The English Village Community / Examined in its Relations to the Manorial and Tribal Systems and to the Common or Open Field System of Husbandry; An Essay in Economic History (Reprinted from the Fourth Edition)

by Frederic Seebohm

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?

The rule of single succession to a servile holding.

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 later coloni 'usufructuarii.'

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.

Tenants on public lands in theory 'usufructuarii.'

Probable prevalence of the rule of single succession.

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.

The Romans adapted themselves to existing usages.

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.

Management of tithe lands. Modern Eastern example.

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 Syrian code of fifth century.

The Roman province of Syria is peculiarly [p312] interesting, because the Roman code[460] 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.

The 'Pflicht-theil' in Syria and in Bavaria of Roman origin.

Sir Henry S. Maine[461] 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 Testament[468] 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]

Land system in Palestine.

Land tenure in Palestine is of three kinds:—

I. Ard miri,[470] or taxed Crown land.

In this class are included nearly all the large and fruitful plains like those of Jaffa, Ramleh, and Esdraelon. These lands are leased by the Government to various individuals, or sometimes to a whole village. The lessee pays a tenth of the produce of the soil for his right of cultivation. Miri land, therefore, cannot be sold by the lessee, nor has he the power to transfer it; he merely possesses the right of cultivation for a given time, and this only holds good during the lifetime of the lessee. In the event of his death, the contract he has made becomes null and void, even though its term be not expired.

II. Ard wakûf, or glebe-land. . . .

III. Ard mulk, or freehold, is chiefly composed of small pieces of ground in the neighbourhood of the villages, such as fig and olive plantations, gardens, and vineyards. . . .

Tithe lands let to villages, and worked under the open-field system.

It has been already mentioned that by far the greater part of the cultivated land is not private, but Government property, either miri or wakûf, and that the cultivator is merely the holder. Each district has certain tracts of such lands, and after the rains they are let to the different inhabitants in separate plots. The division is decided by lottery. Herr Schick has given an account of the manner in which this lottery takes place. All those who are desirous of land assemble in the sāha (an open place generally in front of the inns). The Imam, or khatib, who is writer, accountant, and general archivist to the whole village, presides over this meeting. The would-be cultivators notify how many ploughs they can muster. If a man has only a half-share in one, he joins another man with a like share. Then the whole number is divided into classes. Supposing the total number of ploughs to be forty, these would be divided into four classes of ten, and each class would choose a Sheikh to represent them. The land of course varies in quality, and this division into classes makes the distribution simpler. Say there are four classes, the land is divided into four equal portions, so that each class may have good as well as bad. When the Sheikhs have agreed that the division is fair, the lots are drawn. Each of the Sheikhs puts some little thing into the khatib's bag. Then the khatib calls out the name of one of the divisions, and some passing child is [p315] made to draw out one of the things from the bag, and to whichever Sheikh it belongs, to this class belongs the division named by the khatib. This decided, the Sheikhs have to determine the individual distribution of the land. In the case of ten ploughs to a class, they do not each receive a tenth piece of the whole, but, in order to make it as fair as possible, the land is divided into strips, so that each portion consists of a collection of strips in different parts of the village lands. The boundaries are marked by furrows or stones, and to move a neighbour's landmark is still accounted an 'accursed deed,' as in the days of ancient Israel (Deut. xix. 4). . . .

The measure by which the Fellahin divide their land is the feddân. It is decided by the amount which a man with a yoke of oxen can plough per day, and is therefore a most uncertain measure.

Was it so on the Roman tithe lands?

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. Maine[472] 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.