Race and nation. On ius sanguinis and the origins of a racist national perspective

Abstract

Until the beginning of the nineteenth century, the ius soli was the default common standard to acquire citizenship in Europe. Its roots - which were ultimately developed by the Middle Ages' glossators and commentators - were interconnected with the notion of sovereignty and had a working simplicity that avoided the generation of stateless people in various territories of the early modern European states. With the promulgation of the Code Napoléon1 this finally came to change with the introduction of the ius sanguinis as the main criterion to recognise nationality. Its imposition was against the whole of the Western legal tradition - one preserved in the Americas because of the independence processes the different colonies experienced from their earlier metropolis - the main scholarship that influenced the code and even the wishes of Napoleon. What made the codifying commission adopt such an unusual standard? We will try to establish that the emergence of the first essays on what came to be known as scientific racism - a dark science, which tends to explain national character in terms of genetic heritage - was at the very base of this development.

Full text

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DOI: 10.17159/2411-7870/2018/v24n2a1
Print ISSN 1021-545X/ Online ISSN 2411-7870
Fundamina
Volume 24 | Number 2 | 2018
pp 1-20
1RACE AND NATION. ON IUS SANGUINIS
AND THE ORIGINS OF A RACIST
NATIONAL PERSPECTIVE
Carlos Amunátegui Perelló*
ABSTRACT
Until the beginning of the nineteenth century, the ius soli was the default common
standard to acquire citizenship in Europe. Its roots – which were ultimately developed
by the Middle Ages’ glossators and commentators – were interconnected with the
notion of sovereignty and had a working simplicity that avoided the generation of
stateless people in various territories of the early modern European states. With the
promulgation of the Code Napoléon1 
of the ius sanguinis as the main criterion to recognise nationality. Its imposition was
against the whole of the Western legal tradition – one preserved in the Americas
because of the independence processes the different colonies experienced from their

of Napoleón. What made the codifying commission adopt such an unusual standard?


of genetic heritage – was at the very base of this development.
Keywords:Ius soli; ius sanguinis; race; nation
1 Code Napoléon / Code civil des Français of 1804 (hereinafter referred to as the French Civil
Code).
* ProfessorinRomanLaw,PonticiaUniversidadCatólica,Chile.

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CARLOS AMUNÁTEGUI PERELLÓ
1 Introduction
During 2017, nationality and its acquisition became one of the most debated subjects
in the public arena. It was even a mayor concern during the last presidential campaign
in the United States, where at least one of the candidates proposed the amendment of
the constitutional disposition that provides American citizenship to all people born
in its territory – the so called ius soli.
This article intends to draw a simple history of the principles that rule the
acquisition of nationality in Western societies, that is to say, the so-called ius soli
and ius sanguinis, in order to provide some information about the formation of
both principles and the ideas that led to their adoption. This is an historical and
comparative exercise, which intends to contribute to the ongoing debate by providing
a detailed analysis of the reasons and arguments that underpin the adoption of these
two systems to confer nationality.
This article will start with a short history of the acquisition of citizenship up
to the French revolution, attempting to establish the foundations of the dierent
Western legal traditions on the topic. Then it will analyse the momentous change
in the criteria for nationality attribution that took place during the Napoleonic era –
the introduction of the ius sanguinis in Western legal tradition – in order to explain
its expansion and ultimate predominance in the European legal systems during the
nineteenth century.
The third part of this article deals with the ideology behind the introduction of
the ius sanguinis andhowitmaybelinkedwiththeemergenceofscienticraciscm
during the late eighteenth century. Thereafter, some conclusions will be drawn.
2 The origins of the ius soli and the ius sanguinis
Ius soli and ius sanguinis are the usual terms employed to refer to two dierent
systems of acquisition of nationality on which most of the Western societies tend
to base their institutions. However, despite the Latin terminology there are no such
Roman institutions to be found. In fact, the rules of acquiring citizenship in the
Roman world were quite dierent from our own. Under Roman law, citizenship
could be acquired by birth, by liberation, or through a special grant of the city.
We are only concerned with birth, where the rule is that a son born from marriage
acquired the citizenship of his father,2 while if he was born from an extra-marital
relationship, he would follow the citizenship of his mother.3 The underlying reasons
for such attribution were imbedded in the Roman perceptions of family ties. The link
2 D 1 5 19 Celsus libro 29 digestorum. Cum legitimae nuptiae factae sint, patrem liberi sequuntur:
volgo quaesitus matrem sequitur.
3 D 1 5 24 Ulpianus libro 27 ad Sabinum. Lex naturae haec est, ut qui nascitur sine legitimo
matrimonio matrem sequatur, nisi lex specialis aliud inducit.

3
between the members of a group was based on the fact that they had all been under
the patria potestas of the same pater, usually the eldest man in the group, who had
absolute power over its members, including the possibility of killing them.4 These
members were the agnati, and were also known as familia proprio iure, for only
this relationship created legal consequences.5 The kinship relationships outside this
narrow legal framework were usually without legal consequences and were regarded
as natural – common to all men and animals alike6 – as opposed to legal.
This strict criterion to confer citizenship in Roman law underwent a substantial
change at the beginning of the third century. In 212 AD emperor Antoninus
Caracalla conferred Roman citizenship on all the inhabitants of the Roman Empire.7
Although the reasons for and consequences of this grant remain controversial, for
present purposes the key feature of this important act was a big change regarding
the criterion for assigning citizenship during late antiquity: one from power-based
family relations to residence. Residence in the Empire thus became the determinant
factor for granting citizenship, while the later Roman Empire was slowly becoming
a territorial state. Roman citizenship meant that there was only one legal system in
4 The peculiar nature of family relationships in Roman law has been under furious debate for over a
century. As a matter of fact, there seem to be two main explanations for its peculiar character. On
the one side, family relationships have been envisioned as holding a political nature. Each family
would be a political unit that would be ruled by a sovereign, commanding individual, the pater
familias(seeBonfante1963:7).Anotherexplanationwouldpointtotheeconomicunityofthe
family. In Republican Rome there was no single word to describe property, so the power relations
that would constitute the core of the family would mimic the power a man had over material goods
to use and dispose of them (see Arangio-Ruiz 1914: 109-158; Voci 1953: 101; Kaser 1960: 47;
Pugliese 1985: 11).
5 D 50 6 195 2 Ulpianus libro 46 ad edictum. Familiae appellatio refertur et ad corporis cuiusdam
signicationem, quod aut iure proprio ipsorum aut communi universae cognationis continetur.
Iure proprio familiam dicimus plures personas, quae sunt sub unius potestate aut natura aut
iure subiectae, ut puta patrem familias, matrem familias, lium familias, liam familias quique
deinceps vicem eorum sequuntur, ut puta nepotes et neptes et deinceps. Pater autem familias
appellatur, qui in domo dominium habet, recteque hoc nomine appellatur, quamvis lium non
habeat: non enim solam personam eius, sed et ius demonstramus: denique et pupillum patrem
familias appellamus. Et cum pater familias moritur, quotquot capita ei subiecta fuerint, singulas
familias incipiunt habere: singuli enim patrum familiarum nomen subeunt. Idemque eveniet et
in eo qui emancipatus est: nam et hic sui iuris eectus propriam familiam habet. Communi iure
familiam dicimus omnium adgnatorum: nam etsi patre familias mortuo singuli singulas familias
habent, tamen omnes, qui sub unius potestate fuerunt, recte eiusdem familiae appellabuntur, qui
ex eadem domo et gente proditi sunt.
6 D 1 1 1 3 Ulpianus libro primo institutionum. Ius naturale est, quod natura omnia animalia
docuit: nam ius istud non humani generis proprium, sed omnium animalium, quae in terra, quae
in mari nascuntur, avium quoque commune est. Hinc descendit maris atque feminae coniunctio,
quam nos matrimonium appellamus, hinc liberorum procreatio, hinc educatio: videmus etenim
cetera quoque animalia, feras etiam istius iuris peritia censeri.
7 D 1 5 17 Ulpianus libro 22 ad edictum. In orbe Romano qui sunt ex constitutione imperatoris
Antonini cives Romani eecti sunt.
RACE AND NATION

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CARLOS AMUNÁTEGUI PERELLÓ
theEmpire–incontrastwiththedierentpersonallawsofthepreviousera–since
there was only one ruler and (after the adoption of Christianity) one God.
However, the legal framework of citizenship came into conict with the
economic realities of the later Empire. During the Late Republic and the Early
Empire Rome had become a market society.8 In this context, geographical mobility
was one of the main features that Rome’s dominion over the Mediterranean world
broughttoantiquity.Cicero,deningthespiritofancientcosmopolitanstatesthat
patria est ubicumque est bene,9 that is, that one’s homeland is wherever one feels
good. The myth of Romulus founding Rome as an asylum that welcomed anyone
who wanted to migrate “might have been designed expressly to legitimise a citizen
body based not on birth but on the desire to become Roman”.10
Although the needs of the productive economy were satised partially with
a free labour market,11 the pressure for mobilising labour triggered a massive
heterogeneous migration based on slavery, involving millions of captives from the
wars conducted by Rome being sold at markets.
During the Late Empire, Rome’s market economy was shrinking. The catastrophic
consequences of the third-century crises, and the extended de-monetisation of the
Empire12ledtoacontrarymovementinordertoxatemanpower.Aslaveworkforce
became rare, and was replaced by coloni in large areas of the Empire.13 These coloni
were poor citizens, nominally free, but bound to the land they were working by ties
that in the Middle Ages would give rise to feudalism.
A contradiction was the result, for while the economic pressures were demanding
the control of movement within the Empire, the legal framework granted Roman
 8 ThepresenceorabsenceofmarketsintheRomaneconomyisaercelydebatedsubject.Nowadays
discussion commences with the work of Finley (1999), who proposed a weak role for markets for
the classical world, mostly for the big metropolises of antiquity, like Rome or Alexandria, while
the rest of the Empire would remain under an economic model based on limited commerce in
the context of a peasant economy. Several academics have followed his model, proposing low
levels of monetisation and restricted local markets (see Finley 1999: 95-122; Crawford 1970: 40-
48; Meikle 2002: 233-250). This is known as “primitivism”. Since the beginning of the twenty-
rstcentury,analternative perspective has takenroot,proposingdeeperlevelsof monetisation
throughout the Empire and a proper market economy for the Late Republic and Early Roman
Empire, which accordingly has been called “modernism” (see Greene 1990: 45-66; von Reden
2012: 266-285). For the complete debate, see Bang 1997: 1-21.
9 Tusc Disp 5 108.
10 See Neville 2006: l 5167.
11 Free labour in late Republican and Imperial Rome has been a topic of intense recent debate, with
some scholars suggesting that beside the slave market, there was also a market for free labour in
the late Republic (see Harris 2011: l 546-578; Kehoe 2012: 114-131). The most extreme approach,
suggesting the prevalence of a market of free labour for Rome, is Temin 2013: 114-138.
12 See Lo Cascio 2000: 307-326.
13 For the economic implications of colonate, see Marcone 1997: 151-174. See, further, on colonate’s
legal framework, Sirks 1999: 419-430; Sirks 2008: 120-143; Santilli 1999: 275-292.

5
citizenship to all free people of the Empire. New legal devices were designed in order
to restrict their mobility and migration. A whole new set of regulations was produced
to settle the productive forces of the Empire. A labour law of sorts was created,
which aimed to limit workers’ mobility and assign them to their place of origin.
DuringthetimeofConstantinetheGreat,eldworkerscouldnot leave their jobs
untiltheharvestwasnished,14 while a little later, Valentinian and Valens prohibited
them from leaving their lands of origin at all.15 Imperial governors were charged
with the task of returning them to their lands of origins if they were apprehended
elsewhere,16 thus establishing a formal prohibition to either include them in any city
census or grant them a right of residence.17
In this context, the question of a person’s origin became quite relevant once again.
In the Later Empire it was a person’s origin which conferred the right to establish
residence, and residence consequently acquired a status equivalent to citizenship.18 A
person’s origin was determined at his birth, according to his father’s origin. A series
of imperial decisions made this point clear.19 In the new Christian empire, born from
the ashes of the third century, Roman citizenship was universal although there was
a kind of denizenship that depended on birth and which ultimately gave the right to
establish residence in a particular region of the Empire.
After the disintegration of the western part of the Empire, common legal rules
disappeared during the Dark Ages and only re-emerged once the invasions and
depopulation receded to give way to a new world which eventually adopted earlier
legal rules.
14 C 11 48 1.
15 C 11 48 3.
16 C 11 48 6.
17 C 11 48 11.
18 Centuries later the medieval commentator Baldus said that residence was a kind of (quasi)
citizenship: Baldo Ubaldi in I-XI Codicis Libros Commentaria, 1577, 7: Nam ratione domicilii
est eectus sub illa lege: quam quasi civis est.
19 This was decided in a series of decisions which started with the emperor Antoninus Caracalla and
continued down to Constantine:
C 10 391 Imperator Antoninus. Cum te Byblium origine, incolam autem apud Berytios esse
proponis, merito apud utrasque civitates muneribus fungi compelleris. * ANT. A. SILVANO. *<A
XXX >.
C 10 39 3 Imperator Philippus. Filios apud originem patris, non in materna civitate, etsi ibi nati
sunt, si modo non domiciliis retineantur, ad honores seu munera posse compelli explorati iuris est.
* PHILIPP. A. PATROCLO. *<A XXX >.
C 10 39 4 Imperatores Diocletianus, Maximianus. Origine propria neminem posse voluntate sua
eximi manifestum est. * DIOCL. ET MAXIM. AA. SECUNDO. *<A XXX>.
C 10 39 5 Imperator Constantinus. Si quis vel ex maiore vel ex minore civitate originem ducit, si
eandem evitare studens ad alienam se civitatem incolatus occasione contulerit et super hoc vel
preces dare temptaverit vel qualibet fraude niti, ut originem propriae civitatis eludat, duarum
civitatum decurionatus onera sustineat, in una voluntatis, in una originis gratia. * CONSTANT.
A. AD MAXIMUM VIC. ORIENTIS. *<A 325 PP. VIII K. IAN. PAULINO ET IULIANO CONSS.>.
 Amainproblemseemedtobethestatusofstudents,whowanderedarounddierentcitiesofthe
Empire.
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CARLOS AMUNÁTEGUI PERELLÓ
When, eventually, Roman legal rules re-appeared at the beginning of the
twelfth century, the Glossators quickly extracted legal rules from the ancient texts.
Thedierentpassages treatingcitizenship andresidencein the CorpusIuris were
identiedandcommentedoninanattempttogiveasynchronicsensetowhatwas
essentially a group of diachronically diverse rules. On the one hand, there was the
concession of Roman citizenship to all inhabitants of the Empire, while – on the other
hand – there was a set of rules that distinguished between people’s origin (origo).
In this context, the glossator Azo commented that a person could be a member of a
city (municipes, from munus, burden, to share the burdens) by birth, liberation or by
option. This membership was his real citizenship.20
Although the old Roman Empire had dissolved into dierent kingdoms
hundreds of years before, during the Middle Ages there was still a sense of unity
which involved political, legal and religious dimensions. There was one law – the
recently re-discovered Roman law that was called the ius commune; one Emperor
– the German Emperor, who was also King of Italy and crowned by the Pope; and
one Church.
During the later Middle Ages, a new conception of the relationship between
sovereign and territory emerged, one where each king would hold the sole legal
authority in his kingdom, well beyond the grasp of the German emperors, who would
be stripped of their universal aspirations and considered kings only of the lands they
could control.
In this context, Baldus from Ubaldi, a fourteenth-century commentator, explicitly
stated that the Emperor could not rule over those who were not his direct subjects21
and could not impose rules on those which were not under his allegiance.22 As far
as allegiance was concerned, it was addressed in a new fashion, albeit on the basis
ofinterpretingtheoldtexts.Baldusestablishedadierencebetweenthecitizensby
origin and those who could acquire citizenship by other means.23 Those who were
citizens by origin were considered natural citizens (cives naturales). He stated that
citizens by origin were those who were born in a city.24 Therefore, if someone was
born in Florence, he was Florentine by origin.
20 Azonis, Ad singulas leges XII librorum Codicis Iustinianei, 1596, 1097: Municipes aut nativitas
facit, aut manumissio aut optio. Et dicuntur propie municipes, quasi muneris participes in civitatis
sic recepti, ut munera nobiscum facerent … tunc municipes dicamus cuiuscunque civitatis, ut puta
cives Campanos, Puteolanos …
21 Baldo Ubaldi, Ad singulas leges XII librorum Codicis Iustinianei, 1577, 5: Imperator non imponit
leges nisi subditis.
22 Idem at 6: Imperator nec de iure, nec de facto possit imponere legem non subditis.
23 Baldo Ubaldi In primam digesti veteris paterm commentaria, 1577, 33.
24 Baldo Ubaldi Ad singulas leges XII librorum Codicis Iustinianei, 1577, 278: In loco originis, et
in colatus, cogitur quis subire onera … Nota ex eo, quod dicit, Biblium ex origine, quod ítem est,
quod dicere Florentinum, et natum de Florentia, quod declara, ut plene dixi in l.j. ad munic …
De incolis, et ubi quis domicilium habere videtur. Et de his, qui studiorum causa in alia civitate
degunt.

7
In this regard the new states that emerged in Western Europe systematically
adopted this rule, which would some centuries later came to be called ius soli.
Following Baldus’s doctrine, any man born in the territory of a kingdom became its
citizen.
Already in the thirteenth century, the kingdom of Castillia established that the
law of the land was mandatory even for foreigners.25 Even more, it expressly stated
that a man was a natural citizen of the place where he was born.26 When Spain came
to be a state after the marriage of Elizabeth and Ferdinand, these rules remained in
force, and the ius soli became the law of the land and remained so until the beginning
of the nineteenth century.27
In France the situation was similar. In 1315, by a royal decree of Louis X, it was
established that by natural law whoever was born in France, was to be a Frenchman,28
thusfollowing thedoctrineof Baldus.In 1515, thiswas conrmedbya decision
of the Parliament of Paris.29 During the eighteenth century the doctrine was well-
established and Pothier30 summarised it as follows:
The citizens, the true and natural French, following Bacquet’s denition, are those born
within the limits of the French dominions.
England, with the well-known case of Calvin v Smith in 1608,31 adopted the very
same rule, establishing that whoever was born in the territories under the dominion of
the Engish king was English. Whether the rule was a reception of the ius commune or
a parallel development of English law, remains to be settled. Anyhow, Blackstone32
summarised the position as follows:
25 GregorioLópez,Las Siete Partidas Glosadas, 1555, 8: “Todos aquellos que son del señorío del
fazedor de las leyes, sobre las cosas que pone, son tenudos de las odedecer e guardar, e juzgarse
por ellas … E esso mismo dezimos de los otros.
26 Idem 68: “Por mayor tovieron los sabios antiguos aquella naturaleza que los omes han con la
tierra por nascer en ella.”
27 The Novísima Recopilación of 1805 stated a new rule. To become a churchman one had to be
born in the lands that belonged to the Spanish territories from Spanish parents (l 7, t 14, l 1
from the Novísima Recopilación). Nevertheless, during the early nineteenth century this rule
was interpreted as meaning that only men that were born in the Spanish territories from Spanish
parents were Spanish naturals. See Bello 1886: 107; Asso del Río & M de Manuel y Rodríguez
1806: 35; Tapia García 1828: 7; and Escriche 1875: 255.
28 See Dalloz & Dalloz 1840: 199.
29 Berdah 2006: 142.
30 1846: 17: Les citoyens, les vrais et naturels Français, suivant la dénition de Bacquet, sont ceux
qui sont nés dans l’etendue de la domination française.
31 Calvin v Smith 77 Eng Rep 377 (KB 1608). A man named Robert Calvin was born in Scotland
after its subjugation to the English Crown. When he died he left lands in England. If he was
considered English, he could leave them to his heirs, but because he was not born in England,
this issue came to trial. Eventually it was decided that whoever was born in the territories of the
Crown, was under the allegiance of the King, and therefore English (see Price 2013: 73-145;
Dumbraya 2014: l 537).
32 1826: 366.
RACE AND NATION

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CARLOS AMUNÁTEGUI PERELLÓ
Therstandmostobviousdivisionofthepeopleisintoaliensandnatural-bornsubjects.
Natural-born subjects are such as are born within the dominions of the crown of England,
that is within the ligeance, or as it is generally called, the allegiance of the king; and aliens,
such as are born out of it.
By the eighteenth century the common rule in Western European states was that
citizenship was attributed at birth according to the place where the person was
born. Baldus’s interpretation of the old Roman rules and the political requirements
of the emerging states were the two forces that informed this phenomenon. Still,
there were cases when the parents’ nationality was taken into account in order to
grant nationality to their descendants when they were not born in the territory of the
Crown. An example would be the French Parliament – a kind of appeal court – which
regularly conferred citizenship on this ground from the sixteenth century onwards.
This was, however, rather exceptional.33
Contrary to the belief of modern scholarship,34 citizenship was considered one
of the three statuses a person could hold during the Ancien Regime – the two others
being freedom and family status.35 Citizenship could not be changed36 and it was one
of the fundamental sources of rights and duties a person acquired at birth.
The system worked well. The largest and most important states of modern
Europe adopted it, and statelessness was next to impossible. Although the frontiers of
modern Europe changed from time to time, citizenship did not seem to be a pressing
matter, for the rules were so clear that the determination of citizenship through the
place of birth was even believed to be a rule of natural law. All of this would change
during the French Revolution.
3 Revolution and change
The French Revolution was the most important historical event during the last
two hundred years, and many important features were restructured during those
33 See Weil 2008: l 147; Berdah 2006: 142.
34 For instance, Weil 2008: I 100 states that “(f)rom this point on [the enactment of the French Civil
Code] nationality became a right attached to the person: like the family name, it was transmitted
by fatherhood; it was attributed at birth; it was no longer lost if its holder established residency
abroad”.
35 In most basic law books, which after the sixteenth century usually followed the model of the
JustinianInstitutes,thematterwastreatedinrelationtothedierentstatusapersonmighthold–
normallyintherstbook,rightafterfreedomandbeforefamilystatus.Thiscamedirectlyfrom
Romaninuence.Gaius’Institutes–andthereforeJustinian’s–treatscitizenshipattheveryend
ofhis discussionsaboutthestatus ofliberatedslaves.See, eg,theveryinuential seventeenth-
century text of Arnoldus Vinnius (1755) at 44: Institutionum Imperialium Commentarius which
wasthebasic text for rst-year studentsall aroundEurope andeven inthe SpanishAmerican
colonies.
36 C 10 39 4 Imperatores Diocletianus, Maximianus: Origine propria neminem posse voluntate sua
eximi manifestum est. * DIOCL. ET MAXIM. AA. SECUNDO. *<A XXX >.

9
fewstormyyears.Atrstglance,theius soli was not opposed to the revolutionary
ideals. As a matter of fact, its universal tone and overview was appealing for legal
intellectuals, although other principles were implemented in order to broaden its
scope. During the Revolution, together with being born in France or born to a French
father,residence– themere fact ofliving inFrance – becamesucient toclaim
French citizenship.37 In addition, according to the ideals of the Revolution some
of the most outstanding intellectual heroes of the time – people who had never
lived in France or had no apparent connection with the country – were granted
French citizenship on condition that they would live in France, as was the case with
Thomas Payne, George Washington and Jeremy Bentham, among others.38 Among
thedierentcriteriaforobtainingFrenchcitizenship,themostimportant–atleast
for the public eye – remained the place of birth. In the texts that aimed to educate
theFrench peoplepolitically,the denitionof aFrenchcitizen wasquite simple:
anybody who was born in France.39
Although later constitutions of the French Revolution somehow restricted the
right to French citizenship, the ius soli was still its main feature until the enactment
of the French Civil Code in 1804.40 Still, already during the discussions of the
Constitution of 1799 – the one written immediately after the coupe d’état that
empowered Napoleon – a new tendency emerged restricting French citizenship to
those who were born to French parents, thus leaving stateless a growing section of
the population.41 This would later be known as the ius sanguinis. Although this line of
thought was blocked on the eve of Napoleon’s rule, it later – during the composition
of the French Civil Code – returned, and eventually imposed itself against the French
legal tradition, the generous original aims of the Revolution, and even the wishes of
Napoleon himself.
37 In fact, the Constitution of 1791 even gave citizenship to those who were descendants of people
expelled from France for religious reasons. Article 2, which covers the problem, states as follws:
Article 2. - Sont citoyens français:
- Ceux qui sont nés en France d’un père français;
- Ceux qui, nés en France d’un père étranger, ont xé leur résidence dans le Royaume;
- Ceux qui, nés en pays étranger d’un père français, sont venus s’établir en France et ont prêté
le serment civique;
- Enn ceux qui, nés en pays étranger, et descendant, à quelque degré que ce soit, d’un Français
ou d’une Française expatriés pour cause de religion, viennent demeurer en France et prêtent le
serment civique. See Brubaker 1993: 6; Weil 2008: l.189.
38 Berdah 2006: 143; Weil 2008: l.200.
39 D. Quels sont ceux qu’on appellé en France citoyens R. Tout homme né et domicilié en France
àgé de 21 ans accomplis, tout étranger àgé de 21 ans accomplis qui domicilié en France depuis
d’une année. Anonimus (1793-1794=2nd year of the Republic): 5.
40 See the Constitutions of 1793, art 2; 1795, art 8; and 1799, art 2.
41 Later known as the ius sanguinis: the term comes from the middle of the nineteenth century, from
the work of the Exegetic School.
RACE AND NATION

10
CARLOS AMUNÁTEGUI PERELLÓ
The coupe that took the young general to power (9 Nov 1799) was backed by
many of the leading gures of the Revolution, among whom Emmanuel-Joseph
Sieyès was one of the most conspicuous. A new Constitution was to be enacted
in order to give legitimacy to Napoleon’s rule. Nevertheless, conicts emerged
between Napoleon and Sieyès regarding this legal document. Sieyès wanted a fairly
balanced Constitution that would not grant absolute power to any man or institution,
butNapoleon had adierentopinion. Finally, Sieyèslostthe struggle andhadto
abandon his propositions, leaving the way open for the new Napoleonic Constitution.
Among Sieyès propositions was granting French citizenship – at this time the term
“nationality” was not in use42 – to those who were born either in France or abroad
to a French father.43 This proposition was opposed by Napoleon himself, with the
backing of Pierre Daunou44 who supported the traditional notion of the ius soli.
Finally, article 2 of the Constitution of 1799 stated as follows:45
Any man who was born and has residence in France, who, having become twenty-one years
old, inscribes in the civic register of his communal register, and who has since stayed a whole
year in the territory of the Republic, is a French citizen.
Thearticledoesnotdenenationality,butcitizenship.Atthetimecitizenshipwas
understoodasthe rightactivelytoparticipate inpublicaairs,supposing thatthe
citizen had also the status of national. The article was understood as granting French
nationality to those born in France, while it gave citizenship to those who met the
other requirements, namely being a male of at least twenty-one years of age who had
performed the required inscription and lived in France for a year.46
Shortly thereafter, during the discussion of the French Civil Code, the problem
re-emerged. A commission to draft the Code was appointed in 1800, comprising
François Denis Tronchet, president of the Court de Cassation, Jean-Étienne-Marie
Portalis and Félix Julien Jean Bigot de Préameneu. The work of this commission
was discussed with the Conseil d’État, where Napoleon himself participated in the
discussion, together with Théophil Berlier, Antoine Jacques Claude Joseph (Compte
de) Boulay de la Meurthe, and Jean Jacques Regis de Cambacérès who had already
drafted several Civil Codes and was the second consul with Napoleon.
During the session of 14 Thermidor of the ninth year of the Revolution (1 August,
1801)47 the Conseil d’État discussed the relevant article (7) regarding nationality.48
42 See Weil 2008: l 100.
43 Idem l 299.
44 Idem l 304.
45 Article 2–Tout homme né et résidant en France qui, âgé de vingt et un ans accomplis, s’est fait
inscrire sur le registre civique de son arrondissement communal, et qui a demeuré depuis pendant
un an sur le territoire de la République, est citoyen français.
46 Ngaire Heuer 2007: 129; Weil 2008: l 282.
47 Weil(2008)givesadierentdate,namely25Jul1801,but14thThermidoristhedatethatappears
in the Conseil d’État’s archives. See Weil 2008: l 304.
48 See Conseil d’État 1841: 12.

11
Tronchet proposed that only the son of a Frenchman was to be French, whether
he was born in France or in a foreign country. This proposition was immediately
rejected by the Council. Cambacérès pointed out that an abandoned child would not
bear any nationality. Boulay stated that the Constitution already granted the right of
being French to those who were born in France, even from foreign parents. Napoleon
proposed to replace the article simply by the following:49 “Any individual born in
France is French.” Tronchet defended his view by arguing that imposing French
nationality on anyone whose parents were not French just because he was born in
French territory, would be unfair and against the established principles of civil law.
Napoleon pointed out that a child born in France would have a French upbringing and
that as such would make him French. Tronchet’s position was swiftly rejected and the
Conceil d’État adopted Napoleon’s view. The Conceil d’État’s original proposition
contained both the ius soli and the ius sanguinis to grant French nationality at birth.
The draft Civil Code had to be approved by the Tribunat, an assembly that, among
other duties, was tasked to oversee the legislative process. It was presided over by
Pierre Daunau, the same man that had already aided Napoleon to gain approval of the
1799 Constitution. Accordingly, everything was supposed to go smoothly. However,
it did not. There was strong opposition by the Tribunat to many of the propositions
contained in the draft. The opposition to the ius soli was headed by Joseph-Jerome
(Compte de) Siméon, who compiled a report on the matter.50 Siméon argued that
while the son of an Englishman born in France would be considered French, the
son of a Frenchman born in England would not necessarily be considered English.
He argued that this so-called Frenchman could still take his wealth back to England
at any time.51 According to Siméon feudalism was linked with the ius soli, and that
wouldmerelybeasideeectoffeudalism.52 Ultimately the rule was rejected and the
commission had to revert to Tronchet’s proposition. The text was again presented to
the Tribunat and approved on 18 March 1803 with ius sanguinis as the only criterion
to confer French nationality at birth.53
49 “Tout individu né en France, est Français” in Conseil d’État 1841: 12.
50 The chapters of the French Civil Code were presented to the Tribunat on 11th Frimaire and a
commission was formed to analyse the matter on the next day, manned by Boisjolin, Boissy,
Caillemer, Chabot, Siméon, Thiessé and Roujoux. A report from the commission was presented
on the 25th of the same month by Siméon, while the discussion continued on 5th NivÔse, with
arguments from Malherbe supporting the ius soli.
51 See Coin-Delisle 1865: 225.
52 Weil2008:l395.ThecompletereportisavailableinMavidal&Laurent1864:165.According
to Simeon feudalism was linked with the ius soli. He does not explain in which way, but he states
so expressely. His reasoning probably pointed to the fact that during the Anciént Régime the ius
soli was the prevalent form to acquire French citizenship and because he believed that the idea of
a French racial nation was more modern.
53 Weil 2008: l 415.
RACE AND NATION

12
CARLOS AMUNÁTEGUI PERELLÓ
It is not easy to recount developments between 1799 and 1803, when the
principle of ius sanguinis emerged and became the dominant feature of the new
French legal system. Up to then, this principle was universally adopted by all
European powers and had the general approval of leading political thinkers of the
time.54 Most of them did not give the matter much thought, while legal scholars
usually accepted Baldus’ interpretation of Roman texts as the standard rule on the
matter.55 It has been pointed out that it was Tronchet’s background as a lawyer (who
had pleaded in favour of the ius sanguinis during the old regime for his clients) and
his respect for Roman law that would explain his approach favouring the exclusivity
of the ius sanguinis.56 However, his preference for the ius sanguinis should not have
excluded the ius soli, especially against a tradition that was deeply ingrained in the
predominant conception of the modern state.
Thereare probablyother motivesthat might have inspired the nal decision
about the exclusion of the ius soli from the French Civil Code. While Napoleon’s
cannons were conquering Europe, a new and dark science quietly emerged in the
European panorama. It whispered black words to its intellectuals and gave a whole
newperspectivetoanoldprejudice,namelyscienticracism.
4 Scientic racism
Racism is not new to the Western mind. Many kinds of prejudices have been built
into the long history of Europe, and they were eventually transmitted worldwide
with the expansion of European civilisation during the sixteenth and seventeenth
centuries. Some of the most illustrious thinkers of the Enlightenment displayed a
rather crude racial perspective.
OneoftherstandmoreinuentialideasaboutraceinFrancewassystematically
put forward by Henri (Compte) de Boulainvilliers in his Histoire de l’Ancien
gouverment de la France (1727). His central thesis was that the French nation
consistedoftwodierentraces,namelyaGermanicracethat descended from the
Francs which formed the core of the nobility, and a Gallo-Roman race that was
subdued by the Germanic race and that was predominant among the commoners
or third estate. For him, the French nation was a sort of union, founded by the
king, between the Francs (in his language simply the French) and the Gauls.57 The
54 The only exception we have been able to nd was Pufendorf, who believed in a contractual
theoryoftheState,wherethedescendantsoftherstcitizens–thosewhohadacceptedthesocial
contract to form the city – would be properly called citizens. See Pufendorf 1682: 126 = 2 6 13.
55 We should say, anyhow, that some legal scholars pointed out that Baldus’ interpretation was
awedandthatRomancitizenshipwastransmittedatbirthregardingthefather’scitizenship.See,
eg, Cujacius (1663), o. 33 Recte Romanum interpretamur Roma oriundum qua appellatone, et in
jure nostro semper notatur origo paterna, non origo propia et natale solum.
56 Weil 2008: l 350.
57 See de Boulainvilliers 1727: 32-36.

13
dominant position of the aristocracy was founded on the conquest of Gaul by the
Francs. Miscegenation, which commenced with the coronation of Huge Capeto,
endangered the stability of the nation. His views became common in the eighteenth
century and even made their way into Diderot’s Encyclopédie.58
During the eighteenth century, many new scientic disciplines took root in
Europe. Before, most of the organised knowledge, whether about nature or mankind,
was considered to be part of philosophy. However, after the inexplicable successes
of Modern Europe in physics and cartography, new sciences emerged, with their
ownmethodsandobjectsofstudy.Manybranchesofphilosophywerecutoand
a whole range of new sciences emerged. This is the era of Lavoisier, the father of
modern chemistry; of Adam Smith, the father of modern economy; and also of Carl
Linnaeus,thefatherofscientictaxonomy.
Carl Linnaeus was a well-recognised scholar who made a major contribution to
biology by classifying all known natural species according to gender. His major work,
Systema naturae per tria regna naturae, published in 1735, was divided into three
parts, which corresponded to the three natural kingdoms, namely one for minerals,
one for vegetables, and one for animals. For the animal kingdom, he devised a
classicationofallthedierenttypesofanimalsknowntoman,includingagender
for the mammals (mammalia),divided intodierent branches,one ofwhich was
occupiedbytheprimatesamongwhichonecouldndman(homo).59 Humans were
classiedintosixdierenttypes:Ferus (wild), Americanus (American), Europaeus
(European), Asiaticus (Asian), Afer (African) and Monstruosus (monstrosities).60 To
each human type, a set of characteristics such as skin colour, other physical features
and moral peculiarities, was attached. We do not have to go into the particularities of
this distinction, but we might, for instance, say that an Afer was black, phlegmatic,
clumsy and ruled by caprice, while the Americanus was described as being choleric,
dark-skinned, easy to laugh and ruled by custom, while the Europeaus was white,
very smart, and ruled by ceremonies.
Although the features contained in these human types were not new, it is
importanttopointoutthatthiswasthersttimethatadescriptionofhumanraces
wasembeddedinascienticwork–onethatplacesmaninitsnaturalcontextasone
of many other species according to objective standards such as geography and skin
colour. Racism suddenly became part of a new science that was being developed by
one of the brightest minds of European Enlightenment. The consequences would
over time become devastating.
58 In fact, in the voice Française you can nd a quick overview of Boulainvilliers’ theory
distinguishing between the two races that constitute the French nation.
59 Linneaus 1757: 18.
60 Idem20-22.According toBethencourt, intherstedition of 1735 ferus and monstrosus were
not included, and neither the descriptions that followed in the edition we worked with. See
Berthencourt 2013: l 6121.
RACE AND NATION

14
CARLOS AMUNÁTEGUI PERELLÓ
Thisnewscience was takenupbyone ofthemostinuential thinkersof the
French Enlightenment, Georges-Louis Leclerc, compte de Buon (1707-1788).
As one of the youngest members ever of the French Academy and Director of the
Jardin des Plantes, Buon had an impeccable scientic reputation. He wrote an
astonishing natural history in thirty-six volumes, which elevated him to one of
the most prominent scientic gures of his generation. His work inuenced the
Encyclopaediaof Diderotand had ahuge eecton theEuropean Enlightenment.
One of his most controversial works concerned men and human races, the
Histoire naturelle de l’homme et de la femme. There, following Linnaeus’s lead,
heclassiedmen accordingtoraces,featured byskincolour,generalbody shape
and moral character.61His work constitutesa vastdescription ofdierent human
typesondierentcontinents,sometimesdescribingthemalmostcountrybycountry.
Racialfeatureswere, accordingtoBuon,the consequencesofclimate, food and
costumes.62 Miscegenation was one of the main features that might aect a race,
either improving or weakening it,63 and creating new nations, as in the case of the
Tartars who were a mixture of Chinese and Russians.
Racial degeneration and interbreeding was a much-debated topic in the
intellectualcirclesoftheEnlightenment.EvenKant,undertheinuenceofBuon,64
wroteaseriesofarticlesonrace,wherehepointsthatthemaindierencebetween
races was that when they mixed, they produced half-breeds, while when members of
thesameraceinterbred,theyconferredontheiro-springrandomlythefeaturesof
each parent.65 He explicitly opposed racial mixing and feared it.66
Montesquieu was also inuenced by this science. He opined that dierent
climatesaectedthephysicalandmoralconstitutionsoftheinhabitantsofaregion,67
causing people from cold climates to be bolder and stronger than those from warm
climates. According to his analysis, people from India would be “naturally a
pusillanimous people”,68 and that these matters should be taken into account for
successful legislation.69
Although there existed an intellectual climate that favoured the inclusion of
racial ideas in legislation, we should nevertheless evaluate some of the ideas of the
proposers of the ius sanguinis as the sole means of becoming part of a nation in order
61 Leclerc(Compte)deBuon1834:173.
62 ForageneraldescriptionseeBerthencourt2013:l6153.
63 Leclerc(Compte)deBuon1834:175.
64 Mikkelsen 2013: l 266.
65 See,eg,his1788-essay“OntheUseofTeleologicalPrinciplesinPhilosophy”wherehedenes
races as common lines of descent, and then expressly treats the matter of miscegenetion. For a
recent translation see ideml4306.
66 Idem l 328.
67 Montesquieu 1772: 283-286.
68 Ibid 283-286.
69 Idem 379.

15
to establish if there had been a racist motive. This is, admittedly, slippery ground,
for often the motives are not clearly stated, but indirectly proposed or related to
othermatters which wouldsomehow aectthe legislative position. For instance,
Tronchet, the main defender of the ius sanguinis in the Conceil d’État, cannot be
directly linked to any of these racial theories. He was a rather conservative man,
who defended Louis XVI as a lawyer and before the Revolution pleaded many cases
in favour of the application of the ius sanguinis for his clients. Although he had a
keen interest in science, this does not necessarily mean that he supported the racial
theories of his time.
Thematter issomehow dierent whenanalysing theworks ofSieyès.In his
famous essay, Qu’est-ce que le Tiers état, he relies on Boulainvilliers’ thesis to deny
the validity of the right of conquest as a mean of justifying the nobility’s claim
over the commoners or Third Estate.70 He explicitly rejected the view that the
Franks’ conquest of Gaul would confer on the aristocracy a right to dominate the
Gallo-Roman population. Therefore, according to him, the Third Estate, namely the
commoners in the nomenclature of the Ancient Regime, could reclaim their rights
and demand a new Constitution.
Although Sieyès71 holds and defends a legalistic idea of the nation, where having
acommonlawandacommonlegislativepowerwouldbeitsdeningfeatures,he
also seems to have a somehow naturalistic idea of the nation, where the nation would
pre-exist any positive rule and would emerge directly from the natural order.72 In
fact,inhavingadierentlegalorderandlegislativerepresentation,thearistocracy,
namely the Franks, would exclude themselves from the nation.73 In this sense, the
Third Estate would really be the only nation in France, and the descendants of the
Franks –the nobles – should not be regarded as French citizens.74
70 Sieyès 2002: 8: “Que si les aristocrates entreprennent, au prix même de cette liberté, dont ils se
montreraient indignes, de retenir le peuple dans l’oppression, il osera demander à quel titre. Si
l’on répond à titre de conquête, il faut en convenir, ce sera vouloir remonter un peu haut. Mais le
tiers ne doit pas craindre de remonter dans les temps passés …”
71 “Qu’est-ce qu’une nation? Un corps d’associés vivant sous une loi commune et représentés par
la même législature” (idem 5).
72 “la nation se forme par le seul droit natural. Le gouvernement, au contraire, ne peut appartenir
qu’au droit positif” (idem 54).
73 “Ainsi, ses droits civils en font déjà un peuple à part dans la grande nation. C’est véritablement
imperium in imperio” (idem n 68 5). “Il faut entendre par le tiers état l’ensemble des citoyens qui
appartiennent à l’ordre commun. Tout ce qui est privilégié par la loi, de quelque manière qu’il
le soit, sort de l’ordre commun, fait exception à la loi commune, et par conséquent, n’appartient
point au tiers état” (idem 6).
74 Idem 8: “La nation, alors épurée, pourra se consoler, je pensé, d’être réduite à ne se plus croire
composée que des descendants des gaulois et des romains. En vérité, si l’on tient à vouloir
distinguer naissance et naissance, ne pourrait-on pas révéler à nos pauvres concitoyens que celle
qu’on tire des gaulois et des romains vaut au moins autant que celle qui viendrait des sicambres,
des welches et autres sauvages sortis des bois et des étangs de l’ancienne Germanie?”
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Although Sieyés is arguing for equality, there is a racial element in his argument,
whichderivesdirectlyfromoneoftheearliesttheoriesofscienticracisminFrance.
This might explain his preference for ius sanguinis in the discussions for the 1799
Constitution.
In the case of Siméon, the main antagonist of ius soli in the Tribunat, the link is
somehow stronger. In his speech in the Tribunat there are only faint links to race, such
as when he argues that the son of a Frenchman who has renounced his nationality
should be immediately admitted to citizenship because “he has French blood in his
veins”.75 It seems clear that he is afraid of the eects that foreign people would
have on the French population, for he stated that “we seriously expose ourselves to
receive those without a homeland who want to enrich themselves with our rights,
while infecting us with their vices”.76 Some nineteen years later, the same man
vehemently criticises the liberation of slaves, saying that the tree of liberty could
produce poisonous fruit if its not properly cultivated.77 Granting slaves immediate
freedom was an excess, a simple fanatisme de la liberté.78
During the second session where the matter was discussed, on 5th NivÔse, the
tribune JA Perreau displayed a disturbing idea of nationality79 where a nation would
be the union of several families. These families can bond because they belong to a
race, which is the base of any nation.
The arguments that Malherbe raised against propositions such as these, claiming
that they were contrary to the French legal tradition and revolutionary principles,
quotingMontesquieuandAdamSmith,seemedinsucienttostemthetide.
5 Conclusions
Although we cannot directly link scientic racism with the supporters of the ius
sanguinis, the intellectual climate that favoured racial distinctions conferred a
measureofscienticblessingonit.Lateeighteenth-centuryFrancehaddeveloped
a set of old prejudices into a fully-edged biological theory that attempted to
75 “Son père a pu perdre sa qualité, mais il n’a pu alterer tout à fait le sang français qui coule dans
les veines de son enfant”, J.-J. Siméon, Discours sur la Joussance de droits civils, in Mavidal &
Laurent 1864: 165.
76 “Nous serions exposés à recevoir parmi nous ceux qui, n’ayant pas de patrie, voudraient s’enrichir
de nos droits et nous infecter de leurs vices.” J.-J. Siméon, Discours sur la Joussance de droits
civils, in Mavidal & Laurent 1864: 166.
77 “…l’arbre de la liberté ne produit des poisons et la mort que par la faute de ceux qui le cultivent”
(Siméon 1824: 183).
78 Idem 186.
79 “Dans chaque famille d’abord, el longtemps après, dans les premiers établissements de ces
sociétés plus nombreuses, formées, sous le nom de nations, de la reunión des familles, ce n’était
qu’à des souvenirs xés par la continuité des aections et des usages que l’on conait le soin de
conserver les distinctions des individus et des races” in Mavidal & Laurent 1864: 269.

17
distinguish and classify men. The ius sanguinis, the right of the blood, had gained
a greater impetus to becoming the foundation of citizenship in France during the
Napoleonic era and in the rest of Europe afterwards.
Duringthersthalfofthenineteenthcentury,giventheinuenceoftheFrench
Civil Code, the ius soli was systematically removed from most European legal
systems80and replacedwiththe modernandscientic ius sanguinis.81 During the
twentieth century, the ius soli abated even more once England departed from its
tenets.82Althoughduringtheearlyyearsofthetwenty-rstcentury,someexceptions
are still to be found, especially with the adoption in Germany of elements of the ius
soli into its legislation,83 other countries, like Denmark, abolished it altogether in
2004, except for Nordic people.84
With the growing phenomenon of immigration, the ius sanguinis-rules will only
increase the number of stateless people that will be living in Europe, something
essentially contrary to article 15(1) of the Universal Declaration on Human Rights
of 1948 and article 1 of the 1961 Convention on the Reduction of Statelessness.
By contrast, it is virtually impossible to speak of the integration of people whom
the relevant legal system considers not to belong to the country where they were
born. They are simply labelled as second or third generation immigrants. One might
wonder where they are supposed to have immigrated from if they might never have
travelled outside their home city and were born in the very state that denies them
citizenship.
In the Americas, the ius soli seems to be the dominant principle. The rule was
inherited from their old colonial masters, from the common-law system in the United
States, and from the Siete Partidas in the case of Latin American countries. Although
these nations have experienced massive immigration throughout the nineteenth and
twentieth centuries, the challenges of immigration have been overcome. Probably
the ius soli played an important role in this process.
80 Thewaveofreformsdevelopedinparallelwiththeprocessofcodication,althoughsomecountries
which did not have a civil code, adopted the principle through miscellaneous legislation. The ius
sanguinis was adopted in most European states during the nineteenth century: Austria (1811),
Belgium (1831), Spain (1837), Prussia (1842), Italy (1865), Russia (1864), The Netherlands
(1888), Norway (1892) and Sweden (1894). See Weil 2001: 19.
81 In fact, when the rules of the ius sanguinis were to be reformed in France in 1881, the ius soli was
seen as a backwards relic of feudal Europe, foreign to the French traditions and modern science.
See Brubaker 1993: 11.
82 Since the reform of 1914, and especially with the 1981 and 1986 acts, British legislation has
been consistently undermining the application of the ius soli, to the point that what once was
considered a feature of British law is nowadays something oddly exceptional. See Cesarani 1996:
l1266.
83 Vink & de Groot 2012: l 121.
84 Idem l 222.
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