Macrides1988 PDF

Medieval Academy of America
Killing, Asylum, and the Law in Byzantium

Author(s): R. J. Macrides
Source: Speculum, Vol. 63, No. 3 (Jul., 1988), pp. 509-538
Published by: Medieval Academy of America
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Killing,Asylum,and the Law
in Byzantium
By R. J. Macrides
One of the distinguishingcharacteristicsof Byzantium,it is well known,in

contrastto the medieval West,is the continuous traditionof Roman law and
secular courts which the Eastern Empire possessed throughoutits existence,
as well as a centralauthorityin a positionto put these tools into effect.Thus
the question of the nature of law and order in Byzantiumwould seem to be
straightforward; whoever wishes to learn how the crime of killingwas han-
dled can consult the tenth-century corpus of Roman law, the Basilika,where
one findsthatthe criterionwhichthe law applies is intentionto kill,measured
by the object or weapon used, and that capital punishmentis inflictedeven
if the act of violence does not result in a death. Those who cause death by
accidentor throughnegligencereceive a much reduced punishmentor none
at all.' These regulationssurvivein compilationsof Byzantinelaw until the
fall of the empire.2
Yet the seeminglymonolithicstructureof Roman law as it is exhibitedin
the Basilikaunderwentchanges which show the influenceof the other power
in Byzantium,the church. Its positionon punishmentwas expressed by the
early church fathers:the church applied "healing remedies" by dispensing
penances to the person who had broughtabout a death, be it accidentallyor
otherwise.It made a case for saving the lifeof the intentionalor willfulkiller
(hekousios phoneus),givinghim the opportunityto repent and heal the sin of
killing.3
That the church had a differentphilosophy of punishment cannot be
surprising.That this position came to play a dominantrole in the treatment
of killers is perhaps more so. The stages by which this came about are
reflectedin imperial legislation. A law by the emperor Constantine VII
' Basilika60.39.1, 3, 5, 13, 17 and 60.51.15, ed. C. G. E. Heimbach,Basilicorum libriLX (Leipzig,

1833); Theodor Mommsen, Rbmisches Strafrecht (Leipzig, 1899; repr. Graz, 1955), p. 626. The
accidental or involuntarykilling(akousios)went unpunished by civil law, while he who caused
death by negligence, in a state of intoxication,for instance, was subject to a five-yearexile:
Nomocanon XIV Tit.9.26, ed. G. A. Rhalles and M. Potles,ZEvvrayMa T6v Odwlv xal t'Eov xav6vwv,
6 vols. (Athens, 1852-59; repr. 1966), 1:200-201 (hereaftercited as Rhalles-Potles); S. N.
Troianos, 'O "Ho)V62togT" TOi 'ETxoya6(ov (Frankfurt,1980), pp. 6-10.
2 Menelaos A. Tourtoglou, To OovtX6v Xatl i) 6iro;l?lf(wu; TOPi 7ra0O6vTo;(Athens, 1960), pp.
18-28 (hereaftercited as Tourtoglou).

For "healing" throughpenances see n. 85 below. The differingattitudesof church and state
towards punishment are made explicit in the twelfth-century commentaryby Balsamon on
NomocanonXIV Tit. 9.25 (Rhalles-Potles,1:188-91, esp. p. 191, 11.11-13), on canon 9 of the
primasecunda council of Constantinople(Rhalles-Potles,2:680-82), and on canon 43 of St. Basil
(Rhalles-Potles,4:190-91).
SPECULUM 63 (1988) 509

510 Killing and theLaw in Byzantium
Porphyrogennetos(913-59) shows how the state and church worked out a
compromise by making ecclesiastical sanctuaryor asylum available to the
intentionalkiller.4A novel of Manuel I Komnenos (1143-80) implies that
the churchhad taken over completelyin the treatmerit of murderers.Manuel
makes explicitreferenceto Constantine'slaw,ascribingthe breakdownof law
and order in his own day to the asylum for intentionalkillers which his
predecessor had made possible.5
This study representsan attemptto test the assertionsmade in Manuel's
novel about the church's role in cases of killingby bringingtogether the
imperial legislation of the tenth and twelfthcenturies with survivingcase
historiesfromcivil and ecclesiasticalcourts. Killing is a relativelywell docu-
mented crime but up until now the laws have been discussed in isolation,6
while interest has been concentrated on notorious cases of asylum7 and
murdered emperors. Everydaycrime has been ignored. However, when all
the available evidence has been assembled, one can learn somethingof the
social contextof the crime,as well as the functionof the courts,the basis of
decisions reached by secular and ecclesiasticaljudges, and the way in which
asylumworked.
CONSTANTINE VII's LAW ON ASYLUM FOR MURDERERS
The church's right to grant asylum or refuge to all orthodox Christians

fleeing from the threat of imprisonmentor physical harm seems to have
been established by custom.8 Civil legislation from the fourth centuryon
acknowledged and regulated it, with severe sanctionsagainst the transgres-
sors of the rights of refugees introduced in the fifthcentury.9However,
certainpeople were completelyexcluded fromthisprotection- in particular,
murderers(androphonoi), rapists,and adulterers,because, as Justinianstated
in novel 17 (535), "the securityof the holy precinctsis accorded not to those
who commit injustice but to those who are the victimsof injustice."'0The
intentionalkiller was, therefore,a category of criminal to whom the law
4Coll. 3, Nov. 11; ed. J. and P. Zepos, Jus Graecoromanum, 8 vols. (Athens, 1931; repr. 1962),
1:232-34 (hereaftercited as Zepos,JGR).
5Coll. 4, Nov. 68; Zepos,JGR 1:403-8; new edition by Ruth Macrides,"Justiceunder Manuel
I Komnenos: Four Novels on Court Business and Murder,"Fontesminores 6 (1984), 156-67 (text
and translation),190-204 (commentary).The reader is referredto the commentaryfor a fuller
discussionof Constantine'sand Manuel's novels.
6 K. E. Zachariae von Lingenthal,Geschachte desgriechisch-romischen Rechts,3rd ed. (Berlin, 1892;
repr. 1955), pp. 345-47; K. D. Triantaphyllopoulos,"'EXXkvLxoL vo[uxaci aLUo ?VT6 PU3aVTLVO
rOlVlX4 b&xaic," 'AQXtlov I6twrrtov AtXatov 16 (1953), 172-83; Tourtoglou's book is an
exception,but his main interestis the question of compensationfor the victim.
7This is the approach in Emil Herman, "Zum Asylrechtim byzantinischenReich," Orientalia
Christiana periodica1 (1935), 204-38.
8 See Zachariae von Lingenthal,Geschiclite desgriechisch-riimischenRechts,pp. 326-30; Troianos,
'O "Hotva)to;," pp. 3-6; Hermain,"Zum Asylrecht,"p. 204. In the sources "asylum"appears
as &uv2Ja or, more frequently,as .7rQooE??yEtv -n ?XxXuita.
" CodexTheodosianus 9.45.1 (392) and 9.40.16 (398), 9.45.3 (398), and 9.45.5 (432); ed. Theodoc
Mommnsen and P. M. Meyer,TheodosanilibriXVI (Berlin, 1895).
"' Nov. 17.7 and 37 (535); ed. R. Schoell anidG. Kroll, Cowpus iuriS cwvi.s,3 (Berlin, 1895).

Killing and theLaw in Byzantium 511
denied the possibilityof seeking protectionfrom the church. This was in
keeping with Mosaic law which stated that he who commitsa killingdelib-
eratelyshould be removed fromthe sanctuary."
In the tenth century,however, there are signs of a reopening of the
question. In two lettersaddressed to the emperor Leo VI and the magistros
Kosmas, Arethas, bishop of Caesarea, discussed the problem of extending
the protectionof asylum to murderersand an appropriate punishmentfor
such offenders.'2This correspondence was followed by Constantine VII's
new law (undated) whichshows thatthe churchhad broughtpressureto bear
on the emperor to legislate in favor of a more liberal application of asylum
which would include the willfulkiller.This is evident fromthe introduction
to the new law where Constantine VII expresses the need to resolve two
contradictorystatementsby Justinian: the one, a law absolutelyexcluding
murderersfromthe securityof asylum,the other,a privilegewhichJustinian
gave the Great Church, Hagia Sophia, the patriarchalchurch,when he built
it, granting asylum to murderers in that church.'3 This privilege for the
Great Church does not survive,nor is it mentioned in any other source.
However, the twelfth-century canonist Theodore Balsamon does refer to a
"book" which contained Justinian'sprovisions for the church. It may well
have been recorded in that document.'4 In any case the privilegeprovided
Constantinewitha means of reopening the question of a more lenienttreat-
ment for the killer. He resolved the seeming contradictionin Justinian's
statementsby concluding that asylumwas permissiblein the case of a willful
killerwho, regrettinghis wrongdoing,gave himselfup of his own free will
by going to the church and confessinghis otherwiseunknowncrime.'5How-
ever, although the killer's life might be saved in this manner, Constantine
stipulatedthathe was to receiveboth ecclesiasticalpenances and civilpunish-
ments.The latterwere to consistof exile for life,loss of property,and loss
of rightto officeand title.This new law took the victim'sfamilyinto consid-
erationas well. Exile to a place far fromthe scene of the crimewas intended,
according to Constantine, to serve the double purpose of punishing the
murdererand protectinghis victim'srelationsfromthe painfulreminderof
the crime which the killer's presence would have been. In this way, also,
furtherkillingsin revenge mightbe avoided, as Constantinestated.Similarly
the killer'sforfeitof propertywas beneficialto the victim'sfamily:one-third
" Exod. 21.14 and Deut. 19.11-13. See L. Burgmann and S. Troianos, "NomosMosaakos,"
Fontesminores3 (1979), 161-62.
12 L. G. Westerink,Arethae ArchiepiscopiCaesariensisScriptaminora(Leipzig, 1968), 1:257-59,
260-64. See also the discussion by Patricia Karlin-Hayter,"Arethaset le droit d'asile," Byzantion
34 (1964), 613-18 (repr. in Studiesin Byzantine PoliticalHistory[London, 1981]).
'3 Coll. 3, Nov. 10; Zepos, JGR, 1:230-3 1; see also my commentaryin "Justice,"pp. 191-92
and n. 273.
14 Balsamon mentions the biblionin the context of a discussion on slaves whom the church
frees: Rhalles-Potles,3:508. 'According to him, slaves' privilegeswere recorded in the "book"

stored in the sekreton of the protekdikos,
an ecclesiasticalofficialwho was also in charge of asylum
cases (see below, pp. 515-16).
I5 Coll. 3, Nov. 10; Zepos, JGR, 1:23 1.

of the killer's possessions were to be given to the wife and children of the
dead man, as "a small consolation for theirmisfortune."Another thirdwas
to be given to the killer'schildren,and the remainingthirdwould be donated
to the monasterythe killer might enter. In the eveht that he did not, this
thirdwould also go to the victim'sfamily.'6
A comparison of the punishmentsstipulated by Constantine'snovel for
the murderer who obtained asylum with those which Roman law inflicted
reveals the considerable concessions of the new law. The punishmentsin
Constantine'slaw were applied accordingto the degree of the crime- willful
killingwith or withoutpremeditation- while Roman law punished those
who killed intentionallyin accordance with their social position: that is, for
the entimoi,office-holdersabove a certainrank, the punishmentwas banish-
ment (deportatio) and confiscationof property.This punishmentwas charac-
terizedas a capital one, equivalent to death froma legal point of view,for it
involvedloss of rightsas a citizenas well as loss of propertyto the fisc.For
those lower on the social ladder, the euteleis,death was the punishment.'7
It was indeed very desirable to obtain asylum. For some it made the
differencebetweenlifeand death; forothersthe advantage was less dramatic
but stillgreat: their property,instead of being confiscatedby the fisc,could
remain,at least in part,withtheirheirs.'8
MANUEL KOMNENOS's NOVEL OF 1166
What effectdid Constantine'slegislationhave - a law whichmade conces-

sions to the church's more lenient attitude to the murderer? It is rarely
possible to determine the consequences of legislationbut in this case a law
of the emperor Manuel I Komnenos promulgatedsome two hundred years
later, in 1166, informsus.'9 The proem to Manuel's novel on murderers
describes in explicit terms the extent to which Constantine'slaw was used
and abused: "This novel, then,became a pretextfor the most miscreantand
accursed of men to rush to murderous acts withgreat license . .. and to flee
for asylum to the church, and when theyhad procured a letterof pardon,
to return home. In consequence, many did not hesitateto venture upon a
second and thirdmurder and more, because of the emptinessand contemp-
tibility... of the formerpunishment."Manuel's complaintimpliesthatCon-
stantine'sconcessions to the church had practicallyprovided a license to kill.
By sanctioningasylum for murderers,he had actuallyencouraged them in
theiracts of violence. The punishmentsstipulatedin Constantine'snovel did
not act as a deterrentfor,according to Manuel, theyprovided an altogether
16 Coll. 3, Nov.11; Zepos, JGR, 1:232-34; Tourtoglou, pp. 36-75, on the divisionof property.
17 Basilika 60.39.3 and 5. Peter Garnsey,Social Statusand Legal Privilegein theRomanEmpire
(Oxford, 1970), pp. 153-72; M. A. Tourtoglou, "KoLvwvvxa'L TLVEg EnTL6QacTEL EMT' tO PvUaVTLVov
&xcLov," 'EzE,rEnQtoo x?vrpov EQEvV?/;r4; taroeta; tOo eE2ALkv txoObtxa(ov r4g 'Axaoitar
'A02vG6v12 (1965), 169-98, esp. pp. 170-71 and 186-87.
18 For a discussion of the significanceof the measures in Constantine'snovel see Tourtoglou,
pp. 44-45.
19All followingreferencesto the textare frommy translationin "Justice,"pp. 156-67.

too easy and benevolentsolutionforthe willfulkiller,a criminalnot deserving
of help. Manuel supported thisview witha series of quotationsfromthe Old
and New Testament,as well as civillaw, thus isolatingConstantine'snovel in
its unique position of offeringdeliverance for the killer.
In his descriptionof Constantine'snovel Manuel complained not only that
the punishmentsfor killers were too weak but, worse than this, that even
those punishmentswere not being inflicted.He implicatedthe church in this
breakdown,crypticallycommentingthat he did not hear good thingsabout
what happens afterthe killerhas reached the church. Constantinehad pre-
scribed that the church assign penances to the murderer first;the other
punishments,such as exile, were to be inflictedthereafter.Manuel, however,
impliesthatthe matterneverwentbeyond the church.The murderer,having
received his letterof pardon - grammasympatheias - returned home. The
protectionof asylumhad been extended beyond the precinctsof the church.
And what were the civil officialsdoing about murderers?Manuel claims,
"All agape at [the prospect of] money,not only do they not search closely
afterthose who have committedsuch a horror.. . but, worse than this,some
of these men conceal those who have already been detected by them and
arrested and send them forthsecretlyto the Great Church." Here Manuel
not only reveals the corrupt state of his officialsbut also gives a picture of
the Great Church, the cathedral of Constantinopleand the seat of the patri-
arch, as the killers'church,a veritablemagnet drawingprovincialmurderers
to the capital. In fact, Manuel's entire novel is concerned with asylum in
Hagia Sophia, leaving us completelyin the dark about practicein the prov-
inces.
In his new law Manuel returnsto theJustinianicformulationof asylumas
protectiononly for the innocent. Although the emperor could not prevent
the church fromofferingasylumto murderers,he triedto limitthe church's
influence in this area by providing for better detection of the crime and
restoringthe emphasis on apprehension of the killer.Henceforthany civil
officialwho was found not to be doing his best to apprehend the killerwould
be punished as if he had plotted against the emperor. The criminal,caught
before he had the opportunityto run to the church for protection,would be
punished withthe full weightof the law; this punishmentwould once again
act as a deterrent.That the punishmentfor murderersin Manuel's timewas
the one stipulated by Roman law and retained in the Basilika- exile and
confiscationfor the entimoi, death for the euteleis - is confirmedby the
contemporarycanonist Theodore Balsamon.20Furthermorethe differentia-
tion made there in punishmentaccording to the social statusof the offender
was observed also in the twelfthcentury,as can be seen in another law of
1166, Manuel's edict on a doctrinal issue which was carved onto marble
plaques and displayed in the Great Church.2' However, the death penalty
stipulated in the Bacjilikafor the euteleis would not have been carried out
20
Balsamon, commentaryon canon 8 of Saint Basil; Rhalles-Potles,4:116.
21 CyrilMango, "The Conciliar Edict of 1166," DumbartonOaks Papers 17 (1963), 329-30.

under Manuel. Contemporarysources indicate that Manuel commuted sen-
tences of execution to mutilation.22
The evidence of Manuel's novel indicates that by the second half of the
twelfthcenturythe treatmentof killershad to a large extentcome under the
aegis of the Great Church. If we can believe Manuel's descriptionof the
attractionof the Great Church for murderersfromthe timeof Constantine's
novel, it would seem that this novel had been interpretedas a kind of
guarantee of safetyfor the killerin thatchurch. What had been intended as
a compromise had been interpretedas a confirmationof the church's privi-
lege. It now remains to ask to what extent this picture,based entirelyon
Manuel's descriptionof the abuses of Constantine'slaw,is supportedby other
evidence.
HAGIA SOPHIA AND ASYLUM
It is strikingthat the evidence for Hagia Sophia as a place of asylum is

heavilyconcentratedin the mid-eleventhand, more especially,twelfthcen-
tury.23 Several sources of thatperiod referto partsof the church complex as
the prosphygion or "refuge." Anna Komnena calls a chapel dedicated to Saint
Nicholas located next to the Great Church by this name,24and a fifteenth-
centuryRussian traveler to Constantinople situates the chapel behind the
altar of the church, built on the spot where Saint Nicholas had brought a
man he had saved from death.25Anna refersto the freedom frompunish-
ment which a person obtains if he can reach thischapel. Nicholas Mesarites
applies the term"refuge" to the northerndoors of the churchin his descrip-
tionof the revoltofJohn Komnenos.26Anotherpart of the churchassociated
with asylumn is mentioned by Niketas Choniates in his descriptionof Isaac
Komnenos's flightafter his murder of Stephen Hagiochristophorites.He
relateshow Isaac wentto Hagia Sophia and approached theanastathmos where
"murderersask for forgivenessof those enteringand leaving the building,
openly statingtheirsin."27This seems to have been situatedoutside the main
part of the building,in the narthexor exonarthex,near an entrance.28That
22 See Macrides, "Justice,"pp. 198-99, nn. 304, 305. Manuel's wife,Irene, was likewisecom-
mended for saving people from capital punishment:Basil of Ochrid, EpitaphiosLogos,in V. E.

Regel, FontesrerumByzantinarum (Leipzig, 1892; repr. 1982), 1:321, 11.9-11. John II, Manuel's
father,was praised for neither executing nor mutilatinganyone in his entire reign: Nicetae
ChonzataeHistoria,ed. J. L. Van Dieten (Berlin and New York, 1975), p. 47, 11.80-82.
23 J. Darrouzes, Recherchessur les Offikiade l'eglisebyzantine
(Paris, 1970), pp. 327-29 (hereafter
cited as Darrouzes, Offikia);E. M. Antoniades, "Ex4eaat; n5 a'ytar Zo44ta;, 2 vols. (Athens,
1908), 2:132-33, 163-69.
24 Alexiad,ed. Bernard Leib (Paris, 1976), 1:76-77.
25 George P. Majeska, Russian Travelersto Constantinople in theFourteenth and FifteenthCenturies
(Washington,D.C., 1984), pp. 136-39, 223-26.
26 August Heisenberg, "Nikolaos Mesarites, Die Palastrevolutiondes Johannes Komnenos,"
Programm desK. AltenGymnasiums zu Wiirzburg 190611907 (1907), 20, 24-25.

27 NicetaeChoniataeHistoria,p. 342, 11.9-12.
28 Choniates' account of Isaac's act conformswithdescriptionsof the firststage in penitential

practices for killerswho must stand outside the main part of the church (w(o nr; ?XXArta;)
and ask forgivenessof those enteringand leaving the church; Basil the Great in Rhalles-Potles,

refuge in Hagia Sophia was not usually associated with the altar29seems to
be confirmedby a later source, a fourteenth-century imperialprostagma which
refersin general to specially appointed places in the church complex and
requests that refugees keep to those places and not come into the church
itself,causing a commotionand obstructingthe progressof the liturgy.This
same document claims that formeremperors had guaranteed the safetyof
refugeesin the appointed places.30
Hagia Sophia had, further,a tribunalof clerics,the ekdikeion, which cor-
responds to Manuel's general referenceto "thejudges of such mattersin the
most holyGreat Church." The ekdikeion'streatmentof those who had taken
human life is attestedfromthe mid-eleventhcentury.3'The role of the head
is described in sources of the twelfthcentury.
of thistribunal,the protekdikos,
An oration of the metropolitanof Athens, Michael Choniates, addressed to
the patriarchMichael III, who had once served as a protekdikos,says of him
in his formerposition: "You kept a watchfuleye, as was suitable,over those
who shelteredwithinthe ecclesiasticalprecinctin flightfromtheirpredators,
and you treated them witheverysafeguard,binding that which was injured
and strengtheningthat which was weak, and then led them out fromthere
to live unharmed....32 Anothersource, an orationforthe patriarchGeorge
Xiphilinos (1191-98), delivered on the occasion of the promotion of the
protekdikos,describes the role of that officialas one of "punishing and
censuring,in a more compassionate manner and as the law of the church
wishes, those who have soiled their hands with human blood and are in
danger of being apprehended for the crime."33
More informationabout the functionof the ekdikeionand the protekdikos
is given in some detail in a formula which outlines the procedure for a
murderer who seeks refuge in Hagia Sophia.34 According to this formula,
preserved in manuscriptsof the fifteenthcentury,a person who committed
4:405, and below, p. 576. The anastathmos,therefore,cannot have been the "pulpit," as it is
translatedby HarryJ. Magoulias, 0 CityofByzantium: AnnalsofNiketasChoniates(Detroit, 1984),
p. 189. The reluctance of Thomas F. Mathews,The Early Churchesof Constantinople: Architecture
and Liturgy(UniversityPark, Penn., 1971), p. 127, to associate parts of Hagia Sophia with
penitentsand penitentialpracticesmust be reconsidered.
29 The tenth-century guiltyof stealingsilverfromthe
lifeof Tarasios refersto a protospatharios
treasurywho sought asylum at the altar of the Great Church. See G. Da Costa-Louillet in
Byzantion24 (1954-55), 227. The altar does not seem, however,to have played an important
role in asylum in that church in the twelfthcentury.
30 F. Miklosich and J. Muller, Acta et diplomata Graeca mediiaevi, 6 vols. (Vienna, 1860; repr.
1968), 1:232-33.
3' On the establishmentof the ekklesiekdikoi by Justinian,see Gunter Prinzing, "Das Bild
JustiniansI. in der Uberlieferungder Byzantinervom 7.-15. Jahrhundert,"Fontesminores7
(1986), 14-17, plates 3-4. On the later historyof the ekdikeion,see Darrouzes, Offkia,pp. 323-
32. For the first-attestedmurder case of the ekdikeion,see below, p. 517 and n. 39.
32 Mtqa')A 'AxoytvarovroOXwvtdrovT& Zw(T6Meva, ed. SpyridonP. Lampros, 2 vols. (Athens,
1879-80; repr. Groningen, 1968), 1:82-83.
33 George Tornikes, oration addressed to the patriarch George Xiphilinos, in Darrouzes,
Offikia,p. 534, 11.19-22.

34 A. Pavlov, "Grecheskaia zapis o tserkovnomsudie nad ubiitsami,pribiegaiushchimipod
zashchitutserkvi,"Vizantiaskia Vremennik 4 (1897), 155-59 (158-59, text).

a killingand went to the church was presentedto the protekdikosa fewdays
later.For fifteendays he was to stand beforethe BeautifulGate of the church
asking forgivenessof those enteringand leaving. He then came before the
tribunaland made his confession.The protekdikosassigned to him in writing
(semeioma)the penances he was to performin expiation of the sin. These
were based on the categoryof the crime committed- willfulkillingor some
lesserdegree - and consistedof excommunication,fasting,prostrations,and
a public plea for forgivenessin frontof the church. The semeioma also
contained a warning addressed to civil officialsand relationsof the victim
not to harass or interferewith the penitent killer lest they wish to be an-
swerable to God.
More direct corroborationof the truthof Manuel's complaintis the testi-
monyof Theodore Balsamon, who wrotea commentaryon the canons in the
latter part of the emperor's reign. In that work he discusses the case of a
soldier who committed a willful killing and was absolved in writingby a
bishop afteran inappropriatelyshorttime. According to Balsamon, the em-
peror Manuel was angry when he learned of the incident and ordered a
synodalinvestigation."It is said," statesBalsamon, "thatit was because of this
soldier's case that our mightyand holy emperor promulgated the novel on
willfulkillers."35
There is, then, a body of independent evidence which indicates that the
Great Church was offeringasylum to murderers,handling cases of killing
throughthe protekdikosand ekdikeion,and exhibitingleniencywithregard
to penances. But had the church taken over fromthe state in the treatment
of the killer,givinghim penances but protectinghim fromcivilpunishments,
as Manuel's novel also seems to imply?
THE CASE HISTORIES
An attemptto answer this question immediatelymeets with the problem

of the chronological distributionof the evidence; for,apart from the case
Balsamon mentionsfromManuel's reign,thereis not one otherunambiguous
twelfth-century case of murder and asylum preserved,in either an ecclesi-
astical or secular context. No document surviveswhich was issued by a pro-
tekdikosfor a killerwho had received the church'sprotectionand penances,
except for one in verse form which speaks eloquently for the literaryand
argumentativeskillof the protekdikosbut cannot be used to generalize about
twelfth-century practicesin the Great Church.36This strikinglack of docu-
mentationfor cases of killingand asylum contrastswiththe otherwiserela-
tivelyabundant materialfromthe patriarchalarchivesof the twelfthcentury
and should probably be attributedto the fact that, unlike the documents
issued by the synod or the chartophylax,those of the protekdikos,who was
35 Commentaryon canon 74 of Saint Basil: Rhalles-Potles,4:236-37; V. Grumel, Les regestes
des actesdu patriarcatde Constantinople,

1/1(Paris, 1947; repr. 1972), no. 1071.
36 Ruth Macrides, "Poetic Justicein the Patriarchate:Murder and Cannibalism in the Prov-
inces,"Cupidolegum,ed. Ludwig Burgmann,Marie Theres Fogen, Andreas Schminck(Frankfurt,

1985), pp. 137-68.

in charge of a separate sekreton or bureau,37were not copied fromthe register
of his sekreton.The cases he handled withthe ekdikeionand whichhe wrote
up would have been copied into the registerof his own sekreton and not
thatof the patriarchand synod.
The cases which do surviveprovide a small sample and derive fromthree
sources: the Peira, a collectionof excerptsfromdecisionsreached at the court
of the Hippodrome in Constantinoplein the eleventhcentury;the patriarchal
register;and the records of two provincialbishops. The Peira contains five
murder cases, four of which involve asylum. It is the only collection of
decisions from a civil court to survive for Byzantium and is thereforea
fundamentalsource forthe manner in whichthe cases reached the courtand
judges reached theirdecisions.38A furthernine cases of killingare preserved
in the patriarchalregisterand date fromthe ninthto the fifteenth centuries.39
Because these documents do not on the whole take the formof a semeioma,
theydo not yield informationabout the nature of the killingor the church's
attitudetoward asylum. The two exceptions are discussed below. The third
source, the records of two thirteenth-century bishops, contain sixteen cases
in all and are by far the most informativeabout the context in which the
crimeswere committedand how the churchmenviewed and handled them.40
The earliestsources in the sample whichgive an indicationof the church's
attitudetoward the punishmentof murderersare two mid-eleventh-century
patriarchal documents.4' These give direct and certain evidence that the
protectionof asylum was considered to include immunityfrompunishment
outside the precinctof the church. The patriarchaldocumentsconcerninga
slave and a priest who had sought asylum in the Great Church and had
confessed to killingcontain a clause to the effectthat no one is to threaten
or punish them for their crime. The penalty for those who go against this
prescriptionis excommunication.The warningis containedin the documents
whichdescribe the ecclesiasticalcensures assigned to the penitentkillers.Are
these the "lettersof pardon" mentionedin Manuel's novel? If so, how effec-
tivewould theyhave been in protectingthe killerfromcivilofficialsand the
victim'sfamily?
The roughlycontemporarycases fromthe Peira provide some indication.
These cases were brought to the court by private accusers, in one case
37 For referencesto the protekdikos'ssekreton:Balsamon, commentary on canon 82, Carthage

(Rhalles-Potles,3:508, and see n. 14 above) and his treatiseon the offikia of the chartophylax
and the protekdikos:Rhalles-Potles,4:530.
38 Peira 66.24-28: Zepos,JGR 4:249-5 1. For the courtand the natureof the decisionscollected
in the Peira, see Dieter Simon, Rechtsfindungam byzantinischen (Frankfurt,1973), pp.

Reichsgericht
7-32; Nikos Oikonomides, "The 'Peira' of Eustathios Rhomaios: An AbortiveAttemptto In-
novate in ByzantineLaw," Fontesminores7 (1986), 169-92, esp. pp. 179-85.
39For a descriptionof the cases and furtherreferencessee Grumel, Regestes,no. 428 (after
845); no. 887 (1059); no. 888 (1059); no. 1037 (1155); no. 1071 (1166); J. Darrouzes, Les regestes
desactesdu patriarcatde Cohstantinople,1/6(Paris, 1979), no. 2978 and 2986 (1394-95); no. 3081
(1399); no. 3230 (1401); no. 3254 (1402).
40 See below, pp. 519-20 and n. 59.
41 Rhalles-Potles,5:48-50; Grumel,Regestes, no. 887, no. 888. For a more detailed discussion,
Macrides, "Justice,"pp. 196-97.

in anotheras the victim'swife,43
explicitlyidentifiedas the victim'srelations,42
but otherwiseanonymous. In fourof the fivecases of killingincluded in the
collection,the killerhimselfor accompliceshad sought refugein the church.
The role which this played in the judges' decisions7is unambiguous. It was
the criterionwhich determined whether or not the killer was to be con-
demned for the crime. Those who had gone to the church were "released
frompunishment,"44while those who had not were "condemned," either to
bodily punishment45or death (commuted to hard labor in the mines).46
Although those who had sought asylum mightbe "released frompunish-
ment," they were responsible for making reparation to the victim'sfamily.
The importance which the judges attached to this aspect is noteworthy.In
making the apportionment of property,they took into consideration the
resources of the killer and his accomplices.47In one case the judges made
inquiries about the killer's possessions to the judge of the province from
which he came and provided for two-thirdsof his propertyto go to the
victim'sfamilyand one-third to remain with his own family.48In another
case a slave who had sought refuge in the church for a killing he had
committedwas sold and his price was given to the victim'swife.49
Some of the cases also show that a private settlementcould be made
between the killer and the victim'sfamily.50Roman law provided for this
possibilityin capital cases.5' Such an agreement,however,precluded future
prosecution for the crime by the victim'sfamilyand, therefore,ruled out
inheritancefor,according to the law, the heir who did not avenge a killing
was disinherited.52But when the deceased was poor and did not have an
estate,a privateagreementwiththe killerwould give the victim'sfamilysome
compensation. In one of the cases in the Peira in which a settlementwas
made the money was used to buy an officefor the victim'sson, a provision
for his futurewhich made some reparation for the loss of his father.53
These cases from the Peira show, then, that asylum did not necessarily
protectthe killerfrom prosecution for the crime,but it did save his life,as
Constantine'slaw had stipulated. In theirdecisions about the divisionof the
killer'spropertythe judges also appear to have followed the regulationsof
42 Peira 66.24.
43 Peira 66.27. On this case see below, p. 534, and Dieter Simon, "Die Melete des Eustathios
Rhomaios uber die Befugnis der Witwe zur Mordanklage," Zeitschrift der Savzgny-Stiftung
fur
Rechtsgeschichte (RomanistischeAbteilung) 104 (1987), 559-95.
44 Peira 66.24-25.
45 Peira 66.25.
46
Peira 66.27.
47 Peira 66.24-26.
48 Peira 66.24.
49 Peira 66.27. For another case of a slave who committeda killingand fled to the church for
asylum,see the 1059 patriarchaldocument (Rhalles-Potles,5:48). This case shows the other side
of the transaction,in the church.
50 Peira 66.25 and 27.
51 Basilika 11.2.1; 60.53.1. See the discussion by Tourtoglou, pp. 38-43.
52 Peira 66.28.
53 Peira 66.27.

thatlaw, although it is never cited. However,it is more difficultto determine
whetheranother prescriptionof the same novel was applied - that is, the
punishmentof exile for life,whichwas supposed to be inflictedon the killer
who had sought refuge in the church. Exile is not mentionedin any of the
cases and so, at firstsight,it appears that the emperor Manuel's complaint
with regard to this matterwas justified. Yet a definitiveanswer cannot be
given because the cases in the Peira are presented in an abridged and sum-
maryformwithdetail onlyon aspectswhichthe compilerfound noteworthy.54
The cases of killing appear to have been included as illustrationsof the
problems concerning the degree of the accomplices' liabilityand, above all,
for the question of compensation for the victim'sfamily.Reference to exile
mighthave been omittedbecause it was not of directinterest.
While the Peira cases reflectthe way in which murder cases were handled
in the eleventh centuryin one of the civil courts in Constantinople,they
cannot give us a full picturebecause, as noted above, theywere collected to
illustratespecificpoints and are thereforepresentedin an abbreviatedman-
ner, as excerpts, with little informationabout the situationsin which the
killingsoccurred, the people who were involved,etc. For circumstantialde-
tailsthe best sources available are the cases whichcame beforetwo provincial
bishops of the firsthalf of the thirteenthcentury,Demetrios Chomatenos,
archbishop of the autocephalous see of Bulgaria at Ochrid (1216/17-36),55
and loannes Apokaukos, metropolitanof Naupaktos (1 199/1200-1232).56
These cases not only help us to answer the more general questions about the
nature of homicide in Byzantiumbut also contributeto an understandingof
the church's attitude toward killingand the way in which asylum worked.
Chomatenos and Apokaukos were active at a time when the Great Church
and Constantinoplewere under Latin control.57They can thereforebe seen
as replacing to some extent the role of the Great Church with regard to
asylum.This is particularlytrue of Chomatenos,who enjoyed a quasi-patriar-
chal position and drew people from other bishoprics because of his emi-
nence.58
54 Simon, Rechtsfindung, pp. 10-12.

55 See G. Prinzing in Lexikondes Mittelalters, s.v. "Chomatenos." Until the new edition by
Prinzing appears, Chomatenos's acts can be consulted in J. B. Pitra, Analectasacra et classica
SpicilegioSolesmensiparata, 6 (Paris and Rome, 1891; repr. Farnborough, 1967) (hereaftercited
as Pitra).
56 See M. Wellnhofer, JohannesApokaukos,Metropolit von Naupaktosin Aetolien(c. 1155-1233)
(Freising, 1913). Apokaukos's decisions (ca. 30), unlike Chomatenos's (ca. 150), were never
collected. They are therefore scattered in various publications. See below for references to
individualcases.
57 For the politicalbackground,see D. M. Nicol, The Despotate ofEpiros(Oxford, 1957).
58 That Chomatenos perceived himselfas having this status can be seen from his use of the
patriarchalformof address "' ?LeTQLo,6j 'i6v" and his referenceto his metropolitansynod as
the synodosendemousa,the name of the permanent synod at the patriarchate(Pitra, nos. 9, 22,
79, 106). He also crowned an emperor, the prerogativeof the patriarch.On this see Gunter
Prinzing,"Die Antigraphe des PatriarchenGermanos II. an ErzbischofDemetrios Chomatenos
von Ohrid und die Korrespondenz zum nikaisch-epirotischen Konflikt1212-1233," Rivistadi
studi bizantinie slavi 3 (1984) = MiscellaneaAgostinoPertusi,21-64. On the distances people
traveledto Chomatenos, see below, p. 525 and nn. 65 and 81.

520 Killingand theLaw in Byzantium
The cases of killingamong the decisions of the bishops- eightfromeach
bishop are preserved59- are the only criminalcases in their dossiers and
survive along with cases on questions of marriage and inheritance.60They
are our best source for killingand asylum because; unlike the cases in the
patriarchalregisterand those in the Peira,the decisions of the bishops also
contain the confessions of the killers. They therefore convey the name,
position,and place of origin of the killer,the victim'sidentity,the weapon
used in the act of violence, and the circumstancesin which the crime was
committed. Furthermore the case histories are sufficientin number and
varietyto provide an opportunityfor comparing each bishop's handling of
his cases.
Although the cases before Chomatenos and Apokaukos are the best avail-
able sources for the social contextof killingin Byzantium,it mustbe empha-
sized that even these do not give us the whole picture. They do provide a
full range of examples fromthe point of view of degrees of killing- from
"innocent" to "guiltyof premeditated murder" - but they are limited in
terms of the situations in which the killingsoccurred. They do not, for
instance,provide examples of killingscommittedin the course of a robbery
or in a stateof intoxication.They do not representall social classes,and they
derive exclusivelyfromthe pastoral-agricultural societyof Epiros. Therefore
it is impossible to rely completelyon this materialto answer questions of a
general nature about killingin Byzantium.However,the documentsin which
the case historiesare preserved do give sufficientinformationto investigate
other areas: how the bishops reached theirdecisions,what attitudetheyhad
towardthe killerswho confessed to them,to whom theygranted asylumand
on what basis. Furthermore,since we have more cases from these bishops
than fromthe civilcourtsand also because the case historiesfromEpiros are
preserved in full and are not excerpts,we can learn a great deal about the
processes behind the decisions of these ecclesiasticaljudges, which in many
ways were similarto those of theircivilcolleagues.
Taken as a whole the followingpicture of the social context of killing
emerges fromthe cases. The people who came beforethe bishops were from
the middle to the lower social classes: a fiefholder (pronoiar),
a soldier,priests,
stewardsof property,swineherds,and shepherds. Their victimswere of the
same statusor lower. Both assailants and victimswere male withfew excep-
tions. In the two cases in which women were involved as assailants, their
victimswere members of their household or family.Otherwise there were
fewintrafamilialkillings.The mostcommon circumstancesin whicha killing
occurred were quarrels arisingover insultingor rude behavioror over prop-
erty,while the acts of violence which resulted in a death took place most
59Referencesto the cases can be most easily found in the table prepared by M. V. Strazzeri,
"Drei Formulare aus dem Handbuch eines Provinzbistums," Fontesminores 3 (1979), 342-51. To
the seven cases for Chomatenos which are listed there should be added Pitra, no. 120, cols.
509-12.
60 On the bishops' dossiers and how they differ,see A. Laiou, "Contributiona l'tude de
l'institutionfamiliale en Epire au XIIIeme si&cle,"Fontesminores6 (1984), 275-323, esp. pp.
276-79.

oftenin a work-relatedcontext.The weapon or instrumentemployed almost
withoutexception was a stickor staff(xylon,ravdos).
The confessionsreveal a world in whichgivingventto one's anger by using
physicalviolence was a common and normal method of teachingsomeone a
lesson. It could have dramaticresults.Excerptsfromthreeconfessionswhich
Apokaukos heard illustratethe point in a memorable way,for some of this
bishop's decisions, unlike Chomatenos's, preserve the direct speech of the
confession.6'Xenos from Arta came to blows with a man while both were
supervisingthe harvestingof the grapes in the vineyardsof theirrespective
lords.
The youngmanin theserviceof Petomenos, eitherbecausehe waslicentious,

being
young,or becausehe tookpleasurein pranksand delightedinjestingwithwomen,
was harassingthewomenas theycameand wentalongthepathof thevineyardI
was supervising,and he was cominginto contactwiththemunnecessarily, not
allowingthemto comeand go unimpeded.He did thisoftenand I forbadehimas
manytimesbut sinceI did notdissuadehim,I tooka stickintomyhands,eager
to strikehimon the bodyand I broughtit downon himbut he turnedthisway
and thatto avoidtheblowof thestickand twisted
hishead,so thathe receivedthe
blowthereand died twodayslater.62
In another case an unnamed pronoiar explained to Apokaukos that he

had sent a message ahead to his fief(pronoia)bidding his men to prepare
food and drinkforhimselfand his guest,theprotovestiarites
George Choniates.
But when they arrived, they found nothingto eat. The pronoiar was com-
plaining to one of his men when a dependent peasant (paroikos),standing
nearby,butted in and told him to watch his tongue.
Embittered byhiswords,fortworeasons- because,althoughI had notaddressed

him,I heardthisfromhimand becausehe,a paroikos,had daredto speakto me,
hispronoiar,withsuchboldness- I turnedroundto himand,takingholdof him
bythehair,twistedhishead and threwhimontotheground,warninghimnotto
behaveimpudently to me in thefutureor belchforthhisroughtalk.The manlay
on thegroundfromthatmoment,neitherspeakingnormoving.I thoughthe was
pretending to be motionless
and he seemedto me to lie stilland remainso likeone
underthe influenceof wine.But he was reallyand trulydead in an instant, and
therewas neitherbreathnor voicein him,exceptthathis facewas tingeda deep
black,likethedyeof cloth.63
61 The citationof the directspeech of the confessionin his decisions isjust one elementwhich
makes Apokaukos's writingmore direct and personal than his colleague's. His decisions show
interestin and understandingof physicaland mentalstates.See the discussionby Marie Theres
Fogen, "RechtsprechungmitAristophanes,"RechtshistorischesJournal 1 (1982), 74-82; Paul Mag-
dalino, "The LiteraryPerceptionof EverydayLife in Byzantium:Some General Considerations
and the Case of John Apokaukos," Byzantinoslavica 47 (1987), 28-38.
62 S. Petrides,"Jean Apokaukos, lettreset autres documents inedits,"Izvestiirusskago archeolo-
gicheskago Institutav Konstantinopole14 (Sofia, 1909), no. 14, pp. 18-19.
63 A. Papadopoulos-Kerameus,
"'Io&vvqg 'Ao6xaxxog xcflNLxrTc; X(vOtV;Tq," Teaaaeaxov-
raEnIgI; -roPxaOriyrproD K. Z. K6vrov (Athens, 1909), pp. 379-80.

The third example of a heated exchange which escalated into a physical
attack resultingin death also gives a picture of transhumantpractices in
Epiros.
TheodoreVodinopoulos,fromMikraVagenitia,thevillageof Vrestianes, came to

us and explainedthatas the presentwinterwas settingin,as is thecustomof his
region,he was transporting mealto thelowerpartswhichborderon thethemeof
Nikopolis,wherehe intendedto spendthewinterwiththeflockswhichbelonged
to him,[takingthe precaution]lest the riverReachovafloodand preventthem
fromcrossingoverfromtherewiththemeal.He and one of hisservants, Mavros
byname,havingdone this,werereturning home.As theyhad someacquaintance
in theintermediate villages,theyweregivenhospitality byhim[and wereinvited]
toeat.And T heodorehad reclinedand waseating.Mavrosled thebeastofburden,
on whichTheodorerode,to pasturageand was following it.WhenTheodorehad
eaten,he wentto the horseand itsherdsmanMavrosand rebukedMavrosmost
reproachfully,as he had notalsojoined theirhostto eat. He said thatMavros,who
had a wildcharacterand an uncontrolled tongue,hurledabusesat thosewhohad
invitedthemand set thefoodbeforethem.The hostswereindignant at Mavros's
wordsand said to Theodore,"It is notgood thatwe shouldbe unjustly insultedby
yourservant."Theodore,wantingto vindicatethe hosts,tooka staffin his hand
and ran to hitMavrosaboutthefeet.Mavros,he said,seeingthestaffdescending,
inclinedshouldersand head towardshisfeetin orderto deflecttheblows,but he
failed,protectinghisfeetbutreceiving theblowon hishead.64
The above cases are spontaneous violentexchanges which were related to
defense of propertyor honor and involved sticks,staffs,or bare hands. A
case from Chomatenos provides an example of a more deliberate killing,
which was committedwitha lethal weapon and was the resultof anger and
frustrationwhich had been building up over a period of time. Theodore
Demnites,a soldier,from the theme of Acheloos said,
The menin chargeof fiscalrevenuesin thesaid themewereannoyingsome men
who had been givento himby giftof the despotto servehimforlife.One day
whenitwasreportedto himthatthesemenwereyetagainbeingharassed,he was
filledwithrage at once,tooka swordin hand,and ran to avengethem.It was,he
said,aftertherniddaymeal whenangerhas a fullstomachas an ally.Thereupon
themenofthefisc,learningthatDemniteswascomingarmedin sucha way,armed
themselves in defensewithmacesand stonesand whateverwas at hand and pre-
paredto resistin opposition.Whentheyengagedwitheach other,firstwithharsh
words,thenwiththe defensiveweaponswhichwererespectively held by them,a
blowwhichDemnitesdirectedat thehead hitone of theopponentscalledSgouros,
penetrating theskullat once.65
In all the above cases, as indeed in the majorityof cases in the bishops'
registers,the killingstook place at workor in a work-relatedsituation.Fewer
in numberare examples of domestickillings,and it is in thisarea thatwomen
64Petrides,"Jean Apokaukos," no. 6, pp. 7-8.

65Pitra, no. 118, cols. 503-4. Demnites came to Ochrid from the theme of Acheloos, which
was the seat of the suffraganbishop of Naupaktos: Gunter Prinzing,"Studien zur Provinz-und
Zentralverwaltungim Machtbereich der epirotischen Herrscher Michael I. und Theodoros
Dukas," 'Hfeipcoutxa'XQovtxa'24 (1982), 87. See also n. 81, below.

Killingand theLaw in Byzantium 523
are involved. In one case whichcame before Chomatenos informationabout
an attemptedmurder and suicide is revealed withinthe contextof a divorce
case. Chryse,the niece of George Spathas, was unable to endure her husband
any longer,for
she had sufferedmany cruel acts fromthisman. She thereforedeterminedto part

fromhim and to thisend poured the potion of death for herselfas well as him, so
thatif the cUp should pass him by,it mightbe effectivein her.66
In a case of a killing within a familywhich came before Apokaukos a

woman was involved in a differentway,not as the would-be killerbut as the
cause of an argument between fatherand son which led to the son's death.
Basil Kaliges, from the island of Leukas, came to us and explained. He said his
family,composed of his wife,his son Constantineand his wife Pankalo, and Basil
himself,came into conflictand contentionfrom a triflingmatter.[It came about
when] the mother-in-lawwas heard [complaining]about her daughter-in-law,that
her son had been seized with a strange love for Pankalo and had married her,
though his parents were not entirelypleased about this. He said that his son
happened to be away from home at the time and when he returned and found
Pankalo sulking because of her mother-in-law'sharshnesswithher, he was under-
standably distressed and said, "If I work hard for her and she is maltreated in
various waysby my parents and regarded as scum, it is fittingthatI also sufferthe
worstratherthan see my wifeso discontentedand depressed always."At thisBasil,
in defense of his own wife, turned on his son. From the exchange of words the
fatherwas moved to anger against his son, as a fatheris, and supposedly to chasten
him and check his opposition, he took a stone as large as his hand could hold and
aimed it against his own son. This struckhim on the temple, killinghim immedi-
ately.67
Justas the documents which contain the confessions,the semeiomata,re-

create the social contextof the crimes committed,theyalso give indications
about the way in which the bishops reached theirdecisions. An aspect which
emerges is the relativespeed withwhichtheyhandled the cases. It is possible
to inferfrom some cases that the decision followedon the same day as the
confession.This is indicated by the word "today" which appears at the be-
ginningof the semeioma.68Other indicationsof time are, however,missing
fromthe document. For instance,it is not possible to determinehow much
timehad elapsed between the incidentwhich led to a death and the person's
appearance in church or how long the person spent in the church before
coming before the bishop to confess.
66 Pitra, no. 121, cols. 512-14. On this case see Laiou, "Contribution,"pp. 302-3. For the
representationof women in Chomatenos's acts,see Gunter Prinzing,"Sozialgeschichteder Frau

im Spiegel der Chomatenos-Akten,"Jahrbuchder osterreichischen 32/2 (1982), 453-
Byzantinistik
62, and the comments by Dieter Simon, "Die Bussbescheide des ErzbischofsChomatian von
Ochrid,"Jahrbuch Byzantinistik
derosterreichischen 37 (1987), 235-76.
67 N. A. Bees, "Unedierte Schriftstucke aus der Kanzlei des JohannesApokaukos,"Byzantinisch-
neugriechischeJahrbiucher21 (1976), no. 14, p. 75.
68 For Apokaukos see Ptrides, no. 14, p. 18; no. 15, p. 19; and Papadopoulos-Kerameus, p.
379. For Chomatenos see Pitra,no. 118, col. 503; no. 121, col. 511; no. 131, col. 533.

The decisions about the nature of the crirnewere based on the criterion
used in Roman law: dispositionto kill had to be shown,and thiswas deter-
mined by the instrumentor object used in the attack.Like theircivil coun-
terparts,thejudges in the Peira cases, Chomatenos and Apokaukos did not
alwayscite the law which guided them in theirverdicts,More oftenthan not
this has to be inferred.In the case of Radoslavos, who had struckKonstas
the swineherd on the back with the stick he was carrying,the archbishop
concluded that Radoslavos had not intended to kill but only to chasten
Konstas and deter him from grazing pigs in his field,for the stickhe had
used was "neitherhard nor heavy."In the case of Chryse,who triedto poison
her husband and herself,"even thoughthe potion had no effect,"the attempt
alone was sufficientto findher guiltyof murder.In the firstcase the appro-
priate prescriptionswere cited in full.69In the second, Chomatenos made no
direct referenceto the law.70Yet the underlyingprinciplein his decision is
clear, as is the law which supports it: use of poison demonstratesdisposition
to kill,7'and "in criminalmattersit is not the outcome but dispositionwhich
is examined."72
From some cases, too, it can be inferredthat dispositionto kill mightbe
measured by the vehemence or insistencewithwhich the blows were dealt
and the part of the body at which theywere directed.Apokaukos had three
cases in which the manner of the attack,and not the weapon itself,seems to
have been decisive in findingthe person guiltyof a willfulkilling.In the case
of Konstas Salax and Leo Taronopoulos, who beat a man to death,Apokaukos
did not dwell on the weapon used (a ravdos) but on the vehemence of the
blows theydirectedagainst the victim:"theyshould not have beaten the man
to death so savagely."73In the case of ConstantineMelanchrenos,the steward
of a propertywho beat a certain Vratonas with a staffto stop him from
collectingacorns belonging to Constantine's lord, it was the hard blow to
Vratonas's abdomen which indicated that he had intended to do more than
chasten his victim.74
A verdict in a case before Apokaukos shows that a distinctioncould be
made betweenthe initialintentionof the assailantand subsequentdisposition,
revealed by the way in which the attack developed. The categoryto which
this killingcorresponds is an intermediateone between "unintentional"and
"willful,"the "unintentionalapproaching willful."75Theodore Vodinopoulos,
69 Pitra,no. 116, cols. 499-500. Basilika60.39.1.3 is cited.

70 Pitra,no. 121, cols. 511-14.
71 Basilika 60.39.3.
72Basilika60.39.10.
73Bees, "Unedierte Schriftstucke," no. 18, pp. 78-79. See the discussionof this case of 1228
by M. Th. Fogen, "Ein ganz gewohnlicherMord," Rechtshistorisches Journal3 (1984), 71-81.
74 Petrides,"Jean Apokaukos," no. 15, pp. 19-20. The assailant's name is not transmitted in
full in the manuscript. The editor suggests Mela(nchren)os. For Apokaukos's third case, see
Petrides,no. 14, pp. 18-19. In all threecases the weapon used in the assault is described simply
as a xylon or ravdos, the same object used in cases where the assailants are not found to be
guiltyof willfulkillings.
75The definitionsof the categories of killingare found in canon 8 of Saint Basil (Rhalles-
Potles,4:112-14) and in the scholion to Basilika60.39.3 by Garidas (see n. 77, below). A willful

who beat his servant Mavros with a staffto avenge their dinner hosts for
Mavros's insolence,
wasjudged tobe nota willful

killerbutapproaching[thecategory
oflwillfulbecause
thefirstmotionof hisattackwasonlyin retaliation
and not[intended]to cause the
destruction
of killing,
buthe wasnearlya willful
killerbecausehe broughtthestaff
downand woundedwithoutprecaution, overcomebyanger.76
Apokaukos's statementhere approximates the descriptionof the category

which is given in an eleventh-centuryscholion to the Basilikaand also in
canon law.77
fora killingcould be attrib-
Dispositionto killand, therefore,responsibility
uted to someone who had not himselfdelivereda blow. George Stratiopoulos
was declared a willfulkillereven though he had not raised a fingeragainst
the victim;it was preciselybecause he had stood by and allowed, ratherthan
prevented,his two colleagues to beat the victimto death that he was found
guilty.78
Like the judges in the Peiracases,79Chomatenos and Apokaukos sought
corroborationof the evidence provided by the confessionbut, it seems, only
when the confession pointed to a verdict of "innocent" or "unintentional
killer."In three such cases Chomatenos wroteto the bishop in whose diocese
the person lived, requesting that his colleague check the story.80As the
followingcase illustrates,it is not only the factthatthe people involvedlived
farfromOchrid8lbut also the natureof the case whichmade an investigation
necessary.Radoslavos fromPrilep explained to the archbishopof all Bulgaria
thathe had struckKonstas lightlywitha small stick(xylarion) he was carrying,
in order to deter him from grazing his pigs in Radoslavos's field. Fourteen
days afterthe incidentKonstas took to his bed, and he died eightdays later.
According to Radoslavos, Konstas's death was caused by a chronic illness.
Chomatenos wrote to the archbishop of Pelagonia in whose diocese Rados-
lavos was enrolled to "examine the case carefullyand decide accordingly"
whetherRadoslavos was innocent- as Chomatenos believed - or guiltyof
killing(hekousios)could be committedin anger in the heat of the momentor withpremeditation.

The unintentionalkilling(akousios)could be either completelyaccidental or "nearlyhekousios."
See Tourtoglou, pp. 21-22; Troianos, '0 '1otvAXto4" pp. 6-10.
76 Petrids, "Jean Apokaukos," no. 6, pp. 7-8.
77 Scholion 4 to Basilika60.39.3 by Garidas ("nearlywillful"):Basilicorum
libriLX, series B, ed.
H. J. Scheltema, D. Holwerda, N. van der Wal (Groningen, 1985); Balsamon on canon 13 of
Saint Basil: Rhalles-Potles,4:133 ("hekousioakousios").
78 Bees, "Unedierte Schriftstucke," p. 79.
79 In Peira 66.27, which is the fullest excerpt given, reference is made to witnesses who
corroboratedthe evidence.
80 Pitra,no. 116, col. 500; no. 129, col. 532; no. 131, col. 536.
81 The farthestanyone'came was Demnites fromAcheloos (see n. 65, above). For the location
see Peter Soustal and Johannes Koder, Tabula ImperiiByzantini,3: Nikopolisund Kephallenia
(Vienna, 1981), pp. 101 f. They also came fromthe Skopje region,Moliskos(in the area of Lake
Vegoritis),Prilep, Koloneia (Korce), and Prosek. The last threewere in otherdioceses. For these
places see Prinzing,in 'Hreqocortxa'Xeovtxa 25 (1983), 37-103.

murder.82Chomatenos followedthe same procedure in the case of Draganos,
a shepherd fromProsek who confessed to the accidental killingof his eight-
year-oldson in a game of archery.83
Apokaukos, too, checked beforegivinga verdictof innocent.The one case
of this nature from the metropolitanof Naupaktos is in fact the record of
the statementof a thirdpartywhose testimonyproved decisiveforthe verdict.
Stanes, the son of Mavros, George Vouteros's herdsman, had a violent ar-
gumentwithBasil over the damage his sheep had caused to the latter'sfield.
In the course of the fightStanes hit Basil on the head with a light staffin
retaliationfor the beating he had received. Basil fell ill eight days afterthe
incidentand died. Vouteros came before Apokaukos to testifythat
Basil had criedout on his sickbed to thosein his household... thatit was not
fromStanes'blowthathe laydyingbutfromtheillnesshe had contracted.
Vouteros does not seem to have had Basil's statementat firsthand, yet his
testimonycarried weightprobablybecause of his statusas the masterof the
supposed killer'sfather.But his statementmay not have been the only one
Apokaukos took into consideration.The bishop's summingup implies that
other accounts also played a part:
We haveconcludedfromthemanythingswe haveseen and heardthatBasildied
a naturaldeathand we have decidedfromVouteros'sreportthatStanesis inno-
cent.84
The bishops' decisions were accompanied by an enumerationof the pen-
ances (epitimia) to be performed in expiation of the sin, in all cases except
those in which the person was found to be completelyinnocent.For, accord-
ing to canon law, even those who had broughtabout a death unintentionally
(akousios)were to have healing remedies applied to them.85These penances
consistedof a public plea for forgivenessin frontof the church,daily pros-
trations,fasting,exclusion from holy communion, and varyingdegrees of
exclusion fromthe liturgy.86 Guidelines for the penances and the length of
the penitentialperiod were preserved in canon law, withconsiderable varia-
tionsin the lengthof time stipulated.For example, the canons of the council
of Ancyra gave fiveyears for the unintentionaland life for the willfulkiller,
while Saint Basil regarded as appropriate ten and twentyyearsrespectively.87
The kind of penances applied and their duration could vary not only in
accordance with the dispensing authoritybut also in relation to the case in
82
Pitra,no. 116, cols. 499-502.
83 Pitra,no. 131, cols. 533-36.
84 Helen Bee-Sepherle, "IHQo)oaOxaL xaL IHQ aQQcGFLg," Byzantinisch-neugriechzsche
Jahrbiucher
21 (1976), no. 114, pp. 241-42. The name of the assailant is transmittedin two forms:Stanes
and Stanos.
85 On therapeia through penances see canon 102, council in Trullo: Rhalles-Potles,2:549-50.
On penances for the unintentionalkillersee canon 23, council of Ancyra: Rhalles-Potles,3:65-
66; canons 11, 43, and 57 of Saint Basil: Rhalles-Potles,4:129, 190, 215.
86
See the discussion by Strazzeri,"Drei Formulare,"pp. 331-39.
87
Canons 22 and 23 of Ancyra: Rhalles-Potles,3:65-66; canons 11, 56, 57 of Saint Basil:
Rhalles-Potles,4:129-31, 215-16.

question. The degree of contritionshown by the person confessing,his or
her physical condition, and even the kind of work the penitent did were
factorstaken into account by those who set the epitimia.88
The penances which the bishops set show the individualitywithwhich the
killerswere treated. Again, here, theirbehavior is similarto that of the civil
judges, who inquired intothe resourcesof the killers,adjustingtheirdecisions
in accordance withthe circumstancesof the person before them.89The case
of Zoe, daughter of the deceased Nicholas Petzikopoulos,whichcame before
Chomatenos in 1219, is the mostexpliciton thismatter.Six yearsearlier Zoe
had had the hands of a servant amputated in order to put an end to his
repeated theftsin her household. The man's wounds were not properly
treatedand he died. Consideringherselfan accessoryto his death, Zoe came
to the church to ask for the "appropriate medicine for her soul's wound."
Chomatenos concluded,
She was seen to makeherconfessionwitha brokenheartand a humblespirit,and

she gave signsof her contrition,
notonlythe tearsand sighingbut also thatshe
walkedforsix daysto thisplace fromher home,withno regardfortheexertion
and theroughestof roads.
He assigned penances to her "in proportionto her female weakness and the
inexorable conditions of the place in which,as we learn, she lives, and her
contrition."The penances consistedof a diet of bread and water three days
a week, fiftyprostrationsa day, and exclusion from holy communion for
three years.90
In the case of the willfulkillerTheodore Demnites,who killed a man with
a sword,Chomatenos calculated the penances in relationto the man's physical
strengthand took his work, that of a soldier, into consideration.Demnites
was assigned penances to be performedfora period of twelveyears:exclusion
fromholy communion; a diet of bread, pulses, and vegetablesthree days a
week; and fiftyprostrationson days when he was not engaged in the duties
of a soldier.9'
Another example of the way in which the penances were tailor-madefor
the case, adjusted according to the nature of the sin and the resourcesof the
person, is given by Apokaukos. The pronoiar whose "uncontrolledanger"
caused him to bring about the death of a paroikos unintentionallywas to
behave in the followingmanner in expiation of his sin:
Alwaysand all thetime,day and night,he shouldbothchecklaughterand bridle

and showhimself
desiresand insolence,
anger,holdbackirrational tobe completely
repentant,rainingdown alms on the needy,as muchas he can afford,so that
compassionmightflowfromGod.
88
For these considerationssee canon 102 of the council in Trullo and the commentaryby
Balsamon: Rhalles-Potles,2:549-53; canon 5 of Gregoryof Nyssa: Rhalles-Potles,4:314-17.
" Peira 66:24-27; see also the commentsby Oikonomides (as cited above, n. 38), pp. 184-85.
On Chomatenos's epitimia,see Simon, "Die Bussbescheide" (cited above, n. 66).
"I'Pitra,no. 129, cols. 529-32.
91 Pitra,no. 118, col. 505.

These penitentialacts were to accompany fastingand daily prostrationsand
were clearly appropriate to the man's station in life - he could afford to
give alms - and to the fault which led to the misfortune- his deadly
temper.92
Penances also varied in accordance withthe dispensing authoritiesthem-
selves. Considerable differencescan be observed between Chomatenos and
Apokaukos withregard to the number of years theyassigned forthe perfor-
mance of the epitimia. Chomatenos seems to have been the stricterof the
two. The contrastis particularlymarked in a comparison of the cases of
willfulkillingwhich came before the bishops. Demnites,who killed a man in
a rage witha sword, received a twelve-yearpenitentialperiod fromChoma-
tenos, while five years was the maximum in Apokaukos's cases.93 These
differencesappear less striking,however,when one takes into account the
wide range which the categoryhekousios phoneuscovers. The Demnites case
representsone extreme,killingwitha dangerous weapon, whileApokaukos's
cases were less severe, attackswithsticksor staffswhich escalated withfatal
results.94The diverse nature of the cases could, to some extent,account for
the discrepancyin treatment.
Perhaps a betterindicationof divergentpracticescan be seen in the cases
of two fatherswho killed theirsons. Basil Kaliges had wounded his married
son mortallywith a stone in an argument over his daughter-in-law,while
Draganos brought about the death of his eight-year-oldson accidentally,in
a game of archery.
He said itwas one of thefeastdays,and [thisday]foundhimwiththeflockwhich

he was tending,sincehe was appointedas shepherdof the sheep there.He also
had withhim an eight-year-old childwho was his belovedson, and the festive
natureofthedayurgedhimtosomesport.The gamewastostretch a bow,position
arrowsin it,and striveto hitor overshootthe fixedmarkwiththe arrowshots.
Draganosexcelledhisco-archers and fellowshepherdsin theappointedaimof the
game.The pleasurefromthismade himtakepartin a secondand thirddrawing
of thebow.But,unseen,theDarkArcherpreparedtheimplements ofdeathin his
own quiverand turnedjoy immediately into grief,for an arrowof Draganos,
releasedfromthe bowstring whenhis belovedson happenedto be starting out
fromtheflockof sheep to gatherthearrowswhichhad been shot,hithimunex-
pectedly;thefather'sarrow,alas,sentthedearlylovedson straight to Hades.95
Chomatenos found Draganos to be an unintentionalkiller and gave him

penances for four years.96Apokaukos judged Kaliges to be a willfulkiller
and, stating that he was increasing the length of time because Kaliges, a
92 For the case, see p. 521 above and n. 63.

93 Pitra,no. 118, col. 505; Bees, "Unedierte Schriftstiucke,"
no. 14, p. 75.
94 "He who uses a sword or somethingsimilarhas no excuse": canon 8 of Saint Basil (Rhalles-
Potles,4:113). Apokaukos's cases of willfulkilling,on the other hand, read like the description
of the lesser category of "unintentional,nearly willful."If one were to judge only from the
objects used in the assaults,one could not arriveat the verdictof hekousios.
See p. 524, above.
95 Pitra,no. 131, cols. 533-34.
96 Pitra,no. 131, cols. 534-36.

father,had killed his own son (paidoktonos), he assigned to him a five-year
penitentialperiod.97
The above cases show, among other things,thatit was not only the willful
killerwho confessedbefore the bishops. Those who should have had nothing
to fear from civil law - the unintentionalkillersand the innocent- came
also. According to Roman law those who broughtabout a death unintention-
ally were not liable to punishment since disposition to kill was lacking.98
ConstantineVII in his novel on asylumhad also statedthatsuch people had
no need for asylum,for theyhad nothingto fear fromthe law.99Why then
did theyappear before the bishops? Zoe's servanthad died six years earlier
fromunattended wounds. It is clear thatshe was not in any danger fromthe
law when she came before Chomatenos, nor had she ever been. She came in
fear for her soul, "seeking from the holy church of God the medicine ap-
propriateto thiswound to her soul."'00Draganos, who killed his beloved son
in an accident,also came firstand foremostforthe same reason. The church
received them "withwords of consolation,"'0' urging them not to despair of
theirsalvation and giving them hope throughthe epitimia essential for the
expiation of theirsins.
If those who had brought about a death unintentionallysought the con-
solation of the church and redemption through penances, what did those
who were completelyinnocent of a crime seek in church? Chomatenos and
Apokaukos had three such cases between them.'02One of these incidentally
gives us informationabout a pagan custom in practice in the thirteenth
century.Two young men from the theme of Moliskos came before the
archbishop of all Bulgaria and confessed theirsin. In theirland, according
to an old custom called Rousalia,103 young people gatheredin the week after
Pentecostand went around the villages,elicitinggiftsfrom the inhabitants
in exchange for songs, dances, games, and performances.This year,during
two of their group went to a sheepfold and asked the man
these festivities,
in charge for cheese. Since he was not obliging,theyhelped themselves.In
97 Bees, "Unedierte Schriftstucke," no. 14, pp. 75-76. Apokaukos's less stringentapplication
of the law has been observed also in other kinds of cases. On this see the commentsby Marie
Theres Fogen, "Ein heisses Eisen," Rechtshistorisches Journal2 (1983), 93-94, and "Horror iuris:
ByzantinischeRechtsgelehrtedisziplinierenihren Metropoliten,"in Cupido legum(cited above,
n. 36), pp. 47-71.
98 Basilika60.39.5.
99Coll. 3, Nov. 10; Zepos, JGR 1:271.

100Pitra, no. 129, col. 530. She seems to have been very conscientiousfor she had already
performed penances for two years before coming to Chomatenos. She visited her spiritual
doctor also on another occasiorito confess to her four marriagesand to ask for the appropriate
penances: Pitra,no. 9, cols. 47-50.
101Pitra,no. 131, col. 534; I1o. 129, col. 531.
1()2 Chomatenos: Pitra,no. 116, cols. 499-502 ("not guilty");no. 120, cols. 509-12 ("in no way
perpetratorsof a killing"j.Apokaukos: ed. Bee-Sepherle (as above, n. 84), no. 114, pp. 241-42
("innocent,""freed from [the suspicion ofl a killing").
103 See W. Puchner, "Die 'Rogatiengesellschaften':Theriomorphe Maskierung und adoles-
zenter Umzugsbrauch in den Kontinentalzonendes Sudbalkaniraumes,"Siidost-Forschungen 36

(1977), 144 ff.

the scufflewhich ensued, one of the two,Chryselos,hit the shepherd witha
stick.The shepherd pulled a knifeand stabbed Chryselos,who died almost
immediately.The two young men came to the archbishop
to learnifanyresponsibilityis impartedto themalso fromthissin,as it had been

reconstructed,and, iftheyarejudged responsible, theyaskedto receivetheeccle-
siasticalcensuresforthecleansingof theirsouls.)04
These men came, then, to clear their consciences,but, it is certain from

the archbishop's response in this and slinilarcases, theycame also to clear
theirnames. One was guiltyuntil proven innocent,and civilofficialsmoved
quickly.The priestDragomiros who appealed to Chomatenos explained that
more than fivemonthsago a death had occurred in a quarrel between some
servantsof the sevastokratorand inhabitantsof the village. Some people im-
plicated him in the killingand although he declared himselfto be innocent,
and had a clear conscience in the matter,all his possessionshad been confis-
cated by the fisc.'05
Several other cases show how easily one could be implicated; death from
natural causes might be attributedto a beating the deceased had received
weeks before he fell ill. This had occurred in the cases of Radoslavos and
Stanes discussed above. Another case before Apokaukos had long-termcon-
sequences for the reputed killer. A priest who had lost his way one night
came across a youth on the road and asked him for help. The lad, either
because he was weak from malnutritionor for some other reason, did not
respond. The priest,desperate not to have to walk alone in the dark, took
his walking stick and hit the boy. His death twenty-eightdays later was
attributedto the beating. Even though the priest'sresponsibility
forthe death
was far from certain, he was suspended and was still paying the penalty
fourteenyears later when the case was referredto Apokaukos.106
The dangers which faced a person whose naynewas maliciouslyor other-
wise connected witha death are implicitin the statementsof warningwhich
the bishops included in their decisions. The one writtenby Apokaukos on
behalf of the innocent Stanes is typical:
104
Pitra, no. 120, col. 510. Although Chomateniosconsidered the men to be innocelntof a
killing,he assigned penances to themfortheirparticipationin the Rousalia festivities (cols. 510-
11). The severityof these epitimia (three years exclusion from holy communion, fasting,and
prostrations)shows the extent of the church's disapproval of this "abominable and worthless
deed." See Balsamon's comments on canon 62 of Trullo: "the so-called Rousalia which take
place after Easter in the outlyingregions in accordance with a bad custom" (Rhalles-Potles,
2:450).
105
Pitra,no. 76, cols. 325-28.
106 A. Papadopoulos-Kerameus, "KFxtQvcxcix: 'Anoz6xc(og xCot
'IWo&vvTg F&bO'Cyog BocQ8olv1g,"
Vremennik
Vizantifskii 13 (1906), 335-5 1. Suspension was the penaltyforpriestsguiltyof a killing;
see canon 32 of Saint Basil: Rhalles-Potles,4:173-75. See also the patriarchalregister(1059):
Grumel,Regestes,no. 888; Darrouz6s, Regestes,nos. 2978 and 2986 (1394-95).

By the Holy Spiritwe exhortthe localpraktornot to inflict
anyabuse or damage
on Stanesnor,as is a praktor'sgreedyway,to prescribeto himpunishment for
murder,unlesshe wishesto be subjectto ecclesiastical
penances....107
The arbitraryactivityof civilofficials'08hinted at in the bishops' warnings

theirthreateningand damaging behavior in cases of killingwas not, it
must be stressed, specific to the political conditions of thirteenth-century
Epiros. There is sufficientevidence fromother timesand places to show that
thisbehavior was the norm. Referencesto the rapacityof officials(archontes,
appear with the frequencyof a topos in imperial legislationfrom
praktores)
Justinian Andronikos 11.109For Manuel's reign,too, in addition to his owii
to
novel there is the testimonyof Michael Choniates, metropolitanof Athens,
who claimed thatunder Manuel the murdererescaped fromjustice while the
man with unsoiled hands paid the penalty."10Other nonlegal sources also
pointto the precarious nature of the workingsofjustice. In the tenthcentury
Theodore, bishop of Nicaea, wrote to the eparch of Constantinopleasking
him to have pityon his ward, a young studentin the capital who was being
held by the eparch in connection with a killing. He had been ill-treated,
mocked, dragged about, and threatenedin interrogation.Should the boy be
held responsible for the killing,asked the bishop, simplybecause he had
been left on the scene while the guiltyparty had run away? Could he be
blamed for not coming to the aid of the victimwhen he was one among so
many and had neither the authoritynor the strengthto control a crowd
drunk withanger and wine?"'
A letter of the patriarch Gregory of Cyprus in the second half of the
thirteenthcenturyreveals a more extreme case of implicationby proximity.
One nighta husband discovered his wifein the company of her lover in the
galleryof the church at Ainos in Thrace. In desperationthe adulteressthrew
herself from the balcony, puttingan end to her life. The propertyof the
bishop of Ainos was seized in connectionwithher death."2
Seen against this background, it would seem that Chomatenos and Apo-
107 Bee-Sepherle (as above, n. 84), no. 114, p. 242.

108 The word most often used in this connection, epereia,which denotes an irregular levy
imposed bycivilofficials,was synonymouswith"harassment":Franz D6lger,BeitragezurGeschichte
derbyzantinischen Finanzverwaltung(Leipzig and Berlin, 1927; repr. Hildesheim, 1960), p. 61. It
was this kind of persistentannoyance which was behind one of the murders in Chomnatenos's
collection: Pitra,no. 118, and p. 522 above.
109The irregularactivityof officialsin connectionwithmurder cases is most explicitlystated
in the chrysobullswhich Andronikos II granted to bishopricsand monasteries.Civil officials,
acting under the pretextof exacting the "legal" penaltyfor murder,were extractingthis from
people not guiltyof a willfulkilling,and theywere imposinga collectivepenaltyon inhabitants
of the village where the crime had been committed.Justiniancomplained of similarbehavior in
Nov. 134. For a detailed discussion of the evidence, see Tourtoglou, pp. 51-75.
110 Ed. Lampros (see above, n. 32), 1:177, 11. 13-26 (writingin Andronikos I's reign and
contrastinig it withManuel's).
IJ Darrouzes, Epistoliers byzantinsdu Xe siecle(Paris, 1960), pp. 304-5.
112 S. Eustratiades,"'EntuoXccdL,"'ExxA)tjutartx06Pd4ogo5 (1910), Ino. 174.

kaukos provided a much-needed serviceforthoseinnocentof a crime.People
who were able to establish their innocence in church could leave with a
document in hand containing their confession,the verdict,and a warning
withthe penaltyof excommunicationto anyone who mighttryto harm them
in any way.The contentsof thisdocument,the semeioma,statingthe bearer's
innocence and protected status,could have been publicized locally.At least
in the case of the young men from Moliskos the semeioma included the
instructionthatit should be given to the local bishop to be read out in church
for the informationof civil authoritiesand inhabitantsof the area."l3 This
was a relativelyquick form of justice. Its efficacy,one can only surmise,
depended on the authorityof the issuingbody; the higherthatauthority,the
more protectionfor which one could hope.
But what about the guilty?Was the church tryingto protectthem as well
as the innocentfromthe punishmentof the law,as Manuel Komnenos's novel
indicates? The records of the cases which came before Chomatenos and
Apokaukos show differentapproaches. Chomatenos offeredthe protection
of the church only to the completelyinnocent and to a person involved in
an unintentionalkilling. It was only in these cases that he explicitlystated
the church's "acceptance" of the person, proclaiming his protected status
("refugee") in the document whichincluded the warningto civilofficialsand
was given "in surety.""4 Chomatenos interpretedasylum strictly, as had Jus-
tinian,for the innocent and the unintentionalkiller.His colleague Apokau-
kos, on the other hand, provided not only such people but also those he
judged to be willfulkillerswithletterscontaininga warningto civilofficials."15
He appears to have had a more lenient attitudeto the problem than Cho-
matenos and this practice, together with the less exacting epitimia he as-
signed, would seem to correspond to the ecclesiasticalabuses of which the
emperor Manuel complained.
But who exactlywere the "guilty"to whom Apokaukos and perhaps other
churchmenof the thirteenthcenturyand earlier saw fitto extend the pro-
tectionof the church?The cases show thatthese were people responsiblefor
spontaneous attackswith staffsor sticks,"6 the most common and constant
"3 Pitra,no. 120, cols. 511-12.

1"4 "Innocent": Pitra,no. 116 (wronglylabeled "unintentional[akousios] killer"in the heading)
and no. 120. "Unintentionalkiller":no. 131. Chomatenos had one case of willfulkilling(Pitra,
no. 118) and one of premeditated(Pitra,no. 121).
115Apokaukos had four cases of willfulkillingand one of an intermediatecategory,"nearly
by the manuscripts.
willful."In twoof these fivecases the end of the texthas not been transmitted
It is thereforenot possible to know whethertheycontained warnings.In two of the remaining
three cases Apokaukos included a warningstatement:for Xenos, who killed a man witha stick
(see above, p. 521 and n. 62), and for the three men, two of whom beat a man to death with
staffswhile the thirdstood and watched (above, p. 525 and n. 78). He did not, however,issue
a protectivestatementwithhis decision on Kaliges, the fatherwho killed his son witha stone in
a familyargument (above, p. 523 and n. 67), and cannot thereforebe said to have protected
willfulkillersindiscriminately.
116 This seems to be the general impressiongiven also by Westerncases. See R. F. Hunnisett,
The Mediaeval Coroner(Cambridge, Eng., 1961), p. 31: J. B. Given, Societyand Homicidein

Thirteenthl-CenturyEngland (Stanford, 1977), pp. 188-90.

companions of the shepherds, swineherds,and stewards involved in the
assaults."17 The attackswere provoked by trespassingon property- always
the propertyof a master or superior - or by insultsto personal honor."18
The assailant was thereforeoftenacting in defense of another's propertyor
honor. In other words, there are no outlaws among Apokaukos's "guilty,"
nor crimescommittedfurtivelyor withpremeditation.
This picture of asylum for willfulkillers is confirmedby the eleventh-
centurycases in the Peira. Among these also there are neither notorious
criminalsnor people responsible for premeditatedattacks.Also in common
withthe guiltywho came before Apokaukos is the statusor position of the
willfulkillersin the Peira: they were themselvespowerless,withouttitleor
rank. In fact theywere anonymous: theirnames have not been included in
the summariesof the case historieswhich the compiler made."19They were
the henchmen or followersof men of position: the men of a manglavites, the
slaves of a kouratorof Hagia Sophia.'20
The powerful,then, are no more in evidence as assailantsin asylumcases
of the eleventh and thirteenthcenturies than are outlaws. Could this be
because the powerfulused the courts to settledisputes while those without
authority,withlittleor no access to the courts,resortedto violence?'2'
The evidence points to another answer. It shows convincinglythat self-
help was the norm at all levels of societyand at all times,regardless of the
state of the central authority.It was as common in the tenthcenturyin the
reign of Constantine VII'22 as in the thirteenth,in the decentralized Latin-
occupied empire.123 The powerful, however, committed acts of violence
through the members of their household, their servants,slaves, or follow-
ers,'24and it was these dependents who sought the protectionof the church,
117 This is much the same as the modern evidence for the same area and similarcommunities:
J. K. Campbell, Honour,Familyand Patronage(Oxford, 1964), pp. 193-99 and 201-2.

118 The cases in defense of honor were related to attackson the order (taxis)of the household
(oikos)or family:a paroikos spoke insolentlyto a pronoiar (Apokaukos,as in n. 63), a son insulted
his mother (Apokaukos, as in n. 78), and a servant swore at the dinner hosts of his master
(Apokaukos, as in n. 76). For a discussionof "honor" in Byzantium,see Paul Magdalino, "Honour
among Romaioi: The Frameworkof Social Values in the World of Digenes Akritesand Kekau-
menos" (forthcoming).
"9 See the commentsof Oikonomides (cited above, n. 38), p. 180.
120
Peira 66.25 and 27.
121
See the comments by Simon, Rechtsfindung, p. 10, on the financialand also social and
psychologicalimpedimentsto use of the court of the Hippodrome for some classes.
122
See the case of the protospathariosMichael, administratorof a pronoia of imperialestates,
who had to contend with neighboring marauders, the Mavroi, who constantlyharassed and
robbed the poor on the boundaries of the imperialestates."What does he do? With a crowd of
people and by heavy attackhe attemptedto check theirunjust assaults . . .": VitaS. Pauli Iunioris
in monteLatro,ed. H. Delehaye in AnalectaBollandiana 11 (1892), 139.
123 The case of Taronopoulos, Stratiopoulos,and Salagares, whichcame before Apokaukos in
1228, is the best example: see above, p. 524, and the analysisby Fogen (cited above, n. 73).
124 The Peira cases, to a much greaterextentthan the bishops',give evidence for the collective
nature of the assaults. They provide confirmationof the strengthof ties of the extended
household, observed also in other contexts.See Paul Magdalino, "The ByzantineAristocratic
Oikos," in The ByzantineAristocracy, IX to XIII Centuries,ed. M. Angold, BritishArchaeological
Reports 221 (Oxford, 1984), pp. 92-111. See also n. 118, above.

for theyhad no other source of help. The powerful,on the other hand, did
not feel themselvesto be in danger fromthe law. The followingcase from
the Peira presentsa common situation:
A womanbroughta case of murderand it was as follows,A kouratorof Hagia
Sophia proceededagainstsomeone,in orderto destroyhis dwellingand banish
him,sincehe wasa soldier,fromtheecclesiastical
property.The eviction
wascarried
out bya crowdof people'25and as he was beingpursued,he woundedone of the
slavesof thekourator, Then thetwoslavesmanagedto bringhimdown
notfatally.
fromthe buildingand he fledon a horse.They chasedhim,whilethe kourator
followed, them,sayingto hisslaves,"Boys,lethimdie."The manwho
encouraging
was beingpursuedfounda [boundary]wall and threwhimselfonto it fromthe
horse.He was caughtbytheslavesand killedbytheirswords.'26
For the victimsof the powerfulthe church had understanding.It appears
that a selectiveprocess was at work by which Apokaukos and other church-
men also, it can be surmised,created a pardonable categoryof willfulkiller
forthose guiltyof spontaneous assaults in the serviceof othersor in defense
of their property- not only slaves but also freemenwho were vulnerable
because they had no power or authority.'27They were the ones who were
victimizedby civil officials.Besides, in many,if not most,of these cases, the
assault would not have led to a death if the wound had been properly
treated.'28This must have been an additional considerationfor the church-
men who extended protection.
These were not the most heinous of crimes.But also fora more important
reason the church offered its protection.As Apokaukos explained in his
warningto civilofficials,"[It is] neithercorporal punishmentnor the confis-
cation of propertywhich expunges spiritualerrors from the murderer but
the keeping of the prescriptionsand the contritionof the heart and the tear
fromthe eyes."'29 For the church,repentance and expiation of the sin were
the only means to redress the wrong,to "cleanse the foulnessof the killing."
The essential signs of true repentance were a confessionmade of one's own
free will which brought to light a previouslyunknown crime'30 and the
conscientiousobservance of penitentialacts.
125
The text'syEra'7roAti6v'by citizens'should probablyread iE1a' 7oAA6'v'by many people'.
126 Peira 66.27.
127 See n. 115, above, for the distinctionApokaukos made. For evidence of a selectiveattitude
on the part of English criminal trialjuries in sanctioningcertain kinds of homicide in the

thirteenthand fourteenthcenturies,see T. A. Green, VerdictAccordingto Conscience(Chicago
and London), pp. 28-102.
128 This can be inferredin two cases beforc Apokaukos where the assault and death froma
blow to the head were separated by several days: Petrides,"JeanApokaukos," no. 6, p. 8 (twelve
days); no. 15, p. 19 (two days). In the case of Zoe it is clearlystatedthather servantdied because
the wounds fromhis amputation were not given proper attention:Pitra,no. 129, cols. 529-32.
129 Petrides,"Jean Apokaukos," no. 14, p. 19.
130 The voluntaryaspect of the confessionand its revelationof an unknowncrime are the two
factorsstressedin the canons (Gregoryof Nyssa,canon 4: Rhalles-Potles,4:309-10; the patriarch

Nikephoros,canons 29, 30: Rhalles-Potles,4:430) and repeated by Constantinein his novel on
asylum (Coll. 3, Nov. 10: Zepos, JGR 1:231) and Garidas in scholion 4 to Basilika60.39.3. Since
the contritionshown by the sinner is a sign of repentance and an importantfactor in the

The observance of the penitentialacts could also contributeto the resto-
ration of the killer'srelationswithinthe community,for the penances were
to be performed by the killer in public in the very communitywhere the
killinghad occurred. These consisted of a plea for forgivenessin frontof
the church and prayersoutside the church.The killerstood before the door
of the church with uncovered head and cried out to those entering and
leaving,"Pray for me and forgiveme, the criminal."He also declared his sin
outside the church when the liturgywas in progress.'3' Such behavior, it
would seem, would have had a significant impactin thatface-to-facesociety.'32
Althoughthere is no evidence to show how effectivea formof rehabilitation
thiswas, equally there is no evidence for blood vengeance.'33
But the church was not alone in considering protectionappropriate for
some guiltypersons. Kekaumenos, writinghis "Gentleman'sCompanion" in
the eleventhcentury,advised provincialaristocrats,
Do notaccusean innocentperson,eitherin a criminalmatteror in a civilone. But

whydo I say"innocent"? Not evena guiltyperson.Ratherguardand shelterhim,
ifitis notof coursea questionof harmto theemperoror manyothers.'34
From this statement,as from the followingmade in another context,it is

clear that Kekaumenos also distinguishedbetween degrees of guilt; to some
of these people it was rightto give protection,perhaps because one could
not have confidencein the workingsofjustice. Those who were reallyguilty
seemed to get off.He remarked,"I have seen manyinnocentpeople brought
tojudgment, while the guiltyhave been declared innocentby givingmoney."
He advised provincialjudges, "If a killingoccurs, do not let one person pay
the penalty for another, but only the person who dared to commit the
35 This protectiveattitude towards some "guilty"people seems re-
crime."'
markable in a man whose advice throughoutis to "play it safe."'36 We can
assignmentof penances, the semeiomata v'eryoftencontain a descriptionof the emotional state

of the sinner: for example, "withtears and lamentationDraganos today made the confessionat
hand" (Pitra, no. 131, col. 533); "Constantine related these things weeping" (Petrides, "Jean
Apokaukos," no. 15, p. 20).
13' These public penitentialacts are described in the semeiomatagiven to the confessedkillers.
The lengthof time over whichtheywere to be performedvaried accordingto the nature of the
case: see Strazzeri(cited above, n. 59), pp. 342-51.
132 For public scenes of humiliation,see Magdalino, "Honour among Romaioi."
133 If it is true that there were few vengeance killings,it is not clear whetherthis should be
attribujted to the efficacyof the penitentialsystemand the church'sprotection,the use of private

settlements,or the nature of the familyand the number of unmarried males. For the last as a
limitingfactor,see Campbell, Honour, Familyand Patronage,pp. 193-99. It is questionable
whetherthe exile of the killerplayed a part as a means of avoiding furtherkillings.There is no
evidence fromthe bishops' cases that exile was envisaged. See also above, pp. 518-19.
134 B. Wassiliewskyand V. Jernstedt,CecaumeniStrategicon (St. Petersburg,1896; repr. Am-
sterdam, 1965), p. 50, 11.7-11; ed. G. G. Litavrin(Moscow, 1972), p. 218, 11.7-12.
135 Wassiliewsky-Jernstedt, p. 7, 11.4-7; ed. Litavrin,pp. 128, 1. 27-130, 1. 1.
136 Alexander Kazhdan and Giles Constable,Peopleand Powerin Byzantium (Washington,D.C.,
1982), pp. 26-28.

thereforebe certain that he is not here voicingan idiosyncraticopinion but
one which his peers also held.'37
The evidence presented above shows that there were people both within
and outside the church willing to shelter those guiltyof a killing,as the
emperor Manuel complained in his novel of 1166. It is also evident,however,
thatneitherthe attitudenor the practicewas new in Manuel's time.It is even
possible that asylumwas accepted by other emperors as providinga solution
for certainkinds of cases. Why then did Manuel attackit so vehemently?
Firstly,it is possible that the attitudeexpressed in the novel on murderers
was dictatedby considerationsof the emperor'srelationshipwiththe church.
Manuel's Justinianicstylewithregard to the churchhas been remarkedupon
in other contexts; the novel on murderersis no exception. In it he literally
reaffirmsJustinian'sstatementthat asylum is intended not for those who
commit injustice but for the victimsof injustice. He adopts a position of
defender and protectorof the church'slaws in his pronouncementson what
is and what is not canonical, and he informsthe church how it should go
about applyingitscensures to the killerswho come seekingasylum.The tone
and the message are in keeping with other legislationof the period and
conformin general to the emperor's styleof patronage. In the other laws
promulgated at the same time,in March-April of 1166, the emperor dem-
onstrated his competence in canonical and theological matters. The best
known of these, the edict on a doctrinal question carved on marble and
exhibited in Hagia Sophia, expressed the emperor's solution to a problem
whichhad been discussed in synodal sessions led by him.'38
Although the desire to project himselfas an emperor in firmcontrol of
the church undoubtedly played a role in the novel's formulation,the possi-
bilitycannot be ignored thattherewas in Manuel's timeboth a growthin the
number of cases of asylum and a leniencyin the church's treatmentof the
cases. In the absence of case historiesfrom the twelfthcentury,it is not
possible to demonstrate this point for certain. However, there are some
indicationsthat Hagia Sophia experienced at thattimean increase in activity
and a growthin importanceas a place of asylumfor murderers.Firstof all,
virtuallyall the evidence for the church as a place of asylum,and the pro-
tekdikos'sfunctionswithregard to this,dates fromthatcentury.'39Further-
more in the last decade of the centurythe protekdikoswas promotedto sixth
137 See the comments by J. Haldon, "Everyday Life in Byzantium: Some Problems of Ap-
proach," Byzantineand ModernGreekStudies10 (1986), 51-72, esp. p. 67.

138 Macrides, "Justice,"pp. 99-102 and 204; Paul Magdalino, "The Phenomenon of Manuel
I Komnenos," Byzantiumand theWest,Ninthto Thirteenth Centuries, ed. J. D. Howard-Johnston

(forthcoming1988), p. 185.
139 See pp. 514 and 515 above and nn. 23 and 33. By the fifteenth centurythe Great Church
could be identifiedso completelywith the treatmentof killersthat an anonymous scholiastto
the formulapublished by Pavlov (cited above, n. 34) found it necessaryto write,"Know thatthe
holy canons allow all bishops to prescribepenances for the killerand to correcthim according
to the prescriptionsof the fathers.Therefore he who does not send the killer to the Great
Church does not do wrong" (p. 157).

rank in the ecclesiasticalhierarchy,'40a rise in position which could well be
related to an increase in the number of cases whichhe handled togetherwith
the ekdikeion. In the same period, the late twelfthcentury,a new type of
seal appears for the ekdikeion,evidence whichseems to accord well withthe
protekdikos'srise in statusand importance.'4'
In addition there are indicationswhich seem to corroboratethe emperor's
descriptionof the church's lenient treatmentof cases of killing,which con-
tributedto its popularityin that area. These derive from Theodore Balsa-
mon's commentaryon the canons. On canon 43 of the council of Carthage,
on penitentsand the authorityof bishops to regulate penances, Balsamon
says,"Note the contentsof thiscanon, then, for the killerswho come to the
Great Church and seek to have theirpenances moderated."' 42 The statement
implies that it was a common enough occurrence and, taken togetherwith
the specificcase fromManuel's reign which,according to Balsamon, led the
emperor to legislateon asylum,itdemonstratesthattherewas some substance
to the emperor's strong stand against the church's "inappropriate" le-
niency.'43A furtherconsiderationin evaluating Manuel's attitudeis the kind
of killerwho went to the Great Church fromthe provinces.Balsamon's note
on killerswho sought to have their penances reduced indicates that these
were people guiltyof notorious crimes'44and thereforenot comparable to
the guiltywho came before Chomatenos and Apokaukos. The church would
deny no one hope of salvation.
Taken together these scattered references confirmthe Great Church's
influenceand power in the treatmentof killersin the twelfthcentury.It was,
it seems, on a scale and of a kind not demonstratedby the provincialcases
of Chomatenos and Apokaukos. Moreover the church's activityin criminal
cases is matched by the vitalityand central importancewhich it manifested
also in other areas in the same period.
If the large role of the church surprises us, this says a great deal about
140
George Tornikes, oration for the patriarchGeorge, in Darrouzes, Offikia, pp. 534-36. The
fact that Balsamon, writinghis commentaryon the canons in the second half of the twelfth
centuryand a treatiseon the relativepowers and rightsof the protekdikosand chartophylax,
does not mention the protekdikos'sactivitiesin this area, should be attributedto the rivalry
between his officeof chartophylaxand that of protekdikos.See Ruth Macrides, "Nomosand
Kanon on Paper and in Court," Churchand Peoplein Byzantium, ed. R. Morris (forthcoming).
141 V. Laurent, Le corpusdes sceauxde l'empire
byzantine,5 (Paris, 1963), pp. 95-96 (no. 115).
142 Rhalles-Potles,3:409.
143 The semeiomata instructthe penitent sinner to return to the church at the end of the
penitentialperiod to receive absolution,but the case of the soldier mentionedby Balsamon and
Manuel's complaintin the novel about the "lettersof pardon" implythat the church was giving
absolution prematurely.If so, the "lettersof pardon" are not the documents we know from
Chomatenos and Apokaukos but lettersof absolution of which no examples survivein cases of
killing.These letterscould be the earliest evidence for the Eastern church's grantingof indul-
gences, a practicewell documented fromthe sixteenthcenturyon: see Philip Eliou, "X'UYXWQo-
XcLQTLa,"T& 'IrTotxea 1 (1983), 35-84, for the later evidence.
144 Rhalles-Potles,3:409: "Those who do not come to the church voluntarily but because of a
publicumor criminaloffense,a notoriousor well-knownone, whichcould throwthe church into
disorder because of the exaggerated nature of the offense,we ought to receive outside the en-
trance,thatis,outside thechurch,and theremake the gestureof (forgivenessfor)repentance...."

our expectationsof a societywitha continuous traditionof Roman law and
civilcourts. For, as the evidence presentedabove shows,the role of the state
in cases of killingshould not be overestimated.Homicide was never exclu-
sivelywithinthe public domain. Cases of killingwere broughtbeforethe civil
courtsnot so much by civilofficials,as far as can be ascertained,as by private
citizens,members of the victim'sfamilyanxious to avenge the death and
demonstrate their right to inherit. Many cases never reached the courts
because of the private settlementswhich were arranged by the parties in-
volved. Self-helpwas the norm, not settlementin court. Laws were promul-
gated and could be ignored, but the one enduring aspect of the law was the
irregularactivityof civilofficialswhose overzealous behavior,beyond the call
of public duty,was a source of danger and insecurityto the poor and un-
protected.If theyfellinto theirhands theywere finished,but withthe church
theyhad a future.
StudiesandModernGreekin theDepartments
in Byzantine
R. J. Macridesis HonoraryLecturer
ofMediaevalHistoryand Greekat theUniversity ofSt. Andrews,
St. Andrews,
Fife,Scotland
KYJ6 9AL.


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Medieval Academy of America

Killing, Asylum, and the Law in Byzantium

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One of the distinguishingcharacteristicsof Byzantium,it is well known,in

' Basilika60.39.1, 3, 5, 13, 17 and 60.51.15, ed. C. G. E. Heimbach,Basilicorum libriLX (Leipzig,

18-28 (hereaftercited as Tourtoglou).

SPECULUM 63 (1988) 509

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CONSTANTINE VII's LAW ON ASYLUM FOR MURDERERS

The church's right to grant asylum or refuge to all orthodox Christians

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frees: Rhalles-Potles,3:508. 'According to him, slaves' privilegeswere recorded in the "book"

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MANUEL KOMNENOS's NOVEL OF 1166

What effectdid Constantine'slegislationhave - a law whichmade conces-

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HAGIA SOPHIA AND ASYLUM

It is strikingthat the evidence for Hagia Sophia as a place of asylum is

mended for saving people from capital punishment:Basil of Ochrid, EpitaphiosLogos,in V. E.

Programm desK. AltenGymnasiums zu Wiirzburg 190611907 (1907), 20, 24-25.

28 Choniates' account of Isaac's act conformswithdescriptionsof the firststage in penitential

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Offikia,p. 534, 11.19-22.

zashchitutserkvi,"Vizantiaskia Vremennik 4 (1897), 155-59 (158-59, text).

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THE CASE HISTORIES

An attemptto answer this question immediatelymeets with the problem

35 Commentaryon canon 74 of Saint Basil: Rhalles-Potles,4:236-37; V. Grumel, Les regestes

des actesdu patriarcatde Constantinople,

inces,"Cupidolegum,ed. Ludwig Burgmann,Marie Theres Fogen, Andreas Schminck(Frankfurt,

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37 For referencesto the protekdikos'ssekreton:Balsamon, commentary on canon 82, Carthage

in the Peira, see Dieter Simon, Rechtsfindungam byzantinischen (Frankfurt,1973), pp.

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51 Basilika 11.2.1; 60.53.1. See the discussion by Tourtoglou, pp. 38-43.

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54 Simon, Rechtsfindung, pp. 10-12.

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The youngmanin theserviceof Petomenos, eitherbecausehe waslicentious,

In another case an unnamed pronoiar explained to Apokaukos that he

Embittered byhiswords,fortworeasons- because,althoughI had notaddressed

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TheodoreVodinopoulos,fromMikraVagenitia,thevillageof Vrestianes, came to

64Petrides,"Jean Apokaukos," no. 6, pp. 7-8.

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she had sufferedmany cruel acts fromthisman. She thereforedeterminedto part

In a case of a killing within a familywhich came before Apokaukos a

Justas the documents which contain the confessions,the semeiomata,re-

representationof women in Chomatenos's acts,see Gunter Prinzing,"Sozialgeschichteder Frau

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69 Pitra,no. 116, cols. 499-500. Basilika60.39.1.3 is cited.

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wasjudged tobe nota willful

Apokaukos's statementhere approximates the descriptionof the category

killing(hekousios)could be committedin anger in the heat of the momentor withpremeditation.

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She was seen to makeherconfessionwitha brokenheartand a humblespirit,and

Alwaysand all thetime,day and night,he shouldbothchecklaughterand bridle

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He said itwas one of thefeastdays,and [thisday]foundhimwiththeflockwhich