With foreign consular protection set to extinguish itself within a generation, the resident general could boast, twenty years after the establishment of the protectorate, of France’s progress in reining in jurisdictional jumping: “European protégés have been registered, and the list of them has been officially issued.”23 Since protected status could no longer be passed from one generation to the next, the French administration in Tunisia finally stood poised, at the dawn of the twentieth century, to put an end to the politics of protection played by its imperial rivals.
• • •
But what of France’s own politics of protection? If European protégés’ crossing of legal boundaries raised the question of French rivals’ ongoing influence on everyday affairs in the protectorate, the jurisdictional jockeying of Algerian French nationals in Tunisia drew attention to other cracks in France’s imperial edifice.24 The irony of d’Estournelles’s diatribe against the protégés was that if any country had abused the practice of offering consular protection in Tunisia, it had been France. In the preprotectorate era, as France competed with Italy and Britain for influence over Tunisian affairs, the French consul at Tunis not only had offered protection to numerous long-standing beylical subjects but also had deliberately recognized the French nationality of thousands of Muslim and Jewish colonial subjects from other parts of Africa (mostly Algeria) as a means of increasing the number of French nationals in the Regency—a practice that generated protests from the bey and his government.25 Even at the outset of protectorate rule in Tunisia, moreover, French authorities continued to encourage Algerian migration, calculating that it would be helpful to incorporate such “foreigners” into the occupation army.26 Thus, for all that jurists like G. de Sorbier de Pougnadoresse or officials like d’Estournelles decried the “crowds” of native clients who thwarted local sovereignty and upset the colonial racial hierarchy by obtaining foreign protection, the numbers of foreign protégés were minuscule in comparison to the French charges. Indeed, the ability of Algerian Muslims and Jews living in Tunisia to claim French nationality had posed such an obstacle to the bey’s sovereignty that, in the 1870s, his government had proposed a “convention” between Tunisia and France whereby Algerians who had settled in Tunisia for two years or more without declaring to the consulate their intention of remaining French nationals would be considered Tunisian subjects.27
Like the protégés, Muslims and Jews who could claim Algerian (and therefore French) status threatened to undermine the colonial power hierarchy that distinguished the rights of “Europeans” from those of “natives.” Thus, at the same time that French authorities sought to curtail foreign governments’ practices of protection, they also introduced regulations to limit Algerians’ claims to French nationality outside Algeria.28 Removing the special rights of Algerians proved delicate because, as nationals, theoretically they could not be denied French protection abroad. Moreover, unlike consular protection, nationality could be passed from one generation to the next. In this way, French efforts to restore subjects to the bey posed a dilemma of international law as well as intercolonial governance; it raised fundamental issues about the status of the protectorate, its distinction from a colony, and the rights under international law of French subjects living abroad.
Because Tunisia, unlike its neighbor, had not been annexed, Tunisia and Algeria were distinct territories under international law. In crossing the border into Tunisia, a Muslim Algerian not only left France for a foreign territory but also left behind the many discriminatory indigenous codes applying exclusively to Muslims in Algeria, for, in Tunisia, Algerians’ status as “French subjects” entitled them to consular protection. Indeed, French officials often believed that Algerians living in Tunisia had migrated there deliberately to escape French colonial control, and many, for that matter, had done so.29 Why then, French officials reasoned, should Algerians gain special rights as Frenchmen when their very presence in Tunisia was evidence of their rejection of French rule? With this in mind, a justice department memorandum written shortly after the establishment of French courts opined that the French justice system should
not remove from local jurisdiction the thousands of natives who, although originally from Algeria, only left our colony out of hatred for our domination and who, for many years already, have voluntarily submitted to the Bey’s authority and paid the taxes imposed on all subjects of this Prince.30
In fact, many Algerians did not “voluntarily submit” to beylical authority, and their presence was administratively cumbersome, since a claim to Algerian (and thereby French) status had to be verified before a court case could proceed, taxes could be collected, or a young man could be conscripted. The archives of the general secretary for the Tunisian government are filled with requests from the judiciary aiming to establish an individual’s “true” national identity prior to proceeding with a particular court case.31
The bey had become concerned about Algerians before the establishment of the protectorate, particularly when Algerian rebel operations spilled over into Tunisia.32 Under these circumstances, it can hardly be coincidental that the French consul already had sought to control Algerians’ access to rights as French nationals in Tunisia beginning in 1855.33 Yet his power to do so was limited, since unlike the protégés, Algerians’ rights hinged not so much on consular prerogative as on international law. Algerians had been recognized by jurists as French nationals since 1834, and the 1865 Senatus Consulte made their French nationality (albeit not citizenship) explicit. Therefore, as long as they could prove their Algerian origins and had not lost their “spirit of return” (esprit de retour) to French Algeria, they could not be denied consular protection. Losing the “spirit of return,” by contrast, was grounds for considering former Algerians to have become beylical subjects. When French nationality became inalienable in 1889, the protectorate administration faced a new problem.34 The 1889 law made it increasingly difficult for the administration to argue that Algerians had “lost” their French nationality by moving to Tunisia. At the very moment French officials endeavored to limit the number of European protégés, the 1889 law threatened to give Algerians unprecedented rights as protected persons in Tunisia.35
Moreover, as France extended its imperial reach in Africa at the turn of the twentieth century, the consolidation of rule in one place contributed to new legal complications in another. In 1895, France established the Federation of French West Africa (Afrique occidentale française or AOF), and in 1902, it completed its “pacification” of the Algerian Sahara, incorporating it as the “territories of the south.”36 Although these territorial appropriations solidified France’s position in North and West Africa, they were socially disruptive. “Pacification”—a euphemism for consolidating conquest through force—inevitably displaced populations. In the Western Soudan (now Mali), the establishment of French rule meant that slavery lost its legal standing; this in turn rent local social relations, as former slaves took leave of their masters, migrated in search of work as free laborers, and tried to evade their former masters’ efforts to find new legal means for forcing their return.37 Eager for low-cost labor,