unlike consular protection, nationality could be passed from one generation to the next. In this way, French efforts to restore subjects to the bey posed a dilemma of international law as well as intercolonial governance; it raised fundamental issues about the status of the protectorate, its distinction from a colony, and the rights under international law of French subjects living abroad.
Because Tunisia, unlike its neighbor, had not been annexed, Tunisia and Algeria were distinct territories under international law. In crossing the border into Tunisia, a Muslim Algerian not only left France for a foreign territory but also left behind the many discriminatory indigenous codes applying exclusively to Muslims in Algeria, for, in Tunisia, Algerians’ status as “French subjects” entitled them to consular protection. Indeed, French officials often believed that Algerians living in Tunisia had migrated there deliberately to escape French colonial control, and many, for that matter, had done so.29 Why then, French officials reasoned, should Algerians gain special rights as Frenchmen when their very presence in Tunisia was evidence of their rejection of French rule? With this in mind, a justice department memorandum written shortly after the establishment of French courts opined that the French justice system should
not remove from local jurisdiction the thousands of natives who, although originally from Algeria, only left our colony out of hatred for our domination and who, for many years already, have voluntarily submitted to the Bey’s authority and paid the taxes imposed on all subjects of this Prince.30
In fact, many Algerians did not “voluntarily submit” to beylical authority, and their presence was administratively cumbersome, since a claim to Algerian (and thereby French) status had to be verified before a court case could proceed, taxes could be collected, or a young man could be conscripted. The archives of the general secretary for the Tunisian government are filled with requests from the judiciary aiming to establish an individual’s “true” national identity prior to proceeding with a particular court case.31
The bey had become concerned about Algerians before the establishment of the protectorate, particularly when Algerian rebel operations spilled over into Tunisia.32 Under these circumstances, it can hardly be coincidental that the French consul already had sought to control Algerians’ access to rights as French nationals in Tunisia beginning in 1855.33 Yet his power to do so was limited, since unlike the protégés, Algerians’ rights hinged not so much on consular prerogative as on international law. Algerians had been recognized by jurists as French nationals since 1834, and the 1865 Senatus Consulte made their French nationality (albeit not citizenship) explicit. Therefore, as long as they could prove their Algerian origins and had not lost their “spirit of return” (esprit de retour) to French Algeria, they could not be denied consular protection. Losing the “spirit of return,” by contrast, was grounds for considering former Algerians to have become beylical subjects. When French nationality became inalienable in 1889, the protectorate administration faced a new problem.34 The 1889 law made it increasingly difficult for the administration to argue that Algerians had “lost” their French nationality by moving to Tunisia. At the very moment French officials endeavored to limit the number of European protégés, the 1889 law threatened to give Algerians unprecedented rights as protected persons in Tunisia.35
Moreover, as France extended its imperial reach in Africa at the turn of the twentieth century, the consolidation of rule in one place contributed to new legal complications in another. In 1895, France established the Federation of French West Africa (Afrique occidentale française or AOF), and in 1902, it completed its “pacification” of the Algerian Sahara, incorporating it as the “territories of the south.”36 Although these territorial appropriations solidified France’s position in North and West Africa, they were socially disruptive. “Pacification”—a euphemism for consolidating conquest through force—inevitably displaced populations. In the Western Soudan (now Mali), the establishment of French rule meant that slavery lost its legal standing; this in turn rent local social relations, as former slaves took leave of their masters, migrated in search of work as free laborers, and tried to evade their former masters’ efforts to find new legal means for forcing their return.37 Eager for low-cost labor, farms and mining concerns in Tunisia welcomed migrants displaced by the expansion of France’s empire to its southwest.
Like Algerians before them, migrants from the Western Soudan arriving in Tunisia made the most of France’s territorial acquisitions by demanding protection as “French subjects.”38 Faced with these new demands, administrators in Tunisia found themselves downplaying France’s recent triumphs in the AOF and arguing instead that French authority was “much less effective” in its Soudanese colony than in the Tunisian protectorate.39 It would be perverse, they thought, to offer AOF migrants protection that they were unwilling to give Tunisians. Seeking a legal rationale for this argument, they maintained that there was no law pertaining to the Soudanese that was “analogous” to the Algerian Senatus Consulte. With no legal basis for claiming nationality, the procureur de la république (attorney general) argued, the Soudanese could not be considered French nationals in Tunisia.40 Nor, exactly, were they foreigners. Instead, jurists for the protectorate claimed that Muslim subjects, regardless of geographic origin, owed allegiance to the bey—a Muslim sovereign.41 Here, as in many parts of the French Empire, the leaders of secular France “accommodated” religion where it served their interests to do so.42
The expansion of France’s empire also raised new questions regarding the juridical status of Jews, a matter complicated by their legal standing in Algeria, where the Decree of 24 October 1870 (Crémieux Decree) granted French citizenship to Jews in the annexed portions of Algeria collectively, whereas Tunisian Jews remained native subjects. France’s occupation of the M‘zab, a Saharan oasis zone located south of the annexed departments and home to distinctive Berber Muslim and Jewish cultures, occurred shortly after the Tunisian conquest and almost immediately precipitated a controversy over the legal status of M‘zabite Jews.43 General Félix-Gustave Saussier, the commander of the French army in Algeria, and Charles-Joseph-Marie Loysel, his immediate predecessor, squared off on the question—the latter argued that M‘zabite Jews were citizens, while the former contended that to consider them as such could “compromise the moral success of our occupation” by exempting them from taxes that Muslims of the region paid.44 Both the governor general of Algeria, Louis Tirman, and the justice minister, Paul Deves, agreed with Saussier. As Devès put it, the Crémieux Decree had no bearing on M‘zabites, since it explicitly applied to “native Israelites in the departments of Algeria.” The M‘zab was not part of these departments, and the “the legislature’s intention in 1870 was not to make a law for countries that were not yet French.”45 Devès drew far-reaching implications from his own argument, for he likened the M‘zabites to all other Jews who found themselves outside the territories of Algeria’s three departments at the time of the Crémieux Decree’s promulgation; these Jews and their descendants, he argued, fell outside the decree’s intended application and thus had no claim on French citizenship.
In focusing on the applicability of the Crémieux Decree to M‘zabite Jews, Devès failed to consider whether M‘zabite Jews could be considered French subjects, and thereby enjoy a number of civil rights as Frenchmen, even if they were not full citizens with electoral rights in Algeria. Only full citizenship would exempt them from paying local Algerian taxes, but subjecthood alone was enough to earn them protection abroad. The fact that Tunisia’s resident general reiterated this point in a 1908 directive suggests that there remained considerable confusion or disagreement about their status for many years after the conquest of the M‘zab.46 Indeed, the issue had legal significance beyond the immediate question of Jews’ treatment in Tunisia. The French jurist Émile Larcher, who otherwise supported a broad interpretation of the nationality rights of Algerians living abroad, contended that M‘zabites could not be considered French subjects because the annexation of the M‘zab was unconstitutional. No law or decree tied France to the M‘zab, according to Larcher—only a forceful presence. Considering the M‘zab’s main settlement of Ghardaïa part of the Algiers department was, Larcher
