now the saint decrees [concerning] those who have found things of the captives in the houses ^D

^A or even cast upon the roads, perhaps because of their weight, that those who benevolently restore the things found should stand in the perfect rank with the faithful. But if they be condemned, they are to be set with those who are falling away, that is, to depart with the catechumens. Such being the state of these matters, one might say that for those who wait for a sentence due to the return of the finding, it is most just that they be punished thus, since they are also liable to an action for theft, according to the law which says: "A thief is he who handles the property of another against the will of the owner, knowing that it is troublesome to him." But that he who has reported himself and has benevolently given back what was found should stand with the faithful, yet not be deemed worthy of the sacraments ^B is something new; for he is rather worthy of the Eucharist, as one who has guarded the property of the captive and has restored it. And therefore some say that along with standing with the faithful, he silently obtains also the participation of the sacraments.

ZONAR. The barbarians, while pillaging the country, were seizing things; and having later encountered better things, or being burdened by the weight while unable to carry what they had seized, they threw some away in the fields, and some they deposited in the houses of certain people, in which they had perhaps found better things. Whoever, therefore, he says, has found any things in the field or in their own houses, these, if they are accused and convicted, let them be placed among those who are falling away; but if they report themselves ^C and give back what they found, let them be deemed worthy even of the prayer: that is, to stand with the faithful until the end of the prayer, and be barred only from the holy communion; namely, until they display repentance, and be deemed worthy of this also.

CANON X

BALS. Having approved of the good will of those who have reported themselves and benevolently returned the finding, the saint adds that if these wish to be considered observers of the commandment ^D of God, they ought to make the restoration of the finding without any base profit. It has been determined that it is not considered proper for the one who finds to demand from the one who was captive either reward for information, or for custody, or for the finding, or anything else, because the loss did not occur out of the negligence of the owners, or even by accident, but from a great calamity and the barbarian incursion. For those who find things lost through the negligence of the owners or by chance, and restore them, do rightly demand a fee for the finding, just as this appears from the laws laid down above.

ZONAR. The holy man [decrees] that one should deal more kindly with those who declare the property of another that they have found.

But, lest those who fulfill this duty should demand finders’ fees, or whatever such thing might be called, he added that one ought not to demand anything from the person to whom he generously restores another’s property, but should fulfill the command without shameful gain. For it is truly shameful gain to demand anything from one who lost his own possessions during a time of crisis, and not to restore them for free.

[CANON XI.]

‹ Weeping, or mourning, is outside the gate of the house of prayer, where the sinner must stand and ask the faithful who enter to pray for him. Hearing is within the gate in the narthex, where the one who has sinned must stand until the catechumens [leave], and then depart; for he says that after he has heard the Scriptures and the teaching, he should be cast out and not counted worthy of prayer. Prostration, or kneeling, is when he stands within the gate of the temple and departs with the catechumens. Standing-together, or confirmation, is when he stands with the faithful and does not depart with the catechumens; lastly is the participation in the holy mysteries. ›

BALS. The present saint, ^B having outlined the five places for those performing penance, did not declare the times of their exercises, nor the sins for which penance is defined. But the great Basil, in his canonical letters, handed these things down with precision. Yet even he suspended the remedy of punishments on the episcopal discretion.