Christian and Jewish "waqf" in Palestine during the Late Ottoman PeriodAuthor(s): Ron ShahamReviewed work(s):Source: Bulletin of the School of Oriental and African Studies, University of London, Vol. 54,No. 3 (1991), pp. 460-472Published by: Cambridge University Press on behalf of School of Oriental and African StudiesStable URL: http://www.jstor.org/stable/619055 .Accessed: 07/12/2011 08:45

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CHRISTIAN AND JEWISH WAQF IN PALESTINE DURING THE LATE OTTOMAN PERIOD1

By RON SHAHAM

1. Introduction This article deals with Palestinian Christians and Jews who availed them-

selves of the Muslim pious endowment institution (waqf, pl. awqaf) during the late Ottoman period. In Judaism and Christianity we find pious endowment institutions: the Jewish 'Hekdesh' and the Christian 'Piae Causae'. In both religions there exists an ancient tradition of endowments for purposes which are quite similar to those of the waqf.2 In spite of this, Christians and Jews in Muslim territories availed themselves of the waqf from the Middle Ages until the end of the Ottoman state.3 This is an example of the use by minorities of the majority's legal system.

The present article has two objectives: first, to delineate characteristic aspects of such usage: the nature of the founders, types of property involved, beneficiaries of the waqfand methods of administration; second, to analyse the reasoning which motivated members of the religious minorities to establish awqaf in Muslim shar'a courts. It will be argued that Christians and Jews established awqdf because of legal and administrative compulsion, and also because of the practical advantages offered by this institution.

Approximately fifty Arabic-language documents located in the court archive records (sijill) of Jaffa and Nazareth constitute the main source of the study. It appears that these are the full total of documents relating to the minorities' waqf during the period under consideration, which are located in the shar['a courts archives of those two cities. Most of the documents date from the last two decades of the nineteenth century and the first decade of the twentieth century. Most concern Christians, so that the conclusions relate mainly to them. There is not sufficient data about the Jews from which to draw final conclusions. Nevertheless, it may be assumed that the conclusions about the Christians are also applicable to the Jews.

I should like to thank Professor A. Layish, who devotedly instructed me through the several stages of the research for this paper, and Professor Z. Falk, Professor H. Lazarus-Yafeh and Dr. M. Hoexter for their help.

2 Concerning the Jewish pious endowment see M. Elon, 'Hekdesh', Encyclopaedia Judaica, Vol. 8 (Jerusalem, 1971), 279-87; concerning the Christian pious endowment see G. Baer, 'The Muslim waqf and similar institutions in other civilizations ', a paper submitted to the International Seminar on Social and Economic Aspects of the Muslim Waqf, The Hebrew University of Jerusalem, 24-28 June 1979 (hereafter Baer, the Muslim waqf); W. R. Jones,' Pious endowments in medieval Christianity and Islam', Diogenes, 109, 1980, 23-36.

3 A. N. Polak, Toldot ha- Yehasim ha-Qarqa'iyyim be-Mizrayim Suriya ve-Erez Yisrael be-Sof Yemey ha-Beynayim (Jerusalem, 1940), 46-7; E. Ashtor, Toldot ha-Yehudim be-Mizrayim uve- Suriya, Vol. 2 (Jerusalem, 1951), 229-32; U. Heyd, Ottoman documents on Palestine 1552-1615 (Oxford, 1960), 169; H. Gerber, Yehudey ha-Imperiya ha-'Otmanit ba-Meot 16-17. Kalkala ve-Hevra (Jerusalem, 1983), 33 (hereafter Gerber, Jews of the Ottoman empire); idem,' Ha-Yehudim u-Mosad ha-Heqdesh ha-Muslemi (Waqf) ba-Imperiya ha-'Otmanit', Sefunot, Vol. 17 (Jerusalem, 1973), 105-31 (hereafter Gerber, Jews and the waqJ); A. Cohen, Jewish life under Islam. Jerusalem in the sixteenth century (Cambridge Mass., 1984), p. 62, n. 10, pp. 76-86, 210-13; J. Barnai, Yehudey Erez Yisrael ba-Mea ha-18 ba-Hasut Pqidey Qushta (Jerusalem, 1982), 156, 186, 256 (hereafter Barnai, Jews of Palestine); 0. Peri.' Tmurot Politiyyot ve-Hashlakhoteyhen ke-Gormim be-Yissud Awqaf bi-Yerushalayim shel Sof ha-Mea ha-18' Kathedra, 21, 1981, 83; A. Shpizen, 'ha-Ishshiyyut ha-Mishpatit ve-Heqdeshim Yehudiyyim bi-Yerushalayim shel Sof ha-Mea ha-19', Kathedra, 19, 1981, 73-82.

CHRISTIAN AND JEWISH WAQF

2. The founders The endowment documents (waqfiyya, pl. waqfiyyat)4 in the courts do not

provide us with many details about the founders. Most often we find only the founder's name and his place of residence. In the waqfiyyat of Jaffa we find sixteen endowments for religious-public purpose (waqf khayri) as well as six endowments for the founder's family members' benefit (waqf ahl-). Among the twenty-two founders in Jaffa, only four were Christian clergy: the Armenian monk Atnas al-Zaytunali from the Mar-Ya'qub monastery, the Greek Orthodox monk Qrilus b. Qastadhi, the head of the Greek monastery in Ramla, the priest Ibrahim al-Buri, and the monk Astifanus Farah, apparently the head of the Greek Catholic community in Jaffa. From other sources we have biographical details about only three founders, two of them Jews and one a Christian: the first Jew was Joseph Niego, an Austrian citizen, who was the director of the agricultural school 'Mikve-Yisrael' between the years 1891- 1902 and, during the same period, was one of the Jewish community's leaders.5 He endowed a house in Jaffa for the establishment of a hospital which would serve the Jewish community of the region. The second Jew was Maymon Haim 'Amiel, a resident of Jerusalem from the Maghribi community, who established a family waqf. The 'Amiel family is known as a family of long-standing in Jerusalem. Two of its members, the above-mentioned Maymon Haim and his brother Joseph, had come to Palestine at the beginning of the 1870s, and were well known for their leadership, generosity and support of their community's institutions in Jerusalem.6 The Christian founder about whom we have some data was the Kavaleer Iskandar b. Salvador b. 'Awd, a founder of family waqf, who was a Maronite with British citizenship and the representative of the Cook Steamship company. He built the first street in modern Jaffa, named after him, and also donated large sums of money for the building of the Maronite church in that city.7 It is interesting to note that two persons who were known in the community as philanthropists established awqaf for their family's benefit and not for the welfare of the public. Presumably they had ways other than the waqf to donate to public institutions. In Nazareth (including one case in Haifa) we find fourteen founders, all of them of public waqf. The waqfiyyat do not contain any data about their profession or social status. Yet the Protestant priest As'ad Mansur mentions some founders in his list of Nazareth's prominent families.8

The Christian founders in Jaffa and Nazareth represent personal affiliations with the long-established churches operating in Palestine, namely, the Greek Orthodox, Greek Catholic, Roman Catholic and Armenian. The Maronite church, which appeared in Jaffa in the 1840s,9 is also represented. A noteworthy fact is the considerable number of Protestant founders in Nazareth, while in Jaffa they are not represented at all among the founders. Protestants appeared in Jaffa and Nazareth in the beginning of the 1850s as a result of the improvement in the state authorities' attitude towards them.°1 It seems that their

4 See Appendix-Documents index. 5 J. Shapira, Mea Shana Migve-Yisrael (Tel Aviv, 1970), 161-3. 6 R. Kark, 'Ha-Ma'aravim- Rishoney ha-Yerushalmim bi-Vniyyat Shkhuna mi-Huz

la-Homa', Peamim, 21, 1984, 30; J. Barnai, 'Ha-'Eda ha-Ma'aravit bi-Yerushalayim 1830-1918' (unpublished M.A. thesis, Jerusalem, 1971), 9, 32, 34-5, 45, 49-50.

7 H. Ram, 'Ha-Yishuv ha-Yehudi be-Yafo le-min ha-Mahazit ha-Shniyya shel ha-Meah ha-18 'ad la-Shanim ha-Rishonot shel Shilton ha-Mandat ha-Briti ' (unpublished Ph.D thesis, Ramat gan, 1982), 135; R. Rubin, 'Ha-'Edot ha-Nozriyyot be-Yafo u-Mosdoteyhen', Qardom, 15, 1981, 80-1.

8A. Mansur, Ta'rTkh al-Nasira min Aqdam Azmdniha ila Ayydmina al-Hidira (Cairo, 1923), 209, 233, 237, 241, 251.

9 R. Kark, Jaffa: a city in evolution 1799-1917 (Jerusalem, 1990), 56, 163-7 (hereafter Kark, Jaffa).

100. Stendel, Nazeret be-'avar uva-Hove (Jerusalem, 1966), 11; Mansur, 85, 177-80; Kark, Jaffa, 26.

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establishment in Nazareth was achieved satisfactorily, which explains the fact that they have a considerable representation among the founders.1

3. The waqf property The waqfproperty in Nazareth was urban in nature: houses and apartments,

shops and warehouses in the market place. This fact indicates that the Christians of Nazareth were merchants and owners of urban real-estate. In Jaffa the situation was quite similar, but in contrast to Nazareth, we find there the endowment of rural property, such as orchards and vineyards, in addition to urban properties. Perhaps this reflects the expansion of the agricultural gardens and orchards which began in the second half of the nineteenth century.12 The endowment of rural property testifies to the Christians' involvement in the process of agricultural development. Jews, too, endowed the same kinds of property as those endowed by Christians. It should be noted that the family waqf's property in Jaffa was much more valuable than the public waqfs property in the same city. A small number of founders endowed a considerable property in favour of their descendants: Maymon 'Amiel, for example, endowed his share (75%) in twenty-eight shops located in Jaffa's market, two houses located above those shops and also a small piece of land in Jerusalem. The Kavaleer Iskandar b. 'Awd endowed seventeen shops in Jaffa's market, houses which were located above the shops and also nine warehouses in the market place. The relative wealth of the family waqf's property can be explained by the fact that it was wealthy people who chose to endow this kind of waqf. Another explanation is that people preferred endowing most of their property to their descendants over financial support of the community. Our waqfiyyat also prove that monks and priests were sometimes owners of considerable private prop- erty. The Armenian monk al-Zaytunall, for instance, endowed nine shops in the market. Monks were allowed to hold their private property during their lifetime, and after their death this property reverted to the church.13

4. The beneficiaries of the waqf (i) The public waqf

The main group of beneficiaries in Jaffa (in the first series) were the monks, and after them came the poor. In Nazareth we do not find awqdf in favour of monks at all. All the awqdf in Nazareth were in favour of the poor. Care for the Christian poor of Nazareth is mentioned by Mansur. He notes that people from the Roman Catholic community were concerned by the economic distress in their community and they initiated communal (t 'ifiyya) awqdf for this purpose. He also notes that, contrary to the Muslims who did not have associations which cared for the poor, the Roman Catholic monks fed their community poor every day. This fact, states Mansur, was an act of charity ('amal khayrl), which reflected the community's reliance on its own resources.'4 The data suggest that

qa.ds did not always implement the shar'T legislation, which prohibits the establishment of awqdf regarded as a good deed (qurba) by a minority religion but not by Islam.15 For instance, in some awqaf in Jaffa the qa.ds permitted exclusive endowments for the benefit of the monks.

" Mansuir (p. 198) notes that the Protestant community in Nazareth was economically active, and that its waqfwas the most prosperous in the town. Yet we must consider his remark with some scepticism, since he himself was a Protestant clergyman.

12 Kark, Jaffa, 70-2, 239 ff. '3 A. Granovsky, Ha-Mishtar ha-Qarqa'i be-Erez Yisrael (Tel Aviv, 1949), 152 (hereafter of

Granovsky, The agrarian system). 14 Mansur, 196-7. 15 M. Qadri Basha, Kitab Qanun al-'Adl wal-Insaf lil-Qada 'ala Mushkilat al-Awqaf (Cairo,

1902), 25-7, arts. 87-96.

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CHRISTIAN AND JEWISH WAQF

In almost all the waqfiyydt of Jaffa there exists a gradual pattern in the series of beneficiaries. This is to say, in the first series the group of beneficiaries is restricted and well defined, but in subsequent series the beneficiaries' groups expand and are less defined. The waqfiyya of the Armenian monk al-Zaytunali may serve as an example: the first series of beneficiaries is the Armenian monks (fuqard' ruhbdn) in the Mar-Ya'qub monastery in Jerusalem. The second series (after the extinction of the beneficiaries in the first series) is the poor (fuqard) of the Armenian community in Jerusalem. The third series is the Armenian poor wherever they exist. The fourth series is the poor and wretched (masdkmn) in Jerusalem. The fifth and last series is the poor and wretched wherever they exist. In the waqfiyydt of Nazareth we mostly find only one group of beneficiaries. The family waqfalso included a public purpose, but this only after the extinction of all beneficiaries from among the family members. Placing a public purpose when there are no more beneficiaries in a family waqf is essential to the maintaining of the eternal character of the institution. A family waqf which converts to a public waqfafter the extinction of all the family members is called 'cancelled' (mundaras), and that is because its primary purpose has been cancelled. The founders of family waqf, like the founders of public waqf, were concerned primarily with their own community's needs. They stipulated as beneficiaries their community's poor, its monks and the community's needs in general.

Most of the waqfiyydt contain the 'Ten Conditions ',16 which are typical of the Muslim's awqdf: for instance, the income of the waqf must be used first for the renovation of the property and in its maintenance, and only the residue of the income will be distributed among the beneficiaries; it is forbidden to lease the property in one term for a period longer than four years; the waqf's administrator (mutawalli) is free to include or exclude beneficiaries, etc. In the waqf of Israffl we find an interesting condition, namely, that the monks who would inhabit the endowed house are permitted by the shar'a court to recite the 'New Testament' while staying at the house.

In Jaffa the founder almost always belonged to the same religious com- munity as the beneficiaries which were stipulated in his waqf. In Nazareth the situation was quite similar, although we find there relatively more cases where the founder stipulated as beneficiaries in his waqf the poor of other Christian communities. This may indicate that in Nazareth there was more mobility among Christians between the several churches of the town.

(ii) The family waqf The waqf of al-Kassar exemplifies the pattern of the entitlement apportion-

ment among the family members. In this waqf the founder decided that in the first series the sole beneficiaries would be his four daughters equally as long as they lived (muddat haydtihinna la ghayr) and not including their children (dun awladihinna). After the daughters' extinction their share would pass to the founder's son. If the son had already died, only male sons [the founder's grandsons] (ild awlad waladihi al-madhkur dun al-indth) would enjoy the estate equally. After the extinction of the founder's male grandsons the entitlement would pass to their male descendants only (awlad waladihi al-madhkur al-dhukur min al-dhukur), and so forth ('ala ansalihim wa-a'qdbihim al-dhukur min al- dhukur). After the extinction of all the male descendants the entitlement would pass to the female descendants of the founder's grandsons (... 'ali al-mawjuid min al-indth min dhuriyyat awlad ibn al-wdqif), and after them to their

16 0. Hilmi, The laws of Evqaf(Nicosia, 1922), chs. 6-17.

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RON SHAHAM

descendants, males and females, according to the shar'T law of succession ... ('aid awlddihim wa-ansalihim dhukuran wa-indthan bayn al-jamT' bil-far.da al-

shar'iyya). It is of interest to compare the characteristics of the entitlement apportion-

ment pattern in our awqdf to those of ordinary jHanafi awqdf, namely, awqdf endowed by Muslims. From A. Layish's article on the Hanafi family waqf'7 it seems that the data's similarity is remarkable. This can be proved by noting some of the main motivations which appear in our awqif, and which Layish characterized as typical of the HanafT waqf: the founder is the sole beneficiary during his lifetime. This practice is anchored in the Hanafi school (in five of our six awqdf); the wife does not enjoy the entitlement, and if she does so she is given a share equivalent to her share according to the shar'T law of succession (one example is al-'Isa waqf, where the wife enjoys only if the founder dies childless, and then she gets one-fourth of the entitlement, which is identical to her share in the estate in the absence of sons); the founder's children enjoy the entitlement directly after him. This is intended to enlarge their share, which is smaller in ordinary inheritance (in five of our six awqdf); when sons exist, daughters do not enjoy exclusively all the waqfs entitlement (one exception is the waqf of al-Kassar mentioned above, where his four daughters enjoy exclusively, and their share returns to the son only after their extinction); care for the orphan grandson-this is one of the prominent motivations of the Hanafi waqf, since the orphan grandson is deprived of the estate by his paternal uncles according to the inheritance law. This care is manifested in the representation principle (tanzil), which does not exist in the inheritance law, namely, that every descendant takes his father's share after the father's extinction. This is an attempt to deviate from the extended-family perception and to introduce instead the nuclear-family perception (for example the 'Amiel waqf); the founder's brothers usually do not enjoy (one exception is al-'Isa waqf, where his brothers enjoy only if the dedicator dies childless); the females in every series do not bequeath their share in the entitlement to their descendants (five of the six awqdf) and sometimes they are deprived totally from entitlement (for example the awqdf of Ibn al-Wahba and Dabas). Here the waqf is used to circumvent the inheritance law; the pattern of the entitlement apportionment in every series is shar'T, namely, female gets half the male's share (in three awqdf, including the 'Amiel waqf, although according to the Jewish law the daughter has no share alongside a son!);'8 'maintenance out of the estate' to the founder's wife and daughters. This institution does not exist in Islamic law. In the waqf, however, we find the customary manifestation of this institution (for example Ibn Wahbah's waqf).

The above-mentioned similarity permits us to assume that Christians and Jews acted in accordance with the same considerations that made Muslims establish family awqdf. But first we should verify that these specific Christians and Jews were really the initiators of the pattern of the entitlement apportion- ment in their awqdf. What made the Christian, for instance, find it necessary to give his wife her share according to the Muslim inheritance law, or to give the daughter half of the son's share? It is high likely that in some of the cases the Christian or Jewish founder did not pay any attention at all to the pattern of the

'7 A. Layish,' The family waqf and the shari'a law of succession', in G. Baer and G. Gilbar (ed.), Social and economic aspects of the Muslim waqf (forthcoming). 18 Sh. Shilo, 'Succession', in M. Elon, The principles of Jewish law (Jerusalem, 1975), 445-53. 'Amiel waqf seems to improve the status of females as compared to their status according to the Jewish inheritance law. The same motivation was traced in Istanbul. See Gerber, Jews and the waqf, 127.

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entitlement apportionment that was set in his waqf, and was satisfied by the very act of endowing his property as a Muslim waqf. Perhaps in those instances it was the qa.dis themselves who formulated the waqfiyya in the pattern that was so familiar to them, the pattern typical of Muslim founders.'9

5. The waqf's administration (i) The public waqf

Most of the public waqf's mutawallls in the first series were clergy, i.e. patriarchs of the several churches, the heads of monasteries or monks. In four cases, including Niego's waqf, the mutawalli was the founder himself or another family member. In Nazareth all the mutawallls without exception were clergy. They were given the title of' administrator and inspector of the church's awqaf for the poor' (al-mutawall wa'l-nazir 'ala awqaffuqara' ta'ifa/kanlsa . . ). It is reasonable to assume that these mutawallls were the heads of the divergent churches of Nazareth. This may be concluded from the case of the Protestant priest Mansur. This person, who appears three times in the documents as the mutawall and ndzir of the Protestant awqdffor the poor, was also the author of the work on Nazareth's history mentioned above. In his book, Mansur states that he served as the head of the local Protestant church from 1905, when he replaced in this position the priest Khalil al-Jamal.20 Al-Jamal himself also appears in some documents in the same position of mutawall and ndzir of the Protestant awqaf for the poor. In the case of the Jewish woman from Haifa, Rahil b. Susan, the administrator of her waqf was a man with the title 'representative of the awqif' (wakll awqaf) of the synagogue, which was mentioned in her waqfiyya. It seems that this man served in a public position in the Jewish community in Haifa. In the family awqaf too, when the entitlement passed to public purposes,21 the administration also passed to religious func- tionaries: the spiritual head of the community and the administrator of the awqaf for the mosques of Jerusalem (mutawall al-awqaf al-sharlfa).

In a form similar to the dividing of beneficiaries in the public waqf of Jaffa into series, the administrators of these awqaf are also organized in series. The al-Zaytunali waqf, which was mentioned above, also serves here as an example: the mutawalli in the first series is the Armenian patriarch of Jerusalem. The mutawallh in the second series (after the extinction of the first) is the patriarch of the Armenian monastery's awqdf. The mutawall in the third series (when the entitlement will pass to the Armenian poor) will be the most able (al-arshadfa'l- arshad) of those poor to administer the awqaf. The mutawall in the fourth series (when the beneficiaries will be the poor wherever they exist) will be nominated by the Muslim qa.di of Jerusalem, which will serve then as the waqf's nazir. In Niego's waqf too there is an interesting pattern of administration: the founder stipulated that he would serve as mutawalli as long as he served as director of the ' Mikve-Yisrael' school. In the second series the mutawalli would be the next director of that school. The founder stipulated that an administrative body be formed, and that in addition to himself this was to include the two chief Jewish Rabbis of Jerusalem and the Chief Jewish Rabbi of France. This body would function as long as its members served in their posts. Afterwards their own successors were to replace them.

Characteristic of the waqfiyydt of Jaffa is the founders' stipulation that the Muslim qa.dd, as ndzir in the third or fourth series, was to nominate the waqf's mutawalli. We have seen this already in Al-Zaytunali waqf, and it exists in the

19 For further discussion of this point see below, pp. [16-17]. 20 Mansur, 102, 198, 214, 260-1. 21 See above, pp. 463.

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awqaf of Ibn Khashdur, Ibn Qastadhi, al-Buri and Dabas as well. This reflects the view that when the right to entitlement exceeds the lines of the specific Christian community and includes the surrounding society, the qa.d, as the representative of the state juridical authority, is the fittest of all to nominate the mutawallT.

The documents attest to some administrative problems in connexion to those awqdf. In 1868 the shar'a court of Jaffa heard a suit of the Chief Rabbi of Jerusalem, the mutawalll of the Jewish awqdf (awqdf al- Yahiid). His representa- tive in the court claimed that the waqf owned a certain room located in the' Big Jewish House' (Ddr al- Yahuid al-KabTra).22 After the facts were established the qa.d sided with the Rabbi and ordered the Muslim defendant to withdraw his ownership claims concerning this property.

In conclusion, it can be stated that the religious minorities had organized public waqf institutions. Those awqdf encompassed considerable property and were mostly administered by the heads of the religious establishment.23 From other sources, like Mansur,24 we know that in actual practice this was also the administration pattern. The public waqfs administration by the church is a reflection of a long tradition, from the early days of Christianity in Rome.25 In Jewish history, too, public awqdf were always administered by the community authorities. Gil describes in detail in his research of the Cairo Geniza, how the Jewish community's awqdf in Egypt were administered by the communal court, the Nagid (from the thirteenth century onwards) and the Parnasim.26

(ii) The family waqf The 'Amiel waqf represents the administration pattern in the family waqf:

the founder placed himself in the position of mutawallT as long as he lived. After him the mutawall was to be his grandson, who was also the exclusive beneficiary in the second series. After the grandson's extinction the mutawalli would be the most able of his descendants. Unlike public waqf, family waqf was administered by the founder and his agnatic descendants who thus retained the control of the agnatic family, which was one economic unit, over its property, thereby minimizing external intrusion into their waqfs affairs.

There were some suits concerning the administration of family waqf. Those suits included the asking of the qadT's permission to lease the property for a long period, because it needed renovation ('Amiel waqf);27 a demand to fire a mutawalll accused of embezzlement (khiydna) (al-'Isa waqf);28 a demand to declare the waqfinvalid and to dismantle it and distribute its estates among the beneficiaries, because part of the property endowed included movables (money and merchandise), which are considered not legal for endowment by Islamic law, and the other part included miri lands, which belong to the state and are forbidden for endowment without the state's permission (tamlTk sultani) (Dabas waqf).29

22 Ddr al- Yahud was the name of the courtyard (including buildings) which had been endowed as a waqfin 1820 by Y. Ajiman, the banker of the head of the Yenicheries in Istanbul, in favour of the Sefaradi Kolel in Jerusalem, for hospitality to Jewish immigrants arriving in Palestine. See Kark, Jaffa, 56, 181; A. Yizhaqi, 'Atarim be-Yafo', Qardom, 15, 1981, 82. It is difficult to affirm with certainty the exact legal status of Ddr al- Yahud. The author has not traced the waqfiyya itself, if it exists at all.

23 See also G. Young, Corps de droit ottoman, Vol. 6 (Oxford, 1905), 18. 24 Mansir, 196-8. 25 Baer, The Muslim waqf. 26 M. Gil, Documents of the Jewish pious foundations from the Cairo Geniza (Leiden, 1976), 37. 27 Jaffa's Shar'a court (hereafter sijill), Vol. 63 (hujaj no. 69), p. 36; Vol. 76, pp. 15-16. 28 Sijill, Vol. 60, p. 97; Vol. 71, pp. 4, 96. 29 Sijill, Vol. 29, pp. 46-8, 76-82; Vol. 33, pp. 6-11; Vol. 43, p. 232. Concerning the tamlIk sultdnT

it is worth noting that during the Ottoman period people used to endow miri lands without asking

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The Christian beneficiaries showed a great deal of proficiency in the Muslim waqfs law in the course of their suits. It seems that they received some kind of legal counselling. The plaintiffs in the above-mentioned al-'Isa and Dabas awqdf based their claims against the mutawalll on the Hanafi legal sources.30 The qddis themselves exercized their jurisdiction naturally according to the sharT'a.

It appears that the religious minorities' awqif confronted the same problems that beset Muslim awqif. Proficiency in the laws of waqf was required of the minorities if they were to obtain maximal economic advantages from this institution.31

6. Motives of endowment by Christians and Jews The motives discussed below are not specified in the waqfiyya itself. In this

respect the scholar can only speculate, and he is not standing on solid factual

ground. The religious minorities of the Ottoman state enjoyed judicial auton- omy in some of the Personal Status affairs, mainly marriage and divorce. In those matters the laws of the diverse communities were applied in their communal courts. In other matters of Personal Status, such as inheritance and guardianship, the judicial authority was invested in the shart'a courts, these being the state's courts, and the communal courts had concurrent jurisdiction.32 Matters of pious endowment were not included in communal judicial auto- nomy. Christians and Jews were obliged to establish awqf in the sharT'a courts. Those courts had an exclusive jurisdiction in matters of establishment and internal administration of waqf.33 Moreover, it is reasonable to assume that following the 1858 Ottoman Land Law, registration in the newly-founded Land Register, ensuring an endowment's legality and preventing ownership claims by strangers, could only be carried out after registration in a sharl'a court as a Muslim waqf.34 It seems that the administrative changes introduced by the law and the subsequent improvement in the state's image, provide the main explanation for the minorities' use of the waqf. This conclusion is substantiated by the fact that the sijills, including that of Jerusalem, reflect a considerable rise

the competent authority's consent, and even without notifying it. If afterwards the question of the waqf's legality arose, the founders resorted to the religious court, which dealt with the matter without regard for the secular laws. See A. Layish, ' The Muslim waqf in Israel', Asian and African Studies, 2, 1966, 46 (hereafter Layish,' The Muslim waqf'); idem,' The Druze testamentary waqf', Studia Islamica, 71, 1990, 139.

30 The Christian litigants quoted for instance from Kh. al-Ramli, Kitdb al-FatdwT al-Khayriyya li-Naf al-Bariyya; I. al-Tarabulsi, Kitdb al-Is'df fi Ahkdm al-Awqdf; I. al-Kurduri, al-Fatdw' al-Bazdziyya; M. Ibn 'Abidin, Hashiyat Radd al-Muhtar 'ala al-Durr al-Mukhtdr Sharh TanwTr al- Absdrfi Fiqh Madhhab Abl Hanifa al-Nu'man. 31 Gerber, Jews and the waqf, 111.

32 E. Vitta, The conflict of laws in matters of personal status in Palestine (Tel Aviv, 1947), 3, 145, 176.

33 F. M. Goadby, International and inter-Religious private law in Palestine (Tel Aviv, 1935), 128; Layish, The Muslim waqf, 47; Gerber, Jews of the Ottoman Empire, 32-3; Vitta, 145, 176.

34 According to Professor Falk (interview, 28.8.1985) the British Mandatory legislation testifies to the legal situation prevailing during the Ottoman period. Art. 2 of the 'Civil and Religious Courts (Jurisdiction) Ordinance, 1925' enabled the transformation of awqdf, constituted by non- Muslims before the sharr'a courts prior to the promulgation of the 'Palestine Order in Council, 1922 ', into charitable trusts (under the provisions of the ' Charitable Trusts Ordinance, 1924 '), that is to say, into civil charitable endowment institutions, constituted before a civil court. This ordinance was aimed to correct the injustice, which existed during the Ottoman period, when non- Muslims were forced to establish awqdf before the shar'a courts. Concerning this legislation see R. H. Drayton, The laws of Palestine, Vol. 1 (London, 1934), ch. 14, pp. 112-27 and ch. 18, pp. 141-2. Art. 3 of the above-mentioned ' Civil and Religious ... Ordinance' left to the shar'a courts parallel jurisdiction (when the two parties agreed to submit the question at issue to these courts) in matters concerning the constitution or validity of awqdf, constituted by non-Muslims before those courts prior to the 'Palestine Order in Council', and not transformed into charitable trusts according to the above-mentioned ordinance of 1924. This amendment too testifies to the legal situation prevailing during the Ottoman period.

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RON SHAHAM

in the number of new foundations by Christians and Jews during the last decades of the nineteenth century.35

In addition to the legal or administrative compulsion, these founders were also aware of some practical advantages associated with the use of the waqf institution. Two reasons why Muslims themselves established awqdf were the security provided for the founder's property and the preclusion of its confisca- tion by the state's authorities. These reasons were especially significant to Christians and Jews who, as minorities, naturally felt less secure.36 Studies mention that Jews availed themselves of the waqf in order to prevent the confiscation of their property by their creditors. Childless Jews in particular established public awqdf prior to their death in order to circumvent the legal status of the state's treasury (bayt al-mdl) as residuary heir.37 In general, it was hoped that the integrity of property endowed as a Muslim waqfin sharl'a court (a state court) would be honoured by the authorities. This objective was expressed also in the designation of public Muslim aims.38 It was hoped that Muslims would not damage awqdf whose entitlement would in the end reach Muslim hands. Thus, for example, the founder 'Amiel named as the last public beneficiary in his waqf the mosques of Jerusalem (al-Haram al-Sharlf); the Christians al-Kassar, Ibn Wahba, al-'Isa and Ibn 'Awd named as public beneficiaries the poor, the sick, widows and orphans, wherever they might exist (which meant also the Muslim poor). It is worth remembering that in those series of public beneficiaries the awqdf were to be administered by the qadds,39 who were expected as representatives of the state to maintain the awqdf under their control. In addition, the founders introduced conditions which were in accord with Muslim religious and moral norms: in Dabas waqf it was affirmed that beneficiaries who would engage in adultery, usury taking, wine drinking and gambling would be deprived of their share in the entitlement.40 Actually waqfproperty was not better secured than other kinds of property. Awqdf of all sorts, including those endowed by the Sultan, suffered from continuing attacks both from the authorities and from other powerful individuals.41 In spite of those attacks on and confiscations of waqf property, the founders still viewed the waqf as the best way to safeguard their property. Even the 'ulamd', which suffered most from attacks on public awqdf, of which they were the main beneficiaries, continued to endow the estates which they had gathered during their lifetime.42

Another possible motive for establishing waqf was tax exemption. The waqf property was all mulk (private) property before its endowment, and was theoretically not exempted from taxes according to Ottoman law.43 One

35 Shpizen, 75 (especially, n. 10), 80-2. 36 Polak, 46, 73; Cohen, 210-11; M. Doukhan, Diney Qarqa'ot be-Erez Yisrael (Jerusalem, 1925),

33; G. Baer, Studies in the social history of modern Egypt (Chicago, 1969), 79 (hereafter Baer, Social history).

37 Concerning confiscation by creditors see Gerber, Jews of the Ottoman Empire, 138; Ashtor, 231; Baer, Social history, 79. Concerning the childless Jews see Barnai, Jews of Palestine, 271-4; Ashtor, 232. Compare to the same motivation existing in areas governed by the Maliki school, by using the testamentary waqf; A. Layish, 'The Maliki family waqfaccording to wills and waqfiyyt ', BSOAS, XLVI, 1, 1983, 1-3, (hereafter Layish, ' The Maliki waqf '). In the case of'Amiel the founder probably feared the confiscation of his property after his death, because his only heir, his grandson, we still a minor (interview with Mr. E. 'Amiel, the present administrator of the waqf, 18.12.85).

38 Cohen, 211-2. 39 See above, 465. 40 Sijill, Vol. no. not identified (1280 A.H./A.D. 1864), 32-3. All these acts are prohibited in Islam.

Some of them, like adultery (zina) and wine drinking (sharb khamr), are included among hudud allah. Others, like usury (riba) taking illegal taxes (mukus) and gambling (maysir), are considered as ethical prohibitions.

41 Polak, 46-7, 54, 73; Ashtor, 230; Peri, 78-81. 42 Peri, 82. 43 F. Goadby and M. Doukhan, The land law of Palestine (Tel Aviv, 1935), 361, 364.

468

CHRISTIAN AND JEWISH WAQF

exception was small pieces of land (less than a thousand square meters), adjacent to houses in towns and villages, which were bordered by walls or fences.44 This exception is significant, since most of the property endowed in our documents was of this sort so that it was free from tax while being mulk. Furthermore, in practice, the Ottoman government frequently did not collect taxes from mulk and waqf property in the period under consideration in this research.45 There is some circumstantial evidence to that effect. Mansur remarks that Sulayman Basha, the Ottoman wall of Sidon from 1804, enacted laws in order to improve the mechanism of tax collection, since the sums collected were low because of the large number of waqf lands.46 Kark, who relies on a report from 1895 by Murad, the German deputy-consul in Jaffa, tells us that in the 1860s private initiators managed, by bribing the Ottoman officials, to register miri lands as their mulk or waqf. Their aim was to become exempt from the 'ushr tax, and the authorities did not succeed in reversing this process.47 This last piece of evidence points to the possibility that some of the waqf lands in Jaffa were miri lands, which were endowed as part of the fraud mentioned above. It is difficult to reach any final conclusions in this respect, but the author's impression is that the motivation to gain exemption from taxes through the waqf, if it existed at all, was secondary, since mulk property was actually free from taxes regardless of its endowment.

The motives of ensuring the property's security and its exemption from taxes, discussed above, were applicable to both public and family waqf. Nevertheless, there existed unique considerations for each type of waqf. There is reason to believe that public waqfin particular represented a solution to certain problems facing religious institutions in Palestine. Public organizations (includ- ing churches), not recognized by Ottoman law as 'Legal Persons ',48 could not register property in their names, and had to find legal fictions in order to secure their ownership rights. One device used to circumvent this prohibition was to register the property as a waqf, and the public institution as its beneficiary. Niego's waqf can serve as an example in this respect. The house, which was endowed by him as his private property, was actually the property of the Jewish community of Jaffa, bought with a donation from the baroness, Klara Hirsh.49 Niego acted in the court as the community's representative and not as a private person, although this fact is not mentioned in the waqfiyya. The administrative body, which was fixed in this waqf, also reflects the community's involvement in the waqf's administration. This device was also used by Jewish public institu- tions in Jerusalem.50 It is possible that heads of churches, especially of those lacking formal status, such as the Protestant church, used this device, although it was also possible to register church property in the names of the heads of the churches as private persons.51 It is not the author's intention to suggest that the foregoing motive should be considered as the sole explanation of the phenomenon of the minorities' public waqf. The main motive for this kind of waqf was the desire to perform charitable acts, which is rooted both in

44 ibid., 361. 45 loc. cit.; Doukhan, 180; A. Granovsky, Shittat ha-Missim be-Erez Yisrael (Jerusalem, 1933),

126 (hereafter Granovsky, Tax system). 46 Mansur, 64. 47 Kark, Jaffa, 247-8. 48 Doukhan, 69-70. 49 M. Eliav, Ba-Hasut Mamlekhet Ostriya- Mivhar Te'udot me-Arkhiyyon ha-Qonsuliya ha-Ostrit

be-Yerushalayim 1849-1917 (Jerusalem, 1986), 293-4, 407. 50 Shpizen, 73-82. 51 Granovsky, The agrarian system, 152; Qanun al-Ahwal al-Shakhsiyya lil-Ta'ifa al-Rum Katullk

al-Malakiyyafi Isra'Tl (n.d.), p. 52, art. 241; see one example of registering the church property in the name of the Coptic cardinal: sijill, Vol. 66, p. 77.

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RON SHAHAM

Christianity and Judaism. This incentive was personal and private, and not necessarily initiated by the church apparatus. Within Christianity, an endow- ment for religious purposes represents the desire to gain a private reward.52 Using the waqffor this purpose was merely redirecting this religious drive to the formal institutional channel which existed in the Ottoman empire.

It is far more difficult to determine the minorities' motive for establishing a family waqfas we have to take into consideration additional mechanisms, such as the laws of inheritance, wills and gifts. Studies on the Muslim family waqf established the fact that it enabled the founder to assure that the property which had been accumulated by him during his lifetime would not be divided or sold after his death.53 The waqf also enabled the founder to circumvent the inheritance law, which was not always in harmony with the social reality, by determining the beneficiaries, the entitlement apportionment between them, and the pattern of the entitlement transmission according to the beneficiaries' series. As was indicated above, the minorities consciously adopted some patterns of entitlement apportionment which were typical of Muslim waqf, and aimed at circumventing the inheritance law. The desire to keep the property in the hands of the agnatic family, which is one of the basic principles of the patrilineal social pattern, existed also among non-Muslims, who adapted themselves to this same pattern.

In Christianity, which is not a legalistic religion like Judaism and Islam, religious law does not cover all of life's domains. The canon law of the Catholic church, for instance, does not include specific laws of inheritance. In this matter, Christians throughout history have adopted the civil laws practised in their

place of abode. Thus in Palestine, Christians applied Islamic law-the state's law. Only in matters such as marriage and divorce, in which there was a unique Christian perception, did the church put its own law into practice. The application of Islamic law was convenient in that it prevented clashes with the Muslim authorities. Goadby indicates that members of the Greek Orthodox community were inclined to use Islamic law because their church law, which derived from the Byzantine source, was written in Greek and difficult to

operate. The Armenians had a solid tradition of using the state's law whenever it was morally acceptable. The Greek Catholics also appear to have practised the Muslim law.54 As a rule it can be said that Palestinian Christians in the nineteenth century divided their inheritances according to the prescriptions of the shart'a.55 This fact explains the similarity between their attitude towards the

family waqf and the attitude of the Muslim majority. The same motivation of circumventing the inheritance law, which was typical of Muslims, was also

present among Christians. The gift and the will were not a satisfactory means of circumventing inheritance limitations. The gift forced the owner to give up the ownership of his property during his lifetime, a step which was not always desired, while the will did not ensure keeping the property undivided because the beneficiaries were entitled to full ownership, as in regular inheritance.56 As a result the waqf was used.

52 Gil, 91; Jones, 26-32. 53 Ashtor, 231; Gerber, Jews and the waqf, 113; A. Layish, 'The Maliki waqf ', 30-1. 54 Goadby, 134-5. 55 loc. cit.; there is enough evidence even from the British Mandatory period to this effect. See

Tiberias's sijill, watha'iq, Vol. 3 (1920-22), case no. 56, p. 44 and case no. 17, p. 141. Even Jews applied to the shar'a court, asking for inheritance decrees. See ibid., case 43, p. 80; case 61, p.93; case 80, p. 108.

56 Jews did not have the option to avail themselves of the will in order to circumvent the inheritance law, because the Jewish law recognizes only a will of a person who is' ill and confined to bed' (mattenat shekhiv me-ra3. A will in the common use of the term is in Judaism a gift of the healthy (mattenat bari), and therefore it is practically a regular gift (during the giver's lifetime), and

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CHRISTIAN AND JEWISH WAQF

7. Conclusion Christians and Jews established awqdf first as a result of necessity, and

secondly in order to achieve certain advantages. The similarity between the pious endowment institutions in the three monotheist religions, a point emphasized by Baer, facilitated the minorities' adoption of the Muslim institution.

The necessity to endow before the Muslim court contradicted the traditional judicial sovereignty of the Jewish communal court. Indeed, the sources testify to agitation among the Rabbis and arguments for and against a Jew's right to establish waqf before the Muslim court. Some of the Rabbis denied this right, arguing that the waqf violated Jewish inheritance law. On the other hand, other Rabbis claimed that Jewish waqf, established in a gentile court, is valid, on the grounds that the law of the land is binding (dina de-malchuta dina).57 As for the Christians, using the waqf was not considered to be a religious problem in that Christianity allowed many subjects to be judged according to civil laws. With the approach of the modern epoch in Europe, there emerged a tendency to subject the Christian pious endowment institution to the state's civil law. Religious pious endowments were absorbed into the framework of the civil institution called the 'charitable trust'. The ownership rights of the church became institutionalized within the framework of state law rather than canon law.58 This fact is important in explaining the Palestinian Christian awqdf. The Muslim law, that is, Ottoman state law, was the equivalent of the various state laws in Europe, which replaced the pious endowment of church law.

The adoption of the waqf by the Ottoman empire's minorities can be viewed in the wider context of minorities which used the legal institutions and terms of the ruling majority.59 The minorities concerned were rooted in the social, agrarian and judicial systems of the Muslim majority. Therefore, it is not surprising that the family waqfinstitution in particular, which originally existed neither in Judaism nor in Christianity, was adopted by these minorities. It represented just one of the numerous forms of cultural interaction extant in a mixed society.

APPENDIX

Documents Index

The waqfs name Reference in the sijill Year(A.H./A.D.)

Public Waqf Jews-Jaffa

1. al-Yahud Vol. 27, pp. 173-174 1286/1868 2. Joseph Niego Vol. 71, p. 126, case 143 1317/1899

Christians-Jaffa 3. Jiryas al-Badiri Vol. 5, p. 84 1240/1825

not a will (after his death). See Sh. Shilo, 'Wills', in M. Elon (ed.), The principles of Jewish law (Jerusalem, 1975), 453-64; as for the Christians, they availed themselves of the will to a certain extent, as in the case of the Maronite community in Lebanon. This community was obliged to apply the Muslim inheritance law for about ninety years. As a result those Maronites used to circumvent this restriction by applying the Christian religious will, which accords total freedom to will up to two-thirds of the estate. See I. Aouad, Le droit prive de Maronites au temps des Emirs Chihab (1697-1841) (Paris, 1933), 197, 200, 244.

57 Gerber, Jews and the waqf, 112-15; Ashtor, 232; Barnai, Jews of Palestine, 273-4. 58 Baer, The Muslim Waqf, 21, 29, 31. 59 cf. S. D. Goitein, A Mediterranean society, Vol. 3 (Berkeley, 1978) 142.

471

CHRISTIAN AND JEWISH WAQF

4. Israfil (Catholic) 5. Yusuf b. Hana (Catholic) 6 Tanus b. Minas (Armenian) 7. Jiryas Tilmisani 8. Spanish citizens 9. Atnas al-Zaytunall

10. Yusuf & Hana (Latin) 11. Ya'qub b. Khashdur 12. M. Jadar (Greek Catholic) 13. Qrilus b. Qastadhi (Greek) 14. Helena al-Dabas (Greek) 15. Ya'qub al-Dabas (Greek) 16. Ibrahim al-Buri (Greek) 17. Astifanus Farah (Greek Cath)

Christians-Nazareth 18. Yusuf b. Stephan (Greek) 19. Yusuf abu Sana (Latin) 20. Hana Asila (Catholic) 21. 'Abd Allah al-Matar 22. Jamila al-Shufani (Maronite) 23. Salih al-Jasar (Protestant) 24. Mikha'il al-Matar 25. Faris b. Antun (Maronite) 26. Ibrahim al-Zahr (Catholic) 27. Tanus (Latin) 28. Jamila al-Nasr (Greek) 29. Wakim 'Imran (Protestant) 30. Mikha'i1 al-Matar

Family Waqf Jews-Jaffa 31. Maymon 'Amiel

Christians-Jaffa 32. Antun al-Kassar (Latin) 32. Tanus b. Wahba (Maronite) 34. Iskandar b. 'Awd 35. Mikha'i1 al-'Isa (Greek) 36. Dabas brothers

Vol. 10, p. 63 Vol. 12, p. 13 Vol. 10, p. 107 Vol. 26, p. 67 Vol. 29, p. 348 Vol. 43, p. 109 Vol. 46, p. 123 Vol. 46, p. 115 Vol. 47, p. 92 Vol. 47, p. 100 Vol. 47, p. 294 Vol. 47, p. 293 Vol. 50, p. 4, case 8 Vol. 65, p. 224

Vol. 5, p. 77, case 184 Vol. 11, p. 96 case 20 Vol. 15, p. 138 Vol. 17, p. 118 Vol. 17, p. 76 Vol. 17, p. 93 Vol. 16, p. 187, case 34 Vol. 16, p. 278, case 45 Vol. ?, p. 172 Vol. 21, p. 45 Vol. 20, p. 190, case 20 Vol. 29, p. 88 Vol. 29, p. 84

Vol. 47, p. 276

Vol. 43, p. 155 Vol. 52, p. 68 Vol. 72, p. 31, case 40 Vol. 47, p. 256 Vol. 29, pp. 46-48

1247/1832 1251/1835 1255/1839 1283/1867 1290/1873 1295/1878 1301/1884 1301/1884 1303/1886 1303/1886 1305/1888 1305/1888 1306/1889 1314/1897

1305/1888 1311/1893 1317/1900 1318/1901 1318/1901 1318/1901 1319/1901 1321/1903 1322/1904 1324/1906 1327/1909 1334/1915 1334/1915

1305/1888

1296/1879 1309/1891 1316/1898 1305/1888 1275/1859

472