A few additional notes on the ‘vice of peregriniste,’ as I've just had a rather lengthy exchange on this subject on another forum with a pro-Orleans interlocutor.
In 1819 King Louis XVIII made an interesting commentary on the dynastic rights of the Spanish Bourbons. What is so interesting about the pragmatically-minded King's analysis is that he discusses only the political prospects of the Spanish Bourbons, explicitly declining to comment on the impact of renunciations. Instead the King only mentioned the political chance that each generation of the Spanish line would have had at reclaiming the French succession: near certain for Philip V, still quite strong for Charles III, nowhere near so strong for Charles IV (whose own rights were nevertheless a topic of legal and diplomatic debate in 1789, as proven in the post above), and basically nonexistent for the petty and vicious Ferdinand VII, who had already won a low opinion for himself even among the Ultras. Louis XVIII's interpretation of the succession question in 1819 was based purely on likely political support, not legal right - and by acknowledging the strong claims that the earlier generations, at least, of the Spanish Bourbons would have advanced in the event of the extinction of the senior line, the King implicitly accepted that they had not been excluded by any legal mechanism.
Aside from explicitly rejecting the legal effect of prior renunciations, the Constitution of 1791 also said precisely nothing about future rights of succession being forfeited by a prince's residence abroad. Title III, Chapter II, Section 1, Article 7 specified that the King would be "deemed to have abdicated the throne" if he left the country without the leave of the Legislature. This expressed a requirement that the King should be, and remain, "French," but did not mean that all princes from collateral branches of the family domiciled in other realms would irrecoverably lose all future rights of succession, both for themselves and their issue. Indeed, as quoted above, the clauses on the succession which were agreed upon by the National Constituent Assembly were interpreted at the time as an explicit endorsement of the hereditary rights which Charles IV and his family still held to the French succession, however peripherally.
Charles IV and his sons all spent the better part of the Napoleonic era in France, where the former enjoyed some level of popularity among the citizens of Marseilles as a representative of the Bourbon family. After the frustration of their cause in Spain, the Count of Molina and his family settled in Bourges in 1839, with the apparent permission of Louis-Philippe's government, until they were encourage to move along in 1845. The Duke of Madrid maintained a residence in France until 1881, when he was expelled by the republican government for attending a (apparently forbidden) commemorative service. His son, Jacques, liked to say that he felt more French than Spanish (perhaps at least in part due to his maternal grandmother's blood) and resided in Paris after his retirement from the Russian Army, eventually dying there in 1931. That very same year Alfonso XIII himself returned to France after being expelled from Spain, and would live there until he too was "invited to leave" in 1934 by Gaston Doumergue's "National Union" government. The family of his eldest (surviving) son would later permanently recover French citizenship once the end of WWII and the laws of exile made that possible.
The Duke of Cadiz, former King-Consort of Spain, settled near Paris in 1868 and would remain there until his death three and a half decades later. The family of his younger brother, the Duke of Seville, also settled in France for a while after the latter's political disgrace in Spain, but would repatriate back to Spain by the early 20th century. The Count of Caserta and his family settled in France, where Prince Rainier and his branch would remain. The Roccaguglielma branch of the Two Sicilies family remained in France until its extinction in 1967. And of course, Robert I of Parma inherited the magnificent Chateau de Chambord from his maternal uncle and moved his large family around his many properties, including those in France. It was Robert who explained to his young daughter Zita that their family were "French princes, who reigned in Italy." Most of his sons from his second marriage remained in France, including Sixte (author of the landmark thesis, Le traite d'Utrecht et les lois fondamentales du royaume) and Xavier, whose own younger son Sixte-Henri still lives in France where he is an enthusiastic cheerleader for the far right.
The expressed requirement for the King to be "French" dates back to the late 16th century, when the Paris Parlement issued the famous "Arret Lamaistre" of 1593, mandating that the King must be both French and Catholic. This edict was issued by that body in large part to nullify its prior willingness (whilst under the control of the Catholic League and Spanish troops) to recognize the Infanta Isabel as France's "lawful sovereign." The stated purpose of the Arret was to nullify any treaty that might call to the throne of France a foreign prince, "as done to the prejudice of the Salic Law and other fundamental laws of the state." Thus, the Salic Law itself was upheld as both the overriding principle of the succession, and the best guarantee of France's own continued independence.
But the Arret of course also clearly specified that the King must be Catholic. Unlike the nationality requirement, this was not the first time that the Catholicity requirement had been codified in law - the Estates General of 1588 had approved the requirement (contained in the "Edict of Union" of that same year) for a Catholic succession. Even after King Henri III mended fences with Henri de Navarre and accepted the latter as his successor, he calibrated this with expressed hope and expectation that Henri de Navarre would soon convert to Catholicism. Yet Henri IV became King in 1589, still without having converted - he only belatedly converted in 1593, at which time he was finally crowned and his rule was accepted by the majority of the nation, which had been rent by civil war in the meantime. Moreover, until the birth of the future Louis XIII in 1601, Henri IV's heir-presumptive was the young Henri (II), Prince de Conde, who was the son and grandson of Huguenots, and remained a Huguenot himself until 1596. Yet his position in the line of succession was not prejudiced, and his descendants remained in the line of succession until their extinction in 1830.
What this suggests is that there are two important distinctions that need to be drawn here: 1) actual possession of the throne versus future rights of succession to the same; and 2) the distinction between "immutable" characteristics such as the order of birth, and "mutable" traits such as national residence or religious confession. I believe that "mutable" requirements such as nationality or religion could be corrected once the lineal male-line heir via primogeniture had been identified, as proven in the case of Henri IV. I believe that although the Salic Law was the overriding consideration in determining who was the heir, this legal right could only be "consummated" by the legitimate King's conformance to the requirements prescribed by the nation: French nationality, confession of the Catholic faith, and (much later, after 1791) acceptance of constitutional government.
The oft-cited "droit d'aubaine" related to property inheritance and there is nothing to suggest that its terms were ever applied to the royal succession (a matter governed by the fundamental laws of the kingdom, not by ordinary civil law). In fact on August 22, 1573, we have a very strong statement by King Charles IX which would explicitly stated that the rights of princes of the blood were conserved by them whether or not they happened to be absent and residing outside the kingdom, "as if they were native and national," and "notwithstanding the ordinances of the kingdom which, rendering foreigners incapable of any succession, strike them at death with the droit d'aubaine." This declaration drew a very stark contrast between the maintenance of dynastic rights with the royal line on the one hand, and the regular ordinances of the kingdom which governed civil inheritances.
By the late 16th century, in fact, the "droit d'aubaine" was already steadily declining in application. It had already been waived with respect to residents in certain neighboring territories over which the French king claimed some sort of historical right: Flanders, Milan, the Franche-Comte, Navarre, Bearn, the County of Savoy, Geneva, etc. Throughout the course of the 17th and 18th centuries the list of exempted realms steadily grew via treaties: Spain was exempted in 1761, as a component of the Third Bourbon Family Pact. Finally the "droit d'aubaine" was abolished outright in 1790, shortly after feudalism itself.
What we see, in tandem with this, is a developing understanding of French nationality which can be claimed either by birth on French soil or birth to a French family abroad. Peter Sahlins' monograph "Unnaturally French: Foreign Citizens in the Old Regime and After" chronicles the development of nationality and naturalization in French law. He cites, in particular, two key legal decisions in 1576 and in 1694 for expanding the definition of "French" to all those who, though born abroad, maintained an "esprit de retour" and intent to return to the homeland of their parents or even grandparents, circumstances allowing.
Per Sahlins, "[C]ase law concerning the children and grandchildren of Protestant refugees tended to diffuse the notion that French citizenship, as the capacity to inherit property, could be extended both to emigrants who returned to the kingdom to claim inheritances and to children born of French parents abroad who returned to reside in the kingdom" (pg 61). Further, "For the jurists, this 'law of domicile' (ius domicilium) dovetailed with an oft-cited "spirit of return" (esprit de retour) inherited across generations whose proof was found in the simple desire to reside in the kingdom. This spirit of return could be actualized by children or even grandchildren who, although born abroad, established their residence in France - and the spirit of return could be invoked even in cases where parents themselves had abandoned the idea of returning to France, having taken letters of naturalization abroad. In a general principle elaborated by the jurisconsult Francois Tronchet throughout his three decades of legal practice before the French Revolution, fathers could not deny their offspring the quality of a Frenchman" (pp 61-62).
I do not believe that we can credibly argue that the "esprit de retour" was ever lost by the Spanish Bourbons, as long as they considered themselves both legally capable and willing to return to France in the event that the extinction of the genealogically-senior line brought their own line forward.
I am not clear why you say the Spanish line was not considered French dynasts. In the convention of Aranjuez of 1760 and the family of pact of 1761 there was an emphasis on the mutuality of the branches, with the French text in the convention describing the Spanish princes as "princes du Sang d'Espagne" (not actually A Spanish title) and the mutuality of the awards of the Orders of the Saint Esprit, Golden Fleece and San Gennaro.
In the debate on the succession to the crown on 15 Sep 1789 in the National Assembly, the final vote decided that "The crown is hereditary from male to male, by order of primogeniture, with the absolute exclusion of women and their descendants, without anything prejudged by the effect of renunciations." The Spanish Ambassador, the Count of Fernan Nuñez wrote to the Spanish Prime Minister, the Count of Floridablanca, that same date: “All the clergy and the major part of the nobility also of the Third Estate has pronounced for the resolution favourable to the House of Spain… by 698 votes to 265 the majority had concluded the question in a sense again most advantageous for us which was not the situation before, because this vote shows the whole country as doubtful and subject to revision a renunciation which had been regarded as complete and irrevocable (sic)". In 1791 the Assembly drew up the first codified Constitution, which in Title III, Chapter II, article I: "The Kingship is indivisible, and delegated hereditarily to the reigning dynasty from male to male, by order of primogeniture, with the permanent exclusion of women and their descendants. (Nothing is prejudged by the effect of renunciations in the dynasty actually reigning)]". Mme Elizabeth (the King’s sister) in a letter to the Marquise de Bombelles, 15 Sep 1791, wrote that some deputies in the National Assembly had wanted to exclude the Spanish branch and that the séance was stormy and two days were lost.
When Louis-Philippe himself discussed this in his memoirs published in 1803 (when the restoration was still a dozen years away), he wrote: “When it ruled the succession to the crown from male to male by order of primogeniture it added (I can say without any pretext) without intending any prejudice in regard to the renunciations, it was with one end, to return to the branch of Spain to the detriment of ourselves and in contempt of the treaties and the solemnity of the renunciations, a means of reclaiming their right of inheritance to the Crown of France and by that to diminish the importance of my father, in making the introduction of a branch so numerous as that of Spain, between the crown and ourselves.” It is worth noting that while for Mme Elizabeth this debate was about a failed attempt at depriving the Spanish branch of their rights, for the Duke of Orléans it was about depriving his own branch of theirs.
It's not just the concept of legal nationality (Luis Alfonso's French nationality is through his paternal grandmother but not through his paternal grandfather). It's about being considered to be a French dynast. As i stated in the early reign of Louis XV it was seen as normal had something happened to him that his uncle Felipe V would leave the throne of Spain to become King of France and Navarre. Later in the 18th century Felipe's sons and grandsons however were never seen or listed as potential candidates for the throne of France. They were no longer considered as heirs.
The division of the Legitimists and Orleanists is logical up until the death of Henri V/count of Chambord. Just like the Carlists movement is Spain remained logical until the heir became the reigning king of Spain.
Keeping up a division out of resentment is a bad idea and in that Luis-Alfonso and Carlos Xavier both need to realise their claims are futile and unhelpful. Both only claim on the basis of resenting supporters unwilling to accept that their supported line has ended and the rival claimant has ended up outliving their rival.
Even if you were to consider the Spanish Borbons as heirs to the throne of France (and i don't) it is inconceivable to argue that King Alfonso XIII/Alphonse I would have deemed the marriage of his second son to Emanuelle Dampierre unequal for the Spanish succession but equal for the French succession. Had he thought so the title of Duke of Segovia would not have been needed for he could have styled his second son Dauphin de France and his new daughter-in-law Dauphine.
He did not but made them Duke and Duchess of Segovia and had his son renounce his right to the throne (of Spain as Alfonso himself did apparently not consider himself King of France, had he done so it would have been thrones).
Yes Luis Alfonso represents the senior genealogical line of the House of Bourbon (excluding the Bussets as a bastard line) but he represents a non-dynastic line. The oldest dynastic line is that of Juan-Carlos and Felipe they reign in Spain, junior branches represent various Italian dominions and actually reign as Nassau's in Luxembourg. Another junior branch presents the claimants to the thrones of France and Brazil.
That is partly true; the question of nationality is in a way relevant not only to the succession to the throne, but other successions, but not necessarily as a barrier to succession. This was also connected to the issue of feudal fealty, with several major fiefs of the crown (Aquitaine, Burgundy, Normandy, etc) being held by foreign sovereigns, they could still hold these, but only paying homage for their duchy and not as subjects. The Angevin Kings of Naples and the Courtenay Latin Emperors of Byzantium never lost their French rights, despite ruling far off kingdoms. "Foreignness" was not really the reason for disqualification and was certainly eventually trumped by male primogeniture, which was established for the first several Capetian monarchs by the reigning king having his son crowned in the father's lifetime. This was a sensible precaution when even hereditary succession was not necessarily the certain grounds for succession - the promise of fealty on the part of the nobles who would have to accept the heir as their future ruler was far more important in the 9th-12th centuries. Hence Duke Robert of Normandy, not having any other male heir, insured his 7 year old son William's succession by having the Norman nobles swear fealty to him, despite his bastardy (it helped that Robert's uncle was the immensely powerful Archbishop of Rouen). William's own claim to the English crown as certainly not based on hereditary right. So by having the eldest son crowned, and thereby obtaining the fealty of the great nobles, the male line succession was established and then became the sole criteria. When the infant King John I of France died with only a surviving sister, he was the 13th Capetian king of France, so the system of male succession had become established and defensible (even though challenged a few years later by Edward III of England) and most importantly was upheld by the Estates General. The later objection to Edward's candidacy, however, was nothing to do with his foreign nationality (although it was certainly a political objection) but was justified on the basis that male primogeniture had been established as a fundamental principle - the next Kings after Jean I were his father's younger brothers, with Charles IV who died in 1328 leaving no issue. While Charles IV's nearest relation was Edward III, the throne instead passed to Philippe of Valois (admitted there was a 100 years war!). Charles VI of France excluded his own son by claiming he was illegitimate and adopted Henry V. As the latter pre-deceased Charles by two months in August 1422, on Charles's death Henry VI of England was proclaimed King. It was not until 1431, however, that Henry was crowned in Notre Dame, two years after Charles VII had been crowned in Rheims, thanks to Joan of Arc. The English usurpation, however, was illegal because neither Henry V or VI were male line Capetians (and of course not the primogeniture heirs). When Henri III of France became King of Poland, however, letters patent were issued affirming his continuing right to the French throne, and the proponents of the French nationality requirement argue that this was both necessary and sufficient to negate the effects of his foreign nationality. But equally it demonstrates that the fact of Henri IV's father being supposedly French and him being a French peer, was not the reason that foreign nationality was overlooked - after all Henri III's father was king of France and he too was a peer. So the argument here below that Henri IV's succession despite being a foreign monarch was possible because his father was French is insufficient in the light of the letters patent for Henri III. In fact the objection to Henri III's succession by the Catholic League was on two fold grounds - he was a foreign king and he was Protestant. Henri III, however, lying on his death bed after the attempted assassination (which killed him two weeks later) summoned Henri IV of Navarre and made it clear before the entire court that he must succeed, despite any other factor, because he was the primogeniture heir - although he was 13 generations removed from male descent from a King (Saint Louis). In 1660, when Louis XIV tried to exclude the most junior Capetian line, the Courtenay's, because they lived as impoverished provincial nobility, and instead name the Lorraine as heirs after him, his brother and the Conde-Contis (as there were no other legitimate male lines aside from the Courtenays), in the Treaty of Montmartre, the Parlement of Paris refused to register the treaty and it was never effected. In 1713, with Philip V off in Spain, his other grandsons dead and only one direct heir in the person of the future Louis XV, the Duke of Orleans having just one ten year old son, the next in line the Duc de Bourbon only married in 1713 (and he had no children by his first wife), while Bourbon's brother, the Count de Charolais, was just 12 years old in 1713 (he never married) and the next and last in line, the Prince de Conti, also only married in 1713, the future of the house was at risk. So with the possible extinction of the male line, Louis XIV declared his legitimated sons heirs after the Prince de Conti and enforced this in the Paris Parlement by a lit de justice(an antiquated enforcement procedure) over the strenuous objections of the Dukes of Orleans and Bourbon, and also from Philippe V. When this edict was annulled in 1717, the decree was emphatic in upholding the principle of both primogeniture and legitimacy. When Louis XV was dangerously ill in the 1720s, Philip of Spain prepared his return, abdicating the Spanish throne to his son Luis I - I have published previously a long "opinion" issued by the French ministry of Foreign Affairs in 1730 stating clearly that the renunciations of 1712-13 were void because of the reciprocity between those of Philip and the Dukes of Orleans and Berry and in the latter 2 cases with the Emperor - who, however, refused to renounce and when he finally signed his renunciation the dukes of Orleans and Berry were already dead, so as their renunciations had not been validated by the Emperors, they lost any validity with their deaths, which in turn meant any validity that the renunciation of Philip might have had also lost its validity. This principle was upheld by the Assemble Nationale (formed from the Estates General) in 1789, and in 1846 by both the French and Spanish governments which agreed that the renunciations were void (a position disputed by Palmerston). The question of nationality arose in 1908 with Gaston Comte d'Eu's demand to be reintegrated into the House of France which the Duke of Orleans refused, then made a compromise by which the Orleans-Bragança line would supposedly recover their rights but after the other later Orleans lines (now extinct anyway) - whether the Duke of Orleans had any authority in the matter is another issue, but either the O-B line was able to succeed or it was not, and changing the order of succession was far beyond the capacity even of a reigning king. I recently had the opportunity reading Gaston's letters to his eldest son in which he hotly disputed the Duke of Orleans's interpretation of the agreement, which is in any case now irrelevant. The so-called Orleans-Borbon line of the Dukes of Galliera claims the title of Royal Highness as French dynasts (which they surely must be if nationality is not a bar).
The reality is that concepts of nationality have become far more open as it is possible to have dual nationality (as in the case of Louis-Alphonse, Duke of Anjou). It was actually Napoleon who imposed a particularly strict interpretation of the effects of nationality - so, for example, when the Duke of Leuchtenberg became Russian he lost his right to succeed to the Duchy of Navarre (nothing to do with the kingdom) and its vast estate, which reverted to the French state. A French Prince of the Napoleonic dynasty had to be a French citizen, and one had to be French to succeed to a French majorat. But why should nationality matter today, when it is possible to hold joint citizenship and is it a bar to future generations or does it only ban a foreigner from succeeding as long as he is only foreign?
It seems to have gained a special exemption: if the French heir that succeeds a throne elsewhere himself becomes the king of France than it's all right. It also has to do with being French by birth and of lineage.
Had Louis XV died young than there is little doubt his uncle Felipe V would have been able to return to France to reign there. Probably leaving one of his younger sons to succeed him in Spain.
The Borbons of Spain were no longer French by birth from the sons of Felipe V onwards and as such not eligible to succeed. Not unlike the rules in Portugal.
Gaston could have fitted in had he become the head of the dynasty after his return. He did not and his sons were born as Brazilian nationals not Frenchmen so no longer able to resurrect a claim to the French succession.
The same thing applies to the Spanish and Italian Borbons. After Felipe V they were not French so could not transmit French rights.
The entire French succession laws have always been to prevent a foreign dynasty or foreign rulers to take over the French throne. That is why women were shut out (princesses married foreign rulers as the result of international diplomacy, by not giving them succession-rights they remained French but their heirs were foreigners).
Henri of Bourbon was able to succeed as Henri IV not because his mother was the first cousin of Henri II but because his father was a male line descendant of Saint Louis in an unbroken French line. Henri inherited his mother's kingdom of Navarre but was also French as the heir of his father's French dominions. He had been one of the figureheads of a French political party/lobby group.
The french succession law considered that any prince called to reign in a foreign country would loose his rights to the throne on the grounds of pérégrinité .
It happened with Felipe V (Bourbon) called to reign in Spain, and with Gaston, count of Eu, married to the Emperor of Brazil's daughter and heiress.
The cases of Felipe and Gaston are purely hypothetical. There was never a time when either was heir and was passed over.
There are, however, several examples in French history when a prince who reigned in a foreign country became heir. In every single one of those cases, the prince actually did succeed to the French throne and was not passed over.
In 1573 Henri, duc d'Orléans, younger brother and heir apparent of King Charles IX, was elected king of Poland. The following year Charles IX died and Henri succeeded as King Henri III.
In 1589 King Henri III died and was succeeded by his distant cousin Henri III, King of Navarre, as King Henri IV.
In 1420 the Treaty of Troyes was signed, affirming that the heir apparent of King Charles VI was King Henry V of England. Two years later Charles died and Henry succeeded (but not without opposition).
Pérégrinité is a theory when it comes to the French succession. Every time it has been put to the test it has been shown not to count.
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