maintain it, was expressing his own view of law, and his firm conviction that as yet no necessity had arisen for any such departure from the universal principles of law held both by himself and by the emperor; and there is therefore no grounds for concluding it to have been a matter of indifference to him that Germany was once more plunged into civil war and made the prey of foreign lands. But setting entirely aside the fact that numerous disputes arose over the interpretation of the Augsburg religious peace, and that Germany lost blessings greater than that of peace by the disunion of faith being completed, was the treaty such as really to secure peace ?10 and was it found capable of hindering incessant local battles, and at last the Thirty Years' War? Was it not rather itself the cause of that war ?11

Warnkönig, Die Staatsrechtl. stellung der Kath. Kirche in den Kath. ländern des deutschen Reichs, Erlangen, 1855, p. 12.

2 Huber, p. 40. Vide Letters from Campeggio to Clement VII. Nov. 13, 1530, and June 24, 1531; from Salviato to Campeggio, July 13, 1531 (Lämmer, Monum. Vaticana, pp. 64 seq. 73, 74). Campeggio's Memorial of May 1530, in Maurenbrecher's Charles V. and the German Protestants, Dusseldorf, 1865, Appendix, i. iii. p. 3 seq. Ranke, Popes, i. p. 111 seq. Germ. ed.

3 Letter to Clem. VII. Dec. 22, 1523. Lanz, i. 80. Maurenbrecher, 1.c. pp. 12, 25, 60, 344, Appendix, i. iii. p. 16 seq.

The Bishop of Modena to Farnese, March 1541. Lämmer, 1.c. p. 367; Maurenbrecher, p. 51.

Thus earlier Ferdinand and the Prince-Elector Joachim of Brandenburg. Seckendorf, Comment. Hist. Apol. de Luther, iii. 27. For Bavaria, vide Pallavicini, Hist. Conc. Trid. 1. iii. c. ix. n. 7; for Otto of Augsburg, Buchholtz, vii. 178 seq.

• Maurenbrecher, 1.c. pp. 308, 309, 311.

' Bzovius, Annal. Baron. Cont. t. xx. p. 306, ad a. 1555, n. 36, without reference to sources. Cf. Fessler, Die wahre und die falsche Unfehlbarkeit, p. 65.

Schulte, i. p. 51, note 2, and No. 44.

Cf. Phillips, Kirchenrecht, iii. § 140, p. 442 seq.

20 Schenkl, Syntagma Jur. Eccl. Salisb. 1786, § 184, p. 102.

"Onno Klopp (Kleindeutsche Geschichtsbaumeister, p. 131) calls the Augsburg religious peace the fruit of the treachery of the Prince-Elector Maurice, the seed which after long preparation grew up into the Thirty Years' War.

VOL. II.

DD

$ 15.

The protest of the Pope against the peace of Westphalia, by which the Thirty Years' War was brought to a close, has given even greater offence. When the Bull of Innocent X. is justified as a protest against the immoral principle ‘Cujus regio, illius religio' (He who rules the land settles its religion), it is objected that no such protest is to be found in the Bull. It is true that no express condemnation of the principle appears in the Bull, but neither is it explicitly put forward in the treaty of peace; but like the religious peace of Augsburg, of which it was professedly the development, the whole treaty of Westphalia is based upon this principle.

The Pope's protest does not extend to the peace as such, nor to all parts of the treaty, but only to certain articles by which injury was done to the Church. Moreover, he does not speak as 'sovereign of sovereigns,' but only as supreme Head of the Church, whose duty it is to guard the faith and the rights of the Church. The Pope lays especial stress on the following seven points in the treaty: (1) The Church property occupied by heretics was made over to them and theirs for ever. (2) The heretics of the so-called Augsburg Confession were permitted the free exercise of their heresy in numerous places; assignments of sites were promised for the building of suitable meeting-houses; and they, together with Catholics, were admitted to public posts and offices, to certain archbishoprics and other ecclesiastical dignities and benefices; also to a share in the privilege of the 'first petition' (jus primarum precum) granted by the Apostolic See to King Ferdinand on his election as emperor.8 (3) Annates, or firstfruits, the right of bestowing the pallium, confirmations, Papal months, and similar rights and reservations were removed from the Church goods of the said Augsburg Confession. (4) The confirmation of the election or postulation of the pretended archbishops, bishops, or prelates of the said Confession was given over to the civil power,10 (5) Several archbishoprics, bishoprics, convents, provostships, commendams, canonries, and other Church benefices

11

and properties-being no longer even called Church propertywere given to heretical princes and their heirs, as perpetual fiefs, under the title of a civil dignity. (6) There was a special provision that no law, canon or civil, universal or peculiar, no decree of a Council, rule of an order, oath, Concordat with Popes, or any other civil or ecclesiastical decree, dispensation, absolution, or other exemption, should be appealed to, listened to, or admitted in contradiction to any single article of this peace.1 (7) The number of the prince-electors, which had been once settled by apostolic authority,12 was, without the consent of the Pope and that of the Apostolic See, increased, and an eighth elector appointed in favour of the heretical Count Palatine Karl Ludwig and others, to the serious injury of the orthodox religion, the Holy See, the Roman Church, and other Churches dependent upon her. 13

The Pope had without doubt the right of protesting, since his own rights were wholly disregarded, Concordats strictly observed by Rome were violated, and the rights of all Catholics grievously injured. He could not have remained silent even had he foreseen that his remonstrance would be in vain ;14 had he held his peace his tacit consent might have been inferred.15 1 Huber, p. 66 seq.

2 Fessler, Die wahre und die falsche Unfehlbarkeit, p. 56, note **. The apostolical supremacy' to which Schulte (vol. i. p. 41, § 30) refers applies solely to the domain of the Church.

No less stress' is laid on this provision, which is passed over by Herr Huber, than upon that which follows, which he puts foremost. Both by spiritual and by civil law, Church property could not be disposed of without the authority of the Church, especially to her injury, and an alienation of this sort was a grievous violation of law.

Huber (p. 67) speaks of perfect religious freedom, and the social equality of the Protestants with the Catholics; but perfect religious freedom was far from being given.

• Coöperation in the spread of heresy was at all times subject to ecclesiastical penalties.

Nothing could be more absurd or more wounding to Catholics than the Protestant bishops, who held these offices merely for the sake of the temporalities, especially the alternate succession of Catholic and Protestant bishops in Osnabrück.

Cf. J. A. Brand, diss. de Jur. Caesar. primar. precum, et Endres, diss. de Insinuationis primarum precum necessitate, in Thesaur. Jur. Eccles. t. v. n. 4, t. vii. n. 9, Lunig.; Spicil. Eccl. i. c. i. § 170 seq.; Friedberg, 1.c.

pp. 180-183.

Clement XI. still defended the Papal right in the Brief to the Chapter of Hildesheim, 1705, and in the Indult, Cum post factum, March 10, 1714.

Jura Palatii' in the Bullarium is a misprint; as appears from the decree in question, Instrum. Pac. Osnabr. art. 5, § 19.

10 Instr. Pac. Osnabr. art. 5, § 21.

11 I. P. Osn. art. 17, § 3; Monast. c. xvi. § 113. By this clause the legislation and indeed all the rights of the Church and of ecclesiastics, especially of the Pope, were seriously and harmfully interfered with.

12 This statement gives special offence to Huber, p. 68. But might not Innocent X. maintain what had been said more than three centuries before by the German King Albrecht in his document of July 17, 1303? Hefele (Conc. vi. p. 289, note 2) supposes Albrecht to have declared this earlier than the Popes. The tradition mentioned by the author of the work De Regimine Principum, iii. 10, that Gregory V. appointed the Electors, was received not alone by Hadrian VI. (Ep. ad Frideric. Saxon. 1522, Hard. ix. 1901), but also even by the Magdeburg Centuriators (Centur. x. c. xix). Friedberg (Diss. cit. p. 25, note 5) records many authors by whom the tradition is mentioned.

13 Ceteraque in dictis instrumentis contenta, quae Cath. religioni, divino cultui, animarum saluti, eidem Sedi Ap. Romanae et inferioribus ecclesiis... quomodolibet . . . praejudicium. . . afferunt.

14 Walter, Kirchenrecht, § 113, note 2. Phillips, Kirchenrecht, iii. § 141, p. 476. Fessler, 1.c. pp. 56, 57.

15 Schenkl, Synt. Jur. Eccl. § 187, p. 105. The subject is treated well and in detail by Schmidt, Instit. Jur. Eccles. German. P. i. pp. 83-93.

$ 16.

The canonical, and in general the juridical, point of view is carefully to be distinguished from the political.1 Looked at from the first, not the Pope alone but every Catholic had to pass judgment on the peace, as was acknowledged on almost all sides. On political grounds only could it be defended. Rome accepted it as a momentous deed done, not as a just deed; for injustice can never become justice, least of all when the Church is concerned. Apostasy from the one Church was indeed a violation of law, from which innumerable others ensued; in so far, however, as the treaty, at least outwardly, restored peace and order to Germany it was beneficial, though scarcely in any other respect, for at the present day it is still a question with politicians whether this peace of Westphalia, in which the superior power and arrogance of France and Sweden dictated laws to the worn-out German Empire,3 was so great a blessing.+

Few acquainted with history would venture to reply to this question with an unconditional affirmative. Still less can it be considered as a blessing that, as has been most truly said by Döllinger, it set a seal to the system of making sovereign princes the rulers over religion and conscience.

1 Walter, 1.c.

2 Warnkönig, l.c. p. 21: From the Catholic point of view the peace of Westphalia was indeed an act to be condemned in the Catholic princes of Germany, and necessarily drew an earnest protest from the Pope.' Martin Gerbert (op. cit. 1. iii. c. viii. n. 13 seq. p. 566 seq.), in recording the provisions of the peace of Westphalia, and in stating the grounds for and against, makes his judgment plainly known, even though he does not venture to express it in words, having regard to I. P. Osn. a. 5, § 50; a. 17, § 2, 3.

* Onno Klopp, Kleindeutsche Geschichtsbaumeister, Freib. 1863, p. 3 seq. The treaties of 1648 were the work of foreigners, of France and Sweden. They are not, as is well known, a development of our national life, but are to be considered as a maiming of it, and, moreover, a maiming by a foreign power.'

Cf. Ludwig Bamberger (Gedanken zur Völkerpsychologie, ii. Allgemeine Zeitung, Sup. Jan. 24, 1871), in the sketch of the speech made by Thiers, March 14, 1867, in which he lauded the peace of Westphalia as the happy cause of the peace of Europe up to 1866, and amongst other things said: Upon it (this great treaty) are founded the freedom of Europe, the independence of the smaller States of Germany, the glory of France; thanks to this peace Europe has been set free, set free by France, and France itself is covered with glory.'

5 Kirche und Kirchen, p. 58.

§ 17.

The numerous misinterpretations to which the Bull of Innocent X. had been exposed became known in Rome, and although the conduct of the Holy See for 160 years might have completely put an end to the uneasiness of princes, still the Pope gave a direct explanation. In the protest presented to the Congress of Vienna by Cardinal Consalvi1 and confirmed by Pius VII. in a Consistory,2 against all things done or not amended, to the injury of the Church in Germany, and against all things prejudicial to the salvation of souls resulting therefrom, the following statement was expressly made: That the Holy Father, in virtue of the charge of the flock of Christ laid upon him, and in virtue of the sacred oaths by which he was bound, could not keep silence amid so many violations of the