19.9. The Agrarian Crisis of the 4th Century
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 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 voloni, 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 lalifundia of earlier times were parcelled up into small plots, because only small cultivators could stand the storm of hostile invasion, of dislocation 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 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 an ameliorative 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 enactment 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 aGreek expression which reappears 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 docs not carry them out. These peculiarities were so marked that there was considerable 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, 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 subordinate 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, 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 compensate 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.
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