a French-administered justice system? “It would give birth to the idea that Tunisia has not fallen completely and forever under French authority [potestà].”98 In response to another petition from 1889, this one signed by 1,165 Italian residents of Tunisia, the Italian undersecretary of state for foreign affairs, Abele Damiani, pledged to denounce the protocol of 1884, by which Italy had agreed to suspend its consular jurisdiction.99 It was probably no accident that these complaints came during Francesco Crispi’s tenure as foreign and prime minister, given that Crispi was modern Italy’s most ardent supporter of an Italian presence in Africa to date. Italy did not, of course, make good on its threat. But this did not prevent the Italian government from raising the specter of reestablishing its consular jurisdiction for a second time in 1893 and yet again in 1895.100 The fact that the Italian government had “suspended” rather than abolished its consular jurisdiction remained a weapon in Italy’s arsenal.
Although the British government had not used the term suspended in its agreement to close its court, it also found reason in the late 1880s to defend its understanding of where French sovereignty started and stopped and where its own prerogatives remained. Within the domain of criminal law, perhaps the most contentious issue was the fate of Paolo (sometimes rendered Pablo or Pedro) Lia, a Maltese subject who in 1866 had been found guilty of manslaughter by an Algiers court in absentia and sentenced to death. Lia had long since moved from Algeria to Tunisia, where he was arrested twenty years after his conviction on an order from the Algiers procureur to appear in court back in Algeria. The British consul in Algiers, Robert Lambert Playfair, questioned the legality of the arrest, “Tunis not being French territory.”101 As the time for Lia’s appearance before the Algiers Assize Court drew near, the correspondence on the affair became more insistent: The Tunis consul general, Thomas B. Sandwith, wished to “resist by every means Lia’s deportation to Algiers,” noting that “as no Extradition treaty exists between France and Tunis, a British subject cannot be deported thence to French territory.”102 Reacting to Playfair’s latest dispatch, Julian Pauncefote, the permanent undersecretary at the foreign office, wrote on it: “My view is that the Bey of Tunis cannot any more than the Sultan of Turkey or the Emperor of China surrender a British Subject to a Third Power”—the Third Power in this case being France, since France’s official role in Tunisia was to protect the bey’s government. And, he continued, “[t]he French cannot exercise greater powers than the Bey.”103 The next reader of the dispatch, with the initials WED (probably William Edward Davidson, the foreign office legal adviser), concurred. Britain had allowed British subjects to come under the jurisdiction of French courts in Tunisia, “but she ha[d] waived nothing more” of their rights. Since it was clear that the bey could not have, prior to the advent of the protectorate, “surrendered a British subject to the French authorities in respect of a crime committed in French territory,” Davidson wondered “how can it possibly be contended that the French can without our consent, exercise greater powers over British subjects than it was in the competence of the Bey, from whom they derive their title, to grant them?” Concluding his remarks, Davidson wrote, “I cannot doubt that this is an outrageous assumption on the part of the French or that we must enter [?] and maintain a strenuous protest against it.”104 Pauncefote then concluded the exchange of views, this time directing his remarks to Lord Iddesleigh, the foreign minister: Britain should protest against sending Lia to Algiers and should oppose French efforts to “exercise any Jurisdiction over him in respect of an offence committed outside of the Regency.”105 The French, too, were determined to stand their ground: “This protest cannot affect the course of French justice,” the Algiers procureur told Playfair.106 And yet the British did succeed in forcing the French to (forgive the pun) play fair: Britain blocked Lia’s extradition to Algeria and, as of January 1887, the charges against Lia were dropped—perhaps in part due to protests from Tunisia’s Maltese community (even the British consul “was not prepared for the extent of the sympathy which this man’s cause has called forth”).107 No wonder that, soon thereafter, France initiated treaty discussions regarding criminal extradition with Britain and Italy.
• • •
While the impact of international relations on criminal law in Tunisia was important, its effect on civil law was even more pervasive. Because the diplomatic compromise affected marriage, divorce, inheritance, taxation, property rights, and other important domains of civil law, it greatly influenced the way people understood and experienced French power and, in so doing, shaped Tunisia’s colonial civic order. Residents of Tunisia exploited the ambiguity of the protectorate arrangement, attempting to invoke whatever jurisdiction served their immediate interests. Indeed, the question of who was “European” was less clear-cut than it might have seemed. Thus, even after the French successfully negotiated the suppression of the capitulations in treaties with European states, bringing all “Europeans” under the umbrella of the French courts did not necessarily bring them to identify with French legal norms, nor did it create a community of interest within the so-called European population.
Civil law cases demonstrate how competing European legal codes penetrated family relationships in Tunisia for decades following the closure of consular courts, since the treaties suspending the consular jurisdictions stipulated that in civil law matters—such as marriage, divorce, and inheritance—the personal, rather than residential, status of the individuals involved should determine which country’s laws would be applied. Recognizing personal status was not an innovation in the domain of international private law, but it took on special significance in Tunisia, where the fluidity of social identity made it possible for a single individual to belong to more than one group in his or her lifetime or to invoke different identities in different circumstances—especially once sumptuary laws that had distinguished persons of different religions fell into disuse or were lifted.108 The division between “Europeans” and “natives” not only failed to account for this fluidity but also did not prevent individuals from trying to exploit the new juridical situation to their personal advantage.109 Take, for instance, a complaint addressed to the British consul in 1896 by one Messaouda Bessis, wife of Echoua Smadja, a Jewish Maltese subject.110 In her letter written in French and signed in Hebrew lettering, Mrs. Smadja asked the consul to do something about the fact that her husband had taken a concubine whom he made his second wife, by virtue of a contract witnessed by Jewish notaries. Invoking her husband’s status as an Anglo-Maltese subject, she asked that the consul see to it that her husband was placed on trial in the “courts that replaced consular jurisdiction,” that the “Anglo-Maltese law on bigamy be applied to him,” and that the second marriage be annulled.111 Interestingly, her argument regarding her husband’s bigamy rested on her own marriage to him before local Jewish notaries.112 It is hard to know from her letter whether Mrs. Smadja personally identified with Malta or for that matter with what she called Anglo-Maltese law. But she clearly understood that the only way to legally challenge her present family situation was to insist on that identity. Her plea is also revealing inasmuch as it demonstrates her understanding that the consulate no longer ran courts. But she also still expected the consul, some twelve years after the closure of Britain’s consular court, to serve as her intermediary to the French court. The Sousse vice consul himself was unsure enough of how to reply that he forwarded her letter to the consul in Tunis, who in turn sent it on to the foreign office in London, only for it to receive a scribbled dismissal: “surely a question for decision by [the French] Tribunal?”113 The direct intervention of consuls in legal matters was now gone, but the impact of the capitulations remained.
Marriage and divorce disputes were prominent among the civil cases heard in the new French court. Indeed, the fact that divorce had again become legal under French law in 1884 no doubt influenced the kind of suits individuals filed.114 When a woman called Antonia sued her husband, André, for divorce, for instance, he tried to claim that his wife had no right to divorce him, because she was Italian and Italian law did not allow for divorce. The court found this argument moot because Antonia, although originally Italian, had become French automatically upon marrying André, and French law did allow for divorce. Moreover, her grounds for divorce were justified, as André maintained a concubine in the conjugal home and had fathered a child by
