Part Two: The Will, the Treaties and the Renunciations

Charles II of Spain, in his Testament of 2 Oct 1700, stated: "Recognising, in accordance with various counsels proffered by Our Ministers of State and Our judiciary to the effect that the reason which has compelled the Lady Anne and the Lady Marie-Therese, both of whom were Queens of France, the one Our aunt and the other Our sister, to renounce Their respective rights to these Our Realms was none other than fear of the consequences for Spain which might ensue from union with the Crown of France; and recognising that, while this cause for concern is no longer a valid one, the right of the closest relative to succeed to the Throne still subsists under the laws of these Realms, and that this claim can now be entered on behalf of the second son of the Dauphin of France, We do herewith, in due observance of these laws, appoint as Our successor (in the eventuality of God calling Us to Himself while We are yet childless) the Duke of Anjou, second son of the Dauphin, and We do name Him heir to all Our Realms and all Our Domains without any exception whatever. … And it being Our intention that, in the interests of the peace of Christendom and of all Europe and of the well-being of these Our Realms, this Crown and that of France shall ever remain sundered, We do declare, with reference to the stipulations made above, that, if the said Duke of Anjou should die before We are Ourselves called to God, or should He accede to the Throne of France and prefer to wear that Crown rather than that of these Our Realms, then the said Crown shall pass to the Duke de Berry, His brother, and the third son of the said Dauphin, and that all the conditions set out above shall pertain in this eventuality; and that, should the Duke de Berry die before We are Ourselves called, or should He accede to the Throne of France, We do declare that it is Our will that this Our Crown pass to the Archduke, second son of Our uncle, the Emperor, passing over, for the same reasons that We have listed above, - and because of the same concern We showed above for the common-weal - the firstborn of the Emperor, Our uncle; and should the Archduke die before We are Ourselves called to the life hereafter, We do declare that is Our will that, in such an eventuality, the Crown pass to the Duke of Savoy and to His heirs."[Doc 1. Testament of Charles II]. This notably omitted the evident rights of the line of Orléans, causing some resentment on the part of the Duke (leading to the promulgation of the 1703 Pragmatic Decree restating his rights). Charles II died on 1st Nov 1700 and his testament arrived at Fontainebleau on 9th November following. The King’s foreign secretary, the Marquis de Torcy, immediately delivered a note to the Ambassadors of the Netherlands and Great Britain, stating that if the King accepted the testament, the Monarchies of France and Spain would remain separated.

It was well understood by contemporaries that the purpose of the renunciations of 1612/15/19, 1659/60 noted in the late King's testament, and likewise those of 1712/13 was to prevent the union of Spain and France under one crown, for the sake of Spanish independence and to preserve the European balance of power. Despite Louis XIV’s hyperbolic statement "there are no more Pyrenees", the union of the two countries was never proposed; indeed the history of these marriages and renunciations indicate that their purpose was to prevent the Hispano-Gallic union; not to deprive the members of either branch of the House of France of their right of succession to one or other Crown. This was the stated reason behind the renunciations made by the Infantas Anne and Maria Teresa as well as those of Philip V and the Dukes of Berry and Orléans. It was also the stated reason in the several Treaties of Utrecht, and the Treaties that followed over the next quarter-century.

The phrasing used in the Treaty of Utrecht contrasted with the first conditions the allied powers sought to impose on France and Spain in the "Preliminaries" proposed at The Hague in 1709-1710, and represented an improvement in the terms. These first proposals, dated 29 May 1709 and signed by the Duke of Marlborough for Great Britain and Prince Eugène for the Emperor, were presented to a shocked Marquis de Torcy, Foreign Minister, when he arrived at The Hague. Britain and her allies demanded complete capitulation by both Spain and France, requiring that France must recognise the Archduke as Charles III King of Spain with all its possessions, grant Strasbourg, Brisach, Landau and the Alsace to the Emperor, and give Cassel, Lille, Tournai, Condé and other cities in French Flanders to the Netherlands. Article 6 of the preliminaries stated: "The Monarchy of Spain, in its entirety, must remain with the House of Austria, without any of the parties being able to dismember it, nor can the said Monarchy nor any part of it be united with that of France, neither under the same King, nor can any prince of the House of France ever become its sovereign, in any manner at all; by testaments, acts, succession, convention, marriage, gifts, sales, contracts or other means, because it must be that no prince who could reign in France, nor any prince of the House of France, can ever reign in Spain, nor acquire, in the expectation of the said Monarchy, any fortified towns, places or countries, in any part, principally in the Netherlands, by virtue of any gifts, sales, exchanges, marital contracts, inheritances, appeals, succession by testaments or by intestacy, in any sort or manner possible, neither for himself, nor for the princes his children and brothers, their heirs and descendants." Article IV gave the "Duke of Anjou," as the text referred to Philip V throughout, two months to vacate all the Spanish territories, and the French the same time to withdraw all their forces and hand over any places they held (an impossible time scale) failing which hostilities would be resumed. Finally they required that if the King of Spain refused to comply, France must join Britain and the Emperor in going to war to eject him.

These demands went much further than simply requiring the separation of the Crowns, or even preventing a Spanish dynast from inheriting the French crown or vice-versa. They made it impossible for any descendant of the House of France to reign in Spain or in any part of the Spanish Empire and demanded that Louis XIV be prepared to go to war with his own grandson. Since the marital renunciations of previous Infantas who had married French Kings were considered void, these preliminaries would have even prevented marriages between members of the Royal House of France and whatever dynasty might be installed in Spain in the future. The preliminaries attacked the whole family of France, even the Condé line that did not even descend from the Infantas Anna or Maria-Teresa in the male line. Although the French refused to accept these terms, their defeat at the battle of Malplaquet forced them back to negotiate (at Gertruydenberg, in February 1710). Louis XIV was forced to agree to cease hostilities on behalf of Spain, and to persuade his grandson to give up his Crown. He agreed that the two Monarchies would never be united, and considered acceding to the extreme conditions that no prince of his House would ever rule there. It was the prospect of having to declare war on Philip V, however, insisted upon by the allies, that proved to be so absolutely unacceptable that hostilities once again resumed.

For the first time for several years the situation began to change in France’s favour. The Emperor had died unexpectedly at the age of thirty-three, leaving two surviving daughters, so Archduke Charles now became King of the Romans. The prospect of the Empire of Charles V being reformed now proved less attractive to Great Britain, and although her commitment to continue to recognise Charles as King of Spain could not be easily repudiated, she proved ready to do so to bring peace. Britain began negotiations with France without consulting Austria or the Netherlands (the dignity of Stadtholder had been separated from the British crown since 1702) in January 1712, and at first expressed willingness to allow Philip to keep his Spanish throne without any other demands. The sudden deaths of several Princes du Sang, which increased the risk of Philip V succeeding to France and the possible combination of the two thrones, led to discussions on how to prevent their union.

The British considered that permanent separation could only be achieved by a decisive and binding renunciation to the French Crown by Philip V. Torcy warned in a mémoire presented in the name of the King to the British Minister, the Earl of Oxford, on 18 Mar 1712: "France can never consent to become a province of Spain, and Spain would think the same in regard to France. It is a question of taking solid measures to prevent the union of the two monarchies…. But one must exclude absolutely the means you propose since… they would contravene the fundamental laws of the kingdom. Following these laws, the prince nearest to the crown is heir by necessity … he succeeds not as heir but as master of the kingdom … not by choice but only by right of his birth. He is accountable for the Crown not by the testament of his predecessor, nor by any edict, nor any decree, nor by the generosity of any person, but by the law. This law is regarded as the product of that which has established all monarchies, and we are persuaded, in France, that only God can abolish it. No renunciation can destroy it, and if the King of Spain gives his consent, for the good of peace and in obedience to the King his grandfather, one is mistaken in receiving it as a sufficient measure to prevent that ill that one hopes to avoid". [Doc 2. Letter from the Marquis de Torcy]. This view found an echo in the British House of Lords, the Peers voting in an address to the Queen (Anne), that the descendants of the Duke of Anjou could not be deprived of a right "given them by their birth when this right is such that with the consent of all Frenchmen it must be maintained inviolable according the fundamental constitution of the Kingdom." [Duke of Saint Simon, Papiers en marge des mémoires, Club français du livre, 1954, p. 250.].

Torcy's counsel that to hope to permanently separate the Crowns by relying simply on a renunciation would ultimately prove a failure and could lead to even greater danger, even if the King of Spain was so persuaded by his grandfather, was not heeded. The clarity of this opinion, which represented the view of contemporary French constitutional authorities, is evidence that the decision to proceed with the renunciations was made to satisfy the demands of the allies, and not with any expectation that they could effectively deprive a French Prince of his rights. The British misunderstood the functions and duties of the Paris Parlement, supposing it to be a body such as that which met at Westminster, capable itself of initiating and making law. The Paris Parlement, however, while the first among the various provincial Parlements, was not a law making body, but was first of all a Court, whose responsibility was the registration of royal acts, without which they could not enter the corpus of law. Hence the mere registration of a royal act could not change something as fundamental as the succession to the Crown as the British Parliament had done in 1689 when it declared that James II had abdicated, and in 1701 when the Act of Settlement established the Protestant succession in Great Britain.

The second Preliminaries to the Treaties of Utrecht had opened on 15 Mar 1712, with a demand addressed to French Foreign Minister the Marquis de Torcy that Philip V should renounce the throne of France for himself and his successors. Louis XIV wrote to Princess Orsini (Princesse des Ursins, who exercised considerable influence on the Spanish King, and had managed to obtain for herself the promise of a sovereign principality at la Roche-sur-Yon), on 9 Apr 1712: "I am not capable, nor strong enough to give him (Philip V) good advice. An astute politician would tell him to promise everything to make peace, because the renunciations would contradict the laws and can never survive; but I do not know if this advice will be to his taste…." [Paris, Ministry of Foreign Affairs, Mémoires et Documents, Espagne, Renonciations du Roy d'Espagne, vol 54, 10, pp. 236 r-v]. The brilliant Marlborough had lost his command, however, because of domestic British politics, and the less-effective Duke of Ormonde replaced him. Britain's allies were unwilling to place their troops under this untested commander and the British likewise were unwilling to give supreme command to Prince Eugène. The French were keen to separate Britain from her allies, and determined to try and find a compromise. On 28 May, Louis XIV proposed to Philip that he simply agree to renounce Spain upon succeeding but this the Spanish King at first refused to do, pointing out that his rights derived from the fundamental laws and that Louis XIV had issued letters patent guaranteeing this. The French persuaded the British to continue negotiations, however, and a truce was signed on 21 June. Philip V, now under increasing pressure from his grandfather to agree to the demand for a renunciation, made it clear on 3 July 1712 that he would only sign such an act to facilitate peace and "so that the Spanish Monarchy will be assured to his descendants". This important objective remained an essential element of the negotiations; there was no advantage in Philip V renouncing his French rights if his descendants were not going to remain in possession of the Spanish throne.

It was further agreed between the British and French, in a convention dated 21 Aug 1712 made without the consent of Austria, that failing Philip's descendants the Spanish Crown would pass to the Duke of Savoy, although his family was genealogically inferior to the descendants of Philip III's sisters (the Duke of Orléans, who was forced to renounce, and the Emperor, who refused to do so). The Savoy dynasty continued to claim an interest in the Spanish succession, and in 1830 the King of Sardinia protested at the repeal of Salic law, which invalidated his rights under the terms of the Treaty. The assignment of this potential claim in the subsequent change of the Spanish succession law made it clear that this right would be confined to the male descendants of the Duke of Savoy, and would then pass to the line of Savoy-Carignano and their male heirs, presently represented by Crown Prince Vittorio Emanuele, Duke of Savoy. The Marshal de Villars in July 1712, defeated an imperial army at Denain, and successfully evaded Prince Eugène's attempt to cut him off put new heart into the French. Britain, meanwhile, tried in vain to gain acceptance from her allies for the new terms for peace, although the Netherlands eventually joined the negotiations in late 1712, signing separate treaties with both France and Spain the following year.

The first Treaty of Utrecht (between Britain and France), dated 31 Mar 1713, in enforcing these renunciations, briefly restated their substance, with the intention of insuring that for (Article VI) "the same purpose, the Crowns of France and Spain are so divided and separated from each other, that the aforesaid Renunciations, and the other Transactions relating thereto, remaining in force, and being truly and faithfully observed, they can never be joined in one." The renunciations themselves were included in this Treaty not as integral parts thereof, but as "annexed documents" since the princes making them were not parties or signatories to the Anglo-French Treaty. [Doc 3. Text of Article VI of the Franco-British Treaty of Utrecht].

The second Treaty of Utrecht (between France and the United Provinces of the Netherlands), dated 11 April 1713, stated, in Article 31: "….. it is absolutely necessary to prevent the crowns of France and of Spain from ever being able to be united under the head of the same King …….. and to find the means of preventing this union by these renunciations….. and because by the said renunciations it has been established that neither the Catholic King himself, nor any of his descendants, can come to pretend to the crown of France…. And since by these reciprocal on the part of France … which tend to the same end, the crowns of Spain and of France will always be separated……" [Doc 4. French Text of article 37 of the Dutch-French Treaty of Utrecht]

The third Treaty of Utrecht (between Spain and Great Britain), dated 10 July 1713, was signed after Philip V had altered the succession in Spain, introducing semi-Salic law, and this change was understood by both parties to be an integral part of the Treaty arrangements (indeed the new law of succession was attached to the Treaty, along with the other related acts). Article II read: "That all fears that the Realms of France and Spain might ever be conjoined in one Person shall be allayed, and that the peace herein convened between the two Powers shall be firmly established and the proper balance of forces ever guaranteed and peace thereby ensured, His Catholic Majesty does here reiterate and reaffirm the abdication of all His rights to the Crown of France. Hereto were appended the Act of Abdication, the resolution of the Cortes, the Royal Decree naming the House of Savoy as lawful heirs and successors to the Spanish Throne, the Acts of Renunciation made by the French Royal Family of all Their claims and rights to the Throne of Spain, and the epistle of His Most Christian Majesty." [Doc 5. Articles II and III of the Treaty of Utrecht between Spain and Great Britain].

The fourth Treaty of Utrecht of 20 Jun 1714 between Spain and the Netherlands, annexed to the Treaty of Utrecht of 1713, article 37 states: "Because the happy continuation of peace, also the peace and security of Europe, depends among other principles that the two crowns of Spain and France remain always independent the one from the other, and that they can never be united upon the head of the same King, His Catholic Majesty, to this end, has renounced. And that, on the other hand, the princes of the Royal House of France have also renounced, for themselves, their heirs and successors in perpetuity and in the strongest terms, to any right, title or pretension that they might have to the crown of Spain. And that also that the two Crowns of Spain and France shall ever remain sundered and never shall they be permitted to be conjoined in one person." The Dutch feared France gaining possession of the Netherlands, a threat to their security, and the succession of a French prince to the Crown of Spain gave rise to the fear that this would justify an attempt to reaffirm the Spanish claim to the Netherlands.

In each of these treaties the purpose of the renunciation articles is explained: to separate the two Crowns permanently and prevent their union in the same person. The intention was not, as had been proposed in the negotiations that stalled in 1709-10, to permanently deprive any member of the House of France from ever becoming King of Spain. The renunciations to Spain had been couched in similar terms on two occasions the previous century. When the Infanta Anne (of Austria), daughter of Philip III, had married Louis XIII, she had been required to renounce the succession to the Spanish Crown for herself and her descendants in her marriage contract of 22 Aug 1612, and again shortly before her marriage on 18 Oct 1615; once again the purpose was to prevent the union of the two Crowns: "… and to prevent that the said kingdoms from being united and any occasion when they could be united… the most serene Infanta Anne and her children, male or female, and their descendants, to any degree that they might be found, cannot succeed to the kingdoms, states and lordships which belong to His Catholic Majesty". As she was a minor at the time, she renewed this renunciation in 1619, and it was then enforced into law in Spain by Pragmatic Decree on 3 Jun 1619, and included as Law XII of Title VII of Book V of the Nueva Recopilación de las leyes de Castilla of 1640 (and again, curiously, as Law IV of Title I of Book III of the Novísima recopilación of 1803). [Doc 6. Pragmatic Decree of Philip III excluding the Infanta Anne, 3 Jun 1619].

Likewise, the contract of marriage between Louis XIV and his first cousin, Marie-Thérèse (Infanta Maria-Teresa), of 7 Nov 1659, made the same provision, in explicit terms, again stating this was done to prevent the union of the two Crowns. In both this contract and that of Anne, specific reference is made to the interests of the European states, and Spanish dignity (a metaphor for independence). Marie-Thérèse was the eldest of Philip IV’s surviving children with two younger brothers in frail health. Don Luis de Haro, who negotiated the contract on behalf of the King of Spain, stated to M. de Lionne, in 1659 that "if the Crown of Spain was to lose the two young Infants who were then living, there would be no subject of the Monarchy who, not withstanding all the renunciations that could be made by the Infanta, would not regard her as their true Queen…. Because a simple article of a treaty cannot destroy the great fundamentals of a monarchy…." [M. Mignet, Négociations relatives à la succession d'Espagne sous Louis XIV, vol I, pp. 43 & ff]. The marriage contract was included in the Treaty of the Pyrenees of 7 Nov 1659 (registered in the Parlement of Paris) and on 2 Jun 1660 Marie-Thérèse, in execution of her marriage contract, signed a solemn renunciation "to prevent the union of the two Crowns." [Doc 7. Extracts from contract of marriage between Louis XIV and Infanta Maria Teresa, 7 Nov 1659, annexed to the Treaty of the Pyrenees. Doc 8. Renunciation of Infanta Maria Teresa 2 Jun 1660, annexed to the Treaty of the Pyrenees]. Philip IV, in his testament wrote confirming his sister’s and daughter’s renunciations, both made, as he stated, to prevent the union of the two Crowns but describing these reason for these acts as "a convention". [Doc 9. Extracts from Testament of Philip IV of Spain, French translation].

Both the Dukes of Berry and Orléans directly benefited from Philip’s renunciation, as they were thereby placed closer to the throne. The head of the next line, however, the Prince of Condé, who also benefited for the same reason, objected in a letter to the King that "the right of succession to the Crown depends on God alone, which no person can alter, nor can it be changed by any power on earth, ... and which pertains successively to the Princes of the Royal House of France, each following the order and rank of his birth." Charles Giraud in a text produced at the request of Louis-Philippe, King of the French, head of the Orléans family, wrote a devastatingly clear rejection of the validity of the renunciations stating that the princes signing these renunciations had no right to prevent their descendants from inheriting the succession rights they had inherited from their ancestors. He went on to say that no sovereign, in any modern monarchy, could transmit the crown to a younger son to the detriment of an elder. [Doc 10. Le Traité d’Utrecht, Paris 1847, pp. 120-121].

This absolute rule had to be tempered by the practical and necessary measure of preventing the union of the two Crowns. Although, in 1700, the immediate and nearest heir of Charles II of Spain was actually the Dauphin, followed by his eldest son the Duke of Burgundy, they were also respectively in a similar position of succession to the throne of France. In fact neither succeeded to the latter, both tragically predeceasing their father and grandfather, Louis XIV, who was eventually succeeded by his great-grandson, as Louis XV. The laws of succession in France were simple; the throne must pass from male to male born of legitimate marriage by order of primogeniture. The Spanish succession laws (at least those prevailing when the Treaty of Utrecht negotiations began), required that the sons of the King always succeed to the Crown by primogeniture and with preference over their sisters, but if the King only left daughters, the eldest would succeed according to primogeniture in preference to her uncles (and any more distant male branch). To provide a surety of his rights and those of his descendants, Philip V determined to insure for his family the same guarantee that had governed his rights to the throne of France. The law that was passed, introducing semi-Salic succession, provided that succession to the throne would be limited to Philip’s male descendants, unless they became entirely extinct in which case it would pass to the nearest female heiress of the last surviving male, and only failing such an heiress would the line of the Duke of Savoy be substituted. This law was annexed to the Anglo-Hispanic Treaty of Utrecht that followed in July. [Doc 11. Revised Law of Succession in Spain 1713, French translation, and see below for further discussion].

The reciprocal renunciations made by Philip V, King of Spain, to the throne of France, and by two Princes of the House of France to the Spanish throne, were intended to settle the balance of power in Europe on a permanent basis by permanently separating the French and Spanish Crowns. That these acts were reciprocal made them dependent upon each other, so that the breach of the terms by one party would thereby invalidate the obligations made by the other party. The intentions and desires of the parties to the treaties to which these renunciations were annexed were largely irreconcilable. France wished to bring a disastrous war to an end, but she also intended to reclaim her position of influence in Europe without any limitation on the powers of her Monarchy, while insuring a friendly dynasty was established to the south of the Pyrenees. Great Britain wanted to insure that France’s powers in Europe would be limited on a permanent basis, hoping to acquire the French and Spanish possessions on the North American continent and in the Caribbean, and the French colony in India. Without the participation of Austria in the settlement, it was evident that Philip V's throne could not be safely insured. Spain was not a party to the treaty between France and Great Britain, signing a separate peace with the British Queen. The King of Spain’s renunciation of his French rights was made not as Duke of Anjou but as King of Spain, and was only an annexed item to the Anglo-French Treaty, whose second article contains a more explicit renunciation than that included in the Anglo-Hispanic Treaty. In making this renunciation the King of Spain reasonably expected to be able to insure the restoration of peace and obtain a firm assurance of international recognition of his right to rule Spain and its Empire, without challenge from the other powers. At the time he hoped to hold on to Spain’s Italian possessions, and despite being forced to surrender them in the Treaties of 1713 was determined to recover them. Neither did he or his successors ever gave up their hope of driving the British out of Gibraltar, which they had been forced to cede to Britain in the Treaty of 1713. Despite repeated Spanish attempts to recover the Rock, it remains a British possession to this day.

The United Provinces of the Netherlands wished to preserve themselves free of any threat of French encroachment, and security from Spanish or Imperial territorial ambitions. The Emperor, who withdrew from the preliminaries and refused to join the peace of Utrecht, wanted to insure France’s eastern boundaries were firmly confined, and obtain as much of the territories of the former Spanish Habsburg Monarchy as he was able. He refused to surrender his claim to Spain and its Empire and continued to maintain this even after undertaking to make a renunciation thereof in the Quadruple Alliance of 1718.

The renunciation made by Philip V on 5 Nov 1712 began by stating clearly its intended purpose, to separate the two crowns, and its reciprocal nature. "Philip, by the grace of God, King of Castille, of Aragon, the Two Sicilies, etc . We have determined, both to establish this treaty on a firm footing and to spread the boon of peace, thus ensuring the good of all people and the peaceful balance of power with Europe.... to accede to the representations made by England and approved by His Majesty, Our Grandfather, and, so that it shall henceforth never come within the realms of possibility for this Crown to be wed with that of France, to agree to renounce, in Our own Name and in that of all Our descendants, all rights to the French Throne, which renunciation shall be matched by an equal and opposite renunciation ... ; ... with the assurance that, ever adhering to this fundamental maxim that the balance of power within Europe shall be maintained, all steps shall be taken to guarantee that at no time shall this inheritance fall to the House of Austria, for, should this happen, this House, even without the domains and territories attaching to the Empire, would be made formidably powerful, a factor which in the past made the separation of the hereditary estates enjoyed by the House of Austria from the body of the Spanish Realms a laudable enterprise. It has accordingly been agreed between Ourselves, His Majesty the King of England and His Majesty, Our Grandfather, that, in the event of Our dying without issue, or of Our line being for any reason interrupted and not enjoying due continuance, the heir to this Our Throne shall be the Duke of Savoy and His sons… We, Philip, by the Grace of God, King of Castille, with this present instrument, motu proprio, of our free will, and spontaneously, in Our own Name and in that of Our heirs and successors, do hereby renounce, relinquish and forswear for ever, Amen, all rights, claims and entitlements which We, or any of Our heirs or successors, have made in the past or which shall be made hereafter, to the succession to the French Throne; ... It is Our will and desire that henceforth any such rights and claims invested in Us or Our heirs and descendants shall be deemed to have passed and been transferred to the person of Our brother the Duke of Berry and to His male descendants born of lawful wedlock; and should that line be in default and not enjoy its due continuance, that all these rights and claims shall be deemed to have passed and been transferred to the person of Our Uncle, the Duke of Orléans, and to His male descendants born of lawful wedlock; and should that line be in default and not enjoy its due continuance, that all these rights and claims shall be deemed to have passed and been transferred to the person of Our Cousin, the Duke of Bourbon, and to His male descendants born of lawful wedlock; and so on through all the Princes of France in the order that They shall be called to the succession by the precedence of Their birth, for ever and ever Amen. ... And that this Our Act of Abdication of all those rights and entitlements that do attach to Us and to Our heirs and descendants in respect of the Crown of France may enjoy full and complete effect and be held as law, We do specifically renounce and foreswear all those inherited rights which do attach to Us in virtue of the letters patent and instrument in which His Majesty, Our Grandfather did appoint Us sole lawful successor to the said Crown of France, and which were issued at Versailles in the month of December, 1700, and passed, approved and sanctioned by Parliament; and We do hereby declare that it is Our wish that this instrument shall in no wise entitle Us to the said succession and We do here refute the stipulations contained therein and do declare them to be null and void and of no legal standing whatever and do command them to be cancelled ... And that this Our Act of Abdication and the stipulations contained therein may enjoy full and complete effect and be held as Law, We do here again pledge Our Troth and give Our Royal Word, and do solemnly swear by the Holy Gospels on which We do here place Our Hand, that We shall ever keep, observe and prove faithful to this Our Act of Abdication and Renunciation; and We do make this solemn pledge both in Our own Name and in that of Our heirs and successors; and We do swear that We shall observe all the stipulations contained therein in the light of the most literal, natural and obvious interpretation of them, and that We have never sought nor shall ever seek to be released from this Our Royal Oath, and, that should any third person seek such release in Our Name or should it be granted Us without Our having sought it, We shall never avail Ourselves of it..." [Doc 12. Text in French of the Renunciation of Philip V; Doc 13. Text in English of the same].

This act was registered by the Spanish Cortes, confirmed by Louis XIV in letters patent of 15 May 1713, registered in the Paris Parlement, and read as an annexed item to the Franco-British Treaty of Utrecht and the Spanish-British Treaty.

Charles, Duke of Berry’s renunciation had been made in a document signed at Marly, on 24 Nov 1712. It reads in its most important particulars: "The King, our very honoured Lord and grandfather, and the King of Spain, our very dear brother, have agreed together and remain in agreement with the Queen of Great Britain, that reciprocal renunciations must be made by all the Princes and future heirs to the Crown of France and the Crown of Spain to all the rights which could belong to each of them to the succession to one or the other kingdom, establishing a permanent right to the succession to the crown of Spain in the line which would be enabled and declared immediate to that of King Philip V our brother…….. that we shall renounce also, for ourselves and for our descendants, to the crown of Spain; that the Duke of Orléans, our very dear uncle, will do the same, so that all the lines of France and Spain, respectively and relatively will be excluded for always and in every manner from all rights that the lines of France could have to the crown of Spain, and the lines of Spain to the crown of France; and finally that one will prevent, under the pretext of the said renunciations, and under any other pretext that might occur, the house of Austria from exercising the pretensions it could have to the succession to the Spanish monarchy, since in unifying this monarchy to the countries and hereditary States of that house would be formidable, even without the union of the Empire to the other powers that they share and if this would be encompassed, it would destroy the equality that has been established today to assure and affirm more perfectly the peace of Christianity….".

Berry having reiterated the need to separate and exclude from the Spanish succession both his own descendants and those of the House of Austria, and confirmed and "ratifying the clause of their (Anne, wife of Louis XIII and Marie-Thérèse, wife of Louis XIV) testaments and the renunciations made by these ladies our grandmother and great-grandmother, we renounce at the same time to any right that could pertain to our children and descendants by virtue of the testament of King Charles II, who notwithstanding that which has been stated above, could call us to the succession to the crown of Spain….". [Doc 14. Complete text in French of the Renunciation of the Duke of Berry]. This latter clause undid the effects of the 1703 law of Philip V, registered in the Cortes, declaring the renunciations of the two Infantas void; Berry’s renunciation, like that of his cousin, Orléans, was duly registered in the Cortes. We see here emphasis given not only to the reciprocal nature of the renunciations, but also that the renunciations were intended to guarantee the Spanish Crown to the descendants of Philip V and to prevent the House of Austria from claiming the Spanish Throne. In the face of the Emperor's refusal to renounce his claims, this renunciation was consequently only conditional.

The Duke of Orléans' rights were inherited from his grandmother, Queen Anne, wife of Louis XIII, but his name had been omitted from those eligible to succeed in the testament of Charles II. He had therefore asked his cousin to restate them, which Philip V had done in the 1703 law reinstating the rights of all the descendants of Queen Anne. The Duke of Orléans’ reciprocal renunciation was couched in similar terms to that of his cousin Berry, beginning with a statement that the principal reason for his act was to bring about peace, and separate the two Crowns of France and Spain. For this reason "reciprocal renunciations shall be made; as is known, by the Catholic King Philip V, our nephew, for him and for all his descendants, to the crown of France, as also by the Duke of Berry, our very-dear nephew, and by us, for ourselves and for all our descendants, to the crown of Spain; on the condition that also the house of Austria, nor any of its descendants, cannot succeed to the crown of Spain, because this house, even without the union with the Empire would be so formidable if a new power is added to its ancient domains; and consequently, the equilibrium that one wants to establish, for the good of all the Princes and States of Europe, would cease….. We have resolved to make this withdrawal, this abdication and this renunciation of all our rights, for us and in the name of all our successors and descendants. And to accomplish this resolution, we have taken on our pure, free and unequivocal will, we declare and hold to those here present, we, our children and descendants to exclude them, make them incapable, absolutely forever, and without limitation, nor distinction of persons, of degrees or sex, of any action, of any right to the succession to the crown of Spain …… We will and consent for ourselves and our descendants, that for now and for always, we shall hold ourselves themselves to be excluded, unable and incapable, in any degree that might be found, and in any manner that the succession could arrive at our line, and to all the others, both of the house of France and that of Austria, and all the descendants of one or other house, who, as has been said and understood, must also be held to be removed and excluded." [Doc 15. Complete text in French of the Renunciation of the Duke of Orléans]. Not only did the Duke of Orléans emphasise again the reciprocal nature of his renunciation, but also he tied it specifically to the condition that the house of Austria be excluded from the Spanish succession.

Letters patent issued by Louis XIV of 1/10 March 1713, confirmed the reciprocal renunciations made by the Duke of Berry and the Duke of Orléans, also confirming that the renunciations were made on behalf of their male and female descendants: "as also the renunciation acts of our grandson the Duke of Berry, that of our said nephew the Duke of Orleáns, are made reciprocal to their rights to the Crown of Spain, for themselves, and their descendants male and female…. We wish to confirm that the said renunciation act of our said brother and grandson the king of Spain shall be henceforth regarded and considered as excluded from our succession, that his heirs, successors and descendants shall be excluded in perpetuity and regarded as incapable of recovering them." It is evident that these texts were drawn up to satisfy France's enemies, who wanted to insure that they were unconditional and final in any straightforward interpretation. The detailed terms of these seeming all-embracing renunciations cannot be read selectively; neither is it possible to ignore their reciprocal nature, by which an act that invalidated the renunciation of one side would thereby invalidate that of the other. Nor can their implied reliance on the permanent exclusion of the house of Austria, which was never satisfactorily effected, be disregarded. Nor is it possible to overlook their purported scope, embracing in their exclusion from the Spanish succession not only the male line but also the female line descendants in perpetuity (females were in any case excluded from the French succession and could not transmit any rights). Thus any descendants of a union between a descendant of Philip V and the Duke of Orléans would seem to be excluded from the Spanish succession, potentially excluding otherwise legitimate male line descendants of Philip V from both thrones. Equally the descendants of a marriage between a French Prince and a Spanish Infanta would also seem to be included in the embrace of the three renunciations. If these renunciations do indeed include any of the descendants of these princes, then they must include all of them; if they do not include all of them then they surely include none.

The realities and expectations of Europe in 1713, however, were inevitably transformed by unexpected and unanticipated events that rendered most of these arrangements irrelevant. Indeed, the only constant is the continuing desire on the part of the French and Spanish peoples to remain independent and self-governing (within the limits of the European Union). An understanding that neither people would have ever tolerated union under one Crown, and an agreement limited expressly to that end, might have resulted in a more satisfactory and permanent basis for a settlement. This was the central and underlying aim of all the treaties governing relations between these states in the first thirty years of the century.

In considering the texts of these renunciations it should be noted that contemporary commentators considered that a renunciation of future rights to the throne could not be legally effective, since the succession was governed by fundamental laws, well-understood and unalterable. These fundamental laws dictated that the succession to the French Crown must pass by legitimate male primogeniture descent; the successor to the Crown must be both Catholic and French, although these last conditions could be surmounted by conversion or nationalisation (as was demonstrated in 1589/94 with the succession of Henri IV). Hence Torcy had written (see above) that even if the Spanish King made such a renunciation, such an act would not of itself accomplish the desired purpose as it could not bind his heirs.

Louis XIV had never considered himself bound by the renunciations of either his wife or mother, and Charles II, last Habsburg King of Spain, had concurred with the limited view of the renunciations as mere guarantees of the separation of the Crowns. Each of the earlier renunciations had been registered in the Spanish Cortes, and by the Parlement of Paris, an essential provision to render a royal act legal in France. In 1712, when asked by his fellow peers to present an advice to the Crown on the form of the renunciations to be made by Philip V, and the Dukes of Berry and Orléans, the Duke of Saint-Simon wrote that such a means was evidently inadequate to legalise a dynastic renunciation since these two prior renunciations had both been considered void, although duly registered in Parlement and Cortes. His own complex proposals to validate the later renunciations were ignored, leaving open the question why acts considered null and void in registering the Spanish renunciations of 1612/19 and 1659/60, should be considered binding when enacted in similar form in 1713. Indeed, Philip V’s own claim to the throne had been acquired despite the solemn renunciations of that inheritance made by his grandmother and great-grandmother under whose terms his succession was prohibited. Describing what followed, Saint-Simon wrote: "I have already said all that is needful on this matter, and the subject is dealt with fully in the documents. It would therefore be redundant to explain at length the uselessness of a French prince of an elder line renouncing his rightful claim to a succession, unless France also consented by a new law, laid down with all the formalities required to give it permanence. Also needed was the renunciation by France of the claim of her own two royal princes and their descendants, and of the two princes of the blood next in line, in order of seniority. These royal princes, subjects of the most autocratic and jealous monarch that ever reigned (the grandfather of one, uncle and father-in-law of the other, and grandfather after a certain fashion of the two princes of the blood), were forced, together with the peers of France, to witness the registration of this act by the Parlement, without publication of its contents, without previous debate, and without their opinions being asked - not that any of them would have dared to speak, except in approval. Thus was executed the ratification of that solemn act of the Parlement, designed to establish a new order of succession against all precedent in France." [Doc 16. Saint-Simon's comments]. Premier Président de Mesmes of the Parlement of Paris made a representation to the King against the registration of the Renunciations, stating that this act "was opposed to the fundamental laws of the State which for centuries had ruled so well the succession to the Crown." [Raoul de Warren, Aymon de Lestrange, Les prétendants au trône de France, Paris 1990, p. 44.].

At the time they were made, the Spanish succession was still governed by the system of mixed male and female succession that had been definitively established at the end of the thirteenth century. Philip decided to limit the succession to the Spanish crown to his entire male line before it could pass to any female, to guarantee it to his descendants, a condition of his renunciation made clear to the allies during the preliminaries of the Treaties of Utrecht. Indeed, it was not until this was successfully accomplished that Spain and Great Britain made their own peace terms at the second Treaty of Utrecht (annexing the new law to the Treaty). Without having insisted on this he would have perhaps risked in just one or two generations leaving his male line potentially excluded from the French succession, while losing the very rights to the crown of Spain for which they had forsworn their rights to that of France. Philip, therefore, introduced a new system of succession in Spain on 10 May 1713; the semi-Salic system, which gave priority to all his male descendants with the provision that in the event of their extinction, the throne would pass to the nearest female dynast. The Cortes refused to register this decree at first, since it so blatantly conflicted with the principle that had governed the Spanish succession for centuries. The King therefore represented his act to the Council of Castille, which likewise rejected it. Eventually he was only able to enforce its registration by asking members of the Cortes to give it their approval, leading to its successful enactment by the whole Cortes. It was by no mean clear, however, that this constitutional change fulfilled the necessary requirements of Spanish law to make such a fundamental alteration to the succession. [see Doc 11. Revised Law of Succession in Spain 1713, French translation]. Nonetheless, the new was included in all the subsequent compilations of Spanish laws, ratified by the Crown and Cortes, including the novísima recopilación of 1803 published subsequently to the Decree of Charles IV of 1789 (see below).

The new system of semi-Salic succession meant that only if the male line of Philip V became extinct would there be any actual possibility of the two thrones being combined through an inter-branch marriage. This law was repealed in 1830/33, by validating a Pragmatic Decree of Charles IV of 1789 that had received the unanimous assent of the Cortes meeting in secret session. This law had never been implemented because the Queen had given birth to several more sons and the law was not included in subsequent compilations of Spanish law. The reintroduction of the earlier system was certainly in accord with Spain’s historic succession law, even though it conflicted with the system in France and the semi-Salic system introduced in the Two Sicilies, and removed the guarantee of the Spanish succession to the House of Bourbon which had been a central element of the Treaty arrangements of 1713-25.

Since, as French constitutional scholars are agreed, the fundamental laws of succession dictated passage of the Crown to the male primogeniture heir, there had to have been an enforceable legal process to change the succession to exclude the Spanish line permanently. Those who argue that the renunciations and treaties of Utrecht accomplished this aim, ignore the fact that similar renunciations made in 1612/19 and 1659/60, and also enforced by Treaty, were supposed to have prevented the two Infantas from transmitting their Spanish rights to their descendants. Yet the method used to enforce the 17th century renunciations were apparently insufficient to change any fundamental laws; why would a similar method have been effective just half a century later? Both these renunciations, and their enforcement in a Decree of Philip III, the Treaty of the Pyrenees and the Will of Philip IV, were found to be void and ineffective in 1700. The renunciations made by the Dukes of Berry and Orléans were likewise renunciations of Spanish succession rights, made with comparable solemnity and legal force, and represented reciprocal acts to the renunciation made by Philip V. If the former were invalid, why should the latter, defined as reciprocal to each other, have been enforceable? If they were themselves void, then what was the effect on the reciprocal renunciation of Philip V? The renunciation of 1659/60 was enforced in a Treaty between the two states directly affected; there was no treaty between France and Spain, however to enforce the renunciations of 1712 - the Utrecht treaties were agreed with Great Britain and the Netherlands neither of which had a direct legitimate interest in either successions.

A distinguished modern French Constitutional scholar has written: "The first fundamental law is the Salic law, 'engraved in the hearts of the French' confirmed in the Lemaistre judgement, handed out by the Parlement of Paris the 28 Jun 1593… This law is imposed upon the King. It does not depend on his will. Furthermore, the royal right and the royal power depend from the authority of the law of the kingdom … It is a constitutional law, anterior to ordinary laws, imposing itself on the respect of the legislative power, which cannot be abrogated or modified… In the treaty of Utrecht of 1713, the English forced the former Duke of Anjou, Philip V King of Spain, to renounce the Crown of France. But this renunciation was null, because no eventual heir can renounce his rights because they are fixed by the custom of the Kingdom. Philip V and his descendants conserve all their rights to the Crown of France." [Roland Mousnier, Les institutions de la France sous la monarchie absolue, Paris 1974, vol I, pp 502-504, quoted in État Présent de la Maison de Bourbon, IV edition, Paris, 1991, pp. 69-70]. Writing more recently, this same scholar stated: "In fact, the renunciation of the Duke of Anjou, son of the Grand Dauphin, who became King of Spain, to the throne of France, is null in plain law: by virtue of the Custom of France, a son of France cannot renounce his rights to the Crown". [Roland Mousnier, Monarchies et royautés, de la préhistoire à nos jours, Paris 1989, p. 259, quoted in État Présent de la Maison de Bourbon, IV edition, Paris, 1991, pp. 73].

The renunciations also brought in the issue of the Austrian claim. The presumption of the renunciations and treaties was that in renouncing, or purporting to renounce, his French rights, Philip V acquired guaranteed rights to the Spanish Throne for himself and his descendants as compensation. As long as Austria maintained a claim to Spain, however, this renunciation was (in the words of the French official of the Ministry of Foreign Affairs, Ledran, see later) provisional and doubtful. By the time the  Emperor eventually gave up his rights (although still using certain  Spanish symbols and continuing to assert his claim to the Burgundian inheritance of the Golden Fleece), the two parties whose renunciations had been contingent on him abandoning his claim were dead. it is a long-established principle in French law that the death of a contractor before the completion of the contract renders the contract void. In this case the conditional nature of the renunciation of Philip V, dependent as it was on the validity of the reciprocal renunciations of his cousins, meant that if the latter were rendered void an essential element of his own renunciation was likewise voided. Furthermore, if that guarantee of male succession was removed, as it was by unilateral act of the Spanish Cortes in 1811/12, and the Pragmatic Sanction of 1832/33 (see later), a crucial element of the foundations upon which the purported alteration to the fundamental laws had been made was undermined.

Part Three: Aftermath of the Treaties and their consequences on relations
between the Powers in the 18th century