The taverns and cafés that sprang up in Tunis and La Goulette were the scenes of interminable altercations fueled by alcohol and affronts to male honor. One Saturday evening in 1870, Nicola Malinghoussy, a soldier in the pope’s army, got drunk and insulted several persons in a tavern at the port. Assuming he was a protégé of France, the outraged patrons stormed to the nearby French vice-consul to lodge a complaint. Yet Nicola could produce no valid document establishing French protection. Soon thereafter, he declared himself a Venetian subject, so the Italian vice-consul had Nicola arrested and thrown in prison. Apparently Nicola sobered up enough to locate his passport delivered earlier that same year in Alexandria, Egypt, by the consul general of the “King of the Hellenes.” Sprung by the Italian consul, he was then handed over to the Russian agent responsible for some diaspora Greeks. The Russian had Nicola incarcerated until the next Sunday; since prison facilities were scarce, the disorderly soldier was confined onboard a Tunisian aviso (ship) in dry dock near Muhammad al-Sadiq Bey’s military arsenal.1 Nicola’s apparent remorse convinced the Russian consul to release him temporarily so he could fetch his belongings and carry them back to the ship-prison. Instead, the wily soldier went on the lam and, while the janissaries searched all over La Goulette for him, he slipped onto a small boat crossing the lake to Tunis. Informed of this betrayal, the Russian had Nicola arrested yet again and locked up in a Tunisian military prison. At this point, additional evidence of Nicola’s moral turpitude was scarcely required. But soon the Mother Superior of the Sisters of Saint-Joseph convent came forward with a deposition detailing the soldier’s foiled assassination attempt on two priests to avenge an unspecified offense.2
Eventually, Nicola was hustled onboard a French ship heading for Bône and expelled. Here the jurisdictional map becomes even fuzzier—why was Nicola dumped on colonial authorities?3 Was it because of his alleged status as a Zouave in the papal army, a conjecture that, if true, might make him subject to French military law? Would he be condemned to forced labor in Algeria, the fate of many individuals accused of crimes whose status was uncertain? Or would he be banished on yet another ship bound for somewhere else in the Mediterranean? Could he be sent to France and perhaps eventually deported to French Guyana?4 And did Nicola himself really know (or care) about which jurisdiction he was under? Once expelled from Tunisia, Nicola’s destiny would be decided by the very category then in a state of flux and subject to varying interpretations and widely differing outcomes—politicolegal belonging.
As elsewhere in the Ottoman Empire, justice in Tunisia traditionally rested upon the fundamental principle that religious affiliation determined personal status under the law. Resident non-Muslims, who were mainly European Christians or Jews, had safely engaged in trade and commerce for centuries under the protections guaranteed by the Capitulations, conceded by the Porte to European states, as well as bilateral treaties concluded between the rulers of Tunis and various Mediterranean powers. The aftermath of the Napoleonic Wars, however, brought rude shocks to the system; thrown into disarray was the ideal template for maintaining order and securing justice for religiously heterogeneous populations sharing the same space. More people moving about in ways different from previous centuries constituted a prime motor for change. Human mobility on an unprecedented scale incubated new forms of imperial interventions into the Muslim states on the Mediterranean’s southern and eastern rims.
This is a story narrated by older scholarship on the nineteenth-century Ottoman Empire in which mixed or consular courts proved the Trojan horse for foreign meddling.5 The seemingly endless disputes over jurisdictions were interpreted, however, according to narrowly construed notions of imperialism—and not as significant in and of themselves for understanding local social worlds. In that earlier scholarship, the legal quagmire created by conflicts involving the subjects of local rulers, recognized protégés, resident expatriates, recent immigrants, or familiar strangers under shifting or uncertain jurisdictions was presented as an episode in modern Middle Eastern history, not as one chapter in larger struggles unfolding across the world in much the same manner and period. Conflicting jurisdictions are universal phenomena, which haunt our world ever more today due to high-intensity “globalization.” The Iranian exile Mehran Karemi Nasseri, who resided at Charles de Gaulle Airport for years awaiting an exit visa to quit French territory, immediately comes to mind.
In older imperial formations, such as the Mughul or Ottoman empires, claims of legal authority over religiously and culturally diverse subject populations led to communal or religious tensions, and at times outright conflict, yet in practice evinced a high degree of flexibility. As large numbers of Europeans became parties to conflicts in multicentric legal orders in South Asia or the Middle East, protracted jockeying over local jurisdictions carved out sizeable zones of legal uncertainty long before the imposition of colonial rule. From roughly 1800 on, small, seemingly trivial disputes intersected with larger political, legal, economic, and demographic transformations that expanded the reach of European empires from below or from the margins. Scholars now argue that older, precolonial legal practices and arrangements not only determined the nature of colonial regimes globally but ultimately the contemporary international legal order. For our purposes, legal pluralism is understood as “the coexistence within a given area of multiple state and non-state bodies that propose norms, settle disputes, create authoritative categories of knowledge, distribute resources, and impose sanctions.”6
This chapter studies legal pluralism in precolonial Tunisia, notably in the capital-city region, as a unified field of social action that was a single, albeit moving, canvas. It mobilizes evidence from small-scale disputes to trace the ways in which women and men quarreled, schemed, cooperated, or merely went about their daily business and in so doing transgressed, manipulated, pushed out, or simply bumped up against jurisdictional boundaries. Such an approach duplicates the actual practices of beylical or Ottoman subjects, long-term European residents, and Mediterranean immigrants of indeterminate status as they sought redress of grievance, recovered outstanding debts, disproved accusations of wrongdoing, or wreaked vengeance upon neighbors, creditors, or ex-lovers. But cases and contests from elsewhere are examined because events in a provincial seaport, such as Mahdiya, inevitably had repercussions in Tunis and vice versa. Moreover, as was true of contraband, our story does not stop at the border between Tunisia and Algeria.
We begin with an examination of beylical and consular justice and the ways in which they overlapped. The task of maintaining sociolegal order meant that consuls entertained constant, often daily, communication with the Tunisian ruling class, which forged a commonality of interests and shared worldviews, especially in earlier decades. This became particularly evident when female comportment was at stake, and thus it is argued that consular politicolegal protection implied the sexual policing of women in ways that directly implicated beylical officials. It is also necessary to reconstruct local disciplinary regimes that incorporated newcomers into the existing system, tolerated the less than desirable, imprisoned wrongdoers, or expelled the troublesome. Variant legal remedies and strategies went into the mix of agreed-upon “ways of doing things” recognized by Tunisian and consular authorities alike—at least for part of the precolonial era. A constitutive element of multicentric orders is “forum shopping,” through which individuals appeal to competing legal authorities to secure a more sympathetic hearing and hopefully successful outcome. Women often employed forum shopping as a strategy given that gender codes limited, or even barred them, from seeking out other legal venues.7
Gender constituted a central element in legal pluralism and, because women were relegated to special jurisdictional spheres, a section of the chapter deals specifically with female conversion as a form of protection switching. Algerians in Tunisia presented uniquely complex legal issues for French and Tunisian authorities, and therefore the status of expatriate Algerians receives separate treatment as well. People sorted themselves out according to blueprints or scripts informed largely, but not exclusively, by their understanding of what justice and jurisdiction meant at any given moment. At the same time, “protection” shifted in response to internal and external forces; the meanings attached to “protégé” proved transient, elusive, at certain junctures. This sorting out drew upon implicit rules of the game, rules often fully understood only the by insiders. That inside is what we are after.
“It will be seen that the characters of the later Beys of Tunis are not those of monsters of caprice and crime . . . on the contrary, they might be advantageously matched with many of the sovereigns of Europe.”8 The logic of the Husaynid dynasty’s acknowledged authority and legitimacy demanded well-orchestrated displays of benevolence, munificence, and pageantry. However, the lynchpin was the ruler’s chief duty—protecting Muslims and Islam—and dispensing justice in accordance with religious dictates, customary law, and cultural practices. Even without a growing resident community of non-Muslim, non-subject people, pre-colonial Tunisia displayed the characteristics of a complex legal order because of the presence of two Islamic madhhab, Hanafi and Maliki, as well as the evolution of state law as distinct from religious law and the importance of customary law—‘urf—in the countryside, particularly among pastoral-nomadic groups. The rabbinical courts for indigenous (as opposed to European) Jews represented another dimension of legal pluralism, since at times Jews appealed to Muslim authorities for redress. And, in theory at least, Ottoman law applied to Tunisia as a province of the empire.9
By the nineteenth century, the beys had usurped some of the functions that were theoretically the purview of Muslim jurists. Since classical Islamic political theory did not recognize separation of powers, the head of state was considered the highest Muslim judicial authority; thus the beys enjoyed the title of qadi al-qudah (chief qadi). For most questions relating to personal status and property, the qadis, as arbiters and interpreters of the law, and shari‘a courts retained competence. However, the rulers usually claimed jurisdiction for capital cases but delegated authority in other matters to local officials or to corporate groups, like guild masters, to define and punish minor infractions. In legal quarrels over land ownership or use, the qadis’ opinions were paramount; because of this, the system they administered became the prime object of attack by Europeans seeking to establish private property rights. In any case, “a rudimentary distinction between religious and civil law” had emerged by the nineteenth century, if not before, although most litigation was overseen by the qadis “as the normal representatives of the judicial process.”10
FIGURE 13. The Bardo palace throne room, c. 1899. The Husaynid rulers formally received foreign diplomats and Tunisian government officials in this audience chamber, whose eclectic ornamentation reveals aesthetic and artistic elements from North Africa, the Ottoman Empire, and Europe. (Library of Congress Prints and Photographs, LC-DIG-ppmsca-06034.)
In the palace complex just outside Tunis proper, state and Islamic law converged at the Bardo’s “hall of justice,” which among other things functioned as an appellate court. In the sahn al-burj (tower courtyard), the beys entertained all manner of supplicants, paying keen attention to charges leveled against corrupt provincial officials. Europeans observing the daily audiences expressed astonishment at the fact that tribal peoples, women, and those of humble rank were received to lay forth their grievances. One witness to the proceedings at Ahmad Bey’s palace in 1845 noted that “At the Bardo the bey holds a Court of Justice—a supreme tribunal—in the presence of his grand functionaries, where, however, the meanest of his subjects may prefer the smallest complaint and is sure to have hearing. At this palace-village, the Bey usually receives the Consuls and various representatives of European Powers, and any extraordinary embassies from the Porte and Christian Princes.”11 Not all rulers were as attentive to, or enthusiastic about, dispensing justice to all comers. Ahmad Bey was chastised for infrequent attendance and therefore neglecting his paramount duty as a Muslim sovereign. Finally, the intersections between beylical and Islamic law were embodied by the Bardo’s majlis al-shari‘a with which the ruler was to consult on a regular basis, although this too varied.12 On a day-to-day basis, the administration of justice came to be patterned by what might be called the rhythms of seasonality. As the nineteenth century wore on, the beys, their courts, and the consuls spent extended periods of time in summer villas or palaces by the sea instead of the Bardo, which slowed matters considerably. As parties to a squabble increasingly came from different religious communities, the observance of three consecutive holy days rendered justice positively sluggish, since business could only be conducted during the four remaining weekdays.
For international diplomacy, the Bardo’s hall of justice represented a critical space that provided access to the throne in the same way that entrée to the bey’s table confirmed or conferred favor. Yet from 1830 on, established ways of conducting diplomacy were under attack due to the occupation of Algeria and the expansion of European military clout around the Mediterranean. Would-be powers, such as the Kingdom of the Two Sicilies in Turin, sought greater recognition among the concert of nations at the expense of weak states like Tunisia by refusing to observe older court etiquette. In 1830, the Sardinian government presented a list of diplomatic grievances, including demands that consuls not be kept waiting at the palace for hours to confer with the bey. Another bitter controversy arose over the older ceremony requiring the consuls to kiss the ruler’s hand during audiences. Contested by the revolutionary French government in 1796, and the British and Americans after 1816, as an unacceptable symbol of autocracy, the practice was abolished in 1836 after the French consul refused to make the ritual gesture, since it was no longer employed in Christian courts or even in Istanbul. In 1830 France imposed new treaties upon Tunisia (and Tripolitania) under the pretext that corsair activity—which had largely ceased years before—had to be eradicated, an excuse that figured in French justifications for invading Algeria. The treaty also ended, among other things, compulsory gifts to the beys.13
In the course of the nineteenth century, two ideal grids or templates for ordering sociolegal relations in Ottoman lands collided—the much older Capitulations and the Tanzimat decrees proclaimed from 1839 on. The older system, the Capitulations, dated back to the sixteenth century when clauses were inserted in the 1569 treaty between France and the Porte granting special legal, religious, fiscal, and commercial rights and privileges to resident foreign merchants and representatives. In a quid pro quo arrangement that was mutually beneficial to both parties in that period, Europeans conducting trade and diplomacy in a Muslim empire were first of all guaranteed security of person and property. From this concession came the freedom to maintain religious buildings and worship freely, exemption from local taxes and sumptuary codes, and the enjoyment of testamentary rights. The second principle, extraterritoriality, established consular jurisdiction, which meant that Europeans in Ottoman lands had recourse to their own consular courts for most legal matters. In return, the Ottomans were spared the bother of providing justice to nonsubjects and in return enjoyed access to a range of Europe goods, notably military ware. These rights were eventually extended to other European states and in theory applied to all Ottoman provinces, but by the nineteenth century local practices varied widely and wildly.14
Nevertheless, the Capitulations did not necessarily shape the actual legal terrain in Tunisia because the Husaynid princes (and their predecessors) had long concluded bilateral treaties independently of their Ottoman overlords. Observers invariably noted “the virtual independence of these Beys, they are permitted to make separate treaties and contract alliances with all the powers of Europe; to make peace or declare war against them, without any advice or consultation with the Porte, and any other Mussulman authorities.”15 Between 1270 and 1881, Tunis concluded 114 treaties with various and sundry powers; a separate treaty was signed with France in 1605 and another in 1662 with England, although the earliest recorded document was the thirteenth-century treaty with Aragon. With the advent of new rulers to the throne, these treaties were often renewed, but not always. Trade had long been the principal crucible for diplomatic relations, and treaties guaranteed the crucial droit de résidence (right of residence) that protected merchants as well as their goods when they were engaged in commerce and residing in Muslim lands. As was true generally throughout the Ottoman Empire from the 1660s on, the Tunisian state increasingly enclosed nonsubject communities within specifically designated spaces in the capital city. The right of residence constituted the pivot of concessions (in Tunisia, sometimes referred to as shurut) to resident non-Muslim nonsubjects The social fact of enclosure exerted a tremendous influence upon the spatial configuration of pre-nineteenth-century Tunis but was progressively undermined by immigration, the housing crisis, and the more or less spontaneous physical expansion of the city extra muros long before colonialism.16
Before plunging into the progressively tangled thicket of competing jurisdictions and alternative legal remedies, we need to recreate the social world of the consulates, which dealt with a spectrum of individuals on a daily basis—their own nationals, beylical subjects, runaway slaves, travelers, and other city inhabitants of divergent backgrounds. In part, the recognized right of consular jurisdiction accounted for many—but not all—of the judicial and social responsibilities assumed by consuls and consulates, although the lines of demarcation among competent authorities had always been elastic and therefore large areas were subject to daily, at times interminable, negotiation and compromise.
By the 1830s there were some fourteen consulates in Tunisia, representing an assortment of nations and empires as well as emerging states and nationalities. The legal situation of Italians in Tunisia prior to unification was especially knotty, with five consulates exercising jurisdiction.17 Even consular officials evinced uncertainty about who belonged where in the moving legal checkerboard. With more and more people showing up in Tunisia (and Algeria), the bean counters in the British and French consulates, which kept the best records, became overwhelmed; however, many newly settled folks avoided contact with authorities. As was the case with the characters involved in the 1868 contraband and fencing operation—Giovanna, Gianmaria, and Annetta—they probably steered clear of consulates for obvious reasons, until misfortune fell from the sky.
Until the Protectorate, the consulates represented the principal mechanism of social insertion—or exclusion—and therefore created opportunities for, as well as limitations upon, protégés or nationals. Theoretically, the consuls were accorded generous power since they assured law and justice: investigating crimes; imposing fines or punishments, including imprisonment or expulsion; conducting probate proceedings; resolving debt or inheritance disputes; and so forth. They assumed the duties of policemen, judges, notaries, and FBI agents by interviewing parties to disputes, taking depositions, and gathering evidence at crime scenes. Consulates oversaw the drawing up of affidavits—written statements made under oath before a competent authority, notary or otherwise; and depositions, the written testimony of witnesses under oath. These legal acts were conveyed by signature and seals. In 1852, Lombard, a French citizen complained about the behavior of Angelo Pittalugo, a Sardinian, accused of “un attentat à la pudeur,” or sexual assault upon Lombard’s son, age unknown. To launch an investigation, the French consul brought the Lombard couple to the consulate to draw up a deposition, which was submitted to Sardinian authorities for investigation.18 At times, consulates functioned as pawnshops, primitive banks, and secure depositories for valuables. A consul acted as a public health agent by granting bills of clean health and clearance to ships under his nation’s flag; decisions regarding quarantine either facilitated or hampered trade. Until Catholic missionaries arrived in the 1840S to establish educational, health, and charitable organizations, the consulates filled critical social welfare roles: as places of refuge, administering poor relief and charity, as marriage minders or menders, as moral guardians, and as mediation bureaus.19
When contention erupted among business partners, neighbors, families, or individuals from different diaspora communities, some looked to consulates for conflict management, although they might appeal to Tunisian officials, church authorities, friends, or kin for mediation as well. Of course, the nature of the documentation predisposes the record to social conflict and thus should inspire cautious interpretation. Prior to massive Italian settlement, the Maltese were the most likely to seek consular mediation. This was particularly true in earlier decades because Church or familial peacekeepers were absent, and the Maltese were the single-largest expatriate community. Moreover, many Maltese acquired some facility in Tunisian Arabic, English, and Italian, which meant that they entertained intense interactions with a greater cross-section of Tunis than most, thereby increasing the likelihood for disagreement. The examples discussed in the next paragraphs are taken mainly from the period just prior to 1830 in order to demonstrate that, while the French invasion of Algeria worked as a “migratory pump” across the central Mediterranean corridor, some, perhaps many, of the sociolegal patterns introduced by large-scale, spontaneous immigration were already in place.
Detailed logbooks kept by the British consulate from the late 1820s until the 1830s recorded the daily, at times hourly, appearance of people looking for conflict resolution; it provides a porthole view of how things worked. Here is the entry for August 2, 1828: “a trivial dispute occurred between two Maltese which was speedily adjusted.” This laconic sentence is a leitmotif that reoccurs throughout the logbooks until this type of documentation disappears from the archive. The fact that individuals were often not named but merely identified as “two Maltese” raises questions. Could it be that consular officials did not deem naming important? Was it a sign of disparagement and/or an acknowledgement that since the Maltese moved in and out of Tunisia so rapidly, and in such great numbers, that it was not worth the bother to provide family names? But others were identified and thus named, perhaps because they were longtime residents or habitués of the consulate.20
Squabbles over financial arrangements provide fragmentary clues regarding women’s relationships with those from different religious communities. In December 1829, a Tunisian Muslim woman sought redress from the British consulate; she “laid a complaint against Fsadney, the Maltese, for having about 8 months back obtained 800 piasters from her, assisted by one Baba Mustafa, a Turk.”21 This incident, and others like it, demonstrates that Muslim women entered into business partnerships with Maltese men, or at least loaned them money. When her creditor proved insolvent, the “Moorish” woman (as she is identified in the record) felt no hesitation about personally lodging a protest with consular authorities. Was Fsadney her neighbor? And what about the Turk, Baba Mustafa? We will probably never know, but the Moorish woman did appear to be conversant with the system of protection—otherwise why would she have bothered going to the British?
As housing became a scarce commodity, rental disagreements escalated, mainly but not exclusively between foreign protégés and Tunisian subjects, who held city properties in one form or another. The same room or apartment might be rented to three different parties; subletting rooms without the owner’s knowledge was apparently quite common, and because arrangements were oral in nature, the potential for bickering over a particular residence was virtually limitless. As illustrated by the two-year ordeal of the French baker, Astoin, discussed in chapter 4, agreements were broken at will. Astoin’s endless search for rented rooms for his bakery and domicile in 1848 led the French consulate to organize a formal inquiry, gather testimony from witnesses, and examine physical evidence.22 These cases are significant because they signal a growing willingness by diplomatic representatives to become more deeply involved in the intimate domestic affairs of protégés of modest social rank. The careful attention paid to seemingly inconsequential matters arose from the desire to avert potential conflict before it engulfed a family or neighborhood, or worse, seeped into intercommunal relations, which in turn could provoke the kind of violence that activated legal wrangling.
While the consulates attempted to assure the safety of nationals, some under their protection resided far from Tunis. During a robbery at their home in 1838, a French national, Auberger, and his wife were murdered in a remote part of the countryside. The double slaying scandalized local French merchants, who submitted a formal complaint to the Chambre de Commerce in Marseilles that laid the blame for the double murder on the incompetent “French consul who fails to care for nationals and protégés.”23 This and other incidents demonstrate that if the consuls were the prime peacekeepers and protectors, they themselves were supervised by their own communities. In reality, protection proved an ideal—not real—political and legal template because the consuls frequently lacked the means and/or the will to fully supervise the mobile populations under their administration. Sir Thomas Reade’s 1833 lament about British protégés sums it up: “They complain of my not rendering them justice. How can I? I have no authority.”24
Legal treatises devoted to law in nineteenth-century North Africa composed by French jurists came mainly from the pens of colonial officials in Algeria, who emphasized inalienable difference in law, procedure, and custom when comparing European and Islamic jurisprudence.25 Local, often orally transmitted remedies for conflict resolution were subsumed under the rubric of “customary law,” which called forth its binary (and superior) opposite—rational, codified European justice. In this landscape of assumed incommensurability, Islamic laws or practices were portrayed as unambiguously distinct. However, in precolonial Tunisia, there existed considerable (although not always acknowledged) overlap in consular and beylical justice in terms of customary norms and procedures. Moreover, intersections operated not only in the realm of mutually agreed-upon ways of doing things but also in formal procedures governing, most importantly, admissible evidence. Depositions drawn up by Islamic authorities—shahadat amama al-mahkama—were admitted as evidence in some cases, above all, in murder cases involving victims from different religious or national communities, as seen below in a Maltese murder case from 1843, and in the alleged murder in 1874 of a Tunisian woman, Zaynab, by her Algerian husband, an expatriate under French protection.26
As recognized instruments, bilateral treaties concluded between Tunis and European states assumed the existence of a mutually shared and recognized legal universe but, I argue, so did the customary practices observed by beylical authorities and consuls, at least for part of the century.27 A constant refrain in documents penned by both Tunisian and consular officials translates the signal importance of locally defined legal praxis: “as is the custom in this country” or according to “the invariable custom of the place.” In his December 1843 letter to the Earl of Aberdeen regarding the Maltese murder imbroglio, Thomas Reade reminded his superior of the way things were done with this phrase: “according to what is customary in this country.”28 Tunisian authorities employed the same formula in Arabic: “kayfa al-‘ada bi biladna” appeared in similar exchanges with European counterparts.29 But customary ways of doing things were not always observed. When in October 1836 the bey had four Maltese arrested on suspicion of robbery and refused to observe “invariable custom” by releasing them to the British consul for punishment, a man-of-war under the command of Rear Admiral Sir Thomas Briggs arrived from Malta. Mustafa Bey relented and handed the four Maltese over to the consul. To exert moral and political pressure upon both the Maltese and the Tunisian government, Reade proposed that the British navy dock in La Goulette on a regular basis: “It is much to be lamented that our vessels of war do not shew [sic] themselves more frequently . . . it is now near 12 months since one was here . . . scarcely a week passes without French [war] vessels coming.”30 Progressively from this period on, these older, often implicit mechanisms for managing conflict in a multicentric legal order were eroded.
If customary procedures were a product of the accumulated weight of the past, they were also a consequence of indifferent record keeping, which meant that many a consul “made it up as he went along.” Until at least 1847, the British consulate lacked copies of treaties concluded between London and Tunis determining jurisdictions and procedures, in this case the 1757 treaty. In 1847, Louis Ferriere, Reade’s successor as consul, had to beseech his own government to supply him with a copy of the most recent treaty: “It would be highly desirable that a Copy of the early treaties between the British Government and that of Tunis should be kept for general reference in the Consulate; where they do not appear to exist, for the present Vice Consul has never been able to get a sight of those important documents during the six year he has been at his post.”31
A similar situation obtained among French nationals residing in the beylik, many of whom were completely ignorant of the texts of treaties theoretically governing their lives and livelihoods. “The result is that they do not know their rights and a great uncertainty governs their relationships with the indigènes, or their relationships with or participation in local activities.”32 At times European consuls temporarily ceded recognized rights of protection over nationals or protégés to the Tunisian state. As an interim measure in 1862, Sir Richard Wood requested that Muhammad al-Sadiq Bey place British subjects in Porto Farina under his protection because the British agent’s recent departure had left the town’s mainly Maltese population
without authority to whom they can apply for assistance in their affairs and protection of their persons. Would your Highness permit the [Tunisian] Governor of Porto Farina to temporarily take under his protection the British subjects residing within his district . . . in order to aid them in the adjustment of their affairs and keep the British general consul in Tunis informed of any occurrences. In the event that your Highness should be pleased to accede to my request, I further hope that your Highness will give a similar permission to the Governor of Tabarca [sic] in favour of the few British subjects who dwell in that distant locality and who are without protection.33
Precedents for such arrangements are found in earlier centuries; for example, the Spanish Catholic missionaries, the Trinitarians, were placed in 1791 under the “immediate protection of the bey,” a consequence of the French Revolution.34 It is noteworthy that Wood’s 1862 request employed the term al-ra‘iya, meaning “protected flock,” to refer to the British subjects for whom he sought Husaynid protection (the Arabic equivalent is himaya). This suggests that in day-to-day negotiations protection was understood not as a legal absolute but as representing a spectrum of rights and privileges with inherent plasticity in interpretation. If the texts of treaties or other legally binding instruments were essential for the rules of the game, the situational parsing of clauses or provisions—not to mention problems of actual translation—were always subject to a range of local meanings, understandings, and applications. Finally, the more energetic consuls not only acted on behalf of their nationals or protégés but also at times intervened to defuse tensions between subjects of the bey to preserve social order in the capital—which again suggests mutually observed norms.
The consulates attracted a wide array of people on a daily basis and employed heterogeneous staffs—Tunisians and other North Africans, Europeans, creoles, Muslims, Christians, Jews, and transimperial people on the move. Thus, they represented the Mediterranean world in miniature and, as such, were akin to the beys’ courts and households by virtue of their religious, racial, ethnic, or social diversity. Another shared “way of doing things” was the local culture of sanctuary.
Consular courts represented one significant legal resource for resident nationals or protégés as well as for beylical subjects and others. But the word “court” demands spatial analysis because the actual places dedicated to legal proceedings served multiple purposes—mediation, brokerage, poor relief, prison facilities, and finally sanctuary, which represented one expression of forum shopping. “There is not any House in Tunis, in the least calculated for a Consulate, unoccupied, but indeed was it otherwise, it would not be desirable to relinquish the present one; for its situation is much preferable to any other in the City. [The British consulate] adjoins the entrance by the Sea Gate, which renders the access to it much easier than to any other Consulate, except the Swedish one, which is affronted to it.”35
Location was everything. The British consulate’s placement made it especially busy on any given day. In the political culture of nineteenth-century Tunisia, specific spaces and the social practices associated with them translated into a type of forum shopping. Some city inhabitants of whatever religion or status attempted to mobilize all of these spaces—saints’ shrines, the bey’s saqifa (antechamber, i.e., “roofed gallery or passage”), consulates, church cemeteries, and ships—at one time or another in the hopes of securing a more favorable hearing, to momentarily suspend violent conflict, evade pursuers (especially creditors), or to dramatize their plight. Since the performative possibilities that different spaces offered were critical to calculations, forum switching is best understood through an ethnography of the actual sites of redress.
The bey’s saqifa and the consulates shared features relating directly or indirectly to the realm of justice, but the Bardo was some distance outside city walls and less accessible than consular buildings whose right of asylum was respected by local authorities. Indeed, consular correspondence employed a variant of the Arabic term saqifa to denote a space of sanctuary: “a Moor having stabbed one of the Dragomen of the French Consulate, took refuge in the Skeif [i.e., saqifa] of the British Consulate, and a Hamba . . . endeavored to apprehend and remove him thence by force, but was prevented and the French Vice Consul and the Eleve Vice Consul applied to have the Moor surrendered to them but the Skeif being a place of Refuge and security, the application was refused.”36 Before abolition, African slaves sought haven among the tombstones of Saint George Church, as extraterritoriality extended to cemeteries whose location extra muros in this period made them all the more attractive.37 Ships moored in port were sometimes employed as sanctuaries, although La Goulette was a fair distance from Tunis and not easily reached by most.
The following snapshot from a day’s drama during the summer of 1828 clearly shows that consular buildings were collectively viewed as neutral spaces, even by subjects of the bey. “A Moor, being pursued by another Moor for debt, seized the column of the British consulate door to seek protection, the creditor attempted to hinder him, but he escaped from his hand and took refuge in the consulate, on which the Dragoman of the consulate brought a Hambi [sic, a hanba] and conducted the creditor to prison for attempting to hinder the debtor from seeking refuge in the consulate.”38 Here the “wronged party,” the creditor in hot pursuit of someone owing him money, was conducted to prison by a local official for not observing customary norms. The British consul’s acquiescence to the outcome indicates awareness of, and agreement with, how the system worked.
In another example, indigenous Jews sometimes sought asylum at the consulate during street altercations. On one occasion in August 1828, a Jew took refuge in the consulate because he was “pursued by a Moor a little inebriated and riotous.” The dragoman hailed a member of the urban gendarmerie and the drunken “Moor” was carted off to Tunisian prison.39 The intervention of Tunisian authorities demonstrates that consular and beylical policing worked together to keep the peace. One is struck by the humble social origins of many seeking sanctuary, which at times shaded off into forum shopping. But when court notables took refuge in consulates, the ante was upped to dangerous levels.
In 1837 the French consul contacted Hassuna al-Murali, the bey’s first secretary and interpreter, with news of an unfolding drama at the consulate where Hammada b. al-Hajj had taken refuge for several months to escape the alleged persecutions of his brothers in a battle over family inheritance. Significantly, the brothers had enlisted the bey’s support. In the French consul’s words: “In vain, I have told Si Hammada Belhadj [sic] that I have been assured by the Bardo that he has nothing to fear from the bey. However, Si Hammada persists in refusing to leave the asylum of the French flag; he wishes the bey to order that these differences be submitted for adjudication either to the Chara [Islamic court] or to the tribunal for commerce.”40 By using the French consulate as a residential hotel, Hammada’s strategy was in large measure performative—to dramatize his predicament which then became a public, citywide drama. From this period on, a whole host of Husaynid subjects—palace mamluks, the notable Jalluli and his family, and even a high-ranking Tunisian military officer—sought temporary asylum at European consulates, although affording sanctuary was often viewed with opprobrium by ministers in Paris or London.41
In the next decades, commonly agreed-upon rules were worked out. In 1864, after Pietri Bogo, a Tunisian subject of Italian origins, got into an altercation with Joseph Gandolphe, a French protégé, Bogo fled to the Swedish and Norwegian consulate. Tulin, the consul, stated that, “according to local [emphasis added] custom, a foreign national can only take refuge in the consulate of any power for a total of three days only after which time the consul is required to render the refugee over to whomever is responsible for him.”42 After three days, Bogo would be handed over to the appropriate authorities. Consulates constituted spaces off-limits to political authorities and theoretically open to most, whether protégé or not, but there were temporal limitations. Maneuvers such as these posed grave dangers because they not only lent themselves to outside meddling but eventually carved out jurisdictional zones outside of beylical or Islamic justice. However, this strategy was gendered; residence at a foreign consulate was normally not an option for Muslim city women, unless they were slaves or ex-slaves, since to harbor these women would dishonor their kin. In some cases, women who had taken asylum in consulates were delivered over to a shrine (zawiya) in Tunis for safe haven until matters could be sorted out. This is what occurred in 1879 when a “negress by the name of Halima bint Aly el Bernaouy [sic] belonging to Sidi Haydar has fled to the consulate. I have sent her to the zawia [sic] until you kindly procure for me her manumission papers.”43
The most popular places of sanctuary were shrines, which had an ancient pedigree in North Africa; Tunis was densely peopled by saints and their tombs, with countless others scattered around the country. The tomb-shrines of holy persons, male and female, were universally regarded as spaces of hurma (holiness) where the sacred powers of the deceased or living saint trumped the state. In a sense, the saint’s shrine constituted a jurisdictional blank space that did not so much resolve conflict as suspend it; when refuge seekers left its confines, they were fair game for pursuers. Muslim shrines afforded haven to subjects hounded by state authorities for taxes, by irate creditors seeking outstanding debts, by parties to a vendetta, or even to murderers pursued by the victim’s family; as such, they were more or less democratic.44
However, some wily individuals set up house and even businesses within a shrine’s sacred precinct, remaining there for weeks, even months at a time. In this way, long-term haven seekers dramatized their plight, turning it into a multi-act performance that ultimately threw the affair into the court of public moral opinion—or caused the aggrieved party to abandon hopes for justice. However, the extended-residence strategy generally favored natives, since a kin network was needed to supply provisions on a regular basis and bribe the guards posted outside the shrine. It is no small wonder that European consular authorities increasingly demanded an end to saintly neutrality, sacred extraterritoriality, for wrongdoers.45 Seeking asylum in a shrine or sanctuary, assisting in person at the Bardo’s hall of justice sessions, or designating an agent (wakil) to represent one’s case were options open to some, but not all—what other avenues were available for redress?
A discursive expression of forum shopping was the petition soliciting assistance from the bey or powerful court figures; at times this was used by non-subjects to do end runs around their own consuls. Subjects and nonsubjects made good use of the pen to file shikayat (complaints) but, needless to say, those who were literate or could afford the services of a katib (professional letter writer) benefited most. Foreign nationals petitioned the Tunisian ruler or members of the court to get a better deal than that offered by their representatives. The beylical archives contain abundant complaint literature claiming that justice had not been served in other legal forums and/or seeking favors. Resident Europeans petitioned the Tunisian state for resolution of conflicts, employment, donations to charities, or assistance with housing or rental disputes. In parallel fashion, beylical subjects increasingly turned to European consuls for momentary succor or degrees of informal, and increasingly, formal legal protection.
Letters from European residents contained in these records, titled “shakayat mukhtalifa min al-ra‘iya al-ifranjiya” (diverse complaints from foreign Christian subjects), were at times directed to the ruler or his entourage without initially going through a diplomatic or other kind of intermediary; at others, a petitioner sought to counter a previous consular decision at variance with the hoped-for outcome.46 Not all petitions addressed directly to the Husyanid political elite constituted forum shopping. Because the palace controlled scarce resources, petitioners also appealed to the beys for favors that only they could dispense.
Since trade has historically constituted one of the principal vectors of legal pluralism, commerce, business partnerships, and especially credit operations ensnared city inhabitants in financial relationships that often turned sour or worse. A major source of social strife was debt, which often demanded both beylical and consular intervention. Creditors worried that debtors would slip away to other ports, a frequent occurrence. One preventative measure was to confiscate travel papers until the debt was repaid or until a third party guaranteed the outstanding obligation.47 However, the single most critical consular function was determining the legitimacy of claims for protection, which also necessitated counting people and keeping tabs on their whereabouts; heightened immigration, together with other factors, rendered this a daunting enterprise from midcentury on.
What mechanisms were deployed to calculate the numbers of protégés as well as certify identity and therefore the right of protection? First, counting: In July 1844, London demanded that the consulate in Tunis provide statistics; significantly, it took a year and a half to comply. The 1847 “Return of the Number of Maltese and other Subjects under British Protection in the Regency of Tunis” stated that “the number of persons who appear [emphasis added] enrolled as British protected subjects . . . amount to 5,800. I beg to observe to your Lordship that the number of these Subjects continues annually to increase, there having been 257 fresh arrivals, and only 73 departures registered during the year.”48 In the appended table were listed 3,020 Maltese, including women and children in Tunis and La Goulette; 160 Ionian Greeks; 38 natives of Great Britain, Gibraltar, and elsewhere; to which were added 1,082 Maltese and others outside of the capital, for a grand total of 4,300. But here a caveat was issued: “Add probable number unregistered about one third” more, bringing the total to somewhere around 5,800. Next year’s report in 1848 showed an estimated total of 6,100 but, for the first time, the consul broke down the Maltese subjects of Tunis into categories: 2,139 men; 745 women; and 1,046 children.49
These figures, however inexact, demonstrate that registered males outnumbered females at a ratio of nearly 3 to 1, a demographic pattern characterizing initial stages in migratory movements and settlement worldwide. Nevertheless, moving about was increasingly becoming a family affair, and the floating populations of Tunis—whether Maltese or not—counted domestic units in addition to bachelors. Providing home governments with statistics of certain imprecision and uncertain value was directly related to another task that demanded considerable time, “indorsing [sic] and filling up passports.”50
A duty of increasing import was certifying legal personhood by verifying the identity of presumed nationals or protégés. This act, at least theoretically, established the legitimacy of other functions: collecting fines or outstanding debts, incarcerating unruly or criminal protégés in a local prison, issuing expulsion decrees or repatriation orders, and so forth. The nineteenth century witnessed a dramatic expansion in the state’s repertoire of coercive methods for ensuring governance over populations and resources—both within, and outside of, national or imperial frontiers. Enter the passport or something like it. As an instrument of identification, the passport underwent rapid change as political elites around the Mediterranean, indeed around the globe, sought to firmly attach some people to stable, decipherable spaces for a wide range of purposes—surveillance, military conscription, punishment, and labor extraction—while relegating others to a legal wilderness. One need only think of the 1915 Native Registration Ordinance in British-ruled East Africa mandating that all native males over sixteen years old carry passports or suffer the legal consequences.
One objective was to rein in the border crossers or, more to the point, the border straddlers, those whose legal identity could not be pinned down with accuracy. In 1830, when warfare between Tunisia and Sardinia appeared imminent, the Sardinian consul, Filippi, presented twenty-one grievances to the ruler, principally economic in nature. However, several jurisdictional matters were at stake—particularly the status of the “brothers Gianni” resident in Tunis because “it was not clearly and explicitly understood whether the brothers were Sardinians or Tuniseen subjects.”51 The Gianni brothers’ questionable status represented a common feature of the older Mediterranean system, particularly during the corsair centuries when renegades and others had switched political allegiance and religious affiliation to improve their lot in life or in response to situational contingencies. However, after 1830, governments sought to fix national and thus jurisdictional lines more firmly.
Responding to London’s request for information on how papers were issued to subjects residing in Tunis, Reade offered a frank assessment in 1831 of the tribulations posed by delivering passports to the largest community of British protégés, the Maltese. Significantly, he stated that he followed the system already in place, which required an application process, although passports were virtually gratis because “nearly the whole which are applied for [are] by the poor Maltese, who are unable to pay anything for them. They usually come to this Place quite destitute, and the little they are enabled to gain is but calculated to meet their customary expenses, added to which they are so much addicted to moving about that they seldom or ever remain here more than a few months so that when they leave it [Tunis], they possess but little money.” However, ships and ships’ masters were another matter, since “the masters of the merchant vessels are the only persons from Malta who could afford to pay for them [passports] but they do not require any, having always the customary ships’ papers issued upon their departure, for which they are charged and for which I give audit in my contingent account.”52
Reade’s successor, Louis Ferriere, pressed the home government in 1847 for permission to levy passport fees upon the Maltese who “after a few years residence in Tunis frequently return to their country with little fortunes”; all other consulates demanded fees by this time, even the British consulate in Algiers.53 Ferriere followed the consular crowd by imitating procedures in force among other nations, although British regulations varied significantly from port to port, something of which London seemed blissfully unaware. And if some protégés did return home to Malta with “little fortunes,” what were the consequences of imposing fees upon those lacking the means to pay, the case for the vast majority of Maltese? Such a policy may have encouraged emigration to other Mediterranean ports where fees were not charged or may have discouraged the Maltese in Tunis from even going to the consulate, undermining consular control over its protégés. Ferriere’s disparaging assessment of his most numerous protégés echoed the sentiments held by most European consular officials vis-à-vis nonnationals under their protection, especially those from Mediterranean islands, illuminating the fraught relationships between protected and protector.
In Tunis, the consulate rarely granted passports to “any other but British subjects,” although, according to Reade, on occasion “Moors” had applied. In these cases, passports were arranged for North Africans who had “been of service to the British interests, such as giving me [i.e., Reade] information [emphasis added] at times when I could not obtain it from any but Moors.”54 In the prior six years, only “three or four Moors” had been thus rewarded, according to the consul. As always, the imprecise term “Moor” could mean many things, but a close reading of the documents implies that Tunisians in the capital were probably the beneficiaries of the consul’s calculated diplomatic largesse. Here is a key aside about the recruitment of native informants that constitutes an unusually frank admission of consulate spying operations as well as of protection extended to Muslim Tunisians (or North Africans) for covert activities. Unclear are the terms of the protection thus extended as a reward for information gathering. Was it temporary? What did the passports granted to the Moors mean in practice? And what kinds of jurisdictional tangles might later emerge from this concession? How did this practice relate to the older tradition of furnishing letters of introduction for “respectable travelers” bound for other Mediterranean ports (which, however, distinguished them from bone fide protégés)?
Europeans without permanent representation were at times furnished with British passports, although infrequently, since most middle-class travelers arrived with some sort of papers in hand. In those few instances when a British passport was accorded to a European nonnational, Reade recorded “the nation to which the bearer belonged” in the document; the bearer was informed that “the passport itself gives them no advantages, except probably in some measure it causes more respect to be shown to them than would otherwise be the case.”55 The mention of “respect” is critical because it shows that these letters guaranteed to a third party the bearer’s social-moral qualities. Other consulates in Tunis granted passports and/or letters according to the same principle—as far as can be ascertained. And the Tunisian state issued passports to its subjects traveling to other parts of the Mediterranean. Ahmad Bey’s consular agent in Malta, Antonio Farrugia, furnished a Tunisian Jew, Haim, with a passport in 1844 so that he could conduct business in Messina, Sicily. And the beys routinely furnished Tunisian ships and captains with letters of protection.56 In the older Mediterranean culture of trade and travel, letters certifying protection, personal recommendations, or attestations of the bearer’s worthiness overlapped to a degree. These documentary attestations were not always appreciated; a Swiss officer who had served the king of the Two Sicilies sarcastically observed that in Tunis they were akin to the letters of good conduct furnished to domestics leaving service to search for work elsewhere.57 Ways of monitoring people in motion, however, were on the cusp of change as mechanisms for fixing identity merged, if unevenly, with newer instruments that authenticated protégé status and conveyed jurisdiction. Yet the correspondence between London and Tunis demonstrates how little imperial centers apparently knew, understood, or cared about consular procedures, at least in some places.
In contrast to the birth of the modern census, whose genealogy is fairly linear, the passport had hybrid origins. Slave systems historically employed physical markings to designate as property enslaved persons, whose bodies served as a kind of corporeal identity card. Related to this, the forced transfer of “free” labor from one end of Britain’s vast empire to another distant corner played a role in the passport’s emerging configuration. At the request of the East India Company in 1838, the British parliament passed the first passport legislation to organize the mass displacement of indentured South Asian laborers to areas suffering from worker shortages because of slavery’s abolition. Written descriptions of physical “features” informed by racial thinking increasingly served as tracking devices for populations scattered across the globe by modern imperialism. If the British public had been adverse to the notion of a passport until the mid-nineteenth century, on the continent a passport system had been in place well before the French Revolution, mainly for policing internal displacements, in which physical traits played an important role.58 Once again, as people moved about more widely, and particularly with the spectacular growth in travel by those from the popular classes, the urgency for a state-sanctioned system of uniform identity papers grew.
From the late 1840s on, states ringing the Mediterranean began to inventory unfortunates exiled to the sea on ships circulating from port to port. In the bureaucratic mind, physical description became more salient. The British government began keeping records of individuals who had fallen afoul of Ottoman law, consular justice, or both and thus were subject to expulsion in accordance with provisions of the order-in-council of June 19, 1844. Circulars were dispatched to British posts in port cities such as Tunis and Tripoli, or to islands like Rhodes, listing the names and crimes of “the following individuals [who] have been expelled from the Ottoman Dominions.”59 These circulars were intended to identify unsavory characters who might seek to disembark in ports and claim protection.
The 1848 “List of British Maltese and Ionian Criminals Expelled from the Turkish Dominions” included columns listing name, nationality, age, height, hair description, particular marks, statement of crime, and observations. All on the list were males between the ages of twenty and thirty-three; twelve were from Malta, the rest from the Ionian Islands. Three categories for identifying malfaiteurs—height, hair, and eye color—do not appear particularly valuable: “rather small, tall, middle” described height, while hair and eyes were invariably characterized as “black.” As for the men’s crimes, these ranged from murder, stabbing, robbery, and breaking and entering to extortion, breach of the public peace, resisting arrest, and escape from prison. One offense arose from a domestic dispute; Carmelo Ventura, from Malta, was charged with “cutting and maiming his wife.” Most intriguing are the descriptors contained under the heading “particular marks.” Here physical, behavioral, and moral attributes were conflated: “loud voice,” “gesticulates,” “habit of biting upper lip,” “dark color,” “stout,” “swarthy,” “sallow complexion,” and “sneaking appearance.” Predictably, morally resonant hues—dark colors—were associated with individual depravity. Therefore, body markings, racial features, and reprehensible forms of behavior committed to writing marked protégés as criminals.60
Problems of disputed, shifting, or uncertain jurisdictions increasingly bedeviled the Husaynid state, European nations, and foreign representatives. This was also true for travelers or migrants uncertain about—or indifferent to—their “national” and thus legal status. A French officer in the 1850s portrayed one border crosser thus: “Allegro is somewhat French. This status appears to bother him slightly and I am uncertain whether he would, if it were possible, seek to become Tunisian once again.”61
While never very numerous in Tunis, the Greeks were another growing community; their settlement was partially a result of the Ottoman-Greek Wars of the 1820S that sent waves of expatriates to North African port cities and the fact that from 1815 until 1864 the Ionian Islands were under the British Crown. Some Ionians claimed British protégé status; others placed themselves under the protection of France or Italy, while others sought Russian jurisdiction.62 Because the new Greek state had not yet appointed a consul to Tunis, Reade stepped into the breach to extend protection to Greeks in 1835, informing London that they were “equally litigious and ungovernable as the Maltese and consequently cause an infinity of trouble to the consul general.” The consul had failed to fully grasp jurisdictional complexities, since the foreign secretary demanded an explanation for extending protection to Greeks not under formal British rule: “Why so unless they be Ionians?”63
Churches, including the Greek Orthodox, must also be added to the mix of conflicting jurisdictions. Lines of jurisdiction between consular and ecclesiastical authorities remained unclear throughout the nineteenth century. In 1828, Astagio Casveriti, an Ionian subject, lodged a protest with the British consulate against the Greek priest in Tunis. The complaint alleged that the priest had drawn up a will for Casveriti’s deceased brother that later proved invalid; Astagio was outraged and sought redress. The consul decided that the matter fell outside his purview because the will had been drawn up by church officials and therefore he referred it to the “proper [church] Tribunal at Zante” on the island of Zakinthos, which at that time might have been as much as nineteen sailing days from Tunis.64 By turning to the British consul, Astagio had hoped for a more sympathetic forum and alternative legal remedy, one that was much closer to home.
What about travelers whose status was in doubt? In 1837 an intriguing ménage à trois arrived in La Goulette—a mysterious male named Miranda, accompanied by two unnamed women. Coming from Malta with English papers that identified him as Spanish, Miranda planned to settle in Tunisia but soon encountered intractable jurisdictional problems because neither the Spanish nor any other consul would certify him as a protégé. Malicious tongues in Tunis hinted that the women were not really his wife and sister-in-law, as Miranda claimed, but rather his two wives. “He appears to be an adventurer, it is said a Moroccan Jew. He and his wives are without any means of existence and have subsisted until now through handouts and charity . . . which are no longer provided them due to their bad behaviour.”65 When Pierre Gaspary, the French vice-consul in La Goulette, told them to get off the dole and find work, Miranda insulted Gaspary in a medley of languages and threatened to shoot him, which got all three newcomers incarcerated in a Tunisian facility until a consensus could be reached about their fate.
Expulsion offered the cleanest solution but a jurisdictional imbroglio arose. Since the threesome were not recognized protégés of any state, repatriation was not an option; and expulsion to Malta, where they had last been, often failed because simply returning to La Goulette on another ship was easy. After much deliberation, the Tunisian government and the consulates resolved the matter by dispatching Miranda and his women to Alexandria on a Tunisian vessel. Perhaps they would be welcome in Muhammad ‘Ali’s Egypt and would remain there. What is significant is that Tunisian authorities were obliged to put them in prison until their fate could be determined. Of course, given the nature of the sources, Miranda’s voice is completely absent. He may have been a man without a country, but Miranda was by no means alone in the period.
Ship captains, crews, cargo, and passengers presented knotty jurisdictional issues. In March 1834, a Greek brig schooner, the Sparta, whose master was Anastasio Ghirza, arrived in Tunis from Greece under British protection. Passengers and goods were disembarked without incident, but when Ghirza loaded up a human commodity—African slaves—for a run to Constantinople, the British consul intervened, informing the captain that the transport of slaves was prohibited. “He then was desirous of changing his protection from the British consulate to that of Russia, which I [i.e., Reade] likewise objected to, observing to him, that as he had originally taken the British Protection in Greece, he was bound to remain under that protection until his return home.”66 As noted earlier, Reade was a fervent abolitionist and, upon his arrival in Tunisia in 1825, had established regulations for the validation of ships’ papers for vessels conveying Africans; only captains able to produce official documents certifying that the Africans had been emancipated were cleared. Of course, such actions were legally restricted to captains under British protection, who could, upon return to port of origin, switch to the protection of another nation less committed to abolition, such as Austria, something that Captain Ghirza may have subsequently done.
As is true today, protection was withdrawn for various reasons, normally after the commission of some illegal act. The previous chapter discussed the Corsican Nicola Manucci, who benefited from British protection because his father served as consular agent in Bizerte but whose penchant for gunpowder smuggling resulted in the revocation of his protégé status. An 1851 money scheme demonstrates similar jurisdictional messiness followed by revocation. The brazen counterfeiting of Tunisian state bank notes or coinage created enormous insolvency problems for the Husaynid treasury; however this faux money scheme involved unusual actors. Ahmad Bey himself accused two Europeans with counterfeiting piasters and lodged a complaint with the French consul. The first alleged culprit, Kratky, a Prussian lithographer, was employed by Abbé François Bourgade, founder of the first missionary schools, to publish teaching tracts. Kratky was under the jurisdiction of Sweden, which represented Prussians in Tunis. “The second individual is a tailor named Feder who while he benefitted [sic] of French protection is none the less a Prussian and therefore under the same jurisdiction as the lithographer.”67 Although Feder had been granted protection at one time or another, when push came to shove the French consul punted by maintaining that the tailor was a Prussian subject under Swedish jurisdiction, and thus was not his problem.
Aside from the Fassy children discussed in chapter 4, expatriate children receive only occasional mention in archival documents. Children’s cases reveal the range of consular duties and the complexities posed by rendering justice in a port city that now included families as well as minors without kin. In 1853 Dr. Mansfield and his wife, both British subjects, adopted a child, Émile, abandoned by his French parents, and an orphan girl, Marie Dugue, about whom little else is known apart from the fact that Mrs. Mansfield claimed to be the girl’s tutriçe, or legal guardian. Apparently, Émile’s life with his adopted family did not go well. Mansfield later accused him of stealing two thousand piasters and demanded that the French consulate bring the young man to justice. But herein lay the conundrum. The adoption had been certified by a notarized act (acte notorié) as a private adoption, which did not meet the conditions of legal adoption under French law at the time.68
Which legal authorities should or could pursue the matter? In 1864, the status of the orphan girl, Marie, arose because the Mansfield couple could not produce authentic documents for her adoption. As for the wayward Émile, the French consul deferred a decision about his fate until the “Procureur Imperiale” in Tours could render an opinion. Until that time, “the young man can not leave Tunisia” and, should he be found guilty by the correctional tribunal, “he will be punished.”69 The practice of referring especially tortuous cases to tribunals or legal authorities outside of Tunisia—in Europe, Malta, or French Algeria—became increasingly common as the century wore on. (The case involving Marie and Émile raises another issue worthy of scholarly study—the fate of orphaned or abandoned children.)
Due to the emerging ethnic division of labor, employment disputes became routine because work sites frequently involved individuals under several jurisdictions. Typically, skilled laborers were Italians or Maltese hired for building grand structures—whether a new beylical palace or the British consul’s villa in La Marsa. The construction of the Chapel of Saint Louis in Carthage was initiated in August 1840 under the auspices of the French consul but with generous support from Ahmad Bey. Cristofaro Falzon and Salvatore Borg, master Maltese masons, had been engaged to build an enclosure around the chapel, but relations with the French architect, Jourdain, deteriorated and a squabble broke out. After much wrangling, differences of opinion regarding employment contracts could not be solved locally and the matter was sent in 1842 to a court in Malta, for lack of alternatives.70 By the 1860s, the courts in Malta handled some criminal matters originating outside the islands involving members of the Maltese diaspora, particularly homicide cases. After Vincenzo Azzopardi murdered Caterina Vella in 1867 on the island of Djerba, he was speedily dispatched to Malta, where he was tried and executed. While we do not know the outcome of the Mansfields’ adoption woes or the quarrel at the chapel, the fact that cases were increasingly referred to tribunals outside of Tunisia because local justice was unable to resolve matters is significant. An already convoluted system of legal pluralism was becoming entangled in transnational jurisdictions.71
As the illustrations above suggest, protégé status was in practice quite murky. In conceptualizing how the system worked on the ground in daily life, it is more accurate to see consular protection as a continuum or range of options shot through at key intersections with holes, gaps, collisions, and dead ends rather than clearly delimited lines of legal authority. What kinds of coercive instruments did consular authorities have at their disposal for dealing with unruly or criminal protégés?
Punishments ranged from fines and/or imprisonment, to expulsion, banishment, or deportation, although the porous nature of Tunisia’s water frontiers, and the number of small boats moving between the islands and African coast, meant that physical exile was not an effective measure. The issue of prisons raises the important question of incarceration for expatriate nonsubjects, which has attracted no scholarly attention. In the early nineteenth century, few if any of the consulates had prisons as such, although consulates held persons accused of nonviolent crimes—petty thievery or nonpayment of debts—in short-term confinement. Some foreign consulates eventually established detention facilities, although this did not preclude looking to Tunisian penal authorities for assistance. And as seen in the case of Nicola, the drunken solider, ships served as temporary places of incarceration for those awaiting transportation elsewhere.
Tunisian facilities had existed for centuries, although the state penal reform of 1860 and Khayr al-Din’s prison reforms of the 1870s modernized the system in accordance with European norms.72 The main centers of incarceration before the 1870s were the zandala (or zindala) at the Bardo; the karraka in La Goulette; and a prison in the madina’s Qasba district; later the police prison, the Dabtiya, was added. Originally a bagnio, the karraka had been transformed into a penitentiary for common-law prisoners condemned to forced labor. Chained in pairs with leg irons, inmates cleaned the streets of La Goulette or worked in the port. While the tasks were not terribly demanding, prison conditions—food, housing, and so forth—were deplorable. At times, a hundred men shared a single, large room; daily rations consisted of a bit of olive oil and several pieces of bread.73
When the need arose, the British consulate rented incarceration space in La Goulette from the Tunisian government, paying per head for each prisoner, the vast majority Maltese. There is mention of this practice in the sources from the late 1820s on; for example, in 1828 “two Maltese inebriated had a dispute in the streets with a Moor.” This conduct landed them in a Tunisian prison where they “remained confined until the disturbance passed away.”74 In 1850, a fairly typical year, there were nine Maltese males incarcerated in the karraka for which the consul paid “143 piasters or 5 pounds sterling, 12 shillings and six pence” for the entire year.75 Over a decade later, during the 1860s, another prison housed British prisoners in miserable conditions alongside convicted Tunisians, until pressure was brought to bear to separate the inmates according to nationality.76 Incarceration served not only punitive functions but also social and political goals—to allow tempers to cool as memory of some egregious incident subsided, to get troublemakers off the streets, or to demonstrate to other consuls or the Tunisian government that a crime, infraction, misdeed, or moral breach was taken seriously. For certain offenses, bail could be posted if family or friends could come up with the money needed. Tavern keepers, who had ready cash on hand, frequently offered security for the accused so that they could be freed until trial, although this would clearly favor the better off.77 But prisons served other purposes.
Harmful speech, slander, and malediction were considered perilous crimes because they provoked street fighting, which could quickly escalate, getting out of hand. A special category of injurious speech—blasphemy of Islam—carried the ultimate penalty, death, although the status of an alleged offender often determined the outcome. One fall evening in 1851, Vassali, a Maltese, and Lieutenant Romain, a former French officer who had probably fled Algerian battlefields for Tunisia, were returning from the port to town when they got into a verbal brawl with beylical guards at the state tobacco warehouse. Since it was dark, the guards probably suspected that the men intended to make off with some tobacco, much favored by smugglers, so they ordered Vassali and Romain to quit the premises. The Maltese excelled in the art of polyglot invective and so Vassali “made some observations in Arabic to the bey’s officials [and] one of them fired with a gun upon the two and they were obliged to flee the scene and take a long detour in order to regain Tunis.”78 This is a fairly typical story found throughout the periods studied here, although its ending was happier than most such incidents, which frequently erupted in collective violence and physical harm. Curses landed people in jail where prison time defused—or so it was hoped—the social antagonisms created by public insults, usually to male honor.
Maledicta and vendetta were intimately intertwined; the fact that vendettas endured for years among the population of Tunis indicates the stability of an unstable population—much given to coming and going—since the memory of an offense experienced by a single community was transmitted over generations. For this reason, women accused of slanderous speech were rebuked by the British consul and instructed to hold their tongues because malicious gossip had a way of spiraling out of control, although it should be remembered that gossip was often defined as a female transgression. The daily logbook noted that “a dispute took place between a Maltese woman and the son of Busatilli, the Maltese, in consequence of some slanderous expressions used by the latter, the parties were reprimanded and recommended to live quietly.” Again in 1830, it was tersely observed that “a dispute arose between two Maltese women when they were recommended to live more peacefully and as good neighbors.”79 Insults, no matter how petty, were experienced collectively and the keepers of the peace feared vendetta—which explains the rapidity with which consuls or beylical authorities intervened in seemingly petty personal matters. If moral persuasion or a short prison sentence failed to produce the desired result—the calming of clan or communal passions—expulsion was employed as a measure to avoid decades of urban violence triggered by vendetta. Indeed, a key component in the decision-making process regarding both imprisonment and transportation was the potential for a vendetta that, like family property, was inherited.
On All Saints’ Day 1853, Joseph Balloti, a Roman subject and French protégé, was implicated in a murder committed by a Sardinian, Mugnaini, who killed a fellow subject, Agostino Livolsi. Depositions from three Sardinian witnesses, together with Balloti’s interrogation, proved his innocence. Balloti had been incarcerated for twenty days until this finding, and at first the French consul deemed this adequate punishment for his role in the unfolding of events, which began as violent verbal sparring and ended in tragedy. Yet serving time brought neither liberty nor a wrong expunged because French law admitted double punition, so the consul decided that, “desiring all the same to avoid any new conflict between this individual [Balloti] and the family of the murdered victim, by prudence I sent him off on a ship.”80 Expulsion not only functioned as a substitute for imprisonment or as another kind of punishment but was the preferred solution because it was cheaper, faster, and forestalled—or merely delayed—future difficulties. One wonders if the hapless Balloti simply reappeared later on another ship.
Nevertheless, the fear of vendettas was surely manipulated by consular or imperial authorities for political purposes, revealing social prejudices. The British government justified its rule over the Ionian Islands in part due to the high level of “male interpersonal violence, exemplified by the ritualized knife duel so favored by Ionian plebians.”81
In 1835, Thomas Reade noted, “The conduct of the Maltese I am sorry to say continues to be very bad . . . whenever [it] has been fully and fairly proved to me, that Maltese have committed depredations, I have always sent them away, so that the Bey can not say that their conduct has been entirely overlooked. At this moment, I am under the necessity of sending back eight who have been convicted of having broken open a British merchant’s store and robbed property to a considerable amount, some of which however has been recovered.”82 For centuries, states looked to the Mediterranean as a maritime dumping ground and/or a vast makeshift prison for their unwelcome “foreigners,” however defined by law or practice, or for punishing subjects by physical removal. Banishment, expulsion, deportation, and repatriation represented variant expressions of seaborne internment, and hopefully permanent exclusion, from a particular territory. But expulsion and repatriation were not equivalent, since expelling an undesirable did not necessarily result in forced return to the country of origin. The Husaynids routinely issued expulsion orders to purge the realm of undesirable subjects, above all, rebellious retainers. In 1837, Mustafa Bey decreed the exile of the disgraced courtier Qara Muhammad, who was imprisoned until a ship could carry him away to Egypt. Others were sent off to Istanbul.83
This appears to have been common practice; moreover, the traffic in exiles between Tunis and other Ottoman territories was two-way. A Tunisian delegation returned from the Porte in 1835 with a lavish decoration (nishan) for the new enthroned ruler, Mustafa Bey. But that was not all that delegation brought back from the heart of the empire; the sultan demanded that the Husaynids welcome one hundred individuals whose crimes warranted banishment from Istanbul. With an Ottoman warship in La Goulette, the ruler could scarcely refuse. However, after a few days, the exiled men pleaded for release, which the bey obliged by boarding them on ships willing to take them anywhere—so long as it was out of Tunisia.84
If one of the political services that the Porte expected from Tunis was to relieve the eastern reaches of the empire of unwanted persons, the beys used Egypt and Tripolitania in the same way that European states looked to North Africa as a social poubelle. The British consul contacted the Bardo in 1829 about an “Algerine Turk,” who after an assassination attempt upon a Maltese protégé named Sorio had been sent to a Tunisian prison. Subsequently, Reade spied the Turk “at liberty in the market place” and demanded that the ruler either incarcerate him once more or hand him over to the local representative of the dey of Algiers. Instead, Husayn Bey took the easy way out—he ordered the Turk transported on a vessel bound for Alexandria.85
What about expulsions of foreign nationals that violated treaties and/or customary practices? In 1836, Mustafa Bey touched off an international incident when he expelled an entire community from his realm in December 1836, precipitating the boat-people crisis: “I am under the painful necessity to reporting to your lordship that HH [His Highness] the Bey has ordered from this Regency the whole of the Maltese population.”86 Genial by nature, Mustafa Bey’s patience had been severely tried by years of mounting turmoil and violent crimes that street rumors blamed on the Maltese. Christmas of 1836 proved an especially tumultuous season. During the evening of December 27, a gang of Maltese broke into a Sicilian household and killed the master’s son in revenge for a homicide the previous day:
[The Sicilian had] murdered a Maltese, and wounded another in a most dangerous manner, so much so that his life is despaired on, in one of the public streets without any reason whatever; and seeing that he was not arrested, but allowed to be concealed in his father’s house [which] raised the lower class of Maltese to such a pitch of excitement, that they thus took the law into their own hands. They did not molest any other person, not even any of the Family [of the murdered Sicilian] but were determined to have revenge for the murder of their fellow countrymen, who was a universal favorite and greatly beloved of them.87
Had the Neapolitan consul arrested his protégé more quickly, the uproar would not have occurred, or so the British consul reasoned. This was too much. On December 28, 1836, the ruler gave the entire Maltese community three days to pack up and leave for good. As the aggrieved bey explained: “You must be aware of the insurrection of the Maltese in Tunis and how they have committed disorders and assassinations as if on a field of battle . . . to the point of creating turmoil in the city and these disorders have so shaken the inhabitants that they despair for the security of their persons and property . . . the Maltese arrive [in Tunis] without work or profession.”88
For months that winter, the affair dragged on. Ships bearing Maltese passengers were not allowed to disembark them in La Goulette during January 1837, but later warships from Malta arrived to reinforce British insistence that expulsion violated the Anglo-Tunisian Treaty of 1751. Gunboat diplomacy forced the bey to partially relent by decreeing that only those Maltese without proven occupation or accused of crimes should be forcibly removed.89 Finally, under immense pressure, Mustafa Bey rescinded the expulsion order after the British ambassador to the Porte complained to the grand vizier in Istanbul, who sent a letter to Tunis warning that “English merchants and subjects who are residing in Tunis must be protected and well treated.”90 As the sultan pointedly reminded the Husaynid prince, Istanbul regarded him as a subordinate, and the Capitulations trumped local justice. If street violence and vengeance had led to the expulsion order, international badgering blocked the removal of a population, many of whom were recent immigrants. This spared British officials the expense and bother of repatriating thousands to the already demographically saturated Maltese islands; more importantly, Mustafa Bey’s humiliating treatment constituted a public pronouncement that no Muslim state could unilaterally expel European protected subjects or violate treaties. And the affair produced a rare show of amity between the French and British consuls, since the same fate might befall the increasingly numerous French Algerian subjects in the country.
Thus far we have mainly considered cases in which the sultans and beys banished their own subjects or fellow Muslims—in addition to the rare instance of a ruler attempting to rid the state of unwanted British protégés. What about the European consulates? Since at least the seventeenth century, expulsion figured in legal acts governing French nationals residing in Tunisia. Normally, the process took place in stages: attempts at moral persuasion, consultation, and, if all else failed, an administrative order by the country’s elected head decreeing expulsion. Prior to the nineteenth century, the largely bourgeois members of the French nation were threatened with expulsion for three violations of ancien régime mercantilist legislation: contracting marriages without authorization, trading freely, and overstaying visas or continuing to reside in Tunisia beyond the time allotted. Those who flouted the rules were most often merchants “who had contracted close relations with indigenous notables” after spending many years in the country; they invariably pleaded that they could not leave Tunis until outstanding debts had been recovered or obligations paid off.91 To avoid expulsion, which theoretically required immediate return to France, some acquired Husaynid protection, while others placed themselves under the jurisdiction of other European nations. These were precisely the kind of maneuvers that blurred lines of jurisdiction and belonging, thereby increasing the tangle of legal pluralism. Since the Maltese were the most numerous community during the early decades of the nineteenth century, not surprisingly they were subjected to expulsion most frequently.
In 1833, Reade noted that “a Maltese killed a Moor, and was immediately arrested by the Bey’s authorities and carried to the prison at the Bardo. This circumstance created an amazing sensation in the Place and I have experienced an infinite deal of trouble and anxiety to get him [the Maltese] delivered to me. I embarked him immediately for Malta.”92 In the same period, two “Moors” were murdered on the highway by Neapolitans, who were arrested, delivered up to their consul, and expelled—to where is unknown. And the practice continued until the Protectorate, as correspondence exchanged between the Tunisian government and various consuls demonstrates. However, deportation and repatriation to country of origin encountered obstacles if national status was contested; even if a miscreant’s jurisdiction was unambiguous, funds to pay for ship transportation were frequently lacking. Women’s expulsion and repatriation was particularly delicate because consuls took it upon themselves to arrange for supervisory bodies or institutions—convents, families, and so on—to guarantee morality once the woman had reached her country of origin. This appears to have been standard practice, since it transpired in other North African port cities. In 1858 the British consul in Algiers reported that “Mary Gatt, the wife of a Maltese, was this day forwarded to the care of Her M consul at Marseilles to be forwarded to Malta.”93 However, the physical removal of delinquent protégés or nationals was not only limited by available resources but also by the local play of politics at any given moment. For women accused of sexual misconduct whose presence proved an embarrassment or worse, moral persuasion was the preferred course of action for both the consuls and the Husaynid state, since it allowed officials to quietly send off females who had defied patriarchal authority.94 The same situation obtained across the border.
Colonial officials in Algeria became increasingly intolerant of vagrants, indigents, or others who might burden the country’s inadequate social welfare and penal systems; some Tunisian subjects ended up in colonial institutions. In 1846 Mahmud ibn Shaqru was forcibly expelled from Bône because he was judged insane. In the words of the officer issuing the order: “I inform you that by the boat that is carrying this missive I have deported Mahmoud ben Chaqru [sic], a Tunisian subject, whose state of fou furieux [violent insanity] forced me to shut him up in the prisons of Bône. I ask that this poor unfortunate man be treated with the kind of consideration that his unhappy state warrants.”95 What is interesting here is that Mahmud was able to establish that he was a subject of the bey—despite his state of madness. Finally, French colonial authorities routinely expelled, or refused to allow back into Algeria, a wide range of Europeans, many of whom later turned up in Tunisia.
Various types of shoveling out were universal methods of internal moral cleansing as well as border controls that increased during the century under the weight of heightened population displacements. Yet expulsion varied considerably in time, place, and with social class; those without adequate fortune or “vagabonds” were the most likely to be sent packing. Since poverty was criminalized in this period, whole families resident in Tunisia lived under the threat of forcible removal if they proved without the means to lead decent lives. But there were other reasons for being forced out.
While women appealed to their own religious or consular courts, and Husaynid subjects sought redress from the beys, they did so less frequently than men, which made alternative mechanisms more important.96 Consular justice varied according to age, social class, nationality, and above all, gender; in consequence, opportunities for manipulating the system of protections as well as sanctions or punishment varied considerably. As legal minors, women were presumed under the same national or imperial protection as husbands or male heads of household, although divorce, abandonment, and widowhood complicated matters. Indeed, the single most contentious issue for European expatriates in Ottoman lands was the issue of female residence. Widows who elected to remain in port cities after their husbands’ death had long been singled out as especially problematic, although this changed as the immigrant population of Tunis grew.97 Among the most commonly employed strategies for getting a better deal, avoiding retribution, or merely improving one’s situation was switching protection, an option available principally to men.
Although it held enormous repercussions potentially reaching far beyond the borders of Tunisia, one avenue for changing status was open to expatriate women—conversion from Christianity to Islam, which represented “a ritualized form of border crossing.”98 Yet it was much more. Conversion was tantamount to migration, a sort of physical displacement—leaving home in the legal and sociocultural sense. Converts also normally abandoned their birth communities. Conversion triggered the play of jurisdictional forces among Islamic, beylical, and consular authorities. It brought in the shari’a court since, according to Islamic law, the qadi had to provide written documentation that the conversion was entered into freely; the term employed was ‘itinaq (from ‘anaqa, “to embrace”) or dakhala, “to enter” into Islam. In some cases, a convert to Islam changed his or her mind, despite the severe penalty for abandoning Islam—death—at least theoretically; however, in these cases, the beys and consuls often worked out covert arrangements for sending the convert-apostate outside of the county.99 A highly complex issue, conversion must be thoroughly contextualized and historicized and cannot be fully explored here; rather it is analyzed as a form of border crossing open to some women for changing status and perhaps improving their life options.100
The scanty record on conversion assumes without question that embracing Islam did not entail an interior, spiritual transformation or commitment; there are resonances with earlier captivity narratives fixated on renegades “turning Turk” as well as with the nineteenth-century Orientalist discourse on harims. And conversion was gendered. For European men, for example, deserters from the French African army who fled to Tunisian court, embracing Islam was interpreted as a situational response to unfavorable circumstances or as a bid for promotion or both, although by then conversion was not a requisite for holding military or political office.101
In the case of female converts, it is presumed that the women were young, ignorant, orphans, or from socially dispossessed groups seeking advancement (or all of the above) or were members of elite harims—concubines, servants, or slaves whose masters had “pressured them to convert,” although under Islamic law Muslim men may contract valid marriages with non-Muslim women.102 This may well have been the case, but the documents are silent about other motivations. Scrutiny of the record shows that conversion sometimes began with a “crime of the heart,” love with the wrong person, someone from “the other side” of the religious divide, which was universally seen as a serious moral lapse. Since the poorer communities of Tunis were not necessarily segregated but occupied the same city space, often the same housing units, the temptation to “fall for” a neighbor or a tradesman in the quarter’s market who professed another religion was ever present. As importantly, conversion offered escape from an unhappy marriage, since divorce was impossible for Catholics and extremely difficult for other Christian women. Thus, it is hardly surprising that “the fear of conversion to Islam haunted the Catholic hierarchy in Tunis.”103
For women in particular, “becoming Muslim” cast a family crisis or troubled union into the public arena, unleashing communal opprobrium that could spark sectarianism and violence. Abandoning the “faith of one’s fathers” had a dangerously elevated performative value, not unlike a sensational homicide involving parties under different jurisdictions. And if, or when, a conversion developed into a citywide drama (which not all did), other forces—local political struggles or international diplomacy—could well determine the outcome. If violations of sexual norms tend to be occluded in the sources, women whose rebellions assumed the form of conversion were doubly excised from the record. While most documentation comes from the late nineteenth century, there is fragmentary evidence for earlier decades.
Some Christian women converted to Islam to escape cruel spouses or loveless marriages. In July 1830 a ship arrived from Smyrna with the wife of an Ionian Greek merchant, Demetri Apostolate, who resided in Tunis under British protection. When Apostolate went down to the port to claim his wife by producing the required disembarkation permit, he was informed by port authorities that she had been “sold as a Musulwoman,” apparently to the local Algerian wakil. Apostolate immediately stormed off to the British consulate, demanding that officials intercede with the bey so that he could “regain possession of her.” After much diplomatic negotiation, consular officials went to the Bardo to procure the Greek woman and restore her to the husband. However, an unpleasant surprise awaited them. “The Woman was at length forthcoming, and the Bey afforded every satisfaction, still the woman declared it was of her own free will she turned a Musulwoman and that she would know no other religion, and from her husband having deserted and ill-treated her, she would remain where she was [in Tunis] and would not return either to him or to her parents [back in Greece].”104
There was little the consul could (or wanted to) do and so, “as was the custom, he legalized the certificate of the Ionian Greek [Apostolate] stating the fact that his wife having voluntarily abandoned him, and turned Musulman.”105 For the Greek woman, conversion had terminated a marriage marred by maltreatment and, as importantly, enabled her to avoid forcible repatriation to her homeland where she would have been placed under the supervision of her birth family or in-laws. Moreover, her status as the spouse of the Algerian representative to Tunis spared her any further harassment by her ex-husband or his community. British willingness to accede to the Greek woman’s wishes without prolonged diplomatic wrangling beckons us to consider the play of transnational forces at work in the summer of 1830. At that moment, the French invasion of Algiers was underway, unleashing a political firestorm around the Mediterranean. Since British officials in Tunis sought to wring maximum diplomatic benefit from the Husaynid government in this climate, they apparently decided not to intervene further.
Another conversion eight years later posed more complex problems. In 1838, a fifteen-year-old Maltese girl, Grazia Abela, abandoned her husband for a Tunisian Muslim and publicly made known that she had converted to Islam. Whether she did so out of passion for her new love or to escape an unhappy marriage or both is uncertain. The Maltese community reacted violently to Grazia’s “betrayal” and pressured the British consulate to make formal demands to Ahmad Bey to hand her over to her husband. The next year, however, she upped the ante by claiming that conversion to Islam made her a subject of the bey; she was no longer under British protection. Grazia’s motives for this strategic move are unstated in the record, which is entirely from the hand of consular officials. Clearly, she desired a total break from her husband and community. But significantly, she seems to have grasped how the jurisdictional game was played. At first, the bey demurred to intervene and force Grazia to abandon her Tunisian lover, but the ruler eventually caved in because Great Britain represented a valued ally against French and Ottoman encroachments in this critical moment in trans-Mediterranean politics. Grazia later had a change of heart—how or why is unknown—and sought to undo the damage, but it was too late. Explanations simply claimed that the young woman “regretted her conversion.” Yet consular authorities did not reunite her with her Maltese husband still in Tunis—to whom they maintained she was “attached through the in-dissolvable bonds of marriage”—but rather forcibly removed her to Malta.106
These incidents, and others, triggered a flurry of correspondence between British officials in Tunis and London from 1839 until well into the 1860s. Crown lawyers submitted lengthy briefs on how conversion altered protection, legal status, and political allegiance as similar cases arose. It was determined that “a married woman whose husband still adheres to his allegiance to the British Crown, and continues to be a Christian, cannot by the change of her own religion, put off her allegiance, or exempt herself from the same liability to the jurisdiction of the British Consul to which her husband remains subject.” Yet it was also decided that “Her Majesty’s Consul at Tunis is not armed with any authority to prevent British subjects, whether male or female, from embracing the Mahometan or any other religion they may think proper to adopt.”107
A conversion in 1865 by a Maltese widow, Maria Callus, was another “crime of the heart”—she had fallen in love with, and apparently wed, a Tunisian subject; and she converted to Islam, which once again was not a prerequisite for valid marriage, despite what the British consul claimed. Here the record is a bit meatier because new legal uncertainties arose over guardianship of minors. In November 1865, Richard Wood wrote directly to the bey to inform him that “a certain woman by the name of Maria Callus, a British subject, and widow of Paolo Sapian, also a British subject, has become a Mohammedan in order to marry a Tunisian subject. Being of age and consequently free to dispose of her person, her Majesty’s consulate general does not pretend to interfere in her affairs. She has however four children, three girls and one boy by her deceased husband Paolo Sapian, who being minors are under the tutorship of their Uncle.”108
Despite claims to the contrary, the British consulate brazenly interfered in family life by claiming legal tutorship over Maria’s minor children—three girls and a boy—who, after her marriage to the unnamed Tunisian, resided together with their mother and stepfather in the newly formed conjugal unit. One justification offered was that the uncle-tutor lived in Malta—not terribly distant by this time—and not Tunisia. But the fundamental pretext marshaled was that “in consequence of the immorality of her conduct previous to her second marriage” she had forfeited her maternal rights; Maria’s children became wards of British officials in Tunis. From the record, we can only speculate regarding what “immorality” entailed—cohabitation with her Muslim lover-then-husband prior to marriage? Or was this merely a slur to punish Maria for “going over to the other side”?
What is telling in the 1865 case is that Wood directly implicated Muhammad al-Sadiq Bey from the start by insisting that the ruler send the superintendent of police to seize the children. Moreover, the consul assumed legal guardianship of the children because they were the offspring of a woman judged immoral. Was the decision to remove the children taken to forestall the social, moral, and political embarrassment posed by a “mixed” family? We can only imagine the tearful scene at Maria’s new household when the police and British dragoman came to take away her children. The story of Maria Callus encapsulates the dilemma of women, particularly of widows, who as “women without men” were deemed the most disruptive when they resided away from “home,” where the social controls of extended kin, church, and state were attenuated. As Laura Tabili so aptly put it, “empire is the enemy of love.”109
Thus far we have focused mainly upon Christian Mediterranean groups whose passage through, or settlement in, Tunisia generated policing and jurisdictional dilemmas. But movements out of Algeria—Muslims and Jews as well as European criminals, forced laborers, soldiers, and law-abiding folks—created enormous contention and long drawn-out negotiations over politicolegal identity. Algerian Muslim border crossers who claimed France’s protection came to be regarded as deserters, if not apostates, from their own religious and cultural community.110 This state of affairs persisted well into the Protectorate.
Léon Roches, the French consul recently stationed in Tunis, received a letter in 1858 from the vice-consul in Sousse requesting instructions regarding a certain Ahmad ibn Ahmad, whose situation appeared more complicated than most. Allegedly a former soldier in the eighth regiment of the tirailleurs indigènes, Ahmad had settled near Sousse sometime prior to 1858. Local authorities had decided that, as a Muslim, he was a subject and they levied a hefty tax of thirty-six piasters on him. Hoping to avoid taxation by claiming French protection, Ahmad contacted the vice-consul, who proved decidedly less than helpful: “Since I have no information on this indigène who could be Algerian but who also could be Tunisian, and even from the village in which he lives now . . . [but] even if he had served in the [African] army, I can not say whether he is a French subject.” Instead of a tax break, Ahmad, much to his chagrin, was ordered immediately to Tunis to regularize his situation by furnishing “all necessary papers to justify his protégé status.”111
Some years later, Hajj ‘Ali ibn Sharuf, originally from the Suf oases in southeastern Algeria, died in Tunis. In accordance with Islamic law, the administrator of the bayt al-mal, assuming the deceased was a Tunisian subject without heirs, went to his household in 1873 to inventory the property. Up stepped a fellow countryman, Shaykh al-Qasim, the Algerian wakil (overseer), who declared to the French consul that the deceased came from Algeria.112 In this case, a Muslim whose honorific indicated that he had performed the hajj had settled in Tunisia, where he ended his days, and this provoked a property dispute. In the earlier affair, Ahmad claimed to have served under France’s flag but only sought protection after vexations arose—which surely invited opprobrium from other Muslims. Ahmad, the soldier, and Hajj ‘Ali epitomized the complex trajectories of those Algerians who left home for a new life.
There had always been a large Algerian community in Tunisia, many of them laborers from the oases. And Tunisians had ventured west, especially to Constantine, for trade, opportunity, marriage, or tax evasion; after 1830, some beylical subjects even enrolled in the French colonial army. Generally, French protection came into play with conflicts over debts, taxes, property, or inheritance or during criminal proceedings. Theoretically, the French consulate in Tunis was charged with protecting Algerian interests, providing justice, and overseeing matters related to civil status, which could mean ensuring that Islamic law was enforced. As in Algeria, cases governing marriage, divorce, and child custody or support were under local Maliki courts. For the Husaynid state, the Algerians engendered intractable political and moral dilemmas, tied to religion, and the imperative to protect fellow Muslims from persecution. The government became increasingly exasperated by their presence, which offered limitless opportunities for French interventions, often after a minor row got out of hand. Algerians in post-1830 Tunisia (or Morocco) faced choices that amounted to a Faustian bargain. Many Muslims seeking refuge in Tunisia did not claim French protégé status because it was interpreted negatively. Yet by refusing, or simply not claiming, France’s protection, they became beylical subjects by default, subject to taxation and local justice, an unappealing prospect. Similar patterns can be observed in nineteenth-century Morocco, which welcomed numerous exiles, dissidents, or refugees, as did the eastern Ottoman Empire, most notably Greater Syria.113
In his 1847 report, Lieutenant Prax, a naval officer, amateur ethnographer of Saint-Simonian persuasions, and probably a spy, completed a detailed study of Algerians in Tunisia during an extended stay in the capital. He found that merchants, for the most part, considered themselves beylical subjects by virtue of religion. However, artisans and laborers fell under two jurisdictions, beylical and French. Prax’s account contains valuable information regarding the older office of the amin in the post-1830 order: “Those Algerians under beylical protection are administered by an amin, al-Hajj Muhammad of Algiers [who] left Algiers for Tunis in 1840 after waiting 10 years for the French government in Algiers to indemnify him for buildings [belonging to him] destroyed to make way for public works . . . an Algerian who is a subject of the bey can only return to Algeria with the permission of the amin who procures a teskéré [permit] from the bey allowing the Algerian to return home.”114
The Husaynid state had long controlled movements into and out of Tunisia, particularly by sea, requiring departing subjects and nonsubjects to obtain certificates attesting to freedom from debt. However, the practice of delivering permits to Algerians returning to their homeland appears to have been an innovation directly linked to increasing settlement. (Although, it may have been that French officials insisted at some point that the beys impose this regulation.) While many Algerians claimed beylical jurisdiction, “the most numerous were under French protection,” at least according to Prax. “The Algerian who has a teskéré,” wrote Prax, “presents himself to the French consulate in Tunis and the chancellery delivers to him a passport which costs 8 francs.”115
After escaping colonial rule through emigration, some Muslims and Jews in Tunis placed themselves more or less willingly under French protection, although the rules governing protégé status changed constantly in response to fresh arrivals and changes in the legal status of Algeria and Algerians, particularly the 1848 legislation making the colony an administrative part of France, the 1859 decree, the 1863 sénatus-consulte, and the 1870 Crémieux law conferring citizenship upon Algerian Jews, which raised new jurisdictional issues. As more and more people poured over the Tunisia-Algeria border, the task of French consular officials became complicated, for it was not easy to determine who could legitimately claim protection. Two main periods of experimentation can be detected: trial and error in both Tunisia and Algeria between 1830 and about 1850; and subsequent efforts to stabilize Algerian expatriate status by regularizing available instruments for determining identity in an era when migratory populations and processes were increasingly heterogeneous and thus resistant to uniformity.
One of the first mentions of a carte de sûreté for Algerians residing in Tunisia came in 1838 when French merchants in Tunis complained to the Chambre de Commerce in Marseilles about the fact that “200 blows of the bastinado were inflicted upon an Algerian by Tunisian authorities, despite the fact that the Algerian had been issued a carte de sûreté by the French consulate.”116 While the reasons for the beating were unspecified, they were most likely tied to tax evasion. By directly contacting Marseilles, the merchants went around the local French consul, suggesting to authorities in France that he was incompetent. And bringing the incident to the attention of the Chambre de Commerce internationalized the plight of Algerian expatriates. Most intriguing is the carte de sûreté itself: Was this more or less the same instrument that had evolved into an internal passport in France by this period? Or was it a French adaptation of the beylical teskéré, which had long existed and had been used for multiple purposes, including controlling the entry of foreign women into the country? Or was it a hybrid instrument—a combination of local Tunisian and consular procedures?
Algerians employed by the French consulate encountered hostile treatment as well. By 1855, Muhammad ibn Rabih, originally from Constantine, had resided in the Djerid oases for years as French vice-consul. Prior to leaving his country, he had obtained a French passport in Bône delivered on July 7, 1845; upon arrival in Tunis he deposited his passport with the consulate in 1846 in exchange for a carte de sûreté. For years, Rabih was harassed by local officials, perhaps because of rumors that he operated as a French spy; he even made the long journey to Tunis at some point to lodge a formal complaint. By 1855, his situation had become untenable; the qa’id had arrested him, seized his property, and dispatched him to the capital for imprisonment. Despite the consul’s insistence that Rabih was a protégé, as confirmed by a passport and other papers, the bey maintained that he was a “Tunisian from the Jarid [Djerid]” and thus his subject.117 This was not a propitious moment to argue the case of an (alleged) protégé, even one who had long worked for France. Ahmad Bey had just died in May 1855, and the war in the Crimea had not gone well for the Tunisian military contingent sent to aid the sultan.
Léon Roches, who had served in Algeria for years, arrived in July 1855 to assume the office of French consul general in Tunis. It was no coincidence that Roches immediately introduced modifications. The year 1854 marked the first time that French authorities in Algeria intervened directly and massively in Islamic law by attempting to establish a unified legal system; in 1859 colonial courts assumed appellate jurisdiction for decisions rendered by Islamic tribunals.118 Roches sought to systematize the rules of the game by initiating a census of Algerians in Tunisia. All current as well as future protégés were to carry a carte de sûrté in Arabic, with the bearer’s name, place of birth, and the date of inscription in the registers of the consulate. Physical characteristics were also part of the identification process. Moreover, “any Algerians who remain more than three years absent from Algeria or from another piece of French territory will no longer be considered a French subject,” a rule that did not apply to those who had settled in Tunisia before 1855.119 The matter of enforcement must be raised, since neither the Husaynid state nor colonial state commanded the resources necessary to police maritime and land borders or mobile tribal populations.
Algerian Jews under French protection faced reprisals from local religious and/or beylical officials, particularly when political tensions between France and Tunisia erupted. In 1851 the vice-consul in Sfax alerted the consulate about “the violent and arbitrary arrest of an Algerian Jew living in Sfax named Chaloum Botbal; the Qadi of Sfax . . . arrested Botbal and subjected him to corporal punishment as well as detention.”120 Since Botbal was a recognized protégé, this gross violation called for intervention by the bey himself to make amends. The status of indigenous (i.e., Arab) Jews, whether residing in Algeria or elsewhere, was later resolved at least legally by the 1870 Crémieux decree, although Algerian Jews in Tunisia endured endless ambiguities, conflicts, and heartbreak well into the Protectorate. Marriages between Algerian and Tunisian Jews residing in Tunisia under different jurisdictions presented some of the most intractable of the post-1881 legal questions.121 (Not all Algerian Jews were mistreated; many emigrated to Tunisia to escape the viciously anti-Semitic European colons and colonial officials who initiated anti-Jewish riots in Algiers and elsewhere in 1897.)
Some cases involving Muslim protégés increasingly entangled French consular justice in Islamic jurisprudence governing personal status. “Deadbeat dads” behind on alimony and child support triggered proceedings in 1866 when a divorce dispute involving a Muslim, Hajj Sasi, born in Algeria but resident for sixteen years in Mahdiya, broke out. Hajj Sasi repudiated his Tunisian wife, who then brought a formal complaint against him with the qadi in Mahdiya “to obtain from her ex-husband money for her upkeep and her children. The public proceedings were quite stormy. “After a heated argument between the two ex-spouses, it was decided by the Qadi and agreed upon by the two parties to the conflict in the presence of our [i.e., French] janissary and witnesses—that our protégé, Sasi, was to pay 25 piasters per month to his abandoned family; he also rendered a 10 piaster advance. This affair took place publicly and above all, established the nationality [nationalité] of our subject [administré] who, satisfied, returned to his village, being advised to keep his engagement.”122 We do not know if Hajj Sasi adhered to his obligations or not. In many cases like this, the Algerians hailed from oases whose populations had a long tradition of seeking work or pursuing religious studies in Tunisia. Of paramount significance is the use of the term nationalité, then the object of intense legal and legislative debate in France.123
One morning in the spring of 1874, Zaynab, a female singer and head of a musical troupe with six other women that performed for wedding parties lasting well into the night, failed to return to her home in Munastir. Suspicion at once fell upon her ex-spouse, Hajj Muhammad ibn ‘Ali Sca, who claimed French protection by virtue of a passport delivered in Bône in 1868 and stamped by the consulate in Tunis in 1869. According to Hajj Muhammad, he had been a sailor but subsequently settled in Munastir to work as an olive oil merchant. At some point between 1869 and 1874, he married and divorced Zaynab, who had a daughter, Amina, by a previous marriage. Zaynab’s mysterious disappearance and the resulting investigation raised doubts about his story. Amina initiated proceedings against her ex-stepfather with the qadi of Munastir; her long deposition was recorded (in Arabic) by two notaries and included the names of the female musicians who performed with the missing Zaynab.
In the document, admitted as evidence in the consular inquiry, Amina accused Hajj Muhammad of seizing her mother’s possessions prior to the divorce, murdering her as she returned home late that night, and concealing the body. Amina also implicated Hajj Muhammad’s younger brother, al-Qasim, who was considered by local society as a Tunisian subject native to Munastir. Both men were imprisoned while the investigation was pursued. While Hajj Muhammad maintained that he was innocent and the target of a “smear campaign,” the town’s inhabitants declared that he was “capable of doing what he had been accused of,” and, like his brother, was originally from Munastir, not Algeria.124
Here our documentary trail runs dry; the outcome remains a matter of speculation. Nevertheless, the questions raised are important. Clearly Amina’s mother abruptly went missing one night. As a wedding performer, Zaynab must have been well known and probably well loved, although female musicians often bore the social stigma of their trade. Yet public opinion made no mention of this but rather insisted that Hajj Muhammad’s character was infamous enough for him to have committed a violent deed. Foreign protection held huge fiscal advantages for those in the olive oil trade, yet openly claiming it thoroughly antagonized fellow Muslims—until accusations of murder made such a move expedient. Was Zaynab’s ex-husband indeed a murderer or was he the victim of character assassination as he claimed? Was Hajj Muhammad really a French subject, and what about his brother? If Muhammad’s papers were forged, what does this tell us about the social response to bureaucratic efforts to fix identity, determine jurisdictions, and bring justice to mobile populations?
With each regulation, enterprising individuals found ways to contravene or manipulate the rapidly shifting rules of the game to advantage, at least momentarily, which prompted additional measures to count, catalogue, and stabilize people in motion. If these steps appeared to clarify the legal situation, at least in the administrative mind, false passports and papers circulated widely as immigration to Tunisia expanded, as shown by this 1860 missive from the French consul: “I received your letter in which you asked to know if Raphael Cato, born in Tunis, but carrying an Algerian passport, was considered a French subject. While this merchant is carrying an Algerian passport, he has never been considered such by the French consulate [in Tunis].”125 A mere five years before the Protectorate, yet another attempt was made in 1876 to regularize the legal status of Algerian immigrants. Entitled “Proposed Convention to Grant Tunisian Naturalization to Algerian Immigrants,” the plan came to naught. It was too complicated and perhaps too late.126
By the eve of colonialism, Algerian expatriates had become the target of collective social resentment, as is true of refugee populations worldwide today. Antipathy was expressed in multiple venues and ways. The European hospital established in 1868 admitted Europeans, Tunisians, and Algerians, although for the last two categories it is difficult at times to distinguish patients’ origins solely by names. But the Muslim hospital, al-Sadiqi (later renamed the Maristan ‘Aziza ‘Uthmana), near the Dar al-Bey, was quite another matter. Its statutes specifically excluded Algerians because they “were considered as traitors to their religion and the exclusionary clause barred them indirectly” by explicitly stating that admission was limited to “only poor sick people originally from Tunisia.”127 In view of the constant to and fro between the two countries both before and after 1830, what did “originally from Tunisia” mean? Nevertheless, a new definition of what it meant to be Tunisian was emerging out of the legal chaos created by mobilities.
Some things, however, could not be resolved by forum shopping, alternative legal remedies, novel forms of governance, or compromise and in the long-term proved to be turning points. The older legal culture with its tradition of shared, if disputed, procedures and habits, was progressively undermined by the waning political fortunes of the Husaynids and Ottoman Empire, more muscular treaty making by European powers, the standardization of diplomacy, and intensified immigration.
Run-of-the-mill disputes laid bare jurisdictional gaps or contradictions, offering golden opportunities to manipulate legal boundaries to personal advantage. Criminal cases, theoretically subject to the clearest or the least disputable treaty provisions, provoked the greatest controversies, since interconfessional murders or homicides unleashed passions that turned into high-profile struggles that mobilized communities and at times European states and the Porte. Several cases jolted traditional arrangements: the 1843 Paolo Xuereb double murder, and the 1857 Batto Sfez execution that ultimately led to the Tunisian version of the Tanzimat, the ‘Ahd al-Aman (Fundamental Pact), followed by the 1861 constitution and the largest revolt in Tunisia’s modern history.
For months, Tunis was spellbound by two brutal murders in December 1843; public sentiment became so frenzied that the ruler stationed his newly organized nizami army around the city. Most of the characters made an earlier appearance in chapter 5, on contraband, but this is how it all began. Together with two accomplices, Paolo Xuereb, recently arrived from Malta, killed a Tunisian, Yusuf ibn ‘Abdallah, serving as British dragoman, and a fellow Maltese, Savirio Galia, during a heated dispute over Xuereb’s smuggling activities. Ahmad Bey insisted on trying Xuereb for his subject’s murder under Tunisian law, which was permitted by treaty. The British consul was in agreement because he believed that justice for the victims could only be assured in a local court, not in Malta. Even if judges in Valletta would consider the case, uncertainties over admissible evidence impeded justice because the courts were not always “empowered to take cognizance [sic] of crime committed in this Regency by the admission of written evidence taken upon affidavit before the consul.”128 And London supported Thomas Reade’s position.
At first, the three men were held in the British consulate in Tunis, but by March 1844 they were delivered to beylical authorities for incarceration in the La Goulette prison, since street unrest had broken out in Tunis. The collective fury of the Maltese and other Europeans over the change in jurisdiction introduced a novelty into the city’s political culture. Pamphlets, broadsheets, and placards, mainly written in Italian, were circulated and pasted on walls, vilifying the British consul for placing the accused under local law. A virulent anti-Reade campaign was organized in Malta; the controversy soon involved all foreign consulates, particularly once arrangements for trial got underway in March 1844. The French consul played the religious card by claiming that, since the three men were Catholic and France represented the Holy See to Tunisia, they were under his protection; Pierre Gaspary noted that “two Maltese came to see me asking me to intercede on behalf of three Maltese who are in jail here in La Goulette prison and have been abandoned by the English consul to the justice of the bey; they have been condemned to death . . . they seek French justice by the fact that the three condemned men are Catholic.”129
By all standards, Tunisian legal authorities conducted the trial in a thorough and judicious manner. After months of consular infighting, protests, and shiploads of dispatches between London, Paris, Tunis, and Malta, on June 5, 1844, Paolo Xuereb was executed by strangulation, the customary sentence for murder. Nevertheless, Ahmad Bey granted a six-week stay of execution after the guilty verdict was rendered in a vain attempt to arrange for blood money as compensation instead of the death penalty, an offer rejected by the family. The murder, trial, and execution that roiled expatriate communities bring together the many facets of legal pluralism examined in this chapter: attempts to switch jurisdiction based upon religious affiliation; how beylical and European justice operated in tandem—if circumstances permitted; the potency of consular politics; and the weight of public opinion not only within Tunisia but also in the central Mediterranean corridor, which increasingly intersected with imperial projects in Europe. But most significantly, the pandemonium created by the Xuereb affair caused Husaynid rulers to resist pressures from Istanbul and the Great Powers to implement Tanzimat reforms, as they had the 1838 Anglo-Ottoman Commercial Convention, for a while.
From 1839 on, the Ottoman Empire embarked on a series of administrative, political, and legal reforms. The first Tanzimat decree of 1839—the imperial rescript, Hatt-i Sharif of Gülhane, which inaugurated the Tanzimat era (1839–1876)—reordered legal relations between the sultan’s diverse subjects, but Ahmad Bey politely but firmly refused to comply; a second set of decrees in 1856 expanded upon the earlier reforms. His successor finally acquiesced after France and Great Britain relentlessly badgered Muhammad Bey because of an unfortunate case of negligent homicide in 1857. This time the uproar was over a Tunisian Jewish subject, Batto Sfez, who had accidentally killed a Muslim child while driving his cart through the crowded streets of Tunis. In the quarrel that ensued, Sfez was charged with publicly blaspheming Islam, an act punishable by death. Condemned and executed, Sfez became a cause célèbre for Léon Roches and his British counterpart, Richard Wood, both of whom presented the ruler with directives for far-reaching judicial and economic changes. When Muhammad Bey agreed to only part of the demands, a squadron of French warships put in to La Goulette in August 1857.130
The 1857 Fundamental Pact proclaimed the civil and religious equality of all subjects, made a commitment in the future to institute criminal and commercial legal codes consonant with European codes, abolished state monopolies, and established mixed courts for cases involving Europeans and beylical subjects. However, Muhammad Bey died in 1859 before these provisions could be implemented. With a good deal of prodding from Roches, Muhammad al-Sadiq Bey promulgated a constitution, drawn up by Khayr al-Din and his circle in 1861; one of its most important provisions was the right of foreign property ownership. As in the Ottoman heartlands, the declaration of legal equality between resident Europeans and indigenous subjects was greeted with dismay by many expatriates, who saw local consular jurisdiction as a “better deal,” since it was more easily manipulated. In effect, European protégés desired that the older Capitulations be conjoined with some Tanzimat decrees to provide an even wider menu of legal remedies, options, and subterfuges. In the eyes of Muslim subjects, the proclamation of a constitution contradicted the cherished belief in the Quran as the sole source of law.131
As the Husaynid state’s political and financial fortunes plummeted during the early 1860s, the government made rapacious fiscal demands upon its subjects and contracted a disastrous usurious loan in 1863 from Parisian bankers. Increasingly, indigenous dragomen, vice-consuls, and other “native” staff sought consular protection, which varied in degree and meaning but contributed to the tangle of jurisdictions, a phenomenon present throughout the Ottoman Empire and also in the Moroccan state.132 In the spring of 1864, disquieting news reached Tunis about a tribal revolt in the border regions near Le Kef, led by a local figure, ‘Ali ibn Ghadaham, who assumed the title of “bey of the umma” and demanded an end to the 1861 constitution. The long revolt and its ferocious suppression by the beylical army created the perfect financial storm that culminated in state bankruptcy to various European lenders in 1868–1869 and the establishment of the International Finance Commission. It was only a matter of time. In April 1881, as warships shelled Bizerte and Tabarka, a French army invaded from Algeria on the flimsiest of pretexts and arrived before the Husaynid palace in the Bardo by May 1881.133 The constitution remained a dead letter.
While ‘Ali Bey (r. 1882–1901) and Paul Cambon, France’s first resident general, negotiated the terms of the La Marsa Convention that created the French Protectorate machinery during the spring of 1883, another international drama erupted in the same neighborhood. On the evening of March 11, a telegram was dispatched to the Ministry of War in Paris by a French officer stationed in the port: “This evening in La Goulette around 5:00, a drunken Italian came and urinated close to the guard house in front of the gate to the [French military] barracks. In accordance with rules, the guard ordered the man to retreat but instead, without any motive, he fell upon [the sentinel] beating him with his fists.” After arresting the Italian, the sentinel sought to imprison him but, at that very moment, the Italian vice-consul magically appeared. Snatching the prisoner, he cried out, “I am the Italian consul. This is my man; he doesn’t belong to you,” and conducted him to the consulate.134 The officer dutifully telegraphed Paris to inquire as to whether the Italian consul could legally be compelled to release the incontinent, drunken individual for imprisonment in La Goulette’s French gendarmerie; the Franco-Italian struggle over Tunisia was being transformed into a cold war lasting well into the twentieth century.
What long-term pattern can be teased out of our journey into order and disorder, justice and injustice, law and the lawless? In making sense of legal predicaments, such as those faced by Nicola Malinghoussy, the pope’s soldier, several things emerge. First, in that specific case, the café patrons knew who was under the protection of which Great Power—or should have been—since they first appealed to the French vice-consul. This was a reasonable course of action; until Italian unification, France claimed Romans as protégés, although this had changed by 1871. But the La Goulette folks seem to have been unaware and followed an older script. In effect, protégé status operated in parallel fashion to class or religion by providing a map for locating individuals and rights within the context of multiple, layered displacements—sociodemographic, political, and legal. As understood by actors on the ground at a particular moment, protection at times trumped conventional categories of difference, while being shaped by them. Never static, protection functioned as a common language—in a city of Babel—for sorting, identifying, facing unfamiliar demands, and making one’s way. For the vast majority of people, staking claims to one legal status or another demonstrates the instrumental nature of protection seeking as a means to an end. Interpreted from this vantage point, precolonial Tunisia underscores the need for more finely grained scholarly scrutiny of the floating and therefore contingent meanings for, and uses of, protection and protégé status over time and space.
The Tunisian case buttresses current scholarship that argues that the (alleged) inherent antagonisms dividing the Ottoman Empire and Muslim world from Europe are the product of selective memory—a denial of deep, abiding exchanges in many realms, including law.135 Here the notion of a local legal culture is fundamental because that culture was constructed by the accumulation of choices about justice rather than only rules about justice, a critical distinction.136 Local legal bodies and forums, together with the surrounding community, defined the permissible and impermissible and determined when and how to punish wrongdoers, whenever feasible. The growing cosmopolitanism of Tunis (and Alexandria, Beirut, and Istanbul, to name only a few) was both cause and consequence of the legal-political imbroglios unleashed by people on the move, who crossed borders as they called into existence new kinds of borders. The interconnections between legal pluralism and cosmopolitanism demand serious study because the latter represented something more than mere cultural and linguistic diversity, or the collective expressions of social difference that nevertheless allowed for living side by side, in a particular place. Whether some of these local ways of doing things were restricted to this particular African Mediterranean state and port city during the precolonial period is a comparative historical question worth posing.
Second, the endless stories of brawls—in streets, taverns, or cafés—begin to sound alike. The facts of a particular case, assembled by beylical and consular authorities, were inserted into a specific narrative envelope—in a manner reminiscent of “pardon tales”—and constitute a genre in terms of structure, sequence of events, and denouement. Local Tunisian and consular officials explained disorder by appeals to class—those guilty of disturbing the peace hailed from “the lower ranks,” and they triggered outbreaks of fitna (social discord). Religious differences, while invoked as explanatory devices, did not always play a major role. When foul-mouthed invective or aggression transformed a minor fracas into urban unrest or even international causes célèbres, other causative elements must be considered. Daily struggles for increasingly scarce resources like work and housing, and meta-events such as famine, disease, and rebellion, all strained communal relations.
Many accounts appear curiously apolitical, although settlement in Tunis made it a highly politicized environment. As early as 1824, it was noted that “there are a good many Carbonari in Tunis who have been exiled from Naples, in consequence of their political opinions.”137 Immigrants were not only subsistence migrants but also members of Masonic lodges and/or of political groups of various stripes, including anarchists. Later on, a branch of the Mafia set up shop in Tunis, which the spectacular 1894 murder case involving three Sicilian mafiosi brought to public attention.138 Nevertheless, investigations of a multinational fracas tend to ignore the possibility that ideologies embraced by parties to a conflict were at work.
This chapter also argues that consular jurisdiction entailed the policing of women and that “protection” and sexual supervision displayed a remarkable parallelism. While the consuls sometimes resisted demands by the Tunisian government to repatriate unruly male protégés, they responded with alacrity to charges of female sexual disorder. Men found guilty of violent crimes were most likely to be forcibly deported but so too were women accused of sexual transgressions, although persuasion was employed to convince “dangerous females” to leave voluntarily. Fearing charges of immoral conduct invariably leveled at their women, minority communities normally avoided actions that would call in outside authorities, which in turn poses the critical question of why communities delivered up their secrets at some times while jealously guarding them at others.
The legal armature of the modern nation-state was assembled by virtue of transnational, if piecemeal, processes, some of which occurred on the outermost margins of imperial formations. But cases from the present chapter (and others) show that issues of civil status, protection, and jurisdiction were debated far beyond the actual limits of empire—in an autonomous Muslim state. However much British consuls railed against their island protégés, Maltese males rarely presented jurisdictional uncertainty, unlike other expatriate groups such as the Greeks and Italians. When Maltese women converted to Islam, grave legal questions arose. If women and gender continue to be treated as somewhat inconsequential to constructions of modern global legal orders, the “crimes of the heart” committed by women like Grazia and Maria nudged at legal understandings of how civil status and religious affiliation figured into “national” belonging. That women of quite ordinary status, some unnamed in the sources, provoked legal controversies addressed by government lawyers at the heart of European empires should give us pause. Algerians settling in Tunisia after 1830 created another formidable gray zone where national and international law was made and unmade.
In The French Melting Pot, Gérard Noiriel argued that by the late nineteenth century “the identity paradigm was undergoing fundamental changes” as novel practices and procedures for marking foreign and foreigner, for legal inclusion or exclusion, crystallized in France.139 How did French imperialism, settler colonialism, and population displacements in North Africa and the central Mediterranean corridor push at the emerging identity paradigm? First, the presence of one of the largest standing armies in Africa at the time, positioned just over the border, constituted the elephant in the room—a vector for wide-ranging upheavals within Tunisia. From the 1830s on, a steady stream of deserters from the African army introduced French military law into the mix of knotty legal quandaries facing beylical and consular authorities. But religion constituted the most vexing of all. The growing Algerian presence caused the beys and ‘ulama’ to see their right—indeed duty—to protect fellow Muslims in light of the unpleasant reality that thousands of resident protected colonial subjects invited outside intrusion.
Legal and political authorities in Algiers and Tunis devised classificatory schemes for expatriate Algerian subjects, even those not deemed criminal. Critical to incipient methods of identification were diverse kinds of passports as well as the beylical teskéré and carte de sûrté. Regulations, such as Léon Roches’ 1855 administrative order on identity papers, did not prevent myriad cases of disputed Algerian origins, and thus of uncertain jurisdiction, which reoccurred before and long after 1881. The development of legal instruments for Algerians in diaspora suggests that a mix of laws were applied to, perhaps even fashioned in, refugee-receiving states, such as Tunisia and Morocco after 1830. Clearly, French law marking specific individuals and groups as subject to novel types of legal inclusion or exclusion occurred both within the metropole as well as outside it. For France, Algerian expatriates posed issues analogous in many ways to those confronting Great Britain and other imperial powers. In roughly the same period, physical attributes began to assume importance for European consuls in Mediterranean port cities as they sought to track nationals, protégés, and subjects, notably those accused of/or exiled for crimes. Did the category “Algerian” acquire a new legal armature and cultural meaning in precolonial Tunisia?
But wringing benefit from competing jurisdictions was by no means limited to Europeans; it became a game that two could play, even the colonized. The Tunisian writer and political activist Mahmud Bayram al-Tunisi (1893–1961) was born in Alexandria under British rule imposed in 1882. Al-Tunisi wielded a wickedly mordent pen and composed satirical tracts criticizing the Egyptian royal family for complicity with the colonizers. Because al-Tunisi was an expatriate colonial subject, he was under France’s protection and the French consulate worked tirelessly to block efforts by Egyptian and British authorities to arrest the writer for his inflammatory prose.140
The flow of traffic out of Algeria was not only made up of Muslim or Jewish refugees, riff-raff, or the down-and-out—far from it. In the next chapter, we encounter the men of the cloth and virtuous women from new female Catholic missionary orders who showed up as well. The Sisters of Saint-Joseph de l’Apparition might be considered Catholic dissidents who chose to leave—or more precisely were expelled from—colonial Algeria by 1840. The impact of expulsion upon the order’s growth in eastern Ottoman lands was a social fact whose importance cannot be overemphasized. Yet their missionary work in North Africa raises larger questions about the multiple and complex, as well as contradictory, relationships between religion and empire. What kinds of strategies, networks, and patronage allowed the Sisters of Saint-Joseph, founded by Emilie de Vialar, to flourish in a precolonial Muslim state? Why did Muslim princes receive into their realm foreign missionaries, educators, and do-gooders in an era of growing European interventions? And what does this tell us about relations between Islam and Christianity? How the founder and her small band of sisters even ventured to North Africa in the first place leads us to southwestern France just prior to 1830.
