THE ROYAL HOUSE OF BOURBON

 

 

THE FRENCH LEGITIMIST CASE

© Guy Stair Sainty

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THE FRENCH SUCCESSION: RENUNCIATIONS OF 1712, TREATIES OF UTRECHT AND THEIR AFTERMATH IN INTERNATIONAL AFFAIRS

THE LAST TESTAMENT OF LOUIS XVI

The Crown of France was one of the most ancient in Europe when the ancient Monarchy was finally brought down in the Revolution of 1830, reigning without a break until 1792, and then restored again in 1815. The country continued to be ruled by a Monarch, Louis-Philippe, for seventeen and a half years following the 1830 revolution, but this last King was head of a junior branch of the House and could not claim to be the legitimate successor of the deposed Monarch, Charles X. The senior line became extinct with the death of Henri, Count of Chambord (Henri V to legitimists) in 1883, at which time the succession was disputed between the representative of the surviving senior line (the Carlist claimant to the throne of Spain), and the grandson of Louis-Philippe, the Count of Pars. There is no doubt that the Kings of France before 1792 and between 1814 and 1830 had believed themselves to be the inheritors of the ancient Kingly prerogative and rights invested in Hugh Capet in 987, and passed on to his descendants, successors to the Crown. This very antiquity gave the force of precedence to the system of succession, and established precedence being most easily understood is less subject to ambiguous interpretation. Long before the revolution of 1789 French constitutional authorities had identified a system of laws, the fundamental laws of succession, which they showed had governed the succession to the Crown since at least the early fourteenth century, and whose origins go to the foundation of the Capetian Monarchy.

Until the short-lived Constitution of 1791 France's succession was ruled by custom, and these customs were enshrined in a system of laws which at various times were held, by those competent to adjudicate in such matters (primarily the Parlement of Paris composed of Magistrates and Peers), to be fixed and constant. The restoration of 1814 re-established the ancient Monarchy with all its pre-1789 powers and prerogatives, subject only to any limitations imposed by the Constitutional Charter of 1814 (article 74). The Charter did not attempt otherwise to regulate the succession to the Crown. It conferred on the members of the royal family (elsewhere defined as the children and grandchildren of the King) and on the Princes du Sang (Princes of the Blood), the right to a seat in the Chamber of Peers with precedence immediately after the President in order of their position in the succession, but these Princes could not take their seat without the prior permission of the King before each session, and could not vote until they were twenty-five years old.

The fundamental laws enshrined certain principles which bound the nation and the succession to the Crown for the first eight-hundred years of the Capetian Monarchy. During the interregnum of 1793-1814 these principles were applied to assure the titular succession of Louis XVIII rather than his niece, Marie-Thérèse, whom some French monarchists thought a more appealing focus for royalist loyalties. From 1815 they once again dictated the legal succession, and these selfsame principles were applied by French legitimists without dissent, until the death of Henri V (titular King), in 1883. These laws insured the peace of the Kingdom by allowing for there to be no doubt about the person of the heir to the throne, and thereby reducing the chances of a civil war over the succession. By preventing either the Sovereign, or any individual Prince, from alienating their own dynastic rights or those of other dynasts, these laws insured that personal preference or short-term interest could not divert the succession and thereby risk future challenges and dissent. The existence of fundamental laws which may not be overridden even by acts of the Sovereign registered in the Parlement is comparable to the supremacy of the Constitution of the United States, whose principles cannot be suborned by the acts of individual States or even Congress, and to parts of the modern French Republican Constitution which define the state as a Republic. In the USA, the individual states or Congress may pass laws which appear to have all the proper forms of law, but which nonetheless may be struck down by the Supreme Court because they conflict with the Constitution. In the same way a Monarch may issue properly registered decrees or letters patent that actually conflicted with the fundamental laws and were therefore void and ineffective. In France, there was no official body established to review these fundamental laws, but they were known and understood by all constitutional jurists. The French fundamental laws of succession may be identified as follows:

A. Succession to the Crown is limited to male princes descended from Hugh Capet.

A. The Succession to the Crown is limited to Males

The first and most important principle was that females were excluded from the succession, they could not transmit any right of succession, and that only males could succeed. This insured that neither the Crown nor its possessions could be alienated to a foreign sovereign. This principle was not enshrined in law, however, until the time came for a determination to be made as to whether the King's only daughter should succeed, or the nearest male representative of the House descended from Hugh Capet who became King in 987 a.d. The first occasion when this question arose was not, as has often been stated, when in 1328 the King of England claimed the succession by right of his mother, but in 1316, following the death of the child John I, only son of Louis X (King 1314-1316).

For the three hundred and thirty years of the Capetian Monarchy (a century longer than the existence of the Republic of the United States), male heir had followed male heir. On the death of Louis X his widow was expecting and gave birth to a son, John, immediately proclaimed King, but the young King died three days later. He left an elder sister Joan, but with the assent of Parlement her uncle Philip was crowned King as Philip V, reigning until 1322 (Joan was eventually allowed to inherit the Crown of Navarre which did pass by mixed succession). Philip also left four daughters and, again applying the principle of male succession, these were excluded in favor of his next brother, who succeeded as Charles IV. When Charles died in 1328 he left a pregnant widow who gave birth to a daughter. This ended the male line descended from Philip IV, and the ambitious nephew of the last King, Edward III of England (son of Isabel of France, married to Edward II of England), now sought the throne.

Edward's claim was without foundation. If females could succeed or transmit a right of succession, then the heiress would have been the only daughter of Louis X, and not the son of her great-aunt. The principle of male succession had been established on two previous occasions by the time Edward made his claim in 1328. The principle was not tested again until 1515, two hundred and sixty-one years later, on the death of Louis XI, who left only daughters and no son. Most crucially it was to be tested in 1589 on the assassination of Henri III when his brother-in-law and distant (in the male line) cousin Henri, King of Navarre, succeeded as King Henri IV. The French King had a Catholic nephew able to succeed, the son of his eldest sister, but nonetheless he stood by the principle of male succession. If there had been any doubt in the minds of Henri III's followers that Henri of Navarre was the legitimate heir despite his Protestant faith, the cousins' deathbed reconciliation demonstrated Henri III's belief that the principle of male primogeniture was stronger even than his belief that the King should also be Catholic. Some still disputed Henri of Navarre's right, however, and proclaimed the Cardinal de Bourbon King. He too died almost immediately, however, and those who sought a catholic Monarch now looked elsewhere. The "Catholic party" now tried to claim the throne for the Infanta Isabel (1566-1633, governor of the Netherlands, who left no surviving issue by her husband, Archduke Albert), the daughter of Henri III's eldest sister, Elizabeth, by her husband Philip II of Spain. This claim was unsuccessful, even though the Catholic resistance continued. The center of the resistance to Henri IV lay in Paris, and Henri was finally forced to capitulate and convert to Catholicism, at which time he pronounced the famous aphorism, "Paris is worth as Mass." The principle of male succession had triumphed, however, even though it was also clear that an heir would be bi-passed if he was not a Catholic. 

Henri III on his death bed passes the symbols of Kingship to his heir, Henri IV

From then until the end of the Monarchy only two Sovereigns left a daughter or sister but no male heir - Louis XVII (titular King) who was succeeded in 1795 in his rights by his uncle, the Count of Provence (Louis XVIII), and Henri V (titular King) the last male line descendant of Louis XIV who died childless in 1883. Had the rights of females had any support the young daughter of Louis XVI, sister of Louis XVII,  would surely have been a much more attractive candidate to be held up as the symbol of opposition to Napoleon, than her ungainly uncle. The principle of male succession, however, was permanently established, and the evidence of history is that this system was unchangeable. Never once in the more than one thousand years since the foundation of the Capetian dynasty has the throne or Headship of the House been successfully claimed by someone by right of a female (the English claim made by Edward III, which caused the Hundred Years War, ultimately failed).

B. The succession must pass by primogeniture

From Hugh Capet, crowned in 987, until the death of King John in 1316, the throne passed from father to son. While Robert I had succeeded Hugues Capet without prior coronation, his next two successors were crowned in their father's lifetimes. From the succession of Louis VI in 1108, however, every King of France succeeded automatically upon the death of his predecessor, without the need of prior coronation. With the death of Charles IV in 1328, it was necessary to go back only one generation to find the male heir, the son of the late King's uncle (his father's younger brother), who succeeded as Philip VI. When Charles VIII died childless in 1498, however, it was necessary to go back four generations to find a male heir with a common male ancestor who was King of France, and the primogeniture heir Louis XII duly succeeded. On his death, it was again a cousin of the late King, but three generations removed (four from a King) from his predecessor, who succeeded. Each time the legitimate primogeniture male heir became King without any divergence to a junior line.

In 1589 a dangerous situation arose for the Monarchy. With Henri III childless, the nearest male heir by male succession was not only eleven generations distant from a King of France (being descended from a younger son of Louis IX who had died in 1270), but he was also a Protestant who had been leading a civil war against the King for some twenty years, and a foreigner, the Sovereign King of a neighboring state (Navarre). Thus, from the point of view of the Catholic establishment, the King and his government, he was perhaps the worst candidate to succeed. Yet, on his death bed, Henri III overcame those scruples because of his belief in the one, fundamental principle of succession to the Crown - that the heir must be the male heir by primogeniture descent. From 987 until 1883 just short of nine hundred years later, the right of primogeniture was never varied.

C. Neither the Sovereign nor any other Person or Body can divert the Succession from the Primogeniture Male Heir

The personal preferences of a father for a one son over another, for one cousin in preference to another, are illegal in every European Monarchy.

This principle was never more surely tested than in 1420 when Henry V of England, following his defeat of the French royal forces at Agincourt five years earlier, married Katherine, daughter of King Charles VI and was adopted heir to the throne under the terms of an international treaty, the Treaty of Troyes. Henry V was the fourth English King to style himself King of France and quarter the French fleurs de lys by virtue of his descent from Isabelle of France, wife of Edward II. The French King was now persuaded to declare his own son, the Dauphin, a bastard (citing the occasional adulteries of his wife, Isabelle of Bavaria), and declared Henry V his heir. Katherine soon gave birth to an infant son who succeeded his father as Henry VI of England at the age of one, and with the death of the French King in the same year, was crowned and consecrated in Paris King of France soon afterwards. While the infant crowned King governed France through his councilors only by right of nomination and usurpation, the legitimate heir, the Dauphin, languished in distress with little prospects until the fortunate appearance of Joan of Arc. Thus, it may be safely stated that even the act of Coronation could not legitimize the usurpation of the Throne.

The startling victories to which Joan of Arc led the royal army transformed the situation and, in 1429, the Dauphin (de jure King) Charles VII was crowned King at Reims, on the throne of his ancestors. There has never been any doubt in the minds of French jurists, constitutional specialists and historians, that King Charles VI, even as anointed Sovereign, could not legally alienate the Crown nor the rights of the immediate heir (or any other Prince), even by the terms of a solemn international treaty. This fundamental principle bound his heirs and successors no less than he was bound.

The principle was again to be tested in the reign of Louis XIV. The treaty of Montmartre of 6 February 1662 declared that after the extinction of the male line of the House of Bourbon (described in this Treaty for the first time and then taken to mean the line descended from Robert, Count of Clermont, ancestor of the Bourbon House) which included the legitimate descendants of Henri IV and the Prince de Condé, the throne was to pass to the House of Lorraine, provided they gave up their own estates and sovereignty. The Princes of Courtenay who descended from a junior Capetian line immediately protested, as did the Duke of Vendôme (descended from Henri IV's bastard son). The Chancellor of France, Séguier, advised the King he could not make Princes of the Blood by declaration, this term of the Treaty was abandoned and no letters patent issued for registration by the Paris Parlement.

This principle was tested once more by an act of Louis XIV. Louis XIV had legitimated his natural children by a series of acts conferring greater and greater privileges upon them, in the years between 1680 and 1711. In July 1714, however, he stepped over the boundary of the law by issuing letters patent declaring that henceforth his sons the Count of Toulouse and Duke of the Maine would be considered Dynasts with a right of succession to the Crown, taking precedence after the Princes du Sang (i.e. the Princes of Condé and Conti) but before the other Capetian dynasts (the Courtenays). The Parlement refused to register the Royal Letters Patent on the grounds that they conflicted with the fundamental laws which pre-ordained the order of succession. The King then forced the registration by a process known as a "lit de justice" on August 2nd, 1714. The following May, further letters patent were registered declaring that there was to be no difference between the status of the Princes du Sang and the legitimate Princes. One recent French constitutional historian (Roland Mousnier, Member of the Institute, Les institutions de la France sous la monarchie absolue, Paris, 1974) described these acts of the King as "an act of tyranny" (p. 503). Following the King's death, these acts were revoked and annulled in July 1717. Mousnier describes this as "recalling that the King could not modify by his authority the fundamental statutes of the Kingdom, nor could he dispose of the Crown which was not his but the property of the State".

In 1700 the King of Spain, Carlos II, died leaving no issue. By his Will and with the assent of the Pope, the throne was to pass to the younger son (Philip, Duke of Anjou) of Louis XIV's only son, the (Grand) Dauphin who was direct heir by virtue of the marriage of Louis XIV to the Infanta Maria Teresa in 1660. Although the Infanta had signed a solemn renunciation of her rights to the Spanish Throne, a renunciation that was incorporated into the Treaty of Pyrenees and confirmed in the Will of her father Philip IV, her renunciation was considered void. Furthermore, Louis XIV was advised that such a renunciation was invalid as the Spanish succession could not be diverted from the legal heir(ess), provided the thrones of France an Spain were not combined in one person. Louis XIV and his brother, the Duke of Orléans, were also in line of succession to the Spanish Throne through their mother, Anne, born an Infanta of Spain. She too had solemnly renounced her rights to the Spanish succession in 1615-19, and her renunciation too was held to be void. Although unnecessary, Louis XIV issued letters patent duly registered in the Paris Parlement confirming that even after becoming King, Philip V of Spain as he had become, would retain his French rights.

The Treaties of Utrecht of 1713 which France and Spain were forced to sign to bring the War of Spanish Succession to an end, required that (a) Philip V renounce all his rights to the Spanish Throne, and reciprocally (b) that the French King, and the Dukes of Berry and Orléans renounce their rights to the Spanish Throne. France and Spain consented to this after lengthy negotiations, expecting  that the Throne of Spain would be guaranteed to the House of Bourbon. They also expressed the expectation that the Habsburg claimant to the Spanish Throne (titular Charles III), who had recently also become Emperor following his elder brother's unexpected death, would renounce his claims to Spain and the Indies. Philip, Duke of Anjou, renounced his French rights on November 5th, 1712, and this act was recorded by the Spanish Cortes on November 9th. On November 19th and 24th, the Dukes of Orléans and Berry renounced their rights to the Spanish Crown. These renunciations were made on a reciprocal basis, that each was dependent upon the other, that possession of Spain would be guaranteed to Philip V (an expectation not fulfilled because of the refusal of the Emperor to renounce) and that henceforth the Spanish Bourbons would be guaranteed the Spanish throne by the adoption of male succession (whose adoption changed a system which had legally governed the Spanish Kingdoms for more than 500 years). On March 10th, 1713, Louis XIV issued letters patent confirming these renunciations. To be enforceable, however, they needed to be registered and they were duly sent to the Parlement of Paris. The Premier President of the Parliament, de Mesmes, objected that this act "was opposed to the fundamental laws of the State which for centuries had ruled so well the succession to the Crown"; the King's lawyers explained the reasons, the necessity of bringing peace, and the Parlement duly registered them in proceedings entertaingly described by Saint-Simon in his memoirs. France desperately needed peace and this was the price it had to pay; it is argued by the Orléanists that since the Parlement did not issue "remonstrances" and the letters patent were registered that this was sufficient to override the fundamental laws. 

The Duke of Saint-Simon, who had been asked by the Peers to investigate how any such changes to the laws of succession might be made legally, reported in his memoirs that the King's failure to inform the Peers in good time of the forthcoming session and its purpose, and the means used to implement the renunciations, were illegal. He stated: "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. ...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. [Historical memoirs of the Duc de Saint-Simon, A Shortened Version, Volume II 1710-1715, edited and translated by Lucy Norton, London, 1968, pp. 289-290]. 

This potential break with the system of primogeniture was completely illegal. The Prince de Condé (whose position in the succession was actually enhanced by the renunciation) wrote a letter to the King after the session of Parlement stating "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". Louis XIV's overriding need to end the war, however, took precedence and once again the King used his powers to enforce the registration. It may be argued, however, that the King did not need to believe that his letters patent would, in practice be enforceable - they were merely a sop to satisfy his enemies. Furthermore the Marquis de Torcy, French Foreign Minister, had written to the British Ministers Bolingbroke and Oxford making it clear that no renunciation would be valid, and that any expectation that this would accomplish the desired end of separating the two Crowns would be disappointed.[1] These two letters are important elements as they made it clear in advance that the French succession could not be bound by any renunciation, even when made in an international treaty.

The desire of the allies to prevent the union of the French and Spanish Crowns was supported by the Spanish themselves who had no desire to become a French vassal state, as Naples and Sicily had been vassals of an absentee King of Spain for two centuries. A similar preoccupation had led to Carlos III of Spain's Pragmatic Decree of October 6th, 1759 [2] . In practice, had the Spanish and French thrones ever been united a similar solution would have been found (as had happened earlier, in 1700, despite the Treaty of the Pyrenees and the marriage contract of Anne of Austria, whose provisions had also been intended to prevent a union of the two Crowns by final and supposedly irrevocable renunciations of rights!).

Although this arbitrary diversion of the succession was never undone by legislation, contemporary Constitutional writers uniformly considered it invalid. Louis XIV's decision to exclude the descendants of Philip V, and the Spanish King's unwilling renunciation, were no more binding than the decision by Charles VI to deny the right of his elder son in 1420. Mousnier (op. cit., p. 504 ff) has written "this renunciation was null, because no eventual heir could renounce his rights which were fixed by the customs of the Kingdom. Philip V and his descendants conserved all their rights to the Crown of France". In volume II of his work (published 1980) Mousnier wrote: "the princes du sang could not cease to be such. They had to be ready at any time to succeed to the Crown of France. They could not renounce this calling. They could not lose it by accepting another sovereignty. The renunciation of Philip, Duke of Anjou, to the Crown of France .... is completely null in law. .... his descendants would be able to succeed to the Crown of France according to their order in succession, preferring always the elder branch to the junior.....:. "

No subsequent representative of the senior line of the House of France ever acknowledged the legality of this attempt to divert the succession. No attempt was ever made to draw up rules of succession to the Crown which altered the principle of male primogeniture succession established firmly since the early fourteenth century.

D. The House of France is one single House with several branches, several which are reigning or have reigned in other states.

The unity of the House of France was acknowledged as early as 1297 when Pope Boniface VIII used the term in the Bull canonizing Saint Louis IX. The members of the House (excepting the Courtenay family) did not use a surname, however, Princes signing only with their first names, until the legitimization of Henri IV's bastard issue who used the name Bourbon. Louis XIV used the phrase House of Bourbon as an inclusive term in an attempt to exclude the Courtenay family, who became extinct in the male line in 1733. In the three family pacts of the eighteenth century the phrase "Maison de Bourbon" was used in the French text, and was taken to include the lines of Spain and Naples. In the text of the third Pact of 1761, the phrase "Maison de France" was used in the draft French text (although revised to Maison de Bourbon in the signed and ratified texts) and "Casa de Borbón" and "Casa di Borbone" in the Spanish and Italian versions. Each of these pacts recognized the unity of the single House, the implicit rights of succession to the French crown of the junior lines, while the 2nd Family Pact, the Treaty of Aranjuez, established that the Orders of the Holy Spirit, the Golden Fleece and the Saint Januarius would be accorded at birth to the sons of the Kings of each of the three States. Both Louis XVIII and Henri V in exile and Charles X, when still reigning, in his protests against the repeal of semi-Salic law in Spain in 1830, described themselves as "chefs de la Maison de Bourbon". French Foreign Office records include the draft of a personal letter to the King of Spain (never sent because of the July revolution) in which Charles X corrected the words "head of the House of Bourbon to read Head of the House of France", noting that the Spanish House was a branch of the House of Bourbon (France). The title of Head of the House of Bourbon was assumed by the Infante Don Juan on the death of Henri V, by his son Carlos, Duke of Madrid, by his grandson Jaime, Duke of Madrid, and by his younger son (last of the Carlist line) Alfonso Carlos, Duke of San Jaime who died without direct male heirs in 1936. At the latter's funeral in the Church of Notre Dame des Victoires the carte des services (prepared by Count Jean d'Andigné, head of his Household) described him as "chef des maisons royales de France et d'Espagne".

With the death of the Duke of San Jaime, the representation of the senior line passed to Alfonso XIII, the exiled King of Spain, who assumed the title of "Chef de la Maison de Bourbon". King Alfonso had recognized Don Jaime as Head of the House on 25 September 1931 when they met at Fontainebleau. At the latter's requiem Mass in Notre Dames des Victoires, the invitation bore the plain arms of France accompanied by the inscription "Sa Catholique Majesté le roi Alphonse de Bourbon, ainé de la maison royale capétienne, roi d'Espagne". This title was assumed by the latter's eldest surviving son, the Infante Don Jaime (who had accepted his exclusion from the Spanish succession under the terms of article 64 of the 1876 Constitution, in the form of a renunciation) on his father's death, and by the latter's son, Alfonso, in 1975 in his turn. On Alfonso's death in 1989, his only surviving son and heir, Louis-Alphonse (Luis-Alfonso) then a minor was proclaimed "Chef de la Maison de Bourbon" by the Duke of Bauffremont, head of the Institut de la Maison de Bourbon.

E. The nationality of a dynast does not affect his right of succession to the Crown.

Several times in the history of the House of France, Dynasts have succeeded to foreign thrones without forfeiting their rights to the French Throne. Peter, Seigneur de Courtenay, grandson of Louis VI became Emperor of Constantinople and was succeeded as such by his two sons and grandson, while remaining a French Dynast (numerous surviving documents attests to his treatment as such by his cousins in France). Charles, younger son of Louis VIII, became King of Naples in 1265 but retained his French titles and he and his male descendants continued to be treated as French Dynasts until the extinction of his male line in 1414. This branch also occupied the Throne of Hungary until 1382. Later the claim to Naples passed to Louis, Duke of Anjou, a younger son of John II, whose heirs subsequently acquired the Neapolitan Throne but never lost their status as French Dynasts or their French Peerages and titles.

On 11 May 1573, Henri, Duke of Anjou, next brother of King Charles IX, was elected King of Poland, and was crowned as such 18 February 1574. Nonetheless, despite being sovereign of a foreign state, he succeeded without impediment as Henri III, King of France on the death of his brother, abdicating the Crown of Poland. The throne of Navarre, which passed by mixed male and female succession, was at various times born by cadets of the House and various Kings of France until being united in a personal union with the accession of Henri IV in 1589. When Henri IV, King of Navarre, was found to be the nearest male heir by primogeniture he succeeded as King of France despite being Sovereign of a foreign state (he was of course also a French Peer). In an exchange of protocols between Spain and France on 12/26 December 1707, Louis XIV accorded to Philip V of Spain and his sons the titles and rank of "fils de France" although they were also foreign dynasts. In the text of the Pact of Aranjuez of 1741 the Spanish Infants are referred to as Princes of the Blood, a unique title implicitly acknowledging their French rights. In each of the latter two cases the French dynast acquiring a foreign Crown received letters confirming that he retained his French dynastic rights, and it has been argued that this was a pre-requisite for retaining such rights. The argument that a foreign citizen  could not also be a dynast is based on an ancient French succession law which prevented foreigners from inheriting French fiefs. Yet it is clear that a specific right, such as that granted in a nobiliary patent, or equally a right to the Crown which is definable in law, is not affected by possession of foreign nationality as nationality can be changed upon succession, Hence there is not one example of a member of a French ducal family, for example, whose successions were closely regulated, being excluded from succeeding to a ducal title because an intervening generation enjoyed foreign nationality.[3]

The marriage of Prince Gaston d'Orléans (1842-1922) to the Imperial Princess Isabel of Brazil in 1864, placed this branch of the Orléans family as immediate heirs to the Brazilian Crown and the descendants of this alliance today include the Imperial House of Brazil. By a peculiar (and illegal) arrangement the then head of the Orléans family declared that this line would henceforward be permanently excluded from the French succession, and a subsequent arrangement made under the authority of the Duke of Orléans (in his pretended capacity as Head of the House of France) declared that this line could be called to the throne only on the extinction of all the other lines. This declaration was accepted by Prince Gaston, and one of the principle arguments used to persuade him was the important point (from the Orleanist perspective) that foreign nationality must exclude a dynastic line as without this exclusion the Orleans could only rely on the renunciations of 1712. 

If, however, foreign nationality was sufficient to exclude a dynast then a simple remedy to have settled the issue of the legality or otherwise of the renunciations of 1712 would have been to deprive Philip V of his French nationality upon becoming Spanish King. If foreign nationality was all that was required to exclude a dynast, there did not need to be any renunciations and no-one would have bothered to argue about the legality or otherwise of the means used. Indeed neither would there have been any further discussion of the rights of the Spanish line, as I have documented continued throughout the 18th century (see www.chivalricorders.org/royalty/bourbon/france/success/sucprt1.htm and following), nor during the debates over the French Constitution of 1791, nor at the time of the abolition of Salic law in 1830 nor the Spanish marriage in 1846. The grant of nationality is a civil act, and one which (certainly until modern times) could be easily reversed or revoked. When the Third French republic was confronted with powerful monarchist movements, the Law of Exile was passed in 1886 to inhibit monarchist activity, but how much more effective would it have been to revoke the nationality of the various claimants and thereby exclude them and their descendants forever! It is clear that such a fundamental right as that of succession to the Crown, not solely a personal right but a reciprocal one represented by the relationship between Crown and People (or the Nation), cannot be lost by the forfeiture of French nationality and there is no legitimate precedent to establish that it could. 

Louis XX, Duke of Anjou

F. Marriages of members of the Dynasty must be contracted according to the rites of the Holy Roman Catholic Apostolic Church and, from 1814, must also conform to the requirements of the civil law.

This law is not a point at issue between the representatives of the senior line and the Orléans line. 

G. No Prince may renounce the succession for himself or his issue and descendants, as the right of succession is inalienable. [The renunciations of 1712-13 are therefore illegal and void, and cannot exclude the descendants of Philip V from the French succession]. 

This has been the source of the greatest controversy since it is at least in part by virtue of this law that the rights of the Spanish Bourbons to the Headship of the House of France have been sustained today. It has been long-established in royal successions, however, that someone who has inherited a right of succession to the Crown cannot alienate that right from their issue or descendants, since those descendants have a right to their position in the succession by virtue of the mystery of birth, and not by the gift or grant of any person. The only exceptions to this latter rule is where the laws of the particular State specifically define circumstances in which Dynasts may renounce their rights or when Dynasts or their issue may be excluded (such as contracting an "unequal" marriage, a provision of many German successions, and of the Spanish from 1776-1981) - but such laws must be instituted according to the proper forms and may not themselves conflict with the fundamental laws or constitution of the State. The common law of England, like the laws of the pre-Revolutionary French Monarchy (and French civil law today), forbade the renunciation of an expectancy, and therefore if such a renunciation was to be legal it required the passage of particular laws defining the circumstances when it might be enforceable. In Great Britain, for example, no renunciation would be legally effective unless it was sanctioned by an Act of Parliament.

The circumstances of the renunciations of 1712-13 have been explained above; the principle of the inalienability of dynastic rights was affirmed in the protest by the Prince of Condé and Parlement of Paris in 1713. The legality of the renunciation was tested just eleven years later in 1723, when the as yet unmarried Louis XV becoming gravely ill. Philip V was advised by several leading French peers to  prepare to re-enter France should his nephew die. Louis XV recovered, however, and with his marriage and the birth of his son and later grandsons, the chances of the Spanish line claiming the throne receded. Torcy's letter to the British Minister is clear [1], and it found an echo in an address to the Queen (Anne) voted by the British House of Lords, 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.]. Louis XIV did not believe the renunciations could be binding, even while going along with the British demands for the sake of peace,  writing to the 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 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 prejudging 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 favorable 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)."

In 1791 the French 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 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 prejudged on the effect of renunciations in the dynasty actually reigning)].

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 prejudgment 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." 

The only other occasion on which a French Dynast attempted to renounce his rights to the Crown was in 1792 when Philippe Égalité, Duke of Orléans and direct male ancestor of the Count of Paris (through whom this latter Prince claims the title of Head of the House of France), stated his intention to renounce his membership of the dynasty in 1791 and 1792. He never followed these statements with definitive renunciations, but had he done so, they would have been void ab initio like the renunciation of 1713. 

The status of the renunciations of 1713, were put into further question by the abolition of semi -Salic Law in Spain in 1830/33. Correspondence in the Archives Nationales (Ministry of Foreign Affairs) and of the Foreign Affairs Ministry in Madrid, demonstrates that French and Spanish diplomats considered that the abolition of Salic Law, which removed the guarantee of the Spanish Throne to the Family of Bourbon-Anjou, rendered ineffective any remaining legality in the 1713 renunciations. The French Ambassador to Madrid, the Vicomte de Saint-Priest, wrote protesting against this act, stating that it was "a veritable affront to the Head of the Dynasty". The Prime Minister, Prince Jules de Polignac, wrote in his instructions to the Ambassador on 9 April 1830 "His Majesty does not consider it advisable as King of France to intervene in the internal affairs of a neighboring state, but as chef de la maison de Bourbon" (an important point affirming law D above). The Spanish Ambassador to Paris (the Count of Ofalia), in a letter dated 24 Apr 1830, reported back to the Spanish Secretary of Foreign Affairs the substance of a conversation he had had with Polignac a few days earlier: "Polignac has said to me that the Pragmatic Sanction was in contradiction with the renunciations made by Philip V for himself and his descendants to the succession to the throne of France, … if the Duke of Bordeaux should be lost, the renunciations of Philip V would not have any validity other than that they could be given by force or circumstances…." [Madrid, Archives of the Ministry of Foreign Affairs, Historical Section, Box number 2036, letter 309]. 

The Spanish Ambassador to the King of Sardinia (who himself had a residual right to the Spanish Crown under the Treaty of Utrecht), in a notable commentary of the consequences of the repeal of Salic law, wrote on 16 Feb 1833 (two and a half years after the advent of the Orléans Monarchy); "With Salic law abolished in Spain, as Philip V renounced his rights and those of his successors to the Crown of France on the condition that his descendants would succeed from male to male to that of Spain, and this condition now lacking, his successors recover their right to the Crown of Saint Louis as the Infant Don Carlos precedes also the House of Orléans. Two adversaries now present themselves [to the Orleans]: the Duke of Bordeaux and the Infant Don Carlos." [Madrid, Archives of the Ministry of Foreign Affairs, Historical Section, Box number 2036]. Louis-Philippe was himself reported by the Prince de Polignac (in the latter's memoirs), of having said "It is not only as a Frenchman that I take a lively interest in this question, it is also as a father. In the case, in fact (this will never happen in my time) that we have the misfortune to lose the Duke of Bordeaux without him leaving a son, the crown would have returned to my son, provided that Salic law is maintained in Spain; but if it is not, the renunciation of Philip V to the throne of France, in his name and that of his male descendants, will be rendered void because it is only by this act of renunciation that the descendants of this prince have acquired an incontestable right to the crown of Spain; but if they lose this right, they can reclaim that which they are given by French Salic law as heirs of Louis XIV. Then, as descendants of Louis XIV, they pass before my children." [Études Historiques, Politiques et Morales, Prince Jules de Polignac (p. 425)]. 

In 1844, when Louis-Philippe's younger son, the Duke of Montpensier, married the Infanta Luisa (younger sister and heiress presumptive to Isabel II), the question immediately arose as to whether, should Isabel die, it was possible for a Prince of Orléans to inherit the Spanish Throne because the Duke of Orléans had solemnly renounced his Spanish rights for himself and his descendants, however they acquired such rights, as a reciprocal act to Philip V's renunciation of his French rights. Louis-Philippe was advised that the renunciations were never intended to be interpreted as they were written, but only to the extent that their purpose, as stated emphatically in the Treaties of Utrecht, to separate the two Crowns, was accomplished. The British government vehemently protested to both Spain and France, citing the text of the Orléans renunciation which they demanded should be interpreted precisely as written; both countries decisively rejected this view. 

Guizot, the French Prime and Foreign Minister, wrote on 5 Oct 1846: "The King's Government does not think that the treaty of Utrecht authorizes, in any way, such a pretension. After the long and bloody war of the succession and to re-establish the peace of Europe, the open, recognized and proclaimed purpose of this treaty was: (1) To assure the Crown of Spain to Philip V and to his descendants; (2) to prevent the union of the Crowns of France and Spain under the same head, making it never possible. It suffices to recall the negotiations that had brought about the treaty of Utrecht and to read the text of the same (art VI) to remain convinced that these were really the thinking and the sense. By the marriage of the Infanta with the Duke of Montpensier, the Crown of Spain is assured never to leave the House of Bourbon and the descendants of Philip V; and, at the same time, the prohibition established against any possible union between the Crowns of France and Spain will remain in full force. The double intention of the Treaty of Utrecht is thus always accomplished. It would be strange to pretend to invoke, against us, those dispositions of this treaty which are intended to prevent the union of the two Crowns, and exclude those which assured the Crown of Spain to Philip V and his descendants. This would be, meanwhile, the result of the interpretation, which, in his Dispatch of 21 Sep, Lord Palmerston would give to this treaty." Guizot wrote again, on 11 Oct 1846: "A parallel renunciation (note: i.e. a renunciation by the Duke of Montpensier), presented by virtue of the treaty of Utrecht and the annexed renunciations which have been annexed, or more specially, in virtue of the renunciation of the Duke of Orléans (1712) to his eventual rights to the throne of Spain, is in our opinion without foundation. I have said to you in my letter of the 5th of this month what was the true character of the treaty of Utrecht, and which double purpose its authors proposed when drawing up the clauses relative to the Spanish succession. We want, on the one hand, to assure the throne to the descendants of Philip V, and on the other, to prevent the union of the French and Spanish Crowns. This was the object of the renunciations demanded on the one part of Philip V and on the other of the Dukes of Berry and Orléans. It is this, consequently, which determines the true sense and gives legitimacy to these renunciations. They contain what was necessary to achieve the purpose of the treaty of Utrecht; but they do not extend and cannot be extended, in fact, beyond that aim." The Spanish supported the French view, stating in instructions to the Spanish Ambassador to Paris, dated 15 Nov 1846, from the Minister of Foreign Affairs, that "the change in territories of the various states, the breaches by states of other conditions of the Treaties from Utrecht onwards, the change of dynasties and institutions….. meant that these treaties could be considered to have lost any force and vigor that these treaties would have had, … and that these treaties have lost all validity." [Spanish National Historical Archives, Estado, 1846, 7081].

H. The Sovereign must practice the Roman Catholic Apostolic Religion.

If this was ever in question it was resolved by the conversion of Henri IV in 1594. The Kings of France were endowed by the Popes with the title Most Christian Kings as long ago as the time of the Merovingian Kings. It was not until the reign of Charles V, King of France, however, that this title was used consistently. The Kings also referred to themselves in communications with the Pope (and by the Popes in reply) as "Eldest son of the Roman Church", and Henri V in a letter of thanks to Pius IX described himself as "Eldest son of the Church". In 1872 Pius IX wrote to Henri V, describing him as having the "sentiments dignes d'un roi vraiment très chrétien". The principle of Catholicity is accepted by both claimants, but it only applies to the King and there is no evidence that a Prince who embraced another faith would thereby deprive his descendants of their future rights if they returned to the Catholic Church. 

Louis XX, Duke of Anjou

I. Titles of the Dynasty

The children and grandchildren of the King were entitled to the style of Royal Highness. This style could be extended to other members of the Dynasty by grace of the King (and, in 1824, was extended by Charles X to the Duke of Orléans, his children and sister and on the Prince of Condé). The King determined at the same time that all future Princes du Sang would be so entitled. Typically, a French dynast who was the son of the King, or Head of the House, was styled: Son Altesse Royale Monseigneur N... de France, (or N..., Fils de France), Prince du Sang (Royal), with any subsidiary title (Count of Provence, Count of Artois, Duke of Angoulême, Duke of Berry, etc); cadets took the name of the founder of the line (Bourbon, Orléans, Artois, etc). 

Summary

The claim of Louis-Alphonse de Bourbon to be Head of the Royal House of Bourbon and representative of the Monarchy founded by Hugues Capet is based on the fact that he is the latter's senior male primogeniture heir by legitimate descent. He is a Roman Catholic, and a French citizen. The objectionss to his claim made by the Orléanists, simply stated are based on the renunciation of 1712-13 made by Philip V of Spain and their inclusion as a provision of the Treaty of Utrecht, and the foreign nationality of many of his ancestors.  However (i) the renunciations of 1712-13 were void from the moment they were signed, and even the Treaty of Utrecht could not affect the Fundamental Laws (just as the Treaty of Troyes of 1420 could not do so) (ii) any possible validity of those renunciations was rendered void by (a) the failure of the reciprocal actions required under their terms (see www.chiivalricorders.org/royalty/france/success/sucprt2.htm and following) and (b) by the repeal of semi-Salic Law in Spain 1830/33, and (iii) the foreign nationality of intervening generations cannot stand in the path of a Dynast's succession any more than it can prevent a foreigner from inheriting a French title.[4] For these self-same reasons there was no impediment to the succession of the Infante Don Juan in 1883, nor of successive senior representatives of the House of Bourbon to the Headship of the Royal House of France. The Family of Orléans accordingly follows eventually in succession after the most junior members of the Family of Bourbon-Parma.

The heir of the Orléans family, then Count of Clermont (now Count of Paris) took action in the French courts to try and prevent the Head of the House of Bourbon using the title of Duke of Anjou and the plain Arms of France. He failed in his efforts to persuade the French Courts to support his case (see statement by the Secretariat of the Mgr Alphonse de Bourbon (see www.chivalricorders.org/royalty/france/anjoucom.htm). More recently, on the death of the Count o Paris, the Duke of Anjou offered his personal condolences to the new Head of the Branch of Orléans, thus improving the relationship between the two lines which had been damaged by the earlier court case and other actions. The present Duke of Anjou is a frequent visitor to France and participates in many public functions, including attending as the guest of the French government the annual anniversary Mass of the foundation of the Les Invalides as the senior representative of Louis XIV. He is also a member of the French Society of the Cincinnati as the Representative of Louis XVI. 

NOTES

[1] "La France ne peut jamais consentir à devenir province de l’Espagne, et l’Espagne pensera de même à l’égard de la France. Il est donc question de prendre des mésures solides pour empêcher l’union des deux monarchies; mais-on s’écarterait absolument du but qu’on se propose …. Si l’on contrevenait aux lois fondamentales du royaume. Suivant ces lois, le prince le plus proche de la couronne en est héritier nécessaire …il succède, non comme héritier mais comme le maitre du royaume don la seigneurie luy appartiens, non par choix, mais par le seul droit de sa naissance. Il n’est redevable de la couronne ni du Testament de son prédécesseur, ni à aucun édit, ni à aucin décret, ni enfin de la liberalité de personne, mais à la loi. Cette loi est regardée comme l’ouvrage de celui qui a établi toutes les monarchies, et nous somme persuadés, en France, que Dieu seul la peut abolir. Nulle renonciation ne peut donc la détruire, et si le Roi d’Espagne donnait la sienne, pour le bien de la paix et par obéissance pour le Roi son grand-père, on se tromperait en la recevant comme un expédient suffisant pour prévenir le mal qu’on se propose d’éviter".[Ministry of Foreign Affairs, Mémoires et Documents, Espagne, Renonciations du Roy d'Espagne, vol 54, 10, pp.233 r-234 v]. "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"

In a letter of the same date addressed to Lord St John, British Secretary of State, Torcy wrote in the name of his royal master: "Ce serois un bien de pouvoir mettre en usage l’expedient que vous proposer pour empêcher a jamais le grand inconveniens de l’union des deux Couronnes de France et d’Espagne; mais il ne faus par dans ces occasions bâtir sur le sable, es prendre inutilement des precautions pour assurer des actes qui d’eux mêmes seroiens nuls; En voulans eviter un mal, ou tombeau en d’autres beaucoup plus dangereux." [ibid. pp. 235 r-v]

[2] The decree of 1759 provided that the descendants of Charles III could inherit both the Spanish and Two Sicilies Crowns, provided they were never united in the same person. When both were united, or when the heir to one inherited the other, the junior dignity of the Two Sicilies was required to be renounced to the next in line. 

[3] The case of the 1810 French Empire duchy of Navarre has been cited in contradiction of this claim. However, this unique case was based on the specific terms of the patent that tied the title to certain capital (a majorat), and provisions which disallowed the succession of a foreigner to a French majorat. This provision was specifically enacted in French Empire law and is further evidence that the exclusion of foreign nationals would not otherwise have been automatic on the basis of foreign nationality. 

[4] The second most senior French dukedom, Montbazon, has been held by an Austrian citizen for almost two centuries.

THE FRENCH SUCCESSION: RENUNCIATIONS OF 1712, TREATIES OF UTRECHT AND THEIR AFTERMATH IN INTERNATIONAL AFFAIRS

TO A DISCUSSION OF THE TREATY OF UTRECHT

FOR AN EXCHANGE ON THE SUBJECT OF LEGITIMISM VERSUS ORLEANISM

RETURN TO ORDER OF SAINT MICHEL

TO ROYAL HOUSE OF BOURBON