Functionaries in Italy were changed with the rapidity which oftensurprises us in the administration of Rome herself; so that thesuperintendence of a large laded domain by an Italian corporationmust have been excessively imperfect. Accordingly, we are toldthat with the municipalities began the practice of letting outagri vectigules, that is, of leasing land for a perpetuity to afree tenant, at a fixed rent, and under certain conditions. Theplan was afterwards extensively imitated by individualproprietors, and the tenant, whose relation to the owner hadoriginally been determined by his contract, was subsequentlyrecognised by the Praetor as having himself a qualifiedproprietorship, which in time became known as an Emphyteusis.
From this point the history of tenure parts into two branches. Inthe course of that long period during which our records of theRoman Empire are most incomplete, the slave-gangs of the greatRoman families became transformed into the coloni, whose originand situation constitute one of the obscurest questions in allHistory. We may suspect that they were formed partly by theelevation of the slaves, and partly by the degradation of thefree farmers; and that they prove the richer classes of the RomanEmpire to have become aware of the increased value which landedproperty obtains when the cultivator had an interest in theproduce of the land. We know that their servitude was predial;that it wanted many of the characteristics of absolute slavery,and that they acquitted their service to the landlord inrendering to him a fixed portion of the annual crop. We knowfurther that they survived all the mutations of society in theancient and modern worlds. Though included in the lower coursesof the feudal structure, they continued in many countries torender to the landlord precisely the same dues which they hadpaid to the Roman dominus, and from a particular class amongthem, the coloni medietarii who reserved half the produce for theowner, are descended the metayer tenantry, who still conduct thecultivation of the soil in almost all the South of Europe. On theother hand, the Emphyteusis, if we may so interpret the allusionsto it in the Corpus Juris, became a favourite and beneficialmodification of property; and it may be conjectured that whereverfree farmers existed, it was this tenure which regulated theirinterest in the land. The Praetor, as has been said, treated theEmphyteuta as a true proprietor. When ejected, he was allowed toreinstate himself by a Real Action, the distinctive badge ofproprietory right, and he was protected from disturbance by theauthor of his lease so long as the canon, or quit-rent, waspunctually paid. But at the same time it must not be supposedthat the ownership of the author of the lease was either extinctor dormant. It was kept alive by a power of re-entry onnonpayment of the rent, a right of pre-emption in case of sale,and a certain control over the mode of cultivation. We have,therefore, in the Emphyteusis a striking example of the doubleownership which characterised feudal property, and one, moreover,which is much simpler and much more easily imitated than thejuxtaposition of legal and equitable rights. The History of theRoman tenure does not end, However, at this point. We have clearevidence that between the great fortresses which, disposed alongthe line of the Rhine and Danube, long secured the frontier ofthe Empire against its barbarian neighbours, there extended asuccession of strips of land, the agri limitrophi, which wereoccupied by veteran soldiers of the Roman army on the terms of anEmphyteusis. There was a double ownership. The Roman State waslandlord of the soil, but the soldiers cultivated it withoutdisturbance so long as they held themselves ready to be calledout for military service whenever the state of the border shouldrequire it. In fact, a sort of garrison-duty, under a systemclosely resembling that of the military colonies on theAustro-Turkish border, had taken the place of the quit-rent whichwas the service of the ordinary Emphyteuta. It seems impossibleto doubt that this was the precedent copied by the barbarianmonarchs who founded feudalism. It had been within their view forsome hundred years, and many of the veterans who guarded theborder were, it is to be remembered, themselves of barbarianextraction, who probably spoke the Germanic tongues. Not onlydoes the proximity of so easily followed a model explain whencethe Frankish and Lombard Sovereigns got the idea of securing themilitary service of their followers by granting away portions oftheir public domain; but it perhaps explains the tendency whichimmediately showed itself in the Benefices to become hereditary,for an Emphyteusis, though capable of being moulded to the termsof the original contract, nevertheless descended as a generalrule to the heirs of the grantee. It is true that the holder of abenefice, and more recently the lord of one of those fiefs intowhich the benefices were transformed, appears to have owedcertain services which were not likely to have been rendered bythe military colonist, and were certainly not rendered by theEmphyteuta. The duty of respect and gratitude to the feudalsuperior, the obligation to assist in endowing his daughter andequipping his son, the liability to his guardianship in minority,and many other similar incidents of tenure, must have beenliterally borrowed from the relations of Patron and Freedmanunder Roman law, that is, of quondam-master and quondam-slave.
But then it is known that the earliest beneficiaries were thepersonal companions of the sovereign, and it is indisputable thatthis position, brilliant as it seems, was at first attended bysome shade of servile debasement. The person who ministered tothe Sovereign in his Court had given up something of thatabsolute personal freedom which was the proudest privilege of theallodial proprietor.
Ancient Law by Henry Maine
