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

not qualify for the ḥadd punishment, and were treated like torts requiring the return of the stolen
object or the payment of an indemnity. Although there is some evidence that the ḥadd
punishment was applied in Morocco in the nineteenth century, it is never mentioned in the
Ministry of Complaints records. 33 It seems that most cases of theft were considered torts, and
their remedy was to return the property or its value to the victim. 34 Moreover, because theft was
treated as a tort, there was no difference in the way Muslims and non-Muslims were
compensated.
It is important to note that unlike debt cases, about which Jews complained much more
often than Muslims because Jews were overrepresented as moneylenders, Jews and Muslims
appear in the registers as victims of theft with similar regularity. Although I did not
systematically examine entries concerning Muslims, even a cursory investigation shows that
they, too, were victims of theft. 35 Nor is there evidence that Jews were consistently singled out
to be stolen from; rather, it seems that thieves preyed on people traveling in isolated areas no
must be surreptitious and taken from a place which is locked or guarded; the goods taken must be moveable property
worth more than a minimum value (defined as 8.91 grams of silver or 1.06 grams of gold by Mālikīs); and the victim
of theft must be the full owner of the stolen goods. In Santillana’s discussion of theft in Mālikī law, he simply
describes theft as a tort requiring the return of the stolen object or its value (Santillana, Istituzioni di diritto
musulmano malichita, v. 2, 454-5).
33
See, for instance, DAR, Safi, 4769, Mawlāy Sulaymān to ‘Abd al-Khāliq b. Ibrāhīm, 12 Dhū al-Qa‘da 1224.
34
See, for instance, the notarized document attesting to the payment of an indemnity for theft: “Muḥammad, called
al-Aḥal, b. Ḥamūda b. al-Bashīr b. Zarūq al-Ya‘qūbī, who lives in Bū Mu‘āwiya, testifies that he received from
Muḥammad Fatḥan b. al-Mutawakkil b. al-Khaḍīr, his relative, all that he (Muḥammad Fatḥan) had paid to his
fellow tribesmen [literally, brothers], the Bū Mu‘āwiya, from his personal wealth (mālihi al-khāṣṣ) for the female
camel (farṣā’) which his aforementioned brothers stole from the children of Muḥammad b. Muḥammad, [which was
worth] 50 French riyāls. And he [Muḥammad] released him [Muḥammad Fatḥan], and there will be no investigation
afterwards (lā ta‘aqqub ba‘dahā),” (TC, File #4, Rajab 1274). The entries in the Ministry of Complaints registers
rarely specify whether the victim of theft was to receive the goods or an indemnity. In one instance the Makhzan
official reported having returned the stolen goods to the Jewish victim (BH, K 181, p. 340, 23 Rajab 1310). In
another instance from a few years earlier the sultan specified that the Jew should receive the equivalent of his stolen
goods (rather than the goods themselves): DAR, Fez, ‘Abdallāh b. Aḥmad to Mawlāy Ḥasan, 29 Rabī‘ I 1301. For a
similar settlement, see also FO, 631/3, Elton to Hay, 10 October 1864.
35
In order to give a sense of the frequency of theft cases involving Muslims, I looked through a random sample of
entries from Ramaḍān 1306 to Muḥarram 1307 and found a number of instances in which Muslims were victims of
theft: BH, K 157, p. 31, 14 Ramaḍān 1306; p. 31, 17 Ramaḍān 1306 (two separate entries on this page); p. 35, 22
Ramaḍān 1306; p. 39, 30 Ramaḍān 1306; p. 40, 5 Shawwāl 1306; p. 40, 7 Shawwāl 1306; p. 85, 20 Muḥarram
1307.
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