ARTICLE I.

THE Author of these Libells employs a great deal more of care and art to colour the Designs of his Party, then to esta­blish the Grounds of his imaginary Right. In this last his Pen is both dry [Page 2]and crawling: In the other it doth spread it self with a pleasant stream of words into a Thousand superflu­ous expressions, endeavouring as much as it can to present without disco­very a false Light, hoping to change the Nature of things by changing on­ly their Names. He extolls the love which his Master hath for Peace, at the very instant when he is breaking it; he complains at the same time when he strikes; he takes away by violence, when he asks; he pleads and decides at once; he requires Peace, and brings War; attaques without Rupture, forces without con­straint, and plaies with so much con­tempt upon the Ignorance and Cre­dulity which he supposes to be in the Judgment of his Readers, that he will needs have the way of Fact to pass for Justice, Violence for Moderation, Usurpation for Title, and Defence for a Crime: and so he can but onely take away the odious name of War from the Attempt which Frame is now making, he thinks that she may [Page 3]freely practise all manner of Hostili­ties under that of Peace: Which is the effect of the excellent opinion they have of the abilities of all other Nations, whom they esteem bar­barous or simple enough to believe things of this nature, and afterwards glory in their jesting, (according to their obliging custome of turning into ridiculous the most Illustrious Nations) That they took us for Ger­mans.

This dull conceit tends evidently unto two Ends: The one, to extenu­ate a little the ugliness of their En­terprise, and the Scandal and Confu­sion which they foresee it will pro­duce throughout all Europe: and that they may make all the cares which we shall take for our Defence pass for as many Contraventions of the Peace; and by this means get some pretext whereby either they may press their Allies to joyn their Arms to theirs, in favour of their Design, or else may one of these daies bring the War upon themselves, for ha­ving [Page 4]failed in performing the Obli­gation of their League of Warrantie. By which it is obvious to all sorts of capacities, that the Absolute Empire which they do equally affect over their Friends & Enemies makes them act so Magisterially both with the one and the other: So that to keep Peace with them, it is requisite to give them all that they require; and to satisfie the Alliances made with them, it's necessary to help them to take all.

But to judge of the injustice of this Pretension, it is sufficient to read over the Treatie of the Peace of the Empire, in the Article of Warrantie, and that of the League of the Rhine: and then it will be clearly seen, that the Obligation of reciprocal Succours doth extend no farther then to those Lands which France did possess in the Empire at the time when these Leagues were concluded; that they do not reach any new Conquests or Claims, and ought not to be under­stood but against Aggressours: Else the Princes of the Empire had imposed an [Page 5]horrible Servitude on themselves, to be the Ministers and Instruments of the Ambition of an Allie, to inlarge his Limits at the price of their bloud and of their own safetie, and to be bound to take arms into their hands as often as the Writers of France should think fit to put their hand to the pen, to frame to their Crown some new Rights.

It is not enough to understand the cunning of the Ends of their procee­ding, but it concerns all the World to penetrate farther, even into the bot­tome of their Designs. If we will take it upon their faith, they have no other End but an honest Accommoda­tion with Spain; They themselves in­vite Forreign Princes to intermeddle in it; They protest that they will suf­fer themselves to be brought to mo­derate Conditions, That they do make War against their stomachs, That they would lay down their arms with pleasure, That they would sub­mit themselves to the Judgement of those who are willing to imploy their [Page 6]pains in it. Let us see then whether their behaviour doth suit with their words. — Spectemur agendo.

All their Actions and Motions tend towards a vast and deep Design. This proud arming, this prodigious ex­pence, this excessive profusion in their forreign Negotiations; this forward­ness in making of Leagues, to gain Ministers, to keep them in business who may give them jealousie; the re­iterated instances and the large offers which they have tendred to the Swedes to embroil the Empire; the extraordinary application to force the Polanders by corruption and vio­lence to chuse a Successor contrary to their Fundamental Laws; are proofs capable to convince the darkest un­derstandings, that all this immense Preparation of Arms and Intrigues hath something in it of greater extent then the bare Conquest of some Pro­vinces, (which our over-much Credu­lity hath exposed to them as a prey) and ends not in a simple desire of tear­ing away a few pieces of them by a [Page 7]Treatie. These huge Mountains are not to bring forth Mice, but to vo­mit out Flames as the Vesuve, to set the whole neighbouring Countries on fire.

The first The Bi­shop of Rodes. Governour of the most Christian King hath given him for a Modell the Life and Designs of his Grandfather Henry the Fourth, as may be seen in the Book which he hath published. This Prince, as well by his own Genius, as by the happy success of his first Undertakings, hath relished such Instructions, and hath solelie proposed to himself this Exam­ple for the Rule of his Actions. The History of this Great King hath been his most ordinary study: He hath, in imitation of him, taken great care to accumulate much Treasure, sought for Alliances abroad, and at length hath raised most powerfull Armies. We must therefore conclude, that he acts upon the very same Draughts; and that all we see at present are but re­newed Projects, and the effects of those Impressions which he hath suck­ed in with his milk. To draw the Con­sequences [Page 8]from these Principles we need onely reade the Memorials of Henry the Fourth, those of the Pre­sident Jannin, and of the Bishop of Rodes; and conclude, that whatso­ever that Potent King had conceived in his imagination, this King intends to bring forth by the power of his Armies. But as the desire of Glory hath no bounds, and that his years and present condition put him in a capacitie to run a longer course then Henry the Great; so we cannot rea­sonably expect that the swiftness of the Rhine shall be able to stop him.

His Writers have taken a great deal of pains to nourish him in these thoughts: and as that sort of men have no other studie but to observe the weakness of their Prince, the bet­ter to insinuate their Flatteries, they have freely sacrificed their mercenarie Pens to tickle this natural desire of Glory which they have discovered in him. The Rewards they have receiv­ed are authentick marks of his Acce­ptance; and this acknowledgment in [Page 9]a young spirit, that believeth himself to be in a posture to execute all that pleaseth him, and which hath drunk in this Maxime, That to take posses­sion by the Sword any Title is suffici­ent, must needs be esteemed a dan­gerous forerunning Sentence against all those upon whom he shall believe that he hath any thing to pretend.

Which yet more clearly to make appear to us, we onely need reade the printed Books which have lately been dedicated unto him, and prin­cipally one above the rest, which carries the Title of THE JƲST PRETENSIONS OF THE KING OF FRANCE TO THE EM­PIRE; where having laid down for a Ground, That the Dominions of Sovereign Princes have always been the Dominions and Conquests of their Estates, and, That the Dominions and Conquests of Crowns can neither be alienated nor prescribed; he adds the two Articles following:

• 1. That the greatest part of Germanie is the Pa­trimony and ancient Inheritance of [Page 10]French Princes:
• 2. Charlemagne did possess Germanie as King of France, and not as Emperour.

I leave to those who will vouchsafe to reade over this Treatise, to form the Consequences from such Premisses.

If one may judge of what is to come by what is past, all Europe will have cause enough to stand upon her guard, if it doth but reflect upon the conduct of France since the close of the Pyrenean Peace till this minute. Hardly did we see that Treatie esta­blished upon the most religious and inviolable Laws that humane Pru­dence could devise, when presently, upon a small punctilio of difference for the precedency of Embassadors, (which had been always in dispute, and was left undecided by the Peace) they proceeded to the uttermost ex­tremities against a Father-in-Law, at the same time when they suffered without murmuring the unheard-of Indignities which the Grand Vizier at Constantinople caused to be committed against the Royal Person of the most [Page 11]Christian King in that of his Embas­sador; and when they did admit, without taking the least offence thereat, the Competition for place betwixt the Swedish Embassadors and theirs: which is so much the more remarkable, that even in the Pyrenean Treatie the two Crowns marched e­qually hand in hand together; and that in one of the Instruments there­of Spain was the first nominated, and in the other France. Why then did they conclude the Peace with this E­qualitie, if they were resolved to break it afterwards upon the point of Competition? Which makes it evi­dently seen, that from the very day of the Peace they have always watch­ed for the occasions of War, and con­cluded this Treatie onely to take a little breath to settle their Revenues at home, and make an end of redu­cing their people under the yoak.

The Bonesires which were every where kindled for joy of the Peace were not quite extinguished, when an evident breach of the Treatie was [Page 12]seen by the Succours which France sent into Portugal; at the beginning under the name of the Marshal of Tu­renne, and a little while after without any kind of disguise. A Sedition which happened at Rome, to the great displeasure of the Pope, by the Soul­diers who were provoked with an in­finity of Insolencies committed by the French Embassador's Familie, The Duke of Creqny. was near putting all Italy again into Com­bustion, had not the tears of his Ho­liness stopt it, by sacrificing his own Kindred, and erecting a Pyramide to France for an unworthy Trophie of the spoils of the glory of the Vicarie of Jesus Christ, and the common Fa­ther, of whom they style themselves the Eldest Sons.

A little after they obliged the Duke Charles of Lorrain to sell them his Dutchy, to the prejudice of the lawful Successor: and the Contract not being valid, they forced him with violence to put the onely place which was left him into their hands; by means whereof (revoking their Bar­gain) [Page 13]they got the thing without pay­ing the price.

The Bishop of Munster, who was included in the League of the Rhine, seeing himself attaqued in the Empire by the States of Holland, in vain im­plored their assistance, by virtue of the Warrantie: but when he began to resent it, he was straight assaulted by the French Troups: and if his own Enemies had not shewn more mode­ration towards him then their Allies, his Countrey (which is of the Patri­mony of the Church) had been at present totally reduced into Ashes.

The War of England against the States of the Ʋnited Provinces, which was raised by the French practices, and fomented by their industry, in giving the counterpoise to him who for the time appeared the weaker, hath sufficiently instructed all the World, that the Game of France is to depress all Powers which are capable of obstructing the torrent of their Enterprizes.

But to stray no farther from the [Page 14]matter which I have in hand, I will be contented to note onely two plain Arguments, which evidently prove that their Design is to drive on their Conquests as far as ever the fortune of War will suffer them, and that those Overtures of Peace which they do make are but to amuse the neighbouring Princes, and to bridle their own Subjects; believing that the first will not have recourse to Arms for hindring their progress, so long as they have any hopes to get it done by Negotiation; and that the others, terrified with the apprehension of the quick end of this War, shall not dare to make use of any occasion which they will hold to be uncertain and staggering.

The first Argument is, That at the instant when they profess to seek Peace, they have laid an essential Obstacle in the way, by concluding a League offensive with Portugal for ten years; by the which they binde themselves not to treat, unless the Portuguese may be intirely satisfied. [Page 15]They are not ignorant how exorbi­tant the demands of that People are, and that this is to touch Spain in the apple of the eye, and put the same stop to the Peace which was the prin­cipal Difficultie in the Debates of the Pyrenean Treatie. The same League carries (as it is written from Lisbon) that all the Harbours which the Por­tuguese shall take in Spain, either up­on the one or the other Sea, shall be put into the power of France: which directly corresponds to the Design which they have of late framed, to make that Kingdom absolute Mistress Of the Article England had need take care. of the Trade. All this hath no connexion with their Claim to Bra­bant and the other Provinces: and if they had no other Design then to take possession of their pretended Goods, without breaking the Peace, they would not contrive the acqui­sition of Ports where they themselves confess that they have nothing to pre­tend.

The second is, That at the same time when they protest they have no [Page 16]design to break the Peace, they la­bour to destroy the Foundations of it, and to take away all hopes of a Re­conciliation, by annulling the Queen's Renunciation, upon which the whole Pyrenean Treaty doth so lean, that in case this Basis shall be overturned, of necessity the whole Fabrick must fall. If this Renunciation doth not subsist, there is no way left for an Accommodation, nor means of find­ing any securitie necessary to it. The Peace which shall be made cannot be but the seed of a new War; it will be impossible to cut the evil by the root. 'Tis here where the Mediators shall find themselves puzzled: and if all their Pretensions be granted, then will they be absolute Masters of the Netherlands, and in a condition to take possession by the same Title not onely of that part of Brabant of which the States of the Ʋnited Provinces stand possessed, but also of all the rest of their Countreys, as I shall make appear more at large in the Fifth Article. If they adjudge unto [Page 17]them that part which we hold, they give a previous Sentence against themselves, and will be condemned by their own Decree. But if France content it self with a part, it will be needful that the Queen should pass a new Act of Renunciation touching all the remainder, which, according to their Principles, must be subject to the same causes of Nullity that the first is; if it be true that Princes can never lawfully renounce their pre­tended Rights: And I do not see how they can finde new Clauses nor new Oaths to make this Act more ir­revocable then that which they seek to destroy. However, though all they ask at present were granted them, no­thing could be solidly treated of, be­cause by annulling the Renunciation we should open a door unto them to bring in a new Pretension upon all the Monarchie; and then must the Peace needs be as brittle as is the life of a young Infant, who hath yet a thousand dangers to go through be­fore he can reach to those years in [Page 18]which he shall be able to secure the Succession in his own Line, and cut off the course of the vast hopes of those who build the design of an Ʋ ­niversal Dominion upon his Death. In a word, it is superfluous to reason by Arguments, when the things do speak of themselvs. The most Christian King had the goodness to undeceive us in the vain hopes of a Peace, by a Let­ter written by his order to the Mar­quess de la Fuente, upon the Offer made by his Excellency the Marquess of Castel-Rodrigo in most respectful terms, to enter into a Treatie of Ac­commodation, and remit the business to the Arbitration of the neighbour­ing Princes; by his Answer he doth not onely reject the Proposition, and look upon it as an injury, but be frames to himself a voluntary impos­sibilitie of a Peace, which he esta­blisheth upon the Reply of our Queen to the Marquess de la Fuente, in prosecution of a Discourse which the Queen of France had slightly in­timated to the said Marquess by way [Page 19]of Conversation, and strives to settle upon so weak a ground-work not onely the Justice of his Arms, but also an essential Obstacle to a Re­conciliation.

By all these palpable Verities, which cannot be called in question, it is easie to discern, That France, imploying her endeavour to render the Peace impossible or unsure, aims absolutely at the intire Destruction of a Monarchy which is the Bulwark of all the rest, that she may attaque them with less trouble, having thus beaten down their Flankers. It is left to wise Politicians to make neces­sary reflexions upon a matter of such high concernment.

ARTICLE II.

THe French Academy hath of late taken a great deal of pains in the polishing of their Language, and hath given it self the liberty to re­form in it many words, to adde some, and to enrich it with many graceful expressions: But I never could finde that ever it called War by the name of Peace. The Latines indeed, by an I­ronical Figure, have named War, Bellum; and it may be in imitation of them this ingenious Writer would make us believe that Hostilities are Gallantries, and the preparation for a great Army but a Turnament.

Conjugium vocat, hoc praetexit nomine culpam.

I desire very much that he would [Page 21]explain unto us what he means by the word Rupture, and how he can recon­cile a violent Intrusion by the power of men and Cannons with the due observation of a Treatie, which in the first place doth prohibit all man­ner of such armed attempts, and which is instituted to no other end but to hinder them. I would know how he can make the Peace subsist with the most lamentable effects of War; and how that by the onely defect of the formalitie of sending a Herauld at Arms to denounce it, it loses all its bitterness and injustice. For my own part, (who use to reason more dully) I have always held that to be a Rup­ture which is inconsistent with the essence of Peace, which overthrows the foundations and troubles all the harmony of it. There are certain Attempts which may alter a Peace, and yet not break it, which be rather Contraventions then Infringings, and which do not give the parties injured the right of Revenging themselves by Arms, but onely to pretend Repa­ration [Page 22]by more gentle means. The Turks do not esteem to be a Rupture the Incursions which are made by the one or the other partie in times of Peace, provided they be not accom­panied with Infantry and Cannon. But when one doth act by open force with the full bodies of an Army, followed with all the Train necessary for great Enterprizes; that Subjects are solicited to rebell against their Prince, and that they are compelled under the penalty of the Confiscation of their Goods to take an unjust Oath, without processe and without forme of Law; I do avow that I am ignorant what either Peace, War, Treaties, or Ruptures are, if all these things can have any compatibilitie together at the same time. It is a new knowledge in Law whereof the Ancients were ignorant, who have left us an Instruction totally opposite to this doctrine: Philo de Legious. Hostes non solùm existimantur qui jam navali aut terre­stri praelio certant, sed pro talibus ha­bendi & qui machinas admovent por­tubus [Page 23]aut moenibus, etiamsi nondum pugnam incipiunt.

But that we may be the more able to judge in this business, it is necessary that we examine all the terms of the Treatie of Peace, and consider the na­ture, the effects and the ends of the same; to conclude that if all those be destroyed by this Invasion, it cannot be called by any other name then by that of a manifest Rupture.

The motive Cause of the Peace was, The desire of the good, quiet and ease of their good Subjects: The Ob­ject was, To put a period to so many mischiefs: The Effect, To forget and extinguish all the causes and motives of the Warrs past, and to establish a sincere, entire, and durable Peace betwixt them and their Successors. All these are o­verthrown by this present Attempt, which doth trouble the good and tranquillity of the people, renew the publick misfortunes, rekindle and re­suscitate all the causes and motives of the Warrs past, and raise new ones. I do not see how one can conceive [Page 24]that Peace should subsist with an In­vasion, which ruines it in its Cause, in its Ends, and in all its Effects.

Moreover, if the Entry of the most Christian King into these Provinces be but a simple taking of possession, yet is it altogether illegal, contrary to the Laws of Nations, and to the customes and practice of the Civil and Municipal Laws, as I will make appear in the Article following; and what colour soever these do put upon it, it cannot pass but for the way of Fact, which is never permitted ex­cept by the Law of War. So that by endeavouring to take away the name of War from this Invasion, they do deprive it of that Veil which was able to cover it at least with the false appearance of the Right of Arms, and manifestly conclude, that if it be not a Rupture, 'tis a violent Intrusion; if it be not a War, 'tis a Depredation and Piracie; and if it be not an in­fringing of the Peace, it is an unjust Attempt, which gives a shock to all Laws and Forms. Thus are the [Page 25] French intangled in their own Nets, and thinking to make their Cause plausible, or less odious, by a Sub­tiltie which hath neither body nor substance, they destroy the principal Foundation of it, and take from them­selves the means of establishing their Conquest upon the right of War, by declaring that they will Conquer without breaking the Peace. L. Hostes, de vern. signif. Hostes sunt qui nobis, aut quibus nos publicè Bellum decernimus: caeteri Latrones aut Praedones sunt.

We do ordinarily distinguish be­twixt Contravention, Infringing, and Rupture. The first is but an Abuse either in action or omission con­trary to some particular Condition, which hinders not the existence of a Treatie in its integritie, and onely af­fords the parties concerned a right to pretend that the Dammage be re­paired. The second shocks the sub­stance of the Peace, overthrows the Ground-work of it, and gives a right to pursue satisfaction by Arms, if it cannot be obtained by any other [Page 26]way. The third consists simply in those acts of Hostilitie which are in­compatible with Peace, which is in one word when one pursues his Right by force: And War, according to the opinion of Civilians, is nothing else but A Contention by strength of hands and by violence of Arms. O­thers take the word Rupture more at large, and extend it to three cases: The first, to every Act which is a­gainst the nature and ends of Peace: the second, to the committing or o­mitting of something which is con­trary to the express tenour of the Treatie: the third, to the making of some Attempt which brings Conse­quences along with it incompatible with all that can be understood by the name of Peace. Grotius lib. 3. cap. 20. These three Conditions meet here: there is open Force; there is an express Contravention to the most essential Articles; and Consequences which induce an irreparable Dam­mage.

The Contravention to the Treatie [Page 27]on the part of France may evidently be proved by a multitude of Acts re­pugnant to the sinceritie of that Friendship which the two Kings pro­mised each other, which is the chief End of this Peace, and which over­throws the Conditions agreed on be­twixt them. The secret practices, both within and without the Realm, have never ceased since the Peace; thus to keep the Monarchy at a check, and to raise enemies and enviers to it from all parts. The Portugueses have almost totally subsisted ever since up­on the provision of Corn which hath been sent them out of France; and in all the Debates which have happened either touching the Execution or the Interpretation of the Treatie, or the Purchase of Dunkirk, they have al­waies alledged unto us their Will in place of all other Reason, offering to give us the Law even in our own houses, and to forbid the reparation even of our own Chanells; so that upon the least difference wherein we did not yield unto them without re­ply [Page 28]whatever they asked, they have presently returned the bargain in our hand. If any Leagues were proposed for our Defence onely, instantly they thundred out against us menaces of War; which was a word so frequent­ly in the mouth of the Archbishop of Ambrun, that upon business of no va­lue, and between private persons, he instantly made a publick concernment. In fine, they have made use with so much exorbitancie of the strong In­clination which they observed in us for the preservation of Peace, that they have still imployed, upon the slightest occasions, the Scare-crow of War, thinking thereby to pull from us all that their humour made them desire.

Though our condition were very unfortunate to live in this continual Disquiet, to see the Sword alwaies hanging over our heads, and our Repose tied to so small a thread: yet the remembrance of our former Suffe­rings, and the apprehension of what might come hereafter, made us pre­ferre [Page 29]an uncertain and tottering Rest before those inevitable Confusions and Troubles which a Rupture would produce; and expect that our Mode­ration might touch their hearts, or that the Divine Providence would by some other means provide for our safety. But this Patience of ours hath served them for a Ladder where­by they have mounted to open In­fringings of the Peace, which cannot admit of any Interpretation or Exte­nuation: And I defie all the subtiltie of the Gallicane litigious Cavills, to palliate them with the least pretext or meanest appearance of Justice. 'Tis here that I do intreat the Rea­der to shew me no favour, but to de­vest himself of all kind of Compla­cencie which perhaps he may have for us, to retain all his Partialitie (if any he have) for our Enemies, and to judge of our Cause with the uttermost of Rigour.

The Abandoning of Portugal is one of the essential Foundations of the Peace; without that it could never [Page 30]have been treated of nor concluded: France doth declare it by these words, in the LX Article of the said Treatie: For as much as we have foreseen and apprehended that such an Engagement might be an Obstacle not to be sur­mounted in the conclusion of the Peace, and consequently reduce the Two Kings to a necessity of perpetuating the War. And a little beneath in the very same Article it goes on in these terms: In fine, in contemplation of the Peace, and seeing the absolute necessity where­in his most Christian Majestie finds himself, either to perpetuate the War by a Rupture of the present Treatie, which he perceives to be inevitable, in case he should have persisted to obtain in this Affair from his Catholick Majestie other Conditions then those which he had offered, &c.

'Tis clear in the second place by the same Article, that to oblige France to this Abandoning, the King of Spain refused from the most Christian King the Restitution of all those places and Dominions upon which the Arms of [Page 31] France had seised during the War. The terms are clear in the same Arti­cle: Offering, besides the places which are to be restored unto his Catholick Majestie by the present Treatie, to ren­der unto him also all the other Con­quests in general which his said Arms have made in this War, and intirely to restore the Prince of Conde; providing, and upon condition, that the Affairs of the Kingdome of Portugal should re­main in the state in which at present they are.

'Tis likewise out of controversie (every way) that this Abandoning of Portugal was covenanted and pro­mised by France, so authentically and in such clear and special terms, that it cannot be called in question, nor be made subject to any Interpretations contrary to the true sense and intenti­on of the Parties contracting. Here you have the terms: His said Majestie shall meddle no more with the said Af­fair, and doth promise and oblige himself upon his Honour, and in the Faith and the Word of a King, for himself and [Page 32]his Successors, not to give unto the afore­mentioned Kingdom of Portugal, nei­ther in general, nor to any person or persons of it in particular, of what dignity, estate or condition they way be, neither for the present nor hereafter, any Aid or Assistance, publick or se­cret, directly or indirectly, of Men, Arms, Ammunition, Victuals, Ships or Moneys, under any pretext, nor of any other thing that is or can be, by land nor by Sea, nor in any other far­shion: as likewise not to permit that any Leavies shall be made in any of his most Christian Majestie's Kingdoms and Estates, nor grant free passage to those which may come out of other Countries to the help of the aforesaid Realm of Portugal.

'Tis no less evident that they have failed in every point and every cir­cumstance of this Promise; That from the very beginning they secret­ly conveyed Troups into Portugal in several bodies; That at the self-same time when, upon the complaints of the Marquess de la Fuente, they sent [Page 33]publick Orders to the Governours of their Ports, that no Souldiers should be suffered to imbark for Portu­gal, they did not abstain from making them pass under-hand and by conni­vence; That a little while after the Marshall of Turenne publickly made Leavies for their assistance; and that the Marquess de la Fuente having re­presented that this was a direct Con­travention to the Treatie of Peace, they pay'd him with this cold and dis­dainfull Answer, that it was a par­ticular act of the Marshall of Tu­renne's, in which the Court of France had no hand; That they continued to provide them with Corn and all other sorts of Ammunition for War: And all this whilst the effect of the pretended Devolution was yet uncer­tain, and could no waies operate even among private persons, unless the Daughter did survive the Father, and before ever the French made any In­stance or Overture touching that Pre­tension.

We have in our hands the Letters [Page 34]intercepted, which make faith that the Court of France hath ever since the Peace fomented the Obstinacie of the Portugueses, that she hath hin­dred them from accepting the advan­tagious Conditions which were offe­red them, animating them by a hope of mightie Succours not onely for their own Defence, but also for car­rying an Offensive War into the very heart of Spain: We have many Let­ters of Monsieur de Lionne and the Archbishop of Ambrun to Monsieur de Shomberg, which prove the conti­nual Correspondence which was be­twixt them, for the direction of that War. No body is ignorant how the Duke of Beaufort the last year came with his whole Fleet upon the Coasts of Portugal, where he spent a part of the Summer, to the great prejudice of his Allies, onely to secure the passage of Victuals and Ammunition, where­of the Portugueses were in extreme want; and that at the same time when they were offering us their Mediati­on to work an Accommodation with [Page 35] Portugal. All the World knows that Monsieur Colbert privately made se­veral voiages thither, to encourage them, and contract a secret Alliance with them: That the Sieur Courtin, a little while after the close of the Pyrenean Treatie, went expressly into England, to move the King of Great Britain not to abandon the Portugue­ses. We intercepted in a French Bot­tom, which came from Portugal, the accompt of the Expences and the Suc­cours which France hath given with­out intermission to that Kingdome since the Conclusion of the Peace; whereby it is clear, amongst other things, that the French have alwaies entertained Troups at their own charge to uphold this War.

And for the Master-piece of all these unjust proceedings, France it self can­not deny, but that it hath lately con­cluded a League offensive with that Kingdome against all its Enemies. The principal Conditions of this League are: That they shall be the Friends of their Friends, and the Enemies of their [Page 36]Enemies, excepting England: That France shall furnish them with as many men as they need, to carry on an of­fensive War in Spain both by Sea and land; shall advance unto them by way of loan the half of their Pay; for the entertainment of Auxiliarie Troups; and that they shall furnish them every year, under the same title of Loan, with the sum of three hundred thou­sand Crowns: That all the Ports which they shall take in Spain, either upon the one or the other Sea, shall be put into the power of France: That they shall not treat, neither of Peace nor Truce, with­out common consent: That this League shall last for the space of ten years.

By the clauses above specified of the Pyrenean Treatie it may be seen, that the Abandoning of Portugal was both an essential and fundamental point of the Peace: That his Catho­lick Majestie preferred that Interest before all the Provinces, Estates, Do­minions and strong Holds which he quitted to France, and which he might have recovered, if he would have [Page 37]yielded in the Affair of Portugal. So that France doth not justly possess so many places as have been made over to her, but in so farre as she hath sa­tisfied the Condition in contemplati­on whereof they were given, and without which all would have been restored to us.

Whereby it is proved, that the pub­lick and secret Aids which France hath given to that Kingdome, and particularly the League offensive which she hath concluded with it, are not simple Contraventions or In­fringements, but an open Rupture of the Treatie of Peace, which restores his Catholick Majestie to the just right of pretending to and redemanding of whatever hath been accorded to France by virtue of this same Trea­tie, and all the Expence & Dammages which the continuation of this War, and the impediments which France hath brought to an Accommodation, have occasioned to the Crown of Spain. This Conclusion is founded upon three invincible Reasons.

The first is drawn from the Third Article of the Instrument of Peace, whereby it is agreed, That, to avoid the Differences which may afterwards happen between some Princes or Poten­tates, Allies of the said Kings, &c. if they cannot reconcile them by their Interposition, and that the said Allies shall therefore take Arms, every one of the said Kings may help his own Allie with his forces, without coming to any Rupture betwixt their Majesties by rea­son of such Assistance.

But in the end of the same Ar­ticle Portugal is expressly excepted. From whence may be deduced this evident Consequence, That if the Treatie doth allow the two Kings to assist their Allies, without break­ing of the Peace, Portugal excepted; it must follow that France cannot assist Portugal without Rupture, since that Kingdome is excepted by a clause restrictve of the general provision which is made for all the other Allies.

And in the close of the same Third Article all manner of Succours is ge­nerally [Page 39]prohibited to be given to the Subjects which might hereafter revolt against either of the said Kings, to limit the permission contained in the said Article of assisting the Allies without Rupture, onely to Lawfull Princes and Potentates, with an abso­lute exclusion of all Rebells.

The second is, That the Treatie is trulie broken, when by an Attempt of one of the Parties it is reduced to such terms in which it could never have been concluded nor commenced: Lege quod ab initio, F. de Reg. Jur. It is certain by the LX. Article above cited, and by the proper Declaration of France, That this Engagement with Portugal was an insuperable Obstacle to the Conclusion of Peace. It is then clearer then the day, that since the Peace could never have been made without the Abandoning of Portugal, it cannot subsist with those Succours nor with that League.

The third Reason is, That by the League offensive with Portugal they do declare themselves Enemies to the [Page 40]Enemies the one of the other, England onely excepted. It follows then ma­nifestly, that the Crown of Spain not being excepted, but on the contrarie this League being directly against it, his most Christian Majestie hath de­clared himself an open Enemie to Spain, by concluding it with this Con­dition.

Let us add to all this the Hostilitie already begun against those of Armen­tiers, the Detention of the Gover­nour of that place, the Massacre o [...] the Souldiers of the Garrison; the Conspiracy against the Town of Lux­emburg; the Contributions which they have demanded from those very Pro­vinces that are not comprised in this Pretension, to save them from fire and pillage; the Invasion of Charle­roy, which they fortifie; the sacking and burning of divers Villages, even in the Countrie of Liege; the pro­phanation of the Churches and Holy places; and the taking of Berges S. Wi­nox: And if all this cannot be called War, Rupture, and an Infringement [Page 41]of the Treatie of Peace, I see not what names henceforth can be given to things to express their nature.

After all this, the Latin Translator of this Libell sports himself wittilie with these majestical Hyperboles: Rex Invictissimus Galliarum, non pro­ferendi Imperii cupiditate, aut gloriâ Bellicae laudis, sed communi utilitate & Officii Religione compulsus, &c. And farther, Neque enim is est qui de in­ferenda finitimis cogitet injuria, aut in rem suam aliena convertere, aut alio­rum demum invadere velit Imperia: u­nam praeter caeter as Virtutes colit Justi­tiam; huic Coronam Sceptrúmque sub­mittit, &c. He believes that to per­suade his saying is sufficient, that his single words shall be able to give the lye to all the contrary effects, and that Christendome will give more credit to their Ears then to their Eyes and to their Experience.

ARTICLE III.

THE Injustice of the Rupture, and the infringing of the Peace by the Succours which France hath sent into the Kingdom of Portugal, and by the League newly concluded with them, is so manifest of it self and so clearly proved, that it were to have an ill opinion of the sufficiency and the Judgment of the Readers, and to abuse their leisure, to employ time or Reasons to render it more evident.

But to give our Enemies yet a lar­ger Carreer, and fight with them with less advantage; I am content for once to tie my hands, and shut my eyes to all our Rights, and grant them by a false supposition (which I reserve to be destroyed in the following Arti­cles) [Page 43]that their Pretensions are Just, and grounded on solid Foundations. I will also for this time afford them the libertie of deciding this Questi­on either by publick Right or Mu­nicipal Customes: Though in the se­quel I will make them see, that 'tis solely the Treatie of Peace which ought to be the Judge of this Pro­cess. And after I have granted them (of my own accord, and without preju­dice) all those advantages which may seem to give them the gain of the Cause, my onely aim in this Article is, to demonstrate That this Invasion and Rupture is unjust, contrarie to the Laws of Nations, and void of all those forms which are necessarily re­quired to make a War lawfull; That the Oath which France doth exact from the People without discussing the Cause is unjust, inconsistent with the Divine Laws, with the obligation of their Consciences, and drawing after it most pernicious Consequen­ces against all Princes, to render the Fidelity of their Subjects exposed to [Page 44]all Winds; and in conclusion, That the care which they take for their Defence is a precise and undispen­sable Duty, and cannot without Ca­lumnie be termed by the name either of Rebellion or Rupture.

If we consider this business accor­ding to publick Right and the Law of Nations, all States-men and Law­yers will agree, that to a just War the subsequent conditions are necessarie; Sovereign Authority, a just Title, a preceding Requisition of that Sa­tisfaction which is pretended, joy­ned to an obstinate and invincible Re­fusal by the contrarie partie, in such sort that the Dammage cannot be o­therwaies repaired but by Arms, and finally a legal Denunciation of War formally intimated by a solemn De­cree to the Partie.

Here it might be said, that the most Christian King doth not act in this oc­casion in the quality of a Sovereign, and ought not to be considered but as a particular Pretender in matter of Succession, in regard he grounds all [Page 45]his Right upon the Provincial Cu­stomes established between private persons by their own consents, with­out interposition of the supreme Au­thority so much as by a Decree of simple Approbation, and which by consequence cannot give him any right to make War. But I reserve this matter to be treated of more ful­lie in another place.

The just Title is wanting. Though we should suppose that his Right were well grounded, (which notwithstan­ding is controverted) the contrarie partie is in peaceable Possession, foun­ded upon the common Right of sove­reign successions, upon a Treatie of Peace, upon an authentick Renunci­ation, upon a Testament, and upon a continual Custome. In doubtfull cases the favour of the Laws is for the Possessor: It is the part of the Actor to prove and verfie his Right. The Judges themselves cannot pronounce sentence without duely hearing of the parties: Qui statuit aliquid parte in­auditâ alterâ, &c. It is much more [Page 46]unjust that the parties should doe Justice to themselves without form of Process. If it were permitted to Kings and Potentates to right them­selves instantly, and to seise by force of Arms whatsoever they believe they may have cause to pretend to, there would be no Possession secure in this world. If it be sufficient to have made a Book be composed by an Ad­vocate to justifie a Right, and to be able thereafter to prosecute it by force; if no Treaties nor Renuncia­tions nor Prescriptions are able to stop the current of it; there is no more security in the world for Eng­land, Germanie, Holland, Lorrain, Italie, Corsica, and Castile: all the Pre­parations are already framed for their Ruine, the Books are already com­posed, the Cause is judged in the Tri­bunal of France, the right of War is established, the Arms are ready, there wants nothing but an Occasion to take possession of their Estates by a Right proved by the same forms, and adjudg­ed by the same Authority which hath [Page 47]determined their Pretensions against us. Cassan, Aubery, Arroyus, Peter du Puy, and the nameless Author of the Treatie of the Interests and Max­imes of Princes, with an infinitie of other turbulent spirits wherewith France doth abound, are as competent Arbiters in this point, as the Writer who forged the Rights of the Queen. France, by the same moderation which it uses towards us, void of Am­bition to extend its Limits, of the desire of Glorie, of the intention of Rupture, but onely for publick good, & Officii Religione impulsa, may drive them out of their Possessions, to esta­blish her own, and yet they should not be able with reason to complain of a­ny Injustice, if they should suffer them freely to introduce this dangerous Prejudication. If the Propositions of these Scribblers be true, That all that hath been acquired by the Kings of France hath been united to the Crown; Arroy, fol. 90. That the Authority of Charlemagne which was over Germa­nie, Italy and spain, ought to be in [Page 48] Lewis the Just, and consequently in Lewis the XIV ^th; Arroy, fol. 86: If this Right be unalienable by virtue of the Salique Law, which they would have pass for Divine; idem, fol. 81: In fine, if the greatest part of Germa­nie be the Patrimonie of the Kings of France; Auber. Lib. 2. pag. 93. Can a juster Title be required to take pos­session of it? And will he not have much better ground to redemand his own Patrimonie, then he believes to have now to pretend to a foreign Succession?

It is not enough to have a legal Pre­text and Sovereign Authority to ren­der a War just; there must be some fault, and an invincible obstinacie on the other side: Ʋt seilicet illi qui im­pugnantur propter aliquam culpam im­pugnationem mereansur; D. Thom. 22. Quaest. 40. Art. I. which he establishes upon the Doctrine of S. Augustine in lib. 83. super Josue Quaest. 10. Si gens vel civitas plecl enda est, quae vel vindi­care neglexerit quod à suis improbè fa­ctum est, vel redde re quod per injuriam [Page 49]ablatum est. Whence it may be infer­red, that the Injury must needs be very great to deserve so violent a Reparation, and that it must be irre­parable by any other way, that it may be lawfull to come to the last remedy. All War that is not abso­lutely necessary is against the Law of God and Nature, as the same S. Tho­mas doth explicate it in the same place, and is not permitted but as the last means, when all others are found to be ineffectual. Extrema primo ne­mo tentavit loco. To judge from these grounds of the Justice of this War, we must examine by parcells the procee­ding which France hath held in seek­ing Satisfaction, and it will clearly be seen, that she hath carefully shunned the true means of obtaining it by lawfull courses; that she hath provo­ked us with divers Injuries, as I shew­ed before; that not onely her first end and sole design hath been to re­new the War, but also to surprize us by a false pretext of Peace and Friendship.

The Conduct which Decency and the Law of Nations seemed to pre­scribe to them in this occasion was, to advertise the Queen presently, af­ter the death of the late King, by an authentick and legal way, (accord­ing to the Custome amongst Mo­narchs) as by some Envoy, or by their ordinary Embassador at the Court of Spain, to acquaint her with the subject of their Pretensions, and to shew The QUEEN-Regent of Spain. her the reasons and instru­ctions of them, to require Satisfa­ction, or else to propose ways of A­greement: in case of refusal, to declare solemnly, that they should be forced to take Arms, if they could obtain nothing by Reason and fair means. After all this it became them, according to all manner of Law, to have had recourse to the immediate Lord of those Fiefs to which they pretended, either for submitting themselves to his Arbi­tration, or at least for seeking his In­terposition, and laying open their Rights before him.

But far from all this they began with Leagues, with Aids sent to the Portugueses, with secret Practices a­mongst our People, and a thousand unworthy Intrigues, forerunners and evident discoveries of a formed De­sign of War; and in place of all in­timation or seeking after amicable ways, they have contented them­selves with a simple familiar Discourse which passed in Conversation be­tween the Queen of France and the Marquess de la Fuente.

Here it is wherein evidently doth appear a proceeding full of Artifice, which cannot tend but to two ends; the one, to have in time and place a fitting occasion to bring War upon us, and in some kinde to justifie by that Demand the Violence which they did resolve to found upon our Re­fusal; the other, That they might be able to surprise us, and make us neg­lect the care of our Defence and Safetie, and might avoid those Ob­stacles which by the good offices of the neighbouring Princes, and inter­essed [Page 52]in the Cause, they foresaw would certainly have been employed from all parts to prevent a War, from which they would not be di­verted by any manner of Agreement. They feared that if they had obser­ved all the Formalities which I have above related, they should have gi­ven us an Alarm out of season, and have awakened us out of that pro­found Sleep into which our confi­dence in their Treaties and words had lulled us: They judged reason­ably enough, that all the neighbour-States would sufficiently apprehend the Consequences of this War, to make use or all their care and power to terminate this Difference by an Accommodation: They saw that an express Declaration of their Design might open the eyes of all the World; and that, on the other part, a sudden Invasion without any preceding For­malitie would bring an universal blame upon them, and convict them of manifest Injustice: They have chosen this weak middle betwixt [Page 53]those two extremes, to throw in the aire an empty Proposition without matter and without form, to the end they might take the advantage of our Answer when their business should suffer it; knowing very well, that upon such a weak ground we were not able to make any Reply to their full satisfaction: They be­lieved that by this cunning they should have wherewithal to convince us without giving us the Alarm, and wherewith to prove their Moderati­on without being obliged to desist from their Violences. But God is not so cheated, nor men of sound un­derstanding: these are Spiders webs, which are good for nothing but to catch flies. Yet of those things do they make the Frontispice of their work and the Foundation of their Build­ing: they do move and bestir them­selves upon them with that life which is so natural unto them, imagining that having this Shield, we shall not carry in a stroak upon them which they shall not be able to ward.

To judge well of the matter, we must enter upon the truth of the Fact, which the Author of these Li­bells falsifies in all its circumstances. The very first words of his Preface contain a palpable Untruth; which is, A little after the deceased Queen-Mother had paid to the Memorie of the Catholick King, her Brother, all the Duties and all the Civilities which are usual in such occasions, she sent to call the Marquess de la Fuente, &c.

It is certain by the Relation of the Marquess de la Fuente, and by the date of his Letters written to Spain, that the Queen-Mother held this discourse with him on the 13. of August; and all the world knows that the King died not till the 17. of the Month following.

'Tis a thing of bad presage to the success of this Writing, that the first words of the Preface should begin with so notable a Lie, which gives just cause to believe that the Con­clusion of the same Work, which promises to our people a Haven of [Page 55]Benedictions, if they will come under their power, shall be of the same na­ture, and that the Epilogue will cor­respond to the Exordium, by the just Conformitie which such a great O­ratour, without doubt, ought to have observed in all the parts of a Piece which he began to meditate from the very day of the Peace; since in ef­fect he is not ashamed to avow, that they did not consent to the Act of Renunciation but with a formed de­sign to break it.

Thus all that he doth alledgin conse­quence of that Commission which the Queen-Mother gave to the Marquess de la Fuente to write to the Queen of Spain on this subject, is but a weav­ing of the same Untruth, since no bo­dy can be ignorant that the Queen had no hand in Business whilst the King lived, and that she would by no means have intruded in a matter whereof she had no manner of knowledge, and which was not then within the extent of her Sphere.

That he may not give himself the [Page 56]lie, he continues still to accumulate Lies upon Lies. The Discourse which the Queen-Mother held with the Marquess was altogether of an­other strain then that which he ci­teth. This wise Princess, who consi­dered the Peace as her own work, and who knew the unquietness of the French humor, and the desire of Glo­ry which boiled in the heart of her Son, thought fit to declare confi­dently her thoughts of it to the Mar­quess de la Fuente, that they might search joyntly for some means to stay his Impetuositie. She ingenuously represented unto him the trouble which the bad Suggestions which were infused into her Son upon vain pretensions did occasion to her, and she intreated him to advertise the King her Brother thereof, that he might make such Reflections thereon as were necessary; that she would wish, that after he had given so much for the Peace, he would yet yield in something to preserve it, and stop the mouths of all such as carried on [Page 57]the King her Son to violent Reso­lutions; that for her part she would inculcate all the Moderation that she did wish in him. Thus did that Royal and prudent Princess speak, and wit­nessed sufficiently by her discourse that she had in horrour a Pretension which she did not sustain but by the fear of a greater evil. The Mar­quess de la Fuente did never charge himself with this Commission, (con­trary to what this Author doth re­late with the same fidelitie that he hath done all the rest) for it is clear by the Relation which he sent into spain upon this subject; and all those who are but a very little versed in the management of publick affairs will judge that he could not doe it, with­out he had been ignorant of the Du­ty of an Embassadour; (which cannot be presumed of a Minister of so long experience, and who deserves the general applause by his good beha­viour in so many great Embassages.) He knew too well that, being the Ca­tholick King's Minister, he might not [Page 58]act as solicitor for the most Christi­an King; that he could not enter in­to a Negotiation upon a matter of this importance without an express Order; that the sole end of his Em­bassage was, to cause the Treatie of Peace to be observed in every point, and not to overthrow the Foundati­ons of it; and that the very discourse of the Queen was not sufficiently au­thorized, to frame an authentick Pro­position to his Master, or to open a Negotiation. He satisfied himself then by remonstrating to the Queen-Mother, in the freedome of the same familiar discourse, the Reasons which ought to divert the most Christian King from such thoughts, and did be­seech her to employ her endeavours to infuse into him juster & more mo­derate ones. Notwithstanding, as Em­bassadors are bound to give their Ma­sters an account even of the smallest circumstances of things, he could not omit to inform the Court of Spain of all this little Intrigue by way of Rela­tion, and not by way of Proposition, [Page 59]and to intreat them to instruct him how he should behave himself, in case that they should make more le­gall Instances unto him upon this subject. The King was yet alive when this Letter came; but falling sick at the same time of the disease whereof he died, the Confusion Wherein things were then afforded not leisure to make much reflexion upon a Narration which had nothing of authentick in it: and they were content onely to give him order, that if the Queen-Mother should again de­bate upon that business, he should in­form her fully touching the Rights of his Majestie, and let her know, that the Queen being neither Arbitress nor Mistress of those Affairs, she could not of her self dispose of them du­ring her Regencie.

To this Answer no new Instance was made, no Proposition, no Com­plaint. Monsieur de Bellefond was sent to Madrid to complement the Queen, without making the least o­verture unto her touching this Pre­tension. [Page 60]His most Christian Ma­jestie hath not ceased ever since that time to confirm unto the Marquess de la Fuente the assurances of a firm resolution to continue the Peace, without ever so much as once na­ming to him the name of this pre­tended Devolution. The Archbi­shop of Ambrun (as I have already said) hath ever since that time acted the part of a busie man, by proposing of Leagues and Mediations, and la­boured to make those be looked up­on as turbulent and seditious spirits who would have framed the least scruple against the assurances which he gave. And in these last months passed the Marquess de la Fuente ta­king leave of the King to return in­to Spain, he positively charged him to engage his Faith and Word to the Queen, that he would keep with her and her Kingdoms a constant Amitie. Which Promise was not restricted by any Condition; it was full, free, and universal, without any inter­mixture of Complaints or Pretensi­ons, [Page 61]which might have given occa­sion to second thoughts.

After all these things the Court of Spain had just cause to believe that the apprehensions of the Queen-Mo­ther were but panick fears; that an excess of her love of Peace gave her vain suspicions of things more remote; or that her Tears, her Reasons, and the Supplications which she tendered to the King her son when she gave him her last Embraces, had mollified his heart; or that the prudent An­swer of our Queen had convinced him; or, at the worst, that he would have the patience to stay till our young Monarch were in a condition to understand and dispose of his Af­fairs, that they might agree as Bro­thers-in-Law, Kindred, and Friends, upon a Difference which could not so easily nor so securely be ended du­ring his Minoritie.

From this sincere and true Narra­tion all men who are not preposses­sed may easily judge, that the dis­course which the Queen held with [Page 62]the Marquess de la Fuente cannot be taken for a Denunciation, nor so much as for a Proposition, or a De­mand, or a simple Overture of Ne­gotiation. The reasons whereof are beyond replie.

• First, Because she did it not in the name of the King, and did not avow so much as that he had any knowledge thereof; and that she had no more any hand in the Re­gencie, nor in the Administration of publick Affairs. But so it is, that a Denunciation cannot be either legal or authentick, unless it doth proceed from a Sovereign Authority. Grotius lib. 2. de Jure Belli.
• Secondly, It was spoken meerly by way of dis­course, and advertisement, by an an­ticipated foresight of the ensuing dangers, and not as a formal Propo­sition duly authorized.
• Thirdly, That the Case was not yet in being, where­in the pretended Devolution could have any effect.
• Fourthly, That it was not accompanied with any In­structions, nor specification of Rea­sons, of Titles, and not so much as [Page 63]with the names of the Provinces to which they pretended; which was absolutely necessary, to the end a Categorical Answer might have been given, the Case being understood.
• Fifthly, That it was addressed to a Minister no ways commissionated to receive it, nor to enter into the mat­ter of so new a business, so surprising, and of so great importance.
• Sixth­ly, That the most judicious Answer of the Queen did not stop the course of Negotiation, but on the contrary afforded them conveniencie to pro­pose their Reasons, to let her see, that by yielding up of those Provin­ces which were devolved unto them by so clear a Right as they would perswade it to be, she did not alie­nate any thing of her Son's Estate, but performed an act of Justice, which would shelter his Minoritie from a dangerous War.

But they were cau­tious enough not to enter into the particulars of the business, they shun­ned all clearings, they would not urge that which they feared they [Page 64]should obtain; and to make way for their more vast Pretensions by the Right of Arms, it was requisite to open the passage to them by that of the Devolution. Consequently all those pretty Reasons which are now alledged to make the Queen's Answer be esteemed an absolute Re­fusal, and an invincible Obstacle to all Accommodation, behoved to be carefully reserved, that they might not be presented to the world but onely by the mouth of Mortar-pieces and Cannons.

Meanwhile it is left to the judg­ment of the Readers, whether the Queen could have given a more equi­table, moderate and prudent Answer. Hardly were her first Tears dried up which the death of her dear Husband brought so abundantly from her eyes, scarcely had she taken the most sum­marie informations of the Affairs of the Court and Kingdom; when, in­stead of the Assistance which she ought to have expected from a Prince so nearly allied, she saw her [Page 65]self entertained in place of the first Complements by a Proposition with­out form, which was not addressed unto her, which was introduced by an indirect and unwarranted way, by which they required from her Provinces without naming them, without specifying the Causes, or backing them with other Reasons then those of Buying the Conserva­tion of a Peace, whereof the pur­chase had been sold unto us at so high a rate. What other Answer could she make, but that she was not in­formed of that Right, that she was but a bare Regent, and had no pow­er to alienate any of her Son's Do­minions?

Was it not incumbent to France to let her see the Grounds of this Pre­tension, and that she should not alie­nate any thing by restoring to every one his own? Do they think that this was a Process which could sum­marily be decided by Bill and An­swer? and that upon their single as­sertion denuded of all manner of Evi­dences [Page 66]she would out of a frolick throw at their faces Eight of the most flourishing and rich Provinces of the ancient Patrimonie of her Familie? Meanwhile upon this they raise the Hue and cry, they take her Reasons for Refusalls, they do not reply to them but by Arms, and let her not know what it is they pretend, untill they find themselves in a posture able to snatch it away by force. It is farther to be observed here, that this Answer was not addressed to the Queen, nor given in form of a Re­solution, but onely in the simple terms of an Instruction to the Marquesse de la Fuente, in order to his particular Direction, that he might try by his prudence gently to divert by a Rea­son so solid the mind of the most Christian King from a thought so little suiting with his own Glory.

For the last condition of a just War, all Lawyers do require a so­lemn Declaration by a publick De­cree legally intimated to the parties. It is an essential condition which the [Page 67]Law of Nations doth prescribe, and all Wars destitute of this Formalitie are Robberies, except the urging ne­cessity of repelling force by force shall dispense with us therein by the Law of Nature.

It seems that France, not to forget any thing which might render her Attempt more unjust and scandalous, would needs omit this Formalitie, to make her acting the more unseemly, by publishing in her Declarations, that she had no design to break the Peace, at the same time when she did make us feel all the effects of a War. From whence it must be concluded, that in regard this Answer cannot be in­terpreted a Refusal, since there was no form in the Demand, and at the most cannot pass but for a simple ex­ception of Right, which the Queen did object to defend that of her Son, there cannot be in it any title for a just War; seeing the Laws do not permit even bare Reprisals, but when the partie required doth shut up all the ways by which Justice can [Page 68]be obtained. L. Ʋlp. ff. de cond. in­deb. And since they have been an­swered by a juridick Reason, it was the part of the most Christian King to overturn it by a stronger, before he come to extremities.

This Denunciation is not onely ne­cessary and requisite by the Law of Nations, but also is expresly stipula­ted in the XXVI. Article of the Treatie of Peace, wherein it is a­greed, That if any Rupture shall af­terwards happen betwixt the two Crowns, (which God forbid) there shall always six months time he given on the one part as well as the other, to retire and transport their goods and persons, &c. Which of absolute ne­cessity requires a legal and prece­dent Denunciation, without which they can never be able to know when it shall be time to retire them­selves, and shall finde themselves in­volved in an unforeseen War.

It is not sufficient to be indued with Sovereign Authority, that he may have right to make War in all ca­ses; [Page 69]but the action he doth intend to pursue by Arms must be of such qua­lity that he may act in it as Sovereign, that is, that he act on the behalf of some publick Interest which concerns the Sovereigntie; and in this case his power is to be regulated by the nature of the Sovereigntie, or of that Right whereby he acts: so that if in this action he depends upon the Civil Laws, and be subject to a superiour power, what Sovereigntie soever he does otherwise possess, he hath not the right of making War, but ought to have recourse to those Tribunals before which the Cause is to be deci­ded, and is not in this respect conside­red but as a private person. Grotius lib. 2. cap. II. de Jure Belli. Experi­ence confirms this every day. It is for this that the Fiscal is instituted, principally to defend and pursue the particular Actions of Kings by the waies and forms of Justice: and this Custome would be unprofitable, if Princes were both Judges and Execu­tors of their own Causes. They them­selves [Page 70]plead every day against their own Subjects, they submit them­selves to the Decrees of their Tribu­nals; and if they do observe this Ju­stice toward their Inferiours, they are much more obliged to keep it toward the direct Lord of those Fiefs which they do claim. The reason is, because that War is of the Law of Nations, and such like Actions are of the Civil Law; That the Magistrates and Tri­bunals are established to hinder parti­cular Violences, which otherwise would reign in the World, if it were indifferently permitted to seek satis­faction by Arms: From whence it follows, that when the way of Civil Law is open, and that he who intends the Action is subordinate in this parti­cular case to a Superiour Authority, he hath not the right of Arms in his pow­er, and cannot of himself have re­course to the Right of Nations, nor act as a Soveraign, in regard he is none in this case.

Now in this Action the most Chri­an King (as the Libell it self doth [Page 71]declare) doth act in no other quali­tie but as prosecuting the Actions of the Queen his Wife, and conse­quently cannot have in that any o­ther Right or qualitie then that which is competent to her self. Therefore in this qualitie either he doth pro­ceed as actual Duke of Brabant, and Prince of the other Provinces, which he claims by a real Action, as Lord of those Lands by virtue of a devolved Succession; or onely as having a Right to claim them. In both cases it is certain that he is not Possessour, that his Right is not without con­troversie, that another is in the peace­able possession, founded upon very plausible Titles, and that if even the most Christian King had by violence thrust him out of his possession, the Judges could not pronounce any thing in the principal matter, unless the bu­siness were restored to its first con­dition. This is a Principle in Law which no Lawyer will call in question.

It is likewise most certain, that in the qualitie of Duke of Brabant he [Page 72]cannot claim his Right by Arms a­gainst a peaceable and ancient Pos­sessour, seeing he depends upon a Su­periour Power, to whose Judgement he is bound to submit: That his Acti­on being a Right undecided and in controversie, he cannot take possessi­on without a decisive Sentence, nor consequently establish fully his Juris­diction in that Dutchie without doing Homage to the direct Lord, and ta­king the Investiture from him.

France it self will not deny that the Dutchie of Brabant, and the most part of the other Provinces which she pretends to, are Fiefs depending upon the Empire, which she her self doth seem of her own accord to ac­knowledge very clearly by these words, which she hath inserted in the end of her Preface; That his inten­tion is to possess the Estates which are fallen to the Queen in the Low-Coun­tries, by the same Title by which the Catholick King hath possessed them in reference to the Empire. She declares it yet more openly in the same Li­bells, [Page 73]wherein for a principal founda­tion of the pretended Devolution of the Sovereigntie of Brabant, she al­ledges the Decree of the Emperour Henry, in favour of Prince Henry, a­gainst his Father. Though I shall an­swer this Objection in its proper place, for the present it's sufficient I draw this advantage from it, that she doth acknowledge the Emperour for the supreme and lawfull Judge of the Differences which may arise for the Sovereigntie of Brabant, and even in this particular case, which they draw by the hair to that of the Devolution; and that the said Emperour did prohi­bit the Duke to undertake any thing in it to the prejudice of his Children. Where­by the Author of this Writing pre­tends fully to establish the Emperour's Right of Judging, pronouncing, and interdicting, which are all effects of a Supreme Authority. And though in that there may be many exceptions and limitations, without farther exa­mining the matter, we will be content in this place to make use of their own [Page 74]Allegations', to fight them with their own Weapons; so much the rather, because the Privileges granted to the Dutchies of Brabant, Limbourg, and the other Provinces of the Netherlands, by the Emperour Charles the IV, Si­gismond, Maximilian, and others, evi­dently confirm that a part of Brabant and of the other Provinces hold of the Empire: besides, it is set down in ex­press terms, that the said Provinces are Fiefs of the Empire. No person is igno­rant that they compose one The Em­pire is di­vided into Circles. Circle of it, and consequently that for what concerns publick Right they are sub­ject to the Laws, reserving neverthe­less their particular Privileges and Ju­risdiction.

It is out of controversie that all the Processes and Differences which arise touching Successions, Investitures, Rights, and Pretensions upon Fiefs of the Empire, depend of the Supreme Jurisdiction of the direct Lord, and that no Prince of this great Body can seise the Estates of another by way of fact, what just Pretension soever [Page 75]he may have, without contravening the Order and Imperial Constitutions, and obliging all the other Princes to take Arms against the Aggressour. Ex­perience shews us this in an infinitie of Processes of this nature, which are still depending before their lawfull Tribunals. As also no body will deny but that the Treaties of Munster and Osnabrug are made use of at this day as a Fundamental Law to regulate the Affairs of the Empire: And this is expressly declared, Inst. Pacis Germa­no-Gall. §. Pro majori; Sit haec Trans­actio perpetua Lex & pragmatica Im­perit Sanctio. And France is so much the more obliged to conform it self to this Rule, because it hath reaped most abundantly the chiefest Fruits of this Peace. It is also unquestio­nable, that by the same Treatie the Circle of Burgundie is expressly inclu­ded in these words, §. Ʋt eò sincerior; Circulus quidem Burgundicus sit mane­átque Membrum Imperii post Controver­sias inter Galliam Hispaniámque sopi­tas hâc Pacificatione comprehensus: and [Page 76]by consequence it ought to enjoy all Rights, Immunities and Prerogatives of the Circles of the Empire specifi­ed in the §. Ʋt autem, and in the fol­lowing, and of the general and reci­procal Warrantie expressed in the same Instrument of Peace. In the §. Tam univers. are infringed and an­nulled all attempts and waies of fact formerly committed, or which shall be commenced for the future, quae nullo praecedente legitimo Juris & Executio­nis ordine fieri attentaríve poterunt. And in the §. Ʋt autem provisum sit, it is provided that, to avoid new Con­troversies, all the Princes of the Em­pire shall remain in the peaceable pos­session and enjoyment of their Rights and Prerogatives, ut à nullo unquam sub quocunque praetextu de facto turbari possint.

In the §. Pax verò conclusa, it is ex­pressly ordained against all waies of Fact; Et si quid eorum à quocunque vi­olari contigerit, laesus laedentem inpri­mis à via Facti dehortetur, causâ ipsâ vel amicabili Compositioni, vel Juris [Page 77]disceptationi submissâ. And in the §. following, the term of three years is appointed to terminate the Difference either by the one or the other way: And in case that without having re­course to or putting in practice the one or the other of these means, any one before the said term of three years do undertake any thing by the way of Arms; teneantur omnes & singuli hu­jus Transactionis consortes, junctis cum parte laesa (that is to say, he who is attaqued by force) consiliis viri­búsque, Arma sumere ad repellendam Injuriam à passo moniti, quòd nec Ami­citiae nec Juris viae locum invenerit. By which it is clear, that it is not per­mitted to any to take up Arms un­till he hath tried for the space of three years the means of Accommo­dation, or of Justice. The words that follow in the same §. do yet more clearly explain it: Et nulli omnino Sta­tuum Imperii liceat Jus suum vi vel armis persequi; sed si quid Controver­siae sive jam exortum sit, sive posthac inciderit, unusquisque jure experiatur: [Page 78]secùs faciens reus sit fractae Pacis.

Either then the most Christian King will act in this Cause in the name of the Queen his Consort as she is a Princess of the Empire, or as a private person by virtue of the Muni­cipal Laws of Brabant. In the first case he ought as a Vassal to have re­course to the Sovereign Tribunal where the Controversies about the Ducal Succession are tried: In the second case he ought to submit him­self to the Judgement of the Feo­dal Court, which is the onely Inter­preter of the Customes of the Coun­trie, and the supreme Judge of the particular Actions touching Fiefs.

As to the Declaration which they do make in the same Writing, that they'l possess these new Conquests under the same Laws and Dependen­ces on the Empire whereby our Kings have held them; It is a Protestation contrary to the Act, and their pro­ceeding doth destroy it absolutely. How can it be hoped that they I sub­ject themselves to the Laws of the [Page 79]Empire in the fruition of those E­states, when they do violate them all by the Invading of this Circle? All the Pretensions of the Princes of the Empire one against another have al­waies been left to the Supreme Judica­tory; they have ever been begun by some Process: And those who, wea­ried with their tediousness, have la­boured to right themselves, have still found opposition, and been discoun­tenanced by the Which is the Impe­rial Diet. General Diet. E­ven they who have carried Arms a­gainst the Empire have never been condemned, nor exposed to the Im­perial Outlawrie, but according to the forms of Justice. This course is so re­gulated and so confirmed by Custom, that amongst so many Differences of which Germanie is full, and in the numberless multitude of noble Fami­lies which compose this great Body, not so much as one is to be seen which hath strayed from this High­way without punishment. France alone, which is yet but upon the Threshold of the Door, will already [Page 80]command within the House, and with­out any form of Process erects to herself a Tribunal of her Throne, Advocates of her Army, and Judges of her own Power. What can the Empire expect from her Submission when she is Mistress, if she make such use of it when she is but a Pretender? And how should one promise to him­self the Fealtie of Vassalage from those who commit an act of Felony to acquire it, and will not enter but by the oppression of Laws and Justice?

From all these Principles, which are clearer then the day, this Con­clusion may be drawn, That the Oath and the Acknowledgement which they exact from his Catholick Ma­jestie's Subjects is a Seditious practice, contrary to the Right of Nations, which shocks both their Duty and their Consciences, and which no bo­dy can take without making them­selves guilty of a Crime against God, of Rebellion against their Prince, and of Baseness as to themselves; though we should continue still in the [Page 81]supposition that the Pretension of the most Christian King were equitable. I shall prove this by five convincing Reasons.

• The first is, That they are at pre­sent tied to the King of Spain by a solemn Oath with which they cannot dispense of themselves.
• The second is, That this Oath is valid and lawfull, being founded upon the authentick Titles of the perpetual order of the Succession of their Dutchie, upon the Imperial Investi­ture, upon the Queen's Renunciation, upon the Pyrenean Treatie, and upon the Testament of the late King.
• The third is, That it hath been tendred since the Case of the pre­tended Devolution happened, with­out any Opposition made by the most Christian King, or Protestation to the contrary, which might have put them into the least doubt of the validity of their Oath: And in such like pub­lick Acts which are of consequence the ordinary Rule is, Qui tacet, con­sentit.
• [Page 82]The fourth is, Because there is neither previous Judgment nor Sen­tence to the contrary, which can dis­pense with them in their natural Ob­ligation.
• The fifth is, That what Pretension soever may be moved against a Prince that is in actual possession, the Sub­jects are not Judges in this Cause, but are bound to keep their Fidelity to him to whom they have sworn it, either till he himself dispense with them, or that some superiour Autho­rity decide the matter: otherwise it would be a Levity of most pernicious example for all the Subjects of other Princes, if upon the simple Assertion of the first comer they might have liberty to renounce their Faith, and blindly to give themselves to whoever should challenge them to be his. It would likewise be an intolerable Ar­rogance in Subjects, which would overthrow all the Order of Politie and of humane Society, if they would attribute to themselves the power of Judging Causes of Sovereignties: that [Page 83]same would not be endured even in private Successions, in which the Sub­jects ought to remain under the Obe­dience of their Masters, so long as they are not exempted from it by a superiour Decree. We could, accor­ding to this wicked Maxime, by a more specious Right solicit the Sub­jects of the Dutchies of Burgundy and Bretanny, and also, with a farr juster Title, all those of the Places resigned by the last Peace, which France hath so frankly and lightly broken, to re­nounce the Duty which they have promised to him who possesses them. We should be grounded in our Pre­tension to the Dutchie of Burgundie on a solemn Treatie of Peace, and for that of Bretanny, on the Right of a lawfull Succession: And I am certain that if the decision of this Process were referred to the people, they would not hesitate to declare in our favour.

'Tis a Question which the Great and Supreme Arbiter of the World, our SAVIOUR, decided in the [Page 84]same case, upon the captious pro­positions of the Pharisees: Though the Right of the Romans, and par­ticularly Caesar's, was subject to ma­ny Exceptions, and that his Posses­sion was not by much so well foun­ded as ours is, yet he ordained not­withstanding that the Tribute should be pay'd to the present Possessour; to teach the people, that it did not belong to them to judge of the Right, but to yield Obedience to the party who was in actuall fruition of the Sovereignty, who bore the marks and the Character, and exercised the Jurisdiction thereto belonging.

ARTICLE IV.

HAving made known the Injustice of the Proceeding; it remains to make evident that of the Preten­sion. I shall conform my self upon this Subject to the Method which they have observed in their Libells, that I may not lose sight of them. Be­fore they do attaque the Strength of the place, they have employed all their force to take the Outworks: and seeing that the Renunciation of the Queen of France was a Barricado which hindred them in their appro­ches unto it, they have employed [Page 86]their most powerfull Engines to blow it up; without considering that by destroying that Work, they over­throw the Foundation of a Trea­tie which hath given them such great Advantages over our Monarchie, and deprive themselves of all the Rights to those Provinces which by this Peace they had acquired, so that they can neither possess nor retain them henceforwards without manifest In­justice, unless they acknowledge the Principles on which their Possession was established; their own Mine doth fall back upon themselves. If the Renunciation should be null, the Pyrenean Treatie must be so too; eve­ry thing must be brought back to it's primitive Integritie: They can no longer make use of the Instrument of Peace, to secure and render their Conquests lawfull; they repossess us again in all our Rights; and all the Fruits which they have gathered from that Tree, of which they endea­vour to cut up the Root, are but so many goods ill purchased.

Here it must be acknowledged that the Flattery of those Writers is very inconsiderate, and that they have applied themselves more to a petty litigious Interest then to the Glory of their Prince; they cannot contro­vert upon the Queen's Renunciation without calling the sincere Faith of their King into question. The Mar­riage was concluded upon the ground of the Renunciation, and the Peace upon that of the Marriage: all these things have an inseparable con­nexion. His most Christian Majestie was assisted in this occasion by the most expert and the ablest Ministers of his Kingdom, who could not be ignorant whether the Infanta had power to renounce lawfully or not: This Work was premeditated, de­bated and concerted amongst the Parties by a long Negotiation, which gave occasion to all the reflexions upon Law and Policie which the clearest Wits could frame in so im­portant a matter. If then they dis­covered that Truth which since they [Page 88]would make pass for so clear and pal­pable, That this Act of Renunciation could not be valid, either they must confess that they have been the au­thors of a signal Cheat, by Treating upon this Foundation, approving it, accepting it, and inserting it into the Treatie of Peace by an express Ar­ticle, promising to cause it to be Re­gistred amongst the Acts of the Par­liament of Paris, and authorizing it by their Oath; or else they must ac­cuse themselves of Ignorance, in not having understood before they con­cluded the business those Nullities which at present do appear so evi­dent unto them. To what condition go they to reduce the Affairs of the World, if the solemn Treaties made betwixt such Great Monarchs, for the universal Benefit of Christendom, the Repose of the People, and the Securitie of the neighbouring States, are found exposed to mental Reser­vations, and all the Subtilties of the Barr? And if ordinary Merchants, onely for the good of their Com­merce, [Page 89]have the liberty to form to themselves a Right, and particular style, which shelters them from the Intrigues of the Palace; would it be convenient that Sovereign Princes in publick Treaties, which do con­cern the publick good, should not be exempt from that subjection? If this pernicious Maxime be once esta­blished, of reducing the publick Right to the condition of private Right, we shall quickly see as many Wars arise amongst Princes as there be Suits of Law amongst Citizens.

To discourse to the bottom upon this matter, we must deduce some circumstances of Fact, which are most necessary to give it a full clearing.

When France, rather wearied then satiated with War, did resolve to listen to the Propositions of the Peace, and that their domestick Dis­orders did oblige them to clear themselves from foreign business, that they might reform those Abuses which undermined them at home, the wisest Statesmen both of the one and [Page 90]the other side did conceive by a pru­dent foresight, that nothing could be solidly and durably treated of, This is proved by the Instru­ment of Peace, and the Article of Renun­ciation. if the Root of the Mischief were not pulled up, and if some effectual means were not found out, not onely to stifle all the Differences past, and prevent those to come, but also to extinguish, by a real and undissolvible Union, the ancient Emulation of the two Crowns, and the natural Antipathy of the two Nations: that all other Dressings could never reach the bottom of the Wound, and would prove but Leni­tives to mitigate the pain for a time, without taking away the Cause of the Evil. Having long searched for Expedients answerable to the im­portance of the Design, none was thought proper but that of a Mar­riage between the most Christian King and the most Serene Infanta Ma­ry Teresa, to joyn the Seal of the Sa­crament to that of the Treaties, Love to Concord, and Alliance to Recon­ciliation.

Spain, which desired the Peace, but [Page 91]yet withall wished to have it firm and inviolable, judged, with reason, that this was the onely mean to remedy all those Mischiefs which the conti­nual Opposition of those two great Poles of Christendom had occasioned for the space of so many years: but in this she found an essential Diffi­cultie proceeding from the Contra­rietie of the Fundamental Laws of the one and the other Realm in two principal Points. Though those of Spain do always prefer Males in the Succession, they do notwithstanding leave the Gate open for Daughters, failing the Heirs Male in the same Line. Those of France, quite con­trary, do perpetually exclude the Fe­males, and to their prejudice make the Right of Succession pass even to Strangers.

The second is, That one of the most ancient Constitutions of the Mo­narchie of Spain, on which they lay all the foundation of their Govern­ment, is, that their Kingdom is not Alienable, that they live always un­der [Page 92]their own peculiar Kings, and that their Crown can neither be an­nexed nor incorporated with any other. That of France, on the con­trary, doth arrogate unto it self this Right, (as it appears by their Wri­ters and Lawyers) That whatsoever is possessed or acquired by the Kings of France by any kind of Title doth fall to the Crown, is the proper Do­minion of it, and can never more be dismembred from it, and ought to be subject to the same Laws and form of Government as their own King­dom, as well in relation to the so­vereign Succession, as to what con­cerns the publick State. So that in case the Monarchie of Spain should fall by Marriage or otherwise under the power of a King of France, she would become a member and an inseparable Accessorie of France; she would be reduced to the same condition with Bretannie and other Provinces, and failing of lawful Successors in her Line, it would pass to the Collate­rals, and to all those who should at­tain [Page 93]to the Throne of the Flower-de-luces.

All French-men are so unanimous in this Pretension, that it would be superfluous to prove it to them; though it would not be hard to impugn it. But 'tis a Maxime re­ceived amongst them, of which they have put themselves in possession by a long abuse, and which they are resolved stubbornly to maintain in all manner of Rencounters.

This Incompatibility held for a while the Council of Spain in sus­pence; they wished Peace, yet would not buy it at the price of so hard a Servitude; and the Directours of so many Kingdoms could never have perswaded themselves to become Subjects of another Realm, nor to see their Ruling Crown reduced to a Province.

The Queen-Mother of France, who with the tender feelings both of a Mother and an Aunt passionately and with ardour wished so fair and so fitting an union of two Persons [Page 94]which were so dear unto her, ap­plied all her cares to remove those Hinderances, and this temperating mean was found out to secure the reasonable Doubts of the Council of Spain, That by the Contract of Mar­riage, the Infanta should absolutely renounce all kind of Rights which she might ever pretend either upon the whole or the parts of this great Succession, under any Title or Pre­text whatsoever which at any time she might have thereunto, to the end that in no case the Spanish Monarchy might either be subject or dismem­bred.

And both sides the willinglier con­sented to this Expedient, in regard that the way had already been beaten by the example of the Queen-Mo­ther of France, and that in effect the Renunciation which she made was of the same nature with this present one, both in the form and in the substance, as being founded on the very same cause of the Incompatibilitie of these two Successions. This Marriage, and [Page 95]consequently this Renunciation, which was the ground-stone of it, hath been so much celebrated by the French Authors, that in the Book of James de Bie of France Metallick is seen ingraven on the backside of a Medall of Gold Lewis the XIII ^th holding Elizabeth of Austria by the hand, with this Inscription, AETER­NAE FOEDERA PACIS. But the rapid motion of France is inconsistent with the fixed point of Eternity.

Spain, which presupposed the same Sinceritie to be in others which she found in her self, gave ear to this Offer, believing that by this Precau­tion the Laws of Spain might be re­conciled with the Salique Law, and the Liberty of their People and the Authority of their ancient Government be ful­ly secured. France, It is certain by the Act of Renunciation, and by the Contract of Marriage, that in Agreement be [...]t the two Kings did pre­cede the said Renun­ciation. which ac­knowledged that the thing was just, and had been for­merly in use, put her hands fully to it, because of the great good which would redound unto her by [Page 96]a Peace which did establish her in so many Conquests. The Instru­ment of it was drawn by common Consent, and the most Christian King obliged himself to Ratifie it, and cause it to be Enrolled in the Parlia­ment of Paris, presently after the Marriage. And this Agreement was all the Foundation of the Peace, which was immediately thereafter concluded.

Things being thus concerted bet­ween the Parties, the King, who had a Passion for this Princesse which surpassed all the Reasons of State, would conclude nothing without her Approbation, and therefore did put into her hands the decision of her Fortune: On the one side he repre­sented to her the Crown of France, and the Person of the most Christian King, with all the Advantages which do render him so worthy of esteem; and on the other side a doubtful Suc­cession (which indirectly looked to­wards her,) to one of the greatest and most powerful Monarchies of the [Page 97]World; Made known to her those irrevocable Laws, which could not suffer that these two Kingdoms should be united into one, and did not permit that she should retain her hopes and her Rights in the one, if she preferred to it the possession of the other; That he left it to her en­tire disposition, to chuse of these two incompatible things that which she should find most agreeable to her Ge­nius, and most suitable to her For­tune.

This Generous Princess, who had been educated in an Inclination for France, and had a sufficient esteem for the Person of the most Christian King, to prefer it before all the King­doms of the World, and who, stung with a very noble Ambition not to despise so beautiful a Throne as that of France, did not stick to embrace the better and the more advantage­ous Bargain: She freely renounced what could never be hers, but by the death of those whom she loved as much as her self, to accept of a Good [Page 98]much more precious in her esteem then that which she abandoned; she quitted the doubtful and the future for what was certain and present, hopes for realities, and renounced most generously those Pretensions which she abhorred, since they were but impediments to the accomplish­ment of her desires and to her good fortune. Nor can it be doubted of without doing her injury, but that if it were yet at her election to re­enter again into her Rights by quit­ting the Good she doth possess, she would as willingly ratifie this Act to keep and enjoy it, as she did freely sign to obtain it.

Upon this true Narration, and up­on the Act of Renunciation, as also upon the XXXIII. Article of the Treatie of Peace, divers Reflexions may be made, and Principles esta­blished, which will overthrow from the foundations all those of the con­trary partie.

The first is, That this Treatie of Marriage, and this Renunciation, is [Page 99]an essential member of the Peace; and though they be digested into different Instruments, they do all notwithstanding make up but one Treatie, as it is expresly declared in the said XXXIII. Article, wherein speaking of the Contract of Marriage to which they refer themselves, these words following are added; Which though it be separated, hath the same force and vigour that the present Trea­tie of Peace hath, as being the principal part thereof, and the most precious Pawn of its greater security and lasting.

Secondly, That as well the said Treatie of Peace as that of the Mar­riage are Contracts of sincere Faith, and not of strict Law; and that for the rule and ground of their subsist­ence and Interpretation, we must re­ferre our selves to the Causes and Ends which both sides did propose to themselves in Treating, and the Uti­litie which arises from thence to the publick good.

Thirdly, That these are Treaties betwixt two Great Monarchs, who [Page 100]are not subject to any particular Laws, It is clear­ly explain­ed in the Act of Re­nuncia­tion. nor dependent on the Customs of Places: That they are fundamen­tal Laws of the one and the other State, which are not to be measured but by the Laws of Nations; 'tis a natural Obligation which they con­tract, which cannot be broken by any Civil Law; I. Jura na­turae de Reg. Jur. it is properly the indis­pensable Law of Sovereigns, which they can never violate nor alter with­out Injustice, nor correct but by common Consent. They are above particular Laws, they can change and augment them at their pleasure, as the Codes Henry and Lewis: But these which tie them to an Equal with a reciprocal knot, and which are the foundation of the publick Tranquil­lity, can never receive any other form then that which the publick Seal hath imprinted upon them.

The Princes who are absolute So­vereigns, when they do act as such, have but two ways to terminate their Quarrels, Arms and Treaties. The first is but a means to attain to the [Page 101]other: but if the latter have not a solid and immovable foundation, and if it be permitted to break it upon the least Subtilities of private Right, there is no more Securitie in the World; and it is to reduce it to its first Con­fusion, which gave occasion to the bringing in of Kings and Magistrates, to hinder that force might not be the sole Arbiter of Differences. Now as Princes are established to remedy this disorder among their Subjects, so are Treaties likewise introduced to work the same effect among Princes; so they are their Judges and their Magistrates, to which they ought en­tirely and absolutely to submit them­selves, as they pretend that their pro­per Subjects are submitted to them. France admits of no Prescription to the prejudice of the Royal Domaine, she receives no Judges nor Processes; there is nothing then but publick Treaties which can bound her Pre­tensions, which do extend themselves almost over all Europe. If she be suf­fered to exclude even this, there will [Page 102]be no other means remaining but that of Force, which silences all Laws, and Kings shall put themselves abso­lutely out of all Commerce.

Fourthly, That this Renunciation is the Soul and the inseparable Con­dition of this Treatie of Marriage, without which it had never been ei­ther designed or concluded, nor con­sequently the Treatie of Peace; as is expressed in the Article before cited.

Fifthly, That it proceeds not from the bare motion of the deceased King, or a particular inclination of his towards the Children of the Se­cond Bed; but out of an inevitable Necessity flowing from the Salique Law, and the unjust Extention which France doth make of it to all the States which Fortune hath put in­to her power: this Necessitie, and the other of the Publick good, with the conservation of this August Fa­milie, reduced the Infanta to the condition of never being able to be Queen of France, but by this Renun­ciation.

Sixthly, This is e­vident by the Act of Renuncia­tion, fol. 17. That there's no constraint nor violence on her Father's part, whose Sweetness and natural Mode­ration have so eminently shined throughout the whole course of his life, not onely towards his faithful Subjects, but likewise towards his E­nemies and Rebells, that many con­ceived it did reach unto excess. It is not to be presumed that the same heart which had in it an inexhaustible treasure of Bountie toward all the rest of the World, should have no­thing but Rigour and Hardness for a Daughter who was the Centre of his choicest delights. If there had been any Constraint, the effects would have been seen by some Complaint or Action of the Infanta's; and if her respect to her Father did hold them up, her Discontent would have appeared in her eyes and in her face: the troubles of the Soul, what care soever is taken to hide them, do im­print a character outwardly which betrays the secret of the Heart. Ne­ver was any seen to go to a Wedding [Page 104]with more visible signs of satisfaction: She signed this Act with so pleasant a Resolution, that it was easie to ob­serve she much more esteemed what she was to acquire, then what she lost thereby; and the Tears which she shed at this day for this War, of which, against her mind, they do make her the innocent Pretext, wit­ness sufficiently that she disapproves of the Cause of it as much as she de­tests the Effects, and are authentick ratifications of the free Consent which she gave to this Renunciation. If she had done it unwillingly, she would not have failed to have made Protestations against it, as soon as ever she found her self in a condition to declare without fear and with the applause of all France the true thoughts of her minde. She her self will confess, without doubt, that it was neither Respect, nor Obedience, no nor Complacencie, but the free choice of her own Inclination and Prudence: That the King her Fa­ther neither employed his Paternal [Page 105]power, nor Royal Authority, nor Command, nor Threats, nay not so much as Persuasions, to induce her thereunto; but that he satisfied himself by proposing nakedly the state of Business to her, that he might leave to her self the entire decision: That of the two parts she made choice of the most advantagious, and the most fit­ting: That she never repented of this Choice, and would to day doe the same thing again without any kind of hesitation, if she were in the same condition in which she was then. From whence it may be concluded, that this Act having been made with­out any kind of Fear or Violence, it cannot be called in question by rea­son of any exception of the Civil Laws. Qui metum non intendit, Promissio validè fiet; nec scrutabimur quid aut quatenus ejus intersit, quae Juris Romani sunt subtilitates. Grot. lib. 3. cap. 19. de Jure Belli.

Seventhly, That there is no Laesi­on, seeing that she acquires a greater Benefit then that which she hath re­nounced, [Page 106]not being able to possess them both together by an irremedia­ble repugnancie. It was then a kind of Permutation, rather then a Ces­sion, because she gave to obtain, and quitted to get. The Laws give no rise to an entire Restitution, where the condition of the Minor is rendred more advantagious by the Contract, and do permit in this case Alienations even of the Goods of Pupills. It is al­most impracticable in the Contracts of Kings, to prove the Laesion, and de­termine the legal Portion with its just weight, which cannot be verified but by the valuation of the Goods; the inevitable Expences must be de­ducted, and the necessary Charges: their affairs are involved into so ma­ny Intrigues, charged with so many Obligations and Costs, that to consi­der it in its rigour there remains very little unto them whereof they can freely dispose; and by the ordinary Rules it is impossible to set a price upon their Estates. It is for this rea­son that they are accustomed, by a [Page 107]practice received among Monarchs, to give unto the Daughters a certain summe of Money, which serves in­stead of a legal Portion, without ever coming to any other rating of Goods, which cannot be justly valued. The most Christian Kings do practice this towards the Daughters of France. He of England used the same way towards the Dutchess of Orleans; our King to­wards his: The Princes of Italie and Germanie have the same Custome, without ever speaking of Supple­ments, legal Portions, or Laesions, which are properly the Actions of private persons, unworthy the Great­ness of Monarchs, who never act for Profit, but for Reason of State.

Moreover, we must consider (as I have said) this Marriage not as a private Contract, but as a Member of the Treatie of Peace, which neces­sarily relates to all the other Conditi­ons. By the said Treatie, and con­sequently in consideration of the said Marriage, are granted unto the most Christian King a great quantity of [Page 108]Provinces and States, which do so notably increase his Dominions, much exceeding the value of whatever the Queen of France can pretend for her legal Portion: and this Concession doth redound to the advantage and to the Greatness of the Queen of France, by that inseparable conjunction which unites all her Husband's Interests with hers. Whence it follows, that this Cession ought to suffice her in the place of her legal Portion, since the Marriage was made in favour of the Peace, and the Peace in conside­ration of the Marriage, and that they are two indivisible things, which could not have being the one without the other, and so strongly chained to­gether, that the Conditions of the Marriage are included in the essence of the thing, if the Cause, the End, the Effects and the whole Context of the Negotiation be considered.

'Tis in vain that they alledge that they have acquired them by the right of Arms, and that they were in a con­dition to drive us to Extremities, and [Page 109]would have us esteem it a grace to have spoiled us but of a half: 'tis too much to presume on their good fortune, and to dispose too absolute­ly of the success of Arms, of which God alone hath reserved the events to his Providence. All the world knows that if the necessity of our Affairs had obliged us to take the re­solution of treating with Portugal, we could have had means enough to ob­lige France (at the least) to have sha­red equally the fear and the danger with us. Their People, wearied with the War, and overwhelmed with Taxes, waited onely for a turn of the Tide to take off the Masque: the neighbouring Princes were resolved not to suffer them to enlarge their Conquests any farther. The Tyrant of England, who made that Kingdom act against its own Interests, in favour of France, was already removed by death, and the common voice of the Nation in order to the Reesta­blishment of the Lawfull Successour, enlightned with so many knowledges, [Page 110]and endued with such vigour and ex­perience, that it was not to be doubt­ed but that he would soon put the Counterpoise upon our side, by joyn­ing to his Interests the resentment of a multitude of Wrongs: We were powerfully armed in all places, and in those very Summers which preceded the Peace we were in a condition to carry the War home to them. The most penetrating among them know the secret motives which obliged the Cardinal Mazarin to make this Peace, and that the apprehension of what was to come more then any Modera­tion was the first mover of it.

But setting all their Boastings apart, is it not a considerable advantage for them to have established by a Trea­tie what they had conquered by Arms, to have acquired by a just Ti­tle that which they could never have retained without Usurpation, and to have freed themselves from all the dangers and expences which were inevitable to them in keeping them?

But if it be true, as they do pre­tend, [Page 111]that they were in a condition to dispossess our King of his Throne; they must confess two things which are extreamly against them: The one, That the Marriage and Renun­ciation were the Safety and Delive­rance of the Monarchie; and that the King could not onely have made the most illustrious Infanta renounce all her Rights upon this consideration, but that he was bound so to doe by a strict Obligation, since the Goods of private persons belong to the Publick in case of such necessities: Arist. l. 1. cap. 10. that the publick good is greater and more di­vine then the private: that this last, by obligation of Conscience, is bound alwaies to yield to the other, accor­ding to the opinion of all Doctors: and that even the Infanta her self, Sakes popu­li s [...]p [...] Lox. gi­ving her remote and uncertain Pre­tensions to the common good of both the Crowns, hath done an heroick Action, whereof France would now obscure the Glorie.

The other is, That she hath not one­ly done good to the Publick, but also [Page 112]that without betraying her self she could not refuse to give her consent to this Renunciation: her Rights and Pretensions should have been swal­lowed up in the publick Shipwreck; in vain had she reserved to her self Titles, if the Arms of her Enemies were upon the point to take all from her. So that very farr from a Laesion, she may reckon for a new Purchase all that she hath been able to save from this Wreck. Her Portion had been very ill assigned, in case her pa­ternal Goods had fallen into hands which cannot dismember, alienate, nor restore one inch of Land. And in this case it is very probable that the most Christian King would have de­spised the Alliance of a poor exiled Princess, who would not have had any other provision but her Vertue; and she her self would not have had the heart to cast her self into the arms of him whom she found loaden with the Spoils of her Father. She hath redressed all those inconveniences by this Renunciation, and opened to her [Page 113]self the way to this Crown, to which we now see her so worthily elevated. What Laesion then can there be pre­tended, when these two Convenien­ces, de damno vitando & lucro cap­tando, do meet so perfectly united?

Eighthly, 'Tis an affected ignorance both of Fact & Law, to alledg that the Queen was under age when she passed this Act. No body can doubt but that the Princes and Princesses of Spain are out of Minority before the age of Twenty years, as it is expressly de­clared in the Renunciation; And as by the grace of God I do find my self to be in the age of Major, and more then twenty years old. Royal Persons are held to be out of Minority as soon as they have attained to the years of Youth. And though one should con­sider the Infanta as a private person, and that this were to be regulated by the Laws and Customes of private Successions; it is a certain truth, that by the Local Customes upon which France doth found her Right, both Sons and Daughters are Majors at [Page 114]the age of twenty years, and may free­ly dispose of their Fiefs even in rela­tion to their own life, without any Dispensation from the King, or autho­rity of a Guardian. L. Scio, ff. de in inc. rest. And if she were under age, there must first be some enormous Laesion caused by the Faci­litie of her who renounces, or by the Deceitfulness of the other party. Auth. Sa­cramento pauperum, C. Si ad­versus vead. But here is neither Laesion, Weakness, nor Deceit; and in the end the pri­vilege of Minority serves them for no­thing, where the Deed is confirmed by Oath. It is certain that if in this age she had attained to the Succession of the Kingdome, or the Provinces which they say do belong unto her, she would have had no need either of Tutors or Governours: This Law supposes, that Nature and Education do sooner produce in the minds of Princes those fruits of Prudence, which do not grow ripe in others but by time. And if the Civil Laws dis­pense before the time prescribed by Municipal Laws, touching the sub­jectings to Minority those, who by [Page 115]industry and assiduity have rendred themselves capable to govern their own and other peoples business; it is much more just that such as the pub­lick Laws admit without limitations and dependences to the Administrati­on of Kingdomes, may uncontrouled dispose of their own concerns, though the Custome which restricts private persons to the age of Twenty years should not be considered. And since she was in a condition to enjoy the privilege of Reigning without an O­verseer, 'tis evident that she had no right to enjoy the benefit of Repara­tion; forasmuch as the French Civi­lians hold for an indubitable Maxime, that he Daughters which are capable of Marriage are also capable of any other kind of legal Deed. Du Mou­lin on the Custome of Blois, Art. 161.

Ninthly, It is an insupportable In­jury to the Memory of the late King, to accuse him to have disinherited his Daughter the Infanta. On his part there was no positive Act, more then a simple consent and authorizing of [Page 116]the free Renunciation made by this Princess, who by a voluntary choice did preferr the Crown of France be­fore that of Spain, which she looked upon as very remote. The Testament of the King is nothing else but a Con­firmation of this same Deed, which he supposed to be Legal, being fra­med upon the platform of those things which were established by the Peace. And if the Renunciation be just, it must of necessity follow that the Te­stamentarie disposition, which is but a consequence of it, is so likewise. All the vain Exclamations which the Authors of these Libells do make up­on that Subject are but the extrava­gant digressions of an affected Elo­quence to astonish the people. 'Tis the like too of all those majestical Consequences which they draw from thence to exaggerate the Injuries which have been done to his Suc­cessours. If the thing be just in it self, and received in the person of the Mother, it cannot be unjust in her Successours, who have no Right but [Page 117]what they derive from her. And if it be permitted to private persons to make Entails to the exclusion of Daughters and their offspring, in fa­vour of collateral Lines; if the Sa­lique Law may perpetually deprive them and all their Descendants of an Hereditary Kingdome; what Inju­stice can be found in this, that Spain hath desired this Renunciation, to the end they fall not into the Depen­dencie upon a stranger-Kingdome? The Daulphin of France had never been in the world, nor had any share in the Crown of France, if the Queen had not renounced: and if he cannot be at one time King both of France and Spain, he must lay the fault on the Salique Law, which de­vours all that it possesses, and ob­liges all other Kingdomes to provide for their own safety by fitting Precau­tions, and by the natural Law, quod quisque Juris.

The source which they leave for the Queen to re-enter into her Rights, in case that God should afflict her [Page 118]with a Widowhood without Chil­dren, is an effect of the Fatherly Ten­derness and Justice, which would needs establish her Happiness in all ca­ses, by putting her in a condition either to reign gloriously in France by her Fruitfulness, or to have wherewithall to comfort her in case of Barrenness, by re-entring into her Rights to the Monarchy of Spain. This doth clear­ly shew that in this Renunciation her Person was not regarded, but onely the Obstacle inconsistent with the Reason of State, which did suspend the effects of that Love which they had for her; and that renders the Renunciation the more valid, because it is not absolute, and leaveth the Gate still open for her Re-entry as of­ten as the essential Impediment shall not come in the way; far from wish­ing her Barrenness, or exclusion of her Offspring, whenever they may be re­ceived without subjecting the King­dome. Instrument of Renun­ciation, fol. 13. The way is opened to place her and her Successours upon the Throne of Spain; If for publick Con­veniencies [Page 119]and just Considerations she should marry with the consent of the Catholick King, and the Prince of Spain her Brother. Whereby it is manifest, that the fundamental and sole cause of this Renunciation is, to exclude France from the right of being able to annex the Monarchy of Spain to his Realm and Laws, and not to de­prive the Queen or her Issue of it, when no other thing shall hinder them from being admitted. Meanwhile upon this the French do make a great noise, they convert the Ho­ney of this Deed into Poison, and make an Injury of a Benefit; and testifie thereby that it is not the love of the Queen, but their own Covetousness to devour all, under colour of her Rights, which doth throw them into this inordinate pas­sion.

Upon these indubitable Principles it will not be difficult to establish and ground in Law the validity of the Queen's Renunciation upon the fol­lowing Rules.

• 1. It is lawfull for Princes to resign and renounce their Hereditary King­dom in favour of the next Heir. The example of Charles the V ^th, Philip the II ^d, and the Queen Christina, doth evidently prove it. And even in E­lective Kingdomes, where it seems that the Obligation to reign is more indispensable and less capable of be­ing retracted then in those which be Hereditary, because it is established by a reciprocal Covenant, and by an Obligation which such Kings have willingly imposed upon themselves, we have seen Henry the III ^d re­nounce openly by his flight. And if the French themselves could constrain Childeric the III ^d and some other of their Kings to throw themselves into Monasteries, and make them renounce their hereditarie Crowns even in fa­vour of Strangers; why shall it not be permitted to Princes to devest themselves thereof willingly, to ob­tain a greater benefit, or for the simple desire of Quietness?
  Gen. 3.
  John King of Armenia quitted the King­dome [Page 121]to his Nephew Leon,
  Clem. 5. Greg. 11.
  to enter in­to the Order of Saint Francis. A great many Princes and Princesses, lawful Heirs of Hereditary Kingdoms, have validly renounced them, either for the Publick good, or their private Tranquillity, to embrace Religious or retired life; as Saint Bridget in Swe­den, and others in Hungarie, Germa­nie, and Spain. France also furnishes us with examples of this kind: Car­loman, the eldest Son of Charles Mar­tel, parted with his Kingdom to his Brother Pepin, that he might wholly dedicate himself to the Service of God. What those Princes have been able to doe, either out of Devotion, or the love of Liberty, the Infanta might doe with a juster title for the good of the Peace of two Monar­chies. The Fundamental Law which called her to the Succession was in her favour, and not for constraining her: It is a Right that is given them, but not a necessitie imposed upon them: 'tis not a forbidding Law, which we cannot renounce. The [Page 122]King her Father could not without the consent of the States exclude her against her will, or make her unca­pable of the Succession; but she might voluntarily renounce, for her greater good, and for that of the State it self, and that too with the general ap­plause of the people over whom she might have been Queen.
• 2. Though the ancient Laws were in some kind against the Renunciati­on of future Successions, the practice of them is now abolished for this re­spect, and the contrary so well esta­blished over all the World, that the French Laws do unanimously agree unto it, and even that He who hath re­nounced some future Succession, cannot recall by the happening of Children what he hath quitted; Epeisses Tom. 1. pag. 407. The Constitution of Pope Boniface,
  Con. ad cap. Quam­vis, p. 3. Const. Bon.
  which the Author of these Libells cites on this Subject, deter­mines it clearly; the practice of it is commonly received in Spain, In Bra­bant, and in all the King's Dominions; and since he himself doth nor disagree [Page 123]with it, I think it would be super­fluous to seek any greater proofs.
• 3. That the Right of Devolution according to the Custome of Brabant being neither Succession nor Pro­prietie, nor a real assured Estate, but casual and in suspence, it may be va­lidly renounced; and that the use of it is common throughout the whole Dutchy.
  Wamesius, Kintschot, Christin. Mean.
  These three conditions of the Right of Devolution are clearly proved in that learned and solid Trea­tise which the Counsellor Stockmans hath lately published on this Subject, and all the Authors of the Country who have written upon it do unani­mously agree with him therein.

As to the first Point, that the De­volution is not a Succession, it is ea­sily proved by the Customs of the Places where this Right is in force, and by the Effects both of the one and the other, which are totally dif­ferent. Succession supposes Death, and Devolution doth begin from the moment of the Dissolution of the first Marriage. L. qui su­pustitis, ff. de ac­quir. haered. There can be no [Page 124]Succession to a living person, that were to bury the Fathers before their decease, and make Children succeed one another in the Father's life-time, to change a Succession which is di­rect in its own nature into a collateral one: The Grandchildren (whose Father died before their Grandfather) would be wholly excluded from the Inheritance; for they cannot enter by way of direct Succession, because it would be fallen to their Uncles or to their Aunts; nor by collateral, be­cause they would be of an inferiour degree, and that the Feodal Custom of Brabant doth not admit of Repre­sentation in indirect Successions: so that if it were a true Succession, it might happen that an Aunt would totally exclude the Son of her elder Brother, which would overthrow the whole order of the Succession, and the first Institution of the Fiefs of Brabant, where the Males of the First Bed and their Descendents are al­ways preferred to the Females. It is to no purpose that the Authors of [Page 125]these Libells will make use upon this subject of some ill-conceived terms, and improperly applied in some one of the Feodal Customs, by which it seems that they give the name of Succession to Devolution: for the same Feodal Customs of Bra­bant which he cites were never de­creed nor approved, and those which we find in print are for the most part but the Projects of the Lieutenant of the Fiefs of Brabant, and of some Practitioners who have not reflected upon the force of the words, but ha­ving been presented to the Gover­nour to be examined and decreed, the Approbation of them was refused, in regard they were conceived in terms not very proper. But how­ever it be, when the Law and Cu­stome is contrary, and that the in­tention of the Law or of the Custome is manifestly known, 'tis a ridiculous thing to prefer the words before the substance, so much the more, because the same Customs do explicate very clearly the Equivocation in other [Page 126]places. In the XXV. Article it is said, that If the Fiefs come from the first deceased, the Proprietie succeeds to the Children: which evidently ex­presseth by this distinction, that they do not succeed in the Proprietie of the Goods of the Survivor; and that the one is Succession, and the other Devolution. In the XXXVII. Ar­ticle also it is said, that Feodal Suc­cessors do not ascend, but must al­ways descend: so that were the De­volution a Succession, it would pass immediately unto the Children of the Second Bed, in case those of the First die without Issue: whereas 'tis cer­tain by the XXIII. Article, that they do return back to the Fathers, or ra­ther that they remain free and reliev­ed of the band by which they were tied, which is rather a Settling, then a Return of the Proprietie. Other­wise a great absurditie must follow, which is, That the father would suc­ceed as representing his Son, and so would be obliged to renew his Inve­stiture, and swear Homage anew; [Page 127]which hath never been practised. Although that the enacted Customes of Lovain speak very uncorrectedly, and seem in some places to confound the Devolution and the Succession; nevertheless it may be seen by the coherence, that they ought to be un­derstood with different relations, and that the word Succession ought to be applied to an Estate already fallen by the death of one of the Parents, and that of Devolution as relative to the Goods of the Survivors; since the Custome in this place treats of the one and the other, and in others it calls the Father the Proprietarie of the Ʋse or fruits, and that they treat distinctly and in several Articles both of the Succession and Devolution, as matters of a different nature in their Cause and in all their Effects. This Question is so plainly handled in the Treatise of the Sieur Stockmans, chap. 5. de Jure Devol. that the Reader therein will finde wherewith to satisfie himself fully touching this particular, if he hath the curiositie to run it over.

As for that which concerns the Proprietie, the Children of the First Bed do not possess any effect thereof whilst either of the espoused are li­ving, as having neither the use of the fruit, nor the testamentarie dispo­sition, nor the right of Alienation or of Engagement, nor any other of those Actions which by Law do be­long to the Proprietor: and if they chance to die before their Father, they fall from it totally. So that all their Right consists in a simple assu­rance that those Goods shall not be alienated, and in a hope to succeed one day thereunto, in case they do out-live their Father. If they were Proprietors, they would be obliged by the same Custome Article LII. to take the Investiture from the di­rect Lord during the life of their Fa­ther; which hath never been pra­ctised. The Father on the contrary hath all the effects of the Proprietie, with this limitation onely, that he cannot alienate to the prejudice of the Children of the First Bed: that [Page 129]excepted, he enjoys, he possesses, he governs, he acts juridically in his proper name; he is not bound to make any Inventory, nor liable to give an Accompt, and hath all the real Actions, which of right cannot belong to a simple Usufructuarie, and are necessarily annexed to the Propriety. He is not so bridled, but that the Alienations which he makes are valid in themselves and subsist­ing, if the Children come to die before him; though they be subject to Re­scission, if they survive him. In a word, the Proprietie by this Devo­lution cannot be attributed to the Children by any of the Titles of Law by which Domains are acquired: they cannot pretend to it by way of Succession, as I have already shewn; the Devolution gives them not any effect, nor any Title; and the Father hath not lost it by any of the ways of Alienation which the Civil Laws have prescribed; the Death of his Wife cannot take from him the Do­main of his Goods, L. nemo, ff. de Reg. Jur. which cannot be [Page 130]lost but by a voluntary act, as of Do­nation, Sale, Cession, or Crime. Whence it ought to be concluded, that the name of Proprietie, with­out abusing the word, cannot be given to that which hath neither the effects nor the cause thereof; and the Cu­stome cannot, without injustice, de­nude a Father absolutely of the Pro­priety of his Goods before his Death, without his own Consent. All these Truths are confirmed by solemn De­crees, and by the unanimous Opinion of all the Doctours of the Country, as well modern as ancient, who have treated of this Subject.

By all that I have said it is easie to infer, that by renouncing the Devo­lution we do not denude our selves of our proper Goods, we do not part with a Succession already acquired by us, but deprive our selves onely of a hope, whereof the event is no less uncertain then the hour of our death; which is properly to renounce onely a future and doubtful Succession, which is permitted by the Laws, and is in [Page 131]use in relation even to those Goods devolved in all places where the Right of Devolution is received.

If the Queen of France might law­fully renounce, I do maintain that she was bound to doe it by a strict Obligation, for the good of the two Kingdoms, for her own good, and by a principle of Thankfulness for the Kindness of the King her Fa­ther.

She her self professes in several places of the Deed of Renunciation, that the Motives which induced her to doe it are, the Acknowledgment of the numberless Benefits which she had received from the King her Father, the good and conservation of his August Fa­milie, and the love of the Safety and Quietness of the State. And I per­swade my self that she suffered a great deal less Dammage and Grief by de­nuding her self of this Right, then she undergoes now by the Avidity of those who would re-establish her in it against her will. In effect, she sees her self reduced to the necessity of [Page 132]deploring the Misfortunes of a Bro­ther, or of a Husband; to see her Family overthrown, or her Throne destroyed: and that to which of the two sides soever Victory doth lean, it cannot be but fatal to her Glorie, or to her Affection.

Against the evidence of these Ve­rities the Scribbler forms divers Ob­jections, which are all founded up­on false Suppositions in matter of Fact and Right. He cites one onely Article of the Treatie of Marriage, and draws out of it one Member to make up the whole Body of his Dis­course, without citing any thing of the Act of Renunciation. The two Reasons which he presses most are these: That it is of the essence of a Renunciation, that a Daughter should be endowed; that the Law in Spain is express for it; and that if the Father gives less to his Daughter then her Le­gal Part, the Renunciation is null; and that it is requisite that her Endowment should be constituted out of the Fa­ther's Estate.

Upon which he makes two Ar­guments. The one is, That the In­fanta hath not been endowed, be­cause the King owed to his Daughter eleven hundred thousand Crowns of Gold of the Goods belonging to her Mother, and hath promised her but five hundred thousand for her Por­tion, obliging her to renounce that which he was indebted to her.

The second is, That these five hundred thousand Crowns of Gold were not paid within the Term pre­fixed; That a Portion promised and not pay'd is not a Portion. From whence he will inferr, that by this deficiencie the Renunciation is an­nulled.

These two Propositions, which he endeavours to prove by a rabble of unuseful Allegations, are not com­prehended within the Fact, of which he doth craftily omit the principal Circumstances, and touches not the essential point of the Question: so that if we should agree with him in his Principles, yet he could not draw [Page 134]from thence any Conclusion to our disadvantage.

In the first place he abuses very improperly the terms, and the sub­stance of the Laws, when he strains himself to prove that the Portion promised and not pay'd is not a Por­tion; which shocks all the doctrine of the Law, it being indubitable that it is truly a Portion as soon as it is promised, for it induceth a real Ob­ligation upon him who did make it: Et qui habet Actionem ad Rem, Rem ipsam habere dicitur, when the Debt­or is sufficient. This Question is to be found very clearly decided in Tira­quel, and the Texts of the Law and Authors which he cites, in his Trea­tise of Retract. Convent. 8.7. ad fin. tit. Gloss. 2. num. 32. & seqq.

In the second place he mistakes himself, by intending to make this Renunciation pass for a private Deed, which ought to be regulated by the Civil Laws. I have shewn be­fore that it is a publick Deed, an es­sential Member of the Peace, and an [Page 135]Obligation which hath for its Cause the Fundamental Laws of the State, & for its End the Conservation of it: and I affirm farther, that it is a Law and a Pragmatick Sanction, established by common Consent between the two Crowns, and by the general desire and wishes of the People, expresly derogating from all particular Laws, as it is evidently set down in the Deed of Renunciation; speaking of the Agreement made betwixt the two Kings for the Treatie of Marriage, it expresseth it self in these words: And that in the V. and VI. Articles of the said Treatie it is resolved and settled by common Consent, (that is to say, of the two Kings,) and by the same will, and as a thing most convenient, after having attentively considered it, &c. that I, and the Children which God shall give us of this Marriage, shall re­main unable and incapable, and abso­lutely excluded from the Rights and hope to succeed to any of the Kingdoms, Estates and Seigniories, &c. And a little lower it proceeds; Condescend­ing [Page 136]to this with the common desire and wish of their Subjects, Vassals, and na­tural Lieges, who will that it have the force and vigour of a Law and prag­matick Sanction, and that it be recei­ved and observed as such. And some few lines after in the following §. it is added; It shall be agreed by Cove­nant, that their Majesties will that it have the strength and vigour of a Law establisht in favour of their Realms, and of the publick Interest of them, &c.

Three lines above this he doth specifie the Causes: Regard being had to that which imports to the publick State, and their Preservation, (he speaks of the two Crowns) that being so great they come not to be joyned to­gether, and that the occasions be pre­vented that may afterwards happen of joyning them together, &c. He ex­presses himself yet more clearly two pages below: Having joyntly regard to the Publick and Commons of the Realms of which God hath given him charge, the which and those of the Crown of [Page 137]France are equally concerned that the Grandeur and Majestie which they have sustained and preserved for so many years, with such good fortune and glorie to the name of their Kings Catholick and most Christian, may not be diminished nor decrease, as necessarily it would di­minish and decrease, if by the means and by reason of this Marriage they should come to be joyned and united in some of the Children or Descendents, the event whereof would occasion to the Subjects and Vassals the Discontents and Afflictions which may be considered: and subsequently makes report of divers publick utilities which arise from this Agreement, and places it as the essential Foundation of the Peace and of its continuance. And to facilitate for the future the Alliances betwixt the two Crowns; which other­wise the pretended Salique Law would render alwaies dangerous and not to be practised, unless they had agreed amongst themselves upon this Re­medie, whereupon there are many things to be considered.

1. That it is an Agreement made betwixt the two Kings, for the good of their Estates; that this Renuncia­tion is relative to the V. and VI. Ar­ticles of the Treatie of Marriage which was concluded with the most Christian King, wherein he interve­ned as the principal partie, as is cer­tain by the Narrative at the begin­ning of the said Deed. It appears also by the Obligation which he im­poses upon himself to ratifie it: be­cause if he had not acted in this Re­nunciation but in the quality of a Husband, and not of a partie promi­sing and accepting in his own name, he could not nor ought not to have ratified it, but onely to have autho­rized it; though he hath ratified it, as the Authour himself doth acknow­ledge, and that the Ratification of the Treatie of Peace did necessarily in­clude all that to which it was relative. Now it is uncontroverted that the two Kings by common consent, at the desire of their People, had power to derogate from Laws of private [Page 139]concernment, in regard they made them, and have the right of repealing them; that the Kings of Spain and France, for causes of less importance, do not onely derogate, but change every day their Constitutions and Laws: and therefore that which they doe for the private respects of civil Justice, they have much more power to doe for the common good of the State: otherwise if they should not have the power to derogate from Laws, to extinguish Actions, and stop the Proceedings of civil Justice by publick Treaties, they could grant no Amnesties, nor hinder the Right of the Fiscall in the punishment of Crimes, nor of private persons for the Restitution of what they have ta­ken the one partie from the other, nor impose silence to parties contending, nor restore the Goods given upon just Confiscations, nor other things of the like nature, which fall out in all Pacifications, and which make it ap­pear that the necessity and the utility of the Publick good may derogate [Page 140]from Laws when it pleaseth the So­vereign. As it is certain that they have had the power, it is also clear by the same Instrument that it was their will, and that such hath been their intention. Without having re­gard to the said Laws, Customs, Or­dinances and Dispositions, by virtue whereof they have succeeded and do succeed to all the aforementioned King­domes, &c. And thereafter; To which and every one of them their said Ma­jesties ought to derogate in so farr as they shall be contrary, &c. And more below; And that it is understood by the Appro­bation of this Treatie, they do derogate and hold them to be derogated. And in the V. Article it is said; With De­rogations and Abrogations of all and whatsoever Laws, Ʋsages and Customs, &c. from which their Catholick and most Christian Majesties ought to dero­gate, and shall be understood from this present to remain derogated from, &c. But that which is yet of more efficacie and more considerable is, that in the Ratification of the Treatie of Peace [Page 141]on the part of the most Christian King this very Derogation is expressly con­tained; Derogating to this end as we do derogate from all Laws, Customs and Dispositions to the contrary.

2. It is certain by the Authour of the Dialogues own confession, that the most Christian King hath ratifi­ed this Agreement: 'tis in page 30. As to the Ratification of the most Chri­stian King, it might be of some conse­quence, if there were not other Nullities in the Queen's Renunciation then the defect of the Authorization of the King her Husband. Here he doth avow the Ratification, though in the same pas­sage he will needs make it pass for a simple Authorization: but it is perspi­cuously seen by all the Clauses of this Instrument, that it is an Agreement in which the most Christian King enters as the principal partie, & that the Re­nunciation of the Infanta hath its be­ginning and source from this Agree­ment, to which she did willingly con­sent: so that he must of necessity ac­knowledge either that the Kings of [Page 142] France have not the power to exempt themselves and free themselves from the Civil Laws in publick Treaties, nor to hinder the effects of them in what concerns themselves, (which is directly against the uniform opini­on of their Doctors, and offends even common sense;) or that he grant that the most Christian King, nor the Queen his Consort, cannot make use to their own advantage of those Actions which Law might give them, after they have derogated from them by a solemn Treatie. Otherwise men must renounce the faith of Trea­ties, and no Peace shall ever be secure, if in it the Actions competent to Par­ties can by no means be extinguished, and if still a gate be left open to the Exceptions in Law.

3. That these Writers do suppose a false Principle, that the Renuncia­tion was made onely in contemplati­on of the Portion: the Clauses a­bove cited do evidently shew that they are mistaken. Things must be looked upon in another light to judge [Page 143]soundly of them. The Right of Suc­cession was an essential Obstacle to the Marriage, which is certain throughout the Text of the Renun­ciation: The Marriage was a necessa­ry means to the Peace; I have alrea­dy proved it by the same Instrument of Peace: The onely remedy against all Pretensions was the Renunciation: to conclude the Marriage, the Obsta­cle was to be removed. Let us ac­knowledge then that the Renunciati­on ought to hold the first place, as the Dispositions ought to precede the Form; that it is independent of the Portion, as having different Causes and Ends; that it ought to have been stipulated before the Marriage was ever spoken of or the Portion. The whole Text of this Instrument shews that the Portion is in favour of the Marriage, and the Renunciation doth regard the good of the two Monar­chies; the one being founded upon the love and natural obligation of Fa­thers, and the other upon publick be­nefit: The one is a pragmatick San­ction, [Page 144]and the other not. It is agreed that the King my Lord (because and in respect of this Marriage, and to the end that I might carrie to it my Portion and proper Goods) hath promised that be will give me five hundred thousand Crowns. It saith not that because and by virtue of the Renunciation five hundred thousand Crowns shall be given, but in regard of the Marriage, which supposes that the Impediment of State should be removed by the Renunciation: and thus the Cause of the assignation of the Portion is the Marriage; the End, that she may carry her Portion to it. But the Cause and the End of the Renunciation is, For the publick good of the Kingdoms, the conservation of the Greatness and the Glory of their Majesties; to avoid the Discontents of the People, and the Dammages which might arise from thence; and to facilitate thenceforwards the Marriages between the Children and the Descendents of the two Kings; and lastly, to avoid the Hinderance which Reason of State brought to this [Page 145]Marriage, and consequently to the Peace. All these Causes are in their own nature irremoveable, unalter­able, and of absolute necessity, nor can be tied to a private Deed, as is the payment of the Portion, nor li­mited by any restrictive Conditions: and on the contrary the obligation for payment of the Portion may depend as to its execution upon many Condi­tions, and the effect thereof may be suspended for just causes. In the Re­nunciation the Infanta hath obliged her self to the whole State; in the Assignation of the Dowrie the King hath obliged himself to the most Christian King, as the future Spouse of his Daughter. The delay in the payment of the Portion is a prejudice in a pecuniarie matter, which may easilie be repaired by paying the Inte­rest which the Civil Law doth appoint after the term of payment is past; to shew that deficiencie in the payment doth not annull the Contract, since the Law hath provided for it by a­nother remedie. But the defect of [Page 146]the Renunciation would bring along with it a dammage which could never be compensed nor repaired; where­by it may be judged, that it hath not nor could not be the intention of the Parties to tie the Renunciation to the payment of the Portion, and make so necessary a thing depend upon one so casual, that it may be retarded by a thousand accidents. The Renuncia­tion also is conceived in terms of do­ing presently, and the payment of the Portion in these of doing here­after. And from this present time I do hold my self content and entirely paid all that belongs or may belong unto me. And as to the payment of the Portion, it is said; And this Summe shall be paid in the manner follow­ing, &c.

It cannot likewise be conceived how this Scribbler dares to publish, that the Spaniards did make the In­fanta ratifie it posteriourly to her Mar­riage, by some secret Acts which France hath never seen; seeing he himself doth acknowledge that the most Chri­stian [Page 147]King did ratifie it, and that it is expressly set down in the VI. Article of the Contract of Marriage, that the Queen should pass an Act of Renunci­ation before she shall marry in words im­porting the present time, and afterwards shall approve and ratifie it joyntly with the most Christian King, as soon as she shall have celebrated her Marriage. And though France had never seen those Articles, she cannot pretend any cause of ignorance of any of the Clauses contained therein, seeing that by the same Article of the Treatie the most Christian King doth consent that this Renunciation should be made in the most effectual and fitting form which could be for their validity and firmness, with the Clauses, Derogations and Abro­gations, &c. To which in the same Article he consented, and hath ap­proved them as if they had been al­ready made: They are held already made now for then by virtue of this Treatie.

But the Subtiltie of this Writer, who seeks by all means to fasten him­self [Page 148]upon such smooth ice, leaves all the Substance of the Case behind, to take hold of one word of the same Article, which is, providing the payment, &c. and would inferr, that this Renunciation is absolutely rela­tive, not onely to the payment of the money, but also to the terms of the payment designed in the Second Arti­cle; which cannot subsist without al­tering the whole nature of the Trea­tie, and giving a violent interpretati­on, and opposite to the sense and to the conception of this Article, and of the Renunciation: because it is not said in this place, that in case of pay­ment she shall renounce, but that she shall be content with the said Portion; which declares no other thing, but that when her Portion shall be pay'd, she shall be content therewith, it be­ing certain that she could not be satis­fied in this respect before she should be pay'd. So that the defect of payment within the terms mentioned gives her a just right to pretend to it with the Interests, which run from the time [Page 149]limited by the Laws, (if some just cause do not hinder) which regular­ly would not be due without an ex­press Promise, unless that it were in favour of the Portion, and cannot be extended farther. L. 1. ff. de Usutap. And albeit there should be in that some obscu­rity of terms, it is certain that in the Interpretation of such Treaties which are of upright Faith the Intention of the Parties is onely to be respected: so that the Scruples which may arise from the Ambiguity of the words may not prejudge the principal end. L. 1. de Legatis. And it is the more mani­fest in this case, because the Renunci­ation ought to be made in present and positive terms before the terms of payment should have been run out. Wherefore to put the Queen in the right of re-entring into all her Preten­sions by defect of punctual payment, they should have declared it by an ex­press Clause, which should have re­served those Rights to the Queen in case of failing; the rather, because in the same Renunciation they do spe­cifie [Page 150]two other cases in which she may be re-established in her Rights. If the intention of the parties had been to extend it to this, they would not have failed to explain it as clearly as the rest, being that it was as important and as likely to happen. By which it may be seen that this word [provi­ding] is no restrictive Condition, which suspends the Act of Renunci­ation, or which can annull it, because it is not said, that in case of payment she shall renounce; (for in that case she would not have been obliged to renounce till after the payment, or at least under the same condition:) but thereby it is onely meant that she shall content her self. And he subjoyns the cause independent of the Porti­on; By reason she ought to remain ex­cluded of all of whatsoever condition or nature, &c. which cannot signifie any other thing but that by a prece­ding Agreement between the two Kings, for the Reasons of State a­bove mentioned, she was to remain excluded. In effect, there can be no [Page 151]probability that for five hundred thousand Crowns of Gold she would ever have renounced the hopes of so great a Succession, if some other more powerfull Motive had not given the weight to this Resolution: and al­beit even the payment of the Portion were one cause of the Renunciati­on, they cannot deny but there are others more principal and superiour, which do concurr thereunto; and in this case respect is to be had to the chief and predominant, and to the End that was proposed in this Deed.

In truth it is a thing which occasi­ons pitty to see this Question moved between Kings, and that the ground of a War is lay'd upon a Subtiltie which private persons durst not dispute in justice. It is certain in Law, Argumento L. 2. Cod. ff. Quando liceat ab empt. disc. that regularly Contracts are not an­nulled by the defect of accomplishing the Conditions within the time, unless there be some express and particular Clause annulling them in that case, o­therwise the Action, competent to the [Page 152]Actor by virtue of the Contract a­gainst him who hath not performed it would be extinguished: which is cer­tainly false; for he who hath sold an Inheritance, L. n. ff. de Art. empt. and hath not received the Price, hath right to pursue his pay­ment and dammages, but not to re­tract the Bargain; and he that hath not pay'd within the time ceases not to have a legal Action to pretend to the Inheritance by fulfilling the Con­tract, L. 14. Cod. de resc. vend. and repairing the Dammage oc­casioned by the delay. It is the same of a Husband who demands the Por­tion, L. 19. ff. de obl. & act. who is of the same condition as a Purchasour. In this point the French Lawyers do agree; and also upon the particular case of Renunci­ations made simply in contemplation of the Portion, they hold that the de­fect of payment doth not annull them: and the general Rule is, That as the sole Consent of the Parties constitutes the essence of Contracts, it is also their Consent alone which is able to dissolve them; L. 1. cod. quando lec. ab emp. disc. which hath no place neither but when things are still in their integritie.

When the Portion hath not been pay'd, L. 1. cod. de dot. caut. non nuw. no person hath right to de­mand it from the Husband, though in the Instrument (as it happens often­times) it be inserted that it hath been received. Lib. 3. cod. cod. And in this case the Hus­band may propound his Exception, non numeratae pecuniae; of which he would have no need, if by the default of payment the Contract were an­nulled.

All the Allegations which he cites upon this Subject are out of the Case, or else make against himself. That which he urges out of Baldus may help us to convince him of his errour; Bald. in l. neque ma­ter. Pater dotavit Filiam de bonis Ʋxoris: numquid ista Filia habebit re­gressum ad bona paterna? Respondeo quòd sic, quia ista non est cum effectu à Patre dotata. He doth not say that she is not endowed, but onely that she hath not received the effect of her Portion; and this Recourse which he leaves her to the Goods of the Father for her Portion shews that it is truly settled, since the hath right to [Page 154]pretend to the effect of it. But that makes nothing to the prejudice of the Renunciation; on the contrary it con­firms it, by leaving her the right to pursue for the Portion. It is the same of the Allegation which fol­lows in the Dialogue. Bened. in Cap. Raynut. in verb. Duas habens ux­ores.

The Laws which he cites to prove that the Portion is not constituted if it be not pay'd, L. 1. ff. de dot. L. dotale, ff. de fun. dot. and all the others, are evidently understood of the effects of the Portion, which fall to the charge of the Husband; it being unjust that be should be charged with a thing which he hath not received. If pains be taken to examine these Laws, it will be found that they cannot be interpreted in any other sense, and in effect the Portion must needs be constituted, since it is due, and that the Husband hath right to pretend unto it. A thing which is not cannot produce an Action. The Law which he cites, Traject. ff. de Obl. & Act. is altogether out of our [Page 155]case, and applied beside the purpose: It speaks onely of Contracts where­in a Penaltie is expresly stipulated against him who fails to satisfie, L. traject. ff. de Obl. & Act. Poena (utì assolet) ob operas ejus, qui eam pe­cuniam pe­teret, in sti­pulationem erat dedu­cta. and concludes no other thing, but that he is obliged to pay the Penaltie, if he cannot shew that the defect came not by his fault, the Contract as to the remainder continuing in its full vi­gour.

But when the Debtor hath failed to satisfie through the fault of the Creditor, who hath not accomplish­ed on his part the essential Conditi­ons of the Contract, then it is out of controversy that the delay ought not to be imputed unto him, Argumento L. 23. ff. de Act. & Obl. and that he is not obliged, neither to the Inte­rests, nor the reparation of any Dam­mage, although there were a Penalty expresly stipulated in the Contract.

If we would reduce this business to the rigours of the Civil Law, we should have a fair field to prove by their own Principles, that all the de­lay in the payment of the Portion ought not to be imputed to any other [Page 156]partie but France it self, if it be true (as they say, and we strongly do deny) that the Renunciation is founded solely upon the Portion, that they are Inseparables, and necessarily de­pending the one upon the other. It follows then by a clear consequence, that the King neither could nor ought to pay the Portion, untill he had got­ten all the Securities which were by the same Treatie promised to establish absolutely the Renunciation. Where­in they must needs agree, that in the IV ^th Article of the Contract of Mar­riage it is expressed in formal terms that the most Serene Infanta, after the Act of Renunciation which she shall pass before the Marriage, shall make just such another joyntly with the most Christian King, as soon as she is married with his Majestie, which shall be Registred and passed in the Parlia­ment of Paris in the form and with the Clauses accustomed, &c. This Act not onely hath not appeared, but like­wise they make use of their own o­mission against us for one of the [Page 157]proofs of the Nullity; they com­plain that since the Marriage the Queen was made pass a secret Act which France hath not seen. But he doth profess it more clearly in the 23. page, where, albeit he hath else­where confessed the King's Ratifi­cation, he doth not stick to call it in doubt again in these words: But af­ter all this, Spain having made the In­fanta renounce posteriourly to her Mar­riage by secret Acts, which the Spani­ards never durst let come to light, who is it that can imagine that the most Christian King hath validly ratified what he never saw, &c? All this dis­course contains as many Untruths as words: but we must judge them from their own mouth. The most Christian King and Queen were ob­liged by a Contract of Marriage (which is a Member of the Peace) to make a new Renunciation in the same form as the precedent, as soon as the Marriage was accomplished, and cause it to be Registred in the Parliament of Paris: He denies [Page 158]that this was done, and declares that the King never saw it: He maintains that the Portion was necessarily and inseparably tied to the Renuncia­tion; they have not satisfied this ne­cessary and inseparable Condition, and for their failing to have satisfied, they will needs impugn the Renun­ciation because of the delay of pay­ment, which could not be accomplish­ed until that they had given the Se­curities requisite for the Renunciati­on. We leave it therefore to be judged of, to whom the delay of pay­ment is justly to be imputed, which hath been offered divers times, and is offered to them at present, if they would but perform the Condition which was promised.

Moreover it is clear in Law, that the payment of a Debt may be re­tained by way of compensation o [...] another liquidated pretension. And so was it practised at the payment o [...] the Portions of the two Princesses Anne Infanta of Spain and Elizabet [...] of France, married to Philip the IV [...] [Page 159]and Lewis the XIII ^th. It is certain that in the VI. Article of the Peace his Majestie doth absolutely renounce all his Rights and Pretensions upon Alsatia. This Renunciation is founded upon a Proviso much more efficacious then that which is contained in the Queen's, which cannot be imputed to any other cause then that which is expressed in the words following; By means of which Renunciation his most Christian Majestie offers to satisfie the payment of three millions of livers, which he is bound to pay unto the Arch-Dukes of Inspruck.

This Obligation is contained in the same Instrument of the Peace, which is all but one Deed with the Trea­tie of Marriage and Renunciation, by which the Portion is promised: the one and the other are equally ob­liging. If the most Christian King have been able to dispense with him­self without breaking or annulling the Treatie, he cannot pretend that the delay in paying of the Portion is more rigorously interpreted. There [Page 160]was no cause on our part which hin­dred him from satisfying this Obli­gation. It serves for nothing to say that it was not the King to whom he owed this summe, since it concerned the King that it should be pay'd, that it is he who hath renounced, and that it is he to whom the Promise was made in the Treatie; and conse­quently it is to him that the most Christian King hath contracted the Obligation to satisfie the most se­rene Arch-Duke.

By these Principles the second Ob­jection falls to the ground of it self: Though we should acknowledge that the Infanta hath not been endowed with her Paternal Goods, the Re­nunciation would not cease to re­main in its force, as being established upon more powerful Foundations then that of the Portion; and at the worst the Queen would not have in this case any other right then to pre­tend a Legal Portion.

But to shew that our Right a­bounds in Reasons, and that on which [Page 161]side soever it be attaqued, they can finde no weakness in it; I will briefly demonstrate that all this discourse which he urges so strongly is built upon a false Supposition.

The Queen was provided not one­ly according to the practice accu­stomed to the Princesses of Spain, but much beyond that, as it appears by the very Deed of Renunciation, in these terms: It is a very competent Por­tion, and the greatest which hath yet been given to any Infanta of Spain, and this in consideration of the Per­son of the most Christian King. Por­tions, as I have already said, are not regulated betwixt Kings by the esti­mation of the legal Portion, but by a Custome which they establish in their Royal Families, which passes in ordinary style, and is subject to no Controversie: else to take it in ri­gour, the Princesses of France would have been very ill provided with five hundred thousand Crowns. The essential reason of this Custome is, because the Princes, who are the [Page 162]Authours and Interpreters of Laws, consider the Soul more then the Body, and without staying upon words ought solely to take hold of the Reason from which they have taken their first beginning. Now it is cer­tain that the Portion given in Marri­age is instituted to help the Husband to undergo the charges of the Mar­riage, and the Legal Portion to keep the Children out of necessity, and af­ter the death of the Father to supply the defect of the Aliment which he did owe them whilst he lived. All these Reasons do cease amongst great Mo­narchs, whose high Fortunes shelter them from ordinary Wants, and who ought to propose unto themselves in their Marriages more noble and solid Interests then that of a petty summe of Money. This is the reason why they do rarely come to the discussi­on of Goods, the supplement of Le­gal Portions, Inventories, and other such ways of redress which are in­troduced in favour of private per­sons, and are in respect of them but [Page 163]meer Trifles; but rather content themselves with that which the Cu­stome of those Courts with which they treat hath established for this purpose, esteeming it to be much be­low their Honour to cheapen a Wife, and to make it appear that they seek any other thing in her but Greatness and Vertue. In fine, the most Chri­stian King did content himself, the Queen remained satisfied with it. All this did pass by a Treatie of Peace into the strength of a publick Law; there is no more any remedie.

I say yet farther, that she hath been endowed with her Paternal Goods in two sorts. The one, be­cause all which was granted unto the most Christian King by the Treatie of Peace was done in contemplation of the Marriage, as the Marriage was concluded solely in order to the Peace. It is a reciprocal Relation, an inseparable Connexion, one and the self-same Treatie, Cause, and End; they cannot possibly be divided with­out overthrowing the whole foun­dation [Page 164]of the Peace. His Majestie hath sacrificed so many fair Provin­ces to the Satisfaction and Good for­tune of his Daughter, and the Infanta gave up her Pretensions for the good of the State, to the Happiness of this Marriage, and to the Gratitude which she owed to the Bounty of her Father. The Renunciation was reciprocal; that of the most Serene Infanta to her Pretensions was accompanied also with the King's to so many rich Do­mains, and even to the Right which he had to Alsatia. Nor can it be presumed with any apparence of Reason, that he would have devested himself with such facility of so great an Estate, if he had not been invited thereunto by the Love of his Daugh­ter, and the desire to see her reign happily, by heaping Benefits and Satisfactions upon the King her Hus­band. And if there remained any doubt or ambiguitie as to this, the presumption is in favour of the Fa­ther.

Before I do enter into an exact [Page 165]Account with such severe Mer­chants, 1. Fin. Cod. dot. prom. Alex. in ad Bart. in d.l. .. in l. 1. ff. Soluto Mat. I must first declare that the specification of the Portion contain­ed in the Treatie of Marriage was not the square of the late King's Bountie, and was thus expressed one­ly to satisfie the Forms used in the like Treaties, according to the style of the Court; but it hath extended it self far beyond that, to considerable summs of money which he gave her in Jewels, Plate, and Silver, and to what else could be found rarest in all his Kingdoms: and that she her self doth avow in the Renunciation, that in consideration of so many Bounties, she did renounce with all her heart all her Maternal Goods, not onely by way of Renunciation, but also of Donation amongst the living, regard being had to all those Benefits, In the Act of the Re­nunciation pag. 14. and because he desires and procures her Sa­tisfaction and Advantage with so much love, having a joynt regard to the Pub­lick, &c. This Renunciation was covenanted and agreed with the King of France preliminarilic, and [Page 166]before any other Condition was treated of. This is evident, because the Marriage could not be treated of until the Obstacle was removed: from whence this consequence is drawn, That whatsoever the King endowed the Infanta with by way of Portion was purely out of his own Stock.

However, if it behaved us to come to a Citizen-like Account, one might deduct with Justice from the Mater­nal Goods all that was expended for her Maintenance ever since the death of her Mother, being certain that whenever the Maternal Goods do exceed the value of the Portion, the Father is really obliged to supply it out of his own: but he may deduct the Aliments, which he is not obliged to give when the Daughter is endow­ed with her own proper Goods. Bart. ad L. libertis, § 1. num. 3. ff. de Alim. L. si quis, § si vel pa­rens, ff. de Lib. Agn. If we would draw this into an Account, it would be found that what hath been already received doth far ex­ceed the Debt. The King did inherit from Prince Balthasar: his Son all his Maternal Goods, which, according to [Page 167]the Law of Spain, ought to return to the Father. The Law which de­prives the Fathers and Mothers of this Succession in case of Second Mar­riages is reproved by the Canons; it never had other cause or reason, then to put a bridle upon Marriages which are made out of Covetousness to the prejudice of the Children of the First Bed. But the Second Marriage of the deceased King was an inevi­table Necessitie of State, the univer­sal desire of the People, and a pre­cise Obligation which he owed unto his Subjects and his House. Monarchs should act by Principles quite diffe­rent from those of the vulgar; and if one would tie them in publick Acts to the ordinary Laws, all their Con­duct would be disordered, by ren­dring of them uncapable to provide freely for the publick Necessities. Possibly the Jewels were not deli­vered in specie to the most Serene In­fanta; but threefold more at the least hath been given her. It is not the custome of Kings to take Acquit­tances, [Page 168]nor to keep Registers of all that they bestow upon their Daugh­ters; they pour out upon them with full hands, without account and with­out measure: they are not accustom­ed but to Treaties depending upon sincere faith, justly scorning those little Formalities which are not esta­blished for them.

But though all this were not so, is it a matter which merits all this stirre, that all Europe should be troubled, and a War raised again, which hath cost so much bloud, so many tears and Desolations to Christendome? Though the most Serene Infanta could not have renounced her Maternal Rights, all she could then pretend would be to be repaired upon this Head, L. 1. ff. sed mihi de verb. obl. Ʋtile per inutile non debet vitiari. We see it almost in all Contracts which have any defective part, the Body doth not cease to subsist though some Member of it be cut off, providing the substance of the Contract be not al­tered. This is a general Rule which can suffer no exceptions? but when [Page 169]the two Members, whereof the one is defective and the other legitime, L. 7. ff. d Arb. are so inseparable that the one can­not subsist without the other, or that the Parties have expressly and neces­sarily joyned them together in the Treatie by some particular Clause. But in this present case these are two things of a different nature, which have nothing of common to both; the one is a Right acquired and pre­sent, and the other an uncertain hope; they are derived from two several fountains; they concern different mat­ters, and of great inequality as to their importance; the one doth not de­stroy the other: the one is a princi­pal, and the other accessory; the one a Domestick, and the other a matter of State: in a word, they can­not be mixed without bringing all things into confusion.

He cites two Texts upon this Sub­ject which do make absolutely for us: Bened. in cap. Ray­ [...]ul. in Ver. Duas ha­b [...]ns uxores: Non excluditur per Renunciationem nisi à successione dotantis; unde si de propri­is bonis Filia suerit dotata, non est ex­clusa: [Page 170]His meaning is, that she is not excluded from her Maternal Goods although she have renounced them, but that the Exclusion remains firm as to the Goods of him by whom the Portion is constituted, against whom she hath an Action to make him pay it out of his own Estate.

The other passage which he alledg­eth out of Covarr. doth yet better ex­plicate the former: Erit intelligenda haec Conventio in hunc modum, ut mille aurei sint dandi ex bonis Paternis, non ex Maternis. Whereby it is seen that the Renunciation is not annulled, but that the Daughter hath onely recourse for the Portion promised her against the Father's Goods. He limits far­ther even this Decretal, when the Daughter hath confirmed the Renun­ciation by Oath; unless there be Fraud on the part of the Father, or some notorious Laesion on the part of the Daughter: and we have made it clear that they cannot here oppose to us either the one or the other.

It would require great Volumes [Page 171]to make appear by parcells the Fal­sities it matter of Fact, the Allegati­ons out of season, the captious So­phisms, and the continual Cavills which are packed up into this Work: It is a business of more time and lei­sure then the trouble in which they have put us doth allow. I think I have said enough upon this Subject to con­vince all reasonable understandings: and to make an end of confounding our Enemies, I will content my self by concluding with this Argument: That if they will reduce, against all manner of Reason, the publick Trea­ties made between Kings to the Forms and Subtilties of litigious Pleading, they ought to follow the same Rules in their Proceeding; if they do in­tend to make a Process of it, they should not make it a War. Never yet was it seen that Legal Portions or Reliefs were pretended to with a Dagger at the throat, nor Contracts rescinded by stroke of Sword, nor the first Citations made by forty thousand men. Either let us decide this matter [Page 172]by publick Right, and by the Faith of a solemn Treatie made betwixt Crown and Crown; or if they have a mind to bring it to the formalities of the Barr, let us not stray from its style, which doth not permit Violence to usurp upon Justice: and that which the Kings of France do not practise towards their own Subjects when there is any Difference be­tween them to be decided by the Ci­vil Laws, they ought not to attempt it against a Monarch who doth not hold of them, and who is ready to refer his Cause to the Judgement of all the Princes of Europe. But they are far from this thought, they'l have no other Arbiter but Arms; and if in appearance they do sometimes call for the assistance of Justice, it is but to make it serve as an instrument of their Violence: They make use of her own Laws against her self; they make her raise Difficulties, but will not suffer her to resolve them; they are con­tent she plead, but not that she decide; and at the same time when they make [Page 173]her enter into Combat, they tie her hands, they shut up all the approches to her, they will not permit her to pronounce, and do so pervert the whole order of things, that to esta­blish a Chimerical Right, they make it a private Business, and that they may put it in Execution, they make of it a matter of State.

ARTICLE V.

THE essential Sovereignty is in God, as in its source; those which we do reverence here below are Ri­volets that flow from thence: It de­scends from Heaven to Earth, and [Page 174]spreads it self in divers fashions a­mongst the Creatures, according to the Subordination which is necessary for the Government of the World. It communicates it self in the ordina­ry way principally and immediately to Monarchs, to Princes, and some­times unto the whole Body of the People, which remits it voluntarily to those Magistrates whom they chuse, and reduces it into the form of Government which seems to be fittest for their happiness. Some of these are absolute, and hold it of God solelie; others are Sovereigns in re­gard of their Subjects, but with some tie of Dependencie upon a Superiour Power: and as those do derive im­mediately from the Infinite Power above; so these do proceed gradually through the Chanel of that Sove­reignty to which they are subordi­nate; this is its Rule and origine, having no other Power nor Jurisdicti­on then that which is conveyed unto it through this Organ, because being nothing of it self, but according to the [Page 175]will of the Instituters, it can exercise no other Right then what it hath so received from it. If Sovereignties were regulated by Local Customs, it would be as monstrous a thing as if Kings would prescribe limits to the Providence of God, or as to see Streams run back upon their Foun­tain: The Order of the World, which subsists onely by these degrees of De­pendencie of the least upon the great­er, must be absolutely overthrown: the Servants would become Masters, the Sovereigns should be Subjects, and the hereditary Sovereignties be in the same condition with Villages and Farms. The Eternal Law, which is the very Wisedom of God, is the rule of all Laws: and as that is proper­ly the Idea of the Law of Sovereigns, so that of Sovereigns is the Model of particular ones, which take from it all their strength and vigour. If an Equal cannot have any command over his Equal, it would be much more un­reasonable that the Inferiour should have it over him whom he acknow­ledges [Page 176]for his Master, and that the par­ticular Customs established between Subjects should prescribe unto their Sovereigns the order of their Succes­sions. All that there is of Jurisdicti­on and Power in subaltern Fiefs, is found in a more excellent manner in the commanding Fief: But all that there is of Servitude, Dependencie and Subjection in them, regards not the Sovereignty, and cannot reflect upon it from beneath upwards; these are Restrictions and Limitations which cannot proceed but from a more elevated Power. So that the Sovereign Fiefs which hold of a higher Jurisdiction can receive no limits to their Authority but from the direct Lord, who is also to regu­late himself therein according to the extent of that Power which he hath over them, and according to their first Institution; for he may not impose new burthens upon them farther then those upon which from the beginning they did agree in the regulating of the Fief.

To discourse solidly of this matter, two things must be carefully exami­ned and taken from their true founda­tion.

The one is the nature and the first Origine of the Dutchie of Brabant, and of the other Provinces to which France doth pretend: the other is the Origine, the quality, the end, and the extent of the Local Custom, which hath introduced the Right of Devolution.

As to the first, it is out of contro­versie that a part of the Dutchie of Brabant, though Sovereign in it self, doth in some sort hold of the Empire; I say, in some sort, because as well by its own nature, as by its Privileges, it is exempt from many Subjections which are proper to other Imperial Fiefs, though Sovereigns and Lor­ding. This then must be considered in two manners; the one in the Depen­dence which it hath of the Empire, and the other in the Sovereignty which it hath over its Subjects. Tou­ching the first, it cannot extend be­yond [Page 178]the terms which are expressly prescribed by the Investiture. So that it cannot receive from any thing else any other restriction of its Pow­er, unless it doth voluntarily impose it upon it self. And for the second, it belongs to it to establish Laws, and communicates its Power to its Inferi­ours as much as shall be thought good, and restrains it within just limits.

Moreover, although these be Sove­reignties in themselves, they must al­so be look'd upon as chained together by an undissolvible tie, and as annex­ed to the Body of the Monarchy of which they are the Members and the Parts.

If we consider them in themselves, we shall find that in their Successions the Males ought to be preferred to the Females; and that this Order hath been so regularly observed in all times, that not so much as one exam­ple can be shewn where the Daugh­ters have succeeded to the exclusion of the Males of the same Line; as may be seen in the Genealogical Ta­ble [Page 179]of the Trophies of the Dutchie of Brabant, written by Christopher But­kens. I say more, that the primitive Institution of the particular Fiefs of Brabant was made in favour of the Males, and that the Right of Devoluti­on was afterwards introduced among them for particular Ends; so that if the Devolution doth hinder them from Alienating, it is but an Obstacle introduced by private persons, which hath insensibly gotten the force of a Custome among them; and being onely a particular Right, it can nei­ther tie the Prince nor the Sovereign­ty, because it comes but from a simple Custome and Consent of the Subjects, who have no Jurisdiction over the Su­periour Power. So that to judge of the Right of Succession of the Lord­ing Fief, one must look into the first Original thereof, and into its proper nature independently of all that is in­feriour to it.

If we consider the principal End of this ordinary Custome, which pre­ferrs the Males before the Females [Page 180]even in the Succession of particular Fiefs, we shall find that it is for the conservation of Noble Families, for fear their Estates should pass to and be confounded in some other House, to the prejudice of them who are a­ble to uphold the Splendour, main­tain the Name, and perpetuate the Line of them. Though this benefit in some sort do redound to the good of the State, it is but by an indirect reflexion, and by the relation of the private to the publick; and 'tis for this that it may be derogated from in consideration of another private good, if it be esteemed to be equal or of greater importance then the other. But the conservation of So­vereignties is a good which directly concerns the State, against which no private Reason can prevail; other­wise what Disorder would it be in the World, if we did see Sovereign­ties liable to the change of Masters every moment, and pass under ano­ther Dominion? How many causes of War and Revolutions would arise [Page 181]from such a strange Constitution, which could not but offend all Laws and good Politie? How unworthy a spectacle must this be and what an heart-breaking to faithfull Subjects, to see their Princes and all their Line reduced to povertie, whilst a Daugh­ter should elevate to their Throne some Stranger-Prince? If these in­conveniences be compared with the particular good which arises from the Devolution, it will be found that the one is but an Atome in comparison of the other; and that there is no kind of appearance that the very People, though it had been in their power, would ever have been such enemies to themselves, as to have exposed themselves to all these dangers, by subjecting their Prince to their Custome, and taken pleasure to live under a Dominion suspended in the Air, and exposed to all Winds. On the contrary, Sovereigns in one thing seem to be in a worse condition then private persons; because in the great­est part of States which are well go­verned, [Page 182]they cannot alienate any par­cell of their Dominions, they are in some kind Slaves to the Publick good, they cannot doe advantage to a youn­ger Brother to the prejudice of the Elder, and are ordinarily so tied to the regular order of Succession, which preferrs the Males and the Eldest, that they cannot follow the motions of their Affection to the prejudice of this Rule, which the Safety of the State renders not to be dispensed with: how then can it be overthrown and destroyed by a local Custome, in­stituted to an End which cannot be put in the balance with the Utilitic which proceeds from this publick Law? In effect, If we look upon the order of the Successions of the Dukes of Brabant, and of the Princes of the other Provinces in the Netherlands, it will be found that they have alwaies descended from Father to Son, as long as that could be had, and that in no case they have been divided nor shared among many Children, though there have been often sundry Males [Page 183]of the same Bed. Butkens, pag. 107, 113, 133, 204, 270, 232, &c. As is seen in God­frey the First, who left two Sons of his first Marriage, Godfrey and Henry; Godfrey his Son succeeded singlie to the Dutchie: and of three Sons which he had, Godfrey the Elder, sty­led the Third, succeeded alone: he had two Sons by his first Wife, Henry and Albert; the Elder onely succee­ded to the Dutchy, as Henry the Third had done; and the same throughout the whole Succession. From whence I draw two Consequen­ces: One, That the Sovereign Fief is by its nature indivisible; which shews that the principal end is to conserve it entire in the Family, which were un­usefull, if it must descend to the Daughters of the First Bed, to the exclusion of the Males; for in this case it would import very little that it were dismembred, and it would be more just and more covenient to di­vide it, at least among the Children of the same Bed. The other is, That by this Indivisibilitie it is different from particular Fiefs, which, accor­ding [Page 184]to the Feodal Customs, are par­table beyond the Forrest at the choice of the Eldest; and on this side, though there were but one Fief, the Eldest hath but two Thirds, and the rest belongs to the Brothers, excepting to the Eldest the Castle, and a Ca­pon's flight: which being unpracti­cable in a Sovereign Fief, Chap. 21. of the Feo­dal Cu­stoms of Brabant. 'tis evi­dent that there is a manifest difference, and that the one hath for its end onely the particular good of Fa­milies, and the other the good of the State, which chiefly consists in keep­ing the Sovereignty as long as is pos­sible in the same Line, that it may not be exposed to continual Changes. So that being of a different nature, we cannot draw any consequence from the Fief to the Crown, nor subject the Lording Fief to the Local Cu­stoms, which be of another nature and for other ends. This difference is the more remarkable, by reason that the subservient Fiefs which Prin­ces do possess are of another nature, and subject to other Laws then the [Page 185]Sovereigntie, and do not depend of one and the same Jurisdiction; as is to be seen in Butkens, in the Char­ters of the year 1222. And it is out of doubt that these may be divided, and the other not, as is clear by the XXI. Article it self, which I cited before: and even the Customs of Lovain were decreed with this Clause; Without prejudice to the Rights and the Superiorities of the King. Which clearly demonstrates, that in the toleration or approbation of these particular Customs, the Sove­reigns never meant to subject their Sovereignties; and that the Conse­quence which they draw from the one to the other cannot be of vali­ditie betwixt two such disproporti­onate things. In the Customs of Bra­bant and the other Provinces, which the King hath approved, this Reser­vation is ordinarily found, Without prejudice to our Rights and Authori­ties. A notable difference is yet to be observed here, which is, that pri­vate persons may derogate and do [Page 186]daily derogate from the Devolution by their Treaties of Marriage, or by Testaments, to preserve the free dis­position of their Goods to themselves, and to hinder the Daughters of the First Bed from coming to exclude the Sons of the Second; which Prin­ces have never practised, though much more concerned in conserving their Successions in the Masculine Line, and would not have failed to use those Precautions as well as pri­vate persons do against this Custome, had they believed that they were subject unto it as others are.

We shall be yet more confirmed in this opinion, if we consider that, far from having a minde to dismember any of those Provinces by virtue of such a Custome, they united them together by an inseparable Concate­nation, by a Sanction established by the Supreme Authority, and received by the universal Consent of all the People: so that it hath passed ever since that time, and is still held at pre­sent, to be a Fundamental Law. I [Page 187]will satisfie in the following part of this Article some light Scruples which the Author of this Writing forms thereupon: In this place it shall suffice me to deduce from it an evi­dent Argument, that the intention both of the Sovereign and the People hath been much opposite to that of subjecting them to Customs, which would expose them upon all moments to the danger of being dis­membred and distracted into other Families.

In fine, they are Members of the Monarchie of Spain; and though they do live under their own Laws and particular Customs, and enjoy peaceably their own Privileges; they are notwithstanding Members of it, and depend upon it as Parts of the Whole: so that if there were no Law nor Custome established for the Succession of their Sovereignties, it would be much more just and conve­nient to regulate it by the Law of the principal Kingdom whereunto they are Accessories, The Dia­logue, pag. 39. then by a Local [Page 188]Custome, which hath no place but a­mong Subjects: and if this same Au­thour doth avow, that where there is no Law established for the Succes­sion of a Sovereign Fief, it may be regulated by the Laws of the neigh­bouring States; we ought here with a far juster title to conform our selves to the order and practice of other Kingdomes to which they are united, and under the support and the protection of which they are maintained.

Here may be observed (in passing) the incompatibilitie which we meet with in the Discourse of this Wri­ter: He will have it that the So­vereign Succession of these Provin­ces is so to be subject to the Local Custome of the Devolution, that it can no ways be dispensed with, nei­ther for the good of the State, nor by the Renunciation of her to whom the Right is devolved, making a simple Custome of private persons pass for a Fundamental Law of the State: but by the same Discourse it [Page 189]evidently follows, that these Pro­vinces neither can, nor ought ever to fall under the Dominion of France, because the Salique Law, by virtue whereof they do pretend that all their new Acquisitions must be sub­mitted to the same Rule to which the ancient Dominions are subject, would pull up by the root this very Devolution, which at present they will have to be unalterable, and also totally exclude Women from the Right of Succession, though they were the sole Heirs: so that they will establish this particular Right in our Provinces, but onely to destroy it by Incorporating them instantly into their Kingdom. They make use of it to acquire them, and will pre­sently overthrow it to conserve them; and do erect this Right in their own favour, but onely to annihilate it afterwards to our dammage. This is an effect of their Nimbleness, which knows how to apply wittily all the Laws to their own use, that they may make them serve as Instruments to their Ambition.

It remains now at present that we look into the nature and qualitie of this Local Custome, which it is cer­tain is not of the first origine of Fiefs, since the disposition of them in favour of Males is directly oppo­sed thereunto.

It is yet more certain that it doth not flow from the Sovereign, because he himself in many places hath not approved of it, and that the same Approbation which the People have required of him is a sure mark that it hath taken its beginning elsewhere then from him; nor can it be said that it hath been formed upon the model of Sovereign Succession, which of its own nature was purely restrict­ed to Males, and hath not been ex­tended to Females, but by a privi­lege limited onely to the deficiencie of Males. It is then to be concluded, that it hath insensibly slipt in by a Cu­stome which some particular Conve­niences have introduced. Neither is it universal, nor every where uni­form, even in Brabant: many Districts [Page 191]are totally exempted from it, and o­thers have received it with divers Limitations. The City of Bruxells, that of Antwerp, with the Country of Ryen, the Territorie of Turnhout, Hoochstraten with its District, a part of the Countrey beyond the River of Maese, and the whole Quarter of Ni­velle, are not subject to the Devo­lution. And this proceeds from no other cause, but that they have not received this Custome; which in it self is of such a nature, that it is of no force but in those places where it is approved of by the Consent of the People. How then can any extend to the Sovereigntie, with­out the Consent of the Prince, a Cu­stome which doth not oblige the Subjects but in so farre as they have expresly desired? How can a pub­lick and Fundamental Law be made of a Custome which is not universal, nor established by the Sovereign, and which is tied to the particular circum­stances of Goods and Places? And if the Authours of the Dialogue and [Page 192]the Treatise of the Queen's Rights do avow the Devolution to be a kind of Penaltie, Fol. 50. how can it be conceived that the Prince should be subject there­unto? and that the Fiefs subservi­ent can impose by the example of their Custom a Servitude on the Crown? Never in good Logick can the Argument conclude de mi­nori ad majus, unless it be in matters of Favour.

This Custome then cannot pass for a Law, because it doth not pro­ceed from the express Ordinance of the Prince, but onely from the tacite Consent of the Subjects, who had no other object therein but their proper Interests. The Prince con­tributed nothing towards it but a simple Toleration, and, far from in­tending to oblige his own Sovereign­ty to it, he hath not absolutely appro­ved of it, nor generally in all places. The Feodal Customs of Brabant, be it either for such Fiefs as are on this side the Forrest, or them which are beyond it, and which depend [Page 193]upon the Feodal Court of Lothier or of Genap, were never approved nor decreed, although they were pre­sented to the Governour to that pur­pose: and in some others which are approved, the Prince, as I said be­fore, doth expresly except his Rights and Preeminences, reserving to him­self the power to change, alter, and innovate them as he thinks fit; which he could not doe without the consent of the States, if it were a Fundamen­tal Law which did tie up his proper Sovereigntie. And though by way of supposition we should acknowledg that this Custome extends it self to the Sovereigntie; it were ridiculous to pretend that he may not abrogate it in his Familie, since he hath the right both to change and innovate it in those of his Subjects.

But if it were granted to them that such like Customs do reach un­to Sovereignties, they would give us a just Right to pretend unto Bretanny and the Dutchie of Burgundie, where Women ought to be admitted to the [Page 194]Succession of Fiefs, not onely by the Custome of the people, but expresly also by the Law of the State, in re­gard of the Sovereigntie it self: to which purpose it will avail nothing to alledge the Salique Law, which is Apocryphal among the most learned, and which at most cannot transcend the limits of the ancient Domains of France, nor can change but by unjust Violence the nature of the Provinces which they do annex to their Crown; but if that might be done by virtue of the Salique Law, why should it not be lawful for our King to impose on those Provinces which he hath acquired the same Law which he doth practise in Spain?

Having manifestly proved by so palpable Reasons that the Local Cu­stoms as well of Brabant, as of the other Provinces pretended to, cannot be the Rule of Sovereigntie; it re­mains that we take notice by what other legal ways they may be regu­lated: and this cannot be by any but onely the following.

• 1. By the nature of the said So­vereign Fiefs, and their first Insti­tution.
• 2. By the ordinary Custome of the Sovereign Fiefs of the Empire, of which some of these Provinces do hold.
• 3. By the End for which they are established, and by the Reason of State, and the publick Interest.
• 4. By the ancient and continual Practice in the like Successions.

As to the first, it is undoubted that the Sovereign Fief of Brabant in its first beginning, and by the Establish­ment of the Emperours, was onely restricted to the Males, to the entire exclusion of the Females; and that since, by the concession of the same Emperours, it was extended unto Daughters, but onely in default of Heirs-male, as it is expresly recorded in the Imperial Constitution.

But that of the Emperour Charles the V ^th, made in the year 1549, Corst. Phil. Rom. Reg. An. 1204. doth entirely stop the current of all the Difficulties that could be formed on [Page 196]this Subject, by the indivisible Union which he established among all the Provinces of the Low-Countreys. It is here where the Authours of these Libells lose the Card of their Com­pass, and blunt the points of their darts, endeavouring all in vain to shoot against this Rock. This Con­stitution is both of the Emperour and of the proprietarie Prince; 'tis universal, and comprehends all the Provinces; 'tis solemn and authen­tick, by the general Consent of all the Estates, and the subscription of all the Grandees, of the principal Of­ficers, and the most illustrious No­bility; it is established, because it was not onely received, but al­so earnestly solicited by the com­mon wishes of the whole People: 'tis a publick Law, which proceeds from the Sovereign Authority, it concerns the Crown immediately, it is founded upon the publick Utility, and hath for its chief End the Preser­vation of all these Provinces under one and the same Lord: The terms [Page 197]are clear: Desiring above all things to provide for the Good, Quiet and Tran­quillity of our Countreys on this side, and to keep them together in one body, and that they may be inseparably posses­sed by one Prince alone. Behold a publick, necessary, and inviolable Cause, which directly regards the Principalities. But, on the contrary, the Custome of the Devolution is conceived in terms that cannot be otherwise applied then to private ones; If either a Man or a Woman have Children, &c. Were the Prince comprehended, it would have been expressed in words of more reve­rence, and clearer: but the notice of the Custome expresly saith, that it comprehends nothing but the Fiefs which hold of the Duke of Brabant, and (as the Writer himself confes­seth) it is made in favour of the First Marriage, and out of the hatred to Second Beds, which ought rather to be favoured then discountenanced in the person of Sovereigns, chiefly when they are destitute of Heirs-male. [Page 198]But let us go on farther to the terms of the conclusion of this same Sanction: We do enact and decree, that in all our said Countreys Representation shall have place in what touches the Succession either of Prince or Princesses being capable to succeed. All this Clause must necessarily be referred to the former, as built upon this foundation, To conserve these Pro­vinces in one Mass together, &c. Both the one and the other do totally ex­clude the Devolution, if it be to be understood in that form which these Writers do pretend. Moreover, it is evident that this Union of Estates cannot consist with the Devolution, because that this Custome is not ge­nerally established in all the Provin­ces which are comprehended in this Union, whereby it might fall out that the Daughters of the First Bed should carry away a part of them by the Devolution, and the Males of the Second Marriage by the Law of the Countrey should possess the other; and by this means the order and the [Page 199]end of the Sanction should be abso­lutely overthrown.

I do profess that, reflecting upon all these things, I find my self seised with prodigious astonishment, to see that these Writers do not blush at the libertie which they have given to their pens, in contradicting of Truths so manifest and so generally receiv­ed, and that they are so effronted as to dare vent unto their own King and to the eyes of all Europe these extravagant Propositions: Dialogue, pag. 46. That there is nothing more contrary to History, nor to the desires of all the Provinces, then this Sanction which unites all those Provinces together; That this Empe­rour had truly thoughts of doing of it, but that he found so open a Repugnancie against it, and so invincible a one in the inclinations of the Countrey, &c. That he quitted it very soon, &c.

Nothing can be more falsely al­ledged: This Sanction was received, and is to be seen still Registred in all the Chambers of Accounts in the Low-Countreys. But the Authour takes [Page 200]up a mistake, or else will impose up­on the Readers who will rely upon his faith; he confoundeth another Design of Charles the V ^th, from whence he desisted, with this of the Pragmatick Sanction, which he finish­ed without contradiction. It is true that this Prince had some thoughts of erecting all these Provinces into a Kingdome, to the same Custome and Politie; but having met with great difficulties about the diversity of Cu­stoms, Privileges, Seals, and Mea­sures, he held it not fit to put it in execution: but as to the Union con­tained in the Pragmatick Sanction, the diversity of Laws not extending it self to the Sovereigntie could not hinder the Union, seeing that in France it self, where all the Provin­ces are inseparably united to the Crown, they do notwithstanding live under their particular Laws, which in many places are very diffe­rent; and when we say they are uni­ted, we do not therefore pretend that they are reduced into one Province, [Page 201]but that they compose all together one aggregate of many Bodies, which cannot be disjoyned. So that 'tis properly to distribute Gape-seed, and amuse all Europe with the tricks of Jugglers, in alledging for the proof of the contrary, that the King in his qua­lities uses all the Titles of these Provin­ces severally; as if by having united them he had lost those Titles, and were less Count of Hainault for ha­ving rendred it inseparable from the Dutchie of Brabant. If the Divisibi­lity could be inferred from the diffe­rence of the Titles, it is clear that how succinct soever those of the most Christian Kings be, it might be con­cluded by the same reason, that that part of Navarre which they do pos­sess might be separated from France, whereunto notwithstanding they will never condescend. The passage of Grotius which he alledges, but doth not quote, is not to the purpose, and toucheth not the fact in question, but onely the Design of Charles the V ^th, which presently I have related. He [Page 202]speaks of the change of the state of the Government of the Countrie, and not of the Union and Indivisibility of the Provinces, which may be established among them without any alteration in the Form of their Government, and without changing any thing of the particular Customs, unless it be in what they have of inconsistent with this Union.

It is with the same confidence that he presumes to say, that this Pragma­tick doth not contain in its dispositive one word of this Ʋnion. And what would then the first Clause which I cited operate, which is not onely dis­positive, but the ground of all the o­ther Dispositions which are contained in the same Law? It is the Cause and the End of it; and the sole Reason why the Emperour established the Representation is, to preserve the Countries in one Mass, and that they be inseparably possessed by one Prince alone. This Representation, in which he labours to lodge solely all the Dis­positive, is but a pursuit and a means [Page 203]to attain to the principal End which he hath proposed to himself of the Indivisibility: but by the discourse of this Authour, the Cause would be of less strength then its Effect, the Ac­cessory would have the place of Dis­positive, and the Principal serve one­ly as a simple Narration.

This Truth is confirmed by the Constitution of Charles, An. 1549. whereby though he doth confirm the Succession of the Daughters for want of Heirs-male, he supposes notwith­standing for the ground of the Sancti­on, Nos per Pragmaticam Sanctionem super Jure Successionis universalis ha­rum Provinciarum Inferioris Germa­niae patrimoniali ac haereditario Jure ad nos pertinentium providere velle, quòd scilicet eaedom Provinciae nostrae in una Massa deinceps beneficio Reprae­sentationis generaliter in Successione Principis locum recipientis serventur, nec ampliùs unquam ab invicem sepa­rentur. And to shew that it was at the desire of the People, he adds, Id quad jam antea à Statibus Geldriae [Page 204] petitum. Whereby two things are clearly seen: The one, That the Re­presentation was not introduced into this Sanction, but as a means for at­taining to the principal End of the Indivisibilitie: the other, That when he admitted the Daughters in the de­fect of Heirs-male, he would yet pre­serve in them the same Indivisibilitie, and that they might not be divided even among many Daughters, as is certain by the words following: Nè scilicet à Ducatu nostro Brabantiae & Comitatu Hollandiae (in quibus Foemi­nae ex antiqua consuetudine succede­runt) distraherentur. And in the dis­positive Clause wherein he confirms the Succession of Women he doth ex­pressly adde this Restriction; non ex­stantibus Masculis haeredibus succede­re possint. Whereby it is seen that in no case they can succeed, so long as there are any Heirs-male.

I should never have done, if I would stop at each of their Cavills: The Declaration which he doth al­ledge of Philip the Second is one, [Page 205]but so ill fitted to the purpose, that it makes me pitty them. He saith that in the Confirmation which he made of the Privileges of Brabant, he de­clared, that the onely Estates that should be united for perpetuity with Brabant were Limbourg, Antwerp, and those beyond the Maese. Here by the way it is to be observed that Limbourg was never united to Brabant, as Stockmans doth note, fol. 174. But what Union soever there might be, should they be so ill Logicians as to inferr from thence, that the other Provinces are not indivisibly united with Brabant? Should it be possible that he should hope to throw dust in our eyes with this petty Equivocation, by the which he confounds and improperly applies the word Union? Antwerp, as he says, was united to Brabant as to a principal Body, to enjoy with it the same Pri­vileges and Seals, and to make up to­gether the Jurisdiction of one Coun­cel: We never pretended that by the Sanction of Charles the V ^th the other Provinces were united after the same [Page 206]manner, nor that they ought to par­ticipate with them in their Privileges. See, I beseech you, what force this Argument hath: Antwerp alone and Limbourg were united to the Dutchie of Brabant, to enjoy the same Privi­leges; therefore the Sanction of Charles the V ^th never intended that the other Provinces and Brabant it self should be preserved in a Mass, to be inseparably possessed by one Prince alone. Antwerp and Limbourg onely shall enjoy the particular Privileges of Brabant; therefore all the other Provinces shall be untied from all Union, and may pass under different Masters. Philip the Second prohibited the Infanta Isa­bella to divide the Provinces; there­fore they were not united. On the contrary, this very Prohibition must suppose that they were united, since nothing can be divided but what is united. It makes my heart bleed to see poor Aristotle so often buffetted, and the whole form of right Rea­soning, which he so ingeniously in­vented, overthrown, On the con­trary, [Page 207]the Prohibition of Philip the II ^d is a Confirmation of the Sanction of Charles the V ^th. And if the Dis­course of this Authour could take place, all the Commandments of God and of Kings might be destroyed: When a Father commands his Child not to be a Murtherer, it might in the same manner be inferred that God hath not forbidden Murther; when a King exhorts his Subjects to Fidelitie, a consequence might be drawn from thence, that they are not obliged to Fidelity by natural Duty and by their Oath; then which nothing can be more irrational.

He goes astray after the same man­ner by taking the Effect for the Cause, when he saith that this Sanction was onely made to introduce the Represen­tation into the Succession of the Sove­reign. Whereas, quite contrary, it appears by the terms before alledged, that the Representation is introduced onely to establish the Indivisibilitie, which he himself acknowledges two lines thereafter, Dial. p. 4 [...]. by a terrible Giddi­ness [Page 208]of head, when he mentions the Cause which gave occasion to this Re­presentation: To hinder that all these Estates, which the want of Representa­tion exposed to too frequent Changes, should not be so easily separated by the diversitie of Customs. We have now no more need of witnesses; habemus fatentem reum: and we ought also to inferr thereupon, that the Right of Devolution being much more subject to produce these over frequent Chan­ges then the want of Representation; since that the Sanction would intro­duce the latter for this cause onely, it is not credible that its intention was that the Prince should be subject to the other, P [...]g. 163. being the same Reason doth more powerfully serve to de­stroy the Devolution in the Sove­reign Succession, then it doth to esta­blish the Representation in it.

In fine, they stumble at every step, and it would require an Herculean pains to help them up again every time that they fall. It seems that they have had no other care, but to make [Page 209]up a heap of Arguments, without discretion and without choice, to dazle rather then to persuade, and to obtain by their number that which they can never hope for from the strength of their Reasons.

The Authour of the Rights of the Queen follows the same track, and loses himself in his own Labyrinth, who is not ashamed to utter this Pro­position; That if the Prince be anci­enter then the Custome, Fol. 168. nothing can be more glorious for him then to submit himself unto it, &c. since it is certain that, in this case, the Custome is but an Emanation of the particular practice of the Sovereign Familie.

Here are as many Errours as words. It is certain that most of the Customs take their beginning from the desire of the People, and from their private advantage; they do frame to them­selves their own Custome, of which afterwards they desire the Prince's Approbation, who grants or refuses it as he thinks good: but by appro­ving it he doth not subject himself to [Page 210]it. Nor is it less evident that divers Customs are convenient for the Peo­ple, which would be most prejudici­al to Sovereign Families; as in effect that of the Devolution would be. It is certain likewise that if the Prince be ancienter then the Custome, he hath already the Right and the Form of his Succession regulated before the Cu­stome, and this Regulation, being a Sovereign Law, can never be altered by a particular and inferiour Consti­tution. He doth profess in another place, Pag. 166. that the Sovereignties have particular attributes which do distin­guish them from other Goods. And in what ought they to be more distin­guished then in that which regards the Succession, which imports more to the subsistence of Sovereignties then any other thing? He himself doth acknowledge it in the same page, as their being Independents; and yet notwithstanding he will make them to depend upon the Custome: Ʋnali­enables; yet he will subject them to a Right which at every moment [Page 211]would be the occasion of their Alie­nation: and Indivisibles; yet he de­nies that the Emperour Charles the V ^th had any power to unite them toge­ther. He adds, that notwithstanding this difference, they have many things common. I do agree with him; but that which they may have of common doth not proceed from the particular Cu­stome. The Comparison of which he makes use to prove it is ravishing and marvellously well applied, 'tis of a Man, who participates together both of the Animal and Reasonable na­ture. See then according to my ap­prehension how he pretends there­upon to form his Argument. As Man, though superiour to Animals, doth participate of their Nature, and hath something in him which is common to them: so the Prince, notwith­standing he is elevated above the People, yet doth not cease to be subject to their Local Customs. Ri­sum teneatis Amici? But to demon­strate by this Principle that the Prince is subject to Local Customs, [Page 212]we must by a Moral which is alto­gether new establish this foundation, That the Senses ought to give law to Reason, and that the Sensual appe­tite must govern the Will; otherwise all this discourse would prove no­thing: this strange Doctrine would make all the Schools rage, and would not take but among the false Secta­tors and the bad Interpreters of Epi­cure. Let us say then, the better to conform our selves to a more regu­lar prudence, that if Man in some occasions ought to raise himself a­bove the Senses, and free himself from the subjection of the inferiour part; it is principally in those Actions wherein the eternal Succession is con­cerned, which is his principal and last End: and that to descend by this Rule from the moral to the politick part, it must be concluded that there is no case wherein the Sovereign ought to be more independent of popular Customs, then in those of the Sovereign Successions, which ought to constitute the Felicitie of [Page 213]the State, and to establish a little kind of Eternity in his Familie.

But I perceive that I my self do goe astray by playing the Philosopher with these Sophisters, and that I de­part insensibly from my first design of destroying their Maximes in one bulk, without tying my self to every parcel of their works. Let us pass then to the second Rule by which those So­vereign Successions are to be measu­red which do hold of the Empire, to wit, by the usual Custome in the Imperial Fiefs.

It was never heard of in the Em­pire that any Sovereign Fief should be regulated by the Local Customs, that it should be subject to the Right of Devolution; and even the greatest part do totally exclude Daughters, and pass to the Collateral Lines in de­fect of Heirs-male.

I have already shewn that the Cause and the principal End of such Successions is an essential Reason of State, which absolutely requires, for the good of the People, and the con­servation [Page 214]of great Families, that the Sovereignties should be maintained as long as possibly may be in the same Line; and that the practice of the contrary would expose the States to continual Revolutions: that this End is incomparably more noble, more e­levated, and more necessary, then that which doth preferr in some places a­mong private persons the Daughters of the First Bed before the Males of the Second: that the Reasons which in some sort may make this Custome tolerable among the Subjects, doth no ways concern the Prince nor the Sovereignty: that Second Marriages, which be oftentimes the cause of the ruine of private Families, are ordi­narily the prop and sustentation of Princes Houses: that that which o­thers doe voluntarily with an intem­perate Incontinencie, these are obli­ged to doe it by an absolute necessity, for the good of the State and their Family: that the Reasons which have given occasion to this Custome have no manner of relation to the Sove­reigntie; [Page 215]from whence it must be con­cluded that the Custome can take no place in the case where all the causes for which it was introduced cannot concurr, and where all the advantages which arise from it are counterba­lanced by greater Inconveniences.

It remains to see what was the an­cient practice, and received in all times and without interruption. The Authours of these Libells, having con­sumed their spirits in seeking from all parts materials to make their Vo­lume big, could not yet find one single Example which is truely comprehen­ded within the fact in question: Let us trie if we shall be more successfull. The Sieur Stockmans cites some very convincing, to wit, Stockm. de Jure devol. cap. 21. nu. 9. the Surrender which Charles the V ^th made to his Son Philip the Second of the Estates of the Low-Countries, calling thereunto, fail­ling of him, the Heirs which he should have of his Second Marriage, to the exclusion of Charles the Son of Philip and Mary of Portugal of the First Bed; to whom nevertheless as well as to his [Page 216]Father, because of the Widowhoods of Charles and Philip, the right of Suc­cession had belonged, if the Devoluti­on could have taken place in the So­vereign Succession. As also the Do­nation that Philip the Second made to his Daughter, the Infanta Isabella, un­der Restrictions which were altoge­ther inconsistent with the right of De­volution, and which could not have been inserted to the prejudice of the Dutchess of Savoy and her Successors. And if the Devolution had taken place in Sovereignties, the Pretensi­on of the Queen of France would have been at this day annihilated by that of the Duke of Savoy, who would be the true and lawfull Successour to it. He cites also other Examples, which the Reader may see in the same Chapter: but, because they are all of Charles the V ^th downwards, I will resume the bu­siness from a higher source, that I may be the abler to prove the Antiquity and the Continuation of this Custome.

William, Butkens Troph. de Brab. fol. 627. Son of Godfrey the III ^d Duke of Lothier and Brabant by Imaine [Page 217]de Los his second Wife, and Brother to Henry the Son of the same God­frey of a former Marriage by Mar­guerite of Limbourg, had for his share the Lands of Perweys, Ruys­broeck, and others; which Godfrey could not have done if the Devolu­tion had taken place, since by the death of Marguerite all the Right must have entirely been devolved to Henry, the first, and all manner of Alienation prohibited to the Father, to the prejudice of the first Son.

The same Godfrey, after the death of his Wife, Idem, fol. 129, & 130. the case of the Devolu­tion (if it had taken place in the So­vereigntie) having of necessitie hap­pened, married Henry his eldest son Duke of Brabant to Matilda the Daughter of Matthew of Flanders, Earl of Boulogne, in the year 1179, and there were inserted into the Con­tract of Marriage Clauses altogether repugnant to the Devolution: viz. That Godfrey, who then was a Wi­dower, gave to his Son, to endow his Spouse, Bruxells, Vilvorde, Ʋccle, [Page 218]and Ruysbroeck, upon condition that if Henry deceased before Matilda, she should enjoy the use and profit of those Lands during her life, whether she had any Children by him or not; and in case Matilda came to die be­fore the said Henry, without leaving any Issue behind her, then the Earl of Boulogne, her Uncle, should hold Bruxells untill that he was re-imburst of her Portion. If the Devolution had taken place, the Father could not have disposed of those Lands, nor assigned Portions out of them to the Princesses Uncle, to the prejudice of his Son and of his Children, to whom the Right would have been devolved by the death of Henry, unless that in the same Treatie of Marriage they had expresly renounced the Devo­lution, of which notwithstanding no mention is made in the Contract.

Here we must also observe, that in the same Contract the said Godfrey doth appoint his Son Henry to succeed to him as his Heir in the Dutchy, and his other Lands and Possessions. This [Page 219]appointment would be superfluous and ridiculous, if the Right had been already fallen to him by Devo­lution. And, which is yet more re­markable, he doth appoint him with a Reservation too of the District of Dorten and the County of Arescot, and excludes even the Sons which shall be born of this Marriage: which de­stroys from the very foundation the pretended Devolution in the Sove­reigntie, and is directly repugnant to the Interpretation which the Au­thours of these Libells do make of this Custom: because if the Devolution be a true Succession, and do attribute the Right of Proprietie to the Chil­dren during the Father's life, Godfrey could not have appointed his Son in the Succession as Heir after his de­cease, because he should have already been so during his life. And much less could he have cut off from a Suc­cession already acquired and devol­ved to him two Portions so consi­derable as the District of Dorten and the Countie of Arescot, nor have re­served [Page 220]to himself the disposition of them in favour of others.

The same Godfrey consented to a Donation which Gerard his Son of the Second Bed had made to the Ab­by of Everbode, Butkens, fol. 131. of certain Lands situated in the Parish of Tessenderlo; and he himself gave to the Abbot of St. Sepulchers at Cambray certain Lands situated in the Land of Bier­beeck, for the founding of a Provo­strie; which he could not have done, to the prejudice of the Prince of the former Bed, if the Devolution might have taken place in relation to Sove­reigns, and if this Right had been a true Succession: nevertheless the said Donations have remained inviolable, without the intervening Consent of Henry, and without being subject to any Recoverie either on his part or his Successors.

The same Trophies of Butkens will furnish us with other Examples of this nature; which by Conse­quences and necessary Inductions shew that neither Princes nor their [Page 221]Sovereignties were ever subject to this particular Rule, nor that in refe­rence to them the pretended Sen­tence of the Emperour Henry was put in practice.

But let us come to the Donation of the Low-Countreys made by Philip the Second in favour of the Infanta Isa­bella. All its Clauses and all its Cir­cumstances are directly opposed to the Right of Devolution. Philip the Second could not have given what was not his own; a Donation sup­poses the Proprietie to be in him who gives: the Consent of the Prince his Son would not have been required, nor ought to have been passed, as afterwards it was on the 6. of May 1598, if the Right of the Succes­sion and of the Proprietie had been fully devolved to the Infanta's his Sisters. This Donation, which was contrary to the Devolution, and al­so to the prejudice of a third per­son, would not have been received in that qualitie by all the Estates, as it was the 21. of August of the same [Page 222]year: Philip could not have as­signed them in Portion to his Daugh­ter, as it is certain he did by the same Act, and that the Archduke Al­bert accepted and possessed them by this Title.

To get out of this bad way, they have recourse to two Shifts, which serve only but to discover their Weakness. They acknowledge that Philip gave these Provinces to his Daughter, Dialogue fol. 55. but that it was to doe him­self honour by an Imaginary Liberality. The Duke of Savoy ought not to have liked this Game: whence came it then that he did not oppose him­self to this Imaginary Liberality, which was really destroying all his Right? Is it likely that all the Estates of the Countrey and the Tribunals of the Provinces would have approved a Chimerical Surrender, and connived at this Cheat, and under the sole Title of a false Donation tendred their Oaths for the whole to her who should not have been Heir but of a part?

The Archduke Albert's Treatie of Marriage with the Infanta Isabella doth not onely confirm this Dona­tion, but is also an evident proof, that the sole End of the Pragmatick Sanction of the Emperour Charles the V ^th above mentioned was the Union and the Indivisibilitie of all these Provinces. It may be seen in the 21. Article, And forasmuch, &c. towards the end, where he speaks in these terms: Provided always to be kept and observed inviolably all and every one of the Conditions above specified, and the Pragmatick made by the Emperour, my Lord and Father, of Immortal Memory, who may he rest in Glory, in the month of November Anno 1549. concerning the Ʋnion of the said Low-Countreys, without con­senting or granting any Division of them, or Separation, for what case soever, nor in any manner of ways whatsoever. And a little beneath this in the same Article he doth oblige both the Archduke and the Infanta, to sustain, carry on, and maintain all [Page 224]and every the Rents, Pensions for life, and all other Gifts whatsoever, which we and our Predecessors have given, as­signed, or granted. He speaks all a­long therein as true Proprietor; he grants these Provinces with those things charged upon them, which he could not have imposed if the Right of Devolution did reach the Sove­reigntie; and much less oblige the Infanta, to whom the Right had been devolved. In all the other Ar­ticles he speaks as absolute Master: Item, upon condition, and not otherwise. How can it be imagined that the States would have approved so ma­ny Clauses contrary to the Devolu­tion, if they had believed that it had place in reference to their Prin­ces?

I believe that they shall have no­thing to reply, if I make them see that Henry the Great (whom the most Christian King hath chosen for his Illustrious Modell) did authorize this Donation by a solemn Treatie, and did acknowledge that Philip the [Page 225]II ^d was the right Proprietor of these Provinces, and could dispose of them, either by last Will, Donation, or in any other manner. This great Mo­narch and his wise Ministers knew perfectly the nature, the use, and the extent of the Devolution in Provin­ces so near adjacent to France. If they had conceived that it had had any place in the Sovereignties, they would have been careful not to have treated upon any thing of that kinde, which might have prejudged a Right to which the Kings of France might sometime have acquired some Inter­est. Those who treated in the King's name were too circumspect, and too well versed in the practice, to suffer that any Clause should be inserted in a Treatie contrary to the Customs, and which one day might prejudice their Crown. From whence it is to be concluded, that the previous Acknowledgment which they made of this Donation which Philip the II. designed even at that time to make, is a manifest confession of their real [Page 226]sense, that the Right of Devolution had no place in the Sovereignties, as may be seen by the VI. Article of the Treatie of Vervins: 'Tis also mu­tually agreed and consented to, in case his Catholick Majestie should either give or transferre by Testament, Donation, or in any other way, under any Title whatsoever, to the most Serene Infanta Isabella his eldest Daughter, or to o­thers, all the Provinces of the Low-Countreys, with the Counties of Bur­gundie and Charolois, that all the said Provinces and Counties shall be compre­hended in the present Treatie, &c. In this Article France doth acknowledg that not onely Philip the II ^d might surrender, give, and transferre them to his eldest Daughter, but also to o­thers. Likewise the said Infanta, or he in favour of whom the said Lord the King should dispose thereof, &c.

The Authours of these Libells must needs accuse not onely one of the greatest Kings that ever reigned amongst them of a most gross Igno­rance, but also the ablest Ministers [Page 227]that have governed their Affairs, to wit, Monsieur de Belieure and de Sil­lery, or they must confess that no­thing they have alledged against this Donation hath any subsistence but in their own imagination.

The same, in the same page.But the States of the Dutchy (as the Authours of these Libells do pre­tend) did protest that that Donation should not prejudice their Rights, Cu­stoms, and Privileges. In these few words there be two evident Un­truths. The first is, That there will never be found, neither in the An­nals nor the Archives, any Protesta­tion of the States against this Dona­tion; and the very texts which he doth cite do clearly shew that they accepted of it in the quality of a Do­nation. Scripto Ordinibus caveat, duo­decimum Cessionis Articulum Belgica­rum Provinciarum Libertati & Privi­legiis nihil derogatum aut detrimento fore. This cannot be called a Prote­station against the Act, but onely a simple Reservation of their Privi­leges, under which they accept the [Page 228]Surrender, and qualifie it even by this Title; which they would have taken good heed not to have done, if it had been their intention to ex­cept the Right of Devolution, which must have been destroyed by this word of Surrender, and consequent­ly the acceptation would have been contrary and prejudicial to the Re­servation.

The other is, That in the same De­claration there is no mention made of the Customs, as the Writer doth arti­ficially adde of his own head, by a privilege which such Authours pos­sess by a prescription of many Ages, to say whatever they please without fear of punishment. Nothing is said in the passage which he cites, but, de Libertatibus & Immunitatibus, and lower, de observandis Patriae Privile­giis. Now he himself confesses that the Right of Devolution is a kind of Penaltie introduced out of hatred to Second Marriages. It is not then pro­bable that they meant to comprehend under the name of their Privileges [Page 229]and Liberties a burthensom Restri­ction which bridles them, and against which they themselves do every day seek after Precautions and remedies in their Testamentarie dispositions. The Reservation of the States to preserve their Privileges and Im­munities was not done either to op­pose or contradict the Surrender, which they did freely accept, but onely to hinder lest by that Cession they should fall to be in a worse condition then that in which they were under Philip the II ^d, and did not go farther then to oblige the person to whom the Surrender was made to the same conditions to which the Sur­renderer was bound.

The Authour of the Queen's Rights doth yet run out with more licence upon the same Subject, Pag. 206. by falsely citing of Meteren in his Hi­story of the Low-Countreys. To make this Historian speak to his fan­cie, he adds to his Narrative a meer Fiction, contrary to the sequell and to the sense of his story. Those of [Page 230]Brabant (says he) were so afraid lest it should be thought that the Infanta I­sabella, to whom this Dutchy belonged by the right of Devolution, should be conceived to hold it by virtue of the Donation, because no mention was made of any Right. In the end he applies to this false Preamble that which Meteren relates of the Prote­station made by the States, that this Donation might not hurt nor preju­dice their Rights and Privileges; wherein also he doth maliciously change the terms of the Protestation, which speaks not of the Rights of the Dutchie, as he alledges with his ac­customed ingenuitie, but onely of their proper Rights and Privile­ges, de observandis Patriae Privile­giis, as the passage it self expresses, which he hath cited elsewhere. But at the bottom there will nothing be found in Meteren that can either di­rectly or indirectly prove, that the States of Brabant made the least re­flexion upon the Right of Devolu­tion, nor that they refused to accept [Page 231]the Donation in this qualitie; but, on the contrary, that they admitted it under the same Title, as also the Consent of the Prince Philip, which was contrary to the Right of Devo­lution, and that the repugnancie which this Historian saith divers shewed in this rencounter was found­ed on other causes, viz. That it would be held strange, that the Eldest Daughter should be bestowed upon a The Archduke Albert whilst he was a Car­dinal. Prince who was provided of many Ecclesiastical Estates, and to prefer him before the Elder Brothers, as the Em­perour was. Which he delivers as discourses and popular Reflexions, according to the style of Historians; and would not have omitted to have spoken of the Devolution, if it had been but mentioned among the ordi­nary reasonings of the people. Even the States of the Province (as this same Authour reports) never resol­ved to mingle the Devolution among those Causes which they alledged for the aversion which they had to the change of a Master, but, Meteren l. 9. fo. 412. on the [Page 232]contrary, they produce other Rea­sons which seem to destroy the De­volution. Their principal Reason was, Because they had lived so many years under the just and equitable Go­vernment of so good a King, and that remembring so many Favours, they con­ceived that it was not possible to quit their Obedience to him without a conti­nual remorse of Conscience. Which shews that they acknowledged him for their true Proprietor, else what remorse of Conscience could they have had for going to their lawful The In­fanta Isa­bella. Heir by the Right of a Succession Devolved? of which, according to the French doctrine, the King his Father possessed but the bare use and profits, whereof he might have de­nuded himself without giving them any cause to think strange of it, since that is ordinarily practised by the Fathers in the Marriages of their Children, to release unto them the enjoying of those Proprieties which they have acquired. What follows renders the business much more evi­dent. [Page 233]They submitted themselves ne­vertheless (notwithstanding the con­siderations which they had to the con­trary) to the will of the King, & alledg­ed this Reason for their so doing, viz. to give them for their Princess, his most dear Daughter, of whose goodness and Vertue they had heard so much, and withall for coupling her with a Hus­band, &c. They do consent in con­sideration of the goodness and Vertue of the Princess, and the great Quali­ties of the Husband, at the same time when they profess that he gives her un­to them for their Princess; they ac­knowledge her not to have been so before: and if it is the King who gave her unto them, it cannot be the De­volution that placed her in the Throne. It is for this that in the Consent which they gave to it they say, that it was to conform themselves to the will of the King, and provided that his Majestie would command them so to doe: which they would never have said, if so be that they had held the Infanta for their lawfull Princess [Page 234]by a Right already devolved. This Consent clearly expresses, that it was in the quality of a Portion and Dona­tion that the States did receive the In­fanta to be their Mistress, as is mani­fest by the relation of the said Histo­rian; and that they themselves requi­red the Consent of the Prince her Brother, in which he doth declare that he was induced thereunto for cer­tain great Reasons and respects of the Common good, and to the end that his Sister might he provided for according to her quality and great merit: he he qualifies it also with the title of Do­nation. All this is so contrary to the Devolution, that I cannot admire e­nough the blindness of this Writer, in having touched upon this string so palpablie out of time.

But though by an excess of In­dulgence all that they alledge were granted to be true, they are not able to draw any other consequence from it, but that the States, by accepting of this Surrender, did pretend that they were to remain in their anci­ent [Page 235]Rights and forms of Government: and this cannot be understood of any but those Rights which relate to themselves, without pretending there­by to touch those of the Prince, nor to subject the Sovereignty to their Customs, since in effect that would have been an unjust and ridiculous Pretension, and which would have made to their own Disadvantage.

Let us remove from this point to that of the Surrender and perpetual Alienation made in favour of the E­states of the United Provinces, by Philip the IV ^th, Which was done at the Treatie of Munster in the year 1648, of one part of Bra­bant and some other Provinces. This Donation ought to be null according to all the Rules of these Writers, not onely for what concerns the Lands where the Devolution hath place, but for all the others likewise. As to the first, it is certain that the Case of the Devolution was already come to pass in favour of the Prince Balthazar, and, failing of him, in favour of the Queen of France, when they were surrendred: If this Right be a pre­sent [Page 236]and certain Succession, if it be a Propriety which can never validly be renounced, it is the duty of the States of the United Provinces to think either handsomly to restore them, or else to defend their posses­sion by the Sword: the Sentence is already pronounced, The most Chri­stian King, not out of a covetous de­sire to conquer, but according to the pre­cise obligation of his Duty and Consci­ence, is reduced to the necessity of en­tertaining them in the same fashion as he doth us; he cannot abandon the Rights of his Wife, without failing in what he owes unto her, and what his own proper reputation requires of him.

As to the other Lands, if it be true, as they affirm it to be, that Sove­reignties are unalienable; that Princes cannot renounce their Rights in preju­dice of their Successours, even by pub­lick Treaties; that those are Rights of Bloud, inseparably tied to all the posteritie; that they may pretend Re­lief even against Treaties of Peace [Page 237]upon the score of Laesion; in fine, if no consideration neither of Advan­tage nor of publick Faith can prevail against the rules of litigious wrang­ling; behold the Treatie of Munster, concluded with the States of the Uni­ted Provinces, reduced to the same inconveniences with the Pyrenean.

Some Objections remain to be satis­fied in particular, which I have not yet touched but very superficially, though they be sufficiently repelled by the Principles which I have esta­blished.

They oppose to us in the first place the Sentence of the Emperour Henry in the year 1230. The same Counsel­lour Stockmans hath very pertinently answered it in the 21. Article of his Treatise; to which I will onely adde, that this Sentence can have no relati­on to the Right of Devolution, for these following Reasons.

• 1. The first is, That the whole Narrative on which he founds the Decision of the Emperour is meerly the Invention of this Scribbler, in re­gard [Page 238]that neither the Sentence nor the History do mention any such thing, and that it is repugnant to the Text even of the Sentence, which speaks not of the Propriety, but one­ly interdicts the Alienation, which in it self was not permitted to him with­out the Consent of the States: and what he adds in the Sentence, Matrem habuerit, & illa fit mortua, shews that it ought not to be understood of the Sovereigntie, but of some patrimoni­al Goods belonging to the Prince which might have been affected with the Portion of the deceased Mother. For if this Sentence were founded upon the Right of Devolution, he would have made of it some express mention, as well as have alledged a­nother cause for it: besides that, as I have already made appear, the Devo­lution doth not absolutely hinder, and does not annull the Alienation, but renders it onely subject to be rescin­ded after the death of the Father, re­maining notwithstanding valid in case the Son comes to die before him.
• [Page 239]2. This Sentence would be unjust and contrary to the same Custome, if it were founded upon the Devolu­tion, because this Right doth not give the Children that horrible pow­er presently to seise upon the Goods of the Father in his life-time, because of a simple Alienation, but gives them onely a hope to enjoy them after his death, and the right to pretend Relief, and to re-demand what hath been ali­enated during his life. Otherwise, it were to authorize an unjust Violence, which would stifle the Law of Na­ture; it were to make Children Curatours to their Fathers, and to give them an opportunity to drive them from their Throne. From whence it is necessarily to be con­cluded, that the Sentence of the Em­perour ought to have some other mo­tive, which can be no other then that which I have related. In effect, seeing that it is not founded but upon the Death of the Dutchess, it must needs have had some other cause then that of Devolution, in regard the Empe­rour's [Page 240]Argument would not be con­cluding, The Dutchess is dead, then her Husband cannot Alienate; it be­ing certain that he may not onely in some cases, but that the Dutchess also her self might have renounced this Right by a Disposition amongst the living, or by one relating to her death.
• 3. If this Sentence did concern the Goods of the Sovereigntie, it would determine nothing at all, by reason that by their own nature they cannot be Alienated without the Consent of the States, who themselves would have been the first to have opposed this Alienation; unless their Assent had been required, and that they had judged it to be founded on the benefit of the State; in which case the Em­perour with Justice could not have hindered the effect thereof.
• 4. This Sentence was given in fa­vour of an Heir-male, and does not inferr that the Daughters of the First Bed ought to exclude the Sons of the Second. Indeed it is horrible and re­pugnant [Page 241]to Reason, onely to imagine that such a case should ever happen, whereby we might see a Daughter upon the Throne to the exclusion of her Brother, and the Son of a Sove­reign become Subject to his Sister: this shocks Nature, which hath given the preeminence to Men, and the rights to command, by reason of the excellency of their Sex. The Authour of the Dialogue strives to get out of this difficulty by restricting this gene­ral inconvenience to the particular fact which is actually in question:
  Fol. 52.
  but he runs from the Lists, and eludes the point in controversie. He speaks thus: The Catholick King shall com­mand in his Estates, and the most Christian Queen in hers, without either of them having any Jurisdiction over the other.

This Subterfuge is very pleasant and most handsomlie fansied; at pre­sent he changes the person of an Ad­vocate into that of a Polititian, and makes use of the Expedient when he finds not his advantage in litigious [Page 242]wrangling. It is happy that Philip the IV ^th left unto his Son other Estates: But if he had been onely Duke of Brabant, or Prince onely of any one of the other Provinces to which France doth pretend, and that the Devolution had place as to Sove­reignties, the case had happened wherein the Prince his Son had be­come a Subject to his Sister. And when we speak of the Monstrous­ness which this Custome would pro­duce in it self, and the Inconveniences which may generally arise from thence, we do look upon the thing purely in it self, and not in the pre­sent circumstance, which is out of the case of the Question, [...]nd holds no manner of similitud [...] [...]th it; because if the Duke of [...]abant do possess other Kingdoms, it is a thing meerly accidental in respect of the Dutchy and of its Customs.

In fine, all that is to be gathered from this Sentence is, that the Empe­rour would not permit the Duke to alienate his Goods to the prejudice of [Page 243]his Son. We cannot inferr from thence any thing in favour of the Devolution, since there be a thou­sand Imperial Sentences of the same nature for Fiefs, in which the right of Devolution never reigned.

The second Objection is drawn out of the alledged and ill-applied Opini­on of some Doctors, who do maintain that when any difference about Feo­dal Customs is in agitation, it is not to be regulated by those of the Lording, but by those of the Serving Fief.

It is certain that all of them do speak in this place of those Differen­ces which arise upon the Serving Fiefs, which being neither so absolute nor so privileged as the Lording, ought not to be measured by the same Rule: and this makes altogether in our fa­vour, to shew the advantagious diffe­rence which there is of the greater in regard of the lesser. Meanwhile they turn the Argument to the opposite way, and in stead of acknowledging that this Reason is sufficient to demon­strate the disproportion betwixt the [Page 244]one and the other, and that they can­not be made equal, they will yet make use of it not onely to equalize the Lording Fief with the condition of the Serving, but even to subject it to and regulate it by the same Cu­stome; although the contrarie doth evidently appear by the very Texts which they cite, and very falslie in­terpret. The Example is most clear in the Citation which they do pro­duce of Molina in his Treatise of The Ma­jorasque in Spain is the Eldest Son's Ti­tle. Majorasques.

They wrest this passage many ways; the Dialogue drags it thus by the hair: That the Crown of Spain being the first Majorasque of the Realm, Treatise of the Rights of the Queen of France, fol. 170. Dialog. fol. 40. it ought indispensablie to conform to the Laws which the Customs of the Country have introduced for Majorasques. To dis­cover the false artifice of this Dis­course, there needs no more then to confront it with the Text; and then it will be seen that it is far from sub­jecting the Sovereignty to Local Cu­stoms in order to the Majorasques; he wills, on the contrary, that all others [Page 245]should be regulated according to the practice of the Crown: Ab eóque (he speaks of the Kingdome) caetera pri­mogenia tanquam à capite derivari, suc­cedendíque rationem accipere: from whence he concludes, that every Pro­cess which arises from the inferiour Majorasques, sit secundùm Leges ad Regni Successionem institutas deci­denda.

I cannot wonder enough at the blindness of this Authour, who puts into our hands the titles which con­demn him, and yet presumes to turn them into a sense altogether opposite. The Sovereign Fief, according to this Text, is the Rule of all the rest: how can he then pretend that the particu­lar Customs of other Fiefs should be the Rule of the Sovereign? The Au­thour of the Treatise of the most Christian Queen's Rights makes use in substance of the same Subterfuge, but with a little more modesty: Fol. 171. he proves by the Authours which he cites, that the Majorasques of Spain were instituted after the example of [Page 246]the Royaltie; but he slips in some­thing of his own, that the Rules intro­duced for the Succession of the one were also introduced for that of the other; though it be certain by all this Text, and by what follows of Covarr. whom he cites, that the Sovereign Fief gives the Law to all inferiour ones, and consequently cannot receive it from their particular Customs. But as he doth falsly cite to us the Spanish Authours, to reduce the Sovereign­ties to the Customs of the Countrie; let us see whether their own French Authours will agree in this Maxime. Behold what Peter du Puy, Du Puy in the Trea­tise of the Rights of the King t. c. on the Dutchie of Bretannie. very fa­mous and of great credit among them, says upon the Subject of the Successi­on of the Dutchie of Bretannie, which makes altogether for our purpose. If this Difference were among particu­lar persons and inhabitants of a King­dome, it seems that the Infanta of Spain might have some apparence of Right by means of the Custome, of which she will make use: but it being all pub­lick, and all Royal, decided by the pub­lick. [Page 247]Rights of France, known to all the World, we may justly be astonished how they have dared to preferr to them Lo­cal Customs, which regulate nothing but Differences among private persons. Can any thing be clearer then this? The Counsellour Stockmans cites Mo­lineus, and other Authours both French and Germans, on this Subject, who confirm the same thing in such ex­press terms, that they leave no mat­ter of doubt. The Reader may see them cited in the 21. Chapter, and have recourse, if he think fit, unto the fountain.

The Authour of the Dialogue is admirable in all, but he surpasses him­self in prettiness, when, outvying Pythagoras and Ovid in the changes of Forms, he makes the Sovereigntie to appear under divers Metaphysical Abstractions, whereof Lawyers till now have been ignorant. At first he represents it like a Queen, and in a moment after like a mean Citizen: one while he brings it upon the Stage as a married woman, and then again [Page 248]as a Widow: he kills it, and raises it to life again; exalts it, and debases it; and into what posture soever he puts it, he hath the dexterity to make it still act its part handsomlie. When 'tis needfull to pursue the Cause by Arms, then (forsooth) is it a Sovereigntie that holds of none but God, and that may admit of no other Judge: when he will dispute it in the Quiddities of Law, it is a simple Inheritance, subject to the Law of the People. When the Renunciation is treated of or the Te­stament, he places it above Kings and Reason of State: but when he brings the Devolution into play, he ranks it among Slaves. When it is his plea­sure, the Prince must be the Soul of the Customs: and when he finds it more to his advantage, he subjects the Prince to it. And after all these long windings, he finds at the end of his reckoning that he hath fought onely against his own Shadow, and that all this Gallimaufrie tends to reduce the Sovereign Successions to the low con­dition of private Fiefs.

Sovereignties do never die, ac­cording to the opinion of all the French Doctors, their Rights and Prerogatives subsist still during the Interregnum, changing of Masters al­ters nothing in their Jurisdictions and Preeminences. This distinction is of no use where we handle the Right of Devolution, since that it falls even whilst the Father lives: so that if the Devolution hath place in Sovereign­ties, and if this Right, as they pre­tend, be a true Succession and Pro­prietie, the Father in effect is no longer Sovereign, because the Right of the Sovereignty is properly and radically affixed to the Proprietie, and not to the Prossessour of the Rents and Fruits. So that in refe­rence to the Sovereigntie the Prince is to be reckoned of as dead from the first moment in which he is a Wi­dower; he cannot be any more the Soul of the Customs, since he hath no more in him the principle of politick Life, being deprived of the Proprie­tie of his Dominion; and his Life [Page 250]might be called an Interregnum, and his Sovereigntie a vacant inheri­tance. But what would follow upon all this? Would this Sovereigntie without Master cease to be a Sove­reigntie? and though it could not establish new Laws, would it fall from its ancient and natural Prero­gatives? shall it be reduced either by the natural or the civil Death of the Prince to the measure of the Suc­cessions of Burgesses? would it be­come inferiour to its self? If that were true, it would follow that it is the Person of the Prince onely which makes it Sovereign: whereas, on the contrary, it is the other solely which puts him into the Rights of Sovereigntie. Page 172. In truth all the dis­course which he makes on this Sub­ject is so confused, that it is not pos­sible to comprehend what advan­tage he seeks from thence.

The third Objection is founded upon the Instrument of the Treatie of Marriage of the Queen of France, in which Spain hath covenanted a [Page 251]formal and express Derogation to all contrary Customs: from whence he will infer this Consequence, That if the Customs did not affect those Goods, Spain had never sought to be disingaged of that whereby it was not bound. How can men who affect to be thought Wits dare to fill Vo­lumes with such Trifles as these be, without apprehending the censure of honest men? The Derogation which was made to the Customs is recipro­cal, as much on France's side as on Spain's: and if the Argument which he takes from it had any kind of force, it would conclude against France, and render subject to the Customs of Bretanny and other Pro­vinces, as well as Spain to those of Brabant. But who does not see that this Derogation does stretch it self onely to such Customs which may tie the Sovereigns, or serve as a pretext by right or wrong to form new Pre­tentions against them? Experience teaches us that we cannot be too cir­cumspect against such turbulent spi­rits, [Page 252]and that it was not enough to take away the Root and the true Causes of the evil, but that also it was necessary to cut off the Shoots and Branches, and not onely remove the Causes, but even the Pretexts and Apparences.

Although the other Reasons which they do alledge to establish their pretended Right to the other Pro­vinces, in which the Devolution is unknown, be entirely ruined by this one Principle, which I think to have sufficiently proved that Sovereign Successions neither ought to be nor can be regulated by Local Customs; I will not omit to adde one word more by the way touching this mat­ter, till such time as the Lawyers of those places, who are better versed in the nature of their particular Cu­stoms, shall be able to give to the publick a more exact account of them.

He strives to prove by three Ti­tles, that the Seigniourie of Mechlen belongs to the Infanta by this same [Page 253]Right of Devolution. The first is the Custome, which, as he pretends, hath introduced the Devolution into that Land. I have already shewn that this doth not concern the Crown. The second is the Union which was made of this Land to the Dutchie of Brabant by Philip surnamed the Bold, and confirmed by the Emperour Charles the V ^th. This Union doth not render it dependent upon Bra­bant, as it is really notorious that it doth not. The third is the esta­blished Practice, that all moveable Fiefs of Brabant are to be regulated by the Feodal Custome of that Dutchie. He doth here contradict himself, seeing that a moment after he hath raised this Lordship to the de­gree of a Sovereigntie, he will make it to depend on the Dutchie of Bra­bant; wherein he is grossely mis­taken, being it is certain that it doth not hold of it in any kind. After he hath declared it to be inseparable from Brabant, he will make it subject to the Feodal Custome, by virtue [Page 254]whereof it might be alienated as well as all the other particular moving Fiefs of the same Jurisdiction, which are every day parted and divided a­mong the Successors, as I have already made appear. Let us say then, that they are Sovereignties united under the same Privileges, but Independent of one another, which may have, and have in effect different Customs; and that Sovereignties, as I have al­ready proved, not being subject to Devolution, that of Mechlen cannot have been made liable thereunto by this Union, which takes nothing from it of its proper Sovereignty.

All that he alledgeth touching the Upper Gelderland, the County of Namur, and the Dutchie of Limbourg, seeing it is onely grounded upon the Devolution, and their Union with Brabant, falls of it self, I having be­fore destroyed all the Foundation. But he falls also here into another Er­rour, supposing, either out of a real or an affected Ignorance, that Gel­derland and Limbourg are united to [Page 255] Brabant, which will never be found.

The other Rights upon Hainault, Luxemburg and Burgundie, are almost of the same nature, and founded on this false Principle, That Sovereign­ties ought to be regulated by the Local Customs: wherein he falls in­to a new contradiction. For in the Treatise of the Queen's Rights, Fol. 166. in the place above cited, he confesses that the Prerogatives which the So­vereign Fiefs have above others are, that they are unalienable, and indi­visible; and yet notwithstanding, by subjecting Luxemburg and Burgundie to the Local Custom, he makes them both liable to division, Burgundie in­to three parts, and Luxemburg into two: which renders yet more mani­fest what difference there is betwixt the Lording and the Serving Fiefs, and the Prerogative which the first have over the others by his own con­fession. And it cannot be compre­hended which way he pretends to re­concile these two opposites, that the Sovereign Succession is indivisible in [Page 256]its own nature, and yet subject at the same time to a Custom which would make it divisible. But finally, both in Burgundie and in Luxemburg it is permitted unto Fathers to make Testaments and Substitutions, and the most part of the principal Fiefs are provided to the Eldest Sons by the dispositions of private persons: If then they will reduce the Prince to the condition of a private per­son, and the Sovereigntie to the pra­ctice of Local Customs, they should at leaft doe him the favour to make him equal in every thing with his own Subjects, and should not rob him, as they do, of the power which the meanest Citizens enjoy, to dis­pose of their Goods by Will as they think best themselves, without being obliged to leave any more unto their Daughters then barely their Legal Portion. But the very Reason which they do alledge to overthrow the deceased King of Spain's Testa­ment, doth plainly shew the preemi­nence of Sovereign Fiefs, and that [Page 257]they are so unalienable, that the Princes themselves have not the right to dispose of them at their plea­sure, to the prejudice of the Supreme Law of the State, which being above the Prince himself, would be too much humbled if it were made infe­riour to the Custom of Subjects.

It will be found throughout all the Annals, and by the course of Suc­cessions in all these Sovereignties which they pretend to, that they were never dismembred nor divided, though there have been frequently many Brothers and Sisters, who, ac­cording to the particular Custom, might have had right to pretend to the Division of them, if these So­vereign Fiefs were of the same nature with the others.

Philip and John, Dukes and Earls of Burgundie, Mary, Charles his Grandchild, Philip the Second, Third, and Fourth, left many Children; and yet this Countie was never subject to Division, which the Authour of this Libell labours to extend from [Page 258]private Fiefs to Sovereignties. And if we will look yet higher into the matter, it will be found that this Rule hath always remained invio­lable in the Succession of its Prin­ces.

Whereupon several Observations may be made.

• The first, That this order of Succession hath been com­mon in all the Provinces to which France doth pretend, and that this shews that of their own nature they have always been indivisible.
• 2. That the Males have ever succeeded, to the exclusion of Daughters.
• 3. That all the Local Customs which these Authours do alledge have never taken place in all these Sovereign­ties.
• 4. That the Right of Devo­lution never had effect in reference to Princes on any occasion; otherwise Catharine Dutchesse of Savoy had suc­ceeded Isabella her Sister, and so much the rather because she had not at all renounced.

It seems that he seeks onely to di­vert himself in all the discourse he [Page 259]makes touching the Countie of Hai­nault, The Trea­tise of the Queen's Rights, page 365. and that by the Examples and Allegations which he produces he will set forth his Memory to the pre­judice of his Judgment. It is not here the place to dispute whether Hainault be a Fief or a Free-hold, since in the one as well as the other Title the Right of the Queen is equal­ly ill founded. The Sentence which he cites in favour of Jaqueline Coun­tess of Hainault against the Bishop of Liege is wholly from the purpose, seeing it is out of controversie that the Daughters do succeed in this Countie, failing of Heirs-male of the same Line. The Point in question was to prove that the Daughters of the First Bed did exclude the Males of the Second in the Succession of this Countie: yet of this he is alto­gether silent, and all the remainder of his discourse is but a straying and a vain Caracole out of his course; and after he hath run himself out of wind, without being able to make any Con­clusion upon those Grounds which [Page 260]have cost him so much pains to esta­blish them, he retires like a Cacus in­to his den of the particular Customs, which is his onely refuge.

But it is here where he hath lost all manner of Modesty, when he dares affirm that the Custom of the place prefers the Daughters of the First Bed before the Males of the Second. If he had consulted the Practitioners of the Countrey, they would have informed him of the Use inviolably observed among them, and founded upon their Custom, which gives the preference to the Males without any distinction of Bed in the Succession of Fiefs; they would have let him see, in the 13 ^th Chapter Ar­ticle 6. of their Customs, that the Daughters of the First Bed should remain without any part in the Fiefs of their Fathers, and that the Males of the Second should absolutely carry them by the disposition of the Cu­stom, according to their ordinary Rule; if the same Custom had not permitted the Fathers and Mothers [Page 261]to provide a remedie in this by a spe­cial Disposition. These are the very words of the Custome: Two Con­juncts having onely one Daughter may make and pass advice to her profit out of their Fiefs and Allodes and main Farms, either wholly or in part of them, even by charging one piece or more of the Rents hereditarie, or Via­geres, revocable or irrevocable, as if they had many Children; to the end that if from the said Conjuncts, or from other subsequent Marriages, Sons should come, the said Daughter may have a Portion. It is clearer then the day that the End of this Custome is, to give the Fathers a remedy against the practice and the general Cu­stome which prefers the Males of the Second Bed, to hinder that the Daughters may not be left without any part at all, as it would happen if the Parents did make no disposition to the contrary. It is also seen by the same Text, that regularly the Parents had not the power to make even this Disposition, and that they [Page 262]did receive it onely by this Custome, may make and pass advice: There­fore they could not doe it if this Cu­stome did not give them the power, otherwise it would be superfluous and without effect.

The 7 ^th Article of the same Cu­stome doth so neatly interpret the preceding, that if the Writer had but taken the pains to reade it, he would not have so inconsiderately hazarded upon a Proposition which tends to destroy all his credit, the terms whereof are these: And though by the Law, if there be no advice, the Fiefs patrimonial of the Survivor be­long to the Son of the Second Marri­age, when there is onely a Daughter of the First Bed; nevertheless the said Fiefs being ordained by advice to the Daughter, (as in the preceding Ar­ticle) or to many of the former Mar­riage, such an Ordinance shall take place, to the exclusion of the Son of the Second Marriage: which is in the publick an universal practice, and without contradiction throughout all this Province.

As to the Country of Namur, though particular Goods there be subject to the Devolution, it is as true that the Sovereigntie is exempt from it; that it is seen at this hour by the Contract of Sale which the Earl John made to the behoof of the Duke of Burgundie in the year 1421. that he parted with the said Countrey to this Duke upon Conditions which are inconsistent with the Devolution, ha­ving sold it to him for himself and his Heirs which should be Earls of Flan­ders, without ever being able to be separated from that Countie. This Inseparabilitie doth necessarily ex­clude the Devolution, and the rather, because the Countie of Flanders to which it is united doth no ways ac­knowledge this Custome.

As for what concerns Artois, the Custome which he cites is not recei­ved; and the disposition of the 27 ^th Article which he alledges extends no farther then to the Goods that are situated within the Sheriffdom of Ar­ras, as is clear by the preceding Ar­ticles, [Page 264]and in the Text of the same Custome, which cannot onely not be a Law to the Sovereigntie, but cannot so much as be a Rule to the other Lands of the Countrey, which hath its general and received Cu­stoms, failing whereof it hath re­course to the written Law. And though this Custome of Arras gives some right to the Children upon the Goods of the Survivor, it is notwith­standing far different from the De­volution in all its effects, as those may observe who shall have the cu­riosity to reade it. And it is so li­mited to the place, that though it affects the Movables, yet those can­not be seised on which are out of the Sheriffdom. But by the general and the received Custome of this Pro­vince, there is neither Devolution nor Intervestiture, (as they call it:) on the contrary, by the 139. Article the Survivor inherits one half of all the Movables of the first deceased, and by the 134. the Husband hath the Administration of all the Goods [Page 265]of his Wife, and can alienate the Un­moveables without her consent; which is altogether opposite to the In­tervestiture. The 176. Article, which is urged against us, concerns not the Children of the First Bed, so much the more, because that in the 94. the Eldest carries away all the Fiefs without di­stinction of the first or second Marri­age, and succeeds for his share with the Children both of the one and the other Bed.

The Texts which he alledges a­gainst this drawn from the 4 ^th Article, Chapter 105, and from the 3 ^d Arti­cle, Chapter 91, and others, are ap­plied by this Authour directly against the true sense, and the ordinary pra­ctice of the Custome: For if we con­sider Hainault as a Fief, it is out of doubt that the Males of the Second Bed do exclude the Daughters of the First; of which the practice is so re­gularly observed in all the Tribunals of that Province, that it is to goe di­rectly against a known Truth to bring this Question so much as in Contro­versie. [Page 266]From whence it follows, that the Customs which he cites cannot be understood in reference to Fiefs, but where there is a concurrence of Male against Male, or of Daughter against Daughter, of two Beds; in which case the Male of the first Marriage carries it before those of the Second Bed, and the same doth the Daughter of the First Marriage before those of the Latter: But when the Question is be­twixt Male and Female, the thing is out of all debate in favour of the Male. But if, on the contrary, they will make Hainault pass for a Free­hold, it is indubitable that the Father may dispose of it by Advice and by Testament, and also by Substitution; as is certain by the 6. Article of the same, Chapter 105. The 9. Article of the 94. Chapter which he cites speaks onely of those Fiefs that come by Collateral Succession, and cannot be made a Precedent in relation to Free-holds, which the Parents may dispose of: and that which he adds, that according to the same Custome [Page 267]the direct Donations do pass for Pur­chaces, is absolutely false, when the Donation is made under the Title of a Portion: and it is a monstrous thing, that they should offer to make pass for a Purchace the Reversion of those Provinces in the person of Philip the IV ^th, since it was expressly provided in the said Donation, and that King Philip the Second and the Prince his Son had never consented to it but under this Clause of Reversion: so that in the recovery of these Fiefs they are returned into their first na­ture, of being the Legal Patrimonie of the Line of Philip the II ^d; and they did alwaies remain such, notwithstan­ding the Donation, and chiefly in what relates to Hainault. For if it be considered as a Free-hold having been given with a Clause of Reverting, it staies alwaies in its qualitie of Patri­monie; and if it be a Patrimonial Fief, it is in the same qualitie likewise that it returns back again to the Giver. We might also say that as being a Fief it could not be legally given away, [Page 268]since it is certain that the Fathers in the County of Hainault may not dis­pose of them by Advice, but by way of Disinheriting: so that on which side soever it be taken, it is impossible France should finde their advantage. But 'tis to dwell too long upon these Customary practices, and to injure Princes, to weigh their Rights in so weak and so unequal a Balance.

I cannot here omit, in passing, to desire the Reader to observe one notable Artifice by which France would give a false weight to her bad Cause by begg'd Authorities, and sub­tilie stolen by a wittie Surprize. The Authour of the Queen of France's Rights makes his great Batterie there­of, and thinks to confound the Rea­ders with these specious words, of U­niversities which France hath consul­ted, of Doctours from all parts who have subscribed to their Opinions; and, if we will believe him, our Con­demnation is decreed by the unani­mous consent of all the most renow­ned Lawyers. But because he is in [Page 269]possession of never reporting matters of fact in their true circumstances, his bad memory ought to be a little helped, and he made remember, that they have indeed attempted some U­niversities and particular Doctours to maintain these Opinions, of which some have fallen into the Trap, and now detest their inconsiderate Light­ness; others have had a sharper sight, and would give no Decision upon so indeterminate a fact and ill explica­ted: The Question hath been propo­sed to them under borrowed names, without reducing it to the terms of the true Fact whereof at present we are treating; they never mentioned to them that Sovereignties were the thing in question, whereof some are Fiefs of the Empire, and others inde­pendent; they concealed the Act and the Clauses of the Renunciation, as well as its Causes and the End thereof; they never knew that it was covenan­ted by a Treatie of Peace between two Kings, & agreed to by a Contract of Marriage inseparable from that of [Page 270]the Peace; they were never told of the causes which France had given to the delay of the Payment of the Por­tion; they took a great deal of care not to make it appear that the Goods which they pretended to were insepa­rably united among themselves by a Fundamental Law of the State; and without furnishing them with any of those instructions which might have been usefull to them in the framing of a solid judgment, they satisfie them­selves with the meer questioning them upon the right of Devolution, and with the inquiring of them whe­ther a Father could alienate his Goods to the prejudice of a Right devolved to his Children, If a Daugh­ter might renounce a Succession which was fallen to her, If a Mi­nor might be relieved against an e­normous Laesion, If a Renunciation made purely in contemplation of the Portion ought to hold, when the Por­tion hath not been assigned upon the Goods of the Father, and that the very payment had not its effect; and [Page 271]so of the rest. They have answered to these Propositions according to the disposition of Common Law and the practice of the Local Customs. But from whence comes it that the French Writers, who have stuffed their works with so many unusefull Allegations, durst never produce any of these Consultations, which, no doubt, (had they touched the Case) would have been of more force then all that they have alledged in their works? The cause of this silence is easily to be di­vined: It is by reason that they could not spread them abroad without dis­covering at the same time the vain il­lusion of their captious proceeding, and overturning all the strength of these same Authorities, by detecting that they were all surreptitiously ex­torted.

But to put the business home to them, we shall willingly consent that the fact be reduced to its true Spe­cies, and that it be referred to the Judgment of the most famous Uni­versities in Europe, excepting onely [Page 272]those who by preoccupation of mind, or by the common subjection of their Countrey, are not in a condition to think that which they ought, nor to utter ingenuously that which they think.

Let us conclude this Article then with a Dilemma, which proves de­monstratively that the Queen of France hath no manner of Right, which way soever this business be looked upon. For either the Devo­lution hath place as to the Sovereign­ties, or not. If it be received in them, then the The House of Savoy. Successours of Ca­tharine are the lawfull Lords of all the Lands which are subject to this Custom; this is unquestionable. But if the Devolution be of no force in relation to Lording Fiefs, all the Pre­tensions which France doth build on this Title are annihilated. So that all this great heap of Titles and inventi­ons, which he hath with so much soli­citude gathered together to uphold the Right of the Queen of France, cannot operate (though it were ap­proved [Page 273]of) but in favour of a third partie; and thus thinking to plead the Cause of the Queen, he hath acted onely for the Duke of Savoy.

ARTICLE VI.

THere are two Motives of dif­ferent nature which ought to incite the Princes of Christendom to undertake the defence of our Cause; the one is the Interest of State, the other is a strict Obligation of Ju­stice. The first regards generally all the Potentates of Europe; the second is particular onely to the Princes and States of the Empire: the one de­pends upon their foresight and their wise Conduct; the other is joyned to [Page 274]the duty of the last, to the Funda­mental Laws of their State, to the Treaties of Peace and Warrantie, and to the reciprocal bond which u­nites all the Members of this vast Bo­dy, which makes all its Greatness and Glory, and which is the onely foun­dation of its Quiet and Safety. We will begin with the first, as being more universall, and more conside­red at this day in the World; and that will guide us insensibly to the second; to let both the one and the other see, that our Business is theirs, that our Commotion is their Trouble, and our Fall their own Ruine. It is our busi­ness here to uphold the Law of Nati­ons which is common to all, and to hinder that Maximes may not be in­troduced into the World which would destroy the whole Commerce of mankind, and render humane So­cieties as dangerous as the company of Lions and Tigers. Here it is our design to defend the publick Faith of Treaties against the Subtilties of liti­gious Pleading; to preserve the Law [Page 275]of Arms within the Rules and Forma­lities which the universal Consent of all Nations hath established; and to remove out of the sight of Christen­dom a scandalous Example, which by its lamentable consequences would expose the weakest to the discretion of the more powerfull, and would make Force the sole Arbiter of all Processes. We treat of the way to stop the course of a rapid Torrent, against the Impetuosity whereof Peace, Marriage, Oaths, Bloud, Kindred, Friendship, and Conde­scensions are not Banks strong enough to keep it within its Chanel. It is our purpose to defend the common Bulwark against a vast Design, which hath for its cause nothing but the pre­dominant desire of Conquests, for its end Dominion, for its means Arms and Intricacies, nor for its limits any thing but what Chance will prescribe. In fine, we are here to decide the for­tune of Europe, and to pronounce the Sentence either of its Freedom or Sla­verie.

Here I resolve to shake off all man­ner of interessed thoughts which I may have for my party; I will con­sider my self in this Article no more then as a simple Citizen of the World: and to shelter my self the better from all suspicions of Partialitie, I will found my Discourse on no other Prin­ciples but those which I shall draw out of French Authours.

Since the Providence of God was pleased to raise the most August House of Austria to this high pitch of Greatness which hath dazled the eyes of Envy, we have seen growing in the heart of France the lamentable seeds of this unjust Emulation, which for so many years together hath pro­duced all the Misfortunes & Troubles of Christendom. The principal Game of the French hath been, to diffuse this Jealousie everywhere, and to render its Jaundice contagious, representing unto all the other Princes the Power of this August House as a fearfull Phantasm which would swallow them up, and giving themselves out for the [Page 277]onely Perseus's able to deliver fettered Europe from the fury of this Chimeri­cal Monster, whereof they had made to them a vain Bugbear. But expe­rience hath made it known, that they onely did render our Power suspe­cted, to raise their own; that they did fright others with us, onely to make themselves necessary; and did not of­fer them their protection, but to be­come their Masters, and make them the Instruments of their Ends. Many have blindly fallen into this snare, and, to avoid an imaginary Dan­ger, have thrown themselves into a real Precipice. This Artifice was so successfull, that a part of Europe put it self in Arms against the Valour and Good fortune of Charles the V ^th, and the profound Wisedom of his Succes­sour: and all this Commotion was founded upon one onely Principle of State which the French Writers have established with an extraordinary di­ligence, and upon which the Duke of Rohan had made roul all his Treatise of the Interest of Princes; That there are [Page 278]two Powers in Christendom which be like the two Poles, from whence all the Influences of Peace and War do descend upon the other States.

From whence he draws this Maxime to regulate the Conduct of all other Princes, That their principal Interest is to hold the Balance so equally be­twixt these two Great Monarchies, that neither of them, either by the way of Arms or Negotiation, may e­ver come to prevail notablie; and that in this Equality doth solely consist the Repose and Safety of all the rest. Though he doth applie this Maxime very ill to the particular use of France, and artificially serves his turn with it as of a false Lure, insensibly to draw all the other Potentates into the French nets; it is notwithstanding ve­ry wholsome in it self, and if it had been managed with all the vigour and prudence which was necessary to render it usefull, Europe at this day should enjoy a perfect Tranquillitie. But many have been mistaken by a false supposition, that the Power and [Page 279]the Designs of Spain were more to be apprehended then those of France; and that by this very Reason of State they were obliged to put the Coun­terpoise into the French Scale of the Balance.

'Tis easie to believe that at present none will be found not fully undecei­ved of this errour in matter of Fact, which hitherto made them abandon their true Reason of State. But to ex­amine this Question in its fountain, and in every circumstance belonging thereunto, it will be to the purpose to compare the most flourishing State of the House of Austria under the glorious Reigns of Charles the V ^th and Philip the II ^d, and the Maximes of these two Princes, with the present state and manner of acting of France; and then it will be clearly discerned by this parallel, that all which was apprehended from us at that time by a Panick fear, now is to be fear­ed and prevented in regard of the French, by the solid principles of a true Prudence.

To discourse well of this, we must consider the Situation both of the one and the other Monarchie, the Genius of the Princes which govern them, and the Inclinations of their People, the Maximes of their Government, and the circumstances of their Con­duct both passed and present. This would require a large Discourse; I shall content my self onely to touch, in passing by, the Essentials, and leave the Consequences to the considerati­on of the Readers.

The Monarchie of Spain is a large Machine which cannot easily be sha­ken, but which cannot likewise move with the Agilitie which is necessarie to forein Enterprises. The Situation of this Monarchie is advantagious for its own Defence, being compassed with the Sea and the Pyrenean Mountains: but it is inconvenient for invading o­ther States, because of the defect of a nearer conjunction betwixt the Mem­bers thereof, which cannot hold any Communication with one another but by the large Chanels of the Ocean [Page 281]and the Mediterranean Sea, which do expose their Designs to all the in­juries of Weather, and to the incon­stancie of an Element on which no just measures can ever be taken. The Union of the Empire to the power of Spain in the person of Charles the V ^th was rather a step to the design of becoming greater, then any addition to his power: he espou­sed with the Empire all the Quarrels of Religion and of State which the conjuncture of those times had stir­red up in that great Body, which did take up, in favour of others, the most part of his care and forces. In a word, this powerful Monarchie seems to have been raised by God to be the Bulwark of the rest, against the Turk in Hungarie and in Italie, a­gainst the Moors in Spain, and against France both in the Low-Countreys and in Italie: But the neighbourhood of these three Powers by which it is in­vironed is a strong barr to stop its Designs, if it should endeavour to form too vast ones.

The Genius of its Princes is suit­able to its Situation; They are na­turally Courteous, and inclined to Vertue; and if they have exceeded in any thing, it never was but in Goodness. Charles the V ^th loved noble Glory; but he had so little Ambition, that he resigned the Em­pire to his Brother, and all his King­doms to his Son, and used his Victo­ries with so great Moderation, that he reaped no other benefit thereby, then the Honour to have overcome, and the satisfaction to have preserved his Realms.

Philip the Second, according to the confession of the Duke of Rohan himself, had no inclination at all to Arms, nor ever took them up but for his Defence, or out of necessitie to humble those who fomented Rebel­lions within his Kingdomes.

It is to joyn two inconsistent things, to represent him in one and the same time as an enemie to War, and yet ardent to obtain Conquests. His Successours have been endowed [Page 283]with so rare Clemency, that their activeness had never appeared to the eyes of the World, if the necessity of their defence had not excited and in a manner constrained them to shew themselves. The people of Spain, and of the other Kingdoms which live under the same Dominion, are naturally friends to Quietness, ene­mies to Noveltie, satisfied with their present Condition, and have not the least propension or itching to trouble their Neighbours. But if we consider the Maximes which these great Prin­ces have followed, we shall find that the principal to which they have most adhered are directly opposite to those of Conquerours.

The first is, To keep inviolably the Faith of publick Treaties, which are powerful bridles to the Ambition of a Prince who desires to extend his Limits, and do put great obstacles to his Designs, by making him a Slave to his Word. It cannot be found in all the Lives of these Monarchs, since the Emperour Charles the V ^th [Page 284]till our time, that ever they have broken or prevaricated in any Trea­tie, nor began a War for the in­larging of their Limits.

The second, To prefer Religion always before Reason of State; which is directly contrary to the Rule of Conquerours, who do dexterously make use of all sorts of Sects to com­pass their own Ends.

The third, Not to make use of their Victories, and the Advantages of their Arms, nor of those of their Allies: for we find that in all the Actions of those Charles the V ^th, Philip the II ^d. two great Mo­narchs, they never applied any one of their Conquests to their own par­ticular benefit, except what did be­long unto them by just Successions.

The fourth, To rule according to the Laws, and leave their People in the peaceable possession of their Pri­vileges; which amongst Conque­rours would pass for an essential fault, against the first Principles of their Politicks, which require before all other things, that they make [Page 285]themselves absolute and independent at home, and that they break all the Chains of Domestick Laws which might hinder their actings abroad.

The fifth, Never to admit neither League, nor Alliance, nor Commerce, nor Peace with the common Enemie of Christendom. This is a bad un­dertaking of the Design of rendring themselves Masters of Europe, when they draw upon themselves the emu­lation and the hatred of the Tyrant of Asia. Let us adde to all these things the mature Circumspection which they observe in their Coun­sels, which renders their Resolutions more slow, and less active, then is re­quisite to a Conquerour, who ought to give more to Fortune then to Pru­dence. This made a famous French Authour say, Malherbe in his E­pistles. If it were true that Spain aspired to the Ʋniversal Mo­narchie, he would advise them to de­sire God to grant a respite of the end of the World.

France is a Kingdome that hath all its Parts united, abounding with [Page 286]Men, industrious in Commerce, which gains with their Baubles and their Modes the money of all other Na­tions, which hath considerable Har­bours upon the Ocean and the Medi­terranean Sea, and in their neigh­bourhood no considerable powers to fear but that of the House of Austria,

The Genius of the Nation is na­turally inclined to Arms, full of heat, unquiet, lovers of Novelty, desirous of Conquests, quick, active, and in­clinable to all manner of Expedients which they conceive to be advanta­geous to their particular Ends.

The Maximes of their Govern­ment (according to what may be gathered from their Conduct both passed and present, by their own Writers, and by the same Treatise of the Duke of Rohan) are the follow­ing.

First, To entertain always War abroad, and exercise their young No­bility at the expence of their Neigh­bours.

This is a most politick Maxime, [Page 287]and most suiting with their own uti­litie, but most troublesom to all the rest of the World. In effect, it is certain that the Genius of the Na­tion is such, that it cannot endure to subsist long in the Idleness of Peace; there must: be Aliment for this Fire, and if some were not given it from abroad, it would form to it self mat­ter at home. To this natural Pro­pension must yet be added the Cu­stome of most part of their Provin­ces, and the particular Dispositions of Noble Families, which give so great advantages to the Elder Bro­thers, that they leave almost nothing to the younger but their Industry and Sword: and as they do not cultivate Letters, and their Quality suffers them not to apply themselves to Me­chanick Trades; there is nothing left to them but the Warrs or Rob­beries, to preserve themselves from Miserie. Whence it comes that this Kingdom always finds it self filled with an idle and boyling Youth, ready to undertake all, and which [Page 288]seeks employment for their valour, at whose cost soever it be. The li­bertie which they had heretofore of voiding this Bilious humour, and of running to supposititious glory by single Combats, is at present taken from them by just Decrees: the little shifts of Industry by which for­merly they sheltred themselves from want are now severely prohibited: But at the same time that all ways are shut unto them, whereby to open their spleen in their own Countrey, the Polititians of France held it ne­cessary to furnish them with another gate by which they might evaporate this Flame, which would gnaw their own Bowels if it did not find another vent.

Moreover, as the greatest Reve­nues of the Crown of France consist in the Purse of the People, and that the excessive Contributions cannot be exacted in times of Peace, with­out making a great many Malecon­tents; it is necessary to feed them with the smoke of some Conquests, [Page 289]and always to have pretexts to re­main in Arms, and maintain by force the Royal Authority, which hath so strangely overflowed the limits of their Fundamental Laws.

As it is impossible for them to sa­tisfie all the Princes and great men of their Realm, and that ever since the Reign of Henry the III ^d they have taken it for a Rule of their Conduct, to bring them low so far as they can; it is extremely convenient to hold them imployed in forrein Wars, and to incite them to glory, that they may be consumed in ruinous under­takings.

Their second Maxime is, To enter into all sorts of Affairs either by right or wrong, and everywhere to make themselves the Arbiters either by vi­olence or by cunning, by Authoritie or by surprize, by threatnings or by friendship, and to get in as Mediators even into those Treaties of Peace wherein they are interessed as Par­ties; as they pretended to doe in that of the Bishop of Munster, and do [Page 290]actually practise in the Assembly at Breda. In all the Differences, either past or present, they have never doubted to take Partie; there never yet was Quarrell in which they had not dexteritie enough to form unto themselves some kind of Interest, and some Rights; nor did ever any People shew the least inclination towards Re­bellion, but instantly they made them their Allies. But experience hath made it visible, that they never entred into any War but to exaspe­rate it, nor into any Peace but to sow the seeds of new Disputes. It would be superfluous to number them, since there is no body so little versed in the ancient Story who does not confess this truth, and that the modern Examples have made us know it sufficiently. In the last Troubles of Germanie, into which they thrust themselves at first un­der the colour of Protection, with a thousand specious protestations that they would never pretend any thing for themselves, but barely the satis­faction [Page 291]of their Allies; when the business came to its full Crisis, they dismembred Alsatia from the Body of the Empire, by the same Artifice with which they had dissolved from it Metz, Toul, and Verdun. three Bishopricks under the Reign of Henry the Third.

The third Maxime is, To have for their onely Rule the Interest of State, so that the Faith of Treaties, the good of Religion, or the ties of Bloud and Amitie cannot hold them. 'Tis this that the Duke of Rohan puts for the fundamental Prin­ciple of all his Work; The Princes command over the People, Interest com­mands over Princes. All that the Turks have done in Christendom since Francis the First to our time, they owe it to the Alliances of the Crown of France with the Ottoman Port, and to the Diversions which they have made in their favour against all those who have desired to undertake some­thing against this Common Enemy. And though that the Protestant Re­ligion is beholding to it for a part of [Page 292]its progress; yet France doth not therefore desist from giving secret in­telligences to the Catholicks, to make them consider its power, as the one­ly, which being tied by no Capitu­lation, is therefore in a condition to reduce all Sects under the Obedience of the Church. In a word, for the erection of their Monarchie, they do imitate and apply to ill uses the Max­ime which St. Paul practised for the enlarging of the Kingdom of Christ, Factus sum omnibus omnia: and as this Apostle complied with all sorts of spirits to gain them to the Church, weeping with the afflicted, and ta­king part in the consolation of those which he found to be satisfied; these, by a wrong Imitation of this holy Conduct, conform themselves to the Interests of all the World, to make them serve theirs, and sacrifice Re­ligion as often as it comes in com­petition with the Interest of State. The examples are so fresh, that we need not make any enumeration of them: and many things might be [Page 293]said on this subject, in reference to the last War against the Turks, if Modesty did not oblige us to sup­press them.

Their fourth Maxime is, To keep as much as they can forrein States occupied and divided at home, or else engaged in some external War. England, the Empire, Italie, Denmark and Spain have had a sad Experience of this; and now both Poland and the States of the United Provinces do resent the deplorable effects thereof.

All these Maximes are proper to Conquerours, and as many infallible marks of a vast and profound De­sign long ago contrived. The Pre­decessors of the most Christian King could not bring it to perfection, be­cause the Civil Wars, the power of Spain, and the just Limits which the Royal Authoritie then acknowledg­ed, were powerful Barrs to stop them: but at present, having impo­sed at home an absolute Law over all their Subjects, and having put Dis­sention [Page 294]amongst all Strangers, there remains nothing but that they over­come the third Impediment, by com­pleating the overthrow of the Monar­chie of Spain, that they may pass upon our Ruines to the Conquest of all the other States. To attain this, it was necessary they should full us asleep with the Assurances of Peace, and Propositions of Leagues and U­nion: The War of Portugal was care­fully to be nouri­shed, to consume by a slow fire this Monarchie, and keep at the same time Portugal in their Depen­dencie, by the necessity of their Assi­stance: A War must be raised be­tween England and Holland, and pro­longed by a thousand Artifices, to get themselves elbow-room to Invade the Low-Countries, whilst these two great Powers should be drowned in Bloud to their reciprocal Ruine. It was held requisite to sow the Seeds of Division in the Empire by the means of parti­cular Leagues, which, under colour of the Good of the Peace of Germany, have no other End then to facilitate [Page 295]the Invasion of it, and hinder Assi­stance to be given to one of its most precious Members. A powerfull Facti­on likewise was to be raised in Poland, to keep all the Princes of the North under check, and a part of the Empe­rour's Forces unusefully imployed in the Gard of his Frontiers. To seem indifferent to both Religions, it was necessary one while to assist the Ele­ctor of Mentz against those of Erfort, and then the Elector Palatine against Mentz; and to seek everywhere their Advantages in the Troubles of others.

I cannot here omit one fresh Exam­ple which makes much to my pur­pose, though I foresee that it will oc­casion as much horrour in the Reader as it hath done to my own Pen. France, by virtue of a Treatie of Warrantie with the States of the Uni­ted Provinces, after divers unusefull Requisitions made by the said States, found her self at last obliged, by her Interest, to make some shew of an in­clination to imbrace their Defence a­gainst England. This Treatie of re­ciprocal [Page 296]Warrantie expresly contains, that the Allies should not so much as treat, and much less conclude any Peace with the Common Enemie, or Truce, without the consent of the o­ther, and without procuring the same Sa­tisfaction for their Allie which he should obtain for himself. The States of the United Provinces did so scrupulously adhere to this Obligation, that not­withstanding the little Reality of the French Succours against England, and the considerable Advantages which they could have found by Treating apart, they would never lend an ear unto any Proposition of this nature. France, on the contrary, alwaies held a Negotiation open by the means of the Earl of S. Albans: and upon the just Suspicions which they gave unto the said States, by the frequent goings and comings, and the flux and reflux of Courriers, continually passing be­twixt Paris and London, the Court of France did so authentickly confirm to them their Faith, and gave them so positive words, that they would ne­ver [Page 297]hearken to any Proposition but in the common Assembly for the Gene­ral Peace between all the Allies, that even they ordained the Count de l'Estrade, that in case credit were not given to what he assured in the quali­ty of Embassadour, so good an opi­nion have they of the honesty of their Ministerie) he might devest him­self of his Character, to assure them of it in his own name. A great ho­nour indeed for Monsieur de l'Estrade, which shews that he is not capable of deceiving but in the quality of a Mi­nister of France, and that the Probity of his Person exalts the Dignity of his Charge. Notwithstanding, if he had been so unadvised as to have engaged himself in this Surety, he would at this day have found him­self liable both to the Principal and the Interest; it being out of doubt that England hath had the dexterity to engage France in this Quagmire, to conclude a secret Treatie of Peace with them without the Consent, nay without the Knowledge, of their Al­lies, [Page 298]without making any mention of them or of their Interests, and with­out any reservation of or relation to the General Peace. But that which is yet more astonishing is, that after this Peace was concluded, notwith­standing the Promise made to the En­glish not to use any Hostility against them, France used all its endeavours with the States of the United Provin­ces to put out their Fleet speedily to Sea, binding themselves to joyn their own Fleet with it, and agreeing with them upon all the Conditions neces­sary for this effect. If this procee­ding doth not open the eyes or all Eu­rope, they'l have no cause to complain of the Calamities which they are to suffer by France, which takes so much pains to undeceive them.

All the Maximes which I have a­bove related are those of Conque­rours; but their manner of executing them is so much the more to be fear­ed, as it consists altogether in Quick­ness and Activity, and that no Rea­son of Justice, nor any Condescen­sion [Page 299]to the Interposition of Neigh­bours, and of their own Allies, is able to stop the current of it. It is no more now the fear nor the jealousie of the Power of the House of Austria, which served them for a Pretext in their for­mer Wars, that makes them act at this day; they dare no longer make use of that ridiculous Scarecrow of the Universal Monarchie aimed at by the Spaniards; they have no occa­sion from the Discontents of the Protestants of Germanie, and their Alliances with the United Provinces; they can no longer cloak with the In­terest of others the Itch which they have to conquer: there remained no­thing else for them to doe, but to goe seek the occasions of War in the very Sanctuary of Peace, and to form the project of it upon a Marriage, which they themselves do avow was made for no other End but to render the Union eternal and inseparable.

It may be judged by all this dis­course, that these great Designs must needs have a vaster Idea then the [Page 300]Conquest of the Low-Countries; that they are the first attaqued as the Out­works, to the end they may lodge themselves without impediment in the Body of the place they have Preten­sions to, the greatest part of Gemanie, as an ancient Domain of France, which could not be alienated. They are going to form to themselves a Precedent against the States of Hol­land, by the Annulling of all the Royal Surrenders, and the Establishment of the Devolution. They covet Har­bours in Spain, Leagues in the Em­pire, Factions in Poland, Wars in En­gland, and Holland, Passes into Italie, and the Sovereign Arbitrage every­where. Their Quiet consists in the Trouble of all others, their Glory in Conquests, and their Advantage in the publick Calamities. In this they follow their sole and supreme Rule of Interest. It is the part of all others to take their measures from this, and to think seriously of prosecuting their own.

There remains something to be said [Page 301]of the particular Obligation of the Empire for the Defence of the Cir­cle of Burgundie. I shall pass but lightly over this matter, because it is already decided by a solemn Act of the Chancerie of the Empire; and that he who hath written on this Point at Ratisbon hath penetrated in few words so throughly into the Bottom of this Affair, and so drained it, that he hath left nothing to be ad­ded, no more then to be replied thereto. In effect, I never read any thing more cold nor weak then the Answer which was long since publish­ed on the behalf of France against this solid Writing: It is filled with an unuse­full heap of words, shuns the Lists everywhere, strays from the Questi­on, omits the principal Objections, and supposes the Point still in contro­versie to be a thing already proved. It inlarges it self into great com­plaints, because by this Writing it ap­pears as if people would doubt that the most Christian King had a design to Invade the Circle of Burgundie. [Page 302]They could not more palpablie mani­fest the Injustice of this War, then by taking for an Injurie the bare Sus­picion which we conceived thereof. But what will he say at present, when all Europe sees that our Fears were a prudent Foresight, and that the E­vent hath verified our Conjectures? Can he to day make that pass for an act of Justice, which he detested be­fore as an Attempt which we could not so much as foresee without offen­ding them? Will he not blush for shame at the Exclamation which he hath made, Aut quasi Christianissima Regia Majestas in animo haberet eundem Circulum denuo Armis aggredi, & in­vadere? It was then a Crime but to think that this could happen; and now it is a greater, it seems, with them, to wonder that it is come to pass.

But in the end, no man doubts but that the Circle of Burgundie is a Mem­ber of the Empire: the Authour of this Answer grants it to be so himself, and thus dispenses with my pains to prove it.

He knoweth also that as such it is obliged to assist the Body in case of necessitie, and all the Members of the Empire, and to furnish its proporti­on of the Contributions which are necessary to the Defence thereof; which the King hath exactly and superabundantly accomplished on all sorts of occasions, both before and after the Treatie of Munster. And by the rule of Law, he that is obliged to all the Charges, ought likewise to participate of all the Advantages: o­therwise the Union of this Circle with the Empire would be a Leonine Societie. All the World knows that this Warrantie is reciprocall, and that it must equally hold on both sides; so that he who is bound to succour the Empire against all, and on all manner of occasions, ought also to receive the mutual Assistance of the Empire against all those who do in­vade him.

It is likewise certain, that by the Treatie of Munster it is included in that Peace as a Circle of the Empire, [Page 304]and that by this inclusion it ought to enjoy all the Rights and Prerogatives which appertain to the other Circles, and all the effects of the Peace, by which the common and reciprocal Defence is established.

Against which they have nothing to oppose but an Article ill under­stood, and worse interpreted, of the Treatie of Munster, de mutuis Hosti­bus non juvandis, by which the Em­pire and France do reciprocally ob­lige themselves not to give any Assi­stance to their respective Enemies.

France hath directly contravened this Article by the Assistance which she sent against the Bishop of Mun­ster, which effectually did enter into the Lands of the Empire; and by the Counsel she gave to reduce this Bi­shoprick into Ashes,

But for the better understanding of this Article, we must observe that it is concluded betwixt the Bodie of the Empire indivisibly on the one part, & France on the other, which do reci­procally promise not to assist the E­nemies [Page 305]of each other. Here the Empire with all its Members is rec­koned but one Partie contracting, and France the other: so that when it is said that it shall not assist the Enemies of France, it should be understood of Enemies abroad, and cannot con­cern the Members of the Empire, which in one Body are the same Par­ties which have treated with her, and to which all the Body owes defence, by an original, natural, and undis­pensable obligation. Were this o­therwise understood, it might be in­ferred by the same Argument, that in case the Empire did assault any Province belonging to the Crown of France, the other Provinces of the same Realm could not go to their As­sistance without violating the Article de non juvandis Hostibus. If France doth replie, that those Provinces make up but one Kingdom, we shall also say, that the Ten Circles do con­stitute but one Empire; so that when France hath War with any one Circle of the Empire, it is a War made a­gainst [Page 306]the whole Body: And the word mutui hostes cannot be inter­preted but of Strangers; else the Body of the Empire had obliged it self not to assist its Members against France, and by consequence to aban­don it self, and to see it self dismem­bred by parcells, while the Parts of this great Body should not dare to stretch forth their hands to the help of one another. But in this case it is not to give Assistance to the Enemies of France, but it is to defend the Em­pire against France, which doth in­vade it. If this Clause, de mutuis Hostibus non juvandis, be universal, and do comprehend all those with whom France hath any debate, it would operate against all the other Circles, as well as that of Burgundie, and there shall be no Member of the Empire which may hope for any Relief from the other Circles in op­position to the Invasions of France. But if they will apply it particularly to the Circle of Burgundie, they must prove, by the same Instrument of [Page 307]Peace, that although it be a Member of the Empire, it is of the number of those Enemies which it cannot assist against France; and that the other Circles are excepted out of this ge­neral Rule, or that they have some particular Privilege above that of Burgundie. But neither the Treatie of Peace nor the Imperial Constitu­tions making it to be in a worse con­dition then the others, and on the contrary including it in the same Peace and the same Rights which the other Circles do enjoy; it follows, that the Clause de non juvandis Hosti­bus ought to be extended to the Ten Circles, or that it ought not to com­prehend that of Burgundie. The Imperial Capitulation, which is formed upon the Idea of the same Treatie of Peace, doth yet more clearly explicate all the Doubts which may be raised touching a truth so palpable, by the reservation of the Article of Warrantie contained in the Instrument of Peace: which shews clearly that the Obligation not [Page 308]to assist the Enemies of France can­not derogate from that which all the Circles of the Empire have recipro­cally to assist each other. All that the Writer of France alledges against this in his Answer is but a frothed Cream, and is so strongly refuted in the Replie which of late hath come to light, that it were lost labour to endeavour to give it any farther clearing.

The Electors, Princes and States of the Empire, are fully persuaded of these Truths; they are not unsen­sible of the Contempt done to their Jurisdiction openly violated by this Attempt; they are not blind to the Dangers which threaten them by our Oppression: but as they never go from the ways of Moderation, they would not imitate France, by begin­ning, after their Example, the Process by the Execution, judging that it be­hoved them to try the means of Gentleness, Reason, and Remon­strances, first, before they should re­curre to the last remedie. But they [Page 309]are too sharp-sighted to suffer them­selves to be dazled any longer with void and undetermined Answers, by which France, under the general ex­pression of a seeming desire of Peace, obstructs all the passages by which they might enter to an exact discus­sing of the Business. In effect, to the Suspension of Arms which they have proposed, they have had no Return but that of a disdainful Refusal; to the Mediation which they offered, a doubtful Hope; and to the Time and Place of the Treatie, a Silence full of Artifice. They will see full Commissions before they declare themselves as to other circumstances, which (according to the order of all Treaties) necessarily ought to pre­cede the sending of Plenipotentia­ries: They take great care to per­suade that our Queen hath cut off all kind of approches to an Accom­modation: They do of purpose conceal from their Deputies her last Answer, by which she offers to send her Embassadors to the place which [Page 310]shall be agreed on, and to refer all to the Arbitration of the Mediators which should be chosen. They will have nothing of all this: a full Pow­er must needs precede, without knowing whither the Plenipotentia­ries shall be sent, or to whom they will refer themselves. So soon as this shall be consigned, they'l form Scruples upon every syllable; if there wants onely a Comma, Spain shall be presently judged as an ene­mie to the Peace. In the mean time they go on always gaining ground, they render from day to day the Ca­lamitie more incurable; and whilst they labour by this Juggling to stop the just Assistance of the Empire and of the other Princes, the progress of their Arms advances without check, and they labour to put themselves in a condition to render all those Helps unprofitable which justly we may expect, and to deal so, that our Friends shall not be undeceived, till their Suc­cours can no longer hinder our Ruine.

The onely Remedie is, quickly to imbrace Maximes proper for coun­termining theirs. They have a King­dome united in all the Parts of it; let us unite our Affections and Powers. Their Quietness depends upon our Trouble; let us seek our Safetie by the abating of their Pride. They act by way of Fact; let us repell Force by Force. They dallie with us by vain hopes of Peace; let us put our selves in a condition to make them desire it seriously. In a word, they have a design upon us all: let us make then of this Cause a Common Inte­rest, and not anchor all our Deliverie upon the favour of the Cyclop; which was indeed profitable to Ʋlysses, but by a good fortune which in reason he ought not to have expected.