THough I should be loth to do these Ministers of Vsur­pation so much wrōg, as to disable or disparage them in their reputation for action, by not cōceiving that they [Page 2]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 [Page 3]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 [Page 4]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 [Page 5]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 [Page 6]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 [Page 7]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 [Page 8]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 [Page 9]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 [Page 10]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 'twas 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 [Page 11]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 [...]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 [Page 12]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, 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, [Page 13]as Major domus Imperialis, as Provisor, Supplimen­tum [...]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 [Page 14]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 [Page 15]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 [Page 16]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 [Page 17]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 ye [...] 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, [Page 18]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 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 [Page 19]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 [Page 20]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, [Page 21]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, [Page 22]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 [Page 23]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 Proscripto [...]. 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 [Page 24]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; Coua [...]u [...]. 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 Schoolmāster 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 [Page 25]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 [Page 26]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 [Page 27]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 [Page 28]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 [Page 29]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 [Page 30]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 [Page 31]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 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 [Page 32]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. [Page 33]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, [Page 34]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 [Page 35]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 secu [...]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 [Page 36]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, [Page 37]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 [Page 38]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 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 wrōg 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 d [...]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, [Page 39]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, De [...]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 [Page 40]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, [Page 41]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: Ʋltimi 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, [Page 42]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 [Page 43]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 [Page 44]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 [Page 45]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, fa [...]erit Imperator.