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
