Divided Rule - Mary Dewhurst Lewis

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in Egypt.43 Cambon surely feared that Britain and other powers could endeavor to check French power in Tunisia in much the same way, if Tunisia’s capitulations were maintained or if a system of mixed courts were established.

      Instead, with talks still ongoing, Cambon inaugurated the first French court in Tunis to great fanfare. This fait accompli surely owed something to the slowing of diplomatic negotiations. But Cambon also had grown increasingly concerned in the early months of 1883 that French military authorities were becoming “by the force of circumstance, the only administrative power in the country.”44 Establishing civilian courts was one aspect of his struggle to root out military influence in Tunisia. How ironic, then, that in inaugurating the new court in Tunis, he relied on martial symbolism to herald the event. The new magistrates and court auxiliaries—a total of seventy-six for the civil, criminal, and correctional courts of Tunis (another court would open in the coastal city of Sousse a few years down the road)—disembarked at Goulette harbor outside Tunis on a French warship arriving from Algeria.45 Cambon himself arrived at the ceremony on 24 April “escorted by a cavalry squadron,” while troops lining the plaza in front of the courthouse “completed the display.” The ceremony was attended by all the representatives of foreign governments in Tunisia, as well as the new bey, Ali (in office since the death of his brother, Muhammad al-Sadiq, six months before). Cambon made a point of lauding the protectorate form of governance, as well as promising that it would always respect “local traditions and customs.”46 At the same time, however, he drew on classic republican rhetoric as he informed the new court officials of their duty: “Your mission is not only to establish French justice here, [and] to make it beloved and respected” by those to whom it already applies, “but also to make it desired by those who still escape its jurisdiction.”47 By this, Cambon did not mean Tunisians (whose access to the French justice system he strongly opposed) but rather non-French Europeans. Were French judges, an onlooker might have wondered, to be the “hussards of the republic” like teachers in the metropole?48 The symbolism of the inaugural ceremony was enough to make the Italian consul, at least, wonder if all Europeans would find impartial justice in the new courts.

      The inauguration of the court was possible because the French parliament had passed a law sanctioning it on 27 March 1883, made applicable in Tunisia through a beylical decree of 18 April. A few weeks later, another beylical decree prospectively extended the jurisdiction of French courts to nationals from foreign countries that renounced their capitulatory rights.49 Thus, a dual justice system was established. Europeans, once the consular courts were closed, would fall under the authority of French courts, while Tunisians would continue to be subject to beylical justice, a system including the wizara (state secular) court, Muslim sharia courts, and, for cases of Jewish personal law, grands rabbins who served as judges.50 Native Muslims and Jews would fall under French jurisdiction only when they were accused of felonies [crimes] against European persons or property, though reforms later extended this principle to misdemeanors [délits].51 In practice, the native justice system relied on quwwād (Muslim local officials, plural of qā’id) to render justice swiftly—and thus cheaply. Cases were to be referred to the court system only if they “exceed[ed]” the qā’id’s “expertise.”52 The major exception to the ratione personae logic of the protectorate’s dual justice system was property law, which continued to fall under Islamic jurisdiction. Reforms changed this in 1885 by placing “registered” property under the jurisdiction of the French court.53 France secured reforms to the Tunisian justice system by virtue of its 8 June 1883 La Marsa Convention, whereby the bey agreed to make all domestic financial, judicial, and administrative reforms deemed necessary in the future by the protecting power. It was in the La Marsa Convention that the word protectorate, which had been absent from the Bardo Treaty, finally appeared.

      Finally, the holdouts among the European governments acquiesced, almost a year after the framework for French legal institutions was in place. Among the demands from Great Power governments were that their nationals be indemnified for damages to their property occurring during the French invasion and subsequent insurrections before they would close their courts.54 Although many governments issued conditions for their acquiescence, Italy’s protests were the loudest and its demands the most extensive. Writing to the Italian ambassador in Paris, Foreign Affairs Minister Mancini stressed that France had not yet “adequately taken into account the political and parliamentary constraints” under which his government operated.55 La Riforma, which regularly opposed Mancini on this issue, conveyed the crux of the problem: “Justice,” it wrote, “is not just an official expression of morality but the utmost expression of sovereignty.” To allow consular justice to pass under French authority was therefore to concede “official and effective sovereignty in the Regency” to France.56 Mancini tried to explain the predicament such views put him in:

      It is not . . . that I wish to evade my commitments [to France], as is believed in Paris and as perhaps the French ambassador himself believes. . . . But the government of the Republic must understand that in order to pass these agreements, I have to be fully armed, to be in a position to respond to every objection that is presented to me, to reply to all questions that I am asked.57

      Yet the French were wary of Mancini—after all, he had been instrumental in concluding the Triple Alliance, which had come to public attention earlier that year and by which Germany and Austria-Hungary promised to assist Italy if it were attacked by France. Of course, arguably, Italy had entered into the Triple Alliance in part because France’s occupation of Tunisia presented new dangers to its security.58 Whatever Italy’s motivations for its defensive alliance, the state of European affairs tied France’s hands. France had won Tunisia, but this had not given it free rein.

      Italy demanded first that its 1868 treaty with Tunisia remain in effect, guaranteeing certain commercial privileges and the principle of capitulations—Italy would suspend indefinitely, rather than permanently discontinue, the operation of its consular courts. In addition, it placed conditions on recognizing French jurisdiction: half of the assessors in a trial concerning an Italian defendant should be Italian nationals; Italian nationals should be admitted to the French bar, magistracy, and court employment; Italian law should be applied to Italian nationals in matters pertaining to personal status; Italian protégés should be treated as Italian nationals; and finally, Italians found guilty of capital crimes should be spared the death penalty.59

      Among the Italian demands, the ones regarding assessors, lawyers, and the death penalty posed the greatest problems for the French government. France did not want to grant Italy concessions that were different from those enjoyed by other states, considering itself “obliged to uphold a common standard that offers the same guarantees to all foreigners.”60 Only Italy, and perhaps the British crown colony of Malta, could claim to have enough nationals in Tunisia to make the insistence on jury representation realistic. In the end, France gave both Italians and British subjects the opportunity to request a pool of assessors composed in half of fellow nationals. With respect to attorneys and magistrates, France initially maintained that Italians wishing access to the magistracy would have to be trained in French courts. But when Italy refused this condition, the French conceded that those currently employed as defense attorneys or magistrates at the Italian consular court would be allowed to continue in the French courts, while future magistrates could complete their training under an Italian prosecutor. Only the request, by both Britain and Italy, that Maltese and Italian lawyers be allowed to argue cases in Italian appears to have been outright rejected by France, though a court interpreter for Arabic, Italian, and Maltese was instituted.61 The death penalty stipulations were the most contentious. France claimed that its courts in Tunisia ruled in the name of the French state according to French law; it was therefore inadmissible to modify procedure for Italians with respect to presidential pardons in capital cases, for the French parliament no doubt “would refuse to sanction such an attack on the principle of national sovereignty.”62 Here, too, France secretly surrendered: “The French Government consents to this engagement, but it cannot do so in a public document without prejudicing the exercise of penal law with regard to Italian defendants.”63

      With the exception of this secret clause on the death penalty, Italy’s demands engendered

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