Divided Rule - Mary Dewhurst Lewis

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crisis for protectorate authorities, since this meant that even the most mundane affairs could escalate into diplomatic rifts. Even as French settlement increased significantly and surpassed the Maltese in size, Italians still outnumbered French nationals considerably. By 1906, for instance, Italians still dominated at 81,000, while the number of French had climbed to over 34,000 and the Maltese had only grown to 10,300.29 Of equal concern were far less numerous “protected persons” or protégés—native Jews and Muslims, often merchants or persons otherwise doing business with Europeans, who had secured the legal protection of one or another European government and who, in so doing, multiplied the instances in which extraterritorial jurisdiction came into play and, more troubling, undermined the strict division between “Europeans” and “natives” when the latter claimed the rights of the former.30 In short, if the extraterritorial sovereignty of other European states, especially Britain and Italy, were allowed to persist, these states could thwart France’s control over the rule of law in Tunisia—not because of the size of the foreign population, but because of the significant number of everyday-life matters these individuals called upon foreign governments to mediate or resolve.31 As Cambon himself put it, the capitulations meant that “the administration can be paralyzed at any moment by the consuls.”32 It was this constant potential for outside intervention that he had in mind when he said France would be cornered if the capitulations were not suppressed.

      There was another corner Cambon wished to avoid being backed into, as well: he wanted to keep France’s expeditionary force from gaining the upper hand in running the day-to-day affairs of the protectorate over civilians such as himself and d’Estournelles. Being caught between the prerogatives of foreign powers and those of France’s own military was frustrating to Cambon, but it ultimately helped produce the institutional change he desired. To quell the military’s power, which had expanded in the wake of insurrections in Sfax and Kairouan, he had to prove that a civilian administration could maintain order and security, which meant better control not only over Tunisia’s “natives” but also over its “unruly” Europeans. To persuade European powers that their interests lay in establishing a permanent French civilian justice system that would act in the name of all Europeans, what better way than to use the threat of arbitrary military justice as the only viable alternative? Indeed, at the time that the Meschino incident took place, Annibale Raybaudi Massiglia, the Italian consul, was convinced that this and other cases were being used deliberately to “open a breach in the capitulations by submitting to military jurisdiction all those accused of infractions [délits] against the army.”33 Once again, the Italian consul proved right. Cambon had been aware of, and had sanctioned, the military’s arrest of Paolo Meschino and others like him.34 But Cambon saw no advantage to relying on military might over the long term. Instead, he believed that French power in Tunisia rested on two reforms: establishing civilian rule and ending the extraterritorial rights of other European powers.

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      Negotiations to end the capitulations started off relatively smoothly for France. By mid-October 1882, Austro-Hungarian leaders, while preferring not to assent officially until others also had done so, nonetheless had informally indicated their willingness to close Austria-Hungary’s court with virtually no questions asked. French negotiators had presented the case to their counterparts in Vienna as analogous to Austria-Hungary’s own actions in Bosnia-Herzegovina, to which reforms the French had conceded immediately. According to the Italian chargé d’affaires in Vienna, Francesco Galvagna, Austro-Hungarian Foreign Minister Gustav Kálnoky had fully accepted France’s argument: “France finds itself in Tunisia in a situation,” Kálnoky had told Galvagna, “having a clear analogy to the occupation of Bosnia and Herzegovina . . . [and] when the imperial [sic] government took, last year, the resolution to suppress the capitulations in the occupied provinces, the French cabinet offered its compliance right away.” This meant, as Galvagna paraphrased Kálnoky, that the “Vienna Cabinet cannot refuse its consent to the Government of the Republic for the abolition of the capitulations in Tunisia.”35 Germany, too, had few reservations. Of course, like Austria-Hungary, it also had very few direct interests in Tunisia. Because representatives for both Germany and Austria-Hungary did not need to worry about the practical effects that suppressing consular jurisdiction would have on their subjects in Tunisia, having virtually none there, they were able to respond to French queries with purely diplomatic interests in mind. Moreover, in the case of Austria-Hungary, conceding to French wishes seemingly offered its own maneuvers in Bosnia-Herzegovina greater legitimacy. From Italy’s perspective, on the other hand, there was a “quite remarkable” difference “between the juridical status of Bosnia, entrusted [affidata] by a European treaty to the complete administration and responsibility of the Austro-Hungarian government, and the condition of the Regency of Tunisia, where France’s only qualification [titolo] is the treaty of Bardo,” a treaty that, Mancini hastened to add, “guarantees vis-à-vis other powers, the maintenance of all existing international agreements.”36

      In its discussions with Great Britain, the Quai-d’Orsay invoked both the Bosnia-Herzegovina analogy and that of Cyprus, where Britain had imposed its own judicial system. At first, it looked as if Britain would be receptive to this line of thinking. In mid-October, for instance, Lord Granville reported internally that in his view, “a country like France . . . had the means of introducing judicial institutions [in Tunisia] which would ensure substantial justice to foreigners.” As long as Britain’s commercial rights and privileges continued to be protected, “it was in the interest of British subjects and of commercial progress and civilization to agree to the introduction of any well-devised judicial system to replace the present imperfect arrangements.”37 Britain’s ambassador to Vienna, Sir Henry Elliott, put it in even starker terms: “no one, who has had occasion for observing the working of the Capitulations, and especially of Consular jurisdiction, can . . . desire their maintenance wherever the establishment of a responsible Government renders their abrogation possible.”38 Perhaps Granville and Elliott had in mind the enormous cost of maintaining extraterritorial jurisdiction in order to protect persons who, as Caitlin Anderson observes, more often than not had never set foot in the United Kingdom and did not necessarily share the interests of the crown.39 After all, Britain’s consulate general in Tunis had been one of its most active in the Ottoman Empire, having been open fifteen hours a day until eleven in the evening, in contrast to most Tunis consulates. The costs of running such a consulate and the desire to avoid diplomatic incidents triggered by protection were enough, according to Anderson, to encourage the foreign office to regard British protected persons throughout the Ottoman Empire “more as liabilities than as assets” by the middle of the nineteenth century.40

      Then, too, at the time that Cambon initiated talks on the capitulations, Britain was preoccupied with events unfolding in Egypt, and Tunisia surely must have seemed a distraction. Although Cambon hardly wanted to see France acquiesce to the control of Egypt by Britain, he did think that a concession regarding Tunisia was the least that France could expect in recompense for allowing this to occur. Instead, the situation in Egypt had thrown the foreign ministry and Charles de Freycinet’s government into disarray, with little time to focus on Tunisia.41 Indeed, rather than the French receiving recompense, it was the other way around. Once Britain’s occupation of Egypt was secure (and it was clear that France would not intervene), the British foreign office began to question the French proposals for Tunisia and demand that certain conditions be met before closing her majesty’s consular court.

      By late November, the Italian foreign ministry had finally captured the ear of members of the British foreign office establishment and proceeded to propose that if consular courts were to be closed, mixed courts rather than exclusively French courts ought to take their place.42 This was exactly the sort of solution Cambon, a former prefect used to centralized authority, wanted to avoid. “Mixed tribunals” already existed in Egypt, where, since 1876, they adjudicated civil and commercial disputes between claimants and defendants of different nationalities under the oversight of fourteen European powers. French officials initially had been wary of Egypt’s mixed tribunals. However, by the time the mixed court system came up for renewal in 1881, the British were poised to edge out French influence in Egypt, and the French government came to see the

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