The German and Gallic provinces had for long been considered as in an especial sense Imperial provinces, and their 'ager publicus' and tithe-lands had become regarded to a great extent as the personal domain of the emperors. They were under the personal control of his imperial procuratores, or agents.443

In fact there had grown up strictly imperial classes of military and fiscal officers with local jurisdiction over larger or smaller areas. There were the 'duces,' or 'magistri militum,' and 'comites,' and 'vicarii,' 444 whilst in the lowest rank of 'procuratores,' possibly controlling smaller fiscal districts or [p301] subdistricts, were the 'ducenarii,' and 'centenarii.' 445 They seem to have combined military, and judicial, and fiscal duties with functions belonging to a local police.

Whatever at first the exact position and authority of these military and fiscal officers of the Emperor may have been, there is evidence that they easily assumed a kind of manorial lordship over the portion of the public domains under their charge in two distinct ways.

In the first place, the 'villa' in which a military or fiscal officer lived was the fiscal centre of his district. He was the 'villicus' by whom the 'annonæ,' tribute, and 'sordida munera' were exacted. In some instances the services seem to have been rendered in the form of work on his 'villa,' or on the villas of 'conductores,' by whom the special products of some districts were sometimes farmed.446 And there are passages in the Codes which complain of the tendency in these Imperial officers of higher and lower rank to oppress those under their jurisdiction, even sometimes using their services on their own estates, and thus arrogating to themselves almost the position of manorial lords, whilst reducing their fiscal dependants to the position of semi-servile tenants.447 [p302]

In the second place, the practice also was complained of by which the fiscal officers, using their influence unduly, induced tenants on the public lands of their district, and sometimes even whole villages, to place themselves under their 'patrocinium,' thereby practically converting themselves into semi-servile tenants of a mesne lord who stood between them and the emperor.448

The question would be well worth a more careful consideration than can be given here how far these tendencies towards the gradual establishment under [p303] the later empire of a manorial relation between the 'coloni' and 'læti' on the crown lands, and the fiscal officer of the district in which they lived, were the beginnings of a process which ended in the division of the crown lands practically into 'villæ,' or districts appendant to the villa of the fiscal officer, which in their turn may have been the prototypes of the villas or manors on the 'terra regis' of Frankish and Saxon kings.449

As we have said, the use of the word 'villa' in the Salic laws and early capitularies, for the smallest general territorial unit as well as for the 'villa' of a private lord, would thus perhaps be most easily accounted for. And possibly the continuity which such a result would indicate between Roman and Frankish institutions might, after all, be confirmed by the seeming continuity, in name at least, between the fiscal officers of the later empire and those of the Salic and Ripuarian, and other early barbarian codes. The appearance of the dux and the comes and the centenarius in these codes, and in the early capitularies, as the military, fiscal and judicial officers of the Frankish kings, is at least suggestive of continuity in fiscal and judicial arrangements, though of course it does not follow that many German elements may not have been directly imported into institutions which, even under the later Roman rule in the Romano-German provinces, already indirectly and to some extent were [p304] no doubt the compound product of both Roman and German ingredients.450

The settlement of these difficult points perhaps belongs to constitutional rather than to economic history.

Having noticed the evident tendencies of the fiscal district of the later empire to approach the manorial type, and to become a crown villa or manor with dependent holdings upon it, we must pass on to a further important effect of the oppression of the imperial officers. We have noticed the edicts intended to prevent the tenants on the imperial domain from putting themselves under their direct 'patrocinium.' These edicts did not prevent the over-burdened and oppressed tenant from putting himself under the 'patrocinium' of the lord of a neighbouring villa, thereby becoming his semi-servile tenant, in order to escape from the cruel exactions of the tax-gatherer.

This process was called 'commendation,' and it was carried out on a remarkable scale. It consisted in the surrender by the smaller tenants on the public lands of themselves and their property to some richer landowner; so parting with their inheritance and their freedom whilst receiving back a mere occupation of their holding by way of usufruct only as a 'præcarium,' or for life, as a servile tenement, paying [p305] to their lord the fixed census or 'gafol' of the servile tenant.

By this process they rapidly swelled the number of servile tenants on villas of the manorial type, and hastened the growing prevalence of the manorial system.451

This process of commendation was nothing new. It was an old tribal practice at work long before Roman times in Gaul, and destined not only to outlast the Roman rule, but also to receive a fresh impulse afterwards from the German invasions. And as its progress can be traced step by step from Roman times, through the period of conquest into the times of settled Frankish rule, and its history is closely mixed up with the history of the growth of the Roman villa into the mediæval manor, and with the change of the 'sordida munera' from public burdens into manorial services, it presents useful stepping-stones over a gulf not otherwise to be easily crossed with security.

Cæsar describes how in Gaul, even before the Roman conquest, the free tribesmen, overburdened by the exactions of chieftains and the tributes imposed upon them (probably by way of 'gwestva' or food-rents), surrendered their freedom, and became little more than 'servi' of the chiefs. And so far had this practice proceeded that he describes the people of Gaul as practically divided into two classes—the chiefs, whom he likened to the Roman 'equites;' [p306] and the common people, who were in a position little removed from slavery.452

Further, there is the evidence of Tacitus himself that oppressive Roman exactions were forcing free tribesmen, even in Frisia, to surrender their lands and their children into a condition of servitude.453

Again, Gregory of Tours454 describes how, in a year of famine, the poor surrendered their freedom—subdebant se servitio—to escape starvation. [p307]

Lastly, in the fifth century (A.D. 450–90) Salvian455 describes at great length the process by which Roman freemen were in the practice of surrendering their possessions to great men and becoming tributary to them, in order to escape the exactions of the officers who collected the 'tributum.' He narrates how the rich Romans threw upon the poor the weight of the public tribute, and made extra exactions of their own; how multitudes in consequence deserted their property and became bagaudæ—rebels and outlaws;—how, in districts conquered by the Franks and Goths, there was no such oppression; how Romans living in these districts had their rights respected; how people even fled for safety and freedom from the districts still under Roman rule into these Teutonic districts; and he expresses his wonder why more did not do this.

Many (he says) would fly from the Roman districts if they could carry their properties and houses and families with them. As they cannot do this (he goes on to say), they surrender themselves to the care and protection of great men, becoming their dediticii or semi-servile tenants. And the rich (he complains) receive them under their 'patrocinium' or overlordship, not from motives of charity, but for gain: for they require them to surrender almost all their substance, temporary possession only being allowed to the parent making the surrender during his life,456 while the heirs lose their inheritance. And this (he adds) is not all. [p308] The poor wretches who have surrendered their property are compelled nevertheless to pay tribute for it to these lords, as if it were still their own. Better is the lot of those who, deserting their property altogether, hire farms under great men, and so become the free coloni of the rich. For these others not only lose their property and their status, and everything that they can call their own; they lose also themselves and their liberty.457

This evidence of Salvian proves that the surrender by freemen of themselves and their property to an overlord was rapidly going on in Roman provinces during the fifth century, and this as the result of Roman misrule, not of German conquest.

IX. THE SUCCESSION TO SEMI-SERVILE HOLDINGS; AND METHODS OF CULTIVATION.

From the evidence of Salvian we can pass at once, crossing the gulf of Teutonic conquest, to that of the Alamannic and Bavarian laws and the monastic cartularies, in which we shall find the process described by Salvian still going on under German rule, and thereby holding after holding, which had once been free, falling under the manorial lordship of the monasteries. [p309]

But before we do so it may be worth while to inquire further into the position, under Roman rule, of the class of semi-servile tenants into which a free possessor of land descended when he made the surrender of his holding. We may ask, What was the rule of succession to semi-servile holdings? and what were the customary methods of cultivation followed by semi-servile tenants, whether upon the villa of a lord or upon the imperial domains?

Salvian distinctly states, as we have seen, that upon the death of the person making the surrender to a lord, the right of inheritance was lost to his children. The holding became, on the surrender, a 'præcarium'—a tenancy at the will of the lord by way of usufruct only. This being so, any actual succession to the holding must naturally have been, not by inheritance, but, in theory at all events, by regrant from the lord to the successor—generally a single successor—for, under the circumstances, the rule of single succession would be likely to be adopted as most convenient to the landlord.

The tenants produced by commendation were, however, hardly a class by themselves. They most likely sank into the ordinary condition of the large class of 'coloni,' &c., on the great provincial estates. And there is a passage in the 'Institutes of Justinian' which incidentally seems to imply that the ordinary 'colonus' of the later empire was very nearly in the position of the 'usufructuarius,' and held a holding which, in legal theory at least, ended with his life.458 [p310] And if this was the generally received theory of the status of semi-servile tenants on the great estates, the probability is that the practice of single succession by regrant may have followed as a matter of convenience and as an all but universal usage.

Further, if we may suppose this to have been the case on the private estates of provincial landowners, the question remains whether the semi-servile classes of tenants on the imperial domains may not have been subject to the same customary rules.

Now it must be remembered that the legal theory as regards that part of the provincial land which was not centuriated and allotted to the soldiers of the conquering Roman army as a 'colonia,' but left in the possession of the old barbarian inhabitants, was that the latter were merely usufructuary tenants, paying tribute for the use of the land which belonged now to the conquerors.459 And although quasi-rights of inheritance, founded perhaps more upon barbarian usage than direct Roman law, probably grew up generally in the more settled districts of Gaul and the two Germanies, yet there may well have been grades of tenants, some with rights of inheritance and some without them. It may well be questioned whether, in the case of the 'læti' and other semi-servile tenants, hereditary rights were generally recognised. If we take into account the tendency we have noticed in the management of the provincial domains towards manorial methods and usages, it seems at least probable that the semi-servile classes of tenants under [p311] the imperial military and fiscal officers were placed much in the same position as the coloni on private villas; that, in fact, their tenure was only a usufruct for life or at will—a tenure to which, by custom, the single succession would be a natural incident.

Passing now specially to the tenants on the 'Agri Decumates' and other tithe lands north of the Alps, and asking what were their rules of succession and methods of husbandry, perhaps sufficient stress has not always been laid upon the elasticity with which Roman provincial management adopted local customs and adapted itself to the local circumstances of a widely extended empire. We know little of the methods and rules adopted in the management of the 'tithe lands,' but if the foregoing considerations be sound, it may be that but little change was needful to convert their tenants into serfs on a manorial estate. They may have had but little to gain or to lose, or even to alter in their habits, in exchanging the rule of the imperial fiscal officers for the lordship of the later manorial lord.

It is much to be hoped that more light may ere long be thrown upon this obscure subject by students of provincial law and the barbarian codes. In the meantime it may be possible, perhaps—so slowly do things change in the East—that an actual modern example taken from thence of the customary mode of managing public tithe lands at the present moment in what was once a Roman province might be a better guide to a correct conception of what went on 1,500 years ago on the 'Agri Decumates' than we could easily get in any other way.

The Roman province of Syria is peculiarly [p312] interesting, because the Roman code460 applying to it in the fifth century happens to remain, and to afford interesting evidence of adaptation to local customs in a district unique in the advantage that its usages, little altered by the lapse of time, can be studied as well in the parables of the New Testament as on its actual fields to-day.

Sir Henry S. Maine461 has recently referred to the parable of the 'Prodigal Son' as illustrating the custom still followed in Turkey of sons taking their portions during the parent's lifetime, leaving one home-staying son to become the single successor to the remainder, including the family homestead and land.

The Syrian code,462 following Roman Law,463 insisted upon three-twelfths of a man's property going to his children equally, and left him at liberty to dispose of the remaining nine-twelfths among them at his pleasure. But an emancipated son had no claim to a share in the three-twelfths.464 These local or Roman usages have an interesting connexion with the permission which, as we shall see in the next section, was given by the Bavarian code of the seventh century, to free possessors of land 'after they had made division with their sons' to surrender their 'own portion,' by way of commendation, to the Church.465 [p313]

It is remarkable that, to the present day, in those districts of Bavaria where the Code Napoléon has not superseded ancient custom and law, the 'Pflicht-theil' of not less than one-half or one-third, as fixed by the later Roman law, still remains inalienable from the heirs, whilst a custom for the father to hand over the whole or a part of the family holding to a son during his lifetime also occurs.466

These coincidences between customs of Syria and Bavaria—both once Roman provinces—refer to land of inheritance. But there were also in Syria as elsewhere in the fifth century, between the freeholders and the slaves, a class of semi-servile tenants—adscriptitii—who were, in a sense, the property of a lord.467 And besides these, again, from the time of the New Testament468 to the present, there have been tenants paying a tithe or other portion of the produce in return for a usufruct only of public or private lands.

There is no direct reference to public tithe lands in the Syrian code, but the following description of present customs as regards such lands may be valuable in the absence of earlier evidence. It describes the tenants of the Crown tithe lands in Palestine as having only a usufruct, expiring at their death, and as conducting their husbandry upon an open-field system, which being so widely spread is no doubt very ancient, and likely enough to resemble [p314] more or less closely local methods followed on the 'Agri Decumates' under Roman rule.469

This description of the mode in which public land in Palestine is often let to individual tenants or to whole villages at a rent of a tenth of the produce, and further, the picture it gives of the cultivation of the land let to a village by those villagers who supply oxen for the ploughing on an open-field system so like that of Western Europe, at least may suggest the possibility of a somewhat similar system having been adopted in the management of the tithe lands of the 'Agri Decumates.'

The allusion to the division of the fields into strips, and to the unit of land measurement being the day's work of a pair of oxen, and, we may add, the use of the same unit of measurement throughout the Turkish Empire,471 may at least prepare us to find [p316] indications of a somewhat similar system of cultivation on the tithe lands on the Danube and the Rhine when we come to examine their conditions under the early Alamannic and Bavarian laws.

And, lastly, this Eastern illustration of the modern management of 'tithe lands' may help us to give due weight to the suggestion of Sir H. S. Maine472 that not only on the 'ager publicus,' but even on the Roman provincial villa itself, in the organisation of the mostly barbarian and servile tenants, and of the husbandry, many features may well have been borrowed from ordinary and wide-spread customs of barbarian communities, thus partially explaining what must again and again strike us in this investigation, viz., the ease with which Roman and barbarian elements combined during the later Roman rule of the provinces and afterwards in producing a complex and joint result—the typical manorial estate.

X. THE TRANSITION FROM THE ROMAN TO THE LATER MANORIAL SYSTEM.

The Alamannic conquest of the province of Germania Prima, including what is now Elsass and the western part of the 'Agri Decumates,' may be described as almost a passive one. The population had long been partly German, and Roman provincial usages can hardly have been altogether supplanted in the fifth century. It was not till the Alamanni were themselves [p317] conquered by the Franks (who had in the meantime become nominally Christian) that their laws were codified. When this took place in the year 622 it was with special reference to the interests of the Church that the laws were framed, just as in the case of the first codification of Anglo-Saxon laws on King Ethelbert becoming a Christian.

The very first provision of the Alamannic laws was a direct permission to any freeman, without hindrance from 'Dux' or 'Comes,' to surrender his property and himself to the Church by charter executed before six or seven witnesses; and it provided further that if he should surrender his land, to receive the usufruct of it back again during life as a benefice charged with a certain tribute or census, his heir should not dispute the surrender.473

In the Bavarian laws of slightly later date there is a similar permission to any freeman, from his own share, after he has made division with his sons, to surrender to the Church villas, lands, slaves, or other property, to be received back as a beneficium in the same way,474 and neither 'rex,' 'dux,' nor 'any other person' is to prevent it. [p318]

Who are the people thus permitted to surrender their possessions to the Church? Clearly they are the free possessores or tenants on the public lands, now become 'terra regis,' under the fiscal officers who are still called duces and comites.

Here, then, is still going on, but in the interest of the Church, precisely the process described by Salvian, and with precisely the same results.

Further, these results can be traced with remarkable exactness; for in the charters of St. Gall and Lorsch and Wizenburg there are numerous instances of surrenders made under this law.

In the 'Urkundenbuch' of the Abbey of St. Gall, under date A.D. 754,475 there is a charter by which a possessor of land in certain 'villas' in the neighbourhood of St. Gall hands over to the monastery all that he possesses therein, with the cattle, slaves, houses, fields, woods, waters, &c., thereon, together with two servi and all their belongings; and (it proceeds) 'for these things I am willing to render service every year as follows:—viz. xxx. seglas of beer (cervesa), xl. loaves and a sound spring pig (frischenga), and xxx. mannas, and to plough 2 jugera476 (jochos) per [p319] annum, and to gather and carry the produce to the yard, also to do post service (angaria) when required.'

Here we have not only the public tributum converted into a manorial census or 'gafol,' but also the sordida munera transformed into manorial services.

In another charter, A.D. 759, is a surrender of all a man's possessions in the place called Heidolviswilare, to the Abbey, 'in this wise that I may receive it back from you per precariam, and yearly I will pay thence census, i.e. xxx. siclas of beer, xl. loaves, a sound spring frisginga, 3 day-works (operæ) of one man in the course of the year; and my son Hacco, if he survive me, shall do so during his life.' 477

In another, A.D. 761,478 the monks of St. Gall regrant a 'villa' called 'Zozinvilare' to the original maker of the surrender at the following census, viz. xxx. siclas of beer and xl. loaves, a friscinga, and two hens, with this addition—'In quisqua sicione479 thou shalt plough saigata una (one selion?) and reap this and carry it into [the yard], and in one day (jurno)480 thou shalt cut it, and in another gather it and carry it, as aforesaid.'

In the surrender of a holding 'in villa qui dicitur Wicohaim,481 the census is . . . siclas of beer, xx. maldra of bread and a frisginga, and work at the stated time at harvest and at hay-time, two days in reaping the harvest and cutting the hay, and in early spring one "jurnalis" at ploughing, and in the month of June to break up [brachan] another, [p320] and in autumn to plough and sow it—this is the census for that villa.'

These grants were clearly surrenders by freemen like those described by Salvian, which carried with them whatever coloni or servi there were upon the land.

Thus, under date 771,482 a priest gives to the monks all his property in villa Ailingas and another place, except two servi and five yokes of land; and in another place he gives 'servum unum cum hoba sua et filiis suis et cum uxore sua.' The hoba was clearly the 'hub' or yard-land of the serf, and it, he and his wife and children were all granted over by their lord to the abbey.

In the same year 771483 a man named Chunibertus and his wife surrendered an estate called Chuniberteswilari, and it is described as including just what a Roman villa would include, i.e. the villa itself (casa), surrounded by its court (curte circumclausa), together with buildings, slaves, arable land, meadows, fields, &c., &c. And yet in this case also he retains possession 'sub usu fructuario' during his life, paying the same kind of census as in the other cases—xx. siclas of beer, a maldra of bread, and a frisking.

Now, it will at once be seen how like is the census described in these charters to the Saxon gafol of the 'Rectitudines,' and of the manors of Tidenham or Hysseburne. There is distinctly the gafol, and in many cases the gafolyrth also, but no mention of the week-work. Add this, and there would be an almost exact likeness to Saxon serfdom.

But it will be remembered that even under the [p321] laws of Ine the week-work was not added to the gafol unless the lord provided not only the yard-land, but also the homestead. These surrenders were surrenders by freemen of their own land and homesteads. It was hardly likely that the more servile week-work should be added to their census. How it would fare with their children when they sought to succeed their parents in the now servile holding is quite another thing.

There is, indeed, apparently an instance, under date 787,484 of the settlement of a new serf—the grant of a fresh holding in villenage from the Abbot of St. Gall to the new tenant. The holding, if we may use the Saxon terms, is 'set' both 'to gafol and to week-work;' for the tenant binds himself (1) to pay to the abbey as census (i.e. as gafol) yearly vii. maldra of grain and a sound spring frisking, to be delivered at the granary of the monastery; and (2) to plough every week (i.e. as week-work)485 at their nearest manor (curtem) a 'jurnal' (or acre strip) in every zelga486 (i.e. in each of the three fields); and also six days in a year when work out of doors is needed, whether in harvest or hay-mowing, to send two 'mancipii' for the work: also, when work is wanted in building or repairing bridges, to send one man with food to the work, who is to stop at it as long as required. And to these payments and services the new tenant bound 'himself, his heirs, and all their descendants lawfully begotten.' [p322]

This surely is a distinct case of the settlement of a new serf upon the land, rendering in Saxon phrase both gafol and week-work; and the serfdom created is as nearly as possible identical with that of an English manor of the same date.

But to return to the surrenders. It is clear from the instances quoted that some of these owners who surrendered their holdings were holders of whole villas or heims, some of them of portions of villas or heims. And yet they placed themselves by the surrender, as Salvian described it, in a servile position, lower, as he says, than that of the coloni of the rich, for they merely retained the usufruct during their life. The inheritance was lost. And they still had a tribute to pay to their lord, though free from tribute to the public purse. The Frankish kings now stood in the place of the Roman Emperor. The old Roman tributum apparently remained, but was payable to the Frankish king. When under the Alamannic laws these surrenders were made to the Church, the tribute also was transferred from the king to the Church.

We have seen that when such a surrender had been made under Roman rule to a rich Roman landowner, the latter became responsible to the public exchequer for the tributum, but he exacted tribute in his turn from his tenant, who thus, as Salvian said, though parting with his inheritance, still paid tribute to his lord. But this tribute can hardly have been the full tributum at which the holding was assessed to the jugatio. It seems to have been rather a fixed and typical gafol or census, marking a servile condition. For in the Alamannic laws there are clauses making the following remarkable provisions:— [p323]

These clauses seem to establish clearly three facts:—

(1) That the slavery of the slaves or servi on the ecclesiastical estates had already, in A.D. 622, become modified and restricted as a matter of general ecclesiastical custom to a three days' week-work.

(2) That the proper tribute (or gafol) of persons becoming servi of the Church by surrender under this edict was to be as stated; the resemblance of the details of this tribute with those mentioned in the St. Gall surrenders showing the servile nature of the status into which those making the surrender placed themselves thereby.

(3) Freemen of the Church called 'coloni' were [p324] to pay to the Church as the coloni on the terra regis did to the king.

In other words, a whole villa or manor, with the village community of 'free coloni' and the 'servi' upon it, might be handed over as a whole to the Church: in which case the free coloni were to remain free and pay tribute to the Church as they would have done to the king if they had been 'coloni' on the terra regis.

After thus becoming 'free coloni' of the Church they might, if they chose, by a second act surrender their freedom and become servi of the Church, just as 'free coloni' on royal villas or on the terra regis might do under this edict.

This evidence relates, it will be remembered, to the district on the left bank of the Rhine, which so abounded with 'heims' and 'villas,' as well as to that portion of the 'Agri Decumates' which was included in the province of Germania Prima.

There is still clearer evidence for the district to the east of the 'Agri Decumates,' comprehended in the Roman province of Rhætia.

Rhætia, it will be remembered, was the province, in edicts relating to which the 'sordida munera' were most clearly defined. We have seen traces of some of these 'base services,' especially the boon-work and the 'angariæ,' in the St. Gall charters. Still clearer traces of them are found in the services described in the early 'Bavarian laws' of the seventh century. These laws, as has been seen, expressly allowed 'surrenders' by freemen of their property to the Church, and the services of the servi and coloni of the Church are described with remarkable clearness. [p325]

The section is headed—