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THREE

The Politics of Protection

PAUL CAMBON HAD TWO GOALS in establishing French courts in Tunisia. The first was to diminish the influence of the French military, which, since the invasion, had assumed much of the responsibility for the rule of law. The second was to end extraterritoriality, which in turn he hoped would root out the influence of foreign governments. As we have seen, he succeeded only in the first goal, because his effort to achieve the second—by closing the consular courts—led the Quai-d’Orsay to grant concessions to the very powers whose influence it sought to limit. European consuls did lose some influence under this new scheme, but as long as extraterritoriality persisted, European governments would still, on a certain level, constitute the “States within the State” that Paul-Henri-Benjamin d’Estournelles de Constant decried.

Even worse, in d’Estournelles’s estimation, was the fact that European protection extended to what he called a “much more troublesome” group, a “race apart, the protégés.” Among these could be included, much to d’Estournelles’s disgust, a

negro, an Arab, or a native who does not speak any of the languages of our continent, but who has disguised himself with a borrowed nationality in order to escape common law. . . . From one day to the next they no longer fall under the authority of their natural judges, are excused from paying the heaviest taxes, and are exempt from military service.¹

Throughout the Ottoman Empire, consular protection had begun as a means to secure special legal rights for embassy and consular employees and had expanded into a system whereby European states offered (or often sold) protection to local subjects, especially minorities, as a means of extending their nation’s influence or facilitating its commerce in the territory.² The status of “protégé” or “protected person” was a vestige of this increasingly common practice. Although this “politics of protection” had helped France extend its influence in Tunisia before the conquest, it now proved an obstacle to the protecting power because such a practice effectively treated “natives” as if they were “European” and thus had the potential to expand the number of individuals who came under the jurisdiction of foreign powers, notably France’s imperial rivals Britain and Italy. What appears at first blush to be simple racism was also a matter of international power politics.

Consular protection also raised the possibility that France would face something of an international relations conflict with itself. The border between Tunisia and Algeria was an international one because Algeria had been annexed and Tunisia was merely “protected” by France.³ Muslim Algerians were considered French nationals (albeit not citizens with electoral rights) by virtue of the Senatus Consulte of 1865.⁴ Because a discriminatory regime of the indigénat (indigenous codes subjecting native Algerians to restrictions of their civil liberties and criminalizing infractions that were not criminal when committed by non-Muslims) prevailed in Algeria, Algerians’ nationality paradoxically ended up conferring more rights upon those who were located outside this supposedly national territory and who could claim consular protection as “Frenchmen” in countries like Tunisia.⁵ Tunisians, on the other hand, remained beylical subjects rather than French nationals. For all the differences in the legal organization of Tunisia and Algeria, however, colonial rule in each was premised on the notion that “Europeans” and “natives” constituted two distinct classes of people, with corresponding differences in rights. The practice of offering protection in Tunisia threatened that distinction in both Tunisia and Algeria not only because it gave Algerians rights they did not have at home but also because it gave Tunisians an incentive to claim to be Algerian. Thus, the fact that Tunisia and Algeria constituted discrete states under international law posed an even more intractable problem than did foreign patents of protection. After all, if the logic of protectorate rule dictated that France govern through the bey, then the bey had to have his own subjects over whom to rule. In the previous chapter, we saw that preserving the bey’s sovereignty had impeded a smooth transition to French rule inasmuch as it had provided the basis for extraterritorial claims by European governments, fashioned in treaties they had previously concluded with the bey. Yet, as the present chapter will demonstrate, insisting on beylical sovereignty remained essential to French efforts to control native Muslims and Jews. In this domain, France was as dependent on beylical sovereignty as it was interested in diminishing it.

Absent beylical sovereignty, it would be France, rather than the bey, that levied taxes, conscripted armies, policed behavior, maintained religious institutions, and adjudicated sharia law, among the many other domains of Tunisian statecraft. Taxes (especially head taxes) were deeply resented in Tunisia, and conscription had been partially responsible for rebellion in the preprotectorate era.⁶ Better to associate such impositions with the local sovereign than with a foreign colonizing power. By recognizing the bey’s authority in these areas, the French were able to administer justice, bring in revenue, and defend Tunisia’s borders without burdening the French taxpayer or identifying the protectorate administration too closely with unpopular taxes and conscription. Indeed, the genius of the protectorate system, French premier Jules Ferry told the Chamber of Deputies on 1 April 1884, was that its preservation of beylical sovereignty “frees us from installing a French administration in this country, which is to say it frees us from imposing significant burdens on the French budget. It allows us to supervise from above, to govern from above, to avoid taking on, in spite of ourselves, responsibility for all the details of administration.”⁷ Thus, throughout the first decades of the protectorate, the notion that the bey was sovereign was consistently invoked—by the bey himself, as one might expect, and by French protectorate authorities as well. As much as French officials insisted that Algeria was an integral part of France, they maintained that Tunisia was not.

As the French government strove to consolidate protectorate rule at the end of the nineteenth century, it simultaneously sought to assume control over all “Europeans” (generally presumed Christians) and to ensure that the bey retained authority over all “Tunisians”—Muslims and Jews. As explained in the previous chapter, the effort to bring all “Europeans” under French sovereign authority was thwarted by the ongoing influence of European governments in the protectorate, as well as the difficulty of defining precisely who a European was. Given Tunisia’s position as a Mediterranean crossroads, identifying the bey’s subjects was equally difficult. The frequent circulation of individuals between Tunisia and Algeria, Tripolitania, Fezzan, and Mediterranean islands such as Malta defied efforts to locate the origins of many would-be Tunisian subjects and allowed them to have roots in more than one place, or at least to claim that they did.⁸ Movement across international borders thus seriously threatened the bey’s efforts to assert authority over Muslims and Jews, and it raised a more enduring question of national jurisdiction than had patents of protection, since these, after all, had been liable to revocation. In the end, such efforts to clearly distinguish Tunisians from their neighbors highlighted the extent to which the colonial project in one part of the Mediterranean was inseparable from that in another. Since an effective protectorate required a compliant subject population, one of the first orders of French business was to shore up the bey’s domestic sovereignty.

The process of defending the bey’s sovereignty expanded the purview of the beylical state and the protectorate administration while at the same time underscoring the limits of authority in each. The Tunisian protectorate had been imagined in contrast to Algeria: it would be a less invasive, supposedly more enlightened, and most of all cheaper form of imperial governance. Yet, France’s approach to ruling indirectly through the bey turned out to be very labor intensive for the French government. Thus, the very process of reinforcing the bey’s authority paradoxically engendered an increasing degree of French intervention in the day-to-day affairs of beylical administration. This occurred especially in three of the most vital domains of government left under the bey’s nominal authority—taxation, conscription, and justice. Already identified by d’Estournelles as the three domains of statecraft perturbed by the politics of consular protection, each of these also demonstrated the extent to which France’s colonial domination in Tunisia depended on the bey’s ability to assert sovereignty over his subjects. And yet the administration of each of these domains exposed fault lines in authority that protectorate officials constantly scrambled to fill. As French officials intervened more intensively in the everyday affairs of Tunisian government, they incrementally undermined the very logic of protectorate rule, and Tunisia slowly came to resemble a directly ruled colony.

• • •

There was nothing particularly novel about the Tunisian bey insisting that consular protection was at odds with the preservation of his own sovereignty. In 1866, observing the growing numbers of foreign protégés in the Regency, he had decreed that “we do not recognize any protection accorded to Tunisians, and we will continue to treat those with foreign patents of protection the same as our other subjects.”⁹ But the decree was a dead letter, ignored by European consuls. What was new in the 1880s and 1890s was that French officials themselves sought to revive the decree and curtail consular protection. After all, if Tunisia’s legal system were to be divided between “European” and “Tunisian” jurisdictions, one needed to be able to differentiate the two. Consular protection blurred, rather than distinguished, the boundaries between these categories by allowing Tunisians to jump jurisdictions as a result of acquiring foreign protection. Forcing the closure of consular courts had not alleviated the problem posed by this “crowd of clients”¹⁰ because the treaties and protocols signed as a condition of that closure granted protégés the same rights as native-born Europeans. This allowed other European governments to maintain an influence in the protectorate and also created circumstances in which foreign protégés obtained rights from which beylical subjects were excluded. Tunisians could reasonably wonder what benefit France’s protection of the bey conferred when affiliation with another European state seemed sometimes to offer greater personal advantages. This same problem had increasingly compromised the Ottoman sultan’s sovereignty, as growing numbers of dhimmī escaped Ottoman law by virtue of European protection.¹¹ Thus, shoring up the bey’s authority over “native” Muslims and Jews and removing them from European protection were consistent with efforts to increase French control.

The ink had barely dried on the September 1897 Anglo-French Arrangement when protectorate officials asked the British consulate to provide the names of all Britain’s protected persons in the Regency. The most notorious of these were the Ben Ayads, a wealthy family protected by Britain since the 1840s. Property belonging to the Ben Ayads was so substantial that, at the time that the closure of the consular courts was under negotiation, Paul Cambon initially rejected demands to settle Tunisia’s debt to the Ben Ayads, arguing that doing so would have “prepare[d] a new bankruptcy of the Tunisian government.”¹² When the case went to international arbitration, the Ben Ayad family’s claims against the beylical state from before 1870 were dismissed, while its own debts to the government were not.¹³ Ben Ayad emerged the debtor, but the case nonetheless had been a major stumbling block in negotiations between France and Britain over the fate of consular jurisdiction. Now informed of protectorate officials’ desire for a list of British protégés, Consul General Johnston assumed that it portended a removal of protected status altogether and that the Ben Ayads “would dread reprisals for their anti-French policy in the seventies.”¹⁴ Of course, what Johnston was really worried about was that the “transference” of the Ben Ayads from British protection “against their will, and possibly much to their prejudice . . . would have a bad effect on British interests in North Africa.” Thinking beyond the Ben Ayads to the general principle, Johnston also took exception to the notion that “any phrase in the new Convention can be held to indicate that Great Britain intends to annul protection,” or what he called “quasi-citizenship,” if said status was granted prior to the French conquest.¹⁵

Not all in the Foreign Office agreed with Johnston regarding the necessity of maintaining British consular protection in Tunisia. The first reader of the dispatch, a Mr. Robertson (possibly Charles Boyd Robertson, a Foreign Office lawyer), found himself concluding that the “whole sense and tendency” of Article 1 of the 1897 Convention “shows that the object is to abolish special privileges for foreigners.” Under these circumstances, if the French government should, “as Sir H. Johnston puts it, seek to ‘annul the status’ of the Benayad family, it does not seem that we should have any legitimate ground for remonstrance, since that ‘status’ is, virtually, abolished by Treaty.” W.E. Davidson, the Foreign Office legal adviser, concurred. But Lord Salisbury, Britain’s prime minister and foreign minister, had a different view. “With all deference I doubt the above construction,” he wrote. “We have renounced for our Consul in the future the right to give protection. But we have not invalidated the protection which, in all legality, our Consul has given to them in the past. The status of protected person is given once for all and it does not require renewal, though it can be cancelled. But of that there is no question.”¹⁶

Sir Harry Johnston’s fears notwithstanding, French designs were quite in line with Lord Salisbury’s views. Protectorate officials did not want to “take over” protection from foreign governments so much as bring the practice to an end in the future. Accordingly, they were less concerned about the existing protection accorded to the Ben Ayads than about ensuring that it ended with the present generation. Johnston still considered this a “knotty point” and reported he was “personally . . . inclined to think that the status of British protection, once conferred on a man, would descend to his children unless revoked.”¹⁷ On this question, however, the Foreign Office was unified: all concurred with the foreign office librarian Augustus Oakes’s conclusion that “the system of giving British protection to persons of Foreign nationality and continuing it from generation to generation may be said to have been practically abandoned.”¹⁸ Oakes and the foreign office staff had anticipated French demands; over the next year and a half, the protectorate government required all European consuls in Tunisia to review their rosters of protégés; the bey then issued decrees definitively listing the names of persons protected by foreign governments.¹⁹

The impact of the new protégé registry was almost immediate. As early as November 1898, only two months after the bey’s decree issued lists of persons protected by Britain, Spain, Italy, and the Netherlands, courts began using the lists as a basis for judging their jurisdiction in hearing cases. The test case came over a certain Rahmine Boublil, a Tunisian Jew who claimed to be a Dutch protégé. Boublil had pursued one Braham Castro before the Tunis justice of the peace for a debt of 420 francs plus interest that Castro allegedly owed him. Upon the justice of the peace’s ruling in Boublil’s favor, Castro promptly appealed the judgment, claiming that the court was incompetent on the grounds that both he and Boublil were Tunisian. Citing the new protégé list on which Boublil’s name failed to appear, the court argued that it would be an “abuse of power” for it to ignore the “rights belonging to France and to his majesty the bey in Tunisia since the establishment of the protectorate and the suppression of the Capitulations regime.”²⁰ However, the judgment continued, the Boublil case presented extenuating circumstances because the legal proceedings had been initiated before the decree of 1 September and, at the time, Boublil had been considered a protégé. He would be “European” for this case and “Tunisian” in the future. Boublil’s case was probably one of the last of the unlisted protégés for whom the French court in Tunis would claim jurisdiction. Henceforth, only those names on the decrees would be entitled to the benefits of foreign protection, much to the chagrin of those mistakenly left off the lists.²¹ Proceedings in Boublil’s case showed evidence of the residency general’s close watch over the Tunis court’s activity; indeed, the resident general had recently “informed the court that only natives who were registered on this list could claim to status of protégé.”²² This would not be the last time that the residency sought to influence jurisprudence with regard to jurisdictional judgments by the French courts in Tunisia.

With foreign consular protection set to extinguish itself within a generation, the resident general could boast, twenty years after the establishment of the protectorate, of France’s progress in reining in jurisdictional jumping: “European protégés have been registered, and the list of them has been officially issued.”²³ Since protected status could no longer be passed from one generation to the next, the French administration in Tunisia finally stood poised, at the dawn of the twentieth century, to put an end to the politics of protection played by its imperial rivals.

• • •

But what of France’s own politics of protection? If European protégés’ crossing of legal boundaries raised the question of French rivals’ ongoing influence on everyday affairs in the protectorate, the jurisdictional jockeying of Algerian French nationals in Tunisia drew attention to other cracks in France’s imperial edifice.²⁴ The irony of d’Estournelles’s diatribe against the protégés was that if any country had abused the practice of offering consular protection in Tunisia, it had been France. In the preprotectorate era, as France competed with Italy and Britain for influence over Tunisian affairs, the French consul at Tunis not only had offered protection to numerous long-standing beylical subjects but also had deliberately recognized the French nationality of thousands of Muslim and Jewish colonial subjects from other parts of Africa (mostly Algeria) as a means of increasing the number of French nationals in the Regency—a practice that generated protests from the bey and his government.²⁵ Even at the outset of protectorate rule in Tunisia, moreover, French authorities continued to encourage Algerian migration, calculating that it would be helpful to incorporate such “foreigners” into the occupation army.²⁶ Thus, for all that jurists like G. de Sorbier de Pougnadoresse or officials like d’Estournelles decried the “crowds” of native clients who thwarted local sovereignty and upset the colonial racial hierarchy by obtaining foreign protection, the numbers of foreign protégés were minuscule in comparison to the French charges. Indeed, the ability of Algerian Muslims and Jews living in Tunisia to claim French nationality had posed such an obstacle to the bey’s sovereignty that, in the 1870s, his government had proposed a “convention” between Tunisia and France whereby Algerians who had settled in Tunisia for two years or more without declaring to the consulate their intention of remaining French nationals would be considered Tunisian subjects.²⁷

Like the protégés, Muslims and Jews who could claim Algerian (and therefore French) status threatened to undermine the colonial power hierarchy that distinguished the rights of “Europeans” from those of “natives.” Thus, at the same time that French authorities sought to curtail foreign governments’ practices of protection, they also introduced regulations to limit Algerians’ claims to French nationality outside Algeria.²⁸ Removing the special rights of Algerians proved delicate because, as nationals, theoretically they could not be denied French protection abroad. Moreover, unlike consular protection, nationality could be passed from one generation to the next. In this way, French efforts to restore subjects to the bey posed a dilemma of international law as well as intercolonial governance; it raised fundamental issues about the status of the protectorate, its distinction from a colony, and the rights under international law of French subjects living abroad.

Because Tunisia, unlike its neighbor, had not been annexed, Tunisia and Algeria were distinct territories under international law. In crossing the border into Tunisia, a Muslim Algerian not only left France for a foreign territory but also left behind the many discriminatory indigenous codes applying exclusively to Muslims in Algeria, for, in Tunisia, Algerians’ status as “French subjects” entitled them to consular protection. Indeed, French officials often believed that Algerians living in Tunisia had migrated there deliberately to escape French colonial control, and many, for that matter, had done so.²⁹ Why then, French officials reasoned, should Algerians gain special rights as Frenchmen when their very presence in Tunisia was evidence of their rejection of French rule? With this in mind, a justice department memorandum written shortly after the establishment of French courts opined that the French justice system should

not remove from local jurisdiction the thousands of natives who, although originally from Algeria, only left our colony out of hatred for our domination and who, for many years already, have voluntarily submitted to the Bey’s authority and paid the taxes imposed on all subjects of this Prince.³⁰

In fact, many Algerians did not “voluntarily submit” to beylical authority, and their presence was administratively cumbersome, since a claim to Algerian (and thereby French) status had to be verified before a court case could proceed, taxes could be collected, or a young man could be conscripted. The archives of the general secretary for the Tunisian government are filled with requests from the judiciary aiming to establish an individual’s “true” national identity prior to proceeding with a particular court case.³¹

The bey had become concerned about Algerians before the establishment of the protectorate, particularly when Algerian rebel operations spilled over into Tunisia.³² Under these circumstances, it can hardly be coincidental that the French consul already had sought to control Algerians’ access to rights as French nationals in Tunisia beginning in 1855.³³ Yet his power to do so was limited, since unlike the protégés, Algerians’ rights hinged not so much on consular prerogative as on international law. Algerians had been recognized by jurists as French nationals since 1834, and the 1865 Senatus Consulte made their French nationality (albeit not citizenship) explicit. Therefore, as long as they could prove their Algerian origins and had not lost their “spirit of return” (esprit de retour) to French Algeria, they could not be denied consular protection. Losing the “spirit of return,” by contrast, was grounds for considering former Algerians to have become beylical subjects. When French nationality became inalienable in 1889, the protectorate administration faced a new problem.³⁴ The 1889 law made it increasingly difficult for the administration to argue that Algerians had “lost” their French nationality by moving to Tunisia. At the very moment French officials endeavored to limit the number of European protégés, the 1889 law threatened to give Algerians unprecedented rights as protected persons in Tunisia.³⁵

Moreover, as France extended its imperial reach in Africa at the turn of the twentieth century, the consolidation of rule in one place contributed to new legal complications in another. In 1895, France established the Federation of French West Africa (Afrique occidentale française or AOF), and in 1902, it completed its “pacification” of the Algerian Sahara, incorporating it as the “territories of the south.”³⁶ Although these territorial appropriations solidified France’s position in North and West Africa, they were socially disruptive. “Pacification”—a euphemism for consolidating conquest through force—inevitably displaced populations. In the Western Soudan (now Mali), the establishment of French rule meant that slavery lost its legal standing; this in turn rent local social relations, as former slaves took leave of their masters, migrated in search of work as free laborers, and tried to evade their former masters’ efforts to find new legal means for forcing their return.³⁷ Eager for low-cost labor, farms and mining concerns in Tunisia welcomed migrants displaced by the expansion of France’s empire to its southwest.

Like Algerians before them, migrants from the Western Soudan arriving in Tunisia made the most of France’s territorial acquisitions by demanding protection as “French subjects.”³⁸ Faced with these new demands, administrators in Tunisia found themselves downplaying France’s recent triumphs in the AOF and arguing instead that French authority was “much less effective” in its Soudanese colony than in the Tunisian protectorate.³⁹ It would be perverse, they thought, to offer AOF migrants protection that they were unwilling to give Tunisians. Seeking a legal rationale for this argument, they maintained that there was no law pertaining to the Soudanese that was “analogous” to the Algerian Senatus Consulte. With no legal basis for claiming nationality, the procureur de la république (attorney general) argued, the Soudanese could not be considered French nationals in Tunisia.⁴⁰ Nor, exactly, were they foreigners. Instead, jurists for the protectorate claimed that Muslim subjects, regardless of geographic origin, owed allegiance to the bey—a Muslim sovereign.⁴¹ Here, as in many parts of the French Empire, the leaders of secular France “accommodated” religion where it served their interests to do so.⁴²

The expansion of France’s empire also raised new questions regarding the juridical status of Jews, a matter complicated by their legal standing in Algeria, where the Decree of 24 October 1870 (Crémieux Decree) granted French citizenship to Jews in the annexed portions of Algeria collectively, whereas Tunisian Jews remained native subjects. France’s occupation of the M‘zab, a Saharan oasis zone located south of the annexed departments and home to distinctive Berber Muslim and Jewish cultures, occurred shortly after the Tunisian conquest and almost immediately precipitated a controversy over the legal status of M‘zabite Jews.⁴³ General Félix-Gustave Saussier, the commander of the French army in Algeria, and Charles-Joseph-Marie Loysel, his immediate predecessor, squared off on the question—the latter argued that M‘zabite Jews were citizens, while the former contended that to consider them as such could “compromise the moral success of our occupation” by exempting them from taxes that Muslims of the region paid.⁴⁴ Both the governor general of Algeria, Louis Tirman, and the justice minister, Paul Deves, agreed with Saussier. As Devès put it, the Crémieux Decree had no bearing on M‘zabites, since it explicitly applied to “native Israelites in the departments of Algeria.” The M‘zab was not part of these departments, and the “the legislature’s intention in 1870 was not to make a law for countries that were not yet French.”⁴⁵ Devès drew far-reaching implications from his own argument, for he likened the M‘zabites to all other Jews who found themselves outside the territories of Algeria’s three departments at the time of the Crémieux Decree’s promulgation; these Jews and their descendants, he argued, fell outside the decree’s intended application and thus had no claim on French citizenship.

In focusing on the applicability of the Crémieux Decree to M‘zabite Jews, Devès failed to consider whether M‘zabite Jews could be considered French subjects, and thereby enjoy a number of civil rights as Frenchmen, even if they were not full citizens with electoral rights in Algeria. Only full citizenship would exempt them from paying local Algerian taxes, but subjecthood alone was enough to earn them protection abroad. The fact that Tunisia’s resident general reiterated this point in a 1908 directive suggests that there remained considerable confusion or disagreement about their status for many years after the conquest of the M‘zab.⁴⁶ Indeed, the issue had legal significance beyond the immediate question of Jews’ treatment in Tunisia. The French jurist Émile Larcher, who otherwise supported a broad interpretation of the nationality rights of Algerians living abroad, contended that M‘zabites could not be considered French subjects because the annexation of the M‘zab was unconstitutional. No law or decree tied France to the M‘zab, according to Larcher—only a forceful presence. Considering the M‘zab’s main settlement of Ghardaïa part of the Algiers department was, Larcher concluded, “a geographical fantasy.”⁴⁷ At best, he thought, M‘zabites could be considered protégés.

MAP 3. Map of Algeria showing the “Territories of the South,” including the M‘zab. Map by C. Scott Walker.

Other parts of the Sahara posed similar problems. Protectorate officials sometimes had difficulty determining the status of persons who, as the resident general Stéphen Pichon diplomatically put it, “originated from places whose political situation is not clearly established.”⁴⁸ Having in mind people from regions such as the Touat oasis zone (see Map 3), Pichon asked the foreign minister whether it might be an “opportune moment to determine by a common agreement what one means by ‘Algeria’ and ‘territories annexed to Algeria.’” This was a question not only of geography but also of chronology, for it was “equally indispensable to determine from what date the inhabitants are French subjects.”⁴⁹

Pichon’s dilemma illustrated the extent to which the smooth functioning of protectorate rule in Tunisia could be thwarted by the indeterminacy of French rule in other parts of North Africa. Though he called for a “common accord,” his interests actually differed quite dramatically from those of the Algerian governor general, Paul Révoil. Whereas Pichon wanted to know where Algeria stopped and the annexed territories started, the governor general wrote that “there can be no question of a distinction, in my view, between ‘Algeria’ and ‘territories annexed to Algeria.’” As far as “natives of these countries” are concerned, he continued, there was no difference in their nationality. This statement was remarkable because, by Révoil’s own admission, there had been no “annexation properly speaking,” only a “police action in regions that we had always regarded as having belonged to French territory.”⁵⁰ Thus, even though he conceded that it was currently impossible for him to “delimit” the physical boundaries of the southern territories, he nonetheless deemed it important to consider as a French subject any person coming from a place that was under nominal French authority.⁵¹ Never mind that Pichon’s predecessor had just made virtually the opposite argument with regard to migrants from the French Soudan.