An early draft of the 1834 ordinance on judicial organization sought to reconcile the new plural legal order with the French Civil Code. One proposed article asserted that nothing authorized in Algeria should “contravene the law with respect to public order and good morals” (article 6 of the Civil Code). A marginal annotation highlighted how the legality of polygamy in Muslim and Jewish law violated this idea of “public order.” Registering broader concerns about placing limitations on Muslim law, the drafters removed the article from the final version.1 The polygamy of local law would be preserved alongside the Civil Code and its monogamous ideal. As the Ministry of War explained, a hasty application of “French” law would have decidedly negative effects, because “sovereignty, imposed in this way, will either be nominal or it will be despised.”2 For French jurists, polygamy nonetheless remained a sexualized symbol of native legal difference.
These views predated Algerian colonization. The preparatory documents of the Civil Code clearly marked polygamy as an unnatural, tyrannical custom outside the modern French legal order. In his preliminary discourse on the Code, Jean-Marie Portalis upheld monogamy as a legal principle grounded in nature, which “placed in our own hearts, the rule and limit” on men’s otherwise “irresistible penchants.” He and the Civil Code’s article 147 affirmed that “marriage can only be an engagement of two individuals; as long as one marriage exists, it is not possible to contract a second one.”3 Drawing on Enlightenment anthropologies of “Oriental despotism,” Portalis avowed polygamy’s existence elsewhere: “The multiplicity of husbands or wives may be authorized in certain climates, but is legitimate in none; it brings about the servitude of one sex and the despotism of the other.” Unnatural and antisocial, polygamy did not, in his view, correspond to “the real needs of man” and “introduced into families a confusion and disorder that soon spreads to the entire social body.” Reprising the familiar Orientalist fantasy of the despotic patriarch’s deviant sexual excess, Portalis associated plural marriage with the “stupid brutishness of certain at once corrupt and semi-barbarous nations of Asia.” In contrast to the practice of these disordered societies, monogamy, he claimed, “was a universal law of all well-governed nations [nations policées].”4 This rejection of polygamy as decadent and primitive nonetheless underwrote women’s legal subordination in the “sexual contract” of the Civil Code.5
Transgressing natural and positive law, polygamy violated the principles of “public order and good morals [bonne mœurs]” enshrined in article 6 of the Civil Code. By forbidding private conventions that violated “the general will,” this article upheld a “supreme law” and stood in the way of the “dissolution of the State.” The “good morals” that “supplemented good laws” were a hallmark of “well-governed nations.”6 These precepts were supposed to protect the integrity of the Civil Code and French sovereignty, while establishing a civilizational standard of belonging in the “family of nations.”7
The 1865 law—the sénatus-consulte—that established a categorical distinction between French citizens and “indigenous” subjects drew on related arguments indexing civilization to sexual law. Its different categories of legal personhood were tautologically grounded on a distinction between French civil law on the one hand and Qur’anic, customary, and Mosaic personal status law on the other. In order to explain the incompatibility and incommensurability between these legal systems, the measure’s advocates pointed to the privileged “rights” of polygamy and divorce in indigenous law as core features of difference. In defending the proposed law before the Senate, the conseiller d’état Louis-Hughes Flandin explained that “the full exercise of French citizenship rights is incompatible with the maintenance of Muslim status and its dispositions, which are contrary to our laws and our mœurs for marriage, repudiation, divorce, the status of children.”8 The sénatus-consulte established a rule of Algerian difference by outlining the terms and conditions of legal assimilation. French citizenship, French civil law, and indissoluble, monogamous marriage were of a piece.9
This projective Orientalist fantasy was a durable facet of French legal and broader cultural imagination. Premised on the timeless and unchanging character of “the Orient,” it appeared to resist historical change.10 Behind this apparently timeless screen, however, the legal, social, and political meanings attributed to polygamy across the nineteenth century were, in fact, multiple and conflicting, especially as France’s engagement with Algeria intensified. This chapter traces that change over time. As I show, colonial interests did not exclusively view indigenous polygamy as an expression of religious law. They also linked it to the disposition of property.
In the earliest decades of Algerian colonization, Saint-Simonian-inspired military officers understood polygamy to be an economic institution that could be reformed by social engineering. In debating colonization schemes, military officials, settler advocates, metropolitan publicists, Jewish philanthropists, Muslim notables, and juridical experts alternately denounced or denied polygamy’s status as an entrenched cultural practice. The eventual identification of polygamy as an intractable—and intolerable—Qur’anic “right” emerged out of politically charged debates about the place of Algerian natives in the colonial order. This genealogy clarifies how the difference between “French” and “native” law surrounding the family became a linchpin of the Algerian colonial order.
Prior to the collective naturalization of indigenous Jews by the Crémieux Decree in 1870, polygamy was protected in both Muslim and Mosaic personal status law. After that date, polygamy indeed became almost exclusively an attribute of the indigène musulman, an emblem of his inassimilable religious and legal difference, which justified exceptional legal treatment and political exclusion.11 This development was not, however, as inevitable or as coherent as it might seem in retrospect. This chapter restores to view the fragmentary components out of which this politically potent but by no means stable image of Algerian Muslim legal difference was fashioned.
A Familiar Fantasy
Algeria had been associated with polygamy since the Enlightenment, most notably in the writings of Montesquieu.12 After 1830, Romantic painters such as Eugène Delacroix and Théodore Chassériau depicted mythic harems filled with idle and languorous inhabitants, whose apparently tranquil timelessness occluded the violence and political uncertainty of the conquest.13 Such fantasies of the unadulterated harem would not, however, survive the brutal reality of colonial penetration intact, as numerous contemporary caricatures of its invasion by French soldiers mockingly made clear.
Citing Delacroix, an 1837 article in the recently founded La revue africaine on dancing women indicates a widespread awareness of this fantasy as a cliché. The author offers an “opinion on the harem” based on a spectacle, “a painting of physical pleasure,” that he viewed while visiting Algiers in the company of Genty de Bussy.14 Describing the dream induced by the lascivious dance, the author literalizes a scopophilic and extimate fantasy of “becoming Muslim” as a “sensation [mouvement] of pride, an instinctive action which makes you enjoy your superiority. Like a real Muslim, one gives oneself a soul, while refusing one to women.”15 In the thrall of this enjoyment of male domination, he proclaims: “O harem! O harem! There at least you will no longer escape us; your body, your spirit, we will enclose them in a narrow prison. Only there will we calmly enjoy all the happiness that they each give us.”16
In this account, the sensual dance induced an identification with the Muslim and his law that granted the French observer a sense of mastery despite the tenuousness of colonial domination. Its ethnographic pretext cast dancing as an expression of local culture, its “relations between men and women,” and hence an index of their “morality and legislation.”17 Travelogues, in turn, reproduced this cliché of the mauresque dancer, creating a tourist market for women who worked as dancers-cum-prostitutes throughout the colony. An entry on “L’algérien fran-çais” in one famous July Monarchy tableau depicts this bespangled Figure, writhing before an excited crowd.18
Moral condemnation was the flip side of this eroticized compensatory fantasy.19 Familiar denunciations of polygamy’s political and economic vices dovetailed with religious critiques. An overtly Catholic perspective animated contributors to the Revue de l’Orient, a journal that promoted a French and Christian perspective on the “Eastern Question” in the 1840s. The Revue’s sponsor, the Société orientale, focused on religious matters, and especially on cataloging the effects of Islam on “Oriental civilization.” Its program proposed to investigate polygamy “as an obstacle to civilization.” The authors highlighted “its effect on the family and society,” and they worried that divorce in Europe might have “consequences analogous to those of polygamy.”20 Family matters were at the heart of this Catholic politico-religious vision.
Théodore Fortin d’Ivry, an advocate of colonial settlement, laid out the content of this critique in detail. In what became a familiar colonial trope, Fortin condemned how Islam “justifies instincts and legalizes the most atrocious fantasies and the most revolting passions.”21 Viewed as a corporealized rather than properly spiritual religion, Islam was assumed to promote “men’s capacity [faculté] to develop his sensual appetites, and the consecration of these appetites by doctrine.”22 Polygamy epitomized this sensualism; the “multiplicity of women, their inferiority, and men’s near absolute freedom over them” constituted Islam’s lure and lore.23
In the same journal ten years later, another author, a sub-prefect in the newly created department of Constantine, André Pierre Charles Lamouroux, argued that the French should abolish polygamy altogether in order to eliminate antagonism between Christians and Muslims. For Lamouroux, the advantages were numerous: poor men would have ample opportunities to marry; women and children’s lives would improve; and the temptation of sodomy would be eliminated. These reforms would, in turn, benefit French domination and the security of the country. Extending French civil law throughout the colony would create legal uniformity and bring settler and Muslim populations closer together. But his closing paragraph also hints at another motivation. Abolishing polygamy would, he claimed, stop Europeans from “allowing themselves to be seduced by Muslim doctrines, which are largely given over to sensuality.”24 The prospect of polygamy, in other words, might tempt European men into converting.
This brief survey indicates the prevalence of the projective fantasies of Muslim sensuality and decadence that bolstered European claims to cultural superiority and domination, at once desiring and fearing the seductions of polygamy. But they were by no means universal, especially among those who put French domination into practice. The French military men responsible for implementing colonial government in the colony’s newly established Arab Bureaus (bureaux arabes) adopted an apparently less moralizing perspective—one that did not presume the immediate extension of civilian colonization and with it French law. Initially created in 1837 and formalized in 1844, the Directorate of Arab Affairs was under the authority of the governor-general, with virtually no civilian oversight. It relied on extensive intelligence-gathering measures, including detailed studies of indigenous culture, to secure the military’s control. Placed within a bureaucratic hierarchy, military officers were appointed to positions at the head of offices located in each of the territory’s provinces (Alger, Oran, Constantine) as well as at intermediate-level “subdivisions” and smaller “circles.” They observed the local population and regularly filed extensive reports that traveled up the chain of command.25 Army officers’ claims to expertise served, in turn, to authorize military rather than civilian control over colonization. Their studies of subject tribes and towns notably downplayed cultural and legal antagonism, even as their writings perpetuated stereotypes of Algerian difference. An analysis of their accounts of polygamy complicates a monolithic conception of how sexual and cultural difference informed early debates over Algerian colonization.
Administrators in Algeria immediately confronted the problem of how to “harmonize” French laws with local ones.26 As we saw in the last chapter, the judicial organization of 1834 established distinct frameworks of law for civil matters.27 While French penal law was territorialized on February 28, 1841, a September 26, 1842, ordinance maintained “religious law” for the “civil status” matters of natives, both Muslim and Jewish. In Muslim law courts, government-appointed qadis and muftis were responsible for civil and commercial affairs “between Muslims” (article 31). This legislation did, however, abolish rabbinic tribunals. While Mosaic law still applied, rabbis no longer had “any jurisdiction over their coreligionists” (article 32). They were reduced to a consultative role regarding questions of “civil status, marriage, and repudiation” (article 49). The same ordinance also maintained military officials’ discretionary disciplinary powers in the territories that they administered, while granting “French” and “European” inhabitants a limited right of judicial appeal. No such appeal was open to those who belonged to the legal category of indigènes or that of “non-European” foreigner (article 43).28
This policy of multiple jurisdictions was entrenched by the formal establishment in 1844 of the system of Arab Bureaus, which administered much of the newly conquered territory in the first decades of French rule. Relying as they did on native chiefs and native justice to maintain their control, the military men who assumed these roles adopted a tactical attitude toward Muslim law. Written at the behest of Governor-General Thomas Robert Bugeaud, the official government “handbook” for these officers on “the current state of Arab society” outlined this orientation. The preface explained that because the Qur’an linked religious and civil law, it would “always be difficult to substitute an entirely French system of administration for one developed by habits, mœurs, and beliefs in Africa without profoundly disturbing the population.”29 As the instructions made clear, the guarantee of justice remained reliant on the expertise of local qadis. From the perspective of the Arab Bureaus, native society suffered less from an excess of Islamic law than from its uneven and incomplete application. It was accordingly seen not as a source of decadence, but as a font of native social renewal.30
This pragmatic attitude was borne out in Arab Bureau officers’ published writings. Given their schemes for radically transforming rural tribes’ nomadic ways of life, these administrators often emphasized the economic rather than religious bases of polygamy and generally downplayed “Islamic law” as a source of women’s suffering. This approach carried all the hallmarks of their training at the elite military engineering academy, the École polytechnique, which has been so well analyzed by Osama Abi-Mershed and Patricia Lorcin.31 The Arab Bureau “intellectual” Charles Richard was, on this count, a case in point. When he was not actually testing out new settlement schemes in the district of his Arab Bureau of Orléansville (Chlef), he devoted his time and energy to planning native reform by penning a number of well-known pamphlets.32
According to Richard, the colony’s subjects embodied moral disarray, as “three million souls living in the confusion of all imaginable abominations, an orgy of all known immoralities, from those of Sodom to those of [the bandit] Mandrin.”33 He predictably castigated polygamy as “the most shameful immorality existing under the cover of legality.”34 Richard’s approach to native government nonetheless suggested that Muslim law, properly interpreted, could operate in the service of French domination. He detailed Qur’anic provisions protecting married women’s property and curbing the tyranny of fathers and husbands. For Richard, the French should awaken Muslim women to the rights outlined for them in the Qur’an: “No longer beaten as a beast of burden, her condition will improve in her own eyes; astonished to have rights, she will dream of claiming them in full; she will want to reign alone in the tent, and will be pleasantly surprised to learn, once again from us, that the law allows her to do so and that she can stamp out the polygamy, which is her most cruel enemy.”35 Richard suggested that the administration of native Muslim justice under proper French authority would bring about social and moral reform. French rule, he claimed, “will improve mœurs and morality with the aid of the intelligent interpretation of Muslim law itself; it will stamp out old barbarous customs, and polygamy in particular, with the help of that law.”36
Richard opposed the application of French law to Algeria’s subject populations on both moral and practical grounds. Polygamy theoretically violated the territoriality of French penal law, most pointedly its article 340, which outlawed bigamy. But the prosecution of bigamy would, in his view, test the limited resources of the French administration, especially in isolated Arab Bureaus. As in discussions of Algeria’s original judicial organization, polygamy served as a linchpin in Richard’s case. It emblematized the impossible legal conflict that would arise from any attempt to territorialize French civil law.37 As that which had to be reformed and yet could not be legally abolished, polygamy thus underlined the necessity of “leaving the Arab people its Muslim law, while submitting it to intelligent surveillance.”38 The Arab Bureau system asserted its legitimacy by claiming to ensure this regular surveillance.
This regulatory principle underwrote the Arab Bureau system and its continued application in territories that were turned over to civil rule. As Ferdinand Lapasset, an Arab Bureau chief at Ténès, explained in his 1850 brief for the institution, “Far be it from us to apply our ideas and our French form…. It is impossible to straighten a tree, which is twisted and already thick; too much force would break it. We should follow the judicial forms and customs which are already in place and straighten only that which is too egregious [mauvais].”39 Albert Javary, a captain in the Zouaves, likewise explained that “civilizing a people does not mean leading them to no longer have any religion, to no longer be held back by any moral limit.”40 Preserving “religion” was, in other words, a strategy of military administration.
Army officer Henri Pellissier de Reynaud, who headed the early Arab Bureau of Algiers in 1833 and 1834, justified this approach to Muslim law by arguing that “Arab” husbands were “not worse than others.”41 In his 1854 Mémoire sur les mœurs et les institutions sociales des populations indigènes du nord de l’Afrique, Pellissier adopted an apparent universalism: “Humanity is one; the differences that can be seen among the different societies that make them up are more apparent than real; while forms vary, the foundation is always the same.”42 He disputed painters’ fantasmatic images of Muslim women “as piled up in great number in a harem, waiting, with the abnegation of a prostitute, for their husbands to throw them a sign.” Polygamy, he argued, while “tolerated by the law, which even restricts it to four women,” was “far from taken advantage of by everyone.” Algerian women were not mere “beasts of burden.” As he sardonically commented, “It is not as if the wives of our peasants and workers pass their lives in the lap of luxury.”43 In a subsequent essay, Pellissier suggested that Muslim polygamy compared favorably to the “plurality of women” in the Christian world, which was “less decent and more productive [féconde] of disorders.”44 Viewed from this perspective, polygamy could curtail adultery and hence serve public and familial order rather than disrupting it.
This relativism illuminates military officials’ endorsement of Muslim law courts’ autonomy in 1854, when a decree removed qadis’ decisions from French appellate oversight. For army officers, maintaining separate jurisdictions avoided unnecessary confusion and sped the progress of colonization. Advocates of civilian settlement disagreed. Increasingly vocal in their criticism of the Arab Bureaus, they sought to extend French civil jurisdiction and scale back military control. Given the professional interests at stake, civilian magistrates lent settlers their support.45 In this contest, the moral evaluation of Arab Bureau heads was linked to that of the Muslim law whose “independence” they sought to preserve.
Chafing against the military resistance to free settlement, civilians contested the army’s fitness to carry out large-scale colonization. In making their case for “European” expansion, settler advocates once again mobilized a rhetoric of the rule of law against the army’s rule of force. They heaped ridicule on utopian projects of military colonization, of turning soldiers into farmers, and they charged officers who headed up Arab Bureaus with violent excess, corruption, and moral disarray.46 The 1856 trial of Captain Auguste Doineau, head of the Arab Bureau of Tlemcen, for murder and corruption encapsulated this crisis in the moral authority of the military. By bringing public attention to the purportedly illegal methods and rapacious habits of military rule, it provided a perfect occasion for civilian magistrates to expand their influence. Jules Favre, an ardently republican lawyer and politician, spearheaded the attack. He charged the army captain with having fallen prey to the vices of Oriental rule, with behaving as a “sultan” and becoming “inebriated with power,” hence wanting to “perpetuate the pleasures and profits of domination.”47
In answer to such charges of violence and mismanagement, Arab Bureau officer Ferdinand Hugonnet’s memoirs, published in 1858, depicted military officials as preoccupied with questions of justice, at once uniquely fit to adjudicate native conflicts and to carry out their reform. Hugonnet aimed to bolster his argument by correcting “current opinion” about Muslim women. While depicting Muslim “fanaticism” as an obstacle to civilizing progress, he disputed “current opinion in Europe with respect to the Muslim woman, which is based on information given in the Qur’an granting men the right to have four legal wives.” For Hugonnet, oft-cited stories of the “harems of great oriental lords” and the figuration of women as a mere instrument of men’s sensual needs contributed to these misconceptions.48 He instead assumed a position of knowledgeable detachment and expertise, over and above the inflamed romantic imaginations of artists and armchair tourists.
Like Richard, Hugonnet viewed polygamy as a sign of “a truly inferior social state.”49 And he attacked the “plurality of women” as the “greatest vice” and “radical defect” of native society. He nonetheless attributed its persistence not to “Islamic law” or even to “sensual tastes” (although he did mention them in passing), but rather to material exigency: the need for multiple women’s labor “under the tent.” This economic interpretation of polygamy in turn shaped his reformist vision. He claimed that the material progress sponsored by the Arab Bureaus, such as the introduction of grain mills and bakeries, would eliminate the need for so many women’s hands. Like many Arab Bureau heads, he hoped public works would tie nomadic native tribes to the land and inspire loyalty to French rule. The happy result, according to Hugonnet, would be that the “farmer will realize that one woman will suffice.”50
The Saint-Simonian historian, librarian, and archaeologist Louis Adrien Berbrugger made similar arguments in the Revue africaine, the journal of his Société archéologique et historique d’Algérie. As Patricia Lorcin has shown, he and the Revue more generally helped to construct the “Kabyle myth,” or myth of Berber assimilability, that rested on accounts of their difference from tribal and nomadic Arabs.51 In this colonial anthropology, Berbers were depicted as sedentary, domestic, democratic, agrarian, and even as ancient Christians—hence closer to the French.52 An article devoted to “Muslim polygamy” elaborated on this distinction by underscoring the relationship between polygamy and the nomadic existence of Arabs. Drawing out the connection, Berbrugger reported a conversation that he mediated between “a European woman” who denounced the “vile custom” of polygamy and an Arab chief, who responded that she had no idea what “a nomadic household is like.” The chief wagered that, given the labor involved, she would have “no repugnance in being joined by three legal companions, and might even regret that her husband could not have any more.” While Berbrugger assumed men’s universal desire for polygamy as “an effect of original sin,” his story countered a myth of a timeless or even specifically “Muslim polygamy.” He instead claimed that “despite the legal means and the innate penchant that men have for polygamy,” Muslims turned to it only when it was economically feasible. According to this civilizing narrative, a stable home, the division of labor, and the development of monogamous domesticity were of a piece. In attempting to understand polygamy’s “fatal causes and the means of destroying them,” Berbrugger, like Hugonnet, sought to engineer an “economic” solution to it. “Even the nomad,” he wrote, “when he settles in a town, turns monogamous, and often remains single, because being very calculating, he sees in the tally of four simultaneous households an excess of cost and bother, which he holds in horror.”53 While Berbrugger’s article supposedly answered distorted fiction with anthropological fact, it was no less of a fantasy, one that was based on the social and economic engineering of Algerian households and families.
This story helped military officers to elaborate a counter-myth that offset images of the “Arab woman” as odalisque on the one hand, and beast of burden on the other. Eugène Daumas, the head of the Directorate of Arab Affairs under Bugeaud, also recounted it in his posthumously published La femme arabe.54 Daumas, who served as an Arab Bureau head before being promoted to general, proposed to tear away the proverbial “veil” that shielded Arab women’s lives. His rhetoric thus played on the trope of sexual revelation, even as he claimed to dispense with overheated fictions. Adopting a posture of impartiality, he claimed to be fighting “reciprocal prejudices” between French and Arab in order to promote their reconciliation or “rapprochement.”55
This model of harmony downplayed religious and racial enmity, despite the army’s ongoing repression of resistance to French rule.56 Sidelining conflict, it appears as powerful compensatory fantasy. The harmonious ideal was grounded in a revisionist assessment of the “Arab” family and prospects for its reform. According to Daumas, the differences between classes of Arab women resembled that between “our rich women and poor paysannes of our countryside.”57 Their suffering was the product of ameliorable economic conditions, not tyrannical and unchanging Islamic law. While unscrupulous fathers might take advantage of their daughters, and husbands their wives, the qadi was for Daumas a protector of women’s well-defined rights. In his concluding remarks, Daumas thus praised the Prophet Muhammad for introducing progressive sexual reform by regularizing marriage and placing limits on polygamy and repudiation. In doing so, according to Daumas, “he achieved great progress. Creating what did not exist before him, he gave his people marriage and constituted the family.”58 The military officers of the Arab Bureaus imagined themselves as capable of bringing about analogous reform by drawing upon, rather than rejecting, “Muslim law.”
Unsettling Muslim Law
Civilian settlers and their advocates, by contrast, pointed to polygamy as a symptom of the failure of the Arab Bureaus—and more generally of military colonial policy. In their view, Algeria’s divided territory and distinct jurisdictions “isolated” Arab populations and worked against colonial integration. In an effort to expand opportunities for colonization, settler advocates pushed for “free” colonization by Europeans and “legal assimilation,” which is to say a uniform application of a “common law,” especially as it related to questions of property. An 1851 land law legitimated state seizures of Algerian property, while declaring tribal lands inalienable and forbidding land sales in military territory. To the consternation of civilian settlers, the law made individual land purchase difficult. In their efforts to expand the purview of French civil law, they, too, addressed the apparent legal anomaly of polygamy. It thus became a crucial node in debates over the place of Muslims in the colonial legal order.
Settler advocates were increasingly optimistic about achieving reform when Napoléon III instituted a civilian-led Ministry of Algeria headed by his cousin Prince Jerôme in 1858. Rather than resolving their differences, however, the creation of the ministry exacerbated them, intensifying conflicts between defenders and critics of military rule.59 There was no more vocal advocate for the “liberal” settler position than the ambitious young publicist and prolific pamphleteer Clément Duvernois. Published in the wake of the Doineau affair, his writings insistently argued against the “special” military administration of Algeria and its exceptional legal regime. “Religious differences” did not, in his view, necessitate “different administrations.” Positioning himself as a consummate patriot even as he assumed an oppositional stance, he urged: “Algeria is either French or it is not; if it is not French, then we should have nothing to do with it; if it is French, all the populations which inhabit it should respect our laws or leave. We should respect Muslim faith, like we do that of the Israelites, nothing more.”60 Duvernois was confident that a separation of the civil and religious aspects of Qur’anic law would be possible, along lines similar to that pursued by French Jews after the Revolution and Napoléon’s Grand Sanhedrin. In this account, the French Israélite came to exemplify an idealized separation between private faith and civil law.61
Against the military’s central planning, settlers’ liberalism applied to land and family law alike. In his reform-minded pamphlets, Duvernois invoked polygamy as an apparent obstacle to Algeria’s legal uniformity only to explain it away. Not unlike his military adversaries, he saw such marital arrangements to be primarily economic rather than sexual or “sensual.” “Tolerated” rather than “commanded” by the Qur’an, it was also not, he argued, a core religious principle.62 In his view, polygamy could not serve as a pretext for separating civilian and military authority or French and Muslim jurisdictions.63 In keeping with his liberal vision, he proposed that civil marriage be suppressed in order to allow “the Arab to marry two or three times if that is what he desires.” This was, he admitted, a rather radical solution, but it carried further advantages. Settlers from diverse backgrounds could also marry according to their own national laws. In doing away with oppressive military rule, Algeria would, he proclaimed, finally become “a land of liberty, the refuge of all those who love to breathe freely.”64 Duvernois further argued that increased European settlement and “industry” in “Arab territory” would reduce women’s labor, hence eliminating polygamy’s economic causes. The military and settler positions coincided on this point, but remained opposed in their projected solutions.
Critics of Napoléon III, such as Jean-Gabriel Cappot de Feuillide, depicted the persistence of polygamy as a symptom of despotism. In his view, the Arab Bureaus’ effective separation of Arabs and Europeans artificially reinforced differences.65 Feuillide instead advocated legal assimilation—the universal application of French law—as an “immediate agent of Franco-Arab fusion.” His claims were manifestly republican: “Where there is unity of law, there are equal rights; where this equality reigns, it matters little if there are diverse races: there will soon be a single nation.”66 “Israélites” again provided a model. As he explained, “The Muslim’s inner being [for intérieur] will remain in submission to the Qur’an, just as the Israelite’s is to the Bible; but as in his case, the Muslim will be submitted to French law for his external being.”67 According to this secularizing template, the inner religious self would be cleaved from legal personality. Dismantling Arab tribes, he argued, would meanwhile promote private property and, by reducing polygamy, encourage intermixing—including marriages—with “Europeans.” In this fantasy, women would “complete Franco-Arab fusion.”68
Similar to these advocates of civilian settlement, French magistrates criticized the system of divided jurisdictions and dangerous independence of qadis under the 1854 law on judicial organization. In the wake of a series of corruption scandals, jurists pressed for more French appellate oversight of Muslim law.69 The contrast between military and civilian positions was most extreme in Oran, the seat of the worst scandals involving the independent Muslim judiciary. At one end was the head of the division of Oran, General Jean Louis Marie Ladislas Walsin-Esterhazy, who argued forcefully against extending civil administration and law by promoting the reformist potential of Muslim law, which in his view “offered, to anyone who knows how to interpret it, precious texts for the amelioration of Muslim society.” He regarded it as “the most useful tool for bringing about the progress of these masses toward our civilization.”70 By contrast, the prefect of Oran wanted to do away with the Muslim appellate council, the Majlis, entirely, replacing it with a French tribunal.71 As depicted in a contemporary photograph by Félix Moulin, these councils appeared to operate independently of French oversight or intervention.
The judicial reform adopted in 1859 made concessions to these advocates of civilian rule. Drawn up by Jêrome’s replacement, Prosper Chasseloup-Loubat, the ministry’s report denounced how the “retrograde” disjuncture between French and Muslim jurisdictions under the 1854 decree created “yet another obstacle against the assimilation of the two populations.”72 By reinstituting French appellate oversight of Muslim courts, the 1859 reform curbed their autonomy, while also maintaining their separation from French civil jurisdiction. In these fraught debates about Algeria’s legal organization, “polygamy” increasingly symbolized how and whether “Muslims” fit into the categories of French law.
Property and Propriety
This flurry of reformist activity renewed conflicts over France’s imperial philosophy and strategy, conflicts that refracted contradictory tendencies of the Second Empire itself: between centralization and decentralization; authoritarianism and liberalism; clericalism and anticlericalism. With the suppression of the Ministry of Algeria in 1860, Napoléon III returned Algeria’s government to military hands while elaborating a new, apparently conciliatory policy of the “Arab Kingdom.” Drawing on the assistance of advisers such as Ismayl Urbain, Ferdinand Lepasset, and Frédéric Lacroix, he developed new policies that defined and delimited the extent of indigenous rights, while supposedly securing “Arabs” from the rapacious designs of civilian settlers. After traveling to Algeria in 1861 and 1865, he initiated two major legislative reforms, the sénatus-consultes of 1863 and 1865. Together these laws established a framework for the government of Algerian property and personhood. Advocates of civilian settlement criticized these legal frameworks because they maintained centralized state control over the legal status of land and its acquisition. The problem of polygamy continued to inform these debates over Algeria’s “legal assimilation.”
The Saint-Simonian intellectual Urbain was one of Napoléon’s closest advisers on the Algerian question. After traveling to Egypt in 1833 with Prosper Enfantin, Urbain had converted to Islam and married a Muslim woman.73 Committed to defusing the “Eastern Question,” he was a longtime advocate of tolerance between Christians and Muslims.74 In Algeria, he defended the native population against aggressive claims by settlers, most famously in a pseudonymous pamphlet, “Algeria for the Algerians.” Written under the name Georges Voisin in 1861, it took distance from the former Ministry of Algeria’s pro-settler policies, including the 1859 justice reform.75 His intervention spurred a pamphlet war between advocates and critics of Napoléon’s policies that continued over the course of the decade.76
In contrast to “indigenophiles” such as Urbain, settler advocates like Clément Duvernois argued for a “common law” (droit commun) in Algeria. Their rhetoric of postrevolutionary legality aimed to abolish the “feudal” privilege that, in their view, was maintained by Algeria’s exceptional legal regime. In its place, they sought “the application to Arab society of the principles of 1789; rights of property, the abolition of la dîme and la corvée; the abolition of exceptional jurisdictions, the abolition, in a word, of feudalism, and all its consequences.”77 This proposed “common law” would, they claimed, facilitate the Europeans’ purchase of “Arab” land and effect a secularization of Muslim law. As one author explained, “It is only a matter of separating the spiritual from the temporal in the Qur’an; property must be submitted to the Napoleonic Code.”78 These arguments in favor of a “common law” did not, however, cast polygamy as an inassimilable feature of native religious difference. They actually minimized its significance, while actively promoting the civilizational advantages of French property law.
These claims became more pointed in response to the 1863 sénatus-consulte, which promised to protect collective property (classified by the French as arch), while introducing “individual” property holding to a limited extent. Its provisions presumed that communal property or native “indivision” was “not only in conformity with their seminomadic habits, but also with their religious precepts.”79 Indigenous real estate, under this regime, remained a matter of religious law. While purporting to “preserve” tribal property, the law’s numerous conditions and exceptions effectively promoted its loss. The translation of indigenous classifications into French legal categories and norms had particularly disruptive effects.80 Opposed to the legislation’s purported protection of native land titles, settler advocates continued to press for the creation of individualized property ownership, claiming that private property was “the most powerful means of civilization, of fusion between the two races, and of progress.”81
Debates over the law in the spring of 1863 mobilized settler opposition to Napoléon’s policies, giving rise to petition campaigns, virulent press coverage, and more pamphlets. Auguste Warnier, the former Saint-Simonian military doctor who became a large Algerian landowner, vigorously criticized the legislation and its “indigenophile” defenders in his 1863 pamphlet, L’Algérie devant le Sénat. As part of his effort to defend the extension of the Civil Code to indigenous property, Warnier promoted European colonization’s positive effects, especially on Algerian women. Economic modernization introduced by European grain mills and goods reduced women’s labor “under the tent”: “as a natural consequence, there has been a decrease in polygamy; a single woman is now sufficient to carry out household tasks.”82 While optimistic about these purportedly civilizing effects of European settlement, he also recognized how “serious the substitution of the Napoleonic Code for customary law” would be, not least in its effects on the “constitution of the family.” At the same time, he suggested (as he proposed ten years later in the 1873 property reform) that “the application of the Napoleonic Code, in limiting it to property, would not hurt any of the fundamental bases of Islamism.”83 On this view, property could be removed from “Muslim law” jurisdiction without doing damage to Muslim religion.
Clément Duvernois’s brother, Alexandre, a former Arab Bureau official and translator, made a similar argument in favor of French property law in a pamphlet purportedly penned “from a Muslim point of view.” Calling for individualized property titles to be instituted throughout the rich agricultural region of the Tell, it claimed that it was unjust to deny Algerians access to French law, while Napoléon’s government sought to “take them back to Muslim law.”84 This ventriloquized text begged that Algeria be placed “under common law immediately, except for that which concerns l’état-civil, marriage, and repudiation.” While family matters appeared here as a durable core of Muslim legal difference, Duvernois did not make that difference into an obstacle to further legal reform. He also proposed that Algeria’s native inhabitants could be recognized as “French subjects,” albeit without the “rights of citizens”—precisely the framework adopted by the sénatus-consulte in 1865.85
The question of extending French property law to Algeria thus intersected with contemporary arguments about the “Frenchness” of Algerian natives and hence how “French law” would apply to them. The General Councils of the departments of Alger, Oran, and Constantine regularly discussed the matter in their meetings. Alongside calls to facilitate naturalization requirements for Spanish, Italian, and Maltese settlers, the departmental governing bodies sought legislation that would allow individual Algerians to become French citizens. In 1860, the president of the General Council of Alger, Pierre-Charles de Vaulx, who had been named the first president of the Cour imperial d’Alger in 1858, outlined a plan of “voluntary” naturalization for both “Europeans” and native Algerians.86
De Vaulx wanted to preserve the exclusivity and dignity of French citizenship by attracting “choice” European elements. He meanwhile proposed an “individualized” path for Jews and Muslims. He clearly stated that Muslims did not immediately qualify, because citizenship was “incompatible with the state of their society, which essentially differs from ours in its mœurs and its habits, as in its constitution.”87 While acknowledging the achievements of indigenous Jews, he did not believe that their “personal status” should be collectively abolished either. The voluntary system that he proposed required individuals to adopt French civil law.88
Answering the requests for collective “naturalization” made by Jewish delegates to the General Council, this “individual” route to citizenship also addressed the concerns of Muslim representatives who resisted it. Concerned about further encroachments on an already limited set of legal rights, Muslim representatives claimed that naturalization, even if voluntary, would violate their “religious” law. As one Muslim council member explained, “The Muslim who becomes naturalized must accept the French Civil Code and will hence be obligated to renounce our law, which is, above all, essentially religious.” This delegate claimed polygamy as a stumbling block to “naturalization.” He asserted that the urban Maure was monogamous (“attached to the society of one woman, who shares her life with him, and faithfully fulfills her duties as spouse and mother”). By contrast, he claimed, the “nomadic Arab who lives in a tent” posed a problem. It would be impossible “to convince him to abandon a condition that the law does not prohibit and that is so ensconced in the mœurs of the country where he lives.”89 Mirroring the logic of French juridical thinking, the representative strategically used the nomadic Arab’s presumptive polygamy to reject naturalization and the implicit extension of French law.
Jews and Muslims were in the minority on the council, however. Denouncing the recalcitrant minority’s “illiberalism,” the majority adopted a measure in favor of individual naturalization by a vote of 16–4. The council’s “liberal” solution was based on voluntarism.90 Appealing to this same idea of individual will, the 1865 sénatus-consulte eventually made choosing the Civil Code a precondition of full citizenship.
The Legal Problem of Jewish Personal Status
While their status as “French” remained a question, Muslim and Jewish Algerians could contract under French civil law, an option that was outlined in the September 26, 1842, ordinance on judicial organization. Jews did occasionally make use of the provision, especially given that the same ordinance obliged them to appear before French courts, even though matters of their civil status [l’état civil] continued to follow “religious law” (article 37).91 French judges began to hear Mosaic law marital and inheritance cases and hence to adjudicate questions that were foreign to French civil law—including polygamy, levirate marriage, and repudiation. This delicate arrangement created confusion between the required forum (French tribunals) and the litigants’ “choice of law.” Algerian Jews’ “personal status” thus emerged as specific site of legal struggle.
Instigated in part by metropolitan Jewish reformers, many of the first questions about the legal status of Algerian natives concerned not Muslims, but Jews. In metropolitan France, the secularization of family law was integral to Jewish national inclusion and citizenship. The Grand Sanhedrin convoked by Napoléon in 1807 eliminated Jews’ “special customs” and framed submission to French civil law as a preeminent religious duty. The Assembly of Jewish Notables declared polygamy to be a violation of the “mœurs of Nations.” They also renounced repudiation and required all Jewish marriages to be conducted before a French civil officer.92 This model of Jewish legal assimilation constructed a division between a “private” realm of religion and a universal “public” law of the state, instantiated by the Civil Code. It created and symbolized that split by asserting state sovereignty over family matters.93
Even after the rabbinic tribunals had been abolished, Algerian Jews were not subject to this same regime, since the colony’s judicial organization maintained their “religious law” for questions of personal status. For metropolitan Jews who took up a “civilizing mission” on their behalf, family reform through the application of French civil law contributed to a broader project of social and moral uplift.94 Questions about the difference of Jewish marriage law, and polygamy in particular, played a significant role in discussions of Algerian Jews’ assimilation, even when the cases were not overtly focused on “family law.”
No one better emblematized Algerian Jews’ ambivalent relationship to French law than Elie-Léon Enos, who fought a protracted struggle for admission to the bar (the “Ordre des avocats”) in Algiers after having been a member of the Parisian order. In 1862, the appellate Cour impériale d’Alger (Imperial Court of Algiers) took up the question of whether Enos, as a “nonnaturalized” Algerian Jew, possessed, if not citizenship, then at the very least the requisite civil and national status or “qualité de Français” to practice law.95 The Ordre claimed that Enos was not French but a “subject of the French nation,” a status that was at once “foreign and inferior to that of citizenship.” The Imperial Appeals Court, by contrast, confirmed Enos’s French nationality or qualité de Français as an effect of Algeria’s annexation by France. It upheld his right to work as a lawyer, even if he could not become a magistrate.
The decision, written by President de Vaulx, created a sharp distinction between subject and citizen, grounding this political division on cultural differences of “religion, mœurs, the constitution of marriage, and the organization of the family.” Algerian natives’ “exceptional” rights were, it held, incompatible with “the great principle of the equality of the law that the revolution of 1789 inscribed at the head of our institutions.” For de Vaulx, “the rights conferred by Muslim and Israélite personal status cannot be reconciled with the duties imposed on French citizens, duties whose yoke cannot be shaken without contravening the principles of public order and even those penal laws, under whose double protection the French nation lives.”96 Implicitly targeting polygamy, de Vaulx here upheld marital monogamy as a symbolic “yoke of citizenship.”97
The Ordre des avocats refused to accept the decision, appealing it to the Cour de cassation. In making this case, the Ordre’s counsel Aubin asserted that the “incompatibilities” between “Muslim and Mosaic law” and “French civil law” disqualified Algerian natives from Frenchness as well as from citizenship. For Aubin, there was “no legal difference between Muslims and Israélites; they are equally far removed from the French.” By contrast, Enos’s lawyer Philippe Larnac sharply distinguished Mosaic law from Muslim law, advocating the inclusion of Jews, but not Muslims, as “compatriots.” He based his argument on French Jewish history and the fact that Judaism, like Catholicism and Protestantism, was practiced on French soil “without offending its laws, public order, or good morals.”98 The same could not be claimed for Islam.
The Cour de cassation ultimately found that Israélites, and indeed all Algerian “indigènes,” were French nationals. They were hence apt to serve as lawyers, even if they were not full citizens. This difference-splitting decision did not meet with universal approval. One account by Auguste Bourguignat in the jurisprudential Recueil Sirey lambasted the court’s logic by focusing on how Mosaic and Muslim law differed from French family law: “Do we need to recall that the family, as it is constituted by these laws, which are exclusively religious, is not submitted to the same rules as ours; that on so many points, native mœurs are repugnant to our public morals; and that such deeds are recognized as legitimate in the eyes of the Talmud and the Qur’an, while they are rejected by our laws.” Bourguignat cited the myriad offending differences—repudiation, inequitable inheritance laws, annulment based on impotence, and, of course, polygamy—as so many legal offenses that demonstrated that for “Algerian natives” the “good morals of private life are not what we understand the word civilization to represent.”99 The sexual difference of their law wed Algerians to a regime of legal exclusion.
Enos responded in the Journal de jurisprudence de la Cour impériale d’Alger, claiming that by virtue of the law of conquest, Algerian Jews should be considered not only as subjects, but as full citizens. In his view, this inclusion would be much more consistent with French legal principle, citing de Vaulx’s own language regarding the “principle of equality before the law” of “the revolution of 1789” to make the case.100 Ultimately, the argument about the radical disjuncture between subject and citizen prevailed, in jurisprudence and eventually in law.
The presumptive cultural differences highlighted by the Enos decision resonated with the concerns of French magistrates who heard Mosaic law cases. Significant jurisdictional confusion arose after an 1851 decree encouraged Jews to marry before French civil officers rather than rabbis.101 The ambivalent implications of the decree would be seized upon by litigants who tried to claim that they had contracted under the Civil Code. Lower courts like the Tribunal of Algiers often affirmed the choice of French law, while the appellate Court of Algiers was more cautious. Its decisions, many of them presided over by de Vaulx, were guided by two connected principles: on the one hand the protection of indigenous belief and mœurs, and on the other the preservation of the “dignity” of French citizenship.102
These cases puzzled over whether appearing before the French civil officer represented a choice of forum or a choice of law. Algerian Jews (and their lawyers) took advantage of this ambiguity. By seeking out the protections of French law, husbands and wives made Jews’ marital affairs a concern of public order for metropolitan reformers, journalists, and jurists. At stake in these cases was whether personal status could be decided by choice.
Many Mosaic law cases focused on divorce. For example, in 1861 Mardochée Tingé claimed that his marriage, while conducted by the civil registrar of Algiers, was contracted under the Mosaic law that allowed him to divorce his sterile wife, Messaouda ben Kenoun. She meanwhile claimed the protection of French law, which forbade divorce. The Tribunal of Algiers’s decision refused Tingé’s demand, claiming that to allow the marital bond to be broken by recourse to another law would be “something strange and abnormal that a French tribunal could not endorse.” Finding for his wife, the tribunal upheld the integrity and supremacy of French law.103
Men also claimed the protections of French law. The contest between Simon Courcheyia and Guenouma Strock, for example, revolved around his sexual impotence—a condition that no longer constituted grounds for annulment in French civil law.104 The couple had married before the civil registrar of Oran in 1854. When Guenouma sought a Mosaic law divorce, Simon claimed French law status.105 While the Tribunal of Oran sided with Simon, the Appeals Court of Algiers resisted the lower court’s assimilationist argument. It refused to accept that the couple had renounced their personal status simply by appearing before a French official. After his appeal to the Cour de cassation, Simon’s case was reconsidered by the Court of Aix in 1864. In its view, the civil registry officer had indeed spoken in the name of French civil law.106 A member of the prominent Crémieux family, acting as Simon’s lawyer, convinced the court that “the progressive assimilation of native Israélites is evident in the thought of the French government.” Reflecting the reformer’s assimilationist line, the decision claimed that the couple’s marriage before a French official demonstrated their “will to place that contract under the empire of French law.” Refusing to sanction Guenouma’s divorce claim, the Supreme Court presented the Israélites’ assimilation as already well on its way.107
While these decisions confirmed Algerian Jews’ legal assimilation, the Appeals Court of Algiers maintained their Mosaic law status in subsequent cases. In the 1865 case of Judas Zermati, for example, it explicitly maintained polygamy as a protected practice under Mosaic law. Appearing first before the Tribunal of Algiers in 1862, this acrimonious trial opposed the children of Zermati’s first marriage to Zermati himself, his second wife, and their children. Zermati’s first marriage had been contracted under Mosaic law to Ricca bent Zermati in 1832. She and her family had “looked askance” at his subsequent second marriage to Ricca Tabet and “did everything in their power to prevent Zermati from contracting the new union.”108 Five of the six children of the second marriage were not declared to be his on the civil registry, appearing only as “enfants naturels.” When Zermati approached the Tribunal of Algiers in order to recognize them, the children of the first marriage vociferously contested the second union’s legality, given that it had been conducted in clandestine circumstances.
Resentment-filled accusations of adultery and concubinage multiplied in the course of this rancorous legal struggle over filiation and inheritance. The contest took on wider significance in the context of debates over Algerian Jews’ legal status. As arguments in the case made clear, the uncertainty of the second marriage resulted from communal misgivings about Zermati’s bigamy. The Tribunal of Algiers was sympathetic to the children of the first marriage, and its decision was partly based on a refusal to give an apparent juridical “consecration of polygamy.” According to the lower court, it was the “duty” of French tribunals to outlaw “all that in mœurs and customs is contrary to morality and public order.” Polygamy, the decision recalled, was outlawed not only by the Civil Code, but also by the Penal Code. As a matter of public order, the principles at stake were of “greatest interest to the State, the family, and good morals.”109
Described as a “négociant” in the published trial transcripts, Zermati was a wealthy landowner as well, so he had ample resources to pay for skilled legal counsel on appeal. His lawyer was Jules Chabert-Moreau, who had made these suits something of a specialty, having also acted as counsel in the Courcheyia and Enos cases, while Ricca Tabet was represented by Joseph Guérin, and the six children from the second marriage, all minors, were represented by Eugène Robe, the prominent editor of the Journal de jurisprudence de la Cour impériale d’Alger. The case tellingly received extensive coverage in Robe’s journal, which reproduced the argument made in Zermati’s favor in its entirety.
In making his case before the court, the general counsel of the Cour d’Alger Benjamin Mazel expressed reluctance at granting polygamy’s legality, not only for Muslims, but also for Jews. He acknowledged Algerian Jews’ increasing claims for assimilation, noting that bigamy had “become shameful” for them, in implicit contrast to Muslims. Despite these caveats, he asserted that “from a purely doctrinal position” bigamy was legal, based on the history of Mosaic law, the Convention of 1830, Algeria’s subsequent juridical organization, and rabbinical opinion consulted in the case.110 With the dispositions of the 1807 Grand Sanhedrin applicable only to “European,” and not to Algerian Jews, the proper resolution of this messy matter awaited the attentions of “imperial wisdom.”111 Following this argument, the court upheld the integrity of Mosaic law for Jews’ “personal status,” explaining that, until new legislation was adopted, tribunals would continue “to apply Mosaic law, just as, every day, in instances between Muslims, they apply Muslim law, despite the sharp differences that divide these laws from French civil law.”112 Only legislation could “regularize” Algerian Jews’ confused situation.
Advocates of assimilation took up this call to reform. The Jewish Consistory, for example, actively supported Casimir Frégier, the president of the Tribunal of Sétif, who published widely on the oddities of Algerian law.113 Frégier made a case for the “special” character of Algerian law, but also argued that it should be organized and codified. In his view, this “Janus-faced” law was turned “today toward the past, tomorrow toward the future, here toward the Orient, there toward the Occident.”114 Frégier drew clear distinctions between native Jews and Muslims, citing their different attitudes toward assimilation and most notably their imagined attachment to polygamy as an index of that difference. He proclaimed: “Although they [Jews] too practice or can practice polygamy, have they, like the Muslims of Algiers, claimed, by way of their representatives on the Conseil général, a ‘right to a harem’?”115 For Frégier and other advocates of Jews’ legal assimilation, Muslims’ greater attachment to polygamy justified the Jews’ qualification for French citizenship.116
Frégier meanwhile reserved his harshest judgment for misguided jurisprudence. He opposed the recent court decisions that addressed individual cases and argued for collective naturalization instead. As he explained, Jews’ “personal status” entailed an established group of “rights, capacities, qualities, and attributes.” Drawing on ancien régime jurists such as Robert Pothier and Philippe Merlin, he underscored that legal personality should not be confused with individual will. Following Roman law, legal personhood could not be simply cast off by will or convention. The inalterability of “personal status” that was the cornerstone of ancien régime law had been upheld by article 6 of the Civil Code.117 Allowing Algerian Jews to alter their legal status simply by appearing before the civil registry clearly violated these terms of legal personhood.
Frégier did not deny that the laws of Algerian Jews contained “precepts and interdictions which are contrary to our ideas, our institutions, our laws, and even our ordre public.”118 In his view, however, it was “vain to cry out against the immorality, in the eyes of French law, of the effects of Israélite marriage, such as polygamy, divorce, etc.” This “immorality” was, in fact, written into the hybrid structure of Algerian law: “Hasn’t Algerian law allowed for these effects? If so (and how could one deny it), then the law itself should be put on trial.”119 His volume on Les juifs algériens was intended to do precisely that.
In his text devoted to the confused juridical condition of les indigènes algériens, a lawyer at the Cour d’Alger, Aimé Poivre, likewise called for the reform of Israélite civil status and marriage.120 He supported Algerian Jews’ legal assimilation but also believed, like Frégier, that this transformation could come about only by way of comprehensive legislation, not piecemeal jurisprudence. He too was skeptical of the decisions in the Tingé and Courcheyia cases, which made Algerian Jews’ status individually mutable. For Poivre, these cases undermined the sovereign hold of law, which “imposes itself on persons, without leaving them free to seek it out or abdicate it.” In his view, this voluntarist conception of civil status would “facilitate the intrusion into each state of subjects who could be dangerous for it.”121
Contradictory jurisprudence regarding Jews’ personal status galvanized metropolitan reformers as well as local advocates to pursue a legislative solution to the confusion created by the ambiguities of Algerian law. The end result would be the sénatus-consulte of 1865.
The Impossible Choice of Law
Advocates of assimilation were optimistic that a much-awaited reform would follow in the wake of Napoléon III’s second visit to Algeria in 1865. Rabbis in Algiers and Constantine called on the emperor to redress a legal situation in which “marriage, which is the basis of the family, has become a source of disruption and scandal.”122 The 1865 sénatus-consulte was designed, in part, to remedy the disordered state of Jewish marriage law.
Following the departmental councils’ recommendations and the jurisprudence in the Enos case, the legislation outlined procedures for the “naturalization” of foreigners as well as indigenous Muslims and Jews. It confirmed that Muslim and Jewish natives of Algeria were French nationals. It also adopted the General Council of Alger’s “liberal” legal solution. According to its terms, Muslims who followed their “religious law” and Jews who maintained their “personal status” law would remain subjects rather than citizens. Full citizenship, by contrast, entailed a renunciation of local civil status and the adoption of the Civil Code in its place.
For the legislation’s sponsors, the conflict between local codes and French citizenship was a matter of public order. For the conseiller d’état Louis-Hughes Flandin, polygamy was a particular obstacle. In his view, the precedent set by the Grand Sanhedrin explained why neither Muslims nor Jews who continued to claim their personal status could be citizens.123 Senator Claude Delangle’s presentation likewise highlighted the conflict between polygamy and French law as a question of public order. In his view, its renunciation was a matter of individual choice. As Delangle explained, “If, from the status that they abandon are derived rights and customs which are incompatible with public decency, with morality, with the good order of families, these rights are abolished [anéantis]. The acceptance of the quality of French citizen constitutes the most formal abdication. There cannot exist on the soil of the nation [patrie] citizens who have contradictory rights.”124 By conceiving of polygamy as a privilege, Delangle opposed indigenous legal status to the “equal” rights of citizens. Citizenship required male citizens to relinquish special sexual rights. According to this exti-mate logic, Algerians could not reasonably have access to a sexual privilege that was denied to French men. The settler advocate Wilfred de Fonvielle elaborated on this principle, drawing on an implicitly republican argument that presented Algerian men’s polygamy as an aristocratic privilege: “the right to a harem, that is what separates the great Arab chiefs from our civilization. A people has to be enslaved in order to permit a few hundred aristocrats to escape from the bonds of monogamy that are uncomfortable [liens souvents gênants] even for the best French men.”125
Defenders of the sénatus-consulte embraced this framework and the deliberate “choice” that it offered indigenous Jews, Muslims, and foreigners alike. In his commentary on the legislation, Joseph Sartor, a lawyer from Oran, upheld the logic of sexual sacrifice as a crucible of citizenship. Celebrating the integrity of the Civil Code, he rejected any “conciliation” between the “unity and magnificent linkages [enchaînement] of our legislation” on the one hand and the “either rival, or bastardized laws” on the other.126 According to Sartor, opting for French law was premised on and performed by the renunciation of polygamy. “Isn’t it grand [beau],” he commented, “to see a man, in the presence of a passion that pushes him and of a duty, which in turn imposes itself on his spirit, break with what custom and religion allow him to do with difficulty, in order to follow the sage laws of reason.”127 Sexual self-renunciation conferred and confirmed the dignity of French citizenship.
Other politicians and publicists criticized the framework of individual sexual sacrifice as unrealistic. The Saint-Simonian economist Michel Chevalier drew on the example of the Grand Sanhedrin and argued instead for a “collective” measure to eliminate polygamy, which he viewed as a “source of radical inferiority, the cause of debasement, and an obstacle to progress.”128 Less optimistic about the prospects of such reform, Chevalier’s parliamentary colleagues ridiculed his vision for Algeria’s legal assimilation. Provoking “general hilarity” in the Assembly, Comte General Aristide de la Ruë explained why the project was doomed to failure: “If we propose to them that they can become French citizens at the price of this sacrifice, to not be able to take a young wife when the one that they have has gotten old, they will not be very tempted to use this right under such a condition.”129 Advocates of Algeria’s legal assimilation, especially among the settlers, were inclined to agree.
Other critics of the 1865 sénatus-consulte used a similar logic to attack the privileges left in place by the law. Polygamy again served as a linchpin of their arguments against granting natives access to civil and military posts. For liberal-leaning senator Vicomte Victor Ambroise Lanjuinais, it maintained unfair legal distinctions that violated “all notions of justice and reason.” He protested against granting rights to Algerian natives that were denied to citizens. Muslim sexual privilege exemplified that difference: “In this way, everyone knows that under Muslim law, every Muslim can have several legitimate wives and he can, in addition, have an indefinite number of concubines inhabiting his conjugal home. That’s Muslim law.”130 Drawing on Delangle’s argument about the equality of citizens before the law, Lanjuinais held that all those who possessed the “qualité de français” should be forced to follow the Civil Code.
Assessments of the sénatus-consulte all ultimately converged on this point. They viewed the “right to a harem” as an exorbitant and aristocratic sexual privilege that could not be tolerated within the legal framework of French citizenship.
While the sénatus-consulte formalized the distinction between French colonial subjects and French citizens, settlers and assimilationist Jews remained dissatisfied with the law and pressed for the extension of civilian power and, with it, the Civil Code.131 Settlers sought this reform not to eliminate the privilege of polygamy, but to submit Algerian Muslims to French property law, while preserving, as was the case with Jews, their “personal status.” Writing in his newspaper L’Akhbar, Joseph Guérin responded skeptically to calls like Chevalier’s for the suppression of polygamy, which, he suggested, went too far: “We wouldn’t have asked for so much. We would have wished that in becoming French, Muslims, instead of remaining entirely under Muslim law, would be under French law for all that is outside of their personal status.” According to the settlers’ preferred argument, property law reform would prepare the subsequent progress, which was “more complete and more desirable.”132
Unsatisfied with the results of the sénatus-consulte, the General Council of Alger resumed discussions of “naturalization” in 1866. Its new head, Augustin de Vialar, focused on social conditions rather than “religious law” per se as the source of indigenous difference. Citing fellow council member Berbrugger’s social and economic analysis, he presented polygamy as amenable to eventual reform. In his view, polygamy was “excusable for current Arab life” and even analogous to “certain tolerances that civilization is obliged to support in order to preserve marriage and family honor.” In other words, he saw polygamy as roughly equivalent to adultery and prostitution. According to this social logic, Vialar suggested that “in order to abolish divorce and polygamy, we need to make certain causes disappear before we can try to abolish their effects.”133 Property reform was one such technology of social reengineering.
Settler advocates were willing to compromise the purported purity of French civil law in order to legally assimilate Algerian property. The prolific Duvernois again proposed that while a “single law” should be introduced in Algeria, all those who were not French citizens should be permitted to marry according to the precepts of their religion.134 An opinion column in L’Akhbar by Arnold Thomson likewise suggested, “Why don’t we introduce a moderation into our law that will satisfy the practices of the people we want to assimilate?”135 One tract attacking how Muslim law limited free property transactions between Europeans and natives minimized the significance of polygamy, comparing it positively to adultery. “I don’t know,” he wrote, “if French customs are more moral than those of Arabs, but at the very least they are more expensive and, from the point of view of the surveillance of such women, I prefer the Oriental system.”136
Settler attacks on government policy became even more vocal in the wake of the massive famine of 1868.137 The crisis provided an occasion to again denounce the Arab Bureaus. Advocates of civil government claimed that maintaining the native population’s primitive customs, habits, and laws, by blocking assimilation, had contributed to the devastation. The editor of the Independant of Constantine, Jules Vinet, was typical in this respect. In his view, “Muslim” and “French” law were largely comparable, except for matters of “marriage and more generally personal status.” Drawing on Frégier’s work, he argued in favor of “placing the Arabs under the Civil Code, while reserving for them certain special questions, such as divorce and polygamy.”138 These matters aside, wrote Vinet, “there should be only one right [droit] to recognize, and one law [loi] to apply, French right, French law.”139 He proposed the creation of a “statut personnel musulman” law that would be cleaved from the “statut réel.” Doing so would, effectively, separate family law from real property in Muslim law.
A bailiff from Mascara and self-proclaimed expert on Islamic law, François Cadoz, outlined such a system in his critical commentary Droit musulman Malékite. Written after the institution of civilian rule in 1870, Cadoz’s pro-settler text was designed as a guide for administrators. It argued that Muslim law was amenable to “civilizing” transformation. More specifically, he claimed that “the principles of Muslim law and Islamic dogma are not at all opposed to the application of the Civil Code to the Arabs of Algeria.” He advocated for the extension of French civil law to fertile areas that had been targeted for colonization. At the same time, he suggested that “Muslim personal status” would need to remain in place “for a long time,” if only for questions of “the status of persons, juridical capacity and incapacity, guardianship, marriage, divorce, wills and inheritance.”140 This limited legal assimilation would not entail political rights.141
Cadoz meanwhile approved Jews’ collective naturalization by the Crémieux Decree in 1870. The measure realized the civil and political assimilation of Jews that had been long sought by metropolitan reformers, including by its noted author, Alfred Crémieux. For Cadoz, that inclusion assumed Algerian Jews’ adoption of French “family values.” As we have seen, legal debates in the 1860s had worried over the differences between Jewish law and French law. In 1871, Cadoz depicted “Jewish Algerian youth” as “deserving of all of our sympathy.” In his account, “the men are hardworking, economical, good fathers and husbands; the women are virtuous and excel at domestic tasks; many of them, by their education, their talent, their simple and elegant garb, could rival French women in salons.”142 Subsequent critics of the decree disputed these claims about the extent and success of the civilizing mission on Algerian Jews. What matters here, however, is how Cadoz closely associated Jews’ new political rights with the abolition of Mosaic personal status law and its polygamy.143
As we will see in the next chapter, it was at this same moment that “Muslim personal status” assumed legal existence. The shift from military to civilian rule that accompanied the advent of the Third Republic in Algeria created a new opportunity for property law reform and the extension of French civil law to areas targeted for colonization. This juridical innovation assumed legal force in 1873, as a result of the reform drawn up by longtime settler advocate Warnier. Following the logic laid out by settler publicists and jurists, it instituted the separation of “personal status” from a territorialized real estate law based on the French Civil Code.
Within the framework established by the Civil Code, the statut personnel regulates persons, while the statut réel regulates transactions of landed property. Their domain of application differs accordingly: one is national, while the other is territorial. Their respective objects and jurisdictions are both mutually constituting and mutually exclusive.144 Because Algerian natives had French nationality after 1865, their personal status had an uncertain ground. Algerian Jews, who sought the protections of French law, exploited the legal and political conflicts between their status, their religion, and their nationality. The resulting debates about Mosaic law focused jurists’ attention on polygamy as a violation of French civil law and its “public order.” These debates provided a vocabulary and legal framework for denouncing polygamy as incompatible with French citizenship. This was as true for Muslims as it was for Jews.
The legislators’ discussion of Muslim polygamy thus appeared to parallel that of Jewish polygamy. But there was a crucial difference between the seeming legal equivalence of the statut musulman and the statut personnel israélite: property law. As I have suggested here, discussions of Muslim polygamy were historically linked to disputes about property and colonization that were virtually absent from discussions of the Algerian Jews’ legal situation. While the language of polygamy as a moral and legal scandal was shared, the stakes involved in its mobilization by Arab Bureau officers and advocates of settler colonization were quite different from those of Jewish assimilationists.
In order to understand how polygamy came to instantiate the incompatibility of Muslim personal status with French citizenship, we must attend to the transformations that took place, not only in Algerian citizenship and nationality law, but also in property law. We have seen that in the 1850s and 1860s, settler advocates contended that property law reform would effect the moral and social reform of Algerian natives, including an eventual disappearance of polygamy and a purported fusion of populations. In framing polygamy in economic rather than in religious terms, they saw it as amenable to social reform. Some settler advocates were even willing to grant Muslim marriage an exceptional status in order to otherwise universalize French civil law.
Once a partial territorialization of French property law was achieved in 1873, settler interest in Muslim assimilation predictably all but vanished. Instead, the political preservation of the purity of French citizenship—and with it French law—became paramount. In the process, the newly defined Muslim personal status and its presumptive “right to polygamy” came to represent an extimate exception that both confirmed French legal sovereignty and the exclusive dignity of French citizenship.
1. Projet d’Ordonnance royale, art. 34, in AN BB30/616. For the final version see Bulletin des lois du Royaume de France, 2e partie, 1re section, no. 324, 1834.
2. Rapport, Ministère de la Guerre, “Observations sur le projet d’ordonnance royale relative à l’organisation de la Justice en Afrique,” in AN BB30/616.
3. “Discours préliminaire,” in Portalis, Discours, rapports et travaux, 22.
4. “Exposé des motifs,” ibid., 173–74. On Oriental despotism see Grosrichard, Sultan’s Court, 114–19; Dobie, Foreign Bodies.
5. On the sexual and social contract imagined as a sacrifice of primitive patriarchy and polygamy see Pateman, Sexual Contract.
6. “Exposé des motifs,” in Portalis, Discours, rapports et travaux, 160.
7. Gong, Standard of “Civilization”; Lorca, “Universal International Law.”
8. Flandrin cited in Estoublon and Lefébure, Code de l’Algérie, 1:303.
9. Henry, “La norme et l’imaginaire”; Brett, “Legislating for Inequality”; Blévis, “Les avatars de la citoyenneté”; Saada, Empire’s Children; Barrière, Le statut personnel des musulmans; Merle, “Retour sur le régime de l’indigénat”; Shepard, Invention of Decolonization; Yerri, L’indigène dans le droit colonial.
10. Said, Orientalism. On fantasy and history see J. W. Scott, Fantasy of Feminist History. On the historical and literary inversions of the “harem fantasy” see Apter, “Female Trouble in the Colonial Harem.”
11. Mosaic law did remain in place for Jews of the Mzab, which was annexed to Algerian territory in 1884. Stein, Saharan Jews.
12. Montesquieu cites Laugier de Tassy, Histoire du royaume d’Alger (1720) in Montesquieu, Spirit of the Laws, pt. 3, bk. 16, chap. 6, “On polygamy itself,” 268. See also Grosrichard, Sultan’s Court.
13. Grigsby, “Orients and Colonies.” Also, “Women of Algiers” in Porterfield, Allure of Empire, 117–41. For a later period see Alloula, Colonial Harem.
14. Ch. de L., “Danses maures—Opinion sur les harems,” 61, 63. For contemporary accounts see Duchesne, De la prostitution dans la ville d’Alger, 22–34; Bertherand, Médecine et hygiène des arabes. See also the invaluable history, Taraud, La prostitution coloniale.
15. Ch. de L., “Danses maures—Opinion sur les harems,” 641.
16. Ibid., 68.
17. Ibid., 57.
18. Mornand, “L’algérien français,” 207. See also Duchesne, De la prostitution dans la ville d’Alger, 87–90. And Lazreg, Eloquence of Silence, 29–33.
19. See, for example, Eusèbe de Salle, “Mémoire sur la polygamie musulmane,” Journal des économistes, 1842.
20. See “Actes de la Société orientale,” Revue de l’Orient 1 (1843): 223–25.
21. Fortin d’Ivry, “Orient et Occident,” Revue de l’Orient 4 (1844): 211.
22. Ibid., 212.
23. Ibid., 221. He goes on to list numerous citations from the Qur’an that are intended to prove this argument.
24. Lamouroux, “De la polygamie en Algérie,” Revue de l’Orient 10 (1851): 44. Lamouroux eventually served as a conseiller in Philippeville, but his measure was never adopted.
25. Abi-Mershed, Apostles of Modernity, 76–84.
26. J. Pharaon, De la législation française, musulmane, et juive, iv.
27. Exposé de l’état actuel de la société arabe.
28. “Ordonnance sur l’organisation de la justice en Algérie (26 septembre 1842),” in Estoublon and Lefébure, Code de l’Algérie, 1:22–30.
29. Exposé de l’état actuel de la société arabe, v. See also Lorcin, Imperial Identities, 54.
30. Brett, “Legislating for Inequality,” 445–61; Jean-Loup Amselle, Affirmative Exclusion.
31. Abi-Mershed, Apostles of Modernity. Lorcin, Imperial Identities, 99–117.
32. Yacono, Les bureaux arabes, 136–45.
33. Richard, De la civilisation du peuple arabe, 7.
34. Richard, Du gouvernement arabe, 53.
35. Ibid., 56.
36. Richard, De la civilisation du peuple arabe, 29.
37. Richard, Du gouvernement arabe, 77.
38. Ibid., 81.
39. Lapasset, Aperçu sur l’organisation des indigènes, 32.
40. Javary, Études sur le gouvernement militaire, 151.
41. Pellissier de Reynaud, Annales algériennes, 3:456.
42. Ibid., 3:426.
43. Ibid., 3:440–41.
44. Ibid., 3:500–501.
45. “Décret portant organisation de la justice musulmane (1 octobre 1854),” in Estoublon and Lefébure, Code de l’Algérie, 1:173–78. See also Christelow, Muslim Law Courts, and Brett, “Legislating for Inequality in Algeria,” 443–51. Brett describes the adoption of the 1854 legislation as a combination of “cultural perception, practical advantage, moral duty and legal commitment” to the protection of Islamic law in civil matters (445).
46. See, for example, Feuillide’s mocking account of the military colonies: Capo de Feuillide [Jean Gabriel Cappot], L’Algérie française, 34–41; and C. Duvernois, L’Algérie ce qu’elle est, 248. On the longer history of this conflict see Sessions, By Sword and Plow.
47. Armand Fouquier, “Le Capitaine Doineau.” Also, Delayen, Les deux affaires du capitaine Doineau. On the competing interests at work in the case see Albert de Broglie, Une réforme administrative en Afrique, 135–39. On Favre, republicanism, and the bureaux arabes see Rey-Goldzeiguer, Le royaume arabe, 113; Abi-Mershed, Apostles of Modernity, 160–62; Bowler, “‘It Is Not in a Day.’”
48. Hugonnet, Souvenirs d’un chef de Bureau arabe, 91.
49. Ibid., 96.
50. Ibid., 117.
51. On Berbrugger and La Revue africaine see Lorcin, Imperial Identities, 141–43. On Saint-Simonians and colonization see Abi-Mershed, Apostles of Modernity; Pilbeam, Saint-Simonians in Nineteenth-Century France; Marçot, “Les premiers socialistes français,” and Comment est née l’Algérie française.
52. For a discussion of this mythology see Lorcin, Imperial Identities, 65–67.
53. Berbrugger, “La polygamie musulmane,” 256–57.
54. Daumas, La femme arabe, 20–21.
55. Ibid., 2.
56. Clancy-Smith, Rebel and Saint, “La Femme Arabe,” and “Islam, Gender, and Identities.”
57. Daumas, La femme arabe, 25, 141.
58. Ibid., 53.
59. Moulis, “Le Ministère de l’Algérie.”
60. C. Duvernois, L’Algérie ce qu’elle est, 252, 53. See also Murray-Miller, “Imagining the Trans-Mediterranean Republic.”
61. See Schreier, “Napoléon’s Long Shadow,” and Arabs of the Jewish Faith.
62. C. Duvernois, L’Algérie ce qu’elle est, 101, 254.
63. C. Duvernois, L’Akhbar, 11.
64. C. Duvernois, La réorganisation de l’Algérie, 14.
65. Feuillide, L’Algérie française, 75.
66. Ibid., 248.
67. Ibid., 250.
68. Ibid., 246.
69. See Secretary General to Minister, “Résumé des rapports de généraux et des Préfets, du Premier Président et du Procureur Général sur la reorganisation de la Justice Musulmane,” in ANOM 17 H 2. Christelow, Muslim Law Courts, 164–66; Moulis, “Le Ministère de l’Algérie,” 234–45.
70. Gen. Com. d’Oran to Minister, August 11, 1859, in ANOM 17 H 2.
71. Secretary General to Minister, “Résumé des rapports,” in ANOM 17 H 2.
72. “Rapport à l’empereur sur le décret qui organise la justice musulmane (31 décembre 1859),” in Estoublon and Lefébure, Code de l’Algérie, 1:231.
73. A. Levallois, Les écrits autobiographiques d’Ismayl Urbain, 38. M. Levallois, Ismaÿl Urbain.
74. See Urbain, “Chrétiens et musulmans, Français et Algériens,” Revue de l’Orient, ser. 2, vol. 2 (1847): 351–59.
75. Voisin, L’Algérie pour les algériens, 58.
76. Rey-Goldzeiguer, Le royaume arabe, 233. See, for example, the anonymously published pamphlet, Urbain, L’Algérie française: Indigènes et immigrants. And the response that it provoked, Algérie: Immigrants et indigènes. Urbain’s close associate Frédéric Lacroix attacked the proliferation of pamphlets in defense of settler interests, condemning their anti-Arab “racism.” He upheld a conception of “civilization” as something distinct from “assimilation.” In [Frédéric Lacroix], L’Algérie et la lettre de l’Empereur, 43. See also Murray-Miller, Cult of the Modern, 105–14.
77. C. Duvernois, Les autolatres, 18.
78. Algérie: Immigrants et indigènes, 22.
79. “Rapport Casabianca, 8 avril 1863,” on the “Sénatus-consulte relatif à la constitution de la propriété en Algérie, dans les territoires occupés par les Arabes,” in Estoublon and Lefébure, Code de l’Algérie, 1:273. See also Autin, “La législation foncière”; Guignard, “Les inventeurs de la tradition ‘melk’ et ‘arch.’”
80. Guignard, “Conservatoire ou révolutionnaire?”
81. Minority opinion in “Rapport Casabianca, 8 avril 1863” on the “Sénatus-consulte relatif à la constitution de la propriété en Algérie, dans les territoires occupés par les Arabes,” in Estoublon and Lefébure, Code de l’Algérie, 1:274.
82. Warnier, L’Algérie devant le Sénat, 55.
83. Ibid., 150.
84. A. Duvernois, La question algérienne, 23.
85. Ibid., 30.
86. Conseil général d’Alger, Procès-verbaux (1860), 120. See also Conseil général d’Oran, October 18, 1859, Procès-verbaux (1859), 170–74.
87. Conseil général d’Alger, Procès-verbaux (1860), 104.
88. Ibid., 120.
89. Ibid., 115.
90. Ibid., 121–22.
91. “Ordonnance sur l’organisation de la justice en Algérie (26 septembre 1842),” in Estoublon and Lefébure, Code de l’Algérie, 1:22–30.
92. Gutman, Les décisions doctrinales du Grand Sanhédrin, 29–33.
93. Brown, Regulating Aversion, 52.
94. See, for example, an article criticizing indigenous rabbis for performing polygamous marriages and divorce, in L’Univers israélite, no. 10 (June 1864): 184–85. And the defensive reaction on the part of the secretary of the Consistoire d’Alger in L’Univers israélite, no. 11 (July 1864): 532. See also Leff, Sacred Bonds of Solidarity; Schreier, Arabs of the Jewish Faith; Assan, Les consistoires israélites d’Algérie.
95. On the “qualité de français” understood by article 7 of the Civil Code see Heuer, Family and the Nation, 129.
96. See Enos Cour d’Alger (February 24, 1862), in Journal de la jurisprudence de la Cour impériale d’Alger [hereafter Robe] (1862), 93.
97. On the Enos case as a precedent for the 1865 sénatus-consulte see Cherchari, “Indigènes et citoyens”; Schley, “Tyranny of Tolerance,” 272–78.
98. L’Akhbar, March 17, 1864, 1–2.
99. Avocats d’Alger v. Aïnos ou Enos, Receuil général des lois et des arrêts (Receuil Sirey), 1864, pt. 1, 113–14.
100. Enos, “Quelle est la condition juridique des israélites algériens? Sont-ils Français?,” Robe (1864), 70.
101. See “Décret qui affranchit des droits de timbres et d’enregistrement (5 September 1851),” in Estoublon and Lefébure, Code de l’Algérie, 1:144.
102. See, for example, Attali v. Attali, Cour d’Alger (January 29, 1857), in Estoublon, Jurisprudence algérienne, 2:6–9
103. Tingé v. Messaouda Ben Kenoun, Tribunal d’Alger (June 29, 1861), in Estoublon, Jurisprudence algérienne, 3:43–45.
104. See Dame Courcheyia v. Courcheyia, Cour d’Alger (January 19, 1860), ibid., 3:1–4; Dame Courcheyia v. Courcheyia, Cour d’Alger (May 18, 1860), 3:27–29; Courcheyia v. Dame Courcheyia, Cour de cassation (April 15, 1862), ibid., 3:25–26.
105. On the “scandalousness” of impotence trials see Moussaud, Précis pratique des maladies des organes génito-urinaires, 345–46.
106. Courcheyia v. Dame Courcheyia, Cour de cassation (April 15, 1862), in Estoublon, Jurisprudence algérienne, vol. 3 (1862), 25–26. For the previous case, Tingé v. Messaouda Ben Kenoun, Tribunal d’Alger (June 29, 1861), in Estoublon, 3:43–45.
107. Dame Courcheyia v. Courcheyia, Cour d’Aix (June 2, 1864), in Estoublon, 3:19–21
108. In Zermati v. Zermati, Cour d’Alger (May 22, 1865), Robe (1865), 31.
109. Judgment of Tribunal d’Alger, July 7, 1864, cited ibid., 35–36.
110. Among other sources, he drew on Salvador, Histoire des institutions de Moïse et du peuple hébreu, 2:157–66.
111. Mazel in Zermati v. Zermati, Cour d’Alger (May 22, 1865), Robe (1865), 41. And “La bigamie chez les Israélites algériens,” L’Akhbar, May 25, 1865.
112. Decision of the Cour d’Alger in Robe (1865), 49.
113. Rey-Goldzeiguer, Le royaume arabe, 114.
114. Frégier, Du droit algérien, 20. As well as L’Akhbar, July 23, July 29, and August 11, 1864. See also Renucci, “Les juifs d’Algérie et la citoyenneté.”
115. Frégier, Juifs algériens, 352.
116. See Adolphe Franck, “Rapport verbal sur un ouvrage de M. Frégier,” Bulletin de l’Académie des sciences morales et politiques, September 23 (1865), 465–70. See also Schreier, “Napoléon’s Long Shadow.”
117. Frégier, Juifs algériens, 141.
118. Ibid., 142.
119. Ibid., 165.
120. Poivre, Les indigènes algériens, 24.
121. Ibid., 32.
122. “Adresse des Israélites d’Alger à sa Majesté Napoléon III,” L’Akhbar, May 19, 1865. And Frégier, Juifs algériens, 446.
123. See “Exposé des motifs de M. Flandin, conseiller d’État, le 22 juin 1865,” in Estoublon and Lefébure, Code de l’Algérie, 1:303. See the analogous discussion in Brett, “Legislating for Inequality in Algeria”; Schreier, “Napoléon’s Long Shadow.”
124. “Rapport présenté par M. Delangle le 30 juin 1865,” in Estoublon and Lefébure, Code de l’Algérie, 1:304.
125. Wilfred de Fonvielle, “Le Droit au sérail,” Revue du monde colonial 7, no. 14 (January 1865): 67.
126. Sartor, De la naturalisation en Algérie, 8.
127. Ibid., 26–27.
128. See “Délibération sur le projet de Sénatus-consulte relatif à l’état des personnes et à la naturalisation en Algérie,” Procès-verbaux des séances du Sénat 5, no. 35–39 (July 1–7, 1865): 219
129. Ibid., 229–30.
130. Annales du Sénat et du Corps législatif 2 (March 3, 1866): 93.
131. See, for example, “Appel aux Israélites de l’Algérie, au sujet de leur naturalisation,” and Arnold Thomson, “Des députations israélites se sont présentées à sa Majesté à chacun de ses voyages, pour demander la naturalisation,” L’Akhbar, May 18, 1866.
132. See Joseph Guérin, “Le sénatus-consulte I,” L’Akhbar, July 27, 1865. They proposed, in other words, to make marriage an exception; see C. Duvernois, “La question algérienne II,” L’Akhbar, December 14, 1865.
133. Conseil général d’Alger, Procès-verbaux (1866), 11–12.
134. C. Duvernois, “La question algérienne II,” L’Akhbar, December 14, 1865.
135. Arnold Thomson, “Assimilation (suite et fin),” L’Akhbar, November 20, 1866.
136. Ballue, La question algérienne à vol d’oiseau, 47.
137. On the famine and its aftermath see Taithe, “Algerian Orphans and Colonial Christianity.”
138. Vinet, Le droit commun pour les indigènes, 8.
139. Ibid., 11.
140. Cadoz, Droit musulman Malékite, 185.
141. Ibid., 195.
143. Décret du 24 Octobre 1870, Bullétin officiel du gouvernement d’Algérie, 1871, 336. S. B. Roberts, Citizenship and Antisemitism.
144. Maurice Block, Dictionnaire de l’administration française (Paris, 1856), s.v. Statut, 1488.