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

oth at the local and state level did Herkoz write to the French minister as a “last recourse,”
requesting that Ordega write to the Makhzan authorities and ensure that they pursued his case. 64
A slightly different rule existed for cases involving real estate, which were subject to the
jurisdiction of the sharī‘a courts after 1880. In such cases, plaintiffs had to appeal to the
consulate of the defendant if they wanted to press charges against a foreign subject or protégé.
The consulate would then send the case to the sharī‘a court to be judged by a qāḍī. 65
As mentioned above, the capitulation treaties included the provision that foreigners who
pursued cases in a Moroccan court had the right to have their consul (or another diplomatic
representative) present. Yet this rule, too, was often disregarded; in 1868, the British vice consul
in Essaouira, Fred Carstensen, wrote to the pasha of the city concerning a case in which a British
subject (Omar el Kessool [sic]) was suing a Moroccan subject. Carstensen complained that the
case had gone to the sharī‘a court without any British representative present. 66 Although
Carstensen clarified that “our desire is to settle the matter in the sharī‘a court,” he insisted that a
British representative (literally, “one of our friends (aṣḥābinā)”) be in attendance.
Despite the apparent clarity of the rules governing procedure for disputes involving
foreign subjects or protégés, the reality of Morocco’s legal system meant that cases often played
out in ways that deviated from official guidelines. 67 Consuls and Makhzan officials sometimes
64
There are a number of similar letters from French protégés to Ordega from September and October 1884 (see, e.g.,
MAE Nantes, Tanger A 161, Joseph Cohen to Ordega, 2 September 1884). This suggests that Ordega informed
French subjects and protégés that they should write to him if they had any claims pending with the Morocan
authorities; this was in preparation for a demand that the Makhzan pay indemnities for a number of French
reclamations (which was settled in October 1884: see Miège, Le Maroc et l’Europe, v. 4, 63-4). See also MAE
Nantes, Tanger A 164, Ben Malka to le Comte d’Aubigny, 28 July and 30 August 1892.
65
For an example of a case in which a Moroccan subject applied directly to a qāḍī for a real estate suit she had
against a French subject, see MAE Nantes Tanger B 1325, Dossier Azancot v. Elazar, 1891-1892. In this instance,
the qāḍī refused to hear the case since it had not been sent to him by the French consul.
66
DAR, Ḥimāyāt, 15048, Carstensen to al-Ḥājj ‘Amāra b. ‘Abd al-Sādiq, 24 Rabī‘ I 1285/ 15 July 1868. See also
FO, 631/3, Carstensen to Hay, 17 August 1868.
67
This is part of what makes it difficult to determine whether other states followed the British or French procedure
for filing cases.
286