The 16th century was a tumultuous time for France. The Wars of Religion dominated the landscape. And in 1584, King Henri III’s heir, the Duke of Anjou and Alençon, would die. This would leave the future Henri IV as the heir-apparent. The problem is that Henri de Bourbon was a Protestant, and all the previous kings had been Catholic.
It was during the 16th century that the concept of “fundamental laws” would develop.1 These Fundamental Laws, however, were not entirely set in stone.2 Not only with the Fundamental Laws being a new concept, but the issue of religion was now at the forefront, and many did not want a Protestant king.
The Catholic League refused to recognise Henri IV, despite him being the heir by the traditional rules of primogeniture. The League instead recognised Cardinal Charles de Bourbon as the so-called Charles “X.”
Competing Views of Succession
Different views of succession would emerge in this time. Some defended primogeniture through a process called representation (per stirpes). The problem is representation was for private inheritance, not that of the Crown.
Others, like the Catholic League and Jean Bodin, would defend the rights of the Cardinal de Bourbon by arguing in favour of consanguinity (Proximity of Blood).
The view that would arise, however, would be that succession by natural right, so argued by François Hotman.3
Citing Hotman, Professor Giesey writes:
The Chief trouble, Hotman argues, is that jurists have treated a right given by nature (priority of birth) according to the law of the Romans, and thereby have corrupted Nature by a legal fiction. The privilege of the family heir, suus haeres, comes from birth, and very ineptly has it been said that rights of heirs are transmitted by representation, since this fiction makes it appear that the heir acquires something in the name of another person and not in his own name, whereas (…) suitas — i.e. the true quality of being an heir — is personal, and cannot be transmitted by [human] law: it is given and it is taken away by Nature.
Nature and Nationality
Many people will read the above quote and assume there is some conflict with the so-called “Nationality” rule of the Fundamental Laws. Those of the 16th century never spoke of nationality, but of “naturalité” or “naturalness” — that is to say — a person who was a natural Frenchman, a regnicole.
In order to be in the line of succession, a prince must be French by his nature. And the French naturalité is acquired at birth by those “born in the kingdom, country, lands and lordships of the obedience of the King of France.”
Even today, we use the word “naturalisation” to refer to a foreigner who acquires new citizenship. A similar process existed in the Old Regime. Lettres de naturalité could be issued to a foreigner to make him a new Frenchman.
It is, however, invalid for such an act to be used for the purposes of succession to the Crown. Arrêt le Maistre made this very clear:
…said court declares all treaties made and to be made hereafter for the establishment of a foreign prince and princess of null effect and value, as done to the prejudice of the Salic law and other fundamental laws of the state.
“Treaty” (Traité) meant and means any sort of legal agreement. This means any legal instrument to declare a foreigner a Frenchman, for the purpose of succession to the throne, would be null and void.
This is very consistent with the implications of Belloy:
For a foreign king, non-French, would like to see the foreigners, and those of his nation, every day at the estates and offshoots of the kingdom: Who would eventually bring about an intolerable confusion and disorder in the French nation, impatient of dishonour as we can notice by the old stories of France, importunate, long, and useless to bring back now, that we recognize in ourselves this same instinct, and affection of our fathers…
So we see that acquiring French naturalness for the purposes of succession is invalid. From this, it must be concluded that a prince must be a natural-born Frenchman — that is to say — a natural Frenchman at birth.
Natural Right and the Fundamental Laws
It is empirically true that the Fundamental Laws came about through historical events, but it is wrong to have only a materialist view of their origins. Though instituted by man, the Fundamental Laws are of divine origin, being revealed by history under the Divine Hand of God:
By me kings reign and lawgivers establish justice; By me princes govern, and nobles; all the rulers of the earth.4
So, we see that succession to the Crown is a kind of natural right (meaning he is called to the throne by his nature), regulated by the divinely ordained Fundamental Laws. For a prince to be called to the throne he must have the following nature:
- He must be a legitimate, hereditary descendant of Hugh Capet;
- He must be a male;
- He must be descended in the male line;
- He must be French;
- His line of descent must be French;
- And he must be a Catholic.
The most senior agnate of Hugh Capet who meets all the qualifications above is, by his nature, the rightful King of France.
Foreign Nature of the Spanish Bourbons
In 1883, the last of the elder Bourbons in France, the Count of Chambord (Henri V), died without issue. The rest of the elder Bourbons were Spanish, having left France when Philippe, Duke of Anjou became King Felipe V of Spain. From then on, the Spanish Bourbons were foreign-born:
Carlos III. Born in Madrid, Spain. Died in Madrid, Spain.
Carlos IV. Born in Portici, Naples. Died in Rome, Papal States.
Infante Carlos (de jure Carlos V of Spain). Born in Aranjuez, Spain. Died in Trieste, Austria.
Juan, Count of Montizon (de jure Juan III of Spain). Born in Aranjuez, Spain. Died in Hove, England.
We have already said that the basis for who was a natural Frenchman was based on jus soli, and that jus sanguinis was only used in limited circumstances, and was never used past the second generation (that of a French grandfather).
The head of the elder Bourbons in 1883, the Count of Montizon, was the fourth generation to be born abroad. His nature was that of a Spaniard. In fact, he was the de jure King Juan III of Spain.
With the head of the elder Bourbons being a Spaniard, incapable of succeeding to the French throne, the Crown passed to the junior branch of the Bourbons, the House of Orleans. This was in the person of Philippe d’Orleans, who became Philip VII of France.
Of French Descent
It was decided in the 14th century, as part of the Male Collaterality rule, that one could not pass on a claim one does not have. This was to reject the claim of Edward III of England through his mother, Isabella of France.
As we’ve said, in order to have a claim to the throne, one must have the nature of a Frenchman. So, if one is of a foreign nature, one has no claim to pass on to to one’s children, even if they acquire a French nature from birth.
Thus we have the example of Don Luis Alfonso Gonzalo Víctor Manuel Marco de Borbón y Martínez-Bordiú, the current Anjouist pretender. Don Luis holds French citizenship through his grandmother. His ancestors, like all the Spanish Bourbons, were foreign:
Carlos IV of Spain. Born in Portici, Naples. Died in Rome, Papal States.
Infante Francisco de Paula, Duke of Cadiz. Born in Arunjuez, Spain. Died in Madrid, Spain.
Francis, Duke of Cadiz. Born Arunjuez, Spain. Died in Paris, France (exile).
Alfonso “XII” (de facto) of Spain. Born in Arunjuez, Spain. Died in Arunjuez, Spain.
Alfonso “XIII”* (de facto) of Spain. Born in Madrid, Spain. Died in Rome, Italy.
Infante Jaime, Duke of Segovia. Born in Segovia, Spain. Died in Gallen, Switzerland.
Alfonso, Duke of Cadiz. Born in Rome, Italy. Died in Avon, Colorado, United States (skiing accident).
[*Alfonso “XIII” later became de jure King of Spain with the extinction of the Carlist line.]
So, we see that there is no claim to be passed on in the line of the Spanish Bourbons.
Succession to the throne is based on a natural right that is held by the nature of the prince himself. So, it is the nature of the prince, granted by God, which calls the prince to his throne. In order to succeed to the throne, a prince must be the most senior agnate of Hugh Capet of legitimate descent, descended in the male line, a natural-born Frenchman of French descent, and he must be Catholic.
There is only one prince who meets these qualifications. That person is Jean d’Orleans, Count of Paris, titular Jean IV of France.
- Martyn P. Thompson. “The History of the Fundamental Law in Political Thought from the French Wars of Religion to the American Revolution.” The American Historical Review. 1986.
- Paul Lawrence Rose. “Bodin and the Bourbon Succession to the French Throne, 1593-1594.” The Sixteenth Century Journal. 1978.
- Ralph E. Giesey. “The Juristic Basis of Dynastic Right to the French Throne.” Transactions of the American Philosophical Society. 1961.
- Proverbs 8:15-16