THE CHRISTIAN ROMAN EMPIRE AND THE FOUNDATION OF THE TEUTONIC KINGDOMS
CHAPTER XIX
SOCIAL AND ECONOMIC CONDITIONS
THE ancients saw in the stupendous destiny of the Roman State the clue
to the history of the Universe and a revelation of the plans of Providence in
regard to the world. “Italy” wrote Pliny the elder in the time of Vespasian, “has
been selected by Deity in order to collect dispersed power, to soften customs,
and to unite by the communion of one language the various and barbarous dialects
of so many nations, to bestow on men the intercourse of ideas and humanity, in
a word—that all the races of the world should have one fatherland”. For
Christians the conquest of the world by Rome had even a deeper meaning.— “Jesus
was born in the reign of Augustus, who as it were associated in one monarchy
the immense multitude of men dispersed about the earth, because a plurality of
kingdoms would have been an obstacle to the diffusion of Christ's doctrine
through the whole world”. But Augustus was a heathen and his successors
persecuted Christianity, so that the Roman Empire served the Gospel for a long
while unconsciously and in spite of its desires. This conception of universal
history made a further stride when Constantine the Great proclaimed
Christianity the religion of the State. In ancient times" says Eusebius of Caesarea, “the world was divided
according to countries and nations into a multitude of commonwealths,
tyrannies, principalities. Hence constant wars and the devastations and depredations
following thereon ... The origin of these divisions may certainly be ascribed
to the diversity of the gods worshipped by men. But when the instrument of
salvation, the most holy body of Christ ... was raised ... against the demons,
forthwith the cause of demons has vanished and states, principalities,
tyrannies, commonwealths have passed away ... One God has been announced to the
whole of mankind, one empire obtained sway over all men — the Roman Empire”.
But the unification of the inhabited world which forms the meaning and
the greatness of the Roman Empire, is a process presenting two different sides
to the observer. Celts, Iberians, Rhaetians, Moors,
Illyrians, Thracians were to some extent civilized by the culture of Greece and
Rome, and achieved by its help a great advance in economic and civic organization
as well as in education; Syrians, Egyptians, the inhabitants of Asia Minor only
modified to a certain extent their manners and views in order to meet the
requirements of the Empire. But if the intermixture of tribes and their
permeation by Graeco-Roman culture was in one sense a
great progress, it was at the same time, but from another point of view, a
decline; it was accompanied by a lowering of the level of the culture which
exerted the civilizing influence. While conquering barbarism and native
peculiarities, Graeco-Roman culture assumed various
traits from its vanquished opponents, and became gross and vulgar in its turn.
In the words of a biographer of Alexander Severus: good and bad were
promiscuously thrust into the Empire, noble and base, and numbers of
barbarians.
The unification and transformation of tribes standing on low grades of
civilization leads to consequences characterized by one common feature, the
simplification of aims—degeneration. This process is concealed for a while by
the political and economic advantages following on the establishment of the
Empire. The creation of a central authority, upholding peace and intercourse (Pax Romana), the
conjunction of the different parts of the world into one economic system
enlivened by free trade, the spread of citizenship and civil culture in wider and
wider circles of population—all these benefits produced for a time a rise of
prosperity which counterbalanced the excess of barbarous, imperfectly
assimilated elements.
But a series of political misfortunes set in rather rapidly in the third
century: invasions of barbarians, conflicts between rival candidates to the
throne, competition between armies and provinces put an end to order and
prosperity and threatened the very existence of the Empire. In these calamities
the barbarization of Roman culture became more and more manifest, a backward
movement began in all directions, a backward movement, however, which was by no
means a mere falling back into previous conditions, but gave rise to new and
interesting departures.
Romance
Languages
It suffices to glance at the names of the Roman citizens of the Empire
in order to notice that we are in very mixed company. Instead of the nomina and cognomina of earlier days we find strange
barbaric appellations hardly whitewashed by the adjunction of es or er at the end. A
T. Tammonius Saeni Tammoni filius Vitalis, and a Blescius Diovicus do not look very pure ‘Quirites’.
Such barbarians had first of all to learn Latin as the common tongue of the
Western Empire, and they did learn to use Latin. But what Latin! As St Jerome
has it: “Latin language gets transformed according to countries and to epochs”.
Common speech, the lingua vulgaris, with a former Celt, Iberian, or Rhaetian became gradually a new Romance language, the
sounds and forms of which were deflected from the original Latin in consequence
of the physiological and intellectual peculiarities of Celts, Iberians, Rhaetians.
We may be allowed to give a few instances of this curious process of
transformation from the well-known history of French phonetics and grammar. The
Latin u was kept up in Italian but
softened into the French u (ü), e.g. durus—duro—dur,
and we cannot wonder at that, because the population of Gaul when yet speaking Celtic
sounded u as ü and not somewhat like the English oo in
‘poor’. The French ‘liaison’, the
habit of sounding the otherwise mute consonant at the end of a word before a
vowel in order to avoid a ‘hiatus’, may be traced to the Celtic habit of
joining separate words into compounds. In Celtic dialects the accent makes one
or the other syllable so prominent that other syllables become indistinct and
may get slurred over. This stress put on the accentuated syllable has called
forth in French a characteristic deterioration of unaccentuated parts of words. Sometimes whole groups of sounds disappear, as in ‘Août’ (Augustus), sometimes they are represented only by a
mute e as in ‘vie’ (vita). The French
habit of marking the last syllable by an accent even in the pronunciation of
Latin goes back ultimately to this trait. In reading the Latin text of the
Salic Law we are struck by the complete dislocation of the system of
declensions—the ablative case is constantly used instead of the accusative, the
accusative instead of the nominative, etc. But this degeneration was prepared
by the practice of vulgar Latin even in the first and second centuries when the
genitive case disappeared. The dative followed suit somewhat later.
It is not however to be supposed that Latin was imposed even in its
vulgarized forms on the entire population of the Empire. It is needless to
remind the reader of the fact that in the whole eastern half Greek was the
language of the educated classes. But both in the East and in the West there
were many backward regions in which vernacular speech held its own stubbornly
against Greek and Latin. The Copts, Arabs, Syrians, Armenians never gave up
their native languages, and the oriental undercurrents continued to play an
important part in the social life of Asia and Egypt. There are many vestiges of
a similar persistency of barbarian custom and speech in the West. Roman law
admitted expressly that valid deeds could be executed in Punic and, judging from
the story about a sister of Septimius Severus, Punic must have been very
prevalent among well-to-do families of knightly rank in Africa: when the lady
in question came to visit her brother in Rome, the Emperor had often to blush
on account of her imperfect knowledge of Latin. The letters and sermons of St
Augustine show that this state of things had by no means disappeared in
Romanized Africa in the fifth century: the great African bishop repeatedly
urged the necessity for dignitaries of the Church to be acquainted with Punic,
and he had recourse himself to illustrations drawn from this language. In Spain
and Gascony one living remnant of pre-Roman civilization has survived to our
days in the ‘Es-c-aldunac’ speech of the Basques, the
offspring of the Iberian race, while Brittany exhibits another block of
pre-Roman custom in the speech and manners of its Breton population. St Jerome
testifies to the fact that in the neighborhood of Treves, one of the mightiest centers
of Roman civilization, a Celtic dialect was spoken by the peasants in the
fourth century, so that a person reared there possessed a clue to the speech of
the Galatians, the Celtic tribe of Asia Minor. In the Latinized north-west of
the Balkan peninsula the vernacular Illyrian was never driven out or destroyed,
and the present speech of the Albanians is directly derived from it in spite of
a sprinkling of Latin words and expressions. In the west of England Celtic
speech and custom runs on uninterruptedly through the ages of Roman, Saxon, and
Norman conquest. Not to speak of Welsh, which has borrowed many Latin words,
especially technical terms, but remains a purely Celtic language, Cornish was
spoken in Cornwall up to the eighteenth century, while in Cumberland and
Westmorland the custom of shepherds to count their sheep in Celtic numerals was
the last vestige of the separate existence of a ‘Welsh’ population.
National
Survivals and Revivals
These traces of stubborn national life forming a kind of barbarian
subsoil to Roman culture are important in many ways: they help us not only to
understand the history of dialects and of folklore, but they account for a good
many spontaneous outbursts of barbarism in the seemingly pacified and Romanized
provinces of the Empire at a time when the iron hand of the rulers began to
relax its grip over the conquered populations. Berber, Punic, Iberian,
Illyrian, and Celtic tribes come forward again in the calamitous years of the
fourth and fifth centuries. Usurpers, riotous soldiers, and brigands gather
strength from national aspirations, and in the end the disruption of the Empire
becomes inevitable on account of internal strife as well as of foreign
invasions. Nowhere perhaps has this subliminal life of the province to account
for so much as in England, where the arts and crafts of Rome were introduced in
the course of three centuries and a half of gradual occupation, and Latin
itself was widely spoken by the upper classes, but where nevertheless the
entire fabric of Roman rule crumbled down so rapidly during the fifth century,
and Celts were left to fight with the Teutons for the remnants of what had been
one of the fair provinces of Rome.
A transformation similar to that expressed in language is clearly
perceivable in the history of Art. Christianity introduced into the world a
powerful new factor, the strength of which may be gauged in the paintings of
the Catacombs and in the rise of new styles of architecture—the Byzantine and
the Romanesque. Thus we have to deal not with mere deterioration and decay, but
also with the lowering of the level of culture and the barbarization of art
which make themselves felt in various ways. When Rome had to raise a triumphal
arch to the conqueror of Maxentius, a great part of the reliefs for its
adornment were carried over from the Arch of Trajan, while some sculptures were
added by contemporary artists. And the latter perpetuate the decay of art and
of aesthetic taste. The figures are distorted, the faces deformed. On the
so-called discus of Theodosius the symbolical figures of the lower part were
copied from ancient originals and are handsome. The upper half was filled with
representations of living people, and it is evident that the gross, flat, ugly
faces, the heavy embroidered uniforms, were reproduced with fidelity, while the
handling of the figures strikes the observer by its clumsiness and faulty
designs. The chief thing in the pictorial and plastic arts of the third and fourth centuries is not beauty or expression, but size and
costly material. Gallienus, whose unfortunate reign was nicknamed the “period
of the thirty tyrants”, ordered a statue of himself 200 feet in height: it was
planned on such a scale that a child was able to ascend by a winding staircase
to the top of the Emperor's lance. Instead of marble, precious porphyry, a
stone exceedingly difficult to cut, was used for plastic purposes; the
contractor and polisher were more important persons than the sculptor for the
purpose of making statues of this material.
Commercial
Intercourse
It is of special importance for us to notice the gradual degeneration or
rather transformation of economic life. Towards the beginning of our era a
great circuit of industrial and commercial intercourse is formed under the
protection of the Empire: it reminds us in some ways of the world-market of the
present time. The different provinces exchanged goods and developed specialties
fitting into one whole through mutual support; the excellent roads made quick
exchanges possible, considerable capital sought employment in productive
enterprises, firm political power and mutual confidence fostered the growth of
credit. From the third century onwards the picture changes. The subjection of
conquered peoples by Roman citizens ceases and the greater part of the population
of the Empire is admitted to the rights of citizenship. This meant that masses
of people, over whom governors, publicans and contractors had exercised almost
uncontrolled sway, were enabled to come forward with their interests and legal
claims. Provincial forces began to assert themselves, and in husbandry local
needs and the requirements of small people made themselves more and more felt.
As a consequence, the wide organization of world intercourse gives way before
more direct and modest economic problems—each social group has to look out
primarily for itself in regard to food, clothing, housing, furniture. On the
other hand the supply of slaves gets more and more hampered by the fact that
wars of conquest cease. In the beginning of the third century we hear already
of a price of 200 aurei or 500 denarii of full ancient coinage for a slave—a very high price indeed, which shows
indirectly how difficult it was to get slaves. During the protracted defensive
wars which had to be fought on all the frontiers prisoners were frequently
made, but these Germans, Slavs, Huns were difficult to manage and made clumsy
laborers when settled for agricultural purposes: it was more profitable to
leave them a certain independence on their plots, and therefore to cut up large
estates into small holdings. Lastly, the rise of provincial and local interests
and the change in the condition of the laboring classes coincided with the
terrible political calamities which I have already had occasion to mention. The
dislocation of the commonwealth rendered all widely extended economic plans
insecure and contributed by itself to the tendency of each separate locality to
live its own life and to work for its own needs without much help from the
outside. As a result of the working of these different causes society falls
back from a complicated system of commercial intercourse to the simpler forms
of “natural economy”. This movement is not arrested by the restoration of the
Empire in the fourth century, but rather strengthened by it. Political power is
indeed restored, but it has to be maintained by straining every nerve in social
life, and this straining hampers free movement and free contract, fastens
everyone to a certain place and to a certain calling.
In an “Exposition of the whole world and of nations” translated from
Greek in the time of Constantius (soon after 345) much attention is still paid
to the economic intercourse between the different parts of the Empire. Greece
itself is said to be unable to satisfy its own needs, but in regard to many of
the other provinces it is expressly noted that they are sufficient unto
themselves. Besides, most of them produce goods which are exported to other
places. Ascalon and Gaza, for example, are said to
provide excellent wine for Syria and Egypt; Scythopolis,
Laodicea (in Syria), Byblus, Tyre, Berytus send out linen wares all round the world, while
Caesarea, Tyre, Sarepta and Neapolis are famous in
the same way for their purple-dyed tissues. Egypt supplies Constantinople and
the Eastern provinces with corn and has a monopoly in the production of
papyrus. From Cappadocia furs are obtained, from Galatia different kinds of
clothing. Laodicea in Phrygia has given a name to garments of a special kind.
Asia and the Hellespont produce corn, wine, and oil; in Macedonia and Dalmatia,
iron and lead mines are noted; in Dardana (Elyria)
pastoral pursuits are prevalent and bacon and cheese are sent to market, while
Epirus is distinguished by its large fishing trade. The Western provinces are
not described in such a minute way but fine Italian wines are mentioned, the
trade of Arles for imports into Gaul is noted, and Spain is extolled on account
of its oil, cloth, bacon and mules. Oil is also said to be largely supplied by
the African province, while clothing and cattle come from Numidia. Pannonia and
Mauretania are the only provinces mentioned as carrying on the slave trade.
Diocletian’s
Edict as to Prices
Some forty-five years before this commercial geography of the Empire was
drawn up, another curious document shows the imperial authorities engaged in a
wearisome struggle in order to protect easy intercourse and to ward off the
rise of prices—I mean the famous edict of Diocletian and of his companion
emperors establishing maximum prices in the Empire. Such measures are not taken
without cogent reasons, and, indeed, we are told that prices had risen
enormously, although it is hardly probable that the reason of the dearth had to
be sought in the iniquities of the rulers. The enactment itself dilates on the evil greed of avaricious producers
and venders, and declares in the name of the "fathers of human kind"
that justice has to arbitrate and to intervene. The Emperors are especially
incensed at the hard bargains which are extorted from soldiers quartered in the
provinces or moving along the roads: prices are screwed up on such occasions
not to four or eight times the ordinary value, but to an extent that could not
be expressed in words. If such things happen in times of abundance what is to
be expected from seasons when actual want is experienced? Without attempting to
fix normal prices the Emperors threaten with capital punishment merchants
engaged in supplying the different provinces with wares: Lactantius reports
that blood flowed and that the impossibility of enforcing cheapness by the
hands of executioners was only recognised after fruitless attempts to terrorize
tradesmen into submission.
Let us look, however, at some of the details of the edict, fragments of
which have been preserved in several copies in the Balkan peninsula, Asia
Minor, and Egypt, viz., in the provinces under the direct sway of Diocletian.
Traces of commercial intercourse of the same kind as that described in
the Expositio frequently meet the eye. We hear again of the high class wines of Italy, of
linen vestments from Laodicea, Scythopolis, Byblus, of purple-dyed garments manufactured on the Syrian
coast and fetching very high prices, and of somewhat less expensive kinds from
Miletus: a piece of purple linen for ornamental stripes (clavi) weighing six ounces may be
sold for 13,000, 23,000 and even 32,000 denarii,
50,000 of the latter corresponding to one pound of gold. Cloth garments came
from Laodicea in Phrygia, from Modena in Italy and in the shape of coarse, warm mantles from Flanders. In a word the lines of
commercial intercourse are clearly traced, but the difficulties encountered by
trade under new conditions are also very visible. Some comparisons with extant
valuations of goods ordered for soldiers enable us to form a judgment as to the
fluctuations of prices which Diocletian's enactment tried to moderate. We hear,
e.g., that in one case 80 pounds of bacon were estimated at 1 solidus (6000 copper denarii) and in another instance 20 pounds at 1000 denarii. According to the tariff of Diocletian the maximum
price for bacon of the best kind, would have been in the first instance 96,000,
and in the second 16,000 copper denarii, the latter
being about 16 times more than the ordinary price.
It is important to notice that while the ordinary agricultural laborer
is not allowed to receive higher wages than 25 silver denarii (about 120 copper denarii) per day besides board, the
maximum price of a double sextarius (roughly, about a
quart) of wheat was fixed at 100 silver denarii, and
that of a pound of pork at 12 silver denarii.
One cannot wonder at the failure of Diocletian's attempt, which
according to contemporary testimony only increased the evils it was meant to
suppress, the penalties against the merchants leading to concealment of goods
and interruptions of trade. But it is characteristic of the methods of
compulsory legislation constantly employed by the emperors of the fourth
century that Julian made a similar and quite as unsuccessful attempt to coerce
the citizens of Antioch into fair trade.
It is impossible to suppose that such measures were dictated by a kind
of "Caesar madness," prompting the rulers of the civilized world to
affirm their will and wisdom as against economic laws. However faulty in its
conception, the policy indicated by the edicts of Diocletian and Julian had its
roots in a well-meaning though ineffectual desire to regulate trade and to
protect fair intercourse. It may be likened, as most attempts to impose maximum
limits to prices, to the police supervision of trade in necessaries of life
practiced in besieged cities. The emperors and their bureaucracy had come to
look on the whole civilized world subject to their authority as upon a besieged
city, in which all civil professions had to conform to military rule.
Corporations
The same kind of evolution from free intercourse to compulsion may be
observed in the legislation on commercial and industrial corporations. Roman
law passed through several stages in this respect. At the time of the Republic
guilds of artisans and merchants could be formed by private agreement if their
statutes and activity did not infringe the laws of the State. During the civil
conflicts of the last years of the Republic and in the early Empire organized
corporations were several times dissolved and forbidden on account of the
political agitation carried on by their members, and from Augustus' time
concession by the Senate and confirmation by the Prince had to be applied for
when a new college or guild had to be formed. But police supervision by the
State did not alter the main feature of the corporations, namely their
spontaneous origin in the needs of society and the wish of private persons to
carry on profitable trade and to form unions for mutual support and social
intercourse. The imperial Government was often inclined to repress these
spontaneous tendencies, as we may gather, e.g., from Trajan's correspondence
with Pliny.
The first indication of a further change in the relations between
government and corporations may be noticed in the reign of Alexander Severus.
This Emperor, instead of restricting the rise of trade guilds, actually favored
the formation of corporations of wine merchants, grocers, shoemakers, and other
crafts. We may suspect that at this time, that is in the second quarter of the
third century, the Government began to perceive a slackening in the energy of
trade and commerce and chose to exert its authority in patronizing trade
guilds. The restoration of imperial power under Aurelian brought about another
and more powerful attempt in the same direction. One of the measures of this
Emperor was the assumption of a wide-reaching guardianship over the
alimentation of Rome. The supply of corn from Egypt was increased; lists of
paupers (proletarii)
entitled to be fed by the State were drawn up, and the privilege of living at
the cost of the commonwealth was made hereditary ; instead of corn, bread was
distributed, and along with bread — oil, salt, and pork. In connection with
this system of alimentation of the poorer classes in Rome Aurelian reorganized
the service of the merchants responsible for the transport of corn on the Nile
and on the Tiber. This throws light on the immediate reason for the
transformation of corporations in the ensuing age: trades and crafts which had
a bearing on vital needs of social intercourse were taken under the tutelage of
the Empire and carried on henceforth, not as free professions but as compulsory
services.
This is clearly seen in the legislation of Constantine and remains
characteristic of the legal treatment of trade during the whole of the fourth
and of the fifth century.
In the Lex Julia of 747 UC (Roman Era )enacted by Augustus the principle was already
formulated that a combination of individual workmen or traders into a college
had to be warranted not only by their wishes and interests but by public
utility. The public element assumes now a preponderating influence. Bakers are
authorized to form a craft guild not because they see an advantage in being
organized in this way, but because the State wants their services in regulating
the trade in bread and providing for the needs of the inhabitants of cities.
The result of this enlisting of trades and crafts into public service is a
system entirely at variance with our conceptions of supply and demand, and of
economic intercourse.
To begin with, all freedom in the choice of professions came to an end.
Corporations are required to hold their members to their occupations all
through life. All attempts of single members to leave their place of abode and
customary work are considered as a flight from duty and severely forbidden. In
395, e.g., Arcadius and Honorius decree heavy fines against powerful people who
conceal and protect fugitive members of curiae and collegia.
For each one of the latter the patron has to pay a fine of a pound of gold. The
codices are full of enactments against fugitives of this kind, and such
legislation would prove, by itself, that a regime of caste was being gradually
established in the Empire. It is certain that the invasions of barbarians, such
as those of Alaric for example, contributed powerfully to scatter the working
population, but, apart from these, one of the motives of flight was the heavy
burden of taxation. It is probable that the initiative in regard to the
measures of stern compulsion came not from the bureaucrats of the Empire, but
from the corporations themselves which were made liable to the requirements of
the State in case of the flight of their members. Of course, the consistent
enforcement of such a policy actually blocked the natural selection of
professions and the development of independent enterprise.
Let us, to take a concrete example, attend somewhat closer to the
discipline imposed on the important college of navicularii. During the first two
centuries of our era the term designated all ship-owners engaged in the
carrying trade by sea; gradually it came to mean shippers employed by the State
for the transport of goods, especially of corn. Most of the corn necessary for
the population of Rome was derived from Egypt and Africa, and we hear of a
large fleet starting from Alexandria for the purpose of carrying over the
supply. There is good evidence to show that during the second century A.D. the
college was composed of men who had joined it as voluntary members and sought
the privileges which were conceded to it in return for its services to the
State. All this appears changed in the fourth century. The navicularii are to devote
themselves primarily to the transport of goods belonging to the State, more
particularly corn and oil for Rome and Constantinople, while African navicularii were
bound to bring wood for fuel to the public baths of Rome. The Egyptian navicularii received their cargo from the collectors of the annona, the corn tribute in the
province. The season for the voyages of their ships was reckoned from the first
of April to the 15th of October, the other months being held free on account of
stormy weather. Each navicularius had to send his ships to the fleet once in two years. When the ship weighed
anchor it had to proceed by the shortest route and not to stop anywhere without
absolute necessity. Should one of the ships of the corn fleet be delayed in a
port the governor and Senate of the place were bound, if necessary, to use
force, in order to send the merchants out to sea again. Outside these official
journeys they had the right to move on their own behalf, but evidently their
right did not outweigh the uncomfortable limitations imposed on them during
their service period, as we find the emperors endeavoring in every way to keep
the navicularii to their task and to prevent them from slipping out of the college. A curious
letter of St Augustine tells how the bishop refused to accept the bequest of a
certain Bonifacius, an African navicularius, on behalf of the see of Hippo. Bonifacius had
disinherited his son and wanted to pass over his property to the Church. St
Augustine refuses to accept the gift, because he does not wish to entangle the
Church with the dealings of the navicularii. In case of shipwreck the Government would order
an inquiry, the sailors rescued from the wreck would be put to torture, the
Church would have to pay for the lost cargo, etc. The members of the college
evidently had to be rich men and, sometimes, if there were gaps to be filled,
the State would compel rich men to join the corpus naviculariorum. The service was
hereditary, and if any member absconded, his property was forfeited to the
college. These facts may be sufficient to show to what extent the commerce of
those days suffered under the stringent discipline imposed by the requirements
of the State, and what a queer mixture of a business man and of an official a shipowner of those days was. I may add that, although we
know most about navicularii,
bakers, purveyors of pork, and similar merchants engaged in supplying the
capitals with food. The provisioning of the smaller towns and the management of
all crafts and trades were carried on more or less on similar principles.
Decay of
Municipal Institutions
An important chapter in the history of the decline and fall of the
Empire is constituted by the gradual decay of municipal institutions. The
ancient world took a long time to exchange its organization of free cities for
that of a great power, governed by a centralized bureaucracy. Even after the
conquest of its provinces the Roman commonwealth remained substantially a
confederation of cities, and municipal autonomy prospered for a long while. We
see the cities of the first and second centuries vying one with the other in
local patriotism, in the munificence of leading citizens, in generous
contributions of private men towards the welfare of poorer classes, public
health, and order. The economic progress brought about by the establishment of
the Empire made itself felt primarily in the increased activity and prosperity
of city life. But threatening symptoms begin to appear even in the second
century A.D. Municipal self-government, bereft of its political significance,
restricted to the sphere of local interests and local ambitions, is apt to
degenerate into corrupt and spendthrift practices: the wealthier provincial
citizens ruin themselves by lavish expenditure on pageants and distributions,
municipal enterprise in matters of building and philanthropy often turns out to
be extravagant and inefficient. The emperors find no other means of remedying
such defects than the institution of curators of different kinds—commissioners
for the correction of the condition of free cities. In the correspondence
between Pliny and Trajan the imperial commissioner is already seen to interfere
in the most minute questions of city administration and, at the same time, he
is constantly applying for direction to his imperial master. The ideal of centralization
is clearly expressed in this intimate intercourse of two well-meaning and
talented statesmen: the Emperor appears in the light of an omniscient and
all-powerful Providence watching over all the dealings and doings of his
innumerable subjects. In order to embody such an ideal the central power had to
surround itself with helpers and executive officers, and Hadrian laid the
foundations of a Civil Service more comprehensive and better organized than the
rudimentary administrative institutions of the Commonwealth and of the early
Empire. Later on Diocletian and Constantine multiplied the number of
bureaucratic organs and combined them into one whole by the bands of constant
supervision and iron discipline.
But even before this ultimate completion of bureaucracy in the fourth
century, in the very beginnings of the system of central tutelage, a kind of
vicious circle formed itself: central authority was called upon to interfere on
account of the deplorable defects of municipal administration, while municipal
life was disturbed and atrophied by constant interference from above. It is
impossible to say precisely what was cause and what was effect in this case:
the process was, as it happens in many diseases, a constant flow of action and
reaction. The jurists of the third century find already a characteristic
formula for corporative town organization in an analogy with the condition of a
minor under tutelage, and this analogy is followed up into all sorts of
particulars as to rights and duties. No wonder that for many citizens municipal
life loses its interest, that they try to eschew the burdens of unremunerated
and costly local administration, and that as early as the time of the Severi compulsion has sometimes to be used to bring
together a sufficient number of unwilling magistrates and members of municipal
senates.
Christianity
and Municipal Functions
A circumstance which in itself would have hardly been sufficient to
overthrow municipal organization, certainly contributed to divert people's
minds from the customary trend of local patriotism and to make the performance
of certain duties difficult—I mean the spread of Christianity. Municipal
institutions were intertwined with cults of Roman and local gods, including
religious devotion to the Deity of the Emperors. The new faith, on the other
hand, did not admit of sacrifices or prayer to the false gods of heathendom:
hence a conflict which did not admit of a ready solution. Let us listen to the
somewhat exaggerated statement of Tertullian—“We concede” he says, “that a
Christian may without endangering salvation assume the honor and title of
public functions—if he does not offer sacrifices nor authorize sacrifices, if
he does not furnish victims, if he does not entrust anybody with the upkeep of
temples, if he does not take part in the management of their income, if he does
not give games either at his own or at the public expense, if he does not
preside at them, if he does not announce or arrange any festival, if he avoids
all kinds of oath and abstains, while exercising power, from giving sentence in
regard to the life or the honor of men, decisions as to money matters being
excepted; if he does not proclaim edicts, nor act as a judge, nor put people
into prison or inflict torture on them. But is all this possible? As a matter
of fact the heathen State did certainly not go out of its way to make all these
exceptions possible, and conflicts between law and religious conviction arose
every day. On many occasions Christians of a softer mould submitted to what
they considered to be inevitable, and performed most of the duties challenged
by the fiery African. The Church had to work out a penitentiary code for those
among its members who had sullied themselves by heathen practices (see e.g. the
canons of the Synod of Elvira in Spain). Sometimes again the more firm among
the Christians made a stubborn stand and were martyrised for their protest as enemies of the Roman State. Altogether there can be no
doubt that the inherent contradiction between Christian religion and the pagan
practices of municipal life did put an extra strain on the latter and could not
but increase the disorder which was setting in. The bold step taken by
Constantine in recognizing Christianity as a state religion saved the situation
to some extent, but it could not do away at a stroke with all the pagan
elements of municipal life: the strife between religions assumed a new aspect,
and as the vital connection between local self-government and local cults was
never restored, that unity of conception which marked antiquity when at its
best had to be replaced by a deep dualism tending towards new solutions of
political and moral problems. The greatest representative of conquering
Christianity, St Augustine, recognizes the defeat of the material world of
antiquity and has to fashion his ideals according to a scheme of two cities in
which only the heavenly one appeals to his devotion and energy.
The Curiales
Apart from this complication arising out of peculiarities of religious
history, the middle class of the citizens was undergoing a transformation
similar to that of the merchants and craftsmen. When the chaotic conditions of
the second half of the third century were arrested by the statesmanship and
military power of Aurelian and Diocletian, the policy of compulsion was brought
to bear with full weight on the well-to-do inhabitants of cities. They were
mostly not only house owners in our sense, but also owners of lands in the
vicinity of the towns, although distinctions which it is somewhat difficult for
us at the present time to formulate in detail were drawn between them and the possessores or
landowners properly so called. However, the bulk of the well-to-do townsmen
was considered as a separate class, the curiales, out of which the actual members of city senates,
the decuriones,
as well as its executive officials and justices, were selected. Yet the
connection between the curiales group and the actual office-holders was so close, there were so few members of
the former who had not to serve in one way or the other, that the enactments of
the Codes currently confuse the two distinct terms—curiales and decuriones. This confusion of
itself points to the overburdening of the middle class in the towns with
service. And we find indeed that its members are compelled to take over without
salary the various personal munera, or charges, of local government, to administer the
town, to act as petty justices, to take part in deputations, to arrange games,
to inspect public buildings, to provide fuel for baths, to superintend postal
and transport service (cursus publicus), to
collect rates, etc.
The most burdensome of their obligations were connected with the
collection of taxes. They were chiefly responsible for assessing the town
population, and out of their number were selected the inspectors of public
stores (horrea)
and the decemprimi (Searporrot.), who had to collect the land tax and
the tribute in kind (annona).
Both heathen and Christian authors testify to the crushing burden of taxation
during the fourth and fifth centuries, and the unfortunate curiales, who were made the
instruments of collection under the watchful and extortionate supervision of
state officials, were not only suffering from the unpopularity of their
functions, but had constantly to fall back on their own resources in order to
make good deficiencies and arrears. The decemprimi were primarily responsible as collectors, and
when they vacated their office they had to nominate their successors and to
stand security for their good behavior. Not content with this the provincial
authorities commonly made the town, that is, primarily the town senate (curia), liable for deficiencies in the
full sum required. The emperors sometimes intervened to forbid such collective
liability, but on other occasions they enforced it in the most sweeping manner,
as for instance when Aurelian, and later on Constantine, decreed that the town
senates (ordines)
should be made responsible for the taxes of deserted estates, and in case they
should be unable to support the burden it should be distributed among the
various local districts and estates.
In consequence of such oppressive burdens laid on the curiales we
witness the curious spectacle of widely spread attempts on the part of the
citizens to escape into more privileged professions — into the clergy or the
army—and even of their flight into the country, where they were sometimes glad
to live and work as simple coloni. The Codex Theodosianus and
the Codex Justinianus are full of enactments
forbidding the curiales to leave the place of their birth, condemning them to a hereditary subjection
to municipal charges (munera)
in fact turning their condition into a kind of serfdom. All the sons of a curialis had to
follow their father's career, they were deemed curiales from the date of their
birth. If there was not a sufficient number of persons of this class to uphold
all its obligations, owners of estates (possessores), denizens (incolae), well-to-do plebeians,
were pressed into it.
The wretched townspeople were suspected of wanting to escape by flight
from their onerous condition and had to apply to the governor for special leave
of absence when they left the place of their birth for the sake of business or
travel. If one of them wanted to change permanently his place of abode he was
bound to provide a substitute or to leave a great part of his fortune to the
curia. This epoch of imperial legislation does away, for fiscal and
administrative purposes, with some of the fundamental principles of Roman law
in its better times. A curialis,
though a Roman citizen in the exercise of full civil rights, is unable freely
to bequeath his fortune to another Roman citizen belonging to a different city:
property passing out of the jurisdiction of one curia into that of another is charged with a heavy special payment
to the former senate, and in fact remains "obnoxious" to it; a later
constitution enacted that at least one-fourth of the property should remain in
the hands of the original curia. If a curialis wanted to sell land or slaves employed in the
cultivation of his estate he had to obtain leave from the governor of the
province. Heiresses were much hampered in the right to marry strangers outside
their late father's curia and had in such cases to relinquish one-fourth part
of their property.
The climax of this legislation of servitude is reached when the emperors
actually condemn people for some crime or misdemeanor to be enrolled as members
of a curia: sons of veterans, e.g. who, by chopping off their fingers, had
rendered themselves unfit to serve in the army, were stuck into the curia, and the same fate awaited
unworthy ecclesiastics.
The Colonate
The policy of compulsion and the spread of caste were undoubtedly
responsible to a great extent for another social process of great moment,
namely, for the formation of the colonate, an institution destined to play an important part
in medieval peasant life. Its roots stretch far back into the earlier history
of Roman husbandry. Columella, a writer on
agriculture of the first century A.D., instructs his readers that it is
advantageous for owners of estates of insufficient fertility and difficult
cultivation to employ free farmers, coloni, instead of slaves. The tenants were sometimes
settled on the métayer system (colonia partiaria),
the farmer sharing crops with the owner. Juridically the relation was regulated by the rules of the law of lease (locatio conductio)
and the Digest often refers to the various problems arising under this
contract; custom and tacit agreement played a great part in the treatment of
such questions in practice. By the side of contractual relations between
private landlords and tenants stood administrative regulations as to the
management of vast domains of the Crown and of the private patrimony of the
Emperor. Crowds of tenants were settled on these estates who had to look for a
guarantee to the possession of their holdings rather to the equity and properly
understood interest of their imperial masters than to formal contractual right.
Lastly, a good many slaves were put into a position similar to that of the
tenants of free birth, and as a matter of fact, it got to be more and more
difficult to distinguish between coloni by contract and quasi-coloni by long usage and customary tenure. One trait which tended to reduce the
distance between the different groups was the heavy indebtedness of most free
farmers: they had often to take their agricultural outfit from the landowner
along with the farm; in case of economic difficulties they turned to him as to
their natural protector and a capitalist near at hand, and when once debts had
been made, it was exceedingly difficult to pay them off.
Fourth-century legislation approaches these relations in its usual
despotic manner. A law of Constantine dated A.D. 332 gives us the first glimpse
of a new order of men standing between the free and the unfree and treated, in fact, as serfs of the glebe. It runs thus: “With whomsoever a colonus belonging
to someone else (alieni juris) may be
discovered, let the new patron not only restore the colonus to the place of his birth
(origini),
but let him also pay the tax for the time of his absence. As for the coloni themselves
who contemplate flight, let them be put into fetters after the manner of
slaves, so that they should perform duties worthy of freemen on the strength of
a servile condemnation”. But from Constantine again we have another enactment
marking the other side of the condition, namely, the legal protection afforded
to the colonus against possible exactions. About AD 325 the Emperor laid down in a rescript to the vicarius of the East that, “a colonus from whom a landlord
exacted more than it was customary to render and than had been obtained from
him in former times, may apply to the judge nearest at hand and produce
evidence of the wrong. The person who is convicted of having claimed more than
he used to receive shall be prohibited to do so in the future after having
given back what he extorted by illegal superexaction”.
The legal protection afforded to the coloni was not suggested by
principles of humanity, but by the necessity of keeping up at least some
portion of the previous personal freedom of these peasants in order to
safeguard the interest of the State which looked upon this part of the
population as the mainstay of its fiscal system. If the emperors made light of
the right of free citizens to choose their abode and their occupations as they
pleased and did not scruple to attach the coloni to their tenures, the
absolute right of landowners to do what they pleased with their land was not
more sacred to them. Constantine imposed the most stringent limitations on
their power of alienating plots of land. "If someone wants to sell an
estate or to grant it, he has not the right to retain coloni by private agreement in
order to transfer them to other places. Those who consider coloni to be useful, must either
hold them together with the estates or, if they despair of getting profit from
these estates, let them also give up the coloni for the use of other
people". In the reign of Valentinian, Valens, and Gratian, about A.D. 375,
this principle is characteristically extended to the very slaves. "As born
cultivators (originarii)
cannot be sold without their land, even so it is forbidden to sell agricultural
slaves inscribed in the census rolls. Nor must the law be evaded in a
fraudulent manner, as has been often practiced in the case of originarii,
namely, that while a small piece of land is handed over to the buyer, the
cultivation of the whole estate is made impossible. But if entire estates or
portions of them pass to a new owner, so many slaves and born cultivators
should be transferred at the same time as used to stay with the former owners
in the whole or in its parts". The fiscal point of view is clearly
expressed on many occasions. Valentinian and Valens entrust the landowners with
the privilege of collecting the taxes of their coloni for the State with the
exception of those tenants who have besides their farms some land of their own.
This right and duty might be burdensome, but it certainly gave the landlords a
powerful lever in reducing their free tenants to a condition of almost servile
subjection. Perhaps the most drastic expression of the process may be seen in
the fact that coloni lose their right to implead their masters in civil actions except in cases of superexaction. In criminal matters they were still deemed
possessed of the full rights of citizens.
Rise of
Rustic Classes
But it would be wrong to suppose that the condition of the farmers in
the fourth and fifth centuries is characterized 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 coloni, 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
labor and direct orders, but entrust it to farmers. The great latifundia of
earlier times were parceled 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 laborers. 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 a ‘meliorative’ device, a means
for keeping up culture and putting devastated districts under the plough. Among
the earliest roots of the colonate we find the license 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 AD 319. 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 the Greek expression, thytefiy 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 ephyteusis as a widely prevalent
contract is very characteristic of the epoch.
Epibole
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 does 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. 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 labor 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 everyone 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. 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.
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 Hellenized population; and it
is on such estates that the terms emphyteusis first appear 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.
Jus perpetuum
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 (canon). 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 favor 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 AD 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 organized 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 centralized 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.
Patronage.
Special Authorities
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 favored 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 honored by the title of patroni and by
certain privileges in regard to precedence and ceremonial rights. The emperors
of the fourth and of the fifth century had to forbid patronage because it
constituted a menace to law and to public order. We hear of cases of
"maintenance"; parties to a trial being protected by powerful patroni, who seek
to turn the course of justice in favour of their clients. Libanius, a
professional orator of the epoch of Valentinian II and Theodosius I, gives a
vivid description of the difficulties he had to meet in a suit against some
Jewish tenants of his who refused to pay certain rents according to ancient
custom. If we are to believe our informant, they had recourse to the protection
of a commander of troops stationed in the province, and when Libanius came into
court and produced witnesses, he found the judge so prepossessed in favour of
his opponents that he could not get a hearing, and his witnesses were thrown
into prison or dismissed. In another part of the same speech Libanius inveighs
against officers who prevent the collection of taxes and rents and favour
brigandage. There may be a great deal of exaggeration in the impassioned
account of the Greek rhetor, but the principal heads
of his accusation can be confirmed from other sources, especially from imperial
decrees. A company of soldiers gets quartered in a village and when the curiales of the next town appear to collect taxes or rents,
they are met by violence and may be called fortunate if they escape without
grievous injury to life and limbs. In the Theodosian Code enactments directed
against patronage in villages go so far as to forbid the acquisition of
property in a rural district by outsiders for fear the strangers should prove
powerful people capable of opposing tax collectors. According to the account of Salvian, a priest who lived in the fifth century in
southern Gaul, patronage had become quite prevalent in that region. People
turned to private protection out of sheer despair and surrendered their land to
the protector, rather than face the extortions of public authorities. There can
be no doubt that patrons and protectors of the kind described, if they were
helpful to some, were dangerous and harmful to others, and the State in the
fourth and fifth centuries had good reasons to fight against their influence.
But the constant repetition of the same injunctions and prohibitions proves
that the evil was deeply rooted and difficult to get rid of. The Sisyphean task
undertaken by the Government in its struggle against abuses and encroachments
is well illustrated by various attempts to create special authorities to repress
the exactions of ordinary officers and to correct their mistakes.
One of the principal expedients used by Diocletian and his successors
was to institute a special service of supervising commissaries under the names
of agentes in rebus and curiosi. They were sent into the
provinces more particularly to investigate the management of the public post,
but, as a matter of fact, they were employed to spy on governors, tax
collectors, and other officials. They received complaints and denunciations and
sometimes committed people to prison. A decree of Constantius tries to restrict
the latter practice and to impress on these curiosi the idea that they are
not to act in a wanton manner but have to produce evidence and to communicate
with the regular authorities. But the very existence of such a peculiar
institution was an incitement to delation and
arbitrary acts, and in 395 Arcadius and Honorius try to concentrate the
activity of the agentes in rebus on the inspection of the post.
"They ought not to levy illicit toll from ships, nor to receive reports
and statements of claims, nor to put people into prison". The service of
the agentes and of the curiosi was deemed to be as important as it was dangerous, and those who went through
the whole career were rewarded by the high rank of counts of the first class.
It is hardly to be wondered at that these extraordinary officials provided with
peculiar methods of delation did not succeed in
saving the Empire from the corruption of its ordinary officers.
The
Church
And yet the emperors found that the only means of exercising some
control over the abuses of the bureaucratic machinery and the oppression of
influential people was in pitting extraordinary officials against them. The defensor civitatis was designed to act as a protector of the
lower orders against such misdeeds. The office originated probably in voluntary
patronage bestowed on cities by great men, but it was regularized and made
general under Valentinian I. An enactment of Gratian, Valentinian II, and
Theodosius lays chief stress on the protection afforded by defensores to the plebs in regard
to taxation. The defensor ought to be like a father of the plebs, to prevent superexaction and hardships in the assessment of taxes both in regard to the town population
and to rustics, to shield them against the insolence of officials, and the
impertinence of judges. Not merely fiscal oppression was aimed at, but also
abuses in the administration of justice, and the emperors tried to obviate the
evils of a costly litigation and inaccessible tribunals by empowering the defensores to try
civil cases in which poor men were interested. It was somewhat difficult to
draw the line between such exceptional powers and ordinary jurisdiction, but
the Government of the later Empire had often to meet similar difficulties. An
important privilege of the defensores was the right to report directly to the emperor,
over the governor of the province: this was the only means for making protests
effective, at least in some cases. As to the mode of electing the defensores we
notice some variation: they are meant to represent the population at large and
originally the people took part in the election, though it had to be confirmed
by the emperors. In the fifth century, however, the office became a burden more
than an honor, a quantity of petty police functions and formal supervision was
tacked on to it, and the emperors are left no choice but to declare that all
notable citizens of the town have to take it in turn. This is certainly a sign
of decline and there can be no doubt that the original scope of the institution
was gradually lost sight of.
A third aspect of the same tendency to counterbalance the evil working
of official administration by checks from outside forces may be noticed in the
political influence assigned to the Church. Here undoubtedly the emperors of
the fourth and fifth centuries reached firm ground. It was not a mere shuffling
of the same pack of cards, not a pitting of one official against the other by
the help of devices which at best answered only for a few years. It was an
appeal from a defective system to a fresh and mighty force which drew forth the
best capabilities of the age and shaped its ideals. If anywhere, one could hope
to find disinterested effort, untiring energy, and fearless sense of duty among
the representatives of the Church, and it is clear that both government and
people turned to them on especially trying occasions. We need not here speak of
the intense interest created by ecclesiastical controversies or of the signal
evidence of vigorous moral and intellectual life among the clergy. But we have
to take these facts into account if we want to explain the part assumed by
Church dignitaries in civil administration and social affairs. A significant
expression of the confidence inspired in the public by the ecclesiastical
authorities may be seen in the custom of applying to them for arbitration
instead of seeking redress in the ordinary courts. The custom in question had its
historical roots in the fact that before the recognition of Christianity as a
state religion by the Empire the Christians tried to abstain as far as possible
from submitting disputes and quarrels to the jurisdiction of pagan magistrates.
There was a legal possibility of escaping from such interference of pagan
authorities by resorting to the arbitration of persons of high moral authority
within the Church, especially bishops. When Christianity conquered under
Constantine, episcopal arbitration was extended to
all sorts of cases and an attempt was made, as is shown by two enactments of
this emperor to convert it into a special form of expeditious procedure, well
within reach of the poorer classes. Episcopal awards in such cases were
exempted from the ordinary strict forms of compromise accompanied by express
stipulation; the procedure was greatly simplified and shortened, the recourse
of one party to the suit to such arbitration was held to be obligatory for the
other party. At the close of the fourth century Arcadius considerably
restricted this wide jurisdiction conceded to bishops and tried to reduce it to
voluntary arbitration pure and simple. But the moral weight of their decisions
was so great, that the ecclesiastical tribunals continued to be overwhelmed
with civil cases brought before them by the parties. Not only Ambrose of Milan,
who lived in the time of Theodosius the Great, but also Augustine, who belongs
chiefly to the first quarter of the fifth century, complain of the heavy burden
of judicial duties which they have to bear.
The bishops had no direct criminal jurisdiction, but through the right
of sanctuary claimed by churches and in consequence of the general striving of
Christian religion for humanity and charity, they were constantly pleading for
grace, mitigation of sentences, charitable treatment of prisoners and convicts,
etc. Panic stricken and persecuted persons and criminals of all kinds flocked
for refuge to the churches; famous cathedrals and monasteries presented curious
sights in those days: they seemed not only places of worship but also
caravanserais of some kind. Fugitives camped not only in the churches but at a
distance of fifty paces around them. Gangs of these poor wretches accompanied
priests and deacons on their errands and walks outside the church, as in such
company they were held to be secure from revenge and arrest. The Government
restricted the right of fiscal debtors to take sanctuary in order to escape
from the payment of taxes, but in other respects it upheld the claims of
ecclesiastical authority. Certain compromises with existing law and custom had
undoubtedly to be effected. The 'Church did not attempt, for instance, to
proclaim the abolition of slavery. It merely negotiated with the masters in
order to obtain promises of better treatment or a pardon of offences. But it
countenanced in every way the emancipation of slaves and protected freedmen
when once manumitted. The Acts of Councils of the fourth century are full of
enactments in these respects.
Another domain in which the authority of the bishops found ample scope
for its assertion was the sphere of moral police, if one may use the
expression. To begin with, pious Christians were directed by the Gospel to
visit prisoners, and this commandment of Christ became the foundation for a
supervision of the Clergy over the state of prisons, their sanitary conditions—baths,
food, the treatment of convicts, etc. In those times when terrible need and
famines were frequent, parents had the legal right to sell their children directly
after their birth and a person who had taken care of a foundling was considered
its owner. It is to ecclesiastical authorities that the emperors turn in order
to prevent these rights from degenerating into a ruthless kidnapping of
children. The Church enforces a delay of ten days in order that parents who
wish to take back their offspring should be able to formulate their claims. If
they have not done so within the days of respite, let them never try to
vindicate their flesh and blood any more: even the Church will treat them as
murderers (Council of Vaison, cc. 9, 10). Again,
ecclesiastics are called upon to prevent the sale of human beings for immoral
purposes: no one ought to be forced to commit adultery or to offer oneself for
prostitution, even if a slave, and bishops as well as secular judges have the
power to emancipate slaves who have been subjected by their masters to such
ignominious practices. They are also bound to watch that women, either free or unfree, should not be constrained to join companies of
pantomime actors or singers against their will.
In conclusion it may be useful to point out once more that the social
process taking place in the Roman Empire of the fourth and fifth centuries
presented features of decline and of renovation at the same time. It was
brought about to a great extent by the increased influence of lower classes and
the influx of barbarous customs, and in so far it expresses itself in an
undoubted lowering of the level of culture. The sacrifice of political freedom and
local patriotism to a centralized bureaucracy, the rigid state of siege and the
caste legislation of the Constantinian and Theodosian
era produced an unhealthy atmosphere of compulsion and servility. But at the
same time the Christian Church asserts itself as a power not only in the
spiritual domain, but also in the legal and economic sphere. Society falls back
to a great extent on the lines of local life and of aristocratic organization,
but the movement in this direction is not a merely negative one: germs appear
which in their further growth were destined to contribute powerfully towards
the formation of feudal society.