Anjouists love to cite Henri François d’Aguesseau as evidence that a Prince of the Blood does not lose his right of succession by becoming a foreigner. We will refute the claims made by d’Aguesseau. Here is the text in question:
[62r] February 1713. Observations of the Attorney General d’Aguesseau on a draft letters patent for the registration of the renunciations of Felipe V to the crown of France.
As the first essential quality to be seated on the Throne of France and to bear the oldest and most illustrious Crown in the world is the quality of Francis, that the birth gives it and that all our subjects living in foreign countries, their when they are born there, whether Princes of our blood, or whoever they may be, cannot even receive the least succession in our kingdom, if this defect is not corrected by our letters. We would have been careful.
Up to now, in the mouths of our Kings, we have not put this maxim, which supposes that a Prince is incapable of succeeding to a crown to which the voice of [62v] nature calls him because he is born or remains in a foreign country. It has been well argued that the right of Aubaine must take place against the sovereigns themselves, when they wished to collect a particular succession opened in this Kingdom, and Mr. Dupuy, who was the great advocate of this opinion, with little success in the cause of Mantoüe, is himself forced to confess that this maxim is new, that it was born at the earliest under the reign of Charles, and that before that time, we find several examples of the opposite.
There is, moreover, a great difference between a Prince Foreigner who wants to acquire particular property in this Kingdom by succession and a Prince of blood destined by birth to bear the crown of France.
One must be considered as an individual: subject in this capacity to the laws which regulate the order of particular successions, it is not surprising that he is opposed to the right of bargain and his quality of estranger [foreigner].
The other, on the other hand, has a right founded on laws superior to those which regulate the property of individuals: the fundamental maxims of the Estat, and that kind of perpetual substitution which successively calls the Princes of the blood each in their order to the Crown, are worth many letters of naturalness. The princes and the Estates are united by indissoluble bonds, the Prince cannot alienate the Estates nor the Estates cannot lose his Prince, and yet they would be lost reciprocally if it were true in general that the residence of A prince of blood in a foreign country was sufficient to annihilate his right to the crown.
So we have never thought of extending this kind of incapacity even to sovereignty. Would our Kings have suffered when they were told that they were incapable of succeeding to the kingdoms of Castile and Aragon, Naples and Sicily, and to the other estates on which they had pretensions, on the pretext that they were not there in these countries? Have they ever been objected to at the same time that the greatest powers of Europe employed all sorts of means to combat the right of our Kings to these crowns? With what force have we not supported ourselves, it is not yet fifty years, that the feudal Queen and the late Monsignor the Dauphin his son were not deprived of the right to succeed to the estates of the Catholic King, they were in relation to Spain in the same case where the King of Spain and his children were in relation to France, and had to fight in addition to a renunciation which would have been useless if the law of Aubaine could have excluded them? The extraordinary precautions and excessive solemnities demanded, at the time of the King’s marriage, that this renunciation be accompanied, prove, of course, that Spain, in demanding them, and France in granting them, equally assumed that, without an express renunciation and solemnly, the Reyne and all her posterity, who were born in France, would be able to wear the crown of Spain forever.
Nothing would be more dangerous than to establish today a contrary maxim! We know that in the matter of deadweight everything is reciprocal; the nations, against whom we observe it, observe it against us, and the same maxims upon which we shall at this day establish the renunciation of the King of Spain will be used some day against our Kings and against this Prince. Thus, all the old pretensions of our Kings on foreign crowns (pretensions formerly warmly supported, suspended now by the change of the affairs of Europe, but not abandoned and that a King must never even give up because it can come from the conjunctures it would be in state to make use of it) all the pretensions that new alliances have been added or may be adjoined to the old will be erased and destroyed by the maxim that is used as a basis for these letters patent: we will oppose to France that it has solemnly recognized that, to wear the Crown, must be born and to have his home in this Kingdom. It will be maintained [65r] that loyalty must be reciprocal for other sovereignties. The King of Spain, whose support it is desired to support, could repent of it one day, if the times were to change, if the House of Austria revived its pretensions, if a party were formed in Spain. against the authority of this Prince, we must not fail to say that he is a stranger, and that the reason which France has used to declare him incapable of reigning made him even more incapable of reigning in Spain. at most he became a foreigner for France, but he was born an alien for Spain: it must not be doubted that it was said-since it has already been said, and those who have written for the Archduke against the King Felipe V have argued, that without foundation, that there was [65v] an old loyalty in Spain which excluded from the Crown any Prince Foreigner. What will not one day say to his enemies, if the conjuncture favours them, when they can add that the justice of a like ruler, known publicly by France, must not be doubtful in Spain? Thus, in attempting to destroy Felipe’s right to the Crown of France, it is even undermined that of the Prince over the Crown of Spain, and it would be useless to reply that the latter right is supported by a will, since the foreigners are not no less incapable of testate succession than of legitimate inheritance, and consequently to assume that the incapacity which derives from the quality of foreigners takes place even with regard to the Crowns, is to publicly acknowledge that the King [66r] of Spain had no right to this monarchy, and to have France support an unjust cause by fighting for twelve years for this Prince against all Europe.
If we oppose to all these reasons the example of letters patent, granted in the year 1573 to King Henri III, then King of Poland, and in the year 1700 year King of Spain even for the conservation of their rights successive, in spite of the stay of one in Poland and the other in Spain, it is easy to reply that these letters, the only and weak foundation of the contrary opinion, are letters of precaution and not of necessity It is the prudence of all men, and still more of those who regulate the destiny of Empires, to foresee and prevent even bad difficulties. How many light and fanciful pretenses have caused very real evils, however, and have disturbed the peace of the greatest kingdoms? If ever this foresight was necessary, it was in time the letters patent of 1573. France had been agitated for several years by the civil wars, which religion had excited there. St. Bartholomew’s had lit the fire she wished to extinguish. All the Protestants regarded the Duke of Anjou, whom Poland had just elected for King, as their greatest enemy. The Duke of Alencon, his brother, seemed to have more inclination for them; it was to be feared that he might seize the pretext of the absence of the King of Poland to take possession of the Crown; it was necessary to extinguish this pretext, all imaginary it was. This is the real reason for the useful, but not necessary, precaution that was taken by these letters  and they mark it clearly. It does not say that the first essential quality to bear the crown of France is to be born to remain in France. They only insist that, in order to obviate all the doubts and scruples that time by opportunity would occasion, the King declares that the King of Poland will be the true heir of the Crown. So, once again, they are letters of pure precaution to prevent the doubts that could have been born under the circumstances. These are letters of simple declaration, in which Charles the Ninth only declares what is, without giving Henri III a right which he did not before.
The letters of the month of December, 1700, drawn on this model expressly state that the King does not entitle [67v] the descendants of the King of Spain to succeed the Crown, except where necessary, or would be, terms which do not mark that a superabundant precaution and we were then so convinced that His Majesty said in the preamble of these letters that he would think to make an unjust son to King, from which he is incapable if he now regarded as a Foreigner a Prince who It granted the unanimous demands of the whole Spanish nation. It is left to judge, after that, whether it is proper, to the dignity of the King and to the Truth, which does not change in twelve years’ time, to pose as the first foundation of the new letters patent, which is what the King He himself declared, in the first, that he regarded as an injustice of which he was incapable.
Finally, even if, in spite of all these reasons, we wish to establish this new maxim that the law of aubaine must take place in the case of sovereignty, nothing would have been done to exclude the king from Spain by so weak colour, it would not be, after that, worse condition than individuals and it was judged by an infinity of arrests that a Frenchman who, having long established his home in a foreign country and have had children, returns to his homeland with his family to spend the rest of his days, returns to roofs his rights and can exercise as if he had never lost them: it will not be the right of aubaine even more rigorous and as it is practiced against individuals, which will form an invincible obstacle to the return of the King of Spain if there is one day the heir apparent of the Crown and, therefore, it is useless and if we [68v] dare to say it, a pure waste Here we have the dangerous maxim that a prince born in a foreign country is incapable of succeeding to a crown which the order of him deposes.
Since these remarks are made, we have seen the renunciation of the King of Spain and it has been noticed that the Spaniards have taken very well the true spirit of the letters patent of 1700. The King of Spain declares that he expressly desists from what may have been added to the rights of nature by these letters patent: it is a very just expression, which indicates that the sole effect of these letters is to fortify the natural right said King of Spain and not to give him a new one. One could imitate this trick, which is as simple as correct, in the King’s letters patent and remove from the preamble or from the device all that goes beyond [69r] of this idea and which makes it understand that by destroying the letters of In 1700, the right of the King of Spain to the crown of France was completely annihilated, as if his right had not subsisted, except by the means of these letters. Indeed, it is a question today, not of the incapacity of the King of Spain that one can never establish, but of his renunciation which supposes him capable and which, if it is legitimate, derogates sufficiently to the letters of the month of December, 1700, without the necessity of infringing it in any other way, by establishing a maxim which does not conform to the truth or to the interests of the sovereigns.
Firstly, if someone’s foreign character were never an opposition to his claim to the throne, why are the observations being made? Why too were the letters patent to Henri III and Felipe V of France ever issued? The only answer is that the issue is a very real legal question. Otherwise, such documents would never have been issued in the first place.
D’Aguesseau then goes on to claim that the idea of excluding foreigners is a new one dating back to Charles IX. That is more or less true, but so what? A law being “new” does not make it less valid. All of the Fundamental Laws were new at some point. In fact, the idea of the Fundamental Laws didn’t come about until the 16th century. So by Aguesseau’s logic, the Fundamental Laws themselves are “new.”
[Further, his statement of “many examples” of foreigners becoming king is simply erroneous. Since the election of Hugh Capet, no one can definitively say that any foreigner became King of France. See: The Myth of Foreign Kings.]
Aguesseau then goes on to redefine “foreign prince” from any prince who is foreign, including a Prince of the Blood who has permanently left the Kingdom, to any prince not of the dynastic line of France. This is not stated directly, but is implied by the wording used and the statement that Princes of the Blood are “destined by birth to wear the crown of France.”
This argument has been used by Anjouists ever since to support the claims of the Spanish Bourbons. This is an attempt to redefine the meaning of Arrêt le Maistre from a prohibition of placing all foreigners on the throne to only those foreigners who are not of the “Blood of France,” as Anjouists like to put it.
The problem is that it is contrary to fact. Arrêt le Maistre makes it very clear that putting the kingdom in “foreign hands” is “against the laws of the kingdom.”
For further evidence, Anjouists cite Henri IV and erroneously claim that he was a foreigner (because he was born in Bearn) but say that he was not a “foreign prince” because he was of the “Blood of France.” This, of course, is flatly wrong. The Parlement of Paris ruled in 1505 that Bearnais were French. There is simply no evidence, after the Hundred Years’ War, of a Prince of the Blood becoming foreign and then taking the throne of France.
This evidence gives us the true meaning of “foreign prince,” a prince who is, or who has become, foreign. That is the plain, natural meaning of the words, and is certainly what the Parlement meant when it issued Arrêt le Maistre in 1593. And “foreign,” of course, means non-French, see Belloy:
Now it is quite certain that, without a Salic law, the Crown would have been exploited by an infinite number of non-French Princes [Princes non François], by the marriages of my daughters, daughters of France, who are married in a foreign nation, often in England, Spain, in Germany, in Lorraine, in other provinces of Europe…
[Belloy. On the Salic Law. P. 86]
And then we see a very ridiculous claim:
So we have never thought of extending this kind of incapacity even to sovereignty. Would our Kings have suffered when they were told that they were incapable of succeeding to the kingdoms of Castile and Aragon, Naples and Sicily, and to the other estates on which they had pretensions, on the pretext that they were not there in these countries? Have they ever been objected to at the same time that the greatest powers of Europe employed all sorts of means to combat the right of our Kings to these crowns?
Basically, because there is no such prohibition in the kingdoms mentioned above, there should not be, or is not one, for France. That is absolutely absurd. It is plain and evident that France is a different country than Castile, Aragon, or Naples. This is the 18th century equivalent of wanting to jump off a bridge because they did.
France has its own unique laws and traditions, one of them being the Salic law which prohibits the kingdom from falling into “foreign hands” and prevents a woman from taking the throne. Using Aguesseau’s argument, France might as well scrap the Salic law because Aragon and Castile didn’t use them.
And then there is this:
We know that in the matter of deadweight everything is reciprocal; the nations, against whom we observe it, observe it against us, and the same maxims upon which we shall at this day establish the renunciation of the King of Spain will be used some day against our Kings and against this Prince.
Here, he opposes the nationality requirement because other nations could use it against French princes. So what? That’s not a valid argument for saying the nationality requirement doesn’t exist.
Aguesseau then goes on to claim that the letters patent to Henri III and Felipe V of Spain were precautionary and unnecessary. Aguesseau claims that the purpose of the letters to Henri III was to prevent the Duke of Alencon from claiming the throne just because Henri III was in Poland. Despite whatever intentions Alencon may have had, that does not make Aguesseau’s claim of pure precaution correct.
Nowhere in these letters does it claim to be purely precautionary, nor does it claim that there is some inherent blood right that supersedes the requirement that the king be French. It is clear and self-evident that the letters are precautionary, but that does not mean they are unnecessary, nor is there any evidence to suggest such a thing. On the contrary, Charles the IX specifically stated that foreigners were “incapable of all succession” and would be struck “at death by the right of aubaine.”
Finally there is this:
Indeed, it is a question today, not of the incapacity of the King of Spain that one can never establish, but of his renunciation which supposes him capable and which, if it is legitimate, derogates sufficiently to the letters of the month of December, 1700, without the necessity of infringing it in any other way, by establishing a maxim which does not conform to the truth or to the interests of the sovereigns.
The phrase “interests of the sovereigns” (Louis XIV and Felipe V) tells us exactly what is going on here and why Aguesseau is engaging in such sophism: he is being a sycophant.
Aguesseau is doing exactly what Louis XIV wants. Louis did not care about the Fundamental Laws, as evidenced by his attempts to put his illegitimate children in the line of succession. Louis wanted to keep the possibility of Felipe’s succession to the French throne open.
That is why the words “foreign prince” are being redefined from their natural and intended meaning, and that is why Aguesseau is attempting to claim that the nationality requirement is fiction, despite all the evidence to the contrary.
It is, of course, all too convenient that all these claims are being made at the end of the War of the Spanish Succession, when it had become clear that France could not secure a military victory.
Thus, the conclusion remains the same. By becoming foreigners, the Spanish Bourbons forfeited their rights to the throne of France, making the House of Orleans the de jure and rightful Royal House of France.