THE FRENCH TRADITION OF CITIZENSHIP
In this context we have to ponder the main starting point of the modern tradition. The debate surrounding the first title of the code civil is important because the code Napoleon has been a real paradigm in a universal sense.
Its constitutional dimenÂsion is equally important because it governs the relationship between citizenship and civil rights. Under the ancien regime there had been no general concept and definition of citizenship.[488] Persons belonged to different social statuses; “rights” were first of all “privileges.” The reference point was not one’s belonging to a genÂeral idea of the nation, but rather to a specific structure (seigneurie or pays d’etat, noblesse or ecclesiastical status etc.). Nevertheless, the qualite de Franςais emerges in relation to, for example, the droit d’aubaine, a customary legal institution that was progressively restricted by the lettres de naturalite, by several treaties and by the arrets issued by the Parlements.[489] But it was indeed the French Revolution that contributed most to the ideology of national citizenship.In his famous pamphlet, Qu’est-ce que le TiersEtat, Sieyes renewed the politiÂcal conception of citizenship. The nation, in his view, had to be a voluntary political act of association. The nation, and consequently citizenship, was not based on ethÂnocultural factors, but on political considerations. Assimilation policies, for examÂple the politique de la langue, were politically oriented. Unity and uniformity were the result of a political project.
France, after 1789 and above all after 1792 and the battle of Valmy, reinforced the belief that assimilation presupposed a political idea of citizenship consonant with the Roman tradition. The image of the Grande Nation is the synthesis of a process of transformation.[490] We are concerned here with a missionary Nation inÂspired by the principles of liberty, ready to export them but at the point of a bayonet.
The idea of a great mission for the French nation persisted throughout the whole of the nineteenth Century. Its mission liberatrice et Civilisatrice could be used to transÂform foreigners into citizens.Alexis de Tocqueville in L 'Ancien regime et la Revolution said that the French Revolution took on the appearance of a religious revolution. “Toutes les revolutions civiles et politiques ont eu une patrie et s’y sont renfermees. La Revolution fran- caise n’a pas eu de territoire; bien plus, son effet a ete d’effacer en quelque sorte de la carte toutes les anciennes frontieres. On l’a vue rapprocher ou diviser les hommes en depit des lois, des traditions, des caracteres, de la langue, rendant parfois enne- mis des compatriotes, et freres des etrangers; ou plutot elle a forme, au-dessus de toutes les nationalites particulieres, une patrie intellectuelle commune dont les hommes de toutes les nations ont pu devenir citoyens.”[491] This common intellectual homeland is located above and beyond all the particularisms. “La Revolution fran- caise a opere, par rapport a ce monde, precisement de la meme maniere que les reÂvolutions religieuses en vue de l’autre; elle a considere le citoyen d’une facon ab- straite, en dehors de toutes les societes particulieres, de meme que les religions considerent l’homme en general, independamment du pays et du temps. Elle n’a pas recherche seulement quel etait le droit particulier du citoyen francais, mais quels etaient les devoirs et les droits generaux des hommes en matiere politique.”[492]
In this fashion, eighteenth-century cosmopolitanism became politicized. The National Assembly thus abrogated the droit d’aubaine on the grounds that it was contrary to the principle of fraternity. In fact, the decree of 6 August 1790 abolished the rights of escheat and detraction. This abolition was primarily a political and a symbolic act because even under the ancien regime many agreements with other states had already limited the impact of the droit d’aubaine. But the decree of 1790 was also the highest expression of the principle of extension of citizenship based on jus soli.
This law could even naturalize foreigners without their express formal consent. In 1806 Philippe-Antoine Merlin (in the guise of state solicitor general) defended this ruling before the Supreme Court (Cour de Cassation). On that occaÂsion, the Court, after the judgement of the Cour d’appel of Orleans, had to decide regarding the application of the divorce law to Mr. Terence MacMahon, formerly an Irishman.[493] MacMahon claimed not to have become a French citizen. It was true that he had lived in France since 1782, was an officer in the French Army, and had married a French woman, but he had never asked to become French. Merlin used various counter-arguments. Crucially, he reminded the court that following the deÂcree of 1790 the civic oath, and thus formal consent, was not required. According to Merlin (in a ruling confirmed by subsequent jurisprudence) naturalization could be imposed “par la seule puissance de la loi, et sans Tassentiment de Tctranger.'' The will of the sovereign was fundamental, and a foreigner could not say: “Je ne veux pas etre citoyen, quoique j’habite vos etats.” It is worth pointing out that Merlin bolstered this argument by invoking the Antonine Constitution. “C’est ainsi que, lorsque Antonine, par une ordonnance rapportee dans la loi 17, D. de statu homiÂnum, declara citoyens romains tous les habitans de son vaste empire, qualite prece- demment reservee aux habitans de l'Italie, et plus anciennement a ceux de Rome, il ne s'avisa pas de faire dependre de leur consentement, le bienfait dont il jugeait a propos de les gratifier.”[494] It is what France did when the law of 23 February 1797 extended French citizenship to all Belgians.The 1791 Constitution withdrew the automatic naturalization established in 1790. Those who had been born in France to a foreign father and decided to reside in the kingdom were French citizens. Those who had been born abroad to a French father could recover citizenship if they settled in France and swore the civic oath (serment civique).
Persons born abroad but having French parents and being the descendants of Protestant exiles likewise regained citizenship. Moreover, persons born abroad to foreign parents could become Frenchmen after five years of resiÂdence in France if they had purchased a property or married a French woman or established an agricultural or commercial enterprise, but in these circumstances only by swearing the civic oath.[495] The reasoning started, of course, with the jus sanguinis, but it confirmed the citizenship of those foreigners who decided to beÂcome French. Stability of the link, property, marriage and the civic oath were the elements that allowed one to be a good citizen. This new constitutional citizen had to be “fidele a la nation, a la loi et au roi, et de maintenir de tout [son] pouvoir la constitution du royaume, decretee par l'Assemblee nationale constituante...”[496] The constitution of 1791 was in effect for only a short period because the combinaÂtion of the law of 1790 and the constitution of 1793 then extended automatically the qualite de Franςais. Once more, the Thermidorian constitution of 1795 (5 fructidor year III) put a stop to automatic naturalization.[497] Now citizenship belonged to every man who was twenty-five or older, born and residing in France, who decided to become a citoyen actif by enrolling himself on the register of his canton and who had resided in France for a full year and paid taxes. At the same time, a stranger who was twenty-one or older could become a French citizen after having declared his intention to live in France, but on condition that he had resided in France for ten consecutive years, paid taxes, owned a property or agricultural enterprise, or else had married a French woman.3.