Bill Long 11/14/04
Listening to Law and History
Though my theological reading of precarious exposed some fault lines in the term, the historical and legal meaning is pretty clear, even if there are nuances to it and if it is difficult to show in precisely which way the term precarious made the journey from the Roman to the common law.
The Legal Nuances of Precarious
The most popular way precarious was used in law was to describe an interest in land. A person who had a precarious tenure was one whose tenure, or holding, in the land was at the pleasure of another. "His holding was, in the language of the Roman lawyers, 'precarious,' that is, upon his request to the owner, and with that owner's leave." Simple enough.
Two other legal significations of the term also can be found. First, in a usage the OED calls "obsolete," it might be used to describe a kind of contract in medieval French civil and canon law. "Paolo [the Roman jurist Paulus] saith, that the Contract called the Precary brought great Riches to the Churches...[It] consisted in a Donation that particular persons made of their Goods to the Churches. They afterwards obtained of the same Churches, by Letters which they called precarious or precatorious Letters, the same Estates again, to enjoy them by a kind of Emphyteotick Security, i.e., to improve them."
Oops. I think I need a little detour here to explain a few things from that definition. The emphasis here is on a legal transaction, where donors were permitted use and enjoyment of lands formerly owned. They were to enjoy them by a kind of "Emphyteotick Security." This is not the place to go into a complete history of emphyteusis or its related spellings, of which emphyteotick is one. Suffice it to say that it is derived from the Greek word meaning "to implant" or "an implantation," and it is one of a family legal terms used to describe a kind of tenure or interest in land less than ownership or a life estate.
The four terms that come to mind to describe these interests are usufructus, usus, servitude and emphyteusis. Usufructus is an interest allowing both use and fruit of use (such as cultivating fruit trees or harvesting crops); usus is mere "use" of a property (such as having a room to stay); a servitude is a privilege of use without tangible benefit (such as a the privilege of using a right of way or an easement) and emphyteusis is, as it were, usufructus as applied to real property, with the added expectation or privilege to improve. That is, an emphyteutic lease would not only permit a person to lodge in a place but would allow, or expect, him to make improvements to it.
The third legal usage is in relation to feudal law. In his 1670 law dictionary, Blount defines Precariae as "Days Works, which the Tenants of some Mannors are bound to give the Lord in Harvest..corruptly called Bind days, for Biden days." An 1883 author calles them "boon-days, sometimes called bene works." These are "special or extra services which the lord has a right to require." Why these days are called a precariae is not altogether certain unless by not doing the work one could get thrown off the land--i.e., one's tenure would be precarious. Though the word is supposed to be obsolete, I think that there are lots of "bind days" one must observe in life in order not to be thrown out of people's good graces. When seeing a husband raking the leaves or cleaning out his gutters, I smile inwardly, thinking that he is fulfilling his precariae.
The historical significance of precarious takes us back to the origins of feudalism. It is futile in a brief essay to limn the contours of feudalism, but a few things can be said. One of the indicia of breakup of the Roman Empire in the 4th and 5th centuries was the collapse of the cities and the shift of the locus of power to large landed estates. These estates were almost jurisdictions in an of themselves, and poor people or those with limited holdings were compelled to place themselves under the protection of their powerful neighbors.* This placing under patronage was called patrocinium. The "little man" would
[*The historian in me almost screams when I speak in such generalities. Of course what I would like to know is how many estates at the beginning of the 5th century there were, in which areas of the Roman Empire they were, how they were arranged, how large they were, how the central state related to them, how the Germanic conquerors, beginning with Alaric and others in the beginning of the 5th century, related to these estates and their holders--did they incorporate them, fight them, make truces with them, etc?-- and tons of other questions. Maybe some day....]
transfer title of the land to the patron, who in turn would allow the little man the usufruct of the land. Through this method the patrons assembled very large estates, which were too large for them to cultivate. Poor people, with no land, would often make a request (precarium) to the land owner for use of some land. As Munro says in his history of the Middle Ages, "Usually there was no payment demanded, but on the other hand the grant could be terminated at any moment when the owner desired, so the user had a precarious tenure." Thus patrocinium and precarium became the dual foci of a more decentralized society during the "dark ages."
There is a debate among historians, though I am not sure if it rages, regarding how this institution of precarium became transmuted into classical feudalism. The debate centers on how much the "Germanic" practices of the Carolingians overrode or complemented the "Roman" practice of precarium. By the seventh century the protection which the poor man was obliged to seek from the wealthy "came to be recognized under the name of commendation," by which a poor person should hand himself over or "commend" himself to the guardianship of a rich man in exchange for his protection.
Then, by the time you arrive at the common law of England, several centuries later, the precarious tenure of the Romans has evolved into what was known as "tenancy at will." Littleton, the great jurist of the 15th century, whose classic work Treatise on Tenures detailed the enormously complex English system of land holdings, precisely defined the phenomenon as follows: "Tenant at will is, where lands or tenements are left by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him."
Surely that is enough to more than whet (and possibly satisfy) your interest in precarious.
Copyright © 2004-2010 William R. Long