Farming out judicial offices in the Ottoman Empire, c. 1750–1839

Abstract

This article focuses on the widespread practice of appointing deputy judges, called naibs, in the Ottoman Empire from the mid-eighteenth to the early nineteenth centuries. Based on extensive archival research, it analyses how the judiciary turned into a system of allocating revenue sources. An increasing number of offices of kadı (judge) were assigned as a source of income to higher-ranking ulema, who, through intermediaries, in turn farmed out their judicial offices to naibs in return for a fixed sum of money. Importantly, the apportionment fees for taxes collected from local taxpayers constituted a significant part of naibs’ incomes. The practice of deputizing in the Ottoman judiciary thus shows a close parallel with tax farming. Because the naibs transferred their revenues to the higher-ranking ulema, farming out judicial offices became a major economic basis for maintaining the Ottoman ulema hierarchy.

Introduction

During the late fifteenth and sixteenth centuries, the Ottoman Empire established a centralized judicial institution by setting up a sharia court in every judicial-administrative unit or district (kaza) and by appointing a judge (kadı) from the centre. Importantly, the office of judge was hierarchically organized and linked to the hierarchy of professorships at medreses (Islamic colleges), and appointments were made according to ranking. This hierarchical order of judgeships and professorships was called ilmiye, and the Şeyhülislam, or the chief mufti (jurisconsult) of the empire, was placed at its summit.¹

Despite the existence of a well-organized hierarchy based on seniority, scholars have emphasized that the ilmiye institution favoured those originating from ulema families, who routinely occupied high-ranking positions,² although the system was relatively open to newcomers at the lower levels.³ Madeline C. Zilfi noted the emergence of 11 grand ulema families who dominated the highest positions in the hierarchy during the eighteenth century. Concurrent with the culmination of the “ulema aristocracy”,⁴ progressively more offices of kadı began to be farmed out to naibs, or deputy judges. By the late eighteenth century, appointing naibs to kadıships had been well established.⁵

Although the Ottoman judiciary institution has recently attracted renewed interest,⁶ naibs have largely been overlooked. This is because most studies have used ulema biographies or appointment registers, which, despite all their meticulous attention to official ranks, only occasionally provide information on naibs, who were the ones actually administering justice at local courts. Moreover, the few relevant monographic articles have mostly dealt with those naibs who were assistants to judges or judges’ agents dispatched to subdistricts (nahiyes) before the eighteenth century and have tended to focus on their abuses.⁷ Naibs as assistant or subdistrict judges continued to exist in later centuries but differed from the deputies of absentee judges on whom this article focuses. Other studies have been concerned with the reorganization of the judiciary institution from the period of Sultan Selim III (r. 1789–1807) to the Tanzimat period (1839–76).⁸ Our knowledge of eighteenth-century naibs has hitherto been largely based on information obtained from imperial decrees concerning the ilmiye institution and various orders prohibiting naibs’ wrongdoings.⁹ Regarding naibs in general, İsmail Hakkı Uzunçarşılı's classic book on the ilmiye institution remains a reference work, which, in turn, relies heavily on Mouradgea d'Ohsson's late eighteenth-century description of naibs.¹⁰

In this article, which is based on extensive archival sources, I investigate the proliferation of naib appointments from the mid-eighteenth century to the period just before the beginning of the Tanzimat reforms, not as a symptom of deterioration or corruption of the Ottoman ulema but as a result of the transformation of the ilmiye institution into a system of allocating sources of revenue. I begin with a brief overview of the Ottoman judiciary institution, followed by a description and analysis of the proliferation of deputization. I then discuss the financial aspect of appointing naibs, which bears a remarkable similarity to the practice of tax farming, and examine the naibs’ sources of revenue, focusing on the fees for tax apportionment. Finally, I argue that the proliferation of deputization led to the integration of the judiciary into the Ottoman system of tax farming and that the fee revenues collected by naibs constituted the financial basis that supported the domination of the established ulema families in the ilmiye hierarchy.

Proliferation of naibs

The ilmiye hierarchy

The hierarchical organization of the ilmiye had been established by the mid-sixteenth century and underwent further elaboration in the following centuries. Here, I draw an outline of the kadıship institution, focusing on the situation during the eighteenth century.¹¹ Kadıships in the Ottoman Empire were divided into mevleviyet kadıships, or judgeships of major cities, and town kadıships (kasabat kadılıkları). The divide between these two categories was determined by their respective estimated daily revenues: the former had a daily revenue of 500 akçe, and the latter, a daily revenue of less than 500 akçe. These sums should not be confused with salaries. Kadıs generally did not receive a salary; instead, their income was based on fees that they collected in return for their judicial, notarial and administrative services.¹²

The offices of mevleviyet were reserved for those who attained the high-ranking professorships of medreses in Istanbul – initially those with the professorial rank of Sahn and, during the eighteenth century, those who attained the rank of Musıla-i Süleymaniye or higher. By the eighteenth century, the offices of mevleviyet were arranged into four ranks: in descending order, Istanbul, Haremeyn, Erbaa and Mahrec. A mevleviyet kadı was called molla (mevlâ). The word's plural form, mevali, was more frequently used to signify his status, which was guaranteed even when he no longer held the office, as he remained a rank (paye) holder. In principle, one had to move through every rank, beginning with Mahrec, to reach the kadıship of Istanbul. The kadı of Istanbul could be promoted to the office of Kazasker of Anadolu, or supreme judge of the Asian provinces, then to that of Rumeli (the European provinces) and, finally, to that of Şeyhülislam. This career line from professorships to mevleviyets to the office of Şeyhülislam was called the professorship hierarchy (tarik-i tedris).

Some mevleviyet posts not included in the abovementioned four ranks, such as the kadıships of Belgrad, Bosna, Filibe, Kütahya, Konya, Kayseri and Amid (Diyarbekir), were designated as devriye mevleviyetleri. Professors below the rank of Musıla-i Süleymaniye and, from the early nineteenth century onwards, professors at medreses in Bursa and Edirne¹³ could be transferred to these judgeships but could not, in principle, be promoted to regular mevleviyets. They would simply rotate through offices of the same rank – hence the term “devriye” (rotation). The creation of these lower mevleviyet posts was probably meant to provide those stuck in the professorial ranks with an alternative means of promotion.¹⁴

The town kadıships, or simply mansıbs, belonged to three geographical groups – namely, Rumeli, Anadolu and Mısır (Egypt) – with each group organized hierarchically according to estimated daily revenue. In principle, professors (müderrises) of the rank of 40 akçe were eligible for the lowest rank of these kadıships, and the hierarchy started from the kadıship of 150 akçe per day.¹⁵ Although this figure represented only a nominal value, it signified that a higher income could be expected from the kadıship offices than from the lower professorships. However, once a junior professor started a town kadıship career, he could not return to mainstream professorships or be promoted to mevleviyet kadıships. The career line of town kadıs was thus separate from the major career line of professorships that led to the highest positions in the ilmiye hierarchy. Although the latter career path was highly promising and prestigious, promotions took many years to achieve and the stipends were modest. The former was more lucrative in the short term, but the career prospects were poorer.

Town kadıs were appointed for a fixed term of office (20 months in Rumeli and Anadolu and 24 months in Egypt)¹⁶ and usually had to stay out of office for several years between appointments because of the inflated number of candidates.¹⁷ Out-of-office kadıs were still considered members of the kadıship hierarchy and were collectively called “kuzat” (plural for “kadı”).

Judgeships as revenue sources

Regarding the mevleviyet kadıs, who also had to wait a long time for promotion, the state took care to guarantee their sources of income when they were out of office. Out-of-office mevali, as well as ex-Kazaskers and ex-Şeyhülislams, were assigned nominal judgeships called arpalık,¹⁸ the most important measure of an “unemployment benefit”.¹⁹ The recipients of arpalık did not go to the places of their appointment, except as a punishment. Instead, they farmed out their duties to deputies, or naibs, and received incomes from the fees collected by the latter. Arpalıks were originally given to retired Şeyhülislams and Kazaskers as pensions and began to be widely applied during the seventeenth century. Many kadıships in the central towns of Anatolia and the Balkans – even kadıships of subprovince (sancak) centres, such as Ankara, Balıkesir, Gelibolu and Yanya – had already been turned into revenue sources for sinecurists before the eighteenth century. In a new development in the late eighteenth century, some of the lower (devriye) mevleviyet positions, such as those in Amid, Kayseri, Konya, Kütahya, Manisa, Sakız (Chios) and Trablusşam (Tripoli), were also converted to arpalıks. During the early nineteenth century, more than 70 kadıships were regularly reserved as arpalıks.²⁰

The tenure of professorships was not predetermined, and professors could be promoted from one medrese to another with no intervals. However, because professors’ stipends were relatively small²¹ and promotion to the mevleviyet ranks took a long time due to the congestion in the professorial ranks, high-ranking professors, and sometimes those from lower ranks, were also assigned nominal judgeships called maişet ²² to supplement their incomes. Surprisingly, according to a register prepared during the reign of Selim III, as many as 216 kadıships in the Asian provinces were reserved as maişets, whereas the number of town kadıships (mansıbs) available to kuzat members in the same provinces was 265.²³ About 60 per cent of the maişets were granted to professors, whereas 28 per cent were awarded to sons of ulema or prominent families without a müderris rank.²⁴ Some maişets were shared by brothers, while others were taken over by the sons of the former holders.²⁵ In the Balkans, another register prepared in the late 1800s shows that there were 39 maişet positions and 247 mansıbs.²⁶ Offices reserved as maişets were mostly kadıships of minor districts, although they also included a few well-known localities, such as Amasra, Muğla, Hasankeyf, Vize and Arnabud Belgradı (Berat).

It is striking that more than 300 kadıship positions were earmarked as arpalıks and maişets to provide mevali, professors and sons of ulema with sources of income. The maişet literally provided a livelihood (the original meaning of “maişet”) to ilmiye members. The nineteenth-century historian Ahmed Cevdet Paşa noted the state's priority: “Since providing a livelihood to the holders of higher ranks was a duty entrusted to the government (ashab-ı meratibin idaresi müterettib-i zimmet-i hükumet olduğundan), it became necessary to assign a kaza [kadıship] to müderrises and mevali in the name of maişet and arpalık.”²⁷ Because arpalıks and maişets were also distributed among the ulema families of Istanbul, they served to financially support the ilmiye institution as a status group. They were sometimes granted as a kind of orphan's pension, as in the case of Nurullah and his brother Mehmed Reşid, who petitioned in 1770 for the maişet kadıship of Ayvalık, previously held by their father, who had died without leaving them an inheritance. The Şeyhülislam approved their petition, whereby the brothers jointly (ale'l-iştirak) obtained the maişet.²⁸

While maişet kadıships could be given to high-ranking kuzat members, nominal kadıships, specifically called teʾbid, were routinely granted on a permanent basis (ber-vech-i teʾbid) to kuzat members who were allegedly “aged and sick” (pir ü alil).²⁹ Thus, teʾbids served as a kind of retirement pension. For example, Ahmed, the holder of the Timurcu kadıship, who renounced his office and career (mansıbını ve tarikini rızasıyla terk), obtained the kadıship of Bafra-maa-Samsun as a teʾbid.³⁰ In the abovementioned kadıship registers, eight and six kadıships were assigned as teʾbids in the Asian and Balkan provinces, respectively.³¹ The number of kadıships granted as teʾbids had been larger during the early eighteenth century,³² but it appears that many of them were later switched to maişets, which thus greatly increased in number by the end of the century.

These developments naturally led to the erosion of kadıship posts in the town kadıship hierarchy, giving rise to discontent among the less privileged kadıs.³³ In the early eighteenth century, the government tried to revoke some maişets and teʾbids. A ferman (imperial decree) dated 1724 mentioned that many kadıships had been granted to undeserving men (na-müstahaklara) as maişets, bringing misery to town kadıs, who had to wait many years to obtain a post. Orders had been issued since 1716 to the effect that the maişet and teʾbid kadıships should either be returned to the regular kadıship hierarchy after they became vacant or attached to adjacent kazas if the revenue obtained was too small to sustain the appointees.³⁴ However, aged and sick kadıs were permitted to receive teʾbids or maişets with the approval of the Kazasker, the Şeyhülislam and the sultan. In 1742, only further conversions of kadıships to maişets or teʾbids were prohibited,³⁵ and it is doubtful that this prohibition was strictly observed, as suggested by the large number of maişets during the reign of Selim III.

The proliferation of nominal kadıships – arpalıks, maişets and teʾbids – meant that the judicial offices had come to be treated as income-generating sources that could be distributed to the ulema, especially those of privileged status.³⁶ Because the state increasingly saw the kadıships as units of revenue rather than judicial-administrative units, they could be divided into halves or even into twelfths. One müderris was given one-third of the maişet kadıship of Tripoliçe (in Morea), while another requested half of one-sixth of the İmroz kadıship as a maişet.³⁷ In such cases, it is most likely that maişet shareholders received their shares through intermediaries, without being involved in the appointment of naibs.

Naibs everywhere

As progressively more kadıships were assigned as sources of revenue for sinecurist ulema and farmed out to naibs, even town kadıs began to delegate their duties to naibs, while, in principle, mevleviyet kadıs occupied their offices themselves until the Tanzimat. By the early nineteenth century, major town kadıships – for example, Silistre, Vidin, Manastır (Bitola), Sivas, Kastamonu, Denizli, Adana and Trabzon³⁸ – were normally contracted out to naibs. The diminishing availability of kadıship positions compelled kuzat members to seek alternative sources of income during the waiting period, and as long as their side (or perhaps principal) jobs yielded a regular income, it would have been more profitable for them to farm out the kadıship offices and receive two incomes when they were appointed.

In fact, it was not uncommon for kuzat members to serve as court scribes or stewards (kethüda) of ulema dignitaries while out of office.³⁹ Although town kadıs had been repeatedly ordered to fill their posts themselves, those working for ulema dignitaries were allowed to appoint deputies. While a 1733 order made an exception for the kadıs serving under the Kazaskers and the kadıs of Istanbul,⁴⁰ an 1802 decree demanded that town kadıs, except for those among the retinues (zümre-i etbaʿ) of high-ranking ulema and in state service (hidemat-ı devlet-i aliyemde müstahdem olanlar), administer their offices themselves.⁴¹ Most of these kuzat members probably did not work for ulema dignitaries by chance; rather, followers of the high-ranking ulema were enrolled in the kadıship hierarchy through their patrons’ intercession. The historian Cevdet Paşa stated that the ulema dignitaries had their followers appointed to kadıship positions and that the latter, because they were not judicial experts, had to administer their offices through naibs.⁴² There was also an order prohibiting the appointment of “servants and ignorant and unqualified sorts” (hizmetkâr ve cehele ve na-ehil makulesi) to kadıships,⁴³ which suggests that such appointments were, in fact, not unknown. Tatarcık Abdullah, one of the reformist ulema during the reign of Selim III, strongly criticized the enrolment in the kadıship hierarchy of “a group of servants and subordinates in the offices of ulema” (ulema dairesinde hademe ve etbaʿ güruhu) who were allegedly incompetent and ignorant.⁴⁴

The orders commanding town kadıs to go to their posts in person also allowed “sick and aged” kadıs to send deputies.⁴⁵ This signifies the official recognition of kuzat members who were incapable of serving as judges and therefore had to be substituted for by naibs. Tatarcık Abdullah even mentioned an encroachment of people from guilds and markets (esnaf ve suk makuleleri).⁴⁶ Later, in his reform treatise written during the reign of Mahmud II, İzzet Molla argued that the kadıship ranks peopled by guild members should be annulled.⁴⁷ Their accusations were not entirely groundless; we find booksellers, public bath operators (hamamcı) and a rice seller (pirinççi) among the kuzat members.⁴⁸ We cannot be certain whether they were kadıs-turned-tradesmen or tradesmen-turned-kadıs; both patterns are probable.⁴⁹

There were also what we might call “kuzat notables” who were based in provinces where they had economic and political influence. They occasionally served as kadıs/naibs in different places or farmed out their kadıships.⁵⁰

Moreover, it seems likely that people who were never trained in law entered the kadıship hierarchy. Their ignorance became a kind of cliché, and the eighteenth-century historian Şemdanizade Fındıklılı Süleyman wrote that even people who could not write received kadıship positions.⁵¹ A ferman of 1798 took this kind of accusation seriously and decreed that every applicant should write his name with his own hand at the time of application.⁵²

However, we should not presume that the late eighteenth-century kadıship hierarchy was replete with ignorant and incompetent judges. After all, the kuzat provided a pool of available competent judges. According to a ferman of 1759, naib positions should be assigned to “out-of-office kadıs (maʿzul kadılar) and müderrises who possess knowledge and virtue and are known for [their mastery of] the art of court documents (fenn-i sakk)”.⁵³ A similar stipulation was included in a 1795 ferman.⁵⁴ Although a detailed discussion of who became naibs is beyond the scope of this article, sources suggest that many were members of the kuzat or holders of a müderris rank.⁵⁵ As the availability of kadıship offices diminished, kuzat members sought opportunities to serve as naibs. For those with a müderris rank, being appointed naib was apparently a common means of acquiring an additional income and experience in the job before being promoted to the mevleviyet rank. Thus, the appointment of a naib meant that one office was shared by two ilmiye members.

By the early nineteenth century, deputization had become so widespread that Mehmed Emin İseviç from Bosnia stated with some exaggeration, “In all Ottoman lands, not one in a thousand among the original office holders (asıl mansıb sahibi) occupies [his office]; they are all deputized by naibs.”⁵⁶ While İseviç vehemently condemned the naibs for their ignorance and injustice,⁵⁷ the spread of deputization brought flexibility to kadıship offices, which were otherwise governed by a rigid hierarchy. Kadıships could change hands relatively freely, allowing individuals with different circumstances to share in the benefits accruing from kadıships.

The naibship contract

The iltizam of judgeships

The appointment of naibs by the original office holders involved the transfer of not only judicial authority but also the right to collect fees. In return, naibs were obligated to remit a significant part of their incomes to the office holders. This financial arrangement was key to the mechanism of deputization.

Fee revenues could be shared between the office holders and the naibs in two ways. The first, and apparently original, method was referred to as emanet (commission). The naibs would reserve for themselves a fifth (or a fourth) of the total revenue and pay the rest to the office holders.⁵⁸ The second method, prevalent by the late eighteenth century, was called iltizam, which was the term commonly used for tax farming. Office holders farmed out their judicial posts to naibs in return for the payment of a fixed sum, part of which was paid in advance.⁵⁹

In the practice of iltizam, naibs made two kinds of payments: harc-ı bab and mahiye (also called şehriye or aylık, meaning monthly payment). Whereas the latter was remitted monthly, the former was paid in advance, thus being equivalent to a down payment. This is attested to in an official document concerning the conversion of the revenues from the arpalıks of Dimetoka, Lefkoşa and Pravişte to funds for a newly created state school in 1839.⁶⁰ According to the report, the arpalık of Dimetoka yielded a harc-ı bab of 10,000 guruş once every six months and a mahiye of 2,500 guruş monthly.⁶¹ Likewise, for those of Lefkoşa and Pravişte, the harc-ı bab was paid biannually (13,500 and 800 guruş, respectively), and the mahiye was paid monthly (2,000 and 800 guruş, respectively). These cases also reveal that the advance payment was for a period of six months.

Several examples from the late eighteenth century can be drawn from the estate inventories of naibs, kadıs and arpalık holders recorded in the registers of the Kısmet-i Askeriye court in Istanbul, which was responsible for the registration and adjudication of the inheritances of members of the askeri (ruling class). For instance, before his death in 1779, the former kadı of Medina, Bülbülî Mustafa Efendi, held the kadıship of Keşan as an arpalık, for which his naib es-Seyyid İbrahim Efendi had paid an advance of 900 guruş and a monthly instalment of 60,000 akçe (equivalent to 500 guruş).⁶² The amount certainly varied according to the expected fee income, which presumably depended on the population and wealth of each kaza. In the late 1770s, the town kadıships of Köstendil and Şeyhlü (Çivril-Işıklı in western Anatolia) were farmed out for 180 guruş per month.⁶³ During the same period, the naib of Siroz (Serres) remitted as much as 4,000 guruş in two monthly instalments.⁶⁴ Remarkably, a remunerative office could yield more than ten times the amount that a small kaza could provide.

The iltizam system guaranteed the office holders a regular income; however, it obliged the naibs to recoup all instalments and expenditures from court fees, the amount of which was unpredictable, making their position highly precarious. From the state's point of view, the iltizam system was open to abuse. In their reform treatises written in the 1770s and 1780s, respectively, Süleyman Penah and Nihali argued against the iltizam of judicial offices and in favour of emanet.⁶⁵ In 1789, Selim III issued a ferman that prohibited the practice and ordered that the arpalık and maişet holders delegate their offices to naibs by way of emanet and give them one-fifth of the revenues. Likewise, sick or aged kadıs and those who faced serious and legitimate obstacles could award naibships on a one-fifth basis.⁶⁶ Apparently, however, the ferman had little effect, probably because the iltizam was an established practice guaranteeing the office holders’ income. In 1793, an order prohibited office holders from raising the instalments and advances above the amounts that their kazas could yield (kazaların tahammüllerinden ziyade).⁶⁷ In 1834, another order denounced the frequent replacement of naibs for the mere purpose of raising the instalments and advances and prohibited office holders from making any increase.⁶⁸ The government of Mahmud II tried to have the amounts of instalments and advances fixed and registered at the Şeyhülislam's offıce.⁶⁹ Although this signifies the state's increasing control of the judiciary, it was presumably necessitated by the great debasement of the Ottoman guruş (accompanied by inflation) during the reign of Mahmud II.⁷⁰ Notes written on the pages of tarik defteris, or personnel registers of ilmiye (tarik-i tedris) members, appear to indicate the arpalıks and the amounts of payments accruing from them.⁷¹ The cost of naibship generally increased during the 1820s and 1830s. For example, in the early 1800s, the holders of the arpalıks of Dimetoka and Lefkoşa received a monthly instalment of 1,500 and 1,100 guruş, respectively;⁷² by 1839, the instalments had been raised to 2,500 and 2,000 guruş, respectively, as mentioned earlier.

The six-month period of the harc-ı bab, as observed in the cases of Dimetoka, Lefkoşa and Pravişte in 1838, may have corresponded to the term of the naibship contract. Intervals between appointment letters (mürasele) for naibs registered in late eighteenth- and early nineteenth-century court registers in various towns suggest that six months was the norm for the term of the appointment, although there were significant variations.⁷³ When a naib's tenure was extended, he was sent a letter of renewal (ibka) at the end of the running term, presumably in exchange for another harc-ı bab. I will return to the significance of this six-month period in the following section. Here, suffice it to say that the short-term contracts made the naibs’ position precarious.

Intermediaries

Between office holders and naibs, agents played an indispensable role in the transfer of fees, as well as in the appointment procedures. Officials of the Kazaskers’ courts, called muhzır, generally acted as agents (kapıkethüdası) of kadıs and naibs. Sometime before 1775, an order was issued to prevent “riff-raff” (esafil) from intervening in “naibship matters” (umur-ı niyabet) and to prohibit anyone but the Kazasker muhzırs from acting as judges’ agents.⁷⁴ As a rule, each Kazasker employed 20 muhzırs, whose original duty was to deliver summonses to litigants and to bring them to the Kazasker's court (hence “muhzır” which meant a summoner or an usher). Muhzırs were also charged with investigating kadıs’ misconduct. Another important responsibility was to inform the kadıs of their appointments, for which they were entitled to a fee called müjde (“good news”) paid by the kadıs.⁷⁵

Presumably, the muhzırs’ intermediate role in the kadı appointment procedure and, as members of their staff, their closeness to the Kazaskers gave them leverage in judgeship matters. The estate inventories of kadıs and naibs show that muhzırs were entrusted with the financial transactions that took place between office holders and naibs. When Ebubekir Efendi, a member of the kuzat of Anadolu and holder of the Şeyhlü kadıship, died in 1779, the muhzır Ali Ağa paid his heirs three months’ instalments of the revenue of the Şeyhlü court after deducting the debt of the deceased for himself.⁷⁶ These three months were added to the term of office of the deceased. Likewise, after the Köstendil kadı Hüseyin Efendi died, a naib was appointed for four months to send instalments to the muhzır Bekir Ağa, who acted as an agent (kapıkethüdası). At the same time, Hüseyin Efendi left a huge debt to another muhzır, Ebubekir Ağa, amounting to 259,080 akçe (2,159 guruş), which was about three times the value of his property.⁷⁷ We can find many examples of naibs and kuzat members leaving debts to muhzırs. El-Hac İbrahim, a member of the Anadolu kuzat, owed 353,160 akçe (2,943 guruş), more than twice the value of his property, to the muhzır el-Hac Halil.⁷⁸ The 1781 estate inventory of the muhzır Mehmed Emin Ağa reveals that he had dealings with numerous judges simultaneously: he gave loans to 28 judges (naibs and kuzat members) and was indebted to seven judges.⁷⁹

Some narrative sources claim that muhzırs purchased kadıship offices from office holders and then sold them to naibs. In the early 1800s, es-Seyyid Mehmed Emin Behiç criticized the muhzırs’ dealings with kadıships, writing in his reform treatise that “the group of muhzırs should hereafter not be involved in the purchase and sale (ahz u iʿta) of kadı[ship]s and naib[ship]s” because “they, who were called kapıkethüdası, gave [i.e. sold] the appointment letter[s] … to sarrafs (moneylenders/financiers) in monthly instalments of five or ten guruş or in lump-sum payments of several hundred guruş, like deed[s] of tax farming (iltizam temessükü)”.⁸⁰ The sarrafs allegedly gave the letters to “those [naibs] who were ignorant and of an indeterminate sort (bir takım ceheleden ne idüği belirsiz)”.⁸¹

Although these criticisms might have been exaggerated, it is plausible that when kadıs were appointed to kadıships, they could obtain loans from muhzırs, who would, in turn, demand their repayment from the naibs in instalments. It is thus understandable that kadıs were appointed in advance, sometimes for terms beginning several years later.⁸² One may speculate that these appointees, called muvakkat,⁸³ could obtain credit from muhzırs or other agents in return for their appointment deeds, which provided a kind of security, well ahead of their actual terms of office. More importantly, muhzırs often undertook the appointment of naibs on behalf of office holders. Muhzırs’ involvement in the procedure had become widely accepted by the early nineteenth century. In 1827, a ferman stipulated that muhzırs be allowed to find naibs for kadıs who could not find competent naibs themselves but that they should not interfere in the naibship matters of kadıs who could.⁸⁴

In practice, the intermediaries were not always muhzırs. In his treatise written in the 1810s, İseviç wrote, with some exaggeration, that the Bosnian Cabizade Ali Efendi, who was staying in a medrese in Istanbul, and Mehmed Bey, a cavalry member who had not fought in a war for 20 years, had engaged in the trade (ticaret) of the naibships of 48 Bosnian kazas for 17 years. These offices were allegedly resold four or five times before they reached the naibs. İseviç also commented that the agents (kapıkethüdaları) purchased naibships from the original office holders (asıl mansıb sahibleri) for 50 guruş and amassed fortunes by selling them for 100 or more than 150 guruş.⁸⁵

As indicated in the above quotation from Behiç's treatise, sarrafs, who were almost exclusively non-Muslim, also intervened between office holders (or their agents) and naibs in the provinces. The estate inventory of the Keşan arpalık holder Bülbülî Mustafa Efendi shows that his naib es-Seyyid İbrahim Efendi had paid him monthly instalments in advance via the sarraf Avanes, which were refunded after Mustafa Efendi's death.⁸⁶ Likewise, the deceased naib of Siroz, İmamzade Mehmed Efendi, transferred his funds to Tıngıroğlu Kirkor, apparently an Armenian sarraf, in the form of poliçe (bill of exchange), from which the instalments were paid.⁸⁷

Indeed, sarrafs in the Ottoman Empire rose to prominence during the eighteenth century, when the state increasingly relied on them to finance the treasury.⁸⁸ With the introduction of lifetime tax farming (malikâne) in 1695, their role became particularly important because they provided tax farmers with loans for advance payments and transferred the annual tax revenue to the treasury. They also financed many high-ranking officials and local notables who needed large amounts of money to obtain official positions and manage their tax farms. Thus, it is not surprising that many kadıs and naibs were indebted to sarrafs. For example, Yorganî Mehmed Emin Efendi left a debt of 132,000 akçe (1,100 guruş) to the sarraf Çolak Mikail and a debt of 150,000 akçe (1,250 guruş) to the muhzır el-Hac Ebubekir Ağa when he died shortly after returning to Istanbul from his naibship at Modoniç (Mendenitsa) in Morea in 1780.⁸⁹ Likewise, when he died shortly before January 1796, the naib of Çağlayık (Dipotamos near Kavala) Hasan Efendi owed the sarraf Madros 378,120 akçe (3,151 guruş), which was more than twice the value of his estate.⁹⁰

As Behiç's treatise suggests, the sarrafs’ involvement in the appointment of naibs was subject to criticism. Earlier, in 1765, a conflict arose between the naib of İstanköy (Kos) Mehmed Efendi and the sarraf Avanes over the monthly instalments that the former claimed to have paid the latter.⁹¹ The case was referred to the Şeyhülislam, who reported to the Grand Vizier that the involvement of sarrafs and other non-Muslims in naibship matters (niyabet umuru) as agents (kapıkethüdalığı namına) was canonically abominable (emr-i mekruh) and should be prohibited. He demanded that a ferman be issued to ban the practice and punish sarrafs who did not comply. Several years later, Penah also condemned sarrafs and agents for buying and selling (alub viriyorlar) judgeship offices.⁹²

In Mahmud II's time, a consultative assembly concluded that the sale and purchase of the appointment letters of sharia judges (müraselat-ı şerʿiye) from the sarrafs’ offices through infidels (sarraf odalarından kefere yedleriyle verilüp alınmak) was in complete violation of the principles of sharia and had to be prohibited.⁹³ Despite these objections, however, the sarrafs were indispensable actors in financial transactions. Documents from the early Tanzimat period suggest that naibs generally paid commissions to agents (kapukethüdası harcı) and interest to sarrafs (sarraf güzeştesi), as well as monthly instalments and harc-ı babs.⁹⁴

As shown above, the proliferation of naibships brought profits to intermediaries such as muhzırs and sarrafs, who were indispensable actors in the operation of the iltizam of judicial offices. Their intervention in the appointment of naibs and the related financial transactions also suggests that some office holders merely received payments from them without being involved in the nomination of their deputy judges, while others appointed naibs based on patron-client relationships.

Fees for tax apportionment

Among the fees collected by judges,⁹⁵ fees for the apportionment of local taxes emerged as an important source of income for judges during the eighteenth century. In the early eighteenth century, taxes called imdad-ı seferiye (wartime contributions) and imdad-ı hazeriye (peacetime contributions) were introduced to support the maintenance of provincial governors’ retinues.⁹⁶ These taxes soon came to be levied regularly and were usually collected in two (sometimes three or four) instalments a year. For the collection of these and other types of taxes, such as avarız and nüzül,⁹⁷ judges were tasked with apportioning (tevzi) the tax burden among the townspeople and villagers in consultation with the local notables; at that time they routinely charged fees to be received by themselves, also collected from the taxpayers.

Particularly for the imdad tax collection, but also independently of tax levies, the local judge and notables prepared a list of local expenditure (masarif-i vilayet), which included the local administration's costs that had been covered by the notables, such as the accommodation, travel expenses and salaries of officials or couriers. The list also included the notables’ share (ayaniye or ayan ücreti) and the fees for the judge and other court employees. The judge's fee was called harc-ı defter (register fee), harc-ı imza (signature fee) or harc-ı mahkeme (court fee). The list of local expenditures (including taxes and fees) was generally known as tevzi defteri (tax apportionment register) but also as masarif-i vilayet defteri (register of local expenditures) or salyane defteri (register of yearly taxes). The tax apportionment registers were generally prepared twice a year, on the Day of Hızır (6 May) and the Day of Kasım (9 November), but sometimes more frequently, which was a cause for complaint.⁹⁸ During the late eighteenth and early nineteenth centuries, long lists of local expenditure were prepared, and the total amounts of costs, taxes, other extraordinary levies and fees were apportioned among the towns’ neighbourhoods and adjacent villages.

Boğaç A. Ergene examined the court fees charged by the courts of Çankırı and Kastamonu (including the fees received by the judges and court personnel) for the assessment of imdad and other taxes between the late seventeenth and mid-eighteenth centuries and found little correlation between the fees and the tax amounts.⁹⁹ Likewise, judging by several court registers from the districts of Anatolia and the Balkans, there was no universal rule for the rate of the judges’ fees during the latter half of the eighteenth century; rather, the fees seem to have been fixed in some districts. For example, the Tokat naib Süleyman İzzi charged 3,000 and 2,500 guruş as a register fee for the apportionment of local expenditures and other levies in January and May/June 1773, respectively. The total levy amounts were 35,369 guruş and 31,629 guruş, respectively.¹⁰⁰ In Ankara, 1,000 guruş was routinely charged as a harc-ı defter for each apportionment of local expenditures and taxes from 1784 to 1787, with the total amount of each levy ranging from 5,324 to 18,818.5 guruş.¹⁰¹

In addition to the register fee, judges often added a fee for iʿlams, or the judges’ reports to the Sublime Porte or provincial governors, to the tax apportionment registers. These reports were usually written for administrative purposes in response to an order or at the request of local inhabitants who wished to send petitions. The fee rate for iʿlams was also arbitrarily set. In May/June 1773, for example, the Tokat naib entered 2,500 guruş as an iʿlam fee in addition to 2,500 guruş as a register fee.¹⁰² In December 1775, the Denizli judge added a fee of 150 guruş for 14 iʿlams concerning various provincial matters, 100 guruş for an iʿlam prepared on behalf of five (adjacent) districts, and 200 guruş for six iʿlams “of great importance” (cesim iʿlam).¹⁰³ Unsurprisingly, the state deemed the fees for tax apportionment and iʿlams to be a potential source of abuse. In 1783, an imperial order prohibited judges from demanding fees for iʿlams concerning important provincial affairs (umur-ı mühimme zımnında verilen iʿlamlardan harc mutalebe olunmamak).¹⁰⁴ However, the order was not regularly followed.

In December 1792, the government issued a ferman that categorically prohibited the inclusion in the tax apportionment registers of the signature fee, the ayans’ share or other fees from which local judges and notables would profit.¹⁰⁵ The same ferman ordered that tax apportionment registers be prepared only twice a year and that a copy of each register be sent to the Porte for an audit.¹⁰⁶ However, the prohibition of fees was unrealistic. In June 1793, for example, the Üsküb (Skopje) naib Cisri İsmail added 1,500 guruş as a harc-ı iʿlamat (fee for reports), which was the same amount as that received by his predecessor as harc-ı iʿlamat ve harc-ı imza.¹⁰⁷ About six months after the original order, an amendment authorized judges to receive one para per one guruş (2.5 per cent) of the amount of local expenditure (including the taxes).¹⁰⁸ The court registers of Ankara indicate that the new regulation was soon implemented.¹⁰⁹ By 1797, the judges of Kastamonu and Karahisar-ı Sahib (Afyon) had set their tax apportionment fees at the prescribed rate.¹¹⁰

However, the new regulations were not observed everywhere. Although imperial orders to this effect were issued repeatedly – at least three times during the reign of Sultan Mahmud II (1815,¹¹¹ 1824¹¹² and 1834¹¹³) – the practice of levying fixed fees for tax apportionment continued in some localities. In April 1821, for example, the Manisa judge levied 3,000 guruş as a register fee in addition to 3,000 guruş as an iʿlam fee for preparing the list of six months’ local expenditure.¹¹⁴ In Kayseri, the judge received as much as 20,000 guruş twice a year during 1836 and 1838.¹¹⁵ Earlier, in November 1830, the Kayseri judge's share, indicated as “one para per one guruş”, amounted to 7,000 guruş. However, on the same occasion, the judge levied 13,000 guruş as an iʿlam fee.¹¹⁶ Thus, the total also amounted to 20,000 guruş. The 2.5 per cent rate was not implemented in Kayseri until May 1839.¹¹⁷

The non-observance of the orders testifies to the critical importance of the fees for tax apportionment and iʿlams for judges, particularly for naibs, who needed to recoup their payments to the office holders. These fees generated a regular income for judges, the amount of which was considerable and often fixed. For example, the abovementioned Tokat naib earned 7,950 guruş as register and iʿlam fees for the apportionments of the local expenditure and other levies in a lunar year (1186 ah/1772–73), during which he collected 3,145 guruş as fees for the division of estates,¹¹⁸ another lucrative source of income.¹¹⁹

It should be recalled that the period of the harc-ı bab, or down payment, which was the contract term for the naibship, was usually six months – that is, the same as the regular period for the preparation of the tax apportionment registers. In the case of Kayseri during the 1830s, the naib had to pay the arpalık holder 6,000 guruş in advance as a harc-ı bab and 2,400 guruş monthly,¹²⁰ with the six-month total cost thus amounting to 20,400 guruş. As mentioned above, the naib's biannual income from the fees accruing from tax apportionment amounted to 20,000 guruş, with which he was able to recuperate almost the entire cost of his appointment (except for fees for intermediaries). These fees, collected from the local inhabitants as part of the local taxes, constituted a significant part of judges’ revenue.

Conclusion

As we have seen, by the early nineteenth century, appointing naibs as deputy judges had almost become the norm in the Ottoman provinces, except for the mevleviyet judgeships. This development was a consequence of the congestion in the ilmiye hierarchy, on the one hand, and of the concern about the protection of the privileged status of the established ulema families, on the other. Both factors can be traced back to the late sixteenth century. The period between c. 1750 and 1839 saw the culmination of the transformation process of the ilmiye institution. Judgeships were increasingly treated as sources of revenue, as the office holders entrusted the “naibship matters” to intermediaries and received the payments from them. The intermediaries, in turn, sold the appointment letters to naibs, who collected fees and remitted the payments to the office holders. Thus, contracting out judges’ duties practically amounted to the sale of offices, as noted by contemporaries such as Penah, Behiç and İseviç. However, judicial offices were not sold as properties; only the judicial and administrative authorities and the right to collect revenues were transferred to naibs for limited periods (and were thus not inheritable).

We can see a striking parallelism between the delegation of judges’ authority to naibs and the practice of tax farming. Because the appointment of naibs involved assigning sources of state revenue to individuals, it is conceivable that this process was based on a mechanism parallel to the tax farming system, as the use of the term “iltizam” clearly indicates – all the more so because after the mid-eighteenth century, a significant proportion of their income was derived from taxes collected from local taxpayers in the name of apportionment fees rather than from fees paid by court clients. Advance payments, payments in instalments and financial transactions through sarrafs can also be observed in tax farming contracts. Because naibs were appointed by office holders and paid them fee revenues, they resembled the subcontractors who undertook the collection of taxes farmed out by the original iltizam (or malikâne) contractors. The latter, in turn, can be compared to the office holders.

A similar practice can also be found in the military-administrative institutions. During the eighteenth century, it became increasingly common for provincial governors, high-ranking officials and fortress commanders to be granted subprovince governor offices as additional sources of income, also called “arpalık”. The arpalık recipients farmed out their offices to substitute governors, called mütesellim, who were in charge of administering the sancaks and collecting the taxes due to the arpalık holders and the treasury.¹²¹ In this way, the mütesellims acted as both administrators and tax farmers. Obviously, as Halil İnalcık notes, the practice of arpalık was basically the same in the military-administrative and ilmiye institutions.¹²² Furthermore, governorships were often given in combination with tax farming rights since the late sixteenth century, and during the eighteenth century, some were combined with lifetime tax farming (malikâne), just like the offices of tax collectors-administrators (such as voyvodas and muhassıls), which were also often given as malikânes.¹²³ Appointments to such administrative-financial posts thus amounted to nothing less than the sale of offices, but it is important to note that they were operated through a mechanism of tax farming. Thus, during the eighteenth century, tax farming became a major instrument not only for collecting state revenue but also for allocating it to state officials. The judiciary was part of the Ottoman tax farming system. By adopting this practice of tax farming, judges and high-ranking ulema were integrated into the credit networks that connected the provinces with Istanbul as well as other provinces.

However, there was a difference between farming out judicial offices and tax farming in general. Whereas tax farming in the Ottoman Empire was adopted primarily as a means of raising state revenue, the revenue collected by naibs was not transferred directly to the state treasury but to the office holders who appointed them.¹²⁴ Although it is very likely that the arpalık and maişet recipients paid fees, and possibly bribes, to obtain the offices (as did the mevleviyet and town kadıship appointees), part of which may have been paid to the treasury,¹²⁵ the creation of arpalık and maişet offices was originally not meant to increase state revenue but to finance the ulema and their families in Istanbul.¹²⁶ The deputization of town kadıships also became common, partly because the high-ranking ulema granted their subordinates membership in the kadıship hierarchy, regardless of whether they performed actual judge duties. Overall, farming out judicial offices constituted a major economic basis for the upkeep of the ilmiye hierarchy and the domination of the privileged ulema families. Court revenues constituted the major financial resources of the ilmiye institution, and the appointment of naibs, who were often recruited from the ilmiye members, was a device for sharing out these resources between them and the elite ulema. While this naturally led to a heavier burden on local taxpayers, who had to pay both the naibs’ and office holders’ shares, the widespread practice of tax farming served to broaden the social group that had access to a share of the surplus.

Although the effect of farming out judicial offices on judges’ performance is outside the scope of this article, it may be noted that from the 1780s onwards, the state became less tolerant of the practice and repeatedly attempted to regulate the fee rates and the appointment of naibs. When the Tanzimat reforms began in 1839, the abolishment of the tax farming system was placed at the top of the agenda. This did not leave the judiciary institution unaffected. The state centralized the appointment of naibs and began to pay salaries to both naibs and kadıship office holders. The fees collected by judges were to be transferred to the provincial treasuries, while the tax apportionment fees – the most important sources of revenue – were abolished. Although the salary system for naibs was abandoned in 1841, office holders continued to receive their incomes from the state, not from the naibs, and the tax apportionment fees were not restored.¹²⁷ Thus, the naibs were separated from the office holders, ending the practice of farming out judicial offices. This also dealt a heavy blow to the power of the ilmiye institution, which lost its economic foundations.¹²⁸