In January 1832, an Algerian notable lodged a complaint before the chief French military commander of the newly conquered territory, General Anne Jean Marie René Savary, the Duke of Rovigo. The man was clearly in a state of emotional distress. According to Rovigo’s report to the minister of war, the man was “in tears and complained of the abduction [rapt] of his two sisters and his wife by a European who had been holding them for three days.” Accompanied by the French-appointed agha (chief) of Arabs, El Hadj Mahiddin, the betrayed husband beseeched the general to return his wife to him. In his notorious military policy, Rovigo systematically violated Algerian lives, beliefs, and belongings, but he displayed remarkable solicitude in this case. The suspected seducer, called in for interrogation alongside the women, admitted to conducting a clandestine affair with the man’s wife, having gone as far as to rent the house next door. The seducer, Rovigo was dismayed to learn, was a judge on the Court of Appeals of Algiers, a certain M. Colombon.1
The infamously violent French military commander rapidly responded to the scandal. A Napoleonic war hero who had served in the Egyptian campaign, he pursued a policy of extensive military colonization with little heed for the nice-ties of law: he authorized extralegal massacres and summary executions, most notoriously of the El Ouffia tribe; converted mosques into cathedrals; destroyed cemeteries to create roads across the capital; and expropriated buildings without regard for titles.2 His actions regularly contravened the protections extended to Algerians by the July 5, 1830, Convention of Capitulation. In this case, however, Rovigo acted against the French official, “forced by the general interest to enact a harsh measure and to treat the natives with equity.” He put Colombon under house arrest and soon deported him to the metropole. Leaving the judge unpunished would, he claimed, disrupt “all of the Maures’ authority over their women.” In his view, they sought “vengeance for the assault on a law that remains a matter of religion.”3
Rovigo acted quickly to correct the French magistrate’s sexual affront to local “religious” law by restoring patriarchal authority. In doing so, he worked to reverse the widespread images of French soldiers as agents of sexual license and plunder in the earliest days of the conquest. One contemporary lithograph playfully drew a direct connection between Algerian women’s apostasy and sexual corruption in its depiction of two naïve soldiers competing for the affections of a faithless woman, “une infidèle.” Rovigo, by contrast, presented himself as a defender of Algerian women’s religious and sexual honor. The case illustrates how French officials variably constructed the boundaries of religious belief and practice in an effort to secure sovereignty. Rovigo had considerable latitude in determining what mattered for the Muslim religion, viewing the assault on the husband’s sexual rights as particularly sensitive. It represented a challenge not only to local men’s authority, but also to his own. As he explained, “Had I not accorded them a dazzling [éclatant] justice, all that I had accomplished with the Arabs would be forever lost.”4 In affirming an intimate connection between religion and patriarchal rights, Rovigo sought to buttress his own legitimacy and power. As this chapter makes clear, his gesture presumed that Muslim religion was bound to Algerian women and their legal status.
This dramatic contest between military, civil, and local authority condensed broader struggles over how to establish French sovereignty and law in the ex-regency. Because the ultimate fate of the territory as a French possession remained insecure, these early years are often characterized as a “period of uncertainty.”5 In this chapter, I show how this insecurity extended beyond military planning to shape debates about law in the nascent colony. “Uncertainty” was, in other words, an epistemological and legal problem, precisely because the very meaning of “law” in the territory was unclear. Between the signing of the July 5, 1830, convention and the July 22, 1834, ordinance that annexed Algerian territory to France, military commanders, civilian officials, metropolitan politicians, and local notables struggled to assert and preserve their authority by making competing claims about legality. Over the course of four years, gendered fantasies of law, religion, and religious law worked to ground an otherwise uncertain colonial order. Far from converting or “liberating” women, these fantasies located Algerian women in the presumptively private domain of their family.
Official concerns with legality emerged in response to the wanton destruction wrought by unchecked military force. The Convention of 1830 signed between General Bourmont and the Ottoman regent Hussein Dey was supposed to bring hostilities to an end, extending protections to a diverse local population of an estimated four million Arabs, Berbers, and Jews.6 It dissolved the “foreign” Turkish government, while promising to respect the territory’s indigenous residents, proclaiming: “The freedom of the inhabitants of all classes, their religion, their property, their commerce and their industry, will not be disturbed. Their women will be respected.”7 The French army immediately violated this law of peace. The pillaging of the ex-regency’s capital continued long after the convention’s signing, as soldiers seized private and public belongings, destroyed buildings, and laid claim to pious foundations (habous). Terrorized, thousands of residents fled the capital city. War continued as the army sought to extend French control beyond Algiers. In November 1830, General Bertrand Clauzel ordered the nearby town of Blida to be sacked in response to local resistance. This massacre of hundreds of inhabitants, including women and children, made it clear that the army had no intention of respecting the terms of the convention. While Clauzel’s successor, General Pierre Berthezène, promised to act with greater respect toward the local population, his tenure was short-lived. With Rovigo, violent exactions and terror returned as the order of the day.8
When Rovigo assumed command in late 1831, the army had conquered Algiers and some of the surrounding coastal plains, but only provisional structures of government were in place. Alongside the military commander, a civil intendant, Louis André Pichon, was named to oversee civil matters, thus giving rise to chronic conflicts over authority. In this moment of political indecision, the future of the territory’s relationship to France was tenuous, under vigorous assault from local resistance and metropolitan ambivalence toward a confused and costly colonial project.
Unfolding in this chaotic context, the apparently minor incident regarding Colombon’s sexual dalliance raised larger questions about the relationship between French and local “religious” law, military and civil power, force and right. The limits of brute military violence of the kind exercised by Rovigo became increasingly clear to politicians in Paris who sought to institute a durable colonial government. Intendant Pichon pursued the stabilization of French sovereignty through regularized laws, not personal military rule. He denounced Rovigo’s Napoleonic military fantasy of domination, which remained inadequate “for Algiers as for Egypt.” For Pichon and other critics of military excess, the government had been misled by Napoleonic myths, which amounted to nothing more than a “novel of Algiers.”9 As these contemporary controversies made clear, such fictions had real, indeed devastating, effects.
French officials sought a viable legal solution to the military and epistemological problem of the ex-regency’s fate. Erupting in this uncertain context, the Colombon Affair symptomatically inspired its own novel, staged as a fantasy about men’s sexual and legal control of Algerian women. Fantasy, as I understand it here, both enacts and seeks to answer fundamental epistemological problems. The novel sheds light on the Colombon Affair as a “primal scene” of colonial legal fantasy. That is to say, it demonstrates how gendered fantasies were generated in response to originary questions in the colony—including about the structure and organization of law.10
From the incident of the kidnapped wife in the Colombon Affair to controversies over women’s efforts to escape Muslim law by conversion to Catholicism, Algerian women provoked French officials’ legal thought and desire. They came to embody broader concerns about the prospects of French colonization. As scenes of affective and erotic investment, gendered fantasies about women’s place in Muslim law and religion came to ground a regime of colonial law that was eventually adopted in 1834. By focusing on gender, this chapter offers new insight into how the “period of uncertainty” was fantasmatically staged and provisionally resolved in law.
Fantasies about Muslim men’s patriarchal rights evidently shaped Rovigo’s response to the Algerian husband’s plea. The general decided to release the women, who were from a prominent family, to their brother and husband, after receiving assurances from the city’s principal Muslim qadi and the Agha Mahiddin that they would not be harmed under “Turkish law.” Concerned about rumors that the women had been imprisoned and even killed, the agha assured Rovigo that their “isolation” had “shielded them from insults,” given how the affair “dishonored the family.” Confirming Rovigo’s conception of Algerian patriarchy, Mahiddin expressed gratitude for the “good action that conformed to our religious principles.”11 In disciplining both Colombon and the women, the general shaped the official meaning of “religion” and lent it the backing of French armed force. With the apparent restoration of religious and social order, the women disappear from the state record.12
Rovigo’s punitive force demonstrated masculine and military authority not only to the Algerian notables and tribal leaders, but also to French civil officials whose competing authority he rejected. The women’s uncertain jurisdiction troubled the relationship not just between the general and the indigenous male elite, but also between French officials. They were, in other words, a “ground” for struggles between men.13
The general’s disciplinary actions exacerbated a brewing conflict with the civil intendant, Pichon. Appointed by President Casimir Périer, Pichon had just arrived in Algiers. The ordinance creating his office separated “military and civil powers” in order that “justice could, in this country, assume a regular operation.”14 This attempt to divide civil law and military force created a new terrain of conflict. Rovigo resented the imposition of civilian authority, warning Périer against creating a “rival power” that was ill-adapted to the local context: “I repeat, the action of executive power cannot be divided here. To attempt to do so would be to misunderstand the Turks and Arabs.”15 Pichon had a decidedly different perspective on how law should operate in the conquered territory, based on a lifelong career as diplomat and colonial official in Martinique and Guadeloupe. Proclaiming himself a defender of the 1830 convention’s principles, Pichon denounced Rovigo’s violent actions against the Algerian population. His memoir catalogs the wanton destruction and “terror” sown by Rovigo’s brutal policies: the conversion of the spectacular Ketchoua mosque into a cathedral, the destruction of cemeteries to build roads, the imposition of an exorbitant wool tax on local merchants, the wanton demolition of buildings in Algiers, and the massacre of the El Ouffia tribe in April 1832. When critics charged him with being “anticolonial,” Pichon responded, “No, I do not want a colonization like that desired by the Party of pillage and extermination.”16
While apparently minor, Colombon’s case cast the conflict between civil and military authority as a contest between different models of masculinity and law. For Pichon, Rovigo’s actions instantiated an abuse of power. He claimed that the Napoleonic veteran had no right to “proceed militarily” in what was a “purely judicial matter” or to take such “arbitrary actions toward women.”17 Pichon denounced Colombon for immorality, but more pointedly condemned Rovigo for the “palpable irregularities” in his exercise of power. Pichon claimed to advocate for the women, who, in his view, had been turned over to “a man who had no right over them.” In overstepping the boundaries of his authority, Rovigo did “damage to the personal security no less of the natives than of our nationals.”18 Pichon thought that legal procedure rather than military authority would provide better guarantees for all, including Algerian women. For Rovigo, by contrast, “there could be nothing in greater conformity with their religious law and that of humanity than to return these women to their family, while tempering by my influence the most rigorous aspect of their domestic justice.”19
The Colombon Affair illustrates how debates over the legal form of colonial power were bound to the status of Algerian women, and more specifically whether they should be subject to Muslim law. This primal scene of imperial rescue enacted originary conflicts of Algerian colonial government that would continue for more than a century. As a fantasy, it held apparently contradictory positions together: Colombon expressed a French jurist’s eroticized legal desire to “save” women from Muslim patriarchy; Mahiddin secured a position as colonial intermediary by guaranteeing women’s submission to their male kin; Rovigo assured martial masculine authority by shoring up local gendered hierarchies; and Pichon upheld the rule of law as the best way to protect women and the nascent colonial order.20 Rather than resolving them, this drama of transgressive sexual desire and punishment staged these political contests as an affectively laden scene.
The affair’s dramatic intrigue was symptomatically refracted in one of the earliest novels about colonial Algeria: Mœurs d’Alger: Juive et Mauresque. Published in 1833, it was written by a liberal man of letters, Hippolyte Bonnellier, who worked in the civil affairs office in Algiers, alongside Pichon.21 His anticlerical and antimilitarist novel depicted the confused landscape of the newly conquered Algeria as legally and libidinally treacherous. The fictionalized account sought to lay bare the truth of Rovigo’s mistreatment of both the judge and the women in the case. It made a brief for a colonial rule of law by mobilizing “the noise of opinion asking for justice.”22
To enhance Colombon’s story, Bonnellier added a Jewish love plot to the Muslim one. Such juxtapositions of Jews and Muslims characterized many early depictions of Algiers after the conquest, in fiction and painting as well as law.23 In the novel, the magistrate Robert Cowel (Colombon’s alias) falls in love both with Johane, the Jewess, and a beautiful Mauresque, Fatma, who is trapped in an unhappy polygamous marriage. By desiring both women simultaneously, Cowel himself succumbs to the confused temptations of polygamy, thus “absorb[ing] the religious prejudices of these two opposing religions.” While his heart drives him toward amorous and assimilationist passion, Cowel’s intellect remembers the legal limits on his desire, set by the Convention of 1830: he “still had enough reason not to misrecognize the rights even of the vanquished, and too much probity to fearlessly offend defenseless virtue.” He worried that local men’s “vindictiveness” was “implacable in the protection that it grants to the servile virtue of women.”24
Cowel’s anxieties appear to be well founded. Fatma’s vengeful husband, Sidi Taleb, denounces the French judge for encroaching on his domestic rights: “The sanctity of our customs guaranteed by our laws make the secret asylum of our homes inviolable to any stranger, to any man, to any Christian.”25 Fatma and her two co-wives escape their husband’s murderous rage. Helped by a scheming translator, they arrive at Cowel’s door, awakening him from a dream. With his wishes fulfilled by their apparition, Cowel cannot distinguish reality from fantasy, proclaiming “my uncertainty is frightening.” When the women ask for “asylum and protection,” he hesitates. At the translator’s urging, he admits that it would be a “stupid cruelty” to force them to return home—and to their death. Cowel resolves to shield them in his house, but never consummates his love.26
When the betrayed husband reports the incident—“with sobs, and great cries, begging justice and vengeance”—to Rovigo, the general issues a “punishment of exemplary severity” that is supposed “to reassure the Algerians that their most valuable property would be conserved, that of the honor they invested in their women.”27 While Cowel is sentenced to deportation, “justice and vengeance” come at an even higher cost to the women: Fatma and her co-wives are beheaded in Koléa. The novel’s last scene takes place inside the mosque that Rovigo had violently turned into a cathedral. Johane has converted in order to marry Cowel, only to be disappointed. Cowel, now married in France, has renounced his wayward desires in submission to the monogamous discipline of French civil law. Johane dies brokenhearted.
Herein lies the interest of Bonnellier’s novel as a refraction of two intimately linked legal fantasies: Fatma’s eroticized rescue and Johane’s assimilation. In fact as in fiction, Rovigo’s actions, which Bonnellier describes as having all “the logical force of a saber,” severed the fictional jurist from his objects of desire. This act of symbolic castration by military power at once prompted these legal fantasies and allowed them to persist. Rovigo’s action as reprised in the novel set the stage for this scene to be repeated. As we will see throughout this book, jurists continued to dream of liberating Algerian women. The Colombon Affair and its retelling in Bonnellier’s novel illustrates how this fantasy was not merely a projective trope of Orientalist fiction.28 It also became integral to the early policy and practice of Algerian colonial law.
Observing Local Law
A contemporary review in Le Figaro praised Bonnellier’s novel for its vivid depiction of the “mœurs of the country’s inhabitants.”29 Curious metropolitan readers of exotic fiction were not the only people interested in such details. Government officials were also keen to garner this information in order to evaluate the territory’s colonial prospects. Their efforts to map local law focused on “the family” as integral to Algerians’ presumptively private, religious domain.
A rash effort to abolish local courts entirely on September 9, 1830, was quickly corrected by an ordinance signed by General Clauzel on October 22, which instituted French tribunals and reestablished indigenous counterparts. This hasty provisional organization only raised further questions and generated considerable local consternation.30 In an effort to address this precarious situation, the Ministry of Justice sent Charles Paravey, a legal adviser to the Conseil d’État, to Algiers to survey the existing legal system and offer thoughts on its reform.
Paravey approached the problem of Algerian law philosophically. A member of the “Generation of 1820,” he had followed Victor Cousin’s lectures on moral philosophy at the Sorbonne.31 As a student, Paravey grappled with the question of the respective role of sensibility and reason in the formation of moral laws, concluding in a prize-winning essay from 1818 that “one can never derive any fixed law from the system of sensibility.”32 Following Cousin, he concluded that only “scientific observation” based on reason could tame the passions and thus derive the “absolute principle” that would “allow the law to be itself, and nothing but itself.”33 Upon arriving in Algiers, Paravey drew on this observational method in order to understand local law. His sixty-seven-page report professed to be a dispassionate account, supposedly based solely on the “study of facts,” untainted by sensational prejudices about Oriental despotism. He flatly rejected “ideas in this vein about Oriental justice,” confessing to the justice minister, “I must admit that nothing could have been more inexact than the notions with which I arrived.” He studied the ex-regency’s judicial system and concluded that the deposed dey had been “very legal.”34
Using translators, Paravey interviewed local Islamic legal scholars, qadis and muftis of the Hanafi and Maliki schools of Islamic jurisprudence, both of which had tribunals in Algiers.35 He explained that qadis were not merely “judges,” but also notaries and social mediators whose primary aim was “to reconcile the parties concerned.” Qadis made rulings only occasionally, and when they did, they “judged according to the law.” Litigants followed such judgments voluntarily or made appeals to the Medjeles (Majlis) council, whose qadis and muftis weighed in on controversial questions. In contrast to the hierarchical French appellate system, ultimate legal authority resided in the community of scholars (ʾulamaʿ). As the mufti in Algiers explained to him, “The Judge fears only his equals, only scholars like himself, only the Ulama.”36
Based on this positive assessment, Paravey recommended that existing institutions be left in place. What he did criticize was their current, unsystematic administration by the French. Given his rigorous philosophical and legal bent, Paravey roundly rejected the military administration’s approach to justice. The October 22, 1830, ordinance established an initial basis of judicial organization by recognizing the Maliki qadi and instituting a rabbinic tribunal alongside new French courts. However, by reducing the Hanafiqadi to a mere advisory role, the measure had significantly alienated the city’s Turkish elite, many of whom were important mediators for the French. Subsequent efforts to correct these oversights and straighten out jurisdictional conflicts only exacerbated confusions, creating an ongoing source of local discontent.37
Paravey proposed a comprehensive system of separate tribunals for each community for civil matters and misdemeanors. A committed liberal, he deliberately set aside the private lives of families. As he explained, the local population would “find it very strange that [the sovereign] would attempt to mix in their private affairs, in their family relations, while visibly completely ignorant of the law that applied to them.”38 He also maintained local law for real property transactions (droits réels), even in cases where litigants were French. In cordoning the Algerian family off from direct intervention by French state sovereignty, the report did more than simply “preserve” the Algerian family as legal domain. Paravey’s account contributed to the production of privatized domesticity—in law, but also in the psychic landscape of jurists and colonists.
Paravey dismissed full legal assimilation as theoretically and practically flawed for family and religious matters. In his view, “our dignity as Sovereigns” did not authorize the French to “impose on the country our judges and our laws,” as if “natives have no say and that after all they would benefit.” In a telling footnote, he questioned whether a colonial judge could “obtain the authority” or “inspire the necessary confidence to be a conciliator” in applying “Moorish law.” How, he wondered, “could he get mixed up in questions of family… and that host of questions in which religious law is mixed with civil law”? It followed that only a qadi would be fit for the task. Mosaic law, meanwhile, would be maintained for matters of marriage, divorce, and inheritance, as “these questions are attached to the social constitution of a people and penetrate all the details, and all the secrets, of private life.” He believed that this system would reinforce rather than threaten French authority. In making native judges “our judges,” he argued, “their authority will give homage to our sovereignty because they will be instituted by us.” As he explained, “their special jurisdiction will not undermine the unity of political power any more than do commercial tribunals [tribunaux de commerce] in France.”39
Paravey’s commitment to multiple jurisdictions nonetheless presumed civilizational hierarchy and legal teleology. He here followed Cousin, whose early lectures on Kant traced a disjuncture between reason’s higher law and written law’s historical instantiations. In Cousin’s Hegelian account, “Saint Liberty” does not “uncover her face all at once; she only lifts her veils successively.”40 Professing similar faith in the progressive work of history, Paravey cautioned the ministry against pursuing assimilationist aspirations all at once, calling instead for “more accommodations, delicacy, and time.” While motivated by a “natural and laudable desire to hasten by all means the progress of civilization,” such reforms, especially with respect to “certain acts of domestic authority, of paternal or marital power,” needed time. Paravey echoed Cousin’s feminine allegory of historical progress to illustrate his point. He claimed that Algerian women’s veils would “fall by themselves in a few years (if we can believe sensible Maures).” By contrast, “If we wanted to tear them away today, they will be tied that much more tightly around their heads.”41
This liberal legal vision stood in stark contrast to the violent and disorganized tactics of military commanders such as Rovigo. Paravey’s ideal of legal evolution, requiring patience and time, was, however, no less fantasmatic. It too presumed that local “religious” law, especially with respect to women and the family, had to be accommodated. In Paravey’s estimation, the recognition of local civil law would enhance rather than undermine French sovereignty.
To Colonize or Not to Colonize
Paravey’s report was only a blueprint, as the legal form and fate of the ex-regency remained very much in question. In October 1832, the Ministry of War, under the leadership of Maréchal Jean-de-Dieu Soult, took charge of the conquered territory’s future, while the military’s extralegal actions preoccupied metropolitan political debate. The prospect of establishing a stable system of law played a crucial role in efforts to guarantee the viability of the future colony.
Some colonial publicists overtly defended the army’s most brutal tactics. In one bellicose pamphlet, P. Carpentier endorsed Rovigo’s use of force, mocking Pichon’s pretensions to legality. “We proceed,” he wrote, “law in hand. We speak of the constitution, we want legality. Well, good God! What law! What legality! A mix of French laws, local customs, circumstantial measures, the amalgamation of which produces a bastard system, which is mortal for creative activity.” Dismissing this confused and “bastard” law as deficient, he instead promoted the singularly redemptive power of violence. Praising Rovigo’s Egyptian heroism, he proclaimed: “We must tear down, clear away, and rebuild; with a strong will, with a singular will, we must destroy and create.”42 Victor-Arman Hain, a founder of the Colonial Society of Algiers, likewise defended Rovigo’s use of ruthless tactics against a “savage” native population, claiming that the extermination of the El Ouffia tribe was not only “justified but necessary.”43 According to his corporealized conception of Algerians’ civilizational difference, these “brutes, with their ferocious mœurs, who understand no others,” could only comprehend “the brutal and vigorous [nerveuse] action of force.”44 For Hain, this was a principle of “legitimate defense,” and he appealed to the tale of a gruesome murder of a young French girl by two “Kabyles” to make his point. While Pichon claimed that the assault against the victim, a Miss Renaux, was a rare exception, for Hain it explained why “the government should not fear to act energetically against these barbarians.”45
These pamphleteers celebrated military violence as a precondition of colonial success. In parliament, however, pro-colonial politicians took another tack in defending the military’s budget authorization against critics who questioned whether the spending was worthwhile. Rather than overtly embracing violence, they suggested that colonization could be made viable and cost-effective as long as it was based on a rule of law.
The government itself remained hesitant. At parliament’s urging, Maréchal Soult convoked a commission to study the ex-regency in July 1833.46 Its members traveled across the territory, interviewing military and civilian officials as well as Algerian notables. Even sympathetic politicians questioned the Algerian endeavor and sought to resolve the prospective colony’s legal status and judicial organization. According to the commission’s instructions, the capitulation of July 5, 1830, which was aimed at “the submission rather than the expulsion of the natives,” placed “the inhabitants of Algiers” in a “peculiar position.” Their legal status had to be clarified.47
The parliamentary interventions of Frédéric Gaëtan de La Rochefoucauld highlight the pressing nature of these legal questions. A deputy from the Cher, he took a firm stand against Rovigo’s systematic violations of the 1830 treaty. He called on the minister of war “to halt now and for good… the barbarous system that has been tested out in Algiers.” The massacre and dispossession of the El Ouffia tribe emblematized Rovigo’s deviant violence. As La Rochefoucauld sardonically noted, “This is how we have respected the individual liberty guaranteed by the Capitulation.” As a liberal Catholic defender of the freedom of conscience, he deplored the destruction of sacred sites, and especially the conversion of the Ketchoua mosque into a cathedral. In his view, these regressive policies made the exercise of religion “as exclusionary and intolerant as it was under the Restoration.”48 A champion of civilian authority, he expressed sympathy for the magistrate Colombon, deploring the jurist’s unjust deportation, merely under the suspicion of “a love intrigue that had not even been proven.” While his colleagues laughed at the reference, La Rochefoucauld saw it to be a telling example of the military’s unbridled power: “Imposing its arbitrary authority on all in Africa, the military can even remove a magistrate from his functions, without any form of trial. And you want to colonize a country?!” La Rochefoucauld wanted to reconcile colonization with the “principles of 1789” and the constitutional legal order of the July Monarchy. The military government had failed to realize these lofty ideals, thereby leaving “our administration in Algiers… illegal and despotic, in opposition to our Charter and our laws.”49
These quandaries about the relationship between military and civilian legal authority weighed on the Soult Commission members as they tried to sort out whether “the necessary regularity, moderation, and stability of the civil administration” could be guaranteed.50 They set themselves the task of establishing a framework for colonization based on legality, rather than spectacular military force.
A majority of the commission’s members supported the territory’s “definitive occupation by France.” In an effort to clarify the legal status of the conquest as established by the Convention of 1830, they debated its territorial purview and disputed the Ottoman dey’s authority at the time of its signing (as a representative “not of indigenous sovereignty, but of a foreign occupying power”). The commission decided to limit the guaranteed protections exclusively to the inhabitants of Algiers.51 Beyond the question of territorial reach, however, they debated how far allowances for religion should be extended to the domain of law. As we saw in the Colombon Affair, the sense and spatial boundaries of religion, for French officials as well as for Muslim and Jewish inhabitants of the exregency, became an explicitly political problem.52
For some members of the commission, the treaty’s meaning was restricted to “the exercise of religion and respect for mosques.” For others, granting religious protection to “institutions and civil laws” was tantamount to renouncing French sovereignty. It seemed inconceivable, in this view, that France would have “given up [aliéné] its right to make laws, a right inseparable from sovereignty.” For still another official, guarantees of “the free exercise of religion” necessarily encompassed “laws, institutions, and customs.” Paralyzed by these contrasting viewpoints, the commission effectively postponed the question, only agreeing that “the letter” of the convention agreement needed to be observed.53 The problem of how and where to separate “justice from religion” would require further study.54
The commission toured Algiers, interviewing French as well as Muslim and Jewish jurists in September and October, to gather facts on the ground.55 These interlocutors, French and indigenous alike, expressed deep reservations about extending French law to the former regency’s inhabitants.56 Justin Laurence (Landes), the deputy who had raised the question in the first place, admitted as much in his report on judicial organization. Promoting “the dignity of justice” as well as the “maintenance of French sovereignty,” Laurence recommended limiting Muslim tribunals to civil jurisdiction and rabbinical courts to mediation, marriage, and religious disputes. He proposed that all criminal law cases be transferred to French tribunals and, beyond the army’s southernmost outposts, to military courts or “conseils de guerre.” According to the commission, the recognition of Muslim and Mosaic tribunals appeared to be a “realistic” solution to the territories’ legal problem.57 This appeal to realism bolstered their claim to found the new legal order on a structure of distinct religious communities, each with its own law.
In an effort to address persistent questions about the colony’s viability, the commission expanded from eight to nineteen members, including two noted opponents of colonization, Hippolyte Passy (Eure) and Xavier de Sade (Aisne). The new “Commission d’Afrique” held further hearings that called on fierce critics of the military’s policy to testify. Among those witnesses, former civil intendant Pichon and his associate, the cosmopolitan notable Hamdan ben Othman Khodja, claimed to counterpose legal fact to the fiction and fantasies of military conquest and occupation.
Pichon’s commentary drew on his long career abroad as a diplomat, engineer of the Louisiana Purchase, and eventual ambassador to the United States. He was a strong critic of the military mishandling of Saint-Domingue and more broadly of imperial overreach. He thus argued for a “restrained” approach to Algerian colonization that would remain limited to trade ports along the coast. Opposing extensive settlement, he urged that Algeria was not America. In contrast to the Amerindian population, Algerians had a clear conception of landed property rights, as “farmers and pastoralists” who “occupy and possess the ground.” Pichon affirmed that Algerians “see themselves as owners of the land that they occupy.”58 To believe otherwise, he suggested, was to mistake fiction for truth. He had raised similar concerns in an exchange with Rovigo in January 1832, in the midst of the Colombon Affair. “On this question of colonization and the concession of lands,” he wrote, “we must manage to distinguish between what is real and practicable from the doomed projects and fictions [romans] that have, here as in America, created so many victims.”59 For Pichon, these dreams of unoccupied productive land put lives and fortunes at risk.60
Pichon’s ally Hamdan Khodja also sought to set the record straight in his “historical and statistical account of the Regency.” A legally trained former adviser to Hussein Dey, Khodja claimed to give a “faithful rendering” (un tableau fidèle) of conditions in Algeria before and after the arrival of the French. Ironically invoking the genre of the mirror of princes, his Mirror gave a distinctly unflattering picture of the occupation. France’s treatment of the ex-regency appeared as a hypocritical violation of “the liberal principles and advantages that one might have expected from its government.”61 Like many contemporary critics, Khodja invoked liberal principles in order to point up the French government’s deviation from them: “We thought that an honorable nation would not violate its treaties, that we would enjoy liberty and that we would be treated with justice.”62 As he explained to the commission, the very opposite came to pass.
According to Khodja, the French had violated the rule of law from the outset of the occupation. The inhabitants of Algiers initially welcomed Louis Philippe and the July Monarchy. Hailing the regime’s commitment to liberty and law in the Charter of 1830, they regarded the new king as a dutiful père de famille who would “never separate husband from wife and children.”63 When the army’s actions violated these liberal principles, the urban elite in Algiers grew disillusioned. Khodja expressed this disappointment with ironic apostrophe: “The extortion of property, the shedding of blood, plunder and crimes, these are the acts that have been accomplished in Algiers!! What a Constitution! What inhuman laws, opposed to all system of peace and equality! What a Charter we have!!!”64
The Mirror’s liberal rhetoric clearly touched a nerve.65 Concerned members of the commission pressed Hamdan Khodja to provide more “evidence” for his charges. The Ministry of War itself drafted an internal rejoinder to his criticisms of the French army. Drawn up by none other than Paravey, the memorandum assented to many of Khodja’s objections, noting that his “memoir is important; it repeats the warnings that the government has already received and it cannot be neglected.” Paravey, who had now moved to a position in the Ministry of War, again called for a legal framework for Algerian rule. In his view, France could not “govern by force without recognizing any rights of the inhabitants.” The expulsion of the native population and “their substitution pure and simple by a European population” was both “unjust and extremely costly.” He thus urged the government to return “completely to the principle of respect for the Capitulation,” and “in a manner convincing to the local population and authorities.”66
The Ministry of War’s response was never published. Nor was it sent to Khodja himself. It nonetheless indicates how his pointed criticisms registered at the highest levels of the government. The commission’s final report and ensuing debates in parliament over whether or not to colonize the ex-regency reflected a renewed concern to respect the terms of the 1830 convention, especially regarding its inhabitants’ “religion” and “their women.”
A Legal Colonization?
The commission’s deliberations in 1834 reflected this renewed emphasis on legality. As we have seen, the preliminary Soult Commission had limited the 1830 convention’s legal application to Algiers. By 1834, the expanded Commission d’Afrique shifted its position. It would now extend to the territory as a whole. Critics of military occupation, Sade and Passy in particular, emphasized its ironically brutalizing and corrupting effects on the French army. Speaking about the El Ouffia massacre, Sade noted with dismay that “rather than bringing lessons of civilization to this people, we should fear taking lessons in barbarism from them.”67 The commission nonetheless voted 17–2 in favor of colonization. But now even its most fervent advocates admitted that blatant violations of the convention had been a grave mistake.
The report on colonization by the deputy Alexis de La Pinsonnière (Indre et Loire) clearly articulated these new concerns, acknowledging the irony of the French army’s recourse to “savage” tactics. He admitted that the military’s violence “exceeded the barbarousness of the barbarians we wanted to civilize, and now we complain about not having succeeded! But we were our own worst enemies in Africa!”68 He thus sought a different way forward: “The errors of the past,” he declared, “are destined to serve as instruction for the future.” While his anticolonial colleagues lingered on these harsh facts, La Pinsonnière insisted that they were now “nothing but history, and could no longer be attributed to the current administration.”69
His report gave a comprehensive list of the government’s initial missteps, lamenting in particular the defilement of sacred spaces, including family homes: “We have carelessly profaned temples, tombs, and domestic interiors, that sacred asylum of Muslims.”70 But now it was time to march ahead by replacing brute violence with the more the refined work of law. “We know that the necessities of war are sometimes difficult to resist,” La Pinsonnière conceded, “but it is possible to find, in the application of extreme measures, delicate forms, even of justice, that mask what is most odious about them.” Covering over atrocity, this “law-fare” would allow war to continue by other means.71
La Pinsonnière thus recommended that the French should “always have rectitude [bon droit] on our side.” By unnecessarily violating the terms of the convention, the military had “offended beyond measure” those inhabitants who placed “faith in our loyalty and counted on us to bring about better times.” In showing disdain for Muslim practice, the army ended up “injuring” the prospective Algerian subject “in all that he holds most dear.” Initially claimed by force, French sovereignty in the ex-regency now had to be imposed “decently,” which in turn required an adequate system of law.72 Commission members clearly framed these legalistic efforts as protections to Muslim religious and domestic sentiments.
Deputy Laurence’s report outlined the structure of law in more precise terms. Having learned of the “disasters and harms” caused by French actions during the commission’s visit to Algiers, he concurred that the French had injured local sensibilities. Before the Chamber, he testified to the emotional reactions of the local qadi and mufti, who “in their expressive language reminded me, with tears in their eyes, of the promises that had been made to them, giving me the documents, the proclamations that were published to reassure them. Next to these now illusory guarantees, they unfurled their long list of complaints and the betrayals [manques de foi] of which they accused the French administration. Sadly, all of these charges were well founded.”73 As for La Pinsonnière, Laurence wanted this past to “shed light on the organization of the present” and “serve as a lesson for the future.”74
Laurence encouraged settlement, but promised to spare natives from “expulsion” and “extermination.” Reversing past practice, he defended native property titles in order to allow colonization to proceed as a legal process. In his view, “Nowhere is possession better founded on more regular titles.” He praised qadis for their notarial skills, highlighting “the regularity and clarity of their titles,” as well as their knowledge of law, “which they apply with wisdom and intelligence.” Respect for their law would, he implied, promote a smooth and orderly transmission of land. As Laurence explained, “If the ground has masters, one can conclude that they can change and that someone who acquires a title will be able to transfer that title in turn.” Laurence thus fostered a fantasy of native removal by economic transaction rather than forceful banishment or annihilation. As he explained, “When the Arab or Maure finds it impossible to live near us, he will sell and buy further away.”75
La Pinsonnière made similar propositions, drawing on the example of the United States. He explained that the French “should profit, as have the Americans, from all of the occasions that present themselves to obtain the progressive transfer of their territory for a small bit of gold.”76 Critics of settlement, including Pichon and Passy, had invoked the American case as a negative exemplar of “extermination.”77 La Pinsonnière, by contrast, upheld the no less devastating tactics of expropriation as a positive model. These advocates substituted the tarnished image of Algeria’s disorderly and destructive occupation with an idealized plan for legal property exchange. The affirmation of Algerians’ property rights meant that the land would be available for purchase, as long as proper legal mechanisms were put into place. Over the course of the next four decades, recurrent efforts to fix Algerian property titles demonstrated the limits of this fantasy of seamless legal settlement.78 In 1834, however, these arguments under-wrote the July Monarchy’s liberal imperial project by granting it an appearance of lawful coherence.
The commission thus claimed that the ex-regency needed a more secure legal foundation. An 1833 law had established parliamentary authority over the “particular laws” of the colonies.79 Because the ex-regency had not yet become a colony, it did not fall under this law’s regulatory ambit. Instead, Algeria’s presumptive legal difference from the “old colonies” underwrote political arguments in favor of government by sovereign decree. As the president of the Chamber, André Dupin, a jurist close to Louis Philippe, explained, its population was made up not of citizens, but of legally diverse subjects. The territory’s internal diversity rendered a universal law “absurd” and ultimately inapplicable. In his view, laws voted by the parliament could not and should not apply: “When you vote a law for Algiers, for some portion of Africa, for the Bedouin, the Kabyle, the Arab, the inhabitant of this locality, will he be touched by your law? To what extent and up to what point will he be touched? Will you grant him the political rights of the citizen? Probably not. With no fixed territory and no recognized subjects, your legislation cannot apply.”80 Without a claim to popular sovereignty, Algeria would thus be subject to royal as opposed to parliamentary authority. The “legal” protections extended to native inhabitants were thus based on their subordinated status as noncitizens. A royal ordinance of July 22, 1834, annexed the exregency to France, placing it under the singular authority of a governor-general. It was at this moment that the colony was legally born.81
Within weeks of this official birth, another royal ordinance created the “judicial organization of the French possessions in North Africa.” Bringing the exregency’s legal uncertainty to an end, the new arrangement appeared to “preserve” old jurisdictions. The measure outlined a new system of tribunals to be implemented, including the selection and investiture of magistrates. Following the proposals set forth initially by Paravey and later by Laurence, the legislation of August 10, 1834, “maintained” Muslim tribunals, with “muftis and qadis named and instituted by the King, or in his name, by the Governor” (article 25). It thus made the judges French government officials, albeit of a distinct jurisdiction. The same was true of the rabbis named to Mosaic courts, whose jurisdiction was more restricted than that of the Muslim tribunals, which continued to rule in matters of both civil and criminal law for members of the “Muslim” community (article 38).82
The question of how to recognize Muslim faith and practice while simultaneously subjecting them to French oversight would persist long after 1834.83 Under the regency, the sovereign remained bound by Qur’anic prescription. Its French counterpart, Laurence noted, was not similarly limited.84 Asserting the prerogative to overturn qadis’ judgments, he expanded French authority and influence over the tribunals.85 Other members of the commission had shown more wariness on this point. “It is necessary to allow the already existing customs [usages] to remain in place,” one member noted, so as “not to upset the qadis’ jurisdiction and follow the Arabs’ mœurs.”86 Insisting on such differences only underscored a potentially disruptive shift. The 1834 ordinance, by placing Muslim tribunals within a French juridical hierarchy, effectively made “Muslim law” a French law.
As in other colonial contexts, this plural legal structure reified the coherence of native communities, families, and laws.87 But it did not prevent conflicts over the legal status of persons and property. On the contrary, it gave rise to them. Establishing strict lines of religio-legal community could not accommodate individuals, women in particular, whose desires and actions transgressed those bounds.
On September 2, 1834, mere weeks after the new judicial apparatus had been adopted, a “Moorish woman” named Aïcha bent Mohammed appeared before Alexandre Pierre Cottin, the commissaire du roi and acting mayor of Algiers. She declared her solemn intention to convert to Christianity. Cottin questioned her motives. According to an account by the translator Joanny Pharaon, her husband had beaten and divorced her after she had made herself too visible to Europeans.88 Aïcha admitted to Cottin that she had been mistreated, but claimed that the abuse had not inspired her new faith. A divorced woman, she asserted that her husband “no longer has any power over me.” Cottin nonetheless sought to dissuade her, insisting that “even if you remain Muslim, you will be no less protected by French authority than if you become Christian.” The woman remained adamant, insisting on her heartfelt conviction: “I repeat, I fear nothing. I want to become Christian to be Christian; it is my heart that wants it this way [c’est mon coeur qui l’exige ainsi].” Her pleadings apparently persuaded Cottin. In his report to the interim governor-general Théophile Voirol, he recommended that Aïcha be allowed to convert after a few days of considered reflection.89
As in the Colombon Affair, controversy over Aïcha’s conversion distilled jurisdictional conflicts between civil and military authority as well as between French and Muslim law. Her case further demonstrates how the newly adopted legal order was tested and transformed by the colony’s new subjects, including women. Presuming reified religious communities and families, jurists and politicians overlooked the question of conversion. In revealing this blind spot in their fantasy of legal coherence, Aïcha created a quandary that rose to the highest levels of the administration, from the governor-general to the minister of war. While she was a socially marginal subject, her legal status became “symbolically central” to the organization of Algeria’s new colonial legal order.”90
Following the paper trail of Aïcha’s case reveals dramatic plot twists, local conflict, administrative incomprehension, and ministerial backtracking, all in a desperate effort to remedy a vexing situation from afar.91 While based on the presumption of discrete religious communities, official policy on legal and religious status was not clearly worked out in advance. Aïcha’s predicament shows how contingency and uncertainty, as much as strategic planning, shaped Algeria’s legal order.
As the interim governor-general and other officials soon learned, the legal implications of Aïcha’s change in belief quickly became a source of local scandal, provoking, much like the Colombon Affair, strong emotions and visceral reactions. According to a report by Civil Intendant Pierre Genty de Bussy, “the event created a sensation and became the pretext for two or three outbursts that reached a fever pitch [scènes poussées de part et d’autre au dernier degré].”92 The incident reignited conflict between civilian and military authorities, as Genty de Bussy blamed Voirol for the furor. As Voirol served in an interim position, his authority was insecure.
Voirol explained to the minister of war that he had urged Cottin to dissuade the woman from her spiritual project.93 But Aïcha had seemed to justify the conversion by insisting on her personal belief. Voirol thought that to deny her protection would represent an “abdication of authority.” In his view, the government, while abstaining from proselytism, had to allow “complete liberty to individual determinations.” In his own meeting with her, Voirol concluded that Aïcha “was free in all her actions.” At the same time, he noted that in Algeria’s judicial organization “religion engendered a kind of nationality.”94 Acting in the name of religious freedom, he felt that he could not stand in her way, even if the legal effects of her action remained unclear. By his own admission, he had granted permission to the abbé Spitz, chaplain of the army’s garrison in Algiers, to act as her spiritual adviser.95 Had Voirol obeyed the law, or had he violated it? If the latter, which law or laws had been broken?
The problem was that Muslim law was also French law. After the 1834 ordinance, religio-legal status was an attribute of French sovereignty, and not merely a matter of personal conviction. “Muslim” tribunals were indeed “maintained” for natives, but the governor-general appointed their qadis and muftis “in the name of the King.”96 Once they were appointed by Voirol on September 12, these magistrates had legal authority over all “Muslim” subjects in Algiers.97 Assuming that individuals would retain allegiance to their confessional communities, the law made no provision for individuals who, like Aïcha, chose to convert.
News of Aïcha’s apostasy spread throughout the city, creating legal and social chaos. The recently named Maliki qadi Abdel Aziz wanted to dissuade Aïcha from realizing her plans. According to Voirol, she feared being subjected to the physical punishment of the bastonnade, which the French regularly denounced as emblematic of Algerian cruelty. She cried out for help when she was brought before the qadi.98 “Freed” by several French military translators, including the Syrian-born priest Jean-Charles Zaccar, Aïcha took refuge in a church.99 With the help of the abbé Larue, she converted on the spot, hoping, according to Genty, to escape the clutches of her “juges naturels.”100
The newly named Muslim jurists were scandalized. Abdel Aziz threatened to kidnap her and return her to her husband. In a public protest, he closed his tribunal, leaving the local population without their judge and notary. Notables addressed petitions to the Ministry of War in support of the qadi. They explained that, while divorced, Aïcha had violated her prescribed three-month waiting period or idda, during which time she remained under the qadi’s authority and that of her husband. Citing the qadi, one petition denounced the government for violating the terms of the Convention of 1830, condemning its actions as “tyrannical.” Seizing on the legal guarantees granted by the French state to the recently named Muslim justices, it urged that “for everything that touches on our religious law, we cannot tolerate any tyranny.” Grasping the political power of claims to religious liberty, Abdel Aziz underscored how “the Sultan of France has promised us, through his representatives, that our religion, our women, our children would be respected.” When the government failed to honor its word, he reportedly declared, “I can no longer sit at this tribunal, I cannot consent to see justice scorned.”101 The qadi and the notables who penned these petitions had a clear sense of what the convention’s language of religious freedom entailed: Muslim men’s authority over women as a legal right.
Claiming that Voirol’s decision had done irreparable damage, Intendant Genty registered his complaints with the Ministry of War. “In this one affair,” he observed, “the Commander-in-Chief has lost in the eyes of the Maures all that he had accomplished in two years of paternalist government…. This woman should have been left in the hands of her juges naturels; her conversion should not have been so carelessly permitted.”102 In this contest, in contrast to the Colombon Affair, the civil intendant sided with the qadi and the petitioners, while the governor-general appeared to take the side of the woman.
The Ministry of War concurred with the civil intendant. An internal report, again written by Paravey, denounced Voirol’s failure to respect the “independence of the Muslim magistrates.”103 The political bind was clear: the young woman’s actions, by violating Muslim officials’ jurisdiction, also compromised secular legal authority and French rule. In his previous report on the organization of Muslim justice, Paravey had held that “family matters” should remain private and free of French intervention. This principle also informed the policy that he elaborated as legal adviser to the Ministry of War.
Upon arrival in the colony later in the month, the permanent governor-general, Jean-Baptiste Drouet, comte d’Erlon, rectified Voirol’s misguided policy. As Paravey’s internal report explained, “the administration has other things to do than to offer up commonplaces about religious liberty.” The Ministry of War clearly indicated to the governor-general that conversions should be opposed in order to prevent “anything that might trouble order.”104 To justify its volte-face, the ministry cast doubt on the purity of Aïcha’s motives. According to rumors detailed in several anonymous letters and hinted at by Genty, the real reason that Aïcha wanted to convert was that she was having an affair with a European.105 Taken in by her claims, Voirol had mistakenly “protected debauchery in the name of the freedom of conscience.”106 This focus on supposed sexual misconduct highlights the vulnerability of Aïcha’s claim to freedom. Working in concert with the qadi, the ministry and new governor-general reasserted sexual and legal order. While there is no specific indication of Aïcha’s individual fate in the archive, her actions ultimately had significant, if less than emancipatory, effects in that the ministry’s decision set a precedent for subsequent policy.
Confused and contradictory missives from all concerned communicated the intensity of emotions provoked by Aïcha’s conversion. Forced to sort out dissonant and competing narratives by civil and military authorities as well as local notables, the Ministry of War relied on gender hierarchy to structure and confirm the new legal order. Faced with epistemic confusion, French authorities drew on patriarchal fantasy to enforce women’s subordination. The ministry’s policy reinforced legal and religious as well as sexual boundaries between communities. Doing so entrenched the legal and religious differences that simultaneously authorized and confounded the Algerian colonial project.
In the months that followed, more women came forward to convert. The handling of their requests illuminates how gender structured emerging policy. A second woman named Aïcha bent Mohammed (or perhaps it was the same petitioner?) came before Governor-General d’Erlon in February 1835. According to local officials, she was an orphan and prostitute. Claiming that the qadi had imprisoned and beaten her on learning of her intentions, she sought French protection. Seeking to avoid the disorder created by Voirol’s earlier efforts, d’Erlon adopted an alternative solution: he sent her to Marseille aboard a government vessel.107 As in the Colombon Affair, deportation effectively eliminated challenges to the new colony’s segmented juridical order. (It was also a policy that Rovigo had adopted for prostitutes who refused to submit to medical surveillance.)108 In May, yet another woman approached d’Erlon with a conversion request. She wanted to escape her mother-in-law’s mistreatment and her father’s excessive authority. The governor-general refused to extend protection to her and returned her to her family. “Conversion,” he explained, would “in no way absolve her of the obedience she owed her father.” Technically free to follow her conscience, she remained subject to her father’s law.109 The Ministry of War endorsed d’Erlon’s decisions in both cases. In response to the threat posed by these women’s conversions, it reasserted the new order’s fragile integrity. When the public prosecutor allowed a mauresque widow, suspected of being a prostitute, to appeal a qadi’s judgment to the French tribunal, ministerial officials clearly indicated in the margin of the prosecutor’s report that “he was wrong.”110 The ministry’s policy thus anchored Algerian women in their family and “Muslim” jurisdiction.
While advocates of “religious freedom” came to these women’s defense, the ministry’s policy firmly endorsed Algerian women’s subjection to local law. La Rochefoucauld, who, as we have seen, denounced earlier violations of the 1830 Convention and Rovigo’s seemingly arbitrary treatment of Colombon, lamented authorities’ treatment of these women. Endorsing Voirol’s gesture of protection, La Rochefoucauld granted women confessional autonomy. In his view, “the future prosperity of the colony” would be “founded on conversions.”111 His ideal of a Catholic mission civilisatrice would not win out.112 In an effort to secure French sovereignty and guarantee the stability of the colony’s nascent legal order, the Ministry of War’s apparently more “secular” model of colonization enforced a patriarchal vision of “Muslim law.”113
As the decisions taken in these conversion cases indicate, the Ministry of War tried to limit the Catholic Church’s meddling in colonization by blocking it from proselytizing to native Algerians. The government wanted to secure a nascent, but still quite precarious, order. French authorities went beyond simply tolerating and “preserving” religious and family power. Authorized by military as well as judicial force, familial power dynamics within Algerian households became instruments and extensions of French rule.
Algeria’s early colonial judicial organization did not simply “maintain” the exregency’s legal system. It sought to grant the colony a more certain legal foundation in order to better govern Algeria’s population and its land, securing it for colonization. As Laurence made clear in his parliamentary report, the recognition of “Muslim law” with respect to property and property titles was imagined as a way to peacefully promote settlement, allowing seizure to proceed smoothly rather than violently. This fantasy of easy land transfer also entailed a patriarchal fantasy about the intimate relationship between the family and religion in Muslim as well as French law.
As Aïcha’s case makes clear, questions about the legal attributes of both persons and things persisted beyond the moment of the colony’s legal “birth.” As we will see throughout this book, women’s legal status continued to represent a troublesome node of colonial government. These conflicts were embedded in the colony’s judicial organization from the outset precisely because it was founded on an uneasy association between Muslim religion and law. Colonial officials imagined that they could appease Muslim men’s religious sentiments by enforcing women’s legal subordination. As a result, the French administration did not seek to disrupt local patriarchal power, even if some magistrates imagined that they could liberate Algerian women. Few early efforts were made to “assimilate” Algerian natives—either Muslim or Jew—to French civil law. Colonial officials invested military and legal force behind an ideally segregated and gendered juridical system. Jurists’ fantasies of liberating and possessing Algerian women sustained rather than undermined these legally entrenched differences.
1. Letter 54, Rovigo to Min. of War, January 27, 1832, in Savary, Correspondance, 1:140.
2. Julien, Histoire de l’Algérie contemporaine, 90.
3. Savary, Correspondance, 1:140.
4. Letter 54, Rovigo to Min. of War and Président du Conseil, January 27, 1832, ibid., 142. Also, Lekéal, “Entre séduction charnelle et spirituelle.”
5. Julien, Histoire de l’Algérie contemporaine, 64; Heggoy, “Looking Back,” 59; McDougall, History of Algeria, 58.
6. Kateb, Européens, “indigènes” et juifs, 16.
7. “Convention entre le général en chef de l’armée française [Bourmont] et son Altesse le dey d’Alger, 5 Juillet 1830,” in Estoublon and Lefébure, Code de l’Algérie, 1:1.
8. Brower, Desert Named Peace, 15–17.
9. Pichon, Alger sous la domination française, x.
10. On fantasy and the staging of originary conflicts see Pontalis and Laplanche, “Fantasy and the Origins of Sexuality.”
11. Agha to Rovigo, February 3, 1832, in Savary, Correspondance, 3:59–60. Letter 39 in Pichon, Alger sous la domination française, 446–49.
12. Letter 63, Rovigo to Président du Conseil, January 30, 1832, in Savary, Correspondance, 1:159.
13. Mani, “Contentious Traditions,” 79.
14. “Ordonnance du roi qui confie à un Intendant civil, en Alger, la Direction et la Surveillance des services civils et financiers et de l’administration de la justice,” December 1, 1831, Bulletin des Lois, vol. 3, 2e partie, no. 126, 603–4. See also Julien, Histoire de l’Algérie contemporaine, 87–88.
15. Letter 63, Rovigo to Min. of War, January 30, 1832, in Savary, Correspondance, 1:163.
16. Pichon, Alger sous la domination française, 94.
17. Ibid., 68.
18. Pichon to Rovigo, January 29, 1832, in Savary, Correspondance, 3:40–41.
19. Letter 64, Rovigo to Pichon, January 30, 1832, in Savary, Correspondance, 1:166. For a related account of these competing conceptions of law see Lekéal, “Justice et pacification.”
20. I am extending here the Freudian reference in Gayatri Spivak’s famous formulation of the fantasy of imperial rescue, “white men saving brown women from brown men.” Spivak, “Can the Subaltern Speak?,” 93; Freud, “Child Is Being Beaten.”
21. Julien, Histoire de l’Algérie contemporaine, 89.
22. Bonnellier, Mœurs d’Alger, x.
23. J. Pharaon, De la législation française, musulmane, et juive. Also, Samuels, “Philosemitism and the Mission Civilisatrice”; Schreier, Arabs of the Jewish Faith; Grigsby, “Orients and Colonies.”
24. Bonnellier, Mœurs d’Alger, 177–78.
25. Ibid., 214.
26. Ibid., 224.
27. Ibid., 232.
28. Said, Orientalism; Yeğenoğlu, Colonial Fantasies; Lazreg, Eloquence of Silence.
29. Le Figaro, September 23, 1833.
30. “Arrêté portant institution et détermination de la juridiction et de la compétence du qadi maure, du tribunal israélite, de la cour de justice et du tribunal correctionnel,” October 22, 1830, in Collection des actes du gouvernement, 24–26.
31. Spitzer, French Generation of 1820; Goldstein, Post-Revolutionary Self.
32. Cousin, Fragments philosophiques, 415.
33. Ibid., 422.
34. C. H. Paravey, “Rapport à Monsieur le Garde des Sceaux sur l’Organisation judiciaire à Alger,” October 3, 1832, AN BB30/616. Emphasis in the original. On liberal accounts of the dey see Sessions, By Sword and Plow, 58–59. On the vicissitudes of ideas of Oriental despotism see Pitts, Boundaries of the International.
35. See Hoexter, “Qadi, Mufti and Ruler.” On translators see Messaoudi, “Renseigner, enseigner.”
36. Paravey, “Rapport à Monsieur le Garde des Sceaux,” AN BB30/616.
37. Khodja, Le miroir, 207.
38. Paravey, “Rapport à Monsieur le Garde des Sceaux,” AN BB30/616.
40. Cousin, Cours d’histoire de la philosophie morale, 20–21.
41. Paravey, “Rapport à Monsieur le Garde des Sceaux,” AN BB30/616.
42. Carpentier, Alger, M. le Duc Rovigo, et M. Pichon, 4–5.
43. Hain, À la Nation, sur Alger, 21–22.
44. Ibid., 89.
45. Ibid., 91. Pichon, Alger sous la domination française, 290.
46. Baron Mounier recommended the appointment of a commission of “disinterested men” on April 19, 1833: Archives parlémentaires, ser. 2, vol. 82 (1833), 670.
47. See the official instructions, Programme des instructions pour la commission spéciale à envoyer en Afrique, 22 juin 1833, 2. See also Julien, Histoire de l’Algérie contemporaine, 106–10; Yacono, “La Régence d’Alger en 1830”; Blais, “Qu’est-ce qu’Alger?”
48. La Rochefoucauld, Procès-verbaux, Chambre, Archives parlémentaires, ser. 2, vol. 82 (March 30 to April 20, 1833), 271–72.
49. Ibid., 273. On anticolonial argument see Pitts, “Republicanism, Liberalism, and Empire.”
50. Programme des instructions pour la commission spéciale à envoyer en Afrique, 22 juin 1833, 4.
51. Ibid., 30–31.
52. For a discussion of other controversies see Schley, “Tyranny of Tolerance.”
53. Programme des instructions pour la commission spéciale à envoyer en Afrique, 22 juin 1833, 32–33.
54. Ibid., 35.
55. Ibid., 134.
56. The jurists interviewed included R. Vincent, Roland de Bussy, and the procureur du roi Hautefeuille, as well as Maliki mufti Mustapha ben Kebabti, the rabbinical judge Aron Moatti, and the translator Samuda. See Guénoun, L’ordonnance du 10 août 1834, 35.
57. Programme des instructions pour la commission spéciale à envoyer en Afrique, 22 juin 1833, 162.
58. Procès-verbaux et rapports de la Commission d’Afrique, 67–68.
59. Pichon, Alger sous la domination française, 88. For the complete exchange, 362–73. And Letter 50, Rovigo to Pichon, February 16, 1832, in Savary, Correspondance, 1:163.
60. On the conflict between Pichon and Rovigo see Dumasy, “Propriété foncière, libéralisme économique et gouvernement colonial,” 50. On the rhetoric of “illusion” and “fantasy” in the parliamentary debates see Sessions, By Sword and Plow, 213.
61. Khodja, Le miroir, 38; Temimi, “L’activité de Hamdan Khudja à Paris”; Pitts, “Liberalism and Empire”; Pitts, Boundaries of the International, 138–41.
62. Khodja, Le miroir, 174.
63. On gendered representation of Louis Philippe see Margadant, “Gender, Vice, and the Political Imaginary”; Surkis, “Carnival Balls and Penal Codes.”
64. Khodja, Le miroir, 205–7.
65. Procès-verbaux et rapports de la Commission d’Afrique, 56. See also Réfutation de l’ouvrage de sidy Hamdan-Ben-Othman-Khoja; Khoja, Réponse à la “Réfutation de l’ouvrage d’Hamdan-Khoja.” And Khodja, Le miroir, 265–314. For Khodja’s impact on the commissions see Pitts, “Liberalism and Empire,” 291.
66. “Analyse et observation sommaire sur le mémoire remis au Ministre le 3 juin 1833 par Sidi Hamdan Bin Othman Khodja,” in Temimi, Recherches et documents d’histoire maghrébine, 139–40.
67. Sade, Procès-verbaux, Chambre, April 28, 1834, Archives parlémentaires, ser. 2, vol. 89, 408–9. On the medical dimension of these concerns about the degenerative effects of the military campaign see Dodman, What Nostalgia Was, 151.
68. La Pinsonnière, “Rapport sur la Colonisation de l’ex-Régence d’Alger,” in Chambre des députés, Colonisation de l’ex-régence d’Alger, 9. And Pitts, “Republicanism, Liberalism, and Empire,” 278.
69. La Pinsonnière, “Discours de la Pinsonnière, April 29, 1834,” in Chambre des députés, Colonisation de l’ex-régence d’Alger, 203.
70. La Pinsonnière, “Rapport sur la Colonisation,” ibid., 7.
71. On colonial law as “lawfare” see Comaroff, “Colonialism, Culture, and the Law,” 306.
72. La Pinsonnière, “Rapport sur la Colonisation,” Chambre des députés, Colonisation de l’exrégence d’Alger, 39–40.
73. Laurence, Procès-verbaux, Chambre, April 30, 1834, Archives parlémentaires, ser. 2, vol. 89, 622.
74. Ibid., 624.
75. Ibid., 627.
76. La Pinsonnière, “Rapport sur la Colonisation,” Chambre des députés, Colonisation de l’exrégence d’Alger, 37.
77. See, for example, Passy’s invocation of the “trail of tears.” He concluded: “There is no modern colonization that did not result in the natives’ expulsion, extermination, or reduction to servitude.” In Procès-verbaux, Chambre, May 1, 1834, Archives parlémentaires, ser. 2, vol. 89, 646.
78. On the instability in French conceptions of Algerian property and the problem of proof see Grangaud, “Prouver par l’écriture.”
79. “Loi concernant l’exercice des droits civils et des droits politiques dans les colonies” and “Loi concernant le régime législative des colonies,” April 24, 1833, in Collection complè te des lois, 33:104–14.
80. Dupin, in Procès-verbaux, Chambre, May 1, 1834, Archives parlémentaires, ser. 2, vol. 89, 690.
81. “Ordonnance qui crée le commandement général,” in Estoublon and Lefébure, Code de l’Algérie, 1:7–8.
82. “Ordonnance du Roi concernant l’organisation de l’Ordre judiciaire et l’administration de justice dans les Possessions françaises du Nord de l’Afrique, August 10, 1834,” in Bulletin des Lois, pt. 2, section 1, no. 324 (1834), 123–35.
83. Christelow, Muslim Law Courts; Barrière, Le statut personnel des musulmans.
84. Procès-verbaux et rapports de la Commission d’Afrique, 283.
85. Ibid., 286.
86. The member is not named in the procès-verbaux; see ibid., 305.
87. Cohn, Colonialism and Its Forms of Knowledge; Merry, “Law and Colonialism”; Benton, “Colonial Law and Cultural Difference”; Stephens, Governing Islam.
88. J. Pharaon, De la législation française, musulmane, et juive, 179.
89. Alexandre Pierre Cottin to Governor General Théophile Voirol, September 3, 1834, SHD 1 H 28.
90. Benton, Law and Colonial Cultures, 209.
91. On the incoherencies of colonial administration see Stoler, Along the Archival Grain.
92. Genty to Min. of War, September 13, 1834, SHD 1 H 28. J. Pharaon, De la législation française, musulmane, et juive, 179–81.
94. Voirol to Min. of War, September 11, 1834, in Voirol, Correspondance, 787.
95. Voirol to Min. of War, September 11, 1834, ibid., 784. On early debates over Muslim conversion see Francis, “Civilizing Settlers,” chap. 1.
96. Ordonnance du Roi concernant l’organisation de l’Ordre judiciaire, August 10, 1834, article 25.
97. Note, September 12, 1834 SHD 1 H 28.
98. Voirol, Correspondance, 785. On the punishment see Lanjuinais, La bastonnade, 1.
99. Féraud, Les interprètes de l’Armée d’Afrique, 182–84. On political divisions among translators see Messaoudi, “Renseigner, enseigner.”
100. Genty to Min. of War, September 13, 1834, SHD 1 H 28.
101. Translation of the “Requête des habitants d’Alger,” September 13, 1834, SHD 1 H 28. For other examples of petitions see Schley, “Tyranny of Tolerance,” chap. 3.
102. Genty to the Min. of War, September 13, 1834, SHD 1 H 28.
103. Min. of War, “Rapport au Ministre le 13 octobre 1834 sur la conversion d’une mauresque à Alger.” See also the correspondence based on the report between the minister of war and Governor-General d’Erlon, October 13, 1834, SHD 1 H 30.
104. Min. of War, “Rapport au Ministre le 13 octobre 1834, sur la conversion d’une mauresque à Alger,” SHD 1 H 30.
105. Min. of War, “Rapport au Ministre le 13 octobre 1834” mentions “two private letters.” See also the “Bulletin analytique,” which alludes to a “curieuse lettre d’un arabe racontant l’affaire de la mauresque.” And Genty to Min. of War, September 13, 1834, in SHD 1 H 30.
106. Min. of War, “Rapport au Ministre le 13 octobre 1834,” SHD 1 H 30.
107. Gov. Gen. to the Min. of War, February 1, 1835, and Minute, Min. of War to d’Erlon, February 27, 1835, SHD 1 H 30.
108. Letter 51, Rovigo to Min. of War, February 17, 1832, in Savary, Correspondance, 1:159.
109. D’Erlon to Min. of War, May 14, 1835, SHD 1 H 32.
110. Compte rendu de l’administration de justice, 3rd trimester, 1835–36, in AN BB30/616.
111. La Rochefoucauld-Liancourt, Note sur l’administration d’Alger, 27. See also Pellissier de Reynaud, Annales algériennes, 2:206. On Catholic conversion and women’s autonomy see C. C. Ford, Divided Houses.
112. Curtis, Civilizing Habits; Francis, “Civilizing Settlers.”
113. J. W. Scott, Sex and Secularism. On women’s conversion as a challenge to the state regulation of religion see Mahmood, Religious Difference in a Secular Age.