In these cases, everything continued to turn on the litigants’ nationalities. With so much depending on nationality, it is no wonder that individuals tried to maneuver between jurisdictions on this basis. A Jewish man named David Sitbon, for instance, named a Mr. Ricklin as a codefendant in his suit against Hamouda Erassa, on the rationale that Ricklin had “administered” the property under dispute. The court refused to hear the case, arguing that the true parties to the conflict were Tunisian and that Ricklin, the European, had been named in the suit purely as “artifice” in order to get the case moved to French jurisdiction.131 Cases such as Sitbon’s seemed to confirm the assumptions of French legal experts that litigants “would like to avoid the delays and uncertainties of native jurisdictions and instead involve the French court.”132 But in fact, the opposite was also sometimes true. French legal procedure was usually lengthier than native justice, and invariably more expensive, prompting some to evade it in favor of native courts. If Sousse (where a French court opened in June 1888) is typical, numerous persons falling under the jurisdiction of the French court often “found delegates among Tunisians in order to present their cases before Muslim justice . . . , their cases before the French jurisdiction costing too much and the delivery of judgments remaining too slow and especially too uncertain for their capital, generally swallowed up by the cost of pursuit [in the French courts].”133 These “frais de justice” were a common complaint of Tunis-based European consuls. Certainly when Europeans were successful at bypassing the French justice system to their advantage, as in an Italian who had a local qāḍī incarcerate a Tunisian debtor for forty-five days, there was little reason to invoke the costlier European jurisdiction.134 When those efforts were unsuccessful, however, the European courts began to look more attractive. For instance, a Jewish man named Moïse Enriquez suddenly insisted he was “European” when a suit against his debtors in sharia court appeared not to be going his way.135 The French court concluded that the case had to belong to one or the other jurisdiction, not both, for these jurisdictions “derive from two different sovereignties.”136 Enriquez had, as far as the French court was concerned, made clear under which sovereignty he fell by first suing his adversaries in sharia court; he could not change his allegiance midstream.
When Cambon first proposed closing the consular courts, he imagined that Europeans would thereafter follow French law. But the negotiations to close the courts built recognition of legal pluralism into the settlement, creating “difficulties of a particular nature . . . as a result of differences in nationality.”137 Debates and deliberations in these cases took more time, interpreters were required, and the backlog in unheard cases grew. So did costs, particularly the costs of appeal, which required travel over some nine hundred kilometers to Algiers.138 One might have thought foreign governments would have welcomed the creation of a Tunisian appeals court to reduce the cost and length of the appeals process facing their charges. In the event, however, Britain and Italy were concerned that what protectorate officials really wanted was to bring the appeals process under more direct control of the resident general, whom foreign governments had already accused of excessive influence over the justice system.139 As the British consul put it, rumors abounded within and beyond the Maltese population that the addition of new judicial powers would transform the resident general into an “oriental despot.”140 Interestingly, the proannexation lobby among French settlers in Tunis also opposed the reform for the same reason: they wanted annexation, not a more powerful protectorate. In the end, however, what blocked the institution of the appeals court was Italy’s insistence that the Protocol of 1884, by which it had agreed to suspend its consular jurisdiction, guaranteed that no changes in judicial structure could be made in Tunisia without obtaining the prior consent of the Italian government.141
There was no small irony here, for Cambon had insisted on “ending” European extraterritoriality in Tunisia so as to buttress French authority there. Thanks to reforms instituted by Cambon and his successors, consuls were indeed directly involved to a far lesser degree in the day-to-day workings of the justice system. But this hardly prevented their clients from using—and no doubt sometimes abusing—the ongoing recognition of extraterritorial jurisdiction that was built into the agreements to close European consular courts. Instead of overseeing the application of a uniform rule of law to all Europeans, French judges in Tunisia found themselves interpreting a bewildering variety of European civil codes. France allowed for divorce; Italy did not. Spain recognized religious marriage; France recognized only civil marriage. Malta had its own civil codes, which differed from British, not to mention French, law. Inheritance laws differed across European states and thus among European nationals in the protectorate. Faced with this legal pluralism, French courts applied foreign civil codes, first cautiously, by drawing on foreign legal advisers, then increasingly confidently, drawing on their own growing expertise.142
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Whatever confidence experience gave the French courts in adjudicating the claims of Tunisia’s various “Europeans,” the central problem remained. France had only eliminated the institutional loci of extraterritoriality, not the phenomenon itself, since Article 4 of the Treaty of Ksar Said obliged France to recognize the bey’s prior treaties with other powers. One wonders, as the conservative deputy Jules Delafosse did as early as July 1882, “if those of you who voted the Treaty of Bardo, and who supported its full enforcement, imagined the potential consequences of such an arrangement.” Delafosse was notoriously hostile to the colonial enterprise in Tunisia, but his observation that Article 4 invited a “perpetual lawsuit [procès] with the entire world” was in many ways prescient.143 By the 1890s, the jurisdictional maneuvering of Tunisia’s “Europeans” brought even supporters of the protectorate to similar conclusions. Something had to be done to rein in the extraterritorial rights of Italy and Britain. The question was what.
Some thought the solution was annexation, pure and simple. Mostly, these were a small but loud group of disgruntled French settlers who resented the special privileges accorded to non-French Europeans and who, observing the powerful settler lobby in neighboring Algeria, wanted to emulate it. These settlers were tired of the “heavy obligation” that the Bardo Treaty had bequeathed, A. Goguyer wrote in a newly launched newspaper, La Libre Dépêche, in June 1893. They believed that if Tunisia were annexed, “all the anglo-tunisian and better yet, italo-tunisian treaties would disappear like so many ghosts, so many nightmares that have haunted us for fourteen years, because of an old Minister of Foreign Affairs.”144 The “old Minister” was undoubtedly Jules Barthélemy-Saint-Hilaire, who had been seventy-five years old when the Bardo Treaty was concluded.
One did not need to be an avid annexationist to be concerned about the power Italy exercised in the protectorate, however, and while the annexationist cause was often a source of irritation to France’s residents general in Tunisia, it also helped them make a case over the next few years to a revolving door of younger foreign ministers that France must denounce the Italian treaty and renegotiate the British one.145 In so doing, French officials would get around the problem of Article 4’s recognition of the bey’s preexisting treaties by seeing to it that those treaties were abrogated, thereby ending the system of capitulations in Tunisia once and for all. As the deadline for denunciation of Italy’s 1868 treaty neared, the Dépêche Tunisienne, a paper that often reflected the viewpoint of the residency general, worried openly that the Ministry of Foreign Affairs might neglect to denounce the treaty within a year before its expiration, in which case treaty stipulations held that it would be “considered renewed” for as many years as the original treaty agreement. In that case, “Italy would remain for 28 years an autonomous power just a few hours from Sicily.” Making its case for denunciation, the paper argued that “despite all the sacrifices made by France in Tunisia, despite the immense services rendered to the country by our administration, we are not free in Tunisia.” The rest of Europe had “authorized” France’s protection of Tunisia “in vain,” since a “foreign authority still operates in the Regency. It creates institutions [and] associations that form a State within the State.” France could have, the article went on, “put up with” the extraordinary rights exercised by the large Italian colony in the Regency “in the era before the Triple Alliance was known.”
