A DISCOVERY of the false Grounds the Bavarian party have laid, to settle their own 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.  
¶ Seen, 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 HONOURABLE, THE KNIGHTS, citizens, AND BURGESSES, NOW ASSEMBLED IN THE HOUSE OF COMMONS.   

The Preface.  
WEre it not that those braving Bavarians and Imperial Instruments, who pretend piety, justice, and devotion in all their actions, are still 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; we 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 College and Council, mixed of Jesuits, de facto, & in voto, have given themselves commission, Ex Officio, unheard to determine what may & must ●ed●ne In ordine, to the practical principles of their modern Monkery: The desire that we have to see a safe peace settled in Christendom, hath moved so far, that we 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 pernicious Politics may still advance and prosper in their way, it will be impossible, that the state of the Western World should ever draw near to any degree of Union, though it be but in a mutual 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 fear and fly practic questions, and public quarrels, have reason to come on one step out of their reservedness, and declare their opinions; otherwise they may get a knock, as standers by in neutrality; when as if they would but speak out, they might discover more than the gamesters, and show how the Check was given. These absolute enemies of states and Churches, who neither regard Prince nor people, but in relation to their own interests, will I hope before long be discovered, and so discarded, as the common Enemies of the peace, liberties, and laws of Nations.   

A DISCOVERY OF the false grounds the BAVARIAN Party have laid, to settle their own 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 loath to do these Ministers of Usurpation so much wrong, as to disable or disparage them in their reputation for action, by not conceiving that they have been the Projectors of all the perfidious & cruel practices, that have been exercised for these last twenty years upon Germany: yet I will hold off from relating any of them. For if I should resolve to represent them in their true Catholic colours, I could not tell what Ink to use, whether black, or red; being I should never get black enough, though made of the bitterest galls, to shadow out the dismal darkness of their designs; and if I should take red, to express the bloodiness of so long lasting a massacre, they may conceit that I applaud the action: for they use so to register victorious, successful villainies, with a Rubric in their new Gregorian Calendar. I omit them therefore, and choose to fall upon a survey, of the false foundations which they have laid, destructive to the good of Christendom.  
These most active Engineers have concluded it as a main masterpiece of their groundwork, 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 falsely procured, that their devoted Protector, the Bavarian, may for a turn at least, be possessed of his Royal 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 own inheritance; and I know not but these Projectors may delude the old Duke their new Master, and only shuffle with him, upon subtle, yet shallow principles, of his succeeding security, using him as a divertive fontinel, to turn a humour, though as yet it be an hard matter to distinguish the designs of the Spaniards, Imperialists and Bavarians; who seem 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 Electoral dignity appendent to it, as they have ptetended arguments to raise a question, to make it a controversy, & then by sequestration got present possession, and so by time and reputation of prospering, raise a title.  
But they dare not proclaim, nor profess the true reasons, which are Ambition, & Usurpation, to the suppressing of liberties and Religion: therefore they well and wisely, to divert and distract, ventured to vent and publish some accidental occurrences which fell in with the course of affairs, grounding all upon the events of their prevailings, and upon such slender proposals seem to plead plausibly; when as if they would deal ingeniously, and take a true view of the entire business, they are too able (not to stand upon their honesty) to be deluded by any such overtures. For they know full well, that the original of the War in Bohemia, about the translation, transposition, and elective tradition of that Crown, was set on foot by the Emperor's practice, and party, not by the Princes. But I will not drive the cause so high, as to discuss or discover the spring of that fearful flood, neither will I mention the right of the Nobility and Commons of Bohemia in electing; but I will (if it be but to please and pacify them) suppose all true, which they know to be most falsely suggested, and consider whether the practical deductions, which they have drawn from such principles, be clear, concluding, and of fundamental force, to detain or discontinue the Prince Elector Palatine from his undoubted royalties and dominions. Let it go then for granted, that all Prince Frederick did in the business of Bohemia, 
Les Conditions de la Restitut. entiere du Palat. & Electorat.  is no further right, than the jesuites will have it so; yet it will not fairly follow, upon free consequent, that all which the Emperor hath been pleased to make him suffer, as correspondent to his carriage, is so fare from wrong, as they would make it; neither do I believe that the Emperor himself did so conceive it; but he was cast upon that course by the currant necessity and excursion of the War. And therefore what stands now determined, grounded merely upon point of fact, which was full of scruple, scandal, and casual, not deliberately intended, can have no strength of right, though since, more reasons are invented for the total justification and ratification of the proceed, than did at first persuade the practice, or can arise from the natural naked interpretation of the action. For though the jesuites 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 Arms) must not be like a Delphique sword, to cut off on all sides, as occasion shall serve, both in retraits, truces, and times of treaty: and though the Imperial Majesty (as powerful Princes use to do, whose Confessors have no certain rule of conscience) raised and enlarged his pretensions, according to the prosperity of his proceed; invading, possessing, deposing, and disposing, of the undoubted dominions of the Prince, translating his Electoral 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 solemn significant forms and ceremonies, of personal banishment, dismembering his Dominions, triumphant Confirmations, and Congratulations, of the Duke of Bavaria, his personal Administratorship, of the Dignity Electoral: 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 Electoral, in an individual, sole, and supreme way.  
Now let us see what the jesuits can say, for the present detaining of these Rights; which they must ground upon the Emperor's right to dispose of them: and all that we can suppose in that way may be reduced to right of Arms, and right of Forfeiture. But neither of these are so clear, or of such validity, as to exclude the House of Palatine, or to prejudice the present prince. To consider first, the title from his Arms, they were offensive, aggressive, and by way of revenge: Now to make that Title hold on perpetually, to prejudice a Royal Family, it must be supposed first, that the Emperor had injury offered him by Prince Frederick. Secondly, That the damage is not yet satisfied. Thirdly, That the possession by Arms was solemnly obtained according to the right of War. None of which particulars are so clear, as they ought to be in so capital a cause.  
First it may be averred, and not without good ground, that the Emperor was not directly injured, being the contention was not betwixt them as he was Emperor, but as one of the Archdukes of Austria, about the Crown 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 been supreme, though not sole judge, if the cause had not been his own. But if the prince did after in the course of the war, offer any indignity to his Imperial Majesty, (as they urge it) than I desire to know upon what consideration the Emperor took up arms against the Prince Elector, to the possessing of the Palatinate, after that Frederick had in a public way renounced his right in Bohemia; whether as against a foreign enemy, or against a domestic subject: none will say against a Foreigner; then as against a subject, who was conceived a rebel and a Traitor; otherwise no war, but praedatory proceed; and he could not lawfully make an offensive war upon him: for an Elector that hath royal Dominions in a successive way, is not such a simple subject, that he can be a Rebel or a Traitor to the Emperor of Germany, with any prejudice to his princely Family; and if he be such an ordinary subject, than it is as to the ancient Kings of Alemany, or to the now Roman Emperor; (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 ancient by hundreds of years 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 years, 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 design, to dash, disparage, and indistinguish the old Dignities. And before they could not be subject; for the Roman Empire did never reach over the Rhine, into the largeness of Oriental Germany; as we know Charles the Great was very careful to limit the bounds of his new acquired Roman Empire, 
Schafnaburg. 209.  that his Francs in great Germany might still be free, 
Molin. de Consuet. Paris. num 8.  Jure Francorum, seu lege Salica. And sure the subjection that they own as to the Kings of Almany, is limited, too short and too weak to uphold the claim the Jesuits clamour for; being every Prince was anciently most absolute in their own 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 Royal Rights, is, 
Decisio Pedemont. 29. num. 4.  That they own the Emperor, not simple subjection, but respective homage; Officeum pactum, non obsequium: and so are supreme in their own territories; especially seeing the secular ●lectors are certain successors, and the Emperor but elective Administrator, in relation to the Feuds of the Empire, though most absolute as Archduke of Austria.  
Even as the ancient lay-Peers of France were not simply subject to so absolute a Monarch as the most Christian King: 
Lupan. de Magistrate. Gall, lib. 1.  for the Kings of England, the Dukes of Burgundy, and the Earls of Flanders, acknowledged no such sovereignty. Sure if they had been more de jure, under the Emperor, 
Menoch. consil. 92. num. 32.  Charles the fift would never the facto have professed, That in other of his Kingdoms he ruled over servants and subjects, but in Germany over Kings. Which was suitable 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 independent supremacy of their authority (as judicious Grotius) Obligatio feudalis (maxim apud Germanos) non demit jussummi Imperii, as it is notoriously known, that they have plenitude of power to make, alter, repeal laws, and change the forms of judicature in their own Dominions, without the knowledge of the Emperor, wage & proclaim war and peace in their own names and power; all which appears by such authentic antiquity, both in laws and proceed, that the Archbishop of Mentz, in Council at Frank ford affirmed, That the government of Germany was Aristocratical; 
Clapmarius. de Arcanis Reipub. lib. 5. ca 20.  giving the Emperor only the pre-eminence to be Precedent in the extraordinary Imperial Assemblies. So that if the power and privileges of Bulla aurea, mortgaged in the hands of the Electors, 
Sleid, in fine Philip. Com. inej pa. 200.  were duly observed as they would, Simo 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 ●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 be criminally condemned by the Emperor, especially for business that passed and had the rise in an Inter-Regnum. And this that we plead for is not without precedent, in the case of absolute Princes, possessed of Feuds, and condemned as Delinquents. Robert King of Naples was cleared from treason against the Emperor, 
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 arms against the Kings of England, as their rebels, if they offended them, during the time they held the Dukedoms of Aquitaine and Normandy, as a feudal Inheritance. Or the Emperor may as well war upon the French King as a Rebel, being his Delphinate is a feud of the Empire. So in like manner he may come upon the Kings of Poland and Denmark; or upon his grand Cousin of Spain (if he dare) for Milan, and other of his Dominions, held as he is a Feudatary to the Empire. But sure they may be secured at an easy rate: as Charles the fourth, for one dinner near Avygnion, 
Avent. Anal. lib. 7.  gave up the acknowledgement due Arelatense regnô, as Aventine the Bavarian relates it. Therefore this ground of war was doubtful, if not unlawful, being unusual, 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 real wrong ought not to be driven to the utter ruin, especially of otherwise well deserving subjects, or weak neighbours: lest it truly seem only a colour, to exercise cruelty, tyranny, 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 jesuited 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 mortgage to the Emperor's use, for the payment of the Duke of Bavaria, the King of Spain, and the Archduke of Austria, as Auxiliaries, in the execution of the sentence against Prince Frederick, with the dignity Electoral administered by the Emperor's absolute order; not to mention the great confiscations. So as I believe, some of the jesuits so pity the satisfaction that hath been taken (especially considering the Royal Mothers depriving of her jointure) that if the Prince will but change his faith, these will soon help him to change his fortune. And what ever is now pretended and practised, the Emperor could not intent to continue the possession, or the disposure of the dignity Electoral, any longer than the Prince Elector Palatine should be at age to receive them: as is plain, not only in the second condition of restitution, tendered by his Imperial Majesty to the king of Great Britain; but also by the limited investiture, 
Les Conditions de la Restitution entiere du Palatinat. & deal Electorat. 1623. Aurea Bulla apud Schafnaburg. 279.  that Bavaria seemed contented to take it withal, which was according to the authentic 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 firm foundation for the continuing of the present possession and proceed.  
Thirdly, we may as easily discover that the line in which those Armies marched and mastered, was not direct and legal, according to the solemn right of waging war: this fact might with more ease and certainty be considered of, than the point of right that entered it; even as there is more confidence in judging of Mathematical engines, than of moral actions. Many manifest passages, of praedatory and perfidious ambition, were apparent in the manner and time of avancing those Armies towards the Palatinate, which well weighed, may amount to a nullity of the right pretended from their proceed. For what solemn justifiable war was ever yet made upon a neighbour, at least in a vindictive way, without a legation to treat of injuries; and then an indiction, and due denunciation 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 ways of Embassy; and ye● in the interim, the Countries surprised, and possessed, in abuse of Treaty, before the face, and against the protestations of the present Ambassador, and so by the Law of Nations is to be restored in integrum. As for indiction, it may be the jesuites, 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 Martial Laws, 
Tullus, disciplinam omnem militarem condidit. Flor. hist. l. 1. cap. 3.  especially meeting with them in Tully's Latin, which is Language too plain for such foul carriages to brook: 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 fit to be bold Heralds to proclaim arms, or insinuating explorators of Counsels, 
Lonigus Aphor. 14.  than faithful Faeciales, to judge and determine of causes, and just proceed of war: And so I submit these supposed grounds to their judgement, who choose to measure titles by the line of equity, and not by the layst of ambition.  
It remains then in the next place, that we consider the Emperor's power and right, to dispose of the Palatinate, and the dignity Electoral, by virtue of forfeiture and seizure, as escheated and confiscate to his Imperial Crown. But before I go any farther, I must crave pardon (by these Ecclesiastic Statists good leave) to believe, That though the Prince Elector Palatine may for a time be delayed, upon this title of proscription; yet the precedent is so unpleasing and pernicious to the Princes of Germany and Italy, and so strangely disguised, that it will never be digested as a Law, though it pass the Inquisition: for if there were such a way opened, to ambitious Pretenders, they would with facility fashion and frame new titles, according to their turns. How easy a matter were it for the Emperor, or any such Potentate, to pick a Turkish quarrel 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 Empirics, did not in good earnest produce this sublimated Spanish Speculation, thus prepared, to be used in ordinary cases; but only to try this cruel conclusion: or else they were cast upon this fancy, of their faction, fuming from Salt-Peter, out of necessity, having nothing better to pretend. For we must not be so simple as once to dream, that these prodigious Politics, 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 perpetual policy in it. So that were they not foiled with the fatal foulness of the cause, they are men so absolutely and insolently able, not confined nor controlled within the compass and commission of their conscience, so solely versed in the varieties of refined wickednesses, Creatures so daily devoted to the affairs of this world, and that with such secular solicitude as if they believed 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 own Reputation, and the undervaluing others; hath made them forget or forsake both Law and Reason, in urging so vain a title for so main a matter; so that nothing can be affirmed with less truth greater impudence, and more danger.  
But to come close to discuss 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 Civil Laws, but according to the Laws of Nations: without it be in such places where the Civil Law is so received by many Nations; or in such cases as the particular customs and constitutions of a Country do 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 general, then sure it holds harder, for the favourable restitution of an ancient successive Prince, unto his suspended rights; than for the justifying of an odious and feigned forfeiture, as a title for an elective Emperor (who is only Administrator, as chief in trust) to transfer his feudal 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 father's proscription; being then in minority, and since tendering himself in humble manner to his Imperial Majesty 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 heirs of proscribed Princes; yea, even where they had right to possess ad placitum. As the proud, and otherwise peremptory Persian Monarches, 
Brissonius, de regno Persic. lib. 2.  never admitted any total confiscations: and julius Caesar, 
Suet. in Caes. cap. 41.  revocavit & admisit ad honores, proscriptorum liberos; especially if the Heirs were many, the clemency (a virtue as well of policy as piety in a Prince) hath an influence upon the good of the best of mankind. And it was that cruel illiterate Dictator Sylla, 
Sylla libertatis hosts, & saevissimus mortalium proscriptionis tabulam (novi generis edictum) primus posuit, Flor. lib. 3. cap. 21.  that first made Laws, utterly to exclude the children of banished Senators; whereby he forfeited his discretion, and proscribed his own fortune, by losing many means of mounting to an absolute settled Monarchy, and was devoured of vermin, as a monster in nature. And let it be remembered, how moderately the Emperor dealt with the Prince of Anhalt, who was the author and Counsellor of Prince frederick's proceed. Sure there was something in that Prince's fortune that was worth the pulling for; Delictum praetextus erat, divitiae, & dignitates, veracausa. To take away life or liberty to obtain great men's livelihoods, is a practice evil and ancient. Just Trajan expressed his spleen well against such confiscations; and justinian absolutely prohibits them. 
C. de Bonis Proscripto●.  But I intent 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 Laws of Nations; but am contented to submit myself to the Civil and Canon Laws, with the feudal Constitutions of the Empire, with good assurance, that they admit not of any such damning deportations, to the prejudice of princely posterity.  
And now if Dominick de jesus Maria, that sang Mass 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 fraternity, who have been the grand sticklers in the stir, and storms of Germany; if they would assure me, as they are the Ministers and minions of Spain, that the Catholic 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 misdemeanour and ingratitude: then we would more easily yield, 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 believe, that the mighty Majesty of Spain will ever brook any such formal debasements, (as Philip the second, his great Lawyer and Schoolmanster clears 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. Coming. p. 147.  as he got off that light subjection due to the French King, as he was Earl of Flanders, and a Peer of France, making that independent, 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 original; only there may be still on foot some empty forms of investiture, nothing to the hurt or hindrance of a free, full, and final possession, in right of patrimony. 
Decifio Rotae Romanae 59 n. 3.4. & 5.  Sure I am that the Council of Spain hath concluded so, against the right of the Church of Rome, in the Case of the Kingdom of Naples: and it may be probably presumed (if we needed such proof) that the Palatinate was made free upon the same grounds, when Rupertus Prince Elector Palatine was Emperor.  
But to fall upon the bare business; were I better instructed in the Novel, and therefore suspected form, of the sentence of this particular proscription, than I am; I would not cavil at words, so as to ground exceptions against the effectual execution of it: And yet the alteration of forms works mischievously into the matter, when they are extravagant, and extrajudicially procured. But I need not stand upon that; for there are many fundamental and principal arguments essentially in it, that laid together, will manifestly amount to a most notorious nullity, and afford matter for a just protestation. As to instance, the incompetency of the judge, the falsity of allegations, the defect of judicial proceed.  
The first cause of nullity is, The incompetency of the judge, not only 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 judge and party; which is not where legal, 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; being the contention betwixt him and Prince Frederick was about an Imperial Feud, neither of their Inheritances. And indeed he is not so sole and supreme in rebus arduis, as to do any extraordinary Imperial action, without the convocating, consulting, and consenting the States of Germany, in a Diet: As it was his Majesty's answer to the English Ambassador, That he could not restore the Prince Elector without their consent. And if not show favour without them, then much less capitally condemn any of the supreme College 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 clearly and concludingly consent to it; nor were solemnly required, More majorum, collegiatlitèr, & particulariter; but singly surprised, with promises of spoils, proposals of owning their pretensions, provoking them as the Prince's enemies, or over-awing them as obnoxious: and so took them in, only as a pompous presence, to countenance that in public assembly, which was concluded of, and packed in private way at Court. Otherwise they would wisely, as men awake and ware, have jointly opposed, to prevent the precedent; not knowing how soon it might be their own cause, which they could not but conceive to be a great part of the design. And that they did so may be reasonably conjectured, not only because the contrary is not expressed, but also by reason it is the course and custom of that Imperial Council, (especially in tender cases, of such considerable consequence) only to canvas the cause, and defer the decision, till the next meeting. As Aeneas Silvius, 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 pass simpliciter, sed provisionaliter. Yea, many of them were so unsatisfied, that they protested against it; as appears by the several protestations made by the Ambassadors of the Duke of Saxony, the Marquis of Brandenburg, with the whole house of Palatine, as well Roman reform Catholics, except the Duke of Bavaria, before whom there were near twenty in succession, that had right to the dominions and dignity electoral. 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 Emperor had concluded without them; neither to cite, prejudge, nor condemn, but only 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 Frederick from his legal remedies of appeal (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  expiration of the penalty, in relation to his person: especially being he was not concluded contumacious, not only because he could not apprehend any assurance of safe conduct, though he had submitted to the proposed conditions, with loss of honour; but also by reason that sentence began to be executed some month's time before the declaration of it. Et in re dubiâ poenam excludi oportet, maxim in causâ nobilissimi principis.  
The second cause of nullity is, the falsehood of allegations: for, sententia ex falsis allegationibus falsis instrumentis vel falsis testimoniis appellatione nulla est. But this cause fundamentally alleged 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 capital causes the evidence ought to be clear and certain. Now the ground of this sharp 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 virtue of an Imperial Bull banished, and upon proscription, his Regal rights forfeited for ever, begged, translated, and distributed, to the Duke of Bavaria and other Auxiliaries. Now do 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 jesuite: so that what they take as clear principles, not needing any proof, we take as gross 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 Royal person, That his father was guilty of rebellion against the Emperor; which is far from a true accusation, being not only improbable, but also politically impossible: yea pregnantly and apparently 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 he could expect nothing but utter ruin. Something sure there was, that put him necessarily, and therefore warrantably, upon that course he took: certainly he never resolved nor reckoned to come within the compass of being 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 himself supreme. Neither was the fact Rebellion, and that according to the German interpretation of such actions, so circumstanced: for after their usages, such enterprises, of free, absolute, successive, Imperial Princes, that are purely, or but pregnantly pretended, for the propugnation and defence of the liberties and Laws of the Empire, 
Waremundus de foederibus part. 2. ca 7.  though they cross and control the proceed of encroaching Emperors, are esteemed as free and as far from the suspicion of rebellion, as that Elective Emperor is from tyranny. and this is evident out of the domestic leagues, 
Molanus, de Fide servandâ rebel. l. 4. c. 5.  and treaties of the fraternities and families royal of Germany; wherein they distinguish even in an exclusive way, betwixt the right and good of the Empire, and the personal interests of the Emperor. But the proceed of that proscribed Prince were of this nature, fairly for the prosperity, those blessed benefits of the peace and liberties, of the sacred Empire; not for a dissolute popular licentiousness, but for political liberties, essential to the well-being of the Empire, which he was bound to maintain 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 undertook, was not only to take short the Austrian tyranny, but also to turn off the design, of delivering up the Crown of Bohemia to the Turk; 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 Frederick being proscribed, upon those conjectured collected crimes, his Dominions, with the dignity Electoral, are forfeit for ever, to the prejudice of his royal Family.  
One would think, That the Emperor in point of honour, or at least out of clemency, should after so long a banishment have called home that Prince, and so have wrought him to himself by royal favours, restoring to him his rights and jurisdictions. His princely predecessors were not wont to be so roughly handled in Germany, even when they ventured upon questionable quarrels: As when Frederick Prince Elector palatine two hundred years since, had the Archbishop of Mentz, the marquis of Baden, 
Aeneas Silu. Epist. 395. li.  and the Earl of Wittenberg prisoners, than the Emperor Frederick the second was contented to use the mediation of his Secretary, Pope Pius the second, and Philip Duke of Burgundy, to compose the business.  
Yea, the proceed of Charles the fift were so fair and friendly with the Prince Elector Palatine, when he fell foul 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' parts secu●us est. And sure it might now have as well been expected, considering the honesty of the cause he undertook. 
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 believe, the relations and reports of Historians and Lawyers, who respect right, and the Emperor's honour, will differ as much from theirs, that reflect only upon point of fact, and the fortunate felicity that attended their fraud and force; as they do that so severely set down the deal and deservings, 
Guifan. in vita justin. & Belizar. p. 41. & 47.  that passed betwixt justinian and Bellizarius the brave German, who was accused of treason against the Emperor, because the Kingdom of the Goths was tendered him by the Nobility, and then he falsely reported to be discarded and ruined (as may be seen in Zetzes & Crinitus, answered by Alciat.) So strange would it seem to wise men, that proceed upon safe and substantial principles, of policy and piety.  
Frederick King of Naples got much honour by a contrary course; when willing to express and assure his favour & forgiveness, 
Paul. jov. de Vir. jilustr. vita Fred.  to the false Factionists of the House of Anjou, bare as an Impress, a Bankers book, figured, 1485 crossed, 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 Frederick the father hath had such trial of Austrian mercy, his posterity have no reason to trust to it, being hitherto handled as if they had been borne heirs of the hatred cast upon their father.  
And now we have discovered, that it is no easy matter to conceive, how the father should forfeit his Countries and Electoral dignity, in respect of his own personal right; therefore much harder to conclude, how his act should disable his heirs; for the Dominions, with the Dignities annexed, are either an absolute, patrimonial propriety; or a feudal successive possession. If an hereditary propriety, than not to be forfeit, because not held of the Emperor; if a feud, then either purely and properly so, or mixed; and if mixed, than the service is not so exact, and set, especially if the lord and feudatory are Peers, in other respects, such a feud is granted, 
Par in parem non habet Imperium.  either for fealty and observance, or charged with an annual pension, or some such tributary, trivial acknowledgement; now if it be granted upon such an acknowledgement, than it cannot be 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 juribus & Honoribus; & if so, in petty rights and jurisdictions; then sure much rather, for the security of those feudal Dominions, that have royal, imperial prerogatives, 
Feud. lib. 4. tit. 56. § quae sint Regalia.  successively annexed to them, by primitive investitures, in a fundamental way. I will conclude nothing upon this, but leave it to active, and rational men to assume, infer, and consider, 
L. 2. C. ad L. jul. de Vi.  what in these premises is proposed; remembering 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 be long delayed, or deludingly discontinued from investiture, it may amount to a wrong sufficient, to cause the Emperor to lose his Imperial 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 administrator, Fideicommissarius Imperii, non direct & immediate Dominus: and what may then follow, I leave to them to conjecture, who are the present possessors and persuaders of the deteinure; when as it is daily and duly demanded, by those that have power to command it. If the Prince Elector Palatine were not an essential member of the Empire, but a pure poor vassal, 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 Lombard's 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 perpetual 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, privatiuè 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 suitable to the modern, moderate interpretations, of the ordinances of more absolute States, as it is practised law, in the Kingdom of Naples and other Dominions of Italy: 
Caesar. Vrsel. Decis. Neap. 282. n. 20.  That Delictum patratum contra person in 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 Peers of France, where the Crown is only a masculine Feud, not forfeitable from that Royal Family: 
tilius de rebus Gal. ca 4.  Were they such a Feud, and barely such, than they might have been lost, by the default or defeat of a Father, if they were had and held as an heir, or descended in contemplation of the Father's acquiring. But in Germany they are not clearly hereditary estates, though none are capable of them but heirs masculine, especially of those Royal, more than titular territories and principalities: and they must be, not common heirs, but feudal; 
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 heirs or successors: Vltimi possessoris, 
Decius Cons. 18. n. 4.  sed primi acquirentis. Now such successors cannot be 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. jun. Consil. 48. n. 3.  (as Curtius) Sententia lata contra Patrem, Filiis non nocet, in Feudali successione. And great reason, because such a son doth not succeed by right of inheritance, but by right of Contract, betwixt that Royal House and the Empire; and so the father's fact, nor fortune, doth not help 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 Crown. And there is still some footing for this, in the Tenure of our Gavelkinde lands, which are not forfeited; but the father goeth to the bough, the tree of execution; the son to the Plough and possession. And if this be Law and reason in a private man's case, much more will it hold for a supreme Prince, an integral member of the Empire, who succeedeth to his Imperial dignity and Dominions by right of most solemn sacred investiture, according to the most ancient confirmed Customs, Contracts, Conventions, Transactions, and Clauses conservative, of the most princely Fraternities and Liberties of Germany. And therefore they are not to be detained from him upon supposition of any delinquency or default of his father (as that judicious resolute Molineus, 
Concil. 3. in cause. 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 judicial proceed in Substantialibus: and that not only by a dangerous contradiction, in prosecuting a Prince for treason, upon inference, to the breaking of the undoubted fundamental Laws of the sacred Empire; but also in respect of the formal proceed, in the sentence of his Proscription. For was it not great injustice, to question, and capitally to condemn a Prince, that was never cited? Which is essential to legal proceed: 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 we should grant, that the Emperor might judge in his own cause, yet not without judicial proceed.  
The time limited to the Prince also was not competent (being but four weeks to perform all) though the proposals had been reasonable. But all this form, that was omitted upon design, was not so much as the extending the execution of the sentence, to the prejudice of the Prince; in minority, unheard, unaccused. So that though the ingratitude (or what else was pretended against the father, which was to be proved pregnantly by five of his Peers) had been a ground for such a sentence; yet it being Sententia hominis, 
Feud. lib. 4. tit. 57 § quot testes.  and not juris; it expired with Ferdinand and Frederick, and could never be intended by any true interpretation, to reach to posterity.  
So that I much marvel, That the Bavarian Proctors of Ingulstadt, should plead and persuade 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, fear Faction, sedition, and disturbance in the Empire, as a strong reason to restrain the ambition of their Master, and cease to urge the Emperor, against his Oath to the Electors at his Imperial 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.