André to win a legal separation case against his wife on the basis of her own infidelities. Once the divorce was legally recorded, this concurrent separation order would have no effect, as the divorce would supersede it.116 But if nothing else, the suit and countersuit showed the extent to which private disputes between husband and wife were resolved (so to speak) through Tunisia’s new legal institutions. Of course, not everyone accepted the intervention of those institutions in their intimate affairs. Monsieur Calleja, a Maltese man, went so far as to appeal a legal separation judgment rendered in his wife’s favor by the Tunis civil court, contending that it had no jurisdiction over British subjects. The Algiers appeals court found against him, ruling that, by virtue of the suspension of Great Britain’s consular courts, both the Tunis court and Madame Calleja had been within their rights.117 Although these particular disgruntled husbands failed to evade or manipulate the law to their advantage, their effort to do so reflected a common strategy among men aiming to maintain patriarchal power in the family—or perhaps a common reliance by women on courts to escape that patriarchy.118 Both tactics placed French judges in the position of adjudicating conflicts between husbands and wives, as well as laws not of France’s own making.
Inheritance was an equally vexing problem for the new courts. The Napoleonic civil code held that all children of a deceased French subject should inherit equally. But since the agreements to close the consular courts had recognized personal status laws that differed across Europe, French magistrates found themselves confronted by inheritance laws that were totally unfamiliar to them, a problem exacerbated by protectorate inhabitants’ efforts to manipulate, evade, or work the laws to their best advantage. In 1896, for instance, the surviving parents of a Maltese man tried to use the closure of the British consular court as an excuse to place the inheritance outside the boundaries of law, thereby honoring the wishes of the deceased, Francesco Nappa, who had written a will disinheriting his wife in favor of his parents. To his widow, he had left only the use of the home, provided she did not remarry. When Francesco Nappa’s parents tried to enforce their son’s wishes, the widow Nappa turned their jurisdictional game against them by suing her in-laws in French court. Invoking the Maltese Code of Rohan, she claimed a right to a portion of her husband’s estate. By virtue of the cession of Britain’s capitulatory rights, the French court claimed jurisdiction over the case. Enlisting the advice of a Maltese lawyer, the court found in favor of Widow Nappa, granting her one-quarter of her husband’s estate, as the Code of Rohan allowed for marriages where there were no descendants, provided the surviving spouse had not disgraced the family and had no personal fortune of her own.119
In the Nappa case, the nationality of the adjudicants was not in dispute; rather the authority of the French court was. The plaintiff asked the court to apply Maltese inheritance law; the defendants, on the other hand, invoked their Maltese identity in a failed effort to place their family business beyond the reach of French legal institutions. The French magistrates, meanwhile, had a lot of learning to do. The Code of Rohan dictated radically different inheritance settlements according to the conditions of the marriage in question, and in other cases involving surviving spouses of Maltese men, they were forced to come to different conclusions. No wonder that, as late as 1906, the president of the French Court in Tunis wanted to know if the Residency General would be willing to pay for the acquisition of a resource titled “Collezione di decisioni dei tribunali superiori dell’isola di Malta.” For, if it was relatively easy to learn about Italian law, “the same cannot be said for matters involving Maltese law, which we have every difficulty [toutes les peines du monde] learning about.”120 The difficulty in applying Maltese law was evident from the way in which many of the judgments were written. In a case regarding community property in marriage and the absorption of premarital debt, for instance, the French tribunal wrote, “it does not seem [my emphasis] as if Maltese legislation, which, in many regards was inspired by the Napoleonic Code, would have adopted a different rule.”121 When in doubt about the meaning of Maltese law, the French judges in Tunisia drew analogies to (and inferences from) the laws they knew much better: the Napoleonic Civil Code.122
Other civil cases had first to determine the nationality of the parties to the dispute before the court could proceed to judge the issues on their merit. Making this preliminary determination was rarely as cut-and-dried as French officials wished it to be, and, as a result, protectorate archives are filled with inquiries from the justice administration as to the “true” nationality of a legal party.123 That “true” nationality, however, was often open to interpretation, and claimants used this fact to file suits hinging on nationality. The case of Tesi minors v. Calvo, brought by a legal guardian on behalf of two minor children after the death of their mother, exemplifies such behavior. At issue were the rights of the stepfather, who stood to inherit his deceased wife’s estate. The guardian claimed that the stepfather had been married to another woman before their mother and that, as a result, his second marriage was invalid. The man claimed that he had repudiated his first wife before Jewish notaries on 11 March 1888, some ten years before marrying his second wife. Acting to secure the estate on behalf of the children, the guardian insisted that the stepfather, his family having originated from Livorno, was in fact Italian. Because Italian law did not allow divorce, in effect the stepfather remained married to his first wife, thus rendering his second marriage null. The French court, applying Italian marriage law, found in the guardian’s favor and declared the second marriage annulled. As a result, the Tesi children stood poised to inherit the entirety of their mother’s estate. And what of their half-sibling, born of their mother’s marriage to their stepfather? The court acknowledged that their ruling would render this child illegitimate but dismissed that problem as “irrelevant” to the present case.124
A case between cousins over the distribution of their fathers’ estates presented the court with equally contentious issues. Two brothers, Mardochée and Emmanuel Liscia, who owned property together, had died. Emmanuel’s daughters, having demanded through a guardian their share of the building in question, were countersued by Mardochée’s children, who dismissed their cousins’ claims on the grounds that they were Jewish, and Mosaic Law did not permit females to inherit from their fathers. Finding that Emmanuel Liscia had been Italian at the time of his death, the court thus applied the Italian civil code, which allowed daughters to inherit. The problem then became how to split the house among the heirs.125
Legal conflicts such as these, along with efforts to facilitate the acquisition by Europeans of land for agricultural exploitation, help explain why property law reforms in Tunisia took the form they did. By introducing the procedure of property registration [immatriculation], the French endeavored to circumvent Islamic land law while solving the problem of ambiguous land titles and malleable identities. The 1885 land registration law “allowed the land to acquire . . . a distinct nationality,” regardless of who owned it, for any “registered” piece of property would henceforth be subject to French jurisdiction rather than that of the sharia court.126 Whereas people managed to manipulate nationality, the “national” identity of registered land would be fixed. A July 1888 decree granted a “mixed tribunal” the right to issue new and definitive titles based on reviews of requests for registration.127 These reforms settled some conflicts while engendering others. All too often, according to Auguste Fabry, the president of the French Court in Tunis, registration “instigated oppositions and demands that would have remained in the shadows were it not for the registration process.”128 Fabry was referring to conflicts among native Muslims, some of whom used the property registration process as a way of consolidating land parceled out among many family members into the hands of one or a small number of them. The British government also saw drawbacks to the new legislation, which seemed liable to threaten the hard-won property rights that foreigners had enjoyed in the Regency only since the middle of the century.129 Imagine that a Maltese returns to Malta for a few months, the British consul George Ricketts asked the resident general. By virtue of his absence, he would miss the period of objection to a proposed registration of property, as provided for under the law. Returning to Tunis, he “finds his land registered in some other person’s name?” Worse, the law provides him no opportunity for appeal, and thus, “he loses his property.”130
For
