IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
However, when Benzacar presented his case to the Moroccan Tribunal (which was entrusted with ruling on the claims examined by the International Mixed Commission), Ibn Sūda, the tribunal’s president, refused to accept the bills of debt as legal evidence. Ibn Sūda observed that “the documents presented in this session lack the requirements of the sharī‘a, that is, the seal and signature of the qā’id Haman are not legalized by two ‘udūl, whose signatures in turn should be legalized by a qāḍī.” 45 Nor was Benzacar the last protégé to have this problem. Faced with the refusal to recognize contracts lacking the signatures of ‘udūl, the consuls agreed to a three- month pause in the proceedings in order to give plaintiffs enough time have the un-notarized documents signed by ‘udūl so that they would conform with “the requirements of the sharī‘a.” 46 In February of 1872, Mawlāy Ḥasan reportedly sent a letter to the qāḍīs of the port cities instructing them to help facilitate the notarization of bills of debt belonging to foreign subjects and protégés who had claims against Makhzan officials and shaykhs. 47 However, when the Moroccan Tribunal reconvened in June it soon became clear that very few creditors had been successful in their efforts to notarize their bills of debt. Bernardino Borras, a Spanish subject and one of the creditors, made the following remark to the International Mixed Commission: “Mister President, the legations and consulates in Tangier have learned from the agents on the coast that it is not possible to obtain any kind of legalization [of documents]. All of us who have reclamations have tried to do so in vain.” 48 Borras inmediatamente à los señores Lambert y Abecasis debidamente numerados y firmados los tres primeros por el Señor Don Julio Monge y los tres últimos por el Señor Don Antonio M. a Orfila,” (AGA, Caja M 9, Exp. no. 1 (81/9), Diario de los Sesiones de la Comisión Mixta Internacional, libro primero, p. 5-6, 12 October 1871). This is the case, as far as I can tell, for all the documents recorded in the commission’s registers. 45 AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 4, 23 November 1871. 46 AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 19, 4 December 1871. 47 AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 33, 11 February 1872. Mawlāy Ḥasan’s instructions specified that the notarizations had to take place before June 15, presumably in order to be ready for the next session of the Moroccan Tribunal. 48 AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 39, 24 June 1872. On the refusal of ‘udūl and qāḍīs to notarize the documents of foreign subjects and protégés, see also AGA, Caja M 9, Exp. no. 1 (81/9), 304
speculated that the reluctance of the ‘udūl and qāḍīs to notarize foreigners’ documents was due to “secret orders from the sultan that they oppose the legalization of said documents.” 49 A consular official in Safi reported that the qāḍī of that city never received orders from the sultan regarding the notarization of these documents. 50 Given that foreign subjects and protégés later filed complaints about ‘udūl and qāḍīs who similarly refused to notarize their documents (discussed shortly), it seems unlikely that the obstacles encountered in the spring of 1872 were the result of secret orders from the sultan. It seems more probable that the Makhzan never sent local qāḍīs orders to legalize such documents in the first place, or that local qāḍīs and ‘udūl simply refused to comply with these orders. In any case, the difficulty of obtaining notarizations by ‘udūl—along with a number of other complaints about the conduct of the Moroccan Tribunal 51 —led the consular officials participating in the Mixed Court to pull out of the effort entirely. After only four sessions, they declared that it was impossible “to obtain justice in the court appointed to resolve these Muḥammad b. al-Ṭayyib b. Hīma to ??, 21 Rabī‘ I 1289/ 29 May 1872, and the Spanish vice-consul in Mazagan to Francisco Merry y Colom, 7 July 1872. It seems that none of the British subjects in Essaouira had this problem— though there were no British subjects from this city who had claims to bring before the Mixed Court (see FO, 631/5, p. 39a-b, Carstensen to White, 6 July 1872). 49 AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 39, 24 June 1872. 50 AGA, Caja M 9, Exp. no. 1 (81/9), José Butler to Francisco Merry y Colom, 4 June 1872. Butler further reported that the current qāḍī refused to recognize the signature of his predecessor when it came to the documents of foreign subjects and protégés, despite the fact that the qāḍī clearly knew the signature. 51 Perhaps the other most common obstacle was that the Moroccan Tribunal refused to recognize the signature of qāḍīs who were not one of the thirteen officially sanctioned judges appointed by the Makhzan (see the discussion on AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 44, 26 June 1872). It is not entirely clear who the other qāḍīs who had legalized some of the bills of debt were, and whether the demand that the qāḍīs be among the thirteen enumerated was in fact a Makhzan policy or merely a tactic to avoid honoring the bills of debt presented to the Tribunal. Another disagreement stemmed from the consuls’ objection to the procedure for taking the oath in a sharī‘a court. During another session of the court, Bernardino Borras presented evidence of bills of debt owed to him; however, Ibn Sūda did not know the qāḍī who had countersigned the notarized document, and thus refused to accept the evidence as valid. Ibn Sūda explained that at this point Borras’s only option was to demand the oath from the defendant. The consuls wanted to know if Borras could then take a counter oath, and Ibn Sūda explained that, in demanding the oath, Borras “se supine que lo ha exigido para atenerse a los resultados de lo que esta jure” and had no other recourse. The consuls clearly assumed that Borras’ inability to take a counter oath was related to the sharī‘a’s inherent bias against non-Muslims. See AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 52, 29 June 1872. 305
- Page 263 and 264: Yet murder cases were not the only
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However, when Benzacar presented his case to the Moroccan Tribunal (which was<br />
entrusted with ruling on the claims examined by the International Mixed Commission), Ibn Sūda,<br />
the tribunal’s president, refused to accept the bills of debt as legal evidence. Ibn Sūda observed<br />
that “the documents presented in this session lack the requirements of the sharī‘a, that is, the seal<br />
and signature of the qā’id Haman are not legalized by two ‘udūl, whose signatures in turn should<br />
be legalized by a qāḍī.” 45 Nor was Benzacar the last protégé to have this problem. Faced with<br />
the refusal to recognize contracts lacking the signatures of ‘udūl, the consuls agreed to a three-<br />
month pause in the proceedings in order to give plaintiffs enough time have the un-notarized<br />
documents signed by ‘udūl so that they would conform with “the requirements of the sharī‘a.” 46<br />
In February of 1872, Mawlāy Ḥasan reportedly sent a letter to the qāḍīs of the port cities<br />
instructing them to help facilitate the notarization of bills of debt belonging to foreign subjects<br />
and protégés who had claims against Makhzan officials and shaykhs. 47<br />
However, when the Moroccan Tribunal reconvened in June it soon became clear that very<br />
few creditors had been successful in their efforts to notarize their bills of debt. Bernardino<br />
Borras, a Spanish subject and one of the creditors, made the following remark to the<br />
International Mixed Commission: “Mister President, the legations and consulates in Tangier<br />
have learned from the agents on the coast that it is not possible to obtain any kind of legalization<br />
[of documents]. All of us who have reclamations have tried to do so in vain.” 48 Borras<br />
inmediatamente à los señores Lambert y Abecasis debidamente numerados y firmados los tres primeros por el Señor<br />
Don Julio Monge y los tres últimos por el Señor Don Antonio M. a Orfila,” (AGA, Caja M 9, Exp. no. 1 (81/9),<br />
Diario de los Sesiones de la Comisión Mixta Internacional, libro primero, p. 5-6, 12 October 1871). This is the case,<br />
as far as I can tell, for all the documents recorded in the commission’s registers.<br />
45<br />
AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 4, 23 November 1871.<br />
46<br />
AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 19, 4 December 1871.<br />
47<br />
AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 33, 11 February 1872. Mawlāy Ḥasan’s<br />
instructions specified that the notarizations had to take place before June 15, presumably in order to be ready for the<br />
next session of the Moroccan Tribunal.<br />
48<br />
AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 39, 24 June 1872. On the refusal of ‘udūl and<br />
qāḍīs to notarize the documents of foreign subjects and protégés, see also AGA, Caja M 9, Exp. no. 1 (81/9),<br />
304
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