Divided Rule - Mary Dewhurst Lewis

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governments to close their consular courts. But the French court’s assumption of the role previously played by all European courts did nothing to change the fundamental fragmentation of the Tunisian justice system. Rather, the opening of the French court merely made it, as opposed to the consular courts, the site of claims to European status. Residents of Tunisia continued to seek the legal venues most favorable for the ends they sought, often displaying a well-informed sense of jurisdictional distinctions. Moreover, the conditions French leaders agreed to in order to secure the closure of European consular courts ensured that French magistrates would have to enforce the divergent civil laws of these various countries in their own courts.

      By the late 1890s, the French foreign ministry resorted to trying to achieve through diplomatic arrangement what Cambon had expected to occur naturally through the abolition of consular courts. Few would have predicted that France’s authority over other Europeans would remain so contested some fifteen years into protectorate rule. While the treaties of the 1890s gave France the formal recognition as the preponderant European power in Tunisia that it hitherto had lacked, they did not, in practice, entirely end extraterritoriality.

      Extraterritoriality, when wielded by Western governments over non-European states, is often a tool of imperialism and as such is usually contested by the native government whose sovereignty is encroached upon by its exercise.173 But the case of Tunisia suggests a more complex relationship between extraterritorial sovereignty and imperialism. If, in Tunisia, French invocations of extraterritorial rights as the protecting power did in many respects undermine the local authority of the bey, the extraterritorial rights of other European governments, by contrast, buttressed the bey’s sovereign powers by underscoring the ongoing validity of his international treaties. In this way, the same phenomenon upon which France drew to claim authority over Tunisia’s Europeans also threatened that authority when deployed by other European governments. A legal regime originally designed to protect (or control) the various subjects of European states from alleged discrimination under Islamic law had evolved into a means of continuing the imperial game with France even after it had been recognized as preponderant.

      THREE

      The Politics of Protection

      PAUL CAMBON HAD TWO GOALS in establishing French courts in Tunisia. The first was to diminish the influence of the French military, which, since the invasion, had assumed much of the responsibility for the rule of law. The second was to end extraterritoriality, which in turn he hoped would root out the influence of foreign governments. As we have seen, he succeeded only in the first goal, because his effort to achieve the second—by closing the consular courts—led the Quai-d’Orsay to grant concessions to the very powers whose influence it sought to limit. European consuls did lose some influence under this new scheme, but as long as extraterritoriality persisted, European governments would still, on a certain level, constitute the “States within the State” that Paul-Henri-Benjamin d’Estournelles de Constant decried.

      Even worse, in d’Estournelles’s estimation, was the fact that European protection extended to what he called a “much more troublesome” group, a “race apart, the protégés.” Among these could be included, much to d’Estournelles’s disgust, a

      negro, an Arab, or a native who does not speak any of the languages of our continent, but who has disguised himself with a borrowed nationality in order to escape common law. . . . From one day to the next they no longer fall under the authority of their natural judges, are excused from paying the heaviest taxes, and are exempt from military service.1

      Throughout the Ottoman Empire, consular protection had begun as a means to secure special legal rights for embassy and consular employees and had expanded into a system whereby European states offered (or often sold) protection to local subjects, especially minorities, as a means of extending their nation’s influence or facilitating its commerce in the territory.2 The status of “protégé” or “protected person” was a vestige of this increasingly common practice. Although this “politics of protection” had helped France extend its influence in Tunisia before the conquest, it now proved an obstacle to the protecting power because such a practice effectively treated “natives” as if they were “European” and thus had the potential to expand the number of individuals who came under the jurisdiction of foreign powers, notably France’s imperial rivals Britain and Italy. What appears at first blush to be simple racism was also a matter of international power politics.

      Consular protection also raised the possibility that France would face something of an international relations conflict with itself. The border between Tunisia and Algeria was an international one because Algeria had been annexed and Tunisia was merely “protected” by France.3 Muslim Algerians were considered French nationals (albeit not citizens with electoral rights) by virtue of the Senatus Consulte of 1865.4 Because a discriminatory regime of the indigénat (indigenous codes subjecting native Algerians to restrictions of their civil liberties and criminalizing infractions that were not criminal when committed by non-Muslims) prevailed in Algeria, Algerians’ nationality paradoxically ended up conferring more rights upon those who were located outside this supposedly national territory and who could claim consular protection as “Frenchmen” in countries like Tunisia.5 Tunisians, on the other hand, remained beylical subjects rather than French nationals. For all the differences in the legal organization of Tunisia and Algeria, however, colonial rule in each was premised on the notion that “Europeans” and “natives” constituted two distinct classes of people, with corresponding differences in rights. The practice of offering protection in Tunisia threatened that distinction in both Tunisia and Algeria not only because it gave Algerians rights they did not have at home but also because it gave Tunisians an incentive to claim to be Algerian. Thus, the fact that Tunisia and Algeria constituted discrete states under international law posed an even more intractable problem than did foreign patents of protection. After all, if the logic of protectorate rule dictated that France govern through the bey, then the bey had to have his own subjects over whom to rule. In the previous chapter, we saw that preserving the bey’s sovereignty had impeded a smooth transition to French rule inasmuch as it had provided the basis for extraterritorial claims by European governments, fashioned in treaties they had previously concluded with the bey. Yet, as the present chapter will demonstrate, insisting on beylical sovereignty remained essential to French efforts to control native Muslims and Jews. In this domain, France was as dependent on beylical sovereignty as it was interested in diminishing it.

      Absent beylical sovereignty, it would be France, rather than the bey, that levied taxes, conscripted armies, policed behavior, maintained religious institutions, and adjudicated sharia law, among the many other domains of Tunisian statecraft. Taxes (especially head taxes) were deeply resented in Tunisia, and conscription had been partially responsible for rebellion in the preprotectorate era.6 Better to associate such impositions with the local sovereign than with a foreign colonizing power. By recognizing the bey’s authority in these areas, the French were able to administer justice, bring in revenue, and defend Tunisia’s borders without burdening the French taxpayer or identifying the protectorate administration too closely with unpopular taxes and conscription. Indeed, the genius of the protectorate system, French premier Jules Ferry told the Chamber of Deputies on 1 April 1884, was that its preservation of beylical sovereignty “frees us from installing a French administration in this country, which is to say it frees us from imposing significant burdens on the French budget. It allows us to supervise from above, to govern from above, to avoid taking on, in spite of ourselves, responsibility for all the details of administration.”7 Thus, throughout the first decades of the protectorate, the notion that the bey was sovereign was consistently invoked—by the bey himself, as one might expect, and by French protectorate authorities as well. As much as French officials insisted that Algeria was an integral part of France, they maintained that Tunisia was not.

      As the French government strove to consolidate protectorate rule at the end of the nineteenth century, it simultaneously sought to assume control over all “Europeans” (generally presumed Christians) and to ensure that the bey retained authority over all “Tunisians”—Muslims and Jews. As explained in the previous chapter, the effort to bring all “Europeans” under French sovereign authority was thwarted by the ongoing influence of European governments

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