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THE FRENCH SUCCESSION: THE RENUNCIATIONS OF 1712, THE TREATIES OF UTRECHT AND THEIR AFTERMATH IN INTERNATIONAL AFFAIRS
The Spanish Marriage Crisis
A crisis was inevitable once the issue of choosing a potential husband for Queen Isabel II and her sister arose. The Two Sicilies had restored diplomatic relations with Spain in 1844 in the hope that the King's second son, the Count of Trapani, would be selected as a suitable husband for the young sovereign. Such a choice, however, was not well received by liberal opinion, as the Two Sicilies court had been overtly hostile to the Constitutional Monarchy. The liberal government preferred an alliance with a Spanish descendant of Philip V or with a dynasty more sympathetic to Constitutionalism. There was a movement to repair the disastrous breach with the male line by a marriage between the Count of Montemolin, the elder son and eventual heir of the Infant Don Carlos. Those who feared a restoration of autocracy resisted this choice (who was excluded by with his father under the Constitution of 1834), even though it might have brought about a peaceful resolution of the dynastic dispute. Great Britain was an advocate of the cause of Prince Leopold of Saxe-Coburg and Gotha, younger brother of the King-Consort of Portugal and nephew of the King of the Belgians, two of whose siblings were married to children of Louis-Philippe. The French, anxious to maintain their influence in Spain and resist that of Britain, professed to be advocates of marriage to a descendant of Philip V, even though hoping that a marriage with the Louis-Philippe's son, the Duke of Montpensier. Both Great Britain and France claimed that their primary interests were the happiness of the Queen and the support of the Spanish people for her choice.
Prince Leopold was generally portrayed as the British candidate, not least because his brother had been so strongly advocated by Great Britain as consort for the Portuguese Queen, and because the husband of Britain's Queen Victoria was himself a Prince of Saxe-Coburg. Louis-Philippe, meanwhile had hopes that his eldest unmarried son, Antoine, Duke of Montpensier might yet be the Queen's choice. In February 1846 the British Foreign Secretary, the Earl of Aberdeen, was received by Louis-Philippe at the Château d'Eu, where the subject was discussed with French Prime Minister Guizot in the presence of the King. Lord Aberdeen subsequently reported to his government that Louis-Philippe had stated France's wish that the Queen should marry a Spanish descendant of Philip V, and that provided she did this he would not try and advance a marriage to his own son. Furthermore, Aberdeen reported the King as having stated that if she married a Spanish Infant (and the only realistic choices were the Infant Francisco de Asís and the Infante Enrique), he would not support his own son's marriage to Infanta Luisa Fernanda until the Queen gave birth to an heir or heirs. The French subsequently claimed that they had given no such assurance and had only agreed not to advance the marriage of the Duke of Montpensier to the Queen provided Britain made a similar undertaking regarding Prince Leopold. Furthermore France claimed that their version of the agreement had been made in a written memorandum that they had submitted to Lord Aberdeen, but which appeared to have been lost by the British Foreign Office, Lord Palmerston having confirmed that it could not be found in their records.
Sir Edward Peel's Tory government was replaced with the Lord John Russell's liberals at the end of June 1846, and Lord Palmerston succeeded Aberdeen as Foreign Secretary. It appeared that the new British Foreign Secretary was at first unaware of the Eu exchange, and put forward again the case for Prince Leopold. The French considered that the British had broken the Eu agreement and that any undertaking they might have made regarding the marriage of the Duke of Montpensier to the Infanta Luisa Fernanda was therefore no longer binding upon them. Having successfully persuaded Queen Isabel to choose her cousin, Infant Francisco de Asís, over the more liberal and potentially pro-British Infant Enrique and Prince Leopold, they obtained her to agreement to her sister's marriage to the Duke of Montpensier. This double marriage took place in Madrid on the Queen's sixteenth birthday, 10 October 1846. Some believed, erroneously as events turned out, that Infant Francisco de Asís was impotent, and there was perhaps a French expectation that the Spanish throne would thus eventually pass to the Infanta Luisa Fernanda or her descendants on the death of the Queen.
The announcement of the forthcoming marriage provoked a new crisis in international relations. Britain protested to France on 22 Sep 1846, in a letter addressed by Foreign Secretary Lord Palmerston to the British Ambassador in Paris, with instructions to deliver it to Guizot, the French Prime Minister. This read in part: "For it is perfectly clear that, by virtue of the renounciation (sic), made at the peace of Utrecht by the Duke of Orléans of that day, all his Descendants male and female from that time, and for ever, are excluded, disabled and incapacitated from succeeding to the throne of Spain in what manner soever the succession might fall to their Line and therefore the children and descendants of the Duke of Montpensier would, in consequence thereof, be excluded from succeeding to the Spanish Crown. But however plain the words, and however positive the effect of that renunciation must be acknowledged to be, the children or descendants of this marriage might endeavour to set up a claim in virtue of the rights which they have inherited from the Infanta, and thus, unless all pretence for doubt on this point were at once removed by some valid act of the Infanta for herself and her descendants, the stipulations of the Treaty of Utrecht might be set aside by an evasion, and the peace or Europe might be disturbed by another war on account of the succession to the Throne of Spain. But these considerations might also give rise to a question of more immediate practical application; because there seems good ground for the assertion which has been made in Spain, that in consequence of the exclusion of the Line of Orléans by the transactions of Utrecht, the marriage of the Infanta to the Duke of Montpensier would be contrary to the law and constitution of Spain." [Doc 41. Lord Palmerston's 1st letter].
Guizot replied on 5 Oct, emphatically rejecting the British interpretation of events, and stating: "The English (sic) Government also invokes, as fundamental to its protest, the treaty of Utrecht and the rules that it instituted for the succession to the Crown of Spain, in the interests of peace and European equilibrium. 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 despatch of 21 Sep, Lord Palmerston would give to this treaty. Never has such an interpretation been made until this date….. Never has the treaty of Utrecht been considered not invoked as being an obstacle to marriages between the various branches of the Bourbons of France and the various branches of the Bourbons of Spain." [Doc 42. Full text of Guizot's reply].
In an follow up to this letter, Guizot wrote on 11 Oct 1846: "A parallel renunciation, 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."
"According to this incontestable principal in itself, and which otherwise conforms perfectly with the text of the document in question, the renunciation of the Duke of Orléans signifies that, in the case where the throne of Spain would come to be vacated by the extinction of the descendants of Philip V to whom it is assured by the treaty of Utrecht, the descendants of the Duke of Orléans could not in any manner reclaim this throne, because in exchange for the abandonment made by Philip V for himself and his descendants to his eventual rights to the Crown of France, the Duke of Orléans has abandoned his eventual rights to the Crown of Spain, wishing to conserve these rights, equally eventual, which his birth gave him to the Crown of France, and which, in the interests of Europe, one considers incompatible with the first. That is the real and reasonable meaning of the renunciation."
"Does it follow that the descendants of Philip V to whom the Crown of Spain would come naturally, legally, by virtue of the proper rights founded on the same clauses of the treaty of Utrecht, must be excluded, themselves and their descendants, because they find themselves, or because their ancestors, married descendants of the Duke of Orléans? In other words the certain, incontestable right of the descendants of Philip V to the throne of Spain, must perish because they have allied with a family which has renounced the same?" [Doc 43. Guizot's second letter]. While Guizot in these two letters is correct in analysing the purpose of the renunciations and the treaty, he is on less certain ground when he suggests that it is possible for a descendant of the Duke of Orléans to succeed to the Spanish Crown if his right comes by virtue of a marriage to a descendant of Philip V, but not if it derives from a claim as next line after the extinction of the descendants of Philip V. This is not stated in the Duke of Orléans renunciation, and equality of exclusion is given to any descendant of the Duke, however such a claim is inherited. At the same time, Guizot is indeed correct to point out that it is nonsensical to exclude any Spanish Prince who marries an Orléans descendant, and that the allies had ignored the several marriages made before the repeal of semi-Salic law. The only issue that mattered if the line of Philip V is extinguished would be whether the two Crowns would be combined thereby. If the senior line of the House of France, bi-passed from the Spanish succession in 1700, had continued to reign, and Philip V's male and female descendants had become extinct, the next genealogical line was indeed that of Orléans but the thrones would still not have been combined in one person.
The three renunciations are either binding in their terms as stated, or they are not, and selections cannot be made to produce a particular result. The evidence is clear that Great Britain and her allies chose not to read them as definitive and exclusionary renunciations during the eighteenth century since, as Guizot pointed out, they raised no objections to inter-dynastic marriages that would have conflicted with its terms. Louis XV was betrothed to the Infanta Maria (then fourth in line of succession to the Spanish throne) on 25 Nov 1721, the Dauphin Louis, son of Louis XV married the Infanta Maria Teresa (sixth in line of succession), a younger daughter of Philip V (who died without leaving issue) in 1744, the Count of Provence, future Louis XVIII, in 1771 married Princess Giuseppina of Savoy, whose mother was the Infanta Maria Antonia, and his brother the future Charles X in 1773 married her sister; the Duke of Orléans, future King Louis-Philippe married Princess Maria Amalia of the Two Sicilies in 1809; Charles, Duke of Berry married Princess Caroline of the Two Sicilies in 1816; Henri of Orléans, Duke of Aumale, married Princess Maria Carolina of the Two Sicilies in 1844; Philippe, Count of Paris, married his Orléans cousin Infanta Isabel, daughter of the Duke of Montpensier, in 1864, who was an Infanta of Spain as daughter of the Infanta Luis Fernanda. It was only the marriage in 1846 of the Duke of Montpensier to the Infanta Luisa Fernanda, then heiress presumptive to the Crown, which occasioned any protest. Each of these Princesses were Spanish dynasts, and therefore conferred a right of succession to Spain on their descendants, but under the terms of the renunciations of 1713 the issue of these marriages, being descendants of Philip V, would have been excluded from the French succession.
Equally, the descendants of marriages between Princes descended from Philip V, and the female descendants of Louis XV or the Duke of Orléans, would have likewise meant that these Princes would have been excluded from the Spanish succession. Yet there were several marriages between male descendants of Philip V and female descendants of the King of France and the Duke of Orléans: in 1721/22, Louise Elisabeth d'Orléans, Mlle de Montpensier, daughter of Philippe, Duke of Orléans married Luis I, King of Spain (but left no issue); in 1739 Louis XV's eldest daughter, Elisabeth, married Philip, Duke of Parma; in 1907 Princesse Louise of Orléans married the Infant Carlo, Prince of the Two Sicilies - their grandson became King of Spain in 1975, despite his ancestor's renunciation. The literal interpretation of these renunciations would have prohibited the succession of Isabel II and all her descendants to the throne of Spain and of those of Charles X and Louis-Philippe to the throne of France. Great Britain never objected to the succession clauses of the Spanish Constitutions of 1812, article 53 of title 7 of that of 1837 or article 52 of Title 7 of that of 1845, whose terms affected one or more of the stipulations of the renunciations and the Treaty of Utrecht; she also ignored the obvious conflicts of the marriages cited above with the terms of the 1713 renunciations.
Lord Palmerston completely rejected these arguments in his reply to Guizot, dated 31 Oct 1846, stating: "To these instances Her Majesty's Government would reply that even if they were cases in which the stipulations or Utrecht had been overlooked, the fact of their having been so overlooked by statesmen in the last century would be no reason why they should not be appealed to and observed by statesmen in the present century, if those stipulations are in themselves clear, positive and indisputable. Doubtful stipulations may receive an interpretation from precedents, but a Treaty that is plain and precise can only be invalidated by an act as formal as itself. A law is not abrogated for one man, because another man has abstained from appealing to its enactments, and a Treaty is not annulled for one generation because another generation under circumstances essentially different, may have allowed his stipulations to lie dormant. But the cases quoted by M. Guizot are very different from that of the marriage of the Duke of Montpensier."
"In all these cases the Salic law was in force both in France and in Spain, the Princesses in question, instead of being immediate heiresses to the Crown of the country to the Royal Family of which they respectively belonged were, in the two first instances, by the law of France altogether excluded, and, in the third instance, by the law of Spain, excluded until all male heirs should be extinct. It is obvious that, while the Salic law was in force in both countries, the strict enforcement of the stipulations of Utrecht in regard to females might well be considered as less important than it has now become, since the change which has of late years been made in the law of succession in Spain. But with respect to the cases quoted it may be observed as to the first, that after that marriage, the treaty between Spain and Austria in 1725 still further confirmed and recorded the exclusion of all French Princes and their descendants from the throne of Spain." The renunciations were drawn up before the introduction of semi-Salic law, however and had been annexed along with the decree establishing semi-Salic law to the Anglo-Hispanic Treaty of Utrecht of 10th July 1713. The text of the renunciations were not altered after the introduction of semi-Salic law, so if they were effective as dynastic renunciations, it did not matter which system of succession prevailed. If a right or privilege granted under a Treaty is ignored for a long period of time, in this case more than a century, there is a good argument for claiming that it has been abandoned. This was the view of both France and Spain not only in regard to the Treaty of Utrecht but also the Family Pacts that had been vitiated by the alliance between Napoleon and Charles IV. The British also cited as support for their argument a Treaty, that of 1725, to which she was not a party, whose terms, along with the renunciations annexed, both parties had violated in its most important particulars soon afterwards. It is highly dubious in international law whether a third party state can claim any privilege by right of a Treaty to which it was not a party when none of the parties to that Treaty have chosen to rely upon its terms.
Lord Palmerston continued his rebuttal, stating: "Her Majesty's Government are surprised that in the face of such renunciations and of such stipulations and engagements, the French Government should endeavour to represent, as is implied, though not directly asserted, in M. Guizot's Despatch, that the descendants of the Duke of Montpensier could relieve themselves from the positive and perpetual exclusion which attaches to them from the transactions or Utrecht, by the plea that they would inherit rights from the Infanta Luisa Fernanda. It is manifest that no claim transmitted to them by the Infanta could counterbalance or set aside the positive disqualification which they will inherit from the Duke of Montpensier. Nothing is more common than that the disqualification inherited by children from one of their parents, overrides the qualification which they inherit from the other………. . The French Government therefore must either admit the descendants of the Duke of Montpensier are excluded by virtue of the renunciations in the Treaty of Utrecht, or they must acknowledge that they have violated the engagement contained in that Treaty." [Doc 44. Palmerston's rebuttal].
Britain had followed her protest to France with one addressed to Spain, dated 5 Oct 1846, in which Henry Lytton Bulwer, the British Ambassador, wrote that "the offspring and descendants of the Duke of Montpensier with the Infanta Luisa Fernanda, if that marriage should take place, would be forever excluded from the succession to the Spanish Crown, in the event of a failure of succession in the person of Her present Majesty the Queen Isabella, nor would any right or capacity which such offspring or descendants of the marriage of the Duke of Montpensier with the Infanta prevail against the positive Disqualification and Exclusion which would attach to them as descendants of the Duke of Orléans of 1712. The British Government deems it to be its duty to make this Publick and Solemn Declaration of the Incapacity, Inability and Exclusion in regard to the succession to the Throne of Spain which would attach to any Issue or Descendants of the marriage of the Infanta with the Duke of Montpensier, if in utter disregard of the Remonstrances and Protests of Great Britain, that marriage should be persisted in, and thus, if at any future time any dispute should in consequence then arise, as to the succession to the Throne of Spain, and if Great Britain should, in such case, deem it proper to take part in any dispute in support of the Principles which have been set forth in this Note, it will not be in the power of any of the Parties concerned to allege that the British Government did not give timely warning of its sentiments and views." [Spanish National Historical Archives, Estado, 1846, 7081].
Spain had replied to the first protest made to France, in a letter dated 29 Sep 1846, that this was a direct interference in Spain’s internal affairs and contrary to the principles of Spanish independence, and therefore nothing to do with any foreign powers. In instructions to the Spanish Ambassador to Paris, dated 15 Nov 1846, the Minister of Foreign Affairs wrote 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]. He continued by listing the various marriages between the French and Spanish houses which had taken place without protest, although the enjoyment of rights of succession by their descendants was a theoretical breach, and also the clauses of the preceding Spanish Constitutions which likewise conflicted with these treaties.
While Britain did not make further protest to Spain, the exchanges between Guizot and Palmerston continued into the next year. On 8th January 1847, the British Foreign Secretary again took up his pen to complain about the French actions, writing: "The position laid down by Her Majesty's Government is plain, simple and incontrovertible. It is this the Duke of Orléans of 1712 renounced for himself and all his Descendants all claim or right to succeed to the throne of Spain, and declared himself and his Descendants incapable of and excluded from such succession, whatever might be the way (and this includes the way of marriage) in which the succession might devolve upon their line. That renunciation was embodied in the Treaty of Utrecht, and thereby was made binding on France, and became part of the public law of Europe and it was moreover incorporated in the law both of France and of Spain. The Duke of Montpensier is and his children will be Descendants of the Duke of Orléans of 1712 and the Duke of Montpensier and his children are therefore incapable of succeeding to the throne of Spain 'whatever may be the way in which that succession may devolve upon them.' This is the position of Her Majesty's Government. It is founded upon the plain and positive letter of treaties and of laws, and it cannot be shaken by quoting marriages which took place a century ago. None of these cases were similar to that which is the subject of the present discussion, for in none of them did a French Prince marry the heiress presumptive to the throne of Spain. In all those cases the Salic law was in existence both in France and in Spain; and when the Infanta Maria Theresa married the Dauphin in 1745, there were several male Heirs to the Crown of Spain… It is on 'the definitive conditions of that peace' that Her Majesty's Government, in this discussion, have taken their stand; and it is 'the letter and the spirit' of that Treaty of which they deem themselves entitled to claim the faithful observance." [Doc 45. Final despatch of Lord Palmerston]. Since the issue of the Infanta Luisa Fernanda were considered dynasts in Spain, by the British interpretation of the renunciations and treaties, the undertakings made by the Duke of Orléans in 1712 had been broken. Since these undertakings had been made as part of a reciprocal exchange, any remaining validity of the renunciation by Philip V was vitiated by this breach of reciprocity.
Guizot's reply, while evidently not satisfactorily ending the matter as far as Great Britain was concerned, represented a final statement by the French Government on this issue. "The thinking of the treaty of Utrecht I repeat, has been to prevent the union of the Crowns of France and Spain on the same head. If that day should come, as Lord Palmerston has suggested in his present hypothesis, that the rights to one and to the other Crown are found reunited on the head of one Prince, I would not hesitate to recognise that he could not retain both of them." [Doc 46. Final despatch of M. Guizot]. The government asked a leading French historian, Charles Giraud, Member of the Institute, to examine the question. His conclusions (Le Traité d'Utrecht), published in Paris in 1847, decisively reject the British view, and maintained that the sole purposes of the renunciations were to prevent the union of the two Crowns, and assure the Crown of Spain to the descendants of Philip V. In maintaining that the renunciations could not impeach the rights of the descendants of the person renouncing from succeeding, in the case of the Duke of Orléans, to the Spanish throne, M. Giraud did not directly address the consequent parallel that the renunciation by Philip V would not therefore be effective in excluding his descendants from that of France. Not only must the same logic be applied, however, but the fact that these two renunciations were reciprocal, and therefore mutually dependent, must mean that if that made by the Duke of Orléans was ineffective in impeaching the succession of his descendants to the Spanish throne, that by Philip V cannot exclude his descendants from that of France.
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