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

claims.” 52 On July 12, 1872, the consuls wrote a joint declaration explaining why they refused
to continue their participation in the Mixed Court. 53 The consuls also claimed “That the
Moroccan sharī‘a court does not admit the declarations of Christians or Jews as valid
[evidence],” despite the lack of any substantiation of this assertion. 54 Ultimately, the consuls
recognized the importance—indeed necessity—of notarizing legal documents before ‘udūl.
What caused them to protest was the near impossibility of actually notarizing legal documents
given the resistance posed by ‘udūl and qāḍīs throughout Morocco. The Moroccan Tribunal’s
refusal to recognize documents lacking notarization served as a strong reminder to foreign
officials, subjects, and protégés to ensure that any documents they wanted to use as evidence in
Moroccan courts were notarized by ‘udūl and qāḍī. 55
After the Mixed Court debacle, the central role played by ‘udūl in the functioning of
consular law became even more prominent. Islamic legal documents were used for matters
outside the strict jurisdiction of sharī‘a courts, such as in cases where the legal status of an
individual came into question. For instance, in 1885 the Spanish consul in Safi wrote to the
pasha of that city, ‘Abd al-Khāliq b. Hīma: the consul wanted to register a Muslim (Qudūr b. ‘Alī
al-Najafī) as the “mokhalet” (the business partner of a protégé who also benefitted from foreign
52
AGA, Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 50, 27 June 1872.
53
AGA, Caja M 9, Exp. no. 1 (81/9), Declaration by the members of the International Commission, 12 July 1872.
54
Ibid. In addition, the consuls’ objected to the limitation of officially recognized qāḍīs to the thirteen enumerated;
to the tribunal’s refusal to recognize powers of attorney drawn up abroad (and thus not notarized by ‘udūl) even
when the plaintiff did not reside in Morocco; and finally, to the procedure for oaths. Concerning oaths, the consuls
maintained that, “el solo juramento del deudor musulmán negando la deuda invalida los títulos y documentos legales
que en prueba de la misma deuda presentan los reclamantes cristianos o hebreos, sin que a estos se admita el
juramenta conforme a su religión.” In this instance it is clear that the consuls misunderstood the nature of the Mixed
Tribunal’s procedure, assuming that the plaintiff could not take a counter-oath because of his religion. However, as
discussed in Chapter Two, sharī‘a courts admitted the oaths of non-Muslims just as they admitted those of Muslims.
Rather, the Mixed Tribunal followed Islamic legal procedure, which at times prevented a plaintiff from taking the
oath.
55
This does not include evidence presented to commercial tribunals, which accepted documents drawn up in
consulates (see, e.g., FO, 631/3, p. 139b-140a, Carstensen to Hay, 4 February 1869). However, as mentioned above,
commercial tribunals seem to have been relatively rare; the norm remained notarization by ‘udūl for all commercial
contracts involving Moroccan subjects.
306