Читать книгу Divided Rule - Mary Dewhurst Lewis - Страница 13

TWO

Ending Extraterritoriality?

THE FRENCH PROTECTORATE OVER Tunisia was supposed to guarantee that no border skirmishes by so-called barbaric tribes such as the Khmirs would again threaten Algeria. But the activity of the Khmirs faded from view as quickly as it had been summoned as a casus belli, and then France faced a boundary problem of a different sort: the extraterritorial jurisdiction of other European states.¹ It turned out that conquering Tunisia militarily and putting down the local rebellions that ensued had not ensured complete French authority over the country. True control would require that the French prove themselves masters not only over the bey’s subjects but also over the several thousand “Europeans,” particularly Italians and Maltese British subjects, who called Tunisia home.² Thus, French authorities endeavored to subject European nationals living in the protectorate to a common rule of French law by substituting French courts for the various consular courts that had operated under the capitulations.

While it took three weeks for French military forces to occupy Tunisia, it took almost three years for civilian authorities to negotiate a settlement with European powers to bring their subjects under the umbrella of French legal institutions, and even this left complete hegemony over Tunisia’s Europeans out of France’s reach. European consular courts were closed, and new French courts with jurisdiction over all Europeans operated in their stead. In order to secure this reform, however, France had to grant concessions to the same foreign governments whose influence it sought to diminish. Moreover, the closure of European courts did not bring an end to Tunisia’s legal pluralism; though a single French court now replaced European consular courts, it still adjudicated multiple, and sometimes conflicting, laws.

The perpetuation of legal pluralism in the protectorate had profound consequences for France’s efforts to establish dominance over Tunisia because law was the means by which many quotidian social conflicts were worked out among Tunisians of all backgrounds. In short, the institutional changes made by French leaders in the early years of protectorate rule diminished but did not eliminate the extraterritorial sovereignty exercised in Tunisia by France’s European rivals. This was one of many limitations on French sovereignty that would shape the protectorate’s history for decades to come. Of course, French authorities had no idea how troublesome the new system would become when they first proposed it. At the time, the Quai-d’Orsay’s energy was focused entirely on securing the international recognition of judicial reforms that it hoped would mark a definitive end, rather than a new beginning, to its troubles with European powers in Tunisia.

• • •

On 30 September 1882, the Havas news agency circulated a wire story announcing that Britain had consented to giving up the capitulations in Tunis.³ In the ensuing month, this news produced consternation both in Tunisia and in Europe—one British journalist even suggested that abolishing the capitulations amounted to France’s “quasi-annexation” of Tunisia.⁴ The Havas dispatch, however, was not entirely accurate. The truth was that French leaders had begun negotiating a new settlement with an ailing bey over the summer (he would die in October), pledging to absolve him of his tremendous financial burden in exchange for the promise of reforms, including the establishment of French courts alongside the existing Tunisian ones. Although the new “treaty project” had yet to be signed by France or ratified by parliament, the Quai-d’Orsay had begun pourparlers with a select group of European powers to request that they close their consular courts. Great Britain was indeed among them, but no one had yet given formal consent.⁵ And Italy, apparently, had been left out of the loop almost entirely.⁶

Italy’s leaders were not so much surprised by this development as worried about its implications. In May, on the first anniversary of the Bardo Treaty, Italy’s consul in Tunis had predicted that France would take this step, noting that “the elimination of the nominal native sovereignty in the finance commission and the capitulations” was, to his mind, the “only thing missing from complete annexation.”⁷ Though expected, French efforts to end the extraterritorial rights of European powers in Tunisia hardly could be welcomed by the Italian government, particularly because these rights were at the very center of ongoing disputes between Italy and France. French military authorities recently had arrested a number of Italian nationals in Tunisia and subjected them to a court-martial. Most notorious was the case of a Sicilian barber named Paolo Meschino. While some accounts hold that Meschino had struck a French soldier one August evening, more indicate that he had instead taken the soldier’s sword off his person.⁸ Meschino then either turned over the sword immediately to French gendarmes or presented it to the Italian consul as a sort of trophy.⁹ According to Italian reports, no complaint was filed at the time of the incident by either party.¹⁰ Nonetheless, once military authorities learned of it, they not only punished the soldier for failing to defend himself but also apprehended Meschino, who was subsequently judged by the conseil de guerre in September and sentenced to a year in prison.¹¹

In the days following Meschino’s arrest, numerous Italians living in Tunis protested his treatment, some by sending petitions to members of Italy’s parliament recounting that Meschino had merely reacted to a drunken French soldier’s insulting behavior toward some (presumably Italian) women in public, others by publicly demonstrating in front of the consulate and insisting that they would act on their own in Meschino’s defense if the Italian government failed to do so.¹² Italian residents of Tunisia may have been particularly exercised by Meschino’s arrest because it came on the heels of conflicts during the spring over unauthorized arrests of Italians by French military officials in the city of Kairouan, and, like these incidents, it raised the question of the application of the capitulations.¹³ After Italy’s protests that such arrests constituted “provocations,” protectorate officials affirmed that French security forces, whether civilian or military, had been reminded “not to proceed on their own in arresting Italian subjects,” except when pursuing someone in flagrante delicto (flagrant délit) or in self-defense. Even in such cases, they were to turn the arrestee over to Italian consular agents, as guaranteed by Italy’s treaties with the bey.¹⁴ In the “Meschino affair,” as it came to be known, this is precisely what did not happen. He had been arrested the next day, rather than in flagrante delicto, and taken directly into military custody without consular approval, on the grounds that any délit involving a person engaged in military service fell under military jurisdiction. For the Italian government, this stance was not only inequitable (would not a French national who committed a similar offense appear before a civilian court?—Foreign Minister Pasquale Mancini wondered), it also fundamentally contradicted the protectorate premise.¹⁵ A year later, the British government made similar arguments regarding one of its Maltese subjects, Giovanni Mangano, who was arrested in a comparable altercation and subjected to military justice rather than turned over to the British consul.¹⁶

In negotiating the treaty that established the protectorate, the French had been concerned primarily to clarify their relationship to the bey. Mancini now illustrated the extent to which this relationship implicated other powers. Where an army occupied a country with the “consent of the territorial sovereign,” Mancini argued, the laws of the land, including treaty obligations, remained intact.¹⁷ Since the capitulations were still “in effect,” he insisted, Italians could not “be deprived . . . of their natural judges.”¹⁸ Although the capitulations originally had been devised to prevent Christian subjects from being judged by an Islamic justice system, now Italy invoked them in order to protect the nationals of one European country from being judged by another. French leaders, on the other hand, thought themselves not only capable but also destined to serve as the natural judges of all Europeans in Tunisia. As Premier and Foreign Affairs Minister Charles Duclerc explained to Italy’s ambassador in the midst of the Meschino affair, “a civilized nation would have no raison d’être if it did not bring order and justice,” which was why, according to Duclerc, France would “soon demand the abolition of the capitulations.”¹⁹

The Meschino affair proved that a Sicilian barber’s nocturnal street sense, whether deliberately confrontational or motivated by honorable intentions toward female passersby, raised fundamental questions about who was truly sovereign in Tunisia. “If our gendarmes arrest a criminal, even flagrante delicto, his very detention becomes a casus belli under the Capitulations,” Paul Cambon, the resident minister succeeding Théodore Roustan, complained.²⁰ The Bardo Treaty had placed France in a “humiliated” position, which foreigners were quick to exploit.²¹ As Cambon’s confidant Paul-Henri-Benjamin d’Estournelles de Constant, France’s délégué à la Résidence générale in Tunisia, characterized the problem, the “omnipotence [toutepuissance] of European jurisdictions in Tunisia” had given rise to “inextricable complications and abuses.”²² D’Estournelles very much regretted that the Bardo Treaty had guaranteed the bey’s existing agreements with third countries, which allowed there to be as many “States within the State as there were European nations represented in Tunisia.”²³ This idea was hardly original to d’Estournelles. The Radical Party deputy Camille Pelletan had contended, as early as December 1881, that the Bardo Treaty blocked any possibility of reform in the protectorate because of “these consular powers that form States within the State,” and Cambon himself admitted that the treaty’s recognition of the capitulations had been a “huge mistake [grosse faute].”²⁴ While the Italian government aimed simultaneously to defuse the Meschino conflict and defend its extraterritorial rights, Cambon had already set his mind to ending the capitulatory rights of all European powers in Tunisia.²⁵ If France failed to do so, he later remarked to his wife in a letter, “we will find ourselves backed into a corner [nous voilà acculés].”²⁶

The corner consisted of the commercial privileges, diplomatic immunities, and consular jurisdiction emanating from capitulations agreements negotiated between the bey and European powers. In particular, the maintenance of the consular jurisdiction meant that each consular court of every European power exercised a form of sovereignty in the protectorate. Moreover, because this sovereignty was jurisdictional (applying to persons), rather than territorial (applying to places), its effects were not limited to a geographically fixed enclave but rather followed all foreign subjects as they traveled throughout the protectorate and as they marked the watershed moments of their lives: marriage, the birth of a child, divorce, property purchase or sale, the opening of a business, or any other social activity that was mediated by the law, including death and inheritance.²⁷ In this way, the European population of Tunisia, although smaller than Egypt’s or Algeria’s, was still sizable enough to present an obstacle to French hegemony.

At the time the protectorate was established, its residents included at least 11,200 Italians and 7,000 British subjects (mostly Maltese), as well as a smattering of Greeks, Dutch, and other foreign nationals. The size of France’s settlement, perhaps as small as 700, paled in comparison.²⁸ Each of the 20,000 or more non-French Europeans living in Tunisia, therefore, constituted a potential crisis for protectorate authorities, since this meant that even the most mundane affairs could escalate into diplomatic rifts. Even as French settlement increased significantly and surpassed the Maltese in size, Italians still outnumbered French nationals considerably. By 1906, for instance, Italians still dominated at 81,000, while the number of French had climbed to over 34,000 and the Maltese had only grown to 10,300.²⁹ Of equal concern were far less numerous “protected persons” or protégés—native Jews and Muslims, often merchants or persons otherwise doing business with Europeans, who had secured the legal protection of one or another European government and who, in so doing, multiplied the instances in which extraterritorial jurisdiction came into play and, more troubling, undermined the strict division between “Europeans” and “natives” when the latter claimed the rights of the former.³⁰ In short, if the extraterritorial sovereignty of other European states, especially Britain and Italy, were allowed to persist, these states could thwart France’s control over the rule of law in Tunisia—not because of the size of the foreign population, but because of the significant number of everyday-life matters these individuals called upon foreign governments to mediate or resolve.³¹ As Cambon himself put it, the capitulations meant that “the administration can be paralyzed at any moment by the consuls.”³² It was this constant potential for outside intervention that he had in mind when he said France would be cornered if the capitulations were not suppressed.

There was another corner Cambon wished to avoid being backed into, as well: he wanted to keep France’s expeditionary force from gaining the upper hand in running the day-to-day affairs of the protectorate over civilians such as himself and d’Estournelles. Being caught between the prerogatives of foreign powers and those of France’s own military was frustrating to Cambon, but it ultimately helped produce the institutional change he desired. To quell the military’s power, which had expanded in the wake of insurrections in Sfax and Kairouan, he had to prove that a civilian administration could maintain order and security, which meant better control not only over Tunisia’s “natives” but also over its “unruly” Europeans. To persuade European powers that their interests lay in establishing a permanent French civilian justice system that would act in the name of all Europeans, what better way than to use the threat of arbitrary military justice as the only viable alternative? Indeed, at the time that the Meschino incident took place, Annibale Raybaudi Massiglia, the Italian consul, was convinced that this and other cases were being used deliberately to “open a breach in the capitulations by submitting to military jurisdiction all those accused of infractions [délits] against the army.”³³ Once again, the Italian consul proved right. Cambon had been aware of, and had sanctioned, the military’s arrest of Paolo Meschino and others like him.³⁴ But Cambon saw no advantage to relying on military might over the long term. Instead, he believed that French power in Tunisia rested on two reforms: establishing civilian rule and ending the extraterritorial rights of other European powers.

• • •

Negotiations to end the capitulations started off relatively smoothly for France. By mid-October 1882, Austro-Hungarian leaders, while preferring not to assent officially until others also had done so, nonetheless had informally indicated their willingness to close Austria-Hungary’s court with virtually no questions asked. French negotiators had presented the case to their counterparts in Vienna as analogous to Austria-Hungary’s own actions in Bosnia-Herzegovina, to which reforms the French had conceded immediately. According to the Italian chargé d’affaires in Vienna, Francesco Galvagna, Austro-Hungarian Foreign Minister Gustav Kálnoky had fully accepted France’s argument: “France finds itself in Tunisia in a situation,” Kálnoky had told Galvagna, “having a clear analogy to the occupation of Bosnia and Herzegovina . . . [and] when the imperial [sic] government took, last year, the resolution to suppress the capitulations in the occupied provinces, the French cabinet offered its compliance right away.” This meant, as Galvagna paraphrased Kálnoky, that the “Vienna Cabinet cannot refuse its consent to the Government of the Republic for the abolition of the capitulations in Tunisia.”³⁵ Germany, too, had few reservations. Of course, like Austria-Hungary, it also had very few direct interests in Tunisia. Because representatives for both Germany and Austria-Hungary did not need to worry about the practical effects that suppressing consular jurisdiction would have on their subjects in Tunisia, having virtually none there, they were able to respond to French queries with purely diplomatic interests in mind. Moreover, in the case of Austria-Hungary, conceding to French wishes seemingly offered its own maneuvers in Bosnia-Herzegovina greater legitimacy. From Italy’s perspective, on the other hand, there was a “quite remarkable” difference “between the juridical status of Bosnia, entrusted [affidata] by a European treaty to the complete administration and responsibility of the Austro-Hungarian government, and the condition of the Regency of Tunisia, where France’s only qualification [titolo] is the treaty of Bardo,” a treaty that, Mancini hastened to add, “guarantees vis-à-vis other powers, the maintenance of all existing international agreements.”³⁶

In its discussions with Great Britain, the Quai-d’Orsay invoked both the Bosnia-Herzegovina analogy and that of Cyprus, where Britain had imposed its own judicial system. At first, it looked as if Britain would be receptive to this line of thinking. In mid-October, for instance, Lord Granville reported internally that in his view, “a country like France . . . had the means of introducing judicial institutions [in Tunisia] which would ensure substantial justice to foreigners.” As long as Britain’s commercial rights and privileges continued to be protected, “it was in the interest of British subjects and of commercial progress and civilization to agree to the introduction of any well-devised judicial system to replace the present imperfect arrangements.”³⁷ Britain’s ambassador to Vienna, Sir Henry Elliott, put it in even starker terms: “no one, who has had occasion for observing the working of the Capitulations, and especially of Consular jurisdiction, can . . . desire their maintenance wherever the establishment of a responsible Government renders their abrogation possible.”³⁸ Perhaps Granville and Elliott had in mind the enormous cost of maintaining extraterritorial jurisdiction in order to protect persons who, as Caitlin Anderson observes, more often than not had never set foot in the United Kingdom and did not necessarily share the interests of the crown.³⁹ After all, Britain’s consulate general in Tunis had been one of its most active in the Ottoman Empire, having been open fifteen hours a day until eleven in the evening, in contrast to most Tunis consulates. The costs of running such a consulate and the desire to avoid diplomatic incidents triggered by protection were enough, according to Anderson, to encourage the foreign office to regard British protected persons throughout the Ottoman Empire “more as liabilities than as assets” by the middle of the nineteenth century.⁴⁰

Then, too, at the time that Cambon initiated talks on the capitulations, Britain was preoccupied with events unfolding in Egypt, and Tunisia surely must have seemed a distraction. Although Cambon hardly wanted to see France acquiesce to the control of Egypt by Britain, he did think that a concession regarding Tunisia was the least that France could expect in recompense for allowing this to occur. Instead, the situation in Egypt had thrown the foreign ministry and Charles de Freycinet’s government into disarray, with little time to focus on Tunisia.⁴¹ Indeed, rather than the French receiving recompense, it was the other way around. Once Britain’s occupation of Egypt was secure (and it was clear that France would not intervene), the British foreign office began to question the French proposals for Tunisia and demand that certain conditions be met before closing her majesty’s consular court.

By late November, the Italian foreign ministry had finally captured the ear of members of the British foreign office establishment and proceeded to propose that if consular courts were to be closed, mixed courts rather than exclusively French courts ought to take their place.⁴² This was exactly the sort of solution Cambon, a former prefect used to centralized authority, wanted to avoid. “Mixed tribunals” already existed in Egypt, where, since 1876, they adjudicated civil and commercial disputes between claimants and defendants of different nationalities under the oversight of fourteen European powers. French officials initially had been wary of Egypt’s mixed tribunals. However, by the time the mixed court system came up for renewal in 1881, the British were poised to edge out French influence in Egypt, and the French government came to see the mixed courts, which perpetuated the capitulations, as a way of checking Britain’s ability to extend its influence in Egypt.⁴³ Cambon surely feared that Britain and other powers could endeavor to check French power in Tunisia in much the same way, if Tunisia’s capitulations were maintained or if a system of mixed courts were established.

Instead, with talks still ongoing, Cambon inaugurated the first French court in Tunis to great fanfare. This fait accompli surely owed something to the slowing of diplomatic negotiations. But Cambon also had grown increasingly concerned in the early months of 1883 that French military authorities were becoming “by the force of circumstance, the only administrative power in the country.”⁴⁴ Establishing civilian courts was one aspect of his struggle to root out military influence in Tunisia. How ironic, then, that in inaugurating the new court in Tunis, he relied on martial symbolism to herald the event. The new magistrates and court auxiliaries—a total of seventy-six for the civil, criminal, and correctional courts of Tunis (another court would open in the coastal city of Sousse a few years down the road)—disembarked at Goulette harbor outside Tunis on a French warship arriving from Algeria.⁴⁵ Cambon himself arrived at the ceremony on 24 April “escorted by a cavalry squadron,” while troops lining the plaza in front of the courthouse “completed the display.” The ceremony was attended by all the representatives of foreign governments in Tunisia, as well as the new bey, Ali (in office since the death of his brother, Muhammad al-Sadiq, six months before). Cambon made a point of lauding the protectorate form of governance, as well as promising that it would always respect “local traditions and customs.”⁴⁶ At the same time, however, he drew on classic republican rhetoric as he informed the new court officials of their duty: “Your mission is not only to establish French justice here, [and] to make it beloved and respected” by those to whom it already applies, “but also to make it desired by those who still escape its jurisdiction.”⁴⁷ By this, Cambon did not mean Tunisians (whose access to the French justice system he strongly opposed) but rather non-French Europeans. Were French judges, an onlooker might have wondered, to be the “hussards of the republic” like teachers in the metropole?⁴⁸ The symbolism of the inaugural ceremony was enough to make the Italian consul, at least, wonder if all Europeans would find impartial justice in the new courts.

The inauguration of the court was possible because the French parliament had passed a law sanctioning it on 27 March 1883, made applicable in Tunisia through a beylical decree of 18 April. A few weeks later, another beylical decree prospectively extended the jurisdiction of French courts to nationals from foreign countries that renounced their capitulatory rights.⁴⁹ Thus, a dual justice system was established. Europeans, once the consular courts were closed, would fall under the authority of French courts, while Tunisians would continue to be subject to beylical justice, a system including the wizara (state secular) court, Muslim sharia courts, and, for cases of Jewish personal law, grands rabbins who served as judges.⁵⁰ Native Muslims and Jews would fall under French jurisdiction only when they were accused of felonies [crimes] against European persons or property, though reforms later extended this principle to misdemeanors [délits].⁵¹ In practice, the native justice system relied on quwwād (Muslim local officials, plural of qā’id) to render justice swiftly—and thus cheaply. Cases were to be referred to the court system only if they “exceed[ed]” the qā’id’s “expertise.”⁵² The major exception to the ratione personae logic of the protectorate’s dual justice system was property law, which continued to fall under Islamic jurisdiction. Reforms changed this in 1885 by placing “registered” property under the jurisdiction of the French court.⁵³ France secured reforms to the Tunisian justice system by virtue of its 8 June 1883 La Marsa Convention, whereby the bey agreed to make all domestic financial, judicial, and administrative reforms deemed necessary in the future by the protecting power. It was in the La Marsa Convention that the word protectorate, which had been absent from the Bardo Treaty, finally appeared.

Finally, the holdouts among the European governments acquiesced, almost a year after the framework for French legal institutions was in place. Among the demands from Great Power governments were that their nationals be indemnified for damages to their property occurring during the French invasion and subsequent insurrections before they would close their courts.⁵⁴ Although many governments issued conditions for their acquiescence, Italy’s protests were the loudest and its demands the most extensive. Writing to the Italian ambassador in Paris, Foreign Affairs Minister Mancini stressed that France had not yet “adequately taken into account the political and parliamentary constraints” under which his government operated.⁵⁵ La Riforma, which regularly opposed Mancini on this issue, conveyed the crux of the problem: “Justice,” it wrote, “is not just an official expression of morality but the utmost expression of sovereignty.” To allow consular justice to pass under French authority was therefore to concede “official and effective sovereignty in the Regency” to France.⁵⁶ Mancini tried to explain the predicament such views put him in:

It is not . . . that I wish to evade my commitments [to France], as is believed in Paris and as perhaps the French ambassador himself believes. . . . But the government of the Republic must understand that in order to pass these agreements, I have to be fully armed, to be in a position to respond to every objection that is presented to me, to reply to all questions that I am asked.⁵⁷

Yet the French were wary of Mancini—after all, he had been instrumental in concluding the Triple Alliance, which had come to public attention earlier that year and by which Germany and Austria-Hungary promised to assist Italy if it were attacked by France. Of course, arguably, Italy had entered into the Triple Alliance in part because France’s occupation of Tunisia presented new dangers to its security.⁵⁸ Whatever Italy’s motivations for its defensive alliance, the state of European affairs tied France’s hands. France had won Tunisia, but this had not given it free rein.

Italy demanded first that its 1868 treaty with Tunisia remain in effect, guaranteeing certain commercial privileges and the principle of capitulations—Italy would suspend indefinitely, rather than permanently discontinue, the operation of its consular courts. In addition, it placed conditions on recognizing French jurisdiction: half of the assessors in a trial concerning an Italian defendant should be Italian nationals; Italian nationals should be admitted to the French bar, magistracy, and court employment; Italian law should be applied to Italian nationals in matters pertaining to personal status; Italian protégés should be treated as Italian nationals; and finally, Italians found guilty of capital crimes should be spared the death penalty.⁵⁹

Among the Italian demands, the ones regarding assessors, lawyers, and the death penalty posed the greatest problems for the French government. France did not want to grant Italy concessions that were different from those enjoyed by other states, considering itself “obliged to uphold a common standard that offers the same guarantees to all foreigners.”⁶⁰ Only Italy, and perhaps the British crown colony of Malta, could claim to have enough nationals in Tunisia to make the insistence on jury representation realistic. In the end, France gave both Italians and British subjects the opportunity to request a pool of assessors composed in half of fellow nationals. With respect to attorneys and magistrates, France initially maintained that Italians wishing access to the magistracy would have to be trained in French courts. But when Italy refused this condition, the French conceded that those currently employed as defense attorneys or magistrates at the Italian consular court would be allowed to continue in the French courts, while future magistrates could complete their training under an Italian prosecutor. Only the request, by both Britain and Italy, that Maltese and Italian lawyers be allowed to argue cases in Italian appears to have been outright rejected by France, though a court interpreter for Arabic, Italian, and Maltese was instituted.⁶¹ The death penalty stipulations were the most contentious. France claimed that its courts in Tunisia ruled in the name of the French state according to French law; it was therefore inadmissible to modify procedure for Italians with respect to presidential pardons in capital cases, for the French parliament no doubt “would refuse to sanction such an attack on the principle of national sovereignty.”⁶² Here, too, France secretly surrendered: “The French Government consents to this engagement, but it cannot do so in a public document without prejudicing the exercise of penal law with regard to Italian defendants.”⁶³

With the exception of this secret clause on the death penalty, Italy’s demands engendered identical ones from Britain, the foreign office of which invoked the principles of “most-favored nation” status to assure that it closed its courts under conditions at least as advantageous as those extended to Italy. The British government was also concerned to settle outstanding disputes pertaining to its protégés.⁶⁴ Negotiations with Britain turned so difficult, in fact, that Cambon dispatched d’Estournelles to London, where he lobbied the British government for several weeks before securing its agreement.⁶⁵ In the meantime, Cambon’s strategy of presenting the foreign governments with a fait accompli began to bear bitter fruit: as the courts began judging only Frenchmen, the new judges “render decisions as if they were in France,” Cambon complained, “without taking into account the customs of the country or the demands of the situation. Frenchmen are convicted, ruined, by virtue of the law, while foreigners are never convicted by their consuls.”⁶⁶

Finally, in late December 1883, the British government agreed to close its consular court in Tunis effective New Year’s Day, 1884. Soon thereafter, France and Italy signed a protocol suspending the capitulations. Both the British and Italian press lamented the decision. For the Times of London, the concession meant that “the last vestige of visible power which it has pleased the French Republic to leave to the protected Bey of Tunis disappears” and, with it, British prestige. “At no period of Tunisian history has the British name sunk so low, or had British subjects in Tunis so much reason for genuine complaint.”⁶⁷ For La Riforma, Tunisia had become “a French colony,” much to Italy’s “humiliation.” It was so “painful [doloroso],” the paper continued, “that we cannot think of it without feeling our heart strings pulled.” La Tribuna was more measured, acknowledging that the reforms would end the previous era of uncertainty that had accompanied consular jurisdiction, for better or for worse, but nonetheless worrying whether the negotiations would “lead Italy to future concessions that would be absolutely incompatible with its interests as well as its dignity.”⁶⁸

Although Italian public opinion saw the suppression of consular jurisdiction as a concession, the 1884 protocol also was a significant compromise on the part of France, the effects of which persisted long after the agreement was signed. H. G. Montferrier’s prediction in the Journal des Débats that “henceforth there no longer exists any subject or pretext of misunderstanding between France and Italy” proved overly sanguine.⁶⁹ In 1885, when General Boulanger reacted to a new incident between an Italian civilian and a French soldier by issuing an “ordre du jour” sanctioning soldiers’ use of force against anyone deemed threatening, the Italian government was so outraged that not only Cambon but also Prime Minister Freycinet were forced to issue apologies.⁷⁰ Although Cambon finally rooted out the influence of military justice, other conflicts emerged under civilian rule. The protocol’s secret clauses, for instance, caused a scandal in 1894, when they became public after three members of the Sicilian mafia committed a brutal double murder in Bir-Loubit, a provincial town between Tunis and Sousse, only to be spared execution by the French president—forced to honor his country’s promises to the Italian government.⁷¹ Once all these concessions were agreed upon, Great Britain, Italy, and other European states consented to close their consular courts. By late summer 1884, French jurisdiction applied to the subjects and protégés of all European powers.⁷²

• • •

The absorption of multiple consular jurisdictions into a single jurisdiction under French auspices presumed a community of interest among “Europeans” and their common distinction from “locals.” But identity in Tunisia was less absolute than the structure of the courts would suggest. Scholars have suggested other terms—“cultural creoles,” “Crypto-Europeans,” or “Euro-Tunisians”—all of which, as Julia Clancy-Smith notes, exemplify how “messy” this category was.⁷³ The Grana were a case in point. Grana were Jews who had lived in Tunisia for generations but whose origins ostensibly could be traced back to the northern shores of the Mediterranean. Known as “Livornese Jews,” Grana (who actually hailed from Spain, Portugal, Trieste, and Genoa, as well as Livorno, and sometimes included Jews of North African origin who had become Tuscan subjects) refused to be easily categorized.⁷⁴ Although they were known to have a distinctive subculture, they were ecumenical in their legal claims, turning to rabbinical justice for matters concerning personal status and to consular courts for commercial claims.⁷⁵ Grana, like other groups living in Tunisia that straddled the divide between local and European, showed how artificial distinctions between “Europeans” and “natives” often were. In trying to institutionalize the difference between these two identities, Cambon failed to account for the fluidity of social life in Tunisia—a veritable crossroads of the Mediterranean where Muslims, Jews, and (thanks to recent migration) Christians of diverse regional origins had become accustomed to maneuvering within systems of legal pluralism to take advantage of whichever laws best furthered their social goals in a given instance.⁷⁶

The advent of supposedly unified French courts did not entirely curtail this flexibility. What did change was the manner in which such shifting allegiances engaged the international system, itself increasingly organized around distinct national states whose claims for legitimacy often rested on the notion of comprehensive and exclusive territorial sovereignty.⁷⁷ This “impulse to claim territorial sovereignty over bounded space occurred,” ironically enough, “alongside the imperial project of devising a system of territorial differentiation recognizing degrees of sovereignty for colonial enclaves,” or what historian Lauren Benton characterizes as “quasi-sovereignty.”⁷⁸ In Tunisia, as probably elsewhere, the ideal of comprehensive sovereignty clashed with the practical choice European states had made, in the interest of empire, to embrace quasi-sovereignty. Underlying the French legal system in Tunisia was an assumption that all Europeans shared interests at the very moment that their states sparred with each other throughout Africa for influence. For Cambon, “international rivalries were alien to French justice.”⁷⁹ In reality, the coincidence of renewed imperial rivalry and a burgeoning international state system helped encourage local-level scrambles for influence among European states while at the same time giving new meaning to the legal strategies of Maghribis.⁸⁰ Although the social motivations for such legal maneuverings remained similar to those of the precolonial period, the consequences of such practices changed dramatically as a newly competitive state system emerged. Thus, while Cambon’s reforms succeeded in closing the consular courts, France nonetheless remained constrained throughout the tenure of its protectorate by the interpenetration of international interests and domestic civic life in Tunisia.

To be sure, the closure of consular courts in the 1880s did streamline legal procedure in Tunisia. Gone were the days when a consul’s janissaries had to be present in order for an arrest of a foreign national to take place, or when an accused could take refuge indefinitely in his or her consulate. And sentences rendered by local courts against Europeans no longer required the written consent of countless consulates; the French “consulate,” or residency general, now assumed that role. In this sense, French authorities achieved their goal of guaranteeing French preponderance while maintaining the flexibility that recognizing local sovereignty provided.

Nevertheless, the protectorate, as a “wonderfully flexible legal instrument,”⁸¹ proved sometimes too flexible for French liking, because it created new conditions for instrumentalizing allegiance, opening up spaces for foreign nationals and native subjects to exploit the limitations of French power.⁸² Instead of establishing a “common” rule of law for all Europeans, the reforms allowed residents of Tunisia to engage in a new form of jurisdictional politics, or “conflicts over the preservation, creation, nature and extent of different legal forums and authorities.”⁸³ Jurisdictional politics were what Cambon thought he had done away with when he closed the consular courts. Instead, they persisted in another form, for the suppression of European consular courts in the 1880s engendered novel legal maneuvers by individuals living in Tunisia that had the effect, if not always the intent, of exposing the limits of French authority in the protectorate. Over time, it was precisely the confrontations and negotiations engendered by this disjuncture between the intentions of lawmakers and the social uses of the law, especially when such social practices played one European legal jurisdiction off another, that brought French authorities to intervene more directly in Tunisian life.

Cases like the infamous murders at Bir-Loubit perpetrated by members of the Sicilian mafia in 1894 demonstrated most spectacularly the extent to which the establishment of French justice had not ended the influence of other European governments in the protectorate. This was not the first time that a murder committed by Italian nationals in Tunisia had served as a bitter reminder of the concessions France had been forced to grant Italy in order to end consular justice. When the Italian nationals Mauro Drago and Domenico Bernauro were found guilty of murder and aggravated theft in February 1891, for instance, the French procureur de la république [attorney general] in Tunis concluded that the execution of Drago not only would “satiate public opinion” but also would “inspire a salutary fear among gangsters who . . . arrive from Italy and especially Sicily in overly large numbers to commit crimes in Tunisia.”⁸⁴ With reminders from the Italian government and press regarding France’s commitment to the so-called secret protocols (that were obviously no longer very secret), however, the French president commuted the sentence.⁸⁵ Later that same year, Unione, the main Italian newspaper of Tunis, publicized the secret clauses when another Sicilian by the name of Partenico was sentenced to death in Sousse, leading the resident general to wonder what French courts in Tunisia gained by ordering this sentence if it could not be carried out.⁸⁶ The problem posed by the secret protocol remained unresolved when, in 1894, it was compounded by the fact that two Tunisians were condemned to death the same day as the three mafiosi responsible for the Bir-Loubit murders.⁸⁷ If the sentences against the Italians were to be commuted, argued the president of the French court of Tunis, Auguste Fabry, then so, too, should those of Hassin ben Amar and Messaoud ben Bachir, particularly as Fabry considered their crimes lesser than those committed by the Italians. Any other solution might be “perceived by natives as an inequity. Yet it is especially by showing ourselves to be just in their regard that we can win their hearts; among all the principles of our European civilization, the idea of equality before the law is the one that can most easily penetrate their minds and attract them to us.”⁸⁸

Well-trained French jurist that he was, and relatively new to Tunisia, Fabry seems momentarily to have forgotten that, unlike in the metropole, the justice system in the protectorate quite deliberately had not instituted the principle of equality before the law.⁸⁹ Moreover, he failed to take into account that the structure of the protectorate meant that international law trumped French legal tradition when it came to the treatment of foreigners. Might there be some way around honoring the secret protocols?⁹⁰ “What is the scope of this engagement?” he queried. “Does it impose absolute and unlimited obligations on our Government? Hadn’t France fulfilled it sufficiently by pardoning for more than ten years all Italians condemned to death in Tunis after having committed the gravest crimes?” Moreover, he wondered, did not the fact that Unione, the “mouthpiece [organe]” of the Italian government and its consulate, had published (again) the terms of the secret protocol constitute a violation of that protocol, rendering it void?⁹¹ Fabry’s opinion notwithstanding, the president of the republic felt compelled to honor France’s agreements with Italy regarding the treatment of Italians in Tunisia and thereby commuted Drago and Bernauro’s death sentences to forced labor on 14 May 1895.

France’s agreements with Italy regarding criminal law did not just pose legal challenges to the young protectorate system; they also posed political ones. Cambon had complained, in 1883, that Frenchmen were judged more harshly than their foreign counterparts because cases involving foreigners continued to be adjudicated in consular courts. Now, differential treatment had been institutionalized within the very French court system that had been designed to bring all Europeans under a common set of laws. Coming at a time of mounting hysteria about Italian criminality, decisions like the one regarding Drago and Bernauro served as unwelcome reminders of the limits on French sovereignty in the protectorate and drove efforts to find other ways to rein in the behavior of Tunisia’s European population. By 1898, after a decade fighting the so-called Italian peril through the courts, Fabry succeeded in convincing the protectorate government to require foreigners to “register” upon entry into the protectorate—a decree applicable to all foreigners but aimed at limiting Italians.⁹² Pretty clearly, French authorities perceived controlling the behavior of Italians in the protectorate as necessary to consolidating French rule in Tunisia.

That perception was not lost on the Italians themselves, who, by the late 1880s, saw in the heightened French attacks on Italian crime an opportunity to petition for a return to consular justice.⁹³ As one petition scorned sarcastically, “The delinquent is always an Italian, the police always arrest Italians, and only Italians must be capable of delinquency.”⁹⁴ A similar Italian petition, signed by an astounding 1,800 persons (or about 11 percent of the Italian population of Tunisia), added the grievance that in “civil cases [he] who is not Italian is always right” before concluding that “where there is written Liberty, Equality, Fraternity, for the Italian is written No Liberty, No Equality, No Fraternity.”⁹⁵ For the Italian consul, Nicola Squitti, the French attacks on Italians were manifestations of France’s own insecurity, demonstrating that the French had “not resigned themselves to seeing us still wield a great deal of influence in Tunisia.” It was this that explained the “quotidian spectacle of war against Italians in Tunisia.”⁹⁶ Under the circumstances, Squitti supported the petitioners’ request to reestablish consular justice for, in suspending it, Italy had ceded the “only weapon we had in hand.”⁹⁷ Among the advantages of rescinding Italy’s compliance with a French-administered justice system? “It would give birth to the idea that Tunisia has not fallen completely and forever under French authority [potestà].”⁹⁸ In response to another petition from 1889, this one signed by 1,165 Italian residents of Tunisia, the Italian undersecretary of state for foreign affairs, Abele Damiani, pledged to denounce the protocol of 1884, by which Italy had agreed to suspend its consular jurisdiction.⁹⁹ It was probably no accident that these complaints came during Francesco Crispi’s tenure as foreign and prime minister, given that Crispi was modern Italy’s most ardent supporter of an Italian presence in Africa to date. Italy did not, of course, make good on its threat. But this did not prevent the Italian government from raising the specter of reestablishing its consular jurisdiction for a second time in 1893 and yet again in 1895.¹⁰⁰ The fact that the Italian government had “suspended” rather than abolished its consular jurisdiction remained a weapon in Italy’s arsenal.

Although the British government had not used the term suspended in its agreement to close its court, it also found reason in the late 1880s to defend its understanding of where French sovereignty started and stopped and where its own prerogatives remained. Within the domain of criminal law, perhaps the most contentious issue was the fate of Paolo (sometimes rendered Pablo or Pedro) Lia, a Maltese subject who in 1866 had been found guilty of manslaughter by an Algiers court in absentia and sentenced to death. Lia had long since moved from Algeria to Tunisia, where he was arrested twenty years after his conviction on an order from the Algiers procureur to appear in court back in Algeria. The British consul in Algiers, Robert Lambert Playfair, questioned the legality of the arrest, “Tunis not being French territory.”¹⁰¹ As the time for Lia’s appearance before the Algiers Assize Court drew near, the correspondence on the affair became more insistent: The Tunis consul general, Thomas B. Sandwith, wished to “resist by every means Lia’s deportation to Algiers,” noting that “as no Extradition treaty exists between France and Tunis, a British subject cannot be deported thence to French territory.”¹⁰² Reacting to Playfair’s latest dispatch, Julian Pauncefote, the permanent undersecretary at the foreign office, wrote on it: “My view is that the Bey of Tunis cannot any more than the Sultan of Turkey or the Emperor of China surrender a British Subject to a Third Power”—the Third Power in this case being France, since France’s official role in Tunisia was to protect the bey’s government. And, he continued, “[t]he French cannot exercise greater powers than the Bey.”¹⁰³ The next reader of the dispatch, with the initials WED (probably William Edward Davidson, the foreign office legal adviser), concurred. Britain had allowed British subjects to come under the jurisdiction of French courts in Tunisia, “but she ha[d] waived nothing more” of their rights. Since it was clear that the bey could not have, prior to the advent of the protectorate, “surrendered a British subject to the French authorities in respect of a crime committed in French territory,” Davidson wondered “how can it possibly be contended that the French can without our consent, exercise greater powers over British subjects than it was in the competence of the Bey, from whom they derive their title, to grant them?” Concluding his remarks, Davidson wrote, “I cannot doubt that this is an outrageous assumption on the part of the French or that we must enter [?] and maintain a strenuous protest against it.”¹⁰⁴ Pauncefote then concluded the exchange of views, this time directing his remarks to Lord Iddesleigh, the foreign minister: Britain should protest against sending Lia to Algiers and should oppose French efforts to “exercise any Jurisdiction over him in respect of an offence committed outside of the Regency.”¹⁰⁵ The French, too, were determined to stand their ground: “This protest cannot affect the course of French justice,” the Algiers procureur told Playfair.¹⁰⁶ And yet the British did succeed in forcing the French to (forgive the pun) play fair: Britain blocked Lia’s extradition to Algeria and, as of January 1887, the charges against Lia were dropped—perhaps in part due to protests from Tunisia’s Maltese community (even the British consul “was not prepared for the extent of the sympathy which this man’s cause has called forth”).¹⁰⁷ No wonder that, soon thereafter, France initiated treaty discussions regarding criminal extradition with Britain and Italy.

• • •

While the impact of international relations on criminal law in Tunisia was important, its effect on civil law was even more pervasive. Because the diplomatic compromise affected marriage, divorce, inheritance, taxation, property rights, and other important domains of civil law, it greatly influenced the way people understood and experienced French power and, in so doing, shaped Tunisia’s colonial civic order. Residents of Tunisia exploited the ambiguity of the protectorate arrangement, attempting to invoke whatever jurisdiction served their immediate interests. Indeed, the question of who was “European” was less clear-cut than it might have seemed. Thus, even after the French successfully negotiated the suppression of the capitulations in treaties with European states, bringing all “Europeans” under the umbrella of the French courts did not necessarily bring them to identify with French legal norms, nor did it create a community of interest within the so-called European population.

Civil law cases demonstrate how competing European legal codes penetrated family relationships in Tunisia for decades following the closure of consular courts, since the treaties suspending the consular jurisdictions stipulated that in civil law matters—such as marriage, divorce, and inheritance—the personal, rather than residential, status of the individuals involved should determine which country’s laws would be applied. Recognizing personal status was not an innovation in the domain of international private law, but it took on special significance in Tunisia, where the fluidity of social identity made it possible for a single individual to belong to more than one group in his or her lifetime or to invoke different identities in different circumstances—especially once sumptuary laws that had distinguished persons of different religions fell into disuse or were lifted.¹⁰⁸ The division between “Europeans” and “natives” not only failed to account for this fluidity but also did not prevent individuals from trying to exploit the new juridical situation to their personal advantage.¹⁰⁹ Take, for instance, a complaint addressed to the British consul in 1896 by one Messaouda Bessis, wife of Echoua Smadja, a Jewish Maltese subject.¹¹⁰ In her letter written in French and signed in Hebrew lettering, Mrs. Smadja asked the consul to do something about the fact that her husband had taken a concubine whom he made his second wife, by virtue of a contract witnessed by Jewish notaries. Invoking her husband’s status as an Anglo-Maltese subject, she asked that the consul see to it that her husband was placed on trial in the “courts that replaced consular jurisdiction,” that the “Anglo-Maltese law on bigamy be applied to him,” and that the second marriage be annulled.¹¹¹ Interestingly, her argument regarding her husband’s bigamy rested on her own marriage to him before local Jewish notaries.¹¹² It is hard to know from her letter whether Mrs. Smadja personally identified with Malta or for that matter with what she called Anglo-Maltese law. But she clearly understood that the only way to legally challenge her present family situation was to insist on that identity. Her plea is also revealing inasmuch as it demonstrates her understanding that the consulate no longer ran courts. But she also still expected the consul, some twelve years after the closure of Britain’s consular court, to serve as her intermediary to the French court. The Sousse vice consul himself was unsure enough of how to reply that he forwarded her letter to the consul in Tunis, who in turn sent it on to the foreign office in London, only for it to receive a scribbled dismissal: “surely a question for decision by [the French] Tribunal?”¹¹³ The direct intervention of consuls in legal matters was now gone, but the impact of the capitulations remained.

Marriage and divorce disputes were prominent among the civil cases heard in the new French court. Indeed, the fact that divorce had again become legal under French law in 1884 no doubt influenced the kind of suits individuals filed.¹¹⁴ When a woman called Antonia sued her husband, André, for divorce, for instance, he tried to claim that his wife had no right to divorce him, because she was Italian and Italian law did not allow for divorce. The court found this argument moot because Antonia, although originally Italian, had become French automatically upon marrying André, and French law did allow for divorce. Moreover, her grounds for divorce were justified, as André maintained a concubine in the conjugal home and had fathered a child by his mistress.¹¹⁵ Although the court found for Antonia in the divorce proceedings, it allowed André to win a legal separation case against his wife on the basis of her own infidelities. Once the divorce was legally recorded, this concurrent separation order would have no effect, as the divorce would supersede it.¹¹⁶ But if nothing else, the suit and countersuit showed the extent to which private disputes between husband and wife were resolved (so to speak) through Tunisia’s new legal institutions. Of course, not everyone accepted the intervention of those institutions in their intimate affairs. Monsieur Calleja, a Maltese man, went so far as to appeal a legal separation judgment rendered in his wife’s favor by the Tunis civil court, contending that it had no jurisdiction over British subjects. The Algiers appeals court found against him, ruling that, by virtue of the suspension of Great Britain’s consular courts, both the Tunis court and Madame Calleja had been within their rights.¹¹⁷ Although these particular disgruntled husbands failed to evade or manipulate the law to their advantage, their effort to do so reflected a common strategy among men aiming to maintain patriarchal power in the family—or perhaps a common reliance by women on courts to escape that patriarchy.¹¹⁸ Both tactics placed French judges in the position of adjudicating conflicts between husbands and wives, as well as laws not of France’s own making.

Inheritance was an equally vexing problem for the new courts. The Napoleonic civil code held that all children of a deceased French subject should inherit equally. But since the agreements to close the consular courts had recognized personal status laws that differed across Europe, French magistrates found themselves confronted by inheritance laws that were totally unfamiliar to them, a problem exacerbated by protectorate inhabitants’ efforts to manipulate, evade, or work the laws to their best advantage. In 1896, for instance, the surviving parents of a Maltese man tried to use the closure of the British consular court as an excuse to place the inheritance outside the boundaries of law, thereby honoring the wishes of the deceased, Francesco Nappa, who had written a will disinheriting his wife in favor of his parents. To his widow, he had left only the use of the home, provided she did not remarry. When Francesco Nappa’s parents tried to enforce their son’s wishes, the widow Nappa turned their jurisdictional game against them by suing her in-laws in French court. Invoking the Maltese Code of Rohan, she claimed a right to a portion of her husband’s estate. By virtue of the cession of Britain’s capitulatory rights, the French court claimed jurisdiction over the case. Enlisting the advice of a Maltese lawyer, the court found in favor of Widow Nappa, granting her one-quarter of her husband’s estate, as the Code of Rohan allowed for marriages where there were no descendants, provided the surviving spouse had not disgraced the family and had no personal fortune of her own.¹¹⁹

In the Nappa case, the nationality of the adjudicants was not in dispute; rather the authority of the French court was. The plaintiff asked the court to apply Maltese inheritance law; the defendants, on the other hand, invoked their Maltese identity in a failed effort to place their family business beyond the reach of French legal institutions. The French magistrates, meanwhile, had a lot of learning to do. The Code of Rohan dictated radically different inheritance settlements according to the conditions of the marriage in question, and in other cases involving surviving spouses of Maltese men, they were forced to come to different conclusions. No wonder that, as late as 1906, the president of the French Court in Tunis wanted to know if the Residency General would be willing to pay for the acquisition of a resource titled “Collezione di decisioni dei tribunali superiori dell’isola di Malta.” For, if it was relatively easy to learn about Italian law, “the same cannot be said for matters involving Maltese law, which we have every difficulty [toutes les peines du monde] learning about.”¹²⁰ The difficulty in applying Maltese law was evident from the way in which many of the judgments were written. In a case regarding community property in marriage and the absorption of premarital debt, for instance, the French tribunal wrote, “it does not seem [my emphasis] as if Maltese legislation, which, in many regards was inspired by the Napoleonic Code, would have adopted a different rule.”¹²¹ When in doubt about the meaning of Maltese law, the French judges in Tunisia drew analogies to (and inferences from) the laws they knew much better: the Napoleonic Civil Code.¹²²

Other civil cases had first to determine the nationality of the parties to the dispute before the court could proceed to judge the issues on their merit. Making this preliminary determination was rarely as cut-and-dried as French officials wished it to be, and, as a result, protectorate archives are filled with inquiries from the justice administration as to the “true” nationality of a legal party.¹²³ That “true” nationality, however, was often open to interpretation, and claimants used this fact to file suits hinging on nationality. The case of Tesi minors v. Calvo, brought by a legal guardian on behalf of two minor children after the death of their mother, exemplifies such behavior. At issue were the rights of the stepfather, who stood to inherit his deceased wife’s estate. The guardian claimed that the stepfather had been married to another woman before their mother and that, as a result, his second marriage was invalid. The man claimed that he had repudiated his first wife before Jewish notaries on 11 March 1888, some ten years before marrying his second wife. Acting to secure the estate on behalf of the children, the guardian insisted that the stepfather, his family having originated from Livorno, was in fact Italian. Because Italian law did not allow divorce, in effect the stepfather remained married to his first wife, thus rendering his second marriage null. The French court, applying Italian marriage law, found in the guardian’s favor and declared the second marriage annulled. As a result, the Tesi children stood poised to inherit the entirety of their mother’s estate. And what of their half-sibling, born of their mother’s marriage to their stepfather? The court acknowledged that their ruling would render this child illegitimate but dismissed that problem as “irrelevant” to the present case.¹²⁴

A case between cousins over the distribution of their fathers’ estates presented the court with equally contentious issues. Two brothers, Mardochée and Emmanuel Liscia, who owned property together, had died. Emmanuel’s daughters, having demanded through a guardian their share of the building in question, were countersued by Mardochée’s children, who dismissed their cousins’ claims on the grounds that they were Jewish, and Mosaic Law did not permit females to inherit from their fathers. Finding that Emmanuel Liscia had been Italian at the time of his death, the court thus applied the Italian civil code, which allowed daughters to inherit. The problem then became how to split the house among the heirs.¹²⁵

Legal conflicts such as these, along with efforts to facilitate the acquisition by Europeans of land for agricultural exploitation, help explain why property law reforms in Tunisia took the form they did. By introducing the procedure of property registration [immatriculation], the French endeavored to circumvent Islamic land law while solving the problem of ambiguous land titles and malleable identities. The 1885 land registration law “allowed the land to acquire . . . a distinct nationality,” regardless of who owned it, for any “registered” piece of property would henceforth be subject to French jurisdiction rather than that of the sharia court.¹²⁶ Whereas people managed to manipulate nationality, the “national” identity of registered land would be fixed. A July 1888 decree granted a “mixed tribunal” the right to issue new and definitive titles based on reviews of requests for registration.¹²⁷ These reforms settled some conflicts while engendering others. All too often, according to Auguste Fabry, the president of the French Court in Tunis, registration “instigated oppositions and demands that would have remained in the shadows were it not for the registration process.”¹²⁸ Fabry was referring to conflicts among native Muslims, some of whom used the property registration process as a way of consolidating land parceled out among many family members into the hands of one or a small number of them. The British government also saw drawbacks to the new legislation, which seemed liable to threaten the hard-won property rights that foreigners had enjoyed in the Regency only since the middle of the century.¹²⁹ Imagine that a Maltese returns to Malta for a few months, the British consul George Ricketts asked the resident general. By virtue of his absence, he would miss the period of objection to a proposed registration of property, as provided for under the law. Returning to Tunis, he “finds his land registered in some other person’s name?” Worse, the law provides him no opportunity for appeal, and thus, “he loses his property.”¹³⁰

For all the new conflicts that emerged around property registration, there were still plenty over unregistered property. In these cases, everything continued to turn on the litigants’ nationalities. With so much depending on nationality, it is no wonder that individuals tried to maneuver between jurisdictions on this basis. A Jewish man named David Sitbon, for instance, named a Mr. Ricklin as a codefendant in his suit against Hamouda Erassa, on the rationale that Ricklin had “administered” the property under dispute. The court refused to hear the case, arguing that the true parties to the conflict were Tunisian and that Ricklin, the European, had been named in the suit purely as “artifice” in order to get the case moved to French jurisdiction.¹³¹ Cases such as Sitbon’s seemed to confirm the assumptions of French legal experts that litigants “would like to avoid the delays and uncertainties of native jurisdictions and instead involve the French court.”¹³² But in fact, the opposite was also sometimes true. French legal procedure was usually lengthier than native justice, and invariably more expensive, prompting some to evade it in favor of native courts. If Sousse (where a French court opened in June 1888) is typical, numerous persons falling under the jurisdiction of the French court often “found delegates among Tunisians in order to present their cases before Muslim justice . . . , their cases before the French jurisdiction costing too much and the delivery of judgments remaining too slow and especially too uncertain for their capital, generally swallowed up by the cost of pursuit [in the French courts].”¹³³ These “frais de justice” were a common complaint of Tunis-based European consuls. Certainly when Europeans were successful at bypassing the French justice system to their advantage, as in an Italian who had a local qāḍī incarcerate a Tunisian debtor for forty-five days, there was little reason to invoke the costlier European jurisdiction.¹³⁴ When those efforts were unsuccessful, however, the European courts began to look more attractive. For instance, a Jewish man named Moïse Enriquez suddenly insisted he was “European” when a suit against his debtors in sharia court appeared not to be going his way.¹³⁵ The French court concluded that the case had to belong to one or the other jurisdiction, not both, for these jurisdictions “derive from two different sovereignties.”¹³⁶ Enriquez had, as far as the French court was concerned, made clear under which sovereignty he fell by first suing his adversaries in sharia court; he could not change his allegiance midstream.

When Cambon first proposed closing the consular courts, he imagined that Europeans would thereafter follow French law. But the negotiations to close the courts built recognition of legal pluralism into the settlement, creating “difficulties of a particular nature . . . as a result of differences in nationality.”¹³⁷ Debates and deliberations in these cases took more time, interpreters were required, and the backlog in unheard cases grew. So did costs, particularly the costs of appeal, which required travel over some nine hundred kilometers to Algiers.¹³⁸ One might have thought foreign governments would have welcomed the creation of a Tunisian appeals court to reduce the cost and length of the appeals process facing their charges. In the event, however, Britain and Italy were concerned that what protectorate officials really wanted was to bring the appeals process under more direct control of the resident general, whom foreign governments had already accused of excessive influence over the justice system.¹³⁹ As the British consul put it, rumors abounded within and beyond the Maltese population that the addition of new judicial powers would transform the resident general into an “oriental despot.”¹⁴⁰ Interestingly, the proannexation lobby among French settlers in Tunis also opposed the reform for the same reason: they wanted annexation, not a more powerful protectorate. In the end, however, what blocked the institution of the appeals court was Italy’s insistence that the Protocol of 1884, by which it had agreed to suspend its consular jurisdiction, guaranteed that no changes in judicial structure could be made in Tunisia without obtaining the prior consent of the Italian government.¹⁴¹

There was no small irony here, for Cambon had insisted on “ending” European extraterritoriality in Tunisia so as to buttress French authority there. Thanks to reforms instituted by Cambon and his successors, consuls were indeed directly involved to a far lesser degree in the day-to-day workings of the justice system. But this hardly prevented their clients from using—and no doubt sometimes abusing—the ongoing recognition of extraterritorial jurisdiction that was built into the agreements to close European consular courts. Instead of overseeing the application of a uniform rule of law to all Europeans, French judges in Tunisia found themselves interpreting a bewildering variety of European civil codes. France allowed for divorce; Italy did not. Spain recognized religious marriage; France recognized only civil marriage. Malta had its own civil codes, which differed from British, not to mention French, law. Inheritance laws differed across European states and thus among European nationals in the protectorate. Faced with this legal pluralism, French courts applied foreign civil codes, first cautiously, by drawing on foreign legal advisers, then increasingly confidently, drawing on their own growing expertise.¹⁴²

• • •

Whatever confidence experience gave the French courts in adjudicating the claims of Tunisia’s various “Europeans,” the central problem remained. France had only eliminated the institutional loci of extraterritoriality, not the phenomenon itself, since Article 4 of the Treaty of Ksar Said obliged France to recognize the bey’s prior treaties with other powers. One wonders, as the conservative deputy Jules Delafosse did as early as July 1882, “if those of you who voted the Treaty of Bardo, and who supported its full enforcement, imagined the potential consequences of such an arrangement.” Delafosse was notoriously hostile to the colonial enterprise in Tunisia, but his observation that Article 4 invited a “perpetual lawsuit [procès] with the entire world” was in many ways prescient.¹⁴³ By the 1890s, the jurisdictional maneuvering of Tunisia’s “Europeans” brought even supporters of the protectorate to similar conclusions. Something had to be done to rein in the extraterritorial rights of Italy and Britain. The question was what.

Some thought the solution was annexation, pure and simple. Mostly, these were a small but loud group of disgruntled French settlers who resented the special privileges accorded to non-French Europeans and who, observing the powerful settler lobby in neighboring Algeria, wanted to emulate it. These settlers were tired of the “heavy obligation” that the Bardo Treaty had bequeathed, A. Goguyer wrote in a newly launched newspaper, La Libre Dépêche, in June 1893. They believed that if Tunisia were annexed, “all the anglo-tunisian and better yet, italo-tunisian treaties would disappear like so many ghosts, so many nightmares that have haunted us for fourteen years, because of an old Minister of Foreign Affairs.”¹⁴⁴ The “old Minister” was undoubtedly Jules Barthélemy-Saint-Hilaire, who had been seventy-five years old when the Bardo Treaty was concluded.

One did not need to be an avid annexationist to be concerned about the power Italy exercised in the protectorate, however, and while the annexationist cause was often a source of irritation to France’s residents general in Tunisia, it also helped them make a case over the next few years to a revolving door of younger foreign ministers that France must denounce the Italian treaty and renegotiate the British one.¹⁴⁵ In so doing, French officials would get around the problem of Article 4’s recognition of the bey’s preexisting treaties by seeing to it that those treaties were abrogated, thereby ending the system of capitulations in Tunisia once and for all. As the deadline for denunciation of Italy’s 1868 treaty neared, the Dépêche Tunisienne, a paper that often reflected the viewpoint of the residency general, worried openly that the Ministry of Foreign Affairs might neglect to denounce the treaty within a year before its expiration, in which case treaty stipulations held that it would be “considered renewed” for as many years as the original treaty agreement. In that case, “Italy would remain for 28 years an autonomous power just a few hours from Sicily.” Making its case for denunciation, the paper argued that “despite all the sacrifices made by France in Tunisia, despite the immense services rendered to the country by our administration, we are not free in Tunisia.” The rest of Europe had “authorized” France’s protection of Tunisia “in vain,” since a “foreign authority still operates in the Regency. It creates institutions [and] associations that form a State within the State.” France could have, the article went on, “put up with” the extraordinary rights exercised by the large Italian colony in the Regency “in the era before the Triple Alliance was known.” But to do so now, the paper argued, would be irresponsible.¹⁴⁶

The French Ministry of Foreign Affairs did denounce the treaty, just in time. But that, according to the British consul in Tunis, “left matters very much as they were,” with a large and intractable Italian colony in the Regency.¹⁴⁷ Annexationist newspapers began carrying paranoid stories reporting on the martial behavior of Italians recently arrived from Sicily and Pantelleria. Likening the recent “invasion” of Italian immigrants to the “expédition des Mille” during the Risorgimento (almost 2,400 men reportedly arrived in Tunis alone in the course of five months in 1895), La Tunisie Française described the new arrivals as “overloaded with arms, rifle on shoulder, double-barreled pistols on the belt, knife on the side,” sarcastically adding that the Italians claimed to be “out for a pleasure walk with all this bellicose equipment!”¹⁴⁸ Tunisie Française’s editor, the polemicist Victor de Carnières, led the attack on the Italians, libeling famous members of the Tunis Italian community and challenging one of them to a duel when he responded violently to the depiction of him in de Carnière’s paper.¹⁴⁹

In view of these passions, the French government could have simply let the year following the denunciation run out, allowing the treaty to expire in September 1896. Instead, it initiated new treaty negotiations with both Italy and Great Britain, whose own treaty had no expiration date. For Italy, the biggest stumbling block was the implicit recognition that renegotiating the treaty would give France. The 1868 treaty, naturally, had been entered into with the bey. It was thus a “considerable political concession” to “negotiate with France for Tunisia, where, except for the suspension of Consular justice, the pre-1881 status quo is still in force for us.”¹⁵⁰ Italy’s insistence that the capitulations were still operative, treaty or no treaty, was a source of continual frustration for French officials, who contended that once they had established French courts in Tunisia, the rationale for the capitulations (i.e., the protection of Christians from the Muslim justice system) no longer existed.¹⁵¹

Even months into the negotiations, the Italian government still expressed “reservations resulting from the fact of our non-recognition of the Bardo Treaty.”¹⁵² Italy’s position might have been different, Foreign Minister Onorato Caetani di Sermoneta told the French ambassador to Rome, Albert Billot, “if you had eliminated him [the bey] at the beginning and replaced the preexisting regime purely and simply with French sovereignty.”¹⁵³ As Billot told it, he could only laugh in response to this, before adding, “Do you mean to say . . . that the annexation of Tunisia to France would leave no basis for your demands and would remove any cause of trouble? It’s never too late to make good. But, beware! Is it really in your interest to push us in this new direction?” What if, he continued, “we decided to do in Tunis as you yourselves have done in Massawa [Eritrea] and we are doing in Madagascar right now”?¹⁵⁴ Billot’s mention of Eritrea was probably meant to irritate Caetani, since Italian officials under Francesco Crispi had expressed a willingness to make significant concessions in Tunisia if France were willing to engage in some territorial swaps on the Horn of Africa; the idea of the swap, of course, had predated the Italian army’s disastrous experience in March 1896 at the Battle of Adwa [Ethiopia], which had brought the bellicose Francesco Crispi to resign as premier.¹⁵⁵

The new premier, Crispi’s fellow Sicilian Antonio Starabba, the marquis Rudinì, concluded treaty negotiations in the fall. On 28 September 1896, three conventions (on commerce and shipping, consular rights, and extradition) were signed, leaving Crispi to lament

The Italian-Tunisian treaty is a renunciation of all our rights and privileges in the Regency. With great care and in due form we had protected these privileges and, in a single blow, they came to be nullified.

We have sacrificed 50/t [50 thousand] Italians who reside in the Regency.¹⁵⁶

More than the rights of the individual Italians in Tunisia, though, Crispi seemed to regret what the treaty meant for Italy relative to France as a colonial power. “Watch what France is doing,” he noted in his diary in November 1896. “She is working on making an African empire from Madagascar to Tunisia.”¹⁵⁷

Crispi’s reactions to the agreement, like those of other treaty opponents in the Italian parliament, give the impression of Italy’s power in the protectorate being reduced to nil by the 1896 conventions.¹⁵⁸ In a nominal sense, this was true. The conventions and the beylical decree of 1 February 1897, which “definitively” abrogated “treaties and conventions of all kinds relative to Tunisia,” terminated the capitulations by nullifying the treaties upon which they were based.¹⁵⁹ In effect, with the new diplomatic agreements, Italy finally recognized the Bardo Treaty and the French protectorate, and it put to rest any pretension it had to establish its own official colony there.¹⁶⁰ And yet, the 1896 conventions guaranteed virtually all the same rights as had the capitulations. “In essence,” the French civil controller in Tunis, Charles Monchicourt, wrote during a much later period of conflict with Italy over Tunisia, “the conventions of 1896 were nothing other than Capitulations concealed by a coat of modern varnish.”¹⁶¹ Aside from the “political concession” of negotiating with France as the representative of Tunisia, then, Italy’s most substantial compromise was to agree that its “most-favored nation” status pertained only in relation to third powers, not France. For a government that once vociferously protested Roustan’s assumption of the title “The French resident and delegate [to the bey] for external affairs,” this was no trivial matter.

However symbolically humiliating the 1896 conventions were to Italy, they nonetheless guaranteed Italians many concrete rights in Tunisia. Although the commercial convention subjected Italian goods to the French minimum tariff, this commercial blow was softened by a clause allowing Italians to practice cabotage (the transport of goods or passengers between two ports in the same country) along the Tunisian coast, which was not allowed French boats in Italian waters. Italians also would be allowed to fish freely in Tunisian waters, ending French efforts to extend to the Tunisian coast an 1888 law forbidding foreigners from fishing in the territorial waters of France and Algeria. Probably these concessions to Italian boats and fishermen were made in recognition of how sparse French settlers were just fifteen years after the establishment of the protectorate. As the Dépêche Tunisienne put it, “we have never desired that they [Italian fishermen] should leave our coasts; for a long time to come they will be impossible to replace.”¹⁶² Nonetheless, in 1904, when Italians still dominated anchovy and sardine fishing and made up fully half of the sponge fishermen in Tunisian waters, protectorate officials rued the treaty’s cabotage and fisheries concessions, which had created, in their view, a “serious obstacle to maritime colonization by the French.”¹⁶³ Similar complaints would arise in 1924, but the very problem of Italian dominance in the Tunisian fishing industry made it difficult to reverse Italy’s long-held rights. The disappearance of Italian boats and fishermen would, it was thought, disrupt the alimentary provision of the protectorate.¹⁶⁴

For its part, Britain also renegotiated its treaty, even though it did not have to. Only a few months before the Italian conventions had been signed, the British consul had mocked the

modest position which he [the Resident General] proposed to assign to Great Britain and Italy in their future Commercial relations with Tunis—views founded on the idea which with amusingly naïve frankness he more than once conveyed to me, that England would humbly throw up her Treaty and gratefully submit to any terms which France might choose to dictate, while Italy was to receive only such crusts as France might choose to throw her.¹⁶⁵

The fact that Britain did not “humbly throw up her Treaty” led Resident General René Millet to vacillate between showing solicitude toward the community of British subjects in Tunis and threatening annexation, which he correctly ascertained “might have some weight in persuading Her Majesty’s Government to come to terms as to the new Treaty.”¹⁶⁶ Indeed, Lord Salisbury, the British prime minister, was quite concerned about the precedent established by Madagascar, where Britain had recognized France’s protectorate in 1890 and the French had promised to respect Britain’s prior treaty rights on the island. Despite repeated assurances that France had no intention of annexing Madagascar, this is precisely what happened in the wake of France’s 1895 invasion.¹⁶⁷ Relations in the colonies between France and Britain were in general tense at this time, and many feared that the ongoing “race to Fashoda” might end in war. Although the Fashoda conflict did not, according to historian Arthur Marsden, “cause Salisbury sleepless nights,” the prime minister did feel some urgency to avoid unnecessary colonial conflict.¹⁶⁸ Britain thus agreed to many of France’s terms, while Italy ended up with much more than crusts of bread. In the Franco-British agreement of September 1897, only cotton products emerged exempt from the French minimum tariff. Given the importance of cotton to British commerce, this was hardly a small concession by France. Yet Italy secured far more from France than did Great Britain, despite the fact that Britain’s treaty with the bey, unlike Italy’s, had not been set to expire. This was ironic, since the whole point of initiating discussions with Britain in the first place had been to leverage negotiations with Italy. When Italy gave in first, the reverse occurred, and it was the British government that was isolated. Article I of the Convention between Great Britain and France gave up all of Britain’s special rights under the capitulations, stipulating that the British government “will abstain from claiming for its Consuls, its subjects, and its establishments in the Regency of Tunis other rights and privileges than those secured for it in France.”¹⁶⁹

The conventions with Italy, on the other hand, went far beyond the vague guarantees of the capitulations to institute numerous positive rights for Italians, including the free exercise of virtually all “liberal professions” (lawyer, doctor, dentist, pharmacist, engineer, and so on) without a French diploma. The agreement maintained the “status quo” for the Italian hospital and for the twenty-one royal schools and two private Italian schools operating in the protectorate. Although the conventions included an extradition agreement, much like that signed by Britain in 1890, Italians could still request assessor pools composed in half of Italians. Most important, the conventions guaranteed Italians and their descendants born in Tunisia the right to maintain Italian nationality, a right that Resident General Millet had vowed to eliminate little more than a year before.¹⁷⁰ Protectorate officials would regret the concession regarding Italian nationality for decades to come.

All in all, the French government’s concessions to the Italians gave the impression, as Paul Doumer put it, of “amazement and disbelief.” A ministry presided over by the protectionist Jules Méline, the man behind the famous Méline tariff of 1892, had concluded a treaty “where it appears that France gave everything without there being any indication that the slightest thing was conceded in exchange.”¹⁷¹ Doumer, who had been finance minister under Méline’s predecessor, Léon Bourgeois, may have had an ax to grind. But his conclusion had become by now a common refrain: “the Italian colony will continue to constitute a State within the State.”¹⁷² That had been the complaint launched against the Bardo Treaty at its inception. After fifteen years of reforms tightening France’s hold on the protectorate, the remark remained apt.

• • •

France’s struggles to assert judicial power in Tunisia demonstrate the complications of its imperial project in North Africa. French rule in Tunisia engendered a division, first of all, within France’s own leadership: Some wanted to annex the territory outright, while others favored the indirect form of rule offered by the protectorate. Among the latter group, officials like Paul Cambon became increasingly aggressive in their efforts to end the capitulations in large part to outflank those who favored direct rule.

Convincing the military leadership that French civilians were in control required proving that other European countries were not. In a nominal sense, Cambon achieved this by securing the agreements of other European governments to close their consular courts. But the French court’s assumption of the role previously played by all European courts did nothing to change the fundamental fragmentation of the Tunisian justice system. Rather, the opening of the French court merely made it, as opposed to the consular courts, the site of claims to European status. Residents of Tunisia continued to seek the legal venues most favorable for the ends they sought, often displaying a well-informed sense of jurisdictional distinctions. Moreover, the conditions French leaders agreed to in order to secure the closure of European consular courts ensured that French magistrates would have to enforce the divergent civil laws of these various countries in their own courts.

By the late 1890s, the French foreign ministry resorted to trying to achieve through diplomatic arrangement what Cambon had expected to occur naturally through the abolition of consular courts. Few would have predicted that France’s authority over other Europeans would remain so contested some fifteen years into protectorate rule. While the treaties of the 1890s gave France the formal recognition as the preponderant European power in Tunisia that it hitherto had lacked, they did not, in practice, entirely end extraterritoriality.

Extraterritoriality, when wielded by Western governments over non-European states, is often a tool of imperialism and as such is usually contested by the native government whose sovereignty is encroached upon by its exercise.¹⁷³ But the case of Tunisia suggests a more complex relationship between extraterritorial sovereignty and imperialism. If, in Tunisia, French invocations of extraterritorial rights as the protecting power did in many respects undermine the local authority of the bey, the extraterritorial rights of other European governments, by contrast, buttressed the bey’s sovereign powers by underscoring the ongoing validity of his international treaties. In this way, the same phenomenon upon which France drew to claim authority over Tunisia’s Europeans also threatened that authority when deployed by other European governments. A legal regime originally designed to protect (or control) the various subjects of European states from alleged discrimination under Islamic law had evolved into a means of continuing the imperial game with France even after it had been recognized as preponderant.