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

of consular courts by specifying that the legal status of the defendant would determine the
jurisdiction of cases involving Moroccan subjects (actor sequitur forum rei). 41 Although the
Spanish had introduced this principle half a century earlier, it was only after 1856 that other
nations adopted it as well. 42 Hereafter, if a Moroccan plaintiff sued a foreign national or protégé,
the case would be tried in the appropriate consular court. When a foreign national or protégé
wanted to sue a Moroccan subject, however, he would still have to appeal to the Moroccan
authorities, although his consul retained the right to be present at these trials. Criminal cases
generally followed the same jurisdictional guidelines outlined above, with minor exceptions for
cases in which a Moroccan was accused of killing a foreigner. 43 However, murder trials were
relatively rare; most criminal cases involved theft, and even those were far outnumbered by civil
cases.
In some instances, special “commercial tribunals” were set up to rule on strictly
commercial disputes in which foreign subjects and protégés were involved; the local Makhzan
official presided over these courts, which were also composed of the consul concerned,
merchants (foreign and Moroccan), and sometimes umanā’ (tax and customs officials) or a
41
Ibid., 51-2; Kenbib, Les protégés, 49 ; Lourde, “Les juridictions consulaires,” 21-2. This was specified in Article
Nine of the treaty (see Mūdirīyat al-Wathā’iq al-Mālikīya, Al-Wathā’iq, v. 4, 148-9).
42
The Spanish treaty was signed on November 20, 1861. On this treaty generally, see Jerónimo Becker, España y
Marruecos : sus relaciones diplomáticas durante el siglo XIX (Madrid: Tipolitografía Raoul Péant, 1903), 90-1.
The Spanish adopted Article Nine from the 1856 British treaty almost word for word: Mūdirīyat al-Wathā’iq al-
Mālikīya, Al-Wathā’iq, v. 4, 177-8 and Lourde, “Les juridictions consulaires,” 23.
43
See the letter from Aymé d’Aquin, the French ambassador, to Muḥammad Bargāsh, the sultan’s minister of
foreign affairs, proposing that in cases where Moroccan subjects were accused of murdering French subjects, the
trials would take place in Tangier and be judged by the Makhzan’s minister of foreign affairs along with two other
officials. The French minister would also be present, and all testimony would be recorded by ‘udūl but signed by
the governor (and not the qāḍī, presumably in order to maintain the secular nature of the proceedings): MAE Nantes,
Tanger A 158, Aymé d’Aquin to Bargāsh, 7 Sha‘bān 1282 (26 December 1865). The Spanish minister seems to
have made the same proposal in a nearly identical letter to Bargāsh dated July 1865. See also MAE Courneuve, C.P.
Maroc 53, Féraud to Florens, 12 September 1887. On criminal cases generally, see also Lourde, “Les juridictions
consulaires,” 28.
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