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

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