This essay examines the issues surrounding the treaties of Utrecht and the renunciations to the thrones of France and Spain in the context of European history between 1700 and 1847, when their validity remained a vital issue in international affairs. The essay begins with an Introduction, outlining the sequence of events, and is followed by a detailed analysis of the essential acts: the testament of Charles II, the negotiations leading up to the treaties, the renunciations themselves and the treaties to which they were annexed. It is followed by an outline of the relations between the two dynasties in the 18th century, with details of the various treaties and agreements between them as well as official commentaries, culminating in the French revolution and the first written constitution of France. Following the restoration of the Bourbons to their thrones in 1813-14, the repeal of semi-Salic law in Spain is discussed in detail, with the actions of interested states and parties. Finally the international crisis provoked by the marriages of Isabel II and her sister and the consequent exchanges between France, Spain and Great Britain are examined in detail. The essay ends with a brief summary of the historical aftermath to these events. References and citations are either given in the text, or following the full text of the documents which can be found (on the Internet version of this essay) by the associated link.

Part One: Introduction

The death of Charles II, the last Habsburg to reign as King of Spain, on 1st November 1700 precipitated a European crisis. The Spanish Empire included not only the Kingdoms of Castille, Aragon and the other Iberian Kingdoms (although Portugal had achieved independence in 1640), but also the Kingdom of the Two Sicilies (Naples and Sicily), the Duchy of Milan, the Catholic provinces of the Netherlands (now modern Belgium), and vast American possessions. The possible combination of these thrones with that of France, or with the Austrian hereditary estates, would have upset the maintenance of the delicate "balance of power" which had governed European relations since the peace of Westphalia in 1648. This objective was to be a preoccupation of European diplomacy for two and a half centuries.

The combination of the thrones of Spain (and later the Indies, as its possessions in America were called), with the Netherlands, had occurred as a result of the marriage of Juana "the Mad", daughter of Ferdinand of Aragon and Isabel the Catholic to Archduke Philip "the Fair" son of Emperor Maximilian I (of Habsburg) in 1496. Their son, Charles I (Emperor Charles V, 1500-1558) had extended his rule by the unification of the Aragon inheritance of Naples and Sicily, and the capture of the Duchy of Milan. In addition he had inherited from his grandfather the Archduchy of Austria and its dependent states. In 1556 he had abdicated the throne of the Spanish Empire to his only son, Philip II, who founded the Spanish branch of the Habsburgs, while the German and Austrian sovereignties were ceded to his younger brother, Ferdinand, King of Bohemia, who was elected Emperor two years later, and headed the junior, Austrian line.

The Spanish succession was governed by laws II, III and V of Title XV of the Partida II, of 1263, laws XL and XLV of the Toro of 1505, law VI of Title I of Book II and laws IV, V and VIII of Title VII of Book V of the Recopilación of 1567. These laws required that the Crowns of the Spanish Kingdoms and the Indies should pass by primogeniture, males having preference over females in each generation. Since Charles II had no issue, the succession was inevitably going to be problematic, as the nearest heir genealogically was the Dauphin, the only surviving son of Charles's deceased elder sister, Maria Teresa (wife of Louis XIV of France). Anticipating the inevitable hostility to increasing French power, and because of strained relations between France and Spain in the 1690s, King Charles first considered a solution that would satisfy neither France nor Austria, the likely competing claimants, and selected a more junior candidate as heir. This was the only surviving grandson of the late King’s youngest sister, the Infanta Margarita (famously painted several times by Diego Velazquez), Duke Joseph Ferdinand of Bavaria (1692-1699), who was declared heir and given the title Prince of the Asturias. He predeceased his great-uncle without issue, however, removing any possibility of avoiding a succession crisis. Charles II had become convinced in any case that the Crown should pass according to the ancient laws of succession.

As the Dauphin was also heir to the French throne it was sensibly decided that Spain would be ceded to his second son, Philip, Duke of Anjou. This solution insured the separation of the French and Spanish Crowns, an objective of two earlier treaties and of dynastic renunciations made by both the Infanta Maria Teresa, and her aunt Infanta Anna, earlier in the 17th century. Following the Dauphin and his descendants, the next heir was Louis XIV himself, as son of the Infanta Anna, and then his brother Philip, Duke of Orléans (who died six months later to be succeeded in his titles and claims by his son Philip, then Duke of Chartres, later Duke of Orléans). The Emperor Leopold I (1640-1705), who immediately challenged Philip's succession, was the only surviving son of the Infanta Maria Anna, youngest sister of Philip IV and Anne, Queen of France. He refused to accept the testament of Charles II, demanding that the terms of the two renunciations of their Spanish rights made by the Infantas Maria Teresa and Anna be implemented, thereby leaving him as the next heir of line. Thus he initiated the fourteen-year conflict known as the War of the Spanish Succession.

Charles II had made it clear in his testament that he believed the law of succession to the Spanish Crown dictated its passage to the House of France, a view supported by his senior advisers. France’s European rivals, however, led by Great Britain (whose then de facto King was also Stadtholder of the United Provinces of the Netherlands, themselves the object of French territorial lust) and the Emperor, saw Philip’s succession as a threat to their own security. The subsequent war proved a disaster for France and, although Philip kept his Spanish throne, he eventually lost all of Spain’s other European possessions, while the cost to the French exchequer proved a long-term impediment to economic growth and prosperity.

The almost immediate successes of the alliance of Austria with Britain and the Netherlands emboldened the Emperor to declare his younger son, the Archduke Charles, Spanish King as titular Charles III on 12 Sep 1703. In choosing Charles he adopted the same solution as the late King of Spain, leaving his elder son as future King of the Romans and Emperor and heir to the Habsburg hereditary states. This attempt at maintaining the all important balance of power came to nothing when the Archduke-King became King of the Romans on the death of his elder brother without male heirs in 1711. He was the last male representative of the House of Habsburg at his death in 1740.

The Treaties of Utrecht between France and Great Britain, Spain and Great Britain, and the Netherlands and France of 1713, and between Spain and the Netherlands of 1714; the Treaty of Baden/Rastätt between France and the Emperor of 1714; the Treaty of the Hague between France, Great Britain and the United Provinces of the Netherlands of 1714; the Treaty, or Quadruple Alliance of London between France, Great Britain, the Emperor and Savoy (in lieu of the United Provinces of the Netherlands who withdrew at the last minute) of 1718; the Treaty of the Hague between Spain and the Emperor of 1720; and the Treaty of Vienna between Spain and the Emperor of 1725; were each intended to settle the conflicting claims resulting from this war. Each of them included renunciations by the various parties of claims on territories and of rights to future successions, almost all of which were honoured more in the breach than in their execution.

The potential validity of the reciprocal renunciations to the French and Spanish thrones demanded by Britain, and annexed to the Utrecht Treaties, was disputed by Louis XIV’s Foreign Minister and Chancellor even before they were signed, and their legality challenged by the senior Peers of the French Parlement charged with registering the relevant acts. The failure to execute one of the essential elements of the new dynastic arrangements, the co-renunciation by the Emperor of his Spanish rights, rendered them "provisional" and "doubtful" even if they could have been binding in French national law, which most constitutional scholars have questioned. Their subsequent breach by the intermarriage of French and Spanish dynasts, whose ancestors' renunciations would have excluded their descendants, is evidence that the total exclusion of members of each line from the throne of the other was never intended. The breach of almost all the terms apportioning territories amply demonstrated how the fundamentals of these Treaties were disregarded often within only a few months of their signature.

The succession law passed by the National Assembly in 1789, incorporated in slightly different words in the 1791 French Constitution, stated that the effect of dynastic renunciations was not prejudged, leaving seemingly open the question of whether the legislators of 1789/91 considered them valid. Those charged with drafting this clause, and the members of the National Assembly who debated and  voted to approve it, were fully cognisant of its implications in regard to the rights of the Spanish branch. Comments on this clause by both the Spanish Ambassador and the future King of the French, Louis-Philippe, demonstrate that in their case they presumed this clause to have recognized the validity of the Spanish line's rights, preferred ahead of the family of Orleans.  The abolition of semi-Salic Law in Spain in 1830 was considered by many contemporary authorities to have invalidated yet another condition, the guarantee of the Spanish succession to Philip V’s descendants. The binding nature of the terms of the renunciations was expressly challenged by the governments of France and Spain in their responses to protests by Great Britain at the marriage of the heiress presumptive to the Spanish throne to a French Prince in 1846. The conclusions of both these governments, in opposition to the position taken by Great Britain, were that these acts were limited to two ends, prevention of the union of the two Crowns, and the guarantee of the Spanish Crown to Philip V's descendants.

The senior line of the House of Bourbon, descended from Louis XV, became extinct with the death of titular King Henri V, Count of Chambord, in 1883 but this line had already ceased reign with the deposition of his grandfather, Charles X, in 1830. The Orléanist Monarchy, which had replaced it was itself overthrown in 1848, so the binding nature of Philip's renunciation has never been formally tested by actual possession of the Crown being disputed between the senior line (Bourbon) and junior line (Orléans) claimants. The Headship of the House of France was assumed by the senior male descendant of Philip V on the basis that these renunciations were not binding or valid. At the same time, the senior descendant of the Duke of Orléans made his claim on the basis that they were binding in perpetuity. With the days of the French Monarchy now a distant memory, the continuing validity of these renunciations is a matter of no political importance; this essay, however, is designed to provide a context in which the legitimate representative of the ancient French Monarchy may be identified.

To: Part Two: The Will, the Treaties and the Renunciations