that France had no intention of annexing Madagascar, this is precisely what happened in the wake of France’s 1895 invasion.167 Relations in the colonies between France and Britain were in general tense at this time, and many feared that the ongoing “race to Fashoda” might end in war. Although the Fashoda conflict did not, according to historian Arthur Marsden, “cause Salisbury sleepless nights,” the prime minister did feel some urgency to avoid unnecessary colonial conflict.168 Britain thus agreed to many of France’s terms, while Italy ended up with much more than crusts of bread. In the Franco-British agreement of September 1897, only cotton products emerged exempt from the French minimum tariff. Given the importance of cotton to British commerce, this was hardly a small concession by France. Yet Italy secured far more from France than did Great Britain, despite the fact that Britain’s treaty with the bey, unlike Italy’s, had not been set to expire. This was ironic, since the whole point of initiating discussions with Britain in the first place had been to leverage negotiations with Italy. When Italy gave in first, the reverse occurred, and it was the British government that was isolated. Article I of the Convention between Great Britain and France gave up all of Britain’s special rights under the capitulations, stipulating that the British government “will abstain from claiming for its Consuls, its subjects, and its establishments in the Regency of Tunis other rights and privileges than those secured for it in France.”169
The conventions with Italy, on the other hand, went far beyond the vague guarantees of the capitulations to institute numerous positive rights for Italians, including the free exercise of virtually all “liberal professions” (lawyer, doctor, dentist, pharmacist, engineer, and so on) without a French diploma. The agreement maintained the “status quo” for the Italian hospital and for the twenty-one royal schools and two private Italian schools operating in the protectorate. Although the conventions included an extradition agreement, much like that signed by Britain in 1890, Italians could still request assessor pools composed in half of Italians. Most important, the conventions guaranteed Italians and their descendants born in Tunisia the right to maintain Italian nationality, a right that Resident General Millet had vowed to eliminate little more than a year before.170 Protectorate officials would regret the concession regarding Italian nationality for decades to come.
All in all, the French government’s concessions to the Italians gave the impression, as Paul Doumer put it, of “amazement and disbelief.” A ministry presided over by the protectionist Jules Méline, the man behind the famous Méline tariff of 1892, had concluded a treaty “where it appears that France gave everything without there being any indication that the slightest thing was conceded in exchange.”171 Doumer, who had been finance minister under Méline’s predecessor, Léon Bourgeois, may have had an ax to grind. But his conclusion had become by now a common refrain: “the Italian colony will continue to constitute a State within the State.”172 That had been the complaint launched against the Bardo Treaty at its inception. After fifteen years of reforms tightening France’s hold on the protectorate, the remark remained apt.
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France’s struggles to assert judicial power in Tunisia demonstrate the complications of its imperial project in North Africa. French rule in Tunisia engendered a division, first of all, within France’s own leadership: Some wanted to annex the territory outright, while others favored the indirect form of rule offered by the protectorate. Among the latter group, officials like Paul Cambon became increasingly aggressive in their efforts to end the capitulations in large part to outflank those who favored direct rule.
Convincing the military leadership that French civilians were in control required proving that other European countries were not. In a nominal sense, Cambon achieved this by securing the agreements of other European governments to close their consular courts. But the French court’s assumption of the role previously played by all European courts did nothing to change the fundamental fragmentation of the Tunisian justice system. Rather, the opening of the French court merely made it, as opposed to the consular courts, the site of claims to European status. Residents of Tunisia continued to seek the legal venues most favorable for the ends they sought, often displaying a well-informed sense of jurisdictional distinctions. Moreover, the conditions French leaders agreed to in order to secure the closure of European consular courts ensured that French magistrates would have to enforce the divergent civil laws of these various countries in their own courts.
By the late 1890s, the French foreign ministry resorted to trying to achieve through diplomatic arrangement what Cambon had expected to occur naturally through the abolition of consular courts. Few would have predicted that France’s authority over other Europeans would remain so contested some fifteen years into protectorate rule. While the treaties of the 1890s gave France the formal recognition as the preponderant European power in Tunisia that it hitherto had lacked, they did not, in practice, entirely end extraterritoriality.
Extraterritoriality, when wielded by Western governments over non-European states, is often a tool of imperialism and as such is usually contested by the native government whose sovereignty is encroached upon by its exercise.173 But the case of Tunisia suggests a more complex relationship between extraterritorial sovereignty and imperialism. If, in Tunisia, French invocations of extraterritorial rights as the protecting power did in many respects undermine the local authority of the bey, the extraterritorial rights of other European governments, by contrast, buttressed the bey’s sovereign powers by underscoring the ongoing validity of his international treaties. In this way, the same phenomenon upon which France drew to claim authority over Tunisia’s Europeans also threatened that authority when deployed by other European governments. A legal regime originally designed to protect (or control) the various subjects of European states from alleged discrimination under Islamic law had evolved into a means of continuing the imperial game with France even after it had been recognized as preponderant.
THREE
The Politics of Protection
PAUL CAMBON HAD TWO GOALS in establishing French courts in Tunisia. The first was to diminish the influence of the French military, which, since the invasion, had assumed much of the responsibility for the rule of law. The second was to end extraterritoriality, which in turn he hoped would root out the influence of foreign governments. As we have seen, he succeeded only in the first goal, because his effort to achieve the second—by closing the consular courts—led the Quai-d’Orsay to grant concessions to the very powers whose influence it sought to limit. European consuls did lose some influence under this new scheme, but as long as extraterritoriality persisted, European governments would still, on a certain level, constitute the “States within the State” that Paul-Henri-Benjamin d’Estournelles de Constant decried.
Even worse, in d’Estournelles’s estimation, was the fact that European protection extended to what he called a “much more troublesome” group, a “race apart, the protégés.” Among these could be included, much to d’Estournelles’s disgust, a
negro, an Arab, or a native who does not speak any of the languages of our continent, but who has disguised himself with a borrowed nationality in order to escape common law. . . . From one day to the next they no longer fall under the authority of their natural judges, are excused from paying the heaviest taxes, and are exempt from military service.1
Throughout the Ottoman Empire, consular protection had begun as a means to secure special legal rights for embassy and consular employees and had expanded into a system whereby European states offered (or often sold) protection to local subjects, especially minorities, as a means of extending their nation’s influence or facilitating its commerce in the territory.2 The status of “protégé” or “protected person” was a vestige of this increasingly common practice. Although this “politics of protection” had helped France extend its influence in Tunisia before the conquest, it now proved an obstacle to the protecting power because such a practice effectively treated “natives” as if they were “European” and thus had the potential to expand the number of individuals
