the person the Fact and the Crime It was not probable that a weaker Prince not ambitious should rebelliously rise up against one from whose power and purpose hee could expect nothing but utter ruin Somthing sure there was that put him necessarily and therefore warrantably upon that course he tooke certainly he never resolved nor reckoned to come within the compasse of beeing but called a Traitor And indeed it was not legally possible that he should Carolus Molin Tom. 1. Concil 42. num 12. for Nemo dici potest reus criminis rebellionis vel laesae-Majestatis nisi fit propriè subjectus supremi Principis in quantum est subjectus But the Prince Elector Palatine was no such subject especially at that time when there was an Inter-Regnum and himselfe supreme Neither was the fact Rebellion and that according to the Germane interpretation of such actions so circumstanced for after their usages such enterprises of free absolute successive Imperiall Princes that are purely or but pregnantly pretended for the propugnation and defence of the liberties and Lawes of the Empire Waremundus de foederibus part 2. ca. 7. though they crosse and controll the proceedings of incroaching Emperors are esteemed as free and as far from the suspition of rebellion as that Elective Emperor is from tyranny and this is evident out of the domestique leagues Molanus de Fide servandâ rebel l. 4. c. 5. and treaties of the fraternities and families royall of Germany wherin they distinguish even in an exclusive way betwixt the right and good of the Empire and the personall interests of the Emperor But the proceedings of that proscribed Prince were of this nature fairely for the prosperity those blessed benefits of the peace and liberties of the sacred Empire not for a dissolute popular licentiousnesse but for politicall liberties essentiall to the well-being of the Empire which hee was bound to maintaine both by oath and Office as Supremus Dux Belli ex Officio and as his dominions were Fundamentaliter Feuda militaria As to instance The cause he undertooke was not only to take short the Austrian tiranny but also to turne off the designe of delivering up the Crowne of Bohemia to the Turke as the Nobility professed they would do if such a friend as Frederick would not take it and defend them The second subsequent false inference is that Prince Fredericke beeing proscribed upon those conjectured collected crimes his Dominions with the dignity Electorall are forfeit for ever to the prejudice of his royall Family One would thinke That the Emperor in point of honour or at least out of clemencie should after so long a banishment have called home that Prince and so have wrought him to himselfe by royall favors restoring to him his rights and jurisdictions His princely predecessors were not wont to be so roughly handled in Germanie even when they ventured upon questionable quarrels As when Fredericke Prince Elector palatine two hundred years since had the Archbishop of Mentz the Marquesse of Baden Aeneas Silv. Epist 395. li. and the Earle of Wittenberg prisoners then the Emperor Frederick the second was contented to use the mediation of his Secretary Pope Pius the second and Philip Duke of Burgondie to compose the businesse Yea the proceedings of Charles the fift were so faire and friendly with the Prince Elector Palatine when hee fell foule and sadly upon other Princes of Germany insomuch that the Duke of Bavaria repined at it Ducem Bavar Thuan. hist lib. 2. aegerrime tulisse ferunt quod omnibus bonis pristinae dignitati restitutus fuit quia spe obtinendi Septem viratus Caesarianas partes secuâ—us est And sure it might now have as well beene expected considering the honesty of the cause hee undertooke Sen. de Clem. li. 2. ca. 7. Et clementia hostes dimittit salvos aliquando laudatos si honestis causis pro fide profaedere vel pro libertate in bellum procincti sint So that I beleeve the relations and reports of Historians and Lawyers who respect right and the Emperors honor will differ as much from theirs that reflect onely upon point of fact and the fortunate felicitie that attended their fraud and force as they doe that so severely set downe the dealings and deservings Guifan in vita Iustin Belizar p. 41. 47. that passed betwixt Iustinian and Bellizarius the brave Germane who was accused of treason against the Emperor because the Kingdome of the Goths was tendered him by the Nobility and then he falsly reported to be discarded and ruined as may be seen in Zetzes Crinitus answered by Alciat So strange would it seeme to wise men that proceed upon safe and substantiall principles of policie and piety Fredericke King of Naples got much honor by a contrary course when willing to expresse and assure his favor forgivenesse Paul Iov de Vir. Iilustr vita Fred. to the false Factionists of the House of Anjou bare as an Impresse a Bankers book figured 1485 crost and cast into the fire with this Motto Recedant vetera signifying That he freely and fully pardoned all passed injuries as it were by an Athenian 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But since Prince Fredericke the father hath had such triall of Austrian mercy his posterity have no reason to trust to it being hitherto handled as if they had been borne heires of the hatred cast upon their father And now we have discovered that it is no easie matter to conceive how the father should forfeit his Countries and Electoral dignity in respect of his owne personall right therefore much harder to conclude how his act should disable his heires for the Dominions with the Dignities annexed are either an absolute patrimoniall propriety or a feudall successive possession If an hereditary propriety then not to bee forfeit because not held of the Emperour if a feud then either purely and properly so or mixt and if mixt then the service is not so exact and set especially if the lord and feudatory are Peeres in other respects such a feud is granted Par in parem non habet Imperium either for fealty and observance or charged with an annuall pension or some such tributary triviall acknowledgement now if it bee granted upon such an acknowledgement then it cannot bee forfeit Hotoman Illust g. 34. Quia fidem non servat Feudatarius nam obligatur od reditum non ad fidem And there are many circumstances of extraordinary concurrency that must fall in to make such a feud forfeit especially if it consist not in Agris Praediis but in Iuribus Honoribus if so in petty rights and jurisdictions then sure much rather for the security of those feudall Dominions that have royall imperiall prerogatives Feud lib. 4. tit 56. § quae sint Regalia successively annexed to them by primitive investitures in a fundamentall way I will conclude nothing upon this but leave it to active and rationall
without the knowledge of the Emperor wage proclaime war and peace in their own names and power all which appeares by such authentique antiquity both in lawes and proceedings that the Archbishop of Mentz in Councel at Frank ford affirmed That the government of Germany was Aristocraticall Clapmarius de Arcanis Reipub. lib. 5. ca. 20. giving the Emperor onely the pre-eminence to be President in the extraordinary Imperiall Assemblies So that if the power and priviledges of Bulla aurea morgaged in the hands of the Electors Sleid in fine Philip. Com. inej pa. 200. were duly observed as they would Si non post dira diuturna bella duris extortis pactienibus adempta sint then I conceive that the Prince Elector a Comes Palatinus as Major domus Imperialis as Provisor Supplimentum â—bbatis Vrspurgens pag. 274. Curacius partit on li. 1. tit 32 Vicarius Imperii qui cognitionem habet in gravatoriis contraipsum Imperatorem sententia ejus Imperialis is more absolute than to bee criminally condemned by the Emperor especially for businesse that passed and had the rise in an Inter-Regnum And this that we plead for is not without president in the case of absolute Princes possessed of Feuds and condemned as Delinquents Robert King of Naples was cleared from treason against the Emperour Capycius novis decisionibus Neapol 142. Quia non subditus erat rationè originis sed solum ratione Feudi And if this would have held the French kings had as good ground to take up armes against the Kings of England as their rebels if they offended them during the time they held the Dukedomes of Aquitaine and Normandy as a Feudall Inheritance Or the Emperor may as well war upon the French King as a Rebell being his Delphinate is a feud of the Empire So in like manner he may come upon the Kings of Poland and Denmarke or upon his grand Cousin of Spaine if he dare for Millain and other of his Dominions held as he is a Feudatary to the Empire But sure they may be secured at an easie rate as Charles the fourth for one dinner neere Avygnion Avent Anal. lib. 7. gave up the acknowledgement due Arelatense regnô as Aventine the Bavarian relates it Therefore this ground of war was doubtfull if not unlawfull being unusuall antiquated and suppressed by the consent of the Nations of Christian Europe Secondly It is concluded by wise moderate and indifferent States That satisfaction for the supposed injury hath been taken to the full before this time and the revenge and reparation of a reall wrong ought not to bee driven to the utter ruine especially of otherwise well deserving subjects or weake neighbours lest it truly seeme onely a colour to exercise crueltie tyrannie avarice and ambition As serious Seneca Sen. de Clement lib. 2. cap. 4. Crudeles illos ego vocabo qui puniendi causam habent modum non habent Enough sure it is conceived by all the world except the Iesuited party that Bohemia is fully possessed all the parts of the Palatinate so long detained as a desperate Depositum under various colours of sequestration and morgage to the Emperors use for the payment of the Duke of Bavaria the King of Spaine and the Arch-Duke of Austria as Auxiliaries in the execution of the sentence against Prince Fredericke with the dignity Electorall administred by the Emperors absolute order not to mention the great confiscations So as I beleeve some of the Iesuits so pitty the satisfaction that hath bin taken especially considering the Royal Mothers depriving of her Iointure that if the Prince will but change his faith these wil soone help him to change his fortune And what ever is now pretended and practised the Emperour could not intend to continue the possesssion or the disposure of the dignity Electorall any longer than the Prince Elector Palatine should bee at age to receive them as is plaine not onely in the second condition of restitution tendered by his Imperiall Majesty to the king of Great Britaine but also by the limited investiture Les Conditions de la Restitution entiere du Palatinat del Electorat 1623. Aurea Bulla apud Schafnaburg 279. that Bavaria seemed contented to take it withall which was according to the authentique ordinances of the Empire For Electoris secularis jus vox potestas Electionis ad haeredes masculos pertinent cum ad annos octodecim venerint So that this second ground is no firme foundation for the continuing of the present possession and proceedings Thirdly we may as easily discover that the line in which those Armies marched and mastered was not direct and legal according to the solemne right of waging war this fact might with more ease and certaintie be considered of than the point of right that entred it even as there is more confidence in judging of Mathematicall engines than of morall actions Many manifest passages of praedatory and perfidious ambition were apparant in the manner and time of avancing those Armies towards the Palatinate which well weighed may amount to a nullitie of the right pretended from their proceedings For what solemne justifiable warre was ever yet made upon a neighbour at least in a vindictive way without a legation to treate of injuries and then an indiction and due denuntiation or diffidation as Baldus But this invasion was while a treaty was tendered and accepted from the King of Great Britain in full significant and extraordinary wayes of Embassie and yeâ— in the interim the Countries surprised and possessed in abuse of Treaty before the face and against the protestations of the present Embassadour and so by the Law of Nations is to bee restored in integrum As for indiction it may bee the Iesuites who innovate in all things have taken to themselves a Faecialique faculty either to antiquate or dispense with it or it may be have passed an Inquisition upon Tullus Martiall Lawes Tullus disciplinam omnem militarem condidit Flor. hist l. 1. cap. 3. especially meeting with them in Tullies Latine which is Language too plaine for such foule carriages to brooke viz. Belli jure nullum bellum justum est nisi quod rebus repetitis geratur Cicer. de offic lib. 1. denunciatum indictum But sure these confident aequivocal creatures are far fitter to be bold Heraulds to proclaime armes or insinuating explorators of Councels Lonigus Aphor. 14. than faithfull Faeciales to judge and determine of causes and just proceedings of warre And so I submit these supposed grounds to their judgment who chuse to measure titles by the line of equity and not by the laist of ambition It remaines then in the next place that we consider the Emperours power and right to dispose of the Palatinate and the dignity Electorall by vertue of forfeiture and seisure as escheated and confiscate to his Imperiall Crown But before I go any farther I must crave pardon by these Ecclesiasticke Statists
A DISCOVERIE of the false Grounds the Bavarian party have layd to settle their owne Faction and shake the Peace of the EMPIRE Considered In the Case of the Deteinure of the Prince Elector PALATINE his Dignities and Dominions With a Discourse upon the Interest of ENGLAND in that Cause By CALYBUTE DOWNING LL.D. Pastor of Hackney ¶ Seene and Allowed LONDON Printed by RIC. HEARN and are to be sold by Thomas Bates at his shop in the Old Bayly 1641. TO THE HONORABLE THE KNIGHTS CITISENS AND BVRGESSES NOW ASSEMBLED IN THE HOVSE OF COMMONS The Preface WEre it not that those braving Bavarians and Imperiall Instruments who pretend piety justice and devotion in all their actions are stil most peremptory and insolent in making Manifestors to the Christian world of the legality and equity of their course continued against the Prince Elector Palatine wee would never have dared to touch so tender and shy a subject only have left it to the sword to decide But seeing this novel Colledge and Councell mixt of Jesuites de facto in voto have given themselves commission Ex Officio unheard to determine what may must â—edâ—ne In ordine to the practicall principles of their modern Monkery The desire that wee have to see a safe peace setled in Christendome hath moved so far that wee cannot contentedly sit still in silence for if out of a suffering modesty may be given to active ambition to surprise and supplant and that these pernitious Politiques may stil advance and prosper in their way it will be impossible that the state of the Western World should ever draw neere to any degree of Vnion though it be but in a mutuall toleration They have not Beati Pacifici in all their Regular Liturgy but are most bitter against all negotiations for moderation And therefore wise and respective men and States who ordinarily feare and fly practique questions and publique quarrels have reason to come on one step out of their reservednesse and declare their opinions otherwise they may get a knock as standers by in neutrality when as if they would but speake out they might discover more than the gamesters and shew how the Checke was given These absolute enemies of states and Churches who neither regard Prince nor people but in relation to their owne interests will I hope before long be discovered and so discarded as the common Enemies of the peace liberties and lawes of Nations A DISCOVERIE OF the false grounds the BAVARIAN Party have layd to settle their owne Faction and shake the peace of the EMPIRE Considered in the Case of the detainure of the Prince Elector Palatine his Dignity and Dominions THough I should be loth to do these Ministers of Vsurpation so much wroÌ„g as to disable or disparage them in their reputation for action by not coÌ„ceiving that they have bin the Projectors of all the perfidious cruel practices that have bin exercised for these last twenty yeares upon Germanie yet I will hold off from relating any of them For if I should resolve to represent them in their true Catholique colours I could not tell what Inke to use whether blacke or red being I should never get blacke enough though made of the bitterest galls to shadow out the dismall darknesse of their designes and if I should take red to expresse the bloudinesse of so long lasting a massacre they may conceit that I applaud the action for they use so to register victorious successeful villanies with a Rubricke in their new Gregorian Kalender I omit them therefore and chuse to fall upon a survey of the false foundations which they have layd destructive to the good of Christendome These most active Engineers have concluded it as a maine master-piece of their ground-work for their fast footing in the Empire to be able still to hold out the Prince Elector Palatine having the casting voice in all causes both of liberty and Religion having falsly procured that their devoted Protector the Bavarian may for a turne at least be possessed of his Royall rights that so they being distributed to a dependant for the present the House of Austria may with more ease and speed appropriate and incorporate them into their owne inheritance and I know not but these Projectors may delude the old Duke their new Master and onely shuffle with him upon subtill yet shallow principles of his succeeding security using him as a divertive fontinel to turn a humor though as yet it bee an hard matter to distinguish the designes of the Spaniards Imperialists and Bavarians who seeme but Diversi though they be Divisi Now to make this ground good they have cast about to devise and divulge not the causes but some colours for detaining the Palatinate and the Electorall dignity appendant to it as they have ptetended arguments to raise a question to make it a controversie then by sequestration got present possession and so by time and reputation of prospering raise a title But they dare not proclaime nor professe the true reasons which are Ambition Usurpation to the suppressing of liberties and Religion therefore they wel and wisely to divert and distract ventured to vent and publish some accidentall occurrences which fell in with the course of affaires grounding all upon the events of their prevailings and upon such slender proposals seeme to pleade plausibly when as if they would deale ingeniously and take a true view of the entire businesse they are too able not to stand upon their honesty to be deluded by any such overtures For they know full well that the originall of the War in Bohemia about the translation transposition and elective tradition of that Crowne was set on foot by the Emperors practice and party not by the Princes But I will not drive the cause so high as to discusse or discover the spring of that fearefull floud neither will I mention the right of the Nobility and Commons of Bohemia in electing but I wil if it be but to please and pacifie them suppose all true which they know to be most falsely suggested and consider whether the practicall deductions which they have drawne from such principles bee cleare concluding and of fundamentall force to detaine or discontinue the Prince Elector Palatine from his undoubted roialties and dominions Let it goe then for granted that all Prince Fredericke did in the businesse of Bohemia Les Conditions de la Restitut entiere du Palat. Electorat is no further right than the Iesuites will have it so yet it will not fairely follow upon free consequent that all which the Emperour hath been pleased to make him suffer as correspondent to his carriage is so farre from wrong as they would make it neither do I beleeve that the Emperor himselfe did so conceive it but he was cast upon that course by the currant necessity and excursion of the Warre And therefore what stands now determined grounded meerly upon point of fact which was full of scruple
scandall and casuall not deliberatly intended can have no strength of right though since more reasons are invented for the totall justification and ratification of the proceedings than did at first perswade the practise or can arise from the natural naked interpretation of the action For though the Iesuites answers and counsels are like the Oracles not of Delos but of Delphos all for their own advantage yet the actions of Emperors especially in Armes must not bee like a Delphique sword to cut off on all sides as occasion shal serve both in retraits truces and times of treaty and though the Imperiall Majesty as powerful Princes use to do whose Confessors have no certaine rule of conscience raised and inlarged his pretensions according to the prosperity of his proceedings invading possessing deposing and disposing of the undoubted dominions of the Prince translating his Electorall Dignity upon a contempt after a sentence of Proscription grounding as many Titles as they could devise to that which they knew they had never a good one non obstante all this and much more which passed in solemne significant formes and ceremonies of personall banishment dismembring his Dominions triumphant Confirmations and Congratulations of the Duke of Bavaria his personall Administratorship of the Dignity Electorall The present Prince Charles hath a true title of right to require the restitution the investiture and actual possession of all those Dominions and Dignities Electorall in an individuall sole and supreme way Now let us see what the Iesuits can say for the present detaining of these Rights which they must ground upon the Emperors right to dispose of them and all that we can suppose in that way may be reduced to right of Armes and right of Forfeiture But neither of these are so cleare or of such validity as to exclude the House of Palatine or to prejudice the present prince To consider first the title from his Armes they were offensive aggressive and by way of revenge Now to make that Title hold on perpetually to prejudice a Royall Family it must be supposed first that the Emperor had injury offered him by Prince Fredericke Secondly That the dammage is not yet satisfied Thirdly That the possession by Armes was solemnly obtained according to the right of War None of which particulars are so cleare as they ought to be in so capitall a cause First it may be averred and not without good ground that the Emperour was not directly injured beeing the contention was not betwixt them as hee was Emperor but as one of the Archdukes of Austria about the Crowne of Bohemia a feud of the Empire then depending undecided in which cause if Ferdinand had then been Emperor as he was not rei vel personae non existentis nulla sunt nomina qualitatis vel operationis he might have bin supreme though not sole Iudge if the cause had not been his owne But if the prince did after in the course of the war offer any indignity to his Imperiall Majesty as they urge it then I desire to know upon what consideration the Emperor took up armes against the Prince Elector to the possessing of the Palatinate after that Frederick had in a publique way renounced his right in Bohemia whether as against a forrein enemy or against a domestique subject none will say against a Forreiner then as against a subject who was conceived a rebell and a Traitor otherwise no war but praedatory proceedings and he could not lawfully make an offensive warre upon him for an Elector that hath royall Dominions in a successive way is not such a simple subject that he can be a Rebell or a Traitor to the Emperor of Germany with any prejudice to his princely Family and if he be such an ordinary subject then it is as to the antient Kings of Alemany or to the now Romane Emperour which distinction is admitted by many able Historians and Civilians Pancerolus Com. Occident Imper. cap. 90. Now such subjection cannot be pleaded for as due to the Roman Emperor for those absolute principalities especially the Palatinate are more antient by hundreds of yeares than the Empire in great Germany Et Princeps non potest novo Imperio subjici Grotius Apologet ca. 9. nisi eipso consentiente without they were such new titular Lords of Ferdinand the seconds who created more in these late twenty yeares than were made in all the time betwixt him and Charles the Great Bullatos Codicallares diplomatatios titulu sed non vitulum habent eques sine equo Sure 't was upon designe to dash disparage and indistinguish the old Dignities And before they could not be subject for the Roman Empire did never reach over the Reine into the largenesse of Orientall Germany as we know Charles the Great was very carefull to limit the bounds of his new acquired Roman Empire Schafnaburg 209. that his Francks in great Germany might still bee free Molin de Consuet Paris num 8. Jure Francorum seu lege Salica And sure the subjection that they owe as to the Kings of Almany is limited too short and too weake to uphold the claime the Jesuites clamor for being every Prince was antiently most absolute in their owne dominions Wesenber Cons 27. num 29. Quemlibet in suo territorio perhiberi Imperatorem nil nisi ambitu minoris circuli ab Imperatore differre So that all that we may grant without prejudice to these Royall Rights is Decisio Pedemont 29. num 4. That they owe the Emperor not simple subjection but respective homage Officeum pactum non obsequium and so are supreme in their owne territories especially seeing the secular â—lectors are certaine successors and the Emperour but elective Administrator in relation to the Feuds of the Empire though most absolute as Archduke of Austria Even as the antient lay-Peers of France were not simply subject to so absolute a Monarch as the most Christian King Lupan de Magistrat Gall lib. 1. for the Kings of England the Dukes of Burgondy and the Earls of Flanders acknowledged no such soveraignty Sure if they had been more de jure under the Emperor Menoch consil 92. num 32. Charles the fift would never de facto have professed That in other of his Kingdomes he ruled over servants and subjects but in Germany over Kings Which was suteable to the school divinity of those days as that cautious Cardinal in the case Principes Imperii sunt perfecte domini Cajet in secunda secundae quest 40. art 1. licet habent superiorem Imperatorem non simpliciter sed secundum quid And indeed their holding their rights and royalties of the Empire doth not deny nor diminish the independant supremacy of their authority as judicious Grotius Obligatio feudalis maxime apud Germanos non demit jussummi Imperii as it is notoriously knowne that they have plentitude of power to make alter repeale lawes and change the forms of judicature in their owne Dominions
good leave to beleeve That though the Prince Elector Palatine may for a time be delayed upon this title of proscription yet the president is so unpleasing and pernitious to the Princes of Germany and Italy and so strangely disguised that it will never be digested as a Law though it passe the Inquisition for if there were such a way opened to ambitious Pretenders they would with facilitie fashion and frame new titles according to their turnes How easie a matter were it for the Emperor or any such Potentate to picke a Turkish quarrell with a Feudatary and then by provoking dishonourable destructive demands proceed plausibly to the possessing of their Dominions So that we must conceive that these Dominationum provisores these Purveyors for Usurpation our modern state Empericks did not in good earnest produce this sublimated Spanish Speculation thus prepared to be used in ordinary cases but onely to try this cruell conclusion or else they were cast upon this fancie of their faction fuming from Salt-Peter out of necessitie having nothing better to pretend For we must not bee so simple as once to dreame that these prodigious Politicks who have the eyes of all the world upon them in a monstrous admiration and have their eyes upon all the world in a vast ambition we must not surmise that they could be so much mistaken as deliberately to deliver in determination that this Title should have any ground of true perpetuall policie in it So that were they not foyled with the fatall foulnesse of the cause they are men so absolutely and insolently able not confined nor controlled within the compasse and commission of their conscience so solely versed in the varieties of refined wickednesses Creatures so daily devoted to the affaires of this world and that with such secular solicitude as if they beleeved there were not another were they not fascinated or under an ill unpleasing Planet or rather Comet of Combustion they would be able to invent a better title or in judgement not depend upon this Sure the snccesse they have had the confidence of their owne Reputation and the undervaluing others hath made them forget or forsake both Law and Reason in urging so vaine a title for so main a matter so that nothing can be affirmed with lesse truth greater impudence and more danger But to come close to discusse this Title I must not admit that which pleaseth some and is presumed by others That the titles of absolute Princes are to be tried by the Roman Civill Lawes but according to the Lawes of Nations without it bee in such places where the Civill Law is so received by many Nations or in such cases as the particular customes and constitutions of a Countrey doe not extend to determine them Feud lib. 2. tit Nam etsi leges Romanae non adeo vim suam extendant ut usus vincant aut mores peritus tamen legum sicubi casus emerserit qui consuetudine Feudi non sit comprehensus Lege scriptâ uti potest Now if this be true in generall then sure it holds harder for the favourable restitution of an antient successive Prince unto his suspended rights than for the justifying of an odious and feigned forfeiture as a title for an elective Emperour who is onely Administrator as chiefe in trust to transferre his feudall dignities and dominions to any other Especially considering the Prince Elector Palatine was no way accessary to the crime pretended as the ground of his fathers proscription beeing then in minority and since tendering himselfe in humble manner to his Imperiall Majestie for Investiture And this course free and magnanimous Emperors when by Law they might have done otherwise have used royally to consider and restore the noble heires of proscribed Princes yea even where they had right to possesse ad placitum As the proud and otherwise peremptory Persian Monarchs Brissonius de regno Persic lib. 2. never admitted any totall confiscations and Iulius Caesar Suet. in Caes cap. 41. revocavit admisit ad honores proscriptorum liberos especially if the Heires were many the clemencie a vertue as wel of policie as piety in a Prince hath an influence upon the good of the best of mankinde And it was that cruell illiterate Dictator Sylla Sylla libertatis hostes saevissimus mortalium proscriptionis tabulam novi generis edictum primus posuit Flor. lib. 3. cap. 21. that first made Lawes utterly to exclude the children of banished Senators whereby he forfeited his discretion and proscribed his own fortune by losing many meanes of mounting to an absolute setled Monarchy and was devoured of vermine as a monster in nature And let it be remembred how moderately the Emperor dealt with the Prince of Anhalt who was the author and Counsellor of Prince Fredericks proceedings Sure there was something in that Princes fortune that was worth the pulling for Delictum praetextus erat divitiae dignitates veracausa To take away life or liberty to obtain great mens livelihoods is a practise evill and antient Iust Trajan expressed his spleen well against such confiscations and Iustinian absolutely prohibits them C. de Bonis Proscriptoâ— But I intend not to take so much liberty in the shaking off this title of forfeiture as to raise arguments from the nature of the cause in relation to the reason and Lawes of Nations but am contented to submit my selfe to the Civill and Canon Lawes with the feudall Constitutions of the Empire with good assurance that they admit not of any such damming deportations to the prejudice of princely posterity And now if Dominick de Iesu Maria that sang Masse before Prague when it was taken or Hyacinthus the Capuchin or Caraffa the Nuntio that begged the Library of Hidelberg or any of that factious fraternitie who have been the grand sticklers in the stirre and stormes of Germany if they would assure me as they are the Ministers and minions of Spain that the Catholique King as the elder House of Austria will not take it as an indignity to hold that the Fends which he hath from the Empire are in danger of forfeiture upon supposed misdemeanor and ingratitude then wee would more easily yeeld that the Prince Elector Palatine is something in the same condition Couaâ—uâ— in relec c. peccatum § de potest temporal n. 9. Bannes secunda secundae quest 40. art 1. But I shall hardly beleeve that the mighty Majesty of Spaine will ever brooke any such formall debasements as Philip the second his great Lawyer and SchoolmaÌ„ster cleeres the case For either the King of Spain might actually alter his Feuds into proprieties and proper inheritances when he was Charles the fifth and Emperor Sleid. in fine Phil. Comin p. 147. as he got off that light subjection due to the French King as he was Earle of Flanders and a Peere of France making that independant when he had his Lord Francis the first his prisoner Or else the right
might be antiquated and extinguished or relinquished by non-claime and so left as in the originall onely there may be still on foot some empty formes of investiture nothing to the hurt or hinderance of a free full and finall possession in right of patrimony Decifio Rotae Romanae 59. n. 3.4 5. Sure I am that the Councell of Spaine hath concluded so against the right of the Church of Rome in the Case of the Kingdome of Naples and it may be probably presumed if wee needed such proofe that the Palatinate was made free upon the same grounds when Rupertus Prince Elector Palatine was Emperor But to fall upon the bare businesse were I better instructed in the Novell and therefore suspected forme of the sentence of this particular proscription than I am I would not cavil at words so as to ground exceptions against the effectuall execution of it And yet the alteration of formes workes mischievously into the matter when they are extravagant and extrajudicially procured But I need not stand upon that for there are many fundamentall and principall arguments essentially in it that layd together will manifestly amount to a most notorious nullity and afford matter for a just protestation As to instance the incompetencie of the Iudge the falsitie of allegations the defect of judiciall proceedings The first cause of nullity is The incompetencie of the Iudge not onely in respect of his person past and present interests a party Parsons in Doleman pars 1 ◠◠an enemy for his utmost ends but also in regard of his power for the Emperor hath been in effect both Iudge and partie which is no where legall especially in the Empire of Germany and in such a case where Ferdinand was to proceed but as a private person if then he had been Emperor beeing the contention betwixt him and Prince Fredericke was about an Imperiall Feud neither of their Inheritances And indeed hee is not so sole and supreme in rebus arduis as to doe any extraordinary Imperial action without the convocating consulting and consenting the States of Germany in a Dyet As it was his Majesties answer to the English Embassador That he could not restore the Prince Elector without their consent And if not shew favour without them then much lesse capitally condemne any of the supreme Colledge of the sacred Empire to the prejudice of the royal successors without the same representation of the Empire But it is more the probable that the cause was never freely opened nor faithfully proposed but either there was Impedimentum Culposum or Collusorium Conventus Malhus 1619. that held them off from considering it or else they did never cleerely and concludingly consent to it nor were solemnly required More majorum collegiatlitèr particulariter but singly surprised with promises of spoiles proposals of owning their pretensions provoking them as the Princes enemies or over-awing them as obnoxious and so tooke them in onely as a pompous presence to countenance that in publique assembly which was concluded of and packt in private way at Court Otherwise they would wisely as men awake and aware have jointly opposed to prevent the president not knowing how soone it might be their owne cause which they could not but conceive to be a great part of the designe And that they did so may be reasonably conjectured not onely because the contrary is not expressed but also by reason it is the course and custome of that Imperiall Councell especially in tender cases of such considerable consequence onely to canvase the cause and deferre the decision till the next meeting As Aeneas Sylvius who was used to such Assemblies and blames the injury of his office being Secretary to Frederick the 3. and so conjured silence yet he speaks out thus much of them Silvius epist l. 1. epist 72. Foecundae sunt omnes Diaetae quaelibet in ventre alteram habet Diaeta non est quae non Diaetam pariat or else they were so cautious as not to suffer the sentence to passe simpliciter sed provisionaliter Yea many of them were so unsatisfied that they protested against it as appeares by the severall protestations made by the Embassadors of the Duke of Saxony the Marques of Brandenburg with the whole house of Palatine as well Roman reformed Catholiques except the Duke of Bavaria before whom there were neere twenty in succession that had right to the dominions and dignity electorall Yea further it was generally permitted by inserting a promissory oath that the act should not prejudice posterity all that they were wrought to was to send some monitory Mandates which the Emperour had concluded without them neither to cite prejudge nor condemne but onely ad paenitentiam which they still admitted with this clause Saving the constitutions of the Empire Of which the Emperor accepted So that what they did collectively considered as a representation of the Empire excluded not Prince Fredericke from his legall remedies of appeale if the sentence had not been void without one of revision or restitution in integrum Yea it may very well be conceived that they had a respect unto the relaxation or tacite expiration of the penalty in relation to his person especially being he was not concluded contumacious not onely because he could not apprehend any assurance of safe conduct though he had submitted to the proposed conditions with losse of honour but also by reason that sentence began to be executed some moneths time before the declaration of it Et in re dubiâ poenam excludi oportet maxime in causâ nobilissimi principis The second cause of nullitie is the falsehood of allegations for sententia ex falsis allegationibus falsis instrumentis vel falsis testimoniis appellatione nulla est But this cause fundamentally alledged for the pronouncing and executing this sentence especially in relation to the present Prince Elector is full of feigned and frivolous uncertainties at the best when as in such capitall causes the evidence ought to be clear and certain Now the ground of this sharpe sentence put on so hard to the perpetual prejudice of the house of Palatine was That Frederick was guilty of treason against the Emperor and so by vertue of an Imperial Bull banisht and upon proscription his Regall rights forfeited for ever begg'd translated and distributed to the Duke of Bavaria and other Auxiliaries Now doe but consider the fraudulent suggestions and false inferences weaved and wound up in this plausible allegation all which are as new and as false as a Iesuite so that what they take as cleer principles not needing any proofe wee take as grosse impudent errors which need no confutation First it is surmised as a fiction in Law to ground an Inquisition and proceeding Ex Officio against a Royall person That his father was guilty of rebellion against the Emperor which is far from a true accusation being not onely improbable but also politically impossible yea pregnantly and apparantly otherwise considering
men to assume inferre and consider L. 2. C. ad L. Iul. de Vi. what in these premises is proposed remembring that Transitoria tantum bona quae ad haeredes extraneos veniunt in publicationem veniunt fiscus est loco haeredis extranci But how ever it fared with the father yet the present Prince hath so much right to present possession that if he bee long delayed or deludingly discontinued from investiture it may amount to a wroÌ„g sufficient to cause the Emperor to lose his Imperiall right in that feud as the most free Feudists Ex omni Felonia qua vasallus feudo privatur Laud. in li. 2. Feud tit 47. § Qualiter Domini Dominus proprietate privetur especially being but Administratour Fidei-Commissarius Imperii non dâ—recte immediate Dominus and what may then follow I leave to them to conjecture who are the present possessours and perswaders of the deteinure when as it is dayly and duely demanded by those that have power to command it If the Prince Elector Palatine were not an essentiall member of the Empire but a pure poore vassall under the power and pride of the Lording Longobards who were the first authors of pure feudal titles and granted all dominions Ad bene placitum Or if he had been a simple subject of the Lombards Conqueror Charles the Great as he was indeed one of his Assistants Aug. de Ancon de potest Eccles Q. 36. art 4. and holds some of Rights from that service then there might have been some reason of a perpetuall forfeiture Maximè si Feudum fuisset novum vel privatae personae But the Elector being an absolute Prince and the Feud Antiquum Regale masculinum militare perpetuum pactionatum successivum there must be more done than is yet devised to make this forfeiture firm to the Occupant the Emperor being neither a Conqueror nor an hereditary successor Nam Feuda Regalia fortissime Deâ—â—no Sen. Pedemont 29.11.5 f. 8.40 praescriptione pacto acquiruntur privativè quoad investientem So that this is not only according to the laws of Germany which were enough for the security of the cause but also suteable to the modern moderate interpretations of the ordinances of more absolute States as it is practised law in the Kingdome of Naples and other Dominions of Italy Caesar Vrsel Decis Neap. 282. n. 20. That Delictum patratum contra person im Domini directe etiamsi sit crimen Laesae Majestatis Feudum ad liberos masculos derivatur si sit antiquum ex pacto providentia concessum Decisio Pedemont 29. n. 20. Thus it is also amongst the Savoyers If the dominions or the dignities were an English Scottish or French Feud which are consuetudinary hereditary and may be alienated bequeathed and forfeited as the estates of all the lay Peeres of France where the Crowne is onely a masculine Feud not forfeitable from that Royall Family Tillius de rebus Gal. ca. 4. Were they such a Feud and barely such then they might have bin lost by the default or defeat of a Father if they were had and held as an heire or descended in contemplation of the Fathers acquiring But in Germany they are not cleerly hereditary estates though none are capable of them but heires masculine especially of those Royall more than titular territories and principalities and they must be not common heires but feudall Molin in causa Phil. Lan. Hessiae Consil 1. n. 3. Haeredes feudales sanguinis vel Haeredes Feudales militares non Haeredes simplicitèr patrimoniales and so what they enjoy is by right of consanguinity not as heires or successors Vltimi possessoris Decius Cons 18. n. 4. sed primi acquirentis Now such successors cannot bee put by but with the injury and prejudice of the primitive Investiture which was the foundation of that Feud Neither doth any sentence pronounced against the Possessor dash or diminish what duly descends to that Family Franc. Curt. Iun. Consil 48. n. 3. as Curtius Sententia lata contra Patrem Filiis non nocet in Feudali successione And great reason because such a sonne doth not succeed by right of inheritance but by right of Contract betwixt that Royall House and the Empire and so the fathers fact nor fortune doth not helpe nor hinder him as the Pragmatiques of Italy Feuda ex pacto concessa pro descendentibus de certa familia Senat. Pedemont decisio 139. n. 15. non possunt ad supremum dominum transferri in prejudicium proximorum agnatorum And they give good reason for it Quia quae venit à genere Math. de Aff. Decis Neap. 282. n. 19. semper remanent feuda quae quis à Patre non habet habentur ac si pater non esset And thus I conceive was the course of the Law of England in the Case of Lands entailed by Contract from the Crowne And there is still some footing for this in the Tenure of our Gavel-kinde lands which are not forfeited but the father goeth to the bough the tree of execution the sonne to the Plough and possession And if this be Law and reason in a privat mans case much more will it hold for a supreme Prince an integral member of the Empire who succeedeth to his Imperiall dignity and Dominions by right of most solemne sacred investiture according to the most antient confirmed Customes Contracts Conventions Transactions and Clauses conservative of the most princely Fraternities and Liberties of Germany And therefore they are not to bee detained from him upon supposition of any delinquency or default of his father as that judicious resolute Molineus Concil 3. in caus Phil. n. 9. in the case of the famous Philip Landtgrave of Hesse resolveth Patre moriente moriente naturaliter vel civiliter filius ejus locum ingrediatur non jure communi sed jure prerogato principali id est Lege Imperiali seu simultaniae investiturae sententia contra hujusmodi investituras lata non nocet successori sed statim locum ei aperiat Now to reduce all to a conclusion The last cause of nullity is The defect of judiciall proceedings in Substantialibus and that not onely by a dangerous contradiction in prosecuting a Prince for treason upon inference to the breaking of the undoubted fundamentall Lawes of the sacred Empire but also in respect of the formall proceedings in the sentence of his Proscription For was it not great injustice to question and capitally to condemne a Prince that was never cited Which is essentiall to legall proceedings Quia Citatio est species defensionis Panor in Col. Especially where they could not pretend notoriety of the crime of which we must be tender considering that many great States and Princes sent their letters of congratulation and so of approbation and yet in the next place unheard unexamined to be so determined of So that if wee should grant that the Emperour might judge in his owne cause yet not without judiciall proceedings The time limited to the Prince also was not competent being but foure weeks to performe all though the proposalls had been reasonable But all this forme that was omitted upon designe was not so much as the extending the execution of the sentence to the prejudice of the Prince in minority unheard unaccused So that tho the ingratitude or what else was pretended against the father which was to be proved pregnantly by five of his Peeres had been a ground for such a sentence yet it being Sententia hominis Feud lib. 4. tit 57. § quot testes and not Iuris it expired with Ferdinand and Fredericke and could never be intended by any true interpretation to reach to posterity So that I much marvell That the Bavarian Proctors of Ingulstadt should pleade and perswade the Duke to persist in his possession especially of the Electoral dignity when as in so doing they put the Emperor upon an action of more insolent example upon no just ground than the Schoolmen or Canonists permit the Pope upon any occasion for their Tenent is Papa non potest Electores Almaniae mutare Aug. de Ancon de potest Papae Q. 35. Art 3. inter alia quia est materia scandali schismatis One would think that they should something regard Scandalum magnatum feare Faction sedition and disturbance in the Empire as a strong reason to restraine the ambition of their Master and cease to urge the Emperor against his Oath to the Electors at his Imperiall Election and to the Pope at his Confirmation and Coronation Vegetius de Re militari li. 1. prefat Let them remember that of Vegetius to Valentinian Nil rectè inchoatur nisi post Deum faâ—erit Imperator