Commoditization of Land

Private and state ownership of land had coexisted in the Middle East since ancient times, but their legal boundaries and the rights of the peasants as opposed to those of the state have long been contentious issues. As far as the Ottoman government and a majority of Ottoman jurists were concerned, most agricultural lands belonged to the state.^[59] Fully owned private (milk) lands were, generally speaking, limited to those spaces located within the physical boundaries of population settlements—that is, inside cities, towns, or villages—plus a narrow perimeter around them that consisted mostly of terraced land.^[60] The city of Nablus, for example, was surrounded by a belt of terraced olive groves, fruit orchards, vineyards, and irrigated gardens, all of which were divided into hundreds of plots, each called by a name. These plots, in turn, were subdivided into shares that were bought and sold as fully private property with the same legal status as residences, shops, and factories inside the city walls.

The wide stretches of land lying beyond the perimeters of cities, towns, and villages—that is, the “dry belt” on which mostly grains and cotton were grown—technically belonged to the state and could not be bought and sold as fully private property. Peasants did not have a legal right to full private ownership of state agricultural lands. Rather, they had usufruct rights as long as they did not allow these lands to lie fallow for more than three years.^[61] This right of use had no time limit: the land could be and was passed down through inheritance for generations. In return for its use, peasants paid taxes (such as ushr, or tithe, also called miri) that were levied both in cash and kind, plus a whole range of other (sometimes illegal) exactions.

The power of the Ottoman government to enforce this legal framework ebbed and flowed, but generally speaking it managed to exercise real power over state lands. Large areas of state lands, for example, weredesignated as part of the private holdings of the sultan and his family, endowed as a revenue-producing charitable waqfs, parceled out as fiefs (timars) for cavalry officers (sipahis), auctioned off as tax-farms (iltizam) to the highest bidder, or granted as lifelong tax-farms to individuals (malikane).

As far as the peasants who actually farmed these lands were concerned, however, none of these arrangements touched the essential character of their relationship to the land: they considered it their own. Perhaps unbeknown to many peasants, their conception of land as their own private property was also supported by a minority of Muslim jurists in the Fertile Crescent. The minority school—represented by such influential figures as Khayr al-Din Ramli (1585–1671) and Ibn Abidin (1784–1836)—argued away most if not all of the legal obstacles to private ownership of such lands.^[62] In any case, peasant attitudes in this regard were reinforced over the centuries as each clan and village became identified with particular lands, which they treated as their private property regardless of the changing faces of the tax collectors. At least, this was the case in the highlands of Palestine, where small landholdings prevailed and where the average male peasant could expect to inherit a piece of land, the proceeds of which could provide a living for himself and his family. Consequently, village communities were characterized by a strong bond with their place of origin, as well as by a spirit of autonomy that was impatient with interference by the state. These qualities were especially apparent in the olive-based hill villages, where horticulture was a way of life.

Court cases registered in the eighteenth and early nineteenth centuries show that the peasants of Jabal Nablus, like those of Egypt, did indeed dispose of nominally state lands as if they were their private property by mortgaging, renting, or selling their usufruct rights.^[63] The most common practice was for peasants to mortgage their land. For example, in a lawsuit dated mid-January 1724 we learn that an urban moneylender gained control of the two pieces of timar land in the village of Askar after the peasant who had previously worked that land defaulted on a debt amounting to 25 piasters and a basket of rice worth 0.25 piaster. For the next seven years the moneylender had another peasant family plant this land. He also kept the proceeds, from which he paid the timar dues to a sipahi from the Nimr family. When the peasant attempted to take his land back, the moneylender took him to court and proved that the land was his to control because it had been put up as collateral for the loan and because the peasant had previously agreed in their private contract that the moneylender was to enjoy the right of use as long as that loan remained unpaid.^[64] In theory, the peasant’s right of use was merely postponed, not negated, but in practice he lost access to his land.

One step further was selling usufruct rights outright. Peasants who sold their usufruct rights to other peasants or to urban dwellers were left with no legal recourse to regain control of their land. This is because secular Ottoman law (qanun) (also justified by Islamic law) stipulated that usufruct rights belonged to those who tilled the land for three consecutive years and that challenges to these rights would not be allowed after a period of fifteen years.^[65] An example is a case recorded on May 29, 1837:

Today, Yusuf al-Asmar son of Abdullah al-Jabali from the village of Bayta appeared before the noble council. Being of sound mind and body he voluntarily testified…that he ceded, evacuated, and lifted his hand from the piece of land located in Khirbat Balata…to the pride of honorable princes, Sulayman Afandi son of…Husayn Afandi Abd al-Hadi. [The latter] compensated him 700 piasters…and the aforementioned Yusuf al-Asmar gave permission to Sulayman Afandi to take over the piece of land.^[66]

The document carefully avoided words which that imply full private ownership and clearly stated that Yusuf al-Asmar sold his right to this land, not the land itself. But, as all the parties to the transaction no doubt understood, this was a sale of state-owned land in all but name. At first glance, it seems that the sale of usufruct rights was not a widespread practice: only a small number of such transactions were recorded in the Nablus Islamic Court before 1850, and this particular transaction was first concluded in the chambers of the Advisory Council, headed by none other than the buyer himself, then sent to the Islamic court to be registered. Yet there is evidence from Greater Syria and Egypt that land sales among peasants were not unusual long before the mid-nineteenth century, and the dearth of recorded cases has more to do with the nature of the sources than with actual practice.^[67] As shown above, the peasants of Jabal Nablus rarely appeared in court before the 1850s, for a variety of reasons. In addition, court fees and exposure to taxes made registration of purchases an expensive and undesirable proposition.^[68] Perhaps more important, peasants were aware that the judges of the Nablus Islamic Court were staunch defenders of the government’s views on land-tenure relations. Indeed, and in case after case, these judges ruled accordingly.^[69]

This tension between informal practice and state law caused legal quandaries for the judges on those rare occasions when private arrangements surfaced in court. The following lawsuit is a typical example of the difficulties encountered. In April/May 1860 a peasant, also from Bayta, brought a suit against another peasant from the same village. He claimed that twelve years earlier, the defendant had “sold” four pieces of land located in the valley between Askar and Balata villages—that is, state land—and since he “owned” lands adjacent to the properties sold, he claimed the right of shuf‘a (preemption) to these lands. The judge ruled that these were sipahi lands and that the right of shuf‘a did not extend to such lands.^[70] In effect, the judge vindicated the earlier sale of this land as private property even though it had taken place before the 1858 land code, yet denied the plaintiff’s request on the basis that this was state-owned land. This must have caused understandable confusion on part of the peasants, because the judge let stand the assumptions about the earlier sale but ignored its consequences.^[71] In fairness to the judge, it must be noted that scribes in the court had to register testimony as it was given by the litigants. The characterization of land as “owned” and “sold” in the documents, therefore, does not imply that the judge accepted the terminology. Nor could he shift the focus of the case in order to challenge the validity of the earlier sale. All he could do was rule on whether state-owned lands could be preempted by shuf‘a, and his decision in this matter followed the correct procedure: that is, usufruct rights to state lands were not subject to preemption.

The 1858 law, which required the registration of lands, must have seemed to the peasants like yet another initiative by the Ottoman government to improve its tax-collection efforts and to acquire knowledge about individual peasants for conscription purposes. This perception was not far from the truth, and it helps explain the peasants’ lack of cooperation in implementing the law. Unfortunately for the peasants, their unwillingness to vigorously pursue the registration of their lands in their own names made it easier for urban notables to lay claim to these lands and to expand their holdings.

The Ottoman government, one must quickly add, did not design the law to encourage the formation of large private estates or to lay the foundation for a class of absentee urban landholders. On the contrary, the intent, in addition to streamlining tax collection, was to protect the peasant base of production by preserving small landownership and, in the process, give small landholding peasants the incentive to increase production.^[72] The reasons why the consequences of the 1858 land law turned out so differently from the intentions are threefold. First, the material infrastructure for a commercial market in land was in place long before the 1858 land law. Second, the same conditions allowed urban notables to achieve economic dominance over the hinterland. Third, the Egyptian occupation and Ottoman reforms helped to reconfigure local politics by channeling power through a new, merchant-dominated urban elite. Without this power, this elite would not have been able to manipulate the land law to their advantage as quickly and as efficiently as they did, hence creating the impression—which, until two decades ago, was widely accepted—that private property and large landownership developed in Greater Syria as a direct result of the 1858 land law.^[73]

In the case of Jabal Nablus, we have evidence that state lands had actually been converted into full private property—that is, involved more than just the sale of usufruct rights—since at least the late 1830s, or roughly two decades before the 1858 land code was promulgated, much less enforced. Most of these conversions were privately concluded and were not registered in the Islamic court. Some, however, were registered in the Islamic court, proving that the exercise of political power, given the right conditions, could bend the will of presiding judges. The latter type of cases came in two waves, both initiated by the Abd al-Hadi family and registered in the latter half of the 1830s. During this period the Abd al-Hadis were the peak of their power in Jabal Nablus and set up residences in the city itself.

The first wave of these purchases, dating from 1836–1838, was concentrated in the lands of Arraba and Ya‘bad and to a lesser extent, in Ajja and Kafr Qaddum.^[74] The much larger second wave, amounting to twenty-one land purchases, took place over the following two years: that is, when it became clear to the Abd al-Hadis that the days of the Egyptian occupation were numbered and that the time was ripe to cash in on the power and wealth they had accumulated while serving as the Egyptian government’s primary political bulwark in southern Syria.^[75] Simultaneously, for instance, the Abd al-Hadis endowed as waqf the most important of the urban properties they had acquired so far, such as their primary residence, soap factories, mills, warehouses in the commercial districts, and so on.^[76]

The second wave of purchases involved far more extensive tracts of state lands. On May 27, 1838, for example, dozens of people gathered in the Nablus Islamic Court to participate in and witness the sale of several large properties to Muhammad Abd al-Hadi for 29,500 piasters—roughly the price of a fully equipped soap factory, the most expensive and coveted form of real estate in Nablus (see Appendix 3).^[77] These were fertile flatlands, located in valleys and plains, where mostly grains and cotton were grown. In fact, the properties lay in areas so remote that their location was defined by the crossroads leading to various destinations, such as the city of Jaffa and the villages of Qaqun, Anabta, and Attil. The closest that any of the pieces of land came to a population settlement was one described as “near the lands of Tulkarem.”

Another clue to the remoteness of the lands and the immensity of the sale was the number and identities of the sellers involved: more than fifty individuals from four villages—Shwayka, Arraba, Ya‘bad, and Kafr Ra‘i—were listed. Most of them were adult men, each representing an extended family household. But there were also more than a dozen adult women, a smaller number of military recruits then absent and represented by agents, and (apparently orphaned) children represented by court-appointed guardians. The presiding judge—addressing the large crowd in a loud voice—expounded for the record that these sellers came of their own free will and that he viewed the sale of properties owned by minor children as justified, for the sale was meant to provide for their needs. The organizational effort invested in this sale—mapping out the extensive lands, determining which pieces belonged to whom, convincing all the parties to sell, including representatives of absent individuals and orphans, negotiating prices, and then gathering them all in one large sitting—must have been enormous. Only a politically powerful family deeply involved in commercial agriculture could and would invest the time and money in this and other similar purchases registered during this period.^[78]

The available evidence from court records shows that merchants did not become heavily involved in such purchases before the 1850s. Unlike the Abd al-Hadis, it would have been difficult for them to directly supervise and enforce sharecropping agreements in areas that neither they nor the central Ottoman government sufficiently controlled, despite their deeply rooted trade networks. Thus, until the Ottoman government asserted direct control of the interior regions in the 1860s, most merchants were not interested in many of the lands they could have appropriated as a result of defaults on loans. Rather, their primary concern was with maintaining a village or an individual peasant perpetually in debt so that they could secure a steady and cheap supply of agricultural commodities. Besides, merchants found sufficient outlets for their investment in lands much closer to the city. Between 1830 and 1850 the overwhelming majority of agricultural properties purchased by urban merchants and registered in the court were located on the slopes of the two steep mountains that sandwiched Nablus between them or in the valley lands that widened westward. Beginning in the early 1850s the circle of purchases expanded to include villages within walking distance of Nablus, such as Rafidya, Junayd, Bayt Wazan, and Asira al-Shamaliyya.^[79] Soap manufacturers and oil merchants were particularly active in this regard, and each came to own dozens of olive groves in these areas.

Aside from a jump in the number of land purchases beginning in the early 1850s, these transactions were not unusual: most of these properties, including those located inside the villages mentioned above, were considered milk to begin with. This was not to remain the case for long, however. In the late 1850s the circle of land purchases by merchants widened again, spurred by the concentration of capital and by the extension of state authority. More and more of these purchases involved former state lands in the “dry belt” far from Nablus, including flatlands used for grain and cotton production.

Many of these lands were often appropriated directly as a result of defaults on olive oil salam contracts with urban moneylenders. In early April 1864, for example, Abd al-Rahman al-Shaykh Husayn from the village of Aqraba initiated a lawsuit against two powerful soap merchants, Sayyid Sulayman Hashim Hanbali and SayyidHajj Yusuf Hashim Hanbali. Standing before the judge, he admitted to owing 3,333 piasters to the former and 30 jars of oil to the latter. But, he continued, “I have spent four months in prison, and I have nothing to pay them [the defendants] back with except for some lands in Aqraba village.” He then asked the judge to allow him to sell a portion of these properties to the defendants so that he could pay off his debts and be set free.^[80]

The alienation of land as a result of unpaid debts accelerated as the enforcement of debt obligations came to involve the entire urban political and legal apparatus: the Islamic court judge, the mufti, the Advisory Council, the governor, and the subdistrict tax collectors, all of whom were mobilized and worked together to protect the interests of moneylenders. For example, one debtor, Abdullah son of Hajj Isma‘il from the village of Asira al-Qibliyya disappeared without paying his allotted amount of olive oil jars to a rich soap merchant, SayyidHajj Yusuf son of Sayyid As‘ad Bishtawi. Sometime afterward, Hajj Yusuf Bishtawi obtained a fatwa (a religious ruling, akin to a legal opinion) from the Nablus mufti allowing him to expropriate the sheep of the debtor, which were being held by a fellow peasant from the same village.

The matter did not end there. On October 16, 1862, Hajj Yusuf Bishtawi enrolled the Islamic court judge in the effort. The judge sent a letter to the Nablus governor informing him of the situation and asked that he order the chief of the subdistrict in which that village was located to collect all the debtor’s movable properties and send them to Nablus so they could be auctioned off and the proceeds could be applied to the debt.^[81] This was done, but the amount raised was not sufficient. Then, in 1865, Hajj Yusuf Bishtawi initiated another lawsuit, this time against Khalil son of Khalaf from the same village, who had the misfortune of guaranteeing the runaway’s debt.^[82] The defendant lost the case, but he did not have the means to pay back the 20 jars of olive oil stipulated in the salam contract or the 600 piasters originally borrowed. The judge responded by putting his seal on a sales deed that transferred the defendant’s vine-orchard to the plaintiff.^[83]

The appropriation of lands by merchants as a result of defaults on loans was more frequent, penetrated deeper into the hinterland, and began earlier than the cases registered in court would suggest. An example of a private contract, culled from the Nimr family papers, involved Khawaja Mitri, the Christian merchant from Jaffa whom we met earlier. On August 1, 1852, Khawaja Mitri bought as fully private property what technically were state agricultural lands in Jabal Nablus from peasants indebted both to him and to other merchants. One of these peasants was none other than the same Abd al-Rahman with whom he had concluded the sesame salam contract in 1851 quoted above:

Khawaja Khalil Mitri son of the Christian Yusuf Mitri from the people of Jaffa Port bought…from Abd al-Rahman and his brother Mustafa, sons of the deceased al-Sa‘ada from the Sa‘ada branch of the Hajj Muhammad clan of [the subdistrict of] Mashariq Nablus…one half…of the cleared land, empty of trees, called al-Wasiyya that is part of the lands of Kafr Bayta in Mashariq Nablus—bordered on the south by the line separating the plain from the rough lands; on the east by the lands of the Abi Awad family (dar); on the north by the main road; and on the west by the land of Isma‘il al-As‘ad. [Also] one half of maris land called Maris al-Arqadat, bordered on the south by the land of the Abi Abbas family; on the east by the lands of Salim [village]; on the north by the land of the Uthman family; and on the west by the line separating the plain from the rough lands. [Also] the lands called Mi‘ani al-Najma, bordered on the south by the land of the Uthman family; on the east by the line; on the north by the lands of Abi Awad; and on the west by the line separating the plain from the rough lands. All of that, along with its roads, terraces and walls…located in the lands of Kafr Bayta…for 10,000 piasters. [Khawaja Mitri] deducted from this price 4,420 piasters that they owed him according to vouchers in his hand, in addition to 1,420 piasters that Abd al-Rahman owed to Qasim son of Yusuf al-Nabulsi.^[84]

This case clearly shows, first, that as early as 1852 a coastal merchant like Khawaja Mitri faced no insurmountable difficulties in appropriating prime agricultural lands from a peasant in Nablus—even one who belonged to a powerful rural clan that controlled the subdistrict of Mashariq Nablus. Second, Khawaja Mitri’s access to this land was a direct result of a default on a salam contract he had extended just a few months earlier. There is little doubt that these lands were sold in distress, for the two brothers owed more than half of the value of the land to two merchants—one from Nablus and the other from Jaffa—who apparently were business partners. Third, this purchase involved sizable pieces of land (judging by the price paid) and included at least some state lands (judging by the description of the borders).^[85] No wonder, therefore, that this purchase, made six years prior to the 1858 land code, was not registered in the Nablus Islamic Court. Undeterred by the absence of a legitimizing legal framework, the parties involved simply ignored the court altogether. Khawaja Mitri ignored it again when he sold the same land, three years later, to Abd al-Fattah Agha Nimr.^[86]

The widespread traffic in transactions of this kind deeply worried the central government: it undermined its legitimacy and control of land and threatened its fiscal basis. The same, by the way, could be said of ruling families. The expansion of cultivation put pressure on land, leading many peasants to plow new territories considered by these families to be their private property. Afraid that peasants would lay claims to these lands by right of ihya al-mawat (cultivation of virgin lands), they sought to have their claims recognized by the Nablus Advisory Council. For example, on July 30, 1852, a tribal chief, amir (prince) Faris al-Harithy, requested that the council notarize his “haq al-milkiyya” (right of ownership) over large tracts of unplowed valley lands, because peasants from nearby villages were putting these lands under cultivation and claiming them as their own.^[87]

Indicative of these concerns about uncontrolled developments in landholding patterns and challenges to state authority was an 1855 decree—communicated by the Advisory Council of Sidon and relayed by the governor of Jerusalem on March 15 of that year to the qa’immaqam and council members of Nablus—warning all concerned that property transactions must be legally registered in the Islamic court:

[I]t is a practice and a requirement that the selling of shops and houses [mahallat] and lands by their owners…be done under the supervision of Islamic law and according to legal and correct procedures.…[Yet], in some places, these principles are not respected, and houses and lands are being [traded] by brokers and speculators, and registered in documents and deeds that might cause trouble in the future.…Henceforth, if such documents are drawn up by brokers and speculators without informing the court, the appropriate punishment will be meted out to the sellers and buyers, and the documents [which were not approved by the court] shall be considered null and void. If they [the documents] reappear and become cause for quarrels, the local council shall carry out an investigation…and new correct and legal deeds shall be drawn up by the Islamic court, copied into its records, and given to its owners. Those who dare disobey this order shall not be allowed any excuse…[and] are to be reported to us.^[88]

This warning was not heeded, and the pressures from below generated by the commercial traffic in land could not be contained by the Islamic court—or by any institution, for that matter. In this context, it could be argued that the 1858 land law was not an initiator of new land-tenure relations but, rather, a recognition by the Ottoman government of the need to contain and streamline already ongoing processes that threatened to undermine the fiscal basis and, by extension, the political effectiveness of its rule.