A good example is presented by the tables discovered on the site of
Heraclea in the gulf of Tarentum, where land belonging to the temple
of Dionysos was leased to hereditary tenants about B.
Heraclea in the gulf of Tarentum, where land belonging to the temple
of Dionysos was leased to hereditary tenants about B.
Cambridge Medieval History - v1 - Christian Roman Empire and Teutonic Kingdoms
We see the cities of the first
and second centuries vying one with the other in local patriotism,
in the munificence of leading citizens, in generous contributions of
private men towards the welfare of poorer classes, public health and
order. The economic progress brought about by the establishment
of the Empire made itself felt primarily in the increased activity
and prosperity of city life. But threatening symptoms begin to
appear even in the second century A. D. Municipal self-government
bereft of its political significance, restricted to the sphere of local
interests and local ambitions, is apt to degenerate into corrupt and
spendthrift practices : the wealthier provincial citizens ruin themselves
by lavish expenditure on pageants and distributions, municipal enter-
prise in matters of building and philanthropy often turns out to be
extravagant and inefficient. The emperors find no other means of
remedying such defects than the institution of curators of different kinds
--curatores rei publicae, curatores kalendari—commissioners for the cor-
rection of the condition of free cities (ad corrigendum statum liberarum
civitatum). In the correspondence between Pliny and Trajan the
.
imperial commissioner is already seen to interfere in the most minute
CH. XIX.
## p. 554 (#584) ############################################
554
Growth of Centralisation
questions of city administration and, at the same time, he is constantly
applying for direction to his imperial master. The ideal of centralisation
is clearly expressed in this intimate intercourse of two well-meaning and
talented statesmen : the Emperor appears in the light of an omniscient
and all-powerful Providence watching over all the dealings and doings
of his innumerable subjects. In order to embody such an ideal the
central power had to surround itself with helpers and executive officers,
and Hadrian laid the foundations of a Civil Service more comprehensive
and better organised than the rudimentary administrative institutions
of the Commonwealth and of the early Empire. Later on Diocletian
and Constantine multiplied the number of bureaucratic organs and com-
bined them into one whole by the bands of constant supervision and
iron discipline. But even before this ultimate completion of bureaucracy
in the fourth century, in the very beginnings of the system of central
tutelage, a kind of vicious circle formed itself: central authority was
called upon to interfere on account of the deplorable defects of munici-
pal administration, while municipal life was disturbed and atrophied by
constant interference from above. It is impossible to say precisely what
was cause and what was effect in this case : the process was, as it happens
in many diseases, a constant flow of action and reaction. The jurists of
the third century find already a characteristic formula for corporative
town organisation in an analogy with the condition of a minor under
tutelage, and this analogy is followed up into all sorts of particulars as
to rights and duties. No wonder that for many citizens municipal life
loses its interest, that they try to eschew the burdens of unremunerated
and costly local administration, and that as early as the time of the
Severi compulsion has sometimes to be used to bring together a sufficient
number of unwilling magistrates and members of municipal senates
(Dig. , L. 1, 38, 6; L. 2, 2, 8).
A circumstance which in itself would have hardly been sufficient
to overthrow municipal organisation, certainly contributed to divert
people's minds from the customary trend of local patriotism and to make
the performance of certain duties difficult-I mean the spread of Chris-
tianity. Municipal institutions were intertwined with cults of Roman
and local gods including religious devotion to the Deity of the Emperors.
The new faith, on the other hand, did not admit of sacrifices or prayer
to the false gods of heathendome hence a conflict which did not admit of
a ready solution. Let us listen to the somewhat exaggerated statement
of Tertullian—“We concede,” he says, “ that a Christian may without
endangering salvation assume the honour and title of public functions-
if he does not offer sacrifices nor authorise sacrifices, if he does not
furnish victims, if he does not entrust anybody with the upkeep of
temples, if he does not take part in the management of their income, if
he does not give games either at his own or at the public expense, if he
does not preside at them, if he does not announce or arrange any festival,
## p. 555 (#585) ############################################
Christianity and Municipal Functions
555
if he avoids all kinds of oath and abstains, while exercising power, from
giving sentence in regard to the life or the honour of men, decisions as to
money matters being excepted; if he does not proclaim edicts, nor act
as a judge, nor put people into prison or inflict torture on them. But
is all this possible? " As a matter of fact the heathen State did certainly
not go out of its way to make all these exceptions possible, and conflicts
between law and religious conviction arose every day. On many occasions
Christians of a softer mould submitted to what they considered to be
inevitable, and performed most of the duties challenged by the fiery
African. The Church had to work out a penitentiary code for those
among its members who had sullied themselves by heathen practices (see
e. g. the canons of the Synod of Elvira in Spain). Sometimes again the more
firm among the Christians made a stubborn stand and were martyrised
for their protest as enemies of the Roman State. Altogether there can
.
be no doubt that the inherent contradiction between Christian religion
and the pagan practices of municipal life did put an extra strain on the
latter and could not but increase the disorder which was setting in.
The bold step taken by Constantine in recognising Christianity as a
state religion saved the situation to some extent, but it could not do
away at a stroke with all the pagan elements of municipal life: the
strife between religions assumed a new aspect, and as the vital connexion
between local self-government and local cults was never restored, that
unity of conception which marked antiquity when at its best had to
be replaced by a deep dualism tending towards new solutions of
political and moral problems. The greatest representative of conquering
Christianity, St Augustine, recognises the defeat of the material world
of antiquity and has to fashion his ideals according to a scheme of
two cities in which only the heavenly one appeals to his devotion and
energy.
Apart from this complication arising out of peculiarities of religious
history, the middle class of the citizens was undergoing a transformation
similar to that of the merchants and craftsmen. When the chaotic con-
ditions of the second half of the third century were arrested by the
statesmanship and military power of Aurelian and Diocletian, the policy
of compulsion was brought to bear with full weight on the well-to-do
inhabitants of cities. They were mostly not only houseowners in our
sense, but also owners of lands in the vicinity of the towns, although
distinctions which it is somewhat difficult for us at the present time to
formulate in detail were drawn between them and the possessores or land-
owners properly so called. However, the bulk of the well-to-do townsmen
was considered as a separate class, the curiales, out of which the actual
members of city senates, the decuriones, as well as its executive officials
and justices, were selected. Yet the connexion between the curiales
group and the actual office-holders was so close, there were so few
members of the former who had not to serve in one way or the other,
CH. XIX.
## p. 556 (#586) ############################################
556
The Curiales
that the enactments of the Codes currently confuse the two distinct
terms-curiales and decuriones. This confusion of itself points to
the overburdening of the middle class in the towns with service. And
we find indeed that its members are compelled to take over without
salary the various personal munera, or charges, of local government, to
administer the town, to act as petty justices, to take part in deputations,
to arrange games, to inspect public buildings, to provide fuel for baths,
to superintend postal and transport service (cursus publicus), to collect
rates, etc.
The most burdensome of their obligations were connected with the
collection of taxes. They were chiefly responsible for assessing the
town population, and out of their number were selected the inspectors
of public stores (horrea) and the decemprimi (Sexám potoi), who had
to collect the land tax and the tribute in kind (annona). Both
heathen and Christian authors testify to the crushing burden of taxation
during the fourth and fifth centuries, and the unfortunate curiales, who
were made the instruments of collection under the watchful and extor-
tionate supervision of state officials, were not only suffering from the
unpopularity of their functions, but had constantly to fall back on their
own resources in order to make good deficiencies and arrears. The
decemprimi were primarily responsible as collectors, and when they
vacated their office they had to nominate their successors and to
stand surety for their good behaviour. Not content with this the
provincial authorities commonly made the town, that is, primarily the
town senate (curia), liable for deficiencies in the full sum required. The
emperors sometimes intervened to forbid such collective liability
(C. Th. xi. 7, 2; C. Just. xi. 59, 16), but on other occasions they
enforced it in the most sweeping manner, as for instance when
Aurelian, and later on Constantine, decreed that the town senates
(ordines) should be made responsible for the taxes of deserted estates,
and in case they should be unable to support the burden it should be
distributed among the various local districts and estates (C. Just. XI.
59, 1).
In consequence of such oppressive burdens laid on the curiales we
witness the curious spectacle of widely spread attempts on the part of
the citizens to escape into more privileged professions—into the clergy
or the army—and even of their flight into the country, where they were
sometimes glad to live and work as simple coloni. The Codex Theo-
dosianus and the Codex Justinianus are full of enactments forbidding the
curiales to leave the place of their birth, condemning them to a hereditary
subjection to municipal charges (munera), in fact turning their con-
dition into a kind of serfdom. All the sons of a curialis had to follow
their father's career, they were deemed curiales from the date of their
birth (C. Th. xII. 1, 122). If there was not a sufficient number of
persons of this class to uphold all its obligations, owners of estates
## p. 557 (#587) ############################################
The Curia and Compulsion
557
ressions
(possessores), denizens (incolae), well-to-do plebeians were pressed into it.
The wretched townspeople were suspected of wanting to escape by flight
from their onerous condition and had to apply to the governor for special
leave of absence when they left the place of their birth for the sake of
business or travel. If one of them wanted to change permanently his
place of abode he was bound to provide a substitute or to leave a great
part of his fortune to the curia. This epoch of imperial legislation does
away, for fiscal and administrative purposes, with some of the funda-
mental principles of Roman law in its better times. A curialis, though
a Roman citizen in the exercise of full civil rights, is unable freely to
bequeath his fortune to another Roman citizen belonging to a different
city: property passing out of the jurisdiction of one curia into that of
another is charged with a heavy special payment to the former senate, and
in fact remains “ obnoxious” to it (C. Th. xii. 1, 107); a later constitu-
tion enacted that at least one-fourth of the property should remain in
the hands of the original curia. If a curialis wanted to sell land or
slaves employed in the cultivation of his estate he had to obtain leave
from the governor of the province (C. Th. xII. 3, 1). Heiresses were
much hampered in the right to marry strangers outside their late father's
curia and had in such cases to relinquish one-fourth part of their
property.
The climax of this legislation of servitude is reached when the
emperors actually condemn people for some crime or misdemeanour to be
enrolled as members of a curia : sons of veterans, e. g. who, by chopping
off their fingers, had rendered themselves unfit to serve in the army,
were stuck into the curia, and the same fate awaited unworthy
ecclesiastics.
The policy of compulsion and the spread of caste were undoubtedly
responsible to a great extent for another social process of great moment,
namely, for the formation of the colonate, an institution destined to play
an important part in medieval peasant life. Its roots stretch far back
into the earlier history of Roman husbandry. Columella, a writer on
agriculture of the first century A. D. , instructs his readers that it is
advantageous for owners of estates of insufficient fertility and difficult
cultivation to employ free farmers, coloni, instead of slaves. The
tenants were sometimes settled on the métayer system (colonia partiaria),
the farmer sharing crops with the owner. Juridically the relation was
regulated by the rules of the law of lease (locatio conductio) and the Digest
often refers to the various problems arising under this contract; custom
and tacit agreement played a great part in the treatment of such
questions in practice. By the side of contractual relations between
private landlords and tenants stood administrative regulations as to the
management of vast domains of the Crown and of the private patrimony
of the Emperor. Crowds of tenants were settled on these estates who
had to look for a guarantee to the possession of their holdings rather to
CH. XIX.
## p. 558 (#588) ############################################
558
The Colonate
the equity and properly understood interest of their imperial masters
than to formal contractual right. Lastly, a good many slaves were put
into a position similar to that of the tenants of free birth, and as a
matter of fact, it got to be more and more difficult to distinguish
between coloni by contract and quasi-coloni by long usage and customary
tenure. One trait which tended to reduce the distance between the
different groups was the heavy indebtedness of most free farmers: they
had often to take their agricultural outfit from the landowner along
with the farm ; in case of economic difficulties they turned to him as to
their natural protector and a capitalist near at hand, and when once
debts had been made, it was exceedingly difficult to pay them off.
Fourth-century legislation approaches these relations in its usual
despotic manner. A law of Constantine dated A. D. 332 gives us the first
glimpse of a new order of men standing between the free and the unfree
and treated, in fact, as serfs of the glebe. It runs thus : “With whom-
soever a colonus belonging to someone else (alieni juris) may be discovered,
let the new patron not only restore the colonus to the place of his
birth (origini), but let him also pay the tax for the time of his absence.
As for the coloni themselves who contemplate flight, let them be put
into fetters after the manner of slaves, so that they should perform
duties worthy of freemen on the strength of a servile condemnation”
(C. Th. v. 17, 1). But from Constantine again we have another en-
1
actment marking the other side of the condition, namely, the legal
protection afforded to the colonus against possible exactions. About
A. D. 325 the Emperor laid down in a rescript to the vicarius of the East
that, “a colonus from whom a landlord exacted more than it was
customary to render and than had been obtained from him in former
times, may apply to the judge nearest at hand and produce evidence of
the wrong. The person who is convicted of having claimed more than
he used to receive shall be prohibited to do so in the future after having
given back what he extorted by illegal superexaction” (C. Just. xi. 50, 1).
The legal protection afforded to the coloni was not suggested by prin-
ciples of humanity, but by the necessity of keeping up at least some portion
of the previous personal freedom of these peasants in order to safeguard
the interest of the State which looked upon this part of the population as
the mainstay of its fiscal system. If the emperors made light of the
right of free citizens to choose their abode and their occupations as they
pleased and did not scruple to attach the coloni to their tenures, the
absolute right of landowners to do what they pleased with their land
was not more sacred to them. Constantine imposed the most stringent
limitations on their power of alienating plots of land. “ If someone
wants to sell an estate or to grant it, he has not the right to retain
coloni by private agreement in order to transfer them to other places.
Those who consider coloni to be useful, must either hold them together
with the estates or, if they despair of getting profit from these estates,
## p. 559 (#589) ############################################
Rise of Rustic Classes
559
let them also give up the coloni for the use of other people” (C. Th.
XIII. 10, 3; A. D. 357). In, the reign of Valentinian, Valens and
Gratian, about A. D. 375, this principle is characteristically extended
to the very slaves. “As born cultivators (originarii) cannot be sold
without their land, even so it is forbidden to sell agricultural slaves
inscribed in the census rolls. Nor must the law be evaded in a fraudu-
lent manner, as has been often practised in the case of originarii,
namely, that while a small piece of land is handed over to the buyer, the
cultivation of the whole estate is made impossible. But if entire estates
or portions of them pass to a new owner, so many slaves and born
cultivators' should be transferred at the same time as used to stay with
the former owners in the whole or in its parts” (C. Just. xl. 48, 7).
The fiscal point of view is clearly expressed on many occasions.
Valentinian and Valens entrust the landowners with the privilege of
collecting the taxes of their coloni for the State with the exception of
those tenants who have besides their farms some land of their own
(C. Th. xi. 1, 14). This right and duty might be burdensome, but
it certainly gave the landlords a powerful lever in reducing their free
tenants to a condition of almost servile subjection. Perhaps the most
drastic expression of the process may be seen in the fact that coloni lose
their right to implead their masters in civil actions except in cases of
superexaction. In criminal matters they were still deemed possessed of
the full rights of citizens (C. Just. xi. 50, 2).
But it would be wrong to suppose that the condition of the farmers
in the fourth and fifth centuries is characterised by mere oppression and
deterioration. In the case of rustic slaves it is clearly seen that their
11
fate was much improved by the course of events and by legislation.
Their masters lost part of their former absolute authority because the
State began to supervise the relations between master and slave for the
sake of keeping cultivators to their work and thereby ensuring the
coming in of taxes. Considerations of a similar nature exerted an
influence on the fate of coloni, and they made themselves felt not only
in social legislation, but also in husbandry. The tremendous agrarian
crisis through which the Empire was passing could not be weathered by
mere compulsion and discipline. On a large scale, it was a case like the
one described in Columella's advice to landowners: if you want to get
your land cultivated under difficult conditions, do not try to manage it
by slave labour and direct orders, but entrust it to farmers. The great
latifundia of earlier times were parcelled up into small plots, because
only small cultivators could stand the storm of hostile invasion, of dis-
location of traffic, of depopulation. Nor was it possible for the landowner
to demand rack-rents and to avail himself of the competition between
agricultural labourers. He had to be content if he succeeded in providing
his estates with tenants ready to take care of them at moderate and
customary rents, and both sides—the lord and the tenant-were interested
CH, XIX.
## p. 560 (#590) ############################################
560
Tendency to Emphyteusis
in making the leases hereditary if not perpetual. Thus there is a second
aspect to the growth of the colonate. The institution was not only one of
the forms of compulsion and caste legislation, but also a “meliorative"
device, a means for keeping up culture and putting devastated districts
under the plough. Among the earliest roots of the colonate we find the
licence given to squatters and peasants dwelling in villages adjoining
waste land to occupy such land and to acquire tenant right on it by the
process of culture. The Emperor Hadrian published a general enact-
ment protecting such tenants on imperial domains, and the African
inscriptions testify that his regulations did not remain a dead letter.
This feature-cultivation of waste and amelioration of culture-is
seldom expressed in as many words in the enactments of the Codex
Theodosianus and of the Codex Justinianus, because the laws and
rescripts collected there are chiefly concerned with the legal and fiscal
aspects of the situation. The legislators had no occasion to speak
directly of low rents and remissions in their payment. Yet even in
these documents some indications of the “emphyteutic” tendency
may be gleaned. I will just call attention to one of the earliest
“constitutions” relating to the colonate, namely, to the decree of
Constantine of A. D. 319 (C. Just. xi. 63, 1). It is directed against
encroachments of coloni on the lands of persons who held their estates
by the technical title of emphyteutae, of which we shall have to say more
by and by. It is explained that coloni have no right to occupy lands for
the culture of which they have done nothing. “By custom they are
allowed to acquire only plots which they have planted with olives or
vines. ” This ruling is entirely in conformity with the Lex Hadriana de
rudibus agris and testifies to the peculiar right of occupation conceded to
cultivators of waste.
The technical requirement of making plantations of olive trees or
vines corresponds exactly to the Greek expression DUTevel which reap-
pears in the term emphyteusis so much in use in the later centuries of
the Empire.
Of course, cultivation of the waste was not restricted in
practice to the rearing of these two kinds of useful trees, nor can the
view so clearly formulated in this case have failed to assert itself on other
occasions, especially in the relations between landlord and tenant. But
the luxuriant growth of emphyteusis as a widely prevalent contract is.
very characteristic of the epoch.
The emphyteusis of the later Empire is distinguished from other
leases by three main features : it is hereditary; the rent paid is fixed
and generally slight; the lessee undertakes specific duties in regard to
amelioration on the plot and may lose the tenancy if he does not carry
them out. These peculiarities were so marked that there was consider-
able doubt whether the relation of emphyteusis was originated by the
sale of a plot by one owner to the other with certain conditions as to the
payment of rent, or by a downright lease. A constitution of Zeno,,
## p. 561 (#591) ############################################
Epibole
561
а
published between 476 and 484, decided the controversy in the sense
that the contract was a peculiar one, standing, as it were, between a sale
and a lease (C. Just. iv. 66, 1). The meaning of such a doctrine was, of
course, that in many cases rights arose under cover of dominium (Roman
absolute property), which amounted in themselves to a new hereditary
possession, and arising from the labour and capital sunk by the subordi-
nate possessor into the cultivation of the estate, and leaving a very small
margin for the claims of the proprietor. Such hybrid legal relations do
not come into being without strong economic reasons, and these reasons
are disclosed by the history of the tenure in question. Its antecedents
go far back into earlier epochs, although the complete institution was
matured only towards the end of the fifth century. One of the roots of
emphyteusis we have already noticed in the occupation of waste land by
squatters or cultivators dwelling on adjoining plots. In the fourth and
fifth centuries the emperors not only allow such occupation, but make
it a duty for possessors of estates in a proper state of cultivation to take
over waste plots. This is the basis of the so-called epibole (érißoln),
of the “imposition of desert to fertile land," an institution which arose
at the time of Aurelian and continued to exist in the Byzantine Empire.
It is worth noticing that a law of Valentinian, Theodosius and Arcadius
gives every one leave to take possession of deserted plots; should the
former owner not assert his right in the course of two years and com-
pensate the new occupier for ameliorations, his property right is deemed
extinguished to the profit of the new cultivator (C. Just. xi. 59, 8).
In this case voluntary occupation is still the occasion of the change of
ownership, but several other laws make the taking over of waste land
compulsory. An indirect but important consequence of the same view
may be found in the fact that the right of possessors of estates to
alienate portions of the same was curtailed: they were not allowed to
sell land under profitable cultivation without at the same time disposing
of the barren and less profitable parts of the estate; the Government
took care that the “nerves” of a prosperous exploitation should not be
cut.
A second line of development was presented by leases made with the
intention of ameliorating the culture of certain plots. The practice of
such leases may be followed back into great antiquity, especially in
provinces with Greek or Hellenised population; and it is on such estates
that the terms putevelv, emphyteusis first appear in a technical sense.
A good example is presented by the tables discovered on the site of
Heraclea in the gulf of Tarentum, where land belonging to the temple
of Dionysos was leased to hereditary tenants about B. c. 400 on the
condition of the construction of farm buildings and the plantation of
olives and vines! . Emphyteutic leases of the same kind, varying in
Dareste, Houssoulier et Reinach, Recueil d'inscriptions juridiques grecques,
1. Pp. 201 ff.
>
1
C. MED, H. VOL. I. CH. XIX.
36
## p. 562 (#592) ############################################
562
Jus perpetuum
details, but based on the main conditions of amelioration and hereditary
tenancy, have been preserved from the second century A. D. in the
Boeotian town of Thisbe'. Roman jurists, e. g. Ulpian, mention distinctly
the peculiar legal position of such “emphyteutic” tenancies and there
can be no doubt that as the difficulties of cultivation and economic inter-
course increased, great landowners, corporations and cities resorted more
and more to this expedient for ensuring some cultivation to their estates
even at the cost of creating tenancies which restricted owners in the
exercise of their right.
A third variety of relations making towards the same goal may be
observed in the so-called perpetual right (jus perpetuum). It arose chiefly
in consequence of conquest of territories by the Roman State. The title
of former owners was not extinguished thereby but converted into a
possession subordinate to the superior ownership of the Roman people
and liable to the payment of a rent (vectigal, canon). The distinction
between Roman land entirely free from any tax and provincial land
subject to tax or rent was removed in the second century A. D. when land
in Italy was made subject to taxes. But the legal conception of tenant
right subject to the eminent domain of the emperor remained and the
jus perpetuum continued as a special kind of tenure on the estates of
cities and of the Crown, as we should say nowadays, until it was merged
into the general right of emphyteusis together with the two other species
already mentioned.
These juridical distinctions are not in the nature of purely technical
details. The great need of cultivation and the wide concessions made
in its interest in favour of effective farming are as significant as the
subdivision of ownership in regard to the same plot of land, one
person obtaining what may be called in later terminology the useful
rights of ownership (dominium utile), while the other detains a superior
right nevertheless (dominium eminens). In this as in many other points
the peculiarities of medieval law are foreshadowed in the declining
Empire.
This observation applies even more to the part assumed by great
landowners in the fourth and fifth centuries. A great estate in those
times comes to form in many respects a principality, a separate district
for purposes of taxation, police and even justice. Already in the first
century A. D. Frontinus speaks of country seats of African magnates sur-
rounded by villages of their dependents as if by bulwarks. By the side
of the civitas, the town forming the natural and legal centre of a district,
appears the saltus, the rural, more or less uncultivated district organised
under a private lord or under a steward of the emperor. The more
important of these rural units are extraterritorial-outside the juris-
diction and administration of the towns. By and by the seemingly
! omnipotent government of the emperor is driven by its difficulties to
1 Dittenberger, Programme of the University of Halle, 1881.
## p. 563 (#593) ############################################
Libanius on Patronage
563
concede a large measure of political influence to the aristocracy of large
landowners. They collect taxes, carry out conscription, influence
ecclesiastical appointments, act as justices of the peace in police matters
and petty criminal cases. The disruptive or rather the disaggregating
forces of local interests and local separatism come thus to assert
themselves long before the establishment of feudalism, under the very
sway of absolute monarchy and centralised bureaucracy.
If the formation of the colonate means the establishment of an order
of half-free persons intermediate between free citizens and slaves, if
emphyteusis amounts to a change in the conception of ownership, the
rise of the privileges and power of landowners corresponds to the
appearance of a new aristocracy which was destined to play a great
part in the history of medieval Europe.
Besides what was directly conceded to these lords by the central
authority we must reckon with their encroachments and illegal dealings in
regard to the less favoured classes of the population. The State had to
appeal to private persons of wealth and influence because it was not
able to transmit its commands to the inert masses of the population in
any other way. Aristocratic privilege was from this point of view a con-
fession of debility on the part of the Empire. But the inefficiency of
the State was recognised by its subjects as well and, as a natural result,
they applied for protection to the strong and the wealthy, although
such a recourse to private authority led to the infringement of public
interests and to the break-up of public order. Private patronage
appears as a threatening symptom with which the emperors have
to deal. In the time of undisputed authority of the commonwealth
it was a usual occurrence that benefactors of a town or village,
persons who had erected waterworks, built baths, or founded an
alimentary institution for destitutes should be honoured by the title of
patroni and by certain privileges in regard to precedence and ceremonial
rights. The emperors of the fourth and of the fifth century had to
forbid patronage because it constituted a menace to law and to public
order. We hear of cases of “maintenance"; parties to a trial being
“"
protected by powerful patroni, who seek to turn the course of justice in
favour of their clients. Libanius, a professional orator of the epoch
of Valentinian II and Theodosius I, gives a vivid description of the
difficulties he had to meet in a suit against some Jewish tenants of his
who refused to pay certain rents according to ancient custom. If we
are to believe our informant, they had recourse to the protection of a
commander of troops stationed in the province, and when Libanius came
into court and produced witnesses, he found the judge so prepossessed
in favour of his opponents that he could not get a hearing, and his wit-
nesses were thrown into prison or dismissed. In another part of the
same speech Libanius inveighs against officers who prevent the collection
of taxes and rents and favour brigandage. There may be a great deal
CH, XIX.
36-2
## p. 564 (#594) ############################################
564
Patronage. Special Authorities
of exaggeration in the impassioned account of the Greek rhetor, but the
principal heads of his accusation can be confirmed from other sources,
especially from imperial decrees. A company of soldiers gets quartered
in a village and when the curiales of the next town appear to collect
taxes or rents, they are met by violence and may be called fortunate if
they escape without grievous injury to life and limbs. In the Theo-
dosian Code enactments directed against patronage in villages go so far
as to forbid the acquisition of property in a rural district by outsiders
for fear the strangers should prove powerful people capable of opposing
tax collectors. According to the account of Salvian, a priest who
lived in the fifth century in southern Gaul, patronage had become quite
prevalent in that region. People turned to private protection out of
sheer despair and surrendered their land to the protector, rather than
face the extortions of public authorities. There can be no doubt that
patrons and protectors of the kind described, if they were helpful to
some, were dangerous and harmful to others, and the State in the fourth
and fifth centuries had good reasons to fight against their influence. But
the constant repetition of the same injunctions and prohibitions proves
that the evil was deeply rooted and difficult to get rid of. The Sisy-
phean task undertaken by the Government in its struggle against abuses
and encroachments is well illustrated by various attempts to create
special authorities to repress the exactions of ordinary officers and
to correct their mistakes.
One of the principal expedients used by Diocletian and his successors
was to institute a special service of supervising commissaries under the
names of agentes in rebus and curiosi. They were sent into the provinces
more particularly to investigate the management of the public post, but,
as a matter of fact, they were employed to spy on governors, tax col-
lectors and other officials. They received complaints and denunciations
and sometimes committed people to prison. A decree of Constantius
tries to restrict the latter practice and to impress on these curiosi the
idea that they are not to act in a wanton manner but have to produce
evidence and to communicate with the regular authorities (A. D. 855,
C. Th. vi. 29, 1). But the very existence of such a peculiar insti-
tution was an incitement to delation and arbitrary acts, and in 395
Arcadius and Honorius try to concentrate the activity of the agentes in
rebus on the inspection of the post. “They ought not to levy illicit
toll from ships, nor to receive reports and statements of claims, nor to
put people into prison " (C. Th. vi. 29, 8). The service of the agentes
and of the curiosi was deemed to be as important as it was dangerous,
and those who went through the whole career were rewarded by the
high rank of counts of the first class. It is hardly to be wondered
at that these extraordinary officials provided with peculiar methods of
delation did not succeed in saving the Empire from the corruption of
its ordinary officers.
## p. 565 (#595) ############################################
The Church
565
And yet the emperors found that the only means of exercising some
control over the abuses of the bureaucratic machinery and the oppression
of influential people was in pitting extraordinary officials against them.
The defensor civitatis was designed to act as a protector of the lower
orders against such misdeeds. The office originated probably in voluntary
patronage bestowed on cities by great men, but it was regularised and
made general under Valentinian I. An enactment of Gratian, Valen-
tinian II and Theodosius lays chief stress on the protection afforded by
defensores to the plebs in regard to taxation. The defensor ought to be
like a father of the plebs, to prevent superexaction and hardships in the
assessment of taxes both in regard to the town population and to rustics,
to shield them against the insolence of officials, and the impertinence of
judges. Not merely fiscal oppression was aimed at, but also abuses in
the administration of justice, and the emperors tried to obviate the
evils of a costly litigation and inaccessible tribunals by empowering the
defensores to try civil cases in which poor men were interested. It was
somewhat difficult to draw the line between such exceptional powers and
ordinary jurisdiction, but the Government of the later Empire had often
to meet similar difficulties. An important privilege of the defensores
was the right to report directly to the emperor, over the governor of
the province: this was the only means for making protests effective, at
least in some cases.
As to the mode of electing the defensores we notice
some variation: they are meant to represent the population at large and
originally the people took part in the election, though it had to be con-
firmed by the emperors. In the fifth century, however, the office became
a burden more than an honour, a quantity of petty police functions and
formal supervision was tacked on to it, and the emperors are left no
choice but to declare that all notable citizens of the town have to take
it in turn. This is certainly a sign of decline and there can be no doubt
that the original scope of the institution was gradually lost sight of.
A third aspect of the same tendency to counterbalance the evil 3.
working of official administration by checks from outside forces may be
noticed in the political influence assigned to the Church. Here un-
doubtedly the emperors of the fourth and fifth centuries reached firm
ground. It was not a mere shuffling of the same pack of cards, not a
pitting of one official against the other by the help of devices which at
best answered only for a few years. It was an appeal from a defective
system to a fresh and mighty force which drew forth the best capabilities
of the age and shaped its ideals. If anywhere, one could hope to find
disinterested effort, untiring energy and fearless sense of duty among the
representatives of the Church, and it is clear that both government
and people turned to them on especially trying occasions. We need
not here speak of the intense interest created by ecclesiastical con-
troversies or of the signal evidence of vigorous moral and intellectual
life
among
the clergy. But we have to take these facts into account if
hurch
CH. XIX.
## p. 566 (#596) ############################################
566
Political action of the Church
we want to explain the part assumed by Church dignitaries in civil
administration and social affairs. A significant expression of the con-
fidence inspired in the public by the ecclesiastical authorities may be
seen in the custom of applying to them for arbitration instead of seeking
redress in the ordinary courts. The custom in question had its historical
roots in the fact that before the recognition of Christianity as a state
religion by the Empire the Christians tried to abstain as far as possible
from submitting disputes and quarrels to the jurisdiction of pagan
magistrates. There was a legal possibility of escaping from such inter-
ference of pagan authorities by resorting to the arbitration of persons
of high moral authority within the Church, especially bishops. When
Christianity conquered under Constantine, episcopal arbitration was
extended to all sorts of cases and an attempt was made, as is shewn by
two enactments of this emperor (Const. Sirmond. xvII. ; 1. ) to convert it
into a special form of expeditious procedure, well within reach of the
poorer classes. Episcopal awards in such cases were exempted from the
ordinary strict forms of compromise accompanied by express stipulation;
the procedure was greatly simplified and shortened, the recourse of one
party to the suit to such arbitration was held to be obligatory for the
other party. At the close of the fourth century Arcadius considerably
restricted this wide jurisdiction conceded to bishops and tried to reduce
it to voluntary arbitration pure and simple. But the moral weight of
their decisions was so great, that the ecclesiastical tribunals continued
to be overwhelmed with civil cases brought before them by the parties.
Not only Ambrose of Milan, who lived in the time of Theodosius the
Great, but also Augustine, who belongs chiefly to the first quarter of
the fifth century, complain of the heavy burden of judicial duties
which they have to bear.
The bishops had no direct criminal jurisdiction, but through the
right of sanctuary claimed by churches and in consequence of the
general striving of Christian religion for humanity and charity, they
were constantly pleading for grace, mitigation of sentences, charitable
treatment of prisoners and convicts, etc. Panic stricken and persecuted
persons and criminals of all kinds flocked for refuge to the churches;
famous cathedrals and monasteries presented curious sights in those
days: they seemed not only places of worship but also caravan-
serais of some kind. Fugitives camped not only in the churches but at
a distance of fifty paces around them. Gangs of these poor wretches
accompanied priests and deacons on their errands and walks outside the
church, as in such company they were held to be secure from revenge
and arrest. The Government restricted the right of fiscal debtors to take
sanctuary in order to escape from the payment of taxes, but in other
respects it upheld the claims of ecclesiastical authority. Certain com-
promises with existing law and custom had undoubtedly to be effected.
The Church did not attempt, for instance, to proclaim the abolition of
slavery. It merely negotiated with the masters in order to obtain
## p. 567 (#597) ############################################
î4
The Church and moral police
5673
promises of better treatment or a pardon of offences. But it coun-
tenanced in every way the emancipation of slaves and protected freed-
men when once manumitted. The Acts of Councils of the fourth
century are full of enactments in these respects (e. g. Council of Orange,
c. 7; Council of Arles, II. cc. 33, 34).
Another domain in which the authority of the bishops found ample
scope for its assertion was the sphere of moral police, if one may use the
expression. To begin with, pious Christians were directed by the Gospel
to visit prisoners, and this commandment of Christ became the foundation
for a supervision of the Clergy over the state of prisons, their sanitary
conditions-baths, food, the treatment of convicts, etc. In those times
when terrible need and famines were frequent, parents had the legal
right to sell their children directly after their birth (sanguinolenti)
and a person who had taken care of a foundling was considered its
owner. It is to ecclesiastical authorities that the emperors turn in
order to prevent these rights from degenerating into a ruthless kid-
napping of children. The Church enforces a delay of ten days in order
that parents who wish to take back their offspring should be able to
formulate their claims. If they have not done so within the days of
respite, let them never try to vindicate their flesh and blood any more:
even the Church will treat them as murderers (Council of Vaison,
cc. 9, 10). Again ecclesiastics are called upon to prevent the sale of
human beings for immoral purposes : no one ought to be forced to
commit adultery or to offer oneself for prostitution, even if a slave,
and bishops as well as secular judges have the power to emancipate
slaves who have been subjected by their masters to such ignominious
practices. They are also bound to watch that women, either free or
unfree, should not be constrained to join companies of pantomime actors
or singers against their will (C. Just. 1. 4, 10).
In conclusion it may be useful to point out once more that the social
process taking place in the Roman Empire of the fourth and fifth
centuries presented features of decline and of renovation at the same
time. It was brought about to a great extent by the increased influence
of lower classes and the influx of barbarous customs, and in so far it
expresses itself in an undoubted lowering of the level of culture. The
sacrifice of political freedom and local patriotism to a centralised
bureaucracy, the rigid state of siege and the caste legislation of the
Constantinian and Theodosian era produced an unhealthy atmosphere of
compulsion and servility. But at the same time the Christian Church
asserts itself as a power not only in the spiritual domain, but also in the
legal and economic sphere. Society falls back to a great extent on the
lines of local life and of aristocratic organisation, but the movement in
this direction is not a merely negative one: germs appear which in their
further growth were destined to contribute powerfully towards the
formation of feudal society.
CH, XIX.
## p. 568 (#598) ############################################
568
CHAPTER XX.
THOUGHTS AND IDEAS OF THE PERIOD.
The fourth and fifth centuries A. D. were marked by the rise of no
new school of metaphysics and were illustrated by only one pre-eminent
philosopher. In theology the period can boast great names, perhaps the
greatest since the Apostles of Christ, but in philosophy it is singularly
barren. Plotinus (A. D. 205-270), the chief exponent and practical
founder of that reconstruction of Greek philosophy known as Neo-
platonism, had indeed many disciples; but Proclus the Lycian (A. D.
412-485) is the only one of them who can be said to have advanced in
any marked degree the study of pure thought. The mind of the age
was inclined towards religion, or at least religious idealism, rather than
towards metaphysics. Nor is this matter for surprise when we remember
the spiritual revival of the centuries preceding, a movement which began
under the Flavians and had by no means spent its force when Constantine
came to the throne. From an early period in the Empire, and more
especially under the Severi, men were turning in disgust and disillusion
to religion as a refuge from the evils of the world in which they lived,
as a sphere in which they could realise dreams of better things than
those begotten of their present discontent. This fact explains the
quickening of the older cults and the ready adoption of new ones, which
issued in a promiscuous pantheon and a bewildering medley of religious
rites and practices. Then came philosophy and sought to bring order
out of chaos. It tried, and with some success, to clear away superstition
and to raise the believer in gods many to a living communion with the
One divine of which they were but different manifestations. There is no
doubt that Proclus, who unified to some extent the heterogeneous system
of Plotinus, was engaged in the proper business of philosophy, viz. the
contemplation of metaphysical truth; there is equally no doubt that
in practice the philosophy of the age was addressed to the same human
need as its religion. And that need was a better knowledge of God.
It is most significant that the final rally of the old religions was under
the banner of a philosophy: Julian and his supporters were Neo-
platonists.
## p. 569 (#599) ############################################
The Persistence of Paganism
569
the core.
We
may therefore claim that the temper of the times was on the
whole religious, concerned chiefly with man's relation to God; and the
fact that the Church had recently achieved so signal a victory is in
itself an indication that the best intellects had gravitated towards her.
Thus the highest thought was Christian, finding expression in those
systematised ideas about God which are summed up in the word
theology.
It would however be a grave mistake to suppose that the age which
saw the triumph of the Christian idea and the establishment of Christi-
anity as the state religion was entirely of one mind and Christian to
Side by side with the great current of Christian thought and
belief, that was now running free after a long subterranean course, there
Aowed a large volume of purely pagan opinion or preconception, such
interfiltration as took place being carried on by unseen channels. Thus,
while eager and courageous spirits were contending for the Faith with
all kinds of weapons against all kinds of foes throughout the Empire,
men (and some of them Christian men) were writing and speaking as
though no such thing as Christianity had come into the world. And the
age that witnessed the conversion of Constantine and inherited the benefits
of that act was an age that in the East listened to the interminable hex-
ameters of Nonnus Dionysiaca, which contain no conscious reference to
Christianity; that laughed over the epigrams of Cyrus; that delighted
in many frankly pagan love-stories and saw nothing surprising in the
attribution of one of them (the Aethiopica) to the Christian bishop
Heliodorus ; that in the West applauded the panegyrists when they
compared emperor and patron to the hierarchy of gods and heroes; and
that in extremity found its consolation in philosophy rather than in the
Gospel
This persistence of paganism in the face of obvious defeat was due
to a number of co-operating causes. Roman patriotism, which saw in
worship of the gods and the secret name of Rome the only safeguard
of the eternal city; the cults of Cybele, Isis, Mithra, and Orpheus, with
their dreams of immortality; the stern tradition of the Stoic emperor
Marcus ; the lofty ideals of the Neoplatonists—all these factors
helped to delay the final triumph. But probably the strongest and
most persistent conservative influence was that of the rhetoric by which
European education was dominated then as it was by logic in the
Middle Ages, and as it has been since the Renaissance by humane
letters. Rhetoric lay in wait for the boy as he left the hands of the
grammarian, and was his companion at every stage of his life. It went
with him through school and university; it formed his taste and trained
or paralysed his mind; but more than this, it opened to him the
1 The most famous instance of such reversion is afforded by Boethius, who died
in prison A. D. 525, but who fairly represents the age before him.
сн. хх.
## p. 570 (#600) ############################################
570
The influence of Rhetoric
a
avenues of success and reward. For although by the fourth century
oratory had lost its old political power, rhetoric still remained a bread-
winning business. It was always lucrative, and it led to high position,
even to the consulship, as in the case of Ausonius the rhetor (A. D. 309–392),
who was Gratian's tutor and afterwards quaestor, praefect of Gaul, and
finally consul. Here is cause enough to account for the long life and
paramount influence of rhetoric in the schools. Now the instrument
with which both schoolmaster and professor fashioned their pupils was
pagan mythology and pagan history. The great literatures of the past
supplied the theme for declamation and exercise. Rules of conduct were
deduced from maxims that passed under the names of Pythagoras, Solon,
Socrates, and Marcus Aurelius. It was inevitable that the thoughts of
the grown man should be expressed in terms of paganism when the
education of the youth was upon these lines. And this education was
for all, not only for the children of unbelievers. Gregory of Nyssa
himself informs us that he attended the classes of heathen rhetoricians.
and second centuries vying one with the other in local patriotism,
in the munificence of leading citizens, in generous contributions of
private men towards the welfare of poorer classes, public health and
order. The economic progress brought about by the establishment
of the Empire made itself felt primarily in the increased activity
and prosperity of city life. But threatening symptoms begin to
appear even in the second century A. D. Municipal self-government
bereft of its political significance, restricted to the sphere of local
interests and local ambitions, is apt to degenerate into corrupt and
spendthrift practices : the wealthier provincial citizens ruin themselves
by lavish expenditure on pageants and distributions, municipal enter-
prise in matters of building and philanthropy often turns out to be
extravagant and inefficient. The emperors find no other means of
remedying such defects than the institution of curators of different kinds
--curatores rei publicae, curatores kalendari—commissioners for the cor-
rection of the condition of free cities (ad corrigendum statum liberarum
civitatum). In the correspondence between Pliny and Trajan the
.
imperial commissioner is already seen to interfere in the most minute
CH. XIX.
## p. 554 (#584) ############################################
554
Growth of Centralisation
questions of city administration and, at the same time, he is constantly
applying for direction to his imperial master. The ideal of centralisation
is clearly expressed in this intimate intercourse of two well-meaning and
talented statesmen : the Emperor appears in the light of an omniscient
and all-powerful Providence watching over all the dealings and doings
of his innumerable subjects. In order to embody such an ideal the
central power had to surround itself with helpers and executive officers,
and Hadrian laid the foundations of a Civil Service more comprehensive
and better organised than the rudimentary administrative institutions
of the Commonwealth and of the early Empire. Later on Diocletian
and Constantine multiplied the number of bureaucratic organs and com-
bined them into one whole by the bands of constant supervision and
iron discipline. But even before this ultimate completion of bureaucracy
in the fourth century, in the very beginnings of the system of central
tutelage, a kind of vicious circle formed itself: central authority was
called upon to interfere on account of the deplorable defects of munici-
pal administration, while municipal life was disturbed and atrophied by
constant interference from above. It is impossible to say precisely what
was cause and what was effect in this case : the process was, as it happens
in many diseases, a constant flow of action and reaction. The jurists of
the third century find already a characteristic formula for corporative
town organisation in an analogy with the condition of a minor under
tutelage, and this analogy is followed up into all sorts of particulars as
to rights and duties. No wonder that for many citizens municipal life
loses its interest, that they try to eschew the burdens of unremunerated
and costly local administration, and that as early as the time of the
Severi compulsion has sometimes to be used to bring together a sufficient
number of unwilling magistrates and members of municipal senates
(Dig. , L. 1, 38, 6; L. 2, 2, 8).
A circumstance which in itself would have hardly been sufficient
to overthrow municipal organisation, certainly contributed to divert
people's minds from the customary trend of local patriotism and to make
the performance of certain duties difficult-I mean the spread of Chris-
tianity. Municipal institutions were intertwined with cults of Roman
and local gods including religious devotion to the Deity of the Emperors.
The new faith, on the other hand, did not admit of sacrifices or prayer
to the false gods of heathendome hence a conflict which did not admit of
a ready solution. Let us listen to the somewhat exaggerated statement
of Tertullian—“We concede,” he says, “ that a Christian may without
endangering salvation assume the honour and title of public functions-
if he does not offer sacrifices nor authorise sacrifices, if he does not
furnish victims, if he does not entrust anybody with the upkeep of
temples, if he does not take part in the management of their income, if
he does not give games either at his own or at the public expense, if he
does not preside at them, if he does not announce or arrange any festival,
## p. 555 (#585) ############################################
Christianity and Municipal Functions
555
if he avoids all kinds of oath and abstains, while exercising power, from
giving sentence in regard to the life or the honour of men, decisions as to
money matters being excepted; if he does not proclaim edicts, nor act
as a judge, nor put people into prison or inflict torture on them. But
is all this possible? " As a matter of fact the heathen State did certainly
not go out of its way to make all these exceptions possible, and conflicts
between law and religious conviction arose every day. On many occasions
Christians of a softer mould submitted to what they considered to be
inevitable, and performed most of the duties challenged by the fiery
African. The Church had to work out a penitentiary code for those
among its members who had sullied themselves by heathen practices (see
e. g. the canons of the Synod of Elvira in Spain). Sometimes again the more
firm among the Christians made a stubborn stand and were martyrised
for their protest as enemies of the Roman State. Altogether there can
.
be no doubt that the inherent contradiction between Christian religion
and the pagan practices of municipal life did put an extra strain on the
latter and could not but increase the disorder which was setting in.
The bold step taken by Constantine in recognising Christianity as a
state religion saved the situation to some extent, but it could not do
away at a stroke with all the pagan elements of municipal life: the
strife between religions assumed a new aspect, and as the vital connexion
between local self-government and local cults was never restored, that
unity of conception which marked antiquity when at its best had to
be replaced by a deep dualism tending towards new solutions of
political and moral problems. The greatest representative of conquering
Christianity, St Augustine, recognises the defeat of the material world
of antiquity and has to fashion his ideals according to a scheme of
two cities in which only the heavenly one appeals to his devotion and
energy.
Apart from this complication arising out of peculiarities of religious
history, the middle class of the citizens was undergoing a transformation
similar to that of the merchants and craftsmen. When the chaotic con-
ditions of the second half of the third century were arrested by the
statesmanship and military power of Aurelian and Diocletian, the policy
of compulsion was brought to bear with full weight on the well-to-do
inhabitants of cities. They were mostly not only houseowners in our
sense, but also owners of lands in the vicinity of the towns, although
distinctions which it is somewhat difficult for us at the present time to
formulate in detail were drawn between them and the possessores or land-
owners properly so called. However, the bulk of the well-to-do townsmen
was considered as a separate class, the curiales, out of which the actual
members of city senates, the decuriones, as well as its executive officials
and justices, were selected. Yet the connexion between the curiales
group and the actual office-holders was so close, there were so few
members of the former who had not to serve in one way or the other,
CH. XIX.
## p. 556 (#586) ############################################
556
The Curiales
that the enactments of the Codes currently confuse the two distinct
terms-curiales and decuriones. This confusion of itself points to
the overburdening of the middle class in the towns with service. And
we find indeed that its members are compelled to take over without
salary the various personal munera, or charges, of local government, to
administer the town, to act as petty justices, to take part in deputations,
to arrange games, to inspect public buildings, to provide fuel for baths,
to superintend postal and transport service (cursus publicus), to collect
rates, etc.
The most burdensome of their obligations were connected with the
collection of taxes. They were chiefly responsible for assessing the
town population, and out of their number were selected the inspectors
of public stores (horrea) and the decemprimi (Sexám potoi), who had
to collect the land tax and the tribute in kind (annona). Both
heathen and Christian authors testify to the crushing burden of taxation
during the fourth and fifth centuries, and the unfortunate curiales, who
were made the instruments of collection under the watchful and extor-
tionate supervision of state officials, were not only suffering from the
unpopularity of their functions, but had constantly to fall back on their
own resources in order to make good deficiencies and arrears. The
decemprimi were primarily responsible as collectors, and when they
vacated their office they had to nominate their successors and to
stand surety for their good behaviour. Not content with this the
provincial authorities commonly made the town, that is, primarily the
town senate (curia), liable for deficiencies in the full sum required. The
emperors sometimes intervened to forbid such collective liability
(C. Th. xi. 7, 2; C. Just. xi. 59, 16), but on other occasions they
enforced it in the most sweeping manner, as for instance when
Aurelian, and later on Constantine, decreed that the town senates
(ordines) should be made responsible for the taxes of deserted estates,
and in case they should be unable to support the burden it should be
distributed among the various local districts and estates (C. Just. XI.
59, 1).
In consequence of such oppressive burdens laid on the curiales we
witness the curious spectacle of widely spread attempts on the part of
the citizens to escape into more privileged professions—into the clergy
or the army—and even of their flight into the country, where they were
sometimes glad to live and work as simple coloni. The Codex Theo-
dosianus and the Codex Justinianus are full of enactments forbidding the
curiales to leave the place of their birth, condemning them to a hereditary
subjection to municipal charges (munera), in fact turning their con-
dition into a kind of serfdom. All the sons of a curialis had to follow
their father's career, they were deemed curiales from the date of their
birth (C. Th. xII. 1, 122). If there was not a sufficient number of
persons of this class to uphold all its obligations, owners of estates
## p. 557 (#587) ############################################
The Curia and Compulsion
557
ressions
(possessores), denizens (incolae), well-to-do plebeians were pressed into it.
The wretched townspeople were suspected of wanting to escape by flight
from their onerous condition and had to apply to the governor for special
leave of absence when they left the place of their birth for the sake of
business or travel. If one of them wanted to change permanently his
place of abode he was bound to provide a substitute or to leave a great
part of his fortune to the curia. This epoch of imperial legislation does
away, for fiscal and administrative purposes, with some of the funda-
mental principles of Roman law in its better times. A curialis, though
a Roman citizen in the exercise of full civil rights, is unable freely to
bequeath his fortune to another Roman citizen belonging to a different
city: property passing out of the jurisdiction of one curia into that of
another is charged with a heavy special payment to the former senate, and
in fact remains “ obnoxious” to it (C. Th. xii. 1, 107); a later constitu-
tion enacted that at least one-fourth of the property should remain in
the hands of the original curia. If a curialis wanted to sell land or
slaves employed in the cultivation of his estate he had to obtain leave
from the governor of the province (C. Th. xII. 3, 1). Heiresses were
much hampered in the right to marry strangers outside their late father's
curia and had in such cases to relinquish one-fourth part of their
property.
The climax of this legislation of servitude is reached when the
emperors actually condemn people for some crime or misdemeanour to be
enrolled as members of a curia : sons of veterans, e. g. who, by chopping
off their fingers, had rendered themselves unfit to serve in the army,
were stuck into the curia, and the same fate awaited unworthy
ecclesiastics.
The policy of compulsion and the spread of caste were undoubtedly
responsible to a great extent for another social process of great moment,
namely, for the formation of the colonate, an institution destined to play
an important part in medieval peasant life. Its roots stretch far back
into the earlier history of Roman husbandry. Columella, a writer on
agriculture of the first century A. D. , instructs his readers that it is
advantageous for owners of estates of insufficient fertility and difficult
cultivation to employ free farmers, coloni, instead of slaves. The
tenants were sometimes settled on the métayer system (colonia partiaria),
the farmer sharing crops with the owner. Juridically the relation was
regulated by the rules of the law of lease (locatio conductio) and the Digest
often refers to the various problems arising under this contract; custom
and tacit agreement played a great part in the treatment of such
questions in practice. By the side of contractual relations between
private landlords and tenants stood administrative regulations as to the
management of vast domains of the Crown and of the private patrimony
of the Emperor. Crowds of tenants were settled on these estates who
had to look for a guarantee to the possession of their holdings rather to
CH. XIX.
## p. 558 (#588) ############################################
558
The Colonate
the equity and properly understood interest of their imperial masters
than to formal contractual right. Lastly, a good many slaves were put
into a position similar to that of the tenants of free birth, and as a
matter of fact, it got to be more and more difficult to distinguish
between coloni by contract and quasi-coloni by long usage and customary
tenure. One trait which tended to reduce the distance between the
different groups was the heavy indebtedness of most free farmers: they
had often to take their agricultural outfit from the landowner along
with the farm ; in case of economic difficulties they turned to him as to
their natural protector and a capitalist near at hand, and when once
debts had been made, it was exceedingly difficult to pay them off.
Fourth-century legislation approaches these relations in its usual
despotic manner. A law of Constantine dated A. D. 332 gives us the first
glimpse of a new order of men standing between the free and the unfree
and treated, in fact, as serfs of the glebe. It runs thus : “With whom-
soever a colonus belonging to someone else (alieni juris) may be discovered,
let the new patron not only restore the colonus to the place of his
birth (origini), but let him also pay the tax for the time of his absence.
As for the coloni themselves who contemplate flight, let them be put
into fetters after the manner of slaves, so that they should perform
duties worthy of freemen on the strength of a servile condemnation”
(C. Th. v. 17, 1). But from Constantine again we have another en-
1
actment marking the other side of the condition, namely, the legal
protection afforded to the colonus against possible exactions. About
A. D. 325 the Emperor laid down in a rescript to the vicarius of the East
that, “a colonus from whom a landlord exacted more than it was
customary to render and than had been obtained from him in former
times, may apply to the judge nearest at hand and produce evidence of
the wrong. The person who is convicted of having claimed more than
he used to receive shall be prohibited to do so in the future after having
given back what he extorted by illegal superexaction” (C. Just. xi. 50, 1).
The legal protection afforded to the coloni was not suggested by prin-
ciples of humanity, but by the necessity of keeping up at least some portion
of the previous personal freedom of these peasants in order to safeguard
the interest of the State which looked upon this part of the population as
the mainstay of its fiscal system. If the emperors made light of the
right of free citizens to choose their abode and their occupations as they
pleased and did not scruple to attach the coloni to their tenures, the
absolute right of landowners to do what they pleased with their land
was not more sacred to them. Constantine imposed the most stringent
limitations on their power of alienating plots of land. “ If someone
wants to sell an estate or to grant it, he has not the right to retain
coloni by private agreement in order to transfer them to other places.
Those who consider coloni to be useful, must either hold them together
with the estates or, if they despair of getting profit from these estates,
## p. 559 (#589) ############################################
Rise of Rustic Classes
559
let them also give up the coloni for the use of other people” (C. Th.
XIII. 10, 3; A. D. 357). In, the reign of Valentinian, Valens and
Gratian, about A. D. 375, this principle is characteristically extended
to the very slaves. “As born cultivators (originarii) cannot be sold
without their land, even so it is forbidden to sell agricultural slaves
inscribed in the census rolls. Nor must the law be evaded in a fraudu-
lent manner, as has been often practised in the case of originarii,
namely, that while a small piece of land is handed over to the buyer, the
cultivation of the whole estate is made impossible. But if entire estates
or portions of them pass to a new owner, so many slaves and born
cultivators' should be transferred at the same time as used to stay with
the former owners in the whole or in its parts” (C. Just. xl. 48, 7).
The fiscal point of view is clearly expressed on many occasions.
Valentinian and Valens entrust the landowners with the privilege of
collecting the taxes of their coloni for the State with the exception of
those tenants who have besides their farms some land of their own
(C. Th. xi. 1, 14). This right and duty might be burdensome, but
it certainly gave the landlords a powerful lever in reducing their free
tenants to a condition of almost servile subjection. Perhaps the most
drastic expression of the process may be seen in the fact that coloni lose
their right to implead their masters in civil actions except in cases of
superexaction. In criminal matters they were still deemed possessed of
the full rights of citizens (C. Just. xi. 50, 2).
But it would be wrong to suppose that the condition of the farmers
in the fourth and fifth centuries is characterised by mere oppression and
deterioration. In the case of rustic slaves it is clearly seen that their
11
fate was much improved by the course of events and by legislation.
Their masters lost part of their former absolute authority because the
State began to supervise the relations between master and slave for the
sake of keeping cultivators to their work and thereby ensuring the
coming in of taxes. Considerations of a similar nature exerted an
influence on the fate of coloni, and they made themselves felt not only
in social legislation, but also in husbandry. The tremendous agrarian
crisis through which the Empire was passing could not be weathered by
mere compulsion and discipline. On a large scale, it was a case like the
one described in Columella's advice to landowners: if you want to get
your land cultivated under difficult conditions, do not try to manage it
by slave labour and direct orders, but entrust it to farmers. The great
latifundia of earlier times were parcelled up into small plots, because
only small cultivators could stand the storm of hostile invasion, of dis-
location of traffic, of depopulation. Nor was it possible for the landowner
to demand rack-rents and to avail himself of the competition between
agricultural labourers. He had to be content if he succeeded in providing
his estates with tenants ready to take care of them at moderate and
customary rents, and both sides—the lord and the tenant-were interested
CH, XIX.
## p. 560 (#590) ############################################
560
Tendency to Emphyteusis
in making the leases hereditary if not perpetual. Thus there is a second
aspect to the growth of the colonate. The institution was not only one of
the forms of compulsion and caste legislation, but also a “meliorative"
device, a means for keeping up culture and putting devastated districts
under the plough. Among the earliest roots of the colonate we find the
licence given to squatters and peasants dwelling in villages adjoining
waste land to occupy such land and to acquire tenant right on it by the
process of culture. The Emperor Hadrian published a general enact-
ment protecting such tenants on imperial domains, and the African
inscriptions testify that his regulations did not remain a dead letter.
This feature-cultivation of waste and amelioration of culture-is
seldom expressed in as many words in the enactments of the Codex
Theodosianus and of the Codex Justinianus, because the laws and
rescripts collected there are chiefly concerned with the legal and fiscal
aspects of the situation. The legislators had no occasion to speak
directly of low rents and remissions in their payment. Yet even in
these documents some indications of the “emphyteutic” tendency
may be gleaned. I will just call attention to one of the earliest
“constitutions” relating to the colonate, namely, to the decree of
Constantine of A. D. 319 (C. Just. xi. 63, 1). It is directed against
encroachments of coloni on the lands of persons who held their estates
by the technical title of emphyteutae, of which we shall have to say more
by and by. It is explained that coloni have no right to occupy lands for
the culture of which they have done nothing. “By custom they are
allowed to acquire only plots which they have planted with olives or
vines. ” This ruling is entirely in conformity with the Lex Hadriana de
rudibus agris and testifies to the peculiar right of occupation conceded to
cultivators of waste.
The technical requirement of making plantations of olive trees or
vines corresponds exactly to the Greek expression DUTevel which reap-
pears in the term emphyteusis so much in use in the later centuries of
the Empire.
Of course, cultivation of the waste was not restricted in
practice to the rearing of these two kinds of useful trees, nor can the
view so clearly formulated in this case have failed to assert itself on other
occasions, especially in the relations between landlord and tenant. But
the luxuriant growth of emphyteusis as a widely prevalent contract is.
very characteristic of the epoch.
The emphyteusis of the later Empire is distinguished from other
leases by three main features : it is hereditary; the rent paid is fixed
and generally slight; the lessee undertakes specific duties in regard to
amelioration on the plot and may lose the tenancy if he does not carry
them out. These peculiarities were so marked that there was consider-
able doubt whether the relation of emphyteusis was originated by the
sale of a plot by one owner to the other with certain conditions as to the
payment of rent, or by a downright lease. A constitution of Zeno,,
## p. 561 (#591) ############################################
Epibole
561
а
published between 476 and 484, decided the controversy in the sense
that the contract was a peculiar one, standing, as it were, between a sale
and a lease (C. Just. iv. 66, 1). The meaning of such a doctrine was, of
course, that in many cases rights arose under cover of dominium (Roman
absolute property), which amounted in themselves to a new hereditary
possession, and arising from the labour and capital sunk by the subordi-
nate possessor into the cultivation of the estate, and leaving a very small
margin for the claims of the proprietor. Such hybrid legal relations do
not come into being without strong economic reasons, and these reasons
are disclosed by the history of the tenure in question. Its antecedents
go far back into earlier epochs, although the complete institution was
matured only towards the end of the fifth century. One of the roots of
emphyteusis we have already noticed in the occupation of waste land by
squatters or cultivators dwelling on adjoining plots. In the fourth and
fifth centuries the emperors not only allow such occupation, but make
it a duty for possessors of estates in a proper state of cultivation to take
over waste plots. This is the basis of the so-called epibole (érißoln),
of the “imposition of desert to fertile land," an institution which arose
at the time of Aurelian and continued to exist in the Byzantine Empire.
It is worth noticing that a law of Valentinian, Theodosius and Arcadius
gives every one leave to take possession of deserted plots; should the
former owner not assert his right in the course of two years and com-
pensate the new occupier for ameliorations, his property right is deemed
extinguished to the profit of the new cultivator (C. Just. xi. 59, 8).
In this case voluntary occupation is still the occasion of the change of
ownership, but several other laws make the taking over of waste land
compulsory. An indirect but important consequence of the same view
may be found in the fact that the right of possessors of estates to
alienate portions of the same was curtailed: they were not allowed to
sell land under profitable cultivation without at the same time disposing
of the barren and less profitable parts of the estate; the Government
took care that the “nerves” of a prosperous exploitation should not be
cut.
A second line of development was presented by leases made with the
intention of ameliorating the culture of certain plots. The practice of
such leases may be followed back into great antiquity, especially in
provinces with Greek or Hellenised population; and it is on such estates
that the terms putevelv, emphyteusis first appear in a technical sense.
A good example is presented by the tables discovered on the site of
Heraclea in the gulf of Tarentum, where land belonging to the temple
of Dionysos was leased to hereditary tenants about B. c. 400 on the
condition of the construction of farm buildings and the plantation of
olives and vines! . Emphyteutic leases of the same kind, varying in
Dareste, Houssoulier et Reinach, Recueil d'inscriptions juridiques grecques,
1. Pp. 201 ff.
>
1
C. MED, H. VOL. I. CH. XIX.
36
## p. 562 (#592) ############################################
562
Jus perpetuum
details, but based on the main conditions of amelioration and hereditary
tenancy, have been preserved from the second century A. D. in the
Boeotian town of Thisbe'. Roman jurists, e. g. Ulpian, mention distinctly
the peculiar legal position of such “emphyteutic” tenancies and there
can be no doubt that as the difficulties of cultivation and economic inter-
course increased, great landowners, corporations and cities resorted more
and more to this expedient for ensuring some cultivation to their estates
even at the cost of creating tenancies which restricted owners in the
exercise of their right.
A third variety of relations making towards the same goal may be
observed in the so-called perpetual right (jus perpetuum). It arose chiefly
in consequence of conquest of territories by the Roman State. The title
of former owners was not extinguished thereby but converted into a
possession subordinate to the superior ownership of the Roman people
and liable to the payment of a rent (vectigal, canon). The distinction
between Roman land entirely free from any tax and provincial land
subject to tax or rent was removed in the second century A. D. when land
in Italy was made subject to taxes. But the legal conception of tenant
right subject to the eminent domain of the emperor remained and the
jus perpetuum continued as a special kind of tenure on the estates of
cities and of the Crown, as we should say nowadays, until it was merged
into the general right of emphyteusis together with the two other species
already mentioned.
These juridical distinctions are not in the nature of purely technical
details. The great need of cultivation and the wide concessions made
in its interest in favour of effective farming are as significant as the
subdivision of ownership in regard to the same plot of land, one
person obtaining what may be called in later terminology the useful
rights of ownership (dominium utile), while the other detains a superior
right nevertheless (dominium eminens). In this as in many other points
the peculiarities of medieval law are foreshadowed in the declining
Empire.
This observation applies even more to the part assumed by great
landowners in the fourth and fifth centuries. A great estate in those
times comes to form in many respects a principality, a separate district
for purposes of taxation, police and even justice. Already in the first
century A. D. Frontinus speaks of country seats of African magnates sur-
rounded by villages of their dependents as if by bulwarks. By the side
of the civitas, the town forming the natural and legal centre of a district,
appears the saltus, the rural, more or less uncultivated district organised
under a private lord or under a steward of the emperor. The more
important of these rural units are extraterritorial-outside the juris-
diction and administration of the towns. By and by the seemingly
! omnipotent government of the emperor is driven by its difficulties to
1 Dittenberger, Programme of the University of Halle, 1881.
## p. 563 (#593) ############################################
Libanius on Patronage
563
concede a large measure of political influence to the aristocracy of large
landowners. They collect taxes, carry out conscription, influence
ecclesiastical appointments, act as justices of the peace in police matters
and petty criminal cases. The disruptive or rather the disaggregating
forces of local interests and local separatism come thus to assert
themselves long before the establishment of feudalism, under the very
sway of absolute monarchy and centralised bureaucracy.
If the formation of the colonate means the establishment of an order
of half-free persons intermediate between free citizens and slaves, if
emphyteusis amounts to a change in the conception of ownership, the
rise of the privileges and power of landowners corresponds to the
appearance of a new aristocracy which was destined to play a great
part in the history of medieval Europe.
Besides what was directly conceded to these lords by the central
authority we must reckon with their encroachments and illegal dealings in
regard to the less favoured classes of the population. The State had to
appeal to private persons of wealth and influence because it was not
able to transmit its commands to the inert masses of the population in
any other way. Aristocratic privilege was from this point of view a con-
fession of debility on the part of the Empire. But the inefficiency of
the State was recognised by its subjects as well and, as a natural result,
they applied for protection to the strong and the wealthy, although
such a recourse to private authority led to the infringement of public
interests and to the break-up of public order. Private patronage
appears as a threatening symptom with which the emperors have
to deal. In the time of undisputed authority of the commonwealth
it was a usual occurrence that benefactors of a town or village,
persons who had erected waterworks, built baths, or founded an
alimentary institution for destitutes should be honoured by the title of
patroni and by certain privileges in regard to precedence and ceremonial
rights. The emperors of the fourth and of the fifth century had to
forbid patronage because it constituted a menace to law and to public
order. We hear of cases of “maintenance"; parties to a trial being
“"
protected by powerful patroni, who seek to turn the course of justice in
favour of their clients. Libanius, a professional orator of the epoch
of Valentinian II and Theodosius I, gives a vivid description of the
difficulties he had to meet in a suit against some Jewish tenants of his
who refused to pay certain rents according to ancient custom. If we
are to believe our informant, they had recourse to the protection of a
commander of troops stationed in the province, and when Libanius came
into court and produced witnesses, he found the judge so prepossessed
in favour of his opponents that he could not get a hearing, and his wit-
nesses were thrown into prison or dismissed. In another part of the
same speech Libanius inveighs against officers who prevent the collection
of taxes and rents and favour brigandage. There may be a great deal
CH, XIX.
36-2
## p. 564 (#594) ############################################
564
Patronage. Special Authorities
of exaggeration in the impassioned account of the Greek rhetor, but the
principal heads of his accusation can be confirmed from other sources,
especially from imperial decrees. A company of soldiers gets quartered
in a village and when the curiales of the next town appear to collect
taxes or rents, they are met by violence and may be called fortunate if
they escape without grievous injury to life and limbs. In the Theo-
dosian Code enactments directed against patronage in villages go so far
as to forbid the acquisition of property in a rural district by outsiders
for fear the strangers should prove powerful people capable of opposing
tax collectors. According to the account of Salvian, a priest who
lived in the fifth century in southern Gaul, patronage had become quite
prevalent in that region. People turned to private protection out of
sheer despair and surrendered their land to the protector, rather than
face the extortions of public authorities. There can be no doubt that
patrons and protectors of the kind described, if they were helpful to
some, were dangerous and harmful to others, and the State in the fourth
and fifth centuries had good reasons to fight against their influence. But
the constant repetition of the same injunctions and prohibitions proves
that the evil was deeply rooted and difficult to get rid of. The Sisy-
phean task undertaken by the Government in its struggle against abuses
and encroachments is well illustrated by various attempts to create
special authorities to repress the exactions of ordinary officers and
to correct their mistakes.
One of the principal expedients used by Diocletian and his successors
was to institute a special service of supervising commissaries under the
names of agentes in rebus and curiosi. They were sent into the provinces
more particularly to investigate the management of the public post, but,
as a matter of fact, they were employed to spy on governors, tax col-
lectors and other officials. They received complaints and denunciations
and sometimes committed people to prison. A decree of Constantius
tries to restrict the latter practice and to impress on these curiosi the
idea that they are not to act in a wanton manner but have to produce
evidence and to communicate with the regular authorities (A. D. 855,
C. Th. vi. 29, 1). But the very existence of such a peculiar insti-
tution was an incitement to delation and arbitrary acts, and in 395
Arcadius and Honorius try to concentrate the activity of the agentes in
rebus on the inspection of the post. “They ought not to levy illicit
toll from ships, nor to receive reports and statements of claims, nor to
put people into prison " (C. Th. vi. 29, 8). The service of the agentes
and of the curiosi was deemed to be as important as it was dangerous,
and those who went through the whole career were rewarded by the
high rank of counts of the first class. It is hardly to be wondered
at that these extraordinary officials provided with peculiar methods of
delation did not succeed in saving the Empire from the corruption of
its ordinary officers.
## p. 565 (#595) ############################################
The Church
565
And yet the emperors found that the only means of exercising some
control over the abuses of the bureaucratic machinery and the oppression
of influential people was in pitting extraordinary officials against them.
The defensor civitatis was designed to act as a protector of the lower
orders against such misdeeds. The office originated probably in voluntary
patronage bestowed on cities by great men, but it was regularised and
made general under Valentinian I. An enactment of Gratian, Valen-
tinian II and Theodosius lays chief stress on the protection afforded by
defensores to the plebs in regard to taxation. The defensor ought to be
like a father of the plebs, to prevent superexaction and hardships in the
assessment of taxes both in regard to the town population and to rustics,
to shield them against the insolence of officials, and the impertinence of
judges. Not merely fiscal oppression was aimed at, but also abuses in
the administration of justice, and the emperors tried to obviate the
evils of a costly litigation and inaccessible tribunals by empowering the
defensores to try civil cases in which poor men were interested. It was
somewhat difficult to draw the line between such exceptional powers and
ordinary jurisdiction, but the Government of the later Empire had often
to meet similar difficulties. An important privilege of the defensores
was the right to report directly to the emperor, over the governor of
the province: this was the only means for making protests effective, at
least in some cases.
As to the mode of electing the defensores we notice
some variation: they are meant to represent the population at large and
originally the people took part in the election, though it had to be con-
firmed by the emperors. In the fifth century, however, the office became
a burden more than an honour, a quantity of petty police functions and
formal supervision was tacked on to it, and the emperors are left no
choice but to declare that all notable citizens of the town have to take
it in turn. This is certainly a sign of decline and there can be no doubt
that the original scope of the institution was gradually lost sight of.
A third aspect of the same tendency to counterbalance the evil 3.
working of official administration by checks from outside forces may be
noticed in the political influence assigned to the Church. Here un-
doubtedly the emperors of the fourth and fifth centuries reached firm
ground. It was not a mere shuffling of the same pack of cards, not a
pitting of one official against the other by the help of devices which at
best answered only for a few years. It was an appeal from a defective
system to a fresh and mighty force which drew forth the best capabilities
of the age and shaped its ideals. If anywhere, one could hope to find
disinterested effort, untiring energy and fearless sense of duty among the
representatives of the Church, and it is clear that both government
and people turned to them on especially trying occasions. We need
not here speak of the intense interest created by ecclesiastical con-
troversies or of the signal evidence of vigorous moral and intellectual
life
among
the clergy. But we have to take these facts into account if
hurch
CH. XIX.
## p. 566 (#596) ############################################
566
Political action of the Church
we want to explain the part assumed by Church dignitaries in civil
administration and social affairs. A significant expression of the con-
fidence inspired in the public by the ecclesiastical authorities may be
seen in the custom of applying to them for arbitration instead of seeking
redress in the ordinary courts. The custom in question had its historical
roots in the fact that before the recognition of Christianity as a state
religion by the Empire the Christians tried to abstain as far as possible
from submitting disputes and quarrels to the jurisdiction of pagan
magistrates. There was a legal possibility of escaping from such inter-
ference of pagan authorities by resorting to the arbitration of persons
of high moral authority within the Church, especially bishops. When
Christianity conquered under Constantine, episcopal arbitration was
extended to all sorts of cases and an attempt was made, as is shewn by
two enactments of this emperor (Const. Sirmond. xvII. ; 1. ) to convert it
into a special form of expeditious procedure, well within reach of the
poorer classes. Episcopal awards in such cases were exempted from the
ordinary strict forms of compromise accompanied by express stipulation;
the procedure was greatly simplified and shortened, the recourse of one
party to the suit to such arbitration was held to be obligatory for the
other party. At the close of the fourth century Arcadius considerably
restricted this wide jurisdiction conceded to bishops and tried to reduce
it to voluntary arbitration pure and simple. But the moral weight of
their decisions was so great, that the ecclesiastical tribunals continued
to be overwhelmed with civil cases brought before them by the parties.
Not only Ambrose of Milan, who lived in the time of Theodosius the
Great, but also Augustine, who belongs chiefly to the first quarter of
the fifth century, complain of the heavy burden of judicial duties
which they have to bear.
The bishops had no direct criminal jurisdiction, but through the
right of sanctuary claimed by churches and in consequence of the
general striving of Christian religion for humanity and charity, they
were constantly pleading for grace, mitigation of sentences, charitable
treatment of prisoners and convicts, etc. Panic stricken and persecuted
persons and criminals of all kinds flocked for refuge to the churches;
famous cathedrals and monasteries presented curious sights in those
days: they seemed not only places of worship but also caravan-
serais of some kind. Fugitives camped not only in the churches but at
a distance of fifty paces around them. Gangs of these poor wretches
accompanied priests and deacons on their errands and walks outside the
church, as in such company they were held to be secure from revenge
and arrest. The Government restricted the right of fiscal debtors to take
sanctuary in order to escape from the payment of taxes, but in other
respects it upheld the claims of ecclesiastical authority. Certain com-
promises with existing law and custom had undoubtedly to be effected.
The Church did not attempt, for instance, to proclaim the abolition of
slavery. It merely negotiated with the masters in order to obtain
## p. 567 (#597) ############################################
î4
The Church and moral police
5673
promises of better treatment or a pardon of offences. But it coun-
tenanced in every way the emancipation of slaves and protected freed-
men when once manumitted. The Acts of Councils of the fourth
century are full of enactments in these respects (e. g. Council of Orange,
c. 7; Council of Arles, II. cc. 33, 34).
Another domain in which the authority of the bishops found ample
scope for its assertion was the sphere of moral police, if one may use the
expression. To begin with, pious Christians were directed by the Gospel
to visit prisoners, and this commandment of Christ became the foundation
for a supervision of the Clergy over the state of prisons, their sanitary
conditions-baths, food, the treatment of convicts, etc. In those times
when terrible need and famines were frequent, parents had the legal
right to sell their children directly after their birth (sanguinolenti)
and a person who had taken care of a foundling was considered its
owner. It is to ecclesiastical authorities that the emperors turn in
order to prevent these rights from degenerating into a ruthless kid-
napping of children. The Church enforces a delay of ten days in order
that parents who wish to take back their offspring should be able to
formulate their claims. If they have not done so within the days of
respite, let them never try to vindicate their flesh and blood any more:
even the Church will treat them as murderers (Council of Vaison,
cc. 9, 10). Again ecclesiastics are called upon to prevent the sale of
human beings for immoral purposes : no one ought to be forced to
commit adultery or to offer oneself for prostitution, even if a slave,
and bishops as well as secular judges have the power to emancipate
slaves who have been subjected by their masters to such ignominious
practices. They are also bound to watch that women, either free or
unfree, should not be constrained to join companies of pantomime actors
or singers against their will (C. Just. 1. 4, 10).
In conclusion it may be useful to point out once more that the social
process taking place in the Roman Empire of the fourth and fifth
centuries presented features of decline and of renovation at the same
time. It was brought about to a great extent by the increased influence
of lower classes and the influx of barbarous customs, and in so far it
expresses itself in an undoubted lowering of the level of culture. The
sacrifice of political freedom and local patriotism to a centralised
bureaucracy, the rigid state of siege and the caste legislation of the
Constantinian and Theodosian era produced an unhealthy atmosphere of
compulsion and servility. But at the same time the Christian Church
asserts itself as a power not only in the spiritual domain, but also in the
legal and economic sphere. Society falls back to a great extent on the
lines of local life and of aristocratic organisation, but the movement in
this direction is not a merely negative one: germs appear which in their
further growth were destined to contribute powerfully towards the
formation of feudal society.
CH, XIX.
## p. 568 (#598) ############################################
568
CHAPTER XX.
THOUGHTS AND IDEAS OF THE PERIOD.
The fourth and fifth centuries A. D. were marked by the rise of no
new school of metaphysics and were illustrated by only one pre-eminent
philosopher. In theology the period can boast great names, perhaps the
greatest since the Apostles of Christ, but in philosophy it is singularly
barren. Plotinus (A. D. 205-270), the chief exponent and practical
founder of that reconstruction of Greek philosophy known as Neo-
platonism, had indeed many disciples; but Proclus the Lycian (A. D.
412-485) is the only one of them who can be said to have advanced in
any marked degree the study of pure thought. The mind of the age
was inclined towards religion, or at least religious idealism, rather than
towards metaphysics. Nor is this matter for surprise when we remember
the spiritual revival of the centuries preceding, a movement which began
under the Flavians and had by no means spent its force when Constantine
came to the throne. From an early period in the Empire, and more
especially under the Severi, men were turning in disgust and disillusion
to religion as a refuge from the evils of the world in which they lived,
as a sphere in which they could realise dreams of better things than
those begotten of their present discontent. This fact explains the
quickening of the older cults and the ready adoption of new ones, which
issued in a promiscuous pantheon and a bewildering medley of religious
rites and practices. Then came philosophy and sought to bring order
out of chaos. It tried, and with some success, to clear away superstition
and to raise the believer in gods many to a living communion with the
One divine of which they were but different manifestations. There is no
doubt that Proclus, who unified to some extent the heterogeneous system
of Plotinus, was engaged in the proper business of philosophy, viz. the
contemplation of metaphysical truth; there is equally no doubt that
in practice the philosophy of the age was addressed to the same human
need as its religion. And that need was a better knowledge of God.
It is most significant that the final rally of the old religions was under
the banner of a philosophy: Julian and his supporters were Neo-
platonists.
## p. 569 (#599) ############################################
The Persistence of Paganism
569
the core.
We
may therefore claim that the temper of the times was on the
whole religious, concerned chiefly with man's relation to God; and the
fact that the Church had recently achieved so signal a victory is in
itself an indication that the best intellects had gravitated towards her.
Thus the highest thought was Christian, finding expression in those
systematised ideas about God which are summed up in the word
theology.
It would however be a grave mistake to suppose that the age which
saw the triumph of the Christian idea and the establishment of Christi-
anity as the state religion was entirely of one mind and Christian to
Side by side with the great current of Christian thought and
belief, that was now running free after a long subterranean course, there
Aowed a large volume of purely pagan opinion or preconception, such
interfiltration as took place being carried on by unseen channels. Thus,
while eager and courageous spirits were contending for the Faith with
all kinds of weapons against all kinds of foes throughout the Empire,
men (and some of them Christian men) were writing and speaking as
though no such thing as Christianity had come into the world. And the
age that witnessed the conversion of Constantine and inherited the benefits
of that act was an age that in the East listened to the interminable hex-
ameters of Nonnus Dionysiaca, which contain no conscious reference to
Christianity; that laughed over the epigrams of Cyrus; that delighted
in many frankly pagan love-stories and saw nothing surprising in the
attribution of one of them (the Aethiopica) to the Christian bishop
Heliodorus ; that in the West applauded the panegyrists when they
compared emperor and patron to the hierarchy of gods and heroes; and
that in extremity found its consolation in philosophy rather than in the
Gospel
This persistence of paganism in the face of obvious defeat was due
to a number of co-operating causes. Roman patriotism, which saw in
worship of the gods and the secret name of Rome the only safeguard
of the eternal city; the cults of Cybele, Isis, Mithra, and Orpheus, with
their dreams of immortality; the stern tradition of the Stoic emperor
Marcus ; the lofty ideals of the Neoplatonists—all these factors
helped to delay the final triumph. But probably the strongest and
most persistent conservative influence was that of the rhetoric by which
European education was dominated then as it was by logic in the
Middle Ages, and as it has been since the Renaissance by humane
letters. Rhetoric lay in wait for the boy as he left the hands of the
grammarian, and was his companion at every stage of his life. It went
with him through school and university; it formed his taste and trained
or paralysed his mind; but more than this, it opened to him the
1 The most famous instance of such reversion is afforded by Boethius, who died
in prison A. D. 525, but who fairly represents the age before him.
сн. хх.
## p. 570 (#600) ############################################
570
The influence of Rhetoric
a
avenues of success and reward. For although by the fourth century
oratory had lost its old political power, rhetoric still remained a bread-
winning business. It was always lucrative, and it led to high position,
even to the consulship, as in the case of Ausonius the rhetor (A. D. 309–392),
who was Gratian's tutor and afterwards quaestor, praefect of Gaul, and
finally consul. Here is cause enough to account for the long life and
paramount influence of rhetoric in the schools. Now the instrument
with which both schoolmaster and professor fashioned their pupils was
pagan mythology and pagan history. The great literatures of the past
supplied the theme for declamation and exercise. Rules of conduct were
deduced from maxims that passed under the names of Pythagoras, Solon,
Socrates, and Marcus Aurelius. It was inevitable that the thoughts of
the grown man should be expressed in terms of paganism when the
education of the youth was upon these lines. And this education was
for all, not only for the children of unbelievers. Gregory of Nyssa
himself informs us that he attended the classes of heathen rhetoricians.
