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On the other hand, the Emphyteusis, if we may so interpret the allusions to it in the Corpus Juris, became a favourite and beneficial modification of property; and it may be conjectured that wherever free farmers existed, it was this tenure which regulated their interest in the land. The Prætor, as has been said, treated the Emphyteuta as a true proprietor.
It is true that the holder of a benefice, and more recently the lord of one of those fiefs into which the benefices were transformed, appears to have owed certain services which were not likely to have been rendered by the military colonist, and were certainly not rendered by the Emphyteuta.
She knew next to nothing of the condition of her people; she only imperfectly understood the relations in which they actually stood to herself, the extent of her power over them, and of their power over her. The mysteries of emphyteusis, emphyteuma, and emphyteuta were still hidden to her, though her steward spoke of them with surprising loquacity and fluency.
In this way, the Roman Prætor gave an immediate right of property to the person who had acquired a Res Mancipi by mere delivery, without waiting for the ripening of Usucapion. Similarly he in time recognised an ownership in the Mortgagee who had at first been a mere "bailee" or depositary, and in the Emphyteuta, or tenant of land which was subject to a fixed perpetual rent.
As in old Roman law, emphyteusis, now spelt emfiteuse, means the possession of rights over another person's land, capable of transmission by inheritance; and to-day, as under the Romans, the holder of such rights is called the emphyteuta, or emfiteuta.
In fact, a sort of garrison-duty, under a system closely resembling that of the military colonies on the Austro-Turkish border, had taken the place of the quit-rent which was the service of the ordinary Emphyteuta. It seems impossible to doubt that this was the precedent copied by the barbarian monarchs who founded feudalism.
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