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From Agnatic Succession to Absolute Primogeniture FROM AGNATIC SUCCESSION TO ABSOLUTE PRIMOGENITURE: THE SHIFT TO EQUAL RIGHTS OF SUCCESSION TO THRONES AND TITLES IN THE MODERN EUROPEAN CONSTITUTIONAL MONARCHY Christine Alice Corcos· 2012 MICH. ST. L. REV. 1587 TABLE OF CONTENTS INTRODUCTION ......................................................................................... 1588 I. TYPES OF HEREDITARY SUCCESSION ................................................ 1598 A. Rules oflnheritance and Their Purposes ................................... 1598 B. Agnatic Succession .................................................................... 1602 C. Male Primogeniture ................................................................... 1603 D. Elective Succession (Elective Monarchy) ................................. 1606 E. Other Theories of Succession .................................................... 1609 1. Succession Through Marriage ............................................ 1609 2. Ultimogeniture .................................................................... 1610 II. TRADITIONAL OBJECTIONS TO FEMALE RULE .................................. 1611 A. The Queen Regnant as Wife ...................................................... 1611 B. The Female as Heir. ................................................................... 1618 III. CHANGES IN SUCCESSION RULES AND THE SHIFT TO COGNATIC SUCCESSION ..................................................................... 1624 A. Sweden ...................................................................................... 1624 B. Norway ...................................................................................... 1625 C. The Netherlands ......................................................................... 1626 D. Belgium ..................................................................................... 1628 E. Denmark .................................................................................... 1629 F. Luxembourg .............................................................................. 1630 G. The Disenchantment with Male Primogeniture ......................... 1632 IV. A CLOSER LOOK AT THE TRANSITION FROM MALE PRIMOGENITURE * Associate Professor of Law, Louisiana State University Law Center; Associate Professor, Women's and Gender Studies Program, Louisiana State University A&M. Thanks to Alain Levasseur and Olivier Moreteau, Professors of Law, Louisiana State University Law Center, for helpful discussion of Civil Code issues; Jennifer Lane, Coordinator, Center of Civil Law Studies, for assistance with translations from Spanish language documents; and Susan Gualtier, Foreign, Comparative, and International Law Librarian, LSU Law Center Library, and Danielle Goren (LSU Law 2012) for research assistance. 1588 Michigan State Law Review VoL 2012:1587 TO ABSOLUTE SUCCESSION: THE SITUATION IN SPAIN AND THE UK ................................................................................................... 1635 A. Spain .......................................................................................... 1635 1. The Current Situation in Spain: Male Primogeniture Under the Spanish Constitution ........................................... 1635 B. The Situation in the United Kingdom ..................................... :.. 1650 1. The Succession to the Throne .............................................. 1650 2. Titles ofNobility .................................................................. 1653 C. European Union Directives, Gender Discrimination, and Absolute Primogeniture in the Matter of the Inheritance of Titles .......................................................................................... 1658 D. Undecided and Unresolved Problems ........................................ 1662 1. The Spouse's Title ............................................................... 1662 2. Finances and Divorces ........................................................ 1666 CONCLUSION ............................................................................................ 1668 INTRODUCTION On October 28, 2011, the heads of the British Commonwealth member states agreed to remove barriers to the succession of the first-born child of the sovereign, whether male or female, to the throne of the United King­ 1 2 dom. Such a rule-the rule of absolute, or full (cognatic) primogeniture - ensures that the oldest child, regardless of gender, inherits the crown. In addition, the heads of state agreed to remove the bar to the marriage of members of the Royal Family to Catholics,3 although the sovereign cannot be a Catholic, since the King or Queen of the United Kingdom is the head of the Church of England.4 The media reported little, if any, opposition to 1. John F. Burns, British Monarchy Scraps Rule of Male Succession in New Step to Modernization, N.Y. TIMES, Oct. 29, 2011, at A4. The change was head-snapping. In 2008, the British government abandoned an attempt to change succession rules only a week after planning to introduce the Single Equality Bill. See Andrew Pierce, U- Turn on Royal Succes­ sion Law Change, The Telegraph, Apr. 28, 2008, at http://www.telegraph.co.uk/news/ uknews/theroyalfamily/1905565/U-turn-on-royal-succession-law-change.html (visited April 12, 2013). 2. As opposed to ordinary primogeniture, where the firstborn son inherits the estate "to the exclusion of younger siblings." BLACK's LAW DICTIONARY 1311 (9thed. 2009). 3. For an extensive discussion of the mechanisms involved in changing the various statutes involved in the Commonwealth countries, see generally Anne Twomey, Changing the Rules of Succession to the Throne (Sydney Law Sch. Legal Studies Research Paper No. 11171, 2011) [hereinafter Twomey, Changing the Rules], available at http://papers.ssm.com/ sol3/papers.cfin?abstract_id= 1943287; Anne Twomey, The Australian Crowns and the Rules ofSuccession, QUADRANT, June 2009, at 44-45. 4. See Bums, supra note 1, at A4. From Agnatic Succession to Absolute Primogeniture 1589 the decision. 5 Indulging in some enthusiastic alternative historical "what-if­ ing" the Daily Mail chirruped: If the new rules had been in force in 1509 Margaret Tudor would have taken the throne instead of Henry vm. That could have meant the Reformation would never have taken place and Elizabeth I would never have been Queen. If the practice had been changed as recently as the last century, Britain could have had two Queen Victorias back to back. Princess Victoria, the Princess Royal would have acceded to the throne in 1901 instead of King Edward VII. When she died just a few months later, her son Kaiser Wilhelm II would have ascended the throne­ something which could have prevented the First World War. The Queen of Eng­ land now would have been the completely unknown Princess Marie Cecile ofPrus- . 6 SJa. While under these rules Margaret, the oldest surviving child, and older surviving daughter, of Henry VII, would have succeeded him,7 the likeli­ hood that the England of Tudor times would have put these rules into place is nil. But suppose we play the game. Had absolute primogeniture been the rule, one cannot necessarily assume that the Reformation might not have touched England's shores. While Henry VIII turned to the Pr91estant faith in part because it promised him a solution to the sticky problem o1 divorce, the Protestant religious revolution attracted others dissatisfied with the Roman Catholic Church, including many in England as well as on the continent.8 To suggest that it would have no influence (rather than less influence) in England is a rather large leap. 5. Girls Equal in British Throne Succession, BBC NEWS (Oct. 28, 2011), http://www.bbc.co.uklnews/uk-15492607. 6. Tim Shipman & Damien Gayle, If Wills and Kate Have a Girl First, She 'II Be Queen! Commonwealth Agrees Historic Change to Give Sex Equality in Royal Succession, MAIL ONLINE (Oct. 28, 2011), http://www.dailymail.co.uklnews/article-2054467/UK-royal­ succession-laws-Commonwealth-agrees-historic-change-sex-equality.html. The article's title is perhaps overly optimistic as well, since this hypothetical first-born daughter has to materi­ alize, and has to outlive both her father and live to see the continuation of the monarchy. See id 7. On the life of Margaret Tudor, see MARIA PERRY, THE SISTERS OF HENRY VIII: THE TUMULTUOUS LIVES OF MARGARET OF SCOTLAND AND MARY OF FRANCE ( 1998). Marga­ ret married as her first husband James IV of Scotland. Id at 10. Margaret's granddaughter was Mary Stuart, the daughter of Margaret's son James V. !d. at 224. 8. If we can give the Reformation a beginning date, it began in 1517 when theolo­ gian Martin Luther famously nailed his Ninety-Five Theses on the Power and Efficacy of Indulgences (Disputatio pro dec/aratione virtutis indulgentiarum) to the doors of the Castle Church in Wittenberg, Germany. Michael Mullett, Martin Luther's Ninety-Five Theses, HIST. REv., Sept. 2003, at 46, 47. Even if the English monarch had not joined the movement, many of the German princes did, and as the Swedish king (eventually) did, for example. See, e.g., C.V. WEDGWOOD, THE THIRTY YEARS WAR 505 (1973). The Reformation ended in 1648 with the signing of the Treaty of Westphalia; at that point, the Catholic monarchs and the Pope recognized that the Protestant countries had successfully defended their beliefs. See id. at 525-26. 1590 Michigan State Law Review Vol. 2012:1587 The Daily Mail's second hypothetical involving Queen Victoria's daughter suggests an even bigger leap.9 Had absolute primogeniture been the rule in
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