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Forms and institutions of justice

The Müvella and the Adjudication of Property Conflicts in the Ottoman Empire (1874-1914)

Alp Yücel Kaya

Texte intégral

  • 1 Article 85: Every affair shall be judged by the tribunal to which the affair belongs. Suits between (...)
  • 2 Ahmed Akgündüz, (1986). Mukayeseli İslam ve Osmanlı Hukuku Külliyatı, Diyarbakır, Dicle Üniversites (...)

1The Ottoman Constitution of 1876 decreed the monopoly of ordinary courts (shari’ and nizamiye) over extraordinary tribunals or commissions in the adjudication of judicial affairs but it conserved also a judiciary space for some procedures to be followed outside the courts, such as the arbitration and the appointment of müvella (articles 81 to 91).1 The article on müvella (article 89) was, indeed, a reiteration of the article 1809 of Mecelle, found in the chapter on the duties of judges, promulgated also in 1876. It prescribed in a sketchy manner that if the litigants did not agree on any of the local judges, they could request the appointment of a müvella.2 But who was the müvella and how such an office having “exceptional” judiciary role was functioning?

  • 3 Düstur, 1st collection, vol.3, pp. 155-157; A.DVN.MKL 12/15/14 Ca 1291; Nuri Ülgenalp, (1949). “Evv (...)

2After surveying the Tanzimat codification, such a question leads researchers immediately to “the Regulation on the Appointment of Müvella” dated 29 June 1874.3 According to the first article of this regulation, müvella was appointed by the Office of Sheykh-ul-Islam (makam-ı meşihat) and the council for the election of shari’ judges (meclis-i intihab-ı hükkam-ı şer’iyye) upon written request from the province on the local settlement of litigations on real estates (emlak-ı sırfa), miri and mevkufe lands and other similar shari’ subjects. The fifth article specified further his functions: the appointed müvella, accompanied by a member from the local court (from court of first instance -deavi meclisi- in the counties –kaza-, from court of appeal -meclis-i temyiz- in the provinces –vilayet-) and county director (kaza müdürü) or cadastral office director (defterdar) if the property in question was miri property or trustee (mütevelli) if it was mevkufe property, was to adjudicate on the litigation on the basis of shari’ law; he was to prepare upon request a shari’ certificate (sened-i şer’i) that was also to be confirmed by the minutes (mazbata) prepared by other officials accompanying him and to be certified by local courts before being sent to the Office of Sheykh-ul-Islam. Once the Office approved the certificate and the minutes, they were sent to their holders and the müvella was to return to Istanbul (article 6).

  • 4 Savvas Pacha, (1902). Le tribunal musulman, Paris, Marchal et Billard Éditeurs; Sedat Bingöl, (2004 (...)
  • 5 Sava Paşa, (1955-1956). İslâm hukuku Nazariyatı Hakkında Bir Etüd, (1892 tarihli Fransızca aslından (...)

3What is the novelty that the müvella brings about in the Ottoman judiciary system in the last quarter of the nineteenth century? The literature on reforms and evolution of judiciary system in the nineteenth century Ottoman Empire does not, however, talk about the müvella4. Is it an older judiciary actor reformed in the Tanzimat period? Nor does the literature on the Ottoman judiciary system of early modern period give any information on the müvella5.

  • 6 One exception is Ekrem Buğra Ekinci (2004 and 2008) who either limits himself by summarizing the re (...)
  • 7 Yücel Terzibaşoğlu, (2003). Landlords, Nomads and Refugees: Struggles Over Land and Population Move (...)

4In this paper, despite such an absence in the judiciary literature6, I aim to find traces of the müvella in the nineteenth century Ottoman archival documents. As, during the Tanzimat period, jurisdiction of nizamiye courts surpasses that of shari’ courts and administration of miri, mülk and waqf properties converges within local and central offices of the Imperial Cadastral Office (Defterhane-i Amire), nizamiye courts become increasingly the tribunals for the adjudication of property disputes in the countryside.7 The above-mentioned regulation that acknowledges the power of a shari’ official in the settlement of property disputes represents, however, a counter current to such an evolutionary path. The second objective of this paper is, therefore, to contextualize the office of the müvella in the settlement of property disputes in the late Ottoman Empire.

Searching for Müvellas Before and After 1874

  • 8 Yuzo Nagata and Ferı̇dun M. Emecen, (2004). “Bir Ayanın Doğuşu: Karaosmanoğlu Hacı Mustafa Ağa’ya A (...)

5First of all, the appointment of the müvella is not an administrative and judiciary invention of Tanzimat governments. In 1755, as the central government seized the wealth of Karaosmanoğlu Hacı Mustafa and his relatives, it was the müvella, from the city of Manisa, who was responsible for the registration of goods held by his scribe and found in Akhisar.8 But such an appointment was really exceptional since, all other registration during this seizure procedure, even for items held by family relatives found in Akhisar, was the responsibility of the kadi of Manisa and other three officials (memur-ı nakl-i zehair, kâtib-i silahdâran-ı sâbık, kethüdâ-yı bevvabin-i şehriyâri) sent from Istanbul.

  • 9 John C. Alexander, (1985). Brigandage and Public Order in the Morea 1685-1806, Athens, [s.n.], pp. (...)
  • 10 According to Alexander, he was part of both local and central power networks, Alexander, Brigandage(...)
  • 11 Halil İnalcık, (1977). “Centralization and Decentralization in Ottoman Administration”, in Thomas N (...)

6Another case from the eighteenth century was the appointment of the naib of Kalamata, as müvella (“special investigative judge” according to John C. Alexander) to investigate the affairs of Halil Bey who usurped and consolidated under his control tax farms of Morea province.9 In 1757, the müvella prepared two reports, by gathering information from local notables about the affairs and troubles that pervaded Morea, to be presented to the Sultan.10 As he acted like an imperial inspector, his function in this case differed from the function of Akhisar’s müvella who was responsible for nothing but the registration of wealth. The common point in both cases is the appointment of not a local but an outsider official in the resolution of a political-administrative-judiciary problem. The central power’s search to distance itself from local power groups, including kadis, is an explanatory motive for such an administrative action. Indeed, as farming-out constituted power basis of local administration and local councils composed of local notables, who gradually assumed in the eighteenth century certain functions previously entirely under the kadi’s jurisdiction, kadis and local notables became interdependent local actors. In such a context, the appointment of müvellas could surpass the influence of the farming-out regime, including the jurisdiction of kadis whose adjudication became biased in favor of local notables in the resolution of property disputes and certification of properties.11 I propose that the central power who would like to distance itself from local ones brought about, in the eighteenth century, increasingly general administrative and judiciary regulations and practices to replace already existing particular and local ones. Indeed, central administration, as it expanded its bureaucracy, increased its correspondence with the provinces to establish more uniform rules across the Empire:

  • 12 Suraiya Faroqhi, (2009). Artisans of Empire Crafts and Craftspeople under the Ottomans, London, I.B (...)

From the mid-1700s onwards, special registers were created, the so-called provincial Ahkâm Defterleri, into which the scribes entered the administration’s responses to complaints from members of the subject population as well as of low-level administrators. Compared to the period before about 1750, the volume of Sultanic commands increased at an exponential rate.12

  • 13 Feridun Emecen, (2005). “Osmanlı Divanının Ana Defter Serileri: Ahkâm-ı Mîrî, Ahkâm-ı Kuyûd-ı Mühi (...)
  • 14 Indeed, in case of litigation over the taxes of a waqf hamlet (mezra), the Divan-ı Hümayun conclude (...)

7By systematizing administrative and judicial practice of old mühimme registers, these records (consisting mostly judicial appeal cases sent from the provinces) served to establish general rules and regulations applicable in the whole Empire and constituted thereafter reference books for administrative and judicial decisions.13 I suggest that the appointment of müvellas in the eighteenth century was also part of such a political-administrative-judicial transformation.14

  • 15 In fact, both bases of power, farming out and property holding, did not exclude each other; they we (...)

8The context in which müvellas were appointed is, however, completely different in the Tanzimat period during which the search of general administrative and judicial categories was at its peak. Archival documents lead us to think that müvellas intervened not in cases of conflicts between central and local powers on economic, administrative and political affairs but in cases of litigation between power groups (central or local) and peasant populations on economic resources, namely real and landed properties. Indeed, what the Tanzimat brought about was a qualitative transformation of economic, social and political relations in the provinces, the power basis was no longer farming-out but property-holding; older power groups were redefined in the new regime as property holders and those who could register and certify properties in their own name joined them.15 It concerned the constitution of a conflictual individual property regime between those who possessed and those who did not on the one hand, and those who would possess and who would not on the other.

  • 16 I.MVL 53/1015/6 Za 1259 (All the archival materials referred in this article are from Başbakanlık O (...)
  • 17 For a completely identical property litigation between peasants and absentee notables over çiftlik (...)

9In 1843, the Meclis-i Vâlâ-yı Ahkâm-ı Adliye decided that land disputes (arâzi davaları) between the population of the village of Kırşove dependent on the city of Manastır and the absentee notables residing in Manastır (Manastır vücuhundan ve hanedânından) necessitated the appointment of a müvella.16 The land in question concerned all building plots (arsa) of houses (menazil), shops (dekkakin), inns (han) and slaughterhouse (salhane) found in the village; both peasants and absentee notables claimed competitively possession rights on them. The kadi of Jerusalem, who desired to transfer his office to the province of Thessalonica, was appointed as müvella to adjudicate the affair. His judiciary work resulted in the conciliation of the two parties. The settlement was based on the recognition of property rights of absentee notables by peasants, the cancellation of all outstanding liabilities between them and then the sale (bey’ ve temlik) of all lands and buildings on it by absentee notables to peasants at a price of 250.000 guruş (in installments). The müvella, then, prepared the sentence (ilâm) and minutes (mazbata) of the transaction before sending them to the Meclis-i Vâlâ.17

  • 18 Bingöl, Tanzimat…, pp. 51-67.
  • 19 Nizamat Defteri 39/37, p.18; İ. MSM 18/414/1257.
  • 20 Astrid Meier, (2002). “Waqf Only in Name, Not in Essence, Early Tanzimat Reforms in the Province of (...)

10Indeed, such a judiciary work, not only to settle disputes but also to issue property (transaction) certificates, was exceptional for, if not contradictory to, what Tanzimat policies sought to establish in the provinces. After Tanzimat, local councils functioning on the province and county level had not only executive but also judicial power. In addition to the shari’a court presided by kadis in the counties, county council was also a local court of first instance and provincial council was both a court of first instance and a court of appeal.18 Additionally, in 1840, provincial councils carried out a property and income survey to establish a new fiscal system and to control, and when necessary, to distribute property certificates which were previously distributed by the kadis and shari’ courts.19 Under the new administration, properties with waqf status would be processed not by the kadis as it used to be the case, but on the basis of waqf legislation by local councils and local directors of Evkaf (subject to the Ministry of Evkaf).20 As for properties with other status, they were thereafter under the authority and administration of local councils. Thus, power in the provincial administration of properties was transferred de jure from shari’ courts to local councils. This was a significant attempt to monopolize the administration of properties of any status (miri, mülk and waqf) within the hierarchy of local and central administration.

  • 21 Bingöl, Tanzimat…, pp. 66-67

11Property surveys, certification of possession with or without titles, because they entitled proprietors by specifying limits and indirectly excluding others, provoked however, during the Tanzimat period, conflicts and disputes among local populations on real and landed properties, as observed also in Manastır. In theory, as the local administrative and judicial authority, it was the provincial councils that were to hear cases of property disputes and settle them.21 What happened on the practical level? Parties in dispute brought litigations that could not be settled locally to the Meclis-i Vâlâ that functioned as a high court of cassation. In such a context the Meclis-i Vâlâ appointed a kadi, as external authority to the locality, as müvella to work locally in order to settle a certain property dispute, despite the fact that kadi courts lost their judiciary power in favor of local councils in the provinces.

  • 22 Ibid., p. 67-76; Ekinci, Tanzimat…, p. 133-142; Musa Çadırcı, (2007). “Osmanlı İmparatorluğu’nda Ey (...)
  • 23 Nizamat Defteri no 44/42, pp. 58-59; Jun Akiba, (2009). “The Local Councils as the Origins of the P (...)

12In 1849, a new regulation on provincial administration reorganized provincial councils in such a way that their executive and judicial powers began to be differentiated to a certain extent.22 Under the authority of provincial councils, specialized councils having judicial powers, criminal council and inquiry council, were created. Functioning already as court of first instance and court of appeal, as a way of curbing the power of shari’ courts, these councils started also to receive appeals from local shari’ courts, especially on disputes on debt and inheritance. Although these local courts, reorganized under the name of nizamiye courts, started to take up more judicial territory from shari’ courts, the division of labor between administrative and juridical spheres became limited within their body; bigger cases, such as highway robbery and homicide, would be handled, not in the courts but as in the first years of Tanzimat, directly by the provincial councils.23

  • 24 Nizamat Defteri, 44/42, pp. 57-69.
  • 25 Akgündüz, Mukayeseli..., p. 826.
  • 26 Ibid., pp. 826, 843-844, 847, 873-874
  • 27 Alp Yücel Kaya, (2009 ). “19. Yüzyıl Ortasında İzmir’de Mülkiyet, Emniyet ve Zabtiyeler”, in Noémi (...)

13As for the implementation of the new property regime, the regulation of 1849 prescribed that the local councils would create necessary conditions for the security of property (article 1), would work for economic development of the province first through ameliorating material conditions of real and landed properties, such as vineyards, gardens, fields, houses and other buildings (article 45) and secondly, on the basis of the 1847 Regulation on Property Certificates, through distribution of property certificates to people who did not have them and sale by auction escheated and vacant lands (article 46).24 Additionally, according to the penal codes of 1851 (Article 1 of chapter 3)25 and 1858 (articles 62, 82, 244, 246, 249)26, in line with that of 1840, it was still the local councils functioning also as local courts that would adjudicate and punish seizure of, attack and intervention into a real and landed property.27

  • 28 İbrahim Serbestoğlu, (2012). “Tanzimat Döneminde Canik Sancağı’nda Arazi ve Vergi Anlaşmazlığı”, i (...)
  • 29 Ibid., p. 6-12.

14Although the administrative and judicial reforms were increasing by inscribing a new regime in the Ottoman countryside, the dynamics of property disputes in the provinces did not change. In 1851, as the land disputes between the notable family in Canik, Hazinedarzâdeler, and around 4.000 peasant households could not be resolved in the local council, the Meclis-i Vâlâ intervened as a high court of cassation after the peasants’ appeal.28 The dispute concerned not only miri lands but also mülk and waqf properties on the one hand, their legal status on the other. The Meclis-i Vâlâ being receptive not only to the voices of peasant population but also those of the notable family, appointed a müvella that would work together with a local council member and a local notable. The work consisted of checking property certificates and determining property limits. The work of the müvella was contested however by the local population; after several changes in müvella office, the dispute was retransferred to the Meclis-i Vâlâ as it remained unresolved and survived during 1850s and 1860s.29

  • 30 I. MVL 269/10341/5 B 1269.

15In a similar case, a group of peasants from the Banca village of the Florina district in the province of Manastır sent in 1853 a petition to the Meclis-i Vâlâ claiming their possession rights on the village which, they claimed, was illegally seized (fuzuli zabt) by local notables who claimed that it was their own çiftlik as certified also by Evkâf-ı Hümâyun.30 It was first the local council that heard the case and the parties in dispute: 37 peasants from the village claimed that the village was a waqf çiftlik possessed by local notables who inherited it from their ancestors who got it themselves from the waqf of late Mehmed Paşa, the vezir-i azam; 34 other peasants from the same village claimed that land of the village in question was not mevkufe land and therefore the village was not a çiftlik since their own ancestors used to occupy and possess it as miri land; 21 other peasants claimed that it was the local notables who possessed the land in spite of the fact that its öşr and cizye were paid to the administration of the waqf of late Mehmed Paşa. In sum, the dispute was about the land category (miri or mülk or waqf) that would settle the possession rights of conflicting parties. The Meclis-i Vâlâ decided in such a context to appoint a müvella who would research the land categories, possession rights and offer a settlement to the litigation with the mütevelli or deputy of the waqf in question.

  • 31 Osman Nuri Ergin, (1995). Mecelle-i Umur-ı Belediye, vol.4, Istanbul, Istanbul Büyükşehir Belediyes (...)

16Such an era of “great transformation” brought about also some regulations of the public works; among them the regulation on the expropriation for the general interest (menafi-i umumiyye için iştira olunan arazi ve emlak hakkında nizamnâme) issued in 1856 introduced de jure the concept of general interest (or public utility) as opposed to the individual interests represented within miri, mülk and waqf property. According to the regulation, always in conformity with the Tanzimat policies, it was the local officials and councils that would represent general interest over individual ones, determine limits of individual properties (land, vineyard, arable field, house, etc.) and pursue the expropriation process for the general interest. The regulation entitled however the müvella as the official to be chosen by the local director of Evkaf and to be responsible for measurement and valuation of waqf properties in the provinces. As local councils’ administrative power was expanded in this context, the role of the müvella was quite limited to waqf properties.31

  • 32 Akgündüz, Mukayeseli…, pp. 683-715, “Tapu nizamnamesi”, Düstür, 1st Collection, vol.1, pp. 200-208; (...)
  • 33 İ.MMS 11/446/17 S 1274.

17On the other hand, the local council’s role on the administration of individual property regime (registration of certificates in the case of grant, auction, sale and inheritance) on miri lands was enhanced by the Land Code (Arâzi Kanunnâmesi) of 1858, the new regulation of 1859 on property certificates for miri lands, and the General Regulation of 1860 on Cadastral Survey (Tahrir-i Emlak ve Nüfus Nizamnâmesi).32 These regulations did not mention anymore the müvella. But he had acquired just before the Land Code, in 1857 an administrative role: to accompany, upon request, local governors, councils members, local kadi and naib in the auctioning process of miri land that became escheated and vacant.33

  • 34 Mülk-ü akar ve akar kabilinden olan emlak saire için mahkeme-i şeri’den verilecek ilam hakkında ni (...)
  • 35 Taşralarda bulunan musakkafat ve müstegallat için verilecek koçanlı ilm ü haberlere dair talimat ((...)

18As for property with mülk status, the Meclis-i Vala functioning as the high court of cassation, decided in 1862 that commercial mülk properties (mülk-ü akar) would get verdicts (ilam) from the shari’ courts34; as for property with waqf status, according to the regulations prepared by the Ministry of Evkaf in 1865 and 1870, registration and certificates for the waqf property would be organized either by the Ministry or by each waqf’s administration, depending on the nature of the waqf. Those regulations did not however mention anything about the appointment or the role of the müvella.35

  • 36 MVL 1017/12/4 Ca 1282; Yonca Köksal ve Davud Erkan, (2007). Sadrazam Kıbrıslı Mehmet Emin Paşa’nın (...)
  • 37 Huricihan İslamoğlu, (2011). “Property as a Contested Domain: Making of Individual Property in Law (...)
  • 38 A.MKT.MHM 371/69/23 Ş 1283.

19The continuity in the administrative differentiation of property categories, in spite of the general tendency to make their administration uniform, necessitated quite often the appointment of müvellas for the settlement of litigations that could not be resolved within the new judiciary configuration of the Tanzimat regime. The general problematic of litigations found in archival documents in which it is possible to observe and follow the functioning of müvella did not change indeed. As observed in the early years of the Tanzimat, peasants claimed their possession rights on lands they cultivated and houses in which they lived just as absentee notables claimed their exclusive property rights on lands and houses. Long lasting disputes between peasants working as sharecroppers in the çiftliks and çiftlik owners in Filat province (Yanya) and Niş led the Meclis-i Vâlâ to appoint müvellas in order not only to check property certificates and land limits but also to finalize land categories that would entitle property owners.36 From the administrative point of view, in dispute settlements, the müvellas were also to supplement or complete special regulatory commissions consisting of local groups (sharecroppers, peasants, farm managers, çiftlik holders, notables, etc.) and functioning under the supervision of imperial official(s) working to implement a local regulation on conflicting social and economic relations.37 In Filat, the müvella simultaneously supplemented the work of the regulatory commission38; in Niş, in spite of the work of the regulatory commission, which prepared a regulation as a way of locally regulating social and economic relations, the Meclis-i Vâlâ appointed a müvella to settle the yet unresolved land disputes.

  • 39 Kaya, “On the Çiftlik...”. op.cit.
  • 40 Hüseyin Akbulut, (2007). 1858 Arazi Kanunnamesi'nin Rumeli’de Uygulanması Açısından 1862-1866 Tarih (...)

20Still, the work of müvella and regulatory commissions were not in (positive or negative) correlation. If the litigation did not concern land status and respective possession rights but relations of production between sharecroppers and landowners, as was the case in Tırhala, the appointment of a müvella was out of the question.39 As the regulatory commission was working on the çiftlik regulation of Tırhala in the early 1860, the Meclis-i Vala appointed a müvella not to supplement the work of the commission but to determine the status and possession rights of a pasture found in the sub-county of Agrafa in Tırhala province.40

  • 41 Sırf mülk gayrimenkullere verilecek tapu senedatı hakkında nizamname (28 Receb 1291); Arazi-i mev (...)
  • 42 MVL 966/31/1280; Alp Yücel Kaya, (2012). “Les villes ottomanes sous tension fiscale: les enjeux de (...)
  • 43 MVL 964/26/1280.
  • 44 MVL 558/115/1284.

21As the provinces were full of such land and property disputes, the administration of mülk and waqf properties (especially in the registration of property certificates) was institutionalized, in addition to the administration of miri properties, within the central cadastral office (defterhâne-i amire) in 1874 and 1875.41 Regulation concerning the property certificates of mülk and waqf properties, as miri properties, gave the responsibility of registration to the local cadastral office and therefore to the local councils. Accordingly, it was under the supervision of the councils that property registers were to be prepared during cadaster or cadastral updating (yoklama) and property certificates were to be distributed and approved. Nevertheless, as the cadastre of the Empire followed a nonlinear path in a conflictual context of transforming property regime42, it was often problematic to provide written proofs to solve disputes over possessions. The old customary or shari’ methods which became marginalized in the context of the administrative and judicial transformation prevailed in such a context, such as local investigation, testimonies, witnesses and oaths43; but these methods necessitating local knowledge did nothing but promote local councils in the judicial scale.44

22In this context of judicial transformation, the müvella, despite the fact that his function was defined within the shari’ sphere, found himself redefined within the general administrative and judicial categories of the Tanzimat, that is the nizamiye sphere. It was in such a context that already functioning müvellas had a regulation of their own in 1874. He was an extraordinary and auxiliary actor of the nizâmiye court system in the adjudication of property disputes. Nevertheless, instead of an increase in the archival documents in which we can observe their action in the field, after the regulation, the müvella almost disappeared from the judiciary scene in the Ottoman provinces. Throughout our research on the functioning of the müvella in cases of property disputes, we have found only one archival document detailing his work in the field, though the document was based on his irregularity.

  • 45 C.ADL 3233/1292.

23In 1875, Mehmet Tevfik Efendi was appointed with a ferman-ı ali, as müvella to resolve the litigation between Selanikli Çorbacı Hacı Mustafa Efendi and İzmirli Yenişehirzade El-Hac Ahmed on “the wrongful seizure” (fuzuli zabt) of çiftliks found in Menemen.45 The müvella established on the spot a shari’ commission (meclis-i şeri’ şerife) composed of the cadastre scribe (tapu katibi), the court scribe (mahkeme katibi), the examiner of the court of first instance of the district (kaza meclis-i deavi mümeyyizi), a member of the administrative council of district (kaza meclis-i idare azası), the imam and the mayor (muhtar) of the village in which çiftliks were found. According to the preliminary investigations of the commission, both parties held in association (under contract) the çiftliks in question, but as El-Hac Ahmed was in Istanbul in 1872, Hacı Mustafa made a settlement with the brother of El-Hac Ahmed for the sale of the çiftliks, lands and real properties associated with them to him.

24The first transaction was held under the supervision of naib in the court of first instance and the second under the supervision of kaymakam in the administrative council of the district, both resulting in shari’ certificates (hüccet-i şer’iyye). The müvella searched, then, ways for a peaceful settlement (sulhen tesviye) between the representatives of the parties but he failed. He prepared therefore a shari’ verdict (ilâm-ı şer’i) inscribing that the possessor (zilyed) of the çiftliks in question was Hacı Mustafa, given the official property certificates held by him. Although the commission decided to visit the çiftliks to set their limits within the village on the one hand and to reattempt a peaceful settlement between the two parties on the other, the müvella went suddenly back to Istanbul. El-Hac Ahmed appealed the action of the müvella and the shari’ sentence that he issued in favor of Hacı Mustafa. His argument referred to the regulation of the office of the müvella promulgated in 1874: not only that the minutes that were to accompany the shari’ verdict were not prepared by the district council of Menemen; but also the verdict was not inscribed either in the registers of the court of first appeal (meclis-i deavi) or in those of the court of appeal (meclis-i temyiz) of Izmir; the procedure followed by the müvella, taking into consideration of the regulation of 1874, was therefore completely irregular. The kaymakam and the administrative council of Menemen confirmed the departure of the müvella and the claims of El-Hac Ahmed on the irregular procedure that he followed. Unfortunately, we do not know anything more about the fate of the litigation. Nevertheless, in spite of irregular functioning of the müvella office, the müvella worked within (or was limited with) the judicial and administrative boundaries defined by the Tanzimat governments. In other words, he was very well framed in the nizâmiye jurisdiction.

  • 46 İ.ŞD 41/2138/1295.
  • 47 Gürzumar and Gürzumar, Tapu…, pp. 137-138, 181-182.

25It is striking that the officials reporting the case of the müvella of Menemen did not problematize the granting of hüccets for the property transactions. In fact, the delivery of hüccets by the naibs, despite regulations against it, continued, as was the case in Menemen, well into the 1870s.46 Despite the fact that the administration of miri, mülk and waqf properties was centralized within the central cadastral office, the central administration could not stop the delivery of certificates by the shari’ courts and local officials. It decided in 1902 that certificates already delivered would be registered officially in the registers of defterhane but those to be delivered thereafter would not be considered as valid.47 Taking into consideration their power to issue property certificates, we found once again the müvella within the nizamiye sphere.

Who Would Hear Property Cases?

  • 48 See also articles 1192-1212, 1060-1112, 1256-1261, 1270-1291, Akgündüz, Mukayeseli…, pp. 566-575, 5 (...)

26As three major types of property (miri, mülk and waqf) started to converge to establish a uniform individual property regime to be entitled thereafter as emval-i gayrimenkule in the second half of the nineteenth century, the newly codified civil code Mecelle (1868-1876), in line with the liberal mindset of the Tanzimat, regulated the society around the free disposal and protection of individual property48:

Every one makes such dispositions of his mülk property, as he wishes. But if the right of another is attached to it, it prevents the owner from making a disposition, as independent owner, in respect of his mülk (Article 1192).

No one can be prevented for making such disposition as he likes in regard to his own mülk, unless there be excessive damage to another (article 1197).

Every one can take benefit from a thing, which is free to be used by the public, but on the condition that he does not cause damage to another (article 1254).

  • 49 The Mejelle, being an English Translation of Majallahel-Ahkam-ı-Adliya and A Complete Code of Islam (...)

One person cannot prevent another person from taking a thing which is free to be used by the public (article 1255).49

27The 1876 Constitution, similarly, introduced individual property as the basis of society:

  • 50 It was the Decree of Expropriation (istimlak kararnamesi) of 1879 that would define the exceptions (...)

Art 21. Property, real and personal, of lawful title, is guaranteed. There can be no dispossession, except on good public cause shown, and subject to the previous payment, according to law of the value of the property in question.50

  • 51 “The Ottoman Constitution...”, p. 381. For the Ottoman document see Düstur, 1st Collection, vol.4, (...)

Art. 22. The domicile is inviolable. The authorities cannot break into any dwelling except in cases prescribed by law.51

  • 52 Teşkilat-ı Mehakim Kanun Muvakkatı (27 C 1296)”, Düstur, 1st Collection, vol.4, pp. 236-237.
  • 53 Bingöl, Tanzimat..., p. 276; Ekinci, Tanzimat..., pp. 198-199.

28The Mecelle and the 1876 Constitution constituted important steps in establishing general and uniform administrative and judicial categories concerning an individual property regime. It was these general categories that would be applied in the judicial courts and administrative councils in forging the new property regime that would concern all the subjects of the Empire. The law of 1879 on the organization of nizamiye courts, in parallel with older Tanzimat legislation, gave to local courts starting from the district level the judicial power of hearing property cases (articles 8 to 13).52 In fact, despite new administrative and judicial reorganization and codification efforts in transferring property disputes into the nizamiye (administrative and judicial) sphere, the court in which property disputes would be heard was a common question in the Ottoman provinces throughout the 1870s.53 Would they be heard by the shari’ courts which continued to function in spite of their reduced jurisdiction or by the newly established nizamiye courts? The essential causes of such a judicial question were the gradual institutionalization of an individual property regime which amplified property disputes in the Ottoman provinces in general, and the incorporation of the administration of mülk and waqfs properties in particular into the central cadastral office (defterhâne-i amire) in 1874 and 1875, which used to be subject to the basic shari’ legislation of the shari’ courts.

29Given such a transitory period, the Ottoman administration issued, however, every year, from 1872 to 1879, decrees that mostly conflicted with one another, to resolve the question of the division of labor between shari’ and nizamiye courts:

    • 54 Y.EE 33/15/7 Z 1295; Y.EE 31/21/13 Safer 1293.

    According to an imperial decree dated 13 March 1872, in the resolution of property and border disputes that occurred between villages, there should be shari’ and civil investigation resulting in fixation of properties and therefore registration and authentication of shari’ property certificates54;

    • 55 Y.EE 33/15/7 Z 1295.

    A decree dated 4 April 1873 declared that cases of property disputes would be heard in the nizamiye courts of either first instance or appeal in the presence of cadastral officials and examined and judged according to the Land Code of 1858 and the regulation of 1859 on miri property certificates55;

    • 56 Y.EE 33/15/7 Z 1295.

    A decree dated 2 April 1875 pronounced that property cases should be heard in the nizamiye courts56;

    • 57 Araziye mütealik deavinin merci-i mehakim-i nizamiye olduğuna dair adliye nezaret-i celilesine mev (...)

    After a request came from the Governorship of Konya, the Ministry of Justice consulting the Council of State (Şura-ı Devlet) declared on 25 October 1875 that disputes related to the transfer of landed property should be heard in the nizamiye courts (of first instance and appeal) by means of examining its official registration and certificates57;

    • 58 Y.EE 31/21/13 Safer 1293.

    On 10 March 1876, based on requests from provinces on the use of shari’ property certificates in the resolution of property disputes between individual property claimers, the Council of State approved the use of shari’ investigation and shari’ property certificates on the basis of the imperial decree dated 13 March 187258;

    • 59 Y.EE 33/15/7 Z 1295.

    A mandate sent only to the province of Aydın dated 4 June 1876 declared that property cases should be examined and judged according to the shari’ procedure59;

    • 60 Arazi-i emiriyeye mütealik mesail ve deavinin hin-i ruiyyetinde defterhane memurlarıyla sairenin a (...)

    In 1877, a decision of the Council of State, sent to the provinces, stated that cadastral officials of the provincial administration were responsible for the implementation of the regulation of miri property certificates (1859) and therefore should be present during the sessions of miri property disputes in the nizamiye courts60;

    • 61 Y.EE 33/15/7 Z 1295.

    A decree dated 2 December 1878, after examining all these conflicting decrees and decisions (except that of 1877 published in the Düstur) on the examination and judgment of cases of property disputes, referring to the Land Code of 1858, noted that property disputes among villages and property disputes concerning properties having the status of real waqf (mevkufe-i sahiha, waqfs converted from mülk status), because they were based on the shari’ legislation according to respectively articles 126 and 4 of the Land Code, in addition to litigations to be handled by müvellas on the basis of the müvella regulation, should be treated according to the shari’ procedures and in the shari’ courts.61

    • 62 The Ministry of Justice also underlined that nizamiye courts functioned both as court of first inst (...)

    In a general correspondence written by the Ministry of Justice on 7 September 1879, it was underlined first that both the Land Code of 1858 and the Civil Code (Mecelle-i Ahkam-ı Adliye) were prepared by and composed of shari’ principles and used both by shari’ and nizamiye courts as a book of codes. Secondly, according to the distinction made in the article 4 of the Land Code between the real waqf (mevkufe-i sahiha) and unreal waqf (mevkufe-i gayr-i sahih), because real waqfs depend on shari’ jurisdiction, any dispute related to them, in addition to litigations to be handled by müvellas on the basis of the müvella regulation, should be heard in the shari’ courts; other disputes on properties of any other status should be heard in the nizamiye courts on the basis of the Land Code (Arazi Kanunnamesi), Civil Code (Mecelle-i Ahkâm-ı Adliye) and the Regulation on miri property certificates of 1859 (Tapu Nizamnâmesi).62

  • 63 Mehakim-i şer’iye ve nizamiyenin tefrik-i vezaifi hakkında irade-i seniyye (1 Safer 1305)”, Düstur(...)
  • 64 Mehakim-i şeriye ve nizamiyenin tefrik-i vezaifi hakkında nizamname (23 zilkade 1332)”, Karakoç, T (...)

30In 1887, as a result of the need for more clarification in the division of labor between the shari’ and nizamiye courts, an imperial decree was published.63 It did not include specifications either on the property disputes or on the müvella; but according to it, nizamiye courts would hear cases whose examination concerned commercial and penal law, cases concerning money, cases on material damages, tax farming and lease contracts. The regulation of 1914 revisited the division of labor between the shari’ and nizamiye courts. All cases concerning disposal, inheritance and division of immovable properties, money lending, material damages, tax-farming, concessions, contracts, commerce and crime were to be heard by the nizamiye courts on the basis of the Mecelle and other laws and regulations; all other cases falling into the realm of shari’ law cases concerning trustees, orphan’s properties, waqfs, movable and immovable probate inventories were to be heard by the shari’ courts.64

  • 65 Usul-ı Muhakemat-ı Hukukiyye Kanunu (2 Receb 1296)”, Düstur, 1st Collection, vol.4, pp. 257-318.
  • 66 Ibid., p. 271. Similarly, the article 59 of the same Code refers to the arbitration in the cases of (...)
  • 67 Akiba, “From Kadı to Naib…”.

31The above-mentioned regulations of 1878 and 1879 referred to the müvella regulation and categorized him in the shari’ realm. Nevertheless as the nizamiye realm expanded at the expense of the shari’ realm, the müvella found himself either more and more contextualized in the nizamiye jurisdiction or disappearing. Indeed, the Code of Civil Procedure of 1879, in spite of the 89th article of the 1876 Constitution, did not even mention his name.65 Nevertheless, the 63rd article was about the appointment of a müvella-like official, as explained in the müvella regulation: in case of litigations on movable and immovable properties, if survey and investigation of and some information from notables on disputed property were needed or if one of the parties asked, a member of the court was to be named as naib with the decree (kararname) of the same court. The naib with other experts was to make investigation and prepare a report to be presented to the disputing parties and to the court.66 The role of the naib looked like that of the müvella, but he was not an outsider agent in the locality intervening in the resolution of the litigation as the müvella did. He was in fact part of the local judicial hierarchy within the nizâmiye jurisdiction.67 Hence, as the naib appropriated functions of the müvella, ongoing nizamiye legislation appropriated de jure and de facto the office of the müvella.

Conclusion

  • 68 TFR.I.SL 14/1343/1321; TFR.I.ŞKT 48/4753/1322; DH.MKT 1059/14/1324; TFR.I.MN 182/18135/1326; DH.MUI (...)
  • 69 Emval-i gayri menkuleye vukubulan tecavüzatın idareten suret-i men’iyle ol babda ihtilafat mütehad (...)
  • 70 The Mecelle defined zilyed, the possessor, as the person actually occupying (vaz-ı yed) a thing or (...)

32The variables of the administrative and judiciary discussion changed in the first decades of the twentieth century. Not the division of labor between shari’ and nizamiye courts but the division of labor between administrative councils and judiciary courts was thereafter in question in the Ottoman capital and provinces. A decree issued in 1906 by the Council of State (Şura-ı Devlet), which had received increasingly high numbers of appeals on property cases from the provinces, in contrast to the Mecelle and other laws and regulations, prescribed that interventions into and seizure of property would be prohibited “administratively” (idareten) by controlling property certificates; possession would be restituted to the holder of the certificate. A party who could not present certificates would have to seek recourse to the court.68 The imperial decree prepared in 1909 by the Prime Ministry69, after a long series of correspondence about a property dispute in Görice district (Manastır), confirmed also that protection of property rights was not a judiciary but an “administrative affair”—any intervention into (müdâhalat) and/or violation (tecavüzat) of a building and landed property held with an imperial certificate (sened-i hâkani) would be above all prevented by the local administrative bodies. In case of an eventual intervention into a property, the examination of property certificates was essential and it was first the local council that would examine the affair in order to determine the possessor (zilyed)70. Only if any dispute on property persisted between two parties (whether holding property certificates or not) after administrative decision that the case would be brought by the claimants to the appropriate court and pursued on each court level until the final decision was reached.

  • 71 Emval-i gayri menkulenin tasarrufundan mütehadis ihtilafatın idareten halli hakkındaki 25 Temmuz 1 (...)
  • 72 Emval-i Gayrimenkulenin Tasarrufu Hakkında Kanun-ı Muvakkat”, Düstur, 2nd Collection, vol.5, pp. 2 (...)

33The legislative work carried out resulted also in a directive introduced on 20 April 1910 regarding the application of the decree of 1909.71 The codification of a law on immovable property was, however, concluded much later, in 1913. The Law on Disposal Rights of Immovable Property prescribed the absolute priority of property certificates in property disputes.72 In the provinces where the cadaster was accomplished, any dispute on a property whose certificate was not presented could not legally be heard in local courts.

  • 73 DH.MKT 2631/39/11 Ramazan 1326.
  • 74 The evolution of the justice of peace (sulh) in the adjudication of property disputes followed the (...)
  • 75 Feroz Ahmad, (1983). “The Agrarian Policy of the Young Turks 1908-1918”, in Jean-Louis Bacqué-Gramm (...)

34In fact, such a transfer of the first instance of property disputes from local courts to the administrative councils totally erased the traces of policy objectives that Tanzimat governments pursued in the administrative and judiciary sphere. It was in such a context of contradictory legislations that the governor of Manastır requested, on 9 September 1908, from the Ministry of Interior, clarification on the procedure to be followed in the cases of illegal occupation of pastures, forests and coppices. Was it local councils or local courts that were to hear property cases on them?73 In fact, taking into consideration the above-mentioned imperial decree of 1909 and the 89th article of the 1876 Constitution, he was perplexed about the action to be pursued in the province. If the Constitution did not acknowledge any other authority than local courts, how could the governor give the first instance to the administrative councils? The answer of the Ministry of Interior followed, however, the legislation that gave priority to the “administrative decisions” of local councils. In spite of the fact that the Constitution blocked the action of any judiciary authority other than the courts, except for arbitration and appointment of the müvella, regulations introduced after 1908 revolution acknowledged the power of the administrative authority over the judiciary authority. In such a context, the müvella who became contextualized within the nizamiye court system found himself completely disappearing after 1908.74 The question of the establishment of individual property regime in the late Ottoman Empire was resolved therefore in the local councils in favor of provincial notables who transformed themselves from notables into property holders at the expense of a peasantry of economically and politically fragile status. This was a direct reflection of economic and political conflicts into the administrative and judiciary realm.75

Notes

1 Article 85: Every affair shall be judged by the tribunal to which the affair belongs. Suits between private persons of the State are within the competence of the ordinary tribunals; Article 89: Besides the ordinary tribunals there cannot be instituted under any denomination whatever extraordinary tribunals or commissions for judging certain special affairs. However arbitration (tahkim) and the nomination of müvella (deputy judge) shall be permitted within the forms permitted by the law. See (1908). “The Ottoman Constitution, Promulgated the 7th Zilhidje, 1293 (11/23 December, 1876)”, The American Journal of International Law, 2(4), Supplement: Official Documents, p. 381. URL: https://archive.org/details/jstor-2212668. For the Ottoman document see Düstur, (H. 1299). 1st collection, vol.4, Istanbul, p. 15.

2 Ahmed Akgündüz, (1986). Mukayeseli İslam ve Osmanlı Hukuku Külliyatı, Diyarbakır, Dicle Üniversitesi Hukuk Fakültesi Yayınları, p. 767; Ahmet Akgündüz, (2011). İslam ve Osmanlı Hukuku Külliyatı I, Kamu Hukuku (Anayasa-İdare-Ceza-Usul-Vergi-Devletler Umumi), Istanbul, Osmanlı Araştırmaları Vakfı, pp. 834-835.

3 Düstur, 1st collection, vol.3, pp. 155-157; A.DVN.MKL 12/15/14 Ca 1291; Nuri Ülgenalp, (1949). “Evvelki Hukukumuzda Gayrimenkule Tasarruf Belgeleri”, Adalet Dergisi 6, pp. 868-867; Aristachi Bey (Grégoire), (1878). Doustour-i-Hamidié, Appendice à la législation ottomane, 5e partie contenant les lois et règlements promulguées à partir de l’année 1874-1878, Constantinople, Bureaux du Journal Thraki, pp. 69-71.

4 Savvas Pacha, (1902). Le tribunal musulman, Paris, Marchal et Billard Éditeurs; Sedat Bingöl, (2004). Tanzimat Devrinde Osmanlı’da Yargı Reformu, Nizamiyye Mahkemeleri’nin Kuruluşu ve İşleyişi 1840-1876, Eskişehir, Anadolu Üniversitesi Yayınları; June Akiba, (2005). “From Kadı to Naib: Reorganization of the Ottoman Sharia Judiciary in the Tanzimat Period”, in Colin Imber and Keiko Kiyotaki (eds.), Frontiers of Ottoman Studies: State, Province, and the West, vol.1, New York, I. B. Tauris, pp. 43-60; Iris Agmon, (2006). Family and Court: Legal Culture and Modernity in Late Ottoman Palestine, Syracuse, N.Y., Syracuse University Press; Huricihan İslamoğlu, (2007). Ottoman History as World History, Istanbul, the ISIS Press; Martha Mundy and Richard Saumarez Smith, (2007). Governing Property, Making the Modern State, Law, Administration and Production in Ottoman Syria, New York, I.B. Tauris; Fatmagül Demirel, (2008). Adliye Nezareti: Kuruluşu ve Faaliyetleri (1876-1914), Istanbul, Boğaziçi Üniversitesi Yayınevi; Hamiyet Sezer Feyzioğlu, (2010). Tanzimat Döneminde Kadılık Kurumu ve Şer’i Mahkemelerde Düzenlemeler, Istanbul, Kitabevi; Omri Paz, (2010). Crime, Criminals, and the Ottoman State: Anatolia between the late 1830s and the late 1860s, Unpublished PhD Dissertation, Tel Aviv University; Avi Rubin, (2011). Ottoman Nizamiye Courts: Law and Modernity, New York, Palgrave Macmillan.

5 Sava Paşa, (1955-1956). İslâm hukuku Nazariyatı Hakkında Bir Etüd, (1892 tarihli Fransızca aslından Türkçeye çeviren Baha Arıkan), Ankara, Yeni Matbaa; İsmail Hakkı Uzunçarşılı, (1965). Osmanlı Devletinin İlmiye Teşkilâtı, Ankara, Türk Tarih Kurumu Basımevi; Uriel Heyd, (1973). Studies in Old Ottoman Criminal Law, (ed. V. L. Ménage), Oxford, Oxford University; Joseph Schacht, (1982). An introduction to Islamic law, London, Oxford University Press; Wael B. Hallaq, (1997). A History of Islamic Legal Theories: an Introduction to Sunni Usul al-Fıqh, Cambridge, Cambridge University; Baber Johansen, (1999). Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh, Leiden, E. J. Brill; Ronald C. Jennings, (1999). Studies on Ottoman Social History in the Sixteenth and Seventeenth Centuries: Women, Zimmis and Sharia Courts in Kayseri, Cyprus and Trabzon, Istanbul, The Isis Press; Halil İnalcık, (2000). Osmanlıda Devlet, Hukuk, Adalet, Istanbul, Eren Yayıncılık ve Kitapçılık; Leslie Peirce, (2003). Morality Tales: Law and Gender in the Ottoman Court of Aintab, Berkeley, CA, University of California Press; Boğaç A. Ergene, (2003). Local Court, Provincial Society, and Justice in the Ottoman Empire: Legal Practice and Dispute Resolution in Çankırı and Kastamonu (1652-1744), Leiden, Brill; Mehmet Akif Aydın, (2005). Türk Hukuk Tarihi (5. Baskı), Istanbul, Hars Yayıncılık; Işık Tamdoğan, (2005). “Le nezir ou les relations entre les bandits, les nomades et l’État dans la Çukurova du XVIIIe siècle”, Sociétés rurales ottomanes, Cairo, IFAO, pp. 259-269. URL: https://www.academia.edu/35644138/Le_nezir_ou_les_relations_des_bandits_et_des_nomades_avec_l%C3%89tat_dans_la_%C3%87ukurova_du_XVIIIe_si%C3%A8cle; Işık Tamdoğan, (2007). “Atı alan Üsküdar’ı geçti”, Noémi Lévy et Alexandre Toumarkine (eds.) Osmanlı İmparatorluğu’nda Asayiş, Suç ve Ceza, Istanbul, Tarih Vakfı Yurt Yayınları, pp. 80-95. URL: https://www.academia.edu/35808383/At%C4%B1_alan_%C3%9Csk%C3%BCdar%C4%B1_ge%C3%A7ti_ya_da_18._Y%C3%BCzy%C4%B1lda_%C3%9Csk%C3%BCdarda_%C5%9Eiddet_ve_Hareketlilik_ili%C5%9Fkisi; Hülya Canbakal, (2007). Society and Politics in an Ottoman town: Ayntāb in the 17th century, Leiden, Brill; Işık Tamdoğan, (2008). “Sulh: Dispute Resolutions and the Eighteenth century Ottoman Cadi Courts of Üsküdar and Adana”, Islamic Law and Society 15(1), pp. 55-83. URL: https://www.academia.edu/35644124/Sulh_and_the_18_th_Century_Ottoman_Courts_of_%C3%9Csk%C3%BCdar_and_Adana; Rossitsa Gradeva, (2008). “On the Judicial Functions of Kadi Courts: Glimpses from Sofia in the Seventeenth Century”, in R. Gradeva, War and Peace in Rumeli, 15th to Beginning of 19th Century, Istanbul, The ISIS Press; Halil Cin ve Ahmed Akgündüz, (2011). Türk Hukuk Tarihi (5. Baskı), Istanbul, Osmanlı Araştırmaları Vakfı; Brill Encyclopedia of Islam, MEB Islam Ansiklopedisi, TDV İslam Ansiklopedisi.

6 One exception is Ekrem Buğra Ekinci (2004 and 2008) who either limits himself by summarizing the regulation of 1874 (Tanzimat ve Sonrası Osmanlı Mahkemeleri, Istanbul, Arı Sanat Yayınevi, pp. 265-266) or exposes the role of müvella as prescribed in the regulation in the absence of a historical context (Osmanlı Hukuku, Adalet ve Mülk, Istanbul, Arı Sanat Yayınevi, p. 371). The other is İlhami Yurdakul’s (2008). Osmanlı İlmiye Merkez Teşkilatı’nda Reform (1826-1876), Istanbul, İletişim, that just mentions his role in the registration of probate inventories of askeri estates (p. 129) and his appointment in the eighteenth century by Sheykh-ul-Islam in “some cases” to replace the local kadi (p. 138). Another source is the collection in which Ahmed Akgündüz presents transliteration of Ottoman books on private and family laws and that include information, though scanty, on müvella’s function on registration of probate inventories, Ahmed Akgündüz, (2012). İslam ve Osmanlı Hukuku Külliyatı II, Özel Hukuk I (Şahsın Hukuku-Aile Hukuku), Istanbul, Osmanlı Araştırmaları Vakfı, p. 323.

7 Yücel Terzibaşoğlu, (2003). Landlords, Nomads and Refugees: Struggles Over Land and Population Movements in North-Western Anatolia, 1877-1914, Unpublished PhD Dissertation, Birkbeck College, University of London; Yücel Terzibaşoğlu, (2006). “Eleni Hatun’un Zeytin Bahçeleri: 19. Yüzyılda Anadolu’da Mülkiyet Hakları Nasıl İnşa Edildi?” Tarih ve Toplum, Yeni Yaklaşımlar 4, pp. 121-147. URL: https://www.academia.edu/5336942/_Eleni_hatun_un_zeytin_bah%C3%A7eleri_19._y%C3%BCzy%C4%B1lda_Anadolu_da_m%C3%BClkiyet_haklar%C4%B1_nas%C4%B1l_in%C5%9Fa_edildi_Tarih_ve_Toplum_Yeni_Yakla%C5%9F%C4%B1mlar_G%C3%BCz_2006_say%C4%B1_4_pp._121-147.

8 Yuzo Nagata and Ferı̇dun M. Emecen, (2004). “Bir Ayanın Doğuşu: Karaosmanoğlu Hacı Mustafa Ağa’ya Ait Belgeler”, Belgeler, Türk Tarih Belgelerı̇ Dergisi 25(29), p. 48. URL: https://drive.google.com/open?id=0B7liBn5XLsAfQmlpZ3c4V1dISHc.

9 John C. Alexander, (1985). Brigandage and Public Order in the Morea 1685-1806, Athens, [s.n.], pp. 40-42, 118-119.

10 According to Alexander, he was part of both local and central power networks, Alexander, Brigandage…, p. 118.

11 Halil İnalcık, (1977). “Centralization and Decentralization in Ottoman Administration”, in Thomas Naff et Roger Owen (eds.), Studies in Eighteenth Century Islamic History, Carbondale, Southern Illinois University Press, p.41-43; İnalcık, Osmanlı’da Devlet..., p.106-112. From the mid-eighteenth century onwards, provincial Ahkam Defterleri collecting judicial appeals and complaints from provinces were full of appeals on property disputes and local judges’ abuses. It seems that müzevver hüccet, that is fictitious certification by naibs to enlarge disposal rights of possessor on the miri lands, were issued in such a way that they approached asymptotically to the mülk status found more and more application in the countryside. See Ahmet Kal’a et al., (1997). İstanbul Ahkam Defterleri: İstanbul Tarım Tarihi (1743-1757), Istanbul, Istanbul Büyükşehir Belediyesi Kültür İşleri Daire Başkanlığı Yayınları, p. 228, 231-232, 237, 349, 379, 382, 385; Huri İslamoğlu, (2001 ). “Modernities Compared: State Transformations and Constitutions of Property in the Qing and Ottoman Empire”, Journal of Early Modern Studies, Special Issue: Shared Histories of Modernity in China and the Ottoman Empire, 5:4, p. 374. DOI: 10.1163/157006501X00159.

12 Suraiya Faroqhi, (2009). Artisans of Empire Crafts and Craftspeople under the Ottomans, London, I.B. Tauris, p. 117.

13 Feridun Emecen, (2005). “Osmanlı Divanının Ana Defter Serileri: Ahkâm-ı Mîrî, Ahkâm-ı Kuyûd-ı Mühimme ve Ahkâm-ı Şikâyet”, Türkiye Araştırmaları Literatür Dergisi, 3(5), pp. 107-139. URL: http://www.talid.org/downloadPDF.aspx?filename=111.pdf; Nahide Şimşir, (1994). “Ahkam Defterleri’nin Tarihi Kıymeti ve 107 No’lu Anadolu Ahkam Defteri’ndeki İzmir ile İlgili Hükümler”, Tarih İncelemeleri Dergisi 9, pp. 357-390. URL: http://dergipark.gov.tr/download/article-file/58334.

14 Indeed, in case of litigation over the taxes of a waqf hamlet (mezra), the Divan-ı Hümayun concluded in the ahkam registers on appointment of müvella in the resolution of the conflict, Ahmet Kal’a et al., İstanbul ahkam defterleri, pp. 382-382.

15 In fact, both bases of power, farming out and property holding, did not exclude each other; they were both constituent of local power, but in pre-Tanzimat period the former dominated the latter. See Gilles Veinstein, (1975). “Âyân de la région d’Izmir et le commerce du Levant (deuxième moitié du XVIIIe siècle)”, REMM 20, pp. 131-147. DOI: 10.3406/remmm.1975.1332; Yuzo Nagata, (2005). “Ayan in Anatolia and the Balkans During the Eighteenth and Nineteenth Centuries: A Case Study of the Karaosmanoğlu Family”, in A. Anastasopoulos (ed.) Provincial Elites in the Ottoman Empire, Retymno, Crete University Press.

16 I.MVL 53/1015/6 Za 1259 (All the archival materials referred in this article are from Başbakanlık Osmanlı Arşivleri in Istanbul).

17 For a completely identical property litigation between peasants and absentee notables over çiftlik villages (Kortos, Nestore, Asfiloti and Nanoy) found in Yanya in 1846 and an identical settlement introduced by the work of the müvella appointed by the Meclis-i Vâlâ, see I.MVL 85/1712/25 Za 1262.

18 Bingöl, Tanzimat…, pp. 51-67.

19 Nizamat Defteri 39/37, p.18; İ. MSM 18/414/1257.

20 Astrid Meier, (2002). “Waqf Only in Name, Not in Essence, Early Tanzimat Reforms in the Province of Damascus”, in J. Hanssen, T. Philipp, S. Weber (eds.) The Empire in the City, Arab Provincial Capitals in the Late Ottoman Empire, Würzburg, Ergon. URL: http://menadoc.bibliothek.uni-halle.de/inhouse/content/structure/2369919.

21 Bingöl, Tanzimat…, pp. 66-67

22 Ibid., p. 67-76; Ekinci, Tanzimat…, p. 133-142; Musa Çadırcı, (2007). “Osmanlı İmparatorluğu’nda Eyalet ve Sancaklarda Meclislerin Oluşturulması (1840-1864)”, in Musa Çadırcı Tanzimat Sürecinde Türkiye, Ülke Yönetimi, Ankara, İmge Kitabevi, pp. 273-285.

23 Nizamat Defteri no 44/42, pp. 58-59; Jun Akiba, (2009). “The Local Councils as the Origins of the Parliamentary System in the Ottoman Empire”, in Sato Tsugitaka (ed.) Development of Parliamentarism in the Modern Islamic World, Tokyo, The Toyo Bunko, pp. 188-189.

24 Nizamat Defteri, 44/42, pp. 57-69.

25 Akgündüz, Mukayeseli..., p. 826.

26 Ibid., pp. 826, 843-844, 847, 873-874

27 Alp Yücel Kaya, (2009 ). “19. Yüzyıl Ortasında İzmir’de Mülkiyet, Emniyet ve Zabtiyeler”, in Noémi Levy, Nadir Özbek, Alexandre Toumarkine (eds.), Jandarma ve Polis: Fransız ve Osmanlı Tarihçiliğine Çapraz Bakışlar. Istanbul, Tarih Vakfı, pp. 188-211. URL: https://www.academia.edu/2004485/Kaya_A.Y._19._Y%C3%BCzy%C4%B1l_Ortas%C4%B1nda_%C4%B0zmir_de_M%C3%BClkiyet_Emniyet_ve_Zabtiyeler_Jandarma_ve_Polis_Frans%C4%B1z_ve_Osmanl%C4%B1_Tarih%C3%A7ili%C4%9Fine_%C3%87apraz_Bak%C4%B1%C5%9Flar_derl._No%C3%A9mi_Levy_Nadir_%C3%96zbek_Alexandre_Toumarkine_%C4%B0stanbul_Tarih_Vakf%C4%B1_Yay%C4%B1nlar%C4%B1_2009_ISBN_978-975-333-232-3_.

28 İbrahim Serbestoğlu, (2012). “Tanzimat Döneminde Canik Sancağı’nda Arazi ve Vergi Anlaşmazlığı”, in Mahmut Aydın, Bekir Şişman, Selahattin Özyurt, Hasan Atsız (eds.), Samsun Sempozyumu 13-16 Ekim 2011, Samsun, Samsun Valiliği, p. 3. URL: https://www.academia.edu/3106223/Tanzimat_D%C3%B6neminde_Canik_Sanca%C4%9F%C4%B1nda_Arazi_ve_Vergi_Anla%C5%9Fmazl%C4%B1%C4%9F%C4%B1.

29 Ibid., p. 6-12.

30 I. MVL 269/10341/5 B 1269.

31 Osman Nuri Ergin, (1995). Mecelle-i Umur-ı Belediye, vol.4, Istanbul, Istanbul Büyükşehir Belediyesi Kültür İşleri Daire Başkanlığı, pp. 1756-1757.

32 Akgündüz, Mukayeseli…, pp. 683-715, “Tapu nizamnamesi”, Düstür, 1st Collection, vol.1, pp. 200-208; Fikri Gürzumar and Tekin Gürzumar, (1960). Tapu ve Kadastro Külliyatı Muamele ve İzahatı Istanbul, Istiklal Matbaası, pp. 64-71; Abdurrahman Vefik [Sayın], (1999). Tekalif Kavaidi, Osmanlı Vergi Sistemi, Ankara, Maliye Bakanlığı, pp. 379-394.

33 İ.MMS 11/446/17 S 1274.

34 Mülk-ü akar ve akar kabilinden olan emlak saire için mahkeme-i şeri’den verilecek ilam hakkında nizamname, Düstur, 1st Collection, vol.4, pp. 90-92.

35 Taşralarda bulunan musakkafat ve müstegallat için verilecek koçanlı ilm ü haberlere dair talimat (25 ramazan 1281)”, Düstur, 1st Collection, vol.1, p.245-250; “Taşralarda bulunan musakkafat ve müstegallat için verilecek koçanlı ilm ü haberlerin tarifnamesi (25 ramazan 1281)”, Düstur, 1st Collection, vol.1, pp. 251-257; “Musakkafat ve Müstegillatın Muamelatı Hakkında Nizamnamedir (9 C 1287)”, Düstur, 1st Collection, vol.2, pp. 170-176.

36 MVL 1017/12/4 Ca 1282; Yonca Köksal ve Davud Erkan, (2007). Sadrazam Kıbrıslı Mehmet Emin Paşa’nın Rumeli Teftişi, Istanbul, Boğaziçi Üniversitesi Yayınları, pp. 211, 261, 315, 316, 474.

37 Huricihan İslamoğlu, (2011). “Property as a Contested Domain: Making of Individual Property in Law and through Land Registration in the Nineteenth-Century Ottoman Empire”, in E. Eldem and S. Petmezas (eds.), The Economic Development of Southeastern Europe in the 19th Century, Athens, Alpha Bank, pp. 350-370; Alp Yücel Kaya, (2015). “On the Çiftlik Regulation in Trikala (Ott. Tırhala) in the Mid-19th Century: Economists, Pashas, Governors, Çiftlik Holders, Subaşıs and Sharecroppers”, in Elias Kovolos (ed.), Ottoman Rural Societies and Economies, Halcyon Days in Crete VIII, Retymno, Crete University Press, pp. 333-381. URL: https://www.academia.edu/19719965/Kaya_A.Y._On_the_%C3%87iftlik_Regulation_in_T%C4%B1rhala_in_the_Mid-Nineteenth_Century_Economists_Pashas_Governors_%C3%87iftlik-holders_Suba%C5%9F%C4%B1s_and_Sharecroppers_in_Elias_Kolovos_ed._Ottoman_Rural_Societies_and_Economies_Halcyon_Days_in_Crete_VIIIth_Rethymnon_Crete_University_Press_2015.

38 A.MKT.MHM 371/69/23 Ş 1283.

39 Kaya, “On the Çiftlik...”. op.cit.

40 Hüseyin Akbulut, (2007). 1858 Arazi Kanunnamesi'nin Rumeli’de Uygulanması Açısından 1862-1866 Tarihli 84 Nolu Rumeli Ahkam Defterinin Değerlendirilmesi, Unpublished Master Thesis, Istanbul University, p. 82.

41 Sırf mülk gayrimenkullere verilecek tapu senedatı hakkında nizamname (28 Receb 1291); Arazi-i mevkufe senedatının defterhaneden verilmesi hakkında talimat (6 Receb 1292)”; “Dersaadet ve taşralarda bulunan musakkafat ve müstegallat-ı vakfiye senedatının Defterhane’den itası lazım geleceği cihetle ol babda icrası muktezi olan muameleyi mübeyyin talimatdır (4 Receb 1292)”, Düstur, 1st Collection, vol.3, pp. 447-462; Gürzumar and Gürzumar, Tapu…, pp. 172-180.

42 MVL 966/31/1280; Alp Yücel Kaya, (2012). “Les villes ottomanes sous tension fiscale: les enjeux de l’évaluation cadastrale au XIXe siècle”, in Florence Bourillon and Nadine Vivier (eds.), La mesure cadastrale, Estimer la valeur du foncier en Europe aux XIXe et XXe siècles, Rennes, Presses universitaires de Rennes.

43 MVL 964/26/1280.

44 MVL 558/115/1284.

45 C.ADL 3233/1292.

46 İ.ŞD 41/2138/1295.

47 Gürzumar and Gürzumar, Tapu…, pp. 137-138, 181-182.

48 See also articles 1192-1212, 1060-1112, 1256-1261, 1270-1291, Akgündüz, Mukayeseli…, pp. 566-575, 589-593, 600-605; for the discussion of the Mecelle in relationship with the civil courts, see Bingöl, Tanzimat…, pp. 220-225. For a discussion on the articles of Civil Code on property, see Sıddık Sami Onar, (1955). “Osmanlı İmparatorluğu’nda İslam Hukukunun Bir Kısmının Codification’u” Hukuk Fakültesi Mecmuası, 20(1-4), pp. 74-79.

49 The Mejelle, being an English Translation of Majallahel-Ahkam-ı-Adliya and A Complete Code of Islamic Civil Law, (translated bu C.R. Tyser. B.A.L. Presiden District Court of Kyrenia), Lahore, the Book House, [n.d.], pp. 194, 205.

50 It was the Decree of Expropriation (istimlak kararnamesi) of 1879 that would define the exceptions in which dispossession could take place according to the general interest (or public utility), see Ergin, Mecelle-i..., pp. 1758-1752. Local councils’ role in the process of expropriation, therefore in the definition of public interest and the limitation of individual interests or properties, continued as it was defined in the expropriation regulation of 1856.

51 “The Ottoman Constitution...”, p. 381. For the Ottoman document see Düstur, 1st Collection, vol.4, Istanbul, p. 15.

52 Teşkilat-ı Mehakim Kanun Muvakkatı (27 C 1296)”, Düstur, 1st Collection, vol.4, pp. 236-237.

53 Bingöl, Tanzimat..., p. 276; Ekinci, Tanzimat..., pp. 198-199.

54 Y.EE 33/15/7 Z 1295; Y.EE 31/21/13 Safer 1293.

55 Y.EE 33/15/7 Z 1295.

56 Y.EE 33/15/7 Z 1295.

57 Araziye mütealik deavinin merci-i mehakim-i nizamiye olduğuna dair adliye nezaret-i celilesine mevruf müzakere-i samiye (25 Ramazan 1292)”, Düstur, 1st Collection, vol.3, pp. 165-166.

58 Y.EE 31/21/13 Safer 1293.

59 Y.EE 33/15/7 Z 1295.

60 Arazi-i emiriyeye mütealik mesail ve deavinin hin-i ruiyyetinde defterhane memurlarıyla sairenin ashab-ı arazi hükümde hazır bulundurulması hakkında tezkere-i samiye sureti, (26 Zilhice 1293)”, Düstur, 1st Collection, vol.4, p. 441.

61 Y.EE 33/15/7 Z 1295.

62 The Ministry of Justice also underlined that nizamiye courts functioned both as court of first instance and as court of appeal, the judicial examination had two levels occasioning possibilities of adjustment and correction; all sorts of property disputes, except those falling under shari’ jurisdiction, should be examined and judged therefore by them on the basis of the Land Code and the Civil Code in order to assure and protect rights of property owners and to eliminate difficulties arising between the local population and the judicial procedure. “Evkaf-ı sahihadan olan arazi ve musakkafat ve müstegallat ile teferruatı münazaatından maada arazi davalarıyla hudud ve sınır münazaatının mehakim-i nizamiyede ruiyyeti hakkında fi 20 Ramazan sene 1296 ve fi 25 Ağostos sene 1295 Adliye Nezareti’nden yazılan muharrerat-ı umumiyye”, Düstur, 1st Collection, vol.4, pp. 362-363. See also I.MMS 63/2976/19 Ra 1296; Sarkis Karakoç, (1925). Tahşiyeli Kavanin, vol.1, Istanbul, Kitabhane-i Cihan, pp. 9-10.

63 Mehakim-i şer’iye ve nizamiyenin tefrik-i vezaifi hakkında irade-i seniyye (1 Safer 1305)”, Düstur, 1st Collection, vol.5, pp. 1055-1058.

64 Mehakim-i şeriye ve nizamiyenin tefrik-i vezaifi hakkında nizamname (23 zilkade 1332)”, Karakoç, Tahşiyeli..., pp. 21-22.

65 Usul-ı Muhakemat-ı Hukukiyye Kanunu (2 Receb 1296)”, Düstur, 1st Collection, vol.4, pp. 257-318.

66 Ibid., p. 271. Similarly, the article 59 of the same Code refers to the arbitration in the cases of insurmountable disputes on the line of the chapter of the Mecelle concerning the arbitrage. Ibid., p. 270.

67 Akiba, “From Kadı to Naib…”.

68 TFR.I.SL 14/1343/1321; TFR.I.ŞKT 48/4753/1322; DH.MKT 1059/14/1324; TFR.I.MN 182/18135/1326; DH.MUI 345/17/1327. In 1900, the central administration preferred a judiciary solution in property disputes instead of an administrative solution, see DH.MKT 2422/34/1318.

69 Emval-i gayri menkuleye vukubulan tecavüzatın idareten suret-i men’iyle ol babda ihtilafat mütehadisenin meclis-i idarece halli hakkında irade-i seniyye”, Düstur, 2nd Collection, vol.1, pp. 428-433; Karakoç, Tahşiyeli…, pp. 388-392.

70 The Mecelle defined zilyed, the possessor, as the person actually occupying (vaz-ı yed) a thing or disposing of a thing under the disposal of proprietor (article 1679), Akgündüz, Mukayeseli…, p. 741.

71 Emval-i gayri menkulenin tasarrufundan mütehadis ihtilafatın idareten halli hakkındaki 25 Temmuz 1325 tarihili irade-i seniye ile mütehiz kararın suret-i tatbikiyesini mübeyyin talimat (7 Nisan 1326)”, Karakoç, Tahşiyeli…, pp. 394-395. For a discussion see Terzibaşoğlu, Landlords…, p. 180.

72 Emval-i Gayrimenkulenin Tasarrufu Hakkında Kanun-ı Muvakkat”, Düstur, 2nd Collection, vol.5, pp. 239-243; Karakoç, Tahşiyeli…, pp. 479-497.

73 DH.MKT 2631/39/11 Ramazan 1326.

74 The evolution of the justice of peace (sulh) in the adjudication of property disputes followed the same pattern: the shari’ procedures on peace settlement were redefined and contextualized throughout the Tanzimat period in the nizamiye procedures; nonetheless, the Law of Judges of Peace of 1913 (“Sulh Hakimleri Hakkında Kanun-ı Muvakkat”, Düstur, 2nd Collection, vol.5, pp. 322-348; Karakoç, Tahşiyeli..., pp. 541-609) confirmed well the political atmosphere of the decade by privileging the administrative procedures over the judiciary procedures, see Alp Yücel Kaya, (forthcoming, 2018). “The Justice of Peace in the Adjudication of Property Disputes in the Ottoman Countryside (1839-1914)”, in Huricihan İslamoğlu and Safa Saraçoğlu (eds.), Justice, Statecraft and Law: A New Ottoman Legal History.

75 Feroz Ahmad, (1983). “The Agrarian Policy of the Young Turks 1908-1918”, in Jean-Louis Bacqué-Grammont and Paul Dumont (eds.), Économie et Sociétés dans l’Empire ottoman (fin du XVIIIe-début du XXe siècle), Paris, CNRS, pp. 275-288.

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Ege University, Izmir

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