Geographies of Power: The Tunisian Civic Order, Jurisdictional Politics, and Imperial Rivalry in the Mediterranean, 1881-1935

In a letter dated November 1883, Paul Cambon, the resident minister of France’s protectorate of Tunisia, confided to his wife that “if the Capitulations aren’t suppressed, we’ll find ourselves backed into a corner [nous voila accules].”1 These Capitulations—similar to legal arrangements prevailing in the Ottoman Empire, of which Tunisia had been a semiautonomous province until the French conquest in 1881—granted a number of legal immunities to foreign nationals and holders of foreign “patents of protection.”2 Why would the senior administrator of France’s new protectorate worry about the legal status of nationals belonging to the rival states it had outmaneuvered to win Tunisia? After all, France had just signed a treaty promising to protect the Tunisian bey’s dynasty in exchange for the right to “occupy all areas deemed necessary for the reestablishment of order and security of both borders and

When Ottoman rulers first entered into capitulatory agreements in the late Middle Ages, they regarded them as beneficial to the Ottoman state, for the legal immunities facilitated international trade and relieved the sultan of responsibility for protecting foreign subjects.Granting Capitulations unilaterally, the sultans understood these privileges (imtiya ¯za ¯t) to be revocable acts of generosity, not permanent cessions of sovereign rights.During the nineteenth century, however, Western powers increasingly interpreted the personal privileges accorded by the Capitulations as justifying blanket extraterritorial rights.As a result, what once had been mutually beneficial legal arrangements began to compromise the sovereignty of the sultan and his regents. 6In Tunisia, the Husaynid dynasty and European powers clashed from the midnineteenth century over similar issues.As in other Ottoman lands, foreign consuls based in Tunis increasingly extended their purview to all nationals of the state they represented, thereby challenging the Husaynid beys' longstanding practice of offering individual protection to those hoping to avoid their consul's authority and bringing to a close a long history of their dependence on beylical power. 7After assuming leadership of France's protectorate in Tunisia, Cambon realized that he could ill afford similar strikes at his legitimacy.In order to establish civilian-and not just military-authority over Tunisia, Cambon resolved to end the claims to extraterritorial sovereignty maintained there by France's imperial rivals.Otherwise, French leaders would find themselves as cornered as the Ottoman Porte, which had struggled to end the abuses of the capitulatory regime since at least the 1850s. 8ambon eventually got his way, as deals were negotiated with Great Britain, Italy, and other European states operating consular courts in Tunisia to cede their extraterritorial rights to France.In exchange, French jurisdiction would extend to all "Europeans." 9 The arrangement rested on a simplistic subjected "all French indiscriminately" to consular jurisdiction.A similar treaty had been concluded between Great Britain and the bey in 1812 (Windler, Diplomatie, 271-77).See also Mongi Smida, Consuls et consulats de Tunisie au XIXe sie `cle (Tunis, 1991); and Brown, Tunisia of Ahmad Bey, 241-44.Brown notes (238 -40) that new challenges to beylical autonomy also came from a newly assertive Ottoman Empire, which reestablished direct control over Tripolitania (in modern Libya) in the wake of France's conquest of Algeria. 8The Capitulations were partially to blame for the Crimean War, as Russia exploited the concept to claim the right to protect all Orthodox Christians in the Ottoman Empire.Tunisia's obligation, as an Ottoman province, to raise armies in the Ottoman defense led indirectly to the establishment of the French protectorate, inasmuch as the vast debt Tunisia thereby incurred contributed to its placement in international financial receivership from 1869.France agreed to assume responsibility for Tunisia's debt and abolished the International Financial Commission after establishing the protectorate. 9Cambon was well aware that this was not the only way of reorganizing Tunisia's justice system.In Egypt, for instance, a system of "mixed tribunals" adjudicating civil and commercial disputes between claimants and defendants of different nationalities was established by fourteen European powers in 1876.The French initially had been wary of the mixed tribunals, though they managed to force a Napoleonic legal system upon the courts.Britain, for its part, had an interest in courting the French to maintain Anglo-French control of Egyptian finances (Roger Owen, Lord Cromer: Victorian Imperialist, Edwardian Proconsul [Oxford, 2004], chap.8).By the time the courts came up for renewal after a five-year trial period, however, Great Britain stood poised to edge out French influence in Egypt.From this point forward, the French came to see the mixed courts as a way of checking Britain's ability to extend its influence in Egypt.The mixed courts did not do away with the Capitulations, and, as French authorities knew well from their experience in Egypt, "consenting to restrictions on capitulatory privileges would only strengthen the British position" (Nathan J. Brown, "The Precarious Life and Slow Death of the Mixed Courts of Egypt," International Journal of Middle East Studies 25, no. 1 [February 1993]: 37, 33-52).Cambon surely feared that Britain and other powers could endeavor to do in Tunisia what France had done in Egypt if the Capitulations were maintained or if a system of mixed courts were established.Cambon's detractors-both those in favor of abandoning the protectorate and those advocating its direct annexation-also saw the Capitulations, and the Bardo Treaty's recognition of them, as an obstruction to French influence (Ali Mahjoubi, understanding of "European" and "local" as clearly bounded identities: France would "protect" local sovereignty and the judicial practices associated with it for "natives," while "Europeans"-as "foreigners"-would fall under French authority.Yet this conception of "local" and "European" failed to account for the fluidity of social life in Tunisia-a veritable crossroads of the Mediterranean where Muslims, Jews, and (thanks to recent migration) Christians of diverse regional origins had become accustomed to maneuvering within systems of legal pluralism to take advantage of whichever laws best furthered their social goals in a given instance. 10The advent of the protectorate did not entirely curtail this flexibility.One thing that did change, however, was the manner in which such shifting allegiances engaged the international system, itself increasingly organized around distinct national states whose claims for legitimacy often rested on the notion of comprehensive and exclusive territorial sovereignty. 11Underlying the French legal system in Tunisia was an assumption that all Europeans shared interests at the very moment that their states sparred with each other throughout Africa for influence.In fact, however, the coincidence of renewed imperial rivalry and a burgeoning international state system helped encourage local-level scrambles for influence between European states while at the same time giving new meaning to Maghribians' legal strategies. 12Although the social motivations for such legal maneuverings remained similar to those of the precolonial period, the conse-L'e ´tablissement du protectorat franc ¸ais en Tunisie [Tunis, 1977], 59ff).Thanks to Roger Owen for sharing thoughts with me on Anglo-French relations in regard to Egypt's legal system. 10The legal pluralism of the preprotectorate era laid the groundwork for the social uses of the law that persisted under protectorate rule and that are the subject of this article.For more on such practices in the precolonial era, see Clancy-Smith, "Marginality and Migration," and "Women, Gender, and Migration." 11Though this process took centuries, scholars generally agree that the European territorial state was "consolidated" by the end of the nineteenth century.See, e.g., Charles Tilly, "Reflections on the History of European State-Making," in The Formation of National States in Western Europe, ed.Charles Tilly (Princeton, NJ, 1975), and "States and Their Citizens," in Coercion, Capital, and European States, AD 990 -1992 (Malden, MA, 1992); James Sheehan, "The Problem of Sovereignty in European History," American Historical Review 111, no. 1 (February 2006): 1-15.For an exploration of the related concept of "territoriality" and its rise in the same era, see Charles S. Maier, "Consigning the Twentieth Century to History: Alternative Narratives for the Modern Era," American Historical Review 105, no. 3 (June 2000): 807-31.On the uneven diffusion of the centralized state model, see C. A. Bayly, "Myths and Technologies of the Modern State," in The Birth of the Modern World, 1780 -1914 (Malden, MA, 2004).For a critique of the exclusivity thesis, see Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ, 1999). 12The term "Maghribians" refers to the people of the Maghrib (Arab lands of the "West"-in common usage, the western portion of North Africa, including Morocco, Geographies of Power 795 quences of such practices changed as a newly competitive state system emerged.
Thus, while Cambon's reforms succeeded in closing the consular courts, France nonetheless remained constrained throughout the tenure of its protectorate by the interpenetration of international interests and domestic civic life in Tunisia.Efforts to control these dynamics eventually brought France to reverse course with respect to Tunisia in the 1920s, by which time it claimed no longer merely to protect but also to share in the Tunisian bey's sovereignty.
Two junctures in jurisdictional politics illumine the nature of France's changing relationship with its imperial rivals and Tunisia's diverse populations.Defined by Lauren Benton as "conflicts over the preservation, creation, nature and extent of different legal forums and authorities," jurisdictional politics were what Cambon thought he had done away with when he closed the consular courts. 13Instead, they persisted in another form.First, the suppression of European consular courts in the 1880s engendered novel legal maneuvers by individuals living in Tunisia that had the effect, if not always the intent, of exposing the limits of French authority in the protectorate.Second, Tunisian "natives" adopted jurisdictional strategies in the 1910s that built on-and sometimes intensified-new tensions in Mediterranean politics that followed Italy's invasion of Libya and France's establishment of a protectorate over Morocco.Both of these moments show the French administration struggling to strike a balance between demonstrating its power and accommodating conflicting interests.On the one hand, French authorities used what John Comaroff has described as "lawfare" to consolidate their position in the protectorate. 14On the other hand, the protectorate, as a "wonderfully flexible legal instrument," 15 proved sometimes too flexible for French liking because it created the conditions for instrumentalizing allegiance, opening up spaces for foreign nationals and native subjects to exploit the limitations of French power. 16Over time, the confrontations and negotiations engendered by Algeria, and Tunisia).It is used in contrast to "Mashriq," which refers to the Arab lands of the "East." 13 Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400 -1900 (Cambridge, 2002), 10.
14 John L. Comaroff's characterization of the "effort to conquer and control indigenous peoples by the coercive use of legal means," in Comaroff, "Colonialism, Culture, and the Law: A Foreword," Law and Social Inquiry, 2001, 306.
15 Antony Anghie's characterization of the protectorate form of rule in Anghie, "Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law," Harvard International Law Journal 40 (Winter 1999): 57. 16This was not only true of Tunisia.As Sara Berry has shown in her work on sub-Saharan Africa, indirect rule-however flexible in theory-institutionalized struggle in practice.See Berry, "Hegemony on a Shoestring: Indirect Rule and Access to this disjuncture between lawfare and the social uses of the law brought French authorities to intervene more directly in Tunisian life.
From the 1880s, the desire to prove themselves masters not only to the bey's subjects but also to European rivals led French authorities to subject Europeans living in the protectorate to a common rule of French law.They aimed to do this by substituting French courts for the various consular courts which had operated under the Capitulations.In order to secure this reform, however, France had to grant concessions to the same foreign governments whose influence it sought to diminish.French courts thus found themselves enforcing European laws that conflicted with French civil and penal codes.Particularly exasperating to French authorities was the fact that their own courts applied various European laws not only to individuals whom they agreed were European but also to persons whom they regarded as Tunisian subjects.At the turn of the twentieth century, the tendency of native Muslims and Jews to try to escape beylical jurisdiction led French authorities, in concert with the bey, to discontinue the system whereby foreign countries could offer "patents of protection" to the bey's subjects.By the 1910s, however, native subjects found new ways to play jurisdictional politics: claiming to possess the "nationality" of one or another European power by virtue of birth in a territory (Libya, Algeria, Malta, etc.) controlled by Europeans.As such legal maneuvers in Tunisia aggravated conflicts between France and other European states, French officials tried to regain control by, first, endeavoring to ascribe French nationality to all "Europeans" and, second, imposing a single "Tunisian nationality" on all Muslims and Jews, hitherto mere "subjects" of the bey.So recast, the Franco-Tunisian relationship presented new challenges to French rule in the protectorate and at the same time altered the geography of power throughout North Africa. 17ricultural Land," Africa: Journal of the International African Institute 62, no. 3 (1992): 327-55. 17This process resembles the tendency of colonial states to be "drawn in" as arbiters of legal pluralism, as described by Benton, Law and Colonial Cultures, 29, with an important exception: while Benton describes European colonial states that, frustrated by the indeterminacy of "truly plural legal orders" (28), increasingly tried to impose order by extending a single jurisdiction to all persons living in a particular territory, France never purported to treat Tunisia as a single jurisdiction.Instead, French authorities intervened increasingly in an effort first to impose a single (French) jurisdiction on all "Europeans" and then to impose a single nationality (Tunisian) on all Muslims and Jews, without ever claiming to include "Tunisians" within the French jurisdiction.This particular brand of creating "order out of trouble," as Benton calls it (chap.3), contributed to the growth of Tunisian nationalism by helping to establish the legal category "Tunisian nationals"-where once there had been subjects of the bey.

I. REMAPPING THE HISTORY OF EMPIRE
In suggesting that the international order in the Mediterranean basin and the Tunisian civic order mutually constituted one another, I am calling for a new way of thinking about what Frederick Cooper and Ann Stoler have termed the "tensions of empire."Cooper and Stoler, along with other "new imperial historians," fruitfully pushed past the nationalist paradigms that had dominated histories of empire and suggested instead that scholars place metropole and colony in a single analytic field. 18Very few scholars, however, have broadened this scope of inquiry beyond the presumed closed circuit of metropole and colony. 19In connecting local social strategies to imperial rivalries, I integrate approaches to the history of empire that, because of their isolation from one another, have missed the specific ways in which imperial power has been exercised, contested, and transformed.Attention to such specificity has sometimes been lacking in the otherwise rich analyses of imperialism and colonialism that have proliferated over the past few decades. 20Much has been made, for instance, of the imperialists' need to erect and enforce boundaries, whether physical or ideological, sexual or affective.Such boundaries were crucial to producing colonial knowledge and claiming the "prestige" of a "civilizing" power. 21Although few analyses of imperialism would deny its 18  tangible effects on human societies, the emphasis has often been on the more intangible realm of "ideas."Edward Said, whose Orientalism helped spark the field of colonial and postcolonial studies, remained convinced, even in his later work, that the material aspects of imperialism had been overemphasized."Territories are at stake, geography and power," he wrote in the introduction to Culture and Imperialism, but the contest over geography "is complex and interesting because it is not only about soldiers and cannons but also about ideas, about forms, about images and imaginings." 22To be sure, such images and imaginings may have betrayed an ambivalence that opened spaces for subversion, as Homi Bhabha suggests. 23Yet for all these cultural analyses tell us about the general dynamic of imperialism, we have often been left wanting when it comes to details. 24 If imperialism was about form, how did change come about?If subversion was a constant feature of colonial societies, then how can we explain the long persistence of imperial power?
Surely there is no universal answer to these questions.We need a methodological framework that transcends neat oppositions between colonizer and colonized without denying uneven distributions in power. 25If relations between metropole and colony did not operate in a vacuum, then historians too must expand their vision to include neighboring colonial territories, the range of imperial powers active in the area, and individuals who traversed these boundaries themselves or called them into question through their behavior.Colonial boundaries, however ideational, depended on and contributed to geopolitics.By this I do not mean simply the defense of borders-by soldiers or cannons-but rather the many other ways in which defending interests and exercising influence in the context of imperial rivalry affected what one might call, following Elizabeth Thompson, the "colonial civic order."Drawing on Urbanism (Chicago, 1991); Alice Bullard, Exile to Paradise: Savagery and Civilization in Paris and the South Pacific, 1790 -1900 (Stanford, CA, 2000).Patricia Lorcin's work shows how colonial power was buttressed by boundary drawing between sectors of the colonized population, in this case by playing up differences between "Berbers" and "Arabs.

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Isser Woloch's definition of civic order, Thompson has in mind the matrix of institutions, expectations, and practices that governed collective life-that managed relations among individuals or groups, as well as between them and the colonial state. 26o colonial civic order can or should be divorced from the international order, but the connection between the two was felt particularly strongly in Tunisia for two reasons.First, European powers-especially Italy and Great Britain-retained an interest in the territory after France assumed protector status, principally because their nationals outnumbered the French in the settler population.In the domain of law, this engendered divisions not only between colonizer and colonized but also within the settler population.Second was Tunisia's location, which gave it strategic importance far beyond its size.Encompassing approximately 162,000 square kilometers wedged between Libya (more than 1.7 million square kilometers) and Algeria (almost 2.4 million square kilometers), less than 350 kilometers from the British crown colony of Malta and a mere 150 kilometers from Sicily, Tunisia was also uniquely situated in relation to its colonial neighbors.The border it shared with Algeria was, in a sense, also one with France, since the northern third of Algeria had been annexed as three departments in 1848 and was considered an integral part of French territory.After Italy annexed Tripolitania and Cyrenaica in 1912, Tunisia also could be said to share a border with Italy.Whatever advantages French authorities, like so many other imperialists in this era, saw in ruling Tunisia indirectly, 27 they could not administer much of 26 Elizabeth Thompson, Colonial Citizens: Republican Rights, Paternal Privilege and Gender in French Syria and Lebanon (New York, 2000), esp.1-3; Isser Woloch, The New Regime: Transformations of the French Civic Order, 1789 -1820s (New York, 1994), esp.14 -15.In borrowing this term, I am by no means suggesting that Tunisia's civic order resembled that of Syria, Lebanon, or France.Rather, I find the term analytically useful in a more general sense. 27The turn to "indirect rule" is a late nineteenth-century development common to all major imperial powers.It can be linked to the expansion of democratic politics in metropolitan centers, whose constituencies-while happy to benefit from empire-did not want to pay for it, literally or figuratively.A related argument for indirect rule claimed that, by maintaining a territory's "natural" rulers, the metropole would encounter fewer security problems.This "respect" for native custom was, in turn, surely related to the concomitant rise of the study of human difference, which, at its most extreme, took the form of so-called scientific racism.Finally, there was also the pragmatic consideration of the "flexibility" offered by the very ambiguity of the protectorate form.See Anghie, "Finding the Peripheries"; Peter Burroughs, "Imperial Institutions and the Government of Empire," in The Oxford History of the British Empire, vol.3, The Nineteenth Century, ed.Andrew Porter (Oxford, 1999), chap.9; Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870 -1960 (Cambridge, 2001), esp.chap.2. Within the realm of symbolic politics, moreover, terms like "protectorates" and "leases" sounded less "imperial" in the age of mass democracy.This is what made the latter particularly attractive to what anything in the protectorate without reference to the very different regime of their colony in neighboring Algeria or those of their imperial rivals in the region.Recognizing the significance-not to mention permeability-of borders does not entail reviving the narrowly defined political histories to which Said rightfully objected.Instead, I offer a new approach to imperial and colonial history by placing social life-or culture, in the anthropological sense-and diplomacy within a single analytic frame. 28Integrating the political, social, and cultural histories of empire in this way offers a fuller understanding of colonial power as well as its limits. 29hat said, broadening the scope of analysis does not explain how all colonial systems operated at all times.This is not a quest for a universal explanation of colonial power.Rather, I propose a method that, while applicable to other colonized territories, is only useful inasmuch as it yields insight about the specific relationships set into play in particular places.In all colonial legal pluralisms, "native" law is distinguished from that of the colonizing power. 30What made the situation in Tunisia distinctive after 1881 was the way that its legal pluralism implicated foreign states, setting in motion conflicts at we might call anti-imperialist imperial states, such as the United States.See Amy Kaplan, "Where Is Guanta ´namo?"American Quarterly 57, no. 3 (September 2005): 831-58.For Anthony Pagden, the turn away from direct rule carried the seeds of self-determination, even if these were not apparent at the time ("Fellow Citizens and Imperial Subjects: Conquest and Sovereignty in Europe's Overseas Empires," History and Theory 44 [December 2005]: 28 -46). 28As Ghosh and Kennedy argue, histories of "imperialism" and "colonialism" can and should be bridged.Ghosh and Kennedy, "Introduction," 5. 29 30 The literature on legal pluralism in colonial contexts is too vast to cite in its entirety here; for an excellent overview through 1988, see Sally Engle Merry, "Legal Pluralism," Law and Society Review 22, no. 5 (1988): 869 -96.Subsequent scholarship includes Law and Colonialism in Africa, ed.Kristin Mann and Richard Roberts (Portsmouth, NH, 1991); Roberts, Litigants; Benton, Law and Colonial Cultures; Emmanuella Saada, "Citoyens et sujets de l'empire franc ¸ais: Les usages du droit en situation coloniale," Gene `ses 53 (2003): 4 -24.Because Tunisia had a long history of both beylical and Islamic justice, its legal traditions were not "invented" out of whole cloth by colonial administrators, as has sometimes been suggested with regard to other colonial contexts.
once local and international that led, over time, to changes in protectorate governance.Imperial rivalry did not merely consist of intermittent crises resolved by gunboat politics; rather, it provided a constant undercurrent to life in the empire, intermingling with the logic of social and legal behavior across and within colonies.Moreover, as everyday behavior was affected by international relations, so too did it transform them.Together, international disputes and local-level conflicts challenged French authority in the protectorate and, in turn, reshaped the imperial game across the Mediterranean and North Africa.

II. ENDING EXTRATERRITORIALITY?
France launched its invasion of Tunisia on April 24, 1881, on the pretext that members of the Khmir tribe threatened France's colony in neighboring Algeria by pursuing their feuds across the border.In fact, however, plans for France to take Tunisia had been brewing for years.Tunisia's finances had been controlled since 1869 by an International Finance Commission made up of Great Britain, Italy, and France.Since that time, each of these three European governments had jockeyed for position as the "preponderant."At the Berlin Congress of 1878, convened to settle disputes arising from the Russo-Turkish war, exchanges between the French and British delegationsencouraged by the German Chancellor Otto von Bismarck-opened the way to France extending its influence in Tunisia. 31France had long been concerned to protect its position in Algeria, where a state of rebellion continued on and off for two decades following the 1830 invasion.At midcentury, the increasing reliance of Algerian rebels on Tunisian support had brought the French to intervene more directly on the Tunisian-Algerian border.Indeed, according to Julia Clancy-Smith, "Tunisia's open-door policy toward Algerian e ´migre ´s was one element, among several, that eventually brought its forced incorporation into France's expanding empire."Thus, defending Algeria became an impetus for French imperial expansion throughout North Africa, and the process that set this in motion considerably predated the 1880s. 32Even after the Berlin Congress, however, wariness of upsetting Italy stalled the project of taking all Tunisia.In the three years between the Congress and the French 31 Political historians generally agree that discussions occurred at the congress that helped pave the way to France claiming Tunisia, though they disagree on the extent to which Britain overtly endorsed the idea.For an account downplaying Britain's endorsement, see the argumentatively imbalanced but well-researched Arthur Marsden, British Diplomacy and Tunis, 1875-1902: A Case Study in Mediterranean Policy (New York, 1971); for an equally well-researched account that is imbalanced toward the French, see Jean Ganiage, Les origines du protectorat franc ¸ais en Tunisie (1861-1881), 2nd ed.(Tunis, 1968).
invasion, France and Italy competed for influence in the Regency, mostly by sparring over banking, railroad, port, and other monopolies.What the French government viewed as Italian "provocations" in these domains led to its quest for a casus belli.To maintain European comity, better to blame the Tunisians themselves.
The French forces arrived at Ksar Sa id, the beylical palace at Bardo, on May 12, 1881, and gave Muhammed al-Sadiq Bey three hours to respond to an ultimatum.The resulting treaty was formally an agreement between France and the bey.But it really engaged many other interests, for France had to ensure the approbation of its foreign rivals.This was one reason the French did not seek to annex Tunisia outright.Another was that annexation had proved costly-in both real and moral terms-in Tunisia's neighbor Algeria.Moreover, a France still smarting from Germany's annexation of Alsace and Lorraine following France's 1871 defeat in the Franco-Prussian War could hardly condone occupation as a strategy of rule.Jules Ferry, the president of the Council of Ministers, who faced extraordinary opposition in parliament regarding the invasion in part for this reason, ultimately resigned under pressure. 33Tunisia, his opponents contended, was a distraction from France's true interests-and one aided and abetted by Bismarck, to boot.The fact that France would alone become the guarantor of Tunisia's debt also infuriated members of parliament. 34For all these reasons, the protectorate was a carefully crafted compromise.Not only did France pledge to protect the bey's dynasty, it also promised to guarantee all preexisting international agreements between the bey's government and other states.In this way, the Bardo Treaty recognized, tacitly, both the bey's sovereignty and the interests of other powers in Tunisia-most notably but not exclusively those of Italy and Britain. 35wo years later, the June 8, 1883, Convention of La Marsa provided the outlines for French intervention in Tunisia's domestic affairs without abandoning the basic precept of nominally recognizing the bey's sovereignty.What constrained France more than the domestic sovereignty retained by the bey, however, were his treaty agreements with other European powers.These treaties granted commercial privileges, diplomatic immunities, and, most crucially, capitulatory rights.The maintenance of the Capitulations meant that each consular court of every European power exercised a form of sovereignty in the protectorate.Moreover, because this sovereignty was jurisdictional 33 Ferry became premier again in 1883, until another colonial adventure, this time in Indochina, ended his second government. 34 To address this problem, French authorities first needed to establish a new justice system.They accomplished this by passing a law in parliament on March 27, 1883, made applicable in Tunisia through a beylical decree of April 18.A few weeks later, another beylical decree extended the jurisdiction of French courts to the nationals of foreign countries having renounced their capitulatory rights.Thus, a system of dual jurisprudence was established.For all civil matters and everything but felonious crimes against European persons or property, 37 Tunisian subjects would continue to fall under the jurisdiction of native courts, which consisted of secular administrative courts as well as shar ia and rabbinical courts. 38In practice, the native justice system relied on qaids (Muslim local officials) to render justice swiftly; cases were to be referred to the court system only if they "exceed[ed]" the qaid's "expertise." 39uropeans, once the consular courts were closed, would fall under the juris-diction of French courts.Reforms later made Tunisians subject to French jurisdiction in cases where they were accused of committing misdemeanors against the person or property of a European.And once land law reforms were instituted in 1885, disputes relating to "registered" property also would be settled by the French court. 40ith the framework for French legal institutions in place, the Ministry of Foreign Affairs set about convincing European governments to close their consular courts.The process took over a year.Many governments wanted their nationals indemnified for damages to their property occurring during the French invasion and subsequent resistance movement before they would close their courts. 41Although almost no government went quietly, Italy's protests were the loudest.Writing to the Italian ambassador in Paris, the Italian Minister of Foreign Affairs Pasquale Mancini stressed that France had not yet "adequately taken into account the political and parliamentary constraints" that his government was under. 42As Mancini explained, "It isn't . . .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 40 The 1885 property law was designed to circumvent the fact that property previously fell entirely under the jurisdiction of Islamic courts.By creating the possibility of property "registration" (immatriculation), the 1885 law gave a legal "personality" to registered property.The law was based primarily on the French Civil Code but apparently drew inspiration from Australian land law as well.Newly established "mixed" Franco-Tunisian courts would be responsible for registering property; once property was registered, it would be adjudicated by French courts.For the development of French justice in Tunisia, see Dabbab and Abid, La justice en Tunisie; Ali Noureddine, La justice pe ´nal franc ¸aise sous le protectorat: L'exemple du Tribunal de premie `re instance de Sousse (1888 -1939)  presented to me, to reply to all questions that I am asked." 43The French had reason to be wary-Mancini 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.With the state of European affairs as such, France's hands were tied.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 any jury in a trial concerning an Italian defendant should be composed of 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 prote ´ge ´s should be treated as Italian nationals; and, finally, Italians found guilty of capital crimes should be spared the death penalty.
Among the Italian demands, the ones regarding jurors, 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 which offers the same guarantees to all foreigners."44Only 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 Italians and British subjects the opportunity to request a jury pool half composed 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.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." 45Here 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." 46In January 1884, France and Italy signed a protocol suspending the Capitulations; its secret clauses caused a public scandal a decade later when three members of the Sicilian mafia committed a brutal double murder in Bir-Loubit, only to be spared execution by the French president-forced to honor his country's promises to the Italian government. 47hile 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 the Tunisian civic order.Residents of Tunisia exploited the ambiguity of the settlement, invoking whatever jurisdiction served their immediate interests.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.
Case law from the late nineteenth century demonstrates how the jurisdic-tional complexity of the Tunisian civic order penetrated family relationships.
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.Seemingly clear-cut, these provisions did not prevent individuals from trying to manipulate the new juridical situation to their personal advantage. 48In 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.But Widow Nappa turned their jurisdictional game against them by suing her in-laws in French court.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 then applied the Maltese Code of Rohan, granting the widow one-quarter of her husband's estate, as was allowed for estates where there were no descendants, provided the surviving spouse had not disgraced the family and had no personal fortune of her own. 49he Nappas were hardly alone in attempting to use jurisdictional politics to settle intimate family disputes.In 1893, for instance, a man named Andre ´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 automatically become French upon marrying Andre ´, and French law did allow for divorce.Moreover, her grounds for divorce were justified, as Andre ´maintained a concubine in the conjugal home and had fathered a child by his mistress. 50Other chastised husbands found French courts equally unaccommodating.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. 51lthough 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 to maintain patriarchal power in the family-or perhaps a common reliance of women on courts to escape that patriarchy.Both tactics placed French judges in the position of adjudicating disputes between husbands and wives, as well as applying laws not of France's own making.
Consequently, instead of overseeing the application of a uniform rule of law to all Europeans, French judges in Tunisia found themselves adjudicating conflicts between diverse European civil and penal codes.France allowed for divorce; Italy did not.Spain recognized religious marriage; France recognized only civil marriage.Inheritance laws differed across European states and thus among European nationals in the protectorate.Faced with this legal pluralism, French courts applied foreign civil codes-first cautiously, by drawing on foreign legal advisors, then increasingly confidently, drawing on their own expertise.

III. THE POLITICS OF PROTECTION
It was difficult enough to confront conflicts in international private law regarding individuals claiming European origins, but the legal conundra caused by persons whose status straddled the rigid division between "European" and "native" jurisdictions presented even more confounding problems.The beylical decree of May 5, 1883, had declared that "nationals of friendly states suppressing their consular courts will be subject to the jurisdiction of French courts in the same circumstances and conditions as the French themselves." 52But the treaties and protocols that France subsequently signed in order to close the consular courts granted prote ´ge ´s these same rights.This state of affairs presented the protectorate administration with two problems.First, it allowed other European governments to maintain an influence by selling patents of protection.Second, and equally galling, it created circumstances in which foreign prote ´ge ´s obtained rights from which beylical subjects were excluded.Tunisians could reasonably wonder what benefit France's protection of the bey conferred when affiliation with another European state seemed sometimes to offer greater advantages.This was precisely the problem Jugement, in JTT (1890), 306 -7.A peculiarity of the Tunisian legal system was that, despite the protectorate having been fashioned as an alternative to the mode of rule adopted in Algeria, it shared the same appeals court until the 1940s. 52De ´cret du 27 Djoumadi-et-Tani 1300 (May 5, 1883), e ´tendant aux e ´trangers la compe ´tence des Tribunaux franc ¸ais, reprinted in Maurice Bompard, Le ´gislation de la Tunisie: Recueil des lois, de ´crets et re `glements en vigueur dans la Re ´gence de Tunis au 1er janvier 1888 (Paris, 1888), 269.that had compromised the Ottoman sultan's sovereignty, as his Muslim subjects clamored for the same rights as the dhimmis. 53ative Tunisians' strategies to benefit from the protectorate's legal pluralism aggravated French worries regarding the influence their rivals exercised through patents of protection.As a result, France required European powers to review their rosters of prote ´ge ´s in 1898; the bey then issued decrees definitively listing the names of persons protected by foreign governments. 54enceforth, only the persons listed would be entitled to the benefits of foreign protection. 55With this new principle in place, the resident general could boast, twenty years after the establishment of the protectorate, of France's progress reining in jurisdictional politics: "European prote ´ge ´s have been registered, and the list of them has been officially issued." 56Since protected status could not be passed from one generation to the next, the French administration in Tunisia finally stood poised, at the dawn of the twentieth century, to put an end to the politics of protection played by its imperial rivals.Yet France's solution to the problem of protection accorded to Tunisian subjects by other European powers generated a third problem.If France cracked down on protections offered by other states to native Tunisians, it might also have to limit its own.After forcing other European powers to cease issuing new patents of protection, the residency general began "preparing, with regard to Algerians and French prote ´ge ´s, a review of the registry which will allow us to adjust the status of this significant subgroup." 57As Algerians were legally French nationals, this would prove more difficult. 53Dhimmi refers to non-Muslim "peoples of the book" living in Muslim lands.In the eighteenth-and nineteenth-century Ottoman Empire, dhimmis increasingly benefited from foreign patents of protection.On the problems Ottoman rulers faced from Muslims' desire for the same privileges as the dhimmis, see Salahi R. Sonyel, "The Prote ´ge ´System in the Ottoman Empire," Journal of Islamic Studies 2, no. 1 (1991): 56 -66; Inalcik et al., "imtiya ¯za ¯t; and June Starr, "When Empires Meet: European Trade and Ottoman Law," in Contested States: Law, Hegemony, and Resistance, ed.Mindie Lazarus-Black and Susan F. Hirsch (London, 1994), 231-51. 54De ´cret du 15 rabia-ettani 1316 (September 1, 1898), portant publication de la liste individuelle des prote ´ge ´s britanniques, italiens et ne ´erlandais, in JTT (1899), 297ff.;De ´cret du 19 hidje ´1316 (April 29, 1899), portant publication de la liste individuelle des prote ´ge ´s allemands, danois, belges, hellenes, et russes, in JTT (1899), 330ff.
55 Indeed, on instruction from the resident general, courts soon began using the lists as a basis for their judgments.See, e.g., the case brought by a Monsieur Boublil, who claimed to be a Dutch prote ´ge ´.Tribunal de Tunis (1e `re ch.), November 2, 1898, in RAT (1899); reference made in court findings to September 1, 1898, decree and September 17, 1898, telegram in which the "resident general informed the court that only natives who were registered on this list could claim to status of prote ´ge ´." 56 ANT C-18, dr. 2, fol.85: Re ´sidence Ge ´ne ´rale, a `son excellence M. Delcasse ´, ministre des Affaires E ´trange `res.Direction des Affaires politiques, service de la Tunisie, no.151, a/s musulmans e ´trangers en Tunisie, March 25, 1901. 57Ibid.
If European prote ´ge ´s' crossing of jurisdictional boundaries raised the question of French rivals' ongoing influence on everyday affairs in the protectorate, the jurisdictional jockeying of Algerian French nationals in Tunisia drew attention to other cracks in France's imperial edifice. 58Asked in 1883 whether it was possible in North Africa to have "two contiguous provinces [that are] governed so differently," Paul Cambon had replied "why not?" 59 Yet subsequent events showed this confident defense of protectorate rule to be shortsighted, for Cambon had not taken into account the frequent circulation between Tunisia and Algeria of native Jews and Muslims.This had already presented problems for France prior to the establishment of the protectorate.From the mid-1850s, Algerian rebels facing blockades in their own country moved their operations over the border, increasingly bringing Tunisia into the field of Algerian insurrectional politics. 60Under these circumstances, it can hardly be coincidental that France sought to control Algerians' access to rights as French nationals in Tunisia beginning in 1855. 61After the 1865 Senatus Consulte conferred French nationality-albeit not citizenship-on Muslim Algerians, they were allowed protection in Tunisia as Frenchmen as long as they proved their Algerian origins and had not lost their "esprit de retour."When nationality became inalienable in 1889, however, the French administration faced a new problem.The 1889 law made it increasingly difficult for the administration to argue that Algerians had "lost" their French nationality by moving to Tunisia.At the very moment French officials endeavored to limit the number of European prote ´ge ´s, the 1889 law threatened to give Algerians unprecedented rights as protected persons in Tunisia.

Formulaire des chancelleries diplomatiques et consulaires, suivi du tarif des chancelleries et du texte des principales lois ordonnances, circulaires et instructions ministe ´rielles relatives aux consulats; publie ´sous les auspices du Ministe `re des affaires e ´trange `res, vol. 2 (Paris, 1909
). See also Maurice Chenel, La Medjba: Impo ˆt de Capitation Tunisien (Tunis, 1912), 38.This turning point in policy toward Algerians in Tunisia is also highlighted in Clancy-Smith, "Migrations, Legal Pluralism, and Identities," 7. 62 The advent of the 1889 law also created new problems for Algerian administrators confronted with Tunisians and Moroccans living in Algeria.See Laure Ble ´vis, "La citoyennete ´franc ¸aise au miroir de la colonisation: E ´tude des demandes de naturalisa-Chief among the rights Algerians tried to claim was exemption from Tunisian taxes.Among the many taxes levied by the bey, the most vilified was the majba, a head tax requiring all men who had reached puberty to pay at the same rate, regardless of income or wealth.Europeans, residents of Tunisia's major cities, military personnel, and some religious officials were exempt.Algerians, as French nationals, tried to claim the European exemption, a strategy that worked frequently enough to be deemed a major fiscal problem after the establishment of the protectorate.As early as January 1886, France's resident general in Tunisia instructed qaids to require Algerians to pay the majba unless they had valid certificates of French nationality.Passports and travel papers were considered insufficient, while nationality papers held by persons who had owned property in Tunisia since before the French conquest were particularly suspect, very likely belonging to persons who "passed themselves off as Algerian, when in fact they originate from Tunisia." 63 Most tellingly, no person who had paid the majba once would be allowed to obtain a French nationality certificate.This policy assumed that anyone having once paid the majba regarded himself as a subject of the bey, but this was hardly a given.Qaids earned their income by adding a 10 percent fee (majoration) to all collections; it was therefore in their interest to force as many individuals as possible to pay, whether or not they were legally obligated. 64Those who did not pay the tax were often threatened with detention or forced to pay a bribe. 65on des 'sujets franc ¸ais' en Alge ´rie coloniale," Gene ´ses 53 (December 2003): 32-35; and Kamel Kateb, Europe ´ens, "Indige `nes" et Juifs en Alge ´rie (1830 -1962), Repre ´sentations et re ´alite ´s des populations (Paris, 2001), 162ff.On the 1889 law more generally, see Patrick Weil, Qu'est-ce qu'un Franc ¸ais?Histoire de la nationalite franc ¸aise depuis la Re ´volution (Paris, 2002). 63ANT C-18, dr. 3, fol.9: "Circulaire aux Caids," January 20, 1886.Passports were considered insufficient testaments to nationality in other parts of North Africa as well.See Will Hanley, "Foreignness and Localness in Alexandria, 1880 -1914" (PhD diss., Princeton University, 2007), esp.234 -65.Hanley points out that nineteenth-century passports were often less permanent documents than today's passports-they were frequently issued for each leg of a trip, and a single person could have several.Thus, authorities in Egypt often considered them the "weakest evidence of nationality, and this was true throughout the Mediterranean" (248). 64Richard Alan Macken, "The Indigenous Reaction to the French Protectorate in Tunisia, 1881-1900" (PhD diss., Princeton University, 1973), 153-61; Chenel, La Medjba; Noureddine Dougui, "La politique fiscale du protectorat franc ¸ais en Tunisie (1884 -1939)," Revue d'Histoire Maghre ´bine 81-82 (June 1996): 183-200.
65 ANT C-18, dr.3: Vice consulat de France et arrondissement de controle de Gafsa, no.718, June 1, 1886, reporting on legitimate Algerians paying up to 20 piastres to qaids in order to avoid the majba of 45 piastres.See also Macken, "Indigenous Reaction," 153, where he notes that it was "not uncommon for a Tunisian to have to pay his majba two or three times before finally obtaining his receipt."Whatever efforts were made to force real or alleged Algerians to pay the majba, the finance administration was still dissatisfied a decade later: "This tolerance is bad because there is no real reason that our Algerian subjects should have more advantages . . .than our Tunisian prote ´ge ´s, who are no less worthy." 66Of course, the finance minister was also worried about the bottom line-in 1896 the majba represented about 18 percent of the Regency's revenues. 67Since he endeavored to meet the budget without instituting new taxes, the only means of increasing receipts was to adopt a "draconian discipline" in collection practices. 68ourt cases brought by defendants claiming Algerian legal status highlighted the importance of tax collection, as well as the problem that Algerians' French nationality posed to the protectorate administration.In one case of this kind from 1899, the plaintiffs, Mohamed ben Amor ben Hamda and his sons, sued the Tunisian government for 50,000 francs in damages after they were coercively detained for failing to pay the majba.The court reasoned that the detention was legal because the plaintiffs had not sufficiently established their Algerian origins.Signaling its desire to establish legal precedent, the court wrote that a "large number of Algerian Muslims" live in the Regency and "do not differ from Tunisian Muslims by their social status or mores."These Algerians "invoke their nationality in order to evade actions taken by Tunisian authorities to enforce the payment of taxes on natives," and this situation "presents drawbacks" of a very serious kind "because the disciplinary legislation to which Algerians are subjected in their own country does not apply to them in Tunisia."The protectorate had tried to end these "abuses" by requiring definitive proof of nationality. 69In fact, a circular from the previous year had instructed civil controllers to verify the status of alleged Algerians, and it was this policy that had triggered the present dispute. 70In using Ben Amor ben Hamda's case to establish jurisprudence with regard to alleged Algerians, the court violated the civil-law tradition in which the role of the judge was merely to enforce-not make-the law.At the same time, it sought to place bound-aries on the status of persons whose social and legal strategies had long defied such rigid categorizations.
Acknowledging that the plaintiffs did "appear to be of Kabyle [and thus Algerian] origin," the court nonetheless emphasized that the father had lived in Tunisia for many years. 71Since he had arrived in Tunisia before the French conquest, the court reasoned, the family must have "left Algeria to flee French domination and in so doing, had repudiated their country of origin." 72Having left Algeria with no apparent intention of returning, they had renounced their French status.The fact that the French nationality law of 1889 made renunciation impossible was of no consequence, since they had allegedly done so before the law had passed.Their presentation of a "deed of notoriety" in which witnesses from the commune mixte of Haut-Se ´baou attested to Ben Amor ben Hamda's Algerian origins was "all the more suspect since the witnesses whose declarations it contains testify to very old events and claim to know well persons who left the country thirty years ago." 73The court already had concluded in an earlier case evidently pertaining to the same family that "the absence of a desire to return should be presumed more readily with regard to a simple subject as opposed to a citizen, especially in the case of a Muslim establishing himself in a Muslim country."74Subsequent cases repeatedly reasoned that "Muslim natives domiciled in Tunisia must be considered Tunisian subjects, unless proved otherwise." 75With regard to Jews, who unlike Muslims became full-fledged citizens in Algeria by virtue of the 1870 Cre ´mieux decree, Tunisian courts generally made similar determinations, sometimes going so far as to suggest that the individual concernedeven when able to establish Algerian origins-could not benefit from the Cre ´mieux decree unless he or she had explicitly filed for recognition as a citizen.In one notorious case, a justice of the peace in Tunis ruled against a Jewish man's claim of French status, editorializing that "nothing is more shocking" than Jews who had lived in Tunisia "a quarter of a century or more," and who differed in no way from Tunisian Jews, making use of their Algerian origins only in order to "thwart the action of local authorities."This judgment, and later cases following the same line of reasoning, infuriated the editor of the law journal in which they were reprinted."Indigeneity is a fact," E ´mile Larcher wrote in the footnote to this case."If birth in Tunisia is a presumption of Tunisian nationality, why wouldn't birth in Algeria be proof of French nationality?" 76he court's argument in the Ben Amor ben Hamda case was legal camouflage.The issue was neither why one individual, Mohamed ben Amor ben Hamda, had left Algeria nor what impact this had on his nationality and that of his family.The question was a far more general one arising from the clash of the different forms of colonial rule France had adopted in Tunisia and Algeria.As long as France maintained that Tunisia was a foreign territory, then it was obliged-at least in theory-to provide consular protection to all French nationals, including Algerians, living in Tunisia.Yet this very pretense threatened to undermine the subjected status of Algerians.Equally important, it called into question the strict jurisdictional separation that French resident generals, in the name of honoring the bey's sovereignty over his subjects, had established between "natives" and "Europeans."After all, as the court had reasoned in an earlier case, "French jurisdiction was instituted in Tunisia in order to judge cases pertaining to Europeans." 77The court could not very well concede that the categories of "European" and "Tunisian" overlapped, because doing so would have undermined the entire premise of colonial domination, which posited a hierarchical and incommensurable relationship between European and native laws. 78Instead, French courts in Tunisia increasingly used religious affiliation as a proxy for nationality, even when doing so meant contradicting France's policies in neighboring Algeria. 79ecisions such as these had symbolic value, as well as real-world consequences-witness the incarceration of Ben Amor ben Hamda and his sons.French authorities had an ideological interest in portraying the native legal status as inferior to their own-as something Tunisians would want to escape.Nonetheless, in order to maintain the fiction of the bey's sovereignty and uphold the notion of European superiority, they also had to protect the line dividing "Europeans" from "natives."Over the next several years, courts became the principal defenders of this distinction, sometimes establishing "excessively difficult" conditions by blocking as "intruders those who wish to enter into their court." 80Despite this defense of jurisdictional boundaries, Tunisia's legal pluralism continued to present challenges to France's pursuit of dominance in the Mediterranean region in the twentieth century.

IV. BORDER CROSSINGS
Movement across borders within the French empire called into question the legal boundaries French authorities wished to draw between populations in Tunisia.The porous border with Algeria had always presented this sort of problem. 81But as France extended its imperial reach in Africa at the turn of the century, the consolidation of rule in one place contributed to new legal complications in another.In 1895, France established the Federation of French West Africa (Afrique Occidentale Franc ¸aise, or AOF), and in 1902, it completed its "pacification" of the Algerian Sahara, incorporating it as the "territories of the south." 82Although these territorial appropriations solidified France's position in North and West Africa, they were socially disruptive."Pacification"-a euphemism for consolidating conquest through forceinevitably displaced populations.Moreover, in the western Sudan, the establishment of French rule meant that slavery lost its legal standing; this in turn rent local social relations, as former slaves took leave of their masters and migrated in search of work as free laborers, trying to evade their former masters' efforts to find new legal means for forcing their return. 83Eager for low-cost labor, farms and mining concerns in Tunisia welcomed migrants displaced by the expansion of France's empire to its southwest.
Like Algerians before them, migrants from the western Sudan arriving in Tunisia made the most of France's territorial acquisitions by demanding protection as "French subjects." 84Faced with these new demands, administrators in Tunisia found themselves downplaying France's recent triumphs in the AOF, arguing instead that French authority was "much less effective" in its Sudanese colony than in the Tunisian protectorate. 85It would be perverse, they thought, to offer AOF migrants protection that they were unwilling to give Tunisians.Seeking a legal rationale for this argument, they maintained that there was no law pertaining to the Sudanese that was "analogous" to the Algerian Senatus Consulte.With no legal basis for claiming nationality, the procureur de la re ´publique (attorney general) argued, the Sudanese could not be considered French nationals in Tunisia. 86Nor, exactly, were they foreigners.Instead, jurists for the protectorate claimed that Muslim subjects, regardless of geographic origin, owed allegiance to the bey-a Muslim sovereign. 87rotectorate authorities' assertion that Muslims were not nationals anywhere-only subjects-claimed to be respectful of Islamic law.The argu-ment was also convenient.It demonstrated that recognizing the bey's sovereignty did not always constrain French power; sometimes, doing so helped maintain a colonial civic order that relegated Muslims and Jews to an unequal status.Where did this opportunistic understanding of Islamic law leave Algerians?As French nationals, they were an anomaly.But even in their regard, new efforts were made to curb alleged fraud and bring them under the umbrella of the bey's sovereignty.Writing to Algeria's governor general Charles Jonnart in 1903, Resident General Ste ´phen Pichon complained that he had already called to Jonnart's attention the "ease" with which Tunisian natives "conniv[ed]" to obtain Algerian papers.Now he was asking that Algerian local officials contact Tunisian civil controllers to verify the status of any resident of Tunisia who filed a request for a deed of notoriety establishing Algerian origins. 88For all Cambon had celebrated the fact that Algeria and Tunisia were "two contiguous provinces governed so differently" in 1883, 89 twenty years later the administration of one came to require the cooperation of the other.
Yet the real difficulties came with the shift of Mediterranean politics in the 1910s, in the wake of the Agadir Crisis in Morocco and Italy's invasion of Libya in 1911.Following the Italian invasion, many Libyans fled the Italo-Turkish war, crossing the border into Tunisia.In the fall of 1912, Italy amnestied the fugitives and promised them protection if they returned. 90After Italy annexed Libya as two colonies-Tripolitania and Cyrenaica-it demanded that its new subjects be treated as Italian prote ´ge ´s in Tunisia.This led Pichon, now the French minister of foreign affairs, to protest that France's "recognition of the annexation of Libya does not at all imply that all natives originally from this territory who are established in Tunisia have acquired, as far as the government of the Republic is concerned, the status of Italian subjects, nor that Italy's new colonial subjects (sudditi) have the right to demand in the Regency the same treatment as Italians (cittadini)." 91Although Italy had considerable trouble establishing effective rule in Libya, 92 it nonetheless managed to use its annexation of Tripolitania and Cyrenaica to leverage its bargaining power in Tunisia.Ingeniously, the Italian government drew a direct parallel between Libyans and Algerians.Just as the latter were nationals, but not full citizens, of France, so too had Libyans become Italian nationals.The fact that they did not have the same rights as Italian cittadini was, according to the Italian government, immaterial since Algerians were entitled to special protection as nationals while living in Tunisia although they too were not citizens. 93As the French and Italian foreign ministries sparred on this front, France finally established a protectorate over most of Morocco in 1912, save for the Spanish zone and the port city of Tangier, which retained a separate status.The coincidence of the Moroccan and Libyan crises led to at least two major changes in the Tunisian civic order: the discontinuation of the onerous majba and the institution of a new legal category-the "Tunisian nationality"-to which all native Muslims and Jews were to belong.
The bey's subjects had long maneuvered within the country's multiple jurisdictions as they sought to maximize their own interests.While a crackdown on this behavior at the end of the nineteenth century had foreclosed the possibility of claiming formal protection by foreign governments, and made invoking Algerian origins a risky gamble, the advent of the Italian annexation of Libya provided a new opportunity to evade local jurisdictions-particularly for Tunisians living in the east and southeast.This development threatened French authority in Tunisia much more than had foreign patents of protection.Patents, after all, had required annual purchase and were subject to renewal.Nationality, however, was ordinarily permanent.Crucial to the new threat was its social impact.Had Tunisian subjects seen no benefit in claiming to be Libyan, France would have had little reason to oppose the Italian measures.
The social impact of the Italian strategy was soon obvious.Report after report from the French civil controllers, the resident general's local representatives, recounted cases of persons who had long been considered Tunisian suddenly claiming to be Italian prote ´ge ´s.These new supposed sudditi claimed exemption from the majba, regained fishing rights along the Libyan coast (where Tunisians had fished for ages and now saw their livelihoods cut off by Italy's closure of the coastline to foreign boats), attempted to have their civil 92 Giambattista Biasutti, La politica indigena italiana in Libia: Dall'occupazione al termine del governatorato di Italo Balbo (1911-1940)  disputes heard in French courts, and, local officials feared, might also claim exemption from military service. 94As the qaid in Cap Bon urgently reminded the general secretary of the Tunisian government in the fall of 1913, some 50 percent of Cap Bon natives had paid to be replaced when called for military service during the conquest of Morocco: "If we open the door to Italian subjecthood to them, they will see in it a way out of the majba and military service."Already in his region, a prominent local notable had obtained Italian protection.Turning alarmist, he predicted that these new subjects could become the "avant-garde of an Italian occupation army." 95rench authorities in Tunis dismissed rumors of Italian invasion plots as just that-rumors.But they nonetheless were deeply concerned that Italy's demands would "compromise the very operation of the Protectorate." 96If Italy were to succeed in securing the right for Libyans to fall under European jurisdiction, a French memo opined, this would have "disastrous consequences for our prestige in Tunisia," for Tunisians would not accept "without bitterness a situation where they found themselves inferior to Italian subjects." 97In particular, French officials opposed Italy's proposal to backdate the Italian nationality of Libyan subjects to 1881.This would "render futile" all France's efforts to "achieve order out of chaos" in the Regency. 98Backdating nationality would bring the number of Libyans living in the Regency, estimated as ranging from 20,000 to 50,000 to some ten times that-far exceeding the present numbers of Italians (88,000 -113,000) and French (46,000) combined. 99Such demands for recognition of nationality would be the source of "constant troubles"; the number of cases to be tried before French penal courts would "more than double," as would the need for justices of the peace.This would, the French foreign minister claimed, pervert the objectives of the French justice system, which had been established to satisfy the "Europeans." 100 For this very reason, not to mention the costs it would have entailed, the protectorate administration already had rejected a push from French jurists and Tunisia's Jewish community, following the discontinuation of foreign protection, to extend the French justice system to native subjects. 101There were other costs to the Italian demands.Libyans' exemption from the majba would have the most "unfortunate impact on our native populations," for it would "make our power in Tunisia appear questionable," as Italy would have succeeded in exonerating its own subjects from taxes owed the bey while France would not have been able to do the same for its own charges. 102The Italian maneuvers were designed to engineer a power struggle that would quickly place the French government "in the position of either abdicating or reacting with a show of brute force like annexation."103For all these reasons, France had a "vital interest" in not succumbing to Italian demands. 104rench officials did succeed in negotiating an agreement with Italy setting October 28, 1912, the date of French recognition of Libya's annexation, as the base date for considering Libyans Italian subjects.105 But this small victory came at a price.Italy's constant complaints about its subjects being forced to pay the majba, and the growing numbers of persons hitherto considering themselves Tunisian who sought Italian status for their personal benefit, led the protectorate to institute taxation reforms.The inegalitarian majba was finally abolished and replaced with a new tax-the istitan-which required all adult males who had lived for three continuous months in Tunisia, regardless of nationality, to pay ten francs annually.106 The idea for this reform was not new; Tunisian members of the consultative council had pushed its institution for several years already.107 But, despite growing opposition from Tunisians to inequities such as the majba, the settler lobby had always succeeded in blocking the change and retaining Europeans' privileged tax situation. 108The tax burden was only equalized when, as the senior member of the consultative council's French section, the polemicist Victor de Carnie `res, admitted after-ward, "the suppression of the majba was voted by the French for reasons of foreign policy and not out of solicitude for the natives."109What de Carnie `res left out, of course, was that the two had become inseparable.It was because this decision implicated both foreign and domestic policy that the Residency applauded the council's French members for "patriotically renouncing their own privilege in order to remove a danger that seemed difficult to settle via diplomacy."110 The "reasons of foreign policy" invoked by de Carnie `res were primarily France's ongoing negotiations with Italy over the base date for the Italian subjecthood of Libyans.But there was another dispute also brewing-with Great Britain.The Affair of the False Maltese erupted in November 1913 when Tunis police discovered that a man purporting to be a rabbi, Nessim Haı ¨oune, had developed an ingenious scheme whereby native Tunisians could acquire Maltese birth certificates.In exchange for a significant fee, Haı ¨oune would help them secure the certificates, with which they could claim British nationality.Covered widely in the press, the affair quickly became a cause ce ´le `bre, as newspapers sympathetic to Haı ¨oune decried the dual justice system that the scandal called into question.111 As with the situation created by Italy's annexation of Libya, the Affair of the False Maltese was regarded as "detrimental to France's influence."112 At a minimum, it strained France's relations with Great Britain, which felt obliged to regard the "false Maltese" as its subjects pending completion of Malta's inquiry into the possible complicity of its public servants in producing what were-whether obtained on false pretenses or not-authentically issued documents.113 To the Libyan and Maltese affairs was added another complication: Morocco.France's establishment of a protectorate over Morocco with the Treaty of Fez (March 30, 1912) allowed it to control the entire Maghrib and also very nearly to link its North African and West African empires-a major feather in France's imperial cap.But even more than the conquest of Tunisia, France's position in Morocco depended on placating international interests.This situation-as much as the oft-mentioned "success" of Tunisia as a model-determined France's choice of governance in Morocco.114 Like his counterpart the bey in Tunisia, the Moroccan sultan was considered sovereign.But if Tunisia and Morocco were each sovereign, this meant they were foreign to one another.Potentially, a Moroccan in Tunisia could demand French protection abroad, and a Tunisian could claim the same in Morocco.France was committed to maintaining this fiction of sovereignty where it served French interests. Whe jurists and Tunisian Jews had called for the elimination of the Regency's dual judicial system at the end of the nineteenth century, for instance, French authorities had argued that such a proposition deprived the bey of his subjects and that as such it implied the "overturning, pure and simple . . . of the protectorate."115 With the advent of the Moroccan protectorate, however, this argument became strained: Muslims living in Tunisia would fall under beylical justice unless protected by a foreign power.Surely Moroccans were. If rance protected Morocco in the international arena, did it not protect its subjects, as well?An Egyptian court argued this to be precisely the case in 1913.116 But French officials concluded in 1914 that decisions like the Egyptian one were "deviations" and, as such, not likely to "modify our viewpoint."Instead, Moroccans were "neither French, nor prote ´ge ´s, in the sense that is given to that word in Tunisia."That status was reserved for holders of patents, a dwindling population since the reforms of 1898.Rather, according to French understanding of Islamic law, Moroccans, like all Muslims, owed allegiance to a Muslim sovereign in whatever country they resided, regardless of whether it was their country of origin.117 Moreover, they "had always been treated as natives in Tunisia," a state of affairs the French had no interest in modifying.Amid arguments in the name of Islamic law, rationality, justice, and equity, the careful reader could discern another reason: "This solution . . . is indispensable especially from a political point of view."118 After all, at the time that the memorandum advancing this interpretation was issued, discussions with Italy with regard to Libyans were still under way, and French negotiators surely wanted to avoid a situation where their treatment of Moroccans gave Italy leverage. 119Maintaining the legal privileges of Europeans was also important to the residency general's efforts to placate its own settlers, for the conflict with Italy elicited new calls from them to annex Tunisia and, in so doing, end this "bastard regime," as one newspaper editorial put it.120 As the consequences of Italy's conquest of Libya, the settlement of the Moroccan question, and the "false Maltese" scandal piled up on one another, French authorities sought new ways to manage Tunisia's jurisdictional complexity.Less than a month after the agreement with Italy, and within days of the Haı ¨oune case being heard by an investigating magistrate, the bey issued a new decree-Tunisia's first nationality law.Aiming to "cut short" the maneuverings of people like Haı ¨oune, the government "took advantage of the events in Tripolitania to issue a decree which was promulgated on June 19, 1914."121 The decree proclaimed that the following persons were Tunisian nationals: "(1) Any individual residing in Tunisia who does not benefit from the status of French or foreign citizen or that of French or foreign subject, by virtue of treaties to which the Tunisian government is party; (2) Any individual residing in Tunisia who was born in Tunisia before or after the promulgation of this decree or who was born abroad to a Tunisian father, or, if the father is unknown, to a Tunisian mother."122 In an ironic twist, the decree was apparently "inspired by the Italian decree on nationality in Libya."123 The Italian decree, meanwhile, seemed to take a page from the French rule book, when it declared that "all Muslims residing in Tripolitania and Cyrenaica are presumed Italian subjects until proved otherwise."124 Whatever its inspiration, the June 19 beylical decree broke new ground.First, it asserted that there was such a thing as Tunisian nationality, not just subjecthood to the bey.Second, it reaffirmed the territorial sovereignty of the bey by establishing that any person born in that territory, save for those exempted, would be Tunisian by virtue of the jus soli principle of nationality.In addition, it also asserted a jus sanguinis principle, whereby Tunisian nationality could be conferred by virtue of descent.This clause probably aimed to address the "false Maltese" affair directly: if Haı ¨oune's clients had Tunisian parents, then they too would be Tunisian by birth, regardless of whether they were in fact born in Malta.125 As the decree made an unprecedented assertion of Tunisian sovereignty, however, it also compromised that same sovereignty by asserting that some persons, even if born in Tunisia, would not be Tunisian nationals if they were citizens or subjects of France or another European power.This tautological clause-all are Tunisian except those who are not Tunisian-had been painstakingly rewritten.Originally it had referred only to French or foreign "nationality," without any mention of subjecthood.The phrasing was important, for the foreign affairs ministry hoped that "the promulgation of this decree will allow Libyan natives who arrived in Tunisia prior to October 28, 1912, to be considered Tunisian."126"Transitional provisions" established, most importantly, that Libyans in Tunisia would fall under beylical justice for a period of five years while waiting for Italy and France "to conciliate their respective points of view with regard to the matter of principle."127This never happened.

V. SOVEREIGN TERRITORY?
Four years and a world war later, France still had not eliminated the problem of extraterritorial sovereignty exercised by its rivals in Tunisia.Maltese, now numbering over 11,000 in the Regency, were exempt from conscription.Italians, invoking the 1896 "most favored nation" accords, managed to avoid paying special taxes imposed on war profits.The impact of this was not negligible since Italian migration to Tunisia had continued to outpace that of the French, and its population there was thus twice as large as France's. 128It clearly was not enough to try to end Tunisians' forum shopping by asserting the bey's sovereign right to ascribe Tunisian nationality to persons born in his territory.Protectorate authorities also needed to find a way to make Tunisia's Europeans French.In neighboring Algeria, this had been accomplished in 1889 because the law granting French nationality by virtue of double jus soli-children born in the territory to foreign parents themselves born thereapplied to this "integral" part of France.In Tunisia, however, such an endeavor meant claiming that the French did not merely protect the bey's sovereignty; they also in some ways shared in it.
The effort to have it both ways-to maintain the pretense of the protectorate while claiming territorial sovereignty over Tunisia-engendered a legal sleight of hand in 1921 that first attributed Tunisian nationality to all non-French citizens born in Tunisia to parents also born there and then instantaneously "replaced" this Tunisian jus soli nationality with French jus soli nationality for those born to parents who had been subject to French jurisdiction in the protectorate.This was a ruse designed to give an extraterritorial principle some territorial weight. 129European powers were not fooled; they recognized a fundamental change to the protectorate settlement when they saw it, which is why France and Great Britain faced off at the International Tribunal in The Hague in 1922.The principal question put to the international court by Great Britain was whether France was entitled to "enact legislation imposing French nationality on British subjects in Tunis as if Tunis were France." 130The French government's response that "for all those subject to French jurisdiction in Tunisia, the territory of the Regency must be considered to be under French sovereignty" did not win over the tribunal. 131rance did manage to confer French nationality on children born in Tunisia to Maltese parents themselves born in Tunisia by a law of December 1923, but this came after the court in The Hague had recommended against France, and France had been forced to include a clause in the new law that allowed for these candidates to opt out of French nationality upon reaching adulthood if they so desired.While the British government ceased contesting the policy, clashes with Italians-who were exempt from the 1923 law by virtue of an 1896 treaty-intensified, as the Italians assumed (correctly) that the French government hoped eventually to apply the new nationality policies to them.132 Indeed, only a few years later the resident general Lucien Saint concluded that if France hoped to renegotiate the 1896 treaty and thereby subject Italians to "common law," it would have to be willing to link the negotiations to "the entirety of Franco-Italian questions (differences over the Maritime Alps, Tangier, Abyssinia, Syria, etc.)." 133 This was important because France might someday "find itself obliged, against its will [a `son corps de ´fendant], to annex the Regency," in which case "Italy must not be able to intervene and demand concessions or impose its veto.The potential annexation of Tunisia must not spark resistance analogous to that encountered by Austria at the time of its annexation [in 1908] of Bosnia-Herzegovina."To secure Italy's quiescence in the event of annexation, Saint proposed a secret protocol.134 France did not, of course, annex Tunisia, but the fact that officials in Tunisia even entertained the idea shows their frustration with the limits of the protectorate compromise.
In the end, France only succeeded in applying jus soli nationality to Tunisia-born Italians when Pierre Laval and Benito Mussolini agreed on a phase in of French nationality.The resulting treaty and special protocol of January 7, 1935, projected France's presence in Tunisia forward some thirty years.It held that children born in Tunisia to Italian parents before March 1945 would remain Italian, children born between March 1945 and March 1965 would have the option of claiming French nationality in the year following their majority, and children born after March 1965 would be considered French nationals definitively. 135Clearly, no one yet predicted that Tunisia would become independent in 1956.Although Laval denied any quid pro quo associated with the agreements, it is well established that he secured them by secretly promising Mussolini that France would not protest Italian intervention in Ethiopia. 136he case at The Hague in 1922, the Rome Accords of 1935, and other such renegotiations of the protectorate settlement between France and powers active in the Mediterranean demonstrated that, well into the twentieth century, France still struggled to end the extraterritorial sovereignty that foreign governments exercised in small ways every day in Tunisia.This ongoing contest had constantly exposed the fault lines in the protectorate compromise, as it facilitated boundary crossings that were both physical-across the borders of various Mediterranean territories-and legal, from "native" to "European," from subjected to protected.Tunisian subjects' willingness to traverse these boundaries in advancing their own claims not only perpetuated this international rivalry but also forced changes in the domestic civic order.
The story told here thus compels a rethinking of the narrative of imperial history in Africa.It suggests that the "scramble" among European powers for empire never really ended and that the shape this competition took depended on how European governments continued to broker influence in lands claimed by their rivals, as well as the ways in which locals exploited the divisions between those powers.Seen from this vantage point, 1881 did not mark the end of intra-European struggle for influence in Tunisia, nor did the bey's capitulation to France's ultimatum signal the acquiescence of Tunisians to a rigid civic order that entirely foreclosed their ability to make demands on the colonial state.Rather, for the first half century of the protectorate's existence, French leaders perpetually scrambled to buttress their authority in Tunisia against the dual and compounding threats of individuals' jurisdictional maneuvering on the local level and rival states' efforts to gain influence in North Africa.For the remaining quarter century of the protectorate, the French faced a different sort of problem: anticolonial nationalism, a rights movement premised no longer on maximizing Tunisians' interests within the framework of mixed sovereignty but on challenging the very basis of the protectorate premise.
A number of publications point the way toward this kind of analysis, though only one concerns French North Africa.See esp.Clancy-Smith, Rebel and Saint; Frederick Cooper, Decolonization and African Society: The Labor Question in French and British Africa (Cambridge, 1996); Laurent Dubois, A Colony of Citizens: Revolution and Slave Emancipation in the French Caribbean, 1787-1804 (Chapel Hill, NC, 2004); Gregory Mann, Native Sons: West African Veterans and France in the Twentieth Century (Durham, NC, 2006); Richard Roberts, Litigants and Households: African Disputes and Colonial Courts in the French Soudan, 1895-1912 (Portsmouth, NH, 2005); Thompson, Colonial Citizens.
Debate in the Chamber of Deputies, December 1, 1881, Annales de la Chambre des De ´pute ´s (1881), 313-32; Debate in the Chamber of Deputies, July 17-18, 1882, Annales de la Chambre des De ´pute ´s (1882), 917-73.applying to persons) rather than territorial (applying to places), its effects were diffuse.36At the time the protectorate was established, its residents included approximately 11,200 Italians and 7,000 British subjects (mostly Maltese), as well as a smattering of Greeks, Dutch, and other foreign nationals.The size of France's settlement, at a mere 700, paled in comparison.Equally concerning were the prote ´ge ´s-native Jews and Muslims who had secured the legal protection of one or another European government.In short, if the extraterritorial sovereignty of other European states, especially Britain and Italy, were allowed to persist, these states-more so than France-would effectively be responsible for the rule of law in Tunisia.That is what Cambon meant when he said France would be cornered if the Capitulations were not suppressed.