In accordance with the honour that France has enjoyed under the papacy, many assume that French monarchy requires allegiance to the Church of Rome. Indeed, the Alliance Royale seems to support this religious obligation: ‘À la couronne est attaché le serment de défendre la couronne contre l’ambition des puissants et de la garder fidèle à l’Église romaine’ (‘to the crown is attached the oath of defending the crown from the ambition of the strong, and of keeping it faithful to the Roman Church’). This customary oath, however, can be removed, in my opinion, without any change to France’s constitutional principles; this removal would allow a Protestant to be crowned King of France.
Not all will think it legally simple to change the oath. One Legitimist – and Legitimism, it seems to me, has a high regard for the rule of law and existing constitutional principles in succession – discusses what he thinks to be the fundamental principles of the French succession. Of these, by far the weakest stipulation, not even comparable to the Salic Law, is that the King of France be Roman Catholic (‘the Sovereign must practise the Roman Catholic Apostolic Religion’). Unlike Britain, which is bound by the Act of Settlement passed by the English Parliament in 1701 to exclude all Roman Catholics from the royal succession, France has never passed a law to block anyone’s succession to the throne on the grounds of his being a Protestant. No law, then, actually requires that the King of France be a Romanist.
Some may object that the Protestant Henry IV, despite being reconciled with Henry III, did in fact convert to Roman Catholicism. This historical fact, however, is strictly limited to the practicalities of the time and therefore can have no legal force today, any more than a riot now long past can give us binding legal principles. For similar reasons, no constitutional principle against excise taxes on whiskey can be derived from the Whiskey Rebellion that shook the United States during the Washington presidency and led eventually to the repeal of the strongly resented tax.
There are yet more pointed historical facts that nevertheless cannot impinge on the actual constitutional principles that govern France. These are the events of 1593 that pressed Henry IV to finally renounce his Protestant faith, keeping the promise he had made to his Romanist subjects on 4 August 1589:
A new danger had arisen with the gathering of delegates to a [Catholic] League Estates General. For the first time, a significant body of Catholic opinion was prepared to set aside the Salic Law and elect a new ruler. With the possibility of the Spanish Infanta being elected queen of France, Henry’s procrastination was no longer a rational choice.
Unlike armed rebellion, these historical facts involve legal opinion and therefore must be taken more seriously. Still, the threat of a change to the succession law is decidedly not the same as a real change to the law, nor can it recognized as a binding principle of the royal succession. The most it tells us is that the Salic Law can indeed be set aside legally if this be found necessary, and that such a change may be motivated by the desire to ensure that the French succession passes to a Romanist, parallel to the British desire to ensure that the British succession goes to a Protestant. In legal fact, however, no religious requirement has legally been made, and even a repeal of the Salic Law would not establish any requirement that the King of France be a Romanist.
Perhaps Henry IV of France will yet have a Protestant successor. Even though this runs against the grain of ultramontane clericalism common among French Legitimists, I certainly hope it will come to pass. There really should be no constitutional crisis.