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the acquisition of a resource titled “Collezione di decisioni dei tribunali superiori dell’isola di Malta.” For, if it was relatively easy to learn about Italian law, “the same cannot be said for matters involving Maltese law, which we have every difficulty [toutes les peines du monde] learning about.”¹²⁰ The difficulty in applying Maltese law was evident from the way in which many of the judgments were written. In a case regarding community property in marriage and the absorption of premarital debt, for instance, the French tribunal wrote, “it does not seem [my emphasis] as if Maltese legislation, which, in many regards was inspired by the Napoleonic Code, would have adopted a different rule.”¹²¹ When in doubt about the meaning of Maltese law, the French judges in Tunisia drew analogies to (and inferences from) the laws they knew much better: the Napoleonic Civil Code.¹²²

      Other civil cases had first to determine the nationality of the parties to the dispute before the court could proceed to judge the issues on their merit. Making this preliminary determination was rarely as cut-and-dried as French officials wished it to be, and, as a result, protectorate archives are filled with inquiries from the justice administration as to the “true” nationality of a legal party.¹²³ That “true” nationality, however, was often open to interpretation, and claimants used this fact to file suits hinging on nationality. The case of Tesi minors v. Calvo, brought by a legal guardian on behalf of two minor children after the death of their mother, exemplifies such behavior. At issue were the rights of the stepfather, who stood to inherit his deceased wife’s estate. The guardian claimed that the stepfather had been married to another woman before their mother and that, as a result, his second marriage was invalid. The man claimed that he had repudiated his first wife before Jewish notaries on 11 March 1888, some ten years before marrying his second wife. Acting to secure the estate on behalf of the children, the guardian insisted that the stepfather, his family having originated from Livorno, was in fact Italian. Because Italian law did not allow divorce, in effect the stepfather remained married to his first wife, thus rendering his second marriage null. The French court, applying Italian marriage law, found in the guardian’s favor and declared the second marriage annulled. As a result, the Tesi children stood poised to inherit the entirety of their mother’s estate. And what of their half-sibling, born of their mother’s marriage to their stepfather? The court acknowledged that their ruling would render this child illegitimate but dismissed that problem as “irrelevant” to the present case.¹²⁴

      A case between cousins over the distribution of their fathers’ estates presented the court with equally contentious issues. Two brothers, Mardochée and Emmanuel Liscia, who owned property together, had died. Emmanuel’s daughters, having demanded through a guardian their share of the building in question, were countersued by Mardochée’s children, who dismissed their cousins’ claims on the grounds that they were Jewish, and Mosaic Law did not permit females to inherit from their fathers. Finding that Emmanuel Liscia had been Italian at the time of his death, the court thus applied the Italian civil code, which allowed daughters to inherit. The problem then became how to split the house among the heirs.¹²⁵

      Legal conflicts such as these, along with efforts to facilitate the acquisition by Europeans of land for agricultural exploitation, help explain why property law reforms in Tunisia took the form they did. By introducing the procedure of property registration [immatriculation], the French endeavored to circumvent Islamic land law while solving the problem of ambiguous land titles and malleable identities. The 1885 land registration law “allowed the land to acquire . . . a distinct nationality,” regardless of who owned it, for any “registered” piece of property would henceforth be subject to French jurisdiction rather than that of the sharia court.¹²⁶ Whereas people managed to manipulate nationality, the “national” identity of registered land would be fixed. A July 1888 decree granted a “mixed tribunal” the right to issue new and definitive titles based on reviews of requests for registration.¹²⁷ These reforms settled some conflicts while engendering others. All too often, according to Auguste Fabry, the president of the French Court in Tunis, registration “instigated oppositions and demands that would have remained in the shadows were it not for the registration process.”¹²⁸ Fabry was referring to conflicts among native Muslims, some of whom used the property registration process as a way of consolidating land parceled out among many family members into the hands of one or a small number of them. The British government also saw drawbacks to the new legislation, which seemed liable to threaten the hard-won property rights that foreigners had enjoyed in the Regency only since the middle of the century.¹²⁹ Imagine that a Maltese returns to Malta for a few months, the British consul George Ricketts asked the resident general. By virtue of his absence, he would miss the period of objection to a proposed registration of property, as provided for under the law. Returning to Tunis, he “finds his land registered in some other person’s name?” Worse, the law provides him no opportunity for appeal, and thus, “he loses his property.”¹³⁰

      For all the new conflicts that emerged around property registration, there were still plenty over unregistered property. In these cases, everything continued to turn on the litigants’ nationalities. With so much depending on nationality, it is no wonder that individuals tried to maneuver between jurisdictions on this basis. A Jewish man named David Sitbon, for instance, named a Mr. Ricklin as a codefendant in his suit against Hamouda Erassa, on the rationale that Ricklin had “administered” the property under dispute. The court refused to hear the case, arguing that the true parties to the conflict were Tunisian and that Ricklin, the European, had been named in the suit purely as “artifice” in order to get the case moved to French jurisdiction.¹³¹ Cases such as Sitbon’s seemed to confirm the assumptions of French legal experts that litigants “would like to avoid the delays and uncertainties of native jurisdictions and instead involve the French court.”¹³² But in fact, the opposite was also sometimes true. French legal procedure was usually lengthier than native justice, and invariably more expensive, prompting some to evade it in favor of native courts. If Sousse (where a French court opened in June 1888) is typical, numerous persons falling under the jurisdiction of the French court often “found delegates among Tunisians in order to present their cases before Muslim justice . . . , their cases before the French jurisdiction costing too much and the delivery of judgments remaining too slow and especially too uncertain for their capital, generally swallowed up by the cost of pursuit [in the French courts].”¹³³ These “frais de justice” were a common complaint of Tunis-based European consuls. Certainly when Europeans were successful at bypassing the French justice system to their advantage, as in an Italian who had a local qāḍī incarcerate a Tunisian debtor for forty-five days, there was little reason to invoke the costlier European jurisdiction.¹³⁴ When those efforts were unsuccessful, however, the European courts began to look more attractive. For instance, a Jewish man named Moïse Enriquez suddenly insisted he was “European” when a suit against his debtors in sharia court appeared not to be going his way.¹³⁵ The French court concluded that the case had to belong to one or the other jurisdiction, not both, for these jurisdictions “derive from two different sovereignties.”¹³⁶ Enriquez had, as far as the French court was concerned, made clear under which sovereignty he fell by first suing his adversaries in sharia court; he could not change his allegiance midstream.

      When Cambon first proposed closing the consular courts, he imagined that Europeans would thereafter follow French law. But the negotiations to close the courts built recognition of legal pluralism into the settlement, creating “difficulties of a particular nature . . . as a result of differences in nationality.”¹³⁷ Debates and deliberations in these cases took more time, interpreters were required, and the backlog in unheard cases grew. So did costs, particularly the costs of appeal, which required travel over some nine hundred kilometers to Algiers.¹³⁸ One might have thought foreign governments would have welcomed the creation of a Tunisian appeals court to reduce the cost and length of the appeals process facing their charges. In the event, however, Britain and Italy were concerned that what protectorate officials really wanted was to bring the appeals process under more direct control of the resident general, whom foreign governments had already accused of excessive influence over the justice system.¹³⁹ As the British consul put it, rumors abounded within and beyond the Maltese population that the addition of new judicial powers would transform the resident general into an “oriental despot.”¹⁴⁰

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