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,
