he could establish a thing contrary to all the laws of the kingdom which speak of succession, contrary to the regular order and to the ancient and particular essence of the right of blood and heredity, a right proceeding from his glorious ancestors the kings of Castile and Leon, and in vigour in this kingdom from the most remote times; who will not deny that another king of Spain, Charles II, our sovereign, had not equally the right to revoke, in favour of the public convenience and utility, a disposition equally exorbitant, irregular, and contrary to the national laws, to reestablish the succession in its natural order and ancient state, in conformity to the laws of the kingdom, observed and kept during the whole succession of ages?

"If then our king Charles II has done nothing else, by his will, than declare that it was not convenient for the public expediency of his kingdom that the renunciation of his sister should cause the exclusion of her descendants; if this will was only made with deliberation, and the advice taken of the holy apostolical see; if, moreover, Charles II ordained to all his subjects to receive for his successor Philip V, and to swear fidelity to him; if the entire kingdom, obeying their king and lord, as it was their duty to do, accepted, received, and took the oath to his successor in every city: who can doubt of the validity of this act, made with the same power and more formality than the renunciation,—of this act, much more conformable to the laws of succession and to the right of blood? Our laws do not exclude from the crown foreign houses; Austria was admitted to it without the honour of the throne having suffered. King Charles II, as a sovereign legislator, took off the hindrance which his father had imposed by the renunciation; the utility of the kingdom demanded it, and the right of blood did not permit us to suffer any longer the injustice done to Maria Theresa, grandmother of our Philip V, in excluding her descendants, when the laws of the kingdom did not exclude them."*

Thus spoke the Spaniards, and, in the point of view of their internal public right, as well as of the law of nations of civilized Europe, they were right. Charles II could do what had been done by Philip III and Philip IV, and with the same motives. Now, as the archduke Charles (or Charles III, as the confederates called him) drew his claim only from the renunciation imposed upon Anne of Austria by Philip III, in his contract of marriage and in his will,† he could not

mained no posterity, but from Maria Anne of Austria, daughter of Philip III and mother of the emperor Leopold. See above, p. 22.

* This curious document was published for the first time in France by M. Laboulaye, loc. cit. p. 499.

†The will of Philip III was expressed thus:-"And since it has

contest, in jure, the correlative right which Charles II had to make a similar act in an inverse sense. Philip III and Philip IV had acted as sovereign legislators, in introducing an exception into the common law of the state; Charles II acted by the same title and with the same right, when he repealed this same exception which was no longer necessary.

But, in point of European public right, the letters patent by which Louis XIV conserved to the duke of Anjou the right of succession in France, and the occupation of the Spanish places in Europe and in the Indies by the French arms, constituted an equally just casus belli. The coalition had not the right, by that alone, to disown the king of a free and sovereign state, and to elect a new king of Spain; but it might require the withdrawal of the letters patent, the separation of the crowns, and the evacuation of the Spanish Low Countries. It was to this temperate point, founded on reason and on the right of all parties, that a return was made at Utrecht, when the European interest had prevailed over personal rivalries; this was the point occupied even in the act of the grand alliance of 1701. But it was departed from since the treaty of the 16th May 1703, and since the cession made by the emperor Leopold to the archduke Charles. pleased God to give me two daughters, of whom the eldest, the infanta lady Anne, for just considerations of the public good of these kingdoms and of Christendom, has been given in marriage to the very Christian king of France, under the conventions and conditions that may be seen in the articles of the contract of marriage and of the renunciation; therefore, at the instance of my kingdoms, a law was made, according to the said articles stipulated in the contract of marriage, to which articles the said very serene infanta consented. . Thus, confirming, agreeing to, and approving the things aforesaid and the said law, I command and declare that the said conditions of the contract of marriage must be conserved in everything and everywhere. . . . . For so it is expedient for the good of these kingdoms and of Christendom..... Whereby, consequently, the infanta lady Mary would remain in the present state as an eldest and only daughter, who I declare and command shall succeed in their kingdoms and states, she and all her legitimate posterity, after the extinction of the princes don Philip, don Charles, don Ferdinand, and their descendants."Dumont, loc. cit. p. 25.

G

The pretext was the invincible distrust inspired in the foreign cabinets by the ambitious temper of Louis XIV. The true reason was rather, perhaps, the particular animosity of the chiefs of the coalition. The new king proclaimed by them, Charles III, published his manifesto on the 9th of March in the year 1704. This also is an important act, as it marks the passage from one order of ideas to another, in the party of the coalition, and as it seems to be the source from which some English writers have lately drawn their ideas touching the political relations which should exist between France and the Peninsula, and touching the interpretation of the renunciation of the duke of Orleans to the crown of Spain, a renunciation of which we shall speak further on, in treating of the peace of Utrecht. The objections are the same; and since they found a peremptory answer in the negociations and in the treaty of Utrecht, it is necessary to know them.*

*

The manifesto begins by explaining the genealogical rights of the pretender; it reproduces the reproaches of universal encroachment which were then lavished on king Louis XIV; it attacks the authenticity of the will; and it finally discusses the institution of heir, and it refutes in its way the explanation which is there given of the renunciations of Anne of Austria and of Maria Theresa.

"The question," it says, "is to examine this interpretation in itself, if it be true that a prince of Bourbon, descendant of Maria Theresa, can inherit Spain, notwithstanding the renunciation of that princess, provided he be not at the same time presumptive heir to the crown of France......

"To overthrow this exception from top to bottom, and to show that there has never been chicanery more insupportable and less capable of excusing the violation of the most solemn treaties and oaths, it is more than enough to show......

"1. That the exception of the motive ceasing which is put on the tapis, in the pretended will, is so little applicable here, that there is not a true jurisconsult who would dare to reason as is there reasoned, for fear of prostituting himself. One must have only what is called a cerebrine jurisprudence, that is to say, that persons of small instruction take it into their heads to judge by slender

* See the manifesto, in extenso, in Dumont, loc. cit. p. 140.

appearances, to confound the condition with the cause expressed in any disposition... There is a great difference between if and because; the enunciation moreover by if is in suspense; but the renunciation of which the reason is to be given is pure and absolute, and may subsist if that reason should not have place; often men do not express all their motives, or use pretexts to cover their real

reasons...

"2. In contracts, the motives cannot be interpreted to the prejudice of another...

"If the intention of those who interfered in the renunciation had been uniquely to hinder the junction of the two monarchies in the person of a single monarch, and to limit the disposition to this single case, they would and should speak as it is usual to explain oneself in occasions of such great importance, to obviate doubts and difficulties."...

We are here transported from the high regions of political right to the narrow domain of chicanery; from the superior theories of the right of nations, to the inferior arena of exegetical jurisprudence; from the sphere of state reasons, to the quibbles of civil discussions.

What then is the motive of a political exclusion, if it be not its determining cause? And can the effect subsist, when the reason of its being is suppressed? Now, can the reason of being of the exclusion and of its abrogation be more clearly expressed than in the marriages of the two queens and in the wills of the three kings? A question of public good sense cannot be decided by a lawyer's quibble.

"4. The exception of the motive ceasing has no place," continues the manifesto, "since the motive of hindering the union of the two crowns does not cease (the thing objected here is the letters patent of 1700, which reserve to the duke of Anjou, on leaving for Spain, his rights to the crown of France).

"5. The evident necessity and safety of Spain, to the end that she may not be one day reduced to a province, demand that she be not exposed to it, and the surest means of avoiding this fatal conjuncture is to cut entirely the thread of succession of the French princes in Spain."...

There is not the question. We want to know if the intention was to run to this absurd extremity of striking with general and absolute incapacity the descendants who should gather a new right in a fact foreign to the person renouncing, like the fact of the

testament of Charles II, or of a marriage, the danger of the union being put aside. It is still the transformation of a political question into a personal question.

"6. There are still," the pretender continues, "other motives of the renunciation which subsist; for it was believed doubtless, in making the treaty of the Pyrenees and the contract of marriage, that the danger for Spain and for all Christendom would be scarcely less, if these two great crowns were joined in the same house of Bourbon, already so formidable, and if two kings so strictly united, and whose extensive countries are joined immediately and on the same floor, were in a condition to give mutual assistance."

Here is established a parity between the strict union of the reigning houses and the reunion of the two crowns on one head. This argument was refuted by the treaty of Utrecht, which recognized the Spanish royalty of a grandson of Louis XIV. It has nevertheless been found again, in our days, under the pen of a foreign minister. But, at this rate, it would have been necessary to prohibit the marriages between the two families of Spain and France, and the policy of all times has been on the contrary to multiply them, from Philip III to Isabella II. Interpreted as the manifesto would have it, the right of nations, prohibiting the solid and pacific amity of two peoples, would be an abominable tyranny. There is no people, animated by noble and generous sentiments, that would submit to it. We shall return to this point.

"7, 8, 9. (The manifesto argues here on the retortion of the Salic law, indicated in the contract of marriage, and in virtue of which, by a sort of talion, the Bourbons could not obtain, by their marriages with the Spanish princesses, rights which they would not accord reciprocally in France to Spanish princes.")

The retortion of the Salic law was only a private clause; the Spanish and European reason of state had nothing to do with it. Therefore, it is less expressed than indicated, and rather out of haughtiness than as a compact. The talion, moreover, must be limited to the case of lapse by succession.

"10. Therefore," says the archduke at last, "since all the reasons of the renunciation could not be well expressed . . . . . a clause has been added which decides everything: the said lady Maria Theresa says and declares that she is and remains well and duly excluded,