Editor: Martin Bunton, University of Victoria, Canada
Author:n/a ISBN: (10) n/a Published: 2010 Paper: Printed on acid free paper Binding: Library bindings with gilt finish See sample pages:
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A great many books have been written on the subject of Jewish land-settlement and the Arabs, or the land question in Palestine, but rarely does one have the opportunity to access the original documents among which the research has been made. This new collection of original documents from Cambridge Archive Editions allows scholars to form their own opinions on this most controversial, and critical, series of events.
For the purpose of studying the laws and legislation that made up Palestine’s land regime, an important starting point is recognition of the various and overlapping administrative structures that mediated and defined the rules governing property rights. At the beginning of the twentieth century Palestine was part of the Ottoman Empire, a world empire that had ruled the Arab lands of the Middle East for 400 years through a system of administrative districts known as vilayets and sanjaks. The defeat of the Ottoman Empire in World War One precipitated the negotiation of new political arrangements, primarily between Britain and France, which not only defined the borders of the new state of Palestine, but also set the stage for a new set of administrative patterns. Though effectively run as a crown colony in the interwar period, Palestine was recognized by the newly formed League of Nations as an ‘A’ mandate: technically, this meant that it was to be administered like a trust by Britain until ready for self-government. But it was also subject to special stipulations recognizing Britain’s earlier promise in 1917 to facilitate the establishment of a ‘Jewish national home’. Each of these overlapping designations –sanjak, colony, home, state – played key roles in the transformation of Palestine’s land regime between the years 1917 and 1948.
Some of these reports (for example, those authored by Sir John Hope-Simpson, Lewis French, and C.F. Strickland) are frequently cited in the extant literature, but exist only in government archives. Other reports (for example, those of the chief land adviser to the Palestine government, Sir Ernest Dowson) are less well known than they ought to be, both for their significance to the interwar history of Palestine and, as importantly, to the comparative study of colonial administrations in the twentieth century. Reproducing these reports here in their original draft form, and where possible including marginalia and copy edits, sheds useful light on the contentious inner workings of the policy-making process in a colonial context.
Section 1:Corps de Droit Ottoman: Recueil des Codes, Lois, Règlements, Ordonnances et Actes les plus importants du Droit Intérieur, et d’Études sur le Droit Coutumier de l’Empire Ottoman, Vol. VI, George Young.
Section 2: OttomanLand Laws containing the OttomanLand Code and later legislation affecting land, with notes and an appendix of Cyprus laws and rules relating to land, Stanley Fisher, with annotated notes by Sir E. Dowson.
Section 3: The OttomanLand Laws, with a commentary on the OttomanLand Code of 7th Ramadan 1274, R.C. Tute.
Section 4: Translation of Turkish Tapu Laws made from French translation contained in George Young’s “Corps de Droit Ottoman” and revised after comparison with the original Turkish text.
Section 5:Translations of the Ottoman Constitutional Laws and the WilayetAdministrative Law, the Municipal Law and Various Other Laws.
STANDARD REFERENCE WORKS, PART II
The Land Law of Palestine, F.M. Goadby and M. Doukhan.
STANDARD REFERENCE WORKS, PART III
Section 1: The Civil Law of Palestine and Trans-Jordan,C.A. Hooper. Volume 1.
Section 2:The Civil Law of Palestine and Trans-Jordan,C.A. Hooper. Volume 2.
Volume 4, PART I :ORDERS-IN-COUNCIL
Volume 4, PART II : ORDINANCES, PUBLIC NOTICES, PROCLAMATIONS AND REGULATIONS
Section 1: 1918 to Section 27: 1947
OFFICIAL REPORTS AND MEMORANDA, PART I
Section 1: Memoranda on Land Law and Tenure, 1918–1925
Section 2: Memoranda on Credit, 1918–1930
Section 3: Memoranda on Land Taxation, 1922–1926
Section 4: Memoranda and Reports on Land Survey, 1925–1946
OFFICIAL REPORTS AND MEMORANDA, PART II
Section 5: Memoranda on Land Taxation, 1927–1933
Section 6: Memoranda on the Settlement of Title to Land, 1927–1934
OFFICIAL REPORTS AND MEMORANDA, PART III
Section 7: Land Legislation and Development 1929–1933
OFFICIAL REPORTS AND MEMORANDA, PART IV
Section 8: Agricultural Credit, 1930–1936
Section 9: Memoranda on restricting land sales, 1930-1936
Section 10: Peel Commission
Section 11: Anglo-American Committee of Enquiry, 1945–1946
Section 12: Memorandum on land registration at the termination of the Mandate
FromSupplement No. 2 to the Palestine Gazette Extraordinary No. 988 of 28th February 1940.Volume 4,Part II: Ordinances, Public Notices, Proclamations And Regulations. Section 22: 1940:‘Land Transfers Regulations, 1940’.
Map 01.“Palestine.(Map showing area of land belonging to Jewish National Fund, and other Jewish land.)”
Map 02.“ArabTerritories and Palestine.”
Maps 03-07FromDepartment of Surveys, ‘Report for the years 1940–1946 (with supplement for 1947–1948)’. From Volume 5, Section 4: Memoranda and Reports on Land Survey, 1925–1946.
Map 03.“Map 1. Land Settlement, Palestine.”
Map 04.“Map 2. Town & Village Plans, Palestine.”
Map 05.“Map 3. Triangulation, Palestine.”
Map 06.“Map 4. Topographical Maps, Palestine.”
Map 07.“Map 5. Levelling, Palestine.”
Maps 08-11From ‘Report on Immigration, Land Settlement and Development’, Sir John Hope-Simpson, 1930. Appendix Containing Maps (In continuation of Cmd. 3686.) From Volume 7, Section 7: Land Legislation and Development 1929–1933.
Map 11.“Palestine. Map No. 6.” (Showing lands in Jewish ownership, Administrative districts and sub-districts.)
Maps 12-16From “A Survey of Palestine: Prepared in December 1945 and January 1946 for the Information of the Anglo-American Committee of Inquiry (Regarding the Problems of European Jewry and Palestine)”, Cmd. 6808, Supplement to Volume IV. From Volume 8, Section 11.
This project places before scholars a range of primary source material pertaining specifically to land legislation in Mandate Palestine. There are two specific aims. One is to provide the texts of major pieces of legislation that governed the rural land regime in Palestine between the years 1917 and 1948. Another is to provide some necessary context for that legislation by making accessible the major reports and memoranda produced by British officials during that period. A crucial part of this historical context is the legacy of Ottoman administrative structures: accordingly, also included in these volumes are the key sources of Ottoman land law upon which British officials relied.
Embedded in the question of land is a rich diversity of economic, social, legal and political relationships. This collection of governmental efforts to understand and control the variety of rights that governed access and management of land should be of wide interest. Some of these reports (for example, those authored by Sir John Hope-Simpson, Lewis French, and C.F. Strickland) are frequently cited in the extant literature, but exist only in government archives. Other reports (for example, those of the chief land adviser to the Palestine government, Sir Ernest Dowson) are less well known than they ought to be, both for their significance to the interwar history of Palestine and, as importantly, to the comparative study of colonial administrations in the twentieth century. Reproducing these reports here in their original draft form, and where possible including marginalia and copy edits, sheds useful light on the contentious inner workings of the policy-making process in a colonial context.
For the study of Mandate Palestine, this series complements the 16 volume collection of administrative reports published in 1995 by Archive Editions, Palestine and Transjordan Administration Reports, 1918–1948. Included in that series are the annual reports, put together by the departments of lands and surveys, which include essential information not reproduced here in the same format. Also included in the collection of administrative reports is the extensive 1946 Survey of Palestine. The reproduction here of Survey of Palestine Volume IV, a collection of important maps, completes publication of this essential resource. The reader’s attention is also directed to The Law Reports of Palestine, the abridged collection of legal judgments of the Palestine courts that were published between the years 1920 and 1947.
For the purpose of studying the laws and legislation that made up Palestine’s land regime, an important starting point is recognition of the various and overlapping administrative structures that mediated and defined the rules governing property rights. At the beginning of the twentieth century Palestine was part of the Ottoman Empire, a world empire that had ruled the Arab lands of the Middle East for 400 years through a system of administrative districts known as vilayets and sanjaks. The defeat of the Ottoman Empire in World War One precipitated the negotiation of new political arrangements, primarily between Britain and France, which not only defined the borders of the new state of Palestine, but also set the stage for a new set of administrative patterns. Though effectively run as a crown colony in the interwar period, Palestine was recognized by the newly formed League of Nations as an ‘A’ mandate: technically, this meant that it was to be administered like a trust by Britain until ready for self-government. But it was also subject to special stipulations recognizing Britain’s earlier promise in 1917 to facilitate the establishment of a ‘Jewish national home’. Each of these overlapping designations –sanjak, colony, home, state – played key roles in the transformation of Palestine’s land regime between the years 1917 and 1948. Their actual significance can be usefully elaborated upon by dividing the years of British rule into four periods: 1917–1920; 1921–1929; 1930–1939; 1940–1948.
The British policy-making process in Palestine
Britain was selected in 1920 by the principal Allied powers as mandatory for Palestine. This status was officially recognized in 1923 by the Council of the League of Nations. The League demarcated different classes of mandates: for less advanced ‘B’ and ‘C’ mandates, longer periods of trusteeship were proposed, whereas the more advanced ‘A’ mandates involved countries judged to have already ‘reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.’ The Arab lands of the former Ottoman Empire, including Palestine, were all defined as ‘A’ mandates. In Palestine, however, this definition was disregarded in practice, with the result that the population there would enjoy less share in their government than in Ottoman times.
In 1920 government in Palestine passed from that of the military administration, established by British soldiers upon their victory in late 1917 over Ottoman forces, to that of a crown colony. Failed attempts in the early 1920s to draw the Palestinian population into a legislative council, as was the norm in other British dependencies, meant that governing power in Palestine was limited to the High Commissioner and his own council of British officials (mostly ex-officers who had arrived as part of the military operations of World War One). Meanwhile, in London, control passed in 1921 from the Foreign Office to the Colonial Office where officials of a Middle East department assisted the Secretary of State for the Colonies in managing affairs. Although the League of Nations put together a Permanent Mandates Commission to watch over mandatory affairs from Geneva, British colonial officials do not appear to have been overly constrained by such oversight in their day-to-day running of Palestine. Representatives of the commission did not seriously challenge the extent to which the mandatory government of Palestine was practically a British colonial administration.
As a rule, all ordinances formulated in Jerusalem were to be submitted to London for the approval of the Colonial Office. The closest supervision was saved for expenditures. The establishment early on of a grant-in-aid to cover the costs of the continued presence of a British military force in Palestine formed for many years the basis of the British Treasury’s claim to exercise general control. While Britain’s domestic financial situation cast a long shadow over Palestinian governance, one should also note the extent to which London’s role provided opportunities for a variety of external political pressures to influence the legislative process in Jerusalem as well. Nonetheless, thousands of miles away and with limited resources at their disposal, officials there were often forced to defer to the men on the spot and their closer knowledge of Palestinian conditions.
In Palestine, the administrative system was highly bureaucratic and autocratic, but it was not monolithic. Two dominant features largely influenced the formation of land policies. Firstly, given the cardinal rule of British imperial policy that colonies pay their own way, finance was the overriding consideration in Jerusalem as it was in London. Though Palestine was, as commonly noted, ‘taxed to the hilt,’ there was rarely much left over beyond essential security and administrative expenditures. The burden of balanced budgets, combined with an overall lack of capacity on the part of a small and generally inexperienced government service ensured that official policies tended to favour maintaining a conservative status quo. Accordingly, British officials relied heavily on the administrative structures of the land regime inherited from the Ottoman Empire. Added pressure to respect the Ottoman status quo of course came from well-established patterns of military administration which, governed theoretically by the 1907 Hague rules, restricted substantial changes to the laws of an occupied territory.
For these reasons, the official entry into Jerusalem by Edmund Allenby, Commander-in-Chief of the Egyptian Expeditionary Force, in December 1917 presents significant problems as a starting point for the study of Palestine’s land regime. In fact, the state-building processes of Palestine in the interwar years owe a great deal to the bureaucratic and administrative reforms of the Ottoman Empire in the mid- to late- 19th century, a period commonly known as the Tanzimat. Of course, emphasizing the importance of the Ottoman administrative legacy should not obscure the highly contested processes by which Ottoman legal and tenurial categories of land came to be understood, or deliberately misunderstood, in the context of British colonial rule. The fact that the central government in Jerusalem was unable to associate the people of Palestine with the administration of their country through some form of legislative council vastly complicated the efforts to ensure that land legislation acquired a certain level of legitimacy in the eyes of the local population. Nonetheless, to be successfully implemented, colonial land legislation and policy were determined in important ways by the need to align with prevailing notions of property.
The second fundamental feature of post-1917 Palestine was the ad hoc, sometimes even contradictory, nature of British land policies. A useful preliminary step to untangling the various aims and intentions of colonial land policies is to address the utilitarian set of expectations which colonial officials commonly held themselves about the proper role a property rights regime was expected to play. They include: identifying and protecting the public domain; lowering transaction costs and facilitating the transfer of land to its highest value use; providing and securing agricultural credit; ensuring the proper and efficient taxation of immovable property; and, encouraging private enterprise and development. While not readily acknowledged by British officials, there was available to them an Ottoman administrative grid and body of legislation which in fact had already anticipated the very registration of rights over immovable property upon which their own utilitarian set of expectations was premised. However, to fully grasp the nature of colonial land polices in Mandate Palestine, one must treat with care the single coherent generalized abstraction regurgitated in official reports. Officials had to contend throughout the mandate period with the very real tensions and contradictions that bedeviled their abstract thinking about it. Colonial Office officials in London, government officials in Jerusalem, and the district administrators on the spot, all had reason to factor these tensions differently, with the result that colonial policies were far from consistent.
The Jewish National Home
Along with the directive to establish in Palestine the instruments of self-rule, the League of Nations’ mandate incorporated the promise made in 1917 by British Foreign Secretary Arthur James Balfour to facilitate the creation of a Jewish national home in Palestine. Under the British mandate, the population of Palestine accordingly increased from approximately 700,000 at the time of the First World War to nearly 2 million in 1947. Whereas, at the outset of the mandate, nearly 10 per cent of the population was Jewish, at the end nearly one-third was Jewish, mostly of east European origin. Owing to the pace and volume of Jewish immigration and to continual failures in advancing constitutional issues – the debates over which usually hinged on the powers to control immigration – the interwar period witnessed a general politicization of Arab and Jewish communities which affected other issues, such as land, in particularly significant ways.
Indeed, the key to understanding the convoluted history of land legislation lies in applying due weight to the politics of the Jewish national home. Most of the literature on the history of the mandate has focused on the question of land transfer from Arab owners to Jewish purchasers. However, disproportionate emphasis on Arab–Jewish conflict risks reading history backwards. Only a relatively small proportion of Palestine, less than 10 per cent, was actually acquired by Jewish land purchasers before 1948. Nonetheless, the focus of many historical accounts tends to be on Zionism as a determinant force in the development in Palestine of a new land regime, which itself is thus misrepresented as a fundamental disjunction from what was there before. Great care must be taken to avoid underestimating the significance of other factors essential to the proper determination of overall frames of reference. One of the clear advantages of a series of primary source material such as this one, which lays out the documentary record in chronological order, is that it offers the scholar the opportunity to see how the history of land legislation was lived forward.
In any colonial context, the way British officials viewed property and the meanings given to it changed with time. But colonial land officials in Palestine probably had more reason than most to fret about how the march of events tended to outstrip legislation. The history of land legislation falls neatly into four main phases corresponding to the four decades spanned by British rule: 1917–1920; 1921–1929; 1930–1939; 1940–1949.
The period of military administration in Palestine began in 1917 with the military victory over the Ottoman army, the establishment of the borders of the Occupied Enemy Territory Administration (South), and the exercise of direct rule by British officers based in Jerusalem. Military rule lasted until June 1920 when, despite the fact that official ratification of the mandate had to wait until the 1923 signing of a peace treaty with the new state of Turkey, the military administration gave way to a civil administration in order to relieve the British military (and through it the British taxpayer) from continued expenditures. This brief but transformative period of military rule was characterized by two main features: firstly, the need, in the face of war-time humanitarian crises and administrative chaos, to initiate a program of economic reconstruction; secondly, the need, both for expediency and in order to appease the French, to adhere to the principle of maintaining the status quo in Palestine.
In the 1920s, something as close to a typical colonial administration as possible came into being. The role of the colonial state in the legislation process can be seen chiefly in the dominant role played by British officials (in the corridors of power in London and in Jerusalem, as well as in the district courts and revenue offices) and in the ways in which ordinances from other British dependencies were drawn upon as templates. One clear example of this influence was the prevailing anxiety with the extent to which transaction markets in land inevitably raised the question of peasant dispossession which in turn risked contributing to political instability. Accordingly, the land transfer ordinances of 1920 and 1921 included provisions aimed at protecting the status of agricultural workers and ensuring also that sellers themselves, if in occupation of the land, retained sufficient land to maintain their families. This legislation also aimed at facilitating the Jewish purchase of land, but the overall influence of Zionism during this period appears rather muted. The main constraint, as in other colonial contexts, was the need to ensure that land legislation at some basic level was acceptable to the local population. This is well-illustrated in the writings of Sir Ernest Dowson, the pre-eminent adviser during the 1920s to the Palestine government in Jerusalem, as well as to the Colonial Office in London thereafter. For example, in 1925 Dowson authored three very influential reports that are noteworthy for the limited attention directed at the subject of Jewish land acquisition. The priority instead was placed on ensuring the cooperation of local cultivators, particularly in regard to measures aimed at the effective collection of tax revenue and the successful establishment of a cadastral survey. Of greatest significance for an understanding of land legislation during this period, the keystone 1928 land transfer ordinance in particular, is the attention Dowson directed towards continuities with the Ottoman past and in particular the challenges of interpreting Ottoman land law. Much useful light is shed on this process by the inclusion in this series of official documents of Dowson’s own annotated copy of the 1919 edition of Stanley Fisher’s OttomanLand Laws containing the OttomanLand Code and later legislation affecting land.
In the 1930s, British officials struggled greatly to make necessary decisions on important questions relating to land policy. The context which defined the troubled decision-making process in this period was created by the political instability instigated by the 1929 Wailing Wall riots, one of the major turning points in the history of Mandate Palestine. Reports written in the wake of these disturbances, particularly those written in 1930 by the Shaw Commission and Sir John Hope-Simpson, all drew close attention to the growth of a body of landless Arabs and to the feelings of disaffection and unrest that, it was widely argued, had intensified to the point of constituting a political danger. The earlier legislation passed in the 1920s was criticized for having achieved too little in checking the tendency towards the dispossession of cultivators from their holdings. The mere provision of monetary compensation as allowed in one amendment that replaced earlier safeguards was judged actually to have encouraged that tendency. As outlined in the October 1930 Statement of Policy, as well as in the subsequent February 1931 letter written by Prime Minister Ramsay MacDonald to Dr. Chaim Weizmann Britain accepted responsibility for the resettlement of Arab cultivators, for the improvement and intensive development of the land, and for the establishment of centralized control over land transactions. As ambitious as this legislative agenda was, it faced huge obstacles in the acute financial stringency felt at home during this period as well as in the growing hostility among Arabs and Jews in Palestine. Although full power was reserved for Palestine’s High Commissioner to protect tenancy and occupancy rights, including those of squatters, official consideration of any legislation that would prevent owner-occupiers from disposing of their land was strictly avoided, at least until 1936. But at that point legislation was again outstripped by the march of events: the Arab disturbances of the 1936–1939 period brought about a general breakdown of British administrative structures. The High Commissioner was, finally, given general powers to prohibit and regulate all transfers of land under the terms of the 1940 land transfer regulations.
Historical studies of Mandate Palestine often sacrifice coverage of the last decade of British rule, ending their examination with the 1936–1939 disturbances and the consequent breakdown of economic and political structures. Clearly the increased political pressure due to the intervention of external factors distinguishes this final phase in terms of the toll it took on the legislative process. During the last eight years of British rule in Palestine, the government in Jerusalem was severely limited by the constraints thrown up by the intense conjuncture of events during this period: the huge financial (and ideological) deficit run up by London in the course of fighting the Second World War; the American interests that now had to be factored into the policy process; and, of course, the by-now irreconcilable demands of Arabs for majority rule in a unitary state and the worldwide push for an independent Jewish state in the wake of the Holocaust. Despite, or perhaps because of, the inevitability of a destructive civil conflict, land policy nonetheless continued to develop in constructive ways during the last few years of the mandate. Most intriguingly, the Palestine government was busy to the end making its mark, as witnessed for example by a ten-year forestry plan scheduled to begin in 1946–1947. Much more importantly, the overwhelming sense of insecurity in the last couple of years convinced British officials of the need to photograph, at great expense, all records of land title and ownership lest the originals not survive the chaos of impending civil war. This huge effort, in a time of prevailing scarcity, stands as a remarkable testament to the significance attached to land records as instruments of government rule. But it is also an impressive indication of the importance that would continue to be attached to land registers by those whom the British government officials left behind.
For many historians of British empire, Palestine represents its greatest failure. As early as 1925, one British colonial official had prophesied that ‘The secret of success for Palestine is to leave the country alone and let it subside into somnolence. Writing about it is a disease that attacks us all in turn.’ Reflecting a similar level of frustration, a memorandum circulating in the Colonial Office during the previous year had argued that ‘our work in Palestine has been severely hampered by continued uncertainty. The plant has been continually dug up to see how it is growing. It could not be expected to survive under such conditions.’ Officials working in Palestine commonly bemoaned its curse as a land of committees, not milk and honey: ‘I shudder at the prospect of anybody conducting another enquiry to be embodied in a special report,’ reflected Secretary of State Philip Cunliffe-Lister, as early as 1932, on the accumulation of written material generated by committees and commissions in Palestine. All in all, the 30-year British administration of Palestine left behind a formidable archival record. Whether the copious records can themselves share in the responsibility for this failure is an intriguing question. What is undeniable is the degree to which historians of Mandate Palestine rely upon them.