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.
slaves employed in the cultivation of his estate he had to obtain leave
from the governor of the province (C.
Cambridge Medieval History - v1 - Christian Roman Empire and Teutonic Kingdoms
iv.
4, 51)-a very high price indeed, which shews indirectly how
a
CA. XIX.
35_2
## p. 548 (#578) ############################################
548
Commercial Intercourse
a
In an
difficult it was to get slaves. During the protracted defensive wars
which had to be fought on all the frontiers prisoners were frequently
made, but these Germans, Slavs, Huns were difficult to manage and
made clumsy labourers when settled for agricultural purposes : it was
more profitable to leave them a certain independence on their plots, and
therefore to cut up large estates into small holdings. Lastly, the rise
of provincial and local interests and the change in the condition of the
labouring classes coincided with the terrible political calamities which I
have already had occasion to mention. The dislocation of the com-
monwealth rendered all widely extended economic plans insecure and
contributed by itself to the tendency of each separate locality to live its
own life and to work for its own needs without much help from the
outside. As a result of the working of these different causes society falls
back from a complicated system of commercial intercourse to the simpler
forms of “natural economy. ” This movement is not arrested by the
restoration of the Empire in the fourth century, but rather strengthened
by it. Political power is indeed restored, but it has to be maintained
by straining every nerve in social life, and this straining hampers free
movement and free contract, fastens every one to a certain place and to a
certain calling
Exposition of the whole world and of nations” translated
from Greek in the time of Constantius (soon after 345) much attention
is still paid to the economic intercourse between the different parts of
the Empire. Greece itself is said to be unable to satisfy its own needs,
but in regard to many of the other provinces it is expressly noted that
they are sufficient unto themselves. Besides, most of them produce
goods which are exported to other places. Ascalon and Gaza, for
example, are said to provide excellent wine for Syria and Egypt;
Scythopolis, Laodicea (in Syria), Byblus, Tyre, Berytus send out linen
wares all round the world, while Caesarea, Tyre, Sarepta and Neapolis
are famous in the same way for their purple-dyed tissues. Egypt
supplies Constantinople and the Eastern provinces with corn and has
a monopoly in the production of papyrus. From Cappadocia furs are
obtained, from Galatia different kinds of clothing. Laodicea in Phrygia
has given a name to garments of a special kind. Asia and the Helles-
pont produce corn, wine and oil; in Macedonia and Dalmatia, iron
and lead mines are noted ; in Dardania (Illyria) pastoral pursuits are
prevalent and bacon and cheese are sent to market, while Epirus is
distinguished by its large fishing trade. The Western provinces are not
described in such a minute way but fine Italian wines are mentioned,
the trade of Arles for imports into Gaul is noted, and Spain is extolled
on account of its oil, cloth, bacon and mules. Oil is also said to be
largely supplied by the African province, while clothing and cattle come
from Numidia. Pannonia and Mauretania are the only provinces
mentioned as carrying on the slave trade.
## p. 549 (#579) ############################################
Diocletian's Edict as to Prices
549
Some forty-five years before this commercial geography of the
Empire was drawn up, another curious document shews the imperial
authorities engaged in a wearisome struggle in order to protect easy
intercourse and to ward off the rise of prices—I mean the famous edict
of Diocletian and of his companion Emperors establishing maximum
prices in the Empire. Such measures are not taken without cogent
reasons and, indeed, we are told that prices had risen enormously,
although it is hardly probable that the reason of the dearth had to be
sought in the iniquities of the rulers (Lactantius, de mortibru perse-
cutorum, c. 7). The enactment itself dilates on the evil greed of
avaricious producers and vendors, and declares in the name of the
“fathers of human kind” that justice has to arbitrate and to intervene.
The Emperors are especially incensed at the hard bargains which are
extorted from soldiers quartered in the provinces or moving along the
roads : prices are screwed up on such occasions not to four or eight
times the ordinary value, but to an extent that could not be expressed
in words. If such things happen in times of abundance what is to be
expected from seasons when actual want is experienced? Without
attempting to fix normal prices the Emperors threaten with capital
punishment merchants engaged in supplying the different provinces
with wares : Lactantius reports that blood flowed and that the
impossibility of enforcing cheapness by the hands of executioners was
only recognised after fruitless attempts to terrorise tradesmen into
submission.
Let us look, however, at some of the details of the edict, fragments
of which have been preserved in several copies in the Balkan peninsula,
Asia Minor and Egypt, viz. , in the provinces under the direct sway of
Diocletian.
Traces of commercial intercourse of the same kind as that described
in the Expositio frequently meet the eye. We hear again of the high
class wines of Italy, of linen vestments from Laodicea, Scythopolis,
Byblus, of purple-dyed garments manufactured on the Syrian coast and
fetching very high prices, and of somewhat less expensive kinds from
Miletus : a piece of purple linen for ornamental stripes (clavi) weighing
six ounces may be sold for 13,000, 23,000 and even 32,000 denarii,
50,000 of the latter corresponding to one pound of gold' Cloth
garments came from Laodicea in Phrygia, from Modena in Italy and in
the shape of coarse, warm mantles from Flanders. In a word the lines
of commercial intercourse are clearly traced, but the difficulties en-
countered by trade under new conditions are also very
visible. Some
comparisons with extant valuations of goods ordered for soldiers enable
us to form a judgment as to the Auctuations of prices which Diocletian's
enactment tried to moderate. We hear, e. g. , that in one
case 80
1 Roughly equivalent to £46 present coinage.
a
CH. XIX.
## p. 550 (#580) ############################################
550
Economic Compulsion
pounds of bacon were estimated at 1 solidus (6000 copper denarii) and
in another instance 20 pounds at 1000 denarii. According to the tariff
of Diocletian the maximum price for bacon of the best kind would have
been in the first instance 96,000, and in the second 16,000 copper
denarii, the latter being about 16 times more than the ordinary
price.
It is important to notice that while the ordinary agricultural
labourer is not allowed to receive higher wages than 25 silver denarii
(about 120 copper denarii) per day besides board, the maximum price of
a double sextarius (roughly, about a quart) of wheat was fixed at 100
silver denarii, and that of a pound of pork at 12 silver denarii.
One cannot wonder at the failure of Diocletian's attempt, which
according to contemporary testimony only increased the evils it was
meant to suppress, the penalties against the merchants leading to
concealment of goods and interruptions of trade. But it is charac-
teristic of the methods of compulsory legislation constantly employed
by the emperors of the fourth century that Julian made a similar and
quite as unsuccessful attempt to coerce the citizens of Antioch into
fair trade.
It is impossible to suppose that such measures were dictated by a
kind of “ Caesar madness," prompting the rulers of the civilised world to
affirm their will and wisdom as against economic laws. However faulty
in its conception, the policy indicated by the edicts of Diocletian and
Julian had its roots in a well-meaning though ineffectual desire to
regulate trade and to protect fair intercourse. It may be likened, as
most attempts to impose maximum limits to prices, to the police super-
vision of trade in necessaries of life practised in besieged cities. The
emperors and their bureaucracy had come to look on the whole civilised
world subject to their authority as upon a besieged city, in which all
civil professions had to conform to military rule.
The same kind of evolution from free intercourse to compulsion may
be observed in the legislation on commercial and industrial corporations.
Roman law passed through several stages in this respect. At the time
of the Republic guilds of artisans and merchants could be formed by
private agreement if their statutes and activity did not infringe the
laws of the State (Gaius in Dig. XLVII. 22, 4). During the civil con-
ficts of the last years of the Republic and in the early Empire organised
corporations were several times dissolved and forbidden on account of
the political agitation carried on by their members, and from Augustus'
time concession by the Senate and confirmation by the Prince had to be
applied for when a new college or guild had to be formed. But police
supervision by the State did not alter the main feature of the cor-
porations, namely their spontaneous origin in the needs of society and
the wish of private persons to carry on profitable trade and to form
unions for mutual support and social intercourse. The imperial Govern-
## p. 551 (#581) ############################################
Corporations
551
ment was often inclined to repress these spontaneous tendencies, as we
may gather, e. g. , from Trajan's correspondence with Pliny.
The first indication of a further change in the relations between
government and corporations may be noticed in the reign of Alexander
Severus. This Emperor, instead of restricting the rise of trade guilds,
actually favoured the formation of corporations of wine merchants,
grocers, shoemakers and other crafts (Lampridius, Alexander Severus,
33). We may suspect that at this time, that is in the second quarter
of the third century, the Government began to perceive a slackening in
the energy of trade and commerce and chose to exert its authority in
patronising trade guilds. The restoration of imperial power under
Aurelian brought about another and more powerful attempt in the same
direction. One of the measures of this Emperor was the assumption of
a wide-reaching guardianship over the alimentation of Rome. The
supply of corn from Egypt was increased ; lists of paupers (proletarii)
entitled to be fed by the State were drawn up, and the privilege of
living at the cost of the commonwealth was made hereditary; instead of
corn bread was distributed, and along with bread-oil, salt and pork.
In connexion with this system of alimentation of the poorer classes in
Rome Aurelian reorganised the service of the merchants responsible for
the transport of corn on the Nile and on the Tiber. This throws light
on the immediate reason for the transformation of corporations in the
ensuing age: trades and crafts which had a bearing on vital needs of
social intercourse were taken under the tutelage of the Empire and
carried on henceforth, not as free professions but as compulsory services.
This is clearly seen in the legislation of Constantine and remains
characteristic of the legal treatment of trade during the whole of the
fourth and of the fifth century.
In the Lex Julia of 747 u. c. enacted by Augustus the principle
was already formulated that a combination of individual workmen or
traders into a college had to be warranted not only by their wishes and
interests but by public utility. The public element assumes now a
preponderating influence. Bakers are authorised to form a craft guild
not because they see an advantage in being organised in this way, but
because the State wants their services in regulating the trade in bread
and providing for the needs of the inhabitants of cities. The result
of this enlisting of trades and crafts into public service is a system
entirely at variance with our conceptions of supply and demand, and of
economic intercourse.
To begin with, all freedom in the choice of professions came to an
end. Corporations are required to hold their members to their occupa-
tions all through life. All attempts of single members to leave their
place of abode and customary work are considered as a flight from duty
and severely forbidden. In 395, e. g. , Arcadius and Honorius decree
heavy fines against powerful people who conceal and protect fugitive
CH. XIX.
## p. 552 (#582) ############################################
552
The Navicularii
corn.
members of curiae and collegia. For each one of the latter the patron
has to pay a fine of a pound of gold (C. Th. xn. 1, 147). The codices
are full of enactments against fugitives of this kind, and such legislation
would prove, by itself, that a régime of caste was being gradually
established in the Empire. It is certain that the invasions of barbarians,
such as those of Alaric for example, contributed powerfully to scatter
the working population, but, apart from these, one of the motives of
Alight was the heavy burden of taxation'. It is probable that the
initiative in regard to the measures of stern compulsion came not from
the bureaucrats of the Empire, but from the corporations themselves
which were made liable to the requirements of the State in case of the
flight of their members. Of course, the consistent enforcement of such
a policy actually blocked the natural selection of professions and the
development of independent enterprise.
Let us, to take a concrete example, attend somewhat closer to the
discipline imposed on the important college of navicularii. During the
first two centuries of our era the term designated all shipowners
engaged in the carrying trade by sea; gradually it came to mean
shippers employed by the State for the transport of goods, especially of
Most of the corn necessary for the population of Rome was
derived from Egypt and Africa, and we hear of a large fleet starting
from Alexandria for the purpose of carrying over the supply. There is
good evidence to shew that during the second century A. D. the college
was composed of men who had joined it as voluntary members and sought
the privileges which were conceded to it in return for its services to the
State. All this appears changed in the fourth century. The navicularii
are to devote themselves primarily to the transport of goods belonging
to the State, more particularly corn and oil for Rome and Constanti-
nople, while African navicularii were bound to bring wood for fuel to
the public baths of Rome. The Egyptian navicularii received their
cargo from the collectors of the annona, the corn tribute in the province.
The season for the
voyages of their ships was reckoned from the first of
April to the 15th of October, the other months being held free on
account of stormy weather. Each navicularius had to send his ships to
the feet once in two years. When the ship weighed anchor it had to
proceed by the shortest route and not to stop anywhere without absolute
necessity. Should one of the ships of the corn fleet be delayed in a port
the governor and Senate of the place were bound, if necessary, to use
force, in order to send the merchants out to sea again. Outside these
official journeys they had the right to move on their own behalf, but
evidently their right did not outweigh the uncomfortable limitations
imposed on them during their service period, as we find the emperors
endeavouring in every way to keep the navicularii to their task and to
prevent them from slipping out of the college. A curious letter of
1 Ammianus Marcellinus, xxxi. 6, § 6.
## p. 553 (#583) ############################################
Decay of Municipal Institutions
553
.
St Augustine tells how the bishop refused to accept the bequest of a
certain Bonifacius, an African navicularius, on behalf of the see of
Hippo. Bonifacius had disinherited his son and wanted to pass over
his property to the Church. St Augustine refuses to accept the gift,
because he does not wish to entangle the Church with the dealings of the
navicularii. In case of shipwreck the Government would order an inquiry,
the sailors rescued from the wreck would be put to torture, the Church
would have to pay for the lost cargo, etc. The members of the college
evidently had to be rich men and, sometimes, if there were gaps to be
filled, the State would compel rich men to join the corpus naviculari-
orum. The service was hereditary, and if any member absconded, his
property was forfeited to the college. These facts may be sufficient to
shew to what extent the commerce of those days suffered under the
stringent discipline imposed by the requirements of the State, and what
a queer mixture of a business man and of an official a shipowner of those
days was. I may add that, although we know most about navicularii,
bakers, purveyors of pork and similar merchants engaged in supplying
the capitals with food. The provisioning of the smaller towns and the
management of all crafts and trades were carried on more or less on
similar principles.
An important chapter in the history of the decline and fall of the
Empire is constituted by the gradual decay of municipal institutions.
The ancient world took a long time to exchange its organisation of free
cities for that of a great power, governed by a centralised bureaucracy.
Even after the conquest of its provinces the Roman commonwealth
remained substantially a confederation of cities, and municipal auto-
nomy prospered for a long while. 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.
a
CA. XIX.
35_2
## p. 548 (#578) ############################################
548
Commercial Intercourse
a
In an
difficult it was to get slaves. During the protracted defensive wars
which had to be fought on all the frontiers prisoners were frequently
made, but these Germans, Slavs, Huns were difficult to manage and
made clumsy labourers when settled for agricultural purposes : it was
more profitable to leave them a certain independence on their plots, and
therefore to cut up large estates into small holdings. Lastly, the rise
of provincial and local interests and the change in the condition of the
labouring classes coincided with the terrible political calamities which I
have already had occasion to mention. The dislocation of the com-
monwealth rendered all widely extended economic plans insecure and
contributed by itself to the tendency of each separate locality to live its
own life and to work for its own needs without much help from the
outside. As a result of the working of these different causes society falls
back from a complicated system of commercial intercourse to the simpler
forms of “natural economy. ” This movement is not arrested by the
restoration of the Empire in the fourth century, but rather strengthened
by it. Political power is indeed restored, but it has to be maintained
by straining every nerve in social life, and this straining hampers free
movement and free contract, fastens every one to a certain place and to a
certain calling
Exposition of the whole world and of nations” translated
from Greek in the time of Constantius (soon after 345) much attention
is still paid to the economic intercourse between the different parts of
the Empire. Greece itself is said to be unable to satisfy its own needs,
but in regard to many of the other provinces it is expressly noted that
they are sufficient unto themselves. Besides, most of them produce
goods which are exported to other places. Ascalon and Gaza, for
example, are said to provide excellent wine for Syria and Egypt;
Scythopolis, Laodicea (in Syria), Byblus, Tyre, Berytus send out linen
wares all round the world, while Caesarea, Tyre, Sarepta and Neapolis
are famous in the same way for their purple-dyed tissues. Egypt
supplies Constantinople and the Eastern provinces with corn and has
a monopoly in the production of papyrus. From Cappadocia furs are
obtained, from Galatia different kinds of clothing. Laodicea in Phrygia
has given a name to garments of a special kind. Asia and the Helles-
pont produce corn, wine and oil; in Macedonia and Dalmatia, iron
and lead mines are noted ; in Dardania (Illyria) pastoral pursuits are
prevalent and bacon and cheese are sent to market, while Epirus is
distinguished by its large fishing trade. The Western provinces are not
described in such a minute way but fine Italian wines are mentioned,
the trade of Arles for imports into Gaul is noted, and Spain is extolled
on account of its oil, cloth, bacon and mules. Oil is also said to be
largely supplied by the African province, while clothing and cattle come
from Numidia. Pannonia and Mauretania are the only provinces
mentioned as carrying on the slave trade.
## p. 549 (#579) ############################################
Diocletian's Edict as to Prices
549
Some forty-five years before this commercial geography of the
Empire was drawn up, another curious document shews the imperial
authorities engaged in a wearisome struggle in order to protect easy
intercourse and to ward off the rise of prices—I mean the famous edict
of Diocletian and of his companion Emperors establishing maximum
prices in the Empire. Such measures are not taken without cogent
reasons and, indeed, we are told that prices had risen enormously,
although it is hardly probable that the reason of the dearth had to be
sought in the iniquities of the rulers (Lactantius, de mortibru perse-
cutorum, c. 7). The enactment itself dilates on the evil greed of
avaricious producers and vendors, and declares in the name of the
“fathers of human kind” that justice has to arbitrate and to intervene.
The Emperors are especially incensed at the hard bargains which are
extorted from soldiers quartered in the provinces or moving along the
roads : prices are screwed up on such occasions not to four or eight
times the ordinary value, but to an extent that could not be expressed
in words. If such things happen in times of abundance what is to be
expected from seasons when actual want is experienced? Without
attempting to fix normal prices the Emperors threaten with capital
punishment merchants engaged in supplying the different provinces
with wares : Lactantius reports that blood flowed and that the
impossibility of enforcing cheapness by the hands of executioners was
only recognised after fruitless attempts to terrorise tradesmen into
submission.
Let us look, however, at some of the details of the edict, fragments
of which have been preserved in several copies in the Balkan peninsula,
Asia Minor and Egypt, viz. , in the provinces under the direct sway of
Diocletian.
Traces of commercial intercourse of the same kind as that described
in the Expositio frequently meet the eye. We hear again of the high
class wines of Italy, of linen vestments from Laodicea, Scythopolis,
Byblus, of purple-dyed garments manufactured on the Syrian coast and
fetching very high prices, and of somewhat less expensive kinds from
Miletus : a piece of purple linen for ornamental stripes (clavi) weighing
six ounces may be sold for 13,000, 23,000 and even 32,000 denarii,
50,000 of the latter corresponding to one pound of gold' Cloth
garments came from Laodicea in Phrygia, from Modena in Italy and in
the shape of coarse, warm mantles from Flanders. In a word the lines
of commercial intercourse are clearly traced, but the difficulties en-
countered by trade under new conditions are also very
visible. Some
comparisons with extant valuations of goods ordered for soldiers enable
us to form a judgment as to the Auctuations of prices which Diocletian's
enactment tried to moderate. We hear, e. g. , that in one
case 80
1 Roughly equivalent to £46 present coinage.
a
CH. XIX.
## p. 550 (#580) ############################################
550
Economic Compulsion
pounds of bacon were estimated at 1 solidus (6000 copper denarii) and
in another instance 20 pounds at 1000 denarii. According to the tariff
of Diocletian the maximum price for bacon of the best kind would have
been in the first instance 96,000, and in the second 16,000 copper
denarii, the latter being about 16 times more than the ordinary
price.
It is important to notice that while the ordinary agricultural
labourer is not allowed to receive higher wages than 25 silver denarii
(about 120 copper denarii) per day besides board, the maximum price of
a double sextarius (roughly, about a quart) of wheat was fixed at 100
silver denarii, and that of a pound of pork at 12 silver denarii.
One cannot wonder at the failure of Diocletian's attempt, which
according to contemporary testimony only increased the evils it was
meant to suppress, the penalties against the merchants leading to
concealment of goods and interruptions of trade. But it is charac-
teristic of the methods of compulsory legislation constantly employed
by the emperors of the fourth century that Julian made a similar and
quite as unsuccessful attempt to coerce the citizens of Antioch into
fair trade.
It is impossible to suppose that such measures were dictated by a
kind of “ Caesar madness," prompting the rulers of the civilised world to
affirm their will and wisdom as against economic laws. However faulty
in its conception, the policy indicated by the edicts of Diocletian and
Julian had its roots in a well-meaning though ineffectual desire to
regulate trade and to protect fair intercourse. It may be likened, as
most attempts to impose maximum limits to prices, to the police super-
vision of trade in necessaries of life practised in besieged cities. The
emperors and their bureaucracy had come to look on the whole civilised
world subject to their authority as upon a besieged city, in which all
civil professions had to conform to military rule.
The same kind of evolution from free intercourse to compulsion may
be observed in the legislation on commercial and industrial corporations.
Roman law passed through several stages in this respect. At the time
of the Republic guilds of artisans and merchants could be formed by
private agreement if their statutes and activity did not infringe the
laws of the State (Gaius in Dig. XLVII. 22, 4). During the civil con-
ficts of the last years of the Republic and in the early Empire organised
corporations were several times dissolved and forbidden on account of
the political agitation carried on by their members, and from Augustus'
time concession by the Senate and confirmation by the Prince had to be
applied for when a new college or guild had to be formed. But police
supervision by the State did not alter the main feature of the cor-
porations, namely their spontaneous origin in the needs of society and
the wish of private persons to carry on profitable trade and to form
unions for mutual support and social intercourse. The imperial Govern-
## p. 551 (#581) ############################################
Corporations
551
ment was often inclined to repress these spontaneous tendencies, as we
may gather, e. g. , from Trajan's correspondence with Pliny.
The first indication of a further change in the relations between
government and corporations may be noticed in the reign of Alexander
Severus. This Emperor, instead of restricting the rise of trade guilds,
actually favoured the formation of corporations of wine merchants,
grocers, shoemakers and other crafts (Lampridius, Alexander Severus,
33). We may suspect that at this time, that is in the second quarter
of the third century, the Government began to perceive a slackening in
the energy of trade and commerce and chose to exert its authority in
patronising trade guilds. The restoration of imperial power under
Aurelian brought about another and more powerful attempt in the same
direction. One of the measures of this Emperor was the assumption of
a wide-reaching guardianship over the alimentation of Rome. The
supply of corn from Egypt was increased ; lists of paupers (proletarii)
entitled to be fed by the State were drawn up, and the privilege of
living at the cost of the commonwealth was made hereditary; instead of
corn bread was distributed, and along with bread-oil, salt and pork.
In connexion with this system of alimentation of the poorer classes in
Rome Aurelian reorganised the service of the merchants responsible for
the transport of corn on the Nile and on the Tiber. This throws light
on the immediate reason for the transformation of corporations in the
ensuing age: trades and crafts which had a bearing on vital needs of
social intercourse were taken under the tutelage of the Empire and
carried on henceforth, not as free professions but as compulsory services.
This is clearly seen in the legislation of Constantine and remains
characteristic of the legal treatment of trade during the whole of the
fourth and of the fifth century.
In the Lex Julia of 747 u. c. enacted by Augustus the principle
was already formulated that a combination of individual workmen or
traders into a college had to be warranted not only by their wishes and
interests but by public utility. The public element assumes now a
preponderating influence. Bakers are authorised to form a craft guild
not because they see an advantage in being organised in this way, but
because the State wants their services in regulating the trade in bread
and providing for the needs of the inhabitants of cities. The result
of this enlisting of trades and crafts into public service is a system
entirely at variance with our conceptions of supply and demand, and of
economic intercourse.
To begin with, all freedom in the choice of professions came to an
end. Corporations are required to hold their members to their occupa-
tions all through life. All attempts of single members to leave their
place of abode and customary work are considered as a flight from duty
and severely forbidden. In 395, e. g. , Arcadius and Honorius decree
heavy fines against powerful people who conceal and protect fugitive
CH. XIX.
## p. 552 (#582) ############################################
552
The Navicularii
corn.
members of curiae and collegia. For each one of the latter the patron
has to pay a fine of a pound of gold (C. Th. xn. 1, 147). The codices
are full of enactments against fugitives of this kind, and such legislation
would prove, by itself, that a régime of caste was being gradually
established in the Empire. It is certain that the invasions of barbarians,
such as those of Alaric for example, contributed powerfully to scatter
the working population, but, apart from these, one of the motives of
Alight was the heavy burden of taxation'. It is probable that the
initiative in regard to the measures of stern compulsion came not from
the bureaucrats of the Empire, but from the corporations themselves
which were made liable to the requirements of the State in case of the
flight of their members. Of course, the consistent enforcement of such
a policy actually blocked the natural selection of professions and the
development of independent enterprise.
Let us, to take a concrete example, attend somewhat closer to the
discipline imposed on the important college of navicularii. During the
first two centuries of our era the term designated all shipowners
engaged in the carrying trade by sea; gradually it came to mean
shippers employed by the State for the transport of goods, especially of
Most of the corn necessary for the population of Rome was
derived from Egypt and Africa, and we hear of a large fleet starting
from Alexandria for the purpose of carrying over the supply. There is
good evidence to shew that during the second century A. D. the college
was composed of men who had joined it as voluntary members and sought
the privileges which were conceded to it in return for its services to the
State. All this appears changed in the fourth century. The navicularii
are to devote themselves primarily to the transport of goods belonging
to the State, more particularly corn and oil for Rome and Constanti-
nople, while African navicularii were bound to bring wood for fuel to
the public baths of Rome. The Egyptian navicularii received their
cargo from the collectors of the annona, the corn tribute in the province.
The season for the
voyages of their ships was reckoned from the first of
April to the 15th of October, the other months being held free on
account of stormy weather. Each navicularius had to send his ships to
the feet once in two years. When the ship weighed anchor it had to
proceed by the shortest route and not to stop anywhere without absolute
necessity. Should one of the ships of the corn fleet be delayed in a port
the governor and Senate of the place were bound, if necessary, to use
force, in order to send the merchants out to sea again. Outside these
official journeys they had the right to move on their own behalf, but
evidently their right did not outweigh the uncomfortable limitations
imposed on them during their service period, as we find the emperors
endeavouring in every way to keep the navicularii to their task and to
prevent them from slipping out of the college. A curious letter of
1 Ammianus Marcellinus, xxxi. 6, § 6.
## p. 553 (#583) ############################################
Decay of Municipal Institutions
553
.
St Augustine tells how the bishop refused to accept the bequest of a
certain Bonifacius, an African navicularius, on behalf of the see of
Hippo. Bonifacius had disinherited his son and wanted to pass over
his property to the Church. St Augustine refuses to accept the gift,
because he does not wish to entangle the Church with the dealings of the
navicularii. In case of shipwreck the Government would order an inquiry,
the sailors rescued from the wreck would be put to torture, the Church
would have to pay for the lost cargo, etc. The members of the college
evidently had to be rich men and, sometimes, if there were gaps to be
filled, the State would compel rich men to join the corpus naviculari-
orum. The service was hereditary, and if any member absconded, his
property was forfeited to the college. These facts may be sufficient to
shew to what extent the commerce of those days suffered under the
stringent discipline imposed by the requirements of the State, and what
a queer mixture of a business man and of an official a shipowner of those
days was. I may add that, although we know most about navicularii,
bakers, purveyors of pork and similar merchants engaged in supplying
the capitals with food. The provisioning of the smaller towns and the
management of all crafts and trades were carried on more or less on
similar principles.
An important chapter in the history of the decline and fall of the
Empire is constituted by the gradual decay of municipal institutions.
The ancient world took a long time to exchange its organisation of free
cities for that of a great power, governed by a centralised bureaucracy.
Even after the conquest of its provinces the Roman commonwealth
remained substantially a confederation of cities, and municipal auto-
nomy prospered for a long while. 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.
