grants and disposals are nullities and unjust so they cannot bee confirmed by the covenants of Prague nor by the Princes That they were of no validity it appeareth by this first because they were concluded privately betwixt Caesar and the Bavarians and point-blancke contrary to the fundamentall lawes of the Empire for in the golden Bull the prime and chiefe fundamentall law cap. 7. 20. 24. and other constitutions it is decreed particularly That the dignity right power vote vicariate office and function of the Septemvirall eminency with their Principalities and Dominions by vertue whereof the secular Princes Electors are knowne to have their right and vote in the Election of a Romane King and his preferment to the Imperiall dignity should bee so conjoyned and indivisibly united for ever that no one part of the premises ought to be so divided or separated from the other at any time or may be questioned in judgement or out of judgement severally or adjudged or divided by sentence because they ought to be unseparable nor shall any lay a claime to one part without the other That if by errour or otherwise such a plaintiffe have prevailed or processe judgement or sentence or any thing of the like returne should issue forth against this constitution or otherwise happen to be accepted all that which is already done and all the consequents and things thence succeeding shall be absolutely void in Law Againe in the royall Capitulation which is the second fundamentall Law of the Romane Empire containing the articles and covenants which the Electours by way of contract have made with the Emperour to the religious observation whereof by giving a solemne oath he must binde himselfe these things amongst others are vowed and promised by his Imperiall Majesty That in the greater causes concerning the Empire hee would aske advice and give eare to the votes and opinions of the Electours and decree and confirme nothing without their foregoing lawfull knowledge and consent That Hee would authorise no mandate rescript or what ever else might bee grievous to others against the golden Bull and other constitutions and covenants of the Empire nor would either himselfe make use of any such instrument or suffer that any one should purchase the like or make use thereof Also that if hee have any controversie or suite against any of the Princes he shall try it by law but use no violence against them especially who are willing to stand to a lawfull hearing Also that hee will observe and hinder and neither by any meanes nor upon any pretence grant that any of the Peeres and States whether an Electour Prince or other may be proscribed condemned and declared outlaw'd but he will endeavour that it may bee proceeded thereon according to the ordinary rule of Law and the constitutions of the Empire by the prescript of the reformed chamber of ordinances A clause is added in the end That if any thing should bee undertaken and done contrary to this and other heads of the Capitulation it ought to stand as a nullity to bee void and of no validity Let all those things be considered and examined which hitherto have beene ordered disposed and done de facto in the Palatine cause and decreed against him from the beginning to this day and those especially which concernes the distribution of the Electorate and division of the Palatine Territories Are not all and each of them directly contrary to the golden Bull and the plaine prescript of the Capitulation and laws Is not the Electorall Palatinate torne in pieces devided and distracted the greater part together with the office being given to the Bavarian an other part to the Spaniard the rest ro others directly against the prohibition Where whether and when were the Electours called assembled consulted and gave their votes according to the custome of their Ancestours while these things were done Did not the Saxon and Brandenburger constantly and eagerly oppose the King Frederickes proscription the translation of the Electorate upon the Bavarian and the exclusion of the Kings children and kinsmen from their right Let the suffrages given up in the Senate of Princes in February anno 1623. Let sundry of their letters to the Emperour and their answers given to the Imperiall Ambassadours be read If they are now silent it is because they are compelled by violence and feare When the Electorate was translated to the Line of William the Bavarian when those constitutions were forged and anvil'd in a darke shop when the pacification betwixt Caesar and the Saxon was to be patched up by Ambassadors at Prague where then were the other Electors and States Did they then come in Were they then present Did they then give in their Votes according to the custome of their Ancestours Did their lawfull consent and Votes precede it Were they who were deprived of the Electorate their Right and States Were others who were also interessed cited heard and defended Was this great negotiation determined upon the hearing of the Cause and according to the prescribed Lawe No such thing was thought of no such thing done but the cognizance of the Electours States and unsuspected Peeres was neglected and rejected and all things determined by arbitrement by affection hatred and fulnesse of power against justice the Lawes and Customes the Royall Decrees Covenants and Capitulations against the customary and due manner of proceeding against the absent unheard unaccused guiltlesse plaine innocents not in a publike assembly but privately in a chamber and by a secret Party these things were done spoken decreed written and perfected Hence the Electors of Saxony Brandenburg not without cause objected to the Emperour as by way of exprobration That in a matter so waighty and of such moment whereon the safety or ruine of the Sacred Roman Empire as experience will witnesse might depend they were not called to Counsell and heard according to the Rule of Capitulation especially when there was a controversie about an Electour a principall member of the Empire That this businesse concerned one of the Septemvirate and the Electorall Dignity and therefore the Electours were not to be excluded from the cognizance thereof That it is sufficiently knowne that the case and question betwixt the Lord and his Vassall when it is controverted about the losse of a Fee according to the common feodall Law is to be decided and judged by the Peeres of the Court who are of equall dignity and estimation with the defendant That this Ordinance ought to bee better observed when any thing is to bee determined against them who are now Illustrious and eminent That by the Covenant of Capitulation those who are most intimate and familiar Counsellers to His Caesarean Majesty and who might equalize him that was to be punished or deprived of His Priviledges in State Dignity and fortune should have beene called to Counsell That they did openly and to the face of the world protest that this proscription and the execution thereof was decreed
which neverthelesse doth not in all things agree with the pretended offered coÌ„federacy And if any such thing should have happened in their private conference yet it is a new and unheard of way of Treaty that all things which in a familiar discourse are propounded by publike ministers should be inserted into publike instruments under the Seale and afterwards objected against them But yet what maner of Confederacy and under what Conditions it was offered by His Royall Majesty it did plainely appeare both by the words and meaning of the writers and speakers to wit that If his Imperiall Majesty regarding the intercession of His Royall Majesty should restore the Electorall Palatinate with the annexed dignity and liberties and by this meanes lay the foundation of a generall setled Peace in the Empire then His Royall Majesty would enter into a Covenant with His Imperiall Majesty and the Famous House of Austria and with the Septemvirate and States of the Empire for the obtaining of the Peace and generall tranquility and the setling of it upon equall Conditions on both sides and to defend it against all those who should dare to impugne such a sacred agreement Wherefore he did humbly beseech His Imperiall Majesty that no such pretended League might any more bee objected to the most Illustrious King his most gracious Lord or him His Ambassadour nor might it bee any more an hinderance whereby the forementioned plenary restitution might not maturely be perfected without further procrastination Next he refuteth and opposeth the proposition and offer made by Caesar in standing to his own Decree or Declaration given to Iohn Taylor Febr. 24. Anno 1636. saying That he in his proposition and first bill of remembrance had plainely shewed that the declaration was of such condition as could give the King no satisfaction both because the things therein offered were far inferiour to His hope and expectation in that the restitution of the most Illustrious Prince the Electour His Nephew was included and circumscribed within the narrow compasse of some one part of His Dominion which neverthelesse is not yet named as also because it is said that his Imperiall Majesty would acquit the Count Palatine Charles Lodowick of the Imperial Ban derived unto him by reason of his Fathers trespasse to the end he might bee received againe amongst the Princes of the Empire if He should fulfill the Conditions contained therein When notwithstanding it is manifest that the most Illustrious Electour Charles Lodowick is guiltlesse and free from all offence and born a Prince of the Empire that the right given by God by nature and the law appertaines unto Him and cannot bee taken from Him as might be shewen more largely if need required Moreover as the most Illustious King desires thankfully to entertaine the grace and clemency of His Imperiall Majesty so it would be altogether unjust and reproachfull both â—o Himselfe and His Nephews to forsake the equity and justice of the cause which is grounded upon the law of Nature and Nations the Golden and other Imperiall Bulls and the fundamentall Lawes of the Empire as most plainely may be proved in its proper time and place As concerning the manner of the desired restitution He knoweth no other than that the most Illustrious Elector Charles Lodowick and his Brethren by an Imperiall decree reall entrance and solemne Investiture customary in cases of this nature be speedily restored unto their ancient Dignities Fees Possessions and Priviledges Then that they againe should promise reciprocally and doe really what such homagers and Princes of the Empire invested and admitted into possession are bound and ought to doe and performe according to the right custome and prescription of the Empire But in the behalfe of his most Soveraigne King he doth undertake and promise that if for His sake this restitution be hastned and done without delay then His royall Majesty should willingly performe those things which may plainely testifie His royall and singular inclination towards his Imperiall Majesty the famous house of Austria and peace of Germany and that He should seale to all this and confirme it both in His owne name and the name of His Nephews in publike writings and conditions to which end he hath already sent his Ambassador with a sufficient commission and ample power to his Imperiall Majesty and the Princes of the Empire To this the Emperour replyed first by writing and afterward by his Counsellors viva voce by writing in these words That for the present He held it needlesse to dispute of priviledges that the authority of the Imperiall Majesty is undoubtedly grounded not onely upon the common Lawes but the peculiar constitutions of the Empire and the Decrees of the Golden Bull and confirmed by very many both ancient and late presidents That His Imperiall Majesty had used this liberty for the free disposing of the Dominions and Dignities of the often named Palatine which disposals are since confirmed by the late Treaty at Prague and consequently by all the Princes of the Sacred Roman Empire From hence if things he well scanned it may easily appeare whether there be any and of what value that amity is which his Imperiall Majesty hath formerly offred and doth yet offer to the children of the Count Palatine and how much it ought to be esteemed All which being truth and seing that his mentioned Imperiall Majesty hath declared himselfe both in respect of his affection and inclination toward the most Illustrious King of Great Brittaine as also in respect of his clemency toward His Nephewes sometimes the children of Fredericke Palatine according to the manner and under the conditions contained in the often mentioned decree of the 24th of February Therefore hee thinkes it fit and doth in all curtesie require it that the said Lord Ambassadour if it stand with his liking would come to particulars and more plainely either by writing or if it please him which his Imperiall Majesty thinkes more convenient by conferring with his Imperiall Majesties Commissioners to explaine what the most Illustrious King of Great Britaine would offer reciprocally and intends to performe to his Imperiall Majesty for these like proffers that so as the custome is in a faire equipage it may be treated agreed and concluded of things required and to be done on both parties The Ambassador having received this answere declared himselfe to be therewith nothing satisfied and therefore desired that his Imperiall Majesty would expresse his minde more plainely and fully and determinately and absolutely declare whether he had resolved to do any thing in this case and what and upon what Conditions hee would restore in particular He therefore having called his Counsell upon the Kalends of September commanded them to repaire to the Ambassadour and speake unto him to this effect That His Imperiall Majesty having weighed and considered all things which aswell hitherto had been presented by the Ambassadour as also were necessarily considerable in this case he would fairely and sincerely deliver
and warranted that the Electorall dignitie was conferred upon Maximilian alone and to him too only for tearme of life and that after his death the children and kindred of King Fredericke were againe to be admitted Moreover they whom it concerned and which were grieved were not called and impleaded as wee have heard for in acts that may bee prejudiciall all whom it concernes ought to bee cited For so Divus Marcus l. 39. ibi They also being present that would oppose the decree that is might bee grieved by the ratification D. de adoption where Gothofredus giveth this rule Hee is alwayes to be cited that may bee injured l. 47. Iudgement in every matter ought to be given they being present whom the matter concernes D. de rejudicat l. etiamsi Patre 29.9 si haere litate Patris 2. ibi non evocatis creditoribus minime id praeiudicasse D. de minoribus Ioachimus a Beust in l. admonendiâ—n 796. D. de jurejurando Bâ—t whatsoever is ordered decreed â—one and concluded against the absent is nothing l. si ut proponis 5. ibi What is so carried against thee in thy absen e ought not to be referred to the effect of the law l. ea quae statuuntur adversus absentes c. Quomodo quando Index sentent When saith Symmachus in a certaine epistle did things concluded of amongst others wrong those which were absent and ignorant L. 1. ibi It is often decreed That matters passed in private for the one partie can doe no prejudice to the other And l. 2. ibi This law is notoriously knowne that a transaction made amongst some in private cannot prejudice the absent ibi For neither though they have made a division in thy absence can it derogate from thy right c. Inter alios acta aliis non noceret argt l. transact matris 26. c. de transact l. Imp. 3. ibi Privatis pactionibus non dubium est non laedi jus caeterorum D. eodem Lastly all these acts were drawne up against such as were then in their Minoritie undefended unheard fatherlesse Orphans and whose title came by atchievement For when those contracts betweene the Bavarian and Caesar were made and the Covenants of Prague were peeced Charles Lodowicke was yet as a ward as the rest of his brethren are at this present day He alone had then attained the age of 18. yeeres the time prescribed by the Golden Bull for the full age of the Electors children But the Emperours affirme that whatsoever is decreed against an Orphane he is undefended under protection of a Guardian it cannot endamage him at his riper yeeres 1. acta apud se 45. § contra indefensos minores nulla sententia proferenda est 3. l. contra pupillum indesensum vel minorem xxv annis propositum nihil momenti habet which in English runneth thus Against Orphans undefended or under the age of 25. yeeres a peremptory sentence is of no validitie 54 D. de reiudicata No man to use the Civilians Language can bee deprived of an atchieved right no not by Caesar using all his royall prerogative To take any thing from another violently is more against nature than Death than paine than povertie or what else may happen to the estate of the body or of Fortune Cicer. lib. 3. Offic. But concerning the confirmation and approbation of those Disposals it is to be understood First that a contract against the allowed customes lawes and liberties is a nullitie nor can be confirmed ratified or allowed Secondly that the approving thereof by the states which is yet uncertaine whether so or no is unlawfull and of no validitie because they were not present nor called and assembled together that the cause being first heard they might then give their consents and if any did so and suffragated to Caesars propositions they did it severally and apart which by law ought not to bee done l. item si unut 17. § item si plures 2. and l non distinguemns 32. § Cum in plures ibi Non debâ—t singulos separatim cogeâ—e D. de receptis qui arbitrium c. cum omnes Extra de consit de constit Hieronym a Cavellis in spicul Coâ—…â—un opin quaest 476. Anton. Faber in Cod. Decision foren lib. 1. tit 3. definit 42. where he sheweth that It is not to be reputed a generall Act which is done by particular persons though done by all if they be not assembled into one Company and Flamin de Rubeis consil 69. n. 220. lib. 1. saith the Record is of no power though all the parties consent if they agree severally and the severall persons are not lawfully congregated Besides most of the Princes especially the Protestants which assented to the treaty of Prague were enforced thereunto and constrained by feare menaces armes and peremptorie Commands to approve it if not they had bin proclaimed open enemies as it is expressed in the register but the law teacheth what ought to bee thought of such consents and allowance See l. velle non creditur D. de regulis iuris and there Decium Dol. ibi Necessitas imposita contraria voluntati D. quod metus causa Cuiac observ ult lib. 16. Whatsoever is extorted and done by feare is accounted as nothing and cannot bee ratified D. Quod metus causa l. si donationis 7. and l. ult c. de his quae vi metusve causa gesta sunt where it is concluded ratum haberi non patietur quae per potentiam extorta sunt praecipimus infirmari in English thus it must not be permitted that such a conclusion may bee ratified and we command that whatsoever is wrested away violently shall not be authorized Bartol in lib. 1. § quae veneranda in sin D. Quarum rerum actio non datur de except iurisiurand In fine it is not to bee said and concluded instantly that all they which complyed themselves to the treaty of Prague did allow and ratifie all and the severall articles in that sense as it is there expressed and in particular those Disposals of the Palatine Electorate there mentioned they being such as never came to their knowledge Surely some and amongst them the Elector of Brandenburg coÌ„sented with an expresse reservation exceptioÌ„ either generall salvo uniuscuiusque iure saving every mans right or specialty as the same Elector hath done in this Palatine cause And the rest are thought to have subscribed under the same secret condition For this clause Salvo iure tertii though it be omitted is alwayes notwithstanding conceived to be included in the writings d. l ult c. si contraius vel utilitat public 1. si quando § ult x. de rescriptis c. super eo x. de crim fals For none of them would seeme so uniust and partiall knowingly to confirme an uniust thing and a nullitie by their consent and require that he should be deprived of his right whom they were perswaded and knew to be an Innocent and much wronged Nor is it
sufficient to say that those Disposals were confirmed by the Princes of the Empire unlesse that also it be openly shewed that the confirmation was made with knowledge of the cause For this is necessary saith Nicolaus Burgundus in his booke of the Bavarian Electorate written in defense of Christophorus Gewoldus fol. 284. that any one may be thrust out of his possession nor doth a light cursorie and perfunctorie understanding of the cause suffice A full and exact knowledge is required allegat Iason ad l. iudices n. 2. 3. c. de iudic Decius ad l. non videtur § qui iussit D. de reg juris And this kind is not presupposed but is to be prooved by lawfull witnesses or ought to appeare out of the Acts as the same Burgundus in the same place affirmeth adding Panor ad c. 2. n. 8. 22. de sequest posses Alciat de praesump regul 2. praesum 9. Menochius remed recuper 8. n. 26. 27. 15. n. 405. lib. 2. praesumpt 67. n. 12. 13. praesumpt 75 n. 22. l. judices c. 6. de iudiciis desumpta ex codice Theodosian lib. 2. c. 18. ibid. inprimis rei qualitatem plena inquistione discutere c. iudicantem 31. quest 8. I forbeare to prosecute and bring to light the other Nullities and acts of violence and injustice committed in framing those disposals and the Covenants of Prague for translation of the Electorate I shall here only by way of imitation transcribe some things making for this purpose out of that book formerly quoted which Nicolaus Burgundus a Lawyer Bavarian Advocate and Professor in the Vniversity of Ingolstad wrote concerning the Bavarian Septemvirate otherwise called the Apologie for Christopher Gewoldus For what was lawfull for him to speake and thinke of the Decree of Charles the 4th by which it is declared and ordained That the Electorate should be annexed to the Countie Palatine of the Rhyne and not belong to the Bavarians That we may speake and conclude more truly and justly of those new clandestine and irregular Decrees of Ferdinand the second and the Treaty of Prague Wilt thou saith he fol. 78 have this stand for the sentence of a Iudge It can not be called so where nothing is done orderly and legally Ought not a Court to be called and the case pleaded before sentence should be given Here was no examination here was no controversie at all The examination begins with the Citation if the Adversary be not called there is no examination Where there hath been no examination there is no sentence Who ever warned Charles Lodowicke and His brethren to appeare in Law It is apparent they were not present therefore the sentence fol. 79. is utterly voyd because it was pronounced the Adversaries being neither cited nor heard l. 2. ibid. Bald. c. si per vim vel alio modo l. 1. 5. item cum ex edicto D. de sentent quae sine appellat rescind And consequently by that sentence no man can be deprived of his right c. 1. defeud sine culpa non amittend Anchor conf 33. vol. 1. Perhaps you will say It was lawfull for the Emperour ex officio to enquire for the trueth It is done usually in cases criminall but not used in private businesses And yet by such inquiry he could not condemne the Palatines without a lawfull Citation because an hurtfull testimony is not to be credited the party not being heard elem Pastor de rejudicat Roman consil 245. Many things indeed are required before the absent can be condemned and thrust from his possession He is first to be impleaded at the Law the Decree is to be published and he to be declared contumacious otherwise by the Lawes Customes and Ordinances of our Ancestours it is not rightly brought to sentence though the Emperour himselfe adjudge it d. elem Pastoral Abbas ad c. 1. de caus propriat posses Baldus ad l. ultim de legib If you shall speake of a Prerogative fol. 83. you ought to know that the Emperour with all his authority cannot by his Prerogative take away any mans proper right without a just and publike cause What was the just cause that the Electorate should be violently plucked away from the Palatines None What was the publike cause None The whole negotiation tended particularly for the advancement of the Bavarians The whole Scene was made and laid meerely for their advantage What remaines therefore but that we may call that praerogative a nullity which doth tend to the injury of the Palatines which contrary to the rule of the Law doth snatch away the Palatines right and thrust them from their possession But you will say fol. 94. the Emperour and the Electours and the States of the Empire have confirmed it I grant it But what is the power of a confirmation If we beleeve those who are learned in the Law it confirreth no new Title but only strengtheneth that which is already given Molinaeus ad consuet Parisi titulo 1. § 8. gloss 1. n. 88. and implies withall this condition If the case be thus Molinaeus loco â—tat Rebuff tractat de decim 13. n. 90. 91. But surely you have no Charter and therefore the confirmation is vain and frivolous For where that which is confirmed is nothing there the confirmation is nothing also for that which is of no validity is accounted as if it had not been done at all l. 1. § haec autem D. quod quisq ius in alter stat And what is not cannot be confirmed Thus farre I have spoken in the words of Burgundus save onely that the name of the Palatines is used in stead of the Bavarians But if it be lawfull for the Bavarians to oppose the disposall of the Emperour Charles the 4th for setling the Palatine Electorate and the golden Bull confirmed by all the Princes of the Empire and by three ages observed and established and to account it as a nullity in that behalfe and to say it was wrested and gotten surreptitiously and fraudulently and made by the Emperour in two much favour of the Palatines and hate of the Bavarians that he might oppresse them under a shew of Law Why may it not now be lawfull for the Palatines by the same ground and reason to refute and call by the name of a Nullity that disposition of Ferdinand concerning the granted Electorate to the Bavarians and those written Covenants of Prague confirming and allowing it made and patched up together out of hate against the Palatines whose oppression under colour and pretence of Law Caesar and the Bavarian did endeavour to hasten that they might the more easily attaine to their owne ends Burgundus saies further of the Emperour Charles fol. 63. that hee was in all things respective of the Palatines and displeased with the Bavarians and therefore having excluded these last he gave and adjudged the Electorate to the former what wonder for he joyned in Armes with Rupertus the Palatine for the ruine of the