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

ule, specifying that any case involving a French subject or protégé could only be tried by a
Makhzan official and not by a qāḍī in order to avoid the perceived bias of sharī‘a courts. 37
However, this rule, too, was often observed only in the breach. Various French consular officials
wrote to the Ministry of Foreign Affairs in Paris complaining that French subjects were being
sent to sharī‘a courts against the stipulations of the treaties. 38
In 1799 Spain modified the status quo established by the French treaty of 1767 by
specifying that any case in which a Spanish subject was the defendant would be tried in a
Spanish consular court. 39 However, this innovation was limited to Spain; other nations
continued to follow the rule that foreign subjects and protégés would be subject to Moroccan
jurisdiction if the case involved a Moroccan subject.
The 1856 treaty with Great Britain marked a watershed in Morocco’s relations with
foreign powers. Most importantly, by expanding the scope of free trade in Morocco this treaty
ushered in an era of even greater European influence. 40 It also further enlarged the jurisdiction
din): and MAE Nantes, Tanger A 162, Botbol to Féraud, 3 September 1885 (in which Botbol, a French protégé,
declared himself willing to be judged by a beit din). See also Lourde, “Les juridictions consulaires,” 39, although
Lourde does not specify whether the jurisdiction of batei din was outlined in treaties or simply enforced without
being specifically required.
37 Ibid., 17. Interestingly, both the British treaty of 1856 and the Spanish treaty of 1861 specified that British and
Spanish subjects could be judged in a qāḍī court (see Mūdirīyat al-Wathā’iq al-Mālikīya, Al-Wathā’iq, v. 4, 148-9,
77-8). However, both British and Spanish consular officials seem to have thought that their treaties explicitly
excluded the qāḍī from jurisdiction over commercial matters. See, e.g., AGA, M 9, 81/9, “Estado de los créditos
consignados en documentos pura y esencialmente comerciales, que, según el texto español del parrafo 2do del
Articulo 11 del Tratado de Comercio, no pertenecen a la jurisdicción del Kadi (Shra),” no date (from 1874-5); FO,
631/3, p. 125b-126a, Carstensen to Hay, 8 June 1868 (in which Carstensen asked Hay to remind Muḥammad
Bargāsh that purely commercial matters were not to be sent to the qāḍī).
38 MAE Courneuve, C.P. Maroc 37, Tissot to de Rémusat, 1 June 1871, 13 July 1871, and 12 August 1871; MAE
Nantes, Tanger A 157, Tissot to Decazes, 11 September 1873. See also MAE Courneuve, C.P. Maroc 53, Féraud to
Florens, 9 June 1887 (in which Féraud explained the need to set up “mixed” courts to rule on commercial matters
since the qāḍīs were not qualified to do so). We also find complaints against such infractions from a British consul,
despite the fact that the British treaty gave qāḍīs jurisdiction over British subjects and protégés in some cases: the
qāḍī of Essaouira, about whom Carstensen had complained frequently during the years 1865-70, was eventually
replaced by one whom Carstensen dubbed “impartial in his judgment of Christians, Moors, and Jews….” (FO,
631/5, p. 64a-65a, Carstensen to Hay, 13 March 1873). Unsurprisingly, Carstensen did not complain about British
subjects having to appear before the new qāḍī.
39 Lourde, “Les juridictions consulaires,” 20-1.
40 On this treaty see Ben-Srhir, Britain and Morocco, 24-61.
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