IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...

law, even if they did not consistently adhere to them. 32 Undoubtedly Makhzan officials did not
think of themselves as arbitrarily perpetrating injustice, but rather saw their rulings as within the
parameters of sharī‘a, custom, and the sultan’s authority.
Beyond their role as judges in extra-sharī‘a courts, administrative officials were also
involved in the judicial system in their capacity as enforcers of qāḍīs’ decisions. Ottoman
historians have noted that kadıs normally engaged local officials to carry out any orders other
than the very basic function of arresting suspects, which a muhzir (Arabic, muḥḍir or bailiff) who
worked for the kadı would take care of. 33 It seems that this arrangement generally held in
Morocco as well, where Makhzan officials were responsible for carrying out the punishments
imposed by the qāḍī. It was the governor who would imprison, bastinado, or fine those accused
of crimes, as well as imprison debtors who had defaulted on their debts. 34 As for the types of
punishments used, the Ministry of Complaints records tell us much about the use of
imprisonment, both as a punishment and as a way to convince the guilty to fulfill their
32
For instance, in one case from 1830, a Makhzan official judging a case (concerning the claim of Moshe
Benchimol that he was struck by a Muslim muleteer) refused to hear the testimony of Jewish witnesses on the
grounds that oral testimony by non-Muslims was inadmissible according to the sharī‘a. I have discussed the fact
that oral testimony was rarely heard in sharī‘a courts, which relied on notarized documents instead—making the
testimony of non-Muslims acceptable as long as it was recorded by ‘udūl (see Chapter Two). Nonetheless, the
Makhzan official in this case seems to have stuck to the letter of Islamic law prohibiting testimony by non-Muslims.
However, my suspicion is that this appeal to Islamic law was largely a ruse to avoid ruling in favor of the Jewish
plaintiff, and was not necessarily representative of procedure in Makhzan courts.
33
Jennings, “Kadi, Court, and Legal Procedure,” 158; Hickok, “Homicide in Ottoman Bosnia,” 45. Hickok writes
that the legal codes technically made the kadı responsible for enforcement, though if force was required the kadı
either engaged a member of the governor’s administration or turned the matter over to the governor himself.
Jennings also notes that the state was involved in the investigations of crimes even when these were being judged by
the kadı (Jennings, “Kadi, Court, and Legal Procedure,” 159). James Baldwin argues that this may have been one of
the reasons that individuals chose to adjudicate in the pasha’s diwān rather than the sharī‘a court: Baldwin, “Islamic
Law in an Ottoman context,” 46.
34
Péretié, “L’organisation judiciaire au Maroc,” 516, 525. Evidence from the Makhzan archives likewise suggests
that Makhzan officials were responsible for executing the qāḍīs’ rulings: see, for instance, DAR, Safi, 4718, al-
Ṭayyib b. Hīma to Muḥammad Bargāsh, 25 Rabī‘ I 1280. This letter is about the famous case in which four Jews
were accused of poisoning a Spanish customs official in Safi (discussed in Chapter Nine). According to Ibn Hīma,
the sultan had ordered a qāḍī to try the murder suspects. Once the qāḍī ruled that the suspects’ testimony was valid
(they pleaded guilty), the sultan ordered that one of the suspects (who was an Ottoman subject) be sent to the qā’id
of Tangier to be executed. This arrangement also seems to have applied to batei din, which sometimes asked the
nagid to enforce a punishment they had decreed (Deshen, The Mellah Society, 55).
159