The assurance of abby and other church-lands in England to the possessors, cleared from the doubts and arguments raised about the danger of resumption in answer to a letter of a person of quality / by Nathaniel Johnston ...

SECT. II. What kind of Alienations have been allowed by the Canons and Constitutions of the Church.

I Shall therefore in the first place shew you, in what cases Alienations of Church Lands are allowed, even by the Canons: And first, I shall note something concerning the De∣cree of Pope Symmachus, which the Author of the Letter to Dr. Burnet principally insists upon.

A Synod was held at Rome under this Pope, and called(a) Palmaris, because celebrated in the Porch of the Church of St. Peter, called Palmaria. In this Synod, at the request of the Council, Symmachus caused to be Read by Hormisda the

Deacon, the Constitution of Odoacer King of the Heruli, Published by Basilius his Prae∣fectus Praetoriae.

Wherein, under the Pain of Excommunication, he had forbid any to alienate the Goods of the Church. This was ex∣ploded by the Synod, because it was a Law of a Lay-person, concerning Church-affairs; e∣specially, because no Lay-men could appoint the Penalty of Excommunication. So Sym∣machus produceth his own Con∣stitution, as it is in the Decretal, only the last clause (b) is very different in Binnius from what is in the Decretal:(a) For in the Council it is thus, That we will the Law of this Constitution only to be observed in the Apostolic See, in all the Churches of the Pro∣vinces, according to the considera∣tion

of Souls, the use and custom being observed, which the Rectors should see to be agreable to the pur∣port of Religion.

But in the Decretal it is thus,(c) This Canon is not only to be observed in the Apostolic Church, but is said to be convenient to be ob∣served in all the Churches through the respective Provinces.

By all which it appears, that it was the Pope's peculiar Con∣stitution, made before, and ap∣prov'd of by the Synod; and extended only to the Suburbi∣can Diocess of Rome, and was not universally obliging: which as well as other Reasons might induce(d) a late Learned Au∣thor to assert, that there was a time, when the Pope entred not into the cognizance of the Goods of the Churches, which depended not on his Diocess.

I shall now shew you some cases wherein Alienations are allowed, even by the Canons,

so that you may confront these to the Canons produced by you.

In the 16th. Canon of the 8th. Council, in the time of Hadrian(e) the second Pope, it is declared, that the Holy Ves∣sels may be Alienated for the Re∣demption of Captives, the like St. Gregory(f) declares to Demetrius and Valerianus, Clerks of the Church of Firman con∣cerning 10 l. given by Fabius the Bishop, of Mony belonging to the Church, for the Re∣demption of them and their Father Passivus the Bishop, which they were affraid might be required to be repayed, and St. Gregory acquits them of it: You may say these Instances are only of Charities; Therefore I shall now shew, that in all ca∣ses Alienations, (according to the(g) Canon Law) appear to be valid, where the consent of the Clerks of the Church, to

the Grant of the Bishop is obtain∣ed. Otherwise Pope Ʋrban had not Decreed, that Aliena∣tions of all, by Intrusions, or of those Canonically Elected by the Name of Bishop or Abbot, (who ought to be Consecrated according to the Ʋse of his Church) to be void, if made without the Com∣mon consent of the Clerks of the Church.

By which it is manifest, that there had been no need of that exception, if such Alienation, with the consent of the said Clergy, had not been valid in Law.

Which is more clear in the third Council(h) of Orleans C. 23. where the Canon ex∣presseth, that it shall not be lawful, to Abbots, Presbyters, or other Ministers, to Alienate Ecclesi∣astical Goods, or things in Holy Ministry, nor Pawn them, with∣out the Permission and Subscrip∣tion of the Bishop, &c. So that

it is evident that the Bishop, or Abbot with his Clerks, or Convents, may by Authority of their Constitutions Alienate both Church-Lands and Sacred Vessels.

It further appears, that up∣on necessity, either the Bishop or his Clergy may Alienate the Lands, &c. of the Church: For in the Council of Carthage(i) c. ult. I find it Decreed, that the Presbyters shall Sell no∣thing belonging to the Church, the Bishop not being privy to it; nor the Bishops, not consulting the Council, viz. their Canons, or all the Presbytery without ne∣cessity. So that it seems there may be some necessity, which may be thought sufficient to Legitimate an Injust or uncano∣nical Alienation; and I hope to make it appear, that there could happen no greater ne∣cessity at any time, than that which occasioned Pope Julius

the 3d. to grant the Power to Cardinal Pool, for Assuring the Abby-Lands to the Posses∣sors, how unjustly soever they had obtained them.

Having thus cleared, that by the Canons there may be Alienations of Church Reve∣nues, notwithstanding the po∣sitive Canons to the contrary, I shall only add, that the Pope, ex plenitudine Potestatis, hath Power to dispense with Canons, Decrees, &c.

I shall therefore close this Section with what I find cited by a Learned(k) Author out of St. Thomas Aquinas.

The Question propounded is, Whether the Pope may change the Statutes of the Holy Fathers in General Councils, or dispense with them?

In Answer to this(l) St. Thomas holds the Affirmative: And whereas that of Zozimus the Pope is urged; which ex∣presly

determins, that the Au∣thority of the Roman See cannot change Statutes of the Fathers, or Establish any thing contrary to them. He replies to it, that in those things which the Statutes of the Fathers have Decreed to be of Divine Right, it is true. But those things which the Holy Fa∣thers have determined of positive right, those are left under the disposition of the Pope, that he may change them, or dispense with them according to the opportuni∣ties of times or Countries; and that the words of the Decrees may be altered,(m) and yet the Intenti∣on of the Decrees be observed (which is the profit of the Church) as it happens in all positive Laws, where subsequent Statutes derogate from the former. I might clog you with Authorities to prove this, but matter of Fact will clear it better, to which I pass.

Notes

• Concer∣ning the Decree of Pope Symma∣chus.
• (a)

  Binnius Tom. 3. Fol. 693. and 694.
• (a)

  Hujus autem con∣stitutionis legem in Aposto∣li. â tantum volumus sede serva∣ri. In uni∣versis Ec∣clesiis per Provincias, secundum Animarum consid••rationem, quam proposito Religio∣nis Convenire, Rectores eorum viderint, more servato. Ibid.
• (c)

  Quod non modo in Aposto∣lica servan∣dum est Ecclesiâ verumeti∣am univer∣sis Ecclesiis per Provin∣cias quidem dicitur con∣venire 12. q. 2. non liceat Pa∣pae.
• (d)

  Simons History of Ecclesi∣astical Re∣venues.
• (e)

  12. q. 2. Ap••sto∣licos & paternos Canones.
• (f)

  Lib. 6. Ep. 15. seu. cap. 199.
• Aliena∣tions for Redem∣ption of Cap∣tives.
• (g)

  12. q. 2. Aliena∣tiores ••••••∣niu••i.
• Aliena∣tions are valid, where the Bi∣shop and Chapter or Ab∣bot and Convent joyns.
• (h)

  12. q. 2. Abbati∣bus & Presbyte∣ris.
• (i)

  12. q 2. placuit ut Presbyteri. c. 5.
• Aliena∣tions upon ne∣cessity.
• Appli∣cation.
• (k)

  Bail. summa. concilio∣rum Appa∣ratus. q. 58.
• (l)

  Tract. contra im∣pugnatores Religionis 25. in cap. co••tra q. 1. contra sta∣tuta pa∣trum con∣dere ali∣quid aut mutare Authoritas quidem h••∣jus sedis non potest.
• (m)

  Ser∣vata inten∣tione statu∣entium, quae est utilitas Ecclesiae, sicut in om∣ni jur•• po∣sitivo ac∣cidi••, &c.