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

When Louis XIV died the only person between Philip and the Crown of France was the five year old Louis XV, the late King’s great-grandson who had been orphaned at the age of two years. It was considered of prime importance to find a suitable wife for the King, and when Louis XV fell gravely ill in 1723 concerns escalated. If the King had died, the issue of the validity of the renunciations would have been immediately tested and there exists in the French national archives [Archives Nationales, K 139 b – 140] a collection of commentaries and letters on the consequences should he have died without male issue. The Marshal Duke of Villars advised that the renunciations had violated the law of the Kingdom that established the succession permanently in the person of the eldest male line of the House of France. The Regent, the Duke of Bourbon, believed there to be a real fear of civil war because of the incontestable rights of King Philip. An anonymous mémoire suggested that the Duke of Bourbon was anxious to get the King married so the Queen could declare herself pregnant should he die, giving Philip time to return to France and consolidate his position before the Duke of Orléans proclaimed himself in his place [Hervé Pinoteau, "Le Louis XV de Paul de Perugia", Itineraires, Paris no, 222, Apr 1978, pp. 210-231, note (2)]

It is worth speculating what might have happened if Louis XV had died in 1723. The Testament of Charles II had required in 1700 that if the Duke of Anjou died, or succeeded to France, he would be followed by the Duke of Berry, the Archduke Charles and then the Duke of Savoy. The new law of succession introduced in 1713, and approved in the Treaty of Utrecht (but not by the Emperor until he did so reluctantly in 1718/20) excluded the Duke of Berry and the Archduke Charles, dictating that the Crown should pass to the Duke of Savoy. The Duke of Berry had meanwhile died without issue and the Archduke had succeeded as Emperor. Philip now had several sons and it seems more likely that the Spanish throne would simply have been delegated to a younger son, as had happened when the Dauphin and Duke of Burgundy (Philip’s elder brother) had been bi-passed in favour of Philip in 1700. Hence Philip might have returned to France with his elder son, Luis, and the second son, Ferdinand, would then have become King of Spain. But Luis died a year later in 1724 and that would again have required a new adjustment with Ferdinand becoming Dauphin, and the eldest son of Philip’s second marriage, the Infant don Carlos, succeeding as King of Spain. Ferdinand died childless in 1759 and at that point we may have expected Charles to have become King of France, his eldest son (who was mentally retarded and predeceased him) and second son the future Charles IV, accompanying him back to France, while the Infant don Ferdinand (who actually became King of the Two Sicilies in 1759 by his father’s cession) would have become King of Spain. It is useless to speculate thereafter, since it is unlikely that the same pattern of marriages and alliances would have followed, but perhaps the rule of the highly intelligent and capable Charles (III of Spain, X of France had he succeeded) who died in 1788, might have averted the revolution.

We may gauge the attitude of Louis XIV’s successor to his great-grandfather’s breach of the fundamental laws by reference to the Edict of 1717 on the rights and titles of the legitimated bastards. A royal edict of July 1714 (registered by lit de justice 2 Aug 1714) and a declaration of 23 May 1715 had given Louis XIV's bastards the rights, titles and privileges of Princes of the Blood with the right of succession after the extinction of the descendants of the other Princes of the Blood. This blatant breach of the fundamental laws had excited tremendous opposition, although no one had been able to articulate this effectively against the absolute power wielded by Louis XIV. Following his death in 1715 the abolition of these provisions became a priority for the Princes of the Blood – not because there was any immediate danger of the bastards actually succeeding, but because of the immediate privileges they acquired thereby, which had hitherto been limited to those born Princes of the Blood. The precedent that was set was extremely dangerous. In direct conflict with the fundamental laws, for which Louis XIV's lack of respect had been obvious to all since he had forced through the renunciations of 1712, it allowed the King to change the succession laws at will. There was no occasion, and no advantage to be gained, however, in attempting to cancel the renunciations; any more than there was any need to revoke the formal renunciations made in 1612/19 and 1659/60 until the circumstances actually arose when their requirements came into effect (i.e. 1700). Indeed the threat to international peace by such an overt act would have been considerable.

The solution was for the new King (in an edict dated July 1717, registered 8 July 1717), acting as a minor on the advice of the Regent Orléans, to accord the bastards precedence at court after the legitimate princes, but not as Princes of the Blood "since they could not be said and qualified as princes of our blood, nor could the said quality be granted to them." In revoking his predecessor’s edict and declaration, Louis XV’s edict stated that the fundamental laws of the Kingdom prevented the late King from doing this legally, just as they prevented him from disposing of the crown itself. Louis XV emphasised his desire to preserve "the order of succession always preferring the senior line to the junior," which meant that the Spanish line must come next after the King himself. [Doc 17. Edict of Louis XV of 1717]. The principle that a Prince of the Blood could only be made with the wife of the King or other Princes of the Blood (enunciated by the Chancellor following the Treaty of Montmartre of 6 Feb 1662 when Louis XIV attempted to confer this rank on the Princes of Lorraine), was confirmed by this decree; by the same token the principle that that rank could not be withdrawn was upheld with equal strength. [see Roland Mousnier, Les Institutions de la France sous la monarchie absolue, vol II, Paris, 1980, pp. 96-98].

In none of the surviving contemporary texts discussing the effects of the renunciations of 1712 is there evidence that the issue of the inter-marriages of descendants of either Philip V with those of the French Princes arose specifically. In this respect the discussions had contrasted directly with the preliminaries of The Hague of 1709, in which even marriages between French and Spanish dynasts were prohibited. The principle issue to be settled at Utrecht had been the balance of power, the permanent separation of the two Crowns and Sovereignties, and the apportionment of territories. The Spanish King had made his renunciation of his French rights on the basis that his rights to Spain would be guaranteed, but without the Emperor’s participation, and renunciation of Spain, he was guaranteed nothing. The Emperor not only refused to renounce, but in his Pragmatic Decree of 19 Aug 1713, published in 1719 in order to establish the right of succession of his daughter Archduchess Maria Teresa, he affirmed his territorial claims on Spain. When negotiations recommenced between France and the Empire, Louis XIV in his instructions to his plenipotentiaries had required that they discuss with the Imperial Ministers the terms for a settlement with Spain. The Imperial Ministers, however, refused to even discuss renouncing their master's claim to the Spanish throne and the peace treaty signed on 6 Mar 1714 with France at Baden (Rastadt), allowed the Empire free possession of the Netherlands, without the participation or consent of Spain. Philip V therefore refused to return the properties confiscated from the adherents of the Emperor as long as the Emperor refused to give up his claims. At the same time several Italian princes who for long had been closely connected to Spain, publicly asserted their objections to being forced to accept the Emperor as their overlord.

An important mémoire is preserved in the Archives of the Ministry of Foreign Affairs in Paris, titled: "History of the Union or Family Pact between the Crowns of France and Spain since the beginning of the 18th century until the Family Pact concluded in November 1733 between the King of France Louis XV and the King of Spain Philip V, as heads of the two royal branches of the House of Bourbon / union between France and Spain of 1700- 1733", written by M. Ledran of the Ministry of Foreign Affairs as advice to his Minister for the negotiations of the first Family Pact of 1733. [Ledran, Mémoire, Doc 18].

When recounting the registration of the Letters Patent registering Philip V’s renunciation, Ledran wrote (p. 29) that Philip V had "counted that all the Kingdoms and States of the Spanish Monarchy would be assured to him without any dismemberment" but that he was forced to accept the loss of the Italian states in order to be recognised as King of the remaining Spanish states. Ledran then continued (p. 31): "French politicians and others doubted that the possession of Spain and the Indies by King Philip V could be regarded as solidly assured since the Emperor Charles VI wished to conserve the rights that he had asserted by armed force on the Crown of Spain and that he had refused to formally renounce; in effect, with this uncertainty, the renunciations of His Catholic Majesty for himself and his descendants to his rights to the succession to the Crown of France can be regarded only as provisional and consequently doubtful, because it could happen that this Emperor or his heirs and successors could renew the war, completing the conquest of Spain. In such a case the Catholic King Philip V or his heirs and successors could aspire to retake their rights to the Crown of France, indefeasible rights according to the fundamental laws of the Kingdom; in case that this should happen, the Duke of Orléans Regent judged that he must reform the alliance of the two Powers, who had contributed the most during the Utrecht congress, to establish the peace of Europe on the foundations of the reciprocal renunciations between the two branches of the House of Bourbon established in France and Spain."

The consequent breach between France and Spain led to the Triple Alliance of 4 Jan 1717, between France, Great Britain and the Netherlands. Soon afterwards Spain invaded Sardinia (which had been ceded to the Emperor) and Sicily (which had been given to the Duke of Savoy), violating the terms of the earlier Treaties of Utrecht. France was forced to invade Spain under the terms of the Triple Alliance, to bring her erstwhile ally to the negotiating table, and French troops under the command of the Duke of Berwick, Marshal of France and former commander-in-chief of the very armies that had insured Philip possession of Spain, quickly defeated him. France and Great Britain were now forced together again, to bring peace between Spain and the Emperor, which they recognised as the principal source of continuing international conflict. In the Quadruple Alliance (the Treaty of London) of 2 Aug 1718 the three powers of the earlier Triple Alliance (the Netherlands withdrew at the last minute and Savoy acceded), along with the Emperor, reached a new settlement, but without consulting Spain, which refused to participate. This read, in Article I, "as this has been the only means that one could find to establish a durable balance of power in Europe, it has appeared that a rule has been established that the Kingdoms of Spain and of France can never be united together on the head of one and the same person, nor remain in one person alone or and the same reigning line, and that these two monarchies must be perpetually separated; to confirm this rule so necessary for public tranquillity, those princes to whom the prerogative of their birth could be given the right to succeed to one or other Kingdom have renounced one of the two orders of succession for themselves and their posterity, so that the separation of the two monarchies has passed into the fundamental laws of these two states." The Duke of Orléans, who if the renunciation of Philip V was effective, would have been the seven year old King's immediate heir, as well as the allied powers familiar with the original French objections that the renunciations were in breach of the fundamental laws, were anxious to affirm that a new fundamental law had been established. A careful reading of this text indicates, however, that it was the separation of the crown that had entered the fundamental laws, rather than the exclusion of the respective lines.

The Treaty continues (in the same article) "His Imperial Majesty wishing to give the final complement to such a salutary and necessary law, and to relieve any impression of insincerity on his part, declares that he accepts the articles regulated and drawn up at Utrecht touching the order of succession to the thrones of Spain and France and renounces for himself and for his descendants and successors of both sexes to every right and pretension universally which he could have on the provinces of the Spanish domination, of which the Treaty of Utrecht has recognised the Catholic King as legitimate sovereign and possessor; His Imperial Majesty promises in consequence to draw up a solemn renunciation and deliver it in the form of an instrument to His Catholic Majesty and to the contracting parties." Article 2. "In execution of the said renunciation that His Imperial Majesty has made by attachment for the general security of Europe, and in also in consideration of that which the Duke of Orléans had renounced, for himself and his descendants, to his rights and claims on the Kingdom of Spain, on the condition that neither the Emperor nor any of his descendants can ever succeed to Spain; His Imperial Majesty recognises as legitimate King of Spain Philip V, and promises to him and to his male and female descendants the peaceful possession of the Spanish Monarchy." [Doc 19. Quadruple Alliance]

The King of Spain, however, since he was not a party to the Treaty did not accede to its terms even though the Duke of Orléans had told him that the British had promised they would withdraw from Gibraltar if he did so. The British refused to allow this term to be stated in the treaty and Philip was rightfully distrustful of their true intentions. The Emperor drew up but did not deliver the promised renunciation, which the Duke of Orléans had told him that he had persuaded Philip to accept. Furthermore, Orléans had allowed the Emperor to omit the word "perpetual" from the renunciation portion thereby providing an added excuse to ignore its terms should circumstances change. [Doc 20. Imperial renunciation]. The Emperor stated that he would never relinquish the titles of King of Spain and the Indies, but that in his view this should not prevent a final peace, then promptly reasserting his claims to Spain in republishing the Pragmatic Decree of 1713.

Philip was driven from both Sicily and Sardinia soon afterwards, so by the Treaty of The Hague of 16/17 January 1720 ratifying the earlier Treaty of London he agreed to return Sicily to the Emperor. [Doc 21. Treaty ratification]. The two sovereigns then exchanged the renunciations they had each undertaken to make, the Emperor in 1718 and Philip V at The Hague. Like the Emperor, Philip prevaricated, and in his renunciation of 22 Jun 1720 omitted the word "perpetual" from the renunciation portion and, one must assume, somewhat cynically promised to recognise the Emperor in possession of Sicily, despite having made a similar promise earlier which he had broken within half-a-dozen years. In reserving all his rights for discussion at a Congress to be mediated by France and Great Britain, he further made it clear that he did not regard any of these issues as settled permanently. [Doc 22. Philip V's second renunciation].

The unsatisfactory and ultimately uncertain settlement between Spain and the Emperor proved only temporary, the decision to place the points at issue before a Congress insuring that it was not regarded as permanent. The reconciliation between France and Spain which followed led to a mutual protection pact jointly with Britain, which still refused to cede Gibraltar, directed against the Emperor and guaranteeing the succession of the Spanish Queen's descendants to her ancestral duchies of Parma and Piacenza. [Doc 23. Treaty of 1721]. The Farnese Duchies had been granted originally by the Pope and confirmed by the Emperor, but there was a question as to whether they were limited to the male heirs of the Farnese, in which case they would return to the Emperor (or Pope) on the death of the Queen’s uncle, Antonio, Duke of Parma. If they were not so limited, as the Spanish and their new allies France and Great Britain contended, then the Queen of Spain Isabel Farnese was indeed their eventual heiress and she could demand investiture. Queen Isabel was also heiress to the Medici Grand Duchy of Tuscany, but again the same issue arose as to whether the original investiture by the Emperor had limited the succession to the male heirs, or whether the Grand Duchy could pass by the semi-Salic system which would have given representation to a female on the extinction of the male line. Hence Imperial agreement not to stand in the way of the investiture of these two wealthy Italian states on the Queen of Spain and her heirs was an important bargaining chip that the Emperor retained, and to which he repeatedly delayed committing himself.

This in turn led to an agreement to exchange brides in a double marriage: the Prince of the Asturias would marry Mlle de Montpensier (daughter of the Regent), and the Infanta Maria would marry Louis XV (this proposal already setting up a potential breach of the terms of the 1713 renunciations). It was further proposed that the Infant Carlos would marry Mlle de Beaujolais, another daughter of the Regent. The proposed Congress of Cambraï, which was to finally settle relations between the Emperor and Spain, was delayed again by the death of the Regent Orléans and the succession to the Regency by the Duke of Bourbon, finally opening on 26 Jan 1724. Philip, meanwhile, had abdicated the Spanish Crown and his eldest son now succeeded as Luis I, on 10 Jan 1724. [Doc 24. Abdication of Philip V].

Philip's decision to abdicate was allegedly his desire to give up the stresses of government for a quite retirement, and indeed he had suffered occasional bouts of extreme depression throughout his life which some witnesses found left him unable to communicate coherently. It has been suggested by some scholars that he abdicated to enable himself to take up the French throne should the as yet unmarried Louis XV succumb to any of the many ailments that made life so uncertain in the early 18th century. The sudden and unexpected death of the young Luis I on 31 Aug 1724, in any case, persuaded Philip that he should reassume his powers as King of Spain. Philip's abdication had been final and not conditional, but nonetheless the subsequent investigation found that he could legitimately take up the Crown once again. [Doc 25. Advice on the Succession]. The Congress of Cambraï which then came to a complete halt over Louis XV's marriage crisis, the delegates postponing their discussions sine die..

The Duke of Bourbon, now Prime Minister, had become concerned that the young Louis XV "found himself at the age of 15 years with a vigorous temperament" (Ledran, op. cit.), a euphemism for sexually precocious, and decided he had to find a nubile wife for the young King, instead of his intended bride, the Infanta, who was only seven years old. This provoked a storm of protest at the blatant insult to Spain, and there was a humiliating exchange at the border with the young widowed Queen of Spain and Mlle de Beaujolais being sent back to France, and the Infanta Maria returned to Madrid. This new breach with France led to a recall of Ambassadors and a rapprochement between Spain and the Emperor. In the Treaty of Vienna of 30 April 1725 which followed, the provisions of the treaties of Utrecht and Baden regarding the Netherlands and Italy were confirmed and ratified by Philip while the Emperor, in his ratification of 26 Jan 1726 confirmed his recognition of Philip as King of Spain. Nonetheless, the Emperor continued to use the Spanish titles, ignoring the protests of his new-found ally, Philip V. As a sign of his desire for rapprochement with Spain, the Emperor proposed a marital alliance between his eight year old daughter the Archduchess Maria Theresa and the Infant Carlos, thereby risking the union between Spain and the Austrian hereditary states which had been of such concern to France just thirteen years earlier. Charles was second in line to the Spanish Crown after his childless older brother Ferdinand, and such a union would have undermined one of the main tenets of the renunciations of 1712 and the Treaties which followed.

France, angered at this new alliance (which in spirit breached various terms of the earlier Treaties), requested financial reparations for the expenses of the war of succession, while Spain, in bellicose mood, demanded once again British withdrawal from Gibraltar and embarked upon an attempted invasion of the Rock. Spain also undertook to try and restore the Stuart claimant (titular King James III) to the British Throne, in breach of her promise in the Anglo-Spanish Treaty of Utrecht to recognize the rights of Queen Anne and her successors.

Relations between France and Spain were repaired by the Treaty of Pau of 31 May 1727, but Spain again took unilateral action in breach of the earlier Treaties by sending troops to Italy to assure the eventual succession of the Infant Carlos to Tuscany and Parma, without obtaining the consent of the Emperor. Spain was now evidently detached from the Imperial camp and obtained the support of Britain and France at the Treaty of Seville of 9 Nov 1729 for her claims in Italy. The Emperor, in breach of his earlier undertakings, reaffirmed the Pragmatic Decree of 1713, which had maintained the Habsburg claim to all the former hereditary states, including Spain. The future inheritance of Bohemia and the German, Austrian, Silesian and Hungarian hereditary states by his heiress was consented to by France, Spain and Great Britain, in return for his promise to invest the Infant Carlos and abandon his continued claims to the Spanish throne. The promulgation before the Imperial Diet of the Pragmatic Sanction, which confirmed his Decree of 1713 and enacted the future passage of the hereditary states to the Archduchess, was only made under strong protest by the Elector Palatine and the Electors of Bavaria and Saxony. These three Princes refused to accept the succession of the Emperor’s daughter without their consent, making numerous demands to which the Emperor was reluctantly forced to concede. In a further complication, as the Emperor now felt he needed to find a powerful ally, the proposed marriage between the Infant Carlos and Maria Theresa was revived, leading to another French protest (delivered by the Garde des Sceaux to the Count of Rottembourg), complaining that the terrible losses endured by France to prevent Spain from being united with Austria would now be wasted.

The consequence of these shifting alliances was an energetic discussion between France and Spain as to the nullity of all the previous treaties, since they had been repeatedly breached and were in so many respects incompatible. The potential unification of Spain with the Habsburg hereditary states by the marriage of the Infant Carlos and Maria Theresa undermined the Treaties of Utrecht, Baden and The Hague, and would have resulted in a dramatic shift in the balance of power. The disputes between France, Spain, Great Britain and the Empire were now aggravated by the Polish succession crisis, and by Russia’s encroachment westwards, which brought the increasingly powerful King of Prussia into the equation. These discussions culminated in the first Bourbon Family Pact, the Treaty of the Escorial of 7 Nov 1733. In this the two Sovereigns, of France and Spain, promised (in article 7) to "act in perfect concert on all their common interests" and, in the next article, continued: "In consequence Their Majesties having recognized that the guarantee of the Austrian Pragmatic Decree, made without their agreement, under which the Emperor and his successors could intervene in opposition to the security of the House of Bourbon, at the same time the near or actual election as King of the Romans of a Duke of Lorraine who will marry the elder of the Archduchesses, daughters of the reigning Emperor, will form an engagement contrary to the security of the House of Bourbon and the peace of Europe, They have judged that it is worthy of their interests and their foresight to act together in any matter which is of interest to them……" [De Clercq, Receuil des traités de la France publié sous les auspices du ministère des affaires étrangères, Paris, 1888, vol 15, suppplement p. 7,9-10, quoted in État Présent de la Maison de Bourbon, IV edition, Paris, 1991, pp. 79-80]

The last Farnese Duke of Parma died on 20 Jan 1731, and by the terms of the Treaty of Vienna of 22 Jul 1731 Infant Charles of Borbón y Farnese was invested as Duke. In December 1731 Charles finally gained possession of Parma and Piacenza, while establishing himself in the Medici capital, Florence, accompanied by Spanish troops, where he was invested as Hereditary Grand Prince on 24 Jun 1732. Spain was also determined to recover Naples and Sicily, despite undertaking to renounce both Kingdoms in the treaties of Utrecht of 1713, The Hague of 1720, and Vienna of 1725. She now invaded Italy with a substantial army, under the nominal command of the young Duke of Parma, which speedily defeated the Imperial army at the Battle of Bitonto in 1734. Infant Charles was proclaimed King of Naples and Sicily on 15 Mar 1734, but with the Infant now distant from Florence and Parma, the small Spanish garrisons were quickly ejected. The Emperor was forced to acknowledge the Infant Charles as King, however, by article 2 of the preliminaries of the Treaty of Vienna between Spain and the Emperor of 3 Oct 1735. This was followed by an Imperial act of cession and resignation dated 11 Nov 1736, reciprocated by the Infant Charles’s renunciation of Parma and Piacenza and of his rights to Tuscany (while retaining the titles). The Treaty of Vienna of 18 Nov 1738 confirmed that Tuscany would be given to Francis Duke of Lorraine, who was betrothed to the Archduchess Maria Theresa, while Lorraine and Bar would be given to the former King of Poland Stanislas Lecszynski (whose daughter was married to Louis XV) with reversion to France. These transfers and exchanges were effected in the accession signed by Spain at Versailles 21 Apr 1739, which invalidated the renunciations of the Italian territories made in the Treaties of Utrecht and in the Treaty of Vienna of 1725, as well as in the personal renunciation made by Philip V in 1720.

The new European structure, which had been so transformed since 1713 with an Imperial Elector on the throne of Great Britain, Spain’s power enormously enlarged, and the Habsburg Empire in retreat, now led the French to consider again the status of the renunciations of 1713. An unsigned mémoire located in the Archives of the Ministry of Foreign Affairs, dated 1741 and titled: "On the French Renunciations to the Succession; mémoire on the effect that the breach of the Treaty of Utrecht produces in relation to the renunciations by the French princes to the Crown of Spain and of Philip V to the Crown of France". This mémoire stated: "The circumstances in Europe today and the unsettled agitation since the death of the Emperor Charles VI lead to the presumption that the Treaty of Utrecht has not survived for a long time…. given that it conflicted with the fundamental laws of the two Kingdoms and above all Salic law". [Paris, Ministry of Foreign Affairs, Mémoires et Documents, Espagne, vol 182]. "This mémoire continued: French princes cannot contract the ‘vice of pérégriniste’, in other words, they cannot lose their eventual rights to the throne by virtue of their foreign nationality." [Paris, Ministry of Foreign Affairs, Mémoires et Documents, Espagne, vol 182.] This reflects the view of Saint-Simon, who wrote that the King is French "from the instant he becomes recognized and legitimate King of France". [Duke of Saint Simon, Papiers en marge des mémoires, Club français du livre, 1954, p. 250.]

As it was by now unlikely that the Prince of the Asturias, future Ferdinand VI, would leave issue, it was agreed that should the new King of the Two Sicilies succeed to Spain, his kingdoms would be ceded to a younger son. The death of the Emperor, however, on 20 Oct 1740 proved an opportunity for Spain to reject the renunciation of the Farnese Duchies, and by the Family Pact between France and Spain of 25 Oct 1743 it was agreed that Spain would recover these to hold in full sovereignty and eventually pass them to the Infant Philip. Spanish troops invaded Piacenza on 5 Sep 1745 and Parma on 16 Sep following, in the name of the Queen, as Duchess, but were soon ejected by Austrian troops. The final settlement at Aix-la-Chapelle (Aquisgran) of 18 Oct 1748 bestowed these two duchies on the Infant Philip, along with the former Gonzaga duchy of Guastalla, in full sovereignty (this settlement ratified at Nice 4 Dec 1748).

The second Family Pact, the Treaty of Fontainebleau of 25 Oct 1743, for which the 1741 memorandum had been drawn up as an advice to the Minister, required in article 14 that the King of France would be obliged, acting in the "common interests of the House of Bourbon" to guarantee the Kingdoms of Naples and Sicily to the Infant Charles, and likewise (article 6) the Duchies of Parma and Guastalla and the annexed States to the Infant Philip. Article 16 then stated that the two Kings regarded this treaty as of common advantage to both Crowns, and even more so to the House of Bourbon. Hence they recognised that while the two Crowns were separate, each with their own responsibilities, privileges and interests, there was a common House, whose interests superseded those of each individual line. [De Flassans, Histoire générale et raisonné de la diplomatie française…., Paris, 2nd edition, 1811, vol 5, pp.172-182, quoted in État Présent de la Maison de Bourbon, IV edition, Paris, 1991, p. 80]. The third Family Pact, dated 15 Aug (Saint Louis's day) 1761, committed Spain to coming in on France's side in the Seven Years War, and led to a humiliating defeat, with Britain capturing Havana for which she had to exchange Florida (although France conceded Louisiana to Spain). The King of Spain, Charles III (that same Infant Charles who had been confirmed as Duke of Parma and then King of the Two Sicilies), made the same undertakings on behalf of his second son, Ferdinand IV and III of Naples and Sicily, who was thereby subject to the same mutual obligations and protection, and his brother, Philip, Duke of Parma.

The Third pact began by recognising the "blood ties which united the two monarchs who reign in France and Spain" which led them to "conclude between them a Treaty of friendship and union, under the denomination of Family Pact, and of which the principal purpose is to make permanent and indissoluble, both for Their Majesties and for their descendants and successors, the duties that follow naturally from the relationship and friendship. The intention of His Very Christian Majesty and His Catholic Majesty in contracting the engagements that They take in this Treaty, is to perpetuate in the posterity the sentiments of Louis XIV, of glorious memory, their common and august great-grandfather, and to maintain for always a solemn monument of the reciprocal interest which shall be the basis of their heartfelt desire for the prosperity of their royal families." Article 20 continued this theme, stating that the two Kings would sustain on every subject, the "dignity and the rights of their House, of which every Prince who has the honour to issue from the same blood, can be assured on every occasion the protection and the assistance of the three Crowns." Article 21: "The present Treaty must be regarded, also as has been announced in the preamble, as a Family Pact between all the branches of the August House of Bourbon, to which no other Power which is not of this House can be invited nor admitted to accede". The draft version of the Treaty, also recited in the political memoirs of the Duke of Choiseul, France's first minister who negotiated the pact, uses the words "House of France" in preference to House of Bourbon, which was the term used in the version ratified in Spain (the French ratification disappeared in the revolution). [De Clercq, Receuil des traités de la France publié sous les auspices du ministère des affaires étrangères, Paris, 1864, vol 1, pp. 81-86, quoted in État Présent de la Maison de Bourbon, IV edition, Paris, 1991, pp. 81-82]

There were also agreements on relations between the Houses, of which the most significant is the Convention of Aranjuez of 15 July 1760, concerning the admission of French Princes of the Blood to the Order of the Golden Fleece, and Spanish Infants to the Orders of the King (the Saint Esprit and Saint Michel). This act describes the French dynasts as "Princes du Sang de France" and the Spanish Infants as "Prince du Sang d’Espagne" (a term used for French dynasts and unknown in Spain), duplicating these phrases in the Spanish text. The equivalence accorded to the dynasts of both branches (and the cadet lines of the Two Sicilies and Parma), never granted to the representatives of any foreign dynasty, and the frequent references to each line being branches of the same House, are also of considerable significance. While of themselves they are not evidence of any continued right to the French throne by the Spanish line, the accord of such unique privileges to what would otherwise be a separate, foreign House was exceptional.

The validity of the renunciations were not debated in public until the French revolution, when the National Assembly first addressed this issue in a three day session beginning on 15 Sep 1789. After many debates, the Assembly voted on a final text of a statement defining the succession to the Crown. This read: "The crown is hereditary from male to male, by order of primogeniture, with the absolute exclusion of women and their descendants, without any prejudicing the effect of renunciations". [Moniteur Universel, 18 Sep 1789, 1847 edition p. 485-486]. The Spanish Ambassador, the Count of Fernan Nuñez wrote to the Spanish Prime Minister, the Count of Floridablanca, that same date: "All the clergy and the major part of the nobility also of the Third Estate has pronounced for the resolution favourable to the House of Spain… by 698 votes to 265 the majority had concluded the question in a sense again most advantageous for us which was not the situation before, because this vote shows the whole country as doubtful and subject to revision a renunciation which had been regarded as complete and irrevocable (sic)." [Albert Mousset, Un temoin ignoré de la Révolution. Le Comte de Fernan Nuñez, ambassadeur d'Espagne (1787-1791), Paris, 1924, pp. 34-35, quoted in État Présent op. cit., pp. 84-85]

Two years later the National Assembly drew up a new, written Constitution that was assented to by the King, and which governed France for the last year of the 18th century monarchy. For the first time it was necessary to define formally, as a matter of statutory constitutional law, the system of succession, and the titles, privileges and prerogatives of the Crown. The Moniteur Universel recorded the debates on the succession clause of the Constitution, the complete texts of the Moniteur were reprinted in 1847. In debating the succession to the Crown the contemporary understanding of the law of succession was publicly clarified. It certainly substantially rebuts the assertion by various Orléanists that the claim by the Spanish line is a late construct, made to satisfy the ambitions of princes deprived of other claims. Indeed, it is evident that the issue of the rights of the Spanish line to the French crown remained an important constitutional issue.

When the issue of the rights of the Spanish line arose, the Assembly voted to include a phrase in the article on the succession that implicitly protected their rights. That this was the purpose of the clause seems certain: hence the phrase in Title III, Chapter II, article I: "La Royauté est indivisible, et déleguée héréditairement à la race régnante de mâle en mâle, par ordre de primogeniture, à l’exclusion perpétuelle des femmes et de leurs descendance. (Rien d’est préjugé sur l’effet des renonciations dans la race actuellement régnante)" [The Kingship is indivisible, and delegated hereditarily to the reigning dynasty from male to male, by order of primogeniture, with the permanent exclusion of women and their descendants. (Nothing is prejudiced by the effect of renunciations in the dynasty actually reigning)]. [État Présent op. cit., p. 84].

Mme Elizabeth (the King’s sister) in a letter to the Marquise de Bombelles, 15 Sep 1791, wrote that some deputies in the National Assembly had wanted to exclude the Spanish branch and that the séance was stormy and two days were lost. When Louis-Philippe himself discussed this in his memoirs published in 1803 (when the restoration was still a dozen years away), he wrote: "When it ruled the succession to the crown from male to male by order of primogeniture it added (I can say without any pretext) without intending any prejudice in regard to the renunciations, it was with one end, to return to the branch of Spain to the detriment of ourselves and in contempt of the treaties and the solemnity of the renunciations, a means of reclaiming their right of inheritance to the Crown of France and by that to diminish the importance of my father, in making the introduction of a branch so numerous as that of Spain, between the crown and ourselves." [Doc 26. Louis-Philippe's commentary, French original]. It is worth noting that while for Mme Elizabeth this debate was about a failed attempt at depriving the Spanish branch of their rights, for the Duke of Orléans it was about depriving his own branch of theirs. Either interpretation leaves no doubt that the issue of renunciations, their binding nature and the rights of the Spanish branch were considered with great seriousness.

The National Assembly had been created by transforming the members of the ancient Estates General into a body which had assumed the responsibility of determining the nation's Constitution. It had been elected first of all to deal with much needed fiscal reforms, and many among its members wished to change the structure of France's institutions. There was no unanimity among the deputies, six hundred of whom were drawn from the Tiers, the third estate, and slightly less from the nobility and clergy combined. Hence no unified proposals for reform had been presented before the elections, hundreds of different grievances and suggestions instead being produced in cahiers which may or may not have received any kind of endorsement from the Estates, local communities, or groups of electors. What is certain is that the mandate of the National Assembly certainly did not include revision of the fundamental laws that were beyond its competence. The subsequent reforms were forced upon the King, who had no choice but to capitulate. Those sympathetic to the revolution and its aims dismiss the royal protests, and allow as legitimate the actions of the National Assembly in replacing a Monarchy established over centuries with one that was subservient to the power of the new Assembly. Louis XV himself, in his Edict of 1717, had stated that the destination of the Crown (in the case of the extinction of the Royal House), was in the hands of the people, "Mais si la Nation Françoise éprouvoit jamais ce malheur, ce seroit à la Nation mesme qu'il appartiens droit de le réparer par la sagesse de son choix; & puis que les Loix fondamentales de nostre Royaume Nous mettent dans une heureuse impuissance d'aliéner le Domaine de nostre Couronne." (see Doc 17). In this instance the deputies took it upon themselves to initiate changes without consulting the people, not least because in this novel institution notions of representative democracy were still in the fledgling stage. The model for this new Monarchy had been in some respects that of Great Britain, but British constitutional institutions, rights and privileges had been established over centuries. Hence while the Assembly could legitimately compile and define the fundamental laws, it could not claim any legitimate authority to alter them.


On 12 Oct 1789, Louis XVI had written to King Charles IV, I leave to "I owe it to myself, I owe it to me children, I owe it to my family and to all my house not to leave a power degraded in my hands the royal dignity that has been confirmed in my dynasty over the centuries…. I have chosen Your Majesty as head of the second branch to place in your hands the solemn protest that I have drawn up against all these acts contrary to the royal authority….". [Albert Mousset, op. cit. p. 228, quoted in État Présent op. cit., pp. 85].

The flight and return of the King on 20th June 1791 had led to a debate on the Regency, and the nature of the Monarchy, whose very existence was now endangered.  Nicolas Ruault noted in his diary on 22nd June: "the throne is vacant since yesterday morning. What a great opportunity for the Duke of Orleans, if he was loved and esteemed! One cannot think that he could fill the void left by Louis XVI. He is unworthy. His eldest son would be the one". [Marguerite Castillon de Perron, Louis-Philippe et la Révolution française, Vol I, 1963, p.182]. The Duke of Orléans was anxious not to be seen as overtly ambitious, drawing up a statement that he was ready to serve his country "on land, on sea, in a diplomatic career, in a word in any position that will demonstrate my zeal and limitless devotion for the public good;  but if it is a question of the regency, I renounce in this moment and for always to any right that the constitution gives me… this permits me to leave in the class of simple citizen where I am placed with the firm intention of remaining always", signing this L. P. d’Orléans and dating it 26 Jun 1791 [Moniteur Universel, number 179, of 28 Jun 1791 (p. 764, 1847 edition). Doc 27. 1st Offer of Renunciation of Philippe-Égalité].  According to Castillon, op. cit., this letter was dictated word for word to a "distressed" Orléans by the government. Orléans himself was trying to keep his close connections with the Jacobins, who had never trusted him, while his agents were active in advancing his own interests that ultimately were designed to bring him to power. He recognized by this stage that the Monarchy was doomed and that a flawed Regency was not the way to achieve his ambitions.

In the National Assembly, on 25th August, a debate raged as to whether the King could be forced to step aside and be replaced by a Regent, and whether that Regent should be a member of the royal family. Another aspect of the debate was the titles of members of the royal family; Robespierre and the left resisted the idea of them being described as Prince, one deputy (Lanjuinais) putting the question starkly, stating the "real question is whether to re-establish the nobility or not". Of equal importance was whether the members of the royal family could sit in the legislative bodies, it having been argued (ultimately successfully) that this would offend the principle of the separation of powers, of the executive (of which members of the royal family were presumed to be part), and the legislative assembly. The proposal that membership of the royal family could be renounced was not accepted by some. Deputy Goupil (a moderate right member, formerly of the third estate), opened the second session with a lengthy speech on public responsibilities, and the duties of members of the royal family: "What is the true vocation of members of the royal family? They cannot abandon the cause of power that pertains to them to sit in the legislative body. They are made to be the defenders, the assistants, and the councillors of the executive power.......A profound English writer has said that when an hereditary monarchy has been established by a free nation, the royal family is consecrated only to the freedom of every national family. And one believes that this obligation can be avoided by a declaration, that I cannot qualify as a renunciation! Ah well, that one understands that this renunciation cannot be made, because one cannot, in public law, renounce a right that is not open. Any such renunciation, even if it was not impossible, would be immoral."

The Duke of Orléans (Philippe-Égalité) strongly opposed the first measure defining rights of members of the royal family because he hoped to enjoy high executive office in the new Constitutional state, so offered "to deposit in the office my formal renunciation of rights as a member of the reigning dynasty" if the first clause was not rejected. When another deputy, M. Dupont, pointed out that the new Constitution had questioned the legality of such renunciations, Égalité replied "A personal renunciation is always good", suggesting that he understood that a renunciation for one’s descendants could not be binding. [Doc 28. Debate before the National Assembly]. The debate ended with a vote as to whether members of the royal family were eligible for election to positions or employment at the nomination of the people;  by 267 to 180 it was determined they would not be eligible. [Moniteur Universel, no 239, 26 Aug 1791, 1847 edition, pp. 490-494]. The final version of Section III, article 5 of the new Constitution stated that "The members of the family of the king called to the eventual succession to the throne, enjoy the rights of active citizens, but they are not eligible for any places, employment or functions which are nominated by the people".

Orléans once again stated his desire not to be included among the members of the royal family, on 9 Dec 1792, writing "that in the case where Louis XVI will be no more, I would be placed behind the curtain before putting myself or my son at the head of the government… I declare that I shall deposit in the office my formal renunciation of rights as a member of the reigning dynasty, to hold instead that of French citizen. My children are ready to sign with their blood that they are of the same sentiments as myself. Signed L.P.J.Égalité." By this time the Monarchy had been replaced by a republic and Égalité's statement was motivated more by fear that his royal birth would ultimately condemn him. The statement was published in the Moniteur Universel as a statement by "L-P-J Egalité to his co-citizens" on 11 Dec 1792, [ibid. p. 81]. [Doc 29. 2nd Renunciation of Philippe-Égalité]. To add further insult to the royal family, his mother and his siblings, he had a genealogy drawn up and distributed in the Jacobin clubs and other groups, stating that he was himself the "fils d’un cocher; que par conséquent, on devait le regarder comme une vrai sans culotte".

It would seem that if a Prince could legally renounce his rights of succession to the Crown, these acts of Philippe Égalité could have been effective, if not binding on his descendants who, despite the hyperbolic statement at the end of his second renunciation, did not sign anything with their blood. These acts of Égalité are interesting as examples of his arrant opportunism (and just five weeks after his second renunciation he voted for the execution of the King, his cousin), but do not affect the ultimate rights of the Orléans family, since no renunciations can bind unborn heirs.

The Abolition of Semi-Salic Law in Spain and its Consequences