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

cases between its own nationals or protégés; if foreign subjects or protégés of two nations were
concerned, the jurisdiction of the trial was determined by the status of the defendant (actor forum
sequitur rei). 31 While at times consuls cited law codes and regulations in their rulings, they more
commonly ruled without invoking any specific laws. 32 Consuls even incorporated local law
(Islamic, Jewish, or customary) into their rulings. 33 The first consular law code specifically
designed for Morocco was promulgated by Great Britain in 1889. 34 However, even in British
consular courts after 1889, it is not entirely clear to what extent consul-judges followed the letter
of the law.
The first capitulation treaty between Morocco and a European state was signed with
France in 1767. This treaty specified that cases involving a French subject (or protégé) and a
Moroccan subject fell under Moroccan jurisdiction—a clause which other nations subsequently
emulated in their treaties with Morocco. 35 Although the treaties required that the consul be
present at the trial, all cases involving Moroccans were supposed to be judged by the “Moroccan
authorities” (as they were usually referred to)—meaning either a Makhzan official, a qāḍī, or, for
some cases involving Jews, a beit din. 36 The French treaty of 1767 included an exception to this
see also Will Hanley, “Foreignness and Localness in Alexandria, 1880-1914” (Ph.D. Dissertation, Princeton
University, 2007), 178-9.
31
Clercq and Vallat, Guide pratique des consulats, v. 1, 535.
32
See, e.g., MAE Nantes, Tanger F 2, Moses Israel v. Ducors, 19 May 1893. French consular courts in Alexandria
during the late nineteenth and early twentieth centuries were more consistent about citing law codes (Hanley,
“Foreignness and Localness in Alexandria, 1880-1914,” 179).
33
This will be explored further throughout the chapter. See also Antoine Acquaviva, La condition civile des
étrangers au Maroc (Montpellier: Imprimerie Mari-Lavit, 1936), 38.
34
The Morocco Order in Council (Lourde, “Les juridictions consulaires,” 24). A similar code for the Ottoman
Empire was first promulgated in 1844 (called The Ottoman Order in Council), and then revised in 1873, 1899, and
1910: see Hanley, “Foreignness and Localness in Alexandria, 1880-1914,” 180-1.
35
Kenbib, Les protégés, 38: Lourde, “Les juridictions consulaires,” 16-18.
36
To the best of my knowledge, the fact that Jews could be sent to a beit din was not mentioned explicitly in any of
the treaties. However, as will be discussed below, Jewish courts continued to have some jurisdiction over cases
involving foreigners. See especially FO, 631/3, Carstensen to Hay, 21 November 1866 (in which a British subject
sued Rabbi Yaḥya Ben Sassi and his brother Aharon in the beit din of Mogador, and then appealed the decision to
the beit din of Tangier): FO, 631/5, Beaumier to White, 10 September 1874 (in which the local Makhzan authorities
sent a case concerning a Muslim woman who had pressed charges against Ḥaim Assor, a British subject, to the beit
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