No. 242.
Mr. Cushing to Mr. Fish.
Madrid, December 2, 1875. (Received December 22.)
Sir: The civil war existing in Spain turns partly on a dispute of dynasty and partly on one of principles of government. The dynastic contest involves questions of law only, none of fact. According to the ancient laws of Spain and the practice from the time of the formation of the monarchies of Castile and Leon, (but not Aragon,) females succeeded to the crown in default of direct male succession and in preference to collaterals of the male sex.
Such also was, and remains to this day, the law of succession as to property and as to rank, including grandeeship and nobiliary titles. Some of the most distinguished sovereigns of Castile and Leon had been queens, such as Berenguela, and the first Isabel, by whose marriage with Fernando of Aragon the different kingdoms were connected together to constitute Spain. And the competitor of Isabel was a female, Doña Juana, surnamed La Beltraneja, the putative daughter of her brother and predecessor, Don Enrique IV.
On the death of Fernando and Isabel, the crown passed without opposition to their daughter Juana, and through her to her son, Charles I, (V of Germany.) Regular descent through direct male heirs followed in the persons of Philip II, III, and IV, and Charles II.
On the approach of the death of Charles II without issue, right of succession through females was asserted by each of the six pretenders to the crown: the Dauphin of France, the Prince Elector of Bavaria, the Duke of Orleans, the Duke of Savoy, the King of Portugal, and the Emperor of Germany.
Louis XIV of France married Maria Teresa, the eldest daughter of Philip IV and sister of Charles II, and the Dauphin was the right heir of Charles II, according to the public law of Castile, he being nearest in kinship to Charles II.
The Elector of Bavaria claimed through his mother, the second daughter of Philip IV and sister of the mother of the Dauphin; Leopold, of Austria, through his mother, daughter of Philip III; the Duke of Orleans through his mother, Anne, of Austria, wife of Louis XII and eldest daughter of Philip III; Victor Amedeo, of Savoy, as representing Catalina, daughter of Philip II; and the King of Portugal, as descended from a younger daughter of Isabel the Catholic. According to the rule of seeking the next of kin to the last possessor, the claim of the Dauphin was clearly the best, that of Victor Amedeo the next best, and next that of Leopold of Austria.
But political considerations narrowed down the question to the Dauphin and the Emperor Leopold, each of whom, being excluded by treaties which forbade the union of their respective countries with Spain, evaded this difficulty by renouncing in favor of sons; and thereupon the testament of Charles II decided the question against Charles of Austria, and in favor of Philip of Anjou.
Spain was divided in opinion, Castile and its dependencies favoring Philip; Aragon and its dependencies, Charles; but after a long and [Page 443] bloody war between all the chief European powers, fought in Spain herself and constituting one of the epochs of her decadence, France prevailed to make Philip of Anjou Philip V of Spain.
During the very time when the plenipotentiaries of Utrecht were occupied in the negotiations which terminated the war of succession, (1713,) Philip V was arranging in the Cortes of Madrid the succession of the crown so as to consummate the permanent separation of Spain and France. To this end he declared that in default of heirs of his descendants the crown shall devolve on the house of Savoy in representation of Doña Catalina, daughter of Philip II.
No other example exists in history of a disputed succession so involving a settled principle as in these incidents of the accession of Philip V.
All the competitors for the crown, including Philip himself, claimed through females, and that line of descent was provided for the possible contingency of the failure of heirs of his body.
Nevertheless one of his earliest acts was to repeal the laws of Spain respecting succession and to introduce instead the Salic law of France, in the form of an auto acordado or prerogative act, adopted in such form in consequence of the opposition of his counselors and of the Cortes, which act concludes thus: “I command that from now henceforth the succession in these kingdoms and their adjuncts shall be regulated in the following manner: (follows the text of the law,) notwithstanding the law of the Partida and other laws, statutes, customs, and styles and capitulations, or other dispositions whatever, of the kings my predecessors to the contrary, the which I derogate and annul in everything contrary to this law, leaving in force and vigor for the rest, that so is my will.”—(Novisima Recopilacion, liii, tit. I, 1. 5.)
No change in this respect occurred, nor did any question arise during the residue of the reign of Philip V, or in that of either of his three sons who succeeded, Luis, Fernando VI, and Charles III, nor until the reign of the latter’s son, Charles IV.
But with the first year of the reign of this King (1789) the Cortes assembled at Madrid petitioned him to repeal the auto acordado of Philip V, and to restore the immemorial custom of Castile, which admitted the succession of females to the crown, in conformity with the law of the Partidas.
The petition was unanimous on the part of the Cortes, and the King assented and ordered the preparation accordingly of a pragmatic sanction (an old name for laws of repeal) to that effect, but ordered further that the whole proceeding, and the pragmatic sanction itself, should remain secret and confidential until such time as the Crown might see fit, in its wisdom, to give publicity to the same. That time arrived in the reign of Ferdinand VII.
The Cortes of Cadiz inserted in the constitution framed by them (1812) the substance of the pragmatic sanction, but Ferdinand rejected that constitution, or yielded only forced acquiescence to it during a brief interval, so that it can scarcely be regarded as the fixed organic law of Spain; but on the occasion of his marriage with Maria Cristina, Ferdinand, having had no issue by his previous marriages, and the Queen being pregnant, he, in the uncertainty whether the issue would be male or female, determined to promulgate the pragmatic sanction of Charles IV, (March 29, 1830.) The effect of this act was to produce divisions in Spain between the partisans of temperate and liberal monarchy and the extremists in monarchism and religion, the former rallying around Maria Cristina, who influenced the King in the same direction, and the latter around Don Carlos, the eldest brother of Ferdinand.
[Page 444]In fact the Queen gave birth to a daughter, (October 10, 1830,) who was named Maria Isabel Louisa and proclaimed Princesa de Asturias, or heir apparent to the crown; and she afterward had another daughter, Maria Louisa Fernanda, now the wife of the Duke of Montpensier.
But Ferdinand VII was now approaching his end. Don Carlos with his partisans had resisted and done all in their power to prevent the publication and ratification of the pragmatic sanction, and on the death of his brother he assumed the title of Don Carlos V, in opposition to his niece proclaimed Queen by the title of Isabel II, and his pretensions have been persisted in by his descendants, Charles VI and VIL
Such is the dynastic question. Its elements of law are the plainest possible.
Had Philip V right and power to repeal, by his anto acordado, the immemorial national custom of Castile authenticated in the statute law of the Partidas? If that be admitted, then it cannot be denied that a fortiori his grandson Charles IV had right and power to repeal the auto acordado and, by his pragmatic sanction, to revive and restore the pre-existing law of Spain. In this a great majority of Spaniards of all classes and the most accredited jurists of Europe are of accord, the more so, seeing that the succession of females is the common law of the country, and of most other countries, in opposition to the peculiar Salic law of France; and accordingly Isabel and her son Alfonso have enjoyed the recognition of all foreign powers, while none have recognized Don Carlos.
The political question is a more complex one, but may be disposed of by a few observations.
The immediate political consequence of the devolution of the crown on Isabel was the breaking out of civil war in Spain, which raged with unabated fury during more than eight years of her reign, and was renewed with equal fury on her dethronement.
I have touched some parts of the subject in previous dispatches. It will suffice briefly to resume the elements of the matter at this time.
The royal policy of Ferdinand had been absolutism in its most exaggerated form. He commenced by exiling and otherwise persecuting the members and principal partisans of the Cortes of Cadiz. When, subsequently, after having been compelled by revolution to submit for a while to that constitution, and on being delivered therefrom by the armed intervention of France, he signalized the resumption of absolute power by still more violent persecution of the liberal party, condemning to death a multitude of its conspicuous members and forcing into exile a still larger number, including many of the best and most illustrious men of Spain.
When the infant Isabel acceded to the throne, with her mother Maria Cristina as regent, the latter, in order to defend herself against Don Carlos, reversed the policy of Ferdinand, issued a proclamation of general amnesty, and rallied around the throne all the liberal interests of Spain.
Doña Isabel and Don Carlos became at once the respective representatives, the first of liberal or constitutional Spain, and the second of illiberal or absolutist Spain.
While the war had its principal seat in the northern, northeastern, and eastern provinces of Spain, where absolutist opinion was most intense, it seemed sometimes to scatter itself over the whole peninsula. Its stronghold, however, then as now, has been Navarre and the Basque provinces. The Basques are aliens in race, in language, and in laws to the rest of Spain. They enter somewhat into the population of Navarre, [Page 445] which, besides, is the latest and least reconciled of all the old independent kingdoms, aggregated, rather than united under the sceptre of Charles I.
The whole country is of substantially the same character, a conglomeration of mountains, well wooded, rich in minerals, well cultivated in the valleys, and with abundant means of self-sustenance, especially cattle, maize, and fruits. The climate is agreeable in summer, although wet; and it is cold, with much snow, in the winter. The population is the hardiest in physical constitution, and the most enduring and tenacious of all Spain; intensely bigoted in religion; absolutist in politics; devotedly attached to their local privileges, by which they are exempt from the general tax laws and the conscription which press so heavily on the rest of the nation; and they are selfishly perverse, not only in pretending to enjoy all the privileges of Spanish nationality, without bearing any of its burdens, but in undertaking to impose by force their bigotry and absolutism on all Spain.
Such are the elements at hand and ready for use which have enabled the family of Don Carlos for two periods of eight years each to baffle and defy the successive governments of Spain.
During the second period, now running, the Carlists have received powerful aid in money, arms, equipments, and munitions from the ultra Catholics of the rest of Europe, especially those of Great Britain and Ireland, France, Belgium, Austria, and Germany.
The suggestion in my No. 574 of October 4 on the question of belligerence, as respects the Vasco Navarrese and the Cubans, assumed that to concede it to the latter without conceding it to the former, while an act of semi-hostility in either case, would have less justification in fact as applied to the Cubans, because the insurrection of the Vasco Navarrese, unlike that of the Cubans, is territorial in its character, accessible from abroad, and with organized local institutions, legislative, administrative, and judicial, and established seats of governmental action, after the manner of independent states.
For the rest, my No. 663 of the 18th ultimo will have advised you of the recent change of front on the part of Don Carlos. Theretofore he and his partisans had been in relation with the Cubans in Paris and New York. His letter to Don Alfonso dissolved that connection and drew upon him the resentment of the Cubans.
A Spaniard of much political and social distinction here, who is personally acquainted with the United States and with Cuba, and who, while in high office, formerly manifested goodwill toward us, is of opinion that leading members of the Cuban Junta are animated, not with desire to promote the interests of Cuba, but simply with personal hatred of Spain. He says that one of them is a Venezuelan, not a Cuban, and that the two principal cabezillas in the field are Dominican mulattos, ex officers of the Spanish expedition to Santo Domingo, angered by what they regard as personal ill-treatment on the part of the Spanish government.
Much of the conduct of Don Carlos indicates that, despairing of success in his aspirations, he also is yielding more or less to similar sentiments of mere personal spite and resentfulness in regard to Spain.
I have, &c.,