Chapter XX: Appendix: Some Byzantine Authorities (19)

If the remaining words of this inscription are rightly interpreted, as I think they are, it seems that the policy of encouraging the cultivation of waste and derelict lands was at this time being revived by the government. We have seen it at work in Trajan’s time, promoted by guarantee of privileges and temporary exemption from burdens. But the persons then encouraged to undertake the work of reclamation were to all appearance only the _coloni_ at the time resident on the estate. In the case of these five _saltus_, the offer seems to be made more widely, at least so far as the remaining text may justify such conclusions. It reads like an attempt to attract enterprising squatters of any kind from any quarter. They are offered not merely undisturbed occupation and a heritable tenure of some sort, but actual _possessio_. Now this right, which fills a whole important chapter in Roman law, was one protected by special legal remedies, and even on an imperial domain can hardly have been a matter of indifference. It was quite distinct from mere _possessio naturalis_[1410], which was all that the ordinary _colonus_ enjoyed on his own behalf. This new-type squatter is allowed the same privilege of so many years of grace, free of rent, at the outset of his enterprise, that we have noted above. The details are somewhat different. For olives the free term is ten years: for fruit trees (_poma_, here mentioned without reference to vines) it is seven years. It is expressly provided that the _divisio_, which implies the partiary system of tenancy, shall apply only to such _poma_ as are actually brought[1411] to market. This suggests that in the past attempts to levy the quota as a proportional share of the gross crop, without regard to the needs of the grower’s own household, had been found to discourage reclamation. It has been pointed out that the effect of the new policy would be to create a sort of perpetual leasehold, similar to that known by the Greek term _emphyteusis_, which is found fully established in the later empire. But the land was not all under fruit-crops. The disposal of corn crops is regulated in a singular clause thus. ‘Any shares of dry[1412] crops that shall be due are, during the first five years of occupation, to be delivered to the head-tenant within whose holding[1413] the land occupied is situate. After the lapse of that time they are to go to the account (of the Treasury[1414]).’ Why is the _conductor_ to receive these _partes aridae_? It is reasonably suggested that the intention was to obviate initial obstruction on the part of the big lessee, and thus to give the reclamation-project a fair start.

For we have no right to assume that the parcels of land thrown open to occupation had hitherto been included[1415] in no tenancy. The whole import of the document shews that they often belonged to this or that area held by one or other of the big lessees. That there was at least one _conductor_ to each of the five _saltus_ seems certain. That there was only one to each, is perhaps probable, but hardly to be gathered from the text. Now, so long as the _conductor_ regularly paid his fixed rent (_canon_) and accounted for the taxes (_tributa_) due from the estate, why should the imperial authority step in to take pieces of land (and that the poorest land) out of his direct control? The answer to this is that the Roman law[1416] recognized the right of a private landlord to require of his tenants that they should not ‘let down’ the land leased to them: and proof of neglected cultivation might operate to bar a tenant’s claim for abatement of rent. What was the right of an ordinary landlord was not likely to be waived by an emperor: though his domains might be administered in fact by a special set of fiscal regulations, he claimed a right analogous to that recognized by the ordinary law, and none could challenge its exercise. A big lessee might often find that parts of his holding could not be cultivated at a profit under existing conditions. Slave labour was careless and inefficient; it was in these times also costly, so costly that it only paid to employ it on generous soils. The task-work of _coloni_ did not amount to much, and it was no doubt rendered grudgingly. He was tempted to economize in slaves[1417] and to employ his reduced staff on the best land only. We need not suppose that he got an abatement of his fixed rent from the fiscal authorities: he was most unlikely to attract their attention by making such a claim. He had made his bargain with eyes presumably open. That he had agreed to the _canon_ assures us that it must have been low enough to leave him a comfortable margin for profit. We may be fairly sure that he sat quiet and did what seemed to pay him best.

In the remaining text of this statute there is no reference to _operae_ due from the new squatters, and nothing is said of _coloni_. This does not seem to be due to injury of the stone. The persons for whose benefit the statute is enacted are apparently a new or newly recognized element[1418] in the population of these domains, not _coloni_. But the rights offered to them are expressly referred to as rights granted by the statute of Hadrian. If so, then the _lex Hadriana_ contemplated the establishment of a new peasant class, not _coloni_, and the present statute was merely a revival of Hadrian’s scheme. The men are eventually to pay shares of crops, and Schulten’s[1419] view, that they are on the way to become _coloni_, is possible, if not probable. When he remarks that they might find the position of _coloni_ a doubtful boon, we need not challenge his opinion.

(5) The inscription of Ain el Djemala[1420], a later discovery (1906) is of special importance as belonging to the same neighbourhood as the preceding one. It is a document of Hadrian’s time. It refers to the same group of estates as the above, and deals with the same matter, the right to cultivate waste or derelict parcels of land. Indeed the connexion of the two inscriptions is so close that the parts preserved of each can be safely used to fill gaps in the text of the other. In a few points this inscription, the earlier in date, supplies further detail. The most notable is that another estate, a _saltus_ or _fundus Neronianus_, is mentioned in it, and not in the later one. Thus it would seem that it referred to six estates, a curious coincidence, when we recall the six great African landlords made away with by Nero. Another little addition is that waste lands are defined as marshy or wooded. Also that the land is spoken of as fit for growing olives vines and corn-crops, which supplements a mutilated portion of the Ain Ouassel stone. But in one point the difference between the two is on the face of it difficult to reconcile. In addressing the imperial _procuratores_ the applicants base their request on the _lex Manciana_, the benefit of which they seek to enjoy[1421] as used on the neighbouring _saltus Neronianus_. Here the broken text is thought to have contained a reference to the enhanced prosperity of that estate owing to the concession. In any case we may fairly conclude that the _lex Manciana_ was well known in the district, and its regulations regarded by the farmers as favourable to their interests. But the reply to their petition does not refer to it as the immediate basis of the decision given. The communication (_sermo_) of Hadrian’s procurators is cited as the ground of the leave granted for cultivation of waste lands. Yet the broken sentence at the end of the inscription seems at least to shew that the rules of the _lex Manciana_ were still recognized as a standard, confirmed and perhaps incorporated, or referred to by name, in the _lex Hadriana_ itself. It is ingeniously suggested that the farmers rest their case on the _Manciana_ because the _Hadriana_ was as yet unknown to them; while the reply refers to Hadrian’s statute as authority. Whether the _saltus_ or _fundus Neronianus_, on which the Mancian regulations were in force, is another estate-unit similar to the five named both here and in the later inscription, is a point on which I have some doubts, too little connected with my subject for discussion here. The general scope of the concession granted by Hadrian is the same as the later one of Severus.

If Hadrian issued a statute or statutes regulating the terms of occupancy on the African domains, and some attempts to evade it were met by its reaffirmation under Commodus, it is quite natural that neglect or evasion of it in some other respects should be met by reaffirmation under Severus. This consideration will account for the identity of the concessions granted in these two inscriptions. And it agrees perfectly with the evidence of later legislation in the Theodosian code. The normal course of events is, legislation to protect the poorer classes of cultivators, then evasion of the law by the selfish rich, then reenactment of evaded laws, generally with increased penalties. That under the administrative system of the domains much the same phenomena should occur, is only what we might expect.

XLVIII. DISCUSSION OF THE ABOVE INSCRIPTIONS.

In reviewing the state of things revealed to us by these inscriptions we must carefully bear in mind that they relate solely to the Province Africa. Conditions there were in many ways exceptional. When Rome took over this territory after the destruction of Carthage in 146 BC, it was probably a country divided for the most part into great estates worked on the Carthaginian system by slave labour. Gradually the land came more and more into the hands of Roman capitalists, to whose opulence Horace refers. Pliny tells us that in Nero’s time six[1422] great landlords possessed half the entire area of the Province, when that emperor found a pretext for putting them to death and confiscating their estates. Henceforth the ruling emperor was the predominating landlord[1423] in a Province of immense importance, in particular as a chief granary of Rome. We are not to suppose that any change in the system of large units was ever contemplated. Punic traditions, probably based on experience, favoured the system; though the Punic language, still spoken, seems to have been chiefly confined to the seaboard districts. What the change of lordship effected was not only to the financial advantage of the imperial treasury: it also put an end to the creation of what were a sort of little principalities that might some day cause serious trouble. At this point we are tempted to wonder whether the great landlords, before the sweeping measure of Nero, had taken any steps towards introducing a new organization in the management of their estates. Trajan’s statute refers to a _lex Manciana_ and adopts a number of its regulations. These regulations clearly contemplate a system of head-tenants and sub-tenants, of whom the latter seem to be actual working farmers living of the labour of their own hands, as those who some 65 years later described themselves in appealing to Commodus. The former have stewards in charge of the cultivation of the ‘manor farms’ attached to the principal farmsteads, and evidently employ gangs of slaves: but at special seasons have a right to a limited amount[1424] of task-labour from the free sub-tenants of the small farms. That these labour-conditions were devised to meet a difficulty in procuring enough slaves to carry on the cultivation of the whole big estate, is an inference hardly to be resisted. That we find it on more than one estate indicates that for the time it was serving its purpose. But, in admitting that it probably began under the rule of great private landlords, we must not lose sight of the fact that it was liable to grievous abuse, and that even the regulations of Hadrian did not remove the necessity of pitiful appeals for redress.

An important characteristic of these estates was that they were outside the municipal[1425] system. Each of the so-called _civitates_ had its own charter or statute (_lex_) conforming more or less closely to a common[1426] model, under which the municipal authorities could regulate the management of lands within its territory. But these great estates were independent[1427] of such local jurisdictions. And this independence would seem to date from the times of private ownership, before the conversion of many of them into imperial domains. Mommsen thought that this separate treatment of them as ‘peculiars’ began in Italy under the Republic, and was due to the influence of the landowning aristocracy, who were bent upon admitting no such concurrent authority on their _latifundia_. This may have been so, and the extension of large-scale possessions to the Provinces may have carried the system abroad. At all events there it was, and it suited the convenience of a grasping emperor: he had only to get rid of the present possessor and carry on the administration of the domain as before: his agents stepped into the place of those employed by the late landlord, and only slight modification of the current regulations would be required. He issued a statute for management of ‘crown-property’ as he would for a municipality. It was in effect a local law, and it does not appear that the common law administered by the ordinary courts could override it. The imperial _procurator_ was practically the magistrate charged with its administration in addition to his financial duties, for government and extraction of revenue were really two sides of the same function. Obviously the interests of the emperor, of his agent, of the head-tenants, and of the peasant cultivators, were not the same. But the peasant, who wanted to pay as little as possible, and the emperor who wanted to receive steady returns—as large as possible, but above all things steady—had a common interest in preventing unlawful exactions, by which a stable income was imperilled and the prosperity of the cultivator impaired. On the other hand the _procurator_ and the _conductor_ could only make illicit profits through combining to rob the emperor by squeezing his _coloni_. How to accomplish this was no doubt a matter of delicate calculation. How much oppression would the _coloni_ stand without resorting to the troublesome and risky process of an appeal? We only hear of one or two appeals made with success. Of those that were made and rejected or foiled by various arts, and of those abandoned in despair at an early stage, we get no record. Yet that such cases did occur, perhaps not seldom, we may be reasonably sure.

It is well to remember that Columella, in whose treatise letting of farms to tenants first appears, not as an occasional expedient but as part of a reasoned scheme of estate-management, makes provision for a _procurator_[1428] as well as a _vilicus_. One duty of the former is to keep an eye on the latter. In the management of great estates an atmosphere of mistrust is perhaps to some extent unavoidable. In an agricultural system based on slave labour, this mistrust begins at the very bottom of the structure and reaches to the very top, as is shewn by all experience ancient and modern. Industry in slaves, diligence and honesty in agents and stewards, are not to be relied on when these subordinates have no share in the profit derived from the practice of such virtues. And mistrust of slaves and freedmen did not imply a simple trust in free tenants. Columella only advises[1429] letting to tenants in circumstances that make it impracticable to cultivate profitably by a slave-staff under a steward. The plan is a sort of last resort, and it can only work well if the tenants stay on continuously. Therefore care should be taken to make the position of the _coloni_ permanently attractive. This advice is primarily designed for Italy, but its principles are of general application, and no doubt justified by experience. Their extension to _latifundia_ abroad, coupled with a falling-off in the supply of slaves, led to similar results: great estates might still be in part worked by slave labour under stewards, but letting parcels to small tenants became a more and more vital feature of the system. But to deal directly from a distance with a number of such peasant farmers would be a troublesome business. We need not wonder that it became customary to let large blocks of land, even whole _latifundia_, to big lessees, speculative men who undertook the subletting and rent-collecting of part of their holdings, while they could work the central manor-farm by slave labour on their own account, and generally exploit the situation for their own profit. Thus, as once the _latifundium_ had absorbed little properties, so now its subdivision was generating little tenancies, with chief-tenants as a sort of middlemen between the _dominus_ and the _coloni_. To protect the _colonus_, the powers of the _conductor_[1430] had to be strictly limited: to ease the labour-problem and retain the _conductor_, a certain amount of task-work had to be required of the _colonus_. And this last condition was ominous of the coming serfdom.

If the economic situation and the convenience of non-resident landlords operated to produce a widespread system of letting to small tenants, it was naturally an object to levy the rents in such a form as would best secure a safe and regular return. To exact a fixed money-rent would mean that the peasant must spend time in marketing his produce in order to procure the necessary cash, and thereby lessen the time spent in actual farm-labour. In bad years he would look for an abatement of his rent, nor would it be easy to satisfy him: here was material for disputes and discontent. Such difficulties were known in Italy and elsewhere, and jurists recognized[1431] an advantage of the ‘partiary’ system in this connexion. An abatement of rent due in a particular year need not imply that the landlord lost the amount of abatement for good and all. If the next year produced a ‘bumper’ crop, the landlord was entitled to claim restitution of last year’s abatement in addition to the yearly rent. This too, it seems, in the case of a tenant sitting at a fixed money-rent. But the _partiarius colonus_ is on another footing: he shares gain and loss with the _dominus_, with whom he is a quasi-partner[1432]. It was surely considerations of this kind that led to the adoption of the share-rent system on these great African estates. By fixing the proportion on a moderate scale, the peasant was fairly certain to be able to pay his rent, and he would not be harassed with money transactions dependent on the fluctuations in the price of corn. Under such conditions he was more likely to be contented and to stay on where he was, and that this should be so was precisely what the landlord desired. On the other hand the big _conductor_ might pay rent either in coin or kind. He was a speculator, doubtless well able to take care of his own interests: probably the normal case was that he agreed to a fixed cash payment, and only took the lease on terms that left him a good prospect of making it a remunerative venture. But on this point there is need of further evidence.

When the emperor took over an estate of this kind, such an existing organization would be admirably fitted to continue under the fiscal administration. Apparently this is just what happened. One small but important improvement would be automatically produced by the change. The _coloni_ would now become _coloni Caesaris_[1433] and whatever protection against exactions of _conductores_ they may have enjoyed under the sway of their former lords was henceforth not less likely to be granted and much more certain of effect. To the fiscal officials any course of action tending to encourage permanent tenancies and steady returns would on the face of it be welcome: for it was likely to save them trouble, if not to bring them credit. The only influence liable to incline them in another direction was corruption in some form or other, leading them to connive at misdeeds of the local agents secretly in league with the head-lessees on the spot. That cases of such connivance occurred in the period from Trajan to Severus is not to be doubted. During the following period of confusion they probably became frequent. But it was not until Diocletian introduced a more elaborate imperial system, and increased imperial burdens to defray its greater cost, that the evil reached its height. Then the corruption of officials tainted all departments, and was the canker ever gnawing at the vital forces of the empire. But that this deadly corruption was a sudden growth out of an existing purity is not to be imagined. All this is merely an illustration of that oldest of political truisms, that to keep practice conformable to principle is supremely difficult. The only power that seems to be of any effect in checking the decay of departmental virtue is the power of public opinion. Now a real public opinion cannot be said to have existed in the Roman Empire; and, had it existed, there was no organ through which it could be expressed. And the Head of the State, let him be ever so devoted to the common weal, was too overburdened with manifold responsibilities to be able to give personal attention to each complaint and prescribe an equitable remedy.

How far we are entitled to trace a movement of policy by the contents of these African inscriptions is doubtful. They are too few, and too much alike. Perhaps we may venture to detect a real step onward in the latest of them. The renewal of the encouragement of squatter-settlers[1434] on derelict lands does surely point to a growing consciousness that the food-question was becoming a more and more serious one. Perhaps it may be taken to suggest that the system of leasing the African domains to big _conductores_ had lately been found failing in efficiency. But it is rash to infer much from a single case: and the African Severus may have followed an exceptional policy in his native province. It is when we look back from the times of the later Empire, with its frantic legislation to bind _coloni_ to the soil, and to enforce the cultivation of every patch of arable ground, that we are tempted to detect in every record symptoms of the coming constraint. As yet the central government had not laid its cramping and sterilizing hand on every part of its vast dominions. Moreover the demands on African productivity had not yet reached their extreme limit. There was as yet no Constantinople, and Egypt still shared with Africa the function of supplying food to Rome. Thus it is probably reasonable to believe that the condition of the working tenant-farmers was in this age a tolerable[1435] one. If those on the great domains were bit by bit bound to their holdings, it was probably with their own consent, so far at least that, seeing no better alternative, they became stationary and more or less dependent peasants. In other parts of Africa, for instance near Carthage, we hear of wealthy landowners employing bodies of slaves. Some of these men may well have been Italians: at least they took a leading part later in the rising against Maximin and the elevation of Gordian.

In connexion with the evidence of this group of inscriptions it may be not out of place to say a few words on the view set forth by Heisterbergk, that the origin of the later serf-colonate was Provincial, not Italian. He argues[1436] that what ruined small-scale farming in Italy was above all things the exemption of Italian land from taxation. Landlords were not constrained by the yearly exaction of dues to make the best economic use of their estates. Vain land-pride and carelessness were not checked: mismanagement and waste had free course, and small cultivation declined. The fall in free rustic population was both effect and cause. In the younger Pliny’s time good tenants were already hard to find, but great landlords owned parks and mansions everywhere. In the Provinces nearly all the land was subject to imperial taxation in kind or in money, and owners could not afford to let it lie idle. The practical control of vast estates was not possible from a distance. The direction of agriculture, especially of extensive farming (corn etc) from a fixed centre was little less difficult. There was therefore strong inducement to delegate the business of cultivation to tenants, and to let the difference in amount between their rents and the yearly imperial dues represent the landlord’s profit. Thus the spread of _latifundia_ swallowed up small holdings in the Provinces as in Italy; but it converted small owners into small tenants, and did not merge the holdings into large slave-gang plantations or throw them into pasture. The plan of leasing a large estate as a whole to a big head-tenant, or establishing him in the central ‘manor farm,’ was quite consistent with the general design, and this theory accounts for the presence of a population of free _coloni_, whom later legislation might and did bind fast to the soil.

This argument has both ingenuity and force, but we can only assent to it with considerable reservations. Letting to free _coloni_ was a practice long used in Italy, and in the first century AD was evidently becoming more common. It was but natural that it should appear in the Provinces. Still, taken by itself, there is no obvious reason why it should develope into serfdom. With the admitted scarcity and rising value of labour, why was it that the freeman did not improve his position in relation to his lord, indeed to capitalists in general? I think the presence of the big lessee, the _conductor_, an employer of slave labour, had not a little to do with it. Labour as such was despised. The requirement of task-work to supplement that of slaves on the ‘manor farm’ was not likely to make labour more esteemed. Yet to get his little holding the _colonus_ had to put up with this condition. It may be significant that we hear nothing of _coloni_ working for wages in spare time. Was it likely that they would do so? Then, when the _conductor_ came to be employed as collector of rents and other dues on the estate, his opportunities of illicit exaction gave him more and more power over them; and, combined with their reluctance to migrate and sacrifice the fruits of past labour, reduced them[1437] more and more to a state of _de facto_ dependence. At the worst they would be semi-servile in fact, though free in law; at the best they would have this outlook, without any apparent alternative to escape their fate. This, I imagine, was the unhappy situation that was afterwards recognized by law.

I must not omit to point out that I have said practically nothing on the subject[1438] of municipal lands and their administration by the authorities of the several _res publicae_ or _civitates_. Of the importance of this matter I am well aware, more particularly in connexion with the development of _emphyteusis_ under the perpetual leases granted by the municipalities. In a general history of the imperial economics this topic would surely claim a significant place. But it seems to have little or no bearing on the labour conditions with which I am primarily concerned, while it would add greatly to the bulk of a treatise already too long. So too the incidence of taxation, and the effects of degradation[1439] of the currency, influences that both played a sinister part in imperial economics, belong properly to a larger theme. Even the writers on land-surveying etc, the _agrimensores_ or _gromatici_, only touch my subject here and there when it is necessary to speak of tenures, which cannot be ignored in relation to labour-questions. All these matters are thoroughly and suggestively treated in Seeck’s great history of the Decline and Fall of the ancient world. Another topic left out of discussion is the practical difference, if any, between the terms[1440] _fundus_ and _saltus_ in the imperial domains. I can find no satisfactory materials for defining it, and it does not appear to bear any relation to the labour-question. The meaning of the term _inquilinus_ is a more important matter. If we are to accept Seeck’s ingenious conclusions[1441], it follows that this term, regularly used by the jurists of a house-tenant (urban) as opposed to _colonus_ a tenant of land (rustic), in the course of the second century began to put on a new meaning. Marcus settled large numbers of barbarians on Roman soil. These ‘indwellers’ were labelled as _inquilini_, a word implying that they were imported aliens, distinct from the proper residents. An analogous distinction existed in municipalities between unprivileged ‘indwellers’ (_incolae_) and real _municipes_. Now a jurist’s opinion[1442] in the first half of the third century speaks of _inquilini_ as attached (_adhaerent_) to landed estates, and only capable of being bequeathed to a legatee by inclusion in the landed estate: and it refers to a rescript of Marcus and Commodus dealing with a point of detail connected with this rule of law. Thus the _inquilinate_ seems to have been a new condition implying attachment to the soil, long before the _colonate_ acquired a similar character. For the very few passages, in which the fixed and dependent nature of the colonate is apparently recognized before the time of Constantine, are with some reason suspected of having been tampered with by the compilers of the Digest, or are susceptible of a different interpretation. It is clear that this intricate question cannot be fully discussed here. If these rustic _inquilini_ were in their origin barbarian settlers, perhaps two conclusions regarding them may be reasonable. First, they seem to be distinct from slaves, the personal property of individual owners. For the evidence, so far as it goes, makes them attached[1443] to the land, and only transferable therewith. Secondly, they are surely labourers, tilling with their own hands the holdings assigned to them. If this view of them be sound, we may see in them the beginnings of a serf class. But it does not follow that the later colonate was a direct growth from this beginning. We have noted above several other causes contributing to that growth; in particular the state of _de facto_ fixity combined with increasing dependence, in which the free _colonus_ was gradually losing his freedom. Whether the later colonate will ever receive satisfactory explanation in the form of a simple and convincing theory, I cannot tell: at present it seems best to admit candidly that, among the various influences tending to produce the known result, I do not see my way[1444] to distinguish one as supremely important, and to ignore the effect of others. The opinion[1445] of de Coulanges, that the origin of the later colonate is mainly to be sought in the gradual effect of custom (local custom), eventually recognized (not created) by law, is perhaps the soundest attempt at a brief expression of the truth.

XLIX. THE JURISTS OF THE DIGEST.

For the position of the _colonus_ in Roman Law during the period known as that of the ‘classic’ Jurists we naturally find our chief source of evidence in the Digest. And it is not surprising that here and there we find passages bearing on labour-questions more or less directly. But in using this evidence it is most necessary to keep in mind the nature and scope of this great compilation. First, it is not a collection of laws. Actual laws were placed in the Codex, based on previous Codes such as the Theodosian (439 AD), after a careful process of sifting and editing, with additions to complete the work. This great task was performed by Justinian’s commissioners in 14 months or less. The Justinian Code was confirmed and published in 529 AD, and finally in a revised form rather more than five years later. Secondly, the Digest is a collection of opinions of lawyers whose competence and authority had been officially recognized, and whose _responsa_ carried weight in the Roman courts. From early times interpretation had been found indispensable in the administration of the law; and in the course of centuries, both by opinions on cases and by formal treatises, there had grown up such a mass of written jurisprudence as no man could master. These writings were specially copious in the ‘classic’ period (say from Hadrian to Alexander 117-235). Actual laws are sometimes cited in the form of imperial decisions, finally settling some disputed point. But the normal product of discussion is the opinion of this or that eminent jurist as to what is sound law in a particular question. The different opinions of different authorities are often quoted side by side. If this were all, we might congratulate ourselves on having simply a collection of authentic extracts from named authors, conveying their views in their own words. And no doubt many of the extracts are of this character.

But the position is not in fact so simple as this. Tribonian and his fellow-commissioners were set to work at the end of the year 530. Their task was completed and the _Digesta_ published with imperial confirmation at the end of 533. Now the juristic literature in existence, of which the Digest was to be an epitome superseding its own sources, was of such prodigious bulk that three years cannot have been sufficient for the work. To read, abstract, classify, and so far as possible to harmonize, this mass of complicated material, was a duty surely needing a much longer time for its satisfactory performance. Moreover, as this official Corpus of jurisprudence was designed for reference and citation as an authority in the courts, it had to be[1446] brought up to date. That this necessity greatly increased the commissioners’ burden is obvious: nor less so, that it was a duty peculiarly difficult to discharge in haste, and liable, if hurried, to result in obscurities inconsistencies and oversights. That much of the Digest has suffered from overhaste in its production is now generally admitted. Its evidence is therefore to be used with caution. But on the subject of _coloni_ the main points of interest are attested by witnesses of high authority, such as Ulpian, in cited passages not reasonably suspected of interpolation. And it is not necessary to follow up a host of details. We have only to reconstruct from the law-sources the characteristic features of agriculture and rustic tenancy as it existed before the time of Diocletian; and these features are on the whole significant and clear. Fortunately we are not entirely dependent on collection and comparison of scattered references from all parts of the great compilation. One title (XIX 2 _locati conducti_)[1447] furnishes us with a quantity of relevant matter classified under one head by the editors themselves.

First and foremost it stands out quite clear that the _colonus_ is a free man, who enters into a legal contract as lessee with lessor, and that landlord and tenant are equally bound by the terms of the lease. If any clause requires interpretation owing to special circumstances having arisen, the jurist endeavours to lay down the principles by which the court should be guided to an equitable decision. For instance, any fact by which the productiveness of a farm and therewith the solvency of the tenant are impaired may lead to a dispute. Care is therefore taken to relieve the tenant of responsibility for damage inflicted by irresistible force (natural or human)[1448] or due to the landlord’s fault. But defects of climate and soil[1449] give no claim to relief, since he is presumed to have taken the farm with his eyes open: nor does the failure of worn-out fruit trees, which tenants were regularly bound by their covenant to replace. The chief rights of the landlord[1450] are the proper cultivation of the farm and regular payment of the rent. In these the law duly protects him. The tenant is bound not to let down the land by neglect, or to defraud[1451] the landlord by misappropriating what does not belong to him: rent is secured normally by sureties (_fideiussores_)[1452] found by the tenant at the time of leasing, or sometimes by the fact that all property of his on the farm is expressly pledged[1453] to the lessor on this account. Thus it is the aim of the law to guard the presumably poorer and humbler party against hard treatment, while it protects the man of property against fraud. In other words, it aims at strict enforcement of the terms[1454] of lease, while inclined to construe genuinely doubtful points or mistakes in favour[1455] of the party bound. That landlord and tenant, even in cases of fixed money rent, have a certain community[1456] of interest, seems recognized in the fact that some legal remedies against third persons (for malicious damage etc) could in some cases be employed[1457] by either landlord or tenant. In short, the latter is a thoroughly free and responsible person.

That a tenant should be protected against disturbance[1458] was a matter of course. During the term of his lease he has a right to make his lawful profit on the farm: the landlord is not only bound to allow him full enjoyment (_frui licere_), but to prevent molestation by a third party over whom he has control. Indeed the tenant farmer has in some relations a more positive protection than the landlord himself. Thus a person who has right of _usus_ over an estate may in certain circumstances refuse[1459] to admit the _dominus_; but not the _colonus_ or his staff of slaves employed in the farm-work. Change of ownership can perhaps never be a matter of indifference to the sitting tenant of a farm. But it is the lawyer’s aim to see that the passing of the property shall not impair the tenant’s rights under his current lease. A lease sometimes contained clauses fixing the terms (such as a money forfeit)[1460] on which the contract might be broken; in fact a cross-guarantee between the parties, securing the tenant against damage by premature ejectment and the landlord against damage by the tenant’s premature quitting. The jurists often appeal to local custom as a means of equitable decision on disputed points. But one customary principle seems to be recognized[1461] as of general validity, the rule of _reconductio_. If, on expiration of a lease, the tenant holds on and the landlord allows him to remain, it is regarded as a renewal of the contract by bare agreement (_nudo consensu_). No set form of lease is necessary; but this tacit contract holds good only from year to year. Another fact significant as to the position of the _colonus_ is that he is assumed to have the right to sublet[1462] the farm: questions that would in that case arise are dealt with as matters of course. I suppose that a lease might be so drawn as to bar any such right, but that in practice it was always or generally admitted. Again, it is a sign of his genuinely independent position in the eye of the law that his own oath, if required of him, may be accepted[1463] as a counter-active plea (_exceptio iurisiurandi_) in his own defence, when sued by his landlord for damage done on the farm.

On the economic side we have first to remark that the _colonus_ is represented as normally a man of small means. It is true that in the Digest _conductor_ and _colonus_ are not clearly[1464] distinguished, as we find them in the African inscriptions and in the later law. For the former is simply the counterpart of _locator_, properly connoting the relation between the contracting parties: _colonus_ expresses the fact that the cultivation (_colere_) of land belonging to another devolves upon him by virtue of the contract. Every _colonus_ is a _conductor_, but not every _conductor_ a _colonus_. Now custom, recognized by the lawyers, provided a means of supplying the small man’s need of capital. To set him up in a farm, the landlord equipped him with a certain stock (_instrumentum_). This he took over at a valuation, not paying ready money for it, but accepting liability[1465] to account for the value at the end of his tenancy. The stock or plant included[1466] implements and animals (oxen, slaves, etc), and a miscellaneous array of things, of course varying with the nature of the farm and local custom. To this nucleus he had inevitably to add belongings[1467] of his own, which were likely to increase with time if the farm prospered in his hands. His rent[1468] might be either a fixed yearly payment in cash or produce, or a proportionate share of produce varying from year to year. The money-rent[1469] seems to have been the usual plan, and it was in connexion therewith that claims for abatement generally arose. The impression left by the frequent references to _reliqua_ in the Digest, and the experiences of the younger Pliny, is that tenant-farmers in Italy were habitually behind with their rents and claiming[1470] _remissio_. This is probably true of the period (say) 100-250 AD, with which we are here concerned. It was probably a time of great difficulty for both landlords and tenants, at least outside the range of suburban market-gardening. Signs are not lacking that want of sufficient capital[1471] cramped the vigour of agriculture directly and indirectly. Improvements might so raise the standard of cultivation on an estate as to leave an awkward problem for the owner. Its upkeep on its present level might need a large capital; tenants of means were not easy to find, and subdivision into smaller holdings would not in all circumstances provide a satisfactory solution. Moreover, if the man of means was not unlikely to act independently, in defiance of the landlord, the small man was more likely to take opportunities of misappropriating things to which he was not entitled.

All these difficulties, and others, suggest no great prosperity in Italian agriculture of the period. That on certain soils farming did not pay, was as well known[1472] to the jurists as to other writers. And one great cause of agricultural decline appears in their incidental remarks as clearly as in literature. It was the devotion of much of the best land in the best situations to the unproductive parks and pleasure-grounds of the rich. This can hardly be laid to the account of the still favoured financial position of Italy as compared with the Provinces, for we find the same state of things existing late in the fourth century, when Italy had long been provincialized and taxed accordingly. It was fashion, and fashion of long standing, that caused this evil. And this cause was itself an effect of the conditions of investment. The syndicates for exploiting provincial dues had gone with the Republic. State contracts and industrial enterprises were not enough to employ all the available capital. The ownership of land, now that politics were not a school of ambition, was more than ever the chief source of social importance. A man who could afford to own vast unremunerative estates was a great personage. We may add that such estates, being unremunerative, were less likely to attract the fatal attention of bad emperors, while good rulers deliberately encouraged rich men to invest fortunes in them as being an evidence of loyalty to the government. The uneconomic rural conditions thus created are plainly referred to in the staid remarks of the jurists. We read of estates owned for pleasure (_voluptaria praedia_)[1473]: of cases where it may be doubted[1474] whether the _fundus_ does not rather belong to the _villa_ than the _villa_ to the _fundus_: and the use of the word _praetorium_[1475] (= great mansion, palace, ‘Court’) for the lord’s headquarters on his demesne becomes almost official in the mouth of lawyers. Meanwhile great estates abroad could be, and were, profitable to their owners, who drew rent from tenants and were normally non-resident. Yet _praetoria_ were sometimes found even in the Provinces.

In connexion with this topic it is natural to consider the questions of upkeep and improvements. The former is simple. As the tenant has the disposal of the crops raised and gathered (_fructus_), he is bound[1476] to till the soil, to keep up the stock of plants, and to see that the drainage of the farm is in working order. Further detail is unnecessary, as his liability must be gauged by the state of the farm when he took it over. Improvements look to the future. From the lawyers we get only the legal point of view, which is of some interest as proving that the subject was of sufficient importance not to be overlooked. Now it seems certain that a _conductor_ or _colonus_ had a right of action to recover[1477] from the _dominus_ not only compensation for unexhausted improvements, but his whole outlay on them, if shewn to have been beneficial. Or his claim might rest on the fact that the project had been approved[1478] by the landlord. But it might happen that a work beneficial to the particular estate was detrimental to a neighbouring one. In such a case, against whom—landlord or tenant—had the owner of that estate a legal remedy? It was held that, if the tenant had carried out the work in question[1479] without his landlord’s knowledge, he alone was liable. If, as some held, the landlord was bound to provide a particular remedy, he could recover the amount paid under this head from his tenant. To insure the owner against loss from the acts of his lessee was evidently an object of the first importance, and this is in harmony with the Roman lawyers’ intense respect for rights of property. The general impression left on the reader of their utterances on this subject is that a landlord, after providing a considerable _instrumentum_, had done all that could reasonably be expected from him. Improvements, the desirability of which was usually discovered through the tenant’s experience, were normally regarded as the tenant’s business: it was only necessary to prevent the landlord from arbitrarily confiscating what the tenant had done to improve his property. Obviously such ‘improvements’ were likely to occasion disputes as to the value of the work done: but it was the custom of the countryside to refer technical questions of this kind to the arbitration of an impartial umpire (_vir bonus_), no doubt a neighbour familiar with local circumstances. On the whole, it does not appear that the law treated the _colonus_ badly under this head, and the difficulty of securing good tenants may be supposed to have guaranteed him against unfair administration.

A great many more details illustrating the position of _coloni_ as they appear in the Digest could be added here, but I think the above will be found ample for my purpose. The next topic to be dealt with is that of labour, so far as the references of the lawyers give us any information. First it is to be noted that the two systems[1480] of estate-management, that of cultivation for landlord’s account by his _actor_ or _vilicus_, and that of letting to tenant farmers, were existing side by side. The latter plan was to all appearance more commonly followed than it would seem to have been in the time of Columella, but the former was still working. A confident opinion as to the comparative frequency[1481] of the two systems is hardly to be formed on Digest evidence: for in rustic matters the interest of lawyers was almost solely concerned with the relations of landlord and tenant. What an owner did with his own property on his own account was almost entirely his own business. There are signs that a certain change in the traditional nomenclature represents a real change of function in the case of landlords’ managers. The term _actor_ is superseding[1482] _vilicus_, but the _vilicus_ still remains. He would seem to be now more of a mere farm-bailiff, charged with the cultivation of some part or parts of an estate that are not let to tenants. It may even be that he is left with a free hand and only required to pay a fixed[1483] yearly return. If so, this arrangement is not easily to be distinguished from the case of a slave _colonus_ or _quasi colonus_[1484] occupying a farm. The financial and general supervision of the estate is in the hands of the _actor_[1485], who collects all dues, including rents of _colonie_ and is held to full account[1486] for all these receipts as well as for the contents of the store-rooms. He is a slave, but a valuable and trusted man: it is significant that the manumission[1487] of _actores_ is not seldom mentioned. Evidently the qualities looked for in such an agent were observed to develope most readily under a prospect of freedom. But, so long as he remained _actor_ of an estate, he could be regarded as part of it: in a bequest the testator could include him as a part[1488], and often did so: and indeed his peculiar knowledge of local detail must often have been an important element in its value. To employ such a person in the management of an estate, with powerful inducements to good conduct, may have solved many a difficult problem. We may perhaps guess that it made the employment of a qualified legal agent (_procurator_) less often necessary, at least if the _actor_ contrived to avoid friction with his master’s free tenants.

Whether an estate was farmed for the owner by his manager, or let to tenants, or partly on one system partly on the other, it is clear that slave-labour is assumed as the normal basis of working. For the _colonus_ takes over slaves supplied by the _dominus_ as an item of the _instrumentum_. And there was nothing to prevent him from adding slaves of his own, if he could afford it and thought it worth his while to employ a larger staff. Whether such additions were often or ever made, we must not expect the lawyers to tell us; but we do now and then hear[1489] of a slave who is the tenant’s own. Such a slave might as part of the tenant’s goods be pledged to the landlord as security for his rent, but he would not be a part of the estate of which the landlord could dispose by sale or bequest. In such a case the slaves might be regarded[1490] as accessories of the _fundus_, if it were so agreed. This raised questions as to the degree of connexion that should be treated as qualifying a slave to be considered an appurtenance of a farm. The answer was in effect that he must be a member of the regular staff. Mere temporary employment on the place did not so attach him, mere temporary absence on duty elsewhere did not detach him. A further question was whether all slaves in any sort of employment on the place were included, or only such as were actually engaged in farm work proper, cultivation of the soil, not those employed in various subsidiary[1491] industries. These questions the jurists discussed fully, but we cannot follow them here, as their legal importance is chiefly in connexion with property and can hardly have affected seriously the position of tenants. But it is interesting to observe that the lawyers were feeling the necessity of attempting some practical classification. The distinction[1492] between _urbana_ and _rustica mancipia_ was old enough as a loose conversational or literary one. But, when rights of inheritance or legacy of such valuable property were involved, it became important to define (if possible) the essential characteristics of a ‘rustic’ slave.