FINAL REMARKS
The outcome of a lengthy debate. lasting nearly two full years. may prompt some final remarks.
The Civil Code contains a comprehensive discipline about citizenship (qualite de Erancais) as a national property right.
Is this discipline so expansive? It is surely less expansive than the revolutionary doctrine itself. or so many commentators judged in the nineteenth century.[564]From a certain point of view, Napoleon’s principle - “Tout individu ne en France est Francais'' - is a more accurate reflection of revolutionary ideology. The tribun Gary, presenting the project to the Corps Iegislatif on 17 March 1803, began his speech with words that evoke another very famous incipit, Omnes populi, of the Institutiones of Gaius. “Le droit civil, [qui] est le droit propre a chaque nation et qui la distingue des autres [...].”[565] A first proposal, endorsed by Napoleon, had been to declare every person born in France a Frenchman “sans s’embarasser de sa destinee et de sa volonte ulterieure.”[566] According to this idea, those blessed with such good fortune - bonheur Gary says - should enjoy all the rights that Frenchmen do. But this sort of universalization of French citizenship sounds rather like a feudal legacy. The model could hardly be England, where every person who had been born there was a subject of the King. Napoleon had in mind strategic and political goals[567] and spoke about the advantage of extending the sway of French civil laws. Napoleon had an “imperial vision,” and when he advanced the principle in 1801, France was clearly meant to become the Grande Nation in an imperial context. The coronation of Napoleon in 1804 was merely the ratification of a process. It is true that, as RogÂers Brubaker argues: “The expansive definition of citizenship in the Civil Code reÂflects a markedly Francocentric set of presumptions about the attachements and loyalties of persons connected to France by birthplace or parentage.” But the myth of the French Revolution as revolution liberatrice is now hard to sustain.
Probably the Tribunat, but also some important conseillers d'Etat, saw in Napoleon’s granÂdeur the imperial perspective and sought, successfully, to limit the idea of an unÂconditional jus soli. A sort of universalization of French citizenship seemed at odds with Gaius’s idea of the civil law,[568] as recalled by the rapporteur Gary.[569] Napoleon said that France had an interest in extending the sway of French civil laws. Others feared that to bestow French citizenship too widely, without regard for the intrinsic ties of nationhood, would devalue the status of French citizenship, depriving it of dignity and prestige. They still sought to reaffirm the expansiveness of French citiÂzenship, but their horizons had changed. As Tocqueville would later observe, the idea of a “patrie intellectuelle commune” would increasingly become less resonant. But the Civil Code, now the Code Napoleon, seemed in 1804 to be the “common law” for a Grande Nation that already included Belgium, Luxembourg, Geneva, and some regions in the Rhineland and in Piedmont. Napoleon has thus been repreÂsented as the fourth founder of a French dynasty, after Clovis, Charlemagne and Hugh Capet.[570] The ancient lands of Lotaringia regained political and strategic val- ue.[571]“Le Code civil,” Bigot de Preameneu noted in 1807, “etait la loi particuliere des Francais; elle est devenue la loi commune des peuples d’une partie de 1’Europe.”[572] And the Civil Code could also be incorporated into other legal systems now in the orbit of the French empire.[573] Expanding citizenship meant conquering Europe. Like the Emperor Antoninus, Napoleon could extend citizenship to the “others.”[574]
Jus sanguinis, namely the tie of kinship, was the predominant principle because it was the exclusive criterion “for attributing the quality of being French at birth.”[575] The qualite des Franςais derived only from birth and the patronymic line,[576] whether in France or abroad.
Only attainment of the age of majority and residence could enable someone to have French citizenship by virtue of the jus soli. Finally, the Civil Code contained an “ingenious compromise”, supported by Trochet, beÂtween two elements,[577] but with the jus sanguinis always in possession of the upper hand. After the Revolution “the first turning point was reached with the Civil Code in 1803, nationality took on autonomy: it was defined independently of citizenship and became a personal right.”[578]At the same time, the reciprocity clause determined the status of foreigners and their chances of enjoying civil rights in France. So citizenship status depends, acÂcording to the first articles of the Code Napoleon, on the jus sanguinis, though with some elements introduced through jus soli[579] This is also doubtless the reason why during the nineteenth century the discipline of the Napoleonic code could be inÂvoked, for instance in Italy, by those intent upon promoting one or the other princiÂple.[580]
In 1803 another tribun, Sedillez, asked: is the civil code the labour of four years or four centuries? “Est-ce la conception d’un seul homme, ou les chefs-d’oeuvres reunis, embellis, de plusieurs heros? est-ce l’histoire ou la Fable? La posterite doutera peut-etre; vous connoissez la verite.”[581] What truth might there be in this? The propaganda machine immediately promoted the notion that the Civil Code had been the creation of Napoleon, supported by the four artisans. But this “fable” was part and parcel of Napoleonic hegemony, with the civil code depicted as a mass of granite. Historians, for their part, do not confuse the fable with a highly complex historical process tinged with mythic attributes from the very start.[582]
When we look at Napoleonic France as a conquering empire, we find the Grande Nation granting citizenship “par la seule puissance de la loi, et sans Tassentiment de l’etranger” as Merlin argued in 1806.
Here, then is an “Antonine moment.”But let us conclude by glancing for a moment at the other side of the coin. Ten years later, Benjamin Constant wrote a powerful pamphlet against Napoleon, the French Attila, and his legacy, De l'esprit de conquete et de l'usurpation dans leurs rapports avec la civilisation europeenne. He began chapter 13 by saying that “Il est assez remarquable que Funiformite n’ait jamais rencontre plus de faveur que dans une revolution fait au nom des droits et de la liberte des hommes.”[583] This spirit of conquest led to the formation of the “grand empire.”[584] This was the opposite of the liberty of the Moderns, which was based on trade, industry, rest and leisure.[585] InÂstead, the spirit of conquest sought everywhere the same laws, the same weights and measures, and even the same language.[586] “Sur tout le reste, le grand mot aujourd’hui, c’est l’uniformite.”[587] Constant published the book in 1814, as a poÂlemic against the Napoleonic dictatorship, but in fact some passages dated back to 1802, while others derived from the manuscript Principes de politique of 1806. Uniformity through conquest and universalization threatened the freedom to be “different,” pluralism, and political liberalism.[588] Constant quoted Montesquieu (Esprit des Lois, XXIX, 18) and the elder Mirabeau (Ami des hommes, ou Traite de la population, part IV); he also cited a conservative German jurist by the name of August Wilhelm Rehberg, whose thought reflected some aspects of the emergent Historische Schule. In his argument, nationhood is not an abstract entity. Writing of the application of the Code Napoleon in Germany, Rehberg insisted: “Chaque geÂneration herite de ses ai'eux un tresor de richesses morales, tresor invisible et precieux qu’elle legue a ses descendants.”[589] But Constant looked to the future, to the relationships between general interest and special interests, universality and localism, central power and municipal power. Constant concluded by saying “La variete, c’est de l’organisation; l’uniformite, c’est du mecanisme. La variete, c’est la vie; l’uniformite, c’est la mort.”[590] The ephemeral Acte additionel aux ConstituÂtions de TEmpire, a text to which Constant himself contributed,[591] revealed an inÂtent “d’organiser un grand systeme federative europeen.” To say “the French EmÂpire communis nostra patria est was less and less plausible. Napoleon’s dream was about to end.