LITMIR.BIZ

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the protectorate. This was not the first time that a murder committed by Italian nationals in Tunisia had served as a bitter reminder of the concessions France had been forced to grant Italy in order to end consular justice. When the Italian nationals Mauro Drago and Domenico Bernauro were found guilty of murder and aggravated theft in February 1891, for instance, the French procureur de la république [attorney general] in Tunis concluded that the execution of Drago not only would “satiate public opinion” but also would “inspire a salutary fear among gangsters who . . . arrive from Italy and especially Sicily in overly large numbers to commit crimes in Tunisia.”⁸⁴ With reminders from the Italian government and press regarding France’s commitment to the so-called secret protocols (that were obviously no longer very secret), however, the French president commuted the sentence.⁸⁵ Later that same year, Unione, the main Italian newspaper of Tunis, publicized the secret clauses when another Sicilian by the name of Partenico was sentenced to death in Sousse, leading the resident general to wonder what French courts in Tunisia gained by ordering this sentence if it could not be carried out.⁸⁶ The problem posed by the secret protocol remained unresolved when, in 1894, it was compounded by the fact that two Tunisians were condemned to death the same day as the three mafiosi responsible for the Bir-Loubit murders.⁸⁷ If the sentences against the Italians were to be commuted, argued the president of the French court of Tunis, Auguste Fabry, then so, too, should those of Hassin ben Amar and Messaoud ben Bachir, particularly as Fabry considered their crimes lesser than those committed by the Italians. Any other solution might be “perceived by natives as an inequity. Yet it is especially by showing ourselves to be just in their regard that we can win their hearts; among all the principles of our European civilization, the idea of equality before the law is the one that can most easily penetrate their minds and attract them to us.”⁸⁸

      Well-trained French jurist that he was, and relatively new to Tunisia, Fabry seems momentarily to have forgotten that, unlike in the metropole, the justice system in the protectorate quite deliberately had not instituted the principle of equality before the law.⁸⁹ Moreover, he failed to take into account that the structure of the protectorate meant that international law trumped French legal tradition when it came to the treatment of foreigners. Might there be some way around honoring the secret protocols?⁹⁰ “What is the scope of this engagement?” he queried. “Does it impose absolute and unlimited obligations on our Government? Hadn’t France fulfilled it sufficiently by pardoning for more than ten years all Italians condemned to death in Tunis after having committed the gravest crimes?” Moreover, he wondered, did not the fact that Unione, the “mouthpiece [organe]” of the Italian government and its consulate, had published (again) the terms of the secret protocol constitute a violation of that protocol, rendering it void?⁹¹ Fabry’s opinion notwithstanding, the president of the republic felt compelled to honor France’s agreements with Italy regarding the treatment of Italians in Tunisia and thereby commuted Drago and Bernauro’s death sentences to forced labor on 14 May 1895.

      France’s agreements with Italy regarding criminal law did not just pose legal challenges to the young protectorate system; they also posed political ones. Cambon had complained, in 1883, that Frenchmen were judged more harshly than their foreign counterparts because cases involving foreigners continued to be adjudicated in consular courts. Now, differential treatment had been institutionalized within the very French court system that had been designed to bring all Europeans under a common set of laws. Coming at a time of mounting hysteria about Italian criminality, decisions like the one regarding Drago and Bernauro served as unwelcome reminders of the limits on French sovereignty in the protectorate and drove efforts to find other ways to rein in the behavior of Tunisia’s European population. By 1898, after a decade fighting the so-called Italian peril through the courts, Fabry succeeded in convincing the protectorate government to require foreigners to “register” upon entry into the protectorate—a decree applicable to all foreigners but aimed at limiting Italians.⁹² Pretty clearly, French authorities perceived controlling the behavior of Italians in the protectorate as necessary to consolidating French rule in Tunisia.

      That perception was not lost on the Italians themselves, who, by the late 1880s, saw in the heightened French attacks on Italian crime an opportunity to petition for a return to consular justice.⁹³ As one petition scorned sarcastically, “The delinquent is always an Italian, the police always arrest Italians, and only Italians must be capable of delinquency.”⁹⁴ A similar Italian petition, signed by an astounding 1,800 persons (or about 11 percent of the Italian population of Tunisia), added the grievance that in “civil cases [he] who is not Italian is always right” before concluding that “where there is written Liberty, Equality, Fraternity, for the Italian is written No Liberty, No Equality, No Fraternity.”⁹⁵ For the Italian consul, Nicola Squitti, the French attacks on Italians were manifestations of France’s own insecurity, demonstrating that the French had “not resigned themselves to seeing us still wield a great deal of influence in Tunisia.” It was this that explained the “quotidian spectacle of war against Italians in Tunisia.”⁹⁶ Under the circumstances, Squitti supported the petitioners’ request to reestablish consular justice for, in suspending it, Italy had ceded the “only weapon we had in hand.”⁹⁷ Among the advantages of rescinding Italy’s compliance with a French-administered justice system? “It would give birth to the idea that Tunisia has not fallen completely and forever under French authority [potestà].”⁹⁸ In response to another petition from 1889, this one signed by 1,165 Italian residents of Tunisia, the Italian undersecretary of state for foreign affairs, Abele Damiani, pledged to denounce the protocol of 1884, by which Italy had agreed to suspend its consular jurisdiction.⁹⁹ It was probably no accident that these complaints came during Francesco Crispi’s tenure as foreign and prime minister, given that Crispi was modern Italy’s most ardent supporter of an Italian presence in Africa to date. Italy did not, of course, make good on its threat. But this did not prevent the Italian government from raising the specter of reestablishing its consular jurisdiction for a second time in 1893 and yet again in 1895.¹⁰⁰ The fact that the Italian government had “suspended” rather than abolished its consular jurisdiction remained a weapon in Italy’s arsenal.

      Although the British government had not used the term suspended in its agreement to close its court, it also found reason in the late 1880s to defend its understanding of where French sovereignty started and stopped and where its own prerogatives remained. Within the domain of criminal law, perhaps the most contentious issue was the fate of Paolo (sometimes rendered Pablo or Pedro) Lia, a Maltese subject who in 1866 had been found guilty of manslaughter by an Algiers court in absentia and sentenced to death. Lia had long since moved from Algeria to Tunisia, where he was arrested twenty years after his conviction on an order from the Algiers procureur to appear in court back in Algeria. The British consul in Algiers, Robert Lambert Playfair, questioned the legality of the arrest, “Tunis not being French territory.”¹⁰¹ As the time for Lia’s appearance before the Algiers Assize Court drew near, the correspondence on the affair became more insistent: The Tunis consul general, Thomas B. Sandwith, wished to “resist by every means Lia’s deportation to Algiers,” noting that “as no Extradition treaty exists between France and Tunis, a British subject cannot be deported thence to French territory.”¹⁰² Reacting to Playfair’s latest dispatch, Julian Pauncefote, the permanent undersecretary at the foreign office, wrote on it: “My view is that the Bey of Tunis cannot any more than the Sultan of Turkey or the Emperor of China surrender a British Subject to a Third Power”—the Third Power in this case being France, since France’s official role in Tunisia was to protect the bey’s government. And, he continued, “[t]he French cannot exercise greater powers than the Bey.”¹⁰³ The next reader of the dispatch, with the initials WED (probably William Edward Davidson, the foreign office legal adviser), concurred. Britain had allowed British subjects to come under the jurisdiction of French courts in Tunisia, “but she ha[d] waived nothing more” of their rights. Since it was clear that the bey could not have, prior to the advent of the protectorate, “surrendered a British subject to the French authorities in respect of a crime committed in French territory,” Davidson wondered “how can it possibly be contended that the French can without our consent, exercise greater powers over British subjects than it was in the competence of the Bey, from whom they derive their title, to grant them?” Concluding his remarks, Davidson

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