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

A case from 1885 clearly indicates why some Moroccan subjects preferred a qāḍī’s ruling
to that of a consul. In 1885, a British firm based in Gibraltar called Glassford and Co. sued three
Jews in Tetuan (J. Benmerqui, J. Cohen y Garzon, and Bendahan) for unpaid debts. 142 Initially
Glassford and Co. wanted to pursue the case in a British consular court. 143 In fact, they
threatened to sue in Gibraltar—presumably if the defendants did not agree to be tried in the
British consular court in Morocco. These Moroccan subjects thus had the opportunity to avoid
the Moroccan judicial system if they so wished. However, all three declared that they wanted the
case tried in a sharī‘a court, which was their right as Moroccan subjects. Nahon, the British
consul, reported thus:
…I spoke with the said gentlemen [Benmerqui, Cohen y Garzon, and Bendahan] and told
them about the reclamations of [Glassford and Co.]; but these [men], refusing to pay the
interest [on the loan], notified Glassford and Co. how they pleaded, and that as Moroccan
subjects, they intended to bring the case to the sharī‘a court, where they believed they
would not be obliged to pay interest. 144
In other words, the three Jews preferred to take the case before a qāḍī because in Islamic law
they would not be charged the interest on the loan. 145 Nahon pleaded before the pasha of Tetuan
that the case was a commercial matter and therefore did not fall under the jurisdiction of the
sharī‘a court. He tried instead to have the case judged by the pasha, who might have proved
more favorable to Glassford and Co. The pasha, however, replied that since the Jews had asked
that the case be tried in a sharī‘a court, he was legally bound to grant their request. 146 He
142
FO 636/3, Nahon to White, 13 October 1885.
143
Isaac Nahon, the vice-consul in Tetuan, was not entirely clear in his letter describing the case, which is why I am
hesitant to provide a definitive version of the facts.
144
Ibid.
145
Islamic law does, in fact, accommodate a number of ways of charging hidden interest, but a contract which
stipulated outright interest would have been null and void in a sharī‘a court (see the discussions in Chapters Two and
Five).
146
Islamic law on this issue is somewhat complicated. In the Mālikī school of law, a judge has the right to refuse a
case brought to him by two dhimmīs of the same confession. Yet other schools (such as the Ḥanafī school) rule that
the judge must accept such a case. The pasha might have been referring to this principle in his declaration that once
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