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
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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
