Divided Rule - Mary Dewhurst Lewis

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must enter [?] and maintain a strenuous protest against it.”104 Pauncefote then concluded the exchange of views, this time directing his remarks to Lord Iddesleigh, the foreign minister: Britain should protest against sending Lia to Algiers and should oppose French efforts to “exercise any Jurisdiction over him in respect of an offence committed outside of the Regency.”105 The French, too, were determined to stand their ground: “This protest cannot affect the course of French justice,” the Algiers procureur told Playfair.106 And yet the British did succeed in forcing the French to (forgive the pun) play fair: Britain blocked Lia’s extradition to Algeria and, as of January 1887, the charges against Lia were dropped—perhaps in part due to protests from Tunisia’s Maltese community (even the British consul “was not prepared for the extent of the sympathy which this man’s cause has called forth”).107 No wonder that, soon thereafter, France initiated treaty discussions regarding criminal extradition with Britain and Italy.

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      While the impact of international relations on criminal law in Tunisia was important, its effect on civil law was even more pervasive. Because the diplomatic compromise affected marriage, divorce, inheritance, taxation, property rights, and other important domains of civil law, it greatly influenced the way people understood and experienced French power and, in so doing, shaped Tunisia’s colonial civic order. Residents of Tunisia exploited the ambiguity of the protectorate arrangement, attempting to invoke whatever jurisdiction served their immediate interests. Indeed, the question of who was “European” was less clear-cut than it might have seemed. Thus, even after the French successfully negotiated the suppression of the capitulations in treaties with European states, bringing all “Europeans” under the umbrella of the French courts did not necessarily bring them to identify with French legal norms, nor did it create a community of interest within the so-called European population.

      Civil law cases demonstrate how competing European legal codes penetrated family relationships in Tunisia for decades following the closure of consular courts, since the treaties suspending the consular jurisdictions stipulated that in civil law matters—such as marriage, divorce, and inheritance—the personal, rather than residential, status of the individuals involved should determine which country’s laws would be applied. Recognizing personal status was not an innovation in the domain of international private law, but it took on special significance in Tunisia, where the fluidity of social identity made it possible for a single individual to belong to more than one group in his or her lifetime or to invoke different identities in different circumstances—especially once sumptuary laws that had distinguished persons of different religions fell into disuse or were lifted.108 The division between “Europeans” and “natives” not only failed to account for this fluidity but also did not prevent individuals from trying to exploit the new juridical situation to their personal advantage.109 Take, for instance, a complaint addressed to the British consul in 1896 by one Messaouda Bessis, wife of Echoua Smadja, a Jewish Maltese subject.110 In her letter written in French and signed in Hebrew lettering, Mrs. Smadja asked the consul to do something about the fact that her husband had taken a concubine whom he made his second wife, by virtue of a contract witnessed by Jewish notaries. Invoking her husband’s status as an Anglo-Maltese subject, she asked that the consul see to it that her husband was placed on trial in the “courts that replaced consular jurisdiction,” that the “Anglo-Maltese law on bigamy be applied to him,” and that the second marriage be annulled.111 Interestingly, her argument regarding her husband’s bigamy rested on her own marriage to him before local Jewish notaries.112 It is hard to know from her letter whether Mrs. Smadja personally identified with Malta or for that matter with what she called Anglo-Maltese law. But she clearly understood that the only way to legally challenge her present family situation was to insist on that identity. Her plea is also revealing inasmuch as it demonstrates her understanding that the consulate no longer ran courts. But she also still expected the consul, some twelve years after the closure of Britain’s consular court, to serve as her intermediary to the French court. The Sousse vice consul himself was unsure enough of how to reply that he forwarded her letter to the consul in Tunis, who in turn sent it on to the foreign office in London, only for it to receive a scribbled dismissal: “surely a question for decision by [the French] Tribunal?”113 The direct intervention of consuls in legal matters was now gone, but the impact of the capitulations remained.

      Marriage and divorce disputes were prominent among the civil cases heard in the new French court. Indeed, the fact that divorce had again become legal under French law in 1884 no doubt influenced the kind of suits individuals filed.114 When a woman called Antonia sued her husband, André, for divorce, for instance, he tried to claim that his wife had no right to divorce him, because she was Italian and Italian law did not allow for divorce. The court found this argument moot because Antonia, although originally Italian, had become French automatically upon marrying André, and French law did allow for divorce. Moreover, her grounds for divorce were justified, as André maintained a concubine in the conjugal home and had fathered a child by his mistress.115 Although the court found for Antonia in the divorce proceedings, it allowed André to win a legal separation case against his wife on the basis of her own infidelities. Once the divorce was legally recorded, this concurrent separation order would have no effect, as the divorce would supersede it.116 But if nothing else, the suit and countersuit showed the extent to which private disputes between husband and wife were resolved (so to speak) through Tunisia’s new legal institutions. Of course, not everyone accepted the intervention of those institutions in their intimate affairs. Monsieur Calleja, a Maltese man, went so far as to appeal a legal separation judgment rendered in his wife’s favor by the Tunis civil court, contending that it had no jurisdiction over British subjects. The Algiers appeals court found against him, ruling that, by virtue of the suspension of Great Britain’s consular courts, both the Tunis court and Madame Calleja had been within their rights.117 Although these particular disgruntled husbands failed to evade or manipulate the law to their advantage, their effort to do so reflected a common strategy among men aiming to maintain patriarchal power in the family—or perhaps a common reliance by women on courts to escape that patriarchy.118 Both tactics placed French judges in the position of adjudicating conflicts between husbands and wives, as well as laws not of France’s own making.

      Inheritance was an equally vexing problem for the new courts. The Napoleonic civil code held that all children of a deceased French subject should inherit equally. But since the agreements to close the consular courts had recognized personal status laws that differed across Europe, French magistrates found themselves confronted by inheritance laws that were totally unfamiliar to them, a problem exacerbated by protectorate inhabitants’ efforts to manipulate, evade, or work the laws to their best advantage. In 1896, for instance, the surviving parents of a Maltese man tried to use the closure of the British consular court as an excuse to place the inheritance outside the boundaries of law, thereby honoring the wishes of the deceased, Francesco Nappa, who had written a will disinheriting his wife in favor of his parents. To his widow, he had left only the use of the home, provided she did not remarry. When Francesco Nappa’s parents tried to enforce their son’s wishes, the widow Nappa turned their jurisdictional game against them by suing her in-laws in French court. Invoking the Maltese Code of Rohan, she claimed a right to a portion of her husband’s estate. By virtue of the cession of Britain’s capitulatory rights, the French court claimed jurisdiction over the case. Enlisting the advice of a Maltese lawyer, the court found in favor of Widow Nappa, granting her one-quarter of her husband’s estate, as the Code of Rohan allowed for marriages where there were no descendants, provided the surviving spouse had not disgraced the family and had no personal fortune of her own.119

      In the Nappa case, the nationality of the adjudicants was not in dispute; rather the authority of the French court was. The plaintiff asked the court to apply Maltese inheritance law; the defendants, on the other hand, invoked their Maltese identity in a failed effort to place their family business beyond the reach of French legal institutions. The French magistrates, meanwhile, had a lot of learning to do. The Code of Rohan dictated radically different inheritance settlements according to the conditions of the marriage in question, and in other cases involving surviving spouses of Maltese men, they were forced to come to different conclusions. No wonder that, as late

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