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CHAPTER V: Of the Power of the Emperor, as it now stands limited by Treaties; and the Laws and Customs of the Empire; and the Rights of the States of Germany. - Samuel von Pufendorf, The Present State of Germany [1696]

Edition used:

The Present State of Germany, trans. Edmund Bohun, edited and with an Introduction by Michael J. Seidler (Indianapolis: Liberty Fund, 2007).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER V

Of the Power of the Emperor, as it now stands limited by Treaties; and the Laws and Customs of the Empire; and the Rights of the States of Germany.

Of the Limits set to the Imperial Power.1. I have already shewn by what degrees and upon what occasions the Nobility [proceres] of Germany mounted themselves to that excessive height of Power and Wealth, as is wholly inconsistent with the Laws of a [regular]+ Monarchy. Nor is it worth our wonder, that when the Election of the Emperor in aftertimes was devolved upon them, they set their Hearts upon the preserving what [power] they had gotten. By this Change in the State of Affairs the Kings (of Germany) lost the Power of Disposing or Governing as they thought fit, the Concerns of that Nation, and were necessitated to consult the Princes [procerum] in things of great moment, and transact more of their business with the States by their Authority, than by their Soveraign Power.1 And there is no question to be made, but the Princes inserted a Clause to this purpose very early into the Coronation Oath of Germany, (which is usually administred to all Christian Princes, [in a very solemn manner,]+ upon their <83> Accession to any Crown) viz. That the King should Promise and Swear to Defend all the Rights of all and singular the Inhabitants [each and every citizen] of Germany, and observe and keep all the laudable Customs in that Kingdom [Empire] received and used.

But whether in process of time any particular Laws were added [to the old]+, and comprehended in Writing, is not so manifest, because before the times of Charles the Fifth, we have no Copies [examples] of any such Capitulations or Agreements; and [those that are pretended to be more ancient, are of no great certainty].a And whereas it is said in the Golden Bull, [that] The Emperor shall presently [upon his election] confirm all the Rights, Priviledges, and Immunities of the Electoral Princes, by his Patent [in writing and] under Seal, this seems to belong only [apply specifically] to them, and therefore is a very different thing from the Agreement [an article]b by which the Emperor is [now]+ obliged to engage for the Liberty or Freedom of the whole Empire. Now, the Reason why the Electors desired to have Charles the Fifth bound to them, in so many express and tedious Articles and Covenants, was, That they considering the great Power of that Prince, his Youth, High Spirit, (testified by his Motto [Plus ultra) and his other Advantages],c feared lest he should imploy [the power of] his Patrimonial Estates to subdue the German Nation [the Germans], and took this way, to make him consider, That he must Govern Germany after another manner than he did his other Dominions. And this Custom being once taken up, has <84> been ever since continued, though there are not the same Reasons there were at first for it.

These Conditions prescribed only by the Electors.2. These Conditions [articles] have been prescribed to the Emperors by the Electors [alone], without consulting the other States of Germany, though they [the latter] have sometimes complained of it, and in the last Treaty of Munster [Westphalia] it was moved, That in the next Diet[s] there might be care taken to draw up a standing form of Articles, which should be perpetual |[[—a formulation that means, in the manner of the Germans, that the matter will be postponed forever]+. And I heard [I heard, however], when I was at Ratisbone [Regensburg], that it was then under serious Debate, and that much Paper had been spent in that Service. But the Wiser part thought the Electors had no reason to fear the event of this Consultation,]|a because it was the Emperor’s Interest, [as well as theirs,]+ that the Electors should still be in a better condition than the other Princes; for they being few in number, might more easily be brought to a compliance with him, than the other States, which were more numerous, and [therefore it was reasonable on the other side, that he should rather indulge them of the two].b And those Princes of the Empire who were descended of the Electoral Families were very inclinable to it too, and [thought that] the Demands of the rest might be deluded [evaded], without much difficulty. Nor doth it agree with the Manners of Germany, to deprive any man of what [right] he has by Force and [or] Combination,c however he came by it. They added, That though what the States <85> asked was not unreasonable, viz. That they might be equally secured [considered] in the Capitular with the Electors; yet that it was not possible to pen an Instrument in such manner, but that upon the change of times and things, it would be necessary [thereafter] to change and correct it. That in the former Agreements there were many things changed, added, and altered, as the necessity of the times required, and as they found the Chinks and starting Holes [gaps] their Emperors had endeavoured to escape out at. That the Electors would willingly, at the request of the Diet [remaining Orders], insert [into the article] whatever was necessary for the preservation of [the Liberty of Germany; but then it was absurd, to think the Electors would not preferr their own proper Interest to that of all other men: Nor could they divest themselves of the common Inclinations of Mankind]a <whereby everyone loves himself most of all>.2

{Some others suspect there was another reason at this time, which brought the business of the Capitulars upon the Stage. The Emperor, who [otherwise] hated the thoughts of a Diet, was then necessitated to call one, by a Turkish War, which then threatned his Dominions; and this Affair was then set on foot, to the end he might by this means [pretext] obtain plentiful Contributions from the States of Germany. But then they offered Souldiers instead of Money; and this not answering the Designs of the Emperor’s Ministers, they thereupon clapt up a Peace with the Turks much sooner than they otherwise intended, and then were doubtful what Recess(iii) they should <86> draw up for the Diet:3 for the business of giving Succours against the Turks, which has often been the greatest part of their former Recesses or Edicts, was now wholly at an end. Yet, after all, some curious and inquisitive men [must needs know to what purpose so many men were called together from all parts of Germany, and sate so many years;]b what good came of all the Sackc they drank in the Forenoon, and the Rhenish and Burgundy [Mosel] Wine they drank after Dinner. To answer this, they put them [the legates] upon an inextricable business, that they might at their return be able, if need were, to swear they had not been wholly idle; and that repeating all their vain useless Brangles about the Capitular, and referring it over to the next Diet, [as a thing which could not now be determin’d,]+ they might make this Story serve for a Recess, or parting Edict, such as it was.}

The usefulness of the German Capitular.3. Whatever was the true cause of that Debate, it cannot be denied, but that the introducing the Custom of Comprehending the Laws the Emperor was to govern them by, in express Articles in Writing, was a thing of great good use. For this [it] tended altogether to the Reputation and Honour of the States, that seeing they would not [allow themselves to] be governed in the same manner as the Subjects of other Monarchs are, [their Liberties which they enjoyed might not seem meer Contumacy or Usurpation, but the effects of a Contract made with their Prince when they chose him to be their Emperor].a <87> They consulted hereby also the Safety of their Liberties, the Emperor being limited in such Bounds, as he ought not in any case to pass over, and being deprived of all reasonable cause of Complaint, that he [was not as Absolute as the rest of his Neighbour-Monarchs, whose Subjects profess themselves, on all occasions, to be their]b most Dutiful and Obedient Subjects. [The Germans on the other side, in the introduction of their Capitular, say, Upon these terms the Emperor has undertaken the Government of the Empire, and has yielded, by way of Compact, the said terms to the Electors, in the behalf of themselves and the other States of Germany.]c Now, if he had disliked these Conditions, he ought to [could] have refused that Dignity, or to have shewn the Electors beforehand, that there was something of Injustice or Absurdity in them, and they, without doubt, would [readily] in that case have corrected them. But then, when [once] the Emperor has accepted a Limited Power [potestas], it is utterly unreasonable [impermissible] he should endeavour to exercise a full and Regal Authority over them [the Estates]; or, [at least, it will appear much the more reasonable for them to oppose him in it];a for there are none of the more understanding Germans, who do not believe the Regal Power may be included in [contained within] certain Limits. [And I suppose, the more understanding Politicians will not deny, that there may be such a Competent Power assigned to the Head of a Confederate Body, <88> as shall be very different in Degree from that of a full and perfect Kingdom or Empire].b ,4

The extravagant Opinions of some Writers concerning the Capitular.4. But then, when one happens to read any of the {German} Writers which mention [treat of] the Capitular, he cannot but observe their abominable Flattery, or wonderful [remarkable] Ignorance in State-Affairs, and civil Prudence [doctrinae civilis]. Some of them have the Impudence to assert, That the Capitular doth not set bounds to the Emperor’s Power, but only take care that the Forces of the Empire shall not be lessened by Alienations, Mortgages, and the like. The greatest part of them do yet acknowledge, that the Imperial Power is limited by it [in certain ways], and so is not absolute, but yet it is still Supreme; or, as some of them love to speak, there is something thereby taken from the fulness [plenitudini] of his Power, but nothing from the Supremacy [summitati] that is the height of it:

As we shall in the next Chapter examin[e] this notion more accurately, it will be sufficient for the present to say [in passing], that they are deceived who think to take away the ground of this Controversie, by distinguishing between those Laws which oblige, as prescribed by a superiour Authority, and those whose Obligation ariseth from our own Wills, and are bound upon us by our Fidelity and the obligation of a Compact [agreement][, referring the Capitular to the latter class].a For all they can pretend to get by this distinction, is to prove, that the Emperor is not subject to the States, and not that he has a Soveraign Authority over them [properly speaking]: For to invest a Prince [someone] with such an Authority [supreme sovereignty], <89> it is not enough to shew, that he has no Superiour,b but he [one] must also shew, that all the rest [of his Subjects]+ are bound, without dispute, to obey all his Commands, and have no Right to appeal from him; much less will it be sufficient to shew, that he is the Highest in that State [according to his rank]. As for example: In |[our]|c Common-wealth of Venice; as if the Duke were not the Highest [in rank]; and yet no man dares ascribe the Soveraign Power to him: For, as in all Common-wealths [respublica], whether they be Aristocracies or Democracies, there may be Princes properly so called, who may be rightly stiled the Highest in their Commonwealths and yet still not be Kings. So also in all Systems of [co-ordinate States, which are Confederates each to other],d there may be some one more eminent person, to whom the particular Care of the whole [common affairs] is committed, and so he may rightly be called the Highest[, or the Head of]e that Body, though he has in truth no Soveraign Authority over the Confederates [allies], [nor can or ought to]f treat them as his Subjects.

But I think it were better here for the present to consider distinctly what part of the Soveraign Powers are intrusted to the Emperor; for if a man doth not know them, he [is utterly unqualified to judge of]a the German Government [respublica]. And here it will befit us rather to follow the Order which agrees with the Genius of that Empire, than that which [is prescribed by Politicians, as more regular and exact].b <90>

The Emperor doth not appoint or punish the Magistrates in the Empire.5. We will therefore begin with the Appointment of Magistrates, which in every Polity [civitate] is a part of the Soveraignty. For if they [sovereigns] are at last accountable for the mismanagement of their Ministers, it is fit [necessary] they should have a Right [facultas] to examin their Actions: and if they [the latter] have failed in the performance of their Duty, they must have Power to remove, or some other way to punish them. Now there is no question to be made, but the Emperor has this Power in a Soveraign Degree [undiminished], in his Hereditary Countries; |[but then, as to the rest of the Empire, it is disputed]|.c

For in the beginning the Dukes and Counts of Germany were Magistrates properly so called, as we have above shewn, and yet [now they have Supreme Authority within their Limits, under those Titles].d Nor will any of the Princes of Germany yield the Emperor the Government of the People within their Dominions, or [admit] that they [the people] are the Subjects of the Emperor, <at least in the sense that he has more right over them than they do,> though they will with great Ceremony and much Submission own themselves to be his most dutiful [humble] Subjects, and [repeatedly] testifie their great Loyalty to him. And although there may be an Hereditary [Jurisdiction in a Kingdom which shall still be a meer Magistracy];e yet then the Supreme Authority must [always] have reserved a Soveraign Power [a right] over that person that is invested with it.

|[We shall give some examples for the illustrating this]|.a The Emperor may give to one the Title of a Prince or Count of the Sacred Roman Empire; but then he can give him no Right to vote in <91> the Diet, without the Consent of the rest of the States, (Conf. Artic. 44. Capitul. Leopoldinae).5 And seeing he [someone] is vainly puffed up with the Title of a Prince of the Empire, who has no Dominions to sustain the Dignity and Splendor of his Title, that he [the Emperor] may never be able to enrich these Upstarts [new princes], care is taken by the Thirtieth Article of the same Capitular, by which all vacant Fees [are to be united to]b the Empire, Art. 29. For this there is a double reason, first, That all the vacant Fees should not be swallowed up by the House of Austria, [nor given to men obnoxious to that Family];c and, secondly, That in time Germany may be able to give something to its Emperor, besides an empty Title, by which the Charges of that high Station may be born[e], that so in their Elections they may not be tied to chuse only persons of very great Estates[, but may be able, in time, to assign their Prince a Patrimony equal to the Title, and set him in a condition which is proportionable to the rest of the Princes of Germany, which if it had been to have been done at once, and out of their proper Dominions, would have been too much for them to have parted with].d

Perhaps the Emperor might be allowed to admit [amongst them]a a foreign Prince, who is not subject to any of them [other superior]. But then, [if any of them could be contented to impair so much his condition],b what Place could he hope for in the Diet? He would be ashamed to sit on the lowest Bench, and except he were a <92> King, the ancient Princes of Germany would never give place to him.

It is probable, however, there would be less difficulty in receiving foreign Cities into the number of the free [Imperial] Cities of Germany, 1. Because they are not so ambitious of Precedence as Princes are, and [2.] |[Buckhorn, and such other [similarly splendid] Cities, would perhaps readily]|c yield them their Places for the Encrease of the German Empire: But then it is not likely that any such Free Cities will join with us, till one or two of our Neighbour-States are dissolved. And the Emperor cannot raise any of the [German] Cities that are [now] subject to any of the Princes [Estates], to the Priviledges and Dignity of a free Imperial City.

The Emperor cannot deprive any of the Princes of their Dignity.6. Much less is it in the Power of the Emperor alone to take away or deprive any Prince of his Dignity, or expel any of the States out of his Dominions, though they are guilty of a great Crime against the Empire [rempublicam], but [even] in the most notorious Fact [case] he must obtain the Consent of the Electors, before he can interdict the meanest of them [the offender], Capitul. Leopold. Artic. 28. They thought fit to get this Bar, lest if any of the Princes had by chance offended the Emperor in his private personal Concerns, he should presently persecute him as an Enemy to the Empire. Whilst this Capitular was drawing [being drawn] up at Frankford, some of the States [prudently] desired there might be a Clause [expressly] added to this 28th. Article, That the execution of all Judgments given against any [proscribed] Prince of the Empire, [ought by Law to be committed to]athe rest of <93> the Members of the same Circle to which his Dominions belonged; because if the Emperor himself undertook the execution of the Sentence, he might perhaps seize the Estates [of those proscribed] under pretence of the Charges [expenses] the Execution put him to. [And perhaps it might have become attractive to render such harsh judgments, if they worked to the judge’s advantage.]b

On the other side, |[the Emperor never concerns himself how the Princes treat their own Subjects, and whether they [flea or fleece]c their Flock is all one to him]|,d because one of the principal things he promiseth in his Oath, is, That he will save to every of the States their Rights and Priviledges, and disturb none of them in the exercise thereof. And this is one of those Rights in which the Princes and States of Germany take the greatest Pride; That every one of them can govern their own proper Subjects, according to his own will, or to the Compacts he has made with them. See the 3, 7, 8, & 9. Artic. Capitul. Leopold.

Besides, there are [only] few instances in which the Emperor can directly and immediately command the Subjects of [another Prince];e |[as for instance: To]|f give Testimony or answer an Action in a Suit depending; [and he is without any remedy from the Law in all those Citations, which he sends out in his own Name (if the Party will not appear.)]g Yet he may reward or priviledge any of the Subjects of another State [the Estates], [but only] so he doth not diminish the Authority or Rights of their proper Prince [the Estates]. But then this Imperial Priviledge seldom goes further than the giving them Titles of Honour. <94>

The Emperor has no Revenues from the Empire.7. Let us now see what Power the Emperor has over the [Estates of the Princes],a as to the Contributions that are to be raised for the bearing the Charges of the Government [respublica] in Times of Peace or War.

As far as I can understand, all the publick Revenues [outside the Emperor’s domains] (a very few excepted) belong to the [respective Princes and Free Towns],b only the Emperor promiseth, (Articul. 21, 22, & 23. Capit. Leopold.) That he would prohibit overrating [excessively raising] the Customs, lest the Princes should thereby ruin the Trade of Germany: [Nor is he allowed to levy new taxes for himself in the domains of the Estates.]c And if any thing of this nature comes into the Emperor’s Treasury [from the Empire], it is not worth the mentioning, [and for the most part]d belongs to the Officers of the Chancery, who reap the greatest profit [of all others,]+ from the renewing the Fees [(or Estates)]+ in the Empire. See Artic. 17. Capit. Leopold. [He can lay no new Impositions on any Merchandise, imported or exported within the Dominions of any of the States; and it was never heard in Germany, that the Emperor should <arbitrarily> lay any Tax upon any that lives out of his Hereditary Countries]:e Neither are the States obliged to any standing Charge towards the Necessities of the Government, except what is agreed for the upholding the Chamber of Spire, and even that very small Charge is very ill [grudgingly] paid by many of them.

In ancient times, when the Emperor went to Rome to demand [petendam] the Imperial Crown, the States of Germany were bound to arm and maintain Four thousand Horse and Twenty <95> Thousand Foot, to attend upon him during his Journey. But as these [Roman] Expeditions have a long time been omitted, so the proportions that were then fixed [for that purpose] serve now only for the [immediate] approportioning the Rates of the several Princes in all extraordinary Charges granted in the Diet: Yet there are many Complaints made against this old Proportion, because the Estates of some are, in length of time, sunk in their value, and others are as much raised above what they were.

[A Turkish War is ever a vast charge to Germany, and they never more willingly part with their Money than on that occasion; and yet even here the Emperor doth not proceed upon his own Authority].a All is granted and transacted in the Diet [by the Princes or their Deputies],b and the more easily commonly, because the [some] Princes are great Gainers by it, for they rarely pay to the Emperor’s Treasury all they levy.

Nor is he the Arbitrator of Peace and War.8. The Arbitriment of Peace and War is now also included in very narrow Bounds [legibus], whilst Money, the Sinew of War, is thus put out of the Emperor’s Power. It is true, the Austrian [hereditary] Dominions will maintain a potent Army, but then, if they alone bear the charge of it, they will apparently [obviously] be very much exhausted.

An Addition.//It is to be considered, our Author wrote before the recovery of Hungary, Sclavonia, Serbia, and Bosnia, out of the hands of the Turks, which are much larger than all the old Hereditary Provinces, and upon a Peace of Twenty years, will be able to raise <96> and maintain a much greater Army than the Hereditary Provinces could when they lay exposed to the Ravage and Incursions of the Turks, as now they will not; so that the Emperor is now three times more considerable than he was before the last War, in the extent of his Dominions, the security of his Subjects, and the acquiring of new Countries, to bear the Charges of defending themselves and the old too.a

Except therefore the States consent to the War, and promise their Assistance towards the Charges of it, the Emperor cannot promise himself any thing of help from them. As it is not their manner to be [entirely] wanting to the Emperor whenever he is invaded by another, so it is certain, if he should [spontaneously] begin a War upon any of his Neighbours, none of them would concurr with him in it, except a few of them, whose Interest unites them to the House of Austria. For it is, of the two, rather their Interest to hinder him from warring upon others, and that not only because all Germany may thereby be involved in Troubles, but also because the very Victories of the Emperor are no welcome News to the States, [as raising his Power (which perhaps is already too great) to= the endangering of their Liberty].b (Vide Art. 13, 14, & 16, Capit. Leopold.)

Nor of Leagues and Alliances.The Tenth of these Articles shews, how the Emperor’s Power is bounded as to Leagues and Alliances. |[A man here will not be able to forbear wondring why the Emperor is not permitted to begin a War against any Neighbour upon <97> any pretence whatsoever, or to enter into any Alliance with a Foreigner, without at least the Consent of the Electors[. And yet]c we are lately told, many [several] of the Electoral Princes had had a meeting [banded together], and drawing over to them a parcel [pack] of Thievish Souldiers [robbers], have made an Inroad upon the Elector Palatine’s Dominions, under pretence of forcing from him some Rights which they are not well pleased he should any longer enjoy: And when they entred upon this action, they thought it was sufficient for them to give the Emperor a very superficial and insolent account of what they intended to do.6 There was [likewise] another Bishopd of that Nation, [not far from the Hollanders, (Munster) took up Arms, and invaded that State, which War may involve a great part of Germany].a And all these bold Attempts of the Princes were entred upon whilst the Diet was sitting, and yet it took not the least notice of them. For it is now become a Custom for some of the Princes to League with the Swedes or French, both which Nations have for many years been the Enemies [or rivals] of the House of Austria]|.b

Nor is he the Governour of the Religion of Germany.9. Let us see next what Power the Emperor has in the Affairs of Religion. |[[Because the new Politicians will needs have Temporal Princes, according to their new Divinity, intrusted in things of this nature];c whereas the Roman Catholicks constantly believe and profess, That it would be very prejudicial [damaging] to the Grandeur [position] and Wealth of <98> the Church [priests], to have any but [the Clergy intermeddle with the disposing of the Church-Preferments],d and therefore would [(very wisely)]+ have the Laity content themselves with the Glory of enriching and defending the Church [clergy|.e

]]

When therefore there were no other Rites received in Germany, but those of the Church of Rome, the few Disciples of John Huss in Bohemia excepted, and the Jews, who [are every where tolerated.]aAn account of Martin Luther and the Reformation.Martin Luther[, beyond all men’s expectations, sorely weakened the Papal Authority in that Nation],b and taking the advantage of a small Brangle, of no great moment at first, drew off a considerable part of the Empire [Germany] {from their Obedience to the See of Rome}. |[If I may be allowed to speak the truth, this inconsiderable Spark was blown up to this dreadful Fire, by]|c the folly of them who at first opposed Luther, and the inconsiderate rashness and haste of Leo X. For some contemptible [miselli] Monks [were] contending one with another, one Party of which was very zealous for Religion, and the other Party no less concern’d for their Profit{; and at first both of them had the Papal Power in great esteem, as Sacred}. Now it was certainly here the part of a prudent Judge, to shew himself equal and indifferent to both the contending Parties, or presently to have silenced both of them, lest his Commodities [(his Indulgences)]+ should become cheap, and suspected by the People: At least, he ought not so manifestly to have espoused the [Quarrel of his <99> Factors],d for fear this highest Priest [shepherd] might be suspected to be more fond of getting Money, than preserving the Souls of those under his care; or lastly, to prevent being suspected to be better pleased with [the price of Mens Sins (paid to him) than with the most Innocent and Holy Life].e The more indevout sort of men were not to be [should not have been] tempted neither by this Affair, to suspect, that the Priests were very like Physicians and Chirurgeons, who reap too much Benefit from the Diseases and Wounds of Men, to be heartily sorry for them:

So that [But] if it was foolish and sacrilegious to give Sentence against the Indulgences, to the damage of the Church, it had been prudent to sweeten a man of too warm a temper with Presents, Preferments, and Promises, that he might not light the Laity into the way of shaking off the Church’s [priests’] Yoke; and when so many have by Ambition and Gifts aspired to the highest Dignities in the Church of Rome, I think, for my share, it would have been worth the while to have wrapped this Monk in Purple,a to prevent his doing her so great a mischief: For when Martin Luther saw he could have no Justice done him [at the Pope’s Tribunal],b he began to court the Grace and good Opinion of the Laity, and soon after, he positively refused to submit to the Judgment of the Pope, because he [the latter] had [openly] made the Quarrel his own, by entring into it: And that he might not want a Patron, he began to teach, That the Care of the Church belonged <100> to Secular Princes, and those who had the like Authority. And they again reflecting, That the great Revenues their Ancestors had given to pious uses, were spent in [nourishing the] Sloth and Luxury [of the clergy], [quickly embraced the opportunity of turning these lazy fat Cattel to Grass].c

What is said of the design of enriching themselves by the Revenues of the Church, is to be understood as spoken in the Person and Name of a Roman Catholick; for all the Protestant Princes have ever denied they had any such design, and it is not at all probable at first they could have any such.This [teaching] was greedily followed by many, partly because [most of] what Luther said seemed true, and partly because they found they could considerably improve their Revenues [therefrom]. There was then a [spreading] Rumour also, that the Italians imposed upon [were taking advantage of] the old German Honesty and Simplicity, and that they spent the Money they had torn from them on the account of their Sins, in Gaming, Luxury, and filling the insatiable Avarice of [the Pope’s Officers and Creatures].d They called to mind a Saying of Pope Martin V.7 which in truth was very worthy of a Spiritual Pastor, viz. That he could wish himself [vowed to become] a Stork, provided the Germans were turned into Frogs. Hereupon they began to bemoan themselves to one another, and say, We who of old so valiantly repell’d the victorious Arms of the Romans, are by an unwarlike sort of men, under pretence of Religion, reduced almost to a necessity of eating Hay [with our Beasts]+. I cannot tell how much the [restoring Learning in this part of the World might contribute to this Revolution, which was thereupon received with]a great Applause. However, <101> we may well and safely affirm, That Men of Learning are not easily perswaded to believe what is (or seems) contrary to Reason.

Many of the German Princes deserted the See of Rome.10. The effect of this Controversie was, that a great part of the ancient Rites, and all those Doctrines which seem’d superfluous to these new Teachers, were laid aside by a considerable part of the Germans; and at the same time many of the Clergy were deprived of their Church-Lands. Thereupon many Suits were commenc’d in the Chamber of Spire,b by the Clergy, against those that had deprived them of their Possessions; and [that Court was also very willing to have restored all to the outed Clergy, but then]c the Protestants {(as they are call’d)} refused in this matter to acknowledge the Jurisdiction of that Court: “For though (said they) the Laws in all Cases [above all] command, that they which have been dispossess’d, should be restored to what they once had; yet, in this Case that was now depending, it was fit and reasonable, that a lawful general Council, or some other publick Convention, [(that is a National Council of Germany)]+ should first consider and determin, whether the outed Clergy did profess and teach the true Religion. For if this was not first well proved, (as they [themselves] believed it could not) it was [in vain, and to no good purpose, for them]a to expect the enjoyment of those Revenues which had been given by their Ancestors, for the maintenance of <102> the true Worship of God.”

Now, because they were quickly sensible, that Reasons and Protestations alone would not secure them, the greatest part of these Protestant States and Princes joined in a League at Smalcald, to repell any Force or Violence which might be offered to any of them, because they had embraced the Reformed Religion: At length it came to a War, which proved very unfortunate to the Protestants, and the Elector of Saxony, and the Landtgrave of Hess, [the two principal persons of their Party,]+ were both taken Prisoners, and their Religion seem’d to be in a desperate and hopeless condition; but then Maurice the [next]+ Duke of Saxony restored [it to its former Power, by his Arms, and the R. Catholicks were forced to come to a Treaty at Passaw, for the securing all Parties]b {; the terms of which may easily be found in any of the German Historians of that time}.8

The Decree of Ausburg for the Liberty of Religion.After this, in the Diet of Ausburg, in the year 1555, the Protestants obtained the securing their Religion by a Law passed there in favour of it, [by which Law they had sufficient Security given them, that they should live in Peace, and]c that neither of the Parties should hurt or invade the other on the account of their different Religions, nor compel [any man by force to abjure that Religion which he professed].d If any Church-Lands had been seized by any of the Secular Princes [Orders], which did not belong to any other immediate [State or Prince of Germany],a it should be left to the <103> present Possessor, against whom no [Suit should be commenced in]b the Chamber of Spire [on that account], if the Clergy were not in possession of the same at the time of the Treaty of Passaw, or after it: That the Ecclesiastical Jurisdiction should not [no longer] be exercised against those who professed the Protestant Religion [Augustanae Confessionis]; and that they should manage their Religious Affairs as they thought fit: That no Prince should allure the Subjects of another Prince to his Religion, nor undertake the Defence of them, on the pretence of Religion, against their own Prince. But then those Subjects of either side, that were not pleased with the Religion or Ceremonies of his own Prince, might sell their Estates, and go where they pleased. And lastly, if this Difference of Religion cannot be composed by fair and lawful [licita] means, this Peace shall nevertheless be perpetual.

The Liberty of the Clergy more fiercely disputed.11. In the mean time there was a sharp Contest [dispute], Whether the Catholick Clergy should have liberty to embrace the Protestant Religion, and also possess [retain] notwithstanding their Dignities and Church Revenues [holdings]; which was urged with the greatest vehemence by the Protestants, who said, That the contrary Practice was a [great] reproach to their Religion, if [they should consent, that]+ those that entred into it should be deprived of their Honours and Estates: That the way that leads to the Purer Religion [doctrine] was by this shut against many: That they had no intention to turn the Church-Preferments [holdings] to Secular uses, or to take <104> away the Freedom of Elections from the [cathedral] Chapters. But then, because it was [quite] apparent, that this exposed the Roman Catholick Religion, in Germany, to the utmost danger, the Catholick States opposed it with equal obstinacy, and Ferdinand the Emperor favouring that Party, they got this Clause added to the Law; If any Clergyman becomes a Protestant, he shall forfeit his Church Preferments [beneficia], but without any loss or diminution of his Honour [esteem].9 And although, at that time and [often] after, especially in the Case of the Archbishop of Cologne, who became a Protestant,10 the Protestants complained very much of this Clause, and protested against [maintained that they were not bound by] it[, yet they could not get it repealed]+. <Yet it was confirmed as such in the Treaty of Westphalia.>11

The Differences in Religion cause great disquiet in Germany.12. But this Peace [of Augsburg] was not able to take away all the Seeds of Discord, which sprung from this Diversity of Religion. For they that embraced the Protestant Religion, divided it into Parties and Factions, because the greatest part of them stook [stuck] simply to the Words of the first Augustane Confession, whilst some others thought some Doctrines ought to be more nicely [exactly] exprest. And although wise men thought this was not a Controversie that was worth the entring into a Civil War for, yet their minds on both sides were very much exasperated by the Intemperance of the Preachers, and the Frauds [intrigues] of the Roman Catholicks, who expected to make great use of these Dissentions amongst their Enemies, as a means to overcome them in the end. And whereas [since] all those that profess’d neither the Roman Catholick <105> nor the Augustane Confession, were excluded from the benefit of the aforesaid Peace, the Roman Catholicks hereupon craftily endeavoured to perswade those who simply stuck to the Augustane Confession, to disown all those that had refined upon it, as not at all belonging to their Party. Though the strict Protestants often declared publickly, that they would not disown those that differed from them in some points that were of less moment, but that they also ought to enjoy the Benefit of the Peace; yet the over-great Zeal of the Priests divided them so far, that they began to separate [each from the other, and not to consult so frequently together as they had done before]:a Nay, after this, when one of the Parties was oppressed by the Popish Party [Catholics], the other would unconcernedly [quietly] look on whilst they perished or [even] lend Assistance to their Enemies.

Afterwards other occasions of Discontent arose, and last of all, a Fire was kindled in Bohemia, which in a short time involved all Germany in a War: Here Fortune at first smiled upon the Emperor, and prospered his Affairs beyond his hopes, so that in a short time his Armies subdued and brought under the greatest part of Germany; and [finally] in the year 1629, he presumed to publish an Edict, That [all the Clergy should be put in possession of all the Church-Revenues, which had been taken from them by the |[Laity]|,b since the Treaty of Passaw].c The secret Design of this Edict was, to bespeak [procure] the Assistance <106> of the Clergy and [other] Catholick States, and to perswade them, that all his Designs tended to the resettling [reestablishing] that Religion, and not to the oppressing the Liberties and Rights of the German States and Princes: But then, if they had either [sate still, or helped him to subdue the Protestants; nay, if they had not hindered the reduction of them, it would have been very easie for the Emperor (thus flush’d with Victory, and arm’d with Power) to have model’d them at his pleasure].a

The Peace of Religion resettled in Germ[any].How this Project came to fail, is too well known to be represented here: And at last, in the Treaty of Osnaburg (or Osnabruck) in Westphalia, in the year 1648, by the V. Article, there was a large Provision made for the Security and Peace of Religion, the Treaty of Passaw, and the Recess of Au[g]sburg, being both confirmed, and an express Declaration inserted, that it extended equally to the Lutherans, and to the |[Calvinists]|,b as they call them now. It was added also, That all Changes that had been made since the First of January, 1624 in [the State, under pretence of favouring the Church],c should be put [back] in the same state [condition] they were then; and that all those Revenues [sacred holdings] which were then possess’d by Roman Catholicks, but were since taken from them by the Protestants, should be restored back again to them; and the like should be done by the Roman Catholicks, to the Protestants[, that all the immediate States]d which the Protestants possess’d at that time; should be their own for ever.

The Right of changing Re-<107>ligion, which before seem’d to be left free to all the States, was for the future so restrained, that the Subjects of the Catholick Princes, who were of the Augustane Confession, and in the year 1624, had the Free Exercise of their Religion, were still to retain it. And they that had been in the mean time disturbed, were to be [should have it] restored. Those who had not enjoyed their Liberty in the said year, should have Liberty of Conscience, but should only [exercise their Religion in their own private Families, or the Neighbour places]:e But if their Lords should command them to be gone [emigrate], they should have liberty to sell their Estates, or manage them by their Deputies [Ministros]: And the Emperor himself, in some things, indulged his own Protestant Subjects, for the sakes of the [Protestant] Princes. It was also agreed, that if any Prince should hereafter think fit to change his Religion, it should be no prejudice to him;a and that he might have Priests in his Court of his own Opinion [religion]. But then, that he should not force his Subjects to his Religion, but should leave that he found in [their] possession, but so, that it might [also] be lawful for his Subjects, if they would [voluntarily] take up the Religion professed by their Prince.

It is also to be noted here, that this Liberty of Religion was settled by way of Compact or Agreement made between Equals, and [that] the Emperor himself is [joined with] one of the Parties; so that neither he nor any other of the Catholick States, though they should happen to be the more nume-<108>rous Party, ought to alter any thing of it:

And it is also manifest, that the Condition of the Protestant Princes is better [here] than that of the Roman Catholicks, because the latter are subject to the Pope; whereas the former govern their Affairs of Religion in their own Right, and as they think fit. {Now [That is], if any share of the Government of Religion [cura sacrorum] belongs, by the Laws [according to the Doctrines] of Christian Religion, to the Civil Magistrate [at all]:12 It is plain, [at least, that] the Authority of the Churchmen will thereby be [was thereby] reduced into a very narrow compass.} Add. Artic. 1. & 19. Capit. Leopold.

The Legislative Power not in the Emperor.13. We proceed now to the Legislative Power. That it may appear to whom this belongs, we must consider by what Laws Germany is governed, and how they were introduced. Here the learned Hermannus Conringius has led the way in his learned Book, De Origine Juris Germanici, whom I shall very near wholly follow.13

This [celebrated] Author takes great pains to confute the commonly-received Opinion, That the Roman or Civil Law was in the year 1130, by the Command of Lotharius the Saxon, [then Emperor of Germany,]+ received both in the Schools and Courts of Justice: Whereas he shews, that to the XIII. Century, the Courts of Germany did not so much proceed upon any written Laws, as upon ancient received Customs, and upon Equity and good Conscience; and the Judges for popular [civil] actions were not chosen on the account of any eminent Learning, but rather [for being] ancient men, <109> well esteemed for Prudence, Piety, and Justice, the far greatest part of the People [laity] being then not able to write or read. In the XIII. Century theThe Canon Law first introduced. Canon Law, by slow degrees, began to creep into Germany, and not only that began to be studied [derived from it], which concerns Church-Affairs, but the Processes of Civil Affairs were [also] regulated or formed by it, though many stuck stifly to their own ancient Customs. About the same time theseThe ancient German Customs after this set down in Writing.Old Customs were also put in Writing, amongst which the Laws of Lubeck are most esteemed, and those of Magdeburg, which in the German Tongue is call’d Weichbild; the Mirror of the Saxon and Schwaben Law,a and the Feudale Saxonicum & Suevicum; and these were very near all the Laws used in Germany, in the XIII. and XIV. Centuries.

The Civil Law introduced in the XV. Century.In the XV. Century, the Civil or Roman Law, and with it the Jus Feudale Longobardicum, began also by degrees to creep in [come into use], the Skilful in these Laws being often advanced to the Honour of being Counsellors to the Princes, who [they] took all opportunities to recommend their own Profession to the good Opinions of Men: And it began thereupon to be taught in all the Universities of Germany, and that after |[the manner of Italy, which gave them the example]|.b After this, when men that had studied it, were call’d to the Bar, it began by little and little to be received into the Courts [forum]: And in the year 1495, Maximilian I. appointed [ordained] the Civil Law to be admitted and used in the Chamber of Spire, but saving <110> all the Ancient [received] Customs, and the Local Statutes of all places. So that the Law now used in Germany is aThat at present in use is a mixture of Canon and Civil Laws, and the old Customs.Mixture of Civil [Roman] Law, Canon Law, Ancient Customs, and the Statutes of the several Provinces and Cities, which are very contrary one to the other. And in all Courts this is observed, That if there be any Provincial Statute or municipal Law extant, [concerning the Case depending, that takes Place in the first place];a but if there be none, then they have recourse to the Roman or Civil Law, as far as it is commonly received.

Particular Laws made by the several States.The States of Germany [the Empire] in the mean time are allowed to make Laws concerning Civil Causes, in their respective Provinces [domains], which may [even] differ [(if they think fit)]+ from the Common and Usual Law; [and that they shall]b enact Statutes for their own use, without ever consulting the Emperor, so [long as] they contain nothing in them prejudicial to the [other States of Germany].c [And although]d many of them have desired the Emperor to confirm their Provincial Statutes<, to lend them greater authority, or to give proof of their respect toward him>. And they can also make particular Laws concerning Criminal Cases. Nor is the Caroline Constitution14 in all points every where observed. The States have also a Power to pardon Offenders: But if any thing [new statute] is to be introduced that shall bind all, it cannot be settled but in aThe general Laws in the Diet. Diet, and by the Consent of all; and when it is so passed, it obligeth the Emperor as much as any of the other States. Vide Artic. 2. Capit. Leopold. <111>

The forms of the German Jurisdiction in several Ages.14. The Jurisdiction [judicial process] of Germany has been very differently managed in different times, as is accurately set forth by Conringius in his Tract De Germanici Imperii Judiciis, from whom I shall transcribe the principal Heads, to save my own labour.15

And I will begin with the Times of Charles the Great. When any of the Royal Family had any Controversie, either one with another, or with any other [outsider], it was determined in the Council of the Nobility and People, as were also those Cases of the Nobility, that were of great concernment [importance]. The smaller Controversies the Nobility had, were determin’d by the King, or those he sent [emissaries], (for so they were then called, who are now call’d Commissioners, Visitors, or [extraordinary] Delegates). For the ending the Contests of others, there were settled in the [individual] Hundredsa and Districts certain Judges called Graves [graviones, counts], who had to assist them, and sit with them, others called Scabins [or assessors],b chosen out of the Nobility, or the better sort of the People [honesta plebe], and these heard and de termined all Civil and Criminal Cases. The Graves, by reason of the greatness of their Hundreds, had certain Deputies in every Village, or, as they call them Scultesio’s, (like our constables)c from whom yet there lay an Appeal to the Grave.

The Priests also punished the Vicious Lives of Christian Men [Christians] by Canonical Censures. The Bishops exercised a Jurisdiction over the Clergy and the Monks: And the Bishop was also accountable to his Metropolitan, or a Synod [called <112> by him]+, though afterward Appeals to the Pope [Roman Pontiff] began to be made, on the account of the Authority of that See<, at the beginning, it seems, usually by mutual agreement [of the contending parties]>. Yea, the Cases of many Laymen were promiscuously [generally] referred to the Bishops, [upon an opinion of their]a Sanctity and Integrity:

But then the Judgment of [about] the Church-Revenues was not in the Clergy, but in the Advocates or Vicedames [vicedominos], which were particularly appointed by the Kings. And so the persons of the Clergy were subject to the Judgment of the Clergy, and their Revenues [goods] were subject to the Advocates Judgments, who were Laymen. From these fixed settled Judges they appealed to the King’s Messengers, who at certain times travelled over the Provinces [(like our itinerant Judges of Assize)]+ and from them to the King’s Palace,b in which Appeals the King himself, or the Count Palatine, gave Judgment; which last was also appointed to determine the Causes which arose in the Court. But then they hardly admitted an Appeal, but where the Grave or Messengers refused to administer Justice:

And all Cases were determined by a short and very plain Process, and in a few Sessions or Hearings. So that in all this [judicial] form there was nothing wanting [to criticize], but an Appeal for the Clergy to the Pope, who {though an holy person,} was [then considered as one out]+ of the Bounds of Germany [(and so not to be taken notice of)]+. <113>

The old forms changed in after times.15. In all these things, in process and length of time, almost every thing was changed. After the Golden Bull, the Electors [took cognizance of]c all the Royal Cases. And the Pope assumed to himself so great Power [on that account, that he made no scruple to excommunicate the Emperors, and declare, that their Subjects were free from the Obligations of their Allegiance to them; and he boldly said,]d the Emperor was his Vassal, and the Empire a Fee which belonged to his See.

As to the Princes’ Suits or Cases, [this was ever observed from the very beginning of the French Monarchy],a that they were never determin’d by the Judgment of the King alone, but were alwaies decided in a Convention of the Nobility, upon a simple and short Process, according to Equity and good Conscience [aequo et bono]. And even [in the first Ages of the German Empire, if any of]b the Emperors assumed a Power singly [by themselves] to judge of the |[Fees]|c belonging to any of the Princes [Estates], the more couragious of them alwaies protested against it: Yea, if all the [other] Testimonies we have were lost, the very form of the whole Empire, [or its Constitution,]+ does sufficiently prove, that things of that consequence which these Suits are of, ought not [(by it)]+ to be left to the single Judgment of the Emperor<, or, at least, that the Electors must first be consulted>: And therefore they are notoriously [manifestly] guilty of palpable Flattery, who [pretend, that this Judgment of the Cases of the Princes of the Empire, which the Germans call Das Fürstenrecht, is a meer <114> Pretence].d

But [then, it was long after these times that these inferiour Princes took upon them to judge arbitrarily of the Cases of their own Vassals, which was done only by some Families, and imitated by the Free Imperial Cities, as to their Subjects. The Germans call these Counts in their Language Austrega’s, and it is probable they began about the times of Frederick]e and the great Interregnum. [Those]f that trusted more to their Power or Force than to the Justice of their Cause, would commit the Trial of it to the Sword. It is also a late Practice, which has been taken up by [some of our later]+ Emperors and Princes, to referr the Cases depending to their Ministers [and profess’d Lawyers],a rather than to give themselves the trouble of hearing them. But then this became necessary, when instead of a few plain Country [ancestral] Customs, we had [there were] introduced the Intricate, Papal [Canon], and Civil [Roman] Laws, which it would have been the utmost punishment to have put the Princes to the trouble of learning.

The Innovations brought in by the Churchmen.16. As to the Churchmen, they innovated in these particulars: By degrees they drew all the Personal Cases of the Bishops to the Pope’s Tribunal, utterly destroying [neglecta] thereby all the Authority of Metropolitans and Synods; and they took from the Laity all Right of judging in any Case [a Clergy-man].b This is by the Protestants returned to the ancient method; but by the Roman Catholicks still retained, though Charles V, and some other Princes since, have to the great <115> vexation of the Pope, [and without consulting him,] ordered some things pertaining to Religion and [punished some Clergy-men for great Offences too].c

In the times also of Frederick II, and those that followed, [the Bishops and Clergy]d assumed to themselves the free Administration or Management of their own Church-estates, and shook off their Advocates or Vicedams;e yet still the Ecclesiastical States [Estates] are subject to the Empire, by reason of their Fees and other Regalia’s, of which they may be deprived, if they act any thing insolently against [seriously violate] the Publick Peace and the Laws of the Empire.

The Monks, as to their Persons, were, in the times of Charles the Great, subject to the Jurisdiction of the Bishops, from whom some ancient Monasteries were [later] exempted, and were put immediately under the Pope. The new Orders which have arisen since the XIII. Century,16 are [only subject to their]a Provincials and Generals, and only acknowledge the Pope’s Jurisdiction as their Supreme Ordinary [judge]<, apparently to restrict the authority of the bishops>. The Administration of the Lands of the Abbies were at first committed [mostly] to Advocates, from which dependance, in length of time, some Houses were exempted, but the greatest part have still remained in the same state they were at first; and some few of them are free from all publick Taxes and Charges.

Secular Cases, how managed.17. The Secular Cases of the meaner People [plebeiorum] were heard [already] in the times of Charles the Great, either in the Secular Courts, or by the Bishop in his Consistory; which later <116> way has since been much extended beyond what it was at first. These [plebeians] were first (as to the Secular Courts) to make their Complaints to the Scabins, which in ancient times were appointed in all the Hundreds (Pagi) and Villages; from him [scabin] they might appeal to the Graves or Comites, (Earls or Sheriffs) whose Jurisdiction was after[wards] usurped by many Dukes and Bishops. From the Counts or Graves they had an Appeal to the Itinerary Messengers, (or Judges) sent into the Provinces by the King, and from them to the King himself, who in his Court made a final Determination of all Cases:

But in the XV. Century, when Appeals became very frequent, by reason of [the bringing in the tedious Forms, and the Iniquity of the Rabble];b for the more commodious determining [of] these, it was resolved, to erect a [certain]c fixed Tribunal or Court, which was at last settled atThe Chamber of Spire erected for Appeals. Spire [Speyer]. The reason of this was not because the Imperial Court was too ambulatory or unsettled,d but because the vast quantity of these Cases might most conveniently be determined in a place set apart for that end.

Since removed to Wetzlar.//The French, in the year 1688, having seized Spire, the Diet, in the year 1689, agreed this Court should be settled, for the future, at Westlar (Wetzlar) a City of Hassia [Hessen], seven German Miles from Frankford, to the North, and about fifteen from Cologne to the S.E. which being approved by the Emperor, Commissioners are appointed to adjust all things for the opening this Court there; <117> and it is very probable it will never be returned back to Spire, that City being too much exposed to the Insults of the French, who, when they please, can seize the Records of this Court, to the inestimable damage of the Empire. And besides, the French had before burnt and destroyed the whole Town of Spire, not leaving any thing standing in it that Fire and Gunpowder could fetch down.

The present form of Process.18. The modern way of Trials now received in Germany, is thus: When any private person commenceth a Suit against another of the same quality [cum privato], he in the first instance goes to the Praetor [(Scabin)]a of the City or Village in which he lives, except the Defendant be [some way priviledged above the Scabin].b [There]c is in all the Principalities which I have been acquainted with, some superiour Court, which is common to the whole Province, {which they call the Palace or Provincial Court,} and to this Superiour Court there lies an Appeal from the Scabin: But then the most part of the Free Cities have only one Court, from which there is no Appeal.

In Civil Cases there is no Appeal from the Electors, Emperor and King of Sweden.The Chamber of Spire, and the Emperor’s Palace-Court, are common to the whole Empire. But then some of the Princes [Estates] have a Priviledge [right] which restrains their Subjects from appealing to either of these Courts, [and] of this number are the Electors: Yet there are some, who question whether this Priviledge belongs to the Ecclesiastical Electors, [though] only because they do not exercise it. <118>

The House of Austria, and the King of Sweden, enjoy the same Exemption[, the latter] for all his German Territories. (Westphaliae Art. cap. 10. sect. 12.) This last Prince has erected a Court at Wismar, for the determining all those Appeals which before belonged <to the Princes of those provinces, and otherwise> to the Chambers of Spire and Vienna. (Add. Capitul. Leopold. Artic. 28, & 27.) But then all the Princes [Estates] of the Empire are equal in this, [so far as I know,] that there [lies no Appeal],a except the thing in dispute exceed such a [a certain] value, which yet in some places is more, and in others less. InIn Criminal Cases there lies no Appeal. Criminal Cases, [however,] not only the Princes [Estates] of the Empire, but many [some] of the Burroughs or Corporate Towns, and many of the Nobility, exercise a Soveraign Jurisdiction without any Appeal.

How the Controversies of the States or Princes are determined.19. But then, if there be any Controversie between the States or Princes, the greatest part of them, in the first instance, have their resort to the Austraega’s or Arbitrators:17 Of these some are [appointed in a peculiar Convention]b of the States, and others depend upon the common disposition of the [public] Laws. The first Institution [origin] of this Judicature is very obscure; but their Opinion seems most probable, who date its Rise about the times of Frederick II, and ascribe it to that long Interregnum[, as already mentioned]. //This Interregnum began in the year 1198, when Philip Brother of Henry VI. was chosen by one Faction, and Otho Duke of Saxony Son of Henry the Lyon, and Maud of England by another; from henceforth there was nothing but War and Misery; till in the year 1212, <119> Frederick II. Son of Henry VI. was, after many other, chosen, who yet could not obtain the peaceable Possession till the year 1219. so that it lasted about 21 years. But to return. It is certain, Maximilian the First was not the Author of this Court, [as some wish him to be,] though he gave it a new form, which is extant in the Ordination of the Chamber in 1495, made at Worms. Of the various forms of Austraega’s there mention’d, there are [only]c two now in use; as, 1. The Defendant names Three Princes [or other Estates]a of the Empire, out of which the Plaintiff chuseth one: Or, 2. They obtain by consent of the Emperor one or more Commissioners: But then there are some Cases which ought not to be brought before the Austraga, but immediately before the Chambers of Spire or Vienna; which [cases] may be found [in many very common Books].b

Now, there are these Inconveniences alwaies attending [the Judgments given by]+ the Austraega’s; 1. That there lies an Appeal to the Chambers [of Speyer and Vienna], so that very few Controversies are [finally] determined by them. 2. That great Sums of Money [are spent in treating and sweetening the Emperor’s Commissioners].c 3. [There is a Sequestration of a years continuance of the Profits of the thing in dispute, which time is allowed to the Austraga’s, to give in their Award; because it is thought an indecent thing to determine a Suit of moment in less time in Germany].d <120>

The highest Courts in Germany are the Chambers of Spire and Vienna.20. The highest Court in Germany is the Chamber which was lately fixed at Spire, which was instituted [by the Diet of Germany, under]eMaximilian I. in 1495. (And after many Removes, fixed at Spire, in the year 1530, by the Diet of Ausburg, under Charles V. where it remained till this year 1689.)f Now, though this Court useth the Name of the Emperor only [alone] in all its Processes [decrees and verdicts], yet [they are correct who assert] it doth not depend on the Emperor only, but acts in the behalf, and by the Authority of [all] the States of Germany: The Emperor names the President, who must be a Prince of the Empire, or, at least, a Count or Baron. By the Treaty of Osnabruck it was agreed, that under this prime President[, who is called judge of the Chamber,] there should be four other inferiour Presidents [vice-presidents] to be nominated by the Emperor, and [at least]a fifty Assessors (Judges or Companions with them) Twenty six of which should be of the Roman Catholick Religion,18 and Twenty four of the Protestant, to take from the later all just cause of complaint, that their Cases were not [as] favourably heard and determined: Yet |[at this day there is rarely half this number]|,b the [majority of the] Princes that should nominate and pay them, being very slow in both respects, they being much offended with the Imperious Commands of this Court, though they rarely go further than words.

He that is desirous to know the exact form of their Proceedings, must read the [entire] Order of the Chamber, inserted into the Recess of the Diet, in 1495. It is a common <121> Proverb, That the Suits at Spire are drawing on, but never die, (Spirant non expirant).c This is owing to the litigious forms and delays or perplexities in the Processes, and the number of the Cases depending [pending] before too small a number of Judges to dispatch them. But yet, after all, the great[est] Reason is, the Difficulty of executing the Sentence; for the Princes that [have great Estates]d do very little regard what the Judges at Spire say: And they again have so much wit, that they will not hazard the small remainder of their Authority, by giving Judgment [(how justly soever)]+ against a Prince of that Power, [so] that he will despise both them and their Sentence. But then, in this Court (as in others) if they catch a small Fly, they will be sure to hamper him. In the year 1654, in a Diet, there were many Rules or Provisions made for the supplying the Defects of this Chamber: There lies no Appeal from it, but if any man is aggrieved, he may desire [request] a Revision, which yet, to my knowledge, [was never sought, or never granted].a

The Chamber of Vienna when first instituted.21. There is also in the Emperor’s Palace another Court, which pretends to the same Authority with that of Spire (which is above call’d for distinction the Chamber of Vienna)b [. They both say, that]c a Suit begun at Spire cannot be withdrawn and removed to Vienna, [and so on the contrary].dFerdinand [I.] the Emperor, in the year 1549,19 first opened this [court], and published the Rules or Laws by which it was to proceed: Maxi-<122>milian II. encreased them; but Mathias, in the year 1614, [completely] renewed it; and Ferdinand III. changed some of the Rules in the Diet [of Regensburg] in the year 1654. (See the Treaty of Peace, Art. 5. Sect. 20. Artic. 41, 42, 43. Capitul. Leopold.) This Court [up to now] depends solely on the Emperor, though |[the Judges of it are [also] bound to the Archbishop of Mentz, as Lord High Chancellor of Germany [the Empire] by an Oath]|.e

It is not hard to guess what was the true reason why the Emperors instituted this Court<, or why they renovated and solemnly enhanced it>; to which purpose it will be fit to consider, that these Princes observing, that all Appeals <and other important cases> being tried and determined at Spire, and that place frequented on the account of Justice, the Court at Vienna was in the mean time neglected, to the [great dishonour and]+ dissatisfaction of the Family of Austria: For the flying to them for Relief, is the greatest of the Glories of a Prince [of rulers]; and their Majesty is then most resplendant, when it gives men their Due, and repells their Injuries: Besides, he that has the Management [interpretation] of the Oracles of Justice, can [best secure his own Interest, and take care that nothing shall be done contrary to it].a <As is well known, Cardinal Cleselius said often that there was no need for the Emperor to wage war against the Protestants, as it sufficed for him to rule against them in judicial proceedings.>20

Now, the Chamber of Spire[, since it] depended on the whole Body of the Empire, [and was also seated at a great distance from Vienna, and that beyond the Rhine, and therefore seemed to take but little notice of the Danube (that is Vienna.)]b The form of the Law Proceedings being also changed, it was now become very difficult to adjust and end the Controversies of the Dependent <123> States in the Diet [at the Diets], as had been formerly practis’d. Now, if the Emperor could by degrees insensibly draw them to himself only, in conjunction with the Claims of private men, he |[should thereby gain a great Step toward the [gradual] acquiring a Soveraign Authority [potestatem Regiam] over the States]|.c Nor were there wanting plausible Reasons for the opening this Court; for, Why should he be obliged to administer equal Justice to all, [as he had promised in the Capitular,] if all might pass by him, and direct their Addresses to Spire? This Chamber of Vienna [aulic court] pretended also not to be tied to the slow methods of Process used at Spire; and men were pleased with the expectation of a quick dispatch of their Cases [in those instances where they merited a favorable judgment]. For the Court of Spire is so hampered, that tho’ the Case is never so plain, and the Judges are never so willing to do speedy Justice, yet they must omit none of their appointed Forms.

[Some others, that pretend to a deeper inspection, say there is a private [privy] Council at Vienna],a in which the greatest Affairs of the Empire are considered: Now when any great Case has been ventilated and debated in this [aulic] Court, if the Judges find it has any State-Interest in it, they give the Emperor an account of it, with their Thoughts of it, and thereupon it is again debated in that private Council, in which the State-Interest of the Case is more considered than the Justice [juris] of it. As for the Instance; Whether it is for the Emperor’s Interest, that this or that Judgment should be given; and [how]b and which way the execution <124> shall [conveniently] be made: So that if any Scruple of that nature ariseth, [the Judges have private Orders to suspend or delay the Judgment].c {I presume, the Judges of this Court would also take it very ill [to be suspected of Bribery];d and yet there are many that think it is their Interest to clear themselves [(if they can)]+ of this Suspicion, which might be done by shewing to the contending Parties, to which of them the Case depending is committed.}

The Form of executing the Judgments of these Courts.22. As to the form of Execution [of sentences] in both these High Courts, it is thus: First, They enjoin the Party that is vanquished [condemned] to submit to the Sentence they have given against him, upon pain [threat] of forfeiting a certain quantity of Marks of pure Gold, to be paid in part to the Exchequer of the Empire, and in part to the Person [party] suing. If he doth not obey the Sentence upon notice of this, [within the time limited,]+ then the Sum is encreased; but if he still persist, and despise their Threats, he is put under the Bann, or proscribed,e and the Sentence is ordered to be put in execution by Force and Arms, till the Party submit. If the Party cast is a Subject of any of the States, the execution of the Sentence is committed to that State or Prince whose Subject he is. If the Party condemned is a Prince, or Member of the Diet [one of the Estates], then the General [prefect] of the Circle, or some or other of the Members also of that Circle to which he belongs, are commanded to execute it: But if the Party is so powerful, that the Circle is not <125> able to force him to submit, two or three of the next Circles are commanded to join with them: But this rarely happens, that there are any such Executions to be made; and when there is, it is more for the Interest of Germany, and for the securing the Liberties of the several States to compose their Controversies of this [such] great moment by Arbitrators[, than by Suits and Military Executions thereupon]+.

The greater Cases ought to be determin’d in the Diet.23. If any thing ariseth which may affect the whole Body of the Empire [reipublicae], the Emperor cannot determine of it as he pleaseth himself, but [ought to propose it in the Diet, and it is by the States to be there]a ordered as they shall by common Consent agree [consensu]. (Vid. Capitul. Leopold. Artic. 39. sub sin.) Now, because all these Affairs have been very exactly collected [treated] by |[German Writers]|,b it will be sufficient for us to set down here some of the principal Heads of them.

1.c The Emperor has the sole Powerd of assembling the Diet, but so, that he is bound, by his Letters or Envoys, to require the Consent of the Electors, and also to adjust with them [even] the Time and Place. (Capitul. Leopold. Art. 17.) The Electors also may admonish [advise] the Emperor, when they think it is for the Interest of Germany there should be a Diet. But then, because the holding a Diet is a thing of very great Charge [expense] to the States, it is expresly said [in the last mentioned article of Leopold’s Capitular], That the Emperor shall not burthen them with the holding unnecessary Diets. [(Capitul. Leopold. D. E.)]+ During the vacancy [an interregnum], <126> the Vicars of the Empire [(the Duke of Saxony, and the Count Palatine of the Rhine)]+ shall assemble [call] the Diet, and in [his absence],a the King of the Romans, if there be one. The calling [indictio] of it shall not be by any [public and] General Proclamation, but by written or printed Letters, to be delivered personally to each of the States [(or Members)]+ which shall be penn’d in a kind inviting Stile, and not in an imperious commanding Form like a Citation [summons]. The Indiction shall be six months before the Meeting, that the States may have sufficient time to consider what is there to be treated of.

In ancient times the Diet was held every year.24. In ancient times there was a Diet held every year, and it continued but one Month, as is supposed by the German Antiquaries. At this day it is not agreed [firmly established] how often or how long it shall sit, but that is governed by the present Necessities of the publick Affairs{, or at least it ought to be so: Yet they [some] have adjudged it expedient for the preserving the Liberties of the States, that there should be frequent [regular] Diets, as for instance, once in three years at the farthest;21 [and] that when they are [held], necessary care should be taken to expedite the Affairs depending [pending], which now move too slowly, and occasion vast expence [both of Time and Money]+, which might be saved. There are some that [are jealous],b that these affected Delays and Charges are [a State-Mystery, by which the Emperor hopes],c in time, to tire out the States, and make them abhor Diets, which were otherwise [deemed] the most effectual means to <127> secure [the German]d Liberty}.

The Golden Bull has ordained, That the first Diet [(of every Emperor’s Reign)]+ should be at Norimberg, <unless legitimate obstacles intervene,> {which yet is not scrupulously observed now}. For in these Capitulars there is [only care taken]a that it shall be held in a convenient place, within the Empire, as shall be agreed with [by] the Electors: Of [For] a long time some one of the Free Imperial Cities has been appointed for that purpose, the reason of which is not so much in the dark; and, I suppose, the Princes would scarce meet, if the Emperor should appoint Vienna[, for instance].

All the Members are to be summoned to the Diet.25. All the [Members of the States]b are, without exception, to be called to the Diet; and amongst the Ecclesiasticks, [even] those that are not yet confirmed by the Pope{, and before they have obtained their Palls,22 and in the vacancy of any See, the Chapter is to be called}. And whereas the Protestant Possessors of Bishopricks, before the Treaty of Westphalia, were not [called or] admitted to the Diet, they in it obtained the Assignment of a peculiar [special] Place<, which is now held by the Bishop of Lübeck alone>.23 As to those Secular Princes that are minors, their Guardians appear for them; and they that are of full age, are to be admitted before they have asked or obtained their Investiture. This is true, though in the Diet of Ratisbonne [Regensburg], in the year 1608. John Frederick Duke of Wartemburg [Wurtemberg] was excepted against [opposed] on that account. If in any Family the Right of Primogeniture prevails, and is received, only the Eldest is called. Those that have divided their Inheritance, are called [by Families in <128> general, but they have all but one voice: But those that have obtained the Investiture of their Share or Portion from the Emperor, are personally called].c

They that are called to the Diet, must appear in person; or if this is inconvenient, by their Legates [(or Proxies)]+ sufficiently instructed [empowered]: Those that neglect to appear, are nevertheless [concluded by the majority of those that do appear].a By a peculiar Priviledge the King of Bohemia is not bound to appear in the Diet, if it is not held at Norimberg or Bamberg. The House of Austria, and the [Duke of Burgundy],b are at Liberty to appear or not, as they please. {It is not worth our while to sum up the vain useless Rites and Ceremonies [of the Diet].}

The things to be debated are proposed by the Emperor or his Commissioner.26. The things that are to be debated and settled in the Diet, are proposed by the Emperor, or his Commissioner[s], then they proceed to the Debate; where the first Question is, Whether they shall proceed in the order the things are proposed, to consider and determin[e] them; or, whether they shall postpone some of them undecided, and pass forward to the rest of the things proposed? Here the States [pretend]c they are not religiously bound to observe the Method [Order] of the Proposals; but the Imperial Party [(who can easily foresee what the States drive at) have ever stifly pretended, the Method of the Proposals is to be followed; that the Emperor’s Concerns have ever been wont to lead the Van, and those of the States to follow in <129> the next place].d If therefore the States [will do their own Business],e they must of necessity gratifie the Emperor [first]. But then it has been observed, that when he has gained his own point, he is seldom much concerned for those things that the States would have.

When they come to debate, they are divided into three Colledges [(Houses or Chambers)]+ the Electors, the Princes, and the FreeCities, which Division is thought to have been first made in the year 1589,a in the Diet at Frankford: In the first of these the Bishop of Mentz is the [so-called] Director (Speaker); in the second, the House of Austria and the Bishop of Saltzburg by turns; and in the third, that [free] City in which the Diet is held: The Princes vote man by man{, the Counts and Bishops [minor Prelates] by Benches}: The greater part obligeth the lesser, except in the Affairs of Religion, [and those] in which the States are not considered as one Body, but as Parties, in opposition each to other. Whether the same thing ought to be admitted in the matter of Taxes, or granting Money, is a Question not yet decided. (See the Treaty of Westphalia, Art. 5. n. 19.) I should think this might easily be expedited by a Distinction, viz. Whether the Grant tends to the Safety and Security of the whole Body of [Germany],b or is only granted and designed for the Benefit [or special use] of the Emperor? No good [German]c would decline contributing to the first; and as to the latter, it is fit every one should be left to his own <130> liberty, to determin[e] as he shall think fit.

Their way of Proceeding [deliberating] is this: What is approved by the College of Electors, is communicated to the College of Princes; this latter returns to the former their Sentiments of it (which [procedure] is called a Reference [or Conference])d and so it is transacted pro and con between these two till they agree. Then they two join, and communicate their agreed Resolves to the third College or Cities, and if they consent too, then the unanimous Resolves of the [whole Bodies of the State],e are communicated to the Emperor, or his Commissioner[s], and when he has approved of it, that Affair is settled: If the three Colleges cannot agree, their differing Votes are proposed to the Emperor, who in a friendly way, as an Arbitrator, and not in a commanding way, as a Master or Prince, endeavoureth to reconcile them. In like manner, if his Judgment is not the same with that of the States, it is friendly and fairly argued between them, till he is of their mind, or they of his. [After this],a at the breaking up (Recess) of the States,b there is a Solemn [Form, containing the things]c agreed between the Emperor and the States, in the manner of a Contract.

As to the College of Cities, it is to be observed, that though in the Treaty of Peace [of Westphalia] (Art. 8. sect. 4.) the [a] deciding Vote is assigned to it, whereas before[, the] others contended, that they were only to be admitted to the Debates (to offer their Reasons)[,] yet even now [they <131> communicate nothing to this Member of the States, but what is agreed by the two other Colleges].d But then neither can those two Colleges [exact Obedience, or force this third to comply with them against their wills, as a major part];e but where the third College disagreeth from the other two, the thing in dispute is referr’d to the Emperor, till [a way is found to adjust it].f And what cannot at last be agreed, is wont to be referred to another Diet. What is [thus] agreed by the whole Diet, is by the Bishop of Mentz, who is Director of the first College, and in a sort, of the whole Diet, drawn and reduced into the form of a Recess, [Edict, Decree, or Law, and then it is again considered by the States];g and after they have all subscribed and sealed it, then it is published.

The Emperor has yet some Prerogatives above any other Prince.27. By all this which I have said, it will easily [sufficiently] appear how much of [the chief parts of] the Soveraign Power is left to the Emperor. Yet there are some Prerogatives [rights] which belong only to the Emperor in Germany. [These include] 1. the Right of the First Prayers [Requests], by force of which, the Elected Emperor has a Right to [present one person to a Benefice in every of the Ecclesiastical Chapters or Colleges].a {The Emperor has less reason to be ashamed of this Restriction [right], than the Clergy, who [though] owing almost all their Wealth to the Liberality and Bounty of the first Emperors, have [been so ungrateful as to restrain]b the Successors of their Benefactors to the Collation [conferral] of [a single Benefice],c and <132> that too to be conferr’d [only] by way of [an] Entreaty, that shall not be denied.} 2. He gives all sorts and degrees of Honours or Titles: (Yet, see Art. 43, & 44. Capitul. Leopold.) 3. [He only gives and collates the Investitures of the Princes Fees, and all others that pass by the Delivery of a Banner].d 4. He constituteth Universities [scholas publicas sive Academias]. 5. And he only can give leave to build [found] a City. And there are some other [rights] too of less moment.

The Priviledges of the Princes and free States.28. And from hence it is [also] easie to collect how little is wanting to make every of the States Independant Soveraigns. For they, or at least the greatest part of them, have the [intire]+ Power of Life and Death over their respective Subjects. They can enact Laws[, even ones] that are contrary to the common Laws [Right, iuri] of Germany, in their own States. They have an [intire]+ Liberty as to Religion.e They levy Taxes. They make Leagues one with another, and with Foreigners, so [long as] they be not against the Emperor and the Empire, (See the Treaty of Peace, Art. 8. sect. 2. Capitul. Leopold. chap. 6, & 8.) which Right is denied [the Imperial and Free Cities]f expressly. (Art. 9. Capitul. Leopold.) They defend themselves with Force and Arms, and [revenge their own wrongs, especially if they have to do with Strangers].a They build Forts and strong Holds in their Dominions{. They mint Moneys,} and do all other things necessary to the Government of [their People].b (Add. Artic. 33, 34. Capitul. Leopold. Treaty of Peace, <133> Art. 8. n. 2.) The [5. Art. Capitul. Leopold. belongs only to the Electors].c And all these things they do in their own Names and Rights, and not as the Ministers of [loco] the Emperor.

<Some think that these rights do not amount to sovereignty properly speaking, but only to a kind of regional superiority, as they say, a grade of power that is inferior and subordinate to the former. Still, the weight of that superiority is so great that it far exceeds the status of a civil subject, and it leaves no place for monarchical power [majestati] over those endowed with it, especially when their strength far exceeds the measure of any private individual.> Nor doth it affect their Power so much as express the way of having or coming by it, that they acknowledge their Dominions to be Fees holden of the Emperor and Empire. For seeing they transmit them as an Inheritance to their Children [by right], the Investiture is rather to be considered as a solemn Rite, than as a real and true Collation [Conferral] or Gift, <however it was originally acquired,> seeing it cannot be denied to any that desireth [requests] it within the time prescribed by the Law. <And although a Fee may be said to involve dependency, and an obligation arising from benefits received, not all things so denominated immediately reduce their possessor to the level of a citizen and subject. So, too, the fact that someone’s power is restricted by Imperial laws or said to depend on the Empire and universal dominion, in that he constitutes a member of that great Republic or body, does not at all mean that he can therefore be said to have assumed the bearing of a civil subject.>

Their Oath of Allegiance[, which they make to the Emperor,]+ is understood with a saving of their Rights and Priviledges; and |[even those that are acknowledged to be Equals each to other, are yet frequently mutually bound one to the other]|a by Oaths. <And, in fact, the rights of the Estates are not to be measured by their Oath, but their Oath must be interpreted according to their rights.> Nor doth their appearing in the Diet, at their own Charges, [constitute such a burden, or] prove that they are Subjects; for that is common to all the Assemblies of Allies or Confederates. Nor doth their contributing to the Necessities of the Empire prove their Subjection for the same reason. <For though, in a regular system of allies, the majority cannot obligate a dissenting minority through sheer command, as it were, in a state [republica], however, and an irregular civil body,b it is possible for the majority to obligate the minority, albeit not by commanding them [pro imperio] but on the basis of a pact [ex pacto].>

And lastly, That which seems the hardest of all, viz. That any of these States [of the Empire] may be sued in the Supreme Tribunals[, or Courts, or Chambers of the Empire]+; and if they be convicted of any great Offence against the Empire, that they may be proscribed, and deprived of their Dominions; [for even this is common to all]c Confederacies [societatum]. And there <134> is an Example of it in Ancient History, in the League of the Amphyctyones and [that of the] Achaeans, amongst the Greeks: And in our own times, the Confederate or United Provinces thus forced Groningen, and bridled it for some time with a Citadel.24 But then the States of Germany are very well secured [the enjoyment of these vast Liberties. (Capit. Leopold. Art. 28.)]a But then, if any one of a Confederate or United [Equal] Society should insolently and injuriously [obstinately] insult upon another Confederate, [without pretending to claim any Superiority, the rest of the Confederates would have reason and right to curb the Exorbitant Member, and force him to do them Justice].b <For here the finding of fault is imposed on an offender not as a command from above [ex imperio], but as something freely consented to by him and somehow mutually agreed to. And the penalty is imposed not as on a subject convicted of violating a civil law, but as an act of war against the violator of a treaty. However, all these things are more easily explained when the discussion is not about some regular system of allies but about some irregular body, which has some things in common with a state [civitate] and some with a system [of states].> <135>

[1 ]The distinction is between authority (autoritas) and sovereignty (imperium): the emperors could assert their authority or formal entitlement to rule, but they could not actually enforce their commands. Yet this, too, was required for a genuine obligation to exist (see Pufendorf’s On the Law of Nature and of Nations, I.6.9 and 14; The Whole Duty of Man, I.2.5). The emperors’ inability to sanction or enforce their will demonstrated more than anything their lack of sovereignty and the empire’s “irregularity.”

[a ]Rather: if any are ever produced, they will not be very credible

[b ]A capitulatio or Kapitel (Bohun’s “capitulation,” “capitular”) was a short formulation or “article” in a formal document or agreement. A so-called Wahlkapitulation was a specific provision or condition, agreed to ahead of time by the one to be elected. [Ed.]

[c ]Rather: Plus ultra [Still further])

[a ]E.p.: . Whether this will ever be clearly formulated may be rightfully doubted,

[b ]Rather: which he would then have to indulge in equal measure

[c ]coitionem (partnership, association) / That is, reducing someone’s special right by having him share it with others. [Ed.]

[a ]Rather: the latter’s liberty; and, finally, that it was quite absurd to fault the Electors for preferring their own interests to those of the rest, as if they alone were bound to put aside that common human inclination,

[2 ]Compare On the Law of Nature and of Nations, II.3.14, and Elementa jurisprudentiae universalis [Elements of universal jurisprudence], book II, observatio 3.1, on self-love as the most basic and most powerful impulse of human beings.

[(iii) ]The Germans call the Law which they form up on the Debates of the Diet, in the end of it, the Recess.

[3 ]The collective resolutions of an Imperial Diet, sent to the emperor for his final approval, were called the imperial recess, or Reichsabschied.

[b ]Rather: might wish to know what such a great multitude of legates did for so many years, and

[c ]A strong and dry Spanish wine (from the French vin sec). [Ed.]

[a ]Rather: they were believed to be doing this not out of contumacy or mere usurpation, but because they had gotten the emperor to agree to such laws

[b ]Rather: could not treat according to the model of other monarchs, those who did him the verbal homage of calling themselves his

[c ]Rather: For he acknowledges at the very beginning of the Capitular that he has assumed the Empire on such and such terms [leges], and that he has contractually agreed to them with the Electors, acting on behalf of themselves and the remaining Orders.

[a ]Rather: if he dares to act in such a way, they may [licebit] oppose him with impunity

[b ]Rather: Indeed, I think that the more discerning political writers will not deny that there is also a power belonging to the head of a body of confederates that differs in type [specie] from a royal or complete sovereignty [regio et pleno imperio]

[4 ]See On the Law of Nature and of Nations, VII.3.1 and VII.6.7–8. See V.4 in this chapter for Pufendorf’s important distinction between supreme and absolute sovereignty. A (regular or perfect) state is not possible without supreme sovereignty, but it may be limited by laws according to the contract of subjection. Bohun’s translation lacks the necessary precision here, perhaps because of his royalist or Tory leanings.

[a ]Omitted by Bohun. / The distinction seeks to characterize the nature of the emperor’s obligation, as defined by the capitular, without undermining his authority. That is, the estates do not (through the capitular) obligate the emperor as his superiors; this is captured by the second notion of obligation, which does not, however, suffice as an explanation of his supposed sovereignty over them. [Ed.]

[b ]As in the case of promises or agreements. [Ed.]

[c ]E.p.: the

[d ]Rather: allies [sociorum]

[e ]Rather: in

[f ]Rather: and cannot

[a ]Rather: he can render only an unsuitable and imprecise judgment about

[b ]Rather: exactly follows the rules of political [civilis] science / This is a small example of Pufendorf’s tendency to offer independent analyses instead of following established patterns of scholarly commentary. [Ed.]

[c ]E.p.: but there is a question as to the rest of the Empire, and this chapter’s disputes about the power of the Emperor all focus on the matter.

[d ]Rather: today they would consider that designation a severe insult

[e ]Rather: magistracy in a kingdom

[a ]Rather: The entire matter will become clearer from the following / e.p.: Even if, in place of the Emperor’s right to appoint magistrates, we focus on his right to elevate others to certain ranks and honors, we will find that it does not depend entirely on his will

[5 ]The Capitulatio of Leopold I was issued in 1658, the first year of his reign. Like similar documents since 1519, it constituted a sort of Herrschaftsvertrag (contract of subjection) between the emperor and the German estates, published at the beginning of his reign. Article 44 makes admission to the diet dependent on certain territorial possessions (Severinus, ed. Salomon, 91, note 1).

[b ]Rather: revert back to the patrimony of

[c ]Rather: which, if it retained the faculty of bestowing them on others, would not forget itself or those beholden to it

[d ]Rather: . But [for the Emperor] to bestow on a recently created prince, from his own domains, a patrimony worthy of that title, and to elevate him to the same status as the rest of the German princes, would in my opinion exceed the measure of a sober liberality

[a ]Rather: into the order of the remaining German princes

[b ]Rather: even if anyone were willing [so] to worsen his condition / That is, by giving up his independent status and acknowledging the formal primacy of the emperor. [Ed.]

[c ]E.p.: little cities [oppidis] notable only because they are formally free, of the sort that abound in Swabia, might be readily persuaded to / Buchhorn, a free imperial city until 1811, is now part of Friedrichshafen (in Baden-Württemberg). Bohun’s translation obscures Pufendorf’s sarcasm. [Ed.]

[a ]Rather: should be carried out according to the received laws by

[b ]Omitted by Bohun. [Ed.]

[c ]Rather: shear or flay

[d ]E.p.: although some of the Estates can be summoned before Imperial courts by their subjects for certain reasons, the Emperor has little concern about what care they have for their citizens, or how well they administer their domains

[e ]Rather: the Estates (Ordinum)

[f ]E.p.: indeed, many are even unwilling to concede that he can require them to

[g ]Rather: by means of a summons issued in his own name, against which there is no legal recourse [or: without any assistance of the law]. / There is an ambiguity in the phrase absque omni subsidio iuris: either those summoned (or the estates to which they are subject) cannot legally resist the summons, or (less likely), the emperor himself has no legal recourse if his summons is ignored. [Ed.]

[a ]Rather: possessions of the Estates

[b ]Rather: Estates

[c ]Omitted by Bohun. [Ed.]

[d ]Rather: or it

[e ]Rather: It is unheard of in Germany for the Emperor to levy direct taxes <at> will

[a ]Rather: The greatest financial burden imposed on Germans has been for the war against the Turks, fear of whom has always led ordinary folk to expose both their bellies [in military service] and their wallets. But not even here has anything been exacted from the Estates [Ordinibus] on behalf of the Empire. / e.p.: The greatest amount of blood and money has been spent by Germans on the Turkish War; but not even here . . . / Bohun misses the contrast between ordinary people and the estates to whom they are subject. [Ed.]

[b ]Rather: , or through legates sent around for that purpose

[a ]Bohun’s insertion into the text. [Ed.]

[b ]Rather: since they will excessively swell his power, which they fear—perhaps justifiably—as a threat to their liberty

[c ]Rather: , since

[6 ]This refers to the so-called Wildfangstreit. See Pufendorf’s 1667 preface, note= 12.

[d ]That is, besides the archbishop of Mainz. [Ed.]

[a ]Rather: who singlehandedly began with his neighbors, the Dutch, a war that could easily have involved a great part of Germany / See chapter 2, note 25, on Bernhard von Galen of Münster. [Ed.]

[b ]E.p.: Yet there are many examples of the liberty taken by some Estates, in forming ties with outsiders, to the Empire’s great detriment / Pufendorf no doubt means the Confederation of the Rhine (Rheinbund) of 1658, which was supported by France. Also, the Imperial Diet began to meet in permanent session at Regensburg after 1663 and was active during the events of Wildfangstreit. See Pufendorf’s 1667 preface, p. 7, note 12. [Ed.]

[c ]Rather: We must treat of this here because the teachers of politics [politici] who adhere to the new [Protestant] theology do not hesitate to call on the civil sovereignty [civile Imperium] to share that power

[d ]Rather: the latter claim the right [facultatem] of disposing over sacred things

[e ]Bohun’s substitutions (e.g., “church” for “priests” and “clergy”) do not maintain the precision of Pufendorf’s (Protestant) critique, which saw an important role for the laity in the furtherance of church affairs, even in theological debates, and which was in fact more a political challenge to priestcraft than a secular attack on religion as such. [Ed.] / e.p.: For the reform of sacred affairs throughout much of Germany has also led writers on public law [ius publicum,Staatsrecht] to inquire about this matter. According to the old theology committed to the teachings of Rome, the care of sacred matters belongs solely to the Roman Pontiff, and the highest civil rulers are left with nothing but the protection and material support of the clergy, and the occasional distribution of certain offices and sacred benefices. However, the more recent [Protestant] doctrine grants far more power to the supreme [civil] rulers and has thereby provided an occasion for much disruption [magnae rerum conversioni] throughout Germany. We must give a brief account of this, in accord with the focus [captu] of our work

[a ]Rather: were tolerated here and there,

[b ]Rather: unexpectedly inflicted a great loss upon the papacy

[c ]E.p.: First place among the causes of that affair is rightfully assigned to divine providence; but among those that led men to that point, beside a disposition already prone to such a change, blame belongs mainly to

[d ]Rather: side of the indulgence sellers

[e ]Rather: sins that are paid for than prevented

[a ]That is, to have made him [Luther] a bishop or a cardinal. [Ed.]

[b ]Rather: before a tribunal of priests

[c ]Rather: thought it right to deprive these lazy flocks of their fodder

[d ]Rather: papal nephews / That is, the pope’s relatives and even his own illegitimate children. [Ed.]

[7 ]Martin V was pope from 1417 to 1431 and belonged to the Roman Colonna family, which had already produced twenty-seven cardinals.

[a ]Rather: restored cultivation of letters at that time contributed to the reception of that new doctrine [disciplina; i.e., Protestantism] with such

[b ]That is, the Imperial Chamber Court (Reichskammergericht) at Speyer; see §20 in this chapter. [Ed.]

[c ]Rather: since that Court also seemed more inclined toward the outed Clergy,

[a ]Rather: shameless for the latter

[b ]Rather: their power by his arms, and the Treaty of Passau was entered into

[8 ]Formed by a number of Protestant princes in 1531 at Smalkalden (in Hesse-Nassau) after Charles V refused to accept the so-called Confessio Augustana (formulated by Luther and Melanchton) at the Diet of Augsburg (1530), the league was finally defeated in 1547 after some defections from its ranks and the capture of Land-grave Philip of Hesse and Elector Johann Friedrich of Saxony. In 1552, Moritz of Saxony entered into the Treaty of Passau with Ferdinand I of Austria, an agreement that paved the way for the so-called Peace of Augsburg (1555). This treaty officially acknowledged Protestantism (i.e., Lutheranism) in the empire through the principle of cuius regio eius religio, whereby individual princes could dictate the official religion of their own domains while eschewing interference in those of others.

[c ]Rather: called the religious peace [of Augsburg], whose main stipulations were

[d ]Rather: one another to abjure it

[a ]Rather: Estate / That is, those directly (immediately) subject to the emperor, rather than through intervening (mediate) powers or authorities; see chapter 2, note 3. [Ed.]

[b ]Rather: verdict [ius] should be rendered by

[9 ]This refers to the so-called ecclesiastical reservation (reservatum ecclesiasticum), a clause in the Peace of Augsburg (1555) by which Protestant officeholders were allowed to retain the lands then under their control (which would not have to be returned to Catholics), but which required that if a Catholic became Protestant thereafter, any Church lands under his control would go to a Catholic appointed in his place.

[10 ]The reference is to Gebhard Truchseß von Waldburg, Catholic archbishop and elector of Cologne, who was excommunicated, deposed, and replaced by Gregory XIII in 1583 for publicly converting to Protestantism (Calvinism) and marrying a countess. These actions violated not only the reservatum ecclesiasticum but also the Golden Bull, and they generated hostilities that lasted until 1589.

[11 ]Article V.15 of the Treaty of Westphalia not only reaffirmed the reservatum ecclesiasticum for Catholics but also granted it to Protestants in turn. Moreover, it established January 1, 1624, as the “normal year”—i.e., the point at which the distribution of ecclesiastical possessions would be taken as normative, in the sense that any revisions would not look back to conditions before that date. See V.12, p. 133, in this chapter.

[a ]Rather: their respective interests and consult less frequently about what they had in common

[b ]E.p.: Protestants

[c ]Rather: ecclesiastical goods seized by the |[laity]| after the Treaty of Passau should be restored / Ferdinand II issued the Edict of Restitution in 1629. [Ed.]

[a ]Rather: assisted or at least not opposed him, he would have subdued the Protestants, after which it would have been easy as well to bend the rest [of the Estates] to his will

[b ]Rather: Reformed, or Calvinists / E.p.: Reformed

[c ]Rather: Ecclesiastical affairs, and by reference to them in political affairs / See note 11 in this chapter. [Ed.]

[d ]Rather: . Mediate sacred holdings [bona sacra] / On mediate and immediate, see chapter 2, note 3. [Ed.]

[e ]Rather: conduct their worship [cultum] in the privacy of their own homes, or nearby [vicinis locis] / That is, not in public. [Ed.]

[a ]That is, he could do so with impunity. [Ed.]

[12 ]This qualification was removed in the e.p., in accord with Pufendorf’s position in Of the Nature and Qualification of Religion. See III.6, note 8, p. 88.

[13 ]Conring’s work was published in 1643. See Pufendorf’s 1667 preface, p. 6, note= 11, on Conring.

[a ]The so-called Sachsenspiegel and Schwabenspiegel. [Ed.]

[b ]E.p.: the example of the Italian schools, it seems, attendance at which Germans then thought something to boast about

[a ]Rather: that takes precedence

[b ]Rather: just as they may

[c ]Rather: condition [statui] of the Empire as a whole

[d ]Rather: Still,

[14 ]The Constitutio Criminalis Carolina was the penal law of the empire, introduced by Charles V at the Diet of 1530 and ratified at Regensburg in 1532.

[15 ]The reference is to Conring’s De Imperii Germanici republica: Acroamata sex historico-politica, seu discursus novi historico-politici de Imperii Germanici civibus, urbibus, duribus & comitibus, electoribus, episcopis & judiciis (Ebroduni [Yverdon], 1655).

[a ]A “hundred,” according to the Oxford English Dictionary, was a subdivision of a county or shire with its own court; Bohun uses it to translate pagus: a village or county district. [Ed.]

[b ]Assessores “sat with” or advised the counts or graviones;scabini [Schöffe] were lay judges who worked together with another lay judge and a professional judge. [Ed.]

[c ]A scultetus (in German, Schultheiß), was the equivalent of a sheriff. The phrase in parentheses is Bohun’s clarification. [Ed.]

[a ]Rather: on account of their reputation for

[b ]Palatium,Pfalz, or Palatinate—used generally (etymologically) here and not just in regard to the Palatinate on the Rhine; see III.3, note 4, p. 83. [Ed.]

[c ]Rather: retained for themselves alone almost

[d ]Rather: over them [linguistically, the only available referent is the electors (Ed.)] that he did not hesitate to excommunicate them and to pronounce their subjects free from their obedience to them; moreover, he boasted that

[a ]Rather: the old custom remained

[b ]Rather: if, especially during the previous century,

[c ]E.p.: persons and the Fees

[d ]Rather: dare to call the judgment of the princes, or what the Germans term Das Fürstenrecht, a mere fiction

[e ]Rather: later on most princely families, who were imitated by the free cities, established arbitration tribunals [judicia arbitraria] for themselves, which the Germans call Austraegas [Austrägalgerichte,Austragsgerichte]; their origin probably dates to the final years of Frederick / Frederick II ruled 1212–50. The time between the extinction of the Staufers and the start of the Hapsburg dynasty (with Rudolf von Hapsburg) was known as the Interregnum (1256–73). See Bohun’s addition in §19, p. 143, of this chapter. [Ed.]

[f ]Rather: Very often, too, those

[a ]Rather: with legal expertise

[b ]Rather: the persons [vs. the goods] of the clergy

[c ]Rather: laid hands on the persons of the clergy

[d ]Rather: most clergy

[e ]See §14, p. 138, of this chapter. [Ed.]

[16 ]Including the Dominicans and Franciscans (founded in the early thirteenth century) and the Jesuits (founded after the Reformation).

[a ]Rather: subject to their own

[b ]Rather: wide-ranging proceedings and pettifogging lawyers

[c ]Rather: more comprehensive [amplissimo],

[d ]Because of the emperor’s travels. [Ed.]

[a ]Added by Bohun. / The praetor was the chief judicial officer. [Ed.]

[b ]Rather: equipped with a privilege

[c ]Rather: Moreover, there

[a ]Rather: is no appeal from them [to Speyer or Vienna]

[17 ]See §15 and note e, p. 139, of this chapter.

[b ]Rather: constituted by special agreement

[c ]Rather: most frequently

[a ]This distinction makes clear that Bohun’s frequent use of “Princes” for “Estates” is a reductive simplification. [Ed.]

[b ]Rather: here and there in the common handbooks

[c ]Rather: are required for the tasks of stroking and properly maintaining the commissioners of the arbitrating princes

[d ]Rather: The judgment of the Austragas must be rendered within half a year or a year, though it would be a miracle in Germany for a lawsuit of any importance to be settled within that time frame / The enumeration is Bohun’s. [Ed.]

[e ]Rather: with the consent of the Estates by

[f ]The parentheses are Bohun’s, who reveals here the date of his translation. [Ed.]

[a ]Rather: a total of

[18 ]Twenty-six, because the emperor appointed two of them (Monzambano, Über die Verfassung, trans. Breßlau, 90, note 2).

[b ]E.p.: that number has never been completely attained

[c ]The Latin (lites Spirae dicuntur spirare, sed nunquam expirare) plays on the words Spirae (Speyer), spirare (to breathe, live on), and expirare (expire, cease, die). [Ed.]

[d ]Rather: are confident in their own power

[a ]Rather: remains quietly sunk in a deep sleep

[b ]The parenthetical information is Bohun’s clarification. [Ed.]

[c ]Rather: , so that

[d ]Rather: nor the reverse

[19 ]Ferdinand I reorganized the Aulic Council (Reichshofrat) in 1559.

[e ]E.p.: the Archbishop of Mainz, as Chancellor of the Empire, claims the right to hear appeals

[a ]Rather: easily ensure that that goddess does not deliver any replies contrary to his own advantage

[20 ]The Austrian Melchior Klesl (Cleselius), 1552–1630, held many positions, including chancellor of the University of Vienna, privy counselor, and cardinal (1615).

[b ]Rather: was in its counsels removed from [the influence of] the Imperial court [aula], and being located on the Rhine it apparently cared little about which way the Danube flowed.

[c ]E.p.: would impose on the Estates a great necessity to acknowledge his authority [majestatem colendi]

[a ]Rather: One penetrates still more deeply into the nature of this Court if one considers that there is a yet more secret or secluded [sanctius] Council at the Emperor’s court

[b ]Rather: whether

[c ]Rather: the announcement of the verdict is postponed

[d ]Rather: if the various parties tried to gain favor by bribing them

[e ]That is, placed outside the law and its protection, as if returned to the state of nature, with anyone helping him being subject to similar penalties. [Ed.]

[a ]Rather: such a matter must be placed before the Diet, or a gathering of all the Estates, and

[b ]E.p.: many

[c ]The Latin original does not enumerate. Bohun begins to do so but does not continue. [Ed.]

[d ]That is, the emperor alone, or, only the emperor. [Ed.]

[a ]Rather: the absence of an Emperor / On the King of the Romans, see IV.9, pp.= 109–10, and note 25. [Ed.]

[21 ]See Pufendorf’s 1667 preface, p. 5, note 9.

[b ]Rather: suspect, however

[c ]Rather: to the Emperor’s advantage, in that he hopes thereby

[d ]Rather: their

[a ]Rather: mention only

[b ]Rather: Estates of the Empire

[22 ]See IV.4 and note 12, p. 102.

[23 ]Protestant principate-bishoprics were gradually secularized after the Peace of Westphalia. Thus, when the prince-bishop of Magdeburg died in 1680 (and the city went to Brandenburg), Lübeck alone retained this status (the principate of Osnabrück alternated between Protestant and Catholic bishops). See II.6, note 19, p. 64; and II.11, note 27, p. 71.

[c ]Rather: as individuals, if they have been specially invested with their portion. Those who possess their domains jointly [indivisim] are all called, but they have only one vote together / See II.1. [Ed.]

[a ]Rather: bound by that which the majority has decided

[b ]Rather: Estates of the Burgundian circle

[c ]Rather: have often maintained that

[d ]Rather: , for reasons easily detected by those with finer noses, have always resisted this. That is, the Emperor’s concerns have always taken first place, while matters benefiting the Empire as a whole [Reipublicae universae] have been forced to stand behind them / e.p.: . . . as some have interpreted the matter, have always resisted this, because the Emperor’s . . . / Bohun’s rendition of the parenthetical matter makes the estates the object of suspicion, while it is really the imperial party whose underlying intentions are being exposed. This is consistent with the tempered e.p. version. [Ed.]

[e ]Rather: wish to deliberate about these at all

[a ]Rather: 1489 [Severinus, ed. Salomon, 112, note 2]

[b ]Rather: the Empire [Reipublicae]

[c ]Rather: citizen

[d ]Rather: and Coreference [correferre]

[e ]Rather: Estates

[a ]Rather: Therefore,

[b ]The Reichsabschied, or imperial recess. [Ed.]

[c ]Rather: formula stating: These things have been

[d ]Rather: the two superior colleges do not communicate with it until they have agreed with one another

[e ]Rather: impose their decrees as commands or, as the major party [majority], force these upon them against their will

[f ]Rather: here as well concord is attained

[g ]Rather: checked once more

[a ]Rather: recommend one person to an ecclesiastical benefice in any [quolibet] clerical college he chooses

[b ]Rather: restricted

[c ]Rather: only one Benefice in each college [singulis Collegiis]

[d ]Rather: He alone bestows investitures and confers princely fiefs, including those customarily symbolized by a banner / That is, Fürstenlehen and Fahnenlehen, the latter conferred by the manual bestowal of a banner subsequently displayed to indicate the recipient’s newly acquired status. [Ed.]

[e ]Insert sentence omitted by Bohun: They take all revenues from their own domains for themselves. [Ed.]

[f ]Rather: to non-immediate citizens of the Empire / See II.1, note 3, p. 50. [Ed.]

[a ]Rather: violently revenge the injuries done them, especially against outsiders

[b ]Rather: a state [civitatis]

[c ]Rather: special dignity of the Electors is treated by 5. Art. Capitul. Leopold.

[a ]Rather: it is well known that allies, too, are mutually bound / e.p.: it is well known that allies and others, who are by no means to be numbered among subjects, are bound

[b ]Like the empire. [Ed.]

[c ]Rather: is not contrary to the nature of

[24 ]During the third of the so-called Sacred Wars involving Delphi (355–346 ), the Amphictionic Confederacy of northern Greece (with the support of Thebes and Macedon) disciplined Phocis, a noncompliant member state; the Achaean Confederacy of southern Greece existed for some three centuries and was finally abolished by the Romans in 146 On these and other ancient confederacies, and their relation to the regular/irregular distinction, see Pufendorf’s dissertation, De rebus gestis Philippi Amyntae filio (Heidelberg, 1664), which anticipated many ideas in the present work and led people to suspect Pufendorf as its pseudonymous author (Monzambano). The United Netherlands built a citadel within Groningen’s walls in 1600.

[a ]Rather: by Capit. Leopold. Art. 28.

[b ]Rather: he may be restrained by the rest