Divided Rule. Mary Dewhurst Lewis

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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

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