Unequal Marriages in Spain: the Pragmática of 1776

Contents

Introduction

The law of succession to the Spanish throne is currently defined in the Constitution of Dec 27, 1978, article 57. A question that arises is the status of unequal marriages.  The reason is a royal decree (pragmática sancion) of 1776, promulgated by Carlos III, which has traditionally been taken to exclude the issue of unequal marriages from the throne.

Currently, the king married equally (his wife is the daughter of a king of Greece), but his three children are all married to non-royals, and all his grandchildren are issued from unequal marriages in the traditional sense.  Moreover, his two sisters married unequally, as did all his father's siblings (including his father's older brother Don Jaime, duke of Segovia, who had issue).  The problem, if there is one, thus arises fairly early in the succession list.

There are two commonly held positions on this question:

  • the Pragmática of 1776 ceased to apply at some point (usually said to be 1978), so that the issue of unequal marriages contracted before that date are excluded, but not after;
  • the Pragmática of 1776 is still in force, and the next in line after the king's children is the Infante Don Carlos, duke of Calabria, grandson of Alfonso XIII's sister the Infanta Maria.
I propose a third interpretation, that the Pragmática never applied to the succession to the throne (or at any rate not since Spain permanently became a constitutional monarchy in 1836).

Background

This section provides a brief historical overview of the Spanish monarchy, particularly from the point of view of its laws of succession.

Spain before constitutional monarchy

Before the 19th century, Spain was, like most European countries, a theoretically absolute monarchy, without a written constitution and few institutions or bodies counterbalancing the power of the sovereign.  The Cortes, which had arisen in the 13th c. in Castile, Leon, Catalonia, Valencia, Aragon, and Navarre, typically comprised representatives of the nobility, clergy, and boroughs, and negotiated with the king particularly on matters of taxation.  In Castile the Cortes progressively lost any real powers and ceased to meet after 1685; those of Catalonia ceased to function after the revolt of 1640, and those of Valencia and Aragon were merged with the Cortes of Castile after those kingdoms rebelled against Felipe V.

This does not mean that the sovereign was free to do anything he wanted.  In particular, certain matters such as the succession to the throne were in principle regulated by either written laws or long-standing custom; and, in the 18th century, the only occasion on which the Cortes continued to meet was to proclaim the heir to the throne as Prince of Asturias.

The Spanish crown normally passed by mixed or female succession, as in England, with priority to the eldest surviving son, and in the absence of any son, to the eldest daughter: in case the eldest son predeceased his father, his rights passed to his children who had priority over the deceased son's siblings (the principle of representation).  In Castile, this rule was written into the Siete Partidas, a compilation of laws drafted in the 1270s under the reign of Alfonso X el Sabio, and proclaimed the law of Castile and Leon in 1348 (see the text).  The existence of this written law did not prevent many difficulties with the succession to the crown of Castile: 

  1. One dispute arose between Alfonso de la Cerda, son of Alfonso X's eldest son Fernando who had predeceased his father in 1275, and Sancho, Alfonso X's second son.  In spite of Alfonso X's own rule, and in spite of the marriage treaty of 1269 between Alfonso and Blanche of France, which stipulated the principle of representation, popular pressure forced Alfonso to appoint his popular son Sancho as heir.  When Alfonso X had second thoughts, he was deposed by Sancho (1282).  The dispute lasted until 1308 when Alfonso de la Cerda renounced his claims. 
  2. Another arose in 1366 when Pedro I lost his throne to his illegitimate half-brother Enrique II; the dispute lasted until 1393 when Catherine of Lancaster, daughter of John of Gaunt and Pedro I's daughter Constanza, married Enrique II's grandson Enrique III. 
  3. A third dispute arose in 1468, when Enrique IV repudiated his daughter Juana "Beltraneja" as illegitimate and chose his sister Isabel as heir.  When Isabel married Ferdinand of Aragon without his consent in 1470, Enrique IV changed his mind and after his death a war broke out with Afonso V of Portugal who was betrothed to Juana.  The dispute ended in 179 when Juana renounced her rights.

In 1479, Isabel's husband Ferdinand succeeded to the crown of Aragon.  Therafter the two crowns remained united and followed a common destiny.  From the Catholic kings the crown of Spain passed to their daughter Juana and their eldest grandson Carlos I (emperor Charles V) of the Habsburg family, and then from father to son down to Carlos II who died in 1700.  With his death the Spanish branch of the Habsburgs was extinct in male line, and yet another succession crisis opened.  Carlos II left in his will all his dominions to his closest heir in female line, his nephew Louis son of Louis XIV of France, who renounced in favor of his younger son Philippe.  In spite of a Europe-wide conflict (1701-14) Philippe succeeded as Felipe V.

On May 10, 1713 Felipe V, with the approval of the newly merged Cortes of Castile, Aragon and Valencia, promulgated a reglamento which replaced the existing mixed succession with semi-Salic succession: only after extinction of all male lines issued from Felipe V could females inherit the throne.  This law was repealed in 1789 by Carlos IV upon his accession, again with the approval of the Cortes, but was not published at the time.

The Cortes, now called Cortes Generales del Reino, met only five times in the 18th century: in 1709 to proclaim Felipe's son Luis as heir; in 1713 to ratify the new law of succession; on 15 November 1724, after the death of Luis I; in 1760 to proclaim the future Carlos IV as heir; and in 1789 to proclaim the future Fernando VII as heir and ratify the repeal of the law of 1713.  Thus the Cortes, however symbolic they had become, continued to be intimately associated with the succession, whose legitimacy required their intervention.

Spain from 1812 to 1931

In the 19th century, Spain became a constitutional monarchy, although the process was far from smooth.

The end of the Old Regime came with the French invasion of 1808: by the treaty of Bayonne of 1808, Carlos IV and his son the prince of Asturias were forced to cede their rights to the crown of Spain to Napoleon, who in turn transferred them to his brother Joseph, until then king of Naples.  Joseph tried to rule from 1808 to 1813, but had to contend with a spontaneous rising supported by British troops.  A council of Regency, created while Carlos IV and Ferdinand remained prisoners in France, decided to call the Cortes in the southern city of Cadiz, outside French control.  There, while under siege by a French army, the so-called Cortes of Cadiz wrote a new constitution, promulgated in 1812: this was Spain's first constitution, and a very liberal one.  It contained clauses defining the law of succession

In 1814 the French were expelled from Spain and Ferdinand VII returned to the throne (the Cortes of Cadiz had recognized Carlos IV's abdication, but not that of Ferdinand VII); he immediately disowned the Cortes of Cadiz and, by a proclamation of May 4, 1814, annulled all of their decrees and promulgations.  In 1820, a pronunciamento led by colonel Riego forced Ferdinand VII to restore the 1812 constitution (March 9, 1820).   The Cortes met on July 9, 1820 and inaugurated the "Trienio liberal", which ended with a French invasion sponsored by the European powers at the Congress of Verona of 1822.  On October 1, 1823 Ferdinand VII revoked the 1812 constitution and restored his personal rule.

Ferdinand VII had married three times but was childless; his younger brother Carlos was known to be a virulent enemy of liberalism.  In December 1829 Ferdinand VII, widowed for the third time, married Maria Cristina of Two Sicilies who became quickly pregnant.  On March 31, Ferdinand VII published the decree repealing of the law of 1713 and restoring the law of Alfonso X.  His daughter Isabel born on October 10, 1830 (another daughter, Luisa Fernanda, was born in 1832).

At Ferdinand VII's death in 1833 Isabel II was proclaimed, under the regency of her mother; immediately Carlos contested and a civil war ensued (1833-39).  To secure support for her cause the regent found it necessary to restore the 1812 constitution (August 1836) and accept a new constitution promulgated on June 18, 1837.  This constitution also contained clauses defining the law of succession.

From 1837 to 1923, Spain was a constitutional monarchy, with two short interruptions, and many military coups.  The constitution of 1837 was replaced after its chief supporter, Baldomero Espartero, was ousted in a coup in 1843 by Prim, Serrano and Narváez.  The constitution of 1845, with its own clauses defining the law of succession, was in force until the Revolution of September 1868 which overthrew Isabel II.  The new government led by Juan Prim drafted a new constitution promulgated in 1870.  A king was chosen in the person of the duke of Aosta, Amadeo I (Nov 16 1870), but his reign saw Republican agitation and a new Carlist war, forcing him to abdicate on Feb 11, 1873.  A short-lived Republic ended on Dec. 29, 1874 with the return to Spain of Isabel II's son Alfonso XII.

In 1876 a new constitution, the last of this period and the longest-lived of Spain's history, was promulgated; it would remain in force until 1931 officially, although it practically ceased to function in 1923.  It, too, contained clauses defining the law of succession.

On November 25, 1885 Alfonso XII died, leaving two young daughters and a pregnant widow, who became regent and gave birth to a son, Alfonso XIII, on May 17, 1886.  The success of this difficult transition is sometimes ascribed to the "pacto del Pardo" between the two main political parties who alternated in power throughout the regency (1885-1902).  This period was one of relatively normal political life, but after the "Disaster of 1898" (the Spanish-American war) social and political agitation increased and the army's role grew.  The constitution gave the king important powers, leading him to involve himself more and more into politics.  His inability to form a stable government led Alfonso XIII to endorse the military coup of general Miguel Primo de Rivera.  After Primo de Rivera resigned in January 1930, the king spent too long trying to restore the constitution instead of immediately calling the Cortes, allowing opposition to the monarchy to solidify.  Municipal elections were finally called for April 1931 and resulted in big victories for Republican parties in the cities, something the king's government saw as a defeat.  The army refused to intervene (the so-called "negative pronunciamento") and Alfonso XIII gave in to the Republicans' demand by leaving Spain on April 14, 1931, without however abdicating.

Spain from 1931 to the present

The Republic was proclaimed the day Alfonso XIII left, and a constitution was promulgated in December 1931.  In July 1936, a military revolt erupted in Morocco and spread to Spain; a terrible civil war followed for three years, ending with the complete victory of the army led by General Franco.

The Franco regime (1939-75) did not have a single constitutional document, but a collection of fundamental laws passed over the years. A law of succession was approved by a referendum of July 26, 1947, and modified by an organic law of 10 Jan 1967, without substantially affecting the mechanism of succession.

Spain was defined to be a kingdom (Reino) without a king, but with a Head of State, don Francisco Franco.  The law provided for his succession.  Franco could, at any time, propose to the Cortes his successor as either king or regent; he could also propose at any time the cancellation of a prior appointment as successor. The king or regent had to be a male catholic Spaniard aged 30 or more, loyal to the principles of Franquism, and had to take an oath to the fundamental laws. Should Franco die without having named an heir, the Regency council should meet with the cabinet and the council of the Realm to propose to the Cortes a person of royal descent (estirpe regia) as king (not regent). Curiously, the restriction that the king be chosen from a royal family does not seem to have been placed on Franco himself. Also, which royal family is not specified. After the accession of a king, the traditional order of succession was to be established, although women could not reign but only transmit succession rights; and any successor had to meet the same requirements of age, religion, nationality, loyalty and oath-taking.  Renunciations, cessions of rights before accession, abdications, marriages of the king or his heir had to be approved by the Cortes.  The Head of State could also propose to the Cortes the exclusion of those persons incapable of reigning or who deserved to lose their rights.

Pursuant to these laws, Franco designated as heir Don Juan Carlos, grandson of Alfonso XIII, on July 22, 1969, with the title of "Prince of Spain".  The heir was male, Catholic, aged over 30 as required.  He was also of royal descent, which was not a requirement on Franco's choice.  He was not, however, the heir under the 1876 constitution.  Alfonso XIII had gone in exile in Rome.  He had three sons: Alfonso, prince of Asturias; the Infante Jaime, duke of Segovia, and the Infante Juan.  Alfonso renounced his rights in a letter to his father dated June 11, 1933; he married unequally and without his father's approval 10 days later; he would die childless in 1938.  On the day of that marriage, June 21, 1933, Jaime also renounced his rights.  He married unequally, but with his father's approval, on March 4, 1935.  He had two sons from that marriage, Alfonso (1936-89, created duke of Cadiz in 1972) and Gonzalo (1937-2000); Alfonso in turn had two sons Francisco (1972-1984) and Luis Alfonso (born 1974).

When Alfonso XIII was nearing death, he abdicated in favor of his third son the Infante Don Juan, count of Barcelona, on Jan 15, 1941. Don Juan married equally with a princess of the Two Sicilies and had one son, Don Juan Carlos, and two daughters.  When Franco chose Don Juan Carlos as heir in 1969, then, he was not choosing the legitimate heir of the historical dynasty.

Franco died on November 20, 1975, and the law of succession was strictly applied: the Regency Council met the same day and called the Cortes, which convened two days later to receive the prescribed oath from Franco's heir, after which he was proclaimed as King of Spain (November 22, 1975).  During the transition period that followed, the existing Cortes were persuaded to pass a law of political reform (November 1976) that paved the way for the peaceful and free election of a democratic Cortes in June 1977. A new constitution was drafted and approved by referendum in December 1978; it is in force today.

The law of succession under the constitutions

The following summarizes the clauses of the various succession laws that have been defined in the successive constitutions (1812-14, 1820-23, 1836-69, 1870-73, 1876-1931, 1978 to present).  In each case, the title is linked to the original Spanish text.

1812

  • The sovereign is Ferdinand VII (art. 179)
  • The succession follows the normal order of primogeniture and representation by line of legitimate descendants male and female (art. 174), preferring the senior line over the junior line; within line, closer degree over further degree; within degree, male over female; within sex, older over younger. (art. 176)
  • No one can be king who is not born legitimate (art. 175)
  • The son or daughter of the king's first-born son who predeceased his father comes before his uncles and succeeds to his grandfather by right of representation (art. 177)
  • As long as the line in which the succession operates is not extinct, the next line does not enter (art. 178)
  • After Ferdinand VII his legitimate issue male and female succeeds, then his siblings and those of his father (Carlos IV), male and female, and their issue, according to the prescribed order (art. 180)
  • The Cortes shall exclude by a law those persons incapable of ruling or who have done something to deserve losing their rights (art 181)
  • Should these lines be all extinct the Cortes shall decide, always respecting the present rules of succession (art. 182)
  • A female sovereign or heir cannot marry without consent of the Cortes, and if she does she is presumed to have abdicated (art. 183)
  • The king cannot abdicate cede, renounce or transfer his rights; he cannot abdicate in favor of his heir without consent of the Cortes; he must seek approval of the Cortes before marrying and is presumed to have abdicated if he doesn't (art. 172)

1837

  • The sovereign is Isabel II (art. 50)
  • The succession follows the normal order of primogeniture and representation, preferring the senior line over the junior line; within line, closer degree over further degree; within degree, male over female; within sex, older over younger. (art. 51)
  • After Isabel II and her issue come her sister and the siblings of her father (Fernando VII) male and female, unless excluded (art. 52)
  • Should these lines be all extinct the Cortes shall decide (art. 53)
  • The Cortes shall exclude by a law those persons incapable of ruling or who have done something to deserve losing their rights (art 54)
  • The sovereign needs to be authorized by a specific law in order to marry, to approve the marriage of  a subject with succession rights, or to abdicate in favor of his heir (art. 48)

1845

  • The sovereign is Isabel II (art. 49)
  • The succession follows the normal order of primogeniture and representation, preferring the senior line over the junior line; within line, closer degree over further degree; within degree, male over female; within sex, older over younger. (art. 50)
  • After Isabel II and her issue come her sister and the siblings of her father (Fernando VII) male and female, unless excluded (art. 51)
  • Should these lines be all extinct the Cortes shall decide (art. 52)
  • Any doubt on a matter of fact or law in the succession is resolved by a law (art. 53)
  • those persons incapable of ruling or who have done something to deserve losing their rights shall be excluded by a law (art 54)
  • The sovereign needs to be authorized by a specific law in order to abdicate in favor of his heir (art. 46)
  • The terms of marriage of the king or his heir must be approved in advance by a law of the Cortes.  Neither the king nor his heir can marry anyone excluded from the succession by law. (art. 47)

1870

  • The crown is hereditary. The succession follows the normal order of primogeniture and representation, preferring the senior line over the junior line; within line, closer degree over further degree; within degree, male over female; within sex, older over younger. (art. 77)
  • If the dynasty called to the throne becomes extinct the Cortes shall decide (art. 78)
  • The Cortes shall exclude by a law those persons incapable of ruling or who have done something to deserve losing their rights (art 80)
  • The sovereign needs to be authorized by a specific law in order to marry, to approve the marriage of  a subject with succession rights, or to abdicate (art. 74)

1876

  • The sovereign is Alfonso XII (art. 59)
  • The succession follows the normal order of primogeniture and representation, preferring the senior line over the junior line; within line, closer degree over further degree; within degree, male over female; within sex, older over younger. (art. 60)
  • After Alfonso XII and his legitimate issue come his sisters, his mother's sister, and the siblings of Fernando VII, unless excluded (art. 61)
  • Should these lines be all extinct the Cortes shall decide (art. 62)
  • Any doubt on a matter of fact or law in the succession is resolved by a law (art. 63)
  • those persons incapable of ruling or who have done something to deserve losing their rights shall be excluded by a law (art 64)
  • The sovereign needs to be authorized by a specific law in order to abdicate in favor of his heir (art. 55)
  • The terms of marriage of the king or his heir must be approved in advance by a law of the Cortes.  Neither the king nor his heir can marry anyone excluded from the succession by law. (art. 56)

1978

  • The crown of Spain is hereditary among the successors of SM Don Juan Carlos I, legitimate heir of the historical dynasty. The succession follows the normal order of primogeniture and representation, preferring the senior line over the junior line; within line, closer degree over further degree; within degree, male over female; within sex, older over younger (art. 57-1)
  • In case of extinction of all the lines called by law, the Cortes shall decide (art. 57-3)
  • Those who have succession rights and who marry against the express prohibition of the king and Cortes are excluded for themselves and their issue (art. 57-4)
  • Abdications, renunciations, and any doubt on a matter of fact or law in the succession is resolved by a law (art. 57-5)

Common characteristics

These six sets of succession rules have the following elements in common:

  • name of the current sovereign (except 1870)
  • rules of mixed succession
  • ordered list of people in whose issue the rules apply (except 1870, 1978)
  • the Cortes decide in case of extinction of all lines
  • the Cortes can exclude certain persons from the succession (except 1978)
  • doubts are resolved by the Cortes (except 1812)
  • some regulation of marriages, ranging from very strict (1837, 1870) to rather loose (1978)
  • king cannot abdicate without a law (except 1978) and can only do so for his heir (1812, 1837, 1845, 1876)

The constitution of 1870 has obvious peculiarities, due to the fact that it was written before a sovereign had been chosen to replace Isabel II.  Hence it names neither the current sovereign nor the other individuals called to the throne after him and his issue.  It also allows him to abdicate (with a law of the Cortes) and not necessarily in favor of his heir.

Considering together the six sets of succession rules, there appears to be in Spain a stable constitutional tradition concerning the law of succession.  All six rules (except the last, as will be discussed in the next section) are coherent and self-contained: they provide a starting point (the current sovereign), a clear method for determining the order of succession after that starting point, and what to do when the list of eligible claimants is exhausted.  Exceptions or modifications of the order are provided for (abdications, exclusions) but they require a law.  The matter of marriages by the sovereign, his heir, or other potential claimants are regulated, although there is a lot of variability in both the list of individuals who are subject to regulation (the king alone, the king and his heir if female, the king and his heir, all potential claimants who are subjects, all potential claimants) and the strength of the regulation (a specific law of the Cortes is required, prior approval of the Cortes is required, absence of an explicit prohibition is required).

Abdications, renunciations: the case of Don Jaime

The Spanish monarchy knows of abdications, and several have taken place:
  • Carlos I (emperor Charles V) abdicated in 1555 in favor of his eldest son Felipe II;
  • Louis de France, nephew of Carlos II, ceded his rights on Nov 11, 1700 to his younger son, as stipulated by the will of Carlos II, to avoid uniting the crowns of Spain and France;
  • Felipe V abdicated in favor of his son Luis on Jan 15, 1724 (after the death of Luis I later that year Felipe V returned to the throne)
  • Carlos IV abdicated on May 5, 1808 in Bayonne in favor of Ferdinand VII (strictly speaking, he ceded his rights to Napoleon, as did his son the prince of Asturias);
  • Isabel II abdicated on June 25, 1870 in Paris in favor of her son Alfonso XII;
  • Amadeo abdicated on Feb. 121, 1873 in Madrid, returning "the crown to the nation";
  • Alfonso XIII abdicated on Jan 15, 1941 in Rome in favor of his son the Infante Don Juan.
Renunciations are another matter.  Since none of the constitutions provided for the renunciation to the throne by anyone who did not have it, it is doubtful that such renunciations can have any validity.  This makes the case of Don Jaime rather difficult.  He renounced on June 21, 1933 (8 years before the death of his father and 5 years before the death of his eldest brother).  When his father died in 1941, after having abdicated in favor of his third son Don Juan, Don Jaime made no protest, and attended the funeral.  According to Patrick van Kerrebrouck: La Maison de Bourbon: 1256-1987 (Paris, 1987), pp. 312-3, he confirmed his renunciation on July 23, 1945 and June 17, 1947.  He rescinded his renunciation on Dec 6, 1949; declared himself grand-master of the Golden Fleece on March 1, 1963, took the title of duke of Madrid on May 3, 1964 and that of duke of Toledo on April 15, 1969.  He renounced his claims on July 19, 1969 at the behest of his eldest son don Alfonso, who attended the ceremony at which Don Juan Carlos was made prince of Spain and designated heir of Franco four days later.  In 1972, he seemed to change his mind since he tried to bestow the Golden Fleece on Franco, who declined it.

Peculiarities of the 1978 constitution

Although the present constitution borrows many elements from the earlier constitutions, there are interesting differences:

  • there are no clauses concerning abdication;
  • marriages are regulated differently: the clause is both broader (it applies to all those who have rights to the throne) and much weaker, since the requirement is negative (there must not be a prohibition by both king and Cortes on the marriage, but neither approval by king nor by Cortes is required);
  • the Cortes are not given the power to alter the line of succession by excluding anyone;
  • the current sovereign is not only named, he is also designated as "the legitimate heir to the historical dynasty" (a phrase without any precedent);
  • there is no list of individuals who are called with their issue after that of the current sovereign. 

This last difference is particularly perplexing.  In the earlier constitutions, a starting point was always given (Ferdinand VII, Isabel II, Alfonso XII), then an algorithm to order his descendants (the mixed succession rule), and finally a definite list of successors in whose lines the algorithm would continue to operate, and after which it ceased to operate:

  • after Ferdinand VII, his siblings and those of his father;
  • after Isabel II her sibling and those of her father;
  • after Alfonso XII his siblings and those of his mother and the siblings of Ferdinand VII (male only, probably, since "male and female" was specified in 1837 and 1845, but not in 1876). 

In each case, the list is perfectly logical, as it ascends the family tree of the current sovereign along the line from which he or she inherited the throne:

  • Ferdinand VII succeeded his father Carlos IV who succeeded his own father Carlos III, and so the children of Carlos IV and the children of Carlos III are listed;
  • likewise Isabel II succeeded her father, so the children of Ferdinand VII and the children of Carlos IV are listed (but not those of Carlos III);
  • but Alfonso XII succeeded his mother, so the children of his mother Isabel II and those of his mother's father Ferdinand VII are listed before those of Carlos IV; thus, the maternal cousins of Alfonso XII come before his paternal cousins (his father being descended from Carlos IV).  

In the current constitution, the crown is declared to be "hereditary among the successors of Juan Carlos", a group of people that no doubt includes his own issue, but nothing more can be said with any certainty.  In particular, while it is to be presumed that any line of succession beyond his issue would be determined by going up his paternal line, through Don Juan and Alfonso XIII, that is left unsaid.

Furthermore, all previous constitutions specified that those excluded by law were in fact excluded, thus validating any law then on the books excluding certain individuals, and implicitly allowing anyone not excluded by law. The current constitution makes no mention of exclusions by law or otherwise.

The phrase "hereditary among the successors" is itself rather odd.  "Successors" is not the same word as "descendants": it is potentially a larger group of people than just the descendants of Juan Carlos.  But, lacking what all other constitutions had, a list of other potential successors, it is difficult to apply determine to whom the succession rights would pass, and in which direction and how far  up the family tree one should go.  Ultimately, then, the phrase is nothing but a tautology.

The pragmática of 1776

What does it say?

For such a frequently cited text, its actual contents seem to be widely unknown (see the full text).

The pragmática of March 23, 1776 is an important piece of legislation, but it is primarily (if not solely) concerned with private law.  The main purpose of the legislation is to subject the marriage all individuals under the age of 25 to the consent of their parents.   It was later modified by a law of June 20, 1862 and then largely replaced by articles 45 to 50 of the Civil Code of 1889.

The main provisions of the pragmática, which contains 19 articles, are to balance the requirement of parental consent, imposed on all classes of society ("from the highest classes of the state, without exception, to the most common classes of the people") and the freedom to enter into matrimony, the conflicting interests of parents and children.  Thus, while the requirement is imposed, denial of consent must be motivated and children have recourse to the courts when it is not.  Those who enter into marriages without the required consent are deprived of all rights of inheritance, are excluded from the succession to all entails (vínculos, mayorazgos) and can be disinherited by their parents for all freely disposable estates (bienes libres).  This last rule made its way into the law of Louisiana (ruled by Spain when the Pragmática was promulgated) and remains to this day in the Louisiana Civil Code, article 1621.  The importance of the pragmática for the social and family history of 19th c. Latin America has been the subject of much recent research.

Articles 11-13 contain special provisions for infantes, grandees, and their heirs, subjecting them  to the obligation of securing royal approval for their marriages "to preserve the custom and obligation of giving account to His Majesty and the kings his successors of the marriages they or their sons and heirs intend to contract"; and if any should fail to fulfill this obligation, and marry without royal permission, they and their descendants are ipso facto incapable of enjoying the titles, honors and estates held from the Crown (article 11).  But since there may be rare instances of such grave circumstances that the marriage must take place, even with a person of unequal rank, when this happens to those who must request the royal permission , the king retains the power to grant it, but even in such cases the civil effects of the Pragmática apply and the unequal husband or wife remains deprived of titles, honors and privileges granted by the laws of this kingdom,  and  the issue of such marriage shall not succeed to the dignities, honors, entails and estates held from the Crown, which shall pass to the next in the line of succession, nor shall those descendants use the name and arms of the house from whose succession they are excluded but they shall bear the name and arms of the unequal parent; but they shall be able to inherit the free estates or alleuds (bienes libres) (article 12).  The dispositions apply to those families with succession rights to grandezas and titles no matter how removed (article 13).

The pragmática was modified several times; as far as articles 11-12 are concerned, the one relevant modification is in the pragmática of 10 Apr 1803, which extended the prohibition on marriage without royal consent to all "royal persons" (Persones reales) and also specified that consent or refusal would be granted in each case "with the rules and conditions suitable for the circumstances".

How long has it remained in force?

Articles 11-12 of the pragmática received immediate application. The Infante Luis, youngest brother of king Carlos III, was 8th in line to the throne after the king's sons (the prince of Asturias, future Carlos IV; the king of Two Sicilies and his son; the infantes Gabriel and Antonio) the king's nephew the duke of Parma and his son the hereditary prince of Parma.  Luis had led a very dissipated life, and the king decided that it was necessary to coerce him into matrimony, but  given the Infante's past behavior there was no hope of arranging a marriage with a person of royal birth.  The  marriage of an infante with a commoner was unprecedented in modern times, and some decision had to be made regarding the status of this extraordinary household.  Hence the need to both allow an exception to the prohibition on unequal marriages (article 13) but maintain royal control over the marriages of the princes and high nobility. 

A month after the new law was published, the Infante Luis sollicited and received permission to marry, with María Teresia Vallabriga.  Thus, although the "escape" clause of article 12 was indeed motivated by that planned unequal marriage, it can hardly be argued that this was the case of the pragmática itself, a law prohibiting unequal marriages. 

In application of the new law, his children did not bear the name of Borbón.  However, by decree of 4 Aug 1799, they were restored to their father's name and arms, given the Grandeza of first class, and recognized as part of the royal family; this, no doubt, as a consequence of the marriage of Luis's daughter María Teresa with Godoy in 1797.

The pragmática of 1776 was included in the Novisima Recopilacion, a compendium of laws in force modelled after the 16th c. Recopilacion.  Although the compilers did not explicitly resolve contradictions between the many decrees they included, its presence nevertheless indicates that it was still in force.

Three royal decrees, in 1847, 1848, and 1855, make explicit reference to the pragmática of 1776, on the occasion of the unauthorized and unequal marriages of two infantas, first cousins of the queen Isabel II.  Pursuant to the clauses of the pragmática, the decrees deprive the infantas of their titles, deny any rank to their spouses, and prohibit the issue from using the name or arms of the offending infantas and from inheriting their free estates.

On May 25, 1873, during the Republic, titles were abolished; they were restored on June 25, 1874, and a royal order of March 16, 1875 explicitly stated that the pragmática remained in force as far as titles of nobility were concerned.

In 1890 a Civil Code was promulgated, its article 1976 and last repealing all contrary laws.  However, the following year the Reglamento general de procedimiento administrativo delegated to the ministry of justice the handling of royal permissions for marriages of infantes and titled nobility.  It has been ruled by courts that article 1976 only applied to those matters which fell within the purview of the Civil code, and an argument can be made that the Civil code regulates marriages in general, but not royal and nobiliary titles; thus its provisions can only affect the general provisions of the pragmática, not those concerning royal and nobiliary titles.  Courts have recognized as early as 1893 the existence (and peculiar nature) of these royal permissions, noting for example that the lack of such is not an impediment to marriage, but may have consequences in other areas than pure private law (Tribunal supremo, 12 June 1891, in Coll. Legisl. Sentencias en materia civil, 1893, 1216-24). 

Finally, a royal order of Apr 14, 1915, in the form of a response to an inquiry, reiterates the applicability of the pragmática to the titled nobility, albeit noting the "deplorable frequency" with which permissions were not being sought.

It is thus abundantly clear that the pragmática remained in force throughout the 19th c. and the constitutional monarchy, as late as 1915 and most likely at least until 1931.

Was it applicable to the throne?

(1) the pragmática makes no mention whatsoever of the crown or the throne

It is primarily a regulation of civil marriages, requiring parental consent and severely limiting the legal effects of marriages contracted without it.  In effect, a marriage contracted without parental consent was legal in canon law (as long as the rules of canon law had been followed) but only partially valid in civil law.  In the case of Infantes and the titled nobility, an additional requirement was imposed, that of royal consent (a requirement that was already customary), by article 11; and unequal marriages, even with royal consent, had the same effect for the spouse and issue as an unauthorized marriage (article 12).

Nothing in here concerns the crown.  What the contravener (in the case of unauthorized marriage), his spouse and issue (in the case of unauthorized or unequal marriage) lose, is the ability to "enjoy the titles, honors and estates held from the crown" ("gozar los títulos, honores y bienes dimanados de la Corona", art. 11) or "the honors, titles, privileges conceded by the laws of this realm" ("los títulos, honores y prerogativas, que le conceden las leyes de estos Reynos") to the spouse and  the "dignities, honors, entails and estates held from the crown ("las tales dignidades, honores, vínculos ó bienes dimanados de la Corona")  as well as the name and arms for the descendants (article 12).  This legislation is about titles, honors, privileges, estates; not about the Crown or the Throne.

(2) the pragmática was never ratified or endorsed by the Cortes

Yet the historical summary above makes clear that before the constitutional era (19th c.) the Spanish succession was governed by solemn laws approved by the Cortes.  Indeed, in the time of the pragmática the only function left to the Cortes was to formally recognize the heir to the throne; the two changes made to the law of succession (in 1713 and in 1789) were both ratified by the Cortes.  It is difficult to believe that a decree of the king could have any effect on the succession when (1) it makes no mention of the succession and (2) it was never ratified by the Cortes.

(3) the constitutions make no mention of the pragmática or unequal marriages

When we move to the 19th century and Spain becomes a constitutional monarchy, the applicability of the pragmática to the throne seems even less plausible.

The constitution, as primary legal document, supersedes all others that might be contrary to it, by its own nature (the absence of any derogatory clause in all but the 1978 constitution can hardly be taken as meaningful: it is impossible for any of these constitutions to have operated as primary legal text if they did not implicitly have the power to revoke anything contrary).   Of course, constitutions do not spell out everything, and in some monarchies the written constitutions made no or only cursory mention of the succession, leaving it to be regulated by pre-existing laws (France in 1814, Prussia in 1850, Austria-Hungary in 1867).   But that is not the case in Spain.  On the contrary: the Spanish constitutions, beginning with that of 1812, have all carefully and fully spelled out the law of succession, in a completely self-contained manner. Who can succeed to the throne is very clearly laid out by the constitutions.  According to these rules, someone who marries unequally is not excluded from the succession.  The only way someone can be excluded from the succession is by a law of the Cortes.  How could a royal decree that precedes the constitutional era and was never even ratified by the Cortes supersede any of the constitutions that followed and deprive the Cortes of their exclusive power to exclude individuals from the throne?

 The Cortes of Cadiz carefully considered their history and their laws, and the clauses of their constitution embody the law of succession as it was understood, including, notably, the repeal of the law of 1713 and the return to mixed succession.  If they were aware of the unpublished decree of 1789, they surely would have been aware of the extent to which th pragmática of 1776 applied to the throne.  Either they thought it didn't, or else they did not see fit to include it in their formulation of the law of succession.  Either way, there is no mention of any rule such as that of the pragmática of 1776.  There is a rule to exclude persons from the succession (article 181): but they can only be excluded by the Cortes.

This constitutional provision for excluding persons from the succession is present in all other constitutions of the 19th century.  There are also rules governing marriages in the royal family.  So the general topics of exclusion from the succession and regulation of marriages are not absent from the constitutions, and it cannot be argued that they were overlooked, ignored, or left to be governed implicitly by the pragmática.  Nowhere is there any question of unequality of marriages in the constitutions.

I have argued above that the pragmática remained in force at least until the reign of Alfonso XIII.  That is true of the letter of the pragmática, as it applied to marriages in general (until the civil code of 1890) and to noble marriages in particular.  But there is no evidence that the pragmática was ever in force as far as the throne was concerned.

(4) No one has ever been excluded from the succession by the pragmática of 1776

This statement is obvious up to and including Alfonso XIII: no one was passed over for the throne in favor of another one by reason of an unequal or unauthorized marriage or descent from one.   No one was even officially declared to be so.  The instances of explicit application of the pragmática in a royal decree (Feb 8, 1847; May 12, 1848; June 28, 1848) concern titles, honors, privileges, estates (exactly as the pragmática says) but not the throne.  In fact, the two decrees of 1848 explicitly refer to the Cortes for what concerns the succession: which is perfectly logical, since the constitution gives the Cortes alone the power to exclude anyone from the succession.  Thus, the wording of those decrees makes clear what is already obvious from the texts themselves: the pragmática deprives unequal/unauthorized marriages of their normal effect concerning titles and estates, a law of the Cortes is necessary to deprive anyone of their rights to the crown.

The statement that no one has ever been excluded by the pragmática of 1776 might seem to be disproved in the 20th century.  That is not the case.  Alfonso XIII reigned de facto until April 12, 1931.  Juan Carlos I began to reign on November 22, 1975.  At that last date, Alfonso XIII was dead, and so were his eldest son Alfonso and his second son Jaime.  Jaime had two sons by an unequal marriage: if the pragmática applied, then the heir should have been Alfonso XIII's third son, who was still living in 1975 and had never renounced any of his rights.  Yet he did not succeed.  Hence Juan Carlos I did not come to the throne by virtue of the pragmática of 1776.

Rather, he became king by virtue of the law of succession of 1947, modified in 1967, by the choice of Franco to designate him as heir in 1969 pursuant to that law, and by the full application of the prescriptions of that law on November 20, 21, and 22, 1975.   It is not until May 14, 1977, that Don Juan renounced "the historical rights of the Spanish monarchy", and that Juan Carlos I, already king, "inherited in their fullness the dynastic rights as king of Spain".  Whether or not these statements are correct, it is not by virtue of that renunciation that Juan Carlos is king of Spain, but by virtue of Franco's choice made in 1969 and by-passing two persons (Don Jaime, who, even under the pragmática, never lost his rights, and Don Juan).

Still, if the pragmática never applied to the throne, how can Juan Carlos be "the legitimate heir of the historical dynasty" as stated by the constitution of 1978?  The answer is that the statement in the constitution, like any other statement in a constitution, cannot be said to be true or false by comparing it with some objective reality.  It is true, by definition, because the constitution defines what is the (legal) truth.  If the constitution says that he is the legitimate heir of the historical dynasty, then he is, whether or not he was before the constitution.   The mere statement that he is makes him so.

Conclusion

It seems that no one has ever proposed this solution to the problem, even though it seems rather obvious from the texts themselves.  If the pragmática was never applicable to the succession, there is no need to find out when it ceased to apply.  The marriages of  the king's children are dynastic and the king's grandchildren are all apt to succeed.

I cannot deny that, at least in the 20th century, there has been a widespread belief that the issue of unequal marriages were excluded from the throne.  The question then arises, what happens beyond the issue of Juan Carlos?  Here, the constitution's artful phrasing prevents any kind of crisis.  This is done in two ways:
  • the clause of art 57-1 making the throne hereditary among the successors of Juan Carlos but not specifying whose issue, after his own, is qualified, opens a doubt.
  • the clause of art 57-5 decides that any doubt is resolved by an organic law (law voted by the House of Representatives by an absolute majority)
Thus, should the issue of Juan Carlos become extinct, the question (if any arises) devolves to the Congress, which has the final word.

References

  • Aguilera Barchet, Bruno. 'Consideraciones sobre la pervivencia juridica del matrimonio morganático y sus repercusiones en la sucesión al trono español (o Sartorius si, Sartorius no).' Anuario de la Facultad de Derecho 1992 (10):169-188. [ISSN: 0213-988X]
  • Alonso, María Luz. 'El consentimiento para el matrimonio de los miembros de la Familia Real (Sobre la vigencia de la Pragmática de Carlos III de 1776)' Cuadernos de Historia del Derecho 1997 (4):61-89. [ISSN: 1133-7613]
  • Cierva, Ricardo de la. El Mito de la sangre real : razón de amor y razón de Estado : los "matrimonios desiguales" en España desde Alfonso X el Sabio a los Reyes Católicos, a Alfonso XIII y la Infanta Elena. Madrid : Editorial Fénix , 1995. [ISBN: 848878709X]
  • Garcia Mercadal y Garcia Loygorri, Fernando. 'El matrimonio de infantes en la Casa Real española.' Boletín de información del Ministerio de Justicia 1987 (1442): 3-15. [ISSN: 0211-4267]
  • -------. Los títulos y la heráldica de los Reyes de España : estudios de derecho dinástico. Barcelona: Bosch, 1995. [ISBN:8476763107 ]
  • Gómez Sánchez, Yolanda. “Matrimonios regios y sucesión a la Corona en la Constitución española de 1978”, en Antonio Torres del Moral y Yolanda Gómez Sánchez (Coord.) Estudios sobre la Monarquía. Madrid: UNED,1995, pp. 157-203.
  • Laina, JosÚ María. 'Licencia paterna y real permiso en la pragmatica Sancion de 1776.' Revista de Derecho Privado 1993, 77 (4): 355-378 [ISSN: 0034-7922]
  • Pau Vall, Francesc. 'La pragmática de Carlos III sobre los matrimonios desiguales. El articulo 57.4 de la Constitución y la monarquia parlamentaria.' Revista de la Cortes Generales 1993, (29):133-145. [ISSN: 0214-0519]
  • Tabeada y Fernández, María José . 'Los matrimonios morganáticos.' Hidalguia 181, Nov-Dec 1983.
  • Taboada Roca, Manuel. 'El articulo 57.4 de la constitución y sus antecedentes.' Anales de la Real Academia de Jurisprudencia y Legislación 1993 (23):15-70 [ISSN: 0210-296X]
  • Voltes, Pedro. 'La Real Pragmatica de 1776.' Historia 16 1997, 21 (249): 88-91 [ISSN: 0210-6353]

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