NAPOLEON, JEAN-DENIS TRONCHET AND THE IDEA OF CITIZENSHIP

The constitution of 22 frimaire an VIII (13 december 1799) is important because it furnished the final political element for the debate on the Civil Code.^[498] According to Article 2 every man born and residing in France was a Frenchman, but only a male who, “having reached the age of twenty-one, had his name recorded in the civic register of his communal district” and had lived for a year since that time within the territory of the Republic was a citizen.^[499] The French debate surrounding the Civil Code shows just how important the relationship between constitution and codification is.

However, the French model established a paradigm that was to prove very suc­cessful during the nineteenth century. This model bears the mark of Napoleon, but at the same time goes beyond him. The French Civil Code has the capacity to iden­tify and strengthen ingrained social and economic structures. It itself becomes the new constitution, the real constitution des Franςais.

Napoleonic constitutionalism was weak to the degree that - Verfassungsrech- tlich, one might say - the Civil Code was strong.^[501] It was the alpha and omega of the new France, and its social foundations envisaged a new point of equilibrium for the changed social order then coming into being. The Code civil entails the idea of a civil law that, carefully examined, may be regarded as the ultimate constitution of private individuals. Was it by means of the Civil Code that the elusive termination of the Revolution would be achieved?^[502] The swift mythologization of the Code Napoleon has done much to foster an image of it as at once profoundly stable and utterly central.

Portalis says, in his famous Discours preliminaire, that it is time to overcome the esprit revolutionnaire, that is “le desir exalte de sacrifier violemment tous les droits a un but politique...”^[503] France should recover “de bonnes lois civiles.” These laws are “la source des moeurs, le palladium de la propriete, et la garantie de toute paix publique et particuliere: si elles ne fondent pas le gouvernement, elles le mantiennent; elles moderent la puissance, et contribuent a faire respecter, comme si elle etait la justice meme. Elles atteignent chaque individu, elles se melent aux principales actions de la vie, elles le suivent partout; elles sont souvent l'unique morale du peuple, et toujours elles font partie de sa liberte: enfin, elles consolent chaque citoyen des sacrifices que la loi politique lui commande pour la cite, en le protegeant, quand il faut, dans sa personne et dans ses biens, comme s'il etait, lui seul, la cite toute entiere.”^[504] In the reasoning of Portalis, we catch an echo of the celebrated incipit of the Ulpian Institutiones.

Speaking in 1805 about the esprit du code Napoleon, Jean Guillaume Locre said that it at last distinguished “entre Texperience et la routine, entre le progres reel des lumieres et les illusions de l’ideologie.”^[505] The code eliminates the abuses of the past, but also its groundless changes. “Aussi le CODE NAPOLEON fixe-t-il parmi nous Tepoque du retour a l’ordre, aux idees saines, aux idees veritablement grandes, veritablement liberales.”^[506]

The drafting of the French Civil Code launched a very important debate about the modern idea of citizenship. It was a long and intricate debate. “Ce titre - Ma- leville has noted - est celui dont Tanalyse m’a le plus coute, a cause de la multitude de questions importantes qu’on y a traitees, et de la variation des decisions qu’elles ont recues; ce n’est qu’a la septieme redaction qu’il a ete enfin adopte tel que nous Tavons [...].”^[507]

The premier consul, Napoleon, during early discussion at the Council of State (Conseil d'etat), took great care to affirm the principle that “Tout individu ne en France est Francais.''^[508] As we know, the intellectual presence of Napoleon in the drafting of the civil laws was by no means marginal^[509] and was not limited to di­vorce and other special legal institutions (divorce, dowry, etc.).

The debate between Napoleon and Francois-Denis Tronchet, perhaps the most conservative of the four architects of the Code Civil^[510] and one of the notables of the Napoleonic regime, is of particular interest. Famous for having been part of the counsel during the trial against of Louis XVI, Tronchet was president of the Tribu­nal de cassation and president (with Portalis, Maleville and Bigot de Preameneu) of the commission charged with drafting the Civil Code. Tronchet stated that the fact of having been born in France gave one the possibility of enjoying civil rights, but that the assumption of them was to be a voluntary act. Tronchet thought that the Civil Code ought to determine the status of persons born in France to a foreign fa­ther. The constitution of the year VIII enabled a second-generation foreigner, once he was twenty-one years old, to claim political rights. This being the case, it would make better sense - Tronchet noted - if the Civil Code were to establish that a for­eigner born in France had civil rights also.^[511] Napoleon asked what problem there was in recognizing the foreigner born in France “sous le rapport du droit civil.” In fact, Napoleon observed, “Il ne peut y avoir que de Tavantage a etendre Tempire des lois civiles francaises.” Napoleon wanted to reverse the constitutional principle: “... au lieu d’etablir que Tindividu ne en France d’un pere etranger n’obtiendra les droits civils que lorsqu’il aura declare vouloir en jouir, on pourrait decider qu’il n’en est prive que lorsqu’il renounce formellement.”^[512]

Tronchet explained that the authors of the draft had abided by tradition, that is, the ancient maxims on the personal status of foreigners. This stance was not acci­dental, for Tronchet attached great importance to coutumes (customs). But Tron- chet, as jurist, “argued with all the more conviction that jus sanguinis was superior to jus soli because it was inspired by Roman law, whose influence had expanded among jurists during the eighteenth century.”^[513]

The aim was not to prejudice the principles established by the Assemblee con- stituante, which had allowed all foreigners to enjoy civil rights without any condi­tion of reciprocity.

Napoleon does not seem to have been convinced. According to him this issue would have to be considered “sous le rapport de l’interet de la France.”^[514] The Pre­mier Consul had strategic goals in mind, being concerned not to give citizenship directly, on the basis of jus soli, to persons born in France to foreigners. This would make it impossible to subject them to military conscription or to public taxes. In that period there were many foreigners in France who were prisoners. Napoleon said, “Si les individus nes en France d’un pere etranger n’ont pas de biens, ils ont du moins l’esprit Prancais. les habitudes Prancaises: ils ont l’attachement que chacun a naturellement pour le pays qui l’a vu naitre; enfin ils portent les charges pub- liques. S’ils ont des biens, les successions qu’ils recueillent dans l’etranger arrivent en France; celles qu’ils recueillent en France sont regies par les lois francaises...” So, Napoleon concluded, it is altogether to France’s advantage to admit them to the status of Frenchmen.^[515]

Napoleon’s main interlocutor, Tronchet, acknowledged that this problem should be considered relative to utility, but he continued to believe that there was utility only when the stranger chose France, and this really happened only if the foreigner expressed the will to become French. If he refused, his property reverted to the country of his father, unless there was a reciprocal agreement.^[516] Tronchet’s approach - followed by many speakers during the debate - is closer to the post­revolutionary philosophy that focuses upon human interests and upon the selfish nature of man.^[517] Roederer thought that most foreigners’ sons would remain in France.

Though they agreed on many other aspects, the positions of Napoleon and Tronchet represent two distinct ways of viewing the civil structure of citizenship. Tronchet thought that only a conditioned jus soli could give rise to a compromise between the general principle (“Tout individu ne en France est Francais'') and its real application. Napoleon underlined the revolutionary potential of an expanding citizenship capable of enhancing the constitutional dimension. Napoleon’s vision was no longer inspired by the ancient question of the droit d'aubaine^[518] Napoleon looked at the positive aspects, and envisaged an imperial France able to grant un­conditional citizenship to those born in France to a foreign father. We must remind ourselves that Napoleon was speaking in July 1801. For the first time in ten years Europe was “at peace” - a “French peace,” we could say. The great powers had signed peace treaties, but we might do better to speak of a truce. Nevertheless France was the dominant nation on the Continent, and the grande Nation now in­creasingly seemed to be an effectively imperial structure. The jus soli - according to Napoleon - was part and parcel of a strategy in which military and fiscal goals were apparent. Contrary to expectations, the starting point was not the jus san­guinis.

This intense debate between Napoleon and Tronchet was not easily or swiftly resolved. Napoleon, perhaps a little impatient, put the principle to the vote. But what principle? The problem was putting it into words. Boulay, Regnier and Reg- naud de Saint-Jean-d’Angely proposed three different drafts. Finally “Le Premier Consul renvoie la redaction a la section.”^[519]

The issue of the extension of citizenship cropped up again and again in the course of this debate. Some members of the Council of State denied that the son of someone who had renounced his homeland could be considered French.

At the end of the debate in the Council of State three main principles were ap­proved. Every Frenchman enjoys civil rights established by French law (art. 1). Every person born in France is a Frenchman (art.2). Every child born abroad to a Frenchman is French. If a father has renounced France, the son can recover citizen­ship by asserting a wish to reside in France.^[522] Napoleon appeared to have won this battle. But this was only the first round.

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