19.10. The Development of the Medieval Legal Framework
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 term emphyteusis first appears 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 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 intercourse 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. 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 surrounded 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 jurisdiction and administration of the towns. By and by the seemingly omnipotent government of the emperor is driven by its difficulties to 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 confession 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.
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