There was no small irony here, for Cambon had insisted on “ending” European extraterritoriality in Tunisia so as to buttress French authority there. Thanks to reforms instituted by Cambon and his successors, consuls were indeed directly involved to a far lesser degree in the day-to-day workings of the justice system. But this hardly prevented their clients from using—and no doubt sometimes abusing—the ongoing recognition of extraterritorial jurisdiction that was built into the agreements to close European consular courts. Instead of overseeing the application of a uniform rule of law to all Europeans, French judges in Tunisia found themselves interpreting a bewildering variety of European civil codes. France allowed for divorce; Italy did not. Spain recognized religious marriage; France recognized only civil marriage. Malta had its own civil codes, which differed from British, not to mention French, law. Inheritance laws differed across European states and thus among European nationals in the protectorate. Faced with this legal pluralism, French courts applied foreign civil codes, first cautiously, by drawing on foreign legal advisers, then increasingly confidently, drawing on their own growing expertise.142
• • •
Whatever confidence experience gave the French courts in adjudicating the claims of Tunisia’s various “Europeans,” the central problem remained. France had only eliminated the institutional loci of extraterritoriality, not the phenomenon itself, since Article 4 of the Treaty of Ksar Said obliged France to recognize the bey’s prior treaties with other powers. One wonders, as the conservative deputy Jules Delafosse did as early as July 1882, “if those of you who voted the Treaty of Bardo, and who supported its full enforcement, imagined the potential consequences of such an arrangement.” Delafosse was notoriously hostile to the colonial enterprise in Tunisia, but his observation that Article 4 invited a “perpetual lawsuit [procès] with the entire world” was in many ways prescient.143 By the 1890s, the jurisdictional maneuvering of Tunisia’s “Europeans” brought even supporters of the protectorate to similar conclusions. Something had to be done to rein in the extraterritorial rights of Italy and Britain. The question was what.
Some thought the solution was annexation, pure and simple. Mostly, these were a small but loud group of disgruntled French settlers who resented the special privileges accorded to non-French Europeans and who, observing the powerful settler lobby in neighboring Algeria, wanted to emulate it. These settlers were tired of the “heavy obligation” that the Bardo Treaty had bequeathed, A. Goguyer wrote in a newly launched newspaper, La Libre Dépêche, in June 1893. They believed that if Tunisia were annexed, “all the anglo-tunisian and better yet, italo-tunisian treaties would disappear like so many ghosts, so many nightmares that have haunted us for fourteen years, because of an old Minister of Foreign Affairs.”144 The “old Minister” was undoubtedly Jules Barthélemy-Saint-Hilaire, who had been seventy-five years old when the Bardo Treaty was concluded.
One did not need to be an avid annexationist to be concerned about the power Italy exercised in the protectorate, however, and while the annexationist cause was often a source of irritation to France’s residents general in Tunisia, it also helped them make a case over the next few years to a revolving door of younger foreign ministers that France must denounce the Italian treaty and renegotiate the British one.145 In so doing, French officials would get around the problem of Article 4’s recognition of the bey’s preexisting treaties by seeing to it that those treaties were abrogated, thereby ending the system of capitulations in Tunisia once and for all. As the deadline for denunciation of Italy’s 1868 treaty neared, the Dépêche Tunisienne, a paper that often reflected the viewpoint of the residency general, worried openly that the Ministry of Foreign Affairs might neglect to denounce the treaty within a year before its expiration, in which case treaty stipulations held that it would be “considered renewed” for as many years as the original treaty agreement. In that case, “Italy would remain for 28 years an autonomous power just a few hours from Sicily.” Making its case for denunciation, the paper argued that “despite all the sacrifices made by France in Tunisia, despite the immense services rendered to the country by our administration, we are not free in Tunisia.” The rest of Europe had “authorized” France’s protection of Tunisia “in vain,” since a “foreign authority still operates in the Regency. It creates institutions [and] associations that form a State within the State.” France could have, the article went on, “put up with” the extraordinary rights exercised by the large Italian colony in the Regency “in the era before the Triple Alliance was known.” But to do so now, the paper argued, would be irresponsible.146
The French Ministry of Foreign Affairs did denounce the treaty, just in time. But that, according to the British consul in Tunis, “left matters very much as they were,” with a large and intractable Italian colony in the Regency.147 Annexationist newspapers began carrying paranoid stories reporting on the martial behavior of Italians recently arrived from Sicily and Pantelleria. Likening the recent “invasion” of Italian immigrants to the “expédition des Mille” during the Risorgimento (almost 2,400 men reportedly arrived in Tunis alone in the course of five months in 1895), La Tunisie Française described the new arrivals as “overloaded with arms, rifle on shoulder, double-barreled pistols on the belt, knife on the side,” sarcastically adding that the Italians claimed to be “out for a pleasure walk with all this bellicose equipment!”148 Tunisie Française’s editor, the polemicist Victor de Carnières, led the attack on the Italians, libeling famous members of the Tunis Italian community and challenging one of them to a duel when he responded violently to the depiction of him in de Carnière’s paper.149
In view of these passions, the French government could have simply let the year following the denunciation run out, allowing the treaty to expire in September 1896. Instead, it initiated new treaty negotiations with both Italy and Great Britain, whose own treaty had no expiration date. For Italy, the biggest stumbling block was the implicit recognition that renegotiating the treaty would give France. The 1868 treaty, naturally, had been entered into with the bey. It was thus a “considerable political concession” to “negotiate with France for Tunisia, where, except for the suspension of Consular justice, the pre-1881 status quo is still in force for us.”150 Italy’s insistence that the capitulations were still operative, treaty or no treaty, was a source of continual frustration for French officials, who contended that once they had established French courts in Tunisia, the rationale for the capitulations (i.e., the protection of Christians from the Muslim justice system) no longer existed.151
Even months into the negotiations, the Italian government still expressed “reservations resulting from the fact of our non-recognition of the Bardo Treaty.”152 Italy’s position might have been different, Foreign Minister Onorato Caetani di Sermoneta told the French ambassador to Rome, Albert Billot, “if you had eliminated him [the bey] at the beginning and replaced the preexisting regime purely and simply with French sovereignty.”153 As Billot told it, he could only laugh in response to this, before adding, “Do you mean to say . . . that the annexation of Tunisia to France would leave no basis for your demands and would remove any cause of trouble? It’s never too late to make good. But, beware! Is it really in your interest to push us in this new direction?” What if, he continued, “we decided to do in Tunis as you yourselves have done in Massawa [Eritrea] and we are doing in Madagascar right now”?154 Billot’s mention of Eritrea was probably meant to irritate Caetani, since Italian officials under Francesco Crispi had expressed a willingness to make significant concessions in Tunisia if France were willing to engage in some territorial swaps on the Horn of Africa; the idea of the swap, of course, had predated the Italian army’s disastrous experience in March 1896 at the Battle of Adwa [Ethiopia], which had brought the bellicose Francesco Crispi to resign as premier.155
The new premier, Crispi’s fellow Sicilian Antonio Starabba, the marquis Rudinì, concluded treaty negotiations in the fall. On 28 September 1896, three conventions (on commerce and shipping, consular rights, and extradition) were signed,