Page:Bury J B The Cambridge Medieval History Vol 1 1911.djvu/641

Rh 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 (C. Just. . 66, ). 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 labour 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 (impokij), 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 every one 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 (C. Just. . 59, 8). 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 Hellenised population; and it is on such estates that the terms ^vrevciv, 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 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