THE TREATY OF UTRECHT.

THE history of modern diplomacy offers no negotiation of greater importance, after that of the peace of Westphalia, than that of the peace of Utrecht. In fact the treaty of the 11th April, 1713, had for its aim not only to regulate the interests of certain sovereign houses, arising out of the inheritance of the crown of Spain; but also to establish a salutary equilibrium among the European powers. It defined and limited the law established by the interest of the general security of the different states; and thus reconciling this sacred law with the respect due to the independence of nations in the interior exercise of their sovereignty, it completed the treaty of the Pyrenees, and fixed the fundamental principle of the law of nations among the moderns.

Since the year 1713, the increase of the power of Great Britain, the diminution of that of Holland, the aggrandizement of Prussia, the extension of the domination of Russia, the partition of Poland, the decrease of Sweden, the emancipation of the great colonies of America, and the establishment of representative monarchies, have changed the elements of equilibrium ; but the principles have remained the same, and the droit public of the south of Europe may be considered as still resting on the basis laid at Utrecht.

B

The treaty of Utrecht was followed by a peace that lasted during a quarter of a century between the most civilized nations in the world. During this period, the political spirit of Europe was strengthened and developed; the old enmity which separated France and England, since the time of the feudal wars, appeared extinct. These two great powers, united by a strict alliance, were the arbiters of the general tranquillity, until the war of the Austrian succession. With the union of interests and policy, were joined the more intimate communications of intelligence; and literature and science felt the advantage of the free intercourse of opinion between the two people.

The peace of Utrecht had been concluded by the Tory party, in spite of the opposition of the Whig party, who then urged, to the detriment of the true interests of England, a prolongation of the war against France. Long after the peace, party hatred still pursued the principal authors of the treaty, whom Europe now honours as the benefactors of mankind; nevertheless this great diplomatic act has always been carried into exccution with perfect sincerity.

I propose to explain the objects of the public compacts concluded at Utrecht as far as concerns the political interests of France and Spain; I will show the true sense of the treaties, and prevent, if possible, all room for error in that respect. I will examine especially if in a recent negotiation there is a real or possible contravention to the faith of the conventions. To discuss with a perfect understanding, and resolve with an exact certitude, this question of high jurisprudence, it will be necessary first to cast a coup-d'œil on the events which preceded the act of peace, in order to seize the spirit and bearing of the negotiations: we must penetrate the intentions of the contracting parties, in order to obtain the interpretation of the texts; we must, finally, seek in the execution of the diplomatic acts, and in facts accomplished with the consent of the nations interested, the true and just meaning of the treaty.

I. OF THE LAW OF SUCCESSION TO THE CROWN IN SPAIN.

The crown was at first elective in this country, during the period of the Gothic kings, until the invasion of the Arabs. After the conquest of Spain by the Mussulmans, the Gothic or Christian race maintained itself, as is well known, in Asturias, and the crown continued there to be elective, but only in the males of a family of heroes. The election was restricted to the members of this noble race during three centuries. The crown having thus become as it were the property of a family, they were led to proceed a step further. The common law of successions, in civil matters, was applied to the transmission of the crown or political power, in consequence of a confusion encouraged by the ancient Visigothic or Roman law, the permanent and fundamental law of the Christians of Spain, and which admitted females to an equal partition of goods with the males, differing in this from the Salic law, which, in the kingdom of the Franks, had excluded females from sharing the allodium or hereditary land. The application of private law to political law thus led in the two countries to inverse results. A cause peculiar to Spain, joined with the general causes which, everywhere else but in the kingdom of France, introduced the succession of women into the fiefs, produced effects, the developement of which was further favourised by the geographical disposition of the Peninsula, and the custom of the succession of females was established in the inheritance of the crown in the same manner as in the succession of the domestic inheritance.

This law of succession remained as a custom during more than two centuries, until the epoch, when Alfonso the Wise consigned it in his famous code entitled Las siete Partidas (about the year 1260). After having established and given the reasons for the rights of the eldest son in the family, the king expresses himself thus:-*

* See the text in the Appendix, No. 1.

"Although, according to ancient custom, fathers had generally the care to make a portion for their younger children, nevertheless wise and able men, taking into consideration the common good of all, and knowing that the partition of the succession of kingdoms could not be made without causing their destruction, according to the words of our Lord Jesus Christ, who has said that 'every kingdom which is divided shall fall into ruin;' have thought it just that the sovereignty of a kingdom should pass to the eldest son only, after the death of his father. And such has always been the usage, in all the countries of the world where the sovereignty has been transmitted by way of blood, and especially in Spain. To avoid therefore a multitude of evils which have happened, and which may happen again, they have established that the succession of the kingdom should pass always in direct line. And for this reason, they willed that, if there were no male children, the eldest daughter should succeed to the crown. And they ordained that, if the eldest son should die before inheriting, and should leave by his lawful wife a son or a daughter, that he or she should have the inheritance, and no other. But, in default of all those, the nearest of kin should inherit the kingdom, being capable of it, and if he has done nothing which ought to make him lose it. The people is, then, bound to observe all these laws; for otherwise the king could not be perfectly guarded, if the people did not thus guard the kingdom. And, in consequence, every man who should act against these laws would render himself guilty of manifest treason, and would merit the punishment incurred by all those who despise the authority of the king."

The book of the Partidas obtained the force of a positive law in 1338, by a royal act of king Alphonso XI. This law received a new confirmation in 1505, in the general assembly of the Cortes, called together in the town of Toro. A resolution, decreed by that assembly, reproduced textually the law of Alphonso the Wise; Charles V conformed to it exactly in his will, date June 6th, 1554;† and Philip IV having collected into one body or recopilacion the laws of Castille, in 1640, gave a new sanction to the law of Alphonso.‡

An unsuccessful attempt had been made, in the

* See the Commentarii in leges Taurinas, of Ant. Gomez; Geneva, 1628, fol. p. 186.

† See Dumont, Corps Diplomatique, supplem., tom. 11, part i, p. 141.

Nueva recopilacion de las leyes de Castilla; Madrid, 1640, fol. Law 15, tit. vii, lib. v.