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# Nicholas v. United States (384 U.S. 678)/Concurrence Harlan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
* Dissenting Opinion White
United States Supreme Court
384 U.S. 678
Nicholas v. United States (384 U.S. 678)
Argued: April 19, 1966. --- Decided: June 13, 1966
Mr. Justice HARLAN, concurring in part and dissenting in part.
Recognizing the case to be difficult, I would affirm the Court of Appeals' decision to allow both the interest and the penalty as administration expenses. On both points, I think there are fair policy arguments which can be mustered to support either result. On balance, it seems to me that the entire period starting with the Chapter XI operation and carrying through the bankruptcy proceeding should be regarded as a continuum of court administration. See especially § 378(2) of the Bankruptcy Act, 11 U.S.C. § 778(2) (1946 ed.). From this I think it follows that interest should not be stopped when bankruptcy succeeds the Chapter XI period, and that the court-appointed trustee does fall heir to the responsibilities of the court-supervised debtor in possession to file returns.
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS and Mr. Justice FORTAS join, concurring in part and dissenting in part.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse
# Nicene and Post-Nicene Fathers: Series II/Volume VIII/The Letters/Letter 17

Letter XVII.
To Origenes.
It is delightful to listen to you, and delightful to read you; and I think you give me the greater pleasure by your writings. All thanks to our good God Who has not suffered the truth to suffer in consequence of its betrayal by the chief powers in the State, but by your means has made the defence of the doctrine of true religion full and satisfactory. Like hemlock, monkshood, and other poisonous herbs, after they have bloomed for a little while, they will quickly wither away. But the reward which the Lord will give you in requital of all that you have said in defence of His name blooms afresh for ever. Wherefore I pray God grant you all happiness in your home, and make His blessing descend to your sons. I was delighted to see and embrace those noble boys, express images of your excellent goodness, and my prayers for them ask all that their father can ask.

## Footnotes

* ↑ Placed during the reign of Julian.
* ↑ Nothing is known of this Origen beyond what is suggested in this letter. He is conjectured to have been a layman, who, alike as a rhetorician and a writer, was popularly known as a Christian apologist.
# Nicene and Post-Nicene Fathers: Series II/Volume VIII/The Letters/Letter 170

Letter CLXX.
To Glycerius.
How far will your mad folly go? How long will you counsel mischief against yourself? How long will you go on rousing me to wrath, and bringing shame on the common order of solitaries? Return. Put confidence in God, and in me, who imitate God’s loving-kindness. If I rebuked you like a father, like a father I will forgive you. This is the treatment you shall receive from me, for many others are making supplication in your behalf, and before all the rest your own presbyter, for whose grey hairs and compassionate disposition I feel much respect. Continue longer to hold aloof from me and you have quite fallen from your degree. You will also fall away from God, for with your songs and your garb you are leading the young women not to God, but to the pit.

## Footnotes

* ↑ Placed with the preceding.
* ↑ τοῦ βαθμοῦ. cf. 1 Tim. iii. 13. οἱ καλῶς διακονησαντες βαθμὸν ἑαυτοῖς καλὸν περιποιοῦνται. There seems an evident allusion to this passage, but not such as to enable Basil to be positively ranked with Chrysostom in his apparent interpretation of βαθμός objectively of preferment, or with Theodoret in his subjective idea of honour with God. Apparently the “degree” is the Diaconate.
* ↑ στολή. The technical use of this word for a “stole” is not earlier than the ninth century. It was indeed used for a sacred vestment, e.g. the sacred robe which Constantine presented to Macarius, Bishop of Jerusalem. (Theodoret ii. 27.) In Latin “stola” designated the distinctive dress of the matron, and it seems to be used with a suggestion of effeminacy.
# Nicene and Post-Nicene Fathers: Series II/Volume VIII/The Letters/Letter 172

Letter CLXXII.
To Sophronius, the bishop.
There is no need for me to say how much I was delighted by your letter. Your own words will enable you to conjecture what I felt on receiving it. You have exhibited to me in your letter, the first fruits of the Spirit, love. Than this what can be more precious to me in the present state of affairs, when, because iniquity abounds, the love of many has waxed cold? Nothing is rarer now than spiritual intercourse with a brother, a word of peace, and such spiritual communion as I have found in you. For this I thank the Lord, beseeching Him that I may have part in the perfect joy that is found in you. If such be your letter, what must it be to meet you in person? If when you are far away you so affect me, what will you be to me when you are seen face to face? Be sure that if I had not been detained by innumerable occupations, and all the unavoidable anxieties which tie me down, I should have hurried to see your excellency. Although that old complaint of mine is a great hindrance to my moving about, nevertheless in view of the good I expect, I would not have allowed this to stand in my way. To be permitted to meet a man holding the same views and reverencing the faith of the Fathers, as you are said to do by our honourable brethren and fellow presbyters, is in truth to go back to the ancient blessedness of the Churches, when the sufferers from unsound disputation were few, and all lived in peace, “workmen” obeying the commandments and not “needing to be ashamed,” serving the Lord with simple and clear confession, and keeping plain and inviolate their faith in Father, Son and Holy Ghost.

## Footnotes

* ↑ Placed in 374.
* ↑ This Sophronius is distinguished by Maran from the Sophronius, magister officiorum, to whom Letters xxxii., lxxvi., and xcvi. have already been addressed, and who is also the recipient of clxxvi., clxxx., cxcii., cclxii. Nothing else is known of him.
* ↑ Matt. xxiv. 12.
* ↑ 2 Tim. ii. 15.
# Nicene and Post-Nicene Fathers: Series II/Volume VIII/The Letters/Letter 168

Letter CLXVIII.
To Antiochus.
I mourn for the Church that is deprived of the guidance of such a shepherd. But I have so much the more ground for congratulating you on being worthy of the privilege of enjoying, at such a moment, the society of one who is fighting such a good fight in the cause of the truth, and I am sure that you, who nobly support and stimulate his zeal, will be thought worthy by the Lord of a lot like his. What a blessing, to enjoy in unbroken quiet the society of the man so rich in learning and experienced in life! Now, at least, you must, I am sure, know how wise he is. In days gone by his mind was necessarily given to many divided cares, and you were too busy a man to give your sole heed to the spiritual fountain which springs from his pure heart. God grant that you may be a comfort to him, and never yourself want consolation from others. I am sure of the disposition of your heart, alike from the experience which I, for a short time, have had of you, and from the exalted teaching your illustrious instructor, with whom to pass one single day is a sufficient provision for the journey to salvation.

## Footnotes

* ↑ Placed in 374.
* ↑ Nephew of Eusebius. cf. Letters cxlvi, clvii., and clviii.
* ↑ Eusebius was now in exile in Thrace. On this picturesque scene of his forced departure from his diocese, the agony of his flock at losing him, and his calm submission to the tyranny of Valens, see Theodoret iv. 12 and 13, pp. 115, 116, of this edition.
# Nicene and Post-Nicene Fathers: Series II/Volume VIII/The Letters/Letter 167

Letter CLXVII.
To Eusebius, bishop of Samosata.
I am delighted at your remembering me and writing, and, what is yet more important, at your sending me your blessing in your letter. Had I been but worthy of your labours and of your struggles in Christ’s cause, I should have been permitted to come to you and embrace you, and to take you as a model of patience. But since I am not worthy of this, and am detained by many afflictions and much occupation, I do what is next best. I salute your excellency, and beseech you not to grow weary of remembering me. For the honour and pleasure of receiving your letters is not only an advantage to me, but it is a ground of boasting and pride before the world that I should be held in honour by one whose virtue is so great, and who is in such close communion with God as to be able, alike by his teaching and example, to unite others with him in it.

## Footnotes

* ↑ Placed in 374.
# Nicene and Post-Nicene Fathers: Series II/Volume VIII/The Letters/Letter 173

Letter CLXXIII.
To Theodora the Canoness.
I should be more diligent in writing to you but for my belief that my letters do not always, my friend, reach your own hands. I am afraid that through the naughtiness of those on whose service I depend, especially at a time like this when the whole world is in a state of confusion, a great many other people get hold of them. So I wait to be found fault with, and to be eagerly asked for my letters, that so I may have this proof of their delivery. Yet, whether I write or not, one thing I do without failing, and that is to keep in my heart the memory of your excellency, and to pray the Lord to grant that you may complete the course of good living which you have chosen. For in truth it is no light thing for one, who makes a profession, to follow up all that the promise entails. Any one may embrace the gospel life, but only a very few of those who have come within my knowledge have completely carried out their duty in its minutest details, and have overlooked nothing that is contained therein. Only a very few have been consistent in keeping the tongue in check and the eye under guidance, as the Gospel would have it; in working with the hands according to the mark of doing what is pleasing to God; in moving the feet, and using every member, as the Creator ordained from the beginning. Propriety in dress, watchfulness in the society of men, moderation in eating and drinking, the avoidance of superfluity in the acquisition of necessities; all these things seem small enough when they are thus merely mentioned, but, as I have found by experience, their consistent observance requires no light struggle. Further, such a perfection of humility as not even to remember nobility of family, nor to be elevated by any natural advantage of body or mind which we may have, nor to allow other people’s opinion of us to be a ground of pride and exaltation, all this belongs to the evangelic life. There is also sustained self-control, industry in prayer, sympathy in brotherly love, generosity to the poor, lowliness of temper, contrition of heart, soundness of faith, calmness in depression, while we never forget the terrible and inevitable tribunal. To that judgment we are all hastening, but those who remember it, and are anxious about what is to follow after it, are very few.

## Footnotes

* ↑ Placed in 374.
* ↑ On the Canonicæ, pious women who devoted themselves to education, district visiting, funerals, and various charitable works, and living in a community apart from men, cf. Soc. i. 17, “virgins in the register,” and Sozomen viii. 23, on Nicarete. They were distinguished from nuns as not being bound by vows, and from deaconesses as not so distinctly discharging ministerial duties.
# Nicene and Post-Nicene Fathers: Series II/Volume VIII/The Letters/Letter 174

Letter CLXXIV.
To a Widow.
I have been most wishful to write constantly to your excellency, but I have from time to time denied myself, for fear of causing any temptation to beset you, because of those who are ill disposed toward me. As I am told, their hatred has even gone so far that they make a fuss if any one happens to receive a letter from me. But now that you have begun to write yourself, and very good it is of you to do so, sending me needful information about all that is in your mind, I am stirred to write back to you. Let me then set right what has been omitted in the past, and at the same time reply to what your excellency has written. Truly blessed is the soul, which by night and by day has no other anxiety than how, when the great day comes wherein all creation shall stand before the Judge and shall give an account for its deeds, she too may be able easily to get quit of the reckoning of life.
For he who keeps that day and that hour ever before him, and is ever meditating upon the defence to be made before the tribunal where no excuses will avail, will sin not at all, or not seriously, for we begin to sin when there is a lack of the fear of God in us. When men have a clear apprehension of what is threatened them, the awe inherent in them will never allow them to fall into inconsiderate action or thought. Be mindful therefore of God. Keep the fear of Him in your heart, and enlist all men to join with you in your prayers, for great is the aid of them that are able to move God by their importunity. Never cease to do this. Even while we are living this life in the flesh, prayer will be a mighty helper to us, and when we are departing hence it will be a sufficient provision for us on the journey to the world to come.
Anxiety is a good thing; but, on the other hand, despondency, dejection, and despair of our salvation, are injurious to the soul. Trust therefore in the goodness of God, and look for His succour, knowing that if we turn to Him rightly and sincerely, not only will He not cast us off forever, but will say to us, even while we are in the act of uttering the words of our prayer, “Lo! I am with you.”

## Footnotes

* ↑ Placed in 374.
* ↑ “Prayer ardent opens heaven.” Young, N.T. viii., 721.
# Nicene and Post-Nicene Fathers: Series II/Volume VIII/The Letters/Letter 166

Letter CLXVI.
To Eusebius, bishop of Samosata.

## Footnotes

* ↑ Placed in 374.
* ↑ This letter is numbered lxv. among those of Gregory of Nazianzus, to whom it is to be attributed. It is only found in one ms. of the letters of Basil (Coisl. i.)
# Nicene and Post-Nicene Fathers: Series II/Volume VIII/The Letters/Letter 171

Letter CLXXI.
To Gregory.
I wrote to you, not long ago, about Glycerius and the virgins. Even now they have not returned, but are still hesitating, how and why I know not. I should be sorry to charge this against you, as though you were acting thus to bring discredit on me, either because you have some ground of complaint against me, or to gratify others. Let them then come, fearing nothing. Do you be surety for their doing this. For it pains me to have my members cut off, although they have been rightly cut off. If they hold out the burden will rest on others. I wash my hands of it.

## Footnotes

* ↑ Placed with the preceding.
# Nicene and Post-Nicene Fathers: Series II/Volume XIV/The First Ecumenical Council/Canons/Canon XVII

Canon XVII.
Forasmuch as many enrolled among the Clergy, following covetousness and lust of gain, have forgotten the divine Scripture, which says, “He hath not given his money upon usury,” and in lending money ask the hundredth of the sum [as monthly interest], the holy and great Synod thinks it just that if after this decree any one be found to receive usury, whether he accomplish it by secret transaction or otherwise, as by demanding the whole and one half, or by using any other contrivance whatever for filthy lucre’s sake, he shall be deposed from the clergy and his name stricken from the list.
Notes.
Ancient Epitome of Canon XVII.
If anyone shall receive usury or 150 per cent, he shall be cast forth and deposed, according to this decree of the Church.
Van Espen.
Although the canon expresses only these two species of usury, if we bear in mind the grounds on which the prohibition was made, it will be manifest that every kind of usury is forbidden to clerics and under any circumstances, and therefore the translation of this canon sent by the Orientals to the Sixth Council of Carthage is in no respect alien to the true intent of the canon; for in this version no mention is made of any particular kind of usury, but generally the penalty is assigned to any clerics who “shall be found after this decree taking usury” or thinking out any other scheme for the sake of filthy lucre.
This Canon is found in the Corpus Juris Canonici, in the first part of the Decretum, in Dionysius’s version. Dist. xlvii, c. ii, and again in Isidore’s version in Pars II, Causa xiv. Quæs. iv., c. viii.
# Nicene and Post-Nicene Fathers: Series II/Volume XIV/The First Ecumenical Council/Canons/Canon XIII

Canon XIII.
Concerning the departing, the ancient canonical law is still to be maintained, to wit, that, if any man be at the point of death, he must not be deprived of the last and most indispensable Viaticum. But, if any one should be restored to health again who has received the communion when his life was despaired of, let him remain among those who communicate in prayers only. But in general, and in the case of any dying person whatsoever asking to receive the Eucharist, let the Bishop, after examination made, give it him.
Notes.
Ancient Epitome of Canon XIII.
The dying are to be communicated. But if any such get well, he must be placed in the number of those who share in the prayers, and with these only.
Van Espen.
It cannot be denied that antiquity used the name “Viaticum” not only to denote the Eucharist which was given to the dying, but also to denote the reconciliation, and imposition of penance, and in general, everything that could be conducive to the happy death of the person concerned, and this has been shown by Aubespine (lib. 1, Obs. cap. ii.). But while this is so, the more usual sense of the word is the Eucharist. For this cannot be denied that the faithful of the first ages of the Church looked upon the Eucharist as the complement of Christian perfection, and as the last seal of hope and salvation. It was for this reason that at the beginning of life, after baptism and confirmation, the Eucharist was given even to infants, and at the close of life the Eucharist followed reconciliation and extreme unction, so that properly and literally it could be styled “the last Viaticum.” Moreover for penitents it was considered especially necessary that through it they might return to the peace of the Church; for perfect peace is given by that very communion of the Eucharist. [A number of instances are then cited, and various ancient versions of the canon.] Balsamon and Zonaras also understand the canon as I have done, as is evident from their commentaries, and so did Josephus Ægyptius, who in his Arabic Paraphrase gives the canon this title: “Concerning him who is excommunicated and has committed some deadly sin, and desires the Eucharist to be granted to him.”
This canon is found in the Corpus Juris Canonici, Gratian, Decretum Pars. II. causa xxvi, Quæs. VI., c. ix.
# Nicene and Post-Nicene Fathers: Series II/Volume XIV/The First Ecumenical Council/Canons/Canon XV

Canon XV.
On account of the great disturbance and discords that occur, it is decreed that the custom prevailing in certain places contrary to the Canon, must wholly be done away; so that neither bishop, presbyter, nor deacon shall pass from city to city. And if any one, after this decree of the holy and great Synod, shall attempt any such thing, or continue in any such course, his proceedings shall be utterly void, and he shall be restored to the Church for which he was ordained bishop or presbyter.
Notes.
Ancient Epitome of Canon XV.
Neither bishop, presbyter, nor deacon shall pass from city to city. But they shall be sent back, should they attempt to do so, to the Churches in which they were ordained.
Hefele.
The translation of a bishop, priest, or deacon from one church to another, had already been forbidden in the primitive Church. Nevertheless, several translations had taken place, and even at the Council of Nice several eminent men were present who had left their first bishoprics to take others: thus Eusebius, Bishop of Nicomedia, had been before Bishop of Berytus; Eustathius, Bishop of Antioch, had been before Bishop of Berrhœa in Syria. The Council of Nice thought it necessary to forbid in future these translations, and to declare them invalid. The chief reason of this prohibition was found in the irregularities and disputes occasioned by such change of sees; but even if such practical difficulties had not arisen, the whole doctrinal idea, so to speak, of the relationship between a cleric and the church to which he had been ordained, namely, the contracting of a mystical marriage between them, would be opposed to any translation or change. In 341 the Synod of Antioch renewed, in its twenty-first canon, the prohibition passed by the Council of Nice; but the interest of the Church often rendered it necessary to make exceptions, as happened in the case of St. Chrysostom. These exceptional cases increased almost immediately after the holding of the Council of Nice, so that in 382, St. Gregory of Nazianzum considered this law among those which had long been abrogated by custom. It was more strictly observed in the Latin Church; and even Gregory’s contemporary, Pope Damasus, declared himself decidedly in favour of the rule of Nice.
This canon is found in the Corpus Juris Canonici. Decretum, Pars II. Causa VII, Q. 1, c. xix.
# Nicene and Post-Nicene Fathers: Series II/Volume XIV/The First Ecumenical Council/Canons/Canon XVI

Canon XVI.
Neither presbyters, nor deacons, nor any others enrolled among the clergy, who, not having the fear of God before their eyes, nor regarding the ecclesiastical Canon, shall recklessly remove from their own church, ought by any means to be received by another church; but every constraint should be applied to restore them to their own parishes; and, if they will not go, they must be excommunicated. And if anyone shall dare surreptitiously to carry off and in his own Church ordain a man belonging to another, without the consent of his own proper bishop, from whom although he was enrolled in the clergy list he has seceded, let the ordination be void.
Notes.
Ancient Epitome of Canon XVI.
Such presbyters or deacons as desert their own Church are not to be admitted into another, but are to be sent back to their own diocese. But if any bishop should ordain one who belongs to another Church without the consent of his own bishop, the ordination shall be cancelled.
“Parish” in this canon, as so often elsewhere, means “diocese.”
Balsamon.
It seemed right that the clergy should have no power to move from city to city and to change their canonical residence without letters dimissory from the bishop who ordained them. But such clerics as are called by the bishops who ordained them and cannot be persuaded to return, are to be separated from communion, that is to say, not to be allowed to concelebrate (συνιερουργεῖν) with them, for this is the meaning of “excommunicated” in this place, and not that they should not enter the church nor receive the sacraments. This decree agrees with canon xv. of the Apostolical canons, which provides that such shall not celebrate the liturgy. Canon xvj. of the same Apostolical canons further provides that if a bishop receive a cleric coming to him from another diocese without his bishop’s letters dimissory, and shall ordain him, such a bishop shall be separated. From all this it is evident that the Chartophylax of the Great Church for the time does rightly in refusing to allow priests ordained in other dioceses to offer the sacrifice unless they bring with them letters commendatory and dimissory from those who ordained them.
Zonaras had also in his Scholion given the same explanation of the canon.
This canon is found in the Corpus Juris Canonici, divided into two. Decretum. Pars II, Causa VII. Quæst. I. c. xxiij.; and Pars I. Dist. LXXI., c. iij.