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A01284 The evaporation of the apple of Palæstine: that is, The sifting of the answeres and rescripts, lately given, in the cause of the restitution of the Palatinate Together with a briefe demonstration of the nullities of the clandestine dispositions, by which, the electourship and the Palatinate hath beene transferred on the house of Bavaria. Translated out of Latine.; Pomi Palaestini evaporatio. English Rusdorf, Johann Joachim von, 1589-1640. 1637 (1637) STC 11406; ESTC S102687 54,457 168

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person and obser ultima n. 32. the Ban saith hee expires with the death of the outlawed per L. the crime or punishment of the father can lay no blemish upon the sonne 26. ibi Nor can he bee made successor of another mans offence D. de poenis per L. defuncto D. de publicis judiciis per L. 1. final C. si reus vel accusatus morinus fuerit adde L. publica 3. D. de publicis judiciis allegat infr Secondly he should be compelled to confesse and acknowledge that hee is no Prince of the Empire because he hath need to bee admitted into that order But they who doe not esteeme him for a Prince of Germany that is of the Empire must needs praesuppose him either to have beene a bastard or sprung of some obscure Race and that his Parents were not Princes unlesse they would call him a Prince of England or Spaine or France or some other Empire but this is falfe unlesse that he may bee deservedly stiled a Prince of England as being a Prince of that royall blood as the other is diabolicall The rights of blood inquit lex cannot be taken away by any Civill Law by which the Outlawrie is brought in L. jura 8. D. de regul juris L. jus agnation 34. D. depactis The sonne of the proscribed Prince of Anhalt though taken prisoner in the battell of Prague never needed to be restored againe to the dignity of Princes but ever even in his captivity because himselfe was not proscribed nor could the Ban of his Father by any law bee of force against him he was alwaies accounted and called a Prince even by Caesar and the Imperialists though his Father was not yet discharged of his proscription So also the sonnes of Iohn Fredrick Elector of Saxony were accounted amongst the Princes and acknowledged for Dukes of Saxony and so stiled though their father was then proscribed and in captivity And now who can deny that the children of King Fredericke the Counts Palatine that is Princes of the Empire should be acknowledged for personages of that dignitie The Emperour himselfe calles them by no other name nor otherwise can he call them But it is sufficiently knowne what it is to be a Count Palatine in the Empire and sprung from the Electorall house of the Palatine This name and title belongs to no other man nor is given to any but him onely that is a Prince To be stiled the Count Palatine and reckoned amongst the Counts Palatine is all one as to be a Prince of the Empire in such a ranke and degree as by the order of the Empire is granted to the Counts Palatine which are the first and chiefe amongst other Princes The title of Count Palatine is of a higher esteeme in the Empire than that of Duke and Prince And therefore in the marshaling of their titles and dignities the Princes Palatine preferre the name of Count Palatine before the title of a Duke Are not the Children of King Fredericke sonnes to the Neece of the King of Denmarke by his Sister Are they not Princes of the royall blood of England If they had nothing else to show but this prerogative of birth and the splendour of their fathers linage should adde no honour to them who could deny that they were Princes who durst presume to dispute and take away this privilege from them derived unto them from their mother their Grand-mother and their Great Grand-mother all both Queenes themselves and Kings daughters for any sentence against their father And therefore by what law or ground is it ordered that Charles Lodowicke the Electour borne Count Palatine and that litle lesse than three yeeres before his father was proscribed should need to bee restored into the number and degree of the Princes of the Empire It is great cruelty to compell the sonne by his owne confession and acknowledgement to iudge and declare his owne father whom in his soule and conscience he doth conclude guiltlesse for a Rebell Enemy and Traytor to Caesar but more cruelty if he be constrained and enforced to confesse himselfe an offender who is no way conscious of any offence nor by reason of his infancy could doe any and so deprive himselfe of his priviledges dignity and prerogative of his parentage But it being granted which can never be proved that the father was a most hainous offendor and had committed rebellion and treason in the highest degree and was therefore justly condemned to banishment and deprived of all rights and priviledges yet this sentence ought to be no plea in barre against his children conceived and borne before sentence of their fathers proscription especially in those things which concerne that dignity which was borne with them their privilege of nobilitie and such things as descend not from the person of the father but are due unto thē by right of blood the right of their family by the covenant and transmission of their fore-fathers and by the disposition of the Law as are the Electorate and the Principalitie of the Empire that is the royall antient Fees which come not by name of inheritance nor by succession of the father but by right of the first and Simultaneous investiture and the grant of the first acquirer c. 1. § postea vero gloss in d c. § cum vero Conradus in verbo frater lib. 1. de fend tit 1. De his qui feudum dare possunt Baldus ad Rubric de succession feudi ad § Hoc quoque n. 4. The sonne saith he comes not in as a common heire but by right of blood which is unchangeable in c. 1. § finali Evae fuit prima causa benefic amittendi By birth-right saith he forme of investiture being set down by the Lord from the tenor wherof there must be no variation the son succeedeth in the fee. Iulius Clarus prime Chancellour to the King of Spaine regent in the province of Millain lib. 4. sentent feudum q. 66. proveth that the crime of the Father doth not exclude the son from the antient fee lib 5. sent § laesae Maiestatis n. 10. that the punishment of the Father for high treason is of no force against the children which are borne and conceived before their fathers trespasse upon which Baiardus noteth that the Fathers punishment is praejudiciall to the children only in those things which descend to them from the person of their father not in other things as namely those fees to which they succeed by covenant and provisoes Adde hereunto Boerius who decision part 1. q. 10. n. 6 affirmeth that the sonnes for the Fathers offence cannot be deprived of the estate setled upon them before the offence done that the sentence hath no force against them which are borne before but onely after the offence committed Cynus in d. l. Quisquis Alciate who Consil 467. n. by the common received opinion denyeth that the sentence concerneth those children who are lawfully conceived and borne