THE OTTOMAN LAND LAWS WITH A COMMENTARY ON THE OTTOMAN LAND CODE OF 7th RAMADAN 1274 & i. IJ. R.'t^TUTE PRESIDENT OF THE LAND COURT - JERUSALEM. BARRISTER AT LAW OF THE MIDDLE TEMPLE. LATE OF THE INDIAN CIVIL SERVICE. &23S4- =M=M> =**-• ALL RIGHTS RESERVED Ptd. at Brash Conv Praam. / This book is dedicated to my friend John Buchan. / PREFACE. This book is intended to furnish an explanation of the Law of Mine and other State lands in Palestine, Tor the benefit or English speaking judges and lawyers It is the only buok in English which deals with the development of this branch of Turkish Law in Palestine, and for this reason apologies, which may be needed lor its contents, are not needed for its existence. It gives the text of the Ottoman laws contained in Sir Stanley Fisher's "Land Laws" together with the Iraq translation of the Provisional Laws. This makes it a fairly complete book or reference up to the time or the Occupation. The numerous Orders-in-Council and Ordinances, which have been passed since thai daLe, are collected in the two volumes ol "The Legislation or Pales­ tine" compiled by Mr. Norman Bentwich MC, which is adequately indexed. Their inclusion in tins \olume would, Lhererore. serve no useful purpose The commentary is confined to the Ottoman Land Code, ihough of course the notes contain frequent references to subsequent legislation. It differs lrom the ordinary legal text book in that it does not contain references to decided cases. 7 his is due to the fact that, in the absence of an adequate system of law reporting, it is impossible to ascertain either, what decisions have been passed, or what decisions are operative on any given point. Under these circumstances an attempt to quote cases would necessarily be incomplete, and almost certainly misleading. The most that can be safely attempted in this direction is to give the trend of decisions, where such a trend can be clearly discerned. This has been done. The author has taken considerable pains to explain the underlying prin­ ciples or the Ottoman Law of Immovable Property. This has led to short dis­ quisitions on those Articles or the Mejelle on which the Land Law is, in part, based. Pains have also been taken to show the policy underlying matters which are bkely to be unfamiliar to the English lawyer, such as the devolution of land by right of Tapou, and the manner in which the strange tenure known as Quasi MuJk came into existence. It is hoped that noles of this character will assist the English reader to grasp the meaning and scope of the Land Law with some facility. The writer is acquainted with no work in a European langunge which proceeds on these lines, except Chiha's fine essay written in the French language. Sir Stanley Fisher has kindly permitted the use or the admirable transla­ tions contained in his book on the Land Code. As they have established them­ selves as the standard English tivt in Palestine, a commentary based on a fresh translation would have suffered under grave disability. Thanks are due to my friend, and brother Judge Aziz, Eif. il Daoudi for help, which he has kindly given, in completing the notes on the last chapter of the Land Code. The author is keenly conscious oT the inadequacy of the equipment of an English lawyer for the task he has undertaken. He has, however, done his best to convey to his readers the result of several years experience as President of a Land Court, in such a form as will enable them to avoid difficulties and perplexities, which cost him much time trouble to surmount. He will be grateful for such suggestions and corrections as they may care to furnish. Before closmg it is necessary to stress the fact that questions or juris­ diction and procedure are not discussed in this commentai'y. It is confined to substantive Law. The reason for this decision is that the law relating to jurisdiction and precedure is in an unsettled stale. Many changes have been introduced since the Occupation and the advent of a Land Settlement will necessitate many more. Under such circumstances no discussion of these branches of the Ian in their relation to the work of the Land Courts can have more than an ephemeral interest or importance R. C. TUTE. Jerusalem, 4th January, 1927. THE OTTOMAN LAND CODE OF 7* RAMADAN 1274 ( = 21« APRIL 1858) INTRODUCTORY CHAPTER ARTICLE 1. Land in the Ottoman Empire is divided into classes as follows: (I) l'Mulk" land, that is land possessed in full ownership: (II) "Mirie" land; (III) 'Mevqufe" land, (\V) 'Metrouke" land; (V) "Mevat" land. NOTE 1 (ART \ ) Classification of Lands In tha Coda. The classification of lands which is given in this Article is somewhat illogical. Classes II. IV and V. are all varieties of land of which the State is the Supreme owner. Mulk land is land held in pmale ownership, and Mevqufe is land held, theoretically, in the ownership of the Deity, and, for practical purposes, b\ the properly constituted Wakf or Trust authority There are thus three main classes of land:- MULK, MEVljUFE, and STATE lands. Mulk lands are governed by the pi ovisions of the MejeUe, Mevqufe lands by the general Sharia law, and Mine lands by the Land Code. It will be seen later that this statement is a little too wide. It will however serve to emphasise the fundamental distinctions between the three main classes of land (Vide Art. 2 Note 6). In each class the ultimate ownership, or rakaba, lies in different hands. In the case of Mulk property it lies with the mulk owner, with the result that his is the moat complete form or ownership known to Moslem Law. ID the case of Mevqufe land, the circumstance that ownership is attributed to the Deity is responsible for the fact that these lands cannot normally be trans­ ferred or diverted from the use to which they were originally dedicated. In the case of Mirie land, the fact that the rakaba resides in the State has rendered it possible for the State to assume the management of these lands under the provisions ol the Land Code. State lands consist in Mirie (II), Metrouke (IV) and Mevat (V). These are the lands with which the Land Code and this Commentary deal. — 2 — Mine, as already indicated, is agricultural land held from the State. Metrouke lands are those which are reserved for public or communal use — such as roads and pastures. Mevat lands are those uncultivated areas which lie outside the boundaries of existing villages, and which are usually available for clearing and cultivation. NOTE 2. (ART. 1 j Objects of the Land Cod*. Previous to the passage of the Ottoman Laml Code lands of all kinds, except Wakfs of the perfect, or Sahih, class, were dealt with b\ the Courts under the Civil Law which is codified in the Mejelle At that time it was easy to convert Mine land into mulk b\ building or planting. This transferred the rakaka (rom the State to the individual. On be­ coming full owner in this way, the individual was under considerable induce­ ment to pass the land into the Wakf clas* b> dedication. He could do so on terms which would ensure all its benelits to himself and his descendants, while his property was protected by the strongest le^al and religious sanctions known to Moslem Law from seizure by the Slate or its Officers» The process was one or bivaking the control of the Stale in two slaves. Il> result was the progressive deprivation oT the State of ven valuable rights. One of the main objects of the Land Code was to put a stop to this process An equally important object was to bring the persons who cultivate State lands into direct relatious with their overlord. Before the passage or the Code these lands were managed by feudatories and farmers, who purchased the right to collect tithes by payments in money or service. The interest of such persons lay in immediate and rapid acquisition - in other words, in extortion. It was opposed to the interest of the State, which is best secured by the development and extension of cultivation, and the well being of the cultivator. The Land Code therefore contains provisions which are designed to bring the State into direct relations with the cultivators of its lands. The means adopted to achieve the two ends which are here indicated are to be learned from the articles of the Land Code, and the provisions of sub­ sequent legislation. — 3 — NOTE 3. (ART. 1) Public Lands. The Order in Council published in the Gazette of the 1st. September, 1922 brings into existence a class of lands called Lhiblic lands. They are denned (Art. 2.) as "All lands in Palestine which are subject to the control of the ' Government of Palestine by virtue of Treaty, conventions, agreement or succes­ sion, and all lands which are or shall be acquired for the public service or otherwise." Article 12 vests these lands and all rights therein in the High Commissioner, and Article 13 gives him the power to grant or lease them in accordance with law, then existing, or to be passed hereafter. It is difficult to assign limits to the application of the very wide terms or the definition of Hublic lands given in Arliule 2 of the Order in Council Under Arsicle 12 (2) all mines are included in the category of public lands, except those which are the subject of an existing and valid concession The lands dealt with under the Land Code as "Mahlul", i.e.