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

an important moment in the history of the Moroccan state, the creation of Moroccan nationality
did not practically alter the functioning of legal institutions in Morocco. More importantly,
Article 11 of the treaty specified that legal matters related to real estate would be subject to the
exclusive jurisdiction of the “laws of the country,” which effectively meant sharī‘a courts. 48
(Part of the motivation for subjecting all cases involving real estate to sharī‘a courts was to better
control foreigners’ acquisition of real estate in Morocco. 49 ) Between 1880 and 1912, few
changes were made to the treaties regulating consular courts and their jurisdiction in Morocco. 50
The majority of cases involving protégés and foreigners were civil matters; unpaid debts
and other financial disputes most frequently brought protégés to court (as with the cases
examined in Chapters Two and Five). There were a limited number of criminal cases involving
protégés, including a number of theft cases 51 and some concerning murder 52 (which were also
naturalized abroad who shall return to Morocco must, after a period of residence equal in time to that which was
legally necessary to obtain [foreign] naturalization, choose between his complete submission to the laws of the
[Moroccan] Empire and the obligation to leave Morocco” (ibid., 262). On the context of this clause, see Marglin,
“The Two Lives of Mas‘ud Amoyal.”
48
The full text of the article is as follows: “Le droit de propriété au Maroc est reconnu à tous les étrangers. L’achat
de propriété devra être effectué avec le consentement préalable du gouvernement, et les titres de ces propriétés
seront soumis aux formes prescrites par les lois du pays. Toute question qui pourrait surgir sur ce droit sera décidée
d’après les mêmes lois, avec l’appel au Ministre des Affaires étrangères, stipulé dans le traité.” For a full text of the
treaty, see the appendices in Ibn Manṣūr, Mushkilat al-ḥimāya, 193-209. This article was introduced in order to
ensure that foreigners had the right to buy real estate in Morocco, which had previously been limited or nonexistent
(although there were certainly exceptional cases in which foreigners were able to acquire property: see Kenbib, Les
protégés, 95-6).
49
This was especially important given the large number of cases concerning ḥubs properties, that is, pious
endowments that were managed by an appointed official known as the nāẓir. For a clear indication that Makhzan
officials wanted to prevent foreigners from owning property, see, for example, DAR, Tetuan, 1226, Muḥammad b.
Aḥmad al-Khadar to Mawlāy Ḥasan, 15 Jumādā II 1298.
50
Another article in the Treaty of Madrid had a limited effect on protection: Article Five stipulated that shaykhs and
other Makhzan officials could not become protégés. However, this had little effect on the overall system regulating
consular jurisdiction.
51
See, e.g., DAR, Tetuan, 1215, Muḥammad b. Aḥmad al-Khaḍir to Muḥammad Bargāsh, 29 Rabī‘ II 1296; DAR,
Meknes, ?? to Governor of Meknes, 8 Rajab 1296; DAR, Ḥimāyāt, Tūrīs to Mawlāy Ḥasan, 10 Shawwāl 1301;
DAR, Rabat/Salé, 16841, Green to Muḥammad Tūrīs, 30 August 1889/ 3 Muḥarram 1307.
52
DAR, Ḥimāyāt, Tūrīs to Mawlāy Ḥasan, 10 Shawwāl 1301; DAR, Fez, 26405, Montfraix to Muḥammad Tūrīs, 26
Ramaḍān 1302.
283