Gorecki Greek, Roman, and Byzantine Studies 48 (2009) 135–154 © 2009 GRBS Constantine VII’s Peri ton stratioton Danuta M. Górecki In memory of Professor Paul Lemerle whose modesty derived from wisdom FTER several decades of exploring the history of the Byzantine rural community, it has become clear to me that the problem of stratiotic land needs to be in- corporated into these studies. Peasants’ property and shares of stratiotic land were territorially integrated under the juris- diction of the rural community and belonged to the same fiscal district. Many reasons exist to pursue this kind of study, but the strongest signal comes from Romanus Lecapenus. Troubled by the revival of aristocratic families during the ninth century and by their buying out of peasants’ and soldiers’ land, this emperor decided to curb their investments by the power of positive law. In his Novel of 922, he eloquently recapitulated the reasons that led him to prohibit the wealthy and powerful, the dynatoi, from acquiring land in the rural communities: We do not lay down these laws out of hatred or jealousy of the more powerful, but we command it out of good will and pro- tection of the [weak] and for the common salvation … For the habitation of the multitude shows the great profit of its employ- ment, the collective contribution of the taxes, the joint rendering of military services, which will be entirely lacking when the common people have perished.1 1 Zepos, Jus graecoromanum I 205–214; transl. C. Brand, Icon and Minaret: Sources of Byzantine and Islamic Civilization (Englewood Cliffs 1969) 83–84. I have replaced Brand’s “poor” with “weak” as interpreted by P. Lemerle, The Agrarian History of Byzantium from the Origins to the Twelfth Century (Galway 1979) 95–96, 98. See also Rosemary Morris, “The Powerful and the Poor in Tenth-Century Byzantium: Law and Reality,” P&P 73 (1976) 3–27, esp. 11–17, who makes it possible to reconstruct the social stratification of the A 136 CONSTANTINE VII’S PERI TON STRATIOTON In a 1989 paper on stratiotic land in the context of the Byz- antine rural community,2 I summarized the debate about the legal status of a stratiotes and stratiotic land, and the fiscal lia- bility of civilian and stratiotic members of the rural community. I also suggested a philanthropic aspect of Constantine VII’s agrarian policy which aimed to secure the economic prosperity of both groups. I challenged two conceptions current in the modern literature on the subject: the legal status of stratiotic land, and the interpretation of the term adoreia in Constantine’s Novel on stratiotic land. I also tried to comment on the co- operation between the civilian and military administrations of land with regard to their respective fiscal obligations. After the new edition of the Novels by Svoronos and Gounadiris in 1994, it is clear that my two theses and also my comments on the fiscal problem, based on material available in 1989, need to be revisited in the light of the scholarly environment created by that edition, its English translation by E. McGeer, my own re- study of the Macedonian novels, and P. Lemerle’s analysis of this subject.3 In this paper I seek first to define the legal status of stratiotic land on the basis of the language used by the legislator. Then I scrutinize the individual provisions concerning management of this land in order to combine them into one consistent legal entity (denoted as a “code” in modern legal terminology: agrar- ian code, family code, etc.). As it stands, those provisions are distributed among three different works of Constantine: the Novel, De administrando imperio, and De caerimoniis. In his time such a code would have provided indispensible help for the judiciary, for judicial practice, and the public at large. It would also serve to express the legislator’s effort to counteract sab- otage of his goals by self-interested pursuits on the part of the ___ poor and the wealthy on the basis of scrupulous interpretation of the Greek terms denoting their financial potential. 2 D. Górecki, “The Strateia of Constantine VII: The Legal Status, Admin- istration and Historical Background,” BZ 82 (1989) 157–176. 3 N. Svoronos, Les Novelles des empereurs macédoniens concernant la terre et les stratiotes, ed. P. Gounarides (Athens 1994); E. McGeer, The Land Legislation of the Macedonian Emperors (Toronto 2000); Lemerle, Agrarian History 114–141. DANUTA M. GÓRECKI 137 wealthy. For a modern historian, this code will reflect the unique ideas of Constantine VII for strengthening the military capacity of the state by elaborating and institutionalizing the concept of stratiotic land preserved in customary law. The historical background is best seen in John Haldon’s contributions. In 1993 he focused on three aspects:4 heritability of the strateia, which can be understood as a correlate of the Republican res extra comercium; the problem of a soldier’s main- tainence, such as income produced by the soldier himself, his family (oikos stratiotikos),5 and support of soldiers by the state organized mostly by the fisc; and protection of a soldier against both insolvency and outside abuses.6 Haldon commented on various sources, especially those studied by Oikonomides: they show a gradual transformation of the late Roman establish- ment from the sixth to the eleventh century, under the pressure of political and economic circumstances.7 The transformation included exempting soldiers from the heavy burden of corvees; and it is often repeated that no source from the eighth century or earlier suggests an obligation upon an oikos stratiotikos to support a military man. Instead, Haldon argued for an inver- sion of the stratiotic rights and duties during the tenth century: while originally a man’s right to serve in the army resulted in the duty to cover the expenses of his military service from his property, from the middle of the tenth century onwards, his right to hold a share of stratiotic land resulted in his duty to supply a soldier. Thus this process shifted the stratiotic ob- ligation from man to land. The practice of “commutation of personal service and the beginnings of the fiscalisation of the 4 J. F. Haldon, “Military Service, Military Lands, and the Status of Soldiers,” DOP 47 (1993) 1–89, with references especially to M. F. Hendy, Studies in the Byzantine Monetary Economy c. 300–1450 (Cambridge 1985), and to papers by N. Oikonomides. 5 Haldon, DOP 47 (1993) 1–89, and his Byzantium in the Seventh Century (Cambridge 1990) 245. 6 Haldon, Byzantium 244–245, very eloquently illustrates this difficulty. 7 Haldon, DOP 47 (1993) 5 and 42. See also N. Oikonomides, “Middle Byzantine Provincial Recruits: Salary and Armament,” in J. Duffy and J. Peradotto (eds.), Gonimos: Neoplatonic and Byzantine Studies presented to Leendert G. Westerink (Buffalo 1988) 121–136. 138 CONSTANTINE VII’S PERI TON STRATIOTON strateia into a tax” that followed this inversion led to confusion. This is reflected in the often contradictory legislation of the transition period.8 Constantine VII’s Νεαρὰ νομοθεσία περὶ τῶν στρατιωτῶν (dictavit Theodore Decapolites), of ca. 947–949,9 was not a work of a single stroke of the pen. The text of the Novel, as the emperor himself informs us, was interpolated with provisions of cus- tomary law. But still there were gaps. For instance, it is sur- prising that in this Novel, the first legislation on the matter of stratiotic land, Constantine omitted the fiscal liability of that land and its holder. Some of those gaps were filled by the emperor’s two other works, written at the time the Novel was promulgated. In De cerimoniis (2.49–50) he covered the matter of protecting a poor stratiotes from the fiscal consequences of in- solvency. In De administrando imperio (51–52) he set down the conditions of military settlement of prisoners of war which included fiscal and managerial privileges allowing a settler to establish himself as a solvent stratiotes.10 Some gaps nevertheless remained. In analyzing these works of Constantine, Lemerle had to face serious impediments. He stated that Constantine did not realize the complexity of integrating the system of a time “when custom was king” with his understanding of contempor- ary problems of the stratiotic service. Furthermore, the am- biguity of key terms and phrases in the emperor’s writings made it difficult for Lemerle to establish their linguistic and substantive meaning. Finally, as Lemerle observed, “awkward divisions and arrangements of the matter are known to be frequent in compilations such as this.” But despite these diffi- culties, many aspects of the subject discussed in those writings emerge clearly from Lemerle’s painstaking linguistic and logical 8 J. F. Haldon, Recruitment and Conscription in the Byzantine Army c. 550–950: a Study on the Origins of the Stratiotika Ktemata (SBWien 357 [1979]) 18 (quotation), 41–65; discussed in Górecki, BZ 82 (1989) 163–164. 9 Zepos I 222–226. Some editions of this text give slightly differing dates. 10 De administrando imperio I, ed. G. Moravcsik, transl. R. J. H. Jenkins (Washington 1967); Constantini Porphyrogeniti imperatoris de cerimoniis aulae byzan- tinae, ed. J. Reiske (Bonn 1829–1830). DANUTA M. GÓRECKI 139 scrutiny (Agrarian History 131–138). Lemerle has identified this material as important elements of Byzantine stratiotic law and exposed the whole of that law to the eyes of socio-economic historians. However, it must not be forgotten that these laws arose from the initial efforts of Romanus Lecapenus, who first turned his attention to stratiotic land during the period still represented by custom. But despite some occasional claims that it may have been Romanus Leca- penus himself who promulgated the Novel on the stratiotai, Lemerle considers Constantine VII’s authorship unquestion- able. In this Novel, Constantine upgraded the strateia from a custom to an institution of positive law. The Codification of Constantine’s Law on Stratiotic Land 1. The legal status of stratiotic land In reading Constantine’s Novel on stratiotic land, it is diffi- cult not to associate its goals and its methods of implementation with those of the ager publicus populi Romani of Republican Rome. Both the Republican ager publicus and Constantine’s stratiotic land served the common good of the nation by sup- porting fighting soldiers and landless peasants.11 Ager publicus and stratiotic land were therefore excluded from commercial traffic: one could not acquire ownership either by contract of sale or by the lapse of time (prescription). In short, these lands could be an object of possession only. From Republican times until the rule of Constantine VII, politicians, jurists, and lawgivers endeavored without success to protect ager publicus populi Romani from abuse by private inter- ests. Already in the post-classical era, their efforts were im- 11 Max Weber on Law in Economy and Society (Cambridge [Mass.] 1954) 150; also his General Economic History (New York 1966) 242–243: “The entire policy of antiquity was directed toward the prevention of such proletarii … a policy directed to maintaining the κλῆρος, the fundus, on which a man could live and fully equip himself as a soldier. The main aim was to guard against weakening the military power of the community. Hence the great reforms of the Gracchi must absolutely not be understood in the modern sense as measures pertaining to a class struggle; their objective is purely military; they represent the last attempt to maintain the citizen army and avoid the substitution of mercenaries.” 140 CONSTANTINE VII’S PERI TON STRATIOTON peded by the promulgation of the Constitutio Antoniniana of 212 whereby Caracalla granted Roman citizenship to the popula- tion of the provinces. The subsequent surge and rapid spread of vulgar law, during post-classical times, became a menace to the integrity of the official Roman legal system. Mitteis claims that the vulgar law was a “spoiled” Roman law resulting from the general dec- adence of Roman jurisprudence and lack of well educated jurists.12 Levy interprets the vulgar law as an expression of a popular need to replace the stiff tenor of classical legal norms with simple terminology.13 Law and customs of peoples in- habiting the Roman provinces found their way into official legislation through judicial verdicts, which eventually became part of official law. The continuing accumulation of such ver- dicts, being in conflict with the philosophy and objectives of the official legal system, gradually distorted and degraded that sys- tem. Ultimately, Theodosius II undertook the task of cleansing the official legal system of the accretions of vulgar law (purgatio legum).14 Nevertheless both the Codex Theodosianus and patristic literature continued to confuse possession with ownership. It is common knowledge that in his legal system, Justinian strove to achieve the classical clarity of dominium and possessio, yet because of the complex definition of classical Roman possessio, he failed to achieve a precise distinction between those two institutions. Only the bureaucrats of the Byzantine fiscal administration successfully accomplished what Justinian’s theoreticians failed to do. Finally, the “purification of old law” (anakatharsis ton palaion nomon) initiated by Basil I and continued by Leo VI (the grandfather and the father of Constantine VII) created, not a classical, but a workable Byzantine legal system, known as the 12 L. Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen der römischen Kaiserreichs (Leipzig 1891) 85–89. 13 E. Levy, West Roman Vulgar Law: the Law of Property (Philadelphia 1951) 1–2 n.3, 4–6 n.12. 14 W. E. Voss, Recht und Rhetorik in den Kaisergesetzen der Spätantike: eine Unter- suchung zum nachklassischen Kauf- und Übereignungsrecht (Frankfurt am Main 1982) 70–72. DANUTA M. GÓRECKI 141 Basilika.15 In the Basilika, ownership (dominium) and possession (possessio) became two distinct institutions. This distinction was also evident in the Macedonian novels on preemption. Among those novels, only Constantine’s on the strateia does not mention ownership and possession sensu stricto, concentrat- ing exclusively on res extra comercium without indicating its legal status. Constantine only mentions the private land of a stratiotes that exceeds the standard size of his stratiotic share. However, the existence of res extra comercium indicates the existence of ownership. Ownership combines two elements: possession (pos- sessio corpore) and proprietary rights to the object (possessio lege). If the owner loses possession of his object by contract or theft, he loses possessio corpore. Possessio corpore then passes to the person who acquired physical control over the object. In such a case, however, the owner retains legal control of this object. This situation is comprehensively discussed in the introductory parts of Constantine’s Novel (Zepos I 224). While this terminology agrees with its classical Roman prototype, Constantine’s con- cept of a stratiotes’ private land shows significant deviation from that prototype. In his concept, this land is nothing more than a warranty of the stratiotes’ fulfillment of his primary obligations: payment of land taxes and maintenance of the monetary value of his stratiotic share. In another part of the Novel, he confirms the existence of ownership of stratiotic land when he grants the forty-year prescription to a stratiotes who bona fide occupied a piece of that land. In this way, Constantine upgraded the status of stratiotic land to the group of the most privileged land owners: the state, the fisc, and the church. D. Daube warned that “[f]or several decades … Romanists have done their best to demonstrate … that even the mature Roman ownership must be interpreted against a background of all sorts of extra-legal restraints such as tradition, ethics, state 15 J. A. B. Morteuil, Histoire du droit byzantin, ou du droit romain dans l’empire d’orient (Paris 1843–1846) II 19–72; P. Pieler, “Ἀνακάθαρσις τῶν παλαιῶν νόμων und makedonische Renaissance,” Subseciva Groningana 3 (1989) 61–77, and “Byzantinische Rechtsliteratur,” in H. Hunger, Die hochsprachliche profane Literatur der Byzantiner II (Munich 1978) 343–480, at 354–355 n.48. 142 CONSTANTINE VII’S PERI TON STRATIOTON interest.”16 Daube’s contention is also reflected in Greek politi- cal philosophy. In case of debt, the laws of the Greek city-state gave a creditor “a right to levy execution against not only the common property of the city as a whole, but also against the private property of its citizens”; the city “had no hesitation in times of stress in treating their property as its own.”17 Since Constantine states that his Novel includes elements of cus- tomary law, we can easily recognize the roots of the two usages described by Daube and Jones. Let us assume that subjugation of a landowner’s private interests to the state permeated into Roman customary law of this time either directly from Re- publican law or indirectly, from the Greek peoples of the em- pire, via vulgar law. Whichever source of influence we choose, we can detect the echo of the ager publicus populi Romani and res extra comercium (Zepos I 224; 225 line 29). 2. Who was a stratiotes? After lengthy debate over the meaning of the term stratiotes, Byzantine historians have come to agree that in Constantine’s Novel, this term applied not only to a person who actually served in the army and took part in campaigns, but also to one who held a share of stratiotic land and produced income to equip and maintain a fighting soldier.18 3. The making of a stratiotes A civilian member of the rural community could acquire stratiotic status by two kinds of transactions, described re- spectively by the Novel and by Constantine’s De administrando imperio 51–52. According to the Novel, an owner of private land becomes a stratiotes when he converts his property into a new 16 D. Daube, “Fashions and Idiosyncracies in the Exposition of Roman Law of Property,” in A. Parel and T. Flanagan (eds.), Theories of Property (Waterloo 1979) 35–60, at 37. 17 J. W. Jones, The Law and Legal Theory of the Greeks (Oxford 1956) 155– 156. 18 G. Ostrogorsky, History of Byzantine State (New Brunswick 1989) 42–43, 95–96, 133–134; Lemerle, Agrarian History 119–120, 124–149; Haldon, Re- cruitment 4–65; W. T. Treadgold, “The Military Lands and the Imperial Estates in the Middle Byzantine Empire,” Harvard Ukrainian Studies 7 (1983) 619–631, at 625–626. DANUTA M. GÓRECKI 143 share of stratiotic land by officially recording it in the stratiotic land register. That act turned the previous owner of the newly- registered land into a holder of military property with the status of stratiotes, subject to the privileges, rights, and duties of his new status. The other transaction reflected the policy of repopulating existing shares of stratiotic land whose holders had died, been killed in war, or fled. Such assignments of abandoned stratiotic shares could be applied to a group of persons or to individuals. Constantine’s De caerimoniis (p.696.1–9 Reiske) describes the fate of Saracen prisoners of war who received the fiscal and managerial status of stratiotai after their conversion to Christian- ity and marriage into local stratiotic households. The Saracen settlers were granted numerous privileges for a number of years, on condition that under their tenure the productivity of the deserted land was restored. The chapter ends with a pro- vision that the settlers’ land cannot be sold either by a stratiotes or by the fisc. The ban on alienating the stratiotes’ land derives from the legislator’s optimistic assumption that all these priv- ileges would result in establishing the settler as a solvent holder of the strateia. Since the settlement of the Saracens took place during the times of Leo VI and Romanus Lecapenus, these provisions still represented customary law. It is interesting to note that they were also incorporated into Constantine VII’s Novel as it concerns the adoreia (Zepos I 224, lines 23–26). The Novel mentions the adoreia in the context of explaining which categories of persons are entitled to be called stratiotai (lines 20– 23): “we prescribe that not only should those who are assigned to the sacred legions … be regarded as stratiotai but also those who, appearing (economically) lacking …, have rightfully received the ἀδωρεία” (transl. Lemerle 119). In his search for the meaning of the term adoreia, Lemerle found his explanation in the Peira:19 this source, “having de- fined the fiscal property or the state property (δημόσια), lacon- ically adds ὁμοίως καὶ τὰ κλάσματα καὶ τὰ ἐξ ἀδοριῶν.” It is important to emphasize that in the context of the Peira, Le- merle insightfully interpreted the term adoreia as “abandoned 19 Peira 36.2 (Zepos IV 143). 144 CONSTANTINE VII’S PERI TON STRATIOTON military land,” whose legal status was analogous to klasma (state property). Nevertheless he insisted that in Constantine’s Novel on stratiotic land the adoreia denoted an “exemption from the [financial] dues for which the holder of the strateia is formally liable.”20 In my 1989 article, I challenged Lemerle’s interpretation of the term adoreia as ἀδορεύονται (Caer. 696.3), claiming instead that it denoted a share of abandoned stratiotic land. In the con- text of the Novel’s provision quoted above, I concluded that, in order to secure the productivity of abandoned stratiotic land, a share of that land could be granted to a destitute civilian peasant by an official administrative decision. I have offered some arguments supporting my view in pre- vious articles. However, the later version of Constantine’s Novel, published by Svoronos, now represents the most recent and so far the strongest proof of my interpretation. This version modifies the content of the adoreia provision by shifting the point of its impact from persons to land:21 We prescribe that not only the lands of persons enrolled in the sacred legions of the stratiotai are deemed to be military, but also the lands of persons who, found to be in penury through some cruel stroke of fortune, have after legal decision received an exemption from their military obligations (ἀδωρείας ἐνδίκως τε- τείχασι). Regrettably it is necessary to preface further comment with a correction of an error (typographical?) in McGeer's translation of adoreia. While Lemerle left this in its singular Greek form, McGeer uses the plural, “exemption from military obligations.” As there were only two such obligations, to support a soldier and to serve in the army (if too poor to support a soldier), the plural deprives the paragraph of any sense. If a stratiotes was exempted from both of them, he would completely lose, not acquire, stratiotic status. The shift in focus from persons to land, which had been the core of Constantine VII’s philosophy of the strateia, is lucidly 20 Lemerle, Agrarian History 119–120 n.2. 21 Svoronos, Les Novelles 121–122; transl. McGeer, Land Legislation section 9.1, p.74. DANUTA M. GÓRECKI 145 reflected in this later version. Without the slightest change in the legal content of the older text, it more precisely expounds the legislator’s concept of the adoreia: restoring the prosperity of a destitute civilian peasant by promoting him to the rank of a stratiotes, and at the same time enhancing the productivity of a share of abandoned stratiotic land. The upgrading of a desti- tute peasant to the status of stratiotes was neither an act of the emperor’s grace nor an attempt to gain popularity. This new wording by no means changed the provision that the principal duty of a holder of stratiotic land was to produce income suffi- cient to maintain and equip a soldier. It did reflect the Repub- lican Roman concept of land in the service of the public good. Nevertheless there also were practical reasons why a civilian peasant who had received a share of stratiotic land also had to receive the stratiotic status. While land of a civilian community member was burdened only with the obligation to produce income to pay his land taxes, the holder of stratiotic land was burdened with two ob- ligations: (1) to pay his land taxes and maintain a soldier; (2) in case of insolvency, to serve in the army. With respect to a civilian landowner, the alternative of military service in case of insolvency did not exist. Consequently, if a share of stratiotic land was to be held by a civilian member of the rural com- munity, the institutional stratiotic obligation would remain “abandoned,” whether or not the civilian taxpayer was solvent. In light of these observations, it becomes clear why a civilian peasant who received a piece of the adoreia for permanent cultivation had to be simultaneously promoted to the status of stratiotes.22 4. Duties and protection of stratiotai and stratiotic land Constantine’s stratiotic law includes some general rules, aimed at all stratiotai, that were to protect the stratiotic land against disintegration. The first declared stratiotic land as res extra comercium whose sale was prohibited by the norm of pos- itive law. The second specified certain politically influential and 22 D. Górecki, “Fiscal Control of Unproductive Land in Tenth Century Byzantium: Policies and Politics,” Fontes Minores 10 (1998) 239–260, at 260, and BZ 82 (1989) 171. 146 CONSTANTINE VII’S PERI TON STRATIOTON intimidating dignitaries who are forbidden to purchase any stratiotic land in rural communities. The third endowed stra- tiotic land with the forty-year prescription (ownership after un- challenged possession for forty years), a privilege heretofore reserved for state, fiscal, and ecclesiastic land. Furthermore, the stratiotic law also contained provisions ad- dressed to three distinct groups of stratiotai determined by their social and economic standing: a stratiotes of good economic status, impoverished stratiotai, and poor stratiotai who lost their land because of abuse by dynatoi. (a) A stratiotes of sound economic condition, if he failed to ful- fill his obligations from his stratiotic land, had to fulfill them with income derived from any private land that he owned. Furthermore, he had to preserve the quality of his stratiotic share. If a sale or exchange jeopardized the value of the share, it had to be corrected or cancelled. (b) With respect to poor stratiotai, De caerimoniis offers two paragraphs. The first provides the destitute stratiotes with the help of a “contributor” (syndotes), in order to restore produc- tivity to his land. The second provides that in case of the stra- tiotes’ ultimate penury, his financial obligation was replaced by stratiotic service. In this case the syndotai had also to take over the financial obligations of the strateia under the supervision of the stratiotic administration. These two paragraphs did not represent norms of positive law. They sound like excerpts from stratiotic administrative regulations simplified for practical use. Regrettably, these two provisions were not endowed with any procedural measures. Moreover, the provisions conflate four different legal issues: the duties of a stratiotes, the rights of a stratiotes, the protection of a stratiotes, and the protection of stratiotic land. When we consider the two paragraphs from the point of view of stratiotic duties, we at once become aware of difficulties. For example, was it a stratiotes’ duty or his right to ask for help in case of insolvency? Was it his duty or his right to report that a helper (syndotes) is inefficient? The only conclusion that seems certain is that the De caerimoniis did not impose any new duties upon the poor stratiotai. It was only the stratiotic administration that was burdened with those duties. (c) With respect to the third group, Constantine in his Novel DANUTA M. GÓRECKI 147 stated that under customary law the poor stratiotai who lost their land because of abuse by dynatoi were treated in a very cruel and unjust manner. They had been deprived of their stratiotic share, degraded to the status of rural worker or slave, and in many cases—if strong and healthy—incorporated into the private armies of the dynatoi. So the emperor became an un- compromising defender of the abused stratiotai, and sought to punish severely such mistreatment as a serious crime. The pen- alties he imposed on dynatoi guilty of those crimes were harsh: unconditional return, without payment, of stolen lands to their legitimate holders, financial reimbursement of the fisc for lost tax revenues, and additional financial assistance to the re- covering stratiotai. Since this behavior was a crime, the return to the status quo ante most likely demanded a judicial verdict. But in addition to these criminal provisions, Constantine also demanded that any exchange of stratiotic land between stratiotai of equal economic and social status must be to the benefit, or at least not to the detriment, of the poorer one. Oversight of this type of trans- action must have been the prerogative of the stratiotic admin- istration. 5. Syndotai and syntelestai: selection and liability This capitulum seeks to make clear the legislator’s efforts to integrate the administration of stratiotic land and the admini- stration of the rural community in order to increase income from the state’s land. Two basic principles for addressing this problem are found in De caerimoniis. The stratiotic administra- tion, first, offers a prescription for implementing this fiscal objective; however, it says what to do, but fails to suggest how to do it. It is the peasant community that offers an elaborate system to achieve this objective, based on millennium-long ex- perience of the Ptolemaic, Roman, and Byzantine institution of the rural community with its methods of preserving and man- aging the land. De caerimoniis gives a list of persons authorized to inherit stratiotic land. This list also served as a guideline for designat- ing syndotai for poor stratiotai. The process of choosing a syndotes began with an official evaluation of the extent of help needed by the poor stratiotes, and by the potential of the candidate, 148 CONSTANTINE VII’S PERI TON STRATIOTON secured by his poros, to supply what was required. Upon con- sideration, it makes most sense to conclude that the assignment of a syndotes was, mutatis mutandis, a liturgy. In Roman Egypt the liturgy was a compulsory service assigned for a definite time, which could be prolonged as needed, without pay, but with personal liability on the part of the liturgist for failure to dis- charge the service.23 Persons without poros did exist and their service would be entirely in the form of labor,24 which in some cases might be all that was needed. Lemerle (135) suggested that if the poor stratiotes who was sent to the ranks of the apelatai was a member of an oikos stra- tiotikos, his family was to perform the duty of syndotes. However, Lemerle declined to analyze this problem further because, as he stated, there is a total lack of relevant sources to resolve it. If the syndotes was a civilian peasant, most of the foregoing applied. One exception was that the process of selecting a can- didate would have to involve representatives of both the stra- tiotic administration and the civilian. Another exception was the fact that all liabilities of an insolvent civilian syndotes were covered ex lege by his rural community. Constantine’s stratiotic law addressed only land under cultivation. There was no provision in the Novel for how abandoned stratiotic land was to be handled in terms of re- storing its productivity. This kind of land, as Lemerle states, “had experienced the same crisis as civil property, no doubt for the same reason, and with the same abuses” (124). The Novel’s only mention of abandoned stratiotic land is a very special case (Zepos I 225 lines 1–28): it addresses a situation in which this type of land had been extorted from its holders by fraudulent dynatoi, and subsequently abandoned. The Novel, as sum- marized by Lemerle (121–122), states: The emperor decides that if there are heirs (of the stratiotes) in an ascending, descending or collateral line to the sixth degree, they will be authorised to lay claim to the properties wrongly 23 N. Lewis, Inventory of Compulsory Service in Ptolemaic and Roman Egypt (New Haven 1968) 1. 24 J. David Thomas, “Compulsory Services in Roman Egypt,” in Das römisch-byzantinische Ägypten (Mainz am Rhein 1983) 35–39, at 36. DANUTA M. GÓRECKI 149 alienated by the stratiotes or usurped by the powerful; if not, other categories of persons having a claim will be called on as far as the poverty-stricken (ἀπορώτεροι) stratiotes of the same juris- diction (συντελεσταί) who can thus reestablish themselves, or even, in default of these, to the πολιτικοὶ συντελεσταί, that is to say the civilians of the same jurisdiction, for a drop in the revenue of the census must be avoided. Certainly, Constantine’s intention was to restore this stratiotic land to its previous legitimate holder or his successors. In ad- dition, he states an equally important goal recommended by the fiscal authorities, namely to resume collecting taxes on land which had not been paid for some unspecified period of time.25 Lemerle’s scrupulous inquiry into the meaning of the term syntelestai was instrumental in reconstructing the civilian in- volvement in the support of the stratiotes.26 To make progress on this subject, we need to remember the history of the rural community. To begin with Alexander’s conquest of the east, as a young and idealistic disciple of Aristotle, he intended to organize his empire as a network of city-states based on prin- ciples of democracy and equity of socio-economic oppor- tunities. His untimely death left the empire divided among three of his generals. Ptolemy in Egypt based his territorial administration on the institution of the kome (conventionally but not very precisely called rural community by Byzantinists) in- herited from the pharaohs and controlled by a Greek ad- ministrative apparatus. In keeping with pharaonic tradition, Ptolemy as king became sole owner of land cultivated by Egyptian peasants under the supervision of Greek officials who were liable for collection of the royal income from the land. The Ptolemies abandoned the democratic ideas of Alexander 25 Concerning the fiscal liabilities for abandoned stratiotic land, I see that I was incorrect to state (BZ 82 [1989] 169) that such land was subjected to the fiscal liability of the civilian community. This was by no means a rule— it could happen only in exceptional cases such as a request by the fiscal ad- ministration. 26 Lemerle, Agrarian History 121–122; the term is also addressed by McGeer, Land Legislation 27, and Hélène Glykatzi Ahrweiler, “Recherches sur l’administration de l’empire byzantin aux IXe–XIe siècles,” BCH 84 (1960) 1–111, at 21. 150 CONSTANTINE VII’S PERI TON STRATIOTON and turned the land into a “money-making machine.”27 This situation lasted to the rule of Diocletian, who endowed the kome with a board of elders who took over those liabilities from the royal officials.28 But even if Diocletian also endowed rural com- munities with some rights to land, the process of change that began to upgrade the legal status of the community took place only under Constantine, when the communities acquired pos- session of lands situated in their territory, and the community members acquired possession of the shares of land that they formerly occupied as tenants. Not much later, according to the imperial constitutions of the fourth century, both the rural communities and the former tenants were granted ownership of that land, and became collectively liable for their fiscal duties.29 The changes in the legal status of the rural community made it necessary to modify the content of the law concerning the peasant’s landed property. The Roman institution of res derelicta was abandoned because, being nobody’s property, the aban- doned land became not taxable. Thus, in order to secure the fiscal solvency of the rural community as a whole, the pro- prietary rights of a peasant who left his land were extended to thirty years from the day of abandonment (derelictio). Con- sequently, the taxes on the land deserted by its owner were ex lege covered by the collective liability of community members. So (coming back to Lemerle’s comment on abandoned stra- tiotic land) it is necessary to recall that all abandoned land, whether stratiotic or civilian, had the same economic status: both were unproductive. The difference between the two derived from their different legal status. Abandoned private land continued to be property of the absent owner for the next 27 W. W. Tarn, Hellenistic Civilization3 (London 1952) 156. 28 A. Swiderek, “The Land Register of the Phernouphitou Toparchy in the Mendesian Nome,” JJP 16 (1971) 31–44. See also D. Górecki, “The Rural Community of the Nomos Georgikos: Governing Body (art. 81) and Fis- cal Liability (art. 18), “ Byzantinoslavica 62 (2004) 79–94. 29 A. C. Johnson and L. C. West, Byzantine Egypt: Economic Studies (Prince- ton 1949) 20, 94–95: confusing and conflicting data about the legal status of lands granted in 322 to the community of Theadelphia and to the residents of Hermopolis. DANUTA M. GÓRECKI 151 thirty years, during which no transaction concerning this land could conflict with the absent owner’s proprietary rights. Abandoned stratiotic land could be immediately allotted by the stratiotic administration to another stratiotes. It is interesting that the contemporary taxation treatises do contain many pro- visions on how to reactivate productivity on abandoned private peasant land without violating his proprietary rights.30 Yet there is no trace in the Novel of such ingenuity concerning re- vitalization of stratiotic land, except for such singular cases as the provisions mentioned above concerning employment of the syntelestai, the adoreia, and military settlement of the Saracens. Constantine VII’s Novel on stratiotic land makes it clear that during that era the Byzantine rural community was a juristic person of public law and the basic unit of the Byzantine fiscal system. This situation reflected a horizontal and a vertical organization of the fiscal administration: Horizontal organi- zation bound together individual rural communities within an administrative territory; vertical organization subsumed all the communities together under the authority of the fiscal district. This organizational duality is very clearly indicated in all the sources of Constantine’s stratiotic law: in case of absence of stratiotic candidates for the functions of syndotai and syntelestai, those functions and liabilities can be vested in civilian members of another rural community belonging to the same fiscal district. It must be empasized that a global sum of land taxes was imposed on the fiscal district as a whole, and only then divided 30 The Taxation Treatise, also called the Marcian Code, ed. F. Dölger, Beiträge zur Geschichte des byzantinischen Finanzverwaltung (Leipzig 1927) 119– 155; the Zavorda Treatise, ed. J. Karayannopoulos, “Fragmente aus dem Vademecum eines byzantinischen Finanzbeamten,” Polychronion: Festschrift Franz Dölger (Heidelberg 1966) 318–334. There is disagreement about when these treatises were issued. M. Kaplan, Les hommes et la terre à Byzance du VIe au XIe siècle (Paris 1992), esp. 388–391, places the Taxation Treatise just before Basil I (dies a quo), which I accept without reservation. Others prefer 11th/12th century. I am inclined to believe that the Zavorda Treatise appeared later than the Taxation Treatise. This problem will be discussed in my paper in preparation, “The Saga of Macedonian Legislation on Pre- scription and Preemption: De lege lata and De lege ferenda.” 152 CONSTANTINE VII’S PERI TON STRATIOTON among the individual communities. Therefore a member of one community could discharge his obligations in another community as long as the fiscal obligations belonged to the same fiscal district. On these administrative grounds, the Novel makes clear that civilian syndotai or syntelestai must belong to the same fiscal district as the stratiotai whom they served. This was the strongest point in the Novel regarding the coexistence of stratiotic and civilian administration of rural communities. Beyond this we face a most damaging gap. For instance: Does the Novel intend that shares of stratiotic land situated in the civilian community are also covered by its collective liability? How is one to categorize the situation when a single person owned both stratiotic and private land? Would article 18 of the Nomos Georgikos apply to his private land while at the same time the use of syndotai had to be applied to his stratiotic land? The one sensible answer that emerges in this situation would be the thematic structure of the community, where civilian and stratiotic administration was combined in the hands of a stra- tegos. But the sources on which Constantine based his stratiotic law fail to mention a theme or a strategos. Therefore, the dual administrative structure is the only cogent point for under- standing the coexistence of civilian and stratiotic modes of producing income from land. Conclusion It has been necessary to use the term “stratiotic” instead of “military” in this article, with respect to both land and men. “Military” is a much broader term, and it is associated mostly with soldiers serving in “sacred legions” (Zepos I 224 line 21). While every man tilling a share of stratiotic land was military in the sense of working for the army, not every military man had also to be a stratiotes in this sense. He could be supported from many other sources. The opening provisions of the Novel es- tablish the costs of maintaining a fighting soldier, but the rest of the Novel speaks only of a man who by tilling a piece of stratiotic land produces the income to cover these expenses. In the Novel itself this distinction between the military and strati- otic status is indicated, but spelled out very imprecisely, so that it is no surprise that socio-economic historians have not come DANUTA M. GÓRECKI 153 to agreement on the meaning of the word stratiotes as used in the Novel. Lemerle defined the strateia as a service; so did Constantine VII. In his law, the emperor expressed his conviction that the strateia is a service for the common good. This service, which was binding for life and hereditary, demanded individual sacri- fices in maintaining the quality of the military share, as well as in preventing other stratiotai from becoming insolvent. Un- fortunately, his legislative pronouncements were not backed up by any executive provisions. If the emperor had not neglected to state these provisions to the judiciary, this might have safe- guarded the implementation of his will. As it was, his plans, as delineated in the Novel, were de- tached from political reality. Already Leo VI’s Taktikon fore- shadowed the blurring of the distinction between soldier and peasant, while Constantine’s own De administrando imperio fore- shadowed the progressive fiscalization of the strateia. This fiscalization came to its climax following the reforms of Ni- cephorus Phocas, who was forced to increase the standard value of stratiotic land from four to twelve pounds of gold.31 Lemerle reported these developments in the context of Con- stantine’s ill-advised Novel. Lemerle’s thorough account il- lustrated why administrative solutions to the wide range of problems addressed in the Novel could be decided only on a case-by-case basis.32 As for the emperor’s character, was Constantine VII a despotic ruler of Justinianic type (quod principi placuit legis habet vigorem, Dig. 1.4.1), who violated at his will the individual rights of his subjects established by property law? Or was he a benevolent reformer, who intended to combine his national military goals with his socio-economic concern for the rural populace? One can speculate that Constantine may have de- liberately omitted more general executive backing for his laws. 31 For details of this decision see D. Górecki, “Prescription in the Macedonian Novels on Pre-emption,” Byzantinoslavica 58 (1997) 113–130, at 126–129, where I contest Svoronos’ thesis that Basil II abolished Con- stantine VII’s forty-year prescription on stratiotic land. 32 So Lemerle, Agrarian History 126–131. 154 CONSTANTINE VII’S PERI TON STRATIOTON In keeping with his utopian expectations, he may have believed that the local administration of stratiotic land would, in con- flicting cases, make equitable decisions in the spirit of the com- mon good. October, 2008 The University of Illinois