The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge Studies in Law and Society)

by John Torpey

On June 22, 1791, the city’s mayor issued an order enjoining the Parisian citizenry to permit the exit from the city of those equipped with passports, which he promised would be issued with “discretion and prudence.”20 Under these conditions, possession of a passport bore witness to the revolutionary state’s approval of movement by its bearer; it thus functioned as a “safe-conduct” of a kind that would later be associated only with movement into other sovereign jurisdictions, at least in times of peace.

Then, just a week after slamming shut the gates to departures of French citizens from France, the Assembly also decreed that foreigners and French merchants would be free to leave the kingdom. Before doing so, however, foreigners were to be in possession of a passport supplied by the ambassador from their own country or by the French ministry of foreign affairs, whereas the French merchants were required to obtain a passport from their own or the nearest district capital. In order to avoid a repetition of the sort of disguised escape attempted by the king, article 7 of the decree mandated that “all passports are to contain the number of persons to whom they are given, their names, their age, their description, and the parish inhabited by those who have obtained them, who are obliged to sign both the register of passports and the passports themselves.”

Not without reason, the revolutionary leadership regarded the émigrés – as potential enemies of the revolution in league with the king, reactionary priests and nobles, and foreign powers – as a profound threat to its survival.26 And of course there were many others who were viewed with suspicion, and hence as deserving of surveillance and sharpened control. A notion of “foreignness” underlay this attitude, but it was not the same as that now-familiar version that reflects the rivalries of narcissistic nation-states. In his famous pamphlet “What is the Third Estate?” of January 1789, the Abbé Sieyès had written of the nobility: “This class is assuredly foreign to the nation because of its do-nothing idleness.”27 This “political” rather than national definition of the foreigner owed everything to the fact that the revolution had burst upon the stage of world history by defining “the nation” principally in terms that excluded a slothful, parasitic nobility, rather than people from other countries.

29 Noiriel has written that the modern conception of the “foreigner” came into being with the French Revolution as a result of the elimination of feudal privileges on August 4, 1789, which formally created a national community of all French citizens.

This Act was, however, in inherent and insoluble tension with the Declaration of the Rights of Man and Citizen, which proclaimed the equality of all individuals and thus tended to promote the rights of foreigners as such.

In an important contribution to the newly proclaimed equality of French citizens, the revolutionaries began to move during this time toward the codification of a uniform national space in which goods and persons would be permitted to circulate freely. One of the first steps taken by the leaders of the revolution to obliterate local particularism in favor of national integration had been the creation of départements to replace the old provinces into which France had traditionally been divided. In

The first three “natural and civil rights” promulgated by the Assembly were relatively general provisions dealing with equality before the law. Then, the very first concrete “natural and civil right” guaranteed by the Constitution of September 3–14, 1791, was that of the freedom “to move about, to remain, [and] to leave.”

imposed in the June 21 decree barring departures.36 The decree as adopted stated that “there will no longer be any obstacles impeding the right of every French citizen to travel freely within the realm, and to leave it at will,” and specifically eliminated passports.

Flush with the glow of having set out a document recognizing the equality of all French citizens before the law, the revolutionaries were in an expansive mood that extended even to forgiveness for the émigrés. The records of the proceedings indicate that the members of the Assembly believed they were making a major contribution to the cause of human freedom when they abolished passport controls on the French people, which they viewed as part and parcel of the arbitrary power of the ancien régime.37 Soon,

The consequences were ominous. The emigres of yesterday met the emigres of tomorrow on the roads to the frontiers, and the latter outnumbered the former. Those who had hoped that the amnesty would inaugurate a phase of reconciliation were disillusioned and alarmed.38 There was reason enough for alarm; hostile armies of émigrés and their allies were massing beyond the Rhine.

In response, the Legislative Assembly – a newly constituted body with entirely different membership and perspectives than its predecessor – passed a decree on November 9, 1791, declaring all French persons gathered outside the borders of the kingdom to be under suspicion of conspiracy against the patrie.

intensify passport and other controls on foreigners. For example, the département du Nord issued regulations in mid-December 1791 requiring foreigners (étrangers) entering its villages and towns to present themselves to the authorities to have their passports checked and to receive (or be denied) permission to remain.

It was with little steps such as this that the definition of the “foreigner” during the revolution slowly drifted toward the notion that nowadays has come to be taken for granted: that is, a foreigner is someone from another country whose trustworthiness is questionable.

The matter of revolutionary hospitality toward foreigners had hardly yet been definitively decided, however. Only two weeks after the promulgation of the département du Nord decree, the philosopher Condorcet delivered himself of an eloquent speech insisting that France would never give itself over to a narrow-minded nationalism, even in time of war: The asylum that [France] opens to foreigners will never be closed to the inhabitants of countries whose princes have forced us to attack them, and they will find in its womb a secure refuge. Faithful to the commitments made in its name, [France] hastens to fulfill them with a generous exactitude. The dangers it faces may not permit it to forget that French soil belongs entirely to freedom, and that the law of equality must be universal. It presents to the world the novel spectacle of a nation truly free, subject to the rules of justice despite being caught up in the storms of war, and respecting everywhere and at all times with regard to all people the rights that are the same for all.

Brissot declared on December 31 that “the time has come for a new crusade, a crusade for universal freedom.”45 Whether this beautiful crusade was intended to install human freedom or French domination in the territories to which it advanced depended, however, on the eye of the beholder. In any case, many in France itself did not share Condorcet’s openness to outsiders – whether legal foreigners or mere “strangers” – as war loomed on the horizon.

Aside from merely authorizing domicile in particular places, certificates of residence were closely tied to the provision of public welfare, particularly pensions. A decree handed down by the Legislative Assembly in December 1791 required that anyone – with the exception of merchants appropriately vouched for by municipal authorities – receiving a variety of payments from the public purse had to produce a certificate attesting that he or she currently resided in the French Empire, and had done so without interruption for the previous six months.

Although they go unmentioned in the text of the decree, this measure was obviously directed at the émigrés, who were thought to have rendered themselves unworthy of public largesse during the previous six months by fleeing the patrie in its hour of need.

Le Coz was very much on the side of those who wished to restore passport restrictions. During the course of the parliamentary debate that his pleas initiated – a debate that extended over several days and generated considerable passion and eloquence – Le Coz would dub passports the “Argus of the patrie.”49 (In classical mythology, Argus was a monster with many eyes who was therefore regarded as a good watchman.) It is perhaps noteworthy that Le Coz coined this phrase almost simultaneously with Jeremy Bentham’s proposal in the early 1790s of what Karl Polanyi called Bentham’s “most personal Utopia,” the Panopticon.

To begin with, however, both sides in the debate recognized that the requirement that travelers be in possession of a passport entailed a certain presumption of guilt – a presupposition that travelers were up to no good and might be moving about under pretenses contrary to those deemed acceptable by the revolutionary regime.

In this view, the lack of an aveu was itself evidence of counterrevolutionary intent; the obvious remedy was to reassert and strengthen the authority of the state to authorize and regulate movement.

The hearts of some foreigners were “entirely French,” to be sure, but others were suspects, traitors prepared “to betray the sacred rights of hospitality.” Therefore, “without molesting foreigners too much,” the committee urged the Assembly to “watch them with the most scrupulous attention … to follow their paths and foil their plots.” In order to facilitate the achievement of these ends, all travelers within France were to have their passports visaed in every district, while those leaving the kingdom were to submit to this formality at the directory of the frontier département where they would be crossing the border.

The bill proposed penalties for those who refused properly to identify themselves to the state, for failure to do so “renders one culpable, manifests perverse intentions, contravenes the law.”

them. Workers without either means of subsistence or a sponsor were to be registered as vagabonds (gens sans aveu); those who failed to indicate a previous domicile as “suspicious persons” (gens suspects); and, finally, those shown to have made false declarations were to be identified as “ill-intentioned persons” (gens malintentionnés). The committee then recommended as an “indispensable condition” that every passport include an extract of the person’s municipal declaration. If the traveler is honest, his passport will be an advantageous document for him, and it will flatter him; if he is not honest, it is necessary that his passport will put him under surveillance throughout the Kingdom. … With this correspondence [of passport and municipal register], the law on passports will complement all the other measures already taken for the security of the realm.

the course of the debate, Jacobin firebrand Jean-François Delacroix expanded upon this notion, suggesting that the passport, far from entailing a presumption of guilt, was in fact a “certificate of probity” ensuring the security of those traveling in France.57 There was something to Delacroix’s view: if state authorities had the right to demand some independent verification of a person’s identity and some justification of his or her whereabouts, as Codet had insisted they did, possession of a document attesting to these matters would provide a certain security to the would-be traveler.

Once the genie of the state’s authority to identify persons and authorize their movements is out of the bottle, it is hard to get him back in. And, from long years of experience under the ancien régime, most of the French took for granted that that genie was loose in the world; perhaps, many of them must have thought, it had always been so.

Those opposed to the resurrection of passport controls took a sharply different view of the probable consequences of their restoration. Far from regarding the reintroduction of passport controls as a small price to pay for defending the revolution’s larger gains, these critics saw the resurrection of social control techniques characteristic of the ancien régime as a reversal of the newfound freedom that the revolution had inaugurated, and therefore as likely to undermine popular support for the revolutionary project. This view was expressed by Stanislas Girardin of the département of the Oise (north of Paris), a one-time pupil of Rousseau who moved from left to right in the course of the revolution. One of the most stirring and impassioned critics of the new passport law, Girardin besought his

nation that claims to have a constitution cannot enchain the liberty of its citizens to the extent that you propose. A revolution that commenced with the destruction of passports must insure a sufficient measure of freedom to travel, even in times of crisis.

Codet asserted that the vast majority of those who traveled were honest people who, without passports, had no way of demonstrating that they were such, nor of being certain that the people they met on the roads would be well-disposed toward them.

law sensed that they were on the defensive. Another deputy advanced a rather more creative response to the proposed law by turning its attack on vagabondage and brigandage into a justification for land redistribution: would it not be possible, he wondered, to give the itinerant indigent some of the lands lying fallow that were now in the possession of the nation as a result of the extensive confiscations of estates and Church lands? The landless poor would then have work and sustenance, and hence no reason for taking to the roads as they normally did in times of need.

Passport controls, moreover, would allow the national gendarmerie to ask “the unknown traveler, in the name of the law, ‘Who are you?’” The fundamental point here, as Gérard Noiriel has pointed out, is that “written documents [are] the quintessential instrument of communication at a distance,”61 and such means were necessary aspects of the development of a unified state before which all individuals stood equal, irrespective of where they came from.

In concluding his enthusiastic endorsement of the proposed passport law, Le Coz wondered aloud: “Had passports been required all along, how much less would we now have to bemoan the maneuvers of the aristocracy, the poisons of fanaticism, the crimes of the counter-revolutionaries?”

Part of the reason the king had been able to get as far as Varennes, of course, was that he was traveling – undescribed – as a servant in a passport issued to someone else (the Baroness de Korff). The practice of issuing passports for groups of persons had, according to Broussonet, “given complete liberty to bad subjects.”

This change had been urged by Delacroix, who insisted that this power be removed from the hands of the ministers who, in his view, were issuing the passports with which the émigrés were slipping off to Coblenz to join the enemies of the revolution.

In the end, under the influence of the siege mentality invoked by numerous speakers during the debate, the Assembly reversed a decision it had excitedly and unhesitatingly taken only a few months before. The atmosphere in which the Assembly adopted this course could hardly be better indicated than by Thuriot’s remarks on January 30, 1792, which were met with exuberant applause: “At this moment, we cannot deceive ourselves: there are conspiracies of every kind against us, and we cannot be too vigilant.” The forces favoring the restoration of controls – mostly from the revolutionary left – won out, and passport restrictions were reintroduced. Declaring that “the health of the Empire requires the most active surveillance,” the National Assembly mandated that everyone – whether French or foreign – traveling within the kingdom be in possession of a passport. Those wishing to leave French territory had to have a notation to this effect inserted into their passports by the authorities in their place of residence;

By the summer, with war against Prussia and Austria heating up and the problem of emigration persisting, the Assembly on July 28–29 adopted a further “Decree on Passports” entirely suspending the issuance of such documents for departure from France, except to certain selected groups distinguished mainly by their need to travel abroad for commercial purposes.

The foreigner, increasingly defined exclusively in national rather than local terms, was perceived more and more ipso facto as a suspect.

The passport restrictions on movement voted by the Assembly in early 1792 held sway for a number of months as France faced intensified hostility from within and without. Toward the end of the year, however, the deputies came around to the view that the restrictions on movement within France, at least, were proving counterproductive. In response to claims that the provisioning of Paris was suffering greatly under the restraints on “the circulation of goods and people,” the Assembly in early September adopted a decree reestablishing “free circulation” and abolishing the clauses of the law of February 1–March 28, 1792 requiring a passport, except within ten lieues from the borders or from enemy-occupied territory.72

Despite the Assembly’s decisive steps to guarantee free circulation when it adopted the new constitution in September 1791, those involved in constructing the new regime in France recognized that they had to be in a position to “embrace” the subjects of the state when the need to do so arose. Accordingly, it was necessary for the state to be in control of birth registries that until then had been in the hands of the parish priest. Because the Catholic Church was principally concerned to tend to its own flock, however, the church registers frequently ignored the births of Jews, Protestants, and others. This simply would not do for modern states, which – unlike the Church – are territorial and membership organizations that must thus be able to distinguish between members and nonmembers, those with rights of access to the territory and those lacking them. On September 20, 1792, the government therefore decreed the establishment of civil status (l’état civil), a title denoting “standing” within a constituted political order. “From that moment on,” Gérard Noiriel has written, “an individual could only exist as a citizen once his or her identity had been registered by the municipal authorities, according to regulations that were the same throughout the national territory.”75 In doing so, the French state enhanced its capacity to “embrace” its citizens and to keep track of them in order to achieve its aims. On the same day, ironically, Goethe famously declared that “this date and...

In late October 1792, the Convention banished the émigrés from French territory “in perpetuity” and declaed the death penalty for those who contravened the law.77 Shortly thereafter, the émigrés then on French territory were directed to leave the country.78 The lot of the émigrés, irrespective of why they had left France, had taken a decided turn for the worse.

purpose of these restrictions on access to passports for departure, according to the law’s proponent, was “to stymie the culpable maneuvers of the ill-intentioned, and to keep at their posts those citizens who want to permit themselves too easily to leave French territory at a time when the patrie may have need of their presence.”81 In short, the French state needed to be able to lay hold of miscreants, and to keep hold of its potential allies who might be overcome with Wanderlust at a time that the state regarded as inconvenient. Later emendations of passport requirements would frequently recur to this law as the touchstone from which they took their cue. Soon, however, this relative laxity would become unacceptable to those at the helm of the Convention, who sought to gain firmer control of affairs.

February, moreover, the pages of Le Moniteur indicate that a specifically revolutionary form of documentation, the so-called certificats de civisme, had begun to proliferate uncontrollably, and efforts were made to stem their availability. Introduced on November 1, 1792, the certificats de civisme had been made a requirement for all government functionaries with a law of February 5, 1793, and by June they were obligatory for all pensionnaires de la République. Such certificates could be denied to persons revealing a liking for foreigners or foreign customs. As attestations of revolutionary sentiment with significant advantages to those holding them, the certificats de civisme could be used as a way to terrorize those who did not have them.