4.1. Psellos’ oration on the miracle at Blachernae is a command performance requested by the Emperor Michael VII Doukas in the summer of 1075 (5.29:752–757). Psellos examines a recent legal case at some length and in some detail, dividing his narrative of events into two separate episodes so that he may explore the philosophical and legal questions raised by particular aspects of the court system and of the final court decision. By combining the two episodes, we may reconstruct much of this remarkable case.

4.2. As a prologue to his narrative, Psellos describes an inexplicable phenomenon that regularly occurred at the Church of the Blachernae in Constantinople, where a lavishly decorated curtain hung in front of an ancient icon depicting the Virgin (5.3–5.5:100–163). Every Friday at sunset the church was cleared of all clergy and lay people, who waited in the courtyard while certain unspecified rituals were performed. At the conclusion of these rituals, the doors reopened, and the crowd reentered to observe the miraculous lifting of the curtain in front of the icon. Those present witnessed the form of the Virgin change and appear animate or “ensouled,” as Psellos says (5.4:138), establishing the real presence of the blessed Virgin at the moment of her miracle. Forestalling skeptical protests that some unknown natural process was the mechanical cause of the phenomenon, Psellos observes that the miracle was unlike a regular and predictable natural event such as an eclipse because the miracle occurred usually and predictably on Friday—but occasionally and unpredictably, it might cease.

4.3. Having established the nature and the validity of the Virgin’s miracle at Blachernae, Psellos describes how this miracle figured in a court case. At issue was a mill in Thrace and the stream that powered it (5.6–5.11:164–271). Both the Constantinopolitan Monastery of Kallios and the general Leo Mandalos claimed exclusive rights to the mill, battling one another in a succession of lawsuits without any final and conclusive resolution. At last, the judge of the Thracian theme Gabriel Tzirithon delivered a verdict that required the two contending parties to share equally in controlling the property (5.7:193–194) and established that neither could control it exclusively. Although Psellos does not describe the rationale behind Tzirithon’s decision, his verdict displeased both parties and especially enraged the general, who continued to quarrel bitterly with the monastery until the two opponents managed to reach a paradoxical agreement (5.8:210). They agreed to follow the legal precedent for designating a special judge to resolve the case; their judge, however, would be the Virgin, and her verdict would be delivered through the miracle at Blachernae. Under their binding agreement, the two parties would meet at daybreak in the Church and individually present their case. If the “usual” miracle occurred at this unusual time, the general would win exclusive rights to the mill; if the miracle did not occur, the monks would be victorious. Not surprisingly, the contenders waited, but the curtain remained in its usual position in front of the icon until the monks ostentatiously began celebrating their victory, and the general surrendered—at which point, the curtain miraculously lifted, and the general triumphed! Reluctantly and with bad grace, the monks accepted defeat. Controversy over the verdict evidently continued, however, for Psellos explores the argument that the Virgin had expressed approval of the monks’ position by timing her miracle to coincide with the general’s surrender; he rejects this contention because the timing of the miracle had no place in the original agreement about the special court and the special judge (5.12–5.13:272–323). Before revealing the final episode in this dramatic story, Psellos once again confronts the monks’ protest and once again rejects it (5.23:612–633), then notes that the judge John Xeros issued to the general official documents finally and decisively confirming the decision of the Virgin as special judge (5.24:643–649). To express his gratitude, the general returned to the Virgin’s icon at the Church of Blachernae with his documents and prostrated himself before the icon. In sudden and miraculous confirmation of the general’s victory, the icon’s curtain lifted yet again and repeated for him the unusual occurrence of the Virgin’s “usual” miracle (5.24:650–659).

4.4. The case of the powerful general and the clever and persistent monks presents compelling moments of confrontation and of suspense as well as a plot enriched by twists worthy of a Euripidean drama, for the Mother of God herself takes the role of the classical deus ex machina, resolving a seemingly insoluble dilemma not once but twice. Moreover, the chief actors and supporting cast represent important persons prominent at the highest levels of Byzantine society: the general Leo Mandalos (5.6:175), the judge in charge of Thrace Gabriel Tzirithon (5.7:188–189), the final judge in the case John Xeros (5.24:644–645) and representatives of the wealthy Monastery of Kallios in Constantinople (5.6:176). It is not surprising that the Emperor Michael VII Doukas (1071–1078) heard of this case, found it intriguing, and sought a full account of the matter from Psellos, exploring the particulars of the case and their implications in frequent discussions so detailed that the emperor finally became, as Psellos says, a virtual eyewitness to events. Michael VII then pressed Psellos to explicate the matter fully in what Psellos calls an “extemporaneous” oration (5.19:471–481).

4.5. Psellos’ representation of himself as the close confidant and intellectual mentor of Michael VII Doukas is consistent with the relationship he describes in the work for which he is best known, the Chronographia. Psellos’ Chronographia is a lively and highly personal account of the colorful figures that ruled the Byzantine Empire in the eleventh century, concluding with an extraordinarily favorable description of Michael VII (Chronographia VII:1–11). [1] Psellos tells us that he served as tutor to Michael, who came to the throne in his early twenties and even as emperor continued to look to his intellectual mentor for guidance with deep respect and affection (Chronographia VII:8). Psellos commends his prize student’s exceptional personal moderation, political acumen, and humanistic learning, noting in particular his love of literature, sensitivity to style and diction, and mastery of all aspects of philosophy (Chronographia VII 4.1–17). One slight reservation, however, creeps into this fawning encomium: “Not having made a special study of legal matters,” says Psellos, “he takes a broad view of their interpretation, and passes judgment rather in accordance with the spirit than with the letter of the law.” [2] Even in the eyes of a great admirer, therefore, Michael VII Doukas was not competent to assess the legal complexities presented in the case resolved at Blachernae by the Mother of God. For this reason, Psellos quite considerately dedicates substantial attention to an explanation of the laws relevant to the case (5.20:495–519 and 5.21: 559–611). Although in this oration Psellos does not mention any particular circumstance motivating Michael’s interest in the legal aspects of the case, I would like to suggest the possibility that the emperor anticipated or had already received an appeal of the case from one of the contending parties (probably from the monks), for in Roman law “The decision of the emperor has the force of law.” [3]

4.6. At the point in his career when Psellos prepared this oration, both his formal education and his varied and extensive experience in the courts had given him a thorough acquaintance with Byzantine law. He had studied law under John Xiphilinos, the founder of the law school at Constantinople (1046–1047), served first as an assistant to provincial judges and later as a provincial judge himself, taught law to his students, and composed legal documents and speeches for delivery in court. [4]

4.7. Byzantine civil law rested upon the Corpus Iuris Civilis, a collection of classical Roman legal texts executed under the sponsorship of the Emperor Justinian I in the sixth century and augmented by his own legislation (the Novels). Byzantium inherited the Greek version of the Corpus, applying and adapting it to the evolving needs of a changing society. At the time of Psellos, a ninth-century compilation of existing legislation in sixty books represented official and actual Byzantine law; this collection, known as the Basilika, eliminated superfluous and anachronistic material from the Justinianic corpus and incorporated more recent legislation. [5] Psellos cites in this oration the sections of the Basilika that pertain to the appointment and functions of a special judge, an accommodation to the procedures normally followed in determining the competent judge who had jurisdiction over a particular trial.

4.8. At this juncture, a brief excursus on Byzantine trials at the time of Psellos is useful. “Byzantium inherited from Rome a system of trying lawsuits that was based on the principles of a fair trial, a competent judge (prosphoros dikastes), and legality of procedure and judgment—principles that of course had to be adapted to the conditions created by the ‘absolute monarchy’ of Byzantium.” [6] The factors making a judge “competent” in a case like the one discussed by Psellos depended upon two sometimes competing criteria: the place of residence of the defendant, and the category of the parties to the suit as defined under the law. [7] Members of the clergy, of guilds, of the military and senators had the right to be tried by the magistrate in authority over them or, in the case of clergy and monks, by an ecclesiastical court. At least seven such magistrates who possessed jurisdiction to judge cases (μεγάλοι or ‘great’ judges) can be identified from legal texts; since their positions were defined by their responsibilities for administration, finance, or the military and their appointments often dependent upon some connection with the emperor, they were not necessarily expert in the law. A great (or competent) judge accordingly sat with his subordinate (μικροί or ‘small’) judges, who had no jurisdiction but were present in court and informed the great judge of relevant points of law in a case; a great judge—and only a great judge—could also delegate temporary jurisdiction in a case to another person. Although he often designated one of his own small judges, the parties in a case were permitted under to law to agree upon their own ‘special judge’ (αἱρετὸς δικαστής), as happened in the case decided by the Mother of God at Blachernae.

4.9. Under this system civil lawsuits were often protracted and, like the one described by Psellos, dragged on through “a long succession of judges” (5.7:187) because the criteria for determining a competent judge based on one of the parties’ place of residence or classification in society could be in competition with one another. In the case of the general and the monks, one party was in Thrace and the other in Constantinople. [8] In addition, while the general was entitled to trial under a military judge and the monks to trial in an ecclesiastical court, the legal system did not provide an effective procedure for successive appeals, a further factor in prolonging lawsuits. [9]

4.10. Aside from the necessity to explain the legal aspects of this case to the emperor, Psellos evidently considered it important to explicate for his imperial pupil the philosophical justification for the Virgin’s court at Blachernae. He speaks as a philosopher of broad expertise as he attempts to explicate for Michael VII how the Virgin’s actual presence could affect a material object in her miracle at Blachernae. Although the works of Plato are crucial to his thinking, Psellos also cites and paraphrases with comparable frequency the writings of Aristotle on logic, rhetoric, natural science, and ethics as well as the late antique commentaries on these works by the Neoplatonists Alexander of Aphrodisias, Simplicius, Syrianus, and John Philoponus. [10]

4.12. Throughout this long and complex work, Psellos has consistently referred to it as an ‘oration’ (logos) and has even indicated at one point that he delivered the oration at the request of the emperor himself (5.19:476–478). In closing, Psellos describes his work as representing two distinct and very different genres—it is both a panegyric oration and also a hypomnema, or an official court document that explains the judge’s rationale for his verdict. Psellos’ use of this technical legal term recalls its occurrence earlier in the oration, when he applied it to the document from the court of Gabriel Tzirithon that so displeased both the general and the monks (5.8:204–205). Psellos’ hypomnema is also, he claims, a panegyric, or an oration in praise of the Virgin (5.29:756–757). In composing his panegyric, Psellos has dared to articulate the hypomnema on behalf of the Virgin who served as a special judge through the unusual occurrence of her “usual” miracle at Blachernae. [11]