Church and landed property

Τhe purchase of land in Palestine by the Jerusalem Patriarchate had two main purposes: the acquisition of either properties for its own use or properties in the vicinity of areas of religious significance within the context of building competition with other denominations.Footnote ¹⁰ Additionally, the financial repercussions on the Brotherhood occasioned by the seizure of property by Prince Alexandru Cuza in Wallachia (1863) probably played a role as well. This problem had already become apparent after the Greek Revolution (1821), when for a while the Ottomans seized the flow of revenues to the Brotherhood from its properties in the Balkans.Footnote ¹¹ The Greek state attempted also to expropriate monastic property from 1834 until 1847.Footnote ¹² The sequestration of the Patriarchate's income from the Bessarabia estates by the Russian government throughout the nineteenth century also affected its land policy. In short, the fear of losing their capital led the religious officials to invest in Palestine, where their social status and networking guaranteed the resolution of any problem that might arise. In conjunction, the commercialization of agriculture, as well as the integration of Palestine within the international market,Footnote ¹³ provided security that Church investments would yield substantial income. The Patriarchate acquired and kept in its possession all its properties by exploiting the favourable Ottoman legal framework that applied to land acquisition and administration.

The Ottoman legal system defined three main categories of landed property: mulk, miri, and vakf. Mulk was freehold ownership mostly limited to built-up areas in urban centres or villages and their immediate environs. Miri were the lands belonging to the State, which constituted the bulk of rural land, usually assigned or leased to the local population for the purpose of individual or collective use and cultivation with usufruct rights (tasaruf) given to the landholder, who had to pay a fee for the holding rights or usufruct of the property, the so-called tapu. The state maintained ultimate ‘ownership’ of the land (raqaba), while the farmers had ‘possession’. Vakfs were pious endowments, namely property donated for charitable purposes for the ‘poor’,Footnote ¹⁴ and typically administered by a religious institution or family trustees.Footnote ¹⁵ The vakf belonged in principle to God and its use had to serve the ‘aim’ defined by the donor. As such it could not be sold, but only leased.Footnote ¹⁶ According to Islamic jurisprudence, there are two main types of vakf: a) vakf hairi, which were dedicated with a discrete public purpose to please God, and b) vakf ahli, namely family vakf devoted to the general benefit of the children and other relatives. An individual could endow only his private property or the usufruct of the miri land under his leasehold. In short, miri land under tasaruf status could not be converted into vakf, but what was on the surface of the same land, e.g. trees or buildings, could.Footnote ¹⁷

According to the Ottoman legal system the Patriarchate could not own private property, but only vakf.Footnote ¹⁸ Moreover, the Church/monastery vakf could only belong, at least in theory, to the family vakf sub-category.Footnote ¹⁹ This was because a Christian endowment, being an endowment of an infidel group, could not by definition please God, which was a necessary condition for establishing a ‘public’ vakf.Footnote ²⁰ On the other hand, the kadis, i.e. the state authority competent to confirm the property's registration as a vakf, sometimes accepted the foundation of ‘public’ vakf by the minority religions, as the Nazareth and Jaffa Sharia Courts indicate, which had to be administered by a clergyman for the benefit of the ‘monks’ and/or of the ‘poor’. The Christian vakfs were in principle taxed by the state, despite some exceptions.Footnote ²¹ As will be analysed below, these two characteristics were the basic conditions for the establishment of a ‘family’ vakf. Consequently, it is likely that their registration as ‘public’ was probably due to the ignorance of the local kadis rather than the existence of a different legal paradigm in Palestine in comparison to the rest of the empire, a hypothesis for which there is no supporting evidence whatsoever. On the contrary, from the beginning the Sultans applied to their newly acquired provinces ‘the system which had already developed elsewhere’.Footnote ²²

The legal norm that enabled the Brotherhood to acquire property was established in the mid-sixteenth century by the Ottoman Sheikh al Islam Ebū’s Su‘ūd, who ordered the confiscation of the miri land illegally possessed by the monasteries, while at the same time providing the right to the same institutions to obtain the usufruct of these properties with a lump-sum payment of the tapu fee. In effect, the land was de jure as well as de facto the Sultan's property, while it was made possible for the monasteries to acquire the ownership of the usufruct in the a form of a loan.Footnote ²³ Within this framework, the monastic community faced another problem: it could not own private property, because the Church institutions, being a corporate body, were not recognized as ‘legal persona’; thus, any endowment to the monastery, as an institution, was invalid and illegal. To tackle this problem, Ebū’s Su‘ūd ordered that, contrary to what applied to the monasteries, the faithful could make legal and valid endowments of their freeholding properties or their usufruct rights over miri land to the ‘monks’.Footnote ²⁴ Defining the group of monks residing in a monastery as a unified body that formed a ‘family’ in the broad sense, Ebū’s Su‘ūd gave the opportunity to the religious institutions to acquire land under the status of the family vakf.Footnote ²⁵

The Ottoman Land Code (1858) further promoted the land accumulation process. The Code did not signify a structural change as far as the ways the Christian institution acquired real estate, but clarified existing legal practice, thus making the procedure of registering the land possession and usufruct much easier for the Jerusalem Brotherhood. In particular, article 122 specified that ‘Land attached ab antiquo to a monastery and of which the attachment is registered in the Imperial Defter Khané cannot be possessed by Tapu and it cannot be bought or sold; but concerning land which has ab antiquo been held by Tapu, and which has subsequently by some means passed into the hands of a monk, and which is being possessed without Tapu as being attached to a monastery, the same procedure as with regard to other Arazi Mirie is followed, and as before it is caused to be held by Tapu’.Footnote ²⁶ In accordance with Ebū’s Su‘ūd's ordering, article 122 defined that the Brotherhood could have in its possession two type of properties: a) the various estates attached to its various dependencies held ab antiquo, namely the land for which Ebū’s Su‘ūd had ordered the monasteries to pay the tapu in order to keep their old assets; and b) the vakf properties, of whose possession or the usufruct the Brotherhood had been the recipient or the trustee.

The second paragraph of article 122 should be also linked to articles 25 and 32. In short, these clauses clarified that any individual could acquire the legal titles of land possession on the condition that he had paid the relevant fee to the State, i.e. the tapu. The effect of systematizing the process of state land registration was the partial de-regulation of the real-estate market.Footnote ²⁷ However, this opportunity for acquiring land was not used extensively at that time by the peasants, who hesitated to register the land they themselves cultivated under their own names. In effect, the door opened for the local elites to sign on their behalf, thereby accumulating property.Footnote ²⁸ It is possible that the Brotherhood, being part of the social establishment,Footnote ²⁹ took advantage of the new legal framework and increased its holdings. In conjunction, the Patriarchate was part of the state mechanism for the collection of taxes and responsible for the liabilities of the Orthodox population within its jurisdiction. In effect the Patriarchate had to cover the debts of its peasant congregation, acquiring in exchange the ownership of the usufruct rights of their properties. Because the Patriarchate did not have the necessary recognition as a legal entity and was thus not eligible to purchase the possession of rural land, the respective title deeds were registered under the name of a Patriarchal official, who had the right to endow their use to his religious institution, as a vakf.Footnote ³⁰

The same practice was followed for the purchase of mulk properties, where the individual monks as the private owners constructed large blocks of buildings, which allowed the monastery to earn important revenue from the rents. This was facilitated by the idiorrhythmic pattern of the Brotherhood's monastic function. That means that each monk had the right of private ownership and the freedom to accumulate capital and manage it by himself without any constraint from his monastery. The case of Nikiphoros Petatsis, who registered in his name an estate that currently covers a large part of West Jerusalem, is characteristic. These properties were considered vakf property and were administered by the Patriarch after the monk's death. In this regard, the inheritance status of these miri and mulk property was a complicated matter, having caused a judicial confusion. With regard to the miri, its allocation did not signify a change of ownership status, but rather the legal recognition of a person's exclusive rights of use. According to Richard C. Tute, the Land Code (article 122) stipulated that the Patriarchate could inherit the ‘possession’ of state land only if a relevant firman (Imperial edict) was produced, in which the Porte made an exception in its favour.Footnote ³¹ Contrary to this view, Kermeli has argued that since the monks of a given monastery were conceptualized in Islamic legal theory as forming a ‘family’, the Brotherhood could actually inherit the properties of its members. Ebū’s Su‘ūd determined that the monks did not have to pay the tapu fee to acquire the usufruct of the land that was in the ‘possession’ of their deceased brethren, provided there was a relevant registration in the defter. Subsequently, the remaining monks were ‘treated similarly to the son of a deceased peasant who can directly inherit his father's rights to the usufruct without any entry fine’.Footnote ³² The characteristic names of certain Patriarchal estates, such as the ‘Nikiforia’, indicate that this type of land was inherited by the Brotherhood.Footnote ³³ The fact that the British ordered them to be registered as vakf Footnote ³⁴ is another indication to this point. In conclusion, the definition of religious properties as family vakf made it possible for the Brotherhood to acquire, indirectly through Church officials, private or leasehold property that could be bequeathed to the Patriarchate, and whose appropriation was forbidden.

In accordance with the legal formula introduced by Ebū’s Su‘ūd, various berats (Imperial decrees) of investiture, which officially defined the rights of each individual Patriarch, stipulated that the Brotherhood should become the legal owner of its deceased clergymen's property.Footnote ³⁵ On the basis of the berat of Patriarch Hierotheos (1875) as well as the firmans of the years 1545, 1580, 1645, 1703 and 1809, the Ottoman Interior Ministry promulgated in 1882 a legal Order and an Encyclical protecting the Patriarchal right of inheritance.Footnote ³⁶ The decision of the Ottoman Council of State (Supreme Administrative Court) of April 1882, according to which the holdings of the monks Kaisarios and Parthenios should be directly inherited by the Brotherhood instead of the monks’ relatives, put a constitutional end to this kind of legal dispute.Footnote ³⁷ This right was further ratified by Patriarch Damianos’ berat of investiture (1897).Footnote ³⁸ The Mandatory authorities in Palestine did not dispute the status quo. After 1948, neither Jordan nor Israel has changed this policy.

Additionally, the Patriarchate possibly administered vakf properties, the revenues of which were not allotted solely to it, but served for the benefit of the donor as well. As regards this vakf type, which was very common in Palestine,Footnote ³⁹ the trustee kept the possession, but the donor was granted the enduring freehold as well as the right to transfer this status to his family.Footnote ⁴⁰ According to the Arab Orthodox, eighty houses within the walls of Jerusalem were handed in trust to the Patriarchate by their owners in order to escape Ottoman confiscation. This was why their residents occupied them free of rent. The fact that in 1921 the British authorities allowed them to be sold on condition that the rights of tenants and lessees would be respected might be taken as supporting evidence for this type of endowment.Footnote ⁴¹

In sum, the properties in the Patriarchal portfolio, all considered in principle to be family vakf, might be divided in the following sub-categories:

1. a) Land attached ab antiquo to the various Patriarchal dependencies.

2. b) Miri or mulk property endowed to the Brotherhood, i.e. the ‘poor monks’, who acquired full ‘possession’ and ‘use’ of it.

3. c) Miri or mulk property endowed to the Brotherhood, which acquired the ‘possession’ but not the full ‘use’ of it.

4. d) Miri land registered and held in possession in the name of a monk, which was bequeathed to the Brotherhood, i.e. the ‘family’ of the deceased monk.

5. e) Mulk land purchased in the name of a monk, which was bequeathed to the Brotherhood, i.e. the ‘family’ of the deceased monk.

The question that arises is, which authority or legal body should be institutionally responsible for managing these Church properties?

The administration of religious property

The vakf property was registered to the mutavelli (administrator-curator of the endowment), who was thus responsible for the purpose to be served. The donor of the vakf determined its precise recipient, i.e. which institution would receive the revenues from the endowment as well as the purpose for which the revenues would be used. If this was not specifically delineated, the management of the revenues rested solely at the discretion of the trustee. As regards the Jerusalem Brotherhood, the Patriarch had the authority to manage the vakf properties as its head and hence the legitimate executor of the endowment's purpose, i.e. the well-being of the ‘poor monks’ and/or the pilgrims. This norm was regulated through the enactment of certain legal decrees or imperial edicts (i.e. firmans, orders, berats, etc.) imposed either as the charter, internal law and regulations of the institution, or as powers and competencies allocated ad hoc and personally to its head (i.e. the Patriarch).Footnote ⁴² Thus, the regulatory framework applied to different Church institutions might have differed in certain aspects depending on historical as well as domestic socio-political circumstances. A comparison between the berat nominating the Armenian Patriarch of Jerusalem Assaii Lijeryan (1864)Footnote ⁴³ and the respective decree confirming Patriarch Damianos’ election about thirty years laterFootnote ⁴⁴ is indicative. Except for certain clauses, which corresponded to the particularities of each denomination, the two documents are almost identical, indicating a probably uniform pattern in Ottoman policy towards the Jerusalem Churches. On the other hand, this legal framework also meant that the ruling Ottoman authorities allowed different administrative schemes between two different institutions of the same millet, i.e. the Ecumenical Patriarchate and its Jerusalem counterpart. Lastly, this legal framework allowed the same Patriarchate to operate according to diverse systems when the Patriarch changed.

All the berats of investiture throughout the sixteenth to nineteenth centuries defined the Jerusalem Patriarch as the mutavelli of the vakf property, forbidding any external interference in the finances.Footnote ⁴⁵ However, after the formation of the Arab Orthodox movement, two competing views on real-estate management were advocated. From the Greek viewpoint, the Brotherhood was the sole owner of all the properties. Hence, the Patriarch as its head and the Holy Synod as its supreme organ should control the administration of these properties. In contrast, the Arab community perceived the vakf to be ‘the endowments of the Church considered as a whole’.Footnote ⁴⁶ For them, the term ‘Church’ was not limited to the holders of ecclesiastical office, but rather it signified the Orthodox community in its totality. The appropriate body, therefore, to control the Patriarchal finances should be a Mixed Council, composed of representatives from both sides. The Ottomans, however, pursued a pro-Greek policy, not allowing any substantial satisfaction of their demands.

The turning point for the Arab Orthodox cause was the enactment of the so-called ‘General Regulations’ of the Rum Millet (1862), which stipulated the establishment of a Mixed Council and broad lay participation in the Patriarchal election process. However, while the regulations were applied in Constantinople and Antioch, the Jerusalem Brotherhood prevented their implementation, viewing them as a ‘Trojan horse’ that would lead to the Arabization of the Patriarchate.Footnote ⁴⁷ The Brotherhood's refusal was theoretically founded on institutional grounds: a) Article 15 of the Regulations stipulated that the Patriarch of Constantinople would have the jurisdiction to supervise the affairs concerning the Orthodox Holy Places in the whole empire as well as to control their financial administration in consultation with the local ecclesiastical authorities, if need be.Footnote ⁴⁸ The Brotherhood could not accept that such a right would be vested in the Ecumenical Patriarch, thus downgrading its own authority and jurisdictional independence. b) Lay participation in Patriarchal administration threatened the Brotherhood's’ organizational structure as a monastic community, because the property endowed for the welfare of the ‘poor monks’ could not be managed by a lay body. The question that arises is, why were the regulations accepted in Antioch, where a similar nationalist controversy between the Greek clergy and the Arab laity existed, and not in Jerusalem?

This differentiation was founded on both social and legal grounds. First, the lay notables had an important say in the social life of Syria and were able to influence the decision-making process in relation to their Church institution. This condition was not fulfilled in the Jerusalem community in the period immediately after the Hatt-ı Hümayun (1856). Second, the regulations were applied in Antioch in 1876, i.e. after the enactment of the Brotherhood's Fundamental Law (1875). Subsequently, the application of the ‘General Regulations’ would practically signify the annulment of the newly established regulatory framework of the institution. Third, the Jerusalem Patriarchate did not share the same organizational system with its Antiochian counterpart. The former was structured as a monastic confraternity, the latter as a Church institution. However, even if the regulations had been applied in Jerusalem, it is highly disputed whether the congregation would have participated in the administration of the vakfs endowed to the Brotherhood. This is because the lay council established in Antioch managed those vakfs that had been endowed for the benefit of the ‘poor’ members of the congregation. In contrast, the monastic estates, i.e. the vakf endowed for the benefit of the ‘poor monks’, were not controlled by laymen.Footnote ⁴⁹ Taking into account that the scheme proposed by the Brotherhood was consistent with the Antiochian one, i.e. the properties endowed for the community to be managed by the laity, and the properties endowed for the monks by the Brotherhood, it seems that both Patriarchates actually followed a similar vakf management pattern. The big difference between them was the extent of the properties over which the community could have a legitimate claim. In Antioch the ‘communal vakfs’ were sufficient to cover the needs of the congregation, whereas in Jerusalem these were very few, compelling the laity to demand a fair share of the ‘monastic vakf’ revenues.

The Fundamental Law stipulated that:Footnote ⁵⁰ a) support to the congregation would be given in proportion to the institution's income (article 1); and b) the Synod would decide on all financial questions affecting the Patriarchate, such as the ‘hiring, leasing, appropriation inheritance, purchase and sale’ of the religious holding, in accordance with the framework defined by special legislation and the judiciary. The Patriarch was the competent authority to execute the relevant Synodal decision (article 3). Consequently, the Fundamental Law did not satisfy the laity at all. Moreover, there was no clear reference to the amount of funds to be transferred to the laity, since the Synod had the full authority to determine the sums and their allocation. In effect, the laity was compelled to follow the Patriarchate's orders in order to obtain some benefits for the community. Before the Arab protests, Patriarch Hierotheos (1875-82) circulated an encyclical promising the establishment of a commission in each parish to supervise its budget.Footnote ⁵¹ However, this did not include any control over revenues from the Holy Places under the Patriarchate's custodianship, e.g. pilgrims’ offerings, or from other properties. This encyclical was therefore void. The same applies to the Patriarchate's ‘Internal Regulations’ (1882 and 1902), which established committees for the financial management of landed property,Footnote ⁵² but without any lay participation. Hence, decision-making remained in the hands of the Brotherhood.

This state of affairs was further ratified by the Ottoman berat of Patriarch Damianos’ election (1897).Footnote ⁵³ This legal document may be even interpreted as a retrograde step, for, instead of leading to a more transparent operation of the institution, it gave the Patriarch full authority over the real-estate management at the expense of the Synod, which should have acquired this function according to the Fundamental Law. Whether there was a contradiction between the two legal decrees is an open question. It is interesting to note, however, that since the Patriarch exercised full control over the Synod's composition (article 2) he could actually enforce the implementation of his decisions without being contested.

The third important legal code regulating the Patriarchal finances was the so-called ‘Turkish Order’ (May 1910). The restoration of the constitution by the Young Turks was perceived by the Arab Orthodox as an opportunity to promote their cause. This was because article 111 stipulated the creation of a council in each kaza (district) to administer the vakf. The Order stipulated the establishment of a Mixed Council, composed of six lay members and six Patriarchal representatives. However, the Council's power was limited, since it could supervise the management only of those endowments made to the parish churches and the community institutions. Moreover, the Order stipulated that the Patriarch was considered ex officio to be the administrator of all the vakf within Jerusalem regardless of the purpose of the endowment. The Patriarchate should allocate one third of its revenues to the Mixed Council, namely an amount no less than 30,000 Turkish pounds, as long as the revenue flow remained undiminished.Footnote ⁵⁴ Overall, the congregation's role in Patriarchal finances was still confined to participation in a very small part of the management of the property and revenues. This is because the practical implications of this legal framework were:

1. a) The central Arab claim to register the vakf properties in the name of the lay community was in essence not accepted. The Arab Orthodox could not intervene in the financial management of the Patriarchate's total revenue, which was the issue at stake. Because of the monastic character of the Patriarchate's organizational structure, the Synod was recognized as the only authority to handle these affairs.

2. b) The congregation was deprived of any possibility of electing an Arab trustee for the numerous vakf properties within Jerusalem, including even those endowed for its use. Thus, it was effectively blocked from co-directing properties with significant financial value and symbolic power.

3. c) The revenues from the Holy Places and the Patriarchal dependencies were explicitly excluded from any communal control.

It has been suggested that the pro-Greek stance of the Turkish authorities was grounded on the threat posed by the Arab national movement to the integrity of the state.Footnote ⁵⁵ We have disputed this thesis in another paper, arguing that within this period the Arab national movement in Palestine was in the early stages of its formation and was confined to a small elite group, while political loyalty to the central political authorities was still very powerful.Footnote ⁵⁶ In our view, the Turkish rejection of the Arab Orthodox claims was the outcome of legal as well as diplomatic considerations.Footnote ⁵⁷ First, the application of article 111 was nullified by two other clauses of the same constitution (Articles 11 and 118), which stipulated the consent of the religious authorities as a precondition for any change to the institutional framework of Patriarchal operations. In addition, possible lay participation in the administration of monastic vakf would have jeopardized the whole legal paradigm, causing a plethora of problems to religious organizations with vakf estates in their portfolio. The Ottoman regime had no interest in troubling these institutions and their power networks in order to satisfy the claims of a minor ethnic group at the periphery of the empire. In this respect, it should be added that the Brotherhood was able ‘to fill the pockets of high government officials’ and influence Ottoman policy decision-making as well.Footnote ⁵⁸

This affair might also have affected the property status of the various western-based religious organizations. Intervention on the part of France or Britain on the pretext that the rights of the communities under their patronage were violated was hardly a welcome prospect for the Ottomans in this volatile political period. Furthermore, satisfying the local Orthodox demands might be viewed as a violation of the status quo over the Holy Places, re-opening the endless controversy between the denominations and thus providing valuable ammunition to the foreign powers to maintain the capitulations system, which was viewed by the Young Turks as a basic cause of the state's decline. Lastly, it is also highly probable that the British and German diplomatic agents in Jerusalem supported the Greek side, to counter the close links of the Arab Orthodox with the Russian consulate,Footnote ⁵⁹ a development that would have been damaging to their broader regional interests. The promulgation of the First Provisional Law (1913), which at last recognized the various religious bodies, such as the Patriarchate, as having a ‘legal persona’, thus giving them the right to own and deal with immovable property,Footnote ⁶⁰ made things even worse for the Arab Orthodox side. This facilitated direct acquisition of land under the ‘private’ property status by the Patriarchate, instead of the family vakf status. In effect, the Patriarchate could administer its new holdings free from the institutional constraints of the past.

The end of Ottoman rule activated the Arab congregation. The issue at stake, however, was no longer confined to the balance of power between the clergy and the laity, but was related to the wider national Arab cause: controlling the finances of the Patriarchate entailed the management of the Church real estate at a time of Jewish settlement in Palestine. At the same time the Patriarchate was on the verge of bankruptcy, due to the First World War, poor administration and internal endemic corruption that had led to borrowing large sums serviced by high interest rates. Consequently, its officials were ready to sell Patriarchal land.

The question of Patriarchal land administration under the British Mandate

Despite the heavy liabilities of the Patriarchate, its financial stability was not questioned until the end of the nineteenth century.Footnote ⁶¹ However, the situation became very difficult during the First World War, when the Patriarchal debt reached the amount of 500,000 Egyptian pounds (1 Egyptian pound = 1 British pound sterling), a development that led the institution to the threshold of bankruptcy.Footnote ⁶² The British administration faced a multidimensional problem: on the one hand, it had to protect the Patriarchal finances, because a possible bankruptcy would have served as an argument for the Paris government to preserve the traditional French status as the diplomatic protector of the Catholic community within the Ottoman Empire under the capitulation regime. Consequently, the only available measure was the sale of land, to external purchasers including Jewish companies. On the other hand, the new colonial authorities had to build a political image, presenting the new government as not being prejudiced against the interests of the local populations, in order to dispel their fears regarding the British 1917 Balfour Declaration which favoured the establishment of a national home for the Jewish people in Palestine.

Within this context, a commission was appointed to inquire into the problem. The commission proposed that the Patriarchate be bailed out by leasing its immovable property. To this end, a Financial Commission was established, which operated from 1921 until 1938 and was composed of five members appointed and supervised by the High Commissioner.Footnote ⁶³ Both the Patriarchate and the Arab laity were equally represented on the commission. By accepting Arab participation, the British appeared to be unprejudiced towards the local population without losing control over the commission. According to John E. Shuckburgh, the Under-Secretary of the Middle East Department, conciliation on such ‘minor points’ was in Britain's interest.Footnote ⁶⁴ The duties assigned to the commission entailed the complete management of the revenues and expenditures of the Patriarchate on its behalf, such as contracting loans for the liquidation of debts and assuming the direct administration of any department, property or operation. The commission even had the power to sell the Patriarchate's real estate, including ‘any property dedicated to the poor or the monks of the said Patriarchate, whether with or without any remainder in trust for any other object, any provision of the Law of vakf to the contrary notwithstanding’.Footnote ⁶⁵ Consequently, the commission exercised unimpeded control over all the sales of property under the ownership or trust of the institution and its monks. The Patriarchal bureaucracy, for its part, could not legally contest the enforcement of the commission's decisions. It could object only when the sale would involve the closing of one of its dependencies or when a building within the walls of Jerusalem or an immovable property attached ab antiquo to a monastery was put up for auction.Footnote ⁶⁶ The fear of bankruptcy, a possibility which would inevitably have threatened Greek dominance within the institution, led the Patriarchal officials to accept the British terms. This essentially signified the loss of their power to handle the affairs that had customarily been their exclusive right.Footnote ⁶⁷

The transfer of power from the Greek hierarchy to the commission did not appease the Arab laity for two main reasons: a) its claim to participate in the financial management was not fully satisfied; and b) this state of affairs was not permanent. For, after the commission's aim had been achieved, the land administration would return to the hands of the Greek religious establishment. The first Arab Orthodox Congress in Haifa (1923) maintained the old demand that control over the Patriarchal vakf should be vested in a Mixed Council with a lay majority.Footnote ⁶⁸ Because Patriarch Damianos opposed the commission, the Arab Orthodox laity expected British support for their objectives.Footnote ⁶⁹ Within the context of the Arab Orthodox alignment with the Mandatory administration, the Haifa Congress declared its confidence in the Financial Commission, in spite of the sales of land to the Jewish Palestine Land Development Company.Footnote ⁷⁰ The establishment of the Mixed Council, however, depended on the drafting of new Patriarchal regulations. The British appointed a new commission to examine them (March 1925).

For the new commission, the sale or the mortgage of property was regarded as a precondition for the Patriarchate to pay back its debt. As for the vakf administration, the British officials took a pro-Greek stance. On the one hand, they left room for the possibility that part of the vakf was endowed for the use of the local Orthodox. The Patriarchal officials were not considered to be the owners, but the trustees, of these assets. As such, the congregation ‘have an interest in the proper discharge of that trust, and the allotment of a definite share of the general income of the Church to the Mixed Council for its administration is a reasonable and convenient recognition of that interest’.Footnote ⁷¹ On the other hand, the commission's proposed set of regulations did not touch upon the Synod's right to be the only organ to regulate the Patriarchate's financial and general administrative matters. The Mixed Council under formation would be allowed to acquire property and receive endowments, but it was not recognized as having any jurisdiction over the existing vakfs. Consequently, the relevant provisions of the Fundamental Law, the alteration of which was the issue at stake, remained intact.Footnote ⁷²

The death of Patriarch Damianos in 1931 marked a new phase in the religious finances. The nomination of the new Patriarch, Timotheos, had to be ratified by the British, who were pressed by the Arab Orthodox lay community to refuse, as they considered it to be void and illegal, and to proceed to the enactment of new regulations. This condition gave the government the upper hand, since it could exert pressure on the Patriarchate to consent to the modifications of the Fundamental Law in order to obtain the necessary ratification of Timotheos’ election. As the Colonial Secretary Ormsby Gore stated on 5 March 3 1938, the recognition of the Patriarch presupposed the acceptance of the legal reforms.Footnote ⁷³ Within this context, the government took the initiative to start negotiations. A major disagreement between the Arab laity and the Greek hierarchy concerned the financial authority of the Mixed Council. In particular, the laity claimed the right to control the Patriarchal budget as a whole – apart from the one third allocated for the congregation's use as stipulated by the Order of 1910 – and not merely to be informed about the estimates of expenditures after their approval by the Synod, as the hierarchy maintained.Footnote ⁷⁴ The Arab laity perceived the Greek establishment to be unable to properly manage the Church finances. Thus, the Mixed Council should decide on the administration of the immovable property, considered as a whole to be a vakf held by the hierarchy in trust, and as such to control all the respective sales and schemes of land development.Footnote ⁷⁵ However, the Greek reaction and the absence of clear evidence about the exact extent of the Patriarchal possessions made it difficult to reach a compromise.Footnote ⁷⁶

In July 1938 the Palestine Mandatory government published the Draft Orthodox Patriarchate Ordinance,Footnote ⁷⁷ which supported the Greek views. The Draft Ordinance stipulated that the Synod would decide without restriction about any purchase, sale, transfer, exchange, mortgage or lease of immovable properties. The annual budget would also be drafted by the Patriarchate. On the other hand, the Mixed Council would have a lay majority; it could review the budget and demand an independent enquiry by the government in case of objection. However, it could not raise any objection to the mode of expenditure of any Patriarchal funds other than those placed at its disposal (article 43).Footnote ⁷⁸ The Patriarchate accepted the Ordinance, arguing for some minor amendments.Footnote ⁷⁹ On the other hand, the Arab Orthodox Executive Committee repudiated it, insisting that: a) the laity should have a ‘substantial majority’ in the Mixed Council; b) the parochial clergy should be paid by the Brotherhood, not by the Mixed Council; and c) the Mixed Council should control the vakf.Footnote ⁸⁰ The British did not pay serious attention to these complaints, focusing subsequently on the enactment of the Ordinance. This, however, was a difficult task to achieve, especially within the political conditions prevailing during the period of the Arab Revolt (1936-9) and the active participation of the Orthodox element in the national struggle. The British could not legislate against the expectations of the Arab laity while at the same time seeking their alliance to end the disturbances.

The publication of a new draft of Patriarchal regulations on 20 November 1941 did not include major alterations to the previous Ordinance.Footnote ⁸¹ On the one hand, the Mixed Council would administer one third of the general revenues of the Patriarchate. On the other, the laity's supervision of the Patriarchal revenue management, as well as its control over bank deposits and the various contributions from pilgrims or other sources (article 12) was restricted. Furthermore, the regulations stipulated that ‘donations to the Patriarchate would not be included with revenue distributed to the Mixed Council (article 12, par. 3). Thus in the end the Draft Ordinance secured the centralized governance of the vakf by the Brotherhood and blocked any lay interference in its management. The Patriarchal officials were so content with the OrdinanceFootnote ⁸² that they even proposed that the lay members alone should undertake the duties entrusted to the Mixed Council,Footnote ⁸³ since its authority would be of minor importance. The Arab Orthodox refused to negotiate on the basis of these proposals. However, the relevant resolution of the third Arab Orthodox Congress (Jerusalem 1944) was ‘considerably less detailed and forceful than previous efforts’.Footnote ⁸⁴

After the Arab refusal, the British refrained from further engagement in the affair until the end of the Second World War; nor did the other interested parties take any step to reopen the question. There was a relevant initiative only at the conclusion of the British rule (spring 1946). The new scheme provided for the reconstitution of the Mixed Council with an ecclesiastical majority over the lay representation of two to one, having absolute authority over Patriarchal finances, including the administration of all properties. While the laity viewed these modifications positively, however, they were rejected by the Greek hierarchy on the grounds that they violated the Patriarchate's monastic character and the status quo.Footnote ⁸⁵ Faced with this reaction, the British withdraw their proposal.Footnote ⁸⁶ Besides, the future political control of the region was very fluid, being part of the agenda under negotiation at the United Nations. Any unilateral decision, therefore, would have had no legitimacy in the local or the international political arenas.

Concluding remarks

The controversy between the Greek hierarchy and the Arab laity had political, religious, ideological, economic and social underpinnings. This article has examined its evolution from the late Ottoman period until the end of the Mandate period in Palestine, paying particular attention to the question of land ownership and administration. Overall, we have argued that from the nineteenth century onwards the Jerusalem Patriarchate, by exploiting the Ottoman legal framework, became the owner or usufruct holder of extensive land estates. With regard to the centralized operation of the Patriarchate and its rule over vast Church properties contrary to the demands of the lay element, we find that both the Ottoman and the British authorities effectively took a pro-Greek stance. They neither proceeded to a direct structural reform, which would have satisfied the Arab demands, nor did they prepare the ground for a future inversion of the balance of power between the two opposing camps, despite having the power to do so.

As mentioned before, the Ottomans could not alter the vakf administrative framework in favour of the Arab Orthodox for a number of political, legal and diplomatic reasons. The rationale behind the pro-Greek stance of the British differed from the Ottoman one, because the British did not pay much attention to the legal conceptualization of the Patriarchal property as family vakf. It seems that the major impediment to change in the vakf management pattern was related to the status quo, the maintenance of which was determined by the Palestine Mandate (article 13), as well as that any alteration was a matter for the future ‘Holy Places Commission’ to decide (article 14). As was the case under the Ottomans, the British did not wish any foreign factor to interfere in affairs within their sphere of control. In effect, British power over the Patriarchate was limited, especially after the first decade of the Mandate and the partial financial recovery of the institution. As the British acknowledged, the Patriarchate had the upper hand, since they could only impose what the Greek hierarchy was prepared to concede.Footnote ⁸⁷ Moreover, it seems that London's broader worldwide political considerations before the Second World War played a role too. As George W. Rendel noted, to adopt a sympathetic attitude to the Greek clergy was ‘in the interests of Anglo-Greek relations, which we wished to keep as smooth and friendly as possible’,Footnote ⁸⁸ and seemed to be more beneficial than the gains London would have made had it supported the local Arab laity.