LAND-TENURE
LAND-TENURE
a necessary and obvious loosening of the bonds of
society, and of an absence of such military organiza-
tion as Gaul still preserved, the Roman province of
Britain is, at the close of the eighth century, on('e
more a portion of the Roman world. We cannot
judge from its then social constitution what former
tribal influences may have contributed to the mould-
ing of the State.
Yet another source for the transformation in land- tenure which Roman society suffered has been sug- gested. Some have thought that two institutions present in the Roman Empire in the time of its vigour — the one military and early discovered especially in the West, the other civil and developed later in the East under Byzantine law — were the origins of feu- dalism.
The first of these was the mihtary tenure granted by the Crown to veterans upon the frontiers on con- dition of military service to be rendered when called for. This case of tenure was exceptional so far as the number of individuals was concerned, but had a wide extension upon the long frontiers of the Empire. It bears a strong resemblance, indeed, to one character- istic of later feudalism, to wit, the connexion between tenure and military service. But it is quite impossi- ble to establish a link between this exceptional, artifi- cial, and occasional system and that whole state of mind which produced (as we shall see later) the feudal system. There is no trace of the one growing out of the other: one does not find an inherited tenure which began under this Roman military experiment and ended as a true feudal estate. The resemblance be- tween the two is mechanical rather than organic, and the analogy is verbal. On examination we find that there is no affiliation between the spirit of the one and the spirit of the other.
The second institution was the tenure called em- phyteusis, under which land, the domain of the Crown (and other land as well, but especially land under the domain of the Crown), was granted, not on absolute ownership, but in tenancy for certain fixed dues, and once so granted was granted permanently. Tliis system does indeed nearly resemble in form the hene- ficium, which overlapped with it, but grew later and flourished more vigorously in the West. It lacks, however, the prime character of the beneficium, to wit, the moral bond between the grantor and the grantee, the concept ion of a personal favour done by the grantor who expects from the grantee personal loyaltj'. Now this moral factor was the life of the feudal growth, and though the forms of the grant in the West were un- doubtedly influenced by the strict law of the Empire, tiiere is no organic relation discoverable in history between one and the other. A more direct, a more reasonable, and a more demonstrable process pro- duced out of the material of Roman societj-, and from within its own tradition, the structure of tenure later known as feudalism. For, while various forms of settled tenure which had for their characteristic the holding of land from another, in contradistinction to the fundamental and indestructible idea of ownership, were thus arising in the settled civilization still sul> ject to centralized Roman government and chiefly residing in the eastern portion of Christendom, in the western portion the ideas of the time were expressing themselves in another fashion.
The conception of tenure, or holding of another permanently, as distinguished from ownersliip (an idea as fundamental and as indestructible in the West as in the East), was developing in Gaul through the merging of two quite distinct currents of custom. To comprehend these two currents the reader must first postulate as the basis of all Roman society at the close of the Roman Empire a number of great estates vary- ing in size from many hundreds to many thousands of acres, each in the absolute possession of an owner who tLled his land with slave labour. These estates were
the units of society ; they were the parishes into which
ecclesiastical organization was divided, the vilUe into
which agricultural industry was divided. One family
might possess man\'; no wealthy or important family
possessed less than one. It is their grou|)ing which we
shall see building up the feudal system; it is their
owners whose descendants become the nobility of
Europe in the Middle Ages, their chaplains who be-
come the parish priests, their slaves who become the
peasantry. This conception once seized, we can
understand the nature of the two currents whose
fusion resulted in the full production of feudalism,
a process we are now about to examine. The two
streams were as follows: —
( 1 ) The great landowners whom the Roman Empire, while it was still governed strictly from one centre, had left absolute proprietors of their estates, Iwgan to arrange themselves in a hierarchy of greater and lesser men: the lesser related to the greater by an under- standing which later became a contract, and which carried with it a conception of dependence.
(2) The great officers of state being identical in so many cases with the owners of large landed estates, the two ideas of office and of ownership associated themselves in men's minds, and, while political power became hereditarj' as the descent of land was heredi- tar}-, it became natural, conversely, to think of ownership, however fLxed and continuous, as some- thing held from above, since political power, which was at last inseparably associated with ownership, must of its nature be held from the supreme au- thority of the State.
We will examine each of these developments sepa- rately. Even before the fall of the Empire and the establislmient of local generals of armies (some Bar- barian, some Roman, and all, .soon, a mixture of the two), the tendency of the smaller man to put himself under the protection of the greater man had appeared. It was the decay in public authority which produced this tendency. Property was the prime institution that survived, it had a sanction in the popular mind which survived the power of punishment vested in the laws and police of the Roman State. A man was powerful in proportion to the number of estates he owned in a district; he could exercise that power in a number of ways; he could see to it that religious en- dowments should go to the person or persons he wished; he could found monasteries; he could in- fluence by the weight of his presence the course of justice; he could advance money where money stood between an individual and punishment; he could be responsible for taxes. The more estates a man owned in a particular district, the more — as public authority declined, and sense of the sanctity of property re- mained—did such a man tend to become the real head of the district, in contradistinction to the weakening authority of political machinery. Again, the anar- chic character which war was taking on — the irre- sponsible raids of small but fierce groups of Barba- rians^created dangers against which a man best secured himself by establishing a close set of mutual duties between himself and some wealthier man of the neighbourhood. The tendency was opposed to Ro- man tradition, and, since it worked outside the frame- work of Roman law, was obviously inimical to the im- perial conception; but that conception weakened from generation to generation, and as early as the fifth centurj- one finds this sort of "recommendation" an established custom vigorous and vital, which the dead framework of the imperial law cannot break. When the chieftains of the small invading tribes, principally German, and the generals of armies had seized upon the machinery of government, had be- come the masters of the tax-collecting authorities, resided in the Roman palace of the capital cities, and came to be called local " kings", all attempt to check this natural tendencv ceased.
