第85章

Now this duplication of proprietary rightlooks, it is urged,extremely like a generalised form of the Roman distribution ofrights over property into Quiritarian or legal, and (to use aword of late origin) Bonitarian or equitable. Gaius himselfobserves upon the splitting of dominion into two parts as asingularity of Roman law, and expressly contrasts it with theentire or allodial ownership to which other nations wereaccustomed. Justinian, it is true, re-consolidated dominion intoone, but then it was the partially reformed system of the WesternEmpire, and not Justinian's jurisprudence, with which thebarbarians were in contact during so many centuries. While theyremained poised on the edge of the Empire, it may well be thatthey learned this distinction, which afterwards bore remarkablefruit. In favour of this theory, it must at all events beadmitted that the element of Roman law in the various bodies ofbarbarian custom has been very imperfectly examined. Theerroneous or insufficient theories which have served to explainFeudalism resemble each other in their tendency to draw offattention from this particular ingredient in its texture. Theolder investigators, who have been mostly followed in thiscountry, attached an exclusive importance to the circumstances ofthe turbulent period during which the Feudal system grew tomaturity; and in later times a new source of error has been addedto those already existing, in that pride of nationality which hasled German writers to exaggerate the completeness of the socialfabric which their forefathers had built up before theirappearance in the Roman world. One or two English inquirers wholooked in the right quarter for the foundations of the feudalsystem, failed nevertheless to conduct their investigations toany satisfactory result, either from searching too exclusivelyfor analogies in the compilations of Justinian, or from confiningtheir attention to the compendia of Roman law which are foundappended to some of the extant barbarian codes. But, if Romanjurisprudence had any influence on the barbarous societies, ithad probably produced the greatest part of its effects before thelegislation of Justinian, and before the preparation of thesecompendia. It was not the reformed and purified jurisprudence ofJustinian, but the undigested system which prevailed in theWestern Empire, and which the Eastern Corpus Juris neversucceeded in displacing, that I conceive to have clothed withflesh and muscle the scanty skeleton of barbarous usage. Thechange must be supposed to have taken place before the Germanictribes had distinctly appropriated, as conqueror, any portion ofthe Roman dominions, and therefore long before Germanic monarchshad ordered breviaries of Roman law to be drawn up for the use oftheir Roman subjects. The necessity for some such hypothesis willbe felt by everybody who can appreciate the difference betweenarchaic and developed law. Rude as are the Leges Barbarorum whichremain to us, they are not rude enough to satisfy the theory oftheir purely barbarous origin; nor have we any reason forbelieving that we have received, in written records, more than afraction of the fixed rules which were practised among themselvesby the members of the conquering tribes. If we can once persuadeourselves that a considerable element of debased Roman lawalready existed in the barbarian systems, we shall have donesomething to remove a grave difficulty. The German law of theconquerors and the Roman law of their subjects would not havecombined if they had not possessed more affinity for each otherthan refined jurisprudence has usually for the customs ofsavages. It is extremely likely that the codes of the barbarians,archaic as they seem, are only a compound of true primitive usagewith half-understood Roman rules, and that it was the foreigningredient which enabled them to coalesce with a Romanjurisprudence that had already receded somewhat from thecomparative finish which it had acquired under the WesternEmperors.

But, though all this must be allowed, there are severalconsiderations which render it unlikely that the feudal form ofownership was directly suggested by the Roman duplication ofdomainial rights. The distinction between legal and equitableproperty strikes one as a subtlety little likely to beappreciated by barbarians; and, moreover, it can scarcely beunderstood unless Courts of Law are contemplated in regularoperation. But the strongest reason against this theory is theexistence in Roman Law of a form of property -- a creation ofEquity, it is true -- which supplies a much simpler explanationof the transition from one set of ideas to the other. This is theEmphyteusis, upon which the Fief of the middle ages has oftenbeen fathered, though without much knowledge of the exact sharewhich it had in bringing feudal ownership into the world. Thetruth is that the Emphyteusis, not probably as yet known by itsGreek designation, marks one stage in a current of ideas whichled ultimately to feudalism. The first mention in Roman historyof estates larger than could be farmed by a Paterfamilias, withhis household of sons and slaves, occurs when we come to theholdings of the Roman patricians. These great proprietors appearto have had no idea of any system of farming by free tenants.

Their latifundia seem to have been universally cultivated byslave-gangs, under bailiffs who were themselves slaves orfreedmen; and the only organisation attempted appears to haveconsisted in dividing the inferior slaves into small bodies, andmaking them the peculium of the better and trustier sort, whothus acquired a kind of interest in the efficiency of theirlabour. This system was, however, especially disadvantageous toone class of estated proprietors, the Municipalities.