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Ancient Law - CHAPTER VIII continue






6. CHAPTER V continue


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11. CHAPTER VIII continue


13. CHAPTER IX continue


They were at first unknown, rare,
limited in their uses, or else regarded as mere
appendages to the privileged objects. Thus,
though the Roman Res Mancipi included a num-
ber of movable articles of great value, still the
most costly jewels were never allowed to take rank
as Res Mancipi, because they were unknown to
the early Romans. In the same way chattels real
in England are said to have been degraded to the
footing of personalty, from the infrequency and
valuelessness of such estates under the feudal
land-law. But the grand point of interest is the
continued degradation of these commodities when
their importance had increased and their number
had multiplied. Why were they not successively
included among the favoured objects of enjoy-
ment ? One reason is found in the stubbornness
with which Ancient Law adheres to its classifica-
tions. It is a characteristic both of uneducated
minds and of early societies, that they are little
able to conceive a general rule apart from the
particular applications of it with which they are
practically familiar. They cannot dissociate a
general term or maxim from the special examples
which meet them in daily experience ; and in this
way the designation covering the best-known forms
of property is denied to articles which exactly
resemble them in being objects of enjoyment and
subjects of right. But to these influences, which
exert peculiar force in a subject-matter so stable
as that of law, are afterwards added others more
consistent with progress in enlightenment and in
the conceptions of general expediency. Courts and
lawyers become at last alive to the inconvenience
of the embarrassing formalities required for the
transfer, recovery, or devolution of the favoured
commodities, and grow unwilling to fetter the
newer descriptions of property with the technical
trammels which characterised the infancy of law.
Hence arises a disposition to keep these last on a
lower grade in the arrangements of Jurisprudence,
and to permit their transfer by simpler processes
than those which, in archaic conveyances, serve
as stumbling-blocks to good faith and stepping-
stones to fraud. We are perhaps in some danger
of under-rating the inconveniences of the ancient
modes of transfer. Our instruments of conveyance
are written, so that their language, well pondered
by the professional draftsman, is rarely defective
in accuracy. But an ancient conveyance was not
written, but acted. Gestures and words took the
place of written technical phraseology, and any
formula mispronounced, or symbolical act omitted,
would have vitiated the proceeding as fatally as a


material mistake in stating the uses or setting out
the remainders would, two hundred years ago,
have vitiated an English deed. Indeed, the mis-
chiefs of the archaic ceremonial are even thus only
half stated. So long as elaborate conveyances,
written or acted, are required for the alienation
of land alone, the chances of mistake are not
considerable in the transfer of a description of
property which is seldom got rid of with much
precipitation. But the higher class of property
in the ancient world comprised not only land but
several of the commonest and several of the most
valuable movables. When once the wheels of
society had begun to move quickly, there must
have been immense inconvenience in demanding
a highly intricate form of transfer for a horse or
an ox, or for the most costly chattel of the old
world the Slave. Such commodities must have
been constantly and even ordinarily conveyed
with incomplete forms, and held, therefore, under
imperfect titles.

The Res Mancipi of old Roman law were,
land, in historical times, land on Italian soil,
slaves and beasts of burden, such as horses and
oxen. It is impossible to doubt that the objects
which make up the class are the instruments of
agricultural labour, the commodities of first con-
sequence to a primitive people. Such commodities
were at first, I imagine, called emphatically Things
or Property, and the mode of conveyance by which
they were transferred was called a Mancipium or
Mancipation ; but it was not probably till much
later that they received the distinctive appellation
of Res Mancipi, " Things which require a Mancipa-


tion." By their side there may have existed or
grown up a class of objects, for which it was not
worth while to insist upon the full ceremony of
Mancipation. If would be enough if, in trans-
ferring these last from owner to owner, a part only
of the ordinary formalities were proceeded with,
namely, that actual delivery, physical transfer, or
tradition, which is the most obvious index of a
change of proprietorship. Such commodities were
the Res Nee Mancipi of the ancient jurisprudence,
" things which did not require a Mancipation/'
little prized probably at first, and not often passed
from one group of proprietors to another. While,
however, the list of the Res Mancipi was irrevoc-
ably closed, that of the Res Nee Mancipi admitted
of indefinite expansion ; and hence every fresh
conquest of man over material nature added an
item to the Res Nee Mancipi, or effected an im-
provement in those already recognised. Insen-
sibly, therefore, they mounted to an equality with
the Res Mancipi, and the impression of an intrinsic
inferiority being thus dissipated, men began to
observe the manifold advantages of the simple
formality which accompanied their transfer over
the more intricate and more venerable ceremonial.
Two of the agents of legal amelioration, Fictions
and Equity, were assiduously employed by the
Roman lawyers to give the practical effects of a
Mancipation to a Tradition ; and, though Roman
legislators long shrank from enacting that the
right of property in a Res Mancipi should be
immediately transferred by bare delivery of the
article, yet even this step was at last ventured
upon by Justinian, in whose jurisprudence the


difference between Res Mancipi and Res Nee
Mancipi disappears, and Tradition or Delivery
becomes the one great conveyance known to the
law. The marked preference which the Roman
lawyers very early gave to Tradition caused them
to assign it a place in their theory which has helped
to blind their modern disciples to its true history.
It was classed among the " natural " modes of
acquisition, both because it was generally practised
among the Italian tribes, and because it was a
process which attained its object by the simplest
mechanism. If the expressions of the jurisconsults
be pressed, they undoubtedly imply that Tradition,
which belongs to the Law Natural, is more ancient
than Mancipation, which is an institution of Civil
Society ; and this, I need not say, is the exact
reverse of the truth.

The distinction between Res Mancipi and Res
Nee Mancipi is the type of a class of distinctions
to which civilisation is much indebted, distinctions
which run through the whole mass of commodities,
placing a few of them in a class by themselves,
and relegating the others to a lower category.
The inferior kinds of property are first, from dis-
dain and disregard, released from the perplexed
ceremonies in which primitive law delights, and
then afterwards, in another state of intellectual
progress, the simple methods of transfer and re-
covery which have been allowed to come into
use serve as a model which condemns by its con-
venience and simplicity the cumbrous solemnities
inherited from ancient days. But in some societies,
the trammels in which Property is tied up are
much too complicated and stringent to be relaxed


in so easy a manner. Whenever male children
have been born to a Hindoo, the law of India, as
I have stated, gives them all an interest in his
property, and makes their consent a necessary
condition of its alienation. In the same spirit,
the general usage of the old Germanic peoples it
is remarkable that the Anglo-Saxon customs seem
to have been an exception forbade alienations
without the consent of the male children ; and
the primitive law of the Sclavonians even pro-
hibited them altogether. It is evident that such
impediments as these cannot be overcome by a
distinction between kinds of property, inasmuch
as the difficulty extends to commodities of all
sorts ; and accordingly, Ancient Law, when once
launched on a course of improvement, encounters
them with a distinction of another character, a
distinction classifying property, not according to
its nature but according to its origin. In India,
where there are traces of both systems of classi-
fication, the one which we are considering is
exemplified in the difference which Hindoo law
establishes between Inheritances and Acquisitions.
The inherited property of the father is shared by
the children as soon as they are born ; but accord-
ing to the custom of most provinces, the acquisi-
tions made by him during his lifetime are wholly
his own, and can be transferred by him at pleasure.
A similar distinction was not unknown to Roman
Law, in which the earliest innovation on the
Parental Powers took the form of a permission
given to the son to keep for himself whatever he
might have acquired in military service. But the
most extensive use ever made of this mode of


classification appears to have been among the
Germans. I have repeatedly stated that the allod y
though not inalienable, was commonly transferable
with the greatest difficulty ; and moreover, it
descended exclusively to the agnatic kindred.
Hence an extraordinary variety of distinctions
came to be recognised, all intended to diminish the
inconveniences inseparable from allodial property.
The wehrgeld, for example, or composition for the
homicide of a relative, which occupies so large a
space in German jurisprudence, formed no part of
the family domain, and descended according to
rules of succession altogether different. Similarly,
the reipus y or fine leviable on the re-marriage of a
widow, did not enter into the allod of the person
to whom it was paid, and followed a line of devo.
lution in which the privileges of the agnates were
neglected. The law, too, as among the Hindoos,
distinguished the Acquisitions of the chief of the
household from his Inherited property, and per-
mitted him to deal with them under much more
liberal conditions. Classifications of the other sort
were also admitted, and the familiar distinction
drawn between land and movables ; but movable
property was divided into several subordinate
categories, to each of which different rules applied.
This exuberance of classification, which may strike
us as strange in so rude a people as the German
conquerors of the Empire, is doubtless to be ex-
plained by the presence in their systems of a
considerable element of Roman Law, absorbed by
them during their long sojourn on the confines of
the Roman dominion. It is not difficult to trace
a great number of the rules governing the transfer


and devolution of the commodities which lay out-
side the allod, to their source in Roman jurispru-
dence, from which they were probably borrowed
at widely distant epochs, and in fragmentary
importations. How far the obstacles to the free
circulation of property were surmounted by such
contrivances, we have not the means even of
conjecturing, for the distinctions adverted to have
no modern history. As I before explained, the
allodial form ot property was entirely lost in the
feudal, and when the consolidation of feudalism
was once completed, there was practically but one
distinction left standing of all those which had
been known to the western world the distinction
between land and goods, immovables and mov-
ables. Externally this distinction was the same
with that which Roman law had finally accepted,
but the law of the middle ages differed from that
of Rome in distinctly considering immovable
property to be more dignified than movable.
Yet this one sample is enough to show the im-
portance of the class of expedients to which it
belongs. In all the countries governed by systems
based on the French codes, that is, through much
the greatest part of the Continent of Europe, the
law of movables, which was always Roman law,
has superseded and annulled the feudal law of
land. England is the only country of importance
in which this transmutation, though it has gone
some way, is not nearly accomplished. Our own,
too, it may be added, is the only considerable
European country in which the separation of
movables from immovables has been somewhat
disturbed by the same influences which caused


the ancient classifications to depart from the only
one which is countenanced by nature. In the
main, the English distinction has been between
land and goods ; but a certain class of goods have
gone as heir-looms with the land, and a certain
description of interests in land have from historical
causes been ranked with personalty. This is not
the only instance in which English jurisprudence,
standing apart from the main current of legal
modification, has reproduced phenomena of archaic

I proceed to notice one or two more con-
trivances by which the ancient trammels of
proprietary right were more or less successfully
relaxed, premising that the scheme of this treatise
only permits me to mention those which are of
great antiquity. On one of them in particular
it is necessary to dwell for a moment or two,
because persons unacquainted with the early
history of law will not t/e easily persuaded that
a principle, of which modern jurisprudence has
very slowly and with the greatest difficulty
obtained the recognition, was really familiar to
the very infancy of legal science. There is no
principle in all law which the moderns, in spite
of its beneficial character, have been so loath to
adopt and to carry to its legitimate consequences
as that which was known to the Romans as
Usucapion, and which has descended to modern
jurisprudence under the name of Prescription.
It was a positive rule of the oldest Roman law,
a rule older than the Twelve Tables, that com-
modities which had been uninterruptedly pos-
sessed for a certain period became the property of


the possessor. The period of possession was
exceedingly short one or two years, according to
the nature of the commodities and in historical
times Usucapion was only allowed to operate
when possession had commenced in a particular
way ; but I think it likely that at a less advanced
epoch possession was converted into ownership
under conditions even less severe than we read
of in our authorities. As I have said before,
I am far from asserting that the respect of men
for de facto possession is a phenomenon which
jurisprudence can account for by itself, but it is
very necessary to remark that primitive societies,
in adopting the principle of Usucapion, were not
beset with any of the speculative doubts and
hesitations which have impeded its reception
among the moderns. Prescriptions were viewed
by the modern lawyers, first with repugnance,
afterwards with reluctant approval. In several
countries, including our own, legislation long
declined to advance beyond the rude device of
barring all actions based on a wrong whch had
been suffered earlier than a fixed point of time
in the past, generally the first year of some
preceding reign ; nor was it till the middle ages
had finally closed, and James the First had
ascended the throne of England, that we obtained
a true statute of limitation of a very imperfect
kind. This tardiness in copying one of the most
famous chapters of Roman law, which was no
doubt constantly read by the majority of European
lawyers, the modern world owes to the influence
of the Canon Law. The ecclesiastical customs
out of which the Canon Law grew, concerned as


they were with sacred or quasi-sacred interests,
very naturally regarded the privileges which they
conferred as incapable of being lost through disuse
however prolonged ; and in accordance with this
view, the spiritual jurisprudence, when afterwards
consolidated, was distinguished by a marked
leaning against Prescriptions. It was the fate
of the Canon Law, when held up by the clerical
lawyers as a pattern to secular legislation, to have
a peculiar influence on first principles. It gave
to the bodies of custom which were formed
throughout Europe far fewer express rules than
did the Roman law, but then it seems to have
communicated a bias to professional opinion on
a surprising number of fundamental points, and
the tendencies thus produced progressively gained
strength as each system was developed. One of
the dispositions it produced was a disrelish for
Prescriptions ; but I do not know that this pre-
judice would have operated as powerfully as it
has done, if it had not fallen in with the doctrine
of the scholastic jurists of the realist sect, who
taught that, whatever turn actual legislation
might take, a right, how long soever neglected,
was in point of fact indestructible. The remains
of this state of feeling still exist. Wherever the
philosophy of law is earnestly discussed, questions
respecting the speculative basis of Prescription
are always hotly disputed ; and it is still a point
of the greatest interest in France and Germany,
whether a person who has been out of possession
for a series of years is deprived of his ownership
as a penalty for his neglect, or loses it through the
summary interposition of the law in its desire


to have a finis litium. But no such scruples
troubled the mind of early Roman society. Their
ancient usages directly took away the ownership
of everybody who had been out of possession,
under certain circumstances, during one or two
years. What was the exact tenor of the rule of
Usucapion in its earliest shape, it is not easy to
say ; but, taken with the limitations which we
find attending it in the books, it was a most useful
security against the mischiefs of a too cumbrous
system of conveyance. In order to have the
benefit of Usucapion, it was necessary that the
adverse possession should have begun in good
faith, that is, with belief on the part of the possessor
that he was lawfully acquiring the property,
and it was further required that the commodity
should have been transferred to him by some
mode of alienation which, however unequal to
conferring a complete title in the particular case,
was at least recognised by the law. In the case
therefore of a Mancipation, however slovenly the
performance might have been, yet if it had been
carried so far as to involve a Tradition or Delivery,
the vice of the title would be cured by Usucapion
in two years at most. I know nothing in the
practice of the Romans which testifies so strongly
to their legal genius as the use which they made
of Usucapion. The difficulties which beset them
were nearly the same with those which embarrassed
and still embarrass the lawyers of England.
Owing to the complexity of their system, which
as yet they had neither the courage nor the power
to reconstruct, actual right was constantly getting
divorced from technical right, the equitable


ownership from the legal. But Usucapion, as
manipulated by the jurisconsults, supplied a
self-acting machinery, by which the defects of
titles to property were always in course of being
cured, and by which the ownerships that were
temporarily separated were again rapidly cemented
together with the briefest possible delay. Usu-
capion did not lose its advantages till the reforms
of Justinian. But as soon as law and equity
had been completely fused, and when Mancipation
ceased to be the Roman conveyance, there was
no further necessity for the ancient contrivance,
and Usucapion, with its periods of time consider-
ably lengthened, became the Prescription which
has at length been adopted by nearly all systems
of modern law.

I pass by with brief mention another expedient
having the same ( ject with the last, which,
though it did not immediately make its appearance
in English legal history, was of immemorial
antiquity in Roman law ; such indeed is its
apparent age that some German civilians, not
sufficiently aware of the light thrown on the
subject by the analogies of English law, have
thought it even older than the Mancipation. I
speak of +he Cessio in Jure, a collusive recovery,
in a Court of Law, of property sought to be
conveyed. The plaintiff claimed the subject of
this proceeding with the ordinary forms of a
litigation ; the defendant made default ; and the
commodity was of course adjudged to the plaintiff.
1 need scarcely remind the English lawyer that
this expedient suggested itself to our forefathers,
and produced those famous Fines and Recoveries


which did so much to undo the harshest trammels
of the feudal land-law. The Roman and English
contrivances have very much in common and
illustrate each other most instructively, but there
is this difference between them, that the object
of the English lawyers was to remove complications
already introduced into the title, while the Roman
jurisconsults sought to prevent them by sub-
stituting a mode of transfer necessarily unim-
peachable for one which too often miscarried.
The device is in fact one which suggests itself
as soon as Courts of Law are in steady operation,
but are nevertheless still under the empire of
primitive notions. In an advanced state of legal
opinion, tribunals regard collusive litigation as
an abuse of their procedure ; but there has always
been a time when, if their forms were scrupulously
complied with, they never T dreamed of looking

The influence of Courts of Law and of their
procedure upon Property has been most extensive,
but the subject is too large for the dimensions of
this treatise, and would carry us further down
the course of legal history than is consistent with
its scheme. It is desirable, however, to mention,
that to this influence we must attribi^Je the im-
portance of the distinction between Property and
Possession not, indeed, the distinction itself,
which (in the language of an eminent English
civilian) is the same thing as the distinction
between the legal right to act upon a thing and
the physical power to do so but the extraordinary
importance which the distinction has obtained
in the philosophy of law. Few educated persons


are so little versed in legal literature as not to
have heard that the language of the Roman juris-
consults on the subject of Possession long occa-
sioned the greatest possible perplexity, and that
the genius of Savigny is supposed to have chiefly
proved itself by the solution which he discovered
for the enigma. Possession, in fact, when em-
ployed by the Roman lawyers, appears to have
contracted a shade of meaning not easily accounted
for. The word, as appears from its etymology,
must have originally denoted physical contact
or physical contact resumable at pleasure ; but
as actually used, without any qualifying epithet,
it signifies not simply physical detention, but
physical detention coupled with the intention to
hold the thing detained as one's own. Savigny,
following Niebuhr, perceived that for this anomaly
there could only be a historical origin. He
pointed out that the Patrician burghers of Rome,
who had become tenants of the greatest part
of the public domain at nominal rents, were, in
the view of the old Roman law, mere possessors,
but then they were possessors intending to keep
their land against all comers. They, in truth,
put forward a claim almost identical with that
which has recently been advanced in England
by the lessees of Church lands. Admitting that
in theory they were the tenants-at-will of the
State, they contended that time and undisturbed
enjpyment had ripened their holding into a species
of ownership, and that it would be unjust to eject
them for the purpose of redistributing the domain.
The association of this claim with the Patrician
tenancies, permanently influenced the sense of


" possession." Meanwhile the only legal remedies
of which the tenants could avail themselves,
if ejected or threatened with disturbance, were
the Possessory Interdicts, summar^jrocesses of
Roman law wtuch_wgre eitfier expressly devised
byjjie Praetor, jor iheir^protectipn^. or _ else, ac-
cording to another theory, had in olden times
been employed for the provisional maintenance of
possessions pending the settlement" oTquestions of
legal right? It cam^fherefore, to be understood
that everybody who possessed property as his
own had the power of demanding the Interdicts,
and, by a system of highly artificial pleading,
the Interdictal process was moulded into a shape
fitted for the trial of conflicting claims to a dis-
puted possession. Then commenced a movement
which, as Mr. John Austin pointed out, exactly
reproduced itself in English law. Proprietors,
domini, began to prefer the simpler forms or
speedier course of the Interdict to the lagging
and intricate formalities of the Real Action, and
for the purpose of availing themselves of the
possessory remedy fell back upon the possession
which was supposed to be involved in their
proprietorship. The liberty conceded to persons
who were not true Possessors, but Owners, to
vindicate their rights by possessory remedies,
though it may have been at first a boon, had
ultimately the effect of seriously deteriorating
both English and Roman jurisprudence. The
Roman law owes to it those subtleties on the
subject of Possession which have done so much
to discredit it, while English law, after the actions
which it appropriated to the recovery of real


property had fallen into the most hopeless con-
fusion, got rid at last of the whole tangled mass
by a heroic remedy. No one can doubt that the
virtual abolition of the English real actions which
took place nearly thirty years since was a public
benefit, but still persons sensitive to the harmonies
of jurisprudence will lament that, instead of
cleansing, improving, and simplifying the true
proprietary actions, we sacrificed them all to
the possessory action of ejectment, thus basing
our whole system of land recovery upon a legal

Legal tribunals have also powerfully assisted
to shape and modify conceptions of proprietary
right by means of the distinction between Law
and Equity, which always makes its first appear-
ance as a distinction between jurisdictions. Equit-
able property in England is simply property held
under the jurisdiction of the Court of Chancery.
At Rome, the Praetor's Edict introduced its novel
principles in the guise of a promise that under
certain circumstances a particular action or a
particular plea would be granted ; and, accord-
ingly, the property in bonis, or Equitable Pro-
perty, of Roman Law was property exclusively
protected by remedies which had their source
in the Edict. The mechanism by which equitable
rights were saved from being overridden by the
claims of the legal owner was somewhat different
in the two systems. With us their independence
is secured by the Injunction of the Court of
Cliancery. Since, however, Law and Equity,
while not as yet consolidated, were administered
under the Roman system by the same Court,


nothing like the Injunction was required, and
the Magistrate took the simpler course of refusing
to grant to the Civil Law Owner those actions
and pleas by which alone he could obtain the
property that belonged in equity to another.
But the practical operation of both systems was
nearly the same. Both, by means of a distinction
in procedure, were able to preserve new forms
of property in a sort of provisional existence,
until the time should come when they were
recognised by the whole law. In this way, the
Roman Praetor gave an immediate right of property
to the person who had acquired a Res Mancipi
by mere delivery, without waiting for the ripening
of Usucapion. Similarly he in time recognised
an ownership in the Mortgagee, who had at first
been a mere " bailee " or depositary, and in the
Emphyteuta, or tenant of land which was subject
to a fixed perpetual rent. Following a parallel
line of progress, the English Court of Chancery
created a special proprietorship for the Mortgagor,
for the Cestui que Trust, for the Married Woman
who had the advantage of a particular kind of
settlement, and for the Purchaser who had not
yet acquired a complete legal ownership. All
these are examples in which forms of proprietary
right, distinctly new, were recognised and pre-
served. But indirectly Property has been affected
in a thousand ways by equity, both in England
and at Rome. Into whatever corner of juris-
prudence its authors pushed the powerful instru-
ment iii their command, they were sure to meet,
and touch, and more or less materially modify the
law of property. When in the preceding pages


I have spoken of certain ancient legal distinctions
and expedients as having powerfully affected the
history of ownership, I must be understood to
mean that the greatest part of their influence has
arisen from the hints and suggestions of improve-
ment infused by them into the mental atmosphere
which was breathed by the fabricators of equitable

But to describe the influence of Equity on
Ownership would be to write its history down
to our own days. I have alluded to it principally
because several esteemed contemporary writers
have thought that in the Roman severance of
Equitable from Legal property we have the clue
to that difference in the conception of Ownership,
which apparently distinguishes the law of the
middle ages from the law of the Roman Empire.
The leading characteristic of the feudal conception
is its recognition of a double proprietorship, the
superior ownership of the lord of the fief co-
existing with the inferior property or estate of the
tenant. Now, this duplication of proprietary right
looks, it is urged, extremely like a generalised form
of the Roman distribution of rights over property
into Quiritarian or legal, and (to use a word of
late origin) Bonitarian or equitable. Gaius himself
observes upon the splitting of dominion into two
parts as a singularity of Roman law, and expressly
contrasts it with the entire or allodial ownership
to, which other nations were accustomed. Jus-
tinian, it is true, reconsolidated dominion into
one, but then it was the partially reformed system
of the Western Empire, and not Justinian's
jurisprudence, with which the barbarians were


in contact during so many centuries. While they
remained poised on the edge of the Empire, it
may well be that they learned this distinction,
which afterwards bore remarkable fruit. In
favour of this theory, it must at all events be
admitted that the element of Roman law in the
various bodies of barbarian custom has been very
imperfectly examined. The erroneous or in-
sufficient theories which have served to explain
Feudalism resemble each other in their tendency
to draw off attention from this particular ingre-
dient in its texture. The older investigators,
who have been mostly followed in this country,
attached an exclusive importance to the circum-
stances of the turbulent period during which the
Feudal system grew to maturity; and in later
times a new source of error has been added to
those already existing, in that pride of nationality
which has led German writers to exaggerate the
completeness of the social fabric which their
forefathers had built up before their appearance
in the Roman world. One or two English inquirers
who looked in the right quarter for the foundations
of the feudal system, failed nevertheless to conduct
their investigations to any satisfactory result,
either from searching too exclusively for analogies
in the compilations of Justinian, or from confining
their attention to the compendia of Roman law
which are found appended to some of the extant
barbarian codes. But, if Roman jurisprudence
had any influence on the barbarous societies,
it had probably produced the greatest part of
its effects before the legislation of Justinian, and
before the preparation of these compendia. It


was not the reformed and purified jurisprudence
of Justinian, but the undigested system which
prevailed in the Western Empire, and which the
Eastern Corpus Juris never succeeded in dis-
placing, that I conceive to have clothed with flesh
and muscle the scanty skeleton of barbarous
usage. The change must be supposed to have
taken place before the Germanic tribes had dis-
tinctly appropriated, as conquerors, any portion
of the Roman dominions, and therefore long before
Germanic monarchs had ordered breviaries of
Roman law to be drawn up for the use of their
Roman subjects. The necessity for some such
hypothesis will be felt by everybody who can
appreciate the difference between archaic and
developed law. Rude as are the Leges Barbarorum
which remain to us, they are not rude enough
to satisfy the theory of their purely barbarous
origin ; nor have we any reason for believing
that we have received, in written records, more
than a fraction of the fixed rules which were
practised among themselves by the members of
the conquering tribes. If we can once persuade
ourselves that a considerable element of debased
Roman law already existed in the barbarian
systems, we shall have done something to remove
a grave difficulty. The German Law of the
conquerors and the Roman law of their subjects
would not have combined if they had notpossessed
more affinity for each other than refined juris-
prudence has usually for the customs of savages.
It is extremely likely that the codes of the bar-
barians, archaic as they seem, are only a compound
of true primitive usage with half-understood
Roman rules, and that it was the foreign ingre-
dient which enabled them to coalesce with a
Roman jurisprudence that had already receded
somewhat from the comparative finish which it
had acquired under the Western Emperors.

But, though all this must be allowed, there are
several considerations which render it unlikely
that the feudal form of ownership was directly
suggested by the Roman duplication of domainial
rights. The distinction between legal and equit-
able property strikes one as a subtlety little likely
to be appreciated by barbarians ; and, moreover,
it can scarcely be understood unless Courts of Law
are contemplated in regular operation. But the
strongest reason against this theory is the existence
in Roman law of a form of property a creation
of Equity, it is true which supplies a much
simpler explanation of the transition from one set
of ideas to the other. This is the Emphyteusis,
upon which the Fief of the middle ages has often
been fathered, though without much knowledge
of the exact share which it had in bringing feudal
ownership into the world. The truth is that the
Emphyteusis, not probably as yet known by its
Greek designation, marks one stage in a current
of ideas which led ultimately to feudalism. The
first mention in Roman history of estates larger
than could be farmed by a Paterfamilias, with his
household of sons and slaves, occurs when we come
to the holdings of the Roman patricians. These
great proprietors appear to have had no idea of
any system of farming by free tenants. Their
latifundia seem to have been universally cultivated
by slave-gangs, under bailiffs who were themselves
slaves or freedmen ; and the only organisation
attempted appears to have consisted in dividing
the inferior slaves into small bodies, and making
them the peculium of the better and trustier sort,
who thus acquired a kind of interest in the effi-
ciency of their labour. This system was, however,
especially disadvantageous to one class of estated
proprietors, the Municipalities. Functionaries in
Italy were changed with the rapidity which often
surprises us in the administration of Rome herself ;
so that the superintendence of a large landed
domain by an Italian corporation must have been
excessively imperfect. Accordingly, we are told
that with the municipalities began the practice of
letting out agri vectigales, that is, of leasing land
for a perpetuity to a free tenant, at a fixed rent,
and under certain conditions. The plan was
afterwards extensively imitated by individual
proprietors, and the tenant, whose relation to
the owner had originally been determined by his
contract, was subsequently recognised by the
Praetor as having himself a qualified proprietorship,
which in time became known as an Emphyteusis.
From this point the history of tenure parts into
two branches. In the course of that long period
during which our records of the Roman Empire
are most incomplete, the slave-gangs of the great
Roman families became transformed into the
coloni, whose origin and situation constitute one
of the obscurest questions in all history. We may
suspect that they were formed partly by the
elevation of the slaves, and partly by the degrada-
tion of the free farmers ; and that they prove
the richer classes of the Roman Empire to have
become aware of the increased value which
landed property obtains when the cultivator has
an interest in the produce 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 in rendering to him a fixed portion of
the annual crop. We know further that they
survived all the mutations of society in the ancient
and modern worlds. Though included in the
lower courses of the feudal structure, they con-
tinued in many countries to render to the landlord
precisely the same dues which they had paid to
the Roman dominus, and from a particular class
among them, the coloni medietarii, who reserved
half the produce for the owner, are descended
the metayer tenantry, who still conduct the
cultivation of the soil in almost all the South of
Europe. On the other hand, the Emphyteusis,
if we may so interpret the allusions to it in the
Corpus Juris, became a favourite and beneficial
modification of property ; and it may be conjec-
tured that wherever free farmers existed, it was
this tenure which regulated their interest in the
land. The Praetor, as has been said, treated the
Emphyteuta as a true proprietor. When ejected,
he was allowed to reinstate himself by a Real
Action, the distinctive badge of proprietary right,
and he was protected from disturbance by the
author of his lease so long as the canon, or quit-rent,
was punctually paid. But at the same time it
must not be supposed that the ownership of the
author of the lease was either extinct or dormant.
It was kept alive by a power of re-entry on non-
payment 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 Emphy-
teusis a striking example of the double ownership
which characterised feudal property, and one,
moreover, which is much simpler and much more
easily imitated than the juxtaposition of legal
and equitable rights. The history of the Roman
tenure does not end, however, at this point. We
have clear evidence that between the great
fortresses which, disposed along the line of the
Rhine and Danube, long secured the frontier of
the Empire against its barbarian neighbours,
there extended a succession of strips of land, the
agri limitrophiy which were occupied by veteran
soldiers of the Roman army on the terms of an
Emphyteusis. There was a double ownership.
The Roman State was landlord of the soil, but
the soldiers cultivated it without disturbance so
long as they held themselves ready to be called
out for military service whenever the state of
the border should require it. In fact, a sort of
garrison-duty, under a system closely resembling
that of the military colonies on the Austro-Turkish
border, had taken the place of the quit-rent
which was the service of the ordinary Emphyteuta.
It seems impossible to doubt that this was the
precedent copied by the barbarian monarchs who
founded feudalism. It had been within their
view for some hundred years, and many of the
veterans who guarded the border were, it is to be
remembered, themselves of barbarian extraction,
who probably spoke the Germanic tongues. Not
only does the proximity of so easily followed a
model explain whence the Prankish and Lombard
Sovereigns got the idea of securing the military
service of their followers by granting away
portions of their public domain ; but it perhaps
explains the tendency which immediately showed
itself in the Benefices to become hereditary, for
an Emphyteusis, though capable of being moulded
to the terms of the original contract, nevertheless
descended as a general rule to the heirs of the
grantee. It is true that the holder of a benefice,
and more recently the lord of one of those fiefs
into which the benefices were transformed, appears
to have owed certain services which were not
likely to have been rendered by the military
colonist, and were certainly not rendered by the
Emphyteuta. The duty of respect and gratitude
to the feudal superior, the obligation to assist
in endowing his daughter and equipping his son,
the liability to his guardianship in minority, and
many other similar incidents of tenure, must
have been literally borrowed from the relations
of Patron and Freedman under Roman law,
that is, of quondam-master and quondam-slave.
But then it is known that the earliest beneficiaries
were the personal companions of the sovereign,
and it is indisputable that this position, brilliant
as it seems, was at first attended by some shade
of servile debasement. The person who minis-
tered to the Sovereign in his Court had given
up something of that absolute personal freedom
which was the proudest privilege of the allodial

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