What is a Tunisian? Jews and Belonging in the Nineteenth Century
Résumés
Cet article examine les conceptions de citoyenneté et l’inclusion des juifs comme citoyens en Tunisie au xixe siècle. Prenant comme point de départ le cas du litige autour de la succession de Nissim Shamama – un juif de Tunis qui meurt à Livourne en 1873 – l’article démontre que c’étaient des musulmans qui soutinrent que les juifs soient des membres de l’État tunisien avec pleins droits. C’étaient, par contre, les juristes européens qui concevaient le statut des juifs en terre d’Islam dans des termes purement religieux, et qui les excluaient de la possibilité d’appartenance complète dans l’État. Au même moment, les musulmans du Maghreb articulèrent une autre vision de l’égalité. Pour leur part, des juifs du Maghreb proposaient les mêmes positions que leurs associés musulmans. Cet article nous encourage à repenser l’appartenance en Tunisie du point de vue des juifs, et nous offre une nouvelle approche à l’histoire de la citoyenneté et de la nationalité au Maghreb contemporain.
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- 1 See, e.g., Ariel Salzmann, “Citizens in Search of a State: The Limits of Political Participation i (...)
1The history of citizenship in the Middle East and North Africa is almost always written as a story of westernization. Citizenship is presumed to be an inherently Western invention –one imported to the Islamic Mediterranean by modernizing elites intent on reforming their states to look more like those of the West. Modern citizenship, moreover, tends to be associated with a secular state in which one’s membership was not based on religion, but rather on political bonds open to all. The “failure” of Muslim-ruled states to conform to the Western model of secularization was thus also a failure of citizenship.1
- 2 See esp. Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Differenc (...)
2This historiography smacks strongly of the Eurocentric narratives that still dominate much of the history of North Africa and the Middle East.2 More problematic, however, is the fact that many North Africans did not conceive of citizenship as an import from Europe. Rather, they thought of it as rooted in Islamic concepts of sovereignty. This is also true when it comes to the belonging of Jews –the only non-Muslim community in North Africa by the late medieval period. Recovering the voices of North African Jews and Muslims allows us to re-write the history of citizenship: not as an invention of the West exported abroad, but rather as a conversation that occurred across the Mediterranean. What follows is a history of Tunisian citizenship as it was conceived of by North Africans in the late nineteenth century –and the place of Jews in the Tunisian state.
- 3 The average estate of the very richest people in Paris in 1872 (the wealthiest 0.1% of the po-pula (...)
- 4 Codice civile del Regno d’Italia, Turin, Stamperia Reale, 1865, p. vi-vii, Article 8.
3I approach these questions through the case of Nissim Shamama, a Jew from Tunis who died in Livorno in 1873. Shamama left behind an enormous fortune –estimated at twenty-seven million francs, one of the largest estates in Europe at the time.3 But he never had children, so it was unclear who would inherit his millions. Immediately after his death, Shamama’s wealth was hotly contested by various aspiring heirs; Shamama had left a will, but its validity was thrown into question in Italian courts. Before the judges in Livorno could determine the validity of the will, however, they needed to determine Shamama’s citizenship. This is because the Italian Civil Code required that estates be adjudicated according to the “national law” of the deceased.4 Although Shamama was born in Tunis, some argued that he had been naturalized as an Italian; others maintained that his naturalization was incomplete, as he had failed to complete the required bureaucratic measures.
- 5 For a full exploration of the lawsuit, see Jessica M. Marglin, The Shamama Case…, op. cit. On Sham (...)
4It took ten years and thousands of pages of legal briefs before the courts finally ruled on how to divide Shamama’s fortune.5 What interests us here is not so much the ruling, but the arguments made in the process –particularly those by Maghribis involved in the case. Their arguments for why Shamama should be considered a Tunisian offer insight into how they conceived of both citizenship and the legal status of Jews in modern North Africa.
- 6 The heir, Shlomo (Solomon) Shamama –known to all as Qa’id Momo– was Nissim’s nephew and by this ti (...)
5In what follows, I discuss just one corner of the labyrinthine lawsuit over Shamama’s estate. Among the dozens of actors involved –including the potential heirs and the lawyers they hired– the Tunisian government joined as a party to the case. Shamama had been a powerful official in the Ministry of Finance until his abrupt departure for Paris in 1864. Subsequently, he was accused of having skimmed significant sums from the Treasury and absconding with money that properly belonged to the Tunisian state. After Shamama’s death, government officials had to produce evidence of the debts they claimed Shamama still owed in order for Italian courts to accord them part of the estate. But no one in the Tunisian government was able to find definitive proof. Instead, the Prime Minister at the time, Mustafa Khaznadar, forced one of the potential heirs to sign a contract handing over a quarter of his share of the inheritance to the government.6 This made the Bey of Tunis and his representatives parties to the lawsuit.
- 7 The definitive work on Husayn is M’hamed Oualdi, A Slave Between Empires: A Transimperial History (...)
- 8 Jessica M. Marglin, “Jews, Rights, and Belonging in Tunisia: Léon Elmilik, 1861-1881”, L’Année du (...)
6In the spring of 1873, Sadiq Bey appointed Husayn b. ‘Abdallah to oversee the Tunisian government’s interests in the Shamama case. Husayn –known by his title “General” in Europe– was a mamlūk (an elite slave trained for government service) who had risen through the ranks of the Tunisian military.7 Husayn, in turn, hired Leon Elmilik (Eliayahu Al-Maliaḥ in Hebrew), a Jew originally from Algeria who had settled in Tunisia.8 Elmilik offered his services as an intermediary with the rabbis whose opinions were crucial to winning the case, since Jewish law played a role in the lawsuit; he acted as a translator, thanks to his knowledge of Hebrew, Arabic, French, and Italian; and he wrote his own briefs in support of the Tunisian government’s case. In their respective briefs written for the Italian courts, Husayn and Elmilik articulated their understandings of citizenship in Tunisia, and the basis of Jews’ membership in the Tunisian state.
7Given the amount of money at stake and the high-profile lawyers working on the case, everyone expected the Shamama lawsuit to go through at least one round of appeal. Nonetheless, the opinion of the court of first instance in Livorno –which pronounced the initial ruling on the estate on November 29, 1877– set the stage for all subsequent arguments. The Livornese court ruled that Nissim had not acquired Italian citizenship; nor was he a Tunisian citizen when he passed away. Shamama, according to this court, had thus died stateless.
8The court’s ruling raised a number of additional questions; some of these made it seem unlikely that any Italian court would rule that Shamama had died a Tunisian. In particular, the ruling questioned whether a Jew like Nissim could even be a Tunisian citizen in the first place. The ruling acknowledged that Nissim had been “a subject of the Regency of Tunisia”. But the court wondered whether he was also
- 9 “…se il fu Conte Caid Nissim Samama oltre ad essere suddito della Reggenza di Tunisi avesse anche (...)
[…] a citizen of this Regency –given that a subject is one who lives under the sovereignty of a given country, while one can only be a citizen or national if he is recognized as a member of a given society…and is able to exercise significant benefits therein?9
- 10 “potrebbe ben sostenersi che il fu Conte Caid Nissim Samama sebbene fosse suddito per nascita e pe (...)
9It was not clear whether Nissim could have been a “citizen” of Tunisia because “he professed the Jewish religion, and as a Jew he was barred from civil life in a society regulated by the”. The Livornese judges took an unapologetically teleolo-gical view of progress: they explained that Tunisia “had not yet accepted the great principles of liberty of conscience and absolute equality of all individuals before the law, regardless of religious faith”. Because Jews were not legally emancipated in Tunisia, they were not considered the civil and political equals of Muslims; this meant that Jews could only be subjects of the Bey, not citizens. Only Muslims could be considered citizens in a society “regulated by the Quran”. Therefore, a Jew like Nissim “never had Tunisian nationality and was never a citizen of this state”.10 The Livornese judges clearly did not think that Jews had access to citizenship on the other side of the Mediterranean.
- 11 “tumma lammā kānat al-ğinsiyyatu fī šarī‘ati al-islāmi manūṭatu bil-dīni bil-nisbati lil-muslimi, (...)
- 12 “Wa-innamā ‘aqdu al-dimmati ‘ibāratun ‘an kawni ġayri al-muslimīni yaltazimūna bil-duḫūli taḥta aḥ (...)
- 13 “Fa-inna al-ra‘āyā wal-ahālī wa-inna iḫtalafā lafẓan madlūluhumā waḥidun id laysa hunāka illā rā‘u (...)
10As Husayn prepared his arguments for the court of appeals, his aim was to convince the next round of judges that Shamama had, in fact, died a Tunisian citizen. He thus needed to refute the lower court’s suggestion that Jews could not be full members of the Tunisian state. In so doing, he offered a view of Tunisian citizenship grounded not in European political thought, but in the Islamic tradition: “In Islamic law, nationality (al-ğinsiyyatu) is based on religion for Muslim subjects, and on the pact of dhimma for non-Muslim subjects (lil-ra‘āyā ġayri muslimīni)”.11 In other words, Muslims owed religious allegiance to the sovereign, while the allegiance of non-Muslims, was based on their status as dhimmis. “The pact of dhimma”, Husayn explained, “means that non-Muslims obligate themselves to come under the rule of Islam, and in so doing they are classified as members of the Islamic state, both in terms of rights and duties”.12 Husayn argued that the court’s differentiation between citizens and subjects –and that Jews, as non-Muslims, could only be subjects– demonstrated an utter misunderstanding of the Islamic tradition. “In fact”, Husayn argued, “citizens (al-ra‘āyā) and subjects (al-ahālī) both refer to one thing: is there not just one shepherd [the Bey of Tunis] and his flock [his subjects]? And Islam has given dhimmīs under Islamic rule the same rights and duties as Muslims”.13
- 14 istiwā al-yahūd laday al-ḥukm: Archives Nationales de Tunisie (Tunis), SH.D108.D275.96, 15 Ša‘bān (...)
11Husayn knew it would be hard for the Italian judges to accept his argument that Jews in Tunisia had the “same rights and duties as Muslims”. It was received wisdom in the West that Muslims oppressed non-Muslims, and that Jews and Christians were at the mercy of fanaticism (whether from their sovereigns or from the uneducated masses). It was for this reason that Husayn instructed his employee Elmilik to secure the corroboration of the English consul in Tunis. Elmilik dutifully reported that he had obtained a document in which the consul affirmed the “equality of Jews before the law”.14
- 15 “ha-yehudim shavim hemah lifnei ha-mishpat ‘im ha-yishma‘elim” (Leon Elmelich, Megilah ‘Amukot Min (...)
- 16 Jessica M. Marglin, “Jews, Rights, and Belonging in Tunisia: Léon Elmilik…”, art. cit.
- 17 See esp. Julia Phillips Cohen, Becoming Ottomans: Sephardi Jews and Imperial Citizenship in the Mo (...)
12Elmilik further reinforced Husayn’s assertions in his own legal brief, published in 1878 in Hebrew, French, and Italian. Like Husayn, Elmilik asserted that “Jews and Muslims were equal before the law”.15 One might dismiss Elmilik’s statement as pure opportunism, written only with the goal of pleasing his employer and convincing the judges. But Elmilik’s assertion of equality between Jews and Muslims was part of his broader agenda to defend the Tunisian government as a guarantor of Jews’ rights. He even insisted that the Tunisian government acted justly towards Jews in the pages of French Jewish periodicals, which otherwise tended to be full of coverage emphasizing the fanaticism and intolerance of Muslims towards Jews.16 Nor was Elmilik alone in this quest; Jews across North Africa and the Middle East expressed confidence in the ability of Muslim sovereigns to ensure them equal treatment before the law –European presumptions about Islamic oppression notwithstanding.17
- 18 The canonical text outlining the rights and responsibilities of dhimmis was the Pact of ‘Umar (‘ah (...)
- 19 Paul Sebag, Histoire des juifs de Tunisie: Des origines à nos jours, Paris, L’Harmattan, 1991, p. (...)
- 20 Quran 9:29. The extent to which the ğizya was onerous varied across space and time. On the ğizya i (...)
- 21 Hammuda Pasha reigned from 1782-1814, and Bin Diyaf notes that he enacted this prohibition at the (...)
- 22 Archivio Storico del Ministero degli Affari Esteri, Ministero Affari Esteri Regno d’Italia (-Mosca (...)
13Husayn’s insistence that Jews in Tunisia had “the same rights and the same obligations” as Muslims sat uneasily beside his invocation of the dhimma as the basis of Jews’ membership in the state. Jews in Tunisia, as throughout the pre-modern Islamicate world –were considered ahl al-dimma. In this context, dimma means “protection”, referring to the protection that Muslim sovereigns guaranteed their non-Muslim subjects. Jews and other protected non-Muslims were known as dimmīs, literally “the protected”. In exchange for this protection, dhimmis agreed to certain restrictions designed to ensure their lower place on the social hierarchy –constraints that varied considerably from place to place and across time.18 Jews were often expected to wear distinctive clothing; in Tunisia this meant black shoes and a black skullcap, around which most wound a black or dark blue turban; the red šāšiyya (or “chechia” in French) was reserved for Muslims.19 And dhimmis paid distinct taxes from Muslims; throughout the Islamic world, non-Muslim subjects paid the ğizya, a capitation tax referred to in the Quran.20 A particularly harsh restriction levied on dhimmis in Tunisia was the prohibition against owning real estate, instituted by Hammuda Pasha in the late eighteenth century. (Yet even this rule was often circumvented by both Jewish and Islamic forms of usufruct rights that permitted Jews to effectively own buildings despite the strict letter of the law.)21 And in recent years, new restrictions were being added, including the prohibition against Jewish musicians playing at Muslim weddings, enacted in 1876.22 Being a dhimmi necessarily implied not being equal to Muslims; their distinct rights and responsibilities were at the very heart of what made them dhimmis.
- 23 Nonetheless, the formulation wal-diyānatu al-islāmiyyatu ğa‘alat li-ahli dimmāti al-islām mā lil-m (...)
- 24 Al-taswiyya bayna al-muslimi wa-ġayrihi min sukkān al-iyālati fī istiḥqāqi al-inṣāf (Article 3: ht (...)
- 25 This was in the context of a debate he had with Ibn Diyaf concerning whether Jews should sit on th (...)
- 26 Jessica M. Marglin, “A New Language of Equality: Jews and the State in Nineteenth-Century Morocco” (...)
14But we must not be too hasty in dismissing Husayn’s arguments as either disingenuous or mistaken. There is no question that he was misleading in claiming that Muslims and dhimmis had exactly the same rights and duties.23 But Husayn could nonetheless have been sincere in arguing for a certain kind of equality compatible with the framework of the dhimma. The ‘Ahd al-Amān of 1857 decreed “equality between Muslims and non-Muslims of the Province in claiming their rights”, while continuing to refer to Jews as dhimmis.24 A few years earlier, Husayn made the link between dhimmis’ right to equality and the ‘Ahd al-Amān explicit. He noted that Jews and Muslims in Tunisia can claim the same rights “according to the rule of equality proclaimed in the ‘Ahd al-”.25 Nor did he see the equality promised by the ‘Ahd al-Amān as incompatible with Jews’ status as dhimmis. Husayn’s understanding of dhimma aligned with that of other reform-minded Muslims in North Africa, who argued that dhimmis were equal before the law –meaning that the šarī‘a guaranteed justice to both Jews and Muslims.26 Even if Jews claimed a distinct set of rights from Muslims, this did not exclude them from the basic prerogative to be treated justly. Nor did it foreclose the idea that Jews and Muslims were equally entitled to justice, and thus enjoyed a form of equality.
- 27 “Fanatico e intollerante il Sovrano che sulla proposta dei collegii rabbinici nomina I giusdicenti (...)
15Husayn rejected the teleology of the Livornese court’s ruling, by which all countries were presumed to be evolving towards a radical kind of religious equality. Nor was he content to paint Tunisia as on par with Western European states when it came to tolerance. He went a step further, arguing that the status of Jews in Tunisia was preferable to their so-called equality in places like France. Here, Husayn’s argument rested on the presumption that true liberty for Jews meant the autonomy to administer their own internal affairs according to Jewish law. How could the Tunisian Bey be called “fanatical and intolerant”, Husayn asked, when he appointed Jewish judges to adjudicate among his Jewish subjects –all “according to the recommendations of the rabbis”? Husayn contrasted the autonomy granted to Tunisian Jews with the restrictions on religion in France, where the state kept a tight rein on religious personnel. “According to your logic”, Husayn explained, “France is a hundred times more fanatical and intolerant –France, where the King, Emperor, or President of the Republic nominates the bishops and archbishops by decree! Tunisian Jews”, he concluded, “live in our country with greater liberty than anywhere else”.27
- 28 ha-yesh lekha Rav Yosef Costa ḥofshit yoter gedolah mi-zot (Elmelich, Megilah ‘Amukot, 16). On the (...)
- 29 This is similar to other arguments made for equality through difference, such as by advocates of n (...)
16Elmilik once again echoed Husayn in claiming that Jews in Tunisia had more liberty than their coreligionists in Europe. He emphasized Jews’ access to a range of judicial options when going to court; they could choose a Jewish judge who applied Jewish law, a Muslim judge who ruled “according to the Quran”, or a court presided over by a Muslim state official. Could Jews in Italy claim “greater liberty than this?”28 Like Husayn, Elmilik invoked a distinct model of tolerance from the one pioneered in the wake of Napoleon’s Sanhedrin, where to be equal meant to have exactly the same rights as everyone else. Instead, Husayn and Elmilik insisted that true equality meant the right to have different rights, according to one’s religion.29 They refused Europe’s exclusive claim to equality, countering with an alternative vision that they saw as rooted in Islamic law and culture.
- 30 Muslim fanaticism and religious intolerance are central to Said’s conception of Orientalism: Edwar (...)
17In his efforts to defend the model of religious tolerance practiced in Tunisia, Husayn was fighting a losing battle. Religious liberty in Europe had become synonymous with radical equality. And as Europe became the unquestionable bastion of this kind of freedom, the Islamic world came to stand for its antithesis –a well-known dimension of Orientalism.30 As historians, however, we would do well to attend to the alternate ways of ordering difference articulated by the North Africans involved in the lawsuit.
- 31 Augusto Pierantoni, Corte di appello di Lucca…, op. cit., p. 8, p. 25.
- 32 Unlike Jews in Piedmont, who had been admitted to “perfetta eguaglianza di diritto” in 1854: ibid. (...)
18The cards, then, were stacked against Husayn. Even Augusto Pierantoni, the high-powered Italian lawyer Husayn had hired to represent the interests of the Tunisian government, would not advance his arguments for Jews’ equality in court. Pierantoni did, of course, make the case that Shamama had died a Tunisian national. But he did so on the basis that other states granted citizenship to those with differentiated rights –such as different laws for different states in the United States, or for different territories in Great Britain.31 Jews in Tunisia, however, were not “perfectly equal” to non-Jews, as they were in Italy.32
- 33 “…si concede agl’Israeliti in Tunisi il grande favore di portare il berretto rosso, con una facolt (...)
19The main lawyer leading the team for the opposing side was Pasquale Stanislao Mancini, a jurist even more illustrious in the legal world than Pierantoni. Mancini, of course, wanted to prove that Nissim had died an Italian; he was thus untroubled by the possibility that Jews might not be eligible for Tunisian citizenship. And when it came to the question of equality, Mancini was unabashed in his disdain for Husayn and Elmilik’s arguments: he dismissed these statements as the untrustworthy positions of interested parties, who deny the most obvious facts. In a tone dripping with irony, Mancini noted that the Bey had recently “granted the Jews of Tunis the great favor of wearing red hats, limited rights to acquire real estate, and the renowned permission to engage in agriculture!!”33 According to Mancini, the idea that there might be equality among Jews and Muslims in Tunisia was simply preposterous.
- 34 Jessica M. Marglin, The Shamama Case…, op. cit., Ch. 9.
- 35 “è proclamata la libertà dei culti, il godimento di ogni sicurezza personale e patrimoniale” (-Cal (...)
20Ultimately, Husayn was in a way victorious –even though by the time the final ruling in the case was handed down, Husayn had been fired from his position as representative of the Tunisian government.34 The Court of Appeals in Florence, the highest court to rule on the case, decided that Shamama had died a Tunisian citizen. The judges explicitly noted that the ‘Ahd al-Amān of 1857 had “proclaimed the freedom of religion and the guarantee of security both in one’s person and in one’s property”.35 This is not exactly an acknowledgment of equality, but it is fairly close –and certainly went against the tide of received wisdom concerning the status of Jews in North Africa and the rest of the Islamic world.
21The agreement of the three judges sitting on the Court of Appeals in Florence is hardly representative, though it reminds us of the diversity of opinion among Europeans about the Islamicate world. The judges certainly accepted that Jews could be citizens of Tunisia. Yet their ruling was equivocal enough to leave some doubt as to where, exactly, they stood regarding whether Jews were the equal of Muslims. Ultimately, however, their opinion is of secondary import when it comes to the question of how North African Jews and Muslims conceived of Tunisian citizenship.
22The Shamama lawsuit prompted people like Husayn and Elmilik to reflect on the basis of belonging in Tunisia. Citizenship stemmed not from ancient Greek ideals transplanted to the Maghrib, but on the sovereignty accorded to Muslim rulers by Islamic law. Jews were included in the political community by virtue of the protection they were accorded –whether as dhimmis (before 1857), or as subjects of the Bey alongside their Muslim neighbors (after the ‘Ahd al-Amān). Needless to say, a single lawsuit does not offer a conclusive view of citizenship from the North African perspective. But the Shamama case encourages us to reject older frameworks that retain the Eurocentric assumptions about modern citizenship as a Western invention exported across the Mediterranean. Instead, the writings of people like Husayn and Elmilik urge us to look for visions of belonging that defy Western paradigms, especially concerning the place of Jews in North Africa and the rest of the Islamicate world.
Notes
1 See, e.g., Ariel Salzmann, “Citizens in Search of a State: The Limits of Political Participation in the Late Ottoman Empire”, in Michael Hanagan and Charles Tilly (eds), Extending Citizenship, Reconfiguring States, Lanham, MD, Rowman and Littlefield, 1999; Kemal Karpat, “Millets and Nationality: The Roots of the Incongruity of Nation and State in the Post-Ottoman Era”, in Benjamin Braude and Bernard Lewis (eds), Christians and Jews in the Ottoman Empire: The Functioning of a Plural Society, New York, Holmes and Meier, 1982; id., “Nation and Nationalism in the Late Ottoman Empire”, in Kemal Karpat (ed.), Studies on Ottoman Social and Political History: Selected Articles and Essays, Leiden, Brill, 2002. This essay is adapted from my book, The Shamama Case: Contesting Citizenship Across the Modern Mediterranean (Princeton University Press, 2022). In this essay, I use the term citizenship for the sake of simpli-city: in the book, however, I note that the precise boundaries between terms like “citizenship,” “nationality,” and “subjecthood” were very much in flux until late in the nineteenth century. Rather than trying to pin down a single meaning for any of these terms –which the actors in the Shamama lawsuit mostly used interchangeably– I instead suggest the term “legal belonging,” a more neutral, capacious way of describing the various forms of membership in a state: see also Jessica M. Marglin, “Extraterritoriality and Legal Belonging in the Nineteenth-Century Mediterranean,” Law and History Review, vol. 39, no 4, November 2021, p. 679-706.
2 See esp. Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference, Princeton, Princeton University Press, 2000.
3 The average estate of the very richest people in Paris in 1872 (the wealthiest 0.1% of the po-pulation) was 4.6 million francs; only legends like the Rothschilds were significantly wealthier than Shamama: see Thomas Piketty, Gilles Postel-Vinay and Jean-Laurent Rosenthal, “Wealth Concentration in a Developing Economy: Paris and France, 1807-1994”, The American Economic Review, vol. 96, no 1, 2006, and the relevant data appendix, available at: http://piketty.pse.ens.fr/rentiersociety/PPVR2011DataAppendix.pdf (esp. table B8).
4 Codice civile del Regno d’Italia, Turin, Stamperia Reale, 1865, p. vi-vii, Article 8.
5 For a full exploration of the lawsuit, see Jessica M. Marglin, The Shamama Case…, op. cit. On Shamama, see also Abdelhamid Larguèche, “Nasim Shammama; un caïd face à lui-même et face aux autres”, in Sonia Fellous (ed.), Juifs et musulmans en Tunisie: fraternité et déchirements, Paris, Somogy éditions d’art, 2003, p. 143-157; Yuval Haruvi, “Les conflits autour du testament du Caïd Nessim Scemama, d’après quelques sources hébraïques”, in Denis Cohen-Tannoudji (ed.), Entre Orient et Occident: juifs et musulmans en Tunisie, Paris, Éditions de l’éclat, 2007, p. 143-156; id., “Ha-elitah ha-toranit shel ha-‘ir Tunis be-‘idan ha-moderni, 1873-1921”, Ph.D. Dissertation, Tel Aviv University, 2013, Ch. 1.
6 The heir, Shlomo (Solomon) Shamama –known to all as Qa’id Momo– was Nissim’s nephew and by this time was himself working for the Tunisian government. See Jessica M. Marglin, The Shamama Case…, op. cit., Ch. 5.
7 The definitive work on Husayn is M’hamed Oualdi, A Slave Between Empires: A Transimperial History of North Africa, New York, Columbia University Press, 2020.
8 Jessica M. Marglin, “Jews, Rights, and Belonging in Tunisia: Léon Elmilik, 1861-1881”, L’Année du Maghreb, no 23, 2020, p. 167-184.
9 “…se il fu Conte Caid Nissim Samama oltre ad essere suddito della Reggenza di Tunisi avesse anche la qualità di Cittadino di quella Reggenza, imperocchè se suddito è colui che vive soggetto alla sovranità d’un dato paese, Cittadino o Nazionale può chiamarsi soltanto colui, che viene ricono-sciuto come membro di una data socièta o consorzio politico ed è ammesso al godimento almeno dei maggiori benefizi…” (Augusto Pierantoni, Corte di appello di Lucca: Per il governo di S. A. Il bey di Tunisi nella Successione Samama: Parte Prima: Della nazionalità del testatore, Rome, Tipografia Fratelli Pallotta, 1879, p. 7).
10 “potrebbe ben sostenersi che il fu Conte Caid Nissim Samama sebbene fosse suddito per nascita e per origine del Regno di Tunisi, non ha avuto mai la nazionalità Tunisina e non è stato mai il cittadino di quello Stato, poiché egli professava la religione Israelitica e come israelita non ha potuto essere ammesso al godimento della vita civile in una società, ch’è regolata dal Corano e non ha per ora accolti i grandi principî della piena libertà di coscienza e della assoluta eguaglianza di tutti i sudditi di fronte alla legge, qualunque sia la loro fede religiosa” (ibid., p. 8).
11 “tumma lammā kānat al-ğinsiyyatu fī šarī‘ati al-islāmi manūṭatu bil-dīni bil-nisbati lil-muslimi, wa-bi-‘ahdi al-dimmati bil-nisbati lil-ra‘āyā ġayri al-muslimīni” (Al-Ginirāl Ḥusayn, “Al-qusṭās al-mustaqīm fī ẓuhūr iḫtilāl al-ḥukm bi-nafī ğinsiyyat al-qā’id Nisīm,” in Al-ginirāl Ḥusayn: Ḥayātuhu wa-ātāruhu, ed. Aḥmad al-Ṭawīlī, Tunis, 1994, p. 252.
12 “Wa-innamā ‘aqdu al-dimmati ‘ibāratun ‘an kawni ġayri al-muslimīni yaltazimūna bil-duḫūli taḥta aḥkāmi al-islām, wa-bi-dālika yaḥṣalūna ‘alā al-intiẓāmi fī silki al-islāmi fīmā lahum wa-‘alayhim” (ibid., p. 254). The French translation reads: “le pacte de sujétion constate que des individus non musulmans consentent à devenir sujets d’une puissance musulmane et à se soumettre à la loi islamique” (General Heussein, Lettre de Général Heussein au Collège de la Défense du Gouvernement Tunisien dans l’affaire du Caïd Nessim Samama; traduction de l’arabe, Paris, Typographie Ves Renou, Maulde et Cock, 1878, p. 21).
13 “Fa-inna al-ra‘āyā wal-ahālī wa-inna iḫtalafā lafẓan madlūluhumā waḥidun id laysa hunāka illā rā‘un wa-ra‘īyatun, wal-diyānatu al-islāmīyatu ğa‘alat li-ahli dimmāti al-islām mā lil-muslimīn wa-‘alayhim mā ‘alayhim” (Ḥusayn, “Ginsiyyat al-qā’id Nisīm”, 277). The French translation reads: “citoyens ou sujets sont tous à nos yeux des Tunisiens ayant la même patrie, les mêmes droits et la même sanction” (Heussein, Lettre au Collège de la Défense, 35). Note that the terminology in Arabic (as in European languages) was unstable: in Husayn’s translation into French, he rendered al-ra‘āyā as citoyens and al-ahālī as sujets. But ra‘āyā literally means “flock,” and was more commonly translated as “subjects.” Ahālī, on the other hand, is best translated as “peoples” or “people,” and might be closer to the term “nationals.” It is the very instability of these terms that leads me to use a more neutral term “legal belonging” in the larger project.
14 istiwā al-yahūd laday al-ḥukm: Archives Nationales de Tunisie (Tunis), SH.D108.D275.96, 15 Ša‘bān 1295, Elmilik to Husayn.
15 “ha-yehudim shavim hemah lifnei ha-mishpat ‘im ha-yishma‘elim” (Leon Elmelich, Megilah ‘Amukot Minei Hoshekh, Livorno, Shelomoh Belforte, 1878, p. 16).
16 Jessica M. Marglin, “Jews, Rights, and Belonging in Tunisia: Léon Elmilik…”, art. cit.
17 See esp. Julia Phillips Cohen, Becoming Ottomans: Sephardi Jews and Imperial Citizenship in the Modern Era, Oxford, Oxford University Press, 2014; Jessica M. Marglin, Across Legal Lines: Jews and Muslims in Modern Morocco, New Haven, Yale University Press, 2016, Ch. 5.
18 The canonical text outlining the rights and responsibilities of dhimmis was the Pact of ‘Umar (‘ahd ‘Umar), traditionally attributed to the third caliph ‘Umar (d. 644) but more likely from the ninth century: see esp. Mark R. Cohen, “What was the Pact of ‘Umar? A Literary-Historical Study”, Jerusalem Studies in Arabic and Islam, no 23, 1999, p. 99-131. For an introduction to the status of ahl al-dhimma, see id., Under Crescent and Cross: The Jews in the Middle Ages, Princeton, N.J, Princeton University Press, 1994, Ch. 4.
19 Paul Sebag, Histoire des juifs de Tunisie: Des origines à nos jours, Paris, L’Harmattan, 1991, p. 117; Ridha Ben Rajeb, Yahūd al-bilāṭ wa-yahūd al-māl fī Tūnis al-‘utmāniyyati, Beyrouth, Dār al-mudār al-islāmī, 2010, p. 87-90.
20 Quran 9:29. The extent to which the ğizya was onerous varied across space and time. On the ğizya in Tunisia, see Yahūd al-bilāṭ, 93-8. More generally, see Antoine Fattal, Le statut légal des non-Musulmans en pays d’Islam, Beyrouth, Imprimerie Catholique, 1958, Ch. 7.
21 Hammuda Pasha reigned from 1782-1814, and Bin Diyaf notes that he enacted this prohibition at the beginning of his reign: Aḥmad Ibn Abī al-Ḍiyāf, Itḥāf ahl al-zamān bi-aḫbār mulūk Tūnis wa-‘ahd al-amān (Tunis, Al-Dār al-Tūnisiyya lil-Našr, 1989), 4: 287. On this rule and its circumvention, see Abdelhamid Hénia, Propriété et stratégies sociales à Tunis à l’époque moderne (xvie-xixe siècles), Tunis, Université Tunis I, Faculté des sciences humaines et sociales de Tunis, 1999, p. 311-318; see also Abdelhamid Larguèche, “La communauté juive de Tunisie à l’epoque Husseinite: unité, contrastes et relations inter-communautaires”, in Histoire communautaire, histoire plurielle: la communauté juive de Tunisie, Tunis, Université de Tunis I, Faculté des lettres de la Manouba, 1999, p. 169.
22 Archivio Storico del Ministero degli Affari Esteri, Ministero Affari Esteri Regno d’Italia (-Moscati VI), 1441, Pinna to Melegari.
23 Nonetheless, the formulation wal-diyānatu al-islāmiyyatu ğa‘alat li-ahli dimmāti al-islām mā lil-muslimīn wa-‘alayhim mā ‘alayhim recalled that of a hadith, deemed “weak” or untrustworthy, that reads lahum mā lanā wa-‘alayhim mā ‘alaynā: see, e.g., Muḥammad Nāṣir al-Dīn al-Albānī, Silsila al-aḥādit al-ḍa‘īfa wal-mawḍū‘a wa-ātāruhā al-šay’ fī al-umma (Riyad, Maktaba al-ma‘ārif lil-našr, 1996), 5: 195-197, #2176.
24 Al-taswiyya bayna al-muslimi wa-ġayrihi min sukkān al-iyālati fī istiḥqāqi al-inṣāf (Article 3: http://www.e-justice.tn/fileadmin/images/repertoire_musee/husseinite_avant_protec/Pacte_fondamental_1857_ar.pdf).
25 This was in the context of a debate he had with Ibn Diyaf concerning whether Jews should sit on the Supreme Council (the mağlis al-‘āla): Léon Bercher, “En marge du pacte ‘fondamental’: un document inédit”, Les cahiers de Tunisie, no 79-80, 1972, p. 250.
26 Jessica M. Marglin, “A New Language of Equality: Jews and the State in Nineteenth-Century Morocco”, British Journal of Middle Eastern Studies, vol. 43, no 2, 2016, p. 158-175. The idea that equality before the law could coexist with differentiated rights and duties was common in medieval Italian city-states, where citizenship conferred legal equality, without presuming either political or civil equality: Peter Riesenberg, “Citizenship and Equality in Late Medieval Italy”, Studia Gratiana, no 15, 1972.
27 “Fanatico e intollerante il Sovrano che sulla proposta dei collegii rabbinici nomina I giusdicenti ad amministrare la giustizia pfra I sudditi isdraeliti [sic]? … Cento volte più fanatica e più intollerante sarebbe, secondo voi, la Francia: dove il re, l’imperatore, o il presidente della repubblica, nomina con suo decreto I vescovi e gli arcivescovi….Gli isdraeliti [sic] tunisini vivono nel nostro paese con larghezza di libertà propria maggiore che per tutto altrove” (Generale Heusséïn, Lettera del Generale Heusséïn all’onorevole avvocato Comm. Adriano Mari, Livorno, Tipografia di Francesco Vigo, 1880, p. 20).
28 ha-yesh lekha Rav Yosef Costa ḥofshit yoter gedolah mi-zot (Elmelich, Megilah ‘Amukot, 16). On the range of legal options available to Jews in Morocco, see Jessica M. Marglin, Across Legal Lines…, op. cit.
29 This is similar to other arguments made for equality through difference, such as by advocates of national cultural autonomy in the Austro-Hungarian Empire: see esp. Karl Renner, “State and Nation”, in Ephraim Nimni (ed.), National Cultural Autonomy and its Contemporary Critics, London, Routledge, 2005. The question of whether religious minorities deserve their own religious law or civil equality remains a live issue, especially in inheritance cases: see, e.g., Molla Sali v. Greece, European Court of Human Rights (2018 and 2020), available at https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-188985%22]} and https://hudoc.echr.coe.int/eng#{%22appno%22:[%2220452/14%22],%22itemid%22:[%22001-203370%22]}.
30 Muslim fanaticism and religious intolerance are central to Said’s conception of Orientalism: Edward W. Said, Orientalism, 25th anniversary ed., New York, Vintage Books, 2003. On the discourse around religious minorities, see esp. Saba Mahmood, “Religious Freedom, the Minority Question, and Geopolitics in the Middle East”, Comparative Studies in Society and History, vol. 54, no 2, 2012, p. 418-446.
31 Augusto Pierantoni, Corte di appello di Lucca…, op. cit., p. 8, p. 25.
32 Unlike Jews in Piedmont, who had been admitted to “perfetta eguaglianza di diritto” in 1854: ibid., p. 15.
33 “…si concede agl’Israeliti in Tunisi il grande favore di portare il berretto rosso, con una facoltà limitata di acquistare immobili, e con la insigne permissione di poter esercitare l’agricoltura!!” (Pasquale Stanislao Mancini, Corte di appello di Lucca; Per gli eredi testamentari del fu Conte Caid Nissim Samama contro i pretendenti alla sua eredità ab intestato; Ricerca della legge regolatrice della successione del testatore, Rome, Tipografia Fratelli Pallotta, 1880, p. 285).
34 Jessica M. Marglin, The Shamama Case…, op. cit., Ch. 9.
35 “è proclamata la libertà dei culti, il godimento di ogni sicurezza personale e patrimoniale” (-Calcedonio Inghilleri, “Samama v. Samama”, Annali della Giurisprudenza, vol. 17, no 3, 1883, p. 390).
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Jessica M. Marglin, « What is a Tunisian? Jews and Belonging in the Nineteenth Century », Cahiers de la Méditerranée, 105 | 2022, 165-174.
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Jessica M. Marglin, « What is a Tunisian? Jews and Belonging in the Nineteenth Century », Cahiers de la Méditerranée [En ligne], 105 | 2022, mis en ligne le 15 juin 2023, consulté le 29 septembre 2023. URL : http://journals.openedition.org/cdlm/16410 ; DOI : https://doi.org/10.4000/cdlm.16410
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