DOI Page / Citation link:
https://doi.org/10.11588/diglit.47347#0089
THE SPANISH SUCCESSION.
73
that the king can modify the succession to the throne by a
family law, or by a will, without the participation and the
consent of the Cortes h The defenders of Don Carlos
acknowledge this principle as well as we, for we do not see
that they have as yet pretended that Philip V. could of him-
self alone modify the order of succession ; on the contrary,
they assert that this order was legally modified by the king,
because the auto acordado was made in the legal forms and
with the consent of the Cortes. If, then, the right of suc-
cession to the throne of Spain is not derived either from the
quality of the king or of the royal family, or from the laws
or the testamentary will of the reigning family, it can only
be derived from the fundamental laws made by the king and
the nation both together. This has, in fact, been the case
in Spain. In the remotest times, it was the people who
freely chose their king; subsequently, the nation or its
Cortes settled with the king the order of the hereditary
succession : on this account it was that the king, though
absolute in other respects, could not modify any thing in
the order of succession without the consent of the Cortes;
and oh this account it was that, on his accession to the
throne, he swore to observe this law 1 2. It is precisely be-
cause the succession to the crown rests upon the laws which
can only be made by the king and the Cortes without any
other participation, that it can be modified like any other
law, when the welfare of the state demands it, by the con-
current will of the king and the Cortes, who alone have the
1 See Sempere y Guarinas, Historia de la Legislacion, lib. iv.
2 Marina, Ensayo critico de la Legislacion, t. ii. p. 66. 69. According to
Grotius, kingdoms in which the sovereign is not absolute master of the order of
succession to the throne are called regna usufructuaria, in contradistinction to
patrimonial states. The Spanish political writers still make use of the former
expression to designate the form of their government; we have avoided it here,
for it explains nothing, and might lead into error.
73
that the king can modify the succession to the throne by a
family law, or by a will, without the participation and the
consent of the Cortes h The defenders of Don Carlos
acknowledge this principle as well as we, for we do not see
that they have as yet pretended that Philip V. could of him-
self alone modify the order of succession ; on the contrary,
they assert that this order was legally modified by the king,
because the auto acordado was made in the legal forms and
with the consent of the Cortes. If, then, the right of suc-
cession to the throne of Spain is not derived either from the
quality of the king or of the royal family, or from the laws
or the testamentary will of the reigning family, it can only
be derived from the fundamental laws made by the king and
the nation both together. This has, in fact, been the case
in Spain. In the remotest times, it was the people who
freely chose their king; subsequently, the nation or its
Cortes settled with the king the order of the hereditary
succession : on this account it was that the king, though
absolute in other respects, could not modify any thing in
the order of succession without the consent of the Cortes;
and oh this account it was that, on his accession to the
throne, he swore to observe this law 1 2. It is precisely be-
cause the succession to the crown rests upon the laws which
can only be made by the king and the Cortes without any
other participation, that it can be modified like any other
law, when the welfare of the state demands it, by the con-
current will of the king and the Cortes, who alone have the
1 See Sempere y Guarinas, Historia de la Legislacion, lib. iv.
2 Marina, Ensayo critico de la Legislacion, t. ii. p. 66. 69. According to
Grotius, kingdoms in which the sovereign is not absolute master of the order of
succession to the throne are called regna usufructuaria, in contradistinction to
patrimonial states. The Spanish political writers still make use of the former
expression to designate the form of their government; we have avoided it here,
for it explains nothing, and might lead into error.