Although slavery had been entrenched in the socio-economic fabric of the Maghribi (North African) society for over millennia, its abolition during the long-nineteenth century can hardly be disassociated from the specter of Western European political, diplomatic, and economic domination that characterized the region from the late eighteenth century onward.Footnote 1 At the turn of the nineteenth century, such was the case when piracy and corsair activities involving the Ottoman regencies of Algiers, Tunis, and several small Islands around the southern Mediterranean spearheaded the process of European intervention for abolitionism in North Africa.Footnote 2 Beginning in 1814, after the United States had blamed Great Britain and France (both engaged at the time in the Napoleonic Wars) for covertly supporting corsairs hindering American trade in the Mediterranean, Britain became alarmed by the scale of the corsair activities and its disruption of European commerce and maritime navigation across the Mediterranean.Footnote 3 In the wake of the Napoleonic Wars and with the conclusion of peace following the Congress of Vienna in 1814–1815, British naval forces under the command of Lord Exmouth were dispatched to patrol the western Mediterranean and to guarantee the freedom of British and other European subjects from slavery in North Africa. Algerians, however, resisted the Congress demands and even executed a group of Sicilian captives under British protection. In response, Lord Exmouth jointly with the Dutch navy bombarded the city of Algiers and released hundreds of prisoners, mostly Neapolitans, Sicilians, and Sardinians.
On April 5, 1816, Exmouth then sailed east to Tunis, anchored off the La Goullete port in the Bay of Tunis where he exerted similar pressure on the Bey of Tunis.Footnote 4 To save Tunis from unnecessary destruction, Mahmud Bey (reigned 1814–1824) quickly capitulated and “released above 2500 miserably poor creatures” in Tunis. Reporting the peaceful conclusion of his mission to the colonial secretary, Lord Bathurst, Exmouth exclaimed: “Thank God they are over, and the empty dungeons-called barracks by them-when looked into, are shocking to humanity.”Footnote 5 Despite Exmouth's celebration that “the system of slavery will no longer … persist in the Regency,” it was not until 1830, and after diplomatic pressure that enslavement of European subjects was finally eradicated.Footnote 6 Meanwhile, the enslavement of both Black Africans and mamluks entering the regency continued unabated until Ahmad Bey launched his ambitious anti-slavery program prohibiting the slave trade and slavery throughout the regency.Footnote 7 From the mid-1814, however, the bey banned the Ghadamese slave caravans and within five years enacted a mass emancipation decree in 1846 outlawing the institution of slavery throughout the regency, making Tunisia the first to abolish slavery in the Muslim world. While the bey's decree marked the first of such an unprecedented measure, attracting a barrage of compliments from anti-slavery societies around the globe, within Tunisia it conflicted with the local notions of slavery and thus prompted an earnest process of legitimation for the formal abolition of slavery before the Majlis al-Sharʿī (Sharia Council for Judicial Ordinance), without whose legitimation abolition would have remained religiously and culturally contentious.
In this paper, I revisit how abolition was carried out and justified from within an Islamic legal framework. Specifically, the paper investigates the internal logic underpinning Ahmad Bey's emancipation decree by analyzing and contextualizing his argument favoring abolition before the Majlis al-Sharʿī. How did the bey justify his decision to ban such a longstanding socio-economic institution that was well-entrenched and sanctioned by the sharia? After a cursory overview of the literature on abolition in Tunisia, the paper begins by providing an essential background to the Majlis al-Sharʿī, its structure and judicial framework.
Understanding the structure of the Majlis and its judicial framework is central to comprehending the nature and character of the emancipation decree. In the next section, the paper takes a closer look at the three arguments advanced by Ahmad Bey to justify abolition before the Majlis; (1) ill-treatment of slaves, (2) enslavement of fellow Muslim brethren, and (3) maslaḥa al-siyāsiyya (endangering the public good). The final section contextualizes Ahmad Bey's final argument on the precept of maslaḥa al-siyāsiyya, which more than the illegal enslavement and ill-treatment of the enslaved Black Africans sealed the bey's arguments favoring abolition.
The Road to the 1846 Istiftāʾ
Notwithstanding the barrage of compliments Ahmad Bey's unprecedented emancipation decree enthralled around the globe, within the regency it faced unsurmountable challenges.Footnote 8 Soon after the bey proclaimed slavery abolished, resistance to the emancipation decree particularly in the interior and southern part of the regency, where enslaved Blacks had been integral to the agricultural economy, rose steadily. Within less than a decade, well-to-do families including a sizeable number of the beylical ruling class in the Sahel region of Sousse and Monastir and in the city of Tunis emulated slave owners’ violation of the emancipation decree in the interior and southern part of the regency.Footnote 9
In 1853, for instance, the year Ahmad Bey was bedridden by paralysis, members of the ruling class took advantage of his illness by importing slaves from the Levant and Istanbul at alarming scale into the regency thus prompting British consular officials to file numerous complaints accusing them of disregarding the decree enacted a decade earlier outlawing slavery and the slave trade. Unlike the violations of the abolition decree in the interior and the southern part of the regency, the context for the violation of the decree by the beylical ruling class is worth noting. As they faced mounting pressure from the British consular officials as a result of increased trafficking of slaves into the regency, the ruling class claimed that the enslaved were free upon setting foot in Tunisian territory. Following Ahmad Bey's death in 1855, his successor, Mohammad Bey (r. 1855–59), openly defied European consuls over the question of slavery and, citing Islamic law, even refused to recognize the abolition decree.Footnote 10 Worse yet, in 1858 he commissioned tribal chiefs in the interior of southern Tunisia still importing slaves into the regency from the western and central Sudan to purchase slaves for him from Bornu for his own use, though he died before they arrived.Footnote 11 In documenting Mohammad Bey's flagrant disregard for the abolition decree, the Tunisian chronicler Ahmad Ibn Abi Diyaf berated him as traditionalist and anti-reformist, whose actions encouraged the revival of both the caravan slave trade and the slave traffic across the Mediterranean. Unsurprisingly, until the late 1880s, enslaved Black Africans continued to enter the regency from the western and central Sudan, leading to what the Tunisian historian, Abdelhamed Largueche termed the second abolition.Footnote 12 This begs the question: What accounts for the Tunisian precedence and exceptionalism for the abolition of slavery in the Muslim world during the modern period?
During the 1960s, the French historian Robert Brunshvig, who noted the absence of indigenous antislavery movements in the Islamic world, offered a classic perspective of foreign pressure thesis. According to Brunschvig, the abolition of slavery in Tunisia which occurred exactly two decades after Exmouth's expedition must be understood not as an outcome of the radical European action that led to the abolition of White or Christian European slavery in North Africa, but mainly as a consequence of the overwhelming Western European abolitionists’ pressure to expand the global abolition of the African slave trade to Muslim lands. To Brunschvig, while Islam in theory and practice has favored emancipation of slaves, citing Ahmad Bey's hurried and sensational trip to Paris only a month after his 1846 emancipation edict, he attributed the bey's abolition measures to “overwhelming foreign influence.”Footnote 13 Carl Leon Brown, who did not fully subscribe to Brunschvig's foreign pressure thesis, emphasized European influence and stressed modernization and westernization schemes as the underlying motives for the abolition of slavery in Tunisia.Footnote 14 For Brown, though, the abolition of slavery in Tunisia occurred for two reasons. First, there were voluntary measures by Ahmad Bey, who did not wish to implement the Ottoman tanzimat, and who wanted to show the Ottoman Empire that Tunisia was moving at its own pace in terms of reforms. Second, Brown suggested that similar to Ahmad Bey's “attempt at westernizing the [Tunisian] army, (the nizamy army)” his freeing of slaves were vain westernization measures undertaken “to be accepted by Europe's rulers as a fellow member of the [European] club.”Footnote 15
Along the line of Brown's progressive westernization thesis, Tunisian historians, including Khalifa Chater and Abdelhamid Larguèche, have insisted on local and internal modernization scheme like those embraced by Mohammad Ali of Egypt and the Ottoman tanzimat reforms. While Chater, for instance, stresses the importance of Ahmad Bey's reforms during the 1840s, Larguèche emphasizes the impact of the French Enlightenment ideals along with internal reforms as important benchmarks for abolition.Footnote 16 For these Tunisian historians, too, to understand the 1846 abolition of slavery in Tunisia, one must look at the chronology of internal reform and Tunisia's leading role in modernization in the Islamic world. In illustrating how abolition occurred in a socio-religious environment unbeknown to European abolitionism, in this paper, I highlight the extent to which external political pressure shaped the course of abolition. By placing the abolition at the heart of the changed political and economic status quo in North Africa after the Congress of Vienna 1815 and the challenges placed on Tunisia's quasi-autonomy, I hope to show that the lofty Sharia principles Ahmad Bey employed in his mass emancipation decree were—like the modernization scheme—not the main causes behind the bey's preference for abolition. By issuing an Istiftāʾ to the Majlis, Ahmad was not following the sharia principles outlined in the document. The mobilization of sharia principles was a required formal reference to shared religious norms, but sharia principles per se did necessitate the passing of an abolition decree. Reasons of statehood were primary; or put differently, the urgency of safeguarding the autonomy of the Beylic, more than efforts at selective “modernization” or “reform,” triggered the move to abolition and the emancipation of the enslaved Black population, which was achieved in 1846.
The Istiftāʾ's Judicial and Legislative Framework
Ahmad Bey's principal arguments favoring abolition before the regency's highest religious and legislative body were solidly anchored in a legal framework and tradition that must be examined first, before discussing the bey's motivations. Of particular importance are two distinct yet interrelated elements of the legal framework of his argument; the Majlis al-Sharʿī and the Turco-Ottoman employment of the canonical precept of maslaḥa (welfare of the community) as political and legislative tools. Together, these two elements in the legal framework determined the valor of the bey's arguments in his 1846 Emancipation Decree.
Following the conquest of Ifriqiyya in 1574 and its absorption into the orbit of the Ottoman Empire, the Beylerbeys (Ottoman Provincial governors also called Pashas) became confronted with the monumental challenges entailed by the governance of the new eyālet (province) that now incorporated the ousted Hafsids’ religio-political system into the Diwan al-asker (military ruling council). The Beylerbeys integrated the Hafsids's existing institution of the Majlis al-Sharʿī to complement the Diwan al-asker.Footnote 17 Before the Ottoman conquest of Ifriqiyya, the Hafsids rulers had governed through the Majlis in concert with the ulama, all of whom were Malikites. These ulama functioned alongside the Hafsid political establishment as a religious jurisconsult in the Privy Council attached to the Hafsid's Diwan (court). After incorporating the Majlis as a religious Privy Council into the Diwan al-Asker, except for a few Malikite ulama whom the Turkish administration maintained as kuttāb (clerks), many of these ulama were replaced by Hanafite ulama brought directly from Istanbul. Moreover, in lieu of the Malikite Chief Qādī (judge), the Beylerbeys created the position of the Shaykh al-Islam, obviously modeled along the lines of Sheikhüislam in Istanbul.Footnote 18 Like the Beylerbey (the chief provincial governor) overseeing the Diwan al-asker, the Shaykh al-Islam presided over the Majlis, now an integral component of the Turkish military decision-making body. This structure was put in place to ensure that the Hanafite Madhhab, known for its flexibility in matters of governance, would be adhered to by the minoritized ruling Beylerbeys. The Hanafite ulama would not only preside over the Majlis but also have precedence in decision-making over the existing Malikite rite whose followers comprised the majority of the regency's indigenous population.Footnote 19 With such structural imbalance in the composition of the Diwan, the ruling class made up of the deys could tilt the Majlis's decision to its favor in the province.
As well as structuring the Majlis al-Sharʿī to align with the interest of the Beylic, the ruling class also relied on the Turco-Ottoman concept of primacy of the state rooted in the precept of maslaḥa to justify policy decisions in religious terms. Originally introduced by the jurists as a hermeneutical judicial tool to adjudicate ambiguous legal cases that the sharia did not provide explicit guidance from the Quran, the Hadith or Qiyās (analogical reasoning) to resolve, the jurist relied on this principle to align their ruling according to the broader objective of the lawgiver (al-maqāsid al-Sharīʿat). Until the middle of the eighteenth century, control of the maslaḥa process had been the prerogative of the jurists, not the sultans. Since Abu Hamid al-Ghazali (d. 1111), the medieval Islamic theologian argued for considering maslaḥa as a hermeneutical and judicial tool to uphold the broader objectives of the Sharia, Muslim jurists in subsequent centuries have codified this precept into the judicial procedure of Islamic jurisprudence (usūl al-fiqh). Through this legal tool and procedure, they upheld a God-willed obligation for the collective welfare of the Muslim umma (community).Footnote 20 After the middle of the eighteenth century, however, Ottoman rulers faced with opposition from religious authorities to implement fiscal reforms engendered by practical necessities gradually co-opted the application of this legal tool into the Sultanic canonical laws affirming the primacy of the state. Over time, Ottoman sultans seeking to legitimize difficult reforms in religious terms firmly encoded the precept of maslaḥa into the Sultanic canonical laws centered primarily on secular principles. According to Thomas Naff who described this practice as a peculiar Ottoman response in dealing with practical necessities of statecraft, the encoding of the precept of maslaḥa into the Sultanic laws “was never clearly or explicitly formalized by legal or religious authorities; rather, it emerges from issuing decrees, the application of positive laws and from ad hoc necessities.”Footnote 21 Guided by this practice, the state resorted to this precept to justify the preservation of the welfare of the state (al-maslaḥa al-siyāssiya), particularly when dealing with difficult military, political, economic reforms based on western models.Footnote 22
Ample evidence exists that during the eighteenth century, the Husaynid beys espoused the precept of maslaḥa firmly rooted in the Turco-Ottoman mode of governance along the lines described above by Naff.Footnote 23 A case in point is the action of Ali Bey IV (1759–82), the third ruler of the Husaynid dynasty, who resorted to this practice to implement repressive fiscal policies that his own ministers and advisors from the Majlis al-Sharʿī decried as illegitimate and against the sharia.Footnote 24 In his biography of Ali Bey IV, Hammuda b. Abdul Aziz, who served as the bey's katib (secretary), reported that this bey, amidst mounting economic crisis, was forced by the ulama to abolish taxes and levies, which they condemned as breaching the sharia. To make up for the loss of revenue, he proposed to enforce the collection of ushr (a 10% tax) rigorously and to annul the exemption enjoyed by several privilege groups. In pursuing this policy, Ali Bey IV was warned by his advisors in his Diwan and the Majlis al-Sharʿī that, if implemented, these measures could lead to a widespread rebellion of the tribes against any future taxation.Footnote 25 Undeterred, the bey “puts forward an argument based also upon the sharia to justify this violation,” arguing forcefully that “the sharia recognizes the right of rulers to breach its provision when overriding consideration of public interest mak[ing] this [his decision] imperative.”Footnote 26
As the above back and forth between Ali Bey, his Diwan and the Majlis demonstrates, when it comes to implementing decisions of consequential significance to the Beylic, and as Ahmad Bey's argument favoring abolition attests, the choice was clear; the end justifies the means. In the following section, I outline how Ahmad Bey espoused the precept of maslaḥa to justify the 1846 abolition decree.
The Abolition Argument before the Majlis
On January 26, 1846, three days after Ahmad Bey proclaimed slavery abolished, he instructed Ahmad Ibn Abī Diyāf, his private secretary, to issue an Istiftāʾ (petition) seeking a legal opinion from the Majlis al-Sharʿī. The Majlis on the eve of abolition comprised (1) two Chief Muftis; one Hanafi and one Maliki, (2) seven qādis of the Majlis al-Sharʿī; comprising two Hanafis and five Malikite, and (3) the Qadi of the Bardo Palace representing the Beylic. See appendices 1–3 outlining Ahmad Bey's abolition decree and his Istiftāʾ justifying abolition before the Majlis al-Sharʿī.
The purpose of Ahmad Bey's Istiftāʾ to the Majlis may be said to be twofold: first, to justify the outright abolition of slavery, and secondly, to confer religious legitimacy on abolition through fatwas from the Majlis. Footnote 27 In its religious character, the bey's petition may be said plausibly to conform to the notion of Istiftāʾ; that is, a request for a legal opinion from a qadi, which Stephen Humphrey defined as a petition coming from “an ordinary Muslim with a question about some ritual observance, a qadi seeking guidance in a difficult piece of litigation, or a ruler wishing to establish the lawfulness of an act of state.”Footnote 28 When viewed within the broader abolition process, however, the Istiftāʾ which I will hereafter refer to as Istiftāʾ does not completely lend itself to the above sense of a petition.
Once the nature of the decree as an Istiftāʾ is established, we can examine it in the context of the historical and political developments that shaped Ahmad Bey's anti-slavery program. I first consider the Istiftāʾ's principal arguments and methods of application, and then I place it within this broader context and Ahmad Bey's chosen strategy to invoke the precept of maslaḥa in favor of abolition.
First, one of the principal arguments Ahmad Bey employed in the Istiftāʾ to justify emancipation stemmed from the “inhumane treatment” of slaves. The prevailing conduct toward the enslaved, the bey argued, carried undesirable implications, particularly the treatment of enslaved Blacks, who were “oppressed.” Based on Maliki legal precepts, the bey further observed that this pattern of inhumane conduct, which prevailed in the Beylic, was not congruent with the Sharia enjoining Muslims to treat those under their care with kindness. Under these circumstances, he maintained that the Sharia even enjoined the ulama to compel slave masters to free their ill-treated slaves.Footnote 29 And since slave masters no longer complied with this basic religious principle, it was, therefore, a duty of the authorities to protect those “oppressed” individuals.Footnote 30
The second argument in the bey's Istiftā to justify the emancipation decree raised a key legal question that was so convincing that it was difficult even for members of the Majlis (The Sharia Council) to refute. Here, without alluding to any specific precedent, the bey cited a classic legal principle concerning the illegal enslavement of Muslims. According to this principle, the enslavement of a Muslim by a fellow Muslim was strictly prohibited. In line with this legal precept, he noted that besides the “inhumane treatment of slaves” prevailing in Tunisia, “the state of slavery into which the Black race has befallen” was also contradictory to the basic principles of the Sharia.Footnote 31 To illustrate this line of argument, he observed that, first; most Black slaves brought from the bilād al-Sūdān (land of the Blacks) were drawn from such places where Islam had long been established. How then could a Muslim enslave his fellow brethren, which was strictly prohibited?Footnote 32 It is clear, then, that the bey considered the enslavement of these Sudanic Africans from the bilād al-Sūdān to be in a stark contradiction with the original precondition for legitimate enslavement, which was a condition of unbelief.
Still, the bey took matters even further. To argue in favor of abolition, he employed the puzzling Sharia principle of tashawwuf.Footnote 33 That is, in addition to the Sharia enjoining the ulama to manumit ill-treated slaves without recourse to the slave masters, this principle encouraged Muslims to be mindful of the lawgiver's aspiration to liberty (al-tashawwuf al-Shari` illā al-hurriat). Aspiration to liberty was evident through the multiple avenues of manumission indicated by the lawgiver, and manumission's inclusion in zakat (alms-giving).Footnote 34 This being so, the bey, consequently, observed that on the basis of this principle, the lawgiver favors liberty.
Ultimately, he invoked the flexible canonical precept of maslaḥa, whose two most important elements are that of the welfare of the community and of the “public good.” However—unlike the previous theoretical questions over the legality of enslavement of the black slaves—the invocation of the principle of maslaḥa was fraught with practical concerns. At the core of these concerns lay the undesirable political implications resulting from the enslaved Blacks’ frequent flights to foreign consulates, thereby, endangering the Beylic's “public good.” Since the enslaved's frequent flights to foreign consulates compromised the Beylic's public and political interests (al-maslaḥa al-siyāsiyya), the bey declared it incumbent upon the Beylic authorities to prevent such political damage. The logic of the invocation of the precept of maslaḥa follows that because these slaves’ flights had undesirable implications for the general welfare of the Beylic, it was, therefore, in the political interest of the state authorities to prevent the enslaved from seeking the protection of foreign authorities, especially when these authorities were not their co-religionists.
Beyond the vigorous, sustained arguments put before the Sharia Council to justify abolition (orders for ‘itq al-Jabrī), compulsory emancipation was also presented to the Majlis. The Majlis was apprised of the bey's designation of legal notaries in three zawiyas: namely the zawiya of Sidi Mehrez, Sidi Mansour, and Zawiya el-Boukria to oversee the compulsory and mass manumission of slaves.Footnote 35 Similar to orders issued to provincial governors, members of the Majlis were urged to employ their spiritual and moral authority to expedite the execution of the mass manumission process. However, unlike a petition in the ordinary sense, the Istiftāʾ's plea to the Majlis came with a strong admonition. The bey instructed the Majlis members “not to allow a slave-owner of any kind to prevent a slave—who might recourse to their good offices—from attaining his or her liberty.” Wa hazārī (And beware!), in this age (fī hāzā al-‘asr), the bey went on to add, “We [Ahmad Bey] will not come down in favor of litigation of this kind.”
Having laid out its principal arguments and having urged the council to facilitate the execution of the mass manumission process, the bey's next step was even more startling. The bey did not leave the decision to the discretion of the Majlis, which would have been done in the case of an ordinary Istiftāʾ.Footnote 36 Nor did he wait until the Majlis pondered the legal consequences arising from his principal arguments contained in the Istiftāʾ. Instead, the bey declared that it was justifiable to prevent the illegal ownership of others given the:
1. obvious contradictions between the pattern of slave holding and the basic religious precepts concerning the inhumane conduct toward the Black slaves;
2. the uncertainty of the status of these slaves;
3. and the risk of political damage caused by these unhappy slaves’ frequent flight to foreign consulates, which was clearly not in the public interest of the Beylic.Footnote 37 Consequently, the bey ruled that because “the basic principle for all children of Adam is freedom,” it was also befitting especially “in cases where a person's status was not clearly established, [to give preference] to the presumption of liberty over that of an unfree status.”Footnote 38
The Abolition Arguments in Context
Ahmad Bey's Istiftāʾ was far from being a lofty or idealized religious text simply put before the Majlis to confer religious legitimacy on the mass emancipation and the final abolition. Similar to the preliminary processes of the abolition of slavery that began in 1841 and continued until the eve of the final abolition of slavery in 1846, the Istiftāʾ was colored by the broader historical and political processes that shaped the Regency's future in a hostile Mediterranean world dominated by a Franco-Ottoman rivalry.
Consuls and Runaways Slaves versus al-Maslaḥa al-Siyasiyya “Public Good”
Up until the enactment of Ahmad Bey's Anti-Slavery Program that began in 1841, rules concerning emancipation were generally spelled out according to Islamic law and occasionally respected. Slaves could obtain their freedom in several ways. First of all, they could buy their freedom by means of mukatabah (a contract), which entailed their working until they paid their masters the agreed upon price in labor. Secondly, any female slave who gave birth to a child from her master immediately gained freedom for her child. As an umm al-walad (mother of the child), she would eventually receive the same dispensation upon the death of the master. Furthermore, upon the death of a master, it was common for his will to include freedom for some or all of his slaves as an act of good for the grace of God. Freeing a slave was also a means of expiating a sin or performing a religious duty.
Islamic law also regulated the ill-treatment of slaves. According to Maliki jurisprudence, the Muslim clergy or ulama (traditionally acting as the moral conscience of Muslim societies), for instance, had the legal right to free slaves, especially in cases where slaves were mistreated. Therefore, the enslaved could complain to the ulama, and if the complaint was well-founded, the ulama would often manumit the slave without recourse to his or her master. Ibn Abī Diyaf, for example, reported that one of the Tunisian ulama, Shaykh Hasan al-Sharīf, was approached by a female slave who alleged she had been mistreated. She pleaded with the Shaykh to intercede with her master so he might agree to resell her. Shaykh Hasan insisted on being taken at once to the slave's master's house in Bab el-Suwaiqa. The slave master became nervous upon seeing the Shaykh at his doorstep. Ibn Abī Diyaf said that the man not only took fright and cried out, “Oh Sīdī, if only you had sent for me I would have come to you,” but he also immediately freed the enslaved female.Footnote 39
In addition, zawiya (a Sufi convent) traditionally provided a great deal of room for the protection of slaves from abusive owners. Mohammed Ennaji attests to the importance of zawiya as a site of freedom for freed slaves in Morocco and North Africa. As a symbol of religious sanctuary, slaves who sought a refuge in it could not be forcibly removed from it.Footnote 40 The same is true of any free person.
It is clear from the Tunisian state's administrative apparatus that local authorities instituted mechanisms to control the abuse and flights of enslaved persons. The institution of Bash Agha is illustrative of enforcement mechanisms put in place by the Husaynid beys to regulate the ill-treatment of slaves. This institution, attached to the court of the Husaynid ruling beys, can be traced back to the early phase of the Husaynid dynasty founded in 1705. It was established for the sole purpose of protecting runaway slaves but was later used during the second half of the nineteenth century in levying a head tax on slaves. Accordingly, slaves faced with mistreatment could complain to the office of the Bash Agha. Designated as “chief eunuchs and chief judges over the enslaved population,” the Bash Aghas themselves were derived mostly from the enslaved population and had to speak the various languages of the population they represented. They played the role of intermediary between the enslaved Blacks and their owners. Frank, a French writer who was also a medical aide to Hammuda Pasha, for instance, wrote that if a slave found a means of taking refuge with the Bash Agha, the owner could not repossess that slave without paying six piastres (about four dollars) to the Bash Agha's office, which mediated the disagreement between the slave and the master.
Despite these established traditions protecting slaves against abuse, throughout the course of the abolition of the slave trade and slavery, runaway slaves sought refuge with foreign authorities. Between April 1841 and January 1846, most of the known runaway slave cases took place in the British consulates. Visiting Tunis in December 1845, James Richardson estimated the number of runaway slaves liberated by the British consulate alone had exceeded 1,000 in that year. He stated that the liberation of these slaves was a “difficult” issue.Footnote 41 This difficulty in the slaves’ liberation had direct and indirect political implications on the Beylic's political autonomy.
Now, I want to use these runaway slaves’ cases to highlight the predicaments they posed for Tunisian authorities, particularly in the face of adverse political developments affecting Tunisia's quasi-autonomous status in a rapidly changing Mediterranean world. These slave flights had, alternatively, indirect or direct political implications for the Regency's political interest.
Runaway Slaves’ Cases without Significant Political Implications
Runaway slaves’ cases without direct political implications involved contentious litigations such as disputes involving foreign slave masters whose slaves escaped to European consulates. For example, in November 1843, a case relating to foreign slave owners’ violations of the slave trade involved a boy, about nine years of age, who ran away from his master on account of extreme abuse and took refuge in the British Consulate. To put an end to the poor boy's abuse, Sir Thomas Reade (British Consul General in Tunis) decided to purchase and free the boy at his own expense from his master. But Reade was careful not to override the local custom, so he interceded with Ahmad Bey to negotiate the boy's purchase and liberty. Ahmad approved Reade's request. Yet, since the owner of the boy—Hage Ahmed Ben el-Hage Mohammed bin Menad, an Algerian citizen—claimed that owning slaves was consistent with French law, Reade thought it necessary that the purchase should be officially made through the Chancery Office of the French Consulate in Tunis. This was subsequently done.
Four days following the purchase, Bin Menadi again claimed that, as an Algerian citizen, the laws governing slavery in the Regency did not bind nor apply to him. And he tried vainly to reclaim the boy. In fact, contrary to precedents of instantaneous liberation of abused slaves set in previous cases, both Ahmad Bey and Sir Thomas Reade were unwillingly obliged to concede to Ben Menadi's claims that slavery was permissible in Algeria. While Ahmad, perhaps, preferred not to meddle with French policies in Algiers, Reade attributed the predicament brought about by Bin Menadi's case to France's recognition of slavery in Algeria which was not abolished until 1848.
Runaway Cases with Significant Political Implications
Now let us look at a case of jurisdictional disputes that had a direct political effect on the Regency's autonomy. One example of this type of dispute occurred between Ahmad Bey and Austrian consul in Tunis. In November 1842, a female slave sought the protection of the Austrian consulate on account of ill-treatment. The Austrian consul, instead of following the usual procedures and informing the Beylic's authorities of the incident, provoked a jurisdictional crisis by demanding to meet directly with the master of the runaway slave. The master refused the consul's demand. The consul then turned to the Beylic's authorities, but insisted upon directly intervening between the slave and her master.
Within a day of the incident, Ahmad Bey wrote to the consul admonishing his conduct. In his dispatch to the consul, the bey cautioned that inasmuch as the enslaved female was in the consular premises, especially being a female without a legal guardian (mahram), it was inappropriate, according to local custom, to keep her in the consulate. Therefore, as in all cases involving ill-treated slaves, the bey instructed the consul to bring the slave to the Bash Agha's residence (the main site for settling disputes between runaway slaves and their masters).Footnote 42
The consul objected, insisting he meet directly with the master of the slave. Seeing the apparent motives behind the consul's unusual request, Ahmad Bey viewed the consul's attitude as an insult to the Beylic's jurisdiction. In a dispatch sent to the consul on November 28, the bey vowed not to accede to the consul's demands. Besides, the bey cautioned him, “By what right do you demand the master of the said slave to appear before you or dare to address him directly under this circumstance? He [master of the slave] is our subject (ra'iyanā) and we [alone] are in charge of this country and reserve the right to find solution to this matter.”Footnote 43
The main cause of the above lingering jurisdictional dispute, exemplified by this case, is not difficult to establish. Until the reign of Ahmad Bey, Tunis had been a tranquil vassal state of the Ottoman Empire. As a vassal entity, it did not have the full diplomatic recognition of a state, although it had been treated as such by European states.Footnote 44 According to the Ottoman Empire's capitulation system granting trade and consular representative rights to European states, Austria—by the treaties of September 23, 1723 and December 23, 1748—was authorized to establish a consulate in the Regency.Footnote 45 However, this did not happen until the early 1840s. According to these ancient treaties, it was stipulated that consuls appointed by Austria to the Regency should acknowledge the rulers of Tunis as subjects of the Sublime Porte, tributaries to the Porte; they ought not to treat Tunis as a sovereign state. After the 1830s, however, Austria was disadvantaged by the changed political and economic developments resulting from Great Britain and France's influence in the Regency.
On the Tunisian Bey's part, the French occupation of Algiers that began in the 1830s was enough to admonish the Tunisian authorities of what could happen if the beys miscalculated their move. Algiers and Constantine to the west were under direct French control after a protracted and brutal war that had started in 1830, and Tripoli, once a semi-autonomous state like Tunis, had direct Turkish rule imposed on it after the Turkish ousted the local Karamanly dynasty in response to France's advances in North Africa. Throughout the 1840s, the Regency's de facto autonomy diminished substantially due to the French occupation of Algiers—with Great Britain favoring maintenance of the status quo in Tunis. Austria, however, was not among the powers whose influence shaped events in North Africa. By the beginning of the 1840s, Austria appointed her first consul to Tunis hoping to exert the same influence as Britain and France. The consul appointed by Austria, aware that he, too, could exact concessions from the Bey used the runaway female slave to the Austrian consulate to pressure the Beylic authorities. But he did not succeed.
The firmness with which the bey reacted to Austrian consular pressures attests to the sensitivity of these issues for Tunis. Any foreign interference in home government was regarded with suspicion at a time when European and Ottoman imperialism were threatening the bey's power. The Austrian consul's attempt to intervene directly in the liberation of a woman enslaved to a Tunisian master prompted the bey's assertion of his authority on these matters. This shows, too, that autonomous management of legal cases involving slave emancipation, and ultimately of the legal framework of abolition, stood for national autonomy. Thus, more than the lofty al-Sharīʿa principles outlined in his abolition decree and reiterated in his Istiftāʾ before the Majlis, the bey saw the abolition in Tunisia as a means to prevent foreign powers from arrogating to themselves the right to interfere with the country's laws—or even impose their own laws, as had happened in Algiers and Tripoli.
Conclusion
In the face of the above surge of abolitionist consciousness among the enslaved Black Africans, the key arguments Ahmad Bey employed to justify their mass emancipation in 1846 reveal his pragmatic approach to abolition. As the analysis of the Istiftāʾ put before the Majlis illustrates, the bey's overall argument for their emancipation en mass reflected his concerns with safeguarding the political interests of the Beylic. As shown in the study, his approach to the abolition of slavery has its precedent in what Thomas Naff terms the Turco-Ottoman tradition of Islamic legal procedure. At its core, was the belief in the “primacy of the state” firmly rooted in the fiscal policies of the Husaynid beys.Footnote 46 Indeed, similar to their counterparts in the late eighteenth- and nineteenth-century rulers of the Ottoman Empire, when experiencing a conflict to implement fiscal or political reforms, the Tunisian beys invoked the principle of the pubic good (al-maslaḥa al-siyāsiyya) in their official appeals to the ulama. As the Franco-Ottoman imperial rivalry culminated into the French occupation of Algiers in 1830, the endangerment of the public good, and indeed the very existence of the Beylic as a (semi-)autonomous political entity, was at stake. Thus, the Husaynid beys, particularly Ahmad Bey had long understood this encroaching reality. Following the Congress of Vienna in 1815, legal control over slavery and its abolition around the western and the eastern Mediterranean rims became the central issue that would determine which polities would continue to manage their own affairs, and which ones would succumb to foreign impositions. Within this context, Ahmad Bey understood the implications of this changed status quo and used it to his advantage making Tunisia the first in the Muslim World to abolish the longstanding institution of slavery in the Islamic World during the modern period.
Acknowledgements
Research for this article has received funding from the European Research Council (ERC) under the European Union's Horizon 2020 research and innovation program through participation in the African Abolitionism Project (AFRAB), grant agreement No. 885418.
Appendix 1: Original Arabic Text
Ahmad Bey Istiftāʾ to Mohamed Bayram, Bash Mufti of the Hanafi Madhhab (Rite), Ibrāhīm al-Riyāhī, Bash (Chief) Mufti of Maliki Madhhab (Rite), and members of Majlis al-Sharʿī (The Religious Council for Judicial Ordinance) justifying the abolition of slavery in Tunisia.
The original handwritten Arabic version of Ahmad Bey's Istiftāʾ to Mohamed Bayram. Source: National Archives of Tunisia, A.G.T Série Historiques, “Dossier 421 Carton 230, Ahmad Bey to the Majlis al-Sharʿī, [The Sharia Council for Judicial Ordinance], (Doc. 16a), Muḥarram 1262H/January 26, 1846.” Photograph by author and permission to reproduce this image for publication obtained from the Tunisian National Archives.
Source: A.G.T Série Historiques, “Dossier 421 Carton 230, Ahmad Bey to the Majlis al-Sharʿī, [The Sharia Council for Judicial Ordinance], (Doc. 16a), Muḥarram 1262H/January 26, 1846.”
Appendix 2: Translation of Ahmad Bey's Istiftāʾ Footnote 47
In this year 1262/1846, he [Ahmad Bey] banned slavery and ordered me to write the following to Majlis al-al-Sharʿī (The Sharīʿa Council for Judicial Ordinance). Ibn Abī Diyaf.
It has been established by us without any doubt that the majority of the people of our province in this age are not good owners of those black slaves who have no power of their own, a quality inherent in their being owned according to the scholars, since the modality of it has been established. The morning of faith dawned in their land long ago, and how can anyone own his brother in the lawful manner which the Lord of the Messengers recommended at the end of his time in this world and the beginning of his afterlife. Indeed, it is one of the principles of his path of law (sharia) that one should seek out freedom and in cases of ill-treatment the slave should be liberated without the sanction of his owner. This being so, our investigation forced us, out of compassion for those who are underdogs in their worldly life, and for their owners in their afterlife, to forbid people from engaging in this lawful but disputed practice-this being the case-for fear they commit something which is ascertained and agree by consensus to be forbidden, i.e. harming their brother who Gog placed under their control.
In so doing there are, in our view, political benefits, including the fact that slaves do not seek refuge under the protection of officials who are not of our [Muslim] community. Thus, we have appointed judicial officers at the zawiya of Sidi Mahraz, the Bakri Zawiya, and the zawiya of Sidi Mansur who will draw up an official document of freedom, without regard to the owner, for everyone who comes seeking refuge, and this document will be brought to us for signature. And-may God preserve you-that if any slave fleeing his owner comes to, direct the slave to us. Woe betides a slave owner who seizes such a slave, since your protection gives shelter to him who seeks it in order to free himself from an ownership which is most probably unlawful, and whose claimant thereto we shall not rule in favor in this day and age. Avoiding something that is permitted for fear of committing something that is forbidden is [an act of] sharia, especially if there is conjoined to it a matter that advantage decree, in which cases people must be made to carry it out. God guides to that which is most fitting and gives the believers who performed acts of piety the good news that they shall have a great reward. Peace.
Written on 28 Muharram the Holy, the opening month of 1662 (Monday January 26, 1846).
Source: A.G.T Série Historiques, “Dossier 421 Carton 230, Ahmad Bey to the Majlis al-Sharʿī, [The Sharia Council for Judicial Ordinance], (Doc. 16a), Muḥarram 1262H/January 26, 1846”; Aḥmad Ibn Abī Diyaf, Itḥāf ahl al-Zamān bi Akhbār mulūk Tūnis wa ʿahdi al-Amān, 7 vols, Tunis: al-Dār al-ʿArabiyya lil-Kitāb, Vol. 4, 1999, pp. 98–99.
Appendix 3: The Final Abolition of Slavery Decree, 1846
From the Bey of Tunis to Sir Thomas Reade (original translation from Arabic)
25 Moharram al-Karim/1262, (January 22, 1846.)
From the servant of God, the Mushir Ahmed Bey, Prince of the Tunisian Dominions.
To our ally Sir Thomas Reade, Consul General for the British Government at Tunis.
Whereas, our aversion of the thraldom imposed on the Human kind, which debases it to the condition of the brute creation is well known to you, having conversed together on this matter.
Our attention has been directed to the suppression of this traffic, as well as to its total abolition with a due regard however to the interests of our subjects, so as not to cause them a loss of property.
We commenced first by prohibiting their embarkation for countries as objects of commerce, as we wrote to you on the 9th Rabih 1st 1257.
Subsequently to which we sent orders to the places situated on the road of the caravans carrying from Godemes (Ghadames) not to permit any person to enter our territory with any slave as an article of sale; and should any refuse to do so, and not return, the slave should be liberated to his loss, conformably to what we informed you on the 17th Rabih 1258.
We afterwards abolished the Market established for their sale in our capital (thus giving up the revenue which our Government reaped from it), declared all slaves that should enter our Kingdom by land or by sea, should be free, and further ordered that everyone born a slave on our Dominions should be considered as free, from the very instant of its birth; and that he could neither be sold or brought as we informed you thereof on the 6th Dhul ka`da 1258.
Our resolution was likewise strengthened and we felt a real satisfaction all the accord which existed between our sentiments and those expressed by the Anti-Slavery Society which ennobles itself by upholding the dignity of mankind, in the letter which we answered on Rabih 1st 1258.
This affair never ceased to be the object of our attention as well as the central point of our consideration, and we have thought proper to publish that we have abolished slavery in all our Dominions; for we consider all slaves existing in our territory as being free, and no not recognize the legality of their being kept as a property.
We have sent some notaries to the Sanctuary of Sidy Mahrez in town and to the sanctuary of zawiya al-boukria in the suburb of Bab al-Suwaika, as well as in that of Sidy Monsour in the suburb of Bab al-Djezirah, with the object of writing in favor of each of such slaves as should present themselves to them, a document constituting them free on our part, and which (document) shall be presented to us for the apposition of the seal, and no right of property on their persons shall be alleged by their masters.
We have likewise sent the necessary orders to all the governors in Our Tunisian Kingdom, and having determined on writing a circular to all the consuls of friendly Governments in our capital you shall equally with them receive a copy of such circular. We hastened to forward to you this letter, for you to know our sentiments and what we spoke together on the subject.
We thank providence for the aid it has afforded us in putting an end to this business, which we know is also an object of attention to the Great and illustrious British Government; and we pray the most High that our opinions be always in unison with their own in every point.
May the Lord keep you in his safeguard! 25th Muharram al-Karim 1262.
(January 22, 1846).
Source: Ahmed Bey to Sir Thomas Reade, enclosure to dispatch reporting the total abolition of Slavery in Tunisian Dominions, FO 84/648, NA, Kew.
