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:
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:
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.
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.
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 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.
These six sets of succession rules have the following elements in common:
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).
Although the present constitution borrows many elements from the earlier constitutions, there are interesting differences:
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:
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:
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.
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".
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.
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.
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.
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.
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.